Shanoff, Kenneth M. v. State of Illinois ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3325
Kenneth M. Shanoff,
Plaintiff-Appellant,
v.
State of Illinois Department of Human Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4084--James F. Holderman, Judge.
Argued April 4, 2001--Decided July 25, 2001
Before Coffey, Manion, and Diane P. Wood,
Circuit Judges.
Manion, Circuit Judge. Kenneth Shanoff
sued his employer, the Illinois
Department of Human Services ("IDHS"),
alleging that his supervisor subjected
him to a hostile work environment because
of his race and religion, in violation of
Title VII. The IDHS moved for summary
judgment, which the district court
granted, concluding that the supervisor’s
remarks were not severe enough to create
a hostile work environment. Shanoff
appeals. We reverse and remand.
I.
Kenneth Shanoff graduated from the
Chicago Medical School in the 1970’s, but
he is not licensed to practice medicine.
He began working for the IDHS in 1995 as
a staff development and training
coordinator at the John Madden Mental
Health Center ("Madden Center"). In July
1996, Sylvia Riperton-Lewis ("Riperton-
Lewis"), who is black, was hired as a
manager at the Madden Center and became
Shanoff’s direct supervisor.
Shanoff, who is white and Jewish,
alleges that over the next several
months, Riperton-Lewis repeatedly
harassed him with remarks directed at his
race and religion. Riperton-Lewis denies
that she made any of the discriminatory
comments that Shanoff has alleged in this
case. But "[b]ecause the district court
granted summary judgment in favor of the
defendant, we take the facts alleged by
the plaintiff to be true." Adusumilli v.
City of Chicago, 164 F.3d 353, 357 (7th
Cir. 1998).
In the summer of 1996, Shanoff met with
Riperton-Lewis to discuss work matters,
and during that meeting she asked Shanoff
his religion. When Shanoff suggested that
the question was "strange," Riperton-
Lewis responded that she had a "right" to
ask it. Shanoff responded that he is
Jewish. During another meeting in the
fall of 1996 or the winter of 1997,
Riperton-Lewis referred to Shanoff as a
"haughty Jew." When Shanoff told
Riperton-Lewis that her comment made him
angry, she told him that he did not want
to see "this nigger get angry," and then
she lunged at him with a pen, which
Shanoff evaded. Shanoff reported this
incident to Ugo Formigoni, M.D., the
director of the Madden Center and
Riperton-Lewis’s supervisor. Shanoff also
asked Formigoni for a change in
supervisors. According to Shanoff,
Formigoni stated that the incident was
"terrible" and that he would look into
it, but he did not change Shanoff’s
supervisor.
From January through March 1997,
Riperton-Lewis turned down requests by
Madden Center staff for Shanoff to
conduct presentations, and she attempted
to terminate Shanoff’s involvement with
medical students. Shanoff asked Riperton-
Lewis why she did not want him to teach
medical students, which was provided for
in his job description. She responded by
taking Shanoff’s job description out of
her desk, scratching out that provision,
and stating, "Now it’s not." When Shanoff
asked her why she did that, Riperton-
Lewis replied: "I know how to put you
Jews in your place."
In March or April 1997, Shanoff reported
these incidents to Sue Varso, the
Director of Labor Relations at the Madden
Center. He asked for a change of
supervisor and for Riperton-Lewis’s
comments to cease. Varso advised him that
he could file a complaint with the Equal
Employment Opportunity Commission
("EEOC"). According to Shanoff, while he
was considering whether to file a
complaint, "Riperton-Lewis called me into
her office and told me that if I did such
a thing, if I did report her to anyone
outside of the facility, that she had
friends who could take care of me and who
would take care of me." Shanoff
considered those remarks a "direct
threat." He felt trapped and did not
report the incident to anyone.
Riperton-Lewis and Shanoff continued to
disagree about whether he should be
teaching certain courses. In early
September 1997, Riperton-Lewis came into
Shanoff’s office and "told [him] that she
was tired of [him] not knowing [his]
place, and that when was [he] going to
learn that she knew how to handle white
Jewish males like [him]." When Shanoff
asked her to leave his office, she
repeatedly replied "you know damn well I
know how to handle white Jewish males
like you and when are you going to
learn." During that same month, Shanoff
had requested personal days off for Rosh
Hashanah and Yom Kippur. But Riperton-
Lewis denied his request, stating, "I
don’t give a damn about your holidays."
