Manion, Circuit Judge. Karen Savino worked underthe supervision of William Popper as a part-timeclerk for the C.P. Hall Company. In this suit,she alleges that Popper sexually harassed her andthat he and C.P. Hall retaliated against her forcomplaining about the harassment. The districtcourt granted summary judgment for C.P. Hall onSavino’s retaliation claim, but permitted thesexual harassment claim to proceed to trial. Thejury found for C.P. Hall and awarded Savinonothing. She appeals, arguing that the verdictwas not supported by the evidence and that thedistrict court erred in instructing the jury onthe Faragher/Ellerth affirmative defense. Findingno error, we affirm. I. BACKGROUND On April 1, 1995, Savino began working for C.P.Hall as a part-time maintenance clerk at itsplant in Bedford Park, Illinois. C.P. Hallmanufactures and distributes various ester andpolyester chemical products. Savino worked twentyhours per week and her duties included fillingout work and purchase orders, checking invoices,maintaining expense reports, and performing otheradministrative paperwork. She was paid hourly andreceived no benefits when first hired. WilliamPopper was the plant engineer for the maintenancedepartment and was Savino’s supervisor. Theirrespective desks were in the same office and wereadjacent to each other. Shortly after Savinobegan working for C.P. Hall, Popper purportedlyharassed her by making crude remarks aboutgenitalia, breasts, and sex. He stared at herwhile smiling and occasionally followed heraround the workplace. He allegedly attempted togive her neck rubs, pretended to pour coffee downher shirt, read a pornographic magazine in herpresence, twice called her at home to invite herto baseball games, and once told her that hedrove by her house on the way to a meeting. Onone occasion, after Savino declined Popper’sdinner invitations, he allegedly held up his handso that Savino could not exit the room. After Savino rebuffed Popper’s advances, hepurportedly tried to discredit her work, rippedup her time card, made snide remarks, and didn’tallow her to turn on the air conditioner. Savinoalso alleged that Popper closely monitored herwork breaks to ensure that she did not exceed thetime allotted. On July 26, 1995, Savino finallycomplained to Popper’s supervisor, Leslie Mullin.After listening to Savino and taking notes of hercomplaints, Mullin contacted the corporatedirector of human resources at C.P. Hall’sChicago office. Mullin then examined with Savinoa copy of the company’s sexual harassment policyand stated that, if her allegations were true,Popper’s actions were inconsistent with theconduct required of employees under the policy.Within a week of Savino’s complaint, James Roachand Cindy Green of the human resources departmentcame to Bedford Park to investigate Savino’sallegations. Roach and Green met with Savino,listened to her story, and instructed her that ifPopper continued to bother her she shouldpromptly inform them so that they could furtheraddress the situation. Savino agreed that a sternwarning would solve the problem and that shecould comfortably continue working for Popper.
[FOOTNOTE 1] Mullin and Roach then confronted Popper with theaccusations. Popper acted surprised and deniedthat he had harassed Savino or done anythingimproper. Importantly, C.P. Hall was unable tocorroborate Savino’s account of the events.Nevertheless, Mullin reprimanded Popper,instructed him to act professionally aroundSavino, warned him about doing anything thatmight appear retaliatory, and told him that anyfurther problems could result in his termination.Mullin testified that he thought a reprimand wassufficient punishment because Popper had anexemplary work record, had never been accused ofsexual harassment before, and because Savino saidthat “she did not want Bill to get in anytrouble.” Roach testified that he considered thereprimand appropriate because Savino’s chargescould not be substantiated. Still, to prevent anyfurther allegations, within a week of hercomplaints C.P. Hall also moved Savino away fromPopper to an office cubicle in the accountingdepartment on another floor. In October 1995, C.P. Hall increased Savino’shours by five per week (to twenty-five), andcontinued to pay her $8 per hour.
