Patton, Brenda v. Keystone RV Company ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3891
BRENDA PATTON,
Plaintiff-Appellant,
v.
KEYSTONE RV COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 C 411—Robert L. Miller Jr., Chief Judge.
____________
ARGUED MAY 5, 2006—DECIDED AUGUST 1, 2006
____________
Before KANNE, WOOD, and SYKES, Circuit Judges.
KANNE, Circuit Judge. This appeal requires us to deter-
mine whether the facts of this employment discrimination
case constitute an objectively hostile work environment
supporting a claim of constructive discharge. The district
court thought the case fell short of a hostile
work environment, and, therefore, granted summary
judgment for the employer. We disagree, and remand for
trial.
I. HISTORY
What follows are the facts present in the summary
judgment record, taken in a light most favorable to Patton,
2 No. 05-3891
with a focus on the issue of hostile work environment.1
Keystone RV Company manufactures high-end recreational
vehicles (“RVs”), some of which come fully equipped with
bedrooms, kitchens, and all the other amenities of a home.
Brenda Patton began her employment with Keystone in
April of 2001 at its Elkhart, Indiana location.
At the Elkhart plant, Patton’s immediate supervisor
was Joe Solis, a group leader. Solis reported to Glen Miller,
an assistant plant manager, who in turn reported to the
Elkhart plant manager, Keith Weaver. Rod Ramey, the
alleged harasser, was the manufacturing manager
who oversaw a number of Keystone’s plants, including those
in Elkhart and Goshen (where Patton was eventually
transferred). Ramey’s job was to ensure product quality,
and to that end he could take any personnel action against
the employees at the plants he supervised.2
Patton says the harassment began in October of 2002,
with Ramey telling her, “Did you know that we are fucking
according to the rumor over in Goshen?” There was no
affair, as Patton had never before had a conversation
with Ramey, and only knew him in passing. Patton re-
sponded by saying, “That’s not very nice.” Shortly there-
after, Ramey began to question Patton about whether she
1
The parties dispute whether it is proper for us to rely on
Patton’s affidavit, which was struck, at least in part, by the
district court. We need not definitively address the issue be-
cause even when disregarding the facts in the affidavit (as we
have) it was still error to grant summary judgment.
2
It is undisputed that Ramey was Patton’s supervisor for
purposes of Keystone’s liability under Title VII. See Rhodes v.
Ill. Dep’t of Transp., 359 F.3d 498, 506 (7th Cir. 2004) (explain-
ing that “[a] supervisor is someone with the power to directly
affect the terms and conditions of the plaintiff ’s employment”)
(emphasis in original) (citing Parkins v. Civil Constrs. of Ill., Inc.,
163 F.3d 1027, 1034 (7th Cir. 1998)).
No. 05-3891 3
was having an affair with Solis, and informed her that
if it were true the two would not be allowed to work to-
gether.
Part of Ramey’s job was to monitor work performance,
which at times required him to “hover” around individual
employees. Patton, however, felt that Ramey was doing
more than monitoring her work. She thought Ramey
was always leering at her, staring at her body as she
knelt, crouched, and bent over while working in the RVs.
She also thought that Ramey spent an inordinate amount
of time around her. This account was corroborated by Miller
(the assistant plant manager), who averred that Ramey
spent an unusual amount of time around Patton. Miller
thought Ramey “seemed obsessed” with Patton and “acted
like a disturbed man” around her.
Ramey also touched Patton inappropriately. The first (and
most serious incident) occurred when she was wear-
ing shorts, crouching in the doorway of a nearly finished
RV. As she finished cleaning that portion of the vehicle, she
spun around, legs open to the outside. Ramey was standing
there, presumably observing her work, and he slid his hand
under Patton’s shorts, up her inner thigh, while comment-
ing that her legs were smooth. His hand went as far as her
underwear, at which point Patton fell backwards to break
the contact. On another occasion, Patton was on her knees
cleaning the floor of an RV and was working backward
toward the door to the outside. Ramey was standing right
outside of the RV, and he put his hand on her calf as she
reached the doorway. Another incident occurred in the
bedroom area of an RV. As Patton was squatting down to
repair carpet, Ramey crouched down behind her and put his
arm on her back with his hand near her neck. He then
placed his face quite close to her ear and told her to meet
him for a drink. Patton declined and squirmed away from
him.
