Hostetler, Ann M. v. Quality Dining Inc ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-2386
ANN M. HOSTETLER,
Plaintiff-Appellant,
v.
QUALITY DINING, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 97 C 160--Robin D. Pierce, Magistrate Judge.
Argued January 7, 1999--Decided June 29, 2000
Before FLAUM, EASTERBROOK, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Ann Hostetler alleges
that a fellow supervisory employee at a South
Bend, Indiana Burger King grabbed her face one
day at work and stuck his tongue down her throat.
On the following day, he tried to kiss her again
and when she struggled to evade him, he began to
unfasten her brassiere, threatening to "undo it
all the way." When Hostetler reported these
incidents to her superiors, her district manager
allegedly remarked that he dealt with his
problems by getting rid of them. Days later,
Hostetler was transferred to a distant Burger
King location. She later filed this sex
discrimination suit against her employer under
Title VII of the Civil Rights Act of 1964, 42
U.S.C. sec. 2000e-2(a)(1), contending that she
had endured a hostile working environment as a
result of the alleged harassment. See Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.
Ct. 2399, 2405 (1986). The district court granted
summary judgment to the defendant, reasoning that
the harassment Hostetler describes was not
severe, see id. at 67, 106 S. Ct. at 2405; Saxton
v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th
Cir. 1993), and that, in any event, her employer
absolved itself of liability by responding to her
complaint with steps reasonably designed to
preclude further harassment, see, e.g.,
Adusumilli v. City of Chicago, 164 F.3d 353, 361
(7th Cir. 1998), cert. denied, 120 S. Ct. 450(1999). Hostetler v. Quality Dining, Inc., 1998
WL 456436 (N.D. Ind. April 23). Although a finder
of fact might reach the same conclusions after a
trial, we do not believe it appropriate to hold,
as a matter of law, that the alleged harassment
was not severe or that her employer’s response
was non-negligent. We therefore reverse the grant
of summary judgment.
I.
The facts that follow represent a reading of
the record that is favorable to Hostetler. We
have noted some of the factual matters that are
in dispute, but as this case was resolved against
Hostetler on summary judgment, we are of course
obligated to credit her version of events over
the defendant’s. E.g., Valance v. Wisel, 110 F.3d
1269, 1276 (7th Cir. 1997).
Quality Dining, Inc. ("Quality"), through its
subsidiary Bravokilo, Inc., owns some twenty-four
Burger King restaurants in Northern Indiana.
Hostetler began work for Quality in 1993 as a
managerial employee. As a supervisor, Hostetler
was subject to transfer on an as needed basis
among the various restaurants that Quality owned,
and over the next several years, she worked at a
number of different Burger King stores in South
Bend and Mishawaka, Indiana.
In June of 1996, Hostetler was working as a
first assistant supervisor at the Burger King on
Ireland Road in South Bend. As a first assistant,
Hostetler reported to both the store and district
managers. Kim Ridenour was the store manager at
that time. Jim Kochan was the district manager,
and in that capacity looked after all of the
stores in South Bend and Mishawaka.
Hostetler asserts that she was at work on June
3, using the computer in the restaurant’s cash
booth, when Tim Payton, a second assistant
supervisor, grabbed her face and "stuck his
tongue down [her] throat." Hostetler Dep. 44. She
pulled away from him, gathered her belongings,
and left the store at once, although her shift
was not yet complete. She made no report of the
incident to Ridenour at that time.
On the following day, Hostetler was again doing
some work on the computer in the restaurant’s
office. Her back was to the office door, and as
she was preoccupied with the task at hand, she
did not turn when Payton entered the room. He
came up from behind her, took her face in his
hands, and turned it toward him. Thinking that he
was about to kiss her again, Hostetler bent over
and placed her head between her knees. Payton
then placed his hands on her back, grasped her
brassiere, and began to unfasten it. Hostetler
told him to take his hands off her, which
prompted him to laugh and say that "he would undo
it all the way." Hostetler Dep. 48. Payton
managed to unfasten four of the five snaps on
Hostetler’s bra before Sabrina Ludwig, another
store employee, walked into the office. Payton
left the area abruptly.
One other episode requires mention. Either
before the incident of June 3 or after the
incident of June 4--but either way during the
same week as these two incidents--Payton
approached Hostetler as she was serving customers
at the counter and told her, in crude terms, that
he could perform oral sex on her so effectively
that "[she] would do cartwheels." Hostetler Dep.
49.
After the June 4 incident, Hostetler decided to
report the harassment to her superiors. The
ensuing chronology is in some dispute. Hostetler,
Ridenour, and Kochan have all given accounts that
differ in certain respects. Again, as this case
comes to us on summary judgment, we of course are
compelled to credit Hostetler’s recitation of
events.
