Quantock, Cathey L. v. Shared Marketing ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2258
CATHEY QUANTOCK,
Plaintiff-Appellant,
v.
SHARED MARKETING SERVICES,
INC., and RICK LATTANZIO,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 6571—James F. Holderman, Judge.
____________
ARGUED OCTOBER 1, 2002—DECIDED DECEMBER 12, 2002
____________
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
PER CURIAM. Cathey Quantock claims that she was
subjected to unlawful sexual harassment when her boss
asked her for sex, she reported it to a supervisor, and her
employer did nothing about it. She sued her employer,
Shared Marketing Services, Inc., for sexual harassment
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., and her boss, Rick Lattanzio, for intention-
al infliction of emotional distress. The parties filed cross-
motions for summary judgment. The district court granted
defendants’ motion for summary judgment on both counts,
and denied Quantock’s motion for partial summary judg-
ment as moot. We reverse the district court’s judgment
2 No. 02-2258
regarding the sexual-harassment count against Shared
Marketing, but affirm its judgment regarding Quantock’s
claim of intentional infliction of emotional distress against
Lattanzio.
1. Facts
Quantock worked as an account supervisor for Shared
Marketing. On the morning of January 24, 2001, she met
with Lattanzio, the president of Shared Marketing, to
discuss a meeting with a client occurring later that morn-
ing. As Quantock set forth in her deposition, the topic of
their conversation during the meeting changed quickly from
client issues to Lattanzio’s desire to have sex with her.
Quantock testified that Lattanzio propositioned her for
sex three times during the meeting. First, he asked for
oral sex. As soon as she refused, she testified, he asked her
to participate in a “threesome.” After another refusal, she
claims he suggested that he call her on the telephone
so that they could have “phone sex.” She says she refused
that request as well. Quantock describes other instances
of sexual harassment, including prior occasions when Lat-
tanzio grabbed her breasts and forcibly kissed her, but
says that these other alleged incidents occurred three or
four years earlier.
One week after Lattanzio’s alleged propositions, Shared
Marketing transferred Quantock to another position, that
of account executive. In her new position, Quantock re-
ceived the same salary and benefits, but had different job
responsibilities. To meet the changing needs of Shared
Marketing’s clients, Quantock’s new position required her
to focus specifically on three of the company’s accounts
(rather than overseeing general company operations, as
entailed in her first position). After the transfer, Quantock
claims that she reported the January 24 sexual harass-
ment incident with Lattanzio to one of her supervisors,
No. 02-2258 3
Tim Rounds, as required under Shared Marketing’s sexual
harassment policy. Quantock stayed at Shared Marketing
for another month, but then resigned because the harass-
ment and subsequent change in position left her shocked,
devastated, and humiliated. She states that she obtained
a prescription from her doctor for Xanax, to help reduce
the anxiety caused by the harassment, and also sought
counseling from a psychologist, who described Quantock
as being in “shock and then dismay and then hurt and
disappointment.”
The defendants tell a different story. Defendants deny
that Lattanzio ever propositioned or harassed Quantock.
Defendants also dispute the allegation that Quantock
suffered anxiety on account of the incident, claiming that
she had been seeing a therapist since 1994, and taking
Xanax since 1996, well before the alleged harassment.
Quantock filed a charge of employment discrimination
with the EEOC based upon Lattanzio’s alleged sexual
harassment and Shared Marketing’s failure to take any
remedial action and received a right-to-sue letter. Quantock
thereafter filed suit in the district court. The district
court granted summary judgment to the defendants on
both the sexual-harassment count against Shared Mar-
keting and the intentional-infliction-of-emotional-distress
count against Lattanzio. The district court held that, even
accepting Quantock’s account of events as true, Lattanzio’s
alleged sexual propositions to Quantock did not rise to
the level of actionable harassment because they occurred
on only one occasion, lasted at most minutes, and were
not accompanied by a threat of physical contact. The court
also held that the alleged conduct was not so outrageous
as to “go beyond all bounds of human decency,” and there-
fore did not constitute intentional infliction of emotional
distress. Quantock filed a timely appeal.
4 No. 02-2258
2. Analysis
In order to survive summary judgment, Quantock needed
to come forward with specific facts showing that there
is a genuine issue for trial. Fed. R. Civ. P. 56(c); Patt v.
