Willie Jones v. Heartland Employment Services ( 2018 )


Menu:
  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted May 11, 2018 *
    Decided May 11, 2018
    Before
    DIANE P. WOOD, Chief Judge
    DANIEL A. MANION, Circuit Judge
    ILANA DIAMOND ROVNER, Circuit Judge
    No. 17-2519
    WILLIE E. JONES,                              Appeal from the United States District
    Plaintiff-Appellant,                     Court for the Central District of Illinois.
    v.                                      No. 16-2004
    Colin S. Bruce,
    HEARTLAND EMPLOYMENT                          Judge.
    SERVICES, LLC,
    Defendant-Appellee.
    ORDER
    Willie Jones sued his former employer, Heartland Employment Services, for
    defamation under Illinois law, and sexual harassment and retaliation under Title VII of
    the Civil Rights Act of 1964. The district court entered summary judgment for
    Heartland. Because a reasonable factfinder could not conclude that the events on which
    *
    We have agreed to decide this case without oral argument because the briefs
    and record adequately present the facts and legal arguments, and oral argument would
    not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
    No. 17-2519                                                                           Page 2
    Jones bases his suit were defamatory, created a hostile work environment, or were
    unlawfully retaliatory, we affirm.
    Jones, an African-American man who worked as a cook and as an aide at a
    nursing home staffed by Heartland, complains of three problems. We describe the
    evidence for each one in the light most favorable to Jones, beginning with what Jones
    calls defamation. Jones overheard his supervisor say about him: “He doesn’t like white
    people. That’s why we keep having trouble with him.” Jones argues that the remark,
    which implied that he was a racist, hurt his reputation, but he supplied no evidence of
    reputational harm. The second issue regards his work environment. A female client at
    the nursing home once told him that she had a crush on him, asked if he was married,
    invited him to her room, and tried to touch him. Jones reported the conduct, which he
    views as sexual harassment, and he says that Heartland did not respond. The last issue
    is retaliation. In August 2015 Jones filed a charge with the Equal Employment
    Opportunity Commission for race and sex discrimination and retaliation. Then, over the
    next five months, he had the following troubles at work: Coworkers threw out food that
    he cooked and told him how “to do things.” His supervisor twice used a “nasty” and
    loud voice when speaking to him. He received disciplinary written warnings for,
    according to Heartland, storing his watch in a pan of rice and refusing to wash dishes,
    among other tasks. Last, compared to others, he received fewer scheduled overtime
    hours during a holiday.
    The district court entered summary judgment in favor of Heartland. Relying on
    Stevens v. Tillman, 
    855 F.2d 394
    (7th Cir. 1988), the judge said that being called “racist”
    was not defamatory. The workplace was not unlawfully hostile, the judge also
    concluded, and the “retaliatory” actions were not materially adverse or caused by his
    EEOC charge.
    Heartland asks us to dismiss Jones’s appeal under Federal Rule of Appellate
    Procedure 28(a). But Jones’s opening brief engages with the district court’s order while
    citing legal authorities. We construe his filings liberally and will address the discernible
    arguments. See Parker v. Four Seasons Hotels, Ltd., 
    845 F.3d 807
    , 811 (7th Cir. 2017).
    Jones first argues that his supervisor’s comment (“he doesn’t like white people”)
    supports a claim of defamation. We will assume that the supervisor implied that Jones
    is racist, and that Stevens, on which the district court relied to reject Jones’s claim, does
    not apply. In Stevens we concluded that when the president of a parent-teacher
    association used the “verbal slap” of calling a principal “racist,” the principal (the target
    No. 17-2519                                                                           Page 3
    of the “slap”) had no defamation claim because he could “slap 
    back.” 855 F.2d at 402
    .
    But Jones, as a subordinate, could not “slap back” against his supervisor without
    adverse consequences. See Taylor v. Carmouche, 
    214 F.3d 788
    , 793 (7th Cir. 2000).
