Gawley, Janice M. v. Indiana University ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1819
JANICE M. GAWLEY,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 96 C 466--Larry J. McKinney, Chief Judge.
ARGUED NOVEMBER 30, 2000--DECIDED December 31, 2001
Before FLAUM, Chief Judge, and EASTERBROOK
and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Janice Gawley
sued her employer for sexual harassment,
hostile work environment, retaliation,
and the Indiana tort of spoliation of
evidence. The district court first denied
summary judgment, then changed course
after the Supreme Court issued two key
decisions, and granted summary judgment
in favor of the employer. We affirm.
A.
We credit Gawley’s version of the facts
and draw all reasonable inferences in her
favor because she is the party opposing
summary judgment. Hostetler v. Quality
Dining Inc., 218 F.3d 798, 802 (7th Cir.
2000). Gawley worked as a police officer
for the Indiana University Police Depart
ment from 1983 until 1996. Her immediate
supervisors were Sergeant McClain and
Lieutenant Shutte, who in turn reported
to Captain Wilken. Captain Wilken
reported to Chief Norris. In the absence
of her regular shift commanders, other
persons ranking above her in the police
department’s paramilitary structure
directed her work assignments. Jerry
Minger was a lieutenant in the
department’s Uniform Division, and his
main responsibilities involved uniforms
and equipment. As the department
quartermaster, he felt responsible for
pointing out elements of behavior or
appearance that required correction. Some
department records referred to Minger as
a department supervisor, and his job
description specified that he had command
responsibilities over subordinate
personnel in emergency situations. At
times, Minger filled in as Gawley’s shift
commander and initiated a disciplinary
procedure against her on one occasion. He
also supervised Gawley when she performed
public relations duties. According to
other department personnel, Minger had
some supervisory authority over all
officers who ranked below him in the
department’s paramilitary organization.
He also had some disciplinary authority
over lower ranking officers such as
Gawley. That authority was limited in
certain areas. For example, while Minger
had authority over uniforms, weapons and
equipment, he did not have final
authority to hire or fire employees. He
was, however, authorized to initiate
disciplinary proceedings against junior
officers relating to any aspect of the
officer’s conduct.
Apparently in his role as quartermaster,
Minger began commenting to Gawley in
November 1994 about the fit of her pants.
In particular, he remarked in an
offensive manner on a number of occasions
that Gawley’s pants were too tight, and
that she was overweight./1 He made these
comments in a demeaning manner in front
of other department personnel. At times,
he made up to three comments a day. For
example, in front of other personnel,
Minger told Gawley she was "getting
bigger than a barge," and in front of
visiting government personnel, he yelled
across a street "Hey, Gawley, pants are
too tight" or "Pants seem awfully tight"
while laughing. When fitting Gawley for a
bullet proof vest, he remarked about her
breast size, saying "a D cup, that’s big
wow." He continued to remark about her
breast size at two other fitting sessions
and finally groped her breast while
adjusting a bullet proof vest on her. Two
other officers witnessed the groping
incident, and one commented that if
Minger had done this to her, she would
have punched him. Gawley estimated that
she asked Minger to stop making the
offensive comments at least ten times. On
two occasions when she asked Minger to
stop, other officers were present,
including a sergeant and a fellow officer
who later became a sergeant. Gawley also
produced evidence that the department had
a history of sexual harassment of its
female employees dating back to the early
1980s. Other female employees related a
number of incidents over the years
involving Minger and other male employees
who made offensive gestures and comments
to female employees.
On June 14, 1995, Gawley lodged her
first formal complaint about Minger
through internal department procedures.
She did not mention Minger’s breast
groping in that complaint because she was
embarrassed by the incident, and believed
she would have an opportunity to bring it
to light during the investigative
process. Captains Wilken and Poliskie
investigated Gawley’s complaint. They
interviewed Minger several times, but did
not question Gawley at that time. They
did not contact Deborah Delay, an
employee who wrote a memorandum
corroborating Gawley’s version of events.
In the meantime, on June 22, Gawley went
to the university’s Office of Women’s
Affairs ("OWA") to discuss her complaint.
She told the intake counselor about the
groping incident, and the counselor led
her to believe there was nothing OWA
could do about the incident. Gawley next
approached the Office of Affirmative
Action ("OAA"), where she did not mention
the groping incident to investigator
Tammy Chappell because she was angry and
believed she would get the same response
as was given by the OWA. The next day,
Gawley met with Wilken, Poliskie
andLieutenant Timothy Lewis.
