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Smith v. Rosebud Farmstand

United States District Court, N.D. Illinois, Eastern Division

September 9, 2016

ROBERT SMITH, Plaintiff,
v.
ROSEBUD FARMSTAND, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff Robert Smith sued Defendants Rosebud Farmstand, Carlos Castaneda, and Roque Mendoza, alleging claims of sexual harassment in violation of Title VII, racial discrimination in violation of 42 U.S.C. § 1981, retaliation in violation of Title VII and § 1981, and gender violence in violation of the Illinois Gender Violence Act. On December 15, 2015, a jury returned a verdict in favor of Plaintiff on all claims, awarding him a combined $2, 407, 500 in compensatory and punitive damages. Now before the Court are Defendants' motion for judgment as a matter of law and renewed motion for judgment as a matter of law regarding Plaintiff's federal discrimination claims [237, 242], and Plaintiff's motion for judgment as a matter of law and renewed motion for judgment as a matter of law regarding Plaintiff's Illinois Gender Violence Act claims [238, 243]. For the reasons set forth below, Defendants' motions [237, 238, 242, 243] are denied.

         Following the jury trial on liability, the Court held a two-day bench trial on the issue of equitable damages. Upon review of the parties' presentations at trial and their post-trial briefing, the Court awards Plaintiff $69, 761.80 in back pay and $19, 894.77 in prejudgment interest. All other requested forms of equitable relief are denied.

         Also before the Court are several motions that arose during post-trial briefing. Upon review of the parties' respective arguments, Defendants' motion to supplement the Phase II record [272] is granted, Defendants' motion to amend their answer [274] is granted, and Plaintiff's motion to strike [288] is denied.

         With these matters decided, final judgment will be entered in favor of Plaintiff. The parties have until October 7, 2016 to file any Rule 59 motions, responses are due November 4, 2016, and replies are due November 18, 2016.

         I. Background

         Defendant Rosebud Farmstand operates a grocery store on Chicago's south side, and Plaintiff Robert Smith worked as a butcher in Rosebud's meat department from 2003 to 2008.[1] In 2011, Plaintiff sued Rosebud Farmstand, alleging that Rosebud employees sexually harassed him and discriminated against him on the basis of race throughout his employment. Plaintiff also alleged that Rosebud employees retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) and the Illinois Department of Human Rights (“IDHR”), forcing him to quit his job. Plaintiff further alleged that Defendants Carlos Castaneda and Roque Mendoza committed acts of gender violence against him. Plaintiff sought compensatory and punitive damages for these alleged wrongs, as well as equitable relief in the form of back pay, overtime pay, front pay, prejudgment interest, and tax compensation. The Court bifurcated the trial such that Phase I would be a jury trial covering liability on all claims as well as compensatory and punitive damages, and Phase II would be a bench trial covering equitable relief.

         In December 2015, Plaintiff went to trial on four claims: sexual harassment in violation of Title VII against Defendant Rosebud Farmstand, racial discrimination in violation of 42 U.S.C. § 1981 against Defendant Rosebud Farmstand, retaliation in violation of Title VII and § 1981 against Defendant Rosebud Farmstand, and gender violence in violation of the Illinois Gender Violence Act (“IGVA”) against Defendants Castaneda and Mendoza. The jury returned a verdict in favor of Plaintiff on all counts, awarding a total of $2, 407, 500.00 in compensatory and punitive damages, broken down as follows:

Compensatory

Punitive

Sexual Harassment

$250, 000.00

$500, 000.00

Racial Discrimination

$250, 000.00

$500, 000.00

Retaliation

$250, 000.00

$500, 000.00

IGVA Claim - Castaneda

$50, 000.00

$100, 000.00

IGVA Claim - Mendoza

$2, 500.00

$5, 000.00

Subtotals

$802, 500.00

$1, 605, 000.00

Grand Total

$2, 407, 500.00[2]

         At the close of Plaintiff's case in chief, Defendants filed motions for judgment as a matter of law on all claims. [237, 238.] Defendants renewed those motions before the case was submitted to the jury. [242, 243.] The Court deferred setting a briefing schedule on Defendants' motions until the conclusion of Phase II.

