United Ass'n of Black Landscapers v. Milwaukee

• Citation: 736 F. Supp. 206
• Decision Date: 14 February 1990
• Docket Number: 88-C-1336.,No. 88-C-1144,88-C-1144
• Parties: The UNITED ASSOCIATION OF BLACK LANDSCAPERS, Eddie Martin, Thomas Wynn, Harold Burris, Lloyd Mayweather, Jose Rosales, Charles Burton, Rufus Powell, John Doe, and Jane Doe, Plaintiffs, v. CITY OF MILWAUKEE, Department of Public Works, Bureau of Forestry of the City of Milwaukee, Robert Skiera, City Forester for the City of Milwaukee, Richard Meyer, Assistant City Forester for the City of Milwaukee, John Norquist, Mayor of the City of Milwaukee, E. Frank Bridges, President, Board of City Service Commissioners of the City of Milwaukee, City Service Commission of the City of Milwaukee, Defendants. Thomas H. WYNN, Jr., Plaintiff, v. CITY OF MILWAUKEE, Department of Public Works of the City of Milwaukee, Robert Skiera, City Forester of the City of Milwaukee and John O. Norquist, Mayor of the City of Milwaukee, Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin

736 F. Supp. 206

The UNITED ASSOCIATION OF BLACK LANDSCAPERS, Eddie Martin, Thomas Wynn, Harold Burris, Lloyd Mayweather, Jose Rosales, Charles Burton, Rufus Powell, John Doe, and Jane Doe, Plaintiffs, v. CITY OF MILWAUKEE, Department of Public Works, Bureau of Forestry of the City of Milwaukee, Robert Skiera, City Forester for the City of Milwaukee, Richard Meyer, Assistant City Forester for the City of Milwaukee, John Norquist, Mayor of the City of Milwaukee, E. Frank Bridges, President, Board of City Service Commissioners of the City of Milwaukee, City Service Commission of the City of Milwaukee, Defendants.

Thomas H. WYNN, Jr., Plaintiff, v. CITY OF MILWAUKEE, Department of Public Works of the City of Milwaukee, Robert Skiera, City Forester of the City of Milwaukee and John O. Norquist, Mayor of the City of Milwaukee, Defendants.

Nos. 88-C-1144, 88-C-1336.

United States District Court, E.D. Wisconsin.

February 14, 1990.

Robert Sutton, Sutton & Kelly, Milwaukee, Wis., for plaintiffs.

Bruce Schrimpf, Asst. City Atty., Milwaukee, Wis., for defendants.

ORDER

CURRAN, District Judge.

The present action was commenced on October 31, 1988, by the United Association of Black Landscapers, an unincorporated group allegedly comprised of black employees of the City of Milwaukee, Bureau of Forestry, and various employees of the Bureau of Forestry against the City of Milwaukee, the Department of Public Works, Bureau of Forestry; Robert Skiera, the Chief Managing Officer and Director of that agency; Richard Meyer, the Assistant City Forester; the City Service Commission of the City of Milwaukee; and the President of its Board, E. Frank Bridges. The complaint purported to state claims under 42 U.S.C. § 1981, § 1983, § 1985(2) and (3), § 1988 and § 2000e-5(f)(2). The complaint was answered on November 22, 1988.

On December 2, 1988, Thomas Wynn, one of the plaintiffs in the federal action commenced an action in the Milwaukee County Circuit Court against the City of Milwaukee, Department of Public Works, Bureau of Forestry of the City of Milwaukee, Robert Skiera and John Norquist. Mr. Wynn was represented by the same attorney who represented him and the other plaintiffs in the federal action. This complaint alleged that the plaintiff was denied promotion due to his race. He further alleged that he had exhausted his administrative remedies and had received his Right to Sue letter. The defendants removed Wynn v. City of Milwaukee to federal court, requesting in the petition for removal that the two cases be considered together.

The court conducted a scheduling conference on January 19, 1989, at which time various deadlines were set for discovery matters and dispositive motions. A final pretrial conference was scheduled for February 28, 1990, and four trial dates were scheduled for March, April, June and August of 1990. On February 6, 1989, the parties stipulated that the two actions could be consolidated and it was so ordered by the court on the following day. On September 5, 1989, the plaintiffs submitted their witness list stating they intended to call the named plaintiffs, Eddie Martin, Thomas Wynn, Harold Burris, Lloyd Mayweather, Jose Rosales, Charles Burton and Rufus Powell in addition to Cora Mason, Helen Renfro, a records custodian and their expert witness, Dr. J.L. Stebbins, a data analyst and statistician.

