Haugerud, Faye v. Amery School Dist ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1911
Faye Haugerud,
Plaintiff-Appellant,
v.
Amery School District,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 515--John C. Shabaz, Judge.
Argued October 31, 2000--Decided August 2, 2001
Before Bauer, Kanne, and Rovner, Circuit
Judges.
Kanne, Circuit Judge. Plaintiff-
appellant, a longtime custodial employee
of the Amery School District, alleges
that her employer discriminated against
her on the basis of her sex. She also
contends that the School District created
a hostile work environment and allowed
such an environment to persist. The
district court granted the defendant’s
motion for summary judgment on both of
plaintiff’s claims. For the reasons
stated below, we will affirm the grant of
summary judgment on plaintiff’s sex
discrimination claim, but reverse with
respect to her hostile work environment
claim. Because we are remanding for
further proceedings, we will also vacate
the district court’s award of costs.
I. History
The Amery School District is a public
school district in Amery, Wisconsin with
one high school, two middle schools, and
one elementary school. Faye Haugerud
began working for the School District in
1978, and was hired as a full-time day
custodian at the older of the two middle
schools in 1982. She held that position
until 1992, at which time she transferred
to the new middle school. A 1996 School
District reorganization eliminated the
day position at the new middle school and
created a late-afternoon shift. In
accordance with the collective bargaining
agreement that existed between the School
District and its custodial workers,
plaintiff was given the opportunity to
move to the later position or to transfer
into another custodial position in the
School District. Plaintiff had enough
seniority to permit her to transfer into
a daytime custodial position at the high
school and when she transferred, she
bumped Norm Fougner, a male custodian,
out of his position.
Fougner had several conversations with
Ray Norsted, the District Administrator
of the Amery School District, in which
Fougner questioned Haugerud’s ability to
be a day custodian at the high school.
Norsted, who was in charge of human
resources issues for the School District,
told Fougner that he would try to get his
job back for him. On November 25, 1997,
Norsted told Haugerud that the custodial
changes implemented in 1996 were not
working out and asked her to voluntarily
give up her position at the high school,
so that Fougner could return to it.
Haugerud refused. Plaintiff received
performance evaluations for 1997 and 1998
that indicated her work was
satisfactory/meets expectations.
In August of 1998, two of the three
daytime custodial positions at the high
school were eliminated in order to match
the day custodian schedules at the other
three District schools. Norsted advised
the custodial staff, before any bumping
began, that more maintenance work would
be required of the daytime custodians
than had been required prior to the
reorganization. Norsted also told the
staff to make sure they were qualified
for any position they selected. Plaintiff
felt that, based on her work experience,
she could handle any of the available
custodial jobs. She thus transferred back
to a day position at the intermediate
school.
When LaDonna Clark, the one remaining
day custodian at the high school, left on
sick leave, Fougner filled in for her.
Shortly thereafter, in October 1998,
Clark decided to take early retirement.
Haugerud’s seniority allowed her to take
Clark’s vacated position, which she
elected to do. As a result, Haugerud
again bumped Fougner out of his position
at the high school.
At the time Haugerud elected to return
to the high school, the high school
principal, Dean Sanders, sent a
memorandum to Norsted asking that
Haugerud not be allowed to return because
she was not qualified. Sanders sent the
memo based on his "professional judgment
that Haugerud could not perform the
required maintenance tasks." Sanders did
not ask Joe Mara--the custodial and
maintenance supervisor--for his opinion
or judgment regarding Haugerud’s
ability./1 Haugerud sent a letter to
Norsted and to a number of school board
members in which she protested Sanders’s
request. Though Haugerud was subsequently
allowed to bump into the day custodial
position at the high school, Sanders and
Norsted extended her period of probation
(beyond the twenty day trial period
mandated by the custodian’s union
contract). Haugerud passed her probation
and is, to date, the day custodian at the
high school.
From the time Haugerud returned to the
high school, she was the target of
numerous discriminatory and harassing
incidents. In her view, these incidents
can be divided into four different
groups. First are statements that
allegedly evidence the intent of Norsted
and Fougner to force her to give up her
day custodial position at the high school
so that Fougner could take it. Norsted
asked Doug Anderson, a long-time
custodian, why he had not talked to
plaintiff before she chose to return to
the high school, stating that "you know
as well as I know that she cannot do the
job." Anderson later overheard a
conversation between Fougner and Norsted
during which they talked about assigning
Haugerud extra maintenance duties.
Anderson understood this to mean that
Haugerud would be assigned duties Fougner
had not been required to do. Robert
Thompson, another custodian, came upon
Fougner when he was writing up a work
schedule; Fougner said that he was
writing it up so that there was "no way
in hell" that Haugerud could do the job
on day shift, stating that "this is what
Dean [Sanders] and I want." Two other
custodians--Joe Drinkman and Bob
Thompson--also recounted conversations in
which Fougner had said that "no woman
could do my job," that he was going to
get his job back because Norsted had
promised it to him, and that women
working in the kitchen at the high school
should not get the same pay as men.
Second, Haugerud asserts that a) the
School District issued express
instructions in 1998 that male custodians
were not to assist female custodians and
b) the maintenance people would not
assist her with maintenance tasks even
though her job is primarily custodial.
With respect to the first allegation,
there is no written evidence of this pol
icy, although a number of individuals
testified to its existence. Joyce
Peterson said that Mara told her, in an
August 1998 meeting also attended by
Cheryl Meyer, that "the Board was very
adamant about the night men not helping
the day ladies," i.e., the male
custodians were not to help the female
custodians. Peterson Dep. at 70-72. Also
in the fall of 1998, three male
custodians--Wes Bader, Wayne Jones, and
Keith Bader--told Clark that they were
told not to help any of the female
custodians. Clark Dep. at 38-40. With
respect to the second allegation, Norsted
criticized Brian Elkin (the maintenance,
heating, ventilation, and air
conditioning specialist for the School
District) and Mara (Elkin’s direct
supervisor) in the fall of 1998 for doing
more maintenance work at the high school
than at other schools. While Elkin did
not think this was true, Norsted’s
critique nonetheless caused him to be
more cautious about assisting Haugerud
with maintenance tasks. Elkin has
attempted to help her but has been told
by Mara that Haugerud should do the
maintenance tasks herself, though Mara
did not make such comments when Elkin
helped male custodians with similar
tasks. Both Mara and Elkin do maintenance
work for Leland Paulson, the female day
custodian at the elementary school, but
Mara is reluctant to help Haugerud to the
same extent. Mara told Thompson that
Haugerud "was going to have to make it on
her own, sink or swim." Thompson Dep. at.
