Pryor v. Seyfarth

• Decision Date: 11 May 2000
• Docket Number: No. 99-2280,99-2280
• Citation: 212 F.3d 976
• Parties: (7th Cir. 2000) Donna F. Pryor, Plaintiff-Appellant, v. Seyfarth, Shaw, Fairweather & Geraldson, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 976

212 F.3d 976 (7th Cir. 2000)

Donna F. Pryor, Plaintiff-Appellant, v. Seyfarth, Shaw, Fairweather & Geraldson, Defendant-Appellee.

No. 99-2280

In the United States Court of Appeals For the Seventh Circuit

Argued January 7, 2000

Decided May 11, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 7588--Harry D. Leinenweber, Judge.

Before Posner, Chief Judge, and Rovner and Evans, Circuit Judges.

Posner, Chief Judge.

The plaintiff appeals from the dismissal of her suit, on motion for summary judgment, for sexual harassment, and for retaliation for complaining about it, all in violation of Title VII. She was a secretary at a large Chicago law firm and claims that in 1994 a partner named Woodford for whom she was working harassed her on account of her gender. She bases the claim on five incidents, which for purposes of this appeal we assume happened exactly as she claims they did, spread over the last half of the year:

1. Woodford asked to see a "Frederick's of Hollywood" catalog that was on the plaintiff's desk and asked her whether she had ever bought anything from Frederick's. When she said yes, Woodford responded: "Well, can I see some pictures of you in some of the outfits that you have bought from Frederick's of Hollywood?" She said she had bought only shoes from Frederick's, and so there were no pictures of her wearing outfits from that store. He said, "Well, when you get some pictures can I see them?"

2. He said her shoes were "unusual" and that he "prefer[red] to see you in shoes with your toes out as opposed to those type of shoes."

3. He asked her "What's the color for next week?" and when she replied that she didn't know he said, "Do all your clothes correspond?"

4. Working on a case the documents in which included a book that had pictures of women in bondage or black leather, Woodford asked Pryor to "look at this." When she inquired whether it was relevant to a case, he replied, "No, I just wanted you to see it."

5. Noticing an outfit in a shopping bag behind Pryor's desk, Woodford said, "Oh, a new outfit?" And when she said yes, he said, "Is that something you got from Frederick's of Hollywood?"

Neither singly nor in combination do these incidents rise to the level at which alleged sexual harassment becomes actionable under federal law. Incidents 3 and 5 seem entirely innocuous, 1 and 2 mildly flirtatious, and 4 possibly suggestive or even offensive, but not so offensive as to constitute actionable harassment. For Title VII does not forbid sexual harassment as such. The harassment must be sufficiently severe that a rational trier of fact could find that it had actually changed the conditions of the plaintiff's workplace, e.g., Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999); Cowan v. Prudential Ins. Co., 141 F.3d 751, 755-56 (7th Cir. 1998); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245-46 (11th Cir. 1999), for only sexual discrimination that changes those conditions is (so far as bears on sexual harassment at any rate) actionable under that statute. E.g., Smith v. Sheahan, 189 F.3d 529, 532 (7th Cir. 1999). The harassment alleged here falls short of the harassment held in Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th Cir. 1995), and other cases, e.g., McKenzie v. Illinois Dept. of Transportation, 92 F.3d 473, 476-77, 480 (7th Cir. 1996); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 538, 534 (7th Cir. 1993); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 334-35, 337 (7th Cir. 1993); Mendoza v. Borden, Inc., supra, 195 F.3d at 1242-43, 1247 (and cases cited in id. at 1246-47); Shepard v. Comptroller of Public Accounts, 168 F.3d 871, 872, 874 (5th Cir. 1999); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998), to be beyond the reach of Title VII because insufficiently severe to change the conditions of employment as they would be perceived by a reasonable person, not hypersensitive.

Pryor seeks to distinguish these cases by means of two affidavits filed after her deposition, at which she testified about the five incidents summarized above. One affidavit is hers and asserts that Woodford had been harassing her for years. The other affidavit is by another former employee of the Seyfarth firm and alleges that she was harassed by Woodford too. As far as Pryor's affidavit is concerned, she gives us no reason to depart from the presumption that an affidavit which seeks to bolster a party's prior deposition is not entitled to consideration, e.g., Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999); Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997), while the other affidavit shows only that Pryor's lawyer is confused about the rule that sexual harassment is actionable under Title VII only when it changes the plaintiff's conditions of employment. Insofar as Woodford harassed other employees, and did so without (so far as appears) Pryor's knowledge, it could not have altered her conditions of employment, and so she could not complain about that harassment under Title VII. Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir. 2000); Abeita v. Transamerica Mailings, Inc., 159 F.3d 246, 249 n. 4 (6th Cir. 1998); Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 171 (10th Cir. 1996); Hirase- Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995). At argument her lawyer told us that Woodford had leered at her without her knowing it, and he adduced this as evidence that Woodford's harassment was "pervasive." It was actually irrelevant.

So the claim of sexual harassment fails. But Seyfarth does not argue that the claim was so frivolous that the making of it showed that Pryor was unfit to remain at the firm--that she was the harasser. See McDonnell v. Cisneros, 84 F.3d 246, 259 (7th Cir. 1996). And so her claim of retaliation is unaffected by the failure of her claim of harassment.

Three months after she filed that claim she was fired by Seyfarth's personnel manager after being discovered glueing an artificial fingernail on the finger of a friend in the ladies' bathroom at the Seyfarth firm. Seyfarth points out that even if the offense seems a trivial one not meriting the discharge of a long-term employee, still, so long as the discharge was not motivated by the fact that Pryor had filed a claim against the firm the disproportionate character of the manager's action could not establish liability under Title VII. That is true, because Title VII is not a "good cause" statute; it creates a remedy against invidious discrimination (or, as here, retaliation), not against caprice. The circumstances leading up to the discharge, however, cast enough suspicion on the motive for firing Pryor to entitle her to a trial.

To begin with, if the facts are taken as they should be in the light most favorable to Pryor, there was no "offense." She was on her break when she applied the nail; she had been "doing" nails for her coworkers for years; there was no rule against having a visitor and doing the visitor's nail; and the procedure took only 30 seconds. We repeat that it is not our business whether the firm had good cause to fire Pryor; but it would be odd if the...