Elaine Scaife v. DVA ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1152
ELAINE SCAIFE,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS
and DENIS R. MCDONOUGH, Secretary of Veterans Affairs,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cv-02853-TWP-TAB — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED NOVEMBER 8, 2021 — DECIDED SEPTEMBER 27, 2022
____________________
Before SCUDDER, KIRSCH, and JACKSON-AKIWUMI, Circuit
Judges.
JACKSON-AKIWUMI, Circuit Judge. Elaine Scaife worked as a
Human Resources Classifier at the Roudebush Veterans Af-
fairs Medical Center in Indianapolis. While there, a depart-
ment lead called her a racial slur outside of her presence and
her supervisor purportedly treated her differently based on
her gender. Scaife complained to human resources, but the
2 No. 21-1152
human resources officer responded with a counseling email
disapproving of Scaife’s approach to handling workplace
problems. Scaife received this counseling email a few weeks
after she had already filed an internal Equal Employment Op-
portunity (EEO) complaint claiming a hostile work environ-
ment. She later transferred to a different VA facility and sued
her employer for retaliation, constructive discharge, and a
hostile work environment based on gender and race. The dis-
trict court granted summary judgment for her employer on all
claims. We affirm.
I
In reviewing the district court’s grant of summary judg-
ment in favor of Scaife’s employer, we construe all facts and
draw all inferences in the light most favorable to Scaife. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Scaife is an African-American woman who began working
as a Human Resources Specialist at Roudebush in July 2010.
As a Human Resources Specialist, Scaife focused on job
classification—she determined the appropriate title, series,
and pay grade for jobs within the VA. Scaife always worked
at or above the legitimate expectations of her employer and
received “Outstanding” or “Excellent” ratings on her annual
performance reviews.
Roughly five to six years after starting her position, Gavin
Earp, a white male, became Scaife’s immediate supervisor.
Earp transferred from a VA medical facility in Danville, Illi-
nois, where he was reportedly known for mistreating female
employees. According to Scaife, Earp displayed this same be-
havior at Roudebush. For example, Scaife noticed that Earp
never yelled at a male classifier who made mistakes, even
No. 21-1152 3
when those mistakes were brought to Earp’s attention. Mean-
while, Earp demeaned Scaife during conversations, threat-
ened her job, and accused her of performing her job illegally.
Scaife recalls three different occasions when Earp “was rude
to” and “aggressively” yelled at her. On one occasion, Earp
yelled so loud that a co-worker sent Scaife an email asking if
she needed help. This same co-worker later testified that Earp
could be “[a]rgumentative” with men and women alike.
In August 2016, Earp told Scaife and another black female
classifier that, in light of upper management’s increased scru-
tiny into the classifications program, he wanted them to start
routing all classification actions to him for review. He later
told them that they needed to be more flexible and less bu-
reaucratic in their classification determinations; in other
words, he wanted them to classify certain positions higher if
told to do so. When Scaife inquired whether doing so would
violate rules and regulations, Earp became “aggressive” and
stated that he could be disciplined if he failed to do what up-
per management told him to do. Scaife understood this state-
ment as a threat that she too would be disciplined if she did
not “loosen classifications,” even if illegal.
In September 2016, Earp asked Scaife to rate a Northern
Indiana HR Specialist position. When Scaife classified the po-
sition lower than Earp would have liked, he stormed into
Scaife’s office, yelled at her, and accused her of breaking the
law. Earp later returned to yell at Scaife again. Scaife sought
assistance from Michael Knutson who worked at the VA’s na-
tional classifying office and had previously classified the
same Northern Indiana HR Specialist position in 2006. Knut-
son testified that Earp was “asking [Scaife] to violate the law”
in classifying the Northern Indiana position. Following the
4 No. 21-1152
incident with Earp, Scaife went to an EEO officer to inquire
about the EEO process for addressing a hostile work environ-
ment. She also sent text messages about the incident to Earp’s
direct supervisor, Human Resources Officer (HRO) Chari
Weddle. In the text messages, Scaife expressed that Earp cre-
ated a hostile work environment for her.
