Zimmerman v. Cook County Sheriff's Dept.

• Decision Date: 06 November 1996
• Docket Number: No. 96-1298,96-1298
• Citation: 96 F.3d 1017
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1537, 68 Empl. Prac. Dec. P 44,271, 65 USLW 2255 Michelle ZIMMERMAN, Plaintiff-Appellant, v. COOK COUNTY SHERIFF'S DEPARTMENT, Michael F. Sheahan, and Sheriff of Cook County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1017

96 F.3d 1017

71 Fair Empl.Prac.Cas. (BNA) 1537,

68 Empl. Prac. Dec. P 44,271, 65 USLW 2255

Michelle ZIMMERMAN, Plaintiff-Appellant, v. COOK COUNTY SHERIFF'S DEPARTMENT, Michael F. Sheahan, and Sheriff of Cook County, Defendants-Appellees.

No. 96-1298.

United States Court of Appeals Seventh Circuit.

Argued Aug. 7, 1996.

Decided Sept. 24, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Nov. 6, 1996.

Anthony S. DiVincenzo, Campbell & DiVincenzo (argued), Chicago, IL, for Plaintiff-Appellant.

John J. Murphy (argued), Rohit Sahgal, Office of the State's Attorney of Cook County, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

Michelle Zimmerman, the plaintiff in this Title VII sexual harassment case, was employed as a correctional officer by the Cook County Sheriff's Department. Early in August of 1992 a fellow officer, Salvatore Terranova, began to harass her sexually. His campaign of harassment, which included repeated references to his "big dick," culminated on August 14 when he placed a zucchini between his legs and thrust it against the plaintiff's buttocks. Three days later, the plaintiff submitted a memorandum to her supervisor in which she requested a change in work assignment because of "a severe personality conflict at my present job." Without investigating the plaintiff's request, her supervisor turned it down the next day. As it happens, the plaintiff had previously complained about a personality conflict with a female officer named Lichtenstein, and her supervisor assumed that her memorandum of August 17--which did not state with whom she was having a personality conflict--concerned a recurrence of the conflict with Lichtenstein. The following day, August 19, the plaintiff was temporarily assigned to another part of the building, and at that time her supervisor told her that she and Lichtenstein would have to be separated because of their personality conflict. The plaintiff replied that her problem was not with Lichtenstein, but she did not reveal the nature of the problem or whom it involved. The next day she was reassigned to the same part of the building as the harasser, Terranova, and he immediately resumed his harassment of her. The campaign escalated. On August 24, he grabbed one of her breasts, grabbed and rubbed her buttocks, and grabbed her by her wrists and yanked her arms down, injuring one of her arms. On August 25 and 26, she submitted detailed memoranda concerning the incidents of the twenty-fourth to her superiors. They conducted an investigation that exonerated Terranova, but meanwhile they made sure he was separated from the plaintiff at work. Shortly afterward she went on disability leave, and she did not return to her job for a year. She and Terranova had no further contact after August 24. She filed criminal charges against him arising out of the incidents of that day; and despite his having been exonerated by the internal investigation, he was convicted of sexual assault.

The district judge granted summary judgment for the defendants on the ground that until August 25, which was too late, they had had no reason to think the plaintiff was being sexually harassed and therefore no duty to protect her from Terranova. The liability of an employer for sexual harassment by one nonsupervisory employee of another is not strict. The plaintiff must prove that the employer was negligent in having failed to discover and prevent it. E.g., Baskerville v. Culligan Int'l Co., 50 F.3d 428, 432 (7th Cir.1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446-47 (7th Cir.1994); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1422 (7th Cir.1986); Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1346 (10th Cir.1990). The sheer pervasiveness of the harassment might support an inference that the employer must have known of it, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986), as might a complaint from someone other than the victim. E.g., McDonnell v. Cisneros, 84 F.3d 256 (7th Cir.1996); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 783-84 (10th Cir.1995). But when, as in this case, the only possible source of notice to the employer--in the absence of an Orwellian program of continuous surveillance, not yet required by the law, see generally J. Hoult Verkerke, "Notice Liability in Employment Discrimination Law," 81 Va. L.Rev. 273, 345-46, 365-67 (1995)--is the employee who is being harassed, she cannot withstand summary judgment without presenting evidence that she gave the employer enough information to make a reasonable employer think there was some probability that she was being sexually harassed. See, e.g., Juarez v. Ameritech Mobile...