Artis v. Hitachi Zosen Clearing, Inc.

• Decision Date: 18 August 1992
• Docket Number: 90-3282 and 90-3369,Nos. 90-3281,s. 90-3281
• Citation: 967 F.2d 1132
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 445, 59 Empl. Prac. Dec. P 41,617, 23 Fed.R.Serv.3d 67 Luther ARTIS, Plaintiff-Appellee, Cross-Appellant, v. HITACHI ZOSEN CLEARING, INCORPORATED, et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1132

967 F.2d 1132

59 Fair Empl.Prac.Cas. (BNA) 445,

59 Empl. Prac. Dec. P 41,617, 23 Fed.R.Serv.3d 67

Luther ARTIS, Plaintiff-Appellee, Cross-Appellant, v. HITACHI ZOSEN CLEARING, INCORPORATED, et al Defendants-Appellants, Cross-Appellees.

Nos. 90-3281, 90-3282 and 90-3369.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1991.

Decided July 9, 1992.

As Amended on Denial of Rehearing and

Rehearing En Banc Aug. 18, 1992.

James R. Potter, Londrigan, Potter & Randle, Springfield, Ill., Joanne Kinoy (argued) and Miriam N. Geraghty, Kinoy, Taren, Geraghty & Potter, Chicago, Ill., for Luther Artis.

Thomas J. Piskorski, Elise A. Elconin, Marian C. Haney (argued), Seyfarth, Shaw, Fairweather & Geraldson, and William A. Widmer, III, Carmell, Charone, Widmer, Mathews & Moss, Chicago, Ill., for Hitachi Zosen Clearing, Inc.

Max G. Brittain, Jr. and John J. Murphy, Jr., Kovar, Nelson, Brittain, Sledz & Morris, Chicago, Ill., for U.S. Industry, Inc.

Before CUDAHY and MANION, Circuit Judges, and REYNOLDS, Senior District Judge. ^*

CUDAHY, Circuit Judge.

Luther Artis is a journeyman engine lathe operator. In 1982 U.S. Industries laid him off from his job in its Clearing division, as it had several times before during Artis' approximately 24 years with the company. As the most senior lathe operator on layoff, Artis expected to be the first to be recalled when work picked up. In 1984, however, he discovered that other lathe operators had been recalled to work ahead of him, although they had less seniority. Artis is black, the other lathe operators are white.

Artis filed charges of racial discrimination with the Illinois Department of Human Rights (IDHR) and with the Equal Employment Opportunity Commission (EEOC). Both agencies declined to pursue the charges. In 1985, Artis sued his erstwhile employer ("Clearing" or "the company") ¹ and the local branch of the International Association of Machinists and Aerospace Workers under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (1988), and under 42 U.S.C. § 1981 (1988). He claimed that Clearing discriminated against him on the basis of his race in refusing to train him to use a particular kind of lathe and in failing to recall him to work in order of seniority. Artis also claimed that the company failed to recall him in retaliation for a discrimination charge he filed in 1971. The union, Artis alleged, acquiesced in Clearing's conduct.

Procedural skirmishing followed. The district court awarded summary judgment for the union on all counts and summary judgment for Clearing on the retaliation claim, decisions that Artis has not appealed. The court also dismissed the failure to train claim under section 1981 for failure to state a claim. Artis has not appealed this decision either. The court then held a joint bench and jury trial: the failure to recall claim went to the jury under section 1981, and both the failure to recall and failure to train claims were tried to the judge under Title VII.

The jury found for Artis and awarded compensatory and punitive damages. After the trial, the district court reconsidered its original decision to allow the failure to recall claim to go to the jury under section 1981. The court decided, in light of this court's decision in McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991), that to allege a failure to recall does not state a claim under section 1981 and vacated the jury's verdict. The court also found for Clearing on Artis' Title VII failure to train claim. Nonetheless, the court found for Artis on his Title VII failure to recall claim and awarded reinstatement, backpay, prejudgment interest, attorney's fees (with a 1.25 multiplier) and costs.

Clearing appeals from the judgment under Title VII, claiming that there was insufficient evidence, that the judge improperly relied on a vacated jury verdict and that, in any event, the verdict of the jury was tainted by numerous trial errors. Artis cross-appeals, arguing that failure to recall is a violation of section 1981 and that the jury's verdict should be reinstated. We affirm in all respects.

I.

The proceedings below took five years to resolve. The underlying dispute took four years to develop. To avoid confusion, we reserve discussion of many of the significant details of this complex case until later in the opinion and present only a brief summary of events here.

