Petition for Writ of Certiorari — Tutman v. WBBM-TV, Inc./CBS, Inc.

() — ay vs

OO RD1 SEP 182m

No. BEEICE OE THE CLERK

In The

Supreme Court of the United States

ROBERT S. TUTMAN,

Petitioner,

WBBM-TY, Inc./CBS, Inc.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Rosert S. TUTMAN, pro se

1600 South Union

Chicago, Illinois 60616

(312) 738-2121

V\

iA)

+>

7)

QUESTION PRESENTED

“The primary objective of Title VII is . . . to avoid the

harm in the first place”. Fall v. Indiana University Board of

Trustees, 12 F. Supp. 2d 870, 881 (N.D. Ind.1998), citing

Faragher v. City of Boca Raton, 524 U.S. 75, 118 S.Ct. 2275,

2292 (1998). Yet, the lower courts in this case ignored

genuine issues of materials fact, thus, precluding Peti-

tioner from having his day in court before a jury of his

peers on his employment discrimination claims.

The question presented is whether the lower courts

failed to apply the proper standard established by this

Court (by a preponderance of the evidence in the light

most favorable to the non-movant), when they gave no

weight to the genuine issues of material fact presented by

petitioner on the issues of “reasonable” remediation and

“unreasonable” refusal to accept respondent’s accom-

modation in this employment discrimination case.

TABLE OF CONTENTS

Page

PETITION FOR A WRIT OF CERTIORARI ......... 1

OPINIONS BELOW. 0.60. 612: skaseeesanedawhwnaeees 1

STATEMENT ON JURISDICTION ...............4.. 1

STATUTORY PROVISION INVOLVED.............. 2

STATEMENT OF THE CAGE. «..ccvnesesetestersean 2

REASONS FOR GRANTING THE WRIT ........... 5

CONCLUSION ....4 + 608444508 eee 6

TABLE OF APPENDICES

Appendix A - Opinion of the United States Court

of Appeals for the Seventh Circuit dated and

decided April 20, 2000. . ...:.saccesesuseseeun App. 1

Appendix B - Judgment of the United States Court

of Appeals for the Seventh Circuit dated April 20,

Appendix C - Judgment in A Civil Case dated

April 29, 299%. . : .isissn¢0eanuee eee App. 15

Appendix D - Order of the United States District

Court for the Northern District of Illinois, Eastern

Division, dated April 29, 1999, including Report

and Recommendation of the Magistrate Judge of

the United States District Court for the Northern

District of Illinois, Eastern Division, dated March

SO, EDDD. . ... «0:0 sac Wesel App. 16

TABLE OF AUTHORITIES

Cases

Burlington Industrie

118 S.Ct. 2257 (1

Faragher v. City of

s, Inc. v. Ellerth, 524 U.S. 742,

er rrr y oer ee 6

Boca Raton, 524 U.S. 775, 118

es ISUe CHOON 60 cscvacectceactosuteneunussenteee 6

Reynolds v. CXS Transportation, Inc., 115 F.3d 850

(11th Cir. 1997), judgment vacated, 524 U.S. 947,

Be es A CHOOUD 6 ino snes odbc cteiwéncekensuceas 6

STATUTES

SE EE MEUEED Se becdedvcrccccanscccucssesscasnes 2

Sy Wy Deca cccncscectacvoccstctevnsesevess r

pi aaa

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of cer-

tiorari to review the judgment of the United States Court

of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The Magistrate’s Report and Recommendations (per

Magistrate Judge Morton Denlow) recommending the

grant of respondent’s summary judgment motion

(Appendix D, Pet. App., App. 17-43) is unpublished. The

district court’s subsequent order (per Bucklo, D.]J.),

adopting the Magistrate’s Report and Recommendation

(Appendix D, Pet. App., App. 16-43), is published at 54

F. Supp.2d 817. The court of appeal’s opinion (per Kanne,

J.J., joined by Manion and Rovner, J.J.) affirming (Appen-

dix A, Pet. App. 1-13) is published at 209 F.3d 1044.

STATEMENT ON JURISDICTION

The court of appeals entered its opinion and order on

April 20, 2000. After applying for and receiving exten-

sions of time, petitioner pro se filed a Petition for Writ of

Certiorari on September 21, 2000. That Petition was

deemed non-compliant with this Court’s rules on Cer-

tiorari Petitions, and so the Clerk of this Court returned

ten of the eleven copies of the filed petition, with instruc-

tions to correct its deficiencies by no later than November

21, 2000. Petitioner invokes this Court's jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

This is a Title VII action, brought under 42 U.S.C.

§ 2000e.

STATEMENT OF THE CASE

Petitioner is African-American and was a senior CBS

Network News sports cameraman, with 25 years of expe-

rience when he was terminated by CBS. He was also

union steward at the WBBM-TV affiliate of CBS in Chi-

cago, Illinois, past president of the Chicago chapter of the

National Association of Black Journalists and a member

of the broadcast task force for the National Association of

Black Journalists.

On May 19, 1995, merely a few weeks after the bomb-

ing of the Federal Building in Oklahoma City, petitioner

was chatting with one of WBBM-TV’s sportscasters, Tim

Weigel, in the WBBM-TV sports office in Chicago. Sud-

denly, Robert Vasilopulos, petitioner’s sports-assignment

supervisor, came into the room and said, “get the fuck

out of my office before I pop a cap in your ass.”!

Vasilopulos also referred to a movie, which he called

1 The terms, “pop a cap” or “bust a cap”, mean “to shoot”

in gang parlance.

i

——,

2m aera

Niggers with Hats.* Vasilopulos then proceeded to prance

around the office, derisively imitating a drunk African-

American, and repeating the phrase, “nigger wid a hat,

muva fucker, pop a cap in your ass, pop a cap in your

ass”. Other undisputed evidence established that

Vasilopulos had been reprimanded for racial harassment,

with letters sent to his personnel file, prior to and around

the same time as the incident involving petitioner.

Although Vasilopulos claimed that “it was simply a

joke,” petitioner perceived the words spoken and the

behavior of Vasilopulos as a death threat. So did CBS.

Other CBS representatives interviewed Vasilopulos and

advised him that they were taking the incident “very

seriously”.

On the day of the incident, petitioner left the WBBM-

TV/CBS premises immediately after reporting the inci-

dent to Vasilopulos’ supervisor. He returned the next day

only to speak with higher management about the inci-

dent. CBS then gave petitioner “medical leave.”

After a short investigation, CBS merely wrote a repri-

mand letter to Vasilopulos (the third reprimand letter

from management to Vasilopulos), required him to attend

sensitivity training (the first of which he refused to

attend, because the first trainer was African-American,

and the second of which he managed to leave early) and

demanded that he make a written apology to petitioner

(which apology was just a self-serving account of what

happened on May 19, 1995, addressed “to whom it may

concern”).

2 The actual title of the movie is Fear of a Black Hat.

Even the Magistrate Judge interpreted this evidence

as sufficiently material to survive summary judgment on

petitioner’s hostile-environment claim and enough to

send the case to a jury. Petitioner had made a prima facie

case of hostile work environment. Notwithstanding those

findings, however, the Magistrate Judge recommended

dismissal of petitioner’s entire case on summary judg-

ment; the District Court Judge adopted the Magistrate’s

recommendation for dismissal; and the Circuit Court of

Appeals panel affirmed the summary dismissal of peti-

tioner’s employment discrimination case.

Despite numerous factual disputes about Vasilopulos’

prior, multiple and continuing acts of racism and repri-

mands by CBS with obvious ineffectiveness, his recal-

citrance about sensitivity training, his refusal to comply

with CBS’ demands for an apology to petitioner and the

obvious ineffectiveness of CBS’ other remedial actions

against him, all three courts found that CBS acted

promptly to investigate and reprimand Vasilopulos, thus,

“correcting” the environment that petitioner would have

had to endure when and if he returned to work. In effect,

the lower courts held that the speed of CBS’ response and

reprimand trumped petitioner’s establishment of a jury

issue on his hostile-environment and constructive-dis-

charge claims, both arising out of petitioner’s fear of being

killed by Vasilopulos.

Six months later, CBS advised petitioner that his

medical leave was about to terminate, pursuant to com-

pany rules, and that he could come back to work on a

different shift than Vasilopulos’. Knowing that being

assigned to a different shift would jeopardize both his

ability to cover important sports events and his tenure as

eee

re tn nn ee

RR RR! OR eT ore

t

union steward, petitioner declined to return to work. He

was then fired, complied with applicable administrative

procedures and filed his claim against WBBM-TV/CBS

for employment discrimination.

°

REASONS FOR GRANTING THE WRIT

A company’s “quick” investigation of a race-based

death threat by a co-worker should not be enough to

justify summary disposition in the company’s favor in a

racial discrimination case in which the plaintiff has estab-

lished a prima facie case of hostile work environment.

