Kyles & Pierce v. J.k. Guardian Serv.

• Decision Date: 05 July 2000
• Docket Number: No. 98-3652,98-3652
• Citation: 222 F.3d 289
• Parties: (7th Cir. 2000) KYRA KYLES and LOLITA PIERCE, Plaintiffs-Appellants, v. J.K. GUARDIAN SECURITY SERVICES, INC., d/b/a GUARDIAN SECURITY SERVICES, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 289

222 F.3d 289 (7th Cir. 2000)

KYRA KYLES and LOLITA PIERCE, Plaintiffs-Appellants, v. J.K. GUARDIAN SECURITY SERVICES, INC., d/b/a GUARDIAN SECURITY SERVICES, Defendant-Appellee.

No. 98-3652

In the United States Court of Appeals For the Seventh Circuit

Argued February 23, 1999

Decided July 5, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 8311--Suzanne B. Conlon, Judge. [Copyrighted Material Omitted] Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Kyra Kyles and Lolita Pierce worked for the Legal Assistance Foundation of Chicago ("LAF") as employment testers.¹ In that capacity, they applied for work as a receptionist with Guardian Security Services ("Guardian"). Although each of their white counterparts was offered the job, neither Kyles nor Pierce, both of whom are African-American, got past the initial interview. They sued Guardian for race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e, as well as section 1 of the Civil Rights Act of 1866, 42 U.S.C. sec. 1981. The district court granted summary judgment in favor of Guardian, reasoning that, as testers with no genuine interest in employment with Guardian, Kyles and Pierce lacked standing to sue. We conclude that testers do have standing to sue for violations of Title VII, but not section 1981.

I.

Because the district court entered summary judgment in favor of Guardian, we owe Kyles and Pierce a favorable summary of the facts. See Frobose v. American Sav. & Loan Ass'n of Danville, 152 F.3d 602, 604 (7th Cir. 1998).

LAF is a public-interest law firm that provides legal assistance to individuals who lack the means to retain counsel privately. Its employment testing project aims to detect discrimination in the employment sector using testing methods that have been used for years to assess compliance with the nation's fair housing laws. Specifically, in order to detect racial discrimination, LAF pairs a white tester with one of color, provides them both with fictitious credentials designed to be comparable in all pertinent respects (and perhaps somewhat more favorable to the non-white tester², trains them to interview similarly, and then sends them to apply for work with the same employer. The testers later prepare detailed reports of their experiences. The project director reviews the data, and when it appears that an employer is engaged in discrimination, informs the testers. Alone or in conjunction with bona fide job applicants, the testers who were rejected for employment may then pursue administrative and judicial remedies, as they did in this case. In order to remove questions about their objectivity and neutrality, however, the testers assigned their right to damages to LAF, and later to the Chicago Lawyers' Committee for Civil Rights Under Law and the Public Interest Law Initiative.

Kyles and Pierce were college students in 1995 when they took summer jobs with the LAF's employment testing project. As a condition of their employment with the project, they agreed to refuse any job offer extended to them in the course of their testing activities. With the help of LAF staff members, Kyles and Pierce then prepared fictitious resumes that supplemented their actual experiences with additional employment, education, and other data aimed at making them attractive to prospective employers.

In the Spring of 1995, Guardian placed an advertisement in the Chicago Tribune soliciting applications for the position of receptionist. LAF sent a pair of resumes to Guardian in response to the advertisement--one on behalf of a white candidate and one on behalf of an African-American candidate. Each of the resumes included information that permitted the reader to discern the race of the applicant. The African- American's resume reflected credentials that were comparable to, if not better than, the white applicant. Guardian did not respond to the African-American's application at all, but telephoned three times for the white candidate.

LAF subsequently sent Kyles and Pierce to Guardian to apply in person for the receptionist opening. Each was paired with a white tester. Although Kyles and Pierce were assigned credentials that were comparable or superior to those of their white counterparts, neither one of them fared as well in the application process.