Family Health Sys., Inc., 280 F.3d 749, 752 (7th Cir. 2002).
Quantock argues on appeal that she did introduce evi-
dence creating genuine issues of fact for trial on both
her sexual-harassment and intentional-infliction-of-emo-
tional-distress claims. We will consider each of her claims
in turn, beginning with her claim of sexual harassment.
2(a). Sexual harassment
To prevail on her claim of sexual harassment based on
hostile work environment,1 Quantock must establish that:
(1) she was subjected to unwelcome sexual advances, re-
1
Before the district court, Quantock made her Title VII claim
on the additional basis of a quid pro quo harassment theory. The
district court denied her claim on that basis, however, based on
its finding that she had not suffered a tangible adverse employ-
ment action. The district court noted that, although Quantock
had been “transferred” to a position with a new title, her wages,
employment benefits, and work space had remained the same.
This Court has indeed held that an adverse employment action
is something more than a mere “alteration in job responsibilities.”
Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002). For a job
transfer to be a “tangible adverse action,” it must be accompanied
by “a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material re-
sponsibilities, or other indices that might be unique to a particu-
lar situation.” Id. In this case, there is uncontroverted evidence
that Quantock’s transfer was a temporary change in her job
responsibilities, rather than a “significant diminishment” of
material responsibilities. Thus, this Court will not disturb the
district court’s finding that Quantock did not suffer a material
adverse employment action.
No. 02-2258 5
quests for sexual favors, or other verbal or physical conduct
of a sexual nature; (2) the conduct was severe or pervasive
enough to create a hostile work environment; (3) the
conduct was directed at her because of her sex; and (4)
there is a basis for employer liability. Hilt-Dyson v. City
of Chicago, 282 F.3d 456, 462-63 (7th Cir. 2002); Haugerud
v. Amery School Dist., 259 F.3d 678, 696-97 (7th Cir. 2001).
In order to establish the “hostile work environment”
element, the plaintiff must submit evidence showing that
she was subjected to conduct “ ‘so severe or pervasive as
to alter the conditions of [her] employment and create
an abusive working environment.’ ” Hilt-Dyson, 282 F.3d
at 462-63 (citation omitted). Moreover, to qualify as “hos-
tile,” the work environment must be “both objectively and
subjectively offensive. . . .” Hilt-Dyson, 282 F.3d at 463.
The district court in this case found that Quantock had
failed to establish a prima facie claim, insofar as the al-
leged harassment was not sufficiently “severe or perva-
sive.” Quantock v. Shared Marketing Servs., Inc., et al.,
No. 01 C 6571 (N.D. Ill. May 9, 2002). The district court
noted that the incident of harassment was an isolated
occurrence, short in duration, and that it involved no
physical touching. Based on those observations, the dis-
trict court concluded that there was no genuine issue of
fact for trial on Quantock’s discrimination claim.
In determining whether conduct is “severe or pervasive”
enough to alter the conditions of employment, we look
at “the totality of the circumstances, including . . . the
‘frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating or
a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’ ” Murray
v. Chicago Transit Authority, 252 F.3d 880, 889 (7th Cir.
2001). Though infrequent, Lattanzio’s alleged outright
solicitation of numerous sex acts from Quantock is consid-
erably more “severe” than the type of “occasional vulgar
6 No. 02-2258
banter, tinged with sexual innuendo” that has previously
been deemed to fall short of the hostile workplace standard.
See, e.g., McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 480
(7th Cir. 1996) (finding that three “sexually suggestive”
comments by a co-worker did not “unreasonably interfere
[ ]” with the plaintiff’s working environment). Given that
Lattanzio made his repeated requests for sex directly to
Quantock, see Patt v. Family Health Sys., Inc., 280 F.3d
749, 754 (7th Cir. 2002) (sexual innuendo not “severe”
because made out of the presence of the claimant), and in
light of Lattanzio’s significant position of authority at
the company and the close working quarters within
which he and Quantock worked, a reasonable jury could
find the sexual propositions sufficiently “severe,” as an
objective matter, to alter the terms of Quantock’s employ-
ment.2
Moreover, there remains a triable issue of fact as to
whether Quantock herself viewed that conduct as “severe
or pervasive” (the “subjective” component of the hostile
environment analysis). Quantock has presented evidence
that she reported the conduct to a supervisor, sought treat-
ment from a psychologist, and was “humiliated” on account
2
The district court focused not on the severity of Lattanzio’s
alleged solicitations, but instead on their lack of pervasiveness.