Petitioner’s harassing co-worker’s past and post-event

conduct showed that a mere reprimand would not stop

his racist behaviors. CBS’ shift-switching “accommoda-

tion” to the petitioner was not sufficient to protect his job

and union status and was, thus, adverse. Nor was the

shift-switching proposal sufficient to protect him from

continued racial harassment and hostile work environ-

ment created by Vasilopulos in the form of death threats.

Nonetheless, Vasilopulos remains in his job, while peti-

tioner was fired; and three courts have precluded peti-

tioner from his day in court. The purposes of Title VII

should not be so easily thwarted.

This “trumping” law, which pervades the Seventh

Circuit’s recent employment discrimination opinions,

should be overruled as inconsistent with 42 U.S.C.

§ 2000e. This Court held, in two recent sexual harassment

cases, that employers have to establish by a prepon-

derance of the evidence that any remedial employment

actions were “reasonable” and that the employee “unrea-

sonably” failed to take advantage of the preveniative or

correctional opportunities offered by the employer. Bur-

lington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct.

2257, 2270-71 (1998); Faragher v. City of Boca Raton, 524

U.S. 775, 118 S.Ct. 2275, 2292-94 (1998). Although most

district courts apparently feel comfortable disposing of

the fact-laden issue of the effectiveness of employers’

remedial efforts, other Circuits have found the issue of

the efficacy of an employer’s remedial actions to racial

harassment to rise to the level of fact issue to be decided

by a jury. See, e.g., Reynolds v. CXS Transportation, Inc., 115

F.3d 850 (11th Cir. 1997), cert. granted, vacated in accord

with Burlington Industries, Inc. (op. cit.) and Faragher (op.

cit.), 524 U.S. 947, 118 S.Ct. 2364 (1998).

¢ =

CONCLUSION

For all the reasons stated above, this Court should

grant the writ of certiorari and vacate the judgment of the

Court of the Appeals for the Seventh Circuit in light of

Burlington Industries, Inc. and Faragher.

Respectfully submitted,

Rosert S. TUTMAN, pro se

1600 South Union

Chicago, IL 60616

(312) 738-2121

a aR estat heal

App. 1

APPENDIX A

Robert TUTMAN, Plaintiff-Appellant,

v.

WBBM-TYV, Inc./CBS, Inc.,

Defendant-Appellee.

No. 99-2366.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 30, 1999.

Decided April 20, 2000.

Yvonne Owens (argued), Owens & Associates, Robert

Tutman, Chicago, IL, for Plaintiff-Appellant.

Debbie L. Berman (argued), Jenner & Block, Chicago,

IL, for Defendant-Appellee.

Before MANION, KANNE and ROVNER, Circuit

Judges.

KANNE, Circuit Judge.

CBS producer Robert Vasilopulos testified that “it

was simply a joke” when he told Robert Tutman, an

African-American CBS cameraman, about a comedic

movie called Niggers with Hats and parroted a phrase

from the movie by telling Tutman to “[g]et the fuck out of

the office before I pop a cap in your ass.” Tutman, how-

ever, viewed the comment as a serious death threat and

lodged a formal harassment complaint with their

employer WBBM-TV, Inc./CBS, Inc. (“CBS”). When CBS

responded by punishing Vasilopulos and promising to

separate Vasilopulos from Tutman at work, Tutman

App. 2

remained dissatisfied and eventually sued CBS under

Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to

2000e-17. The district court granted summary judgment

for CBS on the hostile work environment and construc-

tive discharge claims, and Tutman appealed. We affirm

summary judgment because CBS took prompt and appro-

priate remedial action to prevent further harassment and

Tutman cannot establish constructive discharge based on

the incident with Vasilopulos.

I. History

During the afternoon of Friday May 19, 1995, Tutman

was conversing with sportscaster Tim Weigel in the

WBBM.-TV sports office when CBS co-worker Vasilopulos

strolled into the office and said twice to Tutman, “Get the

fuck out of the office before I pop a cap in your ass.”

According to Tutman, Vasilopulos began prancing

around, derisively caricaturing African-Americans. Sur-

prised by Vasilopulos’s outburst, Tutman responded that

the correct phrase was “bust a cap,” not “pop a cap.”!

Vasilopulos asked whether Tutman had seen a movie

-entitled Niggers with Hats. Tutman answered that movies

like Niggers with Hats were profitable and that

Vasilopulos should make a similar movie with Tutman’s

help. After two minutes, both men departed the sports

office.

1 The parties agree that “bust a wap” and “pop a cap” means

“to shoot” in gang parlance, but CBS maintains that Vasilopulos

did nt intend his remark as a death threat. Vasilopulos and

Tutman appear to have been referring to the film Fear of a Black

Hat mistakenly as Nigges with Hats.

Pe APD CONEY e

a

st Lao

ROR WO

aad i et ee te ae

App. 3

However, Tutman later would testify that he inter-

preted Vasilopulos’s outburst as a racially-motivated

death threat and was quite shaken by Vasilopulos’s histri-

onics. After leaving the sports office, he visited his super-

visor Andrea Jenkins and told her about Vasilopulos’s

bizarre behavior. Jenkins assured him that he had done

well to notify her and that she would investigate his

complaint. Tutman also called D.E. Simmons, an outside

consultant retained by CBS to advise on workplace con-

cerns, and told him about Vasilopulos. Simmons then

contacted Jenkins who asked Simmons to meet with her

at the office forthwith. The pair discussed the situation,

then immediately reported Tutman’s complaint to News

Director John Lansing. Lansing investigated further by

speaking to Weigel and Vasilopulos that night about the

incident.

On Monday May 22, 1995, Tutman telephoned CBS

that he would not come to the station for work because of

the incident with Vasilopulos the previous Friday. CBS

gave Tutman his work assignment over the telephone, but

Tutman did venture to the station that afternoon to meet

with General Manager Robert McGann about his com-

plaint. Jenkins and Lansing then briefed McGann about

the results of their investigation thus far.

On Tuesday, McGann, Jenkins, Lansing, Simmons

and Vasilopulos met to discuss Vasilopulos’s version of

events. Afterward, McGann informed the CBS human

resources department about Vasilopulos’s conduct and

Tutman’s complaint. On Friday, one week after the inci-

dent between Vasilopulos and Tutman, CBS’s Director of

Policy and Administration Sandra Spangenberg arrived

App. 4

from CBS head quarters in New York to investigate first-

hand. After interviewing Tutman, Vasilopulos and other

witnesses, Spangenberg told Tutman that his allegation

was serious and Vasilopulos’s obnoxious behavior would

not be tolerated at CBS. Spangenberg told both

Vasilopulos and Tutman that Vasilopulos would be pun-

ished.

Based on Spangenberg’s recommendations, CBS

found that Vasilopulos posed no physical threat to Tut-

man but had been grossly inappropriate. CBS imposed a

tripartite punishment on Vasilopulos: (1) a written warn-

ing placed in his personnel record making clear that

future misconduct would lead to more serious discipline;

(2) mandatory participation in a three-day interpersonal

skills workshop aimed at promoting better workplace

relationships; (3) Vasilopulos was required to apologize

to Tutman. In addition, CBS re-circulated its anti-discrim-

ination and fair employment policies to all employees.

CBS previously had disciplined Vasilopulos with letters

of reprimand for yelling “get the fuck out of my office” at

producer Howard Dorsey and for using profanity in the

presence of editor Debra Segal. However, at the time,

Vasilopulos’s personnel file contained no previous

harassment complaints or disciplinary actions against

him. Later, union official Jessica Logan would testify that

Vasilopulos had disparaged CBS camera technician

Morris Jones “as a nigger” in June 1995, a month after

CBS’s investigation of Vasilopulos’s harassment of Tut-

man, but Jones did not bring a formal charge against

Vasilopulos.

Predictably, Vasilopulos was unenthusiastic about his

punishment. Vasilopulos balked at apologizing to Tutman

ooo

App. 5

but understood that CBS was taking Tutman’s complaint

“very seriously” and would terminate him if he did not

comply. With continued insistence by CBS, Vasilopulos

wrote a June 2, 1995, letter addressed to “whom it may

concern,” explaining noncommitally that he regretted

“that comments exchanged in a joking manner with

Robert Tutman, on May 19, 1995, were misinterpreted.”

Vasilopulos also complained about attending the inter-

personal skills workshop taught by Simmons, and CBS

allowed Vasilopulos instead to attend an alternative

three-day sensitivity seminar from August 23 to August

25, 1995. Vasilopulos managed to leave the final day of

the program a few hours early.