         In April 2016, the Court held a two-day bench trial on Plaintiff's claim for equitable relief and Defendants' affirmative defense that Plaintiff failed to mitigate his damages. Afterward, the Court set a briefing schedule that covered all post-trial briefing, including Defendants' motions for judgment as a matter of law and the parties' Phase II proposed findings of fact and conclusions of law [see 270]. All motions are now fully briefed.

         II. Judgment as a Matter of Law

         On a motion for judgment as a matter of law under Fed.R.Civ.P. 50, a court must determine whether the evidence presented at trial, when viewed in the light most favorable to the non-moving party, is sufficient to support the verdict. Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 924 (7th Cir. 2000); see also Hall v. Gary Cmty. Sch. Corp., 298 F.3d 672, 675 (7th Cir. 2002). A jury verdict is not to be set aside if, viewing the evidence presented at trial in the light most favorable to the prevailing party, there is any reasonable basis to support the verdict. Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004) (citation omitted). In other words, the test is whether “no rational juror could have found for the prevailing party.” Turner v. Miller, 301 F.3d 599, 602 (7th Cir. 2002); see also Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 630 (7th Cir. 1996) (the court is limited to assessing whether no rational jury could have found for the plaintiff).

         A. Plaintiff's Motion to Strike

         Before addressing Defendants' Rule 50 motions, the Court notes that Plaintiff has moved to strike Defendants' reply briefs in support of their motions, arguing that Defendants improperly included testimonial excerpts in those briefs that were not included in Defendants' opening briefs. [See 288.] Alternatively, Plaintiff requests that the Court strike from Defendants' reply briefs all references to evidence that was not including in Defendants' opening briefs, or allow Plaintiff leave to file a surreply. Plaintiff's motion [288] is denied.

         Parties are prohibited from raising arguments for the first time in a reply brief, see Richardson v. United States, 379 F.3d 485, 487 n.1 (7th Cir. 2004), and to the extent that Defendants have done so, the Court will ignore those arguments. But Plaintiff's objection relates to Defendants' inclusion of new transcript citations, not new arguments. And as Defendants rightly note, the trial transcript was not available when Defendants filed their opening briefs, which was during the Phase I trial in December 2015. The trial transcript became available to both parties on May 20, 2016-more than a month before Plaintiff's responses to Defendants' motions for judgment as a matter of law were due. Plaintiff did not obtain copies of the trial transcript or include citations to the trial transcript in his response. By contrast, Defendants did obtain copies of the trial transcripts and, as expected, did include citations to the trial transcripts in their reply briefs, buttressing the arguments that they raised in their opening briefs. Not only are Defendants' actions appropriate, they are expected. But regardless of whether either party cited specific excerpts from the trial transcript, the Court is entitled to refer to that transcript in ruling on the parties' post-trial motions, meaning that the entire transcript is fair game. See Cygnar v. City of Chicago, 865 F.2d 827, 834 & n.6 (7th Cir. 1989) (district court's decision to rule on post-trial motions “without the benefit of a trial transcript” was “surprising[]”); LaFollette v. Savage, 63 F.3d 540, 545 (7th Cir. 1995) (requiring a full trial transcript in order to properly rule on the merits of a motion for judgment as a matter of law). And upon review of the hundreds of pages in the parties' post-trial briefing, the Court concludes that a surreply from Plaintiff is both unnecessary and unwarranted. Thus, Plaintiff's motion [288] is denied, and the Court will rule on Defendants' motions for judgment as a matter of law based on the parties' current submissions.

         B. Federal Discrimination Claims

         1. Sexual Harassment in Violation of Title VII

         Plaintiff alleged that Defendant Rosebud violated Title VII by subjecting him to a hostile work environment based on sexual harassment. Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination in employment: “It shall be an unlawful employment practice for an employer * * * to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The purpose of this provision as it relates to discrimination on the basis of sex is to prevent “‘disparate treatment of men and women in employment, '” regardless of its form. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). Therefore, whenever “‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.'” Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).

