Opinion
Cause No. TH99-0142-C-M/H
December 18, 2000
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on defendant Tri Manufacturing, Inc.'s ("Tri") motion for summary judgment on plaintiff Lisa Davis' ("Davis") claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; the Equal Pay Act, 29 U.S.C. § 201, et seq.; and Indiana common law. Davis had previously voluntarily dismissed another claim under the Violence Against Women Act, 42 U.S.C. § 13981, et seq. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS in part and DENIES in part Tri's motion.
I. FACTUAL BACKGROUND
Tri Manufacturing, Inc., located in Terre Haute, Indiana, manufactures aerospace parts. Stmt. of Material Facts ¶ 1. Davis began working for Tri as a CNC Machinist on May 13, 1998. Tri classified Davis as a "C-1" machinist. Id. ¶¶ 2, 4. In June, 1999, Davis' employment with Tri ended when she moved with her husband to Paris, Illinois. Davis Dep. at 13. During her thirteen months at Tri, Davis alleges that she suffered various forms of discrimination, including sexual harassment and disparate treatment because of her sex with respect to her compensation.
The Court's reference to the "Statement of Material Facts" includes facts submitted by Tri and additional facts submitted in Davis' "Statement of Additional Material Facts."
A. DAVIS' ALLEGATIONS OF SEXUAL HARASSMENT 1. The Incident With Dennis Glossop
One day while at work Davis was having difficulty with a machine that was producing non-conforming parts. Davis Dep. at 220-221. She brought the problem to the attention of her supervisor, Bill Canary. Because he was inexperienced in that area, Canary sought the help of Dennis Glossop, a supervisor from the third shift. Id. at 221; 223. Glossop said "Let's just take a look at it and see what's happening," and winked at Davis. Id. at 221. After Davis explained to Glossop what she thought the problem was, Glossop winked at her again and told her that she should not have run the part. Id. at 222. In response, Davis said "That's fine. You do what you want to do. Write me up. You guys figure it out, I'm going to go back out to the shop," and proceeded toward the door. Id. at 222. At that point, Glossop grabbed her arm, put his hand against the top of the door, held the door shut, told her she was not going anywhere, and told her that she was going to sit down and listen to him. Id. at 222; 225-226. Glossop was angry and Davis felt intimidated. Id. at 254-255. As soon as Glossop touched Davis' arm, she pulled away and told him that he better never touch her again. Davis Dep. at 226. Although Glossop then tried to reason with her, Davis left the room. Id. at 226. When Glossop followed her out and told her to get back in the office, Davis told him "You better never fucking touch me again." Id. at 227. Glossop said, "I didn't hurt you." Id. at 227. Davis does not remember if Glossop hurt her arm, but his grasping of her did not leave any marks. Id. at 228. The whole confrontation between Glossop and Davis lasted no longer than two minutes. Stmt. of Material Facts ¶ 14.
Davis reported Glossop's actions to Dick McClain, another supervisor; Dave Heavin, Director of Human Resources; and Tim Haller, the president of Tri. Id. ¶¶ 45-46. Heavin took a written statement from Glossop, but not from Davis. Id. ¶ 47. On March 8, 1999, Heavin prepared a memorandum regarding his investigation of Davis' complaint. Id. ¶ 48. Heavin concluded that although the facts were disputed, Glossop had violated Tri's policies concerning physical interaction between employees. Id. ¶ 49. Davis also reported Glossop's actions to the Terre Haute police, but told Heavin that she would drop the matter if Tri would promise her that she would not have to work under Glossop's supervision. Heavin put in his report that "In speaking with Davis, she requested that the matter be dropped and that no action be taken." Id. ¶ 50. Tri did not promise Davis that she would not have to work under Glossop's supervision. Id. ¶ 51. Heavin placed a copy of his investigation in Glossop's file, but did not discipline him in any other way. Id. ¶ 52; Heavin Dep. at 35. Heavin allowed Glossop to read the memorandum of his investigation and to sign the document, but did not give a copy to Davis. Stmt. of Material Facts ¶ 62. Glossop apologized to Davis and told her that he was going through a really rough divorce and was under a lot of stress. Davis Dep. at 231.
Shortly after the Glossop incident, Davis applied for and received short-term disability leave and benefits. Id. ¶ 55. Davis also sought psychiatric assistance for help with her stress. Id. ¶ 56. Tri did not dispute Davis' application for short-term disability benefits. Id. ¶ 57. When Davis returned from short-term disability leave, she discovered that Glossop had not been terminated or disciplined in any way as a result of his actions. Id. ¶ 62. The altercation between Davis and Glossop and the fact that Davis had reported Glossop was common knowledge among Tri employees. Id. ¶ 63.
2. Complaints About Bill Canary
In February 1999, Canary became Davis' supervisor. Id. ¶ 6. Davis worked on one machine, the H-25, that was in Canary's area of supervision. Id. ¶ 7. Davis claims that on four or five occasions Canary picked up the intercom in response to her page and said "Yes. I still love ya." Davis Dep. at 94; 96. Canary never followed up those words by asking Davis to do anything with him. Id. at 97. Davis and another employee, Kathy Newlin, went to McClain to talk to him about Canary's behavior. They did not want to make an issue of it, however, and told McClain they would rather talk to Canary themselves. McClain told them that if they wanted him to take it up with management, he would do so. Id. at 100. After Davis brought her complaints to Canary's attention, he apologized and the comments stopped. Id. at 100, 103.
