Soria v. Ozinga Bros., Inc.
| Decision Date | 07 April 1983 |
| Docket Number | No. 81-2033,81-2033 |
| Citation | 704 F.2d 990 |
| Parties | 31 Fair Empl.Prac.Cas. 720, 31 Empl. Prac. Dec. P 33,517 Dennis L. SORIA, Plaintiff-Appellant, v. OZINGA BROS., INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William D. Snapp, Jenner & Block, Chicago, Ill., for plaintiff-appellant.
Edward P. Freud, Chicago, Ill., for defendant-appellee.
Before CUMMINGS, Chief Judge, and WOOD and ESCHBACH, Circuit Judges.
This Title VII matter comes before us on appeal from the district court's finding after a bench trial that plaintiff Dennis Soria, a Catholic of Italian background, was not discharged from his employment as a cement truck driver with defendant Ozinga Bros., Inc., a company largely owned and managed by individuals who were of traceable Dutch ancestry or members of the Christian Reformed Church, or both, due to his differing religion or national origin. On appeal, plaintiff chiefly argues that the district court erred in its refusal to consider as decisive certain statistical evidence offered by him linking company disciplinary patterns and religion and national origin. Plaintiff also contends that the district court erred in refusing to consider as relevant statistical evidence concerning the ethnic composition of defendant's work force, and claims that the court erred in certain findings of fact. Because we find no significant error in the district court's consideration of the evidence and no error at all in its ultimate findings, we affirm.
Defendant Ozinga Bros., Inc. (the company) is a small family-owned and -operated business which prepares and delivers building materials such as ready-mix concrete. It was founded by a Dutch immigrant whose son and three grandsons occupy the crucial management positions. Of the other managers, one is of Italian origin and two others are affiliated with the Catholic church. Although roughly half the company's employees are of traceable Dutch ancestry or Christian Reformed Church members (CRC), there was no allegation that plaintiff was discriminated against in regard to hiring or promotion. Instead, the sole issue at trial was whether plaintiff would not have been fired but for his non-Dutch, non-CRC background, or whether, as the company claimed, he was fired solely for persistently uncooperative and hostile behavior toward management and carelessness and irresponsibility in performance of his duties throughout his five years of employment, culminating in two serious truck accidents in the several days prior to his final discharge.
The evidence adduced at trial established a lengthy history of job-related problems between plaintiff and the company. The company's chief truck dispatcher and supervisor testified that during the 1977 season, plaintiff was the only cement truck driver with whom he experienced significant difficulty in the assignment of deliveries. 1 Indeed, at least one contractor-customer had requested that the company not send plaintiff to its job-site because of plaintiff's uncooperative attitude. There was also testimony that on several occasions, plaintiff displayed a careless attitude toward his delivery obligations. For example, the company's dispatcher testified that even during busy periods, plaintiff several times stated in mid-afternoon that he would not accept any more deliveries for the remainder of the day; when queried as to the reason for his early departure, plaintiff was either silent or responded, at least on one occasion, "Well, I'll be sick after this [delivery]." In The supervisor's testimony was buttressed by that of a manager of Italian origin who noted that, while Soria may have had a "roughly average" record in regard to vehicle maintenance, the plaintiff manifested a "[v]ery unconcerned" and "lackadaisical" attitude toward specific problems noted to him. This picture was confirmed by one of plaintiff's witnesses, a fellow driver of Irish Catholic origin, who noted that plaintiff had a bad attitude at times and argued with the company's dispatcher and customers.
addition, the dispatcher testified that, as supervisor, his attempts to communicate with the plaintiff were unavailing, as plaintiff repeatedly ignored him or walked away. Further attempts to address this communications problem were rebuffed with the same behavior.
During plaintiff's final ten days of employment, he was involved in two serious accidents. Plaintiff's conduct in connection with these accidents apparently crystallized the company's long-standing dissatisfaction with plaintiff and served as a catalyst for his final discharge. In the first of these accidents, plaintiff, failing to watch his right hand mirror, drove his truck into a large ditch. Plaintiff and an assisting driver attempted to remove the truck from the ditch, but in so doing caused it to tip over, causing great damage. A member of company management arrived at the scene and concluded that the accident was due to plaintiff's carelessness. After consultation with other management members, plaintiff was laid off for the balance of that week. More important than the tip-over accident itself (other drivers employed by the company had been involved in similar accidents), the company testified, was the fact that the plaintiff belligerently denied responsibility for the accident and offered what management considered to be inappropriate excuses (e.g. that the accident was caused by the distraction of another car and the failure of the contractor to cooperate). 2 When a manager admonished plaintiff that he was responsible for control over his vehicle despite the claimed distractions, plaintiff "proceeded to tell [him] that he didn't like what [he] was saying and that if [he] didn't back off, that he was going to straighten [him] out." Plaintiff offered no testimony to rebut this recollection. 3 Even though such hostility was unprecedented in the manager's experience, plaintiff was allowed to return to work the following week.
