Hall, Louvenia v. Bodine Electric Co

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4222

Louvenia Hall,

Plaintiff-Appellant,

v.

Bodine Electric Company,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 8050--Charles P. Kocoras, Judge.

Argued September 7, 2001--Decided January 8, 2002

Before Bauer, Easterbrook, and Manion,

Circuit Judges.

Manion, Circuit Judge. Louvenia Hall

sued her former employer, Bodine Electric

Company, alleging that the company

violated Title VII by discriminating

against her on the basis of sex with

respect to its training and promotion

practices, subjected her to hostile

environment sexual harassment, and

retaliated against her for reporting the

harassment. Bodine moved for summary

judgment, which the district court

granted. Hall appeals the decision, and

we affirm.

I.

Louvenia Hall worked as a machine

operator at Bodine Electric Company from

September 9, 1994 until June 14, 1999.

Bodine manufactures small motors for a

variety of machines requiring a quiet

power source for repetitive motors. Hall

operated a grinding machine (a machine

that smooths parts) and a hobbing machine

(a machine that cuts teeth into gears) in

the company’s gearing/hobbing department

("gearing cell").

Shortly after she began working at

Bodine, Hall claims that her supervisor,

Steve Conn, refused to provide her with

orientation training, and that she only

received the training after complaining

to his superior. She contends that this

incident was merely the beginning of a

pattern of discrimination against her by

Bodine when it came to training

opportunities for advanced positions in

the company./1 Hall alleges that Bodine

gave preferential treatment to its male

employees when training opportunities for

advanced positions became available, and

refused to train her for these positions

solely because of her gender.

Hall also alleges that Bodine subjected

her to a hostile environment of sexual

harassment. On June 8, 1999, Hall came to

work wearing a sleeveless blouse with a

sleeveless t-shirt on underneath--she did

not have on a brassiere. Later that day,

Hall was speaking with Samuel Lopez and

Douglas Benson, two of her co-workers,

when Lopez suddenly reached over and

pulled her blouse and t-shirt from her

body, thereby exposing her breast. Lopez

then held out his thumb and exclaimed,

"Her nipples is this damn big!" Hall

attempted to strike Lopez, but he ran

away from her. She then went looking for

her supervisor, Brian Kolka, to inform

him of what had just occurred. By the

time Hall found him, a company meeting

was about to begin, and, before she could

say anything, Kolka requested that they

speak at a later time. The meeting lasted

until the end of the workday, and Hall

went home without informing Kolka of

Lopez’s harassment.

The next morning, tensions ran high in

the gearing cell. Lopez, one of the

cell’s "set-up operators,"/2 assigned

Hall to operate a specific machine, but

she angrily refused to comply with his

directive. Lopez informed Kolka of Hall’s

refusal, and Kolka immediately arranged a

meeting between the three of them to

address the matter. From the outset of

the meeting, Kolka sensed the "vitriol"

between Hall and Lopez, and attempted to

facilitate a constructive dialogue to

ascertain the underlying problem. When

Lopez and Hall refused to stop

interrupting one another, Kolka decided

to end the meeting. Before doing so,

however, he told Hall that Lopez, as a

set-up operator, had the authority to

assign her to any machine in the gearing

cell, and that she was required to follow

his instructions. The meeting ended after

Hall agreed to comply with Lopez’s

instructions in the future. Neither Hall

nor Lopez mentioned the previous day’s

incident during this meeting.

