Hostetler, Ann M. v. Quality Dining Inc

Court Case Details
  • Case Name: Hostetler, Ann M. v. Quality Dining Inc
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: June 29, 2000
  • Precedential Status: Published
  • Docket #: 98-2386
  • Judges: Per Curiam
  • Nature: civil
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-2386

ANN M. HOSTETLER,

Plaintiff-Appellant,

v.

QUALITY DINING, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 97 C 160--Robin D. Pierce, Magistrate Judge.

Argued January 7, 1999--Decided June 29, 2000

Before FLAUM, EASTERBROOK, and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Ann Hostetler alleges

that a fellow supervisory employee at a South

Bend, Indiana Burger King grabbed her face one

day at work and stuck his tongue down her throat.

On the following day, he tried to kiss her again

and when she struggled to evade him, he began to

unfasten her brassiere, threatening to "undo it

all the way." When Hostetler reported these

incidents to her superiors, her district manager

allegedly remarked that he dealt with his

problems by getting rid of them. Days later,

Hostetler was transferred to a distant Burger

King location. She later filed this sex

discrimination suit against her employer under

Title VII of the Civil Rights Act of 1964, 42

U.S.C. sec. 2000e-2(a)(1), contending that she

had endured a hostile working environment as a

result of the alleged harassment. See Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.

Ct. 2399, 2405 (1986). The district court granted

summary judgment to the defendant, reasoning that

the harassment Hostetler describes was not

severe, see id. at 67, 106 S. Ct. at 2405; Saxton

v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th

Cir. 1993), and that, in any event, her employer

absolved itself of liability by responding to her

complaint with steps reasonably designed to

preclude further harassment, see, e.g.,

Adusumilli v. City of Chicago, 164 F.3d 353, 361

(7th Cir. 1998), cert. denied, 120 S. Ct. 450

(1999). Hostetler v. Quality Dining, Inc., 1998

WL 456436 (N.D. Ind. April 23). Although a finder

of fact might reach the same conclusions after a

trial, we do not believe it appropriate to hold,

as a matter of law, that the alleged harassment

was not severe or that her employer’s response

was non-negligent. We therefore reverse the grant

of summary judgment.

I.

The facts that follow represent a reading of

the record that is favorable to Hostetler. We

have noted some of the factual matters that are

in dispute, but as this case was resolved against

Hostetler on summary judgment, we are of course

obligated to credit her version of events over

the defendant’s. E.g., Valance v. Wisel, 110 F.3d

1269, 1276 (7th Cir. 1997).

Quality Dining, Inc. ("Quality"), through its

subsidiary Bravokilo, Inc., owns some twenty-four

Burger King restaurants in Northern Indiana.

Hostetler began work for Quality in 1993 as a

managerial employee. As a supervisor, Hostetler

was subject to transfer on an as needed basis

among the various restaurants that Quality owned,

and over the next several years, she worked at a

number of different Burger King stores in South

Bend and Mishawaka, Indiana.

In June of 1996, Hostetler was working as a

first assistant supervisor at the Burger King on

Ireland Road in South Bend. As a first assistant,

Hostetler reported to both the store and district

managers. Kim Ridenour was the store manager at

that time. Jim Kochan was the district manager,

and in that capacity looked after all of the

stores in South Bend and Mishawaka.

Hostetler asserts that she was at work on June

3, using the computer in the restaurant’s cash

booth, when Tim Payton, a second assistant

supervisor, grabbed her face and "stuck his

tongue down [her] throat." Hostetler Dep. 44. She

pulled away from him, gathered her belongings,

and left the store at once, although her shift

was not yet complete. She made no report of the

incident to Ridenour at that time.

On the following day, Hostetler was again doing

some work on the computer in the restaurant’s

office. Her back was to the office door, and as

she was preoccupied with the task at hand, she

did not turn when Payton entered the room. He

came up from behind her, took her face in his

hands, and turned it toward him. Thinking that he

was about to kiss her again, Hostetler bent over

and placed her head between her knees. Payton

then placed his hands on her back, grasped her

brassiere, and began to unfasten it. Hostetler

told him to take his hands off her, which

prompted him to laugh and say that "he would undo

it all the way." Hostetler Dep. 48. Payton

managed to unfasten four of the five snaps on

Hostetler’s bra before Sabrina Ludwig, another

store employee, walked into the office. Payton

left the area abruptly.

One other episode requires mention. Either

before the incident of June 3 or after the

incident of June 4--but either way during the

same week as these two incidents--Payton

approached Hostetler as she was serving customers

at the counter and told her, in crude terms, that

he could perform oral sex on her so effectively

that "[she] would do cartwheels." Hostetler Dep.

49.

After the June 4 incident, Hostetler decided to

report the harassment to her superiors. The

ensuing chronology is in some dispute. Hostetler,

Ridenour, and Kochan have all given accounts that

differ in certain respects. Again, as this case

comes to us on summary judgment, we of course are

compelled to credit Hostetler’s recitation of

events.

