Cole v. Bd. of Trs. of N. Ill. Univ.

• Decision Date: 27 September 2016
• Docket Number: No. 15-2305,15-2305
• Citation: 838 F.3d 888
• Parties: Jerome Cole, Plaintiff–Appellant, v. Board of Trustees of Northern Illinois University, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

838 F.3d 888

Jerome Cole, Plaintiff–Appellant,
v.
Board of Trustees of Northern Illinois University, et al., Defendants–Appellees.

No. 15-2305

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2016
Decided September 27, 2016

Fabian John Rosati, Attorney, Law Office of Fabian J. Rosati, Chicago, IL, for Plaintiff–Appellant.

Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, Defendants–Appellees.

Before Posner, Kanne, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Plaintiff Jerome Cole has worked for Northern Illinois University in the Building Services Department since 1998. He is African–American, and he alleges that beginning in 2009, he experienced race discrimination, retaliation, and a hostile work environment, including the discovery of a hangman's noose in his newly assigned workspace. He sued the university's board of trustees and eleven individual university employees asserting violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2, –3, and the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the defendants.

We affirm. The hostile work environment claim presents the closest question, but Cole has not shown a basis for employer liability for the alleged harassment. Cole also has not offered evidence that would allow a reasonable trier of fact to find that he was subjected to disparate treatment based on his race. His retaliation claim fails because he has not offered evidence that he engaged in protected activity.

I. Factual and Procedural Background

Plaintiff Cole began working for the Building Services Department at Northern Illinois University in 1998. In 2009, he became a sub-foreman, a non-union position. In 2011, Cole says, he was promoted to foreman. (Defendants dispute the point, saying that Cole was actually an acting sub-foreman who was improperly paid foreman-level wages, but for purposes of summary judgment we accept Cole's version of the facts.) At all relevant times, Cole was the only African–American foreman or sub-foreman in the department.

A. Alleged Discriminatory Treatment

Cole's promotion to sub-foreman marked the start of what he terms a “laundry list of events” amounting to unfair and discriminatory treatment. It began with his own privileges as a sub-foreman. As far as Cole knew, he did not have a budget to order supplies for his assigned work areas, and unlike other foremen, he did not have the authority to place commodity orders. He also believed that friends and family of supervisors in the department were making more money than they should have. He spoke about those concerns repeatedly

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with Brian Hart, the assistant superintendent for the department, and with Steven Wilhelm, a Building Services supervisor, and with Jesse Perez, the university's director of administration and labor relations.

In addition to these more general, ongoing complaints, Cole points to some specific events that he argues showed race discrimination. For example, Cole complains that on one occasion, some of his student-athlete workers were required to load scrap metal from areas outside of Cole's responsibility onto salvage trucks. He was concerned that he might be accused of wrongdoing after overhearing that some of the profits from the scrap metal might be missing. He notified Perez of the incident. He also spoke to Sara Cliffe, who was the assistant director of compliance at the university. In another incident, Cole learned of a substantial paper towel purchase made in his name. Concerned that someone might have been using his name without his permission, he reported the incident to Wilhelm and Hart. They assured him they would take care of it. (As far as we can tell, no further trouble ever resulted from either of these incidents.)

On several occasions after 2009, Cole was accused of unauthorized key possession by a number of Building Services supervisors, including Wilhelm, Rhonda Richards, Charlotte Marx, and Tammie Pulak. Cole testified that he never actually had the keys he was accused of possessing, though once he was required to search for a key in the snow when he says Richards knew it was already accounted for.¹ Eventually, Bill Nicklas, who was the acting superintendent of the department until he took over as vice president of public safety and community relations in November 2012, advised Cole not to go to key control because Marx had threatened to call the police on him.² Cole also testified that he had been told that Pulak instructed the university police to watch him for no legitimate reason. He reported the surveillance to Hart. Afterward he arrived at work one day to find that his door had been kicked in, his office cleaned out, and his supplies placed on a cart, all without his knowledge or approval. Cole complained about the incident to Perez and Cliffe.

In August 2012, Cole filed an ethics complaint with the university about an array of alleged unethical practices. According to Cliffe, who conducted the investigation, Cole complained that:

• Employees with connections to supervisors were being paid more than the standard salaries.

• Employees were supervising their own children.

• Supplies had been ordered under Cole's name without his knowledge or authorization.

• Cameras had been recording Cole and his crew.

• Police had called on Cole due to past complaints.

• A retired university employee still possessed and used his university cell phone.

• There were recording devices in foremen's offices.

Cliffe investigated, and she substantiated three of Cole's complaints: supervisors had supervised their own children, employees'

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friends and family received special consideration for assignment to special projects, and the retired employee did indeed still have his university cell phone. She found that the rest of Cole's allegations were unfounded.

B. Demotion and Later Discipline

In addition to the specific complaints outlined above, Cole was demoted in 2012. In August of that year, Nicklas became the acting superintendent of the Building Services Department. He learned that a hiring freeze was in place. He also became aware that Cole and Ruth Stone, an acting sub-foreman in the same department, had been promoted without attention to proper procedures.³ Because Cole and Stone were in an unusual situation, Nicklas testified, he tried to ensure proper procedures going forward while being as “fair as possible” to those who would be affected by the changes. For Cole and Stone, this meant placing them on the hiring register regardless of their test scores but requiring them to interview for sub-foreman positions along with other candidates. Cole and Stone completed the hiring process as modified. Both accepted jobs as sub-foremen beginning November 1, 2012. They received the sub-foreman pay rate and were subject to the normal six-month probationary period. Since this case is before us on appeal from summary judgment, we assume this hiring process constituted a demotion. It is undisputed, however, that Stone, a white woman, was demoted at the same time Cole was, and on the same grounds.

Following his six-month probationary period, Cole was disciplined twice. On July 25, 2013, he received a written warning for non-compliance with instructions and “borderline insubordination” based on his failure to follow directives and poor job performance. On September 17, 2013, Cole received a recommendation for a three-day suspension for disruptive behavior in the workplace, failing to obtain supervisors' approval when he could not work a scheduled shift, and “using improper employee evaluation protocol.” Cole has not presented additional evidence relating to those disciplinary actions or provided details to put into dispute the reasons the defendants have offered for the discipline.

C. Noose Incidents

The most troubling incident Cole describes occurred in mid-November 2012, when he discovered a hangman's noose in his new work area. Cole threw the noose away, but inexplicably, the next day he discovered the same or possibly a second noose outside the building. A department sub-foreman, John Holmes, told Cole that Holmes, Richards, and non-defendant Rich Carter had found the noose earlier in an office on the other side of Cole's new work area. Holmes was inconsistent about what had happened to the noose after that earlier discovery. He first said he had left the noose with Richards and Carter but later claimed he had thrown it out.

Cole called two police officers he knew for advice. Both advised him to “keep his cool” to try to “smoke out” the perpetrator. Cole took the noose to the university police department. He later e-mailed Richards and told her that he had discovered a noose and taken it to the police. The e-mail followed the advice Cole had received from his acquaintances. He told Richards that he thought nothing of the incident; that he assumed Fred Warning, a former employee, had left the noose in his workspace and

838 F.3d 894

was just “being silly;” that he was not offended; and that he hoped nothing came of it because to him it was “no big deal.” Because we must resolve factual disputes in Cole's...