At the conclusion of the meeting, Hall

went to the human resources department to

file a complaint against Lopez for sexual

harassment. She met with Kolka and Mike

Metz, Bodine’s human resources manager,

and related to them what Lopez had done

to her the previous day. Kolka and Metz

then called Rich Meserve, Bodine’s vice

president of human resources, into the

meeting, and requested that Hall repeat

the allegations of her complaint for his

benefit. She did so and also informed

them, for the first time, of other

occasions where Lopez had sexually

harassed her. Hall told them that, on

approximately eight or nine occasions in

October or November of 1998, Lopez rubbed

a small rubber ball with spikes on the

back of her neck in an effort to make her

"nipples stick out." She also claimed

that Lopez often made inappropriate

sexual comments in her presence. When

Hall finished recounting these incidents,

Meserve thanked her for apprising the

company of the conduct, informed her that

an investigation would be commenced

immediately, and told her that she could

return to work. After telling him that

she was too upset to work, Meserve gave

Hall the remainder of the day off with

pay. Meserve then assigned Metz to

conduct an investigation of Hall’s

complaint, instructing him to begin the

process immediately by interviewing

Lopez. Meserve told Metz that after he

interviewed Lopez he was to advise him of

his suspension, pending the outcome of

the investigation. Metz interviewed Lopez

later that day, afterwards informing him

of the suspension. The following day,

Lopez filed a "counter claim" of

harassment against Hall, alleging that

she grabbed his buttocks and made graphic

sexual comments/ gestures about male

genitalia. Bodine responded to Lopez’s

complaint by suspending Hall, and

expanding Metz’s investigation to

encompass both complaints.

Metz interviewed eighteen people,

including Lopez and Hall, during the

course of his investigation. He spoke

with every individual that Lopez and Hall

identified as a potential witness, and a

few others that he determined might have

been stationed in the proximity of the

alleged conduct. Metz made handwritten

notes during these interviews, but

shredded them after typing them into his

computer at the conclusion of each day of

the investigation. Based on the

information he discovered during the

investigation, Metz concluded that Lopez

and Hall had both violated Bodine’s

workplace rules prohibiting sexual

harassment. Metz reported his findings

and conclusions to Meserve who then made

the decision, on June 14, 1999, to

terminate both employees.

On June 11, 1999, three days prior to

her termination, Hall filed charges with

the EEOC alleging that Bodine

discriminated against her on the basis of

her sex, subjected her to hostile

environment sexual harassment, and

retaliated against her for complaining of

the discriminatory treatment and

harassment. Hall filed a second EEOC

complaint on June 18, 1999, alleging that

Bodine fired her in retaliation for

reporting Lopez’s sexual harassment and

because of her gender. After receiving

her right-to-sue letters, Hall initiated

the underlying civil action against

Bodine, suing the company under Title VII

for sex discrimination, hostile

environment sexual harassment, and

retaliatory discharge. The district court

granted Bodine’s motion for summary

judgment on all three claims. Hall

appeals the decision.

II.

We review de novo the district court’s

decision to grant summary judgment,

construing all facts, and drawing all

reasonable inferences from those facts,

in favor of Hall, the non-moving party.

Warsco v. Preferred Technical Group, 258

F.3d 557, 563 (7th Cir. 2001). Summary

judgment is appropriate if there is no

genuine issue as to any material fact,

and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ.

P. 56(c).

A. Hall’s Claim of Sex Discrimination

Hall alleges that Bodine discriminated

against her on the basis of her sex, in

violation of Title VII, by refusing to

train her for advanced positions in the

company, and by giving preferential

treatment to male employees, with less

seniority and experience, when these jobs

became available.

Title VII makes it "an unlawful

employment practice for an employer . . .

to discriminate against any individual

with respect to [her] 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). In

Illinois, an individual must initiate a

sex discrimination claim by filing an

EEOC charge within 300 days of the

alleged discrimination. See Shanoff v.

Illinois Dept. of Human Services, 258

F.3d 696, 701 (7th Cir. 2001). Failure to

do so bars litigation over those claims.

Speer v. Rand McNally & Co., 123 F.3d

658, 662 (7th Cir. 1997); 42 U.S.C. sec.

2000e-5(e) (prescribing limitations

period for discrimination charges). The

300-day time period for Hall to file her

sex discrimination claim excludes any

alleged discriminatory acts occurring

before August 15, 1998. All of the

specific incidents of failure to train

and promote, forming the basis of Hall’s

sex discrimination claim, occurred well

outside of this statutory time period,

and therefore she relies on the

"continuing violation" doctrine to

maintain the viability of her claim.

The continuing violation doctrine allows

a Title VII plaintiff to get relief for

time-barred acts by linking them with

acts occurring within the limitations

period. See, e.g., Shanoff, 258 F.3d at

703; Miller v. American Family Mut. Ins.

