Houston, Jessica v. St. Joseph Regional ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2197
JESSICA M AGYAR,
Plaintiff-Appellant,
v.
S AINT JOSEPH R EGIONAL M EDICAL C ENTER,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:05-CV-0452—Robert L. Miller, Jr., Chief Judge.
A RGUED N OVEMBER 7, 2007—D ECIDED S EPTEMBER 12, 2008
Before P OSNER, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Jessica Magyar (to whom we refer
in this opinion using her former last name of Houston) lost
her job at Saint Joseph Regional Medical Center (“the
Hospital”) after she complained about perceived sexual
harassment. She sued the Hospital on the theory that it
had violated the anti-retaliation provision of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Reason-
ing that the evidence Houston submitted in response to
2 No. 07-2197
the Hospital’s summary judgment motion could not
support a finding of causation, or in the alternative
could not show that the Hospital’s stated motive for
terminating her was pretextual, the district court granted
summary judgment to the Hospital. If we were the ulti-
mate trier of fact, we would find this to be a close case.
We are not, however, and we conclude that the record
viewed in the light most favorable to Houston would
permit her to prevail. We therefore reverse and remand
for further proceedings.
I
While attending college, Houston took a position on
April 19, 2004, as a part-time assistant scheduler in the
Hospital’s surgical department. She was classified as a
PRN employee, which means that her work hours de-
pended on the needs of the Hospital; she did not need to
conform to regular hours, did not receive benefits, and was
not required to accept work hours when offered. The
equivalent of a full-time surgery scheduler position was
covered by three people: one regular part-time employee
(Carmen Sanchez) who worked half-time, and two PRN
employees (Houston and Mikisha Williams, also a
college student) who together took up the other half of the
hours.
One day, Dale Carl, a 52-year-old male co-worker, came
into a crowded Hospital lounge where there were no free
chairs. Plopping down on 22-year-old Houston’s lap, he
whispered “You’re pretty” into her ear. Houston was not
amused. This happened some time between her April
No. 07-2197 3
hiring date and late July or early August. That was not
the first instance of Carl’s misbehavior. Houston testified
at her deposition that approximately one week before
that incident, Carl had also sat on her lap and whispered
a comment about her appearance. She explained that
“I was hoping it was just a one-time occurrence, and
I didn’t—I didn’t really—that was my first real job and
I really didn’t know what to do. And I had to check to see,
you know, like what are the exact standards in the
work force. And then I knew once he did that the
second time that I had to talk to her because it was not a
one-time occurrence.” When Carl repeated the same
move, Houston concluded that it was time to take action.
Around the first week of August, Houston reported
the second incident to Pam Goddard, her boss. During
this meeting, Goddard expressed reluctance to speak to
Carl about the incident if Houston was unwilling to file
a formal complaint. In response, Houston revealed that
she had been a victim of sexual assault in the past and
therefore she was sensitive to such behavior. Goddard
agreed to speak to Carl and apparently did so later that
day. Although the dissent asserts that Carl “apologized
profusely,” nothing in the record shows that he ever
said a word to Houston or that she even heard that he
had apologized to Goddard. The reason is because
Goddard actually told him not to apologize to Houston
when he asked whether he should do so.
The dissent contends that Goddard dealt with the
sexual harassment complaint effectively, as no further
incidents took place. But that is only half the story; from
4 No. 07-2197
Houston’s perspective, there was no evidence that any-
thing (effective or otherwise) had happened. Goddard
took no steps whatsoever to communicate with Houston
regarding any resolution of her complaint, and so a trier
of fact could infer that Houston (especially given the
earlier incident of sexual assault) was left in fear that at
any moment there might be a third incident. Goddard
does not even allege that she followed up with Houston;
her deposition testimony reveals that she simply assumed
that the matter had been put to rest: “I talked to Mr. Carl
that afternoon regarding Ms. [Houston]’s complaint.
I heard nothing more from Ms. [Houston] regarding
Mr. Carl and believed the issue had been resolved to
Ms. [Houston]’s satisfaction, as I had spoken to Mr. Carl,
as Ms. [Houston] requested, and no further incidents
had occurred.”
Houston had every reason to wonder whether any
action had been taken at all; she probably attributed the
lack of further incidents to her own attempts to avoid Carl.
When asked in her deposition whether Carl did anything
that Houston considered harassing in nature after Hous-
ton’s conversation with Goddard, Houston testified as
follows: “No. But I also tried to stay as much away
from any contact with him. You know, I tried to avoid any
of the conversations that I—you know, I tried to keep
anything I had with him short.” Although the dissent
asserts that Houston sent an email to Goddard after the
meeting to express satisfaction with Goddard’s handling
of the complaint (“the smiley-face email”), this email was
sent on July 16, weeks before the meeting in question,
and did not pertain to the Carl incident.
No. 07-2197 5
Therefore, on September 17, having received no follow-
up information from Goddard about the resolution of the
incident, Houston complained about Goddard’s failure
to respond to her complaint to the Hospital’s General
Counsel and Organizational Integrity Officer, Robert
Wade. Sometime during the following week, Wade con-
tacted Human Resources (“HR”), and HR instructed
Goddard to meet with Houston again. On September 24,
Houston and Goddard met twice; at some point, the
discussion turned from the incident with Carl to the
question why Houston felt the need to approach Wade.