Despite CBS’s response, Tutman refused to work

because he felt “unsafe.” CBS told Tutman that his assign-

ments could be given by telephone and that he and

Vasilopulos could be given staggered shifts to ensure that

he would not encounter Vasilopulos at work. Nonethe-

less, CBS maintained that Tutman had to report for work,

and when Tutman remained intransigent, CBS placed

Tutman on a paid medical leave of absence. By his admis-

sion, Tutman was happy to collect salary without work-

ing and did not object. However, CBS’s employment

policy limited medical leave to six months, and this edict

had been strictly enforced without exception during the

previous ten years. As the expiration of Tutman’s leave

drew imminent, Tutman insisted on additional paid leave

so that he could “get back in shape” but failed to provide

a note from his doctor verifying that extended leave was

medically necessary. Indeed, Tutman admits that he had

not sustained a serious illness, and his doctors said that

there was no reason Tutman could not return to work. As

SS

App. 6

a result, CBS considered Tutman “voluntarily resigned”

when his six-month medical leave lapsed on November

22, 1995.

Tutman filed a charge of discrimination with the

Illinois Department of Human Rights and the Equal

Employment Opportunity Commission that day. On July

19, 1996, Tutman filed suit against CBS in district court

alleging retaliation, racially hostile work environment

and constructive discharge under Title VII of the Civil

Rights Act. The district court referred the case to Magis-

trate Judge Morton Denlow who recommended that the

district court grant summary judgment for CBS on all

Tutman’s claims. On April 29, 1999, the district court

adopted the magistrate’s recommendations and granted

summary judgment for CBS on all Tutman’s claims. Tut-

man appeals summary judgment on his hostile work

environment and constructive discharge claims.

II. ANALYsIS

We review de novo the district court’s grant of sum-

mary judgment, drawing our own conclusions of law and

fact from the record before us. See Haefling v. United Parcel

Serv., 169 F.3d 494, 497 (7th Cir.1999). Summary judgment

is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986). In determining whether a

genuine issue of material fact exists, we construe all facts

App. 7

in the light most favorable to the non-moving party and

draw all reasonable and justifiable inferences in favor of

that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Hostile Work Environment

Tutman’s central claim before the district court was

that he suffered a racially hostile work environment,

based on the Vasilopulos incident, in violation of Title VII

of the Civil Rights Act. For workplace conduct to consti-

tute a hostile work environment actionable under Title

VIL, the harassment “must be sufficiently severe or perva-

sive ‘to alter the conditions of [the plaintiff’s] employ-

ment and create an abusive environment.’ ” Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91

L.Ed.2d 49 (1986) (citation omitted). However, an

employer is not strictly liable under Title VII for sexual

harassment perpetrated by its employees. See Juarez v.

Ameritech Mobile Communications, Inc., 957 F.2d 317, 320

(7th Cir.1992). In hostile work environment cases, the

employer can avoid liability for its employees’ harass-

ment if it takes prompt and appropriate corrective action

reasonably likely to prevent the harassment from recur-

ring. See Saxton v. American Tel. & Telegraph Co., 10 F.3d

526, 535 (7th Cir.1993). The district court found that Tut-

man had established a genuine issue of material fact

whether the Vasilopulos incident created a hostile work

environment, but granted summary judgment for CBS

because it found that CBS had taken prompt, effective

remedial action in response to the incident. We do not

decide whether a hostile work environment existed

App. 8

because the question whether CBS took prompt and effec-

tive remedial action is dispositive here.

CBS responded promptly to Tutman’s harassment

complaint. CBS began investigating Tutman’s allegation

on the day of the incident, and CBS’s general manager

interviewed both Tutman and Vasilopulos on the next

work day. Within two weeks, CBS had completed its

investigation and sanctioned Vasilopulos by issuing him

a letter of reprimand, sending him to sensitivity training

and commanding him to apologize to Tutman. When

Tutman would not return to work, CBS offered to arrange

his and Vasilopulos’s work schedules so that they would

have no contact with each other at work.

Tutman argues that CBS’s response was insufficiently

punitive given the severity of Vasilopulos’s conduct on

May 19, 1995. However, the question is not whether the

punishment was proportionate to Vasilopulos’s offense

but whether CBS responded with appropriate remedial

action reasonably likely under the circumstances to pre-

vent the conduct from recurring. See Saxton, 10 F.3d at

535. By punishing Vasilopulos and promising to segregate

Vasilopulos from Tutman at work, CBS made it distinctly

improbable that Vasilopulos would further harass Tutman

because the two men would have such limited contact, if

any, with each other at work. In Saxton, the employer

effectively responded to the plaintiff’s report of sexual

harassment by transferring the harasser to a different

department because the transfer “served to terminate all

contact between [the harasser] and [the plaintiff] and

bring a definitive end to any harassment.” Saxton, 10 F.3d

at 536. Similarly, in Savino v. C.P. Hall Co., 199 F.3d 925,

933 (7th Cir.1999), the employer’s relocation of the

App. 9

harasser to a different floor than the plaintiff, in response

to her harassment complaint, constituted effective reme-

dial action likely to prevent recurrence ot harassment.

Likewise here, separating Vasilopulos and Tutman made

it quite unlikely that Vasilopulos would harass Tutman

again.

Of course, if separating Vasilopulos and Tutman at

work would have disadvantaged Tutman, CBS’s response

would have been inadequate because remedial action that

makes the victim worse off is ineffective per se. See Guess

v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990).

However, Tutman has not established that he would have

been injured by CBS’s proposed response. CBS has sev-

eral sports producers other than Vasilopulos, so Tutman

would not have been precluded from working sports

assignments. Tutman also introduced no evidence that

rearranging his work schedule would have forced him to

relinquish his union stewardship.

In addition to dissociating Vasilopulos from Tutman,

CBS warned Vasilopulos sternly that CBS would not tol-

erate further harassment of co-workers. CBS reprimanded

Vasilopulos, sent him to sensitivity training and ordered

him to apologize to Tutman. Vasilopulos boorishly

refused to attend the assigned sensitivity training semi-

nar before acquiescing to a different program, from which

he arranged to exit early. Vasilopulos also resisted apolo-

gizing to Tutman and ultimately penned an unconvinc-

ing, three-sentence missive only after continued

insistence by CBS management. We sympathize with Tut-

man’s frustration over Vasilopulos’s recalcitrance, but

Title VII does not require that CBS punish Vasilopulos

commensurately to his conduct. The key here is that CBS

App. 10

responded promptly with remedial action reasonably cal-

culated to end Vasilopulos’s harassment of Tutman by

making clear to Vasilopulos that further harassment

would result in termination and credibly promising Tut-

man that he would have no contact with Vasilopulos at

work.

Alternatively, Tutman offers the novel claim that CBS

is liable under Title VII for its failure to prevent

Vasilopulos from racially harassing him despite prior

indications that made harassment foreseeable. Namely,

Tutman points to other instances of verbal abuse by

Vasilopulos — incidents of yelling at CBS employees How-

ard Dorsey, Debra Segal and Morris Jones. Without decid-

ing the viability of a Title VII claim for failure to prevent

foreseeable workplace harassment, we find that CBS

could not be reasonably expected to have prevented

racial harassment here. Tutman alleges only a single

racial harassment incident — Vasilopulos allegedly called

Jones a “nigger” - of which CBS might have been aware,

and that incident occurred in June 1995, after

Vasilopulos’s harassment of Tutman and Tutman’s depar-

ture from CBS. Under these facts, CBS was not fore-

warned before May 19, 1995, that it should have done

more to prevent Vasilopulos from engaging in racial

harassment.

B. Constructive Discharge

To establish a claim for constructive discharge under

Title VIL, a plaintiff must prove that his working condi-

tions were so intolerable as a result of unlawful discrimi-

nation that a reasonable person would be forced into

a

App. 11

Eee

involuntary resignation. See Vitug v. Multistate Tax

Comm'n, 88 F.3d 506, 517 (7th Cir.1996). Working condi-

tions for constructive discharge must be even more

egregious than the high standard for hostile work envi-

ronment because “in the ‘ordinary’ case, an employee is

expected to remain employed while seeking redress.” See

Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886

(7th Cir.1998).

Tutman refused to return to work after Vasilopulos

harassed him, but a reasonable employee would not have

found work conditions at CBS to be so intolerable that he

would have to quit his job. In fact, Tutman did not claim

at the time that he could not return to work after his

medical leave expired. Instead, despite the absence of

medical corroboration, Tutman requested extended leave

to get back into shape. Aside from Tutman’s bare asser-

tions, there is little to suggest that Tutman’s working

conditions would have been so objectively intolerable

based on the lone incident with Vasilopulos. In cases

finding constructive discharge, the plaintiffs suffered

from much more severe and sustained harassment. See,

e.g., Snider v. Consolidation Coal Co., 973 F.2d 555, 558 (7th

Cir.1992); Taylor v. Western & S. Life Ins. Co., 966 F.2d 1188,

1191 (7th Cir.1992); Sanchez v. Denver Pub. Sch., 164 F.3d

527, 534 (10th Cir.1998). In Taylor, we found constructive

discharge when the plaintiffs’ boss constantly peppered

the plaintiffs with racist comments, brandished a pistol

and held it to one plaintiff's head. Taylor, 966 F.2d at 1191.

