Diaz v. Kraft Foods Global Inc.

• Decision Date: 08 August 2011
• Docket Number: No. 10–3073.,10–3073.
• Citation: 112 Fair Empl.Prac.Cas. (BNA) 1697,94 Empl. Prac. Dec. P 44250,653 F.3d 582
• Parties: Jose DIAZ, Ramon Peña, and Alberto Robles, Plaintiffs–Appellants,v.KRAFT FOODS GLOBAL, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

653 F.3d 582

112 Fair Empl.Prac.Cas. (BNA) 1697

94 Empl. Prac. Dec. P 44,250

Jose DIAZ, Ramon Peña, and Alberto Robles, Plaintiffs–Appellants,

v.KRAFT FOODS GLOBAL, INC., Defendant–Appellee.

No. 10–3073.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 23, 2011.Decided Aug. 8, 2011.

Michael Steigmann, Attorney, Law Offices of Michael Steigmann, Chicago, IL, for Plaintiff–Appellant.Ramon Peña (argued), Chicago, IL, pro se.Mary M. Moore, Christy E. Phanthavong (argued), Attorneys, Bryan Cave, Chicago, IL, for Defendant–Appellee.Before KANNE, WOOD, and SYKES, Circuit Judges.WOOD, Circuit Judge.

After Kraft Foods announced a plan in 2008 to outsource many positions at its Tech Center located in Glenview, Illinois, it arranged for the new company to accept applications from Kraft employees who were about to lose their jobs. This case arises from the fallout of that decision. Two of the targeted employees, Jose Diaz and Ramon Peña, chose to apply for positions with Kraft that opened up around that time, rather than pursuing employment with the new vendor. When Kraft did not hire either one, their employment with the company terminated. A third employee, Alberto Robles, stayed with Kraft, but he believes that since 2001 Kraft has paid him less than he deserves because it has never promoted him from a “grade 2” to a “grade 3” position. The plaintiffs attribute these adverse employment actions to their supervisor, Peter Michalec, who they say is biased against Hispanics. The district court concluded that the plaintiffs failed to create a triable issue on whether racial animus motivated any of Kraft's actions and granted summary judgment for the defendant. We find that the district court improperly discounted the plaintiffs' strongest evidence and erred in its legal analysis of Diaz and Peña's failure-to-hire claims, but that it properly granted summary judgment on Robles's disparate pay claim. Therefore, we reverse in part and affirm in part.

I

Kraft prevailed on summary judgment, and so we recount the facts in the light most favorable to the plaintiffs while noting disputes where relevant. Diaz's employment at Kraft began in 1990, and for nine years he was assigned to the sanitation and janitorial departments. In 1999, Diaz transferred to the shipping department, where he worked until he lost his job on November 15, 2008. Peña began in Kraft's shipping department as a part-time employee in 2000. In 2006, he became a full-time employee, staying in the position until he lost his job on the same day as Diaz. Peña and Diaz were hourly employees throughout their tenure with Kraft. Robles worked in the sanitation and janitorial departments as an hourly employee from 1987 to 2001. In June 2001, he became a senior technician in the support services department; this was the salaried position that he held at the time of this appeal.

In the proceedings below, two additional plaintiffs, Betty Flores and Robert Vela, were parties to this lawsuit. Flores defeated Kraft's motion for summary judgment and eventually settled her claim. Vela has not appealed. As will soon become clear, the evidence Flores marshaled to defeat Kraft's summary judgment motion remains relevant to this case.

The conduct of one Kraft supervisor, Peter Michalec, gives rise to this lawsuit. Michalec became the shipping supervisor in 2000, and starting in 2005 he also supervised the support services department. In 2008, once Kraft outsourced the shipping department where Peña and Diaz worked, Michalec became the supervisor of Pilot Plant Services, an entity comprised of the building operations group, the sanitation department, and the support services department. Michalec was in charge of hiring for the positions Diaz and Peña sought, and he had the authority to increase Robles's pay.

