Humphries v. Cbocs West, Inc., No. 05-4047.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtWilliams
Citation474 F.3d 387
Decision Date10 January 2007
Docket NumberNo. 05-4047.
PartiesHedrick G. HUMPHRIES, Plaintiff-Appellant, v. CBOCS WEST, INC., Defendant-Appellee.
474 F.3d 387
Hedrick G. HUMPHRIES, Plaintiff-Appellant,
CBOCS WEST, INC., Defendant-Appellee.
No. 05-4047.
United States Court of Appeals, Seventh Circuit.
Argued March 28, 2006.
Decided January 10, 2007.
Rehearing Denied January 29, 2007.

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Angel M. Krull (argued), Robinson, Curley & Clayton, Chicago, IL, for Plaintiff-Appellant.

John F. Kuenstler (argued), Barnes & Thornburg, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Hedrick Humphries filed a suit alleging claims of discrimination and retaliation under Title VII and 42 U.S.C. § 1981 against CBOCS West, Inc., based upon his discharge as an associate manager at one of defendant's Cracker Barrel restaurants. After dismissing Humphries's Title VII claims as procedurally barred, the district court granted summary judgment in favor of CBOCS West, Inc. (hereinafter "Cracker Barrel"), holding that Humphries could not establish his prima facie burden of showing that a similarly situated individual in a non-protected class was treated more favorably. We reverse the district court's grant of summary judgment as to Humphries's retaliation claim because Humphries made a sufficient showing under the indirect method to establish a prima facie case of retaliation under section 1981. We affirm the judgment as to Humphries's discrimination claim because Humphries forfeited this claim by failing to present an adequate argument before the district court.


The following facts are recounted in the light most favorable to Humphries, the non-movant. Humphries, an African-American male, was an associate manager at a Cracker Barrel restaurant in Bradley, Illinois. Associate managers at Cracker Barrel are supervised by a general manager, who in turn is supervised by a district manager. In this case, three general managers cycled through

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during Humphries's three-year tenure: Don Sessions, Steve Cardin and Ken Dowd. His performance during his first two-and-a-half years (roughly February 1999 through mid-July 2001) was generally excellent. For instance, he received annual merit raises and bonuses, and his supervisor (Sessions) testified that he considered Humphries to be his best associate manager. Circumstances changed for Humphries when Cardin took over (as a temporary replacement) for Sessions. According to Humphries, Cardin routinely made racially derogatory remarks, such as stating that all African-Americans are "drunk or high on drugs" or that "all Mexicans have a bunch of kids." Humphries alleges that other employees confirmed Cardin's inappropriate comments, and told Humphries that Cardin had stated that he was there "for the white people" and was "going to take care of the white people."

Within Cardin's initial month of being the general manager, he issued Humphries five disciplinary reports, called Employee Counseling Reports (ECRs). The ECRs covered a wide range of alleged misconduct, including bank deposit shortages and inappropriate use of Gold Cards to provide complaining customers a free meal. Humphries claims that the ECRs were groundless and reflected Cardin's racial animus. In response, in August or September 2001, Humphries complained to Cardin's supervisor, district manager William Christensen. Christensen, however, appears not to have conducted any investigation of Humphries's claims, contrary to Cracker Barrel policies.

In September 2001, Ken Dowd became general manager (Cardin returned, as planned, to his store). Shortly thereafter, Joe Stinnett, one of Humphries's fellow associate managers, fired an African-American food server, Venis Green, because she purportedly failed to show up for a shift. Humphries complained to both Dowd and Christensen that Stinnett's firing of Green was discriminatory because, among other things, Green had informed both Humphries and another associate manager that she could not work that shift. Moreover, according to Humphries, a white employee had failed to appear at work on several occasions without notice, but was not fired. Humphries also reminded Christensen of his earlier complaints regarding former-general manager Cardin. According to Humphries, Christensen berated him for "going outside the management group" (i.e., turning to Christensen, rather than Dowd, to complain) and demanded that Humphries schedule a meeting with Dowd for the following week.