The next day, Goddard emailed Wade to report that
Houston’s issues “are resolved.”
Goddard was mistaken. On September 26 (nine days
after her first contact with Wade), Houston sent Wade a
formal letter addressed “To Whom It May Concern,”
complaining about the manner in which Goddard had
handled her initial complaint and the new fact that Hous-
ton’s “job had been posted on the job listings” without
notifying her, in apparent “retaliation for me turning
her [Goddard] in.” Houston’s affidavit and her Septem-
ber 26 letter both indicate that she considered it inap-
propriate that she had to reveal her traumatic past in
order to prod Goddard into action. On October 7,
Goddard submitted to HR a job requisition form to restruc-
ture the position covered by PRN employees Houston
and Williams into a single regular half-time position
with benefits. The dissent defends Goddard’s decision to
expend budget funds on the payment of benefits by
assuming that, if Goddard did not use these funds, they
would disappear in the next budget cycle. There is no
support in the record for this factual assumption (which
6 No. 07-2197
interprets the record in the light most favorable to the
defendant Hospital), nor for assuming that this fact,
even if true, motivated Goddard’s decision.
In any event, Houston was unable to bid for the new
position because it conflicted with her class schedule. On
October 20, the Hospital gave the job, which now
included benefits, to Williams, who was the only person
to bid for it since she had dropped out of college and freed
up her schedule. Two days later, Goddard told Houston
that she remained classified as a PRN and that she
would be called if she was needed.
Goddard’s statement turned out to be only half true.
Shortly after she told Houston that she was still a PRN,
Goddard told Williams and Sanchez to let her know if
they needed someone to cover for them, rather than
calling Houston. The Hospital asserts that the reason for
this instruction was Goddard’s business policy of
covering shifts with regular employees whenever it is
possible to do so without paying overtime, rather than
using PRNs. Between October 22, 2004, and April 26, 2005,
Houston was not called in to work at the Hospital a
single time. On April 26, 2005, she received notice that she
had been formally terminated because she did not work
enough hours as a PRN employee during the relevant
period; on the Termination Form submitted to HR effecting
this action, Goddard marked “no” in the box asking
whether the employee was eligible for rehire.
Believing that the Hospital had retaliated against her
for complaining about Carl’s harassment and for com-
plaining about its failure adequately to address that
harassment, Houston filed this suit under Title VII. The
No. 07-2197 7
district court granted summary judgment to the Hospital,
finding that Houston had failed to establish a prima facie
case of retaliation, and that she failed to show that the
Hospital’s assertion that it was planning to restructure
her job was pretextual.
II
Before turning to Houston’s arguments on appeal, we
should address a procedural point that the Hospital has
raised in support of its judgment. In the district court, the
Hospital moved to strike Houston’s affidavit because it
was unsigned, bearing instead solely an “electronic signa-
ture.” The district court denied the motion because Hous-
ton submitted another affidavit on which her actual
signature was added near the electronic signature. On
appeal, the Hospital asks this court to disregard Houston’s
affidavit and thus to evaluate Houston’s response to its
summary judgment without that information.
A district court’s ruling on a motion to strike an
affidavit is reviewed for an abuse of discretion. Mannoia v.
Farrow, 476 F.3d 453, 456 (7th Cir. 2007). The Hospital
was not prejudiced by the initial defect in the affidavit
(to the extent that it was a defect at all in a world where
electronic signatures are regularly honored, see, e.g.,
Electronic Signatures in Global and National Commerce
Act, 15 U.S.C. § 7001 (requiring recognition of electronic
signatures), Uniform Electronic Transactions Act, and
Indiana Electronic Digital Signature Act, Burns Ind. Code
Ann. § 5-24-3-1). In any event, Houston immediately
substituted a copy with a traditional signature. The
8 No. 07-2197
district court did not abuse its discretion in denying
Hospital’s motion to strike. Houston’s affidavit is thus
properly part of the record before us.
III
The only issue remaining in this appeal is whether
the district court erred in granting summary judgment for
the Hospital. We review a grant of summary judgment
de novo. Sound of Music Co. v. 3M, 477 F.3d 910, 914 (7th
Cir. 2007).
A claim of retaliation under Title VII may be established
under either the direct method or the indirect bur-
den-shifting method, which is an adaptation of the
familiar framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Stone v. City of Indianapolis
Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). Houston
has decided to rely on the direct method of proof. To
establish a prima facie case this way, she must “present
direct evidence of a statutorily protected activity, an
adverse employment action, and a causal connection
between the two.” Haywood v. Lucent Techs., Inc., 323 F.3d
524, 531 (7th Cir. 2003). We consider each element in turn.
A. Statutorily protected activity
The Hospital argues that Houston was not engaging
in statutorily protected activity because, even by
Houston’s allegations, the retaliation was a response to
her approaching Wade to complain about Goddard’s
complaint-management skills (“in retaliation for me
No. 07-2197 9
turning her in”), not her earlier approach to Goddard to
complain about Carl’s alleged sexual harassment.
The district court implicitly rejected this argument,
stating that “[e]ven though the Hospital is correct that Ms.
