Tremeyne Porter v. Erie Foods International, Inc. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1996
T REMEYNE P ORTER,
Plaintiff-Appellant,
v.
E RIE F OODS INTERNATIONAL, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:06-cv-50039—Frederick J. Kapala, Judge.
A RGUED JANUARY 7, 2009—D ECIDED A UGUST 7, 2009
Before P OSNER, R IPPLE AND R OVNER, Circuit Judges.
R IPPLE, Circuit Judge. Tremeyne Porter brought this
action against Erie Foods International, Inc. (“Erie Foods”).
He alleged race-based harassment, constructive dis-
charge and retaliation in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq. The district court granted summary judgment to
Erie Foods. Because Erie Foods took reasonable action to
detect and to terminate the discriminatory activities of
2 No. 08-1996
the offending employees, we affirm the judgment of the
district court.
I
BACKGROUND 1
During the time period relevant to this appeal, Tremeyne
Porter, who is an African-American, was an employee
of Burton Placement Services (“Burton”).2 On July 19, 2004,
he was placed by Burton as a temporary employee at
Erie Foods’ food production facility in Rochelle, Illinois.
Mr. Porter worked the third shift 3 as a filler stacker
under the supervision of Patricia Santos. On August 12,
sometime after 11:00 p.m., a coworker took Mr. Porter
to the “H-Line” production area, where a noose made
out of white nylon rope was hanging on a piece of machin-
ery, approximately twelve feet above the ground.
Coworker Cody Matheny, allegedly smiling, was standing
at his work station under the noose. Mr. Porter believed
that he was being singled out because he was the sole
African-American employee working the third shift,
1
We construe all facts in favor of the nonmoving party,
Mr. Porter. See Marion v. City of Corydon, Ind., 559 F.3d 700, 704
(7th Cir. 2009).
2
Prior to his placement with Erie Foods, Mr. Porter signed
an agreement with Burton stating that he understood that he
was a Burton employee. R.48, Def. Ex. 1 at 41-43.
3
The third shift ran from 11:00 p.m. to 7:20 a.m.
No. 08-1996 3
and he found the noose to be a highly offensive symbol
of slavery and the lynching of African-Americans.
Santos later went to the H-Line area and discovered the
hanging noose. She directed Matheny to crawl up to the
noose and take it down. She then asked him if he had
hung the noose; he denied doing so. Santos next went
to her office and placed the noose on her desk. She then
made her rounds, checking to make sure that employees
were at their proper places and that the machines were
operating properly.
During this time, Mr. Porter approached Santos and
told her that he believed that the noose was directed at
him. She asked Mr. Porter if he knew who was
responsible for the noose or why someone would hang
it; he stated that he did not. Santos then asked Mr. Porter
if he thought the perpetrator might be coworker
Matheny, Earl Rooney or Blair Crumb. Mr. Porter told
her that he did not. Santos told Mr. Porter that she
would talk to Andy Goffinet in the human resources
department and to her supervisor, Mark Jacobs. She
also said that she would inform the first-shift supervisor,
Darryl Emen, about the noose and see if he had heard
anything from his employees.
Santos hung the noose on the bulletin board in her
office; she says that she did this so that she would not lose
it. Santos then returned to her rounds. The noose
remained on the bulletin board for four hours, where it
was visible to employees through a window in her office
door. Mr. Porter later testified that Santos’ act of hanging
the noose on the bulletin board made him feel “betrayed”
4 No. 08-1996
because Santos “made it seem like she cared but in the
end she didn’t, because if she cared she wouldn’t allow
[him] to . . . see it hanging from somewhere else.” R.48,
Def. Ex. 1 at 152. He stated that he no longer felt com-
fortable talking to Santos. Id.On the morning of August 13, sometime after 7:00 a.m.,
Santos took the noose off the bulletin board so that she
could show it to Emen and Jacobs. She told them about
what had happened and noted that Mr. Porter thought
that the noose was directed at him. Neither Emen nor
Jacobs knew who was responsible. After Santos finished
speaking with them, she threw the noose away.
Between 8:00 a.m. and 9:00 a.m., Santos informed
Goffinet about the noose and about Mr. Porter’s remarks.
Goffinet stated that he was very concerned and that he
believed the matter needed to be addressed immediately.
Goffinet then informed his supervisor, Jim Klein, of the
incident.
That evening, Goffinet held a fifteen-minute meeting
with Santos, Mr. Porter and all of the other third-shift
employees. At the meeting, he discussed employee harass-
ment and attempted to ascertain who was responsible
for the noose. Goffinet told the workers that workplace
harassment would not be tolerated and mentioned the
company’s anti-discrimination policy. Santos did not
speak during the meeting, but, instead, watched the
employees’ faces in hope of learning who was responsible.
After the meeting, Matheny told Goffinet that he was not
the perpetrator.