         To establish a prima facie case of hostile work environment sexual harassment, an employee must establish that (1) he was subjected to unwelcome harassment; (2) the harassment was based on his sex; (3) the harassment was sufficiently severe or pervasive so as to alter the condition of his employment and create a hostile or abusive atmosphere; and (4) there is a basis for employer liability. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007) (citing Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007)). The third prong of this test-the severity or pervasiveness of the harassment-has both an objective and a subjective component. Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008) (citing Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463 (7th Cir. 2002)). The plaintiff may satisfy the subjective prong by presenting evidence that he in fact perceived his workplace as hostile or abusive. Hilt-Dyson, 282 F.3d at 463. In determining whether a workplace is objectively hostile, the court considers the totality of the circumstances, including the frequency and severity of the discriminatory conduct; “‘whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1145 (7th Cir. 1997) (“Title VII is not directed against unpleasantness per se but only * * * against discrimination in the conditions of employment.” (quoting Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994))).

         Defendants argue that Plaintiff failed to present sufficient evidence to support each of these four elements. The Court disagrees.

         First, Plaintiff presented sufficient evidence to show that he was subjected to unwelcome harassment. Plaintiff testified for two days regarding countless incidences in which his coworkers touched, grabbed, and fondled his private parts during work hours. He testified about how these touches were unwelcome, about how they affected him physically and emotionally, and about how his complaints and protestations regarding this harassment fell on deaf ears. The evidence was vast. Despite Defendants' attempts to impeach the credibility of Plaintiff's testimony and to minimize the alleged severity of this constant touching by categorizing it as “horseplay or goofing around, ” Defendants' argument that no reasonable jury could conclude that Plaintiff was subjected to unwelcome harassment is a nonstarter.

         Second, Plaintiff presented sufficient evidence to show that the harassment was based on his sex. There was sufficient evidence for a jury to conclude that the touching in question occurred because of Plaintiff's sex (e.g., female employees were not subject to this sort of touching), and that the touching itself was sexual in nature, as it involved the unwanted touching of Plaintiff's intimate body parts. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (“The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” (citation omitted)); id. (“[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”); Hamm v. Weyauwega Milk Prods. Inc., 332 F.3d 1058, 1062 (7th Cir. 2003) (harassment not based on sex where the plaintiff's “complaints about the actions of his coworkers inescapably relate[d] to either [his] coworkers' disapproval of his work performance or their perceptions of [his] sexual orientation, ” not his sex generally); Gabrielle M. v. Park Forest-Chicago Heights, IL Sch. Dist. 163, 315 F.3d 817, 827 (7th Cir. 2003) (concluding that “the record readily supports the inference that [defendant's] acts were based on sex” because they involved “touching [plaintiff's] genitals”).

         Third, there was sufficient evidence to allow the jury to conclude that the harassment was sufficiently severe or pervasive so as to alter the condition of Plaintiff's employment and create a hostile or abusive atmosphere. Plaintiff testified about the physical and emotional impact of the harassment, as well as the impact of his failed attempts to address the workplace harassment, which ultimately led to his constructive termination. Defendants' argument that “[a]lthough Plaintiff claimed his environment became ‘intolerable' leading him to quit, there was no evidence to support that claim” is untenable. [237, at 4.] Again, Plaintiff testified at length about daily instances of harassment that continued for years despite his complaints. This evidence, when viewed in the light most favorable to Plaintiff, is sufficient to support the jury's verdict.

         Fourth, Plaintiff presented sufficient evidence to establish a basis for employer liability. Under Title VII, different standards of employer liability apply depending on whether the alleged harasser is the victim's supervisor or a coworker. An employer is strictly liable for harassment by a supervisor. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008) (citing Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006)). A “supervisor” for Title VII purposes is “not simply a person who possesses authority to oversee the plaintiff's job performance, but a person with the power to directly affect the terms and conditions of the plaintiff's employment.” Id. (citation omitted). This power includes generally “the authority to hire, fire, promote, demote, discipline or transfer * * *.” Id. (citing Rhodes v. Illinois Dep't. of Transp., 359 F.3d 498, 506 (7th Cir. 2004)). An employer is liable for harassment by a coworker only if it was negligent in discovering or remedying the harassment, that is, if the employer “knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004); Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004) (“Put differently, the employer can avoid liability for its employees' harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.”).

