Mosher, Gloria J. v. Dollar Tree Stores ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1508
GLORIA J. MOSHER,
Plaintiff-Appellant,
v.
DOLLAR TREE STORES, INC., a Virginia corporation,
and NICK LIMO, a/k/a Michael Paul Herman,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2295--George M. Marovich, Judge.
Argued November 2, 2000--Decided February 16, 2001
Before MANION, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This is a he-said/she-said
case, where one party claims they shared a
mutually beneficial, consensual relationship and
the other alleges sexual harassment. Gloria
Mosher, a part-time cashier at a Dollar Bills
store (it’s owned by the defendant, Dollar Tree
Stores, Inc.) in Aurora, Illinois, claims she was
sexually harassed by the store manager, Nick
Limo, with whom she shared an apartment and a
bed. Mosher allowed Limo to pay half her rent,
accepted his gifts, met his parents, referred to
him as her boyfriend, and continued their
relationship for several months after she quit
her job at the store. Nonetheless, she says that
the 9-month relationship, during and after her
employment, occurred against her will. Even
giving credence to what she said, and viewing the
facts in the light most favorable to her, we find
that she fails to allege a claim for sexual
harassment, and so we affirm the grant of summary
judgment in favor of her employer. We also find
Mosher’s claims that the district judge was
biased against her and abused his discretion when
he denied her third request to extend discovery
to be unavailing.\1
The tale begins in January 1997, when Mosher,
who had not had a job for 11 years, took one as
a part-time cashier at the Aurora store after
being hired by Limo, the store’s manager. In her
deposition, Mosher acknowledges that Limo helped
her fill out the application form and handed her
an employee handbook. However, later she contends
that her memory grew hazy, and she could not
recall whether or not she had actually received
the handbook. Dollar Tree maintains that it had
a policy and practice of distributing its
employee handbook to all employees and that each
store displayed an employment poster in the
employee bathroom listing a contact number where
employees could report harassment. Mosher denies
ever seeing this poster.
After her first day of work, Limo asked Mosher
out to dinner, and she accepted his invitation.
She claims she went only because she thought that
if she didn’t, there might be problems on the
job. However, she admits that at the time, Limo
did not say anything that could be construed as
threatening. At dinner, the two discussed job
duties and how many hours Mosher would work.
Mosher contends that Limo also told her that if
she "played [her] cards right," she would "go
places," but that he did not explain what he
meant by this comment.
Mosher returned to work the next day. On her
third day at work, during a break, Mosher left
the cash register and went to the back of the
store. There, Limo pulled her onto his lap and
fondled her breasts. She protested, got up, and
returned to the cash register. In addition,
Mosher contends that Limo continued to ask her
out to dinner after each of her shifts and
frequently asked her "out of the blue" how she
liked her job./2 She believed these questions
were asked in a threatening manner.
Approximately 2 weeks after she started work,
Limo asked for directions to Mosher’s home, which
Mosher provided, although she now contends that
she did so under duress. Nevertheless, that
evening Limo drove to Mosher’s apartment. They
had sex and he stayed the night. He returned the
following evening and many nights afterwards,
bringing with him a change of clothes. At the
time, Limo was living at home with his parents,
and he contends that Mosher and he agreed that he
would start paying half her rent and would live
with her.
Mosher admitted that Limo paid half her rent
from March 1997 until their relationship ended in
October of the same year. She also conceded that
she accepted a check from Limo for clothes and
that he bought a microwave and air conditioner
for her apartment, which he left with her after
their relationship ended. Although Limo paid half
the rent, Mosher never gave him a key to the
apartment, but she let him in every time he
called. The two also attended social functions
together. Mosher acknowledged that she attended
a birthday celebration at a local restaurant with
Limo’s parents and afterwards went to his
parents’ home for cake.
While at the Dollar Bills store, neither
Mosher’s work responsibilities, schedule, nor
salary changed. Although Mosher alleges that she
was forced to resign due to the harassment, she
concedes that she never reported the situation to
Limo’s superior, the district manager Bill Rice.
Early in her tenure, in February 1997, Mosher did
speak with a new assistant manager, Richard
Martin. She told Martin that she was upset and
did not like her working conditions. Although she
did not provide details, she did state that Limo
was "after her."/3 Four months later, in the end
of May, Mosher left her job at the Dollar Bills
store. However, her sexual relationship with Limo
continued for another 5 months, and he continued
to pay rent.
After she resigned, Mosher accepted a higher-
paying position at a clothing store a few blocks
from the Dollar Bills store. Although she
continued to work in the same shopping plaza,
Mosher testified that Limo did not visit her in
her new place of employment, nor did he attempt
to contact her after their relationship ended in
October.
From March 1997 onwards, while she was employed
at the Dollar Bills store, Mosher was seeing two
physicians, one for medication, Dr. Kris
Gururajan, and the other for counseling, Dr.
Stephen De Jaynes./4 Both doctors testified that
during her visits Mosher reported that she had
found employment, stated that she was quite happy
with her new job, and that she had a new
boyfriend./5 She did not tell either physician
that she was afraid of losing her job or that she
was subject to a harassing work environment.
