Hrobowski, William R v. Worthington Steel Co

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2167
WILLIAM R. HROBOWSKI,
Plaintiff-Appellant,
v.
WORTHINGTON STEEL COMPANY
and WORTHINGTON INDUSTRIES, INC.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 00 C 43—Rudy Lozano, Judge.
____________
ARGUED DECEMBER 2, 2003—DECIDED FEBRUARY 17, 2004
____________
Before RIPPLE, MANION, and DIANE P. WOOD, Circuit
Judges.
MANION, Circuit Judge. William Hrobowski sued his
employers, Worthington Steel Company and Worthington
Industries, Incorporated (collectively, “Worthington”),
asserting various claims of employment discrimination.
He appeals only from the entry of summary judgment in
Worthington’s favor as to his claim of a hostile environment
in violation of Title VII and 42 U.S.C. § 1981. We affirm.
2 No. 03-2167
I.
Worthington has employed Hrobowski, a black man, since
1976. Since January 30, 1997, Hrobowski has been
Worthington’s director of safety and health, although he has
been on medical leave since April 2, 1999. According to the
district court, Hrobowski put forth the following evidence
to support his claim of a hostile environment: “(1) Mainte-
nance department employees used racial epithets [especially
the word ‘nigger’] frequently; (2) a co-employee made an
inappropriate comment about property values decreasing
when blacks move in; and (3) co-supervisors would tell
[Hrobowski] that he needed to ‘talk some nigger to nigger’
with an employee.” The district court concluded that,
because the alleged harassment was not severe and perva-
sive, because none of the alleged harassers was a supervisor
of Hrobowski, and because Hrobowski pointed to no
evidence that Worthington was negligent in dealing with
the racial harassment of Hrobowski, Worthington was
entitled to summary judgment.
II.
We review the district court’s grant of summary judgment
de novo, construing all facts in favor of Hrobowski, the
nonmoving party. Rogers v. City of Chicago, 320 F.3d 748, 752
(7th Cir. 2003). Summary judgment is appropriate 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). In short, summary judgment
is warranted where “a rational trier of fact could not find for
the non-moving party.” Rogers, 320 F.3d at 752.
No. 03-2167 3
Section 1981 provides that “[a]ll persons within the juris-
diction of the United States shall have the same right in
every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.” 42
U.S.C. § 1981(a) (2000). Title VII forbids certain employers
“to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with re-
spect to his compensation, terms, conditions, or privileges
of employment, because of” his race. 42 U.S.C. § 2000e-
2(a)(1). There is no dispute that Worthington is an employer
subject to both laws. Hrobowski may establish a violation of
either statute by proving that Worthington subjected him to
a hostile work environment. EEOC v. Pipefitters Ass’n Local
597, 334 F.3d 656, 658 (7th Cir. 2003). To do so, Hrobowski
must show that (1) he was subject to unwelcome harass-
ment; (2) the harassment was based on his race; (3) the
harassment unreasonably interfered with his work perfor-
mance by creating an intimidating, hostile, or offensive
working environment that seriously affected his psychologi-
cal well-being; and (4) there is a basis for employer liability.
Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032
(7th Cir. 1998).
The first question is whether a reasonable jury could
find that the allegedly harassing speech was unwelcome, a
question that the district court resolved in Hrobowski’s fa-
vor. Whether words or conduct were unwelcome presents
a difficult question of proof turning largely on credibility
determinations committed to the factfinder. Reed v. Shepard,
939 F.2d 484, 491 (7th Cir. 1991). Worthington argues that
any of the allegedly hostile words that Hrobowski encoun-
tered actually were welcome because, as Hrobowski admit-
4 No. 03-2167
ted, he too made racially oriented jokes and used words
such as “spic” and “nigger” in the workplace. It is true that
Worthington may not be held liable for a hostile environ-
ment that Hrobowski himself instigated. See id. In Reed,
for example, we held that a directed verdict was appropriate
against the hostile environment claim of a female jail
employee whose “preferred method of dealing with co-
workers was with sexually explicit jokes, suggestions, and
offers.” Id.This case, however, is distinguishable from Reed. Reed
admitted that she had never complained about the allegedly
harassing conduct. Id. at 487. All of the evidence in the
record, therefore, pointed to the conclusion that
she welcomed the conduct on which she based her suit.
Hrobowski, by contrast, points to competent evidence that
he did object to the type of racist language to which he was
subjected. In his deposition testimony, Hrobowski points
out that he complained to managers Mark Stier and Pat
Murley about racial language and jokes in the workplace.