66. Haugerud has requested assistance
from the maintenance department on an as
needed basis since the fall of 1998, but
often does not hear back or receives a
delayed response. Haugerud asserts that
she specifically asked Sanders for help
to assemble a desk in 1999, a task that
required more than one person, but he did
not respond and she was forced to enlist
the assistance of her husband. The same
year she was instructed to install a
window, which was also not a one person
job--it took two people to even bring it
into the high school. Nonetheless, Mara
instructed Elkin that he was not to help
Haugerud with the window.
Third, plaintiff asserts that she was
given duties and responsibilities that
were not given to the male custodians.
Generally, the night custodians are
responsible for cleaning the bathrooms at
the high school. When Elkin noticed that
the bathrooms were not cleaned for
several weeks, in the fall of 1998, he
reported it to Mara. Rather than
requesting the night custodians (who are
male) to clean the bathrooms, Sanders
told Haugerud to do it. Plaintiff is now
required to clean restrooms at the high
school though the male day custodian at
the middle school, Joe Drinkman, is not
required to do so. The record does not
reflect whether the other two female day
custodians in the School District are
also responsible for cleaning bathrooms.
Plaintiff’s male co-workers at the high
school have failed to assist in shoveling
snow, a task not assigned to any
particular shift. Plaintiff asked Sanders
to enlist their assistance in the fall of
1998, but they still do not assist, and
Sanders has done nothing to remedy the
problem. In 1998 and 1999, Haugerud and
the two other female custodians at the
high school, including a female night
custodian, were required to shovel snow
in all of the entrances to the high
school, while the male custodians were
not. Snow removal can take plaintiff up
to 2 hours, and therefore it interferes
with her ability to complete other
assigned responsibilities.
The School District has also required
Haugerud to perform a variety of
maintenance tasks that were traditionally
performed by outside contractors or the
maintenance department. In 1999,
plaintiff was instructed to fix doors
that had been newly installed by a door
manufacturer, despite the fact that the
company from which the doors were
purchased should have fixed the doors.
Male custodians have not been required to
fix doors. She was also asked to install
a window, as we noted above, and to
construct a box to hold gym equipment,
both projects that would have been done
by the maintenance department prior to
plaintiff’s arrival at the high school as
the sole day custodian.
Fourth, plaintiff alleges that her
supervisors and co-workers have
intentionally interfered with the
performance of her work duties. From 1998
to 2000, Sanders frequently summoned
plaintiff by beeping her, notwithstanding
the 1998 implementation of a work order
system intended to decrease the
inefficiencies associated with frequent
beeping of the custodians. There were
also several instances of other
custodians hiding the equipment, tools,
and supplies necessary for Haugerud to do
her job. Sanders asked plaintiff to
change the air filters throughout the
high school, and told her that there was
a book indicating the location of all
these filters. When plaintiff could not
find the book, Fougner told her that he
had thrown the book away or taken it home
in a box. To change some of the filters,
plaintiff also needed access to a locked
room. When she asked Mara for a key to
the room, he indicated that there was not
a key or, if there was one, that the key
had been "thrown away." As it turned out,
another custodian (Doug Anderson) had a
key and eventually opened the door for
plaintiff.
Plaintiff describes other instances in
which she was treated differently than
her male colleagues. When plaintiff
worked as a day custodian at the middle
school, if the night custodians
complained about something not being
done, Mara would criticize plaintiff but
would not say anything to the senior day
custodian, Joe Drinkman. In the fall of
1999, while plaintiff worked at the high
school, Sanders approached her in the
hallway and, in the presence of students,
spoke to her in a very loud, angry, and
abusive manner. A teacher who witnessed
the incident, Judy Collins, stated that
she had never observed Sanders treat a
male employee at the high school in the
same way.
Plaintiff also points to the experiences
of the other female custodians. Theresa
Gaudette transferred out of the high
school in March 1999 due to an allegedly
hostile work environment. During the four
months she worked as a night custodian
(from October 1998 to February 1999)
Gaudette noticed that she was assigned a
heavier workload than were her male co-
workers. She was required to shovel snow,
though the male night custodians were not
required to do so--only the female
custodians shoveled snow. Gaudette was
subjected to verbal abuse and cornered by
two of the male custodians, one of whom
challenged her to hit him. When she
informed Sanders of the incident his only
response was to instruct Gaudette and the
other female custodians not to talk to
the male custodians. The male custodian
that took Gaudette’s place, Darold
Lundgren, was not required to perform
many of the duties that she had been
required to perform.
From 1992 through the time of his
resignation in 1999, Brian Hinke (a
custodian and close friend of Mara) made
derogatory comments about women, stating
that they were not qualified to do their
job because they were women and that they
should not be paid as much as men. He
also allegedly hid tools and equipment to
make it more difficult for the female
custodians to do their jobs. Though the
comments were made in Mara’s presence, no
action was taken to correct or remedy the
comments. Likewise, Norsted heard Hinke
and the other male custodians make
similar comments. While he thought the
comments were inappropriate, he did not
take any action. Thompson also witnessed
occasions in 1998 and 1999 when Hinke and
Jim Frederic stated that Haugerud was
"nothing more than a fat-ass bitch."/2
Two co-workers and plaintiff’s husband
complained to the School Board on
Haugerud’s behalf. Mary Nevala, a
longtime school employee who retired in
1996, called two Board members (Sid
Bjorkman and Jane Johnson) in December of
1998 to inform them of the
administration’s harassment of plaintiff.
Both members said that they would "look
into it." Drinkman had three to four
conversations with Bjorkman in which he
told Bjorkman that there was a problem
with the way Mara treated the female
custodians, and that there was a
disparity in what was expected from the
male and female custodians. Bjorkman said
he would "check into it." In 1993,
Drinkman also told Al Moe, another Board
member, that Haugerud was being treated
poorly by Mara and Hinke. Moe indicated
that he would talk to Norsted about the
issue. Finally, Jim Haugerud, plaintiff’s
husband, called Jane Johnson in 1997 or
1998 to discuss problems that plaintiff
was having at work. He told her that
plaintiff was being treated poorly by her
male co-workers.
