Kimberly Passananti v. Cook County

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1182

K IMBERLY P ASSANANTI,

Plaintiff-Appellant,

v.

C OOK C OUNTY, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cv-02803—John W. Darrah, Judge.

A RGUED M ARCH 28, 2012—D ECIDED JULY 20, 2012

Before M ANION, S YKES, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. The Day Reporting Center

of the Cook County Sheriff’s Department ran an inten-

sive supervision program that provided services for

non-violent pretrial defendants. Its program reduced

overcrowding in the Cook County Jail and tried to inte-

grate non-violent individuals into society through super-

vised employment, job training, and substance abuse

treatment. Plaintiff Kimberly Passananti was the deputy

2 No. 11-1182

director of the DRC from 2002 until 2007. For several

years, her supervisor was DRC director John Sullivan.

After losing her job in 2007, Passananti sued, claiming that

Sullivan subjected her to sexual harassment and that she

was fired because of her sex. A jury agreed with her

and awarded her a total of $4.1 million in damages:

$4 million in compensatory damages against Cook

County, and $70,000 in compensatory damages and

$30,000 in punitive damages against Sullivan. The

district court granted defendants’ motion for judgment

as a matter of law and entered judgment for the defen-

dants. Passananti v. County of Cook, 2010 WL 3958645

(N.D. Ill. Oct. 7, 2010). Passananti appeals.

As the case comes to us, on review of a district court’s

decision to grant judgment as a matter of law despite a

jury verdict in favor of Passananti, we must give her

the benefit of conflicts in the evidence and reasonable

inferences in her favor. We must assume: (a) that Sullivan

repeatedly and angrily called Passananti a “bitch” to her

face and in front of their co-workers; (b) that in 2005,

he trumped up charges against her for violating a DRC

policy against tampering with supervisees’ urine

samples; and (c) that he fabricated an accusation that

she had had sexual relations with a supervisee. As a

result of Sullivan’s accusations, Passananti was tempo-

rarily transferred and ultimately sustained a five-day

unpaid suspension. Sullivan left the DRC in July 2006.

Passananti stayed on, but in 2007, she lost her job when

her position as DRC deputy director was eliminated as

part of county-wide budget cuts.

No. 11-1182 3

On Passananti’s sexual harassment claim, we reverse

the district court and reinstate the jury’s verdict as to

liability. The jury could reasonably treat the frequent and

hostile use of the word “bitch” to be a gender-based

epithet that contributed to a sexually hostile work environ-

ment. Passananti also presented sufficient evidence to

allow the jury to find that the gender-based harassment

she suffered was severe and pervasive, and that she

did not unreasonably fail to take advantage of available

corrective measures in her workplace. However, we

affirm the district court’s decision to set aside the jury’s

verdict on Passananti’s discriminatory termination claim,

which simply lacked any evidentiary support. As we

explain below, there was considerable confusion in the

district court’s handling of the different claims and

damage awards, but we can discern that the jury must

have found that $70,000 was the proper amount of com-

pensatory damages on the sexual harassment claim.

The county is the proper defendant on that claim under

Title VII of the Civil Rights Act of 1964. Punitive damages

are not available against the county itself, so we remand

for entry of judgment in favor of plaintiff and against

the county for the sum of $70,000.

I. Rule 50(b) Issues: Standard of Review and Timeliness

Rule 50 of the Federal Rules of Civil Procedure allows

a district court to enter judgment against a party who has

been fully heard on an issue during a jury trial if

“a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue.” Fed.

4 No. 11-1182

R. Civ. P. 50(a) (motion for judgment as a matter of law),

(b) (renewed motion for judgment as a matter of law). We

give a district court’s grant of a Rule 50 motion rigorous

and de novo review. See Schandelmeier-Bartels v. Chicago

Park Dist., 634 F.3d 372, 376 (7th Cir. 2011) (reversing

grant of Rule 50 motion). In deciding a Rule 50 motion,

the court construes the evidence strictly in favor of the

party who prevailed before the jury and examines the

evidence only to determine whether the jury’s verdict

could reasonably be based on that evidence. See Tart v.

Illinois Power Co., 366 F.3d 461, 464 (7th Cir. 2004), citing

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

150-51 (2000). The court does not make credibility determi-

nations or weigh the evidence. See Waite v. Board of

Trustees of Illinois Comm. College Dist. No. 508, 408 F.3d 339,

343 (7th Cir. 2005), citing Reeves, 530 U.S. at 150. Although

the court reviews the entire record, the court “must

disregard all evidence favorable to the moving party

that the jury [was] not required to believe.” Reeves,

530 U.S. at 151.

Before digging into the evidence and the merits, we

must address two procedural issues. Passananti argues

that the district court never should have heard the defen-

dants’ renewed motion for judgment as a matter of law

under Rule 50(b) because (1) they failed first to file a

Rule 50(a) motion for judgment as a matter of law, and

(2) their Rule 50(b) motion was untimely. We disagree

on both points. Rule 50(b) states in relevant part:

If the court does not grant a motion for judgment as

a matter of law under Rule 50(a), the court is consid-

No. 11-1182 5

ered to have submitted the action to the jury subject

to the court’s later deciding the legal questions raised

by the motion. No later than 28 days after the entry

of judgment — or if the motion addresses a jury issue

not decided by a verdict, no later than 28 days after

the jury was discharged — the movant may file a

renewed motion for judgment as a matter of law and

may include an alternative or joint request for a new

trial under Rule 59.

“Because the Rule 50(b) motion is only a renewal of the

preverdict motion, it can be granted only on grounds

advanced in the preverdict motion.” Fed. R. Civ. P. 50(b),

comm. note (2006 amend.); see also Unitherm Food Sys., Inc.

v. Swift-Eckrich, Inc., 546 U.S. 394, 404-05 (2006) (party

forfeited argument not presented in a Rule 50(a) motion

and not renewed in a Rule 50(b) motion).

The trial transcript contradicts the factual basis for

Passananti’s first argument. At the close of plaintiff’s case,

the defense orally moved under Rule 50(a) for judgment

as a matter of law and presented some sort of writing

to the court in support of that motion. The court

reviewed the defense’s written motion and then asked

the plaintiff to respond orally, ultimately taking the

motion under advisement. Tr. Vol. 3B at 36-41. Unfortu-

nately, however, the defense’s written motion discussed

in the transcript was never actually entered in the

court’s docket or made part of the record.

We take this opportunity to remind district courts and

their staffs that it is the district court’s responsibility to

ensure that such documents delivered to the clerk or to

6 No. 11-1182

the judge are made part of the court’s file. See Fed. R. Civ.

P. 5(d)(2), (4). District judges may depend on the help

of the court clerks whom they supervise, but the responsi-

bility remains the judge’s, and here the transcript

indicates that the document was actually in the judge’s

hands.

Like much that happened in this trial, however, this

oversight was harmless. The defendants clearly made a

motion under Rule 50(a) and submitted something on

paper in support of it. In this appeal, the particulars of the

defendants’ Rule 50(a) motion are no longer relevant. It

was not their Rule 50(a) motion that was granted, and

Passananti does not argue that the defendants’ Rule 50(b)

motion, which was granted and is the subject of this

appeal, was beyond the scope of their Rule 50(a) motion.

Passananti also makes no attempt to show that she

was prejudiced in any way by the district court’s error

in failing to docket an important trial document

tendered to the court.1

1

The district court also failed to gather for the record all of the

exhibits admitted or offered as evidence at trial. In its order on

the plaintiff’s motion for reconsideration, the district court

commented: “because neither party filed any trial exhibits on

the docket, other than those submitted in connection with

Defendants’ motion for judgment as a matter of law, it was

difficult to determine whether the exhibit in question had been

offered into evidence.” Passananti v. County of Cook, 2011 WL

198131, at *4 (N.D. Ill. Jan. 18, 2011) (emphasis added). If no

contemporary record is kept, it may be difficult for the trial

(continued...)

