Rhodes, Donna M. v. IL Dept Trans ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1651
DONNA M. RHODES,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 9040—Ruben Castillo, Judge.
____________
ARGUED NOVEMBER 6, 2003—DECIDED FEBRUARY 26, 2004
____________
Before CUDAHY, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Rhodes filed this Title VII
action alleging discrimination against her former employer,
the Illinois Department of Transportation (“IDOT”). She
appeals the district court’s decision to grant IDOT’s mo-
tion for summary judgment dismissing with prejudice her
claims of sex discrimination, sexual harassment, and retal-
iation. We affirm.
2 No. 03-1651
I.
Rhodes was employed by IDOT as a full-time, seasonal
highway maintainer at the Arlington Heights Maintenance
Yard (“Yard”) for three winter seasons from 1996 through
1999. Other workers generally refer to seasonal highway
maintainers as “snowbirds.” As a snowbird, Rhodes’ job
duties included plowing roadways during and after snow-
storms, patching potholes, trimming trees, washing and
cleaning snow trucks, and general Yard maintenance.
The chain of command at the Yard where Rhodes worked
includes the Technician position, the Lead Lead Worker,
and the Lead Worker. Don Morrison and Jon Bondi alter-
nated as the Lead Worker during Rhodes’ tenure. Michael
Poladian served as the Lead Lead Worker during all three
of Rhodes’ seasons. During Rhodes’ first two seasons,
John Nicholas was the Technician and Matt Mara took the
Technician position during her third and final season. The
Lead Lead Worker is in charge of employees, but the
Technician had the ultimate responsibility for all employees
at the Yard, including the Lead Lead Worker. The Techni-
cian and Lead Lead Worker are responsible for assembling
crews and assigning tasks to employees. These positions are
the top two jobs at the Yard, but neither the Technician nor
Lead Lead Worker are authorized to hire, fire, transfer,
promote, demote, or discipline employees. Instead, these
decisions are made by the Department Administrative
Services Manager, an off-site employee. If the Technician
believes that an employee has violated Department policy,
the Technician may issue a “Report of Rule Infraction” and
recommend the imposition of sanctions to the Department
Administrative Services Manager.
Approximately 32 full and part-time employees worked
at the Yard, and Rhodes was the only female during her first
two seasons. Rhodes did not experience any serious docu-
No. 03-1651 3
mented problems at work during her first two seasons, and
her reviews at the end of both seasons indicated that she
was meeting IDOT’s expectations. However, during Rhodes’
second season, Poladian received some complaints from
motorists that her snow route was not sufficiently plowed
or that plowing took too long. For these reasons, Poladian
suggested to Mara that Rhodes should be assigned to a
shorter route. Accordingly, at the beginning of Rhodes’
third season, her route was changed to a shorter route. She
met with Poladian to discuss her disagreement with this
change. This meeting led to a verbal altercation in which
Rhodes asked for her old route back. Poladian refused to
reassign Rhodes to her old route. According to Rhodes, she
then asked to speak to Mara about the matter, and Poladian
“threatened to strangle her.” Poladian denies that he made
such a threat.
After the altercation with Poladian, Rhodes proceeded to
speak to Mara about the changed route and also discussed
Poladian’s alleged threat. Mara asked Rhodes to put her
allegations in writing so that he could investigate, but she
refused. Regardless, Mara brought Rhodes’ allegations to
the attention of his superior, Les Aling. Aling was an off-site
Operations Engineer for IDOT. After speaking with Aling,
Rhodes still did not get her old route back. Morrison, the
Lead Worker, testified that he did not have a problem with
Rhodes’ work and did not receive an answer when he asked
Poladian why her route was changed.
Rhodes claims that after complaining about the route
change, work conditions deteriorated for her at the Yard.
She claims that Poladian called her names such as “bitch”
and “cunt” after she complained about the route changes.
She also claims that Poladian forced her to wash a truck in
sub-zero temperatures, that he assigned her to work in the
Yard instead of on a road crew for several days, and that he
4 No. 03-1651
ordered Morrison to prohibit her from driving the foreman’s
truck while other workers were patching potholes. Morrison
testified that Poladian told him to not allow Rhodes to drive
the foreman’s truck, and that he was never told to prohibit
anyone other than Rhodes from driving the truck. In
addition, Rhodes submitted evidence that she was prohib-
ited from riding in the foreman’s truck.
