Mason, Mark v. Southern IL Universi ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3120
Mark Mason,
Plaintiff-Appellant,
v.
Southern Illinois University at Carbondale,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 96 C 4135--James L. Foreman, Judge.
Argued February 25, 2000--Decided December 5, 2000
Before Bauer, Ripple, and Manion, Circuit Judges.
Manion, Circuit Judge. Mark Mason is a black man
who worked as a dispatcher (or
"telecommunicator") for the Department of Public
Safety (the campus police) at Southern Illinois
University (SIU). His health problems frequently
caused him to miss work for substantial periods
of time, and these absences either caused or
greatly contributed to his supervisor’s dislike
of him. Mason thought this dislike was racially
motivated, so after he was fired, he sued SIU
under Title VII. A jury found for SIU, and Mason
appeals, contending that the district court erred
in excluding evidence of racial epithets that
some of his coworkers allegedly made when neither
he nor his supervisor were around. Because the
district court did not abuse its discretion, we
affirm.
I. Background
Mark Mason worked as a dispatcher at SIU from
1983-1998. His health-related absences from work
(which had always been considerable) increased
substantially after 1991 when Corporal Carol
Kammerer, a white woman, became his supervisor.
One absence lasted nine months, from September,
1994 to May, 1995. When Mason returned to SIU, he
worked for about six weeks, took extended sick
leave again in July, 1995, and never returned to
work. While on his latest leave, Mason filed a
worker’s compensation claim against SIU for
stress; he also unsuccessfully sought other
employment with SIU. Mason settled this claim in
the summer of 1998. As part of the settlement,
SIU offered him his job back, but Mason refused
this offer. Under the civil service rules, SIU
had two options at this point--Mason could resign
or be terminated. Mason refused to resign, so he
was fired.
According to Mason, his refusal to return to
work was due to the rocky relationship he had
with Kammerer. He claimed she was abusive toward
him, such as by allegedly calling him "stupid"
and "dumb" when he would incorrectly perform a
task. (Kammerer denies referring to Mason ever in
this fashion.) Even though Kammerer never made
racist remarks in Mason’s presence, let alone to
him, Mason believed Kammerer treated him badly
because he was black and that this treatment
exacerbated his health problems, which ultimately
prevented him from working for her. He sued SIU
under Title VII, claiming racial discrimination
in the form of a hostile work environment. The
case proceeded to trial, where the district court
excluded racial epithets allegedly made by
Mason’s coworkers which neither Mason nor
Kammerer ever heard. Mason lost his case before a
jury and appeals the district court’s evidentiary
ruling, asking for a new trial. Mason now claims
that not only his supervisor but also his
coworkers created the allegedly hostile work
environment. Because there is a distinction in
the legal analysis, we first need to resolve this
dispute.
A. Mason’s Title VII Claim
A close examination of Mason’s complaint
discloses that he alleged only that his
supervisor, not his coworkers, was racially
harassing him. The relevant paragraphs of the
complaint are as follows:
21.During the course of his employment with the
Defendant, the Plaintiff was subjected to
unwelcome harassment by his supervisor,
including:
a. Exposure to stress and harassment
b. Exposure to racial epithets
c. Being passed over for promotions and overtime.
* * *
24. That the actions of the Plaintiff’s supervisor
were performed as an agent of the Defendant
herein and in the course of the supervisor’s
duties as supervisor.
(Emphasis added.) Mason never amended this
complaint to include a claim for coworker-created
hostile work environment. Nor did he otherwise
notify SIU that he was complaining of anything
other than a supervisor-created hostile work
environment./1
Even at trial Mason continued to insist that
Kammerer was the source of his problems. He
stated that in 1992 he met with the then-newly
hired head of the Public Safety Department, Sam
Jordan, to complain that Kammerer was being
"racist towards me" by "calling me dumb and
stupid and aggravating me." He later complained
to Jordan that he had been having "an ongoing
problem" with Kammerer "harassing me, and I felt
that she was constantly picking on me because I’m
black." After years of working underneath
Kammerer, Mason testified that his health began
to deteriorate. He felt that working for her "was
aggravating, humiliating. It was hostile, and I
wanted to get [out] from under her." He stated
that while he had experienced some health
problems before working for Kammerer, his
symptoms increased substantially once she became
his supervisor. Mason stated that he had talked
with "Jordan many times because it appeared to be
a constant problem that I was having with
Kammerer." As a result, Mason talked with Jordan
about getting another job in the department, and
he made other efforts "to try to get away from
Corporal Kammerer’s supervision." Mason went on
disability leave in late 1994 because Kammerer’s
behavior was harming his health:
[W]orking at the Department of Public Safety--
excuse me--working at the Department of Public
Safety under Corporal Carol Kammerer was causing
too much problems on my health and no--the
university wasn’t taking no [sic] actions to
correct the situation.