Goffinet later spoke privately with nine of the fifteen
third-shift workers. He also met individually with
No. 08-1996 5
Mr. Porter for approximately forty-five minutes. Mr. Porter
told Goffinet that he did not feel comfortable talking to
him because Goffinet previously had been convicted of
abusing a minor and because Mr. Porter had been
abused as a child. They had a “very emotional” conversa-
tion about Mr. Porter’s family life. R.48, Def. Ex. 1 at 91.
During the conversation, Goffinet asked Mr. Porter
who was responsible for the noose; Mr. Porter told
Goffinet that he would not say who made or showed him
the noose because he did not want anyone to be fired.
Goffinet concluded the meeting by handing Mr. Porter
his business card and telling Mr. Porter that, if he ever
wanted to talk to anyone, he could call him.
In another incident around this time,4 coworker Felipe
Alvarez showed Mr. Porter and some other employees a
noose he had made. Alvarez testified that Mr. Porter
laughed when he saw the noose, but Mr. Porter vigorously
disputes this account and states that he felt threatened
by it. In a separate incident, Alvarez gave Mr. Porter a
noose in the locker room. During this incident, Alvarez
told Mr. Porter that, if Mr. Porter showed the noose to
anyone, Alvarez would come to Winnebago and look
for him, which Mr. Porter interpreted to be a threat to
his life and to his family. Id. at 85.
On August 15, Goffinet had another private talk with
Mr. Porter. Goffinet asked Mr. Porter if he was ready to
disclose who made the noose and who showed it to him.
4
The record does not indicate the date when this event oc-
curred.
6 No. 08-1996
Mr. Porter again declined to tell him, stating that he
did not want anyone to lose his job. Goffinet then told
Mr. Porter that he suspected that Matheny and Rooney
were responsible. Mr. Porter claims that he nodded or
made a statement confirming Goffinet’s suspicions. R.48,
Def. Ex. 1 at 95. Goffinet disputes this assertion; he
claims that Mr. Porter made no reply and “continued to
refuse to inform [him] of the identity of the person
who made the noose, possessed it, displayed or hung it.”
R.48, Def. Ex. 8 at ¶ 6. Mr. Porter did tell Goffinet that he
had been threatened by another employee, but did not
identify the individual; Goffinet reported this develop-
ment to Klein. He also asked Mr. Porter if he wanted to
switch to a different shift, but Mr. Porter declined the
offer. Goffinet subsequently followed up with Klein.
Santos asked Mr. Porter, on a nightly basis, whether he
knew who had hung the noose. She also followed up with
the first and second shift supervisors to ascertain if they
had heard anything about the noose. Santos later spoke
with Goffinet about his discussion with Mr. Porter and
learned that there were “several other nooses out and
about.” R.48, Def. Ex. 4 at 77.
Mr. Porter contacted the Rochelle Police Department on
August 14. He stated that he did not want to have
anyone arrested, but that he did want to file an informa-
tion report. R.48, Def. Ex. 10. He told the police that
workers were making nooses and hanging them on the
walls of the production floor and stated that employees
would walk past him while swinging nooses. Mr. Porter
also told the police that the human resources manager
No. 08-1996 7
at Erie Foods had held a meeting and that he would
call back if the meeting ameliorated the situation. He
further recounted Alvarez’s threat and stated that
Alvarez, Matheny and Rooney were responsible for
making what he believed to be racial comments, such as
calling him a “f---ing temp.” R.48, Def. Ex. 1 at 104. Mr.
Porter noted that the only action he wanted taken was
to have the situation documented. He told the officer
that he did not want the police to visit Erie Foods or the
employees, but that he wanted the harassment to stop.
On August 15, while Mr. Porter was in the break room,
Rooney and Matheny entered, singing “I wish you would
die,” and laughed. R.48, Def. Ex. 1 at 119. The next day,
a locker fell on Mr. Porter while he was changing into
his work clothes; suspecting that one of the other employ-
ees was responsible, he reported the incident to Santos.
Santos went into the locker room to see the tipped-over
locker; she also asked Mr. Porter if he knew who was
responsible or who was in the room at the time the locker
fell. Mr. Porter said that he did not know. She asked
Mr. Porter if he had been injured, and he stated that he
had been struck by the locker, but that he was un-
harmed. Santos reported the incident to Goffinet, who also
looked at the lockers and had them bolted to the wall the
next day.
Mr. Porter quit his job on August 19. Prior to his depar-
ture, he told Santos that he was planning on leaving
because he felt that the people at Erie Foods were
hostile toward him and that he did not feel safe working
there. Santos told him that he could come to her about
any problems and that he should let his employer,
8 No. 08-1996
Burton, know about his concerns. After Mr. Porter quit, he
gave Burton a written statement about the problems
that he had encountered at the Erie Foods plant, including
the incidents with Alvarez and the various statements
made by coworkers. This statement was faxed by Burton
to Erie Foods on August 20. Mr. Porter also gave Burton
the noose that Alvarez had given him. Erie Foods sub-
sequently fired Alvarez for his behavior.
