Anna M. Hall v. City of Chicago , 713 F.3d 325 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3279
A NNA M. H ALL,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-02114—Joan Humphrey Lefkow, Judge.
A RGUED F EBRUARY 15, 2013—D ECIDED M ARCH 29, 2013
Before F LAUM, W OOD , H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. Anna Hall was a female plumber
working in the House Drain Inspectors Division of Chi-
cago’s Department of Sewers, in which all other non-
support staff employees were male. She alleges that her
supervisor, Gregory Johnson, created a hostile work
environment under Title VII. Hall argues that, because
she was female, Johnson assigned her menial work,
prohibited her coworkers from interacting with her, and
2 No. 11-3279
subjected her to verbal violence. The district court
granted summary judgment after concluding Johnson’s
conduct was not hostile particularly in comparison to
other employees’ responsibilities. It also concluded that
Hall failed to produce evidence that Johnson’s conduct
was because of her sex. We reverse as we conclude that
a jury could infer Johnson’s deliberate isolation of Hall
was sufficiently pervasive to constitute a hostile work
environment. On the much closer question of whether
Hall’s gender played a part in Johnson’s actions, we
determine that sufficient evidence to that effect can
arguably be deduced from Johnson’s comments.
I. Background
A. Factual Background
Although Hall has been a plumber for the City of Chi-
cago since 1995, she was on full-time disability leave
from 1999 to 2003 due to a work-related injury. As part
of the City’s return-to-work program, which the Depart-
ment of Sewers implemented in 2003, Hall returned
to the City’s employ with the limitation that she could
not lift over twenty-five pounds. Hall and the City
agree this restriction precluded her from resuming work
as a plumber, so Hall began working in the House
Drain Inspectors Division of the Department. Gregory
Johnson supervised the Division, which at the time
was composed of thirteen male house drain inspectors
and Tonya Cashew, Johnson’s female secretary.
House drain inspectors primarily investigate piping
that connects residential homes with the City’s sewer
No. 11-3279 3
lines as part of the City’s “private drain program,” which
aids property owners in repairing damage to the City’s
piping that affects residential plumbing. To determine
property owners’ eligibility for the program, the house
drain inspectors run a video camera through the piping
to observe whether the drainage problem is on the
City’s side of the system. Naturally, this video captures
images of feces, feminine hygiene products, and other
items flushed down toilets. When the inspectors return to
the office, Johnson or another supervisor reviews the
videos and confirms the inspectors’ conclusions. After-
wards, the tapes remain on file at the office in case a
resident or a member of the city council inquires about
the Division’s determination.
Hall’s assignment to the House Drain Inspectors
Division was a “light-duty” assignment because of her
work restrictions. When she began in the Division,
Johnson assigned her to alphabetize various files for
several weeks. This work turned repetitive, not just
because it was her only task, but because, according to
Hall, Johnson gave her the same papers to sort over and
over again. A few weeks later, Johnson gave Hall a box
of the drainpipe videos. Hall inquired what Johnson
wanted her do with them, to which Johnson responded:
“You’re a plumber. You figure it out.” As she did with
the papers, Hall began repetitively watching the videos.
And although she claims she obediently took notes on
what she observed, Hall testified no one ever reviewed
her notes or accessed the videos she watched. One of
the house drain inspectors, Thomas Cotton, testified that
4 No. 11-3279
Hall’s “assignment . . . was like a non-assignment” and
that she should have done office work rather than
“sitting there watching videos that meant nothing to
her.” Another co-worker, Robert Owens, assumed the
assignment was designed to “kill time.”
Johnson claimed that Hall’s notes aided him in re-
sponding to potential inquiries. He stated he gave
Hall forms to complete and file in conjunction with
this end, although the City never produced them. More-
over, in preparing for an auditor’s review of the Depart-
ment, Hall described her work more generously in a
description she prepared, identifying her duties as
“[r]eviewing private drain program videotapes through
observation of tapes[;] [a] licensed plumber will
interpret what should be placed on a daily inspec-
tion report, perusal by supervisor.” However, Johnson
admitted that he had already reviewed and taken his
own notes on the tapes he gave Hall, making Hall’s
task duplicative.
