MANION, Circuit Judge.
Connie J. Orton-Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton-Bell's desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning. When the situation was brought to the superintendent's attention, he agreed and said that, as long as inmates were not involved, he was not concerned either. Immediately thereafter, the superintendent discovered that Orton-Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk) and both were terminated. Both separately appealed their terminations to the State Employees' Appeals Commission. The prison settled the Major's appeal and then called him to testify against Orton-Bell at her appeal. This tactic enabled the Major to keep all of his benefits, including his pension, to quickly get unemployment benefits, and to subsequently begin working at the prison as a contractor. Orton-Bell was not afforded
After earning her bachelor's degree in psychology from Ball State University in 2006, Connie J. Orton-Bell began working as a behavioral clinician with at-risk children. In 2007, she was hired as a Substance Abuse Counselor ("counselor") for a contractor at the Pendleton Correctional Facility, a maximum security prison in Pendleton, Indiana. In 2008, she was hired by the Indiana Department of Corrections ("DOC") and continued working as a counselor at Pendleton.
The official in charge of Pendleton at the time Orton-Bell was hired was Superintendent Brett Mize. According to Orton-Bell, he told her to come to department-head meetings, though it was not necessary, so that he could "look down the table at her." She claims she was not the sole object of his interest because "a good share of attractive women were there," though there was no apparent reason for them to be. Mize also said that, though other employees could wear jeans on Friday, she could not "because her ass looked so good that she would cause a riot." Without further specifics, Orton-Bell asserts that such sexual statements by Mize were commonplace. Mize was fired before the events that precipitated this suit took place.
However, according to Orton-Bell, the pervasive sexual comments that permeated the prison workplace extended beyond Superintendent Mize's admittedly outrageous behavior. Orton-Bell testified that similar sorts of comments were made by nearly all male employees and almost all the time. The workplace was "saturated" with sexual comments that constantly "bombarded" Orton-Bell and other female prison employees. "From the second you walk into that building, that is all you are hearing until the second you leave. And if you meet somebody on the parking lot, you are going to still hear it. So it's 100 percent of the time." For example, male employees would congregate around the pat-down area to watch female employees receive pat-downs on their way into the facility. Orton-Bell Dep. at 96. Pat-downs took place in full view of this crowd of onlookers; when Orton-Bell asked to be patted down in a private room, her request was denied. Id. at 94. Male employees would make sexual comments about female employees as they were patted down. Id. at 96-97. Women were patted down more thoroughly than men so that the male employees could watch. Id. at 92-93. Male employees frequently commented that they needed a cigarette after watching Orton-Bell get patted down because it was almost like having sex for them. Id. at 96. Orton-Bell described the experience of working in the prison as "an onslaught." Id. at 97.
Orton-Bell also describes an instance where she was asked to remove a sweater, which revealed her camisole.
But inappropriate conduct at the facility was not limited to verbal banter. Orton-Bell became involved in an affair with Major Joe Ditmer, a 25-year veteran of the DOC who was in charge of custody at Pendleton. Both of them were married to other people, but both were separated from their spouses at the time. Orton-Bell and Ditmer would have sex at her home, which was nearby, on their lunch breaks. They used their work email accounts to schedule their rendezvous (in addition to participating in extensive sexually explicit conversations about sexual positions, preferences, and games). The superintendent at the time, Alan Finnan, began to have suspicions about Orton-Bell and Ditmer having a relationship (Superintendent Mize had already been fired for having an affair with a staffer from the hospital infirmary). Finnan believed Orton-Bell and Ditmer's affair was a violation of the State Code of Ethics and the DOC's Standards of Conduct.
On Thursday, March 4, 2010, Finnan contacted Investigator Todd Tappy with Internal Affairs to open an investigation into Ditmer and Orton-Bell. Finnan also asked Captain Karl Downey about Orton-Bell and Ditmer, and he informed Finnan that Ditmer had admitted to having sexual intercourse and oral sex in his office. On Saturday, March 6, 2010, Tappy and another investigator, Michael Rains, reviewed Orton-Bell and Ditmer's work email accounts and discovered numerous sexually explicit emails.
