Pearl Henyard v. MV Transportation ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2021*
Decided May 20, 2021
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-3462
PEARL HENYARD, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division.
v. No. 1:15-CV-10835
MV TRANSPORTATION & PACE, THE Edmond E. Chang,
SUBURBAN BUS DIVISION OF THE Judge.
REGIONAL TRANSPORTATION AUTHORITY,
Defendants-Appellees.
ORDER
Pearl Henyard, a former bus driver, sued her former employer for the allegedly
harassing acts of a coworker and a manager and for using the bus’s security camera to
record her private conversations surreptitiously. The district court entered summary
judgment for the defendants. It determined that no reasonable jury could conclude that
*We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-3462 Page 2
the employer was liable for Henyard’s coworker’s harassing actions, which ceased as
soon as the employer learned about them, or for the manager’s actions, which were
neither severe nor based on Henyard’s sex. Nor could a reasonable jury find that the
employer secretly recorded Henyard’s private conversations using the bus’s camera,
which flashes a light when recording. We agree with these conclusions and thus affirm.
We draw the facts from the summary-judgment record and view them in the
light most favorable to Henyard. Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir.
2018). Henyard began working in early 2014 as a bus driver for MV Transportation, a
company that contracts with Pace, the Suburban Division of the Regional
Transportation Authority to provide transportation for schools, universities, and
corporations around Chicago. Henyard voluntarily resigned from her employment with
MV after an accident on the job in August 2015.
Over the two years that Henyard was employed with MV, one of her coworkers
behaved in ways that Henyard found offensive. This female coworker called her a “cute
chocolate girl,” made comments that Henyard “missed” and “liked” her, laughed
whenever Henyard was nearby, and once patted Henyard on the rear end with a piece
of paper. Henyard complained to her direct supervisor, and afterward she no longer
had communication or contact with this coworker.
Henyard also had trouble with one of her managers at MV, Jericho Worthy,
describing four interactions with him that she experienced as harassing. First, one time,
Worthy had all employees, male and female, sign a document concerning a boy who
was hit by a bus; Henyard believed that Worthy fabricated the story, yet she had to sign
the document anyway. Second, Worthy once tugged on Henyard’s scarf while she was
wearing it. Another time, Henyard requested personal time off work and Worthy did
not want to give it to her, though he did. Finally, Worthy once delayed approving
Henyard’s holiday pay, and so Henyard received that money late.
Henyard also believes that MV surreptitiously recorded her while she was
driving. Henyard’s bus, like all MV buses, had a camera installed that makes short
video and audio recordings. The camera is programmed to automatically record a
20-second video whenever there is a collision, and the bus driver can also manually
turn on the camera. The camera flashes red and green lights to indicate when it is
recording. Henyard often saw the lights on her camera flashing, though there had been
no collision and she had not intentionally turned on the device.
No. 20-3462 Page 3
After resigning, Henyard sued MV and Pace. (In the joint answer, Pace denied
being Henyard’s employer, but it never sought judgment on that ground, so we refer to
the “defendants” collectively.) The district court twice recruited counsel to represent
Henyard, but she rejected each of them and filed an amended complaint pro se. The
court dismissed several of her claims—including that the defendants tortured her in
violation of federal of criminal law and conspired with a hospital she once attended to
inject her with a foreign substance without her consent—and allowed her to proceed on
two: that the defendants were liable for the allegedly hostile work environment created
by Henyard’s coworker and manager, see Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-5, and that the defendants had secretly recorded her while she was on the job, in
violation of Illinois’s prohibition against eavesdropping, 720 ILCS 5/14-2(a)(1);
id. at 5/14-6 (establishing civil remedies).
A month after fact discovery closed, and with the summary-judgment deadline
due in another month, Henyard moved to reopen discovery so that she could obtain
additional documents, including trip logs and inspection reports on the buses she
drove. The defendants opposed the motion, explaining that they already told Henyard
they objected to her requests and offered to meet and confer, but she refused. The
district court denied the motion, concluding that Henyard had offered no explanation
for her delay in seeking these documents and thus lacked good cause for an extension.
The district court then entered summary judgment for the defendants. The court
explained that, even if the coworker’s behavior created a hostile work environment, the
defendants could not be liable because the record showed that as soon as MV learned
about the offensive behaviors, all interactions between the coworker and Henyard
ceased. As for the manager, the court continued, there was no evidence that the
allegedly harassing acts were based on Henyard’s sex, were severe or pervasive, or
resulted in an adverse employment action that would trigger employer liability. Finally,
regarding the eavesdropping claim, the court explained that there was no evidence of a
secret recording of Henyard’s private conversations: Henyard knew when the camera
was recording because it would flash colors, and she lacked evidence that even a single
private conversation had been captured.