After several dissatisfying weeks with her assignment,
Hall told Johnson she thought she could provide more
assistance by, for instance, accompanying drain in-
spectors on visits or explaining inspection procedures
to homeowners. She eventually complained to Mary Jo
Falcon, the Sewers Department’s personnel director,
who eventually scheduled a meeting on the subject.
Falcon dismissed Hall’s complaints, and in the process,
called her a “trouble maker,” referencing previous legal
claims she made against the City. Hall continued
reviewing videos until she left the Division in 2005,
nearly two years after she arrived.
No. 11-3279 5
Meanwhile, in addition to her menial work, Johnson
forbade the Division employees from speaking to or
associating with Hall. Moreover, at a Division meeting
just days after she started work, Johnson asked her
to leave, and he ultimately excluded Hall from every
meeting during her time in the Division. Cotton
confirmed that Johnson made clear no one was to talk
to Hall. Johnson justified severing contact with Hall
because he feared the union would not approve of inter-
mingling a plumber with house drain inspectors even
though they belonged to the same union. He also used
this reason to justify actively suppressing some of Hall’s
efforts to take on more responsibility in the Division. For
instance, he once reprimanded Owens for reviewing
blueprints with Hall. He also stated “if a person does
something for so long, they can . . . request to be hired,”
and he did not want Hall “ever to be hired” as a house
drain inspector. Despite his explanation, Johnson ad-
mitted no one ever told him that Hall was not to do
house drain inspector work. In fact, his deposition testi-
mony is apparently in tension with the union justifica-
tion. He acknowledged that a plumber could learn to do
house drain inspector work, and when he was asked
why he forbade Owens from looking at the blueprints
with Hall, he said “[n]o reason for it[;] [t]hat was an
inspector’s job.”
The record reveals several situations in which
Johnson allegedly directed anger towards Hall. First,
Hall testified that on several occasions Johnson tried to
“bump” her in the hall, succeeding one time and leading
Hall to contact the police, her union, and her attorneys.
6 No. 11-3279
The bump only “touch[ed]” her; it did not knock her
down and she continued to work. Hall also testified she
heard Johnson discussing “cursing somebody out,” and
a coworker later told Hall that Johnson was referencing
her. Hall thought Johnson made the statements knowing
she was within earshot. Johnson also called Hall “stu-
pid” and on another occasion raised his hand to her
and yelled “get out.”
Johnson was apparently friendly with the only other
woman in the office, his secretary, but Johnson allegedly
made a few gender-specific comments amid the animus
directed at Hall. First, while watching The Jerry Springer
Show, a somewhat-interesting workplace activity, Hall
claimed Johnson called a female guest “a slut.” Second,
Hall stated she overheard Johnson say, in reference to
Hall, that “[I] ought to slap that woman sitting out there,”
“I could slap that woman and get a promotion,” and
“[I] ought to go postal on that woman.” Hall filed a
complaint and talked to her union about these pur-
ported comments. Johnson denied all of these accusa-
tions, however, and testified that Hall was equally con-
frontational. Indeed, Johnson said he once reported
her conduct to avoid communicating directly with Hall.
In January 2005, Hall filed a Violence in the Workplace
report, which the Department’s labor relations super-
visor, John Zander, investigated. Zander subsequently
transferred Hall eight days after the report and, after
the investigation, reprimanded Johnson in writing.
No. 11-3279 7
B. Procedural Background
In late 2003, shortly after she joined the Division, Hall
filed an internal complaint with the City and a charge
with the Equal Employment Opportunity Commission
(“EEOC”) alleging Johnson had harassed and discrimi-
nated against her on the basis of her sex. She eventually
filed this lawsuit in the Northern District of Illinois.
