Robinson, Melissa v. Sappington, Warren A

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3316
MELISSA ROBINSON, formerly known as
MELISSA SCHROEDER,
Plaintiff-Appellant,
v.
WARREN A. SAPPINGTON, Judge, Sixth Judicial
Circuit, in official capacity and individually,
JOHN P. SHONKWILER, Chief Judge, Sixth Judicial
Circuit, Macon County Circuit Court, in official
capacity and not individually and COUNTY
OF MACON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 99 C 2266—David G. Bernthal, Magistrate Judge.
____________
ARGUED MAY 23, 2003—DECIDED DECEMBER 9, 2003
____________
Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Melissa Robinson brought this cause
of action for hostile work environment sexual harassment
and constructive discharge pursuant to Title VII of the Civil
Rights Act as amended, 42 U.S.C. § 2000e et seq. Her
complaint named her immediate supervisor, Judge Warren
2 No. 02-3316
A. Sappington, in his individual and official capacities; her
purported employer, Macon County, Illinois; and the chief
judge of the state judicial circuit in which Judge Sappington
sat, Chief Judge John P. Shonkwiler, in his official capacity.
The district court entered summary judgment in favor of the
defendants. For the reasons set forth in the following
opinion, we affirm in part and reverse in part the judgment
of the district court, and we remand the case for further
proceedings consistent with this opinion.
I
BACKGROUND
1
A. Facts
1.
Ms. Robinson was hired as a judicial secretary to Judge
Warren Sappington, a judge of the Sixth Judicial Circuit in
Macon County, Illinois, on March 28, 1994. Ms. Robinson,
with the other judicial secretaries, was later reclassified as
a judicial clerk. That position entailed performing secretarial
duties, as well as attending court with the judge to whom
she was assigned, handling docket entries and setting dates
for cases.
At the time that the legal secretaries became judicial
clerks, Janice Shonkwiler, who had been a legal secretary to
Judge John Greanias, was named as an “administrative
1
Because this case comes to us on summary judgment, we “con-
strue all facts in the light most favorable to the non-moving
party,” here Ms. Robinson, “and draw all reasonable and justi-
fiable inferences in favor of that party.” Bellaver v. Quanex Corp.,
200 F.3d 485, 491-92 (7th Cir. 2000).
No. 02-3316 3
assistant.” R.262, Ex.14 at 87. Although Janice Shonkwiler,
in her new capacity, did not supervise the judicial clerks’
daily activities, they “were told that [they] report to her.” Id.Janice Shonkwiler reported directly to Judge Greanias,
presiding judge for Macon County Circuit Court. Judge
2
John P. Shonkwiler was the chief judge of the Sixth Judicial
Circuit, the circuit that included Macon County; however,
Judge Shonkwiler’s chambers were not in Macon County.
2.
When Ms. Robinson began her employment with the
Macon County Circuit Court, she enjoyed a good working
relationship with Judge Sappington. However, beginning in
July 1996, Judge Sappington began inquiring frequently
about Ms. Robinson’s personal life, specifically her relation-
ship with her husband. When Ms. Robinson informed Judge
Sappington that she was separating from her husband and
seeking a divorce, Judge Sappington urged her not to
become sexually promiscuous and offered to buy her a
vibrator so that she would not “mess[] around.” R.262, Ex.14
at 28. Ms. Robinson turned “very red” from embarrassment,
informed Judge Sappington that she did not like to discuss
such topics and left the room. Id. at 30-31.
Also beginning in July, Judge Sappington started telling
Ms. Robinson on a daily basis that she was beautiful. Ms.
Robinson estimates that Judge Sappington said this ap-
proximately 50 to 100 times between the months of July and
November 1996. During the same time period, Judge
Sappington referred to Ms. Robinson as a “blond Demi
2
Judge Shonkwiler is a distant relative of Janice Shonkwiler’s
husband.
4 No. 02-3316
Moore” approximately twenty-five times and, on occasion,
called her a golden goddess. Id. at 82.
In August 1996, for a period of several weeks, Judge
Sappington shook Ms. Robinson’s hand on a daily basis,
both in the morning when they arrived and in the evening
before he left. When Ms. Robinson asked Judge Sappington
why he was doing this, Judge Sappington stated that he
would no longer shake her hand because he realized that he
was doing it for physical contact with her, which was
inappropriate.
August 1996 marked two other incidents of note. On one
occasion, Ms. Robinson was in the courtroom scheduling
court dates with attorneys when Judge Sappington sum-
moned Ms. Robinson to his office. He told her that he did
not like the attorneys speaking to her. When Ms. Robinson
asked why, Judge Sappington commented that she was “a
very beautiful woman” and that “they’re talking to you
today . . . because of the fact that you wore a thin bra and
that [your] nipples were showing.” Id. at 33. Ms. Robinson,
believing that she was dressed professionally and not
perceiving any objectionable behavior on the part of the
attorneys, was very embarrassed by Judge Sappington’s
comments. The incident nearly brought her to tears, and she
rushed home to change her clothes.
On another occasion in August 1996, Judge Sappington
called Ms. Robinson into his office and went into a tirade
because he believed she was involved romantically with an
3
attorney who frequently was in the courthouse. When Ms.
Robinson questioned Judge Sappington as to why he felt
3
Apparently, one of the bases for Judge Sappington’s belief was
that Judge Sappington had observed that Ms. Robinson’s car was
parked next to the attorney’s car after court hours on the previous
Friday.
No. 02-3316 5
he had the right to inquire about the men she saw, Judge
Sappington replied that he could not stand the thought of
Ms. Robinson with any other man. He further elaborated
that he had been drinking over the weekend and that he
“was dealing with issues” concerning “his feelings” towards
Ms. Robinson and his own mortality. Id. at 42. He also
acknowledged that his feelings for Ms. Robinson were
“inappropriate.” Id. at 43-44. Ms. Robinson suggested to
Judge Sappington that he get his feelings under control lest
he endanger his relationship with his wife.
By September of 1996, it became a courthouse rumor that
the relationship between Judge Sappington and Ms. Robin-
son was something more than professional. Judge
Sappington told Ms. Robinson that he wanted to kiss her
in front of the courthouse staff in response to the rumors.
Ms. Robinson expressed disgust at the remark and, knowing
that Judge Sappington purported to be a religious man,
suggested that he should seek forgiveness for such a re-
mark. See id. at 68-69. Judge Sappington laughed at her
suggestion.
On September 9, 1996, Ms. Robinson was in the courtroom
with Judge Sappington. During the proceedings, a woman
had testified that “she had kind of moved around from guy
to guy.” Id. at 49. After Judge Sappington and Ms. Robinson
returned to chambers, Ms. Robinson was placing files on
Judge Sappington’s desk when he grabbed her face. Ms.
Robinson testified that “he brought my face up so that I
made eye contact, and he told me that he wanted me to look
into his eyes so that I fully understood what he was saying.
. . . He told me if he ever found out I was shacking up with
anybody, he would kill me.” Id. at 49-50.
Less than two weeks later, Ms. Robinson had another
troubling encounter with Judge Sappington. On September
6 No. 02-3316
18, 1996, an attorney approached Ms. Robinson and told her
that another judge in the courthouse, Judge John Davis, was
upset with instructions that she (Ms. Robinson) had given
a litigant. Ms. Robinson related the conversation to Judge
Sappington, and Judge Sappington “asked . . . if any sexual
remarks had been made”; Ms. Robinson responded that
they had not. Id. at 71. At that point, Judge Sappington
told Ms. Robinson about a conversation that he had with
Judge Davis a few weeks prior. According to Ms. Robinson,
“Judge Davis asked him [Judge Sappington] if Judge
Sappington wanted me to sit on his face . . . . And Judge
Sappington said that he remarked, yes, he wanted me to sit
on his face.” Id. at 73. The day after he related the comment
to Ms. Robinson, Judge Sappington brought up the com-
ment again and asked if she had any questions about the
comment. Ms. Robinson replied that she did not.
Near the end of September, the judicial clerk for Judge
Scott Diamond became ill. During that time, Judge Diamond
came to speak to Judge Sappington. Ms. Robinson testified
that, “when he came up, I told him that I knew his clerk was
gone, if he was getting behind and if he needed me in any
way that I would help him.” Id. at 78. A few days later,
when Ms. Robinson went into Judge Sappington’s office to
inform him that she was going to Judge Diamond’s office to
pick up some paperwork,
[Judge Sappington] took one of the files that I set on his
desk, flung it over his desk, his coffee cup went flying
across the room and into a metal cabinet. He started
yelling at me, . . . telling me that he would not allow me
to work for any other judge in that building ever, and
he went storming out of the office.