In Brooms v. Regal Tube Co., 881 F.2d 412, 417, 423 (7th

Cir.1989), the plaintiff established constructive discharge

where “repeated instances of grossly offensive conduct

and commentary” culminated with an incident during

aca lala

App. 12

which a co-worker showed the plaintiff a racist pornog-

raphic photograph, told her that she was hired to perform

the task depicted in the photograph, grabbed the plaintiff

and threatened to kill her. A credible death threat that

signals grave danger to the plaintiff's bodily integrity, as

in Taylor and Brooms, can constitute grounds for finding

constructive discharge, but the harassment suffered by

Tutman at Vasilopulos’s hands falls well short of this

standard.

A reasonable person would not have feared

Vasilopulos as a result of his single oblique threat, even

construing all reasonable inferences in favor of Tutman,

such that he would feel forced to resign. See, e.g., Drake,

134 F.3d at 887; Rabinovitz v. Pena, 89 F.3d 482, 489 (7th

Cir.1996); Saxton, 10 F.3d at 537. In Simpson v. Borg-Warner

Automotive, Inc., 196 F.3d 873, 877-78 (7th Cir.1999), a co-

worker’s comment that “someone should take a dish and

knock [the plaintiff] upside the head” did not establish

constructive discharge. Likewise, in Lindale v. Tokheim

Corp., 145 F.3d 953, 956 (7th Cir.1998), “boorish behavior”

by co-workers was insufficient for constructive discharge.

Vasiiopulos’s harassment of Tutman was closer to the

abuse suffered in these cases than to the vicious harass-

ment in Brooms or Taylor. Even assuming that

Vasilopulos’s harassment was so offensive and severe to

create a hostile work environment, his conduct was not so

egregious as to compel Tutman’s resignation and estab-

lish constructive discharge.

App. 13

III. ConcLusIon

summary judgment.

For the foregoing reasons, we AFFIRM the grant of

|

App. 14

APPENDIX B

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT - WITH ORAL ARGUMENT

Date: April 20, 2000

BEFORE: Honorable DANIEL A. MANION,

Circuit Judge

Honorable MICHAEL S. KANNE,

Circuit Judge

Honorable ILANA DIAMOND ROVNER,

Circuit Judge

No. 99-2366

ROBERT TUTMAN,

Plaintiff-Appellant

v.

WBBM-TV, INCORPORATED/CBS, INCORPORATED,

Defendant-Appellee

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 96 C 4424, Elaine E. Bucklo, Judge

The judgment of the District Court is AFFIRMED,

with costs, in accordance with the decision of this court

entered on this date.

(1061-110393)

App. 15

APPENDIX C

United States District Court

Northern District of Illinois

Eastern Division

Robert Tutman JUDGMENT IN A CIVIL CASE

v. Case Number: 96 C 4424

WBBM-TV/CEBS, Inc.

OF Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

rendered its verdict.

@ Decision by Court. This action came to hearing before

the Court. The issues have been heard and a decision

has been rendered.

IT Is HEREBY ORDERED AND ADJUDGED that defen-

dant’s motion for summary judgment on all claims is

granted and judgment is entered in favor of defendant,

WBBM-TV/CBS, Inc. and against plaintiff, Robert Tut-

man.

Michael W. Dobbins,

Clerk of Court

/s/ Mathew P. John

Mathew P. John, Deputy Clerk

Date: 4/29/1999

App. 16

APPENDIX D

Robert TUTMAN, Plaintiff,

v.

WBBM-TV/CBS INC., Defendant.

No. 96 C 4424.

United States District Court,

N.D. Illinois,

Eastern Division.

April 29, 1999.

Yvonne Owens, Owens and Associates, Chicago, IL,

for plaintiff.

Linda L. Listrom, Debbie L. Berman, Jenner & Block,

Chicago, Illinois, for defendant.

ORDER

BUCKLO, District Judge.

The court has conducted a de novo review of both

the factual findings and legal analysis of Magistrate

Judge Denlow’s Report and Recommendation. The court

agrees with Judge Denlow’s well reasoned and thorough

analysis and therefore adopts the Report dated March 30,

1999 in its entirety. Accordingly, defendant’s motion for

summary judgment on all claims [69-1] is granted and

judgment is entered in favor of defendant, CBS and

against plaintiff. Any pending motion in this case is ter-

minated as moot. Status hearing set for 4/30/99 is

vacated.

App. 17

REPORT AND RECOMMENDATION

MORTON DENLOW, United States Magistrate Judge.

Robert Tutman (“Plaintiff” or “Tutman”) instituted

this action against WBBM-TV/CBS Inc. (“Defendant” or

“CBS”) and an employee of Defendant, Robert

Vasilopulos (“Vasilopulos”). Counts I and II involved

state law tort claims directed at Vasilopulos which were

previously dismissed. Count III is directed solely at

Defendant and charges it with violation of Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e. Count III includes

three claims: a retaliation claim, a hostile work environ-

ment claim, and a constructive discharge claim. Defen-

dant now brings a motion for summary judgment on

Count III arguing that there is no genuine issue of mate-

rial fact and it is entitled to judgment as a matter of law.

For the following reasons the Court recommends that

Defendant’s motion for summary judgment be granted

because the facts viewed in the light most favorable to the

Plaintiff demonstrate that the Defendant did not violate

Title VII. _

I. Factual Background

The following facts are undisputed unless indicated

otherwise. Plaintiff Robert Tutman (“Plaintiff”) was an

employee of CBS through November 22, 1995. (Def.’s

Local Rule 12(M) Statement of Undisputed Facts (“Def.’s

12(M)”) { 5.) He was assigned to WBBM-TV as a camera-

man. Id. Tutman’s direct supervisor was Kevin Yokley

who reported to Andrea Jenkins. (Def.’s 12(M) {{ 6-7.)

Tutman also reported to Jenkins. (Def.’s 12(M) { 8.)

App. 18

Vasilopulos was employed by CBS as a sports producer at

WBBM-TV. (Def.’s 12(M) { 9.)

A. The Incident.

On Friday, May 19, 1995, Tutman was in the WBBM-

TV sports office talking to sportscaster, Tim Weigel.

(Def.’s 12(M) { 13.) While Tutman was in the office,

Vasilopulos walked in and said to Tutman, “Get the fuck

out of the office before I pop a cap in you’re ass.” (Def.’s

12(M) { 16.) Tutman responded to Vasilopulos that the

phrase was “bust a cap” not “pop a cap.” (Def.’s 12(M)

{ 17.) Vasilopulos then asked Tutman if he had ever seen

a movie called “Niggers With Hats.” (Def.’s 12(M) { 18.)

Tutman stated that those types of movies make a lot of

money and Tutman would help Vasilopulos make such a

movie. (Def.’s 12(M) {¥ 19-20.) Tutman perceived

Vasilopulos’s statements and actions to be a serious threat

to Tutman’s life made on account of Tutman’s race. (Pl.’s

Modified Local Rule 12(N) Response to Defendant's Local

Rule 12(M) Statement of Material Facts (“Pl.’s 12(N)

Response”) { 21.) A number of WBBM-TV employees

witnessed the exchange. (Def.’s 12(M) { 23.)

B. The Investigation

Following the exchange, both Tutman and

Vasilopulos left the sports office. (Def.’s 12(M) { 24.)

Tutman went directly to Jenkins and informed her of the

incident. (Def.’s 12(M) ¥{f 7-9, 25.) Tutman left the station

shortly thereafter to go home. (Def.’s 12(M) { 28.) On his

way home, Tutman called D.E. Simmons, a consultant

hired by CBS to address employees’ workplace concerns,

App. 19

to inform Simmons of the incident as well. (Def.’s 12(M)

{1 29-31.) After talking to Tutman, Simmons phoned

Jenkins and the two arranged to meet that night to dis-

cuss the incident. (Def.’s 12(M) {¥ 35-36.) After their

discussion, the two informed John Lansing, the news

director, of Tutman’s concerns. (Def.’s 12(M) {{ 27, 38.)

Lansing questioned both Weigel and Vasilopulos about

the incident. (Def.’s 12(M) {] 39-40.)

The following Monday, Tutman called CBS to express

that he was not comfortable coming to the station because

the incident with Vasilopulos had not been resolved.

(Def.’s 12(M) {I 42.) CBS accommodated Tutman by giv-

ing him his assignments over the phone. (Def.’s 12(M)

G1 43.) At the end of his shift Tutman requested and

attended a meeting with Robert McGann, the general

manager, to inform McGann of the incident. (Def.’s 12(M)

{1 44-46.) Following that meeting, McGann met with

Jenkins and Lansing. (Def.’s 12(M) { 48.) McGann initi-

ated his own investigation into the incident which began

with a meeting with Vasilopulos. (Def.’s 12(M) {{ 51-52.)

McGann’s goal for this meeting was to communicate to

Vasilopulos that CBS was taking Tutman’s allegations

seriously and to give Vasilopulos a chance to explain his

view of what had occurred. (Def.’s 12(M) ¥ 53.) McGann

also informed CBS’s human resources department of the

incident and it was determined that that department

would continue the investigation. (Def.’s 12(M) 1 56-57.)

