McPherson, Leslie D. v. City of Waukegan

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2738
LESLIE D. MCPHERSON,
Plaintiff-Appellant,
v.
CITY OF WAUKEGAN,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 9264—Amy J. St. Eve, Judge.
____________
ARGUED FEBRUARY 19, 2004—DECIDED AUGUST 11, 2004
____________
Before CUDAHY, POSNER and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. While she was employed by the
City of Waukegan (the City), Leslie McPherson alleges that
she was sexually harassed, battered and subjected to
intentional infliction of emotional distress by her supervi-
sor, Randall Copenharve, and that the City forced her to
resign. McPherson appeals the district court’s grant of sum-
mary judgment on her Title VII claim of sexual harassment
against the City, her claims that the City was liable for
Copenharve’s torts under a respondeat superior theory and
her demand that the City indemnify any judgment against
Copenharve. After considering all of the evidence in the
light most favorable to McPherson, we affirm.
2 No. 03-2738
I.
McPherson began working for the City as a full-time
Clerical Technician I in the Building Department on March 6,
1998. She was promoted to Clerical Technician II sometime
around September 1999. McPherson’s duties consisted gen-
erally of answering telephones, filing and issuing building
permits to applicants. McPherson was one of two clerical
technicians and reported directly to Edna Nieves, the supervi-
sor of the Building Department, who in turn reported to
Copenharve, the Assistant Building Commissioner. Michelle
Weland was the office manager. McPherson took directions
from both Nieves and Copenharve, but it was Nieves who
conducted McPherson’s performance reviews, and those re-
views formed the basis for McPherson’s pay raises throughout
her tenure with the City.1 McPherson had never been dis-
ciplined during her employment. Copenharve had worked
for the City since 1969, and there had never been a com-
plaint of sexual misconduct against him.
According to McPherson, Copenharve began making
allegedly offensive comments to her starting about March
of 1999, when he asked her what color bra she was wearing.
McPherson claims that Copenharve asked this question
openly in the office area a “handful” of times during her
three years with the City. One of McPherson’s co-workers,
Michelle Brewington, testified at her deposition that
Copenharve had made similar comments to her and that on
at least one occasion the office manager, Weland, had
overheard Copenharve ask the female staff, “Okay ladies,
what color is your bra today, does it match the underwear?”
On that occasion, Weland told Copenharve, “That’s enough.
It’s time for you to get out and do your job.” (Appellant’s Br.
1
It is undisputed that Copenharve was McPherson’s “supervisor”
for purposes of her Title VII claim.
No. 03-2738 3
at 17; SA at 34-35.)2 Brewington also testified that Nieves
had been present when Copenharve asked the group of
female employees this question and had laughed it off.
(Appellant’s Br. at 17; SA at 34-35.) While McPherson
claims that the comments made by Copenharve offended
her, she never mentioned his conduct to any of her supervi-
sors and never told anyone that his remarks made her
uncomfortable.
At another time during March 1999, McPherson called in
sick and spoke with Copenharve. Copenharve responded by
suggestively asking if he could “make a house call.” He
asked the same question two or three more times during the
course of McPherson’s employment with the City, but like
the other times that Copenharve’s conduct allegedly of-
fended McPherson, she never complained of or reported his
comments to anyone. Additionally, on several occasions
Copenharve and others from the Department would wander
over to McPherson’s work station and browse through the
Victoria’s Secret catalogs in and on top of her desk.
McPherson recalled an instance when Copenharve was
looking through one of the catalogs, pointed to a particular
outfit and suggested that she might look nice in it. This too
allegedly offended her.
In late February or early March of 2001, Copenharve’s
conduct escalated to include physical contact. According to
McPherson, at a time when they were unobserved by others,
Copenharve asked her what color bra she was wearing and
then pulled back her tank top with his fingers to see for
himself. Although McPherson pulled away from Copenharve,
she never mentioned his conduct to any of her supervisors
and never told anyone, not even Copenharve, that his be-
havior made her uncomfortable. And things soon got worse.
2
References to the Short Appendix attached to Appellant’s Brief
will be designated by “SA at __.”