McClain did not report Davis' or Newlin's complaints against Canary to Tri's Human Resources Department. Stmt. of Material Facts ¶ 87. Employees can report sexual harassment to supervisors or to the Human Resources Department, and supervisors are to take such complaints to the Human Resources Department. Id. ¶ 88.
Canary also once told Davis that she should walk in front of him so that he could watch her walk for a while. Id. at 94-95. In addition, Davis felt that every time she talked to Canary he would stare at her chest. Id. at 98. When she confronted him about it, he said that he was not aware that he had been doing it. Id. at 98-99. Davis eventually complained to Heavin about Canary's staring at her chest. Heavin advised Canary of the sexual harassment policy and admonished him to be mindful of his future conduct. Def.'s Ex. 2. Heavin did not otherwise discipline Canary. Id. Heavin allowed Canary to provide him with a written statement, but did not take a written statement from Davis. Stmt. of Material Facts. ¶ 86. Heavin prepared a memorandum regarding Davis' complaints about Canary on May 7, 1999, after he received Davis' EEOC charge and after he had been contacted by Davis' attorney. Id. ¶ 89.
Tri's written sexual harassment policy in effect during Davis' employment stated "Sexual harassment will result in termination." Id. ¶ 64.
3. Complaints Against Co-Worker Jeff Liechty
Jeff Liechty is an hourly maintenance employee for Tri. Davis describes Liechty's character as follows: "He's a joker. He jokes around." Id. ¶ 15. Liechty was a friend of Glossop's. Id. ¶ 67. At some point Liechty told Davis he would like to rub his penis along her gums. He also once smacked her on the buttocks. Davis did not report either incident to management. Davis Dep. at 126-127. Davis also once claimed that Liechty was looking at her in the wrong way. Although she claims this happened after Heavin had reprimanded him, there is no evidence in the record to support the timing of this event. At any rate, Davis complained to a supervisor and the supervisor admonished Liechty not to look at Davis. McClain Dep. at 36-37.
Sometime after returning from disability leave, Davis was standing in a cramped area talking to other employees when Liechty came behind her and rubbed his groin across her buttocks as he squeezed between Davis and another machine or post. Davis Dep. at 128; 246. Davis complained to Heavin and he investigated the situation. Id. at 128. Heavin advised Liechty of the company's sexual harassment policy and told him to avoid contact with Davis. Def.'s Ex. 2. Heavin allowed Liechty to provide him with a written statement, but did not take a statement from Davis. Stmt. of Material Facts. ¶ 69. According to Davis, had Heavin investigated he would have discovered that another employee, Charlie Martin, said after seeing the event that "Dennis Glossop isn't the only one who likes to grab you." Id. ¶ 70. Liechty never did anything else to Davis. Davis Dep. at 129; 247.
4. Complaints Against Co-Workers Tom Smith And Shannon Budd
Tom Smith and Shannon Budd are hourly employees with Tri. Stmt. of Material Facts ¶ 16. Smith once told Davis that he had been having dreams of her with him in a threesome. Id. ¶ 73. After Davis complained to Canary, Smith never made the comments again. Davis Dep. at 249.
Smith and Budd also showed Davis lesbian pornography and a photograph of a penis within a vagina. Stmt. of Material Facts ¶ 74. These incidents occurred after Davis had returned from short-term disability leave. Id. ¶ 75. Davis reported these incidents to Heavin. Id. ¶ 76. Heavin reported in a May 5, 1999 memorandum that both Smith and Budd denied the accusations. Although Heavin did not formally discipline them, he did advise them of the company's sexual harassment policy and that if he discovered additional evidence that they possessed such material, they would be subject to discipline. Def.'s Ex. 2. They never showed Davis such material again after her complaint. Davis Dep. at 131.
5. Davis Leaves Tri
Davis' husband Richard also worked at Tri during her tenure. Stmt. of Material Facts ¶ 96. Tri supervisor Bob Abernathy once told Richard that Davis had better watch her back. Id. ¶ 94. Davis has not provided any additional information explaining what Abernathy meant by this comment. Believing that Tri did not take any action in response to her earlier complaints, Davis thought that additional complaints to Tri management about additional problems would be futile. Id. ¶ 95. After Heavin's May 7, 1999 memorandum and before Davis quit her employment at Tri, her husband quit working there in disgust. Id. On June 3, 1999, Davis served written notice on Tri that she believed she had been constructively discharged as a result of Tri's refusal to discipline her sexual harassers and/or its refusal to remedy her hostile work environment. Id. ¶ 125.
B. DAVIS' DISPARATE TREATMENT CLAIM
Davis claims that Tri treated her differently than her male counterparts with respect to the scheduling and assignment of overtime. Specifically, she claims that Tri once did not allow her to reschedule mandatory overtime work while it allowed male employees to do so. Id. ¶ 123. She also claims that when she wanted overtime work, Tri instead assigned it to a less senior employee, Rick Crowder. Id. ¶ 124. Finally, Davis claims when another male employee complained of harassment, Tri terminated the alleged harasser. Because Tri did not terminate Glossop, Tri allegedly discriminated against Davis because of her sex.
