Parkins v. Civil Constructors of Illinois, Inc.

• Decision Date: 30 December 1998
• Docket Number: No. 98-1687,98-1687
• Citation: 163 F.3d 1027
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1329, 74 Empl. Prac. Dec. P 45,699 Lesley A. PARKINS, Plaintiff-Appellant, v. CIVIL CONSTRUCTORS OF ILLINOIS, INC., d/b/a The Helm Group, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1027

163 F.3d 1027

78 Fair Empl.Prac.Cas. (BNA) 1329,

74 Empl. Prac. Dec. P 45,699

Lesley A. PARKINS, Plaintiff-Appellant, v. CIVIL CONSTRUCTORS OF ILLINOIS, INC., d/b/a The Helm Group Inc., Defendant-Appellee.

No. 98-1687.

United States Court of Appeals Seventh Circuit.

Argued Sept. 22, 1998.

Decided Dec. 30, 1998.

Annice M. Kelly (argued), Ernest T. Rossiello, Rossiello & Associates, Chicago, IL, for Plaintiff-Apellant.

Gregory J. Schroedter (argued), Bell, Boyd & Lloyd, Chicago, IL, Ann M. Dittmar, McGreevy, Johnson & Williams, Rockford, IL, for Defendant-Appellee.

Before BAUER, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Truck driver Lesley Parkins sued her employer, Civil Constructors of Illinois, Inc., under Title VII, alleging hostile environment sexual harassment and retaliation. The district court granted summary judgment for Civil Constructors because it promptly remedied any harassment and because Parkins failed to establish a prima facie case of retaliation. On appeal, Parkins contends that because she complained to her superior, the district court should have imputed notice of her harassment to Civil Constructors, and also that two of her purported harassers were supervisors and not co-employees. With respect to her retaliation claim, she argues that she presented sufficient evidence to establish a prima facie case and pretext. We affirm.

I. Background

We recount the facts in the light most favorable to Parkins. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Parkins began working as a six-wheel dump-truck driver for Civil Constructors--a construction and paving company--in June 1994. Her duties entailed hauling construction materials and debris to and from the work sites. During her two-plus years of employment with Civil Constructors, some of her co-workers subjected her to foul language, sexual stories and innuendos, and eventually touching. Parkins complained to her dispatcher, Tim Spellman, and to one of her purported harassers, Robert Strong. Although she saw the superintendent in charge of her division and Civil Constructors' EEO officer almost every day, she did not complain to them until August 1996. Around that time, five of Civil Constructors' employees harassed Parkins by bringing a pornographic picture to work, making sexually suggestive comments, and grabbing her on two occasions. On August 23, 1996, Parkins filed a grievance with her Union--Teamsters Local 325--complaining of sexual harassment. The Union contacted the president and EEO officer of Civil Constructors, Bruce Helm, and he immediately launched an investigation. After Civil Constructors' investigators spoke with Parkins, the five alleged harassers, and more than twenty employees, Civil Constructors concluded that Parkins had been harassed, although she had instigated some of the conduct. Accordingly, Civil Constructors punished the employees: one received a verbal reprimand, three received one-week suspensions without pay, and one received a three-week suspension without pay, which resulted in lost wages of almost $5,000. Civil Constructors also informed them that any further complaints of harassment would result in their termination.

Parkins concedes that she was never harassed again, although her co-workers began ignoring her and were not as friendly as before. As her work was seasonal, Parkins continued working for Civil Constructors until the end of the construction season when, in accordance with Civil Constructors' seniority retention policy, she and another junior dump-truck driver were laid off on November 14, 1996. This was about the same time Civil Constructors had laid her off in previous years. Subsequently, all of the more senior six-wheel dump-truck drivers were laid off by November 22, 1996. During the winter layoff, Civil Constructors sold its aging fleet of six-wheel dump-trucks, negating the need to recall all of the drivers. Consequently, in the spring of 1997, the three most junior truck drivers (a group which included Parkins) were not called back to work; rather, drivers with greater seniority were recalled.

On November 11, 1996, Parkins filed a charge of discrimination with the Illinois Department of Human Rights and Equal Employment Opportunity Commission and initiated this lawsuit on January 17, 1997. The district court granted summary judgment for the defendant, concluding that Parkins purported complaints of harassment to Spellman and Strong could not be imputed to Civil Constructors, as they were low-level employees. Additionally, it concluded that none of her harassers was a supervisor. Because Civil Constructors had no notice of the harassment until August 1996, at which time it took prompt corrective action, Civil Constructors was not liable for the harassment as a matter of law. With respect to the retaliation claim, the court observed that Parkins failed to establish the causation element of a prima facie case.

II. Discussion

A. Standard of Review

We review the district court's grant of summary judgment de novo. Rodriguez v. City of Chicago, 156 F.3d 771, 775 (7th Cir.1998). The record is reviewed in the light most favorable to the nonmoving party and we draw all reasonable inferences in her favor. Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th Cir.1998). Summary judgment is appropriate if the pleadings, depositions, answers to the interrogatories, affidavits, and admissions on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rodriguez, 156 F.3d at 775. We may affirm on any ground for which there is support in the record. Diersen v. Chicago Car Exch., 110 F.3d 481, 487 n. 5 (7th Cir.1997).

B. Hostile Environment Sexual Harassment Claim

Title VII provides that "[i]t shall be an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment which is so " 'severe or pervasive' as to 'alter the conditions of the victim's employment and creates an abusive working environment' violates Title VII." Faragher v. City of Boca Raton, 524 U.S. 775, ----, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotations omitted)). In order to establish a prima facie case of hostile environment sexual harassment, a 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 had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for employer liability. Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir.1993); see Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990). The district court granted summary judgment based on Parkins' failure to establish the fourth prong of a prima facie case.

1. Basis for employer liability.

An employer's liability for hostile environment sexual harassment depends upon whether the harasser is the victim's supervisor or merely a co-employee. Faragher, 524 U.S. at ---- - ----, 118 S.Ct. at 2292-93; Guess, 913 F.2d at 465. Harassment "by co-workers differs from harassment by supervisors...." Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1422 (7th Cir.1986). Where the harasser is a supervisor and the victim suffered no tangible employment action, an employer is strictly liable, although there is the possibility of an affirmative defense. Faragher, 524 U.S. at ----, 118 S.Ct. at 2293. "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." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, ----, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998). Because employers do not entrust mere co-employees with any significant authority with which they might harass a victim, employers are liable for a co-employee's harassment only "when they have been negligent either in discovering or remedying the harassment." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.1997); accord Baskerville v. Culligan Int'l Co., 50 F.3d 428, 432 (7th Cir.1995). An employer's legal duty in co-employee harassment cases will be discharged if it takes "reasonable steps to discover and rectify acts of sexual harassment of its employees." Id.

In the present case, Parkins alleges that two of her harassers were supervisors. Specifically, she argues that foremen Strong and Charles Boeke ("Boeke") periodically functioned as her supervisors when she was present on job sites where they were working. Civil Constructors, on the other hand, contends that Strong and Boeke were low-level employees who enjoyed little or no supervisory authority. Accordingly, we must determine the essential attributes of a supervisor for purposes of determining employer liability, and assess whether Civil Constructors endowed Strong and Boeke with these characteristics.

Initially, we note that Title VII provides no definition of the term "supervisor." Because of this, our understanding of the term must be guided by the common law of agency and the purposes of Title VII. Faragher, 524 U.S. at ----, 118 S.Ct. at 2285; Meritor, 477 U.S. at 72, 106 S.Ct. 2399. At the outset, the Supreme Court has made clear that heightened liability exists in...