MARCIA HARRIS, Plaintiff, v. FRANKLIN-WILLIAMSON HUMAN
SERVICES, INC., LABORERS' INTERNATIONAL UNION OF NORTH AMERICA,
SOUTHERN ILLINOIS LABORERS' DISTRICT COUNCIL, RANDALL J.
MAYHEW, Defendants.
CIVIL ACTION NO. 98-4290-DRH
97 F. Supp. 2d 892; 2000 U.S. Dist. LEXIS 7752; 46 Fed. R.
Serv. 3d (Callaghan) 1167
CORE TERMS: summary judgment, gender,
prima facie case, deposition, age discrimination, sexual harassment,
retaliation, sex discrimination, threatening, twenty-one, harassment, phone,
leave to file, sexual, sex, tortious interference, similarly situated, hostile,
younger, circulated, replaced, crime of violence, violence, grievance,
offensive, discovery, arrested, hostile work environment, direct evidence,
protected class
Civil
Procedure : Summary Judgment or Summary Adjudication : Burdens of Production
& Proof Civil
Procedure : Summary Judgment or Summary Adjudication : Summary Judgment
Standard
 |
Summary judgment is proper where the pleadings and
affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). The movant bears the burden of establishing the
absence of fact issues and entitlement to judgment as a matter of law. The
court must consider the entire record, drawing reasonable inferences and
resolving factual disputes in favor of the non-movant.
|
COUNSEL:
For MARCIA HARRIS, plaintiff: Charles M. Poplstein, Rodney A. Harrison, Thompson
Coburn, St. Louis, MO.
For FRANKLIN-WILLIAMSON HUMAN SERVICES
INC, [**2] defendant: Kevin J. Lorenz, Burton D. Garland, Jr.,
McMahon, Berger et al., St. Louis, MO.
For
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, SOUTHERN
ILLINOIS
LABORERS' DISTRICT COUNCIL, RANDALL J MAYHEW,
defendants: Michael W. O'Hara, Patrick J. O'Hara, Cavanagh & O'Hara,
Sangamon County, Springfield, IL.
JUDGES: DAVID R. HERNDON, United States District
Judge.
OPINIONBY: DAVID R.
HERNDON
OPINION:
[*896]
MEMORANDUM AND ORDER
HERNDON,
District Judge:
I. Introduction Pending before the
Court are Defendants' three motions for summary judgment and Defendants' three
motions for sanctions pursuant to
FEDERAL RULE OF CIVIL PROCEDURE
11 and
28
U.S.C. § 1927 against Marcia Harris and her attorneys (Docket Entry
Nos. 88, 98, 105, 62, 120, and 124, respectively). As to the motions for summary
judgment, Defendants maintain that they are entitled to summary judgment on all
counts of Harris' First Amended Complaint. Specifically, they maintain that
Harris has not established a prima facie case under any of the counts.
As to the sanctions, Defendants assert that Harris filed this lawsuit
for the sole purpose of harassing Defendants, causing undue delay, and
[**3] needlessly increasing the costs of litigation. Specifically,
they maintain that many of the allegations in her First Amended Complaint are
not supported by the evidence and that Harris and her attorneys knew that some
of the allegations were not supported by evidence when they filed the First
Amended Complaint. Harris objects to Defendants' request for sanctions arguing
that she and her attorneys have acted in good faith throughout the litigation.
Furthermore, Harris contends that Defendants' failure to recognize the
twenty-one day "safe harbor" rule contained in
Rule 11 merits
denial of their motions for sanctions. Having reviewed the pleadings and the
applicable case law, the Court rules as follows. [*897]
II. Procedural Background Initially, Marcia
Harris filed suit against Franklin-Williamson Human Services, Inc. ("FWHS"),
Laborers' International Union of North America ("LIUNA"),
Southern Illinois
Laborers' District Council ("SILDC"), and
Randall Mayhew ("Mayhew") on September 16, 1998 (Docket Entry No. 1).
Subsequently, Harris filed a five-count amended complaint against Defendants
(Docket Entry No. 3). The First Amended Complaint alleges: (a) sexual
discrimination [**4] pursuant to Title VII of the Civil Rights Act
of 1964,
42
U.S.C. § 200042
U.S.C. § 2000(e) et seq. (Count I); (b) sexual harassment
and retaliation pursuant to Title VII (Count II); (c) age discrimination
pursuant to the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621 29
U.S.C. § 621 et seq. ("ADEA") (Count III); (d) violations
of the Violence Against Women Act, 42
U.S.C. § 13981 42
U.S.C. § 13981 et seq. ("VAWA") (Count IV); and (e)
tortious interference of contract (Count V). Counts I, II and IV are against all
Defendants; Count III is against FWHS and Count V is against LIUNA, SILDC and
Mayhew.
On February 17, 1999, the Court heard oral argument on several
of Defendants' motions to dismiss and for summary judgment and took the matters
under advisement. In March of 1999, the Court denied FWHS' motion for partial
summary judgment; Mayhew, LIUNA and SILDC's motion to dismiss and/or summary
judgment; and FWHS' motion to dismiss, to strike or for more definite statement
(Docket Entry Nos. 40, 41 and 42, respectively).
The parties proceeded
with discovery and in April 1999, Harris' deposition was taken. In all, the
parties [**5] deposed nineteen people from May 1999 to June 1999.
After reviewing the depositions, Defendants Mayhew, LIUNA and SILDC
served Harris' attorneys with their Rule 11 sanctions
on May 25, 1999. In response to the sanctions, Harris filed a motion for leave
to file a second amended complaint on June 15, 1999 (Docket Entry No. 56). On
June 16, 1999, Mayhew, LIUNA and SILDC filed Rule 11 sanctions
with the Court (Docket Entry No. 62). Subsequently, Defendants moved for summary
judgment on all counts of the First Amended Complaint (Docket Entry Nos. 88, 98
and 105).
On August 16, 1999, the Court held a hearing on Harris' motion
for leave to file a second amended complaint. The Court orally denied the motion
for to leave file a second amended complaint finding:
I've seen a lot of cases where individuals, such as the
plaintiff in this case, come to me or the magistrates and complain about all
of the fishing expeditions that defense wants to take and how they want to go
into discovery, that they shouldn't be allowed, because the standard argument
is that the plaintiff's lawyer is not getting paid by the hour and the
defendant's lawyer is. But this case is extraordinarily [**6]
different because here we have the plaintiff coming in, an individual who says
they should have gone on a fishing expedition because they should have known
that I would have gone from specific allegations to general allegations and
try to open this thing up simply because I couldn't prove it against one guy.
I now want to see who else is out there and open this thing wide open, so they
should have contemplated that and given me and done the discovery in advance.
I think it's a disingenuous argument.
I think that it is clear in this
case that the defendants, the employer and the other defendants would be
extraordinarily prejudiced by the amendment of this complaint because they, at
the very least, would have to come in and ask for an extension of time for
discovery. If I didn't grant it, they would be stuck. If I granted it, they
would be delayed. The motion is simply denied.
(August
16, 1999 hearing on motion for leave to file second amended complaint, pages
44-45, lines 24-23).
Also during the August 16, 1999 hearing, the
Court orally granted FWHS leave to [*898] file Rule
11 sanctions and 28
U.S.C. § 1927 sanctions. On September 20, 1999, FWHS
[**7] moved for sanctions pursuant to both Rule 11
and 28
U.S.C. § 1927 (Docket Entry No. 120). Following suit, Mayhew, LIUNA
and SILDC also moved for sanctions pursuant to 28
U.S.C. § 1927 on September 27, 1999 (Docket Entry No. 124).
III. Facts
Harris began working for FWHS in
1978. In 1989, she was promoted to the position of Director of Rehabilitation
Services. In September of 1994, the employees of FWHS elected to become members
of SILDC. Mayhew was the Director of Organizing in charge of the union
organization and campaign at FWHS. Harris alleges that Mayhew committed numerous
offensive acts against her and that she made repeated complaints to FWHS during
her employment about Mayhew.