In November 1997, Riperton-Lewis had
ordered Shanoff to no longer participate
in a particular project at the Madden
Center that Shanoff had co-chaired with
Joel Silberberg, M.D., the Center’s
medical director. In response to a
question from Silberberg, Shanoff
notified him of Riperton-Lewis’s order
and, according to Shanoff, Silberberg
apparently discussed the situation with
Riperton-Lewis. Riperton-Lewis then
called Shanoff into her office and
ordered him not to "speak to anyone in
leadership about any matter without her
permission . . . or there would be
trouble." Shanoff had also testified that
Riperton-Lewis then "went into a rage"
and told him that he "didn’t want to see
or wasn’t [he] tired of seeing what an
angry nigger could do." According to
Shanoff, Riperton-Lewis stated that she
"would see to it that she would ruin my
career, and that she was protected and
could do as she pleased." That ended the
conversation.
That same month, Shanoff discussed this
incident with Ms. Lee Steiner, a director
at the Madden Center. Shanoff testified
that he told Steiner that he "felt
totally trapped and that [he] couldn’t
tolerate the situation anymore and [he]
needed her [Steiner’s] help." Shanoff
also discussed the incident with
Formigoni in November 1997. According to
Shanoff:
[Formigoni] said that it was obvious that
there was going to be no resolution to
this and that I needed to think about
looking for other places to work, that
there was no way he was going to change
supervisors and that I needed to look for
a different place to work if I wanted to
be happy, that it was not his job to make
me happy and that I needed to look for
another place of employment.
During the same month, Shanoff also
discussed Riperton-Lewis’s remarks with
Pat Madden, the hospital administrator at
the Madden Center. Shanoff testified
that:
[Pat Madden] said well she could
appreciate the problems I was having,
that Dr. Formigoni was Ms. Riperton-
Lewis’ supervisor, therefore, she could
do nothing and she gave me three options.
One, that I would learn to live with it,
live with the comments and the behaviors;
two would be to find a different place of
employment; or three to sue Ms. Riperton-
Lewis.
Shanoff responded that he "felt totally
trapped in the situation" and "that [he]
couldn’t tolerate--that no one could
tolerate the continual discriminatory
actions and behaviors of a supervisor,
and that suing was not an option because
[he] had already been threatened by Ms.
Riperton-Lewis."
Shanoff also claims that one day in
October or November 1997, when he left
for the day, he forgot to "swipe out"
with a card as required by Madden Center
employees. Riperton-Lewis responded by
reporting that day for Shanoff as an
unauthorized absence ("UA") and docking
half of that day’s pay. Shanoff then
marshaled documentation that he worked
that day and he requested Riperton-Lewis
to delete the UA from his record. But she
denied his request, responding that she
was "tired of dealing with Jews like
you."
In late December 1997, Shanoff again met
with Formigoni to tell him that his
health was failing because of Riperton-
Lewis’s discriminatory comments, actions
and threats. Shanoff also states that a
day or two later, Riperton-Lewis "told me
that I must be pretty stupid because I
would never learn that she was protected,
that Howard Peters [who is black] would
protect her, that he [Peters] was one of
them and that she would see to it that my
white ass--my white Jewish ass would be
kept down." Shanoff replied to Riperton-
Lewis that his health was failing, and
according to Shanoff, "she looked at me
and said, good."
In January 1998, Riperton-Lewis again
said to Shanoff that she no longer wanted
him to teach medical students. According
to Shanoff, she also affirmed that she
"was going to be able to keep my white
Jewish ass down."
Again, in late February or early March
1998, Riperton-Lewis told Shanoff that
"she knew how to handle white Jewish
males, and once and for all that [he]
needed to leave Madden and get out of her
hair." According to Shanoff, he then told
her that "what she had done to me had
made me sick, that I was becoming a
nothing;" to which she replied by
laughing and dismissing him from her
office.
On March 16, 1998, Shanoff voluntarily
took an extended sick leave, using his
accumulated sick leave time. He has
extended that leave into a
medical/disability leave because he is
suffering from depression, and he
continues to be on a medical leave of
absence from the Madden Center.