No. 11-1182 7

Plaintiff contends next that the defendants’ Rule 50(b)

motion was untimely. It was not. As applicable here, a

Rule 50(b) motion must be filed “no later than 28 days

after the entry of judgment.” The district court did not

enter judgment immediately after the verdict was re-

turned, and in fact did not enter judgment until it ruled

on the defendants’ motion. The Rule 50(b) motion was

therefore timely. Plaintiff takes the argument a step

further, however. Relying on Rule 58, she argues that the

district court committed reversible error by failing to

enter judgment on the jury’s verdict “promptly.” If judg-

ment had been entered promptly, the argument goes,

defendants’ Rule 50(b) motion would have been late. We

put aside the ability of parties to rely on the district court’s

decision not to enter judgment immediately, for the

argument still lacks merit. Rule 58 provides that the clerk

of the court, without awaiting the court’s direction,

must promptly prepare, sign, and enter the judgment

when a jury returns a general verdict, unless the court orders

otherwise. Fed. R. Civ. P. 58(b)(1)(A). The jury reached

its verdict in this matter on June 10. On June 22, the court

1

(...continued)

court to determine after the fact whether a particular exhibit

was offered into evidence, but it is nearly impossible to do so

on appeal. We must again point out that it is the district

court’s responsibility to manage its own files and to ensure

that the record is complete, including all motions, briefs, and

evidence admitted or offered at trial. A district court is cer-

tainly entitled to call upon counsel to assist with this process,

but the ultimate responsibility is the court’s.

8 No. 11-1182

held a status conference and ordered the defense to file

its Rule 50(b) motion by July 21. In other words, the

court ordered otherwise.2

Plaintiff expresses concern that without a firm

deadline, a judgment might never be entered or might be

held hostage indefinitely, citing Ohio-Sealy Mattress

Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 846 (7th Cir. 1978)

(addressing calculation of post-judgment interest). See

also Kiphart v. Saturn Corp., 251 F.3d 573, 587 (6th Cir.

2001) (expressing concern about six-month delay in

entering judgment while Rule 50(b) motion was pending).

We understand the plaintiff’s concern, and Rule 58

makes prompt entry of judgment the norm. Never-

theless, district courts have ample discretion to manage

their cases and to delay entry of judgment if there are

sound reasons to do so. For example, if a verdict would

impose a heavy financial burden on a defendant and

a district court expects to set the verdict aside, it may

be entirely appropriate to delay entry of judgment

because of collateral consequences for the defendant’s

relationship with lenders and others. See, e.g., A.A. Poultry

Farms, Inc. v. Rose Acre Farms, Inc., 683 F. Supp. 680, 683-

84 (S.D. Ind. 1988) (delaying entry of judgment on

2

The briefing was delayed somewhat by plaintiff’s motion for

extension of time to file her response, which was extended

until August 11. Although the plaintiff requested no further

extension of time, her response was not filed until August 12.

The same discretion the court exercised in extending time for

the defendants to file their Rule 50(b) motion was also exer-

cised in favor of the plaintiff in accepting her late filing.

No. 11-1182 9

antitrust verdict of more than $27 million while court

considered and eventually granted defendant’s motion

for judgment as a matter of law), aff’d, 881 F.2d 1396 (7th

Cir. 1989). This case gives us no occasion to consider

the outer boundaries of this discretion. We see no abuse

of discretion in the district court’s decision to postpone

entry of judgment for four months in this case while

it considered and eventually granted the defendants’

motion.

II. Passananti’s Claims

Having passed the procedural obstacles, we turn now

to the merits of Passananti’s substantive legal challenges

to the district court’s Rule 50(b) judgment as a matter of

law. Passananti’s complaint alleged claims of sex dis-

crimination and sexual harassment under both Title VII

and 42 U.S.C. § 1983. The complaint alleged that she

suffered mistreatment at the hands of supervisor

Sullivan and was terminated, and that these events

amounted to sexual harassment and discrimination under

Title VII and a denial of equal protection of the laws

actionable under section 1983. It is not unusual for a

plaintiff’s claims to crystallize as litigation proceeds, and

that’s what happened in this case. In final trial prepara-

tions, Passananti stated her case as follows:

The Plaintiff, KIMBERLY PASSANANTI, claims

that she was subjected to gender discrimination and

sexually harassing conduct by the Cook County Sher-

iff’s Department and Director of the Day Reporting

Unit, John Sullivan, and terminated in March, 2007

10 No. 11-1182

because of her gender. Mrs. Passananti asserts that

the Defendants’ conduct was in violation of Title VII

of the Civil Rights Act of 1991 [sic] and in violation of

the equal protection clause of the 14th Amendment

to the U.S. Constitution.

Joint Statement of the Case, Dkt. 86.3

The law is well established that both Title VII and section

1983 could support both of plaintiff’s claims, for sexual

harassment and discriminatory termination. See, e.g.,

Valentine v. City of Chicago, 452 F.3d 670 (7th Cir. 2006);

Bohen v. City of East Chicago, 799 F.2d 1180, 1187-88 (7th

Cir. 1986); see also Griffin v. City of Opa-Locka, 261 F.3d

1295, 1311-13 (11th Cir. 2001); Moring v. Arkansas Dep’t

of Correction, 243 F.3d 452, 455-56 (8th Cir. 2001); Southard

v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th

Cir. 1997) (collecting cases); Lankford v. City of Hobart, 27

F.3d 477, 480 (10th Cir. 1994). Both theories of liability

support claims of sex discrimination, including termina-

tion based on sex, and sexual harassment is also a type

of sex discrimination. Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57 (1986).4

3

Passananti suggests that she also brought independent claims

of discriminatory transfer and suspension. She has failed to

develop those claims on appeal, however, and they are

waived. See United States v. Collins, 604 F.3d 481, 487 n.2 (7th

Cir. 2010).

4

That is not to say that Title VII and § 1983 claims are identical.

For example, only persons “acting under color of law” may be

(continued...)

No. 11-1182 11

Despite this overlapping legal coverage of plaintiff’s

evidence, midway through trial, and unprompted by

the defendants, the district court split Passananti’s claims

into one claim under Title VII and another under § 1983.

On the afternoon of the second day of trial, this exchange

occurred between the court and plaintiff’s counsel:

Court: And your theory of hostile work environment

is, because these two women told the plaintiff about

it, that created a hostile work environment. Is that

your theory?

Counsel: No, that’s not my theory. My theory is that

testimony goes to policy and practice.

Court: And what does policy and practice go to?

What count?

Counsel: Count 3 I believe it is.

Court: What is that count?

4

(...continued)

sued under § 1983, while Title VII applies to all employers

with more than 15 employees. Such differences are not

material to Passananti’s appeal, except for one. Title VII autho-

rizes suit only against the employer. Individual people who

are agents of the employer cannot be sued as employers under

Title VII. Under § 1983, however, individuals may be liable.

Compare Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995)

(holding that supervisor may not held liable in his individual

capacity for discrimination under Title VII), with Patterson v.

County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“individuals

may be held liable under §§ 1981 and 1983 for certain types

of discriminatory acts”).

12 No. 11-1182

Counsel: It’s 1983.

Court: And what are you pleading in 1983?

Counsel: Equal protection.

Court: In what regard? What was the gravamen of the

denial of equal protection?

Counsel: Gender discrimination.

Court: In what specific regard?

Counsel: In terms of her reassigment . . .

Court: Her termination?

Counsel: Her termination.

Court. And this somehow goes to that?

Counsel: Yes. I think this goes to the . . . how that . . .

how women were treated in that unit.

Court: But your theory is that she was discriminated

against by being terminated.

