Jackson v. County of Racine

• Decision Date: 25 January 2007
• Docket Number: No. 05-4071.,No. 05-4070.,No. 05-4072.,05-4070.,05-4071.,05-4072.
• Citation: 474 F.3d 493
• Parties: Brenda JACKSON, Sherri Lisiecki, Patricia Birchell-Sielaff, and Estate of Linda R. Schultz, Plaintiffs-Appellants, v. COUNTY OF RACINE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.3d 493

Brenda JACKSON, Sherri Lisiecki, Patricia Birchell-Sielaff, and Estate of Linda R. Schultz, Plaintiffs-Appellants, v. COUNTY OF RACINE, Defendant-Appellee.

No. 05-4070.

No. 05-4071.

No. 05-4072.

United States Court of Appeals, Seventh Circuit.

Argued February 23, 2006.

Decided January 25, 2007.

COPYRIGHT MATERIAL OMITTED

Sandra G. Radtke (argued), Gillick, Wicht, Gillick & Graf, Tricia L. Knight (argued), Knight & Associates, Milwaukee, WI, for Plaintiffs-Appellants.

Joanne Breese-Jaeck (argued), Anthony P. Hahn, Hostak, Henzl & Bichler, Racine, WI, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Brenda Jackson, Sherri Lisiecki, Patricia Birchell-Sielaff, and Linda Schultz worked at the Child Support Division (CSD) of Racine County, Wisconsin. While there, they assert, they were subjected to constant sexual harassment from CSD's Division Manager, Robert Larsen. The first three women filed lawsuits based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Estate of Linda R. Schultz did likewise. The parties agreed to consolidate the cases for purposes of discovery and to permit the magistrate judge to handle them, see 28 U.S.C. § 636(c). After evaluating the parties' submissions on the County's motion for summary judgment, the district court concluded that the conduct in question was not serious or pervasive enough to create an actionable hostile work environment; it did not reach the County's affirmative defense under Burlington Industries Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). We conclude that, although genuine issues of fact are present with respect to the existence of sexual harassment, the County is entitled to prevail on its affirmative defense. We therefore affirm.

I

We present the facts in the light most favorable to the plaintiffs. Larsen was the Division Manager of CSD from approximately October 1, 2000, to June 26, 2001. Jackson and Birchell-Sielaff were supervisors; Schultz was an assistant supervisor, and Lisiecki worked under Jackson's supervision. The workforce as a whole at CSD was approximately 85% female. Racine County had in place a policy prohibiting sexual harassment, which read as follows in pertinent part:

(1) It is illegal and against the policies of the county for any employee, male or female, to sexually harass another employee by:

a. Making unwelcome sexual advances, or

b. Making requests for sexual favors or other verbal or physical conduct of a sexual nature, a condition of employment, or

c. Making submission to or rejection of such conduct the basis for employment decisions affecting the employee, or

d. Creating an intimidating, hostile or offensive working environment by such conduct.

Examples of prohibited conduct include, but are not limited to, loud or sexually suggestive comments; sexual flirtations, touching, advances, or propositions; off-color language or jokes of a sexual nature; slurs and other verbal, graphic or physical conduct relating to an individual's gender; or any display of sexually explicit pictures, greeting cards, articles, books, magazines, photos or cartoons.

The policy also established an anti-harassment committee and set up procedures that any employee who felt harassed could use. It concluded by providing that it was to be communicated to employees annually and that it was to be posted on appropriate bulletin boards throughout the county.

Within weeks of Larsen's appointment to the position of Director, he began to engage in inappropriate conduct toward the female employees in the CSD; he did not engage in similar behavior toward the male employees. Some of this behavior was rude or intimidating. For example, Larsen would slam a door in a threatening way to demonstrate his anger with Birchell-Sielaff, Schultz, or Jackson. He also interrupted meetings that they were holding with their subordinates, publicly chastising them and yelling at them. He forced supervisors to work long hours and to maintain heavy work loads, leaving them exhausted.

