McMillian v. Svetanoff

• Decision Date: 14 August 1989
• Docket Number: No. 88-2335,88-2335
• Citation: 878 F.2d 186
• Parties: 50 Fair Empl.Prac.Cas. 137, 50 Empl. Prac. Dec. P 39,103, 58 USLW 2043 Harriett L. McMILLIAN, Plaintiff-Appellant, v. Gerald N. SVETANOFF, Judge, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 186

878 F.2d 186

50 Fair Empl.Prac.Cas. 137,

50 Empl. Prac. Dec. P 39,103, 58 USLW 2043

Harriett L. McMILLIAN, Plaintiff-Appellant, v. Gerald N. SVETANOFF, Judge, Defendant-Appellee.

No. 88-2335.

United States Court of Appeals, Seventh Circuit.

Argued April 11, 1989.

Decided June 6, 1989.

As Amended Aug. 14, 1989.

John O. Moss, Indianapolis, Ind., for plaintiff-appellant.

Arthur Thaddeus Perry, Deputy Atty. Gen., Office of the Atty. Gen., Indianapolis, Ind., for defendant-appellee.

Before BAUER, Chief Judge, FLAUM and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

This case is before us for the second time. The first time we held that Judge Svetanoff was not immune from being sued under 42 U.S.C. Secs. 1981 and 1983 for race discrimination and for violations of the first and fourteenth amendments in connection with the termination of the plaintiff, a court reporter. McMillian v. Svetanoff, 793 F.2d 149 (7th Cir.), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986). On remand, the district court granted summary judgment to Judge Svetanoff on all of Ms. McMillian's claims. Ms. McMillian has appealed that decision and we affirm.

I.

Harriett McMillian was hired by the Superior Court of Lake County, Indiana, as a court reporter in February, 1973 and was assigned to courtroom 4. Ms. McMillian was the first, and only, black person to hold the position of court reporter in Lake County. By all indications, Ms. McMillian's work record was spotless.

In 1981, Gerald Svetanoff (hereinafter "Judge Svetanoff"), a white male, was appointed by Governor Robert D. Orr, a Republican, to be a judge in the Superior Court of Lake County and was assigned to courtroom 4. Judge Svetanoff, upon assuming office, terminated the employment of all of the court personnel associated with courtroom 4 including the plaintiff. ¹ At the time, Ms. McMillian was the only black person assigned to courtroom 4.

In place of the plaintiff, Judge Svetanoff hired Emily Trgovich, a white female, as his court reporter. Judge Svetanoff was familiar with Ms. Trgovich and her work because she had previously worked as a secretary at a law firm with which the judge was associated. Judge Svetanoff, in an interrogatory answer, explained his decision to hire Ms. Trgovich this way:

My present reporter, Emily Trgovich, had the skills required for the position of reporter. Moreover, I was familiar with her work and her skills.... Along with the skills of the job, her personal qualities were well suited to the position. These included an ability to relate well with people and to work cooperatively with others, as well as the ability and disposition to attend to the details of the job without strict supervision: that is, she had a great deal of initiative.

Judge Svetanoff also replaced the other personnel formerly associated with courtroom 4, with the exception of Mary Slafindor, a white woman, who was re-hired for her former position. Other facts which are salient to this appeal will be developed as required.

Shortly after learning that she had been terminated, Ms. McMillian filed this action in federal district court. Ms. McMillian's complaint alleged that her termination violated federal law in three discrete ways. First, she alleged that she was terminated by Judge Svetanoff because of her race in violation of the fourteenth amendment and 42 U.S.C. Sec. 1981. Second, Ms. McMillian claimed that her termination was motivated by her affiliation with the Democratic Party and thus violated her first amendment right to freedom of association. Finally, Ms. McMillian averred that her firing violated the due process clause of the fourteenth amendment because Judge Svetanoff failed to provide her with a pre-termination hearing. The district court granted summary judgment to Judge Svetanoff on each of these claims and Ms. McMillian has appealed.

