Magyar v. Saint Joseph Regional Medical Center

POSNER, Circuit Judge,

dissenting.

The plaintiff, Jessica Houston, contends that the defendant, a hospital that formerly employed her, dismissed her from her quarter-time job in retaliation for her having complained to the hospital’s general counsel about the handling of her claim of sexual harassment. There is insufficient evidence of retaliation to allow the case to go to a jury; and even if there were sufficient evidence, there is no evidence of retaliation for engaging in protected conduct, and without that, there is no violation of Title VII. The district judge was there*775fore right to grant summary judgment for the defendant, and we should affirm.

Shortly after Houston was hired as an assistant scheduler in the hospital’s surgery department, where she and another college student shared a half-time position, Pam Goddard became the senior director of surgical services. She had worked for the hospital for many years and as senior services director supervised more than 200 employees. The job of assistant scheduler is a responsible one. It includes providing scrubs to physicians, entering information concerning times for surgery that are given to the scheduler by a nurse, and ordering and picking up x-rays for use in forthcoming surgical operations. College kids who like Houston were working only one-quarter of a normal work week did not work regular hours and there was no assurance that either she or the other assistant scheduler would be available at all times when they were needed. Goddard wanted to replace the two college students with a regular half-time employee, and eventually she did.

But meanwhile there had been an incident at work in which a male employee had sat down in Houston’s lap uninvited and said “You’re beautiful,” and another incident in which he had “whispered [to her] an unwelcome sexual comment,” though she has not said what the comment was. After the second incident Houston complained to Goddard. The latter was reluctant to take action because Houston had not invoked the hospital’s prescribed procedure for complaining about sexual harassment — until Houston volunteered the information that she had been the victim of a sexual assault, though not by the same man or at the hospital. The same afternoon that Goddard learned this, she spoke to the male employee about whom Houston had complained. He was contrite, and there was no repetition of his offensive behavior. So, in a matter of a few hours, Houston’s grievance was successfully resolved.

Houston made no further complaints either about the male employee who she claimed had harassed her or about anyone else, and this is compelling evidence that Goddard’s action in response to her complaint had been effective. The statement in the majority opinion that Houston “probably attributed the lack of further incidents to her own attempts to avoid” the alleged harasser is a conjecture that has no basis in the record; she did testify that she tried to minimize her contacts with him, but that is the natural reaction to someone who you think has harassed you, whether or not you fear further harassment. There is also no basis for the assertion in the majority opinion that by not reporting the conversation with the alleged harasser, Goddard had left Houston “in fear that at any moment there might be a third incident.” No reasonable jury could draw such an inference. Houston had made no complaint about the first incident, after the second incident had said that she was in “no rush” to meet with Goddard, filed no complaint against the harasser, made no effort to follow up with Goddard, and waited two months before taking the matter to the general counsel. Those are not the actions of someone in fear of a third incident of harassment “at any moment.” When she did eventually complain to the general counsel, she said nothing about fearing a third act of harassment. His notes of their meeting, reporting what she told him, state that “actions have stopped.” The harassment was a closed book. Houston’s complaint to the general counsel was about Goddard’s handling of her complaint. She told him she should not have had to share with Goddard personal information in order to get action on her complaint of harassment. (Of course, she didn’t “have” to share anything; all she had to do was to follow the procedures *776specified by the hospital, and not claimed to be inadequate, for complaining about harassment.)

At a meeting with Goddard shortly after complaining to the general counsel, Houston secretly recorded a conversation in which Goddard said: “I have no problem with anyone taking anything to the legal department but I am just curious when the situation was dealt with I thought it was dealt with very effectively it was a positive outcome. You got what you asked for.... I am sorry that you feel the way you feel that as difficult.... I felt like it was handled well but obviously you didn’t and you are entitled to your opinion.” Houston replied: “I said that at the end you handled it correctly after I told you all the stuff and I stand o[n] that.” Notice of the restructured job — a half-time job in place of the two quarter-time jobs one of which Houston had filled — was posted a few days later. Houston could not apply for the job because a half-time job would not leave her enough time for her college classes.