C. DAVIS' CLAIM UNDER THE EQUAL PAY ACT
CNC Machinists are divided into three categories: A, B, and C. Id. ¶ 20. Within each classification, there are subgroups. For example, category C is broken down into C-1, C-2, and C-3. Id. ¶ 21. While Tri contends the skill levels and job requirements differ among the different categories, Davis disputes that assertion. Newlin Aff. ¶ 20. According to Davis, all machinists perform the same jobs and have the same responsibilities regardless of their classifications.
Davis began working for Tri in May 1998 as a C-1 CNC Machinist at the rate of $7.50 per hour. Stmt. of Material Facts ¶ 22. Tri claims that from January 1, 1997 to June 30, 1998 it hired 12 C-1 CNC Machinists, starting them at hourly rates ranging from $7.00 to $9.00 per hour. Def.'s Ex. 4. Davis claims that all persons on the list, regardless of their category, performed the same work under the same conditions. For example, while Tri hired Rick Crowder as a B-1 CNC Machinist, his entry level position was the same as Davis'. Wilkinson Dep. at 146. It is possible that Crowder and Davis, despite being in different categories, were working on the same machine and doing the exact same job. Id. at 146. The starting wages for all CNC Machinists Tri hired during the relevant time period ranged from $7.00 per hour to $12.65 per hour. Def.'s Ex. 4.
Davis received a 19.7% salary increase in her 13 months of employment with Tri. Stmt. of Material Facts ¶ 25. By the time she left the company, she was making $8.98 per hour. Id. ¶ 26. Davis received the third-highest increase of all employees classified as C-1 CNC Machinists. Id. ¶ 27.
The CNC Machinist positions at Tri are different than the average factory job, which might be learned in a week or two. Id. ¶ 30. The skill level and proficiency of a CNC Machinist is one which is gained over time. Id. ¶ 31. Tri looks for skill and experience in the hiring of CNC Machinists. Id. ¶ 32. The hiring of CNC Machinists during the time frame relevant to Davis' complaint occurred through the filing of a job application and an interview with Heavin; Terry Wilkinson, Product Unit Leader; and generally a shift supervisor. Id. ¶ 33. In determining whether to hire an applicant as a CNC Machinist, Tri considered the applicant's educational background, years of experience in a like field, and technical training. Id. ¶ 34. Tri considered those same factors in determining the applicant's starting salary. Id. ¶ 35.
Wilkinson was directly involved in hiring Davis. Id. ¶ 38. Wilkinson noted that Davis had received her G.E.D., had a QS-9000 certification, and had worked at Brico Metals from January 1996 to July 1997. Id. ¶ 39. While at Brico, Davis held three positions: small machine operator, CPC attendant (the keeping of production statistics), and shipping clerk. Id. ¶ 41. Wilkinson determined that Davis had approximately three to six months of work experience that was directly relevant to the CNC Machinist position. Id. ¶ 42.
Davis began complaining to Tri management officials regarding sex discrimination in the form of unequal pay during 1998. Tri apparently did not investigate any of those complaints. Id. ¶ 103. All Tri management personnel that participated in the hiring, the establishment of the rates of pay, and the classification practices were male. Id. ¶ 104. Tri had no written uniform guidelines that it used with respect to hiring, pay rate, and classification decisions ( i.e., a point system, uniform pay schedule for extra pay based upon certain extra experience or education, etc.). Id. ¶ 105. Prior to June 30, 1999, the only written description of a machinist position was on the employee evaluation forms. Tri Dep. at 9. According to Newlin, although she was classified as a C-level machinist, she had the same job duties, responsibilities, and worked in the exact same conditions as any other CNC machinist, regardless of their classification. Newlin Aff. ¶ 20.
Tri did not base its pay rates on seniority. Stmt. of Material Facts ¶ 109. Tri did not have a uniform rate of pay for employees who were "in training" to operate CNC metal machines. Pl.'s Id. ¶ 112. Tri did not use any testing procedures to determine how well a new employee, after training, could operate a CNC machine in setting that employee's rate of pay. Id. ¶ 113.
According to Davis' expert witness, Dr. Robert Guell, his statistical study revealed that male C-1 CNC Machinists made on average more the $.50 more per hour than the females in the same positions. Pl.'s Ex. 11. According to Davis, she was making less than similarly situated male co-workers who were performing the exact same work in the exact same department. Pl.'s Ex. 15.
Davis' job required her to "set up" her machine at work. Pl.'s Ex. 2. According to Davis, Tri hired Crowder to run the same machine she was operating, but paid him more than five dollars more per hour as a starting salary. Davis Dep. at 238. As entry-level employees, Crowder and Davis had the same duties and responsibilities. Id. at 238; Wilkinson Dep. at 146.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has recently emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. TITLE VII STANDARDS 1. Disparate Treatment
Davis can establish that Tri discriminated against her through direct or indirect means. Evidence that in and of itself suggests that the person with the power to hire, fire, promote, and demote an employee was animated by an illegal employment criterion amounts to direct proof of discrimination. Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997). Evidence of discriminatory motives must have some relationship to the employment action in question; inappropriate but isolated comments that amount to no more than stray remarks are insufficient. Id. at 973. Remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based upon illegal criteria, however, will suffice as direct evidence of discrimination even if the evidence stops short of a virtual admission of illegality. Id. Proof of this nature supports the inference that a statutorily proscribed characteristic was at least a motivating factor in the adverse employment action at issue. Id. When such evidence is presented, it shifts the burden to the employer to demonstrate that it would have taken the same action even if the proscribed criterion had played no role in the decision. Id. The persuasiveness of that showing will normally be for the trier of fact to assess, unless the Court can say without reservation that a reasonable finder of fact would be compelled to credit the employer's case on this point. Id.
