Moore v. Vital Products

• Decision Date: 25 May 2011
• Docket Number: Nos. 09–1527,09–1537.,s. 09–1527
• Citation: 112 Fair Empl.Prac.Cas. (BNA) 513,641 F.3d 253,32 IER Cases 544
• Parties: Raymond MOORE, Plaintiff–Appellant, Cross–Appellee,v.VITAL PRODUCTS, INCORPORATED, Defendant–Appellee, Cross–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

641 F.3d 253

112 Fair Empl.Prac.Cas. (BNA) 513

94 Empl. Prac. Dec. P 44,185

32 IER Cases 544

Raymond MOORE, Plaintiff–Appellant, Cross–Appellee,

v.VITAL PRODUCTS, INCORPORATED, Defendant–Appellee, Cross–Appellant.

Nos. 09–1527

09–1537.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 27, 2010.Decided May 25, 2011.

L. Steven Platt (argued), Attorney, Pedersen & Houpt, Chicago, IL, for Plaintiff–Appellant, Cross–Appellee.Michael J. Mueller, Attorney, William A. Buzogany (argued), Attorney, Buzogany Marks Mueller LLC, Chicago, IL, for Defendant–Appellee, Cross–Appellant.Before EASTERBROOK, Chief Judge, and KANNE and WOOD, Circuit Judges.KANNE, Circuit Judge.

Raymond Moore sued Vital Products, Incorporated (“Vital”) in federal district court. He alleged racial and sexual discrimination, a hostile work environment, and retaliation, all in violation of Title VII, and retaliatory discharge in violation of the Illinois Workers' Compensation Act (“IWCA”). Vital moved for summary judgment on all counts, which the district court granted. Vital also moved for sanctions, which the district court denied. Moore appeals the grant of summary judgment on all counts, and Vital cross-appeals the denial of sanctions. Vital also requests sanctions for a frivolous appeal. We affirm the district court's grant of summary judgment as to Moore's Title VII claims, but reverse as to his IWCA retaliation claim. We also affirm the district court's denial of sanctions and reject Vital's latest motion for sanctions.

I. Background

The parties dispute many of the events leading up to this case. The narrative we present is based on Moore's (the non-moving party's) account, as found in the record.

Vital hired Moore effective August 16, 2004. Moore worked as a driver technician, delivering and installing durable medical equipment. Each day, Moore submitted a copy of the route he planned to use. Vital had only one functioning copy machine, which was located in the office of Richard Cocking, Vital's accounts manager.

Moore did not look forward to making copies in Cocking's office. Cocking sometimes brushed his body up against Moore's and blocked Moore from leaving or moving around in the office. In Cocking's office, Moore observed a calendar with pictures of men kissing and embracing other men, a picture of an apparently naked man sitting on a toilet, several items of sexual paraphernalia, and other sexually suggestive items. Cocking called Moore “boo,” “queen,” “Mr. Man,” “sweetie,” “sexy,” “big boy,” and “trade.” He also made an unwelcome reference to the size of Moore's penis.

Moore complained to his supervisor, Ricardo Matta, about Cocking's behavior and office décor. Matta dismissed the complaint, jokingly suggesting that Cocking was sexually interested in Moore. Matta also behaved inappropriately on other occasions. Shortly after Moore began working for Vital, Matta gave Moore unwelcome compliments about his appearance. At times, Matta called Moore “nigger,” “bitch ass,” “bitch ass nigger,” “dumb ass,” and “punk ass.” Finally, Matta publicly questioned Moore's ability to attract women and implied that Moore possessed below-average intelligence. Matta made similar racial comments to Vital employee Glenn Davis, who is also black.

Another Vital employee, Jarilez Suarez, also made racial comments toward Moore. Once, Suarez and Matta showed some male employees pornographic videotapes. In August and September 2004, Moore wrote several letters complaining of racial and sexual harassment. He left these letters under the door of Vital's president, William Buzogany, who claims never to have received such a letter. Moore then requested a grievance form from Matta, who did not give him one.

On January 3, 2005, Moore was suspended for poor job performance. After returning to work, Moore injured his back on February 16, 2005. Since that date, Moore has not been present to work at Vital. On February 28, 2005, Vital filled out Moore's injury report.