Counsel: Yes.

Court: There’s no relevancy here. I’m going to sustain

the objection.

Tr. Vol. 2B, at 41-42. Based on this exchange, the district

court held that Passananti had brought her sexual harass-

ment claim under Title VII and had brought her discrimi-

natory termination claim under § 1983. The issue in

this exchange, though, was the relevance of one wit-

ness’s testimony to Passananti’s claims, not the legal

framework of her claims. Nothing indicates that

Passananti’s counsel understood or should have under-

No. 11-1182 13

stood the import the district court later gave this dialogue.

Nevertheless, Passananti did not object, and once the

verdict was rendered, the parties followed the court’s lead

in their post-trial and appellate briefing. They treated

Passananti’s sexual harassment claim as having been

brought only under Title VII and treated her discrim-

inatory termination claim as having been brought only

under § 1983. And, if the plaintiff has any sense of this

error, she has not appealed it. In fact she maintains

this construct on appeal. For this reason and no

other, we follow the lead of the parties and the district

court — though, in an attempt to provide a little clarity,

we refer to Passananti’s claims as her sexual harassment

claim and her termination claim.

A. Sexual Harassment Claim

The following facts are drawn from the trial record

and are taken in the light most favorable to Passananti, the

non-moving party who won the jury verdict. Passananti

began working for the Day Reporting Center of the Cook

County Sheriff’s Department in 1994 as an investigator.

In 2002 she was promoted to deputy director of the

DRC. As deputy director, Passananti was responsible

for the day-to-day operations of the DRC. Around that

same time, John Sullivan became director of the DRC

and Passananti’s immediate supervisor.

From 2003 until Sullivan left the DRC in 2006,

Passananti testified, Sullivan’s conduct toward her was

“very demeaning, degrading and demoralizing.” Specifi-

cally, he called her a “bitch” on “numerous occasions,”

14 No. 11-1182

over a “progressive period of time.” Tr. Vol. 1 at 28.

Sometimes he called her a “stupid bitch.” Sullivan also

treated other women in the DRC this way: an investi-

gator in the DRC, Sally Guide-Campillo, testified that as

she was leaving Passananti’s office in April 2006, she

heard Sullivan say to Passananti, “what is that fucking

bitch doing in here this time?” Tr. Vol. 3A at 19-20. A

month later, Guide-Campillo overheard Sullivan tell

another supervisor, “you better instruct that F’n bitch to

dress appropriately,” regarding a female DRC employee.

Id. at 23.

In August 2005, Sullivan called Passananti into his

office and told her that he was going to open an investi-

gation into “a violation.” When Passananti told him

that there was no violation, he started screaming at her

and told her to “shut the ‘F’ up, you lying ‘B’.” He

then informed Passananti that he was seeking her sus-

pension for having sex with a DRC participant, an ac-

cusation that we must assume was a complete fabrica-

tion. Sullivan also accused Passananti and her

subordinate investigators of releasing rather than re-

incarcerating a DRC participant who had been caught

tampering with his urine during a drug test. Prior to this

incident, other “urine tampers” had been handled on a

case-by-case basis and were considered to be minor

infractions. Tr. Vol. 2A at 9. In Passananti’s case, though,

Sullivan forwarded his charges to the Sheriff’s Depart-

ment’s internal affairs office, which was informed that

the charges against her involved “tampering with drug

samples for an inmate, and then improper conduct with

an inmate in a [sexual] relationship.” Tr. Vol. 3A at 53-

No. 11-1182 15

54. During the ensuing investigation, Passananti was

transferred to a different department and given work as

a secretary. She received and served a five-day suspen-

sion without pay, but she was later reinstated to her

position as deputy director of the DRC. The male em-

ployees involved in the same incident were not trans-

ferred and were never disciplined. Tr. Vol. 2A at 12.

To protest the investigation, her transfer, and Sullivan’s

repeated and demeaning use of the word “bitch,”

Passananti wrote a ten-page letter to Dan Gallagher,

special counsel to the Sheriff’s Department. She alerted

him to her belief that she was being targeted for

discipline because she was a woman. Gallagher for-

warded her letter to the Sheriff’s Department’s internal

affairs office, but Passananti’s complaint was not investi-

gated. Sullivan permanently left the department in

July 2006 for medical reasons. Passananti continued at

the DRC until her termination in March 2007. She offered

no evidence at trial that she suffered any sexual harass-

ment between Sullivan’s departure and her termination.

To prevail on her sexual harassment claim under

Title VII, Passananti needed to show the following: (1) her

work environment was both objectively and subjectively

offensive; (2) the harassment she complained of was

based on her sex; (3) the conduct was either severe or

pervasive; and (4) there was a basis for employer lia-

bility. See Dear v. Shinseki, 578 F.3d 605, 611 (7th Cir. 2009).

To be actionable as sexual harassment, the unwel-

come treatment need not be based on “unwelcome sex-

ual advances, requests for sexual favors or other verbal

16 No. 11-1182

or physical conduct of a sexual nature.” Boumehdi v. Plastag

Holdings, Inc., 489 F.3d 781, 788 (7th Cir. 2007), quoting

Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 505 (7th

Cir. 2004); see also Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 80-81 (1998). Instead, words or conduct demon-

strating “anti-female animus” can support a sexual harass-

ment claim based on a hostile work environment.

Boumehdi, 489 F.3d at 788. In other words, as the district

court recognized, a plaintiff can proceed on a claim

when the work environment is hostile because it is

“sexist rather than sexual.” Id.

1. Hostile Work Environment Based on Sex

The district court ruled that Passananti’s sexual harass-

ment claim failed because no rational jury could conclude

that Sullivan’s language and conduct were directed at

Passananti because she was a woman. The district judge

considered Sullivan’s statements to be “vulgar, rude,

and ungentlemanly,” but, without additional proof, not

sexist. Passananti, 2010 WL 3958645, at *8. “The mere

fact that a defendant used a pejorative term that is more

likely to be directed toward a female than a male does

not alone establish unwelcome sexual conduct.” Id.,

citing Galloway v. General Motors Serv. Parts Operations, 78

F.3d 1164, 1167-68 (7th Cir. 1996), abrogated on other

grounds, National Railroad Passenger Corp. v. Morgan, 536

U.S. 101 (2002).

Our decision in Galloway provides some support for

the district court’s approach, for in that case, the plaintiff

No. 11-1182 17

complained about her treatment by a supervisor who

repeatedly called her a “bitch” or “sick bitch,” and we

ultimately affirmed summary judgment for the em-

ployer on the plaintiff’s sexual harassment claim. A close

reading of Galloway, however, shows that the district

court in this case properly allowed the jury to consider

all the relevant circumstances and that the jury’s verdict

should be upheld. We concluded in Galloway that the

harassment was based not on the plaintiff’s sex but on

personal animosity that arose out of an earlier “failed

relationship” between the plaintiff and the harasser.

78 F.3d at 1168. We took care to limit the scope of our

reasoning in Galloway regarding the use of the word

“bitch”: “We do not suggest, moreover, that the word

‘bitch’ can never figure in a sex discrimination case. When

a word is ambiguous, context is everything.” Id. (emphasis

in original). The word “is sometimes used as a label

for women who possess such ‘women faults’ as ‘ill-

temper, selfishness, malice cruelty, and spite,’ and latterly

as a label for women considered by some men to be

too aggressive or careerist.” Id. In other words, we recog-

nized that such repeated use of the word “bitch” to de-

mean a female employee could support a claim of

sexual harassment if it was sufficiently pervasive or

severe and if the context showed a hostility to the

plaintiff because she was a woman.

