DocketNumber: No. 17-3143
Citation Numbers: 916 F.3d 631
Judges: Hamilton, Manion, Scudder
Filed Date: 2/20/2019
Status: Precedential
Modified Date: 10/19/2024
Plaintiff Fred Gates testified that his direct supervisor, Rafael Rivera, addressed him with the N-word twice, and once threatened to write up his "black ass." The district court granted the employer's motion for summary judgment on Gates's claim for a racially hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. In granting summary judgment for the defendant-employer, the district court noted that Gates faced a high bar, "as '[t]he workplace that is actionable is one that is "hellish." ' " Gates v. Board of Education of the City of Chicago , No. 15-CV-1394,
The district court's analysis erred in two respects. First, it relied on the "hellish" standard, which is not a standard a plaintiff must satisfy. See Jackson v. County of Racine ,
I. Factual and Procedural Background
A. Facts Relevant to Summary Judgment
Our account of the facts reflects the defendant Board's choice to move for summary judgment. As required, we give plaintiff Gates the benefit of conflicts in the evidence and make reasonable inferences in his favor. Terry v. Gary Community School Corp. ,
Gates is an African-American male born in 1965. He has been a building engineer with the Chicago Board of Education since 2004. In 2010, Gates was hired to fill the sole engineer position at William C. Goudy Technology Academy. He reported to school principal Pamela Brandt until December 2012, when Rafael Rivera became his supervisor. Rivera was a facilities engineer who oversaw engineering work at sixteen schools, including Gates's. Because Rivera supervised so many schools, he and Gates saw each other in person only three times or so per month.
Gates's issues with Rivera began in June 2013. Gates testified that at a performance meeting that month, Rivera told him: "you will not be promoted because of your age and because you're black[.]" Despite Rivera's comment, Gates still applied for a promotion in July and August of 2013, which he did not receive. Gates testified that Rivera prevented him from getting a better job.
According to Gates, in the late summer of 2013, Rivera's behavior became increasingly offensive. Gates testified that on several occasions Rivera uttered racial epithets against him. Gates described one meeting with Rivera at his school in July or August of 2013. Rivera passed gas and then asked Gates why he did not laugh in response. Gates responded that he did not know why he should laugh or why it was funny. Rivera said "you know what they call that[?]" Gates asked "call what?" and Rivera responded "[w]hen someone fart and a black guy's sitting there." Gates said "no," and Rivera answered, "you call that a shit-sniffing nigger." Gates claimed that he complained about this incident to Rivera's supervisor at the time, Ms. Bilqis Jacob-El. Gates testified that Jacob-El asked him whether he had told anyone else about the *634comment. He said no. She then instructed Gates to keep to himself the details of his encounter with Rivera.
Gates also claimed that in November 2013, Rivera again came to Gates's school and spoke with him. At this meeting, Rivera yelled at Gates, telling him "you will kiss the principal's ass to make her happy" or Rivera "would write [him] up, which would cause [Gates] to get low work evaluations and get fired." Gates testified later that Rivera specifically threatened to write Gates's "black ass up." Gates also testified that in a March 2014 meeting, Rivera ordered him to sit down, prompting the following exchange:
I said I don't want to sit down, Rafael. He said, well, I'm your boss. I'm ordering you to sit down. So I said I'm not going to sit down. He said I'm tired of you people. I said who are you referring to? He said, nigger, you know what I'm talking about. So I walked out of the library.
On appeal, the Board argued that Rivera could not have exposed Gates to a racially hostile work environment because his interactions with Gates were too infrequent. The Board noted that Rivera made his offending comments over the course of six months, Gates saw Rivera only three times or so per month, and from November 2013 to November 2014, Gates worked only eleven days. (Gates was absent so often because during that year he took multiple approved leaves from work, including bereavement leave for his father's death, a one-month sick leave, leave under the Family Medical Leave Act to care for his grandfather, and then a nearly one-month military leave.) Gates testified that he used the one-month sick leave in December 2013 to seek medical attention for homicidal thoughts he was experiencing towards Rivera, Principal Brandt, and his school's vice principal. The homicidal thoughts, Gates testified, were brought on by the discrimination he faced at work.
Rivera began to prepare a pre-discipline notice for Gates in December 2013 citing uncompleted work orders at Gates's school.
