Holman v. St. of Indiana Dept, Transp.

Page 399

211 F.3d 399 (7th Cir. 2000)

Steven J. Holman and Karen L. Holman, Plaintiffs-Appellants, v. State of Indiana and Indiana Department of Transportation, Defendant-Appellee.

No. 99-1355

In the United States Court of Appeals For the Seventh Circuit

Argued November 4, 1999

Decided May 1, 2000

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 97 C 178--William C. Lee, Chief Judge.

Before Manion, Kanne, and Evans, Circuit Judges.

Manion, Circuit Judge.

In their Title VII suit filed in federal court, Steven and Karen Holman alleged that their supervisor at the Indiana Department of Transportation had sexually harassed each of them individually and on separate occasions, and because they had rejected his sexual solicitations the supervisor retaliated against each of them with certain deprivations. The district court held that the Holmans' complaint of an "equal opportunity harasser" failed to state a claim of sex discrimination under Title VII. See Holman v. State of Indiana, 24 F. Supp.2d 909, 915 (N.D. Ind. 1998) (denying plaintiffs' motion for reconsideration). Because the complaint specifically and unequivocally claimed that the same supervisor had been sexually harassing the male and female plaintiffs by soliciting sex from each on separate occasions and then had retaliated against each, we affirm the district court.

I. Background

Steven and Karen Holman are married and both work in the maintenance department at the Indiana Department of Transportation (IDOT). On May 21, 1997, they filed this action against the State of Indiana and the IDOT under Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. sec. 2000e et seq., and the Equal Pay Act (EPA), 29 U.S.C. sec. 206(d).¹ In paragraph 4(b) of the complaint, Karen alleged that "[s]ince December of 1995," her male shop foreman, Gale Uhrich, "began sexually harassing [her] by touching her body, standing too closely to [her], asking her to go to bed with him and making sexist comments and otherwise making [her] work in a sexually hostile work environment." Holman, 24 F. Supp.2d at 911. In paragraphs 4(c) and 4(d), she also alleged that when she rebuffed and protested Uhrich's "sexual propositions," he retaliated against her, and that she "has been denied equal pay for equal work." Id. In paragraph 6(b) of the complaint, Steven similarly alleged that "since August of 1995" Uhrich, who was also his foreman, "had sexually harassed [him] by grabbing his head while asking for sexual favors which requests were refused." Id. And in paragraph 6(c), Steven, too, alleged that Uhrich retaliated against him both for "refusing to 'give-in' to [Uhrich's] request for sexual favors" and "as a result of his affiliation with his wife, Karen L. Holman, who filed [internal] sexual harassment charges against Uhrich." Id. In paragraphs 5 and 7, both Karen and Steven sought compensatory damages under Title VII for the lost income, mental anguish, and stress they had suffered as a result of Uhrich's "sexual harassment and retaliation." (Karen also sought damages under the EPA for being paid "less money than similarly situated males." Complaint, para.5.)

The IDOT moved to dismiss the Holmans' Title VII sexual harassment claims under Fed. R. Civ. P. 12(b)(6). On September 8, 1997, the district court granted the motion, holding that "because both plaintiffs were alleging sexual harassment by the same supervisor, they both, as a matter of law, could not prove that the harassment occurred 'because of sex.'" Holman, 24 F. Supp.2d at 910. The Holmans moved the district court to reconsider its order in light of Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). See Holman, 24 F. Supp.2d at 910. The court denied the "motion for reconsideration with respect to the argument that Oncale altered [its] prior ruling," but it took its prior order under advisement and ordered supplemental briefing so the parties could address cases "which contained language" that supported the Holmans' argument that they both "could maintain a cause of action for sexual harassment." Id. After thoroughly surveying the applicable law, the district court denied the Holmans' motion for reconsideration and reinstated its order dismissing their sexual harassment claims. Id. at 916. Because the Holmans' retaliation and equal pay claims remained, the court certified its dismissal of their harassment claims pursuant to Fed. R. Civ. P. 54(b). See Granack v. Continental Cas. Co., 977 F.2d 1143, 1144-45 (7th Cir. 1992).² The Holmans appeal the dismissal of this claim, and we have jurisdiction over it under 28 U.S.C. sec. 1291 as a final decision. See King v. Gibbs, 876 F.2d 1275, 1277 (7th Cir. 1989). The Equal Employment Opportunity Commission (EEOC) appears as amicus curiae in support of the Holmans.

II. Discussion

We review de novo a dismissal of a claim under Rule 12(b)(6), accepting as true all facts alleged in the complaint and drawing all reasonable inferences from them in the plaintiff's favor. Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). "We will affirm the dismissal of a complaint if 'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

A. Title VII's Requirement of Discrimination and the "Equal Opportunity Harasser"

Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination on the basis of sex: "It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. sec. 2000e- 2(a)(1). The purpose of this provision is to prevent "'disparate treatment of men and women in employment,'" regardless of its form. Oncale, 523 U.S. at 78 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). Whenever, therefore, "'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.'" Id. (emphasis added) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).

In Oncale, the Supreme Court reiterated that "Title VII's prohibition of discrimination 'because of . . . sex' protects men as well as women," id., and it held that this prohibition applies to the same-sex harasser, whether or not that harasser is motivated by sexual desire. See id. at 79-80 ("If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination 'because of . . . sex' merely because the plaintiff and the defendant . . . are of the same sex."). In doing so, it underscored that the touchstone of Title VII is, of course, discrimination or disparate treatment. Oncale-- although a unanimous decision, only a few pages long--said so no less than four times, id. at 79- 81 and more than once with emphasis. See id. at 80 ("Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discrimina[tion] . . . because of . . . sex.'") (emphasis added). Indeed, Justice Thomas specifically (and pointedly, quite briefly) concurred to highlight that premise: "I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination 'because of . . . sex.'" Id. at 82.

The Court explicated what it meant by "discrimination" in sexual harassment cases; it is to be determined on a gender-comparative basis: "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. at 80 (emphasis added) (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). This inquiry applies to both same- and opposite-sex harassment. Id. at 80-81 ("A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes . . . ."). "Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue . . . actually constituted 'discrimina[tion] . . . because of . . . sex.'" Id. at 81 (emphasis in original). Thus a violation of Title VII only occurs because of sex discrimination.

Both before and after Oncale, we have noted that because Title VII is premised on eliminating discrimination, inappropriate conduct that is inflicted on both sexes, or is inflicted regardless of sex, is outside the statute's ambit. Title VII does not cover the "equal opportunity" or "bisexual" harasser, then, because such a person is not discriminating on the basis of sex. He is not treating one sex better (or worse) than the other; he is treating both sexes the same (albeit badly). See Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996) ("Harassment that is inflicted without regard to gender, that is, where males and females in the same setting do not receive disparate treatment, is not actionable because the harassment is not based on sex."); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1011 (7th Cir. 1999) ("Although we readily acknowledge that the factfinder could infer from such evidence that Jemison's harassment was bisexual and therefore beyond the reach of Title VII . . . ."); see also Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982) ("There may be cases in which a supervisor makes sexual overtures to workers of both sexes or where the conduct complained of is equally offensive to male and female workers. In such cases,...