Spearman, Edison K. v. Ford Motor Company ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3538
Edison K. Spearman,
Plaintiff-Appellant,
v.
Ford Motor Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 452--David H. Coar, Judge.
Argued April 5, 2000--Decided November 3, 2000
Before Manion, Kanne, and Evans, Circuit Judges.
Manion, Circuit Judge. Edison Spearman sued his
current employer, Ford Motor Company, alleging
that Ford violated Title VII by subjecting him to
a hostile environment of sexual harassment,
retaliating against him for opposing sexual
harassment, and for discriminating against him on
the basis of his sex. Ford moved for summary
judgment, which the district court granted.
Spearman appeals, and we affirm.
I.
Edison Spearman is a black man and a
homosexual/1 who has been working for Ford since
1990. In October 1995, Spearman worked as a
"blanker operator" at Ford’s Chicago Heights
Stamping Plant, where he operated press machines
that "blank" or "stamp" sheet metal into
dimensional form. In the summer of 1997, Spearman
was promoted to the position of "blanker utility"
worker, and assigned to relieve two blanker
operators (Gregory Curtis and Steve Neeley) for
their work breaks, lunch breaks and other
rotations.
Spearman filed his first of several complaints
of harassment on December 8, 1995, in which he
reported that since his assignment as a blanker
operator in October 1995, Curtis constantly took
personal items (pens, newspapers, and gloves)
from him without his permission. When Spearman
told Curtis to stop, Curtis (a black man) called
Spearman a "nigger" and a "selfish bitch." Curtis
would also hound Spearman for lunch money, and
then call him a "cheap ass bitch" if his requests
were occasionally denied. Following a glove-
snatching incident, Spearman had two meetings
with his union representative and Curtis to
resolve the matter.
Spearman reported no further incidents of
harassment until May 16, 1997, when he filed a
written complaint concerning an altercation with
Curtis over the timing of lunch breaks. Curtis
confronted Spearman, called him a "little bitch,"
told him that he hated his "gay ass," and
threatened to go to Spearman’s residence in
Indiana and "f---- [his] gay faggot ass up." To
defuse the situation, a foreman assigned Spearman
and Curtis to different press areas for the
balance of the shift. The following week, labor
relations investigated the matter and held two
meetings with Spearman, Curtis and a union
representative.
Curtis and Neeley testified that they and their
co-workers at Ford suspected that Spearman was a
homosexual. According to Curtis, he thought that
Spearman was homosexual when they first met and
Spearman supposedly took "a full look" at Curtis
like a man would look at a woman. Curtis also
opined that other blanker operators at Ford were
uncomfortable with Spearman because they observed
that he "looked [them] over" like a man would
"take a full look" at a woman, that he got too
close to his male co-workers when he talked to
them, and even "rubbed up especially close" to
some of them. Curtis also testified that one co-
worker started "squirming" when others teased him
that Spearman had a "crush" on him. And Curtis
also claimed that his brother-in-law and a co-
worker told him that they saw Spearman at gay
nightclubs.
According to Spearman, Curtis continually
harassed him after the May 1997 incident by
reporting to work late and returning from his
breaks late in order to disrupt Spearman’s relief
schedule as a utility worker, and thus deprive
him of his breaks and lunches. Curtis’s negative
behavior toward Spearman continued until he was
moved to another press machine (and away from
Spearman) in October 1997.
Spearman submitted another written complaint
concerning a June 21, 1997 argument with Neeley
over the timing of a break. As a blanker utility
worker, Spearman told Neeley to take a break, but
Neeley refused, leaned into Spearman’s face, and
taunted him by telling Spearman to hit him. In
his complaint, Spearman wrote: "[T]here’s a
constant problem with Steve, when it comes to
breaks; since I’ve become utility, he rebels and
insist [sic] on debating me about how and when I
relieve." Labor relations responded by conducting
a meeting with all of the parties involved in the
matter.
In June 1997, Spearman discovered graffiti on
the bulletin board that stated: "Aids kills
faggots dead . . . RuPaul, RuSpearman."/2
Spearman waited five months to report the
incident, and when he did, labor relations
representatives promptly painted over it the
following day.
On October 21, 1997, Spearman delivered another
complaint to Ford that involved an altercation
with George Pearson (who was temporarily assigned
to work with Spearman) about the timing of a
break. While Pearson was leaving his work
station, he said to Spearman, "You f----ing jack-
off, pussy-ass," and saluted Spearman with his
middle finger. Spearman reported the incident to
his foreman, Anthony Perez, who assured Spearman
that he would discuss the matter with Pearson and
"discipline him." Shortly after Spearman filed
his complaint about the incident, a labor
relations representative investigated the matter
and conducted a meeting with Spearman and his
union representative.
