McPherson, Leslie D. v. City of Waukegan

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2738

LESLIE D. MCPHERSON,

Plaintiff-Appellant,

v.

CITY OF WAUKEGAN,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 9264—Amy J. St. Eve, Judge.

____________

ARGUED FEBRUARY 19, 2004—DECIDED AUGUST 11, 2004

____________

Before CUDAHY, POSNER and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge. While she was employed by the

City of Waukegan (the City), Leslie McPherson alleges that

she was sexually harassed, battered and subjected to

intentional infliction of emotional distress by her supervi-

sor, Randall Copenharve, and that the City forced her to

resign. McPherson appeals the district court’s grant of sum-

mary judgment on her Title VII claim of sexual harassment

against the City, her claims that the City was liable for

Copenharve’s torts under a respondeat superior theory and

her demand that the City indemnify any judgment against

Copenharve. After considering all of the evidence in the

light most favorable to McPherson, we affirm.

2 No. 03-2738

I.

McPherson began working for the City as a full-time

Clerical Technician I in the Building Department on March 6,

1998. She was promoted to Clerical Technician II sometime

around September 1999. McPherson’s duties consisted gen-

erally of answering telephones, filing and issuing building

permits to applicants. McPherson was one of two clerical

technicians and reported directly to Edna Nieves, the supervi-

sor of the Building Department, who in turn reported to

Copenharve, the Assistant Building Commissioner. Michelle

Weland was the office manager. McPherson took directions

from both Nieves and Copenharve, but it was Nieves who

conducted McPherson’s performance reviews, and those re-

views formed the basis for McPherson’s pay raises throughout

her tenure with the City.1 McPherson had never been dis-

ciplined during her employment. Copenharve had worked

for the City since 1969, and there had never been a com-

plaint of sexual misconduct against him.

According to McPherson, Copenharve began making

allegedly offensive comments to her starting about March

of 1999, when he asked her what color bra she was wearing.

McPherson claims that Copenharve asked this question

openly in the office area a “handful” of times during her

three years with the City. One of McPherson’s co-workers,

Michelle Brewington, testified at her deposition that

Copenharve had made similar comments to her and that on

at least one occasion the office manager, Weland, had

overheard Copenharve ask the female staff, “Okay ladies,

what color is your bra today, does it match the underwear?”

On that occasion, Weland told Copenharve, “That’s enough.

It’s time for you to get out and do your job.” (Appellant’s Br.

1

It is undisputed that Copenharve was McPherson’s “supervisor”

for purposes of her Title VII claim.

No. 03-2738 3

at 17; SA at 34-35.)2 Brewington also testified that Nieves

had been present when Copenharve asked the group of

female employees this question and had laughed it off.

(Appellant’s Br. at 17; SA at 34-35.) While McPherson

claims that the comments made by Copenharve offended

her, she never mentioned his conduct to any of her supervi-

sors and never told anyone that his remarks made her

uncomfortable.

At another time during March 1999, McPherson called in

sick and spoke with Copenharve. Copenharve responded by

suggestively asking if he could “make a house call.” He

asked the same question two or three more times during the

course of McPherson’s employment with the City, but like

the other times that Copenharve’s conduct allegedly of-

fended McPherson, she never complained of or reported his

comments to anyone. Additionally, on several occasions

Copenharve and others from the Department would wander

over to McPherson’s work station and browse through the

Victoria’s Secret catalogs in and on top of her desk.

McPherson recalled an instance when Copenharve was

looking through one of the catalogs, pointed to a particular

outfit and suggested that she might look nice in it. This too

allegedly offended her.

In late February or early March of 2001, Copenharve’s

conduct escalated to include physical contact. According to

McPherson, at a time when they were unobserved by others,

Copenharve asked her what color bra she was wearing and

then pulled back her tank top with his fingers to see for

himself. Although McPherson pulled away from Copenharve,

she never mentioned his conduct to any of her supervisors

and never told anyone, not even Copenharve, that his be-

havior made her uncomfortable. And things soon got worse.

2

References to the Short Appendix attached to Appellant’s Brief

will be designated by “SA at __.”

