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Robinson v. Perales

United States Court of Appeals, Seventh Circuit

July 2, 2018

Anthony Robinson, Plaintiff-Appellant/ Cross-Appellee,
Alfred Perales, Defendant-Appellee/ Cross-Appellant, and Timothy Spangler, Plaintiff-Appellant, and Board of Trustees of The University of Illinois, et al., Defendants-Appellees.

          Argued January 5, 2018.

          Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:13-cv-04859 - Harry D. Leinenweber, Judge.

          Before Kanne, Rovner, and Hamilton, Circuit Judges.


         Anthony Robinson and Timothy Spangler, police officers employed by the University of Illinois at Chicago Police Department ("Department"), brought claims against the University of Illinois Board of Trustees and four individuals for race-based discrimination, harassment and retaliation. The district court disposed of all but one of the claims through summary judgment. Robinson then prevailed at trial on a claim for retaliation against his supervisor, Alfred Perales, recovering nominal damages. The district court denied Robinson's motion for a new trial and to alter the judgment. The court also declined to award attorneys' fees to Robinson and denied Perales's motion for judgment as a matter of law. Robinson, Spangler and Perales all appeal. We affirm in part and vacate and remand in part.


         "Once a jury has spoken, reviewing the record as a whole, 'the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determina- tions or weigh the evidence.'" Gracia v. SigmaTron Int'l, Inc., 842 F.3d 1010, 1018 (7th Cir. 2016) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). We discuss this standard more fully below and to the extent that we are considering the facts as found at trial, that is the standard we employ. The appeal also challenges the grant of summary judgment on two counts, and for that purpose we similarly construe the facts in favor of the nonmoving parties, drawing all reasonable inferences in their favor.

         Robinson, who describes himself as biracial, began working as an officer with the Department in 2008.[1] Perales, a lieutenant who is Hispanic, was his direct supervisor. Perales reported to Division Commander Frank Cappitelli (who is white), and Cappitelli reported to Chief John Richardson (who is African- American). In late January 2012, Perales asked Robinson why he did not shave his facial hair in compliance with the Depart- ment's grooming policy. Robinson had brought in a doctor's note seeking an exemption from the shaving requirement because of a skin condition.[2] The note was deemed inadequate and Perales directed Robinson to visit the University's Health Services Department to obtain an exemption.

         In mid-February, Robinson met with Perales again to discuss the shaving issue. Lieutenant Eric Hersey, who is African-American, was also present at this meeting. Perales decided to tell Robinson that his inquiry into the shaving requirement was not racially based and so he described to Robinson his past experiences with racism:

[Robinson] came and sat at my desk and basically said that he felt that I was picking on him because of his ethnicity, that he was African American, at which point I related to him, "Stop right there. Let me tell you how things have been in my career." And I related a story to him about how early on in my career I was approached by both UIC officers and Chicago police officers, and I refer to it as the "good-old-boy network," and they used to tell me- and I used the N word, I used the word "nigger," although it's very offensive to me to even repeat it, I used it in the context to say that officers used to say, "We don't back those N word-we don't hang out with those guys, you shouldn't do that."
And my response to him, and I'm speaking to Officer Robinson, was that I used to tell them, meaning the UIC and CPD officers, that would use that type of language that I didn't condone it, that I didn't appreciate them talking like that around me. I considered myself to be a Hispanic, also a minor- ity, and it was offensive to me then. So I then related to Officer Robinson, "So, please, Anthony, don't put that moniker on me. That's not what I'm about."

R. 61-4, at 103-04 (Deposition of Alfred Perales).[3] In Robinson's version of this conversation, Perales recounted that Chicago police officers used to say to him that "We don't back n----rs up, you know, we don't help n----rs," and Perales claimed that he told those officers, "That's not me." Tr. at 65. Robinson denied that he was the person who raised the issue of racism, instead asserting that Perales gave this speech gratuitously after Robinson asked why his doctor's note was insufficient proof of his condition.

         After the meeting, Lieutenant Hersey, who was shocked by Perales's use of this "ugly" epithet, told Perales that it was inappropriate for a supervisor to use that word in that setting. Hersey did not report the incident because he assumed that Perales was in "report-writing mode," where officers some- times have to repeat the exact words used by others in a report or in a conversation with a state's attorney. But Hersey believed that Perales, as a supervisor, should not have used that word with a subordinate in this situation.

         Unfortunately, despite Perales's denial that he was the kind of racist who used the word "n----r," Robinson presented evidence that Perales was that kind of racist. Several weeks after the February discussion, in March 2012, Perales again called Robinson to his office. Robinson told Perales that he had scheduled a doctor's appointment, and then invited Perales to look at the bumps and scars on his face caused by shaving. Perales responded, "[O]h, yeah, I see it, it must be the n----r in you." Another officer, Stephen Pawlik, who was standing in the hallway, overheard Perales's comment.

         Although Robinson did not complain about Perales's first use of this slur, in mid-March he submitted a grievance through the Metropolitan Alliance of Police about the second occurrence. He was then asked to file a sworn complaint as part of the UICPD disciplinary process, and he did so on May 29, 2012. Internal Affairs completed its investigation into the incident in June, and recommended a five-day suspension for Perales. Chief Richardson instead imposed a twenty-day suspension.