(Emphasis added.) He told the jury that after he
"had been out of the work environment under
Carol--under Corporal Kammerer for several
months," his "condition started to improve." He
then briefly mentioned that when he returned to
work in May of 1995, his white coworkers "acted
isolated towards me," not talking "to me like
they generally did. Sometimes I would speak to
them and they wouldn’t even speak back to me."
Mason said that when he returned to work for the
last time, Kammerer "started treating me the way
she normally treated me. Yell at me, scream at
me, holler at me. [sic]" According to him, as of
the trial, Kammerer was still "in charge of
telecommunicators" and he was not "aware of any
action that’s been taken against her" in response
to his complaints about her.
On cross-examination, Mason confirmed that his
harassment claim was based on Kammerer’s conduct,
not that of his coworkers or anyone else:
Q. And you were offered the position you were
offered your position to return to once you had
completed [maximum medical improvement as part of
Mason’s workman’s compensation claim]?
A. That’s correct.
Q. And you said you weren’t going to return to the
telecommunicator’s job at SIU; is that right?
A. No. I said I do not want to return back to work
that position working under Corporal Carol
Kammerer.
Q. Oh. You would have worked in the radio room,
but just under another supervisor?
A. If they would have allowed me.
Q. So it wasn’t the radio room? It was Kammerer?
A. Yes.
(Emphasis added.) Mason twice repeated that
Kammerer was the cause of his problems./2
The focus of this testimony regarding
mistreatment by his supervisor is important
because a probationary dispatcher named Patty
Shands worked in the telecommunications division
for about five months during the spring and
summer of 1995. She became friends with Mason and
was called to testify on his behalf regarding her
observations of the conduct of Kammerer and other
employees in the division. A key issue at trial
and on appeal is the extent to which the judge
limited her testimony.
B. Shands’ Testimony and Mason’s Offer
of Proof
After he testified, Mason called Carol Kammerer
to the stand who, not surprisingly, denied
calling Mason "dumb" or "stupid" or using a
racial epithet to refer to him or any employee.
She denied ever hearing a subordinate make a
racially derogatory remark, and stated that she
would not allow a subordinate to make such a
remark. Mason attempted to ask Kammerer whether
she knew that Patty Shands had alleged that a
white dispatcher had "used the word ’n’ word." At
this point, SIU moved to bar Shands’ testimony
concerning actions by coworkers, arguing that it
was not relevant to the claim of supervisor-based
harassment that Mason had consistently alleged in
his pretrial filings and had just laid out in his
own testimony. The district court concluded that
Mason was making a claim of a racially hostile
work environment caused by his supervisor, Carol
Kammerer. As a result, it would allow Shands to
testify to anything she heard Kammerer say. And
in order to allow Mason to show that Kammerer, as
the racial harasser, was responsible for creating
the work environment in general, the district
court would also allow Shands to testify to
anything that coworkers said in Kammerer’s
presence (although the court thought even this
might be crossing the line into irrelevant
testimony). In other words, while Mason’s claim
was predicated on Kammerer’s behavior, the court
would allow Mason to develop a theory in which
her behavior extended to approving the alleged
racist conduct of subordinates.
Shands took the stand and testified that once
when Kammerer was upset because Mason’s health-
related absence forced her to re-do the work
schedule, Kammerer referred to Mason as Jordan’s
"token nigger" in front of Shands and two
coworkers. Shands’ testimony then violated the
court’s order when she stated that after Kammerer
left the room, one of her two coworkers referred
to Mason in the same way. SIU objected, and the
district court instructed the jury to disregard
this piece of testimony. Shands again went beyond
the court’s ruling by stating that before
Kammerer allegedly referred to Mason in that
derogatory manner, Shands had never heard any of
her coworkers refer to him that way. Then she
testified about another time when Kammerer was
upset at having to alter the work schedule and a
coworker allegedly referred to Mason as a "token
nigger" in front of Kammerer; Kammerer did not
react to (let alone discipline) the coworker for
doing so. Finally, Shands testified that after
she became friends with Mason, her coworkers
"blackballed" her. She also noted that after she
was fired from the communications division in
July, she filed a complaint with SIU discussing
"racial issues" in the Department of Public
Safety, and she subsequently filed a charge with
the EEOC claiming that she was fired because she
was friends with Mason.
