also recirculated its anti-discrimination and fair employment
policies to all WBBM-TV employees. (Def.'s 12(M) ¶ 87.)
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. (Pl.'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)
¶¶ 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 management
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.)
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 medical leave
beyond the six-month allowed time period. (Def.'s 12(M) ¶ 104.)
Tutman was deemed to have voluntarily resigned on November 22,
1995 when he failed to return to work and failed to apply for
long term disability. (Def.'s 12(M) ¶¶ 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 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,
106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
When reviewing the record on summary judgment, the court must
draw all reasonable inferences in the light most favorable to the
nonmoving party. See Larimer v. 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 complaint 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 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 question 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 paragraph:
Mr. Tutman notified CBS of his intention to file a
Charge of Discrimination by correspondence dated
October 20, 1995. CBS met with Mr. Tutman 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 the meeting, Mr. Mark Engstrom denied Mr.
Tutman's request for extension of medical leave of
(Pl.'s 12(N) Response ¶ 104 (citations omitted).) The most that
Tutman shows is that CBS knew of his complaints at the time that
it took the adverse action. However, knowledge is insufficient to
establish a causal link. See Gibson v. Old Town Trolley Tours,
summary judgment in favor of Defendant is appropriate on the
2. The Reason for the Adverse Action as Pretext
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 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
explanation for the adverse action was pretext, the Seventh
Circuit affirmed the grant of summary judgment against her on the
retaliation claim. Id.
In the present case, Tutman also provided no evidence 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.
B. The Hostile Work Environment Claim
The Court also recommends granting Defendant's motion for
summary judgment on the hostile work environment claim. Although
the Court concludes that Plaintiff did create a genuine issue of
material fact as to the existence of a hostile work environment,
the Court concludes 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 conduct 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 discover 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 circumstances of the case at the time the
allegations 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 circumstances as then existed."
Id. The reasonableness of an employer's response
part, on the gravity of the harassment alleged.
Baskerville, 50 F.3d at 432.
McKenzie, 92 F.3d at 480.