4 No. 03-2738
On March 21, 2001, Copenharve called McPherson into
his office. She entered and closed the door behind her. No
one could see into Copenharve’s office once the door was
shut. McPherson claims that, as she and Copenharve were
discussing a work document, he slid his hand under her
shirt and felt her breasts. She pulled away and asked him
to stop, telling him that his hands were cold. Copenharve
removed his hand from under her shirt and McPherson left
his office. She finished the workday and returned to work
the next morning. McPherson did not complain about or
report Copenharve’s behavior at the time.
Five days later, on March 26, 2001, Copenharve again
called McPherson into his office and asked her to shut the
door, which she did. McPherson asked Copenharve if he
wanted to talk to her about a particular work issue, and he
replied that he was just having a bad day and needed to be
“cheered up.” (SA at 27.) Realizing that Copenharve had noth-
ing work-related to discuss with her, McPherson turned to
leave his office. Copenharve got up from his desk, ap-
proached her and slid his hand under her shirt, touching
her breasts. McPherson asked him to stop. Copenharve
pushed her toward the wall behind his office door. He then
put his hand down her pants and inserted his finger into
her vagina. McPherson again asked Copenharve to stop and
said, “Somebody is going to walk in.” Id. Seconds later,
Weland opened the door and walked into the office, saying
that she had something for Copenharve. But as the door
was opening, Copenharve pushed McPherson behind it, so
Weland would not see her. Weland dropped something on
the desk and left. Shortly afterward, McPherson also left
Copenharve’s office.
Despite what had just transpired, McPherson worked the
rest of the day, during which she mentioned the incident to
no one. On the following day, McPherson called her friend
(and sister-in-law), Mary Vanderventer, who also happened to
be the mayor’s daughter, and told her something had
No. 03-2738 5
happened. She went to Vanderventer’s house for lunch and
told her (and a City attorney who was present) about the
two incidents that had taken place in Copenharve’s office.
She then returned to work but soon afterward received a
call from Vanderventer telling her that she could go home
for the day. Between the time McPherson left
Vanderventer’s home and the time she arrived back at
work, Vanderventer had contacted her father (the mayor)
and told him what McPherson had told her. Later that
same afternoon, the mayor met with Copenharve, another
City attorney and two other City employees to discuss
McPherson’s allegations. Copenharve was presented with
two alternatives at that meeting: he could either accept a
suspension during the course of the City’s investigation, or
he could immediately resign. Even though Copenharve
insisted that what happened between him and McPherson
was consensual, he chose to resign on the spot rather than
risk what he thought would be certain termination follow-
ing an investigation.3
The City claims that its actions with respect to Copenharve
were in compliance with its policy against sexual harass-
ment, which both prohibited harassing behavior and iden-
tified the available avenues for reporting it. The City also
maintained a “Workplace Violence” policy that encouraged
employees to report incidents of violence.4 McPherson was
aware of the City’s policies and procedures since she had
previously complained about difficulties with another co-
worker through the appropriate channels. Additionally,
3
Copenharve was also indicted by a Lake County Grand Jury. He
was arrested and charged with criminal sexual assault, criminal sex-
ual abuse and battery. He pleaded guilty to attempted criminal sex-
ual assault, resulting in his being placed on felony probation and
ordered to register as a sex offender under Illinois law.
4
McPherson does not contest the district court’s finding that the
City’s antiharassment policies and procedures were adequate.
6 No. 03-2738
McPherson, as a member of the Service Employees
International Union, was covered under a Collective
Bargaining Agreement. That Agreement contained a “Non-
Discrimination” clause and detailed grievance procedures
members were to follow if a suspected breach occurred.
McPherson neither filed a Union grievance about
Copenharve’s conduct nor reported Copenharve’s behavior
to the City until her March 27, 2001 meeting with
Vanderventer.
Even though McPherson did not request it, the City granted
her thirty days of paid leave beginning on March 28, 2001,
which was not counted against any of her accrued time. On
April 26, 2001, McPherson was informed by the City that
she could take an additional twenty-two days of paid leave,
comprising her remaining sick, personal and vacation time.
