Connie Orton-Bell v. State of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1235
CONNIE J. ORTON-BELL,
Plaintiff-Appellant,
v.
STATE OF INDIANA,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 11-CV-805 — William T. Lawrence, Judge.
ARGUED DECEMBER 10, 2013 — DECIDED JULY 21, 2014
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Connie J. Orton-Bell was employed
as a substance abuse counselor at a maximum security prison
in Indiana. An investigator, who had been looking for security
breaches, discovered that night-shift employees were having
sex on Orton-Bell’s desk and informed her. That investigator
told her that he was not concerned about night-shift staff
having sex but suggested she should probably wash off her
desk every morning. When the situation was brought to the
2 No. 13-1235
superintendent’s attention, he agreed and said that, as long as
inmates were not involved, he was not concerned either.
Immediately thereafter, the superintendent discovered that
Orton-Bell was having an affair with the Major in charge of
custody (which, ironically enough, allegedly involved sex on
his desk) and both were terminated. Both separately appealed
their terminations to the State Employees’ Appeals Commis-
sion. The prison settled the Major’s appeal and then called him
to testify against Orton-Bell at her appeal. This tactic enabled
the Major to keep all of his benefits, including his pension, to
quickly get unemployment benefits, and to subsequently begin
working at the prison as a contractor. Orton-Bell was not
afforded similar benefits and opportunities, so she filed this
suit alleging Title VII claims of sex discrimination, retaliation,
and hostile work environment. The district court granted
summary judgment to the state, concluding that Orton-Bell
was not similarly situated to the Major, that she failed to prove
retaliation under either the “direct” or “indirect” methods, and
that the sexual tenor of the prison’s work environment was not
severe or pervasive enough to qualify as hostile. We reverse
with regard to Orton-Bell’s discrimination and hostile environ-
ment claims, but affirm with regard to her retaliation claims.
I. Factual Background
After earning her bachelor’s degree in psychology from Ball
State University in 2006, Connie J. Orton-Bell began working
as a behavioral clinician with at-risk children. In 2007, she was
hired as a Substance Abuse Counselor (“counselor”) for a
contractor at the Pendleton Correctional Facility, a maximum
security prison in Pendleton, Indiana. In 2008, she was hired by
No. 13-1235 3
the Indiana Department of Corrections (“DOC”) and continued
working as a counselor at Pendleton.
The official in charge of Pendleton at the time Orton-Bell
was hired was Superintendent Brett Mize. According to Orton-
Bell, he told her to come to department-head meetings, though
it was not necessary, so that he could “look down the table at
her.” She claims she was not the sole object of his interest
because “a good share of attractive women were there,”
though there was no apparent reason for them to be. Mize also
said that, though other employees could wear jeans on Friday,
she could not “because her ass looked so good that she would
cause a riot.” Without further specifics, Orton-Bell asserts that
such sexual statements by Mize were commonplace. Mize was
fired before the events that precipitated this suit took place.
However, according to Orton-Bell, the pervasive sexual
comments that permeated the prison workplace extended
beyond Superintendent Mize’s admittedly outrageous behav-
ior. Orton-Bell testified that similar sorts of comments were
made by nearly all male employees and almost all the time.
The workplace was “saturated” with sexual comments that
constantly “bombarded” Orton-Bell and other female prison
employees.“From the second you walk into that building, that
is all you are hearing until the second you leave. And if you
meet somebody on the parking lot, you are going to still hear
it. So it’s 100 percent of the time.” For example, male employ-
ees would congregate around the pat-down area to watch
female employees receive pat-downs on their way into the
facility. Orton-Bell Dep. at 96. Pat-downs took place in full
view of this crowd of onlookers; when Orton-Bell asked to be
patted down in a private room, her request was denied. Id. at
4 No. 13-1235
94. Male employees would make sexual comments about
female employees as they were patted down. Id. at 96–97.
Women were patted down more thoroughly than men so that
the male employees could watch. Id. at 92–93. Male employees
frequently commented that they needed a cigarette after
watching Orton-Bell get patted down because it was almost
like having sex for them. Id. at 96. Orton-Bell described the
experience of working in the prison as “an onslaught.” Id. at 97.
Orton-Bell also describes an instance where she was asked
to remove a sweater, which revealed her camisole.1 After she
complained, staff were directed not to order the removal of
similar sweaters, and Orton-Bell does not say that particular
problem reoccurred.
