Kimberly Passananti v. Cook County , 689 F.3d 655 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1182
K IMBERLY P ASSANANTI,
Plaintiff-Appellant,
v.
C OOK C OUNTY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-02803—John W. Darrah, Judge.
A RGUED M ARCH 28, 2012—D ECIDED JULY 20, 2012
Before M ANION, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. The Day Reporting Center
of the Cook County Sheriff’s Department ran an inten-
sive supervision program that provided services for
non-violent pretrial defendants. Its program reduced
overcrowding in the Cook County Jail and tried to inte-
grate non-violent individuals into society through super-
vised employment, job training, and substance abuse
treatment. Plaintiff Kimberly Passananti was the deputy
2 No. 11-1182
director of the DRC from 2002 until 2007. For several
years, her supervisor was DRC director John Sullivan.
After losing her job in 2007, Passananti sued, claiming that
Sullivan subjected her to sexual harassment and that she
was fired because of her sex. A jury agreed with her
and awarded her a total of $4.1 million in damages:
$4 million in compensatory damages against Cook
County, and $70,000 in compensatory damages and
$30,000 in punitive damages against Sullivan. The
district court granted defendants’ motion for judgment
as a matter of law and entered judgment for the defen-
dants. Passananti v. County of Cook, 2010 WL 3958645(N.D. Ill. Oct. 7, 2010). Passananti appeals.
As the case comes to us, on review of a district court’s
decision to grant judgment as a matter of law despite a
jury verdict in favor of Passananti, we must give her
the benefit of conflicts in the evidence and reasonable
inferences in her favor. We must assume: (a) that Sullivan
repeatedly and angrily called Passananti a “bitch” to her
face and in front of their co-workers; (b) that in 2005,
he trumped up charges against her for violating a DRC
policy against tampering with supervisees’ urine
samples; and (c) that he fabricated an accusation that
she had had sexual relations with a supervisee. As a
result of Sullivan’s accusations, Passananti was tempo-
rarily transferred and ultimately sustained a five-day
unpaid suspension. Sullivan left the DRC in July 2006.
Passananti stayed on, but in 2007, she lost her job when
her position as DRC deputy director was eliminated as
part of county-wide budget cuts.
No. 11-1182 3
On Passananti’s sexual harassment claim, we reverse
the district court and reinstate the jury’s verdict as to
liability. The jury could reasonably treat the frequent and
hostile use of the word “bitch” to be a gender-based
epithet that contributed to a sexually hostile work environ-
ment. Passananti also presented sufficient evidence to
allow the jury to find that the gender-based harassment
she suffered was severe and pervasive, and that she
did not unreasonably fail to take advantage of available
corrective measures in her workplace. However, we
affirm the district court’s decision to set aside the jury’s
verdict on Passananti’s discriminatory termination claim,
which simply lacked any evidentiary support. As we
explain below, there was considerable confusion in the
district court’s handling of the different claims and
damage awards, but we can discern that the jury must
have found that $70,000 was the proper amount of com-
pensatory damages on the sexual harassment claim.
The county is the proper defendant on that claim under
Title VII of the Civil Rights Act of 1964. Punitive damages
are not available against the county itself, so we remand
for entry of judgment in favor of plaintiff and against
the county for the sum of $70,000.
I. Rule 50(b) Issues: Standard of Review and Timeliness
Rule 50 of the Federal Rules of Civil Procedure allows
a district court to enter judgment against a party who has
been fully heard on an issue during a jury trial if
“a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Fed.
4 No. 11-1182
R. Civ. P. 50(a) (motion for judgment as a matter of law),
(b) (renewed motion for judgment as a matter of law). We
give a district court’s grant of a Rule 50 motion rigorous
and de novo review. See Schandelmeier-Bartels v. Chicago
Park Dist., 634 F.3d 372, 376 (7th Cir. 2011) (reversing
grant of Rule 50 motion). In deciding a Rule 50 motion,
the court construes the evidence strictly in favor of the
party who prevailed before the jury and examines the
evidence only to determine whether the jury’s verdict
could reasonably be based on that evidence. See Tart v.
Illinois Power Co., 366 F.3d 461, 464 (7th Cir. 2004), citing
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150-51 (2000). The court does not make credibility determi-
nations or weigh the evidence. See Waite v. Board of
Trustees of Illinois Comm. College Dist. No. 508, 408 F.3d 339,
343 (7th Cir. 2005), citing Reeves, 530 U.S. at 150. Although
the court reviews the entire record, the court “must
disregard all evidence favorable to the moving party
that the jury [was] not required to believe.” Reeves,
530 U.S. at 151.
Before digging into the evidence and the merits, we
must address two procedural issues. Passananti argues
that the district court never should have heard the defen-
dants’ renewed motion for judgment as a matter of law
under Rule 50(b) because (1) they failed first to file a
Rule 50(a) motion for judgment as a matter of law, and
(2) their Rule 50(b) motion was untimely. We disagree
on both points. Rule 50(b) states in relevant part:
If the court does not grant a motion for judgment as
a matter of law under Rule 50(a), the court is consid-
No. 11-1182 5
ered to have submitted the action to the jury subject
to the court’s later deciding the legal questions raised
by the motion. No later than 28 days after the entry
of judgment — or if the motion addresses a jury issue
not decided by a verdict, no later than 28 days after
the jury was discharged — the movant may file a
renewed motion for judgment as a matter of law and
may include an alternative or joint request for a new
trial under Rule 59.
“Because the Rule 50(b) motion is only a renewal of the
preverdict motion, it can be granted only on grounds
advanced in the preverdict motion.” Fed. R. Civ. P. 50(b),
comm. note (2006 amend.); see also Unitherm Food Sys., Inc.
v. Swift-Eckrich, Inc., 546 U.S. 394, 404-05 (2006) (party
forfeited argument not presented in a Rule 50(a) motion
and not renewed in a Rule 50(b) motion).
The trial transcript contradicts the factual basis for
Passananti’s first argument. At the close of plaintiff’s case,
the defense orally moved under Rule 50(a) for judgment
as a matter of law and presented some sort of writing
to the court in support of that motion. The court
reviewed the defense’s written motion and then asked
the plaintiff to respond orally, ultimately taking the
motion under advisement. Tr. Vol. 3B at 36-41. Unfortu-
nately, however, the defense’s written motion discussed
in the transcript was never actually entered in the
court’s docket or made part of the record.
We take this opportunity to remind district courts and
their staffs that it is the district court’s responsibility to
ensure that such documents delivered to the clerk or to
6 No. 11-1182
the judge are made part of the court’s file. See Fed. R. Civ.
P. 5(d)(2), (4). District judges may depend on the help
of the court clerks whom they supervise, but the responsi-
bility remains the judge’s, and here the transcript
indicates that the document was actually in the judge’s
hands.
Like much that happened in this trial, however, this
oversight was harmless. The defendants clearly made a
motion under Rule 50(a) and submitted something on
paper in support of it. In this appeal, the particulars of the
defendants’ Rule 50(a) motion are no longer relevant. It
was not their Rule 50(a) motion that was granted, and
Passananti does not argue that the defendants’ Rule 50(b)
motion, which was granted and is the subject of this
appeal, was beyond the scope of their Rule 50(a) motion.
Passananti also makes no attempt to show that she
was prejudiced in any way by the district court’s error
in failing to docket an important trial document
tendered to the court.1
1
The district court also failed to gather for the record all of the
exhibits admitted or offered as evidence at trial. In its order on
the plaintiff’s motion for reconsideration, the district court
commented: “because neither party filed any trial exhibits on
the docket, other than those submitted in connection with
Defendants’ motion for judgment as a matter of law, it was
difficult to determine whether the exhibit in question had been
offered into evidence.” Passananti v. County of Cook, 2011 WL
198131, at *4 (N.D. Ill. Jan. 18, 2011) (emphasis added). If no
contemporary record is kept, it may be difficult for the trial
(continued...)
