Kampmier, Shannon v. Emeritus Corporation ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1788
SHANNON KAMPMIER,
Plaintiff-Appellant,
v.
EMERITUS CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 C 50399—Philip G. Reinhard, Judge.
____________
ARGUED NOVEMBER 3, 2006—DECIDED JANUARY 2, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Emeritus Corporation (“Emeri-
tus”) employed Shannon Kampmier as a practical nurse
for six months.1 Emeritus terminated Kampmier for job
abandonment because she did not call or show up for
1
The captions on both parties’ briefs named “Emeritus As-
sisted Living” and “The Loyalton of Rockford” as defendants.
However, “Emeritus Assisted Living” and “The Loyalton of
Rockford” are merely trade names, which cannot be sued. See
Schiavone v. Fortune, 477 U.S. 21, 23 (1986). The proper defen-
dant is Emeritus Corporation.
2 No. 06-1788
three of her shifts and failed to provide Emeritus with a
doctor’s note. Kampmier brought a 10-count complaint
against Emeritus including ADA, Title VII, and ERISA
claims. Emeritus moved for summary judgment, which
the district court granted. Kampmier now appeals. For the
following reasons, we affirm in part and reverse in part.
I. BACKGROUND
Emeritus, an operator of assisted living communities,
employed Kampmier as a licensed practical nurse at the
Loyalton of Rockford (“the Loyalton”), in Rockford, Illinois
from March 2003 until September 2003. During that
period, Lynelle Lawson was Emeritus’ Regional Director
of Operations and Divisional Director of Operations.
Lawson oversaw the operations of multiple facilities,
including the Loyalton. Michelle See, the Human Re-
sources Director, was responsible for employee relations
at the Loyalton and approved the hiring decisions for
executive directors and department heads. Lena Badell
served as Executive Director of the Loyalton, overseeing
the daily operations and the Loyalton’s staff. Badell
reported directly to Lawson, who hired Badell for her
position. During Kampmier’s employment, she reported
directly to the Director of Nursing. In 2003, three differ-
ent women held that position: Karen Grover, Jenni Stine,
and Valerie Skinner.
A. Sexual Harassment
Kampmier alleges that Lena Badell, who is a lesbian,
made frequent offensive, sexually perverse comments to
Kampmier and other women throughout Kampmier’s
employment. Kampmier alleges that Badell referred to
herself as “queer little old me” and made numerous
references to being gay. Kampmier also asserts that
No. 06-1788 3
Badell made sexually explicit comments such as, “I can
turn any woman gay,” “I can eat you out,” “I eat [my
girlfriend] out every night,” and “I make [my girlfriend]
come every night within the first five minutes.” Kampmier
further alleges that Badell made jokes about being gay,
commented to Kampmier about another female employ-
ee’s “boobs,” and described how she liked them. In addi-
tion to the comments, Kampmier claims that Badell
grabbed her buttocks thirty times, hugged her fifty to sixty
times, grabbed her around the arms, jumped in her lap ten
times, kissed her on the cheek, and rubbed up against her
during Kampmier’s employment at the Loyalton.
Emeritus’ employee handbook, which was in effect
during Kampmier’s employment, outlined a harassment
prevention policy that advised employees to report harass-
ment or discrimination to their immediate supervisors,
the executive director, the business office director, or any
member of Emeritus’ management team. Under the
policy, if a complaint was reported to management,
Emeritus was required to perform an investigation and
subsequently inform the aggrieved employee of the out-
come of the investigation. Kampmier contends that she
complained about Badell’s behavior to Badell, Grover, and
Stine. Grover says that she reported Kampmier’s claims
to Lawson, but Lawson denies ever receiving them.
Emeritus did not discipline Badell while at the Loyalton.
