119 F.3d 563 (7th Cir. 1997), 94-3699, Doe by Doe v. City of Belleville, Ill.

Docket Nº:94-3699.
Citation:119 F.3d 563
Party Name:J. DOE and H. Doe, by their parents and next friends, David and Mary DOE, Plaintiffs-Appellants, v. CITY OF BELLEVILLE, ILLINOIS, Defendant-Appellee.
Case Date:July 17, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 563

119 F.3d 563 (7th Cir. 1997)

J. DOE and H. Doe, by their parents and next friends, David

and Mary DOE, Plaintiffs-Appellants,

v.

CITY OF BELLEVILLE, ILLINOIS, Defendant-Appellee.

No. 94-3699.

United States Court of Appeals, Seventh Circuit.

July 17, 1997

Argued April 15, 1995.

Reargued Feb. 23, 1996.

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Ferne P. Wolf (argued), Carr, Korein, Tillery, Kunin, Montroy & Glass, East St. Louis, IL, for Plaintiffs-Appellants.

Dennis E. Rose, Donovan, Rose, Nester & Szewczyk, Belleville, IL, Douglas Heise (argued), Wirth & Heise, Belleville, IL, for Defendant-Appellee.

Before RIPPLE, MANION and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Twin brothers J. and H. Doe 1 took summer jobs with the City of Belleville, Illinois. They quit after two months, fed up with the unrelenting harassment to which they had been subjected by their male co-workers. By their parents, they subsequently filed suit against the city, contending that they were sexually harassed in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Equal Protection Clause of the Fourteenth Amendment, and that they were constructively discharged in retaliation for protesting the harassment. The district court granted summary judgment in favor of Belleville, reasoning principally that because both the Does and their harassers were heterosexual males, the plaintiffs could not show that they were harassed "because of" their sex. We conclude that sexual harassment of a man by other men is actionable under Title VII and that the evidence in this case, construed in the Does' favor, permits the inference that they were harassed because of their sex. The fact that the Does' harassers are not gay--a fact that some courts view as dispositive--is, in our view, immaterial. Consequently, although we affirm the entry of summary judgment in Belleville's favor on the plaintiffs' retaliation claim, we reverse the grant of summary judgment on their Title VII and Fourteenth Amendment claims of sex discrimination and remand for a trial on those claims.

I.

For purposes of summary judgment, the city has not disputed the plaintiffs' account of what occurred during their employment. We are, in any event, bound to credit the plaintiffs' version of events at this juncture. Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 656 (7th Cir.1991) (en banc). We therefore accept the following facts as true.

J. and H. Doe were sixteen years old when they were hired by the City of Belleville in 1992 to cut weeds and grass in the municipal cemetery. From the first, both young men were subjected to a relentless campaign of harassment by their male coworkers. For the ostensible purpose of differentiating between the brothers, the other men (all of whom were significantly older than the plaintiffs) nicknamed J., who apparently was overweight, the "fat boy" and dubbed H., who wore an earring, the "fag" or the "queer."

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Day in and day out, both brothers were subjected to such ridicule, but it was H. who was the main target of the daily verbal abuse, most of which was served up by co-worker Jeff Dawe. Dawe, a former Marine of imposing stature, constantly referred to H. as "queer" and "fag" and urged H. to "go back to San Francisco with the rest of the queers." Dawe also repeatedly inquired of H., "Are you a boy or a girl?" Dawe soon took to calling H. his "bitch" and said that he was going to take him "out to the woods" and "get [him] up the ass." Dawe regularly made these sorts of remarks in the presence of other co-workers, who joined in the harassment with derogatory remarks of their own. On one occasion, for example, Dave Harris encouraged Dawe to take H. out and "get a piece of that young ass." Like Dawe, Stan Goodwin, the plaintiffs' supervisor, referred to H. as a "queer" or "fag" because H. wore an earring. Once, in reference to Dawe's repeated announcement that he planned to take H. "out to the woods" for sexual purposes, Goodwin asked Dawe whether H. was "tight or loose," "would he scream or what?"

