Michelle Strickland v. Thomas Dart

I

Strickland has been a correctional officer with the Sheriff's Office since 2005. In 2015, she was assigned to the Transportation Unit, where she worked with Sergeant Brad Sandefur.¹Shortly after joining the Unit, Strickland was injured, and she took leave from June 2015 through September 2017. Upon her return, she continued to work in the Unit with Sandefur. Strickland, a black woman, alleged that, during her time in the Unit, Sandefur (a white man) and others subjected her to a hostile work environment based on her race and gender. Strickland provides the following evidence in support of her claims.

As to her gender claim, Strickland points to several comments by or exchanges with Sandefur that implicate gender. In the Spring of 2015, Strickland made tea for Sandefur and suggested he put lemon in it; Sandefur replied that "no woman is going to tell me what to do." Next, in September 2018, an officer asked to see a jacket Strickland was wearing, and Sandefur suggested the officer take charge, take the jacket, and "show her who is the man." And in November 2018, Strickland asked Sandefur about a staffing schedule for a "female rotation," and Sandefur responded that he had

"no time for stupidness." Strickland also says she once overheard Sandefur telling another officer that the "MeToo" movement was unfair to men and that women should

"get over it." Similarly, she overheard Sandefur several times stating that women should honor men and obey their husbands. And at some point, another Sergeant (Edwards) told Strickland to come brush his beard because "I'm the man."

Strickland also points to comments that implicate race. In January 2018, Strickland offered condolences to Sandefur, whose brother was extremely ill. Sandefur told Strickland that his brother (who is white) was "the worst [n-word] that he knows."

A year later, Sandefur remarked, "It sounds like you are getting sick girl." (Strickland contends that "girl" is racially charged.) That same month, at roll call, Sandefur told officers to take care when dealing with people who may be upset about the upcoming verdict in the Jason Van Dyke trial.²A white officer asked Strickland if she knew who would be upset, and after Strickland said she didn't, the officer responded, "black people." Sandefur told the officer to "stop trying to start something." Then, in February

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2019 during Black History Month, Sandefur stated during roll call that he "did not care if it was Black History Month or Chinese History Month and what matters is that they are all blue." And, at some point, another officer told Strickland that he had previously (before Strickland joined the Unit) heard Sandefur use the n-word during roll call. Specifically, Strickland says the officer relayed that Sandefur said "words to the effect that" he did not understand "why white people cannot use [the n-word]" or why black people were "eclipsing white people." Sandefur explained in his deposition that he was telling officers not to use the n-word, and the officer who heard it confirmed in his deposition that he did not think Sandefur was using the term in reference to anyone. More broadly, Strickland did not provide evidence that she had heard other uses of the n-word beyond those occasions described above, even though Sandefur testified that the n-word and other profanities were used "on a rampant basis" throughout the Office. Strickland highlights a handful of other ambiguous comments, but we do not list them here because they are so weakly tied to race or gender, if at all, that they do not aid Strickland's argument against summary judgment.

Strickland says that all of these comments and interactions caused her "severe emotional distress" and that she dreaded going to work. But she did not provide evidence that her work performance was affected.

On July 10, 2018, Strickland filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging race and gender discrimination and listing many of the same incidents discussed above.³Counsel at the Sheriff's Office appears to have received notice of the charge a little more than a week later, though the record is silent about what action (if any) the Office took in response to this notice.

On February 5, 2019, Strickland filed a complaint with the Office of Professional Review ("OPR") detailing Sandefur's comment about Black History Month. Two days later, Strickland was interviewed.⁴And about one month later, Sandefur was

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transferred to another post. OPR looked into Strickland's complaint, though Strickland says the investigation was a "sham" because the investigator did not interview Strickland or the witnesses she had listed. The investigation ended with findings that Strickland's allegations against Sandefur were not sustained. In March 2019, Strickland received her right-to-sue letter from the EEOC. About a month later, as relevant to this appeal, she initiated this lawsuit against Sandefur, Sheriff Thomas Dart, and Cook County, alleging that she had been subjected to a hostile work environment based on her race and gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. At summary judgment, the district court limited its analysis only to discriminatory conduct by Sandefur and Edwards because Strickland had mentioned only them in her charge. The court also concluded that no reasonable jury could find the conduct complained of to be so severe or pervasive that it altered the conditions of Strickland's employment. In doing so, the court found that Sandefur was not Strickland's supervisor for Title VII purposes, in part because Strickland had waived any argument to the contrary, and in part because there was no evidence Sandefur had the authority to discipline Strickland. Finally, the court found in the alternative that the evidence failed to establish employer liability.

