Murray, Lorene F. v. CTA ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3774
Lorene F. Murray,
Plaintiff-Appellant,
v.
Chicago Transit Authority
and David Mosena,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois.
No. 97 C 7923--Charles R. Norgle, Sr., Judge.
Argued January 16, 2001--Decided May 10, 2001
Before Flaum, Chief Judge, and Coffey and
Rovner, Circuit Judges.
Coffey, Circuit Judge. On November 13,
1997, Lorene Murray filed suit against
the Chicago Transit Authority pursuant to
Title VII of the Civil Rights Act of
1964, 42 U.S.C. sec. 2000e, et seq., and
alleged that CTA President David Mosena
sexually harassed her and retaliated
against her for refusing his sexual
advances. She later added a 42 U.S.C.
sec. 1983 civil rights discrimination
claim against Mosena in his individual
capacity. At the conclusion of Murray’s
case in chief, the district court orally
granted defendants’ motion for judgment
as a matter of law, Fed. R. Civ. P.
50(a). Murray appeals, arguing that the
district court erred in granting
defendants’ 50(a) motion and also erred
in various evidentiary rulings dealing
with her expert witnesses. We affirm.
I. FACTUAL BACKGROUND
Lorene Murray began working for the CTA
in 1979 as a staff attorney in the
corporate department. In 1992 Murray was
promoted to Senior Vice-President of
Legal Affairs. Her duties included
overseeing the day-to-day operations of
the Law Department’s 116 employees. In
the fall of 1995, Murray received an
award for work relating to a financing
transaction she had put together that
brought $50 million to the CTA. Around
the same time, the CTA Chairman of the
Board, Valerie Jarrett, addressed CTA’s
budget problems, issuing a policy that
prohibited two CTA representatives from
the same department from traveling to the
same conference. Jarrett’s policy,
however, was never strictly enforced by
then-CTA President Robert Belcaster.
But on September 3, 1996, Mosena, who
had recently been hired as CTA President,
issued a memorandum that placed a
moratorium on the travel of all CTA Vice-
Presidents, General Managers, and
Managers, and stated that exceptions to
the moratorium would be made only if
"there is a compelling business reason."
Three days after Mosena released his
memorandum, CTA General Counsel William
Farley informed Jarrett that he and
Murray were both scheduled to speak at
the annual meeting of the American Public
Transit Association ("APTA"). Farley
explained to Jarrett that his travel
expenses would be "invoiced on the
outside counsel line item," but that
Murray’s "would be taken out of CTA’s
’travel’ line item which currently is
undergoing great scrutiny." Farley asked
Jarrett for her thoughts on the matter,
and she told him that Murray should speak
with Mosena.
On September 23, 1996, Murray submitted
a written request to Mosena for the CTA
to pay her expenses in relation to the
October APTA conference. Three days
later, Murray met with Mosena and asked
whether her paperwork for the conference
had been completed. According to Murray,
Mosena responded that he had her
paperwork and asked if she were staying
at the convention hotel. Murray told him
that she was instead staying at the
Disneyland Hotel, just down the block
from the convention hotel. At this point,
Murray alleged that Mosena said, "[w]ell,
then you’ll be able to have drinks and
dinner with me." When Murray informed him
that her husband and daughter were coming
with her, Mosena told her that "[she
didn’t] understand. I want to have dinner
and drinks alone with you." Unsure how to
respond, Murray told Mosena that maybe
she could make some arrangements. She
claimed that Mosena then told her "you
have to learn who the boss is around
here," and that her travel request would
not be approved. Murray explained that
she was a scheduled speaker, that the
programs had been printed, that the trip
had been arranged for some time, and that
there was money in the budget for her to
go. Mosena allegedly responded "maybe now
you’ll learn who the boss is."
