Berry, Elise N. v. Delta Airlines Inc ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3631
Elise N. Berry,
Plaintiff-Appellant,
v.
Delta Airlines, Incorporated,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5770--James B. Zagel, Judge.
Argued April 2, 2001--Decided August 14, 2001
Before Bauer, Cudahy, and Easterbrook,
Circuit Judges.
Bauer, Circuit Judge. Elise Berry
appeals the district court’s grant of
summary judgment in favor of Delta
Airlines on her Title VII claim of sexual
harassment. We affirm.
BACKGROUND
Berry was employed as customer service
agent at Delta’s cargo facilities at
O’Hare Airport in Chicago. Her job
sometimes required her to enter the
warehouse portion of Delta’s cargo
building and to work with employees of
Argenbright Security ("Argenbright"), a
company which Delta had contracted to
provide baggage handling services. Fikret
Causevic worked for Argenbright at the
Delta cargo facilities as a warehouse
supervisor.
On July 7, 1999, Berry met with Roger
Blocker, a Delta regional manager, and
complained that Causevic had been
sexually harassing her both verbally and
physically for over eight months. Berry
provided Blocker with a litany of
examples, including claims that Causevic
slid his hand up her shorts to her panty
line and told her that he loved her
smooth legs, pulled her blouse away from
her chest and tried to look down her
shirt at her breasts, repeatedly asked
her if she would take him up on his
"proposition" (for sex) and if she would
go with him on a "very, very long ride
home," referred to her as his
"girlfriend" in front of others, asked
her on a date, told her he thought her
"butt" and legs were "sexy," and tried to
touch or embrace her inappropriately on
various occasions. In addition, Berry
claimed that, beginning in April, 1999,
every time she called or visited the
warehouse seeking work-related assistance
from Causevic, he would answer her
requests with cheeky comments such as
"give me a kiss first," "what will you do
for me," or "only if you go on a long
ride with me."
Blocker immediately began to investigate
Berry’s complaint./1 On the very day
that Berry complained about Causevic,
Blocker contacted Delta’s Equal
Opportunity ("EO") Office at Delta’s
Atlanta headquarters to request guidance
on how to handle Berry’s complaint.
Pursuant to directions from the EO
office, Blocker met with Berry again that
day to tell her that he intended to
investigate her complaint. He asked Berry
what she thought he should do about the
situation. Berry told him that she only
wanted Causevic to stop harassing her and
to be kept away from her, and that she
did not want to get him fired. Berry also
opined that the Argenbright employees
needed better training regarding
appropriate behavior in the workplace,
and that they should be disciplined when
they acted inappropriately. During one of
their meetings, Berry mentioned to
Blocker that Illiana Torres, a friend and
co-worker of Berry’s, was present during
one of the harassing episodes and might
be able to corroborate Berry’s complaint
regarding that incident. Blocker asked
Berry to submit a written statement
detailing her complaints concerning
Causevic.
The next day, after receiving Berry’s
written statement, Blocker reported the
matter to Causevic’s supervisor, Rodney
Drake. Blocker and Drake then immediately
confronted Causevic with Berry’s
allegations. After Causevic denied
everything, Drake and Blocker instructed
him to put his response in writing.
Shortly thereafter, Berry met with
Blocker again to report an additional
incident of harassment which she claimed
to have been too embarrassed to mention
during their previous meetings.
Specifically, Berry claimed that in April
of 1999, while she was lifting the back
of her shirt to show some of the
warehouse employees the sunburn that she
had acquired on a recent vacation,
Causevic approached her from behind, put
his arm around Berry’s waist and tried to
touch her breasts. Berry told Blocker
that Jaron Ketchum, another Argenbright
employee, had witnessed the event.