No. 11-1182 7
Plaintiff contends next that the defendants’ Rule 50(b)
motion was untimely. It was not. As applicable here, a
Rule 50(b) motion must be filed “no later than 28 days
after the entry of judgment.” The district court did not
enter judgment immediately after the verdict was re-
turned, and in fact did not enter judgment until it ruled
on the defendants’ motion. The Rule 50(b) motion was
therefore timely. Plaintiff takes the argument a step
further, however. Relying on Rule 58, she argues that the
district court committed reversible error by failing to
enter judgment on the jury’s verdict “promptly.” If judg-
ment had been entered promptly, the argument goes,
defendants’ Rule 50(b) motion would have been late. We
put aside the ability of parties to rely on the district court’s
decision not to enter judgment immediately, for the
argument still lacks merit. Rule 58 provides that the clerk
of the court, without awaiting the court’s direction,
must promptly prepare, sign, and enter the judgment
when a jury returns a general verdict, unless the court orders
otherwise. Fed. R. Civ. P. 58(b)(1)(A). The jury reached
its verdict in this matter on June 10. On June 22, the court
1
(...continued)
court to determine after the fact whether a particular exhibit
was offered into evidence, but it is nearly impossible to do so
on appeal. We must again point out that it is the district
court’s responsibility to manage its own files and to ensure
that the record is complete, including all motions, briefs, and
evidence admitted or offered at trial. A district court is cer-
tainly entitled to call upon counsel to assist with this process,
but the ultimate responsibility is the court’s.
8 No. 11-1182
held a status conference and ordered the defense to file
its Rule 50(b) motion by July 21. In other words, the
court ordered otherwise.2
Plaintiff expresses concern that without a firm
deadline, a judgment might never be entered or might be
held hostage indefinitely, citing Ohio-Sealy Mattress
Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 846 (7th Cir. 1978)
(addressing calculation of post-judgment interest). See
also Kiphart v. Saturn Corp., 251 F.3d 573, 587 (6th Cir.
2001) (expressing concern about six-month delay in
entering judgment while Rule 50(b) motion was pending).
We understand the plaintiff’s concern, and Rule 58
makes prompt entry of judgment the norm. Never-
theless, district courts have ample discretion to manage
their cases and to delay entry of judgment if there are
sound reasons to do so. For example, if a verdict would
impose a heavy financial burden on a defendant and
a district court expects to set the verdict aside, it may
be entirely appropriate to delay entry of judgment
because of collateral consequences for the defendant’s
relationship with lenders and others. See, e.g., A.A. Poultry
Farms, Inc. v. Rose Acre Farms, Inc., 683 F. Supp. 680, 683-
84 (S.D. Ind. 1988) (delaying entry of judgment on
2
The briefing was delayed somewhat by plaintiff’s motion for
extension of time to file her response, which was extended
until August 11. Although the plaintiff requested no further
extension of time, her response was not filed until August 12.
The same discretion the court exercised in extending time for
the defendants to file their Rule 50(b) motion was also exer-
cised in favor of the plaintiff in accepting her late filing.
No. 11-1182 9
antitrust verdict of more than $27 million while court
considered and eventually granted defendant’s motion
for judgment as a matter of law), aff’d, 881 F.2d 1396 (7th
Cir. 1989). This case gives us no occasion to consider
the outer boundaries of this discretion. We see no abuse
of discretion in the district court’s decision to postpone
entry of judgment for four months in this case while
it considered and eventually granted the defendants’
motion.
II. Passananti’s Claims
Having passed the procedural obstacles, we turn now
to the merits of Passananti’s substantive legal challenges
to the district court’s Rule 50(b) judgment as a matter of
law. Passananti’s complaint alleged claims of sex dis-
crimination and sexual harassment under both Title VII
and 42 U.S.C. § 1983. The complaint alleged that she
suffered mistreatment at the hands of supervisor
Sullivan and was terminated, and that these events
amounted to sexual harassment and discrimination under
Title VII and a denial of equal protection of the laws
actionable under section 1983. It is not unusual for a
plaintiff’s claims to crystallize as litigation proceeds, and
that’s what happened in this case. In final trial prepara-
tions, Passananti stated her case as follows:
The Plaintiff, KIMBERLY PASSANANTI, claims
that she was subjected to gender discrimination and
sexually harassing conduct by the Cook County Sher-
iff’s Department and Director of the Day Reporting
Unit, John Sullivan, and terminated in March, 2007
10 No. 11-1182
because of her gender. Mrs. Passananti asserts that
the Defendants’ conduct was in violation of Title VII
of the Civil Rights Act of 1991 [sic] and in violation of
the equal protection clause of the 14th Amendment
to the U.S. Constitution.
Joint Statement of the Case, Dkt. 86.3
The law is well established that both Title VII and section
1983 could support both of plaintiff’s claims, for sexual
harassment and discriminatory termination. See, e.g.,
Valentine v. City of Chicago, 452 F.3d 670 (7th Cir. 2006);
Bohen v. City of East Chicago, 799 F.2d 1180, 1187-88 (7th
Cir. 1986); see also Griffin v. City of Opa-Locka, 261 F.3d
1295, 1311-13 (11th Cir. 2001); Moring v. Arkansas Dep’t
of Correction, 243 F.3d 452, 455-56 (8th Cir. 2001); Southard
v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th
Cir. 1997) (collecting cases); Lankford v. City of Hobart, 27
F.3d 477, 480 (10th Cir. 1994). Both theories of liability
support claims of sex discrimination, including termina-
tion based on sex, and sexual harassment is also a type
of sex discrimination. Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986).4
3
Passananti suggests that she also brought independent claims
of discriminatory transfer and suspension. She has failed to
develop those claims on appeal, however, and they are
waived. See United States v. Collins, 604 F.3d 481, 487 n.2 (7th
Cir. 2010).
4
That is not to say that Title VII and § 1983 claims are identical.
For example, only persons “acting under color of law” may be
(continued...)
No. 11-1182 11
Despite this overlapping legal coverage of plaintiff’s
evidence, midway through trial, and unprompted by
the defendants, the district court split Passananti’s claims
into one claim under Title VII and another under § 1983.
On the afternoon of the second day of trial, this exchange
occurred between the court and plaintiff’s counsel:
Court: And your theory of hostile work environment
is, because these two women told the plaintiff about
it, that created a hostile work environment. Is that
your theory?
Counsel: No, that’s not my theory. My theory is that
testimony goes to policy and practice.
Court: And what does policy and practice go to?
What count?
Counsel: Count 3 I believe it is.
Court: What is that count?
4
(...continued)
sued under § 1983, while Title VII applies to all employers
with more than 15 employees. Such differences are not
material to Passananti’s appeal, except for one. Title VII autho-
rizes suit only against the employer. Individual people who
are agents of the employer cannot be sued as employers under
Title VII. Under § 1983, however, individuals may be liable.
Compare Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995)
(holding that supervisor may not held liable in his individual
capacity for discrimination under Title VII), with Patterson v.
County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“individuals
may be held liable under §§ 1981 and 1983 for certain types
of discriminatory acts”).
12 No. 11-1182
Counsel: It’s 1983.
Court: And what are you pleading in 1983?
Counsel: Equal protection.
Court: In what regard? What was the gravamen of the
denial of equal protection?
Counsel: Gender discrimination.
Court: In what specific regard?
Counsel: In terms of her reassigment . . .
Court: Her termination?
Counsel: Her termination.
Court. And this somehow goes to that?
Counsel: Yes. I think this goes to the . . . how that . . .
how women were treated in that unit.
