In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-2167

WILLIAM R. HROBOWSKI,

Plaintiff-Appellant,

v.

WORTHINGTON STEEL COMPANY

and WORTHINGTON INDUSTRIES, INC.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 00 C 43—Rudy Lozano, Judge.

____________

ARGUED DECEMBER 2, 2003—DECIDED FEBRUARY 17, 2004

____________

Before RIPPLE, MANION, and DIANE P. WOOD, Circuit

Judges.

MANION, Circuit Judge. William Hrobowski sued his

employers, Worthington Steel Company and Worthington

Industries, Incorporated (collectively, “Worthington”),

asserting various claims of employment discrimination.

He appeals only from the entry of summary judgment in

Worthington’s favor as to his claim of a hostile environment

in violation of Title VII and 42 U.S.C. § 1981. We affirm.
2 No. 03-2167

I.

Worthington has employed Hrobowski, a black man, since

1976. Since January 30, 1997, Hrobowski has been

Worthington’s director of safety and health, although he has

been on medical leave since April 2, 1999. According to the

district court, Hrobowski put forth the following evidence

to support his claim of a hostile environment: “(1) Maintenance department employees used racial epithets [especially

the word ‘nigger’] frequently; (2) a co-employee made an

inappropriate comment about property values decreasing

when blacks move in; and (3) co-supervisors would tell

[Hrobowski] that he needed to ‘talk some nigger to nigger’

with an employee.” The district court concluded that,

because the alleged harassment was not severe and pervasive, because none of the alleged harassers was a supervisor

of Hrobowski, and because Hrobowski pointed to no

evidence that Worthington was negligent in dealing with

the racial harassment of Hrobowski, Worthington was

entitled to summary judgment.

II.

We review the district court’s grant of summary judgment

de novo, construing all facts in favor of Hrobowski, the

nonmoving party. Rogers v. City of Chicago, 320 F.3d 748, 752

(7th Cir. 2003). Summary judgment is appropriate when the

“pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In short, summary judgment

is warranted where “a rational trier of fact could not find for

the non-moving party.” Rogers, 320 F.3d at 752. 
No. 03-2167 3

Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens, and

shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.” 42

U.S.C. § 1981(a) (2000). Title VII forbids certain employers

“to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges

of employment, because of” his race. 42 U.S.C. § 2000e2(a)(1). There is no dispute that Worthington is an employer

subject to both laws. Hrobowski may establish a violation of

either statute by proving that Worthington subjected him to

a hostile work environment. EEOC v. Pipefitters Ass’n Local

597, 334 F.3d 656, 658 (7th Cir. 2003). To do so, Hrobowski

must show that (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the

harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive

working environment that seriously affected his psychological well-being; and (4) there is a basis for employer liability.

Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032

(7th Cir. 1998). 

The first question is whether a reasonable jury could

find that the allegedly harassing speech was unwelcome, a

question that the district court resolved in Hrobowski’s favor. Whether words or conduct were unwelcome presents

a difficult question of proof turning largely on credibility

determinations committed to the factfinder. Reed v. Shepard,

939 F.2d 484, 491 (7th Cir. 1991). Worthington argues that

any of the allegedly hostile words that Hrobowski encountered actually were welcome because, as Hrobowski admit-
4 No. 03-2167

ted, he too made racially oriented jokes and used words

such as “spic” and “nigger” in the workplace. It is true that

Worthington may not be held liable for a hostile environment that Hrobowski himself instigated. See id. In Reed,

for example, we held that a directed verdict was appropriate

against the hostile environment claim of a female jail

employee whose “preferred method of dealing with coworkers was with sexually explicit jokes, suggestions, and

offers.” Id.

This case, however, is distinguishable from Reed. Reed

admitted that she had never complained about the allegedly

harassing conduct. Id. at 487. All of the evidence in the

record, therefore, pointed to the conclusion that

she welcomed the conduct on which she based her suit.

Hrobowski, by contrast, points to competent evidence that

he did object to the type of racist language to which he was

subjected. In his deposition testimony, Hrobowski points

out that he complained to managers Mark Stier and Pat

Murley about racial language and jokes in the workplace.