Co., 203 F.3d 997, 1003-04 (7th Cir.

2000). When this takes place, we treat

the combination of acts as "’one

continuous act that ends within the

limitations period.’" Shanoff, 258 F.3d

at 703 (citation omitted). Pre-

limitations period conduct does not

become actionable, however, merely

because a plaintiff brings a timely suit

on a limitations period violation. A

plaintiff "may not base her . . . suit on

conduct that occurred outside the statute

of limitations unless it would have been

unreasonable to expect the plaintiff to

sue before the statute ran on that

conduct . . . ." Galloway v. Gen. Motors

Serv. Parts Operations, 78 F.3d 1164,

1167 (7th Cir. 1996). She may, however,

do so in a case where "the conduct could

constitute, or be recognized, as

actionable harassment only in the light

of events that occurred later, within the

period of the statute of limitations."

Id. The doctrine may also apply "when,

after an initial incident of

discrimination, a plaintiff does not feel

’sufficient distress to . . . mak[e] a

federal case.’" Hardin v. S.C. Johnson &

Son, Inc., 167 F.3d 340, 344 (7th Cir.

1999) (citation omitted).

The district court concluded that Hall

could not utilize the continuing

violation doctrine because she: (1)

offered no evidence that a discriminatory

action had been taken against her during

the limitations period, and (2) did not

demonstrate, or for that matter even

argue, that she reasonably failed to

perceive the pre-limitations period

conduct as discriminatory, or as

sufficiently severe enough to warrant

remedial action on her part. Hall argues

on appeal, however, that neither of these

facts precludes her from invoking the

continuing violation doctrine because her

case falls within the ambit of this

court’s decision in Freeman v. Madison

Metro. School Dist., 231 F.3d 374 (7th

Cir. 2000),/3 a case where the doctrine

applied. In Freeman, the plaintiff

brought a Title VII race discrimination

claim against his former employer

alleging that, after suffering a work-re

lated injury, the employer refused to

modify his job duties to accommodate his

new physical limitations, even though it

had previously provided similar

accommodations to white employees. Id. at

376. We held that the district court

erred in precluding Freeman from using

the continuing violation doctrine

"[b]ecause at least some of the decisions

delaying his return to work were made

within the limitations period," id. at

381, and his employer’s pre-limitations

period conduct could have reasonably been

perceived as expressing a willingness to

accommodate his disability. Id.

Therefore, "only with the benefit of

hindsight, after the series of

discriminatory acts, could Freeman have

realized he was the victim of unlawful

discrimination." Id.

The facts of this case are entirely

different from those in Freeman. First,

unlike Freeman, Hall has failed to

identify any discriminatory conduct on

the part of Bodine during the limitations

period of her case. Requiring plaintiffs

to identify a limitations period

violation is necessary to enable courts

to distinguish an ongoing pattern of

discrimination from non-actionable

situations involving the "persisting

effects of past discrimination." Freeman,

231 F.3d at 381. Additionally, by her own

admission, Hall was on notice of the

alleged discriminatory conduct well in

advance of the limitations period. As

early as 1994, she regularly complained

to supervisors that she was not receiving

advanced training./4 Hall argues,

however, that her awareness of the

alleged discrimination is irrelevant

because Bodine, like the employer in

Freeman, promised to eventually train

her, and, therefore, she should not be

penalized for relying on such promises.

We find this argument unpersuasive. There

is simply nothing in the record to

support Hall’s contention that she was

justified in waiting until June 1999 to

complain about Bodine’s alleged refusal

to train her. Whatever claim she may have

had against Bodine, she lost it by

failing to file a complaint within the

time allowed by Title VII. See, e.g.,

EEOC v. North Gibson School Corp., 266

F.3d 607, 617 (7th Cir. 2001) ("the

continuing violation doctrine does not

apply when a time-barred incident cannot

be linked with an incident that occurred

within the statutory period or when the

time-barred incident alone should have

triggered the plaintiff’s awareness that

[her] rights had been violated.")

