Johnson, Michelle v. West, Togo D.

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3903

Michelle Johnson,

Plaintiff-Appellant,

v.

Togo West, Jr., Secretary of

Veterans Affairs,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 94-C-6530--Blanche M. Manning, Judge.

Argued April 12, 1999--Decided July 5, 2000

Before Posner, Chief Judge, and Easterbrook and Diane

P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge. Michelle Johnson

sued her former employer, the Department of

Veterans Affairs ("VA"), under Title VII of the

Civil Rights Act of 1964, alleging that her

supervisor, Karl Williams, sexually harassed her

and that the VA retaliated against her for

challenging the harassment. Following a bench

trial, the district court held that Johnson had

been subjected to a hostile work environment but

that the VA was protected from liability by the

affirmative defense set forth in Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and

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

(1998). The district court also found that the VA

had a legitimate, nonpretextual reason for firing

Johnson and thus had not improperly retaliated

against her. Because we find the district court’s

findings on the affirmative defense laid out in

Ellerth and Faragher to be incomplete as a matter

of law, and we conclude that the VA may have

retaliated against Johnson for complaining about

the harassment, we reverse the judgment of the

district court and remand for further

proceedings.

I

From August 28, 1990, to September 1993 Johnson

worked as secretary to Karl Williams, the Chief

of Police at the Hines VA Hospital. Shortly after

Johnson started to work for Williams, he began to

express a crude sexual interest in her. The first

incidents took place on September 19, 1990.

Williams invited Johnson into his office and

locked the door to both of their offices. Holding

a condom in one hand, he pulled down his pants

and exposed himself. When someone knocked at the

door, Williams zipped up his pants and instructed

Johnson to act calm. Later that day, Williams

took Johnson to a hotel. After disrobing and

instructing Johnson to do the same, they had

sexual intercourse. Johnson testified that she

neither wanted nor desired to have sex with

Williams but did so out of fear that she would be

terminated if she rejected his advances. The next

day, Williams gave Johnson a greeting card with

a pre-printed message stating "[i]t’s nice to be

able to share the simple things of life with you:

a quiet walk, a candlelit dinner, an evening by

the fire . . . sex that registers on the Richter

Scale." He signed the card "Luv ’Chief’ a/k/a

Will a/k/a Maurice a/k/a Batman a/k/a Darkman."

The incidents did not stop there. They

continued through 1991, with Williams engaging in

a variety of inappropriate sexual behavior. He

often touched Johnson inappropriately, for

example, by trying to separate her legs as she

moved from her desk to her typewriter and

pressing his chest against her back while she was

typing. When Williams learned Johnson was dating

another man, he began verbally abusing her.

Williams also gave Johnson a Valentine’s Day card

on February 14, 1991, which read "I can’t imagine

loving you more than I do today . . . but

tomorrow I will. HAPPY VALENTINE’S DAY, SWEETHEART."

While all of this was going on, Johnson did not

report Williams’s conduct, because she was afraid

of being fired. The Valentine’s Day card,

however, seems to have been the last straw. One

week after she received it, she informed her co-

worker, Valerie Davis, of Williams’s harassment.

Davis encouraged her to report Williams to an EEO

officer, but Johnson refused. In the summer of

1991, when her probationary employment period was

coming to an end, Johnson told VA Associate

Director James Jones, Williams’s supervisor, that

Williams was spreading false rumors that she and

Williams were romantically involved. Johnson,

however, did not tell Jones about the other

incidents of harassment. Jones confronted

Williams about Johnson’s allegations (without

mentioning her name), but Williams denied that he

was involved with any of his employees. In

September 1991, Johnson applied for three other

jobs in order to avoid further contact with

Williams. She was not selected, even though she

was qualified for the positions. (Williams had no

input into the decisions.)

