Opinion
Cause No. NA00-0133-C-H/G, NA 00-133-C H/K
December 14, 2001
ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
After a physical confrontation at work between husband and wife, the employer fired the wife who had struck her husband. Invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., plaintiff Leysa Davis has sued Visteon Systems L.L.C. and Local 907 of the International Union of Electronic Workers. Plaintiff claims that Visteon is liable for alleged sexual harassment by co-worker Dusty Davis — who was also her husband and the father of her two children. Plaintiff also alleges that Visteon discriminated against her because of her sex when it fired her. In addition, she claims that the union subjected her to sex discrimination by refusing to pursue her grievance to arbitration and by failing to assist her in obtaining "stress management help" instead of being fired.
The complaint names the defendant employer as "Visteon Ford Electronics, Company." According to defendant Visteon, its proper corporation name is Visteon Systems L.L.C. Prior to 2000, Visteon Systems L.L.C. was part of the Ford Motor Company. In 2000, Visteon split off from Ford and is now a separate legal entity. The court has modified the caption to name Visteon correctly.
Both defendants have moved for summary judgment on all claims. Viewing the evidence in a light most favorable to plaintiff, her claims fail against both defendants. Plaintiff's claims against the union are time-barred. On the claim arising from plaintiff's discharge, plaintiff has not submitted admissible evidence that Visteon treated similarly situated male employees more favorably in its disciplinary process. Most of plaintiff's hostile environment claims are barred by the statutes of limitations, and no reasonable jury could conclude that Visteon is liable for the alleged hostile environment sexual harassment. As a result, defendants' motions for summary judgment are granted as to all claims, and this action is dismissed with prejudice.
On October 11, 2001, the court had referred the pending motions to the Magistrate Judge for a report and recommendation, but that reference is hereby vacated.
Standard for Summary Judgment
Summary judgment is appropriate if the pleadings, affidavits, and other supporting materials leave no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), Prague v. Central States, Southeast and Southwest Areas Pension Fund, 269 F.3d 811 (7th Cir. 2001). To determine whether any material fact is genuinely disputed, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. See Fed.R.Civ.P. 56(c). In ruling on a summary judgment motion, the court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Oest v. Illinois Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).The burden is on the moving party to show that no genuine issues of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S. at 256. If the moving party presents a prima facie showing that it is entitled to judgment as a matter of law, the non-moving party may not rest upon the mere allegations or denials in her pleadings. She must come forward with admissible evidence of specific facts showing a genuine issue for trial. Celotex, 477 U.S. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to such cases. See, e.g., Alexander v. Wisconsin Dep't of Health and Family Services, 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
The record the court must consider in this case is shaped by plaintiff's failure to comply with Local Rule 56.1. Local Rule 56.1(b) states that the non-moving party must file and serve:
a Response to Statement of Material Facts (either as a section of the brief or as a separate document) in compliance with L.R. 56.1(f) that contains a response to each material factual assertion in the moving party's Statement of Material Facts, and if applicable, a separate Statement of Additional Material Facts that warrant denial of summary judgment.
In this case, plaintiff failed to respond to any of Visteon's 86 Statements of Material Fact. Plaintiff also failed to submit any response to the union's summary judgment motion, including its additional 43 Statements of Material Fact.
The essential purpose of the rule is to require each party to identify the specific facts and supporting evidence upon which she relies. Local Rule 56.1(k) gives the court discretion to overlook failures to comply with the rule's elaborate formal requirements. In this case, however, plaintiff's complete failure to comply with the local rule governing the summary judgment process is not a "harmless technicality." See Waldridge v. American Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994). The court is not required to conduct an independent and unguided search of the record to unearth evidentiary support for a party's position — which is what would be required if the court were to overlook plaintiff's complete failure to comply with Local Rule 56.1. The court declines to conduct such an unguided search. See Waldridge, 24 F.3d at 922. A party who does not properly contest the moving party's statement of facts is considered to have admitted those facts, to the extent they are properly supported by the record. See Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir. 1995).
As a result of plaintiff's failure to comply with Local Rule 56.1, the vast majority of the facts properly submitted by Visteon and the union went unopposed. Despite this oversight, the court has considered the thirteen "Statement of Facts" and additional facts set forth in plaintiff's response brief, as well as the admissible documents she submitted to the court, though not the inadmissible evidence. The court deems admitted any facts submitted by the defendants which plaintiff failed to rebut in her response brief.
