Tremeyne Porter v. Erie Foods International, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1996

T REMEYNE P ORTER,

Plaintiff-Appellant,

v.

E RIE F OODS INTERNATIONAL, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 3:06-cv-50039—Frederick J. Kapala, Judge.

A RGUED JANUARY 7, 2009—D ECIDED A UGUST 7, 2009

Before P OSNER, R IPPLE AND R OVNER, Circuit Judges.

R IPPLE, Circuit Judge. Tremeyne Porter brought this

action against Erie Foods International, Inc. (“Erie Foods”).

He alleged race-based harassment, constructive dis-

charge and retaliation in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e

et seq. The district court granted summary judgment to

Erie Foods. Because Erie Foods took reasonable action to

detect and to terminate the discriminatory activities of

2 No. 08-1996

the offending employees, we affirm the judgment of the

district court.

I

BACKGROUND 1

During the time period relevant to this appeal, Tremeyne

Porter, who is an African-American, was an employee

of Burton Placement Services (“Burton”).2 On July 19, 2004,

he was placed by Burton as a temporary employee at

Erie Foods’ food production facility in Rochelle, Illinois.

Mr. Porter worked the third shift 3 as a filler stacker

under the supervision of Patricia Santos. On August 12,

sometime after 11:00 p.m., a coworker took Mr. Porter

to the “H-Line” production area, where a noose made

out of white nylon rope was hanging on a piece of machin-

ery, approximately twelve feet above the ground.

Coworker Cody Matheny, allegedly smiling, was standing

at his work station under the noose. Mr. Porter believed

that he was being singled out because he was the sole

African-American employee working the third shift,

1

We construe all facts in favor of the nonmoving party,

Mr. Porter. See Marion v. City of Corydon, Ind., 559 F.3d 700, 704

(7th Cir. 2009).

2

Prior to his placement with Erie Foods, Mr. Porter signed

an agreement with Burton stating that he understood that he

was a Burton employee. R.48, Def. Ex. 1 at 41-43.

3

The third shift ran from 11:00 p.m. to 7:20 a.m.

No. 08-1996 3

and he found the noose to be a highly offensive symbol

of slavery and the lynching of African-Americans.

Santos later went to the H-Line area and discovered the

hanging noose. She directed Matheny to crawl up to the

noose and take it down. She then asked him if he had

hung the noose; he denied doing so. Santos next went

to her office and placed the noose on her desk. She then

made her rounds, checking to make sure that employees

were at their proper places and that the machines were

operating properly.

During this time, Mr. Porter approached Santos and

told her that he believed that the noose was directed at

him. She asked Mr. Porter if he knew who was

responsible for the noose or why someone would hang

it; he stated that he did not. Santos then asked Mr. Porter

if he thought the perpetrator might be coworker

Matheny, Earl Rooney or Blair Crumb. Mr. Porter told

her that he did not. Santos told Mr. Porter that she

would talk to Andy Goffinet in the human resources

department and to her supervisor, Mark Jacobs. She

also said that she would inform the first-shift supervisor,

Darryl Emen, about the noose and see if he had heard

anything from his employees.

Santos hung the noose on the bulletin board in her

office; she says that she did this so that she would not lose

it. Santos then returned to her rounds. The noose

remained on the bulletin board for four hours, where it

was visible to employees through a window in her office

door. Mr. Porter later testified that Santos’ act of hanging

the noose on the bulletin board made him feel “betrayed”

4 No. 08-1996

because Santos “made it seem like she cared but in the

end she didn’t, because if she cared she wouldn’t allow

[him] to . . . see it hanging from somewhere else.” R.48,

Def. Ex. 1 at 152. He stated that he no longer felt com-

fortable talking to Santos. Id.

On the morning of August 13, sometime after 7:00 a.m.,

Santos took the noose off the bulletin board so that she

could show it to Emen and Jacobs. She told them about

what had happened and noted that Mr. Porter thought

that the noose was directed at him. Neither Emen nor

Jacobs knew who was responsible. After Santos finished

speaking with them, she threw the noose away.

Between 8:00 a.m. and 9:00 a.m., Santos informed

Goffinet about the noose and about Mr. Porter’s remarks.

Goffinet stated that he was very concerned and that he

believed the matter needed to be addressed immediately.

Goffinet then informed his supervisor, Jim Klein, of the

incident.

That evening, Goffinet held a fifteen-minute meeting

with Santos, Mr. Porter and all of the other third-shift

employees. At the meeting, he discussed employee harass-

ment and attempted to ascertain who was responsible

for the noose. Goffinet told the workers that workplace

harassment would not be tolerated and mentioned the

company’s anti-discrimination policy. Santos did not

speak during the meeting, but, instead, watched the

employees’ faces in hope of learning who was responsible.

After the meeting, Matheny told Goffinet that he was not

the perpetrator.