Court: But your theory is that she was discriminated
against by being terminated.
Counsel: Yes.
Court: There’s no relevancy here. I’m going to sustain
the objection.
Tr. Vol. 2B, at 41-42. Based on this exchange, the district
court held that Passananti had brought her sexual harass-
ment claim under Title VII and had brought her discrimi-
natory termination claim under § 1983. The issue in
this exchange, though, was the relevance of one wit-
ness’s testimony to Passananti’s claims, not the legal
framework of her claims. Nothing indicates that
Passananti’s counsel understood or should have under-
No. 11-1182 13
stood the import the district court later gave this dialogue.
Nevertheless, Passananti did not object, and once the
verdict was rendered, the parties followed the court’s lead
in their post-trial and appellate briefing. They treated
Passananti’s sexual harassment claim as having been
brought only under Title VII and treated her discrim-
inatory termination claim as having been brought only
under § 1983. And, if the plaintiff has any sense of this
error, she has not appealed it. In fact she maintains
this construct on appeal. For this reason and no
other, we follow the lead of the parties and the district
court — though, in an attempt to provide a little clarity,
we refer to Passananti’s claims as her sexual harassment
claim and her termination claim.
A. Sexual Harassment Claim
The following facts are drawn from the trial record
and are taken in the light most favorable to Passananti, the
non-moving party who won the jury verdict. Passananti
began working for the Day Reporting Center of the Cook
County Sheriff’s Department in 1994 as an investigator.
In 2002 she was promoted to deputy director of the
DRC. As deputy director, Passananti was responsible
for the day-to-day operations of the DRC. Around that
same time, John Sullivan became director of the DRC
and Passananti’s immediate supervisor.
From 2003 until Sullivan left the DRC in 2006,
Passananti testified, Sullivan’s conduct toward her was
“very demeaning, degrading and demoralizing.” Specifi-
cally, he called her a “bitch” on “numerous occasions,”
14 No. 11-1182
over a “progressive period of time.” Tr. Vol. 1 at 28.
Sometimes he called her a “stupid bitch.” Sullivan also
treated other women in the DRC this way: an investi-
gator in the DRC, Sally Guide-Campillo, testified that as
she was leaving Passananti’s office in April 2006, she
heard Sullivan say to Passananti, “what is that fucking
bitch doing in here this time?” Tr. Vol. 3A at 19-20. A
month later, Guide-Campillo overheard Sullivan tell
another supervisor, “you better instruct that F’n bitch to
dress appropriately,” regarding a female DRC employee.
Id. at 23.
In August 2005, Sullivan called Passananti into his
office and told her that he was going to open an investi-
gation into “a violation.” When Passananti told him
that there was no violation, he started screaming at her
and told her to “shut the ‘F’ up, you lying ‘B’.” He
then informed Passananti that he was seeking her sus-
pension for having sex with a DRC participant, an ac-
cusation that we must assume was a complete fabrica-
tion. Sullivan also accused Passananti and her
subordinate investigators of releasing rather than re-
incarcerating a DRC participant who had been caught
tampering with his urine during a drug test. Prior to this
incident, other “urine tampers” had been handled on a
case-by-case basis and were considered to be minor
infractions. Tr. Vol. 2A at 9. In Passananti’s case, though,
Sullivan forwarded his charges to the Sheriff’s Depart-
ment’s internal affairs office, which was informed that
the charges against her involved “tampering with drug
samples for an inmate, and then improper conduct with
an inmate in a [sexual] relationship.” Tr. Vol. 3A at 53-
No. 11-1182 15
54. During the ensuing investigation, Passananti was
transferred to a different department and given work as
a secretary. She received and served a five-day suspen-
sion without pay, but she was later reinstated to her
position as deputy director of the DRC. The male em-
ployees involved in the same incident were not trans-
ferred and were never disciplined. Tr. Vol. 2A at 12.
To protest the investigation, her transfer, and Sullivan’s
repeated and demeaning use of the word “bitch,”
Passananti wrote a ten-page letter to Dan Gallagher,
special counsel to the Sheriff’s Department. She alerted
him to her belief that she was being targeted for
discipline because she was a woman. Gallagher for-
warded her letter to the Sheriff’s Department’s internal
affairs office, but Passananti’s complaint was not investi-
gated. Sullivan permanently left the department in
July 2006 for medical reasons. Passananti continued at
the DRC until her termination in March 2007. She offered
no evidence at trial that she suffered any sexual harass-
ment between Sullivan’s departure and her termination.
To prevail on her sexual harassment claim under
Title VII, Passananti needed to show the following: (1) her
work environment was both objectively and subjectively
offensive; (2) the harassment she complained of was
based on her sex; (3) the conduct was either severe or
pervasive; and (4) there was a basis for employer lia-
bility. See Dear v. Shinseki, 578 F.3d 605, 611 (7th Cir. 2009).
To be actionable as sexual harassment, the unwel-
come treatment need not be based on “unwelcome sex-
ual advances, requests for sexual favors or other verbal
16 No. 11-1182
or physical conduct of a sexual nature.” Boumehdi v. Plastag
Holdings, Inc., 489 F.3d 781, 788 (7th Cir. 2007), quoting
Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 505 (7th
Cir. 2004); see also Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80-81 (1998). Instead, words or conduct demon-
strating “anti-female animus” can support a sexual harass-
ment claim based on a hostile work environment.
Boumehdi, 489 F.3d at 788. In other words, as the district
court recognized, a plaintiff can proceed on a claim
when the work environment is hostile because it is
“sexist rather than sexual.” Id.
1. Hostile Work Environment Based on Sex
The district court ruled that Passananti’s sexual harass-
ment claim failed because no rational jury could conclude
that Sullivan’s language and conduct were directed at
Passananti because she was a woman. The district judge
considered Sullivan’s statements to be “vulgar, rude,
and ungentlemanly,” but, without additional proof, not
sexist. Passananti, 2010 WL 3958645, at *8. “The mere
fact that a defendant used a pejorative term that is more
likely to be directed toward a female than a male does
not alone establish unwelcome sexual conduct.” Id.,citing Galloway v. General Motors Serv. Parts Operations, 78
F.3d 1164, 1167-68 (7th Cir. 1996), abrogated on other
grounds, National Railroad Passenger Corp. v. Morgan, 536
U.S. 101 (2002).
Our decision in Galloway provides some support for
the district court’s approach, for in that case, the plaintiff
No. 11-1182 17
complained about her treatment by a supervisor who
repeatedly called her a “bitch” or “sick bitch,” and we
ultimately affirmed summary judgment for the em-
ployer on the plaintiff’s sexual harassment claim. A close
reading of Galloway, however, shows that the district
court in this case properly allowed the jury to consider
all the relevant circumstances and that the jury’s verdict
should be upheld. We concluded in Galloway that the
harassment was based not on the plaintiff’s sex but on
personal animosity that arose out of an earlier “failed
relationship” between the plaintiff and the harasser.
78 F.3d at 1168. We took care to limit the scope of our
reasoning in Galloway regarding the use of the word
“bitch”: “We do not suggest, moreover, that the word
‘bitch’ can never figure in a sex discrimination case. When
a word is ambiguous, context is everything.” Id. (emphasis
in original). The word “is sometimes used as a label
for women who possess such ‘women faults’ as ‘ill-
temper, selfishness, malice cruelty, and spite,’ and latterly
as a label for women considered by some men to be
too aggressive or careerist.” Id. In other words, we recog-
nized that such repeated use of the word “bitch” to de-
mean a female employee could support a claim of
sexual harassment if it was sufficiently pervasive or
severe and if the context showed a hostility to the
plaintiff because she was a woman.