*635When Gates returned from his leave in November 2014, he was assigned to the Far South Side or Southwest Collaborative, a group of traveling building engineers who work at different schools throughout the southwest side of Chicago. In the position at William C. Goudy Technology Academy that Gates held before his leaves, he was a Class 3 engineer (the lowest-paid of three classes), earning around $82,000 to $87,000 a year.
B. Proceedings in Civil Rights Agencies and the District Court
Gates never filed a formal internal complaint with the Board about the discrimination he says he suffered. Instead, on April 14, 2014, he filed a formal charge of discrimination with the Illinois Department of Human Rights and the United States Equal Employment Opportunity Commission. The EEOC issued Gates a notice of his right to sue. Gates then filed a five-count complaint against the Board in the district court alleging age and race discrimination and retaliation. The Board eventually moved for summary judgment on all claims, and the district court granted the motion. Gates v. Board of Education of the City of Chicago , No. 15-CV-1394,
As the district court noted, neither Gates's complaint nor his answers to the Board's interrogatories said that Rivera had ever used the terms "black," "black ass," "age," or the N-word. Id. at *7. Those specifics surfaced for the first time during Gates's deposition testimony. The district court carefully considered whether to treat those portions of his testimony as part of the summary judgment evidence and ultimately decided to consider this testimony. That was probably the correct decision, and in any event that point is not disputed on appeal. Still, the district court concluded that Gates could not sufficiently establish that he suffered a racially hostile work environment in violation of Title VII. The court explained that "the threshold for plaintiffs is high, as '[t]he workplace that is actionable is one that is "hellish." ' " Id. at *13, quoting Perry v. Harris Chernin, Inc. ,
II. Analysis
A. Standard of Review
We review de novo the district court's grant of summary judgment. Jackson v. County of Racine ,
B. Racially Hostile Work Environment
The district court ruled that Gates provided insufficient evidence to establish that he was subject to a hostile work environment. To prevail on a Title VII claim, a plaintiff must show that
[1] he is a member of a class protected by the statute, [2] that he has been the subject of some form of adverse employment action (or that he has been subjected to a hostile work environment), and [3] that the employer took this adverse action on account of the plaintiff's membership in the protected class.
Abrego v. Wilkie ,
To prove that an employment environment was actionably hostile, a plaintiff must show that "(1) he was subject to unwelcome harassment; (2) the harassment was based on race (or another protected category); (3) the harassment was severe or pervasive to a degree that altered the conditions of employment and created a hostile or abusive work environment; and (4) there is a basis for employer liability." Robinson v. Perales ,
The district court identified these inquiries properly but erred in their application.
*637Most important, the court incorrectly stated that "the threshold for plaintiffs is high, as '[t]he workplace that is actionable is one that is "hellish." ' " Gates ,
Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers ... The appalling conduct alleged in Meritor , and the reference in that case to environments "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers," merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.
The issue is whether the discriminatory conduct Gates testified to qualifies as sufficiently severe or pervasive to alter the conditions of his work environment. The principal racial harassment Gates described was at the hand of Rivera. Three incidents are key: (1) the 2013 "joke" in which Rivera called Gates the N-word; (2) the 2013 meeting in which Rivera threated to write up Gates's "black ass"; and (3) the 2014 "you people" comment in which Rivera again addressed Gates using the N-word.
We have repeatedly treated a supervisor's use of racially toxic language in the workplace as much more serious than a co-worker's. See, e.g., Robinson ,
In Rodgers v. Western-Southern Life Insurance Co. , we affirmed a verdict for an employee where his supervisor used the N-word multiple times in his presence and made several other racially offensive comments. Rodgers ,
In Johnson v. Advocate Health and Hospitals Corp. , we evaluated plaintiffs' claim that their "supervisors subjected [them] to offensive and derogatory racial comments, creating a hostile work environment."
In Robinson v. Perales , we considered a hostile work environment claim where Robinson, a biracial police officer with the University of Illinois at Chicago presented evidence that Perales, his lieutenant and supervisor, used the N-word in his presence on two occasions, once in reference to Robinson himself.
In short, when the harassment involves such appalling racist language in comments made directly to employees by their supervisors, we have not affirmed summary judgment for employers.
