Gates v. Bd. of Educ. of Chi.

• Decision Date: 20 February 2019
• Docket Number: No. 17-3143,17-3143
• Citation: 916 F.3d 631
• Parties: Fred GATES, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

916 F.3d 631

Fred GATES, Plaintiff-Appellant,

v.BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.

No. 17-3143

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2018

Decided February 20, 2019

Luanne M. Galovich, Barry A. Gomberg, Attorneys, GOMBERG & ASSOCIATES, Chicago, IL, for Plaintiff-Appellant.

Paul J. Ciastko, Lee A. Lowder, Ashley Seales, Attorneys, CHICAGO BOARD OF EDUCATION, Law Department, Chicago, IL, for Defendant-Appellee.

Before Manion, Hamilton, and Scudder, Circuit Judges.

Hamilton, Circuit Judge.

Plaintiff Fred Gates testified that his direct supervisor, Rafael Rivera, addressed him with the N-word twice, and once threatened to write up his "black ass." The district court granted the employer’s motion for summary judgment on Gates’s claim for a racially hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. In granting summary judgment for the defendant-employer, the district court noted that Gates faced a high bar, "as ‘[t]he workplace that is actionable is one that is "hellish." ’ " Gates v. Board of Education of the City of Chicago , No. 15-CV-1394, 2017 WL 4310648, at *13 (N.D. Ill. Sept. 28, 2017), quoting Perry v. Harris Chernin, Inc. , 126 F.3d 1010, 1013 (7th Cir. 1997) (alteration in original). The court ultimately decided that Rivera’s comments were not severe or pervasive enough to rise to the level of a hostile work environment, an adverse employment action that could entitle Gates to relief under Title VII. Id. at *15.

The district court’s analysis erred in two respects. First, it relied on the "hellish" standard, which is not a standard a plaintiff must satisfy. See Jackson v. County of Racine , 474 F.3d 493, 500 (7th Cir. 2007) ; Johnson v. Advocate Health and Hospitals Corp. , 892 F.3d 887, 901 (7th Cir. 2018), quoting Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21–22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ("Title VII comes into play before the harassing conduct leads to a nervous breakdown."). Second, the district court failed to focus on the difference in our hostile environment cases between having the plaintiff’s co-workers show racial hostility and having the plaintiff’s supervisor show racial hostility, especially in using such poisonous racial epithets as shown in the evidence here. See, e.g., Robinson v. Perales , 894 F.3d 818, 828–29 (7th Cir. 2018) ; Rodgers v. Western-Southern Life Insurance Co. , 12 F.3d 668, 675 (7th Cir. 1993). While we affirm all other portions of the district court’s judgment, we reverse on the claim for a racially hostile environment.

I. Factual and Procedural Background

A. Facts Relevant to Summary Judgment

Our account of the facts reflects the defendant Board’s choice to move for summary judgment. As required, we give plaintiff Gates the benefit of conflicts in the evidence and make reasonable inferences in his favor. Terry v. Gary Community School Corp. , 910 F.3d 1000, 1004 (7th Cir. 2018) ; Johnson , 892 F.3d at 893. The Board and its witnesses will be free to offer their own conflicting evidence at trial, and we do not vouch for the objective truth of Gates’s testimony that we must credit in this appeal.

Gates is an African-American male born in 1965. He has been a building engineer with the Chicago Board of Education since 2004. In 2010, Gates was hired to fill the sole engineer position at William C. Goudy Technology Academy. He reported to school principal Pamela Brandt until December 2012, when Rafael Rivera became his supervisor. Rivera was a facilities engineer who oversaw engineering work at sixteen schools, including Gates’s. Because Rivera supervised so many schools, he and Gates saw each other in person only three times or so per month.

Gates’s issues with Rivera began in June 2013. Gates testified that at a performance meeting that month, Rivera told him: "you will not be promoted because of your age and because you’re black[.]" Despite Rivera’s comment, Gates still applied for a promotion in July and August of 2013, which he did not receive. Gates testified that Rivera prevented him from getting a better job.

According to Gates, in the late summer of 2013, Rivera’s behavior became increasingly offensive. Gates testified that on several occasions Rivera uttered racial epithets against him. Gates described one meeting with Rivera at his school in July or August of 2013. Rivera passed gas and then asked Gates why he did not laugh in response. Gates responded that he did not know why he should laugh or why it was funny. Rivera said "you know what they call that[?]" Gates asked "call what?" and Rivera responded "[w]hen someone fart and a black guy’s sitting there." Gates said "no," and Rivera answered, "you call that a shit-sniffing nigger." Gates claimed that he complained about this incident to Rivera’s supervisor at the time, Ms. Bilqis Jacob-El. Gates testified that Jacob-El asked him whether he had told anyone else about the comment. He said no. She then instructed Gates to keep to himself the details of his encounter with Rivera.