Mason’s counsel made an offer of proof as to
what Shands’ testimony would have included had
the court not restricted her. He said that Shands
would have testified that her coworkers: 1) used
racial epithets to refer to black people
generally or to Mr. Mason in particular, and one
coworker called her a "nigger-lover"; 2) told her
"not to even mention Mark Mason’s name in front
of Corporal Kammerer" and that "if she did she
would have to look for another job"; 3) told her
that "Kammerer hates Mark Mason," was "sick of
him and doesn’t like having to work with him";
and 4) increased their usage of racial epithets
dramatically after Kammerer used a racial epithet
to refer to Mason. The district court had
excluded the proposed testimony because it would
be confusing to the jury and prejudicial; the
court was trying "a lawsuit involving Mark Mason
and SIU, and then we jump the track and we start
trying Patty Shands’ case." It also thought the
proposed testimony would be irrelevant: Mason’s
claim concerned a "hostile work environment
brought about by a supervisor, and all the
testimony that you were wanting to bring out and
have made the offer of proof on does not
necessarily tie itself to Ms. Kammerer who is the
supervisor involved." And the court considered
the testimony to be cumulative because there was
already substantial evidence showing Kammerer’s
hostility. Finally, the court seemed to question
whether Shands’ testimony would be perjurious.
She had executed an affidavit stating that she
never heard anyone in the Department of Public
Safety use a racial term and that she never heard
anyone in the Department use such a term about
Mason./3 The jury returned a verdict for SIU.
Mason now challenges the district court’s
evidentiary ruling that limited Shands’
testimony.
II. Discussion
We review the district court’s decision to
exclude testimony for an abuse of discretion.
Palmquist v. Selvik, 111 F.3d 1332, 1339 (7th
Cir. 1997). An "appellant carries a heavy burden
in challenging a trial court’s evidentiary
rulings" because of the "special deference" a
reviewing court gives them. Id. Furthermore, even
if Mason meets this heavy burden, we do not
reverse a jury verdict if the error is harmless;
the error must have affected the party’s
substantial rights. See Fed. R. Civ. P. 61
(disregard errors that do not affect "substantial
rights"); Fed. R. Evid. 103(a) (error must affect
"a substantial right of a party"); Jones v.
Lincoln Elec. Co., 188 F.3d 709, 725 (7th Cir.
1999) (citing Fed. R. Civ. P. 61 and Fed. R.
Evid. 103) (reversal is required and a new trial
is warranted only if error affected a party’s
substantial rights). The party must also have
made the substance of the evidence known to the
court by an offer of proof or otherwise. Fed. R.
Evid. 103(a); United States v. Cleggett, 179 F.3d
1051, 1055 (7th Cir. 1999). The offer of proof
(or the record elsewhere) must show "the grounds
for admissibility, what the proponent expects to
prove by the excluded evidence, and the
significance of the excluded testimony."
Cleggett, 179 F.3d at 1055; see also United
States v. Vest, 116 F.3d 1179, 1189 (7th Cir.
1997).
The law against discrimination in the workplace
is well settled. Title VII provides that it
"shall be an unlawful employment practice for an
employer . . . to fail or refuse to hire or 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 . . . ." 42 U.S.C. sec. 2000e-
2(a)(1). An employer may be liable for
discrimination within the meaning of Title VII if
an employee is subject to a hostile work
environment based on his race. To recover, an
employee must show that: 1) he was subject to
unwelcome harassment; 2) the harassment was based
on his race; 3) the harassment was severe and
pervasive so as to alter the conditions of the
employee’s environment and create a hostile or
abusive working environment; and 4) there is a
basis for employer liability. See Parkins v.
Civil Constructors of Ill., Inc., 163 F.3d 1027,
1032 (7th Cir. 1998). The employer is essentially
strictly liable if the employee’s supervisor
created the hostile work environment. See
Burlington Indus., Inc. v. Ellerth, 118 S. Ct.
2257, 2270 (1998); Faragher v. City of Boca
Raton, 118 S. Ct. 2275, 2292-93 (1998)./4 The
employer is liable for a hostile work environment
created by the employee’s coworkers, however,
only when the employee shows that his employer
has "been negligent either in discovering or
remedying the harassment." Parkins, 163 F.3d at
1032.
A. Mason’s Claim
In his reply brief, perhaps recognizing the
problems with using coworker conduct to prove a
claim of supervisor harassment, Mason contends
that he properly presented a claim based on
coworker harassment in the first place, in
addition to his claim based on supervisor
harassment. If so, he now contends that Shands’
excluded testimony is relevant to proving the
coworker aspect of his claim. The district
court’s accurate conclusion that Mason only
presented a claim for supervisor harassment was
clearly critical to its evidentiary ruling.