But inappropriate conduct at the facility was not limited to
verbal banter. Orton-Bell became involved in an affair with
Major Joe Ditmer, a 25-year veteran of the DOC who was in
charge of custody at Pendleton. Both of them were married to
other people, but both were separated from their spouses at the
time. Orton-Bell and Ditmer would have sex at her home,
which was nearby, on their lunch breaks. They used their work
email accounts to schedule their rendezvous (in addition to
participating in extensive sexually explicit conversations about
sexual positions, preferences, and games). The superintendent
at the time, Alan Finnan, began to have suspicions about
1
Her camisole was a “spaghetti strap” top that showed her arms but was
otherwise like a t-shirt. In her words, “[i]t goes longer so that when you are
bending over, there is no chance of … any skin showing. [Also, i]t goes
higher than the bra, so if you bend over again, the chances of you showing
something is just – it’s nonexistent.” Orton-Bell Dep. at 95.
No. 13-1235 5
Orton-Bell and Ditmer having a relationship (Superintendent
Mize had already been fired for having an affair with a staffer
from the hospital infirmary). Finnan believed Orton-Bell and
Ditmer’s affair was a violation of the State Code of Ethics and
the DOC’s Standards of Conduct.2
On Thursday, March 4, 2010, Finnan contacted Investigator
Todd Tappy with Internal Affairs to open an investigation into
Ditmer and Orton-Bell. Finnan also asked Captain Karl
Downey about Orton-Bell and Ditmer, and he informed Finnan
that Ditmer had admitted to having sexual intercourse and oral
sex in his office. On Saturday, March 6, 2010, Tappy and
another investigator, Michael Rains, reviewed Orton-Bell and
Ditmer’s work email accounts and discovered numerous
sexually explicit emails.
But this was not the only ongoing investigation. Earlier (we
have not been told the exact date), Orton-Bell and a counselor
she supervised, Diane Ripberger, complained that it appeared
people had been using their desks at night. Terry Silvers, yet
another Internal Affairs Investigator, looked into those
complaints, and into whether there had been any unauthorized
access to their computers. His investigation revealed no
unauthorized access to their computers, but he was able to
2
The Code of Ethics requires employees to maintain “high standards of
honesty, integrity and impartiality,” “mutual respect and professional
cooperation in … relationships with other staff members,” and to “conduct
[themselves], whether on-duty or off-duty, in a manner that will not bring
dishonor or disrepute to the [DOC] or the State of Indiana,” R. 32, Ex. M at
4, and the Standards of Conduct require staff to “conduct themselves at all
times so as to reflect favorably on the Department.” R. 32, Ex. M at 11.
6 No. 13-1235
determine that their desks were being used by night-shift
employees for sexual liaisons. Orton-Bell recollected that she
had cleaned mysterious stains off her desk in the past. Orton-
Bell Dep. at 166. Understandably outraged, Orton-Bell asked
Silvers what they ought to do next, to which he replied, “I
suggest you wash off your desk every day.” Orton-Bell Dep. at
125. Unsurprisingly not satisfied by that solution, Orton-Bell
protested, but Silvers stated, “This is a max[imum] security
prison, staff having sex is no concern to us. As long as it is not
staff and offender we don’t care.” Id. After that, on Thursday,
March 4, 2010, Orton-Bell discovered at a meeting that many
other employees knew her office was used for sex, and that
everyone thought it was quite funny. After learning that
people at the facility were treating this disturbing use of her
workspace as a joke, she complained to Superintendent Finnan
and Investigator Silvers the next day. Silvers acknowledged
that he knew it was a huge joke that her office was being used
for sex all the time, and Superintendent Finnan said he did not
care as long as offenders were not involved.3
Returning to the investigation of Orton-Bell and Ditmer’s
affair, Orton-Bell and Ditmer were interviewed on Monday,
March 8, 2010. Both Orton-Bell and Ditmer admitted to having
a sexual relationship, that it had involved conversations using
their work email accounts, and that they had engaged in sexual
3
This occurred after Finnan had launched the investigation into Orton-Bell
and Ditmer’s affair. Apparently, Finnan’s concern about conduct that would
reflect badly on and “bring dishonor or disrepute” to the prison or Indiana
did not extend to the night shift.
