EEOC v. Costco Wholesale Corporation ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-2432 & 17-2454
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee/
Cross-Appellant
v.
COSTCO WHOLESALE CORPORATION,
Defendant-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14-cv-06553 — Ruben Castillo, Chief Judge.
____________________
ARGUED FEBRUARY 13, 2018 — DECIDED SEPTEMBER 10, 2018
____________________
Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,
Chief District Judge. *
BARRETT, Circuit Judge. Dawn Suppo, an employee of
Costco Wholesale Corporation, was stalked by Thad Thomp-
son, a customer of Costco, for over a year. Things got so bad
* Of the Eastern District of Wisconsin, sitting by designation.
2 Nos. 17-2432 & 17-2454
at the end that Suppo secured a plenary no-contact order from
an Illinois state court. Traumatized by the experience, she also
took an unpaid medical leave, and when she didn’t come
back, Costco terminated her employment.
The Equal Employment Opportunity Commission
(EEOC) sued Costco on Suppo’s behalf, alleging that Costco
had subjected her to a hostile work environment by tolerating
Thompson’s harassment. After the jury rendered a verdict in
the EEOC’s favor, Costco moved for judgment as a matter of
law and the EEOC moved for backpay. The district court de-
nied both motions, and both parties appeal.
We conclude that the district court was right to deny
Costco’s motion for judgment as a matter of law, because a
reasonable jury could conclude that Thompson’s conduct was
severe or pervasive enough to render Suppo’s work environ-
ment hostile. The district court was only half right, however,
with respect to the EEOC’s motion for backpay. We agree
with the district court that Suppo cannot recover backpay for
the period of time after Costco fired her. But it should have
considered whether Suppo was entitled to backpay for some
or all of her time on unpaid medical leave.
I.
The evidence frequently conflicted during the trial, but be-
cause the EEOC won a verdict on Suppo’s behalf, we recount
the facts in the light most favorable to her. We look at the rec-
ord as a whole, give her the benefit of every inference, and
refrain from making credibility determinations. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000); see
also Walker v. Bd. of Regents of Univ. of Wis. Sys., 410 F.3d 387,
393 (7th Cir. 2005). Our task is to determine whether a juror
Nos. 17-2432 & 17-2454 3
inclined to believe Suppo’s side of the story could reasonably
conclude that Costco subjected her to a hostile work environ-
ment.
A.
Costco is a warehouse club open to members who pay an
annual fee. It offers a wide range of goods—everything from
groceries to furniture—at its many locations around the coun-
try. In 2009, Suppo began working at Costco’s store in Glen-
view, Illinois as a seasonal, part-time employee; in May of
2010, she transitioned to regular, part-time status. Her duties
included doing “go-backs”—re-shelving items that members
decided not to purchase. Go-backs required Suppo to circu-
late around the large warehouse with a shopping cart, return-
ing items to the sections where they belonged. Most, if not all,
of her encounters with Thompson occurred while she was do-
ing go-backs.
Suppo encountered Thompson for the first time in May or
June of 2010. Thompson referred to Suppo by her first name,
which he read from her employee nametag. He noted that he
had seen her “speaking to one of the guys up front” and asked
what Suppo describes as “a few personal questions,” such as
where she lived. Suppo replied that it was nice to meet him,
but she had to return to work. A few days later, they had a
similar encounter: Thompson approached her, asked ques-
tions that Suppo considered personal, and Suppo replied that
she had to go back to work. Suppo did not immediately report
these interactions to Costco management. But they had un-
nerved her, and two months later, she related them to Don
Currier, her direct manager. She told Currier that she was
scared, and he instructed her to notify him if she saw Thomp-
son again.
4 Nos. 17-2432 & 17-2454
Shortly after her conversation with Currier, Suppo did see
Thompson again. This time, he was wearing “sunglasses and
a hat” while “watching [her] in different aisles and hiding be-
hind the clothes.” When Thompson realized that she had seen
him, he told Suppo that she “looked scared” and left. Suppo
notified Currier, and Currier, Greg West (Assistant General
Manager), and Daniro Hernandez (a loss-prevention officer)
brought Thompson into the warehouse office, where they told
him to “avoid [Suppo] and … not talk to her.” Thompson was
defensive and angry; he loudly stated that it is a “free coun-
try” and invoked his “freedom of speech.” He nonetheless
agreed to stay away from Suppo. Currier told Suppo about
the meeting and instructed her to follow up with him if she
had future concerns about Thompson.