4 No. 03-2738

On March 21, 2001, Copenharve called McPherson into

his office. She entered and closed the door behind her. No

one could see into Copenharve’s office once the door was

shut. McPherson claims that, as she and Copenharve were

discussing a work document, he slid his hand under her

shirt and felt her breasts. She pulled away and asked him

to stop, telling him that his hands were cold. Copenharve

removed his hand from under her shirt and McPherson left

his office. She finished the workday and returned to work

the next morning. McPherson did not complain about or

report Copenharve’s behavior at the time.

Five days later, on March 26, 2001, Copenharve again

called McPherson into his office and asked her to shut the

door, which she did. McPherson asked Copenharve if he

wanted to talk to her about a particular work issue, and he

replied that he was just having a bad day and needed to be

“cheered up.” (SA at 27.) Realizing that Copenharve had noth-

ing work-related to discuss with her, McPherson turned to

leave his office. Copenharve got up from his desk, ap-

proached her and slid his hand under her shirt, touching

her breasts. McPherson asked him to stop. Copenharve

pushed her toward the wall behind his office door. He then

put his hand down her pants and inserted his finger into

her vagina. McPherson again asked Copenharve to stop and

said, “Somebody is going to walk in.” Id. Seconds later,

Weland opened the door and walked into the office, saying

that she had something for Copenharve. But as the door

was opening, Copenharve pushed McPherson behind it, so

Weland would not see her. Weland dropped something on

the desk and left. Shortly afterward, McPherson also left

Copenharve’s office.

Despite what had just transpired, McPherson worked the

rest of the day, during which she mentioned the incident to

no one. On the following day, McPherson called her friend

(and sister-in-law), Mary Vanderventer, who also happened to

be the mayor’s daughter, and told her something had

No. 03-2738 5

happened. She went to Vanderventer’s house for lunch and

told her (and a City attorney who was present) about the

two incidents that had taken place in Copenharve’s office.

She then returned to work but soon afterward received a

call from Vanderventer telling her that she could go home

for the day. Between the time McPherson left

Vanderventer’s home and the time she arrived back at

work, Vanderventer had contacted her father (the mayor)

and told him what McPherson had told her. Later that

same afternoon, the mayor met with Copenharve, another

City attorney and two other City employees to discuss

McPherson’s allegations. Copenharve was presented with

two alternatives at that meeting: he could either accept a

suspension during the course of the City’s investigation, or

he could immediately resign. Even though Copenharve

insisted that what happened between him and McPherson

was consensual, he chose to resign on the spot rather than

risk what he thought would be certain termination follow-

ing an investigation.3

The City claims that its actions with respect to Copenharve

were in compliance with its policy against sexual harass-

ment, which both prohibited harassing behavior and iden-

tified the available avenues for reporting it. The City also

maintained a “Workplace Violence” policy that encouraged

employees to report incidents of violence.4 McPherson was

aware of the City’s policies and procedures since she had

previously complained about difficulties with another co-

worker through the appropriate channels. Additionally,

3

Copenharve was also indicted by a Lake County Grand Jury. He

was arrested and charged with criminal sexual assault, criminal sex-

ual abuse and battery. He pleaded guilty to attempted criminal sex-

ual assault, resulting in his being placed on felony probation and

ordered to register as a sex offender under Illinois law.

4

McPherson does not contest the district court’s finding that the

City’s antiharassment policies and procedures were adequate.

6 No. 03-2738

McPherson, as a member of the Service Employees

International Union, was covered under a Collective

Bargaining Agreement. That Agreement contained a “Non-

Discrimination” clause and detailed grievance procedures

members were to follow if a suspected breach occurred.

McPherson neither filed a Union grievance about

Copenharve’s conduct nor reported Copenharve’s behavior

to the City until her March 27, 2001 meeting with

Vanderventer.

Even though McPherson did not request it, the City granted

her thirty days of paid leave beginning on March 28, 2001,

which was not counted against any of her accrued time. On

April 26, 2001, McPherson was informed by the City that

she could take an additional twenty-two days of paid leave,

comprising her remaining sick, personal and vacation time.