The School District has had a policy
governing sexual harassment complaints
since 1991. In addition to setting forth
the internal complaint procedure, the
policy states: "In addition to or instead
of this complaint procedure, the
complainant has a right to file a charge
of discrimination with the [EEOC Office
of Civil Rights or the Equal Rights
Division of the Department of Industry,
Labor and Human Relations]." In
accordance with this policy, plaintiff
filed a charge of discrimination with the
Equal Rights Division (ERD). Her ERD
complaint was then filed with the federal
Equal Employment Opportunity Commission
(the EEOC).
Plaintiff filed a complaint in the
United States District Court for the
Western District of Wisconsin, claiming
that defendant discriminated against her
and subjected her to a hostile work
environment because of her gender. The
School District moved for summary
judgment and the district court granted
the motion on March 7, 2000. Costs of
$7,072.93 were awarded on April 14, 2000.
Plaintiff appeals this decision.
II. Analysis
A. Standard of Review
We review grants of summary judgment de
novo. See Myers v. Hasara, 226 F.3d 821,
825 (7th Cir. 2000). Summary judgment is
proper when "the pleadings, depositions,
answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ.
P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986). In
determining whether a genuine issue of
material fact exists, we construe all
facts and inferences in the light most
favorable to the non-moving party,
drawing all reasonable and justifiable
inferences in favor of that party. See
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986). A court should not grant
summary judgment, in a discrimination
case or otherwise, when there are
contestable issues of material fact. See
Wallace v. SMC Pneumatics, Inc., 103 F.3d
1394, 1396 (7th Cir. 1997).
B. Allegations Within the Scope of
Review
Defendant contends that much of
plaintiff’s federal complaint is beyond
the scope of her EEOC complaint and
should not be considered by the court.
"[A] Title VII plaintiff may bring only
those claims that were included in her
EEOC charge, or that are like or
reasonably related to the allegations of
the charge and growing out of such
allegations." McKenzie v. Ill. Dep’t. of
Transp., 92 F.3d 473, 481 (7th Cir. 1996)
(internal quotation and citations
omitted). "The claims are not alike or
reasonably related unless there is a
factual relationship between them. This
means that the EEOC charge and the
complaint must, at minimum, describe the
same conduct and implicate the same
individuals." Cheek v. W. & S. Life Ins.
Co., 31 F.3d 497, 501 (7th Cir. 1994).
"This rule serves the dual purpose of
affording the EEOC and the employer an
opportunity to settle the dispute through
conference, conciliation and persuasion,
and of giving the employer some warning
of the conduct about which the employee
is aggrieved." Id. at 500 (citations
omitted). Additionally, we have
recognized that employees often file the
EEOC charge without the assistance of a
lawyer, thus "a Title VII plaintiff need
not allege in an EEOC charge each and
every fact that combines to form the
basis of each claim in her complaint."
Id.
In light of these standards, we find
that plaintiff’s allegations are
reasonably within the scope of her ERD/
EEOC complaint. Plaintiff’s complaint
alleged that the School District, through
its reorganizations, was eliminating jobs
that were held by women, which is
certainly different than the thrust of
the federal suit. However, this was not
all her ERD complaint alleged:
Workload and duties were created [for the
women] after choosing work site. Job
duties and new maintenance assignment
have created such [ ] stress and low self
esteem that two of the women will be
retiring Oct. 1. Stress from all the
workload and no training in maintenance,
low self esteem from male co-workers
making negative remarks about [how] women
should not receive the same pay as men,
[and that] women should be in a different
classification. Accused of not carrying
our workload. For the past year and a
half my workload has been increased and
with the start of this school year my
workload has become outrageous and
impossible to complete on a daily
schedule.
The allegations of newly imposed
maintenance assignments, negative
comments, and an increased workload are
all allegations made in the federal
complaint. Further, the School District
had no reason to be surprised by the
nature of her legal claims, because her
ERD complaint stated that it was based on
"sex discrimination and harassment." Cf.
Cheek, 31 F.3d at 503-04 (finding that
plaintiff had not provided ample notice
to her employer that she was complaining
of a hostile work environment because
that claim could not even be inferred
from her complaint). While many of the
events discussed in plaintiff’s brief
occurred after she filed her complaint,
most of them occurred shortly after, in
late 1998 and early 1999, and they are
all the types of incidents that one would
reasonably expect to be discovered during
the course of an EEOC investigation into
the allegations in the charge. See id. at
500 (citing Jenkins v. Blue Cross Mut.
Hosp. Ins., Inc., 538 F.2d 164, 167 (7th
Cir. 1976) (en banc)).
Finally, the Board contends that
plaintiff is time-barred from relying on
any evidence of harassment occurring more
than 300 days prior to the date she filed
her EEOC charge. See 42 U.S.C. sec.
2000e-5(e)(1); Wis. Stat. sec. 111.39(1)
(2001). Plaintiff filed her ERD complaint
on September 24, 1998; thus, events
occurring prior to November 28, 1997
would be excluded from consideration.
This would prevent review of some of the
alleged events (her ERD complaint alleges
that the discriminatory and harassing
actions began in December of 1996),
including Fougner’s questioning of
Haugerud’s ability to be a day custodian;
Norsted’s conversation with Haugerud, on
November 25, 1997, in which he asked her
to give up her position so that Fougner
could return to it; and Hinke’s
derogatory comments. These events seem to
lay the foundation for the events that
followed, however, and could arguably be
considered as part of "a single,
continuing course of harassment." Saxton
v. AT&T, 10 F.3d 526, 532 n.11 (7th Cir.
1993). The continuing violations doctrine
allows a court to consider as timely all
discriminatory conduct relevant to a
claim, so long as there is sufficient
evidence of a "pattern or policy of
discrimination." Hardin v. S.C. Johnson &
Son, Inc., 167 F.3d 340, 344 (7th Cir.
1999), cert. denied, 528 U.S. 874, 120 S.
Ct. 178, 145 L. Ed. 2d 150 (1999). As the
district court did not address the issue,
and the School District only makes the
bare assertion that events outside the
300 days should not be considered, "we
will not undertake to parse [plaintiff’s]
claims in an effort to weed out time-
barred incidents." Saxton, 10 F.3d at
532-33 n.11; see also Young v. Will
County Dept. of Pub. Aid, 882 F.2d 290,
292 (7th Cir. 1989) ("All doubts on
jurisdictional timeliness are to be
resolved in favor of trial."). Thus we
will consider all incidents presented in
plaintiff’s complaint and appellate
briefs./3
C. Title VII Claims
1. Sex Discrimination Claim
Plaintiff alleges that the School
District discriminated against her on the
basis of her sex, in violation of Title
VII of the Civil Rights Act of 1964. 42
U.S.C. sec. 2000e-2(a)(1). Under Title
VII, it is unlawful for an employer "to
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." Id.