Hall raised two claims concerning Johnson’s conduct:
he created a hostile work environment under Title VII
and he was retaliating against her because she filed
EEOC charges and an earlier unrelated lawsuit. In addi-
tion to the claims relating to Johnson’s conduct, Hall
also alleged the City discriminatorily denied her two
promotions to “plumber in charge” positions by choosing
male applicants and this, too, was in retaliation for
her previous legal claims. The district court entered
summary judgment against Hall. It concluded the claim
for Johnson’s retaliatory conduct was time barred, and
there was insufficient evidence to support the hostile
work environment and failure-to-promote claims. On
appeal, Hall abandons all but the hostile work environ-
ment claim.
II. Discussion
Title VII of the Civil Rights Act of 1964 provides, in
relevant part, that “[i]t shall be an unlawful employment
practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). Title VII protects not just
8 No. 11-3279
tangible employment actions but also “evinces a congres-
sional intent to strike at the entire spectrum of disparate
treatment of men and women in employment.” Meritor
Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (internal
quotations omitted). Consequently, the statute protects
employees against a hostile work environment so “perme-
ated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation and
quotations omitted).
To survive summary judgment, Hall must first produce
evidence that the alleged harassment was severe or perva-
sive. This requirement is disjunctive—“one extremely
serious act of harassment could rise to an actionable
level as could a series of less severe acts.” Haugerud v.
Amery Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001). The
hostility must be subjectively and objectively hostile. In
other words, Hall must have actually felt harassed and
that feeling must be reasonable. Second, Hall must show
the hostile conditions were because of her sex. Title VII
is not a general prophylactic against workplace animus.
It is only concerned with animus motivated by certain
protected characteristics. Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998). Finally, there must be
a basis for employer liability.
Summary judgment is appropriate when there is no
genuine issue of material fact such that the movant
is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56; Berry v. Chi. Transit Auth., 618 F.3d 688, 690-91
No. 11-3279 9
(7th Cir. 2010). Hall must produce sufficient admissible
evidence, taken in the light most favorable to her, to
return a jury verdict in her favor. Id. at 691. We review
the district court’s decision de novo.
A. Johnson’s Alleged Conduct Was Objectively and
Subjectively Hostile
The thrust of Hall’s claim is that from the day she started
in the House Drain Inspectors Division, Johnson iso-
lated her from her coworkers by assigning her unnecessary
menial work and preventing others from interacting
with her. Johnson compounded this isolation by sporadi-
cally intimidating and directing anger at her.
The City seeks to escape liability by arguing that none
of Johnson’s conduct, viewed in an individual context,
was objectionable, carving out each alleged act of discrimi-
nation and explaining why it was neither severe nor
pervasive. To an extent, we agree. We question whether
any of Johnson’s individual acts alone were sufficiently
severe to constitute a hostile workplace under Title VII.
Hall’s principal focus, the videotape assignment, in
isolation and over the course of her entire tenure,
does not rise to the level needed to survive summary
judgment. The work may have been unpleasant, boring,
and unnecessary, but that can be said of much work.
Data entry, for instance, requires forty-hour weeks of
copying numbers into a database. The videos’ subject
matter is unremarkable given Hall’s occupation and
the role of her Division. Moreover, Johnson’s decision to
never use the videos is not overly problematic. Workers
10 No. 11-3279
are, on occasion, given “busy work,” which lacks a
strong purpose, designed solely to occupy them. The
City also argues that Hall’s banishment from meetings
was reasonable in light of the purported intra-union
politics. As for Johnson’s comments, the City cites a slew of
our cases for the principle that isolated comments (espe-
cially those, like the “slut” comment, not directed at the
plaintiff) do not constitute a hostile work environment.
See, e.g., Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th
Cir. 2007) (“The fact that one’s coworkers do or say
things that offend one, however deeply, does not
amount to harassment if one is not within the target area
of the offending comment.”); Russell v. Bd. of Trustees of
the Univ. of Ill. at Chi., 243 F.3d 336, 344 (7th Cir. 2001); see
also Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463-64
(7th Cir. 2002) (isolated incidents do not generally rise
to hostile work environment).
