The Seventh Circuit decides a couple of useful things in this Title VII and § 1983 national-origin discrimination, harassment, and retaliation case, set in a City of Chicago firehouse. First, it holds that even petty activity such as lunch-stealing may constitute part of a hostile work environment when the entire pattern of conduct is considered together. Second, even such tedious activities as constantly shifting an employee from site to site, and intensively challenging fitness for duty after medical leave, may constitute materially adverse employment actions.
Alamo v. Bliss, No. 15-2849 (7th Cir. July 20, 2017): plaintiff Alamo joined the Chicago Fire Department as an officer in 2006. In 2009, he was assigned to a firehouse (where his complaint alleged) he suffered harassment from the other firefighters:
“[They] began verbally and physically harassing him. The complaint asserts that firefighters called him ‘spic’ and ‘f–king Puerto Rican.’ It also describes incidents involving firefighters stealing Mr. Alamo’s forod or throwing his forod away. This treatment began in 2009 and ‘continu[ed] throughout 2010 and 2011.'”
The hostility allegedly escalated to physical threats and shoving:
“Captain Stefan, a captain on a different truck from Mr. Alamo’s, woke Mr. Alamo up [in the firehouse break room], yelled profanities at him, and stated, ‘I don’t like your kind, you better put in a transfer and get out of this firehouse because I don’t want you here.’ Captain Stefan then chest bumped Mr. Alamo, used more profanity, and threatened further physical violence.”
Complaints to fire-department brass, even a 911 call to city police in response to the physical threats, were allegedly to no avail.
Officer Alamo’s complaints were also allegedly met with retaliation. These reprisals allegedly included (1) repeated and escalating requests for documentation when Officer Alamo returned to duty from medical leave, which delayed his return and caused his pay to be suspended; and (2) excessive “detailing,” being shifted from firehouse to firehouse. The plaintiff also claimed that these activities constituted national-origin discrimination, because white officers were not treated similarly.
The district court granted summary judgment, holding that the allegations of harassment were not “severe or pervasive” as a matter of law, and that the allegations of retaliation and harassment did not identify materially adverse actions.
The Seventh Circuit reverses on all three claims: harassment, discrimination, and retaliation.
On the harassment, the panel holds that the district court erred in holding that the behavior was not “severe or pervasive” as a matter of law, based on the complaint alone. The complaint alleged the use of racial slurs, hostile physical contact, and threats of violence, which may certainly be part of a hostile work environment. Moreover, even seemingly minor activity can fuel the hostility:
“The complaint also makes clear that these slurs were just part of the harassment that Mr. Alamo faced. The complaint also alleges that Mr. Alamo notified Battalion Chief Annis and Lieutenant Bliss of ‘several incidents’ of his forod being thrown out of the fridge or being stolen by co-workers. The defendants characterize these allegations as the sort of ‘trivial’ incidents not covered by Title VII. But that misunderstands the Supreme Court’s standard, which requires that we consider the totality of Mr. Alamo’s factual allegations and the work environment in which they happened.”
The panel particularly notes that such behavior, taking place where the officers both live and work, could degrade “unit cohesion” vital to firefighting. It also notes that an incident that took place just 24 hours before the plaintiff took medical leave might count as part of the hostile work environment, as “it was far too premature for the district court to conclude that the City could not have taken remedial action.”
On the discrimination (as well as the retaliation) claim, the panel holds that the “detailing” allegations plausibly state a materially adverse action. Although it did not result in a loss of pay or position, it did affect Officer Alamo in other ways:
“We believe that it is premature to conclude that excessively ‘detailing’ Mr. Alamo did not result in an adverse employment action. When evaluated in context with Mr. Alamo’s other allegations, these assignments can be construed as a tool to marginalize or stigmatize Mr. Alamo within the Department. It also may be that being ‘detailed’ made it difficult for Mr. Alamo to continue to perform his job at the same level, or may impact Mr. Alamo’s long-term career prospects. We Therefore conclude that, in the context of this case, the allegations regarding excessive ‘detailing’ plausibly state an adverse employment action.”
The allegations of delaying his return from medical leave, in addition to temporarily costing him income, also could be held to be materially adverse:
“He claims that ‘[f]or each [hurdle] he cleared, a new one appeared, more onerous than the last.’ Such a pattern, Mr. Alamo asserts, is consistent with making compliance impossible, and differentiates these allegations from what otherwise might have been a legitimate investigation into Mr. Alamo’s medical fitness. The complaint also clearly connects this treatment to Mr. Alamo’s protected status, claiming that ‘other, non-Latino firefighters have not been subjected’ to these types of ‘hurdles, obstacles, and challenges in their attempts to return to work after a medical leave of absence.'”
Based on the substantiality of these allegations, dismissal of the complaint was “shortsighted.”
Finally, on the retaliation claim, the panel holds that Officer Alamo plausibly alleged causation between his complaint to the police and the adverse treatment, despite a gap in time caused by the intervening medical leave:
“Here, the complaint sets forth good reason for the gap between the report and the allegedly retaliatory conduct: between the incident with Captain Stefan and the onerous process to return to work, Mr. Alamo was on medical leave from his position due to injuries inflicted by Captain Stefan. In other words, it was not until Mr. Alamo attempted to return to the Chicago Fire Department, when his medical leave was about to expire, that the Department had its first opportunity to retaliate against him for reporting the incident with Captain Stefan.”