This case is different from Galloway because there was
no contextual evidence here that undermined the rea-
sonable interpretation, that Sullivan’s repeated and
hostile use of “bitch” to address and demean Passananti
was based on her sex. No additional proof was necessary
18 No. 11-1182
to allow a jury to find that Sullivan used the word “bitch”
as a gender-specific term and that its impact was to
degrade women in general and Passananti in particular.
We respectfully disagree with the district court on this
point.
We recognize that the use of the word “bitch” has
become all too common in American society, and its
use has permeated many workplaces. Common use,
however, has not neutralized the word as a matter of
law. The Eleventh Circuit sitting en banc issued a stern
opinion on this issue, holding unequivocally that, “when
a co-worker calls a female employee a ‘bitch,’ the word
is gender-derogatory.” Reeves v. C.H. Robinson Worldwide,
Inc., 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (noting
that both the original definition of the term — “the fe-
male of the dog” — and its secondary meanings — “a
lewd or immoral woman” or a “malicious, spiteful, and
domineering woman” — are gender-specific), citing Web-
ster’s Third New International Dictionary 222 (2002). Addi-
tional evidence that “bitch” is “sex based” for purposes
of establishing gender-based harassment is not necessary.
Reeves is consistent with decisions in several other
circuits. “A raft of case law . . . establishes that the use
of sexually degrading, gender-specific epithets, such as
‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch’ . . . has been consistently
held to constitute harassment based upon sex.” Forrest v.
Brinker Int’l Payroll Co., 511 F.3d 225, 229-30 (1st Cir.
2007), citing Winsor v. Hinckley Dodge, Inc., 79 F.3d 996,
1000-01 (10th Cir. 1996) (finding it “beyond dispute” that
plaintiff subjected to “vulgar and offensive epithets” such
No. 11-1182 19
as “whore,” “bitch” and “curb side cunt” could establish
Title VII sexual harassment claim even though abuse
may have been motivated by gender-neutral reasons)
(internal citations omitted); Burns v. McGregor Elec. Indus.,
989 F.2d 959, 964-65 (8th Cir. 1993) (reversing summary
judgment and noting that “a female worker need not be
propositioned, touched offensively, or harassed by
sexual innuendo” to establish sexual harassment claim,
and holding that terms such as “bitch,” “slut,” and “cunt”
directed to female employee amounted to harassment
based on her sex); Andrews v. City of Philadelphia, 895
F.2d 1469, 1485 (3d Cir. 1990) (“[T]he pervasive use of
derogatory and insulting terms relating to women gen-
erally and addressed to female employees personally
may serve as evidence of a hostile environment.”); but
see Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th
Cir. 2000) (opinion of Beam, J.) (“mere use of the word
‘bitch,’ without other evidence of sex discrimination, is
not particularly probative of a general misogynist atti-
tude”), citing Kriss v. Sprint Communications Co., 58 F.3d
1276, 1281 (8th Cir. 1995).
It is also true that the word “bitch” is sometimes directed
not at women but at men. This usage, however, does not
make the word gender-neutral. As the Eleventh Circuit
explained:
[E]ven accepting that Reeves’s co-workers sometimes
used the terms “bitch” and “whore” to refer to men,
this usage may not make the epithets any the
less offensive to women on account of gender. It is
undeniable that the terms “bitch” and “whore” have
20 No. 11-1182
gender-specific meanings. Calling a man a “bitch”
belittles him precisely because it belittles women. It
implies that the male object of ridicule is a lesser
man and feminine, and may not belong in the work-
place. Indeed, it insults the man by comparing him
to a woman, and, thereby, could be taken as humili-
ating to women as a group as well.
Reeves, 594 F.3d at 813.
We do not hold that use of the word “bitch” is harass-
ment “because of sex” always and in every context, just
as we did not hold that it never is in Galloway. Our prece-
dents have made clear that the use of the word in
the workplace must be be viewed in context. See Yuknis v.
First Student, Inc., 481 F.3d 552, 555 (7th Cir. 2007) (“[A]
gender-specific term of abuse, such as ‘son of a bitch,’
need not imply hostility based on the abused person’s
sex any more than saying ‘she is a bad worker’ need
imply hostility based on her sex.”) (emphasis in original)
(internal citation omitted); Galloway, 78 F.3d at 1167-68(rejecting an automatic inference from abuser’s use of
the word “bitch” that his abuse was motivated by
victim’s gender rather than by personal dislike). But we
do reject the idea that a female plaintiff who has been
subjected to repeated and hostile use of the word “bitch”
must produce evidence beyond the word itself to allow
a jury to infer that its use was derogatory towards
women. The word is gender-specific, and it can reasonably
be considered evidence of sexual harassment.
Whether its use is sufficient evidence of actionable
sexual harassment is, of course, another matter. As with so
No. 11-1182 21
many other things, when gender-specific language is
used in the workplace, these cases and others recognize
that context is key. We must proceed with “[c]ommon
sense, and an appropriate sensitivity” to that context to
distinguish between general vulgarity and discriminatory
conduct or language “which a reasonable person in
the plaintiff’s position would find severely hostile or
abusive.” Oncale, 523 U.S. at 82; see, e.g., Reeves, 594 F.3d
at 810 n.4 (“fucking” may strengthen an attack on women
when used as an intensifying adjective before a gender-
specific epithet such as “bitch,” but when used alone the
word “fall[s] more aptly under the rubric of general
vulgarity that Title VII does not regulate”).
In some instances, it will be apparent that although
the language used is gender-specific, the impact of the
words is neutral. But we could not say as a matter of law
in this case that the impact of Sullivan’s language was
gender-neutral. The jury heard testimony that Sullivan
used the word “bitch” regularly in reference to the plain-
tiff. He did not use the word in jest, but instead used
it together with his threats against Passananti’s employ-
ment. Keeping in mind our deference to the jury’s verdict
and plaintiff’s evidence, we must assume that Sullivan
trumped up a charge of a workplace rule violation to
target Passananti (other, male employees were also
charged, but only she was disciplined). Sullivan also
falsely accused Passananti of having sex with a DRC
participant, a charge for which she was also investigated.
(In law enforcement and correctional work, there must
be few accusations more damaging to an employee’s
reputation than to accuse her of having sex with an
22 No. 11-1182
inmate or supervisee.) In this context, it was error to
treat Sullivan’s repeated and hostile use of the word
“bitch” as a matter of law as merely a “vulgar, rude, or
ungentlemanly” workplace jibe. There was enough on
this record for this jury to determine that when Sullivan
called the plaintiff a “bitch,” he was attacking her based
on her sex.
The district court erred in removing this determina-
tion from the jury’s hands and imposing its own finding.
It was up to the jury to decide about context and credi-
bility, such as what Sullivan’s motivations were when
he repeatedly targeted the plaintiff with vulgar, gender-
based epithets, targeted her for discipline, and made
and then followed through on his threat to accuse
her of work-related sexual misconduct. The jury was
instructed properly to assess this evidence and to deter-
mine whether it believed that Sullivan conducted his
campaign against the plaintiff because of her gender. So
instructed, the jury determined that Sullivan’s conduct
was sex-based and was not neutral. Ample evidence in
the record supports its judgment. The district court’s
rationale for overturning the jury’s verdict on this basis
was error.
