On January 18 1989 the second day of trial the court granted defendant Uniroyal Plastics Company's motions for involuntary dismissal Fed. R. Civ. P. 41(b) and for directed verdict Fed. R. Civ. P. 50(a) on plaintiff Dorothy Jennings' claims under Title VII 42 U.S.C. SEC. 2000e et seq. and 42 U.S.C. SEC. 1981. This memorandum is intended to comply with the requirements of Fed. R. Civ. P. 52(a).

I. Facts Applicable to All Claims

Uniroyal hired Ms. Jennings a black woman on July 7 1983 and discharged her on October 21 1983. Through her union Ms. Jennings filed a grievance that ultimately proceeded to arbitration. The arbitrator found cause for discipline but not for discharge and ordered Ms. Jennings reinstated without back pay. She returned to work on July 3 1984.

Ms. Jennings filed charges with the Equal Employment Opportunity Commission ("EEOC") on December 29 1983 claiming that she had been discharged on the basis of her race. On February 28 1986 the EEOC issued a "Notice of Right to Sue" letter that Ms. Jennings received on or about March 4 1986. Ms. Jennings filed her complaint in this case on May 30 1986.

Based on her experiences following her reinstatement at Uniroyal Ms. Jennings filed another charge with the EEOC on April 28; 1986 alleging that Uniroyal was retaliating against her for having filed her first EEOC charge. On October 29 1986 the EEOC issued a "Notice of Right to Sue" letter to Ms. Jennings with respect to the second charge. Pursuant to leave of court on January 12 1987 Ms. Jennings filed an amended complaint encompassing this second charge.

A. The Plaintiff's Claims

Trial commenced on Ms. Jennings' employment discrimination claims on January 17 1989. Ms. Jennings made the following claims under SEC. 1981 and Title VII:

(1) she claims that her October 1983 discharge was motivated by her race;

(2) she claims that she has been retaliated against since her 1984 reinstatement due to the filing of her first EEOC charge; and

(3) she claims that she has been harassed at her employment since her 1984 reinstatement due to her race.

A jury was impaneled to try the claims under SEC. 1981; the Title VII claims were to be tried to Court. See Williamson v. Handy Button Machine Co. 817 F.2d 1290 (7th Cir.1987).

B. Standard of Review

Although Rule 41(b) permits Court to weigh the evidence as trier of fact when ruling on a motion for involuntary dismissal at the close of the plaintiff's case in a bench trial Court has not done so in this case. Court applied the same standard to the Rule 41(b) motion in the Title VII claims and to the Rule 50(a) motion for directed verdict in the Sec. 1981 claims: whether the evidence viewed most favorably in the plaintiff's favor and combined with all reasonable permissible inferences would suffice to support a judgment in the plaintiff's favor. Volk v. Coler 845 F.2d 1422 (7th Cir.1988). Accordingly Court sets forth the evidence in the light most favorable to the plaintiff.

Much of the evidence related to issues Court did not reach due to the basis for its rulings on the motions; Court therefore confines its discussion to evidence material to the bases for the rulings. Court need not address the nondiscriminatory reasons Uniroyal articulated as justifying Ms. Jennings' discharge or the damages Ms. Jennings suffered as a result of her discharge.

Most of the testimony relevant to Court's ruling came from Ms. Jennings. As a witness Ms. Jennings plainly was more comfortable when testifying in a narrative fashion than in response to questions from her Counsel. Her narrative answers unfortunately occasionally became difficult to follow because she included several topics in her answers. Accordingly the statement of facts that follow may contain some minor discrepancies from what she intended to say. Court is confident however that any such discrepancies had no impact upon the bases for Court's rulings.

II. The Discharge Claim

Ms. Jennings claimed that she was discharged due to her race. She seeks recovery under SEC. 1981 and Title VII.