No. 13-1235 7
intercourse in Ditmer’s office. Orton-Bell insists that she only
admitted to this after she was told that hugging and kissing
constituted sexual intercourse, and that was all she meant.
(And because we are reviewing a grant of summary judgment
to the state, we accept her statement as true.) Ditmer had no
such qualifications, and admitted to actual sexual intercourse
and oral sex in his office. The administration at Pendleton
believed that this was “conduct that would interfere with the
staff member’s ability or fitness to effectively perform
require[d] duties” in violation of the DOC Standards of
Conduct. R. 32, Exs. A, M. The next day, Orton-Bell and Ditmer
both received notice that they were suspended until April 7,
2010, and terminated effective April 8, 2010.
Both Ditmer and Orton-Bell appealed their terminations to
the State Employees’ Appeals Commission (“SEAC”). Ditmer’s
appeal ended with a “Final Order of Settlement and Dis-
missal.” This enabled Ditmer to resign in good standing, keep
all the benefits he had earned, including his pension, and to
continue working at the prison as a contractor. Orton-Bell’s
appeal was not successful. It went to a hearing, where Ditmer
testified against her, and the presiding officer determined that
her termination was correct. She took the process “all the way
to the end,” but did not obtain a favorable resolution and
ended up with nothing. Orton-Bell Dep. at 110, 133. As a result
of the different characterizations of their terminations, Orton-
Bell even had significant difficulty obtaining unemployment
benefits. The unemployment office asked for more information
regarding her termination, and when the DOC representative
responded that Orton-Bell had “admitted inappropriate
contact with [an] employee,” her application for benefits was
8 No. 13-1235
denied. Throughout her brief, Orton-Bell tells us that her
unemployment benefits were “delayed,” so apparently she was
able to obtain them eventually.
Orton-Bell brought this suit, alleging sex discrimination,
retaliation, and hostile work environment claims under Title
VII against Indiana. Indiana moved for summary judgment,
which the district court granted. The district court concluded
that Orton-Bell had not offered any evidence that there was a
similarly situated employee from whom she was treated
differently—which defeated both her sexual discrimination
and retaliation claims—and that she had not proven that the
circumstances of her work environment were sufficiently
severe or pervasive to rise to the level of a hostile work
environment. Orton-Bell appeals.
II. Discussion
We review the district court’s summary judgment ruling de
novo. Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir.
2005). Summary judgment is warranted if the evidence, when
viewed in the light most favorable to the non-moving party,
presents “no genuine issue as to any material fact” such that
“the moving party is entitled to a judgment as a matter of law.”
Id. (citing Fed. R. Civ. P. 56(c)). A “court may not assess the
credibility of witnesses, choose between competing inferences
or balance the relative weight of conflicting evidence; it must
view all the evidence in the record in the light most favorable
to the non-moving party and resolve all factual disputes in
favor of the non-moving party.” Id. at 773.
Orton-Bell’s discrimination and retaliation claims may be
supported by both “direct” and “indirect” evidence and may
No. 13-1235 9
be analyzed under both a “direct” and an “indirect” method.
Orton-Bell attacks this dual dichotomy, saying we should just
look at the “totality of the evidence” and not “divid[e] the
evidence into separate types of evidence and separate meth-
ods.” Members of this court have bemoaned the “snarls and
knots” of our Title VII jurisprudence. Coleman v. Donahoe, 667
F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring).4 But, while
these observations have some merit, the law remains the same.
While all relevant direct and circumstantial evidence is consid-
ered (in its “totality”) in both methods, we do indeed consider
the “direct” and “indirect” methods separately when review-
ing summary judgment because we are not “authorized to
abjure a framework that the Supreme Court has established.”
Green v. Am. Fed'n of Teachers/Ill. Fed'n of Teachers Local 604, 740
F.3d 1104, 1106 (7th Cir. 2014). Of course, we should not lose
sight of the fact that both methods are directed at the “funda-
mental question at the summary judgment stage[, which] is
simply whether a reasonable jury could find prohibited
discrimination.” Bass v. Joliet Pub. Sch. Dist. No. 86, No. 13-1742,
2014 WL 1229578, at *4 (7th Cir. Mar. 26, 2014). But because of
the difficulty of proving the employer’s intent “directly,” the
“indirect” method merely gives plaintiffs a “leg up” by (in the
absence of evidence to the contrary) creating a presumption
that an employer’s decision was motivated by “the unlawful
[reason] alleged by the plaintiff,” if the plaintiff can meet the
lower threshold of proving a prima facie case. Gacek v. Am.