2. Severe or Pervasive
It was not enough for the plaintiff to show only that
she suffered mistreatment because of her gender. To rise
to the level of an actionable hostile work environment,
the complained-of conduct must have been sufficiently
severe or pervasive to have altered the conditions of her
No. 11-1182 23
employment such that it created an abusive working
environment. See EEOC v. Management Hosp. of Racine,
Inc., 666 F.3d 422, 432 (7th Cir. 2012), citing Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Factors in
this assessment include the severity of the allegedly
discriminatory conduct, its frequency, whether it was
physically threatening or humiliating or merely offensive,
and whether it unreasonably interfered with the em-
ployee’s work performance. See Gentry v. Export Packaging
Co., 238 F.3d 842, 850 (7th Cir. 2001), quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Offhand comments,
isolated incidents, and simple teasing do not rise to
the level of conduct that alters the terms and conditions
of employment. See Adusumilli v. City of Chicago, 164 F.3d
353, 361 (7th Cir. 1998), citing Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998). This assessment must be
made from both subjective and objective viewpoints. See
Gentry, 238 F.3d at 850, quoting Faragher, 524 U.S. at 787(to be actionable, the plaintiff’s work environment must
be “one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to
be so.”) The district court determined that Sullivan’s
treatment of the plaintiff was not sufficiently severe or
pervasive, and overturned the jury’s verdict also on
this basis. Here too, we find error.
There is no question that gender-based comments and
epithets, when used pervasively in the workplace, can
meet the standard for severe or pervasive harassment.
In Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th
Cir. 2007), we reversed summary judgment for an em-
ployer based on the plaintiff’s evidence that her super-
24 No. 11-1182
visor had made “at least eighteen sex-based comments”
to her over the course of ten months, including “that
women do not belong in the pressroom and think they
know everything,” as well as comments directed at the
plaintiff based on how she should dress or how she
was positioned. Id. at 786. We concluded that the super-
visor’s comments were both severe and pervasive
enough to survive summary judgment. See id. at 789.
Our approach in Boumehdi is consistent with that of
other circuits. See, e.g., Tuli v. Brigham & Women’s Hosp.,
656 F.3d 33, 39-40 (1st Cir. 2011) (repeated comments
of male supervisor and co-workers against plaintiff, a
spinal neurosurgeon, were sufficiently severe to sup-
port jury award in favor of plaintiff on hostile work
environment claim; plaintiff was asked to “get up on
the table and dance” at a graduation dinner, was told
that she was “really hot” and was asked to wear a belly-
dancing outfit, and was repeatedly referred to as a
“little girl” while her ability to perform surgery was
questioned); Aponte-Rivera v. DHL Solutions, (USA) Inc.,
650 F.3d 803, 809 (1st Cir. 2011) (upholding jury verdict
in favor of plaintiff on hostile work environment claim
based on evidence that supervisors generally referred
to women as “dumbies” and made several gender-
based comments to plaintiff, including that women were
supposed to do household chores, that the person
running the company had to “have balls,” and that the
company had to be run by a man); Harris v. Mayor and
City Council of Baltimore, 429 Fed. Appx. 195, 202 (4th
Cir. 2011) (reversing summary judgment in favor of
employer on plaintiff’s hostile work environment claim;
No. 11-1182 25
plaintiff showed that harassment was sufficiently severe
or pervasive based on evidence that workshop was deco-
rated with pictures of nude and scantily clad women,
and that women, including plaintiff, were regularly
referred to as “bitches,” “cunts,” and “troublemakers”);
EEOC v. Fairbrook Medical Clinic, P.A., 609 F.3d 320, 328-
30 (4th Cir. 2010) (supervisor targeted plaintiff with
“highly personalized comments designed to demean and
humiliate her” over the course of three years, including
repeated comments about the size of plaintiff’s breasts
and supervisor’s and supervisor’s wife’s genitals, that
were sufficiently severe or pervasive to withstand sum-
mary judgment on plaintiff’s hostile work environment
claim).
In claims of racial harassment, racially-charged words
certainly can suffice. See, e.g., Hrobowski v. Worthington
Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (although
plaintiff failed to show that employer was negligent in
discovering and remedying coworker harassment, his
work environment, in which he was repeatedly subjected
to the word “nigger” and other race-based comments,
was sufficiently severe or pervasive to support an other-
wise actionable hostile work environment claim);
Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675-76
(7th Cir. 1993) (finding an actionable hostile work en-
vironment when supervisors and employees referred to
plaintiff by the term “nigger” between five and ten
times during his employment). We see no reason to
treat gender-based harassment claims any differently as
a matter of law. Context matters, and it will often
present a jury question.
26 No. 11-1182
The defendants do not contend that the jury was in-
structed improperly on this point (or any other). The
jury, which was in the best position to judge witness
credibility and demeanor, heard evidence that Sullivan
called the plaintiff a “bitch” to her face nearly constantly
for several years, from 2003 until 2006. Not only “bitch,”
but, perhaps for greater emphasis, a “lying bitch” and a
“fucking bitch.” See Reeves, 594 F.3d at 810 n.4 (otherwise
gender-neutral profanity can intensify a gender-specific
adjective and can be relevant to a sex harassment claim).
Sullivan used this language against the plaintiff in front
of her co-workers, tending to undermine her authority
in the workplace. Moreover, Sullivan did not use this
gender-charged word in isolation. He also accused
Passananti of violating a department “urine tamper” rule
and of having sex with a DRC participant. These accusa-
tions led to her temporary transfer and suspension.
Applying proper instructions, the jury found that
Sullivan’s epithets and actions unreasonably inter-
fered with the plaintiff’s ability to do her job — after all,
his behavior had a tangible impact. The evidence was
sufficient evidence for the jury to find that Sullivan’s
conduct was so severe and/or pervasive as to have
altered the conditions of her employment through an
abusive working environment.
In support of the district court’s judgment, the defen-
dants argue that the plaintiff’s working conditions
could not have been subjectively so terrible after all
because she did not submit an official departmental
complaint form to internal affairs or to the Inspector
General’s office concerning Sullivan’s harassment. The
No. 11-1182 27
defendants were entitled to make this argument to the
jury, and they did so, but the jury heard other evidence
that pointed in the opposite direction. The plaintiff
did indeed report Sullivan’s conduct. As described
below, she wrote a detailed letter to the Sheriff’s
special counsel. Her letter reached the Inspector
General’s office, but there is no evidence that the
Sheriff’s Department ever conducted an investigation
or followed up in any way on the plaintiff’s com-
plaint. After Passananti complained once to no avail,
the jury easily could have found, as Passananti testified,
that further complaints would have been futile.
Moreover, there is other evidence in the record sup-
porting the jury’s finding that the plaintiff felt sub-
jectively that Sullivan’s treatment was hostile. The day
she was transferred out of the DRC, she became “hysteri-
cal,” crying and yelling, and was unable to drive
herself home. The situation was “horrifying . . . just to
know that somebody had that much — had that much
power over you that no matter what you said, no
matter what the truth was, that it didn’t matter. Nothing
mattered at that point except for where it was going
and how he was screaming at me.” Passananti also
testified that she suffered from ongoing physical ail-
ments as a result of her treatment in the Sheriff’s Depart-
ment, specifically depression, anxiety, insomnia and
stomach problems. Her condition was severe enough
that she sought medical treatment and was prescribed anti-
anxiety medication. From all of this evidence, the jury
easily could have concluded that the plaintiff found
her workplace subjectively hostile even if she did not
file another formal complaint.
28 No. 11-1182
3. Employer Liability and the Faragher-Ellerth Defense
When no tangible employment action is taken against
the employee in the course of the harassment, an
employer may raise an affirmative defense to liability
that must be proved by a preponderance of the evi-
dence. See Burlington Industries Inc. v. Ellerth, 524 U.S.
742, 765 (1998). 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 unrea-
sonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to
avoid harm otherwise. Id.; Faragher v. City of Boca Raton,
524 U.S. 775, 807-08 (1998). This defense attempts to
strike a careful balance. It holds employers liable for
certain specific misuses of supervisory authority while
encouraging all parties involved to take appropriate
steps to avoid harm. See Faragher, 524 U.S. at 805-07. The
district court reversed the jury’s verdict on sexual harass-
ment also on the basis of this affirmative defense,
finding as a matter of law that the defendants satisfied
their burden of showing that they exercised reasonable
care to prevent and correct sexual harassment, and
that Passananti unreasonably failed to take advantage
of available preventative or corrective opportunities.
