Cerros, Tony v. Steel Technologies

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1293
Tony Cerros,
Plaintiff-Appellant,
v.
Steel Technologies, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:97-CV-103--Theresa L. Springmann, Magistrate Judge.
Argued September 19, 2001--Decided May 7, 2002
Before Easterbrook, Diane P. Wood, and
Williams, Circuit Judges.
Diane P. Wood, Circuit Judge. Hispanic
employees were few and far between at the
Porter County, Indiana, facility operated
by defendant Steel Technologies, Inc.
("Steel"). Plaintiff Tony Cerros was one,
and he found the environment at Steel to
be exceedingly hostile. He filed this
suit under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. sec. 2000e, et
seq., alleging that Steel discriminated
against him and created a hostile work
environment because of his national
origin and race. After a bench trial
before a magistrate judge (sitting by
consent under the authority of 28 U.S.C.
sec. 636(c)), Steel prevailed, and Cerros
appealed. We conclude that further
proceedings are necessary and therefore
remand this case to the district court.
I
Cerros began his employment as a full
time employee at Steel in October 1995.
By July 1996, he had risen to the
position of slitter operator. Although
one might think that Cerros’s various
promotions were evidence of a positive
work environment, that was far from true.
The district court found that some of the
supervisors as well as other employees
overtly espoused the offensive philosophy
"if it ain’t white it ain’t right."
Cerros himself was frequently subjected
to verbal harassment. During 1996 and
1997, employees, including supervisors,
referred to him by such racialized
derogatory names as "brown boy," "spic,"
"wetback," "Julio" and "Javier" (these
are not Cerros’s given or nicknames),
talked down to him and muttered comments
under their breath. Among the supervisors
using racial epithets was Jeff Colvin. In
October 1996, Cerros transferred to the
first shift to avoid Colvin’s harassment.
His respite was short-lived: over his
protests, Colvin also transferred to the
first shift, and the epithets continued.
In addition to the verbal harassment,
racist graffiti was painted on the
bathroom walls. It included racial
remarks and symbols such as "spic," "Go
Back to Mexico," "Tony Cerros is a Spic,"
"KKK," and "White Power." Although the
graffiti was cleaned off the walls, Steel
never conducted any investigation, nor
did it attempt to ascertain who was
responsible for the defacement of the
room. On another occasion, the tires on
Cerros’s car were slashed. This severe
harassment continued until December 1997,
and even beyond.
In addition to harassment based upon his
race and national origin, Cerros suffered
other disadvantages in the workplace. One
that he emphasizes is Steel’s failure to
train him properly for his position as
slitter operator, even as it was
providing better training for its white
employees. The district court found that
Steel used informal, on-the-job training
to train its slitter operators. The
extent of the training depended upon the
trainee’s experience, ability, aptitude,
and time on the job as slitter helper, as
well as on the trainer’s experience,
ability, and aptitude. Cerros learned to
operate the slitter by observing and
performing some of the slitter operator
functions while he was a slitter helper.
He also received supervised instruction
when needed. Cerros did not have enough
slitter helpers, however, and he believed
he was deprived of a slitter helper
because of his race and national origin.
In early September 1996, management
learned that production was dropping off
on the slitter Cerros operated. On
September 10, 1996, Colvin met with
Cerros to discuss this problem. When he
asked how Cerros was doing, Cerros
explained that he needed more training on
the machine and that another employee
sometimes set his machine up incorrectly
when supervisors were not around. Colvin
told Cerros that he would be happy to
help him, but that production slow-downs
would not be tolerated. The following
day, Cerros approached Colvin, following
up on the previous meeting. During the
conversation, Cerros told Colvin that he
felt discriminated against as the only
Latin-American operator. (Steel employed
150 employees at the Portage site, but it
had only 10 Hispanic employees.) Cerros
went on to state to Colvin’s face that he
thought Colvin was racist. Colvin (not
surprisingly) denied the accusation, but
he also suggested that Cerros speak with
the General Manager, Todd Bennett, about
the problem.
After that conversation, Colvin himself
informed Bennett directly about Cerros’s
allegation of national origin
discrimination. Soon after, Bennett spoke
with Cerros about the situation. That was
where matters seemed to stop. No one ever
investigated Cerros’s complaint; it was
never passed along to the human resources
department; and no remedial steps were
taken.
Steel’s official policy encourages
employees who feel discriminated against
first to inform their supervisor of
inappropriate behavior. If an employee
does not receive a response from her
immediate supervisor, she is then
encouraged to make an appointment with
the Plant Manager. If the problem still
remains unresolved, a Step Three
procedure is available under which the
employee may submit a written summary of
the situation to the Plant Manager. The
Plant Manager submits his own report to
the General Manager, who reviews the
situation, discusses it with the
employee, and renders a decision within
seven days. Last is Step Four, under
which there is a final appeal to the Vice
President if the employee remains
dissatisfied.
