The full case caption appears at the
end of this opinion. Kanne, Circuit Judge. CBS producerRobert Vasilopulos testified that “it wassimply a joke” when he told RobertTutman, an African-American CBScameraman, about a comedic movie calledNiggers with Hats and parroted a phrasefrom the movie by telling Tutman to”[g]et the fuck out of the office beforeI pop a cap in your ass.” Tutman,however, viewed the comment as a seriousdeath threat and lodged a formalharassment complaint with their employerWBBM-TV, Inc./CBS, Inc. (“CBS”). When CBSresponded by punishing Vasilopulos andpromising to separate Vasilopulos fromTutman at work, Tutman remaineddissatisfied and eventually sued CBSunder Title VII of the Civil Rights Act,42 U.S.C. sec.sec. 2000e to 2000e-17. Thedistrict court granted summary judgmentfor CBS on the hostile work environmentand constructive discharge claims, andTutman appealed. We affirm summaryjudgment because CBS took prompt andappropriate remedial action to preventfurther harassment and Tutman cannotestablish constructive discharge based onthe incident with Vasilopulos. I. History During the afternoon of Friday May 19,1995, Tutman was conversing withsportscaster Tim Weigel in the WBBM-TVsports office when CBS co-workerVasilopulos strolled into the office andsaid twice to Tutman, “Get the fuck outof the office before I pop a cap in yourass.” According to Tutman, Vasilopulosbegan prancing around, derisivelycaricaturing African-Americans. Surprisedby Vasilopulos’s outburst, Tutmanresponded that the correct phrase was”bust a cap,” not “pop a cap.”
[FOOTNOTE 1] Vasilopulos asked whether Tutman had seena movie entitled Niggers with Hats.Tutman answered that movies like Niggerswith Hats were profitable and thatVasilopulos should make a similar moviewith Tutman’s help. After two minutes,both men departed the sports office. However, Tutman later would testify thathe interpreted Vasilopulos’s outburst asa racially-motivated death threat and wasquite shaken by Vasilopulos’shistrionics. After leaving the sportsoffice, he visited his supervisor AndreaJenkins and told her about Vasilopulos’sbizarre behavior. Jenkins assured himthat he had done well to notify her andthat she would investigate his complaint.Tutman also called D.E. Simmons, anoutside consultant retained by CBS toadvise on workplace concerns, and toldhim about Vasilopulos. Simmons thencontacted Jenkins who asked Simmons tomeet with her at the office forthwith.The pair discussed the situation, thenimmediately reported Tutman’s complaintto News Director John Lansing. Lansinginvestigated further by speaking toWeigel and Vasilopulos that night aboutthe incident. On Monday May 22, 1995, Tutmantelephoned CBS that he would not come tothe station for work because of theincident with Vasilopulos the previousFriday. CBS gave Tutman his workassignment over the telephone, but Tutmandid venture to the station that afternoonto meet with General Manager RobertMcGann about his complaint. Jenkins andLansing then briefed McGann about the results of their investigation thus far. On Tuesday, McGann, Jenkins, Lansing,Simmons and Vasilopulos met to discussVasilopulos’s version of events.Afterward, McGann informed the CBS humanresources department about Vasilopulos’sconduct and Tutman’s complaint. OnFriday, one week after the incidentbetween Vasilopulos and Tutman, CBS’sDirector of Policy and AdministrationSandra Spangenberg arrived from CBS headquarters in New York to investigatefirsthand. After interviewing Tutman,Vasilopulos and other witnesses,Spangenberg told Tutman that hisallegation was serious and Vasilopulos’sobnoxious behavior would not be toleratedat CBS. Spangenberg told both Vasilopulosand Tutman that Vasilopulos would bepunished. Based on Spangenberg’s recommendations,CBS found that Vasilopulos posed nophysical threat to Tutman but had beengrossly inappropriate. CBS imposed atripartite punishment on Vasilopulos: (1)a written warning placed in his personnelrecord making clear that futuremisconduct would lead to more seriousdiscipline; (2) mandatory participationin a three-day interpersonal skillsworkshop aimed at promoting betterworkplace relationships; (3) Vasilopuloswas required to apologize to Tutman. Inaddition, CBS re-circulated its anti-discrimination and fair employmentpolicies to all employees. CBS previouslyhad disciplined Vasilopulos with lettersof reprimand for yelling “get the fuckout of my office” at producer HowardDorsey and for using profanity in thepresence of editor Debra Segal. However,at the time, Vasilopulos’s personnel filecontained no previous harassmentcomplaints