Opinion
Cause No. IP00-0182-C-B/S.
jULY 12, 2001
David J Colman, Attorney at Law, Bloomington, IN., For Plaintiffs.
Daniel C Emerson, Bose McKinney Evans, Indianapolis, IN., For Defendants.
ENTRY GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs, Paulette Flynn ("Flynn"), Amy Edmundson ("Edmundson"), Shelley Turpin ("Turpin") and Steven Floyd ("Floyd"), have alleged in their complaint that Defendants, AerChem, Inc. ("AerChem"), and its subsidiaries, as well as Michael Jeffers, Kevin Jeffers, and Maxine Jeffers, individually and in their capacities as sole owners of AerChem and its subsidiaries, created a hostile work environment for plaintiffs Flynn and Edmundson, made actionable under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and engaged in actions that constituted battery against Flynn and Edmundson and assault and intentional infliction of emotional distress on all four plaintiffs. Flynn's claims were previously severed and stayed to permit their resolution on arbitration, leaving the claims of the other three plaintiffs to continue in this forum. Defendants now move for partial summary judgment on the claims of Edmundson and Turpin, pursuant to Federal Rule of Civil Procedure 56. For the reasons explicated below, Defendants' motion is GRANTED.
The Complaint is confusing as to Floyd's claims against Defendants. Although the allegations contained in the body of the complaint reference his rights, the prayers for relief neglect to include him in any way. Since his claims are not subject to this motion, we will assume that he has made a claim for both assault and intentional infliction of emotional distress.
Although our normal practice is to lay out the facts involving all plaintiffs and their claims at the outset, we diverge from this usual course of action here for good reason. Having severed Flynn's claims, the only claim remaining over which we exercise original (federal question) jurisdiction is the sexual harassment claim of Edmundson, actionable under Title VII. The complaint, however, contends that jurisdiction is proper "pursuant to 28 U.S.C. § 1332, and the principles of supplemental jurisdiction." It is readily apparent that plaintiffs did not intend to invoke § 1332 (diversity jurisdiction), but rather § 1331 (federal question jurisdiction) as the jurisdictional basis for the Title VII claims and § 1367 (supplemental jurisdiction) as the basis for the remaining claims. Accordingly, we begin our analysis with an examination of the law and facts relevant to Edmundson's Title VII claim and, after reaching a conclusion as to that claim's legal merits, we will turn to the remaining state-law claims, if necessary.
Title VII claims invoke federal question jurisdiction and, in any event, the complaint alleges that all of the plaintiffs and AerChem are Indiana citizens, making diversity jurisdiction unavailable in resolving this controversy.
Summary Judgment Standards
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
With a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" to cite evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. However, mere "[c]onclusory allegations by the party opposing the motion cannot defeat the motion."Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 931 (7th Cir. 1995). "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in [his] favor on a material question, then the court must enter summary judgment against [him]."Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52). Evidence that is inadmissible at trial, such as inadmissible hearsay testimony, is unusable at summary judgment to the same extent it is inadmissible at trial and we are not permitted to consider such evidence to support or defeat this motion. Minor v. Ivy Tech State Coll., 174 F.3d 855, 856 (7th Cir. 1999); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997); Collier v. Budd Co., 66 F.3d at 886, 892 n. 8 (7th Cir. 1995); cf. Fed.R.Evid. 801, 802.
In considering a motion for summary judgment, a court must draw all reasonable inferences in a light most favorable to the non-movant.Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). Thus, if genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate.Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary judgment is not only appropriate, but also required. Celotex, 477 U.S. at 322;Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989).
Edmundson's Title VII Claim for Sexual Harassment A. Factual Background 1. The Parties
Defendant, AerChem, is an Indiana corporation; Co-Defendants, Michael Jeffers and Kevin Jeffers, who are brothers, are its president and vice-president, respectively. Defs.' Br. in Supp. of Mot. for Partial Summ. J. ("Defs.' Br."), Statement of Material Facts ("Defs.' Facts") ¶¶ 1, 2. Defendants contend that the two brothers share complete ownership of the company, relying on the declaration/affidavit of Kevin; Plaintiffs assert that Maxine Jeffers was a "silent partner" but an active participant in the operations of AerChem. Id. ¶ 2; Pls.' Am. Statement of Material Facts ("Pls.' Facts") ¶ 2.