Although it is unclear when Hrobowski made these protests
or exactly what he said to Stier and Murley (more about that
later), a reasonable jury could conclude from this evidence
that Hrobowski did not welcome racist speech, at least
when he was the victim of that language. Thus, in this case,
that the plaintiff himself used racist language does not lead
inexorably to the conclusion that he welcomed the racial
insensitivity of others. We therefore agree with the district
court that a reasonable jury could find that the words on
which Hrobowski predicates his claim for a hostile environ-
ment were unwelcome.
As to whether the harassment was based on race, there
is no dispute. We therefore turn to the third prong of
inquiry, asking whether a reasonable jury could find that
the harassment unreasonably interfered with Hrobowski’s
No. 03-2167 5
work performance by creating an intimidating, hostile, or
offensive working environment that seriously affected his
psychological well-being. Parkins, 163 F.3d at 1032. Another
method of framing this issue, as we have done in some of
our opinions, is to ask whether the harassing words or con-
duct were “severe or pervasive,” although the substance of
the inquiry is the same either way. See, e.g., Quantock v.
Shared Marketing Servs., Inc., 312 F.3d 899, 903-04 (7th Cir.
2002) (emphasis on the disjunctive added). The district court
held that Hrobowski did not satisfy the third element of a
hostile environment claim, but it based its analysis on the
erroneous premise that the harassing words or conduct had
to be both severe and pervasive. Not so: “one or the other
will do.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808
(7th Cir. 2000). For Hrobowski to prove that he was exposed
to a severe or pervasive hostile environment, he must prove
that the words or actions to which he was subjected were
both objectively and subjectively hostile. Robinson v.
Sappington, 351 F.3d 317, 329 (7th Cir. 2003).
Considering the evidence that the district court delin-
1
eated, and that we quoted above, we conclude that
a reasonable jury could find that the work environment was
objectively hostile. According to Hrobowski’s deposition
testimony, on which he relied in opposition to
Worthington’s motion for summary judgment, he was
repeatedly subjected to hearing the word “nigger,” includ-
ing more than one occasion in which a fellow supervisor
suggested that he talk to an employee “nigger to nigger.”
1
Hrobowski argues that he presented more evidence than the
district court acknowledged. We need not decide the issue be-
cause, assuming that the evidence were limited to what the dis-
trict court outlined, Hrobowski still would have created an issue
of fact as to whether the harassment was severe or pervasive.
6 No. 03-2167
Given American history, we recognize that the word “nig-
ger” can have a highly disturbing impact on the listener. Cf.
Virginia v. Black, 123 S. Ct. 1536, 1545 (2003) (noting that the
Ku Klux Klan vowed to “keep niggers out of your town” as
part of its campaign of racial violence and intimidation).
2
Thus, a plaintiff’s repeated subjection to hearing that word
could lead a reasonable factfinder to conclude that a work-
ing environment was objectively hostile. See, e.g., Rodgers v.
Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.
1993); see also Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill.
1984) (stating that “use of the word ‘nigger’ automatically
separates the person addressed from every non-black
person”).
As to the subjective component of our inquiry, all that
Hrobowski has to establish is that he perceived the environ-
ment to be hostile or abusive. Haugerud v. Amery Sch. Dist.,
259 F.3d 678, 695 (7th Cir. 2001). As discussed above, a
reasonable jury could find that the words that Hrobowski
heard were unwelcome, and therefore there is an issue of
material fact regarding subjective hostility.
All this said, we still must examine the the final element
of a hostile environment claim to determine whether there
is a basis for attributing liability to Worthington. The
standard for employer liability hinges on whether the
harasser was the plaintiff’s supervisor. Parkins, 163 F.3d at
1032. Harassment by a supervisor of the plaintiff triggers
strict liability, subject to the possibility of an affirmative
defense where the plaintiff suffered no tangible employ-
2
Competent evidence suggests that the word “nigger” was used
frequently, and not just on one or two occasions. We therefore are
not faced with the question of whether infrequent use of that
word would allow a reasonable jury to find an objectively hostile
environment.
No. 03-2167 7
ment action. Id. Conversely, the employer may be found
liable for a hostile work environment created by an em-
ployee who was not the plaintiff’s supervisor only where
the plaintiff proves that the employer has “been negligent
either in discovering or remedying the harassment.” Id. As
mentioned above, the district court concluded that there
was not competent evidence that any of Hrobowski’s
supervisors committed harassment, and that Hrobowski
pointed to no evidence that Worthington was negligent in
discovering or remedying any harassment generated by
employees who were not his supervisors. We examine each
of these conclusions.
