* Of the Eastern District of Michigan, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1515

ANDRE MENDENHALL, SR.,

Plaintiff-Appellant,

v.

MUELLER STREAMLINE CO.,

Defendant-Appellee.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 01 C 9740—John Corbett O’Meara, Judge.*

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ARGUED MAY 6, 2005—DECIDED AUGUST 19, 2005

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Before KANNE, ROVNER, and WOOD, Circuit Judges.

KANNE, Circuit Judge. Andre Mendenhall, Sr., worked in

a Mueller Streamline Company warehouse from 1988 until

he was terminated on August 28, 2001. After he was fired,

he filed a Title VII claim alleging race discrimination,

hostile work environment, and retaliation. Mueller moved

for summary judgment on all three claims. Chief Judge

Charles P. Kocoras granted summary judgment in Mueller’s

favor on the race discrimination claim, but denied the
2 No. 04-1515

motion as to the hostile work environment and retaliation

claims. The two remaining claims were set for trial and the

case was transferred to Judge John Corbett O’Meara. On

the trial’s second day, Judge O’Meara ruled that a hostile

work environment claim could not exist independent of a

race discrimination claim. Mendenhall appeals this ruling.

We vacate and remand.

I. Background

We begin with a brief rendition of the facts of the case,

construing all facts in the light most favorable to

Mendenhall. See Simpson v. Merchants Recovery Bureau,

Inc., 171 F.3d 546, 551 (7th Cir. 1999). Mendenhall’s duties

at Mueller involved picking orders, loading trucks, putting

away stock, and cleaning. Various incidents during the term

of his employment made Mendenhall, an African-American,

feel he was being discriminated against and subjected to a

hostile work environment. When he brought these incidents

to the attention of his supervisor, Deborah Jones, a Caucasian woman, he was ignored or berated.

Mendenhall claims that two Hispanic co-workers, Eliseo

Covarubbias and Ernesto Reyes, continually harassed him

by making insulting references to his mother and calling

him names in Spanish such as “black monkey” and “dog.” In

another incident, feces was smeared across Mendenhall’s

locker. Although Mendenhall complained about these occurrences numerous times, Jones did not investigate or

discipline anyone. Instead, she told Mendenhall that she

was “sick and tired of this discrimination bullshit of [his].”

Beginning in April 2001, the word “NIGA” appeared written in graffiti in approximately seventeen locations

throughout the warehouse. Mendenhall and two other employees (one African-American male and one Caucasian

male) told Jones that they were offended by the graffiti.

Jones again did not investigate or discipline anyone for this
No. 04-1515 3

1 The district court ruled that these two disciplinary actions could

not be considered as evidence of discrimination because they took

place more than 300 days prior to the filing of the EEOC charge

and thus are time barred. See Billow v. Much Shelist Freed

Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 892-93 (7th

Cir. 2001).

conduct. In fact, she did not even have the offensive graffiti

removed. After repeated complaints from Mendenhall,

Jones accused him of writing the graffiti himself to boost

his discrimination claim. Mendenhall claims that Jones

challenged him to “sue all you like, go to the EEOC; I am

the law, I don’t care about the EEOC; this company’s got

deep pockets; it will overwhelm you.”

In the months preceding his termination, Mendenhall was

disciplined several times. In June 2000, Mendenhall was

given a disciplinary reprimand because he was working too

slowly. On October 24, 2000, Jones issued a disciplinary

warning to Mendenhall because he allegedly took a magazine into the restroom and remained there for 15 minutes

while on the clock.1

 Mendenhall was issued a warning on

April 4, 2001, for harassing his co-workers. Two weeks later,

on April 19, Mendenhall was suspended for making a gun

gesture with his hand toward Covarubbias and Reyes.

Mendenhall claims that all of these disciplinary actions

were unjustly imposed on him. He claims that he did not

make the gun gesture and that Jones did not adequately

investigate the allegation against him. Specifically, he

argues that a co-worker who was with him at the time

would have told Jones, if she had asked, that Mendenhall

made no such gesture.

