84 F.3d 256 (7th Cir. 1996), 95-1864, McDonnell v. Cisneros

Docket Nº:95-1864.
Citation:84 F.3d 256
Party Name:Mary Pat McDONNELL and Thomas W. Boockmeier, Plaintiffs-Appellants, v. Henry G. CISNEROS, Secretary of Housing and Urban Development, Defendant-Appellee.
Case Date:May 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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84 F.3d 256 (7th Cir. 1996)

Mary Pat McDONNELL and Thomas W. Boockmeier, Plaintiffs-Appellants,

v.

Henry G. CISNEROS, Secretary of Housing and Urban

Development, Defendant-Appellee.

No. 95-1864.

United States Court of Appeals, Seventh Circuit

May 20, 1996

Argued Jan. 12, 1996.

Page 257

David P. Schippers (argued), James M. Bailey, Schippers & Bailey, Chicago, IL, for Plaintiff-Appellant.

Thomas P. Walsh, Matthew D. Tanner (argued), Office of the U.S. Atty. Gen., Civ. Div., Chicago, IL, for Defendant-Appellee.

Before POSNER, C.J., and BAUER and KANNE, Circuit Judges.

POSNER, Chief Judge.

These two consolidated suits, brought under Title VII of the Civil Rights Act of 1964, charge sexual harassment by HUD, the plaintiffs' employer, and also retaliation for complaining about the alleged harassment. The district judge granted HUD's motion to dismiss for failure to state a claim, so we take as true (of course without vouching for) the facts alleged in the complaint, which are as follows. In July 1993 the Secretary of Housing and Urban Development received an anonymous letter accusing employees in HUD's Chicago office of job-related sexual misconduct. The particular targets of the accusation were plaintiff Boockmeier, HUD's Regional Inspector General for Investigations, and plaintiff McDonnell, the Assistant Regional Inspector General for Investigations and thus Boockmeier's subordinate. Among the lurid charges was that McDonnell was Boockmeier's "in-house sex slave," who provided sexual favors to him in exchange for more rapid promotion and other preferential treatment. The plaintiffs believe that the letter, and a follow-up letter that repeated the charges in the original letter, were the work of a disgruntled employee in HUD's Office of Inspector General who wanted to ruin both plaintiffs' careers.

After receiving the second letter, HUD began an investigation of the two plaintiffs. Because they were employed in the Inspector General's office, which would normally conduct such an investigation, HUD retained investigators from the Defense Department.

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They interviewed the plaintiffs and other employees of the Inspector General's Office in a hostile and unprofessional manner, indicating to the persons they interviewed their personal belief that the plaintiffs were guilty of the charges made in the anonymous letters. The manner in which the investigation was conducted gave rise to even more lurid rumors, widely circulated within HUD, including rumors of incest and other sexual deviance on the part of Boockmeier and a rumor that Boockmeier was the true father of McDonnell's child. These rumors made the plaintiffs pariahs. Male employees of HUD shunned McDonnell, female employees Boockmeier.

The investigation was completed in November of 1993 and completely exonerated both plaintiffs. Nevertheless they were advised by their superiors not to travel together or meet behind closed doors alone, lest they encourage a "perception" of sexual activity. Both during and after the investigation the plaintiffs complained to their superiors about the manner in which it was being conducted and demanded an investigation to determine the identity of their anonymous denouncer. Their superiors did nothing. On November 29, several weeks after he had filed an informal complaint that the treatment by the investigators constituted a form of sexual harassment forbidden by Title VII, Boockmeier was reassigned to HUD's Washington office for 90 days, ostensibly to dilute any perception that he had a sexual relationship with McDonnell.

In March of the following year, after McDonnell had filed and refused to withdraw similar (but formal) complaints on her own behalf, Boockmeier was told that his reassignment to Washington was being made permanent as a punishment for his having failed to control his subordinate--that is, to get McDonnell to drop her complaints. This sequence is the basis of Boockmeier's claim of retaliation.

