In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2366
Robert Tutman,
Plaintiff-Appellant,
v.
WBBM-TV, Inc./CBS, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 4424--Elaine E. Bucklo, Judge.
Argued November 30, 1999--Decided April 20,
2000
Before Manion, Kanne and Rovner, Circuit
Judges.
Kanne, Circuit Judge. CBS producer
Robert Vasilopulos testified that "it was
simply a joke" when he told Robert
Tutman, an African-American CBS
cameraman, about a comedic movie called
Niggers with Hats and parroted a phrase
from the movie by telling Tutman to
"[g]et the fuck out of the office before
I pop a cap in your ass." Tutman,
however, viewed the comment as a serious
death threat and lodged a formal
harassment complaint with their employer
WBBM-TV, Inc./CBS, Inc. ("CBS"). When CBS
responded by punishing Vasilopulos and
promising to separate Vasilopulos from
Tutman at work, Tutman remained
dissatisfied and eventually sued CBS
under Title VII of the Civil Rights Act,
42 U.S.C. sec.sec. 2000e to 2000e-17. The
district court granted summary judgment
for CBS on the hostile work environment
and constructive discharge claims, and
Tutman appealed. We affirm summary
judgment because CBS took prompt and
appropriate remedial action to prevent
further harassment and Tutman cannot
establish constructive discharge based on
the incident with Vasilopulos.
I. History
During the afternoon of Friday May 19,
1995, Tutman was conversing with
sportscaster Tim Weigel in the WBBM-TV
sports office when CBS co-worker
Vasilopulos strolled into the office and
said twice to Tutman, "Get the fuck out
of the office before I pop a cap in your
ass." According to Tutman, Vasilopulos
began prancing around, derisively
caricaturing African-Americans. Surprised
by Vasilopulos’s outburst, Tutman
responded that the correct phrase was
"bust a cap," not "pop a cap."/1
Vasilopulos asked whether Tutman had seen
a movie entitled Niggers with Hats.
Tutman answered that movies like Niggers
with Hats were profitable and that
Vasilopulos should make a similar movie
with Tutman’s help. After two minutes,
both men departed the sports office.
However, Tutman later would testify that
he interpreted Vasilopulos’s outburst as
a racially-motivated death threat and was
quite shaken by Vasilopulos’s
histrionics. After leaving the sports
office, he visited his supervisor Andrea
Jenkins and told her about Vasilopulos’s
bizarre behavior. Jenkins assured him
that he had done well to notify her and
that she would investigate his complaint.
Tutman also called D.E. Simmons, an
outside consultant retained by CBS to
advise on workplace concerns, and told
him about Vasilopulos. Simmons then
contacted Jenkins who asked Simmons to
meet with her at the office forthwith.
The pair discussed the situation, then
immediately reported Tutman’s complaint
to News Director John Lansing. Lansing
investigated further by speaking to
Weigel and Vasilopulos that night about
the incident.
On Monday May 22, 1995, Tutman
telephoned CBS that he would not come to
the station for work because of the
incident with Vasilopulos the previous
Friday. CBS gave Tutman his work
assignment over the telephone, but Tutman
did venture to the station that afternoon
to meet with General Manager Robert
McGann about his complaint. Jenkins and
Lansing then briefed McGann about the re
sults of their investigation thus far.
On Tuesday, McGann, Jenkins, Lansing,
Simmons and Vasilopulos met to discuss
Vasilopulos’s version of events.
Afterward, McGann informed the CBS human
resources department about Vasilopulos’s
conduct and Tutman’s complaint. On
Friday, one week after the incident
between Vasilopulos and Tutman, CBS’s
Director of Policy and Administration
Sandra Spangenberg arrived from CBS head
quarters in New York to investigate
firsthand. After interviewing Tutman,
Vasilopulos and other witnesses,
Spangenberg told Tutman that his
allegation was serious and Vasilopulos’s
obnoxious behavior would not be tolerated
at CBS. Spangenberg told both Vasilopulos
and Tutman that Vasilopulos would be
punished.