Gates also claimed that in November 2013, Rivera again came to Gates’s school and spoke with him. At this meeting, Rivera yelled at Gates, telling him "you will kiss the principal’s ass to make her happy" or Rivera "would write [him] up, which would cause [Gates] to get low work evaluations and get fired." Gates testified later that Rivera specifically threatened to write Gates’s "black ass up." Gates also testified that in a March 2014 meeting, Rivera ordered him to sit down, prompting the following exchange:

I said I don’t want to sit down, Rafael. He said, well, I’m your boss. I’m ordering you to sit down. So I said I’m not going to sit down. He said I’m tired of you people. I said who are you referring to? He said, nigger, you know what I’m talking about. So I walked out of the library.

On appeal, the Board argued that Rivera could not have exposed Gates to a racially hostile work environment because his interactions with Gates were too infrequent. The Board noted that Rivera made his offending comments over the course of six months, Gates saw Rivera only three times or so per month, and from November 2013 to November 2014, Gates worked only eleven days. (Gates was absent so often because during that year he took multiple approved leaves from work, including bereavement leave for his father’s death, a one-month sick leave, leave under the Family Medical Leave Act to care for his grandfather, and then a nearly one-month military leave.) Gates testified that he used the one-month sick leave in December 2013 to seek medical attention for homicidal thoughts he was experiencing towards Rivera, Principal Brandt, and his school’s vice principal. The homicidal thoughts, Gates testified, were brought on by the discrimination he faced at work.

Rivera began to prepare a pre-discipline notice for Gates in December 2013 citing uncompleted work orders at Gates’s school.¹ Rivera did not actually give this notice to Gates. Rivera later wrote up and issued Gates a different pre-discipline notice on March 17, 2014, just before the library incident. The notice told Gates to report to a pre-discipline hearing to address the issues with his performance on March 20, 2014. According to Gates, the library incident in which Rivera called him the N-word for a second time happened on March 17 or 18 of 2014. Rivera issued Gates a second pre-discipline notice on March 19, 2014 citing insubordination. The second notice scheduled a pre-discipline hearing on March 25, 2014. At the first pre-discipline hearing on March 20, Gates and a representative from his union met with Rivera. Gates told his union representative that he believed he was being discriminated against at work, and the representative advised him to hire an attorney. Gates did not attend the March 25 hearing because he had been injured on the job in the meantime. No formal disciplinary action was taken against Gates. After his injury, Gates went on workers’ compensation leave, and during that time began working a second job at the University of Illinois-Chicago. Rivera informed an employee with the Board’s legal department that Gates had taken several extensive leaves and then found a second job. Gates believed that Rivera took this action to have him fired.

When Gates returned from his leave in November 2014, he was assigned to the Far South Side or Southwest Collaborative, a group of traveling building engineers who work at different schools throughout the southwest side of Chicago. In the position at William C. Goudy Technology Academy that Gates held before his leaves, he was a Class 3 engineer (the lowest-paid of three classes), earning around $82,000 to $87,000 a year.² When Gates testified at his deposition in 2016, he was a Class 2 engineer with the Southwest Collaborative earning between $94,000 and $97,000 a year.

B. Proceedings in Civil Rights Agencies and the District Court

Gates never filed a formal internal complaint with the Board about the discrimination he says he suffered. Instead, on April 14, 2014, he filed a formal charge of discrimination with the Illinois Department of Human Rights and the United States Equal Employment Opportunity Commission. The EEOC issued Gates a notice of his right to sue. Gates then filed a five-count complaint against the Board in the district court alleging age and race discrimination and retaliation. The Board eventually moved for summary judgment on all claims, and the district court granted the motion. Gates v. Board of Education of the City of Chicago , No. 15-CV-1394, 2017 WL 4310648, at *1 (N.D. Ill. Sept. 28, 2017).

As the district court noted, neither Gates’s complaint nor his answers to the Board’s interrogatories said that Rivera had ever used the terms "black," "black ass," "age," or the N-word. Id. at *7. Those specifics surfaced for the first time during Gates’s deposition testimony. The district court carefully considered whether to treat those...