Pasqua v. Metropolitan Life Ins. Co.

• Decision Date: 26 November 1996
• Docket Number: No. 95-4008,95-4008
• Citation: 101 F.3d 514
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 1158 Donald PASQUA, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 514

101 F.3d 514

72 Fair Empl.Prac.Cas. (BNA) 1158

Donald PASQUA, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellee.

No. 95-4008.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 1996.

Decided Nov. 26, 1996.

Bruce M. Bozich (argued), Mark G. Patricoski, Bozich & Beran, Palos Heights, IL, for Plaintiff-Appellant.

David F. Schmidt, Joseph J. Hasman, Daniel A. Engel (argued), Peterson & Ross, Chicago, IL, for Defendant-Appellee.

Before COFFEY, RIPPLE and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Donald Pasqua sued his employer, Metropolitan Life Insurance Company ("MetLife"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging sex discrimination and retaliation, claiming that he was discharged for complaining of sex discrimination. The district court granted summary judgment for MetLife and Pasqua appeals. We affirm.

I. Background

Donald Pasqua was a MetLife sales representative from 1974 to 1985 and a sales manager from 1990 until his promotion to branch manager at the company's Navajo Hills Branch Office ("NHBO") in Palos Heights, Illinois on October 8, 1990. Milica Vukanic, a sales representative hired by Pasqua, informed Pasqua in April 1991 that certain employees were spreading rumors, including one that was rather coarse in content, that she and Pasqua were engaged in an intimate relationship. ¹ Pasqua, who confronted the offender and denied the veracity of the rumor, thereafter telephoned Richard Mulvey, his regional manager, to report the incident. Mulvey told Pasqua that his handling of the situation was proper. Rumors of a sexual relationship between Pasqua and Vukanic continued to be disseminated by both men and women in the NHBO and in other MetLife offices. Reports were also circulated that Pasqua was showing favoritism to Vukanic. Pasqua telephoned Mulvey periodically to apprise him of the continuing nature of the rumors and accusations. Pasqua met with Mulvey around September 3, 1992 to discuss the rumors. Mulvey indicated that he had no solution to the problem but that he had admonished several of the offenders respecting their involvement in circulating the gossip. Pasqua informed Mulvey that Vukanic was threatening a sexual harassment lawsuit. The next day Mulvey, Pasqua and Vukanic met with one another to review the complaint, and Mulvey stated he would investigate.

Pasqua was demoted on September 28, 1992 because of the NHBO's poor performance, specifically because of the NHBO's failure to achieve sales objectives, and reassigned as an associate sales manager in another MetLife office around October 28, 1992. He remained there until July 26, 1993, when he went on disability status claiming that he was suffering from anxiety and depression. After Pasqua consulted with the Equal Employment Opportunity Commission and received a right to sue letter, Pasqua instigated litigation against MetLife under Title VII, claiming that he had been subject to sex discrimination in having to work in a hostile or abusive environment, and that he was demoted in retaliation for complaining about the rumors. The district court granted summary judgment in favor of MetLife.

II.

We review the district court's grant of summary judgment de novo, examining the record and all reasonable inferences drawn therefrom in the light most favorable to Pasqua, the non-moving party. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992). Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Only disputes that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment." Id. at 248, 106 S.Ct. at 2510. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

III. Sexual Harassment Claim

Title VII makes it unlawful for an "employer ... to discriminate against any individual with respect to his ... conditions ... of employment, because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a)(1). A Title VII plaintiff can satisfy his burden of proof by two methods: demonstrating that sex discrimination motivated the harassment, see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985), or, because of the difficulty in directly proving discrimination, he may employ the indirect, burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pasqua relies upon the McDonnell Douglas methodology.

Under the McDonnell Douglas framework, Pasqua must initially establish a prima facie case of sex discrimination by a preponderance of evidence. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The vague nature of the statutory language "conditions of employment," see Harris v. Forklift Sys., Inc., 510 U.S. 17, 24, 114 S.Ct. 367, 371-72, 126 L.Ed.2d 295 (1993) (Scalia, J. concurring), has permitted an " 'expansive' " reading of Title VII so as to include sexual "harassment" even when the plaintiff has suffered no economic injury. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-66, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986) (citation omitted). Sexual harassment, to be actionable, "must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Id. at 67, 106 S.Ct. at 2405 (quoting Henson v City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). ²

A prima facie case of sexual harassment also requires a showing that, but for the plaintiff's sex, he or she would not have been the subject of harassment. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493. Harassment that is inflicted without regard to gender, that is, where males and females in the same setting do not receive disparate treatment, is not actionable because the harassment is not based on sex. As the Eleventh Circuit explained:

[T]here may be cases in which a supervisor makes sexual overtures to workers of both sexes or where the conduct complained of is equally offensive to male and female workers. In such cases, sexual harassment would not be based on sex because men and women are accorded like treatment .... [and] the plaintiff would have no remedy under Title VII.

Henson, 682 F.2d at 904 (citations omitted). See also Vandeventer v. Wabash Nat'l Corp., 887 F.Supp. 1178, 1180-81 (N.D.Ind.1995); Goluszek v. H.P. Smith, 697 F.Supp. 1452, 1456 (N.D.Ill.1988).

Pasqua's claim falls short of establishing the elementary requirement in this circuit that the alleged harassment was based upon the plaintiff's sex. There is not even a hint in the record that any rumors or vulgar statements concerning an illicit relationship between Pasqua and Vukanic were made because Pasqua was a male. By the very nature of such gossip, both Pasqua and Vukanic were made the subject matter as is evidenced by Vukanic being the first to utter a threat to sue over the matter. Moreover, both men and women alike were talebearers. Such rumors spread, irrespective of the truth, for any number of reasons having nothing to do with gender discrimination. In addition to what commonly motivates gossip of this type--a fascination with the prurient--perceptions of favoritism on Pasqua's part added fuel to the fire in this case. Although it is not inconceivable that someone might spread slanderous rumors in the workplace for the simple motivation that someone else was of a particular gender, this case, however, is not one of those rarities.

Pasqua argues that the district court erred in failing to consider whether harassment by someone of the same sex, which is actionable in other circuits, should be recognized in this circuit, and in overlooking the pervasive and severe impact of the rumors which he argues created a hostile and intimidating work environment. We need not consider these issues for Pasqua has failed to meet the most basic element of a prima facie case of sex discrimination. Moreover, with respect to the first claimed error, we note that Pasqua failed to raise the same-sex issue before the district court. He argued before the district court that, because Mulvey stated to Vukanic that he took her complaints seriously and would, therefore, investigate her complaints, his complaints were taken less seriously and this disparity was on account of gender. Pasqua abandons this argument on appeal in lieu of the same-sex harassment argument. Not having raised the same gender issue before the district court, he has forfeited appellate review of this issue. See United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993); Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 505 (7th Cir.1994). In any event, it is immaterial in this case whether the alleged harassment came from someone of the same gender because, as we have already concluded, the rumors were neither initiated nor perpetuated because of Pasqua's sex.

IV. Retaliation Claim

Title VII also makes it unlawful for an employer to discriminate against an employee because of such employee's opposition to the discriminatory conduct made unlawful under Title VII. 42 U.S.C. § 2000e-3(a). To establish a prima facie case...