In January 1992, Johnson met with Dr. Joan

Cummings, Director of Hines Hospital, and told

her about the harassment. Cummings instructed

Johnson to file a formal complaint with an EEO

counselor, which Johnson did on February 28,

1992. Cummings then appointed an administrative

board to review Johnson’s complaint. Although

Cummings declined Johnson’s offer to drop the

complaint in exchange for a promotion elsewhere

in the hospital, on May 21, 1992, Cummings

transferred Johnson to an equivalent position in

another area as a temporary corrective measure

while the investigation was ongoing.

In June 1992, Johnson started seeing a

therapist, complaining that she was suffering

from hallucinations, substance abuse, and

depression. The EEO investigation ultimately

concluded that Johnson had been sexually

harassed. Cummings reviewed the EEO report and,

on November 9, removed Williams as chief of

police and sent him to a different area,

transferred Johnson back to her old job, and

assigned her to a new supervisor.

On September 23, 1992 (prior to Cummings’s

notice of corrective action), Johnson encountered

Williams in the hallway as he was leaving his

interview with the EEO officials. Johnson struck

Williams across the face because she believed he

had lied to the EEO investigators about her

allegations. A year later, in September 1993,

Cummings fired Johnson for striking Williams.

Johnson responded with this Title VII action.

Her complaint claimed that she had been exposed

to a hostile work environment, and that the VA

retaliated against her by denying her promotions,

transferring her back to the department where she

experienced the harassment, and, ultimately,

terminating her employment. The district court

found that Johnson was subjected to a hostile

work environment. However, the court denied

Johnson relief, because it found that the VA,

upon discovering the harassment, took reasonable

and adequate measures to prevent it. The VA had

removed Williams from his position as Chief of

Police in November 1992 and had appointed a

replacement, but in May 1993, as a result of an

investigative review board’s findings, it

reinstated Williams to the Chief of Police

position and reassigned Johnson to a different

but equivalent job in another department. The

district court also found that the VA fired

Johnson not because she filed a sexual harassment

claim but because she struck Williams.

II

Because this case comes to us after a full

bench trial, we review the district court’s

conclusions of law de novo and its findings of

fact for clear error. NRC Corp. v. Amoco Oil Co.,

205 F.3d 1007, 1011 (7th Cir. 2000). "If the

trial judge correctly states the law, then his

findings as to whether the facts meet the legal

standard will be disturbed only if they are

clearly erroneous. Our review [is] more searching

if the district court has committed an error of

law, including one that ’infect[s] a so-called

mixed finding of law and fact, or a finding of

fact that is predicated on a misunderstanding of

the governing rule of law.’" Daniels v. Essex

Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir.

1991) (internal citations omitted) (quoting Bose

Corp. v. Consumers Union, 466 U.S. 485, 501

(1984)).

Johnson raises six arguments on appeal, five of

which focus on her hostile environment claim. In

contesting the district court’s handling of that

claim, she first argues that the VA was not

entitled to the affirmative defense set forth in

Ellerth and Faragher. She then asserts in the

alternative that, even if the VA is entitled to

the affirmative defense, it failed to satisfy the

affirmative defense’s two requirements. Johnson’s

last argument on appeal focuses on her

retaliatory discharge claim.

A.Vicarious Liability and the Ellerth/Faragher

Affirmative Defense

The district court found that Johnson was

sexually harassed. As this finding was not

clearly erroneous and in any event the VA has not

cross-appealed from it, we focus on the standards

of vicarious liability, which is the focus of the

parties’ arguments on appeal. The VA does argue

that if this court reverses the district court’s

judgment on the Ellerth/Faragher defense, this

court should remand for a new trial on the

finding of sexual harassment. According to the

VA, the district court inexplicably ignored

evidence that Johnson and Williams were--at least

at the start-- involved in a consensual

relationship. A new trial, however, is

unnecessary, even if we could give this relief

without a cross-appeal. Whether or not the

initial sexual relationship was consensual, the

VA’s proffered evidence does not refute the

district court’s findings concerning Williams’s

behavior after the "relationship" dissolved.

