Kimberly PASSANANTI, Plaintiff-Appellant, v. COOK COUNTY, et al., Defendants-Appellees.
No. 11-1182.
United States Court of Appeals, Seventh Circuit.
July 20, 2012
685 F.3d 655
For the foregoing reasons, the district court erred in granting summary judgment in favor of MGM on Ondricko‘s discrimination claims and we REVERSE the grant of summary judgment and REMAND the case for trial.
Luke A. Casson (argued), Attorney, Andreou & Casson, Chicago, IL, for Plaintiff-Appellant.
Gregory Vaci (argued), Attorney, Office of the Cook County State‘s Attorney, Chicago, IL, for Defendants-Appellees.
Before MANION, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
As the case comes to us, on review of a district court‘s decision to grant judgment as a matter of law despite a jury verdict in favor of Passananti, we must give her the benefit of conflicts in the evidence and reasonable inferences in her favor. We must assume: (a) that Sullivan repeatedly and angrily called Passananti a “bitch” to her face and in front of their co-workers; (b) that in 2005, he trumped up charges against her for violating a DRC policy
On Passananti‘s sexual harassment claim, we reverse the district court and reinstate the jury‘s verdict as to liability. The jury could reasonably treat the frequent and hostile use of the word “bitch” to be a gender-based epithet that contributed to a sexually hostile work environment. Passananti also presented sufficient evidence to allow the jury to find that the gender-based harassment she suffered was severe and pervasive, and that she did not unreasonably fail to take advantage of available corrective measures in her workplace. However, we affirm the district court‘s decision to set aside the jury‘s verdict on Passananti‘s discriminatory termination claim, which simply lacked any evidentiary support. As we explain below, there was considerable confusion in the district court‘s handling of the different claims and damage awards, but we can discern that the jury must have found that $70,000 was the proper amount of compensatory damages on the sexual harassment claim. The county is the proper defendant on that claim under Title VII of the Civil Rights Act of 1964. Punitive damages are not available against the county itself, so we remand for entry of judgment in favor of plaintiff and against the county for the sum of $70,000.
I. Rule 50(b) Issues: Standard of Review and Timeliness
Before digging into the evidence and the merits, we must address two procedural issues. Passananti argues that the district court never should have heard the defendants’ renewed motion for judgment as a matter of law under
If the court does not grant a motion for judgment as a matter of law under
Rule 50(a) , the court is considered to have submitted the action to the jury subject to the court‘s later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial underRule 59 .
“Because the
The trial transcript contradicts the factual basis for Passananti‘s first argument. At the close of plaintiff‘s case, the defense orally moved under
We take this opportunity to remind district courts and their staffs that it is the district court‘s responsibility to ensure that such documents delivered to the clerk or to the judge are made part of the court‘s file. See
Like much that happened in this trial, however, this oversight was harmless. The defendants clearly made a motion under
Plaintiff expresses concern that without a firm deadline, a judgment might never be entered or might be held hostage indefinitely, citing Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 846 (7th Cir.1978) (addressing calculation of post-judgment interest). See also Kiphart v. Saturn Corp., 251 F.3d 573, 587 (6th Cir.2001) (expressing concern about six-month delay in entering judgment while
II. Passananti‘s Claims
Having passed the procedural obstacles, we turn now to the merits of Passananti‘s substantive legal challenges to the district court‘s
The Plaintiff, KIMBERLY PASSANANTI, claims that she was subjected to gender discrimination and sexually harassing conduct by the Cook County Sheriff‘s Department and Director of the Day Reporting Unit, John Sullivan, and terminated in March, 2007 because of her gender. Mrs. Passananti asserts that the Defendants’ conduct was in violation of
Title VII of the Civil Rights Act of 1991 [sic] and in violation of the equal protection clause of the 14th Amendment to the U.S. Constitution.
Joint Statement of the Case, Dkt. 86.3
The law is well established that both
Despite this overlapping legal coverage of plaintiff‘s evidence, midway through trial, and unprompted by the defendants, the district court split Passananti‘s claims into one claim under
Court: And your theory of hostile work environment is, because these two women told the plaintiff about it, that created a hostile work environment. Is that your theory?
Counsel: No, that‘s not my theory. My theory is that testimony goes to policy and practice.
Court: And what does policy and practice go to? What count?
Counsel: Count 3 I believe it is.
Court: What is that count?
Counsel: It‘s 1983.
Court: And what are you pleading in 1983?
Counsel: Equal protection.
Court: In what regard? What was the gravamen of the denial of equal protection?
Counsel: Gender discrimination.
Court: In what specific regard?