A. Relevant Facts

Ms. Jennings was hired into the finishing department of Uniroyal's Flex-O-Lite Division. She was placed on the day shift for training. She received no written criticism of her work performance. She then was transferred to her regular shift which ran from 3:00 p.m. to 11:00pm on August 15. About two weeks later the department supervisor Gene Garrett asked Ms. Jennings how she liked her job; she responded that she liked it fine. Apparently however some of her coworkers on her shift had complained to Mr. Garrett about Ms. Jennings' alleged unwillingness to help them. Ms. Jennings was unaware that anyone thought she wasn't doing her job.

On or about September 9 1983 a meeting was held for all shifts in the Industrial Relations Office concerning the production levels of Ms. Jennings' shift. Ms. Jennings did not know before that meeting that production was down. The discussion at first was directed at the shift as a whole rather than at Ms. Jennings. Apparently however the discussion soon focused on Ms. Jennings. Those present at the meeting which included Ms. Jennings' coworkers and management wanted to disqualify her from work in that department and move her to another shift but she refused to agree to that procedure. Some of Ms. Jennings' coworkers stated that if she continued in their department they would "sign out" of the department. There was discussion of possible personality conflicts. All three of her coworkers on the 3-to-11 shift were white as were the workers on the day shift and the supervisors on both shifts. It was agreed that Ms. Jennings would be transferred to the day shift for two weeks and see what happened to production on the 3-to-11 shift.

Ms. Jennings received no report of deficiencies during her performance on the day shift and she returned to the 3-to-11 shift on September 18. She remained on that shift until her discharge. She received no indication from her supervisors that she was not performing her job following her return to the 3-to-11 shift. *fn1

Ms. Jennings and Barbara Pfaller were the only persons working in her department on the 3-to-11 shift on October 2,1 1983. The department's operation demands cooperation among those working in it. Ms. Jennings testified that she and Ms. Pfaller had unspecified difficulties that evening and she told Ms. Pfaller that she intended to call their department foreman Mr. Garrett at her break. Ms. Pfaller assisted Ms. Jennings with completion of the task at hand then left without explanation. Ms. Pfaller returned a time later and the two women resumed work. Mr. Garrett then arrived.

Mr. Garrett took Ms. Jennings and Ms. Pfaller to his office and questioned them about what was happening. He then went to get the other workers leaving Ms. Jennings and Ms. Pfaller alone in his office. Upon his return he asked Ms. Jennings what she had said to Ms. Pfaller; Ms. Jennings replied that she had said nothing. *fn2 Mr. Garrett then asked Ms. Jennings if she had threatened Ms. Pfaller; Ms. Jennings denied having done so. Mr. Garrett then told Ms. Jennings to get her purse and coat and escorted her to the plant gate where he demanded her badge. After considerable discussion and a call to police Ms. Jennings surrendered her badge and left.

Two or three days later Ms. Jennings received a letter informing her she had been discharged.

On November 1, 1983 Ms. Jennings filed a grievance through her union. The grievance proceeded through three steps denied by management. The parties proceeded to arbitration in June 1984. The arbitrator ordered her reinstated to her job with seniority but without back pay finding that while Ms. Jennings' conduct warranted discipline it did not warrant dismissal. The arbitrator based his ruling on the collective bargaining agreement rather than on any issue of racial discrimination. The union refused to proceed further concerning the back pay issue.

B. The SEC. 1981 Claim

Uniroyal contends that the statute of limitations bars Ms. Jennings' claim under SEC. 1981. A two-year statute of limitations governs suits under SEC. 1981 in Indiana. Ms. Jennings was discharged on October 21 1983 and did not file this suit until May 30 1986 more than two years after her discharge.

Ms. Jennings argues that her discharge did not become final until the arbitrator ruled and further argues that the grievance proceedings themselves were discriminatory. The arbitrator ruled on Ms. Jennings' claims on June 20 1984 less than two years before she filed suit.

The Seventh Circuit succinctly resolved a similar issue in Patterson v. General Motors Corp. 631 F.2d 476 485 (1980) cert. denied 451 U.S. 914 (1981):

We also hold that the statute of limitations was not tolled by plaintiff's filing grievances with the Union. The law is clear that resort to a grievance process under a collective bargaining agreement does not toll the limitations period.

