Bombaci, Karen v. Journal Comm Publ Gr ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2222
KAREN BOMBACI,
Plaintiff-Appellant,
v.
JOURNAL COMMUNITY PUBLISHING GROUP, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-C-326—J.P. Stadtmueller, Judge.
____________
ARGUED FEBRUARY 9, 2007—DECIDED APRIL 10, 2007
____________
Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. The EEOC and Karen Bombaci
sued Bombaci’s former employer, Journal Community
Publishing Group (“JCPG”), for sexual harassment and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e-2 & 2000e-3. The district court
granted summary judgment in JCPG’s favor, and Bombaci
(but not the EEOC) appeals the district court’s ruling on
her sexual harassment claim. For the following reasons,
we reverse.
2 No. 06-2222
I. Background
JCPG publishes community newspapers in Hartland,
Wisconsin. In August 1998, Bombaci began working at
JCPG’s printing facility as a first-shift pressroom jogger.
That position required her to take newspapers off of the
press, stack them in piles or on a skid, take out the trash,
and wash printing machines. She worked at the facility
with fellow jogger, Sarah Stoll, and a number of press
operators, including Paul Hansen, Brian Wampner, and
Glenn Mueller. James Creasey managed JCPG’s printing
facility.
Bombaci claims that shortly after she was hired,
Wampner and Mueller began sexually harassing her. Their
conduct, if Bombaci’s allegations are accepted, was repug-
nant. Bombaci says that Wampner grabbed her breasts
and pulled down her shirt to reveal her bra “all the time.”
She also claims that he placed a newspaper between his
legs and shoved it between her legs, bent over in front of
her and pretended to have sex with her, pulled his pants
down to his knees, grabbed her buttocks, and talked to her
about various sex acts. Bombaci further alleged that
Mueller rubbed his body against hers, looked down her
shirt, and made extremely vulgar sexual comments to her
on a weekly basis. Hansen and Stoll corroborated many
of these allegations, and Mueller acknowledged that he
engaged in sexual teasing.
Bombaci stated that she found the harassment unwel-
come but did not personally complain to anyone other
than Stoll until March 2001. Nevertheless, Bombaci claims
that sometime in 1999, Stoll told her that Stoll had
reported the harassment to Creasey. In her deposition,
Bombaci testified, “[Stoll] told me she told Jim that the
guys were harassing me and it was going on for a while,
and she did tell me that Jim told her to go up front, to say
something up front.” Bombaci says that she understood “go
No. 06-2222 3
up front” to mean that Stoll should tell Gary Jasiek,
JCPG’s vice president. Neither Stoll nor Bombaci reported
Bombaci’s concerns to Jasiek.
In January 2001, Wampner threw a crushed paper cup,
which hit Bombaci in the face, cutting her under the eye.
Creasey noticed the cut and asked Bombaci what hap-
pened. After Bombaci recounted the incident, Creasey
issued Wampner a written reprimand. In February 2001,
Wampner yelled profanities at a group of workers, and
Creasey gave him a verbal reprimand. Also in February
2001, Creasey asked Stoll why she and Bombaci rarely
worked with Wampner and Mueller. Stoll responded that
“those guys are really bad the way they talk.” Creasey
asked Stoll and Bombaci for details, but they both refused
to provide further information.
On March 27, 2001, JCPG held an “employees only”
meeting to introduce Cynthia Barrows, a new employee in
the human resources department, to the other employees
and to discuss the employee handbook. In an effort to
make employees more willing to discuss work-related
issues, supervisors were not allowed to attend the meeting.
Bombaci stated that she was surprised when she saw Stoll
at the meeting because she thought that Stoll was a
supervisor.
After the meeting, Bombaci returned to her work duties.
As she was stacking newspapers, Wampner allegedly
looked down the front of her shirt. Stoll stated that she
saw Wampner and yelled at him to stop and that Bombaci
began crying and said that she could not take the harass-
ment any longer. Stoll suggested that Bombaci report the
conduct and agreed to accompany Bombaci for support.
Stoll did not want Wampner and Mueller to get fired,
however, so she told Bombaci not to name the harassers.
Stoll and Bombaci met with Barrows and spoke in gen-
eral terms about the harassment.
4 No. 06-2222
On April 5, Barrows spoke with Bombaci about the
allegations a second time, and Bombaci finally named
Mueller and Wampner. She also stated that she feared
Stoll would retaliate against her for naming the harassers.
On April 6, Barrows met with Hansen, and he provided
specific examples of Wampner’s and Mueller’s harassment.