Rhodes also alleges that pornographic magazines and
movies were prevalent at the Yard. She claims to have
found and removed a picture of a nude woman placed on
her locker, and often removed cartoons of a sexual nature
from the bulletin board. Lead Worker Morrison and Lead
Worker Bondi, both of whom oversaw Rhodes’ work at
one time, confirm Rhodes’ testimony that a TV and VCR
were used to watch pornographic movies during her em-
ployment, and that they watched the movies and had seen
Poladian watch as well. The record reveals that this TV
and VCR were concealed in the mechanics’ room of the
Yard, and that when the TV and VCR were brought out,
employees used lookouts to prevent women and outsiders
from catching on. Morrison testified that pornographic
magazines were present at the Yard during all three years
of Rhodes’ employment, and for several years prior.
Bondi confirmed that the magazines were prevalent for 18
years at the Yard. Mara has testified that he confiscated the
magazines whenever he saw them at the Yard. Rhodes
never looked at or complained about the pornographic
magazines and videos.
Rhodes’ other allegations include the claim that Poladian
accused Morrison of having “something going on” with her.
In addition, Pete Caruso, the Yard mechanic, claims that he
was told by Poladian to not fix the heat in Rhodes’ truck.
Finally, on the evening of her last day, Rhodes complains
that she told Morrison, the Lead Worker, that she would be
No. 03-1651 5
1
absent in order to take the highway maintainer’s test in the
morning, but was marked absent for failing to contact the
Technician or Lead Lead Worker in compliance with IDOT
policy. She admits that in spite of this, IDOT did not
terminate her employment, but instead asked her to return
as a snowbird for the 1999-2000 season and to interview for
a permanent highway maintainer position, but she declined
to return to work for IDOT any longer.
In response to Rhodes’ allegations, IDOT emphasizes that
it has a “zero tolerance” policy regarding harassment and
discrimination. IDOT employs civil rights officers who con-
duct yearly training sessions and post civil rights materials
in the Yard. On the one occasion that Rhodes reported to
Poladian that she had found a pornographic picture taped
to her locker, Mara and Poladian immediately had a meet-
ing with Yard employees and told them that such conduct
was not permitted. IDOT claims Rhodes was marked absent
because she failed to contact the Lead Lead Worker or the
Technician as required by IDOT policy.
The district court granted IDOT’s motion for summary
judgment on Rhodes’ sex discrimination claim by finding
that she had not presented any direct evidence of sexual
discrimination, and that under the burden-shifting frame-
work, she failed to establish the last two prongs of a prima
facie case: an adverse employment action and that similarly
situated persons were treated more favorably. Summary
judgment was granted on her harassment claim because
Mara and Poladian were found not to be supervisors for
purposes of Title VII and IDOT was not negligent in failing
to discover and remedy the harassment. As for Rhodes’
1
This test was necessary for Rhodes to maintain her eligibility
for employment with IDOT.
6 No. 03-1651
retaliation claim, the district court found that she flunked
three out of the four elements required for a prima facie case
because her complaints about the route change were not
statutorily protected activity, she did not suffer an adverse
employment action, and she was not treated less favorably
than similarly situated male employees.
II.
A. Sex Discrimination Claim
We review the district court’s grant of summary judgment
de novo, construing all facts in favor of Rhodes, the
nonmoving party. Rogers v. City of Chicago, 320 F.3d 748, 752
(7th Cir. 2003). Summary judgment is appropriate 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 judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
Under Title VII of the Civil Rights Act of 1964, it is un-
lawful for employers with more than 15 employees “to
discriminate against any individual with respect to his . . .
conditions . . . of employment, because of such individual’s .
. . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove
intentional employment discrimination under Title VII by
using either the “direct method” or “indirect method.” See
Cianci v. Pettibone Corp., 152 F.3d 723, 727-28 (7th Cir. 1998).
