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McNeil v. DHH LLC

United States District Court, E.D. Wisconsin

June 6, 2018

ELIZABETH MCNEIL, Plaintiff,
v.
DHH LLC, doing business as DAVID HOBBS HONDA, Defendant.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         Plaintiff 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.

         On 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.

         2. STANDARD OF REVIEW

         Federal 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).

         In 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).

         3. RELEVANT FACTS

         The 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.[1] 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 fact.

         Defendant 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 father David.[2]

         In 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.

         In 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.

         When 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.

         Following 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.

         Despite 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.[3]Plaintiff always answered with a “no” or some other form of rejection.

         Dulaney's 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.

         When 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.

         Defendant's 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.

         Despite 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 know.

         Plaintiff 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.

         Instead, 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.

         At that 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 110:25-111:15).[4]

         Plaintiff's 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 ΒΆ 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 ...


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