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Caterpillar’s response to coworkers’ comments, graffiti defeats employee’s HWE claim

By Kathleen Kapusta, J.D.

An African-American employee who alleged that his coworkers made offensive comments about his race and his perceived sexual orientation, including calling him a “black faggot ass,” and scrawling on a bathroom wall that he was a “black ni**er” who “should be killed,” and who claimed that he was suspended in retaliation for complaining, was unable to convince the Seventh Circuit to revive his hostile work environment and retaliation claims. Affirming the district court’s grant of summary judgment to Caterpillar, the appeals court panel found that the company reasonably responded to his harassment complaints and there was no evidence to suggest that it suspended him because of those complaints (Muhammad v Caterpillar, Inc, September 9, 2014, Rovner, I).

Oral comments. The offensive oral comments came from three different coworkers over the course of several months and included one coworker calling the employee a “black ni**er,” another telling him he didn’t like the employee’s “black faggot ass,” and a third stating that her grandchildren were black and she did not like them or black people generally. After each comment, the employee complained to either HR or his supervisor. While two of the coworkers said nothing further, the third made one additional comment telling him “his black butt should have stayed fired.” The employee never complained about this statement.

Graffiti. The employee was also subjected to offensive graffiti scrawled on the bathroom walls. In addition to the comment that he should be killed, there were comments such as he “is a fag, a know it all fag,” he “sucks Kippy dick,” and he has AIDS. After he complained, his supervisor had the bathroom repainted. When the graffiti reappeared three days later, the employee spoke first with his supervisor and then directly with the shift supervisor.

His supervisor once again had the bathroom repainted. He also asked the employee to follow the chain of command in submitting complaints. When the graffiti reappeared yet again, the supervisor warned that anyone caught defacing the walls would be immediately fired.

Suspension. Approximately six weeks later, the employee was suspended for insubordination after his supervisor confronted him when he left his workstation during non-break time to use the restroom and then checked the bid board for postings. He subsequently sued, alleging that he was harassed about his race and perceived sexual orientation and suspended in retaliation for complaining about the graffiti to the shift supervisor. The district court granted summary judgment for Caterpillar on both claims.

Comments. On appeal, the employee argued that the comments about his sexual orientation were based on his sex, his coworkers would not have directed such comments toward a female employee notwithstanding her sexual preference, and he was harassed because he was a male who did not, in the minds of his harassers, act like a male. Finding these arguments unpersuasive, the appeals court found his assertion that his coworkers would not have harassed a female for her sexual preference to be speculative.

Employer response. In addition, the court stated, a “more fundamental obstacle” blocked the employee’s claim that Caterpillar was liable for sexual and racial harassment: the company reasonably responded to his complaints. After he reported the offensive comments and Caterpillar responded, only one of the three coworkers made another similar remark. Observing that the employee never reported that incident, the court pointed out that an employer is not liable for coworker sexual harassment when a method exists to report the harassment and the employee fails to utilize it.

Further, the court noted, Caterpillar promptly responded to each of the employee’s complaints about the graffiti. Although the employee argued that the company should have done more to identify the responsible parties and punish them, the court disagreed. “Given that Caterpillar’s prompt response halted the harassment,” the court found that the “company is not liable under Title VII for not doing more to hunt down the guilty coworkers for punishment.”

Retaliation. Turning to the employee’s retaliation claim, the court first noted that his sexual harassment complaint was based on statements regarding his sexual orientation, which is not a prohibited conduct under Title VII. Observing that he could not maintain a retaliation claim based on a complaint of conduct that is not covered under Title VII, the court found that summary judgment was proper on that basis alone.

However, because the graffiti contained racial epithets as well, the district court considered whether the claim could survive on that basis. Because the employee eschewed “any reliance on the indirect method of establishing retaliation,” the appeals court looked to whether he could survive summary judgment under the direct method of proof. Here, the court pointed out, it was undisputed that the employee’s supervisor approached him with a concern about his work performance and that some conflict arose during the ensuring discussion, after which the supervisor decided to suspend him.

While the employee contended that after he complained about the graffiti to the shift supervisor, his supervisor “mentioned” to him that he should follow the proper chain of command, he did not allege that his supervisor was angry and could not even remember precisely when the conversation occurred. Noting that there was virtually no evidence, other than possible temporal proximity, that the conversation played a role in the suspension, the court observed that it has repeatedly held that mere temporal proximity is rarely sufficient. Thus, because there was no evidence to show that the employee’s communication with the shift leader led to his suspension, the court affirmed the district court’s decision.