Bernier, Todd P. v. Morningstar Inc ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1617
TODD P. BERNIER,
Plaintiff-Appellant,
v.
MORNINGSTAR, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6924—Blanche M. Manning, Judge.
____________
ARGUED NOVEMBER 7, 2006—DECIDED JULY 17, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. In this case, Todd Bernier thought
that he was the victim of employee-on-employee, same-
sex harassment at the workplace of Morningstar, Inc., an
investment research firm. He claimed that Morningstar’s
failure to prevent his fellow employee, Christopher Davis
(who is gay), from sexually harassing him amounted to
unlawful sex discrimination. Bernier, however, did not
alert Morningstar to his concerns through the complaint
procedure Morningstar has adopted. Instead, he sent an
anonymous instant message to Davis, who was alarmed
enough by it to report it to company management. Human
Resources personnel traced the message to Bernier and by
2 No. 06-1617
the following Monday, it was Bernier who found himself
out of a job. Bernier sued Morningstar under Title VII, but
the district court granted the firm’s motion for summary
judgment, on the ground that there is no basis for em-
ployer liability on these facts, nor does any evidence
suggest retaliation. We agree with that assessment and
affirm.
I
Bernier began his career at Morningstar in late 1999 as
an equity analyst; by 2002, he held the position of associ-
ate director of equity research. Bernier alleges that in
January 2003, Davis (a mutual fund analyst) started
staring at him whenever the two passed in the hallway or
when Davis was near Bernier’s work area. Bernier experi-
enced increasing discomfort with Davis’s behavior. About
a year later, on Friday, January 23, 2004, Bernier noticed
Davis taking “an overt, purposeful and glaring look” at
Bernier’s penis while they were both standing at the
urinals in the men’s bathroom on their floor. Bernier knew
that Davis was gay—he had learned this in 2003, some
time after Davis brought a male date to the company’s
2002 Christmas party—but he was not aware until this
litigation commenced that Davis had a “lazy” left eye
that sometimes made it appear that he was “looking off
at something” when conversing. Bernier assumed that
Davis was sexually interested in him because other gay
men that Bernier knows do not stare at him.
Although Bernier felt sexually harassed by Davis, he
did not take advantage of Morningstar’s sexual harass-
ment complaint procedure to notify the company of Davis’s
behavior. Instead, he sent Davis an anonymous instant
message through a little-used internal system. The
message, which popped up on Davis’s computer without
warning, said, “Stop staring! The guys on the floor don’t
No. 06-1617 3
like it.” Davis, under the impression that he was being
harassed for being gay, promptly notified Morningstar’s
Human Resources department. The following Monday,
Human Resources personnel and Bernier’s supervisors
confronted him with the message; he was fired a few
hours after he denied having sent it.
Davis (but not Bernier) had followed exactly the path
recommended in Morningstar’s policy prohibiting sexual
harassment, which had been in effect for the entire time
while Bernier was employed at the firm. The policy
provided a simple procedure for notifying the company
of a complaint: The employee who believed that he or she
had been harassed was directed to “discuss it immediately
with your manager or the Human Resources department.”
It further noted, “This complaint procedure is a critical
component of Morningstar’s efforts to maintain a work-
place free of harassment. Employees are strongly urged to
utilize it, and are assured that the company will not
retaliate against them for doing so.”
Morningstar employees were given further information
on whom to notify in the event of harassment in a docu-
ment they received entitled “Managing to Prevent Harass-
ment—Participant’s Guide.” The Guide posed the hypo-
thetical question, “To whom should an employee at your
company complain about harassment?” The response it
offered was to “[l]ook at company’s policy to determine
the answer. The answer is not a co-worker or the harasser.
Complaints to co-workers do not put the company on
notice of the harassment. Complaints to the harasser are
encouraged, but cannot be required.”
Matters might have been different if Bernier had taken
the “encouraged” path and confronted Davis directly
with his accusation. But he neither did that, nor did he
discuss the problem with Human Resources or his supervi-
sor, Pat Dorsey. As we noted earlier, he chose instead to
4 No. 06-1617
act anonymously, using a little-used internal system to
send an instant message that appeared on Davis’s com-
puter. Davis was particularly surprised by the message
because it was the first time he had ever seen one sent
through the company’s system. Davis believed that the
content of the message and the lengths to which the
sender went to ensure that it was untraceable reflected
anti-gay animus.