Counsel: In terms of her reassignment ...
Court: Her termination?
Counsel: Her termination.
Court: And this somehow goes to that?
Counsel: Yes. I think this goes to the ... how that ... how women were treated in that unit.
Court: But your theory is that she was discriminated against by being terminated.
Counsel: Yes.
Court: There‘s no relevancy here. I‘m going to sustain the objection.
Tr. Vol. 2B, at 41-42. Based on this exchange, the district court held that Passananti had brought her sexual harassment claim under
A. Sexual Harassment Claim
The following facts are drawn from the trial record and are taken in the light most favorable to Passananti, the non-moving party who won the jury verdict. Passananti began working for the Day Reporting Center of the Cook County Sheriff‘s Department in 1994 as an investigator. In 2002 she was promoted to deputy director of the DRC. As deputy director, Passananti was responsible for the day-to-day operations of the DRC. Around that same time, John Sullivan became director of the DRC and Passananti‘s immediate supervisor.
From 2003 until Sullivan left the DRC in 2006, Passananti testified, Sullivan‘s conduct toward her was “very demeaning, degrading and demoralizing.” Specifically, he called her a “bitch” on “numerous occasions,” over a “progressive period of time.” Tr. Vol. 1 at 28. Sometimes he called her a “stupid bitch.” Sullivan also treated other women in the DRC this way: an investigator in the DRC, Sally Guide-Campillo, testified that as she was leaving Passananti‘s office in April 2006, she heard Sullivan say to Passananti, “what is that fucking bitch doing in here this time?” Tr. Vol. 3A at 19-20. A month later, Guide-Campillo overheard Sullivan tell another supervisor, “you better instruct that F‘n bitch to dress appropriately,” regarding a female DRC employee. Id. at 23.
In August 2005, Sullivan called Passananti into his office and told her that he was going to open an investigation into “a violation.” When Passananti told him that there was no violation, he started screaming at her and told her to “shut the ‘F’ up, you lying ‘B‘.” He then informed Passa-
To protest the investigation, her transfer, and Sullivan‘s repeated and demeaning use of the word “bitch,” Passananti wrote a ten-page letter to Dan Gallagher, special counsel to the Sheriff‘s Department. She alerted him to her belief that she was being targeted for discipline because she was a woman. Gallagher forwarded her letter to the Sheriff‘s Department‘s internal affairs office, but Passananti‘s complaint was not investigated. Sullivan permanently left the department in July 2006 for medical reasons. Passananti continued at the DRC until her termination in March 2007. She offered no evidence at trial that she suffered any sexual harassment between Sullivan‘s departure and her termination.
To prevail on her sexual harassment claim under
1. Hostile Work Environment Based on Sex
The district court ruled that Passananti‘s sexual harassment claim failed because no rational jury could conclude that Sullivan‘s language and conduct were directed at Passananti because she was a woman. The district judge considered Sullivan‘s statements to be “vulgar, rude, and ungentlemanly,” but, without additional proof, not sexist. Passananti, 2010 WL 3958645, at *8. “The mere fact that a defendant used a pejorative term that is more likely to be directed toward a female than a male does not alone establish un-
Our decision in Galloway provides some support for the district court‘s approach, for in that case, the plaintiff complained about her treatment by a supervisor who repeatedly called her a “bitch” or “sick bitch,” and we ultimately affirmed summary judgment for the employer on the plaintiff‘s sexual harassment claim. A close reading of Galloway, however, shows that the district court in this case properly allowed the jury to consider all the relevant circumstances and that the jury‘s verdict should be upheld. We concluded in Galloway that the harassment was based not on the plaintiff‘s sex but on personal animosity that arose out of an earlier “failed relationship” between the plaintiff and the harasser. Galloway, 78 F.3d at 1168. We took care to limit the scope of our reasoning in Galloway regarding the use of the word “bitch“: “We do not suggest, moreover, that the word ‘bitch’ can never figure in a sex discrimination case. When a word is ambiguous, context is everything.” Id. (emphasis in original). The word “is sometimes used as a label for women who possess such ‘women faults’ as ‘ill-temper, selfishness, malice, cruelty, and spite,’ and latterly as a label for women considered by some men to be too aggressive or careerist.” Id. In other words, we recognized that such repeated use of the word “bitch” to demean a female employee could support a claim of sexual harassment if it was sufficiently pervasive or severe and if the context showed a hostility to the plaintiff because she was a woman.
This case is different from Galloway because there was no contextual evidence here that undermined the reasonable interpretation that Sullivan‘s repeated and hostile use of “bitch” to address and demean Passananti was based on her sex. No additional proof was necessary to allow a jury to find that Sullivan used the word “bitch” as a gender-specific term and that its impact was to degrade women in general and Passananti in particular. We respectfully disagree with the district court on this point.
