Whigum, William v. Keller Crescent

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted January 18, 2008*
Decided January 18, 2008

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 07-2960

WILLIAM E. WHIGUM, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 1:06-cv-921-LJM-WTL
KELLER CRESCENT COMPANY,
Defendant-Appellee. Larry J. McKinney,
Judge.

ORDER

William Whigum, a former folder technician for Keller Crescent Company,
filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17, and 42 U.S.C. § 1981, claiming that he was subjected to a hostile work
environment and discriminated and retaliated against because he is black. The
district court granted summary judgment for Keller Crescent. Whigum appeals,
and we affirm.
We construe the facts in the light most favorable to Whigum. See Healy v.
City of Chicago, 450 F.3d 732, 738 (7th Cir. 2006). Keller Crescent produces folded

*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
FED. R. APP. P. 34(a)(2).
No. 07-2960 Page 2

literature, among other things, and employed Whigum to operate folding
machinery. The company never once disciplined Whigum in the nearly four years
that he worked there. But in December 2005 plant manager Dan Koch reassigned a
technician who had previously assisted Whigum on certain assignments to a
different machine. Koch taunted Whigum, insinuating that he could not handle
these assignments on his own. According to Whigum’s deposition testimony, Koch
mistreated everyone in the plant in this manner.

In February 2006 Whigum received a positive evaluation from his direct
supervisor and earned a corresponding pay raise. Whigum viewed the raise as
inadequate. He requested to see his personnel file and discovered for the first time
that it contained a description—which he deems misleading—of a dispute he had
earlier entered into with two other employees. He immediately filed a charge of
discrimination with the EEOC. According to a list of events compiled by Whigum
from notes that he apparently kept in the weeks after he filed his EEOC charge,
Koch “brought up the EEOC” in a company meeting on March 1 when Whigum
requested to speak to him about his pay. That same day, also according to
Whigum’s list, he was assigned a “hot” (high priority) job to complete, and for the
next three days he was assigned to malfunctioning machines. Whigum produced no
other evidence to show that these events had occurred, but Keller Crescent did not
tender any evidence refuting that they happened either. In early March Whigum
voluntarily resigned.

He filed his complaint in the district court in June 2006. Whigum claimed
that Keller Crescent discriminated against him because of his race when the
company falsified his personnel records and paid him a raise that was not
commensurate with those it paid to its white employees. He also claimed that Koch
subjected him to a hostile work environment because of his race. And lastly
Whigum claimed that Keller Crescent assigned him to high priority jobs and faulty
machines, setting him up to fail, in retaliation for the charge he had filed with the
EEOC. Both Whigum and Keller Crescent moved for summary judgment.

The district court granted Keller Crescent’s motion. The court found that
Whigum had not produced any direct or circumstantial evidence of discrimination
or retaliation. Nor, the court concluded, had he made out a prima facie case of
either claim under the indirect method of proof. First, determined the court,
Whigum failed to identify similarly situated white employees who were better paid.
Of the two employees Whigum pointed to, the court found that one was actually
paid less than Whigum and the other held a different position, was more senior, and
had a different supervisor. In any event, the court determined that Keller Crescent
had not taken any materially adverse actions against Whigum that could support
either his discrimination or retaliation claim. And as to Whigum’s hostile work
No. 07-2960 Page 3

environment claim, the court found that Whigum failed to introduce evidence
demonstrating that the workplace had become objectively offensive.

On appeal, Whigum contends for the first time that Keller Crescent violated
his rights under the Fair Labor Standards Act, the Americans with Disabilities Act,
and the Age Discrimination in Employment Act. But claims that are not raised in
the district court are waived on appeal. See Weigel v. Target Stores, 122 F.3d 461,
464 (7th Cir. 1997).

As to the claims that were raised in the district court, Whigum first asserts
without elaboration that the district court erred in granting summary judgment in
Keller Crescent’s favor on both his discrimination and retaliation claims. (He
informs us that these two claims are Title VII claims only, not also claims under
§ 1981 as asserted in his complaint.) To succeed on either claim, Whigum must
show that he suffered a materially adverse employment action. See Nichols v. S. Ill.
Univ.-Edwardsville, __F.3d__, No. 06-2688, 2007 WL 4553649, at *4, *10 (7th Cir.
Dec. 28, 2007). Keller Crescent contends that both Whigum’s discrimination and
retaliation claims are doomed because he failed to make this necessary showing.

