Johnson, Kevin M. v. ITT Aerospace ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2708
Kevin M. Johnson,
Plaintiff-Appellant,
v.
ITT Aerospace/Communications
Division of ITT Industries, Inc.,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 99 C 84--Roger B. Cosbey, Magistrate Judge.
Submitted January 23, 2001--Decided November 29, 2001
Before Posner and Easterbrook, Circuit
Judges./1
Posner, Circuit Judge. The plaintiff in
this Title VII case appeals from a series
of pretrial rulings that resulted in
judgment for his employer. In a unit of
eight or ten employees assembling radio
amplifiers, Johnson was the only male and
also the only American Indian. He
contends (we must assume, for purposes of
the appeal, truthfully) that during a
period of two weeks prior to September 8,
1998, some of his coworkers made fun of
his ethnicity by speaking to each other
in a stereotypical Indian manner. There
was a crescendo of this talk on September
8 that resulted in a shouting match
between Johnson and one of the women. The
two complained about each other to the
company’s human resources department,
which warned both of them that they would
be disciplined if there were further
incidents. There were none. The
contention that the company is guilty of
ethnic harassment is frivolous. Even if,
as we greatly doubt, the offensive and
gratuitous mockery of Johnson’s ethnicity
reached the degree of severity at which
it could be said to have altered his
working conditions, Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993),
the company, as soon as it was apprised
of the situation, took prompt and
entirely effective measures to stop it,
thus discharging its legal duty. E.g.,
Berry v. Delta Airlines, Inc., 260 F.3d
803, 813 (7th Cir. 2001); Tutman v. WBBM-
TV/CBS, Inc., 209 F.3d 1044, 1048 (7th
Cir. 2000); Watts v. Kroger Co., 147 F.3d
460, 465-66 (5th Cir. 1998).
More interesting, though not more
meritorious, is Johnson’s challenge to
the company’s attendance policy, which
contains an exception for absences that
are due to the employee’s being ordered
by a court "to appear as a witness (not
a party)." Johnson was assessed two
unexcused absences for days on which he
attended a preliminary pretrial
conference, and gave his deposition, in
this very suit. No discipline was imposed
for these absences, and after Johnson
complained through his union about the
lack of an exception for absences
required for the prosecution of a suit by
an employee against the employer, the
policy was amended to add such an
exception. Johnson seeks no relief; but
he wanted to amend his complaint to add a
challenge to the pre-amended policy as
being (1) a form of retaliation against
persons who file Title VII claims and (2)
a form of "disparate impact"
discrimination against Title VII
claimants, so that he can claim that, as
the catalyst of the policy change, he is
entitled to attorneys’ fees.
He is too late. The Supreme Court has
rejected the "catalyst" ground for
obtaining attorneys’ fees under fee-
shifting provisions, such as that of
Title VII, that limit the award of fees
to a "prevailing party" in the
litigation. Buckhannon Board & Care Home,
Inc. v. West Virginia Dept. of Health &
Human Services, 121 S. Ct. 1835 (2001);
see 42 U.S.C. sec. 2000e-5(k). But even
in the heyday of the catalyst theory,
when a defendant could not, simply by
abandoning an unlawful practice in
response to a lawsuit actual or
threatened, deprive the plaintiff, actual
or would-be, of a right to obtain
attorneys’ fees for having brought about
the abandonment of the practice, the
practice had to be unlawful; otherwise
the plaintiff’s efforts would not have
advanced or enforced the law and ought
not be rewarded. There is nothing
unlawful about a leave policy that
distinguishes between leave that is due
to a court order and leave to enable an
employee to engage in private business,
including the filing of lawsuits. It
would be one thing if an employer
deliberately strewed unreasonable
obstacles in the path of employees
seeking to enforce their rights under
Title VII or other employment laws;
Sauers v. Salt Lake County, 1 F.3d 1122,
1128 (10th Cir. 1993), holds that
"preemptive retaliation" falls within the
statute’s prohibition against retaliation
for filing a charge of discrimination (42
U.S.C. sec. 2000e-3(a)). Cf. Heuer v.
Weil-McLain, 203 F.3d 1021, 1023 (7th
Cir. 2000); McEwen v. Delta Air Lines,
Inc., 919 F.2d 58, 59 (7th Cir. 1990).
There is no suggestion of that here,
however, and even if there were, it would
hardly merit a remedy against an employer
who denied leave to an employee who was
pursuing frivolous litigation against the
employer, just as it is not actionable
retaliation to discipline an employee for
filing a frivolous charge against the
employer. E.g., Roth v. Lutheran General
Hospital, 57 F.3d 1446, 1459-60 (7th Cir.
1995); Yatvin v. Madison Metropolitan
School District, 840 F.2d 412, 418 (7th
Cir. 1988); Little v. United
Technologies, 103 F.3d 956, 960 (11th
Cir. 1997). The employer’s action here in
yielding to the union’s demand to make an
exception for employment suits was not an
acknowledgment of unlawfulness, but, so
far as appears, merely a tug in the
endless tug of war between labor and
management.
Affirmed.
FOOTNOTE
/1 Judge Ripple was the third member of the panel
to which this appeal was submitted. However, an
event occurring after submission required him to
recuse himself from all further deliberations and
decision in the matter.