Hall, Louvenia v. Bodine Electric Co ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4222
Louvenia Hall,
Plaintiff-Appellant,
v.
Bodine Electric Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 8050--Charles P. Kocoras, Judge.
Argued September 7, 2001--Decided January 8, 2002
Before Bauer, Easterbrook, and Manion,
Circuit Judges.
Manion, Circuit Judge. Louvenia Hall
sued her former employer, Bodine Electric
Company, alleging that the company
violated Title VII by discriminating
against her on the basis of sex with
respect to its training and promotion
practices, subjected her to hostile
environment sexual harassment, and
retaliated against her for reporting the
harassment. Bodine moved for summary
judgment, which the district court
granted. Hall appeals the decision, and
we affirm.
I.
Louvenia Hall worked as a machine
operator at Bodine Electric Company from
September 9, 1994 until June 14, 1999.
Bodine manufactures small motors for a
variety of machines requiring a quiet
power source for repetitive motors. Hall
operated a grinding machine (a machine
that smooths parts) and a hobbing machine
(a machine that cuts teeth into gears) in
the company’s gearing/hobbing department
("gearing cell").
Shortly after she began working at
Bodine, Hall claims that her supervisor,
Steve Conn, refused to provide her with
orientation training, and that she only
received the training after complaining
to his superior. She contends that this
incident was merely the beginning of a
pattern of discrimination against her by
Bodine when it came to training
opportunities for advanced positions in
the company./1 Hall alleges that Bodine
gave preferential treatment to its male
employees when training opportunities for
advanced positions became available, and
refused to train her for these positions
solely because of her gender.
Hall also alleges that Bodine subjected
her to a hostile environment of sexual
harassment. On June 8, 1999, Hall came to
work wearing a sleeveless blouse with a
sleeveless t-shirt on underneath--she did
not have on a brassiere. Later that day,
Hall was speaking with Samuel Lopez and
Douglas Benson, two of her co-workers,
when Lopez suddenly reached over and
pulled her blouse and t-shirt from her
body, thereby exposing her breast. Lopez
then held out his thumb and exclaimed,
"Her nipples is this damn big!" Hall
attempted to strike Lopez, but he ran
away from her. She then went looking for
her supervisor, Brian Kolka, to inform
him of what had just occurred. By the
time Hall found him, a company meeting
was about to begin, and, before she could
say anything, Kolka requested that they
speak at a later time. The meeting lasted
until the end of the workday, and Hall
went home without informing Kolka of
Lopez’s harassment.
The next morning, tensions ran high in
the gearing cell. Lopez, one of the
cell’s "set-up operators,"/2 assigned
Hall to operate a specific machine, but
she angrily refused to comply with his
directive. Lopez informed Kolka of Hall’s
refusal, and Kolka immediately arranged a
meeting between the three of them to
address the matter. From the outset of
the meeting, Kolka sensed the "vitriol"
between Hall and Lopez, and attempted to
facilitate a constructive dialogue to
ascertain the underlying problem. When
Lopez and Hall refused to stop
interrupting one another, Kolka decided
to end the meeting. Before doing so,
however, he told Hall that Lopez, as a
set-up operator, had the authority to
assign her to any machine in the gearing
cell, and that she was required to follow
his instructions. The meeting ended after
Hall agreed to comply with Lopez’s
instructions in the future. Neither Hall
nor Lopez mentioned the previous day’s
incident during this meeting.
