Lead Opinion
Michael Hamm alleges that he was sexually harassed at work by his male coworkers and was terminated as a result of his complaints about the harassment in violation of Title VII. The district court concluded that Hamm could not establish that he was discriminated against “because of’ sex as required by Title VII and granted summary judgment in favor of Hamm’s employer, Weyauwega Milk Products. Because we agree with the district court that Hamm’s evidence only supports work performance conflicts or speculation concerning his sexual orientation, we affirm.
I. BACKGROUND
Michael Hamm, a heterosexual male, began working at Weyauwega Milk Products, a producer of dairy products including cheese, in 1992. Hamm held numerous positions during his employment- and his job responsibilities generally included cleaning the equipment and work area, maintaining the supplies, and filling in for other production employees during breaks or days off. Hamm was regarded as a good employee until approximately 1997, when Weyauwega hired a friend of Hamm’s, Jeff Zietlow. Beginning in early 1998, Hamm filed a number of complaints with Weyauwega management and with the Wisconsin Equal Rights Division (ERD) alleging harassment by his male coworkers. The Weyauwega plant where Hamm worked was almost entirely male; no women worked in any of the areas of the plant in which Hamm worked.
Hamm filed his first written complaint with Weyauwega management on January 15, 1998, stating that Dean Bohringer, one of Hamm’s coworkers, threatened that if Hamm did not do his job properly, then Bohringer would “kick [his] ass to make [him] do so.”
Also, beginning in late 1997, and continuing into 1998, Weyauwega began to have concerns about Hamm’s work performance. Many of the complaints about Hamm’s work performance by Weyauwega management and Hamm’s coworkers cen
During the summer of 1998, Weyauwega documented a number of work errors committed by Hamm including failing to perform his work duties, damaging a milk truck, and spending too much time talking to Zietlow. Weyauwega eventually gave Hamm a final written warning letter dated August 18, 1998 instructing him to 1) stop the horseplay in which he was involved, 2) stop talking to Jeff Zietlow other than for job-related activities, and 3) cooperate with fellow employees and act as a team player.
In September of 1998, Hamm filed his first complaint with the ERD. His complaint alleged that he was called a “fag-got,” “bisexual,” and “girl scout,” and that his coworker Dean Bohringer threatened to snap his neck and threw things at him. Hamm also stated he was retaliated against for reporting these incidents to Weyauwega management. In response to Hamm’s complaints, Weyauwega set up a meeting between Weyauwega management, Hamm, and Bohringer. During the meeting, Bohringer apologized to Hamm, and Hamm promised to focus on correctly performing his job.
Although exact dates of its genesis are unknown, it is undisputed that during this time a rumor existed among workers at the plant that Hamm and Zietlow’s friendship was romantic in nature. Hamm’s coworkers thought it odd when Hamm gave Zietlow a boat and let him use his four-wheel vehicle. The sometimes contentious nature of their friendship also drew the attention of coworkers. Hamm called the police department in January 1999 to report that Zietlow, then under age 21, was in a bar drinking and again in February 1999 to report that Zietlow threatened him. Around the same time, Hamm called the police to report that his vehicle had been damaged in the Weyauwega parking lot, and he indicated in his deposition that he believed Zietlow had damaged the vehicle. He also reported that Zietlow had scratched his face. Hamm sued Zietlow in January of 1999 for the return of his four-wheeler, two chain saws, and money that Zietlow had borrowed but not returned. Zietlow was suspended by Weyauwega in early 1999 for striking Hamm’s brother, Joe Hamm, also a plant employee, with a pipe. After Zietlow returned to work, Hamm reported that Zietlow soaked him with a water hose. Zietlow was terminated in March of 1999.
Hamm filed his second complaint with Weyauwega on March 24, 1999, claiming that coworker Fred Kivisto accused Hamm of “looking out of the corner of my eyes at him” and had threatened Hamm with a pipe. Hamm also alleged that Kivisto told coworkers that Hamm was a homosexual and warned them not to bend over in front of him. Kivisto admitted in his deposition that he told Hamm “not to be sizing me up.”
Weyauwega investigated Hamm’s newest complaints. According to Weyauwega, its interviews with Hamm’s coworkers revealed that they were frustrated with his inability to complete work tasks correctly and with his instigation of problems and rumors at the plant. During his interview for the investigation, Hamm suggested that Bohringer and Fischer were trying to get him fired.
