IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 96-1205 ARTHUR OATES, Plaintiff-Appellant, v. DISCOVERY ZONE, Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Illinois (Leinenweber, J.) BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case. . . . . . . . . . . . . . . . . . . . . . . 2 2. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . 2 3. The District Court's Oral Ruling. . . . . . . . . . . . . . . . 5 STATEMENT OF THE STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . 6 ARGUMENT: THE DISTRICT COURT MADE LEGAL ERRORS IN GRANTING SUMMARY JUDGMENT FOR DISCOVERY ZONE. . . . . . . . . . . . . . . . . . . . . . . 6 A. The District Court Erred In Dismissing The Claim Of Racial Harassment . . . . . . . . . . . . . . . . . . . . . . . . . 6 B. The District Court Erred In Granting Summary Judgment On The Claim Of Discriminatory Discharge. . . . . . . . . . . . . .14 C. The District Court Erred In Granting Summary Judgment On The Retaliation Claim. . . . . . . . . . . . . . . . . . . . . .20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 ATTACHMENTS CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Adler v. Madigan, 939 F.2d 476 (7th Cir. 1991). . . . . . . . . . . . . . . . . . . .14 Alexander v. Gerhardt Enter., Inc., 40 F.3d 187 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . .20 Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994). . . . . . . . . . . . . . . . . .14, 18 Anderson v. Local 201 Reinforcing Rodmen, 886 F. Supp. 94 (D.D.C. 1995) . . . . . . . . . . . . . . . . . . . 9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 6 Bailey v. Binyon, 583 F. Supp. 923 (N.D. Ill. 1984) . . . . . . . . . . . . . . . . .11 Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . 9 Bennett v. Corroon & Black Corp., 845 F.2d 104 (5th Cir. 1988), cert. denied, 489 U.S. 1020 (1989). . . . . . . . . . . . . . . . .11 Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326 (3d Cir. 1995). . . . . . . . . . . . . . . . . . . . .19 Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989). . . . . . . . . . . . . . . . . . . . 7 Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993). . . . . . . . . . . . . . . . . . . .15 Burton v. Crowell Pub. Co., 82 F.2d 154 (2d Cir. 1936). . . . . . . . . . . . . . . . . . . . .11 Chrysler Motors Corp. v. International Union, Allied Indus. Workers of Am., 959 F.2d 685 (7th Cir.), cert. denied, 506 U.S. 908 (1992) . . . . . . . . . . . . . . . . .13 Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio 1976) . . . . . . . . . . . . . . . . .12 Cox v. NFL, 889 F. Supp. 118 (S.D.N.Y. 1995). . . . . . . . . . . . . . . . . . 9 Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991) . . . . . . . . . . . . . . . . . 7, 10 Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . 6 Doe v. University of Mich., 721 F. Supp. 852 (E.D. Mich. 1989). . . . . . . . . . . . . . . 9, 13 EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . .15 Faragher v. City of Boca Raton, 76 F.3d 1155 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . .12 Harris v. Forklift Sys., Inc., 114 S. Ct. 367 (1993) . . . . . . . . . . . . . . . . . . . . . 7, 12 Harris v. School Annual Publishing Co., 466 So.2d 963 (Ala. 1985) . . . . . . . . . . . . . . . . . . . . . 9 Harris v. State, 209 Miss. 141, 46 So.2d 91 (1950) . . . . . . . . . . . . . . . . . 9 Jeffries v. Metro-Mark, Inc., 45 F.3d 258 (8th Cir.), cert. denied, 116 S. Ct. 102 (1995) . . . . . . . . . . . . . . . . 8 King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . .11 Knox v. First Nat. Bank of Chicago, 909 F. Supp. 569 (N.D. Ill. 1995) . . . . . . . . . . . . . . . . .15 Landon v. Northwest Airlines, Inc., 72 F.3d 620 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . .17 Legrand v. Trustees of Univ. of Ark. at Pine Bluff, 821 F.2d 478 (8th Cir. 1987), cert. denied, 485 U.S. 1034 (1988). . . . . . . . . . . . . . . . . . . . . . . .17 Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988). . . . . . . . . . . . . . . . . . . .19 McCarthy v. Kempfer Life Ins. Cos., 924 F.2d 683 (7th Cir. 1991). . . . . . . . . . . . . . . . . . . .15 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . 5, 14, 17 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). . . . . . . . . . . . . . . . . . . . . 7, 11, 19 Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976), cert. denied, 429 U.S. 1042 (1977). . . . . . . . . . . . . . . . . 9 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 6 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . .14 Randle v. LaSalle Telecommun., Inc., 876 F.2d 563 (7th Cir. 1989). . . . . . . . . . . . . . . . . . . .14 Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993) . . . . . . . . . . . . . . . . 7, 10, 11 Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972) . . . . . . . . . . . . . . . . . 7 Rush v. McDonald's Corp., 966 F.2d 1104 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . .17 Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . .18 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . . . . . .19 State v. Blanks, 479 N.W.2d 601 (Iowa Ct. App. 1992) . . . . . . . . . . . . . . . .11 Talley v. Bravo Pittino Restaurant, 61 F.3d 1241 (6th Cir. 1995). . . . . . . . . . . . . . . . . . . .15 Toletino v. Friedman, 46 F.3d 645 (7th Cir. 1995), cert. denied, 115 S. Ct. 2613 (1995). . . . . . . . . . . . . . . . 6 Troupe v. May Dep't Stores, 20 F.3d 734 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . 5, 18 Williams v. Williams Elecs., Inc., 856 F.2d 920 (7th Cir. 1988). . . . . . . . . . . . . . . . . . . .17 CONSTITUTIONAL AMENDMENT, STATUTES, AND OTHER LEGISLATIVE AUTHORITY U.S. CONST., Art. I § 2 cl. 3. . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. § 1604.11. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 29 C.F.R. § 1604.11(a)(3). . . . . . . . . . . . . . . . . . . . . . . . 