At the conclusion of the meeting, Hall
went to the human resources department to
file a complaint against Lopez for sexual
harassment. She met with Kolka and Mike
Metz, Bodine’s human resources manager,
and related to them what Lopez had done
to her the previous day. Kolka and Metz
then called Rich Meserve, Bodine’s vice
president of human resources, into the
meeting, and requested that Hall repeat
the allegations of her complaint for his
benefit. She did so and also informed
them, for the first time, of other
occasions where Lopez had sexually
harassed her. Hall told them that, on
approximately eight or nine occasions in
October or November of 1998, Lopez rubbed
a small rubber ball with spikes on the
back of her neck in an effort to make her
"nipples stick out." She also claimed
that Lopez often made inappropriate
sexual comments in her presence. When
Hall finished recounting these incidents,
Meserve thanked her for apprising the
company of the conduct, informed her that
an investigation would be commenced
immediately, and told her that she could
return to work. After telling him that
she was too upset to work, Meserve gave
Hall the remainder of the day off with
pay. Meserve then assigned Metz to
conduct an investigation of Hall’s
complaint, instructing him to begin the
process immediately by interviewing
Lopez. Meserve told Metz that after he
interviewed Lopez he was to advise him of
his suspension, pending the outcome of
the investigation. Metz interviewed Lopez
later that day, afterwards informing him
of the suspension. The following day,
Lopez filed a "counter claim" of
harassment against Hall, alleging that
she grabbed his buttocks and made graphic
sexual comments/ gestures about male
genitalia. Bodine responded to Lopez’s
complaint by suspending Hall, and
expanding Metz’s investigation to
encompass both complaints.
Metz interviewed eighteen people,
including Lopez and Hall, during the
course of his investigation. He spoke
with every individual that Lopez and Hall
identified as a potential witness, and a
few others that he determined might have
been stationed in the proximity of the
alleged conduct. Metz made handwritten
notes during these interviews, but
shredded them after typing them into his
computer at the conclusion of each day of
the investigation. Based on the
information he discovered during the
investigation, Metz concluded that Lopez
and Hall had both violated Bodine’s
workplace rules prohibiting sexual
harassment. Metz reported his findings
and conclusions to Meserve who then made
the decision, on June 14, 1999, to
terminate both employees.
On June 11, 1999, three days prior to
her termination, Hall filed charges with
the EEOC alleging that Bodine
discriminated against her on the basis of
her sex, subjected her to hostile
environment sexual harassment, and
retaliated against her for complaining of
the discriminatory treatment and
harassment. Hall filed a second EEOC
complaint on June 18, 1999, alleging that
Bodine fired her in retaliation for
reporting Lopez’s sexual harassment and
because of her gender. After receiving
her right-to-sue letters, Hall initiated
the underlying civil action against
Bodine, suing the company under Title VII
for sex discrimination, hostile
environment sexual harassment, and
retaliatory discharge. The district court
granted Bodine’s motion for summary
judgment on all three claims. Hall
appeals the decision.
II.
We review de novo the district court’s
decision to grant summary judgment,
construing all facts, and drawing all
reasonable inferences from those facts,
in favor of Hall, the non-moving party.
Warsco v. Preferred Technical Group, 258
F.3d 557, 563 (7th Cir. 2001). Summary
judgment is appropriate if there is no
genuine issue as to any material fact,
and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ.
P. 56(c).
A. Hall’s Claim of Sex Discrimination
Hall alleges that Bodine discriminated
against her on the basis of her sex, in
violation of Title VII, by refusing to
train her for advanced positions in the
company, and by giving preferential
treatment to male employees, with less
seniority and experience, when these jobs
became available.
Title VII makes it "an unlawful
employment practice for an employer . . .
to discriminate against any individual
with respect to [her] compensation,
terms, conditions, or privileges of
employment, because of such individual’s
race, color, religion, sex, or national
origin." 42 U.S.C. sec. 2000e-2(a)(1). In
Illinois, an individual must initiate a
sex discrimination claim by filing an
EEOC charge within 300 days of the
alleged discrimination. See Shanoff v.
Illinois Dept. of Human Services, 258
F.3d 696, 701 (7th Cir. 2001). Failure to
do so bars litigation over those claims.
Speer v. Rand McNally & Co., 123 F.3d
658, 662 (7th Cir. 1997); 42 U.S.C. sec.
2000e-5(e) (prescribing limitations
period for discrimination charges). The
300-day time period for Hall to file her
sex discrimination claim excludes any
alleged discriminatory acts occurring
before August 15, 1998. All of the
specific incidents of failure to train
and promote, forming the basis of Hall’s
sex discrimination claim, occurred well
outside of this statutory time period,
and therefore she relies on the
"continuing violation" doctrine to
maintain the viability of her claim.
