Cooper-Schut, Tanya v. Visteon Automotive

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2205
TANYA COOPER-SCHUT,
Plaintiff-Appellant,
v.
VISTEON AUTOMOTIVE SYSTEMS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 01 C 899— Sarah Evans Barker, Judge.
____________
ARGUED JANUARY 23, 2004—DECIDED MARCH 17, 2004
____________
Before BAUER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. Tanya Cooper-Schut, an African-
American woman, began working for Visteon on May 22,
2000. She was employed as a supervisor in the FS-10
Compressor Department. During her brief employment with
the company she says she was the victim of numerous
hostile encounters with various co-workers. Cooper-Schut
resigned on September 11, 2000. Some of her complaints
are mild in nature, some are serious. The following is a list
of those complaints:
2 No. 03-2205
Cooper-Schut says that when she began working at the
plant her supervisors created a hostile environment. She
claims that her supervisors discussed rumors about the
assistant plant superintendent having an affair with an-
other African-American female employee. The rumors were
discussed in Cooper-Schut’s presence during meetings. The
discussions were derogatory toward the woman involved in
the affair.1
In another incident, in May of 2000, a co-worker told
Cooper-Schut that Cooper-Schut’s group leader, John
Warren had ridiculed her by trying to rhyme her name with
the word “slut.” Cooper-Schut was not present when
Warren said this. Later, Warren (an African-American
man) informed Cooper-Schut that “black women will take
you to the cleaners”—a comment made in reference to his
recent divorce.
Cooper-Schut also complains of an incident where another
group leader, Greg Bonwell, reprimanded her in front of
other employees for a work-related incident. She believes
that Bonwell went out of his way to criticize her for an issue
unrelated to the topic of the meeting, and that he was
unprofessional in “screaming” at her. Cooper-Schut does not
believe he treats male employees in the same way.
Cooper-Schut also had trouble with her subordinates. She
complains that Douglas Fields, a white man who worked
below her, told her that “I don’t like women, and women
don’t like me.” Shortly thereafter, Fields left a business card
on her desk with the name of a shop where he purchased
guns. Cooper-Schut felt this was done to intimidate her. She
felt that he was openly hostile to her, and insubordinate
and she did not feel physically safe in his presence. On
September 8, Cooper-Schut and Fields had a confrontation
1
Warren stated, “If she wasn’t fucking Jefferson she wouldn’t be
working here anymore.” Appellant’s Br. at 4.
No. 03-2205 3
over a job assignment she gave to him. Cooper-Schut
attended a meeting with Fields to discuss the incident,
Fields said during the meeting she was, “shaking [her] head
and acting like Sha-nay-nay.” Cooper-Schut believes this
was racially derogatory and was intended to portray her as
a “stereotypical black female who is . . . ignorant.” (Appel-
lant’s Br. at 11.)
Cooper-Schut also had difficulty with another subordinate
employee, James Augustine. She encountered hostility from
him when she confronted him regarding his absence from
work and refused to accept his excuse of medical problems.
At this time Augustine became visibly irate and pushed a
heavy industrial basket toward Cooper-Schut, exclaiming
that he was “sick of this shit.” This behavior she says
intimidated her.
Another employee, Will Taylor, told Cooper-Schut that a
competition existed among employees at the plant to see
who would be first to have sex with her.
In addition to these smaller hostilities, Cooper-Schut re-
ports some serious and disturbing incidents at Visteon. She
says that on August 15, 2000 she was injured by a falling
tray and was taken to the hospital to receive medical
attention for an injury to her ankle. Initially, Cooper-Schut
believed the tray fell as a result of an accident that occurred
while a maintenance employee was clearing a jam on a
conveyor belt; later she believed that because of the size of
the tray and the way the trays were stacked it could not
have accidently fallen. She believes that it was intentionally
thrown at her from above by another employee, Ted Couch.
Cooper-Schut was told by other workers that Couch later
remarked: “that nigger should not have been in the way.”
On her first day back following the injury, a second tray
was thrown at Cooper-Schut but did not hit her.
