Pilditch v. Board of Educ. of City of Chicago

• Citation: 3 F.3d 1113
• Decision Date: 21 September 1993
• Docket Number: Nos. 92-3932,92-4050,s. 92-3932
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 1216, 62 Empl. Prac. Dec. P 42,518 Walter E. PILDITCH, Plaintiff-Appellee, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, a Body Corporate and Politic; Fitz Barclay, Jr., Marty Gool, Esther Morgan-Watts, Calvin L. Pearce, and Willia Robinson, as Members of the Morgan Park High School Local School Council; Grady C. Jordan, as District Superintendent, High School District 11, Chicago Board of Education, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1113

3 F.3d 1113

62 Fair Empl.Prac.Cas. (BNA) 1216,

62 Empl. Prac. Dec. P 42,518

Walter E. PILDITCH, Plaintiff-Appellee, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, a Body Corporate and Politic; Fitz Barclay, Jr., Marty Gool, Esther

Morgan-Watts, Calvin L. Pearce, and Willia Robinson, as

Members of the Morgan Park High School Local School Council;

Grady C. Jordan, as District Superintendent, High School

District 11, Chicago Board of Education, Defendants-Appellants.

Nos. 92-3932, 92-4050.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 1993.

Decided Aug. 27, 1993.

Rehearing and Suggestion for Rehearing In Banc

Denied Sept. 21, 1993.

Robert A. Berghoff (argued), Christopher J. Berghoff, Chicago, IL, for plaintiff-appellee.

Ronald S. Samuels (argued), Samuels & Associates, Chicago, IL, for defendants-appellants.

Iris E. Sholder, Karen Gatsis Anderson, Miguel A. Rodriguez, City of Chicago Bd. of Educ., Chicago, IL, for Grady C. Jordan in No. 92-4050.

Before CUMMINGS, POSNER and EASTERBROOK, Circuit Judges.

CUMMINGS, Circuit Judge.

In an effort to give parents and local citizens more control over the public school system, the Illinois Legislature in 1989 passed an education reform measure that created local councils in each school district and invested them with the power to hire and fire principals. 105 ILCS 5/34-2.2. Principals accustomed to job security were stripped of tenure and made to serve under four-year renewable contracts. One casualty of the new system, Walter E. Pilditch, brought this reverse discrimination suit claiming that the only reason he was fired from his position as principal of Morgan Park High School in Chicago was his race; Pilditch is white. He sued five of the ten elected members of the local school council, all minorities, who did not vote to renew his contract when it expired on June 30, 1990, along with the Chicago Board of Education and the district superintendent who chose Pilditch's replacement when the local council could not agree on a candidate.

Plaintiff requested damages based on lost wages and pension benefits under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a)(1), and 42 U.S.C. Secs. 1981 and 1983. Originally Pilditch also sought reinstatement at Morgan Park, but by the time the case was tried before an advisory jury, he had landed a position at another Chicago school; he is now principal at Curie High. The trial judge dismissed the Board of Education from the suit as a matter of law and the jury found that the plaintiff had failed to prove his case against the superintendent, Grady C. Jordan, and Esther Morgan-Watts, a local council member who had voted to oust him. But the jury rendered a verdict in Pilditch's favor on all counts against three council members--Marty Gool, Calvin L. Pearce and Willia Robinson--and he prevailed against a fourth council member, the Rev. Fitz Barclay, Jr., on the Title VII claim. The jury awarded Pilditch $62,085.03 in compensatory damages and levied punitive damages in various small amounts ($1,000 to $3,000) against the four defendants deemed to have violated the principal's civil rights. Judge Hart decided that the jury's verdict was merely advisory because the right to a jury trial in such cases hinges on the Civil Rights Act of 1991, which was passed by Congress after the local council voted to fire Pilditch but before his suit came to trial. Based on our decisions in Banas v. American Airlines, 969 F.2d 477 (1992), and Luddington v. Indiana Bell Tel. Co., 966 F.2d 225 (1992), he concluded that the Act did not apply retroactively--thus Pilditch was not entitled to a jury. Nevertheless, he adopted the jury's findings except that he negated the punitive awards and found that, in addition to the $62,085.03 in lost wages, Pilditch should receive another $92,465, the discounted present value of the pension benefits he forfeited under the council's decision. Although we recently agreed to consider whether the Civil Rights Act of 1991 is retroactive in these circumstances, Mojica v. Gannett Co., Inc., 986 F.2d 1158 (1993) (granting a rehearing en banc), it makes no difference to our resolution of this case whether Pilditch was entitled to a jury or not because, no matter who the factfinder is, this Court is unable to locate in the record sufficient evidence to support the plaintiff's allegation that he was discriminated against because of his race.