In light of the brothers' alleged complete ownership of AerChem, the Defendants contend that Maxine Jeffers, their mother, was not at any time relevant to this litigation an officer, director or employee of AerChem. As explained below, Ms. Jeffers' role with AerChem is not relevant to Edmundson's Title VII claim, so we need not address or otherwise resolve this dispute at this time.
Plaintiff Amy Edmundson was employed by AerChem on two separate occasions: first, as a receptionist for eight months, from February 12, 1997, through October 8, 1997, and later in the company's freight department from April 7, 1998, until she took a maternity leave on January 18, 1999. On March 1, 1999, the date Edmundson was to return from her maternity leave, she quit. Defs.' Facts ¶¶ 10, 12.
2. Facts surrounding Amy Edmundson's Title VII claim
Neither party has provided the court with a coherent explanation either of the basis of Edmundson's harassment claim or of AerChem's defense to that claim. We thus attempt to distill as best we can the relevant facts from those so sketchily provided to us. Looking first at Edmundson's version of the events, as described in her EEOC charge filed on October 14, 1999, we note that she alleges that she had been subjected daily to sexual harassment by Kevin Jeffers from the time that she returned to work, on April 7, 1998, until the date she quit, March 1, 1999. We are not altogether confident of this factual assertion, however, since the section in which the claimant is to mark the dates of discrimination reflects the first instance of discrimination as December 19, 1998 (approximately 300 days prior to the filing of the EEOC Charge). See Edmundson Dep., Ex. 11, EEOC Charge of Discrimination (attached to Defs.' Mot. for Partial Summ. J.). Edmundson also states in her EEOC charge that she "did not complain [about the daily harassment by Kevin Jeffers] as the only one to complain to was Michael Jeffers, President of the company and Kevin Jeffers [sic] brother." Id.
In the complaint in the case at bar, Edmundson further alleges that she was subjected to daily sexual comments as far back as February of 1997, both during her initial stint with AerChem and after she was rehired in April of 1998. Compl. ¶¶ 52-53. Edmundson claims that Kevin Jeffers made daily comments related to her mood: if she was in a good mood, he would comment that she "must have gotten some last night," if she was in a bad mood, he would say something like, "Haven't you had any in a while?" or "You need to tell Kent to give you a little. Maybe that would put you in a better mood." Compl. ¶ 54. Edmundson's reiterates these allegations in her later-filed affidavit. Edmundson `s Aff. ¶ 11.
Edmundson also asserts in her affidavit that she complained about these inappropriate comments prior to March of 1998. Compare Edmundson Aff. ¶ 8 with, Compl. ¶ 58.
In addition to these daily comments, Edmundson also contends that on or about June 1, 1998, she went to Kevin's office to inform him of her pregnancy, at which point he "proceeded to hold her while talking in her ear;" Edmundson ran from the room and "heard [him] laughing." Compl. ¶¶ 73-74. Edmundson asserts that she immediately reported this incident to Mike Griffen (her supervisor) "but nothing was ever done."Id. ¶ 75.
Later that summer, Edmundson was served with a subpoena to testify before the EEOC in relation to a complaint of harassment filed by a co-employee. Compl. ¶ 76. Although the relevance is unclear as to Edmundson's harassment claim, she further reports that around September 1, 1998, she was informed that AerChem was giving her a promotion, raise and managerial duties. Compl. ¶ 77. On or about September 15, 1998, the date she was scheduled to testify, Edmundson alleges that she and Flynn were called into Kevin Jeffers' office at which time he "made some sexual comments about Paulette's [Flynn's] legs, and loaned [us] his car to drive to the EEOC office in Indianapolis." Id. ¶ 78. The day after this testimony, Edmundson was given a negative evaluation by Mike Griffin and Ron Tipmann (she contends that this is the only negative evaluation she had received at AerChem up to that point), as a result of which, Edmundson alleges that she was placed on probationary status. Compl. ¶¶ 80-81. Although she does not describe the nature of this "probationary status," she avers in her complaint that she was informed by Mike Griffin and Kevin Jeffers that AerChem would not permit her to work at home during her maternity leave "as have all female employees before and after." Compl. ¶ 85.