(citation omitted).

Without the time-barred conduct, the

only evidence left to support Hall’s

claim is an affidavit where she asserts

that "[d]uring the entire time that I

worked for Bodine I was subjected to

discriminatory treatment due to my

gender, female, on a continuing basis."

It is well settled that conclusory

allegations and self-serving affidavits,

without support in the record, do not

create a triable issue of fact. See,

e.g., Patterson v. Chicago Ass’n for

Retarded Citizens, 150 F.3d 719, 724 (7th

Cir. 1998). We, therefore, conclude that

the district court’s decision to grant

Bodine’s motion for summary judgment of

this claim was proper.

B. Hall’s Claim of Sexual Harassment

Hall also alleges that Bodine violated

Title VII by subjecting her to a hostile

work environment. In order to establish a

prima facie case of hostile environment

sexual harassment, a plaintiff must

demonstrate that: "(1) she was subjected

to unwelcome sexual harassment in the

form of sexual advances, requests for

sexual favors or other verbal or physical

conduct of a sexual nature; (2) the

harassment was based on [the

individual’s] sex; (3) the sexual

harassment had the effect of unreasonably

interfering with the plaintiff’s work

performance in creating an intimidating,

hostile or offensive working environment

that affected seriously the psychological

well-being of the plaintiff; and (4)

there is a basis for employer liability."

Parkins v. Civil Constructors of Ill.,

Inc., 163 F.3d 1027, 1032 (7th Cir. 1998)

(citations omitted). We begin with the

fourth element because, as explained

below, Hall has failed to establish a

basis for employer liability, and

therefore cannot prevail on her claim.

An employer’s liability for hostile

environment sexual harassment hinges on

whether the harasser is the victim’s

supervisor or merely a co-employee.

Parkins, 163 F.3d at 1032. "’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.’"

Id. (quoting Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 745 (1998)). In

Parkins, we held

it is manifest that the essence of

supervisory status is the authority to

affect the terms and conditions of the

victim’s employment. This authority

primarily consists of the power to hire,

fire, demote, promote, transfer, or

discipline an employee. Absent an

entrustment of at least some of this

authority, an employee does not qualify

as a supervisor for purposes [of]

imputing liability to the employer.

Id. at 1034.

In this case, Hall argues that her

harasser, Lopez, qualifies as a Title VII

supervisor because he: (1) possessed the

authority to direct her work operations

(i.e., which machines she ran); (2)

provided input into her performance

evaluations, and (3) was charged with

training her and other less experienced

employees./5 Accepting these attributes

as true, as we are required to do in the

summary judgment context, none of them is

enough to bring Lopez within the

definition of a Title VII supervisor--as

there is nothing in the record indicating

that Bodine entrusted him with the

authority to "hire, fire, demote,

promote, transfer, or discipline" Hall.

Moreover, the fact that an employer

authorizes one employee to oversee

aspects of another employee’s job

performance does not establish a Title

VII supervisory relationship. An

individual is not a supervisor unless he

possesses the authority to directly

affect the terms and conditions of a

victim’s employment. See, e.g., Haugerud

v. Amery School Dist., 259 F.3d 678, 696-

97 (7th Cir. 2001) (employer may only be

held vicariously liable for the acts of

those who can be considered the

employer’s proxy--an individual holding a

sufficiently high position in the

management hierarchy of the company). The

type of marginal discretion Lopez had

over Hall’s work operations is not

sufficient to impute Title VII vicarious

liability to an employer. See, e.g.,

Parkins, 163 F.3d at 1034. Additionally,

Hall’s own actions indicate that she

never considered Lopez to be her

supervisor. Whenever she had a complaint,

she spoke with her actual supervisor

(i.e., Steve Conn or Brian Kolka) or the

human resources department, not with

Lopez or anyone else in his capacity./6

Because Lopez was not Hall’s supervisor,

Bodine is liable for his conduct only if

the company was "’negligent either in

discovering or remedying the harassment.’"

Parkins, 163 F.3d at 1032 (citations

omitted); see also Berry v. Delta

Airlines, Inc., 260 F.3d 803, 811 (7th

Cir. 2001); Haugerud, 259 F.3d at 696-97.

