Merheb, Robert S. v. IL State Toll ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2547
Robert S. Merheb,
Plaintiff-Appellant,
v.
Illinois State Toll Highway Authority,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 98 C 3190--Charles R. Norgle, Sr., Judge.
Argued March 30, 2001--Decided October 3, 2001
Before Flaum, Chief Judge, and Posner and
Evans, Circuit Judges.
Posner, Circuit Judge. The plaintiff
appeals from a grant of summary judgment
in favor of his former employer, the
Illinois tollway authority. His suit
charged discrimination on the basis of
his sex (male) and national origin (Leba
nese), and also retaliation, under Title
VII of the Civil Rights Act of 1964, as
well as breach of contract under the
common law of Illinois. Regarding the
state law claim (for there is no Eleventh
Amendment immunity to suits under Title
VII, Fitzpatrick v. Bitzer, 427 U.S. 445,
448-49 (1976); Holman v. Indiana, 211
F.3d 399, 402 n. 2 (7th Cir. 2000)), our
court held in Miller-Davis Co. v.
Illinois State Toll Highway Authority,
567 F.2d 323, 327-31 (7th Cir. 1977),
that the tollway authority is not
entitled to the state’s Eleventh
Amendment immunity because it is not
financed by the state. 605 ILCS 10/25.
The Eighth Circuit later reached the
opposite conclusion, but in a cursory
analysis that mistakenly assumes that
Illinois would pay a judgment against the
tollway authority. Jackson Sawmill Co. v.
United States, 580 F.2d 302, 308-09 (8th
Cir. 1978).
Construed as favorably to the plaintiff
as the record will permit, the facts are
as follows. Merheb was employed by the
tollway authority as an auditor. In 1996,
alleging that a female supervisor had
slapped him, he filed a charge of
discrimination with the Illinois
department of human rights. He settled
the dispute kicked off by the charge in
an agreement in which the authority
promised him a new job. The agreement
further states that "if [the tollway
authority] deems that Robert Merheb has
committed any infraction in his new
position warranting discipline, only
progressive discipline, as set forth in
[the authority’s employee manual] shall
be used to correct the alleged improper
behavior." The manual lists four types of
discipline, in ascending order of
severity: oral reprimands for minor
infractions, written reprimands if oral
ones fail to do the trick, suspension
without pay if reprimands have failed "or
the offense indicates more stringent
corrective action," and discharge "when
other corrective measures have failed or
if the gravity of the offense warrants
it." Ralph Wehner, the tollway
authority’s executive director, was aware
of Merheb’s charge of discrimination and
was overheard to say that he was "working
on getting rid" of Merheb. This was in
July 1997, when Merheb started work in
his new position.
His supervisor was Sharon Conrad. For
the remaining six months of his
employment, she "yelled at Merheb;
shehumiliated, degraded and demoralized
him in front of others on a constant
basis" (we are quoting from his brief).
"Although Conrad hardly knew Merheb, she
was rude, impolite and unkind to him on a
constant basis." She incited another
employee to file a baseless claim of
sexual harassment against Merheb for
"staring," imitated his accent in a
mocking fashion, and was excessively
critical of his work. We may assume
without having to decide that if
thisconduct actually occurred and was
motivated by Merheb’s sex or national
origin, it would rise to the level of
actionable harassment--harassment so
severe as to make the conditions of his
employment intolerable. See, e.g., Harris
v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); Cooke v. Stefani Management
Services, Inc., 250 F.3d 564, 565-67 (7th
Cir. 2001); Perry v. Harris Chernin,
Inc., 126 F.3d 1010, 1013 (7th Cir.
1997); Fitzgerald v. Henderson, 251 F.3d
345, 350-51 (2d Cir. 2001); Torres v.
Pisano, 116 F.3d 625, 630-31 (2d Cir.
