Hernandez v. Hch Miller Park Joint Venture, 04-3615.

• Decision Date: 12 August 2005
• Docket Number: No. 04-3615.,04-3615.
• Parties: Danielle Clark HERNANDEZ, Plaintiff-Appellant, v. HCH MILLER PARK JOINT VENTURE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

418 F.3d 732

Danielle Clark HERNANDEZ, Plaintiff-Appellant, v. HCH MILLER PARK JOINT VENTURE, Defendant-Appellee.

No. 04-3615.

United States Court of Appeals, Seventh Circuit.

Argued June 9, 2005.

Decided August 12, 2005.

Richard J. Gonzalez (argued), Chicago-Kent College of Law, Chicago, IL, for Plaintiff-Appellant.

Mark S. Nelson (argued), Nelson, Connell & Kramer, Brookfield, WI, for Defendant-Appellee.

Christina Brandt-Young, Legal Momentum, New York, NY, for Amicus Curiae.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Danielle Hernandez sued her former employer, HCH Miller Park Joint Venture ("HCH"), for sex discrimination and retaliation under Title VII. A jury returned a verdict in favor of HCH. Hernandez appeals, challenging the district court's exclusion of evidence and its mixed-motive jury instruction. We affirm.

I.

In 1997, construction began on Miller Park, the new baseball stadium for the Milwaukee Brewers. HCH served as the construction manager for this project. Although it subcontracted much of the work, HCH reserved for itself some tasks, including general cleanup, monitoring of conditions, preparing concrete forms, and the placement of concrete on the site. To perform these tasks, HCH employed carpenters, operators, and laborers. In June 1997, HCH hired Danielle Hernandez to work as a laborer.

Laborers at Miller Park performed a number of functions, including sweeping, cleaning, demolition, assisting carpenter crews, pouring and placing concrete, and working in the "bone yard" (an area near the construction site where materials, including lumber, were kept and organized). Laborers could be assigned to any of these tasks.

While working at Miller Park, Hernandez spent most of her time assisting the carpenter crew. Hernandez, however, preferred to work on the concrete crew because, although both assignments paid the same, Hernandez believed that she would qualify for more overtime pay on the concrete crew. Notwithstanding her desire to work with the concrete crew, during the approximately two years Hernandez worked for HCH, she was assigned to the concrete crew only four or five times. Hernandez regularly complained about the lack of more concrete assignments.

Hernandez also complained to the Milwaukee County Director of Contract Compliance that she was not given the opportunity to do more skilled work and that instead she was relegated to menial and dreary tasks, such as picking up, sweeping, and carrying lumber from one area to another. Hernandez claims that after she complained, she was exiled for two weeks to the "bone yard."

Following a crane accident in July 1999, which shut down construction temporarily, Hernandez accepted a position with another employer. In September 1999, Hernandez returned to HCH, but following a slowdown in work, she was again laid off in January 2000. In March 2000, she returned once more to Miller Park, but was terminated at the conclusion of that project.

Nearly two years later, on March 29, 2002, Hernandez filed suit against HCH alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Hernandez's claims were tried to a jury. To prove her claims of sex discrimination and retaliation, Hernandez wanted to present evidence that the toilet facilities at Miller Park were dirty and contained graffiti, contending that the condition of the toilets was essentially an attempt to discourage women from working at Miller Park. Prior to voir dire, HCH orally moved to exclude evidence related to the condition of the toilet facilities at Miller Park, arguing that this evidence was irrelevant and that any relevance was outweighed by unfair prejudice and, therefore, inadmissible under Fed.R.Evid. 403. The district court delayed ruling on this motion until trial. Once trial began and Hernandez called a witness expected to testify about the condition of the toilets HCH renewed its objection to that testimony. After hearing additional argument, the district court ruled that the evidence was inadmissible.

