Bright, Elizabeth A. v. Hill's Pet Nutrition ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3927
ELIZABETH A. BRIGHT,
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-1709-DFH-TAB—David F. Hamilton, Judge.
____________
ARGUED NOVEMBER 30, 2007—DECIDED DECEMBER 21, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. The Supreme Court held
in National Railroad Passenger Corp. v. Morgan, 536 U.S.
101, 115–21 (2002), that a hostile working environment
is a single unlawful practice under Title VII of the Civil
Rights Act of 1964. A charge of discrimination based on
such a practice covers all events during that hostile
environment, if the charge is filed within 300 days (180
days in some states) of the last act said to constitute the
discriminatory working condition. 42 U.S.C. §2000e–
5(e)(1). We held in Isaacs v. Hill’s Pet Nutrition, Inc., 485
2 No. 06-3927
F.3d 383 (7th Cir. 2007), that hostile working conditions
at a single place of employment are a single unlawful
practice. Title VII creates responsibilities for “employers”
as entities. Employers may not turn a practice that
Morgan deems unitary into two or more distinct practices
by calling each subdivision of the workplace a separate
“team.” Most employers—and Hill’s Pet Nutrition is no
exception—allow plant managers and human-relations
departments to control working conditions plant-wide.
When a single managerial staff or chain of command
decides to permit the men in the workplace to make life
miserable for the women, that is a single unlawful practice
whether or not a particular woman moves from one
team to another within the plant.
Carol Isaacs initially worked on a Packaging Team at
Hill’s Pet Nutrition in Richmond, Indiana, and was
transferred to a Stretchwrap Team. Jackie Vanderpool
supervises all human-relations issues at the Richmond
plant and reports to a plant manager with authority over
everything that happens there. We held that all events
during Isaacs’s employment at the plant could be consid-
ered as part of one practice, even though many of the
incidents about which she complained had occurred more
than 300 days before she filed her charge.
Elizabeth Bright was hired at the Richmond plant
during February 2000, the same month as Isaacs, and quit
in November 2002. While Isaacs started with a Packaging
Team, Bright was assigned to a Processing Team, where
she worked for about 10 months before being transferred
to a Stretchwrap Team. Between October 2001 and
November 2002, both Isaacs and Bright were assigned to
a Stretchwrap Team. Bright filed her charge of discrim-
ination early in 2003 and filed suit later that year.
Bright presented evidence that the men routinely vexed
the women in an effort to make them quit. The tactics
No. 06-3927 3
included unwelcome sexual overtures and sex-related
chatter, streams of misogynistic invective, refusal to train
(team leaders tried to get women to view pornographic
images on the men’s computers, and, when women de-
clined, the men would declare that they had no time for
training), assigning women to the dirtiest jobs (which team
leaders called “women’s work”), and threats of violence,
some of which were fulfilled (for example, Bright’s dog
was shot, supposedly as a warning to her). According to
one of Bright’s witnesses, on being told that men referred
to female workers as “whores,” “cunts,” and “bitches,”
Vanderpool replied: “a hostile work environment is a
productive work environment.” As we remarked in Isaacs,
485 F.3d at 387: “A jury could infer that working condi-
tions 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.”
Hill’s Pet Nutrition contended that none of this testi-
mony should be believed. It did, however, concede having
a problem with pornography in the workplace, and it
suspended 11 men for two weeks in March 2002 in re-
sponse to their accumulation and viewing of inappropri-
ate materials on the firm’s computers. The employer
maintains that this step solved the only problem that
women had encountered at work.
Before trial, the district judge concluded that Morgan
entitles Bright to present evidence of the working en-
vironment during her complete 2 years and 9 months of
employment. 2005 U.S. Dist. LEXIS 15470 (S.D. Ind. July
26, 2005). In mid-trial, however, the judge changed his
mind about the temporal limits. He instructed the jury
that it could not consider anything that happened to
Bright before March 29, 2002, approximately 300 days
before she filed her charge, and could not consider at all
4 No. 06-3927
any of the incidents related to the pornographic images.
So instructed, the jury returned a verdict against Bright.