Hostetler telephoned Ridenour on June 4 and
reported the harassment. Hostetler told Ridenour
that she "didn’t think [Payton] needed to be
fired, he just needed to be talked to." Hostetler
Dep. 62. Ridenour said that she would bring the
matter to Kochan’s attention the next day when
she met with him. Hostetler saw Ridenour the
following day and asked how the discussion had
gone, but Ridenour said that she had forgotten to
mention the harassment. Ridenour again promised
to speak with Kochan, but when Hostetler followed
up with her late in the day on June 6, she had
still not done so. At that point, Hostetler opted
to leave Kochan a voice message. In that message,
which Quality later transcribed, Hostetler
detailed the harassment that had occurred on June
3 and 4 and requested Kochan to "take care of
it."/1
Kochan was on vacation from June 6 through June
9,/2 but he met with Hostetler and Ridenour
regarding the reported harassment on June 10. As
Hostetler recounts the meeting, Kochan accused
her of lying and noted that Payton had denied her
allegations. Kochan asked Hostetler, "Do you know
what I do when I have problems, Ann?" When
Hostetler said she did not, Kochan told her, "I
get rid of them." Hostetler Dep. 67. Hostetler
took Kochan to mean that he might transfer her,
and she pleaded with him not to do so; Kochan
said he would think about it. Then, after noting
that he had a copy of Hostetler’s voice message,
Kochan asked Ridenour whether she had any
problems with Hostetler’s work performance.
Ridenour expressed concern over the fact that
Hostetler had left work early on June 3 (after
Payton had kissed her)./3
On June 12, Quality transferred Hostetler to a
Burger King in Goshen, Indiana. According to
Kochan, the district manager for the Goshen area,
T. K. Brenneman, had asked him whether he could
spare an employee for a store in his district
that was managerially short-staffed. Kochan avers
that he thought of Hostetler, because the Ireland
Road store was "heavy" with supervisory employees
and because he knew that Hostetler and Ridenour
had a personality conflict. Kochan Dep. 34, 36.
Brenneman had also worked with Hostetler before
and purportedly was pleased at the prospect of
having her join his staff. Such transfers are
commonplace at Quality, and Kochan asserts that
the move was not intended to punish her.
Hostetler suspected otherwise, in light of
Kochan’s prior remark about getting rid of his
problems./4
The transfer to Goshen proved to be a hardship
for Hostetler. The commute to and from the Goshen
store consumed two and one-half hours of
Hostetler’s day. At the outset, Hostetler was
assigned to close the store nearly every evening,
which meant that she worked until 4:00 a.m. This
made it difficult for Hostetler, once she
returned home, to rise with her daughters in the
morning. She would also be assigned to work
fourteen to sixteen-hour days and then be
scheduled to return to the store after only six
hours off.
Meanwhile, Hostetler’s transfer left the Ireland
Road Burger King in South Bend with no first
assistant supervisors. None of the second
assistants was qualified for promotion to first
assistant, so Hostetler’s position was left
unfilled. This posed no problem for the store,
Ridenour testified, because second assistants
could perform nearly all functions that first
assistants could. One exception was that only a
first assistant could manage a store without
supervision from the store manager. Thus, to the
extent that Ridenour permitted second assistants
to run the store in her absence, she may have
done so in violation of Quality’s rules.
After six weeks at the Goshen store, Hostetler
asked for another assignment. Hostetler spoke
with Jerry Fitzpatrick, Kochan’s superior, and
complained that the company had sent her to
Goshen as punishment for complaining about
Payton. Fitzpatrick denied her assertion:
I don’t care what happened between you and Mr.
Payton. What happened between you and Mr. Payton,
happened between you and Mr. Payton. All I care
about is resolving our business relationship so
that you can be happy and I can be happy and my
business can be productive.
Hostetler Dep. 84-85./5 Fitzpatrick also
emphasized that Hostetler was a valued employee:
[Y]ou didn’t get transferred because of anything
that you did wrong, Ann. You got transferred
because we need a good player. You’re one of our
best players. You’ve got a future with our
company.
Hostetler Dep. 84. "Bologna," Hostetler retorted.
Id. "You don’t send your best player off to
another team." Id. Fitzpatrick predicted that she
would "get the point" the following week,
informing her that she would be transferred to
the Lincoln Way East store in Mishawaka and
promoted to store manager. Id. at 85.
Notwithstanding her reassignment and promotion,
Hostetler decided to leave the company. She
resigned in August 1996 and subsequently went to
work for a competing fast food chain. She has
sought counseling for the trauma that she
attributes to the alleged harassment that gave
rise to this suit, and at the time of her
deposition was taking Prozac "because [her]
nerves [were] a wreck." Hostetler Dep. 92.
After reviewing the record, the district court
concluded that Quality was entitled to summary
judgment on either of two grounds. The court
noted that a hostile environment claim requires
proof of harassment sufficiently severe or
pervasive to alter the plaintiff’s working
environment. Hostetler v. Quality Dining, Inc.,
1998 WL 456436, at *8, quoting Meritor Sav. Bank,
FSB v. Vinson, supra, 477 U.S. at 67, 106 S. Ct.
at 2405. The small number of acts alleged, taking
place as they did over a matter of days, ruled
out any argument that the harassment was
pervasive. 1998 WL 456436, at *11; see Saxton v.