We recognize that the use of the word “bitch” has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law. The Eleventh Circuit sitting en banc issued a stern opinion on this issue, holding unequivocally that, “when a co-worker calls a female employee a ‘bitch,’ the word is gender-derogatory.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir.2010) (en banc) (noting that both the original definition of the term—“the female of the dog“—and its secondary meanings—“a lewd or immoral woman” or a “malicious, spiteful, and domineering woman“—are gender-specific), citing Webster‘s Third New International Dictionary 222 (2002). Additional evidence that “bitch” is “sex based” for purposes of establishing gender-based harassment is not necessary.
Reeves is consistent with decisions in several other circuits. “A raft of case law ... establishes that the use of sexually degrading, gender-specific epithets, such as ‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch’ ... has been consistently held to constitute harassment based upon sex.” Forrest v. Brinker Int‘l Payroll Co., 511 F.3d 225, 229-30 (1st Cir.2007), citing Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000-01 (10th Cir.1996) (finding it “beyond dispute” that plaintiff subjected to “vulgar and offensive epithets” such as “whore,”
It is also true that the word “bitch” is sometimes directed not at women but at men. This usage, however, does not make the word gender-neutral. As the Eleventh Circuit explained:
[E]ven accepting that Reeves‘s co-workers sometimes used the terms “bitch” and “whore” to refer to men, this usage may not make the epithets any the less offensive to women on account of gender. It is undeniable that the terms “bitch” and “whore” have gender-specific meanings. Calling a man a “bitch” belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace. Indeed, it insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.
We do not hold that use of the word “bitch” is harassment “because of sex” always and in every context, just as we did not hold that it never is in Galloway. Our precedents have made clear that the use of the word in the workplace must be viewed in context. See Yuknis v. First Student, Inc., 481 F.3d 552, 555 (7th Cir.2007) (“[A] gender-specific term of abuse, such as ‘son of a bitch,’ need not imply hostility based on the abused person‘s sex any more than saying ‘she is a bad worker’ need imply hostility based on her sex.“) (emphasis in original) (internal citation omitted); Galloway, 78 F.3d at 1167-68 (rejecting an automatic inference from abuser‘s use of the word “bitch” that his abuse was motivated by victim‘s gender rather than by personal dislike). But we do reject the idea that a female plaintiff who has been subjected to repeated and hostile use of the word “bitch” must produce evidence beyond the word itself to allow a jury to infer that its use was derogatory towards women. The word is gender-specific, and it can reasonably be considered evidence of sexual harassment.
Whether its use is sufficient evidence of actionable sexual harassment is, of course, another matter. As with so many other things, when gender-specific language is used in the workplace, these cases and others recognize that context is key. We must proceed with “common sense, and an appropriate sensitivity” to that context to distinguish between general vulgarity and discriminatory conduct or language “which a reasonable person in the plaintiff‘s position would find severely hostile or abusive.” Oncale, 523 U.S. at 82; see, e.g., Reeves, 594 F.3d at 810 n. 4 (“fucking” may strengthen
In some instances, it will be apparent that although the language used is gender-specific, the impact of the words is neutral. But we could not say as a matter of law in this case that the impact of Sullivan‘s language was gender-neutral. The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti‘s employment. Keeping in mind our deference to the jury‘s verdict and plaintiff‘s evidence, we must assume that Sullivan trumped up a charge of a workplace rule violation to target Passananti (other, male employees were also charged, but only she was disciplined). Sullivan also falsely accused Passananti of having sex with a DRC participant, a charge for which she was also investigated. (In law enforcement and correctional work, there must be few accusations more damaging to an employee‘s reputation than to accuse her of having sex with an inmate or supervisee.) In this context, it was error to treat Sullivan‘s repeated and hostile use of the word “bitch” as a matter of law as merely a “vulgar, rude, or ungentlemanly” workplace jibe. There was enough on this record for this jury to determine that when Sullivan called the plaintiff a “bitch,” he was attacking her based on her sex.
The district court erred in removing this determination from the jury‘s hands and imposing its own finding. It was up to the jury to decide about context and credibility, such as what Sullivan‘s motivations were when he repeatedly targeted the plaintiff with vulgar, gender-based epithets, targeted her for discipline, and made and then followed through on his threat to accuse her of work-related sexual misconduct. The jury was instructed properly to assess this evidence and to determine whether it believed that Sullivan conducted his campaign against the plaintiff because of her gender. So instructed, the jury determined that Sullivan‘s conduct was sex-based and was not neutral. Ample evidence in the record supports its judgment. The district court‘s rationale for overturning the jury‘s verdict on this basis was error.
