916 F.2d 1261 (7th Cir. 1990), 90-1430, United Ass'n of Black Landscapers v. City of Milwaukee

Docket Nº:90-1430.
Citation:916 F.2d 1261
Party Name:UNITED ASSOCIATION OF BLACK LANDSCAPERS, Eddie Martin, Thomas H. Wynn, Jr., Harold Burris, Lloyd Mayweather, Jose Rosales, Charles Burton, Rufus Powell, John Doe, and Jane Doe, Plaintiffs- Appellants, v. CITY OF MILWAUKEE, Department of Public Works, Bureau of Forestry, of the City of Milwaukee, Robert Skiera, City Forester for the City of Milwauke
Case Date:October 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1261

916 F.2d 1261 (7th Cir. 1990)


Thomas H. Wynn, Jr., Harold Burris, Lloyd

Mayweather, Jose Rosales, Charles

Burton, Rufus Powell, John

Doe, and Jane Doe,




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 for the City of Milwaukee, E. Frank Bridges,

President, Board of City Service Commissioners of the City

of Milwaukee, and City Service Commission of the City of

Milwaukee, Defendants-Appellees.

No. 90-1430.

United States Court of Appeals, Seventh Circuit

October 29, 1990

Argued July 11, 1990.

Page 1262

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

Bruce Schrimpf, Office of the City Atty., Milwaukee, Wis., for defendants-appellees.

Before WOOD, Jr., MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

Eddie Martin, Thomas Wynn, Jr., and other named and unnamed plaintiffs brought suit individually and as a class against the City of Milwaukee, the City's Bureau of Forestry, and various city employees and agencies, alleging racial discrimination in job promotion and transfer in violation of Title VII, section 1981 and section 1983. The district court, 736 F.Supp. 206, entered summary judgment in favor of the defendants, and the plaintiffs appeal. We affirm.


In the original complaint filed in federal district court, the plaintiffs alleged that the defendants had discriminated against them in promotions, salary, and hiring. Plaintiffs sought to represent a class of black employees of the Bureau of Forestry as well as individual employees of the Bureau. The complaint alleged that the Bureau intentionally restricted black employees to laborer positions and failed to promote qualified blacks to the supervisory ranks. Specifically, plaintiffs alleged that Eddie Martin, a twenty-eight-year employee of the Bureau, and other individual blacks with similar qualifications, had been repeatedly denied a promotion to supervisor. At the same time, it was alleged that less-qualified whites had been placed in the available supervisory positions. Plaintiffs also alleged that the jobs in comparable divisions of the Bureau filled predominantly by whites were paid higher salaries than those positions filled predominantly by blacks.

A second complaint was filed in state court by Thomas Wynn, Jr., one of the plaintiffs in the federal lawsuit. Wynn held agronomy and horticulture degrees from Tuskegee University and was employed in a nonsupervisory position with the Bureau. He alleged that he became eligible for promotion, took the promotion examination, scored extremely high, but was denied the promotion. He alleged that he was denied the supervisor's position because of his race. Wynn's state court suit was removed to federal court and later consolidated with the first suit.

In addition to the City of Milwaukee, Mayor John Norquist, and the Bureau of Forestry, the defendants also included:

Page 1263

Robert Skiera, the City Forester and head of the Bureau; Richard Meyer, the Assistant City Forester; the Milwaukee City Services Commission, an agency responsible for fair employment practices; and E. Frank Bridges, the President of the City Services Commission.

After the two cases were consolidated, the defendants filed a motion for summary judgment, attaching the depositions and affidavits of numerous witnesses. Among those deposed were Martin and Wynn; Martin essentially reiterated the facts that formed the basis of the first complaint, while Wynn made additional allegations regarding his discrimination claim. The defendants also submitted the affidavit of an expert witness, Dr. David Friedland, who determined that the employment figures showing exclusively white supervisors in the Bureau failed conclusively to demonstrate disparate impact. According to Friedland, because so few blacks had applied for these positions over the years, any disparate impact analysis could be uncertain because it would not produce statistically significant correlations.