We review the district court's findings of facts for clear error and its findings of law de novo. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518. We give mixed findings of facts and law deferential review. FDIC v. Bierman, 2 F.3d 1424, 1430 (7th Cir.1993). Pilditch, a thirty-seven-year veteran of the Board of Education and the principal at Morgan Park from March 1984 through June 1990, lost his job at a February 21, 1990 local council meeting when he could not muster a majority of votes to renew his performance contract for four more years starting that July. Under 105 ILCS 5/34-2.2(c), six of the ten elected members of the council have to vote affirmatively to renew a principal's contract. The council is made up of six parents, two teachers and two members of the community, along with a student who may not vote. At the February 21 meeting, defendants Barclay, Gool, Morgan-Watts and Robinson (all parent members) voted not to renew Pilditch's contract, and defendant Pearce abstained. Morgan-Watts, who was found innocent of the allegations by judge and jury, is Hispanic; the other members who voted to fire Pilditch are black. After dismissing Pilditch, the local council solicited applicants for the vacant position. Roughly thirty-five people applied, including Pilditch, and thirteen were interviewed by most council members. Pilditch made that cut and one more--he was among the three finalists. The other two, Richard Kerr and Earl Bryant, are black. They have comparable experience to Pilditch, both have been principals for some years, and there is no suggestion that either was any less qualified than Pilditch to be principal of Morgan Park. In keeping with the provisions of the Illinois reform act, the local council voted on the three finalists but none of the candidates polled the seven votes required to select a new principal (as opposed to the six required to retain a principal). Thus the three names were submitted to the superintendent, defendant Grady C. Jordan, who gave the nod to Earl Bryant. Jordan is also black.

In the absence of direct evidence, a plaintiff in Title VII, Sec. 1981 and Sec. 1983 actions must abide by the complicated formula first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973), for proving discrimination by indirect evidence. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985); St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, ---------, n. 1, 113 S.Ct. 2742, 2746-2747 n. 1, 125 L.Ed.2d 407 (1993). First the plaintiff must establish by a preponderance of the evidence a prima facie case of racial discrimination. Having done so, it is presumed that the employer has discriminated because of race unless he can articulate some other, legitimate reason for the rejection. If the trier of fact believes the evidence and the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issues of fact remain. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). But if the employer does explain, the presumption shifts again--it is assumed that the employer did not discriminate--and the plaintiff must demonstrate that the employer's stated reason was pretextual (or phony, as we explained in Visser v. Packer Eng'g Assoc., Inc., 924 F.2d 655, 657 (1991)), and ultimately that the employer's real reason for action was discriminatory. Hicks, --- U.S. at ----, 113 S.Ct. at 2749. The McDonnell Douglas framework "simply drops out of the picture" after the employer has offered a legitimate non-discriminatory reason for the firing, Hicks, --- U.S. at ----, 113 S.Ct. at 2749, and the plaintiff retains the ultimate burden of persuading the trier of fact that he was discriminated against because of some illegitimate concern, in this case race, United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Thus showing pretext alone is not sufficient for the plaintiff to carry the day, although it may support an inference that the real reason for the employer's action is discriminatory. Hicks, --- U.S. at ----, 113 S.Ct. at 2749.

We agree with the district court that Pilditch was able to establish a prima facie case of reverse discrimination. Under McDonnell Douglas, a prima facie case is made out by showing that the plaintiff is a member of a racial minority group, that he applied for and was qualified for a job for which the employer was seeking applicants, that he was rejected, and that afterward the position remained open to others with the complainant's qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Pilditch of course is not a member of a racial minority--this case involves alleged discrimination against a white by blacks. But the prima facie elements were never meant to be applied rigidly. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The most likely adaptation of the prima facie case to these unique circumstances, where Pilditch was both fired and then not hired for the vacant position he used to hold, would have him prove that he was meeting the employer's legitimate expectations, was adequately qualified for the job, was fired or not hired, and that the employer found a replacement of a different race. See Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir.1993); Weiss v. Coca-Cola Bottling Co. of Chicago, 990...