Opinion
Cause No. IP 01-0899-C-B/G
March 31, 2003
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This employment discrimination case is brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d)(1). Plaintiff Tanya Cooper-Schut alleges that her former employer, Visteon Automotive Systems, tolerated or condoned a hostile work environment based on gender and race, discriminated against her on the basis of her gender and race by constructively discharging her, and paid her less than a male counterpart in violation of the Equal Pay Act. The case is before us on Visteon's Motion for Summary Judgment. For the following reasons, we GRANT Visteon's motion as to all claims.
Factual Background
On May 22, 2000, Plaintiff, Tanya Cooper-Schut ("Cooper-Schut"), began her employment with Defendant, Visteon Automotive Systems ("Visteon"), at its Connersville, Indiana plant. Undisputed Material Facts ¶¶ 1-2. She worked as a supervisor in the FS-10 Compressor Department until she resigned on September 11 or 12, 2000. Id. ¶ 1; cf. Compl. ¶¶ 2, 52 with Cooper-Schut Dep. p. 176. Cooper-Schut is an African-American female. Id. ¶ 4.
At the time Visteon hired Cooper-Schut, it also hired Michael Blanchard ("Blanchard"), an African-American male, to work as a supervisor in the FS-10 Compressor Department. Undisputed Material Facts ¶¶ 6, 8. Blanchard received a starting salary of $50,000, $3,800 more than Cooper-Schut, because of his more extensive experience supervising unionized production employees. Id. ¶¶ 9-24. Cooper-Schut's salary of $46,200 was greater, however, than the five other Grade 5 supervisors in the FS-10 Compressor Department, four of whom were Caucasian males and one of whom was a Caucasian female. Id. ¶¶ 25-26.
During Cooper-Schut's employment at Visteon's Connersville plant, Donald Vincent ("Vincent"), an African-American male, was the Human Resources Manager. Undisputed Material Facts ¶ 27. Cooper-Schut reported to Day Shift Superintendent, Bryan Sasser ("Sasser"); in addition, the Area Manufacturing Manager for the FS-10 Compressor Department was Henry Morrissey ("Morrissey"). Id. ¶¶ 30-31. Sasser completed Cooper-Schut's performance reviews, which were approved by Morrissey. Id. ¶ 42. When Cooper-Schut worked first shift in the compressor department, from the date of hire to mid-July 2000, her Group Leader was Greg Bonwell ("Bonwell"). Id. ¶ 32. When she worked the afternoon shift in the compressor department, from mid-July 2000 to the end of her employment, her Group Leader was John Warren ("Warren"), an African-American male. Id. ¶ 38. Group Leaders oversee and coordinate production schedules as well as work with union representatives to resolve concerns and address grievances; they do not have the authority to fire, demote, discipline, or transfer employees, including Cooper-Schut. Id. ¶¶ 40-41.
The facts presented to us by the parties do not indicate Sasser's race or that of Morrissey and Bonwell.
At all times during Cooper-Schut's employment, Visteon maintained a "Zero-Tolerance of Harassment" policy. Undisputed Material Facts ¶ 43. Posted at the plant was a notice from Vincent designating Cynthia Holm ("Holm") as the Equal Employment Opportunity Coordinator. Id. ¶ 44. During the course of Cooper-Schut's employment, harassment training was provided to all salaried personnel. Id. ¶ 45.
The incidents of which Cooper-Schut complains took place over the course of her four-month employment with Visteon. In May of 2000, Blanchard told Cooper-Schut that Warren had called her a "slut," rhyming "slut" with her last name. Cooper-Schut, however, was not present when Warren allegedly made the comment. Undisputed Material Facts ¶¶ 97-98, 141. In addition, Warren, who had recently gone through a divorce, remarked to Cooper-Schut that "black women will take you to the cleaners." Id. 149-150. Cooper-Schut did not complain of these comments for three months, until her meeting with Vincent "right before Labor Day." Cooper-Schut Dep. p. 172.
While Cooper-Schut was still in training, Bonwell reprimanded Cooper-Schut, screaming at her in front of her co-workers about an issue unrelated to the purpose of the meeting for which all were gathered, in a manner that Cooper-Schut believed he did not use with his male subordinates. Cooper-Schut Dep. pp. 74-77. Cooper-Schut never complained to anyone of Bonwell's behavior, but Sasser was present to witness the incident. Undisputed Material Facts ¶¶ 35-36; Cooper-Schut Dep. p. 76. In addition, just after Cooper-Schut began working for Visteon, William Goins ("Goins"), a maintenance employee, informed Cooper-Schut of KKK activity at the Connersville plant. Specifically, during Cooper-Schut's four-month employment with Visteon, Goins estimates observing 30-40 examples of racially derogatory graffiti spray-painted in bathrooms, on walls, and on equipment. Goins Aff. ¶ 6. Although the depositions of Holm and Jennifer Stewart ("Stewart"), a Labor Relations representative, reveal that they investigated incidents like these in the past, no evidence exists that Cooper-Schut notified either of them of what she heard from Goins. Stewart Dep. pp. 34-36; Holm Dep. 33-36. At some point in Cooper-Schut's employment, Will Taylor ("Taylor"), a Visteon employee, told her that a "competition" existed among employees to see who was going to "get with" [have sex with] Cooper-Schut first. Pl.'s Statement of Add'l Facts ¶ 208.
