There are several lessons in this Seventh Circuit decision, reviewing a summary judgment and jury verdict in a Title VII and § 1983 case involving state university police officers. First, the court continues to consider the use of the N-word in the workplace to be virtually per se racial harassment. Second, the filing of false reports against an employee may be deemed a materially adverse action, for purposes of retaliation. Third, even if the law mandates strict liability against an employer for retaliation by a supervisor, the jury must still be instructed on the theory or it may be waived.
Robinson v. Perales, Nos. 16-2291 and -3390 (7th Cir. July 2, 2018): Two security officers – Robinson and Spangler – sued the university and an individual supervisor named Perales under theories of Title VII and § 1983 racial harassment, discrimination and retaliation. Only one of the officer’s (Robinson’s) claims, for retaliation, went to trial and the jury awarded $1 nominal damages.
Events were triggered by Robinson (identified as biracial) seeking an exemption from the shaving requirement owing to folliculitis, a skin condition specific to Black men. Perales, Robinson’s supervisor, admitted in his deposition that he used the N-word during one of his conversations with Robinson about the topic. It was supposedly to allay Robinson’s concern that the investigation into his request was racially motivated. Perales, who identified himself as Hispanic, said that he was not like the old-school, “good-old-boy” officers who used that word.
Nevertheless, weeks later when Robinson told Perales about the pain and scarring that he suffered from shaving, Perales responded, “[O]h, yeah, I see it, it must be the n‐‐‐‐r in you.” Robinson grieved this use of the n-word with his union and Perales was eventually suspended for twenty days. Upon Perales’s return, he began to impose tighter scrutiny on Robinson, even asking watch commander Spangler to “go against” Robinson and his partner and “get some s–t on them and write them up.” Spangler refused, and was later the subject of two unfounded notices of infraction and a demotion.
Robinson and Spangler jointly filed a multi-count lawsuit. The district court tossed out all claims on summary judgment except for Robinson’s retaliation claim against Perales and the university trustees. The jury returned a verdict for the university, but against Perales, though only awarding nominal damages.
On cross-appeals, the Seventh Circuit affirms the jury verdict (and denial of attorney’s fees) but reverses summary judgment on two claims and remands for trial.
First, Robinson appealed summary judgment on his hostile work environment claim for the instances when Perales used the N-word. While the district court held that “a few instances of the use of this particular epithet were not significant enough,” the panel disagrees. Supervisor “Perales’s multiple uses of the word n‐‐‐‐r in combination with his heightened scrutiny of Robinson and his call to others to take action against Robinson are sufficient to create a triable issue for a jury on whether the harassment was severe or pervasive enough to constitute a hostile work environment.” In particular, with citation to circuit caselaw, “this particular epithet can have a highly disturbing impact on the listener,” which was increased because the declarant “was a supervisor with direct authority over” the plaintiff.
The panel rejects the argument that the impact of the N-word was mitigated because the supervisor was simply quoting other officers and personally disaffirmed such slurs. “Perales’s speech to Robinson employed apophasis, the rhetorical device of denying one’s intention to speak of a subject that is at the same time mentioned or insinuated …. In other words, Perales denied that he was racist or that he used words like ‘n‐‐‐‐r’ by using the highly objectionable term multiple times as part of his purported denial.” And Perales reportedly used the slur again weeks later in reference to Robinson seeking an exemption from shaving, plus allegedly ordered increased scrutiny on the plaintiff and solicited false charges. Whether or not the totality of circumstances created a hostile work environment should be weighed by a jury, holds the panel, not construed in the defendant’s favor on summary judgment.
Second, Spangler appealed summary judgment on his own retaliation claim, for refusing what he considered to be an illegal order to write-up false charges against Robinson and his partner:
“The very next day, Hersey served an unfounded Notice of Infraction on Spangler. Two months later, Perales issued Spangler another unfounded Notice of Infraction. Although both charges were ultimately dropped…., Spangler was soon demoted from his position as watch commander, ‘not down to the alternate watch commander but all the way down to street sergeant.’ Spangler had been a watch commander for four years at that point. The demotion reduced Spangler’s pay rate.”
The district court held that Spangler must lose because another officer, Cappitelli, “alone made the decision to demote Spangler, and that Cappitelli was not aware that Spangler had engaged in protected activity.” Who made the decision was a contested issue of fact, but the district court excluded Perales’s own admission as hearsay. This was error, holds the panel:
“Federal Rule of Evidence 801(d)(2)(A) provides that a statement is not hearsay if the ‘statement is offered against an opposing party and … was made by the party in an individual or representative capacity’ …. Both elements are easily met here. Perales is a party and he purportedly made the statement to Spangler. Spangler now offers Perales’s statement against Perales. That is sufficient to create a genuine issue of material fact regarding who made the decision.”
Moreover, Cappitelli conceded that he consulted Perales before deciding to demote Spangler,” which – even without the admission – was enough to create a genuine dispute of material fact on a “cat’s paw” theory. “Whether Perales made the decision to demote Spangler directly as he admitted to Spangler, or by duping Cappitelli into doing the deed for him, Perales clearly was aware that Spangler had engaged in protected activity, and Perales arguably had a retaliatory motive.” The record also established temporal proximity, the first write-up coming just one day after Spangler refused the supposedly illegal order.
Third, the panel affirms the denial of judgment as a matter of law for Perales at trial. Perales tried arguing that “mere heightened scrutiny does not meet the standard for a materially adverse action,” but the panel affirms the district court’s conclusion “this was not simply a case of heightened scrutiny applied to the employee’s performance. The jury was entitled to believe evidence that ‘Perales actively planned to damage or perhaps even end Robinson’s career as a UIC police officer and that he attempted to enlist others in that effort.'”
Fourth (though actually discussed at the top of the opinion), Robinson appealed what he considered to be an inconsistent verdict finding Perales but not the university trustees liable for retaliation. Under standard principles of § 1983 liability, Perales action was directly attributable to the university, which was in turn should have been strictly liable for his actions. Regrettably, though, the jury was not instructed on strict liability and thus there was no basis in the jury charge for the jury to attribute Perales’s actions to the university. The fault lay instead, holds the panel, with plaintiff’s counsel failing to object to the absence of such an instruction … even when “the jury sent out a note asking about this very issue.”
Finally, the panel affirms the denial of attorney’s fees to Robinson’s lawyer for the trial. Despite that Robinson was the prevailing party, the district court was within its broad discretion to deny fees based on the limited outcome. “Compared to the amounts Robinson sought at trial, this was a negligible recovery, the court concluded, and not worthy of an award of fees. That the jury absolved the Board suggested to the district court that this was a mere personal victory without any accompanying public benefit.”