Date: 08-07-2018

Case Style:

Case Number: 17-2626

Judge: Barrett

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Joseph Longo

Defendant's Attorney: Joshua David Holleb, Steven Mena Dallas, William D. Dallas, Peter G. Frezados, Davi Lynn Hirsch

Description: Robert Smith worked behind the
meat counter at Rosebud Farm, a local grocery store. After
several years of ongoing sexual and racial harassment from
his male coworkers and supervisor, Smith sued Rosebud. He
claimed various violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 1981, and the Illinois Gender Violence Act.
2 No. 17‐2626
The jury returned a verdict for Smith. Rosebud appeals, maintaining
that the district court erred in denying its motions for
judgment as a matter of law and a new trial.
Rosebud argues that it was entitled to judgment as a matter
of law on Smith’s Title VII sex discrimination claim. To
win, Smith had to show more than unwanted sexual touching
or taunting; he had to show that the harassment occurred because
of his sex. Rosebud contends that Smith’s evidence
demonstrates that the other men in the shop engaged in “sexual
horseplay,” not sex discrimination. But Rosebud is wrong
about that: the evidence supports the inference that Smith’s
coworkers harassed him because he was male. The shop was
a mixed‐sex workplace, and only men were groped and
taunted. Because men were treated differently from women
at Rosebud, a reasonable jury could conclude that Smith was
tormented because of his sex.
Rosebud also insists that the district court should have
awarded it judgment as a matter of law on Smith’s § 1981 retaliation
claim and granted a new trial because of inflammatory
statements that Smith’s counsel made during his closing
argument. But Rosebud did not raise either of these arguments
below, so it has forfeited them. Its challenges to the
judgment uniformly fail.
I.
In 2003, Robert Smith began working as a butcher at Rosebud
Farm, a small grocery store on the south side of Chicago.1
Smith had been on the job for less than three weeks when his
1 Because the jury returned a verdict in Smith’s favor, we construe all
facts and reasonable inferences in the light most favorable to him.
Hertzberg v. SRAM Corp., 261 F.3d 651, 661 (7th Cir. 2001).
No. 17‐2626 3
male coworkers behind the meat counter began harassing him
by grabbing his genitals and buttocks. Over the next four
years, that behavior was consistent, if not constant. At trial,
Smith recalled the many times his coworkers groped him,
grabbed him, and even reached down his pants. They repeatedly
mimed oral and anal sex, both on Smith and on each
other. Carlos Castaneda, Smith’s supervisor, not only knew
about the harassment, but he even participated once or twice.
And the group did not stop at aggressive sexual contact—
they also targeted him for his race, using racial epithets and
telling him “go back to Africa.”
Smith complained about the sexual harassment multiple
times to no avail. In January of 2008, he decided that enough
was enough. He filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) and
the Illinois Department of Human Rights, alleging that his
coworkers had sexually harassed him. He also claimed that
Castaneda had discriminated against him based on his race
by giving him fewer weekly work hours and sending him
home for nine days without pay.
When Castaneda received notice of the discrimination
charges, he told the meat‐counter employees to stop “goofing
off” and quit the “horseplay.” Smith’s coworkers changed
their behavior after their meeting with Castaneda, but not for
the better. Behind the meat counter, they banged their cleavers
menacingly at him and passed by him with large knives
pointing out of the meat trays they carried. Smith found his
car—which he parked in the gated, employee‐only lot—with
slashed tires and a cracked windshield. Smith became increasingly
frightened at work, and he quit his job in June 2008 because
of the “intolerable” working conditions.
4 No. 17‐2626
After the EEOC issued him a Notice of Right to Sue, Smith
brought a host of claims against Rosebud and its employees,
seeking compensatory and punitive damages, as well as attorneys’
fees and costs. Four of Smith’s claims went to trial: sex
discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.; race discrimination under 42
U.S.C. § 1981; retaliation under both statutes; and violations
of the Illinois Gender Violence Act, 740 ILCS 82/1, by two