Hamm also filed a second complaint with the ERD in early June 1999, alleging retaliation by his coworkers for filing his first ERD complaint. Hamm alleged, among other things, that Carl Wodrich, a coworker, and Fischer complained about Hamm’s work performance and interfered with his work equipment in retaliation for Hamm’s ERD complaint; that Kivisto threatened him with a pipe; that Frank Young, another coworker, threatened to “shove the water hose up [Hamm’s] ass” after he was hit with the water from the hose; that management “thought I was ‘that way’ because they had reason to believe Jeff Zietlow might be ‘that way’”; and that “Dean Bohringer stated I was a worthless piece of human flesh and later on shoved me or purposely ran into me in the hallway.”
Weyauwega offered Hamm a severance agreement on June 14, 1999, with two and one-half weeks’ pay; Hamm negotiated an increase to seven weeks’ pay on June 15, 1999, but left his final approval of the agreement open. Hamm underwent an exit interview reviewing COBRA and 401(k) paperwork, and Hamm cleaned out his locker. Hamm was not scheduled for work again, and he filed a claim for unemployment compensation on June 22, 1999. In a letter dated July 7, 1999, Weyauwega informed Hamm that it regarded him as “voluntary quit” as of July 1, 1999, unless he agreed to an enhanced severance agreement.
On July 9, 1999, Hamm filed a third complaint with the ERD restating his complaints about Bohringer’s outburst while Hamm was on the forklift and the comments by Kivisto. He also alleged that he was terminated in retaliation for his complaints.
In September of 2000,’ Hamm filed suit in federal court, alleging that he was sexually harassed and retaliated against for filing complaints with Weyauwega and with the Wisconsin Equal Rights Division in violation of Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. After at least nineteen depositions were taken and discovery was exchanged, Wey-auwega moved for summary judgment. The district court granted summary judgment in favor of Weyauwega. Hamm appeals.
II. ANALYSIS
We review the district court’s decision to grant summary judgment de novo. Hilt-Dyson v. City of Chicago,
A. Sexual harassment claim
Hamm’s claim, that he was sexually harassed by his male coworkers, requires us to navigate the tricky legal waters of male-on-male sex harassment. The protections of Title VII extend to both women and men. Oncale v. Sundowner Offshore Servs., Inc.,
Hamm alleges that his coworkers did not believe he fit the sexual stereotype of a man, and that their sexual stereotyping is evidence of discrimination “because of’ sex.. See, e.g., Price Waterhouse v. Hopkins,
Hamm’s own characterizations of many of the occurrences underlying his complaint demonstrate that he believed they were related to his job performance. For example, when explaining Bohringer’s alleged verbal abuse during his deposition, Hamm surmised that Bohringer swore at him “because apparently he figured I didn’t do my job.” This rationale is a restatement of Hamm’s January 15, 1998 complaint in which he alleged that Boh-ringer threatened to “put him in a wheelchair” and “snap his neck” and threw a chemical barrel across the room after find
Expressions of frustration with Hamm’s work performance were not limited to Bohringer. Hamm’s June 1999 ERD complaint succinctly explains an episode with Frank Young: “On May 4th Frank Young threatened to shove a water hose up my ass for not doing my job correctly.” Hamm also alleges that Mike Fischer tried to force his equipment to malfunction, but also complains that Fischer “made up a story I was not doing my job.” Hamm has not produced any evidence to show that these episodes are related to anything other than work-related disputes. See Spear-man,
With respect to the other incidents that Hamm submits as evidence of harassment, all the evidence points to the conclusion that they relate to speculation by his coworkers about his sexual orientation. Again, Hamm’s own comments indicate that he perceived the conduct of his coworkers to relate to their belief about his sexual orientation. Hamm admits that his close friendship with Jeff Zietlow was perceived by his coworkers to be romantic in nature. In his first complaint to the ERD, he explained, “Dean Bohringer believes that me and another individual are gay at work, he constantly refers to me and Jeff Zietlow as faggots. Dean has threatened to kill me, snap my neck for what he thinks to be true.” In a note written November 12, 1998, and appended to his deposition, Hamm links judgment of his sexuality by his peers to several of his allegations: “I am single so therefore it would more so [be] believed that I was homosexual, I have had numerous people at the plant pick on me on account of this.... ” His March 24, 1999 complaint contains a similar explanation: “Fred tells me and other people that I am homosexual and not to bend over by me.... I am so sick of being threatened for what people perceive!”