Also in September 2016, a co-worker informed Scaife that
the Chief of the Police Service, Brian Fogg, a white male,
called Scaife the N-word during a meeting in February of that
year. Captain Roman Holowka, who was present during the
meeting, later confirmed this for Scaife. Captain Holowka ex-
plained to Scaife that around that time, Chief Fogg wanted
Scaife to classify a Criminal Investigator position at a particu-
lar grade level, but when she refused to do this, Chief Fogg
called Scaife a “stupid fucking n****r.” Upon hearing this
from Captain Holowka and her co-worker, Scaife was “dev-
astated” and reported the derogatory statement to HRO Wed-
dle. During this time, Scaife also heard from other VA em-
ployees that Chief Fogg had a history of racial insensitivity.
On October 14, 2016, the VA received a notice that Scaife
filed EEO charges against it. Shortly thereafter, on October 25,
2016, HRO Weddle sent Scaife a formal counseling email. In
the email, HRO Weddle stated that Scaife, for the second time,
had inappropriately interjected her “personal opinion in
place of [her] professional opinion” when discussing classifi-
cations, including in her text messages to HRO Weddle about
classifying the Northern Indiana HR Specialist position. HRO
Weddle informed Scaife that she is “expected to exercise good
judgment with respect to identifying urgent matters.” HRO
Weddle explained that although the email did “not constitute
a disciplinary action,” it would be placed in Scaife’s personnel
No. 21-1152 5
file and “may be used to determine an appropriate penalty
should further administrative action be considered.”
Scaife later applied for and accepted an offer for the same
classifier position at a VA center in California with the same
pay. The new position allowed her to work remotely from her
Indianapolis home five days a week. After transferring posi-
tions, Scaife sued the VA under Title VII of the Civil Rights
Act of 1964, claiming a race and gender-based hostile work
environment, retaliation, and constructive discharge. At sum-
mary judgment, the district court ruled in favor of the VA.
The district court concluded that although Chief Fogg’s one-
time use of a racial epithet was highly offensive and unques-
tionably uncivil, it was not enough to trigger Title VII liability.
The district court also concluded that Scaife could not show a
gender-based hostile work environment given the incidents
she described with her supervisor, nor could she show that
she was retaliated against and constructively discharged.
Scaife filed the instant appeal.
II
We review the district court’s order granting summary
judgment de novo. Paschall v. Tube Processing Corp., 28 F.4th
805, 812 (7th Cir. 2022). “Summary judgment is appropriate
when there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). We draw all justifiable inferences in favor of
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
A. Hostile Work Environment
Scaife first argues that she provided enough evidence on
both her race-based and gender-based hostile work
6 No. 21-1152
environment claims to survive summary judgment, either in-
dividually or in the aggregate. Title VII prohibits employers
from discriminating against employees based on race or gen-
der. 42 U.S.C. § 2000e–2(a)(1). A work environment is hostile
under Title VII “[w]hen the workplace is permeated with ‘dis-
criminatory intimidation, ridicule, and insult,’ that is ‘suffi-
ciently severe or pervasive to alter the conditions of the vic-
tim’s employment and create an abusive working environ-
ment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To
prove a hostile work environment claim based on either race
or gender, an employee must show: (1) the work environment
was both subjectively and objectively offensive; (2) the har-
assment was based on membership in a protected class; (3)
the conduct was severe or pervasive; and (4) there is a basis
for employer liability. Alexander v. Casino Queen, Inc., 739 F.3d
972, 982 (7th Cir. 2014).
As most relevant here, courts consider the totality of the
circumstances when determining whether conduct is severe
or pervasive. See Lambert v. Peri Formworks Sys., Inc., 723 F.3d
863, 868 (7th Cir. 2013). This includes (1) the frequency of the
discriminatory conduct; (2) how offensive a reasonable per-
son would deem it to be; (3) whether it is physically threaten-
ing or humiliating conduct as opposed to verbal abuse; (4)
whether it unreasonably interferes with an employee’s work
performance; and (5) whether it is directed at the victim. Id.
