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.
Kanne, Rovner, and Hamilton, Circuit Judges.
ROVNER, CIRCUIT JUDGE.
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.
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.
who describes himself as biracial, began working as an
officer with the Department in 2008. 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. The note was
deemed inadequate and Perales directed Robinson to visit the
University's Health Services Department to obtain an
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). 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
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.
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
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
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.
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.
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
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.
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.
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
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).
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 ...