The full case caption appears at the
end of this opinion. Posner, Chief Judge. The plaintiff appeals from the dismissal of her suit, on motion for summaryjudgment, for sexual harassment, and forretaliation for complaining about it, all inviolation of Title VII. She was a secretary at alarge Chicago law firm and claims that in 1994 apartner named Woodford for whom she was workingharassed her on account of her gender. She basesthe claim on five incidents, which for purposesof this appeal we assume happened exactly as sheclaims they did, spread over the last half of theyear: 1. Woodford asked to see a “Frederick’s ofHollywood” catalog that was on the plaintiff’sdesk and asked her whether she had ever boughtanything from Frederick’s. When she said yes,Woodford responded: “Well, can I see somepictures of you in some of the outfits that youhave bought from Frederick’s of Hollywood?” Shesaid she had bought only shoes from Frederick’s,and so there were no pictures of her wearingoutfits from that store. He said, “Well, when youget some pictures can I see them?” 2. He said her shoes were “unusual” and that he”prefer[red] to see you in shoes with your toesout as opposed to those type of shoes.” 3. He asked her “What’s the color for next week?”and when she replied that she didn’t know hesaid, “Do all your clothes correspond?” 4. Working on a case the documents in whichincluded a book that had pictures of women inbondage or black leather, Woodford asked Pryor to”look at this.” When she inquired whether it wasrelevant to a case, he replied, “No, I justwanted you to see it.” 5. Noticing an outfit in a shopping bag behindPryor’s desk, Woodford said, “Oh, a new outfit?”And when she said yes, he said, “Is thatsomething you got from Frederick’s of Hollywood?” Neither singly nor in combination do theseincidents rise to the level at which allegedsexual harassment becomes actionable underfederal law. Incidents 3 and 5 seem entirelyinnocuous, 1 and 2 mildly flirtatious, and 4possibly suggestive or even offensive, but not sooffensive as to constitute actionable harassment.For Title VII does not forbid sexual harassmentas such. The harassment must be sufficientlysevere that a rational trier of fact could findthat it had actually changed the conditions ofthe plaintiff’s workplace, e.g., Silk v. City ofChicago, 194 F.3d 788, 804 (7th Cir. 1999); Cowanv. Prudential Ins. Co., 141 F.3d 751, 755-56 (7thCir. 1998); Mendoza v. Borden, Inc., 195 F.3d1238, 1245-46 (11th Cir. 1999), for only sexualdiscrimination that changes those conditions is(so far as bears on sexual harassment at anyrate) actionable under that statute. E.g., Smithv. Sheahan, 189 F.3d 529, 532 (7th Cir. 1999). The harassment alleged here falls short of theharassment held in Baskerville v. Culligan Int’lCo., 50 F.3d 428 (7th Cir. 1995), and othercases, e.g., McKenzie v. Illinois Dept. ofTransportation, 92 F.3d 473, 476-77, 480 (7thCir. 1996); Saxton v. American Tel. & Tel. Co.,10 F.3d 526, 538, 534 (7th Cir. 1993); Weiss v.Coca-Cola Bottling Co., 990 F.2d 333, 334-35, 337(7th Cir. 1993); Mendoza v. Borden, Inc., supra,195 F.3d at 1242-43, 1247 (and cases cited in id.at 1246-47); Shepard v. Comptroller of PublicAccounts, 168 F.3d 871, 872, 874 (5th Cir. 1999);Quinn v. Green Tree Credit Corp., 159 F.3d 759,768 (2d Cir. 1998), to be beyond the reach ofTitle VII because insufficiently severe to changethe conditions of employment as they would beperceived by a reasonable person, nothypersensitive. Pryor seeks to distinguish these cases by meansof two affidavits filed after her deposition, atwhich she testified about the five incidentssummarized above. One affidavit is hers andasserts that Woodford had been harassing her foryears. The other affidavit is by another formeremployee of the Seyfarth firm and alleges thatshe was harassed by Woodford too. As far asPryor’s affidavit is concerned, she gives us noreason to depart from the presumption that anaffidavit which seeks to bolster a party’s priordeposition is not entitled to consideration,e.g., Maldonado v. U.S. Bank, 186 F.3d 759, 769(7th Cir. 1999); Raskin v. Wyatt Co., 125 F.3d55, 63 (2d Cir. 1997), while the other affidavitshows only