Venezia, Frank v. Gottlieb Memorial ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1976
FRANK VENEZIA and LESLIE VENEZIA,
Plaintiffs-Appellants,
v.
GOTTLIEB MEMORIAL HOSPITAL, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 7225—John W. Darrah, Judge.
____________
ARGUED DECEMBER 15, 2004—DECIDED AUGUST 26, 2005
____________
Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Frank and Leslie Venezia, husband
and wife, brought this action alleging that each one had
suffered sexual harassment and a hostile work environment
at the hands of the Gottlieb Memorial Hospital, Inc. The
district court granted the Hospital’s motion to dismiss
under FED. R. CIV. P. 12(b)(6), on the theory that a husband
and wife could not logically both maintain claims based on
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
and 2000f, against a single employer in one action. The
Venezias appeal. We find that the district court erred in
assuming that the normal rule permitting joinder of parties,
2 No. 04-1976
expressed in FED. R. CIV. P. 20(a), does not apply to co-
plaintiffs who are husband and wife. We therefore reverse
and remand for further proceedings.
I
Both the Venezias (to whom we refer by first name where
necessary to avoid ambiguity) were for a period of time
employees of the Hospital. Leslie began work there in
December 1993, holding various jobs including at the end
the position of Director of Child Care; Frank joined her in
November 2000, working in the Building Services and
Maintenance Department as a maintenance worker. As a
result of the actions described below, Leslie resigned from
Gottlieb on July 12, 2002. Frank resigned on October 24,
2002.
In the complaint, whose allegations we accept for pur-
poses of this appeal from a dismissal based on Rule 12(b)(6),
Frank alleged that his supervisor and coworkers created a
hostile work environment and that the Hospital failed to
take corrective action. The harassment began with three
anonymous notes left on garbage cans in the Emergency
Room Department of the Hospital, which suggested that
Frank had obtained his job “through the efforts of his wife.”
One of the notes insinuated that these “efforts” involved
sexual acts. Other notes left at Frank’s workplace repeated
this accusation and claimed that Frank would be fired by
his supervisor, Mark Hannon. One note also said, “Why
don’t you go to work with your pig friends.”
This was not the only way in which Frank’s work environ-
ment was made hostile. In addition, pictures of nude men
were left on his bulletin board and another employee forced
him to leave them in place; coworkers crassly inquired
about his relationship with his wife; someone sent him a
pornographic picture of a nude woman that referred to
Leslie; Hannon used profanity while accusing Frank of
No. 04-1976 3
having a bad attitude; Hannon held a group meeting where
coworkers listed their complaints against Frank; Frank’s
property was damaged; people were spitting on his coat, his
work cart, and his locker; he was shunned by his coworkers;
and he discovered the words “your dead” at his workstation.
He complained about all of this to the Hospital, which
investigated his complaints but did nothing to correct any
of the problems.
Under stress, Frank took a medical leave from work
on July 18, 2002. After his leave expired three months later,
the Hospital notified him that he could request
an additional two-month extension of the leave, but “that no
job guarantee accompanies this extension.” The Hospital
requested a response from him within two weeks if he
wished to continue in his position. Frank interpreted the
Hospital’s refusal to guarantee his employment after the
extended leave period as a “coerced resignation or firing.”
Leslie’s complaints apparently also begin around the
middle of the year 2001. In general, she claimed that
she was subjected to a hostile work environment and
was constructively discharged. First, she alleged that
Frank’s coworker, Jim Klein, attempted to force her to
fire Jennifer Roth, a woman whom she had hired in
her capacity as Director of the Hospital School. Leslie
refused. Shortly thereafter, she alleged, Klein began telling
Hospital employees that she “sat on his lap, in the presence
of her husband, Frank Venezia, for the pur-
pose of demeaning” Frank. Second, she alleged that she
discovered notes directed toward Frank but making refer-
ence to her, including one photograph of a “female body in
a most vulgar way, which photograph was referenced to the
plaintiff, Leslie Venezia.” Third, she alleged that the tires
of her car and those of one of her employees were slashed
after she and the employee complained that money had
been taken from the employee’s desk. Leslie reported this
incident to the Human Resources Department and impli-
4 No. 04-1976
cated Maintenance Department workers in the report. As
with Frank’s complaints, the Hospital took no corrective
action, leading Leslie to resign on July 12, 2002.
