Frazier, Romelia H. v. Delco Electronics ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2710
Romelia Hazel Frazier,
Plaintiff-Appellant,
v.
Delco Electronics Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-690--J.P. Stadtmueller, Chief Judge.
Argued October 26, 2000--Decided August 24, 2001
Before Bauer, Posner, and Ripple, Circuit
Judges.
Posner, Circuit Judge. The plaintiff
brought suit against her employer,
charging sexual harassment in violation
of Title VII of the Civil Rights Act of
1964 and a failure to accommodate a
disability in violation of the Americans
with Disabilities Act. The district court
granted summary judgment for the
defendant. So far as the charge of sexual
harassment is concerned, the court held
that the plaintiff could not use the
doctrine of continuing violation to avoid
the 300-day administrative statute of
limitations applicable to Title VII suits
in Wisconsin and that in any event she
had failed to show that the alleged
harassment was based on her sex.
Taken as favorably to the plaintiff as
the record permits, the facts tell the
following story. Late in 1991 the
plaintiff’s car was stolen, and from then
till she got a new car in February of the
following year she rode to work with
another worker in Delco’s Milwaukee
plant, Bester Spears. He lived near her
and had just been divorced by his wife,
who by a curious coincidence had the same
first name as the plaintiff (the
plaintiff uses Hazel, her middle name, as
her first name) and the same date of
birth. These coincidences seem to have
fascinated Spears, who after he stopped
driving Frazier to work would frequently
drive past her home and sometimes park in
front of it and watch her. After some
weeks or months of this, he approached
her at work and told her he had seen her
husband barbecuing in his backyard. She
told him to stay away from her. He was
angered by her rebuff and took to calling
her "bitch" when he encountered her in
the workplace. In November 1992 came the
explosion. Spears approached Frazier as
she was talking to a coworker, and to
avoid being brushed by him she stepped
back. This set him off. He started
screaming at her, saying he was "sick and
tired of her goddamn ass." He screamed
that she was a "slut," a "motherfucker,"
a "whore," and a "motherfucking whore."
When she asked him whether he was talking
to her, he replied, "Yes, you fucking
whore, I’m talking to you, you
motherfucker. I’m sick and tired of your
motherfucking ass. You goddamn bitch, you
slut, walking by me like I’m dirt." He
threatened to take her outside and "kick
her motherfucking ass" and kill her. He
acted as if he were going to hit her. A
male coworker grabbed him and pushed him
out of the area. The coworker then
escorted Frazier to the nurse’s office,
while Spears shouted at her to "go
outside to settle the matter."
Frazier complained immediately to her
supervisor. A union representative,
Alston, interviewed Spears, who admitted
that he had called Frazier names,
explaining that she had stopped talking
to him in the last couple of months.
Alston thought that Spears looked as if
he were about to explode with anger.
In the following weeks and months,
Spears did not speak to Frazier, but he
glared at her ominously. Although he
worked at the opposite end of a large
plant, he haunted her end of it, staring
through the window of her work area and
sometimes pushing the door open and
sticking his head in and staring at her.
She complained continuously both to
management and to the union. In March of
1993, Alston, the union representative
handling the matter, told her not to file
a formal grievance because he was working
with management to resolve the problem.
The following month Alston met with
management and after the meeting told
Frazier that Spears had been instructed
to stay away from Frazier’s work area and
refrain from the actions she had
complained about. Four days later,
Frazier obtained a temporary restraining
order, and the following month an
injunction, forbidding Spears to have any
contact with her for one year.
In June, Spears was transferred to a
Delco plant in the Milwaukee suburbs and
Frazier breathed a sigh of relief. Not
for long; for in August she was
transferred to the same plant. She told
her union representative at this plant
about the injunction and for a time was
able to avoid Spears. But beginning in
September of 1993 Spears began appearing
unexpectedly three or four times a day in
Frazier’s work area. He would glare at
her, as before, sometimes sticking his
head inside the door to the area and
making faces at her. Once, in December,
he jumped in front of a forklift that she
was driving, forcing her to stop
abruptly. He stood laughing and making
faces at her. She called the police, and
an officer came to the plant and told
Spears to keep away from her.