Houston’s complaint to Mr. Wade about Ms. Goddard
can’t be seen as a complaint about sexual harassment
or discrimination, Ms. Houston’s complaint about inap-
propriate touching by Mr. Carl clearly falls within
Title VII protection.” In support of her position, Houston
cites the district court’s decision in Johnson v. County of
Nassau, 480 F. Supp. 2d 581, 602 (E.D.N.Y. 2007). The
court there found that the plaintiff, who was Director of
the Office of Diversity, had stepped outside his job duties
and therefore engaged in protected activity, because in
addition to raising employee complaints of discrimina-
tion “he complained that Defendants were not fulfilling
their duties under Title VII in properly investigating
these complaints.” While that case is obviously not
binding on this court and the facts are somewhat different,
we find it persuasive. Taking the facts in the light most
favorable to Houston, as we must at this stage, the com-
plaint to Goddard with the follow-up complaint to Wade
made up one continuous complaint process to which
Houston resorted. In effect, she was asking Wade to
ensure that the institution do something about sexual
harassment; there is not a hint that she had another,
unrelated, grievance about Goddard.1
1
We note in this connection that the procedures for addressing
sexual harassment play a critical role in this area of the law.
(continued...)
10 No. 07-2197
We note that, to succeed on a retaliation claim,
Houston need not prove that the underlying conduct she
perceived as sexual harassment actually was serious
enough to constitute a Title VII violation. Instead, she
need only show that, when instituting her grievance, she
had a “sincere and reasonable belief” that she was op-
posing an unlawful practice. Hamner v. St. Vincent Hosp. &
Health Care Ctr., Inc., 224 F.3d 701, 706-07 (7th Cir. 2000).
The objective reasonableness of the belief is not assessed
by examining whether the conduct was persistent or
severe enough to be unlawful, but merely whether it falls
into the category of conduct prohibited by the statute.
Contrast id. (holding that grievance about harassment
engendered by “homophobia” was not objectively reason-
able and thus could not form the basis of a retaliation
claim, because “[s]exual orientation is not a classification
that is protected under Title VII”). Title VII does protect
employees from discrimination on the basis of sex, and
1
(...continued)
Indeed, in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme
Court recognized a procedural affirmative defense for employ-
ers, when harassment by a supervisor does not result in a
tangible employment action. If the employer has exercised
reasonable care to prevent and correct harassment (typically
through an effective anti-harassment policy for the workplace)
and the employee has unreasonably failed to avail herself of
that policy, then the employer will prevail. See Faragher, 524 U.S.
at 807-08; Ellerth, 524 U.S. at 764-65. An employee in the midst
of complaining about underlying harassment may well wish
to criticize the company’s procedures at the same time.
No. 07-2197 11
sexual harassment is a recognized species of such dis-
crimination. 29 C.F.R. § 1604.11.
In this case, the record sufficiently demonstrates that
Houston subjectively felt that she had been sexually
harassed. In addition, the lap incidents involved actual
touching. This court has often recognized in the past
that unwanted physical contact falls on the more severe
side for purposes of sexual harassment. As we noted in
Patton v. Keystone RV Co., 455 F.3d 812 (7th Cir. 2006):
Our precedent provides some guidance on how to
evaluate the severity of harassment:
On one side lie sexual assaults; other physical
contact, whether amorous or hostile, for which
there is no consent express or implied; uninvited
sexual solicitations; intimidating words or acts;
obscene language or gestures; pornographic pic-
tures. On the other side lies the occasional vulgar
banter, tinged with sexual innuendo, of coarse or
boorish workers . . . .
455 F.3d at 816, citing Baskerville v. Culligan Int’l Co., 50
F.3d 428, 430 (7th Cir. 1995). See also, e.g., Worth v. Tyer,
276 F.3d 249, 268 (7th Cir. 2001) (“The fact that conduct
that involves touching as opposed to verbal behavior
increases the severity of the situation.”); Hostetler v. Quality
Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000). Having a
man old enough to be her father plop into her lap and put
his lips to her ear to whisper “you’re beautiful” is the
type of occurrence that, if it happened often enough,
could constitute sexual harassment, and so Houston’s
grievance was objectively reasonable.
12 No. 07-2197
Viewing the evidence in the light most favorable to
Houston, we conclude that she has shown that she
engaged in a statutorily protected activity when she
complained up the chain of command.
B. Adverse employment action
The parties do not dispute that Houston suffered an
adverse employment action. Whether we look to her
initial loss of work around October 20, 2004, when her
PRN position disappeared and Williams received the
new part-time job, or we focus on her eventual out-and-
out termination on April 26 (with the added insult stip-
ulating that she was not eligible for rehire), her case
easily satisfies this element.