The continuing violation doctrine allows
a Title VII plaintiff to get relief for
time-barred acts by linking them with
acts occurring within the limitations
period. See, e.g., Shanoff, 258 F.3d at
703; Miller v. American Family Mut. Ins.
Co., 203 F.3d 997, 1003-04 (7th Cir.
2000). When this takes place, we treat
the combination of acts as "’one
continuous act that ends within the
limitations period.’" Shanoff, 258 F.3d
at 703 (citation omitted). Pre-
limitations period conduct does not
become actionable, however, merely
because a plaintiff brings a timely suit
on a limitations period violation. A
plaintiff "may not base her . . . suit on
conduct that occurred outside the statute
of limitations unless it would have been
unreasonable to expect the plaintiff to
sue before the statute ran on that
conduct . . . ." Galloway v. Gen. Motors
Serv. Parts Operations, 78 F.3d 1164,
1167 (7th Cir. 1996). She may, however,
do so in a case where "the conduct could
constitute, or be recognized, as
actionable harassment only in the light
of events that occurred later, within the
period of the statute of limitations."
Id. The doctrine may also apply "when,
after an initial incident of
discrimination, a plaintiff does not feel
’sufficient distress to . . . mak[e] a
federal case.’" Hardin v. S.C. Johnson &
Son, Inc., 167 F.3d 340, 344 (7th Cir.
1999) (citation omitted).
The district court concluded that Hall
could not utilize the continuing
violation doctrine because she: (1)
offered no evidence that a discriminatory
action had been taken against her during
the limitations period, and (2) did not
demonstrate, or for that matter even
argue, that she reasonably failed to
perceive the pre-limitations period
conduct as discriminatory, or as
sufficiently severe enough to warrant
remedial action on her part. Hall argues
on appeal, however, that neither of these
facts precludes her from invoking the
continuing violation doctrine because her
case falls within the ambit of this
court’s decision in Freeman v. Madison
Metro. School Dist., 231 F.3d 374 (7th
Cir. 2000),/3 a case where the doctrine
applied. In Freeman, the plaintiff
brought a Title VII race discrimination
claim against his former employer
alleging that, after suffering a work-re
lated injury, the employer refused to
modify his job duties to accommodate his
new physical limitations, even though it
had previously provided similar
accommodations to white employees. Id. at
376. We held that the district court
erred in precluding Freeman from using
the continuing violation doctrine
"[b]ecause at least some of the decisions
delaying his return to work were made
within the limitations period," id. at
381, and his employer’s pre-limitations
period conduct could have reasonably been
perceived as expressing a willingness to
accommodate his disability. Id.
Therefore, "only with the benefit of
hindsight, after the series of
discriminatory acts, could Freeman have
realized he was the victim of unlawful
discrimination." Id.
The facts of this case are entirely
different from those in Freeman. First,
unlike Freeman, Hall has failed to
identify any discriminatory conduct on
the part of Bodine during the limitations
period of her case. Requiring plaintiffs
to identify a limitations period
violation is necessary to enable courts
to distinguish an ongoing pattern of
discrimination from non-actionable
situations involving the "persisting
effects of past discrimination." Freeman,
231 F.3d at 381. Additionally, by her own
admission, Hall was on notice of the
alleged discriminatory conduct well in
advance of the limitations period. As
early as 1994, she regularly complained
to supervisors that she was not receiving
advanced training./4 Hall argues,
however, that her awareness of the
alleged discrimination is irrelevant
because Bodine, like the employer in
Freeman, promised to eventually train
her, and, therefore, she should not be
penalized for relying on such promises.
We find this argument unpersuasive. There
is simply nothing in the record to
support Hall’s contention that she was
justified in waiting until June 1999 to
complain about Bodine’s alleged refusal
to train her. Whatever claim she may have
had against Bodine, she lost it by
failing to file a complaint within the
time allowed by Title VII. See, e.g.,
EEOC v. North Gibson School Corp., 266
F.3d 607, 617 (7th Cir. 2001) ("the
continuing violation doctrine does not
apply when a time-barred incident cannot
be linked with an incident that occurred
within the statutory period or when the
time-barred incident alone should have
triggered the plaintiff’s awareness that
[her] rights had been violated.")
