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In confirming the district court's rejection of Weaver's hostile work environment claim and upholding the lower court's treatment of Weaver and Guerrero's retaliation claims, the Seventh Circuit clarified the kinds of employee-directed behavior that would amount to an “objectively hostile work environment” and commented on those types of adverse employment actions that rise to the level of “retaliation.” Before addressing Weaver's specific accusations, the court reviewed the elements of a plaintiff's prima facie case in a hostile work environment claim. In order to survive summary judgment against his/her employer, the employee must show: “'1) he was subject to unwelcome harassment; 2) the harassment was based on his race; 3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and 4) there is a basis for employer liability.'” (quoting Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004)). The court explained that the third element of the employee's showing must be viewed in light of “'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.'” (quoting Russell v. Bd. of Trustees of Univ. of Ill. at Chicago, 243 F.3d 336, 343 (7th Cir. 2001)). Furthermore, in evaluating this element, the hostility of the employee's work environment must be assessed from both an objective and subjective point of view. Thus, while the Seventh Circuit saw Leenheer's racially derogatory comments directed towards Weaver's colleagues as “deplorable,” because this harassment was only experienced “second-hand” by Weaver, it could not to an “objectively hostile” work environment. The court was, however, careful to leave room for a situation in which a plaintiff could in fact demonstrate a hostile work environment through second-hand comments or where he/she was not the intended recipient of offensive statements. The Seventh Circuit thus clarified that Weaver's claim could not meet this evidentiary burden because “[s]he heard an offensive term directed at a third person once and only learned from others about other offensive comments directed at third persons.”

In addressing Weaver and Guerrero's claims, the Seventh Circuit began by stating that under Title VII, “'unlawful retaliation occurs when an employer takes an adverse employment action against an employee for opposing impermissible discrimination.'” (quoting Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 980-81 (7th Cir. 2004)). While the court was satisfied that Weaver and Guerrero had fulfilled the first element of the claim by both making informal complaints to the director of the Department and filing a formal discrimination charge with the Illinois Department of Human Rights, the court was not convinced that these employees had suffered an adverse employment action as a result of their reports. The Seventh Circuit construed the actions taken against Weaver, including the receipt of an anonymous cryptic letter and a threat directed towards her and Guerrero in a meeting, as “isolated incidents, none of which [was] serious enough to create an abusive environment that altered [her] employment.” Likewise, those alleged retaliatory actions taken against Guerrero, including a confrontational visit with her foster children and the previously mentioned threatening remark, were not extreme enough to amount to a change in the terms and conditions of her employment.

Impact of 'Second Hand Harassment' Does Not Amount to Objectively Hostile Work Environment

In affirming a district court's ruling rejecting hostile work environment and retaliation claims brought by three black and one Latina employee against Northeastern Illinois University (“Northeastern”), the Seventh Circuit has found that when harassment is “directed at someone other than the plaintiff, the 'impact of [such] second hand harassment is obviously not as great as the impact of harassment directed at the plaintiff.'” Smith v. Northeastern Illinois University, 2004 WL 2475104 (7th Cir. Nov. 4).

After experiencing years of racially motivated hostile, offensive and intimating behavior, both directly and indirectly, plaintiffs Randy Smith, Victoria Guerrero, Ann Weaver and Elbert Lee Reeves, all employees of Northeastern's Public Safety Department (the “Department”), filed suit against Northeastern and Gerald Leenheer and Kevin Connolly, police officers in the Department. Smith and Reeves, both African-American police officers in the Department, and Weaver, an African-American administrative aide and office manager for the Department, averred that defendants Connolly and Leenheer, both white, discriminated against them based on their race by creating and tolerating a hostile work environment in contravention of 42 U.S.C. ' 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et seq. Furthermore, Guerrero, who is Latina, joined these three plaintiffs in charging defendants with committing racially motivated retaliation against them in violation of ' 1981 and Title VII. All four plaintiffs also claimed intrusions on their First Amendment Rights and rights under 42 U.S.C. ' 1983 in that they were prevented from grieving defendants' unfair treatment and subjected to a hostile work environment or harassment when they exercised their First Amendment Rights. In response to defendants' motion for summary judgment, the district court dismissed all claims against defendant Connolly and all claims made by Weaver and Guerrero. With respect to Smith and Reeves' claims against defendants Northeastern and Leenheer, a jury found for the defendants. The district court then denied Smith and Reeves' motion for judgment as a matter of law or a new trial. On appeal, Weaver and Guerrero disputed the district court's grant of summary judgment on their hostile work environment and retaliation claims under Title VII, and Smith and Reeves asked for review of the district court's denial of their motion for a new trial. None of the plaintiffs pursued their claims against Connolly on appeal.

In confirming the district court's rejection of Weaver's hostile work environment claim and upholding the lower court's treatment of Weaver and Guerrero's retaliation claims, the Seventh Circuit clarified the kinds of employee-directed behavior that would amount to an “objectively hostile work environment” and commented on those types of adverse employment actions that rise to the level of “retaliation.” Before addressing Weaver's specific accusations, the court reviewed the elements of a plaintiff's prima facie case in a hostile work environment claim. In order to survive summary judgment against his/her employer, the employee must show: “'1) he was subject to unwelcome harassment; 2) the harassment was based on his race; 3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and 4) there is a basis for employer liability.'” (quoting Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004)). The court explained that the third element of the employee's showing must be viewed in light of “'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.'” (quoting Russell v. Bd. of Trustees of Univ. of Ill. at Chicago , 243 F.3d 336, 343 (7th Cir. 2001)). Furthermore, in evaluating this element, the hostility of the employee's work environment must be assessed from both an objective and subjective point of view. Thus, while the Seventh Circuit saw Leenheer's racially derogatory comments directed towards Weaver's colleagues as “deplorable,” because this harassment was only experienced “second-hand” by Weaver, it could not to an “objectively hostile” work environment. The court was, however, careful to leave room for a situation in which a plaintiff could in fact demonstrate a hostile work environment through second-hand comments or where he/she was not the intended recipient of offensive statements. The Seventh Circuit thus clarified that Weaver's claim could not meet this evidentiary burden because “[s]he heard an offensive term directed at a third person once and only learned from others about other offensive comments directed at third persons.”

In addressing Weaver and Guerrero's claims, the Seventh Circuit began by stating that under Title VII, “'unlawful retaliation occurs when an employer takes an adverse employment action against an employee for opposing impermissible discrimination.'” (quoting Wyninger v. New Venture Gear, Inc. , 361 F.3d 965, 980-81 (7th Cir. 2004)). While the court was satisfied that Weaver and Guerrero had fulfilled the first element of the claim by both making informal complaints to the director of the Department and filing a formal discrimination charge with the Illinois Department of Human Rights, the court was not convinced that these employees had suffered an adverse employment action as a result of their reports. The Seventh Circuit construed the actions taken against Weaver, including the receipt of an anonymous cryptic letter and a threat directed towards her and Guerrero in a meeting, as “isolated incidents, none of which [was] serious enough to create an abusive environment that altered [her] employment.” Likewise, those alleged retaliatory actions taken against Guerrero, including a confrontational visit with her foster children and the previously mentioned threatening remark, were not extreme enough to amount to a change in the terms and conditions of her employment.