Harper v. Godfrey Co.

• Decision Date: 27 February 1995
• Docket Number: No. 93-4016,93-4016
• Citation: 45 F.3d 143
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 1258 Gregory HARPER, et al., Plaintiffs-Appellants, v. GODFREY COMPANY and D.B. Barcom, Incorporated, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 143

45 F.3d 143

66 Fair Empl.Prac.Cas. (BNA) 1258

Gregory HARPER, et al., Plaintiffs-Appellants, v. GODFREY COMPANY and D.B. Barcom, Incorporated, Defendants-Appellees.

No. 93-4016.

United States Court of Appeals Seventh Circuit.

Argued Sept. 12, 1994.

Decided Jan. 10, 1995.

Rehearing Denied Feb. 27, 1995.

Mark J. Rogers (argued), Angermeier & Rogers, Milwaukee, WI, for plaintiffs-appellants.

Paul E. Prentiss (argued), Michael, Best & Friedrich, Milwaukee, WI, for defendants-appellees.

Before GODBOLD, ^* FLAUM, and ROVNER, Circuit Judges.

GODBOLD, Circuit Judge.

Plaintiffs claim that: (1) their employment placed them on a discriminatorily ordered seniority list with Caucasians at the top of the list and African-Americans at the bottom, and (2) they were discriminatorily laid off. The district court held that plaintiffs were barred from bringing their seniority list claim under Title VII, 42 U.S.C. Secs. 2000e et seq., since it was not a charge in their EEOC complaints; that the seniority list claim failed under 42 U.S.C. Sec. 1981 pursuant to Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); and that race was the determinative factor in deciding who was to be laid off. 839 F.Supp. 583. We affirm in part and reverse in part.

BACKGROUND

This case has its genesis in a labor strike that took place at the warehouse of Godfrey Company in Waukesha, Wisconsin, during the summer of 1985. Godfrey is a wholesale food distributor and retailer that supplies food for stores located throughout Wisconsin. In anticipation of a strike by the regular warehousemen and drivers Godfrey began hiring and training strike replacements who were recruited from an employment agency and advertisements in local newspapers. This recruiting method, which varied from Godfrey's usual method of recruitment, resulted in a work force with a much higher percentage of African-Americans (possibly in excess of 50%) than the pre-strike method. ¹ Plaintiffs Gregory Harper, Alonzo Webber, and Steven Wright were all hired at this time.

The strike began in June 1985 and lasted for six weeks. The situation was chaotic with 150-200 replacements hired and trained during the course of the strike. Striking workers engaged in violence, ranging from verbal harassment to death threats and a shot being fired at a worker.

The strike ended in mid-August, and a hierarchy of workers was created. Regular full-time employees were at the top; the previously striking workers comprised this group. Part-time workers, called "casuals," comprised the second tier. Casuals substituted for vacationing or ill regular employees and supplemented the manpower of the regular employees. Additionally, casuals were hired as new regular employees were needed. Godfrey recruited the original casuals from the group of strike replacements remaining at the end of the strike. These casual employees represented the best of the strike replacements based on knowledge, performance, and attendance. Plaintiffs were among the strike replacements selected as casuals.

Godfrey employed plaintiffs for approximately two years before they were discharged. Plaintiffs do not contest their discharges. Rather they assert that: (1) the casual seniority list, by which casuals were hired as regular employees, was ordered discriminatorily so that African-American casuals were on the bottom half of the list; and (2) a "layoff" period of approximately 12 weeks in early 1986 discriminated against them on the basis of their race. Their claims were advanced pursuant to Sec. 1981 and Title VII.

The district court issued a pre-trial order which effectively eliminated plaintiffs' Sec. 1981 claims. The remainder of the case proceeded to trial, and the court found for plaintiffs on their layoff claim and against plaintiffs on their casual seniority list claim under Title VII. Judgment for plaintiffs was entered, and they appealed.

DISCUSSION

I. Seniority List Claim

A. 42 U.S.C. Sec. 1981

Following a motion to reconsider the denial of defendants' motion for partial summary judgment, ² the district court found that plaintiffs failed to state a claim under Sec. 1981 because they failed to prove that moving from the casual seniority list to regular employee status would be a promotion under the test in Patterson, 491 U.S. 164, 109 S.Ct. 2363. We review the district court's decision de novo and hold that this question must be submitted to a jury.