In addition, CBS’s Director of Policy and Administration,

Sandra Spangenberg, traveled from New York to conduct

an investigation. (Def.’s 12(M) { 58.) After interviewing

Tutman, Vasilopulos, and other witnesses, Spangenberg

App. 20

recommended giving Vasilopulos a written warning.

(Def.’s 12(M) {I 59, 61.)

C. CBS’s Disciplining of Vasilopulos

At the conclusion of these investigations, CBS deter-

mined that Vasilopulos did not pose a physical threat to

Tutman but, because his conduct had been inappropriate,

CBS believed that Vasilopulos should be disciplined.

(Def.’s 12(M) {{ 66-67.) One possible course of action

that CBS explored was terminating Vasilopulos. (Def.’s

12(M) If 68, 73.) The parties dispute whether CBS policy

mandated terminating Vasilopulos. (See Def.’s 12(M)

{1 68-73; Pl.’s 12(N) Response {{ 68-73.) CBS policy

relating to the incident is as follows.

CBS will not tolerate any form of harassment on

account of race, color, national origin, religion, sex, age,

sexual orientation. . . . The Company will investigate any

issue as it arises and will take appropriate action. Any

employee who engages in such harassment will be sub-

ject to discipline, up to and including termination.

(Pl.’s Ex. 5, CBS Policy, General, Fair Employment

Practices.)

The following categories are examples of con-

duct which may be grounds for immediate dis-

charge. . . . Each situation is to be judged on a

case-by-case basis. .. .

Misconduct

Conduct which is adverse to the safety and wel-

fare of CBS or its employees, including, but not

limited to, any act of violence to property or

person. . . . or any behavior, which in the sole

App. 21

discretion of CBS, endangers CBS’ employees,

premises, or property or presents a threat of

such danger... .

(Pl.’s Ex. 5, CBS Policy, Discipline and Termination, Mis-

conduct.) After its investigation, CBS concluded that

Vasilopulos’s conduct did not fall within the Misconduct

category and that terminating Vasilopulos was not war-

ranted because Vasilopulos had not intended for his com-

ments to be threatening. (Def.’s 12(M) 1 68, 73.)

CBS decided on a three-part resporse to

Vasilopulos’s conduct. (Def.’s 12(M) { 74.) First, CBS gave

Vasilopulos a written warning and placed a copy in

Vasilopulos’s personnel file. (Def.’s 12(M) {{ 75, 77.) The

warning emphasized that Vasilopulos’s conduct was

inappropriate even though Vasilopulos did not intend for

Tutman to feel threatened. The letter also stated that any

further incidents of this type would result in serious

consequences, including possible termination. (Def.’s

12(M) { 76.) Second, CBS sent Vasilopulos to a three-day

Interpersonal Skills Workshop which focused on promot-

ing better relationships in the workplace. (Def.’s 12(M)

{1 78-79.) Finally, CBS required Vasilopulos to apologize

to Tutman. (Def.’s 12(M) {{ 80.) While Vasilopulos pre-

pared a letter which was sent to Tutman, (Def.’s 12(M)

11 84-86), the parties dispute whether the letter consti-

tutes an apology, (Pl.’s 12(N) Response { 84). CBS also

recirculated its anti-discrimination and fair employment

policies to all WBBM-TV employees. (Def.’s 12(M) { 87.)

v “auleh ete oe.

path te tee eee

App. 22

D. Tutman Placed on Medical Leave

Tutman worked on May 22, 1995 but refused to

return to work after that on the grounds that he still felt

unsafe at work. (Def.’s 12(M) { 88.) Consequently, CBS

placed Tutman on paid medical leave of absence. (Def.’s

12(M) { 89.) Tutman did not request that CBS do so. (PIl.’s

Modified Local Rule 12(N) Statement of Additional Facts

(“Pl.’s 12(N) Statement”) { 20.) While the parties dispute

what should have occurred after Tutman spent six

months on medical leave of absence, the content of the

corporate medical leave policy is not disputed. (See Def.’s

12(M) IT 89-94; Pl.’s 12(N) Response {{ 89-94.) The

content of the policy is as follows. An employee may not

remain on a medical leave of absence for more than six

months. (Def.’s 12(M) { 90.) At the end of six months, the

employee must either return to work if medically able to

or apply for long term disability benefits if medically

qualified to do so. (Def.’s 12(M) { 91.) An employee who

does neither will, at the expiration of six months, be

deemed to have voluntarily resigned. (Def.’s 12(M) { 92.)

While Tutman was on leave, members of CBS’s man-

agement telephoned him in an effort to get him to return

to work. (Def.’s 12(M) { 95.) They responded to his fear

of Vasilopulos by offering him, if he returned to work, the

option of selecting different shifts and receiving his

assignments by telephone in order to insure that Tutman

would not have contact with Vasilopulos. (Def.’s 12(M)

{ 96.) Tutman did not return to work at the time that CBS

contacted Tutman with these suggestions. He also did not

return to work later when CBS contacted him to inform

him that he would need to return to work when the six-

month medical leave expired. (Def.’s 12(M) {{ 97-98.)

ae

App. 23

E. Tutman Terminated

Tutman requested an extension of the leave stating

that he needed to exercise in order to be in sufficient

physical shape to return to work. (Pl.’s Response 12(N)

{ 100.) CBS informed Tutman that it had denied his

request for an extension of his medical leave and that if

he failed to return to work on November 22, 1995, the day

his six-month leave expired, he would.be deemed to have

voluntarily resigned. (Def.’s 12(M) { 103.) CBS refused to

extend Tutman’s medical leave providing as its stated

reason CBS’s preexisting strict policy to not extend medi-

cal leave beyond the six-month allowed time period.

(Def.’s 12(M) ¥ 104.) Tutman was deemed to have volun-

tarily resigned on November 22, 1995 when he failed to

return to work and failed to apply for long term disabil-

ity. (Def.’s 12(M) {I 108-09.) Thereafter Tutman filed his

complaint with the EEOC and instituted this litigation.

(Def.’s 12(M) { 111.)

II. Standard of Review

Summary judgment “shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any mate-

rial fact and that the moving party is entitled to a judg-

ment as a matter of law.” Fed.R.Civ.P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986).

When zeviewing the record on summary judgment,

the court must draw all reasonable inferences in the light

most favorable to the nonmoving party. See Larimer v.

App. 24

Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir.1998). To

avert summary judgment, however, the nonmovant

“must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A dispute

about a material fact is genuine only if the evidence

presented is such that a reasonable jury could return a

verdict for the nonmovant. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).

III. The Motion for Summary Judgment

A. The Retaliation Claim

The Court recommends granting Defendant's motion

for summary judgment on the retaliation claim because

the evidence does not show that Tutman’s request for

extended leave was denied in retaliation for his com-

plaint about Vasilopulos. To establish a prima facie case

of retaliation, a plaintiff must meet three elements: (1) the

plaintiff engaged in protected expression; (2) the plaintiff

suffered an adverse action; and (3) there was a causal link

between the protected expression and the adverse action.

Drake v. Minnesota Mining and Manufacturing Co., 134 F.3d

878, 885 (7th Cir.1998) (citing McClendon v. Indiana Sugars,

Inc., 108 F.3d 789, 796 (7th Cir.1997)). If the plaintiff

establishes a prima facie case, the burden of production

shifts to the defendant to articulate a legitimate, non-

retaliatory reason for the alleged adverse action.

McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 483 (7th

Cir.1996). If this is achieved, the burden then shifts back

to the plaintiff to show that the defendant's stated reason

App. 25

for the action is pretextual. Id. There is no dispute that

Plaintiff has met the first two elements. The retaliation

claim turns on the issue of whether there is a fact ques-

tion regarding the causal link.

1. The Causal Link

CBS is entitled to summary judgment on Tutman’s

retaliation claim because Tutman has offered insufficient

evidence to make out a prima facie retaliation claim.

Tutman has failed to establish a causal link between the

protected expression and the adverse action. In order to

establish the requisite causal link, a plaintiff must prove

that the defendant would not have taken the adverse

action but for the plaintiff's protected expression.

McKenzie, 92 F.3d at 483. This Tutman has failed to do.

Tutman has introduced no evidence to show that the

adverse action CBS took was caused by Tutman’s earlier

complaints about Vasilopulos. Rather the evidence is

clear that Plaintiff was terminated because he failed to

return to work following the end of his six month medical

leave.

Plaintiff's allegations regarding a causal link between

Plaintiff's complaint about Vasilopulos and Plaintiff's

deemed resignation are limited to the following para-

graph:

Mr. Tutman notified CBS of his intention to file a

Charge of Discrimination by correspondence

dated October 20, 1995. CBS met with Mr. Tut-

man and his attorneys on November 13, 1995.

During this meeting, Mr. Tutman’s attorneys

requested: an extension of the medical leave of

absence to Mr. Mark Engstrom. Four days after

App. 26

the meeting, Mr. Mark Engstrom denied Mr.

