Rodriguez v. Anderson

• Decision Date: 26 August 1992
• Docket Number: No. 91-1184,91-1184
• Citation: 973 F.2d 550
• Parties: 59 Empl. Prac. Dec. P 41,736, 23 Fed.R.Serv.3d 953 Vidal RODRIGUEZ, Plaintiff-Appellant, v. Eloise ANDERSON and Mark Hoover, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 550

973 F.2d 550

59 Empl. Prac. Dec. P 41,736, 23 Fed.R.Serv.3d 953

Vidal RODRIGUEZ, Plaintiff-Appellant, v. Eloise ANDERSON and Mark Hoover, Defendants-Appellees.

No. 91-1184.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 6, 1991.

Decided Aug. 26, 1992.

Victor Arellano, Aaron N. Halstead (argued), Lawton & Cates, Madison, Wis., for plaintiff-appellant.

David C. Rice, Asst. Atty. Gen., Richard Moriarty (argued), Wisconsin Dept. of Justice, Madison, Wis., for defendants-appellees.

Before COFFEY and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Plaintiff Vidal Rodriguez, a Mexican Hispanic, brought a civil rights action under 42 U.S.C. §§ 1981, 1988 and 2000e against two supervisory employees of the Wisconsin Department of Health and Social Services [DHSS]. Mr. Rodriguez alleged racial discrimination in the procedures used in hiring the Equal Opportunity Specialist [EOS-7], an affirmative action and civil rights compliance officer position in the DHSS for which the plaintiff applied but was not chosen. Following a four-day jury trial, judgment was entered in favor of the defendants on November 30, 1990. Two weeks later the district court denied plaintiff's motion for a new trial.

Appealing from the judgment and the denial of his motion for new trial, Mr. Rodriguez challenges the trial court's preclusion of evidence during cross-examination. Defendants have moved for dismissal of the appeal or summary affirmance. For the following reasons, we affirm the rulings of the district court and deny the defendants' motion to dismiss.

I. MOTION TO DISMISS

Ms. Anderson and Mr. Hoover have filed a motion to dismiss this appeal or for summary affirmance on the grounds that Mr. Rodriguez failed to file a full transcript of the proceedings before the district court and failed to comply with eight other requirements of the Federal Rules of Appellate Procedure and corresponding local rules. Plaintiff has responded that he filed the complete transcript of the relevant portions of the trial, and that he was protecting the court from the inundation of paper that would occur if every appellant filed a complete transcript.

The background underlying this issue is significant. In response to defendants' motion to dismiss the appeal and in accordance with Fed.R.App.P. 10(e), Mr. Rodriguez filed a motion in the district court for leave to supplement the appellate record with material portions of the transcript erroneously omitted by him. Defendants objected to the motion, criticizing Mr. Rodriguez's unexplained failure to comply initially with the filing requirements and advising the district court that it "should not be required to clutter its files and distract its attention with a needless series of briefs--only because Rodriguez failed initially to fulfill his obligations as appellant." R. at 87 (attachment B at 8). Following a hearing on the issue, the district court granted the motion and allowed Mr. Rodriguez to supplement the record with additional portions of the trial transcript.

It is true that the plaintiff filed only a partial transcript, both before and after the supplementation. He has argued that he included all of the record he deemed necessary, with the transcript "of all evidence relevant to [the] finding or conclusion" he challenges on appeal, in compliance with Fed.R.App.P. 10(b)(1) and (2). Defendants seem to want retribution, in the form of dismissal or summary affirmance, from the unrepentant plaintiff, rather than a full record from which this court can make a meaningful review. ¹

However, both parties failed to follow the dictates of Fed.R.App.P. 10(b)(3), which states:

Unless the entire transcript is to be included, the appellant shall, within the 10 days time provided in (b)(1) of this Rule 10, file a statement of the issues the appellant intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript or other parts of the proceedings to be necessary, the appellee shall, within 10 days after the service of the order or certificate and the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. Unless within 10 days after service of such designation the appellant has ordered such parts, and has so notified the appellee, the appellee may within the following 10 days either order the parts or move in the district court for an order requiring the appellant to do so.

Instead of following this procedure, Mr. Hoover and Ms. Anderson sought dismissal of Mr. Rodriguez's appeal and argued against his motion to supplement the record.