In November 1997, Spearman discovered more
graffiti outside a portable toilet that stated:
"Ed Sperman [sic] is a fag and has AIDS" and
"Edison Sperman [sic] is gay." Labor relations
representatives painted over the graffiti
immediately after Spearman’s report.
Ford received another letter from Spearman
around November 24, 1997, in which he complained
that he was being harassed by Perez, who used the
following instructional hypothetical at a
department meeting about sexual harassment:
Say for instance, Greg and Ed are in the back
bringing in a coil, and Ed touches Greg in a way
that made him feel uncomfortable, that can be a
charge of sexual harassment.
Spearman believed that Perez’s hypothetical was
about himself (Ed) and Greg Curtis, and thus it
was "totally inappropriate" and harmful to
Spearman because he and Curtis had been involved
in several altercations in the past. Perez
testified that he was not referring to Spearman
in the example, but to Ed Rolff, one of
Spearman’s co-workers.
In the same letter, Spearman also complained
that Perez had offered to give him a hug on two
separate occasions. On the first occasion,
Spearman admits that Perez greeted him with a hug
because he showed up for work during a staff
shortage in the summer of 1997. But Spearman
stated that he "felt very awkward" about Perez’s
second offer of a hug that occurred when Spearman
was confused about overtime duties and consulted
Perez for advice. Perez testified that Spearman
appeared to be distraught because the press
machine was not working, and that Perez offered
to give him a hug to lift his spirits.
During the afternoon of November 24, 1997, Perez
instructed Spearman to perform housekeeping
duties and wash the windows of the press machines
for about an hour before the end of his shift.
Spearman believed that his assignment was
punitive and that Perez was retaliating against
him for his November 17, 1997 harassment
complaint about Perez’s instructional
hypothetical and offers to hug Spearman. He left
work that day, went on medical leave in December
1997, and did not return to work until May 4,
1998. Perez testified that he assigned similar
housekeeping tasks to other utility workers and
operators to keep them busy when they were not
operating the press machines.
During his medical leave, Spearman received
treatment for depression. When he returned to
work after a five-month absence, he discovered
that his tool box was destroyed and that his
tools had been stolen.
Spearman then sued Ford, alleging that it
violated Title VII by subjecting him to a hostile
environment of sexual harassment; by retaliating
against him because he filed complaints opposing
sexual harassment; and by discriminating against
him because of his sex by failing to investigate
his sexual harassment complaints as promptly as
similar complaints from female employees. Ford
moved for summary judgment. The district court
granted Ford’s motion, concluding that while
Spearman established a reasonable inference that
he was harassed because of his sex, his sexual
harassment claim failed because he did not show
that the harassment was severe enough to cause a
change in his employment conditions. The district
court also denied Spearman’s retaliation claim by
concluding that he failed to establish a prima
facie case by showing that he suffered an adverse
employment action. The court did not address
Spearman’s sex discrimination claim. Spearman
appeals.
II.
"We review the district court’s entry of summary
judgment de novo," Miller v. American Family Mut.
Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000),
viewing all of the facts, and drawing all
reasonable inferences from those facts, in favor
of the nonmoving party. Id. Summary judgment is
proper if the record shows that "there is no
genuine issue as to any material fact and that
the moving party is entitled to judgment as a
matter of law." Silk v. City of Chicago, 194 F.3d
788, 798 (7th Cir. 1999) (citing Fed. R. Civ. P.
56(c)).
Title VII prohibits an employer from harassing
an employee "because of [the employee’s] sex."/3
Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75, 78 (1998); 42 U.S.C. sec. 2000e-2(a)(1).
Same-sex sexual harassment is actionable under
Title VII "to the extent that it occurs ’because
of’ the plaintiff’s sex." Shepherd v. Slater
Steels Corp., 168 F.3d 998, 1007 (7th Cir. 1999).
We have stated that "[t]he phrase in Title VII
prohibiting discrimination based on sex" means
that "it is unlawful to discriminate against
women because they are women and against men
because they are men." Ulane v. Eastern Airlines,
Inc., 742 F.2d 1081, 1085 (7th Cir. 1984). In
other words, Congress intended the term "sex" to
mean "biological male or biological female," and
not one’s sexuality or sexual orientation. See
id. at 1087. Therefore, harassment based solely
upon a person’s sexual preference or orientation
(and not on one’s sex) is not an unlawful
employment practice under Title VII. Id. at 1085;
see also Hamner v. St. Vincent Hosp. and Health
Care Center, Inc., 224 F.3d 701, 704 (7th Cir.
2000).
