Mays v. Chicago Sun-Times

• Decision Date: 24 February 1989
• Docket Number: AFL-CI,SUN-TIMES and G,No. 87-3083,No. 2,D,2,87-3083
• Citation: 865 F.2d 134
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: 48 Fair Empl.Prac.Cas. 1425, 49 Fair Empl.Prac.Cas. 288, 48 Empl. Prac. Dec. P 38,577, 57 USLW 2481, 12 Fed.R.Serv.3d 1379 Ronald MAYS, Plaintiff-Appellant, v. CHICAGOraphic Communications Union, Chicago Paper Handlers' & Electrotypers' Localefendants-Appellees.

Page 134

865 F.2d 134

48 Fair Empl.Prac.Cas. 1425,

49 Fair Empl.Prac.Cas. 288,

48 Empl. Prac. Dec. P 38,577, 57 USLW 2481,

12 Fed.R.Serv.3d 1379

Ronald MAYS, Plaintiff-Appellant, v. CHICAGO SUN-TIMES and Graphic Communications Union, Chicago Paper Handlers' & Electrotypers' Local No. 2 AFL-CIO, Defendants-Appellees.

No. 87-3083.

United States Court of Appeals Seventh Circuit.

Argued Sept. 15, 1988.

Decided Jan. 4, 1989.

Rehearing and Rehearing En Banc Denied Feb. 7, 1989.

As Amended Feb. 24, 1989.

L. Stevens Platt, Arnold & Kadjan, Chicago, Ill., for plaintiff-appellant.

Stephen B. Rubin, Asher, Pavalon, Gittler, Greenfield, & Segall, Ltd., Patrick S. Casey, Sidley & Austin, Chicago, Ill., for defendants-appellees.

Before COFFEY, FLAUM and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiff-appellant Ronald Mays appeals from the district court's grant of summary judgment in favor of defendants-appellees, the Chicago Sun-Times ("Sun-Times") and the Graphic Communications Union, Chicago Paper Handlers' & Electrotypers' Local No. 2, AFL-CIO ("Union"). We affirm the district court's decision in all respects, and, pursuant to Rule 38 of the Federal Rules of Appellate Procedure, assess the costs of this appeal against appellant's attorney. In addition, pursuant to Rule 46(c) of the Federal Rules of Appellate Procedure we fine appellant's attorney $1000 for filing a brief with this court containing statements not well grounded in fact or law.

I.

The Chicago Sun-Times publishes a daily metropolitan newspaper. Like most large-scale enterprises, publishing and circulating a metropolitan newspaper depends upon the performance of hundreds of anonymous but essential tasks. One such anonymous but essential task is paper handling. Paper handling involves, inter alia, stripping wrapping off paper rolls, loading the rolls onto dollies and operating a conveyer belt that moves the dollies around the pressroom.

Sun-Times paper handlers are represented by the Union and are employed on both a full-time and a part-time basis. Full-time paper handlers are permanent employees of the Sun-Times and are hired by the newspaper, while part-time paper handlers are assigned to the Sun-Times by the Union during vacation and overload periods. In addition to their other duties, full-time paper handlers, unlike their part-time counterparts, regularly perform a variety of tasks involving the operation of heavy lift-trucks. Consequently, in 1984, the Sun-Times implemented a hiring policy requiring all future full-time paper handlers to have significant lift-truck experience.

Appellant Ronald Mays, a black man, has been a part-time paper handler at the Sun-Times since 1982. In both 1984 and 1985, Mays applied for but failed to obtain a full-time paper handler's position at the Sun-Times. Both positions were ultimately filled by white men who, unlike Mays, possessed significant lift-truck experience.

After being passed over twice for full-time paper handler positions and obtaining a right to sue letter from the Equal Employment Opportunity Commission, Mays filed suit against both the Sun-Times and the Union in state court. The suit alleged that the Sun-Times violated Title VII by basing its hiring decisions on racial considerations; that the Union participated in these decisions; and that the Union failed to adequately represent Mays. The suit was removed to federal court and, in November 1987, the district judge granted summary judgment in favor of both the Sun-Times and the Union on all counts. Mays appeals from this decision.

II.

