Warnether A. MUHAMMAD, Plaintiff-Appellant, v. CATERPILLAR, INC., Defendant-Appellee.
No. 12-1723.
United States Court of Appeals, Seventh Circuit.
Sept. 9, 2014.
Oct. 16, 2014.
Argued Oct. 4, 2013. As Amended on Denial of Rehearing Oct. 16, 2014.
That is not what the rule says. It provides: “Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.” The email was not introduced to prove that West Side acted negligently. It was introduced as part of an effort (unsuccessful, we have held) to prove that ConAgra is liable. The jury‘s ability to infer that West Side carried insurance—something that plaintiffs’ counsel never argued—should have been addressed, if at all, under Rule 403 rather than Rule 411. Yet West Side does not argue that the district judge abused his discretion in not excluding or redacting the email under Rule 403 to eliminate a risk of unjustified prejudice; indeed, West Side does not mention Rule 403 in this court. What‘s more, any error on the district court‘s part was harmless. The verdicts so far exceed $3 million that the jury‘s belief that West Side carried that much insurance cannot have played a material role.
The judgment against ConAgra is reversed. The contract judgment in favor of ConAgra and against West Side is affirmed. The award of punitive damages against West Side is reversed, and the awards of compensatory damages against West Side are affirmed. We remand to the district court for the limited purpose of determining how these decisions affect indemnification or contribution. ConAgra recovers its costs; plaintiffs and West Side bear their own costs.
Donald R. Jackson, Peoria, IL, for Plaintiff-Appellant.
Jason M. Torres, Joseph S. Turner, Seyfarth Shaw LLP, Chicago, IL, for Defendant-Appellee.
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge.
We recite the facts in the record in the light most favorable to Muhammad. See Cannon v. Burge, 752 F.3d 1079, 1088 (7th Cir.2014). In 2006, after some of Muhammad‘s coworkers made offensive comments, both orally and in writing, about his race and his perceived sexual orientation, Muhammad complained to management, and the company responded.
The offensive oral comments occurred over the course of several months and came from three different employees. In the first incident, a coworker called Muhammad a “black nigger.” Muhammad complained to human resources. After the complaint, that employee never made any further racial comments to Muhammad. A different coworker stated that he did not like Muhammad‘s “black faggot ass,” and Muhammad reported the statement to his supervisor, Kipp Edwards, who brought the complaint to human resources. Muhammad had no subsequent problems with that employee. Finally, yet another employee told Muhammad that her grandchildren are black, that she does not like them or black people generally, and that she wished her daughter had dated a white man. Edwards brought that complaint to human resources as well. The next month, the same employee commented to Muhammad that “his black butt should have stayed fired,” but Muhammad never reported this single, additional incident to Caterpillar.
The company also responded to offensive comments that were scrawled on the walls of the bathroom nearest Muhammad‘s workstation in August 2006. The vandal (or vandals) wrote that Muhammad “is a fag, a know it all fag,” that he “sucks Kippy dick” (an apparent reference to his supervisor Kipp Edwards), that he has AIDS, and that he is a “black nigger” who “should be killed.” Muhammad reported the graffiti to Edwards on August 11. Ed
Around that time (though we cannot tell precisely when), Edwards addressed the graffiti problem further by discussing it with all of Muhammad‘s coworkers at a shift meeting. When more graffiti appeared on August 30, Edwards once more had the walls repainted, and each person on Muhammad‘s line was individually warned that anyone caught defacing the walls would be fired immediately. No more graffiti appeared.
Roughly six weeks had passed when, on October 12, an incident occurred that resulted in Muhammad‘s suspension. On that day, Muhammad left his work station during a nonbreak time to use the restroom, and checked the bid board for postings before returning to his station. Edwards confronted Muhammad concerning his use of work time to check the bid board.
The facts are in dispute as to what happened next. Edwards contends that Muhammad responded with disrespectful comments, and walked away from Edwards when he was trying to discuss the matter. Muhammad asserts that he did not act in that manner, but also states that he did not want to engage in a discussion without a union representative present. It is undisputed that Edwards decided to indefinitely suspend Muhammad and that he walked Muhammad out of the plant at that time, allegedly for insubordination. Edwards had authority only to suspend employees pending the investigation of the alleged misconduct by the company. After that internal investigation, the suspension of Muhammad was deemed appropriate. Muhammad filed a grievance through his union representative and was allowed to return to work on November 2, 2006. He was later suspended a second time and then terminated based on his conduct with his coworkers upon his return. Following the settlement of his grievance of the termination, he returned to work at Caterpillar again in July 2008 with no back pay, and was laid off due to a reduction in force in April 2009. He was later rehired at Caterpillar where he remains employed.
Based on the incidents of August-October 2006, Muhammad filed his charges of harassment and retaliation with the EEOC, and in June 2009 he received his right-to-sue letter. Shortly thereafter he filed this suit, alleging that he was harassed with offensive comments about his perceived sexual orientation and his race and that Edwards suspended him in retaliation for reporting the offensive graffiti to the shift supervisor.