4 No. 05-3891
After the first instance of physical contact, Patton began
to have panic attacks. Moreover, she became very ner-
vous whenever Ramey was around her. She was worried all
the time at work that Ramey would “sneak up” and touch
her. She felt that her work environment was unsafe and she
spent her days in fear, looking over her shoulder for Ramey.
Nevertheless, Patton also testified at her deposition that
the stress did not affect her ability to do her job in a timely
manner. In fact, she thought the stress made her work
harder and faster.
At the time of these events, the Elkhart plant was in
the process of being phased out and all of its employees
were either being terminated or moved to a new plant
in Goshen. In November of 2002, Patton was told that
Ramey wanted her to transfer to Goshen. She was not
happy about the assignment because it would interfere with
her children’s daycare schedules. Patton also felt that a
transfer to Goshen would mean more contact with Ramey.
She thought the transfer “was a sexual thing and [Ramey]
wanted [her] close to him.” She requested to stay at
Elkhart, but Ramey refused. When she first reported to
work at Goshen on a Monday morning, Ramey was waiting
at the door to greet her. He put his arm around her waist,
letting his hand fall down toward her buttocks, and guided
her while saying “you sure brighten up the place.”
Not everyone at Goshen was so happy to see Patton.
Another employee had been demoted because of Patton’s
arrival. An angry confrontation ensued on Patton’s sec-
ond day of work, with that employee claiming that Patton
was being favored because of a sexual relationship with
Ramey. After this incident Patton went to Miller (who had
previously been transferred to Goshen) crying. He advised
Patton to go back to the Elkhart plant to discuss the
situation with Weaver. Patton left for Elkhart, but she
was afraid she might run into Ramey. So instead of just
going into the plant, she went to a security checkpoint
No. 05-3891 5
outside of the plant and asked them to call for Weaver to
come meet her. Weaver did not come, but Ramey did, and
he told her to go back to work at the Goshen plant. Patton
went home, and never returned to work at Keystone.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, viewing all facts in the light most favorable to
Patton. Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 900 (7th
Cir. 2005). We are asked to decide whether Patton was
subjected to a “hostile work environment,” and, if so,
whether that environment was sufficiently egregious so
as to justify a finding of constructive discharge.
Title VII protects against employees being subjected to a
workplace so permeated with harassment on the basis
of sex that the conditions of employment are altered and
a “hostile” (or “abusive”) work environment is created. Id.
at 902 (citations omitted). “The work environment cannot be
described as ‘hostile’ for purposes of Title VII unless a
reasonable person would find it offensive and the plain-
tiff actually perceived it as such.” Hostetler v. Quality
Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000) (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998)).
The district court assumed Patton subjectively found her
workplace to be hostile, and Keystone does not take issue
with that ruling. Thus, our only task is to determine
whether a reasonable person would have considered
Patton’s work environment hostile. We perform that task by
evaluating all the circumstances. Harris v. Forklift Sys.,
Inc, 510 U.S. 17, 21-23 (1993).
Not all offensive conduct violates federal law; Title VII is
not a civility code. Hostetler, 218 F.3d at 807 (citing Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).
6 No. 05-3891
A hostile work environment is created when the conduct at
issue is “sufficiently severe or pervasive to alter the condi-
tions of the [victim’s] employment and create an abusive
working environment.” Saxton v. Am. Tel. & Tel. Co., 10
F.3d 526, 533 (7th Cir. 1993) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65 (1986) (internal quotations
omitted)). 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 . . . .
Bakersville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995) (citations omitted). One very severe act of harassment
might create a hostile environment, Hostetler, 218 F.3d at
808, but that would be the rare case. In the typical case, it
is a combination of severity and frequency that reaches the
level of actionable harassment.
The conduct alleged in this case occurred over the course
of approximately one month and consists of (1) four in-
stances of physical contact, (2) a few sexually charged
comments, and (3) alleged stalking. The most serious of
these is the inappropriate touching. When entering a
workplace, reasonable people expect to have their autonomy
circumscribed in a number of ways; but giving up control
over who can touch their body is usually not one of them.
