United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
alleges that while employed by Defendant, she was incessantly
sexually harassed by her supervisor, Thomas Dulaney
(“Dulaney”). (Docket #14 at 2-4). Plaintiff
rebuffed his advances for months. Id. at 4-6.
Eventually, she complained to upper management, which
confronted Dulaney about his behavior and told him to stop.
Id. at 6-7. At that point, Plaintiff maintains that
Dulaney began a campaign of retaliation against her which
ultimately led to her being unjustifiably sent home one day,
after which she did not return. Id. at 7-9.
Plaintiff sues Defendant under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”). She brings claims of a sexually
hostile work environment, quid pro quo sexual harassment,
retaliation, and a claim of constructive discharge (which,
unlike the others, is not expressly grounded in Title VII).
Id. at 10-13.
March 30, 2018, Defendant filed a motion for partial summary
judgment as to Plaintiff's second, third, and fourth
claims. (Docket #18). Defendant admits that disputes of fact
preclude pre-trial disposition of the hostile work
environment claim. (Docket #19 at 6 n.2). Plaintiff responded
to the motion on April 30, 2018, (Docket #25), and Defendant
replied on May 14, 2018, (Docket #30). For the reasons
explained below, Defendant's motion must, in most
material respects, be denied.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the “court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A “genuine” dispute of
material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The Court construes all
facts and reasonable inferences in a light most favorable to
the non-movant. Bridge v. New Holland Logansport,
Inc., 815 F.3d 356, 360 (7th Cir. 2016).
assessing the parties' proposed facts, the Court must not
weigh the evidence or determine witness credibility; the
Seventh Circuit instructs that “we leave those tasks to
factfinders.” Berry v. Chicago Transit Auth.,
618 F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies
in a witness's testimony “‘create an issue of
credibility as to which part of the testimony should be given
the greatest weight if credited at all.'” Bank
of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d
1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex
Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The
non-movant “need not match the movant witness for
witness, nor persuade the court that [its] case is
convincing, [it] need only come forward with appropriate
evidence demonstrating that there is a pending dispute of
material fact.” Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 921 (7th Cir. 1994).
following facts are material to the disposition of
Defendant's motion. They are drawn from the parties'
factual briefing, (Docket #28 and #32), unless otherwise
noted. In accordance with the standard of review,
the facts are presented in a light most favorable to
Plaintiff. This means that much of Dulaney's testimony
(and others aligned with Defendant) must be discounted as
contrary to that of Plaintiff. In the interest of brevity,
the Court will only discuss the most salient disputes of
is a car dealership in Glendale. It is divided into various
departments, including sales, service, business development
(“BDC”), and administration. Defendant generally
employs ten to fourteen salespeople and two to three sales
managers. A general sales manager oversees the entire sales
department. Though their duties are focused elsewhere, a
general sales manager has the power to directly supervise,
discipline, and/or fire salespeople should they choose. The
general sales manager reports directly to Greg Hobbs
(“Hobbs”), who runs the business on behalf of his
2013, Plaintiff was looking for a new job; her current
employer had moved its offices outside the range of a
reasonable commute. Through her son, who worked in
Defendant's service department, she learned of a position
in the BDC. Though she had no experience in the dealership
industry, Plaintiff applied for the job and was hired in July
2013. In her work in the BDC, Plaintiff sold vehicles over
the phone and brought customers into the dealership.
light of her aptitude for this work, and at the encouragement
of a supervisor, Plaintiff moved to the sales department near
the beginning of 2014. Salespeople work on a commission-only
basis. They are provided a draw each month but must cover
that with commissions. New salespeople are also promised a
base salary for the first few months while they learn about
the vehicles they sell and Defendant's sales procedures.
Plaintiff took the guaranteed salary for a short time but her
commissions soon exceeded that sum.
Plaintiff transitioned to sales, the general sales manager
was Stuart Krumm (“Krumm”). Dulaney was hired in
late March 2014 as a sales manager. In June 2014, Krumm left
Defendant's employ and Dulaney took over as the general
sales manager. Dulaney's initial interactions with
Plaintiff showed interest in getting to know her on a
personal level. Dulaney also encouraged Plaintiff to meet
with him outside the dealership setting. Plaintiff was not
comfortable with this suggestion and thought such a meeting
would be inappropriate. She tried to deflect Dulaney towards
a group meeting with her and other employees, but he was only
interested in a one-on-one outing with Plaintiff.
that initial invitation, Dulaney continued to approach
Plaintiff with uncomfortably personal questions. These
conversations included more requests to see Plaintiff outside
of work, such as telling Plaintiff that they should
“get together” or that Dulaney would take her out
to dinner. Though Plaintiff made it clear that she did not
date co-workers, particularly supervisors, Dulaney was
undeterred, and responded that their work relationship would
not be a problem.
