Frank Sanders v. Village of Dixmoor, Illinois

178 F.3d 869, 1999 U.S. App. LEXIS 9043, 79 Fair Empl. Prac. Cas. (BNA) 1729, 1999 WL 301412

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 13, 1999
• Docket: 98-3728
• Status: Published

Opinions

MANION, Circuit Judge.

Frank Sanders sued the Village of Dixmoor, Illinois under Title VII of the Civil Rights Act, alleging racial discrimination due to discriminatory treatment and hostile environment. The district court granted Dixmoor summary judgment, concluding that Sanders failed to present sufficient evidence of a severe and pervasive hostile environment. The court did not address the discriminatory treatment issue, nor did the plaintiff move posttrial for the court to address that issue. Sanders appeals. We affirm.

Frank Sanders is a black male. He worked approximately four days per month for the Village of Dixmoor as a part-time police officer from 1991 until April of 1997. In 1997 the Village elected a new mayor. The Village Council replaced police chief Nicholas Graves with Joseph Faliea. Sanders, who. supported his good friend Graves, was not pleased with Graves’ termination. When Graves and Faliea met at the station to discuss the transition, Sanders was also present. He interrupted the discussion several times, demanding to know from Faliea the new scheduling arrangements and what Sanders’ particular role would be. Faliea responded a couple of times, saying that the time was not appropriate to discuss the matter with Sanders. When Sanders persisted, a heated exchange followed, culminating with Faliea exclaiming, “Nigger, you’re suspended.” Faliea then ordered Sanders out of the police station, but Sanders responded that he wasn’t going anywhere. Falica reiterated, “[ylou’re suspended for 90 days.” Sanders left and never returned. After exhausting his administrative remedies, he filed suit against the Village of Dixmoor under Title VII, alleging that “[t]he Chief of Police did not have any basis, other than plaintiffs race, to order plaintiffs suspension.”

Dixmoor moved for summary judgment, arguing that Sanders had failed to present sufficient evidence of a hostile work environment based on race. Dixmoor also presented evidence and argued that Sanders was fired because of his insubordination, not because of his race. In a (barely) three-page reply brief, Sanders cited two cases for the proposition that the use of the word “nigger” alters the terms and conditions of employment. The district court granted Dixmoor summary judgment, concluding that the only evidence Sanders had presented of a hostile environment was Falica’s statement “Nigger, you’re suspended,” and that this one instance of racial harassment was not sufficiently severe or pervasive to alter the conditions of employment and create an objectively hostile work environment.

Notably, the district court did not address the issue of whether Falica’s use of “nigger” during the verbal altercation with Sanders was direct evidence of race discrimination in the suspension. In fact the district court concluded that “[p]laintiff does not argue that he was suspended because of his race or that using the word ‘nigger’ amounted to constructive discharge.” More notably, Sanders did not at the time the court rendered its opinion, nor through a Rule 59 motion to reconsider, notify the court that it should address his argument concerning discriminatory treatment. Instead, Sanders now appeals the district court’s decision granting Dixm-oor summary judgment. However, he does not challenge the district court’s conclusion that he failed to present sufficient evidence of an objectively hostile environment.¹ Rather, Sanders contends that summary judgment was inappropriate because he presented sufficient evidence that he was suspended because of his race. But as noted, the district court did not address this issue.

While Sanders’ complaint was framed broadly enough to include a claim of a racially motivated suspension, at the summary judgment stage Sanders failed to alert the district court to this theory. “It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.” Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983). Here, Dixmoor moved for summary judgment arguing that Sanders had failed to present sufficient evidence of a hostile environment claim, and that his suspension was due to his insubordination and not his race. Sanders’ response failed to address the issue of the suspension and instead focused on the use of the word “nigger,” citing cases for the proposition that the word created a hostile environment in and of itself. Because Sanders did not notify the trial court of the theory he now advances — that he was suspended because of his race — -he has waived any such claim there and on appeal. We therefore Ap-FIRM the district court’s grant of summary judgment to Dixmoor.

1 . In an amicus brief the EEOC presents two arguments. Unlike Sanders’ brief, the EEOC claims the district court erred by holding that the circumstances surrounding Falica's use of the word "nigger” were not sufficient to create a racially hostile work environment. But since Sanders did not raise the issue on appeal, the Commission has no party to support. In its argument asserting race discrimination the Commission claims it was the defendant who did not raise with the district court the race-based suspension claim. But as explained above, Dixmoor did make this argument and the plaintiff cannot sit idly by while the court states that the plaintiff is not asserting race-based suspension or constructive discharge. The issue was waived below.