Porter then filed this suit under Title VII. The district
court granted summary judgment to Erie Foods. Mr. Porter
filed this timely appeal.
II
DISCUSSION
We review the district court’s grant of summary judg-
ment de novo and draw all reasonable inferences in
favor of Mr. Porter, the non-moving party. See Rockwell
Automation, Inc. v. Nat’l Union Fire Ins. Co., 544 F.3d 752,
756 (7th Cir. 2008). Mr. Porter submits that he suffered
harassment amounting to a hostile work environment, that
he was constructively discharged and that he was termi-
nated for engaging in a protected activity, all in violation
of Title VII. We shall consider, in turn, each of these
arguments.
A.
1.
We first turn to Mr. Porter’s hostile work environment
claim. The Supreme Court has held that harassment
No. 08-1996 9
which is “sufficiently severe or pervasive to alter the
conditions of . . . employment” is actionable under Title
VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(quotation marks omitted). To survive summary judg-
ment, an employee alleging a hostile work environment
must show that: “(1) he was subject to unwelcome harass-
ment; (2) the harassment was based on his race; (3) the
harassment was severe or pervasive so as to alter the
conditions of the employee’s work environment by creat-
ing a hostile or abusive situation; and (4) there is a basis
for employer5 liability.” Williams v. Waste Mgmt. of Ill., Inc.,
361 F.3d 1021, 1029 (7th Cir. 2004).
5
Erie Foods does not seek to escape liability under Title VII on
the basis that it is not Mr. Porter’s employer. Nor would it
appear that, under the circumstances presented here, such an
argument would be persuasive. See Reynolds v. CSX Transp., Inc.,
115 F.3d 860, 869 (11th Cir. 1997) (rejecting the argument that
the plaintiff could not recover against CSX because “she was
technically employed by Olsten Temporary and not by” CSX,
and observing that whether a company is an employer for
purposes of Title VII is based on the “economic realities of the
situation viewed in light of the common law principles of
agency and the right of the employer to control the employee”),
rev’d on other grounds, 524 U.S. 947 (1998). See generally EEOC
Notice 915.002, Enforcement Guidance: Application of EEO Laws
to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, December 3, 1997 (noting that “[a] client
of a temporary employment agency typically qualifies as an
employer of the temporary worker during the job assignment,
along with the agency. . . . because the client usually exercises
significant supervisory control over the worker”).
10 No. 08-1996
Mr. Porter submits that he experienced unwelcome
harassment because he was shown nooses on multiple
occasions, subjected to unwelcome verbal harassment
and threatened by Alvarez. He contends that the harass-
ment was based on his race because he was the only
African-American employee working the third shift and
because nooses represent slavery and oppression.
Mr. Porter emphasizes that the harassment made him
fear for his own safety and for that of his family.
Mr. Porter maintains that sufficient evidence exists to
hold Erie Foods liable for the acts of racial harassment
committed by its employees. He claims that, after he
complained to Santos, Erie Foods conducted only a mini-
mal investigation and failed to prevent future discrim-
inatory behavior. He emphasizes that Santos hung the
noose on the bulletin board where it was visible to em-
ployees. Mr. Porter further argues that Goffinet conducted
only a cursory meeting with the employees, failed to hand
out or discuss the company’s anti-discrimination policy
and did not privately interview Matheny or Rooney.
Mr. Porter further notes that, after the meeting, the harass-
ment continued. In particular, he points to the incident
where Alvarez threatened him.
Mr. Porter maintains that Erie Foods may be held liable,
despite the fact that he did not report the subsequent
harassment. In Mr. Porter’s view, it was reasonable for
him to not report this subsequent harassment because
he did not trust Santos after the bulletin board incident
and felt uncomfortable around Goffinet, who had been
convicted in the past for sexual abuse of a minor. See Vance
No. 08-1996 11
v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1513-14 (11th
Cir. 1989) (holding that the plaintiff’s failure to notify
her employer about two nooses hung at her workstation
because she was afraid did not insulate the employer
from liability), overruled on other grounds, 983 F.2d 1573,
1581 (11th Cir. 1993). He claims that Erie Foods knew who
was responsible for the harassment, but failed to
suspend or terminate those individuals. Therefore,
Mr. Porter argues that Erie Foods tolerated a hostile
work environment instead of using its “arsenal of incen-
tives and sanctions” to affect the conduct of its employees.
Appellant’s Br. 33 (citing Dunn v. Wash. County Hosp.,
429 F.3d 689, 691 (7th Cir. 2005)).
2.