With that being said, it is certainly true that “[p]hysical
harassment lies along a continuum just as verbal harass-
ment does.” Id. The mere existence of physical contact does
not create a hostile environment. Casual contact that might
be expected among friends—“[a] hand on the shoulder, a
brief hug, or a peck on the cheek”—would normally be
No. 05-3891 7
unlikely to create a hostile environment in the absence of
aggravating circumstances such as continued contact after
an objection. Id. And “[e]ven more intimate or more crude
physical acts—a hand on the thigh, a kiss on the lips, a
pinch of the buttocks— may be considered insufficiently
abusive to be described as ‘severe’ when they occur in
isolation.” Id. (citations omitted). But when the physical
contact surpasses what “(if it were consensual) might be
expected between friendly coworkers . . . it becomes increas-
ingly difficult to write the conduct off as a pedestrian
annoyance.” Id.It is very important to focus intently on the specific
circumstances of physical harassment—a kiss is not
necessarily just a kiss. As we have noted, there is a differ-
ence between a peck on the cheek and a kiss on the lips.
And there may be circumstances surrounding a kiss on the
lips that distinguish it greatly from the kind of inappropri-
ate, but not egregious physical contact that is insufficient,
in isolation, to create a hostile environment. Hostetler is a
good example: the “co-worker did not simply steal a quick
kiss from [the plaintiff’s] lips, but, holding her face in his
hands, forced his tongue into her mouth.” Id. at 809. The
factual nuances can be significant with any type of harass-
ment, but this is especially so with instances of physical
contact, which have the potential to be among the most
severe and psychologically damaging types of sexual
harassment.
In granting summary judgment for Keystone, the dis-
trict court relied upon cases of ours illustrating the
middle part of the continuum of physical harassment: acts
such as a hand on the thigh, which, though inappropriate,
do not constitute actionable harassment so long as they
occur in isolation. Here, two instances of physical con-
tact—the touch of Patton’s leg, and the arm around the
waist while walking her into the Goshen plant—likely
8 No. 05-3891
fall into this middle category. But the instance where
Ramey put his hand up Patton’s shorts does not.
The conduct described by Patton was not a mere touching
of the thigh; Ramey (according to Patton) ran his hand all
the way up her inner thigh, under her shorts until he
touched her underwear, at which point Patton was able to
break the contact. “We have previously recognized that
direct contact with an intimate body part constitutes one of
the most severe forms of sexual harassment.” Worth v. Tyer,
276 F.3d 249, 268 (7th Cir. 2001) (citations omitted). In
Worth, we held that the touching of the “breast near the
nipple for several seconds is severe enough” to constitute a
hostile environment by itself. See id. Keystone states
in a conclusory manner that what Ramey did to Patton was
not as severe as what happened in Worth, but we do not
think there is any relevant difference. The record estab-
lishes that Ramey’s hand was under Patton’s shorts, on her
inner thigh, and touching her underwear. If Ramey touched
her vagina, then his conduct would constitute not only
actionable sexual harassment but possibly criminal sexual
assault as well. But even if he did not go that far, viewing
the facts in the light most favorable to Patton, Ramey’s
hand was on Patton’s inner thigh, under her shorts, and
very near her vagina. We have no difficulty describing that
as contact with an “intimate body part,” as the term was
used in Worth.
