Wolf, John v. Northwest IN

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4018

John Wolf,

Plaintiff-Appellant,

v.

Northwest Indiana
Symphony Society,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 98 C 488--James T. Moody, Judge.

Argued February 14, 2001--Decided May 21, 2001

Before Posner, Coffey, and Ripple, Circuit
Judges.

Coffey, Circuit Judge. On September 2,
1998, John Wolf filed suit against his
former employer, the Northwest Indiana
Symphony Society ("Symphony") pursuant to
Title VII of the Civil Rights Act of
1964, 42 U.S.C. sec. 2000e, et seq., and
the Equal Pay Act, 29 U.S.C. sec. 206(d).
Wolf alleged that the President and CEO
of the Symphony, Cheryl Cox, sexually
harassed him. Wolf also alleged that the
Symphony violated the Equal Pay Act
because it paid him less than similarly
situated female employees at the
Symphony. The district court granted the
Symphony’s motion for summary judgment.
Wolf appeals, arguing that the district
court erred in granting summary judgment,
and also that the district court erred in
allowing a motion for summary judgment to
proceed even though he had outstanding
discovery motions pending and furthermore
had requested additional discovery before
the court ruled on defendant’s summary
judgment motion, Fed. R. Civ. P. 56(f).
We affirm.

I. FACTUAL BACKGROUND

In 1989, John Wolf became a part-time
employee of the Symphony as its
Production Stage Manager, responsible for
all physical concert preparation./1 In
1994, the Symphony hired Cheryl Cox as
President and CEO and she served as
Wolf’s direct supervisor. In a February
1995 evaluation, Cox gave Wolf a written
evaluation that described him as
"diligent," "self-motivated," "reliable,"
and "a rare find," among other similarly
favorable descriptions.

Around the same time as Cox’s evaluation
of Wolf, Cox decided that to create a new
position in the Symphony’s organizational
hierarchy and designated it as the
"Operations Manager." The Operations
Manager position would combine three
part-time positions (Wolf’s position as
Production Stage Manager, Librarian, and
Personnel Manager) into one full-time
position. The Symphony’s job
qualifications recited that the
compensation for the position would be
"commensurate with experience, plus
excellent benefits, with a salary range
of $17,000 to $35,000." Further, the
Symphony listed the qualifications for
the position as:

Bachelor’s Degree or similar musical
experience working with orchestras.
Applicants must be highly motivated,
capable of managing multiple tasks, and
should possess strong organizational,
conceptual, and writing skills. Ability
to work with musicians is essential.
Computer experience a plus.

Wolf applied for the position, and on
July 1, 1995, the Symphony hired him as
the Operations Manager (though Wolf did
not have a Bachelor’s degree, he did have
prior "experience working with
Orchestras" due to his tenure as the
Symphony’s production manager). The
Symphony offered Wolf a salary of $20,000
(a salary at the low end of the stated
range because, in part, Wolf did not have
a Bachelor’s degree), and further
provided health insurance benefits for
him, but not for his family.

After he accepted the position, Wolf
alleged that Cox began to sexually harass
him. For instance, Wolf alleged that she
told both Wolf and female Symphony
employees that she treated men
differently than women, from which Wolf
inferred that Cox would discriminate
against him. Further, Wolf alleged that
Cox made comments such as "girls, we have
to watch ourselves. We have a man in the
office now" and that she liked having
"muscle in the office now." Wolf also
claimed that Cox denigrated men and told
him that men were untrustworthy. Beyond
Cox’s comments, Wolf also alleged that
she repeatedly assigned him menial tasks-
-such as carrying boxes from her car,
assembling office furniture, and
dismantling an office Christmas tree--
that were above and beyond the boundaries
of his job responsibilities.