The next month Spears was transferred to
a different shift and again Frazier
thought she was free of him. But he
returned to her shift in March.
Throughout all this the company had not
disciplined Spears, and now it told
Frazier that it would do nothing to
prevent him from contacting her at work.
This was the last straw. Frazier had a
nervous breakdown and was on sick leave
for almost two years, not returning until
Spears moved to Louisiana.
It was in March of 1994 that she filed
her complaint with the EEOC, and this
means that the statute of limitations,
unless tolled, barred her from
complaining about Title VII violations
that occurred before May of 1993. The
worst incident had occurred months
earlier, in November 1992, when Spears
had screamed at her, menaced her, and
threatened to kill her; and the defendant
argues that she should have filed her
complaint within 300 days of that, since
she argues that the company, though on
notice that she was being harassed, never
did anything to stop it.
This might be correct if the defendant
were Spears rather than the company, and
the charge was assault or threat. But a
violation of Title VII that is based on a
claim of harassment by a coworker doesn’t
occur until the employer has failed to
take reasonable steps to bring the
harassment to an end. E.g., Hostetler v.
Quality Dining, Inc., 218 F.3d 798, 809
(7th Cir. 2000); Smith v. Sheahan, 189
F.3d 529, 533 (7th Cir. 1999); Star v.
West, 237 F.3d 1036, 1038 (9th Cir.
2001); Breda v. Wolf Camera & Video, 222
F.3d 886, 889 (11th Cir. 2000). Obviously
that did not occur in November 1992. The
company could not be expected to rectify
a situation within minutes of its
occurrence. It wanted time to investigate
the matter in order to protect Spears’s
rights. It was entitled to take some time
and until that time passed its failure to
act would not be actionable and so the
statute of limitations would not begin to
run. Delaware State College v. Ricks, 449
U.S. 250, 257, 259 (1980); Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 449 (7th
Cir. 1990). This is a principle more fun
damental than the doctrine of continuing
violation, which in a sexual harassment
case permits the plaintiff to delay suit
until an ambiguous situation of possible
but uncertain harassment has ripened into
an unmistakable case, a case that any
reasonable person would recognize as
harassment. Russell v. Board of Trustees,
243 F.3d 336, 343 (7th Cir. 2001); DeClue
v. Central Illinois Light Co., 223 F.3d
435, 435 (7th Cir. 2000); Galloway v.
General Motors Service Parts Operations,
78 F.3d 1164, 1166 (7th Cir. 1996);
O’Rourke v. City of Providence, 235 F.3d
713, 732 (1st Cir. 2001); Rush v. Scott
Specialty Gases, Inc., 113 F.3d 476, 481-
83 (3d Cir. 1997). When that happens the
victim must move promptly to alert
theemployer and the employer must move
promptly to investigate and resolve the
situation; but only when it becomes clear
that the employer has failed to resolve
it in a timely fashion does the statute
of limitations begin to run. Garrison v.
Burke, 165 F.3d 565, 570 (7th Cir. 1999);
Galloway v. General Motors Service Parts
Operations, supra, 78 F.3d at 1166;
Saxton v. American Tel. & Tel. Co., 10
F.3d 526, 532 n. 11 (7th Cir. 1993). The
company cannot plead for time to rectify
a situation of harassment, the plea we
accepted in Zimmerman v. Cook County
Sheriff’s Dept., 96 F.3d 1017, 1019 (7th
Cir. 1996), but deny the time to the
victim of the harassment to learn that
the company has failed to rectify it
after all.
When, as may have happened here (whether
it really happened is for a jury to
decide), the victim of harassment is
reasonably induced by the defendant or
others to believe that the situation has
been or is in reasonable course of being
resolved, the statute of limitations is
tolled. It is tolled pursuant either to
the doctrine of equitable estoppel, if
the defendant was responsible for
creating the false impression of achieved
or imminent resolution, e.g., Wheeldon v.