Because Mason does not dispute this conclusion
until his reply brief, this new argument is
waived. See Holman v. Indiana, 211 F.3d 399, 405
n. 5 (7th Cir. 2000).
Assuming this argument were preserved, it is of
course true, as Mason notes, that Fed. R. Civ. P.
8(a) only requires a short and plain statement
that will provide the defendant with fair notice
of his claim. See Ryan v. Mary Immaculate Queen
Ctr., 188 F.3d 857, 860 (7th Cir. 1999). But as
we have noted, Mason’s complaint does not fairly
notify SIU that he is claiming coworker
harassment. Although he attempts to magnify the
meaning of paragraph twenty-three of his
complaint,/5 it is not only silent on coworker
conduct, but it is inextricably sandwiched
between two paragraphs specifically discussing
supervisor harassment. Mason might have been able
to shoehorn a claim for coworker harassment into
paragraph twenty-three for purposes of surviving
a motion to dismiss by alleging hypothetical
facts about harassing coworkers. But even then
the hypotheticals would have to be consistent
with his allegations of supervisor harassment.
See Holman, 211 F.3d at 405. Aside from the fact
that he has produced no evidence of his being
harassed by coworkers, Mason has consistently
represented that he was claiming supervisor
harassment. He did so during discovery, and he
repeatedly testified at trial that this was
indeed his claim. His one brief comment
concerning his coworkers-- that while they
"generally" talked to him, after he returned from
his nine-month absence "sometimes" they wouldn’t-
-is hardly sufficient, given the overwhelming
thrust of his testimony, to place SIU on notice
that he was (now) claiming an additional type of
hostile work environment. Certainly by the time a
plaintiff testifies in his case in chief, a
defendant is entitled to rely on the notice that
the complaint has given him when its allegations
are confirmed by the plaintiff’s own trial
testimony. See Vidimos, Inc. v. Laser Lab Ltd.,
99 F.3d 217, 222 (7th Cir. 1996). To allow Mason
to introduce evidence of alleged coworker
harassment via Shands’ testimony would be
allowing him to amend his complaint to include a
new claim based on coworker harassment. See
Chaveriat v. Williams Pipe Line Co., 11 F.3d
1420, 1428-30 (7th Cir. 1993). At this late stage
of the case, the district court did not abuse its
discretion in not allowing Mason to do so. Id. at
1430 (court does not abuse its discretion when it
prevents unfair prejudice to defendant from
admitting evidence that would inject a new claim
late in the proceedings)./6
B. Analyzing the Totality of
Circumstances
As shown above, this case involves allegations
of harassment by a supervisor. Yet in his initial
appellate brief, Mason essentially argues that
all evidence of harassment is always relevant,
regardless of the type of claim the plaintiff is
asserting, and that therefore all of Shands’
testimony was relevant and admissible. This broad
assertion is not correct.
Harassment "by co-workers differs from
harassment by supervisors." Parkins, 163 F.3d at
1032. As a result, an "employer’s liability for
hostile environment sexual harassment depends
upon whether the harasser is the victim’s
supervisor or merely a co-employee." Id. This
same distinction applies in a racial harassment
case when determining employer liability.
If a plaintiff claims that he is suffering a
hostile work environment based on the conduct of
coworkers and supervisors, then under the Supreme
Court’s totality of circumstances approach,
Farragher, 118 S. Ct. at 2283 (citing Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23 (1993)),
all instances of harassment by all parties are
relevant to proving that his environment is
sufficiently severe or pervasive. See Williams v.
General Motors Corp., 187 F.3d 553, 559, 562-63 &
n.4 (6th Cir. 1999) (plaintiff’s claim was based
on the behavior of supervisors and coworkers and
conduct of both types of harassers was relevant);
Silk v. City of Chicago, 194 F.3d 788, 803, 806
(7th Cir. 1999) (assuming there is an ADA hostile
work environment claim, actions of both coworkers
and superiors are relevant to determining whether
environment was severe or pervasive). Courts
should not carve up the incidents of harassment
and then separately analyze each incident, by
itself, to see if each rises to the level of
being severe or pervasive. Williams, 187 F.3d at
561-62.
That does not mean, however, that courts can
automatically lump into the analysis of the
behavior by one type of harasser behavior by a
different type of harasser when the plaintiff is
not pursuing a claim based on the latter’s
conduct. Cf. id. at 562 ("District courts are
required to separate conduct by a supervisor from
conduct by co-workers in order to apply the
appropriate standards for employer liability.");
Parkins, 163 F.3d at 1032 (liability depends on
whether harassment is by supervisor or
coworkers). If a plaintiff pursues a hostile work
environment claim based on the behavior of a
supervisor, evidence of harassment by a coworker
logically must be tied somehow to the supervisor
for it to be relevant and admissible. Otherwise,
including such evidence could confuse the jury
and prejudice the defendant. See Fed. R. Evid.