Wolf further was of the belief that Cox
was desiring of creating a sexual
relationship with him. In one instance,
after Wolf discussed with Cox the
question of whether he might be able to
receive some overtime pay, she advised
him that she would speak to the
Symphony’s finance director, and
immediately thereafter allegedly informed
him that she "hadn’t been with a man in
over six years." Sometime later, while at
a luncheon, Cox gave Wolf her house keys
and told him that he would "never know
when [he] might need them." In addition,
Wolf claimed that Cox once phoned him at
home late at night and told him that she
was sitting in the dark in her pink
nightgown, in her king-sized bed, and was
alone and afraid. Wolf took Cox’s
comments as an invitation to visit Cox at
her house for the purpose of having a
sexual relationship with her. According
to Wolf, there were assorted other
incidents, similar to those discussed
above, in which he believed that Cox was
inviting him to have sex with her. Cox
never did explicitly request a sexual
relationship with Wolf; nor did Wolf ever
report Cox’s allegedly harassing conduct
to the Symphony’s Executive Director (or
anyone else in the Symphony for that
matter) in accordance with the Symphony’s
published sexual harassment policy.

Sometime during the time frame in which
Cox allegedly harassed him, Wolf
discovered that the Symphony’s female
marketing director made approximately
$10,000 more per year than Wolf did.
Upset by the lesser compensation he was
receiving Wolf, subsequently decided to
resign and tendered a letter of
resignation to Cox on January 11, 1996.
Wolf did not mention that he was quitting
because of any type of sexual
discrimination, but instead wrote:
I gained the satisfaction of doing a job
that everyone said could not be done and
not only did I come to respect you as the
best boss that I have ever had, but I
came to love you as a dear friend. That’s
what is making this one of the hardest
things I have ever had to do. Hard, but
necessary. Please let this serve as my
official resignation as Operations
Manager of the [Symphony].

In August, I told you that I did not know
how long I could stick it out at
$20,000/yr. My paychecks just are not
enough to pay the bills. This is a
reality that I have to deal with. I have
had our student loan payments deferred
since July and now I must begin paying on
them again. I know that this is awful
timing. But I should have left much
earlier. . . . This job has been so
incredibly time consuming that I have
been unable to do as much other part time
work as I need to. Don’t get me wrong, I
love my job, but supporting my family and
paying my bills has to be my #1 priority
. . . .

In the past months, I have been insulted,
demeaned, humiliated, and abused by
Orchestra members and Bob [Vodnoy, the
Symphony’s conductor], a slimy do-nothing
bastard who has done everything in his
power to destroy this organization, was
getting $70,000 to walk off into the
sunset. . . .
However, Cheryl, I feel I owe it to you
to be perfectly honest. I am aware that
Anne is making nearly ten thousand
dollars more than me plus the Society is
paying for half of the health insurance
for her family. Icannot tell you how
deeply this has hurt me. Cheryl, I don’t
think that you can look me in the eyes
and tell me that I am not as valuable to
this organization as Anne is. . . . The
more I think about it, the more upset I
get. I told you before Cheryl that you
were the only reason that I was sticking
around . . . .

I am sorry these words come to you in the
impersonal form of a letter, but right
now I’m feeling a bit overwhelmed and I
wanted to make sure that I said
everything that I needed to. . . . I
don’t want anything to spoil our
friendship. Both [my wife] and I are so
fond of you, as are [our children]. I
hope that we can still get together and
continue our relationship. I’m sorry it
has come to this. I really am sorry.

Five days later, Cox sent Wolf a letter
accepting his resignation. On January 27,
1996, Wolf wrote an eleven-page letter to
all members of the Symphony’s Board of
Directors. Wolf initially explained that
he resigned because he could not support
his family on the salary he received. In
the letter, Wolf also described his
relationship with Cox, explaining that he
viewed himself as her big brother and
viewed Cox as a "dear friend." He
commented that his children called her
"Aunt Cheryl." But Wolf also explained
that he was upset that Cox’s "only
response to [his] resignation was
coldness and hostility.]" Wolf next
complained about the Symphony’s unfair
employment practices--specifically that a
female employee (the marketing director)
made $10,000 more than he did and in
addition received insurance benefits for
her family. Finally, towards the
conclusion of the letter, Wolf discussed
Cox’s actions that "made [him] feel
awkward and uncomfortable," though he
never expressed a belief that Cox had
sexually harassed him. Wolf told the
Board that Cox expected him to lie for
her, cried in front of him, and told him
"about how she wanted to crawl in her big
king-sized bed in her nightgown or how
she hadn’t been with a man since her
divorce six years ago." Wolf concluded
the letter by stating that he was
"conned" into believing Cox was his
friend, that he was upset that Cox
breached his confidentiality by sharing
his letter of resignation with them, and
further that he regretted the way things
turned out and that he left the Symphony
of his own volition.