The test for determining whether adverse treatment by an employer is
actionable under Title VII differs for discrimination and retaliation claims. For a
discrimination claim, a materially adverse action is one that diminishes an
employee’s compensation or benefits, constitutes a nominally lateral transfer but
nonetheless reduces an employee’s career prospects, or subjects an employee to
altered working conditions that are degrading and humiliating. See O’Neal v. City
of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). We have emphasized that such
actions are “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Nichols, __F.3d__, 2007 WL 4553649, at *5 (internal quotation
marks and citation omitted). To support a retaliation claim, however, qualifying
adverse acts extend beyond those that affect the terms and conditions of
employment. See Burlington Northern and Santa Fe Ry. Co. v. White, __U.S.__, 126
S. Ct. 2405, 2412-13 (2006). A materially adverse employment action in the realm
of a retaliation claim is one that would dissuade a reasonable employee from
making or supporting a claim of discrimination. See id. at 2415; Lewis v. City of
Chicago, 496 F.3d 645, 655 (7th Cir. 2007).

As to Whigum’s retaliation claim, we agree with Keller Crescent that the
treatment he alleges to have received falls short of being actionable. Being assigned
to a high priority job for a day and being assigned to a broken machine for three
days would not dissuade a reasonable employee from pursuing a claim of
discrimination. See Roney v. Ill. Dep’t of Transp., 474 F.3d 455, 461-63 (7th Cir.
2007). There is no evidence in the record that Keller Crescent even criticized
Whigum’s performance on these assignments, let alone disciplined him for it. And
No. 07-2960 Page 4

Whigum’s recollection that Koch “brought up the EEOC” at a meeting is, without
more, too vague for us to draw from it any inference of retaliation. Summary
judgment on Whigum’s retaliation claim was therefore properly granted in Keller
Crescent’s favor on this ground.

The same is true, for the most part, as to Whigum’s discrimination claim. He
fails to demonstrate that the characterizations in his personnel records influenced
his pay or otherwise damaged his “career prospects”; indeed, he was never
disciplined for his involvement in the underlying incidents, nor does he dispute that
the incidents occurred. See Nichols, __F.3d__, 2007 WL 4553649, at *6. The receipt
of an inadequate pay raise can, though, amount to an adverse employment action,
see Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004), but Whigum fails to make
out the rest of his prima facie case, namely, that he was paid less than similarly
situated white employees. See Barricks v. Eli Lilly and Co., 481 F.3d 556, 559-60
(7th Cir. 2007). Neither of the two white employees that Whigum points to are
sufficiently similar “to allow for a meaningful comparison in order to divine whether
intentional discrimination was at play.” Id., at 560. Whigum does not dispute the
district court’s finding that one was in fact paid less than him. And the other was
not a folder technician. Summary judgment on Whigum’s discrimination claim was
therefore properly granted as well.

Whigum next presses his claim that he was subjected to a hostile work
environment because Koch ridiculed him. To succeed on this claim, Whigum must
show that he was subjected to severe or pervasive harassment because of his race
and that it resulted in an abusive working environment. See Luckie v. Ameritech
Corp., 389 F.3d 708, 713 (7th Cir. 2004). He must demonstrate that the workplace
became both subjectively and objectively offensive. See Ezell v. Potter, 400 F.3d
1041, 1047 (7th Cir. 2005). Whigum points to a handful of comments made by Koch
that were, as the district court recognized, unprofessional, but Whigum offers
nothing to establish that Koch was motivated by race, see Beamon v. Marshall &
Ilsley Trust Co., 411 F.3d 854, 863-64 (7th Cir. 2005), nor anything to establish that
Whigum’s work environment could objectively be perceived as hostile, see Roney,
474 F.3d at 463. “[N]ot every perceived unfairness in the workplace may be
ascribed to discriminatory motivation merely because the complaining employee
belongs to a racial minority.” Beamon, 411 F.3d at 863. Whigum’s claim is
therefore without merit.

Whigum has also filed a motion for sanctions against Keller Crescent, see
FED. R. APP. P. 37(b), but it is utterly frivolous and consequently denied.

The judgment is AFFIRMED.