We disagree.
As an initial matter, we face a confused record as
whether the defendants waived the affirmative defense
and whether it was otherwise appropriate to instruct
No. 11-1182 29
the jury on the defense.5 Although the defendants consis-
tently denied the merits of Passananti’s claims at every
stage of the litigation, the only affirmative defense
they raised in their answer was qualified immunity for
defendant Sullivan. Less than five weeks before trial,
the defendants tried to amend their answer to assert
additional affirmative defenses, including the Faragher-
Ellerth defense. The district court denied the late motion
to amend (rightfully, in our opinion) on the grounds
that the defense had failed to show that their untimely
amendment was not the product of undue delay and
that Passananti would not be unduly prejudiced by the
5
This problem and others were at least facilitated if not caused
by the hands-off approach the district court seemed to take
regarding the jury instructions and verdict form. The court
permitted the parties to draft these crucial documents, and it is
not apparent from the available record on appeal that the
district court played any role in the drafting process other than
holding a very brief conference reviewing the parties’ joint
proposed instructions and directing counsel to modify the
instructions in minor ways to conform to the court’s earlier
ruling and this court’s pattern instructions. See Tr. Vol. 3B at 30-
35. We recognize that busy district judges may prefer to let
parties reach agreement on as many instructions as possible,
especially in civil cases, where agreement can waive what
would otherwise be reversible error. In this case, however, the
end result was an agreed set of instructions and verdict form
that were inconsistent and confusing. Many of these issues
might have been avoided if the court had taken command of
the instructions and taken responsibility for presenting a clear
and coherent set of instructions to the jury.
30 No. 11-1182
amendment. Yet the parties jointly submitted agreed jury
instructions that incorporated the affirmative defense,
and the district court delivered the joint instruction
containing the affirmative defense to the jury, contrary
to its earlier ruling. Because Passananti cooperated in
drafting the proposed instructions and did not object to
the inclusion of the affirmative defense — waiving any
argument she might have had regarding waiver — we
proceed to a more troubling aspect of the defense, but
one that was also waived and probably harmless in the
end.
The Supreme Court has conditioned the availability
of the Faragher-Ellerth defense on the absence of a tangible
employment action. See Pennsylvania State Police v.
Suders, 542 U.S. 129, 143 (2004); Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807-08; Huff v. Sheahan, 493 F.3d 893,
901 (7th Cir. 2008) (trial court committed reversible error
by instructing jury on employer’s affirmative defense
without also instructing jury to decide whether em-
ployer’s denial of case leads to plaintiff and denial of
plaintiff’s transfer were tangible employment actions,
which would have barred the affirmative defense), citing
Jackson v. County of Racine, 474 F.3d 493, 501 (7th Cir.
2007) (liability is “strict” when harassment by super-
visor is accompanied by an official employment
action such as discharge, demotion, or undesirable reas-
signment).
In this case, Passananti presented evidence that she
was subject to tangible employment actions connected to
Sullivan’s harassment. She was transferred to a dif-
No. 11-1182 31
ferent department pending the investigation and was
suspended for five days due to Sullivan’s accusations
that she had violated the “urine tamper” rule and had
had sex with a DRC participant. The jury was not in-
structed to decide whether these employment actions
were sufficiently tied to Sullivan’s harassment so as to
preclude the defendants’ affirmative defense. This lapse
could easily amount to reversible error, see Huff, 493
F.3d at 904-05, but here again, Passananti waived the
issue for appeal. She failed to object to the instruction,
failed to raise the issue in response to the defendants’
Rule 50(b) motion, and failed to raise the issue in her
opening brief on appeal.
The potential error turned out to be harmless. Even
though the jury instructions seem to have erred in favor
of the defense, the jury found that the defendants had
not satisfied their burden. That finding is supported
by sufficient evidence in the trial record. Accordingly,
we reverse the district court’s ruling on this issue.
The defendants built their Ellerth-Faragher defense
on the Sheriff’s General Order 3.7A and Passananti’s
familiarity with it. General Order 3.7A defined sexual
harassment and outlined department procedures for
handling complaints and investigations. The order also
provided a formal complaint form for a complaining
employee to give to her supervisor. (If the supervisor
was the harasser, the complainant was to give the form
to the next person in the chain of command.) The form
was not detailed. It asked for basic information about
the complainant and asked the complainant to “briefly
32 No. 11-1182
summarize the circumstances giving rise to your com-
plaint, including who, what, when, where, time of
incident and witnesses (Use additional sheet if neces-
sary).” The supervisor receiving the report was to
submit the complaint to the Inspector General’s office
through internal affairs. The Inspector General’s office
was responsible for reviewing the claim and conducting
an investigation. Passananti was very familiar with
General Order 3.7A and the Sheriff’s sexual harassment
policy. As part of her job, in fact, she taught the policy
to new recruits. Yet to complain about Sullivan’s
conduct, Passananti did not fill out the form attached
to General Order 3.7A. Her failure to comply with the
policy she trained others to follow was the centerpiece
of the defense. The tactic, though, proved to be a double-
edged sword.
The jury heard evidence that undermined the defen-
dants’ reliance on Passananti’s failure to follow the letter
of the formal complaint procedure. The former director
of internal affairs testified that employees could com-
plain about sexual harassment in any number of ways,
including going to their supervisor, their supervisor’s
supervisor, or directly to the Inspector General’s office.
Tr. Vol. 3A at 43-44. And, having been painted by the
defense as an “expert” in General Order 3.7A, Passananti
herself testified about the difference between the official
department policy and the unofficial department
practice in her actual experience:
The policy says that this is what’s going to happen:
You are going to write a complaint, . . . an investigation
No. 11-1182 33
is going to be opened, we are going to do an investiga-
tion, we are going to question people, we are going
to be fair and open-minded, and we are going to
look at all the facts and we are going to make a deter-
mination. . . . The practice says if you put it in writing
and you make a complaint, you are going to be de-
moted, you are going to be punished, . . . you’re going
to be in a lot of trouble.
Tr. Vol. 1 at 46-47.
Passananti backed up this testimony with details. In
2006, when she was discussing another employee’s com-
plaint of sexual harassment with Sullivan, he told
her, “we can’t have these allegations going on at Day
Reporting” and that “he just wanted this to go away.”
Tr. Vol. 1 at 43, 45. Regarding a second complaining
employee, Sullivan told Passananti that the employee
needed to “quit putting things on F’g paper,” and to
“quit putting documentation on paper and sending it
to the [Inspector General].” Tr. Vol. 1 at 47, 124. The jury
heard other evidence that supported Passananti’s deci-
sion to use outside channels to complain. Jeanie Foster,
a DRC investigator, confirmed Passananti’s belief. She
testified that she had followed the protocol for making
an internal complaint of sexual harassment pursuant
to General Order 3.7A, but the Sheriff’s Department took
no action as a result. Tr. Vol. 2A at 47 (Q: “When you
employed the terms of the policy, was any action
taken?” A: “No.”).
Instead of following the formal policy, Passananti
testified, she sent a detailed letter to the Sheriff’s outside
34 No. 11-1182
counsel, who forwarded the complaint to the Inspector
General’s office, where any sexual harassment com-
plaint was supposed to go. Passananti testified at trial
that she wrote her letter to the lawyer, Gallagher, and
did not complain internally using the official form
because she “knew that if it stayed internally, that it
would never have gotten anywhere, that . . . there’s no
confidentiality. I felt that Mr. Gallagher would take
my best interests to heart and open up an investigation
or get it to the Sheriff so the Sheriff would open up an
investigation as to what was going on in the department.”