Later that day, upset by Mosena’s
comments, Murray told her husband about
the conversation with Mosena and her
belief that Mosena had made a sexual
advance, but she did not share her belief
with any CTA official. Sometime later she
told Farley that she could not attend the
conference, but did not tell him any of
the details of her conversation with
Mosena. Farley spoke with Jarrett on
Murray’s behalf, but Jarrett told him
that she would stand by Mosena’s decision
and that Murray would not be able to
attend the conference. On September 30,
Murray spoke with Mosena on the telephone
and told him that she would attend the
conference, but pay her own expenses.
Mosena told her that he was glad she
called and that it "would have been a
whole lot cheaper [his] way."
After the conversations with Mosena,
Murray claims that her working
environment changed for the worse. For
example, at an October 1996 vice
president’s meeting, Murray claimed that
Mosena publicly ridiculed her by stating
that "[she] handled the turnstile
incident [in which a young boy caught his
head in a CTA turnstile] the same way
that Federico Pena had handled the Value
Jet crash, and like him, [she] was going
to be out of a job." Murray also alleged
that, at the same meeting, Mosena
announced that the law department would
no longer attend the regular executive
meetings. Murray, however, had never
attended such meetings in the past, and
no law department personnel, including
Farley, attended these meetings
thereafter.
Murray also alleged that Chairman
Jarrett contributed to her worsening
working environment. For instance, in
January 1997, Jarrett instructed Farley
to remove Murray from the committees on
which she had been a member. Jarrett,
however, testified that she told Farley
that she wanted the lawyers to advise the
committees, rather than sit on them as
voting members. Later, after Farley left
the CTA as General Counsel, Jarrett hired
Duncan Harris, who had previously worked
with Jarrett and Mosena for the City of
Chicago, without conducting interviews of
any of the people Farley had listed as
possible replacements, including Murray.
According to Murray, Harris also
contributed to her deteriorating working
environment. Murray claimed that in 1997
Harris cancelled a luncheon that Murray
was scheduled to attend, took away her
CTA-issued cellular telephone, reassigned
her CTA-car to the CTA pool, and asked
her to review cellular phone bills dating
back to December 1995 and pay for her
personal calls. It is interesting to note
that the record reflects that Harris
requested that all other law department
personnel return their phones and cars
and review their phone records as well.
Further, Murray alleged that shortly
after Harris became General Counsel, he
stopped assigning work to Murray’s
husband, who worked for the CTA as a per
diem attorney.
Murray claims as a result of Mosena’s
harassment (and subsequent retaliation
against her), she became depressed,
anxious, and even suffered from post-
traumatic stress disorder ("PTSD")./1
Accordingly, she began a disability leave
of absence on June 4, 1997. Prior to
taking leave, Murray had told no one at
the CTA that Mosena had sexually harassed
her or retaliated against her for declin
ing a sexual advance. Later in June,
Murray’s husband met with the CTA’s
outside counsel and told them of Mosena’s
harassment who thereafter investigated
Murray’s complaints. In July Murray filed
a charge of discrimination with the Equal
Employment Opportunity Commission,
alleging that Mosena had sexually
harassed her between September 26, 1996
and May 13, 1997. Murray’s complaint
alleged three separate bases for recovery
on her sexual harassment claim: 1)
hostile work environment harassment; 2)
quid pro quo harassment; and 3)
retaliation for exercising a statutorily
protected right to object to conduct
prohibited by Title VII.