Specifically, Harris alleges that on
September 20, 1994, Mayhew assaulted, intimidated and harassed her while she was
working at the Rehabilitation Center and that after the September 20, 1994
incident, Mayhew threatened, assaulted, intimidated, sexually harassed and/or
stalked Harris on more than one occasion on the premises of FWHS' Rehabilitation
Center. Harris' complaint further alleges that on or about September 20, 1994,
Mayhew [**8] contacted Kenneth Bleyer, an attorney for FWHS, and
told Bleyer that he controlled the County Boards in Franklin and Williamson
Counties and that unless Harris was fired, Mayhew would make things difficult
for FWHS with respect to its position with the union, and after that Mayhew
threatened FWHS with adverse union actions, including strikes, if FWHS did not
discipline, discharge, demote or otherwise make things difficult for Harris.
She further asserts that agents and/or employees of Defendants,
including Mayhew, did the following: (1) assaulted, intimidated, stalked and
harassed her; (2) circulated a letter falsely implying that she had been tested
for herpes; (3) circulated a flyer depicting her as a witch; (4) circulated a
picture of a nude female with "call Marcia 618-996-3082" written on it; and (5)
circulated a document entitled "The Great American Bitch Award" which named
Harris as the recipient and stated the award was given to her for "being a
c t." Harris also claims that in January 1996, she informed
First Amended Complaint Markley, then acting administrator of FWHS, that Mayhew
made or caused to be made threatening comments to her and threatened to shoot
her. [**9] She claims that right after she and Markley talked,
Markley issued her two written reprimands regarding her handling of a union
grievance.
At the end of June 1997, Harris initiated contact with an
individual named Jimmy Fulks. n1 Harris had read news articles about Fulks'
problems with Defendants. Feeling that they had something in common, Harris and
Fulks developed a relationship. Eventually, Harris met with [*899]
Fulks and his partner, corporate counsel, Paul Schoen. Fulks is paying for
Harris' legal bills in connection with this suit. n2
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n1 Around 1989, Fulks began operating a business called Mariah Boat. At that
time, Mayhew attempted to organize the employees working for Fulks at Mariah.
Mayhew's organizing attempt was unsuccessful. This organization attempt caused
personal problems between Fulks and Mayhew. In April 1997, Mayhew began a drive
to organize another of Fulks' businesses, Chariot Marine Fabricators. Two weeks
after Mayhew started his organizing efforts, Fulks closed Chariot after he
caught Mayhew meeting with workers on a lunch break. The Union complained to the
NLRB which issued a complaint accusing Mariah of illegally closing the business
in part to "chill unionism at the Mariah facility." Thompson Coburn represented
Fulks and Mariah at the proceedings before the NLRB. Ultimately, the NLRB
determined that Fulks had illegally fired workers from Chariot. Subsequently,
Fulks and Mariah, by and through their attorneys, Thompson Coburn, filed a
lawsuit in the Southern District of Illinois against Mayhew and LIUNA for
violations of the RICO statute. The Honorable J. Phil Gilbert dismissed with
prejudice Fulks and Mariah's cause of action for failure to state a claim upon
which relief can be granted. See Mariah
Boat, Inc. v. Laborers Int'l Union of North America, 19 F. Supp. 2d 893
(S.D. Ill. 1998). [**10]
n2 Harris
testified that Jimmie Fulks is financing this litigation by advancing her fees
100%. (Harris deposition, page 215). Fulks testified that Paul Schoen is
co-counsel with Thompson Coburn on this case and that Schoen can make the
directions and make the calls that are necessary for the purpose of prosecuting
the lawsuit (Fulks deposition, page 14).
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Subsequently, in
July of 1997, FWHS transferred Harris from her position of Director of
Rehabilitation Services and assigned her to the position of Director of
Development and Marketing. At this time, Harris was 49 years old and replaced
(in the interim) by Karen Freitag, age 44. n3 Ultimately, the position was
filled by Robert G. Ford, age 44. Harris maintains that she was transferred from
her position as Director of Rehabilitation Services because of her sex, her age
and in retaliation. Harris alleges that this transfer was an adverse employment
action. She also alleges that her new office was infested with roaches.
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n3 The record reveals that Freitag was almost 45
years old at the time she replaced Harris in the interim.
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[**11]
IV. Summary Judgment
Summary judgment
is proper where the pleadings and affidavits, if any, "show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." FED. R. CIV. P. 56(c). The movant
bears the burden of establishing the absence of fact issues and entitlement to
judgment as a matter of law. Yorger
v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218 (7th Cir.
1984). n4 The Court must consider the entire record, drawing
reasonable inferences and resolving factual disputes in favor of the non-movant.
Tregenza
v. Great American Communications Co., 823 F. Supp. 1409, 1411 (N.D. Ill.
1993), aff'd, 12
F.3d 717 (7th Cir. 1993), cert. denied, 511
U.S. 1085, 114 S. Ct. 1837, 128 L. Ed. 2d 465 (1994).
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- -
n4 Accord Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588-89, 89 L.
Ed. 2d 538, 106 S. Ct. 1348 (1986); Jean
v. Dugan, 20 F.3d 255, 259 (7th Cir. 1994).
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[**12]
In
reviewing a summary judgment motion, the Court does not determine the truth of
asserted matters, but rather decides whether there is a genuine factual issue
for trial. Harms
v. Godinez, 829 F. Supp. 259, 261 (N.D. Ill. 1993). No issue
remains for trial "unless there is sufficient evidence favoring the non-moving
party for a jury to return a verdict for that party. If the evidence is merely
colorable, or is not sufficiently probative, summary judgment may be
granted...." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct.
2505 (1986). Accord Brownell
v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991).
In a
1995 case, the Seventh Circuit noted that this standard should be applied "with
added rigor" in employment discrimination cases, in which intent and credibility
are crucial issues. See, e.g., DeLuca
v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir. 1995) (quoting Robinson
v. PPG Industries, Inc., 23 F.3d 1159, 1162 (7th Cir. 1994) and Sarsha
v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993)).
DeLuca affirmed prior [**13] Seventh Circuit
pronouncements that in employment discrimination cases, which often involve
issues of motive and intent, summary judgment must be approached with caution. Huhn
v. Koehring Co., 718 F.2d 239, 242 (7th Cir. 1983)
Huhn relied on an earlier case which recognized that, although
summary judgment is improper in employment discrimination cases which involve
"weighing of conflicting indications of motive and intent, "where a plaintiff
has no evidence of discriminatory motive to "put on the scales for weighing,"
summary judgment is appropriate. Id.
V. Analysis
A. Count I - Sex Discrimination
Title VII makes
it unlawful for an employer to discriminate against an employee
[*900] because of the employee's race or sex. 42
U.S.C. § 2000e 42
U.S.C. § 2000e et seq. The plaintiff must prove that she
was a victim of intentional discrimination. St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 125 L. Ed. 2d 407, 113 S.
Ct. 2742 (1993). A plaintiff can satisfy her burden of proof in a
sex discrimination case in two ways: through direct evidence of discriminatory
intent or through indirect evidence demonstrated [**14] by the
burden-shifting method presented in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817
(1973). Pasqua
v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir.1996); Von
Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir.
1993). Here, Harris has not presented direct evidence of
discrimination, and thus the Court turns to the burden-shifting method of McDonnell-Douglas.
The first step for Harris
under the McDonnell-Douglas method is to establish a
prima facie case of sex discrimination. Gonzalez
v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1032 (7th Cir. 1998);
Pasqua,
101 F.3d at 516. To establish a
prima facie case of sex discrimination, Harris must show: (1) she is in a
protected class; (2) she is qualified for her position; (3) she suffered an
adverse employment action; and (4) that others, similarly situated but not of
the protected class, were treated more favorably. Morrow
v. Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998) (citing Geier
v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996)).