In contrast, Edmundson testified in her affidavit that she was placed on probationary status not in mid-September, but on December 18, 1998, the date of Griffin's follow-up evaluation of her performance. Edmundson Aff. ¶ 7.
Edmundson further complains about an incident that occurred in October of 1998, involving Jeremiah Clark ("Clark"), wherein Clark "stormed into" her office and "called her a `bitch[,]' among other sexist and threatening comments." Compl. ¶ 82. Edmundson asserts that she notified both Mike Griffin and Michael Jeffers of this incident and was told to put the report in writing and that her written complaint would be given to a committee which had been formed to deal with all employee complaints of this nature. Compl. ¶ 83. In her deposition, Edmundson clarified that she first complained only to Michael Jeffers and that he had told her to put the complaint against Clark in writing; Griffin did not become involved until later. Edmundson Dep. at 73-74. Edmundson does not explicitly indicate whether she complied with this request, but reports that she received no further response from anyone regarding the incident. For purposes of this motion, we will assume that she complied with Michael Jeffers' request to create a written complaint and that AerChem (or Michael Jeffers and Mike Griffin) failed to follow-up.
At her deposition and in a later-filed affidavit, she elaborated that Clark had entered her office because she had been using a computer that he was waiting to use. Edmundson Dep. at 74; id. at 72 (testifying that Clark "came in my office and said I was a bitch and something to the effect that I — I wanted to get my way and I was a control freak and things to that nature."). Although Edmundson did not consider the comments themselves to be threatening, she did consider his manner (he was "leaning over" her desk at the time) to be threatening. Id. at 72, 73. She also considered his use of the term "bitch" to be sexist "because no man I've heard has called another man a bitch. He called me a bitch because I'm a woman." Id. at 73. According to Edmundson, in response to Clark's outburst, she "stood there dumbfounded and silent." Edmundson Aff. ¶ 3.
Edmundson claims that several months later she spoke to Clark who told her that "Mike Griffen and Ron Tipmann [another AerChem manager] had told him that [she] was pregnant, was hormonal, and was to be avoided." Compl. ¶ 84. Defendants object to Edmundson's testimony as to these comments allegedly made by Clark, claiming his out-of-court assertions are inadmissible hearsay because there is no evidence that they were made in any managerial capacity. It is true that a party may not rely upon inadmissible hearsay evidence to oppose a motion for summary judgment, so we will not consider Edmundson's testimony in this regard. E.g., Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). Defendants contend that the initial encounter between Clark and Edmundson was a "full blown obscenity laced shouting match with one of her fellow employees," citing Edmundson's deposition testimony. The deposition does not support Defendants' assertion that Edmundson herself shouted obscenities; rather, Edmundson's testimony, which has been consistent in this respect, was that Clark shouted obscenities at her while just she stood there. Defendants invoke the incident between Clark and Edmundson, and Edmundson's complaint to Michael Jeffers and Mike Griffiin in response to it, as evidence that Edmundson was aware of the company's anti-harassment policy. Defendants contrast Edmundson's invocation of the policy after her run-in with Clark with her failure to cite or comply with the policy with respect to her allegations about Kevin Jeffers. Defs.' Facts ¶ 11 (citing K. Jeffers Aff. ¶ 11).
Edmundson's maternity leave started January 18, 1999. Several weeks later, she brought her baby to AerChem giving rise to Kevin Jeffers' tasteless inquiry, (in the presence of Michael Jeffers) about "how long they had her on the table with her legs spread." Compl. ¶ 86. On March 1, 1999, the date on which she was to return from her maternity leave, Edmundson resigned from AerChem. Compl. ¶ 87.
Defendants' version of the events is notably different from Edmundson's. Defendants characterize Edmundson's harassment claim as based on repeated, frequent sexual comments made to and about her by Kevin Jeffers and that, on one occasion, on or about June 1, 1998, he "[held] her while talking in her ear." Defs.' Br. at 7 (citing Compl. ¶¶ 70, 72-73). Kevin Jeffers, himself, claims to have been ignorant of any of Edmundson's complaints prior to her October, 1998 EEOC complaint. K. Jeffers Aff. ¶ 11. He denies all of Edmundson's allegations, except that he agrees that the two of them hugged after she announced her pregnancy, asserting that it was "purely platonic in nature and was returned by Ms. Edmundson in the same spirit." Id.
