Shepherd v. Slater Steels Corp.

168 F.3d 998, 1999 U.S. App. LEXIS 2621, 75 Empl. Prac. Dec. (CCH) 45,824, 79 Fair Empl. Prac. Cas. (BNA) 311, 1999 WL 80735
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 19, 1999
DocketNo. 97-3265
StatusPublished
Cited by105 cases

This text of 168 F.3d 998 (Shepherd v. Slater Steels 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
Shepherd v. Slater Steels Corp., 168 F.3d 998, 1999 U.S. App. LEXIS 2621, 75 Empl. Prac. Dec. (CCH) 45,824, 79 Fair Empl. Prac. Cas. (BNA) 311, 1999 WL 80735 (7th Cir. 1999).

Opinions

ILANA DIAMOND ROVNER, Circuit Judge.

Lincoln Shepherd, Jr., filed this Title VII action against his former employer, Slater Steels Corporation, contending that the sexually-charged remarks and behavior of his coworker, Edward Jemison, had rendered his work environment hostile and that Slater had ultimately discharged him in retaliation for complaining of Jemison’s harassment. See 42 U.S.C. §§ 2000e-2(a), 2000e-3(a); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). The district court entered summary judgment in favor of Slater. We affirm in part, reverse in part, and remand for a trial on Shepherd’s hostile environment claim.

I.

As this case was decided below on summary judgment, we owe Shepherd a favorable recitation and construction of the facts. E.g., Frobose v. American Sav. & Loan Ass’n of Danville, 152 F.3d 602, 604 (7th Cir.1998). Consequently, although Jemison and other defense witnesses have denied many of Shepherd’s allegations, we have adopted Shepherd’s account of the facts whenever it conflicts with Slater’s version. The district court omitted from its own summary of the facts a number of allegations from Shepherd’s affidavit, which the court believed were inconsistent with Shepherd’s deposition. As we shall explain later, we believe that the court erred in excluding those averments; we have therefore included them in the following summation of events.

Slater assigned Shepherd to the position of BP Stocker in approximately 1994, after Shepherd had been with the company for two years or so. In this new position, Shepherd [1001]*1001worked alone with Jemison. Jemison was sixty-four years old when the alleged events at issue in this litigation took place.

According to Shepherd, Jemison began to harass him in or around November 1995.1 On a number of occasions, Jemison told Shepherd that he was “a handsome young man.” Shepherd Dep. 63. Shepherd at first ignored the compliment, “because old people usually tell you that.” Id. Events took a more ominous turn, however, when Jemison began, in view of Shepherd, to “sit there and play with himself’ (that is, to handle his penis) and “to make it go down his leg.” Shepherd Dep. 63. This was something that occurred “constantly” (Shepherd Dep. 66), “maybe four or five times a week” (id. at 63). Shepherd would typically ask Jemison what was wrong with him and walk away when he engaged in this behavior. But the harassment only escalated.

On one occasion in November or December, Shepherd was sitting in a swivel chair in the work area that he shared with Jemison. Jemison was nearby but at first not within Shepherd’s view. When Shepherd eventually turned in the chair to look at Jemison, he was confronted with the sight of Jemison’s exposed penis being wagged inches from his face. Shepherd Aff. ¶ 12; Shepherd Dep. 66. Shepherd fled to the bathroom. He subsequently complained of the incident to a coworker, Georgiana Brooks. Id.

On another occasion in December, Shepherd was lying face-down on a bench in his work area in an effort to alleviate a bout of stomach cramps. When Shepherd looked up, he saw Jemison “rubbing himself into an erection,” watching Shepherd. Shepherd Aff. ¶ 13. Jemison told Shepherd, “[I]f you [don’t] turn over, [I’m] liable to crawl up on top of [you] and fuck [you] in the ass.” Shepherd Dep. 66-67; Shepherd Aff. ¶ 13. Jemison remarked to Shepherd on yet another occasion that “[a] man can come if he’s fucked in the ass.” Id.