On appeal, Henyard first challenges the entry of summary judgment on her
hostile work environment claim. To defeat the defendants’ motion, Henyard had to
furnish evidence that her work environment was objectively and subjectively offensive,
the harassment was based on her sex and was severe or pervasive, and there is a basis
for the employer’s liability. Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018).
No. 20-3462 Page 4
No reasonable jury could conclude that the defendants are liable for the
behaviors of the coworker who patted Henyard’s rear and made inappropriate
comments. As the district court explained, even if those behaviors were severe or
pervasive enough to create a hostile work environment (we are skeptical, see, e.g.,
Swyear v. Fare Foods Corp., 911 F.3d 874, 881–82 (7th Cir. 2018)), only an employer that is
negligent in discovering or remedying a coworker’s harassment can be liable. See Vance
v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). The undisputed record shows that
Henyard complained to MV about her coworker’s behavior, and the behavior stopped.
Though it is not evident why the offending behavior ceased, no reasonable jury could
conclude that MV was negligent in stopping it once informed.
Nor could a reasonable jury conclude that Worthy, Henyard’s manager, created a
hostile work environment based on Henyard’s sex. Employers are strictly liable for a
supervisor’s harassing conduct when it results in a tangible employment action (such as
firing, reassignment, or a significant change in benefits), see Vance, 133 S. Ct. at 2441–42,
but Henyard presents no evidence of any. And, although employers can be liable even
without a tangible employment action, id. at 2442, Henyard cannot establish that
Worthy created a hostile work environment. His actions—tugging at her scarf,
reluctantly approving her time off, making her (and male employees) sign a document,
and causing a delay in her receipt of holiday pay—were infrequent and did not involve
the threats, physical contact, or humiliation that show severe or pervasive harassment.
See Swyear, 911 F.3d 881. Moreover, Henyard speculated, but produced no evidence,
that any of these actions was based on her sex. See Skiba v. Illinois Cent. R.R. Co.,
884 F.3d 708, 721 (7th Cir. 2018) (speculation cannot defeat summary judgment).
Henyard also appeals the entry of summary judgment on her eavesdropping
claim under Illinois law, but that challenge fares no better. The state statute, 720 ILCS
5/14-2(a)(i), prohibits intentionally and surreptitiously overhearing or recording private
conversations without the speaker’s consent. See also id. 5/14-6 (civil remedies). Though
Henyard says she was having “private” conversations on speakerphone on a public
bus, the statute protects only communications made “under circumstances reasonably
justifying [the] expectation” of privacy. See 720 ILCS 5/14-1. Further, the evidence
shows that, even if the camera recorded when Henyard did not turn it on, the recording
was not secret; Henyard admits she knew when the camera was activated because it
flashed colors. In any case, she lacks evidence that any conversation was, in fact,
recorded.
No. 20-3462 Page 5
Next, Henyard challenges the district court’s dismissal of her retaliation claim on
the defendants’ motion under Federal Rule of Civil Procedure 12(b)(6). Henyard alleged
that sometime soon after she complained about her coworker, a caustic substance flew
out of her bus’s air vent and into her eye. This claim was properly dismissed. She did
not identify anyone responsible for allegedly sabotaging her bus nor allege any basis for
her employer’s supposed liability; nor did she plausibly suggest a causal link—the
timing alone not being one—to her workplace complaint, as she had to do to state a
claim of retaliation under Title VII. See Igasaki v. Illinois Dep’t of Fin. & Prof’l. Regul.,
988 F.3d 948, 959–60 (7th Cir. 2021).
Finally, Henyard challenges the district court’s refusal to reopen discovery so
that she could obtain driving routes, trip logs, and vehicle inspection reports from the
defendants. District courts have broad discretion to manage discovery, and we will
reverse only if the denial was an abuse of discretion and it prejudiced Henyard. Stevo v.
Frasor, 662 F.3d 880, 886 (7th Cir. 2011). Henyard makes no such showing. She tells us
that the documents she sought contained “new information,” but she does not explain
what information she believed they contained that would have supported her claims.
Nor does she explain the fault in the district court’s reasoning that she could have
obtained the information during the discovery period.
We have considered Henyard’s other arguments, including those about other
claims the district court dismissed on the pleadings, and none has merit.
AFFIRMED