Von Zuckerstein v. Argonne Nat. Laboratory

• Citation: 984 F.2d 1467
• Decision Date: 07 April 1993
• Docket Number: No. 91-2490,91-2490
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 1210, 60 Empl. Prac. Dec. P 42,023 Ivan VON ZUCKERSTEIN, Dr. Devabhaktuni Ramaswami, Dr. Mohan Jain, and Josip Vresk, Plaintiffs-Appellants, v. ARGONNE NATIONAL LABORATORY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1467

984 F.2d 1467

60 Fair Empl.Prac.Cas. (BNA) 1210,

60 Empl. Prac. Dec. P 42,023

Ivan VON ZUCKERSTEIN, Dr. Devabhaktuni Ramaswami, Dr. Mohan

Jain, and Josip Vresk, Plaintiffs-Appellants, v. ARGONNE NATIONAL LABORATORY, Defendant-Appellee.

No. 91-2490.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 1992.

Decided Jan. 29, 1993.

Rehearing and Rehearing En Banc

Denied April 7, 1993.

Mark L. LeFevour (argued), Callahan, Fitzpatrick, Lakoma & McGlynn, Oak Brook, IL, Charles Barnhill, Jr., Davis, Miner, Barnhill & Galland, Madison, WI, John L. Gubbins, Monfort, WI, for plaintiffs-appellants.

R. Clay Bennett (argued), Michael J. Mueller, Donald J. McNeil, Laurie A. Spieler, Brian J. Fahey, Keck, Mahin & Cate, Chicago, IL, for defendant-appellee.

Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

At the beginning of 1983, Dr. Devabhaktuni Ramaswami, Ivan Von Zuckerstein, Dr. Mohan Jain, and Josip Vresk were all employees of Argonne National Laboratory ("Argonne"). During 1983 and 1984, Argonne initiated lay offs due to reductions in funding. Von Zuckerstein was terminated at the end of 1983. In 1984 Vresk was transferred and reassigned. Jain and Ramaswami were terminated in 1985. Ramaswami, who is Indian by birth, Von Zuckerstein--German, Jain--also Indian, and Vresk--Croat, brought various section 1981 and Title VII claims, alleging that discrimination based on national origin and race motivated these employment decisions. After plaintiffs' argument, Argonne moved for a directed verdict on the section 1981 claims. The district court granted the directed verdict motion under Fed.R.Civ.P. 50 and dismissed the Title VII claims pursuant to Fed.R.Civ.P. 41(b). ¹ We affirm.

I.

Making sense of the various claims brought by the plaintiffs requires some background information. Argonne employs thousands of research scientists and engineers, and each scientist or engineer has responsibilities in two overlapping branches of Argonne's hierarchy--administrative and programmatic. Each scientist or engineer receives a position title that generally describes the functions performed by him or her (e.g., economist). Each job title has three gradations: assistant, full, and senior.

Each Argonne employee is assigned to a division; the divisions relevant to this case are Energy and Environmental Systems ("EES") and Engineering ("ENG"). Every division has a director, one or more associate directors, section heads and supervisors. Division supervisors compile evaluations of employees within their section. During the period at issue in this case, if the senior personnel of a scientist's or engineer's division believed that he or she merited a promotion, the division put together a case and submitted it to Argonne's Personnel Committee A. Among the factors considered in evaluating a request for a promotion are the acknowledged professional standing of the candidate, continued leadership in research, and a noteworthy record of publications.

In addition, each of the scientific and engineering projects at Argonne had its own reporting structure organized through programmatic positions. The person formally responsible to Argonne for the project is designated "principal investigator." A "project manager," who may or may not be the same person as the principal investigator, oversees the project. Furthermore, the principal investigator or project manager may be an assistant, full, or senior scientist or engineer. The project manager is responsible for evaluating all personnel working on the project. A written evaluation of the performance of each scientist or engineer is forwarded to that person's administrative supervisor, who in turn prepares summary evaluations. The effect is that a supervisor from one division may evaluate an employee from another division who is assigned to that supervisor's project.

Dr. Devabhaktuni Ramaswami began his career at Argonne in 1962 as a member of what is now Argonne's Engineering Division. Except for one brief lay off in 1973, Ramaswami continued to work without interruption until the reduction in force initiated in 1983. Completion of one aspect of a reactor upgrade project resulted in a decrease in demand for ENG Division personnel of Ramaswami's skill level, and he was scheduled to be laid off. Rather than being immediately laid off, he received a series of temporary assignments in the EES Division. Prior to his final assignment, Ramaswami elected to take an extended vacation. He was terminated in September, 1985. Although he subsequently applied for three positions after his termination, Ramaswami did not receive an offer of employment.