Kevin Jeffers maintains that he had little contact with Edmundson (no more than six brief conversations) from the time she was rehired in April of 1998 until she resigned in March of 1999; in fact, he claims to have been out of the office during the majority of that time. K. Jeffers Aff. ¶ 9. He contends that the only conversation that took place in the ten-month period preceding the filing of her EEOC complaint was when she brought her baby into the office in January or February of 1999, during which conversation he denies making any comment about "how long [they had you] on the table with [your] legs spread." Id. ¶ 10.
Defendants cite Edmundson's own deposition testimony as supportive of this proposition. However, they have neglected to provide us with the cited pages so we are unable to evaluate this assertion. Defs.' Reply to Amended Resp. to Defs.' Facts ¶ 14 (citing Edmundson Dep. at 66-67).
With respect to Edmundson's September and December 1998 evaluations, Defendants contend that by September, her supervisor, Mike Griffin, "had grown sufficiently concerned about various critical aspects of her job performance, particularly her inability to perform her tasks in a timely manner, that he issued her a critical and unfavorable performance review." Defs.' Facts ¶ 12. The written performance review, which occurred five months after Edmundson had been rehired by AerChem and placed in her new position in the freight department, expressed "serious concerns with regard to your dedication to the position," and highlighted areas of concern and suggested avenues for improvement. Edmundson Dep., Ex. 9, September 17, 1998, performance review of Amy Edmundson ("September 1998 performance review), at 1. Griffin also expressed his availability to aid her in any of these areas should she wish such assistance. Id. at 2.
Ninety days later, on December 18, 1998, Griffin provided a review of Edmundson's then "current performance level," which indicated "a positive shift in some of the areas previously reviewed, [but] many areas [were] still unchanged." Edmundson Dep., Ex. 10, December 18, 1998, performance review of Amy Edmundson ("December 1998 performance review"), at 1. On that date, Griffin placed Edmundson on "Probationary Employee Status" for the ensuing ninety days, excluding any leave time taken as a result of her pregnancy; if Griffin did not perceive improvement during that period, Edmundson faced the possibility of termination. Id.
We construe all factual conflicts in favor of Plaintiff, as we are required to do at this juncture.
B. Analysis of Edmundson's Title VII Claim 1. Proper Title VII defendants
The first question we must address is who or what is a proper defendant in a discrimination case brought under Title VII. Title VII prohibits an employer from discriminating against "any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). Title VII defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person[.]" § 2000e(b).
The Seventh Circuit has made clear that this definition of employer excludes an individual who does not independently meet Title VII's definition of employer. EEOC v. AIC Sec. Investigations, Inc., 55 F.3d 1276, 1279-82 (7th Cir. 1995) (applying definition of employer found in Americans With Disabilities Act); Williams v. Banning, 72 F.3d 552, 553-54 (7th Cir. 1995) (applying analysis of AIC Sec. to Title VII claim and noting that Title VII's definition of employer is not meaningfully distinguishable from ADA's definition of employer); accord Silk v. City of Chicago, 194 F.3d 788, 797 n. 5 (7th Cir. 1999); Geier v. Medtronic, Inc., 99 F.3d 238, 244 (7th Cir. 1996). Thus, in AIC Sec. Investigations, Inc., the Court held that a sole shareholder of a defendant-employer was not subject to liability under Title VII, the Americans with Disabilities Act, or the Age in Employment Discrimination Act. Id. at 1279-81; see also Williams, 72 F.3d at 555 (holding that supervisor does not fall within Title VII's definition of employer in his individual capacity). The proper defendant answering to a federal anti-discrimination claim is the employer itself and individuals are properly joined only in their official capacity, for the purpose of resondeat superior liability, but not for the purpose of individual liability — regardless of that individual's role with the defendant. E.g., AIC Sec. Investigations, Inc., 55 F.3d at 1280.
Applying this settled law to the claims before us, AerChem, not the Jeffers' individually, is the "employer" as defined by Title VII and therefore the proper defendant answerable to a claim of discrimination brought under that statute. Edmundson's Title VII claims against the Jeffers' individually and as owners of AerChem therefore fail as a matter of law.
In this regard, any conclusion we might reach as to Ms. Jeffers' ownership interest in and extent of her involvement with AerChem would be irrelevant: whether she was her sons' silent partner in owning AerChem, or played an active role in running the company, her actions would not give rise to individual liability and AerChem would remain the only proper defendant to Edmundson's Title VII claim.
