Petition for Writ of Certiorari — Spearman v. Ford Motor Co.

; Supreme Court, U.S. .

f \ eee FE D

001377 Mar - 2 2008

In the

Supreme Court of the United States

EDISON K. SPEARMAN,

Petitioner,

V.

FORD MOTOR COMPANY,

Respondent.

On Petition For Writ OF CERTIORARI

To Tue Unitep States Court OF APPEALS

For THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PETER ANDJELKOVICH

Counsel of Record

PETER ANDJELKOVICH & ASSOCIATES

39 SoutH La SALLE STREET

Cuicaco, IL 60603

(312) 782-8345

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED

4 May a male employee singled out for harassment

because of the perceived feminine manner in which he

projects himself present an actionable claim for sexual

harassment under Section 703(a) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(a)?

II. Can a Title VII claim of sexual discrimination be

presented by a party who demonstrates that an employer

investigates complaints of female sexual harassment

vigorously but ignores and ridicules complaints of male sexual

harassment?

PARTIES TO THE PROCEEDING

Petitioner

Edison K. Spearman, an individual with no corporate

affiliations.

Respondent

Ford Motor Company.

TABLE OF CONTENTS

Page

QUBSINONS PRESENTED ... 2... ccc ccccccce i

PARTIES TO THE PROCEEDING ............. ii

lee) + ili

TABLE OF AUTHORITIES .............2000. V

te Et l

ee l

STATUTORY PROVISIONS INVOLVED ......... l

STATEMENT OF THECASE ................ 2

REASONS FOR GRANTING WRIT............. 5

te a 5

The Court Of Appeals Decision Failed To

Consider The Evidence Demonstrating That

The Harassment Was Motivated In Part By

The Co-workers’ Perception Of How Mr.

Spearman Projected His Masculinity. ........ 5

ano es ah Ss ak Sin wy & 50.06 4-44 1]

An Employee Who Demonstrates That His

Employer Aggressively Investigates Femaie

Complaints Of Sexual Harassment And

ill

Disregards Male Sexual Harassment

Complaints Presents A Cognizable Claim Of

Sexual Discrimination Under Title VII. ...... 11

Pa San cee ans neon aceon es ae es 14

APPENDIX

Appendix A

Seventh Circuit Opinion, 11/3/00 .......... la

Appendix B

District Court Memorandum and Order

on Motion for Summary Judgment,

ee ee a as Be ee a ea 15a

Appendix C

Seventh Circuit Order Denying Petition

for Rehearing and Request for En Banc

SPE ea oh yo erste a hie we 32a

Appendix D

District Court Final Judgment, 9/1/99 ...... 34a

lV

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3

7

j

3

P|

TABLE OF AUTHORITIES

Cases Page(s)

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 106 S.Ct. 2505,

ee | eer ree rrr 10

Bragg v. Navistar Intl’l Trans. Corp..,

5O6 F350 S73 C7) CO. TOD von es ce ot 13

Doe v. City of Belleville,

119 F.3d 563, 7th Cir. (1997)

abrogated by 118 S.Ct. 1183 ........ 9, 10, 11

Harris v. Forklift Systems, Inc.,

310 U.S. 17, 114 S.Ct. 367 (1993) ......... 8

Higgins v. New Balance Athletic Shoe, Inc.,

194 F.3d 252 (f.n. 4)(1st Dist. 1999) ........ 6

Los Angeles v. Manhart,

435 U.S. 702, 98 S.Ct. 1370 (1978) ........ 6

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 106 S.Ct. 1348,

ee ht, | rr re 10

Meritor Savings Bank v. Vinson,

477 U.S. 57, 106 S.Ct. 2399 (1986) ........ 8

Nabozny v. Podlesny,

92 F.3d 446 (7th Cir. 1996) ........... 'Z, 13

Price Waterhouse v. Hopkins,

490 U.S. 228, 109 S.Ct. 1775 (1989)

Oncale v. Sundowner Offshore Services, Inc.,

523 U.S.75, 118 S.Ct. 998 (1998) . .

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 120 S.Ct. 2097 (2000) .

Schwenk v. Hartford,

204 F.3d 1187 (9th Cir. 2000)

Simonton v. Runyon,

232 F.3d 33 (2nd Cir. 2000)

Smith v. Sheahan,

189 F.3d 529 (7th Cir. 1999) .....

Spearman v. Ford Motor Company,

231 F.3d 1080 (2000) ..........

St. Mary's Honor Center v. Hicks,

509 U.S. 502, 113 S. Ct. 2742 (1993)

Teamsters v. United States,

431 U.S. 324 n.15 (1977)

Statutes

42 U.S.C. 8 1968 ...455558 ee

42 U.S.C. § SUR. sk eee

42 U.S.C. § 2000e-2(a)(1).. .. 2... ee.

42 U.S.C. § 2000e-2(m) .............

vl

. 10

13

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 231 F.3d 1080 (7th Cir.

2000). A copy of the Opinion is included in the Appendix as

Appendix A. The Opinion of the District Court of the

Northern District of Illinois is not reported in the official

reports but is reported in the unofficial reports at 1999 WL

754568 and is included in the Appendix as Appendix B. The

District Court ordered entry of the final judgment on

September 1, 1999, which is printed in the Appendix as

Appendix D.

JURISDICTION

The United States Court of Appeals for the Seventh

Circuit issued its Opinion on November 3, 2000. On

November 17, 2000, Petitioner filed a Petition for Rehearing

and Suggestion for Rehearing En Banc which the United

States Court of Appeals denied on December 4, 2000 and is

included in the Appendix as Appendix C. This Petition for

Writ of Certiorari is filed within 90 days of the denial of the

Petition for Rehearing. The Court’s jurisdiction is invoked

pursuant to 28 U.S.C. §§ 1254(1) and 2106.

STATUTORY PROVISIONS INVOLVED

Civil Rights Act of 1964

42 U.S.C. § 2000e-2(a)(1)

(a) Employer practices

It shall be unlawful employment practice for an

employer--

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race,

color, religion, sex, or national origin;

STATEMENT OF THE CASE

Ford Motor Company (“Ford”) is an automobile

manufacturer with a sheet metal stamping plant in Chicago

Heights, Illinois (hereinafter referred to as “Ford Plant”).

Mr. Spearman was assigned to the Ford Plant in May 1992

and, during the years in question, was part of an assembly

line responsible for pressing or molding sheet metal from a

machine. Two male co-workers, Gregory Curtis and Steve

Neeley, also worked with Mr. Spearman on the line.

From the onset of Curtis’ employment wiih Ford, he

immediately believed Mr. Spearman was a homosexual

because of the perceived feminine characteristics Mr.

Spearman displayed. Curtis held this belief even though Mr.

Spearman never advised anyone at Ford he was a homosexual.

Curtis came to this conclusion because he believes

homosexuals possess tendencies similar to those he finds in

females, such as a more graceful walk or the way they express

themselves with their hands. Curtis admits he believed Mr.

Spearman carried some of these female tendencies and, often,

Curtis and Ford employees made comments questioning Mr.

Spearman’s masculinity.

Curtis expressed his hostilities towards Mr. Spearman

almost immediately upon his hiring at Ford in 1995. Between

1995 and 1997, Mr. Spearman frequently endured a barrage

of threats of physical harm, theft of his property and gender

based name calling. Often, especially during angry

2

confrontations, Curtis referred to Mr. Spearman as a “selfish

bitch,” or a “cheap-ass bitch.” One co-worker understood

that using the term “bitch” is the same as calling someone a

woman. Another co-worker, whom Mr. Spearman did not

even know at the time, called Mr. Spearman a “fucking jack-

off pussy ass.”

Periodically, Mr. Spearman verbally complained to

management about his mistreatment and on several occasions,

sent detailed written complaints to the employee relations

department. Ford took little or no remedial action to the

threats and harassment and did not record a written statement

from witnesses until over two years following Mr.

Spearman’s first written complaint.

As the threats and taunts continued, co-workers’

gestures and ridicule of Mr. Spearman increased. Curtis

almost daily failed to report to work or return from scheduled

breaks on time. Since Mr. Spearman was a utility relief

worker responsible for relieving all line members for timely

scheduled breaks, habitual tardiness by line workers would

regularly interfere with Mr. Spearman’s timely collective

bargained breaks. Also within the plant, graffiti appeared

depicting Mr. Spearman as a professional male entertainer

(RuPaul) who regularly dresses as a female. The graffiti

Stated in part “RuPaul RuSpearman.” Other graffiti at the

plant attempted to spell Mr. Spearman’s name in part with the

word “sperm” ("Ed SPERMan"). In a sexual harassment

training seminar at the plant, Mr. Spearman’s supervisor was

demonstrating an example of male on male sexual harassment

to a group of co-workers and hypothesized that if Mr.

