Mark Mason v. Southern Illinois University at Carbondale

RIPPLE, Circuit Judge,

concurring.

In this case, an employee seeks to establish a case of racial harassment at the hands of a supervisor. In order to prove his case before a jury, the employee sought to establish that the supervisor made racially derogatory remarks about him before other employees and that, as a consequence of these remarks, there was a perceptible change in the manner in which his coworkers treated him. The district court admitted all behavior and statements of the supervisor and all behavior and statements of the coworkers when the supervisor was present. It refused to admit, however, behavior and statements of the coworkers when the supervisor was not present.

It is important to note what the court does not decide. The court does not decide that, as a general principle, statements made by coworkers, when the supervisor is not present, are inadmissible to prove supervisor harassment of a worker in violation of Title VII. The court recognizes that such coworker statements may be relevant in assessing the conduct of the supervisor when the circumstances support the inference that there is a causal relationship between the supervisor’s statements and the behavior or statements of the coworkers. In acknowledging the relevance of such evidence, the court is recognizing the practical realities of the workplace. A supervisor ought not escape the strictures of Title VII when she sets the stage for the harassment of a worker and then simply absents herself when the actual harassment takes place.

As my colleagues note, in proving supervisor harassment, evidence of coworker behavior can be relevant to establish the motive of the supervisor. In order to establish the necessary link to the supervisor, however, it is necessary to show, by direct or circumstantial evidence, that the supervisor was aware, or should have been aware, that her actions or words would lead to the behavior and words of the coworkers. To establish a supervisor’s motive through the words and actions of the coworkers, it is necessary to show that the supervisor should have realized that her activity would lead to such a result. Here, the employee wished to show that, after the supervisor made racially derogatory comments in the presence of coworkers, there was a substantial increase in racial epithets in the coworkers’ parlance and that he was isolated by those workers in the daily activities of the workplace. My colleagues believe that the district court was on solid ground in declining to admit the evidence of the coworker’s statement because there is no evidence that the supervisor was present when the statements were made. It is not clear, however, why the supervisor’s presence is necessary to establish the relevance of the statements to the issue of the supervisor’s intent. The defense wanted to establish *1049 that, in making racially charged statements in front of the coworkers, the supervisor was sending a signal that treating the plaintiff in a racially discriminatory matter was acceptable conduct in which the workers could indulge safely without fear of reprisal — a message confirmed when a coworker did make such a statement before the supervisor and incurred no sanction.

The actions and statements of the coworkers also can be relevant, as my colleagues also acknowledge, on the issue of whether the harassment was pervasive. Here again, the employee was entitled to show that the supervisor’s statements to the coworkers signaled that the supervisor condoned, or even encouraged, the racial harassment of the employee.

My colleagues suggest, however, that the remarks of the coworkers are irrelevant on both the intent issue and on the pervasiveness issue because the employee never knew of the comments. The majority is certainly correct in stating that mean-spirited or derogatory behavior of which the plaintiff is unaware and therefore never experiences are not, in themselves, “harassment.” But, even if these statements were not, in themselves, instances of harassment, their occurrence can certainly be relevant for the limited purposes of showing the intent of the supervisor in making the statements and to demonstrate that the statements that were heard by the employee were the products of an intense and concerted effort to set the employee apart from his fellow workers on the basis of his race.

Although the tendered evidence was relevant, the decision of the district court not to admit it in this case must be sustained. For the reasons given by my colleagues, the failure to admit this material must be considered harmless error.

On this basis, I join the judgment of the court.