[FOOTNOTE 2]Thisincrease in hours enabled her to receive fullbenefits, which entailed medical, dental, andlife insurance, long- and short-term disability,and the ability to participate in the company’s401(k) plan. Award of these benefits cost C.P.Hall an additional $3.50 per hour. Later, whenSavino inquired about getting a pay increase,Green told her that C.P. Hall provided thesebenefits to part-time workers in lieu of raises.Naturally, Savino still hoped to get more moneyand a full-time position with the company. Mullin testified at trial that he was unaware ofSavino having further problems with Popper untilabout April 9, 1996, when she complained thatanother employee overheard Popper, aroundDecember 1995, refer to her as a “bitch” or”whore,” although Savino herself never heardPopper make these comments. She also alleged thatPopper had stared at her, refused to give hergift certificates (worth between $10 and $25)that the company periodically gave employees, andunjustifiably criticized her work. Mullin againcalled human resources personnel and within aweek discussed Savino’s latest complaint withPopper. Roach and Green also made anotherappearance at the plant and conducted a fullinvestigation. Around this time, Savino came toMullin’s office asking about an anniversary payraise. Mullin informed Savino that her receipt offull benefits was her raise and that no otherraise would be immediately forthcoming. That sameday, April 25, Savino filed a charge with theIllinois Department of Human Rights, allegingsexual harassment and retaliation. On April 26,1996, Roach again traveled to Bedford Park todiscuss the incidents with Savino, but sherefused to speak with him. Around May 10, 1996,when Popper admitted to Roach that he once used aderogatory term in reference to Savino (but notin her presence), C.P. Hall disciplined him bysuspending him without pay for one week, whichpenalized him almost $2,000. He was alsoinstructed to keep his contact with Savino to aminimum and to continue to communicate with heronly through interoffice mail. On June 13, 1996, Savino brought this suit underTitle VII of the Civil Rights Act of 1964, 42U.S.C. sec. 2000(e)-2(a)(1),
[FOOTNOTE 3]alleging quid proquo and hostile environment sexual harassment andretaliation.
[FOOTNOTE 4]The retaliation complaint stemmedfrom C.P. Hall’s failure to give Savinotwopositions in the accounting department and araise. C.P. Hall moved for summary judgment onall claims. Construing the facts in the lightmost favorable to Savino, the district courtfound that Savino merited a trial on her sexualharassment claim, but that summary judgment wasproper on her retaliation claim.
[FOOTNOTE 5]See Savino v.The C.P. Hall Co., 988 F. Supp. 1171 (N.D.Ill.1997). The trial commenced on September 21, 1998. Thejury heard testimony from Savino, Popper, Roach,Mullin, Green, and some co-employees. Savinorecounted her allegations that Popper harassedher, and one employee confirmed that they heardPopper refer to Savino as a “bitch” and a “whore”(although not in Savino’s presence). When Poppertook the stand, he denied that he had everharassed Savino, but admitted that he oncereferred to her as a whore. He also discussedSavino’s allegations and gave a significantlydifferent version of the events than Savino. Forexample, with respect to the telephone calls toSavino, he recalled that one of the calls was toinform Savino that she forgot her check at theoffice, and the other was to tell her that thebaseball game to which she was going to take herdaughter was canceled due to rain. The testimonyfrom Roach and Mullin indicated that Savino’scharges may have been motivated by a desire toget a transfer to the accounting department andto obtain a raise and a better position. Afterhearing this testimony, the jury found for C.P.Hall. Savino then moved to set aside the verdict,for judgment as a matter of law as to liability,or in the alternative for a new trial onliability and damages. The district court deniedthese motions and let the verdict stand. Savinoappeals. II. A. Faragher/Ellerth Jury Instruction 1. Did the evidence merit giving the instruction? Savino first argues that the district courterred in instructing the jury concerning anemployer’s affirmative defense under Faragher andEllerth to a claim of hostile environment sexualharassment perpetrated by a supervisor. Althoughshe proposed a version of this instructionherself, she nevertheless argues that theevidence adduced at trial did not warrant theinstruction. A party who wants to challenge the propriety ofsubmitting a given claim or defense to the juryis obliged to make a motion under Fed. R. Civ. P.50(a) at some time prior to the submission of thecase to the jury. Failure to make such a motionwaives the sufficiency of the evidence point onappeal. See EEOC v. AIC Security, Ltd., 55 F.3d1276, 1286 (7th Cir. 1995). If a party couldavoid the necessity of a Rule 50 motion simply byattacking the judge’s decision to give certainjury instructions, the clarity achieved by theRule 50 process would be compromised and littlewould be left of the general rule.