         During the investigatory period and after Perales returned from his suspension, Robinson noticed that Perales was subjecting him to a high level of scrutiny and following him while he was on duty. Spangler, the watch commander for Robinson's shift, and Pawlik, Robinson's frequent patrol partner, also noticed that Perales was keeping a closer watch on Robinson than he was on other officers. Shortly after Robinson filed his grievance, Perales and Hersey directed Spangler to "go against" Robinson and Pawlik and "get some shit on them and write them up." They also told Spangler, who had authority as a sergeant and commander of the third watch, not to give Robinson and Pawlik anything they wanted or asked for such as time off or special assignments. Hersey said that Spangler had to take action so that Perales would seem uninvolved. Spangler replied that he would treat all officers the same, and he did not comply with the directive. Another officer reported to Robinson that Perales told the officer that Robinson and Pawlik needed to "watch [their] asses." Robin- son reported this remark in a second grievance and filed a complaint with Internal Affairs asserting that Perales had threatened him. Perales was found not to have engaged in any wrongdoing but was ultimately reassigned to another division where he was no longer Robinson's direct supervisor. Accord- ing to Robinson, Perales was transferred to Internal Affairs, the division charged with investigating the kinds of complaints that Robinson had lodged against Perales. In late 2012, Robin- son was passed over for a promotion to sergeant.

         After refusing to take action against Robinson and Pawlik, Spangler received two unwarranted notices of infraction under the disciplinary process, each of which put him in fear of losing his job. The first notice was rescinded and, after Spangler filed a grievance about it, Chief Richardson concluded that the notice of infraction was unfounded. The Chief also decided that the second notice was "not sustained." Following these incidents, Spangler was bumped out of his position as third watch commander by Cappitelli, who first discussed his decision with Perales. Spangler filed both a grievance and charge of retaliation related to his demotion from the com- mand position on the third watch.

         Robinson and Spangler filed a nine-count complaint against Perales, Hersey, Cappitelli, Richardson, and the Board of Trustees of the University of Illinois. Robinson asserted claims of racial harassment (Count I), racial discrimination (Count II), and retaliation (Count III) against the Board under Title VII and against the individual defendants under section 1981.

         Robinson also alleged violation of his equal protection rights (Count IV) under section 1983 against the individual defen- dants. Spangler brought claims for retaliation (Count V) and race discrimination (Count VI) against the Board under Title VII and against the individual defendants under section 1981. Spangler also asserted a violation of the equal protection clause (Count VII) against the individual defendants under section 1983, and a claim under the Illinois Whistleblower Act (Count VIII) against all the defendants. Finally, Robinson brought a claim for retaliation under the Family and Medical Leave Act (Count IX) against all defendants. The defendants moved for summary judgment and the district court granted judgment in favor of the defendants on all claims except for Robinson's claim against Perales and the Board for retaliation. That claim went to trial, where the jury found against Perales and in favor of the Board, awarding Robinson nominal damages of one dollar. The district court subsequently denied Robinson's motion for a new trial and to alter the judgment. The court also declined to award attorneys' fees to Robinson and denied Perales's motion for judgment as a matter of law. Robinson, Spangler and Perales all appeal.


         On appeal, Robinson contends that the court erred when it granted summary judgment in favor of the defendants on his claim for discrimination based on hostile environment. Robinson also asserts that the court erred during the trial when it found that the Board could escape liability for the retaliation committed by Perales. Robinson further argues that the jury was provided with improper verdict forms and that the court incorrectly concluded that he was not entitled to attorneys' fees. Spangler challenges the district court's grant of summary judgment in favor of the defendants on his claim for retaliation. Perales cross-appeals in order to challenge the district court's refusal to grant him judgment as a matter of law on Robinson's retaliation claim.


         Robinson sued both Perales and the Board for retaliation. The jury found against Perales but for the Board on this claim. Robinson argues on appeal that, because Perales was a supervisor, a finding of liability for Perales requires a finding of liability against the Board, citing Vo l k v. Coler, 845 F.2d 1422 (7th Cir. 1988), in support. That case noted that an employer is strictly liable for harassment by supervisory personnel who have the power to hire, fire, or promote, and that an employer is liable for harassment by nonsupervisory employees only when it has actual or constructive notice of the harassment. 845 F.2d at 1436. See also Va n c e v. Ball State Univ., 646 F.3d 461, 469-70 (7th Cir. 2011), aff'd, 570 U.S. 421 (2013) (employers are strictly liable for harassment inflicted by supervisors, where supervisors are persons with power to directly affect the terms and conditions of the plaintiff's employment primarily through the authority to hire, fire, demote, promote, transfer, or discipline the employee, but employers can assert an affirma- tive defense when the harassment does not result in a tangible employment action.).

         But Robinson did not request any instructions allowing the jury to impute liability against Perales to the Board. There was no instruction, for example, telling the jury how to decide if Perales met the definition of "supervisor." Nor did any instruction direct the jury to hold the Board liable if it found against Perales and determined that Perales met the definition of "supervisor." Instead the jury was instructed to consider the liability of each defendant separately. Special verdict forms were presented for each defendant, asking the jury, among other things, whether Robinson proved by a preponderance of the evidence that he suffered a materially adverse employment action by each defendant. The jury answered "yes" to that question on the verdict form for Perales and "no" on the verdict form for the Board. Robinson's failure to present to the jury this theory of strict liability for the employer amounts to a waiver of the claim. Fox v. Hayes, 600 F.3d 819, 841-42 (7th Cir. 2010) (plaintiff waived theory of liability on appeal where the theory was not raised in the district court and the jury was not instructed on it).

         If that failure to request appropriate jury instructions and the failure to object to the instructions and verdict forms employed were not enough to constitute a waiver of this issue, there is more. During ...

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