On September 6, 2000 Cooper-Schut found a derogatory
caricature taped to the refrigerator in her work area. The
caricature was of her and was accompanied by the following
4 No. 03-2205
phrases: “Please show me how to run my dept. the right
way,” “Nigger Bitch,” and “I need help!” Cooper-Schut
immediately reported this to Donald Vincent, the Human
Resources Manager at the plant. The next day Vincent
directed John Donner to conduct an investigation of the
incident. Donner had a new employee, Jennifer Stewart,
interview the various employees who worked directly with
Cooper-Schut. Cooper-Schut told Stewart that she feared for
her safety; Stewart told her she could not guarantee
Cooper-Schut’s safety at the plant. Cooper-Schut then
resigned.
After the district court granted summary judgment for
Visteon, Cooper-Schut filed this appeal. Cooper-Schut takes
issue with 1) the district court’s determination that she did
not establish a claim for a Title VII violation, and 2) the
district court’s treatment of some evidence. We discuss
these below.
Title VII Claims
We review the district court’s grant of defendant’s motion
for summary judgment de novo. Phelan v. City of Chicago,
347 F.3d 679, 681 (7th Cir. 2003). In doing so, we consider
all evidence in the light most favorable to the non-moving
party. Id. Summary judgment is proper when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P.
56(c).
Title VII makes it unlawful for an employer “to discrim-
inate against any individual with respect to his compen-
sation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. 2000e-2. There are several ways
to frame a Title VII claim; we consider Cooper-Schut’s
claims of a hostile work environment and constructive dis-
charge.
No. 03-2205 5
Hostile Work Environment
An employer violates Title VII if it is responsible for a
“hostile work environment.” Mason v. Southern Ill. Univ. at
Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000). A hostile
environment is one that is “permeated with discriminatory
intimidation, ridicule and insult.” Shanoff v. Ill. Dept. of
Human Servs., 258 F.3d 696, 704 (7th Cir. 2001). In order
to state a claim under Title VII for a hostile work environ-
ment, a plaintiff must be able to demonstrate that: “1) he
was subject to unwelcome harassment; 2) the harassment
was based on his race [or sex]; 3) the harassment was
severe [or] pervasive so as to alter the conditions of the
employee’s environment and create a hostile or abusive
working environment; and 4) there is basis for employer
liability.” Mason, 233 F.3d at 1043 (7th Cir. 2000).
While we find some of Cooper-Schut’s complaints dis-
turbing, we do not find that she stated an actionable hostile
work environment claim under Title VII. Although the
incidents Cooper-Schut experienced at Visteon may have
been “severe or pervasive” enough to rise to an actionable
level, there is no basis for employer liability; Visteon
responded reasonably on the few occasions when Cooper-
Schut alerted it to workplace hostilities that violated Title
VII.
Employer liability is evaluated on two levels. First, an
employer may be liable if a supervisor is responsible for the
harassment. That argument is not raised here. (Appellant’s
Br. at 35.) Second, an employer may be liable if the harass-
ment is done by a co-worker and the employer is shown to
have been negligent in failing to prevent the harassment.
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 432 (7th Cir.
1995). An employer is deemed negligent if it fails to take
reasonable steps to discover and remedy harassment. Id. In
evaluating whether an employer’s response was reasonable,
we must consider the “gravity of the harassment.” Id.
6 No. 03-2205
The first step in this inquiry is whether the employer was
on notice of the harassment.2 When an employee reports
harassment to her employer, the employee must give the
employer “enough information to make a reasonable
employer think there was some probability that she was
being sexually [or racially] harassed.” Zimmerman v. Cook
County Sheriff’s Dept., 96 F.3d 1017, 1019 (7th Cir. 1996);
see also Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1014
(7th Cir. 1997) (noting that an employer cannot be held
liable if the employee does not report sexual harassment
and the employer would not have reasonably discovered
through other channels). As we will discuss below, one of
the main failings of Cooper-Schut’s reporting (in the inci-
dences she did report3) is that the majority of conflicts with
co-workers were work-related and did not involve racial or
sexual insults, and Cooper-Schut did not report that she
believed them to be racially or sexually motivated. While
Visteon may have been on notice that she was experiencing
friction with her co-workers, it did not have reason to
believe the majority of these problems fell under the more
serious umbrella of race or sex discrimination.
