Hamm v. Weyauwega Milk Products, Inc., 02-2529.

332 F.3d 1058

Michael J. HAMM, Plaintiff-Appellant, v. WEYAUWEGA MILK PRODUCTS, INC., Defendant-Appellee.

No. 02-2529.

United States Court of Appeals, Seventh Circuit.

Argued December 10, 2002.

Decided June 13, 2003.

Russell T. Golla (argued), Anderson, Shannon, O'Brien, Rice & Bertz, Stevens Point, WI, for plaintiff-appellant.

Lauri D. Morris (argued), Quarles & Brady, Madison, WI, for defendant-appellee.

Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Michael Hamm alleges that he was sexually harassed at work by his male coworkers and was terminated as a result of his complaints about the harassment in violation of Title VII. The district court concluded that Hamm could not establish that he was discriminated against "because of" sex as required by Title VII and granted summary judgment in favor of Hamm's employer, Weyauwega Milk Products. Because we agree with the district court that Hamm's evidence only supports work performance conflicts or speculation concerning his sexual orientation, we affirm.

I. BACKGROUND

Michael Hamm, a heterosexual male, began working at Weyauwega Milk Products, a producer of dairy products including cheese, in 1992. Hamm held numerous positions during his employment and his job responsibilities generally included cleaning the equipment and work area, maintaining the supplies, and filling in for other production employees during breaks or days off. Hamm was regarded as a good employee until approximately 1997, when Weyauwega hired a friend of Hamm's, Jeff Zietlow. Beginning in early 1998, Hamm filed a number of complaints with Weyauwega management and with the Wisconsin Equal Rights Division (ERD) alleging harassment by his male coworkers. The Weyauwega plant where Hamm worked was almost entirely male; no women worked in any of the areas of the plant in which Hamm worked.

Hamm filed his first written complaint with Weyauwega management on January 15, 1998, stating that Dean Bohringer, one of Hamm's coworkers, threatened that if Hamm did not do his job properly, then Bohringer would "kick [his] ass to make [him] do so."¹ Hamm also described an incident in the break room in which Bohringer allegedly threw the door open and "started cursing and swearing" at Hamm for failing to replace an empty barrel of cleaning fluid. Hamm further alleged that Bohringer threw the chemical barrel across the room, screamed at him, and told him he should quit. Hamm admits that he yelled back at Bohringer during the incident. Hamm's complaint related another event during which Bohringer yelled at Hamm because, in Hamm's view, Bohringer believed that he was disrupting equipment and not working quickly enough.

Also, beginning in late 1997, and continuing into 1998, Weyauwega began to have concerns about Hamm's work performance. Many of the complaints about Hamm's work performance by Weyauwega management and Hamm's coworkers centered around their perception that Hamm spent too much time talking to Zietlow and engaging in horseplay. In response to Hamm's initial complaint, Weyauwega instructed Bohringer to "cut down on his swearing when he is mad" and told Hamm to reduce the amount of time he visits with other employees and to more closely follow plant procedures.

During the summer of 1998, Weyauwega documented a number of work errors committed by Hamm including failing to perform his work duties, damaging a milk truck, and spending too much time talking to Zietlow. Weyauwega eventually gave Hamm a final written warning letter dated August 18, 1998 instructing him to 1) stop the horseplay in which he was involved, 2) stop talking to Jeff Zietlow other than for job-related activities, and 3) cooperate with fellow employees and act as a team player.²

In September of 1998, Hamm filed his first complaint with the ERD. His complaint alleged that he was called a "faggot," "bisexual," and "girl scout," and that his coworker Dean Bohringer threatened to snap his neck and threw things at him. Hamm also stated he was retaliated against for reporting these incidents to Weyauwega management. In response to Hamm's complaints, Weyauwega set up a meeting between Weyauwega management, Hamm, and Bohringer. During the meeting, Bohringer apologized to Hamm, and Hamm promised to focus on correctly performing his job.