Goffinet later spoke privately with nine of the fifteen

third-shift workers. He also met individually with

No. 08-1996 5

Mr. Porter for approximately forty-five minutes. Mr. Porter

told Goffinet that he did not feel comfortable talking to

him because Goffinet previously had been convicted of

abusing a minor and because Mr. Porter had been

abused as a child. They had a “very emotional” conversa-

tion about Mr. Porter’s family life. R.48, Def. Ex. 1 at 91.

During the conversation, Goffinet asked Mr. Porter

who was responsible for the noose; Mr. Porter told

Goffinet that he would not say who made or showed him

the noose because he did not want anyone to be fired.

Goffinet concluded the meeting by handing Mr. Porter

his business card and telling Mr. Porter that, if he ever

wanted to talk to anyone, he could call him.

In another incident around this time,4 coworker Felipe

Alvarez showed Mr. Porter and some other employees a

noose he had made. Alvarez testified that Mr. Porter

laughed when he saw the noose, but Mr. Porter vigorously

disputes this account and states that he felt threatened

by it. In a separate incident, Alvarez gave Mr. Porter a

noose in the locker room. During this incident, Alvarez

told Mr. Porter that, if Mr. Porter showed the noose to

anyone, Alvarez would come to Winnebago and look

for him, which Mr. Porter interpreted to be a threat to

his life and to his family. Id. at 85.

On August 15, Goffinet had another private talk with

Mr. Porter. Goffinet asked Mr. Porter if he was ready to

disclose who made the noose and who showed it to him.

4

The record does not indicate the date when this event oc-

curred.

6 No. 08-1996

Mr. Porter again declined to tell him, stating that he

did not want anyone to lose his job. Goffinet then told

Mr. Porter that he suspected that Matheny and Rooney

were responsible. Mr. Porter claims that he nodded or

made a statement confirming Goffinet’s suspicions. R.48,

Def. Ex. 1 at 95. Goffinet disputes this assertion; he

claims that Mr. Porter made no reply and “continued to

refuse to inform [him] of the identity of the person

who made the noose, possessed it, displayed or hung it.”

R.48, Def. Ex. 8 at ¶ 6. Mr. Porter did tell Goffinet that he

had been threatened by another employee, but did not

identify the individual; Goffinet reported this develop-

ment to Klein. He also asked Mr. Porter if he wanted to

switch to a different shift, but Mr. Porter declined the

offer. Goffinet subsequently followed up with Klein.

Santos asked Mr. Porter, on a nightly basis, whether he

knew who had hung the noose. She also followed up with

the first and second shift supervisors to ascertain if they

had heard anything about the noose. Santos later spoke

with Goffinet about his discussion with Mr. Porter and

learned that there were “several other nooses out and

about.” R.48, Def. Ex. 4 at 77.

Mr. Porter contacted the Rochelle Police Department on

August 14. He stated that he did not want to have

anyone arrested, but that he did want to file an informa-

tion report. R.48, Def. Ex. 10. He told the police that

workers were making nooses and hanging them on the

walls of the production floor and stated that employees

would walk past him while swinging nooses. Mr. Porter

also told the police that the human resources manager

No. 08-1996 7

at Erie Foods had held a meeting and that he would

call back if the meeting ameliorated the situation. He

further recounted Alvarez’s threat and stated that

Alvarez, Matheny and Rooney were responsible for

making what he believed to be racial comments, such as

calling him a “f---ing temp.” R.48, Def. Ex. 1 at 104. Mr.

Porter noted that the only action he wanted taken was

to have the situation documented. He told the officer

that he did not want the police to visit Erie Foods or the

employees, but that he wanted the harassment to stop.

On August 15, while Mr. Porter was in the break room,

Rooney and Matheny entered, singing “I wish you would

die,” and laughed. R.48, Def. Ex. 1 at 119. The next day,

a locker fell on Mr. Porter while he was changing into

his work clothes; suspecting that one of the other employ-

ees was responsible, he reported the incident to Santos.

Santos went into the locker room to see the tipped-over

locker; she also asked Mr. Porter if he knew who was

responsible or who was in the room at the time the locker

fell. Mr. Porter said that he did not know. She asked

Mr. Porter if he had been injured, and he stated that he

had been struck by the locker, but that he was un-

harmed. Santos reported the incident to Goffinet, who also

looked at the lockers and had them bolted to the wall the

next day.

Mr. Porter quit his job on August 19. Prior to his depar-

ture, he told Santos that he was planning on leaving

because he felt that the people at Erie Foods were

hostile toward him and that he did not feel safe working

there. Santos told him that he could come to her about

any problems and that he should let his employer,

8 No. 08-1996

Burton, know about his concerns. After Mr. Porter quit, he

gave Burton a written statement about the problems

that he had encountered at the Erie Foods plant, including

the incidents with Alvarez and the various statements

made by coworkers. This statement was faxed by Burton

to Erie Foods on August 20. Mr. Porter also gave Burton

the noose that Alvarez had given him. Erie Foods sub-

sequently fired Alvarez for his behavior.