Although Cooper-Schut began experiencing problems with
co-workers as early as May 2000, she did not report these
2
During the relevant time-frame for this case, Visteon had a
“Zero Tolerance” policy in force regarding racial and sexual
harassment. It posted a notice at the plant to this effect, and told
employees who to contact in the event harassment did occur.
3
Cooper-Schut did not report the following incidents: comments
made by her supervisors regarding the affair; Bonwell’s unprofes-
sional reprimand of Cooper-Schut in front of other employees;
Field’s statement: “I don’t like women and women don’t like me.”;
Field’s leaving the business card of a gun seller on her desk;
Warren’s comment that “black women will take you to the
cleaners”; the competition among employees to have sex with
Cooper-Schut; and Couch’s statement after the tray incident that
“that nigger should not have been in the way.”
No. 03-2205 7
problems immediately. Her reports to supervisors occurred
about a month preceding her resignation. They are as
follows: On August 31, 2000 she reported to the Human
Resources Manager, Donald Vincent, that she had been told
that John Warren had rhymed her last name with “slut.” In
response Vincent immediately had Henry Morrissey (the
Area Manufacturing Manager) interview Warren about the
remark. He also interviewed two other employees who were
present at that meeting; they denied that he made the
remark. Also, Cynthia Holm (the Equal Employment
Opportunity Commission) interviewed Warren and three
other supervisors. All those interviewed denied that Warren
had called Cooper-Schut a slut; because of this, no disci-
pline was implemented. Visteon’s response of immediately
conducting multiple interviews with the employees involved
was a reasonable response, and was not negligent. See
Perry, 126 F.3d at 1014-15 (holding an employer’s response
to a complaint of sexual harassment was reasonable when
the employer investigated the incident, but the alleged
harasser and supervising employee denied that the incident
occurred).
Regarding her confrontations with subordinate employee
Douglas Fields, Cooper-Schut sought involvement from
Visteon on two occasions. On August 11, 2000 she reported
an incident involving a hostile confrontation with Fields to
her supervisor, Warren. That confrontation was work-
related and did not involve racial or sex-based comments.
On September 8, Fields again exhibited hostility toward
Cooper-Schut; later that day a meeting was held with
Warren and union representatives to address the situation.
This hostility was again related to work issues, and did not
involve race or sex-based comments. During the meeting to
discuss the incident Fields did make a comment that
Cooper-Schut was acting like “Sha-nay-nay.” Cooper-Schut
felt this was a derogatory term for African-American
women. Cooper-Schut told Warren that she wanted to
8 No. 03-2205
discipline Fields. Warren told her to prepare a write-up of
the days events to assist in determining discipline—she quit
three days later without preparing a write-up. Later, Fields
was one of the employees with whom Visteon individually
reviewed its zero tolerance policies. We think that Visteon’s
responses to these reports were reasonable. Aside from the
“Sha-nay-nay” comment, these incidents were neither sex-
or race-based. With regard to the “Sha-nay-nay” comment,
we first note that “Sha-nay-nay” is an ambiguous term.4
However, Cooper-Schut felt that Fields meant it to be
racially and sexually derogatory, which, in all fairness, may
be true. Cooper-Schut’s supervisors tried to follow up with
discipline but were hampered by her failure to complete the
necessary write-up of the incident. See Perry, 126 F.3d at
1015 (finding the “reasonableness” of an employer’s re-
sponse to a complaint of harassment may be affected by the
cooperation—or lack thereof—by the complaining em-
ployee.). Ultimately, Visteon recognized that Fields was
especially hostile toward Cooper-Schut and spoke with him
individually about Visteon’s adherence to its zero tolerance
policy.
Cooper-Schut also reported to Warren an incident on
August 22, 2000 involving James Augustine. This incident
arose when Cooper-Schut refused to accept Augustine’s
reason for missing work. Augustine became angry and
yelled that he was, “sick of this shit.” This incident did not
involve racial or sex-based comments; Cooper-Schut did not
report that it did.
Cooper-Schut was hit by the tray on August 15, 2000
and had a second tray thrown at her several days later.
While Cooper-Schut reported to Donald Vincent that she
4
It is possibly a reference to a female character (Shenehneh
Jenkins) played by comedian Martin Lawrence on the TV sitcom
“Martin” (1992-1997). See The Internet Movie Database at http://
www.imdb.com/title/tt0103488/.
