LONGSTREET, CRYSTAL v. IL DEPT CORRECTIONS
In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1849
CRYSTAL LONGSTREET,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS
and LAMARK CARTER, individually and
in his official capacity as Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 2490--James B. Zagel, Judge.
Argued December 3, 2001--Decided January 14, 2002
Before POSNER, EVANS, and WILLIAMS,
Circuit Judges.
EVANS, Circuit Judge. Crystal
Longstreet, a correctional officer at the
Joliet/1 Correctional Center, sued her
employer, the Illinois Department of
Corrections, and Warden Lamark Carter,
alleging that she was sexually harassed
and retaliated against after complaining
about it. Longstreet's complaint centered
on two distasteful workplace incidents
she encountered during a 30-day period in
1998. The district court granted summary
judgment for the defendants and
Longstreet appeals.
The first incident occurred when
Longstreet reported for her morning shift
at Joliet's Tower 2 to take over
fromRonald Bester, a correctional officer
whose shift was over. Bester, a crude
fellow who deserves absolutely no style
points, told Longstreet that he had been
trying to masturbate all night but that
he kept getting interrupted. He then
yelled at Longstreet and said she should
bring him a cup of water and soap. He
said this as he stood in the stairwell
masturbating in front of her. The next
day, Longstreet complained about the
incident to a prison chaplain, and a few
days later she prepared an incident
report. Warden Carter began an
investigation and placed Bester on a paid
leave pending the results of his
investigation. The Department of
Corrections (DOC) continued to
investigate the incident and, following a
hearing, suspended Bester. A month later,
it recommended that Bester be discharged
for cause. Apparently seeing the writing
on the wall, Bester resigned rather than
face a discharge hearing. All in all,
Bester was temporarily removed from
Joliet within days of Longstreet's
complaint and permanently out of a job in
4 months.
The second incident Longstreet complains
of occurred 30 days after the encounter
with Bester when another correctional
officer, Ronald Bills, allegedly rubbed
his penis across her buttocks. Longstreet
again prepared a report and informed
Warden Carter of the incident. The
incident was investigated and four
witnesses to the event, as identified by
Longstreet, were interviewed. It is
undisputed that none of the four
corroborated Longstreet's version of the
event, and the investigator (Janet
Richmond acting at Warden Carter's
request) concluded that the allegation of
sexual harassment could not be
substantiated. Bills, however, promised
the investigator that he would have no
further contact with Longstreet, a
promise which has been kept.
It is, we think, difficult to determine
which of the two incidents Longstreet
complains about, if true, was worse. Both
were close to 9's on a scale of 10. But
this is not a lawsuit against Bester
and/or Bills. It's a Title VII claim
which seeks to hold an employer
financially responsible for the
irresponsibility of a co-worker. And in a
case involving sexual harassment by a co-
worker, an employer is only liable for
employment discrimination under Title
VII, 42 U.S.C. sec. 2000e et seq., if it
negligently failed to take steps to
remedy the illegal harassment. Smith v.
Sheahan, 189 F.3d 529 (7th Cir. 1999).
Given that standard and the facts
alleged in this case, one may be excused
for questioning just why Longstreet filed
her lawsuit. She cannot contend that
removing Bester from Joliet (in all
practical respects he was fired) was not
sufficient to remedy the harassment. She
can hardly contend that the isolated
incident with Bills--which by the way she
does not emphasize on appeal--could be
the basis of an actionable sexual
harassment claim against her employer
under Title VII as we have construed it.
The answer seems to be that her real
contention is that the DOC was negligent
not so much in its response to her
complaints but in not preventing the
harassment in the first place. She says
that both Bester and Bills harassed
others before her. The contention is that
if the DOC had taken reasonable steps in
connection with those prior incidents,
these unpleasant things would not have
happened to her.
The facts of this case do not support
Longstreet's theory. The prior incidents
on which she relies do not show that the
DOC was negligent in its previous
dealings with Bester. In one prior
incident Bester apparently offered
Sergeant Tracey Terry $100 to "suck his
dick" and $200 to have sex with him.
Terry complained to her captain and to
Samantha Franklin, the officer
responsible for harassment complaints.
Terry told Franklin she never wanted to
work with Bester again. Bester was
reassigned and Terry got her wish; she
never had to work with him again.
Franklin thought this resolved the
situation and, in fact, there is no
evidence that Terry was ever harassed
again. Longstreet contends that the
employer's response was insufficient
because, even if Terry was satisfied with
the resolution of her case, the DOC had
an independent obligation to make a
further investigation and to make certain
that Bester clearly understood that his
reassignment was a result of his bad
behavior.
The only other evidence of prior
incidents consists of vague hearsay
allegations that both Bester and Bills
harassed other women in some way, but, in
what is a fatal flaw, there is no
allegation that any of these incidents
were reported to a supervisor. We doubt
that these facts would support a claim by
any of the other women. We do not know,
of course, because those cases are not
before us. Longstreet uses these prior
incidents to imply that if the men had
been properly dealt with in the other
incidents, they would not have been
recidivists.
We have recognized that deterrence is an
objective in imposing liability on
employers for the creation of a hostile
environment by a plaintiff's co-workers.
An employer's response to allegations of
harassment "must be reasonably calculated
to prevent further harassment under the
particular facts and circumstances of the
case at the time the allegations are
made." Brooms v. Regal Tube Co., 881 F.2d
412, 421 (7th Cir. 1989); McKenzie v.
