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Lee v. Dairyland Power Cooperative

United States District Court, W.D. Wisconsin

March 20, 2018



          WILLIAM M. CONLEY District Judge.

         Plaintiff Jacqueline K. Lee, a former employee of defendant Dairyland Power Cooperative, alleges several of her co-workers sexually harassed her, creating a hostile work environment and constituting an unlawful employment practice by Dairyland under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a). More specifically, Lee asserts Dairyland violated Title VII in two ways: (1) by failing to remove the alleged harassers who created a hostile work environment; and (2) by maintaining as her supervisor and the person responsible for stopping future harassment, someone who had participated in some of the harassment. Before the court is defendant's motion for summary judgment, contending that her claims of harassment are not actionable under Title VII. (Dkt. #9.) Under current Title VII law, the court must agree and will grant defendant's motion.


         Dairyland Power Cooperative employed Lee as an administrative assistant at the La Crosse Area Boiling Water Reactor in Genoa, Wisconsin. On April 2, 2014, Lee overheard a conversation between Don Egge, her immediate supervisor, another Dairyland employee and a security contractor, discussing their desire for Lee to begin wearing her “spring outfits, ” comparing Lee to another employee described as “here come the jugs, ” and discussing another Dairyland employee who they believed was “banging someone.” (Def.'s PFOFs (dkt. #11) ¶ 6; Pl.'s Aff. (dkt. #17) ¶ 3.) Later that day, Lee called Mary Lund, Dairyland's Vice President of Human Resources, to complain about the incident. Lund spoke directly to Lee about the incident the next day, and met with Lee at her home on April 4. Soon after, Lund initiated an investigation of the incident in accordance with Dairyland's sexual harassment policy, and placed Lee on paid administrative leave for the duration of the investigation. In an interview with Lund, Egge admitted making inappropriate comments, and Lund concluded the conversation had occurred, including sexually demeaning commentary.

         In a meeting with Lund on April 10, 2014, Egge personally apologized to Lee, acknowledged that his words were not appropriate, and promised that it would not happen again. Egge also promised to protect Lee from retaliation and to abstain from further sexual harassment. Following this apology, Dairyland's counsel asked Lee to return to work for Egge the next day. Dissatisfied with Egge's apology and promises, Lee left the building. Lund met with Lee and Lee's counsel on April 14 to ask her again to return to work for Egge, explaining that there were no positions to which Dairyland could transfer Lee and assuring Lee that Dairyland would tolerate no further harassment by Egge or others. Feeling that Dairyland had not adequately remedied the situation, Lee tendered her resignation through her counsel later that day. On the same day, Lund suspended Egge for two weeks without pay as discipline for the incident and ordered him to attend retraining on Dairyland's sexual harassment policy upon his return.


         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. In deciding a motion for summary judgment, the court must view all facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         Here, plaintiff asserts a claim for sex discrimination under Title VII, based on Dairyland's failure to remedy a hostile work environment by appointing her supervisor Egge as the person in charge of ensuring harassment did not occur again, and by not terminating the participants of the April 2 conversation.[2] To prove sexual harassment under Title VII, a plaintiff must demonstrate that: (1) she experienced unwelcome harassment; (2) the harassment was based on sex; (3) the harassment was so severe or pervasive that it altered the conditions of her employment and created a hostile or abusive environment; and (4) a basis for employer liability exists. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007). Dairyland argues it is entitled to summary judgment because Lee has failed to put forth sufficient evidence from which a reasonable jury could find that the harassment was severe or pervasive or that there is a basis for employer liability. The court will address two of these requirements -- the severity of the harassment and the basis for employer liability -- either one of which falls far short of a viable Tile VII claim on the facts here.

         I. Severe or Pervasive Harassment

         To show severe or pervasive harassment sufficient to create a hostile work environment, the offending conduct must be both subjectively and objectively offensive. Boumehdi, 489 F.3d at 788. At least for purposes of summary judgment, defendant does not dispute that Lee felt subjectively offended by the April 2 comments. To determine whether harassment is objectively offensive, courts must consider “the frequency of the conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the alleged victim's work performance.” Id. at 788 (citing Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806-07 (7th Cir. 2000)). Under current law, “‘occasional vulgar banter, tinged with sexual innuendo of coarse or boorish workers' generally does not create a work environment that a reasonable person would find intolerable.” Id. at 788 (quoting Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995)).

         While crude and objectionable, the harassment Lee endured is not sufficient to meet this “severe or pervasive” standard. In particular, Lee has offered evidence of an isolated incident at Dairyland, which objectively did not make the workplace so intolerable that it altered the conditions of her employment. Moreover, although Lee avers to complaining to Egge about previous harassment by her coworkers, Lee only reports complaining to Lund (or anyone else in Dairyland's Human Resources department) about this single incident, also indicating a lack of pervasiveness.[3] Indeed, the Seventh Circuit's treatment of harassment claims strongly suggests verbal harassment limited to a one-time incident that was overheard, rather than intentionally inflicted, does not rise to the severe or pervasive standard under Title VII. See Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003) (four sexually charged comments over several months did not create a hostile work environment); Patt v. Family Health Sys., 280 F.3d 749, 754 (7th Cir. 2002) (eight gender-based comments over a three-year period too isolated and sporadic to constitute a hostile work environment); Baskerville, 50 F.3d at 431 (nine gender-based comments over a seven-month period did not create a hostile work environment).

         Even so, a single incident can give rise to an actionable Title VII claim if the incident was extraordinarily severe. See EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 433 (7th Cir. 2012). The facts here, however, are readily distinguishable from other isolated acts held to be severe enough to constitute actionable harassment. See Mgmt. Hosp. of Racine, Inc., 666 F.3d at 432 (supervisor severely harassed an employee when he stated he wanted to “fuck her, ” she was “kinky” and liked “rough sex, ” and physically groped her buttocks); Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999) (single incident of injuring employee's wrist due to her gender constituted severe harassment); Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008) (sexual assault constitutes severe harassment). Absent verbal harassment tied to physical violence or verbal threats of physical violence, direct solicitation of sex is the only harassment this court can identify that the Seventh Circuit has held as sufficiently severe on a singular basis to state an actionable Title VII claim. See Quantock v. Shared Mktg. Servs., 312 F.3d 899, 904 (7th Cir. 2002). While wholly inappropriate, particularly when a supervisor is a participant and the boisterous discussion can be overheard from inside a women's locker room, the comments at issue here were not directed at plaintiff, much less include either a threat of physical violence, nor solicitation of sex. Whether the bar should be that high to sustain a Title VII claim is to date not open to debate in the Seventh Circuit.

         In Hostetler v. Quality Dining, Inc., the Seventh Circuit expressly analyzed severity by placing the subject act on a continuum of conduct. The court considered physical harassment, where “intimate or more crude physical acts -- a hand on the thigh, a kiss on the lips, a pinch of the buttocks” could constitute severe harassment when frequent in occurrence, but not in isolation. 218 F.3d at 808. If the same spectrum applies to verbal harassment, the offensive comments here fall in a similar place on the spectrum as borderline -- but ultimately non-severe -- harassment the court finds not actionable in Hostetler. The conversation here was undoubtedly crude due to its sexual and individualized nature; and if a frequent occurrence, a reasonable jury could believe Dairyland fostered a hostile work environment that altered the conditions of Lee's employment; but this court is precluded from using Title VII to enforce a “general civility code” in the Dairyland workplace. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998). As such, the court is compelled to hold that a reasonable jury could not find that the comments arose to severe or pervasive harassment.

         II. ...

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