No. 03-2205 9
believed in both incidents the trays were intentionally
thrown at her, she did not tell Vincent that she believed the
motivation for throwing the trays was sexual or racial, and
Vincent had no reason to suspect they were. Visteon’s safety
investigation of the incident and counseling of the employee
responsible for the trays was a reasonable response.
Finally, on September 6, 2000 Cooper-Schut showed
Vincent the offensive caricature she found posted on the
refrigerator. This conduct was clearly related to both her
race and sex. In response, Cooper-Schut was interviewed
that day by Vincent, Morrissey, and Eric Lavalette, a Labor
Relations associate, regarding the caricature. The next day
Human Resources began a complete investigation. Part of
that investigation, interviewing the hourly employees in
Cooper-Schut’s department, was delegated to a new em-
ployee, Jennifer Stewart. In addition to the interviews,
Visteon retained a forensics expert to analyze the handwrit-
ing on the caricature to determine who made it. Visteon
could not determine who was responsible for the picture.
Instead of disciplining employees, it reviewed its zero
tolerance policy concerning racial and sexual harassment
with all employees at the plant. Stewart also met individu-
ally with particular employees (Fields, Augustine and
Charles Masters—those with whom Cooper-Schut had had
specific problems) to review the policy. Cooper-Schut re-
signed prior to the completion of this investigation. While
we lament that such behavior occurred, we find that when
Visteon became aware of the problems, it took reasonable
actions to remedy the violations.
Constructive Discharge
Cooper-Schut also claims that Visteon violated Title VII
by constructively discharging her. When a plaintiff seeks to
show this through indirect evidence she must employ a
10 No. 03-2205
burden-shifting framework. The plaintiff must prove the
following prima facie case: “(1) that she was a member of a
protected class; (2) that she was performing her job satisfac-
torily; (3) that she experienced an adverse employment
action; and (4) that similarly situated individuals were
treated more favorably.” Traylor v. Brown, 295 F.3d 783,
788 (7th Cir. 2002). When the “adverse employment action”
that the plaintiff complains of is a constructive discharge it
is simply a claim that she was forced to quit because the
work conditions became unbearable.
It is difficult for a plaintiff to show a constructive dis-
charge. We have noted that “[a]bsent extraordinary condi-
tions, a complaining employee is expected to remain on the
job while seeking redress [for Title VII violations].” Grube
v. Lau Industries, Inc., 257 F.3d 723, 728 (7th Cir. 2001)
(quoting Perry, 126 F.3d at 1015); see also Tidwell v. Meyer’s
Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996) (“An em-
ployee who quits without giving his employer a reasonable
chance to work out a problem has not been constructively
discharged.”). In this case, Cooper-Schut’s constructive
discharge claim fails for two reasons: First, because what-
ever racial and sexual harassment she experienced was, for
the most part, mild. See Hertzberg v. SRAM Corp., 261 F.3d
651, 658 (7th Cir. 2001) (noting that a plaintiff needs to
show facts that go beyond an “ordinary” Title VII violation;
drawing a distinction between conditions that are “unrea-
sonable”—in which case the employee must continue
working—and those that are “intolerable”). Second, Cooper-
Schut quit before Visteon had a chance to complete its
investigation of the caricature. Case law illustrates that an
employee has not acted reasonably if she assumes the
employer will fail to protect her without allowing the
employer a chance to try. See Tidwell, 93 F.3d at 494. For
these reasons, Cooper-Schut’s constructive discharge claim
fails.
No. 03-2205 11
Evidentiary Issues
Cooper-Schut also challenges the district court’s use of
several pieces of evidence. We review evidentiary rulings for
abuse of discretion. Hildebrandt v. Ill. Dept. of Nat. Res.,
347 F.3d 1014, 1040 (7th Cir. 2003). Additionally, we will
only reverse if failure to do so would be “inconsistent with
substantial justice.” Id. That is to say, we will reverse the
district court’s ruling only if it was erroneous, and the error
affected the outcome of the case.
Cooper-Schut takes issue with the district court’s treat-
ment of three affidavits. According to Federal Rule of Civil
Procedure 56(e), “[s]upporting and opposing affidavits shall
be made on personal knowledge [and] shall set forth such
facts as would be admissible in evidence.” A court must not
consider parts of an affidavit that fail to meet the standards
of Rule 56(e) when considering summary judgment.
Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir.
1998). Further, a plaintiff’s “conclusory statements, unsup-
ported by the evidence of record, are insufficient to avoid
summary judgment.” Albiero v. City of Kankakee, 246 F.3d
927, 933 (7th Cir. 2001).
The first affidavit in question is that of William Goings,
a maintenance employee. In his affidavit he stated that he
informed Visteon management that the letters “KKK” were
graffitied around the plant and that plant employees had
made racially disparaging remarks; he also stated that he
told Cooper-Schut about the graffiti. The district court
admitted this testimony only for its effect on Cooper-Schut
and not for its relevance to the issue of Visteon’s negligence
in preventing a hostile work environment. However,
Cooper-Schut never claimed to have seen the graffiti or to
have complained about it to Visteon, so even if it were
accepted unconditionally, this evidence does not go to show
that Visteon was negligent in responding to Cooper-Schut’s
12 No. 03-2205
problems.5 To the extent that it would have shown Visteon
to have been on notice of discriminatory behavior at the
plant, Visteon agrees that it knew about the behavior, but
states that it was isolated and they responded promptly to
the complaints; Cooper-Schut does not offer specific evi-
dence to refute this. For this reason, the district court’s
treatment of this evidence did not affect the outcome of
Visteon’s summary judgment motion.
The second piece of evidence in question is Cooper-Schut’s
affidavit testimony. Cooper-Schut takes issue with the
district court’s treatment of two parts of the affidavit. First,
a portion of Cooper-Schut’s affidavit stated that she had
been told by another employee that a competition existed
among employees at the plant to see who would have sex
with Cooper-Schut first. The district court admitted that
testimony only for the effect that it had on Cooper-Schut
and not for the truth of the matter asserted. Cooper-Schut
believes that it is evidence that Visteon should have been
on constructive notice of the harassment she suffered. We
5
In Berry v. Delta Airlines, Inc., 260 F.3d 803, 812-13 (7th Cir.
2001) we faced a similar situation and explained,
Read in [Plaintiff’s] favor, the evidence demonstrates that
Delta neither knew or should have known of the problem
before [Plaintiff] complained, and that it took prompt and
appropriate remedial action when she did. While it is true
that [a supervising employee] was aware before June 7 that
several . . . employees had used foul language in the ware-
house, and that two female employees had complained to [the
supervising employee] about two occasions in which [these]
employees had directed inappropriate sexual language or
graffiti towards them, none of these incidents involved
[Plaintiff] . . . and the only admissible evidence of record
shows that Delta addressed both of the latter complaints
promptly.
Id.
No. 03-2205 13
find the district court correctly treated this evidence as
hearsay—that is, an out-of-court statement offered for the
truth of the matter asserted—and only let it in for the effect
that it had on its listener.
Another portion of her affidavit stated that she had re-
quested job location transfers. The district court admitted
evidence of one request for a transfer, but not for others,
stating that the requests were not supported by specific
facts in the record. Even if these transfer requests had been
admitted, Cooper-Schut does not allege that she alerted
Visteon as to why she was requesting the transfers. Hence,
they would not have aided Cooper-Schut in preventing
summary judgment for Visteon.
Last, Cooper-Schut believes that the district court, while
admitting the affidavit testimony of Lester Van Cleave, did
not give it proper weight. In his affidavit Van Cleave (an
African-American employee) states that the word “nigger”
was written on a cabinet in his work area and Visteon did
not take steps to determine who had done it despite the
presence of a security camera in the area. Cooper-Schut
believes this testimony goes to show that Visteon was
aware of racial discrimination at the plant, and the district
court judge did not afford the evidence proper weight. First,
we note that the district court did admit this evidence. The
credibility that the district court assigns evidence is subject
to review for abuse of discretion. It does not appear that the
district court abused its discretion here. Second, as we
noted above, Cooper-Schut does not assert that she was
aware of this piece of graffiti so this does not show that
Visteon was negligent in addressing her problems. For
these reasons, we find there was no district court error.
In light of all the above discussion, we AFFIRM.
14 No. 03-2205
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-17-04