Trial then proceeded, with the jury hearing from Hernandez and numerous HCH employees, who testified about Hernandez's employment at HCH, including her work assignments. Among other things, Hernandez presented evidence at trial that the few times that she was permitted to work on the concrete crew, she did her job very well. Conversely, HCH presented testimony that, when it had assigned Hernandez to pour concrete, she moved awkwardly in and about the concrete, and that she failed to move the material efficiently. Also, she did not work at the necessary pace, and instead of digging into the concrete to move it forward, as required, she merely scratched the concrete surface. HCH also presented evidence that on one occasion Hernandez improperly walked through an area of finished concrete. In addition, there was testimony that employees of another subcontractor complained about her work and threatened to walk off the job if she were assigned to another concrete pour.

For her part, Hernandez testified at trial that on approximately ninety occasions she was denied overtime in favor of a male employee. HCH responded by providing an analysis of Hernandez's overtime compared to other employees. This analysis showed that Hernandez received 368 hours of overtime, and was in fact one of the highest overtime-earning laborers, other than management employees.

Additionally, at trial Hernandez claimed that she was assigned to the bone yard in retaliation for complaining about not being assigned to pour concrete. HCH presented testimony, however, that working in the bone yard was a typical assignment for laborers and that when she worked there, another male laborer had also been assigned that task. Hernandez further complained that the locks on some of the portable toilets were broken, but the HCH superintendent testified that when he was informed that a lock was broken, it was fixed within one day.

Following the trial testimony, the district court instructed the jury on the law of sex discrimination, including the law related to a mixed-motive case. The district court instructed the jury that "if you find that the defendant's¹ sex was a motivating factor in the defendant's actions regarding the terms and conditions of plaintiff's employment, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason." Hernandez had objected to this instruction, arguing that the district court should have used the word "treatment" as opposed to "terms and conditions," but the district court rejected Hernandez's formulation. The jury returned a verdict in favor of HCH. Hernandez appeals.

II.

On appeal, Hernandez presents two arguments. First, she claims that the district court erred in excluding evidence about the condition of the toilets, including the presence of graffiti in the portable facilities. Second, Hernandez argues that the district court erred in rejecting her formulation of the mixed-motive instruction. We consider each issue in turn.

A. Condition of the Toilets

As noted, Hernandez first challenges the district court's exclusion of evidence concerning the condition of the toilets available at the Miller Park construction site. The district court held that this evidence was irrelevant because Hernandez was not presenting a hostile work environment claim. Evidentiary rulings are reviewed for an abuse of discretion. Manuel v. City of Chicago, 335 F.3d 592, 595 (7th Cir.2003).

On appeal, as to the graffiti, Hernandez claims this evidence was relevant because "[e]vidence that there was sexually-explicit graffiti in the portable toilets and that it remained there after Hernandez and other women complained is relevant to the question of whether Hernandez was treated less favorably than her male co-workers because of her sex." She further claims that "[e]vidence of sexually harassing comments or behavior may be admissible and relevant to show general sex bias and therefore to prove discriminatory intent."

Although in making these arguments on appeal Hernandez maintains that the graffiti was sexually explicit and was "sexually harassing," her offer of proof before the district court did not state that the graffiti was of a sexual or anti-female nature. On appeal, Hernandez attempted to overcome this deficiency by filing with this court photographs depicting the graffiti. However, this court may only consider evidence properly presented to the district court, and, before the district court, Hernandez failed to proffer any evidence that the graffiti had anything to do with sex or women. See United States v. Elizalde-Adame, 262 F.3d 637, 640 (7th Cir.2001) (holding that a party cannot "add materials to the record on appeal which were not before the district court").

Moreover, even assuming the graffiti was sexually charged, Hernandez failed to tie the graffiti to an HCH employee, much less a decisionmaker. This is significant because Hernandez did not present a hostile environment claim, but instead argues that the graffiti helps establish that HCH had a general bias against women. However, without evidence that a decisionmaker was responsible for the graffiti, evidence that the graffiti was sexually charged cannot establish that a decisionmaker holds an anti-female bias, and, in this case, the evidence established that hundreds of subcontractors worked on the construction site, and any one of them could have been responsible for the graffiti. Or the graffiti might have been on the portable toilets prior to their placement at Miller Park. Therefore, evidence of the graffiti is irrelevant to Hernandez's sex discrimination claim against HCH. See Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1099 (7th Cir.2001) (holding that sexist comments "are relevant only when attributable to the person who made the adverse employment...