260 F.3d 803 (7th Cir. 2001), 00-3631, Berry v Delta Airlines

Docket Nº:00-3631
Citation:260 F.3d 803
Party Name:Elise N. Berry, Plaintiff-Appellant, v. Delta Airlines, Incorporated, Defendant-Appellee.
Case Date:August 14, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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260 F.3d 803 (7th Cir. 2001)

Elise N. Berry, Plaintiff-Appellant,


Delta Airlines, Incorporated, Defendant-Appellee.

No. 00-3631

In the United States Court of Appeals, For the Seventh Circuit

August 14, 2001

Argued April 2, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 5770--James B. Zagel, Judge.

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Before Bauer, Cudahy, and Easterbrook, Circuit Judges.

Bauer, Circuit Judge.

Elise Berry appeals the district court's grant of summary judgment in favor of Delta Airlines on her Title VII claim of sexual harassment. We affirm.


Berry was employed as customer service agent at Delta's cargo facilities at O'Hare Airport in Chicago. Her job sometimes required her to enter the warehouse portion of Delta's cargo building and to work with employees of Argenbright Security ("Argenbright"), a company which Delta had contracted to provide baggage handling services. Fikret Causevic worked for Argenbright at the Delta cargo facilities as a warehouse supervisor.

On July 7, 1999, Berry met with Roger Blocker, a Delta regional manager, and complained that Causevic had been sexually harassing her both verbally and physically for over eight months. Berry provided Blocker with a litany of examples,

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including claims that Causevic slid his hand up her shorts to her panty line and told her that he loved her smooth legs, pulled her blouse away from her chest and tried to look down her shirt at her breasts, repeatedly asked her if she would take him up on his "proposition" (for sex) and if she would go with him on a "very, very long ride home," referred to her as his "girlfriend" in front of others, asked her on a date, told her he thought her "butt" and legs were "sexy," and tried to touch or embrace her inappropriately on various occasions. In addition, Berry claimed that, beginning in April, 1999, every time she called or visited the warehouse seeking work-related assistance from Causevic, he would answer her requests with cheeky comments such as "give me a kiss first," "what will you do for me," or "only if you go on a long ride with me."

Blocker immediately began to investigate Berry's complaint.1 On the very day that Berry complained about Causevic, Blocker contacted Delta's Equal Opportunity ("EO") Office at Delta's Atlanta headquarters to request guidance on how to handle Berry's complaint. Pursuant to directions from the EO office, Blocker met with Berry again that day to tell her that he intended to investigate her complaint. He asked Berry what she thought he should do about the situation. Berry told him that she only wanted Causevic to stop harassing her and to be kept away from her, and that she did not want to get him fired. Berry also opined that the Argenbright employees needed better training regarding appropriate behavior in the workplace, and that they should be disciplined when they acted inappropriately. During one of their meetings, Berry mentioned to Blocker that Illiana Torres, a friend and co-worker of Berry's, was present during one of the harassing episodes and might be able to corroborate Berry's complaint regarding that incident. Blocker asked Berry to submit a written statement detailing her complaints concerning Causevic.

The next day, after receiving Berry's written statement, Blocker reported the matter to Causevic's supervisor, Rodney Drake. Blocker and Drake then immediately confronted Causevic with Berry's allegations. After Causevic denied everything, Drake and Blocker instructed him to put his response in writing. Shortly thereafter, Berry met with Blocker again to report an additional incident of harassment which she claimed to have been too embarrassed to mention during their previous meetings. Specifically, Berry claimed that in April of 1999, while she was lifting the back of her shirt to show some of the warehouse employees the sunburn that she had acquired on a recent vacation, Causevic approached her from behind, put his arm around Berry's waist and tried to touch her breasts. Berry told Blocker that Jaron Ketchum, another Argenbright employee, had witnessed the event.