         Regarding supervisor harassment, the evidence presented at trial establishes that Defendant Castaneda was Plaintiff's supervisor (e.g., he oversaw Plaintiff's performance, had the authority to hire and fire, etc.), and Plaintiff testified about an incident in “2005 or 2006” where Defendant Castaneda “grabbed [his] ass.” [Tr. Dec. 9, 2015, at 513-15.] A reasonable jury could conclude that this was an act of supervisor harassment for which Defendant Rosebud is strictly liable. Arguably, however, this one incident might not have risen to the “severe or pervasive” standard required of actionable harassment. See Mercer v. Cook County, Ill., 527 F.App'x 515, 521-22 (7th Cir. 2013) (citing cases where single incidents were not considered severe or pervasive); Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005) (recognizing that, in some instances, “a single incident might qualify for a hostile environment claim”). But the Court need not resolve that issue here because Plaintiff presented sufficient evidence to show that Rosebud knew of coworker harassment but failed to address it. Specifically, Plaintiff testified that his coworkers openly harassed him in public areas of the market from 2003 to 2008, and that he repeatedly complained to management about this harassment but Defendant Rosebud did nothing in response. See Wilson v. Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999) (employer had constructive knowledge of harassment that occurred in common areas); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (explaining that “the entire time period of the hostile environment may be considered by a court for the purposes of determining liability, ” including acts that occurred outside of the statutory filing period). This is sufficient to allow a jury to conclude that Rosebud knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice.

         2. Retaliation in Violation of Title VII

         Under the anti-retaliation provision of Title VII, it is unlawful for an employer to discriminate against an employee for opposing an unlawful employment practice or for making a charge, testifying, assisting, or participating in a Title VII investigation, proceeding, or hearing. Brown v. Ill. Dep't of Nat. Resources, 499 F.3d 675, 684 (7th Cir. 2007) (quoting 42 U.S.C. § 2000e-3(a)). To prove his retaliation claim, Plaintiff must present evidence that, when considered as a whole, would allow a reasonable factfinder to conclude that his filing of a charge of discrimination caused the adverse employment action (here, constructive discharge). Ortiz v. Werner Enters., ___ F.3d ___, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016).

         Defendants argue that Plaintiff failed to demonstrate that he suffered continued harassment that led him to quit after he filed his charge of discrimination with the EEOC, or that there was a causal connection between his filing of an EEOC charge and his decision to quit. The Court disagrees.

         Plaintiff filed his charge of discrimination with the EEOC on January 7, 2008, and he quit his job six months later, in June 2008. At trial, Plaintiff testified that during this six-month period Rosebud employees stopped harassing him sexually, but began harassing him in new and different ways. For example, Plaintiff testified that his coworkers told him that he was no longer welcome at Rosebud; they would slam knives on cutting boards when Plaintiff was nearby; they broke a portable television that Plaintiff brought to work; they scratched his car, cracked his windshield, and slashed his tires; and they walked past him carrying trays of meat that had knives sticking out of them such that Plaintiff had to move out of the way to avoid getting cut. [Tr. Dec. 10, 2015, at 759-81.] Plaintiff then testified that these actions made him feel “unwelcome, ” “disrespected, ” “nervous, ” and “scared, ” leading him to quit his job. [Id. at 782- 83.] Plaintiff's testimony is sufficient to allow a reasonable jury to conclude that Plaintiff suffered an adverse employment action because he filed his EEOC charge. Defendants' argument that Plaintiff's allegations are uncorroborated and “too vague and unspecific” is unavailing-a reasonable jury could credit Plaintiff's testimony absent any corroboration, and Plaintiff's testimony was neither vague nor unspecific, certainly not to the degree that would justify judgment as a matter of law in Defendants' favor.