4
Indeed, we spare juries the confusion. The “direct” and “indirect”
methods “are for the judge, not the jury.” Achor v. Riverside Golf Club, 117
F.3d 339, 341 (7th Cir. 1997).
10 No. 13-1235
Airlines, Inc., 614 F.3d 298, 301–03 (7th Cir. 2010); see Coleman,
667 F.3d at 845. Given that so much of Orton-Bell’s case focuses
on her hostile work environment claim premised on night-shift
staff using her and her female subordinate’s desks for sex, we
begin there.
A. Hostile Work Environment
“Title VII prohibits the creation of a hostile work environ-
ment.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013).
This doctrine finds its textual grounding in the language of the
statute: “It shall be an unlawful employment practice for an
employer … to discriminate against any individual with
respect to [her] … terms [or] conditions … of employment,
because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a). As
such, to avoid summary judgment on a hostile work environ-
ment claim, a plaintiff must establish four elements: “(1) the
work environment must have been both subjectively and
objectively offensive; (2) her gender must have been the cause
of the harassment; (3) the conduct must have been severe or
pervasive; and (4) there must be a basis for employer liability.”
Chaib v. Indiana, 744 F.3d 974, 985 (7th Cir. 2014) (citing Milligan
v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 383 (7th Cir. 2012)).
Orton-Bell argues that she has offered sufficient evidence
of these elements via testimony of the incident involving night-
shift staff having sex on her desk and of an unending barrage
of sexually charged comments made to her. As we explain
below, there is sufficient evidence of the latter for her hostile
work environment claim to survive summary judgment.
However, because Orton-Bell relies heavily on the sex-on-the-
No. 13-1235 11
desk incident, we first explain why she has failed to prove that
incident meets all the elements.
1. “Sex on the Desk” Incident
Orton-Bell has shown that night-shift staff having sex on
her desk was subjectively offensive, and we agree entirely that
it is objectively offensive and severe. It was also pervasive
because it was revealed to her that, for some time, she had
been working at a desk un-sanitized after being used as a
platform for sex by night-shift employees. And her supervi-
sors’ admitted deliberate indifference is enough for a jury to
find the fourth element satisfied. See Vance v. Ball State Univ.,
133 S. Ct. 2434, 2439 (2013) (noting that negligence is sufficient
to satisfy this element). The difficulty is Orton-Bell’s proving
the second element, that her gender caused the harassment.
She had to show that the night-shift employees had sex on her
desk, and that the investigator told her to clean it up and the
supervisor did not intervene because Orton-Bell was a woman.
[H]arassing conduct need not be motivated by
sexual desire to support an inference of discrimina-
tion on the basis of sex. A trier of fact might reason-
ably find such discrimination, for example, if a
female victim is harassed in such sex-specific and
derogatory terms by another woman as to make it
clear that the harasser is motivated by general
hostility to the presence of women in the workplace.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
However, “[w]hatever evidentiary route the plaintiff chooses
to follow, he or she must always prove that the conduct at
issue was not merely tinged with offensive sexual connota-
12 No. 13-1235
tions, but actually constituted ‘discrimina[tion] … because of …
sex.’” Id. at 81 (emphasis and modification in original); see also
Holman v. Indiana, 211 F.3d 399, 402-03 (7th Cir. 2000) (reiterat-
ing this point in Oncale’s holding).
