Tutman v. WBBM-TV Inc.

• Decision Date: 20 April 2000
• Docket Number: No. 99-2366,WBBM-T,I,99-2366
• Citation: 209 F.3d 1044
• Parties: (7th Cir. 2000) Robert TUTMAN, Plaintiff-Appellant, v.nc./CBS, Inc., Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1044

209 F.3d 1044 (7th Cir. 2000)

Robert TUTMAN, Plaintiff-Appellant, v. WBBM-TV, Inc./CBS, Inc., Defendant-Appellee.

No. 99-2366

In the United States Court of Appeals For the Seventh Circuit

Argued November 30, 1999

Decided April 20, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 4424--Elaine E. Bucklo, Judge. [Copyrighted Material Omitted]

Before Manion, Kanne and Rovner, Circuit Judges.

Kanne, Circuit Judge.

CBS producer Robert Vasilopulos testified that "it was simply a joke" when he told Robert Tutman, an African-American CBS cameraman, about a comedic movie called Niggers with Hats and parroted a phrase from the movie by telling Tutman to "[g]et the fuck out of the office before I pop a cap in your ass." Tutman, however, viewed the comment as a serious death threat and lodged a formal harassment complaint with their employer WBBM-TV, Inc./CBS, Inc. ("CBS"). When CBS responded by punishing Vasilopulos and promising to separate Vasilopulos from Tutman at work, Tutman remained dissatisfied and eventually sued CBS under Title VII of the Civil Rights Act, 42 U.S.C. sec.sec. 2000e to 2000e-17. The district court granted summary judgment for CBS on the hostile work environment and constructive discharge claims, and Tutman appealed. We affirm summary judgment because CBS took prompt and appropriate remedial action to prevent further harassment and Tutman cannot establish constructive discharge based on the incident with Vasilopulos.

I. History

During the afternoon of Friday May 19, 1995, Tutman was conversing with sportscaster Tim Weigel in the WBBM-TV sports office when CBS co-worker Vasilopulos strolled into the office and said twice to Tutman, "Get the fuck out of the office before I pop a cap in your ass." According to Tutman, Vasilopulos began prancing around, derisively caricaturing African-Americans. Surprised by Vasilopulos's outburst, Tutman responded that the correct phrase was "bust a cap," not "pop a cap."¹ Vasilopulos asked whether Tutman had seen a movie entitled Niggers with Hats. Tutman answered that movies like Niggers with Hats were profitable and that Vasilopulos should make a similar movie with Tutman's help. After two minutes, both men departed the sports office.

However, Tutman later would testify that he interpreted Vasilopulos's outburst as a racially-motivated death threat and was quite shaken by Vasilopulos's histrionics. After leaving the sports office, he visited his supervisor Andrea Jenkins and told her about Vasilopulos's bizarre behavior. Jenkins assured him that he had done well to notify her and that she would investigate his complaint. Tutman also called D.E. Simmons, an outside consultant retained by CBS to advise on workplace concerns, and told him about Vasilopulos. Simmons then contacted Jenkins who asked Simmons to meet with her at the office forthwith. The pair discussed the situation, then immediately reported Tutman's complaint to News Director John Lansing. Lansing investigated further by speaking to Weigel and Vasilopulos that night about the incident.

On Monday May 22, 1995, Tutman telephoned CBS that he would not come to the station for work because of the incident with Vasilopulos the previous Friday. CBS gave Tutman his work assignment over the telephone, but Tutman did venture to the station that afternoon to meet with General Manager Robert McGann about his complaint. Jenkins and Lansing then briefed McGann about the re sults of their investigation thus far.

On Tuesday, McGann, Jenkins, Lansing, Simmons and Vasilopulos met to discuss Vasilopulos's version of events. Afterward, McGann informed the CBS human resources department about Vasilopulos's conduct and Tutman's complaint. On Friday, one week after the incident between Vasilopulos and Tutman, CBS's Director of Policy and Administration Sandra Spangenberg arrived from CBS head quarters in New York to investigate firsthand. After interviewing Tutman, Vasilopulos and other witnesses, Spangenberg told Tutman that his allegation was serious and Vasilopulos's obnoxious behavior would not be tolerated at CBS. Spangenberg told both Vasilopulos and Tutman that Vasilopulos would be punished.