2. Severe or Pervasive
It was not enough for the plaintiff to show only that she suffered mistreatment because of her gender. To rise to the level of an actionable hostile work environment, the complained-of conduct must have been sufficiently severe or pervasive to have altered the conditions of her employment such that it created an abusive working environment. See EEOC v. Management Hosp. of Racine, Inc., 666 F.3d 422, 432 (7th Cir.2012), citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Factors in this assessment include the severity of the allegedly discriminatory conduct, its frequency, whether it was physically threatening or humiliating or merely offensive, and whether it unreasonably interfered with the employee‘s work performance. See Gentry v. Export Packaging Co., 238 F.3d 842, 850 (7th Cir.2001), quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Offhand comments, isolated incidents, and simple teasing do not rise to the level of conduct that alters the terms and conditions of employment. See Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.1998), citing Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). This assessment
There is no question that gender-based comments and epithets, when used pervasively in the workplace, can meet the standard for severe or pervasive harassment. In Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th Cir.2007), we reversed summary judgment for an employer based on the plaintiff‘s evidence that her supervisor had made “at least eighteen sex-based comments” to her over the course of ten months, including “that women do not belong in the pressroom and think they know everything,” as well as comments directed at the plaintiff based on how she should dress or how she was positioned. Id. at 786. We concluded that the supervisor‘s comments were both severe and pervasive enough to survive summary judgment. See id. at 789.
Our approach in Boumehdi is consistent with that of other circuits. See, e.g., Tuli v. Brigham & Women‘s Hosp., 656 F.3d 33, 39-40 (1st Cir.2011) (repeated comments of male supervisor and co-workers against plaintiff, a spinal neurosurgeon, were sufficiently severe to support jury award in favor of plaintiff on hostile work environment claim; plaintiff was asked to “get up on the table and dance” at a graduation dinner, was told that she was “really hot” and was asked to wear a belly-dancing outfit, and was repeatedly referred to as a “little girl” while her ability to perform surgery was questioned); Aponte-Rivera v. DHL Solutions, (USA) Inc., 650 F.3d 803, 809 (1st Cir.2011) (upholding jury verdict in favor of plaintiff on hostile work environment claim based on evidence that supervisors generally referred to women as “dumbies” and made several gender-based comments to plaintiff, including that women were supposed to do household chores, that the person running the company had to “have balls,” and that the company had to be run by a man); Harris v. Mayor and City Council of Baltimore, 429 Fed.Appx. 195, 202 (4th Cir.2011) (reversing summary judgment in favor of employer on plaintiff‘s hostile work environment claim; plaintiff showed that harassment was sufficiently severe or pervasive based on evidence that workshop was decorated with pictures of nude and scantily clad women, and that women, including plaintiff, were regularly referred to as “bitches,” “cunts,” and “troublemakers“); EEOC v. Fairbrook Medical Clinic, P.A., 609 F.3d 320, 328-30 (4th Cir.2010) (supervisor targeted plaintiff with “highly personalized comments designed to demean and humiliate her” over the course of three years, including repeated comments about the size of plaintiff‘s breasts and supervisor‘s and supervisor‘s wife‘s genitals, that were sufficiently severe or pervasive to withstand summary judgment on plaintiff‘s hostile work environment claim).
In claims of racial harassment, racially-charged words certainly can suffice. See, e.g., Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir.2004) (although plaintiff failed to show that employer was negligent in discovering and remedying co-worker harassment, his work environment, in which he was repeatedly subjected to the word “nigger” and other race-based comments, was sufficiently severe or pervasive to support an otherwise actionable hostile work environment claim); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675-76 (7th Cir.1993) (finding an actionable hostile work environment when supervisors and employees referred to plaintiff by the term “nigger” between five and ten times during his employment). We see no reason to treat gender-based harassment claims any differently as a matter of law. Context matters, and it will often present a jury question.
