Lanning v. Gateway Tech. Coll.

• Decision Date: 10 July 2020
• Docket Number: Case No. 19-CV-890
• Parties: CARISSA LANNING, Plaintiff, v. GATEWAY TECHNICAL COLLEGE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

CARISSA LANNING, Plaintiff, v. GATEWAY TECHNICAL COLLEGE, Defendant.

Case No. 19-CV-890

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

July 10, 2020

DECISION AND ORDER GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

1. Background

In the Spring of 2016 Carissa Lanning enrolled as a student at Gateway Technical College, a post-secondary technical college that is part of the Wisconsin Technical College System. (ECF No. 59, ¶¶ 1-3¹.) In December of 2016 Gateway hired her as a"student casual" employee in its information technology (IT) department. (ECF No. 59, ¶¶ 27-29.) It provided her with a letter of employment indicating a term of employment from December 12, 2016, through August 30, 2017. (ECF No. 59, ¶¶ 28-29.) In August of 2017 Gateway tendered to Lanning a second employment letter, extending her employment through 2017. (ECF No. 59, ¶ 35.) These letters identified Lanning's supervisor as IT Director Eric Doherty and Lanning's contact person as Technology Support Coordinator Marvin Campbell. (ECF No. 59, ¶¶ 24, 25, 30, 36.)

As a student casual Lanning worked with Computer Support Technicians Felicia Edwards, Calvin Harris, and Assad Assad (ECF No. 59, ¶ 41), each of whom could assign tasks to the student casual employees (ECF No. 64, ¶ 4). Lanning alleges that during her employment she was repeatedly subjected to sexually harassing and assaultive behavior from Assad. In March of 2017 Assad commented on Lanning needing to pump breastmilk at work and stated that she should be at home with her child rather than at work. (ECF No. 59, ¶ 82.) He commented that Lanning had a "nice ass" (ECF Nos. 64, ¶ 23; 59, ¶ 84), and beginning in the summer of 2017 he would slap and squeeze her buttocks (ECF No. 59, ¶ 85; see also ECF No. 64, ¶ 24).

In the fall of 2017 Assad sent Lanning a Snapchat photograph of his genitals. (ECF Nos. 59, ¶ 91; 64, ¶ 28.) Assad also touched Lanning's breasts and genital area over her clothing (ECF No. 64, ¶¶ 25-26), and once attempted to reach under her shirt and into her pants, which Lanning prevented (ECF No. 64, ¶ 27). (ECF No. 59, ¶ 92.) AroundOctober 26, 2017, Asad told Lanning that one day he was going to tie her down and rape her. (ECF No. 59, ¶ 93.) A few days later, Lanning observed Assad looking at guns and ammunition on his work computer. (ECF No. 59, ¶ 94.)

These events—Assad's rape threat and him viewing weapons—led Lanning to report Assad's sexual harassment to her fiancé on November 2, 2017. (ECF No. 59, ¶ 96.) The same day Lanning contacted the Racine Police Department and reported Assad's conduct. (ECF No. 59, ¶ 101.)

Also on November 2, 2017, Lanning reported the harassment to her fiancé's mother, Clarista Phifer, who was an instructor at Gateway. (ECF No. 59, ¶¶ 97-98.) Phifer contacted Gateway's Dean of Service Occupations, Terry Simmons. (ECF No. 59, ¶ 99.) Simmons, in turn, contacted Gateway's Associate Vice President of Facilities and Security, Tom Cousino, who immediately reported the alleged conduct to Debbie Miller, Gateway's Title IX Coordinator. (ECF No. 59, ¶ 100.)

The next day, Gateway's Compliance Manager, Josh Vollendorf, began an investigation into Lanning's complaint (ECF No. 59, ¶ 108), the first step of which was to interview Lanning (ECF No. 59, ¶ 110). Following that interview, Gateway suspended Assad, instructed him to not come to campus, and notified its security staff to alert police if Assad was seen on campus. (ECF No. 59, ¶¶ 112-14.) The investigation, which lasted until November 17, 2017, included interviews of twelve witnesses, includingAssad. (ECF No. 59, ¶ 116.) Assad either denied or said he could not recall having engaged in the conduct alleged by Lanning. (ECF No. 59, ¶ 117.)

Vollendorf prepared a report outlining his conclusions regarding the investigation. (ECF No. 59, ¶ 121.) "Gateway concluded that it was more likely than not that Assad subjected Lanning to unwelcome sex-based verbal statements and made unwelcome physical contact with her, which created a hostile environment for Lanning and violated Gateway's policy prohibiting Sexual Assault, Misconduct, and Harassment." (ECF No. 59, ¶ 122.) As a result, Gateway terminated Assad's employment on November 17, 2017. (ECF No. 59, ¶ 123.) Gateway informed Lanning that it had terminated Assad. (ECF No. 59, ¶ 124.) Lanning resigned from her position in late December 2017. (ECF No. 59, ¶ 136.)

