MacKenzie, Pamela L. v. Potter, John E. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2007
Decided March 7, 2007
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2599
PAMELA L. MACKENZIE, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division
v.
No. 04 C 4070
JOHN E. POTTER, Postmaster
General, Marvin E. Aspen,
Defendant-Appellee. Judge.
ORDER
Pamela MacKenzie sued her employer, the United States Postal Service,
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., alleging that her
supervisor sexually harassed her and created working conditions so intolerable that
she could not work. The parties filed cross-motions for summary judgment. The
district court granted summary judgment to the Postal Service, finding that there
were no issues of material fact preventing the Postal Service from relying on its
affirmative defense to liability as recognized in Burlington Indus. v. Ellerth, 524
U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
We affirm.
No. 06-2599 Page 2
The facts are presented in a light most favorable to the plaintiff. MacKenzie
worked for the Postal Service’s Palatine facility on the night shift, where she was
occasionally supervised by Edgar Collins. Collins repeatedly harassed MacKenzie
by making sexual comments. On one occasion, he pulled her into a room where he
grabbed her and started kissing her. In addition, Collins refused some of
MacKenzie’s requests for time off, once telling her that she was not “being nice” and
“not giving [him] anything.” MacKenzie tried to ignore Collins’s behavior and did
not report him for seven months after he first started making comments. And
MacKenzie was not the only one subjected to Collins’s advances: several months
earlier a coworker complained about his inappropriate comments. Collins was
disciplined as a result of that complaint.
For MacKenzie “the last straw” came when Collins stole her lunch and said
(excuse our repeating this crude remark), “Hey, baby, when are you gonna give me
some pussy?” MacKenzie could no longer tolerate Collins’s behavior, so she
reported him to the facility’s operation manager, Alan Lipschultz, who had
previously disciplined Collins after the coworker’s complaint. Lipschultz met with
both MacKenzie and Collins, and Collins acknowledged that he made sexual
comments to MacKenzie but denied they were inappropriate. Lipschultz told
Collins that his behavior was inappropriate and told MacKenize that he would
“take care of” the problem. Lipschultz did not report the incident or conduct further
investigations.
The day after the meeting, MacKenzie noticed Collins glaring and nodding
his head at her, and she again complained to Lipschultz. MacKenzie wrote two
letters to Lipschultz describing Collins’s behavior and stating that she felt
threatened even being in the same building as him. Lipschultz issued a Letter of
Warning to Collins for “conduct unbecoming a postal supervisor” because he made
“comments of a sexual nature.” The letter warned Collins that future problems
could result in “suspensions, reduction in grade or pay or REMOVAL from the
Postal Service.”
MacKenzie never returned to work. Over the next several months her
doctors wrote at least eleven letters (many of the letters are identical, with little
detail) stating that she had a depressive disorder due to “work related incidents”
and recommending that she not return to work in the same building as Collins. The
Postal Service offered MacKenzie a “limited-duty” position not supervised by
Collins, but she did not respond, so it advised her that she was considered absent
without leave and subject to possible disciplinary action.
Several months later, Lipschultz informed MacKenzie in two letters that
Collins elected to transfer to another facility and that MacKenzie should return to
her regular assignment. MacKenzie responded with letters from her doctors,
No. 06-2599 Page 3
stating that her condition had deteriorated and that she could now work only the
day shift and perhaps not at all. The Postal Service sent MacKenzie several letters
informing her that she needed to submit to an examination by a Postal Service
physician to determine whether she was fit to return to work. MacKenzie’s
psychologist insisted, though, that the examination take place only at her doctors’
offices. Because MacKenzie refused to attend examinations at any other location,
the Postal Service notified her that she was to be terminated. MacKenzie filed a
grievance, and a year later she agreed to an examination by the Postal Service so
long as her personal physician was in attendance. The Postal Service attempted
three times to schedule the examination, but MacKenzie refused to attend because
she no longer lived in Illinois and her physician’s schedule made planning difficult.
The Postal Service terminated MacKenzie’s employment—nearly three years after
she stopped coming to work.