The harassment that Mr. Porter experienced in this
case was, undoubtably, based on race:
The noose in this context is a symbol not just of racial
discrimination or of disapproval, but of terror. Those
of us for whom a particular symbol is just that—a
symbol—may have difficulty appreciating the very
real, very significant fear that such symbols inspire in
those to whom they are targeted. No less than the
swastika or the Klansman’s hood, the noose in this
context is intended to arouse fear.
Vance, 983 F.2d at 1583 (Fay, J. dissenting). See also
Temitope Oriola and Charles Adeyanju, Haunted: The
Symbolism of the Noose, African Identities, Vol. 7, No. 1, at
91 (“The noose as an accoutrement of terror is essentially
12 No. 08-1996
about the ‘place’ of African-Americans in the United
States.”); see generally Lu-in Wang, The Complexities of
“Hate,” 60 Ohio St. L. J. 799, 835-36 (1999) (discussing the
psychological effect that lynchings have had on African-
Americans). “Like ‘a slave-masters whip,’ the image of a
noose is ‘deeply a part of this country’s collective con-
sciousness and history, any [further] explanation of
how one could infer a racial motive appears quite unneces-
sary.’ ” Tademy v. Union Pac. Corp., 520 F.3d 1149, 1159 (10th
Cir. 2008) (quoting Johnson v. Potter, 177 F. Supp. 2d 961,
965 (D. Minn. 2001)) (alteration in original). The noose is
a visceral symbol of the deaths of thousands of African-
Americans at the hand of lynch mobs. Williams v. N.Y.
City Hous. Auth., 154 F. Supp. 2d 820, 824 (S.D.N.Y. 2001)
(citing Robert L. Zangrando, The NAACP Crusade Against
Lynching, 1909-1950, at 4 (1980)). Given this backdrop,
several courts have recognized that “a noose may consti-
tute part of a hostile environment claim.” Tademy, 520 F.3d
at 1159 (collecting cases). In this case, the presence of
multiple nooses and the veiled threats by Mr. Porter’s
coworkers, which caused Mr. Porter to fear for his own
safety and that of his family, rose to the level of a
hostile work environment.
We therefore turn to the question of whether there is a
basis for employer liability. We have observed, on numer-
ous occasions, that Title VII is not a strict liability statute.
See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044,
1048 (7th Cir. 2000) (“[A]n employer is not strictly liable
under Title VII for sexual harassment perpetrated by
its employees”). Specifically, when a plaintiff, like
Mr. Porter, “claims coworkers alone were responsible
No. 08-1996 13
for creating a hostile work environment, he must show
that his employer has been negligent either in discovering
or remedying the harassment.” Williams, 361 F.3d at 1029(quotation marks omitted). Stated another way, the em-
ployer can avoid liability for coworker harassment “if
it takes prompt and appropriate corrective action reason-
ably likely to prevent the harassment from recurring.”
Tutman, 209 F.3d at 1048; accord Lapka v. Chertoff, 517 F.3d
974, 985 (7th Cir. 2008). Here, Mr. Porter does not argue
that Erie Foods was negligent in discovering the noose
hanging in the work area. Our focus, therefore, is on
whether Erie Foods responded promptly and effectively
to the incident. We believe the record establishes that
Erie Foods’ actions met this standard.
We have observed that a prompt investigation is the
“ ‘hallmark of a reasonable corrective action.’ ” Lapka, 517
F.3d at 984 (quoting Cerros v. Steel Techs, Inc., 398 F.3d
944, 953-54 (7th Cir. 2005)). Here, the steps taken by
Santos and Goffinet after the discovery of the noose,
taken as a whole, show that they took the harassment
seriously and took appropriate steps to bring the harass-
ment to an end. Immediately upon discovering the
noose, Santos directed Matheny to take it down and
inquired whether he was responsible for hanging it.
When Mr. Porter came to Santos later that evening, she
asked him if he knew who was responsible for the noose
or why someone would hang it. Santos specifically in-
quired whether Mr. Porter thought the perpetrator
might be Matheny, Rooney or Crumb; Mr. Porter told
her that he did not know. Santos then informed Mr. Porter
that she would talk to Goffinet and Jacobs about the
14 No. 08-1996
incident to see what follow-up should be done. She
said that she would speak to Emen to determine if any
workers during his shift knew anything about the noose.
Santos, in fact, did speak to Emen and Jacobs upon their
arrival at the end of her own shift. Santos also went to
Goffinet and told him of the noose and of Mr. Porter’s
remarks.6
For his part, Goffinet expressed his concern and his
intent to address the matter immediately. Goffinet first
informed his supervisor, Jim Klein, of the incident. Addi-
tionally, that very evening, Goffinet held a meeting with
all of the third-shift employees. Goffinet informed the
workers that harassment in the workplace would not
be tolerated; he also alerted the workers to the company’s
anti-harassment policy.