1997); Penry v. Federal Home Loan Bank,
155 F.3d 1257, 1261 (10th Cir. 1998). The
closest case to this one is Fitzgerald,
though it is distinguishable because the
supervisor’s abuse followed his
unsuccessful attempts to obtain sexual
favors from the plaintiff. The present
case must be reckoned a close one in
light of such cases as Webb v.
Cardiothoracic Surgery Associates, 139
F.3d 532, 539 (5th Cir. 1998), and Scusa
v. Nestle U.S.A. Co., 181 F.3d 958, 962-
63 nn. 2-3, 966-67 (8th Cir. 1999). But
all that is neither here nor there, for
while the victim of actionable harassment
would of course be entitled to damages,
Merheb sought no relief for harassment
until the appeal, which was too late. Cf.
Lenoir v. Roll Coater, Inc., 13 F.3d
1130, 1132 n. 1 (7th Cir. 1994). His only
complaint was about being discharged. The
harassment is thus relevant only as
background.
We move therefore to the circumstances
of his discharge. After six months of
torture by Conrad, Merheb blew his stack.
Criticized by Conrad for a mistake, he
became furious. According to several
employees who were present, his face
turned red, his eyes bulged and took on a
"wild look," and he stood up and screamed
in rage something to the effect that "If
you don’t do something about Sharon, I
will." One of these employees feared that
Merheb was about to "go postal." Another
was sufficiently frightened to run to the
department supervisor, Mark Swidergal,
and tell him he had to do something. A
visibly shaken Conrad cried and told a
human relations officer, Susan Sinz, that
she feared for her safety. Sinz believed
her, having been on the phone with Merheb
during the incident.
The outburst occurred on Friday. The
following Monday, Sinz and Swidergal met
with the authority’s in-house counsel and
Jim Wassell, Swidergal’s supervisor, and
they agreed that Merheb should be fired.
Wehner--who remember was the tollway
authority’s executive director--approved
their decision. The next day Merheb was
fired for "gross insubordination,
disrespectful conduct, [and] threatening
behavior."
Merheb argues that the discharge broke
the promise in the settlement agreement
that any discipline meted out to him in
his new position would be in accordance
with the provisions of the employee
manual governing progressive discipline.
(This is his state law breach of contract
claim.) But those provisions, which we
quoted earlier, do not require in all
cases climbing the first three steps on
the ladder before reaching step 4,
discharge. They would be insane if they
did, for it would mean that if Merheb had
killed Conrad he could have received only
an oral reprimand, and if he had then
killed Swidergal as well, only a written
one. Contracts like statutes are not read
literally when the result would be an
absurdity. Health Cost Controls of
Illinois, Inc. v. Washington, 187 F.3d
703, 712 (7th Cir. 1999); Level 3
Communications, Inc. v. Federal Ins. Co.,
168 F.3d 956, 958 (7th Cir. 1999);
Catalina Enterprises, Incorporated
Pension Trust v. Hartford Fire Ins. Co.,
67 F.3d 63, 66 (4th Cir. 1995); Wessels,
Arnold & Henderson v. National Medical
Waste, Inc., 65 F.3d 1427, 1436 (8th Cir.
1995); United States v. Irvine, 756 F.2d
708, 710 (9th Cir. 1985). Human foresight
is limited. Not all contingencies can be
anticipated and provided for in a
contract. Attempting to do so would make
the process of contract formation
cumbersome and expensive beyond reason.
An important function of contract law is
to fill the interstices of a contract--in
effect to complete the contract--by
interpolating terms reasonably to be
inferred from the essential terms,
purpose, context, and character of the
parties’ deal. All that the settlement
agreement in this case, when reasonably
interpreted, did was protect Merheb from
retaliation for having filed a charge of
discrimination by assuring him that he
would be disciplined in the same manner
as any other employee. Firing him for
threatening behavior was not treating him
differently from how any other employee
would have been treated. The-progressive-
discipline provisions of the tollway
authority’s employee manual don’t even
purport to forbid discharge before the
employee has received lesser punishment.
Discharge is authorized "when other
corrective measures have failed or if the
gravity of the offense warrants it." It
did warrant it.