This analysis, however, does not address our directive
that “[c]ourts should not carve up the incidents of harass-
ment and then separately analyze each incident, by
itself, to see if each rises to the level of being severe or
pervasive.” Mason v. S. Ill. Univ. at Carbondale, 233 F.3d
1036, 1045 (7th Cir. 2000). Instead, a look at the totality
of the circumstances must be had. Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998). Under this approach, we
conclude the alleged conduct was sufficient to establish
a hostile work environment. Taking the facts in the light
most favorable to Hall, a jury could conclude Johnson’s
conduct was designed to ostracize her from the rest of
the Division. Her claim is that she reviewed useless
videotapes, her colleagues were forbidden from speaking
No. 11-3279 11
to her, she was prohibited from Division meetings, her
efforts to take on more work were suppressed, and
Johnson subjected her to occasional verbal outbursts as
well as one minor physical altercation.
Title VII, of course, does not provide a right to
enjoyable work or to communicate with coworkers, but,
according to the allegations, Johnson did more. It is
suggested that he made Hall the Division pariah, unde-
serving of human interaction. The Civil Rights Act of
1964—passed in the wake of immense discrimination
that, for example, required African Americans to use
separate facilities—was plainly designed to prohibit a
workplace in which an employee’s daily treatment is
made on the basis of a protected characteristic. “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.” Oncale, 523 U.S. at 80(quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)).
In analyzing the first prong of Hall’s claim—whether the
alleged conduct was sufficiently severe or pervasive—
we assume arguendo that she can establish that
Johnson’s actions were motivated by her sex (although
this turns out to be a closer question). Cast in this
light, a plaintiff that could show her boss prohibited
coworker conversation because she was black would
surely survive summary judgment. That is what Hall
charges here, except she suggests sex discrimination in
place of racial animus.
Previous cases are not overly helpful in resolving
this highly fact-specific inquiry, but Haugerud does assist
12 No. 11-3279
Hall. In that case, a custodian and supervisor apparently
conspired to force Haugerud, another custodian, from the
coveted day shift at a local high school. Haugerud, 259
F.3d at 685. Among various acts specifically aimed at the
plaintiff, evidence also showed that the school prohibited
male custodians from assisting female custodians, only
the female custodians were assigned the arduous task
of snow removal, other males hid the plaintiff’s tools, the
only other female janitor left the school due to the
hostility, and two supervisors made derogatory com-
ments about their superiority to women. Id. at 694. We
held that, while not severe, the plaintiff met her
summary judgment burden by showing the defendants’
systematic differential treatment of women interfered
with her ability to perform her job. Id. Similarly, in
Pucino v. Verizon Wireless Communications, the Second
Circuit reversed summary judgment where the defendants
had regularly assigned women to work in the dangerous
areas of town, made them work alone, denied assistance
requests from women but not men, and gave women
more dangerous equipment. 618 F.3d 112, 118 (2d Cir.
2010). To be sure, these cases are stronger than Hall’s.
Unlike the plaintiffs in Haugerud and Pucino, Hall does not
allege Johnson prevented her from completing her as-
signed tasks. Nor is Hall similarly situated to her co-
workers (as she is a plumber, not a house drain inspector)
like the plaintiffs in those cases, weakening an inference
that Hall was discriminatorily assigned less favorable
work. Importantly, though, these cases do suggest that
incidents, which viewed in isolation seem relatively
minor, that consistently or systematically burden women
No. 11-3279 13
throughout their employment are sufficiently pervasive
to make out a hostile work environment claim.
As for the requirement of subjective harassment, we
conclude that Hall has produced enough evidence to
create an issue of fact. On several occasions, she re-
ported Johnson’s conduct to her supervisors, the EEOC,
her union, and the police, all of which suggest she inter-
preted the acts as harassing. Plus, we have implied this
burden is not high. Haugerud, 259 F.3d at 695 (The defen-
dant “suggests that plaintiff should have to do more
than declare that she was harassed, yet that is the
whole point of the subjective inquiry: we inquire into
whether the plaintiff perceived her environment to
be hostile or abusive.”).