Some of his behavior was more overtly sexual. We begin with Jackson. Once, when she asked for Larsen's help in unjamming a stapler, he commented that she had "a great set of boobs." Indeed, Larsen not only made remarks like this on a daily basis; he also constantly sent sexual jokes to Jackson as well as others in the office. On one occasion, Jackson told Larsen that she could not paint because she had carpal tunnel syndrome. Larsen responded, "Can you do this?" and proceeded to simulate masturbation, stating, "Because that's the only important one." In addition, Larsen frequently made comments to Jackson about his sex life with his wife. In a more juvenile vein, he often sidled up to women and asked "Can I give you a kiss," while offering a chocolate Hershey's kiss to them. Nor did he stop with that. On two occasions he wet his finger and stuck it in Jackson's ear while blowing in her ear. On one occasion, when Jackson was trying to apologize to Larsen for returning late from lunch, he placed his arm around her and kissed her on the lips.

Lisiecki was subjected to similarly offensive behavior. Larsen touched her constantly, on her neck, shoulders, hair, and arms. As with Jackson, on several occasions Larsen stuck a wet finger in her ear and blew on it. He also made inappropriate comments about each woman's clothing, suggesting on a hot day to Lisiecki that she could come to work in her bikini. He told her once that he would love to be under her desk. Finally, Lisiecki claims that Larsen told her that she might be promoted, implying that the promotion would occur if he could "take liberties with her." When she refused his crude invitation, he no longer discussed her promotion. In fact, Larsen had no authority to create a management position for Lisiecki.

To Birchell-Sielaff, Larsen made constant remarks about the way various women looked in their clothing, including remarks about their breasts. He also gave out the Hershey's kisses during meetings that she conducted. He repeatedly told her about his sexual interest in various female employees, as well as his exploits with his wife.

Schultz, who passed away before this suit was filed, was also the target of Larsen's unwanted attentions, including the unwanted Hershey's kisses, jokes, emails, comments about her appearance in certain clothing, and leering. If Larsen saw her eating her morning breakfast of a banana, he commented that he liked watching her eat.

Within a month of Larsen's assumption of his job, Birchell-Sielaff complained to Marta Kultgen, Racine County's Human Resource Manager since 2000, about Larsen's "kiss" routine and how unpleasant it was to work with Larsen. Kultgen took no action in response to this complaint other than to maintain contact with Birchell-Sielaff. Between October 2000 and February 2001, Birchell-Sielaff complained frequently about Larsen, but she did not indicate that she was concerned about sexual harassment.

The first time that Kultgen was alerted to a problem with sexual harassment came in a February 14, 2001, telephone call from Birchell-Sielaff, in which Birchell-Sielaff reported that "some" CSD employees had complained about Larsen's inappropriate sexual comments. Kultgen replied that she would need to look into this, as it might involve a violation of the County's anti-harassment policy. Although Birchell-Sielaff was initially reluctant to provide the name of the person who had complained, she eventually gave Kultgen one name and claimed that she did not know if anyone else was experiencing similar problems.

Kultgen followed up with the employee Birchell-Sielaff had identified, who confirmed that Larsen had made an unwelcome sexual remark to the effect that "now you can go home and tell your husband you went up and down with Bob in the office." The employee told Kultgen that she did not want to file an internal complaint of sexual harassment.

On February 15, Birchell-Sielaff contacted Kultgen again and gave her Lisiecki and Jackson's names as additional possible victims of Larsen's sexual harassment. Again, Kultgen acted promptly. She contacted Jackson, who confirmed that Larsen had indeed been engaging in the behaviors detailed above. Kultgen emphasized to Jackson how important it was to report this kind of behavior and asked whether Jackson wanted to file a formal complaint. Jackson declined, saying that Larsen's behavior had improved since she told him that his conduct was unwelcome. Kultgen also contacted Lisiecki, but the latter declined to provide any details about Larsen's behavior toward her. She did admit that there had been an unwelcome touching at one point and that Larsen had promised her a promotion that had not materialized after she refused his advances. Kultgen explained that, regardless of Larsen's statements or behavior, there was no vacant management position for which Lisiecki was qualified and that Larsen lacked the authority to make a promotion on his own. Like the others, Lisiecki did not want to file a formal complaint. Kultgen also contacted several other people.

On February 23, 2001, the Anti-Harassment Committee met. The members included Kultgen, Matthew McVey (an assistant corporation counsel), and Connie Mallwitz (a lieutenant with the Sheriff's Department). In light of the lack of any formal complaints before it, the committee concluded that there was nothing at that point for it to do, apart from counseling Larsen about sexually inappropriate behavior. The committee also sent letters to the women Kultgen had met, in order to confirm the fact that they did not wish to complain. Those letters spelled out the procedures that should be followed if they wished to report any further allegations of sexual harassment.

A few months later, on April 27,...