Visteon challenges this fact as hearsay because Cooper-Schut does not have personal knowledge of KKK activity at the plant. Hearsay, of course, is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). We admit the information contained in Goins' affidavit, not for the truth of the matter asserted, but for its effect on the hearer, Cooper-Schut. See, e.g., U.S. v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988) (admitting statements offered not for the truth of the matter asserted, but to establish that the statement was made or to demonstrate the effect the statement had on the hearer).
Visteon also challenges this fact as hearsay because Cooper-Schut does not have personal knowledge of the "competition." We admit Taylor's statement, again not for the truth of the matter asserted, but for its effect on the hearer, Cooper-Schut.
In late July/early August, after returning from the plant shutdown, Cooper-Schut had a conversation with Douglas Fields ("Fields"), a Caucasian male subordinate, in which he stated, "I don't like women, and women don't like me." Undisputed Material Facts ¶ 144. At about the same time, Cooper-Schut reported to Sasser that she thought hourly employees were sabotaging the machines. Id. ¶ 154. In another conversation, Fields criticized a black, female co-worker's hairstyle, saying it made her look "like a fool." Id. ¶ 147. On August 11, 2000, Cooper-Schut approached Fields and cautioned him to refrain from leaving the department during his shift when maintenance work remained unfinished, but she declined to discipline him at that time. Id. ¶¶ 126-129; Cooper-Schut Dep. p. 115.
On August 15, 2000, Cooper-Schut was injured in an accident in which a tray fell or was thrown from an overhead conveyor by Ted Couch ("Couch"), a maintenance employee who was clearing a jam in the conveyor. Bob Kennedy, a safety engineer, investigated the accident. Id. ¶ 65. At the time, Cooper-Schut told him that the incident was an accident and that Couch did not mean to hurt her. Id. ¶ 66. Although Cooper-Schut requested that Couch not be disciplined, Morrissey counseled him on safe work practices. Id. 67-68. Now, however, after being told by co-workers that Couch later said "that nigger should not have been in the way" in reference to the tray-falling incident, Cooper-Schut believes that Couch threw the tray at her intentionally. Pl.'s Aff. ¶ 19; Pl.'s Statement of Add'l Material Facts ¶ 164.
Defendant challenges this fact as hearsay because Cooper-Schut does not have personal knowledge of Couch's alleged statement. We admit it, however, not for the truth of the matter asserted, but for its effect on the hearer, Cooper-Schut.
In late August-early September, Cooper-Schut had a series of conversations with Stewart regarding problems she was having with insubordinate hourly employees, including Fields and James Augustine ("Augustine"). Undisputed Material Facts ¶ 60. On or about August 22, 2000, Cooper-Schut asked Augustine to provide justification for a recent absence, and he bristled. Id. ¶ 166. Two days later, Augustine again became upset when Cooper-Schut refused to accept a note from his wife as verification for an emergency medical absence. Specifically, Cooper-Schut alleges "that Augustine responded to [her] refusal to accept the note by screaming, kicking, and throwing industrial baskets." Id. ¶ 105. Despite Cooper-Schut's requests to calm down, Augustine did not calm down until asked to do so by Warren. Id. ¶¶ 175-176. Contrary to Cooper-Schut, Warren believed that Augustine should not be disciplined for his outburst; however, Cooper-Schut did not need Warren's approval in order to discipline Augustine. Id. ¶¶ 111-112, 179. Cooper-Schut decided to put Augustine on disciplinary notice and asked Stewart for a copy of Visteon's disciplinary policy and procedures.
Stewart told Cooper-Schut that the recently-negotiated procedures were not yet in print, but that she would get back in touch with Cooper-Schut. Id. ¶¶ 113, 115, 227-228. Although Stewart sent an e-mail follow-up on September 1, 2000, Cooper-Schut claims not to have received it. Def. Ex. 7; Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 117. In discussing Augustine with Stewart, Cooper-Schut did not indicate that she believed Augustine's conduct was based on her race or sex, nor did she report any language or conduct by Augustine that would have suggested to Stewart that racial or sexual animus motivated his conduct. Undisputed Material Facts ¶ 119.
On or about August 31, 2000, right before the Labor Day holiday, Cooper-Schut made her first complaint of harassment to Vincent. Cooper-Schut Dep. p. 172; 175-77. At this meeting, she expressed her discontent with the "slut" comment allegedly made by Warren in May, 2000. Vincent directed Morrissey and Holm to interview other supervisors present at the meeting at which Warren made the "slut" comment. Undisputed Material Facts ¶¶ 101-102. Because all of the individuals interviewed denied that Warren used the word "slut," no disciplinary action was taken. Id. ¶¶ 103-104. In addition, Cooper-Schut complained to Vincent of the insubordination of employees such as Augustine and Fields. Id. ¶ 183. Vincent responded by telling Cooper-Schut "to be Rosa Parks and deal with the situation." Cooper-Schut Dep. p. 166.
