Loyd v. Phillips Bros., Inc.

• Decision Date: 27 May 1994
• Docket Number: No. 92-1710,92-1710
• Citation: 25 F.3d 518
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 1513, 64 Empl. Prac. Dec. P 43,158 Sandra K. LOYD, Plaintiff-Appellant, v. PHILLIPS BROTHERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 518

25 F.3d 518

64 Fair Empl.Prac.Cas. (BNA) 1513,

64 Empl. Prac. Dec. P 43,158

Sandra K. LOYD, Plaintiff-Appellant, v. PHILLIPS BROTHERS, INC., Defendant-Appellee.

No. 92-1710.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 23, 1994.

Decided May 27, 1994.

Alexandra De Saint Phalle, Londrigan, Potter & Randle, Springfield, IL (argued), for plaintiff-appellant.

John A. Kauerauf, Sorling, Northrup, Hanna, Cullen & Cochran, Springfield, IL (argued), for Phillips Bros., Inc.

Before FLAUM and EASTERBROOK, Circuit Judges, and MILLER, District Judge. ^*

FLAUM, Circuit Judge.

While Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq., is rather straight-forward on its own terms ("It shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color religion, sex, or national origin...."), a rather thick judicial gloss, over twenty years deep, has developed, in part to accommodate difficult matters of proof in diverse factual settings. Sometimes, however, too rigid adherence to the formulaic prescriptions of the appellate courts (which are laid out with particular factual settings in mind and are seldom as generalizable as purported) blocks proper analysis of what should be uncomplicated issues of discrimination. Something of the sort may well have occurred in this case, resulting in judgment for the defendant although the plaintiff's entitlement to relief was apparent.

Sandra Loyd, the plaintiff in this case, was employed by Phillips Brothers, Inc., the defendant, as a bookbinder. Like many other binderies, Phillips maintains three classes of bindery employees: J-1 workers, J-2 workers and GPWs (general production workers). Wages are set by collective bargaining with Graphic Communications International Union Local 132B. J-1s have always earned more than J-2s who in turn earn more than GPWs. According to the collective bargaining agreement, J-2s and GPWs are equally qualified and eligible to become J-1 apprentices (one serves a four year apprenticeship, earning progressively higher percentages of J-1 pay, before becoming a full-fledged J-1 binder), and Loyd in particular was qualified for a J-1 apprentice position.

Traditionally, and at all times relevant to this litigation, all J-1s were men, all J-2s were women and all GPWs were men. (As of August 14, 1989, there were seventeen J-1 journeymen and apprentices, eleven J-2 journeywomen and apprentices and six GPWs.) Hiring decisions at Phillips were made by the foreman, and the company had a policy of hiring from within for J-1 apprentice positions. The foreman would generally fill these positions by approaching eligible company workers in order of seniority; no written applications were required or submitted by new hires from within the company. The foreman, however, would not approach all non-J-1 bindery employees; rather, only GPWs, never J-2s, were sought out for the J-1 apprenticeships, although both are qualified and supposedly equally eligible. As a result, only men were solicited for vacant or new J-1 positions.

There were three openings for J-1 apprenticeships in the spring and summer of 1989. GPWs were asked in order of seniority if they wanted each position. Two GPWs, all with significantly less seniority than Loyd (in fact all of the GPWs at the time were much less senior than Loyd), and one male from outside the company, sought out because no GPWs were interested at the time (and in spite of Phillips' policy of hiring from within), eventually accepted the slots. Loyd was never approached (nor was any other J-2), and had she been, she would have accepted one of the available J-1 apprenticeships. The obvious consequence of the promotional system still in place in 1989 was that women workers at Phillips could not rise to the higher paying J-1 positions.

