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Attorney Told She Was 'Not That Pretty' Can Advance Sex Bias Claims Against City

Monday, August 26, 2013
By Anne A. Marchessault

A female attorney with the city of Evanston, Ill., whose superiors told her she was “not that pretty,” and that previous hires were “just gorgeous” and wore “tight sweaters” and “short skirts” can advance her sex bias claims against the city, a federal judge ruled Aug. 21 (Tober-Purze v. City of Evanston, N.D. Ill., No. 1:13-cv-01503, 8/21/13).

Evanston fired Elke Tober-Purze three days after learning that she had filed a complaint against the city with the Illinois Department of Labor. She alleged that the city discriminated against her on the bases of sex and age during her employment, and that her discharge was in retaliation for filing a complaint with IDOL.

Tober-Purze plausibly alleged that she and other female attorneys in Evanston were subjected to derogatory comments and disparate treatment in violation of Title VII of the 1964 Civil Rights Act, Judge John W. Darrah of the U.S. District Court for the Northern District of Illinois decided. Because the city replaced Tober-Purze and other age-protected employees with significantly younger attorneys, the court also advanced her claim under the Age Discrimination in Employment Act.

The court held that Evanston also plausibly violated the Illinois Wage Payment and Collection Act by denying Tober-Purze sick and vacation pay to which she was entitled under the city's employment policy.

Tober-Purze's IWPCA retaliation claim failed, however, because the court said it would not retroactively apply an amendment to the state wage law permitting a private cause of action for retaliation. 

Comparative Treatment Creates Sex Bias Claim

The court decided that Tober-Purze alleged sufficient facts to advance a Title VII sex discrimination claim against Evanston because she is in a protected class as a female, and her job performance met the expectations of her employer because she was given good evaluations and never disciplined prior to her discharge.

According to Tober-Purze's complaint, she was paid less than and did not receive the same promotions as her male counterparts.

One superior allegedly told Tober-Purze she was “not that pretty,” and another superior said previous female hires were “smart,” “gorgeous,” and wore tight sweaters and short skirts.

Tober-Purze alleged that another superior told her and female co-workers, “it's been all downhill since women got the vote.” The superior also told them to get rid of magazines featuring female attorneys.

Furthermore, Tober-Purze claimed that she was deprived of a pre-termination hearing, not paid sick and vacation pay, and fired because the city desired to have a substantially or all-male office.

“Failing to properly compensate Tober-Purze on the basis of her sex and terminating her on the basis of her sex are both adverse employment actions sufficient to support a claim of sex discrimination under Title VII,” Darrah wrote. 

Assume Age Bias From Younger Replacements

The court denied the city's motion to dismiss Tober-Purze's ADEA claim. Because she is over 40 years old and performed her job satisfactorily, the court said Tober-Purze is a member of a protected class under the ADEA.

Tober-Purze alleged that the city sought to replace her with younger individuals, and eventually hired two attorneys at least 15 years younger as her replacements. She said age discrimination was the primary reason for her discharge, and that other age-protected employees were also replaced by significantly younger attorneys.

In addition, Tober-Purze claimed the city did not pay her for accrued sick and vacation time due to age bias.

“Therefore,” Darrah said, “Tober-Purze has sufficiently alleged enough facts to state a claim for age discrimination under the ADEA.” 

Denying Accrued Time Actionable IWPCA Claim

Finding sufficient evidence to support Tober-Purze's claim that an employment policy entitled her to unpaid sick and vacation time, the court denied the city's motion to dismiss her claim for a violation of the IWPCA.

“In order to establish a violation of the IWPCA for not paying accrued vacation and sick time,” the court explained, “a plaintiff must provide specific allegations of an agreement between the employer and the employee to provide the vacation and sick time.”

Tober-Purze alleged that she was entitled to sick pay and vacation pay under Evanston's employment policy, and that the city breached this policy.

Evanston told Tober-Purze she was going to lose 135.32 vacation accrual hours, and her supervisor warned her not to get anyone involved regarding the lost hours. After firing Tober-Purze, the city decided to withhold from her over 400 hours of sick pay for allegedly failing to give proper notice before she left her position.

“While Tober-Purze fails to allege the specific terms of the Evanston employment policy with regard to unpaid vacation and sick time, she states enough facts to establish a claim that a policy regarding her unpaid time existed and that Evanston violated this policy or agreement,” Darrah concluded, noting that she could not have satisfied the purported “proper notice” requirement because Evanston terminated her without notice. 

No Retroactive Application of Retaliation Law

The court dismissed Tober-Purze's claim for retaliation under the IWPCA because it said no private cause of action for retaliation existed when she was fired in 2010.

After the city informed Tober-Purze she was going to lose 135.32 vacation accrual hours, she filed a complaint with IDOL.

Tober-Purze alleged that her discharge--which occurred three days after the complaint was delivered to the city--was retaliatory. Her supervisor told her that she was being fired for both “ongoing performance issues” and because she filed a complaint with the IDOL.

“Illinois courts … operate under a presumption against retroactivity,” Darrah explained, and amendments to state laws can apply retroactively only when they are procedural and not substantive.

Although retaliation was a criminal offense punishable under the IWPCA when Tober-Purze was fired, no civil cause of action existed at that time.

“The amendment, therefore, did not add to the penalty assessed for retaliation; it created a new, distinct remedy, which is a substantive, rather than procedural, change,” Darrah wrote. “Because the amendment affected a substantive change, the amendment to the IWPCA does not apply retroactively, and Tober-Purze has no right of action under this provision.”

Cary E. Donham, Kathleen F. Howlett, and Daniel R. Saeedi of Shefsky & Froelich in Chicago represented Tober-Purze. Lauren S. Novak and Joseph J. Perkoski of Robbins, Schwartz, Nicholas, Lifton & Taylor in Chicago represented the city.


Text of the opinion is available at http://www.bloomberglaw.com/public/document/ToberPurze_v_City_Of_Evanston_Docket_No_113cv01503_ND_Ill_Feb_26_.

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