In fact, Bernier underestimated the resources of the
company’s information technology department. Davis’s
supervisor, Emily Hall, showed him how to print the
instant message and suggested that he contact Human
Resources. Davis followed that advice and showed the
message to Jane Fitzpatrick, who was the Human Re-
sources representative responsible for his unit at
Morningstar. Fitzpatrick had the network administrator
investigate the source of the message, which he con-
cluded was Bernier’s computer. After Bernier left for the
evening, Fitzpatrick confirmed that the message had been
sent from his machine. Fitzpatrick then told Bernier’s
supervisor, Dorsey, and Haywood Kelly, Dorsey’s super-
visor and Morningstar’s editor-in-chief, about the incident.
On the next business day, Monday, January 26,
Fitzpatrick, Dorsey, and Kelly met with Bernier in a
conference room. They showed him the message and
asked him whether he had sent it. Bernier denied having
done so. (The parties dispute whether Bernier denied
knowing anything about the message, but we need not
decide who is right.) Following his denial, Bernier was
told he could go. Fitzpatrick, Dorsey, and Kelly concluded
that Bernier should be terminated, and Fitzpatrick
subsequently obtained the approval of Morningstar’s
director of Human Resources, Cathy Rezy, and the presi-
dent of the Retail Business Unit (the strategic business
unit in which Bernier worked), Cathy Odelbo, to do so.
No. 06-1617 5
Around 4:00 p.m., Fitzpatrick and Dorsey met with
Bernier and gave him the bad news.
Only then did Bernier admit that he had sent the
message and offer an explanation for his actions to
Fitzpatrick and Dorsey. Bernier claims that he had
wanted to explain himself earlier in the day and had
attempted to speak with Kelly and Dorsey, but that they
both referred him to Fitzpatrick. His effort to reach
Fitzpatrick was unsuccessful because she was away from
her desk. Following his termination, Bernier filed a
complaint with the Equal Employment Opportunity
Commission, received his right-to-sue letter, and filed
this action under Title VII, 42 U.S.C. § 2000e-5(f )(1).
II
Our review of the district court’s summary judgment
in Morningstar’s favor is de novo. Hall v. Bodine Elec. Co.,
276 F.3d 345, 352 (7th Cir. 2002). We take the facts in
the light most favorable to Bernier, but we will affirm if
there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 316,
322 (1986).
A. Sexual harassment claim
Bernier’s first claim is that he was subjected to a pat-
tern of sexual harassment in violation of Title VII, 42
U.S.C. § 2000e-2. Since 1986, the Supreme Court has
recognized that Title VII’s prohibition against discrim-
ination in employment on the basis of sex encompasses
sexual harassment that is sufficiently severe or pervasive
to alter the employee’s terms or conditions of employment.
See Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57 (1986);
6 No. 06-1617
see also Pennsylvania State Police v. Suders, 542 U.S. 129(2004); Faragher v. City of Boca Raton, 524 U.S. 775(1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998);
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75(1998); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
Oncale clarified that the statute reaches same-sex harass-
ment. See 523 U.S. at 79-80.
Bernier’s theory is that Morningstar subjected him to
a hostile workplace environment because of Davis’s sexual
interest in him. “One of the ways in which Title VII’s
prohibition against sex discrimination in the terms and
conditions of employment may be violated is through
sexual harassment that is either severe or pervasive
enough to create an abusive working environment.”
Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir.
2007). In deciding whether sexual harassment has
reached the point of affecting terms and conditions of
employment, we ask whether the complaining person has
been subjected to objectively offensive behavior, whether
there is a link between that treatment and his or her
protected characteristic (here, sex), and whether the
conditions are offensive from a subjective standpoint.
Id.; see also Parkins v. Civil Constructors of Ill., Inc., 163
F.3d 1027, 1032 (7th Cir. 1998).
This, however, is not enough to support a finding of
employer liability. “Even if a plaintiff . . . can establish a
hostile environment based on h[is] sex, it does not neces-
sarily follow that h[is] employer is liable to h[im] under
Title VII.” Perry v. Harris Chernin, Inc., 126 F.3d 1010,
1013 (7th Cir. 1997). Instead, where, as here, plain-
tiff attempts to hold the employer liable for the actions
of a co-worker, “the plaintiff bears the burden of showing
that the employer knew of the problem (usually though not
always this requires the employee to show that a com-
plaint was made) and that the employer did not act
No. 06-1617 7
reasonably to equalize working conditions once it had
knowledge.” Dunn v. Washington County Hospital, 429
F.3d 689, 691 (7th Cir. 2005). See also Doe v. Oberweis
Dairy, 456 F.3d 704, 716 (7th Cir. 2006) (holding that if
the harasser “is a coworker, the employer is liable only
if it failed to have and enforce a reasonable policy for
preventing harassment, or in short only if it was negligent
in failing to protect the plaintiff from predatory cowork-
ers”). As Dunn pointed out, this is a form of direct, not
vicarious, liability. 429 F.3d at 691. Accordingly, “[a]n
employer satisfies its legal duty in coworker harassment
cases ‘if it takes reasonable steps to discover and rectify
acts of . . . harassment of its employees.’ ” Cerros v. Steel
Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005)
(quoting Parkins, 163 F.3d at 1032).