Suppo remained frightened by this third interaction with
Thompson and decided to contact the police. She filed a re-
port stating that Thompson had been asking personal ques-
tions and “hiding behind clothes watching her.” Later that
day, the police called Suppo about her report while she was
in the warehouse office with Currier and West. After she hung
up, West yelled at her and told her to “be friendly to” Thomp-
son. The police interviewed Thompson, but they did not ar-
rest or charge him. Instead, they filed a half-page report relat-
ing Suppo’s claims that “Thompson was stalking her while
she was at Costco,” that she could “feel him looking at her,”
and that “when she looks at him he looks down.” The report
also noted that Thompson had apologized and said that he
would avoid Suppo in Costco.
But Thompson did not avoid Suppo. The two encountered
one another multiple times over the next 13 months, although
Costco and the EEOC disagree about how many. Costco
Nos. 17-2432 & 17-2454 5
insists before us (as it did before the jury) that Thompson and
Suppo could not have seen one another more than 20 times
during this 13-month period, because Thompson’s purchase
record reflects that he was in the warehouse during only 20 of
Suppo’s 308 scheduled shifts. As the EEOC pointed out at
trial, however, Costco only records when members purchase
items, not when they enter the warehouse, and Suppo testi-
fied that Thompson’s cart was sometimes empty when she
saw him. Thus, Thompson could have been in the warehouse
much more often than his purchase record reflects. Suppo
also testified that Thompson “constantly” tried to talk to her
and “constantly” tried to give her his phone number. Based
on the EEOC’s evidence, the jury could infer both that
Thompson approached Suppo very frequently and that he
sometimes came to the warehouse to see her rather than to
shop. It was not required to credit Costco’s claim that the two
saw one another no more than 20 times.
Suppo described her interactions with Thompson as fol-
lows. On two occasions, she saw him “coming around the
aisle just watching [her],” which made her “uncomfortable.”
On other occasions, he talked to her. Suppo testified that
Thompson expressed some (though not all) of his questions
“in a sexual way.” He asked (often repeatedly) where she was
from, what her nationality was, where else she worked, where
else she went, where she lived, what else she did, if she had a
boyfriend, which male employees she spoke to, and the iden-
tity of a man she shopped with. Suppo described each of these
questions as “intimate” because each made her feel “uncom-
fortable.” On various occasions, he told her she was “pretty,”
“beautiful,” and “exotic.” He asked how old she was. Two or
three times Suppo told him she would not answer, and
Thompson mused that “he couldn’t tell if [she] was 17 or 27.”
6 Nos. 17-2432 & 17-2454
(Suppo was in her 40s at the time.) Thompson told her that
she “look[ed] scared” and asked several times whether “he
freak[ed her] out.” He tried to give her his business card on
one occasion (pushing it into her hand “two, three, and four
times”), asked her out on dates approximately six times, and
“constantly” tried to give her his phone number. He also
closely observed her appearance: For example, on a day that
he saw her twice, he “noticed that she had obviously pow-
dered her face” between the first and second times that he saw
her. On another occasion, he noticed that her eye makeup had
been applied unevenly.
There was also some physical contact. Thompson used his
shopping cart to bump into Suppo or her cart four times. He
touched her twice: On one occasion, Thompson touched her
face under her eye, noting some darkness. On another, he
touched her wrist, commenting on her veins and a sore on her
hand that was healing slowly. Thompson also attempted un-
successfully to hug Suppo twice.
Currier was present for two of these encounters: once
when Thompson pulled his cart up next to Suppo before go-
ing to the restroom, and once when Thompson asked Suppo
a few questions on the warehouse floor before she walked
away from him and toward Currier. After the first instance,
Currier told Suppo he was watching Thompson. After the sec-
ond, Currier talked to Thompson. Suppo asked if she could
park closer to the store’s entrance to avoid being in the park-
ing lot alone. When Costco denied her request, her father be-
gan picking her up from work.