(citation omitted).
Without the time-barred conduct, the
only evidence left to support Hall’s
claim is an affidavit where she asserts
that "[d]uring the entire time that I
worked for Bodine I was subjected to
discriminatory treatment due to my
gender, female, on a continuing basis."
It is well settled that conclusory
allegations and self-serving affidavits,
without support in the record, do not
create a triable issue of fact. See,
e.g., Patterson v. Chicago Ass’n for
Retarded Citizens, 150 F.3d 719, 724 (7th
Cir. 1998). We, therefore, conclude that
the district court’s decision to grant
Bodine’s motion for summary judgment of
this claim was proper.
B. Hall’s Claim of Sexual Harassment
Hall also alleges that Bodine violated
Title VII by subjecting her to a hostile
work environment. In order to establish a
prima facie case of hostile environment
sexual harassment, a plaintiff must
demonstrate that: "(1) she was subjected
to unwelcome sexual harassment in the
form of sexual advances, requests for
sexual favors or other verbal or physical
conduct of a sexual nature; (2) the
harassment was based on [the
individual’s] sex; (3) the sexual
harassment had the effect of unreasonably
interfering with the plaintiff’s work
performance in creating an intimidating,
hostile or offensive working environment
that affected seriously the psychological
well-being of the plaintiff; and (4)
there is a basis for employer liability."
Parkins v. Civil Constructors of Ill.,
Inc., 163 F.3d 1027, 1032 (7th Cir. 1998)
(citations omitted). We begin with the
fourth element because, as explained
below, Hall has failed to establish a
basis for employer liability, and
therefore cannot prevail on her claim.
An employer’s liability for hostile
environment sexual harassment hinges on
whether the harasser is the victim’s
supervisor or merely a co-employee.
Parkins, 163 F.3d at 1032. "’An employer
is subject to vicarious liability to a
victimized employee for an actionable
hostile environment created by a
supervisor with immediate (or
successively higher) authority over the employee.’"
Id. (quoting Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 745 (1998)). In
Parkins, we held
it is manifest that the essence of
supervisory status is the authority to
affect the terms and conditions of the
victim’s employment. This authority
primarily consists of the power to hire,
fire, demote, promote, transfer, or
discipline an employee. Absent an
entrustment of at least some of this
authority, an employee does not qualify
as a supervisor for purposes [of]
imputing liability to the employer.
Id. at 1034.
In this case, Hall argues that her
harasser, Lopez, qualifies as a Title VII
supervisor because he: (1) possessed the
authority to direct her work operations
(i.e., which machines she ran); (2)
provided input into her performance
evaluations, and (3) was charged with
training her and other less experienced
employees./5 Accepting these attributes
as true, as we are required to do in the
summary judgment context, none of them is
enough to bring Lopez within the
definition of a Title VII supervisor--as
there is nothing in the record indicating
that Bodine entrusted him with the
authority to "hire, fire, demote,
promote, transfer, or discipline" Hall.
Moreover, the fact that an employer
authorizes one 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. See, e.g., 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). The
type of marginal discretion Lopez had
over Hall’s work operations is not
sufficient to impute Title VII vicarious
liability to an employer. See, e.g.,
Parkins, 163 F.3d at 1034. Additionally,
Hall’s own actions indicate that she
never considered Lopez to be her
supervisor. Whenever she had a complaint,
she spoke with her actual supervisor
(i.e., Steve Conn or Brian Kolka) or the
human resources department, not with
Lopez or anyone else in his capacity./6
Because Lopez was not Hall’s supervisor,
Bodine is liable for his conduct only if
the company was "’negligent either in
discovering or remedying the harassment.’"
Parkins, 163 F.3d at 1032 (citations
omitted); see also Berry v. Delta
Airlines, Inc., 260 F.3d 803, 811 (7th
Cir. 2001); Haugerud, 259 F.3d at 696-97.