1. Race-based hostile work environment
Scaife asserts that hearing from her co-workers that Chief
Fogg, a supervisor in another department, called her a “stu-
pid fucking n****r”, is enough to trigger Title VII liability. It
goes without saying that the N-word is an egregious racial
epithet. Smith v. Ill. Dept’t of Transp., 936 F.3d 554, 561 (7th Cir.
No. 21-1152 7
2019); Paschall, 28 F.4th at 815 (“No other word in the English
language so powerfully and instantly calls to mind our coun-
try’s long and brutal struggle to overcome racism and dis-
crimination against African-Americans.” (citation omitted)).
Because the N-word is egregious, we are not concerned with
the number of times the epithet is used. See Cerros v. Steel Tech-
nologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002); Hrobowski v.
Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004); Woods
v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022). A one-time use of
the epithet can in some circumstances warrant Title VII liabil-
ity. Paschall, 28 F.4th at 815.
Here, however, Scaife is unable to show that Chief Fogg’s
use of the N-word was sufficiently severe or pervasive when
considering the totality of the circumstances, which is our
charge in evaluating her claim. To begin, Scaife heard about
Chief Fogg’s slur from a co-worker. Although racial epithets
do not always have to be stated directly to a plaintiff to create
an objectively hostile work environment, see Gates v. Bd. of
Educ. of the City of Chicago, 916 F.3d 631, 638–39 (7th Cir. 2019),
remarks that are stated directly to the plaintiff weigh heavier
than when a plaintiff hears them secondhand. Dandy v. United
Parcel Serv., Inc., 388 F.3d 263, 271 (7th Cir. 2004). Second,
Scaife heard about Chief Fogg’s use of the racial slur several
months after it was uttered. Specifically, Chief Fogg made the
offensive statement in February, and Scaife did not find out
until September. Outside of this, there is no evidence that
Scaife ever heard Chief Fogg or anyone else make any racially
derogatory statements in her presence. Third, Scaife’s reliance
on Chief Fogg’s history of racial insensitivity with individuals
at his current and former job does very little to bolster the
race-based hostile work environment claim she has raised. See
Smith v. Ne. Illinois Univ., 388 F.3d 559, 567 (7th Cir. 2004).
8 No. 21-1152
While of course relevant, “second-hand harassment” is “not
as great as the impact of harassment” directed at Scaife her-
self. Id.Chief Fogg’s position is also critical to the analysis. Scaife
was understandably “devastated” when she learned that a
department lead used a racial slur to describe her, but Chief
Fogg did not have direct supervisory authority over her. We
have previously noted that a supervisor’s use of a racial slur
impacts the work environment far more severely than a co-
equal’s use. See Gates, 916 F.3d at 638 (citing Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)). This has typically re-
ferred to direct supervisors as opposed to non-direct supervi-
sors, like Chief Fogg. See id. (“[W]hen the harassment involves
such appalling racist language in comments made directly to
employees by their supervisors, we have not affirmed sum-
mary judgment for employers.”); see also Robinson v. Perales,
894 F.3d 818, 828 (7th Cir. 2018) (weight given to the fact that
offender was “a supervisor with direct authority over” em-
ployee). The conduct of a non-direct supervisor or a depart-
ment lead, like Chief Fogg, should undoubtedly be given
more weight than an employee’s co-equal. See id.; but see Nich-
ols v. Michigan City Plant Plan. Dep’t, 755 F.3d 594, 598 (7th Cir.
2014) (manager of a different department considered co-
worker to employee in another department). By virtue of his
position as Chief of the Police Service at Roudebush, his con-
duct has more weight in the analysis than a peer or co-equal.
At the same time, a harasser who has direct supervisory con-
trol over an employee continues to maintain more weight in
the analysis. When considered alongside the other factors, the
fact that Chief Fogg did not have direct supervisory control
over Scaife is yet another weakness in her claim.
No. 21-1152 9
Given the totality of circumstances, Scaife has failed to
show that Chief Fogg’s use of the N-word outside of her pres-
ence, eight months prior, was severe enough for a jury to find
that she experienced a hostile work environment based on
race.