But this was not the only ongoing investigation. Earlier (we have not been told the exact date), Orton-Bell and a counselor she supervised, Diane Ripberger, complained that it appeared people had been using their desks at night. Terry Silvers, yet another Internal Affairs Investigator, looked into those complaints, and into whether there had been any unauthorized access to their computers. His investigation revealed no unauthorized access to their computers, but he was able to determine that their desks were being used by night-shift employees for sexual liaisons. Orton-Bell recollected that she had cleaned mysterious stains off her desk in the past. Orton-Bell Dep. at 166. Understandably outraged, Orton-Bell asked Silvers what they ought to do next, to which he replied, "I suggest you wash off your desk every day." Orton-Bell Dep. at 125. Unsurprisingly not satisfied by that solution, Orton-Bell protested, but Silvers stated, "This is a max[imum] security prison, staff having sex is no concern to us. As long as it is not staff and offender we don't care." Id. After that, on Thursday, March 4, 2010, Orton-Bell discovered at a meeting that many other employees knew her office was used for sex, and that everyone thought it was quite funny. After learning that people at the facility were treating this disturbing use of her workspace as a joke, she complained to Superintendent Finnan and Investigator Silvers the next day. Silvers acknowledged that he knew it was a huge joke that her office
Returning to the investigation of Orton-Bell and Ditmer's affair, Orton-Bell and Ditmer were interviewed on Monday, March 8, 2010. Both Orton-Bell and Ditmer admitted to having a sexual relationship, that it had involved conversations using their work email accounts, and that they had engaged in sexual intercourse in Ditmer's office. Orton-Bell insists that she only admitted to this after she was told that hugging and kissing constituted sexual intercourse, and that was all she meant. (And because we are reviewing a grant of summary judgment to the state, we accept her statement as true.) Ditmer had no such qualifications, and admitted to actual sexual intercourse and oral sex in his office. The administration at Pendleton believed that this was "conduct that would interfere with the staff member's ability or fitness to effectively perform require[d] duties" in violation of the DOC Standards of Conduct. R. 32, Exs. A, M. The next day, Orton-Bell and Ditmer both received notice that they were suspended until April 7, 2010, and terminated effective April 8, 2010.
Both Ditmer and Orton-Bell appealed their terminations to the State Employees' Appeals Commission ("SEAC"). Ditmer's appeal ended with a "Final Order of Settlement and Dismissal." This enabled Ditmer to resign in good standing, keep all the benefits he had earned, including his pension, and to continue working at the prison as a contractor. Orton-Bell's appeal was not successful. It went to a hearing, where Ditmer testified against her, and the presiding officer determined that her termination was correct. She took the process "all the way to the end," but did not obtain a favorable resolution and ended up with nothing. Orton-Bell Dep. at 110, 133. As a result of the different characterizations of their terminations, Orton-Bell even had significant difficulty obtaining unemployment benefits. The unemployment office asked for more information regarding her termination, and when the DOC representative responded that Orton-Bell had "admitted inappropriate contact with [an] employee," her application for benefits was denied. Throughout her brief, Orton-Bell tells us that her unemployment benefits were "delayed," so apparently she was able to obtain them eventually.
Orton-Bell brought this suit, alleging sex discrimination, retaliation, and hostile work environment claims under Title VII against Indiana. Indiana moved for summary judgment, which the district court granted. The district court concluded that Orton-Bell had not offered any evidence that there was a similarly situated employee from whom she was treated differently — which defeated both her sexual discrimination and retaliation claims — and that she had not proven that the circumstances of her work environment were sufficiently severe or pervasive to rise to the level of a hostile work environment. Orton-Bell appeals.
We review the district court's summary judgment ruling de novo. Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir.2005). Summary judgment is warranted if the evidence, when viewed in the light most favorable to the non-moving party, presents "no genuine issue as to any material fact" such that "the moving party is
Orton-Bell's discrimination and retaliation claims may be supported by both "direct" and "indirect" evidence and may be analyzed under both a "direct" and an "indirect" method. Orton-Bell attacks this dual dichotomy, saying we should just look at the "totality of the evidence" and not "divid[e] the evidence into separate types of evidence and separate methods." Members of this court have bemoaned the "snarls and knots" of our Title VII jurisprudence. Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir.2012) (Wood, J., concurring).