On September 1, 2011, Suppo was returning items
throughout the warehouse as part of her “go-back” duties.
While she was in the fish aisle, Thompson walked up to her
Nos. 17-2432 & 17-2454 7
and asked if they could talk. Suppo said no, and Thompson,
red-faced, “whipped” his cart around and left. Shortly after-
ward, Suppo was in the candy aisle near the registers when
she saw Thompson with his phone over his head, videotaping
her “from afar.” She said, “I told you to leave me alone.”
Thompson retorted, “Okay, I’ll leave you alone, mysterious
Dawn.” Suppo returned to work. In the meantime, Thompson
saw Currier on the warehouse floor and claimed that while he
had just encountered Suppo, she had initiated the contact.
Things moved quickly after that. On September 8th,
Suppo secured a Stalking No Contact Order against Thomp-
son from the county circuit court; the order forbade Thomp-
son from approaching Suppo at her residence or place of em-
ployment for 21 days. On September 11th, Suppo went on a
medical leave of absence from Costco. And on September
19th, the General Manager of the Glenview Costco told
Thompson not to shop at the Glenview location anymore; he
suggested that Thompson shop at Costco’s Mettawa location,
which was a comparable distance from Thompson’s home.
Thompson agreed. When the emergency no contact order ex-
pired at the end of the month, Suppo secured a plenary No
Contact Order against Thompson for a full year.
Costco continued its investigation after Suppo went on
medical leave. On October 4th, the Assistant Vice President of
the Midwest Region sent a letter to Thompson notifying him
that Costco was aware of Suppo’s complaints to both manage-
ment and the Glenview police. The letter formally directed
Thompson to shop at the Mettawa warehouse instead of the
one in Glenview. On November 23rd, the General Manager of
the Glenview store sent an investigation closure letter to
Suppo, informing her that although the company could not
8 Nos. 17-2432 & 17-2454
confirm a violation of its harassment policy, it had instructed
Thompson not to shop at the Glenview warehouse.
Unfortunately, the closure letter did not mark the end of
Suppo’s interactions with Thompson. A few months later, she
saw him while she was shopping with her father at Costco’s
Mettawa warehouse, where Thompson had been told to shop.
Thompson screamed profanity at them. This happened on a
Friday; Costco revoked Thompson’s membership the follow-
ing Monday. It forbade Thompson to enter any Costco ware-
house without direct permission from the warehouse General
Manager or the Assistant Vice President of the Midwest Re-
gion.
In November of 2012, per company policy, Costco termi-
nated Suppo because her unpaid medical leave of absence
had extended beyond twelve months.
B.
The EEOC filed suit on Suppo’s behalf. Its complaint al-
leged that Costco had discriminated against her because of
her sex “by creating and tolerating a sexually hostile work en-
vironment of offensive comments of a sexual nature, unwel-
come touching, unwelcome advances, and stalking by a cus-
tomer.” It also accused Costco of constructively discharging
Suppo. The district court granted Costco summary judgment
on the constructive discharge claim, but it allowed the hostile
work environment claim to go to trial. At the close of the
EEOC’s case, Costco moved for judgment as a matter of law,
and the district court denied the motion. After the jury
awarded Suppo $250,000 in compensatory damages, Costco
renewed its motion for judgment as a matter of law and asked
in the alternative for a new trial. The EEOC moved for
Nos. 17-2432 & 17-2454 9
backpay and various forms of injunctive relief. The district
court denied all post-trial motions. Costco appeals the denial
of its motion for judgment as a matter of law, and the EEOC
cross-appeals the denial of backpay.
II.
Title VII of the Civil Rights Act of 1964 prohibits an em-
ployer from discriminating against an employee on the basis
of sex. 42 U.S.C. § 2000e-2(a)(1). An employer violates this
provision when “discrimination based on sex … create[s] a
hostile or abusive work environment.” Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 66 (1986). This case is unusual because
it involves alleged sexual harassment by a customer rather
than by a supervisor or coworker. That does not get Costco
off the hook, however, because an employer can be liable for
a hostile work environment that results from the acts of non-
employees, including customers. Dunn v. Washington Cty.
