Opinion
Cause No. IP01-1005-C-B/F
March 20, 2003
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is an employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 1981a. Plaintiff Mary Jo Reed alleges that her former employer, The Hunt Corporation (hereafter "Hunt"), tolerated or condoned a hostile work environment based on gender, and then fired her in retaliation for having complained of the sex harassment. The case is before us on Hunt's Motion for Summary Judgment. For the following reasons, we GRANT Hunt's motion.
Reed filed and the parties briefed a Motion to Compel 30(b)(6) Deposition which was really a request for production directed toward two personnel files maintained by Hunt on two other employees. Hunt objected to the discovery request on grounds of untimeliness and irrelevance. Reed's request was made for reasons entirely unrelated to the summary judgment issues; in fact, Reed makes no mention of the outstanding discovery request in responding to Hunt's Motion for Summary Judgment. Accordingly, we DENY the Motion to Compel on grounds of mootness, but our ruling would be the same on the merits.
Factual Background
Plaintiff Mary Jo Reed began her employment with Hunt on July 17, 2000, as Supervisor of Project Accounting. Def.'s Statement of Material Facts ¶ 1. In this position, Reed's immediate supervisor was David Bloomer, Project Accounting Manager. Pl.'s Br. in Opposition to Def.'s Motion for Summ. J. at 1. Bloomer operated out of the same Indianapolis location as Reed. Id.Reed alleges that the following incidents occurred during her time of employment with Hunt: At the company's annual meeting, on September 15, 2000, David Bloomer approached Ms. Reed from behind and placed his hand and a drink glass on an exposed portion of her back. Def.'s Statement of Material Facts ¶ 4. She responded by telling Bloomer not to do that. Pl.'s Statement of Addt'l Material Facts ¶ 77. He replied, "Nice dress," and walked away. Id. ¶ 78. On two or three other occasions, Bloomer looked up her skirt as she sat down in Bloomer's office. Def.'s Statement of Material Facts ¶ 6. Also, on three or four occasions when Reed accidentally kicked Bloomer and apologized, Bloomer said, "I like it when you kick me; kick me harder." Id. ¶ 23. Reed did not say anything in response to these comments. Id. ¶ 24. Reed also alleges that during an employment interview (at which Reed was present) Bloomer asked the applicant if she was married, why a "pretty girl like her" was divorced, and if she had any children. Id. ¶ 29. None of those questions was directed at Reed. Id. ¶ 30. Reed further alleges that Bloomer stared at the applicant's breasts during the interview. Id. ¶ 31.
The week after the annual meeting in September 2000, Bloomer requested that Reed stay after hours to work with him on a manual that Chief Financial Officer Steve Atkins needed the next day. Pl.'s Br. in Supp. of Mot. for Summ. J. at 4. Reed felt uncomfortable with this arrangement, and also had a prior commitment that evening, so she suggested that Bloomer allow her to work on the manual at home that night. Id. Bloomer acceded to Reed's request. Id. During this same time, Reed shared her experiences with two female coworkers, who shared with Reed certain second- and third-hand accounts of other questionable or arguably inappropriate behavior by Bloomer. Pl.'s Br. in Opposition to Def.'s Motion for Summ. J. at 2.
Shortly thereafter, Reed told Hunt's EEO officer, Bill Edwards, about Bloomer's conduct and statements. Pl.'s Statement of Addt'l Material Facts ¶ 101. Edwards testified that his conversation with Reed on this occasion dealt only with travel protocol — never with inappropriate comments, touching, or alleged sexual harassment. Edwards Depo. at 24. Edwards told Reed to contact Ralph Johnston, Bloomer's supervisor, if she was upset with Bloomer. Pl.'s Statement of Addt'l Material Facts ¶ 102. Edwards played no part in the later decision to terminate Reed. Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 20. Reed contacted Johnston on November 16, 2000. Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 17. Johnston testified that in these conversations Reed complained to him only about Bloomer's managerial style — not incidents of sexual or harassing conduct. Johnston Depo. at 58-59.
The week of November 20, 2000, Bloomer asked Reed to stay after work and discuss some projects with him. Pl.'s Statement of Addt'l Material Facts ¶ 86. Following their discussion, Reed stood up to leave and bid Bloomer goodbye, at which time he attempted to embrace Reed. Id. ¶ 87. Reed told Bloomer, "Please, don't," and left his office. Id. ¶ 88. On November 26, 2000, Reed and a female companion went to the Hunt company suite at the RCA Dome during a professional football game, despite having no valid pass to get into the suite. Def.'s Statement of Material Facts ¶ 65.
