Red Mendoza v. Borden, Inc., D.B.A. Borden's Dairy

CARNES, Circuit Judge,

concurring:

Concurring fully in the judgment of the Court and in Judge Hull’s opinion for it, I write separately to discuss the reluctance courts should have about permitting plaintiffs who claim sexual harassment to rely upon their subjective interpretations of ambiguous conduct. An essential part of Mendoza’s contention that she was sexually harassed is based upon her perception that Page, her supervisor, constantly followed her around and stared at her. That is her perception, or more specifically, what she testified at trial is her perception, of the frequency and the manner in which Page went to where she was in the work place and looked at her during the eleven months she was under his supervision.

Mendoza’s perception that Page had followed her around and looked at her in an offensive way brings to mind a recent Seventh Circuit case in which the plaintiff perceived that her boss had regularly talked to her in a “sexy voice.” See Minor v. Ivy Tech State College, 174 F.3d 855 (7th Cir.1999). The Seventh Circuit’s treatment of the “sexy voice” contention in Minor is instructive. The plaintiff in that case was employed by a public vocational college whose chancellor, a man named Cole, had an office in another town. She claimed that for eleven months Cole called her “almost every day, rarely discussing business.” Id. at 856 . The court described the plaintiffs perception of these daily phone calls as follows:

Cole talked, she thought, in a very friendly way, the way a boyfriend might talk; his voice was sexy; and though he never asked her for a date or proposed any sexual or otherwise erotic connection, she believed that his calls constituted overtures awaiting a response from her. She says that his words were at times “stalker-like” and “had these overtones at certain times that were sexual,” but she does not indicate what the words were that gave her these impressions.

Id. The plaintiff in Minor also said that Cole, her boss, once entered her office and told her he had been watching her through a window, which she thought was “lecherous of Cole,” and it really scared her. Id. There was objectionable conduct, including Cole putting his arms around her, squeezing her, and kissing her while saying, “Now, is this sexual harassment?” Id. at 857 .

The Seventh Circuit affirmed the grant of summary judgment for the defendant in Minor , holding that the “sexy voice” conduct was outside the period of limitations and should not be considered. But the Court went on to hold in the alternative that even if that conduct was considered, there was still insufficient evidence of sexual harassment to avoid summary judgment. The Seventh Circuit explained why this had to be so:

As for Cole’s “sexy voice,” we are concerned about the legal risk that would be placed on employers if a plaintiff in a sexual harassment case could get to a jury on the basis of nebulous impressions concerning tone of voice, body language, and other nonverbal, nontouching modes of signaling. It is one thing to tell a supervisor that he should not propose sex to a subordinate, display pornographic pictures to her, or touch her in a suggestive fashion; those are indeed things that an employer should tell its supervisors not to do. It is another thing for an employer to be required under pain of legal sanctions to make sure that its supervisors never inflect their voice or posture in such a way that a woman might think they were “coming on” to her. That would be a counsel of perfection, and the aims of Title VII are more modest.

Id. at 858 . 1

*1256 Likewise, it is “another thing” for an employer to be. required under pain of legal sanctions to ensure that supervisors never look or stare at a subordinate whom they are supervising in such a way that she might think they were “coming on” to her. That would be, in the Seventh Circuit’s words, “a counsel of perfection, and the aims of Title VII are more modest.” Id. The Seventh Circuit in Minor also recognized that, “[i]t is no part of Title VII to change a ‘hands on’ management style (provided ‘hands on’ is understood metaphorically) merely because it might strike a suspicious .employee as having sexual overtones.” Id. The same is true of an “eyes on” management style. There is an objective as well as a subjective component to a sexual harassment claim. See Harris v. Forklift Systems, 510 U.S. 17, 21-22 , 114 S.Ct. 367, 370 , 126 L.Ed.2d 295 (1993). Stated somewhat differently, Title VII requires a baseline of objectively offensive conduct, and that baseline cannot be met with objectively ambiguous conduct that a suspicious employee subjectively perceives to be improper.