Goffinet later spoke privately with more than half of
the third-shift workers. He also met individually with
Mr. Porter. During their conversation, Goffinet specifically
6
We do note, however, that one action taken by Santos—the
placing of the noose on her office bulletin board—was ill-
advised. Although there is no evidence in the record that
Santos’ motives were in any way illicit, this action, apparently
taken to remind herself to report the matter to her seniors,
also demonstrated a lack of recognition of the powerful message
of racial hatred that a noose evokes. However, this misstep
stands in contrast to Santos’ otherwise diligent actions to
bring the harassment to an end. Notably, Mr. Porter never
reported this action to the company as a harassing event
and, when the record is evaluated as a whole, it is clear that
there is no basis for such a characterization.
No. 08-1996 15
asked Mr. Porter who was responsible for the noose;
Mr. Porter declined to name any of his coworkers. At the
end of the meeting, Goffinet gave Mr. Porter his business
card and told Mr. Porter that he was available to talk
with him at any time.
Mr. Porter faults Erie Foods for not taking further
action against Matheny and Rooney once he had identi-
fied them as the perpetrators. According to Mr. Porter,
during a second private meeting with Goffinet on
August 15, Goffinet told Mr. Porter that he (Goffinet)
suspected that Matheny and Rooney were responsible
for the noose. Mr. Porter claims that he nodded or made
a statement confirming Goffinet’s suspicions. R.48, Def.
Ex. 1 at 94. Although Goffinet disputes this assertion, at
this stage, we must accept Mr. Porter’s version of events
as true.
In assessing the corrective action, our focus is not
whether the perpetrators were punished by the
employer, but whether the employer took reasonable steps
to prevent future harm. Lapka, 517 F.3d at 984. “Title VII
requires only that the employer take steps reasonably
likely to stop the harassment.” Saxton v. AT&T Co., 10
F.3d 526, 536 (7th Cir. 1993). Mr. Porter maintains that the
steps taken by Erie Foods were ineffectual because the
harassment did not cease; specifically, he points to the
incidents in the break room on August 15 and in the
locker area on August 16, as well as the threatening
behavior by Alvarez. There is no question that a
“stoppage of harassment shows effectiveness. . . . However,
this is not the sole factor to be considered. Because there
16 No. 08-1996
is no strict liability and an employer must only respond
reasonably, a response may be so calculated even though
the perpetrator might persist.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 676 (10th Cir. 1998). In the present case,
the only information Erie Foods initially had was that a
noose was found hanging in the work area and that
Mr. Porter believed that it was directed at him. In
response, Santos made inquiries of her workers and fellow
supervisor; she made repeated inquiries of Mr. Porter. In
addition, Goffinet commenced an investigation; he met
with the entire third shift, and he also met with Mr. Porter.
After these actions had been taken, Mr. Porter did not
report any new racial harassment at the hands of
Matheny or Rooney.7
Mr. Porter had, of course, a duty to reasonably “avail
[him]self of the employer’s preventive or remedial appara-
tus.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
The Court has explained that Title VII “borrows from
tort law the avoidable consequences doctrine under
which victims have a duty to use such means as are
reasonable under the circumstances to avoid or mini-
mize the damages that result from violations of the stat-
ute.” Penn. State Police v. Suders, 542 U.S. 129, 146 (2004)
(citations and quotation marks omitted). See also Ford
7
During his second meeting with Goffinet on August 15, Mr.
Porter did tell Goffinet that he had been threatened by another
employee. However, Mr. Porter would not identify the em-
ployee or give any details about the nature of the threat. In
response, Goffinet offered to move Mr. Porter to another shift,
but Mr. Porter declined.
No. 08-1996 17
Motor Co. v. EEOC, 458 U.S. 219, 231 (1982) (discussing
a Title VII plaintiff’s responsibility to mitigate damages).
“If the victim could have avoided harm, no liability
should be found against the employer who had taken
reasonable care.” Faragher, 524 U.S. at 807.
Mr. Porter seeks to excuse his lack of cooperation in the
investigation of the noose incident, as well as his failure
to disclose the serious problems he was encountering
with Alvarez, because of Santos’ handling of the noose 8
and because of Goffinet’s personal history. However, we
have noted that “an employee’s subjective fears of con-
frontation, unpleasantness or retaliation do not alleviate
the employee’s duty . . . to alert the employer to the
allegedly hostile environment.” Hill v. Am. Gen. Fin., Inc.,
218 F.3d 639, 644 (7th Cir. 2000) (quoting Shaw v. AutoZone,
Inc., 180 F.3d 806, 813 (7th Cir. 1999) (discussing em-
ployee’s burden to report harassment by supervisor)).9
Furthermore, the actions of both Santos and Goffinet,
taken as a whole, show that they were prompt, serious
8
Mr. Porter faults Santos for placing the noose on her bulletin
board while she was investigating. Specifically, Mr. Porter
claims that this action caused him distress because the noose
was visible to others.