Undisputed Facts
I. Background
The evidence viewed in a light most favorable to plaintiff reveals the following. On January 31, 1995, plaintiff Leysa Davis began her employment with Visteon's automotive parts plant in Bedford, Indiana. L. Davis Dep. at 14-15. Plaintiff helped her husband Dusty Davis get a job at the plant in June 1996. Both were hourly employees and members of the International Union of Electronic Workers, Local 907, which represents production and maintenance workers at the Bedford plant. Plaintiff and her husband remained married during the entire time plaintiff worked at the plant. See id. at 74-75, 79.
From all accounts, the marriage was turbulent. Until their divorce on November 23, 1998, the relationship involved numerous separations and reconciliations, including fights in the workplace. L. Davis Dep. at 31-35, 74-75, 93-94, 167. Specifically, in November 1997, plaintiff and her husband engaged in a "fight" in which Dusty Davis cursed Leysa and followed her down an aisle with his arms behind his back and his chest out, causing both of them to fall to the ground. Id. at 80-82. After this incident was reported to management, Dusty Davis was given a "Disciplinary Action Report." Id. at 82, Ex. 26. Although disputed by Visteon, plaintiff contends that the harassment by her husband continued throughout her employment, and that Visteon management failed to take corrective action after the harassment was reported. See id. at 88.
On April 2, 1998, plaintiff arrived at work upset because of an encounter earlier that morning with Dusty Davis' girlfriend. Id. at 186-88, 190. (At the time, plaintiff and Dusty Davis were still married but were living with different people.) The same day, plaintiff was given a new work assignment that she found more difficult. Id. at 189-90. That morning, Dusty Davis had been laughing and pointing his finger at her. Id. at 189. Within two hours after her shift started, plaintiff went to the restroom located in her husband's work area. As she was returning to her work area, Dusty Davis stood in her path, laughed at her, and was saying things to her. Id. at 190-91.
Plaintiff testified that she cannot recall what Dusty Davis was saying to her as she walked by. L. Davis Dep. at 190-91. In the statement of facts in her brief, plaintiff asserted that Dusty Davis called her a f***ing b****, relying on the deposition testimony of Neysa Evans, her mother. The court sustains Visteon's hearsay objection to this assertion. Evans testified that she did not hear Dusty Davis call her daughter the name. Evans Dep. at 43. Instead, she heard it from "more than one person," including Dusty Davis himself. Id. These out of court statements are inadmissible because they are offered for the truth of the matter asserted, and they do not fall within any exception to the hearsay rule.
Plaintiff responded by calling Dusty Davis a "deadbeat dad." She also struck him with a water bottle (it is not clear whether she struck him on the arm, shoulder, neck, or head), and then struck him on his back with clenched fists. See id. at 191-93. Dusty Davis did not respond in any way to the physical attack. Austin Aff. ¶ 4; D. Davis Aff. ¶ 11.
For assaulting another employee, Visteon's plant rules provide for discipline up to and including discharge. Ex. 30. Following the incident, Doak Henry, a senior labor representative from Visteon, conducted an investigation. Henry held a disciplinary meeting in which plaintiff was represented by union steward Sandra Post and union local vice president B.J. Sanders. Post Dec. ¶ 4. During the meeting, plaintiff admitted hitting her husband with a water bottle and striking him with her fists, Henry Aff. ¶ 12, which she also admitted in her deposition. L. Davis Dep. at 191-93.
The following day, April 3rd, plaintiff was summoned to another meeting with Henry, human resource manager Ted Williamson, and a representative from human resources, Shelly Lizyness. Plaintiff appeared at the meeting with union representation. During the meeting, plaintiff was informed of her termination. Henry Aff. ¶ 18.
After the meeting, the union filed a grievance protesting plaintiff's termination. L. Davis Dep. at 299-300. The union pursued plaintiff's grievance up to the fourth step of the process, claiming that the discipline she received was too harsh. Id. at 303, 306. When Visteon issued its final decision denying plaintiff's grievance, the union's executive board decided whether it should be taken to arbitration. The union determined that plaintiff would be unsuccessful in arbitration, and it decided not to pursue her case further. D. Baker Dec. ¶ 10. Other facts are noted below, applying the standard that applies to a motion for summary judgment.