In Ellerth and Faragher, the Supreme Court

considered an employer’s vicarious liability for

the sexually harassing conduct of its supervisory

staff. "An employer is subject to vicarious

liability to a victimized employee for an

actionable hostile work environment created by a

supervisor with immediate (or successively

higher) authority over the employee." Ellerth,

524 U.S. at 765; Faragher, 524 U.S. at 807.

Vicarious liability automatically applies when

the harassing supervisor is either (1)

"indisputably within that class of an employer

organization’s officials who may be treated as

the organization’s proxy," Faragher, 524 U.S. at

789, or (2) "when the supervisor’s harassment

culminates in a tangible employment action, such

as discharge, demotion, or undesirable

reassignment." Id. at 808. Absent either of these

situations, however, an employer may avoid

vicarious liability by showing "(a) that the

employer exercised reasonable care to prevent and

correct promptly any sexually harassing behavior,

and (b) that the plaintiff employee unreasonably

failed to take advantage of any preventive or

corrective opportunities provided by the employer

or to avoid harm otherwise." Ellerth, 524 U.S. at

765. Johnson argues that the VA was not entitled

to the affirmative defense because (1) Williams

was an "employer" for the purposes of Title VII--

that is, the VA’s "proxy" or "alter-ego," and in

any event (2) she suffered a tangible employment

action as a result of her harassment.

Johnson argues that Williams was, for Title VII

purposes, her "employer" or the VA’s alter-ego,

and, as such, his actions are automatically

attributable to the VA. Faragher suggests that

the following officials may be treated as an

employer’s proxy: a president, owner, proprietor,

partner, corporate officer, or supervisor

"hold[ing] a sufficiently high position in the

management hierarchy of the company for his

actions to be imputed automatically to the

employer." 524 U.S. at 789-90 (citing with

approval Torres v. Pisano, 116 F.3d 625, 634-35

& n.11 (2d Cir. 1997)). Williams was not such a

person. Although Williams had an important title,

"Chief of Police," he had no less than two

supervisors (Jones and his supervisor, Cummings)

within the hospital and no doubt others within

the VA’s bureaucracy. As such, he was not a high-

level manager whose actions "spoke" for the VA.

See Harrison v. Eddy Potash, Inc., 158 F.3d 1371,

1376 (10th Cir. 1998). If automatic vicarious

liability is warranted for Williams, there would

be little or nothing left of the affirmative

defense the Supreme Court took care to fashion in

Ellerth and Faragher.

Williams was, in fact, a rather low-level

supervisor. He was not the only person to whom

Johnson reported, as she worked for a number of

people. Outside of signing off on Johnson’s

performance appraisals, Williams had no ability

to change the terms and conditions of Johnson’s

employment. The VA had systems in place to check

the behavior of its low-level supervisors like

Williams: it disseminated its sexual harassment

policy and had grievance procedures through which

an employee could make a complaint without having

to go through the offending supervisor. See

Montero v. Agco Corp., 192 F.3d 856, 864 (9th

Cir. 1999). Her case therefore turns on the

question whether the district court correctly

concluded that the VA had met the requirements of

its affirmative defense.

In one final effort to avoid this inquiry,

Johnson argues that hers is a case in which a

tangible employment action occurred--her

discharge--and thus that the affirmative defense

is not available to the VA. She is certainly

correct that being discharged is a "tangible

employment action." See Silk v. City of Chicago,

194 F.3d 788, 804 & n.16 (7th Cir. 1999).

However, Johnson’s termination did not result

from Williams’s harassment in the way Ellerth and

Faragher contemplate. An employer is vicariously

liable for tangible employment actions undertaken

by the harassing supervisor. Faragher, 524 U.S.

at 808 ("No affirmative defense is available [ ]

when the supervisor’s harassment culminates in a

tangible employment action.") (emphasis added).

When a supervisor takes a tangible employment

action--in contrast to harassment that does not

involve such a tangible action--"there is

assurance the injury could not have been

inflicted absent the agency relation" and thus

the supervisor’s action becomes for Title VII

purposes the act of the employer. Ellerth, 524

U.S. at 761-62.