Hosp., 429 F.3d 689, 691 (7th Cir. 2005); see also Lockard v. Pizza
Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998) (“[T]he same
standard of liability applies to both co-worker and customer
harassment.”).
To establish a hostile work environment claim, a plaintiff
must show that she was “(1) subjected to unwelcome sexual
conduct, advances, or requests; (2) because of her sex; (3) that
were severe or pervasive enough to create a hostile work en-
vironment; and (4) that there is a basis for employer liability.”
Lapka v. Chertoff, 517 F.3d 974, 982 (7th Cir. 2008). The third
factor—the only one that Costco contests—requires the un-
welcome conduct to be severe or pervasive from both a sub-
jective and an objective point of view. Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998). This case turns on the objective
prong: Costco concedes that Suppo subjectively perceived
10 Nos. 17-2432 & 17-2454
Thompson’s conduct to be severe or pervasive, but it argues
that no reasonable person would have experienced it that
way.
To be severe or pervasive enough to create a hostile work
environment, conduct must be “extreme.” Id. at 788. Deter-
mining whether behavior crosses that threshold is not subject
to “a mathematically precise test.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 22 (1993). Rather, it depends on “all the circum-
stances,” including “the frequency of the discriminatory con-
duct; its severity; whether it is physically threatening or hu-
miliating, or a mere offensive utterance; and whether it un-
reasonably interferes with an employee’s work performance.”
Id. at 23. With that standard in mind, we evaluate Costco’s
appeal.
A.
Costco grounds its attack on the jury’s verdict in the con-
tent of Thompson’s comments to Suppo and the nature of his
physical contact with her. As for Thompson’s comments,
Costco insists that they were “tepid” compared to those that
we have held insufficiently severe or pervasive to create a
hostile work environment. On the scale of vulgarity, Costco is
right—unsuccessful Title VII plaintiffs have endured far
worse. Baskerville v. Culligan International Co. is a good exam-
ple. There, we held that an employer was entitled to judgment
in a case in which the behavior of the plaintiff’s supervisor
included making masturbation gestures while conversing
with her, grunting suggestively as she turned to leave his of-
fice, referring to her as a “pretty girl,” and commenting that
his office did not get “hot” until she walked in. 50 F.3d 428,
430 (7th Cir. 1995). Thompson’s attempts to solicit
Nos. 17-2432 & 17-2454 11
biographical information from Suppo, compliments on her
appearance, and requests for dates were nowhere near this
lewd.
The same is true of the occasions on which Thompson
touched Suppo. Costco correctly observes that we have held
conduct that is more amorous and similarly pervasive to be
insufficiently hostile to sustain a claim under Title VII. For ex-
ample, in McPherson v. City of Waukegan, we held that a super-
visor did not severely or pervasively harass plaintiff by ask-
ing what color bra she was wearing, pulling back the shoulder
strap of her tank top to see for himself, and suggesting that he
“make a house call” when she called in sick. 379 F.3d 430, 438–
39 (7th Cir. 2004). In Adusumilli v. City of Chicago, we held that
a coworker did not severely or pervasively harass the plaintiff
by making sexual comments and touching her arm, fingers,
or buttocks, on four occasions. 164 F.3d 353, 361–62 (7th Cir.
1998). Thompson’s physical contact with Suppo—touches on
the wrist and cheek, bumps with a shopping cart, and at-
tempted hugs—was less sexually suggestive than conduct
that we have already described as falling below the bar. Be-
cause Thompson’s come-ons were so mild, Costco says, the
district court should have granted it judgment as a matter of
law.
Yet Costco’s argument implies a position inconsistent
with our case law: that harassment must be overtly sexual to
be actionable under Title VII. To be sure, the alleged harass-
ment must occur because of the plaintiff’s sex. 1 Smith v. Rose-
bud Farm, Inc., 898 F.3d 747, 750 (7th Cir. 2018). But it need not
1Costco does not dispute that Thompson focused his attention on
Suppo because she is female.