Accord Electrical Workers v. Robbins & Myers Inc. 429 U.S. 229 (1976) (pendency of grievance does not toll the running of the statute of limitations); see Delaware State College v. Ricks 449 U.S. 250 (1980) (statute of limitations commenced when professor learned tenure would be denied and signed one-year "terminal" contract not when that contract expired and professor was not rehired one year later).

Ms. Jennings presented no evidence that the arbitration procedure itself was racially biased or that any existing bias would be attributable to Uniroyal.

Ms. Jennings' Sec. 1981 claim accrued when she was discharged on October 21 1983. No legal basis exists for tolling the statute of limitations. Because she filed suit more than two years after the claim accrued her suit on that claim is barred and Uniroyal's motion for judgment at the close of the evidence must be granted as to that claim.

C. The Title VII Claim

Uniroyal raises no statute of limitations argument with respect to Ms. Jennings' Title VII discharge claim. She filed her EEOC claim in a timely manner after her discharge and filed suit in a timely manner after receiving her notice of right to sue.

To prevail on her Title VII discharge claim Ms. Jennings must show that Uniroyal intentionally discriminated against her on the basis of her race. She need not show that her race was the only reason for her discharge but must show that but for her race she would not have been discharged. McQuillen v. Wisconsin Education Association Council 830 F.2d 659 664 (7th Cir.1987) cert. denied 108 S. Ct.1068 (1988).

The United States Supreme Court recognizes two methods of proving discriminatory intent. A plaintiff in an employment discrimination suit may show by direct evidence that the employer acted with discriminatory intent. See Beard v. Whitley County REMC 840 F.2d 405 410 (7th Cir.1988). Ms. Jennings has not and does not claim to have introduced direct evidence of discriminatory intent.

Direct evidence of discriminatory intent is rarely available; accordingly the Supreme Court has approved a method of indirect proof of intent to discriminate. Under this method the burden of producing evidence shifts from one party to the other as the trial proceeds; if either party fails to satisfy its burden of going forward judgment for the other is appropriate.

Under the indirect proof model the plaintiff first must come forward with evidence sufficient to a case by showing that: (1) she was a member of a protected class (in this case black); (2) she was performing her job to her employer's satisfaction; (3) she was the victim of an adverse employment decision (in this case discharge); and (4) her employer replaced her with someone not of a protected class (in this case a white person) or assigned her employment tasks to employees not of a protected class (in this case white employees) or looked for a replacement employee with qualifications similar to the plaintiff's. McDonnell Douglas Corp. v. Green 411 U.S. 792 802 (1973).

If the plaintiff satisfies this initial burden the burden of production shifts to the defendant employer to articulate a non-discriminatory reason for its action 'with respect to the plaintiff employee. Texas Dept. of Community Affairs v. Burdine 450 U.S. 248 252-253 (1981); McDonnell Douglas Corp. v. Green 411 U.S. at 802. If the employer satisfies this burden the burden shifts to the plaintiff to produce evidence tending to show that the articulated reason was a pretext in the sense that it was not the true reason for the employer's action or that even if the articulated reason was a reason for the employer's action race also was a determining factor in the employer's decision. McDonnell Douglas Corp. v. Green 411 U.S. at 804. The plaintiff retains the ultimate burden of proof of intentional discrimination. Watson v. Fort Worth Bank and Trust 108 S. Ct.2777 2784 (1988); Andre v. Bendix Corp. 841 F.2d 172 175 (7th Cir.) cert. denied 109 S. Ct.144 (1988).

Ms. Jennings introduced evidence sufficient to satisfy her initial burden with respect to the first three elements of her prima facie case. She is black. Her testimony that she was performing her job well is sufficient to satisfy her burden of production on the second element. Yarbrough v. Tower Oldsmobile Inc. 789 F.2d 508 512 (7th Cir.1986). She was discharged.

Ms. Jennings presented no evidence however concerning the fourth element. Nothing in the record suggests that a white employee replaced Ms. Jennings or that her work tasks were assigned to white workers or that Uniroyal sought a person with her qualifications to replace her. Ms. Jennings argues that because all other workers in the department were white (actually her evidence established only that the other workers on the day and 3-to-11 shifts were white) an inference arises that she was replaced by a white person. Court disagrees that this evidence supports such an inference. See Bullard v. Sercon Corp. 846 F.2d 463 466-467 (7th Cir.1988).