Porter then filed this suit under Title VII. The district

court granted summary judgment to Erie Foods. Mr. Porter

filed this timely appeal.

II

DISCUSSION

We review the district court’s grant of summary judg-

ment de novo and draw all reasonable inferences in

favor of Mr. Porter, the non-moving party. See Rockwell

Automation, Inc. v. Nat’l Union Fire Ins. Co., 544 F.3d 752,

756 (7th Cir. 2008). Mr. Porter submits that he suffered

harassment amounting to a hostile work environment, that

he was constructively discharged and that he was termi-

nated for engaging in a protected activity, all in violation

of Title VII. We shall consider, in turn, each of these

arguments.

A.

1.

We first turn to Mr. Porter’s hostile work environment

claim. The Supreme Court has held that harassment

No. 08-1996 9

which is “sufficiently severe or pervasive to alter the

conditions of . . . employment” is actionable under Title

VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)

(quotation marks omitted). To survive summary judg-

ment, an employee alleging a hostile work environment

must show that: “(1) he was subject to unwelcome harass-

ment; (2) the harassment was based on his race; (3) the

harassment was severe or pervasive so as to alter the

conditions of the employee’s work environment by creat-

ing a hostile or abusive situation; and (4) there is a basis

for employer5 liability.” Williams v. Waste Mgmt. of Ill., Inc.,

361 F.3d 1021, 1029 (7th Cir. 2004).

5

Erie Foods does not seek to escape liability under Title VII on

the basis that it is not Mr. Porter’s employer. Nor would it

appear that, under the circumstances presented here, such an

argument would be persuasive. See Reynolds v. CSX Transp., Inc.,

115 F.3d 860, 869 (11th Cir. 1997) (rejecting the argument that

the plaintiff could not recover against CSX because “she was

technically employed by Olsten Temporary and not by” CSX,

and observing that whether a company is an employer for

purposes of Title VII is based on the “economic realities of the

situation viewed in light of the common law principles of

agency and the right of the employer to control the employee”),

rev’d on other grounds, 524 U.S. 947 (1998). See generally EEOC

Notice 915.002, Enforcement Guidance: Application of EEO Laws

to Contingent Workers Placed by Temporary Employment Agencies

and Other Staffing Firms, December 3, 1997 (noting that “[a] client

of a temporary employment agency typically qualifies as an

employer of the temporary worker during the job assignment,

along with the agency. . . . because the client usually exercises

significant supervisory control over the worker”).

10 No. 08-1996

Mr. Porter submits that he experienced unwelcome

harassment because he was shown nooses on multiple

occasions, subjected to unwelcome verbal harassment

and threatened by Alvarez. He contends that the harass-

ment was based on his race because he was the only

African-American employee working the third shift and

because nooses represent slavery and oppression.

Mr. Porter emphasizes that the harassment made him

fear for his own safety and for that of his family.

Mr. Porter maintains that sufficient evidence exists to

hold Erie Foods liable for the acts of racial harassment

committed by its employees. He claims that, after he

complained to Santos, Erie Foods conducted only a mini-

mal investigation and failed to prevent future discrim-

inatory behavior. He emphasizes that Santos hung the

noose on the bulletin board where it was visible to em-

ployees. Mr. Porter further argues that Goffinet conducted

only a cursory meeting with the employees, failed to hand

out or discuss the company’s anti-discrimination policy

and did not privately interview Matheny or Rooney.

Mr. Porter further notes that, after the meeting, the harass-

ment continued. In particular, he points to the incident

where Alvarez threatened him.

Mr. Porter maintains that Erie Foods may be held liable,

despite the fact that he did not report the subsequent

harassment. In Mr. Porter’s view, it was reasonable for

him to not report this subsequent harassment because

he did not trust Santos after the bulletin board incident

and felt uncomfortable around Goffinet, who had been

convicted in the past for sexual abuse of a minor. See Vance

No. 08-1996 11

v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1513-14 (11th

Cir. 1989) (holding that the plaintiff’s failure to notify

her employer about two nooses hung at her workstation

because she was afraid did not insulate the employer

from liability), overruled on other grounds, 983 F.2d 1573,

1581 (11th Cir. 1993). He claims that Erie Foods knew who

was responsible for the harassment, but failed to

suspend or terminate those individuals. Therefore,

Mr. Porter argues that Erie Foods tolerated a hostile

work environment instead of using its “arsenal of incen-

tives and sanctions” to affect the conduct of its employees.

Appellant’s Br. 33 (citing Dunn v. Wash. County Hosp.,

429 F.3d 689, 691 (7th Cir. 2005)).

2.