or disciplinary actionsagainst him. Later, union officialJessica Logan would testify thatVasilopulos had disparaged CBS cameratechnician Morris Jones “as a nigger” inJune 1995, a month after CBS’sinvestigation of Vasilopulos’s harassmentof Tutman, but Jones did not bring aformal charge against Vasilopulos. Predictably, Vasilopulos wasunenthusiastic about his punishment.Vasilopulos balked at apologizing toTutman but understood that CBS was takingTutman’s complaint “very seriously” andwould terminate him if he did not comply.With continued insistence by CBS,Vasilopulos wrote a June 2, 1995, letteraddressed to “whom it may concern,”explaining noncommitally that heregretted “that comments exchanged in ajoking manner with Robert Tutman, on May19, 1995, were misinterpreted.”Vasilopulos also complained aboutattending the interpersonal skillsworkshop taught by Simmons, and CBSallowed Vasilopulos instead to attend analternative three-day sensitivity seminarfrom August 23 to August 25, 1995.Vasilopulos managed to leave the finalday of the program a few hours early. Despite CBS’s response, Tutman refusedto work because he felt “unsafe.” CBStold Tutman that his assignments could begiven by telephone and that he andVasilopulos could be given staggeredshifts to ensure that he would notencounter Vasilopulos at work.Nonetheless, CBS maintained that Tutmanhad to report for work, and when Tutmanremained intransigent, CBS placed Tutmanon a paid medical leave of absence. Byhis admission, Tutman was happy tocollect salary without working and didnot object. However, CBS’s employmentpolicy limited medical leave to sixmonths, and this edict had been strictlyenforced without exception during theprevious ten years. As the expiration ofTutman’s leave drew imminent, Tutmaninsisted on additional paid leave so thathe could “get back in shape” but failedto provide a note from his doctorverifying that extended leave wasmedically necessary. Indeed, Tutmanadmits that he had not sustained aserious illness, and his doctors saidthat there was no reason Tutman could notreturn to work. As a result, CBSconsidered Tutman “voluntarily resigned”when his six-month medical leave lapsedon November 22, 1995. Tutman filed a charge of discriminationwith the Illinois Department of HumanRights and the Equal EmploymentOpportunity Commission that day. On July19, 1996, Tutman filed suit against CBSin district court alleging retaliation,racially hostile work environment andconstructive discharge under Title VII ofthe Civil Rights Act. The district courtreferred the case to Magistrate JudgeMorton Denlow who recommended that thedistrict court grant summary judgment forCBS on all Tutman’s claims. On April 29,1999, the district court adopted themagistrate’s recommendations and grantedsummary judgment for CBS on all Tutman’sclaims. Tutman appeals summary judgmenton his hostile work environment andconstructive discharge claims. II. Analysis We review de novo the district court’sgrant of summary judgment, drawing ourown conclusions of law and fact from therecord before us. See Haefling v. UnitedParcel Serv., 169 F.3d 494, 497 (7th Cir.1999). Summary judgment is proper when”the pleadings, depositions, answers tointerrogatories, and admissions on file,together with the affidavits, if any,show that there is no genuine issue as toany material fact and that the movingparty is entitled to a judgment as amatter of law.” Fed. R. Civ. P. 56(c);see also Celotex Corp. v. Catrett, 477U.S. 317, 322-23 (1986). In determiningwhether a genuine issue of material factexists, we construe all facts in thelight most favorable to the non-movingparty and draw all reasonable andjustifiable inferences in favor of thatparty. See Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 255 (1986). A. Hostile Work Environment Tutman’s central claim before thedistrict court was that he suffered aracially hostile work environment, basedon the Vasilopulos incident, in violationof Title VII of the Civil Rights Act. Forworkplace conduct to constitute a hostilework environment actionable under TitleVII, the harassment “must be sufficientlysevere or pervasive ‘to alter theconditions of [the plaintiff's]employment and create an abusive environment.’”Meritor Sav. Bank, FSB v. Vinson, 477U.S. 57, 65 (1986) (citation omitted). However, an employer is not strictlyliable under Title VII for sexualharassment perpetrated by its employees.See Juarez v. Ameritech MobileCommunications, Inc., 957 F.2d 317, 320(7th Cir. 1992). In hostile workenvironment cases, the employer can avoidliability for its employees’ harassmentif