Because Ms. Jennings failed to satisfy her burden of coming forward with evidence sufficient to establish a prima facie case under the McDonnell Douglas method of indirect proof the burden to articulate a non-discriminatory reason for the discharge never devolved upon Uniroyal. Oxman v. WLS-TV 846 F.2d 448 453 (7th Cir.1988) ("the first three elements of the prima facie proof formulation cannot standing alone create a presumption of discrimination"). Ms. Jennings failed to present evidence sufficient to constitute a case of intentional discrimination and Uniroyal is entitled to involuntary dismissal of that claim under Rule 41(b). Mason v. Pierce 774 F.2d 825 827-829 (7th Cir.1985) (plaintiff failed to show she was qualified for position; summary judgment appropriate).

III. The Retaliation Claim

Ms. Jennings contends that after she resumed her employment on July 3 1984 pursuant to the arbitration ruling Uniroyal unlawfully retaliated against her because of her first EEOC filing. No statute of limitations issue plagues this claim and the same legal standard applies to the Sec. 1981 claim and the Title VII claim. Collins v. State of Illinois 830 F.2d 692 (7th Cir.1981).

A. Relevant Facts

Ms. Jennings was not returned to the department from which she was discharged. She returned to work in the Insta-Lite Division. She returned at a higher rate of pay but considered the job assignment less desirable than her earlier job.

1. Pfaller's "Bumping" Ms. Jennings from her Shift

The first retaliatory incident that Ms. Jennings identified in her testimony occurred just before Christmas 1985 when Barbara Pfaller came into the department and took Ms. Jennings' job on Ms. Jennings' shift.

2. The Written Obscenity

Some time after Ms. Jennings was "bumped" from her shift she saw offensive writing on product passing through her department: Dot suck dicks .

3. Locker Assignment and Limitation

At some unspecified time Uniroyal began to reassign lockers for the workers in Ms. Jennings' department. The workers were limited to three lockers. Because Ms. Jennings came to work on the bus she testified she used four. She did not testify that she was forced to give up her fourth locker or disciplined for using the fourth locker.

4. The Bathrooms and the Pearl Carver Incident

She testified that she needed to use the bathroom to change the warm clothes she wore to work on the bus and for reasons Ms. Jennings did not detail she had to wait until others were out of the bathroom before she could enter to change. She testified that the one time she did not wait until others were out co-worker Pearl Carver claimed that Ms. Jennings had assaulted her. Ms. Jennings denies having assaulted Ms. Carver but was convicted of battery in Court of Indiana.

5. The Locker Search

At some unspecified time Uniroyal personnel searched Ms. Jennings' lockers. Because Ms. Jennings was unable to recall the combination of some of the locks the locks were cut off the lockers.

6. Police Questioning

In January or February 1986 Ms. Jennings was called to the Mishawaka Indiana police station. When she arrived her rights were read to her but the officers would not tell her what the call was about so she left. She also testified that she was told that some things were missing from Uniroyal and it was thought that she might be responsible.

7. Pfaller's "Bumping" of Ms. Jennings from her Department

At some unspecified time Ms. Jennings testified Barbara Pfaller "bumped" Ms. Jennings out of the department in which she was working.

8. Unexcused Absences: Doctor's Note

In 1986 Ms. Jennings was placed on probation by her supervisor for unexcused absences. Ms. Jennings explained that there had been a misunderstanding about the dates for which her doctor had excused her; the dates were ambiguous because Ms. Jennings then worked a shift that began before midnight and ended after midnight thus covering two different dates. By the time she returned to her doctor for a clarifying note her doctor had been suspended from practice and she was unable to obtain information sufficient to satisfy Uniroyal. Ms. Jennings completed her probation without further incident.

A company rule requires probation if an employee has more than three unexcused absences but Ms. Jennings understood that supervisors are vested with discretion concerning granting excuses for absences. She concedes it did not happen that way when she was absent due to her trip to Florida an incident discussed below.