Hostetler telephoned Ridenour on June 4 and

reported the harassment. Hostetler told Ridenour

that she "didn’t think [Payton] needed to be

fired, he just needed to be talked to." Hostetler

Dep. 62. Ridenour said that she would bring the

matter to Kochan’s attention the next day when

she met with him. Hostetler saw Ridenour the

following day and asked how the discussion had

gone, but Ridenour said that she had forgotten to

mention the harassment. Ridenour again promised

to speak with Kochan, but when Hostetler followed

up with her late in the day on June 6, she had

still not done so. At that point, Hostetler opted

to leave Kochan a voice message. In that message,

which Quality later transcribed, Hostetler

detailed the harassment that had occurred on June

3 and 4 and requested Kochan to "take care of

it."/1

Kochan was on vacation from June 6 through June

9,/2 but he met with Hostetler and Ridenour

regarding the reported harassment on June 10. As

Hostetler recounts the meeting, Kochan accused

her of lying and noted that Payton had denied her

allegations. Kochan asked Hostetler, "Do you know

what I do when I have problems, Ann?" When

Hostetler said she did not, Kochan told her, "I

get rid of them." Hostetler Dep. 67. Hostetler

took Kochan to mean that he might transfer her,

and she pleaded with him not to do so; Kochan

said he would think about it. Then, after noting

that he had a copy of Hostetler’s voice message,

Kochan asked Ridenour whether she had any

problems with Hostetler’s work performance.

Ridenour expressed concern over the fact that

Hostetler had left work early on June 3 (after

Payton had kissed her)./3

On June 12, Quality transferred Hostetler to a

Burger King in Goshen, Indiana. According to

Kochan, the district manager for the Goshen area,

T. K. Brenneman, had asked him whether he could

spare an employee for a store in his district

that was managerially short-staffed. Kochan avers

that he thought of Hostetler, because the Ireland

Road store was "heavy" with supervisory employees

and because he knew that Hostetler and Ridenour

had a personality conflict. Kochan Dep. 34, 36.

Brenneman had also worked with Hostetler before

and purportedly was pleased at the prospect of

having her join his staff. Such transfers are

commonplace at Quality, and Kochan asserts that

the move was not intended to punish her.

Hostetler suspected otherwise, in light of

Kochan’s prior remark about getting rid of his

problems./4

The transfer to Goshen proved to be a hardship

for Hostetler. The commute to and from the Goshen

store consumed two and one-half hours of

Hostetler’s day. At the outset, Hostetler was

assigned to close the store nearly every evening,

which meant that she worked until 4:00 a.m. This

made it difficult for Hostetler, once she

returned home, to rise with her daughters in the

morning. She would also be assigned to work

fourteen to sixteen-hour days and then be

scheduled to return to the store after only six

hours off.

Meanwhile, Hostetler’s transfer left the Ireland

Road Burger King in South Bend with no first

assistant supervisors. None of the second

assistants was qualified for promotion to first

assistant, so Hostetler’s position was left

unfilled. This posed no problem for the store,

Ridenour testified, because second assistants

could perform nearly all functions that first

assistants could. One exception was that only a

first assistant could manage a store without

supervision from the store manager. Thus, to the

extent that Ridenour permitted second assistants

to run the store in her absence, she may have

done so in violation of Quality’s rules.

After six weeks at the Goshen store, Hostetler

asked for another assignment. Hostetler spoke

with Jerry Fitzpatrick, Kochan’s superior, and

complained that the company had sent her to

Goshen as punishment for complaining about

Payton. Fitzpatrick denied her assertion:

I don’t care what happened between you and Mr.

Payton. What happened between you and Mr. Payton,

happened between you and Mr. Payton. All I care

about is resolving our business relationship so

that you can be happy and I can be happy and my

business can be productive.

Hostetler Dep. 84-85./5 Fitzpatrick also

emphasized that Hostetler was a valued employee:

[Y]ou didn’t get transferred because of anything

that you did wrong, Ann. You got transferred

because we need a good player. You’re one of our

best players. You’ve got a future with our

company.

Hostetler Dep. 84. "Bologna," Hostetler retorted.

Id. "You don’t send your best player off to

another team." Id. Fitzpatrick predicted that she

would "get the point" the following week,

informing her that she would be transferred to

the Lincoln Way East store in Mishawaka and

promoted to store manager. Id. at 85.

Notwithstanding her reassignment and promotion,

Hostetler decided to leave the company. She

resigned in August 1996 and subsequently went to

work for a competing fast food chain. She has

sought counseling for the trauma that she

attributes to the alleged harassment that gave

rise to this suit, and at the time of her

deposition was taking Prozac "because [her]

nerves [were] a wreck." Hostetler Dep. 92.

After reviewing the record, the district court

concluded that Quality was entitled to summary

judgment on either of two grounds. The court

noted that a hostile environment claim requires

proof of harassment sufficiently severe or

pervasive to alter the plaintiff’s working

environment. Hostetler v. Quality Dining, Inc.,

1998 WL 456436, at *8, quoting Meritor Sav. Bank,

FSB v. Vinson, supra, 477 U.S. at 67, 106 S. Ct.

at 2405. The small number of acts alleged, taking

place as they did over a matter of days, ruled

out any argument that the harassment was

pervasive. 1998 WL 456436, at *11; see Saxton v.

