Drake v. Minnesota Min. & Mfg. Co.

Decision Date21 January 1998
Docket NumberNo. 97-1809,97-1809
Citation134 F.3d 878,1998 WL 18036
Parties76 Fair Empl.Prac.Cas. (BNA) 48, 72 Empl. Prac. Dec. P 45,197, 39 Fed.R.Serv.3d 1098 Larry D. DRAKE and Rosalie E. Drake, Plaintiffs-Appellants, v. MINNESOTA MINING & MANUFACTURING COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Bobby A. Potters (argued), Indianapolis, IN, for Plaintiffs-Appellants.

Steven L. Jackson (argued), Baker & Daniels, Fort Wayne, IN, for Defendant-Appellee.

Before BAUER, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Larry Drake and Rosalie Drake, a married couple, each filed employment discrimination claims under Title VII, 42 U.S.C. § 2000e, and race discrimination claims under 42 U.S.C. § 1981 against their former employer, Minnesota Mining & Manufacturing Company ("3M"). The Drakes, both of whom are white, alleged that they were subjected to a hostile work environment, retaliation, and constructive discharge from their jobs, all as a result of their association and friendship with black co-workers. Magistrate Judge Cosbey, presiding over the case with the parties' consent, granted summary judgment to 3M on all of the Drakes' claims. We affirm.


The Drakes both began working as hourly production employees at 3M's plant in Hartford City, Indiana in the early 1960s. 3M currently employs about 300 people at the Hartford facility. Beginning in the mid-1970s, 3M did not hire any new production employees for a period of approximately twenty years, ending in 1993. According to the Drakes, before this effective hiring freeze occurred, 3M had hired only one black hourly employee, Bob Bragg, and one black engineer, Tom Shade. 1 Mr. Drake, who was active in the plant's union, was friendly with Bragg and in the late 1970s nominated Bragg for a position as a union committeeman, to which he was elected. In the Spring of 1993, after Bragg had retired, 3M hired two new black hourly employees, Norman Hawkins and Thomas Anthony. The Drakes quickly befriended both Hawkins and Anthony.

The record is replete with evidence that some of the employees at 3M's plant were racial bigots. For example, Charlie Hamilton, an employee who worked with the Drakes, as well as with Hawkins and Anthony, declared in his affidavit that employees referred to blacks as "niggers", and Hawkins once overheard a white employee twice ask a manager, in reference to Anthony, "What is that lazy nigger doing over there with his glasses off?" In addition, Hamilton's affidavit claimed that Hawkins was required to perform tasks that were not required of similarly situated white employees. Hawkins also claimed that he was paid lower wages because of his race and that he was not given the same opportunity to work overtime as were similarly situated white employees. Mr. Drake, who was an active union member with expertise in grievance procedures, helped Hawkins work out his problems regarding pay rates and overtime hours. Mrs. Drake, who is a minister, provided counseling and spiritual guidance to Hawkins and Anthony regarding the problems that they experienced.

Although the Drakes' counsel asserted that 3M employees began to harass Mr. Drake regarding his friendship with Hawkins and Anthony shortly after they were hired, Mr. Drake's deposition testimony contradicts this account. According to Mr. Drake, his problems began on August 30, 1994, when he was confronted by Phil Glancy, who had been one of his co-workers for over thirty years. Mr. Drake had filed a grievance with the union against Glancy and another hourly employee a few days earlier, alleging that Glancy and the other employee had traded overtime shifts in violation of the union contract. When Mr. Drake reported for work on the 30th, which was apparently the first time that he came into contact with Glancy after he filed the grievance, Glancy confronted Mr. Drake at the plant's time clock. With other employees present, an argument regarding Mr. Drake's grievance ensued in which, according to Mr. Drake, Glancy "jumped on my case" and "went off on me like a madman." During the argument Glancy said to Mr. Drake, "Why don't you take your nose and put it up the black's ass like you have always got it and keep it there?" Mr. Drake complained about the incident to Human Resources Director Dean Coleman, who investigated the incident. Coleman concluded his investigation within one week and decided to suspend both employees without pay for their unprofessional conduct.