Discussion
I. Timeliness of the Complaint
Under Title VII, a plaintiff must file a complaint in court within 90 days of receiving notice of the right to sue from the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5 (f)(1); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849-50 (7th Cir. 2001). This 90-day requirement is not a jurisdictional requirement but is akin to a statute of limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). The time limit is not flexible, and a one day delay can be fatal. Jones v. Madison Service Corp., 744 F.2d 1309 (7th Cir. 1984) (action time-barred when filed 92 days after notice received); Coulibaly v. T.G.I. Friday's, Inc., 623 F. Supp. 860, 863 (S.D.Ind. 1985) (action time-barred when filed 97 days after notice received).
In cases of doubt, the Seventh Circuit applies a presumption that the notice was received five days after it was mailed. See, e.g., Washington v. Foresman, 148 F.R.D. 241, 244 (N.D.Ind. 1993) (applying the five-day presumption in Title VII case), citing Loyd v. Sullivan, 882 F.2d 218 (7th Cir. 1989) (five-day presumption in a Social Security case).
The 90-day filing requirement is also subject to equitable tolling. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Equitable tolling is an exception to the general rule. It is reserved for "extreme circumstances in which the claimant has made a good faith error, such as bringing a timely complaint in the wrong court, or has been prevented in some extraordinary way from filing her complaint on time, such as inadequate notice to a plaintiff." See Davis v. Browner, 113 F. Supp.2d 1223, 1227 (N.D.Ill. 2000), citing Irwin, 498 U.S. at 95-96; see also Jones, 744 F.2d at 1314. The doctrine does not apply to instances of "excusable neglect." Irwin, 498 U.S. at 96.
As a result of plaintiff's failure to contest defendants' statements of material facts, the following facts related to the filing of plaintiff's EEOC charge are undisputed. Plaintiff filed her charge of discrimination against Visteon and the union on or about January 5, 1999. Ex. 32. The right-to-sue notice on plaintiff's claims against the union was issued on December 30, 1999, and was mailed to her then-current home address, an apartment in Orleans, Indiana. Union Ex. 50; L. Davis Dep. at 317-18. The right-to-sue notice on her claims against Visteon was issued on January 12, 2000 and was mailed to her father's residence in Orleans, at the address the plaintiff had listed on her charge. Cook Aff., ¶ 5, Ex. C; L. Davis Dep. at 269-71; Ex. 33. Plaintiff filed this action on June 7, 2000, almost five months after the EEOC issued the right-to-sue notices. Applying the five-day presumption, plaintiff should have received notice of her right to sue the union no later than January 4, 2000, and the notice of the right to sue Visteon no later than January 17, 2000.
Defendant Visteon states plaintiff filed her charge of discrimination with the EEOC on January 7, 1999. However, after reviewing plaintiff's Deposition Exhibit 32, it appears that she filed it two days earlier, on January 5, 1999.
In support of equitable tolling, plaintiff's counsel submitted an affidavit stating that he did not receive the notices of right to sue until May 1, 2000. Sauvey Aff. ¶ 6. In addition, plaintiff testified that she notified the EEOC of her change of address, although she also said she was over at her father's house "all the time" after she moved to a nearby apartment. L. Davis Dep. at 270-71.
Under the approach adopted in St. Louis v. Alverno College, 744 F.2d 1314, 1317 (7th Cir. 1984), a plaintiff must take reasonable steps to ensure the actual receipt of the right-to-sue letter. If she does not, it will be deemed received when it arrives at the most recent address provided to the EEOC.
Viewing the facts in the light most favorable to plaintiff and drawing all inferences in her favor (as the court must), equitable tolling is justified here only with respect to plaintiff's claims against Visteon. Plaintiff's testimony shows that she took reasonable steps and demonstrated diligence by notifying the EEOC of her change of address. L. Davis Dep. at 270-71. However, plaintiff admits that the EEOC sent the notice of her right to sue the union to her correct address and that she may have received the notice. Id. at 317-18. Under these circumstances, there is no reason to excuse the plaintiff from the five-day presumption. Summary judgment is appropriate on plaintiff's claim against the union because it was not timely filed.