The direct method of proof permits a plaintiff to show,
by way of direct or circumstantial evidence, that his em-
ployer’s decision to take an adverse job action against him
was motivated by an impermissible purpose, such as sex. Id.
at 727. Direct evidence is evidence that, if believed by the
trier of fact, would prove discriminatory conduct on the part
No. 03-1651 7
of the employer without reliance on inference or presump-
tion. Rogers, 320 F.3d at 753; Plair v. E.J. Brach & Sons, Inc.,
105 F.3d 343, 347 (7th Cir. 1997). In short, “[d]irect evidence
‘essentially requires an admission by the decision-maker
that his actions were based upon the prohibited animus.’ ”
Rogers, 320 F.3d at 753 (citation omitted). A plaintiff can also
prevail under the direct method of proof by constructing a
“convincing mosaic” of circumstantial evidence that “allows
a jury to infer intentional discrimination by the
decisionmaker.” Troupe v. May Dept. Stores Co., 20 F.3d 734,
737 (7th Cir. 1994). That circumstantial evidence, however,
“must point directly to a discriminatory reason for the
employer’s action.” Adams v. Wal-Mart Stores, Inc., 324 F.3d
935, 939 (7th Cir. 2003).
If a plaintiff cannot prevail under the direct method of
proof, he must proceed under the indirect method, i.e., the
familiar McDonnell Douglas framework. See Adams, 324 F.3d
at 939. Under that test, the plaintiff must establish a prima
facie case of discrimination. If the plaintiff establishes a
prima facie case, the employer must articulate a legitimate,
non-discriminatory reason for its employment action, and
in response the plaintiff must prove that the employer’s
proffered non-discriminatory reason is a pretext for dis-
crimination. See Traylor v. Brown, 295 F.3d 783, 788 (7th Cir.
2002). In order to establish a prima facie case, the plaintiff
alleging sex discrimination must prove that: (1) he was a
member of a protected class; (2) he was performing his job
satisfactorily; (3) he experienced an adverse employment
action; and (4) similarly situated individuals were treated
more favorably. Id.Whether the plaintiff proceeds by the direct or indirect
method of proof, he must show a materially adverse em-
ployment action. See, e.g., Haugerud v. Amery School District,
259 F.3d 678, 691 (7th Cir. 2001). A materially adverse em-
8 No. 03-1651
ployment action is something “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Crady
v. Liberty National Bank and Trust Co. of Indiana, 993 F.2d 132,
136 (7th Cir. 1993). For purposes of Title VII, an adverse
employment action is a significant change in the claimant’s
employment status such as hiring, discharge, denial of
promotion, reassignment to a position with significantly
different job responsibilities, or an action that causes a
substantial change in benefits. See, e.g., Bell v. EPA, 232 F.3d
546, 555 (7th Cir. 2000).
Here, it is important to initially emphasize the undisputed
evidence that Rhodes voluntarily decided to quit her job
after being marked absent once. Rhodes does not allege any
significant changes in her employment status, nor does she
allege that she suffered a substantial change in benefits.
Instead, her allegations of sex discrimination amount to: 1)
having to wash her truck in cold weather; 2) being assigned
to the Yard instead of a road crew for three days in April of
1999; 3) having to drive a truck without heat for a few days;
4) being prohibited from driving or riding in the foreman’s
truck; 5) the change in her route; and 6) being marked ab-
sent on her last day of work allegedly contrary to company
policy.
Rhodes’ allegations, if true, constitute mere temporary
inconveniences and do not rise to the level of an adverse
employment action. See Halloway v. Milwaukee County, 180
F.3d 820, 826-27 (7th Cir. 1999). Not everything that makes
an employee unhappy qualifies as an adverse action for
Title VII, see Smart v. Ball State Univ., 89 F.3d 437, 441 (7th
Cir. 1996), and this is particularly true since Rhodes pri-
marily complains of assignments or tasks consistent with
the job duties of a winter highway maintenance worker. The
record indicates that other snowbirds were also transferred
to different routes, and that Rhodes’ new route was actually
No. 03-1651 9
shorter than her previous route. Rhodes’ allegation that she
was marked absent without pay does not qualify as a
disciplinary suspension because this single absence had
only a negligible impact on her income, and did not cause
her material harm. See Williams v. Bristol-Meyers Squibb Co.,
85 F.3d 270, 274 (7th Cir. 1996); Traylor, 295 F.3d at 789.
Accordingly, the district court correctly granted IDOT’s
motion for summary judgment because Rhodes did not
submit evidence of a materially adverse employment action
within the meaning of Title VII.