9
Moreover, this case can be distinguished from Vance, 863
F.2d at 1513-14, in which the plaintiff’s failure to notify her
employer about two nooses hung at her work station did not
insulate her employer from liability. In Vance, the plaintiff was
concerned that management might be responsible for the
nooses. Id. In contrast, Mr. Porter did not believe that his
supervisors were responsible for the harassment.
18 No. 08-1996
and diligent in trying to weed out the offending behavior
and allay Mr. Porter’s concerns. Santos instituted an
investigation, spoke with other shift leaders, attended
the meeting with her shift and asked Mr. Porter every
night whether he knew who had hung the noose. For
Goffinet’s part, he not only held the meeting with the
third shift, interviewed third-shift workers 1 0 and met with
Mr. Porter on two separate occasions, but he also offered
to transfer Mr. Porter to another shift. See, e.g., Williams,
361 F.3d at 1030 (noting that the court has found that
separating the parties is “an appropriate remedy in race
harassment cases”).1 1 Mr. Porter’s reticence, therefore,
does not excuse his failure to provide the detail necessary
for Erie Foods to understand the nature of the harass-
ment and to respond appropriately.1 2
10
Mr. Porter also claims that management should have inter-
viewed individually the prime suspects, Matheny and Rooney.
This record provides us with little basis to fault the manage-
ment in this respect. It was reasonable for management to
want facts before confronting the prime suspects, and, partially
due to Mr. Porter’s reluctance to cooperate, those facts
had not yet been assembled when Mr. Porter quit his job.
11
Mr. Porter does not claim that transferring him to a different
shift would have made him worse off. See Tutman v. WBBM-TV,
Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000).
12
Instead of reporting all of the harassers and harassing behav-
ior to Erie Foods, Mr. Porter contacted the Rochelle Police
Department. In this report, Mr. Porter not only explicitly
identified the three individuals with whom he was having
difficulty, he also described in detail the type of harassment
(continued...)
No. 08-1996 19
In sum, we cannot say that, on this record, a reasonable
trier of fact could conclude that Erie Foods had been
negligent in investigating or responding to the harass-
ment of which it had knowledge. Accordingly, we
must conclude that Erie Foods is not liable for the racial
harassment experienced by Mr. Porter.
B.
We next consider Mr. Porter’s claim that he was con-
structively discharged on the basis of his race. 1 3 Ordinarily
a plaintiff “is expected to remain on the job while seeking
redress” for his employer’s discriminatory actions. See
Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 427 (7th Cir.
2006) (citations and quotation marks omitted); see also
Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789-90
(7th Cir. 2007) (same). In Pennsylvania State Police v.
Suders, 542 U.S. 129 (2004), the Supreme Court, while
acknowledging explicitly that Title VII encompasses
employer liability for constructive discharge, id. at 143,
emphasized that, although a plaintiff may establish a
hostile work environment by showing that he has been
subjected to severe or pervasive harassment, id. (citing
12
(...continued)
he was enduring. Although Mr. Porter certainly had the right
to alert the police to the threatening behavior, it did not relieve
him of the responsibility to make Erie Foods aware of these
incidents.
13
Because Mr. Porter’s race discrimination theory is based on
constructive discharge, we shall apply our constructive dis-
charge precedent.
20 No. 08-1996
Meritor Sav. Bank, 477 U.S. at 67), a “further showing” is
necessary to establish a constructive discharge, id. at 134.
Specifically, the plaintiff “must show that the abusive
working environment became so intolerable that [his]
resignation qualified as a fitting response.” Id. (quotation
marks omitted); see also Boumehdi, 489 F.3d at 789 (“To
establish a claim for constructive discharge, a plaintiff
must prove that unlawful discrimination made her work-
ing conditions so intolerable that a reasonable person
would be forced to resign.” (citing Suders, 542 U.S. at 147)).
The present case presents a different situation than the
one before the Supreme Court in Suders.1 4 Mr. Porter
does not contend that the harassment he endured was
effectuated by his supervisors. Rather, he maintains that
management’s failure to take definitive action to stop
the harassment justified his departure. In short, he con-
tends that, although his coworkers were the ultimate
14
In Suders, the Court made clear that the case before it
“concern[ed] an employer’s liability for one subset of Title VII
constructive discharge claims: constructive discharge re-
sulting from sexual harassment, or ‘hostile work environment,’
attributable to a supervisor.” 542 U.S. at 143. Given this
context, the Court continued, its “starting point” was the
framework Burlington Industries, Inc. v. Ellerth, 524 U.S. 742(1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), “estab-
lished to govern employer liability for sexual harassment by
supervisors.” Id. The Court was careful to observe that
“Ellerth and Faragher expressed no view on the employer
liability standard for co-worker harassment. Nor do we.” Id. at
143 n.6.
No. 08-1996 21
source of the harassment, it was the actions of manage-
ment, or, more appropriately, the lack of management
action that made his “working conditions so intolerable
that [he had] no option but to resign.” Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 894 (1984) (cited in Suders, 542 U.S.
at 142).