This case is different from Galloway because there was

no contextual evidence here that undermined the rea-

sonable interpretation, that Sullivan’s repeated and

hostile use of “bitch” to address and demean Passananti

was based on her sex. No additional proof was necessary

18 No. 11-1182

to allow a jury to find that Sullivan used the word “bitch”

as a gender-specific term and that its impact was to

degrade women in general and Passananti in particular.

We respectfully disagree with the district court on this

point.

We recognize that the use of the word “bitch” has

become all too common in American society, and its

use has permeated many workplaces. Common use,

however, has not neutralized the word as a matter of

law. The Eleventh Circuit sitting en banc issued a stern

opinion on this issue, holding unequivocally that, “when

a co-worker calls a female employee a ‘bitch,’ the word

is gender-derogatory.” Reeves v. C.H. Robinson Worldwide,

Inc., 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (noting

that both the original definition of the term — “the fe-

male of the dog” — and its secondary meanings — “a

lewd or immoral woman” or a “malicious, spiteful, and

domineering woman” — are gender-specific), citing Web-

ster’s Third New International Dictionary 222 (2002). Addi-

tional evidence that “bitch” is “sex based” for purposes

of establishing gender-based harassment is not necessary.

Reeves is consistent with decisions in several other

circuits. “A raft of case law . . . establishes that the use

of sexually degrading, gender-specific epithets, such as

‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch’ . . . has been consistently

held to constitute harassment based upon sex.” Forrest v.

Brinker Int’l Payroll Co., 511 F.3d 225, 229-30 (1st Cir.

2007), citing Winsor v. Hinckley Dodge, Inc., 79 F.3d 996,

1000-01 (10th Cir. 1996) (finding it “beyond dispute” that

plaintiff subjected to “vulgar and offensive epithets” such

No. 11-1182 19

as “whore,” “bitch” and “curb side cunt” could establish

Title VII sexual harassment claim even though abuse

may have been motivated by gender-neutral reasons)

(internal citations omitted); Burns v. McGregor Elec. Indus.,

989 F.2d 959, 964-65 (8th Cir. 1993) (reversing summary

judgment and noting that “a female worker need not be

propositioned, touched offensively, or harassed by

sexual innuendo” to establish sexual harassment claim,

and holding that terms such as “bitch,” “slut,” and “cunt”

directed to female employee amounted to harassment

based on her sex); Andrews v. City of Philadelphia, 895

F.2d 1469, 1485 (3d Cir. 1990) (“[T]he pervasive use of

derogatory and insulting terms relating to women gen-

erally and addressed to female employees personally

may serve as evidence of a hostile environment.”); but

see Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th

Cir. 2000) (opinion of Beam, J.) (“mere use of the word

‘bitch,’ without other evidence of sex discrimination, is

not particularly probative of a general misogynist atti-

tude”), citing Kriss v. Sprint Communications Co., 58 F.3d

1276, 1281 (8th Cir. 1995).

It is also true that the word “bitch” is sometimes directed

not at women but at men. This usage, however, does not

make the word gender-neutral. As the Eleventh Circuit

explained:

[E]ven accepting that Reeves’s co-workers sometimes

used the terms “bitch” and “whore” to refer to men,

this usage may not make the epithets any the

less offensive to women on account of gender. It is

undeniable that the terms “bitch” and “whore” have

20 No. 11-1182

gender-specific meanings. Calling a man a “bitch”

belittles him precisely because it belittles women. It

implies that the male object of ridicule is a lesser

man and feminine, and may not belong in the work-

place. Indeed, it insults the man by comparing him

to a woman, and, thereby, could be taken as humili-

ating to women as a group as well.

Reeves, 594 F.3d at 813.

We do not hold that use of the word “bitch” is harass-

ment “because of sex” always and in every context, just

as we did not hold that it never is in Galloway. Our prece-

dents have made clear that the use of the word in

the workplace must be be viewed in context. See Yuknis v.

First Student, Inc., 481 F.3d 552, 555 (7th Cir. 2007) (“[A]

gender-specific term of abuse, such as ‘son of a bitch,’

need not imply hostility based on the abused person’s

sex any more than saying ‘she is a bad worker’ need

imply hostility based on her sex.”) (emphasis in original)

(internal citation omitted); Galloway, 78 F.3d at 1167-68

(rejecting an automatic inference from abuser’s use of

the word “bitch” that his abuse was motivated by

victim’s gender rather than by personal dislike). But we

do reject the idea that a female plaintiff who has been

subjected to repeated and hostile use of the word “bitch”

must produce evidence beyond the word itself to allow

a jury to infer that its use was derogatory towards

women. The word is gender-specific, and it can reasonably

be considered evidence of sexual harassment.

Whether its use is sufficient evidence of actionable

sexual harassment is, of course, another matter. As with so

No. 11-1182 21

many other things, when gender-specific language is

used in the workplace, these cases and others recognize

that context is key. We must proceed with “[c]ommon

sense, and an appropriate sensitivity” to that context to

distinguish between general vulgarity and discriminatory

conduct or language “which a reasonable person in

the plaintiff’s position would find severely hostile or

abusive.” Oncale, 523 U.S. at 82; see, e.g., Reeves, 594 F.3d

at 810 n.4 (“fucking” may strengthen an attack on women

when used as an intensifying adjective before a gender-

specific epithet such as “bitch,” but when used alone the

word “fall[s] more aptly under the rubric of general

vulgarity that Title VII does not regulate”).

In some instances, it will be apparent that although

the language used is gender-specific, the impact of the

words is neutral. But we could not say as a matter of law

in this case that the impact of Sullivan’s language was

gender-neutral. The jury heard testimony that Sullivan

used the word “bitch” regularly in reference to the plain-

tiff. He did not use the word in jest, but instead used

it together with his threats against Passananti’s employ-

ment. Keeping in mind our deference to the jury’s verdict

and plaintiff’s evidence, we must assume that Sullivan

trumped up a charge of a workplace rule violation to

target Passananti (other, male employees were also

charged, but only she was disciplined). Sullivan also

falsely accused Passananti of having sex with a DRC

participant, a charge for which she was also investigated.

(In law enforcement and correctional work, there must

be few accusations more damaging to an employee’s

reputation than to accuse her of having sex with an

22 No. 11-1182

inmate or supervisee.) In this context, it was error to

treat Sullivan’s repeated and hostile use of the word

“bitch” as a matter of law as merely a “vulgar, rude, or

ungentlemanly” workplace jibe. There was enough on

this record for this jury to determine that when Sullivan

called the plaintiff a “bitch,” he was attacking her based

on her sex.

The district court erred in removing this determina-

tion from the jury’s hands and imposing its own finding.

It was up to the jury to decide about context and credi-

bility, such as what Sullivan’s motivations were when

he repeatedly targeted the plaintiff with vulgar, gender-

based epithets, targeted her for discipline, and made

and then followed through on his threat to accuse

her of work-related sexual misconduct. The jury was

instructed properly to assess this evidence and to deter-

mine whether it believed that Sullivan conducted his

campaign against the plaintiff because of her gender. So

instructed, the jury determined that Sullivan’s conduct

was sex-based and was not neutral. Ample evidence in

the record supports its judgment. The district court’s

rationale for overturning the jury’s verdict on this basis

was error.