Based on Spangenberg’s recommendations,
CBS found that Vasilopulos posed no
physical threat to Tutman but had been
grossly inappropriate. CBS imposed a
tripartite punishment on Vasilopulos: (1)
a written warning placed in his personnel
record making clear that future
misconduct would lead to more serious
discipline; (2) mandatory participation
in a three-day interpersonal skills
workshop aimed at promoting better
workplace relationships; (3) Vasilopulos
was required to apologize to Tutman. In
addition, CBS re-circulated its anti-
discrimination and fair employment
policies to all employees. CBS previously
had disciplined Vasilopulos with letters
of reprimand for yelling "get the fuck
out of my office" at producer Howard
Dorsey and for using profanity in the
presence of editor Debra Segal. However,
at the time, Vasilopulos’s personnel file
contained no previous harassment
complaints or disciplinary actions
against him. Later, union official
Jessica Logan would testify that
Vasilopulos had disparaged CBS camera
technician Morris Jones "as a nigger" in
June 1995, a month after CBS’s
investigation of Vasilopulos’s harassment
of Tutman, but Jones did not bring a
formal charge against Vasilopulos.
Predictably, Vasilopulos was
unenthusiastic about his punishment.
Vasilopulos balked at apologizing to
Tutman but understood that CBS was taking
Tutman’s complaint "very seriously" and
would terminate him if he did not comply.
With continued insistence by CBS,
Vasilopulos wrote a June 2, 1995, letter
addressed to "whom it may concern,"
explaining noncommitally that he
regretted "that comments exchanged in a
joking manner with Robert Tutman, on May
19, 1995, were misinterpreted."
Vasilopulos also complained about
attending the interpersonal skills
workshop taught by Simmons, and CBS
allowed Vasilopulos instead to attend an
alternative three-day sensitivity seminar
from August 23 to August 25, 1995.
Vasilopulos managed to leave the final
day of the program a few hours early.
Despite CBS’s response, Tutman refused
to work because he felt "unsafe." CBS
told Tutman that his assignments could be
given by telephone and that he and
Vasilopulos could be given staggered
shifts to ensure that he would not
encounter Vasilopulos at work.
Nonetheless, CBS maintained that Tutman
had to report for work, and when Tutman
remained intransigent, CBS placed Tutman
on a paid medical leave of absence. By
his admission, Tutman was happy to
collect salary without working and did
not object. However, CBS’s employment
policy limited medical leave to six
months, and this edict had been strictly
enforced without exception during the
previous ten years. As the expiration of
Tutman’s leave drew imminent, Tutman
insisted on additional paid leave so that
he could "get back in shape" but failed
to provide a note from his doctor
verifying that extended leave was
medically necessary. Indeed, Tutman
admits that he had not sustained a
serious illness, and his doctors said
that there was no reason Tutman could not
return to work. As a result, CBS
considered Tutman "voluntarily resigned"
when his six-month medical leave lapsed
on November 22, 1995.
Tutman filed a charge of discrimination
with the Illinois Department of Human
Rights and the Equal Employment
Opportunity Commission that day. On July
19, 1996, Tutman filed suit against CBS
in district court alleging retaliation,
racially hostile work environment and
constructive discharge under Title VII of
the Civil Rights Act. The district court
referred the case to Magistrate Judge
Morton Denlow who recommended that the
district court grant summary judgment for
CBS on all Tutman’s claims. On April 29,
1999, the district court adopted the
magistrate’s recommendations and granted
summary judgment for CBS on all Tutman’s
claims. Tutman appeals summary judgment
on his hostile work environment and
constructive discharge claims.
II. Analysis
We review de novo the district court’s
grant of summary judgment, drawing our
own conclusions of law and fact from the
record before us. See Haefling v. United
Parcel Serv., 169 F.3d 494, 497 (7th Cir.
1999). Summary judgment is proper when
"the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). In determining
whether a genuine issue of material fact
exists, we construe all facts in the
light most favorable to the non-moving
party and draw all reasonable and
justifiable inferences in favor of that
party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
A. Hostile Work Environment
Tutman’s central claim before the
district court was that he suffered a
racially hostile work environment, based
on the Vasilopulos incident, in violation
of Title VII of the Civil Rights Act. For
workplace conduct to constitute a hostile
work environment actionable under Title
VII, the harassment "must be sufficiently
severe or pervasive ’to alter the
conditions of [the plaintiff’s]
employment and create an abusive environment.’"
Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65 (1986) (citation omitted).
However, an employer is not strictly
liable under Title VII for sexual
harassment perpetrated by its employees.
See Juarez v. Ameritech Mobile
Communications, Inc., 957 F.2d 317, 320
(7th Cir. 1992). In hostile work
environment cases, the employer can avoid
liability for its employees’ harassment
if it takes prompt and appropriate
corrective action reasonably likely to
prevent the harassment from recurring.
