Hamm, Michael J. v. Weyauwega Milk, 061403 FED7, 02-2529

Docket Nº:061403 FED7, 02-2529
Party Name:Hamm
Case Date:June 14, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Hamm, Michael J. v. Weyauwega Milk




In the

United States Court of Appeals

For the Seventh Circuit


No. 02-2529 MICHAEL J. HAMM,






Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00-C-1283—William E. Callahan, Jr., Magistrate Judge.


ARGUED DECEMBER 10, 2003—DECIDED JUNE 13, 2003 ____________

Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Michael Hamm alleges that he was sexually harassed at work by his male coworkers and was terminated as a result of his complaints about the harassment in violation of Title VII. The district court concluded that Hamm could not establish that he was discriminated against “because of” sex as required by Title VII and granted summary judgment in favor of Hamm’s employer, Weyauwega Milk Products. Because we agree with the district court that Hamm’s evidence only supports work performance conflicts or speculation concerning his sexual orientation, we affirm.

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  1. BACKGROUND Michael Hamm, a heterosexual male, began working at Weyauwega Milk Products, a producer of dairy products including cheese, in 1992. Hamm held numerous posi- tions during his employment and his job responsibilities generally included cleaning the equipment and work area, maintaining the supplies, and filling in for other produc- tion employees during breaks or days off. Hamm was regarded as a good employee until approximately 1997, when Weyauwega hired a friend of Hamm’s, Jeff Zietlow. Beginning in early 1998, Hamm filed a number of com- plaints with Weyauwega management and with the Wiscon- sin Equal Rights Division (ERD) alleging harassment by his male coworkers. The Weyauwega plant where Hamm worked was almost entirely male; no women worked in any of the areas of the plant in which Hamm worked.

    Hamm filed his first written complaint with Weyauwega management on January 15, 1998, stating that Dean Bohringer, one of Hamm’s coworkers, threatened that if Hamm did not do his job properly, then Bohringer would “kick [his] ass to make [him] do so.”1 Hamm also de- scribed an incident in the break room in which Bohringer allegedly threw the door open and “started cursing and swearing” at Hamm for failing to replace an empty barrel of cleaning fluid. Hamm further alleged that Bohringer threw the chemical barrel across the room, screamed at him, and told him he should quit. Hamm admits that he yelled back at Bohringer during the incident. Hamm’s complaint related another event during which Bohringer yelled at Hamm because, in Hamm’s view, Bohringer

    1 Many of the comments made in connection with Hamm’s complaints contain vulgar and offensive language, but we believe direct quotes of the language used are required in order to accurately describe Hamm’s allegations.

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    believed that he was disrupting equipment and not work- ing quickly enough.

    Also, beginning in late 1997, and continuing into 1998, Weyauwega began to have concerns about Hamm’s work performance. Many of the complaints about Hamm’s work performance by Weyauwega management and Hamm’s coworkers centered around their perception that Hamm spent too much time talking to Zietlow and engaging in horseplay. In response to Hamm’s initial complaint, Weyauwega instructed Bohringer to “cut down on his swearing when he is mad” and told Hamm to reduce the amount of time he visits with other employees and to more closely follow plant procedures.

    During the summer of 1998, Weyauwega documented a number of work errors committed by Hamm including failing to perform his work duties, damaging a milk truck, and spending too much time talking to Zietlow. Weyauwega eventually gave Hamm a final written warning letter dated August 18, 1998 instructing him to 1) stop the horseplay in which he was involved, 2) stop talking to Jeff Zietlow other than for job-related activities, and 3) cooper- ate with fellow employees and act as a team player.2

    In September of 1998, Hamm filed his first complaint with the ERD. His complaint alleged that he was called a “faggot,” “bisexual,” and “girl scout,” and that his coworker

    2 Beginning in late summer 1998, Hamm also filed a number of reports with Weyauwega police regarding incidents at work or involving work employees. For example, in August 1998, Hamm complained that he was being verbally abused at work, stating that his coworkers were yelling at him, complaining that he was not doing his job, and turning his machines on and off. As similar claims were made in Hamm’s complaints to Weyauwega and the ERD, we address these allegations through Hamm’s complaints to those organizations.

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    Dean Bohringer threatened to snap his neck and threw things at him. Hamm also stated he was retaliated against for reporting these incidents to Weyauwega management. In response to Hamm’s complaints, Weyauwega set up a meeting between Weyauwega management, Hamm, and Bohringer. During the meeting, Bohringer apologized to Hamm, and Hamm promised to focus on correctly perform- ing his job.

    Although exact dates of its genesis are unknown, it is undisputed that during this time a rumor existed among workers at the plant that Hamm and Zietlow’s friend- ship was romantic in nature. Hamm’s coworkers thought it odd when Hamm gave Zietlow a boat and let him use his four-wheel vehicle. The sometimes contentious nature of their friendship also drew the attention of coworkers. Hamm called the police department in January 1999 to report that Zietlow, then under age 21, was in a bar drinking and again in February 1999 to report that Zietlow threatened him. Around the same time, Hamm called the police to report that his vehicle had been dam- aged in the Weyauwega parking lot, and he indicated in his deposition that he believed Zietlow had damaged the vehicle. He also reported that Zietlow had scratched his face. Hamm sued Zietlow in January of 1999 for the return of his four-wheeler, two chain saws, and money that Zietlow had borrowed but not returned. Zietlow was suspended by Weyauwega in early 1999 for striking Hamm’s brother, Joe Hamm, also a plant employee, with a pipe. After Zietlow returned to work, Hamm reported that Zietlow soaked him with a water hose. Zietlow was termi- nated in March of 1999.

    Hamm filed his second complaint with Weyauwega on March 24, 1999, claiming that coworker Fred Kivisto accused Hamm of “looking out of the corner of my eyes at him” and had threatened Hamm with a pipe. Hamm also alleged that Kivisto told coworkers that Hamm was

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    a homosexual and warned them not to bend over in front of him. Kivisto admitted in his deposition that he told Hamm “not to be sizing me up.”

    Approximately two months later, on May 25, 1999, Hamm filed another complaint with Weyauwega alleging that Mike Fischer, a coworker, and Bohringer were watching him while he worked. He also complained that Weyauwega had not adequately addressed his earlier complaints. Hamm filed a fourth written complaint with Weyauwega on June 7, 1999, claiming that Bohringer yelled obscenities at him, ordering him to get off a forklift. He also re- peated his complaint that Kivisto told coworkers not to bend over in front of him.

    Weyauwega investigated Hamms newest complaints. According to Weyauwega, its interviews with Hamms coworkers revealed that they were frustrated with his inability to complete work tasks correctly and with his instigation of problems and rumors at the plant. During his interview for the investigation, Hamm suggested that Bohringer and Fischer were trying to get him...

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