    Nevertheless, Jones cannot survive summary judgment because he presented no
    evidence that the comment harmed his reputation. Defamation under Illinois law is
    either “per quod” or “per se.” Defamation per quod requires a plaintiff to show
    reputational harm from the statements. Pippen v. NBCUniversal Media, LLC, 
    734 F.3d 610
    ,
    612–13 (7th Cir. 2013). Jones has no proof of such harm, so he must show that the
    comments were defamatory per se—so egregious that they are actionable without proof
    of injury. 
    Id. at 613.
    Jones does not argue that any of the five categories of defamation
    per se apply to him, and after examining those categories ourselves, we conclude that
    none applies. Indeed, the supervisor’s statement described Jones’s character, and
    Illinois does not hold defendants liable under defamation per se for statements about a
    plaintiff’s character, including the ability to work in harmony with others. See Cody v.
    Harris, 
    409 F.3d 853
    , 858 (7th Cir. 2005) (citing Heying v. Simonaitis, 
    466 N.E.2d 1137
    ,
    1143 (Ill. App. Ct. 1984)).
    We turn to Jones’s claim of a sexually hostile work environment. An employer
    can be liable under Title VII for harassment of an employee by a client. Erickson v. Wis.
    Dep't of Corr., 
    469 F.3d 600
    , 605 (7th Cir. 2006). But liability depends on the “the severity
    of the allegedly discriminatory conduct, its frequency, whether it is physically
    threatening or humiliating or merely offensive, and whether it unreasonably interferes
    with an employee’s work performance.” Overly v. KeyBank Nat’l Ass'n, 
    662 F.3d 856
    , 862
    (7th Cir. 2011) (quoting Scruggs v. Garst Seed Co., 
    587 F.3d 832
    , 840 (7th Cir. 2009)). Jones
    asserts that a client once said that she had a crush on him, asked if he was married,
    invited him to her room, and tried to (but did not) touch him. These occurrences are not
    actionable because they were not frequent, physical, or severe. See Faragher v. City of
    Boca Raton, 
    524 U.S. 775
    , 788 (1998); 
    Overly, 662 F.3d at 862
    (ruling no harassment claim
    when supervisor called plaintiff “cutie” five to ten times over two months); Moser v. Ind.
    Dep't of Corr., 
    406 F.3d 895
    , 902–03 (7th Cir. 2005) (same when coworker referred to
    plaintiff’s “tits,” commented on female job applicants’ physical appearance, made
    innuendo about penis size, and said that female coworker “just needed a good f* * *”);
    Savino v. C.P. Hall Co., 
    199 F.3d 925
    , 933 (7th Cir. 1999) (noting that “sporadic use of
    abusive language, gender-related jokes, and occasional teasing” is not actionable
    harassment).
    No. 17-2519                                                                            Page 4
    Jones also argues generally that Heartland retaliated against him because he filed
    an EEOC charge in August 2015. But as the district court correctly noted, Jones
    presented only a chronology of events with his coworkers and supervisors during the
    five months after he filed that charge. He supplied no evidence that they knew about
    the charge, let alone that the charge motivated their conduct. Moreover “‘suspicious
    timing alone is insufficient’ to support a Title VII retaliation claim.” Leonard v. E. Ill.
    Univ., 
    606 F.3d 428
    , 433 (7th Cir. 2010) (quoting Turner v. The Saloon, Ltd., 
    595 F.3d 679
    ,
    687 (7th Cir. 2010)). The district court therefore properly concluded that Jones had not
    shown that his coworkers’ and supervisors’ actions were in response to his EEOC
    charge. See Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park, 
    490 F.3d 558
    , 563 (7th Cir. 2007).
    One final matter: In the district court Jones pursued a race-discrimination claim
    based on the same events that we have discussed. But he does not press this issue in his
    appellate briefs, and so he has waived that claim. See Bernard v. Sessions, 
    881 F.3d 1042
    ,
    1048 (7th Cir. 2018).
    AFFIRMED