Donnie M. WILSON, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee.
No. 98-1833.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 15, 1998. Decided March 31, 1999.
Even if Dominick‘s properly served a valid citation to discover assets under the former ¶ 2-1402, that act did not give rise to a lien in its favor on Makula‘s partnership units. In light of our conclusion on this point, we have no occasion to reach the trustee‘s arguments in support of the judgment based on his strong-arm powers or the preference rules.
The judgment of the district court is AFFIRMED.
Stephen E. Balogh, III (argued), Williams & McCarthy, Rockford, IL, for Defendant-Appellant.
Dori K. Bernstein (argued), E.E.O.C., Office of General Counsel, Washington, DC, for Amicus Curiae.
Before HARLINGTON WOOD, JR., CUDAHY, and EASTERBROOK, Circuit Judges.
CUDAHY, Circuit Judge.
Donnie Wilson worked on the assembly line at Chrysler‘s Belvidere plant from 1970 until 1992 when Chrysler refused to reinstate her after a medical leave of absence. The proffered reason for the refusal was that Wilson suffered from paranoid schizophrenia and was therefore totally and permanently disabled. Wilson sued under
I. Standard of Review
We review the district court‘s decision to grant summary judgment de novo, see Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir. 1998), applying the same criteria as the district court. See Rodriguez v. City of Chicago, 156 F.3d 771, 775 (7th Cir. 1998). We view the record and all reasonable inferences from it in the light most favorable to Wilson, the non-movant. See Senner v. Northcentral Technical College, 113 F.3d 750, 754 (7th Cir. 1997). To defeat summary judgment, she must set forth specific facts showing that there is a genuine issue for trial. See
II. Retaliation
In June 1991, Wilson took a medical leave of absence from Chrysler. Her physician, Dr. Nicholson, diagnosed severe fatigue syndrome and recommended release from work until April 1992. At that time, Nicholson and Wilson‘s social worker, Forest Price, determined that she was able to return to work. However, Wilson was also examined by a Chrysler physician, Dr. Vitek, who opined that she was suffering from paranoid schizophrenia and that she
Chrysler contends that it did not allow Wilson to return to work because she suffered from paranoid schizophrenia which rendered her permanently and totally disabled. The issue on appeal is whether Wilson has raised a genuine issue whether she was fit and able to work and was therefore constructively discharged. Wilson characterizes Chrysler‘s disability determination as a pretext for retaliation. But herein lies the rub for Wilson—how can she square her contention that she was fit and able to return to work with her prior claim of disability before the SSA? The district court could not reconcile these two apparently conflicting positions and reasoned that Wilson was estopped from pursuing her present line of argument. Judicial estoppel prevents a party that has taken one position in litigating a particular set of facts from later reversing that position to her advantage. The doctrine is equitable and is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories. Levinson v. United States, 969 F.2d 260, 264 (7th Cir. 1992). Thus, we accept as probative and presumptively dispositive a party‘s prevailing position in previous litigation or quasi-judicial proceedings. See DeGuiseppe v. Village of Bellwood, 68 F.3d 187 (7th Cir. 1995).
However, we must be careful to distinguish cases under the Americans With Disabilities Act (ADA), see
In the present case, there is no comparable divergence between the SSA‘s inquiry into Wilson‘s disability and our examination of her constructive discharge claim. The inquiry posed by the SSA was whether Wilson suffered from paranoid schizophrenia—a listed impairment under the
On this decisive issue—whether she has the relevant impairment—Wilson‘s position has been anything but consistent. The medical opinions of Vitek and Glenn are the common thread that unravels this inconsistency. Wilson concedes that the diagnosis of paranoid schizophrenia rendered automatic the SSA‘s determination of total disability. Similarly, it formed the basis for Chrysler‘s determination that she was totally and permanently disabled and
Wilson‘s chameleonic approach is reminiscent of DeGuiseppe. We held there that a police officer who was receiving disability pension benefits was estopped from claiming that he had been discharged in retaliation for exercising his First Amendment rights. At a pension board hearing, DeGuiseppe had testified that he was disabled and had submitted the reports of two physicians in support of his claim while omitting the more favorable diagnosis of his own physician. We determined that DeGuiseppe‘s stance was inconsistent with his subsequent claim of retaliatory discharge and in so holding we rejected his plea that he had been forced to seek and accept disability benefits as a means of self-preservation. See 68 F.3d at 191-92.
