April 14, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13 C 3969 -
Frederick J. Kapala, Judge.
Posner, Kanne, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Jerome Cole has worked for Northern Illinois University in
the Building Services Department since 1998. He is
African-American, and he alleges that beginning in 2009, he
experienced race discrimination, retaliation, and a hostile
work environment, including the discovery of a hangman's
noose in his newly assigned workspace. He sued the
university's board of trustees and eleven individual
university employees asserting violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, -3,
and the Equal Protection Clause of the Fourteenth Amendment.
The district court granted summary judgment to the
affirm. The hostile work environment claim presents the
closest question, but Cole has not shown a basis for employer
liability for the alleged harassment. Cole also has not
offered evidence that would allow a reasonable trier of fact
to find that he was subjected to disparate treatment based on
his race. His retaliation claim fails because he has not
offered evidence that he engaged in protected activity.
Factual and Procedural Background
Cole began working for the Building Services Department at
Northern Illinois University in 1998. In 2009, he became a
sub-foreman, a non-union position. In 2011, Cole says, he was
promoted to foreman. (Defendants dispute the point, saying
that Cole was actually an acting sub-foreman who was
improperly paid foreman-level wages, but for purposes of
summary judgment we accept Cole's version of the facts.)
At all relevant times, Cole was the only African-American
foreman or sub-foreman in the department.
Alleged Discriminatory Treatment
promotion to sub-foreman marked the start of what he terms a
"laundry list of events" amounting to unfair and
discriminatory treatment. It began with his own privileges as
a sub-foreman. As far as Cole knew, he did not have a budget
to order supplies for his assigned work areas, and unlike
other foremen, he did not have the authority to place
commodity orders. He also believed that friends and family of
supervisors in the department were making more money than
they should have. He spoke about those concerns repeatedly
with Brian Hart, the assistant superintendent for the
department, and with Steven Wilhelm, a Building Services
supervisor, and with Jesse Perez, the university's
director of administration and labor relations.
addition to these more general, ongoing complaints, Cole
points to some specific events that he argues showed race
discrimination. For example, Cole complains that on one
occasion, some of his student-athlete workers were required
to load scrap metal from areas outside of Cole's
responsibility onto salvage trucks. He was concerned that he
might be accused of wrongdoing after overhearing that some of
the profits from the scrap metal might be missing. He
notified Perez of the incident. He also spoke to Sara Cliffe,
who was the assistant director of compliance at the
university. In another incident, Cole learned of a
substantial paper towel purchase made in his name. Concerned
that someone might have been using his name without his
permission, he reported the incident to Wilhelm and Hart.
They assured him they would take care of it. (As far as we
can tell, no further trouble ever resulted from either of
several occasions after 2009, Cole was accused of
unauthorized key possession by a number of Building Services
supervisors, including Wilhelm, Rhonda Richards, Charlotte
Marx, and Tammie Pulak. Cole testified that he never actually
had the keys he was accused of possessing, though once he was
required to search for a key in the snow when he says
Richards knew it was already accounted for. Eventually, Bill
Nicklas, who was the acting superintendent of the department
until he took over as vice president of public safety and
community relations in November 2012, advised Cole not to go
to key control because Marx had threatened to call the police
on him. Cole also testified that he had been told
that Pulak instructed the university police to watch him for
no legitimate reason. He reported the surveillance to Hart.
Afterward he arrived at work one day to find that his door
had been kicked in, his office cleaned out, and his supplies
placed on a cart, all without his knowledge or approval. Cole
complained about the incident to Perez and Cliffe.
August 2012, Cole filed an ethics complaint with the
university about an array of alleged unethical practices.
According to Cliffe, who conducted the investigation, Cole
• Employees with connections to supervisors were being
paid more than the standard salaries.
• Employees were supervising their own children.
• Supplies had been ordered under Cole's name
without his knowledge or authorization.
• Cameras had been recording Cole and his crew.
• Police had called on Cole due to past complaints.
• A retired university employee still possessed and used
his university cell phone.
• There were recording devices in foremen's offices.
investigated, and she substantiated three of Cole's
complaints: supervisors had supervised their own children,
employees' friends and family received special
consideration for assignment to special projects, and the
retired employee did indeed still have his university ...