[**15]
Once the plaintiff establishes a prima facie case, the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its action. Cowan
v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 445 (7th Cir.
1997). Then the burden shifts back to the plaintiff to show the
defendant's reason is in fact pretext for discrimination. Bahl
v. Royal Indemnity Co., 115 F.3d 1283, 1290 (7th Cir.1997).
The ultimate burden of proof remains with the plaintiff at all times. See Kirk
v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir.
1994).
First, the Court must determine whether Harris has
established a prima facie case of sex discrimination. n5 Defendants maintain
that Harris cannot set forth a prima facie case of sex discrimination. Harris
responds that she was moved out of her position as Director of Rehabilitation
and replaced by a man because she is a woman. She further argues that there is a
genuine issue of fact as to whether she was meeting FWHS' legitimate
expectations and whether FWHS' reason for transfer was pretextual. Based on the
following, the Court concludes that Harris has failed [**16] to
establish a prima facie case of sex discrimination.
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n5 Harris has not presented direct evidence of sex discrimination.
Therefore, the Court need only address her sex discrimination claim under the
indirect method.
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The Court finds that Harris cannot
establish that she suffered an adverse employment action. The Seventh Circuit
has defined an adverse action as follows:
[A]
materially adverse change in the terms and conditions of employment must be
more disruptive than a mere inconvenience or an alteration of job
responsibilities. A materially adverse change might be indicated by a
termination of employment, a demotion, evidenced by a decrease in salary, a
less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to
a particular situation.
Crady
v. Liberty Nat. Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.
1993).
Here, Harris was never fired from FWHS, nor was she
ever demoted. FWHS [**17] approached Harris about transferring after
a number of grievances were filed in her division. She expressed interest in the
position and eventually applied for and accepted the new position of Director of
Development and Marketing. In a letter to Melby, Harris stated that the new job
description was acceptable. She [*901] retained the same benefits
and the same salary she had in her old position, and her supervisor and her
title remained the same. She is the third highest employee of FWHS. Her
responsibilities were changed, not diminished. After Harris accepted the new
position, her co-employees threw her a going away party and she cleaned out her
office. Subsequently, she tried to recant her acceptance of the position.
However, Harris' position had been filled by Ms. Freitag. The Court finds that
this was not an adverse employment action.
Further, Harris can not show
that similarly situated males were treated more favorably. Harris argues that
Jeff Horton and Robert Ford were similarly situated and treated more favorably
than she was. The Court disagrees. Harris was replaced as Director of
Rehabilitation, by Ms. Freitag and ultimately, the position was filled by Ford.
As to Horton, the [**18] record reveals that Horton was a
supervisor at the Rehabilitation Center, while Harris was the Director
of the Rehabilitation Center and that Horton answered to Harris and Harris
answered directly to the Administrator of FWHS. The record also reveals that
Horton did not have trouble with the Union, while the record is replete with
evidence that Harris did. Clearly, Harris and Horton were not similarly
situated.
Next, Harris maintains that Ford was similarly situated to
her. She claims that she was not interviewed for the job even though she was
qualified. This argument also fails. As stated before, the record reveals that
Harris had a history of problems with the Union, while Ford was new to FWHS and
he did not have a history of problems with the Union. Harris has not
demonstrated that she and Ford were similarly situated. Accordingly, the Court
grants Defendants' motions for summary judgment on Harris' sex discrimination
claim, Count I.
B. Count II - Sexual Harassment and Retaliation
Sexual Harassment
Title VII's
prohibition against sex discrimination, 42 U.S.C.2000e-2(a)(1),
protects employees against unwelcome sexual advances that create an offensive or
hostile [**19] working environment. Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct.
2399 (1986). Harassment encompasses all forms of conduct that
unreasonably interfere with an individual's work performance or create an
intimidating, hostile, or offensive working environment. Id.;
Doe
v. R.R. Donnelley & Sons, Co., 42 F.3d 439, 443 (7th Cir.
1994). Under a hostile environment theory, the harassment must be
sufficiently severe or pervasive so as to alter the conditions of the victim's
employment and to create an abusive working atmosphere. McKenzie
v. Illinois Dep't of Transportation, 92 F.3d 473, 479 (7th Cir.
1996)(citing Meritor,
477 U.S. at 67)). Employees may also sue on the basis of quid pro
quo harassment, which occurs when tangible employment benefits are conditioned
upon compliance with a harasser's sexual demands. Bryson
v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir. 1996). The
Supreme Court has recently stated that "the terms quid pro quo and hostile work
environment are helpful, perhaps, in making a rough demarcation between cases in
which threats [**20] are carried out and those where they are not or
are absent altogether, but beyond this are of limited utility." Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 751, 141 L. Ed. 2d 633, 118 S. Ct.
2257 (1998).
The Supreme Court
reaffirmed the principle that a Title VII sexual harassment claim is directed
only at "discrimination ... because of ... sex" in Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75, 140 L. Ed. 2d 201, 118
S. Ct. 998 (1998). Accordingly, the ultimate inquiry for a sexual
harassment plaintiff is whether he or she can prove "that the conduct at issue
was not merely tinged with offensive sexual [*902] connotations, but
actually constituted 'discrimination ... because of ... sex.'" Id.
Conduct
characterized as sexual harassment violates Title VII when: (1) it is
"sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment" from the perspective of a
reasonable person; and (2) when it results in the victim subjectively perceiving
the work environment to be abusive or hostile. Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 126 L. Ed. 2d 295, 114 S. Ct.
367 (1983). [**21] The focus is on the
totality of the circumstances. Saxton
v. A T & T, 10 F.3d 526, 534 (7th Cir. 1993). Factors
relevant to determining whether a particular environment is hostile include "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,
510 U.S. at 23. Hostile environment claims do not grow from
"isolated and innocuous incidents." McKenzie,
92 F.3d at 480 (citing Dey
v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994))(finding
no hostile environment harassment where plaintiff was subject to three sexually
suggestive comments in a three- month period); Carr
v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th
Cir. 1994)("Title VII is not directed against unpleasantness per se but only
... against discrimination in the conditions of employment."). To be
actionable, the workplace must be "hellish." Baskerville
v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995).
[**22]
An employee asserting a claim of hostile work
environment sexual harassment must prove the following: (1) the employee belongs
to a protected group; (2) the employee was subjected to unwelcome sexual
harassment in the form of sexual advances or requests for sexual favors; (3) the
harassment was based on sex; (4) the harassment affected a term, condition, or
privilege of employment; and (5) the harassment was sufficiently severe and
pervasive to alter the conditions of the victim's employment and create an
abusive working environment. Meritor
Savings Bank, 477 U.S. at 66-73 (1986). At issue here, is
whether Harris can prove the second and third requirements, i.e., that she was
subjected to unwelcome sexual harassment in the form of sexual advances/favors
and that the harassment was based on sex.
In her deposition, Harris
admitted that Mayhew never verbally threatened her with physical violence, that
he never made sexual advances toward her, that he never struck her and that he
never physically touched. She also conceded that the September 20, 1994 incident
with Mayhew arose out of a labor dispute. There is no evidence that anyone
connected with Defendants [**23] circulated "a letter falsely
implying that Plaintiff had been tested for Herpes;" that Defendants circulated
"a picture of a nude female with 'call Marcia 618-996-3082' written on it;" n6
and that Defendants circulated "a document entitled 'The Great American Bitch
Award" which named Plaintiff as the recipient and stated that the award was
given to her for 'being a c t." Harris relies on the
proposition that circumstantial evidence might lead to Defendants because at one
time Mayhew admitted to circulating a picture depicting Harris as a witch.
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n6 As to the nude female picture, Harris testified
that she knew the identify of the person who disseminated the material and knew
that this person had no connection with Defendants.