Kyles had an interview with Guardian's director of human resources, Martin Labno, who told her that after consulting with Guardian's president and vice-president, he would ultimately select a group of three to four individuals to call back for a second interview. When Kyles' white counterpart applied for the job the following day, she interviewed not only with Labno but with Guardian's vice-president, Michael Malinowski, returned a day later for a typing test, and was offered the job on the spot. Soon after the white tester turned the offer down, Kyles called Guardian to check on the status of her application and was told that Labno had not yet decided whom to summon for a second interview. She never heard from Guardian again.

Within a few days, Pierce applied for the job. Labno interviewed her and told her that, after consulting with the company's president or its vice-president, he would be conducting follow-up interviews over the next few days. He promised to call her within a day or two. Pierce's white partner applied for the job on the same day, interviewed with Labno, and took a typing test. One week later, Guardian summoned the white tester for a second interview and offered her the job. When Pierce telephoned around that time to inquire about the status of the selection process, Labno told her that the company was "running behind." The white tester turned down the job offer, but Guardian never followed up with Pierce.

After securing right-to-sue letters from the Equal Employment Opportunity Commission ("EEOC"),³ Kyles and Pierce filed suit against Guardian alleging that the company had engaged in racial discrimination in violation of both Title VII and section 1981. Guardian counterclaimed, alleging that Kyles and Pierce had fraudulently misrepresented their interest in employment with the company. On summary judgment, Judge Conlon held that, as testers, Kyles and Pierce lacked standing to maintain the suit. Kyles v. J.K. Guardian Security Servs., Inc., 77 Fair Empl. Prac. Cas. (BNA) 1473, 1998 WL 677165 (N.D. Ill. Sept. 22, 1998). They were not interested in working for Guardian and would not have accepted employment had the company offered it to them. Consequently, they did not suffer the type of personal, redressable injury that would satisfy the "case or controversy" requirement found in Article III of the Constitution. Id., at *2. At best, the plaintiffs were asserting the rights of a "hypothetical third-party applicant who would have been harmed in a similar situation." Id., at *3. Judge Conlon also found standing wanting as a statutory matter. Id., at *3-*4. Both Title VII and section 1981 condition the right to sue on a bona fide application for employment, she reasoned. Id., at *3. In that regard, they stand apart from the Fair Housing Act, under which courts have acknowledged tester standing. Id. Having found that the plaintiffs lacked standing to pursue their federal claims, Judge Conlon relinquished jurisdiction over Guardian's state- law counterclaims. Id., at *4; see 28 U.S.C. sec. 1367(c)(3).

II.

The Constitution confines the federal judicial power to "Cases" or "Controversies." U.S. Const. Art. III, sec. 2. Implicit in that limitation is the requirement that the party invoking the court's jurisdiction have standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S. Ct. 1055, 1067 (1997); Gillespie v. City of Indianapolis, 185 F.3d 693, 701 (7th Cir. 1999), cert. denied, 120 S. Ct. 934 (2000). Broadly speaking, standing turns on one's personal stake in the dispute. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S. Ct. 2620, 2630 (1978). In order to establish that interest, the plaintiff must show that: (1) she has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 2136 (1992); Gillespie, 185 F.3d at 701.

A plaintiff's claim might satisfy each of these Article III criteria and yet run afoul of judicially-imposed, prudential limitations on standing. The injury that she claims, for example, may be one that is indistinct from effects felt by many or all citizens, depriving her of a unique stake in the controversy. See Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205 (1975). Her claim may rest on the legal rights of third parties, rather than her own. Id. at 499, 95 S. Ct. at 2205; see Singleton v. Wulff, 428 U.S. 106, 114, 96 S. Ct. 2868, 2874 (1976). Or her interest, although real, may not fall within the zone of interests protected by the statute she invokes. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n.19, 96 S. Ct. 1917, 1925 n.19 (1976), citing Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830 (1970). Using these prudential considerations, "the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S. Ct. 1601, 1608 (1979); see also Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999), petition for cert. filed (May 30, 2000) (No. 99- 1918).

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