Blocker promptly began interviewing
potential witnesses to the claimed
harassment. He first spoke with Torres,
who said that on one occasion she
overheard Causevic ask Berry if she had
thought about his "proposition," to which
Berry responded "no." Torres stated that
Causevic then said that he was "serious,"
and that Berry again told him "no" and
asked her to leave her alone. Blocker
asked Torres to me-morialize this in a
written statement, which she did. Torres
did not confirm any other claims made by
Berry. Moreover, shortly after hearing
Berry’s additional complaint con-cerning
the sunburn incident, Blocker informed
Drake of the new allegation and asked him
to get a statement from Ketchum regarding
the incident. Upon Drake’s request,
Ketchum provided a written statement
which neither corroborated nor
contradicted Berry’s account of the
incident (it merely stated that he wanted
to be "left out of the situation" for
"personal reasons."). Blocker then spoke
with Ketchum in person and asked him if
he has witnessed the sunburn incident,
but Ketchum repeated that he did not want
to get involved. Undaunted, Blocker met
with Ketchum a second time on or about
June 11, 1999, which was Ketchum’s last
day of work. Ketchum again refused
toprovide a written statement, preferring
to stay out of the situation. However,
this time Blocker then asked Ketchum to
tell him "off the record" if he could
confirm any of Berry’s claims. The
parties dispute what Ketchum said in
response. Berry points to Ketchum’s
deposition, wherein Ketchum asserts that
he told Blocker that he saw Causevic make
"flirtatious remarks" to Berry and,
during the sunburn incident, hug her
around the stomach from behind and touch
her leg below the knee. Delta relies on
Blocker’s deposition, wherein Blocker
claims that while Ketchum gave him the
impression that he might have seen
something, he refused to give any details
of what he might have seen. Blocker also
testified that Ketchum expressly denied
ever seeing Causevic grab Berry from
behind around her breasts. Blocker also
interviewed other Delta agents who worked
with Berry. Two of the agents repeated
concerns that they had expressed to
Blocker earlier about Argenbright
employees using offensive profanity in
the warehouse, but none of them confirmed
any of Berry’s allegations, and some of
them said that they had never seen
Causevic do or say anything of a sexually
inappropriate nature.
On June 18, 1999, Blocker informed Berry
that he was unable to confirm that her
allegations were true. However, Delta
management did take some corrective
measures shortly after Blocker concluded
his investigation. Around June 21, 1999,
Delta management set up a sexual
harassment video in the back customer
service area and directed all Delta
employees to watch the video on their
free time and to sign a log indicating
that they had done so. The vid-eo was one
that Delta employees were required to
watch every year. Upon Blocker’s request,
Drake required all Argenbright employees
to watch the video as well. However,
Blocker did not discussed the content of
the video with any of the employees.
Moreover, some time around July 3, 1999,
Blocker asked Drake to change Causevic’s
shift to elimin-ate or significantly
reduce interaction between Causevic and
Berry. Drake complied, and Causevic was
moved to a day shift. While he suspected
that Berry’s complaint was the reason for
his shift change, Causevic was never told
this, nor was he ever told to keep away
from Berry or reprimanded for any of his
alleged improprieties. After the shift
change, Berry’s and Causevic’s shifts
overlapped for approximately one and one-
half hours each day, and she continued to
have contact with him on several
occasions during those times.
After she complained to Blocker about
Causevic, Berry experienced what she
characterizes as continuing campaign of
sexual harassment perpetrated by Causevic
and other Argenbright employees. For
example, while Berry was watching the
sexual harassment video in the presence
of another Delta agent on June 23, 1999,
Causevic entered the room and said in a
mocking fashion, "Oh, you’re watching
this video because of me, right, Elise?"
As Berry was leaving later that day,
Causevic derisively quipped, "Bye
everybody, I have to stay here because I
have to watch my video now," whereupon
Causevic and another employee began
laughing. In addition, as Causevic was
leaving the premises with his wife in
August of 1999 on his last day of work,
Causevic’s wife called Berry a "bitch."
