Appeals panel: CPS worker doesn't need to prove work environment 'hellish' to press discrimination suit

By Scott Holland | Feb 22, 2019

Chicago Board of Education   Youtube screenshot

A federal appeals panel in Chicago has revived a man's racial discrimination lawsuit against the Chicago Public Schools, saying the man doesn't need to demonstrate his workplace was "hellish" to accuse his supervisor of discrimination.

On Feb. 20, a three-judge panel of the U.S. Seventh Circuit Court of Appeals reversed a portion of a federal judge's decision to end the lawsuit brought by plaintiff Fred Gates against the Chicago Board of Education.

Gates, a CPS building engineer since 2004, sued the Board of Education under Title VII of the Civil Rights Act, accusing a facilities engineer supervisor of addressing him with racial slurs and threatening to write up his “black ass.” 

U.S. District Judge Robert Dow Jr. granted the board summary judgment, saying Gates faced a high bar since “the workplace that is actionable is one that is hellish” — a quote from a 1997 Seventh Circuit opinion in Perry v. Harris Chernin, Inc. — and that the supervisor's comments weren’t severe or pervasive enough to prove a hostile work environment.

The appellate panel of Seventh Circuit Judges Daniel Manion, David Hamilton and Michael Scudder heard arguments Sept. 20. Hamilton wrote the opinion.

According to the panel, Dow “erred in two respects,” first by improperly relying on the “hellish” standard, and second by failing to focus on the difference in whether the source of alleged racial hostility was a colleague or a boss.

“While a ‘hellish’ workplace is surely actionable, plaintiffs’ evidence need not show a descent into the Inferno,” Hamilton wrote. “In 2007, we rejected the so‐called ‘hellish’ standard in Jackson v. County of Racine, and in other decisions after the district court’s decision in this case, such as Johnson v. Advocate Health and Hospitals Corp., we have again made the point.”

Hamilton said Gates described three separate incidents in 2013 and 2014 in which the supervisor either used a racial slur or threatened Gates while invoking his race. The fact he was a supervisor “is critical” in establishing a Civil Rights violation, the panel said, adding: “We have repeatedly treated a supervisor’s use of racially toxic language in the workplace as much more serious than a co‐worker’s. … This is particularly true when supervisors address these derogatory and humiliating remarks directly to the employees in question."

The panel said Dow relied on cases that differed from the Gates matter for four reasons: Similar conduct was alleged, but on the part of coworkers; supervisors were involved but the remarks were less offensive; the plaintiff employee was not the direct target of the words; or the evaluating standard was the rejected “hellish” threshold.

The justices supposed a jury “would likely have a difficult time concluding” the conduct Gates alleged wasn’t race-based harassment. Hamilton further said a reasonable jury could determine the remarks interfered with Gates’ job performance, “not least because it led him to take a leave from work to seek medical treatment.”

During testimony, Gates said he used a month of sick leave in December 2013 because he was having homicidal thoughts towards his supervisor and school principals, brought on by the harassment, and wanted medical attention.

The reversal of Dow’s ruling effectively grants Gates a trial on the hostile environment claim, but nothing else from his original complaint survives, including a complaint of age discrimination and Title VII retaliation. 

Gates is represented in the action by attorney Barry A. Gomberg, of Chicago. 

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Barry A. Gomberg Chicago Board of Education. Chicago Public Schools U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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