Cooper-Schut argues that the first time she met with Vincent was in July, not August, 2000. The evidence indicates, however, that assuming such a meeting between the two did take place in July, Cooper-Schut did not complain to Vincent of work-related problems. Rather, she requested a transfer to the Quality Control Division at the behest of Dave Lowry, a quality control supervisor, who was pleased with the costs she was saving the company. Cooper-Schut Aff. ¶¶ 36-37. Cooper-Schut alleges that she asked Vincent to transfer her to another department on several other occasions. These other transfer requests, however, are not supported by specific facts in the record. They are not, for example, documented in Cooper-Schut's personnel file. A plaintiff's self-serving statements, unsupported by specific concrete facts reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001).
On September 6, 2000, Cooper-Schut reported to Vincent over the phone that she had found taped to the refrigerator in her work area a derogatory caricature of herself with the caption "Please show me how to run my dept. the right way." Cooper-Schut Dep. p. 174; Undisputed Material Facts ¶ 185. To the left of the caricature appears the phrase "Nigger Bitch," and to the right of the caricature appears the phrase "I need help!" Id. ¶ 185. Later that day, Cooper-Schut brought the offensive poster to Vincent and was interviewed by Vincent, Morrissey, and Eric Lavalette, a Labor Relations associate, regarding the incident. Cooper-Schut Dep. pp. 189-93.
The next day, September 7, 2000, Vincent directed Human Resources Manager John Donner and Holm to conduct a complete investigation of the incident. Undisputed Material Facts ¶ 72. He also apprised Cooper-Schut of the investigation and emphasized that Visteon would not tolerate such incidents. Id. ¶¶ 74-75. As part of the investigation, from September 7-12, 2000, Stewart interviewed all hourly employees in Cooper-Schut's department. Id. ¶¶ 76-79. In addition, Cooper-Schut requested that a handwriting analysis be done to discover who wrote the derogatory language on the poster. Id. ¶ 81. On September 12, 2000, Donner engaged a handwriting analyst, Clarke Mercer of Forensic Laboratory, Ltd., who subsequently conducted a handwriting analysis on the poster. Id. ¶¶ 82-83. Cooper-Schut did not follow-up on the status of the investigation before she tendered her resignation, however. Id. ¶ 80.
After obtaining handwriting samples from Cooper-Schut, Augustine, Fields, Blanchard, Charles Masters, and William Taylor, and after interviewing Augustine and Fields, Mercer was unable to reach any definitive conclusions. Undisputed Material Facts ¶¶ 84-85. Because the source of the poster could not be identified conclusively, Visteon did not discipline any of its employees. Id. ¶ 86.
On September 8, 2000, Fields confronted Cooper-Schut about a job assignment she had given him. Undisputed Material Facts ¶¶ 121-122, 192-193. Cooper-Schut asked him to calm down, but he refused. Id. ¶ 195. Later that evening, Cooper-Schut attended a meeting with Fields, Warren, and union representatives to discuss the incident. Id. ¶ 198. During the meeting Fields admitted he lost control. Id. ¶ 205. At the meeting, Fields commented that Cooper-Schut was "shaking [her] head and acting like Sha-nay-nay." Cooper-Schut Dep. p. 93. Although Cooper-Schut did not specifically ask Fields what he meant by "Sha-nay-nay," she interpreted the term to mean "a stereotypical black female who is . . . ignorant and ghetto-typical and black and dumb and probably not somebody that's in good standing." Id. p. 94.
On September 11, 2000, Cooper-Schut met with Stewart to talk about Fields and the possibility of taking disciplinary measures against him. Compl. ¶ 49. Whether Cooper-Schut had another incident with Fields in the evening of September 11, 2000, is unclear. Cooper-Schut tendered her resignation on September 11 or 12, 2000. Cf. Compl. ¶¶ 2, 52 with Cooper-Schut Dep. p. 176.
Following the discovery of the derogatory poster, Vincent reviewed Visteon's harassment policy with Plant management and union leaders, and an effort was made to review it with the entire Plant. Undisputed Material Facts ¶¶ 89-90. In addition, Stewart held follow-up meetings with Augustine, Fields, and Charles Masters, three employees who had problems with Cooper-Schut in the past, during which she reviewed Visteon's harassment policy with them and informed them that Visteon would not tolerate harassment. Id. ¶ 91.
Cooper-Schut filed her charge of discrimination with the Indiana Civil Rights Commission on September 14, 2000. She received her Notice of Right to Sue from the Equal Employment Opportunity Commission on March 26, 2001. Cooper-Schut filed a complaint in this court alleging harassment and discrimination on the basis of race and gender in violation of Title VII and pay discrepancies in violation of the Equal Pay Act on June 22, 2001.