Finally, on various occasions in June and
July, several Argenbright employees
(including Causevic) were rude and
uncooperative towards Berry, making it
difficult for her to perform her job. For
example, one Argenbright employee refused
to help Berry with an international air
bill in front of a customer. Others
(including Causevic) would not listen to
Berry when she attempted to communicate
with them, forcing her to write down
work-related information and hand it to
them. Causevic repeatedly stonewalled
Berry when she sought his assistance
regarding customer service or inventory
by either hanging up the phone when she
called him, or by walking away or simply
ignoring her when she made her requests
in person. At times these incidents
caused Berry so much stress and
embarrassment that she would break down
and cry at work.
Berry complained to Blocker about these
incidents on several occasions,
characterizing the situation as a
"hostile environment" and demanding that
Blocker take steps to rectify it
immediately. Nevertheless, Berry
maintains that Blocker brushed off her
complaints that Causevic and other
Argenbright employees were giving her the
"cold shoulder," telling her at various
times that the situation "would pass" and
that she should "just give it a week or
two," and that she had to expect that
type of behavior because some of the
employees were friends of Causevic and
didn’t like that she had accused him of
harassment. Berry told Blocker that she
did not feel that she should have to work
with Causevic, she objected that nothing
was being done about the ongoing
harassment. However, Causevic was never
reprimanded or told to leave Berry alone.
Moreover, Blocker informed Berry that
someone had told him that Berry had once
put her feet up on a desktop and
intentionally spread her legs so men
could look down her shorts and that she
had lifted up her shirt in the workplace,
and he instructed Berry not to send mixed
messages to the men in the warehouse.
Berry admits that the sexual component
of the harassment stopped as soon as she
made her original complaint to Blocker;
during her deposition, she characterized
the subsequent acts by Causevic and the
other employees as retaliatory and not
sexual, and she admitted that throughout
the remainder of her employment at Delta
she was never again subjected to any
conduct or language of a sexually
inappropriate nature by Causevic or any
other employee.
On July 15, 1999, Berry filed a charge
with the Equal Employment Opportunity
Commission ("EEOC") and the Illinois
Department of Human Rights ("IDHR")
claiming that she had been subjected to a
hostile work environment and retaliated
against for complaining about the harass
ment. On August 10, the EEOC issued a
right to sue letter. Approximately one
month later, Berry quit her job and gave
Blocker a written resignation letter
which stated that her working environment
was too hostile and stressful for her to
bear. Less than one week before quitting,
Berry filed a single-count complaint in
the district court naming Delta and
Argenbright as defendants. In the
complaint, Berry sought relief under
Title VII, claiming that Delta and
Argenbright "failed to take prompt and
appropriate corrective action to remedy a
hostile work environment" created by
Causevic’s sexual harassment. The
complaint did not state that Causevic or
any other employee had retaliated against
Berry for complaining about the
harassment. On April 12, the district
court dismissed all claims against
Argenbright. Delta then moved for summary
judgment.
The district court granted Delta’s
motion, reasoning that Delta was not
liable for the claimed harassment which
occurred prior to Berry’s initial
complaint to Blocker because upon
learning of the harassment it "took steps
reasonably likely to prevent" further
harassment (i.e., Blocker and Drake
convinced Causevic to change shifts,
which promptly stopped him from making
further propositions or sexually
suggestive comments). Moreover, the
district court found that by all
accounts, all gender-based harassment
ceased after Berry first complained to
Blocker, and that the post-complaint
harassment was by Berry’s admission
retaliatory. The court rejected Berry’s
argument that this retaliatory harassment
was a continued form of sexual
discrimination, and since Berry neither
alleged a claim of retaliation in her
complaint nor argued that theory in
opposition to Delta’s summary judgment
motion, the district court held that
there was no genuine issue of material
fact for trial, and dismissed Berry’s
claim. Berry appealed.