Spearman attempted to touch Curtis in an inappropriate way,

this could be viewed as sexual harassment. The co-workers

at the seminar laughed.

In response to being informed that Mr. Spearman had

identified him in a complaint submitted to labor relations, a

supervisor assigned Mr. Spearman the job of cleaning the

windows in a press while the machine was operating and in

production. Mr. Spearman left that day and took a five month

medical disability leave due to depression. During this leave,

Mr. Spearman was treated at a hospital and received follow

up treatment from a doctor and a therapist. Almost

immediately upon returning to work from disability leave,

Mr. Spearman discovered that his tool box had been

vandalized and destroyed and the tools inside stolen. Despite

repeated complaints, no Ford employees had been disciplined

for this conduct.

In fact, the labor representatives responsible for

investigating sexual harassment complaints ridiculed Mr.

Spearman’s complaints. Upon receiving a final written

complaint, a labor representative wrote that Mr. Spearman

was “the root of more problems” and that Mr. Spearman

“thought” his supervisor was discriminating against him. The

representative continued in an electronic transmission to other

labor representatives that Mr. Spearman’s complaints were

causing him such “mental anguish,” that he would have to

visit a “neighborhood counselor” (i.e. have a beer after

work).

Ford also investigated male and female complaints of

sexual harassment disparately. Ford claims to have in place

a “zero tolerance” policy on sexual harassment which results

in these complaints being investigated promptly and

thoroughly. In the five years preceding June 1, 1998, the

Ford Plant received approximately twenty-five formal

complaints of sexual harassment, with Mr. Spearman’s

complaint being the only male complaint of sexual

harassment. In implementing this “zero tolerance” policy,

4

Ford admits other complaints of female sexual harassment at

the Ford Plant are addressed thoroughly and promptly. Mr.

Spearman’s complaints of sexual harassment, however, were

made the subject of jokes by management and co-workers. In

fact, almost two years passed before Ford first recorded

written statements of witnesses, and no employee has been

disciplined for the conduct directed towards Mr. Spearman.

REASONS FOR GRANTING WRIT

ARGUMENT 1

THE COURT OF APPEALS DECISION

FAILED TO CONSIDER THE EVIDENCE

DEMONSTRATING THAT THE

HARASSMENT WAS MOTIVATED IN

PART BY THE CO-WORKERS’

PERCEPTION OF HOW MR. SPEARMAN

PROJECTED HIS MASCULINITY.

If a female is singled out for disparate treatment

because she fails to conduct herself in a manner typically

associated with females, or because she is perceived to be too

masculine in her presentation and demeanor, an actionable

claim under Title VII for sex discrimination is presented.

Price Waterhouse y. Hopkins, 490 U.S. 228, 250,109 S.Ct.

1775, 1790-91 ( 1989). Conversely, if a man is singled out

for harassment because he is perceived as failing to present

himself in a manner typically associated with males, or

because he is perceived to be too feminine in his presentation

and demeanor, an equal application of the law dictates that a

claim under Title VII is presented.

The issue of male sexual harassment under Title VII

based on sexual Stereotype has not been addressed by this

5

court. If an employer is forbidden from making employment

decisions predicated on “stereotyped” impressions that males

or females cannot perform certain tasks (Los Angeles v.

Manhart, 435 U.S. 702, 707, 98 S.Ct. 1370, 1375 (1978)),

then this court should decide the equally important issue of

male sexual harassment based on stereotypical impressions.

Other courts outside the Seventh Circuit have looked

favorably on the issue. The Second Circuit in Simonton v.

Runyon, 232 F.3d 33 (2nd Cir. 2000) discussed, but did not

decide, the issue of sexual stereotyping and whether or not a

male could present a cognizable claim under Title VII using

this theory. The court pointed out that such a claim would not

“bootstrap protection for sexual orientation into Title VII

because not all homosexual men are stereotypically feminine

...” Simonton, 232 F.3d at 38. As Simonton notes, other

cases have likewise found that Title VII should forbid

discrimination based upon a failure to meet stereotypical

masculinity expectations. Higgins v. New Balance Athletic

Shoe, Inc., 194 F.3d 252, 261 (f.n. 4)(1st Dist. 1999);

Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000).

Respectfully, the published decision of the court of

appeals affirming the entry of summary judgment to Ford

disregarded the evidence submitted by Mr. Spearman in

support of this claim and assumed that the perpetrators in this

instance were motivated in their conduct because of Mr.

Spearman’s sexual orientation, not because of his sex.

Referring to Mr. Spearman as a “bitch” and comparing him

to a professional entertainer whose routine is to dress in

female costume, the court of appeals concluded, purportedly

confirmed that these workers were hostile to his sexual

Orientation, not his “sex.” Spearman v. Ford Motor

Company, 231 F.3d 1080, 1086 (2000). However, Mr.

Spearman never advised anyone at the Ford Plant that he was

a homosexual. Therefore, it was erroneous for the court of

6

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appeals to conclude co-workers acted because of Mr.

Spearman’s sexual orientation since co-workers were not

certain of his preference.

Further, the words used to describe Mr. Spearman

indicate the motive for the co-workers’ actions. The court of

appeals’ conclusion on why co-workers acted ignores

evidence presented by Mr. Spearman and wrongly assumes

motivating conduct must be mutually exclusive: i.e., if co-

workers acted because of a co-worker’s perceived sexual

orientation, they could not possibly act because of his “sex.”

Congress, however, has concluded that where there is more

than one motivating factor for this mistreatment, Mr.

Spearman may recover if sex was a “motivating factor” in the

co-workers’ actions, “even though other factors also

motivated the practice.” 42 U.S.C. § 2000e-2(m).

Certainly, Mr. Spearman has presented sufficient

evidence, which was not considered by the court of appeals,

for a jury to conclude “sex” was a motivating factor in the

action taken against him. Since judgment was entered against

Mr. Spearman in response to a motion for summary

judgment, the court of appeals should have considered all of

the evidence in a light most favorable to Mr. Spearman and

allowed a jury to determine if Mr. Spearman’s “sex” was a

motivating factor for the harassment. Conversely, the trial

court considered the evidence and the issue extensively and

found Mr. Spearman was in fact singled out because of his

sex. App. B at 27a.

Section 703(a)(1) of Title VII makes it an unlawful

employment practice “for an employer . . . to discriminate

against any individual with respect to his compensation,

terms, conditions or privileges of employment, because of

such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). A

7

plaintiff may make out a Title VII violation by proving that

discrimination based on sex has created a hostile or abusive

work environment. Meritor Savings Bank v. Vinson, 477

U.S. 57, 66, 106 S.Ct. 2399, 2405 (1986). If the harassment

is so “severe and persuasive” as to alter the victim’s

employment and thereby create an “abusive working

environment,” Title VII is violated. /d., at 67, 106 S.Ct. at

2405-06 (citation omitted). To be actionable, the hostility

must be objectionable both objectively and subjectively;

hostility that a reasonable person and that plaintiff himself

find abusive and hostile. Harris v. Forklift Systems, Inc., 510

U.S. 17, 21-22, 114 S.Ct. 367, 371 (1993).

Recently, the Supreme Court in Oncale v. Sundowner

Offshore Services, Inc., 523 U.S.75, 81, 118 S.Ct. 998, 1002

(1998) held that same sex harassment is actionable under Title

VII so long as a plaintiff proves the discrimination was

“because of .. . sex.” Although this court in Oncale set forth

examples of the method of proof a plaintiff may use to present

an actionable Title VII claim of sexual harassment, this Court

has not addressed the viability of a male’s claim of sexual

stereotyping under Title VII. In a case similar to this case,

Doe v. City of Belleville, 119 F.3d 563, 580-81, 7th Cir.

(1997) abrogated by 118 S.Ct. 1183 for analysis in light of

Oncale, the Seventh Circuit held that where a male was

singled out by male co-workers for abuse because of the way

he projected his gender and because he did not conform to co-

workers’ view of appropriate masculine behavior, a claim

under Title VII is presented. Although vacated by Oncale,

Doe’s rationale is not defective even in light of Oncale.' In

' Judge Rovner, presents in Doe a thoroughly researched

historical analysis on why sexual stereotyping of males is an action

“because of . . . sex” under Title VII.

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DEM CRD ALO Fin pe Noetst .

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Oncale, the Supreme Court recognized that a plaintiff is not

required to prove sexual attraction as the motivation for the

harassment. Oncale, 118 S.Ct. at 1002. Although the Court

noted as two examples of same sex harassment where the

perpetrator is not a homosexual (one where there is evidence

of hostility to the presence of a specific gender and the other

via evidence of treatment of opposite sex members (Oncale,

118 S.Ct. 1002)), these examples were not exhaustive. In fact,

Oncale involved all-male actors without evidence of all-male

bias. Doe also recognized that one may be discriminated

against on the basis of “sex” when referenced or designated

in gender specific language. Doe, 119 F.3d at 580. See also,

Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999) (gender

based and sexually charged epithets directed towards a victim

may provide a jury with evidence that the perpetrator’s

actions are based on sex).