Thus, there are two primary issues
toconsider: first, was the purported
difference in treatment prompted by
plaintiff’s sex, and second, did the
difference in treatment affect
plaintiff’s compensation, terms,
conditions, or privileges of employment.
See Sweeney v. West, 149 F.3d 550, 554
(7th Cir. 1998). "If there is enough
evidence for a reasonable jury to
conclude that the plaintiff’s sex . . .
prompted the disparate treatment (and
that the treatment affected the
plaintiff’s employment in a tangible
way), then the case is suited for trial,
not summary judgment." Id.
Plaintiff may establish a violation of
Title VII by presenting evidence of
discriminatory intent, whether it be
direct or circumstantial, or she may
proceed under the McDonnell Douglas
burden-shifting method. Either way,
however, the plaintiff must prove that
her "terms, conditions, or privileges of
employment" were affected, 42 U.S.C. sec.
2000e-2(a)(1); that is, she must show
that she suffered a materially adverse
employment action. See Russell v. Bd. of
Trs. of the Univ. of Ill., 243 F.3d 336,
341 (7th Cir. 2001); Sweeney, 149 F.3d at
554. Determining what is materially
adverse will normally "depend on the
facts of each situation." Bryson v. Chi.
State Univ., 96 F.3d 912, 916 (7th Cir.
1996). A wide variety of actions can
qualify, "some blatant and some subtle."
Id. at 916 (citation omitted). While what
is considered adverse is defined broadly,
"not everything that makes an employee
unhappy is an actionable adverse action."
Smart v. Ball State Univ., 89 F.3d 437,
441 (7th Cir. 1996); but see Collins v.
State of Ill., 830 F.2d 692 (7th Cir.
1987) (holding that an "adverse job
action is not limited solely to loss or
reduction of pay or monetary benefits").
In assessing adversity, we may examine
both quantitative and qualitative changes
in the terms or conditions of plaintiff’s
employment. See Dahm v. Flynn, 60 F.3d
253, 257 (7th Cir. 1994).
Plaintiff alleges that she suffered
adverse employment actions within the
meaning of Title VII when the School
District 1) tried to force her to give up
her custodial position, 2) told the male
night custodians not to help the female
day custodians, 3) gave her additional
responsibilities above what was expected
of the male custodians and above that
which she should have reasonably have
been given, and 4) intentionally
interfered with the performance of her
work duties. While many of these
instances might have indeed been
harassing, as we discuss below, none of
them resulted in any materially adverse
change in the terms, conditions, or
privileges of plaintiff’s employment.
Plaintiff has not been disciplined,
demoted, or terminated; has not been
denied wage or employee benefit increases
or been given less opportunity for such
increases; and has not had her job
responsibilities reduced or been made to
perform more menial tasks. She
transferred into the high school on the
basis of her seniority under the
collective bargaining agreement, and has
not been transferred since then. Though
she did receive an extra period of
probation following her transfer in 1998,
she completed the probationary period
without incident and continues to hold
the day custodial position at the high
school. In short, no material harm has
resulted from any of the challenged
actions. Thus we agree with the district
court that plaintiff suffered no adverse
employment action and can not make out a
case of sex discrimination. See also
Parkins v. Civil Contractors of Ill.,
Inc., 163 F.3d 1027, 1039 (7th Cir. 1998)
(finding that "an adverse employment
action might occur when an employer
orders its employees to shun the
plaintiff, provided that this activity
causes material harm to the plaintiff").
Cf. McKenzie v. Ill. Dept. of Transp., 92
F.3d 473, 484 (7th Cir. 1996) (finding
that, in the context of a retaliation
claim, it was an adverse action for a
supervisor to tell an employee in the
accounting office to stop hand delivering
invoices to plaintiff’s office). We will
affirm the district court’s grant of sum
mary judgment on this issue.
2. Sexual Harassment in the Form of a
Hostile Work Environment
a. Plaintiff’s Claim
Plaintiff also alleges that the School
District created a hostile work
environment that constitutes sexual
harassment. "An employer violates Title
VII when ’discrimination based on sex . .
. create[s] a hostile or abusive work
environment.’" Adusumilli v. City of
Chi., 164 F.3d 353, 361 (7th Cir. 1998)
(quoting Meritor Sav. Bank v. Vinson, 477
U.S. 57, 66, 106 S. Ct. 2399, 91 L. Ed.
2d 49 (1986)), cert. denied, 528 U.S.
988, 120 S. Ct. 450, 145 L. Ed. 2d 367
(1999). Our inquiry turns on whether the
alleged harassment occurred because of
the sex of the complainant, thus we ask
whether she was "’exposed to
disadvantageous terms or conditions of
employment to which members of the other
sex [were] not exposed.’" Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S.
75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201
(1998) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 25, 114 S. Ct. 367,
126 L. Ed. 2d 295 (1993) (Ginsburg, J.
concurring)). Harassment is not limited
to acts of sexual desire, see Smith v.
Sheahan, 189 F.3d 529, 534 (7th Cir.
1999); Shepherd v. Slater Steels Corp.,
168 F.3d 998, 1008 (7th Cir. 1999)
(quoting Oncale, 523 U.S. at 80), but
rather is a broad term which "encompasses
all forms of conduct that unreasonably
interfere with an individual’s work
performance or create an intimidating,
hostile, or offensive working
environment." McKenzie v. Ill. Dep’t. of
Transp., 92 F.3d 473, 479 (7th Cir. 1996)
(citing Meritor Sav. Bank, 477 U.S. at
64).
Workplace harassment "must be
sufficiently severe or pervasive" to be
actionable. Meritor Sav. Bank, 477 U.S.
at 67 ("[N]ot all workplace conduct that
may be described as ’harassment’ affects
a ’term, condition, or privilege’ of
employment."); Russell v. Bd. of Trs. of
the Univ. of Ill., 243 F.3d 336, 342-43
(7th Cir. 2001) ("In order to
survivesummary judgment on a hostile work
environment claim, a plaintiff must
present evidence that would establish
that the allegedly hostile conduct was so
severe or pervasive as to create an
abusive working environment in violation
of Title VII."). We have recognized,
however, that harassment need not be both
severe and pervasive--one extremely
serious act of harassment could rise to
an actionable level as could a series of
less severe acts. See Smith, 189 F.3d at
533-34.
