BERRY v. CHICAGO TRANSIT AUTHORITY (August 23, 2010)

Cynthia Berry was one of only two females among the approximately fifty Chicago Transit Authority (CTA) employees in her work area. Early in 2006, during a morning break, Berry alleges that she was the victim of sexual harassment. The episode included significant, unwelcome physical touching. She reported the episode to a supervisor the following day. According to Berry, her supervisor told her she could lose her job if she pursued charges, told her he was going to protect the CTA, and instructed her to stay away from the break area. The supervisor took statements from the other witnesses, all of whom identified Berry as the aggressor. The official internal investigation came to the same conclusion. Shortly thereafter, Berry went on short-term leave and never returned to her job. She sought injured-on-duty status, which would have qualified her for workers compensation, but alleges that her supervisor refused. Berry brought suit for sex discrimination and hostile work environment. Judge Conlon (N.D. Ill.) granted summary judgment to the CTA, concluding that the CTA took prompt and reasonable steps in response to the allegations and that Berry suffered no adverse employment action. Berry appeals.

In their opinion, Judges Kanne, Rover, and Tinder affirmed in part and reversed and remanded in part. The Court agreed with the district court that Berry could not establish an adverse employment action -- so her discrimination claim must fail. Berry asserted a hostile environment claim both with respect to her co-worker (the unwelcome physical contact) and her supervisor (his dismissive comments). The Court first pointed out that Berry's testimony, although self-serving and uncorroborated, can be evidence of a disputed fact if it is based on personal knowledge. With respect to the hostile environment claim against the supervisor, the Court criticized the lower court for discounting Berry's testimony but nonetheless concluded that the dismissive comments were not severe or pervasive enough to constitute a hostile environment. They were infrequent, not threatening, and did not interfere with her employment. The allegations against the co-worker were different. Unwelcome and uninvited contact with intimate body parts is the most severe type of harassment. The Court concluded that Berry's claim could go forward. In addition, the Court concluded that the claim against the CTA based on the co-worker's harassment should go forward. Again, the Court criticized the district court's treatment of Berry's testimony. She contends that her supervisor sabotaged the investigation. A reasonable fact finder could find that the CTA was negligent in responding to her charges, and therefore liable.