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Harris
claims that Mayhew stalked her on various occasions. These alleged stalkings
consist of Mayhew pulling his car behind Harris' parked car, and sitting in a
bar in a hotel in which Harris was staying. Harris also alleges that Mayhew
sexually harassed her by repeatedly coming [**24] into her office to
deliver grievances. However, Harris testified that the only thing Mayhew
[*903] would say to Harris when he delivered the grievances was
"here is another grievance." Harris also tries to link the fact that her car was
egged while in the parking lot of FWHS to demonstrate that she was sexually
harassed. This argument must fail. At the same time that Harris' car was egged,
another FWHS male employees car was also egged. The Court does not find
that this rises to a level of sexual harassment in which Title VII was meant to
cover.
Next, Harris next claims that Gordon Philip subjected her to a
hostile work environment. She claims that over a ten year period Philip (1) made
inappropriate comments about a phone call Harris received; (2) he called her a
Dragon Lady and a jerk; (3) he twice stated "women rub their eyes, men rub their
balls; and (4) he told a joke while simulating masturbation; (5) he told a blond
joke; and (6) he made a comment about Harris' breasts. While the Court does not
condone Philip's conduct, the Court does not find that it rises to a level of
hostile work environment under the Seventh Circuit. Title VII is
"designed to protect working women from the [**25] kind of male
attentions that can make the workplace hellish for women . . . It is not
designed to purge the workplace of vulgarity." Baskerville
v. Culligan Int'l, 50 F.3d 428, 430 (7th Cir. 1995); See Brill
v. Lante, 119 F.3d 1266, 1274 (7th Cir. 1997)(Distasteful or
inappropriate remarks do not rise to the level of being deeply offensive,
intimidating, and sexually harassing.).
Despite Harris'
numerous allegations of harassing behavior, she fails to support them with
anything but her own conclusory assertions or speculation. In support of her
allegations, she cites almost exclusively to her own deposition. However, these
self-serving, uncorroborated assertions are not evidence of a hostile work
environment. Mills
v. First Fed. Sav. & Loan Ass'n of Belvidere, 83 F.3d 833, 840 (7th
Cir. 1996). The evidence does not reveal that Harris was subjected
to unwelcome sexual advances/favors or that she was harassed based on her sex.
The Court concludes that Harris failed to prove a prima facie case of sexual
harassment based on her sex. Accordingly, the Court grants Defendants' motions
for summary judgment on Harris' sexual harassment [**26] claim,
Count II.
Retaliation
A plaintiff who
brings a retaliation claim under Title VII must either present direct evidence
of retaliation or proceed within the familiar burden-shifting framework set
forth in McDonnell Douglas; McKenzie,
92 F.3d at 482-83. Under the burden-shifting framework, Plaintiff
can establish a prima facie case of retaliation by showing, first, that he
engaged in statutorily protected expression or activity--that is, that he
"opposed" an employment practice made unlawful by Title VII. Alexander
v. Gerhardt Enterprises, Inc., 40 F.3d 187, 195 (7th Cir. 1994); 42
U.S.C. § 2000e-3(a). To constitute opposition, the conduct an
employee objects to need not actually violate Title VII. Dey,
28 F.3d at 1458. Rather, the test is whether the employee
"reasonably believed in good faith that the practice she opposed violated Title
VII." Alexander,
40 F.3d at 195. Second, the Plaintiff must demonstrate that she
suffered an adverse action by her employer. Knox
v. State of Indiana, 93 F.3d 1327 at 1333. Any action
qualifies, so long as it is in some way [**27] adverse. Id.
at 1334 Id.
at 1334 (observing that "There is nothing in the law of retaliation that
restricts the type of retaliatory act that might be visited upon an employee who
seeks to invoke her rights by filing a complaint"). Finally, the
plaintiff must establish a causal link between the protected activity or
expression and the adverse action. Johnson
v. City of Fort Wayne, Ind., 91 F.3d 922, 938-39 (7th Cir.
1996). Such a link may be established by evidence of "a telling
temporal sequence," Holland
v. Jefferson National Life Ins. Co., 883 F.2d 1307 at 1315, or
by demonstrating that the adverse action "took place on the heels of the
protected activity." Alexander,
40 F.3d at 196. A successful
prima facie case creates [*904] a rebuttable presumption of
retaliation, cf. Miranda
v. Wisconsin Power & Light Co., 91 F.3d 1011 (7th
Cir.1996), and shifts to the defendant a burden of articulating a
legitimate, non- retaliatory reason for the challenged conduct. Knox,
93 F.3d at 1334. If the defendant does so, the presumption of
retaliation dissolves, St.
Mary's Honor Center, 509 U.S. at 511-20 (1993),
[**28] and the plaintiff must then establish that
the employer's proffered reason is a pretext for discrimination. Wallace
v. SMC Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997).
The Court finds that Harris has not established a prima facie case of
retaliation. Harris can not prove that she was retaliated against for
complaining about sexual harassment. As stated earlier, Harris cannot establish
that she suffered an adverse employment action. The Seventh Circuit has defined
an adverse action as follows:
[A] materially adverse change in the terms and conditions of
employment must be more disruptive than a mere inconvenience or an alteration
of job responsibilities. A materially adverse change might be indicated by a
termination of employment, a demotion, evidenced by a decrease in salary, a
less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to
a particular situation.
Crady,
993 F.2d at 136.
Here, Harris was never fired from FWHS,
nor was she ever demoted. FWHS approached Harris about transferring after a
number of grievances [**29] were filed in her division. She
expressed interest in the position and eventually applied for and accepted the
new position of Director of Development and Marketing. In a letter to Melby,
Harris stated that the new job description was acceptable. She retained the same
benefits and the same salary she had in her old position. Her supervisor and her
title remained the same. She is the third highest employee of FWHS. Her
responsibilities were changed, not diminished. After Harris accepted the new
position, her co-employees threw her a going away party and she cleaned out her
office. Subsequently, she tried to recant her acceptance of the position.
However, Harris' position had been filled by Ms. Freitag. The Court finds that
this was not an adverse employment action. Accordingly, the Court grants
Defendants' motions for summary judgment on Harris' retaliation claim, Count II.
C. Count III - Age Discrimination
The ADEA was
enacted in 1967 to eliminate workplace discrimination based upon age. McKennon
v. Nashville Banner Publ'g Co., 513 U.S. 352, 357-58, 130 L. Ed. 2d 852,
115 S. Ct. 879 (1995). Under the ADEA,
it is illegal for an employer to discharge [**30] an employee over
forty years old because of that individual's age. 29
U.S.C. §§ 62329
U.S.C. §§ 623(a), 631(c). To succeed in an ADEA claim, a plaintiff
must establish that he would not have received adverse treatment but for his
employer's intentional age-based discrimination. Konowitz
v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir. 1992).
Similar to sex discrimination, sexual harassment and retaliation, a plaintiff may
prove age discrimination either (1) by presenting direct evidence of age
discrimination, or (2) by relying on the indirect, "burden- shifting" method of
proof outlined in McDonnell Douglas. Under the direct
method of proof, the evidence of age discrimination must not only speak directly
to the issue of discriminatory intent, it must also relate to the specific
employment decision in question. Pitasi
v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999)(citations
omitted).
In order to
establish a prima facie case of age discrimination, Harris must demonstrate that
(1) she was a member of the protected class (age 40 or over), (2) she was doing
the job well enough to meet her employer's legitimate expectations, (3) despite
[**31] [*905] her performance, she was discharged, not
hired or promoted, etc., and (4) younger, similarly-situated employees were
treated more favorably, or she was replaced by someone "substantially younger,"
although not necessarily outside the protected class. Denisi
v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir.1996)(citing
O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 134 L. Ed. 2d 433, 116
S. Ct. 1307 (1996)); Hartley
v. Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997)(citing Taylor
v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995)).