In 1959 Artis started work at Clearing as a janitor. He slowly rose through the ranks, and after completing a training program, became an engine lathe operator in 1967. He was an apprentice lathe operator for several years and then became a journeyman in 1971 under a settlement agreement with Clearing after he filed a complaint with the EEOC.

After 1971, Artis was laid off a few times and duly called back to work in order of seniority under a collective bargaining agreement. In November 1982, Artis was laid off again, along with most of the other lathe operators, all of whom are white. He used his seniority rights to "bump down" into an assembler helper position, but was laid off from that position in January 1983. Thereafter, Artis worked intermittently as a Pinkerton's security guard. In February 1983, Clearing offered to recall Artis to the assembler helper position from which he had been laid off the month before. After making sure that refusal would not affect his right to be recalled to a lathe operator position, Artis turned this offer down. After turning down the offer Artis continued to work for Pinkerton's until, quite recently, he found another job as a lathe operator.

In January 1983, while Artis was still working as an assembler helper, Larry Hale, the Superintendent of the Machine Department, decided that he needed someone to do work on a Poreba lathe, a Polish machine with somewhat different controls than an American lathe. First, Hale asked the three lathe operators remaining on the job to do the work, although none of them had worked on the Poreba before. When all three refused he recalled lathe operators who had experience on the Poreba, first Stanley Glowacki and then John McDonnell. Hale recalled Glowacki and McDonnell in order of their seniority, ² but passed over Artis and several white lathe operators who had greater seniority, but no Poreba experience.

In May 1984, Artis returned to the Machine Department for the first time in order to pick up some tools he had left behind. It was at this point that he first saw Glowacki and McDonnell working in the shop and realized that the company was not recalling lathe operators in strict order of seniority. He complained to the union the same day and within five months filed charges with the IDHR and the EEOC.

We turn to plaintiff's cross-appeal first.

II.

In McKnight, a panel of this court held that a failure to recall on account of race is not a violation of 42 U.S.C. § 1981. 908 F.2d at 109-10. Nonetheless, since the court's holding was in the alternative and the author of that opinion expressed some doubt as to its correctness, id. at 110, we revisit the issue briefly.

Section 1981 provides that "[a]ll persons ... shall have the same right ... to make and enforce contracts, ... as is enjoyed by white citizens...." In Patterson v. McLean Credit Union, the Supreme Court sharply limited the application of section 1981 to "the enumerated rights within its express protection." 491 U.S. 164, 181, 109 S.Ct. 2363, 2375, 105 L.Ed.2d 132 (1989). The question then is whether a company's failure to recall on the basis of race is more like a refusal to make a new contract, which is a violation of section 1981, or more like a breach of contract, which is not.

Artis argues that his old job ended when he was laid off and that Clearing refused to hire him anew. But the layoff did not cut off all of Artis' rights. Indeed, his seniority rights under the collective bargaining agreement are a central component of his affirmative case. Artis argues that a collective bargaining agreement does not contemplate that any particular individual has a right to employment, citing J.I. Case Co. v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). But by his actions and his pleadings Artis demonstrates that he did think he had a right to return to his old job. Recall would not have established a "new employment relation" with Clearing. McKnight, 908 F.2d at 109. The district court properly dismissed Artis' section 1981 claim. ³

III.

We turn next to the district court's treatment of the vacated jury verdict. The first step of the analysis requires us to determine what the district court actually did with the verdict. Clearing argues that Judge Moran expressed disagreement with the jury verdict but felt bound to follow it even though it had been vacated. Further, the company argues that the judge failed to make findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). Artis takes a different view. He believes that Judge Moran agreed with the jury's verdict. Further, he argues that the court did go through the motions that Rule 52(a) requires.

Not surprisingly, the truth lies somewhere in between. At no point did Judge Moran ever express his agreement or disagreement with the jury's verdict other than to rule that it was supported by the evidence. Judge Moran did make one finding that appears to support the jury verdict. In entering judgment on the Title VII failure to train claim, the judge credited the testimony of Richard Michaels, a machine shop foreman, who testified that he had offered Artis overtime work on the Poreba in 1981. Memorandum and Order at 1-2 (March 21, 1990) (hereinafter March Mem.). "Paradoxically," the judge observed, this testimony supported the failure to recall claim: if Clearing was offering Poreba work without regard to prior experience (and with regard to seniority) in 1981, its 1983 decision to recall...