American Tel. & Tel. Co., supra, 10 F.3d at 533("’relatively isolated’ instances of non-severe
misconduct will not support a hostile environment
claim"), quoting Weiss v. Coca-Cola Bottling Co.
of Chicago, 990 F.2d 333, 337 (7th Cir. 1993).
In the district court’s view, the harassment of
which Hostetler complained could not be described
as severe. 1998 WL 456436, at *11. In previous
cases, we had deemed certain manifestations of
physical harassment--including attempts to kiss
a co-worker, touching her on the shoulder or
thigh, and jumping out of bushes and attempting
to grab the plaintiff--not to be severe. See
Weiss, 990 F.2d at 337; Saxton, 10 F.3d at 533-
34. The district court viewed the acts described
by Hostetler as comparable. 1998 WL 456436, at
*10. The court also cited Hostetler’s own
testimony as evidence that the conduct in
question fell into the category of merely vulgar
and inappropriate behavior rather than actionable
harassment. Id. at *11. In describing the voice
mail she had left Kochan, Hostetler had
testified:
I told him--I kind of chuckled and said, "We all
know that I’m gifted on top. I don’t have one or
two snaps on my bra." I said, "I don’t think that
he should be fired, but you definitely need to
speak to him, because we wouldn’t want somebody’s
father or mother coming in here and killing this
man because he’s messed with their kid."
Hostetler Dep. 65. In the court’s view,
"[Hostetler’s] own comments speak more to the
inappropriateness of Mr. Payton’s remarks and
actions, rather than to a severe, hostile, or
intimidating environment." 1998 WL 456436, at
*11.
Alternatively, assuming that Payton’s actions
were severe enough to constitute actionable
harassment, Quality could not be held liable for
those actions because, once notified of the
harassment, it "responded promptly and took
reasonable steps to resolve the problem." Id. at
*12, citing Baskerville v. Culligan Int’l Co., 50
F.3d 428, 431 (7th Cir. 1995). The court noted
first that Kochan was the individual responsible
for handling personnel problems, and as soon as
he had received Hostetler’s voice message, he had
scheduled meetings with the persons involved for
the morning of his return to work from vacation.
1998 WL 456436, at *13. Second, although
Hostetler suggested that Quality had not
disciplined Payton appropriately, the court noted
that she herself had said he should not be fired,
but rather "talked to," and talked to he was. Id.Finally, the court rejected Hostetler’s
contention that her transfer to Goshen was a
negligent response to the harassment. Kochan’s
deposition testimony established that the company
transferred Hostetler at least in part in order
to accommodate the need for additional managerial
employees at the Goshen restaurant and to resolve
a personality conflict between Hostetler and
Ridenour. Id.; see n.7, infra. Although the
transfer imposed some hardships on Hostetler, "it
also served a legitimate business purpose while
separating her from the accused harasser." 1998
WL 456436, at *14.
II.
"Summary judgment is appropriate if there is no
genuine issue of material fact and the moving
party is entitled to judgment as a matter of
law." Shermer v. Illinois Dep’t of Transp., 171
F.3d 475, 477 (7th Cir. 1999). We review the
district court’s summary judgment ruling de novo,
construing the record in the light most favorable
to the non-movant, Hostetler. E.g., Dawn Equip.
Co. v. Micro Trak Sys., Inc., 186 F.3d 981, 986
(7th Cir. 1999). So long as no reasonable finder
of fact could find for Hostetler, summary
judgment is mandatory. Fed. R. Civ. P. 56(c); Matney
v. County of Kenosha, 86 F.3d 692, 695 (7th Cir.
1996). If, however, the record leaves room for a
finding in Hostetler’s favor, then we must
reverse the grant of summary judgment and remand
for a trial. See Bultemeyer v. Fort Wayne
Community Schools, 100 F.3d 1281, 1283 (7th Cir.
1996), citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986).
A.
As the district court recognized, sexual
harassment is actionable under Title VII only
when it is "sufficiently severe or pervasive ’to
alter the conditions of [the victim’s] employment
and create an abusive working environment.’"
Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. at
2405, quoting Henson v. City of Dundee, 682 F.2d
897, 904 (11th Cir. 1982). Whether the harassment
rises to this level turns on a constellation of
factors that include "the frequency of the
discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a
mere offensive utterance; and whether it
unreasonably interferes with an employee’s work
performance." Harris v. Forklift Sys., Inc., 510
U.S. 17, 23, 114 S. Ct. 367, 371 (1993); see also
Faragher v. City of Boca Raton, 524 U.S. 775,
787-88, 118 S. Ct. 2275, 2283 (1998). We also
assess the impact of the harassment upon the
plaintiff’s work environment both objectively and
subjectively. The work environment cannot be
described as "hostile" for purposes of Title VII
unless a reasonable person would find it
offensive and the plaintiff actually perceived it
as such. Faragher, 118 S. Ct. at 2283, citing
Harris, 510 U.S. at 21-22, 114 S. Ct. 370-71.