In October 1998, while Shanoff had been
on leave for several months, Riperton-
Lewis called him at home and told him:
"you either appear before me tomorrow, or
I will take steps to have you
discharged." Shanoff responded that his
physician had already informed her that
he is not able to appear at work. Shanoff
then asked her "why are you being like
this," to which she responded, "I hate
everything that you are."
On October 13, 1998, Shanoff filed a
charge with the Illinois Department of
Human Rights and the EEOC, alleging that
his supervisor discriminated against him
on the basis of his "race (Caucasian)"
and "religion, Jewish." After receiving
his right to sue letter, Shanoff sued the
IDHS in federal court, alleging that he
was discriminated against on the basis of
his race and religion in violation of
Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. sec. 2000e et
seq. The IDHS moved for summary judgment,
arguing that Shanoff’s claim should fail
because he suffered no adverse action,
and that all of his claimed instances of
discrimination that occurred before
December 18, 1997 (300 days before
Shanoff filed his charge with the EEOC)
were barred as untimely. The district
court construed Shanoff’s allegations as
a hostile environment claim, determined
that the incidents of harassment that
occurred before December 18, 1997 were
barred by Title VII’s 300-day statute of
limitations, and granted the IDHS’s
summary judgment motion, concluding that
the incidents of harassment that occurred
within the limitations period were not
severe or pervasive enough to create a
hostile environment. Shanoff appeals.
II.
Shanoff argues that the district court
erred in granting summary judgment for
the IDHS on his hostile environment
claim. We review de novo the district
court’s decision to grant summary
judgment. McPhaul v. Board of Comm’rs of
Madison County, 226 F.3d 558, 563 (7th
Cir. 2000). Summary judgment is proper
when the "pleadings, depositions, answers
to interrogatories, and admissions on
file, together with the affidavits, if
any, show that there is no genuine issue
as to any material fact and that the
moving party is entitled to a judgment as
a matter of law." Fed. R. Civ. P. 56(c).
To survive summary judgment, the
nonmovant must set forth "specific facts
showing that there is a genuine issue for
trial." Fed. R. Civ. P. 56(e). "Factual
disputes are ’genuine’ only ’if the
evidence is such that a reasonable jury
could return a verdict for the [nonmovant].’"
Oest v. Illinois Dep’t of Corrections,
240 F.3d 605, 610 (7th Cir. 2001)
(quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
Title VII makes it "an unlawful
employment practice for an employer . . .
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). The statute
also prohibits an employer from
"requiring people to work in a
discriminatorily hostile or abusive
environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). In
Illinois, an individual must initiate his
hostile environment claim by filing an
EEOC charge within 300 days of the
alleged harassment. Speer v. Rand McNally
& Co., 123 F.3d 658, 662 (7th Cir. 1997);
42 U.S.C. sec. 2000e-5(e). Shanoff filed
his charge on October 13, 1998, so under
the general rule, the conduct that
occurred before December 18, 1997 (300
days prior to the filing of the charge)
would be time-barred. Id. But Shanoff
advances two legal theories to overcome
the statute of limitations. He claims:
(1) that because Riperton-Lewis
threatened to harm him if he filed a
claim, the IDHS should be equitably
estopped from asserting the statute of
limitations; and (2) that the harassing
conduct constituted a continuing
violation that continued to occur within
the limitations period, and thus none of
the conduct is time-barred.
Shanoff first argues that because
Riperton-Lewis of the IDHS threatened to
harm him if he filed a complaint with the
EEOC, he was too frightened to file the
EEOC charge at an earlier date, and thus
the IDHS should be equitably estopped
from raising the statute of limitations
to bar conduct that occurred before
December 18, 1997. Equitable estoppel,
which is also known as fraudulent
concealment, applies if the defendant
"’takes active steps to prevent the
plaintiff from suing in time.’" Jackson
v. Rockford Housing Auth., 213 F.3d 389,
394 (7th Cir. 2000) (quoting Hentosh v.
Herman M. Finch Univ. of Health
Sciences/Chicago Med. Sch., 167 F.3d
1170, 1174 (7th Cir. 1999)). Such active
steps "include hiding evidence or
promising not to plead the statute of
limitations." Jackson, 213 F.3d at 394.
We "have refused to grant equitable
estoppel when the plaintiff retained the
ability, notwithstanding the defendant’s
delay or resistance, to obtain
information necessary to pursue his
claim." Jackson, 213 F.3d at 394.
