Filipovich v. K & R Exp. Systems, Inc.

• Decision Date: 07 December 2004
• Docket Number: No. 03-3011.,No. 03-2038.,No. 03-2070.,03-2038.,03-2070.,03-3011.
• Parties: Momcilo FILIPOVICH, Plaintiff-Appellee, Cross-Appellant, v. K & R EXPRESS SYSTEMS, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

391 F.3d 859

Momcilo FILIPOVICH, Plaintiff-Appellee, Cross-Appellant, v. K & R EXPRESS SYSTEMS, INC., Defendant-Appellant, Cross-Appellee.

No. 03-2038.

No. 03-2070.

No. 03-3011.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2004.

Decided December 7, 2004.

COPYRIGHT MATERIAL OMITTED

Michael I. Leonard (argued), Meckler, Bulger & Tilson, Chicago, IL, for Plaintiff-Appellee.

Kenneth P. Ross (argued), Coleman & Associates, Chicago, IL, for Defendant-Appellant.

Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Convinced that his employer, K & R Express Systems, Inc., has been discriminating against him on various grounds prohibited by Title VII 42 U.S.C. §§ 2000e, et seq., Momcilo Filipovich has sued the company several times. In the present case, he alleges that K & R discriminated against him on the basis of age and national origin and that it unlawfully retaliated against him for bringing his earlier complaints.

That earlier litigation began in 1995, when Filipovich sued K & R based on charges he filed with the EEOC in 1993 and 1994 complaining about discrimination on the basis of national origin and retaliation. See Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 392-93 (7th Cir.1999). Before that case was concluded in K & R's favor (in fact, just fifteen days after the district court dismissed the lawsuit) Filipovich filed another charge with the EEOC. This one claimed that the company had discriminated against him in a variety of ways, all on account of his age or national origin or because he had filed a charge. On April 27, 1998, the EEOC issued a notice of right to sue, and on July 27, 1998, Filipovich filed this lawsuit. The district court dismissed several of Filipovich's claims at the summary judgment stage, but the age discrimination and retaliation claims went to the jury. The jury found for Filipovich on both claims and awarded compensatory and punitive damages. After trial, however, the district court granted judgment as a matter of law to K & R on the age discrimination claim, finding that Filipovich failed to demonstrate that he was similarly situated to any younger employee who was treated more favorably. The court upheld the retaliation claim but remitted the punitive damages. K & R appealed from the verdict in Filipovich's favor, contending that there is insufficient evidence to support it; Filipovich cross-appealed from the judgment as a matter of law on the age claim and the elimination of his punitive damage award. We find that K & R has the better of the argument on all aspects of the case: we therefore reverse the judgment in Filipovich's favor on the retaliation claim, and we affirm the judgment for K & R on the remainder of the case.

I

Filipovich is a 62-year-old man from the former Yugoslavia who works for K & R Express Systems, a regional trucking company. Filipovich works at K & R's main terminal in Hinsdale, Illinois, and is a member of Local Union No. 710 of the International Brotherhood of Teamsters. Filipovich is, and was, a dockman for K & R. His responsibilities include loading and unloading freight on trucks and trailers. Filipovich has worked as a full-time dockman since 1982.

After fifteen years working only as a dockman, Filipovich sought a promotion to the position of "spotter." A spotter is responsible for moving trailers between various loading docks. Filipovich considered such a promotion "very big." The spotter position carried greater pay and certain weekend work assignments not available to dockmen. Additionally, driving a trailer is much easier on a person physically than is loading and unloading freight.

Spotter positions do not open up regularly. When the company expects openings, it posts a sign-up sheet. In order to be chosen and trained as a spotter, an interested employee must sign up. He must then take and pass a road test, which is designed to ensure that the person knows how to drive a trailer. Filipovich signed up for a spotter position, but he failed the road test twice. Scott Weigand, K & R's safety manager and the person in charge of spotters, met with Filipovich twice to train him on driving the trailers. Weigand then told Filipovich that he had to proceed to a "second stage" of training before he could take a qualification test. Weigand, however, never met with Filipovich again, and Filipovich was given neither another road test nor the qualification test. Although Filipovich again signed the sheet indicating his interest in the position, he was never again contacted about becoming a spotter.