Davis may also utilize the burden-shifting mechanism outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the indirect method of proof, Davis must initially set forth, by a preponderance of the evidence, a prima facie case of sex discrimination. Id.; Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999). If Davis makes a showing sufficient to prove a prima facie case she will enjoy a rebuttable presumption of discrimination that shifts the burden of production to Tri to articulate a "legitimate, nondiscriminatory reason" for its actions. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). The City may do so by producing evidence, whether or not persuasive, of a nondiscriminatory reason. Hicks, 113 S.Ct. at 2747 (noting that the plaintiff retains the ultimate burden of persuasion on the issue of intentional discrimination). If Tri succeeds in this task, the presumption dissolves and the burden of production shifts back to Davis to demonstrate that the proffered reason for the adverse employment action is a pretext for discrimination. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1309 (7th Cir. 1997).
To establish a prima facie case of sex discrimination under the indirect method of proof, Davis must show that: (1) she was a member of a protected class; (2) she was meeting Tri's legitimate performance expectations; (3) she suffered an adverse employment action; and (4) Tri treated similarly situated persons not in the protected class more favorably. Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 875 (7th Cir. 1999).
2. Hostile Work Environment
It is well settled that a plaintiff may establish a violation of Title VII by proving that discrimination based upon sex has created a hostile or abusive work environment. Fall v. Indiana University Board of Trustees, 12 F. Supp.2d 870, 876 (N.D.Ind. 1998), citing Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1143 (7th Cir. 1997). Title VII is not a general civility code, see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), and is not "designed to purge the workplace of vulgarity." Baskerville v. Culligan Int'l. Corp., 50 F.3d 428, 430 (7th Cir. 1995). To be actionable under Title VII, the harassment must be based upon a protected characteristic, such as gender, see Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998), and must be "sufficiently severe or pervasive to `alter the conditions of [the victim's] employment and create an abusive working environment.'" Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000), quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Whether the harassment is sufficiently severe or pervasive depends on all 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.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 23-24 (1993).
Simple teasing, offhand comments, and isolated incidents — unless extremely serious — do not establish actionable sexual harassment. Faragher, 524 U.S. at 788. The alleged harassment must be both objectively and subjectively offensive. That is, a reasonable person must find the environment hostile or abusive and the plaintiff must actually perceive it as offensive. Garton v. Thomson Consumer Electronics, Inc., 2000 WL 1617753, *7 (S.D.Ind. October 25, 2000). When determining whether a hostile environment exists, the Court must consider the totality of the circumstances. Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966, 977 (S.D.Ind. 1999). However, "relatively isolated instances of nonsevere misconduct will not support a claim of hostile work environment." Silk v. City of Chicago, 176 F.3d 390, 398 (7th Cir. 1999).
Davis' hostile work environment claim is based upon the alleged harassment of her supervisors and co-workers. All instances of harassment by all parties are relevant to determining whether the work environment was sufficiently severe or pervasive to amount to a hostile work environment. Mason v. Southern Illinois Univ. at Carbondale, 2000 WL 1779187, *6 (7th Cir. December 5, 2000). The Court "should not carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive." Id.
C. EQUAL PAY ACT
The Equal Pay Act forbids paying workers of one sex less than workers of the opposite sex for equal work that requires equal skill, effort, and responsibility and which is performed under similar working conditions, except where the differential is due to a seniority system, a merit system, a system which measures quantity or quality of production, or a factor other than sex. Wollenburg v. Comtech Manuf. Co., 201 F.3d 973, 975 (7th Cir. 2000), citing 29 U.S.C. § 206(d)(1). To establish a prima facie case under the Equal Pay Act, Davis must show (1) that different wages were paid to employees of the opposite sex, (2) that the employees do equal work which requires equal skill, effort, and responsibility, and (3) that the employees have similar working conditions. Id. Once Davis makes a prima facie case, Tri bears the burden of persuasion of showing that the pay disparity is due to a seniority system, a merit system, a system which measures earnings by quality or quantity of production, or a differential based on any other factor besides sex. Wollenburg, 201 F.3d at 976. See also, Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994). Even if a man and a woman are doing the same work for different pay, there is no violation if the wage difference stems from a factor other than gender. Wollenburg, 201 F.3d at 976, citing Lindale v. Tokheim Corp., 145 F.3d 953, 957 (7th Cir. 1998). With these standards in mind, the Court will now turn to the parties' arguments.
III. DISCUSSION A. TITLE VII HOSTILE WORK ENVIRONMENT
Davis claims that her supervisors and co-workers sexually harassed her and created a hostile work environment. Davis devotes a substantial portion of her brief attacking Tri's investigation of her complaints and alleged lack of remedial action. Before addressing whether Tri can be liable for a hostile work environment, however, the Court must first determine whether such an environment actually existed.
