Shafer, Thad A. v. Kal Kan Foods Inc ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2066
THAD A. SHAFER,
Plaintiff-Appellant,
v.
KAL KAN FOODS, INC.,
and ALAN DILL,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-2021—Harold A. Baker, Judge.
____________
ARGUED MARCH 2, 2005—DECIDED AUGUST 1, 2005
____________
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. During the summer of 2001
Thad Shafer had four frightening encounters with Alan
Dill, one of his co-workers at Kal Kan Foods. Six months
after the last of these Shafer was fired. He contends that
Kal Kan discharged him in retaliation for his complaints
about Dill, complaints that he insists are protected by Title
VII of the Civil Rights Act of 1964. See 42 U.S.C. §2000e-
3(a). For its part, Kal Kan submits that it let Shafer go
because his personal life affected his conduct at work.
2 No. 04-2066
Shafer was upset about the fact that his wife had affairs
with two men who worked at Kal Kan, and when quarrels
broke out between Shafer and his rivals Kal Kan first
warned and then sacked him. The district court granted
summary judgment in Kal Kan’s favor and dismissed the
complaint against Dill without prejudice to renewal in state
court. 28 U.S.C. §1367(c)(3).
The resolution of Shafer’s wrongful-discharge claim is not
open to serious doubt. When Dill harassed and assaulted
him, Shafer complained to Cindy Hargis, whom he thought
to be the appropriate recipient of such complaints. (Hargis
swears that Shafer did not tell her about Dill’s behavior,
but on summary judgment a court must accept Shafer’s
evidence.) Hargis left Kal Kan’s employ in October 2001
without generating any written records about Shafer’s
complaints—and, Shafer says, without having done any-
thing about them or asked anyone else to intervene. Those
who decided to fire Shafer in February 2002 thus did not
know about his complaints the prior summer and cannot
have been trying to penalize him for making them.
Post hoc ergo propter hoc is not a good way to establish
causation. See Oest v. Illinois Department of Corrections,
240 F.3d 605, 616 & n.8 (7th Cir. 2001); Bermudez v. TRC
Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir. 1998). Shafer
insists that, because he was a good worker, and the others
involved were not cashiered, his complaints must have
caused his discharge. That approach would turn the federal
judiciary into a body of employment arbitrators asking
whether personnel decisions are supported by “just cause.”
The lack of “just cause” would establish that forbidden
discrimination or retaliation was the real cause. That’s not
what federal law says. The burden of persuasion is the
plaintiff’s. Whether or not Kal Kan responded in the best
way to the workplace acrimony traceable to Dinah Shafer
and her lovers, such matters are outside the scope of Title
VII. See Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560
(7th Cir. 1987).
No. 04-2066 3
Whether Shafer was a victim of sex discrimination dur-
ing 2001, and thus potentially entitled to compensatory
damages under 42 U.S.C. §1981a, is a more difficult ques-
tion. He had worked at Kal Kan without incident from 1989
until June 2001, when Dill attacked him. Dill, employed by
Kal Kan since 1983, had not bothered Shafer before; what
happened in 2001 to change this is not clear. (Dill was not
one of his rivals for Dinah’s affections.) But the encounters
were dramatic: beyond bullying language and sexual innu-
endo were four assaults and batteries.
Dill is about six inches taller and at least 100 pounds
heavier than Shafer. He used the difference to advantage.
In June 2001 Dill, who earlier had remarked that Shafer
has a “cheerleader ass” that “would look real nice on my
dick,” forced Shafer’s face down to his crotch (while clothed),
moving his groin to give the impression that Shafer was
performing fellatio. A few weeks later, in the same com-
pany, Dill grabbed Shafer’s hand and moved it to his crotch
(again while clothed) while moaning as if Shafer were
masturbating him. The force was enough to put Shafer in
fear that Dill would break his arm. The next month Dill
approached Shafer in the locker room when Shafer was not
wearing a shirt and pulled a handful of hair from Shafer’s
chest, causing considerable pain. Finally, in August 2001
Dill bit Shafer in the neck hard enough to raise welts,
though not to penetrate the skin. All four episodes appear
to be designed to demonstrate physical domination.
We may assume that Dill set out to humiliate Shafer
sexually and in other ways. But Title VII does not deal with
co-workers’ torts. It addresses discrimination by employers.
See 42 U.S.C. §2000e2(a)(1). Shafer encounters difficulty
with both the “discrimination” branch and the “by the
employer” branch. We start with the latter.
Dill was not a supervisor. Shafer’s salary, duties, and
promotion opportunities were unaffected. Dill was pursuing
4 No. 04-2066
a personal agenda, and his conduct would not be imputed to
the employer under standard agency principles. The special
rules of attribution adopted for employment-discrimination
litigation in Faragher v. Boca Raton, 524 U.S. 775 (1998),
and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998), are designed for supervisors’ behavior. See also
Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).