An employer’s legal duty in co-employee

harassment cases "will be discharged if

it takes ’reasonable steps to discover

and rectify acts of sexual harassment by

its employees.’" Parkins, 163 F.3d at

1032 (citations omitted); see also Berry,

260 F.3d at 811. Title VII neither

requires nor expects the management of a

company to be aware of every impropriety

committed by every low-level employee.

Parkins, 163 F.3d at 1035. Therefore,

"notice or knowledge of the harassment is

a prerequisite for liability" in co-

employee harassment cases. Id. In

assessing whether an employer had notice

of sexual harassment, "we first determine

whether the employer designated a channel

for complaints of harassment." Id. Where

an employer designates a "point person"

to accept complaints, "’this person

becomes the natural channel for the

making and forwarding of complaints, and

complainants can be expected to utilize

it in the normal case.’" Id. (citation

omitted). If a point person has not been

identified, or is not easily accessible,

"an employer can receive notice of

harassment from a ’department head’ or

someone that ’the complainant reasonably

believed was authorized to receive and

forward (or respond to) a complaint of harassment.’"

Id. (citation omitted). "With respect to

the extent of the notice given to an

employer, however, a plaintiff ’cannot

withstand summary judgment without

presenting evidence that she gave the

employer enough information to make a

reasonable employer think there was some

probability that she was being sexually

harassed.’" Id. (citation omitted).

Hall does not contend that Bodine was

negligent in remedying Lopez’s harassment

of her on June 8, 1999--nor could she

given his rapid termination by the

company. She does, however, tangentially

argue that Bodine was negligent in

"discovering" Lopez’s prior harassment of

her (i.e., the conduct involving the

rubber ball with spikes and inappropriate

sexual comments) because it failed to

implement an "effective" (i.e., published

and widely distributed) sexual harassment

policy. But we have never held that Title

VII employers must institute formal

sexual harassment policies. Instead, we

have focused on whether an employer has a

reasonable mechanism in place for

"detecting and correcting harassment."

Shaw v. Autozone, Inc., 180 F.3d 806, 812

(7th Cir. 1999), cert. denied, 528 U.S.

1076 (2000). See also Gentry v. Export

Packaging Co., 238 F.3d 842, 847 (7th

Cir. 2001) ("a sexual harassment policy

must provide for ’effective grievance mechanisms’"

and "should provide for a meaningful

process whereby an employee can express

his or her concerns regarding an

individual within a working

environment.") (citation omitted).

Bodine had an effective "channel" in

place for Hall to report sexual

harassment in the workplace. On three

separate occasions, Hall complained that

she had been sexually harassed. In each

instance, she knew exactly whom to file a

complaint with--her supervisor or the

human resources department. Additionally,

Bodine responded to her complaints by

either disciplining or terminating the

offending employee./7 Hall concedes

that, prior to the filing of her June 9,

1999 complaint, she never notified Bodine

that Lopez was harassing her, and she

offers no satisfactory explanation on

appeal for her failure to do so./8

Thus, while she claims that Bodine was

"astonishingly unprepared to deal with

problems of sexual harassment," we fail

to see how a formal sexual harassment

policy would have been any more effective

than the mechanism the company already

had in place, especially given Hall’s

unwillingness to report Lopez’s conduct.

Bodine was not only prepared to deal with

sexual harassment, but effectively dealt

with such behavior by addressing each of

Hall’s complaints in an effective and

expeditious manner. An employer is not

liable for co-employee sexual harassment

when the victim, having a mechanism by

which to report the harassment, fails to

do so, and where the record is devoid of

any credible evidence that the employer

should have known that the harassment was

taking place. Cf. Murray v. Chicago

Transit Auth., 252 F.3d 880, 889 (7th

Cir. 2001) (holding that an employee

being sexually harassed by a supervisor

must utilize any mechanisms her employer

has in place for addressing complaints of

sexual harassment).