Wilson argues that her case is different because, unlike DeGuiseppe, she engaged the system in good faith. She points out that she has consistently maintained that she is not disabled; that she asked the SSA to reverse its determination; and that she attempted to return benefits received. This argument can be construed in two ways. Wilson may be implying that the SSA somehow forced her to accept financial assistance against her will—a suggestion so implausible that it merits no further comment. On the other hand, Wilson may be suggesting simply that she was naive rather than manipulative. Even so, we fail to see how the equities can fall in her favor. Wilson voluntarily applied for disability benefits and has been reaping the rewards ever since. She could have taken effective steps to distance herself from the process—by formally withdrawing her application or resorting to the pragmatic shortcut of refusing to cash her disability checks—but chose not to do so. And although she claims she was left with no choice but to seek assistance from the SSA, she has not presented any basis for believing that she faced the Hobson‘s choice of disability or poverty. DeGuiseppe, 68 F.3d at 192.
The logical extension of Wilson‘s line of argument is that the acts of applying for and receiving disability benefits are mere technicalities, without legal effect. We cannot accept this position. On the contrary, we subscribe to the view that her actions—in applying for and receiving disability benefits—speak louder than her words. The bottom line is that Wilson successfully petitioned the SSA for an award of disability benefits and, having performed a volte face, now asserts that she was not disabled after all. Whether she truly believed the premise of her prior claim is beside the point. To take her at her word and find that she was not disabled when she sought the assistance of the SSA would lead to the inescapable conclusion that she procured disability benefits by deceit. To allow Wilson to succeed would make a mockery of the
III. Hostile Work Environment
Under
Wilson contends that she was continually harassed by her supervisors and coworkers at Chrysler. It is important to realize that the facts surrounding Wilson‘s claim are largely in dispute. But construed in Wilson‘s favor, the facts are essentially as follows. The alleged harassment dates back to the late 1970s when Wilson was taken off her job on the paint line and assigned to the masking deck. The official explanation for the transfer—conveyed by two male foremen—was that her breasts were leaving titty prints in the paint on the cars. She complained to her union steward but no action was taken. For the next few years, Wilson worked relatively undisturbed. However, when she was assigned to the sealer deck in the mid-1980s, her co-workers began a campaign of harassment that persisted for the remainder of her employment at Chrysler. Over the course of approximately eight years, Wilson endured repeated acts of harassment involving improper touching, verbal abuse and the display of offensive objects, cartoons and pictures. Wilson estimates that several employees—some acting anonymously—contributed to this miscellany of misconduct.
Several of Wilson‘s complaints involve the use or display of fake penises constructed from a rubber sealant used at the plant. At least twice a week, for the duration of Wilson‘s employment on the sealer deck, fake penises were sent down the assembly line past her work station. Wilson‘s pleas that her co-workers desist served only to encourage the practice. Occasionally she complained to management but most of the time she said nothing and simply threw the offensive objects away. Fake penises played a prominent role in other incidents. Sometime in the early 1980s, in the presence of four or five employees, a male co-worker whom Wilson identifies as Hector Garcia brandished a fake penis between his legs and yelled at Wilson: Look what I got for you; bet you can‘t handle this. Wilson reported the incident to a foreman and to Fred Money, a Chrysler representative who was responsible for the investigation of employee complaints, but she contends that no action was taken. In September 1986, and twice again in 1991, a fake penis was left on a car in her work area.
