Nair, Sukumari v. Nicholson, R. James ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3673
SUKUMARI NAIR,
Plaintiff-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 6806—Joan Humphrey Lefkow, Judge.
____________
ARGUED JUNE 2, 2006—DECIDED OCTOBER 2, 2006
____________
Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. This Title VII case charges discrimi-
nation in the form of subjecting the plaintiff to a hostile
working environment because of her national origin, and
also retaliation for her complaining about that discrimina-
tion to the Equal Employment Opportunity Commission.
The district court granted summary judgment for the
defendant.
Nair, the plaintiff, is a nurse in a veterans hospital. In 1995
and again in 2000 she complained to the EEOC about
discrimination by her supervisory employees on the basis of
2 No. 05-3673
her national origin; she was born in India. These matters
were settled in 2001, on what terms we do not know. After
the settlement (though probably before as well), her cowork-
ers insulted, criticized, and tried to avoid her. In the most
serious incident, one of them poked her in the abdomen
with a scissors, though without injuring her.
There is no indication, however, that any of this hostile
behavior was connected with Nair’s being of Indian—or
for that matter of unspecified—foreign origin. Discrimina-
tion on the basis of foreign citizenship is not forbidden by
Title VII. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973);
Fortino v. Quasar Co., 950 F.2d 389, 392-93 (7th Cir. 1991);
Sagana v. Tenorio, 384 F.3d 731, 738 n. 5 (9th Cir. 2004). But
discrimination on the basis of unspecified foreign origin
conceivably might be, as the EEOC believes, EEOC,
“Guidelines on Discrimination Because of National Origin,”
45 Fed. Reg. 85632 (Dec. 29, 1980); EEOC, “Definition of
National Origin Discrimination,” 29 C.F.R. § 1606.1 (2006),
though we can find only one case, and that not an appellate
one, that discusses the possibility. Kanaji v. Children’s
Hospital of Philadelphia, 276 F. Supp. 2d 399, 401-02 (E.D. Pa.,
2003). A defendant might be indiscriminate in his hostility
to persons born abroad who retain traces of foreignness in
their accent or appearance or manners. One can be hated not
because one isn’t a U.S. citizen— maybe he is a U.S.
citizen—but because he’s not a native-born American. (We
don’t know the citizenship of Nair or the other nurses.)
The district judge in the Kanaji case thought that the
Supreme Court’s opinion in Espinoza had resolved the issue
in favor of liability. He said “the Supreme Court provided
[in Espinoza] a[n] . . . example of an illegal employment
practice: ‘hiring aliens of Anglo-Saxon background but
refusing to hire those of Mexican or Spanish ancestry.’ [414
U.S. at 95]. By suggesting that a refusal to hire people of
No. 05-3673 3
‘Spanish-speaking background’ would constitute discrimi-
nation on the basis of ‘national origin,’ or that insisting on
an ‘Anglo-Saxon background’ as a condition of employment
is also prohibited, it is clear that the Supreme Court would
not require that one’s ‘national origin’ be linked directly to
a specific country or nation.” 276 F. Supp. 2d at 401. We
disagree with this characterization of what the Court meant.
To say you hire only people of “Anglo-Saxon” background
is implicitly anti-Semitic, anti-black, anti-Irish, anti-Spanish,
etc., even if you don’t add “and no one who is a native
Spanish speaker [even if he’s fluent in English].” But it is
different if you say you hire only people born in the United
States. That would be the test case of discrimination on the
basis of unspecified foreign origin (“foreignness”).
We need not decide whether such discrimination is
actionable under Title VII, as most of Nair’s coworkers,
including most of those whom she accuses of harassing her,
appear to have been themselves foreign-born. They de-
scribed themselves as “Filipino” or “from the Philippines”;
their English, as we’ll see, is nonstandard; one referred to
her dialect as Tagalog, which is one of the major languages
of the Philippines. And none of them ever referred to Nair’s
national origin, let alone to her being foreign-born or not a
“real American.” Their hostility toward her was based on
her filing incessant complaints with her superiors about the
competence of the other nurses and about their harassing
her. They resented her complaints, naturally; and it was the
complaints rather than Nair’s national origin, so far as
appears, that precipitated the harassment.
It is true that most of the nurses in the unit are of Philip-
pine origin, and Nair apparently is the only one of Indian
origin, and maybe there is animosity between these na-
tionalities. A recent public opinion poll reports that “the
only country with widespread negative view about India’s
4 No. 05-3673
influence is the Philippines, with 57% voting ‘mainly neg-
ative,’ ” BBC World Service, “World ‘Lukewarm to India’s
Role,’ ” Feb. 3, 2006, http://news.bbc.co.uk/2/hi/ south_
asia/4676304.stm; see also “Why Do Filipinos Dislike
Indians??,” soc.culture.indian (Google Group), Feb. 4, 2006,
http://groups.google.com/group/soc.culture.indian/
browse_thread/thread/6dbb2e1adc1a895e/489d80a1461c
f1a4%23489d80a1461cf1a4). But this interesting bit of
background (if true, which we do not know) is not men-
tioned by Nair. And it was Nurse Wszolek, of Polish origin,
who told Nair that Nair was “a paranoid jerk” and “needed
a psych evaluation” and that Wszolek felt sorry for Nair’s
husband. The nurse who told Nair that Nair’s husband
would make money if Nair died was of Philippine origin,
but not the nurse who told Nair that she didn’t want to talk
to Nair any more—she is Chinese, though born in Laos.