Although exact dates of its genesis are unknown, it is undisputed that during this time a rumor existed among workers at the plant that Hamm and Zietlow's friendship was romantic in nature. Hamm's coworkers thought it odd when Hamm gave Zietlow a boat and let him use his four-wheel vehicle. The sometimes contentious nature of their friendship also drew the attention of coworkers. Hamm called the police department in January 1999 to report that Zietlow, then under age 21, was in a bar drinking and again in February 1999 to report that Zietlow threatened him. Around the same time, Hamm called the police to report that his vehicle had been damaged in the Weyauwega parking lot, and he indicated in his deposition that he believed Zietlow had damaged the vehicle. He also reported that Zietlow had scratched his face. Hamm sued Zietlow in January of 1999 for the return of his four-wheeler, two chain saws, and money that Zietlow had borrowed but not returned. Zietlow was suspended by Weyauwega in early 1999 for striking Hamm's brother, Joe Hamm, also a plant employee, with a pipe. After Zietlow returned to work, Hamm reported that Zietlow soaked him with a water hose. Zietlow was terminated in March of 1999.

Hamm filed his second complaint with Weyauwega on March 24, 1999, claiming that coworker Fred Kivisto accused Hamm of "looking out of the corner of my eyes at him" and had threatened Hamm with a pipe. Hamm also alleged that Kivisto told coworkers that Hamm was a homosexual and warned them not to bend over in front of him. Kivisto admitted in his deposition that he told Hamm "not to be sizing me up."

Approximately two months later, on May 25, 1999, Hamm filed another complaint with Weyauwega alleging that Mike Fischer, a coworker, and Bohringer were watching him while he worked. He also complained that Weyauwega had not adequately addressed his earlier complaints. Hamm filed a fourth written complaint with Weyauwega on June 7, 1999, claiming that Bohringer yelled obscenities at him, ordering him to get off a forklift. He also repeated his complaint that Kivisto told coworkers not to bend over in front of him.

Weyauwega investigated Hamm's newest complaints. According to Weyauwega, its interviews with Hamm's coworkers revealed that they were frustrated with his inability to complete work tasks correctly and with his instigation of problems and rumors at the plant. During his interview for the investigation, Hamm suggested that Bohringer and Fischer were trying to get him fired.

Hamm also filed a second complaint with the ERD in early June 1999, alleging retaliation by his coworkers for filing his first ERD complaint. Hamm alleged, among other things, that Carl Wodrich, a coworker, and Fischer complained about Hamm's work performance and interfered with his work equipment in retaliation for Hamm's ERD complaint; that Kivisto threatened him with a pipe; that Frank Young, another coworker, threatened to "shove the water hose up [Hamm's] ass" after he was hit with the water from the hose; that management "thought I was `that way' because they had reason to believe Jeff Zietlow might be `that way'"; and that "Dean Bohringer stated I was a worthless piece of human flesh and later on shoved me or purposely ran into me in the hallway."

Weyauwega offered Hamm a severance agreement on June 14, 1999, with two and one-half weeks' pay; Hamm negotiated an increase to seven weeks' pay on June 15, 1999, but left his final approval of the agreement open. Hamm underwent an exit interview reviewing COBRA and 401(k) paperwork, and Hamm cleaned out his locker. Hamm was not scheduled for work again, and he filed a claim for unemployment compensation on June 22, 1999. In a letter dated July 7, 1999, Weyauwega informed Hamm that it regarded him as "voluntary quit" as of July 1, 1999, unless he agreed to an enhanced severance agreement.

On July 9, 1999, Hamm filed a third complaint with the ERD restating his complaints about Bohringer's outburst while Hamm was on the forklift and the comments by Kivisto. He also alleged that he was terminated in retaliation for his complaints.

In September of 2000, Hamm filed suit in federal court, alleging that he was sexually harassed and retaliated against for filing complaints with Weyauwega and with the Wisconsin Equal Rights Division in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. After at least nineteen depositions were taken and discovery was exchanged, Weyauwega moved for summary judgment. The district court granted summary judgment in favor of Weyauwega. Hamm appeals.

II. ANALYSIS

We review the district court's decision to grant summary judgment de novo. Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir.2002). Summary judgment is properly entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue as to any material fact exists, we construe all facts and draw all reasonable inferences in favor of Hamm, the nonmoving party. See Hilt-Dyson, 282 F.3d at 462.

A. Sexual harassment claim

Hamm's claim, that he was sexually harassed by his male coworkers, requires us to navigate the tricky legal waters of male-on-male sex harassment. The protections of Title VII extend to both women and men. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ("Title VII's prohibition of discrimination ...