[FOOTNOTE 6]Savino haseffectively argued for a regime under which aRule 50 motion seeking partial judgment as amatter of law on the affirmative defense createdby Ellerth and Faragher should be equated to aRule 51 objection to the giving or failure togive an instruction. We decline to take thatstep, and instead find that Savino has waived hersufficiency argument in this case. But even if Savino’s decision to forego a Rule50 motion did not control this case, we could notsay that the district court erred in instructingthe jury as it did. In this case, the proprietyof the instruction turns on the elements C.P.Hall had to establish to support theFaragher/Ellerth affirmative defense. InBurlington Industries, Inc. v. Ellerth andFaragher v. City of Boca Raton, the Supreme Courtestablished that under Title VII, employers arevicariously liable for hostile environment sexualharassment perpetrated by the victim’ssupervisor. 118 S. Ct. 2257, 2270 (1998); 118 S.Ct. 2275, 2292-93 (1998).
[FOOTNOTE 7]Where the plaintiffsuffered no tangible employment action, however,the employer is entitled to establish by apreponderance of the evidence an affirmativedefense consisting of two elements: “(a) that theemployer exercised reasonable care to prevent andcorrect promptly any sexually harassing behavior,and (b) that the plaintiff employee unreasonablyfailed to take advantage of any preventive orcorrective opportunities provided by the employeror to avoid harm otherwise.” Ellerth, 118 S. Ct.at 2270; Faragher, 118 S. Ct. at 2293. Inexplaining this defense, the Supreme Courtstated: While proof that an employer had promulgated ananti-harassment policy with complaint proceduresis not necessary in every instance as a matter oflaw, the need for a stated policy suitable to theemployment circumstances may appropriately beaddressed in any case when litigating the firstelement of the defense. And while proof that anemployee failed to fulfill the correspondingobligation of reasonable care to avoid harm isnot limited to showing any unreasonable failureto use any complaint procedure provided by theemployer, a demonstration of such failure willnormally suffice to satisfy the employer’s burdenunder the second element of the defense. Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct.at 2293. Thus, to merit an instruction on theFaragher/Ellerth affirmative defense the employermust show that: (1) the plaintiff endured notangible employment action; (2) there is someevidence that the employer reasonably attemptedto correct and prevent sexual harassment; and (3)there is some evidence that the employeeunreasonably failed to utilize the avenuespresented to prevent or correct the harassment. In the present case, C.P. Hall satisfied thefirst criterion, as Savino suffered no tangibleemployment action.
[FOOTNOTE 8]As to her employer’sreasonable efforts to prevent or correctharassment, the evidence indicated that C.P. Hallhad a sexual harassment policy posted, and thispolicy included instructions for reportingharassment. Moreover, Savino’s own testimonyindicated that when she finally made hercomplaint after several months of allegedharassment, C.P. Hall promptly investigated hercharges and sought to remedy the problem, firstby reprimanding Popper and relocating her awayfrom him on another floor, and later bysuspending him. This is sufficient evidence tosatisfy the second criterion. With respect to the third criterion, theemployee’s failure to take advantage ofopportunities to prevent or correct theharassment, Savino’s own testimony indicated thatshe didn’t complain about the harassment toanyone other than Popper for around four months.When she did report it, she did not tell heremployer about incidents that had apparentlyalready occurred. She first raised them muchlater during her deposition. Furthermore, afterher first complaint, she was instructed to callGreen, Mullin, or Roach immediately in the eventthat Popper engaged in similar activity. ButSavino made no complaints until July 1996, andeven then her main complaint was about astatement overheard by another employee inDecember 1995. This evidence was sufficient tosatisfy the third criterion. As we understand her, Savino is also arguingthat the jury should not have been given theEllerth/Faragher affirmative defense instructionbecause (a) actionable harassment existed afterher July 1995 complaint, and (b) the existence ofsuch harassment precludes an employer as a matterof law from satisfying its burden on the defense.That argument fails here because it is not evenclear that actionable harassment continued afterthe July 1995 complaint. As some courts havenoted, the sporadic