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Cole v. Board of Trustees of Northern Illinois University

United States Court of Appeals, Seventh Circuit

September 27, 2016

Jerome Cole, Plaintiff-Appellant,
Board of Trustees of Northern Illinois University, et al., Defendants-Appellees.

          Argued April 14, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 3969 - Frederick J. Kapala, Judge.

          Before Posner, Kanne, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Plaintiff 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 defendants.

         We 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.

         I. Factual and Procedural Background

         Plaintiff 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.

         A. Alleged Discriminatory Treatment

         Cole's 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.

         In 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 these incidents.)

         On 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.[1] 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.[2] 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.

         In 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 complained that:

• 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.

         Cliffe 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 ...

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