In addition to assessing the way in which his coworkers’ statements were experienced by Hamm, see Oncale,
“Hamm testified that during free time, more specifically, ‘every evening and every day,’ employees spray each other with water hoses; that someone stuck a bed in the women’s locker room as a prank; that Weyauwega employees went into a coworkers’ locker and ‘labeled his Vaseline jack-off jelly’; and that Bohringer would frequently wres-*1064 tie/engage in physical horseplay with coworkers during work time. Hamm’s brother, Joe Hamm, confirmed that horseplay takes place at Weyauwega, including employees spraying each other with water hoses daily and throwing cheese curds at each other numerous times each day.”
Even Hamm’s claim that Bohringer referred to him as “girl scout,” the strongest factual allegation he makes that his coworkers’ actions were linked to his noncon-formance to sex stereotypes, does not establish that he was discriminated against because of his sex. In his deposition, Boh-ringer alleged that he referred to his colleagues with this term indiscriminately, and one of Weyauwega’s managers, Dan Stearns, testified that Bohringer had even used the term to refer to him. Hamm acknowledges that Bohringer called other men at the plant “girl scouts,” but he calls this fact “immaterial.” Bohringer’s use of the term to refer to other men, including a supervisor, is hardly immaterial; Hamm cannot point to its use as persuasive evidence that he was treated differently because of his sex when other men at the plant were referred to by the same name. Because there is nothing to suggest that Bohringer viewed the other men at the plant as nonconforming to sexual stereotypes, his use of the term to describe Hamm cannot support an inference of sex discrimination.
That the conduct complained of by Hamm does not fall within a sexual stereotyping claim cognizable under Title VII is made even more evident by a comparison to the cases in which courts have found such a claim. In Price Waterhouse, the plaintiff was a woman passed over for a promotion, and partners in the company remarked that she was “macho,” “overcompensated for being a woman,” and needed to “walk more femininely, talk more femininely, dress more femininely, wear more make-up, have her hair styled, and wear jewelry.”
Hamm’s case more closely tracks Spearman v. Ford Motor Co.,
B. Retaliation claim
Hamm also alleges that he was terminated by Weyauwega in retaliation for fil
Title VII prohibits an employer from discriminating against an employee “because he has opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). In other words, Title VII protects an employee from “retaliation for complaining about the types of discrimination it prohibits.” Miller v. Am. Family Mutual Ins. Co.,
Hamm’s sexual harassment claim fails because he has not shown that he was discriminated against “because of’ sex, as required under Title VII. His retaliation claim was properly decided by the district court for the same reason: his complaints to Weyauwega and the ERD did not concern an employment practice that violated Title VII. See Hamner,
III. CONCLUSION
For the forgoing reasons, we AffiRm the decision of the district court.
Notes
. Many of the comments made in connection with Hamm’s complaints contain vulgar and offensive language, but we believe direct quotes of the language used are required in order to accurately describe Hamm's allegations.
. Beginning in late summer 1998, Hamm also filed a number of reports with Weyauwega police regarding incidents at work or involving work employees. For example, in August 1998, Hamm complained that he was being verbally abused at work, stating that his coworkers were yelling at him, complaining that he was not doing his job, and turning his machines on and off. As similar claims were made in Hamm's complaints to Weyauwega and the ERD, we address these allegations through Hamm's complaints to those organizations.
. Our analysis focuses on Hamm’s need to show he was discriminated against “because of' sex because this appears to be the only element of Hamm’s sexual harassment claim contested by Weyauwega. For example, Wey-auwega’s brief does not discuss important questions such as whether all of the allegedly discriminatory conduct occurred within 300 days of the filing of Hamm's complaint or is properly considered under the continuing violation doctrine, see Hall v. Bodine Electric Co.,
. Other allegations Hamm makes in support of his sex harassment claim do not add up. For instance, Hamm argues that Bohringer called him “kid” and remarked that he had a high-pitched voice. Hamm takes these statements out of context from Bohringer’s deposition; Bohringer commented that Hamm’s voice was high-pitched when describing how Hamm screamed at him. In another example, Hamm argues that Kivisto threatened to take him to Lake Michigan and leave him at the bottom of the lake. Yet Hamm concedes in his deposition that this incident took place almost five years before he first complained of harassment, and thus it cannot be used to support his claim.