It strains credulity that Goddard would have converted two jobs for college kids into one regular job (with benefits) merely to get rid of Houston because of the latter’s criticism of Goddard’s handling of her complaint of harassment. (Even that, as we shall see, wouldn’t be enough to create a prima facie case. Houston was not complaining that Goddard had failed to deal effectively with sexual harassment. There was no harassment after she first contacted Goddard, and she acknowledges that “at the end you handled it correctly.” That “end” came within hours of Houston’s first complaining about harassment.) It is true that the restructuring of the job came hard on the heels of the meeting (the one Houston secretly recorded) at which Goddard expressed irritation (who wouldn’t?) at Houston’s having complained to the general counsel. But there is no evidence to contradict Goddard’s claim that she intended the restructuring from the start and that the delay in implementation was due to her having more pressing matters to attend to in her new job.

The majority expresses puzzlement that Goddard would prefer having one part-time employee with benefits to two part-time employees without benefits, since benefits are an expense. But her departmental budget allowed for a part-time position with benefits, and it made sense for her to use the funds allotted for that position before they disappeared in the next budget cycle. The majority’s conjecture is based on a government report concerning average employee benefits, a report that makes no reference to the benefits expense of the St. Joseph Regional Medical Center — obviously not all employers pay the same benefits. Moreover, a part-time employee who receives benefits is bound to be more dependable than one who does not, because part-time jobs with benefits are tough to come by. “Part-time workers are much less likely to have employment-based health insurance than full-timers .... In 2004, 18.6 percent of part-time workers were covered by employment-based health benefits through their own employer, compared with 61.5 percent of full-time workers.” Employee Benefit Research Institute, “EBRI News: Growing Trend of Part-Time Workers Feeds Into Overall Decline of U.S. Health Coverage,” May 2, 2006, www.ebri.org/pdf/PR — 735— 2May06.pdf (visited Aug. 22, 2008); to same effect, see Peter S. Fisher, Elaine Ditsler, Colin Gordon and David West, “Nonstandard Jobs, Substandard Benefits,” July 2005, pp. 15-22, http://cfew.org/ Nonstandard.pdf (visited Aug. 22, 2008). And it is preferable from an employer’s standpoint to have one person doing a job rather than two splitting it, which complicates supervision and increases paperwork (two separate personnel files, etc.).

*777Houston points out that after the hiring of a regular employee to do her job she was still available for part-time work, since the regular employee was sometimes swamped, but that Goddard gave her no work. But Goddard testified without contradiction that her practice was to offer part-time work to other regular employees first — which would certainly be the normal practice — and that there was nothing left over for the college kids. (The majority opinion oddly describes this as “blacklisting]” Houston.)

Houston argues that the fact that Goddard considered her rude and disrespectful (notably in secretly recording their conversation in violation of Illinois law, 720 ILCS 5/14-2(a)(l)) is evidence of retaliation. No; it is evidence that Goddard considered Houston rude and disrespectful — and an infringer of Goddard’s legally protected privacy rights and ungrateful to boot, for Goddard could have insisted that Houston follow the hospital’s prescribed procedure for complaining about sexual harassment, but instead she cut the red tape and confronted the alleged harasser without requiring Houston to file a complaint. It is not a violation of Title VII to refuse to employ a person whom you consider (whether or not reasonably) rude and disrespectful, but in any event there is no evidence that that was the motive for the restructuring.

The majority thinks it suspicious that Goddard felt “shocked” and “bewildered” when she learned that Houston had complained about her to her employer’s lawyer. That is the natural human reaction to a groundless complaint to your superior. The majority’s reasoning places employees such as Pam Goddard in an impossible position: If the employee reacts indignantly to being complained about, this is taken as evidence of retaliation; but if she reacts by admitting that the complaint about her to her superior is justified, or by not protesting seems tacitly to admit that, she sets herself and her company up for a lawsuit (with the admission as evidence) for failing to handle a claim of sexual harassment in accordance with Title VII.

The majority bolsters its argument that Goddard was conducting a vendetta against Houston by saying that after filling the restructured job Goddard “denied [Houston] work hours, waited several months, and then terminated her in April for working insufficient hours (a flaw that Goddard was able to engineer herself).” But if Goddard wanted to punish Houston, all she had to do was not give her an assignment. No work, no pay. What additional benefit did Goddard obtain by formally terminating her? Why not have let her twist in the wind, always hoping she might receive an assignment?