MacKenzie sued the Postal Service under Title VII, alleging that she was
sexually harassed and constructively discharged, and the parties eventually moved
for summary judgment. For purposes of its motion, the Postal Service conceded
that MacKenzie had been harassed, but asserted an affirmative defense under
Ellerth, 524 U.S. at 765, and Faragher, 524 U.S. at 807, contending that it took
reasonable care to promptly correct Collins’s behavior, but that MacKenzie
unreasonably failed to report the harassment. Under Ellerth and Faragher, when a
person is sexually harassed by a supervisor, the employer is strictly liable when the
employee suffers a “tangible employment action” (which includes a constructive
discharge). Robinson v. Sappington, 351 F.3d 317, 333-34, 336 (7th Cir. 2003). But
if there is no tangible employment action, an employer can avoid liability by
demonstrating that it acted reasonably to prevent the harassment and that the
employee unreasonably failed to take advantage of opportunities to prevent harm.
Jackson v. County of Racine, 474 F.3d 493, 501 (7th Cir. 2007).
In granting the Postal Service’s motion, the district court ruled that
MacKenzie did not suffer a tangible employment action because the harassment
stopped after she reported the conduct so she was not constructively discharged,
and being denied leave periodically did not significantly affect her pay, benefits, or
duties. After ruling that the Postal Service was not strictly liable, the court next
concluded that the Postal Service established that there were no issues of material
fact regarding its defense under Ellerth and Faragher. The court ruled that the
Postal Service took reasonable steps to respond to the earlier complaints from
MacKenzie’s coworker and that it took immediate action to correct the harassment
as reported by MacKenzie. The court also found that MacKenzie’s seven-month
delay in reporting Collins’s behavior was unreasonable.
We review the district court’s judgment granting summary judgment de novo.
Sun v. Bd. of Tr. of Univ. of Ill., 473 F.3d 799, 812 (7th Cir. 2007). Summary
No. 06-2599 Page 4
judgment is proper when, construing the facts in a light most favorable to the
nonmoving party, the moving party can establish that there is no genuine issue of
material fact. Id.; FED. R. CIV. P. 56(c).
MacKenzie first challenges the district court’s conclusion that she did not
suffer at least one tangible adverse employment action. She argues that she
suffered one such action when she was constructively discharged after Lipschultz
failed to take adequate corrective action against Collins’s continuing harassment.
MacKenzie can show that she was constructively discharged if she can
establish that the intolerable work conditions would lead a reasonable employee to
quit. McPherson v. City of Waukegan, 379 F.3d 430, 440 (7th Cir. 2004); Robinson,
351 F.3d at 336. However, MacKenzie did not show that she was constructively
discharged because she was actually fired for failing to follow instructions. See, e.g.,
Jordan v. City of Gary, 396 F.3d 825, 836-37 (7th Cir. 2005) (ruling that employee
could not claim that she was constructively discharged because she was fired).
MacKenzie acknowledged in her deposition that she knew that she was fired. She
also does not dispute that she was fired for failing to follow instructions to attend a
psychological evaluation. See Ellerth, 524 U.S. at 753-54 (stating that plaintiff
must show “that a tangible employment action resulted from a refusal to submit to
a supervisor's sexual demands.”). “We can make it no plainer than to reiterate that
constructive discharge ‘refers to a situation in which an employee is not fired but
quits.’” Jordan, 396 F.3d. at 837 (quoting McPherson, 379 F.3d at 440).
MacKenzie argues that she was also subjected to a tangible adverse
employment action when Collins denied her occasional requests for leave. To
establish her claim, MacKenzie had to show that she was subject to “a significant
change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Hardy v. Univ. of Ill. at Chi., 328 F.3d 361, 364 (7th
Cir. 2003) (internal quotation marks omitted). The adverse action must be
materially adverse and significantly alter the conditions of employment. Griffin v.
Potter, 356 F.3d 824, 829 (7th Cir. 2004).
MacKenzie’s claim amounts only to an inconvenient denial of occasional
leave, and a trier of fact could not find that MacKenzie presented a material issue of
fact as to whether this periodic denial of leave significantly altered the terms of her
employment. MacKenzie asserted not that she was always denied leave, but rather
that she was “sometimes” denied leave and that at other times Collins granted her
requests. She also noted that when her leave was denied, it was sometimes because
other employees had taken the requested days off already. These allegations alone
cannot establish an adverse action. See, e.g., Griffen, 356 F.3d at 829 (ruling that
denial of leave did not amount to adverse employment action, even when combined
No. 06-2599 Page 5
with new shift, transfer to more distant facility, unfair discipline, altered
evaluations, letters of warning, increased responsibilities, and denied parking
permit).