7 29 C.F.R. § 1604.11(d) . . . . . . . . . . . . . . . . . . . . . . . . .13 OTHER AUTHORITY B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW (Five-Year Cum. Supp. 1989) . . . . . . . . . . . . . . . . . . . .12 Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar. 6, 1996 at C1 . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10 George Lawrence, An Oration on the Abolition of the Slave Trade (N.Y. 1813). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Herbert Alptheker, Vol. I A DOCUMENTARY HISTORY OF THE NEGRO PEOPLE IN THE UNITED STATES 58 (1951). . . . . . . . . . . . . . . . . . . . . . . . . 8 Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 13 Larry L. King, CONFESSIONS OF A WHITE RACIST (1969). . . . . . . . . .8, 9 Phyllis A. Katz, TOWARDS THE ELIMINATION OF RACISM (1976). . . . . . . .13 Thomas Kochman, BLACK AND WHITE STYLES IN CONFLICT (1981). . . . . . . .13 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration, and enforcement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and other federal statutes prohibiting employment discrimination. In this case, the district court granted summary judgment on plaintiff's claims of discriminatory discharge and retaliation in violation of Title VII, despite conflicting evidence on the reason for his discharge. The court also dismissed his racial harassment claim without addressing its merits in apparent disregard of the independent nature a racial harassment claim under Title VII. The court's dispositions raise an important issue regarding how derogatory and racially offensive slurs and conduct, beyond the use of the pejorative term "nigger," should be evaluated in the context of harassment and discharge claims. Because proper resolution of the claims in this case is important to effective enforcement of Title VII, the Commission offers its views. JURISDICTIONAL STATEMENT The Commission adopts the appellant's jurisdictional statement as accurate and complete. STATEMENT OF THE ISSUES 1. Whether there was sufficient evidence of racial harassment to survive summary judgment, where plaintiff, the only black employee in his office, complained to his supervisor that a picture of gorillas with his name written on it was racially offensive, and his supervisor laughed at his complaint, refused to take the picture down, and allowed it to remain on display for a week after his complaint. 2. Whether the termination of the company's only black employee four days after he complained about a racially offensive poster to his supervisor raised a genuine issue of fact as to his claims of discriminatory discharge and retaliation, where record evidence not only shows that his supervisor laughed at his complaint, refused to take the poster down, and participated in the termination decision, but also that plaintiff's performance may not have been the true reason for his discharge. STATEMENT OF THE CASE 1. Nature of the Case This is an appeal from the district court's order granting summary judgment for Discovery Zone on the discriminatory discharge and retaliation claims and dismissing the case. R. 53. 2. Statement of the Facts<1> Arthur Oates, a technical support representative, was responsible for providing telephonic support to Discovery Zone FunCenter stores regarding their computer systems. He was the only African-American employee at Discovery Zone's office in Rosemont, Illinois. His immediate supervisor was Bonnie Christenson. On April 8, 1994, Mark McDermott became Christenson's supervisor and assumed responsibility for overseeing the Rosemont office. The week of April 11, McDermott met with Christenson and she informed him that she had contemplated terminating Oates. Pl. Ex. C, McDermott Dep. at 21, 24, 32.<2> On Friday, April 15, 1994, Oates met with McDermott at the Chicago office. Pl. Ex. A, Oates Dep. at 84; Pl. Ex. C, McDermott Dep. at 25. During this session, McDermott praised his job performance. Pl. Ex. A, Oates Dep. at 85. McDermott testified that after their meeting he was "impressed" with Oates and considered him "intelligent, very cordial," with "a lot of potential." Pl. Ex. C, McDermott Dep. at 30. In early April, Christenson posted a picture of five gorillas on a bulletin board located in the main area of the office. Pl. Ex. A, Oates Dep. at 114. On April 18, Oates saw that his name had been written above one of the gorillas on the poster. Plaintiff immediately informed Christenson that, as an African American, he was offended by the analogy drawn between him and the gorilla, and that he considered the inscribed poster to be racially offensive. Pl. Ex. A, Oates Dep. at 115. Christenson laughed, id. at 223, and told Oates that he "was being oversensitive" and that the poster was "no big deal." Id. at 115. Oates testified that he felt "embarrassed, ridiculed, [and] humiliated" by Christenson. Id. at 223. On April 19, he sent a letter complaining about the incident via interoffice mail to Mary Mierkiewicz in Human Resources. Discovery Zone had no company policy or procedures for redressing harassment grievances during Oates' tenure. Pl. Ex. B, Christenson Dep. at 161; Pl. Ex. D, Mierkiewicz Dep. at 17; Pl. Ex. E, Dublin Dep. at 64. On April 21, Oates left a message on Christenson's voice mail informing her that he was sick. Discovery Zones' phones went unanswered and Christenson told McDermott it was because Oates did not come to work. Pl. Ex. B, Christenson Dep. at 48, 148; Pl Ex. C, McDermott Dep. at 38. The next day, Christenson fired Oates, telling him that his job had been eliminated. Pl. Ex. A, Oates Dep. at 59. At deposition, McDermott testified, however, that Oates was terminated because he failed to follow proper call-in procedures on April 21. Pl. Ex. C, McDermott Dep. at 38, 75-76, 83, 85. He also said that, because he had known Oates for only "a couple of weeks," he "had to agree with Bonnie [Christenson] that" Oates should be fired. Id. at 76; see also id. at 84 (indicating that both McDermott