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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 995

## Text

; 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
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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.

8

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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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Court of Appeals Opinion - 11/3/00

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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Court of Appeals Opinion - 11/3/00

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).

Ta

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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Court of Appeals Opinion - 11/3/00

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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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0887%3A1. Public record. Not legal advice.