403./7 Thus, when considering the totality of
the circumstances the district court here did not
abuse its discretion when it limited Shands’
testimony to behavior and comments attributed to
Kammerer, or to those attributed to coworkers
while Kammerer was present.
C. Supervisor Harassment and Shands’ Excluded
Testimony
Mason also argues that Shands’ excluded
testimony is relevant to his claim of a
supervisor-created hostile work environment to
show the pervasiveness of the environment or to
show Kammerer’s "real" motives for her ostensibly
"race-neutral" treatment of him. In some
"supervisor" cases, evidence of coworker behavior
might be relevant to show pervasiveness or
motive. But Mason did not make these arguments
until his reply brief, so they are waived. And
even if he had preserved them, in this case, as
we shall see, these arguments are re-packaged
attempts to use incidents of coworker behavior to
establish a claim that is based on supervisor
harassment. Furthermore, neither Mason nor
Kammerer were even present for the alleged
incidents of coworker harassment that Shands’
testimony would purportedly expose. Thus, Mason
is trying to hold SIU strictly liable (by
nominally proceeding under a claim of supervisor
harassment) by using evidence of coworker
harassment of which neither he nor the supervisor
in question were even aware. Mason cannot
bootstrap coworker behavior onto his claim of
supervisor harassment.
As to pervasiveness, Mason argued to the
district court that the conduct of his coworkers
is relevant to some sort of derivative supervisor
harassment theory under which Kammerer, through
racist behavior, "sets the tone" of the
department, signaling to subordinates that it is
okay if they harass Mason, their coworker. Cf.
Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.
1996) (noting possibility of a Title VII
retaliation theory where a supervisor permits a
plaintiff’s "fellow employees to punish her for
invoking her rights under Title VII"). As we
understand Mason’s theory of "supervisor"
harassment, the actions of the coworkers are
deemed to be the actions of the supervisor for
which the company is then (strictly) liable. This
appears to be another "bootstrapping" effort, but
since Mason has failed to pursue this argument on
appeal, we need not wrestle with it.
Whatever supervisor-based theory Mason might
wish to employ to establish pervasiveness, there
is a clear problem with using Shands’ excluded
evidence of coworker comments: Mason never knew
of these comments. Mean-spirited or derogatory
behavior of which a plaintiff is unaware, and
thus never experiences, is not "harassment" of
the plaintiff (severe, pervasive, or other).
Thus, for alleged incidents of racism to be
relevant to showing the severity or pervasiveness
of the plaintiff’s hostile work environment, the
plaintiff must know of them. See Ngeunjuntr v.
Metropolitan Life Ins. Co., 146 F.3d 464, 467
(7th Cir. 1998) (racial comments made outside
employee’s presence did not show hostile
environment); Johnson v. City of Fort Wayne, 91
F.3d 922, 938 & n.8 (7th Cir. 1996) (harassing
conduct must be directed at employee in order to
show racially hostile environment); see also
Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th
Cir. 2000) (hostile actions of which plaintiff
was unaware were not relevant to her claim of a
hostile work environment); Carter v. Chrysler
Corp., 173 F.3d 693, 701 n.7 (8th Cir. 1999)
(Plaintiff knew of graffiti "during the time in
which she experienced harassment. It is thus
relevant on whether a hostile work environment
existed . . . ."); cf. Hardin v. S.C. Johnson &
Son, Inc., 167 F.3d 340, 347 (7th Cir. 1999)
(doubting the admissibility "of odious
statements" plaintiff never heard to show racial
motive)./8
Here, it is undisputed that no one ever made
such comments to Mason or in his presence, and in
his offer of proof, Mason’s attorney did not
advise the court that Shands would testify that
she had ever told Mason about his coworkers’
alleged use of racial epithets. Nor is it
otherwise apparent from the record that Shands
told Mason about them (or that he otherwise knew
of them)./9 Mason’s offer of proof thus failed
to advise the district court of how Shands’
testimony would be of significance in terms of
establishing pervasiveness. United States v.
Peak, 856 F.2d 825, 832 (7th Cir. 1988) ("the
adequacy of [an offer of proof] is an essential
prerequisite to a finding of error").
