William R. Hrobowski v. Worthington Steel Company and Worthington Industries, Inc.

RIPPLE, Circuit Judge,

concurring.

I join the judgment and the opinion of the court and write separately only to elaborate my views on the application of Federal Rule of Appellate Procedure 28 to the element of employer liability. Given our preference for a merits disposition whenever possible, I normally would prefer a less aggressive use of Federal Rule of Appellate Procedure 28 than the one employed by the court’s opinion. In his opening brief to this court, Mr. Hrobowski set out in his “STATEMENT OF THE FACTS” an extensive elaboration of the facts he deemed relevant and supported those facts with citations to the record. Under our rules, however, that is only a first step. A party must go on to provide a reasoned, if short, application of those facts to each element of his claim. See Fed. R.App. P. 28(a)(9)(A) (requiring the “argument” in the appellant’s opening brief to include “the appellant’s contentions and the reasons for them, with citations to the authorities and parts of the *480record on which the appellant relies”).1 When this minimal threshold is satisfied, there is little difficulty relying on additional facts set forth in the briefs factual rendition and referenced to the record.

On the element of employer liability, Mr. Hrobowski’s argument in his brief to the district court merely notes, in the most conclusory terms and without any record citations, that Mr. Hrobowski was subject to harassing comments by his supervisors and by coemployees in the presence of his supervisors. Despite the district court’s admonitions regarding this failure, the portion of Mr. Hrobowski’s argument addressing employer liability in his opening brief to this court is only slightly more developed. Given this repeated ignoring of the rules, I cannot fault my colleagues for determining that Mr. Hrobowski’s noncompliance with Federal Rule of Appellate Procedure 28(a)(9)(A) is fatal to his case.

Mr. Hrobowski’s strongest argument on the employer liability element rests on the theory of constructive notice. See Mason v. S. Illinois Univ. at Carbondale, 233 F.3d 1036, 1046 n. 8 (7th Cir.2000) (“[T]he pervasiveness of coworker conduct could show the employer’s constructive notice of the harassment.” (emphasis removed)). However, Mr. Hrobowski did not so much as mention constructive notice to the district court, and his “argument” on constructive notice in his opening brief to this court was nothing more than another con-clusory allegation. See Appellant’s Br. at 14 (“There is no doubt Worthington was, at least, on constructive notice of the hostile environment.”). Accordingly, it is proper for the court not to consider this basis for liability. See Livingston v. As-socs. Fin., Inc., 339 F.3d 553, 559 n. 4 (7th Cir.2003) (“[FJailure to present [an] argument to the district court waives it on appeal.”); Campania Mgmt. Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 852 n. 6 (7th Cir.2002) (“Perfunctory and undeveloped arguments are waived, especially when, as here, ‘a party fails to develop the factual basis of a claim on appeal and, instead, merely draws and relies upon bare conclusions.’ ” (quoting Spath v. Hayes Wheels Int’l -Indiana, Inc., 211 F.3d 392, 397 (7th Cir.2000))). Mr. Hrobowski’s failure to make an argument on this point in anything other than the most conclusory terms is fatal to his case. Therefore, I agree that we must affirm the judgment of the district court for lack of a basis for employer liability.

. See also Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir.1999) (noting that "unsupported or cursory arguments” not in compliance with Federal Rule of Appellate Procedure 28(a)(9)(A) will not be considered); Rogers v. City of Chicago, 320 F.3d 748, 753 n. 2 (7th Cir.2003) (noting that arguments not properly raised until the reply brief will not be considered).