She was advised that if she felt she needed more time after

that, she would have to apply for a discretionary leave of

absence. With her paid leave nearly used up, on May 10,

2001, McPherson wrote to the City and demanded an

additional ninety days of paid leave with full benefits. On

June 6, 2001, McPherson’s attorney followed up with an

inquiry about the status of McPherson’s employment with

the City. On June 28, 2001, the City responded to

McPherson’s attorney’s inquiry, stating that Copenharve

had resigned; that the “hostile work environment” perceived

by McPherson could no longer possibly exist; that

McPherson was still considered on “active but unpaid”

status; that her position was being filled on a temporary

basis due to the Department’s workload but remained

available to her upon her return to work; and that

McPherson was currently considered absent without leave,

which put her employment at risk. (SA at 8.) The City

ended its letter by stating that it hoped McPherson, whom

it considered a valued employee, would return to work soon.

Later that same day, McPherson’s attorney wrote back to

the City, effectively tendering McPherson’s resignation. The

No. 03-2738 7

letter stated that McPherson felt unable to “return to a

work place that permitted sexual intimidation and created

a hostile work environment.” Id. At some point after

McPherson’s last day in the office, the City arranged for her

belongings to be packed and informed her that she should

come pick them up. The City also asked her to return

certain items of City property.

This lawsuit followed McPherson’s resignation. McPherson

alleged state law claims of battery and intentional infliction

of emotional distress against Copenharve. Against the City,

she brought a claim of sexual harassment under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

She additionally claimed that the City was liable for

Copenharve’s torts under a theory of respondeat superior

and that the City should indemnify any judgment against

Copenharve on her state law claims against him.

The City moved for summary judgment on the three claims

against it. The district court granted summary judgment to

the City on McPherson’s Title VII claim, finding that a

hostile work environment first existed on March 21 (which

the City does not dispute) but that the City was not strictly

liable for Copenharve’s conduct because the so-called

Faragher/Ellerth affirmative defense precluded its liability.

The City was also granted summary judgment on

McPherson’s state law respondeat superior claim based on

the court’s determination that it was preempted by the

Illinois Workers’ Compensation Act. Last, the City was

granted summary judgment on McPherson’s indemnification

claim because the district court found that Copenharve’s

actions had not been within the scope of his employment.

McPherson appeals the district court’s disposition of each of

these claims.5

5

Following the district court’s grant of summary judgment to the

City on the three counts against it, the district court declined to

(continued...)

8 No. 03-2738

II.

We review the district court’s grant of summary judgment

de novo. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir.

2001). To succeed on a motion for summary judgment, the

moving party must show that there is no genuine issue of

material fact and that he or she is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 273, 106 S. Ct.

2548, 2552 (1986). In making this determination the court

must “view the record and all inferences drawn from it in

the light most favorable to the party opposing the motion.”

McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 370 (7th

Cir. 1992) (quoting Lohorn v. Michal, 913 F.2d 327, 331 (7th

Cir. 1990)). We address each of McPherson’s claims in turn.

A.

Title VII forbids an employer

to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual

with respect to [her] compensation, terms, conditions,

or privileges of employment, because of such individ-

ual’s . . . sex.

42 U.S.C. § 2000e-2(a)(1). McPherson claims that the City

violated Title VII by subjecting her to a hostile work en-

vironment based on sexual harassment that ultimately led

to her constructive discharge. In order for McPherson to

prevail on a claim of sexual harassment based on hostile

work environment, she must establish that: (1) she was

(...continued)

exercise supplemental jurisdiction over McPherson’s two re-

maining state law claims, which were against Copenharve but not

the City.

No. 03-2738 9

subjected to unwelcome sexual harassment; (2) the harass-

ment was based on her sex; (3) the sexual harassment

unreasonably interfered with her work performance by

creating an intimidating, hostile or offensive work environ-

ment that affected seriously the psychological well-being of

the plaintiff; and (4) there is a basis for employer liability.

Robinson v. Sappington, 351 F.3d 317, 328-29 (7th Cir.

2003), cert. denied, 124 S. Ct. 2909 (June 28, 2004) (internal

quotation and citations omitted).

The City concedes that a sexually harassing hostile work

environment existed as of March 21, 2001 when Copenharve

first physically touched McPherson. (Appellee’s Br. at 15.)

However, McPherson claims that, when construed in her

favor, the facts establish that the City became aware of

Copenharve’s offensive conduct much earlier than that, yet

it failed to take any action to correct his behavior.