The defendants do not contend that the jury was instructed improperly on this point (or any other). The jury, which was in the best position to judge witness credibility and demeanor, heard evidence that Sullivan called the plaintiff a “bitch” to her face nearly constantly for several years, from 2003 until 2006. Not only “bitch,” but, perhaps for greater emphasis, a “lying bitch” and a “fucking bitch.” See Reeves, 594 F.3d at 810 n. 4 (otherwise gender-neutral profanity can intensify a gender-specific adjective and can be relevant to a sex harassment claim). Sullivan used this language against the plaintiff in front of her co-workers, tending to undermine her authority in the workplace. Moreover, Sullivan did not use this gender-charged word in isolation. He also accused Passananti of violating a department “urine tamper” rule and of having sex with a DRC participant. These accusations led to her temporary transfer and suspension. Applying proper instructions, the jury found that Sullivan‘s epithets and actions unreasonably interfered with the plaintiff‘s ability to do her job—after all, his behavior had a tangible impact. The evidence was sufficient for the jury to find that Sullivan‘s conduct was so severe and/or pervasive as to have altered the conditions of her employment through an abusive working environment.
In support of the district court‘s judgment, the defendants argue that the plaintiff‘s working conditions could not have been subjectively so terrible after all because she did not submit an official departmental complaint form to internal affairs or to the Inspector General‘s office concerning Sullivan‘s harassment. The defendants were entitled to make this argument to the jury, and they did so, but the jury heard other evidence that pointed in the opposite direction. The plaintiff did indeed report Sullivan‘s conduct. As described below, she wrote a detailed letter to the Sheriff‘s special counsel. Her letter reached the Inspector General‘s office, but there is no evidence that the Sheriff‘s Department ever conducted an investigation or followed up in any way on the plaintiff‘s complaint. After Passananti complained once to no avail, the jury easily could have found, as Passananti testified, that further complaints would have been futile. Moreover, there is other evidence in the record supporting the jury‘s finding that the plaintiff felt subjectively that Sullivan‘s treatment was hostile. The day she was transferred out of the DRC, she became “hysterical,” crying and yelling, and was unable to drive herself home. The situation was “horrifying ... just to know that somebody had that much—had that much power over you that no matter what you said, no matter what the truth was, that it didn‘t matter. Nothing mattered at that point except for where it was going and how he was screaming at me.” Passananti also testified that she suffered from ongoing physical ailments as a result of her treatment in the Sheriff‘s Department, specifically depression, anxiety, insomnia and stomach problems. Her condition was severe enough that she sought medical treatment and was prescribed anti-anxiety medication. From all of this evidence, the jury easily could have concluded that the plaintiff found her workplace subjectively hostile even if she did not file another formal complaint.
When no tangible employment action is taken against the employee in the course of the harassment, an employer may raise an affirmative defense to liability that must be proved by a preponderance of the evidence. See Burlington Industries Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct 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. Id.; Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). This defense attempts to strike a careful balance. It holds employers liable for certain specific misuses of supervisory authority while encouraging all parties involved to take appropriate steps to avoid harm. See Faragher, 524 U.S. at 805-07. The district court reversed the jury‘s verdict on sexual harassment also on the basis of this affirmative defense, finding as a matter of law that the defendants satisfied their burden of showing that they exercised reasonable care to prevent and correct sexual harassment, and that Passananti unreasonably failed to take advantage of available preventative or corrective opportunities. We disagree.
As an initial matter, we face a confused record as to whether the defendants waived the affirmative defense and whether it was otherwise appropriate to instruct the jury on the defense.5 Although the defendants consistently denied the merits of Passananti‘s claims at every stage of the litigation, the only affirmative defense they raised in their answer was qualified immunity for defendant Sullivan. Less than five weeks before trial, the defendants tried to amend their answer to assert additional affirmative defenses, including the Faragher-Ellerth defense. The district court denied the late motion to amend (rightfully, in our opinion) on the grounds that the defense had failed to show that their untimely amendment was not the product of undue delay and that Passananti would not be unduly prejudiced by the amendment. Yet the parties jointly submitted agreed jury instructions that incorporated the affirmative defense, and the district court delivered the joint instruction containing the affirmative defense to the jury, contrary to its earlier ruling. Because Passananti cooperated in drafting the proposed instructions and did not object to the inclusion of the affirmative defense—waiving any argument she might have had regarding waiver—we proceed to a more troubling aspect of the defense, but one that
The Supreme Court has conditioned the availability of the Faragher-Ellerth defense on the absence of a tangible employment action. See Pennsylvania State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08; Huff v. Sheahan, 493 F.3d 893, 901 (7th Cir.2007) (trial court committed reversible error by instructing jury on employer‘s affirmative defense without also instructing jury to decide whether employer‘s denial of case leads to plaintiff and denial of plaintiff‘s transfer were tangible employment actions, which would have barred the affirmative defense), citing Jackson v. County of Racine, 474 F.3d 493, 501 (7th Cir.2007) (liability is “strict” when harassment by supervisor is accompanied by an official employment action such as discharge, demotion, or undesirable reassignment).