While Coleman was conducting his investigation, Mr. Drake was "shunned" by his co-workers. Mr. Drake claims that no one would talk to him at the plant and that whenever he or Mrs. Drake went into the plant's break room, the other workers would "get up and walk off." Mr. Drake never asked anyone why they were shunning him because, he believes, it was obvious that his treatment was the result of his association with Hawkins and Anthony. Mr. Drake never complained to Coleman or any other 3M manager regarding this treatment and took a disability leave for an unrelated condition on September 6. At some point during his leave, Mr. Drake asked his wife to retrieve some personal effects from his locker. Mrs. Drake was told that the lock had been cut and her husband's belongings had been removed pursuant to a company policy that had deemed his locker abandoned. The belongings were turned over to her; Mr. Drake claims that some of his union books and papers were missing. Mr. Drake ultimately retired in February 1995 without ever returning to work at the plant.

Following Mr. Drake's confrontation with Glancy, Mrs. Drake had trouble with Glancy's brother, Jim Glancy, a forklift driver responsible for stocking her work station. When Mrs. Drake told Dean Coleman that Jim was not stocking her station, Coleman talked to Jim and the problem was resolved within one day. Other than this incident, Mrs. Drake had no problems with her co-workers until December 11, 1994, which was around the time that the local newspaper ran a series of articles regarding racial tensions at the 3M plant. In an article published on December 12, Mr. Drake, who was still on disability leave, was quoted as stating that Hawkins and Anthony "were being treated like dogs" at the 3M plant. Mrs. Drake claims that she was shunned by all but a handful of her co-workers as a result of these articles. Although she talked to Coleman regarding this treatment, she told him that she did not want him to do anything in particular except to talk to one employee. Mrs. Drake told Coleman that the treatment she was receiving was not affecting her work production or safety. She took a medical leave in mid-December for ten days, returned to work in late December, and went on leave again on February 21, 1995. On one occasion prior to taking her second disability leave, one of Mrs. Drake's co-workers told her that he feared for her safety and advised her to leave the plant. Mrs. Drake retired during her second leave.

Following the publication of the newspaper articles, Mr. Drake also received three sexually explicit, racially tinged, telephone calls at his and Mrs. Drake's home. Mrs. Drake told Coleman about the calls, although she did not tell him specifically what the callers had said. Coleman told Mrs. Drake that he would look into the matter, and he later told her that it was impossible to determine whether the calls had been made from the plant.

In the district court, Mr. and Mrs. Drake each stated a claim for hostile environment race discrimination. Magistrate Judge Cosbey granted summary judgment on Mr. Drake's claim because the evidence did not support an inference that any harassment he had endured was a result of his association with black employees. With respect to Mrs. Drake's claim, the court granted summary judgment because the evidence did not even establish an inference of racial association cognizable under Title VII. In the alternative, the court determined that neither of the Drakes had established a prima facie case of hostile environment harassment. The Drakes also stated claims of retaliation; the district court found that neither of them had established a prima facie case. Last, the Drakes filed claims that they had been constructively discharged by 3M. The district court found that their work conditions did not approach the intolerable level necessary to support such claims.

A. Appellate Jurisdiction

Before reaching the merits of the Drakes' appeals, we must resolve the question of our appellate jurisdiction. As indicated above, the Drakes and 3M purported to consent to have their case tried before a magistrate judge. Because magistrate judges do not have the power to enter a final appealable judgment unless the parties enter their consent, see 28 U.S.C. § 636(c)(1), Circuit Rule 28(b)(2)(v) requires that when an appeal under 28 U.S.C. § 636(c)(3) is taken from the decision of a magistrate judge, the jurisdictional statement in the appellants' brief shall state "the dates on which each party consented in writing to the entry of final judgment by the magistrate." Yet the Drakes' brief did not include this information. 3M, which was required by Circuit Rule 28(c) to correct any errors or omissions in the appellants' jurisdictional statement, accepted the Drakes' statement as "complete and correct". Our further attempts to locate in the record the signed consents of the Drakes and 3M proved unavailing.

At oral argument, counsel for the Drakes suggested that 3M's acceptance of the Drakes' jurisdictional statement obviated any difficulties posed by the failure to comply with our Circuit Rule. It is a basic principle, however, that the parties cannot stipulate to the subject-matter jurisdiction of the federal courts and, "in the absence of consent, review of a magistrate judge's decision lies in the district court." Stanley v. Amoco Oil Co., 965 F.2d 203, 204 (7th Cir.1992) (per curiam). Valid...

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