Dennis Ford v. Minteq Shapes and Services, In

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2140
D ENNIS F ORD ,
Plaintiff-Appellant,
v.
M INTEQ SHAPES AND S ERVICES, INCORPORATED , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:07-cv-00188-JVB—Joseph Van Bokkelen, Judge.
A RGUED O CTOBER 6, 2009—D ECIDED N OVEMBER 24, 2009
Before B AUER and W OOD , Circuit Judges.Œ
B AUER, Circuit Judge. Dennis Ford sued his employer,
Minteq Shapes and Services, Inc., claiming that Minteq
racially harassed him, paid him a discriminatory wage,
and retaliated against him, all in violation of Title VII of
Œ
Judge Ann Claire Williams recused herself after oral argu-
ment and has not participated in deciding this appeal. This
decision is being issued by a quorum of the panel. See 28
U.S.C. § 46(d).
2 No. 09-2140
the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. The
district court granted summary judgment to Minteq on
all counts. We have reviewed the district court’s decision
de novo; finding no error, we affirm.
I. BACKGROUND
Dennis Ford has worked for thirteen years at Minteq,
a company that manufactures refractories. Ford operates
the forklift and strips, casts, and molds refractories at
Minteq’s facility in Portage, Indiana. Out of twenty em-
ployees on site, he has always been the only African-
American.
Coworker Joseph Wampler referred to Ford as “black
African-American” or “black man” for some period of
time until his supervisor Steve Smith and coworker
Miguel Altieri overheard Wampler and reprimanded
him. Minteq says this period lasted only a couple days
in April 2006. But Ford adduced evidence, which we
must credit on this appeal, that Wampler’s black-man
comments had been occurring for fourteen months, i.e.,
numerous times per day since January 2005. Ford Aff. ¶¶ 6,
7, 12. Ford also adduced evidence that he had reported
Wampler’s comments in September 2005 to the Manager
of Human Resources, Laura Beemsterboer, along with
his concerns about a pay raise and the Christmas party.
Ford Aff. ¶ 8.
In addition to Wampler’s comments, Ford complained
of three other circumstances giving rise to his claim for
racial harassment. First, Ford’s supervisor, Ronald
Humphreys, once told Ford that he didn’t have to worry
No. 09-2140 3
about losing his job because Minteq wanted to appear
integrated. Second, another supervisor, Lee Nuzzo, once
called him a gorilla. Third, Minteq barred Ford from
bringing his grandchildren to the company’s Christmas
parties although other employees were permitted to bring
their families. Upon Ford’s eighth year at Minteq, he was
allowed to bring his grandchildren but had to pay for
their gifts although Minteq purchased gifts for other
partygoers.
Ford suffered an eye injury on the job in March 2006. On
appeal, he no longer claims that Minteq failed to issue
him proper safety equipment. Rather, he claims that his
seeking medical attention outside Minteq’s company
clinic resulted in Minteq retaliating against him by
denying him phone privileges. Because of his denial of
phone privileges, he missed a call one day and had to
wait until that evening to discover that an ill family
member had died.
On May 5, 2007, Ford initiated this case against
Minteq after obtaining a right-to-sue letter from the
Equal Employment Opportunity Commission. Minteq
and Ford engaged in discovery and Minteq moved for
summary judgment. The district court entered summary
judgment in favor of Minteq on March 31, 2009, and
Ford timely filed this appeal.
II. DISCUSSION
We review the district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
4 No. 09-2140
ences in Ford’s favor. Winsley v. Cook County, 563 F.3d 598,
602 (7th Cir. 2009). Summary judgment is proper if the
pleadings, discovery materials, disclosures, and affidavits
demonstrate no genuine issue of material fact such that
Minteq is entitled to judgment as a matter of law. Fed R.
Civ. P. 56(c).
A. Racial Harassment
To survive Minteq’s motion for summary judgment on
his racial harassment claim, Ford needed to present
evidence that, if believed by a trier of fact, would show
that Minteq’s conduct was “severe or pervasive enough
to create an objectively hostile or abusive work environ-
ment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Whether Minteq’s work environment was hostile or
abusive depends on factors that “may include the fre-
quency 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.