and Christenson made termination decision). At deposition, Christenson testified that while she fired Oates, it was not her decision. Pl. Ex. B, Christenson Dep. at 23. She claimed Oates was "very intelligent" and knew software and hardware very well. She stated that on "numerous occasions" she told McDermott she "did not want to fire" Oates, but had discussed Oates' performance with McDermott often. Id. at 30. Christenson also testified that the decision to terminate Oates had been made before Oates' absence on April 21,<3> and that the decision was not based on Oates' absence or failure to follow proper call-in procedures on that day. Id. at 67-68. On April 25, Mary Mierkiewicz received by interoffice mail Oates' letter complaining about the poster and Christenson's reaction. The gorilla poster was still hanging on that day. Pl. Ex. B, Christenson Dep. at 36, 157; Pl. Ex. D, Mierkiewicz Dep. at 38. Oates filed a timely action in the district court against Discovery Zone, alleging inter alia racial harassment and retaliatory discharge in violation of Title VII and discriminatory discharge in violation of 42 U.S.C. § 1981. R. 21, Second Amended Complaint. Discovery Zone moved for summary judgment on the discharge claims. R. 29. 3. District Court's Oral Ruling <4> Without addressing the merits of Oates' racial harassment claim, the district court concluded that Oates did not prove that his discharge was discriminatory or retaliatory. Citing to Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994), the court held that Oates did not proffer direct evidence of discriminatory intent because Christenson's reaction to the monkey poster on which Oates' name was written constituted "stray remarks" that would not prove Oates' discharge was discriminatory without reliance on inference or presumption. In addition, it ruled that the circumstantial evidence of suspicious timing and ambiguous comments was insufficient to create a genuine issue as to whether his supervisor's stray remarks, rather than his poor performance, led to his discharge. The court also held that plaintiff did not prove his discriminatory discharge claim under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because he did not establish a prima facie case by showing that he was performing satisfactorily or that similarly situated employees outside his protected class were treated more favorably than he. Finally, the court held that plaintiff did not make out a prima facie case of retaliation because he failed to prove Christenson participated in the termination decision. The court then decided that even if Oates had established a prima facie case, he did not offer any evidence showing that the proffered poor performance reason for the decision to terminate him was pretextual. Accordingly, the district court entered summary judgment for Discovery Zone and dismissed the case. R. 47. STATEMENT OF THE STANDARD OF REVIEW Review of a district court's decision granting summary judgment is de novo. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1453 (7th Cir. 1994). In determining whether the moving party has met its burden, all inferences are to be drawn in favor of the nonmoving party, Toletino v. Friedman, 46 F.3d 645, 649 (7th Cir.), cert. denied, 115 S. Ct. 2613 (1995), and any doubts are to be resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DISCOVERY ZONE In its motion for summary judgment, Discovery Zone asserted that even though the allegations regarding the monkey poster incident were in dispute, summary judgment was appropriate on the discriminatory and retaliatory discharge claims because Oates' termination was "made by a person wholly unaware of the alleged 'monkey picture' incident." R. 30, Def. Summ. J. Mem. at 2. The district court agreed, entered summary judgment on both claims, and terminated the case without specifically addressing the harassment claim. R. 47. The court erred in dismissing Oates' case because the record reveals material factual disputes on his claims of racial harassment, discriminatory discharge, and retaliatory discharge rendering summary judgment inappropriate. A. The District Court Erred In Dismissing the Racial Harassment Claim Racial harassment is an independent basis for liability under Title VII. Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989). Race-based conduct that affects the terms, conditions, and privileges of employment gives rise to a Title VII claim of racial harassment if it is so severe or pervasive that it creates a hostile or offensive working environment. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 673 (7th Cir. 1993); Daniels v. Essex Group Inc., 937 F.2d 1264, 1270 (7th Cir. 1991). Such harassment can include racial slurs, epithets and comments that, by themselves, violate Title VII if they unreasonably interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment. 29 C.F.R. § 1604.11(a)(3) (1995).<5> See also Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-67 (1989) (approving Commission guidelines, and noting that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult"); Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) ("discriminatory verbal intimidation, ridicule and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII"), cert. denied, 406 U.S. 957 (1972). To determine liability, the court must consider the totality of circumstances, Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 371 (1993), and employ both an objective and a subjective standard to assess the "'likely effect of a defendant's conduct upon a reasonable person's ability to perform his or her work and upon his or her well-being as well as the actual effect upon the particular plaintiff bringing the claim.'" Daniels, 937 F.2d at 1270 (quoting Brooms v. Regal Tube Co., 881 F.2d 412, 419 (7th Cir. 1989). In this case, there was sufficient evidence of racial harassment to raise a genuine issue of fact as to whether Oates was objectively subjected to a racially hostile working environment because the display of the monkey poster with his name on it was, by itself, actionable harassment, and that harassment was exacerbated by the supervisor's refusal to take corrective action. To begin with, the use of primate imagery, such as gorillas, monkeys, and apes, to refer to African- Americans is as offensive as calling a black person a "nigger." Historically, African-Americans have been considered, referred to and treated like subhumans or animals and, out of lack of appreciation of their culture, were regarded as uncivilized, and intellectually and culturally inferior.