II

Strickland now appeals, asserting three errors: The district court erred in limiting its analysis to the conduct and individuals specifically mentioned in her EEOC charge; it erred in finding that the harassment was not severe or pervasive enough to alter her conditions of employment; and it erred in finding insufficient evidence of employer liability.

We'll assume that all the conduct described above should be considered even though some of the comments or interactions were not explicitly discussed in Strickland's EEOC charge. We also acknowledge that there may be a basis for employer liability. The Sheriff's Office was on notice of Strickland's concerns by July 2018 (when it received notice of Strickland's EEOC charge), and it appears the Office did nothing in response to that notice. Nevertheless, we conclude that the conduct here—though it days after Strickland filed her complaint with OPR and some seven months after she filed her EEOC charge.

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included some inappropriate and juvenile conduct—was not severe or pervasive enough to render Strickland's work environment hostile.

"We review the district court's grant of summary judgment de novo." EEOC v. Vill. at Hamilton Pointe LLC, 102 F.4th 387, 400 (7th Cir. 2024). To overcome summary judgment, Strickland needed to show there was a genuine dispute of material fact that

(1) she was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by Title VII, such as race or gender; (3) the harassment was so severe or pervasive that it altered the conditions of her employment; and (4) there is a basis for employer liability. Id. at 400-01; F ED. R. CIV. P. 56(a).

We focus on the third requirement. To determine whether there is sufficient evidence for a jury to conclude that the alleged conduct was sufficiently severe or pervasive to alter the conditions of employment, we consider "(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." Scaife v. U.S. Dep't of Veteran Affs., 49 F.4th 1109, 1116 (7th Cir. 2022) (citing Lambert v. Peri Formworks Sys., 723 F.3d 863, 868 (7th Cir. 2013)). Statements made by those without "direct supervisory authority" over the plaintiff are less likely to alter the conditions of employment than those made by the plaintiff's direct supervisors. See id. at 1116-17. Statements not directed at the plaintiff also carry less weight in the evaluation. Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 902 (7th Cir. 2018). And the "weakest evidence" are statements the plaintiff was told that someone else made—that is, hearsay. Id.

To start, Strickland has never argued (and has thus waived any argument) that Sandefur (or any other alleged harasser) was her supervisor for purposes of Title VII. So we approach this as co-worker harassment, which changes the calculus—"a harasser who has direct supervisory control over an employee continues to maintain more weight in the analysis." Scaife, 49 F.4th at 1116-17 (noting that the position of the harasser is "critical to the analysis" and the lack of supervisory control was "another weakness in [plaintiff's] claim"). Additionally, none of the comments involve physical threats or humiliation, and Strickland did not provide evidence that any of the

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comments unreasonably interfered with her work performance, so those factors weigh against her. See id. at 1117-18.

Turning first to the claim of gender-based harassment, we conclude that the remaining factors do not tip the scales in Strickland's favor. For starters, the comments about the "Me Too" movement and women honoring men were merely overheard by Strickland, not directed at her. See Russell v. Bd. of Trs. of Univ. of Ill. at Chi., 243 F.3d 336, 343 (7th Cir. 2001) ("When harassing statements are directed at someone other than the plaintiff, the impact of such second hand harassment is obviously not as great as the impact of harassment directed at the plaintiff." (citation modified)); Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005) (giving lesser weight to comments "simply made in [plaintiff's] presence" but not directed at him); Smith v. Ne. Ill. Univ., 388 F.3d 559, 566- 67 (7th Cir. 2004) (concluding that no hostile work environment existed where the offensive comment was overheard and not about plaintiff). And the comments made to or about Strickland—Sandefur's remark that "no woman" could tell him what to do, his comment about "stupidness" in response to her inquiry about the female rotation, and the comments involving the jacket and the beard—are rude, boorish, and ignorant, but they are not the "types of comments that render a workplace unworkable." Ezell, 400 F.3d at 1048. After all, "Title VII is not a general code of workplace civility, nor does it mandate admirable behavior." McKenzie v. Milwaukee Cnty., 381 F.3d 619, 624 (7th Cir. 2004) (citation modified). Finally, these comments were too "few and far between" to be considered pervasive. See Russell, 243 F.3d at 344.