As we noted earlier, the constructive discharge test sets
a high bar in order to give an employer an opportunity
to address the situation before an employee resigns.
Boumedhi, 489 F.3d at 789-90; see also Witte v. Wis. Dep’t of
Corr., 434 F.3d 1031, 1035-36 (7th Cir. 2006) (“Working
conditions for constructive discharge must be even more
egregious than those that would support a finding of a
hostile work environment; absent extraordinary circum-
stances, an employee is expected to remain employed
while seeking redress.”) (citing Herron v. DaimlerChrysler
Corp., 388 F.3d 293, 303 (7th Cir. 2004)). We have no doubt
that the conduct in this case was egregious, and we have
previously found egregious conduct to be sufficient to
support a claim for constructive discharge.1 5 Here, the
15
See Taylor v. Western & S. Life Ins. Co., 966 F.2d 1188, 1191 (7th
Cir. 1992) (recognizing that a jury could find constructive
discharge where the plaintiffs’ supervisor made several racist
comments, fondled one plaintiff and held a gun to another
plaintiff’s head); Brooms v. Regal Tube Co., 881 F.2d 412, 416-17,
423-24 (7th Cir. 1989) (holding that constructive discharge
was established after “repeated instances of grossly offensive
conduct and commentary” that culminated in an incident
where a coworker showed the plaintiff a racist pornographic
(continued...)
22 No. 08-1996
allegations include repeated use of a noose—perhaps
the ultimate symbol of racial hatred and hate crimes—
combined with implied threats of physical violence. Such
conduct clearly qualifies as egregious for purposes of
constructive discharge.
Nevertheless, in determining whether a plaintiff
may recover for a constructive discharge, we also must
assess the employer’s response to that conduct. We
believe that, on the facts presented here, a jury would
have to conclude that Erie Foods’ response was a reason-
able one. There is no question that Erie Foods had a
means in place for remedying complaints of workplace
harassment, that Mr. Porter initially availed himself of
that procedure, that his complaint set in motion an investi-
gation of his claim and that management informed the
entire third shift that discriminatory conduct would not
be tolerated.
Additionally, both Santos and Goffinet followed up with
Mr. Porter. Indeed, when Mr. Porter informed Goffinet
that he had been threatened by another, unidentified
coworker, Goffinet offered to move Mr. Porter to a differ-
ent shift. Despite management’s efforts to both root
out the offenders and to shield Mr. Porter from the offend-
ing behavior while the investigation was ongoing,
Mr. Porter did not report additional harassment by Rooney
15
(...continued)
photograph, told her that she was hired to perform the task
depicted in the photograph, grabbed the plaintiff and
threatened to kill her).
No. 08-1996 23
and Matheny, did not identify Alvarez as the other
harasser and did not avail himself of the opportunity to
change shifts. Given the efforts that Erie Foods’ manage-
ment made to address the harassment, a reasonable
employee would have given his employer a further
chance to remedy the workplace harassment. See Lee-Crespo
v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.
2003) (stating that “the evaluation of a constructive dis-
charge claim takes into account how the employer re-
sponded to the plaintiff’s complaints and whether it was
likely that the harassment would continue” and noting
that the plaintiff’s constructive discharge claim was
undermined by the management’s swift response to
her complaints).
In sum, Erie Foods diligently investigated Mr. Porter’s
sole complaint of race-based harassment. Nevertheless,
when Mr. Porter continued to be harassed, he did not use
the means available to him to remedy the situation.
Consequently, Erie Foods has defended itself success-
fully against Mr. Porter’s constructive discharge claim.
C.
Finally, we consider Mr. Porter’s claim that Erie Foods
retaliated against him for engaging in a protected activity.
An employee can establish a prima facie case for retalia-
tion under either the direct or indirect method. Roney v.
Ill. Dept. of Trans., 474 F.3d 455, 459 (7th Cir. 2007). Mr.
Porter proceeds under the direct method, which requires
him to show that: (1) he engaged in a statutorily protected
activity; (2) an adverse action was taken against him
24 No. 08-1996
by his employer; and (3) there is a causal connection
between the two. Salas v. Wis. Dep’t of Corr., 493 F.3d 913,
924 (7th Cir. 2007).
Mr. Porter submits that he suffered from unlawful
retaliation for opposing impermissible race-based discrimi-
nation. He maintains that he engaged in a protected
activity when he complained about the noose on
display over the H-line. He further contends that he
suffered an adverse employment action when he was
constructively discharged. Mr. Porter argues that there
is a causal link between his complaints and the construc-
tive discharge, because management failed to remedy
the harassment and, therefore, forced him to leave.