She was advised that if she felt she needed more time after
that, she would have to apply for a discretionary leave of
absence. With her paid leave nearly used up, on May 10,
2001, McPherson wrote to the City and demanded an
additional ninety days of paid leave with full benefits. On
June 6, 2001, McPherson’s attorney followed up with an
inquiry about the status of McPherson’s employment with
the City. On June 28, 2001, the City responded to
McPherson’s attorney’s inquiry, stating that Copenharve
had resigned; that the “hostile work environment” perceived
by McPherson could no longer possibly exist; that
McPherson was still considered on “active but unpaid”
status; that her position was being filled on a temporary
basis due to the Department’s workload but remained
available to her upon her return to work; and that
McPherson was currently considered absent without leave,
which put her employment at risk. (SA at 8.) The City
ended its letter by stating that it hoped McPherson, whom
it considered a valued employee, would return to work soon.
Later that same day, McPherson’s attorney wrote back to
the City, effectively tendering McPherson’s resignation. The
No. 03-2738 7
letter stated that McPherson felt unable to “return to a
work place that permitted sexual intimidation and created
a hostile work environment.” Id. At some point after
McPherson’s last day in the office, the City arranged for her
belongings to be packed and informed her that she should
come pick them up. The City also asked her to return
certain items of City property.
This lawsuit followed McPherson’s resignation. McPherson
alleged state law claims of battery and intentional infliction
of emotional distress against Copenharve. Against the City,
she brought a claim of sexual harassment under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
She additionally claimed that the City was liable for
Copenharve’s torts under a theory of respondeat superior
and that the City should indemnify any judgment against
Copenharve on her state law claims against him.
The City moved for summary judgment on the three claims
against it. The district court granted summary judgment to
the City on McPherson’s Title VII claim, finding that a
hostile work environment first existed on March 21 (which
the City does not dispute) but that the City was not strictly
liable for Copenharve’s conduct because the so-called
Faragher/Ellerth affirmative defense precluded its liability.
The City was also granted summary judgment on
McPherson’s state law respondeat superior claim based on
the court’s determination that it was preempted by the
Illinois Workers’ Compensation Act. Last, the City was
granted summary judgment on McPherson’s indemnification
claim because the district court found that Copenharve’s
actions had not been within the scope of his employment.
McPherson appeals the district court’s disposition of each of
these claims.5
5
Following the district court’s grant of summary judgment to the
City on the three counts against it, the district court declined to
(continued...)
8 No. 03-2738
II.
We review the district court’s grant of summary judgment
de novo. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir.
2001). To succeed on a motion for summary judgment, the
moving party must show that there is no genuine issue of
material fact and that he or she is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 273, 106 S. Ct.
2548, 2552 (1986). In making this determination the court
must “view the record and all inferences drawn from it in
the light most favorable to the party opposing the motion.”
McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 370 (7th
Cir. 1992) (quoting Lohorn v. Michal, 913 F.2d 327, 331 (7th
Cir. 1990)). We address each of McPherson’s claims in turn.
A.
Title VII forbids an employer
to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual
with respect to [her] compensation, terms, conditions,
or privileges of employment, because of such individ-
ual’s . . . sex.
42 U.S.C. § 2000e-2(a)(1). McPherson claims that the City
violated Title VII by subjecting her to a hostile work en-
vironment based on sexual harassment that ultimately led
to her constructive discharge. In order for McPherson to
prevail on a claim of sexual harassment based on hostile
work environment, she must establish that: (1) she was
(...continued)
exercise supplemental jurisdiction over McPherson’s two re-
maining state law claims, which were against Copenharve but not
the City.
No. 03-2738 9
subjected to unwelcome sexual harassment; (2) the harass-
ment was based on her sex; (3) the sexual harassment
unreasonably interfered with her work performance by
creating an intimidating, hostile or offensive work environ-
ment that affected seriously the psychological well-being of
the plaintiff; and (4) there is a basis for employer liability.
Robinson v. Sappington, 351 F.3d 317, 328-29 (7th Cir.
2003), cert. denied, 124 S. Ct. 2909 (June 28, 2004) (internal
quotation and citations omitted).
The City concedes that a sexually harassing hostile work
environment existed as of March 21, 2001 when Copenharve
first physically touched McPherson. (Appellee’s Br. at 15.)
However, McPherson claims that, when construed in her
favor, the facts establish that the City became aware of
Copenharve’s offensive conduct much earlier than that, yet
it failed to take any action to correct his behavior.
