This my favorite kind of entry to write: the Seventh Circuit revives a jury verdict for a victim of sex harassment, and in so doing elaborates that behavior not particularly sexual in nature - such as repeatedly calling a woman employee a "bitch" - can support Title VII liability. Regrettably, though, the plaintiff loses her termination claim and a large percentage of her damages.
Passananti v. Cook County, No. 11-1182 (7th Cir. July 20, 2012): Plaintiff Kimberly Passananti worked as deputy director of a program (DRC) that helped transition non-violent, pre-trial jail detainees into employment and drug treatment. From 2003 to 2006 she worked for a supervisor (Sullivan), who she claims harassed and ultimately invented charges against her because of gender. A year after Sullivan's departure, she was terminated - again, she claimed, because of her sex. She advanced claims against the county and Sullivan under Title VII (for harassment) and the county under Section 1983 (for denial of equal protection because of the termination).
The harassment took the form of persistent, vituperative language -
"Specifically, he called her a 'bitch' on 'numerous occasions,' . . . . Sometimes he called her a 'stupid bitch.' Sullivan also treated other women in the DRC this way: an investigator in the DRC, Sally Guide-Campillo, testified that as she was leaving Passananti's office in April 2006, she heard Sullivan say to Passananti, 'what is that fucking bitch doing in here this time? Tr. Vol. 3A at 19-20. A month later, Guide-Campillo overheard Sullivan tell another supervisor, 'you better instruct that F'n bitch to dress appropriately,' regarding a female DRC employee."
Sullivan placed Passananti's job in jeopardy in 2005 by accusing her of violating rules about how to treat program participants who cheated on drug tests, and of having had sexual contact with a participant. The latter charge was apparently wholly fabricated, while Passananti was punished more harshly for the former violation than male employees involved in the same incident. Passananti submitted a ten-page complaint about the harassment at this point to special counsel Galligher, which was never investigated.
In 2007, the year after Sullivan left, Passananti was fired.
Plaintiff prevailed at trial on her claims to ten tune of $4.1 million: $4 million in compensatory damages against Cook County, $70,000 in compensatory and $30,000 in punitive damages against Sullivan. But the district court granted judgment as a matter of law to the defendants, leaving plaintiff with no recovery.
On appeal, the Seventh Circuit reinstates the harassment verdict and $70,000 in damages. The district court erred in its application of a prior circuit decision, Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164 (7th Cir. 1996), which was understood to hold (in the context of summary judgment) that the use of the word "bitch" was simply too mild, common and ambiguous in our current culture to constitute harassment. The Seventh Circuit observes that Galloway was distinct because another motive, other than gender, was manifest in the record, i.e., a collapsed personal relationship between the plaintiff and alleged harasser.
Here, though, "there was no contextual evidence here that undermined the reasonable interpretation, that Sullivan's repeated and hostile use of 'bitch' to address and demean Passananti was based on her sex. No addition al proof was necessary to allow a jury to find that Sullivan used the word 'bitch' as a gender-specific term and that its impact was to degrade women in general and Passananti in particular." The panel cites cases from various circuits supporting the argument that sexually-degrading epithets by themselves may constitute harassment.
Though recognizing that some incidents of the word "bitch" may be non-gendered, the panel holds that the jury in this case could have found otherwise, especially when combined with the false imputation of plaintiff having sexual contact with a program participant. "The jury heard testimony that Sullivan used the word 'bitch' regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti's employment."
The panel also holds, over the district court's decision, that there was sufficient evidence for jury to find that the harassment was pervasive, as Sullivan called the plaintiff a "bitch" regularly from 2003 to 2006.
"Moreover, Sullivan did not use this gender-charged word in isolation. He also accused Passananti of violating a department 'urine tamper' rule and of having sex with a DRC participant. These accusations led to her temporary transfer and suspension. Applying proper instructions, the jury found that Sullivan's epithets and actions unreasonably interfered with the plaintiff's ability to do her job - after all, his behavior had a tangible impact. The evidence was sufficient evidence for the jury to find that Sullivan's conduct was so severe and/or pervasive as to have altered the conditions of her employment through an abusive working environment."
The plaintiff also beat the Faragher/Ellerth affirmative defense by making a timely complaint that was never investigated, and - to boot - the jury found that the county lacked an effective policy to remedy harassment.
Plaintiff unfortunately lost her appeal on the termination claim, with the panel holding that the record supported only the conclusion that her job was eliminated for purely budgetary reasons. "Sullivan was gone, and Passananti does not claim or offer evidence that anyone else in the department harbored any gender-based animus toward her."
To avoid an unnecessary retrial on damages, the panel scrutinizes the record and finds that the jury verdict is consistent with a finding that the county was vicariously liable for the harassment violation under Title VII, but that Sullivan could not be held individually liable for damages under Title VII. Moreover, the punitive damage verdict could not stand against a government agency under 42 U.S.C. § 1981a(b)(1), knocking the employee's ultimate recovery down to $70,000.