Id. at 79. Ms. Robinson was “visibly upset” by Judge
Sappington’s outburst. Id.
No. 02-3316 7
During the months of August and September, Judge
Sappington also closely monitored Ms. Robinson’s actions
and company. Judge Sappington would note where Ms.
Robinson’s car was parked and whom she was parked next
to; he also would put money in her parking meter for her.
When Ms. Robinson went to lunch with another coworker,
but without Judge Sappington, Judge Sappington would
watch her from his office window. Judge Sappington also
kept track of Ms. Robinson’s activities outside the court-
house. For instance, when Ms. Robinson spent the weekend
at her mother’s farm in September, Judge Sappington—a
private pilot—flew over her mother’s house several times.
Ms. Robinson shared some of these incidents with a co-
worker, Ruth Young. Ms. Robinson also communicated with
Janice Shonkwiler that she (Ms. Robinson) “was having
problems” with Judge Sappington; however, she did not do
so “in a formal way.” R.262, Ex.14 at 87. However, two
incidents occurred in October 1996 that prompted Ms.
Robinson to take formal steps to curb Judge Sappington’s
behavior.
3.
On October 3, 1996, Judge Sappington summoned
Ms. Robinson and an assistant state’s attorney to his court-
room. Judge Sappington asked the state’s attorney to re-
count the facts of a grisly murder in which a woman was
shot, dismembered and decapitated. After the state’s
attorney left the room, Ms. Robinson, who was “very tear-
ful,” asked Judge Sappington “why he did that to me
because there was absolutely no purpose in [the attorney]
coming over there. It wasn’t as though he was signing a
warrant or anything like that and needed any information.”
Id. at 86. Judge Sappington responded that Ms. Robinson
8 No. 02-3316
was “beautiful and naive, and . . . would face a fate like [the
victim] faced.” Id. Ms. Robinson did not know “how to
interpret” Judge Sappington’s actions, but was very fright-
ened by the incident. Id. at 86-87.
After the incident of October 3, 1996, Ms. Robinson
spoke to her family about Judge Sappington’s behavior
and what she should do. Early the following week, Ms.
Robinson spoke formally with Janice Shonkwiler about her
recent experiences with Judge Sappington. She specifically
recounted the more sexually explicit of Judge Sappington’s
comments. Ms. Robinson told Janice Shonkwiler that Judge
Sappington’s behavior since July, culminating with the in-
cident of October 3rd, had made her afraid. According to
Ms. Robinson, Janice Shonkwiler did not advise her what to
do, nor did she inform Ms. Robinson that she would
investigate the complaints.
On October 11, 1996, a local attorney, the one with whom
Judge Sappington had accused Ms. Robinson of being ro-
mantically involved, entered the courtroom during a hear-
ing to speak with Ms. Robinson regarding scheduling. Ms.
Robinson testified that such actions by attorneys were
commonplace and that Judge Sappington had approved of
this procedure in the past. The attorney, apparently real-
izing that there was a conflict with the initial date set for the
proceeding, had returned to secure a later date. Ms. Robin-
son left the courtroom with him to explain that, at the later
date, Judge Sappington would be on a different judicial
rotation for cases. Immediately after Ms. Robinson left the
courtroom, Judge Sappington became visibly upset and
pounded his gavel so hard on the bench that a piece of the
gavel flew off and hit a witness. He stormed out of the
courtroom and “started yelling at [the attorney], telling him
to get upstairs to his chambers.” Id. at 94. Ms. Robinson felt
No. 02-3316 9
that Judge Sappington’s tirade “was based on his feelings
for [her], and he appeared very out of control.” Id.
Janice Shonkwiler observed Ms. Robinson leaving the
courtroom in tears. When Ms. Robinson explained to
Shonkwiler what had occurred, Shonkwiler gave Ms.
Robinson Judge Greanias’ home phone number and told
Ms. Robinson to contact Judge Greanias personally.
4.
Ms. Robinson called Judge Greanias at his home that
afternoon. In her deposition, Ms. Robinson related the
following information concerning that call:
I believe he knew it was me the minute I said some-
thing, and he asked me if I wished to meet him some-
place to talk face to face, and I told him I didn’t believe
I could. I was crying on the telephone. I was very
emotional at that point. He asked me what happened.
I had no knowledge that he’d already been advised,
but further in the conversation I could tell that he gave
some indications he had been. He asked what occurred.
I told him. He made the remark to me that he had
already discussed with Judge Sappington his behaviors
previous, like the week before, which I was not aware
of, and asked me what other occurrences had taken
place.
Id. at 96. Again, she detailed Judge Sappington’s behavior
and comments. Judge Greanias responded that “it was ob-
vious that [Ms. Robinson] was very distraught and con-
cerned about [her] safety . . . and told [her] to take a week’s
administrative leave.” Id. at 101. Judge Greanias indicated
that he would be speaking to Judge Sappington the next
business day; he told Ms. Robinson to contact him after
10 No. 02-3316
work that day so that he could update her on what had
happened and how they would proceed.
Ms. Robinson called Judge Greanias on the specified day.
He indicated that he had spoken to Judge Sappington. He
also told Ms. Robinson that she should remain on leave for
the next few days; when she returned to work, she would
report to Judge Diamond.
5.
When Ms. Robinson returned, she worked for Judge
Diamond for one week. Apparently, however, Judge Dia-
mond’s clerk complained about working for Judge
Sappington and, after that initial week, Janice Shonkwiler
informed Ms. Robinson that she would be transferred back
to Judge Sappington. According to Ms. Robinson, she did
not want to return to Judge Sappington, but was not offered
any alternative; Ms. Robinson testified that “[i]f I wanted
my job, I had to move.” Id. at 107.
After Ms. Robinson returned to work for Judge
Sappington, the relationship was “very cold” and “non-
communicative.” Id. at 109-10. Judge Sappington told Ms.
Robinson “that he was very angry that [she] went to Judge
Greanias without going to him.” Id. at 109.
When Ms. Robinson had been back with Judge
Sappington only a few weeks, Judge Greanias informed Ms.
Robinson that he was going to transfer her to Judge Francis.
The decision, Ms. Robinson was told, arose because of what
Judge Greanias characterized as unfounded criticism of
Judge Sappington by Judge Davis concerning how Judge
Sappington ran his courtroom and managed Ms. Robinson.
Judge Greanias communicated to Ms. Robinson “that he had
No. 02-3316 11
a judge to protect and the only way he could protect that
judge and protect [Ms. Robinson] was for [Ms. Robinson] no
longer to be in that building.” Id. at 111. Judge Greanias
further related to Ms. Robinson that neither Judge Francis,
nor the other employees involved in the proposed move,
were happy about the transfer. Judge Greanias told her that
her first six months with Judge Francis probably would be
“hell” but that things would settle down after that. Id. at
4
113. During this conversation, Judge Greanias also indi-
cated that it was in Ms. Robinson’s “best interest to resign.”
Id. at 111. Ms. Robinson agreed to think about the proposal.
After her discussion with Judge Greanias, Judge
Sappington continued to monitor Ms. Robinson’s actions
and continued to evidence interest in her, despite the anger
he displayed during working hours. Specifically, one day in
November, Ms. Robinson went to work on a Saturday to
pick up some personal items; she did not inform anyone
that she was going. Ms. Robinson explained that:
I was only there a minute and the telephone began
ringing. The only person who knew I was up there
[5]
was Don, and I didn’t answer the phone. I let it kick
over to the answering machine. And it was Judge
Sappington asking me if I would like to meet him
somewhere, have a drink or something.
Id. at 137-38.
4
Ms. Robinson had her own confirmation of Judge Francis’
feelings on the matter. When Judge Greanias informed Judge
Francis of the proposed transfer, Judge Francis left Judge
Greanias’ office, slammed the door behind him and glared at Ms.
Robinson as he left the area.
5
Don Schroeder is Ms. Robinson’s former husband.
12 No. 02-3316
Later in November, Ms. Robinson determined that, after
enduring the difficulties in working for Judge Sappington,
she did not want to endure “hell” for six months in Judge
Francis’ chambers. Consequently, effective November 1996,
Ms. Robinson resigned.