As we have said, "it is up to the party
challenging exclusion to formulate an offer which
satisfies all needs. One of the needs in this
case was some indication" that, at a minimum,
Mason was aware of these epithets. United States
ex rel. Veal v. DeRobertis, 693 F.2d 642, 648
(7th Cir. 1982); see also United States v. King,
75 F.3d 1217, 1223 (7th Cir. 1996) (requiring
specificity in offer of proof and rejecting
"blanket" offers). Mason acknowledged at oral
argument that his "counsel had an opportunity to
make a full and complete offer of proof." United
States v. Schroeder, 902 F.2d 1469, 1471 (10th
Cir. 1990). There is no reason why he could not
have offered to have Shands prove that she told
Mason about the racial epithets his coworkers
allegedly used when he wasn’t around. Because we
do not know whether Shands was in fact prepared
to so testify, we cannot assess whether the
exclusion was "prejudiciously erroneous." See
Cleggett, 179 F.3d at 1055; King, 75 F.3d at
1223; United States v. Alden, 476 F.2d 378, 381
(7th Cir. 1973).
Mason also argues that the excluded evidence of
coworker comments is relevant to show that
Kammerer’s racially neutral but negative
treatment of him was based on his race. See
Carter, 173 F.3d at 701. More specifically, it
would show that Kammerer did not put a stop to
Mason’s coworkers’ alleged racist comments
because of her own racial animus. We disagree
with the relevance of such evidence here. The
district court allowed into evidence anything
racial that Kammerer allegedly said (even when
Mason was not around), as well as anything racial
that coworkers allegedly said in Kammerer’s
presence (again, even when Mason was not there).
What Mason seeks to admit to establish Kammerer’s
motives are statements that coworkers allegedly
made when she was not there. While evidence of
coworker behavior of which the supervisor was
aware might be relevant to show the supervisor’s
motives, Carter, supra, there has to be proof
that she was aware of or that she at least had
some connection to the behavior. Because Kammerer
was not present on those occasions when coworkers
allegedly made the comments in question, the
alleged comments are not relevant to showing her
motives. Cf. Hunt v. City of Markham, Ill., 219
F.3d 649, 652 (7th Cir. 2000) ("the fact that
someone who is not involved in the employment
decision of which the plaintiff complains
expressed discriminatory feelings is not evidence
that the decision[maker] had a discriminatory
motivation"); Smith v. Leggett Wire Co., 220 F.3d
752, 759 (6th Cir. 2000). Therefore, the district
court did not abuse its discretion in excluding
this evidence.
D. Harmless Error
Assuming it was error to exclude this testimony,
the exclusion did not deprive Mason of a
"substantial right" (as required by Fed. R. Civ.
P. 61 and Fed. R. Evid. 103(a)) in that we do not
think the outcome would have been different but
for the excluded testimony. Jones, 188 F.3d at
725. If Shands had attempted to testify that when
neither Kammerer nor Mason were around her
coworkers sometimes used racial epithets, SIU
would have attempted to impeach her with her
affidavit in which she swore unequivocally that
at no time did she ever hear any racial epithets
at SIU, including ones referring to Mason. As it
stood, the jury heard Patty Shands’ accounts of
racial epithets in the Public Safety Department;
it simply did not believe her. We doubt her
credibility with the jury would have improved
much once SIU cross-examined her with her
unequivocally contrary affidavit.
Shands’ remaining testimony was about coworkers’
statements that Kammerer disliked Mason. Mason
testified to this at great length. Thus, to say
that this testimony would be cumulative is an
understatement. The jury was already left with
this impression; it just didn’t believe that
racial prejudice caused it. It is unlikely that
excluding such cumulative evidence would have
caused the jury to find differently. Palmquist,
111 F.3d at 1341 (harmless error to exclude
cumulative evidence); cf. Bankcard America, Inc.
v. Universal Bancard Systems, Inc., 203 F.3d 477,
482 (7th Cir. 2000) (not plain error to admit
cumulative evidence).
III. Conclusion
The district court did not abuse its discretion
in not allowing Mason effectively to amend his
complaint during the trial to present an
additional claim for racial harassment based on
the actions of his coworkers. Furthermore, given
that Mason presented a claim for harassment based
on the conduct of his supervisor, the district
court did not abuse its discretion in not
admitting evidence of comments that coworkers
allegedly made when neither Mason nor his
supervisor were present. Finally, even had the
court abused its discretion in excluding this
evidence, the error would have been harmless.
For the foregoing reasons, then, the judgment of
the district court in favor of the defendant is
AFFIRMED.