We review the district court’s grant of summary
judgment in favor of Dollar Tree de novo. Doe v.
Howe Military Sch., 227 F.3d 981, 990 (7th Cir.
2000). Summary judgment should be granted if the
pleadings, depositions, answers to
interrogatories, admissions, and affidavits leave
no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
In recent cases the Supreme Court abandoned the
commonly used categories of quid pro quo and
hostile work environment harassment, opting
instead to distinguish between cases based on
whether the supervisor took a tangible employment
action against the complaining subordinate and
those cases in which no such action was taken.
Burlington Indus. v. Ellerth, 524 U.S. 742, 760-
65 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 807 (1998). In establishing the
standards that govern vicarious liability of an
employer for the harassing actions of an
employee, we look to the agency principles
developed by the Court. Ellerth, at 754-55; see
also Molnar v. Booth, 229 F.3d 593, 600 (7th Cir.
2000).
Here, Mosher contends both that she suffered a
tangible employment action and that she was
subjected to a sexually harassing work
environment. "A tangible employment action
constitutes 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." Ellerth, 524
U.S. at 761. Mosher was not fired. She quit and
now claims to have been constructively
discharged.
First, it should be noted that we have yet to
determine whether a constructive discharge is a
tangible employment action within the meaning of
Ellerth and Faragher. Cf. Caridad v. Metro-North
Commuter R.R., 191 F.3d 283, 294 (2nd Cir. 1999)
("[C]onstructive discharge does not constitute a
’tangible employment action,’ as that term is
used in Ellerth and Faragher.")./6 However, we
need not settle that issue today, for we find
that Mosher did not raise a genuine issue of
material fact that she was constructively
discharged.
An employee can assert a claim of constructive
discharge when she is forced to resign because
her working conditions, from the standpoint of
the reasonable employee, have become unbearable.
Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th
Cir. 1998). Although an employee facing a
discriminatory or harassing work environment is
not required to file suit before resigning,
failure to object to egregious conditions or to
seek some form of redress is compelling evidence
that the employee, or any reasonable worker,
would not find the conditions intolerable. Id.
Absent extraordinary conditions, "a complaining
employee is expected to remain on the job while
seeking redress." Perry v. Harris Chernin, Inc.,
126 F.3d 1010, 1015 (7th Cir. 1997).
Mosher admits that she never confided in anyone
at the store. She never reported the situation to
Rice, Limo’s supervisor. At most, we can find
that she spoke rather obliquely to a newly
appointed assistant manager, Martin, early in her
tenure in February 1997. However, she did not
resign until 4 months later in May. Thus, Mosher
is unable to claim that incidents occurring in
February-- such as being asked to dinner,
questioned, or fondled-- were the triggering
events that made it impossible for her to remain
at the store. Rather, she bases her constructive
discharge claim on a patchwork of contributing
factors, including her living arrangement with
Limo.
Mosher and Limo entered into a living
arrangement and an ongoing sexual relationship
shortly after she began working at the store.
Mosher contends that this situation was entirely
involuntary and that she agreed to it only
because she needed to keep her job. However, the
facts surrounding Mosher’s relationship with Limo
do not suggest an objectively hostile or abusive
situation.
Mosher allowed Limo to pay half her rent for 9
months and regularly had sex with him. She never
gave him a key, but rather allowed him into her
apartment during each visit. She accepted his
gifts, met his parents, and referred to him as
her boyfriend. Although Mosher contends that
subjectively she was afraid of Limo and had sex
with him only in order to keep her job, her
allegations are inconsistent with her actions.
Not only did she not report the situation to
management, but she never alerted her own
counselor or physician. Rather, her report to
both treating physicians was positive, indicating
that she was engaged in a consensual
relationship. Moreover, she did not attempt to
rid herself of Limo. After she quit her job she
took a new one only blocks away and continued to
see Limo and have sex with him for another 5
months until their relationship ended in October.
Finally, although Mosher contends that Limo was
pertinacious, once their relationship ended,
Mosher admitted that he never came to visit her
in her new place of work or made any other
attempt to contact her by phone or in person.
Overall, Mosher’s passivity, her unwillingness
to alert anyone or to change her living
arrangement with Limo, are inconsistent with her
claim that she was subject to an unbearable work
environment and that her only option was to flee
Limo by quitting her job. Thus, we find that
Mosher was not constructively discharged.
Next, Mosher contends that she was subject to a
hostile work environment. Because this claim does
not involve a tangible employment action, Dollar
Tree contends that in keeping with Ellerth and
Faragher it is entitled to assert the affirmative
defense that it exercised reasonable care to
prevent and correct any sexually harassing
behavior and that Mosher unreasonably failed to
take advantage of preventive or corrective
opportunities. Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807. However, Dollar Tree’s
request is untimely. It failed to assert this
defense below and cannot do so now. "We have long
refused to consider arguments that were not
presented to the district court in response to
summary judgment motions." Cooper v. Lane, 969
F.2d 368, 371 (7th Cir. 1992). Thus, we consider
only whether Mosher alleges facts consistent with
a claim of hostile work environment and find that
she does not as a matter of law.