2. Title VII claims available to Edmundson
Plaintiffs' complaint and brief in opposition to summary judgment assert several Title VII claims against AerChem: that Defendants took retaliatory actions against Edmundson (and Flynn) in the form of threats, demotions, and firings and that Defendants created a hostile work environment. Compl. ¶¶ 125, 126. Their response to Defendants' motion reiterates these claims and asserts that the hostile environment claim was a continuing violation. Pls.' Resp. in Opp'n to Defs.' Mot. for Partial Summ. J. ("Pls.' Resp.") at 3-5.Turning first to Edmundson's retaliation claim, Defendants argue that it must fail because she suffered no adverse employment action which could support a retaliation claim, that the actions cited by Edmundson as being retaliatory took place more than 300 days prior to her EEOC charge, and that because her EEOC charge contained no allegations of retaliation, she failed to exhaust her administrative remedies. Defs.' Reply at 2.
A plaintiff may not bring claims in a lawsuit which were not included in her EEOC charge. Cable v. Ivy Tech State Coll., 200 F.3d 467, 476 (7th Cir. 1999). "[T]his requirement serves to enhance the administrative enforcement process by ensuring that the EEOC can conduct a full investigation while also providing the employer with advance notice of the claim and an opportunity to resolve the dispute." Id. at 476-77. A claim falls within the scope of the EEOC complaint if it is "like or reasonably related to" the charge filed in the EEOC complaint and if it "reasonably could have developed from the EEOC's investigation of the charges before it." Id. at 477. Such a reasonable relationship exists if there is a factual relationship between the claim and the EEOC complaint. Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995).
An exception to this rule is where the retaliation is alleged to have occurred in response to the filing of the EEOC charge itself; the facts in the case at bar do not fit such an exception. E.g., Heuer v. Weil-McLain, 203 F.3d 1021, 1023-24 (7th Cir. 2000)
Plainly, Edmundson neglected to check the box on her EEOC charge indicating that she suffered discrimination as a result of retaliation.See EEOC Charge. Moreover, her description of the discrimination includes the allegations of unwanted sexual comments, but neglects to mention the allegedly retaliatory actions of being "labeled `hormonal' due to her pregnancy," or being "brought back to work in March of 1998 in order to force her to sign release forms," or any of the various other ways in which AerChem is alleged to have retaliated against her. Pls.' Resp. at 5. Plaintiffs provide us with no explanation as to how these actions "reasonably relate" to her EEOC charge and we are unable to find such a relationship ourselves. Edmundson's retaliation claim therefore falters as a matter of law.
Even if we were to conclude otherwise, Title VII requires that a claim for discrimination (including retaliation) be filed with the EEOC within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); see also Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445 (7th Cir. 1994) (holding that a Title VII charge brought in Indiana must be filed within 300 days of the act that is the basis of the complaint). Her EEOC charge was filed on October 14, 1999, making any incidents which occurred prior to December 18, 1998, outside the 300-day time period. Clearly this precludes any cause of action related to her rehiring in March of 1998. While the act of placing Edmundson on "probationary" status, thereby subjecting her to the possibility of termination, might support a retaliation claim (it occurred either on September 18, 1998, or on December 18, 1998, exactly 300 days prior to her EEOC charge), her failure to include allegations of retaliation on her EEOC charge or to substantively brief the issue constitutes a waiver of any retaliation claim in this case. As a substantive matter, if the action was taken on September 18, it does not fall within 300-days of her EEOC charge and therefore is barred. If it occurred on December 18, 1998, Edmundson has presented no evidence tying this allegedly retaliatory act to protected activity on her part, meaning that her claim must fail due to her failure to establish a prima facie case of retaliation. E.g., Pafford v. Herman, 148 F.3d 658, 670 (7th Cir. 1998) (setting out prima facie case for retaliation claim).
Title VII also prohibits an employer from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . . " 42 U.S.C. § 2000e-2(a)(1). Title VII forbids not only economic or tangible discrimination, such as discharge, demotion, or undesirable assignment, but it also prohibits conduct that creates hostile work environments. Faragher v. City of Boca Raton, 524 U.S. 775, 786-87 (1998); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1453 (7th Cir. 1994). "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."Faragher, 524 U.S. at 807; Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1142 (7th Cir. 2001) (citing Hill v. Am. Gen. Fin., Inc., 218 F.3d 639, 642 (7th Cir. 2000)). "When the workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated."Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)).