use of abusive language,gender-related jokes, and occasional teasing arefairly commonplace in some employment settingsand “do not amount to actionable harassment.”Breeding v. Arthur J. Gallagher & Co., 164 F.3d1151, 1159 (8th Cir. 1999); see Faragher, 118 S.Ct. at 2283-84. Thus, the fact that a plaintiffmerely heard through the grapevine that hersupervisor once or twice referred to her inderogatory terms is not actionable sexualharassment. See Faragher, 118 S. Ct. at 2283(offhand comments and isolated incidents do notrise to the level of actionable harassment unlessthey are particularly egregious); see also Cowanv. Prudential Ins. Co. of Am., 141 F.3d 751, 758(7th Cir. 1998) (the impact of second-handharassment is not as great as harassment directedat the plaintiff). Assuming also that Popperstared at Savino and once failed to give her a$25 gift certificate, Savino’s testimony at trialdemonstrated that these occurrences were notsufficiently severe or pervasive as to create ahostile environment, especially since Popper hadlittle contact with Savino after she was moved toanother office. See Filipovic v. K & R Express,Sys., Inc., 176 F.3d 390, 398 (7th Cir. 1998)(Title VII affords protection only againstconduct which is sufficiently severe or pervasivethat a reasonable person would find it abusive). But even if Savino were subjected to harassmentafter her July 1995 complaint, that fact alonedoes not preclude the defendant from availingitself of the Faragher/Ellerth affirmativedefense. Title VII does not require that theemployer’s responses to a plaintiff’s complaintsof supervisory sexual harassment successfullyprevented subsequent harassment, only that theemployer’s actions were reasonably likely tocheck future harassment. Parkins, 163 F.3d at1036; see Shaw v. AutoZone, Inc., 180 F.3d 806,812 (7th Cir. 1999). Thus, based on an employer’sknowledge at the time it implemented a correctivemeasure, the employer’s response to complaints ofharassment “is adequate if it is reasonablycalculated to end the harassment.” Jackson v.Quanex Corp., 191 F.3d 647 (6th Cir. 1999);Caridad v. Metro-North Commuter R.R., 191 F.3d283, 295 (2d Cir. 1999) (“An employer need notprove success in preventing harassing behavior inorder to demonstrate that it exercised reasonablecare in preventing and correcting sexuallyharassing conduct.”); Scusa v. Nestle U.S.A. Co.,Inc., 181 F.3d 958, 967 (8th Cir. 1999) (“Anemployer is not liable if it takes promptremedial action which is reasonably calculated toend the harassment once the employer knew orshould have know about the harassment.”). In thepresent case, C.P. Hall’s preventive measuresmentioned above were reasonably calculated toforeclose subsequent harassment. It was,therefore, entitled to a jury instruction on theFaragher/Ellerth affirmative defense, regardlessof whether the remedial measures ultimatelyproved unsuccessful. 2. Whether the Faragher/Ellerth juryinstruction was a correct statement ofthe law. Savino next argues that the jury instructionconcerning the Faragher/Ellerth affirmativedefense did not accurately state the law, andthat her instruction on the defense should havebeen given. We review jury instructions de novo to determinewhether they provide fair and accurate summariesof the law. United States v. Tingle, 183 F.3d719, 729 (7th Cir. 1999). Recognizing that theformulation of jury instructions is not an exactscience, the district court is given substantialdiscretion with respect to the precise wording ofjury instructions, so long as the instructioncompletely and correctly states the law. Id.Notably, the district court is under noobligation to adopt the wording of any of thelitigants’ proposed instructions. Russell v.Nat’l R.R. Passenger Corp., 189 F.3d 590, 594(7th Cir. 1999). Reversal is warranted on thispoint only if an instruction misstates the lawand this error misguides the jury so much thatone party is prejudiced. Wichmann v. Board ofTrustees of S. Ill. Univ., 180 F.3d 791, 804 (7thCir. 