Wilken spoke with Chappell that day as
well, and Wilken then decided to issue a
counseling memorandum to Minger based on
the comments about Gawley’s pants, weight
and breast size. The memorandum did not
address the groping incident, which
Gawley had not yet mentioned to
Wilken./2 According to Gawley, Wilken
had accepted at face value Minger’s claim
that he had not intended to offend Gawley
when he made these various comments, in
spite of the fact that the university’s
sexual harassment policy provided that a
claim that the harassment was
unintentional is disallowed as a defense.
Minger’s harassment of Gawley ceased as
of June 1995, after he received the
counseling memorandum.
Although the counseling memorandum
issued and the harassment stopped, the
investigation continued through the other
procedures that Gawley initiated.
Chappell drafted a report as a result of
OAA’s investigation, and on August 30,
1995, faxed the draft to Chief Norris,
stating that she did not anticipate any
major changes to the draft. Chief Norris
reacted with anger upon reviewing the
draft. He did not attend a meeting
scheduled to discuss the draft, and
Chappell later apologized to Norris for
any misunderstandings about the report.
Although Gawley never saw any reports (or
drafts) issued by OAA, Norris shared the
report with Minger and other personnel.
Ultimately, the report was changed to
remove many of the conclusions Chappell
reached that were critical of Minger and
the department. The recommendations in
the watered-down report were never
implemented. The university never issued
a final report, and Norris refused to
meet with Gawley during this time period.
Gawley believed that some of the actions
taken during the investigation were
retaliation for her complaints of sexual
harassment. For example, Norris released
a copy of the OAA report to Lieutenant
Butler, a department officer not in
Gawley’s chain of command. Butler then
wrote a memo highly critical of the
report. Gawley also complained that
Schutte ordered her to lie on a case
report, that her case reports were
subject to greater scrutiny than other
officers’ reports, that she was subjected
to silent treatment by department
administrators, and that the department’s
open-door policy was closed to her.
Sergeant McClain told her she would be
demoted if she did not renew her "IDACS"
certification, even though three other
officers in the same grade as Gawley did
not renew their certification and none
were threatened with demotion. McClain
also ordered her to learn the new "CADS"
system, telling her she would be tested
on it, even though all the other officers
in her shift were told the training would
be voluntary./3 Finally, she was the
last officer to receive a bullet proof
vest, for which Minger had procurement
responsibility. As a result of all of
these events, Gawley resigned on January
3, 1996, characterizing her departure as
constructive discharge.
She had filed her first charge of
discrimination with the EEOC on December
5, 1995. In that charge, she alleged that
Minger subjected her to pervasive sexual
harassment by commenting inappropriately
about the fit of her pants, by commenting
inappropriately about her breast size,
and by inappropriately touching her
breast under the guise of adjusting her
bullet proof vest during a fitting
session. She alleged that the internal
procedures for reporting this harassment
had proved ineffectual, and that Minger
had not been appropriately disciplined.
She filed a second charge on December 19,
1995, which she concedes does not allege
retaliation. On February 15, 1996, she
filed an amendment to her first charge.
That amendment alleged that since
December 5, 1995, and unknown to her at
that time, Chief Norris waged a campaign
of retaliation against her for having
filed complaints of sexual harassment
against Minger. She pointed to Norris’
disclosure of the OAA report to Butler as
evidence of this retaliation. She did not
specifically allege any other incidents
as evidence of retaliation. She explains
that she did not allege retaliation in
her first two EEOC charges because it was
not until she learned of the disclosure
to Butler that she realized the problems
she had faced in her final days at the
university were the result of retaliation
for charging Minger with sexual
harassment. After filing her formal
complaint, Gawley became aware that OAA
investigator Chappell had destroyed a
number of documents, drafts and notes on
the instructions of the director of the
OAA, who told Chappell to use her
judgment in deciding what to keep and
what to discard, a comment that Chappell
took as a directive to destroy drafts.
The university moved for summary
judgment in the district court, and the
court initially denied the motion. As the
parties prepared for trial, the
university successfully moved to exclude
evidence from Gawley’s expert, a
psychologist who planned to testify about
patterns of behavior and organizational
structure. In the meantime, as we will
discuss below, the law of sexual
harassment as it relates to supervisors
was clarified by the Supreme Court in two
major decisions, and the university
decided to file new motions for summary
judgment, first on the sexual harassment
claim, and then on Gawley’s claims for
constructive discharge, retaliation and
the Indiana tort of spoliation of
evidence./4 This time, the court granted
summary judgment in favor of the
university on all of Gawley’s claims.