We first consider the issue of supervisory harassment. For
there to be an issue of material fact as to whether a su-
pervisor harassed Hrobowski, it is not enough that he point
to evidence that just anybody with managerial authority
was racially abusive; instead, Hrobowski must show that
the harasser was his supervisor. Id. A supervisor is someone
with the power to affect the terms and conditions of the
plaintiff’s employment. Id. at 1034. In his opening
brief, Hrobowski devotes substantial effort to proving that
“managerial employees at Worthington directed offensive
comments to him.” But he never points to evidence that a
particular person with the power to influence the terms and
conditions of his employment made such remarks. We
therefore agree with the district court that there is no issue
of material fact as to whether one of Hrobowski’s supervi-
sors contributed to the hostile environment of which he
complains.
Whether Hrobowski was entitled to reach a jury depends,
therefore, on whether he pointed the district court to
competent evidence that Worthington was negligent in
discovering or rectifying the racial harassment any other
employee or employees directed at him. Worthington “will
8 No. 03-2167
not be liable for the hostile environment absent proof that it
failed to take appropriate remedial measures once apprised
of the harassment.” Hostetler, 218 F.3d at 809 (emphasis
added). Generally, the law does not consider an employer
to be apprised of the harassment “unless the employee
makes a concerted effort to inform the employer that a
problem exists.” Silk v. City of Chicago, 194 F.3d 788, 807 (7th
Cir. 1999) (internal quotation omitted). However, an
employer could be charged with constructive notice where
the harassment was sufficiently obvious. Mason v. Southern
Ill. Univ., 233 F.3d 1036, 1046 (7th Cir. 2000).
The district court found that Hrobowski “failed to direct
[the district court’s] attention to any facts which would
show that Defendants were negligent in discovering or ad-
dressing racial harassment in the workplace” and that
Hrobowski had made “almost most no application of the
law to the facts” concerning whether Worthington was
negligent in discovering or remedying racial harassment. If
true, this would be a dispositive determination: evidence
not designated to the district court in resisting summary
judgment cannot be properly argued on appeal. Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 898-99 (7th Cir. 2003).
In his opening brief, Hrobowski devotes slightly more
than one page of his argument section to the critical issue of
Worthington’s knowledge of the harassment. In that part of
his brief, he cites to no evidence in the record showing
either that Worthington had such knowledge or that he
so argued before the district court. Thus Hrobowski has
not met the standard of Fed. R. App. P. 28(a)(9)(A), which
requires arguments in the appellant’s brief to include “ci-
tations to the authorities and parts of the record on which
the appellant relies.” See Anderson v. Litscher, 281 F.3d 672,
675 (7th Cir. 2002). In his reply brief, Hrobowski develops
No. 03-2167 9
the argument for Worthington’s knowledge with some
citations to the record, but that comes too late. Rogers, 320
F.3d at 753 n.2.
Even if Hrobowski had briefed this matter properly,
however, he still would lose. In the section of his brief out-
lining the facts, Hrobowski states that the facts on which he
relies on appeal “were designated by Hrobowski to the
court below in opposition to summary judgment,” and he
then cites to pages four through eight of his brief in re-
sponse to Worthington’s motion for summary judgment. An
examination of those pages reveals that, in opposing the
motion for summary judgment, Hrobowski claimed to have
notified Worthington of racial harassment on two occasions.
First, he claims to have “reported the frequent use of racial
remarks to Mark Stier, a manager.” Second, he claims to
have “reported the frequent use of racial remarks to Pat
Murley, Plant Manager.” Hrobowski did not tell the district
court when he made these protests. (Were they before or
after the environment at Worthington turned hostile?)
Moreover, he did not tell the district court the substance of
his reports. (Did Hrobowski complain in language that
would have put Worthington on notice that there was a
problem requiring a remedy?) We therefore agree with the
district court’s conclusion that Hrobowski “failed to direct
[the district court’s] attention to any facts which would
show that Defendants were negligent in discovering or
addressing racial harassment in the workplace.”
