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Equal Employment Opportunity Commission v. Driven Fence, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 2, 2019

Equal Employment Opportunity Commission, Plaintiff,
v.
Driven Fence, Inc., Defendant.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah, United States District Judge.

         The 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.

         I. Legal Standards

         Summary 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).

         II. Facts

         Arri Samuels began working for Driven Fence, a fencing company, in May 2016. [43] ¶¶ 21-22.[1] Samuels is black. [42] at 1. Before he started, Samuels met with Joelle Masterson, the vice president responsible for hiring. [43] ¶¶ 11, 13. Masterson told Samuels that if he had any problems or questions, he should talk to Gary Montino, the warehouse supervisor. [43] ¶¶ 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.” [43] ¶¶ 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; [43] ¶ 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. [53] ¶ 10. Montino believed that if someone reported racial harassment, it was something he would bring to Masterson's attention, [53] ¶ 11, and Masterson expected Montino to elevate employee issues to her. [43] ¶ 74.[2]

         Not 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.” [43] ¶ 39. Samuels told Montino about the name-calling, but, according to Samuels, Montino laughed and he too called Samuels by the offensive nickname. [43] ¶¶ 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?” [43] ¶¶ 28, 33, 35. Another co-worker, a janitor, also once shouted “that's my n*****” at Samuels. [43] ¶ 30. Other than telling Montino that people called him “Pedro Negro, ” Samuels did not report the racial comments to anyone. [43] ¶¶ 29, 32, 34, 36.

         The harassment reached a new level when Samuels entered the warehouse to see a noose hanging from a rafter. [43] ¶ 53. Two co-workers-Luigi and Tacho-stood on either side of Samuels as he walked towards it to get a better look. [43] ¶¶ 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.” [43] ¶ 57. Tacho said, “put your head in there, ” and Tacho and Luigi grabbed Samuels's arms, trying to put his head in the noose. [43] ¶¶ 58-59. Samuels was able to free himself from their grip. [43] ¶ 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. [43] ¶ 63. Three weeks after the noose incident, Samuels quit. [43] ¶ 66.

         III. Analysis

         The EEOC alleges two claims. First, that Driven Fence subjected Samuels to a hostile work environment and second, that it constructively discharged him. [1] ¶ 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.

         Title 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, [42] at 6, so the question is one of negligence.

         Driven 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. Id.

         An 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.

         In 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 ...


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