Russell v. Acme-Evans Co.

• Decision Date: 19 April 1995
• Docket Number: No. 94-3008,ACME-EVANS,94-3008
• Citation: 51 F.3d 64
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 559 John T. RUSSELL, Plaintiff-Appellant, v.COMPANY, ADM Milling Company, and Archer-Daniels-Midland Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 64

51 F.3d 64

67 Fair Empl.Prac.Cas. (BNA) 559

John T. RUSSELL, Plaintiff-Appellant, v. ACME-EVANS COMPANY, ADM Milling Company, and Archer-Daniels-Midland Company, Defendants-Appellees.

No. 94-3008.

United States Court of Appeals Seventh Circuit.

Argued Jan. 12, 1995.

Decided March 20, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied April

19, 1995.

Richard L. Darst (argued), Mantel, Cohen, Garelick, Reiswerg & Fishman, Indianapolis, IN, for plaintiff-appellant.

Kenneth J. Yerkes (argued), Barnes & Thornburg, Indianapolis, IN, for defendants-appellees.

Before POSNER, Chief Judge, ROVNER, Circuit Judge, and MORAN, District Judge. ^*

POSNER, Chief Judge.

In 1975 the plaintiff in this Title VII suit, John Russell, was hired as a laborer by the principal defendant, Acme-Evans Company, which owns a grain elevator in Indianapolis. The elevator is used both to store wheat and to manufacture it into flour. Russell (who still works in the grain elevator) became a "mill sweeper" in 1977. The job involved keeping the floor of the elevator clean. He liked the job. It gave him the run of the plant, and is considered light work. The mill sweeper does not just use a broom; he uses a machine--we suppose some grand elaboration of a vacuum cleaner--to do the sweeping.

In 1990, when Russell had worked longer at the plant than almost anyone else, new supervisors, who were white (as had been the old ones), began giving Russell warnings for failing to wash his hands and for other infractions of work rules. Two years later Russell, who was now 59 years old, was transferred from his job as mill sweeper to the job of "skid wrapper." A more strenuous and monotonous job, it required Russell to wrap heavy plastic sheets around loads ("skids") of bags of flour. He claims that he was transferred to make room for a young white man who wanted to be "downgraded" from assistant miller to mill sweeper. Although assistant miller is a more responsible and even lighter job--the assistant miller helps the miller operate the large machine that grinds wheat into flour, and the machine is operated by pushing buttons--and pays more ($9 an hour versus $8 for a sweeper), apparently it's not uncommon for workers to want to downgrade to the sweeper's job, perhaps because it is less stressful, or perhaps because workers enjoy having the run of the mill.

Shortly after Russell was transferred to the skid-wrapper job, he applied to become an assistant miller but was turned down in favor of a young white man. The following year Russell sought to work overtime as a member of the "blow-down" crew. This is a four-person crew that cleans the seven-story grain elevator. One of the men in the crew is lowered in a chair by one of the other men, and he uses an air hose (fed to him by the third member of the crew) to clean bugs and other debris from the walls of the elevator, while the fourth member of the crew shines a light on the work area. The members of the crew rotate through the four positions. The company would not permit Russell to join the blow-down crew, instead giving this opportunity for overtime work to younger white men. Russell claims that the denial of this opportunity, together with the transfer to skid wrapper and the refusal to promote him to assistant miller, was motivated by his race and age. The district court granted summary judgment for the company.

The company had submitted affidavits that offered nondiscriminatory reasons for the three employment actions of which Russell complains. According to these affidavits, Russell had been transferred to the skid wrapper's job because (among other reasons), in light of his disciplinary infractions, he required closer supervision than was feasible for a sweeper, who as we said circulates through the entire plant. He had been turned down for the assistant miller's job because he was not trained for it and the white man who was given the job "demonstrated a mechanical aptitude" and "worked well with others"; and a black man had been offered the job before the white man, but had turned it down. Russell had been turned down for the blow-down crew because he already was getting more overtime than most of the workers (although the collective bargaining agreement did not require that opportunities for overtime be allocated by seniority), and because at 190 pounds he was too heavy for the chair position.