Wilson relates two allegations of offensive touching. The first involved Ed Greg, a male inspector at the plant who would regularly stand close to her, look at her breasts and say umm. Greg would deliberately position his hand so that it would come into contact with Wilson‘s breasts when she bent down. The second allegation comprises a single incident in 1990 or 1991 when a male co-worker, Robert Shaw, walked up to her and flicked his finger on her breast. Wilson also cites several humiliating exchanges involving verbal abuse. On September 26, 1986, co-worker Eddie Jackson called her Hi, ho, meaning whore. She complained to Money, who admonished Jackson. Also in September 1986, Wilson asserts that co-worker Frank Lewis accused her of sucking a white boy‘s dick on the roof. She reported the incident to Money, supervisor Larry Daniels and personnel representative Charles Cady, and the latter subsequently spoke to Lewis. In 1991, a male co-worker commented: I can make your pussy bloom. In 1990 or 1991, another coworker told plaintiff that white men only spoke to her because they wanted [her] tu-tu.
More frequently, Wilson was taunted with offensive literature. She recalls an incident in the mid-1980s when a male coworker handed her a paper that pontificated on why beer is better than women. In 1984, Hector Garcia showed her a picture
In 1984, Chrysler adopted standards of conduct prohibiting sexual harassment. These standards were augmented by a 1987 policy statement which included a commitment to fully investigate and respond to complaints in a prompt and confidential manner. Wilson contends that at various times she reported instances of harassment to several of her superiors, including Money, Cady, Daniels and Brad Adams, her immediate supervisor. She suggests that her grievances were ignored, that she was actively dissuaded from complaining and that voicing complaints tended to exacerbate her predicament.9 In his deposition, Money testified that in the normal course of events he would investigate co-worker harassment and make recommendations regarding appropriate disciplinary or remedial action. But while he acknowledged receiving some complaints—reports from Wilson about specific incidents in the mid-1980s as well as general reports about fake penises being placed on the assembly line—with the exception of the Hi, ho incident, Money could not recall whether any investigative steps were taken. Cady testified that he had investigated at least one complaint by Wilson but could not remember any details. He also recalled one complaint about fake penises on the assembly line. Adams denied receiving any complaints of sexual harassment. On a related note, the record indicates that Chrysler received some complaints about Wilson. On February 3, 1984 and again on October 2, 1986, Wilson was admonished for verbally abusing coworkers and supervisors in retaliation for alleged harassment. In November 1989, two female co-workers accused her of instigating a disturbance and suggested to management that she needed psychological care.
The district court dismissed Wilson‘s claim on the basis that she had failed to present sufficient evidence that Chrysler was liable for the alleged harassment. An employer is vicariously liable for a hostile environment created by a supervisor subject to certain defenses. Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (citing Faragher, 524 U.S. at 807-08; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). Liability for co-worker harassment requires a showing of negligence on the part of the employer. See Baskerville v. Culligan Int‘l Co., 50 F.3d 428, 431-32 (7th Cir. 1995). Thus, a plaintiff must show that her employer failed to take reasonable steps to discover and remedy the harassment. See Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).
Allegations of supervisor harassment are limited to the greeting card of June 1991—the 38 signatures on the card include those of one supervisor
Since 1984, defendant has had standards of conduct which prohibit harassment of any kind. The undisputed facts are that defendant was aware of sexually harassing conduct in 1984 and in 1986 and on at least two occasions spoke to the purported harassers. Plaintiff has not presented evidence that defendant was on notice regarding sexual harassment occurring after 1986 other than a greeting card signed by several employees she received while on sick leave in 1991. Specifically, plaintiff does not claim to have even reported any of the conduct in 1991, other than the card. Plaintiff reported a cartoon in 1990 to her union steward, but there is no allegation nor evidence he reported it to defendant. Wilson v. Chrysler Motors Corp., 1998 WL 83098, *5 (N.D. Ill. Feb. 25, 1998). In the view of the district court, Wilson‘s complaint about the greeting card was an example of too little, too late and did not constitute notice of a hostile work environment. Id. at 26.