2. Severe or Pervasive

It was not enough for the plaintiff to show only that

she suffered mistreatment because of her gender. To rise

to the level of an actionable hostile work environment,

the complained-of conduct must have been sufficiently

severe or pervasive to have altered the conditions of her

No. 11-1182 23

employment such that it created an abusive working

environment. See EEOC v. Management Hosp. of Racine,

Inc., 666 F.3d 422, 432 (7th Cir. 2012), citing Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Factors in

this assessment include the severity of the allegedly

discriminatory conduct, its frequency, whether it was

physically threatening or humiliating or merely offensive,

and whether it unreasonably interfered with the em-

ployee’s work performance. See Gentry v. Export Packaging

Co., 238 F.3d 842, 850 (7th Cir. 2001), quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Offhand comments,

isolated incidents, and simple teasing do not rise to

the level of conduct that alters the terms and conditions

of employment. See Adusumilli v. City of Chicago, 164 F.3d

353, 361 (7th Cir. 1998), citing Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998). This assessment must be

made from both subjective and objective viewpoints. See

Gentry, 238 F.3d at 850, quoting Faragher, 524 U.S. at 787

(to be actionable, the plaintiff’s work environment must

be “one that a reasonable person would find hostile or

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

be so.”) The district court determined that Sullivan’s

treatment of the plaintiff was not sufficiently severe or

pervasive, and overturned the jury’s verdict also on

this basis. Here too, we find error.

There is no question that gender-based comments and

epithets, when used pervasively in the workplace, can

meet the standard for severe or pervasive harassment.

In Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th

Cir. 2007), we reversed summary judgment for an em-

ployer based on the plaintiff’s evidence that her super-

24 No. 11-1182

visor had made “at least eighteen sex-based comments”

to her over the course of ten months, including “that

women do not belong in the pressroom and think they

know everything,” as well as comments directed at the

plaintiff based on how she should dress or how she

was positioned. Id. at 786. We concluded that the super-

visor’s comments were both severe and pervasive

enough to survive summary judgment. See id. at 789.

Our approach in Boumehdi is consistent with that of

other circuits. See, e.g., Tuli v. Brigham & Women’s Hosp.,

656 F.3d 33, 39-40 (1st Cir. 2011) (repeated comments

of male supervisor and co-workers against plaintiff, a

spinal neurosurgeon, were sufficiently severe to sup-

port jury award in favor of plaintiff on hostile work

environment claim; plaintiff was asked to “get up on

the table and dance” at a graduation dinner, was told

that she was “really hot” and was asked to wear a belly-

dancing outfit, and was repeatedly referred to as a

“little girl” while her ability to perform surgery was

questioned); Aponte-Rivera v. DHL Solutions, (USA) Inc.,

650 F.3d 803, 809 (1st Cir. 2011) (upholding jury verdict

in favor of plaintiff on hostile work environment claim

based on evidence that supervisors generally referred

to women as “dumbies” and made several gender-

based comments to plaintiff, including that women were

supposed to do household chores, that the person

running the company had to “have balls,” and that the

company had to be run by a man); Harris v. Mayor and

City Council of Baltimore, 429 Fed. Appx. 195, 202 (4th

Cir. 2011) (reversing summary judgment in favor of

employer on plaintiff’s hostile work environment claim;

No. 11-1182 25

plaintiff showed that harassment was sufficiently severe

or pervasive based on evidence that workshop was deco-

rated with pictures of nude and scantily clad women,

and that women, including plaintiff, were regularly

referred to as “bitches,” “cunts,” and “troublemakers”);

EEOC v. Fairbrook Medical Clinic, P.A., 609 F.3d 320, 328-

30 (4th Cir. 2010) (supervisor targeted plaintiff with

“highly personalized comments designed to demean and

humiliate her” over the course of three years, including

repeated comments about the size of plaintiff’s breasts

and supervisor’s and supervisor’s wife’s genitals, that

were sufficiently severe or pervasive to withstand sum-

mary judgment on plaintiff’s hostile work environment

claim).

In claims of racial harassment, racially-charged words

certainly can suffice. See, e.g., Hrobowski v. Worthington

Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (although

plaintiff failed to show that employer was negligent in

discovering and remedying coworker harassment, his

work environment, in which he was repeatedly subjected

to the word “nigger” and other race-based comments,

was sufficiently severe or pervasive to support an other-

wise actionable hostile work environment claim);

Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675-76

(7th Cir. 1993) (finding an actionable hostile work en-

vironment when supervisors and employees referred to

plaintiff by the term “nigger” between five and ten

times during his employment). We see no reason to

treat gender-based harassment claims any differently as

a matter of law. Context matters, and it will often

present a jury question.

26 No. 11-1182

The defendants do not contend that the jury was in-

structed improperly on this point (or any other). The

jury, which was in the best position to judge witness

credibility and demeanor, heard evidence that Sullivan

called the plaintiff a “bitch” to her face nearly constantly

for several years, from 2003 until 2006. Not only “bitch,”

but, perhaps for greater emphasis, a “lying bitch” and a

“fucking bitch.” See Reeves, 594 F.3d at 810 n.4 (otherwise

gender-neutral profanity can intensify a gender-specific

adjective and can be relevant to a sex harassment claim).

Sullivan used this language against the plaintiff in front

of her co-workers, tending to undermine her authority

in the workplace. Moreover, Sullivan did not use this

gender-charged word in isolation. He also accused

Passananti of violating a department “urine tamper” rule

and of having sex with a DRC participant. These accusa-

tions led to her temporary transfer and suspension.

Applying proper instructions, the jury found that

Sullivan’s epithets and actions unreasonably inter-

fered with the plaintiff’s ability to do her job — after all,

his behavior had a tangible impact. The evidence was

sufficient evidence for the jury to find that Sullivan’s

conduct was so severe and/or pervasive as to have

altered the conditions of her employment through an

abusive working environment.

In support of the district court’s judgment, the defen-

dants argue that the plaintiff’s working conditions

could not have been subjectively so terrible after all

because she did not submit an official departmental

complaint form to internal affairs or to the Inspector

General’s office concerning Sullivan’s harassment. The

No. 11-1182 27

defendants were entitled to make this argument to the

jury, and they did so, but the jury heard other evidence

that pointed in the opposite direction. The plaintiff

did indeed report Sullivan’s conduct. As described

below, she wrote a detailed letter to the Sheriff’s

special counsel. Her letter reached the Inspector

General’s office, but there is no evidence that the

Sheriff’s Department ever conducted an investigation

or followed up in any way on the plaintiff’s com-

plaint. After Passananti complained once to no avail,

the jury easily could have found, as Passananti testified,

that further complaints would have been futile.

Moreover, there is other evidence in the record sup-

porting the jury’s finding that the plaintiff felt sub-

jectively that Sullivan’s treatment was hostile. The day

she was transferred out of the DRC, she became “hysteri-

cal,” crying and yelling, and was unable to drive

herself home. The situation was “horrifying . . . just to

know that somebody had that much — had that much

power over you that no matter what you said, no

matter what the truth was, that it didn’t matter. Nothing

mattered at that point except for where it was going

and how he was screaming at me.” Passananti also

testified that she suffered from ongoing physical ail-

ments as a result of her treatment in the Sheriff’s Depart-

ment, specifically depression, anxiety, insomnia and

stomach problems. Her condition was severe enough

that she sought medical treatment and was prescribed anti-

anxiety medication. From all of this evidence, the jury

easily could have concluded that the plaintiff found

her workplace subjectively hostile even if she did not

file another formal complaint.

28 No. 11-1182

3. Employer Liability and the Faragher-Ellerth Defense

When no tangible employment action is taken against

the employee in the course of the harassment, an

employer may raise an affirmative defense to liability

that must be proved by a preponderance of the evi-

dence. See Burlington Industries Inc. v. Ellerth, 524 U.S.

742, 765 (1998). The defense comprises two necessary

elements: (a) that the employer exercised reasonable care

to prevent and correct promptly any sexually harassing

behavior, and (b) that the plaintiff-employee unrea-

sonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to

avoid harm otherwise. Id.; Faragher v. City of Boca Raton,

524 U.S. 775, 807-08 (1998). This defense attempts to

strike a careful balance. It holds employers liable for

certain specific misuses of supervisory authority while

encouraging all parties involved to take appropriate

steps to avoid harm. See Faragher, 524 U.S. at 805-07. The

district court reversed the jury’s verdict on sexual harass-

ment also on the basis of this affirmative defense,

finding as a matter of law that the defendants satisfied

their burden of showing that they exercised reasonable

care to prevent and correct sexual harassment, and

that Passananti unreasonably failed to take advantage

of available preventative or corrective opportunities.