The second accident occurred ten days later, when plaintiff ran his truck into a viaduct, causing damage to the cement-mixing barrel. Plaintiff again denied responsibility for the accident, claiming that he did not know the height of his truck, and that a company dispatcher had concurred in the choice of the route taken. The first excuse compounded the company's belief in plaintiff's irresponsibility, since the height of the truck was a readily ascertainable fact which other company drivers had taken the trouble to learn. At trial, the company dispatcher also denied having concurred in plaintiff's delivery route, and noted that such consultation was infrequent. Moreover, plaintiff appeared to acknowledge the depth of his dereliction and its natural consequences when, in returning to the company yard, he told the dispatcher, "This will probably be my last load, I just hit a viaduct." When a company manager met with plaintiff after the accident and heard the plaintiff's excuses and plaintiff's statement that he refused to drive the type of truck involved in the accident again, the manager rebuked him for his lack of responsibility and carelessness. Plaintiff was indefinitely One week after his discharge, plaintiff filed a grievance with a labor-management grievance committee empowered to reinstate him, 4 in which, significantly, he did not allege any religious or ethnic discrimination. The committee rejected his demand to be reinstated. Several months thereafter, plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), claiming discrimination on the basis of his Italian ancestry and Catholic affiliation; the EEOC rejected his claim. Finally, plaintiff instituted this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a)(1), changing his discrimination theory to allege that he was victimized as a non-Dutch, non-CRC affiliated employee rather than specifically as an Italian Catholic.
laid off, and after a consultation among management in which the plaintiff's history of noncooperation and refusal to accept basic responsibility was discussed, it was decided to permanently discharge plaintiff.
At trial, plaintiff attempted to demonstrate unlawful discrimination against him through two doctrinal avenues--"disparate impact" and "disparate treatment." First, he alleged that the company's informal, subjective system of discipline resulted in markedly more severe discipline being applied to non-Dutch and non-CRC drivers. Second, he alleged that his specific discharge resulted from discriminatory treatment based on his non-Dutch, non-CRC background. To establish his claim of disparate impact and to paint as pretextual the company's claim of legitimate, nondiscriminatory discharge, plaintiff relied chiefly upon comparative and statistical evidence purporting to demonstrate worse treatment of non-Dutch, non-CRC drivers. The district court, however, found the statistical data presented by both sides irreparably flawed and of "minimal assistance;" it also found the comparative evidence indeterminate. The district court concluded that plaintiff had proven neither disparate impact nor disparate treatment. Instead, the district court found that plaintiff had been discharged for "careless and unsafe attitudes, noncooperation with management, and lack of responsibility toward his job." From that determination, plaintiff appeals.
To establish unlawful disparate impact, the plaintiff must point to employment practices that are based upon facially neutral criteria but that in fact fall more harshly on one group and cannot be justified by business necessity; no proof of discriminatory motive is necessary. Teamsters v. United States, 431 U.S. 324, 336 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The company challenges at the outset the application of the disparate impact paradigm to a disciplinary...
To continue reading
Request your trial
-
Minority Police Officers v. City of South Bend
...39 L.Ed.2d 630 (1974); Coates v. Johnson & Johnson, supra; Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.1985); Soria v. Ozinga Bros., Inc., 704 F.2d 990 (7th Cir.1983); Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir.1976). The plaintiffs in the case before the court have not presen......
-
Shidaker v. Carlin
...of its promotion standards. These determinations are best left in the discretion of the district court on remand, Soria v. Ozinga Bros., 704 F.2d 990, 995 n. 6 (7th Cir.1983), and are not properly before us for The district court correctly found that the demotion procedure was in adequate c......
-
Griffin v. Board of Regents of Regency Universities
...determination of whether the resultant numbers are sufficiently probative of the ultimate fact in issue." 15 Soria v. Ozinga Brothers, Inc., 704 F.2d 990, 995 n. 6 (7th Cir.1983). The district court did not err in its preference for statistics that control for the possession of a doctorate ......
-
US v. Lansdowne Swim Club
...See Rizzo, 466 F.Supp. at 1228-32; see also Fudge v. Providence Fire Dept., 766 F.2d 650, 657-58 (1st Cir.1985); Soria v. Ozinga Bros., 704 F.2d 990, 995 (7th Cir.1983); Eubanks v. Pickens-Bond Constr. Co., 635 F.2d 1341, 1347-48, 1350 (8th Cir.1980); Harper v. Trans World Airlines, Inc., 5......