Williams’s actions created a hostile working

environment for Johnson, but he himself did not

use his supervisory authority to get her fired.

To the contrary, Williams reported Johnson’s

assault to his higher-ups in the VA hospital

administration, who in turn investigated his

complaint and resolved it through the appropriate

administrative channels. Although his report of

her actions resulted in her being fired, he was

not her supervisor at the time, he played no role

in the decision to fire Johnson, and the decision

to fire her was made after his report of

Johnson’s assault was considered in the proper

administrative channels. See Silk, 194 F.3d at

806 & n.17 (holding employer not vicariously

liable for tangible employment action when

supervisor submitted complaint regarding

plaintiff-employee’s violation of regulations and

employment action was taken after full

investigation and hearing on the issue). We

therefore hold that the district court correctly

found that the VA could claim the affirmative

defense and consequently move on to determine

whether the court applied the defense correctly.

Johnson argues that even if the VA was entitled

in principle to the Ellerth/Faragher affirmative

defense, it did not meet its burden of proof.

That burden requires the employer to establish

two points, not just one. Given the fact that our

review of the district court’s findings here is

only for clear error, we see nothing reversible

in its finding that the VA "exercised reasonable

care to prevent and correct promptly any sexually

harassing behavior," which is the first part of

the defense. The district court found that the VA

had an established harassment policy. Faragher,

524 U.S. at 807; Caridad v. Metro-North Commuter

R.R., 191 F.3d 283, 295 (2d Cir. 1999) ("Although

not necessarily dispositive, the existence of an

anti-harassment policy with complaint procedures

is an important consideration in determining

whether the employer has satisfied the first

prong of [the affirmative] defense."). When

Johnson finally reported the full extent of the

harassment to Cummings and the agency EEO staff,

the VA responded adequately: it ordered an

investigation and it immediately separated

Johnson and Williams. Cummings even refused to

drop the investigation in the face of Johnson’s

request that she do so. Johnson does not point to

anything to suggest these findings are clearly

erroneous. (In her motion for reconsideration

before the district court, Johnson made the

argument that the harassment was so pervasive

that the VA should have discovered it and taken

action even before her complaints. Johnson failed

to make this argument at trial, however, so the

district court deemed it waived. That is enough

for us to disregard it as well.)

The problem with the district court’s decision

does not lie, however, in its factual findings

with respect to the first element of the defense.

It lies in the absence of the court’s

consideration of element 2, which requires a

finding about whether "the plaintiff employee

unreasonably failed to take advantage of any

protective or corrective opportunities provided

by the employer or to avoid harm otherwise." In

other words, it is the VA’s burden to show that

Johnson acted unreasonably. The district court

made no findings at all about the reasonableness

of Johnson’s failure to take advantage of any

preventive or corrective opportunities the VA

provided. Even though the district court’s

failure to state explicitly what it was doing

would not require a remand if the court’s factual

findings were sufficient for us to draw our own

legal conclusions, see Brooms v. Regal Tube Co.,

881 F.2d 412, 420 (7th Cir. 1989), we do not find

this to be such a case.

On this record, a trier of fact could

rationally come to either conclusion on the

second element: that Johnson behaved reasonably,

or that she did not. The VA stressed the fact

that it took Johnson nearly a year to report the

harassment, which is surely an element in its

favor. But, as the district court itself

acknowledged, her failure to do so may have

stemmed from Williams’s threats and intimidation,

which convinced Johnson (still at that point a

probationary employee) that to take any action

would come at the price of her job. Such a

reaction may not be unreasonable. Cf. Caridad,

191 F.3d at 295 (finding employee’s failure to

report harassment unreasonable where it was based

on fear of her co-workers’ reaction). There was

evidence that Williams threatened Johnson,

verbally abused her, and even threw mail in her

face. A trier of fact could find that Johnson was

under severe emotional and psychological stress

as a result of the harassment. Her co-workers

observed that she appeared fearful and

introverted when she was working for Williams; at

one point, when Williams had her backed into a

corner, she yelled "I’m going to scream!"

