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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1078

## Text

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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

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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
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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.

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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

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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).

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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.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1374%3A1. Public record. Not legal advice.