Johnson v. Hondo, Inc.

• Decision Date: 28 August 1997
• Docket Number: No. 96-3492,96-3492
• Citation: 125 F.3d 408
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1398, 71 Empl. Prac. Dec. P 44,957 Craig S. JOHNSON, Plaintiff-Appellant, v. HONDO, INCORPORATED, a foreign corporation, doing business as Coca-Cola Bottling Company of Wisconsin, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 408

125 F.3d 408

74 Fair Empl.Prac.Cas. (BNA) 1398,

71 Empl. Prac. Dec. P 44,957

Craig S. JOHNSON, Plaintiff-Appellant, v. HONDO, INCORPORATED, a foreign corporation, doing business

as Coca-Cola Bottling Company of Wisconsin,

Defendant-Appellee.

No. 96-3492.

United States Court of Appeals, Seventh Circuit.

Argued May 16, 1997.

Decided Aug. 28, 1997.

E. Campion Kersten (argued), Kersten & McKinnon, Milwaukee, WI, for Plaintiff-Appellant.

Bradford L. Livingston, David J. Rowland (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee.

Before CUMMINGS, FLAUM and RIPPLE, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Craig Johnson filed this suit in the Circuit Court of Milwaukee County, Wisconsin, alleging, among other things, that Hondo, Incorporated, doing business as Coca-Cola Bottling Company of Wisconsin (hereafter "Coca-Cola"), was liable under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., for failing to put a stop to the sexual harassment by a male co-worker, Ollie Hicks, that he allegedly suffered while employed at Coca-Cola. Johnson's Title VII claim also charges that he was terminated in retaliation for complaining about the sexual harassment by Hicks. In addition to the Title VII claims (Count VI), Johnson alleged five state law causes of action: (1) malicious prosecution; (2) assault and battery; (3) intentional infliction of emotional distress; (4) invasion of privacy; and (5) negligent retention and supervision of Hicks. Coca-Cola removed the case to federal district court pursuant to 28 U.S.C. § 1441.

On August 24, 1995, Coca-Cola filed a motion to dismiss Johnson's common law tort claims (Counts I through V) and this motion was granted in January 1996. As to Count I for malicious prosecution, Judge Warren held that Johnson failed to allege adequate facts. As to Counts II-V, he held that the claims were barred by the exclusivity provision of the Wisconsin Worker's Compensation Act. (Plaintiff's App. 34-35).

In June 1996, Coca-Cola filed a motion for summary judgment on the Title VII claims in Count VI concerning the sexual harassment by co-worker Hicks, and Johnson's alleged suspension and discharge in retaliation for complaining about that harassment. Summary judgment was granted in favor of Coca-Cola in September 1996 (Plaintiff's App. 20). For the reasons that follow we affirm the judgment of the district court.

FACTS

Johnson was employed by Coca-Cola from 1972 until his 1993 termination. At all times relevant to this litigation he worked as a second-shift "night loader." In addition to loading and unloading trucks, "night loaders" operate forklifts and arrange cases of Coca-Cola product on pallets according to customer orders. In 1988, Ollie Hicks was hired by Coca-Cola as a night loader and worked with Johnson. They worked in an all-male environment. Johnson claims that Hicks frequently told him "I am going to make you suck my dick" or some similar variant on this theme. ¹ In return, Johnson called Hicks a "punk," "faggot," "fag" and "s.o.b." ² Johnson also claims that Hicks made such comments to two other male co-workers. Furthermore, Johnson maintains that he and other workers repeatedly complained about Hicks' harassment to their supervisors and managers and asked them to stop it. Nevertheless Coca-Cola failed to conduct any meaningful investigation and ignored the complaints and ridiculed Johnson for his complaints.

In pertinent part, the district court summarized Johnson's showing as follows:

Johnson states Hicks persistently came up to him and would brush against him. Hicks would "grab and manipulate his crotch" and state "[g]onna [sic] get my dick sucked." (Johnson Aff. p 35.) Johnson's claim of sexual harassment consists of repeated comments by Hicks directed On July 15, 1993, Hicks told another employee in Johnson's presence "I think I'm going to get my dick sucked tonight" and looked in a threatening manner at Johnson. (Johnson Aff. p 42.) Johnson responded, "I'm sick of you fucking with me. What is your goddamn problem?" (Id.) Hicks made a "come on" motion with his fingers and said, "Across the street, across the street." Johnson responded, "No, let's talk about it now," but eventually agreed to go across the street during the lunch hour. (Id. at p 43.) Johnson and Hicks drove their cars off the company premises and across the street. Johnson stated, "Why are you fucking with me, what's the problem, because I want this stopped now." (Id. at p 45.)

                toward Johnson, for example, "I'm going to make you suck my dick."   Hicks also made comments about Johnson's girlfriend, stating that he would have her "suck his dick because she's got a nice ass."  (Johnson Dep. at 90.)   Johnson admits that he called Hicks a "punk" (referring to a prisoner's homosexual partner), "faggot," "fag" and "S.O.B." as a reaction and in response to Hicks' harassing comments.  (Johnson Aff. p 35.)   Johnson also occasionally used profane language while at work.  (Johnson Dep. at 43.)   Hicks never physically touched Johnson, never threatened Johnson, never exposed himself to Johnson, never called Johnson at home or came to his home, and never sent him anything in writing.  (Johnson Dep. at 107-08;  Def.  Statement of Undisputed Material Facts p 42.)
                