Rosebud employees, including the general manager, Carlos
Castaneda.2 The jury returned a verdict for Smith on all
claims.3
Rosebud raises three issues on appeal. It claims that the
district court should have granted it judgment as a matter of
law on the sexual harassment claim, because Smith failed to
prove that his male coworkers discriminated against him because
of his sex. It argues that it was also entitled to judgment
on the § 1981 retaliation claim: according to Rosebud, there
was no evidence that Smith’s coworkers knew that he had
filed charges of racial discrimination against Rosebud; thus,
they could not have retaliated against Smith for filing them.
Finally, Rosebud complains that the district court should have
2 Smith’s other claims were resolved prior to trial in favor of the defendants.
3 The jury awarded Smith a total of $2,407,500 ($2,250,000 against
Rosebud). Because of Title VII’s statutory damages caps and the excessive
nature of the award, the district court reduced the jury’s total award to
$470,000, $462,500 of which was against Rosebud. The court also awarded
equitable relief under Title VII and § 1981, granting Smith $69,761.80 in
back pay and $19,894.77 in prejudgment interest. Rosebud appeals only
the Title VII sex discrimination claims and the § 1981 retaliation claim. The
claims of the individual defendants are not on appeal.
No. 17‐2626 5
granted it a new trial when Smith’s counsel compared Rosebud’s
employees to terrorists in his closing argument.
II.
Smith’s Title VII claim charged his male coworkers and
male supervisor with creating a hostile work environment by
severely and pervasively harassing him because of his sex. See
Vance v. Ball State Univ., 570 U.S. 421, 427 (2013) (defining a
“hostile work environment” under Title VII as one “so pervaded
by discrimination that the terms and conditions of employment
were altered”). Rosebud does not dispute that
Smith introduced evidence sufficient to show that its employees
severely and pervasively harassed him with the
knowledge of the store’s general manager. But Title VII does
not impose a flat ban on all harassment. Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998). It prohibits harassment
that discriminates against an individual “because of
such individual’s … sex.” 42 U.S.C. § 2000e–2(a)(1). And
Rosebud contends that Smith did not prove that its employees
harassed Smith because he was male. According to Rosebud,
no rational jury could have concluded that the harassment
was discriminatory; thus, the district court should have
granted its Rule 50 motion for judgment as a matter of law.
Rosebud relies on Shafer v. Kal Kan Foods, Inc., 417 F.3d 663
(7th Cir. 2005) and Lord v. High Voltage Software Inc., 839 F.3d
556 (7th Cir. 2016), both of which involved plaintiffs who
failed to prove that the same‐sex harassment they experienced
was discriminatory. In Shafer, the plaintiff’s male
coworker told him that he had “a ‘cheerleader ass’ that
‘would look real nice on my dick.’” Shafer, 417 F.3d at 665. On
one occasion, the coworker shoved Shafer’s face into his
clothed crotch and forcibly simulated oral sex. Id. On another,
6 No. 17‐2626
he yanked Shafer’s hand, placed it on his crotch, and
“moan[ed] as if Shafer were masturbating him.” Id. There
were two other incidents: the coworker seized a handful of
Shafer’s chest hair in the locker room and later bit Shafer’s
neck. Id. We held that the plaintiff was the victim of “four batteries,”
at the hands of his male colleague, not sex discrimination.
Id. at 666.4 Shafer failed to establish “that working conditions
at [his workplace] were worse for men than for
women”; indeed, the evidence reflected that “[the offending
coworker] picked on anyone of either sex he could get away
with tormenting.” Id. Without further evidence of discriminatory
behavior, the aggressive encounters with his coworker
reflected no more than “personal animosity or juvenile behavior.”
Id. The unwanted sexual contact was “dramatic,” id. at
665, and grounds for bringing a state tort claim, id. at 667, but
it did not constitute discrimination on the basis of sex. Id. at
665–66.
Lord also involved sexually tinged harassment of a male
plaintiff by male coworkers. In Lord, the plaintiff brought a
Title VII suit complaining that his male coworkers had poked
and slapped him on the buttocks, reached between his legs,
and teased him about a female coworker whom they thought