Frank and Leslie both filed complaints with the Equal
Employment Opportunity Commission (EEOC). Frank
alleged that he had experienced sexual harassment and
retaliation for complaining about the harassment, while
Leslie alleged sexual harassment and constructive dis-
charge. Frank received a Notice of Right to Sue from the
EEOC on July 17, 2003, and Leslie received a separate
Dismissal and Notice of Rights the same day.
The Venezias then filed a timely complaint against the
Hospital, in which they were listed as co-plaintiffs. The
district court, citing this court’s decision in Holman v.
Indiana, 211 F.3d 399 (7th Cir. 2000), granted the Hospi-
tal’s motion under Rule 12(b)(6) to dismiss. The court
read Holman to hold that a married couple bringing a
single action could not establish that the same employer
harassed them and discriminated against them on ac-
count of their sex in violation of Title VII. Such treatment,
in the court’s view, would necessarily be against both a man
and a woman and therefore could not be based on sex.
It is not clear from the court’s order whether it focused on
the distinct claims that each person was asserting. In its
order, the court explicitly dismissed without prej-
udice counts I and II of the complaint, which pertain only to
Frank’s claims. The order did not mention counts III and
IV, which present Leslie’s case, but the order did discuss
facts pertinent to her case. Most important for purposes of
our appellate jurisdiction, the conclusion stated that the
court was granting the Hospital’s motion to dismiss;
reference to that motion shows that it related to the entire
complaint. Furthermore, the docket sheet shows that the
court entered judgment dismissing the case on March 17,
2004. We are therefore satisfied that the court disposed of
No. 04-1976 5
the entire case in its ruling and that the appeal is properly
before us.
II
On appeal, the central question is whether the district
court correctly concluded that the Holman decision required
dismissal of the Venezias’ complaint. In Holman, husband
and wife plaintiffs alleged that their supervisor at the
Indiana Department of Transportation had sex-
ually harassed each of them individually on separate
occasions; they further claimed that because they had
rejected his sexual advances, he had retaliated against each
of them. 211 F.3d at 400-01. This court affirmed the district
court’s dismissal of the claim under Rule 12(b)(6). Relying
on Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75(1998), we held that discrimination in sexual harassment
cases “is to be determined on a gender-comparative basis:
‘The critical issue, Title VII’s text indicates, is whether
members of one sex are exposed to disadvantageous terms
or conditions of employment to which members of the other
sex are not exposed.’ ” 211 F.3d at 403 (quoting from Oncale,
523 U.S. at 80, which in turn quoted from Harris v. Forklift
Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring))
(emphasis markings deleted). The Holmans’ claims, we
concluded, were an example of the “equal opportunity
harasser,” and thus fell outside the reach of Title VII.
The Venezias concede, as they must, that their case has
at least a superficial resemblance to Holman, because
once again we see a husband and a wife simultaneously
suing an employer for sexual harassment and related
charges. They argue that their situation is different,
however, because it does not involve a single supervisor.
Instead, as the account of the facts above illustrates, each
one suffered from distinct harassing actions, at the hands
of different people, albeit with a certain amount of overlap.
6 No. 04-1976
Thus, Holman would govern their case only if the idea
of the “equal opportunity harasser” could be extended
from the individual harasser to the overall entity.
Such a step would be unwarranted, in our view. It
would exclude the possibility of a lawsuit by a husband and
wife employed by the same large company, in which the
wife reports to Supervisor A, who discriminates against
women, and the husband reports to Supervisor B, who
discriminates against men. It is easy enough to see how
both wife and husband could file separate suits against the
company and pursue their claims. The fact that they have
joined together as plaintiffs against a common defendant,
where common issues of fact may include what kind of
workplace harassment policy the employer had and how
was it disseminated to the employees, makes no legal
difference. See FED. R. CIV. P. 20(a) (permitting all persons
to join in one action as plaintiffs if, among other things,
“any” question of law or fact common to all these persons
will arise in the action). Here, the allegations supporting
Frank and Leslie’s joined complaints are sufficiently
distinct that it was error to dismiss them under Rule
12(b)(6).
In addition to Holman, the district court also relied on
Pasqua v. Metro. Life Ins. Co., 101 F.3d 514 (7th Cir. 1996),
to support its result. There too, anticipating Oncale, we
ruled that “[h]arassment that is inflicted without regard to
gender, that is, where males and females in the same
setting do not receive disparate treatment, is not actionable
because the harassment is not based on sex.” Id. at 517.