DISCUSSION
We review the district court’s grant of
summary judgment de novo, viewing all
facts and drawing all reasonable
inferences in the non-moving party’s
favor. See Spearman v. Ford Motor Co.,
231 F.3d 1080, 1084 (7th Cir. 2000).
Summary judgment is proper when the
record shows that there is no genuine
issue as to any material fact and that
the moving party is entitled to judgment
as a matter of law. Summary judgment must
be entered against a party "who fails to
make a showing sufficient to establish
the existence of an element essential to
that party’s case . . . on which that
party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
Title VII forbids employers from
engaging in actions that "discriminate
against any individual with respect to
his 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). By its terms, this
provision of Title VII proscribes only
workplace discrimination on the basis of
sex, race, or some other status that the
statute protects; it is not a "general
civility code" designed to purge the
workplace of all boorish or even all
harassing conduct. See Spearman, 231 F.3d
at 1086 (citing Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 81
(1998)). Thus, in the context of a sexual
discrimination charge based on a hostile
work environment, "[t]he critical issue .
. . is whether members of one sex are
exposed to disadvantageous terms or
conditions of employment to which members
of the other sex are not exposed."
Oncale, 523 U.S. at 80 (citation
omitted). Inappropriate conduct that is
"inflicted regardless of sex [ ] is
outside the statute’s ambit," Holman v.
State of Indiana, 211 F.3d 399, 403 (7th
Cir. 2000), and an employer cannot be
held liable for creating or condoning a
hostile working environment unless the
hostility is motivated by gender. See
Heuer v. Weil-McLain, 203 F.3d 1021, 1024
(7th Cir. 2000). See Spearman, 231 F.3d
at1085-86 (holding that employer was not
liable under Title VII for sexually
explicit insults directed at employee by
co-employees, where the insults were
meant to "express [the co-employees’]
acrimony over work-related disputes" with
the employee, and "not to harass him
because he is a man"); Sweeney v. West,
149 F.3d 550, 555 (7th Cir. 1998).
Moreover, while Title VII may impose
liability on an employer for the creation
or toleration of a hostile environment
motivated purely by the plaintiff’s
filing of a complaint of sexual
harassment, this is a form of retaliation
rather than sexual harassment, and it
must be argued as such. Heuer, 203 F.3d
at 1024.
Applying these principles, it is clear
that the incidents of workplace
"harassment" which occurred after Berry
complained to Blocker on June 7, 1999,
while unfortunate, are not actionable as
sexual harassment under Title VII (either
collectively or individually) because
Berry has presented no evidence
suggesting that any of these incidents
were motivated by her gender. Even taken
in the light most favorable to Berry, the
evidence presented suggests that all of
the claimed instances of post-complaint
harassment were meant as retaliation for
Berry’s having complained about
Causevic’s prior sexual harassment, and
were not motivated by any anti-female
animus. In her deposition, Berry
testified that Causevic never sexually
harassed her after she complained to
Blocker, and she characterized the post-
complaint harassment as "retaliatory"
rather than discriminatory. Moreover,
none of the claimed incidents of post-
complaint harassment (considered either
singly or together) support the inference
that they were motivated by gender rather
than retaliation. Causevic’s taunting of
Berry regarding the sexual harassment
video clearly seems to have been intended
to insult her because she complained
about Causevic, or to make light of the
fact that the employees had to watch the
video because of Berry’s complaint. (For
example, Berry claims that when she was
watching the video, Causevic said "Oh,
you’re watching this video because of me,
right, Elise?") Berry provides nothing
beyond a conclusory allegation to support
the inference that Causevic’s statements
(or the statements of other Argenbright
employees regarding the video) were
directed at her because she was a woman.
Moreover, nothing in the record suggests
that the "cold shoulder" treatment that
Berry received from Causevic and other
Argenbright employees after her complaint
was motivated by Berry’s sex. Berry has
not claimed that either Causevic or any
other Argenbright employee shunned her or
refused to cooperate with her before she
complained about Causevic, nor has she
offered anything suggesting that the
post-complaint hostility had a gender
basis. In fact, Berry offers absolutely
nothing demonstrating that any of the
claimed incidents of post-complaint were
motivated by Berry’s sex pre se rather
than by a desire to punish her for
complaining about Causevic.