The harassment that Mr. Porter experienced in this

case was, undoubtably, based on race:

The noose in this context is a symbol not just of racial

discrimination or of disapproval, but of terror. Those

of us for whom a particular symbol is just that—a

symbol—may have difficulty appreciating the very

real, very significant fear that such symbols inspire in

those to whom they are targeted. No less than the

swastika or the Klansman’s hood, the noose in this

context is intended to arouse fear.

Vance, 983 F.2d at 1583 (Fay, J. dissenting). See also

Temitope Oriola and Charles Adeyanju, Haunted: The

Symbolism of the Noose, African Identities, Vol. 7, No. 1, at

91 (“The noose as an accoutrement of terror is essentially

12 No. 08-1996

about the ‘place’ of African-Americans in the United

States.”); see generally Lu-in Wang, The Complexities of

“Hate,” 60 Ohio St. L. J. 799, 835-36 (1999) (discussing the

psychological effect that lynchings have had on African-

Americans). “Like ‘a slave-masters whip,’ the image of a

noose is ‘deeply a part of this country’s collective con-

sciousness and history, any [further] explanation of

how one could infer a racial motive appears quite unneces-

sary.’ ” Tademy v. Union Pac. Corp., 520 F.3d 1149, 1159 (10th

Cir. 2008) (quoting Johnson v. Potter, 177 F. Supp. 2d 961,

965 (D. Minn. 2001)) (alteration in original). The noose is

a visceral symbol of the deaths of thousands of African-

Americans at the hand of lynch mobs. Williams v. N.Y.

City Hous. Auth., 154 F. Supp. 2d 820, 824 (S.D.N.Y. 2001)

(citing Robert L. Zangrando, The NAACP Crusade Against

Lynching, 1909-1950, at 4 (1980)). Given this backdrop,

several courts have recognized that “a noose may consti-

tute part of a hostile environment claim.” Tademy, 520 F.3d

at 1159 (collecting cases). In this case, the presence of

multiple nooses and the veiled threats by Mr. Porter’s

coworkers, which caused Mr. Porter to fear for his own

safety and that of his family, rose to the level of a

hostile work environment.

We therefore turn to the question of whether there is a

basis for employer liability. We have observed, on numer-

ous occasions, that Title VII is not a strict liability statute.

See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044,

1048 (7th Cir. 2000) (“[A]n employer is not strictly liable

under Title VII for sexual harassment perpetrated by

its employees”). Specifically, when a plaintiff, like

Mr. Porter, “claims coworkers alone were responsible

No. 08-1996 13

for creating a hostile work environment, he must show

that his employer has been negligent either in discovering

or remedying the harassment.” Williams, 361 F.3d at 1029

(quotation marks omitted). Stated another way, the em-

ployer can avoid liability for coworker harassment “if

it takes prompt and appropriate corrective action reason-

ably likely to prevent the harassment from recurring.”

Tutman, 209 F.3d at 1048; accord Lapka v. Chertoff, 517 F.3d

974, 985 (7th Cir. 2008). Here, Mr. Porter does not argue

that Erie Foods was negligent in discovering the noose

hanging in the work area. Our focus, therefore, is on

whether Erie Foods responded promptly and effectively

to the incident. We believe the record establishes that

Erie Foods’ actions met this standard.

We have observed that a prompt investigation is the

“ ‘hallmark of a reasonable corrective action.’ ” Lapka, 517

F.3d at 984 (quoting Cerros v. Steel Techs, Inc., 398 F.3d

944, 953-54 (7th Cir. 2005)). Here, the steps taken by

Santos and Goffinet after the discovery of the noose,

taken as a whole, show that they took the harassment

seriously and took appropriate steps to bring the harass-

ment to an end. Immediately upon discovering the

noose, Santos directed Matheny to take it down and

inquired whether he was responsible for hanging it.

When Mr. Porter came to Santos later that evening, she

asked him if he knew who was responsible for the noose

or why someone would hang it. Santos specifically in-

quired whether Mr. Porter thought the perpetrator

might be Matheny, Rooney or Crumb; Mr. Porter told

her that he did not know. Santos then informed Mr. Porter

that she would talk to Goffinet and Jacobs about the

14 No. 08-1996

incident to see what follow-up should be done. She

said that she would speak to Emen to determine if any

workers during his shift knew anything about the noose.

Santos, in fact, did speak to Emen and Jacobs upon their

arrival at the end of her own shift. Santos also went to

Goffinet and told him of the noose and of Mr. Porter’s

remarks.6

For his part, Goffinet expressed his concern and his

intent to address the matter immediately. Goffinet first

informed his supervisor, Jim Klein, of the incident. Addi-

tionally, that very evening, Goffinet held a meeting with

all of the third-shift employees. Goffinet informed the

workers that harassment in the workplace would not

be tolerated; he also alerted the workers to the company’s

anti-harassment policy.