The notion that night-shift staff had sex on her desk because
she was a woman is pure speculation. The only evidence of
any motive held by the night-shift staff (who have not been
identified) for having sex on her desk is that her office had
curtains and was in a lockable suite near the infirmary, but
accessible with the master key that a night-shift lieutenant
would have. Orton-Bell Dep. at 167. Likewise, there is no
evidence that Investigator Silvers’s comment that she should
clean her desk every morning, and Superintendent Finnan’s
comment that he did not care as long as offenders were not
involved, was based on her being a woman.5 Those comments
are not inherently sex-based, nor do they evince either attrac-
tion or “hostility” to Orton-Bell on account of her being a
woman in the workplace. If there were evidence that the night-
shift staff were using her office because she was a woman, and
her supervisors were indifferent, that would be enough. If
there was evidence that night-shift staff similarly used a man’s
office, and her supervisors intervened in that circumstance but
not in her circumstance, that would be enough. There is
5
If those who had made harassing comments based on sex were the same
people who engaged in sex on Orton-Bell’s desk at night, or were the same
supervisors who ignored her complaint, an inference of discriminatory
motive might be reasonable. But that is not the case here. There is neither
any evidence of who the night-shift staff were and whether they made such
comments, nor is there any evidence that Finnan or Silvers had made
harassing comments.
No. 13-1235 13
neither. Her supervisors’ insensitive and inattentive responses
were callous mismanagement; but absent evidence that this
inaction was based on her sex, it did not violate Title VII.
Counsel for Orton-Bell makes a comment in her brief that
reflects a fundamental misunderstanding of the law. Counsel
states: “The State implies that the complaint of Orton-Bell
about employees having sex on her desk and being told to
wash down her desk every morning does not relate to the
hostile work environment based on sex. It is hard to imagine
how it would not relate to sex. The very word ‘sex’ was the
central part of the complaint.” This is an equivocation. The
conduct was certainly sexual intercourse on her desk, but that
does not mean that night-shift staff had sexual intercourse on
Orton-Bell’s desk because she was of the female sex. There is no
evidence to indicate that, had her conveniently private and
secure, but accessible, office belonged to a man, it would not
have been used in the same manner. See, e.g., Shermer v. Illinois
Dep't of Transp., 171 F.3d 475, 478 (7th Cir. 1999) (holding that
evidentiary void as to motive for making, and details of,
offensive comments doomed Title VII claim). Accordingly, this
incident, while egregious, does not support a hostile work
environment claim.
2. Sexually-Charged Comments and Treatment
The constant barrage of sexually charged comments,
however, was clearly pervasive, offensive, and based on Orton-
Bell’s sex. We also conclude that there is enough evidence for
a jury to find that it was severe, subjectively offensive, and that
there is a basis for holding the state liable.
14 No. 13-1235
Superintendent Mize, the official formerly in charge of the
entire prison, harassed her, ogled her, and ostensibly forbade
her from wearing jeans based on his opinion that “her ass
looked so good that it would cause a riot.” Walking through
the pat-down area, she says she was searched more thoroughly
while men watched and made sexual comments. And she
relays that these kind of comments were not rare, but were
part of a never-ending barrage. We have found less egregious
comments in less egregious contexts to be sufficiently severe.
See, e.g., Boumedi v. Plastag Holdings, LLC, 489 F.3d 781, 786 (7th
Cir. 2007) (reversing summary judgment for employer; at least
18 sex-based comments made over ten months could show
hostile work environment); Rodgers v. Western-Southern Life Ins.
Co., 12 F.3d 668, 675–76 (7th Cir. 1993) (affirming verdict for
plaintiff; referring to plaintiff by a racial slur between five and
ten times during his employment created actionable hostile
work environment). And while “[t]he occasional vulgar banter,
tinged with sexual innuendo, of coarse or boorish workers
would be neither pervasive nor offensive enough to be
actionable,” Wyninger v. New Venture Gear, Inc., 361 F.3d 965,
977 (7th Cir. 2004), these comments were perpetual and
directed at Orton-Bell.
With regard to subjective offensiveness, Orton-Bell testified
that this environment was oppressive and interfered with her
ability to do her job. Regardless, the district court held that
Orton-Bell had not shown that the environment was subjec-
tively offensive. The record does reveal an instance where, in
an email conversation with a co-worker named Bruce Helming,
she participated in vulgar banter. However, while that may
lead a jury to conclude that she was not subjectively offended
No. 13-1235 15
by the environment, one private conversation via email is not
enough for us to conclude, as a matter of law, that she was not
subjectively offended by the many other public, unwelcome
sexually charged comments in the environment.
Finally, we address whether there is a basis for employer
liability.
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. 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 unreason-
ably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to
avoid harm otherwise.
Passananti v. Cook Cnty., 689 F.3d 655, 670 (7th Cir. 2012).
Orton-Bell complained to Assistant Superintendent Kathy
Griffin about the constant sexual comments at the facility.