An employer’s legal duty in co-employee
harassment cases "will be discharged if
it takes ’reasonable steps to discover
and rectify acts of sexual harassment by
its employees.’" Parkins, 163 F.3d at
1032 (citations omitted); see also Berry,
260 F.3d at 811. Title VII neither
requires nor expects the management of a
company to be aware of every impropriety
committed by every low-level employee.
Parkins, 163 F.3d at 1035. Therefore,
"notice or knowledge of the harassment is
a prerequisite for liability" in co-
employee harassment cases. Id. In
assessing whether an employer had notice
of sexual harassment, "we first determine
whether the employer designated a channel
for complaints of harassment." Id. Where
an employer designates a "point person"
to accept complaints, "’this person
becomes the natural channel for the
making and forwarding of complaints, and
complainants can be expected to utilize
it in the normal case.’" Id. (citation
omitted). If a point person has not been
identified, or is not easily accessible,
"an employer can receive notice of
harassment from a ’department head’ or
someone that ’the complainant reasonably
believed was authorized to receive and
forward (or respond to) a complaint of harassment.’"
Id. (citation omitted). "With respect to
the extent of the notice given to an
employer, however, a plaintiff ’cannot
withstand summary judgment without
presenting evidence that she gave the
employer enough information to make a
reasonable employer think there was some
probability that she was being sexually
harassed.’" Id. (citation omitted).
Hall does not contend that Bodine was
negligent in remedying Lopez’s harassment
of her on June 8, 1999--nor could she
given his rapid termination by the
company. She does, however, tangentially
argue that Bodine was negligent in
"discovering" Lopez’s prior harassment of
her (i.e., the conduct involving the
rubber ball with spikes and inappropriate
sexual comments) because it failed to
implement an "effective" (i.e., published
and widely distributed) sexual harassment
policy. But we have never held that Title
VII employers must institute formal
sexual harassment policies. Instead, we
have focused on whether an employer has a
reasonable mechanism in place for
"detecting and correcting harassment."
Shaw v. Autozone, Inc., 180 F.3d 806, 812
(7th Cir. 1999), cert. denied, 528 U.S.
1076 (2000). See also Gentry v. Export
Packaging Co., 238 F.3d 842, 847 (7th
Cir. 2001) ("a sexual harassment policy
must provide for ’effective grievance mechanisms’"
and "should provide for a meaningful
process whereby an employee can express
his or her concerns regarding an
individual within a working
environment.") (citation omitted).
Bodine had an effective "channel" in
place for Hall to report sexual
harassment in the workplace. On three
separate occasions, Hall complained that
she had been sexually harassed. In each
instance, she knew exactly whom to file a
complaint with--her supervisor or the
human resources department. Additionally,
Bodine responded to her complaints by
either disciplining or terminating the
offending employee./7 Hall concedes
that, prior to the filing of her June 9,
1999 complaint, she never notified Bodine
that Lopez was harassing her, and she
offers no satisfactory explanation on
appeal for her failure to do so./8
Thus, while she claims that Bodine was
"astonishingly unprepared to deal with
problems of sexual harassment," we fail
to see how a formal sexual harassment
policy would have been any more effective
than the mechanism the company already
had in place, especially given Hall’s
unwillingness to report Lopez’s conduct.
Bodine was not only prepared to deal with
sexual harassment, but effectively dealt
with such behavior by addressing each of
Hall’s complaints in an effective and
expeditious manner. An employer is not
liable for co-employee sexual harassment
when the victim, having a mechanism by
which to report the harassment, fails to
do so, and where the record is devoid of
any credible evidence that the employer
should have known that the harassment was
taking place. Cf. Murray v. Chicago
Transit Auth., 252 F.3d 880, 889 (7th
Cir. 2001) (holding that an employee
being sexually harassed by a supervisor
must utilize any mechanisms her employer
has in place for addressing complaints of
sexual harassment).
Hall was sexually harassed by a co-
employee, not a supervisor. Because
Bodine promptly addressed the harassment
upon being apprised of the behavior, the
company may not be held liable for
Lopez’s conduct. As such, the district
court’s decision to grant Bodine’s motion
for summary judgment of this claim was
appropriate.