Goffinet later spoke privately with more than half of

the third-shift workers. He also met individually with

Mr. Porter. During their conversation, Goffinet specifically

6

We do note, however, that one action taken by Santos—the

placing of the noose on her office bulletin board—was ill-

advised. Although there is no evidence in the record that

Santos’ motives were in any way illicit, this action, apparently

taken to remind herself to report the matter to her seniors,

also demonstrated a lack of recognition of the powerful message

of racial hatred that a noose evokes. However, this misstep

stands in contrast to Santos’ otherwise diligent actions to

bring the harassment to an end. Notably, Mr. Porter never

reported this action to the company as a harassing event

and, when the record is evaluated as a whole, it is clear that

there is no basis for such a characterization.

No. 08-1996 15

asked Mr. Porter who was responsible for the noose;

Mr. Porter declined to name any of his coworkers. At the

end of the meeting, Goffinet gave Mr. Porter his business

card and told Mr. Porter that he was available to talk

with him at any time.

Mr. Porter faults Erie Foods for not taking further

action against Matheny and Rooney once he had identi-

fied them as the perpetrators. According to Mr. Porter,

during a second private meeting with Goffinet on

August 15, Goffinet told Mr. Porter that he (Goffinet)

suspected that Matheny and Rooney were responsible

for the noose. Mr. Porter claims that he nodded or made

a statement confirming Goffinet’s suspicions. R.48, Def.

Ex. 1 at 94. Although Goffinet disputes this assertion, at

this stage, we must accept Mr. Porter’s version of events

as true.

In assessing the corrective action, our focus is not

whether the perpetrators were punished by the

employer, but whether the employer took reasonable steps

to prevent future harm. Lapka, 517 F.3d at 984. “Title VII

requires only that the employer take steps reasonably

likely to stop the harassment.” Saxton v. AT&T Co., 10

F.3d 526, 536 (7th Cir. 1993). Mr. Porter maintains that the

steps taken by Erie Foods were ineffectual because the

harassment did not cease; specifically, he points to the

incidents in the break room on August 15 and in the

locker area on August 16, as well as the threatening

behavior by Alvarez. There is no question that a

“stoppage of harassment shows effectiveness. . . . However,

this is not the sole factor to be considered. Because there

16 No. 08-1996

is no strict liability and an employer must only respond

reasonably, a response may be so calculated even though

the perpetrator might persist.” Adler v. Wal-Mart Stores,

Inc., 144 F.3d 664, 676 (10th Cir. 1998). In the present case,

the only information Erie Foods initially had was that a

noose was found hanging in the work area and that

Mr. Porter believed that it was directed at him. In

response, Santos made inquiries of her workers and fellow

supervisor; she made repeated inquiries of Mr. Porter. In

addition, Goffinet commenced an investigation; he met

with the entire third shift, and he also met with Mr. Porter.

After these actions had been taken, Mr. Porter did not

report any new racial harassment at the hands of

Matheny or Rooney.7

Mr. Porter had, of course, a duty to reasonably “avail

[him]self of the employer’s preventive or remedial appara-

tus.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).

The Court has explained that Title VII “borrows from

tort law the avoidable consequences doctrine under

which victims have a duty to use such means as are

reasonable under the circumstances to avoid or mini-

mize the damages that result from violations of the stat-

ute.” Penn. State Police v. Suders, 542 U.S. 129, 146 (2004)

(citations and quotation marks omitted). See also Ford

7

During his second meeting with Goffinet on August 15, Mr.

Porter did tell Goffinet that he had been threatened by another

employee. However, Mr. Porter would not identify the em-

ployee or give any details about the nature of the threat. In

response, Goffinet offered to move Mr. Porter to another shift,

but Mr. Porter declined.

No. 08-1996 17

Motor Co. v. EEOC, 458 U.S. 219, 231 (1982) (discussing

a Title VII plaintiff’s responsibility to mitigate damages).

“If the victim could have avoided harm, no liability

should be found against the employer who had taken

reasonable care.” Faragher, 524 U.S. at 807.

Mr. Porter seeks to excuse his lack of cooperation in the

investigation of the noose incident, as well as his failure

to disclose the serious problems he was encountering

with Alvarez, because of Santos’ handling of the noose 8

and because of Goffinet’s personal history. However, we

have noted that “an employee’s subjective fears of con-

frontation, unpleasantness or retaliation do not alleviate

the employee’s duty . . . to alert the employer to the

allegedly hostile environment.” Hill v. Am. Gen. Fin., Inc.,

218 F.3d 639, 644 (7th Cir. 2000) (quoting Shaw v. AutoZone,

Inc., 180 F.3d 806, 813 (7th Cir. 1999) (discussing em-

ployee’s burden to report harassment by supervisor)).9

Furthermore, the actions of both Santos and Goffinet,

taken as a whole, show that they were prompt, serious

8

Mr. Porter faults Santos for placing the noose on her bulletin

board while she was investigating. Specifically, Mr. Porter

claims that this action caused him distress because the noose

was visible to others.