12 Nos. 17-2432 & 17-2454
consist of pressure for sex, intimate touching, or a barrage of
deeply offensive sexual comments. Passananti v. Cook Cty., 689
F.3d 655, 664 (7th Cir. 2012). Actionable discrimination can
take other forms, such as demeaning, ostracizing, or even ter-
rorizing the victim because of her sex. See, e.g., id. at 663–64
(supervisor created a hostile work environment by “demean-
ing, degrading and demoralizing” the plaintiff); Hall v. City of
Chicago, 713 F.3d 325, 331 (7th Cir. 2013) (supervisor isolated
the plaintiff from her coworkers); Frazier v. Delco Elecs. Corp.,
263 F.3d 663, 664–65, 667 (7th Cir. 2001) (coworker terrorized
the plaintiff). Here, we must decide whether a reasonable ju-
ror could find Thompson’s conduct objectively intimidating
or frightening.
In making this assessment, we do not—as Costco would
have it—consider only what Thompson said and where he
touched her. As we have emphasized before, “[c]ourts should
not carve up the incidents of harassment and then separately
analyze each incident, by itself, to see if each rises to the level
of being severe or pervasive.” Hall, 713 F.3d at 331 (quoting
Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1045 (7th Cir.
2000)). We determine whether a workplace was hostile based
on “all the circumstances” of the case. Harris, 510 U.S. at 23;
see also Hall, 713 F.3d at 331 (severity and pervasiveness must
be judged by “the totality of the circumstances”). And in the
circumstances of this case, Thompson’s talking and touching
took place in the context of his stalking.
Suppo testified that Thompson’s presence at the Glenview
Costco was “constant.” He followed Suppo around the store,
watching her from around corners. He stared at her from be-
hind clothes racks, disguised in sunglasses and a hat. He mon-
itored her movements and asked her to account for her
Nos. 17-2432 & 17-2454 13
conversations with men. He made trips to the warehouse to
see Suppo rather than to shop. He “constantly” asked her out
and “constantly” tried to give her his phone number. And
Thompson continued this dogged pursuit of Suppo even after
Don Currier told him to stay away from her, even after he
knew that Suppo had gone to the police, even after he had
assured both the police and Currier that he would avoid her,
and even though he knew that his attention scared her. His
behavior culminated in the bizarre, objectively frightening act
of filming Suppo, whom he called “mysterious Dawn.” A rea-
sonable juror could conclude that being hounded for over a
year by a customer despite intervention by management, in-
volvement of the police, and knowledge that he was scaring
her would be pervasively intimidating or frightening to a per-
son “of average steadfastness.” Frazier, 263 F.3d at 668.
Thompson’s outburst in the Mettawa warehouse supports
this conclusion. When Thompson saw Suppo and her father
there, he screamed expletives. This outburst did not contrib-
ute to the hostility of Suppo’s workplace because it occurred
after Thompson had been banned from the Glenview store. It
is relevant, however, to the jury’s evaluation of Thompson’s
behavior during the 13-month period in which he interacted
with Suppo at Glenview. Costco depicted Thompson as
friendly but overeager; the EEOC portrayed him as unstable
and obsessive. A reasonable juror aware of both the filming at
Glenview and the outburst at Mettawa could view Thomp-
son’s behavior between May of 2010 and September of 2011
through the lens of the EEOC’s portrayal.
14 Nos. 17-2432 & 17-2454
Last but certainly not least is the plenary “no contact” or-
der issued by the state court.2 According to Costco, the evi-
dence construed in the light most favorable to the EEOC per-
mits only one conclusion: that Suppo is an eggshell plaintiff
whom Thompson pestered rather than harassed. That posi-
tion is exceedingly difficult to maintain in light of the state
court’s conclusion that Thompson violated the Illinois Stalk-
ing No Contact Order Act. The then-effective version of that
Act provided that “‘[s]talking’ means engaging in a course of
conduct directed at a specific person” when the stalker
“knows or should know that this course of conduct would
cause a reasonable person to fear for his or her safety … or
suffer emotional distress.” 740 ILCS 21/10 § 10 (2010). 3 It de-
fined a “course of conduct” as “2 or more acts, including but
not limited to acts in which a respondent directly [or] indi-
rectly … follows, monitors, observes, surveils, threatens, or
communicates to or about, a person, [or] engages in other con-
tact ….” Id. And it described “emotional distress” as “signifi-
cant mental suffering, anxiety or alarm.” Id. After an adver-
sarial hearing, the state court concluded that Thompson had
violated this statute and issued a no-contact order prohibiting
him from (among other things) coming within 200 feet of
Suppo’s place of employment for a year. Given the state
court’s judgment that Thompson engaged in a course of con-
duct that would “cause a reasonable person to fear for his or
her safety … or suffer emotional distress,” it would be quite
2The state court initially issued an emergency, 21-day no-contact or-
der based on evidence submitted by Suppo. See 740 ILCS 21/95. It issued
the plenary no-contact order after an adversarial process.