The same day, Jasiek, Barrows, and Creasey interviewed
Wampner and Mueller. Wampner admitted pulling on a
female employee’s shirt, and Mueller acknowledged
swearing and commenting on women’s clothing during
work hours. Shortly afterwards, JCPG terminated them.
In the months after Mueller and Wampner were fired,
Bombaci felt that her co-workers ostracized her. On
September 27, 2001, she faxed JCPG a letter of resigna-
tion.
The record discloses other incidents of inappropriate
conduct on the part of Mueller and Wampner. In 1996,
Creasey heard Mueller state that he liked the company’s
new refrigerator because women had to bend over to look
for their food. As a result, Mueller received a written
reprimand. Sometime during the summer of 2000, Crystal
Hagen, a supervisor in another department, learned that
Wampner had made an inappropriate sexual comment to
Hagen’s 14-year-old niece. Hagen did not report the
incident to Creasey or Jasiek. During another incident (it
is not clear when it occurred), Wampner and Mueller
stuck pictures of women in bikinis to the printing press
that they operated. When Creasey saw the photographs,
he promptly removed them.
Creasey testified that he never observed Mueller and
Wampner harass Bombaci and that he first learned about
the harassment when Stoll and Bombaci complained to
Barrows. Though Bombaci does not remember Creasey
witnessing any acts of harassment, she testified that
many of the acts occurred near Creasey’s office, which
was thirty feet from the nearest press area. Creasey’s
No. 06-2222 5
desk faced away from his door (which had a window), and
Wampner and Mueller’s press was not visible from
Creasey’s office. When Creasey was in his office, he could
not hear conversations in the press area because he
usually kept the door to his office shut and the presses
were very loud when running. Most of the alleged mis-
conduct occurred when the presses were running, and
Mueller testified that he did not engage in horseplay
when Creasey was watching him.
JCPG distributes to all new employees an employee
handbook that contains the company’s sexual harassment
policy. The policy states:
If you believe you have been harassed[,] you are
encouraged to come forward without fear or reprisal
by telling your supervisor/manager; . . . telling a
supervisor/manager not in your work area; . . . telling
the human resources manager; or . . . telling the
president of Add Inc.
New employees also watch a video that identifies individu-
als to whom employees should report sexual harassment.
Bombaci testified that she received an employee hand-
book but did not read the sexual harassment policy. She
did watch the video.
Bombaci further testified that she believed that she
was reporting harassment to a supervisor by discussing
the problem with Stoll. She thought Stoll was a super-
visor because she went to Stoll for her work assignments
and to ask for sick or vacation leave and because Stoll
trained Bombaci when she started her job. Stoll’s descrip-
tion of her job duties is consistent with Bombaci’s descrip-
tion. Stoll testified that she assigned duties to employees,
helped Creasey with payroll, drafted administrative
reports, notified employees of meetings, supervised joggers
during Creasey’s vacation, and tracked employees’ vaca-
tion and personal days.
6 No. 06-2222
The district court granted summary judgment in JCPG’s
favor, ruling that Mueller’s and Wampner’s harassment
was severe and pervasive but that Bombaci had not offered
evidence from which a jury reasonably could find that
JCPG acted negligently in discovering the harassment.
The district court concluded that none of Wampner’s or
Mueller’s pre-March 2001 conduct gave Creasey notice that
Bombaci was being sexually harassed, that Bombaci could
not reasonably have believed that Stoll had the authority
to respond to complaints of sexual harassment, and that
Bombaci knew or should have known how to report
correctly the sexual harassment but failed to do so. It
also ruled that JCPG did not retaliate against Bombaci.
II. Analysis
Bombaci has appealed the district court’s summary
judgment ruling on her sexual harassment claim, which
means that we must determine whether she has offered
evidence from which a jury reasonably could find that
JCPG required her to work in a “discriminatorily hostile
or abusive environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993). If a co-worker creates a hostile
work environment, an employer can be held liable only
if it was negligent in discovering or remedying the harass-
ment. See Phelan v. Cook County, 463 F.3d 773, 784 (7th
Cir. 2006). A plaintiff alleging co-worker harassment
must offer evidence either that she notified the employer
about the harassment or that the harassment was so
pervasive that a jury may infer that the employer knew
about it. See Zimmerman v. Cook County Sheriff ’s Dept.,
96 F.3d 1017, 1018-19 (7th Cir. 1996). In some situations,
the notice may come from someone other than the victim.
See id. at 1019.
Bombaci makes three principal arguments in support
of her contention that a jury reasonably could find that
JCPG acted negligently. Only one argument is meritorious.