9. Suspension for Insubordination

Around September 1986 Ms. Jennings was transferred to another department. Things went well until around April 1987 when she began having problems again. On May 5 1987 having completed the work she needed to do at the time she left her department to visit an employee in another building. She went first to the cafeteria then to the other department where she was unable to find the other employee. She smoked a cigarette in the other department's rest area and returned to her department. Her supervisor confronted her told her that her break time was only twenty minutes and that she should return to her work station. Ms. Jennings did so but thought about it further and went to her supervisor's office. One union steward was summoned to the office then another then security came and Ms. Jennings turned in her badge. She was suspended for insubordination.

10. Rude Remark by Co-Employee

One evening Ms. Jennings became ill at work and had to go home. Before she left she attempted to instruct another employee who was to take over Ms. Jennings' work station on the tasks to be performed. The other employee told her Kiss my ass, you don't tell me how to do my job.

11. Telephone Calls about Lawsuit

After she returned to work following her insubordination suspension Ms. Jennings received several telephone calls about this lawsuit while she was working. One such call came from Counsel Gregory Kelly who then represented Uniroyal in this suit. Mr. Kelly called to tell her about a change in Court's scheduling of a status conference. Ms. Jennings was not represented by Counsel at that time. Ms. Jennings filed an EEOC claim as a result of that telephone call. Ms. Jennings also testified that when she received messages from Uniroyal personnel concerning scheduling in the lawsuit she did not believe the messages and everyone in the department knew about the messages when she received them.

12. Physical Examinations and Drug Testing

Ms. Jennings testified without specificity that when she took physical examinations after being off work for medical reasons she was required to undergo drug tests that were not required of other employees.

13. Unexcused Absences: The Florida Trip

In late 1988 Ms. Jennings went to Florida for a vacation. The evening before she was to return to work she decided that her vacation had exhausted her too much to return to work that night; accordingly she called Uniroyal from Florida and stated that she would be not be at work that night. She planned to leave for South Bend after a night's rest but her rental car was stolen delaying her departure an additional day or two. She reported the stolen car to Uniroyal and presented Uniroyal with all available police documentation but still was suspended for unexcused absences. Her supervisor had accepted the police reports but she learned of her suspension a week later. She remains on that probation.

14. Loss of Assignment after "Bumping" by Retiring Employee

In April 1988 an employee with a medical limitation returned from medical leave and through his seniority bumped her from her department. When she began to train him he told her he planned to retire soon. She put in a request for the return of her job but did not sign the request; somebody in Uniroyal's personnel department had told her it was unnecessary to sign the request because she was qualified for the job. When the senior employee left another person got the job she desired.

15. Layoff and Brief Recall

Ms. Jennings also testified that she was laid off for three weeks at some unspecified time; upon her return to work she spent three days in an undesirable work area she described as "the chutes" then was laid off for another three weeks.

B. The Law Concerning Retaliation Claims

To establish a case of retaliation Ms. Jennings was required to show that (1) she engaged in conduct protected by statute (2) that she suffered adverse action by Uniroyal and (3) a causal link exists between the protected conduct and Uniroyal's adverse action. Collins v. State of Illinois 830 F.2d 692 702 (7th Cir.1987); Jennings v. Tinley Park Community Consolidated School District No. 146 796 F.2d 962 966-967 (7th Cir.1986) cert. denied 481 U.S. 1017 (1987).

That Ms. Jennings satisfied the first element of her prima facie case cannot be challenged: she filed an EEOC claim against Uniroyal on December 29 1983 alleging racial discrimination. For purposes of ruling on the motions at the close of Ms. Jennings' case Court assumes that she has shown some adverse action by Uniroyal; adverse job action is not limited to reduction of pay or monetary benefits. Collins v. State of Illinois 830 F.2d at 703.