C. Causal connection
The last element Houston must establish is a causal
connection between her statutorily protected activity and
the adverse employment action. Suspicious timing, to-
gether with other facts, can sometimes raise an inference
of a causal connection. Lalvani v. Cook County, 269 F.3d
785, 790 (7th Cir. 2001); Paluck v. Gooding Rubber Co., 221
F.3d 1003, 1009-10 (7th Cir. 2000). Houston and the Hospi-
tal argue over whether the window of time in this case
was narrow enough to be suspicious. We can measure the
time in several ways. The way most favorable to the
Hospital would be from Houston’s early August com-
plaint to Goddard to her termination letter almost ten
months later. The way most favorable to Houston would
No. 07-2197 13
be from her renewed complaint to Wade on September 26
(when Goddard realized that Houston was not going to
let the subject drop) to the day when Goddard sub-
mitted the restructuring request to HR, on October 7—a
mere nine days. Or one might look at Houston’s first
complaint to Wade on September 17 as the starting-
point and her dismissal from her existing PRN job on
October 20, approximately a month later, as the end-point.
This court has found a month short enough to reinforce
an inference of retaliation. See Lang v. Ill. Dep’t of Children
& Family Servs., 361 F.3d 416, 419 (7th Cir. 2004) (adverse
employment actions began “the same month” plaintiff
filed the racial discrimination grievance with his union).
Although the lap incidents took place in early August
(and perhaps a bit earlier), we think that the ap-
proach most favorable to Houston is to assume that the
suspicious-timing clock was restarted on September 17,
because that is when Houston complained to Wade, the
General Counsel and Integrity Officer. From that point, it
is at most nine days before the first sign of an adverse
employment action, because by the September 26 letter
Houston already knew that her job had been posted on
the job listings. The fact that full execution of the adverse
action took a while longer for bureaucratic reasons is
immaterial. Once the wheels were in motion, Goddard
submitted the requisition form on October 7, filled the
position on October 20, denied Houston work hours,
waited several months, and then terminated her in April
for working insufficient hours (a flaw that Goddard was
able to engineer herself).
14 No. 07-2197
The Hospital attempts to minimize the causal link
between Houston’s complaint to Wade and Goddard’s
allegedly retaliatory restructuring of the job by pointing
out that Goddard “explicitly stated (in a secretly-tape-
recorded conversation) that she had no problem with
‘anyone taking anything to the Legal Department.’” First
of all, no trier of fact would be compelled to believe
Goddard’s protestation of open-mindedness. Second, while
Goddard did literally utter these words, they are
sandwiched between other words; taken as a whole,
a rational jury could interpret the conversation in Hous-
ton’s favor. Here is the full quotation:
I have no problem with anyone taking anything to the
legal department but I am just curious when the
situation was dealt with I thought it was dealt with
very effectively it was a positive out come. You got
what you asked for. And yet you still because you
don’t think I said the right words or I phrased the right
sentence what was your expectation of what you
wanted to see happen after taking it to the hospital (?)
department.
(Hospital Supp. App. 36) (imperfections in transcript of the
tape-recorded conversation). A reasonable jury could find
Goddard’s statements defensive and accusatory. She comes
across as having a substantial problem with Houston’s
decision to take the matter to the legal department, despite
her perfunctory statement to the contrary. This, together
with testimony from Houston that Goddard’s tone with
her was defensive and irritated, Goddard’s own admission
that she felt “shocked” and “bewildered” when she
No. 07-2197 15
learned that Houston had complained about Goddard’s
handling of the complaint, and the fact that Goddard
posted Houston’s job on the job listings within a few days
of this meeting, is more than mere suspicious timing. It is
sufficient to raise an inference of causation.
D. But-for Causation
Even if all that is true, the Hospital argues, it is still
entitled to summary judgment on the basis of what it calls
unrebutted evidence that Goddard already intended to
eliminate Houston’s job for a legitimate business reason.
Compare Stone, 281 F.3d at 644 (holding that summary
judgment in favor of defendant is required when defen-
dant presents “unrebutted evidence that he would have
taken the adverse employment action against the plain-
tiff even if he had had no retaliatory motive”).
Through Goddard’s deposition, the Hospital presented
evidence that, upon taking the job of Director of Surgical
Services in June 2004, Goddard learned that two PRNs
(Houston and Williams) were doing the job of one
regular part-time employee. Goddard testified that she
regarded this as an undesirable business practice, because
the budget allowed for a part-time position with benefits,
so it should be filled in that way. (The point about benefits
was an odd one, given the fact that benefits impose sub-
stantial costs on employers. An August 2005 study per-
formed for the Small Business Administration reported
that about 29% of a business’s total compensation costs
for hourly employees is attributable to benefits. See “Cost
of Employee Benefits in Small and Large Businesses,” at 6,
16 No. 07-2197
at www.sba.gov/advo/research/rs262tot.pdf (last visited
7/19/08). It is unclear why Goddard thought that it would
be better if her employer shouldered that burden.) Also,
she said, a regular employee would have predictable
and reliable hours commitments (though there is no
evidence that Houston and Williams were ever unavail-
able when the Hospital needed them.)
It is true that Houston responded only by commenting
that Goddard’s statements were self-serving, but this was
just another way of saying that a trier of fact would have
to evaluate everything Goddard said and decide what
to accept and what to reject. Even without direct rebutting
evidence from Houston, the Hospital’s evidence fails to
establish that Houston first would have lost her PRN
position and then would have been effectively blacklisted
for all similar work until her termination in the absence
of the retaliatory motive. It merely shows that the job
restructuring might have occurred anyway at some point.