With respect to the fourth prong, "an inference [of age discrimination]
cannot be drawn from the replacement of one worker with another insignificantly
younger." O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 134 L. Ed. 2d 433,
116 S. Ct. 1307 (1996). Rather, "a plaintiff must show that she was
replaced by someone 'substantially younger,' although not necessarily outside
the protected class." Cianci
v. Pettibone Corp., 152 F.3d 723 at 728. A ten-year difference
in ages is presumptively "substantial" under [**32] O'Connor. "In cases where the disparity is less, the
plaintiff may still present a triable claim if she directs the court to evidence
that her employer considered her age to be significant. In that instance the
issue of age disparity would be less relevant." Hartley,
124 F.3d at 893. With these principles in mind, the Court addresses
Harris' claim for age discrimination under the indirect method. n7
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- -
n7 The Court need not address whether Harris has established
a case of age discrimination under the direct method. FWHS raised this issue in
its motion for summary judgment. However, Harris did not respond to this issue
in her response, instead she focused on the indirect method.
- -
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For her age discrimination claim, Harris maintains that "the actions of
relieving [her] of her duties as Director of Rehabilitation Services and
replacing her with a younger and less qualified candidate was motivated by the
fact that Plaintiff was over the age of forty (40) in violation of the ADEA
and/or [**33] Plaintiff's age was a motivating factor in that
decision." (First Amended Complaint, Docket Entry No. 3, Count III P 19). FWHS
argues that Harris has failed to present any direct or indirect evidence that
her age had anything to do with FWHS' decision to transfer her to the new
directorship position. The Court agrees.
FWHS argues that Harris cannot
demonstrate the fourth element, that younger, similarly situated employees were
treated more favorably. Harris counters that the difference in 5 to 7 years, two
statements by employees at FWHS and the fact that Melby offered to "buy her out"
demonstrate that there was an age animus towards Harris at FWHS. The statements
Harris relies on to support her claim are: (1) Freitag referred to the two
eldest members of FWHS' Board of Directors as "old farts" in the presence of
FWHS' Administrator Melby; and (2) another supervisor, Gordon Phillip,
repeatedly made comments that Harris' former boss, Administrator Floyd
Cunningham, should "just retire."
As to the statements, the Court
concludes that they do not demonstrate that Harris was transferred from her
position because of her age. First, neither of the statements were made by
anyone at FWHS [**34] with decision-making authority over Harris;
they were made by co-employees. n8 Second, Freitag made the statement regarding
"old farts" after Harris was transferred to her position of Director of
Development and Marketing. Third, Philip's statement that Cunningham should
"just retire" is not considered to be discriminatory on the basis of age. See Halloway
v. Milwaukee County, 180 F.3d 820, 825 (7th Cir. 1999)("requests that
an employee [*906] retire are not necessarily a reference to the
employee's age."). Fourth, the fact that Melby offered to "buy her out"
does not demonstrate age animus. To the contrary, Harris was very interested in
the buy out offer. However, she rejected it because she was offended by the
amount of the offer.
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-Footnotes- - - - - - - - - - - - - - - - - -
n8 Freitag, Philips
and Harris were all supervisors, however, none of them had supervisory capacity
over each other.
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- - - - - - - - - - - - - - - -
Harris has not established that she was
replaced by someone "substantially younger." The Court concludes that Harris'
argument that FWHS' hiring [**35] Freitag and Ford as Director of
Rehabilitation suggests an age animus is without merit. Harris fails to satisfy
the fourth element of the prima facie case of age discrimination. She has not
presented any evidence that FWHS considered her age to be a significant factor
in her transfer. Based on the evidence, the Court finds that age was not a
factor in the decision to transfer Harris. The age difference between Harris and
Freitag and Ford is only 5 to 7 years. This age gap between Harris, Freitag and
Ford is insignificant and insubstantial under Hartley,
O'Connor and Pitasi. Because Harris
failed to state a prima facie case of age discrimination, the Court grants FWHS'
motion for summary judgment on Harris' age discrimination claim, Count III.
D. Count IV - Violence Against Women Act
In
September 1994, Congress passed the Violence Against Women Act, 42
U.S.C. § 13981 42
U.S.C. § 13981 et seq., which established a civil rights
remedy, in the form of a federal cause of action, to victims of gender-motivated
violence. The civil rights provision of the VAWA provides:
[All persons] who commit[] a crime of violence motivated by
[**36] gender and thus deprive[] another of the right [to be free
from gender-motivated violence] shall be liable to the party injured, in an
action for the recovery of compensatory and punitive damages, injunctive
declaratory relief, and such other relief as a court may deem appropriate. 42
U.S.C. § 13981(c).
The VAWA does not
cover "random acts of violence unrelated to gender" or "acts that cannot be
demonstrated, by a preponderance of the evidence, to be motivated by gender . .
. ." 42
U.S.C. § 1398142
U.S.C. § 13981(d)(1). Rather, Congress explicitly limited the
VAWA's civil rights provision to cover only "crime[s] of violence committed
because of gender or on the basis of gender, and due, at least in part, to an
animus based on the victim's gender . . ." 42
U.S.C. § 1398142
U.S.C. § 13981(d)(1). Thus, to state a cause of action under the
VAWA, a plaintiff must allege that he or she was a victim of a crime of violence
that was committed because of his or her gender and was carried out, at least in
part, on the alleged perpetrator's animus based upon the plaintiff's gender.
The VAWA's definition of gender motivated [**37] crime is
based on Title VII. See Crisonino
v. New York Housing Authority, 985 F. Supp. 385, 391 (S.D.N.Y.
1997)(citing S. Rep. 102-197 at 50 (1991)); Doe
v. Hartz, 970 F. Supp. 1375, 1407 (N.D. IA. 1997)(citing S.Rep. No.
103-138, at 52 (1993)). Congress explained that "proof of 'gender
motivation' under discrimination proceeds under other civil rights laws." Crisonino,
985 F. Supp. at 391 (citing S.Rep. No. 103-138, at 52 (1993)).
Therefore, the Court must draw from Title VII case law in deciding this motion.
Defendants argue that Harris' claim under the VAWA must fail because
neither FWHS nor any one connected with FWHS committed any crime of violence
under the VAWA. Harris responds that Mayhew's conduct during the September 20,
1994 incident constituted a crime of violence motivated by gender in violation
of the VAWA. n9
- - - - - - - - - - - - - - - - - -Footnotes- - -
- - - - - - - - - - - - - - -
n9 Earlier, the Court denied
Defendants' motions to dismiss on this issue based on Harris' allegations
contained in the First Amended Complaint (Docket Entry No. 41). Specifically,
the Court found that "Harris bases her VAWA claim upon different crimes
allegedly motivated by gender: assault, intimidation, hate crime and stalking.
Any one of these alleged crimes, if motivated by gender, is sufficient to
establish a VAWA cause of action." Here, the Court concludes that Harris has not
established that Defendants or anyone connected with Defendants committed a
crime of violence based on gender against Harris.
- - - - - - - -
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[**38] [*907]
The Court does not consider the
September 24, 1994 argument between Harris and Mayhew to be a crime of violence
based on gender. It was a heated argument over a labor issue at FWHS. Both
Harris and Mayhew were yelling and saying mean things to each other. This
incident was not because of anyone's gender. In her deposition, Harris admits
that Mayhew never threatened her with physical harm, that he never touched her
in any way, and that he never raised his fist or otherwise attempted to strike
her. In fact, Harris cannot recall any other time that Mayhew raised his voice
to her. Nor can Harris recall whether Mayhew ever spoke to her about anything
other than FWHS' labor matters.