B. Kampmier’s Endometriosis
Kampmier suffers from endometriosis, a condition where
tissue similar to the lining of the uterus (the endometrial
stroma and glands, which should only be located inside
the uterus) is found elsewhere in the body. She was
diagnosed when she was 16 years old and has had an
average of one to two surgeries a year since that time,
4 No. 06-1788
including fifteen laparoscopic surgeries and cervical
scrapings. As a result of the endometriosis, Kampmier had
pregnancy complications with both of her children. She
also had an ectopic pregnancy in 2000. Kampmier’s
endometriosis flares up a week or two before and after her
menstrual cycle, during painful periods, and for a month
and a half after surgery. For two weeks after her surgery
in 2003, Kampmier had difficulty walking, cleaning her
house, caring for her child, engaging in sexual inter-
course or driving (she was on Vicodin). When Emeritus
hired her, Kampmier did not indicate that she required
accommodation for any physical impairment and did not
inform Emeritus of her condition. Kampmier did not take
off any time from work for illness between March and late-
August 2003.
C. Kampmier’s Termination
In 2003, Kampmier was scheduled to work on Friday,
August 29 and Monday, September 1, which was Labor
Day weekend. On Thursday, August 28, 2003, Kampmier
went to her physician, Dr. Higgins, because she was in
pain. He recommended that Kampmier have a hysterec-
tomy to correct her endometriosis. Dr. Higgins informed
Kampmier that he would have someone contact her on
Monday, September 1, or Tuesday, September 2, to set up
the hysterectomy. In the interim, he instructed her to
take off work.
After speaking with Dr. Higgins, Kampmier called
Badell at home to cancel her Friday and Monday shifts.
Kampmier told Badell that she might need a hysterec-
tomy and that it would be scheduled as soon as possible.
Badell said that was fine and that Badell had recently
undergone a hysterectomy and knew exactly what
Kampmier was going through.
No. 06-1788 5
On Friday, August 29, Badell contacted Kampmier and
requested a doctor’s note.2 Kampmier called Dr. Higgin’s
office and spoke with his office nurse who told Kampmier
that the doctor was out of the office. Kampmier asked the
nurse to call Badell; however, Badell never received a
phone call or a note and Kampmier never followed up with
the doctor, Badell, or the nurse.
On September 2, Kampmier called Badell and informed
her that surgery was scheduled and she would need some
time off, indicating that it might be two weeks, three
weeks, or eight weeks depending on whether she had a
hysterectomy or laparoscopic surgery.
Later that day, Badell and Skinner called Kampmier’s
home. Kampmier’s mother answered and told Badell
and Skinner that Kampmier was sleeping. Badell and
Skinner asked Kampmier’s mother to tell Kampmier
that she needed to send a doctor’s note to the Loyalton.
Badell testified that she made the phone call because
another nurse claimed to have seen Kampmier at a Labor
Day parade. Kampmier’s mother promised that Kampmier
would call the Loyalton as soon as Kampmier woke up.
Kampmier did not return Badell’s phone call.
On September 5, several hours after the beginning of
Kampmier’s scheduled shift, Kampmier called Badell
and told Badell she was having surgery that evening. She
told Badell that she would be back at work in two weeks.
Kampmier did not come to work or call in for her shifts on
September 6-8. Badell and Skinner contacted Kampmier’s
doctor’s office and asked that the office fax a note, but
they never received one. Badell and Skinner then con-
tacted Lawson and informed her of the situation. Lawson
2
Emeritus’ attendance policy provides that an employee who
is absent two or more days may be required to bring in a doc-
tor’s note upon return to work.
6 No. 06-1788
told them to speak with the human resources director,
Michelle See, to discuss the process to follow.
Skinner told See that Kampmier was not showing up for
her scheduled shifts and had failed to provide Emeritus
with a doctor’s note. Together, See, Skinner, and Badell
reviewed the facts, the schedule, and Emeritus’ attendance
policy, which provides, “If an employee is unable to report
to work[,] they are required to contact their supervisor
a minimum of two hours prior to the start of their shift.”
The attendance policy also states in bold capital letters,
“A no-call, no-show is grounds for immediate termination.”
On September 8, 2003, Badell spoke separately by tele-
phone with See and Lawson, and the three agreed to
terminate Kampmier for job abandonment because she
did not report or call in for her scheduled shifts and be-
cause she failed to provide Emeritus with a doctor’s note.