I conclude that no reasonable jury could find a retaliatory motive in Goddard’s actions. But if I am wrong and it could, it could not take the next step and find that the retaliation was for statutorily protected activity, that is, for “oppos[ing] any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Houston’s only concern in complaining to the general counsel and repeating the complaint to Goddard was with Goddard’s not having acted until Houston told her of having been the victim of a sexual assault prior to her employment by the hospital. Houston was complaining to the general counsel not of having been sexually harassed (she mentioned the alleged harassment only by way of background, for that grievance had long since been resolved), but of Goddard’s handling of the grievance. In the conversation with Goddard that she secretly recorded in violation of Illinois law, Houston confirmed that she had complained to the general counsel only because she didn’t like having had to share “all the stuff.” *778(In fact she hadn’t had to, as I noted earlier.) Yet she took the initiative in sharing the information with the general counsel and now, in this lawsuit, with the world.

The majority’s statement that “in effect, [Houston] was asking [the general counsel] to ensure that the institution do something about sexual harassment” is an unwarranted gloss on Houston’s own version of her complaint (“in effect” is the giveaway). Houston was not concerned about sexual harassment. The alleged harassment was history, and there is nothing to suggest that she was concerned about actual or potential harassment of other employees. The statement in a footnote of the majority opinion that “an employee in the midst of complaining about underlying harassment may well wish to criticize the company’s procedures at the same time” thus contains two errors: Houston was not complaining about being harassed — that complaint had been resolved long ago — • and she was not complaining about the company’s procedures either. I cannot find any hint that she was dissatisfied with those procedures. She does argue that Goddard violated them. The hospital’s an-tiharassment policy (the only possible “procedures” to which the majority opinion can be referring) states that “If you believe you or any other employee is being subjected to conduct or comments that violate this policy, you are encouraged and have a responsibility to immediately report these matters to the Human Resources Department. If for any reason you do not feel comfortable reporting your concerns to Human resources, you may report your concerns to the Integrity Officer.” Houston believed that she had been harassed, and she therefore had a responsibility to report the matter not to Goddard, but to either the Human Resources Department or the Integrity Officer. She did not fulfill that responsibility. Goddard, who did not witness the incident that Houston alleged to be harassment, did not, when Houston first spoke to her, believe that Houston had been harassed. Not that she disbelieved it; she just didn’t have evidence beyond Houston’s say-so. So the policy did not require her to report the matter to the Human Resources Department or the Integrity Officer.

Notice also that Goddard could have complied with the antiharassment policy fully just by reporting Houston’s concern to the Human Resources Department. That would have delayed remediation. Goddard went out of her way, by directly confronting the alleged harasser, to make sure that the problem was resolved immediately.

The statement in the majority opinion that Houston “subjectively felt that she had been sexually harassed,” while true, is irrelevant. She was not (I repeat) complaining about the harasser. She was complaining about Goddard, who had not harassed her. If when Houston met with the general counsel she was still concerned about being sexually harassed, why didn’t she tell him? Nor had Goddard failed to handle Houston’s complaint of sexual harassment properly. She had, as Houston concedes, acted correctly in the end. And in the beginning too; her initial reluctance to take action had been reasonable. We warned in McDonnell v. Cisneros, 84 F.3d 256, 260-61 (7th Cir.1996), against placing supervisors on a razor’s edge, where if they fail to act precipitately on a complaint of sexual harassment they are sued for violating Title VII, while if they act precipitately they are sued by the alleged harasser. “Alleged harassers ... have brought a number of state common law claims, including wrongful discharge, breach of contract, tortious interference with an employment contract, invasion of privacy, negligent investigation, intentional interference with an employment relation*779ship, defamation, libel, and intentional infliction of emotional distress.” 1 Alba Conte, Sexual Harassment in the Workplace: Law and Practice 703-05 (3d ed.2000); see also Barbara Lindemann & David D. Kadue, Sexual Harassment in Employment Law 359-60 (1992).

At first Goddard wasn’t sure that the incident about which Houston was complaining had been sexually motivated, because Houston’s email requesting the meeting to discuss it had said that it was “not a rush” (that is, that there was no urgency about Goddard’s meeting with her) and because Houston was unwilling to use the hospital’s prescribed procedure for reporting sexual harassment. Shortly after the meeting with Goddard of which Houston now complains (the meeting in which she revealed the sexual assault), she emailed Goddard saying: “Thank you ... so much for listening and understanding. You made me feel a lot more comfortable when I left. Thanks [smiley face].” The statement in the majority opinion that the meeting to which the email referred was not about the alleged sexual harassment is unpersuasive in light of Houston’s failure to offer an alternative explanation of what the meeting was about.