As it relates to women, the Supreme Court has

recognized that sexual stereotyping is actionable conduct

based on “sex” under Title VII. In Price Waterhouse, the

Supreme Court found that an actionable claim under Title VII

may be presented where the evidence shows that sex

stereotyping played a motivating role in the decision

challenged. Price Waterhouse, 490 U.S. at 250, 109 S.Ct. at

1790-91. This court should decide the equally important issue

that harassment against men based on sex stereotyping is

actionable under Title VII. Here, Mr. Spearman’s co-

workers have demanded certain features of masculinity in the

male workers’ appearance. If workers do not exhibit these

features, action is taken in the form of assault, ridicule and

contempt. Not fitting that mold of the ideal male, Mr:

Spearman endured the campaign of harassment described. In

short, Ford’s employees took action because Mr. Spearman

was not a “true” male in the eyes of the employees. Just as

when an employer denies job opportunities because a woman

9

applicant is too aggressive and that women in general should

not be, Mr. Spearman may present a Title VII claim if the

terms and conditions of his employment are altered because he

was not aggressive enough and men in general should be.

The evidence in this case was sufficient to allow a jury

to decide if the harassment endured by Mr. Spearman was

because of sex. By Curtis’ own admissions, he believes he is

able to detect feminine characteristics in Mr. Spearman.

Curtis and co-workers constantly questioned Mr. Spearman's

masculinity and Curtis himself reportedly referred to plaintiff

with a barrage of gender based names (e.g., “cheap ass

bitch,” “selfish bitch”) which one co-worker understood to

mean the equivalent of calling someone a woman. Another

co-worker referenced female anatomy in referring to Mr.

Spearman (i.e., “pussy ass”). In one instance, Mr. Spearman

was identified in graffiti as a male entertainer, RuPaul, who

dresses as a female. Since the terms used by the co-workers

to degrade and humiliate plaintiff were gender based, a jury

could conclude that Ford employees were engaging in “sex

stereotyping.” Doe, 119 F.3d at 580.

On summary judgment, the court should review all of

the evidence in the record and draw all reasonable inferences

in favor of the party opposing the motion. Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106

S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Even though the

court is to review the record as a whole, “it must disregard all

evidence favorable to the moving party that the jury is not

required to believe.” Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, __, 120 S.Ct. 2097, 2110

(2000). The court should not make credibility determinations

and weigh the evidence. Anderson vy. Liberty Lobby, Inc.,

477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202

(1986). These functions and the drawing of legitimate

10

inferences from facts is not for the court but for the jury. Id.

Mr. Spearman contends that there is sufficient evidence for

the jury to conclude he was harassed because of his sex. A

jury was not required to believe Mr. Spearman was harassed

because of his sexual preference.

ARGUMENT 2

AN EMPLOYEE WHO DEMONSTRATES

THAT HIS EMPLOYER AGGRESSIVELY

INVESTIGATES FEMALE COMPLAINTS

OF SEXUAL HARASSMENT AND

DISREGARDS MALE SEXUAL

HARASSMENT COMPLAINTS

PRESENTS A COGNIZABLE CLAIM OF

SEXUAL DISCRIMINATION UNDER

TITLE VII.

During the time of the incidents complained of, the

Seventh Circuit held that males singled out for harassment

because of the way they projected their gender and because of

their non-conformity with a perceived masculine behavior

have actionable claims under Title VII. Doe, 119 F.3d at

580-81. Mr. Spearman presented unrebutted evidence that

complaints of female sexual harassment receive prompt

remedial action from Ford in furtherance of Ford’s Title VII

obligations. However, the only male employee claim of

sexual harassment was not only disregarded, but Ford

officials engaged in the very abusive ridicule which led to the

Title VII claim itself. The investigator joked to colleagues

about Mr. Spearman’s complaint. Mr. Spearman was

subjected to ridicule by supervisors and co-workers and much

of the harassment occurred in the presence of supervisors.

Mr. Spearman contends male complaints of actionable sexual

harassment were disregarded while female complaints were

11

promptly addressed. This type of disparate treatment of male

and female complaints is actionable under Title VII.

Nabozny v. Podlesny, 92 F.3d 446, 454-56 (7th Cir.

1996) involved a male student’s complaints of harassment by

other students. The student brought a claim under 42 U.S.C.

§ 1983 and the Seventh Circuit held that the Equal Protection

Clause prohibited a school district from protecting the rights

of female students to be free from sexual harassment while

disregarding similar male complaints of sexual harassment.

Like the Plaintiff in Nabozny, Ford disregarded Spearman’s

claims and ridiculed his complaints. This evidence of

difference in treatment among members of the opposite sex is

probative of Ford’s intent to treat male employees differently

than female employees.

Although Nabozny admittedly involved an Equal

Protection claim and not a Title VII claim, the manner of

proving the Equal Protection claim supports the showing of

sex discrimination in Mr. Spearman’s claim. The fact that the

school district in Nabozny took prompt and remedial action

for complaints of female harassment claims but disregarded

the single male complaint of harassment was sufficient to

show that males and females were treated differently when it

came to the school district’s investigation of complaints of

harassment. See, Nabozny, 92 F.3d at 454-55 (“[wle find it

impossible to believe that a female lodging a similar complaint

would have received the same response”). Like the “boys

will be boys” response of the school district in Nabozny,

Ford’s investigator took a similar attitude by ignoring the

complaint and ridiculing Mr. Spearman’s claims.

Discriminating intent is inferred “from the mere fact

of differences in treatment” in investigating complaints of

sexual harassment of different sexes. Teamsters v. United

12

States, 431 U.S. 324, 335, n.15 (1977). Mr. Spearman

presented a prima facie case of sexual discrimination by

presenting evidence that he: 1) is a member of a protected

class (i.e., male); 2) he was qualified for the job and met the

legitimate expectations of his job; 3) he suffered an adverse

employment action in the form of harassment and inaction

towards his complaints; and 4) Ford treated similarly situated

females more favorably. Bragg v. Navistar Intl’l Trans.

Corp., 164 F.3d 373, 376 (7th Cir. 1998) (citation omitted).

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519, 113 S.

Ct. 2742, 2753-54 (1993). Ford’s own labor relations

supervisor admits that claims of female sexual harassment are

vigorously pursued whereas the evidence shows Mr.

Spearman’s claim, a male claim, is ridiculed and ignored.

Mr. Spearman presented a prima facie case of sex

discrimination in the manner Ford investigates complaints of

sexual harassment for male and female employees. Ford

failed to proffer a legitimate, nondiscriminatory reason for its

conduct in light of Plaintiff's prima facie case. Judgment in

favor of Mr. Spearman should have been entered. Hicks, 509

U.S. at 509, 113 S.Ct. at 2748.

13

CONCLUSION

For all of the reasons identified herein, a writ of

certiorari should be issued to review the decision of the

United States Court of Appeals for the Seventh Circuit and,

ultimately, to vacate and reverse the entry of summary

judgment for Ford below and remand the matter to the

District Court for trial

Respectfully submitted,

§

Peter Andjelkovich

Counsel of Record

Peter Andjelkovich & Associates

39 S. LaSalle Street, Suite 200

Chicago, IL 60603

(312) 782-8345

Counsel for Petitioner

14

:

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

[Filed November 3, 2000]

No. 99-3538

EDISON K. SPEARMAN, )

Plaintiff-Appellant,

FORD MOTOR COMPANY,

Defendant-Appellee.

—s — — — — — —

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 98 C 452--David H. Coar, Judge

Argued April 5, 2000-Decided Nov. 3, 2000

Before MANION, KANNE, and EVANS, Circuit Judges

MANION, Circuit Judge. Edison Spearman sued his

current employer, Ford Motor Company, alleging that Ford

la

Court of Appeals Opinion - 11/3/00

violated Title VII by subjecting him to a hostile environment

of sexual harassment, retaliating against him for opposing

sexual harassment, and for discriminating against him on the

basis of his sex. Ford moved for summary judgment, which

the district court granted. Spearman appeals, and we affirm.

Edison Spearman is a black man and a homosexual '

who has been working for Ford since 1990. In October 1995,

Spearman worked as a "blanker operator" at Ford's Chicago

Heights Stamping Plant, where he operated press machines

that "blank" or "stamp" sheet metal into dimensional form.

In the summer of 1997, Spearman was promoted to the

position of "blanker utility" worker, and assigned to relieve

two blanker operators (Gregory Curtis and Steve Neeley) for

their work breaks, lunch breaks and other rotations.