The claim against the union would fail on the merits in any event. The union's unopposed motion for summary judgment shows that plaintiff has no direct evidence of sex discrimination by the union, and that she has no evidence that the union treated any similarly situated men better than it treated her. The undisputed evidence shows that the union pursued her grievance and then, before pursuing arbitration, did research to determine whether the company had been inconsistent with its discipline in cases of one employee assaulting another. The union found no such case in the last 20 years and concluded quite reasonably that it would probably lose in arbitration.
The situation with Visteon is different because the EEOC sent the right-to-sue letter to her old address. Visteon has not drawn the court's attention to anything in the record suggesting that plaintiff received the notice of right to sue Visteon until May 1st, when her attorney received it in the mail. Upon counsel's receipt of the right-to-sue letter, plaintiff filed her complaint on June 7, 2000, well within the statutory 90 days. Therefore, in this limited circumstance, the court finds that equitable tolling is proper. See, e.g., Smith v. Chase Manhattan Bank, No. 97 Civ. 4507, 1998 WL 642930, *4 (S.D.N.Y. Sept. 18, 1998) (court found that equitable tolling was proper where plaintiff presented an affidavit stating that the EEOC sent his right-to-sue letter to the wrong address, preventing him from filing his original action within the 90 day period).
II. Plaintiff's Discharge Claim
Plaintiff claims that Visteon discriminated against her on the basis of her sex when it fired her. Title VII makes it unlawful for an employer to discharge or otherwise discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment because of her sex. 42 U.S.C. § 2000e-2(a)(1).
Plaintiff does not have direct evidence of sex discrimination, so she relies on the indirect burden-shifting analysis employed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and its numerous progeny. First, the plaintiff must come forward with evidence that: (1) she belongs to a protected class; (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) the employer treated similarly-situated employees outside of her protected class more favorably. Simpson v. Borg-Warner Auto, Inc., 196 F.3d 873, 876 (7th Cir. 1999).
If a plaintiff makes this showing, a presumption arises that discrimination occurred, and the employer must come forward with a legitimate non-discriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802; Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir. 1994). At this stage, the employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981).
Once the defendant meets this burden of production, the plaintiff can avoid summary judgment by coming forward with evidence that would allow a reasonable jury to find that the reason offered by the defendant is merely a pretext for discrimination. Burdine, 450 U.S. at 253; Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000); Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 348 (7th Cir. 1997).
Plaintiff can show that she is a member of a protected class (female), and she suffered an adverse employment action (termination of her employment). The decisive issue is whether similarly situated male employees received favorable treatment.
Visteon also argues that plaintiff failed to meet its legitimate expectations because she was fired for violating the plant rule against assaulting another person in the workplace. Where a plaintiff admits wrongdoing but argues that an employer has disciplined her more harshly than other employees because of her sex or race or other protected characteristic, however, the case cannot be decided based solely on the theory that the admitted violation shows the employee was not meeting legitimate expectations. See, e.g., Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001) (vacating summary judgment for employer in case alleging discriminatory discipline); Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999). Otherwise an insidious form of discrimination would be insulated from liability. See generally Mozee v. American Commercial Marine Service Co., 940 F.2d 1036 (7th Cir. 1991) (addressing plaintiff class claim of racial discrimination in discipline).
Plaintiff claims she was discriminated against based on her sex in the application of Visteon's "zero tolerance" policy on harassment in the work place. L. Davis Dep. at 26-27. In an effort to demonstrate that she received less favorable treatment than male co-workers, plaintiff submitted Exhibits 2 through 17, statements from individuals whose relationships to plaintiff and defendant are unknown, and cites the testimony of Doak Henry from Visteon's human resources office, and Neysa Evans, who is plaintiff's mother and also works at Visteon.
Defendant objects to consideration of plaintiff's Exhibits 2 through 17 because they lack proper foundation. The court agrees. See, e.g., Gore v. U.S. Postal Service, No. IP99-1353, 2000 WL 33281134, *8 (S.D.Ind. Nov. 6, 2000) (McKinney, J.) ("As this Court has previously explained, for a document to be considered in ruling on a motion for summary judgment, the document `must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.'"), quoting Powers v. Runyon, 974 F. Supp. 693, 696-97 (S.D.Ind. 1997) (Tinder, J.). Plaintiff failed to authenticate these statements properly by providing affidavits or testimony from their respective authors, which bars their consideration at this stage.