The district court also found that the harassment Gates described was too infrequent to be pervasive (three racial slurs in a sixth-month period of a four-year employment), not objectively offensive, and not "particularly 'severe,' physically threatening, or humiliating." Gates ,
*640Baskerville v. Culligan International Co. ,
Gates testified to quite different circumstances. His supervisor used race-based epithets including the N-word directly and in reference to him. The district court acknowledged the severity of Rivera's epithets, but its analysis did not address the significance of the differences between supervisors and co-workers and between direct and indirect harassment that are important in hostile work environment cases. Gates ,
If the only evidence of racial harassment Gates had was a co-worker's use of the three epithets uttered by Rivera, we would likely reach a different conclusion in this case. Given Rivera's position as Gates's supervisor, however, if a jury credits Gates's testimony about Rivera's comments, it could reasonably find that Gates suffered an actionable hostile work environment. Whether conduct is " 'sufficiently severe or pervasive to alter the conditions of employment' ... depends on '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.' " Johnson ,
C. Waiver & Forfeiture of Remaining Claims
Gates is entitled to a trial on his hostile environment case, but he waived or forfeited all of his remaining claims. He argues, though, that he did not forfeit his Title VII retaliation claim in the district court. We disagree. The Board's motion sought summary judgment on all claims. In opposing summary judgment in the district court, Gates failed to assert that he was subject to a hostile work environment in retaliation for complaining about the discrimination he says he suffered. He did not specifically argue that Rivera or Principal Brandt created a hostile work environment because he reported their discriminatory conduct to Jacob-El or the EEOC. Gates did argue that he was retaliated against, but only in the form of not being promoted and being written up by Rivera. In his summary judgment memorandum, Gates also discussed two of the instances of racially-harassing conduct that he used to support his hostile work environment claim-the incident in which Rivera threatened to write up his "black ass" and the library incident in which Rivera used the N-word. However, he never specifically argued that this conduct was retaliatory. Perhaps Gates could have linked those incidents to his claims of retaliation, but he did not. The district court was not required to address a claim or theory that plaintiff did not assert.
The district court's grant of summary judgment on Gates's hostile work environment claim is REVERSED and the case is REMANDED for further proceedings on that claim consistent with this opinion. In all other respects, the judgment of the district court is AFFIRMED.
Pre-discipline notices notify employees that there is a problem with their work or behavior and that pre-discipline hearings will be held with employees and their union representatives to decide whether discipline is warranted.
The term Chief Engineer was abolished in 2012 under the terms of a collective bargaining agreement. When the title was in use, it applied automatically to any building engineer appointed to a school with only one engineer-so Gates was the Chief Engineer at Goudy.
The district court also granted summary judgment for the Board on Gates's other claims for age and race discrimination based on a denial of a promotion and the pre-discipline notices plus a negative performance review, as well as his retaliation claims based on a denial of a promotion and the pre-discipline notices plus a negative performance review. Gates ,
"Sometimes our cases phrase the test differently, looking instead for evidence that the workplace was both subjectively and objectively offensive-either in lieu of the first prong-that the employee was subject to unwelcome harassment-or the third prong-whether the harassment was severe or pervasive enough to rise to the level of a hostile work environment." Johnson ,
Gates pointed to additional harassing conduct including the pre-disciplinary notices that Rivera issued him, racially offensive conduct by Principal Brandt, and Rivera's general pattern of speaking to Gates in a "demeaning and unprofessional manner." However, the three incidents discussed here are the most severe comments actually considered by the district court at summary judgment and are sufficient for us to decide that the district erred in granting summary judgment to the Board on Gates's Title VII hostile work environment claim. They are also the only three comments that Gates used on appeal to argue that his work environment was offensive enough subjectively and objectively to be actionable.
The district court found more direct support in Roberts v. Fairfax County Public Schools ,
The defendants' brief in the Patt case made clear that "only two of the alleged comments were heard by Dr. Patt [plaintiff] directly" and that "Dr. Patt acknowledge[d] that neither of the references were directed toward her and admitted that neither statement offended her." Brief for Defendants-Appellees at 26, Patt v. Family Health Systems, Inc. ,
The district court here cited the district court opinion in Poullard . See Gates ,