Tristana Hunt v. Wal-Mart Stores, Inc. , 931 F.3d 624 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-3403
TRISTANA HUNT,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 05924 — Charles R. Norgle, Judge.
ARGUED MAY 23, 2019 — DECIDED JULY 26, 2019
Before BAUER, MANION, and BRENNAN, Circuit Judges.
BAUER, Circuit Judge. Tristana Hunt worked the overnight
shift in the electronics department of a Wal-Mart store and
Daniel Watson was her supervisor. After Watson made several
unprofessional remarks toward Hunt over a four-month
period, Hunt filed a complaint with human resources. Wal-
Mart promptly investigated the claims but was unable to
2 No. 18-3403
substantiate them. Hunt then filed a complaint in federal court
alleging Watson sexually harassed her by creating a hostile
work environment in violation of Title VII of the Civil Rights
Act of 1964. At summary judgment, the district court held that
Wal-Mart established the Faragher-Ellerth affirmative defense
to liability because it reasonably prevented and corrected
sexual harassment, and Hunt unreasonably delayed in report-
ing the harassment. We agree and affirm.
I. BACKGROUND
Before Watson and Hunt worked together on the night
shift, Watson worked as a supervisor on the day shift. While
working on the day shift Watson was accused of sexually
harassing an individual he supervised, Toyanna Campbell.
Campbell filed a complaint on October 24, 2012, which
informed human resources that Watson had told Campbell he
liked her several times. After she said she did not like him he
closed the door and window to his office, put his hand on her
arm, and refused to let go of her until she screamed. Watson
was provided with a written “coaching” for the conduct
described in the complaint. “Coaching” is the Wal-Mart
equivalent of being written up and is intended to provide
instruction and assistance when an employee’s performance is
not up to Wal-Mart’s standards.
On November 7, 2012, Campbell filed another complaint
alleging Watson had acted inappropriately. According to the
complaint he asked her what perfume she was wearing,
complimented her on her “musk,” implied that she liked him
when she called him to the front of the store, informed her that
he was single and asked if she was single, told her he was
No. 18-3403 3
looking for a girlfriend, and told her he really liked her. In
response to this incident, Wal-Mart provided Watson with a
second written coaching and moved him to the overnight shift.
Hunt met Watson for the first time during a shift in May
2013. Watson came up to her and asked her why she was
wearing a particular shirt, saying that he could see her breasts,
and then commented that he did not understand how a
woman could have breasts so large despite having a small
body. Hunt was uncomfortable and walked away from the
incident to avoid further comments. About a month later,
Watson walked up behind Hunt while she was bending over,
stood close to her, and made another comment about her
breasts. Hunt told him that his comments were inappropriate
and again walked away. This time Watson followed her and
told her he wanted to shower with her and feel her breasts.
On June 25, 2013, Hunt showed Watson a picture of a fallen
tree on her phone to explain that inclement weather had
caused her to miss the previous workday. Watson took the
phone from her hand and indicated he was looking through it
for naked pictures. Hunt asked him to stop and took her phone
back. Watson replied that he would not excuse her absence and
again asked when he could see her breasts.
In late August Watson made similar offensive comments
towards Hunt and in mid-September, Watson asked to see
Hunt’s breasts several times within a few days. On Septem-
ber 27, 2013, after Hunt refused another advance, Watson gave
her written coaching for not working her scheduled shifts and
cited her June 24 absence as one such absence. Immediately
following this formal discipline, Hunt decided to report
4 No. 18-3403
Watson’s harassment to the store manager, Mark Turner, at the
end of her shift.
Hunt asked Turner for a complaint form when he arrived
for his shift. This was the first time Hunt informed Turner of
any issues between her and Watson. When Turner asked Hunt
if she knew of any witnesses, she told him to ask around about
Watson’s behavior. Turner collected the complaint from Hunt
and provided it to human resources. Later that day, human
resources informed Turner that he needed to complete an
investigation into Hunt’s complaint. Turner opened an
investigation immediately and interviewed Watson eight days
later. Watson denied making any sexual comments towards
Hunt. Turner concluded Hunt’s claims could not be substanti-
ated without corroborating witnesses. Nonetheless, he re-
quired Watson to retake the company’s ethics training course
which included anti-harassment training. Watson completed
the course on November 6, 2013. Hunt reported no incidents of
harassment following the discipline.
Hunt filed a complaint in federal court on June 7, 2016, and
an amended complaint on July 1, 2016. Hunt alleged she was
subjected to a hostile work environment by being sexually
harassed on a daily basis for five months. Wal-Mart moved for
summary judgment arguing that Watson’s actions did not
create a hostile work environment or in the alternative that
Wal-Mart had established an affirmative defense to liability as
a matter of law. The district court admitted it was “unable to
determine whether Plaintiff suffered a hostile work environ-
ment claim,” but granted summary judgment in favor of Wal-
Mart, holding it had proved the affirmative defense outlined
by the Supreme Court in Burlington Indus. v. Ellerth, 524 U.S.