Some two months thereafter, Wolf wrote
another letter to the Board on March 21,
1996 and once again addressed the issue
of his compensation, stating that the
average salary for his position was
$23,000 (pointing to the 1993-94 American
Symphony Orchestra League ("ASOL") Salary
Survey). Wolf made no reference to any
type of sexual harassment in the March 21
letter.

On April 4, 1996, Wolf filed a charge of
discrimination with the Indiana Civil
Rights Commission, alleging that Cox had
sexually harassed him. Thereafter, while
the charge was pending, Wolf wrote two
additional letters to the Symphony’s
Board. In those letters, Wolf expressed
an interest in resuming his position as
Operations Manager, "provided that it was
structured correctly and paid according
to ASOL standards . . . ." Once again,
Wolf made no reference to any allegations
of sexual harassment in these letters.
The Symphony again did not respond. On
May 29, 1998, the Equal Employment
Opportunity Commission denied Wolf’s
charge, and issued Wolf a right-to-sue
letter. Thereafter Wolf filed suit,
alleging that Cox had sexually harassed
him and that the Symphony had violated
the Equal Pay Act. The district court
granted the Symphony’s summary judgment
motion, holding that Wolf had not
submitted sufficient evidence from which
a reasonably jury could infer that Cox’s
actions made his working environment
intolerable. The district court further
held that Wolf had submitted no evidence
demonstrating that the Symphony had paid
higher wages to similarly situated female
employees.

II. ISSUES

Wolf asserts that the district court
improperly granted summary judgment in
favor of the Symphony with respect to his
Title VII and Equal Pay Act claims. Wolf
further asserts that the court erred in
ruling on defendant’s summary judgment
motion while Wolf’s outstanding discovery
motions were pending.

III. ANALYSIS

1. Standard of Review

Summary judgment is proper if "there is
no genuine issue as to any material fact
and . . . the moving party is entitled to
a judgment as a matter of law." Fed. R.
Civ. P. 56(c). "We review de novo a
district court’s grant of summary
judgment, viewing the record in the light
most favorable to the nonmoving party."
Gleason v. Mesirow Fin., Inc., 118 F.3d
1134, 1139 (7th Cir. 1997) (quoting
Anderson v. Baxter Healthcare Corp., 13
F.3d 1120, 1122 (7th Cir. 1994)). In
order to successfully oppose a motion for
summary judgment, the nonmoving party (in
this case, Wolf) must do more than raise
a "metaphysical doubt" as to the material
facts. Id. (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). "Where the record
taken as a whole could not lead a
rational trier of fact to find for the
non-moving party, there is no ’genuine
issue for trial.’" Matsushita Elec.
Indus. Co., 475 U.S. at 587.

2. Wolf’s 56(f) Motion

Both parties focus the majority of their
arguments on the question of whether Wolf
adequately moved under Rule 56(f) to
extend discovery before the trial court
ruled on the Symphony’s motion for
summary judgment. But if we accept all of
the allegations in Wolf’s complaint as
true, and they still do not amount to an
actionable Title VII claim, further
discovery would be unnecessary. Wolf was
certainly aware at the time of any type
of sexual harassment he had allegedly
endured. Although further discovery might
have elicited a response from Cox
regarding Wolf’s allegations, we are
unable to understand how further
discovery would have uncovered any
additional incidents of sexual harassment
that might bolster his claims.
Accordingly we initially turn to the
question of whether Wolf’s evidence,
taken as true, could establish a legally
sufficient basis to conclude that Cox
sexually harassed him.