An employer's liability for harassment committed by a supervisor turns on whether a tangible employment action has been taken or not. Faragher, 524 U.S. at 807-08; Wolf, 250 F.3d at 1142. If not, the employer may raise as an affirmative defense to liability or damages that "(1) it exercised reasonable care to prevent or correct promptly any sexually harassing behavior; and (2) that the plaintiff failed to take advantage of any preventative or corrective opportunities provided by her employer to avoid harm otherwise." Wolf, 250 F.3d at 1142 (quoting Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000) (citing Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807)). However, where the employee has suffered an adverse employment action, no such affirmative defense is available to the employer. Id.
Edmundson's brief is devoid of any argument that she suffered a tangible employment action as a result of the alleged harassment. Our reading of the facts alleged indicates that the only such tangible action which could be asserted would be for constructive discharge, a claim which the Seventh Circuit has not yet determined to be a tangible employment action within the meaning of Ellerth and Faragher. Wolf, 250 F.3d at 1142; Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 666 (7th Cir. 2001). However, as we have noted previously with respect to other of Edmundson's claims, due to her failure to brief this issue, we cannot construe it so broadly as to establish that a tangible employment action actually occurred.
In order for a plaintiff to have an actionable hostile work environment claim under Title VII, the work environment must be both objectively and subjectively hostile. Harris, 510 U.S. at 21-22. In other words, the environment must be one that a reasonable person in the plaintiff's position would find hostile or abusive, and one that the victim did in fact perceive to be so. Faragher, 524 U.S. at 786-87; Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); Dey, 28 F.3d at 1454. This inquiry eliminates any requirement that a plaintiff demonstrate that the harassment concretely impaired his or her work performance or psychological well being, and focuses the inquiry on whether the harassment altered the terms and conditions of his or her employment.Harris, 510 U.S. at 21-22; Dey, 28 F.3d at 1454-55.
We determine whether an environment is sufficiently hostile or abusive to impose liability by looking at the totality of the circumstances, "including but not limited to 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.'" Mosher, 240 F.3d at 668 (quoting Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23))). For example, relatively isolated instances of non-severe misconduct will not support a claim of hostile work environment, although a pervasive pattern of bigoted jokes may incur Title VII liability. Dey, 28 F.3d at 1456; Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993). The determination of a defendant's liability under Title VII "`must be made on a case-by-case basis after considering the totality of the circumstances.'" Rodgers, 12 F.3d at 674 (quoting Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380-81 (7th Cir. 1986)).
As Seventh Circuit Judge Kenneth Ripple has phrased it, we must examine "isolated" incidents cumulatively "in order to obtain a realistic view of the work environment." Doe, 44 F.3d at 444.
1. Objective evaluation of the hostile environment claim.
An objectively hostile environment is one that a reasonable person would find hostile or abusive. Harris, 510 U.S. at 21; Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998), cert. denied, 528 U.S. 988 (1999). Although there is no mathematically precise test to apply to the somewhat elusive question of whether an environment is objectively hostile or abusive, appropriate factors that a court may consider include: "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." Harris, 510 U.S. at 22-23. Yet, "no single factor is required," and whether a work environment is "`hostile' or `abusive' can be determined only by looking at all the circumstances." Id. "It is not enough that a supervisor or coworker fails to treat a female employee with sensitivity, tact, and delicacy, uses course language, or is a boor. Such failures are too commonplace in today's America, regardless of the sex of the employee to be classified as discriminatory." Minor, 174 F.3d at 858.