McPherson further claims that the City’s inaction, coupled
with its actions after Copenharve resigned, led to her con-
structive discharge and triggered strict liability. We first
address whether a hostile work environment existed prior
to the March 21, 2001 incident.
1.
To prove that a hostile work environment existed,
McPherson must put forth sufficient evidence that she was
subjected to conduct “so severe or pervasive as to alter the
conditions of employment and create an abusive working
environment.” Hilt-Dyson v. City of Chicago, 282 F.3d 456,
462-63 (7th Cir. 2002) (quoting Faragher v. City of Boca Raton,
524 U.S. 775, 786, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)
(internal citation omitted)). To qualify as hostile, the work
environment must be “both objectively and subjectively
offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be
so.” Id. (quoting Faragher, 524 U.S. at 787); Hostetler v.
10 No. 03-2738
Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000). In
determining whether McPherson’s work environment was
objectively hostile, we must consider all of the circumstances,
including the frequency and severity of the conduct; whether
it was threatening and/or humiliating or merely an offen-
sive utterance; and whether the harassment unreasonably
interfered with her work. Wyninger v. New Venture Gear,
Inc., 361 F.3d 965, 975-76 (7th Cir. 2004).
We have previously observed that determining when
sexual harassment is actionable “is not always easy.”
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995). In Baskerville, we described the challenges facing
courts in deciding where to draw the line:
On one side lie sexual assaults; other physical contact,
whether amorous or hostile, for which there is no con-
sent express or implied; uninvited sexual solicitations;
intimidating words or acts; obscene language or ges-
tures; pornographic pictures. On the other side lies the
occasional vulgar banter, tinged with sexual innuendo,
of coarse or boorish workers. . . . It is not a bright line,
obviously, this line between a merely unpleasant work-
ing environment on the one hand and a hostile or deeply
repugnant one on the other . . . .
Id. at 430-31 (internal citations omitted).
Since our decision in Baskerville, we have on many oc-
casions distinguished between harassing and merely objec-
tionable conduct. See, e.g., Hilt-Dyson, 282 F.3d at 463-64(holding that plaintiff’s allegations that supervisor rubbed
her back, squeezed her shoulder and stared at her chest
during a uniform inspection while telling her to raise her
arms and open her blazer were isolated incidents that, even
when taken together, did not create a sufficient inference of a
hostile work environment); Patt v. Family Health Sys., Inc.,
280 F.3d 749, 754 (7th Cir. 2002) (holding that plaintiff’s
complaints of eight gender-related comments during course
No. 03-2738 11
of her employment, including that “the only valuable thing
to a woman is that she has breasts and a vagina,” insuffi-
cient to demonstrate hostile work environment); Adusumilli
v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir. 1998)
(finding plaintiff’s complaints of teasing, ambiguous com-
ments about bananas, rubber bands and low-neck tops,
staring and attempts to make eye contact and four isolated
incidents where a co-worker briefly touched her arm,
fingers or buttocks did not constitute sexual harassment).
With these precedents in mind, we conclude that the inci-
dents that occurred prior to Copenharve’s physical assault
of McPherson on March 21, 2001, although boorish, do not
constitute the severe or pervasive conduct necessary to
create an objectively hostile work environment in violation
of Title VII. While Copenharve’s inquiries about what color
bra McPherson was wearing, his suggestive tone of voice
when asking her whether he could “make a house call” when
she called in sick and the one occasion when he pulled back
her tank top with his fingers were lamentably inappropri-
ate, we agree with the district court that, due to the limited
nature and frequency of the objectionable conduct, a hostile
work environment did not exist until the March 21, 2001
assault.6 That said, we next consider the question of the
City’s liability for Copenharve’s actions of March 21 and 26,
2001.
2.
When a supervisor is the harasser, the employer is strictly
liable for his or her conduct, subject to any affirmative
defenses that may preclude its liability. Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).
6
We also agree with the district court’s finding that McPherson
offered no evidence that she subjectively found Copenharve’s
questions and remarks offensive.