On the other hand, a trier of fact might have seen
Goddard’s explanation of the timing of her action as
only a post hoc justification. Goddard stated:
I felt the situation I inherited (two PRN employees
filling a regular, part-time position) would need to
be addressed . . . . After dealing with the most
critical issues facing the Surgical Service Department
through the summer of 2004, I turned my attention
to correcting the use of PRN employees in a regular
position in the fall of 2004.
The Hospital cannot meet its burden on summary judg-
ment by having the actor say only that she was thinking
No. 07-2197 17
vaguely of restructuring the job and planned to do it when
she got around to it. The fact that the Hospital also pre-
sented testimony that Goddard had not had a situation
in which two PRNs were sharing a job in all her prior
management years at the hospital does not compel a
different result. To the contrary, the fact-finder could
conclude that the fact that the “situation” continued
without being “addressed” for over three months indicates
that there was no urgency or even inevitability about
the Hospital’s decision to terminate Houston’s position.
Although the dissent contends there is “no doubt” that
Goddard intended to convert the PRN positions from the
time she came on board despite the delay in carrying out
this intention, it is able to come to that conclusion only
by viewing the evidence in the record in the light most
favorable to the Hospital. That is not the standard we
must apply; in our view there is enough in the record to
entitle a reasonable jury to find in favor of Houston.
* * *
Because Houston has established a prima facie case of
retaliation and the Hospital has not shown an absence
of material fact on the question whether it would have
taken the same action even without a retaliatory motive,
we R EVERSE the district court’s grant of summary judg-
ment in favor of the Hospital and R EMAND the case for
further proceedings.
18 No. 07-2197
P OSNER, Circuit Judge, dissenting. The plaintiff, Jessica
Houston, contends that the defendant, a hospital that
formerly employed her, dismissed her from her quarter-
time job in retaliation for her having complained to the
hospital’s general counsel about the handling of her
claim of sexual harassment. There is insufficient evidence
of retaliation to allow the case to go to a jury; and even
if there were sufficient evidence, there is no evidence of
retaliation for engaging in protected conduct, and without
that, there is no violation of Title VII. The district judge
was therefore right to grant summary judgment for the
defendant, and we should affirm.
Shortly after Houston was hired as an assistant
scheduler in the hospital’s surgery department, where
she and another college student shared a half-time posi-
tion, Pam Goddard became the senior director of surgical
services. She had worked for the hospital for many years
and as senior services director supervised more than
200 employees. The job of assistant scheduler is a responsi-
ble one. It includes providing scrubs to physicians, enter-
ing information concerning times for surgery that are
given to the scheduler by a nurse, and ordering and
picking up x-rays for use in forthcoming surgical opera-
tions. College kids who like Houston were working only
one-quarter of a normal work week did not work regular
hours and there was no assurance that either she or the
other assistant scheduler would be available at all times
when they were needed. Goddard wanted to replace the
two college students with a regular half-time employee,
and eventually she did.
No. 07-2197 19
But meanwhile there had been an incident at work in
which a male employee had sat down in Houston’s lap
uninvited and said “You’re beautiful,” and another
incident in which he had “whispered [to her] an unwel-
come sexual comment,” though she has not said what the
comment was. After the second incident Houston com-
plained to Goddard. The latter was reluctant to take
action because Houston had not invoked the hospital’s
prescribed procedure for complaining about sexual
harassment—until Houston volunteered the information
that she had been the victim of a sexual assault, though
not by the same man or at the hospital. The same after-
noon that Goddard learned this, she spoke to the male
employee about whom Houston had complained. He was
contrite, and there was no repetition of his offensive
behavior. So, in a matter of a few hours, Houston’s griev-
ance was successfully resolved.
Houston made no further complaints either about the
male employee who she claimed had harassed her or
about anyone else, and this is compelling evidence that
Goddard’s action in response to her complaint had been
effective. The statement in the majority opinion that
Houston “probably attributed the lack of further
incidents to her own attempts to avoid” the alleged
harasser is a conjecture that has no basis in the record;
she did testify that she tried to minimize her contacts
with him, but that is the natural reaction to someone
who you think has harassed you, whether or not you
fear further harassment. There is also no basis for the
assertion in the majority opinion that by not reporting the
conversation with the alleged harasser, Goddard had left
20 No. 07-2197
Houston “in fear that at any moment there might be a third
incident.” No reasonable jury could draw such an infer-
ence. Houston had made no complaint about the first
incident, after the second incident had said that she was
in “no rush” to meet with Goddard, filed no complaint
against the harasser, made no effort to follow up with
Goddard, and waited two months before taking the
matter to the general counsel. Those are not the actions of
someone in fear of a third incident of harassment “at any
moment.” When she did eventually complain to the
general counsel, she said nothing about fearing a third act
of harassment. His notes of their meeting, reporting what
she told him, state that “actions have stopped.” The
harassment was a closed book. Houston’s complaint to
the general counsel was about Goddard’s handling of
her complaint. She told him she should not have had to
share with Goddard personal information in order to get
action on her complaint of harassment. (Of course, she
didn’t “have” to share anything; all she had to do was to
follow the procedures specified by the hospital, and not
claimed to be inadequate, for complaining about harass-
ment.)
