Employment — retaliation

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United States Court of Appeals

CIVIL

Employment

Retaliation

Where an employee could not reasonably believe that one remark by a manager to a subordinate constituted sexual harassment, his termination was not retaliatory.

“When O’Leary expressed concern to Tolan, Deffarge, and others about Miller’s conduct at the dinner, he could not reasonably have believed that Miller’s behavior constituted sexual harassment that was prohibited by Title VII. O’Leary knew that Miller had boasted of her sexual relationships with employees at Accretive and elsewhere and had remarked to the twenty-something Graves that men his age were more her speed. However, conduct must be either severe or pervasive to constitute actionable sexual harassment. E.g., Berry, 618 F.3d at 691. Miller’s conduct plainly was neither: it involved a single instance of sexually-charged remarks which, however imprudent they may have been, were relatively tame. The Supreme Court, in Clark Cnty. Sch. Dist. v. Breeden, found that a brief chortle among colleagues over a sexual remark made by a job applicant could not objectively be thought of as sexual harassment proscribed by Title VII, and for that reason the Court concluded that a complaint about the incident did not constitute protected opposition to discrimination. 532 U.S. 268, 271, 121 S. Ct. 1508, 1510 (2001) (per curiam). The same is true here. O’Leary had no reason to believe that Graves, who first mentioned the incident, felt harassed by Miller’s comments; in fact, Tsokolas had told him that Graves did not feel harassed. Nor did O’Leary have reason to believe that anyone else in attendance at the dinner was bothered by Miller’s remarks either. Even if Graves or someone else had expressed discomfort with the remarks, that would not be enough to establish that Miller’s remarks by themselves established a hostile work environment, for conduct must be both objectively and subjectively offensive to be cognizable under Title VII. E.g., Berry, 618 F.3d at 691. And although O’Leary points to some evidence in the record suggesting that Miller had engaged in similar behavior on other occasions, which would make for a stronger contention that she was running afoul of the statute, that evidence, to the extent it was known to him at the time he took the matter up the chain of command, neither triggered his complaint nor was discussed with his superiors. So far as the record reveals, O’Leary’s report focused on one incident of inappropriate behavior by Miller. No one could reasonably think that Miller had violated Title VII through her conduct at the dinner alone. See Mattson v. Caterpillar, Inc., 359 F.3d 885, 889 (7th Cir. 2004) (finding plaintiff’s sexual harassment charge not statutorily protected where based on one instance in which supervisor’s breast brushed against his arm and another incident in which supervisor reached around plaintiff without touching him; no reasonable person could think that this conduct constituted sexual harassment, and plaintiff himself did not believe that he had been sexually harassed). Consequently, O’Leary, even assuming that he was genuinely concerned about the possibility that Miller had engaged in harassment, did not engage in protected conduct when he reported the incident to his superiors. His retaliation claim, to the extent it is based on opposition to sex discrimination, therefore fails.”

Affirmed.

10-1418 O’Leary v. Accretive Health, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Conlon, J., Rovner, J.