A federal appeals panel has upheld a lower court’s order requiring a Chicago grocery store to pay more than $500,000 to an African American former butcher who claimed he suffered severe racial and sexual harassment at the hands of his Hispanic coworkers.
Rosebud Farmstand argued the federal court erred last December when it awarded a verdict to former store worker, Robert Smith.
Smith sued Rosebud after five years of working as a butcher for the grocery store on Chicago’s South Side. He claimed his male coworkers repeatedly groped him and used racial epithets. He claimed he complained to the management, to no avail. When he filed a complaint with the Equal Employment Opportunity Commission, he said the treatment worsened and his coworkers became menacing and threatening, even damaging his car while it was parked in a gated, employee-only lot.
A jury awarded Smith a verdict of more than $2.4 million, but a judge reduced the award to more than $500,000 after finding it excessive. Rosebud appealed the sexual harassment verdict, claiming the meat counter was a rough area with a culture of sexual horseplay, and Smith had failed to show he was discriminated against because of his gender.
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The store did not dispute that Smith was “severely and pervasively” harassed, but said the harassment did not rise to the level required under Title VII of the Civil Rights Act because it was not based on his gender. The store asserted all of the men who worked behind the meat counter were subjected to groping, simulated sex acts and sexually-charged language.
Judges on the U.S. Seventh Circuit Court of Appeals acknowledged that not all unwanted sexual contact constitutes discrimination under Title VII. But in their Aug. 2 decision, the judges noted Smith offered evidence that only men experienced such treatment at Rosebud; the approximately half-dozen women who worked at the store were not subjected to the same harassment. Rosebud tried to argue all of the employees behind the meat counter were men, but the judges found, because women worked in the store and interacted with the meat counter, the store was a mixed-sex workplace – one at which men were treated differently than women.
Rosebud also argued Smith’s retaliation claims should have failed, because there was no evidence his coworkers knew he had filed a report of racial discrimination with the EEOC.
“If they didn’t know about it, Rosebud says, they could not have retaliated against him for it,” Seventh Circuit Judge Amy C. Barrett wrote in the opinion.
Barrett, however, rejected this argument, noting it was never brought up during the trial. Neither of Rosebud’s motions for judgment as a rule of law made any reference to the retaliation claim, and it is now too late to challenge the sufficiency of the claim’s evidence, Barrett wrote.
In what Barrett called “a last-ditch effort to disrupt the verdict,” Rosebud asked for a new trial based on inflammatory statements made during Smith’s attorney’s closing argument that it said could have prejudiced the jury. In that closing argument, Smith’s attorney drew a correlation between anarchy in the Middle East caused by terrorism and the culture at Rosebud.
The appeals judges also refused to analyze this assertion because Rosebud did not raise the objection at trial. Rosebud’s counsel did object to the plaintiff’s closing argument, but not on the grounds that the statements were prejudicial. Besides, the statements did not appear to have had a prejudicial effect - several members of the jury grimaced and appeared to be put off by the analogy, Barrett noted.
The appellate panel affirmed the verdict and ordered Rosebud to pay the damages awarded. Judges William J. Bauer and Amy J. St. Eve concurred in the opinion.
Smith is represented in the case by attorney Joseph Longo, of Mt. Prospect.
Rosebud is represented by attorneys Joshua D. Holleb and Davi Lynn Hirsch, of the firm of Klein, Paull, Holleb & Jacobs Ltd., of Highland Park, and William D. Dallas, Peter G. Frezados and Steven M. Dallas, of the firm of Regas, Frezados & Dallas LLP, of Chicago.