Cerros began by informing not only his
own supervisor, Colvin, but also other
supervisors such as Dan Beal, Kevin
Meyers and Russell Harrington of the
harassment. Later, as noted above, both
Colvin and Cerros discussed the situation
with Bennett, the General Manager. There
is no evidence that Cerros sought to
appeal Bennett’s lack of action to the
Vice President. In any event, the
epithets continued and nothing was done.
It was not until Cerros filed a charge of
discrimination with the EEOC that there
was an investigation into the harassment,
conducted by John Baumann, corporate
counsel and manager of human resources
during 1996-1997. After interviewing
managers and supervisors, who denied the
allegations, Baumann concluded that
Cerros was not subject to discrimination
or harassment. In time, Cerros received
his right-to-sue letter from the EEOC and
this case followed.
II
Because there was a full bench trial in
this case, our standard of review is the
one found in Fed.R.Civ.P. 52(a), under
which "[f]indings of fact shall not be
set aside unless clearly erroneous, and
due regard shall be given to the
opportunity of the trial court to judge
of the credibility of the witnesses."
Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1985). We review the
district court’s legal conclusions de
novo. Johnson v. West, 218 F.3d 725, 729
(7th Cir. 2000).
For the most part, Cerros does not argue
the district court’s findings of fact
were clearly erroneous. His disagreement
is with the ultimate conclusion that he
was not subject to impermissible
discrimination nor to a hostile work
environment. As the Supreme Court made
clear in Pullman-Standard v. Swint, 456
U.S. 273 (1982), however, the question
whether intentional discrimination
occurred itself calls for a finding of
fact, and thus the district court’s
decision on that point must be assessed
under the clear error standard. Id. at
287.
A. Race and National Origin
Discrimination
Cerros begins by arguing that the
district court should not have applied
the indirect framework of McDonnell
Douglas v. Green, 411 U.S. 792 (1973), to
his case, and instead should have
analyzed his claim under a direct method
of proof. But this is the wrong
perspective for a case that had a full
trial. United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714-15
(1983). We will review the record instead
to see whether there was clear error in
the district court’s conclusion that
Cerros failed to prove his discrimination
claims.
Although the district court found that
there was evidence that co-employees as
well as managers directed racial epithets
towards Cerros and perpetuated an "if it
ain’t white it ain’t right" philosophy at
the plant, the district court did not
find that Cerros’s supervisors or other
agents of Steel used this philosophy in
connection with an adverse employment
action. In fact, the district court found
that Cerros was not subject to any
adverse employment action at all.
If the record supports this conclusion,
it is fatal to Cerros’s claim of
discrimination. And on this record, we
cannot find that the district court
clearly erred. Cerros was promoted twice,
and he received a pay increase. Markel v.
Bd. of Regents of Wisconsin Sys., 276
F.3d 906, 911-12 (7th Cir. 2002). Even
though these are the opposite of adverse
employment actions, Cerros argues that he
was nevertheless injured when Steel
denied him proper training for the
position of slitter operator. His theory
was that the promotion was a cynical one,
and by failing to train him as well as it
trained white employees (in keeping with
the "if it ain’t white it ain’t right"
philosophy), Steel made sure that he
would fail in the new job.
The question is then whether there was
evidence of the alleged substandard
training, and whether this alone could
constitute an adverse employment action.
This court has defined an adverse
employment action as a "materially
adverse change in the terms and
conditions of employment [that is] more
disruptive than a mere inconvenience or
an alteration of job responsibilities."
Stockett v. Muncie Indiana Transit Sys.,
221 F.3d 997, 1001 (7th Cir. 2000).
Rather than setting forth a finite list
of what actions constitute adverse
employment actions, we have instead
provided a range of examples from
economic injuries to other actions that
are not as easily quantifiable, but
nonetheless are enough to qualify as an
adverse change in the terms and
conditions of someone’s employment.
Markel, 276 F.3d at 911; Smart v. Ball
State Univ., 89 F.3d 437, 441 (7th Cir.
1996).
Yet not every inconvenience or slight on
the job is an adverse employment action.
Although Cerros argues that Steel’s
failure formally to train him was more
than a mere inconvenience because it
placed his position as slitter operator
at risk, the evidence before the district
court did not compel this conclusion. The
district court found that Cerros failed
to prove that he was denied training, nor
did he prove that supervisors were
setting his machines up incorrectly.
