May 29, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:11-cv-09147 -
Robert M. Dow, Jr., Judge.
Bauer, Barrett, and St. Eve, Circuit Judges.
Barrett, Circuit Judge.
Smith worked behind the meat counter at Rosebud Farm, a local
grocery store. After several years of ongoing sexual and
racial harassment from his male coworkers and supervisor,
Smith sued Rosebud. He claimed various violations of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981,
and the Illinois Gender Violence Act. The jury returned a
verdict for Smith. Rosebud appeals, maintaining that the
district court erred in denying its motions for judgment as a
matter of law and a new trial.
argues that it was entitled to judgment as a matter of law on
Smith's Title VII sex discrimination claim. To win, Smith
had to show more than unwanted sexual touching or taunting;
he had to show that the harassment occurred because of his
sex. Rosebud contends that Smith's evidence demonstrates
that the other men in the shop engaged in "sexual
horseplay," not sex discrimination. But Rosebud is wrong
about that: the evidence supports the inference that
Smith's coworkers harassed him because he was male. The
shop was a mixed-sex workplace, and only men were groped and
taunted. Because men were treated differently from women at
Rosebud, a reasonable jury could conclude that Smith was
tormented because of his sex.
also insists that the district court should have awarded it
judgment as a matter of law on Smith's § 1981
retaliation claim and granted a new trial because of
inflammatory statements that Smith's counsel made during
his closing argument. But Rosebud did not raise either of
these arguments below, so it has forfeited them. Its
challenges to the judgment uniformly fail.
2003, Robert Smith began working as a butcher at Rosebud
Farm, a small grocery store on the south side of
Chicago.Smith had been on the job for less than
three weeks when his male coworkers behind the meat counter
began harassing him by grabbing his genitals and buttocks.
Over the next four years, that behavior was consistent, if
not constant. At trial, Smith recalled the many times his
coworkers groped him, grabbed him, and even reached down his
pants. They repeatedly mimed oral and anal sex, both on Smith
and on each other. Carlos Castaneda, Smith's supervisor,
not only knew about the harassment, but he even participated
once or twice. And the group did not stop at aggressive
sexual contact- they also targeted him for his race, using
racial epithets and telling him "go back to
complained about the sexual harassment multiple times to no
avail. In January of 2008, he decided that enough was enough.
He filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) and the Illinois Department of
Human Rights, alleging that his coworkers had sexually
harassed him. He also claimed that Castaneda had
discriminated against him based on his race by giving him
fewer weekly work hours and sending him home for nine days
Castaneda received notice of the discrimination charges, he
told the meat-counter employees to stop "goofing
off" and quit the "horseplay." Smith's
coworkers changed their behavior after their meeting with
Castaneda, but not for the better. Behind the meat counter,
they banged their cleavers menacingly at him and passed by
him with large knives pointing out of the meat trays they
carried. Smith found his car-which he parked in the gated,
employee-only lot-with slashed tires and a cracked
windshield. Smith became increasingly frightened at work, and
he quit his job in June 2008 because of the
"intolerable" working conditions.
the EEOC issued him a Notice of Right to Sue, Smith brought a
host of claims against Rosebud and its employees, seeking
compensatory and punitive damages, as well as attorneys'
fees and costs. Four of Smith's claims went to trial: sex
discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.; race
discrimination under 42 U.S.C. § 1981; retaliation under
both statutes; and violations of the Illinois Gender Violence
Act, 740 ILCS 82/1, by two Rosebud employees, including the
general manager, Carlos Castaneda. The jury returned a verdict
for Smith on all claims.
raises three issues on appeal. It claims that the district
court should have granted it judgment as a matter of law on
the sexual harassment claim, because Smith failed to prove
that his male coworkers discriminated against him because of
his sex. It argues that it was also entitled to judgment on
the § 1981 retaliation claim: according to Rosebud,
there was no evidence that Smith's coworkers knew that he
had filed charges of racial discrimination against Rosebud;
thus, they could not have retaliated against Smith for filing
them. Finally, Rosebud complains ...