In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4012
DENNIS WALKER,
Plaintiff-Appellant,
v.
MUELLER INDUSTRIES, INC.,
MUELLER STREAMLINE CO., and
DEBORAH JONES,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 6155—David H. Coar, Judge.
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ARGUED JANUARY 7, 2005—DECIDED MAY 11, 2005
____________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Dennis Walker sued his employer,
Mueller Streamline Company, a subsidiary of Mueller
Industries, Inc. (collectively, “Mueller”) and his supervisor,
Deborah Jones, pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII”), and
42 U.S.C. § 1981. Walker alleged that he was forced to work
in a racially hostile work environment and that Jones and
Mueller retaliated against him for complaining about inci-
2 No. 03-4012
dents of discrimination against his co-workers. The district
court granted summary judgment in favor of the defendants.
Walker v. Mueller Indus., Inc., No. 02 C 6615, 2003
WL 22410081 (N.D. Ill. Oct. 21, 2003). We affirm.
I.
Walker has been employed as a warehouse worker at
Mueller Streamline Company’s distribution center in Addison,
Illinois since 1993. The workforce at the Addison facility is
unionized, and beginning in or about May 2000, Walker
served as the union steward. In that role, and beginning in
April 2001, Walker complained to the warehouse manager,
Deborah Jones, that African-American employees were subject
to racial discrimination at the warehouse. The complained-
of conduct took various forms, including but not limited to
the following instances of workplace harassment: co-workers
singing racially derogatory songs, references to African
Americans as “monkeys,” and graffiti including “N-I-G-A”
written throughout the warehouse. According to Walker,
after he began to alert management to the discrimination
his co-workers were experiencing, the company began to
retaliate against him for the complaints, excluding him
from more desirable work assignments and a supervisory
position and subjecting him to workplace harassment.
In May 2001, Walker filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”)
asserting that Mueller had discriminated against him on
the basis of his race (Walker is white) by failing to provide
a workplace free of racial discrimination and also by retal-
iating against him for raising complaints of racial discrimi-
nation on behalf of his co-workers. In April 2002, following
an investigation into Walker’s charge, the EEOC determined
that there was “reasonable cause to believe that [Mueller]
maintains a hostile work environment on the basis of race,
Black, in violation of Title VII.” The EEOC subsequently
No. 03-4012 3
issued Walker a notice of his right to sue, and Walker
timely filed suit against Mueller and Jones in the district
court, again asserting that he was the victim of both race
discrimination and retaliation.
The district court ultimately granted summary judgment
in favor of the defendants. As to Walker’s claim of race dis-
crimination, the court pointed out that Walker had aban-
doned any claim that Mueller had discriminated against him
based on his own race. Walker v. Mueller Indus., Inc., supra,
2003 WL 22410081, at *3. Instead, Walker was asserting a
derivative claim of discrimination based on the hostile en-
vironment allegedly perpetrated against African-American
workers at the Addison facility. That claim, the court con-
cluded, was foreclosed by this court’s opinion in Bermudez
v. TRC Holdings, Inc., 138 F.3d 1176, 1180-81 (7th Cir. 1998).
Walker, 2003 WL 22410081, at *3. As for the retaliation
claim, the court determined that none of the purportedly
retaliatory conduct cited by Walker amounted to an adverse
employment action, as the cases generally require in order
to establish actionable retaliation. Id., at *4-*5.
II.
Our review of the district court’s summary judgment de-
cision is de novo. E.g., Mannie v. Potter, 394 F.3d 977, 982
(7th Cir. 2005). As we noted at the outset, Walker sued the
defendants under both Title VII and section 1981. We employ
similar standards in evaluating his claims under these two
statutes. E.g., Alexander v. Wisconsin Dep’t of Health &
Family Servs., 263 F.3d 673, 681-82 (7th Cir. 2001). We note,
however, that only Mueller (not Jones) can be held liable
under Title VII. E.g., EEOC v. AIC Security Investigations,
Ltd., 55 F.3d 1276, 1281-82 (7th Cir. 1995).
4 No. 03-4012
A. Racial Discrimination
As we begin our review, we reiterate that Walker is not
complaining that Mueller subjected him to any racial dis-
crimination stemming from his own race. Although Walker
suggested that he was asserting such a claim in his EEOC
charge, there was no mention of any such claim in the mem-
orandum that he filed in opposition to the defendants’
summary judgment motion below. Indeed, as the district
court pointed out, Walker during his deposition testimony
expressly disavowed any intent to assert such a claim.