3
The Illinois legislature recently made minor amendments to § 10.
Public Act 100-1000 (2018).
Nos. 17-2432 & 17-2454 15
something for us to say that a jury acted unreasonably by
reaching the same conclusion.
B.
It bears emphasis that an employer is not vicariously liable
for the sexual harassment of its employee by a customer.
There must be “a basis for employer liability,” Lapka, 517 F.3d
at 982, and an employer is responsible for its own negligence
if it is “reckless in permitting, or failing to prevent, negligent
or other tortious conduct by persons, whether or not his serv-
ants or agents, upon premises … under his control.” Dunn,
429 F.3d at 691 (quoting the Restatement (2d) of Agency
§ 213(d)); see also Lapka, 517 F.3d at 985 (“Title VII requires
only that the employer take steps reasonably likely to stop the
harassment.”); Frazier, 263 F.3d at 666 (“[A] violation of Title
VII that is based on a claim of harassment by a coworker
doesn’t occur until the employer has failed to take reasonable
steps to bring the harassment to an end.”). Costco’s liability
therefore depends not only on what Thompson did, but also
on how Costco responded. And while Costco did respond to
Suppo’s complaints about Thompson, it does not challenge
the jury’s decision that its response was unreasonably weak.
Because Costco doesn’t press that point, we don’t address it.
Costco’s only challenge is to the jury’s conclusion that
Thompson severely or pervasively harassed Suppo, and as
we have explained, that is a losing argument.
III.
On cross-appeal, the EEOC argues that the district court
erred in denying its motion for backpay covering the period
during which emotional distress rendered Suppo unable to
16 Nos. 17-2432 & 17-2454
work—a period that the EEOC defines as running from Sep-
tember of 2011, when Suppo went on unpaid medical leave,
to December of 2014, a little more than two years after Costco
terminated her. The district court’s decision was driven by its
view that backpay is available only to remedy discriminatory
discharge. Suppo could not recover backpay for the time be-
tween September 11, 2011 and November 19, 2012 because she
remained employed by Costco while she was on medical
leave. And she was not constructively discharged on Novem-
ber 19, 2012 because she did not quit: Costco fired her because
she had exhausted the 12-month leave of absence available
under her Employee Agreement, and it could not reasonably
accommodate her request for indefinite leave. 4 Because
Suppo could not show that she was constructively discharged
either when she left for medical leave or when she was termi-
nated, the district court reasoned, she was not entitled to
backpay.
The district court got it right with respect to the EEOC’s
claim for backpay after Costco terminated Suppo. We have
said that “[w]e can make it no plainer than to reiterate that
constructive discharge ‘refers to a situation in which the em-
ployee is not fired but quits.’” Jordan v. City of Gary, 396 F.3d
825, 837 (7th Cir. 2005) (quoting McPherson, 379 F.3d at 440).
4 Costco contacted Suppo on September 20th, notifying her that her
leave of absence had expired and requesting a time to discuss her return
to work. On October 4th, Suppo submitted a form from a physician indi-
cating that she would be unable to work for 1–2 years. On October 10th,
Costco informed Suppo that it interpreted her need for leave as “indefi-
nite,” and that it would proceed with the termination process unless she
provided additional information by October 25th. Suppo did not respond,
and Costco sent her a termination letter on November 19th, explaining
that it could not accommodate indefinite leave.