On August 28, 2001, Jones decided that Mendenhall was

working too slowly because he had not finished picking an

order by 11:15 A.M. In order to prove her point, Jones picked

a duplicate order and claims she completed in 40 minutes

what it took Mendenhall three hours to do. Then, after
4 No. 04-1515

stating that she had verbally warned him the day before to

work faster, Jones fired Mendenhall.

On August 31, 2001, Mendenhall filed a race discrimination charge with the EEOC against Mueller. He received a

right-to-sue letter and filed suit in the district court on

December 20, 2001, alleging that he was subjected to a hostile work environment, race discrimination, and retaliation.

On November 15, 2002, Mueller filed a motion for summary

judgment on all counts. Chief Judge Kocoras granted the

motion in part and denied it in part.

On the hostile work environment claim, the court found

that the “frequent and humiliating” racist name-calling

from co-workers, the “NIGA” graffiti which was not removed, and Jones’s reaction to Mendenhall’s complaints

which “let Mendenhall know that she did [not] think his

complaints of harassment were worthy of respect and that

she was not going to do much [to] stop the harassment,”

was adequate evidence that there were disputed issues of

material fact and that summary judgment must therefore

be denied. The district court also denied summary judgment

on the retaliation claim. On the race discrimination claim,

however, the court granted summary judgment in favor of

Mueller after finding that Mendenhall had failed to establish his prima facie case because he provided no evidence

showing that he was performing his job satisfactorily or

that similarly situated individuals were treated more

favorably. The court scheduled trial for the remaining

claims and the case was reassigned to Judge O’Meara.

Before the trial began, Mueller filed a number of motions

in limine. In Motion in Limine #6, Mueller sought to prevent Mendenhall from presenting evidence about matters

that had been disposed of by summary judgment.

Judge O’Meara denied the motion, finding that Mendenhall

“is barred from introducing evidence to establish a claim for

race discrimination or any other dismissed component of
No. 04-1515 5

this action. The same evidence, however, is relevant to

[Mendenhall’s] allegation that the termination was retaliatory and part of an on-going pattern of harassment.”

On the second day of the trial, February 18, 2004,

Judge O’Meara shifted course. He stated that he had spent

a sleepless night trying to understand what evidence was

relevant to the remaining claims. He concluded that

“Chief Judge Kocoras has ruled that there is no actionable

race discrimination involved in this case. If there is no

actionable race discrimination, there can be no actionable

hostile environment.” (Pl.’s App. at 112.) In other words,

“without race discrimination or some other illegal behavior

on the part of the employer, there is no actionable hostile

environment[.]” (Pl.’s App. at 114.) Judge O’Meara stated

that Mendenhall was permitted only to “proceed here with

evidence that his suspension and discharge were in retaliation for his assertion of his legal rights . . . .” (Pl.’s App. at

116.)

At this point, it appears that the trial fell into a state

of confusion. Mendenhall’s counsel tried to understand the

basis of Judge O’Meara’s sua sponte ruling and then attempted to clarify what evidence he would be allowed to

present. Counsel told the court that in order to prove his

retaliation claim, he intended to question the witnesses

about the derogatory graffiti and Jones’s reaction to

Mendenhall’s complaints about the graffiti. Judge O’Meara

said that he could not question the witnesses about the

graffiti and stated that “[t]his case has to do with retaliation, and if you can’t show . . . some causal connection

between suspension and firing and the assertion by

Mr. Mendenhall of the rights of himself and others under

the law, the civil rights law, then you don’t have a case.

That’s retaliation. Nothing else is relevant under my ruling.” (Pl.’s App. at 124-25.)

