Bixby, Charles v. Jones, Eddie

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2288
C YNTHIA B ERRY,
Plaintiff-Appellant,
v.
C HICAGO T RANSIT A UTHORITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 3640—Suzanne B. Conlon, Judge.
A RGUED A PRIL 6, 2010—D ECIDED A UGUST 23, 2010
Before K ANNE, R OVNER, and T INDER, Circuit Judges.
R OVNER, Circuit Judge. Cynthia Berry filed suit against
her employer, the Chicago Transit Authority (“CTA”),
claiming that it discriminated against her because of her
sex and subjected her to a hostile work environment,
in violation of Title VII of the Civil Rights Act of 1964.
See 42 U.S.C. §§ 2000e et seq. The district court granted
summary judgment in favor of the CTA, and Berry
appeals. We affirm in part and reverse in part.
2 No. 07-2288
The CTA hired Berry as a carpenter in 2002. She worked
alongside other carpenters, electricians, mechanics, and
welders in the bus overhaul section of Area 315 at the
CTA’s South Shops facility. In January 2006—when the
incident that precipitated this lawsuit occurred—Berry
was one of only two women among approximately 50
employees in Area 315, and the only woman among
approximately 15 carpenters there.
Berry and other workers in Area 315—including Philip
Carmichael, an electrician, and Earl Marshall, a me-
chanic—often played cards during breaks. During her
morning break on January 17 or 18, 2006, Berry went to
the break area and sat on a bench at a picnic-style table
with Marshall and two other employees, John Hill and
Raymond Hardy. Carmichael followed Berry into the
break area. Marshall wanted to play cards with Car-
michael as his partner, against Hill and Hardy; he
ordered Berry to get up from the table. Berry, offended
by Marshall’s commanding tone, remained seated. Ac-
cording to Berry, Carmichael sat down and straddled
the bench so that he was facing Hardy, with his back
close to Berry.
Marshall suggested that the four men move to the other
end of the table; he, Hill, and Hardy did so. Berry says
Carmichael remained where he was seated and began
rubbing his back against her shoulder. She jumped up,
told him not to rub himself against her, and sat down
next to Hardy at the other end of the table. At this point,
Berry says, Marshall began telling her to get up from
the table again. Not wanting Marshall to think he could
No. 07-2288 3
order her around, she remained seated, but began
rubbing her temples to compose herself. According to
Berry, she next felt Carmichael grabbing her breasts and
lifting her up from the bench. Holding her in the air, he
rubbed her buttocks against the front of his body—from
his chest to his penis—three times before bringing her
to the ground with force. Berry landed off-balance, with
only one leg on the ground, and says Carmichael then
pushed her into a fence. Upset and wanting to avoid
any men, she lay down in a bus for the rest of her shift.
The next day, Berry told Michael Gorman—a manager
at the South Shops facility, and one of her supervi-
sors—how she had been sexually harassed the previous
day. According to Berry, Gorman responded by telling
her that she was “a pain in the butt” and that she could
lose her job if she filed charges against Carmichael. None-
theless, Gorman called Thelma Crigler, a CTA equal
employment opportunity investigator, and asked her
to investigate the incident. Crigler told Gorman she
would not be able to conduct an investigation until the
following week, and she asked him to collect statements
about what happened from Berry, Carmichael, Marshall,
Hill, and Hardy. After Berry wrote her statement and
gave it to Gorman, he told her that the other employees
had said that she sat in Carmichael’s lap. Berry denied
that, and says Gorman responded by telling her he
didn’t care what had happened, and that “he was going
to do whatever it takes to protect CTA.”
Berry also called the police to the South Shops facility
on the day after the incident, telling them that Carmichael
4 No. 07-2288
had attacked her. The police spoke with Berry, Carmichael,
and Gorman, and determined that Berry had been the
aggressor. Later that day, before Berry took her lunch
break, Gorman told her to stay away from the break area
pending Crigler’s investigation. Gorman did not tell
Carmichael or the other employees who saw the incident
to stay away from the break area, although he did tell
Carmichael to stay away from Berry. According to
Berry, when she asked if Gorman had told the men in-
volved not to go to the break area, Gorman replied,
“Women aren’t the only ones who can file sexual harass-
ment.”
Crigler’s investigation ultimately reached a conclusion
similar to that of the police: After reviewing the state-
ments given to Gorman and interviewing Berry,
Carmichael, and other employees, Crigler found no
substantial evidence that Berry had been sexually
harassed. Instead, Crigler determined that Berry had
been the aggressor, sitting between Carmichael’s legs;
Carmichael picked her up—by the waist, he said—to
move her out of his way. Berry contends that Gorman
sabotaged Crigler’s investigation to prevent her harassers
from being punished and to make it appear as if she
made false accusations of sexual harassment.