Walker, 2003 WL 22410081, at *3 (citing Walker Dep. at
127-28). Walker has therefore forfeited, if not waived, any
claim based on his own race. See United States v. Olano,
507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993) (“Whereas
forfeiture is the failure to make the timely assertion of a
right, waiver is the ‘intentional relinquishment of a known
right.’ ”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58
S. Ct. 1019, 1023 (1938)).
Rather, in the district court, as in his EEOC charge,
Walker contended that he was subjected to a hostile envir-
onment due to the racially-animated harassment that was
directed at his African-American co-workers. But Walker
himself is white, and as the district court recognized, this
court’s opinion in Bermudez, 138 F.3d at 1180-81, all but
closes the door on the notion that an employee who observes
workplace hostility but is not a member of the class of
persons at whom the harassment was directed may bring a
derivative claim for the harassment. We say “all but”
because, after noting an even split among the judges of the
Fourth Circuit on this question in Childress v. City of
Richmond, Va., 134 F.3d 1205 (4th Cir. 1998) (en banc), we
concluded our discussion in Bermudez with the qualification
that “[w]e need not come to rest on the subject today . . . .”
138 F.3d at 1181. Instead, we proceeded to reject the hostile
environment claim for lack of proof that the harassment
“poisoned the working atmosphere” for the plaintiff. Id.
No. 03-4012 5
We dispose of Walker’s claim on the same basis. We may
assume that the conduct of which Walker complains was
severe and/or pervasive enough to render the distribution
center hostile for Mueller’s African-American employees.
See, e.g., Smith v. Northeastern Ill. Univ., 388 F.3d 559, 566
(7th Cir. 2004) (discussing the severe and/or pervasive
requirement). As a bystander, Walker was disturbed by the
harassment, as any enlightened employee would have been.
But Walker has made no attempt to establish that the
conduct was so offensive to him as a third party as to
render the workplace hostile not only for him but for any
reasonable employee who likewise was a bystander rather
than a target of the harassment. See Bermudez, 138 F.3d at
1181; see also Smith, 388 F.3d at 567. The record thus lends
insufficient support to Walker’s derivative harassment claim.
Walker reminds us that the EEOC in its reasonable cause
determination found Walker to be among the class of
employees aggrieved by the hostile environment created by
the racist conduct at the warehouse (see R. 1-1 Ex. B at 1),
and he suggests that we should defer to that determination.
But Walker never made that argument in opposing the
defendants’ summary judgment below and has therefore
forfeited the argument. See, e.g., Ocean Atlantic Dev. Corp.
v. Aurora Christian Schools, Inc., 322 F.3d 983, 1005 (7th
Cir. 2003) (arguments not raised in the district court are
forfeited); see also Tuohey v. Chicago Park Dist., 148 F.3d
735, 739 (7th Cir. 1998) (“an EEOC ‘reasonable cause’ find-
ing . . . would not have been dispositive of the subsequent
litigation”); EEOC v. Harvey L. Walner & Assocs., 91 F.3d
963, 968 n.3 (7th Cir. 1996) (“Th[e] determination of reason-
able cause is only an administrative prerequisite to a court
action and has no legally binding significance in subsequent
litigation.”).
In his appellate briefs, Walker also floats the possibility
that he suffered discrimination because of his association
with Mueller’s African-American employees. But this is
6 No. 03-4012
another argument that he failed to make in the district
court: there was no mention of this theory in his summary
judgment memorandum below. He has therefore forfeited
this theory of discrimination. E.g., Ocean Atlantic Dev.
Corp., 322 F.3d at 1005.
Walker did assert below that Mueller and Jones took
punitive measures against him because he pursued claims
of discrimination on behalf of his African-American col-
leagues. But this is properly understood as a claim of retal-
iation rather than direct racial discrimination. We address
Walker’s retaliation claim next.
B. Retaliation
Walker asserts that Mueller, through Jones, retaliated
against him in a variety of ways after he began to speak out
against the racially discriminatory environment at the
warehouse. He asserts that he was assigned exclusively to
handle the job of “order-picking” at the warehouse, which he
characterizes as the most physically demanding and
undesirable assignment for warehouse workers. He also
claims that he was rejected for the position of lead person,
in which he would have acted in Jones’ stead when she was
absent from the warehouse. And he contends he was dis-
ciplined on trumped-up charges that his work performance
and attendance were poor and that he violated company
policy by bringing a personal notebook into the warehouse.