3. Title VII Claim

Title VII forbids any workplace
discrimination "with respect to his
compensation, terms, conditions, or
privileges of employment because of such
individual’s race, color, religion, sex,
or national origin." 42 U.S.C. sec.
2000e-2(a)(1). Recently, the Supreme
Court abandoned the commonly used
categories of hostile work environment
harassment and quid pro quo harassment,
opting instead to distinguish between
cases in which the supervisor takes a
tangible employment action against the
subordinate and those in which she does
not. See Burlington Indus. v. Ellerth,
524 U.S. 742, 760-65 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775, 807
(1998); see also Mosher v. Dollar Tree
Stores, Inc., 240 F.3d 662, 666 (7th Cir.
2001); Gentry v. Expert Packaging Co.,
238 F.3d 842, 846 (7th Cir. 2001); Molnar
v. Booth, 229 F.3d 593, 599-600 (7th Cir.
2000); Hill v. American General Fin.,
Inc., 218 F.3d 639, 642-43 (7th Cir.
2000). An employer is subject to
vicarious liability to a victimized
employee for an actionable hostile
environment created by a supervisor with
immediate (or successively higher)
authority over the employee. Hill, 218
F.3d at 642. The employer’s liability in
each instance is determined under agency
principles, as the Supreme Court has
clearly enunciated. Molnar, 229 F.3d at
600. In general, employers bear vicarious
liability for the harassment committed by
a supervisor in accordance with the
following rules as summarized in
Faragher:

An employer is subject to vicarious
liability to a victimized employee for an
actionable hostile environment created by
a supervisor with immediate (or
successively higher) authority over the
employee. When no tangible employment
action is taken, a defending employer may
raise an affirmative defense to liability
or damages, subject to proof by a
preponderance of the evidence . . . . No
affirmative defense is available,
however, when, the supervisor’s
harassment culminates in a
tangibleemployment action, such as
discharge, demotion, or undesirable
reassignment.

Faragher, 524 U.S. at 807-08.

Thus, the question of "whether the
harassment led to a tangible employment
action is critical. If so, [the Symphony]
was liable without more; if not, [the
Symphony] was entitled in principle to
the opportunity to show (1) that it exer
cised reasonable care to prevent and
correct promptly any sexually harassing
behavior, and (2) that [Wolf] failed to
take advantage of any preventive or
corrective opportunities provided by
[his] employer to avoid harm otherwise."
Molnar, 229 F.3d at 600 (citing Ellerth,
524 U.S. at 765; Faragher, 524 U.S. at
807).

A tangible employment action
"constitutes a significant change in
employment status, such as hiring,
firing, failing to promote, reassignment
with significantly different
responsibilities, or a decision causing a
significant change in benefits." Ellerth,
524 U.S. at 761; see also Molnar, 229
F.3d at 600 (citing Ellerth, 524 U.S. at
761); Ribando v. United Airlines, 200
F.3d. 507, 510-11 (7th Cir. 1999) (citing
Ellerth, 524 U.S. at 761). "Tangible
employment actions are the means by which
the supervisor brings the official power
of the enterprise to bear on
subordinates. A tangible employment
decision requires an official act of the
enterprise, a company act." Ellerth, 524
U.S. at 762.

Here, Wolf was not terminated. He quit,
and now claims to have been
constructively discharged. First, it
should be noted that we have yet to
determine whether a constructive
discharge is a tangible employment action
within the meaning of Ellerth and
Faragher. See Mosher, 240 F.3d at 666. We
need not settle that issue today,
however, for we find that Wolf did not
raise a genuine issue of material fact
that he was constructively discharged.

An employee can assert a claim of
constructive discharge when he is forced
to resign because his working conditions,
from the standpoint of the reasonable
employee, have become unbearable. Id.;
Lindale v. Tokheim Corp., 145 F.3d 953,
955 (7th Cir. 1998). Although an employee
facing a discriminatory or harassing
environment is not required to file suit
before resigning, failure to object to
egregious conditions, or to seek some
form of redress is compelling evidence
that the employee, or any reasonable
worker, would not find the conditions
intolerable. Lindale, 145 F.3d at 955.
Absent extraordinary conditions, "a
complaining employee is expected to
remain on the job while seeking redress."
Perry v. Harris Chernin, Inc., 126 F.3d
1010, 1015 (7th Cir. 1997).