Although it is unclear when Hrobowski made these protests

or exactly what he said to Stier and Murley (more about that

later), a reasonable jury could conclude from this evidence

that Hrobowski did not welcome racist speech, at least

when he was the victim of that language. Thus, in this case,

that the plaintiff himself used racist language does not lead

inexorably to the conclusion that he welcomed the racial

insensitivity of others. We therefore agree with the district

court that a reasonable jury could find that the words on

which Hrobowski predicates his claim for a hostile environment were unwelcome.

As to whether the harassment was based on race, there

is no dispute. We therefore turn to the third prong of

inquiry, asking whether a reasonable jury could find that

the harassment unreasonably interfered with Hrobowski’s
No. 03-2167 5

1 Hrobowski argues that he presented more evidence than the

district court acknowledged. We need not decide the issue because, assuming that the evidence were limited to what the district court outlined, Hrobowski still would have created an issue

of fact as to whether the harassment was severe or pervasive.

work performance by creating an intimidating, hostile, or

offensive working environment that seriously affected his

psychological well-being. Parkins, 163 F.3d at 1032. Another

method of framing this issue, as we have done in some of

our opinions, is to ask whether the harassing words or conduct were “severe or pervasive,” although the substance of

the inquiry is the same either way. See, e.g., Quantock v.

Shared Marketing Servs., Inc., 312 F.3d 899, 903-04 (7th Cir.

2002) (emphasis on the disjunctive added). The district court

held that Hrobowski did not satisfy the third element of a

hostile environment claim, but it based its analysis on the

erroneous premise that the harassing words or conduct had

to be both severe and pervasive. Not so: “one or the other

will do.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808

(7th Cir. 2000). For Hrobowski to prove that he was exposed

to a severe or pervasive hostile environment, he must prove

that the words or actions to which he was subjected were

both objectively and subjectively hostile. Robinson v.

Sappington, 351 F.3d 317, 329 (7th Cir. 2003). 

Considering the evidence that the district court delineated, and that we quoted above,1

 we conclude that

a reasonable jury could find that the work environment was

objectively hostile. According to Hrobowski’s deposition

testimony, on which he relied in opposition to

Worthington’s motion for summary judgment, he was

repeatedly subjected to hearing the word “nigger,” including more than one occasion in which a fellow supervisor

suggested that he talk to an employee “nigger to nigger.”
6 No. 03-2167

2 Competent evidence suggests that the word “nigger” was used

frequently, and not just on one or two occasions. We therefore are

not faced with the question of whether infrequent use of that

word would allow a reasonable jury to find an objectively hostile

environment.

Given American history, we recognize that the word “nigger” can have a highly disturbing impact on the listener. Cf.

Virginia v. Black, 123 S. Ct. 1536, 1545 (2003) (noting that the

Ku Klux Klan vowed to “keep niggers out of your town” as

part of its campaign of racial violence and intimidation).

Thus, a plaintiff’s repeated2

 subjection to hearing that word

could lead a reasonable factfinder to conclude that a working environment was objectively hostile. See, e.g., Rodgers v.

Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.

1993); see also Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill.

1984) (stating that “use of the word ‘nigger’ automatically

separates the person addressed from every non-black

person”). 

As to the subjective component of our inquiry, all that

Hrobowski has to establish is that he perceived the environment to be hostile or abusive. Haugerud v. Amery Sch. Dist.,

259 F.3d 678, 695 (7th Cir. 2001). As discussed above, a

reasonable jury could find that the words that Hrobowski

heard were unwelcome, and therefore there is an issue of

material fact regarding subjective hostility. 

All this said, we still must examine the the final element

of a hostile environment claim to determine whether there

is a basis for attributing liability to Worthington. The

standard for employer liability hinges on whether the

harasser was the plaintiff’s supervisor. Parkins, 163 F.3d at

1032. Harassment by a supervisor of the plaintiff triggers

strict liability, subject to the possibility of an affirmative

defense where the plaintiff suffered no tangible employ-
No. 03-2167 7

ment action. Id. Conversely, the employer may be found

liable for a hostile work environment created by an employee who was not the plaintiff’s supervisor only where

the plaintiff proves that the employer has “been negligent

either in discovering or remedying the harassment.” Id. As

mentioned above, the district court concluded that there

was not competent evidence that any of Hrobowski’s

supervisors committed harassment, and that Hrobowski

pointed to no evidence that Worthington was negligent in

discovering or remedying any harassment generated by

employees who were not his supervisors. We examine each

of these conclusions.