A. Hostile Environment Claim
Spearman first argues on appeal that he was
sexually harassed at Ford in violation of Title
VII. He claims that the vulgar and sexually
explicit insults and graffiti of his harassers
were motivated by "sex-stereotypes" because his
co-workers perceived him to be too feminine to
fit the male image at Ford. His contention relies
primarily on Curtis’s testimony that there is a
"masculine" environment at the Ford plant,
implying that he questioned Spearman’s
masculinity. Spearman also contends that Curtis
engaged in sex stereotypes when he called
Spearman a "bitch," which, according to another
utility worker at Ford (David Gibson), meant that
Curtis called Spearman a "woman." Moreover,
Spearman asserts that the graffiti associating
him with a drag queen (RuPaul) proves that his
co-workers perceived him to be too feminine to
work at Ford. And he claims that sex stereotypes
motivated Perez to harass him with the window-
washing assignment, which is a function
"traditionally reserved for women" (a view that
could also be labeled sex stereotyping).
While sexually explicit language may constitute
evidence of sexual harassment, it is not "always
actionable, regardless of the harasser’s sex,
sexual orientation, or motivations." See Oncale,
523 U.S. at 79. The plaintiff must still show
that he was harassed because of his sex. Id.Similarly, while sex stereotyping may constitute
evidence of sex discrimination, "[r]emarks at
work that are based on sex-stereotypes do not
inevitably prove that gender played a part in a
particular employment decision. The plaintiff
must show that the employer actually relied on
[the plaintiff’s] gender in making its decision."
Price Waterhouse v. Hopkins, 490 U.S. 228, 251
(1989). Therefore, according to Oncale and Price
Waterhouse, we must consider any sexually
explicit language or stereotypical statements
within the context of all of the evidence of
harassment in the case, and then determine
whether the evidence as a whole creates a
reasonable inference that the plaintiff was
discriminated against because of his sex.
Here, the record clearly demonstrates that
Spearman’s problems resulted from his
altercations with co-workers over work issues,
and because of his apparent homosexuality. But he
was not harassed because of his sex (i.e. not
because he is a man). His harassers used sexually
explicit, vulgar insults to express their anger
at him over work-related conflicts. However,
these conflicts did not arise because he is a
man. Curtis directed insults at Spearman to
irritate or provoke him during three specific
arguments about lunch money, small personal
items, and the timing of lunch breaks. And
Pearson directed a barrage of derogatory remarks
at Spearman after he unsuccessfully protested
Spearman’s order to take a break. It is clear
that Curtis and Pearson lodged sexually explicit
insults at Spearman to express their acrimony
over work-related disputes, and not to harass him
because he is a man; and such conduct does not
constitute sexual harassment. See Johnson v.
Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997)
(sexually explicit remarks among male co-workers
were "simply expressions of animosity or juvenile
provocation," and were not directed at the
plaintiff because of his sex).
The record also shows that Spearman’s co-workers
maligned him because of his apparent
homosexuality, and not because of his sex. The
testimonies of Curtis and Neeley clearly
demonstrate that Spearman’s harassers were
motivated by their suspicion of Spearman’s sexual
orientation and his perceived desire for some
sort of physical intimacy with them. And even
Spearman’s understanding of Perez’s instructional
hypothetical indicates that Perez teased him
about his homosexuality. Moreover, Spearman’s co-
workers directed stereotypical statements at him
to express their hostility to his perceived
homosexuality, and not to harass him because he
is a man. See Price Waterhouse, 490 U.S. at 251.
Curtis called him a "bitch" which, according to
Gibson, means a "woman," or a "faggot." And the
graffiti that specifically stated that Spearman
is "gay," a "fag," and compared him to a drag
queen confirms that some of his co-workers were
hostile to his sexual orientation, and not to his
sex.
Title VII is not a "general civility code" for
the workplace, see Oncale, 523 U.S. at 81; it
does not prohibit harassment in general or of
one’s homosexuality in particular. Likewise,
sexually explicit insults that arise solely from
altercations over work-related issues, while
certainly unpleasant, do not violate Title VII.
Because Spearman was not harassed because of his
sex, his hostile environment claim fails. Oncale,
523 U.S. at 78.
B. Retaliation Claim
Spearman’s next argument on appeal is that Perez
assigned him the window-washing task to retaliate
against him for his written complaint about
Perez’s harassment, in violation of Title VII.
Title VII "protects persons not just from
certain forms of job discrimination [and
harassment], but from retaliation for complaining
about the types of discrimination it
prohibits."/4 Miller, 203 F.3d at 1007; 42
U.S.C. sec. 2000e-3(a). To prevail on a claim of
retaliation, the plaintiff must show that: (1) he
complained about conduct that is prohibited by
Title VII; (2) he suffered an adverse employment
action; and (3) the adverse employment action was
caused by his opposition to the unlawful
employment practice. Miller, 203 F.3d at 1007. An
"adverse employment action" alters the "terms or
conditions" of one’s employment. Silk, 194 F.3d
at 804. It "constitutes a significant change in
employment status, such as hiring, firing,
failing to promote, reassignment with
significantly different responsibilities, or a
decision causing a significant change in benefits
as well as the ’denial of a raise or promotion.’"