To prevail on a hostile environment
claim, the plaintiff must show that the
work environment was both subjectively
and objectively hostile. See Harris, 510
U.S. at 21-22. The requirement of
subjectivity is intended to ensure that
the plaintiff did actually feel harassed,
because "if the victim does not
subjectively regard the environment as
abusive, the conduct has not actually
altered the victim’s employment and there
is accordingly no Title VII violation."
McKenzie, 92 F.3d at 479 (citing Harris,
510 U.S. at 20-22). An objectively
hostile work environment is one that a
reasonable person would find hostile or
abusive. See Adusumilli, 164 F.3d at 361.
In determining whether a plaintiff has
met this standard, a court must consider
all the circumstances, including "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." Harris, 510
U.S. at 23; see also Russell, 243 F.3d at
343; Smith v. Sheahan, 189 F.3d 529, 533-
34 (7th Cir. 1999). We have made clear
that Title VII "do[es] not mandate
admirable behavior from employers,"
Russell, 243 F.3d at 343, thus "’simple
teasing,’ offhand comments, and isolated
incidents (unless extremely serious) will
not amount to discriminatory changes in
the ’terms and conditions of employment.’"
Adusumilli, 164 F.3d at 361 (quoting Far
agher v. City of Boca Raton, 524 U.S.
775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d
662 (1998)); see also Russell, 243 F.3d
at 343-44 (citing a number of Seventh
Circuit cases which held that various
statements "were not so offensive as to
constitute actionable conduct"); Saxton
v. AT&T, 10 F.3d 526 (7th Cir. 1993)
(holding that conduct "was not so severe
or pervasive as to create an objectively
hostile work environment").
The point of all this language, much of
which we have already commented on in
other cases, is to assist judges in
determining which claims deserve to
survive summary judgment and go to trial.
Thus we must decide whether a reasonable
trier of fact could find that plaintiff
was harassed, that she was harassed
because of her sex, and that the conduct
was severe or pervasive enough to create
a subjectively and objectively hostile
work environment. See Mazzei v. Rock ’N
Around Trucking, Inc., 246 F.3d 956, 959
(7th Cir. 2001) ("[S]ummary judgment is
improper [ ] if a reasonable jury could
return a verdict in favor of the
nonmoving party.") (citation omitted). We
thus turn to that task, reviewing all of
plaintiff’s evidence in the light most
favorable to her.
The following are the primary factual
allegations made by the plaintiff with
regard to her hostile work environment
claim:
1. The high school principal, Sanders,
asked the superintendent, Norsted, not to
allow plaintiff to return to the high
school because she was not qualified.
This request was made notwithstanding
plaintiff’s satisfactory evaluations and
without consulting plaintiff’s
supervisor.
2. Norsted, the School District
superintendent, promised Fougner, the
male custodian that plaintiff bumped when
she returned to the high school, that he
would get his job back.
3. Fougner told another custodian that
he was writing up a schedule for
plaintiff that there was "no way in hell"
she would be able to handle.
4. The School District told the male
custodians not to help the female
custodians but did not give any similar
directives to the female custodians.
5. Mara, the maintenance supervisor,
criticized Elkin for helping plaintiff
with maintenance tasks but did not do so
when Elkin helped the male custodians.
6. When plaintiff requested assistance
from the maintenance department, she
received either delayed assistance or no
assistance. There is no evidence that the
male custodians had similar problems.
7. Plaintiff was told to assemble a desk
and install a window by herself, both of
which were two person jobs. There is no
evidence that any of the male custodians
were asked to perform similar maintenance
tasks, by themselves or otherwise.
8. Plaintiff is now responsible for all
snow shoveling, even though it is not
assigned to a particular shift. Gaudette,
a female night custodian, was required to
shovel snow when she was working for the
District, though the male night
custodians were not. This task is time
consuming and renders it more difficult
to complete the required custodial tasks.
Though plaintiff asked Sanders, the
school principal, to request that the
male night custodians assist in snow
removal, Sanders took no action.
9. Plaintiff has been required to
perform a variety of maintenance tasks
(fix a door, install a window, build a
box for gym equipment) that were, prior
to her move to the day custodial
position, traditionally performed by
outside contractors or the maintenance
department.
10. On at least two occasions, male
custodians hid the tools plaintiff needed
to do her job.
11. The other female custodian at the
high school, Gaudette, left due to the
"hostile environment."
12. Norsted and Mara both heard the male
custodians make a variety of derogatory
comments about the female custodians--
asserting that they were not qualified to
do their jobs as custodians and that they
should not be paid as much as men--but
neither took any action.
In summary, plaintiff presents a variety
of incidents in which she--the only day
custodian at the high school and the only
female custodian at the high school since
March of 1999--was harassed by the male
superintendent, the male principal, her
male supervisor, and the male night
custodians. This harassment was not of a
sexual nature but rather it was directed
at the terms and conditions of her
employment: questioning her abilities and
the ability of women to do her job in
general, plotting to give her job to a
male custodian, increasing her duties in
an attempt to make her quit, withholding
necessary assistance, hiding the tools
necessary to do her job, making
discriminatory comments, and so forth.
While none of these incidents were
particularly severe, they are
sufficiently pervasive, and they seem to
have unreasonably interfered with her
ability to do her job. See Harris, 510
U.S. at 23; cf. Russell, 243 F.3d at-343-
44 (finding insufficient evidence to
sustain a hostile environment claim,
where most of the offensive comments were
directed at plaintiff’s co-workers and
the few comments directed at plaintiff
were minor); Adusumilli, 164 F.3d at 361-
62 (finding that a few ambiguous
comments, several touches to plaintiff’s
finger and hand, and one possible poke to
plaintiff’s buttocks were not
sufficiently severe or pervasive to be
actionable); McKenzie, 92 F.3d at 480
(finding that three comments over a three
month period were not frequent or severe
enough to rise to the level of
unreasonably interfering with plaintiff’s
work environment). Further, there is no
evidence that men were subjected to this
type of harassing behavior. Cf. Hardin v.