Shanoff does not allege that he lacked
the knowledge and ability to file his
EEOC charge, as he testified that Sue
Varso advised him on how to file the
charge as early as March 1997. He claims
that he "continued to feel that suing was
not an option" because of Riperton-
Lewis’s threat, in March 1997, that she
had friends who "could take care of" him
if he filed a charge. Thus, according to
Shanoff, the statute of limitations does
not apply to his case because his
supervisor threatened him in March 1997,
and he remained deterred from suing until
approximately 18 months later, in October
1998./1 But Shanoff provides no
explanation as to why he failed to sue
earlier, especially while he was on leave
from the Madden Center (and away from
Riperton-Lewis) since March 1998. Nor
does he explain why he no longer felt
deterred from filing in October 1998.
Moreover, Shanoff presents no authority
by this court (or from any other circuit
court) that holds that equitable estoppel
applies to situations in which the
employee had the knowledge and ability to
file his EEOC charge, but was deterred
because of employer threats of
retaliation. Title VII already makes it
unlawful for employers to retaliate
against employees who assert their rights
under the statute, and thus a remedy
already exists for employees who suffer
an adverse action by their employers
because they pursued a Title VII
claim./2 42 U.S.C. sec. 2000e-3(a);
Adusumilli, 164 F.3d at 362. If we
extended the equitable estoppel doctrine
to Shanoff’s claim, that would permit
Title VII plaintiffs to sidestep the
statute of limitations by simply alleging
that they were threatened by a supervisor
at one time, and thus remained deterred
from filing an earlier charge (even, as
in this case, for as long as 18 months).
But the Supreme Court has emphasized that
we must seriously recognize and apply
statutes of limitations. See Galloway v.
General Motors Service Parts Operations,
78 F.3d 1164, 1165 (7th Cir. 1996) ("the
Supreme Court has told us not to
interpret statutes of limitations in a
grudging, hostile fashion") (emphasis in
original). Statutes of limitations "serve
the important purpose of encouraging the
prompt filing of claims and by doing so
of enhancing the likelihood of accurate
determinations and removing debilitating
uncertainty about legal liabilities." Id.
Thus, we decline to extend the equitable
estoppel doctrine to Shanoff’s claim.
Shanoff also contends that Riperton-
Lewis’s harassing conduct that occurred
before the limitations period is
actionable based on the "continuing
violation" doctrine. The continuing
violation doctrine allows a plaintiff to
get relief for time-barred acts by
linking them with acts within the
limitations period. Selan v. Kiley, 969
F.2d 560, 564 (7th Cir. 1992). Courts
then treat such a combination of acts as
"one continuous act that ends within the
limitations period." Id. We have
recognized that hostile environment
claims "are often different from
complaints about a specific action like a
firing or a refusal to promote that
happen at a particular time. It is
commonly the case that the plaintiff must
instead demonstrate that [the continuing
violation doctrine applies because] the
harm about which [he] is complaining is
part of a pattern of conduct, and [he]
’was reasonable not to perceive [his]
working conditions as intolerable until
the acts of harassment had, through
repetition or cumulation, reached the
requisite level of severity.’" Russell v.
Board of Trustees of the Univ. of Ill. at
Chicago, 243 F.3d 336, 343 (7th Cir.
2001) (quoting DeClue v. Central Ill.
Light Co., 223 F.3d 434, 435-36 (7th Cir.
2000)). But we have placed limitations on
the continuing violation doctrine.
Garrison v. Burke, 165 F.3d 565, 569 (7th
Cir. 1999). A plaintiff asserting a
hostile environment claim cannot
procrastinate. He must demonstrate that
he sued as soon as it was reasonable for
him to conclude that his supervisor’s
harassment had created an intolerable
working environment, or, in other words,
"as soon as the harassment becomes
sufficiently palpable that a reasonable
person would realize [he] had a
substantial claim under Title VII."
Galloway, 78 F.3d at 1166. If the
plaintiff sues in time, then he "can
allege as unlawful conduct the entire
course of conduct that in its cumulative
effect had made [his] working conditions
unbearable." Id. But if the harassing
conduct that occurred before the
limitations period was sufficient to
notify the plaintiff that he had a
substantial claim under Title VII, the
continuing violation doctrine does not
apply and he can only base his claim on
conduct that occurred within the
limitations period. See DeClue, 223 F.3d
at 436.