12 No. 03-2738
One such affirmative defense was set out in the companion
cases of Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 141
L. Ed. 2d 633, 118 S. Ct. 2257 (1998) and Faragher, 524
U.S. 775, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998). In
Ellerth, the Court stated:
An 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. When no tangible employ-
ment action is taken, a defending employer may raise an
affirmative defense to liability or damages, subject to
proof by a preponderance of the evidence . . . . The de-
fense comprises two necessary elements: (a) that the
employer exercised reasonable care to prevent and cor-
rect 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 affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible em-
ployment action, such as discharge, demotion or unde-
sirable reassignment.
524 U.S. at 765. Thus, in order for the Faragher/Ellerth
defense to be available to an employer, the employer must
not have taken a tangible employment action against the
employee.
McPherson claims that the district court erroneously al-
lowed the City to assert the Faragher/Ellerth affirmative
defense because she was constructively discharged, and her
constructive discharge constituted a tangible employment
action. The City argues that there was no constructive
discharge and hence no tangible employment action, and
that it was entitled to invoke (and, in fact, met the burdens
imposed by) the Faragher/Ellerth affirmative defense. If the
plaintiff is unable to show that a tangible employment
No. 03-2738 13
action took place, the employer is entitled to raise the
Faragher/Ellerth defense.
a.
In order to show that a hostile work environment resulted
in her constructive discharge, McPherson must not only
demonstrate that a hostile work environment existed but
also that the abusive working environment was so intol-
erable that her resignation was an appropriate response.
Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2346,
159 L. Ed. 2d 204, 211 (2004). Constructive discharge refers
to a situation “in which an employee is not fired but quits, but
in circumstances in which the working conditions have
made remaining with this employer simply intolerable.”
Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998).
The “working conditions for constructive discharge must be
even more egregious than the high standard for hostile
work environment because . . . an employee is expected to
remain employed while seeking redress.” Robinson, 351
F.3d at 336; Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d
1044, 1050 (7th Cir. 1998) (quoting Drake v. Minn. Mining
& Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998)). Because we
have earlier found that a hostile work environment did not
exist prior to March 21, 2001, we need only determine
whether the work environment after that date was so
egregious that McPherson was compelled to resign.
The undisputed facts establish that a hostile work envi-
ronment did not result in McPherson’s constructive discharge.
Within hours of learning of McPherson’s allegations against
Copenharve on March 27, 2001, the City convened a meet-
ing during which it demanded that he either submit his
resignation or face suspension during the pendency of its
investigation. Copenharve chose to resign. McPherson, on
the other hand, chose to resign months after Copenharve’s
resignation, when the hostile working conditions created by
14 No. 03-2738
Copenharve were long gone. McPherson has offered no facts to
show that her resignation was “an appropriate response” to an
intolerable work environment.
McPherson also argues that she was constructively dis-
charged by the City’s packing up her belongings, requesting
return of items it owned and filling her position with a
temporary employee. According to McPherson, those actions
made her feel that she would not have been welcome if she
returned to her position. She argues that the district court
ignored those acts of the City when deciding that there had
been no constructive discharge. But in its letters to the
plaintiff, the City encouraged McPherson to return to work
and offered her the prospect of additional discretionary
leave if she felt she needed more time before returning to
work. It informed her that since Copenharve had resigned,
she need not fear that her return to work for the City would
mean a return to a sexually harassing work environment.
“[A]n employee can be constructively discharged only if the
underlying working conditions were themselves unlawful or
discriminatory in some fashion.” Gawley v. Ind. Univ., 276
F.3d 301, 315 (7th Cir. 2001) (internal citation omitted).
The City appears to have made every effort to communicate
to McPherson that her position was open and available to
her as soon as she was ready to return. Because it acted as
any reasonable employer would when one of its employees
is on extended leave, these acts of the City fail to constitute
a constructive discharge. McPherson thus cannot have
suffered a tangible employment action, and the City was
entitled to raise the Faragher/Ellerth affirmative defense.
b.
The first element of this affirmative defense requires the
City to show that it exercised reasonable care to prevent
and promptly correct any sexually harassing behavior.