No. 18-3403 5
742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775
(1998). Because we agree, we affirm.
II. DISCUSSION
We review a grant of summary judgment de novo. Parker v.
Four Seasons Hotels, Ltd., 845 F.3d 807, 814 (7th Cir. 2017). The
Court must decide whether the evidence is such that a reason-
able jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A hostile work environment claim requires a plaintiff show:
(1) the work environment was objectively and subjectively
offensive, (2) the harassment complained of was based on
gender, (3) the conduct was either severe or pervasive, and
(4) a basis for employer liability exists. Scruggs v. Garst Seed Co.,
587 F.3d 832, 841 (7th Cir. 2009). The Supreme Court has held
that Title VII does not demand employers be held vicariously
liable for hostile work environments created by their supervi-
sors unless it is accompanied by an adverse employment
action. Faragher v. City of Boca Raton, 524 U.S. 775, 805–06
(1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998). An
employer may escape liability if it can show the hostile work
environment was not accompanied by an adverse employment
action and prove an affirmative defense. Id.
The Faragher-Ellerth defense is one such defense and
requires the employer prove by a preponderance of the
evidence that: (1) it exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (2) the
plaintiff unreasonably failed to take advantage of any preven-
tive or corrective opportunities provided by the employer or to
otherwise avoid harm. Id. at 765.
6 No. 18-3403
A. Adverse Employment Action
As noted above, if Hunt can establish an adverse employ-
ment action was taken against her, she can prevent Wal-Mart
from claiming the Faragher-Ellerth defense. Hunt argues that a
reasonable jury could conclude she was constructively dis-
charged. Constructive discharge requires an employee prove
her working conditions were so intolerable that she was forced
into involuntary resignation. Roby v. CWI, Inc., 579 F.3d 779,
785 (7th Cir. 2009). To establish such a claim a plaintiff must
show working conditions “even more egregious than the high
standard for hostile work environment claims.” Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 790 (7th Cir. 2007).
No evidence indicates that Hunt was forced into involun-
tary resignation due to Watson’s conduct. Quite the contrary,
Hunt continued to work the same shift at the same Wal-Mart
store for several years without alleging any additional inci-
dents of sexual harassment. Not until more than three years
later, when Hunt failed to return to work after a period of
medical leave, was she let go. This failure to present evidence
that her employment ceased due to an intolerable working
environment precludes a finding of constructive discharge as
a matter of law. See Roby, 579 F.3d at 786 (finding no construc-
tive discharge when plaintiff “essentially just quit coming to
work while [her employer] was attempting to resolve the
issue”).
Even if we were able to construe Hunt’s delayed decision
to stop showing up to work as a “resignation,” we must
determine whether it was “involuntary” by assessing whether
the conditions were intolerable. The cases where we have
No. 18-3403 7
found constructive discharge are significantly more egregious
than the facts at hand. Here, Hunt avers Watson made sexually
suggestive comments towards her on a number of occasions;
the only evidence that these incidents occurred are found in
Hunt’s deposition. Adusumilli v. City of Chicago, 164 F.3d 353,
361 (7th Cir. 1998) (noting that “an adverse party may not rest
upon the mere allegations … but … must set forth specific facts
showing there is a genuine issue for trial.”).
The conduct in Brooms v. Regal Tube Co., 881 F.2d 412, 417
(7th Cir. 1989) is an example. Brooms was employed by Regal
Tube Company for sixteen months and during her time with
the company endured numerous racist and sexually suggestive
comments from a supervisor. The supervisor showed Brooms
a pornographic photograph depicting “an interracial act of
sodomy and told her that the photograph showed the ‘talent’
of a black woman.” Id. The supervisor also showed her a racist
pornographic picture involving bestiality and threatened that
the photograph depicted was the fate in store for Brooms. Id.
He then grabbed her by the arm and threatened to kill her if
she moved. Id.