We disagree.

As an initial matter, we face a confused record as

whether the defendants waived the affirmative defense

and whether it was otherwise appropriate to instruct

No. 11-1182 29

the jury on the defense.5 Although the defendants consis-

tently denied the merits of Passananti’s claims at every

stage of the litigation, the only affirmative defense

they raised in their answer was qualified immunity for

defendant Sullivan. Less than five weeks before trial,

the defendants tried to amend their answer to assert

additional affirmative defenses, including the Faragher-

Ellerth defense. The district court denied the late motion

to amend (rightfully, in our opinion) on the grounds

that the defense had failed to show that their untimely

amendment was not the product of undue delay and

that Passananti would not be unduly prejudiced by the

5

This problem and others were at least facilitated if not caused

by the hands-off approach the district court seemed to take

regarding the jury instructions and verdict form. The court

permitted the parties to draft these crucial documents, and it is

not apparent from the available record on appeal that the

district court played any role in the drafting process other than

holding a very brief conference reviewing the parties’ joint

proposed instructions and directing counsel to modify the

instructions in minor ways to conform to the court’s earlier

ruling and this court’s pattern instructions. See Tr. Vol. 3B at 30-

35. We recognize that busy district judges may prefer to let

parties reach agreement on as many instructions as possible,

especially in civil cases, where agreement can waive what

would otherwise be reversible error. In this case, however, the

end result was an agreed set of instructions and verdict form

that were inconsistent and confusing. Many of these issues

might have been avoided if the court had taken command of

the instructions and taken responsibility for presenting a clear

and coherent set of instructions to the jury.

30 No. 11-1182

amendment. Yet the parties jointly submitted agreed jury

instructions that incorporated the affirmative defense,

and the district court delivered the joint instruction

containing the affirmative defense to the jury, contrary

to its earlier ruling. Because Passananti cooperated in

drafting the proposed instructions and did not object to

the inclusion of the affirmative defense — waiving any

argument she might have had regarding waiver — we

proceed to a more troubling aspect of the defense, but

one that was also waived and probably harmless in the

end.

The Supreme Court has conditioned the availability

of the Faragher-Ellerth defense on the absence of a tangible

employment action. See Pennsylvania State Police v.

Suders, 542 U.S. 129, 143 (2004); Ellerth, 524 U.S. at 765;

Faragher, 524 U.S. at 807-08; Huff v. Sheahan, 493 F.3d 893,

901 (7th Cir. 2008) (trial court committed reversible error

by instructing jury on employer’s affirmative defense

without also instructing jury to decide whether em-

ployer’s denial of case leads to plaintiff and denial of

plaintiff’s transfer were tangible employment actions,

which would have barred the affirmative defense), citing

Jackson v. County of Racine, 474 F.3d 493, 501 (7th Cir.

2007) (liability is “strict” when harassment by super-

visor is accompanied by an official employment

action such as discharge, demotion, or undesirable reas-

signment).

In this case, Passananti presented evidence that she

was subject to tangible employment actions connected to

Sullivan’s harassment. She was transferred to a dif-

No. 11-1182 31

ferent department pending the investigation and was

suspended for five days due to Sullivan’s accusations

that she had violated the “urine tamper” rule and had

had sex with a DRC participant. The jury was not in-

structed to decide whether these employment actions

were sufficiently tied to Sullivan’s harassment so as to

preclude the defendants’ affirmative defense. This lapse

could easily amount to reversible error, see Huff, 493

F.3d at 904-05, but here again, Passananti waived the

issue for appeal. She failed to object to the instruction,

failed to raise the issue in response to the defendants’

Rule 50(b) motion, and failed to raise the issue in her

opening brief on appeal.

The potential error turned out to be harmless. Even

though the jury instructions seem to have erred in favor

of the defense, the jury found that the defendants had

not satisfied their burden. That finding is supported

by sufficient evidence in the trial record. Accordingly,

we reverse the district court’s ruling on this issue.

The defendants built their Ellerth-Faragher defense

on the Sheriff’s General Order 3.7A and Passananti’s

familiarity with it. General Order 3.7A defined sexual

harassment and outlined department procedures for

handling complaints and investigations. The order also

provided a formal complaint form for a complaining

employee to give to her supervisor. (If the supervisor

was the harasser, the complainant was to give the form

to the next person in the chain of command.) The form

was not detailed. It asked for basic information about

the complainant and asked the complainant to “briefly

32 No. 11-1182

summarize the circumstances giving rise to your com-

plaint, including who, what, when, where, time of

incident and witnesses (Use additional sheet if neces-

sary).” The supervisor receiving the report was to

submit the complaint to the Inspector General’s office

through internal affairs. The Inspector General’s office

was responsible for reviewing the claim and conducting

an investigation. Passananti was very familiar with

General Order 3.7A and the Sheriff’s sexual harassment

policy. As part of her job, in fact, she taught the policy

to new recruits. Yet to complain about Sullivan’s

conduct, Passananti did not fill out the form attached

to General Order 3.7A. Her failure to comply with the

policy she trained others to follow was the centerpiece

of the defense. The tactic, though, proved to be a double-

edged sword.

The jury heard evidence that undermined the defen-

dants’ reliance on Passananti’s failure to follow the letter

of the formal complaint procedure. The former director

of internal affairs testified that employees could com-

plain about sexual harassment in any number of ways,

including going to their supervisor, their supervisor’s

supervisor, or directly to the Inspector General’s office.

Tr. Vol. 3A at 43-44. And, having been painted by the

defense as an “expert” in General Order 3.7A, Passananti

herself testified about the difference between the official

department policy and the unofficial department

practice in her actual experience:

The policy says that this is what’s going to happen:

You are going to write a complaint, . . . an investigation

No. 11-1182 33

is going to be opened, we are going to do an investiga-

tion, we are going to question people, we are going

to be fair and open-minded, and we are going to

look at all the facts and we are going to make a deter-

mination. . . . The practice says if you put it in writing

and you make a complaint, you are going to be de-

moted, you are going to be punished, . . . you’re going

to be in a lot of trouble.

Tr. Vol. 1 at 46-47.

Passananti backed up this testimony with details. In

2006, when she was discussing another employee’s com-

plaint of sexual harassment with Sullivan, he told

her, “we can’t have these allegations going on at Day

Reporting” and that “he just wanted this to go away.”

Tr. Vol. 1 at 43, 45. Regarding a second complaining

employee, Sullivan told Passananti that the employee

needed to “quit putting things on F’g paper,” and to

“quit putting documentation on paper and sending it

to the [Inspector General].” Tr. Vol. 1 at 47, 124. The jury

heard other evidence that supported Passananti’s deci-

sion to use outside channels to complain. Jeanie Foster,

a DRC investigator, confirmed Passananti’s belief. She

testified that she had followed the protocol for making

an internal complaint of sexual harassment pursuant

to General Order 3.7A, but the Sheriff’s Department took

no action as a result. Tr. Vol. 2A at 47 (Q: “When you

employed the terms of the policy, was any action

taken?” A: “No.”).

Instead of following the formal policy, Passananti

testified, she sent a detailed letter to the Sheriff’s outside

34 No. 11-1182

counsel, who forwarded the complaint to the Inspector

General’s office, where any sexual harassment com-

plaint was supposed to go. Passananti testified at trial

that she wrote her letter to the lawyer, Gallagher, and

did not complain internally using the official form

because she “knew that if it stayed internally, that it

would never have gotten anywhere, that . . . there’s no

confidentiality. I felt that Mr. Gallagher would take

my best interests to heart and open up an investigation

or get it to the Sheriff so the Sheriff would open up an

investigation as to what was going on in the department.”