Because of lower-back pain and headaches that she
says were caused by Carmichael’s actions, Berry went on
short-term disability leave soon after the incident in the
break area. She sought injured-on-duty status, which
would have entitled her to workers’ compensation, but
was instead placed on sick leave, which meant that she
No. 07-2288 5
received pay only through June 2006. (Berry never
returned to work from sick leave, and her lawyer
informed us at argument that she is no longer employed
by the CTA.) She maintains that Gorman refused to put
her on injured-on-duty status and ordered instead that
she be placed on sick leave.
Berry brought this lawsuit against the CTA in July 2006,
claiming that Carmichael’s actions and Gorman’s
response created a hostile work environment and con-
stituted sex discrimination. (Her suit also included state-
law claims of battery and intentional infliction of emo-
tional distress against Carmichael and Marshall; those
claims have been settled and are not part of this appeal.)
At the close of discovery, the CTA moved for sum-
mary judgment. Although the district court found
Carmichael’s actions sufficient to establish a hostile
work environment, it concluded that the CTA could not
be found liable because it took prompt and reasonable
steps to discover and rectify the sexual harassment. The
court also reasoned that Berry could not prove sex dis-
crimination because she could not establish that she had
suffered an adverse employment action. And the court
rejected—on the basis of insufficient evidence—a retalia-
tion claim that Berry raised in her response to the
CTA’s motion for summary judgment. The court there-
fore granted the CTA’s motion for summary judgment,
a decision we review de novo. See Everroad v. Scott
Truck Sys., Inc., 604 F.3d 471, 475 (7th Cir. 2010).
Summary judgment, of course, should be granted when
the admissible evidence, construed in favor of the non-
6 No. 07-2288
movant, reveals no genuine issue as to any material
facts and establishes that the movant is entitled to judg-
ment as a matter of law. See F ED. R. C IV. P. 56(c)(2);
Swearnigen-El v. Cook County Sheriff’s Dep’t, 602 F.3d 852,
859 (7th Cir. 2010). If there is sufficient evidence for a
jury to return a verdict for the non-moving party, a genu-
ine issue of material fact exists. See Swearnigen-El, 602
F.3d at 859. It is worth pointing out here that we long
ago buried—or at least tried to bury—the misconception
that uncorroborated testimony from the non-movant
cannot prevent summary judgment because it is “self-
serving.” See Payne v. Pauley, 337 F.3d 767, 770-73 (7th
Cir. 2003). If based on personal knowledge or firsthand
experience, such testimony can be evidence of disputed
material facts. See id.; see also, e.g., Whitlock v. Brown, 596
F.3d 406, 411 (7th Cir. 2010); Darchak v. City of Chicago
Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009). It is not
for courts at summary judgment to weigh evidence or
determine the credibility of such testimony; we leave
those tasks to factfinders. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Kodish v. Oakbrook Terrace
Fire Protection Dist., 604 F.3d 490, 505 (7th Cir. 2010).
With those principles in mind, we turn to Berry’s
appeal, beginning with her claim of a hostile work en-
vironment. For her claim to survive summary judgment,
Berry must be able to show that she was subjected to
unwelcome conduct because of her sex; that the conduct
was so severe or pervasive that it created a hostile or
abusive working environment; and that there was a
basis for the CTA’s liability. See Turner v. Saloon, Ltd., 595
F.3d 679, 684 (7th Cir. 2010); Scruggs v. Garst Seed Co., 587
No. 07-2288 7
F.3d 832, 840 (7th Cir. 2009); Lucero v. Nettle Creek Sch.
Corp., 566 F.3d 720, 731 (7th Cir. 2009). The unwelcome
conduct can be sexist—demonstrating animus toward
women—or sexual. Scruggs, 587 F.3d at 840. It must be
both subjectively and objectively severe or pervasive.
Turner, 595 F.3d at 685.
Berry argues that she experienced a hostile work envi-
ronment in two ways: first when Carmichael grabbed
her breasts, lifted her, and rubbed her body against his,
and again when Gorman made comments to Berry dis-
missive of her charges. We consider Gorman’s actions
first, because he was Berry’s supervisor and had manage-
rial authority; if his conduct created a hostile environ-
ment, the CTA can be held strictly liable. See Roby v.
CWI, Inc., 579 F.3d 779, 784 (7th Cir. 2009); McPherson v.
City of Waukegan, 379 F.3d 430, 439 (7th Cir. 2004). The
district court concluded that Berry had not produced
evidence to permit a jury to conclude that Gorman’s
conduct created a hostile work environment.