1999). The instruction at issue here states: If you find that the plaintiff, Karen Savino,has established her claim of sexual harassment,then you may consider whether defendant, The C.P.Hall Company, has established an affirmativedefense to plaintiff’s established case of sexualharassment. The burden of proof is on the employer, The C.P.Hall Company, to prove this affirmative defenseby a preponderance of the evidence in the case byestablishing the following elements: First: that the C.P. Hall Company exercisedreasonable care to prevent and correct promptlyany sexually harassing behavior; and Second: that the plaintiff, Ms. Savino,unreasonably failed to take advantage of anypreventive or corrective opportunities providedby the employer to prevent harm otherwise. If you find that the plaintiff has establishedher claim of sexual harassment by a preponderanceof the evidence, and that the defendant has notestablished its affirmative defense by apreponderance of the evidence, then your verdictshould be for the plaintiff. On the other hand, if you find that thedefendant has established its affirmative defenseby a preponderance of the evidence, you mayeliminate the defendant’s liability or,alternatively, reduce the plaintiff’s damagesfrom the date you find the affirmative defensewas established by the defendant. [Tr. Trans. Vol. 4, pp. 42-43] Savino’s complaint with this instruction centerson its second prong, which she correctlyidentifies as incorporating the “avoidableconsequences” doctrine. She argues that underthis doctrine a defendant may have its damagesreduced, but cannot receive absolution fromliability. The avoidable consequences doctrine is aprinciple of tort law that encourages tortvictims to act reasonably to reduce thedeleterious effects of the tort, since the victimis usually in the best position to takeameliorative measures. The doctrine (sometimescalled the duty to mitigate damages) does this bydenying recovery for the losses which are shownto have resulted from the plaintiff’s failure touse reasonable efforts to avoid or prevent harm.Bank One, Tex., N.A. v. Taylor, 970 F.2d 16, 29(5th Cir. 1992); see Outboard Marine Corp. v.Babcock Indus., Inc., 106 F.3d 182, 184 (7th Cir.1997) (noting that the avoidable consequencesdoctrine corresponds to mitigation of damages incontract law). For example, where a tort victimsuffers bodily injuries but fails to seektreatment for these injuries, he may recover onlyfor the harm proximately caused by thetortfeasor, and not the aggravation of theinitial injuries engendered by his failure toobtain medical attention. See Lawson v.Trowbridge, 153 F.3d 368, 377 (7th Cir. 1998). As applied in employment discrimination cases,the Supreme Court has specifically stated that aplaintiff’s reticence could be sufficientlyserious as to completely preclude an employer’sliability, regardless of whether the avoidableconsequences doctrine operates differently intort law. “If the victim could have avoided harm,no liability should be found against the employerwho had taken reasonable care, and if damagescould reasonably have been mitigated no awardagainst a liable employer should reward aplaintiff for what her own efforts could haveavoided.” Faragher, 118 S. Ct. at 2292.Accordingly, unreasonable foot-dragging willresult in at least a partial reduction ofdamages, and may completely foreclose liability.Savino’s argument to the contrary is withoutmerit. B. Sufficiency of the Evidence Finally, Savino argues that the jury’s verdictwas not supported by the evidence adduced attrial. A new trial based on insufficient evidenceshould be granted only if the verdict is againstthe manifest weight of the evidence. Lowe v.Consolidated Freightways of Del., Inc., 177 F.3d640, 641 (7th Cir. 1999). We review the districtcourt’s application of this test deferentially.Id. We will reverse a district court’s denial ofa motion for a new trial only upon a showing thatthe court abused its discretion. Id. In assessingthe sufficiency of the evidence we will notreweigh the evidence or judge the credibility ofwitnesses. If there is a reasonable basis in therecord for the jury’s verdict, it must stand.Dallis v. Don Cunningham & Assoc., 11 F.3d 713,715 (7th Cir. 1993). At trial, the jury heard Popper’s testimony andhis denials that he ever harassed Savino. Whileit also heard Savino’s accusations, the jury wasfree to believe Popper over Savino, and thusthere was sufficient evidence upon which it couldhave based its decision. Notably, the jury couldhave relied on more than just Popper’s denials tosupport the verdict. It heard Savino admit thather complaints of unjustified criticism of herwork may not have been completely accurate, asshe sometimes failed to carry out her assignedduties. As to her allegations that Popper droveby her house, she acknowledged that she never sawhim drive by her house, but only that Popper oncementioned to her that he passed by on the way toa meeting. Similarly, although she had accusedPopper of following her outside of work, Savinoconceded that neither she nor anyone else hadever observed him following her. The jury also heard that Savino’s behaviortoward Popper was unusual if he were indeedharassing her. For example, one time Savinocomplained to Popper that some workmen weresexually harassing her by whistling and