We reach a similar conclusion with respect to Strickland's claim of race-based harassment. To be sure, Sandefur's comment calling Strickland "girl" (which Strickland maintains is racially charged) and the comments made in Strickland's presence about Black History Month and black people being upset about the Van Dyke verdict are inappropriate and insensitive. But they are not so objectively offensive as to constitute actionable conduct, especially where Strickland's work performance was unaffected. The comments that give us the most pause are those in which the n-word was used. First—and the only time Strickland heard the word used at the workplace— Sandefur told Strickland that his brother (who is white) was the "worst [n-word] he knows." Because the n-word is so reprehensible, a single use by a supervisor to an employee can be enough to support a hostile work environment claim. See Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 638-39 (7th Cir. 2019) (collecting cases and noting that "when the harassment involves such appalling racist language in comments made directly to employees by their supervisors, we have not affirmed summary judgment for

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employers"); Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) ("Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as [the n- word] by a supervisor in the presence of his subordinates." (citation modified)). But again, because Strickland waived any argument that Sandefur was her supervisor, we view this as co-worker harassment. And in cases involving co-workers, more is typically needed. See, e.g., Gates, 916 F.3d at 640-41 (reversing the entry of summary judgment for the employer but noting that the outcome would have likely been different "[i]f the only evidence of racial harassment [plaintiff] had was a co- worker's use of the three epithets"); Nichols v. Mich. City Plant Plan. Dep't, 755 F.3d 594, 601 (7th Cir. 2014) (concluding that one use of n-word and several other incidents of harassment by co-workers not enough to overcome summary judgment); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 552 (7th Cir. 2002) (holding that one use of n-word and several other incidents of "mildly offensive" conduct by co-workers not enough to overcome summary judgment).

True, here we have a second comment, but this evidence is hearsay: Another officer told Strickland that Sandefur used the n-word during roll call. We of course do not discount this evidence entirely—it is possible it could be admitted under hearsay exceptions. But we have characterized comments like these as "[t]he weakest evidence"

plaintiffs can present. Johnson, 892 F.3d at 902; see Yuknis v. First Student, Inc., 481 F.3d 552, 555-56 (7th Cir. 2007) ("Offense based purely on hearsay or rumor . . . is less credible, and, for that reason and also because it is less confrontational, it is less wounding than offense based on hearing."). And we have "caution[ed] against elevating workplace rumors to evidence of a hostile work environment." Johnson, 892 F.3d at 903. Beyond that, this incident occurred at least a year before Strickland started working in the Transportation Unit. See Scaife, 49 F.4th at 1116 (considering that the plaintiff heard about the use of a racial slur "several months after it was uttered"); see also Whittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005) (holding that no hostile work environment existed where sexist comments were made outside of plaintiff's presence and "there [was] no evidence that she was aware" of the remarks at the time they were made).

Finally, we acknowledge Sandefur's testimony about the "rampant" use of the n- word and other profanities, but there is nothing in this record to show that Strickland heard or had any awareness of the n-word being used beyond the incidents she described involving Sandefur—she did not mention widespread use of the n-word in

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her EEOC charge, in her complaints in the district court, or in her deposition. So there is insufficient evidence to infer that she knew racist language was being regularly used or that she understood her environment as being one in which this language was pervasive. See Johnson, 892 F.3d at 903-04; see Yuknis, 481 F.3d at 555 ("The more remote or indirect the act claimed to create a hostile work environment, the more attenuated the inference that the worker's working environment was actually made unbearable."); see also Russell, 243 F.3d at 343 (concluding that no hostile work environment existed where most statements were not directed at plaintiff and those that were "were few and far between," occurring a handful of times over six months).

AFFIRMED

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