Allen v. Chicago Transit Authority

• Decision Date: 06 January 2003
• Docket Number: No. 01-2101.,01-2101.
• Parties: Annete M. ALLEN, Shelley S. Burnette, Rahpre Newberry, and Earnest Leonard, Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

317 F.3d 696

Annete M. ALLEN, Shelley S. Burnette, Rahpre Newberry, and Earnest Leonard, Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.

No. 01-2101.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2002.

Decided January 6, 2003.

Rehearing and Rehearing En Banc Denied February 7, 2003.

COPYRIGHT MATERIAL OMITTED

Martin J. Oberman (Argued), Chicago, IL, Carolyn Shapiro (Argued), Miner, Barnhill & Galland, Chicago, IL, for Plaintiffs-Appellants.

Catherine M. Masters (Argued), Schiff, Hardin & Waite, Chicago, IL, for Defendant-Appellee.

Before BAUER, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Four black employees of the Chicago Transit Authority charge racial discrimination (two of the plaintiffs also charge retaliation for complaining about discrimination) by their employer in violation of Title VII and related statutes. The district court granted summary judgment for the defendant.

We begin with the two women, Allen and Burnette, personnel specialists who sought promotion to managerial positions in their department and were passed over in favor first of a white man named Lebron in 1995 and two years later in favor of another white man, named Reilly, who had only recently become a personnel specialist. Lebron's promotion was not within the 300-day statute of limitations for a Title VII claim, 42 U.S.C. § 2000e-5(e)(1), and so the district court held the women's complaint about his being promoted ahead of them to be time-barred. That was an error. Until they were again passed over in favor of a white person, they had no reason to believe that race had played a role, for Lebron unlike Reilly was not a surprise choice. Equitable tolling delays the running of the statute of limitations until the plaintiff by exercise of due diligence should have realized that he had a claim. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1143-44 (7th Cir.1992); Brennan v. Daley, 929 F.2d 346, 349 (7th Cir.1991). That did not occur in this case until Reilly's promotion.

The general manager of the department, Tapling, made the appointments and was the defendant's key witness with regard to the Allen and Burnette claims. Regarding Lebron's promotion, she testified that Allen's lack of a master's degree precluded her from consideration for the job — yet on the interview form Tapling had rated Allen's education "suitable" for the job. Regarding the Reilly promotion, Tapling told investigators from the CTA's affirmative action unit and the Illinois human rights agency that although the two women had far more experience than Reilly, having been personnel specialists for a decade or more and he for just two years, he had more initiative as shown by his having worked overtime on at least 16 days in a two-month period in order to learn a new photo ID computer system, whereas Allen and Burnette were reluctant to work overtime. However, the CTA's time sheets showed that Reilly stayed late on only three days during the two-month period, and all were days on which he had started work late, and that Allen and Burnette put in at least as much extra time as Reilly. Tapling's boss testified that Reilly got the job because he interviewed better than Allen or Burnette — but Tapling testified that there were no interviews.

There is more. Tapling had told the investigators that she had passed over Allen because of too many absences, lack of maturity, and lack of a master's degree (which Reilly had). But at her first deposition she testified that Allen's absences had played no role in her decision; and the CTA's records did not sustain the charge that Allen had unexcused absences. At her second deposition, Tapling backtracked, saying she was no longer confident that absences had not been a factor in her passing over Allen. In a subsequent affidavit, she belatedly accused Allen of excessive absenteeism. Regarding Allen's maturity, she said that once Allen had come crying to her after being abused by another employee — but Allen was not at work on the day of the alleged abuse.

Although Reilly had a master's degree and the women did not, the master's degree was not in human relations but in communications, and the managerial job to which Tapling appointed him did not require a master's degree. Tapling accused Burnette of "theft" for having run up a bill of $140 for personal long-distance calls. But Burnette was not disciplined (she reimbursed the CTA), and another employee who committed the identical "theft" and also was not disciplined for it was promoted.