Legal Analysis Summary Judgment Standard
On a motion for summary judgment, the burden rests on the moving party, Visteon in this case, to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the nonmovant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the nonmovant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920. A plaintiff's self-serving statements, unsupported by specific concrete facts reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
Hostile Environment
Title VII prohibits employers from discriminating against employees on the basis of their gender or race. Its prohibitions include creating, condoning, or tolerating a hostile work environment. See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 692 (7th Cir. 2001) (stating that the determination of whether an environment is "hostile" for the purposes of Title VII "turns on whether the alleged harassment occurred because of the sex [or the race] of the complainant"). A "hostile" work environment is one that is "permeated with `discriminatory intimidation, ridicule, and insult,' and that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Shanoff v. Ill. Dept. of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001) (internal citations omitted).
Proof of hostile environment is two-pronged. In order to prevail, a plaintiff must present evidence sufficient to raise a reasonable inference that she subjectively experienced the environment to be abusive; she must also show, objectively, that a reasonable person in her position would have perceived it to be hostile. Haugerud, 259 F.3d at 693. Because Cooper-Schut complained to Labor Relations and filed this lawsuit, we assume that she subjectively experienced the environment to be abusive.
To determine whether the work environment is objectively hostile, we consider all of the circumstances, including "the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee's work performance." Haugerud, 259 F.3d at 693; Hamilton v. RDI/Caesars Riverboat Casino LLC, 179 F. Supp.2d 929, 937 (S.D.Ind. 2002) (Barker, J.). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Haugerud, 259 F.3d at 693 (piecing together several quotations). Moreover, "`relatively isolated' instances of non-severe misconduct will not support a hostile environment claim." Saxton v. ATT Co., 10 F.3d 526, 532 (7th Cir. 1993), citing Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993).
The Seventh Circuit has recognized that
[d]rawing the line [between vulgar behavior and sexually harassing behavior] is not always easy. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.
Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995); see also Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045-46 (7th Cir. 2002) (applying the analysis of sexual harassment to racial harassment). We address Cooper-Schut's allegations of sexual harassment and racial harassment in turn.
Cooper-Schut catalogues the following instances of sexual harassment: (1) Warren's comment that Cooper-Schut's name rhymes with slut, (2) Warren's comment that "black women take men to the cleaners," (3) the competition to "get with" Cooper-Schut, (4) Fields' statement that he doesn't like women and they don't like him, (5) Fields' calling Cooper-Schut a "Sha-nay-nay," (6) Fields' criticism of another black female's hairstyle, saying it made her "look like a fool," and (7) the "Nigger Bitch" poster. In addition, Cooper-Schut alleges various instances of intimidating workplace conduct, which she maintains occurred because she was a black female, including Bonwell's reprimand and Augustine's and Fields' acts of insubordination.
First, we note that Cooper-Schut has failed to provide sufficient evidence from which a jury may reasonably conclude that Bonwell's public reprimand of Cooper-Schut and Augustine's acts of insubordination were motivated by gender hostility rather than simple personal animus or frustration over work-related problems. Although Cooper-Schut argues that she never saw Bonwell reprimand a male supervisor in the public manner in which he reprimanded her, she does not provide any evidence that his reprimand of her was not an isolated incident stemming from his frustration with a work error she had made. For example, Cooper-Schut does not offer any statements he made before, during, or after the reprimand that would indicate that Bonwell singled her out because of her sex. Similarly, with regard to Augustine's acts of insubordination, we find that Cooper-Schut has not presented sufficient evidence from which a jury may reasonably conclude that Augustine disobeyed her orders because she was female. Sufficient evidence exists that Augustine thought Cooper-Schut was a "hard ass," and that he acted out his frustration with her job demands by kicking and throwing items in his work area. Without more, however, we cannot consider these as gendered insults. See Cooper-Schut Dep. pp. 129-130; 138.
In contrast, though each of Fields' acts of insubordination and alleged intimidation may have occurred in response to work-related directives from Cooper-Schut, in light of Fields' gender-critical comments, we decline to find, as a matter of law, that Fields did not act "because of" sex.
We conclude that none of the remaining incidents of alleged gender harassment are so severe or pervasive as to create a hostile work environment. In reaching this conclusion, we take our cue from the Seventh Circuit, which has affirmed summary judgment in many cases involving far more egregious conduct than that about which Cooper-Schut complains. For example, we note that, with the exception of the n-word, which we discuss more fully below, no Visteon employee ever said anything to or about Cooper-Schut "that could not be repeated on primetime television." See Baskerville, 50 F.3d at 431. Nor did any employee ever touch Cooper-Schut. See, e.g., Adusumilli v. City of Chicago, 164 F.3d 353, 361-362 (7th Cir. 1998), cert. denied, 528 U.S. 988 (1999) (ambiguous comments about bananas, rubber bands, and low-neck tops, touchings, including a poke to plaintiff's buttocks); Saxton, 10 F.3d at 533-34 (inappropriate remarks and impermissible touching); Weiss, 990 F.2d at 337 ("dumb blond" comment, unwanted touchings, and attempts to kiss).