9

Moreover, this case can be distinguished from Vance, 863

F.2d at 1513-14, in which the plaintiff’s failure to notify her

employer about two nooses hung at her work station did not

insulate her employer from liability. In Vance, the plaintiff was

concerned that management might be responsible for the

nooses. Id. In contrast, Mr. Porter did not believe that his

supervisors were responsible for the harassment.

18 No. 08-1996

and diligent in trying to weed out the offending behavior

and allay Mr. Porter’s concerns. Santos instituted an

investigation, spoke with other shift leaders, attended

the meeting with her shift and asked Mr. Porter every

night whether he knew who had hung the noose. For

Goffinet’s part, he not only held the meeting with the

third shift, interviewed third-shift workers 1 0 and met with

Mr. Porter on two separate occasions, but he also offered

to transfer Mr. Porter to another shift. See, e.g., Williams,

361 F.3d at 1030 (noting that the court has found that

separating the parties is “an appropriate remedy in race

harassment cases”).1 1 Mr. Porter’s reticence, therefore,

does not excuse his failure to provide the detail necessary

for Erie Foods to understand the nature of the harass-

ment and to respond appropriately.1 2

10

Mr. Porter also claims that management should have inter-

viewed individually the prime suspects, Matheny and Rooney.

This record provides us with little basis to fault the manage-

ment in this respect. It was reasonable for management to

want facts before confronting the prime suspects, and, partially

due to Mr. Porter’s reluctance to cooperate, those facts

had not yet been assembled when Mr. Porter quit his job.

11

Mr. Porter does not claim that transferring him to a different

shift would have made him worse off. See Tutman v. WBBM-TV,

Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000).

12

Instead of reporting all of the harassers and harassing behav-

ior to Erie Foods, Mr. Porter contacted the Rochelle Police

Department. In this report, Mr. Porter not only explicitly

identified the three individuals with whom he was having

difficulty, he also described in detail the type of harassment

(continued...)

No. 08-1996 19

In sum, we cannot say that, on this record, a reasonable

trier of fact could conclude that Erie Foods had been

negligent in investigating or responding to the harass-

ment of which it had knowledge. Accordingly, we

must conclude that Erie Foods is not liable for the racial

harassment experienced by Mr. Porter.

B.

We next consider Mr. Porter’s claim that he was con-

structively discharged on the basis of his race. 1 3 Ordinarily

a plaintiff “is expected to remain on the job while seeking

redress” for his employer’s discriminatory actions. See

Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 427 (7th Cir.

2006) (citations and quotation marks omitted); see also

Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789-90

(7th Cir. 2007) (same). In Pennsylvania State Police v.

Suders, 542 U.S. 129 (2004), the Supreme Court, while

acknowledging explicitly that Title VII encompasses

employer liability for constructive discharge, id. at 143,

emphasized that, although a plaintiff may establish a

hostile work environment by showing that he has been

subjected to severe or pervasive harassment, id. (citing

12

(...continued)

he was enduring. Although Mr. Porter certainly had the right

to alert the police to the threatening behavior, it did not relieve

him of the responsibility to make Erie Foods aware of these

incidents.

13

Because Mr. Porter’s race discrimination theory is based on

constructive discharge, we shall apply our constructive dis-

charge precedent.

20 No. 08-1996

Meritor Sav. Bank, 477 U.S. at 67), a “further showing” is

necessary to establish a constructive discharge, id. at 134.

Specifically, the plaintiff “must show that the abusive

working environment became so intolerable that [his]

resignation qualified as a fitting response.” Id. (quotation

marks omitted); see also Boumehdi, 489 F.3d at 789 (“To

establish a claim for constructive discharge, a plaintiff

must prove that unlawful discrimination made her work-

ing conditions so intolerable that a reasonable person

would be forced to resign.” (citing Suders, 542 U.S. at 147)).

The present case presents a different situation than the

one before the Supreme Court in Suders.1 4 Mr. Porter

does not contend that the harassment he endured was

effectuated by his supervisors. Rather, he maintains that

management’s failure to take definitive action to stop

the harassment justified his departure. In short, he con-

tends that, although his coworkers were the ultimate

14

In Suders, the Court made clear that the case before it

“concern[ed] an employer’s liability for one subset of Title VII

constructive discharge claims: constructive discharge re-

sulting from sexual harassment, or ‘hostile work environment,’

attributable to a supervisor.” 542 U.S. at 143. Given this

context, the Court continued, its “starting point” was the

framework Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), “estab-

lished to govern employer liability for sexual harassment by

supervisors.” Id. The Court was careful to observe that

“Ellerth and Faragher expressed no view on the employer

liability standard for co-worker harassment. Nor do we.” Id. at

143 n.6.

No. 08-1996 21

source of the harassment, it was the actions of manage-

ment, or, more appropriately, the lack of management

action that made his “working conditions so intolerable

that [he had] no option but to resign.” Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 894 (1984) (cited in Suders, 542 U.S.

at 142).