<6> In the perpetuation of this racial prejudice, African-Americans have been, and often still are,<7> referred to as "beasts," "gorillas,<8>" "apes," or "monkeys." See, e.g., Jeffries v. Metro-Mark, Inc., 45 F.3d 258, 260 (8th Cir.) (racial harassment suit in which multiple incidents included supervisor calling black plaintiff a "monkey"), cert. denied, 116 S. Ct. 102 (1995); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) (civil rights suit allowing testimony of police officer that he thought black people were "apes"); Morgan v. McDonough, 540 F.2d 527, 530 (1st Cir. 1976) (civil rights case challenging school's inaction towards racial incidents including racial chants by white students such as "2,4,6,8 assassinate the nigger apes" and their request to play music over school address system because "music soothes the savage beasts"), cert. denied, 429 U.S. 1042 (1977); Cox v. NFL, 889 F. Supp. 118, 119 (S.D.N.Y. 1995) (regarding crowds' verbal abuse using terms like "nigger" and "monkey" directed at black football player as based on race); Doe v. University of Mich., 721 F. Supp. 852, 854 (E.D. Mich. 1989) (race discrimination case protesting fliers placed around campus that referred to black persons as "saucer lips, porch monkeys, jigaboo" and display of KKK uniform in dorm window); Harris v. State, 209 Miss. 141, 147-48, 46 So.2d 91, 93 (1950) (describing African American defendant as a "big, black gorilla"); CONFESSIONS OF A WHITE RACIST at 68 (recounting incident where Texas Tech crowd directed racial exhortations like "kill that black ape" at a black football player on the opposing team). The clear purpose or effect of using racist animal slurs to refer to African Americans is to demean, offend, humiliate, or ridicule them. See, e.g., Anderson v. Local 201 Reinforcing Rodmen, 886 F. Supp. 94, 95 (D.D.C. 1995) (noting that black employee alleged he was "hurt" when his white foreman called him a "mule"); Harris v. School Annual Publishing Co., 466 So.2d 963 (Ala. 1985) (defamation case in which black school teacher regarded cartoon of monkey eating a banana beneath which appeared her name and the inscription "out munching" as a derogatory reference "'traditionally used to dehumanize, insult, belittle and degrade persons of [her] race'")<9>. Accordingly, a jury could fairly construe a poster inscribed with the name of the company's only black employee as a deliberate appeal to racial prejudices, invoking ridicule, inciting racial oppression, and generating racial hostility, and conclude therefore that the gorilla picture created conditions that would reasonably affect the employment atmosphere, performance and emotional well-being of a black employee. A factfinder could also decide that the facts in this case support a racial harassment claim because they are similar to facts in other cases in which this Court has found harassment. This Court has held that calling an African American employee a "nigger" sufficiently alters the conditions of that worker's employment to support a hostile working environment claim. See, e.g., Rodgers, 12 F.3d at 673 (finding credible plaintiff's testimony that racial remarks, including use of "nigger," significantly impaired his work performance, contributed to stress that compelled him to quit his job and harmed his self-esteem).<10> The adverse and hostile conditions created by the initial and continued display of the offensive poster inscribed with Oates' name are so similar to those created by the slur "nigger" that the poster incident could also be viewed as sufficiently severe or pervasive to constitute actionable harassment. Meritor, 477 U.S. at 67 ("discriminatory intimidation, ridicule, and insult, . . . is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment"); accord Burton v. Crowell Pub. Co., 82 F.2d 154, 156 (2d Cir. 1936) (defamation case in which mere association of plaintiff with gorilla lowered him in others' esteem); State v. Blanks, 479 N.W.2d 601, 602 (Iowa Ct. App. 1992) (acknowledging that prosecutorial reference to movie "Gorillas in the Mist" in case involving black male defendant charged with criminally assaulting his former white girlfriend has "racial overtones" and by itself is sufficiently demeaning as to constitute reversible error). Further, because the gorilla picture is as offensive as the slur "nigger," and "nigger" need only be said once to alter sufficiently the conditions of an African American employee's work environment to be actionable harassment, see, e.g., Rodgers, 12 F.3d at 675 (quoting Meritor, 477 U.S. at 67) ("perhaps no single act can more quickly 'alter the conditions of employment and create an abusive working environment,' than the use of an unambiguously racial epithet such as 'nigger'"); Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) ("use of the word 'nigger' automatically separates the person addressed from every non-black person; this is discrimination per se"), the single incident of the display of the offensive poster is sufficiently severe to support a hostile environment claim. See, e.g., King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir. 1990) (stating that even a "single act" of harassment can be sufficiently severe to "'alter the conditions of employment