Based on Spangenberg's recommendations, CBS found that Vasilopulos posed no physical threat to Tutman but had been grossly inappropriate. CBS imposed a tripartite punishment on Vasilopulos: (1) a written warning placed in his personnel record making clear that future misconduct would lead to more serious discipline; (2) mandatory participation in a three-day interpersonal skills workshop aimed at promoting better workplace relationships; (3) Vasilopulos was required to apologize to Tutman. In addition, CBS re-circulated its anti- discrimination and fair employment policies to all employees. CBS previously had disciplined Vasilopulos with letters of reprimand for yelling "get the fuck out of my office" at producer Howard Dorsey and for using profanity in the presence of editor Debra Segal. However, at the time, Vasilopulos's personnel file contained no previous harassment complaints or disciplinary actions against him. Later, union official Jessica Logan would testify that Vasilopulos had disparaged CBS camera technician Morris Jones "as a nigger" in June 1995, a month after CBS's investigation of Vasilopulos's harassment of Tutman, but Jones did not bring a formal charge against Vasilopulos.

Predictably, Vasilopulos was unenthusiastic about his punishment. Vasilopulos balked at apologizing to Tutman but understood that CBS was taking Tutman's complaint "very seriously" and would terminate him if he did not comply. With continued insistence by CBS, Vasilopulos wrote a June 2, 1995, letter addressed to "whom it may concern," explaining noncommitally that he regretted "that comments exchanged in a joking manner with Robert Tutman, on May 19, 1995, were misinterpreted." Vasilopulos also complained about attending the interpersonal skills workshop taught by Simmons, and CBS allowed Vasilopulos instead to attend an alternative three-day sensitivity seminar from August 23 to August 25, 1995. Vasilopulos managed to leave the final day of the program a few hours early.

Despite CBS's response, Tutman refused to work because he felt "unsafe." CBS told Tutman that his assignments could be given by telephone and that he and Vasilopulos could be given staggered shifts to ensure that he would not encounter Vasilopulos at work. Nonetheless, CBS maintained that Tutman had to report for work, and when Tutman remained intransigent, CBS placed Tutman on a paid medical leave of absence. By his admission, Tutman was happy to collect salary without working and did not object. However, CBS's employment policy limited medical leave to six months, and this edict had been strictly enforced without exception during the previous ten years. As the expiration of Tutman's leave drew imminent, Tutman insisted on additional paid leave so that he could "get back in shape" but failed to provide a note from his doctor verifying that extended leave was medically necessary. Indeed, Tutman admits that he had not sustained a serious illness, and his doctors said that there was no reason Tutman could not return to work. As a result, CBS considered Tutman "voluntarily resigned" when his six-month medical leave lapsed on November 22, 1995.

Tutman filed a charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission that day. On July 19, 1996, Tutman filed suit against CBS in district court alleging retaliation, racially hostile work environment and constructive discharge under Title VII of the Civil Rights Act. The district court referred the case to Magistrate Judge Morton Denlow who recommended that the district court grant summary judgment for CBS on all Tutman's claims. On April 29, 1999, the district court adopted the magistrate's recommendations and granted summary judgment for CBS on all Tutman's claims. Tutman appeals summary judgment on his hostile work environment and constructive discharge claims.

II. Analysis

We review de novo the district court's grant of summary judgment, drawing our own conclusions of law and fact from the record before us. See Haefling v. United Parcel Serv., 169 F.3d 494, 497 (7th Cir. 1999). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, we construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

A. Hostile Work Environment

Tutman's central claim before the district court was that he suffered a racially hostile work environment, based on the Vasilopulos incident, in violation of Title VII of the Civil Rights Act. For workplace conduct to constitute a hostile work environment actionable under Title VII, the harassment "must be sufficiently severe or pervasive 'to alter the conditions of [the plaintiff's] employment and create an abusive environment.'" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (citation omitted). However, an employer is not strictly liable under Title VII for sexual harassment perpetrated by its employees. See Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir. 1992). In hostile work environment cases, the employer can avoid liability for its employees' harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring. See Saxton v. American...