No. 06-2222 7
A. Sarah Stoll
Bombaci first argues that JCPG was negligent in
remedying Mueller’s and Wampner’s harassment be-
cause Stoll was a supervisor who should have forwarded
Bombaci’s complaints to higher management. “Where an
employer sets up a ‘point person’ to accept complaints, ‘this
person becomes the natural channel for the making
and forwarding of complaints, and complainants can be
expected to utilize it in the normal case.’ ” Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1035 (7th Cir.
1998) (quoting Young v. Bayer Corp., 123 F.3d 672, 674
(7th Cir. 1997)). “Where a point person [i]s not identified
or easily accessible, an employer can receive notice of
harassment from a ‘department head’ or someone that
‘the complainant reasonably believed was authorized to
receive and forward (or respond to) a complaint of harass-
ment.’ ” Id. JCPG’s sexual harassment policy set up a
number of point people, including all supervisors, to
receive sexual harassment complaints. Therefore, we
must determine whether Bombaci has offered evidence
indicating that she reasonably believed that Stoll was a
supervisor or, at the very least, that Bombaci reasonably
believed that Stoll was someone whose duties required her
to forward sexual harassment complaints to higher
management. See Valentine v. City of Chicago, 452 F.3d
670, 678 (7th Cir. 2006); Young, 123 F.3d at 675.
In Parkins, the plaintiff ’s employer had a sexual harass-
ment policy that advised employees to bring complaints
to their “immediate supervisor.” The plaintiff, who was
a truck driver, said that she complained to a man named
Spellman, who assigned truck drivers to work with
particular construction crews and called the truck drivers’
union to request additional drivers. Spellman had little
discretionary authority, and even that authority was
subject to a superintendent’s approval. We held that
8 No. 06-2222
Spellman was not a supervisor and that the plaintiff
could not reasonably have believed that he would refer
her complaints to higher management. We said that
Spellman’s “limited duties and authority, coupled with
[the plaintiff ’s] daily access to and observance of people
with authority to correct the problem, made it unreason-
able for [her] to believe that Spellman was the type of
employee who could be expected to convey her complaints
to someone who could stop the harassment.” Parkins, 163
F.3d at 1038. By contrast, in Valentine, we held that a
plaintiff notified her employer of sexual harassment
when she complained to an individual who supervised
forty to fifty employees and was authorized to transfer
employees to different job sites. 452 F.3d at 678.
In this case, Stoll’s most significant tasks, assigning
duties to joggers and assisting with scheduling, were
similar to the ones found insufficient to confer supervisory
status in Parkins—assigning duties to truck drivers and
requesting additional drivers from the union office. Stoll
also distributed payroll checks, notified employees of
meetings, and kept track of employees’ vacation days,
but those tasks are best described as secretarial. None
of Stoll’s duties suggest that she could effect the terms
of another individual’s employment in a way that could
remedy sexual harassment.1 Though Bombaci and other
employees stated that they believed that Stoll was a
supervisor, Bombaci has offered no evidence that this
belief was reasonable in light of Stoll’s duties.
1
Bombaci also claims that Creasey told her that she should
report to Stoll on her first day of work and that Stoll would tell
her where to go and what to do. This evidence does not indicate
that Stoll was Bombaci’s supervisor. Employers routinely assign
veteran employees to train their new co-workers in the basic
duties of a job. This type of direction, standing alone, does
not suggest that an employer anticipates the veteran co-worker
will forward sexual harassment complaints to management.
No. 06-2222 9
B. Constructive Notice
Bombaci next contends that Creasey must have known
about Bombaci’s harassment given its frequent, open, and
long-lasting nature. See Rhodes, 359 F.3d at 507 (“[W]e
could charge an employer with constructive notice where
the harassment is sufficiently obvious.”). In Wilson v.
Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999), the
Court held that an employer had constructive notice of
sexual harassment where sexual “cartoons and fake
penises were displayed in common areas or placed in open
view at [the plaintiff ’s] work station . . . . [M]uch of the
alleged misconduct was public and deliberately exhibition-
ist.” In Waltman v. International Paper Co., 875 F.2d 468,
471 (5th Cir. 1989), the court held that an employer had
constructive notice of harassment where “[s]exually
explicit pictures and graffiti [derogating the plaintiff] were
drawn on the walls of the powerhouse, on the restroom
walls[,] and in the elevator.” Additionally, employees
placed sexually explicit calendars on the walls and in
their lockers, which were kept open. Id. By contrast, in
Rhodes, the Court held that an employer did not have
constructive knowledge of harassment despite the employ-
ees’ regular viewing of pornographic films and magazines.
The Court noted that no supervisor worked on-site and
that employees acted as lookouts while the films were
playing. Rhodes, 359 F.3d at 507.