Tr. Vol. 1 at 40. She opened her ten-page letter, dated

August 17, 2005, by stating that she was “extremely well

versed” in sexual harassment matters, having previously

served as an expert witness in a federal sexual harass-

ment case on behalf of the Sheriff’s Department. Gen-

erally, Passananti complained that she had:

. . . first hand knowledge that people are doing things

that are not in the best interest of my Sheriff and I

have been privy to enough back door meetings to

know that I am now the target of their aggression.

The number one problem that they have is that I did

not do anything wrong and all they had to do is give

me the respect they would have given a man and

ask me what happened.

Her letter described the circumstances — the “who, what,

when, where, time of incident and witnesses,” to use the

language provided by General Order 3.7A — surrounding

her “unprecedented” transfer pending the investigation

into the “urine tamper incident.” She framed her

detailed description of the urine tamper incident with

No. 11-1182 35

the fact that, at the time of her letter, she was one of four

chiefs in the DRC under investigation for various mis-

deeds. The other three chiefs were male. She was the

only woman, and the only one of the four to be

transferred pending investigation. In other words, she

complained of disparate treatment based on her gen-

der. She told the lawyer that she raised the question

of gender disparity to Sullivan upon being informed

that she was being transferred, but Sullivan “had nothing

further to say.” She testified that she decided not to

include in her letter that Sullivan also had falsely

accused her of having sex with a DRC participant

because she was “mortified” and, although she con-

fronted Sullivan, did not want anyone else to hear

Sullivan’s false accusation. Tr. Vol. 1 at 89-90.

Regarding Sullivan’s language towards her, Passananti

described two incidents in her letter. She first recounted

that on August 5, 2005, at approximately 11:30 in the

morning, Sullivan called Passananti to his office, and, with

the door open and in front of a number of witnesses, he

“began screaming at [Passananti].” Her letter continued:

He screamed “you are on dangerous ground again,”

and I asked “what?”

He screamed “shut the Fuck up!” And began scream-

ing that I let [Investigator] Acevedo get me in trouble

again and I said “what are you talking about?”

He screamed “I said shut up — you Lying Bitch.”

I asked him if he wanted to know the whole story and

he said he didn’t want to hear shit from me and

walked out of the office.

36 No. 11-1182

Later, Passananti and Sullivan spoke again. She was

“crying hysterically” and Sullivan apologized. He apolo-

gized again before she left work that evening. In a second

incident, Sullivan and Passananti were discussing an

office administrative matter. Passananti asked him if

she should ask for a memo from one of the inspectors.

Sullivan responded, “No, you’re a broad, all of these

people bullshit you.”

Attorney Gallagher forwarded Passananti’s letter to the

Inspector General’s office, so her informal written com-

plaint landed in the same office that a formal complaint

made pursuant to General Order 3.7A should have. Yet,

contrary to the directives of General Order 3.7A, no

investigation was ever opened. Passananti also brought

another internal complaint. She complained orally to

Carmalita Wagner, the executive director of the Sheriff’s

training academy. Tr. Vol. 1 at 37-38. Passananti told

Wagner “everything that was going on.” Wagner told

her that Passananti needed to “take one” for the Sheriff,

which Passananti interpreted as meaning that she

needed to “shut up and take it.”

In sum, the jury heard evidence that the Sheriff’s Depart-

ment had adopted an appropriate policy and complaint

procedure, but that in reality the policy and procedure

were ignored. The “mere creation of a sexual harass-

ment policy will not shield a company from its responsi-

bility to actively prevent sexual harassment in the work-

place.” Gentry v. Export Packaging Co., 238 F.3d 842, 847

(7th Cir. 2001). The policy must provide “a meaningful

process whereby an employee can express his or her

concerns regarding an individual within a working envi-

No. 11-1182 37

ronment.” Id. It is not enough that an anti-harassment

policy appears reasonably effective on paper. The policy

also must be reasonably effective in practice. See Manage-

ment Hospitality of Racine, 666 F.3d at 435, citing Clark v.

United Parcel Serv., Inc., 400 F.3d 341, 350 (6th Cir. 2005).

The defendants did not satisfy their burden of showing

the effectiveness of their formal policy. Thus, even as-

suming that it was proper to submit the defense to the

jury, the jury could reasonably conclude that the anti-

harassment policy was ineffective in practice and was

not sufficient to meet the defendants’ burden of proving

their claimed affirmative defense. The jury also could

reasonably find that Passananti acted quite reasonably

in complaining through her letter to lawyer Gallagher,

which reached the office that was responsible for investi-

gating claims of sexual harassment.

At the end of the day, the critical question before the

jury was whether the Sheriff’s Department was put on

notice of the misconduct, “not how the employer came to

have that knowledge.” Cerros v. Steel Tech., Inc., 398 F.3d

944, 952 (7th Cir. 2005) (“The relevant inquiry is . . .

whether the employee adequately alerted her employer

to the harassment, . . . not whether she followed the

letter of the reporting procedures set out in the

employer’s harassment policy.”); see also Phelan v. Cook

County, 463 F.3d 773, 786 (7th Cir. 2006) (finding that

even though plaintiff did not follow the letter of the

harassment policy, the defendant could not reasonably

claim that it did not have sufficient notice of harassment

under negligence standard). General Order 3.7A was

not the only way an employee could raise a complaint

of sexual harassment in the Sheriff’s Department. The

38 No. 11-1182

defendants did not dispute that the Sheriff’s Depart-

ment learned of Passananti’s complaint, which raised

questions of gender discrimination and sexual harass-

ment within the DRC. We do not need to decide here

whether the jury could have found that the defendants

had met their burden on the defense. The jury found

that they had not, and that finding was supported

by ample evidence. The district court erred by resolving

both the question of sexual harassment and the

affirmative defense in favor of defendants as a matter

of law. The jury verdict on liability for the sexual harass-

ment claim must be reinstated.

B. Termination Claim

Passananti also appeals the judgment as a matter of law

on her termination claim. Here again, we construe the

evidence presented at trial strictly in her favor. At trial,

Passananti had to present either direct or circumstantial

evidence showing that she was terminated because of

her gender. See Runyon v. Applied Extrusion Technologies,

Inc., 619 F.3d 735, 739 (7th Cir. 2010), citing Greene v. Potter,

557 F.3d 765, 769 n.1 (7th Cir. 2009). Even under the

stringent standard of review that applies to judgments

as a matter of law, we agree with the district court that

she failed to support this claim. No reasonable jury could

have concluded that plaintiff’s gender played a role in

her March 2007 termination.6

6

Because we affirm the district court’s judgment in favor of

the defendants on Passananti’s termination claim, we need not

(continued...)

No. 11-1182 39

Alexis Herrera was the chief financial officer for the

Sheriff’s Department. In 2007, she was assigned to

prepare a budget that would reduce annual expenditures

in the Department by about $5 million as part of a county-

wide budget reduction, without requiring a reduction

in the jail population. Herrera testified that she initially

proposed to eliminate several community programs

from the Sheriff’s Department. If those proposals had

been accepted, the budget reductions would not have

affected personnel and Passananti would have kept her

job. Tr. Vol. 2B at 73-75. In fact, at the outset of the

process, the Sheriff’s Department advocated full funding

for all personnel, including Passananti’s position.

When the first proposal was made public, however, there

was an outcry. Hundreds of people appeared at public

hearings to speak on behalf of the programs that were

slated for elimination. Tr. Vol. 2B at 75. This pressure

convinced Herrera’s superiors to order her to come up

with an amended proposal, one that made the needed

cuts but retained funding for the community programs.

