Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:05-CV-0452-Robert L. Miller, Jr., Chief Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
Before POSNER, WOOD, and WILLIAMS,Circuit Judges.
Jessica Magyar (to whom we refer in this opinion using her former last name of Houston) lost her job at Saint Joseph Regional Medical Center ("the Hospital") after she complained about perceived sexual harassment. She sued the Hospital on the theory that it had violated the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Reasoning that the evidence Houston submitted in response to the Hospital's summary judgment motion could not support a finding of causation, or in the alternative could not show that the Hospital's stated motive for terminating her was pretextual, the district court granted summary judgment to the Hospital. If we were the ultimate trier of fact, we would find this to be a close case. We are not, however, and we conclude that the record viewed in the light most favorable to Houston would permit her to prevail. We therefore reverse and remand for further proceedings.
While attending college, Houston took a position on April 19, 2004, as a part-time assistant scheduler in the Hospital's surgical department. She was classified as a PRN employee, which means that her work hours depended on the needs of the Hospital; she did not need to conform to regular hours, did not receive benefits, and was not required to accept work hours when offered.The equivalent of a full-time surgery scheduler position was covered by three people: one regular part-time employee (Carmen Sanchez) who worked half-time, and two PRN employees(Houston and Mikisha Williams, also a college student) who together took up the other half of the hours.
One day, Dale Carl, a 52-year-old male co-worker, came into a crowded Hospital lounge where there were no free chairs. Plopping down on 22-year-old Houston's lap, he whispered "You're pretty" into her ear. Houston was not amused. This happened some time between her April hiring date and late July or early August. That was not the first instance of Carl's misbehavior. Houston testified at her deposition that approximately one week before that incident, Carl had also sat on her lap and whispered a comment about her appearance. She explained that "I was hoping it was just a one-time occurrence, and I didn't-I didn't really-that was my first real job and I really didn't know what to do. And I had to check to see, you know, like what are the exact standards in the work force. And then I knew once he did that the second time that I had to talk to her because it was not a one-time occurrence." When Carl repeated the same move, Houston concluded that it was time to take action.
Around the first week of August, Houston reported the second incident to Pam Goddard, her boss. During this meeting, Goddard expressed reluctance to speak to Carl about the incident if Houston was unwilling to file a formal complaint. In response, Houston revealed that she had been a victim of sexual assault in the past and therefore she was sensitive to such behavior. Goddard agreed to speak to Carl and apparently did so later that day. Although the dissent asserts that Carl "apologized profusely," nothing in the record shows that he ever said a word to Houston or that she even heard that he had apologized to Goddard. The reason is because Goddard actually told him not to apologize to Houston when he asked whether he should do so.
The dissent contends that Goddard dealt with the sexual harassment complaint effectively, as no further incidents took place. But that is only half the story; from Houston's perspective, there was no evidence that any-thing (effective or otherwise) had happened. Goddard took no steps whatsoever to communicate with Houston regarding any resolution of her complaint, and so a trier of fact could infer that Houston (especially given the earlier incident of sexual assault) was left in fear that at any moment there might be a third incident. Goddard does not even allege that she followed up with Houston; her deposition testimony reveals that she simply assumed that the matter had been put to rest: "I talked to Mr. Carl that afternoon regarding Ms. [Houston]'s complaint. I heard nothing more from Ms. [Houston] regarding Mr. Carl and believed the issue had been resolved to Ms. [Houston]'s satisfaction, as I had spoken to Mr. Carl, as Ms. [Houston] requested, and no further incidents had occurred."
Houston had every reason to wonder whether any action had been taken at all; she probably attributed the lack of further incidents to her own attempts to avoid Carl. When asked in her deposition whether Carl did anything that Houston considered harassing in nature after Houston's conversation with Goddard, Houston testified as follows: "No. But I also tried to stay as much away from any contact with him. You know, I tried to avoid any of the conversations that I-you know, I tried to keep anything I had with him short." Although the dissent asserts that Houston sent an email to Goddard after the meeting to express satisfaction with Goddard's handling of the complaint ("the smiley-face email"), this email was sent on July 16, weeks before the meeting in question, and did not pertain to the Carl incident.