S.C. Johnson & Son, Inc., 167 F.3d 340
(7th Cir. 1999) (holding that plaintiff
was not singled out for abusive treatment
because alleged harasser "was a crude
individual who treated all of his
coworkers poorly"), cert. denied, 528
U.S. 874, 120 S. Ct. 178, 145 L. Ed. 2d
150 (1999).
Plaintiff asserts that the work
environment was subjectively hostile, and
points to problems with sleep,
depression, and weight gain, as well as
several incidents in which she was
brought to tears. It seems clear that she
did "subjectively regard the environment
as abusive," McKenzie, 92 F.3d at 479;
see also Gentry v. Export Packaging Co.,
238 F.3d 842, 851 (7th Cir. 2001), and
there is no evidence to the contrary. The
School District suggests that plaintiff
should have to do more than declare that
she was harassed, yet that is the whole
point of the subjective inquiry: we
inquire into whether the plaintiff
perceived her environment to be hostile
or abusive. See Faragher, 524 U.S. at
787. If she did, as is evident here, then
we assess whether that feeling was
reasonable. In this case, both the
"frequency of the discriminatory conduct"
and its "interfere[nce] with
[plaintiff’s] work performance" support a
finding of objective hostility. See
Harris, 510 U.S. at 23. Similarly
situated others--those who were the only
person of a certain sex or race in a
workplace, who were treated differently
than the other workers, and who were
aware of disparaging references to their
sex or race--would likely feel harassed
by this type of pervasive behavior. Cf.
Saxton v. AT&T, 10 F.3d 526, 534-35 &
n.14 (7th Cir. 1993) (finding there was
not an objectively hostile work
environment where there were only two
instances of offensive behavior and the
behavior did not interfere with the
plaintiff’s work performance).
Determining whether plaintiff was
treated differently because of her sex,
as opposed to some other reason (for
example, any difference in job
descriptions among the custodial
positions) is admittedly complicated by
the fact that she is the only day
custodian at the high school. Thus, it is
difficult to compare what has been
required of her with what is required of
the night custodians, or the day
custodians at the other schools. The
incidents of discriminatory treatment
towards plaintiff and the other women,
however, are unmatched by similar reports
of this type of conduct being directed
toward men. It would be reasonable to
conclude that a male day custodian with
Haugerud’s level of seniority would not
have been treated the same way. The
School District’s primary argument in
response is that "it has the contractual
and managerial right to define job
requirements for its daytime custodians
[i]ncluding the discretion to add routine
maintenance duties during the day shift
that had not been previously required."
First of all, this argument ignores the
other types of harassment alleged by
plaintiff, which we have mentioned above.
Secondly, even if the School District has
a contractual right to impose additional
duties on plaintiff, this right is not
absolute; Title VII would not permit the
District to increase plaintiff’s workload
due to her sex. In the instant case,
plaintiff challenges the District’s
contention that the day custodians are
supposed to do more maintenance work than
the night custodians by showing that the
job descriptions are identical, at least
with respect to required maintenance
work: both descriptions say the
custodians will "perform routine
maintenance/repairs to building boiler
systems, plumbing, and electrical
equipment." Haugerud also states that her
official job description did not change
when she transferred to the day custodial
position at the high school, thus there
was nothing in writing suggesting that
the new position would involve an
increase in maintenance duties. Finally,
she has presented evidence showing that
the job duties for her position were
increased when she took on the position,
in comparison to the duties expected of
the male custodian who held the position
immediately prior to her (she also
asserts that the job duties for a night
custodial position were decreased when
Gaudette left and a man took her place).
Perhaps the final blow is that the
School District has not denied or
explained (at least on appeal)
plaintiff’s most damaging allegation:
that the male custodians were told not to
help the female custodians. No similar
decree was given to the female
custodians; in fact, the females were
still expected to help the males (e.g.,
the women were required to shovel snow
and the men were not, and plaintiff was
told to clean the bathrooms after the men
failed to clean them). If plaintiff’s
allegation is true, it would seem to
constitute "discrimina[tion] . . .
because of . . . sex." 42 U.S.C. 2000e-
2(a)(1); Oncale, 523 U.S. at 80. It would
be one thing to hold all employees
accountable for their job duties, and to
prohibit any employee from helping
another, but a simple decree that the
male workers not help the female workers
would evidence intent to treat the
custodians differently on the basis of
sex.
The sum total of plaintiff’s
allegations--the school board decree, the
discriminatory comments, the increased
workload, the failure to assist
plaintiff, and the evidence of attempts
to hinder her performance of her job
duties--could lead a reasonable trier of
fact to find a "general hostility to the
presence of women in the workplace."
Oncale, 523 U.S. at 80. Undoubtedly,
"[i]t is challenging to precisely define
what constitutes a hostile work
environment." Gentry, 238 F.3d at 850.
The district court summarized plaintiff’s
factual allegations by stating that "two
co-workers made comments to her that
female custodians should not be paid as
much as male custodians," and that she
"contends that the high school principal
talked to her once in an abusive manner."
Haugerud v. Amery, No. 99-C-515-S, slip
op. at 8 (W.D. Wis. March 7, 2000). The
court then determined that "[t]hese
actions are not so severe and pervasive
as to alter plaintiff’s working
conditions." Id. We recognize that this
is a close call. Nonetheless, we conclude
that a reasonable fact finder could find
that plaintiff was treated differently
than her male colleagues because of her
sex, in a manner that was both
subjectively and objectively harassing,
and at a sufficient level of
pervasiveness to trigger liability under
Title VII.
b. The School District’s Liability
Our inquiry, however, does not end with
the determination that plaintiff has
experienced a hostile work environment. A
plaintiff must also show that the
employer is liable for the discriminatory
acts. See Smith v. Sheahan, 189 F.3d 529,
533 (7th Cir. 1999). Though the district
court did not reach this issue, both
parties discussed it on appeal, and our
above conclusions mandate consideration
of whether the School District could be
held liable here. To hold an employer
liable for co-worker harassment, a
plaintiff must show "that it negligently
failed to take reasonable steps to
discover or remedy the harassment." Id.
The standard for determining when an
employer will be held liable for sexual
harassing behavior of a supervisor was
recently established by the Supreme
Court:
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 . . . .