McPherson further claims that the City’s inaction, coupled

with its actions after Copenharve resigned, led to her con-

structive discharge and triggered strict liability. We first

address whether a hostile work environment existed prior

to the March 21, 2001 incident.

1.

To prove that a hostile work environment existed,

McPherson must put forth sufficient evidence that she was

subjected to conduct “so severe or pervasive as to alter the

conditions of employment and create an abusive working

environment.” Hilt-Dyson v. City of Chicago, 282 F.3d 456,

462-63 (7th Cir. 2002) (quoting Faragher v. City of Boca Raton,

524 U.S. 775, 786, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)

(internal citation omitted)). To qualify as hostile, the work

environment must be “both objectively and subjectively

offensive, one that a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be

so.” Id. (quoting Faragher, 524 U.S. at 787); Hostetler v.

10 No. 03-2738

Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000). In

determining whether McPherson’s work environment was

objectively hostile, we must consider all of the circumstances,

including the frequency and severity of the conduct; whether

it was threatening and/or humiliating or merely an offen-

sive utterance; and whether the harassment unreasonably

interfered with her work. Wyninger v. New Venture Gear,

Inc., 361 F.3d 965, 975-76 (7th Cir. 2004).

We have previously observed that determining when

sexual harassment is actionable “is not always easy.”

Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.

1995). In Baskerville, we described the challenges facing

courts in deciding where to draw the line:

On one side lie sexual assaults; other physical contact,

whether amorous or hostile, for which there is no con-

sent express or implied; uninvited sexual solicitations;

intimidating words or acts; obscene language or ges-

tures; pornographic pictures. On the other side lies the

occasional vulgar banter, tinged with sexual innuendo,

of coarse or boorish workers. . . . It is not a bright line,

obviously, this line between a merely unpleasant work-

ing environment on the one hand and a hostile or deeply

repugnant one on the other . . . .

Id. at 430-31 (internal citations omitted).

Since our decision in Baskerville, we have on many oc-

casions distinguished between harassing and merely objec-

tionable conduct. See, e.g., Hilt-Dyson, 282 F.3d at 463-64

(holding that plaintiff’s allegations that supervisor rubbed

her back, squeezed her shoulder and stared at her chest

during a uniform inspection while telling her to raise her

arms and open her blazer were isolated incidents that, even

when taken together, did not create a sufficient inference of a

hostile work environment); Patt v. Family Health Sys., Inc.,

280 F.3d 749, 754 (7th Cir. 2002) (holding that plaintiff’s

complaints of eight gender-related comments during course

No. 03-2738 11

of her employment, including that “the only valuable thing

to a woman is that she has breasts and a vagina,” insuffi-

cient to demonstrate hostile work environment); Adusumilli

v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir. 1998)

(finding plaintiff’s complaints of teasing, ambiguous com-

ments about bananas, rubber bands and low-neck tops,

staring and attempts to make eye contact and four isolated

incidents where a co-worker briefly touched her arm,

fingers or buttocks did not constitute sexual harassment).

With these precedents in mind, we conclude that the inci-

dents that occurred prior to Copenharve’s physical assault

of McPherson on March 21, 2001, although boorish, do not

constitute the severe or pervasive conduct necessary to

create an objectively hostile work environment in violation

of Title VII. While Copenharve’s inquiries about what color

bra McPherson was wearing, his suggestive tone of voice

when asking her whether he could “make a house call” when

she called in sick and the one occasion when he pulled back

her tank top with his fingers were lamentably inappropri-

ate, we agree with the district court that, due to the limited

nature and frequency of the objectionable conduct, a hostile

work environment did not exist until the March 21, 2001

assault.6 That said, we next consider the question of the

City’s liability for Copenharve’s actions of March 21 and 26,

2001.

2.

When a supervisor is the harasser, the employer is strictly

liable for his or her conduct, subject to any affirmative

defenses that may preclude its liability. Parkins v. Civil

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

6

We also agree with the district court’s finding that McPherson

offered no evidence that she subjectively found Copenharve’s

questions and remarks offensive.