Orton-Bell Dep. at 91. Orton-Bell reported directly to Griffin,
id. at 52, so her complaints complied with the state’s Sexual
Harassment Policy, which allows employees to report com-
plaints “to supervisors or agency heads.” Defendants’ State-
ment of Undisputed Material Facts at p. 4 (¶ 20). Orton-Bell’s
evidence shows that no corrections were made. She made
repeated complaints about the constant sexual comments,
including complaints to the right individuals, but nothing
16 No. 13-1235
changed. This is enough for a jury to find this element satisfied
(and the defense inapplicable).
Accordingly, because Orton-Bell has offered enough evidence
of every element of her hostile work environment claim for a
jury to find in her favor, it was error to grant summary
judgment on that claim.
B. Retaliation
Orton-Bell also argues that her termination and the differ-
ent treatment she received in relation to her termination were
in retaliation for protected activity, complaining of sex discrim-
ination.6 Specifically, complaining that night-shift employees
were having sex on her desk.7 However, a “complaint must
indicate the discrimination occurred because of sex, race,
national origin, or some other protected class. … Merely
complaining in general terms of discrimination or harassment,
without indicating a connection to a protected class or provid-
ing facts sufficient to create that inference, is insufficient.”
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.
2006) (citing Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147
(7th Cir. 1997)). Orton-Bell’s complaint to Finnan was that the
night-shift staff was using her desk for sex—an undoubtedly
6
Retaliation claims are also treated under both a “direct” and an “indirect”
method, but both methods depend on the plaintiff proving that she engaged
in a protected activity. Coleman, 667 F.3d at 859 (including this element in
the “indirect” method); Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th
Cir. 2008) (same for the “direct” method).
7
Orton-Bell made other complaints, but she bases her retaliation claim
solely on her complaint about sex on her desk.
No. 13-1235 17
valid complaint. But Orton-Bell has not provided any evidence
that she rooted her complaint in the fact that she was a
woman—which is what is required. Neither were the facts
“sufficient to create that inference.” The conduct was disgust-
ing, but that night-shift employees were using a conveniently
private, secure yet accessible office for sex does not indicate
that they were doing so because the office’s daytime occupant
was a woman. And nothing that Orton-Bell said to Finnan
indicated that she was complaining of sex discrimination.
Accordingly, although the district court did not reach this
ground, its grant of summary judgment to Indiana on the
retaliation claim was correct because Orton-Bell has failed to
establish an essential element of this claim under both the
“direct” and “indirect” methods, namely that she had engaged
in a protected activity.
C. Sex Discrimination
Title VII forbids an employer to “discharge any individual,
or otherwise to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges
of employment, because of such individual’s … sex.” 42 U.S.C.
§ 2000e-2. Because we conclude that Orton-Bell has presented
enough evidence to survive summary judgment under the
“indirect” method, we do not address the direct method.
To establish a prima facie case, Orton-Bell must establish that
“(1) she is a member of a protected class, (2) her job perfor-
mance met [her employer’s] legitimate expectations, (3) she
suffered an adverse employment action, and (4) another
similarly situated individual who was not in the protected
class was treated more favorably than the plaintiff.” Burks v.
18 No. 13-1235
Wis. Dep't of Transp., 464 F.3d 744, 750–51 (7th Cir. 2006).
Where an employee who failed to meet expectations claims
that she has been treated differently from a male employee
who similarly failed to meet expectations, the second element
merges into the fourth. See, e.g., Peele v. Country Mut. Ins. Co.,
288 F.3d 319, 329 (7th Cir. 2002) (merging the elements “[w]hen
a plaintiff produces evidence sufficient to raise an inference
that an employer applied its legitimate employment expecta-
tions in a disparate manner”). Here, Orton-Bell is a woman and
was terminated for misconduct, so the controversy is centered
on the fourth element.
In general, a plaintiff who believes another individual is
“similarly situated” must at least show that this “comparator”
(1) “dealt with the same supervisor,” (2) “w[as] subject to the
same standards,” and (3) “engaged in similar conduct without
such differentiating or mitigating circumstances as would
distinguish [his] conduct or the employer's treatment of [him].”