The above is uncontested. (Indeed, the parties stipulated to these facts below.) Unsurprisingly, Loyd, after obtaining a right-to-sue letter from the EEOC, sued Phillips, alleging that illegal sex-discrimination denied her a J-1 apprenticeship and identifying Phillips' practice of approaching GPWs and not J-2s as intentionally discriminatory. ¹ After a bench trial, ² the district court found for the defendant, not because it concluded that blanketly favoring GPWs over J-2s for J-1 slots was not a dressed-up gender preference, but because "Plaintiff [did not] inform her superiors that she wished to be considered for a promotion" and "has not shown that she would have applied" had she known of the J-1 openings. Citing Box v. A & P Tea Co., 772 F.2d 1372 (7th Cir.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986), the district judge determined that Loyd therefore had not "established a prima facie case for discrimination based on disparate treatment." ³ Loyd wonders why she should be required to actively pursue a promotion when her male colleagues are not. So do we.

A little background is in order. The expression "prima facie case" in Title VII litigation popularly refers to a common, but not exclusive, see Troupe v. Lord & Taylor, 20 F.3d 734, 736-37 (7th Cir.1994), method of establishing a triable issue of intentional discrimination. Rather than (or in addition to) presenting evidence that the defendant acknowledged that discriminatory intent was behind its treatment of the plaintiff, or less direct evidence of the same such as suspicious timing or inappropriate remarks, or comparative evidence of systematically more favorable treatment toward similarly situated employees not sharing the protected characteristic, a plaintiff may employ an appropriate version of the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) burden-allocating technique to raise an inference of illegal motive. See Troupe, 20 F.3d at 736-37. By establishing a McDonnell Douglas prima facie case, a plaintiff shows that his complained-of employment circumstance "did not result from the two most common legitimate reasons on which an employer might rely ...: an absolute or relative lack of qualification or the absence of a vacancy in the job sought." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 (1977). This "creates a presumption that the employer unlawfully discriminated against the employee," Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), a presumption that can be rebutted, and hence its mandatory force obliterated, by the production of admissible evidence setting forth a legitimate, nondiscriminatory reason for the adverse employment action. See St. Mary's Honor Center v. Hicks, --- U.S. ----, ---- - ----, 113 S.Ct. 2742, 2747-50, 125 L.Ed.2d 407 (1993). Even if the reasons proffered are eventually found by the trier of fact not to be the real reasons for the adverse treatment, to prevail the plaintiff must still carry his ultimate burden of persuasion--to prove by a preponderance of the evidence that an illegal motive was at work. The trier of fact may infer intentional discrimination from its disbelief of the reasons put forward by the defendant and the elements of the prima facie case alone but is not required to do so. See id.; see also Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.1994). The presumption is rebutted by the production, not persuasiveness, of evidence of a nondiscriminatory explanation, and, qua presumption, it drops from the case. If, on the other hand, the defendant does not meet its burden of going forward with evidence to meet the presumption raised by the prima facie case, the presumption would, like any other legal presumption, stand unrebutted and entitle the plaintiff to judgment as a matter of law. See Hicks, --- U.S. at ----, 113 S.Ct. at 2748.

What constitutes the elements of a prima facie case presents a question of law. The basic formula is four-pronged and requires the plaintiff to establish his membership in a protected class, his eligibility for a position, adverse action taken against him with respect to that position, and the continued availability of that position to others of like qualifications. The specifics, however, will inevitably vary and are dependent upon the type and circumstances of employment action under attack. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13; cf. Kralman v. Illinois Dept. of Veterans' Affairs, 23 F.3d 150, 153 (7th Cir.1994). McDonnell Douglas itself dealt with a challenge to a hiring decision made in the context of an application-based hiring scheme; thus the second element required a showing that plaintiff both was qualified and had applied for the position denied to him. Like the first prong of a prima facie case--mandating membership in a protected class--requiring proof that a plaintiff actually applied for the post allegedly wrongly refused reflects standing-like concerns. Cf. Gilty v. Village of Oak Park, 919 F.2d 1247, 1251 (7th Cir.1990). More particularly, it closes the causal gap between the employer's decisionmaking process and the complained-of condition of the employee, thus allowing a tentative inference of bad motive on the employer's part. That is, only if the plaintiff would realistically have been in the running for the job absent the alleged discrimination will the tentative assumption that her current plight was caused by illegal discrimination be justifiable. One who does not apply for a position for which applications are required normally would not get the job in any event. But, of course, it is not true that the causal gap can never be bridged by something short of the formal submission of an application. The factual setting of a dispute, not an abstracted formulation never intended to be all things to all...