For the first time on appeal, MacKenzie also tries to identify tangible
employment actions in other incidents, including her work-related injury, the fact
that the Postal Service challenged her workers’ compensation claim, and her
decrease in overtime hours when she was attempting to avoid Collins. The Postal
Service contends that MacKenzie waived these arguments by not raising them in
the district court. See Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1033 (7th Cir.
2004). MacKenzie responds that these arguments “evolved” from her earlier
arguments and were based on facts she alleged to the district court. However, these
arguments are more than mere variations of her arguments to the district court;
they are entirely new. In the district court, MacKenzie argued that she suffered a
tangible employment action 1) because she was constructively discharged and 2)
because Collins refused her overtime requests. These new arguments do not relate
to these claims and are therefore waived.
Because MacKenzie did not establish a tangible adverse employment action,
we next consider whether the district court correctly determined that the Postal
Service established the affirmative defense set out in Ellerth and Faragher. See
Jackson, 474 F.3d at 501. An employer, like the Postal Service, avoids liability by
demonstrating that it “‘a) exercised reasonable care to prevent and correct promptly
. . . harassing behavior, and b) that the plaintiff employee unreasonably failed to
take advantage of any preventative or corrective opportunities provided by the
employer or to avoid harm otherwise.’” Jackson, 474 F.3d 493, 501 (7th Cir. 2007)
(quoting Ellerth, 524 U.S. at 765.)
MacKenzie argues that the Postal Service did not satisfy the first prong of
the affirmative defense because a material fact remains about whether it took
reasonable steps to prevent the harassment. She argues that the Postal Service did
not adequately investigate the earlier complaint from her coworker, and that it did
not reasonably act to correct Collins’s behavior towards MacKenzie.
Although Lipschultz’s response was not ideal, the evidence shows that the
Postal Service’s actions were adequate under Title VII. With regard to the
coworker, after she complained Lipschultz met with Collins, instructed him to
prepare a statement about the incident, and ordered him to address the coworker in
a professional manner. MacKenzie has not shown that Collins harassed the
coworker again after Lipschultz spoke with him. With regard to the Postal
Service’s response to MacKenzie’s complaint, it offered her a limited-duty position
in which she would not be supervised by Collins, and it repeatedly offered to restore
her to her position after Collins transferred to another facility. MacKenzie may not
No. 06-2599 Page 6
have been satisfied with the Postal Service’s efforts, but the purpose of the
anti-harassment laws is to prevent further harassment, and the Postal Service’s
actions did just that. See Jackson, 474 F.3d at 502.
The other prong of the test for establishing an affirmative defense requires
the Postal Service to show that MacKenzie unreasonably failed to take advantage of
opportunities to report the harassment. Jackson, 474 F.3d at 502. MacKenzie
argues that the district court erred in ruling that her delay was unreasonable
because it “shifted the blame to the victim for attempting to resolve the issue
herself.” But an employee’s failure to report harassment in a timely fashion can
indicate unreasonable behavior. Id. (citing Ellerth, 524 U.S. at 765); McPherson,
379 F.3d at 441-42. We have rejected arguments similar to MacKenzie’s as
“nothing more than a dissatisfaction with the law.” McPherson, 379 F.3d at 442.
MacKenzie did not report Collins’s harassing behavior for more than seven months
after it began, even though she acknowledged that she knew about the Postal
Service’s policies regarding sexual harassment. MacKenzie has not established any
issue of material fact about whether her delay in reporting harassment was
reasonable. See Gawley v. Ind. Univ., 276 F.3d 301, 312 (7th Cir. 2001) (finding
seven-month delay unreasonable); see also Jackson, 474 F.3d at 502 (four-month
delay unreasonable); McPherson, 379 F.3d at 441-42 (two-year delay unreasonable).
For these reasons, we AFFIRM the district court’s judgment.