Nothing in the record before Court however suggests a causal link between her EEOC claim and any adverse action by Uniroyal. In some cases a short interval between the statutorily protected conduct and the adverse action can provide that link. Collins v. State of Illinois 830 F.2d at 705; Clark v. Chrysler Corp. 673 F.2d 921 (7th Cir.) cert. denied 459 U.S. 873 (1982). Here however the first adverse action of which Ms. Jennings complains -- Ms. Pfaller's "bumping" of Ms. Jennings from her shift -- occurred in December 1985 two years after she filed her EEOC charge and (more relevant) seventeen months after the arbitrator reinstated her. No causal link can be inferred from that interval.

The only "adverse action" that appears to have been causally connected to the EEOC claim in any way relates to Uniroyal's calling Ms. Jennings to the office to take telephone calls concerning this case when she was unrepresented by Counsel. Such action cannot be deemed "retaliation".

Ms. Jennings presented no evidence tending to show the existence of one of the essential elements of her retaliation claims under Sec. 1981 and Title VII. Accordingly Uniroyal's motion for involuntary dismissal on the Title VII claim and for a directed verdict on the Sec. 1981 claim must be granted.

IV. The Post-Reinstatement Racial Harassment Claim

The facts set forth in part III-A above concerning Ms. Jennings' retaliation claims also are relevant to her claims under Title VII and Sec. 1981 for post-reinstatement harassment based on race. Ms. Jennings also presented the testimony of Terry Akins a black co-employee at Uniroyal. Mr. Akins worked in different departments at Uniroyal than did Ms. Jennings; until Ms. Jennings' recent departmental reassignment they had no supervisors in common. Ms. Akins testified that in 1983 he began to be assigned menial tasks not assigned to comparable white workers such as the sweeping of floors. He also testified that he received fewer offers of overtime work than similarly situated white workers. His supervisors checked on his performance of assigned tasks with greater regularity than they checked on white workers.

Racial harassment may be the basis of claims under SEC. 1981 and Title VII. Nazaire v. Trans World Airlines Inc. 807 F.2d 1372 1380 (7th Cir.1986) cert. denied 107 S. Ct.1979 (1987). Courts have recognized that occasional or sporadic racial slurs or epithets will not alone support an harassment claim under either sec. 1981 or Title VII. North v. Madison Area Ass'n for Retarded Citizens-Developmental Centers Corp. 844 F.2d 401 409 (7th Cir.1988). To be actionable the harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Meritor Savings Bank v. Vinson 477 U.S. 57 67 (1986). Whether such a showing has been made must be determined on a case-by-case basis with due regard to the totality of the circumstances. Gilbert v. City of Little Rock 722 F.2d 1390 1394 (8th Cir.1983) cert. denied 466 U.S. 972 (1984).

An employer is not liable for all racial harassment by its supervisors Meritor Savings Bank v. Vinson 477 U.S. at 72 and certainly is not liable for every racial slur by a non supervisory member of its work force. Hunter v. Allis-Chalmers Corp. 797 F.2d 1417 1421 (7th Cir.1986). Acts of co-employees are not those of an "employer" as defined by Title VII. M. Player Employment Discrimination Law SEC. 5.60 at 427 (1988). An employer may however be liable for the actions of its work force if its management-level employees knew or reasonably should have known about a campaign of harassment or barrage of racist acts epithets and threats and failed to take reasonable steps to prevent it. Hunter v. Allis-Chalmers Corp. 797 F.2d at 1421; Taylor v. Jones 653 F.2d 1193 1199 (8th Cir.1981); DeGrace v. Rumsfeld 614 F.2d 796 805 (1st Cir.1980). Under these circumstances it is the employer's failure to act rather than the acts of the co-employees or supervisors alone that gives rise to employer liability.

Courtd by this standard it would seem that several of the acts of which Ms. Jennings complains cannot be attributed to Uniroyal. The written obscenity the Pearl Carver incident and the co-employee's rude remark were not shown to have been called to the attention of Ms. Jennings' supervisors and were not the sort of ongoing conduct of which an employer reasonably should have known.

