Undoubtedly, most, if not all, laypersons, and even most lawyers, who read the title of this post will instantly wonder how any court could not find a hostile work environment claim to have merit when a noose is discovered in the workplace by an African-American employee. I often find myself in very difficult phone call consultations with people when I have to hear their very difficult work situations and then have to explain the law to them. Indeed, some of these callers hang up on me as if I do not know what I am talking about and they do not want to hear it anymore. However, as this case highlights, plaintiffs in discrimination, harassment and hostile work environment cases, have very difficult burdens to meet.
The plaintiff, Jerome Cole, worked for Northern Illinois University in the Building Services Department since 1998. Cole is African-American and alleges that, beginning in 2009, he experienced race discrimination, retaliation, and a hostile work environment based on his race. He sued the university's board of trustees and eleven (11) individuals under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment.
In 2009, Cole because a sub-foreman. In 2011, Cole claims he was promoted to foreman (the defendants disputed this, but for purposes of summary judgment, Cole's assertion was taken as true). At all times relevant, Cole was the only African-American foreman or sub-foreman in the department. Cole alleged that his promotion to sub-foreman marked the start of a "laundry list of events" he claims amounted to unfair and discriminatory treatment. Cole was demoted in 2012 because the acting superintendent learned that Cole and Ruth Stone, an acting sub-foreman in the same department, had been promoted without attention to proper procedures.
In mid-November 2012, Cole discovered a hangman's noose in his work area. Cole threw the noose away, but inexplicably, the next day he discovered the same or possibly a second noose outside the building. A department sub-foreman, John Holmes, told Cole that he, and two others found the noose earlier in an office on the other side of Cole's new work area. Cole called two police officers he knew for advice and was told to "keep his cool" to try to "smoke out" the perpetrator. Cole took the noose to the university police department. He later emailed one of the Building Services supervisors, Richards, and told her that he had discovered a noose and taken it to the police.
Richards took Cole's email to the police station and turned it in to the acting superintendent and spoke to two other university officials about the incident. By February 2013, the university police had begun an investigation. A detective interviewed Holmes and Cole but the detective was then told by his supervisor to stop the investigation. The person who left the noose in the break room was never identified. The police investigation, which ultimately proved fruitless, was the only substantial step the university took after the noose incident. Nothing in the record suggested that the noose incident was repeated after that.
7th Circuit Finds No Hostile Work Environment
The district court granted the defendants' motion for summary judgment, rejecting the hostile work environment claim, holding that (1) most of the hostile events were not based on Cole's race; (2) Cole had not produced evidence that the noose was intentionally left for him to find; and (3) Cole had not shown a basis for employer liability.
Harassment sufficiently severe or pervasive to alter the terms and conditions of employment is actionable under Title VII as a claim of hostile work environment. To prove a claim for hostile work environment based on race, an employee must show: (1) he was subject to unwelcome harassment; (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 creating a hostile or abusive situation; and (4) there is a basis for employer liability. Thus, as I mentioned at the outset of this article, a plaintiff has a large burden to meet and a lot of things to prove to meet their burden.
The crux of Cole's hostile work environment claim is the discovery of the noose. The 7th Circuit found that the first and second prongs were easily met as the noose undoubtedly qualifies as "unwelcome harassment" and that given its disturbing history and status as a symbol of racial terror, the Court had no difficulty assuming that the harassment could be treated as based on race.
The Court agreed with the district court that the record in the case does not support a reasonable inference that most of the hostility Cole encountered was connected to his race as there was almost no evidence of racial animus in the record: no hostile or ambiguous remarks, no racial slurs, nothing beyond the notable exception of the noose itself and the later secondhand report of a racist sign posted somewhere, at some unknown time by some unknown person.
With respect to the third prong, the Court held that they were hesitant to agree with the district court when they found that Cole count not produce evidence that the noose had been displayed or intentionally left for him to find. The Court noted that a noose on display is generally likely to have more of an impact on employees than one hidden away in a co-worker's desk. Thus, the Court decided not to lay down firm rules for when a noose in the workplace is or is not severe enough to be actionable.
No Employer Liability
The Court did find that Cole failed to present evidence to support the fourth element of his claim: a basis for employer liability. Employers are strictly liable for supervisor harassment, but when a plaintiff claims that co-workers are responsible for the harassment, "he must show that his employer has 'been negligent either in discovering or remedying the harassment.'" There was no evidence that a supervisor was involved in leaving the noose, so Cole had to present evidence allowing a reasonable jury to find that the university was negligent--which means in this context that it failed to take "prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring."
A prompt investigation is the first step toward a reasonable corrective action. The undisputed facts in this case, the Court held, show that Cole notified a supervisor of the discovery of the noose, the supervisor spoke to him about it and delivered her notes of the incident to the university police. The supervisor also reported the incident to a couple university officials. The Court held that in these circumstances, it was reasonable for the administration, having involved the university police, to leave the investigation to them.
The Court was also careful to make it clear that they were not holding that an employer necessarily fulfills its responsibility to take appropriate corrective action if it has reported an incident to some other party--such as university police. The question is whether the employer took corrective action "reasonably likely" to prevent harassment from recurring.
The Court did conclude by stating that, "bad 'joke' or not, the presence of a hangman's noose in the workplace is not acceptable. But based on the circumstances here, including Cole's reaction and the fact that the Building Services Department turned the matter over to the police for investigation...we see no basis for employer liability in this case."
Plaintiff's Race Discrimination and Retaliation Claims Likewise Failed
The 7th Circuit also upheld the district court's granting of summary judgment for the defendants on Cole's disparate treatment and retaliation claims finding that Cole presented no direct or circumstantial evidence of disparate treatment based on race and that Cole had not engaged in protected activity to survive a retaliation claim. While these claims were not the highlight of this case, it is important to note that this decision cites a recent significant case, Ortiz v. Werner Enterprises, Inc., No. 15-2574, - F.3d -, -, 2016WL 4411434, at *4 (7th Cir. Aug. 19, 2016), which is a case that held that "evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself--or whether just the 'direct' evidence does so, or the 'indirect' evidence." I blogged about this case previously.
The case is Jerome Cole v. Board of Trustees of Northern Illinois University, et al., No. 15-2305 (7th Cir. Sept. 27. 2016).