Isaacs, Carol L. v. Hill's Pet Nutrition ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2201
CAROL L. ISAACS,
Plaintiff-Appellant,
v.
HILL’S PET NUTRITION, INC., and
COLGATE-PALMOLIVE COMPANY,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:03-cv-0348-LJM-VSS—Larry J. McKinney, Chief Judge.
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ARGUED MARCH 30, 2007—DECIDED MAY 4, 2007
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Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. Carol Isaacs worked for
Hill’s Pet Nutrition, packaging pet food and preparing
the bags for shipment, for more than five years. In 2002
and 2003 she filed charges of sex discrimination with the
EEOC, contending that her employer violated Title VII of
the Civil Rights Act of 1964. The district court granted
summary judgment against Isaacs, who had sued not only
Hill’s but also Colgate-Palmolive, its corporate parent. As
the district court remarked, Colgate was not Isaacs’
employer, and she offers no reason why an investor should
2 No. 06-2201
be liable for Hill’s acts. Cf. United States v. Bestfoods, 524
U.S. 51 (1998). We need not mention Colgate again.
Many of Isaacs’ claims in this litigation are outside the
scope of the administrative filings. She complains, for
example, about her discharge in 2005, but she never filed
a charge concerning that event, and the charges in 2002
and 2003 could not have alerted the employer to a griev-
ance about events yet to occur. A short interval between
the charge and the complained-of events might not have
impeded investigation and conciliation: if Isaacs had been
fired a week after her charge, the EEOC would have
learned this in the course of its investigation, but the
gap was much longer and precluded any administrative
inquiry. The same is true of her assertion that the firm
retaliated against her for filing these charges and attempt-
ing to protect her rights. If she wanted to litigate such a
theory, she had to use the administrative process first. Her
other arguments likewise are well covered by the district
court’s opinion and need not be addressed here—all but
one, that is.
A claim of a hostile work environment was presented
in the 2003 charge. The Supreme Court treats a hostile
work environment as one unlawful employment practice.
See National Railroad Passenger Corp. v. Morgan, 536
U.S. 101, 115-21 (2002). The employee may complain about
any of the constituent acts, no matter how long ago they
occurred, as long as the charge is filed within 300 days of
any harassing act.
Hill’s does not invoke the doctrine of laches, which
curtails prejudicial delay. See Pruitt v. Chicago, 472 F.3d
925 (7th Cir. 2006). Instead it argues, and the district
court found, that despite Morgan the hostile work en-
vironment that Isaacs claims to have experienced was not
a single employment practice. Instead, the district court
found, it was two practices: one that Isaacs experienced
No. 06-2201 3
when she worked on the Packaging Team (February 2000
through October 15, 2001) and another when Isaacs
worked on the Stretchwrap Team (October 15, 2001,
through October 3, 2003). The Packaging Team bags the
products; the Stretchwrap Team puts the bags on wooden
pallets, applies plastic wrap, and loads them onto trucks
for shipment. The teams have different leaders and work
in different parts of the plant—though not far apart, since
the Packaging Team delivers the bags to the Stretchwrap
Team.
This change of job assignment means, Hill’s contends,
that the conditions that Isaacs experienced while with the
Packaging Team may not be considered, as they occurred
more than 300 days before her charge. And the conditions
she experienced with the Stretchwrap Team were not
severe enough to constitute a hostile working environ-
ment, the district judge concluded. The judge summarized
what he understood to be Isaacs’ claims about conditions
on the Stretchwrap Team:
1) [Isaacs] glimpsed objectionable materials on
computer screens two times; 2) she frequently
heard comments over the radio in Stretchwrap
about “dragging my wood,” or “my wood’s awful
long” that she took to be sexual references [a
double entendre, with the non-sexual meaning
referring to the wooden pallets]; 3) Pebworth [the
team leader in Stretchwrap] twice told her that
her rear end was so big that two men could climb
on it; 4) Pebworth made crying sounds over the
radio in an effort to mock her, used the word
“bitch” in her presence a few times, and the term
“fucking bitch” twice in reference to someone
other than Isaacs.