In Dey, the plaintiff claimed that she had been sexually harassed based on five specific incidents of harassment by the employer's vice-president: a comment by the vice-president that another woman with whom he was working was a "flat chested cunt;" the vice-president's remark that the plaintiff had not gotten a tan during her vacation because she had spent the week on her back in bed; his statement that he "would eat [plaintiff] no matter how [she] smelled;" his unzipping of his slacks while he and plaintiff were alone in the elevator; and his overheard remark to someone on the telephone that "there is a girl in my office going down on me," made when the plaintiff leaned down to put some documents on his floor. Id. at 1449-50. In addition, the plaintiff made a more general allegation that this same vice-president had made "almost daily comments, gestures, and innuendo of a sexual nature" that were not as blatant as the five, specific instances she was able to recall. Id. at 1456. The combination of the abusive nature of the specific incidents alleged to have occurred and the general allegation of daily comments led the Seventh Circuit to conclude that the plaintiff had met her burden of establishing that the work environment was consistently offensive and abusive. Id. at 1456; see also Harbison v. Prestige Group, Inc., No. IP 99-0882-C-H/G, 2001 WL 395786, at *20 (S.D.Ind. Mar. 16, 2001) (denying summary judgment on plaintiff's allegations that greater than forty offensive comments had been made to her over a year-long period by the defendant's vice-president, that those comments were sexually graphic, that he had suggested her career would benefit if she went to a hotel room with him and that he had engaged in unwelcome hugging, touching and kissing).
In contrast, in Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th Cir. 1995), after the jury found in favor of a plaintiff on charges of sexual harassment who alleged nine specific instances of harassment which had occurred over a seven month period, id. at 430, the Seventh Circuit overturned that jury verdict, noting that the defendant "never said anything to her that could not be repeated on primetime [sic] television" and found as a matter of law that the "handful of comments" alleged to have occurred did not give rise to liability under Title VII. Id. at 431.
More recently, in Wolf v. Northwest Ind. Symphony Soc'y, the plaintiff, a male operations manager of the symphony, alleged that he had been sexually harassed by his female supervisor. The plaintiff cited several specific actions taken by his supervisor to support his harassment claim, including:
1) making him perform menial tasks around the office [that he alleged were beyond the scope of his job responsibilities]; 2) informing him that she was glad there was `muscle' in the office; 3) telling [him] on several occasions what she wore to bed; 4) phoning [him] late at night to tell him that she was alone and scared; 5) informing him that she had not been with a man in six years; 6) holding his arm when he walked her to her car after work; 7) reserving a hotel room for [him] and using the shower in that room before a concert; 8) telling him that men were untrustworthy; as well as other similar incidents." Id. at 1143. He also alleged that she once gave him her house keys and told him that he "never knew when he might need them." Id. at 1139. However, the Court noted that the plaintiff did not allege that his supervisor ever explicitly requested a sexual relationship with him.Id. The Seventh Circuit held that these allegations were insufficient to create an objectively hostile work environment, finding that they were even less egregious than the actions alleged to have occurred inBaskerville. Id. at 1144. "Perhaps [the supervisor] crassly let [plaintiff] know that she was lonely, but only someone `mysteriously aloof from contemporary American popular culture in all its sex-saturated vulgarity' would find [her] sexual overtures, if they even can be identified as such, substantially distressing." Id. (quotingBaskerville, 50 F.3d at 431).
The facts of this case fall somewhere in between those before the courts in Baskerville and Wolf on the one hand, and Dey and Harbison on the other. Accepting Edmundson's allegations as true, as we must on this motion, we note that Kevin Jeffers made nearly daily comments of a sexual nature to her. However, none of them appears to be as "blatant" as any of the specific incidents alleged in Dey or Harbison. Edmundson alleges only one incident over the entire time she was employed at AerChem which involved any physical contact, when, in June of 1998, she informed Kevin Jeffers that she was pregnant and he "proceeded to hold her while talking in her ear" and laughed after she ran from the room. Not only is this incident far too early to be timely under her EEOC charge, but Edmundson's testimony itself does not provide any context which allows us to determine that the incident was objectively threatening, intimidating or hostile. Edmundson does not tell us what words Kevin was "whispering," either in specifics or in generalities, and she provides no information as to whether the "hug" or "holding" was a matter of seconds or longer or a gesture of aggression.
The only other specific allegation made which involves Kevin Jeffers refers to his remark about Edmundson "hav[ing] her legs in the air" while delivering her baby and discussing his sexual interest in other workers, rather than Edmundson herself. The general allegations (e.g. remarks about Edmundson's moods and about other women's sexual or body traits) also involve comments about Edmundson's sexual life, but not in a manner which implies or connotes overt pressure on Edmundson in any way or intimidation of her to submit to sexual relations with Kevin Jeffers.