makingcat-calls as she walked through the plant. Popperimmediately reprimanded the workers, made one ofthem apologize, and Savino never complained aboutthem again. Additionally, despite her complaints,she told Roach and Mullin that she was willing tocontinue working under Popper’s supervision.Other testimony indicated that without beingasked, she occasionally would bring in coffee andbaked goods for Popper. A jury could decide thatsuch activity is not typical of a victim ofsexual harassment. There were also some indications that Savino’scomplaints might have been part of a scheme toextort higher wages or a better position fromC.P. Hall. Indeed, around the time Savino wascomplaining of the harassment, she also inquiredwhether she was going to get a wage increase thatmonth. She also made clear to Mullin that she didnot want Popper to be disciplined, but onlyverbally reprimanded. This theory also findssupport in Savino’s reticence in accusing Popperand the fact that she filed a charge with theIllinois Department of Human rights the same dayMullin refused to give her a raise. WhileSavino’s testimony at trial certainly varied fromPopper’s and that of other witnesses, a reviewingcourt will not second-guess the credibility ofthe witnesses. The jury could reasonably havebelieved that Savino significantly embellishedher story in order to pressure the company togrant her favorable job actions. Although thejury could have construed the evidencedifferently, its conclusion was neverthelessplausible given the evidence presented. But even if we go one step further and assumethat the jury believed Savino was harassed, itcould have reasonably based its decision on theFaragher/Ellerth affirmative defense. As toevidence supporting the first element of thedefense, the jury heard that C.P. Hall had asexual harassment policy, and that it was postedaround the plant. The record also shows that whenSavino finally complained in July 1995, withinone week Mullin, Roach, and Green thoroughlyinvestigated Savino’s complaint and undertookpreventive measures. Not only was Popperreprimanded and threatened with termination, butSavino was also removed from the “zone ofdanger,” so to speak. Furthermore, Savino’s owntestimony indicated that these measures greatlyreduced Popper’s contact with her. Even fullycrediting her conclusory assertions that she washarassed even after her July 1995 complaint(which we do only for the sake of the argument),these remedies effectively curbed the harassmentand made it much more difficult for Popper tooppress Savino without being observed by others. As to the second element of the affirmativedefense, the jury heard that Savino waitedseveral months before initially reporting theharassment. Furthermore, C.P. Hall showed thateven when Savino finally complained in July 1995,she did not inform her superiors about acts ofharassment which she later alleged in this suit.For example, Roach testified that until herdeposition in this case, Savino never informedthe company of the incident when Popper allegedlyblocked her exit from her office. Savino’s owntestimony did not conflict with this view, as sheadmitted that she may not have earlier allegedthat Popper blocked the door or committed some ofthe other more egregious conduct she laterdescribed. Def. Counsel: You did not tell Ms. Green thatMr. Popper blocked your way out of the office,did you? Savin To be honest, I don’t recall if I did ornot. I’m not sure exactly all what I told CindyGreen. Like I said, there were so many things Iwas telling her. Def. Counsel: And you did not tell Ms. Green orMr. Mullin that Mr. Popper allegedly rubbed yourneck, correct? Savin I might have. I’m not sure what CindyGreen–like I said, Cindy Green I told a lot ofit. I’m not sure if I did or not. [Tr. Trans. Vol. 2, pp. 66-67] And despiteSavino’s contention that the harassment neverstopped even after she was moved away fromPopper, she delayed reporting it for many months. Thus, considering all of this testimony, thejury had support for its verdict under severaldifferent theories. Perhaps it believed thatSavino’s testimony was false and that she made upthe whole story. Alternatively, the jury may havebelieved some of her testimony, but thought thatPopper’s conduct did not rise to the level ofactionable harassment or did not merit an awardof damages. Finally, it may have thought thatSavino was initially harassed, but that theFaragher/Ellerth affirmative defense wasapplicable so as to bar any recovery. It isreadily apparent that the evidence supported anyof these conclusions, and that throwing out thejury’s verdict would require us to impermissiblysecond-guess the jury.