Therefore, on September 17, having received no follow-up information from Goddard about the resolution of the incident, Houston complained about Goddard's failure to respond to her complaint to the Hospital's General Counsel and Organizational Integrity Officer, Robert Wade. Sometime during the following week, Wade contacted Human Resources ("HR"), and HR instructed Goddard to meet with Houston again. On September 24, Houston and Goddard met twice; at some point, the discussion turned from the incident with Carl to the question why Houston felt the need to approach Wade. The next day, Goddard emailed Wade to report that Houston's issues "are resolved."
Goddard was mistaken. On September 26 (nine days after her first contact with Wade), Houston sent Wade a formal letter addressed "To Whom It May Concern," complaining about the manner in which Goddard had handled her initial complaint and the new fact that Houston's "job had been posted on the job listings" without notifying her, in apparent "retaliation for me turning her [Goddard] in." Houston's affidavit and her September 26 letter both indicate that she considered it inappropriate that she had to reveal her traumatic past in order to prod Goddard into action. On October 7, Goddard submitted to HR a job requisition form to restructure the position covered by PRN employees Houston and Williams into a single regular half-time position with benefits. The dissent defends Goddard's decision to expend budget funds on the payment of benefits by assuming that, if Goddard did not use these funds, they would disappear in the next budget cycle. There is no support in the record for this factual assumption (which interprets the record in the light most favorable to the defendant Hospital), nor for assuming that this fact, even if true, motivated Goddard's decision.
In any event, Houston was unable to bid for the new position because it conflicted with her class schedule. On October 20, the Hospital gave the job, which now included benefits, to Williams, who was the only person to bid for it since she had dropped out of college and freed up her schedule. Two days later, Goddard told Houston that she remained classified as a PRN and that she would be called if she was needed.
Goddard's statement turned out to be only half true. Shortly after she told Houston that she was still a PRN, Goddard told Williams and Sanchez to let her know if they needed someone to cover for them, rather than calling Houston. The Hospital asserts that the reason for this instruction was Goddard's business policy of covering shifts with regular employees whenever it is possible to do so without paying overtime, rather than using PRNs. Between October 22, 2004, and April 26, 2005, Houston was not called in to work at the Hospital a single time. On April 26, 2005, she received notice that she had been formally terminated because she did not work enough hours as a PRN employee during the relevant period; on the Termination Form submitted to HR effecting this action, Goddard marked "no" in the box asking whether the employee was eligible for rehire.
Believing that the Hospital had retaliated against her for complaining about Carl's harassment and for complaining about its failure adequately to address that harassment, Houston filed this suit under Title VII. The district court granted summary judgment to the Hospital, finding that Houston had failed to establish a prima facie case of retaliation, and that she failed to show that the Hospital's assertion that it was planning to restructure her job was pretextual.
Before turning to Houston's arguments on appeal, we should address a procedural point that the Hospital has raised in support of its judgment. In the district court, the Hospital moved to strike Houston's affidavit because it was unsigned, bearing instead solely an "electronic signature." The district court denied the motion because Houston submitted another affidavit on which her actual signature was added near the electronic signature. On appeal, the Hospital asks this court to disregard Houston's affidavit and thus to evaluate Houston's response to its summary judgment without that information.
A district court's ruling on a motion to strike an affidavit is reviewed for an abuse of discretion. Mannoia v. Farrow, 476 F.3d 453, 456 (7th Cir. 2007).The Hospital was not prejudiced by the initial defect in the affidavit (to the extent that it was a defect at all in a world where electronic signatures are regularly honored, see, e.g., Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 (requiring recognition of electronic signatures), Uniform Electronic Transactions Act, and Indiana Electronic Digital Signature Act, Burns Ind. Code Ann. § 5-24-3-1). In any event, Houston immediately substituted a copy with a traditional signature. The district court did not abuse its discretion in denying Hospital's motion to strike. Houston's affidavit is thus properly part of the record before us.
The only issue remaining in this appeal is whether the district court erred in granting summary judgment for the Hospital. We review a grant of summary judgment de novo. Sound of Music Co. v. 3M, 477 F.3d 910, 914 (7th Cir. 2007).
A claim of retaliation under Title VII may be established under either the direct method or the indirect burden-shifting method, which is an adaptation of the familiar framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). Houston has decided to rely on the direct method of proof. To establish a prima facie case this way, she must "present direct evidence of a statutorily protected activity, an adverse employment action, and a ...