Nos. 17-2432 & 17-2454 17
Suppo did not quit; she was fired because she did not comply
with Costco’s requirement that she return to work. That was
the equivalent of walking off the job, and an employee who
fails to return to work rather than resigning cannot bring a
constructive discharge claim. Id.The district court misinterpreted our precedent, however,
when it stated that backpay is unavailable to remedy wages
lost during an unpaid leave. The district court reached that
conclusion based on Hertzberg v. SRAM Corp., which holds
that “[a] victim of discrimination [who] leaves his or her em-
ployment as a result of the discrimination must show either
an actual or constructive discharge in order to receive the eq-
uitable remedy of [backpay].” 261 F.3d 651, 659 (7th Cir. 2001).
The district court understood this to mean that any victim of
discrimination must show actual or constructive discharge to
recover backpay. But Hertzberg only addresses what a plaintiff
who “leaves his or her employment” must show—such a plaintiff
must show that her employer made her working conditions
so intolerable that she was forced to quit. Id. at 658. Hertzberg
does not address whether a plaintiff can recover backpay if
she does not leave her employment.
Townsend v. Indiana University answers that question. 995
F.2d 691, 693 (7th Cir. 1993). There, the plaintiff took unpaid
leave after being sexually assaulted at work. Her employer in-
sisted that the she was not entitled to backpay because she
remained an employee. We rejected the proposition that “in-
voluntary termination, whether in the form of outright dis-
charge or of constructive discharge (where the employer
makes life so unbearable for the employee that the latter quits)
is a sine qua non to prevailing under Title VII.” Id. at 693. We
held that the plaintiff could seek backpay for the wages she
18 Nos. 17-2432 & 17-2454
lost while on an unpaid leave that sexual harassment had
forced her to take. Id.The district court treated Hertzberg as superseding Town-
send, because we decided Hertzberg after a 1991 amendment
to Title VII authorized the recovery of compensatory and pu-
nitive damages. See 42 U.S.C. § 1981a(1) (providing that a
plaintiff can recover compensatory and punitive damages in
addition to equitable relief). But Hertzberg emphasizes that the
new remedies provisions “left undisturbed” the previously
available equitable remedies like backpay. Id. at 659. In so do-
ing, it expressly embraces rather than impliedly overrules our
preexisting case law on backpay. 5 Id. (“There is nothing in the
1991 Amendments to suggest that the case law applying those
prior [equitable] remedies is abrogated.” (quoting Mallinson-
Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir. 2000)).
Townsend remains good law.
Thus, the EEOC can recover backpay on Suppo’s behalf if
it can show that Suppo’s work environment was so hostile
that she was “forced to take unpaid leave.” Townsend, 995 F.2d
693. As with constructive discharge, a mere causal link be-
tween the discrimination and the change in employment sta-
tus is insufficient. The victim of the harassment must establish
that her working conditions were so objectively intolerable
that they forced a change in employment status—here, from
regular employment to unpaid leave. If a reasonable person
in Suppo’s shoes would have felt forced by unbearable work-
ing conditions to take an unpaid medical leave in September
5 It
is also worth noting that even though Townsend arose before the
statute was amended, it was decided afterward. Townsend, 995 F.2d at 694.
Yet the opinion contains no suggestion that backpay for unpaid leave was
a one-trip ticket.
Nos. 17-2432 & 17-2454 19
of 2011, then Suppo is entitled to recover backpay for some
period of time following the involuntary leave. 6 That period,
however, cannot extend beyond the date that Costco termi-
nated her employment.
***
The district court properly denied Costco’s motion for
judgment as a matter of law. But because it did not address
whether the sexual harassment that Suppo suffered while at
Costco forced her to take unpaid medical leave, we REMAND
to the district court so that it can decide that question in the
first instance.
Backpay “is a reasonable estimate of the harm suffered as a result of
6
[the adverse employment action],” determined by (1) “measuring the dif-
ference between actual earnings for the period and those which she would
have earned absent the discrimination by [the] defendant” and (2) reduc-
ing that amount if the defendant can show “failure to take reasonable ef-
forts to mitigate her damages.” Horn v. Duke Homes, 755 F.2d 599, 606–08
(7th Cir. 1985).