We have recognized on many occasions that an em-
ployer’s “notice or knowledge of the harassment is a
prerequisite for liability.” Parkins, 163 F.3d at 1035 (citing
Perry, 126 F.3d at 1014). This requirement can in certain
circumstances present an unfortunate paradox for plain-
tiffs: while they have “no duty under the law to complain
about discriminatory harassment,” Perry, 126 F.3d at
1014, if they do not complain then it is possible (perhaps
even likely) that the employer will have no knowledge
of the problem and hence no duty to act. This possibility
is particularly acute when the individual who has been
harassed is the only source of information, as opposed to
circumstances where a complaint comes from someone
other than the plaintiff or where the “sheer pervasiveness”
of harassment might support an inference of employer
knowledge. Zimmerman v. Cook County Sheriff ’s Dep’t, 96
F.3d 1017, 1018 (7th Cir. 1996). To avoid summary
judgment, Bernier therefore had to present evidence
showing that he “gave the employer enough information
to make a reasonable employer think there was some
8 No. 06-1617
probability that []he was being sexually harassed.” Id.
at 1019.
Bernier concedes that he did not use Morningstar’s
established sexual harassment policy. (He explained in
his deposition that he did not want to discuss the be-
havior with either the Human Resources department or
his supervisor. Part of his motivation seems to have
been his erroneous belief that the instant message could
not be printed or forwarded and thus his anonymity
would be preserved.) He argues, however, that Morning-
star indirectly received actual notice of Davis’s alleged
harassment of him. We confess that his line of reasoning
strikes us as tortuous, but we set it out in the interest of
completeness. Bernier argues that a reasonable fact-
finder could conclude that after Fitzpatrick saw the copy
of the instant message that Davis gave him and manage-
ment figured out that Bernier was the sender, the firm as
a whole must have realized that Bernier thought that
Davis was sexually harassing him. The idea that the
message “Stop staring! The guys on the floor don’t like it”
somehow communicated all of this to Morningstar is too
far-fetched to accept. Nothing in that message immedi-
ately calls sexual harassment to mind, and a message on
behalf of “the guys” says little or nothing about whom the
speaker represents or how strong the dislike may be.
While this would be true even had Bernier conveyed his
antipathy to the staring to management directly, it ap-
plies with even greater force given the way that Fitz-
patrick received the message. Davis gave it to her because
he thought that he was the target of harassment because
of his sex and sexual orientation. As Fitzpatrick, Dorsey,
and Kelly all testified in their depositions, they under-
stood the message to reflect animus toward either
Davis’s sexual orientation or perhaps his lazy eye. In this
context, Morningstar’s focus was on ensuring that the
work environment was not hostile for Davis. Bernier
acknowledges this in his Rule 56.1 statement of facts,
No. 06-1617 9
where he notes that Rezy, the head of Morningstar’s
Human Resources department, was concerned about
the content of the message and the “possible violation of
Defendant’s anti-harassment policy, if the email was
intended to harass.” Once Davis put Morningstar on notice
that he felt sexually harassed, the firm was obligated to
take reasonable steps to investigate, and if necessary to
remedy the harassment. By denying that he sent the
message—the one clear opportunity he had for ensuring
that Morningstar knew that he was (very) indirectly
complaining about sexual harassment—Bernier rein-
forced his supervisors’ conclusions.
Bernier also argues that the facts, interpreted favorably
to him, show that Morningstar had constructive notice of
Davis’s alleged harassing behavior. He claims that after
the initial meeting, at which he lied, he wanted to explain
to Kelly, Dorsey, and Fitzpatrick that he felt harassed. He
tried to speak with Kelly and Dorsey and instead was
referred to Fitzpatrick. That effort was frustrated when
he could not locate her during the time between the
meeting and his firing. In his mind, this amounted to the
managers’ purposely making themselves unavailable
and preventing him from making effective use of the
formal complaint process. Once again, we are confident
that no rational finder of fact could squeeze that inter-
pretation out of these facts. Bernier failed to show, in his
opposition to the summary judgment motion, that
Morningstar had either actual or constructive notice of
Davis’s alleged harassment.