Shepherd had previously complained of Je-mison’s behavior only to his wife and coworkers (see Shepherd Dep. 66-68), but after the December incident on the bench, he voiced his concerns to his superiors. On or about January 4, 1996, Shepherd informed his department manager, Wally Martin, of the harassment, and Martin in turn reported it to Joe Jordan of the company’s Human Resources Department. Shepherd Dep. 48. Jordan summoned Shepherd to his office, where Shepherd described the various acts of harassment and how they affected him. Shepherd Aff. ¶ 3. Jordan indicated that he would speak to Jemison.

Two or three days after his meeting with Shepherd, Jordan confronted Jemison with Shepherd’s allegations. Judging from Shepherd’s account of what occurred next, the meeting did not have a salutary effect. According to Shepherd, when Jemison arrived at their work area following the meeting, he immediately dropped his pants. “He took his thumb and shoved it up in his rear-end and look[ed] at me and flicked it like he had something on it that would flick off, off his finger onto me.” Shepherd Dep. 69; Shepherd Aff. ¶ 4. Shepherd immediately telephoned Jordan to report what Jemison had done. Jordan asked Shepherd whether Je-mison had really done what Shepherd had just described, and Shepherd assured Jordan that he had. Shepherd Dep. 70; Shepherd Aff. ¶4. Jordan advised Shepherd not to pay any attention to the conduct and to try to carry on with his work. Shepherd Dep. 70; Shepherd Aff. ¶ 4.

From this point op, according to Shepherd, “Jemison’s harassment grew progressively worse and hostile.” Shepherd Aff. ¶ 5. “[I]t was pretty much every day.” Shepherd Dep. 70. On one occasion, Jemison got out of the machine he was operating, stood in front of Shepherd’s forklift, “dropped his pants to his ankles, and when he bent down to pick them up, he look[ed] at me and gave me this snicker.” Shepherd Dep. at 70-71. On an[1002]*1002other occasion, possibly in January 1996 (see Shepherd Dep. at 68), Shepherd explained to Jemison that he was moving slowly at work that day because of a fall he had taken while four-wheeling with a friend. Jemison asked whether he could take Shepherd and give him “a nice hot shower,” promising Shepherd that it would make him feel better. Shepherd Dep. 68-69; Shepherd Aff. ¶ 13. Shepherd’s response was “Hell no.” Shepherd Dep. 69. It appears that Jemison also continued to expose himself to Shepherd on a regular basis. Shepherd Aff. ¶ 15; Shepherd Dep. 66; see also Shepherd Aff. ¶ 17. In one variation of that routine, Jemison “cocked his leg like a dog would take a leak, you know, and he grabbed his thing and shook it at the same time.” Shepherd Dep. 94. “[Jemison] also used to brag that his dick was registered downtown. It’s on paper downtown because it’s gotten him in trouble once before. That he had the sex life of his twin brother that died.” Shepherd Dep. 74.2

The harassment also included a variety of conduct that was not sexual in nature. Shepherd testified, for example, that “[Jemison] would always put his thumb up his nose, like he got snot on it, and fling it at me.” Shepherd Dep. 70. Periodically, Jemison would attempt to drive his machine into Shepherd’s forklift. Shepherd Dep. 72.

Shepherd insists that he continued to complain about Jemison’s harassment, without effect, long after his initial meeting with Jordan. Martin and Jordan heard from Shepherd regularly. See Shepherd Aff. ¶ 10; Shepherd Dep. 57, 154-55, 158; see also Shepherd Dep. 33, 41, 94. “After January 16, 1996,” Shepherd recounts, “I called Jordan approximately once every two weeks until my termination.

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168 F.3d 998, 1999 U.S. App. LEXIS 2621, 75 Empl. Prac. Dec. (CCH) 45,824, 79 Fair Empl. Prac. Cas. (BNA) 311, 1999 WL 80735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepherd-v-slater-steels-corp-ca7-1999.