that Pryor’s lawyer is confused aboutthe rule that sexual harassment is actionableunder Title VII only when it changes theplaintiff’s conditions of employment. Insofar asWoodford harassed other employees, and did sowithout (so far as appears) Pryor’s knowledge, itcould not have altered her conditions ofemployment, and so she could not complain aboutthat harassment under Title VII. Burnett v. TycoCorp., 203 F.3d 980, 981 (6th Cir. 2000); Abeitav. Transamerica Mailings, Inc., 159 F.3d 246, 249n. 4 (6th Cir. 1998); Creamer v. Laidlaw Transit,Inc., 86 F.3d 167, 171 (10th Cir. 1996); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d777, 782 (10th Cir. 1995). At argument her lawyertold us that Woodford had leered at her withouther knowing it, and he adduced this as evidencethat Woodford’s harassment was “pervasive.” Itwas actually irrelevant. So the claim of sexual harassment fails. ButSeyfarth does not argue that the claim was sofrivolous that the making of it showed that Pryorwas unfit to remain at the firm–that she was theharasser. See McDonnell v. Cisneros, 84 F.3d 246,259 (7th Cir. 1996). And so her claim ofretaliation is unaffected by the failure of herclaim of harassment. Three months after she filed that claim she wasfired by Seyfarth’s personnel manager after beingdiscovered glueing an artificial fingernail onthe finger of a friend in the ladies’ bathroom atthe Seyfarth firm. Seyfarth points out that evenif the offense seems a trivial one not meritingthe discharge of a long-term employee, still, solong as the discharge was not motivated by thefact that Pryor had filed a claim against thefirm the disproportionate character of themanager’s action could not establish liabilityunder Title VII. That is true, because Title VIIis not a “good cause” statute; it creates aremedy against invidious discrimination (or, ashere, retaliation), not against caprice. Thecircumstances leading up to the discharge,however, cast enough suspicion on the motive forfiring Pryor to entitle her to a trial. To begin with, if the facts are taken as theyshould be in the light most favorable to Pryor,there was no “offense.” She was on her break whenshe applied the nail; she had been “doing” nailsfor her coworkers for years; there was no ruleagainst having a visitor and doing the visitor’snail; and the procedure took only 30 seconds. Werepeat that it is not our business whether thefirm had good cause to fire Pryor; but it wouldbe odd if the firm had delegated to its personnelmanager the authority to fire a long-termemployee for entirely capricious reasons–sufficiently odd to make one wonder whetherretaliation rather than whim may have been thereal cause of the firm’s action. Against this Seyfarth argues that the incidentwith the nail was merely the straw that broke thecamel’s back–Pryor’s secretarial work wasunsatisfactory and her attire “inappropriate.”Yet she had been working for the firm for nineyears when she was fired in May 1995, and, so faras the documentary record, at least, isconcerned, her work had been entirelysatisfactory throughout. As recently as thesummer of 1994, her annual performance reviews(the last before she was fired) by the threelawyers she was working for then had been highlypositive, especially the review by an associatenamed Dalinka for whom she worked. Dalinka in hisdeposition testified that Pryor’s work hadactually been unsatisfactory when he filled outthe performance-review form and that he had givenher a glowing report in order not to make herfeel bad. Yet the form requires only that thereviewer check boxes (needs improvement,satisfactory, etc.) beside each task category.There are spaces for optional comments under theboxes, and Dalinka went out of his way to makepositive comments in each space, though he couldjust have checked the boxes without hurtingPryor’s feelings. His going the extra mile, as itwere, casts doubt on his testimony that he wasmaking a merely pro forma positive report, and byundermining his credibility also casts doubt onhis further and more fundamental testimony thatPryor’s work had deteriorated. Wylie v. FordMotor Co., 536 F.2d 306, 307-08 (10th Cir. 1976). It is common for supervisors to