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TUTMAN v. WBBM-TV/CBS

April 29, 1999

ROBERT TUTMAN, PLAINTIFF,
v.
WBBM-TV/CBS INC., DEFENDANT.



The opinion of the court was delivered by: Bucklo, District Judge.

  ORDER

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.

I. Factual Background

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.)

A. The Incident

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.)

B. The Investigation

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.)

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
  including termination.

(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. . . .

Misconduct

  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 ...


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