12 No. 03-2738

One such affirmative defense was set out in the companion

cases of Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 141

L. Ed. 2d 633, 118 S. Ct. 2257 (1998) and Faragher, 524

U.S. 775, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998). In

Ellerth, the Court stated:

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 employ-

ment action is taken, a defending employer may raise an

affirmative defense to liability or damages, subject to

proof by a preponderance of the evidence . . . . The de-

fense comprises two necessary elements: (a) that the

employer exercised reasonable care to prevent and cor-

rect 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 . . . .

No affirmative defense is available, however, when the

supervisor’s harassment culminates in a tangible em-

ployment action, such as discharge, demotion or unde-

sirable reassignment.

524 U.S. at 765. Thus, in order for the Faragher/Ellerth

defense to be available to an employer, the employer must

not have taken a tangible employment action against the

employee.

McPherson claims that the district court erroneously al-

lowed the City to assert the Faragher/Ellerth affirmative

defense because she was constructively discharged, and her

constructive discharge constituted a tangible employment

action. The City argues that there was no constructive

discharge and hence no tangible employment action, and

that it was entitled to invoke (and, in fact, met the burdens

imposed by) the Faragher/Ellerth affirmative defense. If the

plaintiff is unable to show that a tangible employment

No. 03-2738 13

action took place, the employer is entitled to raise the

Faragher/Ellerth defense.

a.

In order to show that a hostile work environment resulted

in her constructive discharge, McPherson must not only

demonstrate that a hostile work environment existed but

also that the abusive working environment was so intol-

erable that her resignation was an appropriate response.

Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2346,

159 L. Ed. 2d 204, 211 (2004). Constructive discharge refers

to a situation “in which an employee is not fired but quits, but

in circumstances in which the working conditions have

made remaining with this employer simply intolerable.”

Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998).

The “working conditions for constructive discharge must be

even more egregious than the high standard for hostile

work environment because . . . an employee is expected to

remain employed while seeking redress.” Robinson, 351

F.3d at 336; Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d

1044, 1050 (7th Cir. 1998) (quoting Drake v. Minn. Mining

& Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998)). Because we

have earlier found that a hostile work environment did not

exist prior to March 21, 2001, we need only determine

whether the work environment after that date was so

egregious that McPherson was compelled to resign.

The undisputed facts establish that a hostile work envi-

ronment did not result in McPherson’s constructive discharge.

Within hours of learning of McPherson’s allegations against

Copenharve on March 27, 2001, the City convened a meet-

ing during which it demanded that he either submit his

resignation or face suspension during the pendency of its

investigation. Copenharve chose to resign. McPherson, on

the other hand, chose to resign months after Copenharve’s

resignation, when the hostile working conditions created by

14 No. 03-2738

Copenharve were long gone. McPherson has offered no facts to

show that her resignation was “an appropriate response” to an

intolerable work environment.

McPherson also argues that she was constructively dis-

charged by the City’s packing up her belongings, requesting

return of items it owned and filling her position with a

temporary employee. According to McPherson, those actions

made her feel that she would not have been welcome if she

returned to her position. She argues that the district court

ignored those acts of the City when deciding that there had

been no constructive discharge. But in its letters to the

plaintiff, the City encouraged McPherson to return to work

and offered her the prospect of additional discretionary

leave if she felt she needed more time before returning to

work. It informed her that since Copenharve had resigned,

she need not fear that her return to work for the City would

mean a return to a sexually harassing work environment.

“[A]n employee can be constructively discharged only if the

underlying working conditions were themselves unlawful or

discriminatory in some fashion.” Gawley v. Ind. Univ., 276

F.3d 301, 315 (7th Cir. 2001) (internal citation omitted).

The City appears to have made every effort to communicate

to McPherson that her position was open and available to

her as soon as she was ready to return. Because it acted as

any reasonable employer would when one of its employees

is on extended leave, these acts of the City fail to constitute

a constructive discharge. McPherson thus cannot have

suffered a tangible employment action, and the City was

entitled to raise the Faragher/Ellerth affirmative defense.

b.

The first element of this affirmative defense requires the

City to show that it exercised reasonable care to prevent

and promptly correct any sexually harassing behavior.