Relying on that principle, we found that workplace gossip
based on a relationship between two workers (one male, one
female) does not amount to sex discrimination. As we
observed, “[t]here was not even a hint in the record that any
rumors or vulgar statements concerning an illicit relation-
ship between Pasqua and Vukanic were made because
Pasqua was a male.” Id. (emphasis in the original). Like
No. 04-1976 7
Holman, however, Pasqua postulates a male and a female
in the “same setting.” This does not preclude vicarious
liability for the employer with respect to two related
employees who are in different settings, reporting to
different supervisors, with different co-workers.
Although we have rejected the primary ground on
which the district court relied for its judgment, we must
also address the Hospital’s alternative argument, which is
that the complaint was insufficient in any event to state
a claim under Title VII for either Frank or Leslie. We
look first at the allegations pertaining to Frank, and then to
those involving Leslie.
Frank alleged numerous instances of harassment that
he claimed occurred “because of his sex,” some of which
were attributable to coworkers and others to his supervisor.
This was more than enough to put the Hospital on notice of
the kind of claim he was raising and of what he asserts it
did wrong. As his employer, the Hospital is strictly liable
for the actions of its supervisors, subject to certain affirma-
tive defenses that are not relevant at this stage of the case.
See McPherson v. City of Waukegan, 379 F.3d 430, 439 (7th
Cir. 2004). It is also liable for the actions of his coworkers
if it negligently failed to discover or remedy them. Williams
v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004).
Even if one assumed that Frank’s work environment
in the Maintenance Department was unisex, Oncale
supports a claim that he was harassed “because of his sex.”
The Court explained there that although “male-on-male
sexual harassment in the workplace was assuredly not
the principal evil Congress was concerned with when it
enacted Title VII,” a hostile work environment claim is
nevertheless possible even when the harasser is of the same
sex as his victim. Oncale, 523 U.S. at 79. Frank’s complaint,
construed in the light and with the inferences most favor-
able to him, states a claim under Title VII. See Bennett v.
8 No. 04-1976
Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (describing the
statement “I was turned down for a job because of my race”
as sufficient to state a Title VII claim and overcome a Rule
12(b)(6) motion).
Leslie’s case may be somewhat closer to the line, but
we conclude that she too has alleged enough to satisfy
the notice pleading requirements that prevail in federal
court. She does not appear to assert that any supervisor has
harassed her, but as we just noted, Title VII also makes an
employer vicariously liable for coworker harassment if it
was “negligent either in discovering or remedying the
harassment.” Mason v. Southern Ill. Univ. at Carbondale,
233 F.3d 1036, 1043 (7th Cir. 2000) (quoting Parkins v.
Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir.
1998), which in turn was quoting from Perry v. Harris
Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997)). Like
Frank, she asserts that a variety of harassing events took
place at the workplace “because of her sex.” Although
further development of the case may reveal that some or all
of the alleged harassment was unrelated to Leslie’s sex, or
that it was the type of low-level annoyance that is not
actionable, it is too soon for us to draw that conclusion.
Importantly, unlike the coworkers in Pasqua and the
spouses in Holman, Leslie alleges some instances of
harassment that were unique to her.
Last, we touch briefly on the Hospital’s effort to eliminate
the sexual harassment claims against it. It argues that
neither of the Venezias can demonstrate an adverse
employment action and that this is something that
must appear even in their pleadings. But, stressing as
we have throughout that we are only at the initial stage
of this litigation, they have each alleged enough to sat-
isfy their burden under FED. R. CIV. P. 8(a). A hostile
work environment can become so severe that it gives rise to
a constructive discharge, which is an adverse employment
action. See Herron v. DaimlerChrysler Corp., 388 F.3d 293,
No. 04-1976 9
303 (7th Cir. 2004); see also Pennsylvania State Police v.
Suders, 124 S. Ct. 2342, 2355 & n.9 (2004); EEOC v. Univ.
of Chicago Hosp., 276 F.3d 326, 331 (7th Cir. 2002) (observ-
ing constructive discharge is a materially adverse employ-
ment action). Both Frank and Leslie have alleged that this
occurred, in different ways. Frank claims that the way that
the Hospital handled his medical leave was either a
disguised firing or a constructive discharge, while Leslie
argued that its toleration of the pornographic photographs
associated with her, along with violence such as the tire-
slashing, left her with no choice but to depart.
III
Briefly put, the district court erred in believing that the
existence of husband and wife co-plaintiffs in the same Title
VII suit against a single defendant was enough, in itself, to
render the case deficient as a matter of law. Moreover, as a
matter of pleading, both plaintiffs have stated a claim upon
which relief may be granted. We therefore REVERSE and
REMAND this case for further proceedings consistent with
this opinion.
10 No. 04-1976
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-26-05