Early in December 2000, office manager Carol Galbreath noticed two acts by Ms. Reed that caused her to speak with her supervisor, Hunt President, Michael Kerr, about Ms. Reed's failure to "stick to her job duties." Galbreath Aff. ¶¶ 6-8. These acts included compiling some form of an employee list (that Galbreath maintains already existed) and circulating a donation envelope for the Make-a-Wish Foundation. Id. On December 5, 2000, Kerr met with Ms. Reed to discuss these issues, as well as her recent appearance at the company's suite at the RCA Dome. Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 71. Kerr told Ms. Reed at this meeting that "if she were to succeed with the Hunt Group she would not talk to Ralph Johnston and would work directly with Dave Bloomer." Id. Reed called Johnston and told him that she had been instructed to deal directly with Bloomer. Pl.'s Br. in Opposition to Def.'s Motion for Summ. J. at 9.
Following a brief work-related trip to Cincinnati, Reed returned to the Indianapolis office because she heard that Christmas bonuses were issued. Id. at 10. Upon her return, she discovered that no bonus had been issued to her. Id. When she questioned Bloomer about the bonus, he told her it was "under review." Id. The next day, Atkins and Corporate Counsel Jose Pienknagura summoned Reed to a meeting, where they informed her that she was being terminated "because of the working relationship between Bloomer and her." Id. This decision resulted from a telephone conversation in which Johnston had participated. Pl.'s Statement of Addt'l Material Facts ¶ 121.
On December 29, 2000, Reed filed a charge with the Equal Employment Opportunity Commission ("EEOC"), and was subsequently issued a Right to Sue letter. Reed filed this lawsuit on July 11, 2001, and the present Motion for Summary Judgment followed on May 16, 2002.
Standard of Review
On a motion for summary judgment, the burden rests on the moving party 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).
Analysis
1. Sex harassment claim
Title VII prohibits employers from discriminating against employees on the basis of their gender. Its prohibitions include creating, condoning, or tolerating a hostile work environment. A "hostile" work environment is one that is "permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Shanoff v. Illinois Dept. of Human Services, 258 F.3d 696, 704 (7th Cir. 2001) (internal citations omitted); Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998), cert. denied, 528 U.S. 988 (1999).
Hunt moves for summary judgment on the ground that Reed cannot offer sufficient proof to establish that she was subjected to a hostile work environment. Proof of hostile environment is two pronged. In order to prevail, Reed 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 also would have perceived it to be hostile. Haugerud v. Amery School Dist., 259 F.3d 678, 693 (7th Cir. 2001); Adusumilli, 164 F.3d at 361. We credit Reed's subjective claims that she experienced an abusive environment at her workplace and move to address her contention of objective hostility. In order 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. "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. (piecing together several quotations). Moreover, "`relatively isolated' instances of non-severe misconduct will not support a hostile environment claim." Saxton, 10 F.3d at 532, 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 not 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).
Here, Ms. Reed's hostile environment claim rests on the following allegations: 1) that Bloomer touched her bare back with his hand and a water glass; 2) that on two or three occasions he attempted to look up her skirt; 3) that on three or four occasions when she accidentally bumped into his leg, he would make a comment such as "kick me harder," or "I like it hard;" 4) that in an interview at which Reed was present, Bloomer asked a female job candidate inappropriate questions regarding her marital status and "why a pretty girl like you" was divorced; and 5) that Bloomer once attempted to hug Reed.
Since Ms. Reed allegedly complained to her superiors about this conduct and filed an EEOC complaint, we will assume that she subjectively perceived these incidents to be abusive and hostile. Objectively, however, we must conclude that the incidents are not 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 Reed complains. In Baskerville v. Culligan International Co., 50 F.3d 428, 431 (7th Cir. 1995), for example, the court overturned a verdict in favor of the plaintiff noting that the defendant "never said anything to her that could not be repeated on primetime television" and found as a matter of law that the "handful of comments" alleged to have occurred did not give rise to liability under Title VII. See also Adusumilli v. City of Chicago, 164 F.3d 353, 361-362 (7th Cir. 1998), cert. denied, 528 U.S. 988 (1999) (touchings, including a poke to plaintiff's buttocks); Saxton v. ATT Communications, Inc., 10 F.3d 526, 533-34 (7th Cir. 1993) (inappropriate remarks and impermissible touching); Weiss, 990 F.2d at 337 (unwanted touchings and attempts to kiss). In sum, "low-level harassment," though often unwelcome, is not actionable. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1144 (7th Cir. 1997).
The incidents forming the basis of Ms. Reed's complaint consist of inappropriate but minor physical contact, a smattering of comments, and some perceived inappropriate glances. We acknowledge, as Ms. Reed maintains, that remarks by other female employees about Bloomer's inappropriateness and possibly harassing activities may have "served to strengthen plaintiff's subjective perception that her environment was offensive and hostile or abusive," Pl.'s Surreply to Def.'s Motion for Summ. J. at 3. Nonetheless, the conduct by Bloomer about which Ms. Reed complains, though admittedly offensive and inappropriate in the workplace, is not sufficiently severe or pervasive to alter the terms of conditions of her employment. Thus, because the conduct of which she complains did not rise to the level of actionable hostile environment sexual harassment, we GRANT Defendant's motion for summary judgment with respect to this claim.