As we have noted, while the creation of
a hostile working environment motivated
purely by the filing of a complaint might
violate Title VII, it can only be
actionable as retaliation--not sexual
harassment--and it must be argued as
such. See Heuer, 203 F.3d at 1024. While
it is true that the claimed campaign of
post-complaint harassment was apparently
conducted in response to Berry’s sexual
harassment complaint, as the district
court recognized, this does not impute a
gender basis to the post-complaint
harassment. See id. at 1022-23. Holding
otherwise would force us to conclude that
"every claim of retaliation for filing
charges of discrimination would be a
claim of discrimination, even thought
Title VII makes discrimination and
retaliation separate wrongs." Id. Berry
did not plead retaliation in her
complaint, nor did she argue a theory of
retaliation to the district court in
resisting Delta’s motion for
summaryjudgment. Therefore, her claims of
retaliatory post-complaint harassment are
irrelevant to the analysis of her sexual
harassment claim.
To escape this conclusion, Berry
advances two arguments. First, she
contends that the district court erred in
granting summary judgment based on her
failure to plead a claim for retaliation.
She notes that Fed. R. Civ. P. 8(a)
requires only that the complaint put the
defendant on notice of possible claims,
and not that it plead particular facts or
reference each of the specific statutory
provisions that might be implicated by
her claim. But even if we accept the
highly questionable premise that Berry’s
complaint successfully stated a claim for
retaliation, Berry waived any such claim
by failing to press it before the
district court. (For reasons that are not
entirely clear to us, Berry did not argue
retaliation before the district court in
opposition to Delta’s motion for summary
judgment, even though her EEOC charge in
cluded a claim of retaliation, and the
EEOC right to sue letter encompassed that
charge as well.)
Second, Berry argues that even though
the instances of post-complaint
harassment were not overtly sexual, they
should be considered along with
Causevic’s earlier, obviously sexual
actions as part of a single, ongoing
gender-based harassment campaign which
was made possible by Delta’s failure to
take prompt and appropriate corrective
action in response to her complaints.
Berry stresses that Title VII’s coverage
is broad and remedial, embracing much
more than patently offensive sexual
behavior in the workplace. See Oncale,
523 U.S. at 80 (". . . harassing conduct
need not be motivated by sexual desire to
support an inference of discrimination on
the basis of sex."). She notes that
"Title VII affords employees the right to
work in an environment free from
discriminatory intimidation, ridicule,
and insult," Meritor Savings Bank v.
Vinson, 477 U.S. 57, 65 (1986), and that
the determination of whether a hostile
environment exists is made "in light of
the record as a whole" and considering
"the totality of circumstances." See id.
at 69. Given this, Berry maintains that
the post-complaint ostracism and other
harassing conduct must be considered as
part of the totality of the circumstances
in determining whether she was forced to
endure an actionable hostile work
environment, even if those actions were
not motivated by sexual desire. See
O’Rourke v. City of Providence, 235 F.3d
713, 729-30 (1st Cir. 2001) (ruling that
"where a plaintiff endures harassing
conduct, although not explicitly sexual
in nature, which undermines her ability
to succeed at her job, those acts should
be considered along with overtly sexually
abusive conduct in assessing a hostile
work environment claim," and that
"incidents of non-sexual conduct--such as
work sabotage, exclusion, denial of
support, and humiliation--can in context
contribute to a hostile work
environment."); Williams v. General
Motors, Corp., 187 F.3d 553, 565-66 (6th
Cir. 1999) (holding that evidence of
several instances in which "the plaintiff
was ostracized when others were not,
combined with gender-specific epithets .
