McPherson v. City of Waukegan

• Decision Date: 11 August 2004
• Docket Number: No. 03-2738.,03-2738.
• Citation: 379 F.3d 430
• Parties: Leslie D. McPHERSON, Plaintiff-Appellant, v. CITY OF WAUKEGAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

379 F.3d 430

Leslie D. McPHERSON, Plaintiff-Appellant, v. CITY OF WAUKEGAN, Defendant-Appellee.

No. 03-2738.

United States Court of Appeals, Seventh Circuit.

Argued February 19, 2004.

Decided August 11, 2004.

Appeal from the United States District Court for the Northern District of Illinois, Amy J. St. Eve, J.

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Jed Stone (argued), Stone & Associates, Waukegan, IL, for Plaintiff-Appellant.

Beth T. Golub (argued), Seyfarth Shaw, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, POSNER and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

While she was employed by the City of Waukegan (the City), Leslie McPherson alleges that she was sexually harassed, battered and subjected to intentional infliction of emotional distress by her supervisor, Randall Copenharve, and that the City forced her to resign. McPherson appeals the district court's grant of summary judgment on her Title VII claim of sexual harassment against the City, her claims that the City was liable for Copenharve's torts under a respondeat superior theory and her demand that the City indemnify any judgment against Copenharve. After considering all of the evidence in the light most favorable to McPherson, we affirm.

I.

McPherson began working for the City as a full-time Clerical Technician I in the Building Department on March 6, 1998. She was promoted to Clerical Technician II sometime around September 1999. McPherson's duties consisted generally of answering telephones, filing and issuing building permits to applicants. McPherson was one of two clerical technicians and reported directly to Edna Nieves, the supervisor of the Building Department, who in turn reported to Copenharve, the Assistant Building Commissioner. Michelle Weland was the office manager. McPherson took directions from both Nieves and Copenharve, but it was Nieves who conducted McPherson's performance reviews, and those reviews formed the basis for McPherson's pay raises throughout her tenure with the City.¹ McPherson had never been disciplined during her employment. Copenharve had worked for the City since 1969, and there had never been a complaint of sexual misconduct against him.

According to McPherson, Copenharve began making allegedly offensive comments to her starting about March of 1999, when he asked her what color bra she was wearing. McPherson claims that Copenharve asked this question openly in the office area a "handful" of times during her three years with the City. One of McPherson's co-workers, Michelle Brewington, testified at her deposition that Copenharve had made similar comments to her and that on at least one occasion the office manager, Weland, had overheard Copenharve ask the female staff, "Okay ladies, what color is your bra today, does it match the underwear?" On that occasion, Weland told Copenharve, "That's enough. It's time for you to get out and do your job." (Appellant's Br. at 17; SA at 34-35.)² Brewington also testified that Nieves had been present when Copenharve asked the group of female employees this question and had laughed it off. (Appellant's Br. at 17; SA at 34-35.) While McPherson claims that the comments made by Copenharve offended her, she never mentioned his conduct to any of her supervisors and never told anyone that his remarks made her uncomfortable.

At another time during March 1999, McPherson called in sick and spoke with Copenharve. Copenharve responded by suggestively asking if he could "make a house call." He asked the same question two or three more times during the course of McPherson's employment with the City, but like the other times that Copenharve's conduct allegedly offended McPherson, she never complained of or reported his comments to anyone. Additionally, on several occasions Copenharve and others from the Department would wander over to McPherson's work station and browse through the Victoria's Secret catalogs in and on top of her desk. McPherson recalled an instance when Copenharve was looking through one of the catalogs, pointed to a particular outfit and suggested that she might look nice in it. This too allegedly offended her.

In late February or early March of 2001, Copenharve's conduct escalated to include physical contact. According to McPherson, at a time when they were unobserved by others, Copenharve asked her what color bra she was wearing and then pulled back her tank top with his fingers to see for himself. Although McPherson pulled away from Copenharve, she never mentioned his conduct to any of her supervisors and never told anyone, not even Copenharve, that his behavior made her uncomfortable. And things soon got worse.