The plaintiffs complain that Michalec would send Flores, Diaz, and Peña outside to scrub parking lots, clean sewers, and tend to other disliked tasks “as often as possible” during the cold winter months, but he did not assign non-Hispanic employees to similar labors. They also assert that Michalec followed the three around during the day, timing their breaks and scrutinizing their work, without subjecting non-Hispanic workers to the same treatment. Additionally, the plaintiffs identify statements made by Michalec over the years that in their view illustrate his animus against Hispanics. Robles testified that Michalec said in 1999 that he got his job because he (Michalec) was white; Michalec called Robles a “gold-digger” when he asked for a raise; Michalec said “I'm white and I'm right”; and he yelled, “Get the hell out of my office. Go die somewhere else,” when Robles was having a heart attack in 2005. Carlos Casalan, another former employee, asserts that “on numerous occasions” Michalec said that he did not like Spanish people and referred to Hispanics as “dummies” and “stupid.”

The real trouble, however, surfaced when Diaz and Peña tried to get different jobs at Kraft around the time of the outsourcing. Kraft has a posting process to fill available jobs that usually proceeds as follows. A manager initiates the search by sending a potential job posting to the human resources department, which, after approval, sends the posting to the talent acquisition department. Talent acquisition puts the posting on Kraft's in-house website, distributes it internally on paper, or takes both actions. On occasion, Kraft also posts a sign-up sheet to permit interested employees to indicate their interest in a position.

In July 2008, Kraft posted a sign-up sheet for a single senior technician position. Diaz, Peña, and two other Hispanic employees, along with two African–American employees, signed up to be considered for the positions. Peña also sent an application and his resume to human resources. Shortly after the sign-up sheet was posted, somebody (nobody knows who) crossed off the names of the two African–American employees, leaving only four Hispanic employees in the applicant pool. Kraft then decided to freeze the hiring for that position. According to Kraft, the company knew that outsourcing was on the horizon and wanted to wait until the announcement was made so that more employees could apply for the position. In the plaintiffs' view, however, once Michalec saw that only Hispanics were competing for the position, he decided to halt the hiring.

In September 2008, once Kraft's plan for outsourcing was known to all, two senior technician and five sanitation positions became available. Kraft posted a notice to announce these vacancies, but it did not permit employees to indicate interest in the positions by putting their names on a sign-up sheet. Instead, Michalec created a list of interested employees and hired from that pool of candidates. Diaz and Peña accuse Michalec of refusing to let them apply for the senior technician positions, thereby eliminating the possibility that they would be hired. Kraft disputes this. It concedes that Diaz and Peña were not considered for the technician positions, but it asserts that the two men simply failed to apply. Diaz and Peña insist that this is implausible, since only two months earlier they both signed up to apply for an almost identical position, and by September it was apparent that if they did not acquire another position with Kraft their jobs would be eliminated as a consequence of the outsourcing. They maintain that they complained to human resources that they were being shut out of the application process, but once they did so Kraft quickly filled at least one of the positions before the application period ended and before Diaz and Peña were able to get their names into the applicant pool.

Kraft ultimately hired Curtis Ward and Robert Meyers, two non-Hispanics, for the senior technician positions. Kraft concedes that none of the applicants for the senior technician positions met all of the qualifications on the posting, but it says that Ward and Meyers were the best match for the position because of their strong mechanical skills. The plaintiffs counter that the strength of Ward and Meyers's mechanical skills is irrelevant, since their complaint is that they were not even permitted to apply for the positions.

As for the sanitation positions, both Diaz and Peña were on the list of applicants compiled by Michalec. Nine employees applied for the five positions: four Hispanics, two Caucasians, and two African–Americans. Kraft says that all of the applicants were sufficiently qualified for the job, so it hired according to seniority. Based on that metric, Diaz and Peña were not selected, but two Hispanic employees with more seniority, including Betty Flores, were chosen. Diaz and Peña concede that they were lower on the seniority scale than the employees hired, but they assert that they were more qualified and should have been hired on that basis. They emphasize that the guidelines set out in Kraft's internal hiring policy do not list seniority as a variable in hiring decisions; Kraft responds that the policy does not prohibit the company from using seniority as a factor. In October 2008, Diaz and Peña complained to human resources and other supervisors that they were not hired for either of the positions because of their race. That month, Diaz filed a charge of discrimination with the EEOC, and Peña followed suit in November.

Betty Flores, who is not a party in this appeal, complained in the proceedings below that, although she was hired for a sanitation position, Michalec discriminatorily assigned her to a night-shift position. As evidence, she pointed to a conversation she had with Michalec shortly after he made the hiring decisions. Flores described the conversation as follows:

I told [Michalec] that I would prefer to remain on days because I was the first woman that had worked for sanitation.... [A]nd he told me there was nothing he could do ... because Matt Simeon[, who received one of the day-shift...