Coleman, 667 F.3d at 847 (citing Gates v. Caterpillar, Inc., 513 F.3d
680, 690 (7th Cir. 2008)). Although in different branches of the
chain of command, Orton-Bell and Ditmer were both fired by
the same ultimate supervisor (Finnan) for the same conduct in
violation of the same standards.
The only question is whether there are “differentiating or
mitigating circumstances as would distinguish” the DOC’s
treatment of Orton-Bell. Orton-Bell and Ditmer are primarily
differentiated by the fact that she was a counselor of two years
and he was a twenty-five-year veteran of the DOC’s Custody
branch. But this cuts both ways. Maybe the DOC was generous
with Ditmer because of his long career. But that also put him
in a position to know better. Thus his offense was also worse.
No. 13-1235 19
Ditmer violated the DOC’s standards of conduct while in the
sensitive leadership position of Major in Charge of Custody (a
para-military leadership role); Orton-Bell was a substance
abuse counselor. If there is any dissimilarity, it is that the affair
compromised Ditmer’s ability to perform his job far more than
it compromised Orton-Bell’s ability to perform hers. And
unlike Orton-Bell, this was not Ditmer’s first work affair.
Ripberger Aff. at 2; Orton-Bell Dep. at 188–89. Accordingly,
because judging comparators is a common-sense inquiry, and
Orton-Bell and Ditmer were fired by the same supervisor for
the same conduct that violated the same standard—and both
appealed the termination—we conclude that for the purposes
of this claim, Ditmer is similarly situated.
Further, they were certainly treated differently— Orton-Bell
was terminated and was banned from working in any capacity
for the DOC. Ditmer, however, was able to enter into a
settlement agreement that permitted him to resign, enabled
him to keep all his benefits including his pension, and allowed
him to work at the prison with an outside contractor (which he
did).8 The DOC seems to have acquiesced to those outcomes as
the results of the SEAC appeal process. But the disparity of
8
Ditmer also got his unemployment benefits without any delay, unlike
Orton-Bell. This stemmed in part from the fact that the DOC provided more
detail about Orton-Bell’s misconduct as a result of her being terminated
instead of being allowed to resign like Ditmer. Thus, even though the
unemployment determinations were made by different officers, the DOC
provided different information stemming from its previous different
treatment of Orton-Bell and Ditmer. So, while there is no evidence the
unemployment office discriminated, the harm from the delay does tie back
to the DOC’s alleged discrimination.
20 No. 13-1235
consequences was the effect of the DOC’s willingness to settle
with Ditmer but not with Orton-Bell. The DOC hints that this
was caused by different litigation strategies, but it fails to
provide any reason it did not offer Orton-Bell the same
settlement terms it gave Ditmer. In fact, Orton-Bell testified
that she asked Ditmer about his settlement but Ditmer re-
sponded that he could not talk to her because of the settlement.
Orton-Bell Dep. at 162. The DOC, focusing on its argument that
Ditmer and Orton-Bell were neither similarly situated nor
treated differently, has not seriously offered a reason for their
disparate treatment. Even if we were to infer the reason that
the DOC hints at—that it was merciful to Ditmer because of his
long career—Orton-Bell has offered sufficient evidence of
pretext. Firing the Major in Charge of Custody for an affair
which compromised his ability to lead (especially given his
repeated past violations of the conduct code) makes sense. But
letting him resign and retain the ability to keep working (with
all attendant benefits) while firing the female counselor with
whom he had an affair is suspect. This conclusion results in
large part from the failure of the parties to develop the record
more about the SEAC process and the DOC’s decision to settle
with Ditmer. Indeed, there was so little development below
that the district court missed the fact that Orton-Bell had even
appealed. Based on the evidence currently available, we
conclude that the discrimination aspect of this suit must go
forward, but more discovery is needed on these issues.
III. Conclusion
Because there is evidence that Orton-Bell was similarly
situated to Ditmer, but treated less favorably, it was error to
grant summary judgment on her discrimination claim. Further,
No. 13-1235 21
because her supervisors failed to remedy the severely sexual-
ized climate at the prison, it was likewise error to grant
summary judgement on her hostile work environment claim.
However, because she has failed to show that her complaint
about night-shift employees having sex on her desk was rooted
in her protected status, it was not a protected complaint, so her
retaliation claim fails. Accordingly, we AFFIRM IN PART and
REVERSE IN PART and REMAND for further proceedings
consistent with this opinion.