"Title VII prohibits the creation of a hostile work environment." Vance v. Ball State Univ., ___ U.S. ___, 133 S.Ct. 2434, 2441, 186 L.Ed.2d 565 (2013). This doctrine finds its textual grounding in the language of the statute: "It shall be an unlawful employment practice for an employer... to discriminate against any individual with respect to [her] ... terms [or] conditions ... of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a). As such, to avoid summary judgment on a hostile work environment claim, a plaintiff must establish four elements: "(1) the work environment must have been both subjectively and objectively offensive; (2) her gender must have been the cause of the harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis for employer liability." Chaib v. Indiana, 744 F.3d 974, 985 (7th Cir.2014) (citing Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 383 (7th Cir.2012)).
Orton-Bell argues that she has offered sufficient evidence of these elements via testimony of the incident involving nightshift staff having sex on her desk and of an
Orton-Bell has shown that night-shift staff having sex on her desk was subjectively offensive, and we agree entirely that it is objectively offensive and severe. It was also pervasive because it was revealed to her that, for some time, she had been working at a desk un-sanitized after being used as a platform for sex by night-shift employees. And her supervisors' admitted deliberate indifference is enough for a jury to find the fourth element satisfied. See Vance v. Ball State Univ., ___ U.S. ___, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013) (noting that negligence is sufficient to satisfy this element). The difficulty is Orton-Bell's proving the second element, that her gender caused the harassment. She had to show that the night-shift employees had sex on her desk, and that the investigator told her to clean it up and the supervisor did not intervene because Orton-Bell was a woman.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). However, "[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted `discrimina[tion] ... because of ... sex.'" Id. at 81, 118 S.Ct. 998 (emphasis and modification in original); see also Holman v. Indiana, 211 F.3d 399, 402-03 (7th Cir.2000) (reiterating this point in Oncale's holding).
The notion that night-shift staff had sex on her desk because she was a woman is pure speculation. The only evidence of any motive held by the night-shift staff (who have not been identified) for having sex on her desk is that her office had curtains and was in a lockable suite near the infirmary, but accessible with the master key that a night-shift lieutenant would have. Orton-Bell Dep. at 167. Likewise, there is no evidence that Investigator Silvers's comment that she should clean her desk every morning, and Superintendent Finnan's comment that he did not care as long as offenders were not involved, was based on her being a woman.
Counsel for Orton-Bell makes a comment in her brief that reflects a fundamental misunderstanding of the law. Counsel states: "The State implies that the complaint of Orton-Bell about employees having sex on her desk and being told to wash down her desk every morning does not relate to the hostile work environment based on sex. It is hard to imagine how it would not relate to sex. The very word `sex' was the central part of the complaint." This is an equivocation. The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell's desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner. See, e.g., Shermer v. Illinois Dep't of Transp., 171 F.3d 475, 478 (7th Cir.1999) (holding that evidentiary void as to motive for making, and details of, offensive comments doomed Title VII claim). Accordingly, this incident, while egregious, does not support a hostile work environment claim.
The constant barrage of sexually charged comments, however, was clearly pervasive, offensive, and based on Orton-Bell's sex. We also conclude that there is enough evidence for a jury to find that it was severe, subjectively offensive, and that there is a basis for holding the state liable.
Superintendent Mize, the official formerly in charge of the entire prison, harassed her, ogled her, and ostensibly forbade her from wearing jeans based on his opinion that "her ass looked so good that it would cause a riot." Walking through the pat-down area, she says she was searched more thoroughly while men watched and made sexual comments. And she relays that these kind of comments were not rare, but were part of a never-ending barrage. We have found less egregious comments in less egregious contexts to be sufficiently severe. See, e.g., Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 786 (7th Cir.2007) (reversing summary judgment for employer; at least 18 sex-based comments made over ten months could show hostile work environment); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675-76 (7th Cir.1993) (affirming verdict for plaintiff; referring to plaintiff by a racial slur between five and ten times during his employment created actionable hostile work environment). And while "[t]he occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers would be neither pervasive nor offensive enough to be actionable," Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 977 (7th Cir.2004), these comments were perpetual and directed at Orton-Bell.
With regard to subjective offensiveness, Orton-Bell testified that this environment was oppressive and interfered with her ability to do her job. Regardless, the district court held that Orton-Bell had not shown that the environment was subjectively offensive. The record does reveal an instance where, in an email conversation with a co-worker named Bruce Helming, she participated in vulgar banter. However, while that may lead a jury to conclude that she was not subjectively offended by the environment, one private conversation via email is not enough for us to conclude, as a matter of law, that she was not subjectively offended by the many
Finally, we address whether there is a basis for employer liability.