Kampmier received a letter, dated September 8, 2003,
stating that Emeritus interpreted her failure to call or
show up for work as voluntary resignation. Kampmier
complained about her termination to both See and Lawson,
neither of whom would reinstate her. In her phone call
with See, Kampmier complained that Badell had sexually
harassed her. After speaking to Kampmier, See informed
both Lawson and Badell about the allegations, which
Badell denied.
On September 23, 2004, Kampmier filed a ten-count
complaint against Emeritus in the Northern District of
Illinois. Kampmier brought disparate treatment (Count I),
reasonable accommodation (Count II), and retaliation
claims (Count III) under the ADA; disparate treatment
(Count IV), sexual harassment (Count V), and retaliation
claims (Count VI) under Title VII; an ERISA claim; and
state law claims for negligent hiring, negligent training
and supervision, and intentional infliction of emotional
distress.
No. 06-1788 7
On August 8, 2005, Emeritus filed a motion for summary
judgment. On February 15, 2006, the district court granted
the motion on counts I-VII of Kampmier’s complaint. The
district court also declined to assert jurisdiction over
the remaining state law claims.
II. ANALYSIS
This Court reviews a district court’s entry of summary
judgment de novo. Davis v. Con-Way Transp. Cent. Ex-
press, Inc., 368 F.3d 776, 782 (7th Cir. 2004). Summary
judgment is inappropriate if there is a genuine issue of
material fact. See McCoy v. Harrison, 341 F.3d 600, 604
(7th Cir. 2003). To survive summary judgment, the non-
moving party must make a sufficient showing of evi-
dence for each essential element of its case on which it
bears the burden at trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
A. ADA
1. Disability Discrimination
Kampmier first claims that the district court erred by
granting summary judgment on her ADA discrimination
claim. Because she does not have direct evidence of
disability discrimination, she must proceed on the basis
of the indirect burden-shifting method of proof. See Leffel
v. Valley Fin. Servs., 113 F.3d 787, 792 (7th Cir. 1997). To
make a prima facie case of disability discrimination at
the summary judgment phase, a plaintiff must offer evi-
dence that: 1) she is disabled within the meaning of the
ADA, 2) she was meeting her employer’s legitimate
employment expectations, 3) she was subject to an ad-
verse employment action, and 4) similarly situated em-
ployees received more favorable treatment. Rooney v. Koch
8 No. 06-1788
Air, LLC, 410 F.3d 376, 380-81 (7th Cir. 2005). Both
parties agree that Kampmier was meeting Emeritus’
legitimate employment expectations, and, for purposes of
appeal, Emeritus concedes that it terminated Kampmier.
Thus, the parties only dispute the first and fourth prongs
of Kampmier’s prima facie case.
a. Disability
An individual can prove that she is disabled under the
ADA by establishing that: 1) she has a physical or
mental impairment that substantially limits one or more
major life activities, 2) she has a record of such an impair-
ment, or 3) she is regarded as having such an impair-
ment by her employer. 42 U.S.C. § 12102(2)(A).
Kampmier has not proven that she has a physical or
mental impairment that substantially limits one or more
major life activities. “Substantially limits” means that
Kampmier is unable to perform a major life activity
that the average person in the general population can
perform or is significantly restricted as to the condition,
manner, or duration under which the average person in
the general population can perform that same major
life activity. 29 C.F.R. § 1630.2(j)(1)(i)-(ii). In deciding
whether a person is disabled, we consider “the nature
and severity of the impairment, the duration and ex-
pected duration of the impairment, and the permanent
or long term impact or the expected permanent or long
term impact of or resulting from the impairment.” 29
C.F.R. § 1630.2(j)(2)(i)-(iii); Furnish v. SVI Sys., Inc., 270
F.3d 445, 451 (7th Cir. 2001).