B. Hall Produced Enough Evidence of Sex Discrimina-
tion
Hall, however, must do more than show Johnson created
a hostile work environment: the motive for the alleged
mistreatment must be “sufficiently connected” to Hall’s
sex. See Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th
Cir. 2004). We do not doubt Johnson harbored animus
towards Hall, but we must review the record to deter-
mine whether Hall has produced enough evidence
from which a jury could infer Johnson was motivated
by Hall’s gender. Beamon v. Marshall & Ilsley Trust Co., 411
F.3d 854, 863 (7th Cir. 2005) (“not every perceived unfair-
ness in the workplace may be ascribed to discrimina-
tory motivation merely because the complaining em-
ployee” possesses a protected characteristic). Although
this question is close, we conclude that she has.
14 No. 11-3279
First, Hall was the only female in the House Drain
Inspectors Division besides Johnson’s secretary. These
employees have responsibilities and backgrounds sim-
ilar to plumbers, and they are usually male. As such,
the fact that Johnson’s secretary was also female does
not foreclose the inference that Hall’s gender in-
fluenced Johnson’s conduct: an actor may discriminate
against only certain females such as those in traditionally
male roles. Alice H. Eagly & Antonio Mladinic, Are
People Prejudiced Against Women? Some Answers from
Research on Attitudes, Gender Stereotypes, and Judgments of
Competence, 5 Eur. Rev. Soc. Psychol. 1, 1 (1994) (“Although
research on [attitudes and stereotypes] has not shown a
pervasive tendency to devalue women’s work, it has
demonstrated prejudice against women in masculine
domains (e.g. male-dominated jobs, male-stereotypic
behavior).”). Indeed, this research suggests an employee’s
discrimination would manifest against Hall and not the
secretary, as the latter is a position more identified with
female stereotypes.
If a supervisor treated all women hostilely, we gen-
erally permit an inference that the actor was motivated
by their gender. See Oncale, 523 U.S. at 80-81; see, e.g.,
Pucino, 618 F.3d at 118; Smith v. Sheahan, 189 F.3d 529, 533
(7th Cir. 1999) (reversing summary judgment because
“Smith furnished affidavits . . . documenting [the
harasser’s] recurrent hostile behavior toward his
female co-workers . . . . unmatched by similar reports of
verbally and physically aggressive behavior toward male
co-workers”). On the one hand, these cases seem to sup-
port Hall. She was the only female, and Johnson
No. 11-3279 15
allegedly made her workplace hostile. However, in these
cases, the defendant subjected multiple women to the
hostility. In other words, the only characteristic the
women in those cases had in common was their gender,
suggesting it motivated the defendant. Here, while
Hall was the only female, she was also the only person
who, for instance, was a plumber, not a house drain
inspector, or who the City placed in Johnson’s depart-
ment through the return-to-work program. Thus, unlike
the cited cases, where the existence of multiple victims
permitted the jury to eliminate alternative explanations
for the discriminatory acts, here we are left to speculate
which among Hall’s various traits and statuses led
to Johnson’s conduct.
Speculation is not enough. See Rand v. CF Indus., Inc.,
42 F.3d 1139, 1146 (7th Cir. 1994). True, Hall’s status
shows Johnson was possibly motivated by her gender, but
every hostile work environment plaintiff will possess a
protected characteristic. That coincidence alone does not
provide an inference of sex discrimination. Otherwise,
we would require Johnson to bear the burden of proving
he was not motivated by gender.1 See Springer v. Durflinger,
1
Of course, under the McDonnell Douglas burden shifting
framework, through which we analyze traditional discrimina-
tion claims that end in an adverse employment action, plain-
tiffs need only make out a prima face case that (1) they belong
to a protected class; (2) their performance met the employer’s
legitimate expectations; (3) they suffered an adverse employ-
ment action; and (4) similarly situated others not in the pro-
(continued...)
16 No. 11-3279
518 F.3d 479, 484 (7th Cir. 2008). Thus, Hall must also
produce something more to suggest that, among the
various explanations for Johnson’s actions, he was moti-
vated by gender. See, e.g., Davis v. Team Elec. Co., 520
F.3d 1080, 1095-96 (9th Cir. 2008) (reversing summary
judgment in case where only female electrician was
given more hazardous jobs and forbidden from certain
meetings because the magistrate judge did not ade-
quately consider comments like “this is a man’s working
world out here,” “astrobitch,” and “[w]e don’t mind
if females are working as long as they don’t complain”).