Gawley appeals.
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. Hostetler, 218 F.3d
at 806. We review the district court’s
summary judgment ruling de novo,
construing the record in the light most
favorable to the non-movant, Gawley. Id.
Gawley contends that the district court
erred by: (1) finding that Minger was not
Gawley’s supervisor as a matter of law;
(2) ruling that Gawley was not the victim
of a hostile environment; (3) holding
that evidence of harassment of other
women and retaliation against other women
should be excluded; (4) finding that
Gawley failed to preserve her retaliation
claim by not bringing it in her EEOC
charge; (5) holding that Gawley could not
establish a prima facie case of
retaliation; (6) ruling that Gawley’s
constructive discharge claim failed as a
matter of law; (7) excluding the
testimony of Gawley’s proposed expert;
and (8) finding that Gawley’s claim for
spoliation of evidence failed because she
could not prove damages.
A.
We consider the supervisor issue first.
Gawley maintains that even though Minger
was not in her direct chain of command,
he was her superior officer in the
department’s paramilitary hierarchy. As
such, she was obliged to obey his orders
in the field. At certain times such as
special visits to the campus, and in
certain areas such as uniforms and
equipment, he held supervisory authority
over her. She concedes he did not have
the authority to hire or fire employees,
but maintains that he was authorized to
initiate disciplinary proceedings against
her, and apparently did so on one
occasion unrelated to any of these
events. The university maintains that
Minger was not Gawley’s supervisor as a
matter of law. He did not have
immediately or successively higher
authority over her because he could not
hire or fire her, and did not have
authority of substantial magnitude over
her.
The parties are engaged in this battle
over the meaning of "supervisor" because
of the Supreme Court’s holdings in
Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998), and Faragher v. City
of Boca Raton, 524 U.S. 775 (1998). In
those cases, the Court defined the
criteria for an employer’s vicarious
liability for sexual harassment committed
by employees. Citing the Restatement
(Second) of Agency, the Court noted that
an employer is typically not liable for
the torts of its employees acting outside
the scope of their employment unless (a)
the employer intended the conduct or the
consequences; (b) the employer was
negligent or reckless; (c) the conduct
violated a non-delegable duty of the
employer; or (d) the employee purported
to act or speak on behalf of the employer
and there was reliance upon apparent
authority, or the employee was aided in
accomplishing the tort by the existence
of the agency relationship. Ellerth, 524
U.S. at 758, citing Restatement 2nd of
Agency sec. 219(2). As in the instant
case, the Court was not faced with
intentional conduct by the employer or a
non-delegable duty, and so subsections
(a) and (c) of Section 219, paraphrased
above, were found inapplicable.
Subsection (b) imposes liability on the
employer who is negligent. Gawley seeks
to impose the more stringent standard of
vicarious liability detailed in
subsection (d), but she also asks that if
we find Minger to be a mere co-employee,
we also find that she presents enough
evidence to survive the university’s
motion for summary judgment under that
standard as well. We will consider
subsection (d) first.
In Ellerth, the Supreme Court divided
subsection (d) into two parts. The first,
dealing with apparent authority, was held
inapplicable because the plaintiff was
accusing her putative supervisor of the
misuse of actual power. Apparent
authority comes into play only when the
offending employee creates a false
impression of having the power to act on
behalf of the employer. As in Ellerth,
Gawley makes no such claim here and so we
will not consider that provision further.
The Court then considered the "aided in
the agency relation" standard, which is
the standard at issue in the instant
case. The Court found that most workplace
tort-feasors are aided in accomplishing
their tortious conduct by the existence
of the agency relationship. 524 U.S. at
760. Indeed, "[p]roximity and regular
contact may afford a captive pool of
potential victims." Id. However, this
broad interpretation of the provision
would subject employers to vicarious
liability not only for supervisor
harassment but for co-worker harassment
as well. The Court found that the "aided
in the agency relation" language required
something more than the employment
relationship itself. Id. The Court found
that when a supervisor takes a tangible
employment action against a subordinate,
the standard will be met because the
supervisor is clearly aided by the agency
relationship in the commission of the
harassment. 524 U.S. at 760. "A tangible
employment action constitutes a
significant change in employment status,
such as hiring, firing, failing to
promote, reassignment with significantly
different responsibilities, or a decision
causing a significant change in
benefits." 524 U.S. at 761. Gawley does
not claim that she suffered a tangible
employment action, so we must consider
the other circumstances under which the
Court held that an employer might be
vicariously liable./5
The court noted that when the harassment
does not culminate in a tangible
employment action, whether the agency
relationship aids in the supervisor’s
harassment is less obvious. 524 U.S. at
763. In one sense, the Court noted, a
supervisor is always aided by the agency
relationship because the supervisor’s
power and authority "invests his or her
harassing conduct with a particular
threatening character." Id. But there are
also some acts a supervisor might commit
that are identical to conduct in which a
co-employee might engage, and the
supervisor’s status would make little
difference. The Court declined to "render
a definitive explanation of [its]
understanding of the standard in an area
where other important considerations must
affect [the Court’s] judgment" in this
developing area of agency law. 524 U.S.