C. Hall’s Claim of Retaliation
Title VII protects persons not just from
certain forms of job discrimination, but
also from retaliation for complaining
about the types of discrimination it
prohibits. 42 U.S.C. sec. 2000e-3(a) ("It
shall be an unlawful employment practice
for an employer . . . to discriminate
against any individual . . . because
[she] has opposed any practice made
anunlawful employment practice by [Title
VII]."). Hall argues that Bodine violated
Title VII by firing her in retaliation
for reporting Lopez’s sexual harassment.
She does not have direct evidence that it
did so, and therefore proceeds under the
McDonnell Douglas burden-shifting variant
applicable to claims of retaliation.
Miller v. American Family Mut. Ins. Co.,
203 F.3d 997, 1007 (7th Cir. 2000) A
prima facie case of retaliation is
established under McDonnell Douglas when
the plaintiff demonstrates: (1) she
engaged in statutorily protected
expression by complaining about
discrimination that Title VII covers; (2)
she suffered an adverse action by her
employer; and (3) there is a causal link
between the protected expression and the
adverse job action. Id. If Hall
establishes these elements, then Bodine
has the burden of producing a legitimate,
non-discriminatory reason for firing her.
Id. If Bodine succeeds in doing this,
Hall then has the burden of proving that
Bodine’s proffered reason is not true,
but a mere pretext for retaliating
against her. Id.
In reviewing the district court’s
disposition of Hall’s retaliation claim,
we will assume that she has made out a
prima facie case, and move directly to
the question of pretext. See, e.g.,
Rummery v. Ill. Bell Telephone, 250 F.3d
553, 556 (7th Cir. 2001). We do so not
because we are convinced that Hall has
established a prima facie case of
retaliation, but because our analysis of
that issue would substantially overlap
with the question of pretext. See, e.g.,
Olsen v. Marshall & Ilsley Corp., 267
F.3d 597, 600-01 (7th Cir. 2001).
Bodine’s articulated reason for
terminating Hall is that she violated a
company work rule regarding sexual
harassment in the workplace. The company
made this determination at the conclusion
of an investigation of cross-complaints
of sexual harassment made by Hall and
Lopez against one another. Hall contends,
however, that the investigation was a
"sham" designed to fire her. She claims
that this is so because the investigator,
Metz, failed to preserve the handwritten
notes he made each day while interviewing
witnesses, and misrepresented several of
the witnesses’ statements in his final
report to the company. While we agree
that, if true, this type of conduct could
be enough for a reasonable jury to
conclude that Bodine’s proffered reason
for termination was pretextual, the
record does not support Hall’s
characterization of Metz’s investigation.
We begin by noting the complete absence
of any evidence of a pre-investigation
animus between Metz and Hall./9 The
lack of any previous hostility between
these two individuals is a relevant
consideration in evaluating whether Hall
has met her burden of demonstrating that
Bodine’s proffered reason for terminating
her was pretextual. This is especially
true given her contention that Metz’s
characterization of her workplace
behavior was based on a foundation of
"lies and distortions."
The fact that Metz did not maintain his
original handwritten investigation notes
is not evidence of pretext. We have held
that "[e]mployers are not required to
keep every single piece of scrap paper .
. . [created] during the termination
process [and that] [i]t is sufficient
that the employer retains only the actual
employment record itself, not the rough
drafts or processes which may lead up to
it." Rummery, 250 F.3d at 558-59. See
also Jeffries v. Chicago Transit Auth.,
770 F.2d 676, 681 (7th Cir. 1985). Metz
claims that he disposed of the original
handwritten notes because: (1) they were
"very rough," containing "shorthand, full
of misspellings and cross-outs"; (2) the
typed version substantively conveyed
everything contained in the handwritten
notes; and (3) for confidentiality
reasons. We find all of these reasons to
be entirely plausible. Because Hall
offers nothing more than self-serving
speculation, we conclude that Metz’s
failure to preserve his handwritten
interview notes is not, in and of itself,
evidence that his investigation was
conducted in bad faith, or that Bodine’s
reason for firing her was pretextual.