. . such as ’slut’ and ’fucking woman,’
create an inference, sufficient to
survive summary judgment, that [the
plaintiff’s] gender was the motivating
impulse for her co-workers’ behavior.").
We are not persuaded. Title VII does
proscribe gender-based harassment even
when it is not motivated by sexual
desire, and it is true that "[c]ourts
should avoid disaggregating a hostile
work environment claim, dividing conduct
into instances of sexually oriented
conduct and instances of unequal
treatment, then discounting the latter
category of conduct," see O’Rourke, 235
F.3d at 730, thereby robbing instances of
gender-based harassment of their
cumulative effect. However, none of this
helps Berry, because she offers nothing
suggesting that the post-complaint
harassment was motivated by her gender
rather than the desire to punish her for
her complaint. While the cases cited by
Berry correctly stress that gender-based
harassment need not be overtly sexual and
may include ridicule, ostracism, and
other forms of hostility motivated by an
anti-female animus, they do not hold that
hostile behavior by co-workers is
actionable as sexual harassment even if
it not based on gender. See Williams, 187
F.3d at 565 (ruling that a plaintiff must
show that "but for the fact of her sex,
she would not have been the object of
harassment") (citation omitted). While
Berry can likely show that the post-
complaint harassment would not have
occurred but for her complaining of
sexual harassment, this is "too remote a
connection" to gender to convert the
retaliatory harassment into gender-based
harassment. See Heuer, 203 F.3d at 1022.
Therefore, even if Delta was partly
responsible for the abusive post-
complaint atmosphere by not doing enough
to stop it, this would not make them
liable for sexual harassment.
This leaves the question of whether
Delta can be held liable for any of the
claimed harassment which was in fact
motivated by Berry’s sex (for example,
the verbal and physical harassment by
Causevic and other alleged acts by
Argenbright employees which occurred
prior to her complaint to Blocker). An
employer may be held responsible for
coworker on coworker harassment "only if
the employer knew or should have known
about [the coworker]’s acts of harassment
and fails to take appropriate remedial
action." McKenzie v. Illinois Dept. of
Transp., 92 F.3d 473, 480 (7th Cir. 1996)
(citation and internal quotation
omitted). In clarifying the employer’s
duty, we have stated:
If an employer takes reasonable steps to
discover and rectify the harassment of
its employees . . . it has discharged its
legal duty. An employer’s response to
alleged instances of employee harassment
must be reasonably calculated to prevent
further harassment under the particular
facts and circumstances of the case at
the time the allegations are made. We are
not to focus solely upon whether the
remedial activity ultimately succeeded,
but instead should determine whether the
employer’s total response was reasonable
under the circumstances as then existed.
The reasonableness of an employer’s
response depends, in part, on the gravity
of the harassment alleged.
Id. (citations and internal quotations
omitted).
However, it is not immediately clear that
this employer liability standard should
apply here, because Causevic and the
other Argenbright employees were
contractors who were not directly
employed by Delta. Hence, while Causevic
and the other Argenbright employees
worked with Berry, it is not clear that
they were "co-workers" or "co-employee’s"
for purposes of assessing Delta’s
liability under Title VII. Following the
EEOC guideline on the subject, other
circuits have ruled that an employer may
be held responsible for sexual harassment
based upon the acts of non-employees
where the employer "knows or should have
known of the conduct and fails to take
immediate and appropriate corrective
action." 29 C.F.R. sec. 1604.11(e)
(1997); see Lockard v. Pizza Hut, Inc.,
162 F.3d 1062, 1072-74 (10th Cir. 1998)
(collecting cases). See also Waltman v.
Int’l Paper Co., 875 F.2d 468, 479-81
(holding that there was a triable issue
as to whether the employer took prompt
remedial action in response to
allegations of sexual harassment, some of
which involved employees of an
independent contractor); Barbour v.
Browner, 181 F.3d 1342, 1348-49 (D.C.