McPherson argues that the City failed to take any action to

stop Copenharve’s behavior even though it knew that he

No. 03-2738 15

was harassing women in the office and thus failed to meet

its obligation. To bolster her argument, she refers to the

testimony of her co-worker, Michelle Brewington, which

corroborates McPherson’s allegations about the inappro-

priate questions Copenharve asked the female employees as

a group and her claims that Nieves and Weland, the office

supervisor and office manager, had overheard these re-

marks. But as the district court correctly pointed out, the

facts show only that Nieves and Weland overheard

Copenharve ask this question to the female staff on at least

one occasion. There is no evidence that either Nieves or

Weland was aware that Copenharve ever singled out indi-

vidual employees for his off-color questioning. Even assum-

ing for the sake of argument that knowledge of

Copenharve’s comments to the group should be imputed to

the City, the comments on their own did not amount to an

actionable hostile work environment, and there is no reason

they would have put the City on notice that Copenharve’s

behavior would escalate two years later into a physical as-

sault of McPherson. As for the events of March 21 and 26,

2001, the City could not have known about those incidents

until McPherson reported them because they occurred inside

Copenharve’s office, out of sight of co-workers. An employer

cannot be considered to have knowledge of sexual harass-

ment “unless the employee makes a concerted effort to

inform the employer that a problem exists.” Silk v. City of

Chicago, 194 F.3d 788, 807 (7th Cir. 1999) (citations

omitted).7 As soon as it learned that Copenharve had sex-

7

We have found that “notice may be presumed where the work

environment is permeated with pervasive harassment.” Wilson v.

Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999). But here, the

only behavior the City was arguably on notice of was Copenharve’s

occasional jocular questions to the group of female employees

about the color of their bras—inappropriate, to be sure, but not

rising to the level of sexual harassment. “[W]hen, as in this case,

(continued...)

16 No. 03-2738

ually harassed McPherson, the City acted immediately

to investigate, correct and prevent future recurrences of

Copenharve’s behavior. The City met its burden with re-

spect to the first element of the affirmative defense.

As for the second element, the district court found that

the City had adequate preventive and remedial policies in

place to protect its employees from harassment and vio-

lence, and McPherson concedes that she failed to avail her-

self of those policies and that she did not report Copenharve’s

conduct until March 27, 2001. (Appellant’s Br. at 4.) Nor did

she file a grievance with her Union. McPherson’s complaint

that “[t]he district court put the entire burden on [her] to

take some action against her supervisor” (Appellant’s Br. at

18) amounts to nothing more than dissatisfaction with the

requirements of the law. The Supreme Court noted in

Faragher that Title VII’s “ ‘primary objective’ . . . is not to

provide redress but to avoid harm.” 524 U.S. at 806 (1998)

(citation omitted). The “burden” of which McPherson com-

plains is nothing more than an

obvious policy imported from the general theory of dam-

ages, that a victim has a duty “to use such means as are

reasonable under the circumstances to avoid or mini-

mize the damages” that result from violations of the

statute. . . . If the victim could have avoided harm, no

liability should be found against the employer who had

taken reasonable care . . . .

(...continued)

the only possible source of notice to the employer . . . is the

employee who is being harassed, she 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.”

Zimmerman v. Cook County Sheriffs Dept., 96 F.3d 1017, 1019

(7th Cir. 1996).

No. 03-2738 17

Id. at 806-07 (internal citations omitted). Since McPherson

does not dispute that the City acted reasonably in main-

taining and in disseminating to its employees policies and

procedures for addressing and preventing sexual harass-

ment, the burden was on McPherson to avail herself of these

policies and procedures that she well knew were available

to her. Of course, it was the City’s burden to show she had

unreasonably failed to do so—a burden which the City has

met.

Because we find that McPherson was not constructively

discharged, there was no tangible employment action bar-

ring the City from raising the Faragher/Ellerth affirmative

defense. The City has shown that the Faragher/ Ellerth

defense precludes its liability for Copenharve’s actions, and

summary judgment in favor of the City was therefore

proper on McPherson’s Title VII claim.

B.

In addition to Title VII liability, McPherson had alleged

liability under a respondeat superior theory for certain

state law torts committed by Copenharve. Here, the district

court correctly noted that respondeat superior liability is

not available to overcome the preemptive effect of the

Illinois Workers Compensation Act (IWCA), 820 ILCS

305/5(a). The IWCA is an employee’s exclusive remedy for

“accidental” injuries arising out of and in the course of em-

ployment. “The meaning of ‘accidental injury’ as used in the

Illinois Workmen’s Compensation Act has been defined as

an injury which is traceable to a definite time, place and

cause, and occurs in the course of employment unexpectedly

and without affirmative act or design of the employee.”

