DocketNumber： 07-2197
Citation Numbers： 544 F.3d 766, 2008 U.S. App. LEXIS 19994, 104 Fair Empl. Prac. Cas. (BNA) 449, 2008 WL 4182647
Judges： Posner, Wood, Williams
Filed Date： 9/12/2008
Status： Precedential
Modified Date： 10/19/2024
Jessica Magyar (to whom we refer in this opinion using her former last name of Houston) lost her job at Saint Joseph Regional Medical Center (“the Hospital”) after she complained about perceived sexual harassment. She sued the Hospital on the theory that it had violated the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Reasoning that the evidence Houston submitted in response to the Hospital’s summary judgment motion could not support a finding of causation, or in the alternative could not show that the Hospital’s stated motive for terminating her was pretextual, the district court granted summary judgment to the Hospital. If we were the ultimate trier of fact, we would find this to
I
While attending college, Houston took a position on April 19, 2004, as a part-time assistant scheduler in the Hospital’s surgical department. She was classified as a PRN employee, which means that her work hours depended on the needs of the Hospital; she did not need to conform to regular hours, did not receive benefits, and was not required to accept work hours when offered. The equivalent of a full-time surgery scheduler position was covered by three people: one regular part-time employee (Carmen Sanchez) who worked half-time, and two PRN employees (Houston and Mikisha Williams, also a college student) who together took up the other half of the hours.
One day, Dale Carl, a 52-year-old male co-worker, came into a crowded Hospital lounge where there were no free chairs. Plopping down on 22-year-old Houston’s lap, he whispered “You’re pretty” into her ear. Houston was not amused. This happened some time between her April hiring date and late July or early August. That was not the first instance of Carl’s misbehavior. Houston testified at her deposition that approximately one week before that incident, Carl had also sat on her lap and whispered a comment about her appearance. She explained that “I was hoping it was just a one-time occurrence, and I didn’t — I didn’t really — that was my first real job and I really didn’t know what to do. And I had to check to see, you know, like what are the exact standards in the work force. And then I knew once he did that the second time that I had to talk to her because it was not a one-time occurrence.” When Carl repeated the same move, Houston concluded that it was time to take action.
Around the first week of August, Houston reported the second incident to Pam Goddard, her boss. During this meeting, Goddard expressed reluctance to speak to Carl about the incident if Houston was unwilling to file a formal complaint. In response, Houston revealed that she had been a victim of sexual assault in the past and therefore she was sensitive to such behavior. Goddard agreed to speak to Carl and apparently did so later that day. Although the dissent asserts that Carl “apologized profusely,” nothing in the record shows that he ever said a word to Houston or that she even heard that he had apologized to Goddard. The reason is because Goddard actually told him not to apologize to Houston when he asked whether he should do so.
The dissent contends that Goddard dealt with the sexual harassment complaint effectively, as no further incidents took place. But that is only half the story; from Houston’s perspective, there was no evidence that anything (effective or otherwise) had happened. Goddard took no steps whatsoever to communicate with Houston regarding any resolution of her complaint, and so a trier of fact could infer that Houston (especially given the earlier incident of sexual assault) was left in fear that at any moment there might be a third incident. Goddard does not even allege that she followed up with Houston; her deposition testimony reveals that she simply assumed that the matter had been put to rest: “I talked to Mr. Carl that afternoon regarding Ms. [Houstonj’s complaint. I heard nothing more from Ms. [Houston] regarding Mr. Carl and believed the issue had been resolved to Ms. [Houston]’s satisfaction, as I had spoken to Mr. Carl, as Ms. [Houston] requested, and no further incidents had occurred.”
Therefore, on September 17, having received no follow-up information from Goddard about the resolution of the incident, Houston complained about Goddard’s failure to respond to her complaint to the Hospital’s General Counsel and Organizational Integrity Officer, Robert Wade. Sometime during the following week, Wade contacted Human Resources (“HR”), and HR instructed Goddard to meet with Houston again. On September 24, Houston and Goddard met twice; at some point, the discussion turned from the incident with Carl to the question why Houston felt the need to approach Wade. The next day, Goddard emailed Wade to report that Houston’s issues “are resolved.”