In this case, Passananti presented evidence that she was subject to tangible employment actions connected to Sullivan‘s harassment. She was transferred to a different department pending the investigation and was suspended for five days due to Sullivan‘s accusations that she had violated the “urine tamper” rule and had had sex with a DRC participant. The jury was not instructed to decide whether these employment actions were sufficiently tied to Sullivan‘s harassment so as to preclude the defendants’ affirmative defense. This lapse could easily amount to reversible error, see Huff, 493 F.3d at 904-05, but here again, Passananti waived the issue for appeal. She failed to object to the instruction, failed to raise the issue in response to the defendants’
The potential error turned out to be harmless. Even though the jury instructions seem to have erred in favor of the defense, the jury found that the defendants had not satisfied their burden. That finding is supported by sufficient evidence in the trial record. Accordingly, we reverse the district court‘s ruling on this issue.
The defendants built their Faragher-Ellerth defense on the Sheriff‘s General Order 3.7A and Passananti‘s familiarity with it. General Order 3.7A defined sexual harassment and outlined department procedures for handling complaints and investigations. The order also provided a formal complaint form for a complaining employee to give to her supervisor. (If the supervisor was the harasser, the complainant was to give the form to the next person in the chain of command.) The form was not detailed. It asked for basic information about the complainant and asked the complainant to “briefly summarize the circumstances giving rise to your complaint, including who, what, when, where, time of incident and witnesses (Use additional sheet if necessary).” The supervisor receiving the report was to submit the complaint to the Inspector General‘s office through internal affairs. The Inspector General‘s office was responsible for reviewing the claim and conducting an investigation. Passananti was very familiar with General Order 3.7A and the Sheriff‘s sexual harassment policy. As part of her job, in fact, she taught the policy to new recruits. Yet to complain about Sullivan‘s conduct, Passananti did not fill out the form attached to General Order 3.7A. Her failure to comply with the policy she trained others to follow was the centerpiece of the defense. The tactic, though, proved to be a double-edged sword.
The policy says that this is what‘s going to happen: You are going to write a complaint, ... an investigation is going to be opened, we are going to do an investigation, we are going to question people, we are going to be fair and open-minded, and we are going to look at all the facts and we are going to make a determination.... The practice says if you put it in writing and you make a complaint, you are going to be demoted, you are going to be punished, ... you‘re going to be in a lot of trouble.
Tr. Vol. 1 at 46-47.
Passananti backed up this testimony with details. In 2006, when she was discussing another employee‘s complaint of sexual harassment with Sullivan, he told her, “we can‘t have these allegations going on at Day Reporting” and that “he just wanted this to go away.” Tr. Vol. 1 at 43, 45. Regarding a second complaining employee, Sullivan told Passananti that the employee needed to “quit putting things on F‘g paper,” and to “quit putting documentation on paper and sending it to the [Inspector General].” Tr. Vol. 1 at 47, 124. The jury heard other evidence that supported Passananti‘s decision to use outside channels to complain. Jeanie Foster, a DRC investigator, confirmed Passananti‘s belief. She testified that she had followed the protocol for making an internal complaint of sexual harassment pursuant to General Order 3.7A, but the Sheriff‘s Department took no action as a result. Tr. Vol. 2A at 47 (Q: “When you employed the terms of the policy, was any action taken?” A: “No.“).
Instead of following the formal policy, Passananti testified, she sent a detailed letter to the Sheriff‘s outside counsel, who forwarded the complaint to the Inspector General‘s office, where any sexual harassment complaint was supposed to go. Passananti testified at trial that she wrote her letter to the lawyer, Gallagher, and did not complain internally using the official form because she “knew that if it stayed internally, that it would never have gotten anywhere, that ... there‘s no confidentiality. I felt that Mr. Gallagher would take my best interests to heart and open up an investigation or get it to the Sheriff so the Sheriff would open up an investigation as to what was going on in the department.” Tr. Vol. 1 at 40. She opened her ten-page letter, dated August 17, 2005, by stating that she was “extremely well versed” in sexual harassment matters, having previously served as an expert witness in a federal sexual harassment case on behalf of the Sheriff‘s Department. Generally, Passananti complained that she had:
... first hand knowledge that people are doing things that are not in the best interest of my Sheriff and I have been privy to enough back door meetings to know that I am now the target of their aggression. The number one problem that they have is that I did not do anything wrong and all they had to do is give me the respect they would have given a man and ask me what happened.