For the most part, the co-workers spared J. from these sorts of taunts, content to deride him as the "fat boy." One day, however, after H. contracted a case of poison ivy on his arms, chest, and crotch, Dawe inquired of J. in graphic terms whether H. had passed along his own case of poison ivy to J. through anal sex. Before J. could respond, Goodwin and Harris chimed in that if that were the case, then Dawe must have contracted a rash as well, since he was always taking H. "out to the woods."

The verbal taunting of H. turned physical one day when Harris, noting that H. was in ill humor, told Dawe that his "bitch" appeared to be grumpy and urged Dawe to do something about it. Dawe, who had just returned from a lunch that included a few drinks at a local tavern, walked toward H. saying, "I'm going to finally find out if you are a girl or a guy." H. stepped backward in an attempt to avoid Dawe, but found himself trapped against a wall. Dawe proceeded to grab H. by the testicles and, having done so, announced to the assemblage of co-workers present, "Well, I guess he's a guy." In his deposition, H. testified that following this episode he came to believe that Dawe was actually willing and able to take him out to the woods and sexually assault him.

Following the crotch-grabbing incident, both brothers decided they had had enough and resolved to quit their jobs before the end of the summer. They did not disclose any of these events to their parents, although they did reveal their desire to resign. Their parents suggested that if they did not like their jobs, they should at least give their employer two weeks' notice; hence, the following day, they told Goodwin they would be leaving in a fortnight. The Does did not disclose their actual reason for quitting; instead, fearing reprisals and further taunting if that reason were known, H. and J. concocted a story that they had gotten into some sort of trouble at home and that their father was sending them away to Oklahoma as punishment. But the Does confided in friend and fellow city employee Bonnie Boeving that they really were leaving because of the constant taunting to which they had been subjected on the job; and prior to their intended date of departure, the Does' co-workers learned through the grapevine that the Does were not bound for Oklahoma. Having discovered the deception, their co-workers subjected the Does to even more abuse, culminating in a firecracker being thrown near H., where it exploded. With two days left in their final two weeks of employment, H. and J. immediately left work and never returned.

After filing charges with the EEOC and receiving their right-to-sue letters, the Does filed suit against Belleville claiming that they had been sexually harassed and ultimately (based on the firecracker incident) discharged constructively in retaliation for protesting their mistreatment to Boeving, in violation of Title VII. They further alleged that the harassment amounted to intentional sex discrimination in violation of the Fourteenth Amendment's Equal Protection Clause.

The district court granted summary judgment in favor of the city on all of the plaintiffs' claims. In the court's view, the plaintiffs had not come forward with evidence

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supporting the notion that they were discriminated against on the basis of their sex:

The plaintiffs worked in an all male environment. Both Plaintiffs are white, heterosexual males. The employees responsible for the comments and actions are also white heterosexual males. The comments made and the actions taken did not serve to discriminate against the Plaintiffs because they were male, but rather, these actions and comments implied that the Plaintiffs were homosexual. Title VII does not afford protection [from] this type of conduct.

Order at 3-4; see Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir.1984) ("Congress manifested an intention to exclude homosexuals from Title VII coverage."), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985). Moreover, the court noted, the evidence suggested that neither plaintiff had construed the actions of his co-workers as sexual harassment, for when asked at their depositions whether their co-workers had "made a sexual advance" toward either of them, "asked for sexual favors," asked to "have sex" with them, or had physical contact with them "of a sexual nature," both J. and H. had responded "no." E.g., H. Dep. 29; J. Dep. 40; see Order at 4-5. Because the evidence was thus insufficient to establish sexual harassment cognizable under Title VII, the court reasoned, there could be no viable claim for retaliation, nor could there be a Fourteenth Amendment claim that the plaintiffs were deprived of equal protection. Order at 5-6.

II.

This case was decided below on summary judgment, which is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's decision de novo, of course (e.g., Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1254 (7th Cir.1997)), construing the evidence and any inferences that reasonably may be drawn from it in the light most favorable to the parties opposing summary judgment, in this case J. and H. Doe (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106...

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