The most that one could say is that Kal Kan might be
accountable for Dill’s misconduct on a ratification theory if
it knew what was going on and did nothing helpful in
response. Yet Shafer had not been troubled for his first
12 years (since his hire in 1989), so Kal Kan had no reason
to suspect a problem. Dill had a history of making sexual
remarks, but no history of attacking other workers physi-
cally. This makes it impossible to show discrimination via
the employer’s knowledge that working conditions are worse
for one sex coupled with failure to intervene. See Durkin v.
Chicago, 341 F.3d 606, 611-13 (7th Cir. 2003); Hall v.
Bodine Electric Co., 276 F.3d 345, 356-57 (7th Cir. 2002).
Although Shafer contends that he complained orally to
Hargis, he offers no evidence (other than his say-so) that
she was the appropriate recipient. Kal Kan presented
evidence that by the summer of 2001 Hargis was no longer
a personnel officer; Shafer has not supplied contrary evi-
dence (such as, for example, flyers or an employee handbook
telling employees to take their complaints to Hargis).
Nothing in the record suggests that Hargis would (or could)
have done anything to assist a woman who complained to
her during the summer of 2001; Shafer does not offer any
reason to believe that Kal Kan as a whole shelters women
but not men from aggressive co-workers. What is more,
Shafer concedes that when he finally told his supervisor
about the problem—which he did not do until after the
fourth attack—Dill’s aggression ended. Whether this is
because Dill got wind that he might be in trouble, or be-
No. 04-2066 5
cause the supervisor intervened, does not matter; in either
event, Shafer was not hassled after the biting incident in
August 2001.
Then there is the question whether Dill’s behavior was
sex discrimination. Sexual horseplay differs from sex dis-
crimination, and Title VII covers only discriminatory con-
duct. The Court stated in Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75 (1998), that even sexually explicit
roughhousing among men must be distinguished from sex
discrimination. Only when severe or pervasive conduct
creates an objectively hostile or abusive working environ-
ment, so that the conditions of employment differ on
account of sex or another forbidden ground, is Title VII
implicated. See also, e.g., Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Cerros v. Steel Technologies, Inc.,
398 F.3d 944, 950-51 (7th Cir. 2005).
What happened to Shafer was not a “pervasive” deteri-
oration in conditions of his employment on account of sex;
most of his time at Kal Kan was untroubled. Dill committed
four batteries. This does not establish that working condi-
tions at Kal Kan were worse for men than for women.
Shafer became a target because he could not defend himself.
By contrast, in Shepherd v. Slater Steels Corp., 168 F.3d
998 (7th Cir. 1999), and Timm v. Progressive Steel Treating,
Inc., 137 F.3d 1008 (7th Cir. 1998), the sex-related harass-
ment was daily fare. For all this record shows, men at Kal
Kan generally had placid working conditions (as Shafer
himself did most of the time), while Dill picked on anyone
of either sex he could get away with tormenting. Shafer has
not established that his encounters with Dill reflected more
than personal animosity or juvenile behavior. See Hamm v.
Weyauwega Milk Products, Inc., 332 F.3d 1058 (7th Cir.
2003); Johnson v. Hondo, Inc., 125 F.3d 408, 412-13 (7th
Cir. 1997).
Even brief episodes of unwelcome sexual contact can
impose harms that meet the “severe” part of the Supreme
6 No. 04-2066
Court’s “severe or pervasive” formula. Events described in
Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir.
2000), offer an illustration. Payton kissed Hostetler against
her will and forced his tongue into her mouth; the next day
he grabbed her and began to remove her bra, putting her in
fear of rape, before being stopped by the unexpected entry
of another employee. What turned sexual assaults by a
co-worker (which do not violate Title VII) into sex dis-
crimination by the employer (which does) was the manage-
ment’s response: instead of firing or disciplining Payton, the
firm decided to separate the pair by moving Hostetler to a
distant and less desirable restaurant. In other words, the
firm forced the female victim to bear the costs of “solving”
the problem. That was express and intentional discrimina-
tion. Compare Smith v. Sheahan, 189 F.3d 529, 535 (7th
Cir. 1998), with Campbell v. Ingersoll Milling Machine Co.,
893 F.2d 925 (7th Cir. 1990). Nothing of the sort happened
to Shafer at Kal Kan.
If Shafer is describing events accurately, he has a solid
claim against Dill under state tort law for both assault and
battery. What he lacks, however, is a claim against Kal Kan
for sex discrimination. The district court has protected
Shafer’s tort claim by dismissing it without prejudice. The
judgment dismissing the Title VII claim on the merits is
affirmed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-05