Further, plaintiff's Statement of Material Fact No. 12, citing the testimony of Henry, is misleading because the citations to the record do not support the asserted fact. When Henry was questioned about other alleged "fights," he testified that he had no knowledge or no direct knowledge about the incidents. Rather, he testified only that he had heard some "hearsay" about certain fighting incidents. Henry Dep. at 43-45, 47-48. The citation to the testimony of Evans is equally misleading. At the beginning of her testimony about alleged "fights," she said: "There are things that I did not witness, but I've heard." Evans Dep. at 72-73.
Plaintiff may not rely on this hearsay evidence. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) ("And hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial."); see also Minor v. Ivy Tech State College, 174 F.3d 855, 856-57 (7th Cir. 1999) (hearsay is unusable in summary judgment proceedings without a showing that it could readily be replaced at trial by admissible evidence).
Plaintiff fails to set forth admissible evidence that similarly situated males were not terminated for engaging in conduct similar to hers. As a result, plaintiff cannot establish a prima face case of sex discrimination, and her sex discrimination claim against Visteon fails as a matter of law.
For essentially the same reasons, plaintiff also cannot show that Visteon's proffered reason for firing her was a pretext. Despite assertions in her brief and unsupported citations to the record, plaintiff sets forth no evidence that male employees engaged in fights but were not terminated as a result. On this record, a reasonable jury could not find that Visteon terminated plaintiff's employment as a pretext for discrimination based on her sex. See Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000) ("Pretext is more than a mistake on the part of the employer; pretext means a lie, specifically a phony reason for some action.").
III. Plaintiff's Sexual Harassment Claim
Plaintiff also claims that she was subjected to sexual harassment at work by Dusty Davis, and that Visteon should be held liable for that harassment. Sexual harassment is actionable under Title VII as a form of sex discrimination if it is sufficiently severe or pervasive to alter the conditions of the victim's employment and to create an abusive working environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).
At the outset, plaintiff's sexual harassment claim is sharply limited by her long delay in filing her EEOC charge against Visteon. In a deferral state such as Indiana, a Title VII charge must be filed within 300 days after the act that forms the basis of the complaint. 42 U.S.C. § 2000e-5(e)(1); Foster v. Arthur Andersen, L.L.P., 168 F.3d 1029, 1035 n. 9 (7th Cir. 1999). Plaintiff Davis filed her EEOC charge on or about January 5, 1999, nearly nine months after she was fired, so that only harassment occurring in the last month or so of her employment fell within the actionable period of 300 days.
Under a continuing violation theory, a plaintiff may recover for a time-barred act by linking it with an act that occurred within the limitations period. Place v. Abbott Laboratories, 215 F.3d 803, 807 (7th Cir. 2000); Miller, 203 F.3d at 1003. Relying on the Eighth Circuit cases of Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir. 1996), and Van Steenburgh v. The Rival Co., 171 F.3d 1155, 1159 (8th Cir. 1999), plaintiff attempts to invoke the continuing violation theory to establish liability for events that occurred outside the 300 day period. Plaintiff claims there was a "continuing pattern of harassment" that began in 1997. Pl. Br. at 6.
In the Seventh Circuit the continuing violation theory applies only to cases in which the conduct at issue can be recognized as harassment "only in the light of events that occurred later, within the period of limitations." Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1165-67 (7th Cir. 1996). The doctrine does not apply where the victim is subjected to a long, continuous series of harassing acts if it was apparent to her long before she ultimately sued that she was the victim of sexual harassment. Id. at 1167 ("The most difficult case arises when a long-continued series of harassing acts definitely are a series, a pattern, and not merely a set of discrete events, yet it was evident long before the plaintiff finally sued that she was the victim of actionable harassment. It seems to us that in such a case, while she can still sue provided that the last act of harassment occurred within the statute of limitations, she cannot reach back and base her suit also on conduct that occurred outside the statute of limitations; for she had no excuse for waiting that long.").