As previously noted, to violate Title VII the alleged harassment must have been based upon Davis' sex or another protected characteristic. Oncale, 523 U.S. at 80. The parties first dispute whether the Court should even consider the altercation with Glossop in its analysis. Tri argues that it should not, because Glossop did not act as he did "because of" Davis' sex. Instead, his actions were the result of a disagreement over Davis' production of nonconforming parts. Tri's argument is well taken, as Davis' own testimony supports this conclusion. After Davis had difficulty with a machine that was producing nonconforming parts, her supervisor (Canary) escorted her to Glossop's office to discuss the matter with him. After Davis told him the problem, Glossop said "Let's just take a look at it and see what's happening," and winked at Davis. Davis Dep. at 221. After Davis continued to explain what she thought the problem was, Glossop again winked at her and told her she should not have run the part. Davis Dep. at 222. In response, Davis said "That's fine. You do what you want to do. Write me up. You guys figure it out, I'm going to go back out to the shop," and proceeded toward the door. Davis Dep. at 222. At that point, Glossop grabbed her arm, put his hand against the top of the door, held the door shut, told her she was not going anywhere, and that she was going to sit down and listen to him. Davis Dep. at 222; 225-226. According to Davis, Glossop was angry and she felt intimidated. Davis Dep. at 254-255. After Davis left the room, Glossop followed her out and told her to get back in the office. Id. at 226-227. Davis told him "You better never fucking touch me again." Davis Dep. at 227. Glossop said, "I didn't hurt you." Davis Dep. at 227.
Despite her testimony, Davis argues that a reasonable jury could conclude that Glossop's conduct was based upon her sex because he winked at her and because he was going through a divorce at the time. See Pl.'s Response Brief at p. 18 ("the jury could believe from the facts that Glossop acted aggressively because he had hostility toward women stemming from his divorce."). The Court disagrees. There is no evidence that Glossop acted as he did because of Davis' sex. Instead, the evidence shows that Glossop was upset and angry with Davis because of her production of a nonconforming part. While Glossop's conduct of grabbing Davis may not be commendable, there is no evidence that he acted as he did because of Davis' sex. Accordingly, the Court will not consider this incident with respect to Davis' hostile environment claim. See Spearman v. Ford Motor Co., 2000 WL 1646288 (7th Cir. November 3, 2000) ("Sexually explicit insults that arise solely from altercations over work-related issues, while certainly unpleasant, do not violate Title VII. Because Spearman was not harassed because of his sex, his hostile environment claim fails.").
The Court must now consider the remaining allegations of sexual harassment. Davis claims the following incidents created a hostile work environment:
(1) On four or five occasions, supervisor Canary picked up the intercom in response to Davis' page and said "Yes. I still love ya." Davis admits that she is uncertain what he meant by this. Davis Dep. at 97. When she confronted him about it, he apologized and the comments stopped. Davis Dep. at 100.
(2) Canary once told Davis that she should walk in front of him so that he could watch her walk for a while. Davis complained to Tri about this comment. Davis Dep. at 101. There is no evidence that Canary made any similar comments after Davis' complaint.
(3) Davis felt that every time she talked to Canary during his first month as her supervisor he would stare at her chest. Davis Dep. at 95. When she confronted him about it, he told her he did not realize he had been doing it. Davis Dep. at 99. Davis also complained to Tri, and there is no evidence that Canary continued to stare at her chest after her complaint. Davis Dep. at 101.
(4) In October 1998, co-worker Jeff Liechty told Davis he would like to rub his penis along her gums. Davis Dep. at 125-126. Davis, who described Liechty as a "joker," did not complain to Tri about this comment. Davis Dep. at 126-127. Instead, she told him that he "was a sick fucker." Davis Dep. at 126.
(5) In January 1999, Liechty smacked Davis on the buttocks as she turned to leave from a conversation. Davis Dep. at 127. Again, Davis did not complain to Tri about this behavior. Instead, she pointed her finger at Liechty and told him if he ever touched her again "that [she] was going to have her husband kick his ass." Davis Dep. at 127. Liechty apologized and told her that he was just joking around. Davis Dep. at 127.
(6) Liechty once looked at Davis in the wrong way;
(7) One day Davis was standing in a cramped area talking to other employees. Liechty, instead of walking around the crowd, went behind Davis. In so doing, he rubbed his groin across her butt while she was standing at her machine. Davis Dep. at 128. There is no evidence of any other such conduct by Liechty after Davis complained to Tri.
(8) Another co-worker, Tom Smith, once told Davis that he had been having dreams of her with him in a threesome with him and his wife. Davis Dep. at 129. Davis turned and walked away. After she mentioned the comment to Canary, there were no further comments by Smith.
(9) Finally, Smith and co-worker Shannon Budd also once showed Davis lesbian pornography and a photograph of a penis within a vagina. Again, after Davis complained to Tri she had no further problems with Smith or Budd. Davis Dep. at 130-131.
While there is no bright line distinguishing "the merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other," see Baskerville, 50 F.3d at 430-431, the Court finds that Davis' allegations are simply insufficient to establish a hostile work environment. Even assuming that she subjectively found her work environment abusive, her claim fails because the objective prong of the inquiry is not satisfied. Indeed, while much of the alleged conduct may have been inappropriate, it was not so severe or pervasive that it rose to the level of a hostile work environment. Most of the harassment was in the form of inappropriate isolated comments, pictures, or stares that simply did not create an abusive environment.