In this case, the record demonstrates
that the continuing violation doctrine
does not apply. Shanoff testified that in
November 1997, after Riperton-Lewis had
directed several hostile remarks at him,
he reported to Ms. Steiner, Dr.
Formigoni, and Pat Madden that his work
environment had become intolerable.
Moreover, during that same month,
Formigoni and Madden made it clear to
Shanoff that the Madden Center would not
take any further steps to resolve the
situation between him and Riperton-Lewis.
See Galloway, 78 F.3d at 1166 (an
employer’s knowledge of the harassment
and negligent failure to take effective
remedial measures are normally
prerequisites to the employer’s being
made liable for the harassment). Shanoff
was thus on notice in November 1997 that
he had a substantial claim under Title
VII. But he failed to sue until October
13, 1998, which means that the 300-day
limitations period began on December 18,
1997, approximately a month after he knew
that his work environment had become
intolerable and that the Madden Center
would not take any further steps to
resolve the situation. Thus, Shanoff does
not overcome the statute of limitations
dictated by the facts of his case, and
his hostile environment claim will be
based only on Riperton-Lewis’s conduct
that occurred on or after December 18,
1997.
Title VII prohibits an employer from
maintaining a workplace that is permeated
with "discriminatory intimidation,
ridicule, and insult," that is
"sufficiently severe or pervasive to
alter the conditions of the victim’s
employment and create an abusive working
environment." Harris, 510 U.S. at 21
(quoting Meritor Savings Bank, FSB v.
Vinson et al., 477 U.S. 57, 65-67
(1986)). To prevail on his hostile
environment claim, Shanoff must show that
his work environment was objectively
hostile. McPhaul, 226 F.3d at 566. "An
objectively hostile environment is one
that a reasonable person would find
hostile or abusive." Id. at 567 (quoting
Adusumilli, 164 F.3d at 361). "In
determining whether a plaintiff has met
this standard, courts must consider all
the circumstances, including ’the
frequency of the discriminatory conduct;
its severity; whether it was physically
threatening or humiliating, or a mere
offensive utterance; and whether it
unreasonably interferes with an
employee’s work performance.’"
Adusumilli, 164 F.3d at 361 (quoting
Harris, 510 U.S. at 23). We can determine
whether an environment is hostile or
abusive "only by looking at all the
circumstances," as "no single factor is
required." Harris, 510 U.S. at 23.
Regarding the frequency of the
harassment, "there is no ’magic number’
of incidents that give rise to a cause of
action." Doe v. R.R. Donnelly & Sons Co.,
42 F.3d 439, 445 (7th Cir. 1994). But
repeated incidents of verbal harassment
that continue despite the employee’s
objections are indicative of a hostile
environment. See Saxton v. American Tel.
& Tel. Co., 10 F.3d 526, 534 (7th Cir.
1993). In order to support his Title VII
claim, Shanoff may point to Riperton-
Lewis’s facially discriminatory remarks,
as well as any of her remarks and
behavior that may reasonably be construed
as being motivated by her hostility to
Shanoff’s race or religion. See Hardin v.
S.C. Johnson & Son, Inc., 167 F.3d 340,
345 (7th Cir. 1999) ("The complained of
conduct must have either a [religious] or
racial character or purpose to support a
Title VII claim.") (emphasis in
original).
In this case, Shanoff went on medical
leave on March 16, 1998, and thus he
worked at the Madden Center for
approximately four months during the
limitations period (which extends from
December 18, 1997 to October 13, 1998).
During that period, on seven occasions
Riperton-Lewis said things to Shanoff
that he relates to his harassment claim:
(1) in late December 1997, after Shanoff
met with Formigoni to tell him that his
health was failing because of Riperton-
Lewis’s discriminatory conduct, Riperton-
Lewis told Shanoff that he "must be
pretty stupid because [he] would never
learn that she was protected, that Howard
Peters [who is black] would protect her,
that [Peters] was one of them and that
she would see to it that [Shanoff’s]
white ass--[his] white Jewish ass would
be kept down;" (2) during that same
conversation, Shanoff told Riperton-Lewis
that his health was failing, to which she
responded, "good;" (3) in January 1998,
Riperton-Lewis prohibited Shanoff from
teaching medical students; (4) Riperton-
Lewis had also affirmed to Shanoff that
month that she "was going to be able to
keep [his] white Jewish ass down;" (5) in
late February or early March 1998,
Riperton-Lewis again told Shanoff that
"she knew how to handle white Jewish
males, and once and for all that [he]
needed to leave Madden and get out of her
hair;" (6) when Shanoff responded that
her conduct was harming his health and
career, she replied by laughing and
dismissing him from her office; and (7)
in October of 1998, while Shanoff had
been on leave for several months,
Riperton-Lewis called him at home to
demand that he explain his absence, and
when Shanoff asked her "why are you being
like this," she responded, "I hate
everything that you are."