Spearman filed his first of several complaints of

harassment on December 8, 1995, in which he reported that

since his assignment as a blanker operator in October 1995,

Curtis constantly took personal items (pens, newspapers, and

gloves) from him without his permission. When Spearman

told Curtis to stop, Curtis (a black man) called Spearman a

"nigger" and a "selfish bitch." Curtis would also hound

Spearman for lunch money, and then call him a "cheap ass

bitch” if his requests were occasionaliy denied. Following a

' Spearman testified at his deposition that he is a

homosexual, but he claims that he never made that known to

anyone at Ford.

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Court of Appeals Opinion - 11/3/00

glove-snatching incident, Spearman had two meetings with his

union representative and Curtis to resolve the matter.

Spearman reported no further incidents of harassment

until May 16, 1997, when he filed a written complaint

concerning an altercation with Curtis over the timing of lunch

breaks. Curtis confronted Spearman, called him a “little

bitch," told him that he hated his "gay ass," and threatened to

go to Spearman's residence in Indiana and "f---- [his] gay

faggot ass up." To defuse the situation, a foreman assigned

Spearman and Curtis to different press areas for the balance

of the shift. The following week, labor relations investigated

the matter and held two meetings with Spearman, Curtis and

a union representative.

Curtis and Neeley testified that they and their co-

workers at Ford suspected that Spearman was a homosexual.

According to Curtis, he thought that Spearman was

homosexual when they first met and Spearman supposedly

took “a full look" at Curtis like a man would look at a

woman. Curtis also opined that other blanker operators at

Ford were uncomfortable with Spearman because they

observed that he "looked [them] over" like a man would "take

a full look" at a woman, that he got too close to his male co-

workers when he talked to them, and even "rubbed up

especially close" to some of them. Curtis also testified that

one coworker started "squirming" when others teased him that

Spearman had a "crush" on him. And Curtis also claimed that

his brother-in-law and a coworker told him that they saw

Spearman at gay nightclubs.

According to Spearman, Curtis continually harassed

him after the May 1997 incident by reporting to work late and

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returning from his breaks late in order to disrupt Spearman's

relief schedule as a utility worker, and thus deprive him of his

breaks and lunches. Curtis's negative behavior toward

Spearman continued until he was moved to another press

machine (and away from Spearman) in October 1997.

Spearman submitted another written complaint

concerning a June 21, 1997 argument with Neeley over the

timing of a break. Asa blanker utility worker, Spearman told

Neeley to take a break, but Neeley refused, leaned into

Spearman's face, and taunted him by telling Spearman to hit

him. In his complaint, Spearman wrote: "[T]here's a

constant problem with Steve, when it comes to breaks; since

I've become utility, he rebels and insist [sic] on debating me

about how and when I relieve." Labor relations responded by

conducting a meeting with all of the parties involved in the

matter.

In June 1997, Spearman discovered graffiti on the

bulletin board that stated: "Aids kills faggots dead. . .

RuPaul, RuSpearman."* Spearman waited five months to

report the incident, and when he did, labor relations

representatives promptly painted over it the following day.

On October 21, 1997, Spearman delivered another

complaint to Ford that involved an altercation with George

Pearson (who was temporarily assigned to work with

Spearman) about the timing of a break. While Pearson was

leaving his work station, he said to Spearman, "You f----ing

jack-off, pussy-ass," and saluted Spearman with his middle

? RuPaul is the name of a black, male drag queen and

entertainer.

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finger. Spearman reported the incident to his foreman,

Anthony Perez, who assured Spearman that he would discuss

the matter with Pearson and "discipline him." Shortly after

Spearman filed his complaint about the incident, a labor

relations representative investigated the matter and conducted

a meeting with Spearman and his union representative.

In November 1997, Spearman discovered more graffiti

outside a portable toilet that stated: "Ed Sperman [sic] is a

fag and has AIDS" and "Edison Sperman [sic] is gay." Labor

relations representatives painted over the graffiti immediately

after Spearman's report.

Ford received another letter from Spearman around

November 24, 1997, in which he complained that he was

being harassed by Perez, who used the following instructional

hypothetical at a department meeting about sexual harassment:

Say for instance, Greg and Ed are in the back

bringing in a coil, and Ed touches Greg ina

way that made him feel uncomfortable, that

can be a charge of sexual harassment.

Spearman believed that Perez's hypothetical was about

himself (Ed) and Greg Curtis, and thus it was "totally

inappropriate" and harmful to Spearman because he and

Curtis had been involved in several altercations in the past.

Perez testified that he was not referring to Spearman in the

example, but to Ed Rolff, one of Spearman's co-workers.

In the same letter, Spearman also complained that

Perez had offered to give him a hug on two separate

occasions. On the first occasion, Spearman admits that Perez

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greeted him with a hug because he showed up for work during

a staff shortage in the summer of 1997. But Spearman stated

that he "felt very awkward" about Perez's second offer of a

hug that occurred when Spearman was confused about

overtime duties and consulted Perez for advice. Perez

testified that Spearman appeared to be distraught because the

press machine was not working, and that Perez offered to give

him a hug to lift his spirits.

During the afternoon of November 24, 1997, Perez

instructed Spearman to perform housekeeping duties and wash

the windows of the press machines for about an hour before

the end of his shift. Spearman believed that his assignment

was punitive and that Perez was retaliating against him for his

November 17, 1997 harassment complaint about Perez's

instructional hypothetical and offers to hug Spearman. He left

work that day, went on medical leave in December 1997, and

did not return to work until May 4, 1998. Perez testified that

he assigned similar housekeeping tasks to other utility workers

and operators to keep them busy when they were not

operating the press machines.

During his medical leave, Spearman _ received

treatment for depression. When he returned to work after a

five-month absence, he discovered that his tool box was

destroyed and that his tools had been stolen.

Spearman then sued Ford, alleging that it violated Title

VII by subjecting him to a hostile environment of sexual

harassment; by retaliating against him because he filed

complaints opposing sexual harassment; and by discriminating

against him because of his sex by failing to investigate his

sexual harassment complaints as promptly as_ similar

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complaints from female employees. Ford moved for

summary judgment. The district court granted Ford's motion,

concluding that while Spearman established a reasonable

inference that he was harassed because of his sex, his sexual

harassment claim failed because he did not show that the

harassment was severe enough to cause a change in his

employment conditions. The district court also denied

Spearman's retaliation claim by concluding that he failed to

establish a prima facie case by showing that he suffered an

adverse employment action. The court did not address

Spearman's sex discrimination claim. Spearman appeals.

Il.

"We review the district court's entry of summary

judgment de novo," Miller v. American Family Mut. Ins. Co..,

203 F.3d 997, 1003 (7th Cir. 2000), viewing all of the facts,

and drawing all reasonable inferences from those facts, in

favor of the nonmoving party. /d. Summary judgment is

proper if the record shows that "there is no genuine issue as

to any material fact and that the moving party is entitled to

judgment as a matter of law." Silk vy. City of Chicago, 194

F.3d 788, 798 (7th Cir. 1999) (citing Fed.R.Civ.P. 56(c)).

Title VII prohibits an employer from harassing an

employee "because of [the employee's] sex."2 Oncale v.

* This provision of Title VII provides that: "{i]t shall be an

unlawful employment practice for an employer . . . to discharge

any individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's race, color, religion,

sex, Or national origin." 42 U.S.C. § 2000e-2(a)(1).

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Court of Appeals Opinion - 11/3/00

Sundowner Offshore Services, Inc., 523 U.S. 75, 78, 118

S.Ct. 998, 140 L.Ed.2d 201 (1998); 42 U.S.C. § 2000e-

2(a)(1). Same-sex sexual harassment is actionable under Title

VII "to the extent that it occurs ‘because of' the plaintiff's

sex." Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007

(7th Cir. 1999). We have stated that "[t]he phrase in Title VII

prohibiting discrimination based on sex" means that "it is

unlawful to discriminate against women because they are

women and against men because they are men." Ulane v.

Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).

In other words, Congress intended the term "sex" to mean

"biological male or biological female," and not one's sexuality

or sexual orientation. See id. at 1087. Therefore, harassment

based solely upon a person's sexual preference or orientation

(and not on one's sex) is not an unlawful employment practice

under Title VII. /d. at 1085; see also Hamner v. St. Vincent

Hosp. and Health Care Center, Inc., 224 F.3d 701, 704 (7th

Cir. 2000).

A. Hostile Environment Claim

Spearman first argues on appeal that he was sexually

harassed at Ford in violation of Title VII. He claims that the

vulgar and sexually explicit insults and graffiti of his

harassers were motivated by "sex-stereotypes" because his co-

workers perceived him to be too feminine to fit the male

image at Ford. His contention relies primarily on Curtis's

testimony that there is a "masculine" environment at the Ford

plant, implying that he questioned Spearman's masculinity.