Here, the alleged conduct, while unacceptable, does not
amount to constructive discharge. While comments like these
have no place in the workplace, our precedent makes clear that
a plaintiff must provide evidence of an environment of
significantly greater severity before an actionable claim of
constructive discharge materializes. Additionally, there are
numerous cases in which employees were subjected to similar
behavior that we held the conduct was not actionable. See
Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 528 (7th Cir. 1993)
(affirming summary judgment for defendant where plaintiff
8 No. 18-3403
alleged her supervisor rubbed her upper leg several times,
kissed her without consent, and lurched at her as if to grab her
after hiding behind some bushes); Roby, 579 F.3d at 785
(finding no constructive discharge when a co-worker made
sexually suggestive remarks, pressed his body against plain-
tiff’s backside, put his arm around her, patted her on the
buttocks, and pushed plaintiff by the hips); Koelsch v. Beltone
Elecs. Corp., 46 F.3d 705, 708 (7th Cir. 1995) (affirming summary
judgment for defendant where supervisor removed his shoe
and suggestively rubbed his foot against plaintiff’s legs under
the table, grabbed plaintiff’s buttocks, told plaintiff he found
her attractive and that he was unable to control himself around
her, and asked plaintiff to go out with him); Gleason v. Mesirow
Fin., 118 F.3d 1134 (7th Cir. 1997) (no hostile work environment
claim where supervisor referred to female customers as
“bitchy” and “dumb,” spoke about the size of female em-
ployee’s breasts, told a female employee that he liked her in
tighter skirts, told plaintiff he dreamt about holding hands
with her); Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 902 (7th Cir.
2004) (no actionable harassment where harasser referenced
plaintiff’s “tits,” commented that plaintiff was attractive and
had nice legs, used profanity, made comments about his penis
size, and commented that a female coworker needed to have
sex); Baskerville v. Culligan Int’l Co., 50 F.3d 428, 431 (7th Cir.
1995) (no sexual harassment where supervisor commented on
plaintiff’s looks, made grunting noises at her, indicated he was
lonely, and made gestures intending to suggest masturbation).
The case at hand is similar to the above cases in severity. Hunt
alleges that Watson made several sexually suggestive com-
ments that were inappropriate. But Hunt has not alleged she
No. 18-3403 9
was ever touched by Watson, that she was ever threatened by
Watson, nor that she was concerned for her safety at any point.
As such, we agree with the district court’s holding that
constructive discharge was not established.
B. Reasonable Care
The first element of the Faragher-Ellerth defense requires a
defendant to show that it took both preventative and corrective
measures to address sexual harassment. Gentry v. Exp. Packagin
Co., 238 F.3d 842, 846 (7th Cir. 2001). Employers must “take all
steps necessary to prevent sexual harassment from occurring.”
Faragher, 524 U.S. at 806 (quoting 29 C.F.R. § 1604.11(f) (1997)).
“Prevention can involve proactive steps such as constructing
a reporting system for instances of sexual harassment, training
employees about sexual harassment risks and what can be
done to ameliorate them … and taking reasonable steps to
prevent harassment once informed of a reasonable probability
that it will occur.” Erickson v. Wisconsin Dep’t of Corrections, 469
F.3d 600, 606 (7th Cir. 2006).
Hunt’s primary argument is that Watson’s harassment of
Campbell demonstrates that the measures taken by Wal-Mart
were deficient. When raised properly, this argument has force.
The prior harassment demonstrates that Wal-Mart was on
notice that harassment was likely to occur. Wal-Mart, in fact,
moved Watson to the night shift because he had been accused
of harassing Campbell on the day shift. On the night shift
Watson was the highest ranking employee and often alone
with employees. In Cerros, we noted that prevention should
include close monitoring when an employer has knowledge of
prior harassment: “at a minimum [the employer] could have
10 No. 18-3403
had a manager check on the area in question on a regular basis
to ensure the problem did not recur.” Cerros v. Steel Techs., 398
F.3d, 944, 954 (7th Cir. 2005) (quoting McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1120 (9th Cir. 2004)). Indeed, EEOC
guidance states, “If … the employer has an adequate policy
and complaint procedure and properly responded to an
employee’s complaint of harassment, but management ignored
previous complaints by other employees by the same harasser,
then the employer has not exercised reasonable care in pre-
venting harassment.” Equal Employment Opportunity
Commission, Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, available at
www.eeoc.gov/policy/docs/harassment.html. But Hunt failed to
make these arguments in the district court and “[f]ailing to
bring an argument to the district court means that you waive
that argument on appeal.” Wheeler v. Hronopoulos, 891 F.3d
1072, 1073 (7th Cir. 2018).
Based on the arguments properly presented, no reasonable
jury could find that Wal-Mart acted unreasonably. Wal-Mart
had a comprehensive policy that explicitly prohibited sexual
harassment. The policy states that Wal-Mart “will not tolerate
any form of discrimination or harassment in any aspect of our
business.” Included in the list of prohibited forms of harass-
ment is “repeated unwanted sexual flirtations, advances, or
propositions.”Additionally, the options for reporting retalia-
tion were robust:
If you experience conduct that may violate this
policy or if you observe or become aware of any
conduct that may violate this policy by being
discriminatory, harassing or retaliatory, you
No. 18-3403 11
should immediately report the violation to any
salaried member of management or confiden-
tially and/or anonymously to the Global Ethics
Office []. If you believe a salaried member of
management may be violating this policy, you
do not have to report the violation to that per-
son. You may report the possible violation to
another salaried member of management or call
the Global Ethics Office.