In addition, with regard to the two incidents in which Fields allegedly intimidated Cooper-Schut by screaming in her face, we refer to Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340 (7th Cir. 1999), in which the Seventh Circuit concluded that "allowing a door to close in [plaintiff's] face, startling her by approaching her from behind in an electric cart without warning, cutting her off in the parking lot, and [a co-worker's] persistent cursing and use of abusive language" did not constitute sexual harassment. Id. at 345. In sum, "low-level harassment," though unwelcome, is not actionable. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1144 (7th Cir. 1997). Accordingly, we GRANT Visteon's motion for summary judgment with respect to Cooper-Schut's sexual harassment claim.
Turning to Cooper-Schut's allegations of racial harassment, she complains of the following incidents: (1) Warren's comment that "black women take men to the cleaners," (2) Fields' calling Cooper-Schut a "Sha-nay-nay," (3) Fields' criticism of another black female's hairstyle, saying it made her "look like a fool," (4) the "Nigger Bitch" poster, (5) the racially derogatory graffiti, and (6) Couch's throwing an industrial tray from a conveyor belt at Cooper-Schut, saying that "that nigger should not have been in the way." Although Cooper-Schut cites fewer instances of alleged racial harassment than she does of sexual harassment, we find that she has raised a genuine issue of material fact as to whether her co-workers' use of the n-word, coupled with the other less severe incidents, was sufficiently severe or pervasive so as to create an abusive working environment.
While no "magic number" of slurs indicates a hostile work environment, the Seventh Circuit has recognized that an unambiguously racial epithet falls on the "more severe" end of the spectrum. Cerros, 288 F.3d at 1047. A sufficiently severe episode may occur as rarely as once and still violate Title VII. See Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999). Although no employee ever physically threatened Cooper-Schut, no such threat is necessary to establish a hostile environment. Cerros, 288 F.3d at 1047. In addition, Visteon attempts to distinguish Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993), because no evidence in this case indicates that a supervisor ever used the n-word. Id. at 675 ("Perhaps no single act can more quickly `alter the conditions of employment and create an abusive working environment' than the use of an unambiguously racial epithet such as `nigger' by a supervisor in the presence of his subordinates."). However, because "the use of the word `nigger' automatically separates the person addressed from every non-black person," and because Cooper-Schut has presented other evidence of racial animus, name-calling and graffiti, we conclude that a genuine issue of material fact remains as to Cooper-Schut's racial harassment claim. See Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D.Ill. 1984).
Employer Liability for Hostile Environment
Although we find that a genuine issue of fact remains as to Cooper-Schut's racial harassment claim, in order to hold Visteon responsible, Cooper-Schut must demonstrate a basis for employer liability. Analysis of employer liability for hostile environment harassment depends upon whether the harassment was committed by a supervisor or by a co-worker and whether or not the harassment culminated in a tangible employment action. Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
In this case, Cooper-Schut argues that Bonwell and Warren qualify as a Title VII supervisors because they: (1) possessed the authority to direct her work operations (i.e., set her production schedules) and (2) trained her. These attributes are not enough, however, to bring Bonwell and Warren within the definition of a Title VII supervisor. That an employer authorizes an employee to oversee aspects of another employee's job performance does not establish a Title VII supervisory relationship. An individual is not a supervisor unless he possesses the authority to directly affect the terms and conditions of a victim's employment, i.e., the authority to "hire, fire, demote, promote, transfer, or discipline." See, e.g., Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002), Haugerud v. Amery School Dist., 259 F.3d 678, 696-97 (7th Cir. 2001) (employer may only be held vicariously liable for the acts of those who can be considered the employer's proxy-an individual holding a sufficiently high position in the management hierarchy of the company).
Where, as here, the alleged harassment was committed by co-employees and (as we discuss momentarily) the alleged harassment did not eventuate in an adverse employment action, the employer is not subject to strict liability. Rather, Cooper-Schut must show that Visteon was negligent in order to hold it liable for co-worker harassment. Adusumilli, 164 F.3d at 361. In other words, Visteon is liable where it knew or should have known of the harassment and failed to take prompt remedial action. Savino v. C.P. Hall Co., 199 F.3d 925, 933-34 (7th Cir. 1999).
In cases of co-worker harassment, "an employer's legal duty . . . will be discharged if it takes reasonable steps to discover and rectify acts of sexual [or racial] harassment by its employees." Parkins v. Civil Constr. of Ill., Inc., 163 F.3d 1027, 1035 (7th Cir. 1998) (internal citations omitted). Visteon maintains that it responded promptly and reasonably to all of Cooper-Schut's complaints of sexually and racially offensive language and conduct, and therefore, that its liability should be discharged.
Because Visteon cannot be liable for harassment unless it had notice of the harassment, Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1014 (7th Cir. 1997), the first step in the analysis of employer liability is to determine whether Visteon had designated a channel for reporting complaints of harassment. Parkins, 163 F.3d at 1035. Ultimately, the employee must present evidence that she "`gave the employer enough information to make a reasonable employer think there was some probability that she was being sexually [or racially] harassed.'" Parkins, 163 F.3d at 1035, quoting Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1017, 1019 (7th Cir. 1996). Once the employer has notice that harassment has occurred, the law requires that it respond in a manner that is reasonably likely to prevent future harassment. See Parkins, 163 F.3d at 1036; Saxton, 10 F.3d at 536. Whether the employer's response is reasonable depends upon "the gravity of the harassment." Baskerville, 50 F.3d at 432; see also Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966, 983-84 (S.D.Ind. 1999) (Barker, J.).
