Yuknis, Carla A. v. 1st Student Inc ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3479
CARLA A. YUKNIS,
Plaintiff-Appellant,
v.
FIRST STUDENT, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 6191—Wayne R. Andersen, Judge.
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SUBMITTED FEBRUARY 21, 2007—DECIDED MARCH 28, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and EVANS,
Circuit Judges.
POSNER, Circuit Judge. The plaintiff, who worked for
the defendant as a part-time school bus driver, com-
plains in this Title VII suit about the creation of a hostile
working environment, plus retaliation for complaining
to the EEOC. There is no evidence at all of retaliation, so
we confine our discussion to the charge of hostile working
environment.
The plaintiff had complained, initially to the company’s
regional vice-president, that “all levels of personnel” at the
facility at which she worked “show blatant disrespect for
2 No. 06-3479
their marital vows, watch pornography, use foul language,
tell vulgar jokes, . . . [and] gamble openly.” She accused
one of her coworkers of giving an assistant manager of the
facility “red underwear made to look like an elephant’s
head, with a sexually-suggestive trunk” at an office party,
and accused another—the manager, no less—that among
other enormities he had referred to a female bus driver (not
the plaintiff) as a “fat ass,” had had an affair with another
female driver, sold Avon products at work, told the
plaintiff that his teenage daughter had watched him walk
from the shower to his bedroom naked, and described an
incident in which his male cat “raped” his female cat.
There is more but this recital will give the flavor. Some of
the plaintiff’s complaints were substantiated (such as the
gambling and the unauthorized sale of Avon products) and
the offenders rebuked by upper management. Other of
her complaints (for example about the manager’s watch-
ing pornography on his computer) were not substan-
tiated. The plaintiff was fired for undermining internal
relations at the facility, and damaging the credibility of the
facility’s management, by her incessant complaining.
None of the speech and conduct that she complained
about was directed at her, except that the manager had told
the story of his naked stroll to the plaintiff directly and
that once when she approached him about buying an
Avon product called “Sensual Moments” he had said if
that was what she wanted she should join him in his office
and shut the door. This pair of suggestive comments,
standing alone, falls far short of the degree of harassment
that creates a hostile working environment actionable
under Title VII. See, e.g., Moser v. Indiana Department of
Corrections, 406 F.3d 895, 902-03 (7th Cir. 2005); Gleason v.
Mesirow Financial, Inc., 118 F.3d 1134, 1145 (7th Cir. 1997);
No. 06-3479 3
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430-31 (7th Cir.
1995); Shepherd v. Comptroller of Public Accounts, 168 F.3d
871 (5th Cir. 1999). There is no liability if “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. General Motors Service Parts Operations, 78 F.3d 1164,
1168 (7th Cir. 1996); see also Adusumilli v. City of Chicago,
164 F.3d 353, 361-62 (7th Cir. 1998).
The other incidents that the plaintiff complains about
illustrate the difference between mere offense on the one
hand and serious harassment on the other. The fact that
one’s coworkers do or say things that offend one, however
deeply, does not amount to harassment if one is not within
the target area of the offending conduct—if, for example,
the speech or conduct is offensive to women and one is a
man, or offensive to whites and one is a black. One could
be the target, as the plaintiff was in the two incidents
we mentioned, and it was targeting that the Supreme
Court seems to have had in mind in Meritor Savings Bank
v. Vinson, 477 U.S. 57, 65 (1986), when it spoke of a
worker’s “right to work in an environment free from
discriminatory intimidation, ridicule, and insult.” See, e.g.,
Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 332-33
(4th Cir. 2003) (en banc); Burns v. McGregor Electronic
Industries, Inc., 989 F.2d 959 (8th Cir. 1993). Or one could
be in the target area because a group of which one was a
member was being vilified, although one was not singled
out. Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir.
1999), and cases cited there; Andrews v. City of Philadelphia,
895 F.2d 1469, 1485 (3d Cir. 1990). Had the manager said
that all women are bitches, cf. Patt v. Family Health Systems,
Inc., 280 F.3d 749, 754 (7th Cir. 2002); Markham v. White, 172
F.3d 486, 488 (7th Cir. 1999); Jennings v. University of North
4 No. 06-3479
Carolina, 444 F.3d 255, 272-73 (4th Cir. 2006), any woman
who heard the remark would wince, because the blanket
charge would encompass her.
Some cases term what we are calling the “target area”
form of actionable harassment “second-hand harassment”
and intimate, or even, as in Gleason v. Mesirow Financial,
Inc., supra, 118 F.3d at 1144, state, that it is categorically less
serious than harassment specifically aimed at the plain-
tiff. E.g., Patt v. Family Health Systems, Inc., supra, 280 F.3d
at 754; Smith v. Northeastern Illinois University, 388 F.3d 559,
567 (7th Cir. 2004). But the line that runs between “you
are a bitch” and “all women are bitches [and you are a
woman (understood)]” is quite a fine one, a point that a
belittling term like “second hand” tends to obscure. The
term (virtually confined to cases in this circuit) has no
analytic function and is better avoided.
