In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 17Ȭ2626

ROBERT SMITH,

PlaintiffȬAppellee,

v.

ROSEBUD FARM, INC., d/b/a ROSEBUD FARMSTAND,

DefendantȬAppellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11–cv–09147 — Robert M. Dow, Jr., Judge.

____________________

ARGUED MAY 29, 2018 — DECIDED AUGUST 2, 2018

____________________

Before BAUER, BARRETT, and ST. EVE, Circuit Judges.

BARRETT, Circuit Judge. Robert Smith worked behind the

meat counter at Rosebud Farm, a local grocery store. After

several years of ongoing sexual and racial harassment from

his male coworkers and supervisor, Smith sued Rosebud. He

claimed various violations of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 1981, and the Illinois Gender Violence Act.

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The jury returned a verdict for Smith. Rosebud appeals, mainȬ

taining that the district court erred in denying its motions for

judgment as a matter of law and a new trial.

Rosebud argues that it was entitled to judgment as a matȬ

ter of law on Smith’s Title VII sex discrimination claim. To

win, Smith had to show more than unwanted sexual touching

or taunting; he had to show that the harassment occurred beȬ

cause of his sex. Rosebud contends that Smith’s evidence

demonstrates that the other men in the shop engaged in “sexȬ

ual horseplay,” not sex discrimination. But Rosebud is wrong

about that: the evidence supports the inference that Smith’s

coworkers harassed him because he was male. The shop was

a mixedȬsex workplace, and only men were groped and

taunted. Because men were treated differently from women

at Rosebud, a reasonable jury could conclude that Smith was

tormented because of his sex.

Rosebud also insists that the district court should have

awarded it judgment as a matter of law on Smith’s § 1981 reȬ

taliation claim and granted a new trial because of inflammaȬ

tory statements that Smith’s counsel made during his closing

argument. But Rosebud did not raise either of these arguȬ

ments below, so it has forfeited them. Its challenges to the

judgment uniformly fail.

I.

In 2003, Robert Smith began working as a butcher at RoseȬ

bud Farm, a small grocery store on the south side of Chicago.1

Smith had been on the job for less than three weeks when his

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ 1 Because the jury returned a verdict in Smith’s favor, we construe all

facts and reasonable inferences in the light most favorable to him.

Hertzberg v. SRAM Corp., 261 F.3d 651, 661 (7th Cir. 2001).

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male coworkers behind the meat counter began harassing him

by grabbing his genitals and buttocks. Over the next four

years, that behavior was consistent, if not constant. At trial,

Smith recalled the many times his coworkers groped him,

grabbed him, and even reached down his pants. They repeatȬ

edly mimed oral and anal sex, both on Smith and on each

other. Carlos Castaneda, Smith’s supervisor, not only knew

about the harassment, but he even participated once or twice.

And the group did not stop at aggressive sexual contact—

they also targeted him for his race, using racial epithets and

telling him “go back to Africa.”ȱȱ

Smith complained about the sexual harassment multiple

times to no avail. In January of 2008, he decided that enough

was enough. He filed a charge of discrimination with the

Equal Employment Opportunity Commission (EEOC) and

the Illinois Department of Human Rights, alleging that his

coworkers had sexually harassed him. He also claimed that

Castaneda had discriminated against him based on his race

by giving him fewer weekly work hours and sending him

home for nine days without pay.ȱȱ

When Castaneda received notice of the discrimination

charges, he told the meatȬcounter employees to stop “goofing

off” and quit the “horseplay.” Smith’s coworkers changed

their behavior after their meeting with Castaneda, but not for

the better. Behind the meat counter, they banged their cleavȬ

ers menacingly at him and passed by him with large knives

pointing out of the meat trays they carried. Smith found his

car—which he parked in the gated, employeeȬonly lot—with

slashed tires and a cracked windshield. Smith became increasȬ

ingly frightened at work, and he quit his job in June 2008 beȬ

cause of the “intolerable” working conditions.ȱȱ

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After the EEOC issued him a Notice of Right to Sue, Smith

brought a host of claims against Rosebud and its employees,

seeking compensatory and punitive damages, as well as attorȬ

neys’ fees and costs. Four of Smith’s claims went to trial: sex

discrimination in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq.; race discrimination under 42