In this case, at all times during Cooper-Schut's employment, Visteon maintained a "Zero-Tolerance of Harassment" policy, and harassment training was provided to all salaried personnel. Posted at the plant was a notice designating Holm as the Equal Employment Opportunity Coordinator. Although Cooper-Schut did not complain to Holm directly about any specific incident or her concerns generally, she would have given Visteon adequate notice of her complaints if she notified agents of the employer with authority to address her problems. Parkins, 163 F.3d at 1037.
On or about August 15, 2000, after Cooper-Schut was injured by an industrial tray-which either fell or was thrown from an overhead conveyor by Couch-a safety engineer investigated the accident. At the time, Cooper-Schut told the safety engineer that the incident was an accident and that Couch did not mean to hurt her. Although Cooper-Schut requested that Couch not be disciplined, Morrissey counseled him on safe work practices. We find that Visteon's response was both timely and reasonably likely to prevent the conduct from recurring. See Saxton, 10 F.3d at 535 (concluding that employer's response was reasonable where employer's agent began an investigation the day after being advised of plaintiff's complaint, completed a detailed report two weeks later, and completed remedial action, transfer in this case, within five weeks).
Cooper-Schut claims that another tray "was thrown" at her upon her return to work; however, she does not know who threw the tray or how it reached her. Def.'s Resp. to Pl.'s Statement of Add'l Material Facts ¶ 137. Visteon urges us to disregard this claim as speculation. Because Cooper-Schut's claim is not based on personal knowledge, we do not consider it. Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995) (stating that "speculation does not create a genuine issue of fact").
"Right before Labor Day" Cooper-Schut complained to Vincent that Warren rhymed "slut" with her last name and that Augustine and Fields were insubordinate to her. Vincent immediately directed Morrissey and Holm to interview other supervisors present at the meeting at which Warren made the "slut" comment. Because all of the individuals interviewed denied that Warren used the word "slut," no disciplinary action was taken. Vincent responded to Cooper-Schut's complaints of insubordination by telling her "to be Rosa Parks and deal with the situation." We note that Cooper-Schut could have initiated discipline procedures against Augustine and Fields herself; she did not need the permission of Vincent or anyone else. Again, we find that Visteon acted appropriately: first, in conducting an immediate, thorough investigation of the alleged "slut" comment, and second, in encouraging Cooper-Schut to undertake her own self-help where possible. See Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1014 (7th Cir. 1997) (finding the employer's inconclusive investigation to be reasonable where the alleged harasser "predictably claimed to have done nothing wrong" and where the only witness "claimed he saw nothing at all," and stating that the employer "surely found it difficult to investigate" the alleged incidents with little or no corroboration provided by plaintiff).
In addition, in late August or early September 2000, Cooper-Schut complained to Stewart of Augustine's August 2000 outbursts. However, in discussing Augustine with Stewart, Cooper-Schut did not indicate that she believed Augustine's conduct was based on her race or sex, nor did she report any language or conduct by Augustine that would have suggested to Stewart that racial or sexual animus motivated his conduct. Therefore, although Visteon had notice of Augustine's insubordinate behavior, it did not have adequate notice that Cooper-Schut considered it to be harassment in need of investigation. See Zimmerman, 96 F.3d at 1019.
The day after Cooper-Schut reported finding the "Nigger Bitch" poster, Vincent directed Donner and Holm to conduct a complete investigation of the incident. He also apprised Cooper-Schut of the investigation and emphasized that Visteon would not tolerate such incidents. As part of the investigation, Stewart interviewed all hourly employees in Cooper-Schut's department, and at Cooper-Schut's request, Visteon engaged a handwriting analyst to determine who might have drawn or written the offensive poster. In addition, Vincent reviewed Visteon's harassment policy with Plant management and union leaders, and an effort was made to review it with the entire Plant. Stewart also held follow-up meetings with Augustine, Fields, and Charles Masters, three employees who had problems with Cooper-Schut in the past, during which she reviewed Visteon's harassment policy with them and informed them that Visteon would not tolerate harassment.
Despite the fact that Visteon was unable to ascertain definitively the source of the poster and therefore did not discipline any of its employees, we find that Visteon acted reasonably under the circumstances. In general, an employer fails to act reasonably when it unduly delays taking remedial action, or when the action it does take is not reasonably likely to prevent continued harassment. McKenzie v. Ill. Dept. of Transp., 92 F.3d 473, 480 (7th Cir. 1996). Here, however, Visteon conducted an immediate, thorough investigation of the incident and reviewed its harassment policy with its employees in order to prevent future incidents. In making a reasonableness assessment, we do not focus "solely upon whether the remedial activity ultimately succeeded [in uncovering the harasser or stopping the harassment], but instead [we] determine whether the employer's total response was reasonable under the circumstances as then existed." Id.