After reviewing evidence from both
parties, the district court determined
that Cerros did not suffer any adverse
employment action; we see no warrant for
disturbing this finding. That in turn
means that the district court’s ultimate
finding that Cerros did not suffer
discrimination on the basis of his race
or national origin cannot be branded
"clearly erroneous," and the district
court’s judgment for Steel on this claim
must be affirmed.
B. Hostile Work Environment
The situation is different with respect
to Cerros’s claim of a working
environment made hostile by racial and
ethnic slurs and harassment. A hostile
environment claim falls under the general
rubric of harassment at the workplace,
which can amount to prohibited
discrimination in terms and conditions of
employment. In order to demonstrate
harassment that rises to the level of a
statutory violation, the plaintiff must
prove that "his or her work environment
was both subjectively and objectively
offensive; ’one that a reasonable person
would find hostile or abusive, and one
that the victim in fact did perceive to
be so.’" Gentry v. Exp. Packaging Co.,
238 F.3d 842, 850 (7th Cir. 2001)
(quoting Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998)). The plaintiff
must then show that the harassment was
based on her membership in a protected
class; that the conduct was severe or
pervasive; and that there is a basis for
employer liability. Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 754
(1998); Mason v. Southern Illinois Univ.
at Carbondale, 233 F.3d 1036, 1043 (7th
Cir. 2000).
Most of these points are not in dispute.
There is no doubt that Cerros
subjectively believed that he was a
victim of harassment based upon his race
or national origin. Nor is there any
question that a reasonable person would
perceive that the graffiti, remarks, and
other harassing conduct were based upon
his race and ethnicity. Cerros made
efforts to use the complaint mechanisms
that were available even though his
supervisor was a big part of the problem.
The district court did not consider
Steel’s affirmative defenses based on
Ellerth and Faragher (relating to the
adequacy of its complaint mechanism and
Cerros’s efforts to use it). At this
stage, therefore, the question is only
whether the district court committed
clear error in concluding that the
harassment from which Cerros suffered was
not severe or pervasive enough to meet
the statutory standard.
The Supreme Court established the rules
for deciding this issue in its decision
in Harris v. Forklift Sys., Inc., 510
U.S. 17 (1993). There it observed that
"[w]hen the workplace 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,
Title VII is violated." Id. at 21 (inter
nal quotations and citations omitted). In
carving out a middle ground between
making actionable any conduct that is
merely offensive, and covering only
conduct that causes a tangible
psychological injury, the Court
emphasized that "Title VII comes into
play before the harassing conduct leads
to a nervous breakdown." Id. at 22. It is
enough that the work environment is
objectively hostile or abusive (and is
subjectively perceived as such). In
answering that question, a court must
consider the totality of the
circumstances, including the "frequency
of the discriminatory conduct; its
severity; whether it is physically
threatening or humiliating, or a mere
offensive utterance; and whether it
unreasonably interferes with an
employee’s work performance." Id. at 23.
See also Shanoff v. Illinois Dept. of
Human Serv., 258 F.3d 696, 704 (7th Cir.
2001).
The importance of considering the entire
context of the workplace was later
underscored by the Supreme Court in
Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75 (1998). There, in the
context of a sex harassment case, the
Court observed that "[t]he prohibition of
harassment on the basis of sex . . .
forbids only behavior so objectively
offensive as to alter the ’conditions’ of
the victim’s employment." Id. at 81. An
inquiry into the objective severity of
harassment, it continued, "requires
careful consideration of the social
context in which particular behavior
occurs and is experienced by its target."
Id. "The real social impact of workplace
behavior often depends on a constellation
of surrounding circumstances,
expectations, and relationships . . . ."
Id. at 82. See also Clark County School
Dist. v. Breeden, 532 U.S. 268, 270-71
(2001) (stressing again the need to
consider all the circumstances).
The district court acknowledged that it
had to consider the totality of the
circumstances, but its findings of fact
fell short of what Harris, Oncale, and
Breeden require; moreover, its ultimate
conclusion does not seem to have taken
into account the underlying facts it
found earlier in the opinion. In terms of
omissions, we do not know exactly how
often the offensive grafitti and taunts
appeared, and as pervasiveness is
certainly one factor to consider, see
Breeden, this is a critical omission. In
terms of unexplained inconsistencies, we
note that the district court had already
found that Cerros was subjected to direct
and highly offensive racial epithets by
employees and supervisors that referred
to him as brown boy, spic, wetback, Julio
and Javier. Both supervisors and other
employees talked down to him, and
muttered things under their breath. In
addition, racial epithets and slogans
were painted on bathroom walls. Some were
about Hispanics (and recall that there
were only a tiny number of Hispanics
working at the Portage facility). Others
touted the KKK and White Power. Some were
racially derogatory statements about
Cerros himself, by name. On top of that,
the tires on Cerros’s car were slashed
while he had it parked at work. Although
Cerros did not know who slashed his tires
or why, he did notify Steel about the
incident, and Steel did nothing in
response.