it takes prompt and appropriatecorrective action reasonably likely toprevent the harassment from recurring.See Saxton v. American Tel. & TelegraphCo., 10 F.3d 526, 535 (7th Cir. 1993).The district court found that Tutman hadestablished a genuine issue of materialfact whether the Vasilopulos incidentcreated a hostile work environment, butgranted summary judgment for CBS becauseit found that CBS had taken prompt,effective remedial action in response tothe incident. We do not decide whether ahostile work environment existed becausethe question whether CBS took prompt andeffective remedial action is dispositivehere. CBS responded promptly to Tutman’sharassment complaint. CBS beganinvestigating Tutman’s allegation on theday of the incident, and CBS’s generalmanager interviewed both Tutman andVasilopulos on the next work day. Withintwo weeks, CBS had completed itsinvestigation and sanctioned Vasilopulosby issuing him a letter of reprimand,sending him to sensitivity training andcommanding him to apologize to Tutman.When Tutman would not return to work, CBSoffered to arrange his and Vasilopulos’swork schedules so that they would have nocontact with each other at work. Tutman argues that CBS’s response wasinsufficiently punitive given theseverity of Vasilopulos’s conduct on May19, 1995. However, the question is notwhether the punishment was proportionateto Vasilopulos’s offense but whether CBSresponded with appropriate remedialaction reasonably likely under thecircumstances to prevent the conduct fromrecurring. See Saxton, 10 F.3d at 535. Bypunishing Vasilopulos and promising tosegregate Vasilopulos from Tutman atwork, CBS made it distinctly improbablethat Vasilopulos would further harassTutman because the two men would havesuch limited contact, if any, with eachother at work. In Saxton, the employereffectively responded to the plaintiff’sreport of sexual harassment bytransferring the harasser to a differentdepartment because the transfer “servedto terminate all contact between [the harasser] and [the plaintiff] and bring adefinitive end to any harassment.”Saxton, 10 F.3d at 536. Similarly, inSavino v. C.P. Hall Co., 199 F.3d 925,933 (7th Cir. 1999), the employer’srelocation of the harasser to a differentfloor than the plaintiff, in response toher harassment complaint, constitutedeffective remedial action likely toprevent recurrence of harassment.Likewise here, separating Vasilopulos andTutman made it quite unlikely thatVasilopulos would harass Tutman again. Of course, if separating Vasilopulos andTutman at work would have disadvantagedTutman, CBS’s response would have beeninadequate because remedial action thatmakes the victim worse off is ineffectiveper se. See Guess v. Bethlehem SteelCorp., 913 F.2d 463, 465 (7th Cir. 1990).However, Tutman has not established thathe would have been injured by CBS’sproposed response. CBS has several sportsproducers other than Vasilopulos, soTutman would not have been precluded fromworking sports assignments. Tutman alsointroduced no evidence that rearranginghis work schedule would have forced himto relinquish his union stewardship. In addition to dissociating Vasilopulosfrom Tutman, CBS warned Vasilopulossternly that CBS would not toleratefurther harassment of co-workers. CBSreprimanded Vasilopulos, sent him tosensitivity training and ordered him toapologize to Tutman. Vasilopulosboorishly refused to attend the assignedsensitivity training seminar beforeacquiescing to a different program, fromwhich he arranged to exit early.Vasilopulos also resisted apologizing toTutman and ultimately penned anunconvincing, three-sentence missive onlyafter continued insistence by CBSmanagement. We sympathize with Tutman’sfrustration over Vasilopulos’srecalcitrance, but Title VII does notrequire that CBS punish Vasilopuloscommensurately to his conduct. The keyhere is that CBS responded promptly withremedial action reasonably calculated toend Vasilopulos’s harassment of Tutman bymaking clear to Vasilopulos that furtherharassment would result in terminationand credibly promising Tutman that hewould have no contact with Vasilopulos atwork. Alternatively, Tutman offers the novelclaim that CBS is liable under Title VIIfor its failure to prevent Vasilopulosfrom racially harassing him despite priorindications that made harassmentforeseeable. Namely, Tutman points toother instances of verbal abuse byVasilopulos–incidents of yelling at CBSemployees Howard Dorsey, Debra Segal andMorris Jones. Without deciding theviability of a Title VII claim forfailure to prevent foreseeable workplaceharassment, we find that CBS could not