January 19, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 C 4469 - James
B. Zagel, Judge.
Easterbrook, Rovner, and Sykes, Circuit Judges.
Lord claims that he was sexually harassed by male coworkers
at High Voltage Software, Inc., and that High Voltage fired
him for complaining about it. High Voltage responds that the
conduct Lord complained about wasn't sexual harassment
and that it fired Lord for other reasons: failing to properly
report his concerns, excessive preoccupation with his
coworkers' performance, and insubordination. The district
court concluded that Lord's claims under Title VII for
hostile work environment and retaliation failed as a matter
of law. The judge accordingly entered summary judgment for
High Voltage. We affirm. Lord has not shown that he was
harassed because of his sex, nor has he called into doubt the
sincerity of his employer's justifications for firing
Voltage develops software for video games. In September 2006
the company hired Lord as an associate producer and initially
assigned him to its Omni team, a working group named after a
game then under development. Lord claims that in January 2007
his male team members began teasing him about his supposed
interest in a female audio engineer. His coworkers would
comment that Lord had "the audio bug" or ask if he
had "[taken] care of the audio bug" whenever the
female engineer was in the vicinity. According to Lord, the
phrase "audio bug" had sexual connotations that
referred to his rumored interest in his female coworker.
first formally complained about the audio-bug joke in a June
5, 2007 email to Human Resources Director Maggie Bohlen.
Bohlen initiated an investigation and then met with Lord ten
days later to discuss the results. She explained that the
audio-bug joke did not amount to sexual harassment but
directed Lord to report any further incidents of harassment
to human resources "immediately."
Lord's meeting with Bohlen, the company's president,
John Kopecky, reassigned Lord to a different development team
to avoid further "team dynamic issues." Lord also
met with Kopecky and Executive Producer Chad Kent for a
regular performance review. During that meeting, Kopecky and
Kent addressed Lord's recent complaints about harassment.
They explained that High Voltage is a creative workplace
where "humor is a common method of communication."
But they also said that if Lord felt someone's comments
crossed the line, he should ask that person to stop and
notify Kent immediately if the comments persisted.
new working group was known as the Responder team, and Lord
began sharing an office with Nick Reimer, another associate
producer and fellow Responder team member. Lord claims that
between July 18 and July 27, Reimer initiated unwanted
physical contact on four separate occasions. First, on July
18 Reimer poked Lord in the buttocks as Lord was bending over
to put coins into a vending machine. Next, on July 23 while
Lord was talking with another coworker, Reimer slapped
Lord's buttocks as he walked past. Two days later Reimer
again slapped Lord's buttocks while Lord was purchasing
something from the vending machine. Finally, on July 27
Reimer grabbed Lord between his legs while Lord was writing
on a white board.
did not report any of these incidents when they occurred,
though he did tell Reimer to stop. Lord's first formal
complaint about Reimer came on July 30, 2007, when he went to
the office on his day off to voice his concerns to Bohlen.
Before talking to Bohlen, however, Lord sought out two
coworkers who had witnessed Reimer's conduct and recorded
statements from each. Lord also encountered Kent, the
Executive Producer, but said nothing about Reimer's
behavior; he later explained that he was worried about losing
his job for being overly concerned about Reimer. Lord
reported Reimer's conduct to Bohlen, who forwarded the
complaints to Kopecky.
31 Kent issued an unrelated disciplinary "write-up"
to Reimer and Lord stemming from a DVD malfunction that
occurred during a presentation Kent was giving. Kent thought
that both Reimer and Lord were responsible for the technical
malfunction, but he was mistaken about Lord's degree of
involvement. Lord immediately responded with a heated email
to Kent accusing the company of retaliating against him for
reporting sexual harassment by a coworker; he also said he
was "very close to filing a complaint with the Illinois
Department of Human Rights and the Equal Employment
Opportunity Commission." After discussing the matter
with Lord and investigating the DVD mishap further, Kent
promptly withdrew the write-up and apologized for
"misunderstanding [Lord's] level of involvement with
next day, August 1, High Voltage fired both Reimer and Lord.
According to personnel records documenting the reasons for
the terminations, Reimer was fired for harassing Lord, and
Lord was fired for four reasons: (1) failing to immediately
report incidents of harassment to Bohlen as instructed; (2)
failing to report incidents of harassment to Kent, again as
specifically instructed; (3) obsessively "tracking"
the "performance, timeliness, and conduct" of his
coworkers; and (4) insubordination. The insubordination
charge had to do with Lord's ill-tempered response to
Kent's mistaken disciplinary write-up over the DVD
malfunction. Bohlen thought it was "inappropriate for
[Lord] to threaten the company instead of just correcting
the mis-information on the write-up."
losing his job, Lord filed an administrative complaint with
the EEOC and received notice of his right to sue. He then
brought this action against High Voltage alleging claims for
discrimination and retaliation in violation of Title VII, 42
U.S.C. § 2000e-2. His discrimination claim was premised
on allegations that the company created a hostile work
environment. Lord also alleged disability discrimination
under the Americans with Disabilities Act, 42 U.S.C. §
12112, and several state-law claims.
Voltage moved for summary judgment on all claims. The judge
granted the motion, concluding that Lord lacked sufficient
evidence to permit any of his claims to go forward. Lord
appeals, challenging only the decision on the Title
review the district court's order granting summary
judgment de novo, construing the evidence and drawing all
reasonable inferences in Lord's favor. Smith v. Chi.
Transit Auth., 806 F.3d 900, 904 (7th Cir. 2015).
Summary judgment is appropriate if the record presents no
genuine issues of material fact and High Voltage is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(a).
VII prohibits discrimination "against
any individual with respect to his 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). This
prohibition encompasses the "creation of a hostile work
environment" that is severe or pervasive enough to
affect the terms and conditions of employment. Orton-Bell
v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014) (quoting
Vance v. Ball State Univ., 133 S.Ct. 2434, 2441
(2013)). A hostile-work-environment claim requires proof of
four elements: (1) the plaintiff's workplace was both
subjectively and objectively offensive; (2) the
plaintiff's sex was the cause of the harassment; (3) the
harassment was severe or pervasive; and (4) there is a basis
for employer liability. Id.
the audio-bug joke and Reimer's unwanted physical
contact, Lord maintains that the conduct of his male
coworkers created a hostile work environment. That claim is a
nonstarter because Lord has not established that his
coworkers harassed him because of his sex.
harassment claims are cognizable under Title VII provided
that "the conduct at issue was not merely tinged with
offensive sexual connotations, but actually constituted
'discrimination] ... because of ...
sex.'" Oncale v. Sundowner Offshore Servs.,
Inc.,523 U.S. 75, 81 (1998) (quoting 42 U.S.C. §
2000e-2(a)(1)) (alteration in original). Of course, that
requirement applies to all claims of
employment-based sexual harassment, whether same sex
or opposite sex. Id. at 80 ("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.") (quotation marks omitted). But in
opposite-sex harassment cases involving "explicit or
implicit proposals of sexual activity, " the inference
of discrimination is easier to draw because "it is
reasonable to assume those proposals would not have been made
to someone of the same sex." Id. The same does
not hold true for same-sex harassment cases absent some
evidence that the harasser was homosexual. ...