Kampmier testified that she cleans her own house, cooks
on a regular basis, plays with her children, takes her
daughter to Gymboree, swims, and does her own grocery
shopping. She has no difficulty brushing her teeth, bath-
No. 06-1788 9
ing, combing her hair or dressing herself. She claims that
in the two weeks following her September 5, 2003 surgery
she could not lift anything and could not drive as often
because she was taking Vicodin. She alleges that she
does not do any gardening or lawn mowing, but does not
allege that her failure to do these activities has anything
to do with her endometriosis. She had two natural preg-
nancies and engaged in sexual intercourse both before
and after her 2003 surgery.
Moreover, Kampmier is not limited in her ability to
work. It is undisputed that she did not take off any time
because of her endometriosis before August 28, 2003,
and she regularly worked 16-hour shifts. Although
endometriosis is undoubtedly painful, in this case it
does not rise to the level of disability under the ADA.
Kampmier’s own testimony leaves no doubt that she is able
to perform the tasks central to most people’s lives, and this
dooms her claim that she is suffering from a disability
cognizable under the ADA. See Rooney, 410 F.3d at 381.
Kampmier cites to a district court case for the proposi-
tion that courts have recognized endometriosis as a
disability. See Erickson v. Bd. of Governors of State Colls.
& Univs. for Ne. Ill. Univ., No. 95 C 2541, 1997 WL 548030(N.D. Ill. Sept. 2, 1997). However, the district court in
Erickson actually found the plaintiff ’s disability to be
infertility, not endometriosis. Id. at *4. Kampmier has
two children by natural means, and thus, Erickson is not
on point.
Kampmier also cites Bragdon v. Abbott in which Chief
Justice Rehnquist, concurring in part and dissenting in
part, stated in dicta that “there are numerous disorders
of the reproductive system, such as . . . endometriosis,
which are so painful that they limit a woman’s ability
to engage in major life activities such as walking or work-
ing.” 524 U.S. 624, 660 (1998). However, whether or not
10 No. 06-1788
a medical condition rises to the level of a disability is to
be made on an individualized case-by-case basis. Sutton
v. United Airlines, Inc. 527 U.S. 471, 483 (1999). Here,
Kampmier has not offered evidence that her endo-
metriosis limited her ability to engage in major life
activities.
Nor has Kampmier offered evidence that she has a
record of a disability. To succeed under this theory,
Kampmier must again show that her impairment sub-
stantially limits one or more major life activities. 29 C.F.R.
§ 1630.2(k); Rooney, 410 F.3d at 381. As demonstrated
above, however, Kampmier did not submit evidence to
this effect. Instead, she claims that she had a long record
of problems with reproduction, including one ectopic
pregnancy, three failed in vitro procedures, and six
failed artificial inseminations. We have held that an
employer’s possession of records detailing injuries and
surgeries does not mean that the employee is statutorily
disabled. Rooney, 410 F.3d at 381. Moreover, Kampmier
does not even claim that Emeritus had a record of her
prior surgeries or procedures.
Finally, Kampmier has not offered evidence suggest-
ing that Emeritus regarded her as disabled. If “the condi-
tion that is the subject of the employer’s belief is not
substantially limiting, and the employer does not believe
that it is, then there is no violation of the ADA under
the ‘regarded as’ prong of the statute.” Mack v. Great
Dane Trailers, 308 F.3d 776, 782 (7th Cir. 2002).
Kampmier has provided no evidence that Emeritus
thought she was unable to perform the functions of her
job as a registered nurse. Emeritus never limited
Kampmier’s responsibilities even after they learned she
had endometriosis. Kampmier suggests that Badell
considered her unable to work because she called Badell
and told her that she was unable to work on August 29 and
September 1. However, Kampmier has not offered evi-
No. 06-1788 11
dence that Badell considered her unable to work because
of an impairment that substantially limits a major life
activity.
b. Similarly Situated Individuals
Under the fourth prong of the prima facie case,
Kampmier is required to identify a similarly situated
individual who received more favorable treatment. How-
ever, Kampmier has not identified any similarly situated
individuals at Emeritus. In fact, she does not mention
the words “similarly situated” with regard to her ADA
claims in either her opening or reply brief. Because
Kampmier is not disabled and failed to identify a simi-
larly situated individual who Emeritus treated differ-
ently, the district court properly granted Emeritus’ motion
for summary judgment.