Goddard was mistaken. On September 26 (nine days after her first contact with Wade), Houston sent Wade a formal letter addressed “To Whom It May Concern,” complaining about the manner in which Goddard had handled her initial complaint and the new fact that Houston’s “job had been posted on the job listings” without notifying her, in apparent “retaliation for me turning her [Goddard] in.” Houston’s affidavit and her September 26 letter both indicate that she considered it inappropriate that she had to reveal her traumatic past in order to prod Goddard into action. On October 7, Goddard submitted to HR a job requisition form to restructure the position covered by PRN employees Houston and Williams into a single regular halftime position with benefits. The dissent defends Goddard’s decision to expend budget funds on the payment of benefits by assuming that, if Goddard did not use these funds, they would disappear in the next budget cycle. There is no support in the record for this factual assumption (which interprets the record in the light most favorable to the defendant Hospital), nor for assuming that this fact, even if true, motivated Goddard’s decision.
In any event, Houston was unable to bid for the new position because it conflicted with her class schedule. On October 20, the Hospital gave the job, which now included benefits, to Williams, who was the only person to bid for it since she had dropped out of college and freed up her schedule. Two days later, Goddard told Houston that she remained classified as a PRN and that she would be called if she was needed.
Goddard’s statement turned out to be only half true. Shortly after she told Houston that she was still a PRN, Goddard told Williams and Sanchez to let her know if they needed someone to cover for them, rather than calling Houston. The Hospital asserts that the reason for this instruction was Goddard’s business policy of covering shifts with regular employees whenever it is possible to do so without paying overtime, rather than using PRNs. Between October 22, 2004, and April 26, 2005, Houston was not called in to work at the Hospital a single time. On April 26, 2005, she received notice that she had been formally terminated because she did not
Believing that the Hospital had retaliated against her for complaining about Carl’s harassment and for complaining about its failure adequately to address that harassment, Houston filed this suit under Title VII. The district court granted summary judgment to the Hospital, finding that Houston had failed to establish a pri-ma facie case of retaliation, and that she failed to show that the Hospital’s assertion that it was planning to restructure her job was pretextual.
II
Before turning to Houston’s arguments on appeal, we should address a procedural point that the Hospital has raised in support of its judgment. In the district court, the Hospital moved to strike Houston’s affidavit because it was unsigned, bearing instead solely an “electronic signature.” The district court denied the motion because Houston submitted another affidavit on which her actual signature was added near the electronic signature. On appeal, the Hospital asks this court to disregard Houston’s affidavit and thus to evaluate Houston’s response to its summary judgment without that information.
A district court’s ruling on a motion to strike an affidavit is reviewed for an abuse of discretion. Mannoia v. Farrow, 476 F.3d 453, 456 (7th Cir.2007). The Hospital was not prejudiced by the initial defect in the affidavit (to the extent that it was a defect at all in a world where electronic signatures are regularly honored, see, e.g., Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 (requiring recognition of electronic signatures), Uniform Electronic Transactions Act, and Indiana Electronic Digital Signature Act, Burns Ind.Code Ann. § 5-24-3-1). In any event, Houston immediately substituted a copy with a traditional signature. The district court did not abuse its discretion in denying Hospital’s motion to strike. Houston’s affidavit is thus properly part of the record before us.
Ill
The only issue remaining in this appeal is whether the district court erred in granting summary judgment for the Hospital. We review a grant of summary judgment de novo. Sound of Music Co. v. 3M, 477 F.3d 910, 914 (7th Cir.2007).
A claim of retaliation under Title VII may be established under either the direct method or the indirect burden-shifting method, which is an adaptation of the familiar framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.2002). Houston has decided to rely on the direct method of proof. To establish a prima facie case this way, she must “present direct evidence of a statutorily protected activity, an adverse employment action, and a causal connection between the two.” Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.2003). We consider each element in turn.
A. Statutorily protected activity
The Hospital argues that Houston was not engaging in statutorily protected activity because, even by Houston’s allegations, the retaliation was a response to her approaching Wade to complain about Goddard’s complaint-management skills (“in retaliation for me turning her in”), not her earlier approach to Goddard to complain about Carl’s alleged sexual harassment.