at 763. The Court instead adopted
the following holding:
An employer is subject to vicarious
liability to a victimized employee for an
actionable hostile environment created by
a supervisor with immediate (or
successively higher) authority over the
employee. When no tangible employment
action is taken, a defending employer may
raise an affirmative defense to liability
or damages, subject to proof by a
preponderance of the evidence, see Fed.
Rule Civ. Proc. 8(c). The defense
comprises two necessary elements: (a)
that the employer exercised reasonable
care to prevent and correct promptly any
sexually harassing behavior, and (b) that
the plaintiff employee unreasonably
failed to take advantage of any
preventive or corrective opportunities
provided by the employer or to avoid harm
otherwise. . . . No affirmative defense
is available, however, when the
supervisor’s harassment culminates in a
tangible employment action, such as
discharge, demotion, or undesirable
reassignment.
Ellerth, 524 U.S. at 765.
The Court further explained in Faragher
that a victim of harassment "can walk
away or tell the offender where to go"
when the harasser is a fellow employee,
but few are willing to accept the risks
of blowing the whistle on a supervisor,
who has the power to hire and fire and to
set work schedules and pay rates. 524
U.S. at 803. Moreover, an employer has
greater opportunities to guard against
misconduct by supervisors than by common
workers. In particular, employers have
greater opportunity and incentive to
screen, train and monitor supervisors.
524 U.S. at 803. The Court reiterated in
Faragher that the employer could defend
against a charge of harassment by a
supervisor by demonstrating that the
employer had exercised reasonable care to
avoid harassment and to eliminate it when
it might occur, and by demonstrating that
the complaining employee failed to take
advantage of the employer’s safeguards or
otherwise avoid harm that could have been
prevented. 524 U.S. at 805-07.
With those standards in mind, we examine
Gawley’s claim against the university. It
is undisputed that, in the normal course
of business, Minger was not Gawley’s
immediate or successively higher
supervisor. He was, however, her
commanding officer on at least two
occasions when he chose to harass her
with inappropriate comments about the fit
of her pants, during special visits to
the campus by Janet Reno and Warren
Christopher. He was also a supervisor in
charge of uniforms and equipment, and in
that capacity, he had special access to
Gawley during the fitting of her bullet
proof vest, and used that access to grope
her breast. He did not have the power to
hire or fire her, but did have the
ability to initiate disciplinary
proceedings against her. He also had the
ability to delay her receipt of a
critical piece of equipment, namely her
bullet proof vest. The university makes
much of the fact that the wearing of a
bullet proof vest was voluntary and
officers had only recently negotiated
through their union to require the
university to provide vests to officers
who requested them. The voluntary nature
of wearing the vests is irrelevant here,
however, because Gawley had requested a
vest. Moreover, Minger’s ability to delay
distribution of equipment to a
subordinate employee is relevant to the
analysis of whether his position as a
supervisor aided him in the commission of
the harassment. If, as in Ellerth and
Faragher, he was entrusted with powers
that rendered subordinates less likely to
blow the whistle on him, then he was
aided by the agency relationship in
harassing subordinate employees. See also
Parkins v. Civil Constructors of
Illinois, Inc., 163 F.3d 1027, 1034 (7th
Cir. 1998) (the essence of supervisory
status is the authority to affect the
terms and conditions of the victim’s
employment). Gawley also points out that
the department operated in a paramilitary
hierarchy, which meant that subordinate
officers were obliged to obey the
commands of all superior officers, not
just those who were in their direct line
of supervision. On the other hand, Gawley
had access to department procedures to
complain about Minger’s conduct, and was
able to complain to her direct superiors
without having to proceed through
Minger’s chain of command at all. On sum
mary judgment, we are reluctant under
these unusual circumstances to find that
Minger was not, as a matter of law, aided
in the commission of the harassment by
his supervisory position. Cf. Mikels v.
