After transferring positions, 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 summary judgment, the district court ruled in favor of the VA. The district court concluded that although Chief Fogg's onetime use of a racial epithet was highly offensive and unquestionably uncivil, it was not enough to trigger Title VII liability. The district court also concluded that Scaife could not show a hostile work environment given the incidents she described with her supervisor. Scaife filed an appeal.
Affirmed — Scaife failed to show that the alleged conduct was sufficiently severe or pervasive to alter the conditions of Scaife's employment and create an abusive working environment.
A. Hostile Work Environment
Scaife first argues that she provided enough evidence on both her race-based and gender-based hostile work environment claims to survive summary judgment, either individually or in the aggregate. Title VII prohibits employers from discriminating against employees based on race or gender. 42 U.S.C. § 2000e-2(a)(1). A work environment is hostile under Title VII "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (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 harassment 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 person would deem it to be; (3) whether it is physically threatening 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 "stupid 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. 2019); Paschall, 28 F.4th at 815 ("No other word in the English language so powerfully and instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination 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 Technologies, 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 liability. 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). While of course relevant, "second-hand harassment" is "not as great as the impact of harassment" directed at Scaife herself. 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 coequal's use. See Gates, 916 F.3d at 638 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). This has typically referred to direct supervisors as opposed to non-direct supervisors, 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 summary 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" employee). The conduct of a non-direct supervisor or a department lead, like Chief Fogg, should undoubtedly be given more weight than an employee's co-equal. See id.; but see Nichols v. Michigan City Plant Plan. Dep't, 755 F.3d 594, 598 (7th Cir. 2014) (manager of a different department considered coworker to employee in another department). By virtue of his position as Chief of the Police Service at Roudebush, his conduct has more weight in the analysis than a peer or co-equal. At the same time, a harasser who has direct supervisory control 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.
Given the totality of circumstances, Scaife has failed to show that Chief Fogg's use of the N-word outside of her presence, 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, however, has failed to show that these incidents were based on gender. Though the alleged conduct need not "consist of pressure for sex, intimate touching, or a barrage of deeply offensive 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 summary judgment for employer where a customer subjected employee to unwelcome romantic and sexual advances). The evidence 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., Bermudez 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 issues. See Scruggs v. Garst Seed Co., 587 F.3d 832, 841 (7th Cir. 2009) (no objective hostile work environment where 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 employees who manage to perform well in trying circumstances may still prove" a hostile work environment). However, it is a factor. 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 incidents of harassment and then separately analyze each incident, 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 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 automatically 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 involving Chief Fogg and Earp, Scaife has failed to show a hostile work environment. Viewing the record in the light most favorable to Scaife, Earp threatened Scaife's job and encouraged 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, 114 S.Ct. 367. Scaife, therefore, has failed to show that she endured a hostile work environment based on both race and gender.
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding hostile work environment claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.