Bailey v. Northern Indiana Public Service Co.

• Decision Date: 09 August 1990
• Docket Number: No. 88-3228,88-3228
• Citation: 910 F.2d 406
• Parties: 54 Fair Empl.Prac.Cas. 791, 54 Empl. Prac. Dec. P 40,132, 17 Fed.R.Serv.3d 878 Bennie BAILEY, Plaintiff-Appellee, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 406

910 F.2d 406

54 Fair Empl.Prac.Cas. 791,

54 Empl. Prac. Dec. P 40,132, 17 Fed.R.Serv.3d 878

Bennie BAILEY, Plaintiff-Appellee, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant-Appellant.

No. 88-3228.

United States Court of Appeals Seventh Circuit.

Argued Nov. 29, 1989.

Decided Aug. 9, 1990.

Voyle A. Glover, Schererville, Ind., James R. Oates, John Davis, Merrillville, Ind., for plaintiff-appellee.

David C. Jensen, Paul A. Rake, Sherry L. Clarke, Maureen J. Grimmer, Peter L. Hatton, Eichhorn, Eichhorn & Link, Hammond, Ind., for defendant-appellant.

Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

BAUER, Chief Judge.

Bennie Bailey, a black male, sued his employer, Northern Indiana Public Service Company ("NIPSCO"), for racial discrimination and retaliatory treatment. (He actually sued NIPSCO twice, but more on that later.) In late August/early September, 1988, some of Bailey's claims were tried to a jury, which found in his favor and awarded him compensatory and punitive damages totalling $35,000. In this appeal, NIPSCO contends that the jury's general verdict was fatally tainted by several claims which were legally barred and/or insufficiently proved, and that therefore a new trial is required.

This appeal presents us with a tangled knot of issues, many of which have not been discussed by the parties. Bailey, like most federal employment discrimination plaintiffs (at least before mid-1989), brought his claims under both Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. Sec. 2000e et seq.; and 42 U.S.C. Sec. 1981 ("Sec. 1981"). In June, 1989, the Supreme Court substantially limited the latter cause of action in Patterson v. McLean Credit Union, --- U.S. ----, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), a decision which we, like all the other federal appellate courts to address the issue, have decided to apply retroactively to cases (such as this one) that had not become final before Patterson was decided. See McKnight v. General Motors Corp., 908 F.2d 104, 110-111 (7th Cir.1990), and the cases cited there. See also Sims v. Mulcahy, 902 F.2d 524, 537 (7th Cir.1990); Brooms v. Regal Tube Co., 881 F.2d 412, 424 (7th Cir.1989). Patterson's effect on most of Bailey's claims, plus the additional complicating fact that Bailey brought two separate suits against NIPSCO that were (partially) consolidated for the jury trial at issue, form the knot of this case. Our best efforts at untangling it convince us that the judgment entered on the verdict must be vacated, the verdict set aside, and the cause remanded to the district court for further proceedings, which could include a new trial.

I.

The background most relevant to our disposition of this case is its procedural, rather than factual, history. We will therefore focus on the former.

Bennie Bailey began working for NIPSCO in 1971, and has worked for it continuously ever since. During the years relevant to this case, Bailey worked at NIPSCO's Dean H. Mitchell Generating Station in Gary, Indiana. Bailey's first job at the Mitchell Station was as an apprentice electrician in the electric shop. In 1981 and 1982, when the acts of which Bailey complains began, he was a "high-step" apprentice. (NIPSCO employs an eleven-step apprenticeship program for its electricians, after which one advances to "journeyman" electrician. In 1981-82, Bailey progressed from step seven to step eleven.) Generally, high-step apprentices were supposed to assist the journeymen electricians with the more skilled tasks around the shop, while the lower-step apprentices "paid their dues" by taking care of the more menial tasks.

According to Bailey's contentions, this normal distribution of tasks was skewed at the Mitchell Station because of race. Bailey claims that, in February, 1982, he was several times assigned particularly nasty tasks around the Station (called "nigger's work" by his supervisor), while white high-step apprentices were not given such tasks. He also claims that, throughout this time period (1981-82), he was subjected to "continuous harassment" by NIPSCO management for racial reasons. Specifically, he claims that he was treated differently than other (non-minority) electricians with similar attendance records with regard to the imposition of discipline, the allowance of sick leave benefits and the like.