City of Durham, N.C., 183 F.3d 323, 334
(4th Cir. 1999) (police officer could not
show harasser was aided by the agency
relationship where harasser was superior
in rank only, he had no authority to take
tangible employment actions against the
officer, only occasionally had authority
to direct the officer’s operational
conduct while on duty, and the officer
was not isolated from the continuing
protective power of higher management in
the department). We need not definitively
decide this question, however, because
even if we assume Minger was a supervisor
as defined in Ellerth and Faragher, the
university was entitled to raise an
affirmative defense.
We consider the issue of the
university’s affirmative defense because
Minger’s harassment did not involve
atangible employment action as that term
was defined by the Supreme Court in
Ellerth and Faragher. He did not fire
Gawley, nor fail to promote her, nor
reassign her to a post with significantly
different responsibilities. He made
harassing comments about her pants, her
weight and her breasts, and he touched
her breast during a fitting. The
university, therefore, may defend against
Gawley’s charges by demonstrating that
(1) it exercised reasonable care to
prevent and correct promptly any sexually
harassing behavior, and (2) Gawley
unreasonably failed to take advantage of
any preventive or corrective
opportunities provided by the university
or to avoid harm otherwise. Faragher, 524
U.S. at 807. Gawley concedes the
university had a system in place for
employees to report sexual harassment,
and also concedes that as soon as she
used the system, the university took
action and the harassment stopped.
Although she contends that the university
conducted an inadequate investigation of
the incidents, and that the warning
issued to Minger was lacking, she agrees
that the investigation and warning
resulted in a cessation of Minger’s
offensive conduct. In the face of this
evidence that the university had a
procedure in place to handle harassment,
Gawley has no evidence that the
university failed to exercise reasonable
care in preventing and correcting
theharassing behavior.
We turn to the second part of the
employer’s defense, whether Gawley
unreasonably failed to take advantage of
any preventive or corrective
opportunities provided by the university
or to avoid harm otherwise. In Faragher,
the Supreme Court explained the rationale
for this second prong of the employer’s
defense:
The requirement to show that the employee
has failed in a coordinate duty to avoid
or mitigate harm reflects an equally
obvious policy imported from the general
theory of damages, that a victim has a
duty "to use such means as are reasonable
under the circumstances to avoid or
minimize the damages" that result from
violations of the statute. . . . An
employer may, for example, provide a
proven, effective mechanism for reporting
and resolving complaints of sexual
harassment, available to the employee
without undue risk or expense. If the
plaintiff unreasonably failed to avail
herself of the employer’s preventive or
remedial apparatus, she should not
recover damages that could have been
avoided if she had done so. If the victim
could have avoided harm, no liability
should be found against the employer who
had taken reasonable care, and if damages
could reasonably have been mitigated no
award against a liable employer should
reward a plaintiff for what her own
efforts could have avoided.
Faragher, 524 U.S. at 806-07 (internal
citations omitted). The purpose of this
requirement is tied to Title VII’s
primary objective, which is not meant to
provide redress but rather to avoid harm.
Id., 524 U.S. at 805-06./6 As an
incentive to employers who implement
reasonable procedures designed to prevent
harassment of employees, there will be no
liability if employees fail to take
advantage of the procedures. Id. On this
second prong, the evidence is also
undisputed. Minger harassed Gawley for a
period of approximately seven months. At
times, he made up to three inappropriate
comments to her each day. During this
time, she told Minger at least ten times
to stop harassing her. Even though her
informal approach was not working, she
waited seven months before availing
herself of the formal complaint
procedures available through the
university. As soon as she used the
formal procedures, which did not require
her to complain to the harasser but
provided an alternate channel for her
complaint, the university took action and
the harassment stopped. Gawley’s neglect
of the university’s formal procedures
during seven months of escalating
harassment, in combination with the
insufficiency of her repeated informal
efforts to stop Minger constitute an
unreasonable failure to take advantage of
the university’s corrective procedures.
Given Gawley’s concessions, and using the
standard’s set out in Ellerth and
Faragher, the district court was
therefore correct to grant summary
judgment in favor of the university on
this claim./7
B.