Tutman’s request for extension of medical leave

of absence.

(Pl.’s 12(N) Response { 104 (citations omitted).) The

most that Tutman shows is that CBS knew of his com-

plaints at the time that it took the adverse action. How-

ever, knowledge is insufficient to establish a causal link.

See Gibson v. Old Town Trolley Tours, 160 F.3d 177, 182 (4th

Cir.1998) (holding that judgment as a matter of law was

proper when the plaintiff “did not present any evidence

that [the defendant] was motivated by the EEOC com-

plaint. Knowledge is necessary to establish causation, but

it is not sufficient.”). In addition, the mere occurrence of

the adverse action after the protected expression is insuf-

ficient to support a presumption of causation. Bermudez v.

TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir.1998)

(“Post hoc ergo propter hoc [After this hence on account

of this] is not enough to support a finding of retalia-

tion.”). As a result, in that Plaintiff has come forward

with no evidence to establish a causal link, summary

judgment in favor of Defendant is appropriate on the

retaliation claim. i

2. The Reason for the Adverse Action as Pre-

text

Even if Tutman were able to make out a prima facie

retaliation claim, CBS is entitled to summary judgment on

Tutman’s retaliation claim because Tutman has offered no

evidence to show that CBS’s reason for not extending

Tutman’s medical leave was pretext. CBS’s stated reason

for not extending the medical leave was that CBS’s policy

App. 27

does not allow medical leave to be extended beyond six

months and no exceptions are made to this limitation.

The McKenzie case is directly on point. 92 F.3d 473. In that

case the adverse action suffered by the plaintiff was her

employer refusing to allow her to leave the premises

during her breaks. Id. at 484. However, the employer

explained that it was the company’s policy that no

employee was allowed to leave during break times. Id.

The Seventh Circuit stated that, even assuming that the

plaintiff had established a prima facie case of retaliation,

she failed to present any evidence tending to disprove

that the break policy applied to all employees. Id. Because

the plaintiff was unable to prove that the stated explana-

tion for the adverse action was pretext, the Seventh Cir-

cuit affirmed the grant of summary judgment against her

on the retaliation claim. Id.

In the present case, Tutman also provided no evi-

dence to cast doubt on the stated reason given by CBS for

not extending his medical leave. In both the present case

and McKenzie, the employer stated that the reason for the

adverse action was adherence to policy. Tutman was

unable to give examples of other employees for whom an

exception to the leave policy was made. (See Pl.’s 12(N)

Response { 105.) Consequently, in the present case, as in

McKenzie, Plaintiff has failed to present any evidence

tending to cast doubt on the testimony that the policy

applied to all employees. As a result, Plaintiff cannot

maintain a cause of action for retaliation.

App. 28

B. The Hostile Work Environmeni Claim

The Court also recommends granting Defendant's

motion for summary judgment on the hostile work envi-

ronment claim. Although the Court concludes that Plain-

tiff did create a genuine issue of material fact as to the

existence of a hostile work environment, the Court con-

cludes that CBS’s response to Tutman’s complaint was

prompt and appropriate. In order to establish a claim of

hostile work environment, a plaintiff must meet three

elements. First, he must show that he subjectively

believed that the alleged wrongdoer’s conduct created a

racially hostile environment. McKenzie, 92 F.3d at 480.

Second, he must show that the alleged wrongdoer’s con-

duct objectively created a racially hostile environment. Id.

Finally, he must show that the defendant knew, or should

have known, of the alleged wrongdoer’s conduct and the

defendant failed to take prompt and appropriate remedial

action in response to that conduct. Id. (citing Brooms v.

Regal Tube Co., 881 F.2d 412, 421 (7th Cir.1989)).

If an employer takes reasonable steps to dis-

cover and rectify the harassment of its

employees, however, it has discharged its legal

duty. Baskerville v. Culligan Int’l Co., 50 F.3d 428,

431 (7th Cir.1995). “An employer’s response to

alleged instances of employee harassment must

be reasonably calculated to prevent further

harassment under the particular facts and cir-

cumstances of the case at the time the allega-

tions are made.” Brooms, 881 F.2d at 421. We are

not to focus “solely upon whether the remedial

activity ultimately succeeded, but instead

should determine whether the employer’s total

response was reasonable under the circum-

stances as then existed.” Id. The reasonableness

App. 29

of an employer’s response depends, in part, on

the gravity of the harassment alleged. Basker-

ville,50 F.3d at 432.

McKenzie, 92 F.3d at 480.

1. The Single, Isolated Incident of Harassment

Tutman has offered sufficient evidence of harassment

to create a genuine issue of material fact as to the exis-

tence of a hostile work environment. The determination

of a hostile work environment can only be made by

evaluating all of the circumstances which include the

frequency and severity of the discriminatory conduct,

whether the conduct is physically threatening or humili-

ating, and whether it is an unreasonable interference with

the victim’s work performance. Harris v. Forklift Systems,

Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295

(1993). ;

Defendant argues that, as a matter of law, a single

incident of harassment is insufficient to support a hostile

work environment claim. Seventh Circuit caselaw demon-

strates otherwise. The Seventh Circuit has stated that a

single act can be sufficient to support a hostile work

environment claim. King v. Board of Regents, 898 F.2d 533,

537 (7th Cir.1990). While it is true that in King the Seventh

Circuit pointed out that “[a]lthough a single act can be

enough, generally, repeated incidents create a stronger

claim of hostile environment, with the strength of the

claim depending on the number of incidents and the

intensity of each incident,” id., the Seventh Circuit has

specifically criticized the use of any bright line rule

App. 30

requiring a minimum number of incidents to support a

hostile work environment claim as a matter of. law.

The determination of defendant’s liability “must

be made on a case-by-case basis after consider-

ing the totality of the circumstances.” Nazaire,

807 F.2d at 1380-1381. Within the totality of cir-

cumstances, there is neither a threshold “magic

number” of harassing incidents that gives rise,

without more, to liability as a matter of law nor

a number of incidents below which a plaintiff

fails as a matter of law to state a claim. Daniels,

937 F.2d at 1273-1274.

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

(7th Cir.1993). Consequently, the Court refuses to con-

clude that one incident is, as a matter of law, insufficient

to support a hostile work environment claim.

That conclusion, coupled with the evidence that the

incident at issue was especially severe, leads this Court to

conclude that Plaintiff has submitted sufficient evidence

to create a genuine issue of material fact as to the hostile

work environment claim. Courts have pointed out that

the racial epithet of “nigger” is particularly offensive. See

Rodgers, 12 F.3d at 675. In Rodgers, the Seventh Circuit

stated that the word “nigger” is unambiguously racist

and held that its use on even a few occasions affects the

terms and conditions of the plaintiff's employment

severely enough to support a hostile work environment

claim. Id. Other courts have also noted the severe impact

of the use of the word. See Bailey v. Binyon, 583 F.Supp.

923, 927 (N.D.II1.1984). “The use of the word ‘nigger’

automatically separates the person addressed from every

non-black person; this is discrimination per se.” Id.

ii i a a

App. 31

In addition, in the present case, it is undisputed that

Vasilopulos not only used the word “nigger” in the

exchange with Tutman but Vasilopulos also threatened to

- kill Tutman. This added physical threat makes the present

case distinguishable from cases in which the Seventh

Circuit has held that there was no hostile work environ-

ment as a matter of law. See McKenzie v. Illinois Dep’t of

Transportation, 92 F.3d 473, 480 (7th Cir.1996) (holding that

three sexually suggestive comments over a three month

period were not frequent enough nor severe enough to be

unreasonable interference with the plaintiff’s work envi-

ronment); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d

878, 885 (7th Cir.1998) (holding that a single offensive,

racist comment was not sufficient to establish a hostile

work environment). Consequently, the Court concludes

that the evidence submitted by Plaintiff creates a genuine

issue of material fact as to whether the discriminatory

conduct suffered by Plaintiff was so offensive and severe

that a single act of it creates a hostile work environment.!

x 1 Plaintiff cited to several additional instances of

discriminatory conduct at CBS which the court may properly

consider in deciding the motion for summary judgment. The

Court concludes that one set of these allegations adds support

to Plaintiff’s hostile work environment claim. Mr. Tutman

testified as to general discriminatory treatment directed at

minorities. (Pl.’s 12(N) Statement { 16.) In addition, Mr. Tutman

himself allegedly was the target of four or five physical threats.

(Pl.’s 12(N) Statement { 17. but cited pages not included in

exhibits) Further, there was an additional incident with

Vasilopulos in which he told an African-American producer to

“get the fuck out of my office.” (Pl.’s 12(N) Statement { 23.)

Finally, there were allegations of racial harassment being

suffered by third parties at CBS including one employee being

called a “spic” and another employee being told she was “too

dark.” (Pl.’s 12(N) Statement { 15.)