American Tel. & Tel. Co., supra, 10 F.3d at 533

("’relatively isolated’ instances of non-severe

misconduct will not support a hostile environment

claim"), quoting Weiss v. Coca-Cola Bottling Co.

of Chicago, 990 F.2d 333, 337 (7th Cir. 1993).

In the district court’s view, the harassment of

which Hostetler complained could not be described

as severe. 1998 WL 456436, at *11. In previous

cases, we had deemed certain manifestations of

physical harassment--including attempts to kiss

a co-worker, touching her on the shoulder or

thigh, and jumping out of bushes and attempting

to grab the plaintiff--not to be severe. See

Weiss, 990 F.2d at 337; Saxton, 10 F.3d at 533-

34. The district court viewed the acts described

by Hostetler as comparable. 1998 WL 456436, at

*10. The court also cited Hostetler’s own

testimony as evidence that the conduct in

question fell into the category of merely vulgar

and inappropriate behavior rather than actionable

harassment. Id. at *11. In describing the voice

mail she had left Kochan, Hostetler had

testified:

I told him--I kind of chuckled and said, "We all

know that I’m gifted on top. I don’t have one or

two snaps on my bra." I said, "I don’t think that

he should be fired, but you definitely need to

speak to him, because we wouldn’t want somebody’s

father or mother coming in here and killing this

man because he’s messed with their kid."

Hostetler Dep. 65. In the court’s view,

"[Hostetler’s] own comments speak more to the

inappropriateness of Mr. Payton’s remarks and

actions, rather than to a severe, hostile, or

intimidating environment." 1998 WL 456436, at

*11.

Alternatively, assuming that Payton’s actions

were severe enough to constitute actionable

harassment, Quality could not be held liable for

those actions because, once notified of the

harassment, it "responded promptly and took

reasonable steps to resolve the problem." Id. at

*12, citing Baskerville v. Culligan Int’l Co., 50

F.3d 428, 431 (7th Cir. 1995). The court noted

first that Kochan was the individual responsible

for handling personnel problems, and as soon as

he had received Hostetler’s voice message, he had

scheduled meetings with the persons involved for

the morning of his return to work from vacation.

1998 WL 456436, at *13. Second, although

Hostetler suggested that Quality had not

disciplined Payton appropriately, the court noted

that she herself had said he should not be fired,

but rather "talked to," and talked to he was. Id.

Finally, the court rejected Hostetler’s

contention that her transfer to Goshen was a

negligent response to the harassment. Kochan’s

deposition testimony established that the company

transferred Hostetler at least in part in order

to accommodate the need for additional managerial

employees at the Goshen restaurant and to resolve

a personality conflict between Hostetler and

Ridenour. Id.; see n.7, infra. Although the

transfer imposed some hardships on Hostetler, "it

also served a legitimate business purpose while

separating her from the accused harasser." 1998

WL 456436, at *14.

II.

"Summary judgment is appropriate if there is no

genuine issue of material fact and the moving

party is entitled to judgment as a matter of

law." Shermer v. Illinois Dep’t of Transp., 171

F.3d 475, 477 (7th Cir. 1999). We review the

district court’s summary judgment ruling de novo,

construing the record in the light most favorable

to the non-movant, Hostetler. E.g., Dawn Equip.

Co. v. Micro Trak Sys., Inc., 186 F.3d 981, 986

(7th Cir. 1999). So long as no reasonable finder

of fact could find for Hostetler, summary

judgment is mandatory. Fed. R. Civ. P. 56(c); Matney

v. County of Kenosha, 86 F.3d 692, 695 (7th Cir.

1996). If, however, the record leaves room for a

finding in Hostetler’s favor, then we must

reverse the grant of summary judgment and remand

for a trial. See Bultemeyer v. Fort Wayne

Community Schools, 100 F.3d 1281, 1283 (7th Cir.

1996), citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986).

A.

As the district court recognized, sexual

harassment is actionable under Title VII only

when it is "sufficiently severe or pervasive ’to

alter the conditions of [the victim’s] employment

and create an abusive working environment.’"

Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. at

2405, quoting Henson v. City of Dundee, 682 F.2d

897, 904 (11th Cir. 1982). Whether the harassment

rises to this level turns on a constellation of

factors that include "the frequency of the

discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a

mere offensive utterance; and whether it

unreasonably interferes with an employee’s work

performance." Harris v. Forklift Sys., Inc., 510

U.S. 17, 23, 114 S. Ct. 367, 371 (1993); see also

Faragher v. City of Boca Raton, 524 U.S. 775,

787-88, 118 S. Ct. 2275, 2283 (1998). We also

assess the impact of the harassment upon the

plaintiff’s work environment both objectively and

subjectively. The work environment cannot be

described as "hostile" for purposes of Title VII

unless a reasonable person would find it

offensive and the plaintiff actually perceived it

as such. Faragher, 118 S. Ct. at 2283, citing

Harris, 510 U.S. at 21-22, 114 S. Ct. 370-71.