The two most egregious acts — the physical touching by Liechty — were isolated incidents. The Seventh Circuit recently explained that physical harassment, like verbal harassment, lies along a continuum:
There are some forms of physical contact which, although unwelcome and uncomfortable for the person touched, are relatively minor. Cumulatively or in conjunction with other harassment, such acts might become sufficiently pervasive to support a hostile environment claim, but if few and far between they typically will not be severe enough to be actionable in and of themselves. A hand on the shoulder, a brief hug, or a peck on the cheek lie at this end of the spectrum. Even more intimate or more crude physical acts — a hand on the thigh, a kiss on the lips, a pinch of the buttocks — may be considered insufficiently abusive to be described as `severe' when they occur in isolation.Hostetler, 218 F.3d at 808. The acts of physical harassment Davis has alleged stand in sharp contrast to the acts in Hostetler, where the Seventh Circuit found a question of fact existed regarding whether the plaintiff's working environment was hostile. In Hostetler, the plaintiff's co-employee grabbed her face and stuck his tounge down her throat; tried to kiss her again the following day; and began to unfasten her brassiere, threatening to "undo it all the way." Hostetler, 218 F.3d at 801. Based upon these facts, the Seventh Circuit found it to be a difficult question whether such acts, due the limited number of occurrences, were sufficiently serious that a finder of fact could find the environment hostile. Id. at 808.
Davis relies upon Fall, 12 F. Supp.2d at 870, as an example of physical harassment that amounted to a hostile work environment. Fall is easily distinguishable from Davis' situation, however, as the physical contact in that case was much more severe and abusive. In Fall, the plaintiff's supervisor, in his office with the door closed, forcibly grabbed and kissed the plaintiff while forcing his hands inside her blouse to grope her breasts. Id. at 879. In contrast, Davis has alleged only that another co-employee once smacked her on the buttocks and brushed against her as he walked behind her.
Davis' allegations of physical harassment pale in comparison to those in Hostetler. First, Liecthy allegedly rubbed his groin across Davis' buttocks in an open area and in front of several other employees. This was a one-time incident, and after Davis complained she had no further problems with Liechty. The other physical contact occurred when Liechty smacked Davis on the buttocks as she left a conversation with him. This event — which Davis did not even report to Tri management — was also a one-time occurrence. Even when viewed in light of the other allegations of verbal harassment, the Court finds that the alleged physical harassment by Liechty was insufficiently abusive to be considered severe. Indeed, the Seventh Circuit has found no hostile environment existed in factual scenarios that were seemingly more egregious than the instant case. See, e.g., Saxton v. American Telegraph Co., 10 F.3d 526, 534-535 (7th Cir. 1993) (no hostile environment where supervisor placed his hand on plaintiff's leg above the knee several times, rubbed his hand along her upper thigh once, pulled her into a doorway and kissed her for two to three seconds, and lurched at her as if to grab her), citing Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (no hostile environment where male co-worker asked plaintiff out on dates, placed his hand on her shoulders several times, attempted to kiss her, called her a dumb blonde, and left a sign stating "I love you" on her desk). Because there is no evidence of an objectively hostile or abusive work environment, the Court need not address Davis' arguments that Tri failed to properly remedy such an environment. Accordingly, the Court GRANTS Tri's motion for summary judgment on Davis' hostile work environment claim.
B. TITLE VII DISPARATE TREATMENT
Davis has alleged three bases for her claim that she was discriminated against because of her sex: (1) she was paid less than similarly situated males; (2) Tri failed to discipline Glossop, while it had previously terminated another employee that had allegedly harassed a male employee; and (3) Tri discriminated against her with respect to the scheduling and assignment of overtime. Tri did not move for summary judgment on Davis' Title VII claim regarding unequal pay, so the Court will not address that issue.
Davis' second claim is that Tri somehow discriminated against her by failing to discipline Glossop after she complained of his harassment. According to Davis, when Pat Dunham (a male) had previously complained of harassment by his supervisor, Jim Harmless, Tri fired Harmless. Because Tri failed to terminate Glossop, Davis argues, it treated her less favorably than it did Dunham. Davis provides the following testimony from McClain regarding Tri's termination of Harmless:
Q: Do you remember why he [Harmless] got terminated?
A: There again, it's hearsay. I heard that he had kept an employee from leaving the office.
McClain Dep. at 28-29. This is inadmissible hearsay, and the Court will not consider it in ruling upon this motion. Davis also cites to testimony from Wilkinson, but did not provide the Court with a transcript of the alleged testimony. Finally, without pointing to any particular document, Davis cites to Harmless' personnel file as support for her claim. After reviewing Harmless' file, it is apparent to the Court that he was not similarly situated to Glossop. Indeed, one document notes that "Jim was advised that his history of employee confrontations which he had been warned about, made termination the only recourse in the matter. It was not a one time incident." Pl.'s Ex. 17. Apparently, Harmless had a history of confrontations with employees. There is no evidence in the record that Glossop had a similar history. It would thus be logical for Tri to discipline them differently. Accordingly, the Court GRANTS Tri's motion for summary judgment on that claim.
Davis' last claim for disparate treatment involves that allegedly unfair scheduling and assignment of overtime. Specifically, Davis claims that one weekend she asked to reschedule her overtime, and Tri denied her request while allowing other males to reschedule their overtime. Davis' own testimony, however, dooms this claim. Indeed, Davis explained the reason Tri denied her request as follows:
A: The weekend that I wanted off was February 13th. . . . I was the only machinist in Unit 1 there that Saturday. Everybody else was allowed to have the night off that was scheduled or whatever.
Q: And you say that was because of what?
WITNESS: Because of what?
Q: Because you had made complaints?
A: Yes.