At the outset, we note that the district court
improperly discounted as uncorroborated Berry’s asser-
tion that Gorman made dismissive comments such
as, “Women aren’t the only ones who can file sexual
harassment.” As we have reiterated, Berry did not need
to provide corroboration of her firsthand observation
of Gorman’s statement; her version of Gorman’s words
and actions is based on her own personal encounters
with him and therefore can be used to create issues of
material fact. See Payne, 337 F.3d at 773. Nevertheless,
Berry’s claim as it relates to Gorman must fail substan-
8 No. 07-2288
tively because she has not shown that his comments
were severe or pervasive enough to create a hostile en-
vironment. We evaluate such comments using a variety
of factors, including their frequency and severity,
whether they were physically threatening or humiliating,
and whether they unreasonably interfered with an em-
ployee’s performance. See Turner, 595 F.3d at 685. Berry
has not offered evidence that Gorman made similar
comments frequently or on any other occasions. See
Lucero, 566 F.3d at 732. She does not suggest that she
felt physically threatened or humiliated by his com-
ments. Nor does she say that the comments affected her
performance; to the contrary, she continued coming
to work, and says she later stopped working because
of her injuries, not because of what Gorman said.
With respect to Carmichael’s actions, however, Berry
has provided enough evidence to allow her hostile work
environment claim to go forward. As the district court
noted, a single act can create a hostile environment if
it is severe enough, Lapka v. Chertoff, 517 F.3d 974, 983
(7th Cir. 2008); Hostetler v. Quality Dining, Inc., 218 F.3d
798, 808 (7th Cir. 2000), and instances of uninvited
physical contact with intimate parts of the body are
among the most severe types of sexual harassment, see
Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir.
2006); Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001);
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995). Carmichael’s actions, as alleged by Berry, qualify
undeniably as unwelcome sexual conduct that estab-
lished a hostile environment.
No. 07-2288 9
The district court erred when it concluded that Berry
had not offered evidence of the CTA’s liability for
Carmichael’s actions. Because Berry claims that
Carmichael, a co-worker, created a hostile work environ-
ment, she must show that the CTA was negligent in
discovering or rectifying the harassment; if the CTA
took prompt action that was reasonably likely to
prevent a reoccurrence, it cannot be liable. See Porter v.
Erie Foods Int’l, Inc., 576 F.3d 629, 636 (7th Cir. 2009).
The district court reasoned that Gorman, as Berry’s super-
visor, was not negligent because he promptly contacted
Crigler to investigate the incident, and he advised Berry
and Carmichael to stay away from each other to re-
duce tension. But the court once again mistakenly dis-
regarded Berry’s contrary testimony merely because it
was uncorroborated. She contends that, far from facil-
itating a genuine investigation into Carmichael’s conduct,
Gorman sabotaged the investigation. Gorman’s eager-
ness to disregard the truth, she asserts, is reflected
in his assurance that he didn’t care what really hap-
pened because Berry was “a pain in the butt,” his predic-
tion that she would lose her job if she filed charges, and
his promise that he was going to do “whatever it takes
to protect CTA.” Berry’s testimony, and the inferences
we must draw in her favor at this stage, see Scruggs,
587 F.3d at 838, would allow a reasonable factfinder to
conclude that Gorman, acting as a manager, maliciously
thwarted any legitimate investigation, and that the CTA
was therefore negligent or worse in responding to her
report of harassment. Granting summary judgment on
Berry’s claim of a hostile work environment—as it re-
10 No. 07-2288
lated to Carmichael’s actions and the CTA’s liability—
was thus improper.
Summary judgment was proper on Berry’s discrimina-
tion claim, however, because she has not produced evi-
dence of an adverse employment action. See Everroad,
604 F.3d at 477; Nagle v. Vill. of Calumet Park, 554 F.3d
1106, 1114 (7th Cir. 2009). Berry contends that Gorman
made sure she was not placed on injured-on-duty
status, which would have entitled her to workers’ com-
pensation. But she offers no admissible evidence to back
up that assertion. In this instance, Berry’s unsupported
allegations are only speculative and conclusory, and
therefore cannot withstand summary judgment. See
Everroad, 604 F.3d at 480 n.4; Payne, 337 F.3d at 772-73.
Finally, Berry forfeited her claim of retaliation. At
argument, her attorney conceded that her complaint did
not include a retaliation claim, but maintained that she
had preserved the claim by raising it in her response
to the CTA’s motion for summary judgment. That was
incorrect; a plaintiff may not use her brief opposing
summary judgment to introduce claims not stated in
her complaint—at least not without a defendant’s con-
sent, which the CTA did not offer. See Burks v. Wis. Dep’t
of Transp., 464 F.3d 744, 758 n.15 (7th Cir. 2006);
Whitaker v. T.J. Snow Co., 151 F.3d 661, 663-64 (7th Cir.
1998); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th
Cir. 1996).
Accordingly, we A FFIRM the judgment of the district
court regarding Berry’s discrimination and retaliation
claims, but R EVERSE the court’s judgment regarding
No. 07-2288 11
Berry’s claim of a hostile work environment and
R EMAND for further proceedings.
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