Her lawyer did not make a particularly articulate objec-
tion to the instruction, but he did remind the judge about
Morgan, which under the circumstances (including the
pretrial ruling following briefs on this very subject) was
enough to preserve the issue for appellate review.
The district judge’s instruction was mistaken, quite
apart from our conclusion in Isaacs that a hostile working
environment must be treated as one unlawful practice
even if the employee moves from one team to another. For
Morgan itself shows that a hostile environment in a
single posting is one practice. Bright was part of a
Stretchwrap Team for 22 months, from the beginning of
2001 until she quit in November 2002, but the judge
allowed the jury to consider only the events of the final
eight months, from April through November. As Isaacs
holds, the judge should have allowed the jury to con-
sider the working conditions that Bright encountered
for her entire employment at the Richmond plant.
The district judge seems to have believed that the
discipline of the 11 men in March 2002 marked a transi-
tion from a tolerant attitude at the plant to one where
management had intervened on behalf of the women. Why
this should cut off any possibility of damages for condi-
tions that Bright encountered before March 29, 2002, is
hard to see. Moreover, Bright contends that manage-
ment’s intervention in March 2002 had limited effect—
that the men not only reloaded their computers with
graphic sexual images but also blamed Bright and other
women for their loss of pay and the embarrassment they
had suffered when they had to explain to their wives
why they were not going to work for those two weeks.
Hill’s Pet Nutrition denies these assertions, but, no matter
who is right, the main point is that Morgan treats the
totality of the working conditions as a single practice. It
No. 06-3927 5
is inappropriate to draw lines by time (that’s Morgan’s
core holding) or by the particular method that the men
used to make working conditions worse for the women
than for themselves. So it is not possible to rule out
reliance on a particular kind of evidence (such as the
pornographic pictures) or a particular time during which
the hostile environment was manifest.
When an employer takes steps such as the suspensions
and purge of objectionable material from the computers’
hard drives, these acts matter not to the duration of the
unlawful practice or the evidence a plaintiff may offer, but
to the question whether the employer is responsible.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),
and Faragher v. Boca Raton, 524 U.S. 775 (1998), hold
that many unwelcome acts are not imputed to the em-
ployer, if it responds reasonably to discriminatory condi-
tions. “[A]n employer can be liable . . . where its own
negligence is a cause of the harassment. An employer is
negligent with respect to sexual harassment if it knew or
should have known about the conduct and failed to stop
it. Negligence sets a minimum standard for employer
liability under Title VII”. 524 U.S. at 759. (Although the
Court was writing here about supervisors’ conduct that
did not affect a “tangible employment action,” we have
used the same approach for the employer’s response to co-
workers’ conduct. See, e.g., Dunn v. Washington County
Hospital, 429 F.3d 689 (7th Cir. 2005); Shafer v. Kal Kan
Foods, Inc., 417 F.3d 663 (7th Cir. 2005).)
Hill’s Pet Nutrition may be able to show that its han-
dling of the sexual images solved part of the problem and
prevents attribution. Similarly it may be able to show that
it neither knew nor should have known about some of the
events that Bright encountered. If an employee unreason-
ably fails to take advantage of preventive or corrective
opportunities, and the employer consequently does not
know about the problem, then it cannot be held liable. The
6 No. 06-3927
fact that an employer has raised these contentions,
however, does not curtail the scope of the employee’s
proofs. See Phelan v. Cook County, 463 F.3d 773, 785 (7th
Cir. 2006). Unless the evidence is so lopsided that the
employer is entitled to judgment as a matter of law, both
the plaintiff and the employer must be allowed to present
their full evidentiary cases at trial, and the district
judge should instruct on all of these issues. Instruction
3.04 of the Federal Civil Jury Instructions of the Seventh
Circuit (2005) is a helpful model.
All of this is so straightforward that the reader must
be wondering why we have bothered to recap it in a
published opinion. The fact that the district judge balked,
in mid-trial, at implementing the Morgan rule is one
reason. That Hill’s Pet Nutrition has stoutly defended the
district court’s decision, when it should have confessed
error in light of Isaacs (released after this case was tried),
is another.