Hales & Hunter Co. v. Industrial Com., 31 Ill. 2d 139, 141

(Ill. 1964). The Illinois Supreme Court has explained that

intentional torts committed by co-employees are nonethe-

less considered “accidental” for the purposes of the IWCA:

18 No. 03-2738

Unless the employer has commanded or expressly au-

thorized the assault, it cannot be said to be intentional

from his standpoint any more than from the standpoint

of any third person. Realistically, it to him is just one

more industrial mishap in the factory, of the sort he has

the right to consider exclusively covered by the compen-

sation system.

Meerbrey v. Marshall Field & Co., Inc., 564 N.E.2d 1222,

1227 (Ill. 1990) (quoting 2A A. Larson, Law of Workmen’s

Compensation § 68.21 (1988)). One way an employee can

avoid preemption is by showing that his or her injuries were

not “accidental.”8 See Juarez v. Ameritech Mobile

Communications, Inc., 957 F.2d 317, 323 n.4 (7th Cir. 1992).

To show that her injuries were not accidental, McPherson

must do more than merely show that Copenharve acted

within the scope of his employment. Id. In order to avoid

preemption, McPherson must establish that the City itself

“has committed, commanded, or expressly authorized” the

torts against her. Id. The district court found that the City

did not do so, since it lacked knowledge of Copenharve’s

sexual harassment until March 27, 2001, at which point it

responded immediately and effectively.

McPherson concedes that the City cannot be liable under

a respondeat superior theory for Copenharve’s tortious acts.

Instead, she argues that the IWCA does not preempt her

claims because management knew that Copenharve was

making comments about the color of the female office

workers’ bras and did nothing, thus expressly authorizing

his actions and creating an environment in which those ac-

8

There are three other ways in which an employee can avoid

preemption, though none of them is relevant here. The employee

can prove that the injury did not arise from his or her employ-

ment; that the injury was not received during the course of em-

ployment; or that the injury was non-compensable under the

IWCA. See Juarez v. Ameritech Mobile Communications, Inc., 957

F.2d 317, 323 n.4 (7th Cir. 1992).

No. 03-2738 19

tions were permitted to escalate. See Thomas v. Habitat Co.,

213 F. Supp. 2d 887, 892 (N.D. Ill. 2002) (holding that

“management’s knowledge coupled with lack of follow-up

action is equivalent to express authorization of injurious

conduct”). McPherson faces the same problem here that she

did with her Title VII claim. As we have already found, the

City was not aware of Copenharve’s sexually harassing

behavior until March 27, 2001, at which point it acted

promptly and effectively to rectify the situation. Even if we

were to impute to the City Nieves’ and Weland’s knowledge

that Copenharve asked the female employees as a group

inappropriate questions about the color of their bras,

McPherson has presented no facts even hinting that the

City would or should have believed that Copenharve had

any particular interest in her or that these comments would

suddenly escalate two years later into a full-blown physical

assault. There is also no evidence that the City “commanded

or expressly authorized the assault.” Meerbrey, 564 N.E.2d

at 1227 (quoting 2A A. Larson, Law of Workmen’s Compensa-

tion § 68.21 (1988)). Because the City took action immedi-

ately upon receiving McPherson’s complaint and because

the City could not have known any earlier that Copenharve

posed a risk to McPherson, summary judgment in favor of

the City on this claim was proper.

C.

Finally, McPherson argues that there is a genuine issue

of material fact as to the City’s knowledge of Copenharve’s

behavior that precludes entry of summary judgment on her

indemnity claim. The district court found that the City was

immune under the Illinois Tort Immunity Act (ITIA), which

provides that “a local public entity is empowered and

directed to pay any tort judgment or settlement for compen-

satory damages . . . for which it or an employee while acting

within the scope of his employment is liable.” 745 ILCS

20 No. 03-2738

10/9-102 (2002). Since the district court found that

Copenharve’s conduct was not within the scope of his

employment and that the City could not have reasonably

anticipated Copenarve’s allegedly tortious acts, it granted

summary judgment in the City’s favor.