After the EEOC denied her claim and
issued a right-to-sue letter, Murray
timely filed this suit. Three days into
the trial, during her case-in-chief,
Murray attempted to introduce, under
Federal Rule of Evidence 804(b)(1), the
deposition testimony of a psychiatrist,
Dr. Leonard Weiss, who treated Murray in
1997 and 1998 to show that Mosena’s
sexual harassment had caused Murray’s
anxiety, depression, and PTSD. In support
of the motion, Murray’s counsel informed
the district court that Dr. Weiss had
been hospitalized and thus was
unavailable for trial. Counsel, however,
did not know where or for what Dr. Weiss
had been hospitalized--indeed, counsel
had been unable to locate Dr. Weiss
altogether. The district court excluded
Dr. Weiss’s deposition testimony, noting
that defendants had not had the
opportunity to fully depose Dr. Weiss (in
particular the defendants had not had a
chance to depose Dr. Weiss concerning his
report prepared and filed pursuant to
Federal Rule of Civil Procedure 26, which
had not been completed until after his
initial deposition), and that the
"suspicious circumstances" surrounding
his unavailability would unfairly deprive
defendants of the opportunity to cross-
examine him regarding his credibility and
the soundness of his opinions about the
cause of Murray’s PTSD. After this
ruling, Murray moved to admit Dr. Weiss’s
Rule 26 report, but the district court
denied this motion for largely the same
reasons as it denied Murray’s motion to
introduce Dr. Weiss’s deposition
testimony. Without any testimony from Dr.
Weiss on the cause of her PTSD, Murray’s
counsel then moved to use a rebuttal
expert in the case-in-chief. The district
court denied this motion as well, finding
that the magistrate had not erred in
limiting that expert’s testimony to
rebuttal.
Out of options to present expert
testimony, Murray then moved for a
mistrial because of her inability to
present expert testimony and the district
court denied this motion as well. At the
close of Murray’s case, the defendants
moved for judgment as a matter of law
under Federal Rule of Civil Procedure
50(a). The district court granted
defendants’ motion, finding that Murray
had not established that Mosena’s conduct
had been "sufficiently severe or
pervasive to alter the conditions of
[Murray’s] employment." Murray appeals.
II. ISSUES
On appeal Murray argues that: 1) the
district court erred in granting
defendants’ judgment as a matter of law
on all three counts; 2) the district
court erred in its evidentiary rulings
relating to the introduction of the
testimony of her expert witnesses.
III. DISCUSSION
We review de novo the grant of a Rule
50(a) judgment as a matter of law. Massey
v. Blue Cross-Blue Shield of Ill., 226
F.3d 922, 924 (7th Cir. 2000). Under Rule
50, a court should render judgment as a
matter of law when "a party has been
fully heard on an issue and there is no
legally sufficient evidentiary basis for
a reasonable jury to find for that party
on that issue." Fed R. Civ. P. 50(a); see
also Reeves v. Sanderson Plumbing Prod.,
Inc., 120 S. Ct. 2097, 2109 (2000). The
standard for granting judgment as a
matter of law "mirrors" the standard for
granting summary judgment. Reeves, 120
S.Ct. at 2109 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250-51
(1986)). Thus, as we examine the record
in its entirety, we view the evidence in
the light most favorable to the party
against whom judgment was granted.
Massey, 226 F.3d at 924.
In addition, we note that the standard
of proof as to what constitutes sexual
harassment under sec. 1983 is essentially
the same as that under Title VII. See,
e.g., King v. Board of Regents of Univ.
of Wis. Sys., 898 F.2d 533, 537 (7th Cir.
1990); Bohen v. City of East Chicago,
Ind., 799 F.2d 1180, 1186 (7th Cir.
1986).
A. Sexual Harassment Claims
Although Murray brought her claims under
the commonly used categories of "hostile
work environment" and "quid pro quo"
harassment, we note that in Burlington
Indus. v. Ellerth, 524 U.S. 742, 760-65
(1998), and Faragher v. City of Boca
Raton, 524 U.S. 775, 807 (1998), the
Supreme Court abandoned these commonly
used categories, opting instead to
distinguish between cases in which the
supervisor takes a tangible employment
action against the subordinate and those
in which he does not. See also Mosher v.
Dollar Tree Stores, Inc., 240 F.3d 662,
666 (7th Cir. 2001); Molnar v. Booth, 229
F.3d 593, 599-600 (7th Cir. 2000). The
employer’s liability in all kinds of
cases is determined under agency
principles, as the Supreme Court has
enunciated them. Molnar, 229 F.3d at 600.