An employer’s adoption of an effective anti-harassment policy
is an important factor in determining whether it exercised
reasonable care to prevent sexual harassment. Smith v. First
Union Nat. Bank, 202 F.3d 234, 244 (7th Cir. 2000). Here, Wal-
Mart had such a policy.
Additionally, investigation into the incident was prompt
and thorough. After Turner received the complaint from Hunt,
he provided a copy of the complaint form to human resources.
The same day, human resources instructed him to complete an
investigation into the matter. This Court has often said, “a
prompt investigation is the hallmark of a reasonable corrective
action.” Porter v. Erie Foods Intern., Inc., 576 F.3d 629, 637 (7th
Cir. 2009) (quoting Lapka v. Chertoff, 517 F.3d 974, 985 (7th Cir.
2008)). During the investigation, Turner asserts he met with
Hunt and Watson on two separate occasions, first to gather
information and then to discuss the findings and the course of
action as recommended by human resources. Because Hunt
did not provide Turner with any witnesses, his investigation
was limited to interviewing the involved parties. The investi-
gation was completed quickly and Turner determined he was
unable to substantiate the claims. Nevertheless, Turner
12 No. 18-3403
reiterated to Watson the importance of a harassment-free work
environment and required him to retake the company’s ethics
course which included anti-harassment training. Furthermore,
Hunt did not allege any instances of sexual harassment
occurred after the investigation was complete. “There is no
question that a stoppage of harassment shows effectiveness.”
Porter v. Erie Foods Intern., Inc., 576 F.3d 629, 637 (7th Cir. 2009).
In sum, we find that Wal-Mart did what a reasonable
employer should. It promulgated a comprehensive sexual
harassment policy, trained its employees, maintained an
effective reporting system, expeditiously investigated Hunt’s
complaint, and communicated its zero-tolerance policy and
retrained Watson even though the investigation failed to
substantiate the allegations against him.
C. Unreasonable Delay
The second element of the Faragher-Ellerth defense requires
the defendant to show plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities the
employer provided. This is a functional test that asks “whether
the employee adequately alerted her employer to the harass-
ment, thereby satisfying her obligation to avoid the harm, not
whether she followed the letter of the reporting procedures set
out in the employer’s harassment policy.” Cerros, 398 F.3d at
952. But demonstrating a plaintiff failed to use the provided
reporting procedures “will normally suffice to satisfy the
employer’s burden under the second element of the defense.”
Id. (citing Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807–08).
Here, Hunt failed to take advantage of any reporting
mechanisms for four months and thereby prevented Wal-Mart
No. 18-3403 13
from taking corrective measures. Hunt argues that she did not
report Watson’s behavior because she was unaware of the
anonymous hotline and believed that she had to report to
Turner. She further asserts that she feared retaliation for
reporting. But “an employee’s subjective fears of confrontation,
unpleasantness or retaliation do not alleviate the employee’s
duty to alert the employer to the allegedly hostile environ-
ment.” Porter v. Erie Foods Intern., 576 F.3d 629, 638 (7th Cir.
2009) (quoting Hill v. Am. Gen. Fin. Inc., 218 F.3d 639, 644 (7th
Cir. 2000)). The record indicates that the anonymous phone
line for reporting sexual harassment was included in
Wal-Mart’s sexual harassment policy and the policy also
indicates that Hunt could have reported the incident to any
salaried employee she felt comfortable with. While we do not
intend to minimize the difficulty involved in reporting these
issues, employees have a duty to utilize reporting mechanisms
provided by their employer, or otherwise alert their employer
of the problem, when they can do so without “undue risk or
expense.” Faragher, 524 U.S. at 806. Not only did Hunt fail to
use any of these reporting mechanisms, she otherwise
completely failed to alert Wal-Mart of the problem for months.
McPherson v. City of Waukegan, 379 F.3d 430, 435 (7th Cir. 2004)
(“An employer cannot be considered to have knowledge of
sexual harassment unless the employee makes a concerted
effort to inform the employer that a problem exists”). Because
Hunt could have utilized the reporting systems implemented
by Wal-Mart without undue risk or expense, but failed to for
several months, we find Wal-Mart has carried its burden of
showing Hunt’s delay was unreasonable. See Jackson v. Cty. of
Racine, 474 F.3d 493, 502 (7th Cir. 2007) (holding it was
14 No. 18-3403
unreasonable for an employee to wait four months before
reporting sexual harassment to her employer); Roby, 579 F.3d
at 786 (holding that a five month delay under similar
circumstances was unreasonable).
III. CONCLUSION
With the various contentions of the plaintiff considered, the
judgment of the district court is hereby AFFIRMED.