Plaintiffs filed a cursory response to the summary judgment motion. 1 In their counter-motion, plaintiffs argued generally that summary judgment was a disfavored means of resolving race discrimination suits, and that they had made a showing sufficient to establish disputed issues of material fact, particularly with respect to the existence of statistical evidence of race discrimination. Despite defendants' strongly supported motion, plaintiffs apparently did not depose any witnesses for no deposition transcripts were attached to their response. Instead, plaintiffs attached the affidavits of Martin and Wynn, and an affidavit from their own statistical expert that called into question the defendants' statistical analysis.

In his affidavit, Martin stated that he had witnessed during his twenty-eight years of employment that the Bureau's management relegated blacks to the lowest paying jobs, denied blacks well-deserved promotions, used subjective testing procedures to disqualify blacks from certain positions, and under-compensated positions that had predominantly black employees. He also alleged that he had attempted to secure a passing score on the supervisor's test three or four times, but "was failed" each time.

Wynn stated in his affidavit that he had taken the supervisor's test in October 1987 and had placed second in the city on the eligibility list. This test was nullified, however, and Wynn stated that he was forced to re-take the written exam and submit to a "subjective" oral examination as well. Wynn stated that during the oral examination he was interviewed by people who "had nothing to do with the Bureau of Forestry and one of the persons who interviewed me was a past enemy of my father." After the second test, Wynn stated that he was placed twentieth on the eligibility list.

Plaintiffs' expert, Dr. Jack Stebbins, stated in his affidavit that Friedland's statistical analysis was subject to criticism. Stebbins did not perform his own independent analysis; he restricted his comments to a critique of Friedland's study. For example, Stebbins noted that although insufficient data existed to support a precise analysis of annual employment figures, this problem was eliminated if the employment figures from two or more years were aggregated. When this was done, according to Stebbins, the figures showed a statistically significant disparate impact on blacks with respect to the supervisory positions with the Bureau. We note, however, that Friedland did not aggregate employment figures in his analysis because he felt it was impossible to determine whether one minority employee represented numerous applications over the period of years. According

Page 1264

to Friedland, repeated applications by the same black employee (or any employee for that matter) would render the analysis inaccurate.

The district court entered summary judgment in favor of the defendants. Relying on Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), the judge held that, contrary to plaintiffs' assertions, it was proper to grant summary judgment in discrimination cases where, as here, the plaintiff failed to establish a prima facie case of disparate impact. According to the court, plaintiffs failed to establish the existence of the causal link between the employer's employment practices and the fact that blacks were under-represented in certain positions within the workforce. As to Wynn's individual claim, the court concluded that Wynn failed to establish the existence of a genuine issue of material fact with respect to the defendants' decision not to promote him to supervisor.


On appeal, plaintiffs argue that the district court prematurely granted summary judgment for the defendants. They again contend that summary judgment is inappropriate in discrimination cases, claiming that "the traditional resolution of such lawsuits has been trial and decision on the merits." However, as an en banc panel of this court held in International Union, UAW v. Johnson Controls, 886 F.2d 871, 887-88 (7th Cir.1989), cert. granted, --- U.S. ----, 110 S.Ct. 1522, 108 L.Ed.2d 762 (1990),

[t]he allocation of the burden of proof under substantive Title VII law ... plays a significant role in summary judgment proceedings.... "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." Commons v. Williams, 859 F.2d 467, 469 (7th Cir.1988).... "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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1988) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) ].

Thus, on each of the claims advanced in their consolidated suit, plaintiffs were required to make a showing sufficient to prove the elements of their claims. If they failed to make a sufficient showing, summary judgment was properly entered against them.

  1. Disparate Impact

    The plaintiffs sought to proceed on their class action claim under a disparate impact theory of race discrimination. They alleged, and the defendants admitted, that no black had ever served as a supervisor in the Bureau. It is clear that plaintiffs may use properly prepared statistical evidence to help establish a prima facie case of disparate impact. Wards Cove, 109 S.Ct. at 2121. We need not decide whether plaintiffs established this...

To continue reading