Willie Jones v. Heartland Employment Services ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2018 *
Decided May 11, 2018
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 17-2519
WILLIE E. JONES, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 16-2004
Colin S. Bruce,
HEARTLAND EMPLOYMENT Judge.
SERVICES, LLC,
Defendant-Appellee.
ORDER
Willie Jones sued his former employer, Heartland Employment Services, for
defamation under Illinois law, and sexual harassment and retaliation under Title VII of
the Civil Rights Act of 1964. The district court entered summary judgment for
Heartland. Because a reasonable factfinder could not conclude that the events on which
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17-2519 Page 2
Jones bases his suit were defamatory, created a hostile work environment, or were
unlawfully retaliatory, we affirm.
Jones, an African-American man who worked as a cook and as an aide at a
nursing home staffed by Heartland, complains of three problems. We describe the
evidence for each one in the light most favorable to Jones, beginning with what Jones
calls defamation. Jones overheard his supervisor say about him: “He doesn’t like white
people. That’s why we keep having trouble with him.” Jones argues that the remark,
which implied that he was a racist, hurt his reputation, but he supplied no evidence of
reputational harm. The second issue regards his work environment. A female client at
the nursing home once told him that she had a crush on him, asked if he was married,
invited him to her room, and tried to touch him. Jones reported the conduct, which he
views as sexual harassment, and he says that Heartland did not respond. The last issue
is retaliation. In August 2015 Jones filed a charge with the Equal Employment
Opportunity Commission for race and sex discrimination and retaliation. Then, over the
next five months, he had the following troubles at work: Coworkers threw out food that
he cooked and told him how “to do things.” His supervisor twice used a “nasty” and
loud voice when speaking to him. He received disciplinary written warnings for,
according to Heartland, storing his watch in a pan of rice and refusing to wash dishes,
among other tasks. Last, compared to others, he received fewer scheduled overtime
hours during a holiday.
The district court entered summary judgment in favor of Heartland. Relying on
Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988), the judge said that being called “racist”
was not defamatory. The workplace was not unlawfully hostile, the judge also
concluded, and the “retaliatory” actions were not materially adverse or caused by his
EEOC charge.
Heartland asks us to dismiss Jones’s appeal under Federal Rule of Appellate
Procedure 28(a). But Jones’s opening brief engages with the district court’s order while
citing legal authorities. We construe his filings liberally and will address the discernible
arguments. See Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017).
Jones first argues that his supervisor’s comment (“he doesn’t like white people”)
supports a claim of defamation. We will assume that the supervisor implied that Jones
is racist, and that Stevens, on which the district court relied to reject Jones’s claim, does
not apply. In Stevens we concluded that when the president of a parent-teacher
association used the “verbal slap” of calling a principal “racist,” the principal (the target
No. 17-2519 Page 3
of the “slap”) had no defamation claim because he could “slap back.” 855 F.2d at 402.
But Jones, as a subordinate, could not “slap back” against his supervisor without
adverse consequences. See Taylor v. Carmouche, 214 F.3d 788, 793 (7th Cir. 2000).
Nevertheless, Jones cannot survive summary judgment because he presented no
evidence that the comment harmed his reputation. Defamation under Illinois law is
either “per quod” or “per se.” Defamation per quod requires a plaintiff to show
reputational harm from the statements. Pippen v. NBCUniversal Media, LLC, 734 F.3d 610,
612–13 (7th Cir. 2013). Jones has no proof of such harm, so he must show that the
comments were defamatory per se—so egregious that they are actionable without proof
of injury. Id. at 613. Jones does not argue that any of the five categories of defamation
per se apply to him, and after examining those categories ourselves, we conclude that
none applies. Indeed, the supervisor’s statement described Jones’s character, and
Illinois does not hold defendants liable under defamation per se for statements about a
plaintiff’s character, including the ability to work in harmony with others. See Cody v.
Harris, 409 F.3d 853, 858 (7th Cir. 2005) (citing Heying v. Simonaitis, 466 N.E.2d 1137,
1143 (Ill. App. Ct. 1984)).
We turn to Jones’s claim of a sexually hostile work environment. An employer
can be liable under Title VII for harassment of an employee by a client. Erickson v. Wis.
Dep't of Corr., 469 F.3d 600, 605 (7th Cir. 2006). But liability depends on the “the severity
of the allegedly discriminatory conduct, its frequency, whether it is physically
threatening or humiliating or merely offensive, and whether it unreasonably interferes
with an employee’s work performance.” Overly v. KeyBank Nat’l Ass'n, 662 F.3d 856, 862
(7th Cir. 2011) (quoting Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009)). Jones
asserts that a client once said that she had a crush on him, asked if he was married,
invited him to her room, and tried to (but did not) touch him. These occurrences are not
actionable because they were not frequent, physical, or severe. See Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998); Overly, 662 F.3d at 862 (ruling no harassment claim
when supervisor called plaintiff “cutie” five to ten times over two months); Moser v. Ind.
Dep't of Corr., 406 F.3d 895, 902–03 (7th Cir. 2005) (same when coworker referred to
plaintiff’s “tits,” commented on female job applicants’ physical appearance, made
innuendo about penis size, and said that female coworker “just needed a good f* * *”);
Savino v. C.P. Hall Co., 199 F.3d 925, 933 (7th Cir. 1999) (noting that “sporadic use of
abusive language, gender-related jokes, and occasional teasing” is not actionable
harassment).
No. 17-2519 Page 4
Jones also argues generally that Heartland retaliated against him because he filed
an EEOC charge in August 2015. But as the district court correctly noted, Jones
presented only a chronology of events with his coworkers and supervisors during the
five months after he filed that charge. He supplied no evidence that they knew about
the charge, let alone that the charge motivated their conduct. Moreover “‘suspicious
timing alone is insufficient’ to support a Title VII retaliation claim.” Leonard v. E. Ill.
Univ., 606 F.3d 428, 433 (7th Cir. 2010) (quoting Turner v. The Saloon, Ltd., 595 F.3d 679,
687 (7th Cir. 2010)). The district court therefore properly concluded that Jones had not
shown that his coworkers’ and supervisors’ actions were in response to his EEOC
charge. See Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park, 490 F.3d 558, 563 (7th Cir. 2007).
One final matter: In the district court Jones pursued a race-discrimination claim
based on the same events that we have discussed. But he does not press this issue in his
appellate briefs, and so he has waived that claim. See Bernard v. Sessions, 881 F.3d 1042,
1048 (7th Cir. 2018).
AFFIRMED