Id. at 804 n.16 (quoting Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Here, Perez assigned Spearman to wash the
windows of his two press machines for about an
hour. Spearman argues that the assignment was
"degrading and punitive" and thus diminished his
job responsibilities as a utility worker. But he
also testified that he performed housekeeping
duties as a utility worker before, including
sweeping around the press machines and removing
trash from the plant floor. Thus, the additional
task of washing the windows of the press machines
certainly did not "significantly" alter (if at
all) the terms and conditions of his employment.
Perez testified that the cleaning assignments
were to keep Spearman busy with necessary clean-
up chores rather than having him "standing there
doing nothing" for an hour or so before his
relief duties were to begin. The assignment was
nothing more than "a mere inconvenience or an
alteration of job responsibilities," Crady v.
Liberty Nat. Bank and Trust Co. of Indiana, 993
F.2d 132, 136 (7th Cir. 1993), and thus
Spearman’s retaliation claim fails./5
C. Sex Discrimination Claim
Spearman’s last claim on appeal is that Ford
discriminated against him on the basis of his sex
by failing to investigate his alleged sexual
harassment complaints as promptly as it
investigated sexual harassment complaints from
female employees. To raise a prima facie case of
sex discrimination, Spearman must show that: (1)
he belongs to a protected class (in this case,
males); (2) he performed his job satisfactorily;
(3) he suffered an adverse employment action; and
(4) Ford treated similarly situated female
employees more favorably. See Greenslade v.
Chicago Sun-Times, Inc., 112 F.3d 853, 863 (7th
Cir. 1997).
Spearman’s discrimination claim does not meet
the fourth test of the prima facie case. We have
already established that none of his complaints
involved sexual harassment, and there is no
evidence in the record that demonstrates that
Ford perceived Spearman’s complaints to be about
sexual harassment at the time he filed them.
Therefore, Spearman does not show that he was
similarly situated to female employees who filed
sexual harassment complaints. Furthermore, the
record demonstrates that Ford sought to resolve
Spearman’s complaints with investigations,
meetings, and by promptly painting over graffiti.
Spearman provides no evidence that Ford responded
more vigorously to sexual harassment complaints
from female employees. Because Spearman’s
complaints were not about sexual harassment, and
he provides no comparative evidence to support
his disparate treatment claim, it fails./6 Cheek
v. Peabody Coal Co., 97 F.3d 200, 204 (7th Cir.
1996).
III.
Although the district court determined that
there was evidence that Spearman was sexually
harassed, but granted summary judgment for Ford
by concluding that the harassment was not severe
or pervasive enough to cause a change in
Spearman’s employment conditions, we conclude
that Spearman’s sexual harassment (hostile
environment) claim fails because he was not
harassed because of his sex; his retaliation
claim fails because he did not suffer an adverse
employment action; and his disparate treatment
claim fails because he has not shown that he was
similarly situated to female Ford employees who
filed sexual harassment complaints, or that Ford
treated female employees more favorably. We AFFIRM.
/1 Spearman testified at his deposition that he is a
homosexual, but he claims that he never made that
known to anyone at Ford.
/2 RuPaul is the name of a black, male drag queen
and entertainer.
/3 This provision of Title VII provides that: "[i]t
shall be an unlawful employment practice for an
employer . . . to discharge any individual, or
otherwise to discriminate against any individual
with respect to his compensation, terms,
conditions, or privileges of employment, because
of such individual’s race, color, religion, sex,
or national origin." 42 U.S.C. sec. 2000e-
2(a)(1).
/4 The retaliation provision of Title VII provides
that: "[i]t shall be an unlawful employment
practice for an employer . . . to discriminate
against any individual . . . because he has
opposed any practice made an unlawful employment
practice by [Title VII]." 42 U.S.C. sec. 2000e-
3(a).
/5 The retaliation claim also fails because
Spearman’s numerous complaints of co-worker abuse
did not involve an unlawful employment practice
under Title VII, and there is no evidence in the
record that he even had a subjective belief that
he was being sexually harassed. See Hamner, 224
F.3d at 707.
/6 It is also questionable whether Spearman ever
suffered an adverse employment action, but
because we conclude that his sex discrimination
claim fails because there is no evidence that he
meets the fourth test of a prima facie case, we
decline to address this issue.