Finally, Cooper-Schut argues that she complained to her supervisor, Sasser, and her group leader, Warren, of Augustine's and Fields' insubordination. On the evening of September 8, 2000, after an incident with Fields, Cooper-Schut attended a meeting with Fields, Warren, and union representatives to discuss the incident. Fields admitted that he had lost control. In Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044 (7th Cir. 2000), the Seventh Circuit found that an employer took prompt and effective remedial action to prevent alleged racial harassment of one employee by a co-employee where it, among other things, began investigating on the day of the incident and commanded the harasser to apologize. Although Cooper-Schut quit before the Fields' incident was fully resolved, we conclude that Visteon's response to Cooper-Schut's complaints was reasonable under the circumstances. Id. 1048-49.
We note, too, that Cooper-Schut never notified anyone of the following incidents, which she now considers evidence of sexual or racial harassment: 1) Bonwell's public reprimand, 2) Goins' reports of KKK activity at the Connersville plant, and 3) the alleged competition to "get with" Cooper-Schut.
In sum, we are of the view that Visteon responded promptly with remedial action reasonably calculated to end its employees' harassment of Cooper-Schut. Accordingly, we GRANT Visteon's motion for summary judgment with respect to Cooper-Schut's claims of harassment based on race and sex.
Discrimination on the Basis of Sex and Race
Under Title VII, it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Cooper-Schut may establish a violation of Title VII by presenting evidence of discriminatory intent, whether it be direct or circumstantial, or by proceeding under the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973). Either way, however, she must prove that her "terms, conditions, or privileges of employment" were affected, i.e., that she suffered a materially adverse employment action. Haugerud, 259 F.3d at 691. Cooper-Schut argues that the harassment she allegedly suffered was so severe that her resignation amounted to a constructive discharge. Visteon, however, contends that Cooper-Schut's allegations that it was non-responsive to her complaints of insubordination do not demonstrate that she suffered a materially adverse employment action.
To establish a prima facie case of race or sex discrimination under McDonnell Douglas, Cooper-Schut must establish: (1) that she was a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she experienced an adverse employment action; and (4) that similarly situated individuals were treated more favorably. Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).
The Seventh Circuit's broad definition of "adverse employment action" encompasses constructive discharge. See Stutler v. Ill. Dept. of Corrections, 263 F.3d 698, 703-4 (7th Cir. 2001) ("[N]ot everything that makes an employee unhappy is an actionable adverse action. . . . To be actionable, there must be a `significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'"). To establish a claim of constructive discharge, a plaintiff must present evidence sufficient to raise an inference that her working conditions became so intolerable that a reasonable person under similar circumstances would have felt compelled to resign. The reason for the resignation must, of course, be that the employer's misconduct was in violation of a Title VII protected criterion, race or sex in this case. Grube v. Lau Indus., Inc., 257 F.3d 723, 727 (7th Cir. 2001), Tutman, 209 F.3d at 1050; Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998).
Where, as here, the constructive discharge arises from an alleged hostile environment, the Seventh Circuit requires a showing of "aggravated" circumstances, factors that go beyond the underlying harassment. Hertzberg v. SRAM Corp., 261 F.3d 651, 657-58 (7th Cir. 2001); Rodgers, 12 F.3d at 677. In addition, absent extraordinary conditions, "a complaining employee is expected to remain on the job while seeking redress." Grube, 257 F.3d at 728. The Seventh Circuit agreed with the proposition that "[a]n employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged." Id. quoting Yearous v. Niobrara County Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997); see also E.E.O.C. v. Preferred Mgmt. Corp., 216 F. Supp.2d 763, 841-42 (S.D.Ind. 2002) (Barker, J.).
We find that Cooper-Schut has neither presented "aggravated" circumstances nor demonstrated why she could not have stayed on the job while seeking redress. First, as explained above, we found that the instances of sexual harassment alleged by Cooper-Schut were not so severe and pervasive as to be actionable. If they are not actionable, then they cannot be "aggravated." With regard to the racial harassment alleged by Cooper-Schut and described above, we note that Visteon was aware of Cooper-Schut's complaints and in the midst of conducting a full and timely investigation into the "Nigger Bitch" poster and related incidents when Cooper-Schut resigned. Because Cooper-Schut quit approximately one week after the "Nigger Bitch" poster was found, and because she did not check the status of Visteon's investigation before she left, we conclude that Cooper-Schut did not give Visteon a reasonable chance to resolve her problems. See Saxton, 10 F.3d at 535 (concluding that employer's response was reasonable where employer's agent began an investigation the day after being advised of plaintiff's complaint and completed a detailed report two weeks later); contrast Preferred Mgmt. Corp., 216 F. Supp.2d at 842 (finding "aggravated" circumstances where defendant was "oblivious" to plaintiff's complaints). Cooper-Schut also maintains that the fact that her superiors on the plant floor-Warren and Sasser-did not support her efforts to stop the harassment "aggravated" the harassment. Although Cooper-Schut's situation was likely unpleasant, it does not constitute a constructive discharge in the Seventh Circuit. See, e.g., Haugerud, 259 F.3d at 691-92 (no finding of adverse employment action where the defendant: (1) tried to force [plaintiff] to give up her custodial position, (2) told the male night custodians not to help the female day custodians, (3) gave her additional responsibilities above what was expected of the male custodians and above that which she should have reasonably have been given, and (4) intentionally interfered with the performance of her work duties).