Spearman also contends that Curtis engaged in sex stereotypes

when he called Spearman a "bitch," which, according to

another utility worker at Ford (David Gibson), meant that

Curtis called Spearman a "woman." Moreover, Spearman

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asserts that the graffiti associating him with a drag queen

(RuPaul) proves that his co-workers perceived him to be too

feminine to work at Ford. And he claims that sex stereotypes

motivated Perez to harass him with the window-washing

assignment, which is a function "traditionally reserved for

women" (a view that could also be labeled sex stereotyping).

While sexually explicit language may constitute —

evidence of sexual harassment, it is not "always actionable,

regardless of the harasser's sex, sexual Orientation, or

motivations." See Oncale, 523 U.S. at 79, 118 S.Ct. 998.

The plaintiff must still show that he was harassed because of

his sex. /d. Similarly, while sex stereotyping may constitute

evidence of sex discrimination, "[rjemarks at work that are

based on sex-stereotypes do not inevitably prove that gender

played a part in a particular employment decision. The

plaintiff must show that the employer actually relied on [the

plaintiff's] gender in making its decision." Price Waterhouse

v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 104 L.Ed.2d

268 (1989). Therefore, according to Oncale and Price

Waterhouse, we must consider any sexually explicit language

Or stereotypical statements within the context of all of the

evidence of harassment in the case, and then determine

whether the evidence as a whole creates a reasonable

inference that the plaintiff was discriminated against because

of his sex.

Here, the record clearly demonstrates that Spearman's

problems resulted from his altercations with co-workers over

work issues, and because of his apparent homosexuality. But

he was not harassed because of his sex (i.e. not because he is

aman). His harassers used sexually explicit, vulgar insults to

express their anger at him over work-related conflicts.

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However, these conflicts did not arise because he is a man.

Curtis directed insults at Spearman to irritate or provoke him

during three specific arguments about lunch money, small

personal items, and the timing of lunch breaks. And Pearson

directed a barrage of derogatory remarks at Spearman after he

unsuccessfully protested Spearman's order to take a break. It

is clear that Curtis and Pearson lodged sexually explicit

insults at Spearman to express their acrimony over work-

related disputes, and not to harass him because he is a man;

and such conduct does not constitute sexual harassment. See

Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997)

(sexually explicit remarks among male co-workers were

"simply expressions of animosity or juvenile provocation,"

and were not directed at the plaintiff because of his sex).

The record also shows that Spearman's co-workers

maligned him because of his apparent homosexuality, and not

because of his sex. The testimonies of Curtis and Neeley

clearly demonstrate that Spearman's harassers were motivated

by their suspicion of Spearman's sexual orientation and his

perceived desire for some sort of physical intimacy with them.

And even Spearman's understanding of Perez's instructional

hypothetical indicates that Perez teased him about his

homosexuality. Moreover, Spearman's coworkers directed

stereotypical statements at him to express their hostility to his

perceived homosexuality, not to harass him because he is a

man. See Price Waterhouse, 490 U.S. at 251, 109 S.Ct.

1775. Curtis called him a "bitch" which, according to

Gibson, means a "woman," or a "faggot." And the graffiti

that specifically stated that Spearman is "gay," a "fag," and

compared him to a drag queen confirms that some of his co-

workers were hostile to his sexual orientation, and not to his

SeX.

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Title VII is not a "general Civility code" for the

workplace, see Oncale, 523 U.S. at 81, 118 S.Ct. 998; it

does not prohibit harassment in general or of one's

homosexuality in particular. Likewise, sexually explicit

insults that arise solely from altercations over work-related

issues, while certainly unpleasant, do not violate Title VII.

Because Spearman was not harassed because of his sex, his

hostile environment claim fails. Oncale, 523 U.S. at 78, 118

S.Ct. 998.

B. Retaliation Claim

Spearman's next argument on appeal is that Perez

assigned him the window-washing task to retaliate against him

for his written complaint about Perez's harassment, in

violation of Title VII.

Title VII "protects persons not just from certain forms

of job discrimination [and harassment], but from retaliation

for complaining about the types of discrimination it

prohibits."* Miller, 203 F.3d at 1007: 42 U.S.C. § 2000e-

3(a). To prevail on a claim of retaliation, the plaintiff must

Show that: (1) he complained about conduct that is prohibited

by Title VII; (2) he suffered an adverse employment action:

and (3) the adverse employment action was caused by his

Opposition to the unlawful employment practice. Miller, 203

* The retaliation provision of Title VII provides that: “Lit

Shall be an unlawful employment practice for an employer . . . to

discriminate against any individual . . . because he has opposed any

practice made an unlawful employment practice by [Title VII]." 42

U.S.C. § 2000e- 3(a).

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Court of Appeals Opinion - 11/3/00

F.3d at 1007. An "adverse employment action" alters the

"terms or conditions" of one's employment. Silk, 194 F.3d

at 804. It "constitutes a significant change in employment

status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision

causing a significant change in benefits as well as the ‘denial

of a raise or promotion.’ " /d. at 804 n. 16 (quoting

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118

S.Ct. 2257, 141 L.Ed.2d 633 (1998)).

Here, Perez assigned Spearman to wash the windows

of his two press machines for about an hour. Spearman

argues that the assignment was "degrading and punitive" and

thus diminished his job responsibilities as a utility worker.

But he also testified that he performed housekeeping duties as

a utility worker before, including sweeping around the press

machines and removing trash from the plant floor. Thus, the

additional task of washing the windows of the press machines

certainly did not "significantly" alter (if at all) the terms and

conditions of his employment. Perez testified that the

cleaning assignments were to keep Spearman busy with

necessary cleanup chores rather than having him "standing

there doing nothing" for an hour or so before his relief duties

were to begin. The assignment was nothing more than "a

mere inconvenience or an alteration of job responsibilities,"

Crady v. Liberty Nat. Bank and Trust Co. of Indiana, 993

F.2d 132, 136 (7th Cir. 1993), and thus Spearman's

retaliation claim fails.°

> The retaliation claim also fails because Spearman's

numerous complaints of co-worker abuse did not involve an

unlawful employment practice under Title VII, and there is no

evidence in the record that he even had a subjective belief that he

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C. Sex Discrimination Claim

Spearman's last claim on appeal is that Ford

discriminated against him on the basis of his sex by failing to

investigate his alleged sexual harassment complaints as

promptly as it investigated sexual harassment complaints from

female employees. To raise a prima facie case of sex

discrimination, Spearman must show that: (1) he belongs to

a protected class (in this case, males); (2) he performed his

job satisfactorily; (3) he suffered an adverse employment

action; and (4) Ford treated Similarly situated female

employees more favorably. See Greenslade v. Chicago Sun-

Times, Inc., 112 F.3d 853, 863 (7th Cir. 1997).

Spearman's discrimination \claim does not meet the

fourth test of the prima facie case. We have already

established that none of his complaints involved sexual

harassment, and there is no evidence in the record that

demonstrates that Ford perceived Spearman's complaints to be

about sexual harassment at the time he filed them. Therefore,

Spearman does not show that he was similarly situated to

female employees who filed sexual harassment complaints.

Furthermore, the record demonstrates that Ford sought to

resolve Spearman's complaints with investigations, meetings,

and by promptly painting over graffiti. Spearman provides no

evidence that Ford responded more vigorously to sexual

harassment complaints from female employees. Because

Spearman's complaints were not about sexual harassment, and

he provides no comparative evidence to support his disparate

was being sexually harassed. See Hamner, 224 F.3d at 707.

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Court of Appeals Opinion - 11/3/00

treatment claim, it fails.° Cheek v. Peabody Coal Co., 97

F.3d 200, 204 (7th Cir. 1996).

Although the district court determined that there was

evidence that Spearman was sexually harassed, but granted

summary judgment for Ford by concluding that the

harassment was not severe or pervasive enough to cause a

change in Spearman's employment conditions, we conclude

that Spearman's sexual harassment (hostile environment)

claim fails because he was not harassed because of his sex;

his retaliation claim fails because he did not suffer an adverse

employment action; and his disparate treatment claim fails

because he has not shown that he was similarly situated to

female Ford employees who filed sexual harassment

complaints, or that Ford treated female employees more

favorably. We AFFIRM.

° It is also questionable whether Spearman ever suffered an

adverse employment action, but because we conclude that his sex

discrimination claim fails because there is no evidence that he

meets the fourth test of a prima facie case, we decline to address

this issue.

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iii“ iii amar meaamaceei

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Filed September 9, 1999}

No. 98 C 0452

EDISON K. SPEARMAN.

Plaintiff,

VS.

FORD MOTOR COMPANY.

Defendant.

HONORABLE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Before this court is defendant Ford Motor Company's

("defendant" or "Ford") motion for summary judgment on

plaintiff Edison K. Spearman's ("plaintiff" or "Spearman")

two count complaint brought under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., for sexual

harassment and retaliation. For the following reasons, the

defendants’ motion is GRANTED.

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District Court Memo. Opinion & Order - 9/9/99

Statement of Facts

The plaintiff Spearman has worked at Ford's Illinois

Ford Heights Stamping Plant since 1992. (Dft's 12(M) Stmt.