The court concluded that although Quantock submitted evidence
of three solicitations of sex, the solicitations occurred during
a single incident and over the course of only a few minutes, and
thus no reasonable person could conclude that the conduct
was pervasive enough to have created an abusive environment.
But abusive conduct “need not be both severe and pervasive to
be actionable; one or the other will do.” Hostetler v. Quality
Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) (emphasis added).
Given the severe nature of Lattanzio’s alleged conduct, we are
of the opinion that the district court erred in concluding that
Quantock’s sexual-harassment claim fails because the conduct
was not also pervasive.
No. 02-2258 7
of Lattanzio’s actions. A reasonable jury could therefore
conclude that she did, in fact, view Lattanzio’s alleged
conduct as “severe,” and that she did, as a result, experi-
ence a “hostile” workplace.
Quantock also submitted evidence establishing the
remaining elements of her sexual-harassment claim—that
the conduct was directed at her because of her sex, and
that there was a basis for employer liability. See Hilt-
Dyson, 282 F.3d at 462-63. Given the nature of the harass-
ing conduct—a male supervisor’s direct requests for sex
from his female subordinate—a reasonable jury could
conclude that the harassment was directed at Quantock
“because of her sex.” See Haugerud v. Amery School Dist.,
259 F.3d 678, 695 (7th Cir. 2001) (“[I]t would be reasonable
to conclude that a male [employee] would not have been
treated the same way.”). Moreover, Quantock’s evidence
that Lattanzio was her supervisor was sufficient to estab-
lish that Shared Marketing may be held liable for
Lattanzio’s conduct. See Hall, 276 F.3d at 355 (“An em-
ployer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by
a supervisor with immediate (or successively higher)
authority over the employee.” (internal citation omitted)).
Because there remain issues of fact as to each element
of Quantock’s Title VII claim, the district court should
not have granted summary judgment to Shared Marketing
on Quantock’s sexual-harassment claim based on hostile
work environment.
2(b). Intentional infliction of emotional distress
Next, we turn to Quantock’s intentional-infliction-of-emo-
tional-distress claim, on which the district court granted
summary judgment in Lattanzio’s favor. The district court
denied Quantock’s tort claim on the merits, finding that
Lattanzio’s alleged acts were not “extreme and outra-
8 No. 02-2258
geous”. See Graham v. Commonwealth Edison Co., 742
N.E.2d 858, 866 (Ill. App. Ct. 2000). Even if the court
erred in doing so, however, summary judgment on this
claim should nonetheless be affirmed.
The Illinois Human Rights Act preempts tort claims that
are “inextricably linked” to allegations of sexual harass-
ment and requires that such claims be brought only be-
fore the Illinois Human Rights Commission. Illinois Hu-
man Rights Act, 775 ILCS 5/2-102(D); 775 ILCS 5/8-111(C);
Maksimovic v. Tsogalis, 687 N.E.2d 21, 22-23 (Ill. 1977).
Preemption extends to claims of intentional infliction of
emotional distress that depend on allegations of sexual
harassment. See Jansen v. Packaging Corp. of Am., 123
F.3d 490, 493 (7th Cir. 1997) (per curiam), aff’d in non-
relevant part sub nom. Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998); see also Krocka v. City of Chicago, 203
F.3d 507, 516-17 (7th Cir. 2000) (IHRA preempted
intentional-infliction-of-emotional-distress claim that was
based upon comments referring to employee’s disability).
Quantock’s claim of intentional infliction of emotional
distress is supported by factual allegations identical to
those set forth in her Title VII sexual-harassment claim.
Summary judgment should therefore be affirmed on the
basis of preemption. Penn v. Harris, 296 F.3d 573, 576 (7th
Cir. 2002).
3. Conclusion
For the preceding reasons, we AFFIRM that part of the
district court’s order granting summary judgment on
Quantock’s intentional-infliction-of-emotional-distress claim
and REVERSE the district court’s grant of summary judg-
ment on her sexual-harassment claim.
No. 02-2258 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-12-02