Blocker promptly began interviewing potential witnesses to the claimed harassment. He first spoke with Torres, who said that on one occasion she overheard Causevic ask Berry if she had thought about his "proposition," to which Berry responded "no." Torres stated that Causevic then said that he was "serious," and that Berry again told him "no" and asked her to leave her alone. Blocker asked Torres to memorialize this in a written

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statement, which she did. Torres did not confirm any other claims made by Berry. Moreover, shortly after hearing Berry's additional complaint concerning the sunburn incident, Blocker informed Drake of the new allegation and asked him to get a statement from Ketchum regarding the incident. Upon Drake's request, Ketchum provided a written statement which neither corroborated nor contradicted Berry's account of the incident (it merely stated that he wanted to be "left out of the situation" for "personal reasons."). Blocker then spoke with Ketchum in person and asked him if he has witnessed the sunburn incident, but Ketchum repeated that he did not want to get involved. Undaunted, Blocker met with Ketchum a second time on or about June 11, 1999, which was Ketchum's last day of work. Ketchum again refused to provide a written statement, preferring to stay out of the situation. However, this time Blocker then asked Ketchum to tell him "off the record" if he could confirm any of Berry's claims. The parties dispute what Ketchum said in response. Berry points to Ketchum's deposition, wherein Ketchum asserts that he told Blocker that he saw Causevic make "flirtatious remarks" to Berry and, during the sunburn incident, hug her around the stomach from behind and touch her leg below the knee. Delta relies on Blocker's deposition, wherein Blocker claims that while Ketchum gave him the impression that he might have seen something, he refused to give any details of what he might have seen. Blocker also testified that Ketchum expressly denied ever seeing Causevic grab Berry from behind around her breasts. Blocker also interviewed other Delta agents who worked with Berry. Two of the agents repeated concerns that they had expressed to Blocker earlier about Argenbright employees using offensive profanity in the warehouse, but none of them confirmed any of Berry's allegations, and some of them said that they had never seen Causevic do or say anything of a sexually inappropriate nature.

On June 18, 1999, Blocker informed Berry that he was unable to confirm that her allegations were true. However, Delta management did take some corrective measures shortly after Blocker concluded his investigation. Around June 21, 1999, Delta management set up a sexual harassment video in the back customer service area and directed all Delta employees to watch the video on their free time and to sign a log indicating that they had done so. The video was one that Delta employees were required to watch every year. Upon Blocker's request, Drake required all Argenbright employees to watch the video as well. However, Blocker did not discussed the content of the video with any of the employees. Moreover, some time around July 3, 1999, Blocker asked Drake to change Causevic's shift to eliminate or significantly reduce interaction between Causevic and Berry. Drake complied, and Causevic was moved to a day shift. While he suspected that Berry's complaint was the reason for his shift change, Causevic was never told this, nor was he ever told to keep away from Berry or reprimanded for any of his alleged improprieties. After the shift change, Berry's and Causevic's shifts overlapped for approximately one and one- half hours each day, and she continued to have contact with him on several occasions during those times.

After she complained to Blocker about Causevic, Berry experienced what she characterizes as continuing campaign of sexual harassment perpetrated by Causevic and other Argenbright employees. For example, while Berry was watching the sexual harassment video in the presence of another Delta agent on June 23, 1999, Causevic entered the room and said in a mocking fashion, "Oh, you're watching this

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video because of me, right, Elise?" As Berry was leaving later that day, Causevic derisively quipped, "Bye everybody, I have to stay here because I have to watch my video now," whereupon Causevic and another employee began laughing. In addition, as Causevic was leaving the premises with his wife in August of 1999 on his last day of work, Causevic's wife called Berry a "bitch." Finally, on various occasions in June and July, several Argenbright employees (including Causevic) were rude and uncooperative towards Berry, making it difficult for her to perform her job. For example, one Argenbright employee refused to help Berry with an international air bill in front of a customer. Others (including Causevic) would not listen to Berry when she attempted to communicate with them, forcing her to write down work-related information and hand it to them. Causevic repeatedly stonewalled Berry when she sought his assistance regarding customer service or inventory by either hanging up the phone when she called him, or by walking away or simply ignoring her when she made her requests in person. At times these incidents caused Berry so much stress and embarrassment that she would break down and cry at work.

Berry complained to Blocker about these incidents on several occasions, characterizing the situation as a "hostile environment" and demanding that Blocker take steps to rectify it immediately. Nevertheless, Berry maintains that Blocker brushed off her complaints that Causevic and other Argenbright employees were giving her the "cold shoulder," telling her at various times...

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