We turn then to Gawley’s claims of
retaliation. She filed two EEOC charges,
one on December 5 and the other on
December 19, 1995. Initially, she did not
claim retaliation in either charge. On
February 15, 1996, after she left her
employment at the university, she amended
the first charge to include a claim of
retaliation. Specifically, she alleged
that since December 5, 1995, and unknown
to her at that time, Chief Norris waged a
campaign of retaliation against her for
having filed complaints of sexual harass
ment against Minger. She pointed to
Norris’ disclosure of the OAA report to
Butler as evidence of this retaliation.
She did not allege any other incidents as
evidence of retaliation at that time. As
we noted above, she explains that she did
not allege retaliation in her first two
EEOC charges because it was not until she
learned of the disclosure to Butler that
she realized the problems she had faced
in her final days at the university were
the result of retaliation for charging
Minger with sexual harassment. In
hercomplaint, Gawley alleged that after
she reported Minger’s harassment to the
OWA and the OAA, Norris treated her
complaints in a frivolous and
disrespectful manner, and the university
failed to take corrective action.
According to Gawley, this retaliation
caused her constructive discharge.
On appeal, Gawley concedes that even her
amended EEOC charge did not allege she
was ordered to lie on a case report, her
case reports were subjected to greater
scrutiny, she was threatened with
demotion if she did not renew her IDACS
certification, she was forced to complete
CAD training, she was ostracized by the
rest of the department, and she was the
last officer to receive her bullet proof
vest. She maintains that her charge need
not be so specific, that her claims are
preserved so long as the claims in her
charge are alike or reasonably related to
the claims in her later lawsuit. Because
she now believes Chief Norris was the
driving force behind all of these
allegedly retaliatory acts, she contends
her claims should stand. The university
counters with our opinion in McKenzie v.
Illinois Dept. of Transp., 92 F.3d 473
(1996), asserting that Gawley is now
confined to the four corners of her EEOC
charge, which claimed only that the
university mishandled her harassment
claim.
We noted in McKenzie that, generally, a
Title VII plaintiff may bring only those
claims that were included in her original
EEOC charge, or that are like or
reasonably related to the allegations of
the charge or growing out of the charge.
92 F.3d at 481 (citing Cheek v. Western &
Southern Life Ins. Co., 31 F.3d 497, 501
(7th Cir. 1994) and Jenkins v. Blue Cross
Mut. Hosp. Ins., 538 F.2d 164, 167 (7th
Cir.), cert. denied, 429 U.S. 986
(1976)). We explained that to meet this
standard, the EEOC charge and the
complaint must, at a minimum, describe
the same conduct and implicate the same
individuals. McKenzie, 92 F.3d at 481.
The purpose of this requirement is to
afford the EEOC and the employer an
opportunity to settle the dispute through
conference, conciliation and persuasion,
and also to give the employer some notice
of the conduct of which the employee is
aggrieved./8
Gawley’s late claim that Chief Norris is
somehow responsible for all of these acts
committed by other members of the
department fails for two reasons. First,
she has produced no evidence that Norris
was involved in any of these acts. Smart
v. Ball State University, 89 F.3d 437,
440 (7th Cir. 1996) (in making out prima
facie case of retaliation, employee must
show, inter alia, a causal connection be
tween the adverse employment action and
her participation in the protected
activity). Second, in her own statement
of facts, she attributes the order to lie
on the case report to Lt. Schutte, she
fails to identify who subjected her case
reports to greater scrutiny or who would
not speak to her, she attributes the
delay in receiving the bullet proof vest
to Minger, and she notes that Sergeant
McClain is the person who threatened her
with demotion if she did not renew her
IDACS certification and if she did not
complete CAD training. Thus, her
allegations involve different persons and
different conduct from that asserted in
her EEOC charge.
Under McKenizie, the only claim of
retaliation that may stand is her claim
that Norris treated her complaints of
sexual harassment in a frivolous and
disrespectful manner. In particular, he
distributed the report to Lt. Butler,
Minger and others, and he strongly
criticized the report. In order to state
a claim for retaliation, however, Gawley
must show more than this. See Ribando v.
United Airlines, Inc., 200 F.3d 507, 510-
11 (7th Cir. 1999). In particular, Gawley
must show she has suffered some
materially adverse action. Id.