and create an abusive working environment"); Bennett v. Corroon & Black Corp., 845 F.2d 104, 105-06 (5th Cir. 1988) (holding that the one-time posting of a cartoon depicting plaintiff in an obscene fashion was sufficient to support a claim of hostile environment discrimination), cert. denied, 489 U.S. 1020 (1989); B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 90 (Five-Year Cum. Supp. 1989) ("Evidence of a single egregious racial slur [may be] sufficient to present a triable issue of fact[.]"). Next, Oates' complaint to his supervisor about the poster with his name on it and assertions of mental distress and humiliation caused by the poster's display are sufficient subjective evidence that the display of the monkey poster altered the conditions of Oates' employment and created an abusive environment. Harris, 114 S. Ct. at 370 (for workplace environment to be sufficiently hostile or abusive, victim must subjectively perceive conditions of employment as abusive); Faragher v. City of Boca Raton, 76 F.3d 1155, 1161 (11th Cir. 1996) (subjective prong of the harassment standard, i.e. the victim's perception, ensures that the conditions altered the work environment). Finally, even if the display of the inscribed picture by itself were not sufficiently severe or pervasive to support a hostile work environment claim, a factfinder could decide that the supervisor's conduct of ridiculing Oates and refusing to remove the poster further poisoned the environment and altered the terms of Oates' employment enough to support his harassment claim. See, e.g., Compston v. Borden, Inc., 424 F. Supp. 157, 160-61 (S.D. Ohio 1976) (holding that a supervisor "vested with managerial responsibilities" is liable under Title VII when he "embarks upon a course of conduct calculated to demean an employee" because "such activity will necessarily have the effect of altering the conditions of [the employee's] employment"). A jury could view Christenson's laughter in response to Oates' harassment complaint and her retort that Oates was being "oversensitive,"<11> as a demonstration of racial insensitivity that is often at the bottom of prejudices and bigotry that poison the workplace. A factfinder could also view her refusal to remove the poster as condoning an abusive and hostile environment, perpetuating a racial myth that African Americans are not entirely human or entitled to be treated with human dignity, and sending a message to his coworkers that they could continue to harass Oates with impunity. The factfinder could conclude then that Discovery Zone is liable for racial harassment because Christenson's knowledge of the harassment and failure to take remedial action can be imputed to it. See 29 C.F.R. 1604.11(d). See also Doe, 42 F.3d at 446 ("[k]nowledge of the agent is imputed to the corporate principal only if the agent receives the knowledge while acting within the scope of the agent's authority and when knowledge concerns a matter within the scope of that authority"); Chrysler Motors Corp. v. International Union, Allied Indus. Workers of Am., 959 F.2d 685, 687-88 (7th Cir.) ("[e]mployers must take all necessary steps to prevent sexual harassment in the workplace, such as expressing strong disapproval of the conduct and developing appropriate sanctions"), cert. denied, 506 U.S. 908 (1992). Since there is sufficient evidence of racial harassment from which a jury could determine that the terms and conditions of Oates' employment were adversely affected, and that Discovery Zone is liable for the harassment, the hostile environment claim should not have been dismissed by the district court, but rather should have gone to a jury. B. The District Court Erred in Granting Summary Judgment on the Discriminatory Discharge Claim In an employment discrimination action, a plaintiff may prove his case using direct or indirect methods of proof. Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). Under the direct method, plaintiff must show that the "decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision," Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring), or put differently, that there is a direct link between the discriminatory intent and the challenged employment action sufficient to prove the disputed fact "without reliance upon inference or presumption." Randle, 876 F.2d at 569. The indirect method, in contrast, permits the plaintiff to prove intentional discrimination by making out a prima facie case and by establishing that either the prohibited reason more likely than not motivated the adverse employment action or that the articulated reason is untrue. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). On a motion for summary judgment, if plaintiff successfully produces direct evidence of discriminatory intent or establishes a prima facie case and produces enough evidence of pretext from which the factfinder could infer the ultimate fact of intentional discrimination, the case should go to a jury. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994) (summary judgment is precluded by evidence of prima facie case and pretext); Adler v. Madigan, 939 F.2d 476, 479 (7th Cir. 1991) ("'[m]ixed motives' situations are ordinarily not grist for the summary judgment mill"). Here, the district court erred in deciding that Oates did not offer enough evidence from which a factfinder could infer the ultimate fact of intentional discrimination as to his discharge under either proof method. In reaching this conclusion, the court first incorrectly rejected Oates' argument that Christenson's offensive conduct is direct evidence of discriminatory intent under Price Waterhouse. See McCarthy v. Kempfer Life Ins. Cos., 924 F.2d 683, 687 (7th Cir. 1991) (racial epithets or discriminatory conduct directed at the plaintiff by an individual closely involved in the challenged decisional process are direct evidence of discriminatory animus); Knox v. First