B. District Court Proceedings
After exhausting her administrative remedies, Ms.
Robinson filed a seven-count complaint against Judge
Sappington, Judge Shonkwiler and Macon County. Counts
I and II alleged claims against Judge Sappington in his
official and individual capacities, respectively, for hostile
environment sexual harassment in violation of Title VII.
Counts III and IV alleged hostile environment and quid pro
6
quo sexual harassment against Macon County. In Counts V
and VI, Ms. Robinson alleged hostile environment and quid
pro quo sexual harassment against Judge Shonkwiler in his
official capacity. Finally, in Count VII, Ms. Robinson alleged
that Judge Sappington, as an agent of the State of Illinois,
had denied her equal protection and due process in viola-
tion of 42 U.S.C. § 1983.
1. The Court’s Dismissal of Counts II and VII
Early in the litigation, the defendants filed two separate
motions to dismiss. Judges Sappington and Shonkwiler filed
6
We recognize, as did the district court, that the Supreme Court
has abandoned the distinction between quid pro quo and hostile
environment sexual harassment. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 760-65 (1998); Faragher v. City of Boca Raton,
524 U.S. 775, 807 (1998); Wolf v. Northwest Indiana Symphony Soc’y,
250 F.3d 1136, 1141 (7th Cir. 2001).
No. 02-3316 13
a motion to dismiss Counts I, II, V, VI and VII. With respect
to Counts I and II, Judge Sappington argued that he was not
Ms. Robinson’s employer, and, therefore, he could not be
individually liable for violations of Title VII. Furthermore,
because he was an employee of the State of Illinois and Ms.
Robinson was an employee of Macon County, he could not
be liable in his official capacity for Title VII violations either.
With respect to the § 1983 claim, Judge Sappington argued
that it was barred by the applicable statute of limitations.
Judge Shonkwiler, for his part, argued that he could not be
liable in his official capacity for the alleged Title VII viola-
tions because he was neither the employer of Judge
Sappington nor the employer of Ms. Robinson.
The district court granted in part and denied in part the
judges’ motions. The district court determined that Judge
Sappington could not be held liable under Title VII in his
individual capacity. Additionally, the court determined that
Ms. Robinson’s § 1983 claim was barred by the applicable
statute of limitations. However, the court held that Ms.
Robinson’s complaint stated a claim for hostile work
environment and quid pro quo harassment for which
Judges Sappington and Shonkwiler could be held liable in
their official capacities. Consequently, the court denied the
motion with respect to Counts II, V and VI. Ms. Robinson
7
has not appealed the district court’s dismissal order.
7
Ms. Robinson’s notice of appeal indicates an intent to appeal
only the district court’s disposition of the summary judgment
motions. We note that page three of Ms. Robinson’s initial brief
before this court references Count VII of her complaint as
pending at the time that summary judgment was entered. See
Appellant’s Br. at 3. However, since Ms. Robinson’s brief fails to
(continued...)
14 No. 02-3316
2. The County’s First Motion for Summary Judgment
Shortly after the district court denied the judges’ motion
to dismiss, Macon County also filed a motion to dismiss.
In that motion, the County argued that the court should
enter judgment in its favor because, as a matter of law, it
employed neither Ms. Robinson nor Judge Sappington.
Consequently, because Title VII was directed only at em-
ployer’s actions, it should not be a party to the litigation.
The court denied Macon County’s motion and held that
there were genuine issues of material fact concerning
whether Macon County or the State should be considered
Ms. Robinson’s employer.
3. The Court Enters Summary Judgment for the
Defendants
After the close of discovery, all of the defendants moved
for summary judgment on the remainder of the counts.
Among the arguments forwarded by the defendants were
that, in accordance with the Supreme Court’s decisions
in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), they
had taken reasonable steps to prevent sexual harassment
from occurring, they had taken prompt remedial action
in response to Ms. Robinson’s complaints, and Ms.
Robinson had not suffered a tangible employment action.
Ms. Robinson believed that these arguments amounted to a
belated attempt to assert an affirmative defense that should
have been pleaded in the defendants’ answers.
7
(...continued)
address the issue of the dismissal of the § 1983 claim, we believe
that this was merely a scrivener’s error, and we address the Title
VII claims that remained at summary judgment.
No. 02-3316 15
Judge Shonkwiler then filed a motion for leave to file the
affirmative defenses that had been set forth in the motion
for summary judgment. Prior to ruling on the defendants’
motions for summary judgment, the district court, by min-
ute entry, granted Judge Shonkwiler’s motion to amend the
answer to include the affirmative defenses briefed with the
motion for summary judgment. See Minute Entry of
5/21/02.
The district court later granted the defendants’ motions
for summary judgment. See R.223 at 1. The court first noted
that
it allowed Defendant Shonkwiler to amend the answer
that Defendants Shonkwiler and Sappington originally
filed. The amendment included reference to the
Ellerth/Faragher affirmative defense. Because the State is
the employer of both Shonkwiler and Sappington, this
affirmative defense applies to all claims brought against
the State.
Id. at 11. The district court then turned to the merits of Ms.
Robinson’s claims.
Addressing first the constructive discharge claim, the
district court recited the standard that “[t]o establish con-
structive discharge, an employee must show that she was
forced to resign because her working conditions became
unbearable from the standpoint of a reasonable employee.”
Id. However, the court continued, at the time that Ms.
Robinson resigned her position, her working conditions
were not unbearable. The court explained that, based on Ms.
Robinson’s own testimony, “the conduct (by Sappington)
that she had found offensive had ceased” prior to her
resignation. Id. at 12. Furthermore, continued the court,
16 No. 02-3316
[t]he evidence shows that quitting was not the only
option available to the Plaintiff: Judge Greanias offered
to transfer her to another judge. That offer changed the
calculus facing Plaintiff; quite simply, a reasonable per-
son in her position would not have been compelled to
resign her employment altogether. Plaintiff was entitled
to reject the transfer, but because it revealed that her
hands were not tied, and that resignation was not the
only choice available to her, it shows that she was not
constructively discharged.
Id. at 12-13. The court therefore concluded that Ms.
Robinson’s resignation did not constitute a constructive
discharge.
The court then turned to the issue of whether Ms. Robin-
son had come forth with sufficient evidence to show that
she had been subjected to a hostile work environment and
whether the State could be liable for Judge Sappington’s
allegedly sexually harassing conduct. The court found Ms.
Robinson had come forward with evidence that the conduct
occurred because of Ms. Robinson’s sex, that the actions
constituted harassment and that the conduct created a work
environment that was subjectively hostile to Ms. Robinson.
However, the court determined that the incidents recounted
by Ms. Robinson did not represent an objectively hostile
work environment:
In context, it is clear that although Sappington’s com-
ments and controlling behavior were undoubt-
edly inappropriate and sometimes offensive, they did
not rise to the level of being pervasive or severe.
Sappington did not proposition Plaintiff and he did not
initiate uninvited physical contact of a sexual nature. He
never made advances toward her. He did not attempt to
kiss her or touch her in a sexual way. . . . Sappington’s
conduct was not threatening. Nor can it be said that the
No. 02-3316 17
workplace was permeated with “discriminatory intimi-
dation, ridicule, and insult.” . . . Thus the Court con-
cludes that the sum total of the evidence . . ., however
offensive one might consider it, falls short of creating
the kind of “hellish” environment that the Seventh
Circuit has established as a standard for liability under
Title VII.
Id. at 20 (internal citations omitted).
Because the court concluded that Ms. Robinson had not
suffered a hostile work environment, it acknowledged that
it did not have to address any other issues raised by the
summary judgment motion or response. Nonetheless, the
court went on to consider whether, assuming Ms. Robinson
had established a prima facie case, the State of Illinois could
be held liable for the alleged harassment.
Quoting the Supreme Court’s decision in Faragher, 524
U.S. at 807-08, the court stated that the employer may be
subject to vicarious liability to an employee for a hostile
work environment created by a supervisor with immediate
authority over the employee. See id. at 21. However, when
no tangible employment action had been taken, “ ‘a defend-
ing employer may raise an affirmative defense to liability or
damages . . . .’ ” Id. (quoting Faragher, 524 U.S. at 808).