In order to be actionable under Title VII, "a
sexually objectionable environment must be both
objectively and subjectively offensive, one that
a reasonable person would find hostile or
abusive, and one that the victim in fact did
perceive to be so." Faragher, 524 U.S. 775, 787.
In determining whether an environment is
sufficiently hostile or abusive we look at the
totality of the circumstances, including but not
limited to the "frequency of the discriminatory
conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes
with an employee’s work performance." Id. at 787-
88 (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993)).
The most significant and disturbing incident
recalled by Mosher occurred on her third day of
work when she says Limo pulled her onto his lap
and fondled her breasts. While this readily could
be considered a severe incident, Mosher’s
reaction suggests that she did not perceive it as
such. At the time, she reported the incident to
no one and within weeks was involved in what can
only be reasonably described as a consensual
sexual relationship with Limo which continued for
many months. See Dey v. Colt Const. & Dev. Co.,
28 F.3d 1446, 1454 (7th Cir. 1994) ("[I]f the
victim does not subjectively perceive the
environment to be abusive, the conduct has not
actually altered the conditions of the victim’s
employment, and there is not a Title VII
violation.") (quoting Harris, 510 U.S. at 370).
Even viewing all the facts in the light most
favorable to Mosher, no reasonable jury could
conclude that she was anything other than a
willing participant in a long, consensual
relationship with her boss. Getting involved in
a relationship like that is, for both an employee
and a boss, usually unwise. But it happens. As
long as men and women work together, the
potential for sexual sparks to fly in the
workplace will always exist. But after a long-
time sexual relationship like this one goes sour,
it will be only the unusual case that can escape
summary judgment. And this one is not that
unusual.
AFFIRMED.
/1 Mosher did not file a motion to have the district
judge recused but rather appears on appeal to be
alleging judicial bias based on a letter sent by
Judge George M. Marovich to both litigants. The
letter invited both parties to provide the court
with a candid assessment of their case including:
whether the case could be decided by dispositive
motions, the likelihood of success on the merits,
the scope of damages, and what legal expenses
would be incurred. In this case, both parties
submitted responses, and Mosher contends that
after receiving these ex parte communications the
judge’s attitude towards Mosher’s case changed.
First, we note that in litigious districts such
as the one in Chicago, federal judges carry an
unwieldy burden. Innocuous case management
tactics such as Judge Marovich’s letter are
designed to help judges organize their trial
schedules, promote settlement, and better serve
the needs of the litigants that come before them.
We find nothing improper in Judge Marovich’s
letter or his receipt of responses and find he
acted well within his discretion. Finally, the
court gave Mosher almost a full year to conduct
discovery. Thus, we find the judge did not abuse
his discretion when he refused to extend
discovery for a third time, where Mosher claimed
to have failed to obtain all of her own medical
records.
/2 On appeal, Mosher submits new allegations of
harassment which were not raised below. We limit
our review to facts that were before the district
court when it granted summary judgment. See
Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237
(7th Cir. 1996) (issues not raised in the
district court are deemed waived).
/3 Dollar Tree’s Attorney: You said in your
complaint that you complained about Mr. Limo to
an assistant manager named Richard?
Mosher: Yeah. I told him that I was
upset, and I didn’t like working
under the conditions and, you know.
. . . .
Attorney: What did you tell Richard?
Mosher: I just said that I was unhappy, you
know. I just came there
to work. I’m on Social Security. I’m a cardiac
patient. I hadn’t worked in 11 years. I moved to
this place. I was paying X-amount more dollars
than I did before, so I had to work. That’s what
it was.
. . . .
Attorney: So you never confided in Richard.
You never said that he’s
sexually harassing me, that he’s forcing me to
have sex, nothing like that?
Mosher: I never confided in anybody in that store.
Attorney: About anything?
Mosher: No. It was rather embarrassing.
/4 Mosher provided her medical records to opposing
counsel to substantiate her claim for emotional
damages.
/5 Dollar Tree’s Attorney: Do you remember what she
said about it?
Dr. Gururajan: She said she got a job and
she is quite happy about the
work. In fact, if I remember right, I think she
told me she hasn’t had a job for a long time and
she was happy that she got a job.
. . . .
Attorney: Did she ever tell you she was
in a relationship of any kind?
Dr. Gururajan: She did tell me that she has
a boyfriend . . . I asked her whether
she talked about this to her
counselor and she said she is planning
to talk to him.
. . . .
Dollar Tree Attorney: What did she say
[about Limo]?
Dr. Stephen De Jaynes: In general, that
the relationship was positive
and at one point, I believe,
she had planned to
move in with him. They were going to get an
apartment together, I believe.
/6 The Second Circuit concluded that constructive
discharge is not a tangible employment action, in
part because even co-workers may be responsible
for a constructive discharge and a constructive
discharge is neither ratified nor approved by
management. Caridad, 191 F.3d at 294.