So there is no basis in the record for attributing the
conduct of which Nair complains to her national origin or
foreignness. The workers who harassed her, moreover, were
not the supervisors whom she had accused of having
discriminated against her earlier on the basis of her national
origin. Nor can it be inferred from the fact that her com-
plaints concerning the earlier discrimination were settled
that they had any merit—but even if they did, this would
not fill the void of evidence that the later harassment, the
subject of the present suit, arose from Nair’s national origin.
That leaves, however, her claim of retaliation. The main
act alleged to constitute retaliation is the poking her
with the scissors, a battery. We need not decide whether the
nasty comments also rose to the level of retaliation. While it
is now settled that retaliation to be actionable need not take
the form of an adverse employment action, Burlington
Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2409, 2414
No. 05-3673 5
(2006), “petty slights or minor annoyances” won’t do. Id. at
2415. The test is whether the conduct alleged as retaliation
would be likely to deter a reasonable employee from
complaining about discrimination. Id. at 2409, 2415-16.
But the motive must be to retaliate for activity protected by
Title VII, and the only evidence of that to which Nair points
us is two sets of comments that she testified were made to
her by other nurses in her unit: “You keep record of EEO.
You keep record of silly things, keep going to the EEO. You
are a jerk. You are a liar,” and “Oh you write everything
else, every silly thing, and you keep going to the EEO. You
think you are a perfect person.” If this is what the nurses
said, it seems they were confused and thought that because
Nair had filed complaints with the EEOC in the past—the
two complaints that culminated in the 2001 settlement—the
complaints she kept making to supervisors about her
mistreatment by the other nurses were also complaints to
the EEOC. They were not.
Would it be retaliation within the meaning of Title VII to
harass a coworker who you mistakenly thought was com-
plaining to the EEOC about you? Literally not. The statute
forbids an employer “to discriminate against any of his
employees or applicants for employment . . . because he has
opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted or participated in any manner
in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a). The nurses were
retaliating against Nair for complaining about harassment
that was not based—that Nair did not claim was based—on
her national origin, or on “any [other] practice made an
unlawful employment practice by” Title VII.
The point is not that retaliation is actionable only if the
6 No. 05-3673
charge or opposition by the victim of the retaliation has
legal merit. A person who complains about discrimina-
tion cannot be expected to have anything more than an
honest and reasonable belief that there has been a viola-
tion of law; and no more is required to support her retalia-
tion claim. Dey v. Colt Construction & Development Corp., 28
F.3d 1446, 1458 (7th Cir. 1994); Jennings v. Tinley Park
Community Consolidated School District No. 46, 796 F.2d 962,
967 (7th Cir. 1986); Rucker v. Higher Education Aids Bd., 669
F.2d 1179, 1182 (7th Cir. 1982). But there is no indication
that in complaining about the other nurses, Nair believed
they were violating Title VII. If they retaliated against her,
it was for what they thought, but she did not, was a
charge that they were violating Title VII.
Could the statute be stretched to cover such retaliation, on
the ground that it inhibits the filing of legitimate charges of
discrimination? We cannot find any discussion of the
question, but it is another question that we need not try to
answer in this case. For an employer is liable for harassment
by coworkers, whether discriminatory or retaliatory, only if
it negligently fails to take proper preventive or corrective
measures. E.g., Doe v. Oberweis Dairy, 456 F.3d 704, 716-17
(7th Cir. 2006); Knox v. Indiana, 93 F. 3d 1327, 1334-35 (7th
Cir. 1996). There is no evidence of that. Also no evidence to
support Nair’s argument that this is not really a case of
coworker harassment—that supervisors had told her
coworkers that she had complained to the EEOC, told them
in the hope and expectation that they would react to the
information by harassing her. After the incident in which
one of the nurses told Nair that she didn’t wish to speak
with her any more, one of the supervisors called a meeting
with the nursing staff in which, in the words of the district
judge, “some of the other nurses in the telemetry unit asked
that Nair be removed because ‘she writes things, go [sic] to
No. 05-3673 7
the EEO, and she write memos to the nurse manager. She
[is] putting us in trouble. We don’t want to work with her.’
. . . After the meeting, Nair requested a transfer to a differ-
ent department; this request was granted.” So a supervisor
knew that Nair’s coworkers were upset because they
thought she was complaining about them to the EEOC. But
there is no evidence that having learned this, the supervisor
directed the nurses to retaliate against Nair.
So Nair has no case. But we cannot end without noting the
unprofessional conduct of Nair’s lawyer. His opening brief
states that one of Nair’s supervisors told her: “You keep
going to the EEO. Are you planning to go to the EEO? You
handing me these letters and you trying to go to the EEO.
Not do this. That’s why these co-workers get angry to you
and making all these problems. You creating problems . . . .
[Y]ou are the one going to the EEO.” Nair stated this in a
deposition but the district judge struck the statement
because it contradicted Nair’s earlier deposition, in which
when asked whether any manager had made any negative
comments about her EEO complaints she had responded,
“No, she did not directly state to me, but her actions, her
facial expression and the way she take care of things, I can
see.” (Later in her deposition, in a portion not stricken by
the district judge, Nair had attributed the “You keep going
to the EEO,” etc. to her coworkers, not to a supervisor).
Nair’s brief does not challenge the judge’s ruling. Nor
another ruling, excluding a letter that the brief nevertheless
relies on. The defendant’s brief takes the plaintiff to task for
relying on evidence that the judge excluded, as well as for
a number of gross misstatements of the record. The plain-
tiff’s reply brief ignores these charges, and instead continues
to recite excluded or inadmissible testimony. We direct
Nair’s lawyer to show cause within 14 days why he
should not be disciplined for unprofessional conduct before
8 No. 05-3673
this court.
The judgment for the defendant is
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-2-06