In general, employers bear vicarious
liability for the harassment committed by
a supervisor in accordance with the
following rules as summarized in
Faragher:
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. When no tangible employment
action is taken, a defending employer may
raise an affirmative defense to liability
or damages, subject to proof by a
preponderance of the evidence . . . . No
affirmative defense is available,
however, when, the supervisor’s
harassment culminates in a tangible
employment action, such as discharge,
demotion, or undesirable reassignment.
Faragher, 524 U.S. at 807-08.
Thus, the question of "whether the
harassment led to a tangible employment
action is critical. If so, [the CTA] was
liable without more; if not, [the CTA]
was entitled in principle to the
opportunity to show (1) that it exercised
reasonable care to prevent and correct
promptly any sexually harassing behavior,
and (2) that [Murray] failed to take
advantage of any preventive or corrective
opportunities provided by her employer to
avoid harm otherwise." Molnar, 229 F.3d
at 600 (citing Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807).
Here Murray contends 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; see also Molnar, 229
F.3d at 600 (citing Ellerth, 524 U.S. at
761); Ribando v. United Airlines, 200
F.3d 507, 510-11 (7th Cir. 1999) (citing
Ellerth, 524 U.S. at 761). "Tangible
employment actions are the means by which
the supervisor brings the official power
of the enterprise to bear on
subordinates. A tangible employment
decision requires an official act of the
enterprise, a company act." Ellerth, 524
U.S. at 762.
Murray argues that Mosena’s refusal to
approve her travel plan to the October
APTA conference after she rejected his
dinner invitation constitutes a tangible
employment action. We have noted,
however, that "not everything that makes
an employee unhappy is an actionable
adverse action. Otherwise, minor and even
trivial employment actions that ’an . . .
employee did not like would form the
basis of a discrimination suit.’" Smart
v. Ball State Univ., 89 F.3d 437, 441
(7th Cir. 1996) (citation omitted). The
isolated, and relatively minor, actions
Murray alleged did not significantly
affect her job responsibilities or
benefits, and therefore, cannot be a
"tangible employment action." See, e.g.,
Fyfe v. City of Fort Wayne, No. 00-1396,
2001 WL 171173, *4 (7th Cir. Feb. 22,
2001) (denial for reimbursement for
travel and lodging expenses at seminar
not an adverse employment action); Oest
v. Illinois Dep’t of Corr., No. 99-3883,
2001 WL 122111 (7th Cir. Feb. 14, 2001)
(negative performance evaluations not
adverse employment actions); Bell v.
Environmental Prot. Agency, 232 F.3d 546,
555 (7th Cir. 2000) (cancelling a
conference called by plaintiff and
failing to greet her or speak to her were
trivial matters that were not adverse
employment actions).
Murray also argues that she suffered a
tangible employment action when Jarrett
failed to interview her for the General
Counsel position and when Harris took
away her cell phone, reassigned her CTA
car to the car pool, and asked her to
review her cell phone bills. But Murray
has failed to tie these actions to the
alleged sexual harassment by Mosena.
Although Murray argues that the
"extremely close and personal
relationship between Mosena and Jarrett"
supports an inference that they worked
together to "make her life intolerable,"
her mere speculation is insufficient to
establish that Mosena enlisted Jarrett
(his own boss) and Harris to help him
harass Murray. See, e.g., Miller v.
American Family Mut. Ins. Co., 203 F.3d
997, 1008 n.9 (7th Cir. 2000)
(plaintiff’s "subjective belief that her
supervisors knew her complaints . . .
will not create the factual dispute
needed to ward off summary judgment");
Chiaramonte v. Fashion Bed Group, Inc.,
129 F.3d 391, 401 (7th Cir. 1997) ("if
the subjective beliefs of plaintiffs in
employment discrimination cases could, by
themselves, create genuine issues of
material fact, then virtually all defense
motions for summary judgment in such
cases would be doomed"). This court "has
typically been skeptical of such
elaborate plot theories." Konowitz v.
