Koelsch v. Beltone Electronics Corp.

Decision Date06 February 1995
Docket NumberNo. 94-2506,94-2506
Citation46 F.3d 705
Parties66 Fair Empl.Prac.Cas. (BNA) 1697 Siobhan R. KOELSCH, Plaintiff-Appellant, v. BELTONE ELECTRONICS CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Robert J. Cozzi (argued), Thomas J. Doell, Galliani & Doell, Chicago, IL, for Siobhan R. Koelsch.

James S. Whitehead (argued), Lisa D. Freeman, Sidley & Austin, Chicago, IL, for Beltone Electronics Corp.

Before BAUER and KANNE, Circuit Judges, and SKINNER, * District Judge.

BAUER, Circuit Judge.

Siobhan Koelsch brought this suit pursuant to 42 U.S.C. Sec. 2000(e), complaining that she was subjected to sexual harassment by her employer, Beltone Electronics. The district court granted Beltone's motion for summary judgment. We affirm.

Koelsch worked for Beltone from April 1986 to November 1991. She alleges conduct on the part of Beltone's president, Lawrence Posen, and other Beltone employees which she believes constitutes sexual harassment. While Koelsch's brief demonstrates some confusion as to what facts support her separate theories upon which liability is premised, she alleges sexual harassment pursuant to three different theories: 1) hostile work environment; 2) retaliatory discharge; and 3) post-termination retaliatory harassment. In the course of discussing these three theories, we shall relate the relevant factual allegations appropriate to each theory. Because we are reviewing the grant of summary judgment, we view the factual allegations in the light most favorable to Koelsch, the non-movant.

With respect to the claim that Beltone subjected her to a hostile work environment, Koelsch alleges two separate incidents of sexual harassment in which Posen initiated unwelcome physical contact. The first occurred in late 1988 while Posen conducted a company meeting in the executive conference room. Posen removed his shoe and rubbed his foot against Koelsch's leg. Posen continued to stroke Koelsch's leg despite her demands that he stop. Finally, Koelsch got up from the table and left the room.

The second incident occurred while Koelsch and Posen were in the midst of a plant tour in April or May of 1990. During a stop in a sound-proof room, Posen grabbed Koelsch's buttocks. Again, she voiced her displeasure and left the room.

Sometime prior to the second incident, Posen told Koelsch that he found her attractive. After the second incident, in response to Koelsch's demand for an explanation for his behavior, Posen replied he could not control himself in her presence. Also around this time, Posen asked Koelsch to accompany him for either drinks or dinner on at least two occasions. Koelsch admits that Posen ceased all physical and verbal advances by the end of May 1990.

Koelsch did not file a complaint about her treatment by Posen with the Equal Employment Opportunity Commission ("EEOC") until April 8, 1992. In Illinois, a complainant must file a complaint within three hundred days of the alleged harassment. 42 U.S.C. Sec. 2000e-5(e); Lorance v. AT & T Technologies, Inc., 827 F.2d 163, 165 (7th Cir.1987), aff'd, 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989). Failure to do so renders the complaint untimely. Lorance, 827 F.2d at 165-66. Here, Posen's conduct occurred more than three hundred days prior to Koelsch's filing of her EEOC claim. Koelsch, therefore, is precluded from bringing a sexual harassment claim of a hostile work environment based solely on Posen's pre-1991 behavior.

Koelsch attempts to overcome the untimely filing of her EEOC complaint by alleging a different theory of recovery; she has alleged facts in addition to Posen's advances and argues that these facts, in conjunction with Posen's behavior, constitute a continuing violation of Title VII. See, e.g., Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994). "The continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period. For purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period." Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992). The additional facts alleged by Koelsch fail to demonstrate the existence of a hostile work environment, even under a continuing violation theory.

In addition to her personal encounters with Posen (and she admits that there were none other than those already described), Koelsch alleges that from time to time sexually suggestive and derogatory jokes were told by Beltone employees. She points to only two specific incidents to support this claim. First, she claims that Posen carries with him a picture, purportedly of Posen as a baby. It is not, however, just any baby picture; it has been doctored such that an adult penis has been strategically superimposed in an anatomically correct manner. Koelsch, though, has never seen the picture. She "heard" about it from fellow employees and only gained confirmation from the deposition testimonies of company executives.

Koelsch claims that the second incident occurred at a company party at which two employees requested that a group of employees which included Koelsch donate pubic hairs, purportedly for a collection taken up as a birthday gift for Posen. While the record is less than clear with respect to this incident (the only reference to it is in Koelsch's Local Rule 12(n) statement), Koelsch apparently ignored the request. These are the only concrete examples of this alleged hostile work environment. Otherwise, Koelsch stands on her vague assertion that jokes of a sexual nature were told in the workplace.

Koelsch's claim of a hostile work environment fails for two reasons. First, to assert a successful continuing violation claim, the facts alleged to have occurred within the three-hundred-day period must be "related closely enough" to the prior acts such that they are to be considered one ongoing violation. Doe, 42 F.3d at 446. In other words, there must be a sufficient nexus between Posen's advances and the sexually suggestive joking.

Koelsch cannot demonstrate such a nexus. The two specific incidents on which Koelsch relies involve Posen only at the extreme periphery; she stated that Posen purposely avoided her soon after the sound-proof booth incident. In addition, her vague assertions of joke-telling do not implicate Posen in any way. Consequently, there is no connection between Posen's advances and the joke-telling and Koelsch's continuing violation claim fails.

Second, even if she could demonstrate the necessary nexus, her allegations do not reflect a hostile work environment as proscribed by the statute. To maintain a claim of a hostile work environment, Koelsch must allege conduct that was "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). Isolated and innocuous incidents do not support a finding of sexual harassment. Doe, 42 F.3d at 440. The crude conduct Koelsch alleges is simply not severe or pervasive enough to render hers a hostile work environment.

Posen's conduct, while offensive, was comprised of two seemingly isolated incidents after which Posen kept his distance from Koelsch. We have previously held that similar behavior is not actionable. See, e.g., Saxton v. American Telephone and Telegraph Co., 10 F.3d 526, 533-34 (7th Cir.1993) (finding that two incidents of misconduct by a supervisor involving inappropriate remarks and impermissible touching of a female employee did not create a hostile work environment); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir.1993) (finding that a male co-worker's conduct consisting of several incidents of unwanted touching, attempts to kiss, placing "I love you" signs in her work area, and asking a female employee out on dates did not create a hostile work environment). Further, even considering Posen's advances along with Koelsch's allegations of the...

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