[FOOTNOTE 9]Accordingly, thedistrict court did not abuse its discretion indeclining to grant a new trial. For all of thesereasons, we affirm. :::FOOTNOTES:::
FN1Savino testified at trial that while she toldRoach she wouldn’t mind continuing under Popper’ssupervision, she really didn’t want to do so.
FN2Her pay was increased to $8.50 per hour in Aprilor May 1996.
FN3Title VII prohibits employers from discriminatingagainst employees on the basis of sex withrespect to compensation, terms, conditions, orprivileges of employment. This prohibitionextends to conduct which is so severe orpervasive as to alter the terms and conditions ofemployment and which creates an abusive workingenvironment. Meritor Sav. Bank, FSB v. Vinson,477 U.S. 57, 67 (1986).
FN4Savino continued her employment with C.P. Halleven after filing her suit. She remained with thecompany until November 29, 1996, when shevoluntarily left to take a position elsewhere.
FN5Savino mentions her retaliation claim in the”Issues Presented for Review” section of herappellate brief. However, she does not addressthis issue in the body of her brief. Therefore,any argument on this claim is waived. See UnitedStates v. Watson, 189 F.3d 496, 500 (7th Cir.1999).
FN6Savino’s counsel was asked at oral argument whyhe did not move for a judgment as a matter of lawas to the affirmative defense, for if Savinoprevailed on this motion, the jury would neverhave been instructed on this defense. Counselresponded that in his experience “it is sort of awaste for a plaintiff to make a motion for ajudgment as a matter of law, quite frankly.”
FN7There is no question that Popper was Savino’ssupervisor, as he hired her and apparently hadthe power to terminate her position. See Parkinsv. Civil Constructors of Ill., Inc., 163 F.3d1027, 1034 (7th Cir. 1998) (a supervisor is onewho can hire, fire, demote, promote, transfer, ordiscipline the plaintiff).
[back] FN8Savino obliquely argues that her transfer toanother office away from Popper was a tangibleemployment action. It wasn’t. A tangibleemployment action has to cause a substantialdetriment to the plaintiff’s employmentrelationship. As the Supreme Court stated: “Atangible employment action constitutes asignificant change in employment status, such ashiring, firing, failing to promote, reassignmentwith significantly different responsibilities, ora decision causing a significant change inbenefits.” Ellerth, 118 S. Ct. at 2268 (emphasisadded). Thus, a tangible employment action isakin to an adverse employment action, as courtshave used the term. See Silk v. City of Chicago,194 F.3d 788, ___ (7th Cir. 1999); Durham LifeIns. Co. v. Evans, 166 F.3d 139, 154 (3d Cir.1999). Savino did not suffer a tangibleemployment decision because reassignment to acomparable office is neither sufficiently adversenor significant. See Halloway v. MilwaukeeCounty, 180 F.3d 820, 826 (7th Cir. 1999); seealso Knox v. State of Indiana, 93 F.3d 1327, 1334(7th Cir. 1996) (moving an employee “from aspacious, brightly lit office to a dingy closet”could constitute an adverse employment action);Collins v. State of Illinois, 830 F.3d 692, 704(7th Cir. 1987) (holding that the plaintiffsuffered an adverse employment action when shewas deprived of her office, telephone, businesscards, and title).
FN9Savino also argues that the jury may havediscounted Popper’s behavior due to its exposureto media coverage of the Clinton-Lewinsky affair.Because this argument is frivolous, we decline toaddress it.
Karen Savino, Plaintiff-Appellant, v.
C.P. Hall Company, Defendants-Appellee. In the United States Court of Appeals For the Seventh Circuit No. 98-4257 Appeal from the United States District Courtfor the Northern District of Illinois, Eastern Division.No. 96 C 3582–Richard Mills, Judge. Argued September 10, 1999–Decided December 14, 1999 Before Flaum, Manion, and Diane P. Wood, CircuitJudges.