According to the employer, Isaacs is irrelevant because
the facts at the trial of Bright’s suit differ from the facts
in the summary-judgment record of Isaacs’s claim. That
the proof differs is true enough; that’s inevitable even
when two claims arise from the same workplace at roughly
the same time. But what has this to do with rules of law?
Counsel for Hill’s Pet Nutrition appears to believe that
rules of law shift from case to case, so that anyone who
“ought” to win (as Hill’s Pet Nutrition is sure that it
should) must have the benefit of some favorable legal
rule. That approach is nothing less than a challenge to
the proposition that there are rules of law at all; it is a
claim that every case should be tried “on its own facts” in
a kind of law-free zone. We doubt that the employer
would be so ready to jettison rules that favored its posi-
tion; no more can it avoid legal rules that favor the
plaintiff. Every case will have its own factual pattern, but
the law does not change with the facts.
No. 06-3927 7
Hill’s Pet Nutrition also insists that the jury must have
found Bright and her witnesses not credible. If they were
not telling the truth, then Bright loses under any legal
rule. But how do we know whether the jury disbelieved
Bright’s evidence or instead concluded that what hap-
pened between March 29, 2002, and the end of Bright’s
employment in November 2002 was not severe or pervasive
enough to support liability under Title VII? The verdict
was general; the jury did not give a reason, and we cannot
sustain the verdict on the basis of speculation that the
jurors had one reason rather than the other. In denying
a motion for sanctions, the district judge made it plain
that he did not believe Bright, see 2006 U.S. Dist. LEXIS
71371 (S.D. Ind. Sept. 29, 2006), and perhaps this per-
spective influenced some of the judge’s rulings. But a jury
is entitled to make its own decision.
Isaacs had something for each side. The portion of Isaacs
favoring the defendant is its conclusion that Colgate-
Palmolive Co., the parent corporation of Hill’s Pet Nutri-
tion, is not the “employer” of the workers at the Rich-
mond, Indiana, plant and so cannot be liable under Title
VII. Just as Hill’s Pet Nutrition has refused to accept the
portion of Isaacs adverse to its interests, so Bright,
represented by the same lawyer as Isaacs, has refused to
accept the portion of Isaacs that favors Colgate-Palmolive.
What one can say for this obduracy is that Bright (unlike
Hill’s Pet Nutrition) was not a party to Isaacs and so is
not bound by rules of preclusion, though principles of
stare decisis remain. But that is all one can say. This
portion of Isaacs rested on the proposition that parent
corporations are not liable for the wrongs of their sub-
sidiaries unless they cause the wrongful conduct (and so
are directly liable) or the conditions of investors’ liability
(“piercing the corporate veil”) have been satisfied.
We could have cited oodles of decisions for that proposi-
tion but chose to cite only one: United States v. Bestfoods,
8 No. 06-3927
524 U.S. 51 (1998). The portion of Bright’s brief dealing
with the claim against Colgate-Palmolive ignores
Bestfoods. What it says instead is that Colgate-Palmolive
must have been Bright’s employer—even though she
was hired, paid, and supervised by the staff of Hill’s
Pet Nutrition—because Colgate-Palmolive promulgated
policies that its subsidiaries were supposed to use to
comply with Title VII. That a parent corporation has
tried to prevent violations of law (the better to protect
the value of its investment) hardly makes it directly
responsible for those violations! (Bright does not contend
that any of the policies that Colgate-Palmolive told its
subsidiaries to use directly violated Title VII, counseled
unlawful acts, or even increased the probability that
unlawful acts would occur.) Nor does it matter that
managers at Hill’s Pet Nutrition told managers at Colgate-
Palmolive about the problems at the Richmond plant. Title
VII applies to employers, not to investors who know about
what employers are doing. That Bright complained di-
rectly to personnel at Colgate-Palmolive does not make it
an employer, any more than complaining to a Member
of Congress would have made the Senator or Representa-
tive her employer. An email to Warren Buffett would not
make him personally liable for wrongs committed by
corporations in the Berkshire Hathaway portfolio.
The judgment in favor of Colgate-Palmolive is affirmed.
The judgment in favor of Hill’s Pet Nutrition is reversed,
and the case is remanded for a new trial.
No. 06-3927 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-21-07