2. Failure to Accommodate and Retaliation
Because Kampmier has not offered evidence that she
is disabled within the meaning of the ADA, her ADA
failure to accommodate and retaliation claims are without
merit.
B. Title VII
1. Gender Discrimination
Kampmier claims that she offered direct evidence of
sex discrimination. A plaintiff may prove discrimination
using the direct method by establishing either an acknowl-
edgment of discriminatory intent or circumstantial evi-
dence that provides the basis for an inference of inten-
tional discrimination. Phelan v. Cook County, 463 F.3d
773, 779 (7th Cir. 2006). With regard to her direct method
12 No. 06-1788
proof, Kampmier makes one conclusory statement that
her “termination would not have occurred but for her
endometriosis, a condition that is inherently female, just
like pregnancy.” This bare assertion is insufficient to
establish discrimination under the direct method. The
only “proof ” that Kampmier has is the fact that she had
endometriosis and was terminated. Temporal proximity,
alone, is not enough to establish discriminatory intent.
Bilow v. Much Shelist Freed Deneber Ament & Rubenstein,
P.C., 277 F.3d 882, 895 (7th Cir. 2001) (“The mere fact
that one event preceded another does nothing to prove
that the first event caused the second.”).
Kampmier also alleges that she made a showing of sex
discrimination under the indirect method of proof. Under
the indirect method of proof, a plaintiff must demonstrate
that 1) she was a member of a protected class, 2) she
was meeting her employer’s legitimate business expecta-
tions, 3) she suffered an adverse employment action, and
4) her employer treated similarly situated employees
outside of the class more favorably. Ballance v. City of
Springfield, 424 F.3d 614, 617 (7th Cir. 2005). Although
Kampmier satisfies the first three prongs of the indirect
proof test, she fails to identify any similarly situated
male employees who Emeritus treated more favorably.
Kampmier states that “there is no evidence in this case
anyone else was terminated at this time but Kampmier.”
This does not adequately satisfy Kampmier’s burden of
producing a similarly situated individual who Emeritus
treated differently. Accordingly, Kampmier cannot demon-
strate a prima facie case of sex discrimination under
Title VII.
2. Retaliation
Under Title VII, unlawful retaliation occurs when an
employer takes actions that “discriminate against” an
No. 06-1788 13
employee because she has opposed a practice that Title VII
forbids. Burlington N. & Santa Fe Ry. Co. v. White, ___
U.S. ___, 126 S. Ct. 2405, 2410 (2006). The Supreme
Court has held that an employer can effectively retaliate
against an employee by taking actions not directly re-
lated to her employment or by causing her harm outside
the workplace. Id. at 2412. A plaintiff has two means of
proving Title VII retaliation: the direct method and the
indirect method. Logan v. Kautex Textron N.A., 259 F.3d
635, 638-39 (7th Cir. 2001). In support of her claim that
there is direct evidence of Title VII retaliation Kampmier
states that she “established [that] she complained about
sexual harassment by Badell, and subsequently she
was terminated.” Although the second type of evidence
permitted under the direct method is circumstantial
evidence that allows a jury to infer intentional discrim-
ination by the decision-maker, Gorence v. Eagle Food Ctrs,
Inc., 242 F.3d 759, 762 (7th Cir. 1997), timing alone is
insufficient to establish a genuine issue of material fact
to support a retaliation claim. Wyninger v. New Venture
Gear, Inc., 361 F.3d 965, 981 (7th Cir. 2004). Kampmier
claims to have complained to Grover about Badell in
April or May 2003, yet she was not terminated until
September 2003. Kampmier has provided no evidence
that her complaint to Grover about Badell played any
part in the decision to terminate her.