We note that, to succeed on a retaliation claim, Houston need not prove that the underlying conduct she perceived as sexual harassment actually was serious enough to constitute a Title VII violation. Instead, she need only show that, when instituting her grievance, she had a “sincere and reasonable belief’ that she was opposing an unlawful practice. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 706-07 (7th Cir.2000). The objective reasonableness of the belief is not assessed by examining whether the conduct was persistent or severe enough to be unlawful, but merely whether it falls into the category of conduct prohibited by the statute. Contrast id. (holding that grievance about harassment engendered by “homophobia” was not objectively reasonable and thus could not form the basis of a retaliation claim, because “[sjexual orientation is not a classification that is protected under Title VII”). Title VII does protect employees from discrimination on the basis of sex, and sexual harassment is a recognized species of such discrimination. 29 C.F.R. § 1604.11.
In this case, the record sufficiently demonstrates that Houston subjectively felt that she had been sexually harassed. In addition, the lap incidents involved actual touching. This court has often recognized in the past that unwanted physical contact falls on the more severe side for purposes of sexual harassment. As we noted in Patton v. Keystone RV Co., 455 F.3d 812 (7th Cir.2006):
*772 Our precedent provides some guidance on how to evaluate the severity of harassment:
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers....
455 F.3d at 816, citing Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995). See also, e.g., Worth v. Tyer, 276 F.3d 249, 268 (7th Cir.2001) (“The fact that conduct that involves touching as opposed to verbal behavior increases the severity of the situation.”); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir.2000). Having a man old enough to be her father plop into her lap and put his lips to her ear to whisper “you’re beautiful” is the type of occurrence that, if it happened often enough, could constitute sexual harassment, and so Houston’s grievance was objectively reasonable.
Viewing the evidence in the light most favorable to Houston, we conclude that she has shown that she engaged in a statutorily protected activity when she complained up the chain of command.
B. Adverse employment action
The parties do not dispute that Houston suffered an adverse employment action. Whether we look to her initial loss of work around October 20, 2004, when her PRN position disappeared and Williams received the new part-time job, or we focus on her eventual out-and-out termination on April 26 (with the added insult stipulating that she was not eligible for rehire), her case easily satisfies this element.
C. Causal connection
The last element Houston must establish is a causal connection between her statutorily protected activity and the adverse employment action. Suspicious timing, together with other facts, can sometimes raise an inference of a causal connection. Lalvani v. Cook County, 269 F.3d 785, 790 (7th Cir.2001); Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir.2000). Houston and the Hospital argue over whether the window of time in this case was narrow enough to be suspicious. We can measure the time in several ways. The way most favorable to the Hospital would be from Houston’s early August complaint to Goddard to her termination letter almost ten months later. The way most favorable to Houston would be from her renewed complaint to Wade on September 26 (when Goddard realized that Houston was not going to let the subject drop) to the day when Goddard submitted the restructuring request to HR, on October 7 — a mere nine days. Or one might look at Houston’s first complaint to Wade on September 17 as the starting-point and her dismissal from her existing PRN job on October 20, approximately a month later, as the end-point. This court has found a month short enough to reinforce an inference of retaliation. See Lang v. III. Dep’t of Children & Family Sews., 361 F.3d 416, 419 (7th Cir.2004) (adverse employment actions began “the same month” plaintiff filed the racial discrimination grievance with his union).
Although the lap incidents took place in early August (and perhaps a bit earlier), we think that the approach most favorable to Houston is to assume that the suspicious-timing clock was restarted on September 17, because that is when Houston complained to Wade, the General Counsel and Integrity Officer. From that point, it is at most nine days before the first sign of
The Hospital attempts to minimize the causal link between Houston’s complaint to Wade and Goddard’s allegedly retaliatory restructuring of the job by pointing out that Goddard “explicitly stated (in a secretly-tape-recorded conversation) that she had no problem with ‘anyone taking anything to the Legal Department.’ ” First of all, no trier of fact would be compelled to believe Goddard’s protestation of open-mindedness. Second, while Goddard did literally utter these words, they are sandwiched between other words; taken as a whole, a rational jury could interpret the conversation in Houston’s favor. Here is the full quotation:
I have no problem with anyone taking anything to the legal department but I am just curious when the situation was dealt with I thought it was dealt with very effectively it was a positive out come. You got what you asked for. And yet you still because you don’t think I said the right words or I phrased the right sentence what was your expectation of what you wanted to see happen after taking it to the hospital (?) department.
