Title VII Violation

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7^th Circuit Court of Appeals

Case Name: Fred Gates v. Board of Education of the City of Chicago

Case No.: 17-3143

Officials: MANION, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Title VII Violation

Plaintiff Fred Gates testified that his direct supervisor, Rafael Rivera, addressed him with the N‐word twice, and once threatened to write up his “black ass.” The district court granted the employer’s motion for summary judgment on Gates’s claim for a racially hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐2. In granting summary judgment for the defendant‐employer, the district court noted that Gates faced a high bar, “as ‘[t]he workplace that is actionable is one that is ‘hellish.’” Gates v. Board of Education of the City of Chicago, No. 15‐CV‐1394, 2017 WL 4310648, at *13 (N.D. Ill. Sept. 28, 2017), quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997) (alteration in original). The court ultimately decided that Rivera’s comments were not severe or pervasive enough to rise to the level of a hostile work environment, an adverse employment action that could entitle Gates to relief under Title VII. Id. at *15.

Gates is entitled to a trial on his hostile environment case, but he waived or forfeited all of his remaining claims. He argues, though, that he did not forfeit his Title VII retaliation claim in the district court. We disagree. The Board’s motion sought summary judgment on all claims. In opposing summary judgment in the district court, Gates failed to assert that he was subject to a hostile work environment in retaliation for complaining about the discrimination he says he suffered. He did not specifically argue that Rivera or Principal Brandt created a hostile work environment because he reported their discriminatory conduct to Jacob‐El or the EEOC. Gates did argue that he was retaliated against, but only in the form of not being promoted and being written up by Rivera. In his summary judgment memorandum, Gates also discussed two of the instances of racially‐harassing conduct that he used to support his hostile work environment claim—the incident in which Rivera threatened to write up his “black ass” and the library incident in which Rivera used the N‐word. However, he never specifically argued that this conduct was retaliatory. Perhaps Gates could have linked those incidents to his claims of retaliation, but he did not. The district court was not required to address a claim or theory that plaintiff did not assert.

The district court’s grant of summary judgment on Gates’s hostile work environment claim is REVERSED and the case is REMANDED for further proceedings on that claim consistent with this opinion. In all other respects, the judgment of the district court is AFFIRMED.

Reversed and Remanded in part. Affirmed in part.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.