Looking to the question of whether there had been a tan-
gible employment action, the court noted that the Seventh
Circuit had not ruled on the issue of whether constructive
discharge could be a “tangible employment” action for
purposes of Ellerth/Faragher. However, it found persuasive
the Second Circuit’s reasoning in Caridad v. Metro-North
Commuter Railroad, 191 F.3d 283 (2d Cir. 1999), in which the
Second Circuit held that constructive discharge could not
constitute a tangible employment action. Consequently, Ms.
Robinson’s alleged constructive discharge could not subject
the State to strict liability under Title VII.
18 No. 02-3316
Given its conclusion that the harassment had not resulted
in a tangible employment action, the court turned to the
Judges’ affirmative defense that there had been reasonable
steps taken both to prevent and to correct promptly any
harassing behavior. With respect to prevention, the court
acknowledged that the Macon County Circuit Court had not
posted nor promulgated a sexual harassment policy to its
employees. However, the court determined that this
consideration was not dispositive.
The evidence shows that Plaintiff was aware of the
procedure to follow in the event of problems. Therefore,
although the State might have done better at posting the
policy and informing employees about it even though
they were in a temporary facility, in light of the circum-
stances in this case, the Court concludes that the undis-
puted facts show that Plaintiff knew how to obtain
assistance—and sought that assistance—when she
began experiencing problems.
Id. at 24. Furthermore, with respect to the employer’s efforts
to correct promptly any harassing environment, the court
stated that “if the employer’s response effectively ends the
sexually harassing conduct, the response must be consid-
ered reasonable.” Id. at 25. Therefore, because Judge
Sappington’s offensive conduct ceased upon Ms. Robinson’s
return to work for him, the response to the alleged harass-
ment was reasonable. Consequently, summary judgment on
behalf of Judge Sappington in his official capacity (as an
agent of the State of Illinois) on Count I was appropriate.
The court reached the same conclusion with respect to
Counts V and VI against Judge Shonkwiler. “Both claims,”
explained the court, “are brought against Shonkwiler in his
official capacity, therefore, they both are, in essence, claims
against the State.” Id. at 27. Therefore, the reasons why the
No. 02-3316 19
State was not liable with respect to Judge Sappington
applied with equal force to the claims against Judge
Shonkwiler.
Finally, with respect to the claims against Macon County,
the court held that it need not resolve the issue whether
Macon County was a joint employer with the State of
Illinois because it had determined that the conduct at issue
did not create an actionable hostile environment.
Moreover, even assuming that Defendant Sappington’s
conduct created a hostile environment, the State suc-
cessfully established that it could not be held liable
because it effectively stopped the harassing behavior.
The fact that the remedy was set in motion by Judge
Greanias, an agent of the State of Illinois, does not mean
that Macon County would be liable even if it was
determined to be Plaintiff’s sole employer. For the same
reasons that the State cannot be held liable, Macon
County cannot be held liable.
Id. at 28. Therefore, summary judgment in favor of all the
defendants was appropriate.
Ms. Robinson timely appealed.
II
DISCUSSION
Ms. Robinson maintains that the district court erred when
it entered summary judgment in favor of the defendants.
Specifically, Ms. Robinson argues that the facts, when
construed in her favor, establish a prima facie case of hostile
work environment sexual harassment. Additionally, she
contends that the district court erred in allowing the
defendants to amend their pleadings at the summary
20 No. 02-3316
judgment stage to include additional affirmative defenses.
We review a district court’s grant of summary judgment de
novo, construing all facts in a light most favorable to the
nonmoving party, see Turner v. J.V.D.B. & Assocs., Inc., 330
F.3d 991, 994 (7th Cir. 2003), and “[w]e review the district
court’s grant of a motion to amend for abuse of discretion,”
E. Natural Gas Corp. v. Aluminum Co. of America, 126 F.3d
996, 999 (7th Cir. 1997). We turn first to the question
whether the district court erred in its determination that Ms.
Robinson had not established a prima facie case of sexual
harassment due to a hostile work environment.
A. Hostile Work Environment
Title VII forbids an employer,
(1) to fail or refuse to hire or to discharge any individ-
ual, 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(a)(1). Ms. Robinson may establish a
violation of Title VII by proving that she was subjected to a
hostile work environment. To establish a prima facie case of
hostile environment sexual harassment, a plaintiff must
demonstrate that: (1) she was subjected to unwelcome
sexual harassment; (2) the harassment was based on sex; (3)
“the sexual harassment had the effect of unreasonably
interfering with the plaintiff’s work performance in creating
an intimidating, hostile or offensive working environment
that affected seriously the psychological well-being of the
plaintiff;” and (4) there is a basis for employer liability.
Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027,
1032 (7th Cir. 1998); see also Hall v. Bodine Elec. Co., 276 F.3d
345, 355 (7th Cir. 2002). The third prong of the prima facie
No. 02-3316 21
case requires both a subjective and objective inquiry,
compelling the court to ask whether a reasonable person
would find the environment hostile. See Haugerud v. Amery
Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001).
In this case, the district court found that there was un-
welcome sexual harassment, that the harassment occurred
on account of Ms. Robinson’s sex, and that the harassment
8
created a subjectively hostile work environment. However,
the court concluded that there was not sufficient support in
the record that would permit a jury to find an objectively
hostile environment. We respectfully disagree.
“In order to survive summary judgment on a hostile work
environment claim, a plaintiff must present evidence that
would establish that the allegedly hostile conduct was so
severe or pervasive as to create an abusive working environ-
ment in violation of Title VII.” Russell v. Bd. of Trs. of the
Univ. of Illinois at Chicago, 243 F.3d 336, 342-43 (7th Cir.
2001); Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999)
(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)). The resolution of this fact-intensive inquiry “is not,
and by its nature cannot be, a mathematically precise test.”
8
The district court also noted that there was a basis for imputing
liability to the State of Illinois because “[a]n employer is subject
to vicarious liability to a victimized employee for an actionable
hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee.” R.223 at 21
(citing Hill v. Am. Gen. Fin., Inc., 218 F.3d 639, 642 (7th Cir. 2000)).
However, the district court went on to determine that the State
had established an affirmative defense to the harassment because
it had not resulted in a tangible employment action and because
it had taken reasonable steps to prevent and to correct the
offending conduct. See id. at 21-26. We shall discuss the availabil-
ity of affirmative defenses infra at II.B.
22 No. 02-3316
Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993); Hutchison v.
Amateur Elec. Supply, Inc., 42 F.3d 1037, 1043 (7th Cir. 1994).
We must consider “all the circumstances,” including “the
frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Harris,
510 U.S.at 23; see also Haugerud, 259 F.3d at 693; Russell, 243
F.3d at 343.
We have observed that drawing the line between action-
able and nonactionable sexual harassment “is not always
easy.” Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th
Cir. 1995).
On one side lie sexual assaults; other physical contact,
whether amorous or hostile, for which there is no
consent express or implied; uninvited sexual solicita-
tions; intimidating words or acts; obscene language or
gestures; pornographic pictures. On the other side lies
the occasional vulgar banter, tinged with sexual innu-
endo, of coarse or boorish workers. . . . It is not a bright
line, obviously, this line between a merely unpleasant
working environment on the one hand and a hostile or
deeply repugnant one on the other . . . .
Id. at 430-31.
Moreover, the specific circumstances of the working
environment and the relationship between the harassing
party and the harassed can bear on whether that line is
crossed. See Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d
1408, 1414 (10th Cir. 1997) (noting that the examination of
relevant circumstances includes the setting and context in
which the discriminatory behavior occurred). For instance,
in Quantock v. Shared Marketing Services, Inc., 312 F.3d 899(7th Cir. 2002), we reversed a district court’s grant of sum-
No. 02-3316 23
mary judgment in the defendant’s favor, noting the impor-
tance of the defendant’s “significant position of authority”
and the close working quarters. Id. at 904; see also Northwest
Fin., 129 F.3d at 1414 (commenting that the “intimate office
setting” of plaintiff’s small office, which contained no
partitions or walls, increased her humiliation and therefore
the severity of the discriminatory conduct).
With this background in mind, we evaluate Judge
Sappington’s harassment of Ms. Robinson. First, we note
that there were several overtly sexual comments made by
Judge Sappington to Ms. Robinson including Judge
Sappington’s offer to purchase Ms. Robinson a sexual de-
vice, see R.262, Ex.14 at 28-31; Judge Sappington’s comment
that the attorneys were only speaking to her because she
was wearing revealing clothing, see id. at 31-34; and the
twice-repeated comment that Judge Sappington would like
Ms. Robinson to “sit on his face,” see id. at 70-77. In addition
to these comments, there is strong evidence that Judge
Sappington took an inappropriate interest in Ms. Robinson’s
relationships with men, first inquiring as to the status of her
marriage and later, on two occasions, expressing outrage at
the possibility of her romantic involvement with anyone
else.