Monon Corp., 946 F.2d 533, 537-38 (7th
Cir. 1991); Cada v. Baxter Healthcare
Corp., supra, 920 F.2d at 450-51; Currier
v. Radio Free Europe/Radio Liberty, Inc.,
159 F.3d 1363, 1368 (D.C. Cir. 1998), or
equitable tolling, if the responsibility
lies elsewhere. E.g., Cada v. Baxter
Healthcare Corp., supra, 920 F.2d at 451;
Donald v. Cook County Sheriff’s Dept., 95
F.3d 548, 561-62 (7th Cir. 1996). Having
complained promptly after the November
blow-up (and we do not understand Delco
to be arguing that she should have
complained earlier), Frazier had every
reason to believe the matter well in
hand. She received further assurance from
Alston, the union representative (who may
well have had greater credibility with
her than management) in March 1993 and
again at the end of April after Alston’s
meeting with management.
Things quieted after that and she had no
reason to believe the harassment was
continuing, especially when Spears was
transferred in June to another plant. It
was not until August that she found
herself again in the same plant with him,
and the harassment restarted the
following month. The critical period, so
far as her tolling argument is concerned,
is between September 1993 and January
1994, since in January Spears went on a
different shift and when he returned, in
March, she finally filed her
administrative complaint. Maybe when the
harassment resumed in September she
should have realized the company wasn’t
going to do anything to restrain Spears.
But this is not so clear that it can be
determined on a motion for summary
judgment. Frazier complained to
supervisory personnel throughout the
September-January period, and rather than
telling her that they would do nothing to
restrain him they gave her the impression
(or so a jury could find) that they were
working on the problem. The creation of a
misleading impression that causes a
plaintiff to delay suing is a
conventional basis of equitable estoppel.
E.g., Currier v. Radio Free Europe/Radio
Liberty, Inc., supra, 159 F.3d at 1368;
Cocke v. Merrill Lynch & Co., 817 F.2d
1559, 1561-62 (11th Cir. 1987) (per
curiam).
But all this is of no moment if the
district court was right that there is no
evidence that Spears’s behavior was
motivated by Frazier’s being a woman.
What is true is that there is no evidence
that Spears had a sexual or romantic
interest in Frazier, though that is
possible. But many cases of sexual
harassment involve hostility to female
coworkers because they are female.
Sometimes it is because the men feel that
their macho workplace has been "invaded"
by women, whose presence damages the
self-esteem that the men derive from
thinking they are doing work that only
men can do. Carr v. Allison Gas Turbine
Division, 32 F.3d 1007 (7th Cir. 1994),
was such a case. This is not. But what
does seem to be involved here, or so at
least a reasonable jury might find, was a
sense on Spears’s part that as a man he
was owed gratitude and deference by a
woman whom he had assisted (by driving
her to work until she got a new car), and
that the denial of this obligation was an
affront to his manhood. We find it
difficult to imagine a man treating
another man the way Spears treated
Frazier--men do not normally respond with
such intensity to a spurned offer of
friendship, call each other sluts and
whores, make faces at each other, and
stalk each other. Those are
characteristic forms of male aggression
against women. See, e.g., McDonnell v.
Cisneros, 84 F.3d 256, 259-60 (7th Cir.
1996); Williams v. General Motors Corp.,
187 F.3d 563, 565-66 (6th Cir. 1999);
Hillary S. Axam and Deborah Zalesne,
"Simulated Sodomy and Other Forms of
Heterosexual Horseplay: Same Sex Sexual
Harassment, Workplace Gender Hierarchies,
and the Myth of the Gender Monolith
Before and After Oncale," 11 Yale J.L. &
Feminism 155, 161-73 (1999).