Illinois Dep't of Transp., 92 F.3d 473
(7th Cir. 1996). What is a reasonable
response depends on the gravity of the
harassment. Baskerville v. Culligan Int'l
Co., 50 F.3d 428 (7th Cir. 1995). An
employer must take more care to protect
employees, depending on the seriousness
of the harassment. See Ellison v. Brady,
924 F.2d 872 (9th Cir. 1991). In this
case, we must determine how far those
principles can be stretched.
Here, the only prior incident with any
potential legal meat is the Terry/Bester
episode. The response to Terry's
complaint solved her problem with Bester;
he never harassed her again. The proper
measure of the reasonableness of the
DOC's response was dependent on the facts
and circumstances of that case. Short of
litigating Terry's situation in
Longstreet's case, there is little to be
said about it except that the DOC
response was not obviously unreasonable.
It would push the role of deterrence too
far to say that a response which seemed
to be within the realm of reasonableness
in one situation can, if ultimately it
did not have the proper deterrent effect,
be the sole basis for liability in
another case even if the employer's
response in the second case was clearly
sufficient. The DOC's response to Terry's
complaint was not patently unreasonable
and it solved her problem with Bester.
But it did not cure him of disgusting and
boorish behavior, as his interaction with
Longstreet shows. In response to
Longstreet's complaint, however, Bester,
in effect, was discharged, which by
anyone's measure has to be considered an
adequate response. But nevertheless,
Longstreet, in 20/20 hindsight, says that
she would not have had to suffer the
indignity imposed on her if the DOC had
taken different actions in regard to the
Terry complaint.
Although Longstreet's argument has
superficial appeal, we cannot conclude
that an employer is subject to what
amounts to strict liability for every
second incident of harassment committed
by an employee, especially when the first
incident was far less serious than the
second. Had Bester's acts toward Terry
been more severe--and as a result he had
merely been reassigned to another duty
station--we would be faced with a
different situation. Or were there actual
nonhearsay complaints that he harassed
several other women, and that despite
complaints he had not been disciplined,
the situation would also be different.
But what we have here is, in effect, one
prior incident which may or may not rise
to the level of actionable harassment and
which was not ignored by the employer,
followed by a second incident which
resulted in the de facto discharge of the
harasser. To say that the employer must
be held liable in the second incident
would be to impose strict liability on an
employer any time an employee commits two
acts of harassment. It would be a two-
strikes-and-you're-out rule. To be safe
from liability, an employer would always
have to discharge a person accused of any
kind of harassment because no employer
can predict with certainty, any more than
any judge sentencing a criminal defendant
can predict with certainty, that an
offender will not offend again.
Longstreet also contends that she was
retaliated against for complaining about
these incidents of harassment. She can
prevail on a retaliation claim if she can
show that she opposed an unlawful
employment practice under Title VII, that
she was the object of an adverse
employment action, and that the adverse
action was caused by her opposition to
the unlawful employment practice. Hamner
v. St. Vincent Hosp. and Health Care
Center, Inc., 224 F.3d 701 (7th Cir.
2000).
Longstreet says that it was retaliation
to move her from what had been a
permanent duty station in Tower 2 to a
new position in Tower 5. Contrary to
usual practice, which was to rotate
officers among duty stations, Longstreet
had been given a permanent duty station
because she was diagnosed with multiple
sclerosis soon after she began her
employment with the DOC, some 9 years
before her encounter with Bester. She
contends that the job requirements on
Tower 2 were easier for her to perform
than those on Tower 5. We note in passing
that a claim Longstreet brought under the
Americans with Disabilities Act was
dismissed based on the State's Eleventh
Amendment immunity, pursuant to
University of Alabama v. Garrett, 531
U.S. 356, 121 S. Ct. 955 (2001). Despite
the fact that there is no ADA claim, if
the transfer to Tower 5 was, in fact, an
adverse employment action taken because
of Longstreet's opposition to sexual
harassment, the claim is actionable under
Title VII.
That is a big "if." The evidence that
the Tower 5 duties were more onerous,
thus making the transfer an adverse
employment action, is way too thin. It
consists of Longstreet's description in
her deposition of the difficulties she
had performing the duties. However, she
was apparently able to perform them
without much of a problem. She worked at
Tower 5 almost 2 years before she was
transferred back to Tower 2.
Even were she to show that she suffered
an adverse employment action, in order to
prevail on her retaliation claim she must
also show a connection between the
transfer and her complaints of
harassment. Her only evidence of a
connection is the timing; the transfer
occurred 4 months after the second
complaint. This is insufficient. See
Sauzek v. Exxon Coal USA, 202 F.3d 913
(7th Cir. 2000).
Similarly, other alleged adverse
employment actions do not carry the day.
For instance, she complains of negative
performance evaluations and being
required to substantiate that her
absences from work were illness-related.
These events did not result in tangible
job consequences and therefore are not
adverse employment actions actionable
under Title VII. See Oest v. Illinois
Dep't of Corrections, 240 F.3d 605 (7th
Cir. 2001).
The judgment of the district court is
AFFIRMED.
FOOTNOTE
/1 Joliet is a legendary prison. The recent an-
nouncement that it will soon close (the victim of
the budget-cutter's knife) deserves a moment of
silence. Sentimentalists, however, longing for a
good look at the old fortress, can always cue up
"The Blues Brothers" (Universal Studios, 1980)
video and see the prison's magnificent medieval
facade and Joliet Jake's long walk to freedom and
the waiting Bluesmobile attended to by his broth-
er Elwood.