At least if the facts are as we have
stated them. Merheb argues that he has
been misunderstood; that he hadn’t meant
to threaten anybody. But the issue is not
whether Merheb was a menace; it’s whether
he appeared to be. Unlike the plaintiff
in Crawford v. Runyon, 37 F.3d 1338,
1341-42 (8th Cir. 1994), he doesn’t deny
having engaged in the conduct that led
him to be fired and there is no doubt
that several employees were seriously
frightened by his outburst. Two of them
complained immediately to Swidergal, and
their complaints were corroborated by
what Sinz heard on the phone. The
deposition testimony of other employees
makes clear that Merheb had put a fright
into them as well. Merheb could have
contested that testimony by attempting to
show, for example, that they had been
induced to testify so by threats or
promises by the employer. He did not.
Workplace violence is sufficiently common
to have given rise to the expression "go
postal" (a generic term for attacking
coemployees, not one limited to postal
employees) used by one of these
employees, and to justify management in
treating threatening behavior with
exemplary severity.
It’s not as if only a mouse would have
been frightened by Merheb’s outburst. He
doesn’t argue that the employer was
unreasonable in concluding from the other
employees’ complaints and reactions that
Merheb had committed an offense against
the discipline of the workplace too
serious to be rectified by progressive
discipline. Compare Crawford v. Runyon,
79 F.3d 743 (8th Cir. 1996). He does note
that the district judge, in dismissing
the tollway authority’s very curious
counterclaim in which it charged Merheb
with having assaulted Conrad (a charge
that, as the judge correctly noted, the
authority had no standing to make), said
that Merheb hadn’t committed an assault.
But threat and assault are not synonyms
in law. An assault requires words,
ordinarily accompanied by a menacing
gesture (such as pointing a gun at the
plaintiff), that make the plaintiff fear
an imminent attack. See, e.g., I. De S. &
Wife v. W. de S., Y.B. Liber Assisarum,
22 Edw. Ch. 3, f. 99, pl. 60 (1348 or 1349);
Beach v. Hancock, 27 N.H. 223 (1853). It
is doubtful, despite the fear expressed
by one employee that Merheb was about to
"go postal," that his outburst was
sufficiently ominous to induce a
reasonable such fear. But an employer
need not tolerate the continued presence
of an employee who has terrified his
coworkers merely because the technical
elements of an assault are not present.
Only if the other employees’ frightened
reactions to the words or conduct of a
fellow employee were completely
unreasonable would the employer be
obligated to disregard them.
From what we have said it is obvious
that Merheb’s claim that he was
discharged because of his sex or national
origin must fail. He has no direct
evidence of discrimination, and as we
have just seen he has failed to show that
the stated ground for his discharge--his
threatening behavior--was a mere pretext
from which a trier of fact might infer a
discriminatory intent. See Lenoir v. Roll
Coater, Inc., supra, 13 F.3d at 1133;
Smith v. Leggett Wire Co., 220 F.3d 752,
759 (6th Cir. 2000); Crawford v. Runyon,
supra, 37 F.3d at 1341.
That leaves only the claim of
retaliation, which pivots on the fact
that Wehner, who approved Merheb’s
termination, had six months earlier said
that he was working to get rid of this
employee who some months before had filed
a charge of discrimination against the
tollway authority of which Wehner was
executive director. What defeats an
inference of retaliation are the
circumstances in which Merheb was
discharged. Wehner was out of town when
Sinz called him to tell him that she,
Wassell, Swidergal, and the authority’s
lawyer wanted to fire Merheb because he
had threatened a manager. What choice had
Wehner? It is inconceivable that, had he
not been working to get rid of Merheb, he
would have said, "I don’t believe you" or
"threatening a manager is not grounds for
discharge." He may have harbored
retaliatory animus against Merheb, but no
reasonable jury could conclude that, had
it not been for animus, he would not have
approved Merheb’s discharge. He had no
choice.
Affirmed.