Filipovich suspected that he was not selected as a spotter because he was thought to be too old. In late 1997, he filed an EEOC charge to this effect. Following the filing of his charge, Filipovich began to receive disciplinary letters, warning him of problems with his loading, unloading, and securing of freight. Filipovich received eight such letters between May 1998 and December 1999. As a result of the letters, Filipovich received two suspensions, one in November 1998, the other in December 1999. Filipovich did not have to serve the December suspension, as it was successfully reversed by his union.

Filipovich filed suit on July 27, 1998, alleging discrimination based on his age and national origin and retaliation against him for his prior complaints. The court granted K & R's summary judgment motion directed to the national origin claims and most of the age discrimination claims, but it allowed Filipovich to proceed on the claim that the denial of the promotion to the spotter position was on account of either his age or the company's desire to retaliate against him. At trial, Filipovich introduced evidence documenting Weigand's refusal to train him further on driving the trailers, and Weigand's refusal to explain what the "second stage" of training was supposed to be. Filipovich testified that he trained extensively on his own and felt ready to take a third road test, but that he was never allowed to do so. Filipovich also claimed that he had not committed any of the infractions for which he had been disciplined.

K & R argued that it refused to promote Filipovich to a spotter position because he failed the test twice, and because even after training sessions with Weigand, he still could not safely maneuver the trailers. K & R pointed out in its Rule 50 motion that Filipovich failed to show that he was as qualified as those dockmen who were promoted, or that there were similarly situated dockmen who received more extensive training. K & R emphasized that there is no official training program in place to teach dockmen how to drive the trailers, and that Weigand's attempts to teach Filipovich were out of the ordinary.

In response to the retaliation claim, K & R testified that its shipping manifests, which contain the records of all freight being loaded and unloaded, documented all of Filipovich's errors. In the normal course of its business, a dockman signs a manifest and notes on the manifest what freight he has handled. On September 18, 1998, K & R issued a letter to Filipovich outlining his failure to unload 39 pieces of a 460-piece shipment. The shipment was destined for Michigan, but the 39 pieces were left on a trailer heading for Missouri. Filipovich claimed that the shipping manifest indicated that all 460 pieces were to be left on the trailer, but he admitted unloading the 421 pieces and then circling the shipment on the manifest, which was a way of indicating that he had unloaded the entire 460-piece shipment. Each of the disciplinary letters arose out of similar circumstances. Filipovich introduced nothing to suggest that other dockmen did not receive letters when they committed comparable errors.

The jury nonetheless returned a verdict in Filipovich's favor on both claims. It awarded him damages of $1,200 in back pay on the age discrimination claim and $300 in back pay on the retaliation claim, as well as $126,423 in punitive damages. K & R filed a Rule 50 motion, which the district court granted with respect to the age discrimination claim. The district court upheld the jury verdict on the retaliation claim, but it reduced the punitive damage award to $25,000.

II

We review de novo the district court's decision to deny K & R's motion for judgment as a matter of law. See Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 578 (7th Cir.2003). Following a jury trial, we do not re-weigh evidence, nor do we make credibility determinations. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Our job is to assure that the jury had a legally sufficient evidentiary basis for its verdict. Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir.2000). A legally sufficient amount of evidence need not be overwhelming, but it must be more than a "mere scintilla." Id. Like our review of a summary judgment motion, we examine all the evidence in the record in the light most favorable to the party against whom the court granted judgment. See Cygnar v. City of Chicago, 865 F.2d 827, 834 (7th Cir.1989). Unlike our review of a summary judgment motion, however, review of a Rule 50 motion proceeds on the basis of the evidence the jury actually had before it. We will overturn a jury verdict only if, after reviewing that evidence, it is clear that the plaintiff failed to present enough evidence to support her claim. Massey, 226 F.3d at 924.

At the trial, the question was whether Filipovich presented enough evidence to permit the jury to conclude that he was the victim of discrimination. See Massey, 226 F.3d at 925. It is not, as the parties mistakenly assume in their briefs, whether Filipovich established all the elements of the prima facie case outlined in the McDonnell Douglas v. Green line of cases. Id."The McDonnell Douglas framework is designed to help plaintiffs raise an inference of discrimination during pretrial...