We may make short work of the subjective

inquiry, for the record readily supports the

inference that Hostetler perceived her work

environment as hostile as a result of the

harassment. She left work abruptly after the June

3rd incident, when Payton kissed (or tongued)

her. The following day, when Payton approached

Hostetler from behind, grasped her face, and

turned it toward him, she immediately bent over

and placed her head between her knees in an

effort to avoid a second "kiss." Promptly after

that encounter, she reported Payton’s conduct to

Ridenour. Moreover, after she perceived that

Ridenour was not pursuing the matter in a timely

matter with Kochan, Hostetler left a voice

message for him herself, reiterating that she

found Payton’s behavior "unacceptable" and asking

Kochan to "take care of it." See n. 1, supra.

These actions bespeak concern over Payton’s

actions and an unwillingness to tolerate further

harassment.

Whether Hostetler’s work environment objectively

could be described as hostile is a somewhat

closer question. The Supreme Court has reminded

us that "the objective severity of the harassment

should be judged from the perspective of a

reasonable person in the plaintiff’s position,

considering ’all the circumstances.’" Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81,

118 S. Ct. 998, 1003 (1998), quoting Harris, 510

U.S. at 23, 114 S. Ct. at 371. That assessment

also must be made with "an appropriate

sensitivity to social context," 523 U.S. at 82,

118 S. Ct. at 1003, lest Title VII become a

"general civility code for the American

workplace," id. 80, 118 S. Ct. at 1002. As we

observed in Baskerville:

Drawing the line is not always easy. 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

pictures. Meritor Savings Bank v. Vinson, 477

U.S. 57, 67, 106 S. Ct. 2399, 2405-06, 91 L.Ed.2d

49 (1986); Harris v. Forklift Systems, Inc., 510

U.S. 17, 21, 114 S. Ct. 367, 370, 126 L.Ed.2d 295

(1993); Carr v. Allison Gas Turbine Division, 32

F.3d 1007, 1009-10 (7th Cir. 1994). On the other

side lies the occasional vulgar banter, tinged

with sexual innuendo, of coarse or boorish

workers. Meritor Savings Bank v. Vinson, supra,

477 U.S. at 61, 106 S. Ct. at 2402-03; Rabidue v.

Osceola Refining Co., 805 F.2d 611, 620-21 (6th

Cir. 1986); Katz v. Dole, 709 F.2d 251, 256 (4th

Cir. 1983). We spoke in Carr of "the line that

separates the merely vulgar and mildly offensive

from the deeply offensive and sexually

harassing." 32 F.3d at 1010. It is not a bright

line, obviously, this line between a merely

unpleasant working environment on the one hand

and a hostile or deeply repugnant one on the

other . . . .

50 F.3d at 430-31.

We have no doubt that the type of conduct at

issue here falls on the actionable side of the

line dividing abusive conduct from behavior that

is merely vulgar or mildly offensive. Two of the

three acts at issue in this case involved

unwelcome, forcible physical contact of a rather

intimate nature. Having a co-worker insert his

tongue into one’s mouth without invitation and

having one’s brassiere nearly removed is not

conduct that would be anticipated in the

workplace, and certainly not in a family

restaurant. A reasonable person in Hostetler’s

position might well experience that type of

behavior as humiliating, and quite possibly

threatening. See Harris, 510 U.S. at 23, 114 S.

Ct. at 371. Even the lewd remark that Payton

allegedly made to Hostetler was more than a

casual obscenity. Referring as it did to a

hypothetical sexual act between Hostetler and

Payton, it readily could be interpreted as an

(uninvited) sexual proposition. These were not,

in sum, petty vulgarities with the potential to

annoy but not to objectively transform the

workplace to a degree that implicates Title VII.

A workplace rife with the behavior Hostetler

describes could readily be described as a hostile

working environment. See generally Harris, 510

U.S. at 21-22, 114 S. Ct. at 370-71.

The more specific, and more difficult, question

that we must answer is whether the behavior was

so serious that the finder of fact could label

Hostetler’s work environment hostile

notwithstanding the limited number of the acts

involved. Harassment need not be severe and

pervasive to impose liability; one or the other

will do. Smith v. Sheahan, 189 F.3d 529, 533 (7th

Cir. 1999); see Harris, 510 U.S. at 21, 114 S.

Ct. at 370; Meritor, 477 U.S. at 66, 106 S. Ct.

at 2405. There is no "magic number" of incidents

required to establish a hostile environment. Doe

v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445

(7th Cir. 1994), citing Rodgers v. Western-

Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.

1993). We have repeatedly recognized that even

one act of harassment will suffice if it is

egregious. See Smith, 189 F.3d at 533-34; DiCenso

v. Cisneros, 96 F.3d 1004, 1009 (7th Cir. 1996);

Daniels v. Essex Group, Inc., 937 F.2d 1264,

1273-74 & n.4 (7th Cir. 1991); King v. Board of

Regents of Univ. of Wis. Sys., 898 F.2d 533, 537

(7th Cir. 1990); Bohen v. City of East Chicago,

Indiana, 799 F.2d 1180, 1186-87 (7th Cir. 1986);

see also Guess v. Bethlehem Steel Corp., 913 F.2d

463, 464 (7th Cir. 1990) (implicitly assuming

single act sufficient to establish hostile

environment).