We may make short work of the subjective
inquiry, for the record readily supports the
inference that Hostetler perceived her work
environment as hostile as a result of the
harassment. She left work abruptly after the June
3rd incident, when Payton kissed (or tongued)
her. The following day, when Payton approached
Hostetler from behind, grasped her face, and
turned it toward him, she immediately bent over
and placed her head between her knees in an
effort to avoid a second "kiss." Promptly after
that encounter, she reported Payton’s conduct to
Ridenour. Moreover, after she perceived that
Ridenour was not pursuing the matter in a timely
matter with Kochan, Hostetler left a voice
message for him herself, reiterating that she
found Payton’s behavior "unacceptable" and asking
Kochan to "take care of it." See n. 1, supra.
These actions bespeak concern over Payton’s
actions and an unwillingness to tolerate further
harassment.
Whether Hostetler’s work environment objectively
could be described as hostile is a somewhat
closer question. The Supreme Court has reminded
us that "the objective severity of the harassment
should be judged from the perspective of a
reasonable person in the plaintiff’s position,
considering ’all the circumstances.’" Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81,
118 S. Ct. 998, 1003 (1998), quoting Harris, 510
U.S. at 23, 114 S. Ct. at 371. That assessment
also must be made with "an appropriate
sensitivity to social context," 523 U.S. at 82,
118 S. Ct. at 1003, lest Title VII become a
"general civility code for the American
workplace," id. 80, 118 S. Ct. at 1002. As we
observed in Baskerville:
Drawing the line is not always easy. On one side
lie sexual assaults; other physical contact,
whether amorous or hostile, for which there is no
consent express or implied; uninvited sexual
solicitations; intimidating words or acts;
obscene language or gestures; pornographic
pictures. Meritor Savings Bank v. Vinson, 477
U.S. 57, 67, 106 S. Ct. 2399, 2405-06, 91 L.Ed.2d
49 (1986); Harris v. Forklift Systems, Inc., 510
U.S. 17, 21, 114 S. Ct. 367, 370, 126 L.Ed.2d 295(1993); Carr v. Allison Gas Turbine Division, 32
F.3d 1007, 1009-10 (7th Cir. 1994). On the other
side lies the occasional vulgar banter, tinged
with sexual innuendo, of coarse or boorish
workers. Meritor Savings Bank v. Vinson, supra,477 U.S. at 61, 106 S. Ct. at 2402-03; Rabidue v.
Osceola Refining Co., 805 F.2d 611, 620-21 (6th
Cir. 1986); Katz v. Dole, 709 F.2d 251, 256 (4th
Cir. 1983). We spoke in Carr of "the line that
separates the merely vulgar and mildly offensive
from the deeply offensive and sexually
harassing." 32 F.3d at 1010. It is not a bright
line, obviously, this line between a merely
unpleasant working environment on the one hand
and a hostile or deeply repugnant one on the
other . . . .
50 F.3d at 430-31.
We have no doubt that the type of conduct at
issue here falls on the actionable side of the
line dividing abusive conduct from behavior that
is merely vulgar or mildly offensive. Two of the
three acts at issue in this case involved
unwelcome, forcible physical contact of a rather
intimate nature. Having a co-worker insert his
tongue into one’s mouth without invitation and
having one’s brassiere nearly removed is not
conduct that would be anticipated in the
workplace, and certainly not in a family
restaurant. A reasonable person in Hostetler’s
position might well experience that type of
behavior as humiliating, and quite possibly
threatening. See Harris, 510 U.S. at 23, 114 S.
Ct. at 371. Even the lewd remark that Payton
allegedly made to Hostetler was more than a
casual obscenity. Referring as it did to a
hypothetical sexual act between Hostetler and
Payton, it readily could be interpreted as an
(uninvited) sexual proposition. These were not,
in sum, petty vulgarities with the potential to
annoy but not to objectively transform the
workplace to a degree that implicates Title VII.
A workplace rife with the behavior Hostetler
describes could readily be described as a hostile
working environment. See generally Harris, 510
U.S. at 21-22, 114 S. Ct. at 370-71.
The more specific, and more difficult, question
that we must answer is whether the behavior was
so serious that the finder of fact could label
Hostetler’s work environment hostile
notwithstanding the limited number of the acts
involved. Harassment need not be severe and
pervasive to impose liability; one or the other
will do. Smith v. Sheahan, 189 F.3d 529, 533 (7th
Cir. 1999); see Harris, 510 U.S. at 21, 114 S.
Ct. at 370; Meritor, 477 U.S. at 66, 106 S. Ct.
at 2405. There is no "magic number" of incidents
required to establish a hostile environment. Doe
v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445
(7th Cir. 1994), citing Rodgers v. Western-
Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.
1993). We have repeatedly recognized that even
one act of harassment will suffice if it is
egregious. See Smith, 189 F.3d at 533-34; DiCenso
v. Cisneros, 96 F.3d 1004, 1009 (7th Cir. 1996);
Daniels v. Essex Group, Inc., 937 F.2d 1264,
1273-74 & n.4 (7th Cir. 1991); King v. Board of
Regents of Univ. of Wis. Sys., 898 F.2d 533, 537
(7th Cir. 1990); Bohen v. City of East Chicago,
Indiana, 799 F.2d 1180, 1186-87 (7th Cir. 1986);
see also Guess v. Bethlehem Steel Corp., 913 F.2d
463, 464 (7th Cir. 1990) (implicitly assuming
single act sufficient to establish hostile
environment).