he liked. Lord, 839 F.3d at 560. But to prove that his coworkers
had discriminated against him because of his sex, Lord “relie[
d] entirely” on the fact that this behavior had “sexual overtones.”
Id. at 562. As in Shafer, we held that sexual touching
4 The plaintiff in Shafer also failed to show that any discrimination was
by his employer rather than his coworker. Id. at 665 (“Shafer encounters
difficulty with both the ‘discrimination’ branch and the ‘by the employer’
branch.”) In Smith’s case, the only issue is whether the harassment was
discriminatory.
No. 17‐2626 7
and taunting was not enough, standing alone, to prove that
the plaintiff had been harassed because he was male. Id. at
561–62.
Rosebud contends that Smith’s claim resembles those
pressed by the plaintiffs in Shafer and Lord. It emphasizes
Shafer’s distinction between “sexual horseplay” and “sex discrimination”
and insists that Smith experienced the former,
not the latter. Shafer, 417 F.3d at 666 (“Sexual horseplay differs
from sex discrimination.”). To support its argument, Rosebud
points out that quarters were tight behind the meat counter,
and the butchers often bumped into each other during the
workday. Smith’s coworkers testified that they frequently
teased and touched each other—not just Smith—and that they
often did so in front of others. Rosebud says that this demonstrates
that the meat counter culture was one of sexual roughhousing,
not sex discrimination.
Rosebud is correct that that unwanted sexual behavior—
including the touching of genitals and buttocks—is not necessarily
actionable under Title VII. Oncale, 523 U.S. at 80 (“We
have never held that workplace harassment, even harassment
between men and women, is automatically discrimination because
of sex merely because the words used have sexual content
or connotations.”); Shepherd v. Slater Steels Corp., 168 F.3d
998, 1009 (7th Cir. 1999) (“[T]he sexual content or connotations
of workplace harassment do not automatically render
that conduct sex discrimination.”). Shafer and Lord mark an
important boundary line: Title VII is an anti‐discrimination
statute, not an anti‐harassment statute.
But Smith, in contrast to the plaintiffs in Shafer and Lord,
introduced evidence that the harassment was discriminatory.
8 No. 17‐2626
Neither Shafer nor Lord offered any proof that the unwelcome
sexual touching was discrimination based on sex, including
any evidence that men in the workplace were treated
differently from women. Shafer, 417 F.3d at 666; Lord, 839 F.3d
at 562. Smith, on the other hand, offered direct comparative
evidence that only men, and not women, experienced the
kind of treatment that he did at Rosebud. See Oncale, 523 U.S.
at 80–81 (“A same‐sex harassment plaintiff may also … offer
direct comparative evidence about how the alleged harasser[
s] treated members of both sexes in a mixed‐sex workplace.”).
Ample testimony—from both Smith and other witnesses—
established that only men were groped, taunted, and
otherwise tormented. Witnesses recounted the numerous
times they saw men grabbing the genitals and buttocks of
other men. No witness recalled seeing female Rosebud employees
subjected to the same treatment. Because Smith introduced
evidence that his coworkers only harassed male employees,
the jury was free to conclude that these men discriminated
against him on the basis of sex. See also Quick v. Donaldson
Co., Inc., 90 F.3d 1372, 1378 (8th Cir. 1996) (finding that
evidence showing only men were the targets of sexual harassment
could support an inference of sex discrimination).
Rosebud argues that this direct comparative evidence is
insufficient because only male employees worked behind the
meat counter. If Smith worked in an all‐male environment, the
fact that only men were touched and groped would not raise
an inference of sex discrimination. But Smith did not work in
an all‐male environment—Rosebud was a mixed‐sex workplace
where men and women interacted daily. According to
Castaneda, Rosebud employed approximately 6–7 women
and 15–16 men in its small store. See Smith v. Rock–Tenn Servs.,
No. 17‐2626 9
Inc., 813 F.3d 298, 308 (6th Cir. 2016) (concluding that a workplace
with 30% female employees was not gender‐segregated).
Female employees sometimes worked in the meat department
when the shop was busy; they also brought orders
and returned items to the meat counter. And even if the allmale
meat counter had been segregated from the rest of the