In suggesting the alternative term “target area,” we do
not mean to suggest that there must be an intention of
causing distress or offense. A working environment may
be deeply hurtful to women even though the men who
created it were merely trying to please themselves, and
were thus guilty of insensitivity rather than aggression. Cf.
Markham v. White, supra, 172 F.3d at 492; Andrews v. City of
Philadelphia, supra, 895 F.2d at 1485-86; Bundy v. Jackson, 641
F.2d 934, 945 (D.C. Cir. 1981). The darts were aimed
elsewhere, and hit the women by accident. But if as in this
case the charge is the creation of a working environment
hostile to women, the conduct must be the kind that
makes the workplace uncomfortable for women, as dis-
tinct from making it uncomfortable for cat lovers, for
people who violate work rules by selling Avon products
at work, for people offended by adultery, for gamblers,
and for fastidious people, who abhor foul language. The
No. 06-3479 5
point is elementary: the creation of a hostile working
environment is actionable under Title VII only when the
hostility is to a group (or specific members of a group),
such as women, whom the statute protects. Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1993);
Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir. 2007);
Vickers v. Fairfield Medical Center, 453 F.3d 757, 762-66 (6th
Cir. 2006).
Context may be critical to determining the object of
hostility. If a male worker tells a female coworker that his
male cat is raping his female cat, the remark could, in
context, indicate a disregard for women’s feelings (or even
a veiled threat), rather than a disregard for female cats’
feelings. But the plaintiff made no effort to establish such
a context. Even the fact that another female bus driver
was called a “fat ass” did not, standing alone, without
context to illuminate it, imply discrimination against
women. A man can be called a “fat ass,” just as a man can
be called a “bitch.” More important, a gender-specific
term of abuse, such as “son of a bitch,” need not imply
hostility based on the abused person’s sex, Kriss v. Sprint
Communications Co., 58 F.3d 1276, 1281 (8th Cir. 1995), any
more than saying “she is a bad worker” need imply hostil-
ity based on her sex.
More important still, the cat-rape anecdote and the “fat
ass” comment are examples of comments that while they
may, depending on their context, offend in respects
relevant to Title VII, have only a tangential intersection
with the plaintiff. When the manager called one of the
woman drivers a “fat ass,” he may have been using a
term that he would not have used of a man, but what if
anything was he saying about the plaintiff, either directly
or indirectly? And what if a male coworker is believed
6 No. 06-3479
(apparently mistakenly in this case, but that is unimpor-
tant) to be watching pornography on his office computer?
It wasn’t any of the plaintiff’s business what the manager
was looking at on his computer. It is not as if porno-
graphic pictures were exhibited on the walls of the work-
place or emailed to the plaintiff. Markham v. White, supra,172 F.3d at 488, 493; Quinn v. Consolidated Freightways Corp.,
283 F.3d 572, 579 (3d Cir. 2002); O’Rourke v. City of Provi-
dence, 235 F.3d 713, 719-23 (1st Cir. 2001). The relation
between the manager’s watching pornography on his
own screen and the plaintiff’s working environment was
almost as attenuated as if she had learned that he watches
pornography on his computer at home.
One is put in mind of the distinction famously drawn by
John Stuart Mill, in chapter 4 of On Liberty (1859), between
“self-regarding” and “other-regarding” conduct. The
former term refers to acts that inflict a direct harm on one,
such as an assault, or a breach of contract, or an insult,
and the latter to acts that harm one only in the sense that
one is offended to learn about the conduct. The example
Mill gave of an other-regarding act was the distress that
people in Britain felt upon learning that Mormons in Utah
(this was before the Mormon Church renounced polygamy)
were practicing polygamy six thousand miles away. The
counterpart today would be a worker offended by the
fact that a coworker was of a different race or religion. The
manager’s watching pornography was likewise in the
nature of an “other-regarding” act so far as the plaintiff
was concerned.
Intermediate between a “self-regarding” and an “other-
regarding” act is the situation in Leibovitz v. New York City
Transit Authority, 252 F.3d 179, 189-90 (2d Cir. 2001),
where the plaintiff learned of a hostile (to women) work-
No. 06-3479 7
ing environment in another workplace, though of the
same employer.
The more remote or indirect the act claimed to create a
hostile working environment, the more attenuated the
inference that the worker’s working environment was
actually made unbearable, as the worker claims. Offense
based purely on hearsay or rumor really is “second hand”;
it is less credible, and, for that reason and also because it is
less confrontational, it is less wounding than offense based
on hearing or seeing (for example, seeing the pornographic
pictures with which the workplace is festooned); and it is
also more difficult for the employer to control.
The American workplace would be a seething cauldron
if workers could with impunity pepper their employer and
eventually the EEOC and the courts with complaints of
being offended by remarks and behaviors unrelated to the
complainant except for his having overheard, or heard of,
them. The pluralism of our society is mirrored in the
workplace, creating endless occasions for offense. Civilized
people refrain from words and conduct that offend the
people around them, but not all workers are civilized all
the time. Title VII is not a code of civility.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-28-07