The two principal acts at issue in this case
were physical, rather than verbal harassment.
Physical harassment lies along a continuum just
as verbal harassment does. There are some forms
of physical contact which, although unwelcome and
uncomfortable for the person touched, are
relatively minor. Cumulatively or in conjunction
with other harassment, such acts might become
sufficiently pervasive to support a hostile
environment claim, but if few and far between
they typically will not be severe enough to be
actionable in and of themselves. A hand on the
shoulder, a brief hug, or a peck on the cheek lie
at this end of the spectrum. Even more intimate
or more crude physical acts--a hand on the thigh,
a kiss on the lips, a pinch of the buttocks--may
be considered insufficiently abusive to be
described as "severe" when they occur in
isolation. See Adusumilli v. City of Chicago,
supra, 164 F.3d at 361-62; Koelsch v. Beltone
Elecs. Corp., 46 F.3d 705, 706-07, 708 (7th Cir.
1995); Saxton, 10 F.3d at 528, 534; Weiss, 990
F.2d at 337; Scott v. Sears, Roebuck & Co., 798
F.2d 210, 211-12, 213-14 (7th Cir. 1986). But the
acts described in these cases lie at the outer
boundaries of conduct that can be labeled non-
severe at the summary judgment stage. When the
harassment moves beyond the sort of casual
contact which (if it were consensual) might be
expected between friendly co-workers, and
manifests in more intimate, intrusive forms of
contact, it becomes increasingly difficult to
write the conduct off as a pedestrian annoyance.
Recall that the types of physical acts we are
discussing in this case already place us within
the realm of conduct that unquestionably is
harassing. See Baskerville, 50 F.3d at 430-31.
The sole question is whether these acts are
severe enough, without the added weight of
repetition over time or cumulation with other
acts of harassment, to stand alone as the basis
for a harassment claim. Holding such acts not to
be severe as a matter of law is another way of
saying that no reasonable person could think them
serious enough to alter the plaintiff’s work
environment. See Harris, 510 U.S. at 21-22; 114
S. Ct. at 370; Bermudez v. TRC Holdings, Inc.,
138 F.3d 1176, 1181 (7th Cir. 1998). That
proposition becomes dubious when the conduct at
issue involves unwelcome contact with the
intimate parts of one’s body. Cf. DiCenso, 96
F.3d at 1009 (noting that harasser "did not touch
an intimate body part").
The physical, intimate, and forcible character
of the acts at issue here persuades us that a
factfinder could deem Hostetler’s work
environment hostile. Accepting Hostetler’s
version of events as true, her co-worker did not
simply steal a quick kiss from her lips, but,
holding her face in his hands, forced his tongue
into her mouth. When Hostetler subsequently used
her body to shield herself from an apparent
repeat of that intrusion, Payton began to
unfasten her bra, threatening to do so completely
and stopping only when another employee entered
the office. These acts exceed the kind of fumbled
and inappropriate attempts to kiss or embrace the
plaintiff that we dealt with in Saxton, Weiss,
and like cases. A factfinder reasonably could
interpret the alleged course of conduct as
sufficiently invasive, humiliating, and
threatening to poison Hostetler’s working
environment--indeed, overtones of an attempted
sexual assault can be seen in the second incident
in particular.
That Hostetler herself was of the view that
Payton should not be fired, but spoken to--a fact
on which the district court and Quality have
placed some emphasis, 1998 WL 456436, at *11;
Quality Br. at 21-22--does not speak to the
objective severity of the harassment. Even as
evidence of Hostetler’s own thoughts, it bears on
the manner in which Payton was to be disciplined
rather than the gravity of the harassment. It
certainly does not detract from the proposition
that Hostetler subjectively found the harassment
abusive and wanted it stopped, or that a
reasonable person would feel the same. The remark
reflects nothing more than Hostetler’s subjective
perception that talking to Payton would suffice
to achieve that end./6
B.
As this is a case of co-worker harassment,
Quality/7 will not be liable for the hostile
environment absent proof that it failed to take
appropriate remedial measures once apprised of
the harassment. Adusumilli v. City of Chicago,
supra, 164 F.3d at 361, citing Baskerville v.
Culligan Int’l Co., supra, 50 F.3d at 43 132; Doe
v. R.R. Donnelley & Sons Co., supra, 42 F.3d at
446; Guess, 913 F.2d at 465; 29 C.F.R. sec.
1604.1 l(d). Hostetler contends that the
company’s response was negligent in two respects:
first, Ridenour and Kochan waited until June 10,
six days after she first reported the harassment,
to address her complaint; and second, the company
resolved the situation in part by transferring
Hostetler to a highly inconvenient location.