Accordingly, we look at Johnson’s perceived aggres-
sion and determine if anything suggests a gen-
der-discriminatory motive. For instance, had Johnson
said “I’m going to make that ‘bitch’ do mindless work” or
“no one can talk to that ‘dumb woman,’ ” we would
have little trouble finding a permissible inference
that Johnson was motivated by gender. In those ex-
amples, the discriminatory acts are connected to com-
ments evidencing gender animus. Here, although most
of Johnson’s conduct was devoid of gender-specific
indicia, Johnson’s alleged comment, in reference to Hall,
that “he ought to slap that woman sitting out there” and
“I could slap that woman and get a promotion” suggests
1
(...continued)
tected class received more favorable treatment. E.g., Brummett
v. Lee Enters., Inc., 284 F.3d 742, 744 (7th Cir. 2002). Then,
the defendant does bear the burden of providing a legitimate
non-discriminatory reason for the action over which the plain-
tiff can create an issue of fact.
No. 11-3279 17
that perhaps some of Johnson’s alleged animus stemmed
from Hall’s gender. This form of aggression is almost
entirely limited to women—rarely does one say they are
going to “slap” a male. To the extent any ambiguity
remains, Johnson attached “that woman” to the end of the
sentence, permitting a juror to conclude Hall’s gender
was one factor leading to the outburst. And because the
totality of a defendant’s conduct underlies a hostile
work environment claim, a jury is free to conclude
that an animus towards Hall’s sex motivated all of his
aggression if it infers Hall’s gender caused this com-
ment, which is one component of Johnson’s alleged
hostility.2 See Raniola v. Bratton, 243 F.3d 610, 622 (2d
Cir. 2001) (“We have held that prior derogatory com-
ments . . . may permit an inference that further
abusive treatment by the same person was motivated
2
In this regard, a hostile work environment claim is different
than a typical Title VII claim, where we require contemporane-
ousness between the comment and action. See, e.g., Markel v.
Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 910-11 (7th
Cir. 2001). The plaintiffs in those cases allege discrimination
based on a single adverse employment action (usually a termina-
tion), and we generally conclude that if the comment came
months before the action, nothing suggests the plaintiff’s race
or gender played a part in the speaker’s decision. In hostile
work environment claims, on the other hand, the plaintiff
alleges a series of actions changed the conditions of her em-
ployment. Here, Johnson’s comment was sufficiently con-
nected (not to mention contemporaneous) with one component
of her claim, an enraged outburst, permitting an inference
that gender animus played a part in all of Johnson’s con-
duct even though it remained mostly unspoken.
18 No. 11-3279
by the same sex-bias manifested in those earlier com-
ments.”).
In short, at this stage we take the facts and inferences
in the light most favorable to Hall and conclude that
this ambiguous, context-dependent comment could be
viewed as evidencing gender animus, which in turn
permits a jury to conclude that gender played a part in
all of Johnson’s actions. Additionally, ample evidence—
such as the tension in Johnson’s union explanation—allows
a jury to reject Johnson’s non-discriminatory justifica-
tions for his actions. As such, Hall has created an issue
of fact that should be resolved at trial.
We believe the district court’s error arose in the
method through which it evaluated these comments. It
correctly relied on our cases to conclude that the
comments did not cross “the line that separates the
merely vulgar and the mildly offensive from the deeply
offensive and sexually harassing.” See Bakerville v.
Culligan Int’l Co., 50 F.3d 428, 431 (7th Cir. 1995). However,
this conclusion only relates to the first prong—whether
the work environment was sufficiently severe or perva-
sive. We agree the comments do not make it objectively
hostile. But, as explained above, we conclude that
the isolation and occasional outbursts did satisfy
that requirement. We view the comments, unlike the
district court, in analyzing the second requirement of a
hostile work environment claim—whether the alleged
hostility was “because of sex”—and we conclude that
they arguably connect Hall’s gender to Johnson’s conduct.