In Stone v. City of Indianapolis, this Court enunciated
a new rule for proving retaliation under the indirect
method. 281 F.3d 640 (7th Cir. 2002). Under Stone, “a
plaintiff must show that after filing the [complaint of
discrimination] only [s]he, and not any similarly situ-
ated employee who did not file a charge, was subjected to
an adverse employment action even though [s]he was
performing [her] job in a satisfactory manner.” Id. at 644.
Kampmier has not identified a similarly situated individ-
ual; thus, her retaliation claim cannot withstand sum-
mary judgment.
14 No. 06-1788
3. Sexual Harassment
Kampmier next claims that the district court erred by
granting summary judgment on her same-sex sexual
harassment claim. To establish a prima facie case,
Kampmier must show that 1) she was subjected to unwel-
come harassment, 2) the harassment was based on her
sex, 3) the harassment was sufficiently severe or perva-
sive so as to alter the condition of her employment and
create a hostile or abusive atmosphere, and 4) there is a
basis for employer liability. Hall v. Bodine Elec. Co., 276
F.3d 345, 354-55 (7th Cir. 2002). Because Kampmier has
raised genuine issues of material fact under each prong
of her prima facie case, the district court erred by grant-
ing summary judgment.
a. Unwelcome Harassment
The first question is whether a reasonable jury could find
that Badell’s allegedly harassing behavior was unwelcome.
Hrobowski v. Worthington Steel Co., 358 F.3d 473, 476 (7th
Cir. 2004). Kampmier testified that Badell’s obscene
comments and constant physical contact made
her uncomfortable. She complained about Badell’s be-
havior on three separate occasions, which was confirmed
by Grover. Grover testified that she complained on numer-
ous occasions to Emeritus’ corporate office, specifically
Lawson, but the response was always that they did not
want to hear about it. Emeritus contends that Kampmier
engaged in sexual banter herself; however, it did not
point to any evidence in the record that Kampmier encour-
aged the alleged behavior or welcomed it in anyway.
Accordingly, Kampmier has raised a genuine issue of
material fact about whether Badell subjected her to
unwelcome harassment.
No. 06-1788 15
b. Because of Sex
Emeritus argues that Badell’s harassment was not
because of Kampmier’s sex, because Badell harassed both
sexes, making her an “equal opportunity harasser.”
Holman v. Ind. Dept. of Transp, 211 F.3d 399, 403 (7th Cir.
2000). Emeritus introduced evidence that Badell had
grabbed two male employees’ buttocks and that Badell
and a male employee made plans to have dinner one
night. After the male employee decided not to meet with
Badell, she said to him, “I was waiting and ready for you.
If you did not want it and did not want to be bothered by
me, then you should have said something.” The male
employee testified that he assumed this was a sexual
proposition.
However, the harassment that Kampmier allegedly
endured was far more severe and prevalent than the
alleged conduct endured by the male employees. Kampmier
alleged that Badell made constant references to female
employees at the Loyalton, made comments about their
“boobs,” and told the women at the Loyalton that she could
turn any woman gay. Yvonne Peterson, another Emeritus
employee, also testified that she heard Badell claim to be
able to turn any woman gay. At the least, Kampmier has
raised a genuine issue of material fact as to whether
Badell’s alleged harassment was because of Kampmier’s
sex.
c. Offensive Harassment
To prove that her work environment was hostile,
Kampmier must demonstrate that it was both objectively
and subjectively offensive. Rhodes v. Ill. Dep’t of Transp.,
359 F.3d 498, 505 (7th Cir. 2004). Courts look to several
factors to determine whether alleged harassment is
objectively offensive, including the frequency of the
16 No. 06-1788
conduct; its severity; whether it was physically threaten-
ing or humiliating, or a mere offensive utterance; and
whether it unreasonably interfered with the alleged
victim’s work performance. Hostetler v. Quality Dining,
Inc., 218 F.3d 798, 806-07 (7th Cir. 2000). The “occasional
vulgar banter, tinged with sexual innuendo of coarse or
boorish workers” generally does not create a work environ-
ment that a reasonable person would find intolerable.
