Charles Scurlock v. Penthouse International Entert
Filed Nonprecedential Disposition PER CURIAM. AFFRIMED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6888765-1]  [17-2061]
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 December 6, 2017 *
Decided December 7, 2017
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
IRC, LP, d/b/a PENTHOUSE CLUB,
Appeal from the United States District
Court for the Southern District of Illinois.
J. Phil Gilbert,
Charles Scurlock appeals the entry of summary judgment for his former
employer, Penthouse Club, in this suit asserting age and race discrimination. We affirm.
Scurlock, who is black, was fifty years old when he was hired as a receptionist
and “courtesy host” for Penthouse Club in April 2014. Within days his direct
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
supervisor, Jim Lindsey, began calling him “stupid,” “dumb,” “special,” and “old,” on
their shared shifts, and this name calling happened “a lot of times.”
One very early morning in November, Scurlock was involved in a dispute at an
adjacent nightclub and told by the police to leave. Outside in the parking lot, Scurlock
ran into a coworker, Larry Scott, who hurled a racial epithet at him and screamed that
he had been “written up.” Scurlock texted Lindsey to ask why he was being written up.
After Lindsey called him, Scurlock described the morning’s incident, told him about
Scott’s use of the racially derogatory term, and complained that Lindsey had called him
“old” and other such things. Lindsey told Scurlock that he was not being written up
and should return to work, and Scurlock replied that he would not return unless
something was done about the name calling. Lindsey told Scurlock that he couldn’t do
anything about the racial epithet but assured him that it would not happen again.
Scurlock rebuffed Lindsey’s request to return to work, saying that he wanted to speak
to a supervisor above Lindsey’s rank.
Scurlock eventually spoke with manager Rich Overstreet, who promised to
investigate and get back to him. From this conversation, as well as his conversation with
Lindsey, Scurlock had the impression that he had been fired, so he did not return to
work. When he did not show up for his scheduled shift on November 24, the company
determined that he had quit his job and recorded the termination as a “voluntary
Scurlock then brought this suit, asserting that Penthouse—through racial slurs
such as Scott’s—violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, by
subjecting him to a hostile work environment and constructive discharge. He asserted
that Penthouse—through Lindsey’s repeated age-based comments—violated the Age
Discrimination in Employment Act, 29 U.S.C. § 621–34, also because of a hostile work
environment and constructive discharge.
The district court granted summary judgment to Penthouse. The judge reasoned
that Scurlock’s hostile-work environment claim based on race failed because he could
not point to evidence that Scott’s use of the racially derogatory term was sufficiently
severe or pervasive to create an objectively hostile work environment; the encounter
happened outside of work, and Scott was not in Scurlock’s chain of command. And
since Scurlock did not produce sufficient evidence that would permit a finding of a
racially hostile work environment, he could not establish the intolerable conditions
necessary to support a constructive-discharge claim. As for Scurlock’s
age-discrimination claim, the court acknowledged that a reasonable jury could deem
Lindsey’s name calling was insulting and pervasive, but concluded that no reasonable
jury could find that this made Scurlock’s work environment so intolerable that he was
compelled to resign. In any event, the court added, once Scurlock had reported
Lindsey’s conduct to Overstreet, Scurlock did not remain on the job long enough to give
Penthouse a reasonable opportunity to remedy it.
On appeal Scurlock generally challenges the district court’s conclusion that he
failed to present any evidence to establish a race-based hostile work environment. But
the district court properly concluded that Scurlock did not present evidence that the
harassment was sufficiently severe or pervasive. “[O]ne utterance of the n-word has not
generally been held to be severe enough to rise to the level of establishing liability,”
even though “such disrespectful language is deplorable and has no place in the
workforce.” Nichols v. Mich. City Plant Planning Dept., 755 F.3d 594, 601 (7th Cir. 2014).
Scott’s racial epithet was highly offensive and wholly unacceptable, but summary
judgment on this claim was proper because this single incident took place outside of the
workplace by an employee who did not supervise Scurlock.
Scurlock also argues, again in only general terms, that the district court erred by
finding the evidence insufficient to permit an inference of age-based hostile work
environment. But he misreads the court’s ruling. The court conceded that Lindsey’s
name calling was “humiliating” and that “a reasonable jury could find [that] Lindsey’s
conduct created an objectively hostile work environment based on age.” But the court
went on to conclude that no jury reasonably could find (1) that this name calling created
a work environment so intolerable such that he was compelled to resign, or (2) that
Penthouse did not exercise reasonable care to prevent age harassment, or (3) that
Scurlock took advantage of preventive or corrective opportunities available to him
through the company’s EEO policy for reporting harassment. See Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 525 U.S. 742, 765 (1998).
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