Cooper-Schut has not demonstrated that "the only way [she] could extricate herself from the intolerable conditions" was to resign. Gawley v. Ind. Univ., 276 F.3d 301, 315 (7th Cir. 2001). Rather, we find that even if Visteon's disciplinary procedures were unclear as they were being negotiated, Cooper-Schut was not persistent in her attempts to make use of them. She did not, for example, follow through with disciplinary action against Fields for the September 8 incident before she quit on September 11 or 12. Accordingly, we conclude that Cooper-Schut was not constructively discharged and that she did not suffer an adverse employment action. As such, we GRANT Visteon's motion for summary judgment on Cooper-Schut's race and sex discrimination claims.
Claim Under Equal Pay Act
The Equal Pay Act ("EPA") prohibits employers from paying workers of one sex less than workers of the opposite sex for equal work done on jobs that require equal skill, effort, and responsibility and that are performed under similar working conditions. 29 U.S.C. § 206(d)(1). Thus, to demonstrate a prima facie case for a violation of the EPA, Cooper-Schut must establish that: (1) higher wages were paid to employees of the opposite sex; (2) the employees did equal work which required equal skill, effort, and responsibility; and (3) that the employees had similar working conditions. Fallon v. State of Ill., 882 F.2d 1206, 1208-09 (7th Cir. 1989). Visteon does not dispute that Cooper-Schut made less money than Blanchard, a male Grade 5 supervisor in the Compressor Department. Rather, it offers an affirmative defense, which it may do to show the pay differential 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) any factor other than sex. Fallon, 882 F.2d at 1211; see also Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 912-13 (7th Cir. 2002). The EPA's fourth affirmative defense "is a broad `catch-all' exception [that] embraces an almost limitless number of factors, so long as they do not involve sex." Dey v. Colt Const. Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994).
Visteon argues that Blanchard was paid more than Cooper-Schut because he had previous experience as a supervisor in an unionized manufacturing facility, experience that Cooper-Schut did not have. In support of its position, Visteon offers the undisputed testimony of Cynthia Holm, who, in her capacity as Salaried Personnel Manager, determined Cooper-Schut's and Blanchard's salaries. She states that two factors explain the discrepancy in Cooper-Schut's and Blanchard's salaries: (1) Blanchard had previous experience supervising unionized employees and mediating disagreements between management and union employees over safety issues, and (2) the independent recruiting agent negotiating Blanchard's and Cooper-Schut's salaries made a minimum salary demand for Blanchard, but not for Cooper-Schut. Holm Aff. ¶¶ 10-13.
Cooper-Schut argues that the "any factor other than sex" exception "swallows the rule" and that a pay disparity based upon prior salary, which results in less pay for women in comparable jobs, does not fall within the "any factor other than sex" exception. For the following reasons, however, we cannot accept this argument. Before coming to work at Visteon, Cooper-Schut had been making $13.00/hour as a production leader. By contrast, Blanchard had been making $54,000/year as a supervisor (approximately twice as much as Cooper-Schut). Although Cooper-Schut's Visteon employment application indicates that she had "maintained" inventory reports, time sheets, and disciplinary reports, it did not show that she had experience supervising unionized employees or mediating their disputes. Whether Visteon should have given Cooper-Schut more credit for her specific skill set and experience is not for us to decide. Wollenburg v. Comtech Manufacturing Co., 201 F.3d 973, 976 (7th Cir. 2000). The Seventh Circuit has cautioned district judges not to "sit as a kind of `super-personnel department' weighing the prudence of employment decisions made by firms charged with employment discrimination." Giannopoulos v. Brach and Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997). In addition, we note that of the six other Group 5 supervisors in the Compressor Department, Cooper-Schut earned more than five of them (all but Blanchard). Skeptical of Cooper-Schut's selective comparison, we find that Visteon based its decision to pay Blanchard more than Cooper-Schut on legitimate reasons other than sex. Accordingly, we GRANT Visteon's motion for summary judgment on Cooper-Schut's Equal Pay Act claim.
Conclusion
For the reasons set forth in detail above, we find that Cooper-Schut has failed to offer evidence from which a reasonable jury could conclude that: (1) the inappropriate comments and conduct in her working environment rose to the level of actionable sexual harassment, (2) the alleged sexual and racial harassment she suffered resulted in a constructive discharge, and (3) Visteon's decision to pay Blanchard more than Cooper-Schut violated the Equal Pay Act. In addition, although Cooper-Schut raised a genuine question of material fact as to the severity of the alleged racial harassment, we find that she failed to proffer legally sufficient evidence to show that Visteon was negligent in its handling of her complaints. Accordingly, Visteon's Motion for Summary Judgment is GRANTED with respect to all claims.