This scheduled meeting never occurred because on December 5, 2001 (the day before Humphries's scheduled meeting with Dowd), Christensen fired Humphries, based upon Stinnett's complaint that Humphries had left the store safe unlocked during the evening—a charge that Humphries disputes. Humphries also claims that prior to his firing (and before his alleged failure to lock the safe), a cashier warned him that he should watch himself because Christensen and Stinnett were "up to something." After being informed by Stinnett that Humphries had left the safe unlocked, Christensen immediately terminated Humphries—without interviewing him or investigating the incident to determine whether Humphries had actually left the safe open.

Humphries subsequently brought claims of discrimination and retaliation under Title VII and section 1981. The district court dismissed Humphries's Title VII claims due to procedural deficiencies (and Humphries does not appeal this determination). The district court also granted summary judgment in favor of Cracker

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Barrel on Humphries's section 1981 claims, finding that Humphries failed to establish his prima facie case under either the direct or indirect method. Humphries now appeals.


A. Historical Overview of Retaliation Claims under Section 1981

Before we turn to the merits of this appeal, we must decide whether Humphries's retaliation claim is cognizable under section 1981. Although Cracker Barrel failed to raise this issue in the district court, it now claims that our decision in Hart v. Transit Management of Racine, Inc., 426 F.3d 863 (7th Cir.2005), precludes Humphries's retaliation claim. In the normal course, when a party fails to present an argument in the trial court, it forfeits the argument on appeal. See Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th Cir.2004); McKnight v. Gen. Motors Corp., 908 F.2d 104, 107-10 (7th Cir.1990). At oral argument, counsel for Cracker Barrel explained that he did not raise this issue in the district court because Hart, which he contended created a change in the law in this circuit, had not yet been issued. Although (as we will explain later), we do not believe that Hart changed our jurisprudence regarding section 1981 retaliation claims, we will not penalize Cracker Barrel for failing to raise its argument below.1

Of course, we retain the right to consider forfeited arguments, and may choose to do so "in the interests of justice." Mass. Bay Ins. Co. v. Vic Koenig Leasing, Inc., 136 F.3d 1116, 1122 (7th Cir.1998); see also Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 749-50 (7th Cir.1993) (holding that "[i]n the rare case in which failure to present a ground to the district court has caused no one—not the district judge, not us, not the appellee—any harm of which the law ought to take note, we have the power and the right to permit it to be raised for the first time to us"). In this instance, given that our recent Hart decision appears to have created some confusion in the district courts and has already been misapplied in several decisions, it is in the interests of justice to clarify the issue of whether retaliation claims are cognizable under section 1981 (and, in so doing, clarify our ruling in Hart). See Amcast, 2 F.3d at 749-50 (reaching issue not raised below because it was fully briefed on appeal, rested "entirely on a pure issue of statutory interpretation, as to which the district judge's view, while it would no doubt be interesting, could have no effect on our review, which is plenary on matters of law[, and] there is no reason to defer its resolution to another case. There will be no better time to resolve the issue than now."); Mass. Bay Ins. Co., 136 F.3d at 1122 (reaching forfeited choice-of-law issue

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because "we clearly think it is in the interest of justice to insure that district courts conduct choice-of-law analyses when conflicts questions are presented to them").

1. Section 1981's Origin in the Civil Rights Act of 1866

The language codified in section 1981 derives from section 1 of the Civil Rights Act of 1866, a Reconstruction-era statute that is generally recognized as the first significant civil rights legislation enacted by Congress, and is considered the "initial blueprint of the Fourteenth Amendment." Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); see generally Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-37, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (discussing legislative history and historical context of the Civil Rights Act of 1866); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 711-22, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (same); Patterson v. McLean Credit Union, 491 U.S. 164, 192-200, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (Brennan, J., concurring in part and dissenting in part) (same); Robert J. Kaczorowski, Comment, The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary, 98 Yale L.J. 565 (1989). The legislative history of the Civil Rights Act of 1866 is complicated—and not without substantial interpretive disagreement. See generally George Rutherglen, The Improbable History of Section 1981: Clio Still Bemused and Confused, 2003 Sup.Ct. Rev. 303. The Civil Rights Act of 1866 was passed pursuant to section 2 of the Thirteenth Amendment, which provided Congress with the legislative power to enforce the Thirteenth Amendment's...

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