         3. Racial Discrimination in Violation of § 1981

         The substantive standards and methods of proof that apply to claims of racial discrimination and retaliation under Title VII also apply to claims under § 1981. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007), aff'd, 553 U.S. 442 (2008). Thus, to succeed on his § 1981 claim, Plaintiff had to satisfy four elements: “(1) the work environment must have been both subjectively and objectively offensive; (2) race must have been the cause of the harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis for employer liability.” Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011). Claims brought under § 1981 do not require exhaustion of administrative remedies, Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir. 2007), and are subject to a four-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004); Dandy v. United Parcel Service, Inc., 388 F.3d 263, 269 (7th Cir. 2004).

         Plaintiff testified at trial that he was subjected to racial harassment throughout his employment at Rosebud Farmstand (i.e., from 2003 to 2008). Plaintiff testified that his coworkers frequently referred to him “nigger” and “monkey, ” and told him to “go back to Africa.” [Tr. Dec. 9, 2015, at 676-86.] He estimated that his coworkers made racial remarks 20 times in 2004, 30 times in 2005, and over 70 times in 2006. [Tr. Dec. 9, 2015, at 685.] Plaintiff said that during 2008, he was subjected to racial harassment approximately five times per week, including comments from coworkers telling him to “go back to Africa, ” calling him a “monkey, ” a “nigger, ” and a “slave.” [Tr. Dec. 10, 2015, at 754-58.] He testified that Defendant Castaneda did not make racial remarks in 2008, although in 2005 or 2006 Defendant Castaneda said something to Plaintiff “about how black guys have big dicks and big asses.” [Tr. Dec. 9, 2015, at 515.]

         Defendants' primary argument is that the bulk of the alleged racial harassment occurred outside of the relevant “evidentiary period, ” and that the only evidence of racial harassment within the evidentiary period is “a few isolated, stray remarks, ” which is insufficient to support a hostile work environment claim. [See 237, at 7.] Plaintiff filed his complaint on December 23, 2011, meaning that the limitations period for Plaintiff's § 1981 claim goes back to December 23, 2007, approximately six months before Plaintiff quit Rosebud. Defendants argue that this six-month period is the only relevant “evidentiary period” for assessing Plaintiff's § 1981 claim, and that all acts of racial harassment that pre-date December 23, 2007 are irrelevant. But Defendants ignore the fact that Plaintiff's § 1981 claim, like his Title VII claim, is based on a hostile work environment theory of liability. And both the Supreme Court and the Seventh Circuit have explained that the so-called “evidentiary period” relevant to such claims extends to include pre-limitations conduct:

A hostile work environment claim is composed of a series of separate acts that collectively constitute one “unlawful employment practice.” 42 U.S.C. § 2000e-5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002); see also Pruitt v. City of Chicago, Ill., 472 F.3d 925, 927 (7th Cir. 2006) (explaining that the inclusion of pre-limitations conduct for hostile work environment claims applies equally to Title VII and § 1981 claims); Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir. 2004) (explaining that the continuing violation doctrine described in Morgan “applies to Title VII as well as § 1981 claims”). Thus, all of Defendants' acts of racial discrimination, including those pre-dating the limitations period, are relevant for determining Defendants' liability for creating a hostile work environment. Defendants' argument that there was insufficient evidence (or no evidence [287, at 10]) to substantiate Plaintiff's § 1981 claim is unpersuasive.

         Defendants also argue-generally, without tying the argument to any specific element of a § 1981 claim-that Plaintiff's evidence of racial harassment should be discredited because, for the most part, Plaintiff's witnesses did not corroborate his testimony. [237, at 7; 287, at 10-11.] This argument is unavailing for two reasons. First, while Plaintiff testified about repeated acts of sexual harassment that occurred openly in public areas of the market, Plaintiff said that his coworkers would make racial remarks as they were walking past Plaintiff, that “[t]hey wouldn't say [them] loud, ” and that they would say the comments “so [Plaintiff] could hear [them].” [Tr. Dec. 10, 2015, at 753-58.] Based on this testimony, a lack of corroborating evidence might have come as no surprise to the jury (i.e., perhaps other employees did not overhear these racial comments). Second, even if the witnesses flatly contradicted Plaintiff's testimony, it is still the province of the jury to assess witness credibility, and Plaintiff's testimony, if credited, provided a sufficient evidentiary basis to find in his favor.

