Prompt And Appropriate Action By Employer, Combined With Employee's Own Lack Of Cooperation, Shields Employer From Liability In Title VII Suit
PORTER v. ERIE FOODS INTERNATIONAL (August 7, 2009)
Tremeyne Porter, an African-American man, was an employee of a temporary placement agency. He was assigned to work the third shift at Erie Foods, a food production facility. He was the only African-American on the shift. After a few weeks without incident, things changed. One night, co-workers showed him a rope noose hanging on a piece of machinery. His supervisor ordered its removal, although she then proceeded to hang it on the bulletin board in her office, in plain view of the entire staff. She conducted an investigation as to its origin, unsuccessfully. The next night, a human resources representative held a meeting with the entire shaft. He advised the workers that harassment would not be tolerated. He later met privately with many of the shift workers as well as the shift supervisor. Porter was asked several times if he knew who was responsible for the news. He said he did not. In another incident, a co-worker showed Porter a noose. Porter felt threatened and did not disclose the identity of the culprit. Porter declined an offer to move to a different shift. Porter's supervisor continued to investigate, asking other shift supervisors if they had heard anything. Porter reported the incidents to the local police, identifying individuals, but asked that nothing be done. Porter left Erie Foods after about a month. He provided the company a statement with additional information about the incidents, including the identity of the worker who had handed him the noose. That worker was fired. Porter brought an action under Title VII, alleging hostile work environment and constructive discharge for engaging in a protected activity. The district court granted summary judgment to Erie Foods. Porter appeals.
In their opinion, Judges Posner, Ripple and Rovner (concurring) affirmed. With respect to the hostile work environment claim, the Court noted the elements of the claim: that Porter was the subject of harassment, that it was based on race, that it was so severe or pervasive so as to alter his working conditions, and that there is a basis for employer’s liability. The Court found the first three elements met. With respect to employer liability, however, the Court noted that an employer can avoid liability if it takes prompt and appropriate action that is likely to prevent a recurrence of the conduct. The Court concluded that Erie Foods had done just that -- the noose was taken down, there was an immediate inquiry, supervisors were informed, human resources met with the entire shift, the anti-harassment policy was reiterated, and individual meetings were held with many of the workers. The Court also noted that Porter’s own lack of cooperation hindered the investigation. Porter had a responsibility to provide his employer with additional information if he is to expect his employer to be able to respond effectively. On the record, the Court found Erie Foods not liable. On the constructive discharge claim, the Court explained that an employee must show working conditions “so intolerable” that any reasonable person would resign. Again, based on Erie Foods’ reasonable response to the initial incident and Porter’s failure to bring the additional incidents to the company’s attention, the Court concluded that Porter failed to establish a constructive discharge. Since there is no constructive discharge, Porter’s retaliation claim fails.
Judge Rovner concurred. She agreed with the majority that a reasonable juror could find that the company acted reasonably. She disagreed, however, with the majority’s treatment of the act of Porter’s supervisor displaying the noose, even if innocently, on her bulletin board for hours. Since Porter never complained of that conduct, however, he is not entitled to complain that the company failed to respond to it or correct it.