Next, she claims that the fact that her
car was vandalized (the egging incident) supports her claim under the VAWA. This
argument lacks merit. As stated earlier, Harris' car and another male
FWHS employee's car were egged. This does not support her claim that she was
targeted because of her gender. Further, Harris has not produced evidence that
Defendants or anyone connected with Defendants egged her car. She further
alleges that Mayhew stalked her on various occasions. Sitting in a bar in a
hotel where [**39] Harris was staying, showing up on the premises of
FWHS (but not in Harris' presence), and pulling behind her car do not constitute
stalking. Even Harris testified that Mayhew did not say anything to her or make
gestures to her during these incidents. Additionally in her First Amended
complaint, Harris alleges that Mayhew was arrested for illegally threatening her
job through political measures and that his actions constituted
felonies under Illinois state law. n10 These actions do not support her claim
under the VAWA. The record is replete with testimony that Harris and Mayhew did
not like each because of their respective positions regarding Unions, not
because of gender. Because Harris has not established a prima facie case under
the VAWA, the Court need not address Defendants' arguments that the VAWA is
unconstitutional. Accordingly, the Court grants Defendants' motions for summary
judgment on Harris' VAWA claim, Count IV.
- - - - - - - - - - - -
- - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10
Harris neglected to inform the Court that the charges against Mayhew were
summarily dismissed in January 1998.
- - - - - - - - - - - - - -
- - -End Footnotes- - - - - - - - - - - - - - - - - [**40]
E. Count V - Tortious Interference with Contract
Under Illinois
law, the elements of tortious interference with contract are: (1) the existence
of a valid and enforceable contract between the plaintiff and another; (2) the
defendant's awareness of this contractual relation; (3) the defendant's
intentional and unjustified inducement of a breach of the contract which causes
a subsequent breach by the other; and (4) damages. A-Abart
Elec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th
Cir.1992). Inducement of the cancellation of an at-will contract,
at most, constitutes interference with a prospective economic advantage, not
interference with contractual relations. Prudential
Ins. Co. of Am. v. Sipula, 776 F.2d 157, 162 (7th Cir. 1985).
Because Harris was/is an at-will employee of FWHS, Harris cannot state a claim
for tortious interference with contract based on any interference by these
Defendants. To the extent that Count V is based on this theory, the Court grants
Defendants' motion for summary judgment.
Harris also attempts to state a
claim for tortious interference with prospective economic advantage based on
[**41] Defendants' actions in inducing FWHS to [*908]
transfer Harris to the position of Director of Development and Marketing. The elements of
this tort are: (1) a reasonable expectation by the plaintiff of entering into a
valid business relationship; (2) the defendant's knowledge of the plaintiff's
expectancy; (3) purposeful interference by the defendant that prevents the
plaintiff's legitimate interest from ripening into a valid business
relationship; and (4) damages to the plaintiff resulting from such interference.
Fellhauer
v. City of Geneva, 142 Ill. 2d 495, 568 N.E.2d 870, 878, 154 Ill. Dec. 649
(Ill. 1991). "Purposeful interference" means that the defendant has
committed some impropriety in interfering with the expectancy, and is an element
that the plaintiff must plead and prove. See Dowd
& Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358, 371, 230 Ill.
Dec. 229 (Ill. 1998).
The Court finds that Harris has
failed to establish a prima facie case of tortious interference with prospective
economic advantage. Harris has not shown that Defendants committed some
impropriety in interfering with the expectancy. There is no evidence that
Defendants [**42] knew anything about FWHS and Harris' business
relationship. Harris applied for the job of Director of Development and
Marketing, she was offered the job and she accepted the job. In fact, she also
helped define the responsibilities of the position. Afterwards, she tried to
recant her position because she felt that the position did not have the same
amount of responsibility as her last position. There is no evidence that
Defendants used their power to remove Harris from her job as Director of
Rehabilitation. Accordingly, the Court grants Defendants' motion for summary
judgment on Harris tortious interference claim, Count V.
VI.
Sanctions
A. Rule 11 Sanctions
FEDERAL RULE OF
CIVIL PROCEDURE 11(b) mandates that an attorney who presents a pleading
to the court certify that:
to the best of [his or her] knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances -- (1) it
is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; . . . (3)
the allegations and other factual contentions have evidentiary support or, if
specifically so identified, [**43] are likely to have evidentiary
support after a reasonable opportunity for further investigation or discovery
[and] . . . (4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on a lack of
information or belief.
FED.R.CIV.P. 11(b)
(emphasis added).
To measure the
reasonableness of the party's inquiry into the factual basis of its claim, the
Court must look to many factors including: "whether the signer of the documents
had sufficient time for the investigation; the extent to which the attorney had
to rely on his or her client for the factual foundation underlying the pleading,
motion or other paper; whether the case was accepted from another attorney; the
complexity of the facts and the attorney's ability to do a sufficient pre-filing
investigation; and whether discovery would have been beneficial to the
development of the underlying facts." Divane
v. Krull Electric Co., Inc., 200 F.3d 1020, 1028 (7th Cir.
2000)(quoting Brown
v. Federation of State Medical Bds. of the United States, 830 F.2d 1429,
1435 (7th Cir. 1987)).
One of the basic
purposes of Rule [**44] 11 is "to
deter baseless filings in the district court. . . ." Fries
v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998)(quoting Cooter
& Gell v. Hartmarx Corp., et al., 496 U.S. 384, 393, 110 L. Ed. 2d 359,
110 S. Ct. 2447 (1990)). To carry out this purpose, Rule
11 imposes on parties a responsibility to file papers with the Court
only when a party has reasonable basis in fact and law for the proposition it is
advocating. Indianapolis
Colts v. Mayor & City Council of Baltimore, [*909] 775 F.2d
177, 181 (7th Cir. 1985)(citing Eastway
Construction Corp. v. City of New York, 762 F.2d 243, 254 (2nd Cir.
1985)). If the Court finds grounds for sanctions, the Court has a
duty, not an option, to sanction the opposing party. Chambers
v. United States, 501 U.S. 32, 67, 115 L. Ed. 2d 27, 111 S. Ct. 2123
(1991).
Because the
purpose of Rule 11 is to deter rather than punish, the type of
sanction a Court can impose depends on the opposing party's conduct. See Advisory Committee Notes to 1993 Amendments to Rule
11. "[Sanctions] may consist of, or include, directives of a
nonmonetary [**45] nature, an order to pay a penalty into court . .
. an order directing payment to the movant of some or all of the reasonable
attorneys' fees and other expenses incurred as a direct result of the
violation." FED.R.CIV.P. 11(c)(2). The type of sanction allowed
is limited. If the pleading or motion is being presented for any improper
purpose, "such as to harass or to cause unnecessary or needless increase in the
cost of litigation," the Court may award monetary sanctions against the opposing
party. FED.R.CIV.P. 11(b)(1). However, if the sanction is
imposed on the grounds that the opposing party has presented claims that are not
"warranted by existing law or the establishment of new law," a court does not
have the power to impose monetary sanctions. FED.R.CIV.P.
11(c)(2)(A).
In addition, Rule
11(c)(1)(A) requires that the parties moving for sanctions follow two
procedures. First, the motion for Rule 11 sanctions must be
made "separately from other motions or requests and [must] describe the specific
conduct alleged to violate subdivision (b)." Divane,
200 F.3d at 1025 (quoting FED.R.CIV.P. 11(c)(1)(A)). Allowing a Rule 11 motion [**46] to be made along with another
motion is considered an abuse of discretion. Id. (citing Corley
v. Rosewood Care Center, Inc., 142 F.3d 1041, 1058 (7th Cir.
1998)). Second, the motion may not be filed with the court unless,
within twenty-one days of service, the opposing party has not withdrawn or
corrected the challenged behavior. Id. (citing FED.R.CIV.P.
11(c)(1)(A)). Imposing sanctions by motion without adhering to the
twenty-one day safe harbor is considered an abuse of discretion. Id. (citing
Johnson
v. Waddell & Reed, Inc., 74 F.3d 147, 150-51 (7th Cir. 1996)).
