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Lord v. High Voltage Software, Inc.

United States Court of Appeals, Seventh Circuit

October 5, 2016

Ryan Lord, Plaintiff-Appellant,
High Voltage Software, Inc., Defendant-Appellee.

          Argued January 19, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 C 4469 - James B. Zagel, Judge.

          Before Easterbrook, Rovner, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Ryan 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 him.

         I. Background

         High 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.

         Lord 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."

         Following 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.

         Lord's 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.

         Lord 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.

         On July 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 this issue."

         The 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."

         After 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.[1]

         High 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 VII claims.

         II. Discussion

         We 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).

         A. Discrimination

         Title 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.

         Citing 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.

         Same-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. ...

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