(Hospital Supp.App. 36) (imperfections in transcript of the tape-recorded conversation). A reasonable jury could find Goddard’s statements defensive and accusatory. She comes across as having a substantial problem with Houston’s decision to take the matter to the legal department, despite her perfunctory statement to the contrary. This, together with testimony from Houston that Goddard’s tone with her was defensive and irritated, Goddard’s own admission that she felt “shocked” and “bewildered” when she learned that Houston had complained about Goddard’s handling of the complaint, and the fact that Goddard posted Houston’s job on the job listings within a few days of this meeting, is more than mere suspicious timing. It is sufficient to raise an inference of causation.
D. But-for Causation
Even if all that is true, the Hospital argues, it is still entitled to summary judgment on the basis of what it calls un-rebutted evidence that Goddard already intended to eliminate Houston’s job for a legitimate business reason. Compare Stone, 281 F.3d at 644 (holding that summary judgment in favor of defendant is required when defendant presents “unre-butted evidence that he would have taken the adverse employment action against the plaintiff even if he had had no retaliatory motive”).
Through Goddard’s deposition, the Hospital presented evidence that, upon taking the job of Director of Surgical Services in June 2004, Goddard learned that two PRNs (Houston and Williams) were doing the job of one regular part-time employee. Goddard testified that she regarded this as an undesirable business practice, because the budget allowed for a part-time position with benefits, so it should be filled in that way. (The point about benefits was an odd one, given the fact that benefits impose substantial costs on employers. An August 2005 study performed for the Small Business Administration reported that about 29% of a business’s total compensation costs for hourly employees is
It is true that Houston responded only by commenting that Goddard’s statements were self-serving, but this was just another way of saying that a trier of fact would have to evaluate everything Goddard said and decide what to accept and what to reject. Even without direct rebutting evidence from Houston, the Hospital’s evidence fails to establish that Houston first would have lost her PRN position and then would have been effectively blacklisted for all similar work until her termination in the absence of the retaliatory motive. It merely shows that the job restructuring might have occurred anyway at some point. On the other hand, a trier of fact might have seen Goddard’s explanation of the timing of her action as only a post hoc justification. Goddard stated:
I felt the situation I inherited (two PRN employees filling a regular, part-time position) would need to be addressed .... After dealing with the most critical issues facing the Surgical Service Department through the summer of 2004,1 turned my attention to correcting the use of PRN employees in a regular position in the fall of 2004.
The Hospital cannot meet its burden on summary judgment by having the actor say only that she was thinking vaguely of restructuring the job and planned to do it when she got around to it. The fact that the Hospital also presented testimony that Goddard had not had a situation in which two PRNs were sharing a job in all her prior management years at the hospital does not compel a different result. To the contrary, the fact-finder could conclude that the fact that the “situation” continued without being “addressed” for over three months indicates that there was no urgency or even inevitability about the Hospital’s decision to terminate Houston’s position. Although the dissent contends there is “no doubt” that Goddard intended to convert the PRN positions from the time she came on board despite the delay in carrying out this intention, it is able to come to that conclusion only by viewing the evidence in the record in the light most favorable to the Hospital. That is not the standard we must apply; in our view there is enough in the record to entitle a reasonable jury to find in favor of Houston.
* * *
Because Houston has established a pri-ma facie case of retaliation and the Hospital has not shown an absence of material fact on the question whether it would have taken the same action even without a retaliatory motive, we Reverse the district court’s grant of summary judgment in favor of the Hospital and Remand the case for further proceedings.
. We note in this connection that the procedures for addressing sexual harassment play a critical role in this area of the law. Indeed, in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), the Supreme Court recognized a procedural affirmative defense for employers, when harassment by a supervisor does not result in a tangible employment action. If the employer has exercised reasonable care to prevent and correct harassment (typically through an effective anti-harassment policy for the workplace) and the employee has unreasonably failed to avail herself of that policy, then the employer will prevail. See Far-agher, 524 U.S. at 807-08, 118 S.Ct. 2275; Ellerth, 524 U.S. at 764-65, 118 S.Ct. 2257. An employee in the midst of complaining about underlying harassment may well wish to criticize the company’s procedures at the same time.