More importantly an employee claiming discrimination through harassment must show that she would not have been the object of harassment but for that quality that places the employee in a protected class such as race sex age religion or national origin. Henson v. City of Dundee 682 F.2d 897 904 (11th Cir.1982). Such a plaintiff need not show that her race was the sole factor in her treatment; she need only show that it was a determining factor. Oxman v. WLS-TV 846 F.2d 448 452 (7th Cir.1988). Ms. Jennings simply presented no evidence from which a trier of fact reasonably could have found that she would have been treated differently if she were white. Nothing in the evidence or the acts themselves suggest any racial animus. A comparison of the facts Ms. Jennings has described with the facts of cases in which employers have been held liable for racial harassment demonstrates that the acts to which Ms. Jennings was subjected differ in kind and degree from the sort of thing that will result in liability.

For example in Taylor v. Jones 653 F.2d 1193 black employees were subjected to remarks such as "uppity nigger" smart nigger boy Let's go and get these niggers Oh, don't worry about it, we're just barbecuing a few niggers and "they start treating us like niggers they're making us park in the back and enter through the back door now"; a white employee an avowed member of Ku Klux Klan hung a hangman's noose in a supply room.

In Hunter v. Allis-Chalmers 797 F.2d 1417 racial graffiti appeared on bathroom walls and the company bulletin board with statements such as "the KKK is not dead nigger" and "open season on coons" and depicting the plaintiff having sex with his male foreman; notes were left at work stations with statements such as Save this mess for the nigger on the second shift ; a hangman's noose covered with a black oily substance appeared on a black worker's testing equipment.

At the other end of the spectrum the plaintiff in Torres v. County of Oakland 758 F.2d 147 (6th Cir.1985) based her racial harassment claim on a single incident in which she was called an "ass" or an "asshole". Court noted that the epithet is not in itself a racially or ethnically charged term and that a single use of such a term could not support a claim for racial harassment under either Title VII or SEC. 1981.

Court does not intend to hold that a plaintiff may establish a claim for racial harassment only by presenting evidence of use of racial epithets. Volk v. Coler 845 F.2d 1422 1437 (7th Cir.1988) ("An alleged victim of sexual harassment may also proceed under Title VII by employing the indirect method of proof including shifting burdens of production. "J. Such a holding would be unnecessary to the ruling on the defendant's motions and would render employment discrimination law powerless to combat the subtle forms of racial discrimination that still exist in our society. But to establish a prima facie case of employer harassment based on race a plaintiff must show something more than that she was treated badly and that she is black. *fn3 Ms. Jennings has shown nothing more. Mr. Akins' testimony was probative to establish discriminatory intent on the part of Uniroyal. A significant number of incidents showing dissimilar treatment of blacks can establish a "pattern or practice" of discrimination on the part of the employer. There must however be more than a few isolated incidents of harassment. Minority Police Officers v. City of South Bend 617 F. Supp. 1330 1353 (N.D. Ind. 1985) 801 F.2d 964 (7th Cir.1986).

Court also does not intend to condone any failure by Uniroyal to address the conduct that was directed at Ms. Jennings. In a suit such as this however Court cannot simply Court the fairness or propriety of an employer's conduct toward an employee. Pollard v. Rea Magnet Wire Co. Inc. 824 F.2d 557 560-561 (7th Cir.) cert. denied 108 S. Ct.488 (1987) ("A district Court does not sit in a court of industrial relations. No matter how medieval a firm's practices no matter how high-handed its decisional process no matter how mistaken the firm's managers Title VII and SEC. 1981 do not interfere. . . .Unless Pollard's race mattered . . . he is not entitled to relief."). Court must determine whether that conduct was based on the employee's race. Ms. Jennings has presented no evidence from which a trier of fact could infer that Uniroyal's post-reinstatement treatment of her was based on race. Accordingly Uniroyal's motions for directed verdict on the Sec. 1981 claim and for involuntary dismissal on the Title VII claim must be granted.

V. Conclusion

Based on the foregoing Court concludes that the defendant is entitled to involuntary dismissal of the plaintiff's claims under Title VII and that the defendant is entitled to a directed verdict on the plaintiff's claims under 42 U.S.C. SEC. 1981. Judgment shall be entered for the defendant.