Hall argues that Metz’s animus towards
her is demonstrated by the blatant
distortions he made in his final report
to the company. She claims that he
misrepresented several of the witnesses’
statements, and omitted other statements
from his report that would have cast her
in a more positive light. After carefully
reviewing each of the examples cited by
Hall in support of this contention, we
conclude that her allegation is little
more than hyperbole. In fact, many of the
deposition excerpts she references
actually substantiate Metz’s conclusion
that Hall’s workplace conduct was highly
inappropriate.
Metz’s final report contained summaries
of each interview that he conducted over
the course of his investigation. The
report notes that eight of the sixteen
witnesses Metz interviewed described the
relationship between Hall and Lopez as
mutually inappropriate. According to
Metz, these witnesses stated that Hall
and Lopez touched each other in a
playful, sexual manner on numerous
occasions, constantly told crude sexual
jokes, and frequently made graphic sexual
comments to one another./10 The report
also notes that some of the male
witnesses informed Metz that Hall had
engaged in this same type of behavior
with them as well./11 Hall claims that
some of the incidents mentioned by these
witnesses are either untrue, or have been
taken entirely out of context. She does
not, however, deny the overall allegation
made by these witnesses--that she behaved
inappropriately in the workplace./12
Instead, Hall argues that her workplace
conduct, while inappropriate, does not
amount to Title VII sexual harassment,
and, therefore, Bodine "had no legitimate
reason" to terminate her. She is
mistaken. While Title VII protects
victims of sexual harassment from being
terminated in retaliation for reporting
harassment, an employee’s complaint of
harassment does not immunize her from
being subsequently disciplined or
terminated for inappropriate workplace
behavior. Cf. Durgins v. City of East St.
Louis, Illinois, 2001 WL 1443286, at *1
(7th Cir. November 16, 2001) ("An
employer that finds during an
investigation . . . that it should not
have hired the person in the first place
may decide to end the employment without
any objection that this is ’retaliation’
for the . . . complaint . . . .")
(citation omitted).
Even if we assume that Hall’s tawdry
conduct did not amount to Title VII
sexual harassment, Bodine was still
permitted to terminate her. In fact, the
company’s failure to do so would have
most likely constituted a Title VII
violation (i.e., sex discrimination
against Lopez), as well as subjecting the
company to future liability if another
complaint of harassment was filed against
Hall.
In conclusion, Hall offers no evidence
that her termination was in any way
connected to her complaint of Lopez’s
sexual harassment, or that Bodine’s
reason for firing her was
pretextual./13 We, therefore, affirm
the district court’s decision granting
Bodine’s motion for summary judgment of
this claim.
III.
Hall did not present sufficient evidence
to defeat Bodine’s motion for summary
judgment of her claims. She was not able
to use the continuing violation doctrine
to recover for the pre-limitations period
conduct forming the basis of her sex
discrimination claim. Her claim for
hostile environment sexual harassment was
not cognizable because she was unable to
demonstrate that Bodine was either
vicariously liable for Lopez’s actions,
or negligent in discovering or remedying
his sexual harassment of her. Finally,
she was unable to demonstrate that
Bodine’s proffered reason for terminating
her was pretextual. Because there were no
outstanding issues of material fact
remaining with respect to these claims,
the district court properly granted
Bodine’s motion for summary judgment.
AFFIRMED.
FOOTNOTES
/1 Hall also claims that toward the end of 1994, she
informed Conn that some of her male co-workers
were refusing to help her lift heavy parts in the
work area. This conduct ceased, however, after
she reported the behavior to Conn.
/2 A "set-up operator" has the authority to assign
machine operators to specific machines within a
gearing cell.
/3 Hall made it clear at oral argument that her
"interpretation"of Freeman is really nothing more
than a tacit invitation to this court to overrule
Galloway, 78 F.3d at 1167, and to adopt and
expand the "sufficiently related to" version of
the continuing violation doctrine adopted by the
Ninth Circuit. See, e.g., Morgan v. Nat’l R.R.
