Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

A few days ago, I post­ed my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N-word could cre­ate a racial­ly hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chica­go Tran­sit Author­i­ty, – F.3d –, – WL — (7th Cir. August 23, 2010), which rais­es the sim­i­lar issue: Can a sin­gle instance of sex­u­al harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the cir­cum­stances.

Ms. Berry is Sex­u­al­ly Harassed in a Sin­gle Inci­dent

Cyn­thia Berry was an employ­ee at the Chica­go Tran­sit Author­i­ty. She was on her break and sat at a pic­nic style table with three male co-work­ers. A fourth male co-work­er, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offend­ed by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seat­ed. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-work­ers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The oth­er three male co-work­ers got up from where they were seat­ed at the pic­nic table and moved to the oth­er end of the table. Then:

Berry says Carmichael remained where he was seat­ed and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the oth­er end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­i­ng Mar­shall to think he could order her around, she remained seat­ed, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry land­ed off-bal­ance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­i­ng to avoid any men, she lay down in a bus for the rest of her shift.


Ms. Berry Com­plains, and it Doesn’t Go Well

The next day Ms. Berry com­plained to a super­vi­sor about Mr. Carmichael’s con­duct, and the super­vi­sor respond­ed that she was a “pain in the butt” and she could lose her job if she com­plained against Carmichael about the sex­u­al mis­con­duct.

Nonethe­less, Ms. Berry then called the Chica­go Tran­sit Authority’s (CTA) equal employ­ment oppor­tu­ni­ty inves­ti­ga­tor to com­plain and to request an inves­ti­ga­tion. Ms. Berry got a fur­ther hos­tile response to her com­plaint, and she then called the police the day after the inci­dent.

The police, after inves­ti­gat­ing, decid­ed that Ms. Berry had been the aggres­sor, and the company’s inves­ti­ga­tion came to the same con­clu­sion. Carmichael alleged that Ms. Berry had sat down between his legs and that he had picked her up by the waist to move her out of his way.

Ms. Berry Files Suit, and More Bad News–Case Dis­missed

Ms. Berry filed suit in part alleg­ing a hos­tile work envi­ron­ment. The Chica­go Tran­sit Author­i­ty (CTA) moved for sum­ma­ry judg­ment to dis­miss the case, in part alleg­ing that her com­plaint, even if true, did not involve actions which could cre­ate a hos­tile work envi­ron­ment. The tri­al judge con­clud­ed that Mr. Carmichael’s con­duct was suf­fi­cient­ly severe to cre­ate a hos­tile work envi­ron­ment, but con­clud­ed that Ms. Berry’s case should be dis­missed because CTA took  prompt and effec­tive reme­di­al action. So sum­ma­ry judg­ment was grant­ed, and the case was dis­missed.

The Appeal, Sev­enth Cir­cuit Revers­es

While this is not the main point of this arti­cle, the Sev­enth Cir­cuit addressed the issue of whether Ms. Berry pre­sent­ed enough evi­dence to raise dis­put­ed ques­tions of fact in oppos­ing CTA’s motion for sum­ma­ry judg­ment. There had been a “mis­con­cep­tion” that the uncor­rob­o­rat­ed tes­ti­mo­ny of the non-mov­ing par­ty (the par­ty oppos­ing the motion for sum­ma­ry judg­ment) was legal­ly insuf­fi­cient to cre­ate dis­put­ed fact ques­tions where the tes­ti­mo­ny was “self-serv­ing”.  The Sev­enth Cir­cuit reject­ed that mis­con­cep­tion (the tri­al judge had dis­re­gard­ed some of Ms. Berry’s evi­dence because of that mis­con­cep­tion).