Edmundson's allegations, if taken as true, depict Kevin Jeffers as a boorish man whose "sense of humor took final shape in adolescence" and whose use of language, being regularly "tinged with sexual innuendo," is at best boring and also offensive. Baskerville, 50 F.3d at 430, 431. However, as was the case in Baskerville and Wolf, for the most part, none of Kevin Jeffers' distasteful and immature comments directed at Edmundson were worse than those the public knows to be "repeated on prime[-] time television," Baskerville, 50 f3d at 431, which sad to say may be as telling in terms of the low quality of television programming these days as it is of the workplace.
Although Edmundson's allegations describe a setting where she was subjected to frequent inappropriate comments, the comments and remarks were not so severe as to objectively affect the workplace. Without in any way intending to endorse such boorishness, we must conclude nonetheless that Edmundson has failed to show that her workplace was objectively hostile. Her sexual harassment claim therefore fails as a matter of law. Defendant's motion for summary judgment on Edmundson's Title VII claim is therefore GRANTED.
C. The Remainder of the Claims in This Case
Having now granted summary judgment on Edmundson's Title VII claim and severed Flynn's Title VII claim for purposes of arbitration, the only claims remaining are the state law claims of Edmundson, Turpin, and Floyd. While we have original jurisdiction over Edmundson's Title VII claims, 28 U.S.C. § 1331, we may exercise supplemental jurisdiction over the remaining state law claims only if they are so related to her Title VII claim "that they form part of the same case or controversy." 28 U.S.C. § 1367(a). We have our doubts as to whether the claims of Turpin's and Floyd's are part of the same case or controversy as Edmundson's Title VII claim; however, our concern is not dispositive of the matter. Since we have granted summary judgment on Edmundson's Title VII claim, we choose to decline to exercise supplemental jurisdiction over the remaining state law claims and to dismiss them without prejudice. § 1367(c)(3); Carnagie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993); Young v. Easter Enters., Inc., 915 F. Supp. 58, 72 (S.D.Ind. 1995). Accordingly, we dismiss without prejudice the second, third, and fourth state law claims for relief as set out in the complaint with respect to Plaintiffs, Edmundson, Turpin, and Floyd, to allow them, if plaintiffs choose, to resolve them in the proper state court forum.
D. Entry of Partial Final Judgment
Although Flynn's claims are still pending before us, Federal Rule of Civil Procedure 54(b) allows us discretion to enter partial final judgment as to the claims of the remaining parties after making "an express determination that there is no just reason for delay [and upon an express direction for the entry of judgment]." Reiter v. Cooper, 507 U.S. 258, 265 (1993) (quoting Rule 54(b)); accord Ruiz v. Blentech Corp., 89 F.3d 320, 323 (7th Cir. 1996). We are to exercise this discretion "in light of `judicial administrative interests as well as the equities involved' and giving due weight to `the historic federal policy against piecemeal appeals.'" Id. (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)) (internal quotations omitted).
In this case, there is no reason to delay entry of final judgment until Flynn's claims are resolved. Given the fact-specific nature of a sexual harassment suit, our resolution of Edmundson's Title VII claim does not have any bearing on Flynn's Title VII claim so no delay is warranted on that issue. As for the state-law claims, there is no reason to force the plaintiffs to await final resolution of Flynn' claims to allow them to pursue those state-law claims in the proper state court forum, if the plaintiffs so choose. Having found no just reason for delay, we therefore direct that a final judgment be entered on the claims of plaintiffs Edmundson, Turpin, and Floyd.
Conclusion
For the reasons discussed above, we GRANT Summary Judgment in favor of Defendants with respect to Edmundson's Title VII claim and dismiss without prejudice the remainder of the claims brought by Edmundson, Turpin and Floyd.
PARTIAL FINAL JUDGMENT
Pursuant to the Court's Entry of this date and having expressly determined therein that there is no just reason for delay in entering final judgment on the claims of Plaintiffs, Amy Edmundson, Shelley Turpin, and Steven Floyd, we hereby enter final judgment on those plaintiffs' claims. Summary Judgment is Granted in favor of Defendants and against Edmundson on the First Claim for Relief. The Second, Third, and Fourth Claims for Relief are hereby Dismissed Without Prejudice as against Plaintiffs, Edmundson, Turpin and Floyd. Each party must bear its own costs.