Racicot, Anne B. v. Wal-Mart Stores Inc ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2733
ANNE B. RACICOT,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Southern District of Indiana, Evansville Division.
No. 01 C 223—Richard L. Young, Judge.
____________
ARGUED JANUARY 3, 2005—DECIDED JULY 5, 2005
____________
Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
BAUER, Circuit Judge. Anne Racicot appeals the district
court’s grant of summary judgment to Defendant-Appellee
Wal-Mart on her claims of sex discrimination, sexual har-
assment, and retaliation under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.
(“Title VII”) and age harassment and retaliation under the
Age Discrimination in Employment Act, 29 U.S.C. §§ 621et seq. (“ADEA”). For the following reasons, we affirm.
2 No. 04-2733
I. Background
Racicot began working at the Wal-Mart in Jasper,
Indiana, in July 1999 as an associate in the seafood de-
partment. Racicot’s lawsuit stems from incidents involving
her co-workers Mike Condra and Dan Simpson. First,
Racicot took offense at several workplace comments made
by Condra. She claims that he often used foul language in
her presence and told her on several occasions that she
“shouldn’t be working at [her] age.” Condra’s workplace
behavior prompted complaints by Racicot and several other
associates, both male and female. Condra was terminated
in November 2000 after a customer complained to man-
agement that she had overheard Condra call Racicot a
“fucking bitch.” Racicot did not hear this comment and only
learned of it after Condra’s termination.
Racicot also complains about Simpson’s treatment of her.
Specifically, she claims that Simpson regularly yelled at
her, called her names like “son of a bitch,” cursed in her
presence, interfered with her work and vacation schedule,
and told her, “if you were younger, you could pick up the
boxes when heavy shipments arrived at the store.”
Racicot made written and oral complaints to management
about Simpson and Condra’s conduct, and Store Manager
Kathy Horney met with her to discuss her concerns. Racicot
also met with District Manager Mike Owens, who reviewed
all of her complaints. Racicot specifically complained about
Simpson’s yelling, poor job performance, and poor customer
service.
In November 2000, Racicot was verbally reprimanded for
a violation of company policy when she held some dis-
counted meat back from the customer display and later sold
the lower-priced meat to her husband during her shift. In
December 2000, Racicot was suspected of being involved in
mislabeling or underringing seafood. As part of the in-
vestigation into this incident, Racicot prepared a written
No. 04-2733 3
statement in which she admitted attempting to improperly
sell her friend shrimp at a sale price, but claims to have
changed her mind at the last minute. Based on this incident
and the incident a month earlier involving holding back
discounted meat, Horney decided to terminate Racicot. A
female associate who is older than Racicot replaced her in
the seafood department.
II. Discussion
We review a district court’s grant of summary judgment
de novo, viewing all facts and reasonable inferences from
the record in the light most favorable to the non-moving
party. Moser v. Ind. Dept. of Corr., 406 F.3d 895, 900 (7th
Cir. 2005).
A. Sex Discrimination
Racicot argues that Wal-Mart discriminated against her
on the basis of her sex by interfering with her work sche-
dule on three occasions, thereby denying her vacation time.
Title VII makes it unlawful for an employer to “fail or
refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s . . . sex . . . .” 42 U.S.C.
§ 2000e-2(a)(1).
Though her claim is somewhat nebulous, Racicot does not
appear to contend that she was terminated because of sex
discrimination. With regard to her scheduling complaints,
those incidents all took place before April 2000. Racicot filed
her charge of discrimination over a year later, on May 21,
2001. Under Title VII, a plaintiff has 300 days from the
date of the alleged unlawful employment practice to file a
charge with the appropriate federal or state agency; conduct
occurring prior to the limitations period cannot form the
4 No. 04-2733
basis of a Title VII suit. Hardin v. S.C. Johnson & Son, Inc.,
167 F.3d 340, 344 (7th Cir. 1999). Racicot’s claims would
have to be based on conduct that occurred after July 25,
2000. Since this is not the case, the district court correctly
ruled that Racicot’s allegations are time-barred and prop-
erly granted summary judgment.