Cir. 1999) (assuming without expressly
deciding that an employer may be held
liable under Title VII for failing
adequately to protect one of its
employee’s from harassment by employees
of a contractor). To the extent that
these cases provide that an employer can
be held vicariously liable under Title
VII for sexual harassment committed by an
employee of an independent contractor
(and not merely for its own negligence in
addressing the problem), they would
appear to be in tension with recent
Supreme Court precedent, since an
employee of an independent contractor
typically cannot be considered an agent
of the employer. See Burlington
Industries, Inc. v. Ellerth, 524 U.S.
742, 754-60 (1998) (holding that an
employer ordinarily is vicariously liable
for the harassment perpetrated by one of
its employees only to the extent provided
by the law of agency); Faragher v. City
of Boca Raton, 524 U.S. 775, 801-04
(1998). See also EEOC v. Indiana Bell
Telephone Co., Inc., No. 99-1155, slip.
op. (7th Cir. June 27, 2001). However, we
need not decide what significance the
vicarious-liability holdings in Ellerth
and Indiana Bell have for the approach
proposed by 29 C.F.R. 1604.11(e), because
it is clear that Delta would prevail
under either the sec. 1604.11(e) standard
or under the traditional negligence
standard governing an employer’s
liability for co-worker on co-worker
harassment./2
Read in Berry’s favor, the evidence
demonstrates that Delta neither knew nor
should have known of the problem before
Berry complained, and that it took prompt
and appropriate remedial action when she
did. While it is true that Blocker was
aware before June 7 that several
Argenbright employees had used foul
language in the warehouse, and that two
female employees had complained to
Blocker about two occasions in which
Argenbright employees had directed
inappropriate sexual language or graffiti
towards them, none of these incidents
involved Berry or Causevic, and the only
admissible evidence of record shows that
Delta addressed both of the latter
complaints promptly. In addition, despite
the apparent frequency of the
inappropriate language used by
Argenbright employees (at least some of
which was sexually explicit), the
evidence as a whole does not portray a
workplace environment rife with gender-
based harassment or hostility. Thus, none
of the pre-June 7 conduct of which Delta
managers were aware put Delta on
constructive notice of the qualitatively
different (and clearly sexually or gender
motivated) harassment of Berry by
Causevic, and Delta’s duty to take
reasonable steps to rectify the
harassment was not triggered until Berry
made her complaint. See Zimmerman v. Cook
County Sheriff’s Department, 96 F.3d
1017, 1018-19 (7th Cir. 1996).
Moreover, after Berry complained to
Blocker, Delta acted promptly and
appropriately to end the harassment.
Blocker began his investigation
immediately after Berry complained. On
the very day of Berry’s complaint,
Blocker contacted Delta’s EEO office to
report the matter and to receive guidance
on how to proceed. On the following day,
he and an Argenbright supervisor
confronted Causevic with the allegations.
In an effort to corroborate Berry’s
complaint, Blocker promptly interviewed
Torres, along with Causevic’s supervisors
and other Delta employees, and he
interviewed Ketchum on two separate
occasions shortly after Berry identified
him as a witness. Torres told Blocker
that she had heard Causevic ask Berry if
she had thought about his "proposition,"
and (crediting Ketchum’s version of the
events over Blocker’s), Ketchum told
Berry "off the record" that he had
witnessed Causevic sexually harass Berry,
but he refused to state this in writing.
Blocker concluded that this was not
enough to confirm the truth of Berry’s
claims. Nevertheless, within one month of
starting the investigation, Blocker
requested that Argenbright change
Causevic’s shift, and he asked Drake to
require all Argenbright employees to view
a sexual harassment training video which
Blocker also required all Delta employees
to watch. While these measures may have
inspired Causevic and other Argenbright
employees to perform certain retaliatory
actions, they were indisputably effective
in stopping Causevic’s inappropriate
sexual behavior. Berry argues that Delta
should have taken even more aggressive
measures, like separating Causevic and
Berry sooner, insuring that their shifts
never overlapped, ordering Causevic to
leave Berry alone, and organizing
employees to participate in discussion
sections after watching the video.