McDonnell also claims retaliation, and let us start there. She claims that management ostracized, disdained, and ridiculed her in retaliation for her having filed complaints. We do not doubt that anger, irritation, dirty looks, even the silent treatment, can cause distress and by doing so discourage complaints; and in other contexts even rather petty attempts at humiliation, if sufficient to deter the exercise of a right, have been held to be actionable as infringements of rights, for example the right of free speech. Wallace v. Benware, 67 F.3d 655, 663-64 (7th Cir.1995); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982); Scott v. Flowers, 910 F.2d 201, 204, 213 (5th Cir.1990); Allen v. Scribner, 812 F.2d 426, 434 n. 17 (9th Cir.), modified, 828 F.2d 1445 (1987). There is, however, a tension in the cases (including the cases of this court) with respect to whether more is required in a retaliation case under Title VII (or under any of the other federal employment discrimination statutes that are modeled on Title VII, such as the Age Discrimination in Employment Act), the more being something that can be described as a "materially adverse employment action." Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994); see also Reed v. Shepard, 939 F.2d 484, 493 (7th Cir.1991); Wu v. Thomas, 996 F.2d 271, 273-74 (11th Cir.1993); cf. Nelson v. Upsala College, 51 F.3d 383, 388-89 (3d Cir.1995). Other cases, notably Passer v. American Chemical Soc'y, 935 F.2d 322, 331 (D.C.Cir.1991), reject this limitation. See also Edwards v. Board of Regents, 2 F.3d 382 (11th Cir.1993). Collins v. Illinois, 830 F.2d 692, 702-04 (7th Cir.1987), another of our cases, straddles the divide, by defining the required adverse job action very broadly. For a helpful review of the case law, see Boyd v. Brookstone Corp. of New Hampshire, Inc., 857 F.Supp. 1568 (S.D.Fla.1994).

No limiting language appears in Title VII's retaliation provision. 42 U.S.C. § 2000e-3(a). The language of "materially adverse employment action" that some courts employ in retaliation cases is a paraphrase of Title VII's basic prohibition against employment discrimination, found in 42 U.S.C. §§ 2000e-2(a)(1) and (2). Under these provisions, there is no actionable discrimination without something that can be described as an adverse employment action--"discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment," as subsection 2(a)(1) puts it, or "limit[ing], segregat[ing], or classify[ing] ... employees or applicants for employment in any way that would deprive or tend to

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deprive any individual of employment opportunities or otherwise adversely affect his status as an employee," as subsection 2(a)(2) puts it. The provision regarding retaliation may intentionally be broader, since it is obvious that effective retaliation against employment discrimination need not take the form of a job action. Shooting a person for filing a complaint of discrimination would be an effective method of retaliation, though, as Nelson points out, 51 F.3d at 388, the victim of the retaliation would have other, and more powerful, remedies than a suit under Title VII. This would be a reason for confining the provision to retaliation that takes the form of an adverse job action. How serious the adversity need be is a separate question, also difficult.

We need not try to sort out the tangle here. The complaint shows that there was no causal connection between McDonnell's filing of the complaints and the alleged retaliation against her, so it becomes irrelevant whether the retaliation reached the level of severity at which the statute is triggered. The allegedly retaliatory conduct was merely the continuation of the conduct giving rise to the complaints. The basis of the complaints was that in response to groundless charges of sexual misconduct HUD subjected McDonnell to ostracism, disdain, and ridicule and that these things continued after her formal exoneration. In other words, nothing changed when she filed her complaints. There was no ratcheting up of the harassment. Therefore the complaints could not have been the cause of the ostracism, disdain, and ridicule of which she complains in the retaliation count.

We can imagine an argument that these things would have petered out but for her complaints, which revitalized them. But the argument is not made. On the contrary, McDonnell's underlying claim of sexual harassment includes the entire course of humiliation that she was subjected to both before and after she complained of the harassment. The complaints' incremental effect on the amount or intensity of the humiliation to which she was subjected was by her own account zero.

Boockmeier has a solider retaliation claim, to which we shall return after addressing the underlying claim of sexual harassment. The two types of claim, harassment (or other employment discrimination) and retaliation for complaining about or opposing the harassment, are independent. It is improper to retaliate for the filing of a...

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