Hart v. Transit Management of Racine, Inc., No. 02-4291.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Per Curiam
• Citation: 426 F.3d 863
• Parties: Dennis HART and Scott Basken, Plaintiffs-Appellants, v. TRANSIT MANAGEMENT OF RACINE, INC., et al., Defendants-Appellees.
• Docket Number: No. 02-4291.
• Decision Date: 17 August 2005

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426 F.3d 863 Dennis HART and Scott Basken, Plaintiffs-Appellants,
v.
TRANSIT MANAGEMENT OF RACINE, INC., et al., Defendants-Appellees. No. 02-4291. United States Court of Appeals, Seventh Circuit. Argued June 14, 2005. Decided August 17, 2005.^*

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Dennis Hart, Racine, WI, Willie J. Nunnery (argued), Madison, WI, for plaintiffs-appellants.

Eugene A. Gasiorkiewicz (argued), Hanson & Gasiorkiewicz, Racine, WI, Andrea F. Hoeschen, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Milwaukee, WI, for defendants-appellees.

Before WOOD, WILLIAMS, and SYKES, Circuit Judges.

PER CURIAM.

This case began when Dennis Hart and Scott Basken sued their employer, Transit Management of Racine, Inc. (TMR), and their union, Teamsters Local 43 (the union), alleging racial discrimination, retaliation, and a "hybrid" claim. (Hart and Basken also named as defendants TMR's parent company, general manager, and senior mechanic. We refer to these defendants and the company collectively as TMR.) The district court dismissed Basken's part of the complaint for failure to state a claim and later ordered summary judgment against Hart. Basken, with the aid of counsel, and Hart, who is now proceeding pro se, challenge the respective rulings in this appeal.

I

The following facts are undisputed. Hart, who is African American, and Basken, who is white, both worked as mechanics for TMR. At the time of the events giving rise to this lawsuit, a collective bargaining agreement (CBA) between TMR and the union specified that the company would assign overtime based on seniority. The CBA also classified separately the jobs of "mechanic" and "mechanic's helper." Among the seven TMR mechanics, Hart was less senior than four white men, but more senior than Basken, the junior mechanic. In spite of his relatively low seniority, however, Hart was second only to the senior mechanic in hours of overtime worked during the period from January 3, 1998, to July 13, 2002.

Hart and Basken, represented by the same counsel in the district court, filed a joint complaint identifying 42 U.S.C. § 1981 as the sole basis for their claims. Hart alleged that, despite the CBA seniority

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system, TMR refused on account of his race to give him overtime. Although the complaint alleged that the senior mechanic constantly discriminated against Hart when awarding coveted overtime, it cited just one such incident: on December 17, 2000, mechanic's helper Julie Kalk, who is white, was given overtime that Hart wanted and insisted should have gone to a mechanic. This incident prompted Hart to file a grievance, which Basken supported. Hart and Basken alleged that TMR and the union responded to Hart's grievance by instituting mandatory overtime and thus forcing Basken, as the junior mechanic, to work overtime that he did not want.

In response to TMR's motion to dismiss under FED. R. CIV. P. 12(b)(6), the district court concluded that § 1981 does not support recovery when a plaintiff claims that he suffered retaliation for supporting another employee's charge of discrimination, rather than discrimination on account of his own race. The court thus dismissed the entire complaint as to Basken. Hart's claims proceeded to summary judgment, which the court granted in favor of TMR and (without opposition) the union. The court reasoned as to TMR that Hart had failed to establish a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because he lacked evidence of a similarly situated employee from outside the protected class who received preferential treatment. As to the union, the court found that Hart produced no evidence that TMR breached the CBA.

II

We begin with the district court's dismissal of Basken's retaliation claim against TMR and the union. Our review is de novo. See Centers v. Centennial Mortgage, Inc., 398 F.3d 930, 933 (7th Cir.2005).

Retaliation is grounds for relief under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-3(a), which "makes it unlawful for any employer to discriminate against an employee for opposing a practice made unlawful by the Act," Fine v. Ryan Intern. Airlines, 305 F.3d 746, 751 (7th Cir.2002); see Stutler v. Illinois Dep't of Corr., 263 F.3d 698, 702...