"Materially adverse" means more than a
mere inconvenience or alteration of job
responsibilities. Examples of conduct
meeting the "materially adverse" standard
include termination of employment,
demotion, a decrease in wages, a less
distinguished title, or a material loss
of benefits. Id. This list is not
exhaustive and we have acknowledged that
the materially adverse action may be
unique to the situation. Ribando, 200
F.3d at 511; Aviles, 183 F.3d at 606 (a
deliberately false report to police that
an employee was armed and lying in wait
outside the plant could be construed as
materially adverse retaliatory action
intended to discourage employee from
pursuing claim). In any case, Gawley’s
claims that Norris criticized the OAA
report and distributed it to personnel
who had no right to receive it do not
meet the standard for materiality. "[N]ot
everything that makes an employee unhappy
is an actionable adverse action."
Ribando, 200 F.3d at 511 (quoting Smart,
89 F.3d at 441). In Ribando, we declined
to find that placing a letter of concern
or counseling in the complaining
employee’s personnel file constituted a
materially adverse action. See also
Rabinovitz v. Pena, 89 F.3d 482, 488-89
(7th Cir. 1996) (loss of bonus not
adverse employment action when employee
not automatically entitled to bonus).
Indeed, Gawley concedes in her brief on
appeal that Norris’ actions "may not have
directly resulted in any material changes
in the terms and conditions of Gawley’s
employment." Appellant’s Brief at 40.
Instead, Gawley points to Norris’ anger
with the OAA report as the cause of the
other retaliatory actions she now alleges
(e.g., the delay in receiving her vest,
being ostracized in the department).
Norris’ criticism of and distribution of
the report falls into the same class of
acts as an unfavorable letter in the
employee’s file, and we therefore find
that summary judgment in favor of the
university was appropriate on this claim
as well.
C.
Gawley next defends her claim of
constructive discharge, stating that the
totality of the circumstances to which
she was subjected rendered her working
conditions intolerable. We begin with
Norris’ actions after Gawley complained
about Minger. Gawley concedes that she
was not aware of Norris’ distribution and
criticism of the report until after she
left her employment at the university.
Therefore, these actions by Norris could
not have been the cause of her
constructive discharge. That leaves her
other charges, that she was subjected to
harassing comments about her pants and
breasts, that Minger sexually assaulted
her with impunity when he groped her
breast, she was the last officer to
receive her vest, and that her reports
were more severely scrutinized.
Constructive discharge occurs when an
employee’s discriminatory working
conditions become so intolerable that a
reasonable person in her position would
be compelled to resign. Sweeney v. West,
149 F.3d 550, 557 (7th Cir. 1998). We
held in Sweeney that an employee can be
constructively discharged only if the
underlying working conditions were
themselves unlawful or discriminatory in
some fashion. 149 F.3d at 557-58. We also
noted there that a constructive discharge
claim requires evidence that quitting was
the only way the plaintiff could
extricate herself from the intolerable
conditions. Id. That requirement
eliminates from consideration all of
Minger’s harassing comments about her
pants and her breasts as well as the
groping of her breast because, as we
found above, Gawley waited seven months
before availing herself of the formal
procedures the university established for
victims of harassment even though her
informal efforts to protect herself were
unsuccessful on at least ten occasions by
her own account. As soon as she
complained, the university took action
and Minger’s objectionable conduct
stopped. Nor did she formally complain
about the delay in getting her bullet
proof vest. She remained on the job for
two months after receiving the vest, as
well, indicating that the delay had not
caused her work conditions to become so
intolerable as to cause her to leave her
job. The other evidence of adverse
working conditions is insufficiently
severe to cause a reasonable person to
quit the job. Finally, quitting was not
the only option available to Gawley
because of the university’s procedures
for victims of harassment.
Gawley complains that the university
placed her in a "damned if you do, damned
if you don’t situation." She is being
penalized, she alleges, for living with
the conditions for seven months before
resigning, while trying to seek redress.
We disagree with this characterization.
Gawley did try to use informal means to
resolve the conditions she encountered on
the job. But she did not use the formal
complaint procedure at her disposal even
when her informal efforts repeatedly
failed. We might have a different case if
the most egregious conduct occurred
first, before Gawley had an opportunity
to use the university’s procedures. For
example, if Minger began his harassing
conduct by groping Gawley, conduct that
would constitute a criminal act in many
jurisdictions, we might have a different
case. But what we have instead is a
steady escalation of harassing behavior,
over many months, with the victim failing
to use the procedures her employer put
into place until especially egregious
conduct occurred. And even then, Gawley
did not initially disclose the worst of
Minger’s behavior. Nor did she use the
system to complain that Minger was then
delaying the issuance of her bullet proof
vest, presumably in retaliation for
complaining about his harassing
conduct./9 She did not complain to her
employer about much of the harassment
under the university’s procedures, she
did not include much of the offending
conduct in her EEOC charges, and she
cannot, therefore, defeat the
university’s motion for summary judgment
on this claim.