The two principal acts at issue in this case

were physical, rather than verbal harassment.

Physical harassment lies along a continuum just

as verbal harassment does. There are some forms

of physical contact which, although unwelcome and

uncomfortable for the person touched, are

relatively minor. Cumulatively or in conjunction

with other harassment, such acts might become

sufficiently pervasive to support a hostile

environment claim, but if few and far between

they typically will not be severe enough to be

actionable in and of themselves. A hand on the

shoulder, a brief hug, or a peck on the cheek lie

at this end of the spectrum. Even 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. See Adusumilli v. City of Chicago,

supra, 164 F.3d at 361-62; Koelsch v. Beltone

Elecs. Corp., 46 F.3d 705, 706-07, 708 (7th Cir.

1995); Saxton, 10 F.3d at 528, 534; Weiss, 990

F.2d at 337; Scott v. Sears, Roebuck & Co., 798

F.2d 210, 211-12, 213-14 (7th Cir. 1986). But the

acts described in these cases lie at the outer

boundaries of conduct that can be labeled non-

severe at the summary judgment stage. When the

harassment moves beyond the sort of casual

contact which (if it were consensual) might be

expected between friendly co-workers, and

manifests in more intimate, intrusive forms of

contact, it becomes increasingly difficult to

write the conduct off as a pedestrian annoyance.

Recall that the types of physical acts we are

discussing in this case already place us within

the realm of conduct that unquestionably is

harassing. See Baskerville, 50 F.3d at 430-31.

The sole question is whether these acts are

severe enough, without the added weight of

repetition over time or cumulation with other

acts of harassment, to stand alone as the basis

for a harassment claim. Holding such acts not to

be severe as a matter of law is another way of

saying that no reasonable person could think them

serious enough to alter the plaintiff’s work

environment. See Harris, 510 U.S. at 21-22; 114

S. Ct. at 370; Bermudez v. TRC Holdings, Inc.,

138 F.3d 1176, 1181 (7th Cir. 1998). That

proposition becomes dubious when the conduct at

issue involves unwelcome contact with the

intimate parts of one’s body. Cf. DiCenso, 96

F.3d at 1009 (noting that harasser "did not touch

an intimate body part").

The physical, intimate, and forcible character

of the acts at issue here persuades us that a

factfinder could deem Hostetler’s work

environment hostile. Accepting Hostetler’s

version of events as true, her co-worker did not

simply steal a quick kiss from her lips, but,

holding her face in his hands, forced his tongue

into her mouth. When Hostetler subsequently used

her body to shield herself from an apparent

repeat of that intrusion, Payton began to

unfasten her bra, threatening to do so completely

and stopping only when another employee entered

the office. These acts exceed the kind of fumbled

and inappropriate attempts to kiss or embrace the

plaintiff that we dealt with in Saxton, Weiss,

and like cases. A factfinder reasonably could

interpret the alleged course of conduct as

sufficiently invasive, humiliating, and

threatening to poison Hostetler’s working

environment--indeed, overtones of an attempted

sexual assault can be seen in the second incident

in particular.

That Hostetler herself was of the view that

Payton should not be fired, but spoken to--a fact

on which the district court and Quality have

placed some emphasis, 1998 WL 456436, at *11;

Quality Br. at 21-22--does not speak to the

objective severity of the harassment. Even as

evidence of Hostetler’s own thoughts, it bears on

the manner in which Payton was to be disciplined

rather than the gravity of the harassment. It

certainly does not detract from the proposition

that Hostetler subjectively found the harassment

abusive and wanted it stopped, or that a

reasonable person would feel the same. The remark

reflects nothing more than Hostetler’s subjective

perception that talking to Payton would suffice

to achieve that end./6

B.

As this is a case of co-worker harassment,

Quality/7 will not be liable for the hostile

environment absent proof that it failed to take

appropriate remedial measures once apprised of

the harassment. Adusumilli v. City of Chicago,

supra, 164 F.3d at 361, citing Baskerville v.

Culligan Int’l Co., supra, 50 F.3d at 43 132; Doe

v. R.R. Donnelley & Sons Co., supra, 42 F.3d at

446; Guess, 913 F.2d at 465; 29 C.F.R. sec.

1604.1 l(d). Hostetler contends that the

company’s response was negligent in two respects:

first, Ridenour and Kochan waited until June 10,

six days after she first reported the harassment,

to address her complaint; and second, the company

resolved the situation in part by transferring

Hostetler to a highly inconvenient location.

We need not consider whether a six-day delay in

responding to Hostetler’s complaint might be

negligent. An employer is no doubt obligated to

act with dispatch when it is informed that an

employee is effectively assaulting his co-

workers. See Baskerville, 50 F.3d at 432. But in

this case there is no evidence that Hostetler was

in any way injured by Quality’s failure to act

more quickly. There is, for example, no proof to

the effect that the harassment continued after

June 4, when Hostetler first reported the

harassment to Ridenour. It is possible that

Hostetler was verbally harassed in the interim

between June 4 and June 10. We know from

Hostetler’s testimony that either before the June

3rd incident or after the June 4th incident,

Payton purportedly made the lewd remark to

Hostetler as she was waiting on customers. Yet,

given Hostetler’s inability to recall the timing

of that remark more precisely, there is no proof

that the remark, or any other harassment, post-

dated her complaint to Ridenour. See Avery v.