The Supreme Court laid out the original test in Patterson: "Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under Sec. 1981." Id. at 185, 109 S.Ct. at 2377. ³ Finding this language difficult to apply, the Seventh Circuit has further developed the test. Through the last five years the court has produced three tests: the contract test, the outsider test, and the job requirements test. The contract test focuses on whether the alleged promotion would alter the contractual relationship between the employee and employer. Malhotra v. Cotter & Co., 885 F.2d 1305, 1311 (7th Cir.1989). See also Mozee v. American Commercial Marine Serv. Co., 940 F.2d 1036, 1055 (7th Cir.1991) (determining that the promotions in that case would not create new and distinct relationships), cert. denied, --- U.S. ----, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992). The outsider test accounts for the occasional fact situation in which a stranger could sue a company under Sec. 1981 if he was denied a position on racial grounds but an employee of the same The district court (J. Randa) applied the outsider test and the job requirements test, reasoning that the Seventh Circuit has moved away from the original contract test. R. 94 at 8-10. To the contrary, we hold that the contract test is alive and well in the Seventh Circuit, as are the outsider test and the job requirements test. See, e.g., Mojica v. Gannett Co., 7 F.3d 552, 560 (7th Cir.1993) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 1643, 128 L.Ed.2d 363 (1994); Harriston v. Chicago Tribune Co., 992 F.2d 697, 702 (7th Cir.1993); Partee, 954 F.2d at 457. The outsider test does not apply to the facts of the instant case since only those persons on the casual seniority list were eligible for promotion to regular employee status. Under the contract test and the job requirements test, plaintiffs presented enough evidence of the changes a promotion would entail to present a disputed material issue that survived defendants' motion for partial summary judgment.

                company could not sue even if his application for the position was denied on the same grounds.  Malhotra, 885 F.2d at 1311.   The job requirements test looks to see whether there was a substantial change in the employee's job duties and responsibilities.  Id. at 1317 n. 6 (J. Cudahy concurring).  The court also has emphasized the requirement of a qualitative change in the relationship, Taylor v. Western & S. Life Ins. Co., 966 F.2d 1188, 1201 (7th Cir.1992), and, in a few cases, has specified facts that would or would not be classified as a promotion, Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1473 (7th Cir.)  ("neither an increase in pay alone ... nor a simple change in status involving no additional responsibilities ... constitutes a new and distinct relation....") (citations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 419, 126 L.Ed.2d 365 (1993);  Partee v. Metropolitan Sch. Dist. of Wash.  Township, 954 F.2d 454, 457 (7th Cir.1992) (assuming supervisory duties plus other factors might create a new employer-employee relationship);  Luddington v. Indiana Bell Telephone Co., 796 F.Supp. 1550, 1560 (S.D.Ind.1990) ("[A]n employee must assume responsibilities that are distinctly different from the previous job, along with an increase in the level of the job."), aff'd on other grounds, 966 F.2d 225 (7th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 1641, 128 L.Ed.2d 362 (1994)
                

Upon the first consideration of this issue the district court (J. Stadtmueller) found that "elevation from casual to regular employee involves a new and distinct relation between employer and employee." R. 43 at 13. The court considered many factors in reaching its decision. It noted that casual employees could be terminated at will, while regular employees could be terminated only for cause and also had review procedures available to them. The regular employees earned contractual seniority rights that casual employees did not earn. Regular employees earned better salaries and enjoyed fringe benefits that the casuals did not. Id. at 12-13. These considerations most easily fit under the contract test.

When the district court (J. Randa) reconsidered the issue it primarily focused on factors that would fall within the confines of the job requirements test. The court noted that "the only qualification for becoming a regular employee was being the next in line on the casual seniority list when a position became available." R. 94 at 10. The court continued, stating that casual employees who had earned regular employee status often performed the same jobs in the same departments and for the same supervisor. Such an employee did not gain any supervisory responsibilities, his wage remained an hourly wage, and he stayed within the same collective bargaining unit. Id.

In the final analysis it appears that the promotion from casual to regular employee does not survive Patterson using the job requirements test. However, application of the contract test and the evidence of increased job security, seniority rights, better salary, and more fringe benefits present disputed material issues of fact that require submission to a jury.

B. Title VII

Generally a plaintiff may not bring claims under Title VII that were not originally brought among the charges made to the To include a discrimination claim in a federal district court complaint that was not brought in the...