See Saxton v. American Tel. & Telegraph
Co., 10 F.3d 526, 535 (7th Cir. 1993).
The district court found that Tutman had
established a genuine issue of material
fact whether the Vasilopulos incident
created a hostile work environment, but
granted summary judgment for CBS because
it found that CBS had taken prompt,
effective remedial action in response to
the incident. We do not decide whether a
hostile work environment existed because
the question whether CBS took prompt and
effective remedial action is dispositive
here.
CBS responded promptly to Tutman’s
harassment complaint. CBS began
investigating Tutman’s allegation on the
day of the incident, and CBS’s general
manager interviewed both Tutman and
Vasilopulos on the next work day. Within
two weeks, CBS had completed its
investigation and sanctioned Vasilopulos
by issuing him a letter of reprimand,
sending him to sensitivity training and
commanding him to apologize to Tutman.
When Tutman would not return to work, CBS
offered to arrange his and Vasilopulos’s
work schedules so that they would have no
contact with each other at work.
Tutman argues that CBS’s response was
insufficiently punitive given the
severity of Vasilopulos’s conduct on May
19, 1995. However, the question is not
whether the punishment was proportionate
to Vasilopulos’s offense but whether CBS
responded with appropriate remedial
action reasonably likely under the
circumstances to prevent the conduct from
recurring. See Saxton, 10 F.3d at 535. By
punishing Vasilopulos and promising to
segregate Vasilopulos from Tutman at
work, CBS made it distinctly improbable
that Vasilopulos would further harass
Tutman because the two men would have
such limited contact, if any, with each
other at work. In Saxton, the employer
effectively responded to the plaintiff’s
report of sexual harassment by
transferring the harasser to a different
department because the transfer "served
to terminate all contact between [the ha
rasser] and [the plaintiff] and bring a
definitive end to any harassment."
Saxton, 10 F.3d at 536. Similarly, in
Savino v. C.P. Hall Co., 199 F.3d 925,
933 (7th Cir. 1999), the employer’s
relocation of the harasser to a different
floor than the plaintiff, in response to
her harassment complaint, constituted
effective remedial action likely to
prevent recurrence of harassment.
Likewise here, separating Vasilopulos and
Tutman made it quite unlikely that
Vasilopulos would harass Tutman again.
Of course, if separating Vasilopulos and
Tutman at work would have disadvantaged
Tutman, CBS’s response would have been
inadequate because remedial action that
makes the victim worse off is ineffective
per se. See Guess v. Bethlehem Steel
Corp., 913 F.2d 463, 465 (7th Cir. 1990).
However, Tutman has not established that
he would have been injured by CBS’s
proposed response. CBS has several sports
producers other than Vasilopulos, so
Tutman would not have been precluded from
working sports assignments. Tutman also
introduced no evidence that rearranging
his work schedule would have forced him
to relinquish his union stewardship.
In addition to dissociating Vasilopulos
from Tutman, CBS warned Vasilopulos
sternly that CBS would not tolerate
further harassment of co-workers. CBS
reprimanded Vasilopulos, sent him to
sensitivity training and ordered him to
apologize to Tutman. Vasilopulos
boorishly refused to attend the assigned
sensitivity training seminar before
acquiescing to a different program, from
which he arranged to exit early.
Vasilopulos also resisted apologizing to
Tutman and ultimately penned an
unconvincing, three-sentence missive only
after continued insistence by CBS
management. We sympathize with Tutman’s
frustration over Vasilopulos’s
recalcitrance, but Title VII does not
require that CBS punish Vasilopulos
commensurately to his conduct. The key
here is that CBS responded promptly with
remedial action reasonably calculated to
end Vasilopulos’s harassment of Tutman by
making clear to Vasilopulos that further
harassment would result in termination
and credibly promising Tutman that he
would have no contact with Vasilopulos at
work.
Alternatively, Tutman offers the novel
claim that CBS is liable under Title VII
for its failure to prevent Vasilopulos
from racially harassing him despite prior
indications that made harassment
foreseeable. Namely, Tutman points to
other instances of verbal abuse by
Vasilopulos--incidents of yelling at CBS
employees Howard Dorsey, Debra Segal and
Morris Jones. Without deciding the
viability of a Title VII claim for
failure to prevent foreseeable workplace
harassment, we find that CBS could not be
reasonably expected to have prevented
racial harassment here. Tutman alleges
only a single racial harassment incident-
-Vasilopulos allegedly called Jones a
"nigger"--of which CBS might have been
aware, and that incident occurred in June
1995, after Vasilopulos’s harassment of
Tutman and Tutman’s departure from CBS.
