Hardin v. S.C. Johnson & Son, Inc.

• Decision Date: 15 March 1999
• Docket Number: No. 98-2058,98-2058
• Citation: 167 F.3d 340
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1542, 74 Empl. Prac. Dec. P 45,738, 75 Empl. Prac. Dec. P 45,738 Katie R. HARDIN, Plaintiff-Appellant, v. S.C. JOHNSON & SON, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 340

167 F.3d 340

78 Fair Empl.Prac.Cas. (BNA) 1542,

74 Empl. Prac. Dec. P 45,738,

75 Empl. Prac. Dec. P 45,738

Katie R. HARDIN, Plaintiff-Appellant, v. S.C. JOHNSON & SON, INC., Defendant-Appellee.

No. 98-2058.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 9, 1998.

Decided Jan. 28, 1999.

Rehearing and Suggestion for Rehearing En Banc Denied March

15, 1999.

Willie J. Nunnery (argued), Madison, WI, for Plaintiff-Appellant.

Bernard J. Bobber (argued), Foley & Lardner, Milwaukee, WI, for Defendant-Appellee.

Before FLAUM, EASTERBROOK and DIANE P. WOOD, Circuit Judges.

FLAUM, Circuit Judge.

Before us is Katie R. Hardin's ("Hardin") appeal from the district court's grant of summary judgment to S.C. Johnson & Son, Inc., ("S.C.Johnson") on her Title VII sexual and racial harassment claims and her 42 U.S.C. § 1981 claim. The district court adopted the recommendation of Magistrate Judge Goodstein, who found that although Ms. Hardin was mistreated by an obnoxious co-worker, her case could not survive the defendant's motion for summary judgment. For the reasons discussed below, we affirm the district court's decision.

FACTS

Katie Hardin was hired by S.C. Johnson at its Sturtevant, Wisconsin plant as an hourly worker in 1972. Starting in 1988, she changed production lines, and began working with and for Nels Anderson. By all accounts, Anderson was a crude and boorish person, prone to offensive language and behavior. In the time they worked together, Anderson often used expletives, directed at Hardin and other workers, and berated them with statements like "get your head out of your ass" or "dumb motherfucker." Hardin also alleges that on numerous occasions, Anderson touched her. Although she says the touching lasted between a few and thirty seconds, her complaint does not specify where or in what manner Anderson touched her. A year after transferring to Anderson's line, Hardin and her coworkers complained to a supervisor, who told Anderson his profanity was inappropriate for the workplace.

Anderson apparently did not get the message, and continued using foul language and behaving crudely. Hardin proffers the affidavit of Anderson's ex-girlfriend, who stated that between 1991 and 1994, Anderson routinely referred to Hardin and other black women as "stupid black bitches," "stupid niggers," and "black cunts," although Hardin does not assert Anderson made such statements to her. Hardin does offer evidence that Anderson continued to curse at her and other factory employees. In 1993 and again in 1995, Hardin complained to management about Anderson's behavior. Each time the company met with her, and responded to her complaints by reiterating its warnings to Anderson about his inappropriate behavior. S.C. Johnson also told Anderson to avoid the plaintiff unless he absolutely had to speak to her.

In her 1995 complaint to the company, Hardin asserted that she was being treated poorly because she was a black woman. In addition to the cursing and touching, she complained that Anderson startled her by driving up behind her in an electric cart without warning, letting a door slam in her face, and cutting her off in the parking lot. An investigation by S.C. Johnson's human resources director found that no other African-American employees believed they were being discriminated against on the basis of race, although it turned up evidence that a number of white men on the line felt they were mistreated by Anderson.

Additional complaints in 1995, including one to the president of S.C. Johnson, William Perez, resulted in Anderson being transferred to another production line. On June 1, Hardin learned that Anderson was temporarily re-assigned to work on her line during the June 3 overtime shift. Hardin opted not to work that day, a decision for which she was not penalized. Two days later, S.C. Johnson promised that they would rarely be assigned to the same line again, but that if that came to pass, Hardin would be informed ahead of time, and would be given the option to demur from working with Anderson.

On June 13, 1995, Hardin filed a complaint with the Wisconsin Department of Industry, Labor and Human Relations' Equal Rights Division ("ERD"). She received a right to sue letter on September 8 of that year, and brought her cause of action. The magistrate judge ruled in favor of S.C. Johnson, and the

district court approved of that decision. This appeal followed.