We are of the opinion that Wolf’s
situation was far from the extreme
situation warranting a resignation as the
only alternative to avoiding or
overcoming an intolerable situation.
Although, perhaps, Cox’s actions made
Wolf uncomfortable, it is telling that in
this case Wolf never reported Cox’s
harassment to anyone at the Symphony.
Indeed, in his resignation letter, Wolf
even commended Cox as being "the best
boss he ever had." Even after Wolf had
resigned and became upset with Cox, his
complaints to the Symphony Board never
clearly stated that he believed that Cox
had sexually harassed him; at best they
only inferred a possibility of sexual
harassment. Instead, Wolf’s primary
complaints to the Symphony Board regarded
his pay and the manner in which Cox
treated him after he submitted a letter
of resignation. These are hardly the
actions of an employee who is faced with
an objectively intolerable working
environment. As courts have noted, "’[a]n
employee who quits without giving his
employer a reasonable chance to work out
a problem has not been constructivelydischarged.’"
Yearous v. Niobrara County Mem’l Hosp.,
128 F.3d 1351, 1356 (10th Cir. 1997)
(quoting Tidwell v. Meyer’s Bakeries,
Inc., 93 F.3d 490, 494 (8th Cir. 1996)).

Wolf makes no other allegation that any
of Cox’s allegedly harassing activity
resulted in a tangible employment action,
but instead argues that, even if he did
not suffer a tangible employment action,
Cox subjected him to a sexually harassing
work environment. Wolf points to several
of Cox’s actions in support of his sexual
harassment claim, including: 1) making
him perform menial tasks around the
office; 2) informing him that she was
glad there was "muscle" in the office; 3)
telling Wolf on several occasions what
she wore to bed; 4) phoning Wolf late at
night to tell him that she was alone and
scared; 5) informing him that she had not
been with a man in six years; 6) holding
his arm when he walked her to her car
after work; 7) reserving a hotel room for
Wolf and using the shower in that room
before a concert; 8) telling him that men
were untrustworthy; as well as other
similar incidents.

To be actionable under Title VII, "the
conduct at issue must ’ha[ve] the purpose
or effect of unreasonably interfering
with an individual’s work performance or
creating an intimidating, hostile, or
offensive work environment.’" Filipovic
v. K & R Express Sys., Inc., 176 F.3d
390, 397 (7th Cir. 1999) (quoting Saxton
v. American Tel. & Tel., Co., 10 F.3d
526, 533 (7th Cir. 1993)). Further the
conduct at issue must be sufficiently
severe or pervasive such that "a
reasonable person would find it hostile
and [that] the victim [himself]
subjectively sees as abusive." Id.
(citing Ngeuntjuntr v. Metropolitan Life
Ins. Co., 146 F.3d 464, 467 (7th Cir.
1998)). In determining whether conduct
rises to the level, . . . we look at "the
totality of the circumstances, including
but not limited to 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.’"
Mosher, 240 F.3d at 668 (quoting
Faragher, 524 U.S. at 787-88). We
previously commented that "the concept of
sexual harassment is designed to protect
working women [and also men] from the
kind of . . . attentions that can make
the workplace hellish . . . . It is not
designed to purge the workplace of
vulgarity." Baskerville v. Culligan Int’l
Co., 50 F.3d 428, 430 (7th Cir. 1995).

In Baskerville, we concluded that the
plaintiff had not been sexually harassed
where a supervisor called her a "pretty
girl," made grunting sounds when she wore
a leather skirt, told her that his office
was not "hot" until she walked in, told
her that "all pretty girls should run
around naked" at work, and mentioned his
wife’s absence from town, stating that
all he had for company was his pillow and
looking at his hand as if to suggest
masturbation. Baskerville, 50 F.3d at
430-31. In reaching this conclusion, we
noted that the supervisor never touched
the plaintiff, did not invite her (either
implicitly or explicitly to have sex with
him or go on a date with him), did not
expose himself to her, and did not show
her dirty pictures. See id. at 431; see
also Gleason, 118 F.3d at 1144-45 (no
sexual harassment where plaintiff’s
manager referred to female customers as
"bitchy" and "dumb," ogled other female
employees, flirted with plaintiff’s
female relatives, and told plaintiff that
he spent the weekend at a nudist colony
and that he dreamed of holding her hand);
Weiss v. Coca-Cola Bottling Co., 990 F.2d
333, 337 (7th Cir. 1993) (no sexual
harassment where plaintiff’s supervisor
asked plaintiff for dates, called her a
"dumb blond," put his hand on her
shoulder several times, placed "I love
you" signs at her work station, and
attempted to kiss her in a bar).