Under these facts, CBS was not forewarned
before May 19, 1995, that it should have
done more to prevent Vasilopulos from
engaging in racial harassment.
B. Constructive Discharge
To establish a claim for constructive
discharge under Title VII, a plaintiff
must prove that his working conditions
were so intolerable as a result of
unlawful discrimination that a reasonable
person would be forced into involuntary
resignation. See Vitug v. Multistate Tax
Comm’n, 88 F.3d 506, 517 (7th Cir. 1996).
Working conditions for constructive
discharge must be even more egregious
than the high standard for hostile work
environment because "in the ’ordinary’
case, an employee is expected to remain
employed while seeking redress." See
Drake v. Minnesota Mining & Mfg. Co., 134
F.3d 878, 886 (7th Cir. 1998).
Tutman refused to return to work after
Vasilopulos harassed him, but a
reasonable employee would not have found
work conditions at CBS to be so
intolerable that he would have to quit
his job. In fact, Tutman did not claim at
the time that he could not return to work
after his medical leave expired. Instead,
despite the absence of medical
corroboration, Tutman requested extended
leave to get back into shape. Aside from
Tutman’s bare assertions, there is little
to suggest that Tutman’s working
conditions would have been so objectively
intolerable based on the lone incident
with Vasilopulos. In cases finding
constructive discharge, the plaintiffs
suffered from much more severe and
sustained harassment. See, e.g., Snider
v. Consolidation Coal Co., 973 F.2d 555,
558 (7th Cir. 1992); Taylor v. Western &
S. Life Ins. Co., 966 F.2d 1188, 1191
(7th Cir. 1992); Sanchez v. Denver Pub.
Sch., 164 F.3d 527, 534 (10th Cir. 1998).
In Taylor, we found constructive
discharge when the plaintiffs’ boss
constantly peppered the plaintiffs with
racist comments, brandished a pistol and
held it to one plaintiff’s head. Taylor,
966 F.2d at 1191. In Brooms v. Regal Tube
Co., 881 F.2d 412, 417, 423 (7th Cir.
1989), the plaintiff established
constructive discharge where "repeated
instances of grossly offensive conduct
and commentary" culminated with an
incident during which a co-worker showed
the plaintiff a racist pornographic
photograph, told her that she was hired
to perform the task depicted in the
photograph, grabbed the plaintiff and
threatened to kill her. A credible death
threat that signals grave danger to the
plaintiff’s bodily integrity, as in
Taylor and Brooms, can constitute grounds
for finding constructive discharge, but
the harassment suffered by Tutman at
Vasilopulos’s hands falls well short of
this standard.
A reasonable person would not have
feared Vasilopulos as a result of his
single oblique threat, even construing
all reasonable inferences in favor of
Tutman, such that he would feel forced to
resign. See, e.g., Drake, 134 F.3d at
887; Rabinovitz v. Pena, 89 F.3d 482, 489
(7th Cir. 1996); Saxton, 10 F.3d at 537.
In Simpson v. Borg-Warner Automotive,
Inc., 196 F.3d 873, 877-78 (7th Cir.
1999), a co-worker’s comment that
"someone should take a dish and knock
[the plaintiff] upside the head" did not
establish constructive discharge.
Likewise, in Lindale v. Tokheim Corp.,
145 F.3d 953, 956 (7th Cir. 1998),
"boorish behavior" by co-workers was
insufficient for constructive discharge.
Vasilopulos’s harassment of Tutman was
closer to the abuse suffered in these
cases than to the vicious harassment in
Brooms or Taylor. Even assuming that
Vasilopulos’s harassment was so offensive
and severe to create a hostile work
environment, his conduct was not so egre
gious as to compel Tutman’s resignation
and establish constructive discharge.
III. Conclusion
For the foregoing reasons, we AFFIRM the
grant of summary judgment.
/1 The parties agree that "bust a cap" and "pop a
cap" means "to shoot" in gang parlance, but CBS
maintains that Vasilopulos did not intend his
remark as a death threat. Vasilopulos and Tutman
appear to have been referring to the film Fear of
a Black Hat mistakenly as Niggers with Hats.