We need not consider whether a six-day delay in
responding to Hostetler’s complaint might be
negligent. An employer is no doubt obligated to
act with dispatch when it is informed that an
employee is effectively assaulting his co-
workers. See Baskerville, 50 F.3d at 432. But in
this case there is no evidence that Hostetler was
in any way injured by Quality’s failure to act
more quickly. There is, for example, no proof to
the effect that the harassment continued after
June 4, when Hostetler first reported the
harassment to Ridenour. It is possible that
Hostetler was verbally harassed in the interim
between June 4 and June 10. We know from
Hostetler’s testimony that either before the June
3rd incident or after the June 4th incident,
Payton purportedly made the lewd remark to
Hostetler as she was waiting on customers. Yet,
given Hostetler’s inability to recall the timing
of that remark more precisely, there is no proof
that the remark, or any other harassment, post-
dated her complaint to Ridenour. See Avery v.
Mapco Gas Prods., Inc., 18 F.3d 448, 453-54 (7th
Cir. 1994). Indeed, the record does not even tell
us whether Hostetler and Payton worked any shifts
together between June 4 and June 10. Cf.
Adusumilli, 164 F.3d at 362 (in some cases, mere
presence of harasser can create hostile work
environment). Under these circumstances, there
would be no point in us determining whether the
circumstances obligated Quality to act more
quickly than Hostetler asserts that it did.
The factfinder could determine that when Quality
did act, one of the steps it took in response to
the harassment allegations was to transfer
Hostetler to another location. That point is
disputed./8 As we have noted, Kochan avers that
he made the transfer decision when Brenneman, the
manager of the Goshen district, told him that he
needed an additional supervisor to cope with a
shortage at the Goshen restaurant. Hostetler
seemed like the logical choice to Kochan because
the Ireland Road store where Hostetler worked had
a surplus of managers, there was a personality
conflict between Hostetler and Ridenour, and
Brenneman knew and liked Hostetler. Nonetheless,
a factfinder might infer from Kochan’s purported
remark to Hostetler two days earlier that he
deals with his problems by getting rid of them
that Kochan was predisposed to transfer Hostetler
out of his district in order to resolve her
complaint. The factfinder might also find it
noteworthy that Kochan chose to transfer
Hostetler notwithstanding the fact that her
departure from the Ireland Road store in South
Bend apparently left no one at that location who
could, consistent with company policy, manage the
store in Ridenour’s absence. We shall therefore
assume for the remainder of our discussion that
Quality did, in fact, transfer Hostetler to
Goshen in whole or in part as a means of
addressing her charge of harassment. The
factfinder might determine otherwise, of course.
In that event, there would be no need to consider
the propriety of the transfer as a remedial
measure. But as this is summary judgment, we
shall proceed on the assumption that the transfer
was made to resolve the situation between
Hostetler and Payton.
Hostetler is not asserting that the transfer
failed to stop the harassment./9 So far as the
record reveals, once Hostetler was transferred,
she never had any contact with Payton again.
Nonetheless, she argues that the transfer was
inappropriate as a remedial measure because it
left her worse off than she was before the
harassment occurred.
The cases recognize that there are some actions
an employer might take in response to a worker’s
complaint of harassment that will, irrespective
of their success in bringing the harassment to a
halt, subject the employer to liability:
A remedial measure that makes the victim of
sexual harassment worse off is ineffective per
se. A transfer that reduces the victim’s wage or
other remuneration, increases the disamenities of
work, or impairs her prospects for promotion
makes the victim worse off. Therefore such a
transfer is an inadequate discharge of the
employer’s duty of correction.
Guess v. Bethlehem Steel Corp., supra, 913 F.2d
at 465; see also Steiner v. Showboat Op. Co., 25
F.3d 1459, 1464 (9th Cir. 1994), cert. denied, 513
U.S. 1082, 115 S. Ct. 733 (1995); Ellison v.
Brady, 924 F.2d 872, 882 (9th Cir. 1991).
Negligence of this nature exposes the employer
not to liability for what occurred before the
employer was put on notice of the harassment, but
for the harm that the employer inflicted on the
plaintiff as a result of its inappropriate
response. Recall that in the usual case of co-
worker harassment, the employer becomes liable to
the employee only when it knows or should know
that wrongdoing is afoot and yet fails to take
steps reasonably designed to stop it. See Guess,
913 F.2d at 465. In that scenario, the employer
(provided it exercised due care in hiring the
harasser) typically is held to account only for
injuries that occur after the point at which it
is on notice of the harassment--in other words,
injuries that the employer could have prevented
but did not. Where, however, the employer takes
action that puts a stop to the harassment, but in
a way that inappropriately forces the plaintiff
to bear the costs, it is the plaintiff’s loss in
pay, her demotion, or the other "disamenities of
work" for which she is entitled to compensation.