B. Sexual Harassment in the Form of a Hostile Work
Environment Claim
To prevail on a claim of sexual harassment based on hos-
tile work environment, a plaintiff must establish that: (1) she
was subjected to unwelcome sexual advances, requests for
sexual favors or other verbal or physical conduct of a sexual
nature; (2) the conduct was severe or pervasive enough to
create a hostile work environment; (3) the conduct was
directed at her because of her sex; and (4) there is a basis for
employer liability. Hall v. Bodine Elec. Co., 276 F.3d 345, 355
(7th Cir. 2002). Proof of a hostile work environment requires
evidence that the plaintiff was subjected to conduct “so
severe or pervasive as to alter the conditions of employment
and create an abusive working environment.” Hilt-Dyson v.
City of Chicago, 282 F.3d 456, 462-63 (7th Cir. 2002). To
qualify as “hostile,” the work environment must be “both
objectively and subjectively offensive . . . .” Hilt-Dyson, 282
F.3d at 463.
Here, IDOT concedes that Rhodes was subjected to un-
welcome, sexually-related conduct severe or pervasive
enough to create a hostile work environment. The only
question for review is whether the district court correctly
10 No. 03-1651
determined that she failed to establish a basis for em-
ployer liability. The standard for employer liability turns on
whether the alleged harasser was the plaintiff’s supervisor,
instead of a mere co-worker. See, e.g., Faragher v. City of
Raton, 524 U.S. 775, 807-08 (1998); Haugerud, 259 F.3d at 696-
97. Harassment by a supervisor of the plaintiff triggers strict
liability, subject to the possibility of an affirmative defense
in the event the plaintiff suffered no tangible employment
action. See Parkins v. Civil Constrs. of Ill, Inc., 163 F.3d 1027,
1032 (7th Cir. 1998). Conversely, an employer may be found
liable for a hostile work environment created by an em-
ployee who was not the plaintiff’s supervisor only where
the plaintiff proves that the employer has “been negligent
either in discovering or remedying the harassment.” Id.The district court determined the alleged harassers to be
Mara and Poladian, and concluded that Rhodes failed to
submit competent evidence that these individuals had the
authority to make decisions affecting the terms and con-
ditions of her employment. In addition, the district court
determined that Rhodes could not establish that IDOT was
negligent either in discovering or remedying any harass-
ment committed by employees who were not supervisors of
Rhodes, and that the pornography at the Yard was not so
pervasive as to impute knowledge to IDOT. We examine
each of these conclusions.
We first consider the issue of supervisor harassment. For
there to be an issue of material fact as to whether a super-
visor harassed Rhodes, it is not enough that she point to
evidence that anyone with managerial authority engaged in
sexual harassment; instead Rhodes, as the victim of the
harassment, must show that the harasser served specifically
as her supervisor. Id at 1032-34. A supervisor is someone
with the power to directly affect the terms and conditions of
the plaintiff’s employment. Id. at 1034; Hall, 276 F.3d at 355.
No. 03-1651 11
“Supervisor” is a legal term of art for Title VII purposes,
and an employee merely having authority to oversee aspects
of another employee’s job performance does not qualify as
a supervisor in the Title VII context. See Hall, 276 F.3d at 355(“[T]he fact that an employer authorized one employee to
oversee aspects of another employee’s job performance does
not establish a Title VII supervisory relationship.”). Hall
held that the plaintiff’s harasser did not qualify as a super-
visor despite the fact that he: (1) exercised authority to
direct plaintiff’s work operations; (2) provided input into
her performance evaluations; and (3) was charged with
training her and other less-experienced employees. Id.Here, similar to the responsibilities of the harasser in Hall,
Mara and Poladian managed Rhodes’ work assignments,
investigated complaints and disputes, and made recommen-
dations concerning sanctions for rule violations to the
Department Administrative Services Manager. However, it
is undisputed that neither Mara nor Poladian had authority
to make any decisions affecting the terms and conditions of
Rhodes’ employment, i.e., the authority to hire, fire, pro-
2
mote, demote, discipline or transfer Rhodes.