bereasonably expected to have preventedracial harassment here. Tutman allegesonly a single racial harassment incident–Vasilopulos allegedly called Jones a”nigger”–of which CBS might have beenaware, and that incident occurred in June1995, after Vasilopulos’s harassment ofTutman and Tutman’s departure from CBS.Under these facts, CBS was not forewarnedbefore May 19, 1995, that it should havedone more to prevent Vasilopulos fromengaging in racial harassment. B. Constructive Discharge To establish a claim for constructivedischarge under Title VII, a plaintiffmust prove that his working conditionswere so intolerable as a result ofunlawful discrimination that a reasonableperson would be forced into involuntaryresignation. See Vitug v. Multistate TaxComm’n, 88 F.3d 506, 517 (7th Cir. 1996).Working conditions for constructivedischarge must be even more egregiousthan the high standard for hostile workenvironment because “in the ‘ordinary’case, an employee is expected to remainemployed while seeking redress.” SeeDrake v. Minnesota Mining & Mfg. Co., 134F.3d 878, 886 (7th Cir. 1998). Tutman refused to return to work afterVasilopulos harassed him, but areasonable employee would not have foundwork conditions at CBS to be sointolerable that he would have to quithis job. In fact, Tutman did not claim atthe time that he could not return to workafter his medical leave expired. Instead,despite the absence of medicalcorroboration, Tutman requested extendedleave to get back into shape. Aside fromTutman’s bare assertions, there is littleto suggest that Tutman’s workingconditions would have been so objectivelyintolerable based on the lone incidentwith Vasilopulos. In cases findingconstructive discharge, the plaintiffssuffered from much more severe andsustained harassment. See, e.g., Sniderv. Consolidation Coal Co., 973 F.2d 555,558 (7th Cir. 1992); Taylor v. Western &S. Life Ins. Co., 966 F.2d 1188, 1191(7th Cir. 1992); Sanchez v. Denver Pub.Sch., 164 F.3d 527, 534 (10th Cir. 1998).In Taylor, we found constructivedischarge when the plaintiffs’ bossconstantly peppered the plaintiffs withracist comments, brandished a pistol andheld it to one plaintiff’s head. Taylor,966 F.2d at 1191. In Brooms v. Regal TubeCo., 881 F.2d 412, 417, 423 (7th Cir.1989), the plaintiff establishedconstructive discharge where “repeatedinstances of grossly offensive conductand commentary” culminated with anincident during which a co-worker showedthe plaintiff a racist pornographicphotograph, told her that she was hiredto perform the task depicted in thephotograph, grabbed the plaintiff andthreatened to kill her. A credible deaththreat that signals grave danger to theplaintiff’s bodily integrity, as inTaylor and Brooms, can constitute groundsfor finding constructive discharge, butthe harassment suffered by Tutman atVasilopulos’s hands falls well short ofthis standard. A reasonable person would not havefeared Vasilopulos as a result of hissingle oblique threat, even construingall reasonable inferences in favor ofTutman, such that he would feel forced toresign. See, e.g., Drake, 134 F.3d at887; Rabinovitz v. Pena, 89 F.3d 482, 489(7th Cir. 1996); Saxton, 10 F.3d at 537.In Simpson v. Borg-Warner Automotive,Inc., 196 F.3d 873, 877-78 (7th Cir.1999), a co-worker’s comment that”someone should take a dish and knock[the plaintiff] upside the head” did notestablish constructive discharge.Likewise, in Lindale v. Tokheim Corp.,145 F.3d 953, 956 (7th Cir. 1998),”boorish behavior” by co-workers wasinsufficient for constructive discharge.Vasilopulos’s harassment of Tutman wascloser to the abuse suffered in thesecases than to the vicious harassment inBrooms or Taylor. Even assuming thatVasilopulos’s harassment was so offensiveand severe to create a hostile workenvironment, his conduct was not so egregious as to compel Tutman’s resignationand establish constructive discharge. III. Conclusion For the foregoing reasons, we AFFIRM thegrant of summary judgment. :::FOOTNOTES:::
FN1 The parties agree that “bust a cap” and “pop acap” means “to shoot” in gang parlance, but CBSmaintains that Vasilopulos did not intend hisremark as a death threat. Vasilopulos and Tutmanappear to have been referring to the film Fear ofa Black Hat mistakenly as Niggers with Hats.
Tutman v. WBBM-TV, Inc., In the United States Court of Appeals For the Seventh Circuit No. 99-2366 Robert Tutman, Plaintiff-Appellant, v. WBBM-TV, Inc./CBS, Inc., Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 4424–Elaine E. Bucklo, Judge. Argued November 30, 1999–Decided April 20,2000 Before Manion, Kanne and Rovner, CircuitJudges.