Mapco Gas Prods., Inc., 18 F.3d 448, 453-54 (7th

Cir. 1994). Indeed, the record does not even tell

us whether Hostetler and Payton worked any shifts

together between June 4 and June 10. Cf.

Adusumilli, 164 F.3d at 362 (in some cases, mere

presence of harasser can create hostile work

environment). Under these circumstances, there

would be no point in us determining whether the

circumstances obligated Quality to act more

quickly than Hostetler asserts that it did.

The factfinder could determine that when Quality

did act, one of the steps it took in response to

the harassment allegations was to transfer

Hostetler to another location. That point is

disputed./8 As we have noted, Kochan avers that

he made the transfer decision when Brenneman, the

manager of the Goshen district, told him that he

needed an additional supervisor to cope with a

shortage at the Goshen restaurant. Hostetler

seemed like the logical choice to Kochan because

the Ireland Road store where Hostetler worked had

a surplus of managers, there was a personality

conflict between Hostetler and Ridenour, and

Brenneman knew and liked Hostetler. Nonetheless,

a factfinder might infer from Kochan’s purported

remark to Hostetler two days earlier that he

deals with his problems by getting rid of them

that Kochan was predisposed to transfer Hostetler

out of his district in order to resolve her

complaint. The factfinder might also find it

noteworthy that Kochan chose to transfer

Hostetler notwithstanding the fact that her

departure from the Ireland Road store in South

Bend apparently left no one at that location who

could, consistent with company policy, manage the

store in Ridenour’s absence. We shall therefore

assume for the remainder of our discussion that

Quality did, in fact, transfer Hostetler to

Goshen in whole or in part as a means of

addressing her charge of harassment. The

factfinder might determine otherwise, of course.

In that event, there would be no need to consider

the propriety of the transfer as a remedial

measure. But as this is summary judgment, we

shall proceed on the assumption that the transfer

was made to resolve the situation between

Hostetler and Payton.

Hostetler is not asserting that the transfer

failed to stop the harassment./9 So far as the

record reveals, once Hostetler was transferred,

she never had any contact with Payton again.

Nonetheless, she argues that the transfer was

inappropriate as a remedial measure because it

left her worse off than she was before the

harassment occurred.

The cases recognize that there are some actions

an employer might take in response to a worker’s

complaint of harassment that will, irrespective

of their success in bringing the harassment to a

halt, subject the employer to liability:

A remedial measure that makes the victim of

sexual harassment worse off is ineffective per

se. A transfer that reduces the victim’s wage or

other remuneration, increases the disamenities of

work, or impairs her prospects for promotion

makes the victim worse off. Therefore such a

transfer is an inadequate discharge of the

employer’s duty of correction.

Guess v. Bethlehem Steel Corp., supra, 913 F.2d

at 465; see also Steiner v. Showboat Op. Co., 25

F.3d 1459, 1464 (9th Cir. 1994), cert. denied, 513

U.S. 1082, 115 S. Ct. 733 (1995); Ellison v.

Brady, 924 F.2d 872, 882 (9th Cir. 1991).

Negligence of this nature exposes the employer

not to liability for what occurred before the

employer was put on notice of the harassment, but

for the harm that the employer inflicted on the

plaintiff as a result of its inappropriate

response. Recall that in the usual case of co-

worker harassment, the employer becomes liable to

the employee only when it knows or should know

that wrongdoing is afoot and yet fails to take

steps reasonably designed to stop it. See Guess,

913 F.2d at 465. In that scenario, the employer

(provided it exercised due care in hiring the

harasser) typically is held to account only for

injuries that occur after the point at which it

is on notice of the harassment--in other words,

injuries that the employer could have prevented

but did not. Where, however, the employer takes

action that puts a stop to the harassment, but in

a way that inappropriately forces the plaintiff

to bear the costs, it is the plaintiff’s loss in

pay, her demotion, or the other "disamenities of

work" for which she is entitled to compensation.

Here, then, Quality does not face liability for

the harm that Payton allegedly inflicted on

Hostetler. So far as the record reveals, Quality

had no reason to know that Payton was mistreating

anyone until Hostetler reported the harassment to

Ridenour. Moreover, as we have noted, there is no

proof that the harassment persisted after

Hostetler put Quality on notice of Payton’s

alleged misconduct. Supra at 17-18. The transfer

to Goshen appears to have terminated all contact

between Hostetler and Payton and thus foreclosed

any opportunity for the harassment to recur. The

company’s asserted liability instead springs from

the transfer itself. If, as Hostetler argues,

Quality transferred her as a means of resolving

the harassment, and if the transfer was a per se

negligent response as discussed in Guess, then

Quality could be held liable for the harm that

the transfer caused her.