Davis Dep. at 144. According to Davis, Tri's motive for denying her request may have been retaliatory, but it was not because of her sex. Davis has not asserted a claim for retaliation, but only for sex discrimination. Accordingly, the Court GRANTS Tri's motion for summary judgment with respect to that claim.
Davis also claims that Tri allowed a less senior employee, Rick Crowder, to work overtime that she should have worked. Davis has not fully developed this argument in her brief, and the Court is not clear as to her exact contention. It appears that Davis once worked day shift overtime on the weekends, but when Tri hired Crowder it assigned him that work and scheduled Davis for overtime during the week. Davis did not want to work overtime during the week because it would have required her to work part of her shift with Glossop. Tri President Tim Haller distributed a memorandum to Tri employees explaining that employees were to work mandatory overtime on their own shifts. Because Crowder worked on day shift during the week, Tri assigned him to the same shift for weekend overtime purposes. Even assuming that Davis suffered an adverse employment action by not being allowed to work the overtime shifts she desired, it appears that Tri has provided a legitimate nondiscriminatory reason for its actions. Davis believes this reason is false because "(1) Tri permitted employees to flexibly reschedule their overtime and (2) Tri's refused to agree that Davis would not have to work under Glossop's supervision if she worked overtime. Davis would only have had to work under Glossop's supervision if she worked overtime." This does nothing to dispute Tri's reason for its action, nor does it show that its reasons were pretextual. See Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000) (to show pretext, plaintiff must demonstrate that employer's proffered reason is a lie or completely lacks a factual basis). Accordingly, the Court GRANTS Tri's motion for summary judgment on that claim.
In sum, Tri is entitled to summary judgment on Davis disparate treatment claims with respect to the failure to properly discipline Glossop and the scheduling/assignment of overtime. Tri did not move for summary judgment on Davis' claim for unequal pay, so that claim survives.
C. EQUAL PAY ACT CLAIMS
Davis claims that Tri paid females less than males for equal work. Tri had an established pay range for individuals that it classified as entry level C-1 CNC Machinists, which ranged from $7.00 to $9.00 per hour. According to Tri, applicants could get more than the $7.00 floor rate depending on their education, work experience, and technical skills. To establish her claim under the Equal Pay Act, Davis must first show that (1) Tri paid different wages to employees of the opposite sex; (2) that the employees did equal work which requires equal skill, effort, and responsibility; and (3) that the employees had similar working conditions. Dey, 28 F.3d at 1461. There is no question that Tri paid different wages to males and females, and the company does not dispute that CNC machinists in general worked under similar working conditions. With respect to the second element, the parties disagree whether the CNC machinists in different categories actually had the same job duties and/or responsibilities. For example, Davis has submitted an affidavit from Kathy Newlin stating that although she was classified as a "C" machinist, she performed the same job duties as any other machinist in any category. Tri disputes this, and claims that those machinists in "B" or "A" categories had more experience, responsibilities, and duties than those in category "C." The parties appear to at least agree that all machinists within the C-1 category had the same job duties that required equal skill, effort, and responsibility. Moreover, Tri does not dispute that Davis can establish a prima facie case. Instead, it simply attempts to justify the reasons for the disparity. As a result, the Court will consider its affirmative defense.
Because Tri concedes that Davis has established a prima facie case, it then has the burden of showing that the pay disparity is due to (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based upon any other factor other than sex. Wollenburg, 201 F.3d at 976. Tri asserts that it bases its compensation decisions upon an applicant's educational background, prior work experience, and technical training. These factors need not be related to the requirements of the particular position in question, nor must they be business-related. E.E.O.C. v. Grinnell Corp., 881 F. Supp. 406, 411 (S.D.Ind. 1995). Instead, the Court asks "only whether the factor is bona fide, whether it has been discriminatorily applied, and in some circumstances, whether it may have a discriminatory effect." Id.
Davis points to several examples where she believes that Tri applied these factors in a discriminatory fashion. For example, Davis complains that Tri hired Crowder to do the same job that she had performed, yet paid him $12.50 per hour. Crowder, however, had over eight years of experience as a CNC machinist at prior employers. While Tri may have hired him to perform the same job as Davis, his significant prior experience is a legitimate reason to pay him a higher starting salary. See Lindale, 145 F.3d at 957 ("Even if a man and a woman are doing the same work for different pay, if the wage difference is due to a factor unrelated to gender, there is no violation.").
Tri actually hired Crowder as a B-1 CNC Machinist. The Court recognizes that Tri claims machinists in "B" categories are not similarly situated to the C-1 machinists because they had different job duties. According to Newlin, however, all machinists — regardless of how Tri categorized them — performed the exact same job duties, had the same responsibilities, and worked under the same conditions. Newlin Aff. ¶ 20. Viewing the facts in the light most favorable to Davis, the Court will accept Newlin's assertion.
The Court finds more persuasive Davis' comparison of two former Brico Metal employees. William Asher worked at Brico for almost two and one-half years, had a G.E.D, but had no other training or certifications. Tri hired Asher as a C-1, CNC Machinist at $9.00 per hour. In contrast, Tri also hired Kathy Newlin as a C-1, CNC Machinist at $9.00 per hour. Newlin also had her G.E.D., but unlike Asher she also had graduated in 1994 from a CNC Lathe Training course. Significantly, she had been a Production Supervisor (which presumably included supervision of employees operating CNC machinery) for over five years at Brico before joining Tri. Despite Newlin's seemingly superior training and work experience, Tri hired her at the same rate as Asher. While the two made the same amount of money, it appears that Tri awarded Asher for his prior experience while Newlin did not receive the same benefit.
