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Turner v. The Saloon, Ltd., No. 07-2449 (7th Cir. Feb. 8, 2010)

| Feb 7, 2010 | Daily Developments in EEO Law |

Though the Seventh Circuit long ago affirmed under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), that evidence of pre-charge harassment is admissible to prove a Title VII hostile-work-environment claim (see West v. Ortho-McNeil Pharmaceutical Corp., 405 F.3d 578, 95 FEP 961 (7th Cir. 2005)), it occasionally has to remind the district court judges of this rule, as in this female-on-male harassment case. 

Turner v. The Saloon, Ltd., No. 07-2449 (7th Cir. Feb. 8, 2010): Turner worked as a waiter at the defendant establishment from 1999 until 2004.  During the last two years, he ran into trouble with his female supervisor, with whom (according to the summary judgment record) he had a nine-month-long, consensual sexual relationship.  The supervisor seemingly tried to re-spark Turner’s interest, with several explicit comments and incidents of physical grabbing (including once directly at his crotch).  When he complained to management, Turner alleged, the supervisor retaliated by upbraiding him in front of his co-workers, giving him inferior assignments and eventually causing his termination when he abandoned his station.  The district court granted summary judgment on the entire case.

Although the Seventh Circuit affirms summary judgment on the employee’s claims of Title VII retaliation (as well as ADA reasonable accommodation and state-law wage violations), it remands for further consideration the harassment claim. It holds that the district court erred in applying the limitations period: “The district court read the statute and our cases to prohibit from considering any of Lake’s discrete acts of discriminatory conduct that occurred prior to 300 days from Turner’s EEOC filing. This decision excluded all but Lake’s August 2004 comment that she missed seeing Turner naked, which the court held was not sufficiently
severe or pervasive to constitute unlawful discrimination. . . . The court referred to Lake’s acts of sexual harassment as ‘discrete acts of discriminatory conduct,’ but Turner’s sexual-harassment claim rests on a hostile-workplace theory, as is typical of Title VII cases presenting similar allegations of inappropriate
touching.”

There is some other, notable commentary. The panel states that even a single incident of physical grabbing may create a hostile work environment:  “Turner’s claim that [supervisor] Lake grabbed his penis through his pockets is probably severe enough on its own to create a genuine issue of material fact.” Moreover, acts of retaliation incident to a harassment complaint may also contribute to the hostile work environment:  “Turner claims that Lake punished him for refusing her sexual advances by assigning him to less profitable tables and by reprimanding him in front of other employees. These allegations, taken together, create a genuine issue of material fact on Turner’s hostile-workplace claim.”

No trial is guaranteed in this case, though.  The panel notes that the district court did not rule on the remaining issue of whether the employer in this case may be liable for the supervisor’s behavior: “Because Lake was Turner’s immediate supervisor, The Saloon’s liability may turn on its ability to assert affirmative defenses under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).” So the panel suggests that this case may yet be fit for summary judgment.

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