overrate theirsubordinates for purposes of building morale,avoiding conflict, and deflecting criticisms thatthe supervisor isn’t doing a good job (or that heshouldn’t have hired this subordinate in thefirst place). Not much weight can be given topositive reviews. But not much does not equalzero. And by going out of his way to say nicethings about the plaintiff Dalinka made itpossible for a reasonable trier of fact to inferthat his later denigration of her performance wasinvented for purposes of the litigation. Disbelieving a witness’s testimony about one ofthe material facts in a case can justify thetrier of fact in disbelieving the witness’scontested testimony on other material facts.Dressler v. Busch Entertainment Corp., 143 F.3d778, 781 (3d Cir. 1998); Burton v. State, 651So.2d 641, 655-56 (Ala. Crim. App.), aff’d subnom. Ex parte Burton, 651 So.2d 659 (Ala. 1994).An affidavit from another lawyer for whom Pryorworked denied that she had any performanceproblems; and Dalinka never documented any of hisconcerns about her performance. One doesn’t wantto encourage bureaucracy in the workplace; but ofall employers, lawyers can be expected to be mostsensitive to charges of employment discriminationand most assiduous about documenting actionscalculated to rebut such charges. Especially alaw firm like Seyfarth that specializes inemployment law! Dalinka testified that Pryor refused to learnthe computer program Excel. He says that allsecretaries were required to learn it, butSeyfarth cannot locate a document saying this.Pryor testified that, far from refusing to learnExcel (which however she testified was optionalrather than mandatory), she was scheduled for anExcel lesson the very day she was fired. Finally, the personnel manager criticized Pryorfor “inappropriate attire” (apparently, wearingstretch pants and a sweater top). The managertestified that Pryor persisted in wearing suchattire; Pryor testified that she immediatelyswitched to wearing suits. Such a conflict cannotbe resolved on summary judgment. Not only may the grounds on which Pryor wasfired have been pretextual, but she presentedevidence that Seyfarth had a policy ofprogressive discipline which would have precludedthe firing of Pryor for such trivial offenseswithout prior warnings which it is conceded shedid not receive. Seyfarth denies the existence ofsuch a policy, but this is another issue of factthat cannot be resolved on summary judgment. Itsargument that an employee is incompetent totestify to the existence of an employment policyis absurd. The personnel manager testified that she didn’tknow that Pryor had filed a claim against thefirm when she fired her, but this was another bitof contested evidence that a jury would not berequired to believe. The snitch who turned Pryorin to the personnel manager for the nailmisdemeanor knew about the claim, and the managerspoke to other people at the firm before firingher, including Dalinka, whose complaints aboutPryor’s performance may have been fabricated aspart of a retaliatory scheme. Dalinka,incidentally, worked in the same department ofthe firm as Woodford. A reasonable jury could find that after andbecause Pryor filed a claim, the firm was”laying” for her, biding its time to create aspace between the date of the claim and the dateof the discharge, and in the interval gatheringpretextual evidence of misconduct to provide afigleaf for its retaliatory action. Of course wedo not hold that this is the correctinterpretation of the events, only that thematter is sufficiently in doubt to require atrial. The dismissal of the harassment count isaffirmed, but the dismissal of the retaliationcount is reversed and the case remanded forfurther proceedings consistent with this opinion. Affirmed in Part, Reversed in Part, and Remanded.
Pryor v. Seyfarth, Shaw, Fairweather & Geraldson In the United States Court of Appeals For the Seventh Circuit No. 99-2280 Donna F. Pryor, Plaintiff-Appellant, v. Seyfarth, Shaw, Fairweather & Geraldson, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 7588–Harry D. Leinenweber, Judge. Argued January 7, 2000–Decided May 11, 2000 Before Posner, Chief Judge, and Rovner and Evans, Circuit Judges.
