653 F.3d 582 (7th Cir. 2011), 10-3073, Diaz v. Kraft Foods Global, Inc.

Docket Nº:10-3073.
Citation:653 F.3d 582
Opinion Judge:WOOD, Circuit Judge.
Party Name:Jose DIAZ, Ramon Pe
Attorney:Michael Steigmann, Attorney, Law Offices of Michael Steigmann, Chicago, IL, for Plaintiff-Appellant. Ramon Pe
Judge Panel:Before KANNE, WOOD, and SYKES, Circuit Judges.
Case Date:August 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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653 F.3d 582 (7th Cir. 2011)

Jose DIAZ, Ramon Peña, and Alberto Robles, Plaintiffs-Appellants,


KRAFT FOODS GLOBAL, INC., Defendant-Appellee.

No. 10-3073.

United States Court of Appeals, Seventh Circuit.

August 8, 2011

Argued Feb. 23, 2011.

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Michael Steigmann, Attorney, Law Offices of Michael Steigmann, Chicago, IL, for Plaintiff-Appellant.

Ramon Peña (argued), Chicago, IL, pro se.

Mary M. Moore, Christy E. Phanthavong (argued), Attorneys, Bryan Cave, Chicago, IL, for Defendant-Appellee.

Before KANNE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

After Kraft Foods announced a plan in 2008 to outsource many positions at its Tech Center located in Glenview, Illinois, it arranged for the new company to accept applications from Kraft employees who were about to lose their jobs. This case arises from the fallout of that decision. Two of the targeted employees, Jose Diaz and Ramon Peña, chose to apply for positions with Kraft that opened up around that time, rather than pursuing employment with the new vendor. When Kraft did not hire either one, their employment with the company terminated. A third employee, Alberto Robles, stayed with Kraft, but he believes that since 2001 Kraft has paid him less than he deserves because it has never promoted him from a " grade 2" to a " grade 3" position. The plaintiffs attribute these adverse employment actions to their supervisor, Peter

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Michalec, who they say is biased against Hispanics. The district court concluded that the plaintiffs failed to create a triable issue on whether racial animus motivated any of Kraft's actions and granted summary judgment for the defendant. We find that the district court improperly discounted the plaintiffs' strongest evidence and erred in its legal analysis of Diaz and Peña's failure-to-hire claims, but that it properly granted summary judgment on Robles's disparate pay claim. Therefore, we reverse in part and affirm in part.


Kraft prevailed on summary judgment, and so we recount the facts in the light most favorable to the plaintiffs while noting disputes where relevant. Diaz's employment at Kraft began in 1990, and for nine years he was assigned to the sanitation and janitorial departments. In 1999, Diaz transferred to the shipping department, where he worked until he lost his job on November 15, 2008. Peña began in Kraft's shipping department as a part-time employee in 2000. In 2006, he became a full-time employee, staying in the position until he lost his job on the same day as Diaz. Peña and Diaz were hourly employees throughout their tenure with Kraft. Robles worked in the sanitation and janitorial departments as an hourly employee from 1987 to 2001. In June 2001, he became a senior technician in the support services department; this was the salaried position that he held at the time of this appeal.

In the proceedings below, two additional plaintiffs, Betty Flores and Robert Vela, were parties to this lawsuit. Flores defeated Kraft's motion for summary judgment and eventually settled her claim. Vela has not appealed. As will soon become clear, the evidence Flores marshaled to defeat Kraft's summary judgment motion remains relevant to this case.

The conduct of one Kraft supervisor, Peter Michalec, gives rise to this lawsuit. Michalec became the shipping supervisor in 2000, and starting in 2005 he also supervised the support services department. In 2008, once Kraft outsourced the shipping department where Peña and Diaz worked, Michalec became the supervisor of Pilot Plant Services, an entity comprised of the building operations group, the sanitation department, and the support services department. Michalec was in charge of hiring for the positions Diaz and Peña sought, and he had the authority to increase Robles's pay.

The plaintiffs complain that Michalec would send Flores, Diaz, and Peña outside to scrub parking lots, clean sewers, and tend to other disliked tasks " as often as possible" during the cold winter months, but he did not assign non-Hispanic employees to similar labors. They also assert that Michalec followed the three around during the day, timing their breaks and scrutinizing their work, without subjecting non-Hispanic workers to the same treatment. Additionally, the plaintiffs identify statements made by Michalec over the years that in their view illustrate his animus against Hispanics. Robles testified that Michalec said in 1999 that he got his job because he (Michalec) was white; Michalec called Robles a " gold-digger" when he asked for a raise; Michalec said " I'm white and I'm right" ; and he yelled, " Get the hell out of my office. Go die somewhere else," when Robles was having a heart attack in 2005. Carlos Casalan, another former employee, asserts that " on numerous occasions" Michalec said that he did not like Spanish people and referred to Hispanics as " dummies" and " stupid."

The real trouble, however, surfaced when Diaz and Peña tried to get different jobs at Kraft around the time of the outsourcing. Kraft has a posting process to

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fill available jobs that usually proceeds as follows. A manager initiates the search by sending a potential job posting to the human resources department, which, after approval, sends the posting to the talent acquisition department. Talent acquisition puts the posting on Kraft's in-house website, distributes it internally on paper, or takes both actions. On occasion, Kraft also posts a sign-up sheet to permit interested employees to indicate their interest in a position.

In July 2008, Kraft posted a sign-up sheet for a single senior technician position. Diaz, Peña, and two other Hispanic employees, along with two African-American employees, signed up to be considered for the positions. Peña also sent an application and his resume to human resources. Shortly after the sign-up sheet was posted, somebody (nobody knows who) crossed off the names of the two African-American employees, leaving only four Hispanic employees in the applicant pool. Kraft then decided to freeze the hiring for that position. According to Kraft, the company knew that outsourcing was on the horizon and wanted to wait until the announcement was made so that more...

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