The opinion of the court was delivered by: Bucklo, District Judge.
The court has conducted a de novo review of both the factual
findings and legal analysis of Magistrate Judge Denlow's Report
and Recommendation. The court agrees with Judge Denlow's well
reasoned and thorough analysis and therefore adopts the Report
dated March 30, 1999 in its entirety. Accordingly, defendant's
motion for summary judgment on all claims [69-1] is granted and
judgment is entered in favor of defendant, CBS and against
plaintiff. Any pending motion in this case is terminated as moot.
Status hearing set for 4/30/99 is vacated.
REPORT AND RECOMMENDATION
Robert Tutman ("Plaintiff" or "Tutman") instituted this action
against WBBM-TV/CBS Inc. ("Defendant" or "CBS") and an employee
of Defendant, Robert Vasilopulos ("Vasilopulos"). Counts I and II
involved state law tort claims directed at Vasilopulos which were
previously dismissed. Count III is directed solely at Defendant
and charges it with violation of Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e. Count III includes three claims: a
retaliation claim, a hostile work environment claim, and a
constructive discharge claim. Defendant now brings a motion for
summary judgment on Count III arguing that there is no genuine
issue of material fact and it is entitled to judgment as a matter
of law. For the following reasons the Court recommends that
Defendant's motion for summary judgment be granted because the
facts viewed in the light most favorable to the Plaintiff
demonstrate that the Defendant did not violate Title VII.
The following facts are undisputed unless indicated otherwise.
Plaintiff Robert Tutman ("Plaintiff") was an employee of CBS
through November 22, 1995. (Def.'s Local Rule 12(M) Statement of
Undisputed Facts ("Def.'s 12(M)") ¶ 5.) He was assigned to
WBBM-TV as a cameraman. Id. Tutman's direct supervisor was
Kevin Yokley who reported to Andrea Jenkins. (Def.'s 12(M) ¶¶
6-7.) Tutman also reported to Jenkins. (Def.'s 12(M) ¶ 8.)
Vasilopulos was employed by CBS as a sports producer at WBBM-TV.
(Def.'s 12(M) ¶ 9.)
On Friday, May 19, 1995, Tutman was in the WBBM-TV sports
office talking to sportscaster, Tim Weigel. (Def.'s 12(M) ¶ 13.)
While Tutman was in the office, Vasilopulos walked in and said to
Tutman, "Get the fuck out of the office before I pop a cap in
you're ass." (Def.'s 12(M) ¶ 16.) Tutman responded to Vasilopulos
that the phrase was "bust a cap" not "pop a cap." (Def.'s 12(M) ¶
17.) Vasilopulos then asked Tutman if he had ever seen a movie
called "Niggers With Hats." (Def.'s 12(M) ¶ 18.) Tutman stated
that those types of movies make a lot of money and Tutman would
help Vasilopulos make such a movie. (Def.'s 12(M) ¶¶ 19-20.)
Tutman perceived Vasilopulos's statements and actions to be a
serious threat to Tutman's life made on account of Tutman's race.
(Pl.'s Modified Local Rule 12(N) Response to Defendant's Local
Rule 12(M) Statement of Material Facts ("Pl.'s 12(N) Response") ¶
21.) A number of WBBM-TV employees witnessed the exchange.
(Def.'s 12(M) ¶ 23.)
Following the exchange, both Tutman and Vasilopulos left the
sports office. (Def.'s 12(M) ¶ 24.) Tutman went directly to
Jenkins and informed her of the incident. (Def.'s 12(M) ¶¶ 7-9,
25.) Tutman left the station shortly thereafter to go home.
(Def.'s 12(M) ¶ 28.) On his way home, Tutman called D.E. Simmons,
a consultant hired by CBS to address employees' workplace
concerns, to inform Simmons of the incident as well. (Def.'s
12(M) ¶¶ 29-31.) After talking to Tutman, Simmons phoned Jenkins
and the two arranged to meet that night to discuss the incident.
(Def.'s 12(M) ¶¶ 35-36.) After their discussion, the two informed
John Lansing, the news director, of Tutman's concerns. (Def.'s
12(M) ¶¶ 27, 38.) Lansing questioned both Weigel and Vasilopulos
about the incident. (Def.'s 12(M) ¶¶ 39-40.)
