Episcopo v. General Motors Corp.

128 F. App'x 519
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 7, 2005
DocketNo. 04-2079
StatusPublished
Cited by4 cases

This text of 128 F. App'x 519 (Episcopo v. General Motors Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Episcopo v. General Motors Corp., 128 F. App'x 519 (7th Cir. 2005).

Opinion

ORDER

Nick Episcopo, a naturalized citizen of the United States who was born in Italy, worked for General Motors (“GM”) for more than 30 years. He sued GM claiming, as relevant to this appeal, that for much of that time he endured a hostile work environment because of his national origin. This claim and several others in Mr. Episcopo’s complaint were resolved against him at summary judgment. He now appeals on the sole basis that the district court erred in rejecting his claim of a hostile work environment. For the reasons set forth in this order, we affirm the judgment of the district court.

I

BACKGROUND

We recite the facts in the light most favorable to Mr. Episcopo, the non-moving party.

Mr. Episcopo was hired as a machinist in GM’s Electro-Motive Division in 1969 and worked in similar positions in the same facility throughout his career. Although, in his view, the workplace was always somewhat hostile, this suit focuses on the period from 1995 to 2001.

Mr. Episcopo recounts an incident that occurred in 1995, shortly after the bombing of the Alfred E. Murrah Building in Oklahoma City. On that occasion, he heard fellow employees in the presence of a supervisor referring to immigrants as “_Displaced Persons.” Mr. Episco-po could not identify the speaker, and the conversation was not addressed to him; nor did it have anything to do with him as far as he knew, but it made his “blood start boiling.” He confronted his coworkers and initiated a shouting match.

The supervisor who was present at the confrontation, Gerry Hanley, was not Mr. Episcopo’s boss at the time. From then on, however, he sought to make things difficult for Mr. Episcopo. Hanley monitored how long Mr. Episcopo spent in the washroom, and he reported the most minor of Mr. Episcopo’s deviations from company rules and norms. However, Hanley seems to have largely avoided giving racial or ethnic offense to anyone. Only twice in the record is an ethnically objectionable comment even attributed to him. The first instance was when he admitted at his deposition that he might at some time have used the phrase “displaced persons”; the other was when he protested on learning [521]*521of Mr. Episcopo’s allegations before the EEOC that he had no idea whether Mr. Episcopo was “a pizza maker or a pizza deliverer.”

Mr. Episcopo also suggests that Hanley encouraged another hourly employee, Greg Monczynski, to harass and intimidate him. On one occasion Monczynski asked Mr. Episcopo whether Columbus Day was an Italian holiday. There also was name calling. Mr. Episcopo estimated that Monc-zynski called him “wop” or “dago” 30 to 50 times between 1995 and Hanley’s retirement in 2001. All of Mr. Episcopo’s coworkers who provided evidence admitted, however, that ethnically demeaning expressions were commonly a part of the workplace banter. One employee, who was of Italian descent although born in the United States, testified at his deposition that he had been called “wop” and “dago,” but was not offended “because most of the time they’re joking around.” The same employee recalled that Mr. Episcopo himself used the terms “wop,” “dago,” and “polak.”

Monczynski’s ethnic slurs account for only a small portion of a broad pattern of claimed harassment. According to Mr. Episcopo, Monczynski also tried to hit, or threatened to hit, Mr. Episcopo’s car with his own car; scattered sunflower seeds over Mr. Episcopo’s work area; stared at Mr. Episcopo; raised his eyeglasses with his middle finger; laid out his glove with the middle finger pointed toward Mr. Ep-iscopo; drew a swastika on the paper-towel dispenser that Monczynski kept on his tool box; and kicked Mr. Episcopo’s empty chair away from the aisle. In fact, Mr. Episcopo and Monczynski regularly complained about each other to Hanley and to their union representative, though neither filed a formal complaint.

In 1997, Mr. Episcopo fractured his wrist on the job. As a result, he required surgery on his left rotator cuff in April 1999 and on his right rotator cuff in January 2000. Mr. Episcopo testified at his deposition that these operations left him unable to lift more than ten pounds or to lift anything above the level of his chest. This perceived disability, by his estimate, kept him from performing 30 percent of the tasks in his job description. He wanted GM’s plant physician permanently to release him from these tasks, but the physician refused.

By coincidence, Hanley became Mr. Ep-iscopo’s direct supervisor in March 2000, around the time Mr. Episcopo returned to work after his second surgery. Mr. Epis-copo accused Hanley of influencing the physician’s decision. However, for a short period, Mr. Episcopo did receive temporary medical restrictions from the plant physician, which, in Mr. Episcopo’s view, Hanley refused to respect. At first, Mr. Episcopo was placed on a ten-pound restriction, but Hanley told him he could not find work for him. When Mr. Episcopo returned to the plant physician and obtained a 30-pound restriction, Hanley did find jobs for him, but he began “slowly pushing jobs over the 30 pounds.” Mr. Episcopo says that Hanley gave him jobs that exceeded his weight restrictions “dozens of times.”

In November 2000, Mr. Episcopo filed a charge of discrimination with the EEOC. He alleged that he was the victim of a hostile work environment and disparate treatment because of his national origin, and that he also suffered discrimination because of his on-the-job injury. Then, in January 2001, he filed a grievance using GM’s internal procedures in which he claimed that the medical department was wrongfully withholding medical restrictions. He said nothing in this grievance about harassment based on his national origin. GM investigated and concluded [522]*522that Mr. Episcopo was fully able to perform his job without restrictions. However, Mr. Episcopo went on medical leave in September 2002 and then two months later filed this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101-12213; and 42 U.S.C. § 1981. He voluntarily retired from GM in January 2003 when his eligibility for medical pay expired.

GM moved for summary judgment. It contended that the “racial” comments made by Monezynski and Hanley were neither severe nor pervasive enough to establish a hostile work environment, and that most of the purported harassment had nothing to do with Mr. Episcopo’s national origin. The company also claimed entitlement to an affirmative defense to liability because it had procedures in place for reporting harassment that Mr. Episcopo had failed to use. In response to GM’s motion, Mr. Episcopo protested that GM had unduly narrowed his claim of a hostile work environment, which Mr. Episcopo then defined as embracing virtually every unfavorable event within the limitations period, including Hanley’s assignment of jobs allegedly “designed to aggravate” Mr. Episcopo’s shoulder condition. With respect to the affirmative defense, Mr. Epis-copo argued that GM was chargeable with knowledge of Monczynkski’s conduct, that the failure of the anti-harassment policy to prevent or correct Hanley’s claimed harassment was evidence that the policy had not been enforced and that it was disingenuous for GM to assert that Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
128 F. App'x 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/episcopo-v-general-motors-corp-ca7-2005.