Putting aside the definition of “intimate body part,” this
intentional physical intrusion in such close proximity to the
most intimate areas of a person’s body cannot be disre-
garded as a “pedestrian annoyance.” Hostetler, 218 F.3d at
808. Nor is it the sort of middle-of-the-continuum physical
contact we have held insufficient in isolation to constitute
a hostile environment. See, e.g., McPherson v. City of
Waukegan, 379 F.3d 430, 434, 439 (7th Cir. 2004) (fact of
supervisor pulling back plaintiff’s shirt once to see the type
of bra she was wearing insufficient); Hilt-Dyson v. City of
No. 05-3891 9
Chicago, 282 F.3d 456, 459, 463-64 (7th Cir. 2002) (supervi-
sor’s rubbing of back and shoulders, which ceased after
plaintiff complained); Adusumilli v. City of Chicago, 164
F.3d 353, 361-62 (7th Cir. 1998) (“four isolated incidents
in which a co-worker briefly touched her arm, fingers, or
buttocks”); Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 706-
08 (7th Cir. 1995) (one instance where supervisor rubbed
foot against plaintiff’s leg and another where he grabbed
plaintiff’s buttocks); Weiss v. Coca-Cola Bottling Co., 990
F.2d 333, 337 (7th Cir. 1993) (assuming, despite contradic-
tory deposition testimony, that two attempts by a supervi-
sor to kiss the plaintiff were insufficient).
Ramey’s groping of Patton under her shorts might be
sufficient alone to create an abusive working environment.
But it was not the sole act. Ramey had already raised the
alleged rumor of a sexual affair between himself and
Patton. At least two people—Patton and Miller—agreed
that Ramey leered at her in an obsessive manner. And on
three more occasions he exploited the proximity to Patton
provided by his managerial position to touch her. Signifi-
cantly, one of these acts occurred in the isolated back
bedroom of an RV. Ramey approached Patton from behind,
squatted down behind her, put his arm on Patton’s back
with his hand up by her neck, and whispered into her ear
his desire to have a drink with her. We think these facts,
when considered in their totality, easily make reasonable
Patton’s constant fear that while she was working alone
in the RVs Ramey would “sneak up” and touch her in a
sexual manner or worse. A reasonable jury could find that
Patton was subjected to a hostile work environment.
That does not end our analysis. We must also consider
whether this hostile environment resulted in a constructive
discharge. “The ‘working conditions for constructive dis-
charge must be even more egregious than the high standard
for hostile work environment because . . . an employee is
10 No. 05-3891
expected to remain employed while seeking redress.’ ”
McPherson, 379 F.3d at 440 (quoting Robinson v.
Sappington, 351 F.3d 317, 336 (7th Cir. 2003)). To maintain
a claim for constructive discharge, Patton must show that
her working conditions were “so intolerable that a reason-
able person would have felt compelled to resign.” Pa. State
Police v. Suders, 542 U.S. 129, 147 (2004) (citations omit-
ted).
We have previously held that a “credible death threat that
signals grave danger to the plaintiff’s bodily integrity . . .
can constitute grounds for finding constructive discharge.”
Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1050 (7th Cir.
2000) (citations omitted). While that statement is certainly
not meant to set a floor, its focus on serious physical harm
to one’s body is illustrative of one general circumstance
meeting this higher standard for harassment. When it
becomes reasonable to fear serious physical harm, it
becomes reasonable to quit immediately rather than seek
redress while on the job. See, e.g., Taylor v. W. & S. Life Ins.
Co., 966 F.2d 1188, 1191, 1198-99 (7th Cir. 1992) (finding
constructive discharge where harassment included a
supervisor brandishing a pistol and holding it to the
plaintiff’s head); Brooms v. Regal Tube Co., 881 F.2d 412,
417, 423 (7th Cir. 1989) (finding constructive discharge
where severe harassment culminated with a co-worker
grabbing the plaintiff and threatening to kill her).
We think this case, while possibly falling short of the
conduct in Taylor and Brooms, meets the standard for a
constructive discharge. The picture painted here is not that
of an employee offended by a boorish supervisor, or even
that of an employee having his or her emotional resolve
seriously chipped away on a daily basis by a working
environment riddled with sexual harassment. This case
presents more: a reasonable fact finder could agree with
Patton’s fear that her supervisor was an obsessed man
No. 05-3891 11
who—based on previous acts showing no regard for Patton’s
right to control who could touch intimate areas of her
body—was capable of, and desirous of, physically assaulting
her in a serious way. We need not conclude that a rape or
other assault was likely, but only whether a reasonable fact
finder could find that Patton should have quit immediately
to protect herself. We think the answer is yes.
III. CONCLUSION
Accordingly, we REVERSE the grant of summary judgment
and REMAND for trial.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-06