In 1976, Ivan Von Zuckerstein began working as an assistant economist in Argonne's EES Division. His functional job title was systems application economist. When the EES Division was forced to eliminate a number of staff positions because of funding cutbacks, Von Zuckerstein was terminated in June, 1983. He claims to have applied subsequently for more than fifty unspecified positions at Argonne, but other testimony confirmed only eight applications. He was not rehired.

Dr. Mohan Jain was hired as an assistant mechanical engineer in the EES Division in 1980. Jain's primary responsibilities were in Argonne's Industrial Cogeneration project, for which he served as a principal investigator. After being removed as principal investigator in 1983, he continued to work on the project until his termination in January, 1985. After his termination, Jain applied for a few unspecified positions at the lab but did not receive any job offers.

Josip Vresk began work with Argonne in 1975 as an engineering specialist in the ENG Division. In May, 1981, he was promoted from specialist to full mechanical engineer. In 1984, Vresk's section was relocated from the ENG Division to the Plant Systems Divisions to form the Plant Facilities and Services Division. As part of this reorganization, Vresk's section was divided into several sections, including a Project Management section and Engineering section. Vresk was assigned to the Engineering section. Vresk continues to work at Argonne.

II.

Plaintiffs first contend that the district court denied them their Seventh Amendment right to a jury trial by impermissibly weighing evidence when it ruled on the Rule 50 directed verdict motion. Setting aside for the moment the question of weighing evidence, the prejudice to plaintiffs' Seventh Amendment right apparently lies in foreclosing the jury's opportunity to decide whether discrimination occurred by directing a verdict. While a directed verdict does inevitably preclude a decision by the jury, it certainly does not violate the Seventh Amendment by virtue of that fact alone. On the present facts, if the district court had directed a verdict on plaintiffs' section 1981 claims because it had dismissed their Title VII claims, its directed verdict would then rise to the level of a denial of the Seventh Amendment right to a jury trial. See, e.g., Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 355-57 (7th Cir.1987). In this instance the district court did not decide plaintiffs' Title VII claims prior to their section 1981 claims. Thus, the only prejudice alleged here is the directed verdict itself, which is no prejudice at all.

III.

Plaintiffs further contend that the district court improperly weighed the evidence in deciding the motion for directed verdict. Under our de novo review of the record, this court will affirm if it finds that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); see Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir.1988). The evidence is construed in the light most favorable to the plaintiffs. Unless we find evidence sufficient to sustain a jury verdict in favor of the plaintiffs, we will affirm the decision of the district court. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512; Lytle v. Household Mfg., Inc., 494 U.S. 545, 554, 110 S.Ct. 1331, 1338, 108 L.Ed.2d 504 (1990). While the district court may not resolve conflicts in the testimony or weigh the evidence, it may evaluate evidence at least to the extent of determining whether there is substantial evidence to support the verdict. "[A] mere scintilla of evidence will not suffice." La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir.1984).

A.

As a preliminary matter, it is necessary to sort out what claims plaintiffs were attempting to bring. Plaintiffs alleged discriminatory behavior by Argonne that violates section 1981 and Title VII in the denial of promotion, rehiring, and access to grievance procedures as well as in its lay-off procedure, and discriminatory retaliation and demotion. Section 1981 provides that "[a]ll persons ... shall have the same right ... to make and enforce contracts, ... as is enjoyed by white citizens." 42 U.S.C. § 1981 (1988). In Patterson v. McLean Credit Union, the Supreme Court circumscribed the scope of section 1981 to "the enumerated rights within its express protection, specifically the right to make and enforce contracts." 491 U.S. 164, 181, 109 S.Ct. 2363, 2375, 105 L.Ed.2d 132 (1989). ² Thus, under this narrow reading, only plaintiffs' denial of promotion, failure to rehire, and denial of access to grievance procedures are cognizable under section 1981 as well as Title VII. The lay off, retaliation, and demotion claims fall exclusively under Title VII.

For the section 1981 claims, plaintiffs alleged in their complaint that the discrimination occurred because the plaintiffs were "foreign born." Unfortunately for the plaintiffs, claims founded on that status are not cognizable under section 1981, which is designed to remedy discrimination based on race or ethnicity. ³ Certainly, the line between national origin and race or ethnicity for section 1981 claims...