Accordingly, since Rhodes cannot establish that Mara or
Poladian exercised supervisory authority over her under
Title VII, she is entitled to reach a jury only if she pointed to
competent evidence that IDOT was negligent either in
discovering or remedying the harassment directed at her.
2
The district court focused generally on whether Mara or
Poladian had the authority to alter the terms and conditions of
employment for any employee at the Yard. The scope is narrower
than that. The proper focus should examine whether Mara or
Poladian were vested with the authority to alter the terms and
conditions of Rhodes’ specific employment. See Parkins, 163
F.3d at 1032.
12 No. 03-1651
Hall, 276 F.3d at 356. IDOT “will not be liable for the hostile
environment absent proof that it failed to take appropri-
ate remedial measures once apprised of the harassment.”
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 809 (7th
Cir. 2000). Generally, we do not consider an employer to
be apprised of the harassment “unless the employee makes
a concerted effort to inform the employer that a problem
exists.” Silk v. City of Chicago, 194 F.3d 788, 807 (7th Cir.
1999) (internal quotation omitted). However, we could
charge an employer with constructive notice where the har-
assment is sufficiently obvious. Mason v. Southern Ill. Univ.,
233 F.3d 1036, 1046, n.8 (7th Cir. 2000); Zimmerman v. Cook
County Sheriff’s Dept., 96 F.3d 1017, 1018 (7th Cir. 1996).
Regardless, as emphasized by the district court, “the law
against sexual harassment is not self-enforcing.” Perry
v. Harris Chernin, Inc., 126 F.3d 1010, 1014 (7th Cir. 1997).
Without employer knowledge of harassing conduct, the law
does not require an employer to do more than promote
general anti-harassment policies and training to ensure
compliance with Title VII. See Cooke v. Stefani Mgmt. Servs.,
Inc., 250 F.3d 564, 569 (7th Cir. 2001).
The district court determined that IDOT had an adequate
anti-harassment policy in place, and that Rhodes’ sole har-
assment-related complaint, arising from a pornographic
photo taped to her locker, was addressed appropriately.
Specifically, the IDOT policy identifies designated contact
persons to accept complaints of discrimination or harass-
ment. In addition, the names and phone numbers of these
contact persons, along with civil rights newsletters and
posters, are displayed in the Yard. After Rhodes complained
about the pornographic photo taped to her locker, Mara and
Poladian immediately called a meeting where they empha-
sized that such material was prohibited in the Yard due to
the well-publicized “zero tolerance” anti-harassment policy.
No. 03-1651 13
Rhodes argues that IDOT should have been aware of
the pornography in the workplace because such material
was present for several years. In addition, she argues that
the meetings called by Mara and Poladian to reinforce
the IDOT anti-harassment policy were a sham because
Poladian personally viewed the pornography. However,
there is no evidence that Rhodes or anyone else complained
about the pornographic magazines or movies. The record
reveals that Mara, the highest-ranking IDOT employee at
the Yard, discarded pornographic magazines any time he
saw them. Moreover, there is no evidence that Mara
watched any of the pornographic movies, or even knew that
there was a TV and VCR at the Yard. Importantly, the men
kept a “lookout” to alert them if a woman or outsider
approached while they were viewing the movies. Accord-
ingly, Rhodes has failed to set forth sufficient evidence that
the harassment was so pervasive and obvious that IDOT
must be charged with constructive knowledge as explained
in Mason and Zimmerman. It is undisputed that Rhodes’
single complaint of harassment raised with management
addressed only the pornographic picture taped to her
locker. We agree with the district court that this complaint
does not impute knowledge to IDOT of the pornographic
magazines and the existence of the television. Likewise,
there is no evidence that this complaint even remotely
pinpointed the myriad of other allegations of discrimination
alleged in this lawsuit. Cf. Hrobowski v. Worthington Steel Co.,
___ F.3d ___ (7th Cir. 2004), 2004 WL 291973, at *4 (7th Cir.
Feb. 17, 2004). Thus Rhodes’ isolated complaint fails to
establish that she made a concerted effort to inform IDOT
that a problem exists as required in Silk. Rhodes failed to
take advantage of the preventative or corrective opportuni-
ties provided by IDOT and thus her hostile environment
claim fails without reaching a jury because she has not
pointed to adequate evidence showing that IDOT was
negligent in discovering or remedying the harassment.