We believe that the district court‘s analysis of the record was incomplete. The central finding below was that Chrysler was not on notice of any acts of harassment after 1986, other than the greeting card. Yet the underlying premise—that Wilson failed to report any incidents of harassment during this time—is contested. The parties disagree as to the frequency of Wilson‘s complaints to management and the nature of Chrysler‘s response. Reading the facts in the light most favorable to Wilson, a reasonable jury might infer that some misconduct was reported to Chrysler during this period.
More significant, however, is the district court‘s failure to consider the possibility that Chrysler had constructive notice of the harassment. We have previously recognized that notice may be presumed where the work environment is permeated with pervasive harassment. See Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997); Zimmerman v. Cook County Sheriff‘s Dept., 96 F.3d 1017, 1018-19 (7th Cir. 1996). We note that virtually all of the disparate acts of harassment of which Wilson complains took place on the floor of the assembly plant which, by design, is a peculiarly communal employment forum. The cartoons and fake penises were displayed in common areas or placed in open view at Wilson‘s work station. Many of the individual incidents involving verbal abuse or sexually explicit gestures took place in the presence of other employees. It is fair to say that much of the alleged misconduct was public and deliberately exhibitionist. In these circumstances, it is reasonable to conclude that Chrysler had knowledge of at least some acts of harassment. To hold otherwise, we must believe that every member of Chrysler‘s management team was oblivious to such openly hostile behavior. Thus, there is sufficient evidence that Chrysler should have known about the alleged harassment. See Brooms v. Regal Tube Co., 881 F.2d 412, 421 (7th Cir. 1989).
Assuming that Chrysler was on notice, we must consider whether it took adequate steps to investigate and remedy the harassment. Chrysler finds itself in a Catch-22: having denied knowledge or notice, it cannot plausibly argue adequate response. Accordingly, it neither suggests that it conducted investigations, disciplined employees and took remedial action nor otherwise defends its lack of action. Chrysler concedes that it received reports of harassment in 1984 and in 1986 but—contrary to the apparent view of the district court—the fact that management admonished two employees for verbal abuse falls far short of an adequate response. Since the record supports an inference that Chrysler failed in its legal duty to
Because the district court held that Chrysler could not be liable, it did not reach the further issue whether Wilson had been subjected to a hostile or abusive work environment. In order to prevail, Wilson must show that her work environment was both subjectively and objectively hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Since Wilson clearly believed that her work environment was hostile, we focus on the objective test which is measured by a reasonable person‘s perception of the totality of the circumstances including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance. Id. at 23; Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 534 (7th Cir. 1993). The criterion is not what a reasonable employee is capable of enduring but whether the offensive acts alter the conditions of employment. See Dey v. Colt Constr‘n & Dev. Co., 28 F.3d 1446, 1455 (7th Cir. 1994).
As a preliminary matter, Chrysler points out that the bulk of the alleged harassment falls outside the statute of limitations. Wilson filed her EEOC charge on December 9, 1991, which would put all conduct arising before February 12, 1991, beyond the reach of
In any event, a plaintiff may obtain relief for time-barred acts by linking them to acts that are within the limitations period. See Selan v. Kiley, 969 F.2d 560, 564-65 (7th Cir. 1992). Under the continuing violation doctrine, a consistent pattern of harassment is treated as one continuous act that ends within the limitations period. Id. at 564. The rationale is that it would be unreasonable to require the plaintiff to sue separately where it is the cumulative effect of a series of violations that renders her working conditions intolerable. See Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989). Nevertheless, the plaintiff must sue as soon as the harassment becomes sufficiently palpable that a reasonable person would realize she had a substantial claim under
Whether Wilson is entitled to any relief is another matter. Since Wilson‘s claim arose before the Civil Rights Act of 1991, equitable relief such as back pay is the only available form of redress. Wilson has now definitively lost her claim for reinstatement. Absent the possibility of damages, claims of sexual harassment prior to discharge are not actionable. See Bohen v. City of East Chicago, 799 F.2d 1180, 1184 (7th Cir. 1986) for a pre-1991 articulation. At least at first glance, this may be fatal to Wilson‘s claim under
Finally, we note that the sexual harassment claim came before the district court on cross-motions for summary judgment. With cross-motions, our review of the record requires that we construe all inferences in favor of the party against whom the motion under consideration is made. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998); Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456 (7th Cir. 1997). While Wilson has raised genuine issues that defeat Chrysler‘s motion for summary judgment, it does not follow that she is entitled to summary judgment on the basis of her own motion. We have noted that many of the facts are contested. Moreover, Wilson relies for the most part on her own testimony which is at times confusing and inconsistent.10 Reading the record in the light most favorable to Chrysler, the evidence is insufficiently conclusive to justify granting summary judgment in Wilson‘s favor. The record supports an inference that Chrysler subjected Wilson to a hostile work environment. But this is just one possible inference and we recognize that a jury might reach a different conclusion. Accordingly, we reverse the district court‘s grant of Chrysler‘s motion for summary judgment but we affirm its denial of Wilson‘s summary judgment motion.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
EASTERBROOK, Circuit Judge, concurring.