2. Gender-based hostile work environment
Scaife faces a similar fate when it comes to her hostile work
environment claim based on gender: Scaife fails to provide
sufficient evidence that the alleged harassment was based on
her gender or that the alleged harassment was severe.
Scaife claims that Earp, her direct supervisor, threatened
her, requested that she break the law, and consistently yelled
at her—all creating a hostile work environment. Scaife, how-
ever, has failed to show that these incidents were based on
gender. Though the alleged conduct need not “consist of pres-
sure for sex, intimate touching, or a barrage of deeply offen-
sive sexual comments,” the “demeaning, ostracizing, or even
terrorizing” conduct must still be related to gender. Cf. EEOC
v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018) (no sum-
mary judgment for employer where a customer subjected em-
ployee to unwelcome romantic and sexual advances). The ev-
idence here does not suffice. Although Scaife testified that
Earp did not ask male classifiers to break the law and did not
yell at a male classifier who made mistakes, the record reflects
that Earp argued with men and women alike. See, e.g., Bermu-
dez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir. 1998)
(denying Title VII liability because supervisor “yelled at her,
as he yelled at other workers”). And the arguments Earp had
with both men and women were usually related to work is-
sues. See Scruggs v. Garst Seed Co., 587 F.3d 832, 841 (7th Cir.
2009) (no objective hostile work environment where
10 No. 21-1152
supervisor’s comments related to employee’s work habits or
alleged lack of sophistication, and he made these comments
to both male and female employees).
Moreover, even if Scaife could tie Earp’s conduct to her
gender, Scaife failed to provide sufficient evidence that Earp’s
conduct, though unprofessional, was severe or pervasive.
Scaife always worked at or above the legitimate expectations
of her employer, receiving an “Outstanding” or “Excellent”
on her annual performance rating, and the record does not
otherwise reflect that Earp’s conduct interfered with her work
performance. Performing work well is not dispositive; it is
only one factor among many in the calculus. See Robinson v.
Perales, 894 F.3d 818, 830 (7th Cir. 2018) (“[r]esilient employ-
ees who manage to perform well in trying circumstances may
still prove” a hostile work environment). However, it is a fac-
tor. See Alexander, 739 F.3d at 982. Additionally, there is no
evidence that Earp physically threatened or humiliated her.
In short, based on all the evidence, Scaife has failed to show
harassment based on gender or that the alleged conduct was
severe or pervasive.
3. Hostile work environment based on race and gender
Scaife maintains that her race-based and gender-based
claims must be considered in the aggregate, and that when
they are, she has shown a hostile work environment. We have
previously noted that “[c]ourts should not carve up the inci-
dents of harassment and then separately analyze each inci-
dent, by itself, to see if each rise to the level of being severe or
pervasive.” Costco, 903 F.3d at 626 (citation omitted). Thus,
when a plaintiff claims that he or she is suffering a hostile
work environment based on the conduct of supervisors and
coworkers, all instances of harassment by all parties are
No. 21-1152 11
relevant to proving that an environment is sufficiently severe
or pervasive. Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036,
1045 (7th Cir. 2000). But this does not mean that courts auto-
matically lump into the analysis the behavior of one type of
harasser (here, Chief Fogg) with the behavior of a different
type of harasser (here, Earp). See id. (“If a plaintiff pursues a
hostile work environment claim based on the behavior of a
supervisor, evidence of harassment by a coworker logically
must be tied somehow to the supervisor for it to be relevant
and admissible.”).
Even if we combine the incidents Scaife complained of in-
volving Chief Fogg and Earp, Scaife has failed to show a hos-
tile work environment. Viewing the record in the light most
favorable to Scaife, Earp threatened Scaife’s job and encour-
aged her to act illegally, but the evidence shows that this was
not related to her gender or sufficiently severe as to alter her
working conditions. After Scaife initiated the EEO process
against Earp, a co-worker informed her about unquestionably
offensive statements that Chief Fogg uttered eight months
prior. Even when considered in the aggregate, this is not
enough to show that “the workplace was sufficiently severe
or pervasive to alter the conditions of [Scaife’s] employment
and create an abusive working environment.” Harris, 510 U.S.
at 21. Scaife, therefore, has failed to show that she endured a
hostile work environment based on both race and gender.