14 No. 03-1651
C. Retaliation Claim
Finally, Rhodes claims that IDOT retaliated against her by
marking her absent without pay, in violation of company
policy, on what turned out to be her final day of employ-
ment. Title VII prohibits an employer from discriminating
against an employee because that employee has opposed
any practice deemed unlawful under the Act. 42 U.S.C. §
2000e-3(a). The plaintiff may establish a prima facie case of
retaliation and overcome defendant’s motion for summary
judgment using either the direct method or the indirect
method. See Stone v. City of Indianapolis Pub. Util. Div., 281 F.
3d 640, 642 (7th Cir. 2002). Under the direct method, the
plaintiff must present direct evidence of (1) a statutorily
protected activity; (2) an adverse action taken by the
employer; and (3) a causal connection between the two. Id.
at 644.
Under the indirect method, the plaintiff must show that
(1) she engaged in a statutorily protected activity; (2) she
performed her job according to her employer’s legitimate
expectations; (3) despite her satisfactory job performance,
she suffered an adverse action from the employer; and
(4) she was treated less favorably than similarly situated
employees who did not engage in statutorily protected ac-
tivity. Id.; Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th
Cir. 2002); Haywood v. Lucent Techs., 323 F.3d 524, 531 (7th
Cir. 2003). “Under this method, the ‘plaintiff so proceeding
need not show even an attenuated causal link.’ ” Haywood,
id. (internal citation omitted). If the plaintiff establishes
these elements, the burden of production shifts to the
defendant to come forward with a legitimate, noninvidious
reason for its adverse action. Id. Although the burden of
production shifts to the defendant under this method, “the
burden of persuasion rests at all times on the plaintiff.”
Haywood, 323 F.3d at 531 (citing Klein v. Trustees of Indiana
No. 03-1651 15
Univ., 766 F.2d 275, 280 (7th Cir. 1985)). Once the defendant
presents a legitimate, non-invidious reason for the adverse
action, the burden remains with the plaintiff to present
evidence that the defendant’s reason is pretextual. Id.It is unclear whether Rhodes engaged in protected activity
because she failed to comply with IDOT’s request to
formally complain in writing. Cf. Durkin v. City of Chicago,
341 F.3d 606, 615 (7th Cir. 2003) (holding that the plaintiff
employee’s informal complaints did not constitute protected
activity until she complained through the formal channels
of the city’s complaint mechanism). However, we need not
resolve this and other issues because Rhodes’ complaint that
she was marked absent in violation of IDOT policy, on what
turned out to be her last day of work, occurred after Rhodes
failed to follow Lead Worker Morrison’s instruction to tell
either the Lead Lead Worker or the Technician that she
would be absent that day. Although there appears to be a
dispute as to whether the written workplace rules required
Rhodes to inform the Lead Lead Worker of her absence, as
IDOT claims, the fact that Morrison instructed her to tell
either Mara or Poladian about the absence is undisputed.
We find nothing unreasonable in that instruction, nor do we
perceive that Rhodes had any excuse not to comply. Her
failure to notify Mara or Poladian per Morrison’s instruction
therefore constitutes a legitimate, non-pretextual reason for
marking her absent without pay.
III.
The district court correctly granted summary judgment on
Rhodes’ sex discrimination claim under Title VII because
she failed to set forth a materially adverse employment
action under either the direct or indirect method of proof.
16 No. 03-1651
The district court also correctly granted summary judgment
on Rhodes’ hostile environment claim. She did not establish
a basis for employer liability because her alleged harassers
were not her supervisors under Title VII, and she failed to
offer adequate evidence that IDOT was negligent in discov-
ering or remedying the harassment. Finally, summary
judgment was appropriately entered on her retaliation claim
because IDOT had a legitimate, non-pretextual reason for
marking her absent without pay. We therefore AFFIRM the
district court.