Passananti v. Cook Cnty., 689 F.3d 655, 670 (7th Cir.2012). Orton-Bell complained to Assistant Superintendent Kathy Griffin about the constant sexual comments at the facility. Orton-Bell Dep. at 91. Orton-Bell reported directly to Griffin, id. at 52, so her complaints complied with the state's Sexual Harassment Policy, which allows employees to report complaints "to supervisors or agency heads." Defendants' Statement of Undisputed Material Facts at p. 4 (¶ 20). Orton-Bell's evidence shows that no corrections were made. She made repeated complaints about the constant sexual comments, including complaints to the right individuals, but nothing changed. This is enough for a jury to find this element satisfied (and the defense inapplicable).
Accordingly, because Orton-Bell has offered enough evidence of every element of her hostile work environment claim for a jury to find in her favor, it was error to grant summary judgment on that claim.
Orton-Bell also argues that her termination and the different treatment she received in relation to her termination were in retaliation for protected activity complaining of sex discrimination.
Title VII forbids an employer to "discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2. Because we conclude that Orton-Bell has presented enough evidence to survive summary judgment under the "indirect" method, we do not address the direct method.
To establish a prima facie case, Orton-Bell must establish that "(1) she is a member of a protected class, (2) her job performance met [her employer's] legitimate expectations, (3) she suffered an adverse employment action, and (4) another similarly situated individual who was not in the protected class was treated more favorably than the plaintiff." Burks v. Wis. Dep't of Transp., 464 F.3d 744, 750-51 (7th Cir.2006). Where an employee who failed to meet expectations claims that she has been treated differently from a male employee who similarly failed to meet expectations, the second element merges into the fourth. See, e.g., Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (merging the elements "[w]hen a plaintiff produces evidence sufficient to raise an inference that an employer applied its legitimate employment expectations in a disparate manner"). Here, Orton-Bell is a woman and was terminated for misconduct, so the controversy is centered on the fourth element.
In general, a plaintiff who believes another individual is "similarly situated" must at least show that this "comparator" (1) "dealt with the same supervisor," (2) "w[as] subject to the same standards," and (3) "engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish [his] conduct or the employer's treatment of [him]." Coleman, 667 F.3d at 847 (citing Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir.2008)). Although in different branches of the chain of command, Orton-Bell and Ditmer were both fired by the same ultimate supervisor (Finnan) for the same conduct in violation of the same standards.
The only question is whether there are "differentiating or mitigating circumstances as would distinguish" the DOC's treatment of Orton-Bell. Orton-Bell and Ditmer are primarily differentiated by the fact that she was a counselor of two years and he was a twenty-five-year veteran of the DOC's Custody branch. But this cuts both ways. Maybe the DOC was generous with Ditmer because of his long career. But that also put him in a position to know better. Thus his offense was also worse. Ditmer violated the DOC's standards of conduct while in the sensitive leadership position of Major in Charge of Custody (a para-military leadership role); Orton-Bell was a substance abuse counselor. If there is any dissimilarity it is that the affair compromised Ditmer's ability to perform his job far more than it compromised Orton-Bell's ability to perform hers. And unlike Orton-Bell, this was not Ditmer's first work affair. Ripberger Aff. at 2; Orton-Bell Dep. at 188-89. Accordingly, because judging comparators is a commonsense inquiry, and Orton-Bell and Ditmer were fired by the same supervisor for the same conduct that violated the same standard — and both appealed the termination — we conclude that for the purposes of this claim, Ditmer is similarly situated.
Because there is evidence that Orton-Bell was similarly situated to Ditmer, but treated less favorably, it was error to grant summary judgment on her discrimination claim. Further, because her supervisors failed to remedy the severely sexualized climate at the prison, it was likewise error to grant summary judgement on her hostile work environment claim. However, because she has failed to show that her complaint about night-shift employees having sex on her desk was rooted in her protected status, it was not a protected complaint, so her retaliation claim fails. Accordingly, we AFFIRM IN PART and REVERSE IN PART and REMAND for further proceedings consistent with this opinion.