Hunt objects to this evidence as inadmissible hearsay. Reed maintains that the existence of these rumors is not being offered to prove the truth of the matter asserted — that Bloomer sexually harassed any other Hunt employees — but to establish Reed's mental state in order to prove that she subjectively perceived her working environment as hostile or abusive. Offered for this purpose, the statements are not inadmissible hearsay and so we may properly consider them along with other evidence offered by Reed in support of her claim. In any event, as explained above, these statements do not affect the primary deficiency in Reed's case relating to this issue.
There are passing references in Reed's filings to a quid pro quo claim for alleged negative employment actions suffered as a consequence of having rebuffed Bloomer's advances. Although arguments regarding this claim have been raised by the parties in their Reply and Surreply on the Motion for Summary Judgment, the briefs and the Statements of Material Facts submitted with regard to this motion do not squarely address the evidentiary support for a quid pro quo claim. For this reason, we withhold consideration of whether summary judgment is appropriate on any colorable quid pro quo claim and invite the parties to reframe or supplement their briefing and designations of evidence so as to address such a claim. Plaintiff's counsel should state in writing to opposing counsel within 10 days from the date of this Order whether Plaintiff is asserting a quid pro quo claim. If the answer is yes, Defense counsel should supplement its summary judgment motion within 21 days, if Defendant is challenging the claim's legal sufficiency or viability.
2. Retaliation claim
Reed alleges that she was fired in retaliation for complaining of sex harassment by her supervisor. Title VII prohibits an employer from retaliating against an employee who has "opposed any practice made an unlawful employment practice by this subchapter or . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing" under the statute. 42 U.S.C. § 2000e-3(a). In order to survive summary judgment on her retaliation claim, Reed must present evidence sufficient to raise a reasonable inference that: (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) there is a causal relationship between the protected expression and the adverse action. Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 755 (7th Cir. 2000); Alexander v. Gerhardt Enterp. Inc., 40 F.3d 187, 195 (7th Cir. 1994).
The Seventh Circuit recently clarified the two routes a plaintiff may travel to obtain or prevent summary judgment on a retaliation claim:
One [way] is to present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity . . . and as a result suffered the adverse employment action of which he complains. If the evidence is uncontradicted, the plaintiff is entitled to summary judgment. If it is contradicted, the case must be tried unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had no retaliatory motive; in that event the defendant is entitled to summary judgment because he has shown that the plaintiff wasn't harmed by retaliation. . . .
. . . The second route to summary judgment . . . requires the plaintiff to show that after filing the charge only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Otherwise there must be a trial.
Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002) (emphasis added), cert denied, 123 S.Ct. 79 (2002). The second route, better known as a modified version of the McDonnell Douglas method, is the proper approach in cases where, as here, "the plaintiff . . . has no actual evidence of discrimination (or retaliation) but just some suspicious circumstances." Stone, 281 F.3d at 643.
Hunt argues that Reed has failed to designate evidence in support of all the prima facie elements required under the McDonnell-Douglas approach. Our review of the filings in this matter leaves us in agreement with Hunt's assertion. Assuming that Reed could establish that she was performing her job satisfactorily at the time of her termination (though, we note, she has offered little if any legally sufficient evidence to prove), she nonetheless simply has not proffered any evidence contrasting her treatment with that afforded to any similarly situated employee who did not complain of harassment. The Complaint does not contain even a general assertion regarding the manner in which Hunt treated any similarly situated employee who did not complain of harassment. Reed does not respond to this argument in the Surreply brief. "When plaintiffs proceeding under the burden-shifting formula of McDonnell Douglas cannot produce competent evidence that they were treated differently than similarly situated employees," summary judgment is proper. Rogers v. City of Chicago, 320 F.3d 748, — (7th Cir. 2003), citing Grayson, 308 F.3d at 819; Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 614-15 (7th Cir. 2001). Accordingly, because Reed has failed to offer evidence on this essential element of her retaliation claim, Hunt's Motion for Summary Judgment as to this claim is GRANTED.
Conclusion
For the reasons set forth in detail above, we find that 1) Reed has failed to offer evidence from which a reasonable jury could conclude that inappropriate comments and conduct in her working environment rose to the level of actionable sexual harassment, and 2) Reed has failed to proffer legally sufficient evidence on certain essential elements of her retaliation claim. Accordingly, Hunt's Motion for Summary Judgment is GRANTED with respect to the two claims. We have reserved a ruling on any quid pro quo claim pending further briefing.