Merheb v. IL State Toll Highway Authority

• Decision Date: 03 October 2001
• Docket Number: No. 00-2547,00-2547
• Citation: 267 F.3d 710
• Parties: (7th Cir. 2001) Robert S. Merheb, Plaintiff-Appellant, v. Illinois State Toll Highway Authority, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 710

267 F.3d 710 (7th Cir. 2001)

Robert S. Merheb, Plaintiff-Appellant, v. Illinois State Toll Highway Authority, Defendant-Appellee.

No. 00-2547

In the United States Court of Appeals For the Seventh Circuit

Argued March 30, 2001

Decided October 3, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 3190--Charles R. Norgle, Sr., Judge.

Before Flaum, Chief Judge, and Posner and Evans, Circuit Judges.

Posner, Circuit Judge.

The plaintiff appeals from a grant of summary judgment in favor of his former employer, the Illinois tollway authority. His suit charged discrimination on the basis of his sex (male) and national origin (Lebanese), and also retaliation, under Title VII of the Civil Rights Act of 1964, as well as breach of contract under the common law of Illinois. Regarding the state law claim (for there is no Eleventh Amendment immunity to suits under Title VII, Fitzpatrick v. Bitzer, 427 U.S. 445, 448-49 (1976); Holman v. Indiana, 211 F.3d 399, 402 n. 2 (7th Cir. 2000)), our court held in Miller-Davis Co. v. Illinois State Toll Highway Authority, 567 F.2d 323, 327-31 (7th Cir. 1977), that the tollway authority is not entitled to the state's Eleventh Amendment immunity because it is not financed by the state. 605 ILCS 10/25. The Eighth Circuit later reached the opposite conclusion, but in a cursory analysis that mistakenly assumes that Illinois would pay a judgment against the tollway authority. Jackson Sawmill Co. v. United States, 580 F.2d 302, 308-09 (8th Cir. 1978).

Construed as favorably to the plaintiff as the record will permit, the facts are as follows. Merheb was employed by the tollway authority as an auditor. In 1996, alleging that a female supervisor had slapped him, he filed a charge of discrimination with the Illinois department of human rights. He settled the dispute kicked off by the charge in an agreement in which the authority promised him a new job. The agreement further states that "if [the tollway authority] deems that Robert Merheb has committed any infraction in his new position warranting discipline, only progressive discipline, as set forth in [the authority's employee manual] shall be used to correct the alleged improper behavior." The manual lists four types of discipline, in ascending order of severity: oral reprimands for minor infractions, written reprimands if oral ones fail to do the trick, suspension without pay if reprimands have failed "or the offense indicates more stringent corrective action," and discharge "when other corrective measures have failed or if the gravity of the offense warrants it." Ralph Wehner, the tollway authority's executive director, was aware of Merheb's charge of discrimination and was overheard to say that he was "working on getting rid" of Merheb. This was in July 1997, when Merheb started work in his new position.

His supervisor was Sharon Conrad. For the remaining six months of his employment, she "yelled at Merheb; shehumiliated, degraded and demoralized him in front of others on a constant basis" (we are quoting from his brief). "Although Conrad hardly knew Merheb, she was rude, impolite and unkind to him on a constant basis." She incited another employee to file a baseless claim of sexual harassment against Merheb for "staring," imitated his accent in a mocking fashion, and was excessively critical of his work. We may assume without having to decide that if this conduct actually occurred and was motivated by Merheb's sex or national origin, it would rise to the level of actionable harassment--harassment so severe as to make the conditions of his employment intolerable. See, e.g., Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cooke v. Stefani Management Services, Inc., 250 F.3d 564, 565-67 (7th Cir. 2001); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997); Fitzgerald v. Henderson, 251 F.3d 345, 350-51 (2d Cir. 2001); Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997); Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998). The closest case to this one is Fitzgerald, though it is distinguishable because the supervisor's abuse followed his unsuccessful attempts to obtain sexual favors from the plaintiff. The present case must be reckoned a close one in light of such cases as Webb v. Cardiothoracic Surgery Associates, 139 F.3d 532, 539 (5th Cir. 1998), and Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 962- 63 nn. 2-3, 966-67 (8th Cir. 1999). But all that is neither here nor there, for while the victim of actionable harassment would of course be entitled to damages, Merheb sought no relief for harassment until the appeal, which was too late. Cf. Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 n. 1 (7th Cir. 1994). His only complaint was about being discharged. The harassment is thus relevant only as background.

We move therefore to the circumstances of his discharge. After six months of torture by Conrad, Merheb blew his stack. Criticized by Conrad for a mistake, he became furious. According to several employees who were present, his face turned red, his eyes bulged and took on a "wild look," and he stood up and screamed in rage something to the effect that "If you don't do something about Sharon, I will." One of these employees feared that Merheb was about to "go postal." Another was sufficiently frightened to run to the department supervisor, Mark Swidergal, and tell him he had to do something. A visibly shaken Conrad cried and told a human relations officer, Susan Sinz, that she feared for her safety. Sinz believed her, having been on the phone with Merheb during the incident.

The outburst occurred on Friday. The following Monday, Sinz and Swidergal met with the authority's in-house counsel and Jim Wassell, Swidergal's supervisor, and they agreed that Merheb should be fired. Wehner--who remember was the tollway authority's executive director--approved their decision. The next day Merheb was fired for "gross insubordination, disrespectful conduct, [and] threatening behavior."

Merheb argues that the discharge broke the promise in the settlement agreement that any discipline meted out to him in his new position would be in accordance with the provisions of the employee manual governing progressive discipline. (This is his state law breach of contract claim.) But those provisions, which we quoted earlier, do not require in all cases climbing the first three steps on the ladder before reaching step 4, discharge. They would be insane if they did, for it would mean that if Merheb had killed Conrad he could have received only an oral reprimand, and if he had then killed Swidergal as well, only a written one. Contracts like statutes are not read literally when the result would be an absurdity. Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 712 (7th Cir. 1999); Level 3 Communications, Inc. v. Federal Ins. Co., 168 F.3d 956, 958 (7th Cir. 1999); Catalina Enterprises, Incorporated Pension Trust v. Hartford Fire Ins. Co., 67 F.3d 63, 66 (4th Cir. 1995); Wessels, Arnold & Henderson v. National Medical Waste, Inc., 65 F.3d 1427, 1436 (8th Cir....