At a meeting with Goddard shortly after complaining
to the general counsel, Houston secretly recorded a con-
versation in which Goddard said: “I have no problem
with anyone taking anything to the legal department but
I am just curious when the situation was dealt with
I thought it was dealt with very effectively it was a
positive outcome. You got what you asked for . . . . I am
sorry that you feel the way you feel that as difficult . . . .
I felt like it was handled well but obviously you didn’t
No. 07-2197 21
and you are entitled to your opinion.” Houston replied:
“I said that at the end you handled it correctly after I told
you all the stuff and I stand o[n] that.” Notice of the
restructured job—a half-time job in place of the two
quarter-time jobs one of which Houston had filled—was
posted a few days later. Houston could not apply for
the job because a half-time job would not leave her
enough time for her college classes.
It strains credulity that Goddard would have con-
verted two jobs for college kids into one regular job (with
benefits) merely to get rid of Houston because of the
latter’s criticism of Goddard’s handling of her complaint
of harassment. (Even that, as we shall see, wouldn’t be
enough to create a prima facie case. Houston was not
complaining that Goddard had failed to deal effectively
with sexual harassment. There was no harassment after
she first contacted Goddard, and she acknowledges that
“at the end you handled it correctly.” That “end” came
within hours of Houston’s first complaining about harass-
ment.) It is true that the restructuring of the job came
hard on the heels of the meeting (the one Houston
secretly recorded) at which Goddard expressed irritation
(who wouldn’t?) at Houston’s having complained to the
general counsel. But there is no evidence to contradict
Goddard’s claim that she intended the restructuring from
the start and that the delay in implementation was due
to her having more pressing matters to attend to in her
new job.
The majority expresses puzzlement that Goddard would
prefer having one part-time employee with benefits to
22 No. 07-2197
two part-time employees without benefits, since benefits
are an expense. But her departmental budget allowed for
a part-time position with benefits, and it made sense for
her to use the funds allotted for that position before they
disappeared in the next budget cycle. The majority’s
conjecture is based on a government report concerning
average employee benefits, a report that makes no refer-
ence to the benefits expense of the St. Joseph Regional
Medical Center—obviously not all employers pay the
same benefits. Moreover, a part-time employee who
receives benefits is bound to be more dependable than
one who does not, because part-time jobs with benefits
are tough to come by. “Part-time workers are much less
likely to have employment-based health insurance
than full-timers . . . . In 2004, 18.6 percent of part-time
workers were covered by employment-based health
benefits through their own employer, compared with
61.5 percent of full-time workers.” Employee Benefit
Research Institute, “EBRI News: Growing Trend of Part-
Time Workers Feeds Into Overall Decline of U.S.
Health Coverage,” May 2, 2006, www.ebri.org/pdf/
PR_735_2May06.pdf (visited Aug. 22, 2008); to same effect,
see Peter S. Fisher, Elaine Ditsler, Colin Gordon and David
West, “Nonstandard Jobs, Substandard Benefits,” July
2005, pp. 15-22, http://cfcw.org/Nonstandard.pdf (visited
Aug. 22, 2008). And it is preferable from an employer’s
standpoint to have one person doing a job rather than
two splitting it, which complicates supervision and in-
creases paperwork (two separate personnel files, etc.).
Houston points out that after the hiring of a regular
employee to do her job she was still available for part-time
No. 07-2197 23
work, since the regular employee was sometimes
swamped, but that Goddard gave her no work. But
Goddard testified without contradiction that her practice
was to offer part-time work to other regular employees
first—which would certainly be the normal practice—and
that there was nothing left over for the college kids. (The
majority opinion oddly describes this as “blacklist[ing]”
Houston.)
Houston argues that the fact that Goddard considered
her rude and disrespectful (notably in secretly recording
their conversation in violation of Illinois law, 720 ILCS
5/14-2(a)(1)) is evidence of retaliation. No; it is evidence
that Goddard considered Houston rude and disrespect-
ful—and an infringer of Goddard’s legally protected
privacy rights and ungrateful to boot, for Goddard could
have insisted that Houston follow the hospital’s prescribed
procedure for complaining about sexual harassment, but
instead she cut the red tape and confronted the alleged
harasser without requiring Houston to file a complaint.
It is not a violation of Title VII to refuse to employ a
person whom you consider (whether or not reasonably)
rude and disrespectful, but in any event there is no evi-
dence that that was the motive for the restructuring.
The majority thinks it suspicious that Goddard felt
“shocked” and “bewildered” when she learned that
Houston had complained about her to her employer’s
lawyer. That is the natural human reaction to a groundless
complaint to your superior. The majority’s reasoning
places employees such as Pam Goddard in an impossible
position: If the employee reacts indignantly to being
24 No. 07-2197
complained about, this is taken as evidence of retaliation;
but if she reacts by admitting that the complaint about
her to her superior is justified, or by not protesting
seems tacitly to admit that, she sets herself and her com-
pany up for a lawsuit (with the admission as evidence)
for failing to handle a claim of sexual harassment in
accordance with Title VII.