ANALYSIS

The district court's decision to grant summary judgment to the defendant is reviewed de novo. Chmiel v. J.C. Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir.1998). It is appropriate only where the non-moving party fails to set forth specific facts showing that there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e); Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir.1997). Although we must draw all reasonable inferences in Hardin's favor, NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.1995), not every factual dispute creates a barrier to summary judgment. Only disputes that might affect the outcome of the suit under our precedent will properly preclude the entry of summary judgment. Derrico v. Bungee Intern. Mfg. Co., 989 F.2d 247, 250 (7th Cir.1993).

With this standard in mind, we review the record to ascertain whether Hardin presented evidence giving rise to a triable claim. First, however, we must determine what of the evidence Hardin proffered we may use in reaching our ultimate conclusion.

I.

S.C. Johnson argues that Hardin is time-barred from relying on any evidence of harassment occurring prior to August 16, 1994--300 days before her complaint with the Wisconsin ERD. Under Title VII, a plaintiff has 300 days from the occurrence of an allegedly discriminatory act in which to file a timely charge either with the federal Equal Employment Opportunity Commission or the appropriate state agency--here the ERD. Generally, a plaintiff is only allowed to base a Title VII suit on conduct occurring within the limitations period. Galloway v. General Motors Service Parts Oper., 78 F.3d 1164, 1166 (7th Cir.1996).

A particular exception to this is the "continuing violation doctrine" which this court has recognized on a multitude of occasions. Dasgupta v. University of Wisconsin Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir.1997); Galloway, 78 F.3d at 1166 (collecting cases). This doctrine is designed to "accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered ... timely." Peatzold & O'Leary, Continuing Violations and Hostile Environment Sexual Harassment: When is Enough, Enough?, 31 A M. B US. L.J. 365 (1994).

When it would be unreasonable to expect the plaintiff to perceive offensive conduct as Title VII harassment before the limitations period runs, or the earlier discrimination may only be recognized as actionable in light of "events that occurred later, within the period of the statute of limitations" the continuing violation doctrine applies. Galloway, 78 F.3d at 1167. The doctrine also may be used when, after an initial incident of discrimination, a plaintiff does not feel "sufficient distress to ... mak[e] a federal case." Id. at 1166.

On the other hand, the continuing violation doctrine has delineated limits. Where a pattern of harassment spreads out over years, and it is evident long before the plaintiff sues that she was a victim of actionable harassment, she "cannot reach back and base her suit on conduct that occurred outside the statute of limitations." Id. at 1167; Doe v. R.R. Donnelley & Sons., Co., 42 F.3d 439, 446 (7th Cir.1994). While a single comment may not be harassment, if the comment is repeated over a period of years, its cumulative effect likely precludes invocation of the doctrine. See Galloway, 78 F.3d at 1167.

It is clear from Ms. Hardin's evidence that the continuing violation doctrine is inapplicable here. The evidence advanced in support of the plaintiff's motion for summary judgment shows that Anderson began directing rude and offensive behavior--brief touching, coarse language and statements to the plaintiff that she should move off of Anderson's line--toward Hardin in 1988. Hardin testified that she felt harassed as early as 1988. She verbally complained to management in 1989, and filed a written complaint with S.C. Johnson's human resources department in 1993. It is apparent that Hardin believed that she was a victim of harassment long before she filed her complaint with the Wisconsin ERD; it follows that it would not have been unreasonable for her to seek redress for this conduct by filing before June 1995. Accordingly, in her Title VII claims, she may not reach back and rely on evidence occurring prior to 300 days before she filed her complaint. Her racial and sexual harassment complaints must stand or fall on conduct occurring between August 16, 1994 and June 12, 1995, although her 42 U.S.C. § 1981 claim has a six year statute of limitations.

For purposes of the Title VII claim, this eliminates the most damaging evidence of harassment by Anderson. These alleged racist statements to Brannon about the plaintiff happened prior to the limitations period, and thus are irrelevant. There are other problems with those proffered statements--they were made outside of the workplace, and Ms. Hardin admittedly knew nothing of them. We note, however, that were such noxious statements relevant to the record we considered--if in fact Anderson spoke them in the workplace or to Hardin's face within the limitations period--the thrust of this opinion could be markedly different.

II.

Title VII's ban on gender discrimination is violated when "discrimination based on sex ... creates a hostile or abusive work environment." Meritor Savings Bank v. Vinson, 477...