{ 1). Spearman started at the plant as a Blanker Operator and

was promoted to the position of Blanker Utility in June of

1997. (Dft's 12(M) Stmt. 44 4--7). Blanker Operators feed

sheet metal coil into press machines and monitor the

machine's operation. Blanker Utilities assist the Blanker

Operators and relieve the Blanker Operators for breaks and

rotations. (Dft's 12(M) Stmt. ¢ 5). When Spearman was

promoted to Blanker Utility, the two Blanker Operators he

worked with were Gregory Curtis ("Curtis") and Steve Neeley

("Neeley"). (Dft's 12(M) Stmt. 4 7). Spearman still works as

a Blanker Utility, but he has not worked on the same set of

machines as Curtis and Neeley since May of 1998. (Dft's

12(M) Stmt. q 8).

Most of the incidents in question occurred in the later

half of 1997, but Spearman states that they began as early as

1995. (Dft's 12(M) Stmt. 4 9; PI's 12(M) Resp. 4 9). The

incidents involve primarily Curtis, Neeley, and Spearman's

supervisor Anthony Perez ("Perez").

The Curtis Incidents

Spearman states that incidents involving Curtis began

as early as October, 1995. (Dft's 12(M) Stmt. § 17; PI's

12(N) Stmt. 4 15). These incidents consisted mostly in crude

comments. For example, Curtis would regularly ask to

borrow money from Spearman for lunch. When Spearman

| would decline, Curtis would call Spearman a "nigger," a

"selfish bitch," and a "cheap ass bitch." (Dft's 12(M) Stmt. {

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District Court Memo. Opinion & Order - 9/9/99

18; Pl's 12(N) Stmt. ¢ 20). Another incident occurred in

December of 1995, at the beginning of a work shift, when

Spearman had a new pair of work gloves in his back pocket.

After Curtis had looked for a pair of gloves in the department

glove box for himself, he turned to Spearman, took the new

gloves out of Spearman's back pocket, and said, "Nigger, I'm

taking those." (PI's 12(N) Stmt. { 18). Spearman said no and

asked for the gloves back, but Curtis refused to return the

gloves.(Dft's 12(M) Stmt. { 19; Pl's 12(N) Stmt. q 19).

Spearman submitted a written complaint about the incident to

a union official on December 5, 1995. (Dft's 12(M) Stmt. ¢

20; PI's 12(N) Stmt. $ 21).

No other incidents were reported until May 15, 1997,

when Curtis and Spearman had a disagreement over the

timing of a lunch break. When Spearman informed Curts that

he was going to relieve him early for his lunch break, Curtis

confronted Spearman and called him a "little bitch." (PI's

12(N) Stmt. § 23). While Spearman reported this incident to

the foreman and the union representative at the plant, Curtis

responded by threatening to go to where Spearman lived and

“fuck [his] little gay ass up." (Dft's 12(M) Stmt. ¢ 23, 28:

PI's 12(N) Stmt. 4 23). Plant officials then assigned Spearman

and Curtis to separate press machines for the rest of the shift.

(Dft's 12(M) Stmt. { 28). The next day, Spearman submitted

a written statement of events to the Labor Relations Office at

Ford. (Dft's 12(M) Stmt. { 29; Pl's 12(N) Stmt. 4 25). The

Labor Relations Office scheduled a meeting between

Spearman and Curtis to discuss the incident. At that meeting,

Labor Relations Officials counseled Spearman and Curtis on

“how to get along" and told Spearman and Curtis that they

had good jobs and should not fight. (Dft's 12(M) Stmt. 30:

PI's 12(N) Stmt. ¥ 26). Ford states that the Labor Relations

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District Court Memo. Opinion & Order - 9/9/99

office conducted a follow up investigation after this meeting,

while Spearman states that no one ever questioned him about

the incident and an investigation did not occur until November

of 1997. (Dft's 12(M) Stmt. ¢ 30; PI's 12(N) Stmt. ¢{ 26,

27).

The Neeley Incidents

The incidents involving Neeley all occurred in 1997.

In May of 1997, Neeley and Spearman had a confrontation

over a piece of damaged equipment on the work floor.

Spearman was reporting the damage to the foreman when

Neeley lunged forward and started yelling, "shut the fuck up,

Ed, shut the fuck up." (Dft's 12(M) Stmt. ¢ 35; Pl's 12(N)

Stmt. ¢ 22). The foreman, Lance Lahew, shrugged his

shoulders and laughed. He stated to on-looking co-workers

that the exchange was only "shop talk" and the co-workers

started to laugh. (Dft's 12(M) Stmt. 4§ 35, 36; PI's 12(N) 4

22). As the foreman and other co-workers began examining

the damaged equipment, Neeley leaned over and whispered

into Spearman's ear that he knew that he could say anything

he wanted to Spearman as long as he did not touch him. (Dft's

12(M) Stmt. ¢ 37). Spearman submitted a written complaint

about the incident to the Labor Relations Office. (Dft's 12(M)

Stmt. ¢ 37).

Another incident occurred between Neeley and

Spearman over the timing of a break; however, neither party

stated when the incident occurred. Neeley started shoving up

against Spearman and said in his ear, "Hit me, I know you

want to hit me, hit me." Spearman said no and told Neeley to

leave him alone. (Dft's 12(M) Stmt. ¢ 40; Pl's 12(N) Stmt. 4

30). Later on in the shift, when Spearman was reporting the

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District Court Memo. Opinion & Order - 9/9/99

incident to a fellow employee, Neeley walked up and said to

Spearman, "Don't turn people against me. I know a lot more

people than you." (Dft's 12(M) Stmt. ] 41). Spearman

submitted a written complaint to the Labor Relations Office,

and the Labor Relations Office held a meeting between

Spearman, Neeley, and the union representative.' (Dft's

12(M) Stmt. ¢ 44).

The Pearson Incident

In October of 1997, when Spearman was relieving a

coworker named George Pearson for his break, Pearson called

Spearman a “fucking jag-off pussy ass" and made a crude

hand gesture with his middle finger. (Dft's 12(M) Stmt. q 45;

PI's 12(N) Stmt. ¥ 31). Spearman reported the incident to his

Supervisor, Perez, and Perez discussed the incident with

Pearson. (Dft's 12(M) Stmt. 4 46, 47). Spearman submitted

a written complaint to the Labor Relations Office. (Dft's

12(M) Stmt. § 49).

Interactions with Perez

Spearman presents two incidents where his supervisor,

Perez, hugged him or attempted to hug him. In the first

incident, Perez greeted Spearman at the beginning of his shift

by approaching Spearman and giving him a hug in front of

two employees. Spearman admits that the hug was non-sexual

in nature. (Dft's 12(M) Stmt. { 53). The second occurrence

was in November of 1997, when Perez offered to give

Spearman a hug when they were discussing the scheduling of

' Neither party submitted what occurred in that meeting.

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breaks. (Dft's 12(M) Stmt. 4 60). After the incident, Perez

asked Spearman if he was offended by the offer, and

Spearman answered no. (Dft's 12(M) Stmt. ¢ 61). Spearman

submitted a written complaint about this incident on

November 17, 1997. (PI's 12(N) Stmt. ¢ 39).

The other incident involving Perez occurred in

October, 1997 during a sexual harassment training for plant

workers. In a meeting that included 10 to 15 workers, Perez

was presenting the sexual harassment policy of Ford. (Dft's

12(M) Stmt. ¢ 54). He used various hypotheticals to describe

potential sexual harassment situations. In one hypothetical, he

described "Ed" touching "Greg" in a way that made "Greg"

feel uncomfortable. (Dft's 12(M) Stmt. 455; PI's 12(N) Stmt.

{ 33). Ed is Spearman's first name and Greg is Curtis’ first

name. The other coworkers at the meeting began to laugh at

the example. (PI's 12(N) Stmt. ¢ 38). However, Perez states

that he was not referring to Spearman in his example, but to

Ed Rolff, one of Spearman's coworkers. (Pi's 12(N) Stmt. {

34).

Graffiti

Spearman reported several pieces of graffiti throughout

the plant that referred to him personally in a derogatory

manner. In June of 1997, on the bulletin board near the work

area, graffiti was carved into the board that stated, "AIDS

kills," "faggots dead," and "RuPaul RuSpearman."? (Dft's

12(M) Stmt. { 66; PI's 12(N) Stmt. ¢ 28). Spearman did not

report the graffiti at first, because he did not want his

? RuPaul is the name of a male entertainer who cross-

dresses aS a woman.

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District Court Memo. Opinion & Order - 9/9/99

coworkers to see his reaction. (PI's 12(M) Resp. 4 67). After

the other various incidents had occurred, Spearman finally

reported the graffiti on November 14, 1997. Once he reported

the graffiti, two Labor Relations Office employees

accompanied Spearman to the bulletin board and painted over

the graffiti. (Dft's 12(M) Stmt. q 68).