Bailey first made these claims to the Equal Employment Opportunity Commission (EEOC) in a charge he filed in December, 1982, alleging Title VII violations. About a year later, the EEOC issued Bailey a notice of right to sue, which invitation he accepted in December, 1983. In this first suit ("Suit 1"), Bailey repeated his claims concerning discriminatory work assignments and harassment, and added a claim that his supervisors retaliated against him for filing the EEOC charge by heightening these practices and "bird-dogging" him (following him around the shop and watching him more closely than other employees). These Suit 1 claims were brought under both Title VII and Sec. 1981.

Suit 1 was assigned to Judge James Moody of the Northern District of Indiana. In December, 1986, Judge Moody bifurcated the Title VII and Sec. 1981 issues, and held a bench trial that same month on Bailey's claims under Title VII. After that one-day bench trial, Judge Moody filed an opinion finding that NIPSCO management intentionally assigned Bailey to particularly distasteful tasks at the Mitchell Station because of his race and as a retaliatory measure for Bailey's filing of EEOC charges. (Judge Moody found the evidence insufficient as to Bailey's other harassment claims.) Judge Moody ordered NIPSCO to stop discriminating on the basis of race in assigning jobs at Bailey's shop and to stop subjecting employees to harassment or differential treatment in retaliation for their opposition to discrimination. Judge Moody also ordered NIPSCO to establish and present to the court a "corrective action plan" to remedy its discriminatory job assignments, and awarded Bailey costs and attorneys fees. Entry of final judgment, however, was withheld pending jury trial on Bailey's Sec. 1981 claims.

The discrimination and retaliation of which Bailey complains is not confined to Suit 1, however. To set the stage for Bailey's additional claims, we must rejoin the story of Bailey's advancement at the Mitchell Station. In September, 1982, Bailey became a journeyman electrician. In July, 1983, Bailey began training for the higher-paying "operator" positions in the production department at the Mitchell Station. Over the succeeding year and a half, Bailey progressed through the various steps of operator training, eventually passing all the requirements for "ash and auxiliary operator." Bailey then began training to be a "relief operator" in the control room.

Potential control room operators must successfully complete on-the-job training in the control room, as well as a week-long simulator course held in Michigan City, Indiana. Bailey took the simulator course the week of October 8-12, 1984. As was customary, a practical test was administered to him on the fifth day of the course, during which he was asked to resolve problems inserted into the simulator by the instructor. Bailey had great difficulty with the test, at one point completely "tripping" the simulator unit off line. His final score on the test was 65%, a failing score that removed him from consideration for an operator position in the control room.

In May, 1985, Bailey filed a second EEOC charge arising out of these events. In this charge, Bailey claimed that NIPSCO management continued the harassment charged in Suit 1, particularly the denial of sick leave pay and the imposition of unwarranted discipline. Bailey also contended that he was given inferior training for, and a more difficult form of, the control room operator test than white control room operator trainees. Bailey claimed that NIPSCO thus purposefully made sure he would fail the simulator test as further racial discrimination against him and retaliation against him for filing the prior discrimination charges.

After receiving a notice of right to sue from the EEOC, Bailey filed a second suit against NIPSCO in November, 1986 ("Suit 2"). Suit 2, which was actually brought prior to Judge Moody's bench trial on the Title VII issues in Suit 1, was also brought under both Title VII and Sec. 1981. It challenged NIPSCO's alleged continued harassment, as well as NIPSCO's alleged retaliatory actions in failing Bailey on the simulator test. In June, 1987, Judge Moody recused himself from any further involvement in these cases, and Chief Judge Allen Sharp of the same district took them over. In August, 1987, Judge Sharp consolidated the remaining Sec. 1981 claims from Suit 1 with Suit 2. These consolidated cases were then tried to the jury in August/September, 1988.

After a six-day trial, the jury returned a general verdict in favor of Bailey and awarded him $15,000 in compensatory damages and $20,000 in punitive damages. NIPSCO promptly filed motions for new trial and for judgment notwithstanding the verdict ("JNOV") (having properly made motions for directed verdict at the close of Bailey's case and at the close of all evidence). The court denied these motions, as well as Bailey's post-trial motion for additional Title VII or equitable relief, and entered judgment on the jury verdict. NIPSCO filed a timely notice of appeal.

II.

For the past twenty years or so, victims of racial harassment by their employer could resort to either Title VII, Sec. 1981, or both. Pressing a Title VII charge through the EEOC's elaborate administrative procedures provided individuals a quicker, cheaper and more conciliatory resolution of their claims. Bringing suit under Sec. 1981, while it was most often slower, costlier and more divisive, offered individuals a bigger potential payoff by way of monetary damages. See generally M. Player, Employment...