Tr. Vol. 1 at 40. She opened her ten-page letter, dated
August 17, 2005, by stating that she was “extremely well
versed” in sexual harassment matters, having previously
served as an expert witness in a federal sexual harass-
ment case on behalf of the Sheriff’s Department. Gen-
erally, Passananti complained that she had:
. . . first hand knowledge that people are doing things
that are not in the best interest of my Sheriff and I
have been privy to enough back door meetings to
know that I am now the target of their aggression.
The number one problem that they have is that I did
not do anything wrong and all they had to do is give
me the respect they would have given a man and
ask me what happened.
Her letter described the circumstances — the “who, what,
when, where, time of incident and witnesses,” to use the
language provided by General Order 3.7A — surrounding
her “unprecedented” transfer pending the investigation
into the “urine tamper incident.” She framed her
detailed description of the urine tamper incident with
No. 11-1182 35
the fact that, at the time of her letter, she was one of four
chiefs in the DRC under investigation for various mis-
deeds. The other three chiefs were male. She was the
only woman, and the only one of the four to be
transferred pending investigation. In other words, she
complained of disparate treatment based on her gen-
der. She told the lawyer that she raised the question
of gender disparity to Sullivan upon being informed
that she was being transferred, but Sullivan “had nothing
further to say.” She testified that she decided not to
include in her letter that Sullivan also had falsely
accused her of having sex with a DRC participant
because she was “mortified” and, although she con-
fronted Sullivan, did not want anyone else to hear
Sullivan’s false accusation. Tr. Vol. 1 at 89-90.
Regarding Sullivan’s language towards her, Passananti
described two incidents in her letter. She first recounted
that on August 5, 2005, at approximately 11:30 in the
morning, Sullivan called Passananti to his office, and, with
the door open and in front of a number of witnesses, he
“began screaming at [Passananti].” Her letter continued:
He screamed “you are on dangerous ground again,”
and I asked “what?”
He screamed “shut the Fuck up!” And began scream-
ing that I let [Investigator] Acevedo get me in trouble
again and I said “what are you talking about?”
He screamed “I said shut up — you Lying Bitch.”
I asked him if he wanted to know the whole story and
he said he didn’t want to hear shit from me and
walked out of the office.
36 No. 11-1182
Later, Passananti and Sullivan spoke again. She was
“crying hysterically” and Sullivan apologized. He apolo-
gized again before she left work that evening. In a second
incident, Sullivan and Passananti were discussing an
office administrative matter. Passananti asked him if
she should ask for a memo from one of the inspectors.
Sullivan responded, “No, you’re a broad, all of these
people bullshit you.”
Attorney Gallagher forwarded Passananti’s letter to the
Inspector General’s office, so her informal written com-
plaint landed in the same office that a formal complaint
made pursuant to General Order 3.7A should have. Yet,
contrary to the directives of General Order 3.7A, no
investigation was ever opened. Passananti also brought
another internal complaint. She complained orally to
Carmalita Wagner, the executive director of the Sheriff’s
training academy. Tr. Vol. 1 at 37-38. Passananti told
Wagner “everything that was going on.” Wagner told
her that Passananti needed to “take one” for the Sheriff,
which Passananti interpreted as meaning that she
needed to “shut up and take it.”
In sum, the jury heard evidence that the Sheriff’s Depart-
ment had adopted an appropriate policy and complaint
procedure, but that in reality the policy and procedure
were ignored. The “mere creation of a sexual harass-
ment policy will not shield a company from its responsi-
bility to actively prevent sexual harassment in the work-
place.” Gentry v. Export Packaging Co., 238 F.3d 842, 847
(7th Cir. 2001). The policy must provide “a meaningful
process whereby an employee can express his or her
concerns regarding an individual within a working envi-
No. 11-1182 37
ronment.” Id. It is not enough that an anti-harassment
policy appears reasonably effective on paper. The policy
also must be reasonably effective in practice. See Manage-
ment Hospitality of Racine, 666 F.3d at 435, citing Clark v.
United Parcel Serv., Inc., 400 F.3d 341, 350 (6th Cir. 2005).
The defendants did not satisfy their burden of showing
the effectiveness of their formal policy. Thus, even as-
suming that it was proper to submit the defense to the
jury, the jury could reasonably conclude that the anti-
harassment policy was ineffective in practice and was
not sufficient to meet the defendants’ burden of proving
their claimed affirmative defense. The jury also could
reasonably find that Passananti acted quite reasonably
in complaining through her letter to lawyer Gallagher,
which reached the office that was responsible for investi-
gating claims of sexual harassment.
At the end of the day, the critical question before the
jury was whether the Sheriff’s Department was put on
notice of the misconduct, “not how the employer came to
have that knowledge.” Cerros v. Steel Tech., Inc., 398 F.3d
944, 952 (7th Cir. 2005) (“The relevant inquiry is . . .
whether the employee adequately alerted her employer
to the harassment, . . . not whether she followed the
letter of the reporting procedures set out in the
employer’s harassment policy.”); see also Phelan v. Cook
County, 463 F.3d 773, 786 (7th Cir. 2006) (finding that
even though plaintiff did not follow the letter of the
harassment policy, the defendant could not reasonably
claim that it did not have sufficient notice of harassment
under negligence standard). General Order 3.7A was
not the only way an employee could raise a complaint
of sexual harassment in the Sheriff’s Department. The
38 No. 11-1182
defendants did not dispute that the Sheriff’s Depart-
ment learned of Passananti’s complaint, which raised
questions of gender discrimination and sexual harass-
ment within the DRC. We do not need to decide here
whether the jury could have found that the defendants
had met their burden on the defense. The jury found
that they had not, and that finding was supported
by ample evidence. The district court erred by resolving
both the question of sexual harassment and the
affirmative defense in favor of defendants as a matter
of law. The jury verdict on liability for the sexual harass-
ment claim must be reinstated.
B. Termination Claim
Passananti also appeals the judgment as a matter of law
on her termination claim. Here again, we construe the
evidence presented at trial strictly in her favor. At trial,
Passananti had to present either direct or circumstantial
evidence showing that she was terminated because of
her gender. See Runyon v. Applied Extrusion Technologies,
Inc., 619 F.3d 735, 739 (7th Cir. 2010), citing Greene v. Potter,
557 F.3d 765, 769 n.1 (7th Cir. 2009). Even under the
stringent standard of review that applies to judgments
as a matter of law, we agree with the district court that
she failed to support this claim. No reasonable jury could
have concluded that plaintiff’s gender played a role in
her March 2007 termination.6
6
Because we affirm the district court’s judgment in favor of
the defendants on Passananti’s termination claim, we need not
(continued...)
No. 11-1182 39
Alexis Herrera was the chief financial officer for the
Sheriff’s Department. In 2007, she was assigned to
prepare a budget that would reduce annual expenditures
in the Department by about $5 million as part of a county-
wide budget reduction, without requiring a reduction
in the jail population. Herrera testified that she initially
proposed to eliminate several community programs
from the Sheriff’s Department. If those proposals had
been accepted, the budget reductions would not have
affected personnel and Passananti would have kept her
job. Tr. Vol. 2B at 73-75. In fact, at the outset of the
process, the Sheriff’s Department advocated full funding
for all personnel, including Passananti’s position.
When the first proposal was made public, however, there
was an outcry. Hundreds of people appeared at public
hearings to speak on behalf of the programs that were
slated for elimination. Tr. Vol. 2B at 75. This pressure
convinced Herrera’s superiors to order her to come up
with an amended proposal, one that made the needed
cuts but retained funding for the community programs.