As we noted earlier, the constructive discharge test sets

a high bar in order to give an employer an opportunity

to address the situation before an employee resigns.

Boumedhi, 489 F.3d at 789-90; see also Witte v. Wis. Dep’t of

Corr., 434 F.3d 1031, 1035-36 (7th Cir. 2006) (“Working

conditions for constructive discharge must be even more

egregious than those that would support a finding of a

hostile work environment; absent extraordinary circum-

stances, an employee is expected to remain employed

while seeking redress.”) (citing Herron v. DaimlerChrysler

Corp., 388 F.3d 293, 303 (7th Cir. 2004)). We have no doubt

that the conduct in this case was egregious, and we have

previously found egregious conduct to be sufficient to

support a claim for constructive discharge.1 5 Here, the

15

See Taylor v. Western & S. Life Ins. Co., 966 F.2d 1188, 1191 (7th

Cir. 1992) (recognizing that a jury could find constructive

discharge where the plaintiffs’ supervisor made several racist

comments, fondled one plaintiff and held a gun to another

plaintiff’s head); Brooms v. Regal Tube Co., 881 F.2d 412, 416-17,

423-24 (7th Cir. 1989) (holding that constructive discharge

was established after “repeated instances of grossly offensive

conduct and commentary” that culminated in an incident

where a coworker showed the plaintiff a racist pornographic

(continued...)

22 No. 08-1996

allegations include repeated use of a noose—perhaps

the ultimate symbol of racial hatred and hate crimes—

combined with implied threats of physical violence. Such

conduct clearly qualifies as egregious for purposes of

constructive discharge.

Nevertheless, in determining whether a plaintiff

may recover for a constructive discharge, we also must

assess the employer’s response to that conduct. We

believe that, on the facts presented here, a jury would

have to conclude that Erie Foods’ response was a reason-

able one. There is no question that Erie Foods had a

means in place for remedying complaints of workplace

harassment, that Mr. Porter initially availed himself of

that procedure, that his complaint set in motion an investi-

gation of his claim and that management informed the

entire third shift that discriminatory conduct would not

be tolerated.

Additionally, both Santos and Goffinet followed up with

Mr. Porter. Indeed, when Mr. Porter informed Goffinet

that he had been threatened by another, unidentified

coworker, Goffinet offered to move Mr. Porter to a differ-

ent shift. Despite management’s efforts to both root

out the offenders and to shield Mr. Porter from the offend-

ing behavior while the investigation was ongoing,

Mr. Porter did not report additional harassment by Rooney

15

(...continued)

photograph, told her that she was hired to perform the task

depicted in the photograph, grabbed the plaintiff and

threatened to kill her).

No. 08-1996 23

and Matheny, did not identify Alvarez as the other

harasser and did not avail himself of the opportunity to

change shifts. Given the efforts that Erie Foods’ manage-

ment made to address the harassment, a reasonable

employee would have given his employer a further

chance to remedy the workplace harassment. See Lee-Crespo

v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.

2003) (stating that “the evaluation of a constructive dis-

charge claim takes into account how the employer re-

sponded to the plaintiff’s complaints and whether it was

likely that the harassment would continue” and noting

that the plaintiff’s constructive discharge claim was

undermined by the management’s swift response to

her complaints).

In sum, Erie Foods diligently investigated Mr. Porter’s

sole complaint of race-based harassment. Nevertheless,

when Mr. Porter continued to be harassed, he did not use

the means available to him to remedy the situation.

Consequently, Erie Foods has defended itself success-

fully against Mr. Porter’s constructive discharge claim.

C.

Finally, we consider Mr. Porter’s claim that Erie Foods

retaliated against him for engaging in a protected activity.

An employee can establish a prima facie case for retalia-

tion under either the direct or indirect method. Roney v.

Ill. Dept. of Trans., 474 F.3d 455, 459 (7th Cir. 2007). Mr.

Porter proceeds under the direct method, which requires

him to show that: (1) he engaged in a statutorily protected

activity; (2) an adverse action was taken against him

24 No. 08-1996

by his employer; and (3) there is a causal connection

between the two. Salas v. Wis. Dep’t of Corr., 493 F.3d 913,

924 (7th Cir. 2007).

Mr. Porter submits that he suffered from unlawful

retaliation for opposing impermissible race-based discrimi-

nation. He maintains that he engaged in a protected

activity when he complained about the noose on

display over the H-line. He further contends that he

suffered an adverse employment action when he was

constructively discharged. Mr. Porter argues that there

is a causal link between his complaints and the construc-

tive discharge, because management failed to remedy

the harassment and, therefore, forced him to leave.