U.S.C. § 1981; retaliation under both statutes; and violations

of the Illinois Gender Violence Act, 740 ILCS 82/1, by two

Rosebud employees, including the general manager, Carlos

Castaneda.2 The jury returned a verdict for Smith on all

claims.3ȱȱ

Rosebud raises three issues on appeal. It claims that the

district court should have granted it judgment as a matter of

law on the sexual harassment claim, because Smith failed to

prove that his male coworkers discriminated against him beȬ

cause of his sex. It argues that it was also entitled to judgment

on the § 1981 retaliation claim: according to Rosebud, there

was no evidence that Smith’s coworkers knew that he had

filed charges of racial discrimination against Rosebud; thus,

they could not have retaliated against Smith for filing them.

Finally, Rosebud complains that the district court should have

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ 2

Smith’s other claims were resolved prior to trial in favor of the deȬ

fendants.ȱȱ

3 The jury awarded Smith a total of $2,407,500 ($2,250,000 against

Rosebud). Because of Title VII’s statutory damages caps and the excessive

nature of the award, the district court reduced the jury’s total award to

$470,000, $462,500 of which was against Rosebud. The court also awarded

equitable relief under Title VII and § 1981, granting Smith $69,761.80 in

back pay and $19,894.77 in prejudgment interest. Rosebud appeals only

the Title VII sex discrimination claims and the § 1981 retaliation claim. The

claims of the individual defendants are not on appeal.ȱȱ

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granted it a new trial when Smith’s counsel compared RoseȬ

bud’s employees to terrorists in his closing argument.

II.

Smith’s Title VII claim charged his male coworkers and

male supervisor with creating a hostile work environment by

severely and pervasively harassing him because of his sex. See

Vance v. Ball State Univ., 570 U.S. 421, 427 (2013) (defining a

“hostile work environment” under Title VII as one “so perȬ

vaded by discrimination that the terms and conditions of emȬ

ployment were altered”). Rosebud does not dispute that

Smith introduced evidence sufficient to show that its employȬ

ees severely and pervasively harassed him with the

knowledge of the store’s general manager. But Title VII does

not impose a flat ban on all harassment. Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998). It prohibits harassȬ

ment that discriminates against an individual “because of

such individual’s ... sex.” 42 U.S.C. § 2000e–2(a)(1). And

Rosebud contends that Smith did not prove that its employees

harassed Smith because he was male. According to Rosebud,

no rational jury could have concluded that the harassment

was discriminatory; thus, the district court should have

granted its Rule 50 motion for judgment as a matter of law.ȱȱ

Rosebud relies on Shafer v. Kal Kan Foods, Inc., 417 F.3d 663

(7th Cir. 2005) and Lord v. High Voltage Software Inc., 839 F.3d

556 (7th Cir. 2016), both of which involved plaintiffs who

failed to prove that the sameȬsex harassment they experiȬ

enced was discriminatory. In Shafer, the plaintiff’s male

coworker told him that he had “a ‘cheerleader ass’ that

‘would look real nice on my dick.’” Shafer, 417 F.3d at 665. On

one occasion, the coworker shoved Shafer’s face into his

clothed crotch and forcibly simulated oral sex. Id. On another,

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he yanked Shafer’s hand, placed it on his crotch, and

“moan[ed] as if Shafer were masturbating him.” Id. There

were two other incidents: the coworker seized a handful of

Shafer’s chest hair in the locker room and later bit Shafer’s

neck. Id. We held that the plaintiff was the victim of “four batȬ

teries,” at the hands of his male colleague, not sex discriminaȬ

tion. Id. at 666.4 Shafer failed to establish “that working conȬ

ditions at [his workplace] were worse for men than for

women”; indeed, the evidence reflected that “[the offending

coworker] picked on anyone of either sex he could get away

with tormenting.” Id. Without further evidence of discriminaȬ

tory behavior, the aggressive encounters with his coworker

reflected no more than “personal animosity orjuvenile behavȬ

ior.” Id. The unwanted sexual contact was “dramatic,” id. at

665, and grounds for bringing a state tort claim, id. at 667, but

it did not constitute discrimination on the basis of sex. Id. at

665–66.