After a short recess, Mendenhall’s counsel told the court

that he would like to take an interlocutory appeal based on

the dismissal of the hostile environment claim because the
6 No. 04-1515

ruling materially affected his ability to continue with the

case. Judge O’Meara agreed that an appeal was proper but

suggested that:

It might make sense for plaintiff, with whatever words

you want to put around it, to say ‘Given what the court

has said, there is nothing more for us to do but rest at

this point. We don’t have any way to go forward, given

what you have ruled,’ and at that point if there were—

even without a motion, at that point I could rule—I’m

not saying I’ll do this because I really am a little bit

uncertain about how much you have to get to have the

prima facie case on retaliation, but at this point it

might be possible for the court to make a ruling that

you didn’t make your prima facie case out and therefore

dismiss the case, which would posture it a lot better for

an interlocutory appeal. It wouldn’t look like it happened right in the middle of somebody’s testimony. But

you can think about that.

(Pl.’s App. at 135-36.) The court went on to say that “I know

I have changed the signals on you substantially, and I guess

I said it before, but I will do whatever I need to do to put

you on the road to an interlocutory appeal. I’ll do the

district judge’s job by saying I think you should be entitled

to it.” (Pl.’s App. at 137.) Mendenhall’s response to Judge

O’Meara’s question about whether he wanted to rest his

case was:

I don’t know that I have rested. I’m more than happy to

continue my case, but it’s impracticable and . . . I

believe we have established a prima facie case. However, we are unable to continue because of the portions

of the case that you believe cannot continue, so that’s

really what our position is. I don’t know that translates

to resting. I can only say that I’m more than happy to

continue to prosecute my case within my understanding

of the law and what the summary judgment ruling was.
No. 04-1515 7

(Pl.’s App. at 139.) Judge O’Meara said he understood

Mendenhall’s position. He then dismissed the jury and

ended the trial.

Two days later, on February 20, 2004, Judge O’Meara issued an order entering judgment for the defendant, finding

that “Defendant is entitled to a judgment of no cause of

action as a matter of law.” So, upon that record, we discuss

the merits of this appeal.

II. Analysis

We will first address Judge O’Meara’s conclusion that

Mendenhall’s hostile environment claim could not survive

absent an actionable race discrimination claim. We review

de novo the district court’s conclusions of law. See Pearson

v. Edgar, 153 F.3d 397, 401 (7th Cir. 1998).

Mendenhall argues that under the law of the case doctrine, Judge O’Meara should not have been permitted to

alter the previous ruling by Judge Kocoras who found that

material issues of fact remained relating to the hostile work

environment claim and the retaliation claim. In situations

where a different member of the same court re-examines a

prior ruling, “the law of the case doctrine . . . reflects the

rightful expectation of litigants that a change of judges midway through a case will not mean going back to square

one.” Best v. Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997).

The second judge may alter previous rulings in certain

circumstances, but “he is not free to do so . . . merely

because he has a different view of the law or the facts from

the first judge.” Id. (quoting Williams v. C.I.R., 1 F.3d 502,

503 (7th Cir. 1993)). So, “the presumption is that earlier

rulings will stand, even though it can be overcome for

compelling reasons (such as new controlling law or clear

error).” Best, 107 F.3d at 546.

“When the workplace is permeated with discriminatory
8 No. 04-1515

intimidation, ridicule, and insult, that is sufficiently severe

or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII

is violated.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 21

(1993) (internal quotations and citations omitted). An

actionable hostile environment claim requires the plaintiff

to prove: (1) that the work environment was both subjectively and objectively offensive; (2) that the harassment was

based on membership in a protected class; (3) that the

conduct was severe or pervasive; and (4) that there is a

basis for employer liability. See Cerros v. Steel Techs., Inc.,

288 F.3d 1040, 1045 (7th Cir. 2002) (citing Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998)). Factors

that may be considered in deciding whether the environment is hostile or abusive “may include the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s

work performance.” Harris, 510 U.S. at 23.

Judge O’Meara neither cited any new controlling law nor

demonstrated that the previous ruling was clear error when

he altered Judge Kocoras’s ruling. In fact, we can find no

caselaw supporting Judge O’Meara’s ruling that a valid race

discrimination claim is a prerequisite for a hostile environment claim. His ruling was incorrect as a matter of law in

this circuit and Mueller conceded as much at oral argument.