B. 28
U.S.C. § 1927 Sanctions
Similar to Rule 11, 28
U.S.C. § 1927 allows recovery of fees against an attorney if that
attorney litigates "unreasonably and vexatiously."
Ross
v. City of Waukegan, 5 F.3d 1084, 1089 n. 6 (7th Cir. 1993)(citing
Koffski
v. Village of North Barrington, 988 F.2d 41, 45 n. 8 (7th Cir.
1993)). "'If a lawyer pursues a path that a reasonably careful
attorney would have known, after appropriate inquiry, to be unsound, the conduct
is objectively [**47] unreasonable and vexatious.'" Kapco
MFG. Co., Inc. v. C & O Enterprises, Inc., 886 F.2d 1485, 1491 (7th
Cir. 1989)(quoting
In
re TCI, Ltd., 769 F.2d 441, 445 (7th Cir.1985)). Ordinary
negligence does not give rise to § 1927 sanctions; rather some
evidence must exist that an attorney acted with either subjective or objective
bad faith. Kotsilieris
v. Chalmers, 966 F.2d 1181, 1183-84 (7th Cir. 1992).
The Seventh
Circuit has held that sanctions under § 1927 are appropriate
"'only in instances of a serious and studied disregard for the orderly processes
of justice,'"
Ross
v. City of Waukegan, 5 F.3d at 1089 n. 6 (quoting
Kiefel
v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir.
1968)), or "where a 'claim [is] without a plausible legal or
factual basis and lacking in justification.'" Burda
v. M. Ecker Co., 2 F.3d 769, 777 (7th Cir. 1993)(quoting
Walter
v. Fiorenzo, 840 F.2d 427, 433 (7th Cir.1988)). "It is within
the sound discretion of the district court whether to grant or to deny sanctions
under § 1927." Ross,
5 F.3d at 1089 n. 6. [**48] With these
principles in mind, the Court turns to motions for sanctions. [*910]
VII. Analysis n11
- - - - - - - - - - -
- - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 The
Court finds that the tone, the attitude and the language used in the motions for
sanctions improper. The Court finds this type of conduct unprofessional.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
First, Harris claims that Defendants did not comply with
the "safe harbor" time limit of Rule 11 in filing their motions
for sanctions. Harris argues that Defendants Mayhew, LIUNA and SILDC's motion
for sanctions merits denial because she moved for leave to file an amended
complaint within the twenty-one day period. n12 Further, she argues that FWHS'
motion violates the twenty-one day rule, because FWHS served and filed its
motion the same day. First, the Court must determine whether Mayhew, LIUNA and
SILDC's motion complied with the safe harbor rule and then determine whether
FWHS complied with the safe harbor rule.
- - - - - - - - - - - -
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n12
Harris did not cite any case law for this proposition. The Court is not aware of
any which stands for the same.
- - - - - - - - - - - - - - - -
-End Footnotes- - - - - - - - - - - - - - - - - [**49]
As
stated earlier, Defendants Mayhew, LIUNA and SILDC served their Rule 11 motion for sanctions on Harris' attorneys on May 25,
1999. Twenty-one days later on June 16, 1999, Mayhew, LIUNA and SILDC filed
their motion for sanctions with the Court. Harris argues that because she
moved for leave to file a second amended complaint on June 15, 1999,
Mayhew, LIUNA and SILDC violated the twenty-one day rule by filing the motion
with the Court. The Court does not agree with Harris.
As of June 16,
1999, the Court had not granted Harris leave to file a second amended complaint.
The proposed Second Amended Complaint did not supersede the First Amended
Complaint, therefore, the First Amended Complaint was and still is the valid
complaint on file. Harris did not appropriately correct or withdraw the
allegations contained in the First Amended Complaint within the twenty-one day
time period provided by the rule. The Court finds that Defendants Mayhew, LIUNA
and SILDC properly filed their Rule 11 motion.
As to
whether FWHS properly followed requirements of Rule 11, Harris
argues that FWHS' motion violates the twenty-one day rule because FWHS served
and filed its motion [**50] the same day. The Court agrees with
Harris. During the August 16, 1999 hearing, FWHS' counsel asked for leave to
file a motion for sanctions pursuant to Rule 11 and pursuant to
28
U.S.C. § 1927. The Court granted FWHS' request and allowed FWHS an
extension of time to file the motion. FWHS filed its Rule 11
and
28
U.S.C. § 1927 motion for sanctions on September 20, 1999 (Docket
Entry No. 120).
Here, the Court concludes that FWHS did not comply with
either of the two procedures of Rule 11. Rule 11(c)(1)(A)
specifically states that
"A motion for
sanctions under this rule shall be made
separately from other motions
or requests . . . ." FED.R.CIV.P 11(c)(1)(A)(emphasis added);
Divane,
200 F.3d at 1025. Rule 11(c)(1)(A) also states that a sanctions
motion "shall not be filed with or presented to the court unless, within
twenty-one days after the service of the motion . . . the challenged paper,
claim, defense, contention, allegation or denial is not withdrawn or
appropriately corrected." FED.R.CIV.P. 11(c)(1)(A). FWHS filed
its Rule 11 motion for sanctions in
conjunction
[**51] with its
28
U.S.C. § 1927 request for sanctions, and it also served its motion
for sanctions on Harris the same day it filed the motion for sanctions with the
Court. Therefore, the Court will not consider FWHS' motion for sanctions as one
brought pursuant to Rule 11. However, the Court will consider
it as one brought pursuant to
28
U.S.C. § 1927. Accordingly, the Court denies FWHS' motion for
sanctions pursuant to Rule 11. The Court now turns to the
merits of all Defendants' motions for sanctions. [*911]
Defendants argue that Harris' First Amended Complaint and Harris'
memorandum of law in opposition to Defendant's motion to dismiss and/or for
summary judgment contain many specific allegations which are not supported by
evidence. Further, they argue that those pleadings were filed to cause
unnecessary delay and for the purpose of needlessly increasing the cost of
litigation. Harris responds that she and her attorneys have acted in good faith
throughout the litigation
Defendants contend that there is no evidence
to support the allegation: "On January 2, 1996, Plaintiff met with John Markley,
then acting administrator [**52] of FWHS, and informed him that
Mayhew made and/or caused to be made threatening comments to Plaintiff,
including a threat to shoot her." (Paragraph 20, Count I of the First Amended
Complaint). Harris and her counsel respond that this allegation was
inadvertently included in the First Amended Complaint and that in three other
places in the First Amended Complaint, the same allegation was changed leaving
out Mayhew's name. The changed allegation states: "On January 2, 1996, Plaintiff
met with John Markley, then acting administrator of FWHS, and informed him that
she had received threatening phone calls, including a threat to shoot her."
(Paragraph 20, Count II; Paragraph 17, Count IV and Paragraph 15, Count V). As
to Paragraph 20, Count I (the allegation that referenced Mayhew), Harris
testified:
"what I said to John Markley was that I had received some
threatening phone calls and told him what the phone calls said about threats
to shoot me and it was that he assumed that it came from Mayhew. . . . I've
told you what I recall and I explained that to my attorneys and they felt that
was still accurate."
(Harris deposition, page 413, lines
13-22).
As to Paragraph 20, Count [**53] II; Paragraph 17,
Count IV and Paragraph 15, Count V, Harris testified that she was told on
February 19, 1999, that a man was identified as making threatening phone calls
to her, and that she does not have any facts to associate this man with any of
the Defendants. She further testified that this man admitted to making most of
the phone calls and that the man who made most of the phone calls denied that
there was any connection or that anyone put him up to it. (Harris deposition,
page 350, lines 1-18).