To be sure, Johnson’s comments are quite different
than gender-specific comments that do not evidence
No. 11-3279 19
gender animus. “I hate her” or “she drives me nuts,” by
definition, cannot apply to men. The list of other gen-
der-specific comments that do not necessarily evidence
harassment is endless: e.g., “that lady” or “every female.”
Where a comment crosses the line from gender specific
to evidencing gender animus is blurry and depends on
the factual context. “That woman needs to talk to her
supervisor” is different than “that woman is undeserving
of employment” (a discriminatory inference depends
on why she is undeserving), which is different still
than “I’m going to slap that woman.” The permissible
inferences could shift further depending on the
speaker’s conduct with other females, his history with
whom the speech references, or a host of other factors.
“When a word is ambiguous, context is everything.”
Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d
1164, 1168 (7th Cir. 1996). Thus, we even held “bitch,” in
certain contexts, might not show gender played a part
in the employer’s conduct. Compare id. (affirming
summary judgment when supervisor called his former
lover “sick bitch” because, as used, it was synonymous
with “looney” and motivated by personal animus from
the relationship), with Passananti v. Cook Cnty., 689 F.3d
655, 665 (7th Cir. 2012) (affirming jury verdict in which
defendant called employee “bitch,” “stupid bitch,” “f’n
bitch” and treated other females poorly). Finally, to this
end, a jury would remain free to conclude Johnson was
not motivated by sex, because it believes, for instance,
in this context “that woman” is indistinct from “she” or
evidence at trial shows Johnson was actually predomi-
nantly upset that Hall was a poor worker.
20 No. 11-3279
C. The City Is Vicariously Liable If Hall Succeeds
Generally, an employer is liable for the hostile work
environment created by a supervisor. Faragher, 524 U.S. at
807. However, unless a “tangible employment action
is taken, a defending employer may raise an affirmative
defense . . . . (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harass-
ing behavior, and (b) that the plaintiff employee unrea-
sonably failed to take advantage of any preventive
or corrective opportunities provided by the employer or
to avoid harm otherwise.” Id.Hall first argues that the affirmative defense does not
apply because the hostile work environment “culminated”
in a tangible employment action: “the reassignment to
menial ‘make work’ reviewing of videotapes, i.e. reas-
signment with significantly different responsibilities.”
This argument fails because Hall’s work assignment
could not have been the culmination of anything—
Johnson assigned the work at the outset of her time in
the Division. Moreover, she was not “reassigned” to
the role because she had not worked for the three
years preceding her return to work.
The City, for its part, raises the affirmative defense,
arguing that Hall was transferred within a week after
she filed her Violence in the Workplace report and it
issued Johnson a written reprimand after investigating
Hall’s allegations. The City additionally argues that
Hall unreasonably waited a year to report Johnson’s
threatening statements.
No. 11-3279 21
The City’s arguments, however, skew the record. Al-
though the City reacted promptly to Hall’s Violence in
the Workplace report, the record also shows Hall first
raised her concerns about her assignments a few weeks
into her new position, not years later. This was met with
dismissive allegations that Hall was a troublemaker, and
Hall followed with her first EEOC charge. Moreover,
Hall complained to the police and her union after the
bumping incident, which occurred in February 2004.
These measures, all of which preceded the Violence in
the Workplace complaint, provided ample information
from which a jury could conclude that Hall alerted the
City to the perceived hostility and the City tardily re-
sponded only after the final complaint. This conclusion
is bolstered by the City’s failure to produce a codified
sexual harassment policy with steps that Hall failed to
follow in complaining about Johnson’s conduct. Id. at
808 (“While proof that an employer had promulgated
an antiharassment policy with complaint procedure is
not necessary in every instance as a matter of law, the
need for a stated policy suitable to the employment
circumstances may appropriately be addressed in any
case when litigating the first element of the defense.”).
As such, we find Hall has also created a jury question
on this final element of her claim.
22 No. 11-3279
III. Conclusion
For the foregoing reasons, we R EVERSE the district
court’s entry of summary judgment on Hall’s hostile
work environment claim and R EMAND for further pro-
ceedings consistent with this opinion.
3-29-13