In November of 1997, more graffiti appeared outside

of the portable toilet near the work area. On the wall of the

portable toilet was written "Ed SPERMan" and comments that

Spearman was gay and that Spearman had AIDS. (Dft's

12(M) Stmt. ¢ 69). Spearman reported the graffiti to the

Labor Relations Office. (Dft's 12(M) Stmt. 44 70, 71). The

Labor Relations Office reported that they the situation had

been "taken care of," but Spearman never revisited the site to

see if the graffiti was removed. (Dft's 12(M) Stmt. § 70).

Retaliation

After six months of these various incidents, events

came to a head near the end of November. On November Ff,

1997, Spearman submitted a complaint to the Labor Relations

Office about the hugging incidents with Perez as well as

Perez's behavior at the sexual harassment training. (Dft's Tab

L). On November 24, 1997, one hour before the end of

Spearman's shift, Perez requested that Spearman perform

housekeeping duties, including washing the windows of the

press machines. (Dft's 12(M) Stmt. § 73; Pl's 12(N) Stmt. ¢

40). Spearman objected, told Perez that he thought the

assignment was punitive, and requested that a union

committee man come down to the work floor. (Dft's 12(M)

Stmt. 4 76, 77). Perez left the floor to find the union

committee man, and when they returned, Spearman requested

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District Court Memo. Opinion & Order - 9/9/99

that he be able to go to the medical department because he had

a severe headache. (Dft's 12(M) Stmt. 4 78). After the

incident, Spearman met with a union representative and was

informed that he could not refuse cleaning assignments. (Dft's

12(M) Stmt. §¢ 80). While Spearman had previously

performed housekeeping tasks, he had never been assigned

washing windows. (Dft's 12(M) Stmt. ¢ 83; PI's 12(N) Stmt.

¢{ 41). Spearman stated that Perez had never previously

assigned Blanket Utilities the task of washing windows. (PI's

12(N) Stmt. 4 41). The defendant states that Perez assigned

Spearman the task because Spearman had down time and still

had an hour left on his shift. Also, the work floor was going

to be inspected the next day and needed to be cleaned. (Dft's

12(M) Stmt. 44 74, 75).

After the window washing incident, Spearman went on

medical leave in December of 1997 and did not return until

May 4, 1998. (PI's 12(N) Stmt. ¢ 43). During the time of

these incidents, Spearman suffered from depression.

Spearman was afraid to go to work, was worried about the

possible actions of his coworkers, and was humiliated by the

graffiti. (PI's 12(N) Stmt. ¢ 45). During his medical leave,

Spearman had in-patient hospital medicated treatment for his

depression and met with a therapist and a doctor about his

condition. (PI's 12(N) Stmt. ¢ 44). Spearman lost $16,281.54

in wages during his medical leave. (PI's 12(N) Stmt. { 56).

When he returned from his medical leave in May of 1998,

Spearman found his tool box crushed, broken open, and his

tools stolen. (PI's 12(N) Stmt. 4 46). As a result of all these

incidents, Spearman filed a two-count complaint under Title

VII, alleging sexual harassment and retaliation.

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‘District Court Memo. Opinion & Order - 9/9/99

Standard for Summary Judgment

Summary judgment is proper "if the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter if law." Fed.R.Civ.P.

56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308

(7th Cir. 1995). A genuine issue of material fact exists for

trial when, after viewing the record and all reasonable

inferences drawn from it ina light most favorable to the non-

movant, a reasonable jury could return a verdict for the non-

movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Hedberg v. Indiana Bell Tel. Co, 47 F.3d 928, 931

(7th Cir. 1995). The party moving for summary judgment

bears the initial burden of demonstrating that there is no

genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); Hedberg, 47 F.3d at 931. If this

burden is met by the movant, the non-movant must then set

forth specific facts to show that there is a genuine issue for

trial. Fed.R.Civ.P. 56(e); Celotex, 477 U .S. at 324. While

affidavits, depositions and interrogatories are acceptable

evidence for the non-movant to present, these are not the

exclusive forms of evidence that can be used in responding to

summary judgment. Wright, Miller & Kane Federal Practice

and Procedure: Civil 3d § 2721. In deciding a motion for

summary judgment, the court must read the facts in a light

most favorable to the non-movant. Cuddington v. Northern

Ind. Public Serv. Co., 33 F.3d 813, 815 (7th Cir. 1994).

However, Rule 56(c) mandates the entry of summary

judgment against a party "who fails to make a showing

Sufficient to establish the existence of an element essential to

that party's case, and in which that party will bear the burden

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of proof at trial." Celotex, 477 U.S. at 322. A scintilla of

evidence in support of the non-movant's position is not

sufficient to oppose successfully a summary judgment motion:

"there must be evidence on which they jury could reasonably

find for the [non-movant]." Anderson, 477 U.S. at 250.

Analysis

Sexual Discrimination and Hostile Environment

Title VII of the Civil Rights Act of 1964 provides in

part "[i]t shall be an unlawful employment practice for an

employer . . . to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges

of employment, because of .. . sex... "42 U.S.C. § 2000e-

2(a)(1). The Supreme Court has recognized that "[w]hen the

workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an

abusive working environment, Title VII has been violated."

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct.

367, 370 (1993). The environment must be both objectively

and subjectively offensive, one that a reasonable person would

find hostile or abusive, and one that the victim in fact did

perceive as such. /d., 510 U.S. at 21-22, 114 S.Ct. at 370-

371. In order to determine whether an environment is hostile,

the court must look at "all the circumstances," including the

"frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes

with an employee's work performance." /d., 510 U.S. at 23,

114 S.Ct. at 371.

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The Supreme Court has recognized not only that Title

VII protects men as well as women, Newport News

Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682,

103 S.Ct. 2622, 2630, but that Title VII recognizes same-sex

sexual harassment. Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 118 S.Ct. 998, 1001-1002 (1998). Same-

sex sexual harassment is actionable to the extent that it occurs

"because of" the plaintiffs sex. /d., 118 S.Ct. at 1002.

The Supreme Court in Oncale identified several ways

to find the inference of discrimination in a same-sex sexual

harassment situation. First, if there are "explicit or implicit

proposals of sexual activity," the inference could be drawn "if

there were credible evidence that the harasser was

homosexual."’ Oncale, 118 S.Ct. 1002. “But,” the court

clarified, "harassing conduct need not be motivated by sexual

desire to support an inference of discrimination on the basis

of sex." /d. The inference is also possible when, for example,

a woman harasses another woman "in such sex-specific and

derogatory terms . . . as to make it clear that the harasser is

* The sexual orientation of the perpetrator is irrelevant to

drawing the inference of sexual discrimination in a same-sex sexual

harassment situation. In the traditional male-female sexual

harassment scenario, courts do not inquire into the sexual

Orientation of the male perpetrator. Courts may (correctly or

incorrectly) assume the perpetrator is heterosexual. However, his

sexual orientation is irrelevant, since the relevant question is

whether the actions of the perpetrator created a hostile work

environment because the victim was singled out because of her sex.

The same relevant question should be the focus of the inquiry in a

Same-sex sexual harassment situation as well. See Johnson v.

Hondo, Inc., 125 F.3d 408, 415 (7th Cir. 1997).

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motivated by general hostility to the presence of women in the

workplace." /d. Finally, an inference can be drawn when

there is “direct comparative evidence about how the alleged

harasser treated members of both sexes in a mixed-sex

workplace." /d. Whichever method is used, the plaintiff "must

always prove that the conduct at issue was not merely tinged

with offensive sexual connotations, but actually constituted

‘discrimina[tion] . . . because of . . . sex." /d.

Before the Supreme Court's decision in Oncale, the

Seventh Circuit examined same-sex sexual harassment in Doe

v. City of Belleville, 119 F.3d 563 (7th Cir. 1997). Like the

Supreme Court in Oncale, the Seventh Circuit in Doe also

found that Title VII covers same-sex sexual harassment when

the harassment occurred "because of" the plaintiff's sex. 119

F.3d at 568. The Seventh Circuit outlined two ways a plaintiff

could prove that harassment in a same-sex situation was

because of sex. First, sexual harassment can be inferred form

the sexual character of the harassment itself, such as the use

of sexual propositions or sexual derogatory language. Since

the harassment has explicit sexual overtones, no additional

proof that the harassment was "because of" sex is necessary.

Id., 119 F.3d at 576. Second, same-sex sexual harassment can

be proven when the harassment is not necessarily overtly

sexual, but is focused on a particular gender or a particular

individual's projection of his or her gender. /d., 119 F.3d at

575. The court found that the key to each inquiry was that the

harassment altered the conditions of the plaintiff's work

environment so much as to make the environment hostile to

him or her as a man or as a woman. /d., 119 F.3d at 578.