         Defendants also argue that Plaintiff failed to present any basis for employer liability. Again, different standards of employer liability apply depending on whether the alleged harasser is the victim's supervisor or a coworker. An employer is strictly liable for harassment by a supervisor, and an employer is liable for harassment by a coworker only if it was negligent in discovering or remedying the harassment, that is, if the employer “knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice.” Wyninger, 361 F.3d at 976.

         Plaintiff's only evidence of supervisor harassment is that in 2005 or 2006, Defendant Castaneda said something to Plaintiff “about how black guys have big dicks and big asses.” [Tr. Dec. 9, 2015, at 515.] While this is only a single incident, the Seventh Circuit has said that “in the case of racial and ethnic slurs, some words are so outrageous that a single incident might qualify for a hostile environment claim.” Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005) (recognizing that, in some instances, “a single incident might qualify for a hostile environment claim”). But again, the Court need not decide whether Defendant Castaneda's comment qualifies as a severe or pervasive instance of racial harassment because Plaintiff can establish that Rosebud knew of coworker harassment but failed to address it. Specifically, Plaintiff testified that his coworkers racially harassed him 2003 to 2008, and that he repeatedly complained to management about this harassment but Defendant Rosebud did nothing in response. This is sufficient to allow a jury to conclude that Rosebud knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice.

         Defendants also argue that “[t]here is insufficient evidence to show [that Plaintiff] suffered an adverse action as a result of [the] alleged racial harassment.” [287, at 10.] But this is not an element of a § 1981 hostile work environment claim, and thus Defendants' argument is misplaced. The Court addresses this “adverse action” argument in reviewing Plaintiff's retaliation claim.

         4. Retaliation in Violation of § 1981

         The retaliation standard for § 1981 claims is identical to standard for Title VII claims, which, as explained above, requires Plaintiff to present evidence that, when considered as a whole, would allow a reasonable factfinder to conclude that his filing of a charge of discrimination caused his constructive discharge. Ortiz, 2016 WL 4411434, at *4.

         Similar to his allegations for his Title VII retaliation claim, Plaintiff alleges that after he filed his charge of discrimination with the EEOC on January 7, 2008, Defendant Rosebud retaliated against him in a variety of ways, ultimately causing his resignation six months later.[3]

         Defendants argue that “Plaintiff failed to offer any evidence beyond his own testimony to establish he allegedly was subjected to racial harassment after January 2008 that was worse, different or retaliatory alleged [sic] in any way.” [237, at 8.] But as mentioned throughout this opinion, the jury, as the arbiter of witness credibility, was entitled to credit Plaintiff's testimony in assessing Defendants' liability, regardless of whether Plaintiff offered any corroborating testimony from other witnesses.

         Defendants also argue that Plaintiff failed to show any material change in his work environment because he filed his charge of discrimination. It is unclear whether Defendants are arguing that Plaintiff failed to establish that he was subject to an adverse action, or whether the adverse action was causally linked to the filing of the charge of discrimination. Regardless, both arguments are unconvincing. As discussed above, Plaintiff testified that his coworkers' threatening and intimidating actions following his filing of his charge of discrimination made him feel “unwelcome, ” “disrespected, ” “nervous, ” and “scared, ” causing him to quit his job (i.e., his constructive discharge). [Tr. Dec. 10, 2015, at 782-83.] Plaintiff's testimony is sufficient to allow a reasonable jury to conclude that Plaintiff suffered an adverse employment action because he filed his EEOC charge, and thus sufficient to sustain a jury verdict for retaliation in violation of § 1981.

         C. Illinois Gender Violence Act Claims

         The Illinois Gender Violence Act says that “[a]ny person who has been subjected to gender-related violence as defined in Section 5 may bring a civil action for damages, injunctive relief, or other appropriate relief against a person or persons perpetrating that gender-related violence.” ...


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