Second, we believe that much of Judge Sappington’s con-
duct reasonably could be construed as intimidating and
threatening. Judge Sappington monitored Ms. Robinson’s
actions both within the courthouse and after hours, going so
far as to fly an aircraft over the farm of Ms. Robinson’s
mother when he knew Ms. Robinson was visiting there.
Judge Sappington exhibited anger when he believed other
men showed interest in Ms. Robinson. He also subjected Ms.
Robinson to hearing the details of a gruesome murder and
suggested that she might face a similar fate. Finally, on one
occasion, Judge Sappington grabbed Ms. Robinson’s face
24 No. 02-3316
and told her point-blank that, if she “shacked up” with
anyone else, he would kill her.
Finally, Ms. Robinson was the recipient of other gestures
that, although innocuous in themselves, when put in the
larger context, served as constant reminders of Judge
Sappington’s interest in her and in exercising control over
her. Specifically, Judge Sappington called her beautiful, a
“blonde Demi Moore” or a golden goddess on a daily basis.
He took her to lunch and became angry if Ms. Robinson did
not eat lunch with him. Additionally, for a period of several
weeks, he shook Ms. Robinson’s hand on a daily basis to
experience physical contact with her.
Viewing the evidence in the light most favorable to Ms.
Robinson, we believe that a jury could conclude that Judge
Sappington’s conduct towards Ms. Robinson was objec-
tively hostile. Sexually suggestive and intimidating inci-
dents occurred on almost a weekly basis from the end of
July until the middle of October. This was combined with
daily evidence that Judge Sappington had a more-than-
professional interest in Ms. Robinson and closely observed
everything she did. As well, several actions and remarks of
Judge Sappington were threatening, either overtly or in a
more suggestive manner.
Furthermore, these actions must be placed in the context
of the close working relationship that Judge Sappington,
indeed any judge, has with the staff in his or her chambers.
Ms. Robinson worked exclusively for Judge Sappington
and, in the course of her duties, had little contact with other
courthouse personnel. She regularly was required to be in
Judge Sappington’s office or his courtroom for the purpose
of carrying out her duties. She could not avoid frequent
personal contact with Judge Sappington and still do her job.
No. 02-3316 25
We believe that, arising within the context of a close
working situation, a reasonable person would conclude that
these actions were hostile and intimidating and that these
actions would interfere with the work performance of a
reasonable person. Consequently, we believe that the
district court erred in holding that a reasonable jury could
not conclude that this conduct created an objectively hostile
work environment. We, therefore, turn to the question
whether there is a basis for employer liability.
B. Employer Liability
The Supreme Court in the companion cases of Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998), spoke to the issue of
when an employer may be liable for the sexual harassment
of its employees. In Ellerth, the Court stated:
An employer is subject to vicarious liability to a vic-
timized employee for an actionable hostile environment
created by a supervisor with immediate (or successively
higher) authority over the employee. When no tangible
employment action is taken, a defending employer may
raise an affirmative defense to liability or damages,
subject to proof by a preponderance of the evidence, see
Fed. Rule Civ. Proc. 8(c). 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 unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. . . . No affirma-
tive defense is available, however, when the supervi-
sor’s harassment culminates in a tangible employment
26 No. 02-3316
action, such as discharge, demotion, or undesirable
reassignment.
524 U.S. at 765.
Judges Sappington and Shonkwiler maintain that, even if
Ms. Robinson has established a prima facie case of hostile
environment sexual harassment, they nevertheless are
entitled to summary judgment because the harassment did
not culminate in a tangible employment action and because
reasonable steps were taken to prevent and correct the
harassing behavior. Ms. Robinson counters that the defen-
dants cannot rely upon the affirmative defense set forth in
Ellerth because they did not plead that defense in a timely
manner in the district court. She also maintains that, even if
the defense was presented properly, the harassment by
Judge Sappington resulted in two tangible employment
actions: her transfer back to Judge Sappington after having
worked for Judge Diamond for one week and her alleged
constructive discharge. She further disputes that the de-
fendants took reasonable preventative and corrective
actions. We turn our attention first to the procedural issue
9
raised by Ms. Robinson.
9
Although the parties do not address the issue in detail, we note
that there is at least a preliminary question of who, or what
entity, is the proper defendant with respect to Ms. Robinson’s
Title VII action. It is only the employee’s employer who may be
held liable under Title VII. See, e.g., Williams v. Banning, 72 F.3d
552, 553 (7th Cir. 1995) (holding that a supervisor, in his individ-
ual capacity, does not fall within Title VII’s definition of em-
ployer). We explained in Williams that the term “employer” as
used in Title VII is a statutory expression of traditional principles
of respondeat superior liability. In the context of a sexual
harassment claim, the employee’s employer usually is that of the
(continued...)
No. 02-3316 27
1. Timeliness of the Affirmative Defenses
Ms. Robinson maintains that Judges Sappington and
Shonkwiler may not rely on the affirmative defense set forth
in Ellerth and Faragher because that defense was not raised
in a timely fashion. Ms. Robinson points out that the
defendants had several opportunities to amend their plead-
9
(...continued)
harassing supervisor, and thus it is rational and consistent with
standard agency principles to impute liability to the employer
based on the actions of the supervisory employee.
In the present case, there is no question that Judges Sappington
and Shonkwiler are employees of the State of Illinois. As such,
any harassment inflicted by them on lower-level state employees
under their direction can be imputed to the State of Illinois. Ms.
Robinson, by naming Judges Sappington and Shonkwiler in their
official capacities, has sought to hold liable the State of Illinois for
the Judges’ actions, and, indeed, the Attorney General of Illinois
has appeared on behalf of the Judges throughout the litigation.
See Carver v. Sheriff of LaSalle County, Illinois, 243 F.3d 379, 381 (7th
Cir. 2001) (“Carver I”) (“The §1983 suit was against him in his
official capacity (which is to say, against the office . . .).” (citations
omitted)).
Ms. Robinson also has named Macon County, Illinois, as
a defendant in her Title VII action. It is her contention that Macon
County is her joint employer with the State of Illinois.
Ms. Robinson, however, does not contend that she is not also an
employee of the State, see Appellant’s Br. at 25 (“Melissa contends
Macon County was a joint employer . . . .”); furthermore, neither
Judge Sappington nor Judge Shonkwiler argue before this court
that Ms. Robinson was, exclusively, the employee of Macon
County. Therefore, because all parties acknowledge that the State
of Illinois was, at the very least, Ms. Robinson’s joint employer
with the County, we consider the vicarious liability of the State
of Illinois for the harassment of Judge Sappington. We consider
the involvement of the County infra at II.C.
28 No. 02-3316
ings prior to filing a motion for summary judgment, but
never did so. Quoting our decision in Venters v. City of
Delphi, 123 F.3d 956, 967-68 (7th Cir. 1997), Ms. Robinson
contends that “ ‘if Rule 8(c) is not to become a nullity, we
must not countenance attempts to invoke such defenses at
the eleventh hour, without excuse and without adequate
notice to the Plaintiff.’ ” Appellant’s Br. at 48-49. As noted
above, “[w]e review the district court’s grant of a motion to
amend for abuse of discretion.” E. Natural Gas Corp., 126
F.3d at 999.
We recently addressed this assertion, with respect to a
statute-of-limitations defense, in Jackson v. Rockford Housing
Authority, 213 F.3d 389 (7th Cir. 2000). In that case we stated:
Federal Rule of Civil Procedure 8(c) requires a defen-
dant to plead a statute of limitations defense and any
other affirmative defense in its answer to the complaint.
See Fed. R. Civ. P. 8(c). On the other hand, the district
court has the discretion to allow an answer to be
amended to assert an affirmative defense not raised
initially. See Fed. R. Civ. P. 15(a). Rule 15(a) states that
“leave shall be freely given when justice so requires.”
See id. As a rule, we have allowed defendants to amend
when the plaintiff had adequate notice that a statute of
limitations defense was available, and had an adequate
opportunity to respond to it despite the defendant’s
tardy assertion.
Id. at 392-93.