store, that was not the only place where male‐on‐male sexual
harassment occurred—men also groped and harassed each
other in the stock room and produce section. Because men
worked alongside women at Rosebud and only men were harassed,
a reasonable jury could conclude that Smith’s coworkers
would not have tormented him if he had been female.
III.
Rosebud next asserts that no rational jury could have
found for Smith on his 42 U.S.C. § 1981 retaliation claim. Section
1981 protects the right of all persons, regardless of race,
to “make and enforce contracts.” This protection encompasses
retaliation claims when an employer takes an adverse
employment action against an employee for asserting rights
protected by § 1981. CBOCS West Inc. v. Humphries, 553 U.S.
442, 446 (2008); Tank v. T–Mobile USA, Inc., 758 F.3d 800, 807
(7th Cir. 2014). Smith alleged that his coworkers retaliated
against him after he reported race discrimination to the EEOC
by making his working conditions so intolerable he that was
forced to quit. That, he said, constituted a “constructive discharge”
and therefore an adverse employment action under §
1981. Rosebud argues, however, that no retaliation could have
occurred because there was no evidence that Smith’s coworkers
knew that he had filed a charge of racial discrimination. If
they didn’t know about it, Rosebud says, they could not have
retaliated against him for it.
10 No. 17‐2626
Rosebud has forfeited this argument. To preserve a sufficiency‐
of‐the‐evidence challenge for appeal, a party moving
for judgment as a matter of law must “specify the judgment
sought and the law and facts that entitle the movant to judgment.”
Fed. R. Civ. P. 50(a)(2); see also Empress Casino Joliet
Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 823–24 (7th Cir.
2016) (citing Ortiz v. Jordan, 562 U.S. 180, 189 (2011)). Rosebud’s
motion for judgment as a matter of law under Rule 50(a)
and its renewed motion under Rule 50(b) focused exclusively
on whether Smith’s decision to quit amounted to a constructive
discharge. Neither motion made any reference to the argument
Rosebud makes now: that a rational jury could not
have concluded that Smith’s coworkers retaliated against him
for filing a claim of race discrimination, because there was no
evidence that they knew about the claim. Rosebud’s failure to
challenge the sufficiency of the evidence on this ground at
trial precludes our review of the argument it asserts on appeal.
IV.
In a last‐ditch effort to disrupt the verdict, Rosebud argues
that it is entitled to a new trial because of inflammatory statements
that Smith’s counsel made during his closing argument.
Counsel referenced a then‐recent mass shooting in the
United States and stated “In the Middle East terrorists have
murdered tens of thousands of people creating chaos in countries
not having the order of law. A country that does not have
laws to protect the common good breeds anarchy.” He then
drew a comparison to Rosebud, calling it a “company that
breeds anarchy.” Rosebud claims that this comparison was so
unfairly prejudicial that the district court abused its discretion
in denying its motion for a new trial.
No. 17‐2626 11
The district court did not abuse its discretion, because
Rosebud did not raise this objection during counsel’s closing
argument. Rosebud raised two objections to counsel’s reference
to terrorism. It first complained that counsel’s statements
were “beyond the scope” and later protested that counsel was
appealing to “social science research … not in the record.” It
did not, however, object on the ground that the statements
were prejudicial. Rosebud therefore forfeited this objection.
Hamdan v. Indiana Univ. Health N. Hosp., Inc., 880 F.3d 416, 422
(7th Cir. 2018).
In any event, Rosebud lost little by forfeiting the objection.
Improper statements made during closing arguments seldom
warrant a new trial, Soltys v. Costello, 520 F.3d 737, 745 (7th Cir.
2008), and this is not one of the rare cases in which they do. If
anything, the counsel’s comments hurt Smith more than they
hurt Rosebud. The district court observed a number of jurors
grimacing in reaction to the bizarre terrorism analogy. These
references would certainly not have been reason for the district
court to set aside the jury’s verdict and start over.
***

Outcome: All three of Rosebud’s challenges fail, and the judgment of
the district court is AFFIRMED.

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