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995).
This Court has on many occasions distinguished be-
tween harassing and merely objectionable conduct. See,
e.g., Hilt-Dyson v. City of Chi., 282 F.3d 456, 463-64 (7th
Cir. 2002) (holding that plaintiff ’s allegations that a
supervisor rubbed her back, squeezed her shoulder and
stared at her chest during a uniform inspection while
telling her to raise her arms and open her blazer were
isolated incidents that, even when taken together, did not
create a sufficient inference of a hostile work environ-
ment); Patt v. Family Health Sys., Inc., 280 F.3d 749, 754
(7th Cir. 2002) (holding that plaintiff ’s complaints of eight
gender-related comments during the course of her em-
ployment, including that “the only valuable thing to a
woman is that she has breasts and a vagina,” was insuf-
ficient to demonstrate a hostile work environment);
Adusumilli v. City of Chi., 164 F.3d 353, 361-62 (7th Cir.
1998) (holding that plaintiff ’s complaints of teasing;
ambiguous comments about bananas, rubber bands, and
low-neck tops; staring and attempts to make eye contact;
and four isolated incidents where a co-worker briefly
touched her arm, fingers, or buttocks did not constitute
sexual harassment). In short, minor or isolated incidents
are generally insufficient to rise to the level of objectively
offensive conduct.
By contrast, sustained physical contact can raise other-
wise merely objectionable conduct to the level of objectively
No. 06-1788 17
offensive conduct. For instance, in King v. Board of
Regents of University of Wisconsin System, 898 F.2d 533,
535 (7th Cir. 1990), this Court concluded that the defen-
dant’s conduct rose to an objectionable level when he
followed the plaintiff into a bathroom at an office holi-
day party, telling her that he “had to have her” and that
“he would have her.” Despite the plaintiffs protests, the
defendant forcibly kissed and fondled her, stopping when
the plaintiff ’s boyfriend came into the bathroom. Id.Similarly, in Gentry v. Export Packaging, Co, 238 F.3d
842 (2001), this Court held that the defendant’s constant
physical contact with the plaintiff to be objectively offen-
sive. In that case, the defendant invited the plaintiff
implicitly to have sex with him and showed her arguably
“off color” pictures. Moreover, the defendant hugged the
plaintiff “with two-armed embraces” almost every other
working day for two months. Id. at 850-51.
Here, Kampmier estimated that during her employment
at the Loyalton, Badell hugged her fifty to sixty times,
jumped in her lap ten times, touched her buttocks thirty
times, and made the comment that she could turn any
woman gay ten to twelve times. Kampmier also alleged
that Badell stated that she “make[s] Carol (her girlfriend)
come every night within the first five minutes” and also
commented that she could perform the same act on
Kampmier. Based on the sustained nature of the physical
contact, combined with Badell’s sexually explicit remarks,
a jury reasonably could find Badell’s comments and her
physical contact with Kampmier objectively offensive.
It is not enough for Kampmier to establish the objec-
tively offensive nature of Badell’s harassment; she must
also raise a genuine issue of material fact that the harass-
ment was subjectively offensive. Rhodes, 359 F.3d at 505.
The district court held that “the undisputed overwhelm-
ing evidence established that Kampmier did not per-
ceive her work environment to be hostile until after she
18 No. 06-1788
received her termination letter in early September.”
Kampmier v. Emeritus Assisted Living, et al., No. 04 C
50399, slip op. at 2 (N.D. Ill. Feb. 15, 2006).
The parties agree that Kampmier allowed Badell’s lover
to babysit her daughter in Badell’s home, visited Badell
in the hospital after Badell’s surgery, gave Badell a card,
spent time with Badell’s son, and on at least one occasion
provided medical assistance to Badell’s mother. This
evidence seems to belie Kampmier’s claim that she felt
harassed by Badell. Nonetheless, Kampmier did com-
plain to three different supervisors as required by Emeri-
tus’ attendance policy. She repeatedly told Badell to “knock
it off ” when Badell engaged in the alleged harassment.