The defense comprises two necessary
elements: (a) that the employer exercised
reasonable care to prevent and correct
promptly any sexually harassing behavior,
and (b) that the plaintiff employee
unreasonably failed to take advantage of
any preventive or corrective
opportunities provided by the employer or
to avoid harm otherwise. . . . 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 v. City of Boca Raton, 524 U.S.
775, 807-08, 118 S. Ct. 2275, 141 L. Ed.
2d 662 (1998); see also Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742,
118 S. Ct. 2257, 141 L. Ed. 2d 633
(1998). Although we do not "carve up the
incidents of harassment" when determining
if the harassment was severe or
pervasive, Mason v. S. Ill. Univ. at
Carbondale, 233 F.3d 1036, 1045 (7th Cir.
2000), in order to determine whether the
employer is liable we must distinguish
between the harassment allegedly
perpetrated by supervisors and that
allegedly perpetrated by co-workers.
i. Harassment by Supervisors
In line with traditional agency
principles, an employer may be held
vicariously liable for the acts of those
who can be considered "an employer’s
proxy," such as "a president, owner,
proprietor, partner, corporate officer,
or supervisor ’hold[ing] a sufficiently
high position in the management hierarchy
of the company for his actions to be
imputed automatically to the employer.’"
Johnson v. West, 218 F.3d 725, 730 (7th
Cir. 2000) (citing Faragher, 524 U.S. at
789-90). Plaintiff alleges harassment on
the part of Norsted, the District
Administrator, and Sanders, the high
school principal./4 Plaintiff alleges
that Norsted: 1) promised Fougner that he
would get him his job back; 2) tried to
force plaintiff to give up her position
at the high school so that Fougner could
return to it; 3) wrongfully extended her
period of probation; 4) insinuated to a
friend of plaintiff’s that he should have
talked plaintiff out of the move, stating
that "you know as well as I know that she
cannot do the job;" 5) conspired with
Fougner to assign plaintiff "extra"
maintenance duties; 6) tried to prevent
the male maintenance workers from helping
her (by criticizing Elkin and Mara for
doing more maintenance work at the high
school than at other schools); and 7)
failed to take action when male
custodians made harassing or
discriminatory comments in his presence.
Plaintiff alleges that Sanders: 1) tried
to prevent her from being transferred to
the high school for discriminatory
reasons; 2) unnecessarily gave her
probation; 3) conspired with Fougner to
devise a work schedule that there was "no
way in hell" she could complete during
the day shift; 4) assigned her tasks that
were impossible for one person to
complete; 5) failed to respond to her
requests for additional help; 6) gave her
duties and responsibilities that were not
given to the male custodians; 7) failed
to take action to force plaintiff’s male
co-workers to assist in shoveling snow;
8) beeped plaintiff on a frequent basis
to disrupt her work; and 9) spoke to her
in a very loud, angry, and abusive manner
in front of students and teachers.
There is a "safe harbor for employers in
cases in which the alleged harassing
conduct is too tepid or intermittent or
equivocal to make a reasonable person
believe that she has been discriminated
against on the basis of her sex."
Galloway v. Gen. Motors Serv. Parts
Operations, 78 F.3d 1164, 1168 (7th Cir.
1996). We have continued to recognize
such a haven in the post Ellerth/Faragher
era. See Hardin v. S.C. Johnson & Son,
Inc., 167 F.3d 340, 346 (7th Cir. 1999),
cert. denied, 528 U.S. 874, 120 S. Ct.
178, 145 L. Ed. 2d 150 (1999); Adusumilli
v. City of Chi., 164 F.3d 353, 362 (7th
Cir. 1998). We do not think, however,
that this case falls into the safe harbor
because the numerous incidents, taken
together, could indicate a pervasively
hostile work environment. While plaintiff
does not allege that Norsted and Sanders
made overtly discriminatory comments,
there is enough evidence in the record to
support an inference of sex
discrimination.
Thus we proceed to the Ellerth/Faragher
framework. "An employer is subject to
vicarious liability to a victimized
employee for an actionable hostile
environment created by a supervisor . . .
." Faragher, 524 U.S. at 807. 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 Murray v. Chi. Transit Auth., 252
F.3d 880, 887 (7th Cir. 2001); Molnar v.
Booth, 229 F.3d 593, 600 (7th Cir. 2000);
Ribando v. United Airlines, 200 F.3d 507,
510-11 (7th Cir. 1999). In short, "[a]
tangible employment action has to cause a
substantial detriment to the plaintiff’s
employment relationship." Savino v. C.P.
Hall Co., 199 F.3d 925, 932 n.8 (7th Cir.
1999). This is akin to the requirement
that an employment action must be
materially adverse, see id., see also
Murray, 252 F.3d at 888, and we have
already determined that plaintiff
suffered no such action. Cf. Molnar, 229
F.3d at 600 (holding that jury could find
that taking art supplies away from
plaintiff, who was interning as a junior
high school art teacher, was a tangible
employment action). Thus we must
determine whether the School District is
entitled to raise an affirmative defense.
"The Ellerth/Faragher affirmative defense
places the burden on the employer" to
establish, by a preponderance of the
evidence, two elements. See Gentry v.
Export Packaging Co., 238 F.3d 842, 846
(7th Cir. 2001); see also Savino, 199
F.3d at 932.
First, the employer must establish that
it "exercised reasonable care to prevent
and correct promptly any sexually
harassing behavior." Faragher, 524 U.S.
at 777-78. One method of demonstrating
the exercise of reasonable care is to
show the existence of an effective
"antiharassment policy with complaint
procedure." Id. Defendant has stated that
a sexual harassment policy with complaint
procedure was in place throughout the
relevant time period, that this policy
was distributed to employees, and that
ASD occasionally held in-service meetings
with staff to review the policy.
Plaintiff has not disputed these facts,
nor does she assert that the policy was
somehow ineffective or deficient. See id.
at 808 (holding that the City could not
have exercised reasonable care where it
"had entirely failed to disseminate its
policy" and "there was no assurance that
harassing supervisors could be bypassed
in registering complaints"); Gentry, 238
F.3d at 847, 848 (holding that a policy
must provide for "effective grievance
mechanisms" and that Title VII requires
the employer to "take[ ] the necessary
steps to fully and effectively implement
its sexual harassment policy"). Instead,
she alleges that the District did not
exercise reasonable care because it never
took any action in response to the
complaints made by plaintiff’s husband
and co-workers, prior to the time
plaintiff filed her ERD complaint. We
have considered at least one case in
which the plaintiff argued that the
employer did not exercise reasonable care
because it did not take corrective action
prior to the time plaintiff filed her
complaint. See Hill v. Am. Gen. Fin.
