Pollard v. Rea Magnet Wire Co., Inc.

• Citation: 824 F.2d 557
• Decision Date: 03 August 1987
• Docket Number: No. 86-2935,86-2935
• Parties: 44 Fair Empl.Prac.Cas. 1137, 43 Empl. Prac. Dec. P 37,217 Oliver POLLARD, Jr., Plaintiff-Appellee, v. REA MAGNET WIRE COMPANY, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 557

824 F.2d 557

44 Fair Empl.Prac.Cas. 1137,

43 Empl. Prac. Dec. P 37,217

Oliver POLLARD, Jr., Plaintiff-Appellee, v. REA MAGNET WIRE COMPANY, INC., Defendant-Appellant.

No. 86-2935.

United States Court of Appeals, Seventh Circuit.

Argued May 20, 1987.

Decided July 13, 1987.

Rehearing and Rehearing En Banc

Denied Aug. 3, 1987.

Marlene W. Jackson, Aluminum Co. of America, Legal Dept., Pittsburgh, Pa., for defendant-appellant.

Steven L. Jackson, Miller & Stewart, Ft. Wayne, Ind., for plaintiff-appellee.

Before FLAUM, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Oliver Pollard, a body builder holding the title "Mr. Fort Wayne", asked his employer to let him take time off during the week of July 23, 1984, so that he could attend a body-building event in Las Vegas. Rea Magnet Wire Co., the employer, said no. On July 23 Pollard did not appear for work. He called a supervisor and reported that he had "personal reasons" and an ankle injury. Pollard or his sister called in on each of the next four days, telling Rea that Pollard would not appear but not giving a reason. The management of Rea--suspicious not only because of the request for leave but also because during an earlier absence on account of a back injury Pollard had been seen lifting weights in a local gym (for which he was suspended three days)--called Pollard into the office before the start of work on July 30. Pollard said that he had been absent because of an ankle injury but did not bring an explanation from his physician. He was suspended on the spot and later fired. The district court held a bench trial and concluded that Pollard was unable to work the week of July 23 because of an injury. He ordered Rea to pay Pollard almost $19,000 for lost wages and interest and $5,000 for emotional distress.

If the only question were whether Pollard was injured, we would accept the judge's conclusion without hesitation. But no federal rule requires just cause for discharges. NLRB v. Loy Food Stores, Inc., 697 F.2d 798, 801 (7th Cir.1983). Pollard collected unemployment insurance after the state concluded that Rea lacked good cause to fire him, and he collected $2,000 from his union after the union negligently failed to take Pollard's case to arbitration. The only conceivable federal claim is based on Pollard's race. He is black, and he filed this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Sec. 1981. The district court found that Rea intentionally discriminated against Pollard because of his race. Unfortunately for Pollard, there is no evidence of discrimination as opposed to mistake.

Once the trial in a disparate treatment case is over, the question is whether the employer intentionally discriminated against the employee on account of race or another characteristic covered by the statute. The employee bears the burden on this subject, and the rules governing prima facie cases, order of proof, responses, and so on no longer matter. Postal Service v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Morgan v. South Bend Community School Corp., 797 F.2d 471, 480 (7th Cir.1986). Pollard did not have direct evidence of discrimination. (The court excluded as hearsay the only proffer, and this was not erroneous.) Pollard also produced none of the usual forms of indirect evidence, such as statistics or comparable cases. Nothing in the record of the case hints that Rea discharges or disciplines black employees more frequently or more severely than white employees. So far as the record shows, no white employee has ever missed five consecutive days without medical documentation and been allowed to remain. Indeed, the collective bargaining agreement between Rea and the union provides that an employee who misses five consecutive days "without permission" "shall" be fired. The only other employees discussed at the trial were two white workers who missed five or more days and were fired. Cf. Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir.1985) (finding much stronger comparative evidence insufficient as a matter of law).

The district court's decision rests on the proposition that if the employer offers a pretextual explanation for its conduct, this permits an inference of discrimination. Such an inference may be drawn. Benzies v. Illinois Department of Mental Health and Developmental Disabilities, 810 F.2d 146, 148 (7th Cir.1987). If the employer is trying to hide its real reason, that effort--coupled with the evidence making up the employee's prima facie case--may convince the trier of fact that the real reason needed to be hidden and therefore probably was discriminatory. See also Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). When the reason advanced at trial is nothing but a "pretext for discrimination", Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), to show "pretext" is to show "discrimination".

Showing that the employer dissembled is not necessarily the same as showing "pretext for discrimination", however; as we stressed in Benzies, it may mean that the employer is trying to hide some other offense, such as a violation of a civil service system or collective bargaining agreement. See also, e.g., Maguire v. Marquette University, 814 F.2d 1213, 1216-18 (7th Cir.1987); Sherkow v. Wisconsin, 630 F.2d 498, 502 (7th Cir.1980) (both stressing that the plaintiff must show not only a false reason but also a causal chain in which race or another forbidden criterion plays a dispositive role). It is easy to confuse "pretext for discrimination" with "pretext" in the more common sense (meaning any fabricated explanation for an action), and to confound even this watery use of "pretext" with a mistake or irregularity. That is what happened here. The district judge did not conclude that Rea had advanced a "pretext for discrimination"; the court found instead that Rea did not have good cause to fire Pollard. Such a finding does not show pretext in any use of that term, which requires hiding the truth. If you honestly explain the reasons behind your decision, but the decision was ill-informed or ill-considered, your explanation is not a "pretext".

Rea's managers suspended Pollard on July 30 and tried to find out from airlines and tourist bureaus whether Pollard went to Las Vegas. The investigation went nowhere. Rea then fired Pollard anyway, because of the confluence of his request for leave, his weightlifting during an earlier absence, and his failure to produce a physician's report. The district court found that Susan Vachon, Rea's personnel manager who fired Pollard, "believed that Pollard took the week of July 23, 1984 off to attend the body building event." Among the related findings: "Vachon did not believe that Pollard's ankle was injured." "The management at Rea did not believe that Pollard had an ankle injury" (footnote omitted). "The management of Rea did not believe Pollard because of an earlier incident involving a back injury, and because Pollard's injury coincided with requested leave, which was denied." "The evidence shows that Pollard's reason for being absent was true, despite Vachon's belief to the contrary." In other words, the...