Disclaimer:
The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
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Court addresses
issue of whether white employee can sue (as a bystander) for racial
harassment directed towards African-American employees.
Walker v. Mueller
Industries, Inc., 408 F.3d 328 (7th Cir. May 11, 2005) - This is a 42 U.S.C.
Section 1981 and Title VII race discrimination action alleging hostile work
environment and retaliation. Dennis Walker, who is white, was a warehouse
worker. He was also a union steward, and in that role, he complained to the
warehouse manager, Deborah Jones, that African-American employees were being
subjected to racial discrimination at the warehouse. According to Walker,
after he alerted management to this problem, the company began to retaliate
against him by excluding him from more desirable work assignments and a
supervisory position, and by subjecting him to workplace harassment. The
district court granted summary judgment for the defendants. On appeal, the
Seventh Circuit first notes that Walker is not complaining that he was
subjected to discrimination based upon his race. The Seventh Circuit also
notes that an earlier opinion from this Circuit all but closes the door on
the notion that an employee who observes workplace hostility but is not a
member of the class of persons at whom the harassment was directed may bring
a derivative claim for the harassment. But instead of dismissing Walker's
derivative claim on the basis that it does not state a claim, the Court
dismisses the claim for lack of proof that the harassment "poisoned the
working atmosphere" for Walker. In other words, Walker failed to show that
the conduct was so offensive to him (as a third-party) as to render the
workplace hostile not only for him but for any reasonable employee who
likewise was a bystander rather than a target of the harassment. Next,
Walker asserts that he was retaliated against by being assigned the job of
"order picking," which is the most physically demanding and undesirable
assignment for warehouse workers. But even if the Court assumes that a punitive
assignment to the least desirable of legitimate tasks could support a
retaliation claim, the timing of Walker's assignment is inconsistent with
the notion that it was retaliatory. Walker was performing this job before he
ever complained of race discrimination. Next, Walker asserts that he was
retaliated against by being issued warnings unrelated to his actual job
performance. However, Walker failed to show that these warnings rose to the
level of an adverse employment action. Next, Walker asserts that he was
retaliated against by not being assigned the lead person position. The lead
person takes over for the supervisor if she is not present. But Walker
failed to show that the denial of the lead person position constituted an
adverse employment action; and even if it did constitute an adverse
employment action, he failed to establish a causal link between his
protected activity and the denial of the lead person position. Finally,
Walker asserts that he was retaliated against by being subjected to a
hostile work environment. He asserts that his supervisor spied on him and
whistled tunes like "This Old Man" and "Three Blind Mice" in his presence.
He also asserts that some of his co-workers called him derogatory names
(e.g. "f*cking Polack") and threatened to harm him. The Seventh Circuit
holds that the supervisor's conduct does not constitute actionable
harassment. With respect to the alleged co-worker harassment, Walker has not
presented sufficient evidence of negligence by the company so as to allow
the co-worker harassment to be attributed to the company for purposes of
liability. But more importantly, Walker has not shown that the company or
his supervisor handled these incidents in a materially different way than
they addressed comparable conduct -- and this showing would be key to
establishing a prima facie case of retaliation by the indirect method. Click
here to see actual case.