Plaintiff's consistent rejections, Dulaney ramped up the
pressure on her. He asked her why she would not see him
outside of work while insisting that such a meeting was a
good idea. Dulaney said that the two would be a good fit
together. He also suggested that she come over to his home
for dinner because he was a good cook. In total, Dulaney
asked Plaintiff out on romantic dates approximately fifteen
to twenty times.Plaintiff always answered with a
“no” or some other form of rejection.
comments strongly implied the sexual nature of his advances.
He variously told Plaintiff that they should have a romantic
evening, intimate dinner, or a nice night together. Dulaney
asked whether Plaintiff's son, with whom she lived at the
time, would be uncomfortable if she did not return home one
evening. He further asked Plaintiff if she was a sensual
woman. Dulaney also commented on Plaintiff's appearance,
stating that she looked great, particularly for someone of
her age, and at one time mentioned her clothing and asked if
she was trying to look sexy.
Dulaney would approach Plaintiff, he would do so at her desk
and speak to her in hushed tones. He repeatedly told
Plaintiff that she should not disclose his advances to
Defendant's other employees. Despite his efforts towards
discretion, other employees noticed Dulaney hovering around
Plaintiff and speaking quietly to her. Plaintiff's
co-workers began jokingly referring to her as “Mrs.
Dulaney” or to Dulaney as Plaintiff's boyfriend.
sexual harassment reporting policy generally provides that
the aggrieved employee should report the problem to a manager
or Hobbs himself. Plaintiff sensed that her rejections were
beginning to irritate Dulaney. Plaintiff worried that if she
reported Dulaney's behavior, and someone confronted him,
there would be negative repercussions for her. Indeed,
another sales manager described Dulaney as vindictive.
her concerns, at a company party in mid-August 2014,
Plaintiff spoke with Hobbs and a co-worker about
Dulaney's advances. Plaintiff told them that Dulaney was
making her very uncomfortable. Plaintiff also mentioned that
she was afraid that Dulaney would become angry if she
continued to reject him. Hobbs asked Plaintiff what she
wanted him to do about it, but Plaintiff said she did not
also complained to other management personnel. Jeannie
Shetler (“Shetler”) is Hobbs' sister-in-law
and served as Defendant's IT manager. Brett Dumstrey
(“Brett”) was a sales manager. Jeremy Olson
(“Olson”) was a financial manager. Plaintiff told
Shetler, Brett, and Olson about Dulaney's conduct. Brett
alone confronted Dulaney about the matter. Dulaney responded
by threatening to fire him. In August 2014, Brett also told
Hobbs about Dulaney's advances on Plaintiff, but Hobbs
did not take immediate action.
based on the conversation at the August 2014 party, Hobbs
spoke with Dulaney in mid-September. Hobbs asked that Dulaney
maintain a professional relationship with Plaintiff. Dulaney
denied wrongdoing and Hobbs did nothing further to address
the matter. After that meeting, Dulaney did not continue to
ask Plaintiff out on dates.
time, however, Plaintiff noticed a significant shift in
Dulaney's behavior. He became hypercritical of her job
performance and was generally angry and verbally abusive
towards her. Plaintiff felt that this behavior was directed
at her more than any other employee. Plaintiff became
miserable at work and feared Dulaney's almost daily
outbursts at her. During one such instance, Olson interrupted
and pulled Plaintiff into his office. Olson said he wanted to
“break that up” and joked with Plaintiff, stating
“why don't you just fuck him and get it over with,
ha ha ha.” (Docket #27-1 at
sales began to decline in October 2014. From December 2014 to
February 2015, Plaintiff sold just six cars each month,
resulting in monthly commissions of between $1, 500 to $2,
500. This caused Plaintiff substantial financial hardship. In
fact, she had to borrow money from friends and family to meet
her living expenses. Defendant asserts that Plaintiff's
sales throughout her tenure were relatively consistent.
See (Docket #32 ¶ 100) (chart of
Plaintiff's sales and earnings from March 2014 through
April 2015). Defendant notes that Plaintiff sold between six
and fourteen cars for the majority of the months she was
employed as a salesperson. Plaintiff counters that ...