The district court determined that none of these actions
amounted to the kind of adverse employment action that
our cases say is needed to establish actionable retaliation.
See, e.g., Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1004
(7th Cir. 2005).
The district court noted that the order-picking assignment
to which Walker objected was one of a number of genuine
tasks that any warehouse worker could be directed to
perform; assigning Walker to that task therefore could not
No. 03-4012 7
be described as a demotion or other type of adverse employ-
ment action. Walker, 2003 WL 22410081, at *4. Even if we
assume that a punitive assignment to the least desirable of
legitimate tasks could support a retaliation claim, the
timing of Walker’s assignment is inconsistent with the notion
that it was retaliatory. As the defendants pointed out below,
Jones reassigned Walker from auditing to order-picking
soon after she arrived at the warehouse in 1999, long before
he began to complain of race discrimination. See R. 29 at 4;
R. 24 ¶ 33. At the time of the reassignment, Walker and
Jones still were on good terms, by Walker’s own account.
See R. 23 at 3 (citing Walker Dep. 192-93). Moreover, the
record reveals that Walker had been performing the order-
picking task for eight of the ten years he had worked at
Mueller. R. 24 ¶ 25. The record thus does not support the
inference that Jones reassigned Walker for an illegitimate
purpose.
With respect to the warnings, even if we assume that
Jones issued them for reasons unrelated to Walker’s actual
performance, Walker has not shown that they were any-
thing more than warnings. As the district court recognized,
warnings in and of themselves normally do not suffice as
proof of retaliation. See, e.g., Kersting v. Wal-Mart Stores,
Inc., 250 F.3d 1109, 1118-19 (7th Cir. 2001). Walker pro-
duced no evidence that the warnings had any concrete effect
on his position, pay and benefits, or his prospects at Mueller.
Cf. Ezell v. Potter, 400 F.3d 1041, 1049 (7th Cir. 2005)
(whereas letter of warning did not constitute adverse employ-
ment action, letter indicating intent to terminate plaintiff
did constitute such an action, notwithstanding its later
withdrawal).
As for the lead person position, the district court reasoned
that Jones’ decision not to put Walker in that position did
not amount to an adverse employment action because the
position was not a supervisory position, as Walker had
alleged, and earned its holder no greater pay so as to dis-
8 No. 03-4012
tinguish it from the post of warehouse employee that Walker
held. 2003 WL 22410081, at *5; see, e.g., O’Neal v. City of
Chicago, 392 F.3d 909, 913 (7th Cir. 2004) (lateral transfer
to essentially equivalent position normally does not suffice
as adverse employment action). Walker insists that the rec-
ord reveals factual disputes as to the nature of the lead
person position and its compensation, but even if we give
him the benefit of the doubt on these points, the defendants
are still entitled to summary judgment. Walker has not
attempted to establish retaliation directly, with proof of a
causal link between his protected activity and the defendants’
purportedly punitive conduct that does not depend on infer-
ences deriving from circumstantial evidence. See Stone v.
City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th
Cir. 2002). He is instead relying on the indirect method. See
id. Within the burden-shifting framework governing that
method of proof, Walker ultimately must offer evidence that
any legitimate explanation the defendants identify for Jones’
decision is pretextual. Id. Jones articulated a number of
legitimate reasons for her decision to select someone other
than Walker as the lead person, and a review of the record
reveals that Walker has failed to rebut at least one of them.
See, e.g., Hudson v. Chicago Transit Auth., 375 F.3d 552, 561
(7th Cir. 2004) (where employer articulates more than one
noninvidious reason for challenged action, plaintiff must
offer evidence that each reason is pretextual). Jones said
that the lead person needed to be someone who had the
trust and respect of his co-workers, a requirement that
strikes us as plausible given that the lead person acted in
Jones’ stead when she was absent from the warehouse.
Jones thought that Walker did not meet that requirement,
and she identified several individuals that she believed did
not trust and respect Walker. R. 24 ¶ 68; R. 30 ¶ 121.
Walker has produced no evidence suggesting that Jones did
not genuinely rely on this noninvidious rationale in exclud-
ing Walker from the lead person position. Instead, Walker
has focused largely on the shortcomings of the people that
No. 03-4012 9
Jones did choose for that position, emphasizing the respects
in which he was better suited than they were to serve as lead
person. But at most, this line of attack suggests that Jones’
assessment of their relative capabilities was erroneous; it does
not suggest that her stated rationale was a cover for retalia-
tion. See Hudson, 375 F.3d at 561 (“Pretext is more than a
mistake on the part of the employer; it is a phony excuse.”).