Moore lost his health insurance coverage sometime before September 2, 2005. On that date, Moore's attorney sent a letter to Vital asking about the status of Moore's insurance coverage. Moore had not exercised his right to maintain coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Buzogany's response explained that Moore had failed to pay his COBRA premiums and that he had therefore lost his insurance coverage. Buzogany enclosed a copy of a previously-mailed COBRA notice, which Moore never received. The COBRA notice, dated February 21, 2005, includes language suggesting that Moore was no longer a Vital employee.

On December 7, 2005, Moore filed a Charge of Discrimination with the Equal Employment Opportunity Commission. In the EEOC charge, Moore alleged retaliation and a continuing and ongoing hostile work environment based on race and gender. The charge did not allege discriminatory or retaliatory discharge. Rather, Moore represented that he was still employed, though on injury leave.

On June 4, 2006, Buzogany drafted a letter informing Moore of an available position within the restrictions imposed by Moore's injury. The letter was never mailed to Moore, and Moore has asserted that he never saw the letter before filing suit.

On February 16, 2007, Moore filed suit in federal district court. He alleged a hostile work environment based on race and gender, discriminatory discharge, and retaliatory discharge, all in violation of Title VII. He also alleged retaliatory discharge in violation of the IWCA. The district court granted summary judgment for Vital on all counts, but denied Vital's motion for sanctions. Moore appealed the grant of summary judgment, while Vital appealed the denial of sanctions. Vital also requested sanctions from this court.

II. Analysis

A. Summary Judgment

We review a grant of summary judgment de novo. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir.2010). We construe all facts and draw all reasonable inferences in favor of the nonmoving party. Id. Summary judgment is appropriate if the record shows that there is “no genuine issue as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Moore appeals the grant of summary judgment as to his hostile work environment, Title VII discriminatory discharge, Title VII retaliatory discharge, and IWCA retaliatory discharge claims. We address each in turn.

1. Hostile Work Environment

To bring a Title VII claim, a plaintiff must file an EEOC charge within 300 days of the conduct underlying the claim. 42 U.S.C. § 2000e–5(e)(1); see also Chaudhry v. Nucor Steel–Indiana, 546 F.3d 832, 836 (7th Cir.2008). Any complaint of conduct that occurred more than 300 days before the relevant EEOC charge is time-barred. Chaudhry, 546 F.3d at 836–37. Moore filed an EEOC charge on December 7, 2005, so he can only complain of a hostile work environment if it existed after February 10, 2005. See Fed.R.Civ.P. 6(a)(1). Moore did not show up to work at Vital on any day after February 16, 2005, and he does not claim to have been subject to a hostile work environment after that date. Therefore, he must show that a hostile work environment existed between February 10 and 16, 2005.

An employee need only file an EEOC charge within 300 days of the last hostile act in a continuous and ongoing hostile work environment. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117–18, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Pruitt v. City of Chicago, 472 F.3d 925, 927 (7th Cir.2006). To avoid summary judgment, therefore, Moore needed only to bring forth evidence that would allow a jury to conclude that some action contributing to the alleged hostile work environment took place after February 10. But Moore did not do so. He can identify no incident occurring between February 10 and 16 that even suggests the existence of a hostile work environment. Moore's strongest evidence is the EEOC charge itself, which alleges “continuous and on-going” harassment, and his deposition testimony that Cocking's inappropriate behavior occurred on “different occasions.” This evidence would not allow a jury to find that any action after February 10 contributed to a hostile work environment. The grant of summary judgment on this claim was appropriate.

2. Title VII Discriminatory Discharge Claims

Moore claims he was discharged in violation of Title VII because Vital was motivated by racial and sexual discrimination in discharging him. The district court correctly held that Moore could not bring these claims because he had not included them in his EEOC charge. “Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC.” Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir.2003). But if certain claims are not included in an EEOC charge, a plaintiff can still bring them if they are “like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations.” Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976) ( en banc ). To be “like or reasonably related,” the relevant claim and the EEOC charge “must, at minimum, describe the same conduct and implicate the same individuals.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir.1994) (emphasis removed). Whether Moore's discharge claims are within the scope of his EEOC charge is a question of law. Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680 (7th Cir.2005).

Moore's discriminatory discharge claims were not like or reasonably related to the allegations in his EEOC charge. To be sure, Moore's EEOC charge shows (by checked boxes) that he was alleging sex discrimination, race discrimination, and retaliation claims. But merely checking the “Race” and “Sex” discrimination boxes in the EEOC charge is not enough to make the EEOC charge like or reasonably related to Moore's discriminatory discharge claims. See...