Furthermore, our examination of Hrobowski’s deposition
transcript suggests that there were no such facts. As to
Murley, Hrobowski claimed to have “talked to Pat Murley
about them [offensive remarks] a couple of times and
he said I brought it on myself.” It is entirely unclear what
Hroboswki said to Murley and when. Hrobowski’s dep-
osition transcript is slightly more informative when it comes
10 No. 03-2167
to Stier. Regarding Stier, Hrobowski testified that,
in January 1997, he and Stier “talked about the language
used, the racial jokes, and how they were an everyday oc-
currence.” Nothing in this transcript (which, in any event,
it was the responsibility of Hrobowski, and not the district
court, to parse) would allow a reasonable jury to conclude
that Worthington was on notice that a hostile environment
existed in its workplace. Therefore, even if Hrobowski had
applied law to these facts before the district court, he still
would not have been able to establish an issue of material
fact as to Worthington’s negligence.
III.
Although Hrobowski put forth competent evidence re-
garding the first three elements of his claim of a hostile en-
vironment, he failed to establish that there was an issue of
material fact as to the fourth element, a basis upon which to
hold the employer liable. We therefore affirm entry of
summary judgment in Worthington’s favor.
RIPPLE, Circuit Judge, concurring. I join the judgment
and the opinion of the court and write separately only to
elaborate my views on the application of Federal Rule of
Appellate Procedure 28 to the element of employer liability.
Given our preference for a merits disposition whenever
possible, I normally would prefer a less aggressive use of
Federal Rule of Appellate Procedure 28 than the one
employed by the court’s opinion. In his opening brief to this
court, Mr. Hrobowski set out in his “STATEMENT OF THE
No. 03-2167 11
FACTS” an extensive elaboration of the facts he deemed
relevant and supported those facts with citations to the
record. Under our rules, however, that is only a first step. A
party must go on to provide a reasoned, if short, application
of those facts to each element of his claim. See Fed. R. App.
P. 28(a)(9)(A) (requiring the “argument” in the appellant’s
opening brief to include “the appellant’s contentions and
the reasons for them, with citations to the authorities and
1
parts of the record on which the appellant relies”). When
this minimal threshold is satisfied, there is little difficulty
relying on additional facts set forth in the brief’s factual
rendition and referenced to the record.
On the element of employer liability, Mr. Hrobowski’s
argument in his brief to the district court merely notes,
in the most conclusory terms and without any record ci-
tations, that Mr. Hrobowski was subject to harassing
comments by his supervisors and by coemployees in the
presence of his supervisors. Despite the district court’s
admonitions regarding this failure, the portion of Mr.
Hrobowski’s argument addressing employer liability in his
opening brief to this court is only slightly more developed.
Given this repeated ignoring of the rules, I cannot fault
my colleagues for determining that Mr. Hrobowski’s non-
compliance with Federal Rule of Appellate Procedure
28(a)(9)(A) is fatal to his case.
Mr. Hrobowski’s strongest argument on the employer
liability element rests on the theory of constructive notice.
1
See also Johnny Blastoff, Inc. v. Los Angeles Rams Football Co.,
188 F.3d 427, 439 (7th Cir. 1999) (noting that “unsupported
or cursory arguments” not in compliance with Federal Rule of
Appellate Procedure 28(a)(9)(A) will not be considered); Rogers
v. City of Chicago, 320 F.3d 748, 753 n.2 (7th Cir. 2003) (noting that
arguments not properly raised until the reply brief will not be
considered).
12 No. 03-2167
See Mason v. S. Illinois Univ. at Carbondale, 233 F.3d 1036,
1046 n.8 (7th Cir. 2000) (“[T]he pervasiveness of coworker
conduct could show the employer’s constructive notice of
the harassment.” (emphasis removed)). However, Mr.
Hrobowski did not so much as mention constructive notice
to the district court, and his “argument” on constructive
notice in his opening brief to this court was nothing more
than another conclusory allegation. See Appellant’s Br. at 14
(“There is no doubt Worthington was, at least, on construc-
tive notice of the hostile environment.”). Accordingly, it is
proper for the court not to consider this basis for liability.
See Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 559 n.4 (7th
Cir. 2003) (“[F]ailure to present [an] argument to the district
court waives it on appeal.”); Campania Mgmt. Co., Inc. v.
Rooks, Pitts & Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002)
(“Perfunctory and undeveloped arguments are waived,
especially when, as here, ‘a party fails to develop the factual
basis of a claim on appeal and, instead, merely draws and
relies upon bare conclusions.’ ” (quoting Spath v. Hayes
Wheels Int’l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000))).
Mr. Hrobowski’s failure to make an argument on this point
in anything other than the most conclusory terms is fatal to
his case. Therefore, I agree that we must affirm the judg-
ment of the district court for lack of a basis for employer
liability.
No. 03-2167 13
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-17-04