The court need not decide whether the incident that gave rise to plaintiff's discharge satisfies the requirement of actionable harassing conduct within the limitations period. Instead, the plaintiff's continuing violation theory fails because her own allegations demonstrate that she was on notice of what she perceived as harassing conduct for some time. Plaintiff testified that starting in 1997, Dusty Davis harassed her on a daily basis during the off-and-on periods when they were not living together. L. Davis Dep. at 71-82, 102, 113-14. At the very least, she testified that she was harassed in November 1997, when Dusty Davis cursed her and pushed her down at work. Id. at 81-85 (the incident for which Dusty Davis was disciplined). She did not file her charge of discrimination with the EEOC until January 5, 1999, almost nine months after she was fired. The continuing violation doctrine therefore does not apply here. See, e.g., Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 344-45 (7th Cir. 1999) (continuing violation theory did not apply to plaintiff's sexual harassment claim; she believed, as shown by her complaints to management, she was a victim of harassment long before she filed her discrimination charge). Plaintiff does not allege that anything occurred during her last few weeks of employment that suddenly made her view Dusty Davis's past conduct as sexual harassment. This is not a case where plaintiff alleges that the harassing conduct became more serious over time.
Therefore, for purposes of establishing liability, the court will consider acts subsequent to March 9, 1998, 300 days prior to January 5, 1999, the date plaintiff filed her charges of discrimination with the EEOC.
To establish a prima facie case of sex discrimination based on a hostile environment, the plaintiff must show that: (1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on sex; (3) the sexual harassment was severe or pervasive enough to alter the conditions of the plaintiff's employment and to create an abusive work environment; and (4) there is a basis for employer liability. See Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998); see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993) (hostile work environment need not seriously affect plaintiff's psychological well-being to be actionable).
The plaintiff must show that she experienced harassment based on her gender that was so hostile, intimidating, or degrading that it adversely affected her working conditions. Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997). In determining whether the conduct created a hostile environment, courts must consider several factors, including the conduct's frequency, severity, whether it was physically threatening or humiliating, or just a mere offensive utterance, and whether it created an abusive working environment. See Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 668 (7th Cir. 2001); Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999).
Additionally, to be actionable, the behavior must be both objectively and subjectively offensive: a reasonable person would find it hostile or offensive, and the individual employee must have found it offensive. Faragher, 524 U.S. at 787; Dey v. Colt Const. and Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994). Sexual assaults, other physical contacts for which there is no consent, uninvited sexual solicitations, intimidating words or acts, obscene language or gestures, and pornographic pictures can all meet the objective standard. Hostetler v. Quality Dining Inc., 218 F.3d 798, 807 (7th Cir. 2000). However, as the Seventh Circuit has repeatedly stated, isolated or occasional inappropriate comments or vulgar remarks, or a workplace that is merely unpleasant are insufficient to establish an objectively offensive environment. See, e.g., Minor, 174 F.3d at 858 ("[I]t is not enough that a supervisor or coworker fails to treat a female employee with sensitivity, tact, and delicacy, uses coarse language, or is a boor.").
Assuming a plaintiff can prove that a hostile or offensive environment existed, there must be a basis for employer liability, which depends on whether the harasser is a supervisor or a co-worker. Parkins, 163 F.3d at 1032. To establish employer liability where the harasser is a co-worker, as in this case, plaintiff must show that the employer was negligent in either discovering or remedying the harassment. Mason v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000). The employer has a legal duty to take reasonable steps to rectify sexual harassment by a co-worker. Parkins, 163 F.3d at 1032. The employer, however, is required to remedy harassment only if it had knowledge or notice of the harassment. Id. at 1035.
Visteon claims that plaintiff fails to meet all four prongs of the prima facie case. Focusing on the relevant time period to establish liability (events after March 9, 1998), it is far from clear that plaintiff could raise a fact issue on whether there was harassment so severe or pervasive as to constitute a hostile work environment. In addition, the "because of sex" element raises challenging questions in this case because the plaintiff's intimate but difficult personal relationship with Dusty Davis gives rise to a number of possible motivations for the allegedly harassing conduct. But the court does not decide this case on those grounds.