We first consider the issue of supervisory harassment. For

there to be an issue of material fact as to whether a supervisor harassed Hrobowski, it is not enough that he point

to evidence that just anybody with managerial authority

was racially abusive; instead, Hrobowski must show that

the harasser was his supervisor. Id. A supervisor is someone

with the power to affect the terms and conditions of the

plaintiff’s employment. Id. at 1034. In his opening

brief, Hrobowski devotes substantial effort to proving that

“managerial employees at Worthington directed offensive

comments to him.” But he never points to evidence that a

particular person with the power to influence the terms and

conditions of his employment made such remarks. We

therefore agree with the district court that there is no issue

of material fact as to whether one of Hrobowski’s supervisors contributed to the hostile environment of which he

complains. 

Whether Hrobowski was entitled to reach a jury depends,

therefore, on whether he pointed the district court to

competent evidence that Worthington was negligent in

discovering or rectifying the racial harassment any other

employee or employees directed at him. Worthington “will
8 No. 03-2167

not be liable for the hostile environment absent proof that it

failed to take appropriate remedial measures once apprised

of the harassment.” Hostetler, 218 F.3d at 809 (emphasis

added). Generally, the law does not consider an employer

to be apprised of the harassment “unless the employee

makes a concerted effort to inform the employer that a

problem exists.” Silk v. City of Chicago, 194 F.3d 788, 807 (7th

Cir. 1999) (internal quotation omitted). However, an

employer could be charged with constructive notice where

the harassment was sufficiently obvious. Mason v. Southern

Ill. Univ., 233 F.3d 1036, 1046 (7th Cir. 2000). 

The district court found that Hrobowski “failed to direct

[the district court’s] attention to any facts which would

show that Defendants were negligent in discovering or addressing racial harassment in the workplace” and that

Hrobowski had made “almost most no application of the

law to the facts” concerning whether Worthington was

negligent in discovering or remedying racial harassment. If

true, this would be a dispositive determination: evidence

not designated to the district court in resisting summary

judgment cannot be properly argued on appeal. Johnson v.

Cambridge Indus., Inc., 325 F.3d 892, 898-99 (7th Cir. 2003). 

In his opening brief, Hrobowski devotes slightly more

than one page of his argument section to the critical issue of

Worthington’s knowledge of the harassment. In that part of

his brief, he cites to no evidence in the record showing

either that Worthington had such knowledge or that he

so argued before the district court. Thus Hrobowski has

not met the standard of Fed. R. App. P. 28(a)(9)(A), which

requires arguments in the appellant’s brief to include “citations to the authorities and parts of the record on which

the appellant relies.” See Anderson v. Litscher, 281 F.3d 672,

675 (7th Cir. 2002). In his reply brief, Hrobowski develops
No. 03-2167 9

the argument for Worthington’s knowledge with some

citations to the record, but that comes too late. Rogers, 320

F.3d at 753 n.2.

Even if Hrobowski had briefed this matter properly,

however, he still would lose. In the section of his brief outlining the facts, Hrobowski states that the facts on which he

relies on appeal “were designated by Hrobowski to the

court below in opposition to summary judgment,” and he

then cites to pages four through eight of his brief in response to Worthington’s motion for summary judgment. An

examination of those pages reveals that, in opposing the

motion for summary judgment, Hrobowski claimed to have

notified Worthington of racial harassment on two occasions.

First, he claims to have “reported the frequent use of racial

remarks to Mark Stier, a manager.” Second, he claims to

have “reported the frequent use of racial remarks to Pat

Murley, Plant Manager.” Hrobowski did not tell the district

court when he made these protests. (Were they before or

after the environment at Worthington turned hostile?)

Moreover, he did not tell the district court the substance of

his reports. (Did Hrobowski complain in language that

would have put Worthington on notice that there was a

problem requiring a remedy?) We therefore agree with the

district court’s conclusion that Hrobowski “failed to direct

[the district court’s] attention to any facts which would

show that Defendants were negligent in discovering or

addressing racial harassment in the workplace.” 

