Anderson v. United Parcel Service

• Decision Date: 05 October 1990
• Docket Number: No. 89-3422,89-3422
• Citation: 915 F.2d 313
• Parties: 55 Fair Empl.Prac.Cas. 532, 54 Empl. Prac. Dec. P 40,292, 17 Fed.R.Serv.3d 864 Nelison ANDERSON, Harold Davis, David Cain, James Heflin, Ernest Vernon, and Jesse Reason, Plaintiffs-Appellants, v. UNITED PARCEL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 313

915 F.2d 313

55 Fair Empl.Prac.Cas. 532,

54 Empl. Prac. Dec. P 40,292, 17 Fed.R.Serv.3d 864

Nelison ANDERSON, Harold Davis, David Cain, James Heflin, Ernest Vernon, and Jesse Reason, Plaintiffs-Appellants, v. UNITED PARCEL SERVICE, Defendant-Appellee.

No. 89-3422.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1990.

Decided Oct. 5, 1990.

MaNina M. Harper; Lewis Myers, Jr., James Childs, Jr., Childs, Myers & Willis; and Calvita J. Frederick, Chicago, Ill., for plaintiffs-appellants.

Steven H. Adelman, John A. McDonald, Carla J. Rozycki, and Linda R. Winter, Keck, Mahin & Cate, Chicago, Ill., for defendant-appellee.

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

HARINGTON WOOD, Jr., Circuit Judge.

"Contumacious--perverse in resisting authority, stubbornly disobedient." ¹ That is the word that the district judge used to describe the conduct of the plaintiffs and their attorneys. Because we cannot say that the district court abused its discretion in dismissing the plaintiffs' suit, we affirm.

The plaintiffs are "supervisors" at United Parcel Service, more commonly known as "UPS." The plaintiffs desire to become UPS "managers," but assert that the company has passed them over for promotion because of their race. At the district court, the parties hotly contested whether there was any real distinction between "managers" and "supervisors," an issue not relevant to our disposition of the appeal.

On December 19, 1987, two of the plaintiffs filed a complaint alleging racial discrimination in violation of 42 U.S.C. Sec. 1981. Four more plaintiffs were added through an amended complaint on May 19, 1988. One of the four new plaintiffs had a slightly different theory of liability: he sued under Title VII for what he claimed was a racially motivated suspension from work.

After the filing of the complaint, this case has been marked by the plaintiffs' dilatory tactics. More often than not, the relationship between opposing counsel could be described as acrimonious; at one point, the plaintiffs' counsel even accused the defendant's counsel of racism. Having reviewed the record, it would be impossible for us to recapture the district court's frustrations with the plaintiffs in a short narrative, but we will try to hit the highlights.

To begin with, the plaintiffs' first set of interrogatory answers were due by June 13, 1988, and at a status hearing on June 22, 1988, they still had not answered. After a deadline for a second set of interrogatory answers came and went, UPS had to resort to a motion to compel discovery and was awarded $160 for its costs in bringing the motion.

Next on the agenda was the preparation of a pretrial order. The district court, on December 22, 1988, had ordered both parties to file a joint final pretrial order by February 17, 1989. A pretrial order, however, was prepared entirely by UPS, prompting the company to move for a dismissal on February 16, 1989, for failure to abide by pretrial procedures. The plaintiffs eventually tried to prepare their own pretrial order, but ignored the local court rules in the process. After the court and opposing counsel pointed out the deficiencies in the plaintiffs' pretrial order, the plaintiffs sought leave to file a revised version. It took a pretrial conference with the district court before the parties finally filed an agreed pretrial order on March 6, 1989--the date originally slated for trial. UPS's motion to dismiss continued under the court's advisement.

The parties began to enter into settlement discussions, but UPS found the negotiating difficult. The two attorneys for the various plaintiffs could not agree which of the plaintiffs they each represented. At a hearing attended by the plaintiffs themselves, the district court was able to straighten out the representation mess. The district court then admonished both of the plaintiffs' attorneys for their delays. After listening to a United States district judge lecture their chosen counsel on the necessity for promptness and cooperation, the individual plaintiffs should have been aware of the peril that further delay would bring.

Still, the problems continued. Because of the withdrawal of two plaintiffs, the severance for trial of the Title VII claim, two motions for summary judgment, and the Supreme Court's decision in Patterson v. McLean Credit Union, --- U.S. ----, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), a revision was necessary to the previous pretrial order. The district court twice at the same hearing told the plaintiffs' counsel, "I want a new pretrial order done in accordance with the rules, initiated by you." The plaintiffs inventively interpreted this statement to mean that they could rely on their previous pretrial order and avoid filing a new one. Also, the plaintiffs held the risky belief, contrary to the district judge's conclusion, that a revised pretrial order was unnecessary. See Godlove v. Bamberger, Foreman, Oswald & Hahn, 903 F.2d 1145, 1149 (7th Cir.1990). At this time, UPS reiterated its motion that the plaintiffs' case be dismissed for failure to comply with pretrial procedures.

UPS had previously filed a motion for summary judgment with a supporting brief and statement of uncontested facts in compliance with local court rules. The plaintiffs then sought and received an extension of time to file their response, but the section 1981 plaintiffs still managed to miss the extended deadline by four days, with the Title VII plaintiff taking an additional eight days to respond. Neither the section 1981 plaintiffs' nor the Title VII plaintiff's response contained citations to the record, supporting materials, or a response to the statement of uncontested facts. On September 19, 1989, the district court gave the plaintiffs until September 22 to add appropriate references to the record.

On September 22, 1989, only the Title VII plaintiff complied with the district court's order, but even his amended response needed to be superseded five days later by a second amended response, filed without leave of the court. The section 1981 plaintiffs did not even attempt to file an amended response until September 28, 1989, at which time they merely filed excerpts of their answers to interrogatories and abstracts of depositions, without amending their memorandum to refer to these materials. At no time did the section 1981 plaintiffs or the Title VII plaintiff comply with the local court rules by filing a response to UPS's statement of uncontested facts.

The district court then granted UPS's summary judgment motion but only as to the section 1981 plaintiffs and mainly on the strength of the Supreme Court's Patterson decision. For the Title VII plaintiff, the district court believed that his deposition testimony raised a triable issue of fact as to whether UPS acted with racial motivations in suspending him. As an alternative basis for dismissal for the section 1981 plaintiffs and as the sole grounds for dismissing the Title VII plaintiff, the district court relied on its supervisory powers, codified in FED.R.CIV.P. 16(f) & 37(b), to sanction parties for dilatory conduct. We need go no further than the district court's decision that the plaintiffs' contumacious conduct warranted dismissal of their action.

It is axiomatic that we review the district court's decision only for an abuse of discretion. See, e.g., Godlove, 903 F.2d at 1148; Lowe v. City of E. Chicago, 897 F.2d 272, 274 (7th Cir.1990); G. Heileman Brewing Co....