As we discussed earlier, we do not believe that

Mr. Porter was constructively discharged. There certainly

is no showing that Erie Foods ignored or slowed its

investigation after the initial complaint in the hope that

the continued harassment would cause Mr. Porter to

leave. The record shows that Erie Foods took appropriate

action to address Mr. Porter’s complaint. There is no

evidence in the record that it failed to take Mr. Porter’s

complaint seriously. We therefore cannot conclude that

Erie Foods retaliated against Mr. Porter.

Conclusion

For the foregoing reasons, we affirm the judgment of

the district court.

A FFIRMED

No. 08-1996 25

R OVNER, Circuit Judge, concurring. As my brethren aptly

point out, a noose is one of the most potent symbols of

racial oppression—a symbol of terror and violence. A

person who realized the power of that message, upon

discovering it, would condemn it to a dark hidden place

where it could do no further harm. After removing the

noose from the production area of the H line, however,

supervisor Santos took that message of terror, threat, and

violence and relocated it on the bulletin board in her

windowed supervisor’s office where it was visible to all

employees. The majority describes this act as “ill-ad-

vised”—an understatement for sure. At its best, Santos’

act sent the message that she had no idea of the potency of

the message and, as a result, would either fail to take the

harassment seriously or would bungle the investiga-

tion as she had the efforts to remove the offending com-

munication. At worst, her re-broadcast of the noose sent

a message that she sided with the harassers.

The majority credits Santos’ testimony that she placed

the noose on the bulletin board so that she would not lose

it and to remind herself to report the matter to her super-

visors, both of which are odd excuses for a bulletin

board display of a symbol of lynching black men. A

drawer, a purse, a file cabinet, or a box would all keep the

evidence safe, and Santos’ concerns about forgetting to

report the event simply reinforces my best-case-scenario

hypothesis—that Santos failed to understand the gravity

of the harassment. Furthermore, four hours later, after

showing the noose to her supervisor and the first shift

supervisor, she threw that noose that she was so

fearful of losing into the garbage. By doing so, she

26 No. 08-1996

failed to preserve it for future investigation by human

resource personnel or other higher ranking company

supervisors.

We need not determine Santos’ intentions. Whether an

intentional perpetuation of the harassment or simply an

“ill-advised” misstep, as the majority characterizes it, the

company had an obligation to correct the harm. The

failure to take corrective action in such a case simply

cannot be “reasonable action” as a matter of law. It ap-

pears, however, that Porter never complained to the

company about this particular harassing event. He men-

tions it in this appeal as a means of excusing his failure

to name the perpetrators of the harassment, arguing that

the act made him feel uncomfortable about talking to his

supervisor about the event. As the majority points out,

under the framework set forth in Faragher v. City of Boca

Raton, 524 U.S. 775, 806-07, 118 S. Ct. 2275, 2292 (1998),

Porter had a duty to avail himself of his employer’s

remedial apparatus in some manner. See also Cerros v.

Steel Techs., Inc., 398 F.3d 944, 952 (7th Cir. 2005). Had he

done so, “reasonable action” would have required the

company to take prompt and decisive action to correct

that harm.

The majority concludes in footnote 6 that, “when the

record is evaluated as a whole, it is clear that there is

no basis for” characterizing the noose in the super-

visor’s office as harassing. Ante at p. 14, fn.6. I dis-

agree. Nevertheless, Porter never reported this particular

act of harassment and Porter points to no evidence that any

of the managers saw the noose in her office, so the com-

No. 08-1996 27

pany cannot be liable for its failure to take reasonable

action.

Furthermore, the majority accurately notes that Santos

and Goffinet removed the original noose promptly, imme-

diately held a meeting for all shift workers informing

them of the company’s harassment policy and reinforcing

that the company would not tolerate harassment, inter-

viewed the majority of the shift’s employees, held several

meetings with Mr. Porter to ferret out the culprit, and

offered to transfer him to another shift.1 Their efforts

indeed may have been hampered by Porter’s reticence

to co-operate in the investigation and his failure to

report all of the incidents that he now claims contributed

to the harassment. I agree with the majority that the

company’s actions, taken as a whole, were sufficient to

allow a rational trier of fact to conclude that the

company took reasonable steps to stop the harassment

and prevent future harm, despite Santos’ serious error.

See Lapka v. Chertoff, 517 F.3d 974, 984 (7th Cir. 2008), Saxton

v. Am. Tel. & Tel. Co., 10 F.3d 526, 535-536 (7th Cir. 1993).

1

In the usual case we would expect the employer to remedy

the harassment by inconveniencing the harasser with a transfer

and not the victim. See, e.g., Williams v. Waste Management of

Illinois, 361 F.3d 1021, 1030 (7th Cir. 2004). In this case, however,

since the company never identified the harasser with any

confidence, and because we do not know whether the transfer

would have been better or worse for Porter, it is legitimate

to accept as remedial Goffinet’s offer to transfer Porter.

28 No. 08-1996

I would stop short, however, of the majority’s description

of Santos’ efforts as “diligent.”

8-7-09