There are good reasons that this is so. In addition to those discussed by the Seventh Circuit in Minor , there is also the problem of perception prevarication. An employee who makes up or exaggerates a description of objective conduct runs a risk of being found out that is greater than the risk run by an employee who is attempting to make a case based upon her subjective impressions. There is more temptation to exaggerate, to “puff,” to put subjective spin on the facts. A plaintiff describing her subjective impressions can say that while her supervisor’s conduct might have appeared neutral to some, she felt, believed — just knew — it was lecherous. That is what the plaintiff in Minor said about the voice her boss used when talking with her: sh’e considered it “sexy” and stalker-like. Id. at 856 . Similarly, Mendoza testified that when her boss was looking at her, he was staring in an offensive manner; and when he turned up where she was in the workplace, he had followed her there.

And what could Page or any other supervisor accused of doing something that was objectively neutral but perceived by a subordinate to be lecherous do to rebut testimony about those perceptions? If an employee says that her supervisor looked or stared at her in a sexy way, or spoke to her in a sexy voice, or did both things, how is a supervisor who is innocent of any lecherous intent or thoughts to establish his innocence? Supervisors must observe, *1257 look at, and speak to employees they supervise; they regularly go about the work place to see what employees are doing, and sometimes follow them around on the work site. And supervisors should be free to do so without being hauled into court every time an employee — who may well have other reasons to be unhappy with the supervision — perceives the supervisor’s constant presence, or the way he looks at her, or the tone of his voice, or the way he stands, or the way he walks, to be offensive to her.

This case illustrates the dangers of permitting litigation by perception. At her deposition, Mendoza was questioned about her claim that Page had followed her around the workplace:

Q. The second thing you mentioned was that Dan Page followed you all over the place.

A. Yes, he did, several times. This happened several times, two, three times that I can remember. I would go to the routeman’s room reference paperwork. And when I would come out, go to the left to go back to my office, he would be at the end of the hall and watching me and smiling at me. Several times I laughed in his face. He might have taken it to be a smile like I enjoyed it. It wasn’t a smile. I laughed in his face.

For Mendoza, the problem with her perception about Page following her around only “several times, two, three that I can remember,” as she described it under oath at deposition, is that it was unlikely to get her to the jury, to give her a chance at recovery from the company that had terminated her because she failed to come to work for three consecutive days. Given the nature of perceptions, however, that was no problem for Mendoza. When she got to trial, she simply changed her perception. During her trial testimony, she no longer perceived that Page had followed her around only “several times, two, three times that I can remember,” but instead perceived that he had followed her around “constantly.”

The Court does well to rule out litigation by perception and require objectively offensive conduct that is itself severe or pervasive before a Title VII claim can go to a jury.

. The Minor court correctly recognized that "stalking a female employee crosses the line," id. at 858 , but also rejected any notion that the employee's perception of whether she had been stalked is controlling. The plaintiff in that case testified that she perceived the conduct of Cole, her supervisor, to be "stalker- *1256 like.” Id. at 856 . Instead of accepting her characterization, or even considering it as evidence (“there is no evidence of [stalking] here”), the court considered the objective conduct involved and reached its own conclusion, which is that there had been no stalking. Id. at 858 .

In reaching that conclusion, the Minor court noted: "Cole did not follow Minor about, or drive past her home, or call her late at night, or query her about her personal life. He did not engage her in conversations about sex or love.” Id. at 858 . Although Mendoza did testify that Page followed her about the workplace, that is not enough to distinguish this case from Minor — to make this a "stalker” case. As the context of Minor's remark about Cole not following Minor about makes clear, the court there was talking about off-hours conduct (“or drive past her home, or call her late at night”), or conduct that had no conceivable connection to supervisory duties (“He did not engage her in conversations about sex or love.”). The court was not talking about an employee’s perception of on-the-job conduct by a supervisor whose duties included observing employees.

That the present case does not involve stalking is obvious from the undisputed fact, which the Court’s opinion makes clear, that it never occurred to Mendoza and her attorney, to use the word “stalking” to describe Page’s conduct. They did not do so in the trial court, in their panel briefs, or in their en banc briefs. So far removed are these facts from a stalking case that it never occurred to anyone at the pre-trial, trial, or panel appeal levels of this case to describe Page as a stalker. The remarkable revelation that this is a stalking case has come only to the authors of the dissenting opinions at this, the en banc stage. Their insight in this regard is as belated as it is unique. What appears so obvious to them now apparently never occurred to either of them at the panel stage, because their carefully crafted panel opinion fails even to mention the word “stalk” or any derivative of it.