Hall was sexually harassed by a co-

employee, not a supervisor. Because

Bodine promptly addressed the harassment

upon being apprised of the behavior, the

company may not be held liable for

Lopez’s conduct. As such, the district

court’s decision to grant Bodine’s motion

for summary judgment of this claim was

appropriate.

C. Hall’s Claim of Retaliation

Title VII protects persons not just from

certain forms of job discrimination, but

also from retaliation for complaining

about the types of discrimination it

prohibits. 42 U.S.C. sec. 2000e-3(a) ("It

shall be an unlawful employment practice

for an employer . . . to discriminate

against any individual . . . because

[she] has opposed any practice made

anunlawful employment practice by [Title

VII]."). Hall argues that Bodine violated

Title VII by firing her in retaliation

for reporting Lopez’s sexual harassment.

She does not have direct evidence that it

did so, and therefore proceeds under the

McDonnell Douglas burden-shifting variant

applicable to claims of retaliation.

Miller v. American Family Mut. Ins. Co.,

203 F.3d 997, 1007 (7th Cir. 2000) A

prima facie case of retaliation is

established under McDonnell Douglas when

the plaintiff demonstrates: (1) she

engaged in statutorily protected

expression by complaining about

discrimination that Title VII covers; (2)

she suffered an adverse action by her

employer; and (3) there is a causal link

between the protected expression and the

adverse job action. Id. If Hall

establishes these elements, then Bodine

has the burden of producing a legitimate,

non-discriminatory reason for firing her.

Id. If Bodine succeeds in doing this,

Hall then has the burden of proving that

Bodine’s proffered reason is not true,

but a mere pretext for retaliating

against her. Id.

In reviewing the district court’s

disposition of Hall’s retaliation claim,

we will assume that she has made out a

prima facie case, and move directly to

the question of pretext. See, e.g.,

Rummery v. Ill. Bell Telephone, 250 F.3d

553, 556 (7th Cir. 2001). We do so not

because we are convinced that Hall has

established a prima facie case of

retaliation, but because our analysis of

that issue would substantially overlap

with the question of pretext. See, e.g.,

Olsen v. Marshall & Ilsley Corp., 267

F.3d 597, 600-01 (7th Cir. 2001).

Bodine’s articulated reason for

terminating Hall is that she violated a

company work rule regarding sexual

harassment in the workplace. The company

made this determination at the conclusion

of an investigation of cross-complaints

of sexual harassment made by Hall and

Lopez against one another. Hall contends,

however, that the investigation was a

"sham" designed to fire her. She claims

that this is so because the investigator,

Metz, failed to preserve the handwritten

notes he made each day while interviewing

witnesses, and misrepresented several of

the witnesses’ statements in his final

report to the company. While we agree

that, if true, this type of conduct could

be enough for a reasonable jury to

conclude that Bodine’s proffered reason

for termination was pretextual, the

record does not support Hall’s

characterization of Metz’s investigation.

We begin by noting the complete absence

of any evidence of a pre-investigation

animus between Metz and Hall./9 The

lack of any previous hostility between

these two individuals is a relevant

consideration in evaluating whether Hall

has met her burden of demonstrating that

Bodine’s proffered reason for terminating

her was pretextual. This is especially

true given her contention that Metz’s

characterization of her workplace

behavior was based on a foundation of

"lies and distortions."

The fact that Metz did not maintain his

original handwritten investigation notes

is not evidence of pretext. We have held

that "[e]mployers are not required to

keep every single piece of scrap paper .

. . [created] during the termination

process [and that] [i]t is sufficient

that the employer retains only the actual

employment record itself, not the rough

drafts or processes which may lead up to

it." Rummery, 250 F.3d at 558-59. See

also Jeffries v. Chicago Transit Auth.,

770 F.2d 676, 681 (7th Cir. 1985). Metz

claims that he disposed of the original

handwritten notes because: (1) they were

"very rough," containing "shorthand, full

of misspellings and cross-outs"; (2) the

typed version substantively conveyed

everything contained in the handwritten

notes; and (3) for confidentiality

reasons. We find all of these reasons to

be entirely plausible. Because Hall

offers nothing more than self-serving

speculation, we conclude that Metz’s

failure to preserve his handwritten

interview notes is not, in and of itself,

evidence that his investigation was

conducted in bad faith, or that Bodine’s

reason for firing her was pretextual.