App. 32

2. Response to the Conduct

Even though Tutman was able to demonstrate that

Vasilopulos’s conduct created a racially hostile work

First, the Court finds the allegations regarding general

discriminatory treatment are insufficient to provide evidence of

a hostile work environment in that Plaintiff has provided no

specific details regarding any particular instances of such

treatment aside from a list of names and a brief, general

description of an adverse action suffered by that person. The

Court cannot make any informed assessment as to the severity,

frequency, or pervasiveness of these incidents with only these

general allegations. It would not even be possible to conclude

from these general allegations whether the conduct was actually

discriminatory as compared to, for instance, racial slurs which

are discriminatory on their face. It is not the Court’s place to

hold a mini-trial on each one of these incidents. Consequently,

this allegation cannot provide the basis for a hostile work

environment claim.

Second, regarding the allegations that Tutman himself

suffered four or five physical threats, Plaintiff failed to provide

details as to the specific instances of threatening conduct nor

facts to support the allegation that these were motivated by

discrimination. In fact, aside from including these allegations in

his statement of facts, Plaintiff did not even include the

deposition pages in his exhibit to which he cited. The Court will

not presume, without any evidence, that these incidents were

discriminatory; thus, the allegations of physical threats provide

no evidence to support Tutman’s hostile work environment

claim. ;

Finally, as to the racial slurs directed at other employees at

CBS and the profanity Vasilopulos directed at an African-

American producer, the Court will consider these based on

Northern District of Illinois and Seventh Circuit precedents

demonstrating that it is permissible for a court to consider

harassment of third parties in hostile work environment claims.

See Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 460 (7th

Cir.1990) (considering corroborating evidence as to instances of

App. 33

environment, CBS is entitled to summary judgment on

Tutman’s hostile work environment claim because the

record is clear that as a matter of law CBS took prompt

and appropriate remedial action in response to

_ Vasilopulos’s conduct. An employer can be held responsi-

ble for a hostile work environment only if, when an

employee harasses a coworker, the employer knew or had

reason to know of the conduct and failed to take appro-

priate corrective action. McKenzie, 92 F.3d at 480. An

employer acts unreasonably if the employer unduly

delays its response to an incident or if the action the

employer does take is not reasonably likely to prevent the

conduct from recurring. Saxton v. American Telephone &

Telegraph Co., 10 F.3d 526, 535 (7th Cir.1993).

harassment of other employees); Valadez v. Uncle Julio’s of

Illinois, Inc.,-895 F.Supp. 1008, 1013 (N.D.II1.1995) (stating that

“the court can consider evidence of sexual harassment directed

at other employees of the same sex as plaintiff” when

determining the existence of a hostile work environment).

Consequently, the racial slurs and profanity directed at other

minority employees can be considered in the hostile work

environment claim. However, even combined with the threat

towards Tutman, Tutman has still only provided evidence of

four isolated incidents of racial discrimination at CBS. While

there is a question as to when Tutman learned of these incidents,

these instances do have the potential to provide added

corroboration of Plaintiff’s claim of a hostile work environment.

Consequently, this evidence further supports the Court’s

conclusion that there is a genuine issue of material fact as to

Plaintiff’s hostile work environment claim.

App. 34

a. Appropriateness in General

Plaintiff argues that CBS’s response was not appro-

priate because it did not conduct an adequate investiga-

tion. Plaintiff disputes whether there was an actual

investigation and alleges that the so-called investigation

was in actuality just a series of meetings. However, Plain-

tiff did not dispute a single paragraph in CBS’s statement

of facts describing the investigation. (Pl.’s 12(N)

Response 4{ 35-65.) The investigation included multiple

interviews with Vasilopulos, (Def.’s 12(M) {¥ 40, 51, 59),

interviews with Tutman, (Def.’s 12(M) {] 44, 59), and

interviews with employees who had witnessed the inci-

dent, (Def.’s 12(M) { 59). The investigation also included

inquiries into the incident by three different individuals,

the News Director, the General Manager, and a represen-

tative from the New York Human Resources Department.

(Def.’s 12(M) {{ 39, 40, 51, 58.) In addition, Plaintiff cites

no cases to support his position that this was an inade-

quate investigation. Consequently, the Court concludes

that the investigation was sufficient as a matter of law.

Plaintiff also argues that CBS’s response was not

appropriate because CBS’s policy required that

Vasilopulos be terminated. Plaintiff argues that CBS did

not have discretion under its policy on how to discipline

Vasilopulos. This argument is rejected because the policy

on its face provides CBS with discretion. The policy states

that

CBS will not tolerate any form of harassment on

account of race, color, national origin, religion,

sex, age, sexual orientation. . . . The Company

will investigate any issue as it arises and will

take appropriate action. Any employee who

App. 35

engages in such harassment will be subject to

discipline, up to and including termination.

(P1.’s Ex. 5, CBS Policy, General, Fair Employment Prac-

tices) (emphasis added).

The following categories are examples of con-

. duct which may be grounds for immediate dis-

charge. . . . Each situation is to be judged on a

case-by-case basis. . . .

Misconduct

Conduct which is adverse to the safety and wel-

fare of CBS or its employees, including, but not

limited to, any act of violence to property or

person. . . . or any behavior, which in the sole

discretion of CBS, endangers CBS’ employees,

premises, or property or presents a threat of

such danger... .

(Pl.’s Ex. 5, CBS Policy, Discipline and Termination)

(emphasis added). First, under the policy, harassment

does not require immediate termination only discipline,

“up to and including termination.” Second, the Discipline

and Termination section does not mandate termination

for the listed categories but only says that it may be the

result. Third, even if the Discipline and Termination sec-

tion did require termination, the conduct at issue does

not necessarily fall into the Misconduct category within

the Discipline and Termination section. The conduct at

issue could be interpreted one of two ways: (1)

Vasilopulos was serious and intended his words to be a

threat to kill Tutman or (2) Vasilopulos was merely joking

around and never genuinely intended to kill Tutman or

for his words to be interpreted as a serious threat to kill

Tutman. Consequently, it was open for interpretation as

App. 36

to whether Vasilopulos’s conduct was a genuine threat of

violence which fell within the Misconduct category. After

investigation, CBS concluded that it did not. It was

within CBS’s discretion to draw that conclusion.

Seventh Circuit case law reinforces the conclusion

that CBS’s response was appropriate. In McKenzie v. Illi-

nois Dep't of Transportation, 92 F.3d 473, 483 (7th Cir.1996),

the employer’s response to an employee’s sexually sug-

gestive remarks to the plaintiff consisted of having a

meeting to discuss the complaint, deciding that the

employee would have no further contact with the plain-

tiff, and issuing a memo reiterating the company’s sexual

harassment policy. Id. The Court held that, as a matter of

law, the response was a reasonable one given the gravity

of the conduct. Id. In Iovin v. Northwestern Memorial Hospi-

tal, 916 F.Supp. 1395, 1411 (N.D.II1.1996), the employer’s

response to discriminatory remarks made to the plaintiff

consisted of telling the plaintiff that such remarks would

not be tolerated, meeting with the offender and warning

him that the conduct was inappropriate and must cease

immediately, issuing a written warning to the offender

which detailed the employer’s anti-discrimination policy,

and finally moving the plaintiff’s workstation away from

the offender’s. Id. The court held that, as a matter of law,

this was an appropriate response. Id.

CBS’s response to the harassment at issue in the

present case went farther than the response in either Jovin

or McKenzie. Not only did CBS issue a warning letter to

the wrongdoer as did the employer in Jovin, assure that

the plaintiff and the wrongdoer would have no further

contact as did both the employers in lovin and McKenzie,

and recirculate its antidiscrimination policy as did the

App. 37

employer in McKenzie, but CBS also sent the wrongdoer

to a training session. Thus, even though the gravity of the

conduct in all of these cases was comparable, that is,

consisting of discriminatory remarks, CBS response went

beyond the responses in McKenzie and lovin. Thus, based

on these precedents, CBS’s response in the present case

was appropriate as a matter of law.

b. Promptness

The Court must also examine whether CBS’s

response was sufficiently prompt after Tutman com-

plained of Vasilopulos’s conduct. The Court concludes

that no question of fact exists on this issue. CBS’s

response consisted of the following actions within the

following time frames. First, after Tutman reported the

incident to his supervisor, his supervisor immediately

reported it to the News Director. (Def.’s 12(M) { 38.) The

News Director began his investigation the very day of the

incident. (Def.’s 12(M) {{ 39-40.) The next business day,

Tutman reported the incident to the General Manager of

the station, who began his own investigation. (Def.’s

12(M) {{ 51-52.) Four days after the incident, the Director

of Policy and Administration from the human resources

department traveled from New York to also conduct an

investigation independent of the others that were occur-

ring. (Def.’s 12(M) { 58.) Finally, before the clos of two

weeks, CBS had concluded its investigation and deter-

mined what course of action it would take in response to

the incident. (Def.’s 12(M) {{ 74-84.) Further, two out of

three prongs of its response, the letter of reprimand to

Vasilopulos and Vasilopulos’s letter to Tutman, were also

App. 38

completed within two weeks of the incident, leaving only

Vasilopulos’s training to be completed. (Def.’s 12(M)

11 75, 84-86.)