The district court never explained why
this appalling litany of misconduct was
merely "offensive, unenlightened, and
inappropriate"--the terms it used in the
section of the opinion with the ultimate
conclusion that Cerros’s claim failed. It
characterized the incidents as
"relatively isolated," and thus as
insufficient to show a hostile work
environment. We believe that such a
finding may have resulted from a
misunderstanding about the legal
threshold for harassment cases; like the
lower courts in Harris, the district
court here may well have set the bar too
high as a matter of law. This court has
found severe verbal harassment of the
sort identified by the district court to
be prohibited harassment, even when it
did not occur every day. In Shanoff, the
plaintiff alleged he was repeatedly
harassed with remarks directed towards
his race and his religion. The remarks
included referring to Shanoff as a
"haughty Jew," and stating "I know how to
put you Jews in your place." Shanoff, 258
F.3d at 698-99. In all, Shanoff was
subjected to six severe instances of
harassment by his supervisor. Despite
Shanoff’s objections to the harassment,
the supervisor demonstrated her "direct,
unambiguous hostility to Shanoff because
of his race and religion." Id. at 706. We
found that this behavior rose to an
objectively hostile work environment. See
also Rogers v. Western-Southern Life Ins.
Co., 12 F.3d 668, 673 (7th Cir. 1993)
(finding an actionable hostile work
environment when supervisors and
employees referred to an employee by the
term "nigger" between five and ten times
while he was employed).
This is not a case where Cerros was a
recipient of insults because of a
workplace altercation, cf. Spearman v.
Ford Motor Co., 231 F.3d 1080, 1086 (7th
Cir. 2000); this also is not a case where
there were only a few verbal utterances
made in the context of office banter,
Logan v. Kautex Textron N. Am., 259 F.3d
635, 639; and this case is nothing like
Sanders v. Vill. of Dixmoor, 178 F.3d
869, 870 (7th Cir. 1999), where there was
one isolated racial epithet, in response
to the plaintiff’s already inappropriate
conduct. It appears that the epithets at
Steel continued for many months, although
this is a matter on which greater clarity
from the district court is necessary.
Adding up all of the derogatory names
directed at Cerros as well as all of the
graffiti on the bathroom walls, and
coupling that with more information about
how frequently or how long the abuse
endured, the court might well find that
both the pervasiveness and the severity
measures are high. These are, to a
certain degree, inversely related; a
sufficiently severe episode may occur as
rarely as once, see Smith v. Sheahan, 189
F.3d 529, 533-34 (7th Cir. 1999), while a
relentless pattern of lesser harassment
that extends over a long period of time
also violates the statute. While there is
no "magic number" of slurs that indicate
a hostile work environment, we have
recognized before that an unambiguously
racial epithet falls on the "more severe"
end of the spectrum. See Rogers, 12 F.3d
at 704 ("Perhaps no single act can more
quickly ’alter the conditions of
employment and create an abusive working
environment’ than the use of an
unambiguously racial epithet such as
’nigger’ by a supervisor in the presence
of his subordinates.").
When Cerros attempted to escape the
comments by transferring shifts, the
offending supervisor followed him to the
new shift. Although, as the district
court noted, Cerros was not subject to
physical threats, Harris makes it clear
that such a showing is not a sine qua non
for a harassment claim. Cerros endured a
workplace environment filled with slurs
and graffiti based on his race and
national origin. Steel not only tolerated
the harassment, but even worse, according
to the facts found by the district court,
its supervisors contributed to the
harassment. If severe enough, or
pervasive enough, this is exactly the
sort of conduct Title VII prohibits.
III
Although Title VII does not guarantee a
happy workplace, it does provide
protection for employees who suffer from
discriminatory terms and conditions of
employment through a work environment
that is permeated with racial epithets
that are tolerated by the employer.
Cerros has shown enough here to have the
opportunity on remand to demonstrate that
he has met the standards established in
Harris, Oncale, and Breeden. The judgment
of the district court is therefore
affirmed in part and vacated and remanded
in part. We Affirm the district court’s
judgment in favor of Steel on Cerros’s
discrimination claims. We Vacate the
judgment on his hostile environment
harassment claim and Remand that part of
the case for further proceedings. As
noted above, because the district court
resolved the case in Steel’s favor on the
basis that no actionable harassment had
occurred, it never reached Steel’s
Ellerth/Faragher affirmative defenses.
While Cerros is entitled to more precise
findings of fact, Steel is by the same
token entitled to have its affirmative
defenses considered by the court. We thus
remand for further proceedings consistent
with this opinion. Each party shall bear
its own costs on appeal.