United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah, United States District Judge.
EEOC claims that Driven Fence, Inc. violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1),
when it allegedly subjected an employee to a hostile work
environment based on his race and constructively discharged
him. Driven Fence now moves for summary judgment, arguing
that there is no basis for employer liability and that the
employee was not constructively discharged. For the reasons
explained below, the motion is denied.
judgment is appropriate if Driven Fence shows that there is
no genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
There is a genuine dispute over a material fact if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As the
movant, Driven Fence bears the burden of establishing that
the summary judgment standard is met, but the EEOC must
provide evidence to establish every element of its claim for
which it will bear the burden of proof at trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). I
construe the facts in the light most favorable to the EEOC
and draw reasonable inferences from them in its favor.
Laborers' Pension Fund v. W.R. Weis Co., Inc.,
879 F.3d 760, 766 (7th Cir. 2018).
Samuels began working for Driven Fence, a fencing company, in
May 2016.  ¶¶ 21-22. Samuels is black.  at 1.
Before he started, Samuels met with Joelle Masterson, the
vice president responsible for hiring.  ¶¶ 11,
13. Masterson told Samuels that if he had any problems or
questions, he should talk to Gary Montino, the warehouse
supervisor.  ¶¶ 15, 70. Masterson also gave
Samuels a copy of Driven Fence's “Rules and
Regulations, ” which included that co-workers must
treat each other with respect and that “[b]ullying
behavior toward anyone is unacceptable and will not be
tolerated.”  ¶¶ 17-18. The document
instructs that “[i]f for any reason you have a
disagreement with a co-worker it should be brought to the
managers attention to handle. If anyone treats another
disrespectfully you will be brought in to see the HR manager
and further action will be determined.” [41-1] at
164-65;  ¶ 18. Montino understood himself to be the
manager who was supposed to receive employee reports of
co-worker disagreements, and he understood that he had the
option to bring employees to Masterson when he saw fit. 
¶ 10. Montino believed that if someone reported racial
harassment, it was something he would bring to
Masterson's attention,  ¶ 11, and Masterson
expected Montino to elevate employee issues to her. 
long after starting the job, Samuels faced several racially
charged comments from his colleagues. For example, some of
his co-workers called him “Pedro Negro.” 
¶ 39. Samuels told Montino about the name-calling, but,
according to Samuels, Montino laughed and he too called
Samuels by the offensive nickname.  ¶¶ 42-43.
Montino made a handful of other derogatory statements to
Samuels- including seeing that Samuels was wounded and
remarking, “wow, you even bleed black too;”
telling Samuels about a time he told a previous black
employee standing next to expensive machinery in a photo that
it was going to look like he stole it; and saying,
“[w]ow, there's another black man in the White
House, what is this world coming to?”  ¶¶
28, 33, 35. Another co-worker, a janitor, also once shouted
“that's my n*****” at Samuels.  ¶
30. Other than telling Montino that people called him
“Pedro Negro, ” Samuels did not report the racial
comments to anyone.  ¶¶ 29, 32, 34, 36.
harassment reached a new level when Samuels entered the
warehouse to see a noose hanging from a rafter.  ¶
53. Two co-workers-Luigi and Tacho-stood on either side of
Samuels as he walked towards it to get a better look. 
¶¶ 54-55. Samuels asked, “what do they need
this for?” and Luigi responded, “if you don't
do your work right, this is what's going to
happen.”  ¶ 57. Tacho said, “put your
head in there, ” and Tacho and Luigi grabbed
Samuels's arms, trying to put his head in the noose. 
¶¶ 58-59. Samuels was able to free himself from
their grip.  ¶ 60. Samuels did not report the noose
incident to anyone at Driven Fence, though Montino had walked
past the noose at some point and laughed.  ¶ 63.
Three weeks after the noose incident, Samuels quit. 
EEOC alleges two claims. First, that Driven Fence subjected
Samuels to a hostile work environment and second, that it
constructively discharged him.  ¶ 11(a), (b). Driven
Fence argues that the EEOC has not proven that there is a
basis for employer liability or that Samuels was
constructively discharged. It does not contest any of the
other elements of the hostile work environment claim.
VII applies to employers, not individuals, so the EEOC must
prove that Driven Fence is liable for the discrimination that
Samuels suffered. See 42 U.S.C. §
2000e-2(a)(1); Nichols v. Michigan City Plant Planning
Dep't, 755 F.3d 594, 600 (7th Cir. 2014). Whether an
employer is liable for its employees' harassment depends
on who the harassers were. If the harassers were Samuels'
supervisors, then Driven Fence is strictly liable for the
harassment. Nischan v. Stratosphere Quality, LLC,
865 F.3d 922, 930 (7th Cir. 2017). If the harassers were
other, non-supervisory co-workers, then Driven Fence is
liable if it was “negligent in discovering or remedying
the harassment.” Id. (quoting Vance v.
Ball State Univ., 646 F.3d 461, 470 (7th Cir. 2011)).
The EEOC does not argue that Montino or any other alleged
harasser was a “supervisor” under Title VII, 
at 6, so the question is one of negligence.
Fence was negligent “if it knew or should have known of
the harassing conduct yet failed to act.”
Nischan, 865 F.3d at 931 (citing Faragher v.
City of Boca Raton, 524 U.S. 775, 799-800 (1998)). There
is no dispute that Driven Fence did not timely act to end the
harassment. Instead, Driven Fence argues that it couldn't
have put an end to harassment that it did not have any idea
about, since Samuels never told anyone who could have helped
him (namely, Masterson). Usually, an employee must make a
“concerted effort to inform the employer that a problem
exists, ” like “lodging a complaint with human
resources or telling high-level management about the
harassment.” Id. (quoting Hrobowski v.
Worthington Steel Co., 358 F.3d 473, 478 (7th Cir.
2004)). Samuels didn't do those things, and the EEOC
doesn't argue otherwise. But Driven Fence can still be
negligent if it had constructive notice of the harassment.
employer has constructive notice of harassment when it
“come[s] to the attention of someone who … has
under the terms of his employment, … a duty to pass on
the information to someone within the company who has the
power to do something about it.” Young v. Bayer
Corp., 123 F.3d 672, 674 (7th Cir. 1997). “Once
that person learns of the [ ] harassment, the employer is
considered to be on notice even if the victim never reported
the harassment.” Nischan, 865 F.3d at 931. The
EEOC contends that Montino is the conduit of constructive
notice here-he certainly had notice of the harassment since
he participated in much of it and, the EEOC argues, Montino
was duty-bound to pass the information on to Masterson, who
could have stopped it. Driven Fence says that Montino
didn't have a duty to report harassment.
Nischan, the plaintiff alleged that she had been
sexually harassed by a co-worker. 865 F.3d at 926. The
employer had a policy providing that “any employee with
managerial or supervisory responsibility who witnesses or is
otherwise aware of possible harassment ... must report the
conduct immediately to that employee's
supervisor/manager, the V.P. of Human Resources or Employee
Relations Manager or the Chief Operating Officer.”
Id. at 932. There was evidence that two managerial
or supervisory employees once witnessed the harassment of the