Furthermore, our examination of Hrobowski’s deposition

transcript suggests that there were no such facts. As to

Murley, Hrobowski claimed to have “talked to Pat Murley

about them [offensive remarks] a couple of times and

he said I brought it on myself.” It is entirely unclear what

Hroboswki said to Murley and when. Hrobowski’s deposition transcript is slightly more informative when it comes
10 No. 03-2167

to Stier. Regarding Stier, Hrobowski testified that,

in January 1997, he and Stier “talked about the language

used, the racial jokes, and how they were an everyday occurrence.” Nothing in this transcript (which, in any event,

it was the responsibility of Hrobowski, and not the district

court, to parse) would allow a reasonable jury to conclude

that Worthington was on notice that a hostile environment

existed in its workplace. Therefore, even if Hrobowski had

applied law to these facts before the district court, he still

would not have been able to establish an issue of material

fact as to Worthington’s negligence.

III.

Although Hrobowski put forth competent evidence regarding the first three elements of his claim of a hostile environment, he failed to establish that there was an issue of

material fact as to the fourth element, a basis upon which to

hold the employer liable. We therefore affirm entry of

summary judgment in Worthington’s favor.

RIPPLE, Circuit Judge, concurring. I join the judgment

and the opinion of the court and write separately only to

elaborate my views on the application of Federal Rule of

Appellate Procedure 28 to the element of employer liability.

Given our preference for a merits disposition whenever

possible, I normally would prefer a less aggressive use of

Federal Rule of Appellate Procedure 28 than the one

employed by the court’s opinion. In his opening brief to this

court, Mr. Hrobowski set out in his “STATEMENT OF THE
No. 03-2167 11

1 See also Johnny Blastoff, Inc. v. Los Angeles Rams Football Co.,

188 F.3d 427, 439 (7th Cir. 1999) (noting that “unsupported

or cursory arguments” not in compliance with Federal Rule of

Appellate Procedure 28(a)(9)(A) will not be considered); Rogers

v. City of Chicago, 320 F.3d 748, 753 n.2 (7th Cir. 2003) (noting that

arguments not properly raised until the reply brief will not be

considered).

FACTS” an extensive elaboration of the facts he deemed

relevant and supported those facts with citations to the

record. Under our rules, however, that is only a first step. A

party must go on to provide a reasoned, if short, application

of those facts to each element of his claim. See Fed. R. App.

P. 28(a)(9)(A) (requiring the “argument” in the appellant’s

opening brief to include “the appellant’s contentions and

the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies”).1

 When

this minimal threshold is satisfied, there is little difficulty

relying on additional facts set forth in the brief’s factual

rendition and referenced to the record. 

 On the element of employer liability, Mr. Hrobowski’s

argument in his brief to the district court merely notes,

in the most conclusory terms and without any record citations, that Mr. Hrobowski was subject to harassing

comments by his supervisors and by coemployees in the

presence of his supervisors. Despite the district court’s

admonitions regarding this failure, the portion of Mr.

Hrobowski’s argument addressing employer liability in his

opening brief to this court is only slightly more developed.

Given this repeated ignoring of the rules, I cannot fault

my colleagues for determining that Mr. Hrobowski’s noncompliance with Federal Rule of Appellate Procedure

28(a)(9)(A) is fatal to his case. 

Mr. Hrobowski’s strongest argument on the employer

liability element rests on the theory of constructive notice.
12 No. 03-2167

See Mason v. S. Illinois Univ. at Carbondale, 233 F.3d 1036,

1046 n.8 (7th Cir. 2000) (“[T]he pervasiveness of coworker

conduct could show the employer’s constructive notice of

the harassment.” (emphasis removed)). However, Mr.

Hrobowski did not so much as mention constructive notice

to the district court, and his “argument” on constructive

notice in his opening brief to this court was nothing more

than another conclusory allegation. See Appellant’s Br. at 14

(“There is no doubt Worthington was, at least, on constructive notice of the hostile environment.”). Accordingly, it is

proper for the court not to consider this basis for liability.

See Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 559 n.4 (7th

Cir. 2003) (“[F]ailure to present [an] argument to the district

court waives it on appeal.”); Campania Mgmt. Co., Inc. v.

Rooks, Pitts & Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002)

(“Perfunctory and undeveloped arguments are waived,

especially when, as here, ‘a party fails to develop the factual

basis of a claim on appeal and, instead, merely draws and

relies upon bare conclusions.’ ” (quoting Spath v. Hayes

Wheels Int’l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000))).

Mr. Hrobowski’s failure to make an argument on this point

in anything other than the most conclusory terms is fatal to

his case. Therefore, I agree that we must affirm the judgment of the district court for lack of a basis for employer

liability.
No. 03-2167 13

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-17-04