A review of the record reveals that the Ellerth/Faragher
defenses were a focus of the defendants’ inquiries during
discovery. Counsel for the defendants explored in detail the
circumstances surrounding Ms. Robinson’s transfer and
resignation during her deposition. Counsel also inquired
No. 02-3316 29
about Ms. Robinson’s knowledge of complaint procedures,
as well as the actions taken by the defendants in response to
Ms. Robinson’s complaints. The record, therefore, shows
that Ms. Robinson and her counsel were aware that the
defendants were seeking evidence in support of the
Ellerth/Faragher defense. Furthermore, the defense was
raised in the memoranda supporting the defendants’ motion
for summary judgment, and Ms. Robinson had an opportu-
nity to respond to the defendants’ arguments in favor of
10
that defense in her opposition brief. Finally, Ms. Robinson
has not suggested that she was prejudiced in any way by the
district court’s action in allowing the defendants to assert
the defense. Consequently, because Ms. Robinson had notice
that the defendants might pursue these defenses, had the
opportunity to respond to the assertion of these defenses
and has not shown that she was prejudiced by the amend-
ment, we do not believe that the district court abused its
discretion in allowing the defendants to amend the plead-
11
ings at the time of their summary judgment motions.
10
Although Ms. Robinson does not concede this point, she does
not contend otherwise in her briefs before this court.
11
Ms. Robinson also contends that, because Judge Sappington
did not seek leave to amend his Answer nor join in Judge
Shonkwiler’s Motion for Leave to Amend his Answer, the district
court abused its discretion by invoking the defense on behalf of
Judge Sappington as well as on behalf of Judge Shonkwiler. See
Appellant’s Br. at 49. Ms. Robinson relies upon Macon v. Youngs-
town Sheet & Tube Co., 698 F.2d 858, 861 (7th Cir. 1983), in support
of her argument. In that case, we considered whether the district
court erred in granting a motion to dismiss in favor of both
defendants when only one defendant had filed the motion. We
stated:
(continued...)
30 No. 02-3316
2. Constructive Discharge
As noted above, Judges Sappington and Shonkwiler
maintain that, even if Ms. Robinson has established a prima
facie case of sexual harassment, they cannot be held strictly
liable for the harassment because the harassment did not
culminate in a tangible employment action. See Ellerth, 524
U.S. at 765 (“No affirmative defense is available . . . when
the supervisor’s harassment culminates in a tangible em-
ployment action, such as discharge, demotion, or undesir-
11
(...continued)
Here the claim raised by the Company in its motion to
dismiss would be equally effective in barring the claim
against the Union. The appellant had an adequate opportu-
nity to argue in opposition to the motion to dismiss and to
submit evidentiary material, and the appellant did so argue
and did submit evidentiary material. Because the appellant
did have an opportunity to submit evidentiary material in
opposition to the Company’s motion and because the district
court, in its disposition of the Company’s motion, must have
determined that there were no issues of material fact and that
the plaintiff’s claim was barred for failure to exhaust the
grievance and arbitration procedures of the collective
bargaining agreement, there is no reason why the court could
not, on its own motion, grant to the Union the same relief
afforded the Company.
Id. at 861. Similarly, in the present case, the defenses raised by
Judge Shonkwiler in his official capacity, apply with equal force
with respect to Judge Sappington; indeed, even more so in the
present case because the actions against both judges were “of-
ficial capacity” actions implicating the same public authority—
namely the State of Illinois. Accordingly, the district court’s
decision in the present case was consistent with our decision in
Macon, and the district court did not abuse its discretion in
considering the defense with respect to Judge Shonkwiler.
No. 02-3316 31
able reassignment.”). Ms. Robinson counters that Judge
Sappington’s harassment culminated in her constructive
discharge which constitutes a tangible employment action
for purposes of Title VII. She also maintains that her transfer
back to Judge Sappington, after spending a week working
for Judge Diamond, satisfies this requirement. We turn first
to the question of the constructive discharge.
a. Tangible Employment Action
This court has not yet had to decide whether a construc-
tive discharge is a tangible employment action within the
meaning of Ellerth/Faragher. See Wolf v. Northwest Indiana
Symphony Soc’y, 250 F.3d 1136, 1142 (7th Cir.), cert. denied,
534 U.S. 1028 (2001); Mosher v. Dollar Tree Stores, Inc., 240
F.3d 662, 666-67 (7th Cir.), cert. denied, 534 U.S. 1041 (2001).
The approaches of the circuits that have confronted the issue
have varied somewhat in rationale. A brief look at those
attempts to deal with the issue will assist us in determining
the precise question before us today. The Third Circuit, in
Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), petition for cert.
granted, 72 U.S.L.W. 3105 (U.S. Dec. 1, 2003) (No. 03-95),
determined that a constructive discharge should be consid-
ered a tangible employment action for purposes of the
Ellerth/Faragher analysis. The Eighth Circuit also has fol-
lowed this course, although it has not set forth its rationale
in great detail. See, e.g., Jackson v. Arkansas Dep’t of Educ., 272
F.3d 1020, 1026 (8th Cir. 2001), cert. denied, 536 U.S. 908(2002). Like the Third Circuit, the Second Circuit has faced
the issue squarely, but has determined that a constructive
discharge cannot be considered a tangible employment
action for purposes of Title VII. See Caridad v. Metro-North
Commuter R.R., 191 F.3d 283 (2d Cir. 1999). The First Circuit
has trod a middle ground and held that “[b]ecause the
conduct differs from case to case,” there is “no reason to
32 No. 02-3316
adopt a blanket rule one way or the other.” Reed v. MBNA
Mktg. Sys., Inc., 333 F.3d 27, 33 (1st Cir. 2003).
We believe that the analyses of the Second and First
Circuits are instructive in resolving the case before us. In
Caridad, the Second Circuit considered whether a con-
structive discharge resulting from the sexual harassment by
a supervisor and coworkers could constitute “a tangible
employment action” for purposes of the Ellerth/Faragher
analysis. The Second Circuit concluded that it could not. See
id. at 294. In reaching this conclusion, the Second Circuit
noted that, in Ellerth, the Supreme Court relied heavily upon
the Restatement (Second) of Agency. Specifically, the
Second Circuit pointed to the following excerpt that also
had been noted by the Court in Ellerth: “ ‘A master is not
subject to liability for the torts of his servants acting outside
the scope of their employment, unless: . . . (d) the servant .
. . was aided in accomplishing the tort by the existence of
the agency relation.’ ” Caridad, 191 F.3d at 294 (quoting
Restatement (Second) of Agency § 219(2) (1957)). The
Second Circuit further explained that
[i]n searching for a principled limitation of the “aided
by the agency relation” concept, the Supreme Court
concluded that the requirement of a tangible employ-
ment action by the harassing supervisor would ensure
that employer liability would be imposed without the
possibility of an affirmative defense only where the
employer is implicated in the harm visited upon the
employee by his or her supervisor:
When a supervisor makes a tangible employment
decision, there is assurance the injury could not
have been inflicted absent the agency relation. . . .
As a general proposition, only a supervisor, or other
person acting with the authority of the company,
No. 02-3316 33
can cause this sort of injury. A co-worker can break
a co-worker’s arm as easily as a supervisor, and
anyone who has regular contact with an employee
can inflict psychological injuries by his or her
offensive conduct. But one co-worker . . . cannot
dock another’s pay, nor can one co-worker demote
another. . . . The supervisor has been empowered by
the company as a distinct class of agent to make
economic decisions affecting other employees under
his or her control.
. . . A tangible employment decision requires an
official act of the enterprise, a company act. . . . For
these reasons, a tangible employment action taken
by the supervisor becomes for Title VII purposes the
act of the employer. . . .
Co-workers, as well as supervisors, can cause the con-
structive discharge of an employee. And, unlike de-
motion, discharge, or similar economic sanctions, an
employee’s constructive discharge is not ratified or
approved by the employer.
Caridad, 191 F.3d at 294 (quoting Ellerth, 524 U.S. at 761-62(internal citation omitted)). Thus, the Second Circuit con-
cluded that, because a constructive discharge does not bear
the same indicia of official action as other situations that
have been considered tangible employment actions, it
cannot be considered a tangible employment action for
purposes of Ellerth and Faragher.
The same rationale animated the decision of the First
Circuit in Reed. In that case, an employee had endured
harassment at the hands of her supervisor and had resigned.