Based on the record before us, the factfinder

could conclude that the transfer to Goshen left

Hostetler materially worse off, and that the

decision to transfer her was therefore a

negligent response to the alleged harassment.

Hostetler suffered no loss in pay or rank, nor

does it appear that her prospects for promotion

diminished--on the contrary, she was promoted to

store manager when, at her request, she was

transferred back to the South Bend area. On the

other hand, by Hostetler’s description (which at

this point is undisputed), the new assignment

brought with it a lengthy commute and a marathon

work schedule. In these concrete respects, the

posting objectively could be viewed as a

burdensome one. As a means of remediating the

harassment Hostetler claimed to have endured,

then, the transfer could be deemed ineffective

per se. See Steiner, 25 F.3d at 1464 ("a victim

of sexual harassment should not have to work in

a less desirable location as a result of the

employer’s remedial plan"), citing Intlekofer v.

Turnage, 973 F.2d 773, 779-80 [& n.9] (9th Cir.

1992) (opinion of Hall, J.), and Ellison, 924

F.2d at 882; Quiroz v. Ganna Constr., 1999 WL

59836, at *22 (N.D. Ill. Jan. 27) (Coar,

J.)./10

That Quality had the right to transfer

Hostetler, and that such transfers were

commonplace, does not stand in the way of such a

finding. Quality’s authority to transfer

Hostetler is not in question; the reasonableness

of the transfer as a remedial measure is. Title

VII obligates an employer to take appropriate

corrective measures when it knows or has reason

to know that one of its employees is sexually

harassing another. E.g., Guess, 913 F.2d at 465.

The employer breaches the duty of care it owes to

the harassed employee when the steps it takes in

response to the harassment render her job

demonstrably and significantly less rewarding or

desirable. The harassment might cease as a result

of these measures, but the plaintiff is

effectively made to bear the costs. See id.

III.

Questions of material fact persist in this case

as to the objective severity of the harassment

alleged and the propriety of the defendant’s

response. We therefore REVERSE the entry of summary

judgment in favor of Quality and REMAND for a

trial.

/1 The transcript of Hostetler’s message (the

accuracy of which is not in dispute) reads as

follows:

There is a situation that occurred this week in

the restaurant and I didn’t bring it to your

attention right away. I took it to Kim (Ridenour)

and she hasn’t been able to discuss it with you

so now I am notifying you because it has been 2

days and you need to know about it.

On Monday (June 3, 1996), I was in the back d.t.

and Tim (Payton) came back there and I was

running a report and he was talking to me. He

grabbed my face and put his lips on mine. I

dismissed it, came home and told Mark

(boyfriend). I didn’t tell him that he actually

put his lips on me but I told him he grabbed my

face and tried to kiss me. He asked me if I said

anything and I told him no, maybe it was a one

time thing.

The next day (June 4, 1996), I was doing the bank

break, sitting at the computer at the desk and he

came up behind me, grabbed my face again and was

literally pulling on my face and I put my head

between my legs and when I did that he grabbed

the back of my bra and, of course, we all know I

am well gifted up there, and my bra doesn’t have

one or two snaps, it has 5 and all of them except

one were undone and then later on, I was bending

over to get a quarter that fell underneath the

desk and my butt was sticking up and he said--

well that looks real good or something like that.

So I told Kim I can put up with them and I am

used to working in a restaurant with a bunch of

men and that was fine, but there is a point, and

that is you don’t put your hands on me, you don’t

kiss me, and you don’t undo my bra and I told her

that I should be able to handle this myself and

I like Tim, he does a good job and is a hard

worker, but to me that is something that is

unacceptable so I am just letting you know so you

can take care of it. If you have any questions,

I will be in the restaurant tomorrow between 9

and 3. I’ll talk to you later.

R. 27, attachment. We note that Hostetler does

not rely on the remark that Payton purportedly

made on June 4 when she bent over to retrieve a

quarter as evidence of a hostile work

environment.

/2 Ridenour avers that during this period, she began

to investigate Hostetler’s complaint. She spoke

with Hostetler herself, of course, and apparently

two other female employees approached her to

report their own uncomfortable experiences with

Payton. Ridenour also spoke with Sabrina Ludwig,

who by Hostetler’s account had walked into the

office when Payton was unfastening her bra, but

Ridenour cannot recall what, if anything, Ludwig

said about the incident.

/3 Kochan and Ridenour recount the June 10 meeting

differently. Kochan asserts that he and Ridenour

actually met with Hostetler twice on that date.

At the first meeting, according to Kochan,

Hostetler elaborated on her complaint. Kochan

assured her that harassment would not be

tolerated and that an investigation would be

commenced immediately. Kochan and Ridenour later

met with Payton (who denied Hostetler’s

allegations), and Kochan admonished him that even

if events had not transpired "exactly as Ann

said," anything that might be construed as sexual

harassment was inappropriate and if not stopped

would result in disciplinary action. Kochan Dep.