As we discussed earlier, we do not believe that
Mr. Porter was constructively discharged. There certainly
is no showing that Erie Foods ignored or slowed its
investigation after the initial complaint in the hope that
the continued harassment would cause Mr. Porter to
leave. The record shows that Erie Foods took appropriate
action to address Mr. Porter’s complaint. There is no
evidence in the record that it failed to take Mr. Porter’s
complaint seriously. We therefore cannot conclude that
Erie Foods retaliated against Mr. Porter.
Conclusion
For the foregoing reasons, we affirm the judgment of
the district court.
A FFIRMED
No. 08-1996 25
R OVNER, Circuit Judge, concurring. As my brethren aptly
point out, a noose is one of the most potent symbols of
racial oppression—a symbol of terror and violence. A
person who realized the power of that message, upon
discovering it, would condemn it to a dark hidden place
where it could do no further harm. After removing the
noose from the production area of the H line, however,
supervisor Santos took that message of terror, threat, and
violence and relocated it on the bulletin board in her
windowed supervisor’s office where it was visible to all
employees. The majority describes this act as “ill-ad-
vised”—an understatement for sure. At its best, Santos’
act sent the message that she had no idea of the potency of
the message and, as a result, would either fail to take the
harassment seriously or would bungle the investiga-
tion as she had the efforts to remove the offending com-
munication. At worst, her re-broadcast of the noose sent
a message that she sided with the harassers.
The majority credits Santos’ testimony that she placed
the noose on the bulletin board so that she would not lose
it and to remind herself to report the matter to her super-
visors, both of which are odd excuses for a bulletin
board display of a symbol of lynching black men. A
drawer, a purse, a file cabinet, or a box would all keep the
evidence safe, and Santos’ concerns about forgetting to
report the event simply reinforces my best-case-scenario
hypothesis—that Santos failed to understand the gravity
of the harassment. Furthermore, four hours later, after
showing the noose to her supervisor and the first shift
supervisor, she threw that noose that she was so
fearful of losing into the garbage. By doing so, she
26 No. 08-1996
failed to preserve it for future investigation by human
resource personnel or other higher ranking company
supervisors.
We need not determine Santos’ intentions. Whether an
intentional perpetuation of the harassment or simply an
“ill-advised” misstep, as the majority characterizes it, the
company had an obligation to correct the harm. The
failure to take corrective action in such a case simply
cannot be “reasonable action” as a matter of law. It ap-
pears, however, that Porter never complained to the
company about this particular harassing event. He men-
tions it in this appeal as a means of excusing his failure
to name the perpetrators of the harassment, arguing that
the act made him feel uncomfortable about talking to his
supervisor about the event. As the majority points out,
under the framework set forth in Faragher v. City of Boca
Raton, 524 U.S. 775, 806-07, 118 S. Ct. 2275, 2292 (1998),
Porter had a duty to avail himself of his employer’s
remedial apparatus in some manner. See also Cerros v.
Steel Techs., Inc., 398 F.3d 944, 952 (7th Cir. 2005). Had he
done so, “reasonable action” would have required the
company to take prompt and decisive action to correct
that harm.
The majority concludes in footnote 6 that, “when the
record is evaluated as a whole, it is clear that there is
no basis for” characterizing the noose in the super-
visor’s office as harassing. Ante at p. 14, fn.6. I dis-
agree. Nevertheless, Porter never reported this particular
act of harassment and Porter points to no evidence that any
of the managers saw the noose in her office, so the com-
No. 08-1996 27
pany cannot be liable for its failure to take reasonable
action.
Furthermore, the majority accurately notes that Santos
and Goffinet removed the original noose promptly, imme-
diately held a meeting for all shift workers informing
them of the company’s harassment policy and reinforcing
that the company would not tolerate harassment, inter-
viewed the majority of the shift’s employees, held several
meetings with Mr. Porter to ferret out the culprit, and
offered to transfer him to another shift.1 Their efforts
indeed may have been hampered by Porter’s reticence
to co-operate in the investigation and his failure to
report all of the incidents that he now claims contributed
to the harassment. I agree with the majority that the
company’s actions, taken as a whole, were sufficient to
allow a rational trier of fact to conclude that the
company took reasonable steps to stop the harassment
and prevent future harm, despite Santos’ serious error.
See Lapka v. Chertoff, 517 F.3d 974, 984 (7th Cir. 2008), Saxton
v. Am. Tel. & Tel. Co., 10 F.3d 526, 535-536 (7th Cir. 1993).
1
In the usual case we would expect the employer to remedy
the harassment by inconveniencing the harasser with a transfer
and not the victim. See, e.g., Williams v. Waste Management of
Illinois, 361 F.3d 1021, 1030 (7th Cir. 2004). In this case, however,
since the company never identified the harasser with any
confidence, and because we do not know whether the transfer
would have been better or worse for Porter, it is legitimate
to accept as remedial Goffinet’s offer to transfer Porter.
28 No. 08-1996
I would stop short, however, of the majority’s description
of Santos’ efforts as “diligent.”
8-7-09