Lord also involved sexually tinged harassment of a male

plaintiff by male coworkers. In Lord, the plaintiff brought a

Title VII suit complaining that his male coworkers had poked

and slapped him on the buttocks, reached between his legs,

and teased him about a female coworker whom they thought

he liked. Lord, 839 F.3d at 560. But to prove that his coworkers

had discriminated against him because of his sex, Lord “reȬ

lie[d] entirely” on the fact that this behavior had “sexual overȬ

tones.” Id. at 562. As in Shafer, we held that sexual touching

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ 4 The plaintiff in Shafer also failed to show that any discrimination was

by his employer rather than his coworker. Id. at 665 (“Shafer encounters

difficulty with both the ‘discrimination’ branch and the ‘by the employer’

branch.”) In Smith’s case, the only issue is whether the harassment was

discriminatory.

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and taunting was not enough, standing alone, to prove that

the plaintiff had been harassed because he was male. Id. at

561–62.ȱȱ

Rosebud contends that Smith’s claim resembles those

pressed by the plaintiffs in Shafer and Lord. It emphasizes

Shafer’s distinction between “sexual horseplay” and “sex disȬ

crimination” and insists that Smith experienced the former,

not the latter. Shafer, 417 F.3d at 666 (“Sexual horseplay differs

from sex discrimination.”). To support its argument, Rosebud

points out that quarters were tight behind the meat counter,

and the butchers often bumped into each other during the

workday. Smith’s coworkers testified that they frequently

teased and touched each other—not just Smith—and that they

often did so in front of others. Rosebud says that this demonȬ

strates that the meat counter culture was one of sexual roughȬ

housing, not sex discrimination.

Rosebud is correct that that unwanted sexual behavior—

including the touching of genitals and buttocks—is not necesȬ

sarily actionable under Title VII. Oncale, 523 U.S. at 80 (“We

have never held that workplace harassment, even harassment

between men and women, is automatically discrimination beȬ

cause of sex merely because the words used have sexual conȬ

tent or connotations.”); Shepherd v. Slater Steels Corp., 168 F.3d

998, 1009 (7th Cir. 1999) (“[T]he sexual content or connotaȬ

tions of workplace harassment do not automatically render

that conduct sex discrimination.”). Shafer and Lord mark an

important boundary line: Title VII is an antiȬdiscrimination

statute, not an antiȬharassment statute.ȱȱ

But Smith, in contrast to the plaintiffs in Shafer and Lord,

introduced evidence that the harassment was discriminatory.

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Neither Shafer nor Lord offered any proof that the unwelȬ

come sexual touching was discrimination based on sex, inȬ

cluding any evidence that men in the workplace were treated

differently from women. Shafer, 417 F.3d at 666; Lord, 839 F.3d

at 562. Smith, on the other hand, offered direct comparative

evidence that only men, and not women, experienced the

kind of treatment that he did at Rosebud. See Oncale, 523 U.S.

at 80–81 (“A sameȬsex harassment plaintiff may also ... offer

direct comparative evidence about how the alleged harȬ

asser[s] treated members of both sexes in a mixedȬsex workȬ

place.”). Ample testimony—from both Smith and other witȬ

nesses—established that only men were groped, taunted, and

otherwise tormented. Witnesses recounted the numerous

times they saw men grabbing the genitals and buttocks of

other men. No witness recalled seeing female Rosebud emȬ

ployees subjected to the same treatment. Because Smith introȬ

duced evidence that his coworkers only harassed male emȬ

ployees, the jury was free to conclude that these men discrimȬ

inated against him on the basis of sex. See also Quick v. DonȬ

aldson Co., Inc., 90 F.3d 1372, 1378 (8th Cir. 1996) (finding that

evidence showing only men were the targets of sexual harassȬ

ment could support an inference of sex discrimination).

Rosebud argues that this direct comparative evidence is

insufficient because only male employees worked behind the

meat counter. If Smith worked in an allȬmale environment, the

fact that only men were touched and groped would not raise

an inference of sex discrimination. But Smith did not work in

an allȬmale environment—Rosebud was a mixedȬsex workȬ

place where men and women interacted daily. According to

Castaneda, Rosebud employed approximately 6–7 women

and 15–16 men in its small store. See Smith v. Rock–Tenn Servs.,

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Inc., 813 F.3d 298, 308 (6th Cir. 2016) (concluding that a workȬ

place with 30% female employees was not genderȬsegreȬ

gated). Female employees sometimes worked in the meat deȬ

partment when the shop was busy; they also brought orders

and returned items to the meat counter. And even if the allȬ

male meat counter had been segregated from the rest of the

store, that was not the only place where maleȬonȬmale sexual

harassment occurred—men also groped and harassed each

other in the stock room and produce section. Because men

worked alongside women at Rosebud and only men were harȬ

assed, a reasonable jury could conclude that Smith’s coworkȬ

ers would not have tormented him if he had been female.