Other examples are also instructive. Tri hired Ernie Thompson at $9.00 per hour, which is the same that it paid Newlin. Thompson had three years of college in an unspecified area of study, five weeks of classes at Ivy Tech, and was certified to operate CNC machinery. In contrast to Newlin's five years of supervisory experience in metal machining, Thompson had worked just five months at Morris Manufacturing in positions that he described as "Junior Maintenance, Machine Operator." Pl.'s Ex. 21. Tri does not explain why it hired Thompson and Newlin at the same rate when Newlin clearly had superior experience. Similarly, Tri hired William Bryant as a B-1 CNC Machinist at $12.00 per hour. Like Newlin, Bryant had various certifications in CNC programming, but had been a supervisor for only three years and eight months at Morris Manufacturing. Pl.'s Ex. 43. Tri offers no explanation for why it paid Bryant $3.00 per hour more than it paid Newlin, who had a similar educational background and more supervisory experience. Finally, Tri hired Chad Kittle as a B-1 CNC Machinist at $11.00 per hour. Kittle had attended Ivy Tech, was certified to operate CNC machinery, and was a supervisor at Morris Manufacturing for four and one-half years. Pl.'s Ex. 31. Again, Tri offers no explanation why it paid him $2.00 more per hour than it paid Newlin, who had more supervisory experience.
Tri cites Lindale for the proposition that it is not necessarily a violation of the Equal Pay Act for an employer to pay one sex more than the other for equal work, assuming the reason for the disparity is not the employees' sex. This is certainly an accurate statement of the law, and if the pay disparities at Tri were due solely to employees' work experience, education, and training there would be no issue under the Equal Pay Act. In Lindale, for example, the Seventh Circuit found that there was no evidence that had the plaintiff been a male, she would have received higher pay. Lindale, 145 F.3d at 958. In contrast, while differences in prior experience, education, and training may explain some of the pay disparities that existed between male and female CNC machinists at Tri, they cannot explain all of them. Although Tri apparently later gave Newlin higher raises than her male counterparts, that does not explain the discrepancy in her starting pay. And — as Tri candidly admits — employees' salaries are inevitably tied to their starting salary. Tri Brief at p. 30. This discrepancy in Newlin's starting salary at least creates a genuine issue of material fact as to whether Tri applied its seemingly sex-neutral factors in a discriminatory fashion. Tri may ultimately be able to prove that it did not, and that it paid females in a manner equal to their male counterparts. Based upon this record, however, that is for a jury to decide. Accordingly, the Court DENIES Tri's motion on Davis' claim under the Equal Pay Act.
D. INDIANA COMMON LAW CLAIMS
Davis has alleged claims under Indiana common law for battery, negligence, and intentional infliction of emotional distress stemming from her confrontation with Glossop. Davis has not sued Glossop individually, but instead seeks to hold Tri liable for these intentional torts. Tri did not move for summary judgment on the negligence claim, so the Court will not consider that issue. Tri asserts that Davis' other claims are barred by the exclusive remedy provision of the Indiana Worker's Compensation Act. See Indiana Code § 22-3-2-6. The Act excludes all rights and remedies of an employee against her employer for personal injuries where those injuries are: (1) by accident; (2) arising out of employment; and (3) arising in the course of employment. Van Jelgerhuis v. Mercury Finance Co., 940 F. Supp. 1344, 1366 (S.D.Ind. 1996). To the extent she seeks damages for only emotional distress, however, those claims would not be barred by the Act. See Tacket v. General Motors Corp., Delco Remy Div., 93 F.3d 332, 335 (7th Cir. 1996) (employee who alleged no physical injury and sought damages solely for emotional injuries was not injured, impaired, or disabled as defined by Indiana's Worker's Compensation Act, and thus his emotional distress claim was beyond exclusivity provisions of the Act); Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1288-1289 (Ind. 1994) (where injuries at heart of plaintiff's complaint were not physical, claims were not barred by Act); Nolen v. South Bend Transportation Corp., 99 F. Supp.2d 953, 965 (N.D.Ind. 2000) (Worker's Compensation Act would not strip court of subject matter jurisdiction to entertain an action for intentional infliction of emotional distress where the plaintiff does not seek damages for physical injuries). Although neither party discusses the issue in their briefs, it appears from Davis' complaint that her battery and intentional infliction of emotional distress claims seek damages for emotional injuries only. Accordingly, Tri's motion for summary judgment on the basis that Davis' claims are barred by the exclusive remedy provision of Indiana's Worker's Compensation Act is DENIED.
IV. CONCLUSION
Davis has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on her hostile environment or disparate treatment claims under Title VII. Accordingly, the Court GRANTS Tri's motion for summary judgment on those claims. The Court DENIES Tri's motion for summary judgment on Davis' claims under Indiana common law. Finally, the Court finds that Davis has submitted sufficient evidence to create a genuine issue of material fact on her claim under the Equal Pay Act, and therefore DENIES Tri's motion for summary judgment on that claim. Tri did not move for summary judgment on Davis' sex discrimination claim under Title VII with respect to the alleged unequal pay or on her negligence claims under Indiana law, so those claims also survive.
IT IS SO ORDERED.