In this case, Cox’s conduct is less
egregious than the actions of the
supervisors in Baskerville, Gleason, and
Weiss. Cox never did make any explicit
comment to Wolf inviting him to have a
sexual relationship with her. Perhaps Cox
crassly let Wolf know that she was
lonely, but only someone "mysteriously
aloof from contemporary American popular
culture in all its sex-saturated
vulgarity" would find Cox’s sexual
overtures, if they even can be identified
as such, substantially distressing.
Baskerville, 50 F.3d at 431. Indeed,
Wolf’s reaction to her behavior belies
any claim that he subjectively believed
Cox harassed him. In his resignation
letter, Wolf commended Cox as a good
boss, and complained not about any sexual
harassment, but instead about his pay. He
also told Cox in the letter that he
wanted to maintain their friendship.
Later, when Wolf began to complain to the
Symphony Board about Cox, he never did
criticize her for sexually harassing him
during his employment, but only for
mistreating him after he had resigned
(despite his complimentary resignation
letter). Apart from being able to
establish that a reasonable person would
conclude that Cox’s actions were
harassing, Wolf’s actions (first
commending Cox and complaining about his
pay, and later complaining about the way
she treated him after he resigned) are
inconsistent with his assertion that he
subjectively believed Cox to have
harassed him. Accordingly, the district
court properly granted defendant’s motion
for summary judgment as to Wolf’s Title
VII claim.

4. Equal Pay Act Claim

Wolf also asserted that the district
court erred in granting defendant summary
judgment as to his Equal Pay Act claim.
To establish a violation under the Equal
Pay Act, Wolf was required to establish
that: 1) different wages are paid to
employees of the opposite sex; 2) the
employees do equal work which requires
equal skill, effort, and responsibility;
and 3) the employees have similar working
conditions. Bragg v. Navistar Int’l
Transp. Corp., 164 F.3d 373, 378 (7th
Cir. 1998). Wolf only cursorily discusses
this issue in his brief on appeal,
asserting that the Symphony provided
health insurance benefits to female
employees’ family members. But the record
establishes that the only employees who
received benefits for family members were
the "Finance Director" and the "Marketing
Director." Wolf concedes that these
employees had different duties than he,
and points us to no evidence in the
record that their jobs required similar
skill, effort, or responsibility.
Accordingly, we hold that the district
court likewise properly granted
defendant’s summary judgment motion as to
Wolf’s Equal Pay Act claim.

IV. CONCLUSION

Wolf failed to establish that a genuine
issue of material fact exists in his
employment discrimination claims. We
agree with the district court’s finding
that the incidents of workplace
harassment that Wolf alleges fail to rise
to the level sufficient to come within
the parameters of sexual harassment under
Title VII. We further agree with the dis
trict court’s decision that Wolf failed
to present sufficient evidence to
demonstrate that similarly situated
female employees received greater
compensation than he did, and thus the
district court properly granted
defendant’s summary judgment as to Wolf’s
Equal Pay Act claim. Finally, we hold
that Wolf’s argument that the district
court improperly ruled on defendant’s
summary judgment motion while his Rule
56(f) motion was pending is moot because,
even accepting all of Wolf’s allegations
as true he could not establish a claim
for sexual harassment. Accordingly, the
district court’s grant of summary
judgment as to all counts is AFFIRMED.

FOOTNOTE

/1 Wolf’s duties in this regard included moving of
equipment for concert location changes, truck
rental, and physical set-up for concerts.