22. Then, according to Kochan, he and Ridenour

met with Hostetler a second time. At that point,

he informed Hostetler that Payton had denied the

allegations, but that he and Ridenour had

apprised him of the company’s policy on sexual

harassment and Payton had promised not to engage

in any behavior "that could be misconstrued as

offensive or sexual harassment at all." Kochan

Dep. 22. Kochan indicates that after this second

meeting with Payton, he briefed Bill Wargo, of

Quality’s human resources department, on the

situation, and Wargo assumed responsibility for

the investigation. Kochan’s understanding was

that Wargo continued to look into the matter

until, at some later date, Payton quit his

employment with Quality.

For her part, Ridenour remembers only one

meeting with Hostetler. Her

version posits an initial meeting between Kochan,

Payton, and herself, during which Payton denied

having harassed Hostetler but was warned that

such behavior was inappropriate and should cease.

Payton "said he was an overly friendly type

person, he liked to give hugs and things like

that, and Jim [Kochan] told him that could be

construed as sexual harassment in some cases."

Ridenour Dep. 26. Ridenour considered Payton to

have been disciplined at that point. Only then,

by Ridenour’s account, did she and Kochan meet

with Hostetler. At that time, Hostetler was

informed that Payton had denied the allegations.

Later that same day, according to Ridenour, she

spoke with Hostetler again, at which time

Hostetler indicated to her that the situation had

been resolved to her satisfaction.

/4 At some time between June 10 and June 12,

Hostetler discovered a bank deposit missing from

the safe at the Ireland Road restaurant. On June

12, the day she was transferred, someone from

Quality’s security department spoke with her

about the missing money and asked her to submit

to a polygraph examination. Hostetler agreed.

Although her testimony is not entirely clear on

this point, see Hostetler Dep. 74, 75, it appears

that she may have submitted to one examination,

the results of which she never learned. Payton

also submitted to a polygraph, and after he did

so, Hostetler was asked for a second time to do

the same. Again, she agreed. However, when she

arrived for the examination, she was asked to

sign paperwork acknowledging that the inquiry

would cover not only the missing deposit but her

sexual harassment complaint as well. At that

point, she declined to submit to the examination,

indicating that she wished to speak with her

attorney. Hostetler avers that Payton eventually

was determined to have absconded with the money,

was turned over to the police, and was

incarcerated as a result. We can find no

independent evidence in the record confirming her

testimony on that point, however.

/5 Kochan may have participated in this meeting.

Quality asserts that he did, Quality Br. 11, but

the limited excerpts from Hostetler’s deposition

in the record do not make this clear.

/6 As evidence of what Hostetler asked her employer

to do, her remark might have some bearing on our

assessment of the adequacy of Quality’s response

to the alleged harassment. See Garrison v. Burke,

165 F.3d 565, 571 (7th Cir. 1999) (noting that

plaintiff did not express dissatisfaction with

warnings given to harasser). As we discuss below,

however, Hostetler’s contention that Quality’s

response was negligent focuses on the company’s

delay in acting and on its decision to transfer

her, not on its omission to deal with Payton more

firmly.

/7 We noted at the outset that Quality’s subsidiary,

Bravokilo, actually owns the restaurants involved

in this case. Quality does not dispute that it is

the appropriate defendant here, however.

/8 The district court construed Kochan’s affidavit

to admit that Quality transferred Hostetler

partly to resolve her harassment allegations. See

1998 WL 456436, at *6, citing Kochan Aff. para.

18. In fact, Kochan merely states that he was

aware of the personality clash between Ridenour

and Hostetler long before the harassment charge.

Id. Kochan goes on to specifically deny any

connection between the transfer and Hostetler’s

allegations against Payton. Id. para. 19.

/9 Nor is she claiming that the transfer was

retaliatory. Cf. Collins v. Illinois, 830 F.2d

692, 701-06 (7th Cir. 1987). We have highlighted

the evidence tying the transfer to her harassment

complaint simply to explain why the factfinder

could conclude that the transfer was intended to

remediate the harassment complaint. See Steiner

v. Showboat Op. Co., 25 F.3d 1459, 1465 (9th Cir.

1994), cert. denied, 513 U.S. 1082, 115 S. Ct.

733 (1995).

/10 See also EEOC Compliance Manual (CCH) sec.

615.4(a)(9)(iii), para. 3103, at 3210 (2000) (to

determine whether employer took appropriate

corrective action in response to co-worker

harassment, EEOC will consider "[w]hether it

fully remedied the conduct without adversely

affecting the terms or conditions of the charging

party’s employment in some manner (for example,

by requiring the charging party to work less

desirable hours or in a less desirable

location)").

Referenced Cases

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  2. Kerry Ellison v. Nicholas F. Brady
  3. 59 Fair empl. prac. cas. (Bna) 929 v. Thomas Turnage
  4. Hortencia Bohen v. City of East Chicago, Indiana
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  23. prod. liab. rep.(cch)p. 13 v. Mapco Gas Products v. Honeywell
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  25. Valance v. Gaylon Wisel, Mike Reneau, Ed Pearce
  26. Margaret Collins v. State of Illinois
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  31. Harris v. Forklift Systems, Inc.
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  33. Faragher v. Boca Raton
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