On balance, the facts in this case are closer to Rhodes
than Wilson and Waltman. Though Mueller and Wampner
allegedly made numerous sexual comments and regularly
touched Bombaci during the three years that she worked
at JCPG, there is no evidence that the harassment oc-
curred in front of supervisors. Bombaci concedes that
Creasey kept his office door shut during the day and sat
at a desk facing away from the door. The presses in the
plant were very loud—people had to scream to be
10 No. 06-2222
heard—and neither Bombaci nor Hansen recalls Creasey
witnessing any of the conduct. Bombaci claims that “a lot
of things” occurred near her locker, which was right next
to Creasey’s office door, and that Creasey must have
heard something because Wampner often screamed at her
and she screamed back. Bombaci’s testimony, however,
does not indicate that Creasey should have known that
such exchanges stemmed from sexual harassment. In
short, Bombaci’s evidence does not approach the exhibi-
tionist misconduct found actionable in Wilson and
Waltman. As a result, no jury reasonably could find
that JCPG had constructive notice of Mueller’s and
Wampner’s harassment.2
C. Stoll’s Alleged Statement to Creasey
Bombaci next argues that JCPG was negligent in
remedying Mueller’s and Wampner’s harassment because
Stoll reported the harassment to Creasey. Bombaci
testified that sometime in 1999, Stoll told her that Stoll
told Creasey that “the guys were harassing [Bombaci]” and
2
Bombaci also contends that JCPG had notice of sexual harass-
ment because Creasey witnessed Mueller make sexual jokes from
time to time and removed pictures of women in bikinis from one
of the presses on which Wampner and Mueller worked. She also
notes that another manager, Hagen, learned that Wampner
made inappropriate comments to her niece. By themselves, these
isolated incidents were not sufficient to notify Creasey that
Bombaci was being sexually harassed because they did not
come close to creating an actionable hostile work environment.
See McPherson v. City of Waukegan, 379 F.3d 430, 441 (7th Cir.
2004) (holding that an employee’s sexual comments, which
were made to a group of female workers, were insufficient to
notify the employer that the employee might commit serious
acts of sexual harassment in the future because the comments
did not create an actionable hostile work environment).
No. 06-2222 11
that Creasey told Stoll to “go up front, to say something up
front.” According to Bombaci, she understood Creasey’s
response to mean that Stoll should take the complaint to
Jasiek, though neither Stoll nor Bombaci ever did so. Both
Stoll and Creasey deny that such a conversation occurred,
but on summary judgment, we do not measure the credibil-
ity of deposition testimony if it is admissible evidence of
an employer’s liability. Paz v. Wauconda Healthcare and
Rehabilitation Centre, LLC, 464 F.3d 659, 664-65 (7th Cir.
2006). Here, there is a possibility that Stoll’s alleged
statement was an admission by a party-opponent, see Fed.
R. Evid. 801(d)(2), and JCPG does not argue otherwise.3
Assuming the statement can be offered for the truth of
the matter asserted, a jury reasonably could find that
JCPG’s response to Stoll’s complaint was negligent. JCPG
appointed Creasey as one of several individuals to whom
employees should bring complaints of sexual harassment,
and Creasey knew that Mueller had made inappropriate
sexual comments in the past. One could conclude that
Creasey, aware of a significant risk of sexual harassment
in the workplace, had a duty—minimally burdensome—to
contact Bombaci or at least make sure that another
supervisor did so. See Young, 123 F.3d at 675. Instead,
Creasey allegedly passed off this important responsibil-
ity to Stoll, a lower-level worker with no authority to
remedy sexual harassment, and did not speak with
Bombaci or Jasiek to make sure that the problem was
being addressed.
3
We decline to resolve definitively whether the statement
is hearsay because it is a fact-based issue that depends on
whether Stoll made the statements within the scope of her
authority as an agent for JCPG. See Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 801.33[1]
(Joseph M. McLaughlin ed., 2d ed. 2006).
12 No. 06-2222
Though we have held on several occasions that an
employer reasonably can expect a victim of sexual harass-
ment to make some minimal effort to follow up on an
initial complaint when the employer requests her to do so,
see, e.g., Jackson v. County of Racine, 474 F.3d 493, 502
(7th Cir. 2007) (holding that an employer acts reasonably
where it attempts to follow up with complainants, but
complainants do not respond), we have never held that an
employer acts reasonably where a supervisor receives a
credible complaint of sexual harassment and no effort is
made to contact the alleged victim. Under these facts, a
jury reasonably could find that JCPG acted negligently.
IV. Conclusion
The Court REVERSES the district court’s ruling and
REMANDS for proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-07