Houston is not complaining that Goddard interrogated her about her sexual history in a way that might discourage complaints about sexual harassment. There was no interrogation. The information about a previous sexual assault was volunteered by Houston in order to prod Goddard into what could have turned out to be a precipitate reaction to the complaint. As the majority puts it “In response [to Goddard’s reluctance to speak to the alleged harasser unless Houston filed a formal complaint], Houston revealed that she had been a victim of sexual assault.”

Goddard’s reluctance to act, until Houston volunteered the information suggestive of Houston’s special sensitivity to sexual harassment, was not only reasonable but also harmless, because no harassment occurred in the brief interval (a matter of hours) between Houston’s complaining about the harassment and Goddard’s taking action, conceded by Houston to have been effective — in fact it was, as I noted, beyond the call of duty.

The only possible explanation for Houston’s dramatic swerve from being pleased with Goddard’s handling of the situation (the smiley-face email) to litigation planning, complete with an illegal secret tape recording, is that she saw that she was about to lose her job. Otherwise the two-month interval between the meeting with Goddard that is the core of her complaint about Goddard’s handling of the harassment grievance and the meeting with the general counsel makes no sense (and she requested and met with the general counsel on the same day, so the delay was her doing, not his). Nothing had happened in between. We know she knew about the job restructuring by September 26, and she may well have gotten wind of it earlier' — before the meeting with the general counsel, which took place on September 17.

She claims not to have known that Goddard had spoken with the accused harasser about the incident. But Goddard had told Houston she would do so, and why wouldn’t Houston either assume she had or, if uncertain, check with her? It’s not as if the harassment had continued, which would have suggested that Goddard had not followed through. On the contrary, the fact that the harassment ceased should have made Houston realize that Goddard had done as promised — as she had.

To say as the majority opinion does that Houston “engaged in a statutorily protected activity when she complained up the chain of command” is to equivocate. Her complaint to Goddard about sexual harass*780ment was protected; her complaint to the general counsel about Goddard, and its repetition to Goddard in the recorded conversation, were not. That is why, even if Goddard did restructure the job just in order to get rid of Houston for having criticized her, her action, while it would not have been nice, could not have violated Title VII.

Against this the majority opinion just cites a district court decision and remarks that it must “tak[e] the facts in the light most favorable to Houston.” The district court case is inapposite (and anyway is not authority) because the plaintiffs complaint in that case concerned the violation of duties imposed by Title VII, and there was no violation of any such duty in this ease. Houston complained about harassment; the hospital responded; the harassment ceased. The evidence that she was not complaining to the general counsel about protected activity consists of her own admissions.

Suppose she had complained to Goddard about the first incident of unwanted attention from the male coworker, Goddard had done nothing, and then the second incident had occurred. Whether or not Goddard had acted reasonably in failing to prevent that second incident, Houston could not be fired for complaining about Goddard’s failure; for that failure would raise a question about the adequacy of the hospital’s practices or procedures for preventing sexual harassment, and so she would not have lacked a “reasonable belief’ (whether or not correct) that the hospital had violated Title VII. Her complaint would be statutorily protected, e.g., Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir.1989), because she would be complaining about inaction, not about insensitivity.

All that the hospital “was required to do in order to satisfy its obligations under Title VII was to take prompt action reasonably calculated to end the harassment and reasonably likely to prevent the conduct from recurring. The steps taken by [Goddard] clearly satisfied this standard.” Berry v. Delta Airlines, 260 F.3d 803, 813 (7th Cir.2001); see also Cerros v. Steel Technologies, Inc., 398 F.3d 944, 954 (7th Cir.2005) (“the efficacy of an employer’s remedial action is material to our determination whether the action was ‘reasonably likely to prevent the harassment from recurring’ ”); Williams v. Waste Management of Illinois, 361 F.3d 1021, 1029-30 (7th Cir.2004) (“the net result [of a mere verbal warning] was that Williams’s complaint was dealt with within twenty-four hours, and he experienced no further race-based harassment”); Andreoli v. Gates, 482 F.3d 641, 644 n. 2 (3d Cir.2007) (“a remedial action that stops the harassment is adequate as a matter of law”); Swenson v. Potter, 271 F.3d 1184, 1196-98 (9th Cir.2001); Spicer v. Virginia, 66 F.3d 705, 710-11 (4th Cir.1995). No reasonable person would have thought that Goddard had violated Title VII by her handling of Houston’s complaint; the majority’s contrary conclusion is inconsistent with the case law.

My colleagues are deceived. This is not a case about the sexual harassment of an employee, but about the litigation harassment of an employer. The district judge was right to end it.