Schnadig Corp., 965 F.2d 230, 234 (7th
Cir. 1992). Further, many of the actions
taken by Jarrett and Harris were merely
policy changes that affected a large
class of employees, and certainly were
not directed toward Murray specifically.
Accordingly, Murray failed to establish
that she suffered a tangible employment
action.
Murray also argues that, even if she did
not suffer a tangible employment action,
Mosena subjected her to a sexually
harassing work environment and that the
CTA is not entitled to the Ellerth
affirmative defense. Murray alleged only
two conversations with Mosena that could
be viewed as sexual: 1) the September 26,
1996 conversation in which Mosena told
her that he wanted "to have dinner and
drinks alone with [her]." and 2) the
September 30, 1996, telephone
conversation in which he told her that it
"would have been a whole lot cheaper his
way."
To be actionable, "the conduct at issue
must ’ha[ve] the purpose or effect of
unreasonably interfering with an
individual’s work performance or creating
an intimidating, hostile, or offensive
work environment.’" Filipovic v. K & R
Express Sys., Inc., 176 F.3d 390, 397
(7th Cir. 1999) (quoting Saxton v.
American Tel. & Tel., Co., 10 F.3d 526,
533 (7th Cir. 1993)). Further the conduct
at issue must be sufficiently severe or
pervasive such that "a reasonable person
would find it hostile and [that] the
victim [herself] subjectively sees as
abusive." Id. (citing Ngeuntjuntr v.
Metropolitan Life Ins. Co., 146 F.3d 464,
467 (7th Cir. 1998)). In determining
whether conduct rises to the level . . .,
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.’" Mosher,
240 F.3d at 668 (quoting Faragher, 524
U.S. at 787-88).
Mosena’s two dinner invitations arguably
are not sufficient, in themselves, to
constitute a sexually harassing work
environment. See, e.g., DiCenso v.
Cisneros, 96 F.3d 1004, 1008-09 (7th Cir.
1996) (holding that landlord’s invitation
for plaintiff to exchange sex for rent
was not actionable sexual harassment
under Title VII); Koelsch v. Beltone
Elec. Corp., 46 F.3d 705, 707 (7th Cir.
1995) (holding that supervisor’s comment
that he could not control himself around
plaintiff and two invitations to drinks
and dinner did not poison the work place
and rise to the level of actionable
sexual harassment); Saxton, 10 F.3d at
533-34 (7th Cir. 1993) (two incidents of
misconduct by supervisor involving
inappropriate remarks and impermissible
touching not actionable); Weiss v. Coca
Cola Bottling Co., 990 F.3d 333, 337 (7th
Cir. 1993) (co-worker’s incidents of
unwanted touching, attempts to kiss, and
placing "I love you" signs in plaintiff’s
workplace did not create hostile work
environment). Although the alleged
"dinner invitations," which Murray
construed as sexual invitations, may be
potentially more serious than the types
of harassment at issue in Koelsch,
Saxton, and Weiss, "[c]ommon to all of
these examples is an emphasis on the
frequency of the offensive behavior."
DiCenso, 96 F.3d at 1008. Had Murray
complained more promptly or had there
been additional "dinner invitations," we
might very well have a different case.
But Murray waited nine months before she
raised the issue and there is no evidence
that during those nine months, Mosena
sexually harassed her or that her work
environment was otherwise rendered
objectively hostile. The undisputed facts
establish that the CTA had adopted a
sexual harassment policy (that included
an autonomous department within the CTA
to investigate complaints of sexual
harassment) and that Murray failed to
report any of Mosena’s actions and thus
had failed to take advantage of the CTA’s
sexual harassment policy. In short,
Murray "acted in precisely the manner a
victim of sexual harassment should not
act in order to win recovery." Shaw v.
Autozone, Inc., 180 F.3d 806, 813 (7th
Cir. 1999) (emphasis in original).