The court must point out, however, that arguing that Court of Appeals decisions show that their authors are "living an isolated and unrealistic existence," see Pl. Br. at 9, is not a promising approach to advocacy, at least before a district court in this circuit. See also id. at 11 ("Plaintiff's counsel would be the first to admit that the justices of the Seventh Circuit seem to find no amount of behavior that a reasonable person would find offensive to be illegal.").
Plaintiff's sexual harassment claim fails as a matter of law because she has not come forward with evidence sufficient to hold Visteon liable for failing to take remedial action to prevent or remedy the alleged harassment. Plaintiff has offered no evidence from the actionable period (or even before) that should have put Visteon on notice that Dusty Davis allegedly was harassing plaintiff in violation of Title VII.
In cases involving co-worker harassment, employers can be held responsible only when the employer has been "negligent either in discovering or remedying the harassment." Perry, 126 F.3d at 1013. Conversely, the employer's legal duty will be discharged if it takes reasonable steps to discover and remedy any harassment. Parkins, 163 F.3d at 1032.
The plaintiff has made vague allegations about complaining about Dusty Davis's conduct to Visteon. She testified:
Every time I would — he would be over there and it would upset me, I would be crying and stuff, we would go to Darren [Kimmel, plaintiff's supervisor]. And I don't know, I can't tell you the date, I can't tell you nothing. I don't know the time, all I know is — I mean it was just happening really frequently, I mean.
L. Davis Dep. at 87. She also stated her shop steward would sometimes see her crying and go get her supervisor. Id. at 88. Regarding specifics, plaintiff testified that, at some unspecified time, she told her supervisor that Dusty Davis screamed and cursed her, discussed his unpaid child support, and stared and winked at her. Id. at 89. Plaintiff believes she talked to her supervisor once before the November 1997 incident about Dusty Davis "hollering" and "cussing" at her and "bugging" her to the point that she would cry. Id. at 96. Plaintiff testified that she "would say" "he's harassing me and stuff like that." Id. at 98. She does not know if she ever told a supervisor that Dusty Davis "pinched [her] butt," as she alleges. Id. at 110. She believes that supervisors knew that Dusty Davis came into her work area often. Id. Plaintiff recalls that when she spoke to her supervisor about Dusty Davis, she would tell him that she did not want Dusty to be fired. Id. at 89.
Plaintiff's mother, Neysa Evans, also complained about Dusty Davis's conduct related to the November 1997 incident. Evans Dep. at 97. In addition, she sometimes would ask a supervisor why Dusty Davis would be assigned to a particular area. Id. at 99.
Even viewing all of this evidence in the light reasonably most favorable to plaintiff, plaintiff did not put Visteon on notice of sexual harassment. The company promptly responded to the most specific complaint about Dusty Davis by giving him a warning in November 1997. Ex. 26. Plaintiff cannot point to a specific complaint or incident after that date that would have put Visteon on notice that Dusty Davis allegedly was engaging in sexually harassing behavior towards plaintiff. Plaintiff's allegations that Dusty Davis was "bugging" her and coming into her work area were not serious enough to trigger Visteon's duties under Title VII. While her allegations that he yelled and cursed at her and made her cry go a little further toward notice, they still were not sufficient to put Visteon on notice of alleged sexual harassment, especially in light of the rocky marital relationship between plaintiff and Dusty Davis. Plaintiff has not come forward with evidence that tends to show that Visteon was aware that plaintiff believed that she was experiencing an abusive work environment rather than the day-to-day workplace fall-out from a failing marriage. Although the plaintiff was not required to tell Visteon that she was complaining about "sexual harassment," Visteon was not required to act without notice of conduct prohibited by Title VII. See Parkins, 163 F.3d at 1035 (employer is required to rectify harassment only if it has knowledge or notice).
Assuming the court could consider all of plaintiff's complaints to management, her claims still fail because they did not place Visteon on sufficient notice that her complaints were about sexual harassment, inhibiting management's ability to take corrective action. Visteon is entitled to summary judgment on the sexual harassment claim.
Conclusion
Plaintiff fails to create a genuine issue of material fact as to any of her claims against Visteon and the union. Defendants' motions for summary judgment are granted as to all claims, and this action is dismissed with prejudice. Final judgment will be entered immediately.
So ordered.