The opinion of the court was delivered by: Honorable Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Jonathan Williamson, who is African-American, sued his former employer, Denk & Roche Builders, Inc. ("Denk & Roche"), alleging that Denk & Roche subjected him to a racially hostile work environment in violation of 42 U.S.C. § 1981 ("Section 1981") (Count 1), retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") (Count 2) and Section 1981 (Count 3), and violated the EEO-1 Report filing requirement of Title VII (Count 4). Denk & Roche is a builder, with projects located primarily in suburban metropolitan Chicagoland. Denk & Roche hired Williamson, a carpenter who was primarily an interior trimmer, on July 12, 1998, and ultimately laid him off on December 14, 2004. Denk & Roche has moved for summary judgment, and separately moved for judgment.
In responding to Denk & Roche's motion, plaintiff barely makes an effort to present his arguments in a developed fashion. He fails to respond properly to Denk & Roche's Rule 56.1 statements and fails to respond directly to most (if not all) of Denk & Roche's arguments. Plaintiff essentially has merely restated the allegations in his complaint. Despite these failings, the court has done its best to analyze plaintiff's claims, as it has a duty to ensure that the moving party is indeed entitled to summary judgment. For the reasons explained below, Denk & Roche's motion for summary judgment is granted and its motion for judgment is denied as moot.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party opposing summary judgment may not rest upon the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial unless there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Count 1: Hostile Work Environment Under Section 1981
Claims under Section 1981 are analyzed using the same framework as Title VII claims. Williams v. Waste Management of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). In order to survive summary judgment, a plaintiff alleging racial harassment must show that: (1) he was subjected to unwelcome harassment; (2) the harassment was based on race; (3) the harassment was sufficiently severe or pervasive so as to alter the conditions of the employee's employment and create a hostile or abusive atmosphere; and (4) there is a basis for employer liability. Williams, 361 F.3d at 1028 (citing Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000)).
Plaintiff argues that the following comments created a racially hostile environment: (1) On March 21, 2003, Superintendent Ulick O'Reilly told plaintiff that "We have plenty of work in the city. We even have work in the ghetto where you live."*fn1 ; (2) Yrek, a fellow carpenter, told Williamson that on April 22, 2002, O'Reilly "had told him that it was time to get rid of the court monkeys[.]"; (3) On February 19, 2004, Williamson was on a jobsite where a port-a-john contained graffiti stating "All the way with KKK[.]"; (4) Sometime shortly before June 5, 2004, Williamson was on a jobsite where a port-a-john contained graffiti stating "What do you call a Black woman having an abortion? A crime stopper."; and (5) Sometime before March 2003, Caputo, a supervisor, while passing out paychecks, commented that Williamson probably did not need the money because of his "night-time hustle."*fn2
Denk & Roche responds to plaintiff's allegations by arguing that, even when viewed in the light most favorable to plaintiff, these were isolated incidents that did not amount to a hostile work environment. While O'Reilly admitted using the work "ghetto" to plaintiff and stated that he defined the word as a part of the city "mostly inhabited by a minority" or "kind of an impoverished part of the city," he also asserted that he did not think Williamson lived in the ghetto and did not view the use of the word "ghetto" as offensive. In explaining his use of the phrase "court monkeys," O'Reilly admitted to having used the phrase on several occasions and asserted that he was referring to carpenters who fail to come to work claiming they have to be in court. With respect to Caputo's comment about "night-time hustle," Caputo admitted to using the phrase "night-time hustle" on many occasions over the years when referring to the side jobs which many carpenters have. With respect to the two incidents involving racially offense graffiti at two different work sites, Denk & Roche put forward undisputed evidence that it does not control the port-a-johns on jobsites -- the port-a-johns are owned and maintained by the general contractor of the jobsite. It is also undisputed that the port-a-johns are open and used by many other subcontractors and other visitors to the jobsite. The undisputed evidence also shows that Denk & Roche took steps to make sure the graffiti was removed from the port-a-johns.
As an initial matter, some of the evidence relied upon by Williamson cannot be considered by the court in analyzing the hostile work environment claim. First, the impact of the two incidents of racist graffiti in the portable toilets is countered by Denk & Roche's response in having the graffiti promptly removed from the jobsite as soon as Williamson told his supervisors about it. Despite Denk & Roche's arguments to the contrary,*fn3 the court will consider the racist comments in the portable toilets, as these comments were part of Williamson's hostile workplace environment claim. However, Denk & Roche may avoid liability on these comments if it took reasonable steps to remedy the situation as soon as it was informed of the racist graffiti. In this case, Williamson does not allege that the graffiti came from any supervisor at Denk & Roche. As such, non-supervisory harassment is actionable only where the plaintiff shows that the employer knew or should have known about the harassment and that it failed to take appropriate remedial action. Cerros v. Steel Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005). Denk & Roche presented undisputed evidence that it took steps to have the graffiti removed from the toilets as soon as Denk & Roche was aware of the graffiti's existence. Further, Williamson makes no argument that Denk & Roche's response to the graffiti was unreasonable. In fact, the undisputed evidence shows that after the second graffiti incident, Williamson drafted a thank you note in which he recognized that the graffiti was removed and thanked his supervisors for their "expedited successful collaborative effort of correcting the matter." In light of this, the two incidents of racist graffiti cannot be considered by the court in evaluating Williamson's hostile work environment claim. Further, supervisor Caputo's use of the phrase "night time hustle" when handing out paychecks is ambiguous; it does not have an obvious racial component, especially when viewed in light of the undisputed evidence that Caputo used this phrase with many employees, and there is no evidence suggesting that he used this phrase only with African-Americans. The court for these reasons cannot consider this comment in evaluating Williamson's hostile work environment claim.
In order for a plaintiff to survive summary judgment, he must show that the harassment he was subjected to was "severe" or "pervasive." Williamson undoubtedly was subjected to an offensive racist comment by O'Reilly when he said that Williamson lived near the "ghetto" (which O'Reilly does not deny saying), and by O'Reilly's indirect*fn4 racist comment that the company should get rid of "court monkeys" (which O'Reilly also does not deny saying) made to another employee. While O'Reilly's racist comments are appalling, particularly in view of his supervisory role, these isolated comments, however insensitive, do not constitute the kind of "severe" or "pervasive" harassment necessary to withstand a motion for summary judgment. See Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998) (court must consider frequency and severity of discriminatory conduct, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it reasonably interferes with an employee's work performance); Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 977 (7th Cir. 2004) (workplace must be "hellish" to be actionable). In the end, Williamson was subjected to two isolated racist remarks that do not rise to the level required to prove a hostile work environment. Denk & Roche's motion for summary judgment is granted as to Count 1.
Count 2: Retaliation Under Title VII
A plaintiff bringing a retaliation claim can survive summary judgment in two ways: by means of either the direct or the indirect method. Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002). Under the direct method, the plaintiff must establish a prima facie case by presenting direct evidence that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the two. Luckie v. Ameritech Corp. 389 F.3d 708, 714 (7th Cir. 2004). Under the indirect or "burden-shifting" method, the plaintiff must establish that: (1) he engaged in statutorily protected activity; (2) he was performing his job according to his employer's legitimate expectations; (3) despite his satisfactory performance, he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.
Luckie, 389 F.3d at 714. If the plaintiff succeeds in proving his prima facie case, the employer must offer a legitimate, noninvidious reason for the adverse employment action. Hilt-Dyson v. City Of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). Once the employer has done so, the burden of production shifts back to the ...