Here, then, Quality does not face liability for
the harm that Payton allegedly inflicted on
Hostetler. So far as the record reveals, Quality
had no reason to know that Payton was mistreating
anyone until Hostetler reported the harassment to
Ridenour. Moreover, as we have noted, there is no
proof that the harassment persisted after
Hostetler put Quality on notice of Payton’s
alleged misconduct. Supra at 17-18. The transfer
to Goshen appears to have terminated all contact
between Hostetler and Payton and thus foreclosed
any opportunity for the harassment to recur. The
company’s asserted liability instead springs from
the transfer itself. If, as Hostetler argues,
Quality transferred her as a means of resolving
the harassment, and if the transfer was a per se
negligent response as discussed in Guess, then
Quality could be held liable for the harm that
the transfer caused her.
Based on the record before us, the factfinder
could conclude that the transfer to Goshen left
Hostetler materially worse off, and that the
decision to transfer her was therefore a
negligent response to the alleged harassment.
Hostetler suffered no loss in pay or rank, nor
does it appear that her prospects for promotion
diminished--on the contrary, she was promoted to
store manager when, at her request, she was
transferred back to the South Bend area. On the
other hand, by Hostetler’s description (which at
this point is undisputed), the new assignment
brought with it a lengthy commute and a marathon
work schedule. In these concrete respects, the
posting objectively could be viewed as a
burdensome one. As a means of remediating the
harassment Hostetler claimed to have endured,
then, the transfer could be deemed ineffective
per se. See Steiner, 25 F.3d at 1464 ("a victim
of sexual harassment should not have to work in
a less desirable location as a result of the
employer’s remedial plan"), citing Intlekofer v.
Turnage, 973 F.2d 773, 779-80 [& n.9] (9th Cir.
1992) (opinion of Hall, J.), and Ellison, 924
F.2d at 882; Quiroz v. Ganna Constr., 1999 WL
59836, at *22 (N.D. Ill. Jan. 27) (Coar,
J.)./10
That Quality had the right to transfer
Hostetler, and that such transfers were
commonplace, does not stand in the way of such a
finding. Quality’s authority to transfer
Hostetler is not in question; the reasonableness
of the transfer as a remedial measure is. Title
VII obligates an employer to take appropriate
corrective measures when it knows or has reason
to know that one of its employees is sexually
harassing another. E.g., Guess, 913 F.2d at 465.
The employer breaches the duty of care it owes to
the harassed employee when the steps it takes in
response to the harassment render her job
demonstrably and significantly less rewarding or
desirable. The harassment might cease as a result
of these measures, but the plaintiff is
effectively made to bear the costs. See id.III.
Questions of material fact persist in this case
as to the objective severity of the harassment
alleged and the propriety of the defendant’s
response. We therefore REVERSE the entry of summary
judgment in favor of Quality and REMAND for a
trial.
/1 The transcript of Hostetler’s message (the
accuracy of which is not in dispute) reads as
follows:
There is a situation that occurred this week in
the restaurant and I didn’t bring it to your
attention right away. I took it to Kim (Ridenour)
and she hasn’t been able to discuss it with you
so now I am notifying you because it has been 2
days and you need to know about it.
On Monday (June 3, 1996), I was in the back d.t.
and Tim (Payton) came back there and I was
running a report and he was talking to me. He
grabbed my face and put his lips on mine. I
dismissed it, came home and told Mark
(boyfriend). I didn’t tell him that he actually
put his lips on me but I told him he grabbed my
face and tried to kiss me. He asked me if I said
anything and I told him no, maybe it was a one
time thing.
The next day (June 4, 1996), I was doing the bank
break, sitting at the computer at the desk and he
came up behind me, grabbed my face again and was
literally pulling on my face and I put my head
between my legs and when I did that he grabbed
the back of my bra and, of course, we all know I
am well gifted up there, and my bra doesn’t have
one or two snaps, it has 5 and all of them except
one were undone and then later on, I was bending
over to get a quarter that fell underneath the
desk and my butt was sticking up and he said--
well that looks real good or something like that.
So I told Kim I can put up with them and I am
used to working in a restaurant with a bunch of
men and that was fine, but there is a point, and
that is you don’t put your hands on me, you don’t
kiss me, and you don’t undo my bra and I told her
that I should be able to handle this myself and
I like Tim, he does a good job and is a hard
worker, but to me that is something that is
unacceptable so I am just letting you know so you
can take care of it. If you have any questions,
I will be in the restaurant tomorrow between 9
and 3. I’ll talk to you later.
R. 27, attachment. We note that Hostetler does
not rely on the remark that Payton purportedly
made on June 4 when she bent over to retrieve a
quarter as evidence of a hostile work
environment.
/2 Ridenour avers that during this period, she began
to investigate Hostetler’s complaint. She spoke
with Hostetler herself, of course, and apparently
two other female employees approached her to
report their own uncomfortable experiences with
Payton. Ridenour also spoke with Sabrina Ludwig,
who by Hostetler’s account had walked into the
office when Payton was unfastening her bra, but
Ridenour cannot recall what, if anything, Ludwig
said about the incident.
/3 Kochan and Ridenour recount the June 10 meeting
differently. Kochan asserts that he and Ridenour
actually met with Hostetler twice on that date.
