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Susan A. King v. Acostasales and Marketing

March 13, 2012


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 C 456-Robert W. Gettleman, Judge.

The opinion of the court was delivered by: Easterbrook, Chief Judge.


Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.

Acosta Sales and Marketing is a food broker, which represents producers that seek to sell to supermarkets and other bulk purchasers. In 2001 Acosta's midwest operation hired Susan King as one of its business managers-a term that Acosta uses for people who represent a group of producers. (McCormick & Co., which sells spices and spiced foods, was one of King's major clients.) After quitting in 2007, King charged Acosta with two kinds of sex discrimination: that Acosta maintained a hostile work environment in which conditions for women were inferior to those for men, and that Acosta paid women less than men for the same work. Both kinds of discrimination violate Title VII of the Civil Rights Act of 1964, and discrimination in pay also violates the Equal Pay Act, 29 U.S.C. §206(d). King advanced some other claims in the district court but does not pursue them on appeal. King also sued four of Acosta's corporate affiliates; the only one that matters is her employer. See Bright v. Hill's Pet Nutrition, Inc., 510 F.3d 766, 771 (7th Cir. 2007). We disregard the rest.

The district court granted summary judgment to Acosta on King's claims under federal law. 2011 U.S. Dist. LEXIS 13958 (N.D. Ill. Feb. 10, 2011). Although the order did not mention her claim under state law, and the decision therefore was not final, King immediately ap-pealed. Last fall we dismissed that appeal for lack of jurisdiction. No. 11-1876 (7th Cir. Oct. 21, 2011). The parties returned to the district court, which wrapped up the suit. King has abandoned the state-law claim, so when she filed a new appeal we allowed the parties to proceed on their original briefs. It is at last ready for appellate decision.

King contends that the work environment at Acosta was hostile to her throughout her employment. The district judge broke that contention into two, asking first whether working conditions were actionable during the 300 days before King filed her charge with the EEOC (the judge gave a negative answer) and then whether acts that preceded the 300-day window could be attributed to the employer. That approach misapplied National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which holds that an employee may rest a hostile-working-environment claim on acts any time during her employment. Morgan concludes that, when an assertedly unlawful employment practice occurs as a pattern over time rather than in one discrete act, it does not matter when the individual deeds contributing to the pattern occurred, if the pattern continued into the 300 days before the charge's filing.

The district court's error does not require a remand, however, because King's evidence does not establish a pattern of hostility that continued into the 300 days before her charge. Most of the obnoxious acts were committed by Thomas Connelly, another of Acosta's business managers, between 2001 and 2004. Connelly distributed pornographic materials at work and in February 2002 showed King a picture of himself wearing only a trench coat, tight swimming trunks, and a dildo. Three months later Connelly gave King a pornographic video tape and a nine-inch dildo. In September 2004 he called her a "cunt" during a business meeting. King promptly complained to her supervisor. Connelly was disciplined and instructed to clean up his act; he did not harass King again before quitting in 2005, approximately two years before King filed her charge with the EEOC.

King's working environment was markedly better after September 2004. There were still events that King found unwelcome. One supervisor made a pass at her; another called her "Suzie Big Hair" and referred to one of King's co-workers as a "tramp" and another as "Pass-Around Patti." When a representative of one of Acosta's clients made a crude sexual remark, King's supervisor let the incident pass. All of this may have been unpleasant, but none of it was severe, and a few incidents at the rate of one every four to six months (which is what King's evidence shows) cannot be called pervasive. "The prohibition of harassment on the basis of sex . . . forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment. 'Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.' [Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).] We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace . . . for discriminatory 'conditions of employment.' " Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Once Connelly desisted, King's working environment was not marked by severe or pervasive hostility toward women. (We need not decide whether Connelly's behavior, which long predated the period of limitations, would satisfy the Supreme Court's hostile-working-conditions doctrine.)

Pay is a different matter. Even a dollar's difference based on sex violates both Title VII and the Equal Pay Act-and King established much larger differences. Some men in the same job classification, doing the same work under the same conditions, received more than twice her pay. Here's a table, with women's names in italics:

Business Manager Starting Year Starting Salary 2007 or Final Salary

Thomas Connelly 1998 $91,000.08 $122,004.00

Thomas Robaczewski 2000 $95,000.00 $101,921.00

Tim Wilson 2004 $85,000.01 $99,500.11

Helmut Fritz 2001 $94,999.99 ...

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