Sample v. Aldi Inc., 94-2954

Citation61 F.3d 544
Decision Date18 August 1995
Docket NumberNo. 94-2954,94-2954
Parties68 Fair Empl.Prac.Cas. (BNA) 759, 66 Empl. Prac. Dec. P 43,678 Barkley E. SAMPLE, Plaintiff-Appellant, v. ALDI INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Larry D. Drury, Chicago, IL, Robert A. Holstein, Aron D. Robinson (argued), Bruce J. Goodhart, Allyson Bouldon, Holstein, Mack & Klein, Chicago, IL, Ben Barnow, Alan Marc Goldberg, Albert Cueller, Barnow & Hefty, Chicago, IL, for plaintiff-appellant.

Mark E. Furlane (argued), Deena S. Newlander, Alan S. King, Gardner, Carton & Douglas, Chicago, IL, for defendant-appellee.

Before BAUER and MANION, Circuit Judges, and STIEHL, District Judge. *

BAUER, Circuit Judge.

Barkley E. Sample is a person of African ancestry. Sample was hired by Aldi Inc., in April 1990 as a district supervisor trainee in Aldi's Batavia, Illinois, division. Sample was promoted to district supervisor for the Batavia division in October 1990 following completion of his training. A district supervisor is responsible for the operation of between three to five Aldi food stores within one of Aldi's nine divisions. Sample was responsible for stores in Chicago as a district supervisor.

Aldi has two levels of management above the district supervisor positions. The first level is director positions for administration, store operations, purchasing, real estate, and warehousing. A district supervisor reports to a director of store operations. Aldi has a general manager position in each division above the director positions. A general manager is responsible for the overall operation of the division and reports to the president of Aldi. The general managers have exclusive authority with respect to the hiring and termination of district supervisors.

Director positions are filled by the promotion of district supervisors or the transfer of director-level employees within Aldi. A district supervisor is only eligible for promotion to a director position upon the recommendation of the general manager of his division. A district supervisor is promoted to director by the president of Aldi after consulting with the general manager who recommended the district supervisor and the general manager to whom the director will report.

Scott Kornegay was the general manager of the Batavia division while Sample was employed with Aldi. Greg Hofstetter was the director of store operations who supervised Sample as a district supervisor.

On October 2, 1991, Marc Umscheid, a white district supervisor in the Batavia division, was promoted to director of store operations in the division. Sample had been a district supervisor longer than Umscheid, yet Umscheid was the only district supervisor recommended for promotion by Kornegay. On December 31, 1991, Kim Karrick, another white district supervisor in the Batavia division, was promoted to director of administration in the division. Karrick also had less experience than Sample as a district supervisor, and Kornegay again did not recommend Sample for the promotion. Sample was fired by Kornegay on March 17, 1992.

Sample filed a charge of racial discrimination in employment with the Equal Employment Opportunity Commission ("EEOC") within 180 days of his termination as required by 42 U.S.C. Sec. 2000e-5(e)(1). The EEOC declined to bring an action on Sample's behalf and issued Sample a right-to-sue letter.

Sample then filed this suit in the district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and under 42 U.S.C. Sec. 1981, on behalf of a class of past and present African-American Aldi employees "who are, have been, continue to be, or may in the future be" discriminated against by Aldi because of their race. Sample's individual claims alleged that Aldi's two failures to promote him and his termination were motivated by his race. The district court granted Aldi's motion to dismiss Sample's class allegations because Sample had failed to meet the numerosity requirement of Federal Rule of Civil Procedure 23(a)(1). The district court granted summary judgment to Aldi on Sample's individual claims.

We review the district court's grant of summary judgment de novo, applying the same standards as the district court. We view the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). Summary judgment is appropriate if the record demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Sarsha, 3 F.3d at 1038. If the non-moving party bears the burden of proof on an issue, however, that party may not rest on the pleadings and must instead show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-26, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). We will affirm the judgment of the district court "only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict." Sarsha, 3 F.3d at 1038; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). A party is entitled to a directed verdict "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.

Title VII makes it "an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] color." 42 U.S.C. Sec. 2000e-2(a)(1). Section 1981 of title 42 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State ... to make and enforce contracts ... as is enjoyed by white citizens." This right includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. Sec. 1981(b).

Sample can prevail on his Title VII and Sec. 1981 claims in one of two ways. Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 419, 126 L.Ed.2d 365 (1993). Sample can meet his burden of proof by offering direct proof of discriminatory intent. Id. (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). Sample has not chosen this evidentiary path and has instead relied on the indirect, burden-shifting method of proof first set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for Title VII cases, and also applicable to claims of racial discrimination under 42 U.S.C. Sec. 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989).

Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of racial discrimination by a preponderance of the evidence. St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254, 101 S.Ct. at 1094-95; see Hicks, --- U.S. at ----, 113 S.Ct. at 2747. The McDonnell Douglas presumption places upon the defendant the burden of producing "evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Hicks, --- U.S. at ----, 113 S.Ct. at 2748. If the defendant meets this burden of production, the McDonnell Douglas presumption "drops from the case" and is no longer relevant. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10; see Hicks, --- U.S. at ----, 113 S.Ct. at 2749. The plaintiff then must prove by a preponderance of the evidence that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. As the Supreme Court repeatedly stressed in Hicks, " '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.' " Hicks, --- U.S. at ----, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093).

To establish a prima facie case of racial discrimination for failure to promote, Sample must show that (1) he is a member of a protected group; (2) he applied for and was qualified for the position sought; (3) Aldi rejected him for the position; and (4) Aldi granted the promotion to a person whose race was different than Sample's, but who had similar or lesser qualifications. Von Zuckerstein, 984 F.2d at 1472-73. To establish a prima facie case of racial discrimination for termination, Sample must show that (1) he is a member of a protected group; (2) he was doing his work well enough to meet Aldi's legitimate expectations; (3) he was discharged despite his performance; and (4) Aldi sought a replacement for him. Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994). Aldi may satisfy its burden of production under McDonnell Douglas without waiving its challenge to Sample's prima facie case. E.g., Kirk v. Federal Property Management Corp., 22 F.3d 135, 138-39 (7th Cir.1994).

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