Hall argues that Metz’s animus towards

her is demonstrated by the blatant

distortions he made in his final report

to the company. She claims that he

misrepresented several of the witnesses’

statements, and omitted other statements

from his report that would have cast her

in a more positive light. After carefully

reviewing each of the examples cited by

Hall in support of this contention, we

conclude that her allegation is little

more than hyperbole. In fact, many of the

deposition excerpts she references

actually substantiate Metz’s conclusion

that Hall’s workplace conduct was highly

inappropriate.

Metz’s final report contained summaries

of each interview that he conducted over

the course of his investigation. The

report notes that eight of the sixteen

witnesses Metz interviewed described the

relationship between Hall and Lopez as

mutually inappropriate. According to

Metz, these witnesses stated that Hall

and Lopez touched each other in a

playful, sexual manner on numerous

occasions, constantly told crude sexual

jokes, and frequently made graphic sexual

comments to one another./10 The report

also notes that some of the male

witnesses informed Metz that Hall had

engaged in this same type of behavior

with them as well./11 Hall claims that

some of the incidents mentioned by these

witnesses are either untrue, or have been

taken entirely out of context. She does

not, however, deny the overall allegation

made by these witnesses--that she behaved

inappropriately in the workplace./12

Instead, Hall argues that her workplace

conduct, while inappropriate, does not

amount to Title VII sexual harassment,

and, therefore, Bodine "had no legitimate

reason" to terminate her. She is

mistaken. While Title VII protects

victims of sexual harassment from being

terminated in retaliation for reporting

harassment, an employee’s complaint of

harassment does not immunize her from

being subsequently disciplined or

terminated for inappropriate workplace

behavior. Cf. Durgins v. City of East St.

Louis, Illinois, 2001 WL 1443286, at *1

(7th Cir. November 16, 2001) ("An

employer that finds during an

investigation . . . that it should not

have hired the person in the first place

may decide to end the employment without

any objection that this is ’retaliation’

for the . . . complaint . . . .")

(citation omitted).

Even if we assume that Hall’s tawdry

conduct did not amount to Title VII

sexual harassment, Bodine was still

permitted to terminate her. In fact, the

company’s failure to do so would have

most likely constituted a Title VII

violation (i.e., sex discrimination

against Lopez), as well as subjecting the

company to future liability if another

complaint of harassment was filed against

Hall.

In conclusion, Hall offers no evidence

that her termination was in any way

connected to her complaint of Lopez’s

sexual harassment, or that Bodine’s

reason for firing her was

pretextual./13 We, therefore, affirm

the district court’s decision granting

Bodine’s motion for summary judgment of

this claim.

III.

Hall did not present sufficient evidence

to defeat Bodine’s motion for summary

judgment of her claims. She was not able

to use the continuing violation doctrine

to recover for the pre-limitations period

conduct forming the basis of her sex

discrimination claim. Her claim for

hostile environment sexual harassment was

not cognizable because she was unable to

demonstrate that Bodine was either

vicariously liable for Lopez’s actions,

or negligent in discovering or remedying

his sexual harassment of her. Finally,

she was unable to demonstrate that

Bodine’s proffered reason for terminating

her was pretextual. Because there were no

outstanding issues of material fact

remaining with respect to these claims,

the district court properly granted

Bodine’s motion for summary judgment.

AFFIRMED.

FOOTNOTES

/1 Hall also claims that toward the end of 1994, she

informed Conn that some of her male co-workers

were refusing to help her lift heavy parts in the

work area. This conduct ceased, however, after

she reported the behavior to Conn.

/2 A "set-up operator" has the authority to assign

machine operators to specific machines within a

gearing cell.

/3 Hall made it clear at oral argument that her

"interpretation"of Freeman is really nothing more

than a tacit invitation to this court to overrule

Galloway, 78 F.3d at 1167, and to adopt and

expand the "sufficiently related to" version of

the continuing violation doctrine adopted by the

Ninth Circuit. See, e.g., Morgan v. Nat’l R.R.