Passenger Corp., 232 F.3d 1008, 1015-16 (9th Cir.
2000), cert. granted, 121 S. Ct. 2547 (U.S. June
25, 2001) (No. 00-1614) (permitting Title VII
claimants, alleging an unlawful employment prac-
tice during the limitations period, to recover
for pre-limitations period violations when they
are "sufficiently related to" limitations period
conduct, regardless of whether they were cogni-
zant of the alleged discrimination at the time
the violation occurred). We decline plaintiff’s
invitation, and stand by our decision in Gallo-
way.
/4 While this court is not required to "’scour the
record in search of evidence to defeat a motion
for summary judgment,’" Ritchie v. Glidden Co.,
242 F.3d 713, 723 (7th Cir. 2001) (citation
omitted), we also found three other incidents,
not specifically mentioned in Hall’s appellate
briefs, where she contends Bodine passed her over
for advanced training positions in favor of male
employees with less seniority and experience--
twice in 1996 and once in March 1997. Even were
we to conclude that Hall did not become aware of
Bodine’s alleged discriminatory conduct until
March 1997, her claim would still be untimely.
/5 Jerry Ptak was also a set-up operator during
Hall’s shift in the gearing cell, and he pos-
sessed these attributes as well. Hall concedes
that Ptak provided her with advanced training.
/6 This is especially relevant with respect to
Hall’s complaints about Lopez’s refusal to train
her. Hall admits that she filed several com-
plaints with Brian Kolka advising him of the
situation. She also acknowledges that Kolka had
the authority to correct the problem, and that he
attempted, unsuccessfully in her opinion, to
implement a system that promoted cross-training
of all employees. This demonstrates that Hall
viewed Kolka, and not Lopez, as her supervisor.
/7 In addition to Lopez’s termination, Bodine disci-
plined Leroy Washington in 1998 for grabbing
Hall’s buttocks. Another employee, Ernie Bush,
was terminated for calling Hall a "dumb ass
bitch."
/8 Hall offers three reasons for failing to report
Lopez’s prior harassment of her. First, she
claims that whenever the harassment occurred she
would tell Lopez to stop it, and that afterwards
he would not harass her for several weeks (only
to resume the conduct again). Second, she con-
tends that this type of behavior was "simply part
of the environment [that she] was working in."
Third, she asserts that Bodine did not have a
procedure for filing complaints of sexual harass-
ment.
/9 On the contrary, the record suggests that Metz’s
conduct towards Hall was professional and courte-
ous. For example, after the termination of Ernie
Bush (see fn. 7), Metz escorted Hall in and out
Bodine’s facility for a week, out of a concern
for her physical safety.
/10 Hezekehia Johnson told Metz that Lopez and Hall
"played around with each other equally," that
they were constantly "telling each other sexual
jokes, patting each other on the buttock[s], and
talking about their sexual deeds," and that Hall
told him, on at least one occasion, that she was
touching Lopez in an effort to get his penis
hard. Kevin Ray told Metz that "he heard [Lopez
and Hall] brag about their sexual exploits," and
that Hall "would talk about the size of a man’s
penis, the number of times she had sex, the ways
in which she had sex, and the number of people
she had sex with."
/11 Jorge Santos told Metz that Hall approached him
on the job and stated, "what about it [sic] if I
turn off the light and we could go and do it on
the table." Leroy Washington told Metz that while
he and Hall were working together, she told him
that she wanted to go out with him, and asked
him, "when are we going to a motel?"
/12 Hall’s attorney even concedes on appeal that
"[t]here is some evidence that Hall and Lopez had
a history of exchanging ’dirty jokes’ or sexually
oriented conversation."
/13 Hall’s retaliation claim is further undermined by
the weakness of her sex discrimination and sexual
harassment claims. See Debs v. Northeastern
Illinois Univ., 153 F.3d 390, 396 (7th Cir. 1998)
(decision to reject retaliation claim was "bol-
stered" by weak evidence of discriminatory ani-
mus).