Because the challenged ruling is on an issue of law, “the

question is not whether the second judge should have

deferred to the ruling of the first judge, but whether that

ruling was correct. If it was, the ruling of the second judge

was incorrect, whether or not he even had the power to

make it[.]” Williams, 1 F.3d at 503. Judge O’Meara’s ruling

was wrong. Mendenhall should have the opportunity to

present his hostile environment claim to a jury.
No. 04-1515 9

In order to decide whether to remand the retaliation

claim, we must determine whether Mendenhall rested his

case. If he did rest his case, and had not yet established the

prima facie case (as Judge O’Meara found), we will be

required to affirm the district court’s decision to grant judgment as a matter of law to Mueller on the retaliation claim.

If, however, we find that he did not rest his case, judgment

as a matter of law was not proper regardless of whether

Mendenhall’s prima facie case had been shown before the

trial ended.

Mueller argues that Judge O’Meara properly entered

judgment as a matter of law on the retaliation claim because Mendenhall had “been fully heard on [the] issue and

there [was] no legally sufficient evidentiary basis for a reasonable jury to find for [him] on that issue[.]” Fed. R. Civ.

P. 50(a)(1). We review de novo the district court’s entry of

judgment as a matter of law. See Murray v. Chi. Transit

Auth., 252 F.3d 880, 886 (7th Cir. 2001).

Judge O’Meara told the parties that he was prepared to

deny the relevance of any testimony relating to the graffiti

and name-calling because those pieces of evidence were part

of the race discrimination and hostile environment claims.

By prohibiting all background evidence that Mendenhall

planned to use to show that he was fired because of his

complaints, Judge O’Meara made Mendenhall’s retaliation

claim nearly impossible to prove. Mendenhall realized this

and decided his only viable course of action was to acquiesce

to the ruling and preserve his right to appeal. His request

for an interlocutory appeal was the next logical step.

When Judge O’Meara suggested that the case would be

better positioned for appeal if Mendenhall rested his case

and allowed the court to grant judgment as a matter of law

in favor of Mueller, Mendenhall’s counsel said that although he would be happy to continue to present his case

within his understanding of the law, it was impracticable to
10 No. 04-1515

do so because of the limits created by Judge O’Meara’s

rulings. He further stated on the record, “I don’t know that

translates to resting.” (Pl.’s App. at 139.) He did not finish

presenting his evidence. In fact the only witness who had

been fully examined was Jones, an adverse witness. One coworker had been partially examined when the trial was

stopped, but neither Mendenhall nor his three other

witnesses had taken the stand.

Mendenhall asked the court for an interlocutory appeal

and left the courtroom believing that Judge O’Meara would

certify the issue for appeal under 28 U.S.C. § 1292(b). This

belief was based on Judge O’Meara’s statement that “I will

do whatever I need to do to put you on the road to an interlocutory appeal. I’ll do the district judge’s job by saying I

think you should be entitled to it.” (Pl.’s App. at 137.) That

is what § 1292(b) requires, and Mendenhall’s belief that a

certification would issue was certainly understandable.

Judgment as a matter of law may be granted only when

a party has “been fully heard on the issue . . . .” Fed. R. Civ.

P. 50(a)(2). Because Mendenhall had not fully presented his

case on the retaliation issue, Judge O’Meara erred when he

entered judgment against Mendenhall. We need not discuss

whether Mendenhall established his prima facie case on the

retaliation claim. That question will be answered by the

jury after Mendenhall is permitted to present his case in

full.

III. Conclusion

For the reasons stated above, the order dismissing the

hostile work environment claim is VACATED. The entry of

judgment for the defendant on the retaliation claim is also

VACATED. Both the hostile work environment and retalia-
No. 04-1515 11

tion claims are REMANDED to the district court for further

proceedings. On remand, Circuit Rule 36 shall apply.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-19-05