42 F.3d 439 (7th Cir. 1994), 94-1424, Doe v. R.R. Donnelley & Sons Co.

Docket Nº:94-1424.
Citation:42 F.3d 439
Party Name:Jane DOE and Mr. Jane Doe, Plaintiffs-Appellants, v. R.R. DONNELLEY & SONS COMPANY, Defendant-Appellee.
Case Date:December 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 439

42 F.3d 439 (7th Cir. 1994)

Jane DOE and Mr. Jane Doe, Plaintiffs-Appellants,


R.R. DONNELLEY & SONS COMPANY, Defendant-Appellee.

No. 94-1424.

United States Court of Appeals, Seventh Circuit

December 15, 1994

Argued Oct. 7, 1994.

Page 440

Divina K. Westerfield, Westerfield & Associates, Carmel, IN, David W. Stone, IV (argued), Anderson, IN, for plaintiffs-appellants.

Richard H. Schnadig, C. Elizabeth Belmont (argued), Vedder, Price, Kaufman & Kammholz, Chicago, IL, for defendant-appellee.

Before CUMMINGS, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Jane Doe had been employed by R.R. Donnelley & Sons Co. ("Donnelley") in its printing and binding publishing facility in Crawfordsville, Indiana since 1983. After a period of intermittent, part-time employment, Ms. Doe worked full-time, from April 1985 until

Page 441

late December 1989, in the North Plant bindery, where she packaged and shipped her department's manufactured products. Charles Stewart was her supervisor during this time; he had authority over promotions. Ms. Doe alleges that Stewart made sexually harassing comments during that four-year period including: (1) commenting on her clothing; (2) asking her what she wore to the gym and at home and how she looked in the clothing; (3) commenting that she looked attractive and had lost weight; (4) patting her posterior on two occasions; (5) telling her at her annual evaluation never to have an affair at Donnelley because "it's not worth it; someone will always get burned." Ms. Doe never reported the incidents to another Donnelley manager or supervisor.

In late December of 1989, Ms. Doe was promoted to a production expediter position in the printing plate-making area located in the company's South Plant. At this point, Ms. Doe's contact with Mr. Stewart ceased. However, according to her complaint, harassment from co-workers began. On July 10, 1991, in a meeting concerning her discipline for tardiness with Donnelley's Human Resources Supervisor Anthony Malandro, Ms. Doe stated that co-worker Curt Buethe had left voice-mail messages for her in which he simulated heavy breathing. Mr. Malandro investigated the complaint. Despite Mr. Buethe's denial that he made such calls, Mr. Malandro placed an adverse notation in Buethe's personnel file and reminded Buethe that sexually harassing behavior was contrary to company policy.

Other incidents of sexual harassment were recounted in her complaint and at her deposition in this suit. 1 These incidents included: (1) beginning in early 1991 (approximately one year after Ms. Doe's transfer), a co-worker's repeated inquiries about her breast size; (2) from July 1992 until September 1992, a co-worker's statement that he liked to look at Ms. Doe's breasts; (3) somewhere between 1991 and September 1992, a co-worker's inquiry as to the type of lingerie Ms. Doe owned, and as to whether she tanned nude; (4) between October 1991 and September 1992, a co-worker's asking her on a date 5-10 times and giving her a note that explained various terms involving sexual intercourse; (5) in 1990, 1991 or 1992, a co-worker's asking Ms. Doe to have a drink and to go to a motel, and repeatedly requesting sexual intercourse; (6) from 1990 until her rape, a co-worker's repeated hugs and attempts to kiss her. Ms. Doe never reported these incidents to any Donnelley manager or supervisor. She alleges, however, that some of the harassment occurred in the view of Donnelley supervisors.

The complaint also alleges that, on September 10, 1992, Ms. Doe was raped on Donnelley's premises by an unknown assailant. Although the incident was reported to a police department in another part of the state, the alleged rape was not reported to the local authorities until three months after it had occurred. Donnelley did not know of the incident until informed of it by the plaintiff's attorney at the time that it was reported to the local authorities.