D.
The district court granted summary
judgment in favor of the university on
Gawley’s state-law spoliation of evidence
claim as well. Gawley based the claim on
Chappell’s destruction of drafts of the
OAA investigative reports and other
documents after the lawsuit was filed.
Indiana arguably recognizes a tort for
spoliation of evidence under certain
circumstances. See Thompson v. Owensby,
704 N.E.2d 134 (Ind. Ct. App. 1998);
Reinbold v. Harris, 2000 WL 1693792 (S.D.
Ind. Nov. 7, 2000). The district court
noted that even if Indiana recognizes
such a tort, one necessary element would
be damages. The court granted judgment in
favor of the university because none of
Gawley’s substantive claims could be
saved by the missing evidence, and
therefore she could not show damages.
Gawley seems to concede in her brief that
if her substantive claims fail, so does
her spoliation claim./10 We agree with
the district court that Gawley cannot
show damages, and therefore we affirm the
grant of summary judgment in favor of the
university on this claim.
That leaves Gawley’s two evidentiary
issues: whether the district court
properly excluded the testimony of her
expert witness, and whether the court
properly excluded her evidence of
harassment against other women at the
university by Minger and others. In light
of our affirmance on grounds that cannot
be cured by the evidence she proffers,
these issues are moot, and we will not
consider them further.
III.
For the reasons stated above, we affirm
the district court’s grant of summary
judgment in favor of the university.
AFFIRMED.
FOOTNOTES
/1 We will assume for the purposes of summary judg-
ment that Minger made his weight-based harassing
comments to women only; the university does not
claim otherwise. We note this only because it is
not immediately obvious that weight-based com-
ments are sex discrimination.
/2 On July 16, 1995, she formally complained about
the breast groping in a memorandum to Tammy
Chappell.
/3 Neither party defines "IDACS" or "CAD." Constru-
ing the facts in favor of Gawley as we must at
this stage of the proceedings, we assume McClain
was requiring more training for Gawley than for
other similarly situated officers and was threat-
ening her with loss of her job if she did not
comply with the additional requirements.
/4 The parties repeatedly refer to this as the tort
of "spoilation" of evidence. We assume they mean
spoliation of evidence, a term for which there is
a body of law in Indiana.
/5 No affirmative defense is available when the
supervisor’s harassment culminates in a tangible
employment action. Ellerth, 524 U.S. at 765.
/6 Title VII also seeks to make persons whole for
injuries suffered on account of unlawful employ-
ment discrimination. Faragher, 524 U.S. at 805-
06.
/7 Even if Minger were a mere co-employee, Gawley
has failed to show any genuine issue of material
fact regarding whether the university was negli-
gent in preventing or correcting the harassment
when it occurred. Employers are liable for a co-
employee’s harassment only when they have been
negligent in discovering or remedying the harass-
ment. See Parkins, 163 F.3d at 1035-38. Gawley
concedes her delay in notifying the university
about Minger’s conduct, and also concedes the
harassment stopped once she complained. Therefore
her claim fails on this alternate ground that she
asked us to consider.
/8 Of course, an employee is not required to file a
separate EEOC charge alleging retaliation when
the retaliation occurs in response to the filing
of the original EEOC charge. See Aviles v. Cor-
nell Forge Co., 183 F.3d 598, 603 (7th Cir.
1999).
/9 We wish to make clear that we are not ruling that
the delay in issuance of the bullet proof vest is
not severe enough conduct to cause a reasonable
person to quit her job. Had Gawley properly
preserved her claims, we might well have a dif-
ferent case. If an employee could show that the
employer delayed the issuance of critical safety
equipment on the basis of gender or race, for
example, the employee might have a cognizable
claim.
/10 Gawley asks us to consider the rule of evidence
that allows us to construe the missing documents
against the university in considering her other
claims. Even if we assume that the initial draft
of the report was more critical of Minger and the
university, and that the report was changed to
favor the university, our conclusions do not
change. Gawley’s claims failed largely because
she failed to avail herself of established proce-
dures and because she failed to properly preserve
her claims in her EEOC charges, not because she
lacked evidence that Minger treated her deplor-
ably.