Two and a half years later, on June 17, 2020, Lanning filed this lawsuit. (ECF No. 1.) In her amended complaint she alleges that Assad was her supervisor and would make "unwelcome, offensive, and harassing sexual statements to Plaintiff," "nonconsensual and violent sexual contact," and "sexual advances." (ECF No. 18, ¶¶ 117-19.) "In response to Plaintiff's refusal of Assad's unwanted sexual advances, Assad reassigned Plaintiff's work assignments," which she alleges constitutes quid pro quo sexual harassment. (ECF No. 18, ¶¶ 121-24.) She also alleges that Gateway knew or should have known of Assad's conduct but failed to take any action. (ECF No. 18, ¶ 125-32.) These actions, Lanning alleges, violated Title VII of the Civil Rights Act of 1964(First Claim), Title IX of the Education Amendments Act of 1972 (Second Claim), and "42 U.S.C. § 1983" (Third Claim).

All parties have consented to the full jurisdiction of this court. (ECF No. 8, 9.) Gateway has moved for summary judgment as to the whole of Lanning's amended complaint. (ECF No. 22.) Lanning filed her own motion for partial summary judgment. (ECF No. 30.) The briefing on these motions is complete and each is ready for resolution.

2. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" only if it "might affect the outcome of the suit" and a dispute is "genuine" only if a reasonable factfinder could return a verdict for the non-movant. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). In resolving a motion for summary judgment, the court is to "construe all evidence and draw all reasonable inferences from the evidence in" favor of the non-movant. E.Y. v. United States, 758 F.3d 861, 863 (7th Cir. 2014) (citing Gil v. Reed, 535 F.3d 551, 556 (7th Cir. 2008); Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001)). "The controlling question is whether a reasonable trier of fact could find in favor of the non-moving party on the evidence submitted in support of and [in] opposition to the motion for summary judgment." White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016).

3. Analysis

3.1. Hostile Work Environment Claim

"A hostile work environment claim requires a plaintiff show: (1) the work environment was objectively and subjectively offensive, (2) the harassment complained of was based on gender, (3) the conduct was either severe or pervasive, and (4) a basis for employer liability exists." Hunt v. Wal-Mart Stores, Inc., 931 F.3d 624, 627-28 (7th Cir. 2019) (citing Scruggs v. Garst Seed Co., 587 F.3d 832, 841 (7th Cir. 2009)). For the purpose of the present motions, Gateway does not dispute the first three elements. (ECF No. 24 at 16.) Nonetheless, it argues that it is entitled to summary judgment because no basis exists for holding it liable for Assad's conduct.

3.1.1. Whether Assad was Lanning's Supervisor

If the harasser is the plaintiff's supervisor, the defendant "employer is strictly liable if the harassment culminates in a tangible employment action." Byrd v. Wis. Dep't of Veterans Affairs, 98 F. Supp. 3d 972, 982 (W.D. Wis. 2015) (citing Vance v. Ball State Univ., 570 U.S. 421, 133 S. Ct. 2434, 2439 (2013)). "'Supervisor' is a legal term of art for Title VII purposes, and an employee merely having authority to oversee aspects of another employee's job performance does not qualify as a supervisor in the Title VII context." Rhodes v. Ill. DOT, 359 F.3d 498, 506 (7th Cir. 2004); see also Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008). A person is a supervisor only if he can "effect a 'significant change in employment status, such as hiring, firing, failing topromote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Vance, 570 U.S. at 431 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)).

Lanning argues that Assad was her supervisor because "he had direct control over the educational and experiential job benefits that were inherent in the Student Casual position (in addition to other supervisory functions such as control over hours worked and hiring decisions involving Student Casuals)." (ECF No. 61 at 10.) She contends that Assad could "direct and control" her "day-to-day activities" (ECF No. 64, ¶ 4) and could control her work schedule (ECF No. 64, ¶ 11), including assigning her additional work hours (ECF No. 64, ¶ 12) or denying her requests to work additional hours (ECF No. 64, ¶ 13). She also alleges that Gateway "delegated to Technicians [like Assad] the authority to make hiring decisions involving Student Casuals." (ECF No. 64, ¶ 22.)

But the evidence she cites undercuts each of her assertions. To support her assertion that Assad could "direct and control" her "day-to-day activities" (ECF No. 64, ¶ 4), Lanning cites Vollendorf's deposition. (ECF No. 52-4 at 6, 22:5-17.) But the cited testimony was merely that all of the support technicians could "assign tasks" to student casuals. (ECF No. 52-4 at 6, 22:5-17.) This was only one of many ways the student casuals would receive work assignments. (ECF No. 59, ¶ 55.) The fact that one way Lanning could receive assignments was from Assad does not demonstrate that Assaddirected and controlled her day-to-day activities. See Vance, 570 U.S. at 439 ("The ability to direct another employee's tasks is simply not...