McPherson argues that the City failed to take any action to
stop Copenharve’s behavior even though it knew that he
No. 03-2738 15
was harassing women in the office and thus failed to meet
its obligation. To bolster her argument, she refers to the
testimony of her co-worker, Michelle Brewington, which
corroborates McPherson’s allegations about the inappro-
priate questions Copenharve asked the female employees as
a group and her claims that Nieves and Weland, the office
supervisor and office manager, had overheard these re-
marks. But as the district court correctly pointed out, the
facts show only that Nieves and Weland overheard
Copenharve ask this question to the female staff on at least
one occasion. There is no evidence that either Nieves or
Weland was aware that Copenharve ever singled out indi-
vidual employees for his off-color questioning. Even assum-
ing for the sake of argument that knowledge of
Copenharve’s comments to the group should be imputed to
the City, the comments on their own did not amount to an
actionable hostile work environment, and there is no reason
they would have put the City on notice that Copenharve’s
behavior would escalate two years later into a physical as-
sault of McPherson. As for the events of March 21 and 26,
2001, the City could not have known about those incidents
until McPherson reported them because they occurred inside
Copenharve’s office, out of sight of co-workers. An employer
cannot be considered to have knowledge of sexual harass-
ment “unless the employee makes a concerted effort to
inform the employer that a problem exists.” Silk v. City of
Chicago, 194 F.3d 788, 807 (7th Cir. 1999) (citations
omitted).7 As soon as it learned that Copenharve had sex-
7
We have found that “notice may be presumed where the work
environment is permeated with pervasive harassment.” Wilson v.
Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999). But here, the
only behavior the City was arguably on notice of was Copenharve’s
occasional jocular questions to the group of female employees
about the color of their bras—inappropriate, to be sure, but not
rising to the level of sexual harassment. “[W]hen, as in this case,
(continued...)
16 No. 03-2738
ually harassed McPherson, the City acted immediately
to investigate, correct and prevent future recurrences of
Copenharve’s behavior. The City met its burden with re-
spect to the first element of the affirmative defense.
As for the second element, the district court found that
the City had adequate preventive and remedial policies in
place to protect its employees from harassment and vio-
lence, and McPherson concedes that she failed to avail her-
self of those policies and that she did not report Copenharve’s
conduct until March 27, 2001. (Appellant’s Br. at 4.) Nor did
she file a grievance with her Union. McPherson’s complaint
that “[t]he district court put the entire burden on [her] to
take some action against her supervisor” (Appellant’s Br. at
18) amounts to nothing more than dissatisfaction with the
requirements of the law. The Supreme Court noted in
Faragher that Title VII’s “ ‘primary objective’ . . . is not to
provide redress but to avoid harm.” 524 U.S. at 806 (1998)
(citation omitted). The “burden” of which McPherson com-
plains is nothing more than an
obvious policy imported from the general theory of dam-
ages, that a victim has a duty “to use such means as are
reasonable under the circumstances to avoid or mini-
mize the damages” that result from violations of the
statute. . . . If the victim could have avoided harm, no
liability should be found against the employer who had
taken reasonable care . . . .
(...continued)
the only possible source of notice to the employer . . . is the
employee who is being harassed, she cannot withstand summary
judgment without presenting evidence that she gave the employer
enough information to make a reasonable employer think there
was some probability that she was being sexually harassed.”
Zimmerman v. Cook County Sheriffs Dept., 96 F.3d 1017, 1019
(7th Cir. 1996).
No. 03-2738 17
Id. at 806-07 (internal citations omitted). Since McPherson
does not dispute that the City acted reasonably in main-
taining and in disseminating to its employees policies and
procedures for addressing and preventing sexual harass-
ment, the burden was on McPherson to avail herself of these
policies and procedures that she well knew were available
to her. Of course, it was the City’s burden to show she had
unreasonably failed to do so—a burden which the City has
met.
Because we find that McPherson was not constructively
discharged, there was no tangible employment action bar-
ring the City from raising the Faragher/Ellerth affirmative
defense. The City has shown that the Faragher/ Ellerth
defense precludes its liability for Copenharve’s actions, and
summary judgment in favor of the City was therefore
proper on McPherson’s Title VII claim.
B.
In addition to Title VII liability, McPherson had alleged
liability under a respondeat superior theory for certain
state law torts committed by Copenharve. Here, the district
court correctly noted that respondeat superior liability is
not available to overcome the preemptive effect of the
Illinois Workers Compensation Act (IWCA), 820 ILCS
305/5(a). The IWCA is an employee’s exclusive remedy for
“accidental” injuries arising out of and in the course of em-
ployment. “The meaning of ‘accidental injury’ as used in the
Illinois Workmen’s Compensation Act has been defined as
an injury which is traceable to a definite time, place and
cause, and occurs in the course of employment unexpectedly
and without affirmative act or design of the employee.”