Nat. Bank of Chicago, 909 F. Supp. 569, 572 (N.D. Ill. 1995) ("plaintiff may present direct proof of discriminatory intent by introducing stray, stereotyped racial remarks if the remarks are made by a decisionmaker, are causally related to or have a nexus with the employment decision at issue, and are proximately related in time to the employment decision") (internal citations omitted)<12>. Oates' evidence of harassment and Christenson's offensive behavior, which was as severe as calling an African American a "nigger," are proof of discriminatory animus because the evidence is probative of Christenson's discriminatory attitude and the circumstances which may have influenced the decision to terminate Oates. Next, Oates' termination four days after the racial incident involving Christenson constitutes "suspicious timing" from which a factfinder could infer a causal connection between Christenson's animus and Oates' termination because there is evidence in the record from which a jury could conclude that Christenson participated in the termination decision. McDermott testified that, starting with his first meeting with her, Christenson had recommended that Oates be terminated, they arranged for Oates to be terminated on April 22, Christenson conducted the termination meeting, he "agreed" with Christenson to terminate Oates, and that together they decided to terminate him. Pl. Ex. C, McDermott Dep. at 25, 32, 73-76, 84-85. Christenson testified that Oates' termination was not her decision and she had never recommended Oates' termination to McDermott. Pl. Ex. B, Christenson Dep. at 23, 30. While this evidence clearly raises a factual dispute as to whether she actually participated in the termination decision, resolving all doubts in favor of the plaintiff, a jury could conclude that, since Christenson admittedly provided the information on which the termination was based and fired Oates, that she participated in the termination decision. Id. at 23, 45. Moreover, a jury could find it implausible that McDermott alone made the termination decision when he had only known Oates a couple of weeks and had formed a favorable impression of him after their initial meeting. In any event, this factual dispute defeats summary judgment and is enough to refute the district court's conclusion that Christenson's conduct was a "stray remark" made by a nondecisionmaker. Even if the evidence of Christenson's bias and role in the termination decision are insufficient under the Price Waterhouse direct evidence standard, Oates has produced enough evidence to survive summary judgment under the indirect proof scheme of McDonnell Douglas. The district court reached a contrary conclusion because, in evaluating Oates' discriminatory discharge claim, it erroneously took a rigid and mechanical approach in deciding that Oates did not establish a prima facie case of race discrimination. Specifically, the court improperly considered Discovery Zone's articulated reason for the discharge in deciding that Oates had not shown the second element of the prima facie case -- that he was performing his job satisfactorily. An employer's assessment of a plaintiff's work is more appropriately considered in connection with the pretext stage of proof in a Title VII case. Legrand v. Trustees of Univ. of Ark. at Pine Bluff, 821 F.2d 478, 481 n.4 (8th Cir. 1987), cert. denied, 485 U.S. 1034 (1988). The court also erroneously disregarded Oates' testimony that his performance was satisfactory, which is sufficient to meet his prima facie burden. Williams v. Williams Elecs., Inc., 856 F.2d 920, 923 n.6 (7th Cir. 1988) ("determination that individual is performing a job well enough to meet an employer's legitimate expectations, when made in the context of a prima facie case, may be based solely upon the employee's testimony concerning the quality of his work"). Further, the district court erred in requiring Oates, as the fourth element of the prima facie case, to prove that similarly situated employees outside his protected class were treated more favorably than he because that element can be satisfied when there is other evidence in the record from which discrimination could be inferred, as there was in this case. See Rush v. McDonald's Corp., 966 F.2d 1104, 1113 (7th Cir. 1992) ("plaintiff may establish a prima facie case of intentional discrimination by offering evidence adequate to raise an inference that he was discharged on the basis of race"); also see Landon v. Northwest Airlines Inc., 72 F.3d 620, 624 (8th Cir. 1995) (identifying fourth element of prima facie case as requiring a showing that "there is some evidence that would allow the inference of improper motivation"); accord McDonnell Douglas, 411 U.S. at 802 n.13 (noting that "the specification above of the prima facie proof [the fourth element of which was evidence that position denied plaintiff remained open and employer continued to seek applicants with similar qualifications] required from respondent is not necessarily applicable in every respect to differing factual situations"). In addition to the evidence establishing the prima facie case, the record contains "other bits and pieces" of evidence from which an inference of discriminatory intent might be drawn. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). For example, Oates proffered enough pretext evidence to raise a genuine issue as to whether his performance was the true reason for his discharge. Discovery Zone asserted that it terminated Oates because he failed to follow proper call-in procedures on April 21 to cover his absence from work. R. 30, Def. Summ. J. Mem. at 3. According to testimonial evidence in the record, however, the termination decision was made before April 21 and therefore was not based on Oates' absence or failure to follow proper call-in procedures on April 21. Pl. Ex. B, Christenson Dep. at 68-69; Pl. Ex. D, Mierkiewicz Dep. at 13; Pl. Ex. E, Dublin Dep. at 15. In addition, the record also contained evidence showing that the company gave inconsistent reasons to justify Oates' termination. Oates testified that he was told he was being discharged because his job had been eliminated. Pl. Ex. A, Oates Dep. at 59. McDermott testified at deposition that Oates was terminated because he failed to follow proper call-in procedures. Pl. Ex. C, McDermott Dep. at 38, 75-76, 83, 85. Christenson testified that it was not Oates' absence on April 21 or failure to call-in but rather his job performance on which his termination was based. Pl. Ex. B, Christenson Dep. at 68-69. Making all credibility assessments in favor of Oates, as the district court and reviewing court must on a motion for summary judgment, a jury could have inferred from the contradictory explanations that none of them were true and instead were offered to cover up a discriminatory motive. Anderson, 13 F.3d at 1123-24 (to survive summary judgment, plaintiff "must only 'produce evidence from which a rational factfinder could infer that the company lied' about its proffered reasons") (quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990)). Evidence in the record also established that the company did not have an anti-harassment policy or grievance procedure in place during Oates' employment with Discovery Zone. Pl. Ex. A, Oates Dep. at 161; Pl. Ex. D, Mierkiewicz Dep. at 17; Pl. Ex. E, Dublin Dep. at 64. The lack of a policy could be viewed as discouraging victims of harassment from exercising their right to be in a work environment free from discrimination, cf. Meritor, 477 U.S. at 73 (sexual harassment policy and grievance procedure should be "calculated to encourage victims of harassment to come forward"), and, in light of Christenson's failure to take remedial action regarding the monkey poster, be considered evidence of the "corporate culture" in which the decision to terminate Oates was made. Cf. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 333 (3d Cir. 1995) ("a supervisor's statement about the employer's employment practices or managerial policy is relevant to show the corporate culture in which a company makes its employment decisions and may be used to build a circumstantial case of discrimination"); Lipsett v. University of Puerto Rico, 864 F.2d 881, 907 n.27 (1st Cir. 1988) (noting that, even though defendant had policy against sex discrimination, "it had no official grievance procedure to facilitate the airing of complaints about such discrimination in an atmosphere of trust and confidence"). Inasmuch as Oates proffered enough evidence to establish a prima facie case of discrimination, that evidence combined with his evidence of pretext is sufficient to raise a genuine issue of fact as to whether race was the true reason for Oates' dismissal, and therefore defeat summary judgment. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749 (1993). Thus, we urge this Court to reverse the district court's granting of summary judgment on Oates' discriminatory discharge claim. C. The District Court Erred in Granting Summary Judgment on the Retaliation Claim The district court also erred in granting summary judgment on the retaliation claim because the same evidence of pretext and the supervisor's participation in the termination process proffered in support of the discriminatory discharge claim is sufficient to establish a prima facie case and to raise a genuine issue of fact as to whether Oates was terminated for complaining about the monkey poster or because his employer made "an 'honest assessment of inadequate performance.'" Opinion (quoting Alexander v. Gerhardt Enter., Inc., 40 F.3d 187, 197 (7th Cir. 1994)). Therefore, the retaliation claim should have been resolved by a jury. CONCLUSION The district court erred in granting summary judgment for Discovery Zone. The racial harassment claim raised a genuine issue of fact as to whether Oates was subjected to a racially hostile environment. Further, the record contained enough evidence of racial animus and pretext that, combined with evidence of the supervisor's participation in both the racial incident and the termination decision, would have permitted a rational factfinder to infer that Oates' termination four days after the monkey poster incident was either discriminatory or retaliatory. Therefore, we urge this Court to reverse the district court's order granting summary judgment for Discovery Zone and remand the case for jury consideration. Respectfully submitted, C. GREGORY STEWART General Counsel PAULA R. BRUNER, Attorney GWENDOLYN YOUNG REAMS EQUAL EMPLOYMENT OPPORTUNITY Associate General Counsel COMMISSION 1801 L Street, N.W. Rm. 7044 CAROLYN L. WHEELER Washington, D.C. 20507 Assistant General Counsel (202) 663-4731 CERTIFICATE OF SERVICE This is to certify that on April 4, 1996, two copies of the foregoing brief were mailed first class, postage prepaid, to the following counsel of record: H. Candace Gorman GORMAN & GORMAN 542 South Dearborn, Suite 1060 Chicago, Illinois 60605 John P. Morrison, Esq. Joanne L. Hyman, Esq. BELL, BOYD & LLOYD Three First National Plaza 70 West Madison Street, Suite 3200 Chicago, Illinois 60602 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 April 4, 1996 A T T A C H M E N T S TABLE OF CONTENTS 1. Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar. 6, 1996 2. Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259 (1993) A T T A C H M E N T 1 A T T A C H M E N T 2 ******************************* <1> The record contains disputed facts regarding, inter alia, Oates' work performance, attendance and adherence to "call-in" procedures when missing work, Discovery Zone's reason for Oates' discharge, whether the monkey poster incident occurred, whether Oates complained to Human Resources prior to his termination, and whether he wrote his own name on the gorilla poster. We present the facts here in the light most favorable to Oates, as summary judgment standards require. The facts are largely taken from the district court's oral ruling. Record references have been provided for facts not appearing in the court's opinion. <2> R. 38 is the record reference for all of plaintiff's exhibits which were in the appendix to his response to defendant's summary judgment motion. <3> Discovery Zone's human resources managers also testified that they were aware Oates was going to be terminated prior to Thursday, April 21, the day he was absent. Mierkiewicz said that she knew Oates was going to be terminated a "few days" before April 22 and that it was possibly on Tuesday, April 19 or Wednesday, April 20, that she learned of this matter. Pl. Ex. D, Mierkiewicz Dep. at 13. James Dublin said that he found out "possibly the week before" but that he was definitely involved in conversations regarding Oates' termination the week it occurred. Pl. Ex. E, Dublin Dep. at 15. <4> There are no page references to the transcript of the district court's oral ruling because it is not paginated. <5> Although the Commission's guidelines refer to discrimination based on sex, the Commission has made it clear that the liability principles governing sexual harassment and discrimination also apply to race. 29 C.F.R. § 1604.11 n.1 (1995). <6> The federal Constitution is illustrative of the subhuman status accorded African Americans during slavery because it quantified, for representation purposes, enslaved black people as three-fifths of a person. U.S. CONST., Art. I § 2 cl.3. See also Herbert Alptheker, Vol. I A DOCUMENTARY HISTORY OF THE NEGRO PEOPLE IN THE UNITED STATES 58 (1951) (quoting George Lawrence, An Oration on the Abolition of the Slave Trade (N.Y. 1813)) ("[t]here was a time whilst shrowded in ignorance, the African was estimated no higher than beasts of burden"). <7> See, e.g., Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar. 6, 1996, at C1 (noting that sports analyst Billy Packer's reference to a black Georgetown basketball player as "a tough monkey" was not only racist and offensive to "many African American viewers" but that Packer's response that his comment had " 'nothing to do with race'. . . reflects the arrogance and denial that are the cornerstones of racist thinking in America today") (Att. 1). <8> The association of black people with gorillas has its origins in Christian theology. As one commentator expressed: One of the favored topics of those unlettered priests was the vast amount of Scriptural authority accounting for the black man's lowly state and substandard conduct. Ham [one of Noah's sons who survived the Great Flood] had taken a wife from among a tribe marked by the curse of Cain -- some low-rated beast of the field she was, probably little better than a first cousin to the gorilla. From this unnatural union (so ran the prevailing theology) had been produced the most primitive form of the black race. Larry L. King, CONFESSIONS OF A WHITE RACIST at 18-19 (1969). <9> Accord Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259, 260 (1993) (first and sole African-American law school female professor's view that picture of a gorilla found in her school mail box at Case Western University communicated the "loud, unambiguous message" that she could "[c]laim no membership to the human race" because she was "not even a sub-species" but rather a "brute" "[a]nimal, not human;" a "time-worn message communicated to persons who are not white") (Att. 2); The Blinding Racism of His Comment, Wash. Post at C1 (noting that white sportscaster Billy Packer's reference to a black Georgetown basketball player as "a tough monkey" is "particularly egregious because of a centuries-old effort to dehumanize African Americans by linking them genetically with primates"). <10> See also Daniels, 937 F.2d at 1272-75 (holding that racial incidents involving hanging dummy, KKK and racial graffiti, and slurs using "Buckwheat" and "nigger" were sufficiently severe and pervasive to support racial harassment claim). <11> The term "oversensitive" in this context is consistent with a genre of code words often used to mask unconscious racism and perpetuate the racist's denial of, and arrogance about, the offensiveness of his or her conduct. See Phyllis A. Katz, TOWARDS THE ELIMINATION OF RACISM 27 (1976) (for a discussion of code words used to describe African Americans and their characteristics). Accord On Being a Gorilla in Your Midst, 28 Harv. C.R.-C.L. L. Rev. at 261-62 (when confronted with racial incidents, "the blackwoman scholar must appear neither hypersensitive nor paranoid. Her white male (and female) colleagues will quickly note the occurrence of facially similar events involving themselves to discredit what she knows to be the truth"); Thomas Kochman, BLACK AND WHITE STYLES IN CONFLICT 61 (1981) (because "in the past blacks were not even allowed to express and assert themselves to the extent that white cultural norms allow, let alone black ones[,] . . . as blacks begin to experience a greater sense of freedom to express and assert themselves publicly according to black norms, they find themselves vulnerable again to whites who consider such behavior excessively emotional and provocative and to which they respond with incomprehension and violence"). <12> See also Talley v. Bravo Pittino Restaurant, 61 F.3d 1241, 1248-49 (6th Cir. 1995) (racial comments by white managers constituted direct evidence that plaintiff's termination was racially motivated); Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993) (supervisor's routine use of "nigger" is direct evidence that racial animus motivated contested employee's discharge); EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir. 1990) (evidence of racial hostility by employer's general manager, one of persons responsible for denying plaintiff a promotion, was direct evidence of discrimination under Price Waterhouse).