finding that a reasonable trier of fact could not conclude that the Defendant was negligent in remedying harassment where the facts showed promptness in instituting an investigation, conducting interviews with other employees, and meeting with the Plaintiff about his complaint
How later courts described this case
- finding that a reasonable trier of fact could not conclude that the Defendant was negligent in remedying harassment where the facts showed promptness in instituting an investigation, conducting interviews with other employees, and meeting with the Plaintiff about his complaint
- concluding that evidence that African‐American plaintiff’s co‐workers repeatedly displayed noose and threatened violence qualifies as “egregious for purposes of constructive discharge”
- finding that “a prompt investigation is the hallmark of a reasonable corrective action”
- holding that “the constructive discharge test sets a high bar in order to give an employer an opportunity to address the situation before an employee resigns”
Written by the judges who cited it.
The opinion
ROVNER, Circuit Judge,
concurring.
As my brethren aptly point out, a noose is one of the most potent symbols of racial oppression — a symbol of terror and violence. A person who realized the power of that message, upon discovering it, would condemn it to a dark hidden place where it could do no further harm. After removing the noose from the production area of the H line, however, supervisor Santos took that message of terror, threat, and violence and relocated it on the bulletin board in her windowed supervisor’s office where it was visible to all employees. The majority describes this act as “ill-advised” — an understatement for sure. At its best, Santos’ act sent the message that she had no idea of the potency of the message and, as a result, would either fail to take the harassment seriously or would bungle the investigation as she had the efforts to remove the offending communication. At worst, her re-broadcast of the noose sent a message that she sided with the harassers.
The majority credits Santos’ testimony that she placed the noose on the bulletin board so that she would not lose it and to remind herself to report the matter to her supervisors, both of which are odd excuses for a bulletin board display of a symbol of lynching black men. A drawer, a purse, a file cabinet, or a box would all keep the evidence safe, and Santos’ concerns about forgetting to report the event simply reinforces my best-case-scenario hypothesis— that Santos failed to understand the gravity of the harassment. Furthermore, four hours later, after showing the noose to her *642 supervisor and the first shift supervisor, she threw that noose that she was so fearful of losing into the garbage. By-doing so, she failed to preserve it for future investigation by human resource personnel or other higher ranking company supervisors.
We need not determine Santos’ intentions. Whether an intentional perpetuation of the harassment or simply an “ill-advised” misstep, as the majority characterizes it, the company had an obligation to correct the harm. The failure to take corrective action in such a case simply cannot be “reasonable action” as a matter of law. It appears, however, that Porter never complained to the company about this particular harassing event. He mentions it in this appeal as a means of excusing his failure to name the perpetrators of the harassment, arguing that the act made him feel uncomfortable about talking to his supervisor about the event. As the majority points out, under the framework set forth in Faragher v. City of Boca Raton, 524 U.S. 775, 806-07, 118 S.Ct. 2275, 2292 , 141 L.Ed.2d 662 (1998), Porter had a duty to avail himself of his employer’s remedial apparatus in some manner. See also Cerros v. Steel Techs., Inc., 398 F.3d 944, 952 (7th Cir.2005). Had he done so, “reasonable action” would have required the company to take prompt and decisive action to correct that harm.
The majority concludes in footnote 6 that, “when the record is evaluated as a whole, it is clear that there is no basis for” characterizing the noose in the supervisor’s office as harassing. Ante at p. 636-67, fn. 6. I disagree. Nevertheless, Porter never reported this particular act of harassment and Porter points to no evidence that any of the managers saw the noose in her office, so the company cannot be liable for its failure to take reasonable action.
Furthermore, the majority accurately notes that Santos and Goffinet removed the original noose promptly, immediately held a meeting for all shift workers informing them of the company’s harassment policy and reinforcing that the company would not tolerate harassment, interviewed the majority of the shift’s employees, held several meetings with Mr. Porter to ferret out the culprit, and offered to transfer him to another shift. 1 Their efforts indeed may have been hampered by Porter’s reticence to co-operate in the investigation and his failure to report all of the incidents that he now claims contributed to the harassment. I agree with the majority that the company’s actions, taken as a whole, were sufficient to allow a rational trier of fact to conclude that the company took reasonable steps to stop the harassment and prevent future harm, despite Santos’ serious error. See Lapka v. Chertoff, 517 F.3d 974, 984 (7th Cir.2008), Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 535-536 (7th Cir.1993). I would stop short, however, of the majority’s description of Santos’ efforts as “diligent.”
. In the usual case we would expect the employer to remedy the harassment by inconveniencing the harasser with a transfer and not the victim. See, e.g., Williams v. Waste Management of Illinois, 361 F.3d 1021, 1030 (7th Cir.2004). In this case, however, since the company never identified the harasser with any confidence, and because we do not know whether the transfer would have been better or worse for Porter, it is legitimate to accept as remedial Goffinet's offer to transfer Porter.