Rule 56(c) of the Federal Rules of Civil Procedure provides that "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Thus, in order to defeat a motion for summary judgment a party must demonstrate that there is a material factual dispute drawing all reasonable inferences in the light most favorable to the non-movant. Harris Trust v. Edelson, 859 F.2d 553, 556 (7th Cir.1988); Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir.1988). Moreover, "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A.

Appellant's first claim is that the Sun-Times violated Title VII by basing its hiring of full-time paper handlers on racial considerations. In the district court, Mays attempted to prove this charge through both direct and indirect evidence. Appellant's direct evidence consisted of an affiant's allegations that a Sun-Times official with responsibility for hiring full-time paper handlers had made unfavorable remarks about blacks. The affiant, however, could not remember the context in which these remarks were made. Given this lack of context, no reasonable jury evaluating affiant's allegations in the light most favorable to the appellant could find for Mays. Consequently, the district court properly concluded that appellant's direct evidence of racial discrimination was not sufficient to defeat the Sun-Times' motion for summary judgment.

Appellant also attempted to prove his charge against the Sun-Times indirectly. The indirect method of establishing a Title VII violation consists of a series of burden-shifting steps. Initially, a plaintiff must make out a prima facie case of racial discrimination. Establishing a prima facie case requires a showing that (1) plaintiff belongs to a racial minority; (2) plaintiff applied for and was qualified for the available position; (3) plaintiff failed to obtain the position and (4) the job remained open and the employer sought out other applicants of plaintiff's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

Once a plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a legitimate non-discriminatory reason for the particular decision. Id. When the defendant articulates such a reason, the plaintiff must respond by adducing evidence that the ostensibly non-discriminatory explanation is in fact a pretext for discrimination. If the plaintiff fails to adduce sufficient evidence from which a reasonable juror could conclude that "pretext" existed, the district court should enter summary judgment in favor of the defendant. Klein v. Trustees of Indiana University, 766 F.2d 275, 282 (7th Cir.1985).

The district court assumed, albeit reluctantly, that Mays had established a prima facie case of discrimination against the Sun-Times. ¹ The Sun-Times responded by articulating a legitimate non-discriminatory reason for its hiring decisions--that Craig and Stortenbecker, the white men actually hired, both had significant lift-truck experience and thus were better qualified than Mays. At this point, Mays, in order to avoid summary judgment under Klein, had to adduce evidence from which a reasonable juror could conclude that the Sun-Times' non-discriminatory explanation was pretextual.

Mays' pretextual evidence consisted primarily of affidavits filed by two former full-time paper handlers at the Sun-Times, Robert Myers and Lylbum French. ² These affidavits attacked the validity of the Sun-Times' non-discriminatory explanation in two respects. First, the affiants claimed that significant lift-truck experience was not a prerequisite to obtaining a full-time paper handler's position at the Sun-Times. Second, the affiants alleged that Craig and Stortenbecker lacked lift-truck experience and thus were not better qualified than Mays.

Rule 56(e) of the Federal Rules of Civil Procedure provides in pertinent part:

Supporting and opposing affidavits shall be based on personal knowledge.... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment is appropriate.

The district court held that the affidavits submitted by the plaintiff failed to conform to the standards of Rule 56(e) and thus refused to consider the allegations contained therein. As a result, the district court held that plaintiff had failed to rebut the Sun-Times' non-discriminatory explanation, and entered summary judgment under Klein. We agree with this decision.

Affiants' first allegation is based on the fact that they were hired as full-time paper handlers at the Sun-Times without possessing significant lift-truck experience. Myers and French, however, were hired before the Sun-Times implemented its new hiring policy. Thus, their personal experiences were not relevant to the issue of the policy's existence. Moreover, because the affiants' personal experiences formed the basis of their allegations, the district court properly held that the affidavits failed to set forth specific facts demonstrating that there was a genuine issue as to the existence of a hiring policy for full-time paper handlers.

The affidavits also alleged that Craig and Stortenbecker lacked significant lift-truck experience. This allegation was based on statements made by Craig and Stortenbecker to the affiants that cast on doubt their ability to operate heavy lift trucks. Myers and French, however, admitted that they lacked personal knowledge of Craig's and Stortenbecker's prior lift-truck experience. Consequently, the district court properly refused to consider this allegation in evaluating the ...