. We recognize that distinguishing between failure to adhere to sex stereotypes (a sexual stereotyping claim permissible under Title VII) and discrimination based on sexual orientation (a claim not covered by Title VII) may be difficult. This is especially true in cases in which a perception of homosexuality itself may result from an impression of non-conformance with sexual stereotypes. Doe,
Concurrence Opinion
concurring.
Judge Williams’s opinion is consistent with the cases and the facts, and it reaches a result (denial of liability) that I agree with. I cannot fairly quarrel with the methodological conservatism of her approach. But I think it worth recording my conviction that the case law has gone off the tracks in the matter of “sex stereotyping” and that if it got back on, this case could be decided on a simpler and more intuitive ground and one that would reduce future litigation.
The ease law as it has evolved holds, as Judge Williams explains, that although Title VII does not protect homosexuals from discrimination on the basis of their sexual orientation, it protects heterosexuals who are victims of “sex stereotyping” or “gender stereotyping.” Spearman v. Ford Motor Co.,
The origin of this curious distinction, which would be very difficult to explain to a lay person (an indication, often and I think here, that the law is indeed awry), is the Supreme Court’s decision in Price Waterhouse v. Hopkins,
The “logic” of the extension is that if an employer disapproves of conduct by a man that it would not disapprove of in a woman, or conduct by a woman that it would not disapprove of in a man, the disapproval is “because of’ sex. What is true, as I have said, is that this asymmetry of response may be evidence of sex discrimination; but to equate it to sex discrimination is a mistake. If an employer refuses to hire unfeminine women, its refusal bears more heavily on women than men, and is therefore discriminatory. That was the Hopkins case. But if, as in this case, an employer whom no woman wants to work for (at least in the plaintiffs job classification) discriminates against effeminate men, there is no discrimination against men, just against a subclass of men. They are discriminated against not because they are men, but because they are effeminate.
If this analysis is rejected, the absurd conclusion follows that the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals. To impute such a distinction to the authors of Title VII is to indulge in a most extravagant legal fiction. It is also to saddle the courts with the making of distinctions that are beyond the practical capacity of the litigation process. Hostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter, especially the former. Effeminate men often are disliked by other men because they are suspected of being homosexual (though the opposite is also true — effeminate homosexual men may be disliked by heterosexual men because they are effeminate rather than because they are homosexual), while mannish women are disliked by some men because they are suspected of being lesbians and by other men merely because they are not attractive to those men; a further complication is that men are more hostile to male homosexuality than they are to lesbianism. To suppose courts capable of disentangling the motives for disliking the nonstereotypical man or woman is a fantasy.
Inevitably a case such as this impels the employer to try to prove that the plaintiff is a homosexual (the employer’s lawyer actually said at the argument that a plaintiffs homosexuality would be a complete defense to a suit of this kind) and the plaintiff to prove that he is a heterosexual, thus turning a Title VII case into an inquiry into individuals’ sexual preferences — to what end connected with the policy of the statute I cannot begin to fathom. An unattractive byproduct of the inquiry is a gratuitous disparagement of homosexuals — as when Hamm in his brief, remarking on how “his harassers tormented him with the ultimate attack on his masculinity, namely, barraging him with every vulgar, slang phase for a homosexual,” concludes: “For a heterosexual male, such slurs are tantamount to verbal castration” (emphasis
“Sex stereotyping” should not be regarded as a form of sex discrimination, though it will sometimes, as in the Hopkins case, be evidence of sex discrimination. In most cases — emphatically so in a case such as this in which, so far as appears, there are no employees of the other sex in the relevant job classification — the “discrimination” that results from such stereotyping is discrimination among members of the same sex. The distinction can be illustrated by a pair of examples. If the producer of Antony and Cleopatra refuses to cast an effeminate man as Antony or a mannish woman as Cleopatra, he is not discriminating against men in the first case and women in the second, although he is catering to the audience’s sex stereotypes. But if a fire department refused to hire mannish women to be firefighters, this would be evidence that it was discriminating against women, because mannish women are more likely than stereotypically feminine women to meet the demanding physical criteria for a firefighter.