Her letter described the circumstances—the “who, what, when, where, time of inci-
Regarding Sullivan‘s language towards her, Passananti described two incidents in her letter. She first recounted that on August 5, 2005, at approximately 11:30 in the morning, Sullivan called Passananti to his office, and, with the door open and in front of a number of witnesses, he “began screaming at [Passananti].” Her letter continued:
He screamed “you are on dangerous ground again,” and I asked “what?”
He screamed “shut the Fuck up!” And began screaming that I let [Investigator] Acevedo get me in trouble again and I said “what are you talking about?”
He screamed “I said shut up—you Lying Bitch.”
I asked him if he wanted to know the whole story and he said he didn‘t want to hear shit from me and walked out of the office.
Later, Passananti and Sullivan spoke again. She was “crying hysterically” and Sullivan apologized. He apologized again before she left work that evening. In a second incident, Sullivan and Passananti were discussing an office administrative matter. Passananti asked him if she should ask for a memo from one of the inspectors. Sullivan responded, “No, you‘re a broad, all of these people bullshit you.”
Attorney Gallagher forwarded Passananti‘s letter to the Inspector General‘s office, so her informal written complaint landed in the same office that a formal complaint made pursuant to General Order 3.7A should have. Yet, contrary to the directives of General Order 3.7A, no investigation was ever opened. Passananti also brought another internal complaint. She complained orally to Carmalita Wagner, the executive director of the Sheriff‘s training academy. Tr. Vol. 1 at 37-38. Passananti told Wagner “everything that was going on.” Wagner told her that Passananti needed to “take one” for the Sheriff, which Passananti interpreted as meaning that she needed to “shut up and take it.”
In sum, the jury heard evidence that the Sheriff‘s Department had adopted an appropriate policy and complaint procedure, but that in reality the policy and procedure were ignored. The “mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.” Gentry, 238 F.3d at 847. The policy must provide “a meaningful process whereby an employee can express his or her concerns regarding an individual within a working environment.” Id. It is not enough that an anti-harassment policy ap-
At the end of the day, the critical question before the jury was whether the Sheriff‘s Department was put on notice of the misconduct, “not how the employer came to have that knowledge.” Cerros v. Steel Tech., Inc., 398 F.3d 944, 952 (7th Cir.2005) (“The relevant inquiry is ... whether the employee adequately alerted her employer to the harassment, ... not whether she followed the letter of the reporting procedures set out in the employer‘s harassment policy.“); see also Phelan v. Cook County, 463 F.3d 773, 786 (7th Cir.2006) (finding that even though plaintiff did not follow the letter of the harassment policy, the defendant could not reasonably claim that it did not have sufficient notice of harassment under negligence standard). General Order 3.7A was not the only way an employee could raise a complaint of sexual harassment in the Sheriff‘s Department. The defendants did not dispute that the Sheriff‘s Department learned of Passananti‘s complaint, which raised questions of gender discrimination and sexual harassment within the DRC. We do not need to decide here whether the jury could have found that the defendants had met their burden on the defense. The jury found that they had not, and that finding was supported by ample evidence. The district court erred by resolving both the question of sexual harassment and the affirmative defense in favor of defendants as a matter of law. The jury verdict on liability for the sexual harassment claim must be reinstated.
B. Termination Claim
Passananti also appeals the judgment as a matter of law on her termination claim. Here again, we construe the evidence presented at trial strictly in her favor. At trial, Passananti had to present either direct or circumstantial evidence showing that she was terminated because of her gender. See Runyon v. Applied Extrusion Technologies, Inc., 619 F.3d 735, 739 (7th Cir.2010), citing Greene v. Potter, 557 F.3d 765, 769 n. 1 (7th Cir.2009). Even under the stringent standard of review that applies to judgments as a matter of law, we agree with the district court that she failed to support this claim. No reasonable jury could have concluded that plaintiff‘s gender played a role in her March 2007 termination.6
Alexis Herrera was the chief financial officer for the Sheriff‘s Department. In 2007, she was assigned to prepare a budget that would reduce annual expenditures in the Department by about $5 million as part of a county-wide budget reduction, without requiring a reduction in the jail
When the first proposal was made public, however, there was an outcry. Hundreds of people appeared at public hearings to speak on behalf of the programs that were slated for elimination. Tr. Vol. 2B at 75. This pressure convinced Herrera‘s superiors to order her to come up with an amended proposal, one that made the needed cuts but retained funding for the community programs. Id. at 75-76. Herrera‘s revised budget proposed cuts to police officers, janitors, deputy sheriffs, and positions in the DRC—including Passananti‘s position. Id. at 76-79. Herrera‘s recommendation was ultimately approved by the Cook County Board, and Passananti received notice on March 3, 2007 that she was to be laid off.