We have examined these factors as applied to Ford and
find that Wampler’s black-man comments, Humphreys’
affirmative-action comment, Nuzzo’s gorilla comment,
and Ford’s Christmas-party treatment, considered sepa-
rately or in the aggregate, do not support a legal claim
for harassment.
Wampler’s referring to Ford as “black man” and “black
African-American,” even for fourteen months as we
must assume favorably to Ford, was not severe enough
No. 09-2140 5
to alter Ford’s working conditions and thereby con-
stitute racial harassment, because he failed to
adequately pursue his racial harassment complaint
against Wampler. Ford admits he reported Wampler’s
behavior to Beemsterboer only once in fourteen months,
and Ford presented no evidence that his chief concern
in this conversation was Wampler’s black-man com-
ments rather than Minteq’s Christmas-party treatment
of him or his sought-after pay raise. Ford Dep. at 115.
Nor did Ford follow up with Beemsterboer, his super-
visor Smith, or anyone else when no apparent action
was taken in the next seven months. Ford thus
presented no evidence that he took reasonable steps to
inform Minteq of Wampler’s comments. This inaction by
Ford belies the notion that Wampler’s black-man com-
ments created a hostile work environment. Hence, no
reasonable jury could find that Wampler’s comments
rose to the level of harassment.
Nor did Humphreys’ affirmative-action comment or
Nuzzo’s gorilla comment constitute harassment; they
each happened only once, did not impair Ford’s job
performance, and were insufficiently severe to rise to
the level of a hostile work environment. Although we
find these comments rude and offensive, Title VII is
“not . . . a general civility code” and will not find
liability based on the “sporadic use of abusive language.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Nor did the Christmas-party treatment constitute
racial harassment; it did not impair Ford’s job perfor-
mance, it happened too occasionally and outside the
6 No. 09-2140
normal workday to rise to the level of a hostile work
environment, and there is no evidence that it was
because of his race.
We thus find no genuine issues of fact with respect to
the existence of racial harassment. So we need not
address whether Minteq can establish an affirmative
defense under Faragher, 524 U.S. 775, and Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
B. Disparate Pay
To prevail on his claim for disparate pay, Ford was
required to present evidence that (1) he is a member of
a protected class; (2) he was meeting his employer’s
legitimate expectations; (3) he suffered an adverse em-
ployment action; and (4) he was treated differently
from similarly situated employees who were not
members of the protected class. Hildbrandt v. Ill. Dep’t of
Natural Res., 347 F.3d 1014, 1029 (7th Cir. 2003).
Ford fails to satisfy the fourth element regarding dispa-
rate treatment because he adduced no evidence that
higher paid workers were similarly situated. Ford was
free during pretrial discovery to gather employees’ pay
stubs from Minteq, and to depose them or Minteq about
their job responsibilities, but he failed to do so. Ford does
present pay stub evidence that he received less pay
than David Lewin, another employee with an identical
job title. But equal title does not mean equal responsi-
bilities. The record’s only evidence of Minteq paying
more to white employees with equal responsibilities is
No. 09-2140 7
Ford’s own conclusory, uncorroborated testimony. This
is not enough to survive summary judgment.
C. Retaliation
To survive summary judgment on his retaliation claim,
Ford was required to present evidence that he suffered
an adverse employment action because he engaged in
an activity protected by Title VII. Tomanovich v. City of
Indianapolis, 457 F.3d 656, 662-63 (7th Cir. 2006). Ford fails
under this standard because the activity that he alleges
resulted in retaliation—seeking medical treatment outside
the company’s clinic—is not statutorily protected by
Title VII, i.e., it does not consist of “oppos[ing] any prac-
tice made an unlawful employment practice by this
subchapter” or “ma[king] a charge, testif[ying], assist[ing],
or participat[ing] in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). Ford argues only that his activity was pro-
tected by two Indiana statutes, not Title VII of the
Civil Rights Act. Pl. Br. 23.
III. CONCLUSION
For the reasons discussed above, we A FFIRM the
district court’s grant of summary judgment on Ford’s
employment discrimination claims.
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