B. Sexual Harassment
Racicot also alleges that Condra and Simpson sexually
harassed her, thereby creating a hostile working environ-
ment, by cursing at her and using vulgar language in her
presence. To succeed on her claim, Racicot must establish
that: (1) she was subject to unwelcome harassment; (2) the
harassment was based on her sex; (3) the harassment was
sufficiently severe or pervasive so as to alter the conditions
of her employment and create a hostile or abusive atmo-
sphere; and (4) there is a basis for employer liability.
Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 426 (7th
Cir. 2004).
Racicot has not demonstrated that the harassment she
experienced was severe or pervasive. A hostile work en-
vironment is one that is both objectively and subjectively
offensive. Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998). In evaluating the objective offensiveness of a
plaintiff’s work environment, we consider all of the circum-
stances, including frequency and severity of the conduct,
whether it is humiliating or physically threatening, and
whether it unreasonably interferes with an employee’s work
performance. Luckie v. Ameritech Corp., 389 F.3d 708, 714
(7th Cir. 2004). In this case, Racicot has described a limited
number of incidents that are more reflective of run of the
mill uncouth behavior than an atmosphere permeated with
discriminatory ridicule and insult. See Cooper-Schut, 361
F.3d at 426. Racicot complains that Condra and Simpson
used vulgar language in her presence, occasionally cursed at
No. 04-2733 5
her, yelled at her, and made isolated comments about older
women in the workplace. These incidents, even when taken
together, fall short of an objectively offensive work environ-
ment. The district court properly granted summary judg-
ment in favor of Wal-Mart on the sexual harassment claim.
C. Age Harassment
Plaintiff’s next claim is that she was harassed on the
basis of her age. Again, we note that Racicot does not ap-
pear to claim that she was actually terminated due to her
age.1 Instead, she complains that Condra and Simpson
harassed her by making comments about the propriety of
women working at her age and the fact that she could pick
up heavy boxes if she were younger.
This court has assumed, but never decided, that plaintiffs
may bring hostile environment claims under the ADEA.
Bennington v. Caterpillar, Inc., 275 F.3d 654, 660 (7th Cir.
2001); Halloway v. Milwaukee County, 180 F.3d 820,
827 (7th Cir. 1999). We need not decide this issue in the
instant case because even assuming such a claim to be cog-
nizable, Racicot fails to provide evidence to support such a
claim. Condra’s and Simpson’s isolated comments about
Racicot’s age were neither severe or pervasive enough to
create an objectively hostile work environment. Bennington,
275 F.3d at 660. As with Racicot’s sexual harassment claim,
the statements made by Condra and Simpson are examples
of boorish behavior but not actionable age harassment.
Accordingly, summary judgment was proper on the age
harassment claim.
1
The fact that Racicot was replaced by an associate who is older
than she prevents her from establishing a prima facie case of age
discrimination, regardless.
6 No. 04-2733
D. Retaliation
Finally, Racicot argues that she was terminated in re-
taliation for her complaints about Condra and Simpson. An
employer may not retaliate against an employee who has
complained about discrimination or other employment
practices that violate Title VII or the ADEA. 42 U.S.C.
§ 2000e-3(a); 29 U.S.C. § 623(d). Since Racicot has no direct
evidence of retaliation, she must proceed under the indirect
method and establish that: (1) she engaged in statutorily
protected activity; (2) she was performing her job according
to Wal-Mart’s legitimate expectations; (3) despite her
satisfactory performance, she suffered an adverse employ-
ment action; and (4) she was treated less favorably than
similarly situated employees who did not engage in such
protected activity. Stone v. City of Indianapolis Public Util.
Div., 281 F.3d 640, 644 (7th Cir. 2002). Racicot has failed to
offer any evidence of a similarly situated employee who did
not make complaints and was treated more favorably.
Moreover, Wal-Mart has articulated a legitimate, nondis-
criminatory reason for terminating Racicot. Horney decided
to fire Racicot for integrity issues after she was involved in
two suspicious incidents involving holding back food or
selling it at an improperly discounted price. Since Racicot
has failed to establish the fourth prong of the prima facie
test and Wal-Mart has come forward with a legitimate
reason for her termination, summary judgment was
properly granted to Wal-Mart on the retaliation claim.
III. Conclusion
For the reasons set forth above, we AFFIRM the judgment
of the district court in favor of Wal-Mart.
No. 04-2733 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-05
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