There is simply no evidence that the budget decision was based on Passananti‘s gender. When the decision to eliminate her position was being made, Sullivan was no longer employed in the DRC. He had gone on medical leave in July 2006 and never returned to work. There is no link in the evidence between Sullivan‘s abusive treatment of Passananti and her later termination. Herrera testified that she was forbidden from talking with the departments about the proposed layoffs. She offered unrebutted testimony that she was not directed by anyone from the Sheriff‘s Department to eliminate Passananti‘s position, and she did not have figures about gender or race, or a list of employee names in front of her when she was making the recommendations. No evidence suggests that Herrera was aware that Passananti held one of the positions she was recommending for termination. See id. at 79.
Passananti argues that the jury was entitled to disbelieve Herrera‘s testimony, that she was singled out for termination, and that she was the only person whose job was eliminated in Herrera‘s budget proposal. According to plaintiff‘s theory, the other positions Herrera cut were actually unstaffed and the budget cuts were a smokescreen to cover up the true motivation of the Sheriff‘s Department to cut the budget in 2007—Passananti‘s gender. This is an attempt to substitute speculation for evidence. Sullivan was gone, and Passananti does not claim or offer evidence that anyone else in the department harbored any gender-based animus toward her. Herrera testified without contradiction that she made the decision to cut Passananti‘s position and did so unilaterally, without input from anyone else in the Sheriff‘s Department. Passananti attempts to argue that the other positions that were eliminated were not actually staffed, but the testimony she cites does not support her contention. See Tr. Vol. 2B at 88.
Passananti also relies on “Exhibit 2” to support her theory that Herrera‘s testimony was false and that the 2007 budget cuts were actually a cover-up for illegal gender discrimination. Passananti argues that Exhibit 2 showed that the number of full-time equivalent positions in the Sheriff‘s Department as a whole rose from 6,856.6 to 6,874.3 in 2007, and that overall appropriations also rose from $337,998,421 to $338,129,452. See Pl. Br. 19-20, citing App. Ex. H.
Given the muddled state of the record, it is not at all clear that Exhibit 2 was even
III. Damages
Because we reinstate the verdict in favor of Passananti on her sexual harassment claim, but affirm the district judge‘s decision for defendants on her termination claim, we must address the jury‘s damage awards. The jury found in favor of Passananti and against all defendants on each of her claims, awarding her $4 million in compensatory damages against the Cook County Sheriff and $70,000 in compensatory damages and $30,000 in punitive damages against Sullivan. The defendants raised no challenge to the damage award in post-trial briefing, aiming only at the issue of liability, and neither party has argued on appeal that the damages award should be remanded to the district court. Because of the inexact wording of the verdict form and some confusion in the district court about lining up the right defendant with the right legal theory, we might ordinarily have to order a new trial limited to the issue of damages for the sexual harassment claim. As it happens, though, the jury verdict here allows us to do a bit of reverse engineering to avoid the need for a new trial and leave in place as much as possible of the jury‘s work.
Passananti was claiming two distinct injuries: the injury from the sexual harassment she suffered while she was still working, and the injury she suffered from her later (and unrelated) termination. The best course in a case claiming more than one distinct injury from different conduct is usually to ask the jury to determine liability first and then to determine the amount, if any, that should be awarded for each distinct injury. Finally, the jury should be asked any needed questions about allocating responsibility among multiple defendants. See generally Thomas v. Cook County Sheriff‘s Dep‘t, 604 F.3d 293, 312-13 (7th Cir.2010); id. at 315-16 (Sykes, J., dissenting from denial of rehearing en banc). That did not happen in this case, but the failure to do so was harmless in the end. All the evidence that Passananti offered on her sexual harassment claim points to Sullivan as the perpetrator. She did not offer any evidence suggesting that any other individual in the Sheriff‘s Department was harassing her. Having failed to prevail on its affirmative
The verdict as to liability for sexual harassment stands, but Passananti‘s sexual harassment claim was treated, without objection, as a
Conclusion
To sum up, we reverse the district court‘s grant of the defendants’ motion for judgment as a matter of law and reinstate the jury verdict in favor of Passananti on her sexual harassment claim. We affirm the district court‘s grant of the defendants’ motion for judgment as a matter of law on Passananti‘s termination claim. We remand with instructions to enter judgment in favor of Passananti in the amount of $70,000 in compensatory damages against the Cook County Sheriff‘s Department. The judgment is affirmed to the extent it was in favor of Sullivan in his individual capacity. On remand, Passananti may seek a reasonable attorney fee and costs from the Sheriff‘s Department.
DAVID F. HAMILTON
UNITED STATES CIRCUIT JUDGE