The majority bolsters its argument that Goddard was
conducting a vendetta against Houston by saying that
after filling the restructured job Goddard “denied [Hous-
ton] work hours, waited several months, and then termi-
nated her in April for working insufficient hours (a flaw
that Goddard was able to engineer herself).” But if
Goddard wanted to punish Houston, all she had to do
was not give her an assignment. No work, no pay. What
additional benefit did Goddard obtain by formally termi-
nating her? Why not have let her twist in the wind,
always hoping she might receive an assignment?
I conclude that no reasonable jury could find a retaliatory
motive in Goddard’s actions. But if I am wrong and it
could, it could not take the next step and find that the
retaliation was for statutorily protected activity, that is,
for “oppos[ing] any practice made an unlawful employ-
ment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Hous-
ton’s only concern in complaining to the general counsel
and repeating the complaint to Goddard was with
Goddard’s not having acted until Houston told her of
having been the victim of a sexual assault prior to her
employment by the hospital. Houston was complaining
to the general counsel not of having been sexually harassed
No. 07-2197 25
(she mentioned the alleged harassment only by way of
background, for that grievance had long since been re-
solved), but of Goddard’s handling of the grievance. In
the conversation with Goddard that she secretly
recorded in violation of Illinois law, Houston confirmed
that she had complained to the general counsel only
because she didn’t like having had to share “all the stuff.”
(In fact she hadn’t had to, as I noted earlier.) Yet she
took the initiative in sharing the information with the
general counsel and now, in this lawsuit, with the world.
The majority’s statement that “in effect, [Houston] was
asking [the general counsel] to ensure that the institution
do something about sexual harassment” is an unwarranted
gloss on Houston’s own version of her complaint (“in
effect” is the giveaway). Houston was not concerned
about sexual harassment. The alleged harassment was
history, and there is nothing to suggest that she was
concerned about actual or potential harassment of other
employees. The statement in a footnote of the majority
opinion that “an employee in the midst of complaining
about underlying harassment may well wish to criticize
the company’s procedures at the same time” thus contains
two errors: Houston was not complaining about being
harassed—that complaint had been resolved long
ago—and she was not complaining about the company’s
procedures either. I cannot find any hint that she was
dissatisfied with those procedures. She does argue that
Goddard violated them. The hospital’s antiharassment
policy (the only possible “procedures” to which the
majority opinion can be referring) states that “If you
believe you or any other employee is being subjected to
26 No. 07-2197
conduct or comments that violate this policy, you are
encouraged and have a responsibility to immediately
report these matters to the Human Resources Depart-
ment. If for any reason you do not feel comfortable report-
ing your concerns to Human resources, you may report
your concerns to the Integrity Officer.” Houston believed
that she had been harassed, and she therefore had a
responsibility to report the matter not to Goddard, but
to either the Human Resources Department or the
Integrity Officer. She did not fulfill that responsibility.
Goddard, who did not witness the incident that Houston
alleged to be harassment, did not, when Houston first
spoke to her, believe that Houston had been harassed.
Not that she disbelieved it; she just didn’t have evidence
beyond Houston’s say-so. So the policy did not require
her to report the matter to the Human Resources Depart-
ment or the Integrity Officer.
Notice also that Goddard could have complied with
the antiharassment policy fully just by reporting
Houston’s concern to the Human Resources Department.
That would have delayed remediation. Goddard went out
of her way, by directly confronting the alleged harasser,
to make sure that the problem was resolved immediately.
The statement in the majority opinion that Houston
“subjectively felt that she had been sexually harassed,”
while true, is irrelevant. She was not (I repeat) complaining
about the harasser. She was complaining about Goddard,
who had not harassed her. If when Houston met with the
general counsel she was still concerned about being
sexually harassed, why didn’t she tell him? Nor had
No. 07-2197 27
Goddard failed to handle Houston’s complaint of sexual
harassment properly. She had, as Houston concedes,
acted correctly in the end. And in the beginning too; her
initial reluctance to take action had been reasonable. We
warned in McDonnell v. Cisneros, 84 F.3d 256, 260-61 (7th
Cir. 1996), against placing supervisors on a razor’s edge,
where if they fail to act precipitately on a complaint of
sexual harassment they are sued for violating Title VII,
while if they act precipitately they are sued by the alleged
harasser. “Alleged harassers . . . have brought a number of
state common law claims, including wrongful discharge,
breach of contract, tortious interference with an employ-
ment contract, invasion of privacy, negligent investiga-
tion, intentional interference with an employment rela-
tionship, defamation, libel, and intentional infliction of
emotional distress.” 1 Alba Conte, Sexual Harassment in the
Workplace: Law and Practice 703-05 (3d ed. 2000); see also
Barbara Lindemann & David D. Kadue, Sexual Harass-
ment in Employment Law 359-60 (1992).
At first Goddard wasn’t sure that the incident about
which Houston was complaining had been sexually
motivated, because Houston’s email requesting the meet-
ing to discuss it had said that it was “not a rush” (that is,
that there was no urgency about Goddard’s meeting
with her) and because Houston was unwilling to use the
hospital’s prescribed procedure for reporting sexual
harassment. Shortly after the meeting with Goddard of
which Houston now complains (the meeting in which she
revealed the sexual assault), she emailed Goddard saying:
“Thank you . . . so much for listening and understanding.
You made me feel a lot more comfortable when I left.