Hales & Hunter Co. v. Industrial Com., 31 Ill. 2d 139, 141
(Ill. 1964). The Illinois Supreme Court has explained that
intentional torts committed by co-employees are nonethe-
less considered “accidental” for the purposes of the IWCA:
18 No. 03-2738
Unless the employer has commanded or expressly au-
thorized the assault, it cannot be said to be intentional
from his standpoint any more than from the standpoint
of any third person. Realistically, it to him is just one
more industrial mishap in the factory, of the sort he has
the right to consider exclusively covered by the compen-
sation system.
Meerbrey v. Marshall Field & Co., Inc., 564 N.E.2d 1222,
1227 (Ill. 1990) (quoting 2A A. Larson, Law of Workmen’s
Compensation § 68.21 (1988)). One way an employee can
avoid preemption is by showing that his or her injuries were
not “accidental.”8 See Juarez v. Ameritech Mobile
Communications, Inc., 957 F.2d 317, 323 n.4 (7th Cir. 1992).
To show that her injuries were not accidental, McPherson
must do more than merely show that Copenharve acted
within the scope of his employment. Id. In order to avoid
preemption, McPherson must establish that the City itself
“has committed, commanded, or expressly authorized” the
torts against her. Id. The district court found that the City
did not do so, since it lacked knowledge of Copenharve’s
sexual harassment until March 27, 2001, at which point it
responded immediately and effectively.
McPherson concedes that the City cannot be liable under
a respondeat superior theory for Copenharve’s tortious acts.
Instead, she argues that the IWCA does not preempt her
claims because management knew that Copenharve was
making comments about the color of the female office
workers’ bras and did nothing, thus expressly authorizing
his actions and creating an environment in which those ac-
8
There are three other ways in which an employee can avoid
preemption, though none of them is relevant here. The employee
can prove that the injury did not arise from his or her employ-
ment; that the injury was not received during the course of em-
ployment; or that the injury was non-compensable under the
IWCA. See Juarez v. Ameritech Mobile Communications, Inc., 957
F.2d 317, 323 n.4 (7th Cir. 1992).
No. 03-2738 19
tions were permitted to escalate. See Thomas v. Habitat Co.,
213 F. Supp. 2d 887, 892 (N.D. Ill. 2002) (holding that
“management’s knowledge coupled with lack of follow-up
action is equivalent to express authorization of injurious
conduct”). McPherson faces the same problem here that she
did with her Title VII claim. As we have already found, the
City was not aware of Copenharve’s sexually harassing
behavior until March 27, 2001, at which point it acted
promptly and effectively to rectify the situation. Even if we
were to impute to the City Nieves’ and Weland’s knowledge
that Copenharve asked the female employees as a group
inappropriate questions about the color of their bras,
McPherson has presented no facts even hinting that the
City would or should have believed that Copenharve had
any particular interest in her or that these comments would
suddenly escalate two years later into a full-blown physical
assault. There is also no evidence that the City “commanded
or expressly authorized the assault.” Meerbrey, 564 N.E.2d
at 1227 (quoting 2A A. Larson, Law of Workmen’s Compensa-
tion § 68.21 (1988)). Because the City took action immedi-
ately upon receiving McPherson’s complaint and because
the City could not have known any earlier that Copenharve
posed a risk to McPherson, summary judgment in favor of
the City on this claim was proper.
C.
Finally, McPherson argues that there is a genuine issue
of material fact as to the City’s knowledge of Copenharve’s
behavior that precludes entry of summary judgment on her
indemnity claim. The district court found that the City was
immune under the Illinois Tort Immunity Act (ITIA), which
provides that “a local public entity is empowered and
directed to pay any tort judgment or settlement for compen-
satory damages . . . for which it or an employee while acting
within the scope of his employment is liable.” 745 ILCS
20 No. 03-2738
10/9-102 (2002). Since the district court found that
Copenharve’s conduct was not within the scope of his
employment and that the City could not have reasonably
anticipated Copenarve’s allegedly tortious acts, it granted
summary judgment in the City’s favor.