Mov­ing to the sub­stance of the appeal, the Sev­enth Cir­cuit held that Mr. Carmichael’s con­duct, even though it occurred dur­ing only a sin­gle encounter with Ms. Berry,  was severe enough to allow a jury to con­clude that it cre­at­ed a hos­tile work envi­ron­ment:

With respect to Carmichael’s actions, … Berry has pro­vid­ed enough evi­dence to allow her hos­tile work envi­ron­ment claim to go for­ward. As the dis­trict court not­ed, a sin­gle act can cre­ate a hos­tile envi­ron­ment if it is severe enough, Lap­ka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008); Hostetler v.  Qual­i­ty Din­ing, Inc., 218 F.3d 798, 808 (7th Cir. 2000), and instances of unin­vit­ed phys­i­cal con­tact with inti­mate parts of the body are among the most severe types of sex­u­al harass­ment, see Pat­ton v. Key­stone RV Co., 455 F.3d 812, 816 (7th Cir. 2006); Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001);
Baskerville v. Cul­li­gan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995). Carmichael’s actions, as alleged by Berry, qual­i­fy unde­ni­ably as unwel­come sex­u­al con­duct that estab­lished a hos­tile envi­ron­ment.

The Sev­enth Cir­cuit then con­clud­ed that the tri­al judge incor­rect­ly ruled that CTA could not be liable because it had tak­en prompt and appro­pri­ate reme­di­al action. The prop­er test is whether the employ­er “took prompt action that was rea­son­ably like­ly to pre­vent a reoc­cur­rence”. Under those cir­cum­stances, it would be the employee’s bur­den to prove that the employ­er failed to take such cor­rec­tive action. If the employ­er took the appro­pri­ate cor­rec­tive action, then the employ­er could not be held liable for the sex­u­al harass­ment of its non-man­age­r­i­al employ­ee.

The tri­al judge decid­ed that CTA took appro­pri­ate reme­di­al action, large­ly because it com­plete­ly dis­re­gard­ed Ms. Berry’s tes­ti­mo­ny because it was “uncor­rob­o­rat­ed”. That is the “mis­con­cep­tion” that I describe above that the Sev­enth Cir­cuit repu­di­at­ed.

So once the Sev­enth Cir­cuit treat­ed Ms. Berry tes­ti­mo­ny about CTA’s inves­ti­ga­tion as admis­si­ble, it con­clud­ed that Ms. Berry’s tes­ti­mo­ny cre­at­ed a fact ques­tion on whether CTA con­duct­ed a fair inves­ti­ga­tion. Here is the Seventh’s Circuit’s analy­sis of the evi­dence:

She con­tends that, far from facil­i­tat­ing a gen­uine inves­ti­ga­tion into Carmichael’s con­duct, Gor­man sab­o­taged the inves­ti­ga­tion. Gorman’s eager­ness to dis­re­gard the truth, she asserts, is reflect­ed in his assur­ance that he didn’t care what real­ly hap­pened because Berry was “a pain in the butt,” his pre­dic­tion that she would lose her job if she filed charges, and his promise that he was going to do “what­ev­er it takes to pro­tect CTA.” Berry’s tes­ti­mo­ny, and the infer­ences we must draw in her favor at this stage, see Scrug­gs, 587 F.3d at 838, would allow a rea­son­able factfind­er to con­clude that Gor­man, act­ing as a man­ag­er, mali­cious­ly thwart­ed any legit­i­mate inves­ti­ga­tion, and that the CTA was there­fore neg­li­gent or worse in respond­ing to her report of harass­ment. Grant­i­ng sum­ma­ry judg­ment on Berry’s claim of a hos­tile work environment—as it relat­ed to Carmichael’s actions and the CTA’s liability—was thus improp­er.

So there was evi­dence that one of CTA’s key man­age­ment employ­ees was hos­tile to Ms. Berry com­plain­ing about sex­u­al harass­ment and would do “what­ev­er it takes to pro­tect CTA”. That cre­at­ed ques­tions for the jury to resolve as to whether CTA con­duct­ed a prompt inves­ti­ga­tion in good faith.

The tri­al judge’s deci­sion on the hos­tile work envi­ron­ment claim was reversed, and the case was sent back to the tri­al judge for tri­al.

The Sev­enth Cir­cuit’s opin­ion was dis­cussed in an excel­lent blog post by Randy Enochs in the Mil­wau­kee Employ­ment Lawyer Blog.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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