Inc., 218 F.3d 639 (7th Cir. 2000). The
plaintiff in Hill sent the company a
number of letters in which she
represented herself as a customer and
complained about her boss’s harassing be
havior. See id. at 641. When the human
resources department conducted an
investigation, it was suspected that the
plaintiff-employee had written the
letters but she did not acknowledge that
she had. See id. Two months after the
initial letter, plaintiff finally sent a
letter, signed in her own name, setting
out the instances of harassment. See id.
at 642. We determined that the plaintiff
did not notify the company of the
harassment until she sent the letter in
her own name because the earlier letters
"were not a reasonable effort at
notification" and "she did not
acknowledge that she had written those
letters when the company investigated the
complaints set out in the letters." Id.
at 643. That situation is somewhat
distinguishable from a situation such as
this, where people complained on
plaintiff’s behalf and with plaintiff’s
knowledge. In any event, whether we could
find that the School District was on
notice once Drinkman and plaintiff’s
husband complained to the School Board
members on plaintiff’s behalf is not an
issue we need to resolve today because,
even after the Board was notified by
plaintiff (when she filed her complaint
on September 24, 1998), it did nothing.
No internal investigation was pursued and
no remedial action was taken. The School
District does not attempt to argue
otherwise.
What the School District does argue,
repeatedly, is that plaintiff did not
file a written complaint of sexual
harassment with the District prior to
filing her charge of employment
discrimination with the EEOC. This
pertains to the second element of the
employer’s affirmative defense, in which
the employer must show that "the
plaintiff employee unreasonably failed to
take advantage of any preventative or
corrective opportunities provided by the
employer or to avoid harm otherwise."
Faragher, 524 U.S. at 807. An employee’s
"unreasonable failure to use any
complaint procedure provided by the
employer" would indicate that she "failed
to fulfill [her] obligation of reasonable
care to avoid harm." Id. at 778. Here,
however, plaintiff did not fail to take
advantage of the Board’s sexual
harassment policy. That policy allows
complainants to "file a charge of
discrimination" with the Equal Rights
Division "[i]n addition to or instead of
[using the internal] complaint
procedure." As the plaintiff’s decision
to file an external complaint rather than
filing a complaint with the Board was in
accordance with the Board’s own policy,
the Board can not now allege that
plaintiff did not fulfill her obligation
of reasonable care.
We thus conclude, as a matter of law,
that the Board "could not be found to
have exercised reasonable care" to
prevent Norsted’s and Sanders’ harassing
conduct and is thus not entitled to
present an affirmative defense to
plaintiff’s claim that she was subjected
to a hostile work environment by her
supervisors. See Faragher, 524 U.S. at
809.
ii. Harassment by Co-Workers
Plaintiff also alleges that she was
harassed by her co-workers, and that
their harassment, coupled with that of
her supervisors, created a hostile work
environment. Employers are only liable
for co-worker harassment if the plaintiff
demonstrates that the employer was
negligent in some fashion. See Adusumilli
v. City of Chi., 164 F.3d 353, 361 (7th
Cir. 1998). "In hostile work environment
cases, the employer can avoid liability
for its employees’ harassment if it takes
prompt and appropriate corrective action
reasonably likely to prevent the
harassment from recurring." Tutman v.
WBBM-TV, Inc., 209 F.3d 1044, 1048 (7th
Cir. 2000), cert. denied, ___ U.S. ___,
121 S. Ct. 777, 148 L. Ed. 2d 675 (2001).
As we have already noted, however, the
School District has not presented
evidence that it took any type of correc
tive action once plaintiff filed her ERD
complaint. Thus, this is not like the
majority of the cases we consider, in
which plaintiff contests the efficacy of
the employers response; see, e.g., Shaw
v. AutoZone, Inc., 180 F.3d 806, 811-12
(7th Cir. 1999), cert. denied, 528 U.S.
1076, 120 S. Ct. 790, 145 L. Ed. 2d 666
(2000), this is a case where the employer
simply did not act. We conclude that a
reasonable fact finder could find that
the School District’s failure to take any
steps to investigate plaintiff’s
allegations or to act on them in any way
constituted negligence.
III. Conclusion
For the foregoing reasons, we AFFIRM the
district court’s grant of summary
judgment with respect to plaintiff’s sex
discrimination claim, REVERSE with respect
to her hostile work environment claim,
VACATE the district court’s award of
costs, and REMAND for proceedings
consistent with this opinion.
FOOTNOTES
/1 At some point in 1998, Mara gave up responsibili-
ty for directly supervising custodians. As a
result, Mara’s title changed from "custodial and
maintenance supervisor" to "maintenance supervi-
sor" and Sanders was given responsibility for
supervision of the custodial workers.
/2 In plaintiff’s written response to particular
questions of the Equal Rights Officer assigned to
her claim, she noted that a consultant from B&G
Consultants had been hired by the School District
to evaluate the custodial positions. During a
presentation to the staff, the consultant stated
that "she had never worked with such a chauvinis-
tic group and found their treatment of women to
be unacceptable." Plaintiff’s Written Response to
ERO’s Questions para. 19.
/3 Defendant also alleges that many of the state-
ments plaintiff relies upon constitute inadmissa-
ble hearsay. Defendant’s motion for summary
judgment did not discuss this aside from noting,
in the conclusion, that a party can not rely upon
inadmissable hearsay in an affidavit or deposi-
tion to defeat a motion for summary judgment.
Defendant has not directed this court’s attention
to any particular statements that should be
reviewed. The district court did not rule that
any statements were inadmissable, and did not
comment on the alleged hearsay in its opinion.
For the purposes of our review, then, we consider
all of plaintiff’s evidence. While it is possible
that, on remand, the district court might rule
certain statements inadmissable, there is a
sufficient amount of non-hearsay evidence to
support our findings.
/4 Joe Mara, plaintiff’s former supervisor who later
relinquished supervisory authority over the
custodians, would not fall into the category of
employees for whom the School District could be
held vicariously liable; he was a "low-level
supervisor" rather than a "high-level manager."
Johnson, 218 F.3d at 730. Thus, we will consider
whether the School District can be held liable
for his acts in the following section under the
standard for the employer’s liability for acts of
co-workers.