The following Monday, Tutman called CBS to express that he was
not comfortable coming to the station because the incident with
Vasilopulos had not been resolved. (Def.'s 12(M) ¶¶ 42.) CBS
accommodated Tutman by giving him his
assignments over the phone. (Def.'s 12(M) ¶¶ 43.) At the end of
his shift Tutman requested and attended a meeting with Robert
McGann, the general manager, to inform McGann of the incident.
(Def.'s 12(M) ¶¶ 44-46.) Following that meeting, McGann met with
Jenkins and Lansing. (Def.'s 12(M) ¶ 48.) McGann initiated his
own investigation into the incident which began with a meeting
with Vasilopulos. (Def.'s 12(M) ¶¶ 51-52.) McGann's goal for this
meeting was to communicate to Vasilopulos that CBS was taking
Tutman's allegations seriously and to give Vasilopulos a chance
to explain his view of what had occurred. (Def.'s 12(M) ¶ 53.)
McGann also informed CBS's human resources department of the
incident and it was determined that that department would
continue the investigation. (Def.'s 12(M) ¶¶ 56-57.) In addition,
CBS's Director of Policy and Administration, Sandra Spangenberg,
traveled from New York to conduct an investigation. (Def.'s 12(M)
¶ 58.) After interviewing Tutman, Vasilopulos, and other
witnesses, Spangenberg recommended giving Vasilopulos a written
warning. (Def.'s 12(M) ¶¶ 59, 61.)
C. CBS's Disciplining of Vasilopulos
At the conclusion of these investigations, CBS determined that
Vasilopulos did not pose a physical threat to Tutman but, because
his conduct had been inappropriate, CBS believed that Vasilopulos
should be disciplined. (Def.'s 12(M) ¶¶ 66-67.) One possible
course of action that CBS explored was terminating Vasilopulos.
(Def.'s 12(M) ¶¶ 68, 73.) The parties dispute whether CBS policy
mandated terminating Vasilopulos. (See Def.'s 12(M) ¶¶ 68-73;
Pl.'s 12(N) Response ¶¶ 68-73.) CBS policy relating to the
incident is as follows.
CBS will not tolerate any form of harassment on
account of race, color, national origin, religion,
sex, age, sexual orientation. . . . The Company will
investigate any issue as it arises and will take
appropriate action. Any employee who engages in such
harassment will be subject to discipline, up to and
(Pl.'s Ex. 5, CBS Policy, General, Fair Employment Practices.)
The following categories are examples of conduct
which may be grounds for immediate discharge. . . .
Each situation is to be judged on a case-by-case
basis. . . .
Conduct which is adverse to the safety and welfare of
CBS or its employees, including, but not limited to,
any act of violence to property or person. . . . or
any behavior, which in the sole discretion of CBS,
endangers CBS' employees, premises, or property or
presents a threat of such danger. . . .
(Pl.'s Ex. 5, CBS Policy, Discipline and Termination,
Misconduct.) After its investigation, CBS concluded that
Vasilopulos's conduct did not fall within the Misconduct
category and that terminating Vasilopulos was not warranted
because Vasilopulos had not intended for his comments to be
threatening. (Def.'s 12(M) ¶¶ 68, 73.)
CBS decided on a three-part response to Vasilopulos's conduct.
(Def.'s 12(M) ¶ 74.) First, CBS gave Vasilopulos a written
warning and placed a copy in Vasilopulos's personnel file.
(Def.'s 12(M) ¶¶ 75, 77.) The warning emphasized that
Vasilopulos's conduct was inappropriate even though Vasilopulos
did not intend for Tutman to feel threatened. The letter also
stated that any further incidents of this type would result in
serious consequences, including possible termination. (Def.'s
12(M) ¶ 76.) Second, CBS sent Vasilopulos to a three-day
Interpersonal Skills Workshop which focused on promoting better
relationships in the workplace. (Def.'s 12(M) ¶¶ 78-79.) Finally,
CBS required Vasilopulos to apologize to Tutman. (Def.'s 12(M) ¶¶
80.) While Vasilopulos prepared a letter which was sent to
Tutman, (Def.'s 12(M) ¶¶ 84-86), the parties dispute whether the
letter constitutes an apology, (Pl.'s 12(N) Response ¶ 84). CBS
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 ...