On November 1, 1989, the defendants filed a voluminous motion for summary judgment. The motion, which is supported by numerous affidavits and twenty-eight depositions, arrived in chambers in a shopping cart. On the day before a response from the plaintiffs was due they filed a motion for an order summarily denying the motion for summary judgment or, in the alternative, modifying the scheduling Order.

The motion to deny the summary judgment motion was denied but the plaintiffs were given a generous extension of time to respond. The four-and-a-half page opposing brief was filed on January 16, 1990, fully two-and-a-half months after the summary judgment motion was filed. Essentially the plaintiffs argued that summary judgment is inappropriate in Title VII cases. The brief string cited the "thirteen definitive" Title VII cases decided by the Supreme Court¹ concluding that "what emerges clearly from a reading of these cases is that the high court does not favor resolution of claims of institutional racial discrimination in employment practices by summary judgment." (Plaintiffs' Brief at page 2) The brief further points out that in most of the cited cases the matter had been fully tried at the district court level. The plaintiffs go on to argue that statistical evidence may be probative of a discriminatory employment practice and where, presumably as here, the claim is that the testing is discriminatory all aspects of the testing procedure may be relevant at trial. They proceed with the proposition that a situation in which the majority of blacks hold lower paying jobs is relevant and that plaintiffs are not required to submit direct evidence of discriminatory intent. From these premises the plaintiffs arrive at the "inescapable conclusion" that summary judgment must be denied.

Without giving the court any guidance in the brief, the plaintiffs have submitted portions of the depositions previously submitted by the defendants of the following black employees, most of whom were not even named as potential witnesses: Rufus Powell, Torrence Brunson, Charles Burton, Dale Robbins, Albert Henry, Charles Ruffin, Jeffrey Smith, Arthur Ellis, William Pulliam, Donald Davis and Johnnie Green. The plaintiffs have also submitted the affidavits of Thomas Wynn, Eddie J. Martin, Jr. and their expert witness, Jack L. Stebbins. Finally, there are three exhibits with a breakdown by race of the Bureau of Forestry for the pay periods of November 6, 1987, January 6 and 7, 1987, and June 6 and 8, 1988.

Despite plaintiffs' protestations to the contrary, court's routinely and properly grant summary judgment to defendants in Title VII cases. In the recent case of International Union, UAW v. Johnson Controls, Inc., 886 F.2d 871 (7th Cir.1989), the Seventh Circuit explained the tasks of the parties and the court as follows:

The allocation of the burden of proof under substantive Title VII law outlined in Wards Cove plays a significant role in summary judgment proceedings of this nature. We have previously recognized that: "Summary judgment is properly entered in favor of a party when the opposing party is unable to make a showing sufficient to prove an essential element of a case on which the opposing party bears the burden of proof." Common v. Williams, 859 F.2d 467, 469 (7th Cir.1988). The Supreme Court explained the reasons for this rule in Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986):

"In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden the proof at trial. In such a situation, there can be `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on all essential element of her case with respect to which she has the burden of proof."

"Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968)). Thus, the question we must address is whether the UAW, which bears the burden of persuasion, has presented evidence sufficient to permit the district court to conclude that Johnson Controls' business necessity defense cannot be factually supported.

4 Our inquiry must be based on the underlying premise that the creation of a record adequate to meet legal challenges is the responsibility of the parties litigating the case. We may neither add nor subtract from the record; we must accept it as it is. Thus, "when confronted with a motion for summary judgment, a party who bears the burden of proof on a particular issue, may not rest on its pleadings, but must affirmatively demonstrate by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard v. Whitley County, REMC, 840 F.2d 405, 410 (7th Cir.1988) (emphasis in original). As we have also noted: "A district court need not scour the record to make the case of a party who does nothing ... Courts will not discover that the movants slighted contrary information if opposing lawyers sit on their haunches; judges may let the adversary system take its course." (emphasis added) Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989).

Id. at 887-88.

The plaintiffs appear to rest their case on the fact that there are no black supervisors in the Boulevard and Landscape Division of the City of Milwaukee Department of Forestry. They also maintain there are proportionately more blacks in the lower paying Boulevard and Landscape...