Although Murray claims that she feared
further harassment if she reported her
actions, her "subjective fears of
confrontation, unpleasantness, or
retaliation do not alleviate [her] duty
under Ellerth to alert the employer to
the allegedly hostile environment." Id.
Accordingly, Murray failed to establish a
legally sufficient basis for a reasonable
jury to conclude that Mosena sexually
harassed her, and the district court’s
Rule 50(a) judgment was proper.
B. Retaliation
Murray also claimed that Mosena
retaliated against her after she rejected
his alleged sexual advances. Title VII
makes it unlawful "for an employer to
discriminate against any of his employees
. . . because he [or she] has opposed any
practice made an unlawful employment
practice [by Title VII]." 42 U.S.C.
2000e-3(a). To establish a prima facie
case of retaliation under Title VII,
Murray had to establish that "(1) she
engaged in what our case law refers to as
’statutorily protected expression’ (i.e.
reporting or otherwise opposing conduct
prohibited by Title VII, such as sexual
harassment), (2) she suffered an adverse,
job-related action by her employer . . .
and (3) there is a causal link between
her opposition to unlawful discrimination
and [the adverse action]." Gleason v.
Mesirow Fin., Inc., 118 F.3d 1134, 1146
(7th Cir. 1997) (citing McKenzie v.
Illinois Dep’t of Trans., 92 F.3d 473,
483 (7th Cir. 1996)).
Murray further contends that her
rejection of Mosena’s advances
constituted a statutorily protected
activity within the meaning of Title VII.
But Murray cites no case law, and we were
able to find no Seventh Circuit
precedent, supporting the premise that
the rejection of a sexual advance can
serve as a statutorily protected activity
for the purposes of establishing a Title
VII retaliation claim./2 But we need not
decide whether a plaintiff who rejects a
sexual invitation from a supervisor has
met the first element of a claim for
retaliation because, as discussed above,
Murray failed to demonstrate that she
suffered an adverse employment action.
Accordingly, Murray did not present
sufficient evidence to establish a prima
facie case of discriminatory retaliation,
and the district court properly granted
defendants’ Rule 50(a) motion with
respect to Murray’s retaliation claim.
C. Evidentiary Issues
Murray’s remaining issues relate to the
exclusion of expert evidence of the
psychological effects of Mosena’s alleged
harassment. This evidence, however, was
only relevant to the issue of Murray’s
damages. Accordingly, because we hold
that the district court’s order granting
the defendants’ Rule 50(a) motion as to
liability was proper, these evidentiary
rulings are moot.
IV. CONCLUSION
Murray has failed to establish that a
genuine issue of material fact exists in
her employment discrimination claim. We
agree with the district court’s decision
holding that Murray has failed to
establish that she suffered a tangible
employment action when the CTA did not
pay her travel expenses to the APTA
conference. We further agree with the
district court that Mosena’s two alleged
dinner invitations were insufficient to
create an objectively hostile work
environment and that, in any event,
Murray, based on unreasonable
assumptions, failed to take advantage of
the CTA’s policy for reporting sexual
harassment. Accordingly, the district
court properly granted defendants’ Rule
50(a) motion as to all counts.
AFFIRMED.
FOOTNOTES
/1 Post-Traumatic Stress Disorder appears
"after a physically or psychologically
traumatic event outside the range of
usual human experience, (e.g., a serious
threat to one’s life or seeing a loved
one killed)" and is "characterized by
symptoms of re-experiencing the event,
numbing of responsiveness to the environ-
ment, exaggerated startle response, guilt
feelings, impairment of memory, and dif-
ficulties in concentration and sleep."
Stedman’s Medical Dictionary 1764 (27th ed.
2000).
/2 While we found no Seventh Circuit prece-
dent on the issue, we did find district
court opinions discussing whether the
rebuff of an advance can qualify as a
protected activity for purposes of a
retaliation claim. See Black v. City &
County of Honolulu, 112 F. Supp. 2d 1041,
1049 (D. Haw. 2000) (noting the division
of authority among district courts and
collecting cases).