In addition, the First Amended Complaint contains
other allegations which make reference that Mayhew "made or caused to be made
several harassing and threatening phone calls and on one occasion, threatened
and/or caused someone else to threaten to kill Plaintiff, . . . ." (Paragraph
16, Count IV) or makes references to threatening phone calls (Paragraph 30(e),
Count II and Paragraph 23(e), Count V). The Court finds that these allegations
with or without reference to Mayhew are misrepresentations of the evidence and
do not contain evidentiary support, in light of the fact that a man not
associated with Defendants has been identified as the perpetrator of the calls.
In her July 8, 1999 response, [**54] Harris simply states that she
should not be sanctioned because her second amended complaint either left out
the reference to Mayhew or left out the allegation all together. Harris did not
even attempt to acknowledge that the person who made the calls was not connected
to Defendants.
Similarly, Defendants argue that there is no evidence to
support Harris' allegations regarding vandalism (Paragraph 30(e), Count II and
Paragraph 23(e), Count V). Harris testified that her car and another employees
car, Floyd Cunningham, had eggs thrown on it when parked in an employee-only
parking lot. (Harris deposition, pages 345-348). Harris thought that the cars
were targeted, therefore, Defendants were automatically responsible (Harris
deposition, pages 345-347). Harris responds that "the jury can decide at trial
the extent to which it believes Defendant Mayhew was involved in
[*912] the numerous acts of harassment and intimidation to which he
does not admit. In any event this paragraph has been amended in the second
amended complaint to delete any allegations that Defendants committed these
acts; the new complaint simply states that these occurred." (Docket Entry No.
78). The Court finds that a reasonable [**55] attorney would not
have included these allegations without further proof. The Court finds that
allegations about Defendants and vandalism were pled in bad faith.
Defendants further contend that the allegations in Paragraphs 18 and 19
of Count IV of the First Amended Complaint are half truths which are meant to
mislead the Court. Paragraphs 18 and 19 of Count IV state: "On or about July 16,
1997, Mayhew was arrested for illegally threatening Plaintiff's job through
political measures. The aforementioned conduct of Mayhew constituted felonies
under Illinois state law, including without limitation the following: 720 I.L.C.S. 5/12-6, 720 I.L.C.S. 5/12-7.1 and
720
I.L.C.S. 5/12-7.3." Defendants argue that Harris left out the fact that
this charge was dismissed six months later and that Harris and her attorneys
knew this before she filed suit.
As to the allegation that Mayhew was
arrested, Harris responds that this allegation is true, because Mayhew was
arrested on that charge on that date, but in good faith Harris has taken the
allegation out of the second amended complaint. As to the allegation that
Mayhew's conduct constituted felonies, Harris argues that the circumstantial
[**56] evidence demonstrates that his conduct did "constitute" these
crimes and Harris and her attorneys stand by this allegation. The Court
concludes that including the allegation that Mayhew was arrested while leaving
out the fact that the charges against Mayhew were dropped, indicates bad faith
and an attempt to mislead the Court.
The Seventh Circuit recently
stated: "Spirited argument before the Court is encouraged, but not deception."
Cleveland
Hair Clinic, Inc., v. Puig, 200 F.3d 1063, 1069 (7th Cir.
2000). "An honest presentation of the case, adherence to the basic
technical rules, and a colorable basis in law and fact -- as well as a certain
amount of common sense -- will shield litigants and their attorneys from
sanctions." Id. (quoting Tomczyk
v. Blue Cross & Blue Shield United of Wis., 951 F.2d 771, 779 (9th Cir.
1991)).
Here, the Court finds that Harris and her attorneys
repeatedly misrepresented the evidence to the Court. The misrepresentations
began in the original complaint n13 and continued throughout Harris' additional
pleadings in this litigation. n14 To compound the improprieties, Harris' counsel
stood by the misrepresentations [**57] during briefing on her motion
for leave to file a second amended complaint, in her responses to the motions
for sanctions and in her responses to the motions for summary judgment, even
though Defendants presented evidence contradicting both Harris' new and old
allegations.
- - - - - - - - - - - - - - - - - -Footnotes- - - -
- - - - - - - - - - - - - -
n13 On September 16, 1998, attorney
Charles Poplstein from the law firm of Thompson Coburn signed and filed Harris'
original complaint which contained the following allegation: on or about July
16, 1997, Mayhew was arrested for threatening to kill Plaintiff and making
threatening and intimidating phone calls. (Docket Entry No. 1, Count IV,
paragraph 18). The First Amended Complaint filed on October 6, 1998 did not
include this allegation (Docket Entry No. 3). However, on May 20, 1999, Harris
testified at her deposition that she approved of the filing of the original
complaint but informed her attorneys prior to the filing of the original
complaint that the allegation was false. (Harris deposition, page 443, lines
3-20). The Court notes that this conduct is totally unacceptable.
n14 Harris and her attorneys' characterization that the September 20, 1994,
verbal argument between her and Mayhew (the incident which involved the
suspension of a pro-union employee) is a violation of the Illinois Hate Crime
statute indicates bad faith. (Docket Entry No. 133, page 17).
- -
- - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**58]
The Court further finds that Harris' attorneys failed
to make a "reasonable inquiry" [*913] under the circumstances and
failed to conduct a reasonable investigation into the validity of its
allegations before making Defendants defend this action. The Court also finds
that this case was filed to harass and to cause unnecessary or needless increase
in the cost of litigation. Based on the circumstances in this case, the Court
finds that sanctions are warranted and proper under both Rule 11 and 28
U.S.C. § 1927. VIII. Conclusion
Accordingly, the
Court GRANTS Laborers' International Union of
North America, Southern Illinois Laborers' District Council and
Randall J. Mayhew's motion for summary judgment (Docket Entry No. 88). The Court
GRANTS Franklin-Williamson's motion for partial summary
judgment on Counts I and II (Docket Entry No. 98). The Court GRANTS Franklin-Williamson's motion for partial summary
judgment on Counts III and IV (Docket Entry No. 105). The Clerk of the Court
shall enter judgment in favor of Laborers' International Union
of North America, Southern Illinois Laborers' District Council,
and Randall J. Mayhew against Marcia [**59] Harris on Counts I, II,
IV and V of the First Amended Complaint. Further, the Clerk of the Court shall
enter judgment in favor of Franklin-Williamson and against Marcia Harris on
Counts I, II, III, and IV of the First Amended Complaint.
In addition,
the Court GRANTS Laborers' International Union
of North America, Southern Illinois Laborers' District Council
and Randall J. Mayhew's motion for Rule 11 sanctions (Docket
Entry No. 62). The Court GRANTS in part and DENIES in
part Franklin-Williamson's motion for Rule 11
sanctions and for sanctions pursuant to
28
U.S.C. § 1927 (Docket Entry No. 120). The Court GRANTS Laborers' International Union of North
America, Southern Illinois Laborers' District Council and
Randall J. Mayhew's motion for sanctions pursuant to
28
U.S.C. § 1927 (Docket Entry No. 124).
Pursuant to both Federal Rule of Civil Procedure 11 and
28
U.S.C. § 1927, the Court hereby SANCTIONS Harris
and her attorneys, the law firm of Thompson Coburn. In order to deter similar
future conduct, the Court concludes that monetary sanctions are appropriate.
[**60] The Court ORDERS Harris and her attorneys to
reimburse Defendants for the reasonable attorney fees and expenses incurred in
defending this action. The parties are strongly encouraged to reach an agreement
on the amount of such fees and expenses and to file a joint stipulation of the
amount.
In the event the parties are unable to reach an agreement,
Defendants have up to and including Tuesday, May 30, 2000, to file an
itemization of all fees and expenses, together with sufficient detail and/or
explanation demonstrating that such fees and expenses are reasonable. Harris and
her attorneys have until Tuesday, June 13, 2000, to respond and Defendants have
until Monday, June 27, 2000 to reply.
IT IS SO ORDERED.
Signed this 10th day of May, 2000 at East St. Louis, Illinois.
DAVID R. HERNDON
United States District Judge