Under the case law, an investigation and response

within two week’s time is sufficiently prompt. In Saxton,

the court concluded as a matter of law that the employer

acted with sufficiently promptness when the supervisor

began his investigation the day after the plaintiff lodged

her formal complaint, the supervisor completed his

report two weeks later, and finally the wrongdoer was

disciplined within five weeks of the incident. Saxton, 10

F.3d at 535. In McKenzie the Court held that, as a matter of

law, an employer’s response was prompt when manage-

ment met to discuss the complaint and determine a

course of response within ten days of the incident being

reported. McKenzie v. Illinois Dep't of Transportation, 92

F.3d 473, 481 (7th Cir.1996). Consequently, the Court con-

cludes that CBS’s present action of investigating the inci-

dent, determining its course of action, and reprimanding

the offender within two weeks of the incident is suffi-

ciently prompt. ,

c. Reasonably Likely to Prevent the Con-

duct from Recurring

The Court also concludes as a matter of law that

CBS’s investigation and response to the incident was

reasonably likely to prevent the conduct from recurring.

First, when Tutman reported the incident to Jenkins, Sim-

mons, and McGann, all verbally responded to Tutman in

a way that demonstrated that they were taking the allega-

tions seriously. (Def.’s 12(M) {{ 26-27, 33, 47.) Jenkins

App. 39

- told Tutman that he had done the right thing by inform-

ing her of the incident and assured him that she would

take care of the matter. (Def.’s 12(M) ¥] 26-27.) Simmons

told Tutman that he had done the right thing by reporting

the incident. (Def.’s 12(M) | 33.) Simmons also told Tut-

man that he would discuss the incident with Jenkins.

(Def.’s 12(M) | 34.) McGann told Tutman that he was

taking the allegations very seriously and resolving the

matter would be McGann’s top priority. (Def.’s 12(M)

{ 47.) Several members of CBS management also

informed Vasilopulos that the allegations against him

were very serious. (Def.’s 12(M) {{ 41, 55.) Immediately

after the incident, three different members of CBS man-

agement launched investigations into the occurrence.

(Def.’s 12(M) {¥ 39-40, 51-52, 58.)

These investigations resulted in a conclusion that

although Vasilopulos’s behavior was inappropriate, it

was not meant to be seriously threatening and

Vasilopulos posed no risk of violence to Tutman. (Def.’s

12(M) ¥{ 66-67.) As a result, there was a three pronged

response to Vasilopulos which included a warning letter

to Vasilopulos that was placed in his file, sending

Vasilopulos to a workshop on workplace relationships,

and the letter from Vasilopulos to Tutman. (Def.’s 12(M)

{1 74-80.) CBS additionally took several other steps to

prevent the occurrence of similar incidents. CBS put Tut-

man on paid leave until and even after the situation was

resolved. (Def.’s 12(M) { 89.) In addition, CBS recircu-

lated its anti-discrimination policy to all employees at the

station. (Def.’s 12(M) { 87.) Finally, CBS saw to it that

there would be no contact between Tutman and

App. 40

Vasilopulos by placing them on different shifts and allow-

ing Tutman to get his assignments without coming into

the station. (Def.’s 12(M) { 96.) The Court concludes that

this response was reasonably likely to prevent the con-

duct from recurring.

Plaintiff argues to the contrary. Plaintiff points out

that Vasilopulos had prior written reprimands in his file

for similar instances in which he raised his voice at other

employees and used profanity. Plaintiff posits that the

incident between Vasilopulos and Tutman demonstrates

that written reprimands neither altered nor modified

Vasilopulos’s behavior. Consequently, Plaintiff argues

that CBS’s response to Vasilopulos’s treatment of Tutman

was not appropriate because CBS had prior notice that a

written warning to Vasilopulos was insufficient to pre-

vent such behavior from recurring. Plaintiff, however,

misconstrues the standard which requires prevention of

likelihood of recurrence.

First, CBS’s duty, the requirement of an appropriate

response, only requires that the employer insure that the

conduct will not likely be repeated between the offender

and the plaintiff. The likelihood of recurrence need only

be against the initial victim. See Saxton v. American Tele-

phone & Telegraph Co., 10 F.3d 526, 535-36 (7th Cir.1993)

(holding that transferring the offender to a different

department from the plaintiff “was a sufficient safeguard

against any recurrence of the harassment”). Thus, CBS

did not need to insure that Vasilopulos never again made

discriminatory or harassing remarks to any employee at

CBS, but only that Vasilopulos did not make discrimina-

tory remarks again to Tutman.

App. 41

The mere existence of repeat occurrences directed at

different victims does not make the discrimination suf-

fered by Plaintiff actionable. “Title VII is not directed

against unpleasantness per se but only . . . against dis-

crimination in the conditions of employment.” Carr v.

Allison Gas Turbine Div., General Motors Corp., 32 F.3d

1007, 1009 (7th Cir.1994). It is true that termination would

have prevented repeated discriminatory conduct by

Vasilopulos directed at any victim. However, the Court is

not a super human resources department. The Court is

not here to second guess CBS’s hiring and hiring deci-

sions. Vasilopulos certainly does not appear to be a pleas-

ant coworker. He has on more than one occasion treated

his coworkers disrespectfully and rudely. However, it is

not the Court’s job to review every prior incident in

Vasilopulos’s file, only the conduct directed at Plaintiff.

In sum, since CBS’s response to the present incident was

appropriate and designed to prevent repeat occurrences

of discrimination directed at Tutman, it was within CBS’s

discretion as an employer to choose to retain Vasilopulos.

Second, and perhaps more important, even if the

prior reprimand in Vasilopulos’s file demonstrated that a

written warning was insufficient to prevent repeat occur-

rences of discriminatory remarks directed at the same

victim, CBS took further undisputed steps to insure that

Vasilopulos and Tutman would never have to have con-

tact with each other. CBS offered Tutman different shifts

from Vasilopulos and the option of receiving his assign-

ments by telephone so Tutman would not have to come

into the station. This offer was perfectly sufficient to

insure the prevention of repeated discriminatory conduct

by Vasilopulos directed at Tutman. Consequently, CBS’s

App. 42

response was designed to prevent Tutman from suffering

repeated acts of discrimination by Vasilopulos. In sum, in

that Tutman fails to provide any evidence demonstrating

that CBS’s response to Tutman’s complaint was inade-

quate or inappropriate, Defendant’s motion for summary

judgment is granted.

C. The Constructive Discharge Claim

Finally, the Court recommends granting Defendant’s

motion for summary judgment on the constructive dis-

charge claim. To maintain a claim for constructive dis-

charge, a plaintiff must show that his working conditions

were so intolerable because of unlawful discrimination,

that a reasonable person would have been compelled to

resign. Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878,

885 (7th Cir.1998). A constructive discharge claim

requires the work environment to be an aggravating situ-

ation beyond ordinary discrimination. Rabinovitz v. Pena,

89 F.3d 482, 489 (7th Cir.1996). In that Tutman failed to

meet the high standard required for constructive dis-

charge, Drake, 134 F.3d at 886, the Court grants Defen-

dant’s motion for summary judgment.

This conclusion is dictated by Saxton v. American

Telephone & Telegraph Co., 10 F.3d 526, 535 (7th Cir.1993).

In Saxton, much like the present case, the employee plain-

tiff brought a claim as a result « dissatisfaction with the

employer’s response to discrimuuation. Id. at 530, 535.

“Nothing in the record indicates that [the defendant]

treated [the plaintiff] so poorly that a reasonable

employee in her position would have felt compelled to

resign. To the contrary, the evidence suggests that [the

App. 43

- defendant] went out of its way to ensure that [the plain-

tiff] was not placed in an uncomfortable or embarrassing

position while the company investigated her complaint

and took remedial measures.” Id. at 537 “Whatever lin-

gering dissatisfaction [the plaintiff] may have felt regard-

ing the resolution of her complaint or her position at

work, her situation cannot reasonably be described as

intolerable.” Id. The plaintiff’s evidence did not “support

an inference that [her] decision to abandon her job was

effectively coerced by [the defendant’s actions.]” Id. In

sum, the court acknowledged that when an employer

takes reasonable steps to rectify harassment, the

employer cannot be held liable for constructive discharge.

Id. In that, in the present case, the Court concluded above

that CBS took reasonable steps to respond to the incident

to Vasilopulos the Court concludes that a reasonable per-

son, in light of such a response, would not feel compelled

to resign.

IV. CONCLUSION

Plaintiff has not presented sufficient evidence to cre-

ate a genuine issue of material fact as to his retaliation

claim, his hostile work environment claim, or his con-

structive discharge claim. As a result, the Court recom-

mends that Defendant’s motion for summary judgment

be granted on all claims.