Eventually, she consulted a therapist to help her

through the hallucinations, substance abuse, and

depression she suffered.

This presents a factual issue on the

affirmative defense that was never resolved by

the district court, and that cannot be resolved

by this court on appeal. It is more than a loose

end, as its resolution will be determinative of

the VA’s liability and the outcome of Johnson’s

case. We therefore conclude that the proper

course is to remand for further proceedings on

this point.

B. Retaliatory Discharge

Finally, Johnson argues that she was the

subject of a retaliatory discharge in violation

of Title VII. She maintains that Williams’s

incessant harassment and subsequent denials

rendered her emotionally unstable. It was this

instability, she says, that caused her to slap

him. Because the harassment was causally

connected to the assault, she concludes, the VA

should not be able to use the assault as a

legitimate reason for firing her.

Title VII prohibits retaliation against an

employee who has engaged in activity protected by

the Act. 42 U.S.C. sec. 2000e-3(a). To make out

her retaliation claim, Johnson must establish

that: (1) she engaged in statutorily protected

expression; (2) her employer took adverse action

against her; and (3) the protected expression and

the adverse action are causally linked. Parkins

v. Civil Constructors of Illinois, Inc., 163 F.3d

1027, 1038 (7th Cir. 1998); Dunning v. Simmons

Airlines, Inc., 62 F.3d 863, 869 (7th Cir. 1995).

The burden then shifts to the VA to articulate a

legitimate, nondiscriminatory reason for

Johnson’s discharge. Parkins, 163 F.3d at 1038-

39. Johnson, however, bears the ultimate burden

of persuasion that the VA’s proffered reason is

not merely a pretext for discrimination. Id. at

1039. One of the ways in which Johnson can so

demonstrate is to show that the VA’s decision was

more likely than not motivated by discriminatory

animus. Dunning, 62 F.3d at 869.

Here, Johnson introduced evidence supporting the

three required elements of her retaliation claim.

The district court rejected it because it found

that the VA articulated a legitimate,

nondiscriminatory reason for her discharge:

Johnson was fired because she broke a department

rule against assaulting one’s superiors. On first

glance, this apparent lack of discriminatory

intent dooms any claim of pretext. However, one

means of demonstrating pretext is to put forth

evidence that employees outside the protected

class who were involved in misconduct of

comparable seriousness were not subject to

similar adverse employment action. Hiatt v.

Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.

1994). In this case, a fact finder might conclude

discrimination was present if it compared the

actions the VA took against Johnson with the

actions it took against Williams. Although their

acts of misconduct were not identical, they are

comparable in that both involved unwanted,

harmful physical contact. Cf. id. at 771

(distinguishing falsification of records from

alcohol-related misconduct). Johnson’s single

strike to Williams’s face may have caused more

physical pain (though that is questionable--the

parties characterize Johnson’s act differently.

Williams claims she punched him, leaving his face

bruised, while Johnson avers that she slapped

him) but his repeated acts of sexual touching

caused Johnson severe emotional and psychological

harm, and, for all we know, equivalent physical

discomfort. After all the dust had cleared,

Johnson--the victim of the harassment--had been

fired and Williams--the perpetrator--was renamed

to the position of Chief of Police.

On this point as well, we find the district

court’s legal analysis incomplete. In the

abstract, we have no quarrel with the idea that

an employer need not tolerate employees who go

around resolving their problems with physical

assaults, however frustrating the established

complaint channels may be. Cf. Staples v. City of

Milwaukee, 142 F.3d 383 (7th Cir. 1998).

Nevertheless, the assault happened in close

conjunction with the VA’s processing of her

harassment grievance, and the record does not

explain why the VA treated Johnson so much more

harshly than it treated Williams, nor does it

reveal how the VA handled similar problems in the

past. This point too will require further

proceedings on remand.

The judgment of the district court is REVERSED and

the case is REMANDED for further proceedings

consistent with this opinion.