We have not finished with the Title VII
claim. Delco advances an alternative
ground for affirmance, one urged below
but not reached by the district court,
that Spears’s conduct toward Frazier was
not sufficiently egregious to render the
workplace intolerable for her, and so the
company’s failure to remedy it did not
alter the conditions of her employment
and so was not a violation of Title VII.
E.g., Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998); Pryor v. Seyfarth,
Shaw, Fairweather & Geraldson, 212 F.3d
976, 978 (7th Cir. 2000); Minor v. Ivy
Tech State College, 174 F.3d 855, 858
(7th Cir. 1999); Baskerville v. Culligan
International Co., 50 F.3d 428, 430-31
(7th Cir. 1995); Burnett v. Tyco Corp.,
203 F.3d 980, 982 (6th Cir. 2000). The
argument occupies less than three pages
of the defendant’s brief, with one of
them being given over to generalities.
The brief points out that Spears did not
make sexual remarks or gestures. But as
we noted earlier, that is not the kind of
sexual harassment alleged here. The brief
says that Spears never touched Frazier,
but if not restrained by a coworker in
the November blow-up he might well have
done so. A threat to kill cannot easily
be explained away as merely "rude or
childish behavior" (as the district court
had put it). It is true that the threat
itself was not actionable; Delco did not
violate Frazier’s rights until it failed
to take effective action to protect her
against Spears. Hostetler v. Quality
Dining, Inc., supra, 218 F.3d at 811. The
threat, however, provides the essential
context for appraising the gravity of the
later acts of harassment. See United Air
Lines Inc. v. Evans, 431 U.S. 553, 558
(1977); Kortan v. California Youth
Authority, 217 F.3d 1104, 1109 (9th Cir.
2000); Rorie v. United Parcel Service,
Inc., 151 F.3d 757, 761 (8th Cir. 1998).
To be glared at by someone who is
irritated by your having barged into line
ahead of him is a very different
experience from being glared at by a
person who has threatened to kill you.
Delco’s last point concerning this issue
is that Spears never "stalked" Frazier
because the dictionary defines stalking
as "pursuing quarry or prey stealthily,"
and Spears wasn’t stealthy. But as the
words "quarry" and "prey" reveal, the
definition refers to hunters stalking
animals, not to men harassing women by
following them about. It is common in the
latter form of stalking to make your
presence known to the victim. See, e.g.,
Wis. Stat. Ann. sec. 940.32 (2000), which
defines stalking as inducing fear of
bodily injury in a person by repeatedly
maintaining visual or physical proximity
to her. The stalking victim who doesn’t
know that she is being stalked is not in
fear of being injured.
A jury may conclude that Spears’s
conduct was insufficiently egregious to
make the workplace intolerable for a
reasonable person, but the conclusion is
not inevitable. A jury might find that
Spears’s persistent, crazy, hostile
behavior toward Frazier after his threat
to kill her was sufficiently ominous to
make the workplace intolerable even to a
person of average steadfastness.
So the dismissal of the Title VII claim
must be reversed, but we agree with the
district court that Frazier’s ADA claim
has no merit. She argues that the nervous
collapse that she suffered as a result of
Spears’s conduct and the company’s
failure to do anything about it was a
disability that the company failed to
accommodate. She did not return to work
until Spears transferred to a plant in a
different state, and she argues that the
company’s failure to isolate him from her
prevented her from returning to work
sooner.
The ADA defines disability as the
impairment of a major life activity, such
as walking, seeing, and reproduction. 42
U.S.C. sec. 12102(2)(A); Bragdon v.
Abbott, 524 U.S. 624, 638-39 (1998);
Amadio v. Ford Motor Co., 238 F.3d 919,
925 (7th Cir. 2001). Frazier does not
have a disability in that sense. She is
perfectly healthy. She can do anything
that any normal person can do--except
work in proximity to Bester Spears.
Working in proximity to Bester Spears is
not a major life activity.
Affirmed in Part, Reversed in Part,
and Remanded.