III.

Rosebud next asserts that no rational jury could have

found for Smith on his 42 U.S.C. § 1981 retaliation claim. SecȬ

tion 1981 protects the right of all persons, regardless of race,

to “make and enforce contracts.” This protection encomȬ

passes retaliation claims when an employer takes an adverse

employment action against an employee for asserting rights

protected by § 1981. CBOCS West Inc. v. Humphries, 553 U.S.

442, 446 (2008); Tank v. T–Mobile USA, Inc., 758 F.3d 800, 807

(7th Cir. 2014). Smith alleged that his coworkers retaliated

against him after he reported race discrimination to the EEOC

by making his working conditions so intolerable he that was

forced to quit. That, he said, constituted a “constructive disȬ

charge” and therefore an adverse employment action under §

1981. Rosebud argues, however, that no retaliation could have

occurred because there was no evidence that Smith’s coworkȬ

ers knew that he had filed a charge of racial discrimination. If

they didn’t know about it, Rosebud says, they could not have

retaliated against him for it.ȱȱ

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Rosebud has forfeited this argument. To preserve a suffiȬ

ciencyȬofȬtheȬevidence challenge for appeal, a party moving

for judgment as a matter of law must “specify the judgment

sought and the law and facts that entitle the movant to judgȬ

ment.” Fed. R. Civ. P. 50(a)(2); see also Empress Casino Joliet

Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 823–24 (7th Cir.

2016) (citing Ortiz v. Jordan, 562 U.S. 180, 189 (2011)). RoseȬ

bud’s motion for judgment as a matter of law under Rule 50(a)

and its renewed motion under Rule 50(b) focused exclusively

on whether Smith’s decision to quit amounted to a construcȬ

tive discharge. Neither motion made any reference to the arȬ

gument Rosebud makes now: that a rational jury could not

have concluded that Smith’s coworkers retaliated against him

for filing a claim of race discrimination, because there was no

evidence that they knew about the claim. Rosebud’s failure to

challenge the sufficiency of the evidence on this ground at

trial precludes our review of the argument it asserts on apȬ

peal.ȱȱ

IV.

In a lastȬditch effort to disrupt the verdict, Rosebud argues

that it is entitled to a new trial because of inflammatory stateȬ

ments that Smith’s counsel made during his closing arguȬ

ment. Counsel referenced a thenȬrecent mass shooting in the

United States and stated “In the Middle East terrorists have

murdered tens of thousands of people creating chaos in counȬ

tries not having the order of law. A country that does not have

laws to protect the common good breeds anarchy.” He then

drew a comparison to Rosebud, calling it a “company that

breeds anarchy.” Rosebud claims that this comparison was so

unfairly prejudicial that the district court abused its discretion

in denying its motion for a new trial.

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The district court did not abuse its discretion, because

Rosebud did not raise this objection during counsel’s closing

argument. Rosebud raised two objections to counsel’s referȬ

ence to terrorism. It first complained that counsel’s statements

were “beyond the scope” and later protested that counsel was

appealing to “social science research ... not in the record.” It

did not, however, object on the ground that the statements

were prejudicial. Rosebud therefore forfeited this objection.

Hamdan v. Indiana Univ. Health N. Hosp., Inc., 880 F.3d 416, 422

(7th Cir. 2018).

In any event, Rosebud lost little by forfeiting the objection.

Improper statements made during closing arguments seldom

warrant a new trial, Soltys v. Costello, 520 F.3d 737, 745 (7th Cir.

2008), and this is not one of the rare cases in which they do. If

anything, the counsel’s comments hurt Smith more than they

hurt Rosebud. The district court observed a number of jurors

grimacing in reaction to the bizarre terrorism analogy. These

references would certainly not have been reason for the disȬ

trict court to set aside the jury’s verdict and start over.ȱȱ

***

All three of Rosebud’s challenges fail, and the judgment of

the district court is AFFIRMED.ȱȱ

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