At the first meeting, according to Kochan,
Hostetler elaborated on her complaint. Kochan
assured her that harassment would not be
tolerated and that an investigation would be
commenced immediately. Kochan and Ridenour later
met with Payton (who denied Hostetler’s
allegations), and Kochan admonished him that even
if events had not transpired "exactly as Ann
said," anything that might be construed as sexual
harassment was inappropriate and if not stopped
would result in disciplinary action. Kochan Dep.
22. Then, according to Kochan, he and Ridenour
met with Hostetler a second time. At that point,
he informed Hostetler that Payton had denied the
allegations, but that he and Ridenour had
apprised him of the company’s policy on sexual
harassment and Payton had promised not to engage
in any behavior "that could be misconstrued as
offensive or sexual harassment at all." Kochan
Dep. 22. Kochan indicates that after this second
meeting with Payton, he briefed Bill Wargo, of
Quality’s human resources department, on the
situation, and Wargo assumed responsibility for
the investigation. Kochan’s understanding was
that Wargo continued to look into the matter
until, at some later date, Payton quit his
employment with Quality.
For her part, Ridenour remembers only one
meeting with Hostetler. Her
version posits an initial meeting between Kochan,
Payton, and herself, during which Payton denied
having harassed Hostetler but was warned that
such behavior was inappropriate and should cease.
Payton "said he was an overly friendly type
person, he liked to give hugs and things like
that, and Jim [Kochan] told him that could be
construed as sexual harassment in some cases."
Ridenour Dep. 26. Ridenour considered Payton to
have been disciplined at that point. Only then,
by Ridenour’s account, did she and Kochan meet
with Hostetler. At that time, Hostetler was
informed that Payton had denied the allegations.
Later that same day, according to Ridenour, she
spoke with Hostetler again, at which time
Hostetler indicated to her that the situation had
been resolved to her satisfaction.
/4 At some time between June 10 and June 12,
Hostetler discovered a bank deposit missing from
the safe at the Ireland Road restaurant. On June
12, the day she was transferred, someone from
Quality’s security department spoke with her
about the missing money and asked her to submit
to a polygraph examination. Hostetler agreed.
Although her testimony is not entirely clear on
this point, see Hostetler Dep. 74, 75, it appears
that she may have submitted to one examination,
the results of which she never learned. Payton
also submitted to a polygraph, and after he did
so, Hostetler was asked for a second time to do
the same. Again, she agreed. However, when she
arrived for the examination, she was asked to
sign paperwork acknowledging that the inquiry
would cover not only the missing deposit but her
sexual harassment complaint as well. At that
point, she declined to submit to the examination,
indicating that she wished to speak with her
attorney. Hostetler avers that Payton eventually
was determined to have absconded with the money,
was turned over to the police, and was
incarcerated as a result. We can find no
independent evidence in the record confirming her
testimony on that point, however.
/5 Kochan may have participated in this meeting.
Quality asserts that he did, Quality Br. 11, but
the limited excerpts from Hostetler’s deposition
in the record do not make this clear.
/6 As evidence of what Hostetler asked her employer
to do, her remark might have some bearing on our
assessment of the adequacy of Quality’s response
to the alleged harassment. See Garrison v. Burke,
165 F.3d 565, 571 (7th Cir. 1999) (noting that
plaintiff did not express dissatisfaction with
warnings given to harasser). As we discuss below,
however, Hostetler’s contention that Quality’s
response was negligent focuses on the company’s
delay in acting and on its decision to transfer
her, not on its omission to deal with Payton more
firmly.
/7 We noted at the outset that Quality’s subsidiary,
Bravokilo, actually owns the restaurants involved
in this case. Quality does not dispute that it is
the appropriate defendant here, however.
/8 The district court construed Kochan’s affidavit
to admit that Quality transferred Hostetler
partly to resolve her harassment allegations. See
1998 WL 456436, at *6, citing Kochan Aff. para.
18. In fact, Kochan merely states that he was
aware of the personality clash between Ridenour
and Hostetler long before the harassment charge.
Id. Kochan goes on to specifically deny any
connection between the transfer and Hostetler’s
allegations against Payton. Id. para. 19.
/9 Nor is she claiming that the transfer was
retaliatory. Cf. Collins v. Illinois, 830 F.2d
692, 701-06 (7th Cir. 1987). We have highlighted
the evidence tying the transfer to her harassment
complaint simply to explain why the factfinder
could conclude that the transfer was intended to
remediate the harassment complaint. See Steiner
v. Showboat Op. Co., 25 F.3d 1459, 1465 (9th Cir.
1994), cert. denied, 513 U.S. 1082, 115 S. Ct.
733 (1995).
/10 See also EEOC Compliance Manual (CCH) sec.
615.4(a)(9)(iii), para. 3103, at 3210 (2000) (to
determine whether employer took appropriate
corrective action in response to co-worker
harassment, EEOC will consider "[w]hether it
fully remedied the conduct without adversely
affecting the terms or conditions of the charging
party’s employment in some manner (for example,
by requiring the charging party to work less
desirable hours or in a less desirable
location)").