  1. District Court Proceedings

    Ms. Doe and her husband brought a four-count claim of sexual harassment in April of 1993. Liability was premised on hostile environment and quid pro quo employment discrimination under Title VII. Common law negligence and loss of consortium under state law were also alleged. The district court dismissed the negligence and loss of consortium claims, and granted summary judgment on the two sexual discrimination claims, 843 F.Supp. 1278. Because Ms. Doe's appeal is limited to the hostile environment

    Page 442

    issue, we shall limit our more extensive discussion to the district court's treatment of that issue.

    Relying on our decisions in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir.1993) and Saxton v. American Telephone & Telegraph Co., 10 F.3d 526 (7th Cir.1993), the district court first addressed the incidents that had taken place while Ms. Doe was working for Mr. Stewart in the North Plant and the "heavy breathing" incident involving Mr. Buethe during Ms. Doe's time at the South Plant. The court determined that these incidents, even if proven, would not rise to the level of actionable sexual harassment. The other incidents were regarded by the district court as more serious. However, the district court decided that the issue of liability with respect to these incidents turned not on whether they were sufficiently serious to rise to the level of a violation but on whether Donnelley was aware of the harassment and failed to take appropriate action with respect to it. Upon examination of the record before it, the district court concluded that no material issue of fact existed as to whether Ms. Doe had brought any of the alleged instances of misbehavior on the part of her co-workers to the attention of Donnelley. The court noted that absence of notice to the employer does not necessarily insulate the employer from liability. Nor does the existence of a grievance procedure and a policy against discrimination necessarily preclude a finding of liability. However, the court was of the view that, in this case, it was necessary that Donnelley have some notice or knowledge of liability in order to sustain the allegation of harassment against the company.

  2. Submissions of the Parties on Appeal

    Ms. Doe first takes issue with the district court's determination that the alleged incidents involving Mr. Stewart were not sufficiently serious to constitute sexual harassment. With respect to the conduct of fellow workers, she notes that the incidents were numerous and serious. The incidents were so pervasive, she continues, that the employer ought be held to constructive knowledge of them. The supervisors who did have knowledge of the incidents were line supervisors, and the company ought not be allowed to insulate itself from their knowledge of the conduct. There was no showing, she also declares, that she ever was informed of the anti-harassment policy of Donnelley. She did not report the incidents, she contends, because she did not know that she could do so. The record is "sketchy," she submits, as to the means employed by the employer to advise the employees of the anti-harassment policy. She also notes that the record contains her allegations that her husband reported several of these matters to two Donnelley supervisors. Ms. Doe also suggests, albeit rather obliquely, that the incidents with Mr. Stewart are linked to the incidents with her fellow employees and therefore constitute a continual violation of the law.

    Donnelley counters that the alleged incidents while Ms. Doe was working for Mr. Stewart are time-barred because no charge was filed during the requisite 300-day period. In the alternative, the company contends that the district court was correct in its ruling that the conduct of Stewart was not actionable. With respect to the acts of the other employees at the South Plant, Donnelley denies liability because it was never informed of them. Nor does Donnelley believe that it can be held liable on the theory that the acts were so pervasive that the company had to be on constructive notice of the incidents. Donnelley also submits that the plaintiff's alleged lack of knowledge of the company's policy against sexual harassment and its grievance procedure does not alter the company's legal liability. Donnelley contends that the plaintiff was aware of the policy against sexual harassment at the time of her report of the Buethe incident in July 1991. Further, Donnelley states that she was aware of the company's grievance procedure after May 1990 when she was disciplined for tardiness. This date was before the majority of the alleged incidents in the South Plant. Finally, the company also points out that it had no knowledge of the alleged rape until it was reported to the company by the plaintiff's lawyer three months after the incident occurred. There is no evidence of record that the rapist was in any way connected with the company.

    Page 443



    At the beginning of our analysis of the case, we pause to set forth in summary fashion the procedural and substantive standards that must guide our analysis.

  3. Standards Governing Summary Judgment

    The standards that govern the district court's consideration of a motion for summary judgment are well settled. We repeat them again because they are extremely important in the adjudication of this case. Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and the 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 judgment as a matter of law." As the district court explicitly noted, in ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See...

To continue reading