I am not as sure as my colleagues that persuasive justifications (172 F.3d at
An applicant for Social Security disability benefits could say that he is disabled in law even though not disabled in fact. Disability benefits are awarded to persons with certain conditions (such as blindness) or a combination of conditions and age (for example, illiterate and over 50, coupled with medical inability to do more than sedentary work). The economy may contain a few thousand jobs such persons can do, but the federal bureaucracy deems the effort to identify which of these people could work sufficiently unpromising that it awards benefits to all. A person who applies for and receives benefits on this categorical basis claims that he is disabled in a legal sense only. If an illiterate person over 50 with a back problem locates a job he can perform, the employer can‘t say no on the basis of the back problem; that would violate the ADA, and not simply because the ADA requires employers to make accommodations. My hypothetical person would be able to work even without an accommodation. So this person would be entitled to relief if a private employer said something along the lines of we don‘t hire people with back problems. Similarly, some people are able by exceptional effort to rise above their disabilities even though the Social Security Administration thinks that most similar persons are unable to work. Again the ADA would protect such a person who located a job, notwithstanding earlier receipt of disability benefits.
But an applicant for Social Security disability benefits also might say that he is disabled in fact, suffering from a medical condition so severe that he cannot do the work an employer requires. This was the sort of application filed by the plaintiff in Haschmann, but we held, following the law established by Weigel, that Haschmann could pursue an ADA suit even though she told the Social Security Administration that she was too afflicted to show up for work.
The Solicitor General‘s brief in Cleveland distinguishes between the application for Social Security benefits and the factual representations made in the application. The application itself may be designed to take advantage of public largess that does not depend on factual inability to work and therefore does not preclude litigation under some other statute; but factual representations made in an application may defeat a claim under that other law. This seems to me a sensible resolution of a difficult problem, and if adopted it would be as applicable to a claim like Wilson‘s as it would be to a claim for accommodation. Some language in McCreary, and more in Flowers, nudges this circuit in that direction—though it is hard to square with more absolutist language in Weigel.
To decide this case, however, all we must do is choose between competing views of Wilson‘s abilities. Wilson‘s submission is that she is able to work and was let go only because she complained about sexual harassment by other employees.
Wilson represented to the Social Security Administration that she suffers from paranoid schizophrenia. Paranoid schizophrenia is a listed impairment that made a grant of disability benefits automatic,
Wilson‘s current contention—that she applied for disability benefits only because Chrysler threatened to cut her benefits under the collective bargaining agreement—does not explain her failure to seek and obtain other work. Nor does it justify her conduct. Our legal system offers many ways to contest an employer‘s errors or improper demands; lying to the government to get money from the Treasury is not among them. A court therefore is entitled to assume that Wilson told the truth when obtaining disability benefits. The nature of her condition, coupled with her decision to exit the labor force, supports a grant of summary judgment for Chrysler on the retaliation theory, no matter how Cleveland turns out in the Supreme Court.