/1 For example, in his brief in support of his
motion to compel, Mason stated that he was
claiming that Kammerer was subjecting him to a
hostile work environment. See Plaintiff’s
Memorandum Supporting His Motion To Compel
Defendant To Produce Documents at 1 ("Plaintiff
alleges that Kammerer repeatedly made racially
harassing comments to him and about him, harassed
him because of his race, and discriminated
against him because of his race."); id. at 4
("[T]he documents would be crucial for plaintiff
to be able to prove that Kammerer harassed him
because of his race."). As a result, the district
court viewed Mason as claiming a supervisor-
created hostile work environment. See Memorandum
And Order (Plaintiff’s Motion to Compel) at 1-2
("Mason alleges that Kammerer repeatedly made
racially harassing comments to him and about him
and otherwise harassed and discriminated against
him because of his race."); id. at 2 ("Mason has
sued under Title VII . . . alleging that . . .
Carol Kammerer racially harassed him and made
racially derogatory comments to and about him.").
/2 For example, Mason testified that:
A. I believe I said [in writing to SIU’s Director
of Human Resources] I would like to go back to
work, but I did not want to go back to work under
Carol Kammerer. . . . I was expressing the fact
that I wanted to work. I didn’t want to be off
work, but I didn’t want to have to work under
Carol Kammerer and [sic] aggravated, harassed,
treated unfair--. . . . Being unfair and her
being racist towards me.
Q. So if Lieutenant Doan had taken over
responsibilities for supervising the radio room,
that would have been fine?
A. Sure. That would have been fine. The job was
not the problem. Corporal Kammerer was the
problem with me.
(Emphasis added.)
/3 Specifically, Shands swore in the following
paragraphs of her affidavit that:
4. At no time during my employment in the
Department of Public Safety at Southern Illinois
University did I personally hear any police
officer or supervisor in the Department of Public
Safety make any racially derogatory remark.
5. At no time during my employment in the
Department of Public Safety at Southern Illinois
University did I personally hear any police
officer or supervisor in the Department of Public
Safety make any racist remark concerning Mark
Mason.
/4 If the employee does not suffer a "tangible
employment action" as a result of such
harassment, the employer may raise an affirmative
defense comprising two elements: "(a) that the
employer exercised reasonable care to prevent and
correct promptly [the] harassing behavior, and
(b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or
corrective opportunities provided by the employer
or to avoid harm otherwise." Ellerth, 118 S. Ct.
at 2270; Farragher, 118 S. Ct. at 2293. Here, SIU
has not raised the affirmative defense, and it is
thus waived.
/5 "That the harassment had the effect of
unreasonably interfering with Plaintiff’s work
performance, and creating an intimidating,
hostile and offensive work environment that
seriously affected the psychological well-being
of the Plaintiff." Complaint, para. 23.
/6 Mason argues that SIU "was fully aware of
plaintiff’s claim of coworker harassment" because
it did not object to a proposed jury instruction
regarding coworker harassment that Mason had
drafted and that the parties had submitted as
part of their joint instructions. This contention
was also not raised until Mason’s reply brief,
and to the extent he is contending that this
submission implies SIU’s agreement under Fed. R.
Civ. P. 15(b) to amending the pleadings, we
disagree. See Rosario v. Livaditis, 963 F.2d
1013, 1022 n.4 (7th Cir. 1992). SIU’s repeated
objections to Shands’ proposed testimony as not
relevant to Mason’s claim of supervisor
harassment belie any notion that SIU tacitly
consented to Mason bringing in at trial an
additional claim based on coworker harassment.
Contrast Whitaker v. T. J. Snow Co., 151 F.3d
661, 663 (7th Cir. 1998) ("Because both parties
squarely addressed the strict liability theory in
their summary judgment briefs, the complaint was
constructively amended to include that claim.").
/7 While in Williams, upon which Mason relies, the
Sixth Circuit recognized that courts must
separate supervisor and coworker conduct "in
order to apply the appropriate standards for
employer liability," id., it stated that it is
not appropriate to separate the conduct according
to the type of perpetrator to determine whether
the harassment is severe or pervasive. See 187
F.3d at 562 & 563 n.4. Williams is
distinguishable from this case in that the
plaintiff there was claiming a hostile work
environment based on the actions of both
supervisors and coworkers, see id. at 559,
whereas Mason has pursued only a supervisor-based
hostile work environment claim.
/8 We have stated, however, that with respect to a
hostile work environment claim that is predicated
on coworker behavior, the pervasiveness of
coworker conduct could show the employer’s
constructive notice of the harassment (presumably
even if the plaintiff is not present). Wilson v.
Chrysler Corp., 172 F.3d 500, 509 (7th Cir.
1999).