"Thus, so long as the environment itself is hostile to the

plaintiff because of her [or his] sex, why the harassment was

perpetrated (sexual interest? misogyny? personal vendetta?

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misguided humor? boredom?) is beside the point.” /d., 119

F.3d at 577. Therefore, the key issues is that the plaintiff's

employment has now become conditioned upon his or her

willingness to endure harassment that is inseparable from his

or her gender. /d., 119 F.3d at 579.

This court recognizes that, in light of Oncale, the

Supreme Court vacated the judgment in Doe and remanded

the case to the Seventh Circuit. City of Belleville v. Doe, 118

S.Ct. 1183 (1999). The Seventh Circuit did not take another

opportunity to comment on Doe. However, since Oncale, the

Seventh Circuit ruled in another same-sex sexual harassment

case, Shepherd v. Slater Steels Corp., where the court

recognized that the examples outlined by the Supreme Court

were not exhaustive of the possible formulations of proof for

a same-sex sexual harassment case. 168 F.3d 998 (7th Cir.

1999). This court finds that the reasoning in Doe is not

inconsistent with Oncale and therefore Doe remains viable.

In the present case. there is enough evidence before

the court that the inference can be made that Spearman was

singled out for harassment "because of" his sex. Some of the

comments were sexually explicit, such as the threat from

Curtis that he would "fuck [his] little gay ass up." (Dft's

12(M) Stmt. ¢ 23). Also, Spearman appears to have been

singled out because of the way he projected his gender, or

how his gender was perceived by his co-workers. Co-workers

speculated on Spearman's sexual orientation based upon their

perception of him as a man, and not on any comment by

Spearman himself on his sexual orientation. (See, for

example, Curtis’ deposition, pp. 101 -106). Title VII does not

permit an employee to be treated adversely because his or her

appearance or behavior does not conform to gender

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Stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228,

251, 109 S.Ct. 1775, 1791 (1989). The Seventh Circuit

supported this reasoning in the sexual harassment context in

Doe. The Seventh Circuit found that the fact that the plaintiff

in Doe was singled out for harassment because the way he

projected his gender did not conform to his co-workers’ idea

of a way a "man" should act was sufficient proof of

harassment. Doe, 119 F.3d at 580. "[A] man who ts harassed

.. because .. . he exhibits his masculinity in a way that

does not meet his co- workers’ idea of how men are to appear

and behave, is harassed ‘because of’ his sex." Doe, 119 F.3d

at 581

Even though this court finds that there could be an

inference that Spearman was singled out “because of” his sex,

the court grants summary judgment to the defendant because

Spearman is not able to show that the harassment was

sufficiently severe or pervasive to cause a change in

employment conditions. The case law requires this court to

determine’ if a reasonable person in Spearman's position,

considering all the circumstances, would find the environment

created by the actions of Curtis, Neeley, Perez, and others,

hostile or sexually abusive. Oncale, 118 S.Ct. at 1003;

Shephard, 168 F.3d at 1008. The court can conceive of a

Situation where continuing comments on an individual's

sexual orientation, perceived or real, would create a hostile

environment.’ However, the set of facts in the present case

While the Seventh Circuit, at present, has decided that

discrimination based upon sexual orientation is beyond the reach of

Title VII, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084

(1984), a gay or lesbian, or someone who is perceived as so, can

bring a suit when he or she is discriminated against because of his

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District Court Memo. Opinion & Order - 9/9/99

does not create such a situation. For example, while the

comments that Curtis made were crude and ignorant, they

were not "so objectively offensive as to alter the conditions of

the victim's employment." Oncale, 118 S.Ct. at 1003. Also,

Curtis’ comments were not continuous, such as they were in

Shepherd, 168 F.3d 998 (7th Cir. 1999); Johnson, 125 F.3d

408 (7th Cir. 1997): or Doe, 119 F -3d 563 (7th Cir. 1996),

but were instead sprinkled over a period of two years. As for

the incidents with Neeley, while they were confrontational

and threatening, they were not sexual in any way. Neeley

never touched Spearman, never threatened Spearman in a

physically threatening manner, nor explicitly targeted

Spearman because of his Sex, gender, or perceived sexual

orientation. Granted, Neeley does not like Spearman and it

can be fairly inferred that his dislike stems from Spearman's

perceived sexual orientation. However, Neeley's conduct does

not rise to the severity of an abusive environment. Though

crude and ignorant, the conduct involved here does not

amount to a violation of Title VII. See, €.g. Shepherd, 168

F.3d 998 (7th Cir. 1999): Johnson, 125 F.3d 408 (7th Cir.

1997); Doe, 119 F.3d 563 (7th Cir. 1996). Title VII is not a

“general civility code of the American workplace,” and thus

personality clashes between coworkers that are not driven by

or her sex. Harassment can be motivated by many factors--sex as

well as sexual orientation--and just because one discriminatory

motivation as of yet is not recognized as impermissible under Title

VII does not release the employer from liability for discrimination

because of sex under Title VII. Therefore, continuous comments

by a harasser to a plaintiff, such as “fag,” “dyke,” "queer," could

be covered by Title VII. See. e. g., Nabozny v. Podlesny, 92 F.3d

446, 454-58 (7th Cir. 1996).

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discriminatory motives should be addressed elsewhere. /d., at

p. 1002.

Retaliation

In order to avoid summary judgment on his retaliation

claim, Spearman must show that 1) he engaged in a statutorily

protected activity; 2) he suffered an adverse employment

action; and 3) there is a causal link between the protected

activity and the adverse action. Essex v. United Parcel

Service, 111 F.3d 1304, 1309 (7th Cir. 1997); McKenzie v.

Illinois Department of Transportation, 92 F.3d 473, 483 (7th

Cir. 1996). Spearman argues that Ford retaliated against him

for filing complaints against their various employees. In

particular, Spearman argues that Perez retaliated against

Spearman for filing a complaint on November 11, 1997

regarding the hug incidents and the sexual harassment training

incident. (PI's Resp., pp. 15-17).

The Seventh Circuit has held that an adverse

employment action is indicated by a termination of

employment, a demotion evidenced by a decrease in wages or

salary, a less distinguished title, a material loss of benefits, or

significantly diminished responsibilities. Dey v. Colt

Construction and Development Co., 28 f.3d 1446 (7th Cir.

1994). Since Spearman holds the same position today as he

did in 1997, at the same plant, with no decrease in wages,

benefits, or title, the closest Spearman can come to this

standard is significantly diminished material responsibility by

being assigned the task of washing windows. Spearman fails

to meet this standard. While the parties dispute whether

window washing is a part of the job requirements of a Blanker

Utility, Ford puts forward a legitimate business reason for

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Perez asking Spearman to wash windows. Spearman had extra

time on his hands and the work floor needed to be cleaned to

prepare for an inspection the following day. Minor changes in

the routine for one single day does not rise to the level of an

adverse employment action. Smart v. Ball State University, 89

F.3d 437, 441 (7th Cir. 1996).

Conclusion

For the foregoing reasons, defendant Ford Motor

Company's ("defendant" or "Ford") motion for summary

judgment on plaintiff Edison K. Spearman's ("plaintiff" or

"Spearman") two count complaint brought under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq.,

for sexual harassment and retaliation, is GRANTED.

Entered:

/s/

DAVID H. COAR

UNITED STATES DISTRICT JUDGE

Dated: 9/1/99

31a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

[Filed December 6, 2000]

No. 99-3538

Edison K. Spearman,

Plaintiff-Appellant,

Ford Motor Company,

Defendant-Appellee.

A a A

December 4, 2000

Before

Hon. Daniel A. Manion, Circuit Judge

Hon. Michael S. Kanne, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

32a

Appeal from the United States

District Court for the Northern

District of Illinois, Eastern Division

No. 98 C 452

David H. Coar, Judge.

ORDER

Plaintiff-Appellant filed a petition for rehearing en

banc on November 17, 2000. No judge in regular active

service has requested a vote on the petition for rehearing en

banc, and all of the judges on the panel have voted to deny

rehearing. The petition is therefore DENIED.

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Filed September 1, 1999]

Case Number: 98 C 452

Edison Spearman

)

)

v. )

)

Ford Motor Company )

)

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the Court for

a irial by jury. The issues have been tried and the

jury rendered its verdict.

. Decision by the Court. This action came to trial or

hearing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS HEREBY ORDER AND ADJUDGED that Defendant

Ford Motor Company’s Motion for Summary Judgment on

Plaintiff Edison Spearman’s Two Count Complaint brought

under Title VII is Granted.

34a

Summary Judgment is entered in favor of the defendant Ford

Motor Company and against the plaintiff, Edison Spearman.

This action is Closed.

Michael W. Dobbins, Clerk of Court

/s/

Patricia McQurter-Figgs, Deputy Clerk

Date: 9/1/1999