The First Circuit determined that, in that case, the construc-
tive discharge did not result in a tangible employment
action. It explained:
34 No. 02-3316
Nothing is gained by arguing in the abstract about
whether a constructive discharge is or is not a dis-
charge; for some purposes or rubrics, it might be so
treated, and for others not. What matters is the Supreme
Court’s rationale for excluding tangible employment
actions from the affirmative defense, namely, that a
supervisor who takes official action against an em-
ployee should be treated as acting for the employer.
There might indeed be cases in which official actions by
the supervisor—e.g., an extremely dangerous job
assignment to retaliate for spurned advances—could
make employment intolerable, but nothing like that is
present here.
Reed, 333 F.3d at 33 (citations omitted).
The common thread in Caridad and Reed is a concern that
equating constructive discharge with other types of tangible
employment actions will impose liability on employers
when the offending employee has not been empowered by
the employer to take the actions at issue. However, there
can be, as noted by the Second Circuit, a striking difference
between actions taken by coworkers and actions taken by
supervisors; unlike a coworker, a “supervisor has been
empowered by the company as a distinct class of agent
to make economic decisions affecting other employees
under his or her control.” Caridad, 191 F.3d at 294 (internal
citations omitted). Additionally, economic sanctions im-
posed by a supervisor typically are “ratified or approved by
the employer.” Id. For these reasons, we believe that it is
appropriate to draw a distinction between a constructive
discharge caused by co-employees and a constructive
discharge caused by supervisors. Specifically, in circum-
stances where “official actions by the supervisor . . . make[s]
employment intolerable,” Reed, 333 F.3d at 33, we believe a
No. 02-3316 35
constructive discharge may be considered a tangible em-
ployment action. As demonstrated below, we believe this to
be such a case.
b. Application
i.
A constructive discharge occurs when an employee
resigns his or her current position because the employee
considers the conditions intolerable and a reasonable em-
ployee also would have found the conditions made remain-
ing in the job unbearable. See Lindale v. Tokheim Corp., 145
F.3d 953, 955 (7th Cir. 1998). We have stated that the
“[w]orking conditions for constructive discharge must
be even more egregious than the high standard for hostile
work environment because ‘in the “ordinary” case, an em-
ployee is expected to remain employed while seeking
redress.’ ” Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d
1044, 1050 (7th Cir. 2000) (quoting Drake v. Minnesota Mining
& Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998)), cert. denied, 531
U.S. 1078 (2001); see Mosher, 240 F.3d at 667 (“Absent
extraordinary conditions, ‘a complaining employee is
expected to remain on the job while seeking redress.’ ”
(quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015
(7th Cir. 1997))); Lindale, 145 F.3d at 956 (“[T]he employee
would have to show why he had to quit immediately, before
he found the other job; why, in other words, his duty to
mitigate damages did not require him to remain.”).
The defendants maintain that, as a matter of law, Ms.
Robinson’s resignation cannot be considered a constructive
discharge because, at the time of Ms. Robinson’s discharge,
the harassment by Judge Sappington had ceased and be-
cause Ms. Robinson had no reasonable basis for believing
36 No. 02-3316
that a transfer to Judge Francis’ chambers would be un-
bearable. We respectfully disagree.
With respect to the defendants’ first contention—that
Judge Sappington’s harassment of Ms. Robinson had ceased
prior to her resignation and therefore cannot support a
constructive discharge—we believe that there are genuine
issues of material fact that preclude summary judgment.
Ms. Robinson testified in her deposition that, after she was
transferred back involuntarily to work for Judge
Sappington, he was cold, noncommunicative and very
angry with her for reporting the alleged harassment to
Judge Greanias without consulting him (Judge Sappington)
first. As well, there is evidence in the record to support the
inference that Judge Sappington had no intention of ceasing
his harassment toward Ms. Robinson; he continued to
monitor her actions and to exhibit romantic interest in her.
Furthermore, there is evidence that Judge Greanias be-
lieved that the only way to protect Ms. Robinson from
future harassment by Judge Sappington was to transfer
12
her. However, the manner in which Judge Greanias chose
12
Again, we note that the evidence of Judge Greanias’ need to
“protect” Ms. Sappington arose within the context of Judge
Greanias’ response to Judge Davis’ criticism of how Judge
Sappington ran his courtroom and how he managed his staff,
specifically Ms. Robinson. See supra I.A.5. According to Ms.
Robinson’s testimony, when Judge Greanias announced the
decision to transfer her, he explained “that he had a judge to
protect and the only way he could protect that judge and protect
[Ms. Robinson] was for [Ms. Robinson] no longer to be in that
building.” R.262, Ex.14 at 111.
The defendants argue that this statement does not acknowledge
a need to transfer Ms. Robinson to protect her from Judge
(continued...)
No. 02-3316 37
to protect Ms. Robinson was a transfer to Judge Francis. Ms.
Robinson was further informed, by Judge Greanias, the
presiding judge for Macon County Circuit Court, that both
Judge Francis and his staff were upset about the proposed
transfer and that Judge Francis would make her life “hell”
for six months. Judge Francis confirmed this intention when
he left Judge Greanias’ chambers in a rage, slammed the
door behind him and glared at Ms. Robinson on his way
out. We believe, under these circumstances, Ms. Robinson
was entitled to take Judge Greanias at his word and believe
that her life in Judge Francis’ chambers would be, at least
for a period of months, unbearable. Indeed, Judge Greanias’
suggestion to Ms. Robinson was that she resign.
Viewed in the light most favorable to Ms. Robinson,
the evidence supports a conclusion that Judge Sappington’s
offending behaviors had not ceased at the time of Ms.
Robinson’s resignation and that the only alternative offered
to Ms. Robinson would subject her to an equally cruel
working situation. Consequently, we believe that the jury
could conclude that Ms. Robinson suffered a constructive
discharge.
ii.
12
(...continued)
Sappington’s advances. Instead, the defendants maintain that the
only message this statement conveys is that Judge Greanias
desired to protect both Judge Sappington and Ms. Robinson from
additional, unfounded criticism by Judge Davis. The defendants’
interpretation of this statement is not an unreasonable one.
Nevertheless, we believe that a reasonable jury could give a
different meaning to the statement—that the transfer was to
protect Judge Sappington from Judge Davis’ criticism and to
protect Ms. Robinson from Judge Sappington’s advances.
38 No. 02-3316
We additionally believe that, under the circumstances
of this case, Ms. Robinson’s constructive discharge may
be considered a tangible employment action for purposes of
the Ellerth/Faragher affirmative defense. This was not simply
a situation in which a supervisor was inflicting harassment
on a subordinate. In this case, Judge Greanias, in his
capacity as presiding judge, took the official action of trans-
ferring Ms. Robinson to Judge Francis and made the
suggestion that she resign. The transfer was only possible
because Judge Greanias “ha[d] been empowered by the
[employer] . . . to make economic decisions affecting other
employees under his or her control.” Caridad, 191 F.3d at 294(internal quotation marks and citations omitted). Further-
more, the suggestion that Ms. Robinson resign was given
added effect because Judge Greanias was speaking in his
official, supervisory capacity when the suggestion was
made. Consequently, because a jury could determine that
Ms. Robinson’s decision to resign resulted, at least in part,
from Judge Greanias’ official actions in transferring Ms.
Robinson to Judge Francis and in suggesting that she resign,
we believe that it would be appropriate to hold the State of
13
Illinois liable for Ms. Robinson’s resulting resignation.
13
Because we reverse the district court’s determination that, as a
matter of law, Ms. Robinson’s alleged constructive discharge did
not constitute a tangible employment action, we must remand
that issue to the district court for further proceedings. We,
therefore, do not reach the issue whether Ms. Robinson’s transfer
back to Judge Sappington, standing alone, also constituted a
tangible employment action.
Furthermore, as noted above, if a supervisor’s harassment
culminates in a tangible employment action, the employer is
strictly liable for the resulting damage to the employee under the
(continued...)