Passenger Corp., 232 F.3d 1008, 1015-16 (9th Cir.

2000), cert. granted, 121 S. Ct. 2547 (U.S. June

25, 2001) (No. 00-1614) (permitting Title VII

claimants, alleging an unlawful employment prac-

tice during the limitations period, to recover

for pre-limitations period violations when they

are "sufficiently related to" limitations period

conduct, regardless of whether they were cogni-

zant of the alleged discrimination at the time

the violation occurred). We decline plaintiff’s

invitation, and stand by our decision in Gallo-

way.

/4 While this court is not required to "’scour the

record in search of evidence to defeat a motion

for summary judgment,’" Ritchie v. Glidden Co.,

242 F.3d 713, 723 (7th Cir. 2001) (citation

omitted), we also found three other incidents,

not specifically mentioned in Hall’s appellate

briefs, where she contends Bodine passed her over

for advanced training positions in favor of male

employees with less seniority and experience--

twice in 1996 and once in March 1997. Even were

we to conclude that Hall did not become aware of

Bodine’s alleged discriminatory conduct until

March 1997, her claim would still be untimely.

/5 Jerry Ptak was also a set-up operator during

Hall’s shift in the gearing cell, and he pos-

sessed these attributes as well. Hall concedes

that Ptak provided her with advanced training.

/6 This is especially relevant with respect to

Hall’s complaints about Lopez’s refusal to train

her. Hall admits that she filed several com-

plaints with Brian Kolka advising him of the

situation. She also acknowledges that Kolka had

the authority to correct the problem, and that he

attempted, unsuccessfully in her opinion, to

implement a system that promoted cross-training

of all employees. This demonstrates that Hall

viewed Kolka, and not Lopez, as her supervisor.

/7 In addition to Lopez’s termination, Bodine disci-

plined Leroy Washington in 1998 for grabbing

Hall’s buttocks. Another employee, Ernie Bush,

was terminated for calling Hall a "dumb ass

bitch."

/8 Hall offers three reasons for failing to report

Lopez’s prior harassment of her. First, she

claims that whenever the harassment occurred she

would tell Lopez to stop it, and that afterwards

he would not harass her for several weeks (only

to resume the conduct again). Second, she con-

tends that this type of behavior was "simply part

of the environment [that she] was working in."

Third, she asserts that Bodine did not have a

procedure for filing complaints of sexual harass-

ment.

/9 On the contrary, the record suggests that Metz’s

conduct towards Hall was professional and courte-

ous. For example, after the termination of Ernie

Bush (see fn. 7), Metz escorted Hall in and out

Bodine’s facility for a week, out of a concern

for her physical safety.

/10 Hezekehia Johnson told Metz that Lopez and Hall

"played around with each other equally," that

they were constantly "telling each other sexual

jokes, patting each other on the buttock[s], and

talking about their sexual deeds," and that Hall

told him, on at least one occasion, that she was

touching Lopez in an effort to get his penis

hard. Kevin Ray told Metz that "he heard [Lopez

and Hall] brag about their sexual exploits," and

that Hall "would talk about the size of a man’s

penis, the number of times she had sex, the ways

in which she had sex, and the number of people

she had sex with."

/11 Jorge Santos told Metz that Hall approached him

on the job and stated, "what about it [sic] if I

turn off the light and we could go and do it on

the table." Leroy Washington told Metz that while

he and Hall were working together, she told him

that she wanted to go out with him, and asked

him, "when are we going to a motel?"

/12 Hall’s attorney even concedes on appeal that

"[t]here is some evidence that Hall and Lopez had

a history of exchanging ’dirty jokes’ or sexually

oriented conversation."

/13 Hall’s retaliation claim is further undermined by

the weakness of her sex discrimination and sexual

harassment claims. See Debs v. Northeastern

Illinois Univ., 153 F.3d 390, 396 (7th Cir. 1998)

(decision to reject retaliation claim was "bol-

stered" by weak evidence of discriminatory ani-

mus).