28 No. 07-2197
Thanks ( .” The statement in the majority opinion that the
meeting to which the email referred was not about the
alleged sexual harassment is unpersuasive in light of
Houston’s failure to offer an alternative explanation of
what the meeting was about.
Houston is not complaining that Goddard interrogated
her about her sexual history in a way that might discour-
age complaints about sexual harassment. There was no
interrogation. The information about a previous sexual
assault was volunteered by Houston in order to prod
Goddard into what could have turned out to be a precipi-
tate reaction to the complaint. As the majority puts it “In
response [to Goddard’s reluctance to speak to the
alleged harasser unless Houston filed a formal complaint],
Houston revealed that she had been a victim of sexual
assault.”
Goddard’s reluctance to act, until Houston volunteered
the information suggestive of Houston’s special sensitivity
to sexual harassment, was not only reasonable but also
harmless, because no harassment occurred in the brief
interval (a matter of hours) between Houston’s complain-
ing about the harassment and Goddard’s taking action,
conceded by Houston to have been effective—in fact it
was, as I noted, beyond the call of duty.
The only possible explanation for Houston’s dramatic
swerve from being pleased with Goddard’s handling of
the situation (the smiley-face email) to litigation
planning, complete with an illegal secret tape recording,
is that she saw that she was about to lose her job. Other-
wise the two-month interval between the meeting with
No. 07-2197 29
Goddard that is the core of her complaint about Goddard’s
handling of the harassment grievance and the meeting with
the general counsel makes no sense (and she requested and
met with the general counsel on the same day, so the
delay was her doing, not his). Nothing had happened in
between. We know she knew about the job restructuring
by September 26, and she may well have gotten wind of
it earlier—before the meeting with the general counsel,
which took place on September 17.
She claims not to have known that Goddard had spoken
with the accused harasser about the incident. But Goddard
had told Houston she would do so, and why wouldn’t
Houston either assume she had or, if uncertain, check
with her? It’s not as if the harassment had continued,
which would have suggested that Goddard had not
followed through. On the contrary, the fact that the
harassment ceased should have made Houston realize
that Goddard had done as promised—as she had.
To say as the majority opinion does that Houston
“engaged in a statutorily protected activity when she
complained up the chain of command” is to equivocate.
Her complaint to Goddard about sexual harassment was
protected; her complaint to the general counsel about
Goddard, and its repetition to Goddard in the recorded
conversation, were not. That is why, even if Goddard did
restructure the job just in order to get rid of Houston
for having criticized her, her action, while it would not
have been nice, could not have violated Title VII.
Against this the majority opinion just cites a district
court decision and remarks that it must “tak[e] the facts in
30 No. 07-2197
the light most favorable to Houston.” The district court
case is inapposite (and anyway is not authority) because
the plaintiff’s complaint in that case concerned the vio-
lation of duties imposed by Title VII, and there was no
violation of any such duty in this case. Houston com-
plained about harassment; the hospital responded; the
harassment ceased. The evidence that she was not com-
plaining to the general counsel about protected activity
consists of her own admissions.
Suppose she had complained to Goddard about the
first incident of unwanted attention from the male
coworker, Goddard had done nothing, and then the
second incident had occurred. Whether or not Goddard
had acted reasonably in failing to prevent that second
incident, Houston could not be fired for complaining
about Goddard’s failure; for that failure would raise a
question about the adequacy of the hospital’s practices
or procedures for preventing sexual harassment, and so
she would not have lacked a “reasonable belief” (whether
or not correct) that the hospital had violated Title VII.
Her complaint would be statutorily protected, e.g.,
Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307, 1315
(7th Cir. 1989), because she would be complaining about
inaction, not about insensitivity.
All that the hospital “was required to do in order to
satisfy its obligations under Title VII was to take prompt
action reasonably calculated to end the harassment and
reasonably likely to prevent the conduct from recurring.
The steps taken by [Goddard] clearly satisfied this stan-
dard.” Berry v. Delta Airlines, 260 F.3d 803, 813 (7th Cir.
No. 07-2197 31
2001); see also Cerros v. Steel Technologies, Inc., 398 F.3d 944,
954 (7th Cir. 2005) (“the efficacy of an employer’s
remedial action is material to our determination whether
the action was ‘reasonably likely to prevent the harass-
ment from recurring’ ”); Williams v. Waste Management of
Illinois, 361 F.3d 1021, 1029-30 (7th Cir. 2004) (“the net
result [of a mere verbal warning] was that Williams’s
complaint was dealt with within twenty-four hours, and
he experienced no further race-based harassment”);
Andreoli v. Gates, 482 F.3d 641, 644 n. 2 (3d Cir. 2007) (“a
remedial action that stops the harassment is adequate as
a matter of law”); Swenson v. Potter, 271 F.3d 1184, 1196-
98 (9th Cir. 2001); Spicer v. Virginia, 66 F.3d 705, 710-11
(4th Cir. 1995). No reasonable person would have thought
that Goddard had violated Title VII by her handling of
Houston’s complaint; the majority’s contrary conclusion
is inconsistent with the case law.
My colleagues are deceived. This is not a case about
the sexual harassment of an employee, but about the
litigation harassment of an employer. The district judge
was right to end it.
9-12-08