The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
From 1992 to October 1995, Mr. O'Hara worked as a janitor for
the Department at a different facility. In September 1995, he was
charged with assaultative conduct and disruption of the worksite,
in particular, acting in a belligerent and aggressive manner at a
co-worker's grievance hearing in August 1995, where he falsely
represented himself as a union steward, was asked to leave,
refused to do so, and continued to yell at those in the room. He
was fired on October 10, 1995. After grievance arbitration, he
was allowed to submit his resignation effective January 7, 1996,
and the discharge was reversed to "separation/no reason,"
although Mr. O'Hara says the union local did this deal without
Mr. O'Hara filed an EEOC charge alleging race and sex
harassment, discrimination, and retaliation, and got a right to
sue letter on January 12, 1996. He filed this lawsuit in November
1996, alleging violations of Title VII and civil rights laws
under 42 U.S.C. § 1981 (race) & 1983 (free speech). The
defendants move for summary judgment, and I grant the motion,
finding in their favor and against Mr. O'Hara.
Summary judgment is a way of resolving a case where there would
be no point in a trial. It is appropriate where there is no
material issue of fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). This means that
if the facts argued by (here) the plaintiff would not support a
verdict in his favor even if they were believed, there would be
no reason to have a trial to find out if they were true. In
considering a summary judgment motion, I take the facts in the
light most favorable to Mr. O'Hara, Fulk v. United Transp.
Union, 160 F.3d 405, 407 (7th Cir. 1998), but Mr. O'Hara must
come forward with enough evidence so that a rational jury could
find for him at trial. Anderson v. Liberty Lobby, 477 U.S. 242,
249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Mr. O'Hara was represented by counsel when he filed this
lawsuit, but is now proceeding without a lawyer. I must "ensure
that the claims of a pro se litigant are given a fair and
meaningful consideration." Palmer v. City of Decatur,
814 F.2d 426, 428-29 (7th Cir. 1987). Pro se pleadings are to be "held to
less stringent standards than those prepared by counsel." Donald
v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.
1996). However, I am not Mr. O'Hara's lawyer, and while I will
give him every reasonable benefit of the doubt, I will not make
his case for him.
The defendants claim that the majority of Mr. O'Hara's claims
are time barred, having occurred more 300 days before he filed
discrimination charges. They argue that only his actual
termination and two other minor incidents of alleged harassment
are within the limitations period. However, these events come
back into the lawsuit on the continuing violations doctrine,
under which conduct that falls outside the limitations period is
actionable if it is linked with related acts that fall within the
period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The
doctrine is applicable when the conduct can be recognized as
actionable only in the light of later events that occurred within
the limitations period, Filipovic v. K & R Express Sys., Inc.,
176 F.3d 390, 396 (7th Cir. 1999), because the plaintiff had no
to believe that he had been subject to actionable conduct when
the events outside the limitations period occurred. Selan, 969
F.2d at 565-66. That is true here, although as will emerge it is
largely irrelevant because Mr. O'Hara has waived most of the
I begin with Mr. O'Hara's Title VII claims. His first theory is
race harassment. A plaintiff may establish a violation of Title
VII by proving that discrimination based on race, sex, or some
protected characteristic has created a hostile or abusive work
environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67,
106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Harassment must be
sufficiently severe or pervasive to make the workplace
intolerable for the members of the group discriminated against.
Minor v. Ivy Tech State College, 174 F.3d 855, 857 (1999).
Moreover, harassment is actionable only if it is "because of"
race or some other protected characteristic. Shermer v. Illinois
Dep't of Transp., 171 F.3d 475, 477 (7th Cir. 1999). Title VII
does not impose liability on an employer for creating or
condoning a hostile working environment unless the hostility is
motivated by some status that the statute protects. Heuer v.
Weil-McLain, 203 F.3d 1021, 1024 (7th Cir. 2000). Mr. O'Hara
presents no evidence that he was harassed because of his race or
sex. He swears in an affidavit that:*fn1
(1) He was "segregated" from eating in the lunchroom with his
co-workers or written up if he was observed in the lunchroom
eating. Even if so, Mr. O'Hara would have to offer, e.g., (1)
direct evidence of discriminatory motivation, for example, racist
remarks in connection with this "segregation," or (2) evidence
that similarly situated whites were not thus "segregated" or
written up for using the lunchroom, or that similarly situated
African-American men, if any, were also thus "segregated" or
written up. Otherwise, the evidence is just that Mr. O'Hara may
have been unfairly treated, but not necessarily because of race.
He offers no evidence whatsoever of racial or other illegal
Mr. O'Hara says that he could offer such evidence at trial and
has witnesses who could testify for him, but he does not say who
they are or what they would say.*fn2 I read the record and all
reasonable inferences to be drawn from it in his favor, but I
can't just take his word that the evidence exists and, if
believed, would justify a verdict in his favor. He must come
forth with the evidence. See Liu v. T & H Machine, Inc.,
191 F.3d 790, 796-97 (7th Cir. 1999). Although I give Mr. O'Hara the
benefit of the doubt, unargued claims are treated as waived, that
is, in effect not made. United States v. Payne, 102 F.3d 289,
293 (7th Cir. 1996).
(2) Mr. O'Hara says that false allegations were made that he
allegedly sexually assaulted a patient and made a death threat,
but both allegations were found on investigations to have been
groundless. However, Mr. O'Hara does not offer any evidence tying
the investigations or any false allegations to racial or other
prejudice. There was an allegation of patient abuse while Mr.
O'Hara was on duty; he among others was investigated as required
by Department policy, and was not a suspect. The state police
anonymous death threat received by Department supervisors in the
mail, but Mr. O'Hara was not disciplined for anything relating to
this investigation. In the circumstances, failing to investigate
Mr. O'Hara would have been irresponsible, and so investigating
him was not adverse action, harassment, or other discrimination,
as long as he was not singled out for no good reason, and he was