No. 02-3316 39
13
(...continued)
Ellerth/Faragher analysis. It is only if a tangible employment action
has not resulted that an employer may pursue the Ellerth/Faragher
defense. Consequently, it is not necessary for us to determine
whether the district court erred in determining that the defen-
dants had taken reasonable steps to prevent and to correct the
harassing behavior. Nevertheless, we note in passing that there
are genuine issues of material fact regarding whether the
defendants could mount a successful defense. In order to
establish entitlement to the Ellerth/Faragher defense, an employer
has the burden of proving: (1) that the “employer exercised rea-
sonable care to prevent and correct promptly any sexually
harassing behavior,” and (2) that the victimized employee
“unreasonably failed to take advantage of any preventive or cor-
rective opportunities . . . or to avoid harm otherwise.” Faragher,
524 U.S. at 807. A jury certainly could conclude that the meager
action of adopting, but not promulgating, a sexual harassment
policy failed to inform employees of their right to be free from
such behavior as well as of the steps the employees could take to
remedy any offending behavior. The fact that Ms. Robinson
understood that, if she had general workplace complaints, she
should report those to Janice Shonkwiler does not absolve her
employer of the responsibility to take reasonable steps to protect
her from sexual harassment.
There is also evidence from which a jury could conclude that
the response of Janice Shonkwiler, Judge Greanias and Judge
Shonkwiler to Ms. Robinson’s complaint was inadequate. Ms.
Robinson reported the harassment to Janice Shonkwiler on a
Monday; according to Ms. Robinson, no action was taken on that
complaint. It was not until Friday of that week, after there had
been another incident involving Judge Sappington, that Ms.
Robinson was given Judge Greanias’ home number to lodge an-
other complaint.
(continued...)
40 No. 02-3316
C. Macon County as a Necessary Party
Macon County maintains that, even if the district court
erred in granting summary judgment to the defendants on
the merits of Ms. Robinson’s claims, it is nevertheless
entitled to summary judgment because it is not Ms.
Robinson’s employer. Macon County urges that, given its
lack of control over the parties involved in the underlying
harassment, it cannot be considered Ms. Robinson’s em-
ployer for purposes of Title VII. Ms. Robinson counters that,
if the facts are interpreted in the light most favorable to her,
the evidence suggests that Macon County is her joint
employer with the State of Illinois and, consequently, can be
held liable for the harassment she endured. She further
contends that, even if Macon County is not her employer,
principles of estoppel prevent it from so asserting. The
district court initially determined that the issue of a joint
employer relationship was a question of fact, which pre-
cluded summary judgment. After the comprehensive
motions for summary judgment were filed, the court found
it unnecessary to rule on the issue because it held that Ms.
Robinson’s substantive claims lacked merit.
13
(...continued)
Finally, there does not seem to be any evidence in the record
that Ms. Robinson failed to avail herself of the remedies known
to her. She complained initially to Janice Shonkwiler; when
provided with his number and when advised to do so, she
complained to Judge Greanias. The record does not suggest that
Ms. Robinson was informed of any further avenues of recourse
or complaint. Consequently, there is evidence from which a jury
could conclude that the Ellerth/Faragher defense is not available
in the present case.
No. 02-3316 41
We agree with Ms. Robinson that the question of joint
liability is one that is fact-bound and that necessarily is best
addressed by the district court in the first instance. How-
ever, independent of the joint employer issue, we believe
that Macon County is a necessary party to this action. In
Carver v. Sheriff of LaSalle County, Illinois, 243 F.3d 379 (7th
Cir. 2001) (“Carver I”), this court certified to the Supreme
Court of Illinois the question of which state entity was re-
sponsible for paying “official-capacity judgments in Illinois
when the wrongdoer is an independently-elected officer.”
Id. at 381. In that case, a sheriff had settled a Title VII action
seeking damages against him in his official capacity. When
the plaintiffs sought to collect the settlement from the
county, the county argued that it was not responsible for the
settlement amount. “We therefore respectfully ask[ed] the
Supreme Court of Illinois to answer the question whether,
and if so when, Illinois law requires counties to pay judg-
ments entered against a sheriff’s office in an official capac-
ity.” Id. at 386. The Supreme Court of Illinois determined
that “[b]ecause the office of the sheriff is funded by the
county, the county is therefore required to pay a judgment
entered against a sheriff’s office in an official capacity.”
Carver v. Sheriff of La Salle County, 787 N.E.2d 127, 141 (Ill.
2003) (“Carver II”). After receiving the reply from the
Supreme Court of Illinois, this court made the additional
observation that the Supreme Court of Illinois’ answer to the
question “implies an additional point of federal law: that a
county in Illinois is a necessary party in any suit seeking
damages from an independently elected county officer
(sheriff, assessor, clerk of court, and so on) in an official
capacity. See Fed. R. Civ. P. 17, 19.” Carver v. Sheriff of LaSalle
County, Illinois, 324 F.3d 947, 948 (7th Cir. 2003) (“Carver
III”).
42 No. 02-3316
We believe that the implied rule from the Supreme Court
of Illinois’ decision in Carver II applies with equal force in
the present case. The responsibility for maintaining and
funding the Macon County Circuit Court lies with Macon
County. Under Illinois law, it is responsible for the payment
of expenses and judgments emanating from the workings of
that court. The fact that some of the parties involved are
state officials, as opposed to employees of Macon County,
does not alter that fiscal responsibility. See Pucinski v. County
of Cook, 737 N.E.2d 225, 228 (Ill. 2000) (holding that, al-
though “clerks of the circuit courts are nonjudicial officers
of the judicial branch of state government and not employ-
ees of the counties, responsibility for maintaining the clerks’
offices belongs to the counties” and therefore are subject to
the requirements of the Counties Code (internal citations
omitted)). Therefore, because Macon County has a financial
interest in the outcome of this action, it is a necessary
14
party.
14
Macon County insists that state principles of separation of
powers prevent the counties from interfering with the operations
of the judiciary and therefore prevent Macon County from being
considered a joint employer with the State of Illinois with respect
to judicial employees. We believe that there are three fundamen-
tal flaws with this argument. First, a State’s principles of internal
organization cannot frustrate federal law. See Carver v. Sheriff of
LaSalle County, Illinois, 243 F.3d 379, 385 (7th Cir. 2001). Second,
“[i]dentification of an ‘employer’ under Title VII is a question of
federal law.” Id. at 382. Finally, “the source of funds” needed to
satisfy a Title VII judgment “need not coincide with the identity
of the employer.” Id. Consequently, regardless whether Macon
County is Ms. Robinson’s sole employer or joint employer, it still
may be responsible for payment of an adverse judgment.
No. 02-3316 43
D. Claims Against Judge Shonkwiler
Judge Shonkwiler maintains that, even if the claims with
respect to Judge Sappington and Macon County are re-
versed, he nevertheless is entitled to summary judgment
because he was not personally involved in the harassment
and because the claims against him simply mirror those
against Judge Sappington. We agree.
Ms. Robinson has sued Judge Sappington only in his of-
ficial capacity. As noted previously, and as Ms. Robinson’s
counsel conceded at oral argument, the purpose of naming
both Judge Sappington and Judge Shonkwiler in their
official capacities was to impose liability on their employer,
the State of Illinois.
The facts that form the basis for the claims against both
Judges are the same: the harassment by Judge Sappington
that went unremedied by Janice Shonkwiler, Judge Greanias
and Judge Shonkwiler. Ms. Robinson does not point to any
facts that support independent claims of discrimination
against Judge Shonkwiler; nor does she maintain that
naming Judge Shonkwiler, in addition to Judge Sappington,
imputes liability to any other governmental entity or
provides her with additional sources that might satisfy a
judgment. Consequently, because the claims against Judge
Shonkwiler seek to impose liability against the same
defendant—the State of Illinois—as do the claims against
Judge Sappington, because the claims are based on the same
facts and because they do not provide any additional
resources for settlement or satisfaction of Ms. Robinson’s
claims, we believe that the claims against Judge Shonkwiler
and Judge Sappington are redundant. Cf. Jungels v. Pierce,
825 F.2d 1127, 1129 (7th Cir. 1987) (holding that a claim
brought against a mayor in his official capacity and against
the city were brought against “one defendant . . . not two”
and observing that “nothing was added by suing the mayor
44 No. 02-3316
in his official capacity”). We therefore affirm the judgment
against Judge Shonkwiler in his official capacity on this
basis. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262
(5th Cir. 1999) (holding that “a party may not maintain a
suit against both an employer and its agent under Title
VII”).
Conclusion
For the foregoing reasons, the judgment of the district
court with respect to the claims against Judge Sappington,
in his official capacity, and against Macon County is re-
versed, and those claims are remanded for further proceed-
ings consistent with this opinion. The judgment of the
district court with respect to the claims against Judge
Shonkwiler is affirmed. Ms. Robinson may recover her costs
in this court.
AFFIRMED IN PART; REVERSED and REMANDED IN PART.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-9-03