When a qualified black person is passed over for a promotion in favor of a white, and the employer offers a noninvidious reason that a jury would be free to disregard because the genuineness of the reason has been challenged by substantial evidence, summary judgment for the employer is improper. E.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Traylor v. Brown, 295 F.3d 783, 790 (7th Cir.2002); Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 291-92 (7th Cir.1999); Mills v. Health Care Service Corp. 171 F.3d 450, 458 (7th Cir.1999). Tapling offered noninvidious reasons for promoting Lebron and then Reilly rather than either Allen or Burnette, but a jury would be entitled to find that the reasons she offered were lies. When a witness repeatedly contradicts himself under oath on material matters, and contradicts as well documentary evidence likely to be accurate (the time sheets, for example, whose reliability was attested by several witnesses), the witness's credibility becomes an issue for the jury; it cannot be resolved in a summary judgment proceeding. Perfetti v. First National Bank, 950 F.2d 449, 456 (7th Cir.1991); Cameron v. Frances Slocum Bank & Trust Co., 824 F.2d 570, 575 (7th Cir.1987).

It is not even clear what it would mean to say that the district court was entitled to treat Tapling's testimony as gospel truth — does this mean that Allen's absences played a role in Reilly's promotion, or played no role? Tapling said both things under oath. The insouciance with which the defendant treats Tapling's possibly dishonest testimony is in ironic contrast with its insisting, as we shall see that it does, that plaintiff Leonard's perjury at his deposition should bar his claim altogether.

The district court refused to give any weight to the finding by the CTA's own investigator that Tapling's explanation for Reilly's promotion was not credible. This was another error. The finding was admissible as an admission made by an employee of a party opponent within the scope of his employment, Fed.R.Evid. 801(d)(2)(D); Stagman v. Ryan, 176 F.3d 986, 996 (7th Cir.1999), and as an investigative report of a public agency. Fed.R.Evid. 803(8)(C); Tuohey v. Chicago Park District, 148 F.3d 735, 739-40 (7th Cir.1998). How much weight to give such admissions (for they are evidentiary rather than judicial admissions and hence not binding, id. at 740; see also Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000)) is for the jury to decide, not the judge in ruling on a motion for summary judgment.

So the grant of summary judgment against Allen and Burnette must be reversed, and we move on to Newberry. He was a computer programmer and complains primarily that like Allen and Burnette he was passed over for a promotion in favor first of one white person, Otto, and then of another, Goyal. Otto, however, was promoted only in the sense of being given a higher rank and salary; rather than fill a vacancy, he continued in the same job that he had had before his promotion. For Newberry to have been given Otto's "promotion" would have meant bouncing Otto from a job that he had been performing adequately, indeed with sufficient distinction to warrant a promotion. As for the job that Goyal obtained, Newberry probably failed to show that he was qualified to perform the duties of the job, and certainly failed to show that he was as well qualified as Goyal.

There is no other evidence that the denial of the promotions was racially motivated. It is true that, like Allen and Burnette, Newberry submitted a report by a CTA investigator. But the report is not probative. It was written before the two promotions that Newberry claims he was denied for racial reasons, and it contains no evidence concerning his qualifications for the promotions relative to the qualifications of Otto and Goyal, nor any other evidence bearing on the employer's motivation.

Newberry also claims that he was a victim of harassment. He alleged that the motive behind the harassment was the fact that he had complained about discrimination and on the basis of this allegation the district court ruled that Newberry was charging retaliation and that he could not do this because he had failed to file a complaint of retaliation with the EEOC. Discrimination and retaliation are separate wrongs, as is obvious in cases (which this case is not, however) in which the person retaliated against is not a member of the group that is the target of the alleged discrimination. It is the motive for, rather than the character of, the actions taken against the employee that determines whether the claim is one of retaliation. See Heuer v. Weil-McLain, 203 F.3d 1021, 1024 (7th Cir.2000); Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 26 (1st Cir.2002). If a black employee, such as Newberry, is discriminated against, complains, and then is further discriminated against, the further discrimination being motivated however by the complaint rather than by the employee's race as such, that further discrimination is discrimination against complainers rather than against blacks; for a white who complained would be treated the same way.

The judge thus properly barred Newberry from pressing his claim for retaliation; and Newberry has forfeited...