B. Retaliation
Next, Scaife claims that the VA retaliated against her for
filing an EEO complaint. To prove retaliation under Title VII,
a plaintiff must show: (1) she engaged in statutorily protected
expression; (2) she suffered an adverse action by her em-
ployer; and (3) there is a causal link between her protected
12 No. 21-1152
expression and the adverse action. McKenzie v. Ill. Dep’t of
Transp., 92 F.3d 473, 483 (7th Cir. 1996). A plaintiff may offer
circumstantial evidence of intentional retaliation, “including
evidence of suspicious timing, ambiguous statements, behav-
ior toward or comments directed at other employees in the
protected group, and other bits and pieces from which an in-
ference of discriminatory intent might be drawn.” Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007). There
is no dispute that Scaife participated in a protected activity
when she initiated the EEO process regarding Earp and Chief
Fogg; where she stumbles is on the second and third elements.
An adverse action may be shown when there is a negative
performance review and paycheck shortages. See Boumedhi,
489 F.3d at 791–93. But a documented reprimand alone is not
an adverse action “[a]bsent some tangible job consequence.”
Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (finding that
two counseling statements, both of which stop short of disci-
plining but admonish employee to improve, did not consti-
tute an adverse employment action); see also Lucas v. Chicago
Transit Auth., 367 F.3d 714, 731 (7th Cir. 2004) (negative eval-
uation or admonishment not an adverse job action). Here, alt-
hough Scaife received a written counseling email shortly after
she initiated an internal EEO complaint, the email did not
come with a low performance rating or even a pay cut. It
therefore cannot, standing alone, constitute an adverse action.
See id.; Boumedhi, 489 F.3d at 791–93. Absent evidence that she
suffered an adverse action, Scaife cannot sustain a claim for
retaliation.
C. Constructive Discharge
Finally, Scaife argues that she was constructively dis-
charged from work. A plaintiff can typically show
No. 21-1152 13
constructive discharge in two ways. See Ziccarelli v. Dart, 35
F.4th 1079, 1091 (7th Cir. 2022) (citation omitted). Under the
first, a plaintiff must “demonstrate a discriminatory work en-
vironment even more egregious than the high standard for
hostile work environment.” Fischer v. Avanade, Inc., 519 F.3d
393, 409 (7th Cir. 2008). As we concluded above, Scaife cannot
demonstrate a hostile work environment claim based on race
and gender, so she is unable to prove a constructive discharge
claim that involves a higher standard.
Under the second, a plaintiff must show that she was
forced to resign because her “working conditions [became] so
intolerable that a reasonable person would have felt com-
pelled to resign.” Stamey v. Forest River, Inc, 37 F.4th 1220, 1225
(7th Cir. 2022) (citation omitted). Working conditions become
intolerable when an “employer acts in a manner so as to have
communicated to a reasonable employee that she will be ter-
minated, and the [] employee resigns.” Fischer, 519 F.3d at 409.
“In other words, constructive discharge [] occurs where,
based on an employer’s actions, ‘the handwriting [was] on the
wall’ and the axe was about to fall.” Id. (citation omitted).
Here, Scaife may have received a written counseling
email, but nothing in that email indicated to Scaife that her
time at the VA was coming to an end. Her job security was
not in peril, nor were her job prospects: she applied for and
accepted the same position, for the same pay, with a different
VA facility. See, e.g., Fischer, 519 F.3d at 410 (transfer not ma-
terially adverse when the new position allowed employee to
maintain her current title, salary, benefits, and primary re-
sponsibilities); Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004)
(no constructive discharge where there was no material
change in duties or benefits). Scaife cannot leave her old job
14 No. 21-1152
for a new one with the same employer, without any apparent
repercussion, and establish a constructive discharge claim ab-
sent evidence that she was forced out. Scaife has failed to
show constructive discharge.
III
For the reasons stated above, we AFFIRM the district court’s
judgment.