We review the district court's decision to grant summary judgment de novo and utilize the same standard of decisionmaking as that employed by the district court. Christianson v. Colt Industries Operating Corp., 870 F.2d 1292, 1299 (7th Cir.1989). Thus, we will affirm the grant of summary judgment where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Pro. 56(c). A party faced with a motion for summary judgment 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 for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

We recognize that summary judgment is frequently inappropriate in discrimination cases because intent, and therefore credibility, is often a crucial issue. Nevertheless, we have recently made clear that while we approach the question of summary judgment with "special caution" in discrimination cases, Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988), we will not hesitate to affirm the grant of summary judgment where the plaintiff presents no indication of the defendant's motive or intent to support his or her position. Id.; Freidel v. City of Madison, 832 F.2d 965, 972 (7th Cir.1987). Thus, for example, if a plaintiff in a discrimination case is unable to present any evidence to create a genuine issue as to whether the defendant's articulated reason for the firing is the real reason, then summary judgment will be appropriate.

II.

Ms. McMillian claims that she was terminated from her position as a court reporter because of her race in violation of the fourteenth amendment and Sec. 1981. We analyze such claims by utilizing the well-known shifting burdens test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). That test requires us to first ask whether the plaintiff can establish a prima facie case of discrimination. To establish a prima facie case a plaintiff must show:

"that he or she is a member of a protected class, that he or she is otherwise similarly situated to members of the unprotected class, and that he or she was treated differently from members of the unprotected class."

Collins v. State of Illinois, 830 F.2d 692, 698 (7th Cir.1987) (quoting Ramsey v. American Air Filter Co., 772 F.2d 1303, 1307 (7th Cir.1985)). If the plaintiff is successful in establishing a prima facie case, the burden of production then shifts to the defendant to articulate, through the introduction of admissible evidence, a legitimate non-discriminatory reason for the termination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). Assuming that a reason is articulated, the burden then shifts back to the plaintiff to show that the articulated reason was not the true reason for the termination. Id. at 256, 101 S.Ct. at 1095. The plaintiff can do that by showing either that the articulated reason is false or by showing that a discriminatory reason more likely motivated the defendant. Id. At all times the ultimate burden rests with the plaintiff to show that her termination was the product of racial discrimination. Id. at 253, 101 S.Ct. at 1093.

In this case it is uncontested that Ms. McMillian can successfully establish a prime facie case of race discrimination. Ms. McMillian is black and therefore a member of a protected class. There is no dispute that Ms. McMillian was highly qualified for the job of court reporter and had been performing that job satisfactorily at the time she was fired. Finally, unlike Mary Slafindor, a white person who was re-hired to her former position by Judge Svetanoff, Ms. McMillian was terminated, and not re-hired, upon the start of Judge Svetanoff's tenure. Thus, the burden of production shifted to Judge Svetanoff to articulate a legitimate non-discriminatory reason for the plaintiff's discharge.

In this case, Judge Svetanoff has articulated a legitimate non-discriminatory reason for the plaintiff's discharge. Judge Svetanoff stated, in answer to plaintiff's interrogatories, that he terminated Ms. McMillian because he wished to hire Emily Trgovich, a woman with whom the judge had successfully worked in the past. That explanation is a legitimate reason for plaintiff's termination. An employer, even a public employer such as the judge, is free to choose among qualified candidates so long as that choice is not based on unlawful criteria. Burdine, 450 U.S. at 259, 101 S.Ct. at 1096; Christiansen v. Equitable Life Assurance Soc. of U.S., 767 F.2d 340, 343 (7th Cir.1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 885, 88 L.Ed.2d 920 (1986) (subjective determinations of employer can be a legitimate basis for terminating one employee and hiring someone else). Thus, the burden of production shifted back to Ms. McMillian to prove that this reason was either unworthy of credence or that discriminatory reasons more likely motivated the defendant.

The plaintiff was unable to produce any evidence to rebut Judge Svetanoff's articulated reason for the termination. Ms. McMillian provided no evidence to show either that Judge Svetanoff was not familiar with Ms. Trgovich's work or that Judge Svetanoff and Ms. Trgovich did not actually work well together. Also, the plaintiff failed to produce evidence to show that her termination was actually based on a discriminatory motive. First, Ms. McMillian pointed out that Mary Slafindor was rehired while she was not. Yet it was undisputed that Mary Slafindor was terminated along with the rest of the former staff and was reinstated only because she was the only person to apply for her former position. Second, plaintiff claimed that several previous encounters between Judge Svetanoff and herself evidenced his racial animus. For example, plaintiff alleged that while she was a court reporter and Judge Svetanoff was in private practice, the judge entered courtroom 4 to ask a...