Finally, Walker asserts that he was subjected to a hostile
working environment in retaliation for his complaints. See,
e.g., Stutler v. Illinois Dep’t of Corrections, 263 F.3d 698, 703
(7th Cir. 2001) (hostile environment can be retaliatory).
Walker identifies two principal components to the har-
assment. First, he asserts that Jones began following him
around the warehouse to spy on him and also to whistle
tunes like “This Old Man” and “Three Blind Mice” in his
presence, which Walker construed as demeaning. Second, he
asserts that some of his co-workers called him derogatory
names (for example, one referred to him as an “f—ing
Polack”) and threatened to harm him.
These allegations do not show that the defendants sub-
jected Walker to a hostile environment for retaliatory rea-
sons, however. Jones’ conduct, even if motivated by a retali-
atory animus, was, as the defendants assert, too tepid to
constitute actionable harassment. See id. at 704. As we have
noted, harassing conduct must be so severe and/or pervasive
as to render the workplace hostile for both the plaintiff and
the reasonable employee. Smith v. Northeastern Ill. Univ.,
supra, 388 F.3d at 566; see also Stutler, 263 F.3d at 703.
Jones’ behavior, if annoying, does not rise to that level. As
for the conduct of Walker’s co-workers, we perceive two
shortcomings in Walker’s case. First, we are not convinced
that Walker has presented sufficient proof that Mueller was
negligent in its response to these incidents, such that the
conduct of the offending employees may be attributed to the
company itself for purposes of liability. See Knox v. Indiana,
93 F.3d 1327, 1334 (7th Cir. 1996). Although Walker was
10 No. 03-4012
unsatisfied with the response, the facts do not support the
inference that the defendants’ failure to do more was
unreasonable. That point aside, Walker has not shown that
Mueller and Jones handled these incidents in a materially
different way than they addressed comparable conduct, a
showing that is key to making a prima facie case of retalia-
tion via the indirect method. See Stone, 281 F.3d at 644. By
Walker’s own account, this was a factionalized workplace
where name-calling and hostility among the warehouse
workers was common. R. 30 ¶¶ 58-59. Nothing about
Walker’s treatment by co-workers, or the defendants’ re-
sponse, was sufficiently distinct as to suggest that they were
retaliatory as opposed to yet another iteration of the
inappropriate behavior that appears to have been common
at the Addison facility.
C. Denial of Walker’s request for additional time to re-
spond to summary judgment motion
After Mueller and Jones filed their summary judgment
motion below, Walker sought an extension of time to re-
spond to that motion. Walker sought the extension based on
outstanding discovery disputes concerning the production of
payroll records that might establish, contrary to the defen-
dants’ assertion, that the company paid the lead person more
than other warehouse workers. By establishing a pay
differential, Walker hoped to show that Jones’ decision not
to place him in the lead person position amounted to an
adverse employment action for purposes of his retaliation
claim. Walker did not get the additional time that his attor-
neys had hoped for, and because they were unable to
assemble records establishing that the lead person was paid
more than other workers in support of Walker’s summary
judgment response, the district court held that Jones’ re-
fusal to select Walker for the position was not an adverse
employment action. Walker now contends that the district
No. 03-4012 11
court erred in declining to give him more time to complete
discovery on this question and to respond to the summary
judgment motion.
Walker acknowledges that in order to prevail on this argu-
ment, he must show not only that the district court abused its
discretion in not giving him more time, e.g., Woods v. City of
Chicago, 234 F.3d 979, 990 (7th Cir. 2000), but also that his
inability to complete discovery as to the payroll documents
worked to his actual and substantial prejudice, e.g., Gile v.
United Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996).
Walker cannot establish that the court’s decision prejudiced
him, ultimately. As we noted above, even if we indulge the
assumption that the lead person was paid more than other
workers and that the refusal to hire an individual for that
position might constitute an adverse employment action,
Walker’s contention that Jones’ decision not to choose him for
that spot was retaliatory fails for another reason, namely
that Jones had at least one legitimate, non-retaliatory
reason not to choose him which Walker has not shown to be
pretextual. The payroll records have no bearing on Jones’
rationale.
III.
For the reasons we have discussed, we AFFIRM the district
court’s entry of summary judgment in favor of the defen-
dants, as well as the district court’s decision not to give the
plaintiff additional time in which to respond to defendants’
summary judgment motion.
12 No. 03-4012
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-05