We first note that a reasonable person
may certainly conclude that, from the
context of all of Riperton-Lewis’s
conduct, her remarks that were not
facially discriminatory (her expression
of satisfaction at Shanoff’s failing
health, her order not to teach medical
students, her disregard of, even delight
over, the effect of her harassment on
Shanoff’s health and career, and her
statement, "I hate everything that you
are") were sufficiently intertwined with
her facially discriminatory remarks to be
motivated by her hostility to Shanoff’s
race and religion. It is "[a]gainst this
backdrop [that] we examine [Riperton-
Lewis’s] actions committed within the
limitations period." See Hardin, 167 F.3d
at 345-46. Moreover, although the
harassing conduct that occurred before
the limitations period is time-barred and
not actionable, we may consider that
conduct (the "haughty Jew" remark, the
other facially discriminatory remarks,
threats, and other harassment) to
illuminate the nature of the hostility
involved in the actionable conduct. See
United Air Lines, Inc. v. Evans, 431 U.S.
553, 558 (1977) (time-barred conduct "may
constitute relevant background evidence
in a proceeding in which the status of a
current practice is at issue."); Parkins
v. Civil Constructors of Illinois, Inc.,
163 F.3d 1027, 1036 n. 2 (7th Cir. 1998);
see also Cortes v. Maxus Exploration Co.,
977 F.2d 195, 199-200 (5th Cir. 1992)
(time- barred conduct is relevant and may
be used to illuminate current practices
which, viewed in isolation, may not
indicate discriminatory motives).
In light of all of the conduct in this
case, we conclude that Shanoff was
subjected to six rather severe instances
of harassment during the four months that
he was working at the Madden Center
during the limitations period (and one
more instance of harassment while he was
on leave). Riperton-Lewis made three
remarks (approximately one remark each
month) during the limitations period
(from late December 1997 to March 1998)
in which she specifically referred to
Shanoff by his race and religion in an
intimidating manner. Through these
remarks, she emphatically expressed to
Shanoff her hostility to his race and
religion, and that she was motivated by
that hostility to impede his career
("keep his ass down"). She also took
steps to hinder his career (by
prohibiting him from teaching medical
students) and to drive him from the
Madden Center ("once and for all that
[he] needed to leave Madden and get out
of her hair"). And despite Shanoff’s
repeated objections to her harassment,
Riperton-Lewis made further
discriminatory remarks to him and
expressed her approval of his failing
health and diminished professional
responsibilities. See Saxton, 10 F.3d at
534. She used her supervisory position to
bully, intimidate and insult Shanoff
because of his race and religion, which
is the type of "extreme" harassment that
is the hallmark of a hostile environment
claim. Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998). Riperton-
Lewis’s remarks were not merely
inappropriate, insulting, demeaning or
annoying, and there is no indication that
she was teasing Shanoff or that she
simply lacked a proper sensitivity to his
race and religion. In short, the summary
judgment record (viewing the facts in a
light most favorable to Shanoff) amply
demonstrates that Riperton-Lewis’s
remarks evinced her direct, unambiguous
hostility to Shanoff because of his race
and religion, and that she was motivated
by her hostility to hinder his career at
the Madden Center. Thus, Shanoff has
presented sufficient facts to enable a
reasonable jury to conclude that
Riperton-Lewis’s harassment created an
objectively hostile work environment.
Accordingly, we REVERSE the district
court’s decision and REMAND for further
proceedings consistent with this opinion.
FOOTNOTES
/1 Shanoff also alludes to another threat of "physi-
cal harm" by Riperton-Lewis that occurred some-
time during 1997, but that was not a threat of
retaliation if he filed an EEOC charge.
/2 We also note that if the employer’s threats are
criminal in nature, the employee may seek the
protection of the police and the criminal justice
system.