The district court granted summary judgment for Caterpillar. In rejecting the claim of sexual harassment, the court relied on our decision in Spearman v. Ford Motor Company, 231 F.3d 1080, 1085 (7th Cir.2000), which held that the
On appeal, Muhammad argues that his coworkers’ derogatory comments about sexual orientation were based on his sex. He asserts that his coworkers would not have directed their comments “towards a female in the workplace notwithstanding her sexual preferences” and that “[i]t is conceivable to believe that he was harassed because he was a male who did not, in the mind [sic] of his harassers, act like a male.”
A fundamental obstacle blocks Muhammad‘s claim that Caterpillar is liable for sexual and racial harassment: Caterpillar reasonably responded to Muhammad‘s complaints. See Berry v. Chicago Transit Auth., 618 F.3d 688, 692 (7th Cir. 2010) (explaining that employer cannot be liable if it “took prompt action that was reasonably likely to prevent a reoccurrence.“) After Muhammad reported to Caterpillar his coworkers’ offensive comments and the company responded, only one of the coworkers made another similar remark. But Muhammad never reported that isolated statement. “An employer is not liable for co-employee sexual harassment when a mechanism to report the harassment exists, but the victim fails to utilize it.” Durkin v. City of Chicago, 341 F.3d 606, 612-13 (7th Cir.2003); see also Montgomery v. American Airlines, Inc., 626 F.3d 382, 392 (7th Cir.2010) (“An aggrieved employee must at least report—clearly and directly—nonobvious policy violations troubling him so that supervisors may intervene.“).
As for the graffiti, Caterpillar responded quickly each time Muhammad reported it, and it soon stopped the problem permanently. The company engaged Nu-Air three times in August to paint over the offending comments; two of those times were within three days of each other. Muhammad‘s supervisor, Edwards, also addressed the graffiti problem at a shift meeting, and after the third repainting, each coworker on Muhammad‘s line was warned that Caterpillar would immediately fire any employee caught defacing the walls. Muhammad concedes that the graffiti never reappeared after that warning.
Even though the graffiti never resurfaced after the threat to terminate offenders, Muhammad insists that Caterpillar should have done more to identify who was responsible for the graffiti and to punish all coworkers who harassed him. But
That leaves only Muhammad‘s retaliation claim.
Muhammad has not identified any similarly-situated persons who were treated differently, and in fact eschews any reliance on the “indirect method” of establishing retaliation. See generally Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir.2014) (noting that retaliation can be proven using either the direct or indirect method and setting forth the factors relevant to each method). He instead argues that he should survive summary judgment under the direct method of proof, under which a plaintiff may demonstrate through direct or circumstantial evidence that the adverse action by the employer was motivated by an impermissible purpose. Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir.2003). This may include, for example, such direct evidence as an admission by the employer of an impermissible animus. In addition, it includes circumstantial evidence that is strong enough, taken as a whole, to allow the trier of fact to draw the inference of such animus. Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir.2013). We have used the metaphor of a “convincing mosaic of circumstantial evidence,” evincing the image of a mosaic whose individual tiles add up to a complete picture, but that is just one means of conceptualizing the requirement that the circumstantial evidence must be sufficient to support the necessary inference. Id.; Sylvester v. SOS Children‘s Villages Illinois, Inc., 453 F.3d 900, 903-04 (7th Cir.2006)
Muhammad acknowledged that he left his workstation during a non-break time to use the restroom, and that he checked the bid board to see what jobs were posted in the plant before returning to the station. He concedes that Edwards confronted him concerning his use of non-break time to check the bid board. Although he states that he did not walk away while Edwards was speaking to him, his testimony is vague as to what happened. He acknowledged in his testimony that he did not want to discuss the situation with Edwards without union representation, and in his response to the motion for summary judgment below he appears to employ that as a justification for his refusal to continue the conversation: “Edwards stated that [the suspension] was because [Muhammad] walked away from him when he was discussing his absence from his work station. But Muhammad wanted a Union Steward to be present because he feared disciplinary action would be discussed.” Whether or not Muhammad walked away, it is undisputed that Edwards approached Muhammad with a concern about his work performance, and that some conflict arose in the course of discussing the matter. After that engagement, Edwards decided to suspend Muhammad and walked him out of the plant. Such evidence is consistent with the defendant‘s characterization of the suspension as having been based on Muhammad‘s conduct in the course of that discussion.
The evidence submitted by Muhammad indicating that the suspension was retaliatory in violation of
Muhammad also asserts that his actions in checking the bid board could not have been the actual reason for his suspension because he personally knows of others who engaged in similar conduct and were not disciplined. But Muhammad provides no names, affidavits, or other evidence as to such persons. Moreover, the argument ignores that Edwards premised the suspension on his handling of the conversation about the bid board, not his conduct in checking the bid board. Muhammad has provided only conjecture as to the reason for his suspension and that is insufficient to survive summary judgment. Accordingly, the district court did not err in granting summary judgment on the retaliation claim as well.
The decision of the district court is AFFIRMED.