Id. at 75-76. Herrera’s revised budget proposed cuts to

police officers, janitors, deputy sheriffs, and positions in

the DRC — including Passananti’s position. Id. at 76-79.

Herrera’s recommendation was ultimately approved by

the Cook County Board, and Passananti received notice

on March 3, 2007 that she was to be laid off.

6

(...continued)

address the defendants’ argument that Passananti failed to

satisfy her burden of proving Monell liability against the

municipal defendants to prevail under § 1983.

40 No. 11-1182

There is simply no evidence that the budget decision

was based on Passananti’s gender. When the decision to

eliminate her position was being made, Sullivan was

no longer employed in the DRC. He had gone on

medical leave in July 2006 and never returned to work.

There is no link in the evidence between Sullivan’s

abusive treatment of Passananti and her later termina-

tion. Herrera testified that she was forbidden from

talking with the departments about the proposed layoffs.

She offered unrebutted testimony that she was not

directed by anyone from the Sheriff’s Department to

eliminate Passananti’s position, and she did not have

figures about gender or race, or a list of employee names

in front of her when she was making the recommenda-

tions. No evidence suggests that Herrera was aware

that Passananti held one of the positions she was recom-

mending for termination. See id. at 79.

Passananti argues that the jury was entitled to disbe-

lieve Herrera’s testimony, that she she was singled out

for termination, and that she was the only person whose

job was eliminated in Herrera’s budget proposal. Ac-

cording to plaintiff’s theory, the other positions

Herrera cut were actually unstaffed and the budget cuts

were a smokescreen to cover up the true motiva-

tion of the Sheriff’s Department to cut the budget in

2007 — Passananti’s gender. This is an attempt to substi-

tute speculation for evidence. Sullivan was gone, and

Passananti does not claim or offer evidence that

anyone else in the department harbored any gender-

based animus toward her. Herrera testified without

contradiction that she made the decision to cut

No. 11-1182 41

Passananti’s position and did so unilaterally, without

input from anyone else in the Sheriff’s Department.

Passananti attempts to argue that the other positions that

were eliminated were not actually staffed, but the testi-

mony she cites does not support her contention. See Tr.

Vol. 2B at 88.

Passananti also relies on “Exhibit 2” to support her

theory that Herrera’s testimony was false and that the

2007 budget cuts were actually a cover-up for illegal

gender discrimination. Passananti argues that Exhibit 2

showed that the number of full-time equivalent posi-

tions in the Sheriff’s Department as a whole rose from

6,856.6 to 6,874.3 in 2007, and that overall appropria-

tions also rose from $337,998,421 to $338,129,452. See Pl.

Br. 19-20, citing App. Ex. H.

Given the muddled state of the record, it is not at all

clear that Exhibit 2 was even admitted.7 Even if it was,

those bare figures are meaningless without explanatory

testimony, and Passananti presented no testimony ex-

plaining these figures or this exhibit. The exhibit is over

one hundred pages long. For it to have influenced the

verdict as plaintiff argues, jurors would have had to

find two lines of text on one of those pages during the

trial without any testimony to guide them. Even if the

jurors had managed to find those two lines of text,

7

The district court did not seem to believe that Exhibit 2 had

been admitted, and it refused to provide the exhibit to the

jury during its deliberations. Passananti, 2011 WL 198131, at *4-5.

Passananti has not challenged this ruling on appeal.

42 No. 11-1182

Passananti also fails to explain how it would have

been possible for them to draw any conclusion one way

or the other regarding the decision to cut funding for

her position in the DRC. The figures in Exhibit 2 on

which Passananti relies relate to the entire Sheriff’s De-

partment, not to the DRC, let alone to Passananti. In

short, if Exhibit 2 was the key to showing discrimina-

tory termination, the jury was not given the evidence

it would have needed to reach that conclusion. Without

any evidence from which a reasonable jury could have

concluded that her termination was motivated by her

gender, Passananti’s termination claim must fail. We

affirm the district court’s grant of the defendants’

Rule 50(b) motion on the termination claim.

III. Damages

Because we reinstate the verdict in favor of Passananti

on her sexual harassment claim, but affirm the district

judge’s decision for defendants on her termination

claim, we must address the jury’s damage awards. The

jury found in favor of Passananti and against all defen-

dants on each of her claims, awarding her $4 million in

compensatory damages against the Cook County Sheriff

and $70,000 in compensatory damages and $30,000 in

punitive damages against Sullivan. The defendants

raised no challenge to the damage award in post-trial

briefing, aiming only at the issue of liability, and neither

party has argued on appeal that the damages award

should be remanded to the district court. Because of the

inexact wording of the verdict form and some confusion

No. 11-1182 43

in the district court about lining up the right defendant

with the right legal theory, we might ordinarily have

to order a new trial limited to the issue of damages for

the sexual harassment claim. As it happens, though,

the jury verdict here allows us to do a bit of reverse

engineering to avoid the need for a new trial and leave

in place as much as possible of the jury’s work.

Passananti was claiming two distinct injuries: the

injury from the sexual harassment she suffered while

she was still working, and the injury she suffered from

her later (and unrelated) termination. The best course

in a case claiming more than one distinct injury from

different conduct is usually to ask the jury to determine

liability first and then to determine the amount, if any,

that should be awarded for each distinct injury. Finally,

the jury should be asked any needed questions about

allocating responsibility among multiple defendants. See

generally Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d

293, 312-13 (7th Cir. 2010); id. at 315-16 (Sykes, J., dis-

senting from denial of rehearing en banc). That did not

happen in this case, but the failure to do so was

harmless in the end. All the evidence that Passananti

offered on her sexual harassment claim points to

Sullivan as the perpetrator. She did not offer any

evidence suggesting that any other individual in the

Sheriff’s Department was harassing her. Having failed

to prevail on its affirmative defense, the Sheriff’s De-

partment is vicariously liable for Sullivan’s harassing

conduct under Title VII. See Management Hosp. of Racine,

666 F.3d at 434. No evidence connected Sullivan to

Passananti’s termination, which occurred months after

44 No. 11-1182

he left the department. Even though the jury concluded

wrongly that Passananti’s termination was discrimina-

tory, the jury verdicts against Sullivan provide the

jury’s measure of the injury she suffered from the

sexual harassment.

The verdict as to liability for sexual harassment stands,

but Passananti’s sexual harassment claim was treated,

without objection, as a Title VII claim. Sullivan cannot

be held individually liable under Title VII. See Williams,

72 F.3d at 555 (holding that supervisor may not be

held liable in his individual capacity for discrimination

under Title VII). Thus, the compensatory damage

award and punitive damage award against Sullivan for

sexual harassment must be reversed. As Passananti’s

employer, the Sheriff’s Department can be held liable

for Sullivan’s harassment under Title VII, but it cannot

be held liable for punitive damages. See 42 U.S.C.

§ 1981a(b)(1) (providing that a Title VII complainant

may recover punitive damages “against a respondent

(other than a government, government agency or

political subdivision)”). Using the jury’s award of com-

pensatory damages against Sullivan as the measure

of actual damages, we remand with instructions to

award that amount ($70,000) to Passananti against the

Sheriff’s Department.

Conclusion

To sum up, we reverse the district court’s grant of

the defendants’ motion for judgment as a matter of law

and reinstate the jury verdict in favor of Passananti on

No. 11-1182 45

her sexual harassment claim. We affirm the district

court’s grant of the defendants’ motion for judgment as

a matter of law on Passananti’s termination claim.

We remand with instructions to enter judgment in favor

of Passananti in the amount of $70,000 in compensatory

damages against the Cook County Sheriff’s Department.

The judgment is affirmed to the extent it was in favor

of Sullivan in his individual capacity. On remand,

Passananti may seek a reasonable attorney fee and costs

from the Sheriff’s Department.

7-20-12