ROVNER, Circuit Judge, concurring in part and concurring
in the judgment. Given the undisputed facts and the law of
this circuit, I agree that IDOT is entitled to summary
judgment on each of Rhodes’ claims, and I join Parts I, II.A.,
and II.C. of the majority’s opinion. I write separately to
express my concern about this circuit’s method of identi-
fying supervisors who may render the employer strictly
liable for sexual harassment occurring in the workplace, see
ante at 10-11.
Consistent with this Court’s opinions in Hall v. Bodine Elec.
Co., 276 F.3d 345, 355 (7th Cir. 2002), and Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1034 (7th Cir. 1998),
we reiterate today that an employee must have the authority
to directly affect the terms and conditions of the plaintiff’s
employment in order to qualify as a supervisor and render
the employer vicariously liable for the employee’s harassing
No. 03-1651 17
conduct. Ante at 10-11. The authority to oversee the plain-
tiff’s work is not deemed sufficient to meet that test. Id.,citing Hall at 355. Thus, although Mara and Poladian
managed Rhodes’ work assignments, investigated com-
plaints and disputes, and recommended sanctions for
violations of workplace rules, the court concludes that this
authority is insufficient to make them supervisors.
Although this holding represents a faithful application
of Hall and Parkins, other courts have criticized the super-
visory standard articulated in Hall and Parkins as too nar-
row. See Mack v. Otis Elevator Co., 326 F.3d 116, 126-27 (2d
Cir.), cert. denied, 124 S. Ct. 562 (2003); Dinkins v. Charoen
Pokphand USA, Inc., 133 F. Supp. 2d 1254, 1266 (M.D. Ala.
2001); Entrot v. BASF Corp., 819 A.2d 447, 459 (N.J. Super.
Ct. App. Div. 2003). The Equal Employment Opportunity
Commission as well has indicated that an individual may
qualify as a supervisor not only when he has the power to
hire, fire, promote, demote or reassign the plaintiff em-
ployee, but also when he “has authority to direct the em-
ployee’s daily work activities.” EEOC Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by
Supervisors, No. 915.002, § III.A. (June 18, 1999); see id.
§ III.A.2.
Insistence that the harasser have the power to take such
formal employment actions as hiring, firing, or demotion
before he will be treated as a supervisor strikes me as a
particularly narrow view, and potentially a troubling one in
a case like this. Mara and Poladian held the top two posi-
tions at Rhodes’ workplace. Although they did not have the
power to take formal employment actions vis-à-vis Rhodes,
they necessarily must have had substantial input into those
decisions, as they would have been the people most familiar
with her work—certainly more familiar with it than the off-
site Department Administrative Services Manager. Indeed,
Mara and Poladian were the ones responsible for Rhodes’
18 No. 03-1651
day-to-day assignments and work environment. Viewing
the facts favorably to Rhodes, Mara and Poladian essentially
ran the Arlington Heights Maintenance Yard on IDOT’s
behalf. They were superior not just to her, but to everyone
else at that worksite as well. Consequently, whatever formal
employment authority they lacked, a factfinder reasonably
might conclude that the power IDOT had given them to
manage the Yard on a day-to-day basis enabled or facili-
tated their ability to create a hostile work environment for
Rhodes. See Mack, 326 F.3d at 126; see also Gawley v. Indiana
Univ., 276 F.3d 301, 310-11 (7th Cir. 2001).
Cases like this one suggest that we ought to re-examine
the criteria we have articulated for identifying supervisors.
The standard that this circuit has established has the allure
of drawing a bright line between those who have the power
to make formal employment decisions and those who do
not. But it excludes from the category of supervisor those
employees who, although lacking final authority to hire,
fire, promote, demote, or transfer the plaintiff, nonetheless
enjoy substantial authority over the plaintiff’s day-to-day
work life. To that extent, it is a standard that arguably does
not comport with the realities of the workplace. And to
the extent that employers with multiple worksites vest
the managers of such sites with substantial authority and
discretion to run them but reserve formal employment
authority to a few individuals at central headquarters, our
standard may have the practical, if unintended, effect of
insulating employers from liability for harassment perpe-
trated by their managers.
No. 03-1651 19
CUDAHY, Circuit Judge, concurring. I join Judge Rovner’s
special concurrence to the extent that it suggests the re-
consideration and broadening of this circuit’s announced
criteria for identifying supervisors. This, of course, does not
affect the outcome or rationale of the majority opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-26-04