|Jottings By An Employer's Lawyer|
Tuesday, August 02, 2005
Not All Bad (Even Real Bad) That Happens at Work Is Discrimination
If Shafer is describing events accurately, he has a solid claim against Dill under state tort law for both assault and battery. What he lacks, however, is a claim against Kal Kan for sex discrimination. The district court has protected Shafer’s tort claim by dismissing it without prejudice. The judgment dismissing the Title VII claim on the merits is affirmed.Shafer v. Kan Kan Foods, Inc.(7th Cir. 8/1/05) [pdf].
The incidents which led to those words were graphically described:
Dill, who earlier had remarked that Shafer has a “cheerleader ass” that “would look real nice on my dick,” forced Shafer’s face down to his crotch (while clothed), moving his groin to give the impression that Shafer was performing fellatio. A few weeks later, in the same company, Dill grabbed Shafer’s hand and moved it to his crotchAlthough those might well be a violation of state tort law, Shafer could not show that they were done by the employer, as Dill, the tormentor was a co-worker not an employee; nor that the incidents were severe or pervasive as required to establish sexual harassment. In the Court's view, Shafer had not established that Dill's conduct "reflected more than personal animosity or juvenile behavior."
Shafer's retaliation claim had also gone by the wayside as he was unable to show that the person to whom he complained was the appropriate person or that she had told those who later terminated him. Without knowledge of his complaint, it could not have been the cause of his termination. Or as Judge Easterbrook puts it in his inimitable fashion, "post hoc ergo propter hoc is not a good way to establish causation." ("after the fact, therefore because of the fact" in case your latin is a little rusty). But not content to let it go at that, Judge Easterbrook riffing like a jazz musician goes on to nail the point:
Shafer insists that, because he was a good worker, and the others involved were not cashiered, his complaints must have caused his discharge. That approach would turn the federal judiciary into a body of employment arbitrators asking whether personnel decisions are supported by “just cause.” The lack of “just cause” would establish that forbidden discrimination or retaliation was the real cause. That’s not what federal law says. The burden of persuasion is the plaintiff’s.It may not be Miles Davis, but it's pretty damn good, and certainly music to an employer's lawyer's ears.