Maldonado, Richard F v. Invensys Building Sy , 157 F. App'x 904 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2005*
Decided November 29, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1295
RICHARD F. MALDONADO, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Western Division
v.
No. 01 C 50433
INVENSYS BUILDING SYSTEMS,
INC., Philip G. Reinhard,
Defendant-Appellee. Judge.
ORDER
Richard Maldonado appeals the district court’s order granting summary
judgment for his former employer, Invensys Building Systems (“Invensys”), in this
employment discrimination action. Maldonado, who is Hispanic, began working at
Invensys’s Loves Park manufacturing facility in June 1997, and months later he
was promoted to machine operator. Five times in the next six years, he
unsuccessfully applied for a transfer or promotion. The most recent time,
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1295 Page 2
Maldonado sought a different machine operator position, but instead Invensys
selected a white employee, Tim Gurler, reasoning that he had more experience. As
a machine operator, Maldonado received positive performance reviews, but he was
given a written warning once and suspended three times for using profanity and
being confrontational, argumentative, and disrespectful. Maldonado suggests that
the discipline had more to do with his race than any infractions on his part. He
also alleges that a former supervisor, John Fox, referred to him as a “pepper-belly,”
insulted his predominantly Hispanic neighborhood, and characterized Invensys’s
diversity training as a class about “niggers and pepper-bellies.” After Maldonado
complained, the company investigated Fox, who was ultimately warned to avoid
any discriminatory conduct. No further incidents occurred, and sometime in 1999
Maldonado was assigned to a different supervisor. In addition to Fox, a few of
Maldonado’s co-workers made comments that offended him.
Maldonado sued Invensys for employment discrimination based on his race
and national origin, stating claims for disparate treatment, retaliation, hostile work
environment, and violations of the Equal Pay Act. The district court rejected
Maldonado’s submitted statement of facts for failure to comply with Local Rule 56.1
and deemed admitted the facts in Invensys’s statement, see L. R. 56.1(b)(3). As
relevant to this appeal, the district court granted summary judgment for Invensys
on the discrimination claim because there was no evidence that similarly situated
white employees were treated any better than Maldonado with respect to
promotion, pay, or discipline. The district court also found for Invensys on the
hostile work environment claim, concluding that Maldonado did not experience
severe or pervasive harassment and that, with respect to the co-workers, there was
no basis for employer liability.
Maldonado’s brief is not a model of clarity but we discern two arguments on
appeal. He first contends that he made out a case of racial discrimination by
establishing that Invensys repeatedly denied him a promotion in favor of a white
employee. But Maldonado submitted no direct or circumstantial evidence of
discriminatory intent on the part of those responsible for making promotion
decisions, see Dandy v. UPS, Inc., 388 F.3d 263, 272-73 (7th Cir. 2004). Nor did he
make out a prima facie case of racial discrimination based on failure to promote; in
particular, nothing in the record establishes that a white employee who was not
better qualified was promoted instead of him. See id. at 273. Maldonado also
vaguely alleges discrimination with respect to pay and job responsibilities, but no
evidence suggests that similarly situated white employees were treated better. See
Herron v. Daimler Chrysler Corp., 388 F.3d 293, 300-01 (7th Cir. 2004).
Maldonado next argues that his co-workers and former supervisor created a
hostile work environment by making offensive comments pertaining to his race. He
points to the comments made by Fox as well as those by various co-workers who
No. 05-1295 Page 3
remarked that “[t]here are white people and white trash and there are good niggers
and bad niggers and there are good Mexicans and bad Mexicans,” that “one of those
Mexican spics” should clean up his work area, and that certain jobs were for white
people only. To the extent the comments are substantiated, Maldonado has not
demonstrated that he experienced harassment severe or pervasive enough to
constitute a hostile work environment. See Williams v. Waste Mgmt. of Ill., Inc.,
361 F.3d 1021, 1029 (7th Cir. 2004); Luckie v. Ameritech Corp., 389 F.3d 708, 713
(7th Cir. 2004). His co-workers’ comments were infrequent, and they were not
directed at him; he overheard or was told about them. See Luckie, 389 F.3d at 714
(holding that no hostile work environment existed where “the conduct in question
consists of isolated events that were not physically threatening or humiliating and
in some cases were not even directed at [plaintiff]”). Although Fox, the former
supervisor, directed one slur at Maldonado, a single utterance of an epithet, while
offensive, is not sufficient to establish a hostile work environment, see Smith v. Ne.
Ill. Univ., 388 F.3d 559, 566-67 (7th Cir. 2004). Fox’s other two comments, which
were not directed at Maldonado, do not tip the scale. See id. at 567.
AFFIRMED.