Bush v. Commonwealth Edison Co.

• Decision Date: 10 May 1993
• Docket Number: No. 92-2788,92-2788
• Citation: 990 F.2d 928
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 760, 61 Empl. Prac. Dec. P 42,161, 2 A.D. Cases 679, 1 A.D.D. 812, 4 NDLR P 190 Jay V. BUSH, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 928

990 F.2d 928

61 Fair Empl.Prac.Cas. (BNA) 760,

61 Empl. Prac. Dec. P 42,161, 2 A.D. Cases 679,

1 A.D.D. 812, 4 NDLR P 190

Jay V. BUSH, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.

No. 92-2788.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 23, 1993.

Decided April 5, 1993.

Rehearing and Rehearing En Banc Denied May 10, 1993.

^*

Randall D. Schmidt, Mandel Legal Aid Clinic, Chicago, IL (argued) for plaintiff-appellant.

Linzey D. Jones, Jr., Glenn D. Newman (argued), Sidley & Austin, Chicago, IL, for defendant-appellee.

Before POSNER and MANION, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

POSNER, Circuit Judge.

The plaintiff in an employment discrimination case, a black man named Jay Bush, appeals from the grant of summary judgment in favor of his former employer, Commonwealth Edison Company. 778 F.Supp. 1436 (N.D.Ill.1991). The appeal presents issues under several statutes.

Commonwealth Edison hired Bush in 1978 as a repairman in the transportation department of Edison's Chicago South Division. For four years all went well. Then in June 1982 Bush injured a knee while working and was placed on restricted duty for a couple of weeks. In December of the following year he reinjured the knee, and required surgery and extensive physical therapy. Edison imposed medical restrictions on him (such as no climbing or heavy lifting) that prevented him from performing the regular duties of his repairman's job. He was given light work to do in the department. After surgery and extensive physical therapy, he was able to resume almost all the duties required of a repairman. But after he balked at performing certain assigned tasks on the ground that they required more bending and kneeling than he could safely do, the company referred him to an orthopedic specialist who in July 1985 advised the company to place Bush in "a permanent sitting position." Concluding that Bush would never recover sufficiently to resume his repairman's work, Edison transferred him to a lower-paying clerical position (primarily involving filing) in the Customer Service Department of the Chicago South Division. This transfer was made shortly after and, Bush contends, because he had filed a workers' compensation claim against Edison (on which he eventually prevailed) in connection with the December 1983 reinjury of his knee, which Edison had contended was not a work-related accident.

Now begins a long tale of tardiness and absenteeism. Bush wanted to be a mechanic, not a file clerk. He had been in the Customer Service Department only two days when he took disability leave because of an automobile accident. Due to return on August 27, 1985, he called his supervisor the day before and asked to be allowed to come in late the next day because of a court appearance in the morning. He did not show up the next day at all, because the court appearance turned out to be in the afternoon. So his first day back from his disability leave was August 28--and he showed up late. Five days later he asked his supervisor for a day off to move his personal tools out of the Transportation Department. The supervisor arranged for the Transportation Department to move the tools so that Bush could work that day, but Bush refused to work despite his supervisor's warning that he would be disciplined. He was given a three-day suspension.

He returned to work, following the suspension, on September 9. Between then and November 4, he missed 19 days of work because of surgery on his injured knee, missed part of six other days because of physical therapy and court appearances, and was late for work on five days. On November 4 his supervisor warned him that he must improve or face further discipline. In the ensuing month, however, he missed nine days of work because of illness and court, and on December 4 he received a further warning.

January 1986 was uneventful, but between February 5 and March 6 Bush was late for work four times, was warned again, and on March 6 was suspended for five days for his overall record of absenteeism and tardiness and was warned that a failure to improve would "most likely" result in his being fired. Meanwhile he kept seeking unsuccessfully to return to the Transportation Department, but he refused Edison's offer to have his knee examined by one of the company's doctors. On July 3, Bush was late for work because of car trouble, and was again warned. August was uneventful but between September 4 and 23 Bush missed one day of work because of a court appearance and was late without excuse on four other days. On September 23, Edison fired him because, it says, of his "total record." He sought unemployment compensation on the ground that he had been fired in retaliation for filing the workers' compensation claim, but was turned down by the Illinois Department of Employment Security, which found that he had been fired for misconduct.

Bush claims that the company's actions in transferring him to the Customer Service Department (a demotion, because it paid a much lower wage), in refusing to retransfer him to the Transportation Department, and eventually in firing him were due to his race and to his having filed a workers' compensation claim. We begin with the claim that he was fired because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Edison was entitled to summary judgment on that claim if, on the basis of the record that was before the district judge when he ruled on the motion for summary judgment, no finder of fact could reasonably have found that Bush, had he not been black, would not have been fired. There is no direct evidence that Edison discriminates against blacks, and Bush had an awful work record. In less than seven years of employment he missed 221 days of work because of injuries and illnesses, car problems, and court appearances arising out of traffic tickets and the automobile accident in which he was involved, and he was late to work on many other days. Many of these absences were not culpable, but a worker who for whatever reason does not show up for work regularly is not a satisfactory employee and is quite likely to be let go.

In these circumstances Bush had to show that although he was not a good employee, equally bad employees were treated more leniently by Edison if they happened not to be black. Riordan v. Kempiners, 831 F.2d 690, 697-98 (7th Cir.1987); Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir.1990). Bush's effort to make this showing is capsulized in a chart in his brief that compares his record with that of four other employees in the Customer Service Department, three white and one Hispanic. One of the whites was, like Bush, fired. The other two whites and the Hispanic were not, although, judging from the chart, their work records were even worse than Bush's. However, the chart is misleading. It omits reference to many of Bush's absences and reprimands. And it arbitrarily excludes other employees who were retained, including a black man who remains in Edison's employ even though he has received ten suspensions, and other employees who were fired, including a white man who, like Bush, was fired after having been suspended only twice, although Edison's normal practice is not to fire an employee until he has been suspended three times.

Of course a company cannot insulate itself from a finding of racial discrimination by pairing the firing of a black man with the firing of a white one, or by pointing to a token black whom it treated with abnormal leniency. But what is not permitted as a shield is not necessarily usable as a sword. A plaintiff cannot establish a prima facie case of racial discrimination by showing that, in a large department, a coworker of another race was treated more favorably than he, though other coworkers of his race were treated more favorably than other coworkers of other races. Such a pattern, in which blacks sometimes do better than whites and sometimes do worse, being random with respect to race, is not evidence of racial discrimination. But that is all that Bush has.

We do not want to be misunderstood. Discriminating against blacks on one occasion, in one department, etc. is not cured by discriminating in their favor on another occasion, or in another department, etc. Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); Washington v. Electrical Joint Apprenticeship & Training Committee, 845 F.2d 710, 713 (7th Cir.1988). To be free from discrimination is an individual rather than a group entitlement. But that principle is engaged only when there is evidence of discrimination apart from the fact that blacks sometimes are treated better than whites and sometimes worse. For that fact is not evidence of discrimination at all. One would expect that an employer who did not discriminate on racial grounds, but who also did not adhere rigidly to his disciplinary rules and therefore sometimes fired workers after one or two suspensions though the norm was three, would treat some blacks more leniently than some whites and some blacks more harshly than some whites, as indeed would also be true if the employer did adhere rigidly to his disciplinary rules. It can be argued that failure to adhere to the rules opens the way to subjective determinations likely to reflect unconscious racial bias, but if so there would be evidence of systematic rather than random disfavoring of blacks. Had Bush's counsel examined the work records of a random sample of Bush's coworkers during the period of his employment and found a statistically significant...