An employer is generally liable for an intentional tort

committed by an employee only when the tort was in

furtherance of his employment, “that is, only if the em-

ployee’s motive, or at least a motive, in committing the tort

was to serve his employer.” Doe v. City of Chicago, 360 F.3d

667, 670 (7th Cir.), reh’g denied, 2004 U.S. App. LEXIS

5662 (2004) (emphasis in original). Citing Dorsey v. Givens,

209 F. Supp. 2d 850 (N.D. Ill. 2001), out of context,

McPherson argues that because Copenharve’s sexual mis-

conduct occurred during working hours at a City building

and Copenharve had lured her into his office on an ostensi-

bly work-related matter, the City could reasonably expect

that Copenharve would become sexually abusive toward

McPherson in the course of his employment. McPherson

misses the point. Unlike McPherson’s respondeat superior

claim, the focus here is on whether Copenharve’s mis-

conduct was within the scope of his employment, not on

whether the City knew that supervisors might sexually

harass subordinates.9 Of course, employers are aware of the

possibility that supervisors might sexually harass employ-

ees while at work; this is, unfortunately, a fact of working

life. But unlike Dorsey, which involved a male correctional

officer who was alleged to have improperly touched a female

inmate, Copenharve’s job did not involve the opportunity for

abuse inherent in “the exercise of officially sanctioned

coercive power by a male over a female.” Dorsey, 209 F. Supp.

9

To the extent the City’s knowledge of Copenharve’s behavior is

relevant to McPherson’s indemnity claim, we have already deter-

mined that the City did not know or have any reason to know that

McPherson was in any danger from Copenharve.

No. 03-2738 21

2d at 852. McPherson has not presented any reason why the

scope of Copenharve’s employment would encompass the

sexual misconduct she complains of.10 Id.; see also Webb v.

Jewel Cos., Inc., 137 Ill. App. 3d 1004, 92 Ill. Dec. 598, 601-

02, 485 N.E.2d 409, 412-13 (Ill. Ct. App. 1985) (holding that

sexual assault, whether rape or fondling, had no relation to

the business of the employer). Thus, according to the ITIA, the

City is not required to indemnify any judgment McPherson

may obtain against Copenharve.11

Because there are no material facts on which a jury could

10

We also note that in Dorsey, the district court felt unable to

“predict that the Illinois courts would conclude that the sexual

misconduct alleged here is within the scope of employment, jus-

tifying indemnification.” Dorsey, 209 F. Supp. at 853. Thus, not even

Dorsey—the only case cited by McPherson in support of this

claim—found that sexual misconduct was within the scope of the

harasser’s employment and thus indemnifiable.

11

McPherson’s characterization of the City as having knowledge

of Copenharve’s misconduct, yet doing nothing to protect its fe-

male employees, is also contradicted by the facts. First, the City

was unaware of Copenharve’s “inappropriate sexual behavior di-

rected toward” McPherson because she had not informed anyone

that Copenharve’s behavior went beyond the occasional inappro-

priate question about bra color to the group of female employees.

(Appellant’s Br. at 21.) Second, Nieves’ and Weland’s knowledge

that Copenharve had occasionally asked this question of the group is,

as we have concluded, not sufficient to put the City on notice that

Copenharve was singling out McPherson or that his behavior

might one day escalate into a sexual assault. Finally, the City did

do something to protect its female employees: it promulgated

policies and procedures designed to effectively deal with sexual

harassment, it made its employees (including McPherson) aware

of them, and it responded swiftly and effectively to McPherson’s

eventual complaint about Copenharve. Even if knowledge and lack

of action were enough for McPherson to prevail, she has not

shown that either of them existed here.

22 No. 03-2738

base a finding that the City should indemnify any judgment

McPherson may obtain against Copenharve, summary

judgment in favor of the City on this claim was proper.

III.

We do not condone the objectionable acts and offensive

sexual misconduct that McPherson’s supervisor un-

disputably committed. But the facts of this case demon-

strate that the City acted reasonably in responding to

McPherson’s complaint, and, as a matter of law, the City

was not liable for those acts. For the foregoing reasons, the

judgment of the district court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-11-04