This court has the power to sanction an appellant or even to dismiss the appeal because of his violation of the Federal Rules of Appellate Procedure. Wilson v. Electro Marine Systems, Inc., 915 F.2d 1110, 1117 (7th Cir.1990). It is obvious that an appellate court has no alternative but to dismiss an appeal if the absence of the transcript precludes meaningful review. Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 738 (1990). It is equally clear that we expect and are entitled to strict compliance with the appellate rules and our local rules. Id. at 1068. However, because Mr. Rodriguez complied with this court's order at oral argument to file a complete transcript within seventy-two hours, we can now conduct a meaningful review and are no longer required to render a judicial decision founded on speculation. See id. at 1061. Therefore, even though we note that the parties' failure to comply with Fed.R.App.P. 10(b)(3) has caused inconvenience and delay in resolving this appeal, see Garnes v. Gulf & Western Mfg. Co., 789 F.2d 637, 640 n. 3 (8th Cir.1986), we deny defendants' motion for dismissal or summary affirmance and turn to the merits of this appeal.

II. BACKGROUND

Mr. Rodriguez was one of the top four candidates chosen to interview for the EOS-7 position. The other three were Pat Jackson-Ward (a Black female), Georgina Taylor (an Hispanic female), and Janet Schmidt (a Caucasian female). The position description states that the EOS-7 employee "is responsible for services that cut across geographic functional program boundaries of [the County Departments of Social Services] and local community service agencies, county/tribal boundaries and federal and state laws." Under "Goals and Worker Activities," the description lists the percentage of time that the worker dedicates to particular tasks. Of the listed duties, sixty-five percent is civil rights and affirmative action service work for all minorities and thirty-five percent concerns services for the Black community. ²

The three-person committee interviewing the candidates included defendant Mark Hoover, Director of the Bureau of Management and Budget in the Division of Community Services, who was the immediate supervisor of the EOS-7 position. The panel unanimously chose Pat Jackson-Ward, the person who had held the EOS-7 position on an acting basis for nearly ten months. After considering the panel's recommendation, the achievement history questionnaires of the candidates, and the written examination results, Mr. Hoover recommended Pat Jackson-Ward to defendant Eloise Anderson, Administrator of the DHSS Division of Community Services. Ms. Anderson authorized Mr. Hoover to hire Ms. Jackson-Ward.

Mr. Rodriguez filed this action to challenge the selection of Ms. Jackson-Ward on February 21, 1990. At trial the plaintiff presented to the jury the testimony of thirteen witnesses. On November 30, 1990, the verdict was returned for the defendants. Plaintiff now claims that the trial court erred in precluding him from cross-examining defendant Hoover on two factual issues. We will examine each in turn.

III. STANDARD OF REVIEW

When reviewing a trial court's evidentiary decisions, we accord great deference to its determinations, and will not overturn them in the absence of a clear abuse of discretion. ³ New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1482 (7th Cir.1990). Our review of a trial court's denial of plaintiff's motion for a new trial requires the same standard.

As with all motions for new trial, we review the trial court's decisions [concerning trial conduct] for abuse of discretion, McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 [104 S.Ct. 845, 850, 78 L.Ed.2d 663] (1984), and reverse only if they " 'strike us as wrong with the force of a five-week old, unrefrigerated dead fish.' " Dutchak v. Central States, Southeast and Southwest Areas Pension Fund, 932 F.2d 591, 596 (7th Cir.1991) (applying olfactory standard of clear error, Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988), cert. denied, 493 U.S. 847 [110 S.Ct. 141, 107 L.Ed.2d 100] (1989), to abuse of discretion review).

Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1141 (7th Cir.1992).

IV. DISCUSSION

A. Issue of Mr. Rodriguez's Resume

The first error asserted by the plaintiff is that he was precluded from cross-examining defendant Hoover concerning his review of plaintiff's resume. Mr. Rodriguez contends that he submitted both a resume (app. at 112-13) and "achievement history questionnaire" (app. at 130-35) when applying for the EOS-7 position. He reports in his brief that the defendants offered contradictory statements in their depositions: At first they testified that they had reviewed the candidates' resumes as part of the hiring process; later they stated that they had not seen resumes, but had confused the term "resume" with "achievement history questionnaire." Both in his motion for new trial and on appeal Mr. Rodriguez argues that his precluded cross-examination would have discredited Mr. Hoover's deposition testimony that he had reviewed only the achievement history questionnaire. According to the...