/9 The only indication in the record that Mason and
Shands might have discussed their coworkers’
alleged comments is Mason’s one-word mention
during his testimony that he and Shands had
talked about "discrimination." But this solitary
reference is too cryptic to have apprised the
district court (or us) that Shands indeed told
Mason of these statements. And even if Shands
told Mason about some of these comments, such
"through the grapevine" or "second-hand" conduct
is not sufficiently severe or pervasive so as to
create a hostile work environment. See Savino v.
C.P. Hall Co., 199 F.3d 925, 933 (7th Cir. 1999);
Adusumilli v. City of Chicago, 164 F.3d 353, 362
(7th Cir. 1998). And if we further assume that
Shands did relay these incidents to Mason, we do
not know how many times she did so; an isolated
(and in this case second-hand) comment also does
not create a severe or pervasive environment. See
Farragher, 118 S. Ct. at 2283-84 ("offhand
comments . . . will not amount to discriminatory
changes in the ’terms and conditions’ of
employment’"); see also Ngeunjuntr, 146 F.3d at
467 (isolated racial comments did not show a
severe or pervasive environment).
RIPPLE, Circuit Judge, concurring. In this case,
an employee seeks to establish a case of racial
harassment at the hands of a supervisor. In order
to prove his case before a jury, the employee
sought to establish that the supervisor made
racially derogatory remarks about him before
other employees and that, as a consequence of
these remarks, there was a perceptible change in
the manner in which his coworkers treated him.
The district court admitted all behavior and
statements of the supervisor and all behavior and
statements of the coworkers when the supervisor
was present. It refused to admit, however,
behavior and statements of the coworkers when the
supervisor was not present.
It is important to note what the court does not
decide. The court does not decide that, as a
general principle, statements made by coworkers,
when the supervisor is not present, are
inadmissible to prove supervisor harassment of a
worker in violation of Title VII. The court
recognizes that such coworker statements may be
relevant in assessing the conduct of the
supervisor when the circumstances support the
inference that there is a causal relationship
between the supervisor’s statements and the
behavior or statements of the coworkers. In
acknowledging the relevance of such evidence, the
court is recognizing the practical realities of
the workplace. A supervisor ought not escape the
strictures of Title VII when she sets the stage
for the harassment of a worker and then simply
absents herself when the actual harassment takes
place.
As my colleagues note, in proving supervisor
harassment, evidence of coworker behavior can be
relevant to establish the motive of the
supervisor. In order to establish the necessary
link to the supervisor, however, it is necessary
to show, by direct or circumstantial evidence,
that the supervisor was aware, or should have
been aware, that her actions or words would lead
to the behavior and words of the coworkers. To
establish a supervisor’s motive through the words
and actions of the coworkers, it is necessary to
show that the supervisor should have realized
that her activity would lead to such a result.
Here, the employee wished to show that, after the
supervisor made racially derogatory comments in
the presence of coworkers, there was a
substantial increase in racial epithets in the
coworkers’ parlance and that he was isolated by
those workers in the daily activities of the
workplace. My colleagues believe that the
district court was on solid ground in declining
to admit the evidence of the coworker’s statement
because there is no evidence that the supervisor
was present when the statements were made. It is
not clear, however, why the supervisor’s presence
is necessary to establish the relevance of the
statements to the issue of the supervisor’s
intent. The defense wanted to establish that, in
making racially charged statements in front of
the coworkers, the supervisor was sending a
signal that treating the plaintiff in a racially
discriminatory matter was acceptable conduct in
which the workers could indulge safely without
fear of reprisal--a message confirmed when a
coworker did make such a statement before the
supervisor and incurred no sanction.
The actions and statements of the coworkers also
can be relevant, as my colleagues also
acknowledge, on the issue of whether the
harassment was pervasive. Here again, the
employee was entitled to show that the
supervisor’s statements to the coworkers signaled
that the supervisor condoned, or even encouraged,
the racial harassment of the employee.
My colleagues suggest, however, that the remarks
of the coworkers are irrelevant on both the
intent issue and on the pervasiveness issue
because the employee never knew of the comments.
The majority is certainly correct in stating that
mean-spirited or derogatory behavior of which the
plaintiff is unaware and therefore never
experiences are not, in themselves, "harassment."
But, even if these statements were not, in
themselves, instances of harassment, their
occurrence can certainly be relevant for the
limited purposes of showing the intent of the
supervisor in making the statements and to
demonstrate that the statements that were heard
by the employee were the products of an intense
and concerted effort to set the employee apart
from his fellow workers on the basis of his race.
Although the tendered evidence was relevant, the
decision of the district court not to admit it in
this case must be sustained. For the reasons
given by my colleagues, the failure to admit this
material must be considered harmless error.
On this basis, I join the judgment of the court.