                               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.
                            ____________
        ARGUED MAY 6, 2005—DECIDED AUGUST 19, 2005
                       ____________




    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


*
    Of the Eastern District of Michigan, sitting by designation.
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 Cauca-
sian 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 occur-
rences 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 writ-
ten in graffiti in approximately seventeen locations
throughout the warehouse. Mendenhall and two other em-
ployees (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

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 maga-
zine 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


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).
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 discrimina-
tion 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 hos-
tile 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 re-
moved, 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 estab-
lish 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 pre-
vent 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 retal-
iatory 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 retal-
iation 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 at-
tempted 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 retalia-
tion, 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 rul-
ing.” (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 hap-
    pened 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. How-
    ever, 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 is-
sued 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 doc-
trine, 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 mid-
way 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 employ-
ment 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 subjec-
tively 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 environ-
ment 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 environ-
ment claim. His ruling was incorrect as a matter of law in
this circuit and Mueller conceded as much at oral argu-
ment.
  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 judg-
ment 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 be-
cause Mendenhall had “been fully heard on [the] issue and
there [was] no legally sufficient evidentiary basis for a rea-
sonable 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 al-
though 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 co-
worker 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 inter-
locutory 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