To survive a motion for summary judgment, Russell had to counter the company's affidavits with materials of evidentiary quality (such as affidavits or depositions, see Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994)) that created an issue of fact as to whether the reasons offered by the company were sincere--in Title VII lingo, not "pretextual"--or other, discriminatory reasons had played a role in motivating the actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981); Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir.1992). All that Russell offered to meet this burden were his deposition and a subsequent affidavit designed, it appears, to retract or explain away concessions that he had made in his deposition. We have been highly critical of efforts to patch up a party's deposition with his own subsequent affidavit. E.g., Pries v. Honda Motor Co., 31 F.3d 543, 545 (7th Cir.1994); Lovejoy Electronics, Inc. v. O'Berto, 873 F.2d 1001, 1005 (7th Cir.1989); Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 520-21 (7th Cir.1988); Diliberti v. United States, 817 F.2d 1259, 1263 (7th Cir.1987); see also Wilson v. Westinghouse Electric Corp., 838 F.2d 286, 289 (8th Cir.1988). Almost all affidavits submitted in litigation are drafted by the lawyers rather than by the affiants, DF Activities Corp. v. Brown, 851 F.2d 920, 923 (7th Cir.1988); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 659 (7th Cir.1991) (en banc), and a comparison of the diction of Russell's deposition with that of the affidavit makes clear that his affidavit is no exception. Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy. Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993); Adelman-Tremblay v. Jewel Cos., supra, 859 F.2d at 520-21; Babrocky v. Jewel Food Co., 773 F.2d 857, 861-62 (7th Cir.1985).

Disregarding, then, those parts of Russell's affidavit that contradict, as distinct from merely clarifying or augmenting, his deposition, we have a case, common under Title VII, in which the only evidence submitted in opposition to the employer's motion for summary judgment is the plaintiff's own testimony. Evidence required to contradict the employer's evidence is rarely within the competence of the plaintiff to give, because of the rule that a witness (other than an expert witness) is not allowed to testify to matters outside his personal knowledge, Fed.R.Evid. 602, 701(a); Note of the Advisory Committee on 1972 Proposed Rule 701; Visser v. Packer Engineering Associates, Inc., supra, 924 F.2d at 659; Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989), as well as because of other limitations on the admissibility of evidence, such as the hearsay rule. See, e.g., Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir.1987). For example, Russell's effort to establish the presence of a racial motive (he made no effort to establish that his age had been a motive) for the actions that he claims were discriminatory depended heavily on hearsay evidence concerning racial slurs allegedly made by white supervisors to other black workers. This evidence is not claimed to fall within any of the myriad exceptions to the hearsay rule, and hence could not be considered in the summary judgment proceeding. Russell's first-hand experience of having been threatened fifteen years earlier by a coworker with having a shotgun shoved up his "black ass" was too tenuously related to the alleged discriminatory actions by supervisors many years later who had not even been employed at the plant during the earlier incident to create, or even to contribute to creating, a genuine issue of fact concerning the existence of a racial motive for those actions. Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir.1990); McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686-87 (7th Cir.1991); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir.1990).

The focus of the deposition (and affidavit) in any event was to show not that a racial motive had been operative but that a jury (trial by jury is now available in Title VII suits, and was demanded by Russell) might conclude that the reasons offered by the company for the employment actions of which he complains were pretexts. If "pretext" meant simply mistake, a plaintiff's testimony could go far to create a genuine issue of material fact in these cases. But neither in ordinary language nor in the law does it mean a mistake. It means a lie, specifically a phony reason for some action. To say that it was only a "pretext" that Russell was transferred to the wrapper's job because he needed closer supervision is to say that the company is lying when it proffers that reason for the transfer; the true reason was different. Visser v. Packer Engineering Associates, Inc., supra, 924 F.2d at 657; Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559 (7th Cir.1987).

It is unusual for an employee to be able to testify from his personal knowledge to whether the employer was being honest about why it took some adverse action against him. Not in every case, of course; if the company had claimed to have transferred Russell because he confessed to stealing company property, his denial of having confessed would create a genuine issue of material...