(Plaintiff's App. 3-4.)

The record further indicates that when the two men went across the street, Johnson arrived first, got out of his car, and stood along side it. Shortly thereafter, Hicks pulled up across the street, walked to his car trunk and removed a jack stand. Consequently Johnson went to his car trunk and grabbed a baseball bat. Both men exchanged blows and Hicks was knocked on his back. Johnson continued to strike Hicks with his bat. Afterwards Hicks was transported by ambulance to a hospital. Johnson returned to work.

Both men were immediately suspended while Coca-Cola investigated the altercation. Thereafter they were terminated for engaging in the fight, which violated Coca-Cola's rules of conduct. Johnson was charged criminally with aggravated battery but the jury acquitted him on grounds of self-defense.

The instant suit ensued but, as previously noted, the district court dismissed Johnson's common-law claims and granted summary judgment in Coca-Cola's favor on his Title VII claims.

ANALYSIS

Same-sex harassment

In the district court's opinion granting defendant's motion for summary judgment, Judge Warren concluded that same-sex harassment is included in Title VII's prohibition against discrimination based on gender. The opinion noted the split in the authorities in the federal courts-some holding that same-sex harassment is not cognizable under Title VII, others holding to the contrary--and decided to follow a dictum of this Court in Baskerville v. Culligan International Co., 50 F.3d 428, 430 (1995), where Chief Judge Posner, writing for the panel, remarked "[s]exual harassment of women by men is the most common kind, but we do not mean to exclude the possibility that sexual harassment of men by women, or men by other men, or women by other women would not also be actionable in appropriate cases." In accord with Baskerville's dictum, Judge Warren cited Griffith v. Keystone Steel and Wire, 887 F.Supp. 1133, 1136 (C.D.Ill.1995) and Vandeventer v. Wabash Nat'l Corp., 887 F.Supp. 1178, 1181 (N.D.Ind.1995). ³ The district judge also cited the Equal Employment Opportunity Commission's Compliance Manual, CCH § 615.2(b)(3), as support for the proposition that the respective sexes of the harasser and the victim are irrelevant as to a violation of Title VII. The Compliance Manual expressly states that "[t]he victim does not have to be of the opposite sex from the harasser." Id. In accord with these authorities the district judge concluded that same-sex harassment fell within the purview of Title VII.

Judge Warren read Baskerville's dictum correctly. Subsequently, in Doe v. City of Belleville, Illinois, 119 F.3d 563 (7th Cir.1997), this Court explored the subject in an exhaustive opinion by Judge Rovner, with Judge Manion concurring in part and dissenting in part, and concluded that same-sex harassment was actionable under Title VII. In view of the recency of Judge Rovner's comprehensive treatment of the issue in Doe, there is no need to rehash the analysis here. It is sufficient to state that in accordance with Doe, we agree with Judge Warren's interpretation of Title VII as including a prohibition against sexual harassment of men by other men.

In holding that Johnson did not satisfy the requirements for a same-sex harassment cause of action, Judge Warren concluded that Hicks' conduct was not sufficiently severe or pervasive for Johnson to establish a case of sexual harassment under Title VII. Judge Warren found that Hicks' conduct did not "cross 'the line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing.' " (Plaintiff's App. at 14-15) (quoting Carr v. Allison Gas Turbine, 32 F.3d 1007, 1010 (7th Cir.1994)). In this regard, the district judge observed that Johnson responded to Hicks with coarse language and derogatory comments, and concluded, notwithstanding self-serving statements in his affidavit, that the evidence did not indicate that Johnson was at all intimidated by Hicks. ⁴

Most importantly, Judge Warren found that Johnson had failed to raise a genuine issue of material fact as to whether Hicks harassed him because of his gender. Id. at 16 ("The record reflects no evidence that Hicks directed the remarks at Johnson because Johnson is a man.") Cf. Vandeventer, 887 F.Supp. at 1181 n. 2 ("while the epithet used ["dick sucker"] and the taunting had a 'sexual' component, as do most expletives, the crucial point is that the 'harasser' was not aiming expletives at the victim because of the victim's maleness"). Viewing the evidence in its entirety, the district judge concluded that "the facts of the fight ...