When Badell did not stop her behavior, Kampmier com-
plained to Grover. Finally, after Grover left (apparently
because of Badell’s behavior), Kampmier complained to
Stine, Grover’s replacement.
In Gentry, this Court held that the plaintiff provided
sufficient evidence that the alleged harassment was
subjectively offensive, where the plaintiff found it hard to
concentrate on her work because of the defendant’s
actions. She hated her job and often cried when she
went to work. A coworker saw or heard the plaintiff cry on
several different occasions. The plaintiff also sought
medical care and was treated for anxiety and depression
caused by the oppressive workplace environment. 238
F.3d at 851. While Kampmier has not offered evidence
that she cried before coming to work or sought medical
care, the Supreme Court has emphasized that “Title VII
comes into play before the harassing conduct leads to a
nervous breakdown.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 22 (1993). Kampmier’s repeated complaints regarding
Badell’s harassment are sufficient to raise a genuine
issue of material fact as to whether she found Badell’s
harassment subjectively offensive.
No. 06-1788 19
d. Employer Liability
Finally, Kampmier must prove that there is a basis for
employer liability. An employer may be vicariously
liable to a victimized employee for an actionable hostile
environment created by a supervisor with immediate (or
successively higher) authority over the employee. Parkins
v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th
Cir. 1998). 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. R. Civ. P. 8(c);
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
The defense comprises two necessary elements: 1) that
the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and
2) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise. Id.No affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible em-
ployment action, such as discharge, demotion, or undesir-
able reassignment. Id.In this case, Badell’s alleged harassment did not culmi-
nate in Kampmier’s termination. As discussed above,
Kampmier simply provides no evidence that Badell’s
alleged harassment had anything to do with her termina-
tion. As a result, Emeritus may raise an affirmative
defense to Kampmier’s allegations of harassment. Grover
testified that she contacted Lawson several times and
complained about “certain things Lena was doing that
negatively impacted the workplace . . . .” She also testified
that Lawson “did not want to hear about it.” In addition,
Kampmier testified that Badell was not disciplined dur-
ing Kampmier’s employment, even though Kampmier
complained to three different individuals about the
harassment. This evidence is sufficient to create a genu-
20 No. 06-1788
ine issue of material fact with regard to whether
Emeritus exercised reasonable care to prevent and cor-
rect Badell’s behavior.
C. ERISA
Finally, Kampmier claims that she raised an issue of
fact as to whether her termination was based on her
eligibility for ERISA benefits. To recover under ERISA
§ 510, Kampmier must demonstrate that 1) she is a
member of an ERISA plan, 2) she was qualified for the
position, and 3) she was discharged under circumstances
that provide some basis for believing that Emeritus
intended to deprive her of benefits. Grottkau v. Sky
Climber, Inc., 79 F.3d 70, 73 (7th Cir. 1994). Both parties
agree that Kampmier was a member of an ERISA plan
and that she was qualified for her position. Thus, the
only issue is whether Kampmier was discharged under
circumstances that provide some basis for believing that
Emeritus intended to deprive her of benefits.
Kampmier claims that although her termination letter
was dated September 8, 2003, her COBRA election docu-
ment stated the “event date” as August 28, 2003, the same
day that Kampmier sought treatment for her endo-
metriosis. As a result, Kampmier claims that Emeritus
rejected thousands of dollars of Kampmier’s medical
bills. However, Emeritus explains that it back-dated
Kampmier’s termination date because under the terms of
its plan with Employees Benefit Management Systems, a
third party administrator, coverage for Emeritus’ employ-
ees’ medical, prescription, dental and vision insurance
ends on the last day of the pay period on or after the
last day worked. Because Kampmier does not challenge
Emeritus’ explanation, the district court properly en-
tered summary judgment in Emeritus’ favor.
No. 06-1788 21
III. CONCLUSION
For the above stated reasons, we AFFIRM in part and
REVERSE in part the judgment of the district court. We
REMAND Count V.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-2-07