Kevin S. Davis v. Papa John’s USA, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2021 *
Decided November 5, 2021
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 21‐1735
KEVIN S. DAVIS,
Plaintiff‐Appellant,
v.
PAPA JOHN’S USA, INC., et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:19‐cv‐04396‐JRS‐MG
James R. Sweeney II,
Judge.
O R D E R
Kevin Davis sued Papa John’s USA, his former employer, alleging claims of
discrimination and retaliation based on his race and sex under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e‐2(a)(1). The district court entered summary
judgment for Papa John’s. The judge concluded that Davis presented no evidence of
* 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. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21‐1735 Page 2
racial discrimination or retaliation; as for sex discrimination, the judge found that Davis
failed to exhaust administrative remedies and that, in any event, reasonable jurors
could not find in his favor on that claim. Davis challenges only the ruling on his claim
of sex discrimination, but we affirm the judgment.
Davis was fired from his job as a driver at a Papa John’s pizza restaurant after
two disputes with a shift leader named Cassidy Wheeler. As a shift leader, Wheeler
clocked workers like Davis in and out. The first dispute began when Davis accused
Wheeler and other workers of “eyeballing” him. When they denied it, Davis yelled and
cursed at them. At one point Wheeler put her hand on Davis’s shoulder. She says she
meant it as a calming gesture, but Davis characterizes it as a sexual advance; he pushed
her hand away. The argument continued until Wheeler telephoned an offsite manager,
who told Davis to go home for the day.
One week later Davis and Wheeler argued again. According to Davis, when he
arrived at work, Wheeler demanded that he apologize for calling her and a coworker
“racists” the week before. (Davis is black; Wheeler is white.) But Davis objected,
insisting that he had said no such thing. Wheeler responded that another coworker—a
young woman—had “bigger balls” than Davis and then refused to clock Davis in. Their
manager agreed that Davis must leave, and he did so. (Wheeler swore in a declaration
that she did not recall this second incident, so the judge considered only Davis’s
account from his deposition testimony.)
Davis soon complained to Papa John’s, accusing Wheeler of sexual harassment
during the first dispute. Company investigators concluded that Wheeler’s shoulder
touch did not constitute harassment but did warrant coaching on nonphysical de‐
escalation techniques. Meanwhile, Papa John’s suspended Davis while it investigated
the matter and eventually fired him, citing his “inappropriate” behavior toward
coworkers in the first dispute.
Davis filed a charge with the Equal Employment Opportunity Commission. On
the charge form, he checked only the boxes for racial discrimination and retaliation, not
sex discrimination. In the narrative section, he recounted the two arguments with
Wheeler, concluding, “I believe the above actions were taken against me due to my race
(black) and retaliation.” The EEOC notified Davis of his right to sue.
He then filed this lawsuit asserting, as relevant here, that Wheeler created a
hostile work environment on the basis of sex when she touched his shoulder and

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No. 21‐1735 Page 3
commented on his genitals. Davis also alleged racial discrimination, but he does not
renew that theory on appeal, and so we say no more about it.
After discovery Papa John’s moved for summary judgment. Because Davis did
not respond to the motion, the judge confined himself to the facts recounted in the
motion and exhibits, and we do the same. See Kreg Therapeutics, Inc. v. VitalGo, Inc.,
919 F.3d 405, 411 (7th Cir. 2019). The judge granted the motion for two alternative
reasons. First, Davis’s sexual‐harassment claim was unexhausted—and thus barred—
because he did not include it in his EEOC charge. See Reynolds v. Tangherlini, 737 F.3d
1093, 1099 (7th Cir. 2013). Second, exhaustion aside, reasonable jurors could not find
that the shoulder touch and inappropriate comment constituted severe or pervasive
misconduct. The judge also dismissed any Title VII claim against Wheeler and other
individual defendants because under the statute those workers were not Davis’s
“employer.”
Davis’s appellate brief is difficult to parse, but we discern two arguments: that
the shoulder touch and verbal insult amounted to sexual harassment after all, and that
Davis also suffered sex discrimination when he was sent home in retaliation for
rejecting Wheeler’s supposed sexual advance after he removed her hand from his
shoulder. Yet the brief does not grapple with the judge’s conclusion that Davis’s sexual‐
harassment claim fell outside the scope of his EEOC complaint and was therefore
unexhausted. This failure to address one of two independent rationales for the judge’s
decision amounts to a waiver and is a sufficient reason to affirm the judgment. Reed v.
Freedom Mortg. Corp., 869 F.3d 543, 548 (7th Cir. 2017). And in any event, an isolated
touch on the shoulder and one crude insult are not objectively severe or pervasive
enough to be actionable under Title VII. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
270 (2001); Swyear v. Fare Foods Corp., 911 F.3d 874, 879, 882 (7th Cir. 2018) (concluding
no hostile work environment where a coworker touched the plaintiff’s arm and lower
back and invited her to go skinny dipping). Finally, nothing in the summary‐judgment
record supports a reasonable inference that Wheeler actually made a sexual advance—
let alone that her actions or those of the company were in retaliation for spurning a
sexual advance.
AFFIRMED

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