We may assume (without deciding) that, if this is all there
was to it, the conditions were unpleasant but not serious
4 No. 06-2201
or pervasive enough to violate Title VII. See Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82
(1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,
67 (1986); Yuknis v. First Student, Inc., No. 06-3479 (7th
Cir. Mar. 28, 2007). But this is not all there was to it, for
events during her entire employment with Hill’s should
have been considered.
When deciding that Isaacs experienced two distinct
episodes of hostile work environment, the district court
concentrated on the identities of her harassers. One group
of men made life hard for her in Packaging; a different
group vexed her in Stretchwrap. But why should this
matter? Isaacs has not sued her co-workers; the entity
responsible for complying with Title VII is the employer, of
which Isaacs had just one. And employers are not vicari-
ously responsible for misconduct in the workplace; employ-
ers are responsible for their own conduct (or
omissions)—which is to say, for how they respond (or
fail to respond) after receiving notice that an employee
may be suffering from disparate treatment at co-workers’
hands. See Faragher v. Boca Raton, 524 U.S. 775 (1998);
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998);
Dunn v. Washington County Hospital, 429 F.3d 689 (7th
Cir. 2005). (Isaacs does not contend that she suffered any
adverse “tangible employment action,” within the meaning
of Faragher and Ellerth, or that Hill’s is responsible for
the conduct of a “supervisor.”)
As Isaacs related events, she complained repeatedly
to supervisors and management-level personnel at Hill’s
Pet Nutrition about how the men were treating her, and
she received the same response every time: one or another
variation on “grin and bear it.” The employer’s approach
thus remained constant. Doing nothing after receiving
multiple complaints about serious conditions is a straight
road to liability under Title VII. See EEOC v. Indiana Bell
Telephone Co., 256 F.3d 516 (7th Cir. 2001) (en banc).
No. 06-2201 5
An employee moved from one plant to another, where a
different set of managers made decisions about working
conditions, might well experience different hostile environ-
ments for the purpose of Morgan. As long as the employee
remains within a single chain of command, however, and
the same people control how the employer addresses
problems in the workplace, there is only one employment
practice, and all events may be considered (subject to the
possibility of laches) to determine whether that employ-
ment practice violates Title VII. Isaacs therefore is
entitled to present for consideration her treatment
throughout her employment at Hill’s Pet Nutrition.
Ample evidence would allow a trier of fact to conclude
that Isaacs was subjected to a pervasively hostile environ-
ment, designed by the male workers to drive women from
the plant or at least express domination and control over
them. Isaacs testified by deposition that her team leader
in Packaging refused to train her unless she listened to
him describe his sexual exploits and desires. When she told
him to stop, all that stopped was the training—the sexual
comments continued over the radio (workers in both
Packaging and Stretchwrap used radios, on a single
frequency, to coordinate their activities) and whenever
they met. The radio carried not only the talk about the
men’s “wood” but also moaning sounds whenever the
men knew that Isaacs was listening. According to one of
Isaacs’ female co-workers, simulating the sounds of sex
“was [the men’s] favorite thing to do on the radio.”
When Isaacs moved from Packaging to Stretchwrap, the
two team leaders met to discuss her, and Isaacs’ new
superior (Pebworth) picked up where her old one left off.
When she complained, Pebworth “accidentally” ran into
her with a forklift, spilling 700 pounds of pet food, and
remarked: “See what can happen to you, bitch.” Her car
was vandalized in the parking lot a few days later.
Pebworth repeatedly tried to get Isaacs to join him in
6 No. 06-2201
viewing pornography that he kept on a computer in the
plant. Several women in addition to Isaacs gave evidence
that men systematically made the lives of women in the
plant miserable—and since the team leaders were the
main offenders, other men felt no hesitation in joining
this jolly good fun.
A jury could infer that working conditions for female
laborers at Hill’s Pet Nutrition were materially worse
than the conditions for male laborers, that managers of
the firm knew this, and that they did nothing because
the firm deemed the men’s morale more important than
the women’s welfare. That conclusion would be enough to
support an award of damages under Title VII.
The judgment is affirmed, except with respect to the
hostile-working-conditions claim. On that subject the
judgment is reversed and the case remanded for trial.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-07