Since there is no basis for employer liability on the
sexual harassment claim, we have no need to examine the
merits of Bernier’s charge. It appears, however, that he
would have an uphill battle there, too, as Morningstar
would undoubtedly claim that it is undisputed that it
did not know about the alleged harassment before Janu-
ary 23, 2004, and that the minute it tried to investigate
the charge, Bernier lied to the responsible managers.
10 No. 06-1617
B. Retaliation claim
That brings us to Bernier’s second claim, which is that
Morningstar retaliated against him by firing him after
he complained about Davis’s sexual harassment. Title VII
protects individuals who complain to their employers
about sexual harassment from retaliation on that basis.
42 U.S.C. § 2000e-3. The fact that his sexual harassment
claim was properly dismissed has no impact on this
claim, as a “plaintiff need not prevail on h[is] Title VII
claim or have opposed an action that in fact violated Title
VII in order to win on a retaliation claim.” Fine v. Ryan
Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002).
Like other Title VII claims, retaliation claims may be
approached under either a direct or an indirect method
of proof:
The plaintiff in a retaliation case should have two (and
only two) distinct routes to obtaining/preventing
summary judgment. One . . . is to present direct
evidence (evidence that establishes without resort to
inferences from circumstantial evidence) that he
engaged in protected activity (filing a charge of dis-
crimination) and as a result suffered the adverse
employment action of which he complains. If the
evidence is uncontradicted, the plaintiff is entitled to
summary judgment. If it is contradicted, the case
must be tried unless the defendant presents unrebut-
ted evidence that he would have taken the adverse
employment action against the plaintiff even if he
had had no retaliatory motive; in that event the
defendant is entitled to summary judgment because
he has shown that the plaintiff wasn’t harmed by
retaliation.
***
The second route to summary judgment, the adapta-
tion of McDonnell Douglas [Corp. v. Green, 411 U.S.
No. 06-1617 11
792 (1973)] to the retaliation context, requires the
plaintiff to show that after filing the charge only he,
and not any similarly situated employee who did not
file a charge, was subjected to an adverse employ-
ment action even though he was performing his job
in a satisfactory manner. If the defendant presents
no evidence in response, the plaintiff is entitled to
summary judgment. If the defendant presents unre-
butted evidence of a noninvidious reason for the
adverse action, he is entitled to summary judgment.
Otherwise there must be a trial.
Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640,
644 (7th Cir. 2002).
Bernier says that he is proceeding only under the
indirect method of proof, although in this case the choice
makes no difference. Either way, he needed to show that
he engaged in statutorily protected activity. Once again,
his cryptic and anonymous instant message is not enough.
In order to have engaged in statutorily protected expres-
sion, Bernier must genuinely have believed that he had
been harassed and actually opposed the alleged sexual
harassment by communicating his good faith belief to
Morningstar. See Fine, 305 F.3d at 752 (“All that is
required is that ‘[he] reasonably believed in good faith
that the practice [he] opposed violated Title VII.’ ” (cita-
tion omitted)). This combination of subjective belief and
objective notification means that “[a]n employee can
honestly believe [he] is the object of discrimination, but
if [he] never mentions it, a claim of retaliation is not
implicated, for an employer cannot retaliate when it
is unaware of any complaints.” Sitar v. Indiana Dept. of
Transp., 344 F.3d 720, 727 (7th Cir. 2003). As a result,
Bernier’s failure to notify Morningstar of the alleged
harassment dooms his retaliation claim as well.
Even if Bernier had established a prima facie case
for retaliation, Morningstar has articulated two non-
12 No. 06-1617
invidious reasons for firing him—his improper use of
the messaging system to send the anonymous instant
message and his lie in the meeting when he was asked
about the message. Bernier may be correct that any
response he gave to the question that Fitzpatrick, Dorsey,
and Kelly asked might have led to his firing, but we do not
see how that fact could establish that Morningstar was
engaged in impermissible discrimination. Morningstar
had the right to question him about the message, and it
had the right to terminate him for lying. “While Title VII
protects victims of sexual harassment from being termi-
nated in retaliation for reporting harassment, an em-
ployee’s complaint of harassment does not immunize h[im]
from being subsequently disciplined or terminated for
workplace behavior.” Hall, 276 F.3d at 359. As a result, his
retaliation claim was also correctly dismissed.
* * *
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-17-07