An employer is generally liable for an intentional tort
committed by an employee only when the tort was in
furtherance of his employment, “that is, only if the em-
ployee’s motive, or at least a motive, in committing the tort
was to serve his employer.” Doe v. City of Chicago, 360 F.3d
667, 670 (7th Cir.), reh’g denied, 2004 U.S. App. LEXIS
5662 (2004) (emphasis in original). Citing Dorsey v. Givens,
209 F. Supp. 2d 850 (N.D. Ill. 2001), out of context,
McPherson argues that because Copenharve’s sexual mis-
conduct occurred during working hours at a City building
and Copenharve had lured her into his office on an ostensi-
bly work-related matter, the City could reasonably expect
that Copenharve would become sexually abusive toward
McPherson in the course of his employment. McPherson
misses the point. Unlike McPherson’s respondeat superior
claim, the focus here is on whether Copenharve’s mis-
conduct was within the scope of his employment, not on
whether the City knew that supervisors might sexually
harass subordinates.9 Of course, employers are aware of the
possibility that supervisors might sexually harass employ-
ees while at work; this is, unfortunately, a fact of working
life. But unlike Dorsey, which involved a male correctional
officer who was alleged to have improperly touched a female
inmate, Copenharve’s job did not involve the opportunity for
abuse inherent in “the exercise of officially sanctioned
coercive power by a male over a female.” Dorsey, 209 F. Supp.
9To the extent the City’s knowledge of Copenharve’s behavior is
relevant to McPherson’s indemnity claim, we have already deter-
mined that the City did not know or have any reason to know that
McPherson was in any danger from Copenharve.
No. 03-2738 21
2d at 852. McPherson has not presented any reason why the
scope of Copenharve’s employment would encompass the
sexual misconduct she complains of.10 Id.; see also Webb v.
Jewel Cos., Inc., 137 Ill. App. 3d 1004, 92 Ill. Dec. 598, 601-
02, 485 N.E.2d 409, 412-13 (Ill. Ct. App. 1985) (holding that
sexual assault, whether rape or fondling, had no relation to
the business of the employer). Thus, according to the ITIA, the
City is not required to indemnify any judgment McPherson
may obtain against Copenharve.11
Because there are no material facts on which a jury could
10
We also note that in Dorsey, the district court felt unable to
“predict that the Illinois courts would conclude that the sexual
misconduct alleged here is within the scope of employment, jus-
tifying indemnification.” Dorsey, 209 F. Supp. at 853. Thus, not even
Dorsey—the only case cited by McPherson in support of this
claim—found that sexual misconduct was within the scope of the
harasser’s employment and thus indemnifiable.
11
McPherson’s characterization of the City as having knowledge
of Copenharve’s misconduct, yet doing nothing to protect its fe-
male employees, is also contradicted by the facts. First, the City
was unaware of Copenharve’s “inappropriate sexual behavior di-
rected toward” McPherson because she had not informed anyone
that Copenharve’s behavior went beyond the occasional inappro-
priate question about bra color to the group of female employees.
(Appellant’s Br. at 21.) Second, Nieves’ and Weland’s knowledge
that Copenharve had occasionally asked this question of the group is,
as we have concluded, not sufficient to put the City on notice that
Copenharve was singling out McPherson or that his behavior
might one day escalate into a sexual assault. Finally, the City did
do something to protect its female employees: it promulgated
policies and procedures designed to effectively deal with sexual
harassment, it made its employees (including McPherson) aware
of them, and it responded swiftly and effectively to McPherson’s
eventual complaint about Copenharve. Even if knowledge and lack
of action were enough for McPherson to prevail, she has not
shown that either of them existed here.
22 No. 03-2738
base a finding that the City should indemnify any judgment
McPherson may obtain against Copenharve, summary
judgment in favor of the City on this claim was proper.
III.
We do not condone the objectionable acts and offensive
sexual misconduct that McPherson’s supervisor un-
disputably committed. But the facts of this case demon-
strate that the City acted reasonably in responding to
McPherson’s complaint, and, as a matter of law, the City
was not liable for those acts. For the foregoing reasons, the
judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-04