On March 21, 2001, Copenharve called McPherson into his office. She entered and closed the door behind her. No one could see into Copenharve's office once the door was shut. McPherson claims that, as she and Copenharve were discussing a work document, he slid his hand under her shirt and felt her breasts. She pulled away and asked him to stop, telling him that his hands were cold. Copenharve removed his hand from under her shirt and McPherson left his office. She finished the workday and returned to work the next morning. McPherson did not complain about or report Copenharve's behavior at the time.

Five days later, on March 26, 2001, Copenharve again called McPherson into his office and asked her to shut the door, which she did. McPherson asked Copenharve if he wanted to talk to her about a particular work issue, and he replied that he was just having a bad day and needed to be "cheered up." (SA at 27.) Realizing that Copenharve had nothing work-related to discuss with her, McPherson turned to leave his office. Copenharve got up from his desk, approached her and slid his hand under her shirt, touching her breasts. McPherson asked him to stop. Copenharve pushed her toward the wall behind his office door. He then put his hand down her pants and inserted his finger into her vagina. McPherson again asked Copenharve to stop and said, "Somebody is going to walk in." Id. Seconds later, Weland opened the door and walked into the office, saying that she had something for Copenharve. But as the door was opening, Copenharve pushed McPherson behind it, so Weland would not see her. Weland dropped something on the desk and left. Shortly afterward, McPherson also left Copenharve's office.

Despite what had just transpired, McPherson worked the rest of the day, during which she mentioned the incident to no one. On the following day, McPherson called her friend (and sister-in-law), Mary Vanderventer, who also happened to be the mayor's daughter, and told her something had happened. She went to Vanderventer's house for lunch and told her (and a City attorney who was present) about the two incidents that had taken place in Copenharve's office. She then returned to work but soon afterward received a call from Vanderventer telling her that she could go home for the day. Between the time McPherson left Vanderventer's home and the time she arrived back at work, Vanderventer had contacted her father (the mayor) and told him what McPherson had told her. Later that same afternoon, the mayor met with Copenharve, another City attorney and two other City employees to discuss McPherson's allegations. Copenharve was presented with two alternatives at that meeting: he could either accept a suspension during the course of the City's investigation, or he could immediately resign. Even though Copenharve insisted that what happened between him and McPherson was consensual, he chose to resign on the spot rather than risk what he thought would be certain termination following an investigation.³

The City claims that its actions with respect to Copenharve were in compliance with its policy against sexual harassment, which both prohibited harassing behavior and identified the available avenues for reporting it. The City also maintained a "Workplace Violence" policy that encouraged employees to report incidents of violence.⁴ McPherson was aware of the City's policies and procedures since she had previously complained about difficulties with another co-worker through the appropriate channels. Additionally, McPherson, as a member of the Service Employees International Union, was covered under a Collective Bargaining Agreement. That Agreement contained a "Non-Discrimination" clause and detailed grievance procedures members were to follow if a suspected breach occurred. McPherson neither filed a Union grievance about Copenharve's conduct nor reported Copenharve's behavior to the City until her March 27, 2001 meeting with Vanderventer.

Even though McPherson did not request it, the City granted her thirty days of paid leave beginning on March 28, 2001, which was not counted against any of her accrued time. On April 26, 2001, McPherson was informed by the City that she could take an additional twenty-two days of paid leave, comprising her remaining sick, personal and vacation time. She was advised that if she felt she needed more time after that, she would have to apply for a discretionary leave of absence. With her paid leave nearly used up, on May 10, 2001, McPherson wrote to the City and demanded an additional ninety days of paid leave with full benefits. On June 6, 2001, McPherson's attorney followed up with an inquiry about the status of McPherson's employment with the City. On June 28, 2001, the City responded to McPherson's attorney's inquiry, stating that Copenharve had resigned; that the "hostile work environment" perceived by McPherson could no longer possibly exist; that McPherson was still considered on "active but unpaid" status; that her position was being filled on a temporary basis due to the Department's workload but remained available to her upon her return to work; and that McPherson was currently considered absent without leave, which put her employment at risk. (SA at 8.) The City ended its letter by stating that it...