Id. at 75-76. Herrera’s revised budget proposed cuts to
police officers, janitors, deputy sheriffs, and positions in
the DRC — including Passananti’s position. Id. at 76-79.
Herrera’s recommendation was ultimately approved by
the Cook County Board, and Passananti received notice
on March 3, 2007 that she was to be laid off.
6
(...continued)
address the defendants’ argument that Passananti failed to
satisfy her burden of proving Monell liability against the
municipal defendants to prevail under § 1983.
40 No. 11-1182
There is simply no evidence that the budget decision
was based on Passananti’s gender. When the decision to
eliminate her position was being made, Sullivan was
no longer employed in the DRC. He had gone on
medical leave in July 2006 and never returned to work.
There is no link in the evidence between Sullivan’s
abusive treatment of Passananti and her later termina-
tion. Herrera testified that she was forbidden from
talking with the departments about the proposed layoffs.
She offered unrebutted testimony that she was not
directed by anyone from the Sheriff’s Department to
eliminate Passananti’s position, and she did not have
figures about gender or race, or a list of employee names
in front of her when she was making the recommenda-
tions. No evidence suggests that Herrera was aware
that Passananti held one of the positions she was recom-
mending for termination. See id. at 79.
Passananti argues that the jury was entitled to disbe-
lieve Herrera’s testimony, that she she was singled out
for termination, and that she was the only person whose
job was eliminated in Herrera’s budget proposal. Ac-
cording to plaintiff’s theory, the other positions
Herrera cut were actually unstaffed and the budget cuts
were a smokescreen to cover up the true motiva-
tion of the Sheriff’s Department to cut the budget in
2007 — Passananti’s gender. This is an attempt to substi-
tute speculation for evidence. Sullivan was gone, and
Passananti does not claim or offer evidence that
anyone else in the department harbored any gender-
based animus toward her. Herrera testified without
contradiction that she made the decision to cut
No. 11-1182 41
Passananti’s position and did so unilaterally, without
input from anyone else in the Sheriff’s Department.
Passananti attempts to argue that the other positions that
were eliminated were not actually staffed, but the testi-
mony she cites does not support her contention. See Tr.
Vol. 2B at 88.
Passananti also relies on “Exhibit 2” to support her
theory that Herrera’s testimony was false and that the
2007 budget cuts were actually a cover-up for illegal
gender discrimination. Passananti argues that Exhibit 2
showed that the number of full-time equivalent posi-
tions in the Sheriff’s Department as a whole rose from
6,856.6 to 6,874.3 in 2007, and that overall appropria-
tions also rose from $337,998,421 to $338,129,452. See Pl.
Br. 19-20, citing App. Ex. H.
Given the muddled state of the record, it is not at all
clear that Exhibit 2 was even admitted.7 Even if it was,
those bare figures are meaningless without explanatory
testimony, and Passananti presented no testimony ex-
plaining these figures or this exhibit. The exhibit is over
one hundred pages long. For it to have influenced the
verdict as plaintiff argues, jurors would have had to
find two lines of text on one of those pages during the
trial without any testimony to guide them. Even if the
jurors had managed to find those two lines of text,
7
The district court did not seem to believe that Exhibit 2 had
been admitted, and it refused to provide the exhibit to the
jury during its deliberations. Passananti, 2011 WL 198131, at *4-5.
Passananti has not challenged this ruling on appeal.
42 No. 11-1182
Passananti also fails to explain how it would have
been possible for them to draw any conclusion one way
or the other regarding the decision to cut funding for
her position in the DRC. The figures in Exhibit 2 on
which Passananti relies relate to the entire Sheriff’s De-
partment, not to the DRC, let alone to Passananti. In
short, if Exhibit 2 was the key to showing discrimina-
tory termination, the jury was not given the evidence
it would have needed to reach that conclusion. Without
any evidence from which a reasonable jury could have
concluded that her termination was motivated by her
gender, Passananti’s termination claim must fail. We
affirm the district court’s grant of the defendants’
Rule 50(b) motion on the termination claim.
III. Damages
Because we reinstate the verdict in favor of Passananti
on her sexual harassment claim, but affirm the district
judge’s decision for defendants on her termination
claim, we must address the jury’s damage awards. The
jury found in favor of Passananti and against all defen-
dants on each of her claims, awarding her $4 million in
compensatory damages against the Cook County Sheriff
and $70,000 in compensatory damages and $30,000 in
punitive damages against Sullivan. The defendants
raised no challenge to the damage award in post-trial
briefing, aiming only at the issue of liability, and neither
party has argued on appeal that the damages award
should be remanded to the district court. Because of the
inexact wording of the verdict form and some confusion
No. 11-1182 43
in the district court about lining up the right defendant
with the right legal theory, we might ordinarily have
to order a new trial limited to the issue of damages for
the sexual harassment claim. As it happens, though,
the jury verdict here allows us to do a bit of reverse
engineering to avoid the need for a new trial and leave
in place as much as possible of the jury’s work.
Passananti was claiming two distinct injuries: the
injury from the sexual harassment she suffered while
she was still working, and the injury she suffered from
her later (and unrelated) termination. The best course
in a case claiming more than one distinct injury from
different conduct is usually to ask the jury to determine
liability first and then to determine the amount, if any,
that should be awarded for each distinct injury. Finally,
the jury should be asked any needed questions about
allocating responsibility among multiple defendants. See
generally Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d
293, 312-13 (7th Cir. 2010); id. at 315-16 (Sykes, J., dis-
senting from denial of rehearing en banc). That did not
happen in this case, but the failure to do so was
harmless in the end. All the evidence that Passananti
offered on her sexual harassment claim points to
Sullivan as the perpetrator. She did not offer any
evidence suggesting that any other individual in the
Sheriff’s Department was harassing her. Having failed
to prevail on its affirmative defense, the Sheriff’s De-
partment is vicariously liable for Sullivan’s harassing
conduct under Title VII. See Management Hosp. of Racine,
666 F.3d at 434. No evidence connected Sullivan to
Passananti’s termination, which occurred months after
44 No. 11-1182
he left the department. Even though the jury concluded
wrongly that Passananti’s termination was discrimina-
tory, the jury verdicts against Sullivan provide the
jury’s measure of the injury she suffered from the
sexual harassment.
The verdict as to liability for sexual harassment stands,
but Passananti’s sexual harassment claim was treated,
without objection, as a Title VII claim. Sullivan cannot
be held individually liable under Title VII. See Williams,
72 F.3d at 555 (holding that supervisor may not be
held liable in his individual capacity for discrimination
under Title VII). Thus, the compensatory damage
award and punitive damage award against Sullivan for
sexual harassment must be reversed. As Passananti’s
employer, the Sheriff’s Department can be held liable
for Sullivan’s harassment under Title VII, but it cannot
be held liable for punitive damages. See 42 U.S.C.
§ 1981a(b)(1) (providing that a Title VII complainant
may recover punitive damages “against a respondent
(other than a government, government agency or
political subdivision)”). Using the jury’s award of com-
pensatory damages against Sullivan as the measure
of actual damages, we remand with instructions to
award that amount ($70,000) to Passananti against the
Sheriff’s Department.
Conclusion
To sum up, we reverse the district court’s grant of
the defendants’ motion for judgment as a matter of law
and reinstate the jury verdict in favor of Passananti on
No. 11-1182 45
her sexual harassment claim. We affirm the district
court’s grant of the defendants’ motion for judgment as
a matter of law on Passananti’s termination claim.
We remand with instructions to enter judgment in favor
of Passananti in the amount of $70,000 in compensatory
damages against the Cook County Sheriff’s Department.
The judgment is affirmed to the extent it was in favor
of Sullivan in his individual capacity. On remand,
Passananti may seek a reasonable attorney fee and costs
from the Sheriff’s Department.
7-20-12