However, all that Delta was required to
do in order to satisfy its obligations
under Title VII was to take prompt action
reasonably calculated to end the
harassment and reasonably likely to
prevent the conduct from recurring. The
steps taken by Blocker clearly satisfied
this standard. See McKenzie, 92 F.3d at
481 (finding that a defendant’s response
to an employee’s sexual harassment
complaint was reasonable where a meeting
was held within ten days to discuss the
complaint, after which the harasser was
kept from having contact with the
plaintiff, a memo was issued to all
employees regarding the employer’s sexual
harassment policy, and the plaintiff saw
the harasser only once after the meeting
and heard no more harassing comments from
him); Saxton v. A. T. & T. Co., 10 F.3d
526, 535-36 (7th Cir. 1993) (holding that
an employer’s response was both timely
and reasonably likely to prevent the
harassment from recurring even though it
"did not meet [the plaintiff’s]
expectations," and affirming
summaryjudgment for the employer, where
the employer began an investigation the
day after receiving the complaint and
completed the investigation within a
week, and transferred the harasser to
another department within five weeks of
learning that the plaintiff was not
interested in transferring). Delta
doubtless could have done more (for
example, they could have separated
Causevic and Berry immediately, and kept
them separated throughout the course of
investigation), but this is irrelevant
unless Berry can present some evidence
suggesting that the steps that Delta
actually took were not reasonably likely
to prevent the harassment from
recurring./3 See Saxton, 10 F.3d at
536. Berry has not done so.
Contrary to Berry’s suggestion, the
question of whether an employer’s
corrective response to sexual harassment
is reasonable and adequate under the
circumstances is not necessarily one for
the trier of fact, and may be resolved on
summary judgment where the plaintiff
fails to present evidence sufficient to
raise a genuine issue on the matter. See
Parkins v. Civil Constructors of
Illinois, Inc., 163 F.3d 1027, 1035-36
(7th Cir. 1998); McKenzie, 92 F.3d at
480-81; Saxton, 10 F.3d at 535-36. This
is one such case. Berry admits that
Causevic’s sexual overtures definitively
ceased after she complained to Blocker,
and she presents no evidence
demonstrating that any of the subsequent
harassment was gender-based or that
Delta’s efforts to rectify Causevic’s
harassment after receiving Berry’s
complaint were not reasonably likely to
end the harassment. Therefore, Delta
discharged its duty under Title VII and
is entitled to summary judgment even
assuming that Causevic’s pre-June 7
conduct amounted to actionable sexual
harassment.
CONCLUSION
We have considered Berry’s other
arguments and find them meritless. For
the foregoing reasons, we AFFIRM the
district court’s award of summary
judgment.
FOOTNOTES
/1 Berry claims that, in response to her complaint,
Blocker initially said, "boys will be boys."
Blocker denies saying this, although he admitted
that he might have said something to the effect
that some of the warehouse employees acted with
"immaturity." Nevertheless, it is undisputed that
Blocker spent as much time discussing the matter
as Berry wanted, and that he promptly investigat-
ed her claims.
/2 It is undisputed that Causevic had no supervisory
authority over Berry and that he was not employed
by Delta. Therefore, it seems safe to assume that
whatever standard governs Delta’s potential
liability for Causevic’s actions, it cannot be
more onerous that the negligence standard pre-
scribing an employer’s liability for harassment
performed by one of its own employees upon a co-
employee.
/3 We note, however, that the mere fact that the
harassment has stopped after the employer’s
response does not by itself establish the reason-
ableness of the measures taken in response. See
Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir.
1999) ("Just as an employer may escape liability
even if harassment recurs despite its best ef-
forts, so it can also be liable if the harassment
fortuitously stops, but a jury deems its response
to have fallen below the level of due care.").