Tyson v. Jones & Laughlin Steel Corp.

• Decision Date: 02 March 1992
• Docket Number: No. 87-2693,87-2693
• Citation: 958 F.2d 756
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 425, 58 Empl. Prac. Dec. P 41,351, 22 Fed.R.Serv.3d 605, 34 Fed. R. Evid. Serv. 1246 Henry C. TYSON, Sr., Plaintiff-Appellant, v. JONES & LAUGHLIN STEEL CORP., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 756

958 F.2d 756

60 Fair Empl.Prac.Cas. (BNA) 425,

58 Empl. Prac. Dec. P 41,351, 22 Fed.R.Serv.3d 605,

34 Fed. R. Evid. Serv. 1246

Henry C. TYSON, Sr., Plaintiff-Appellant, v. JONES & LAUGHLIN STEEL CORP., Defendant-Appellee.

No. 87-2693.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 10, 1991.

Decided March 2, 1992.

H. Nasif Mahmoud, Washington, D.C., for Henry C. Tyson, Sr.

Henry C. Tyson, Sr., pro se.

Lawrence L. Summers, argued, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for Jones & Laughlin Steel Corp.

Before WOOD, Jr., ^* POSNER, and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Having worked for Jones & Laughlin Steel Corp. ("Company"), the defendant-appellee, and its predecessor since January 1960 and having progressed up the non-supervisory, promotion ladder in its electrical maintenance department, Henry C. Tyson, the plaintiff-appellant, applied for a supervisory position in June 1981. The Company denied his application, citing Tyson's poor work-record, volatility, inability to get along with co-workers, and lack of appropriate leadership abilities. Tyson By consent the matter was tried before Magistrate Judge Rodovich in 1984. After trial, the parties entered settlement negotiations, requested and received numerous extensions, but did not reach an agreement. On October 12, 1987, the magistrate judge entered his findings of fact and conclusions of law, and on October 14, 1987, judgment was entered in favor of the Company.

subsequently filed suit in district court, April 15, 1982, claiming he had been denied a promotion because of his race in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq.

Tyson appealed, claiming the court erred in its findings of facts, conclusions of law, and the admission of numerous items of evidence. The Company responds that the appeal is frivolous, having been brought only to delay the ultimate judgment, and asks for sanctions under Fed.R.App.P. 38.

Tyson was employed by the Company's predecessor in January 1960 as a laborer at its Indiana Harbor Works in East Chicago, Indiana. Approximately one year later he was promoted to the electrical maintenance department, where he progressed from electrical helper to motor inspector and, ultimately, to motor repairman. This last position is the highest attainable without promotion to a supervisory position.

From November 1962 through the middle of 1981, when he applied for a position as acting supervisor, Tyson accumulated some 42 disciplinary notices and incident reports. The underlying conduct included (1) improper use of time cards, (2) failure to report for work, (3) sleeping on the job, (4) poor work performance, (5) being outside his assigned work area, (6) relaxing, eating, and reading newspapers on work time, (7) walking off his job without permission, (8) engaging in altercations, (9) refusing to do his assigned job, (10) insubordination to superiors, and (11) physically threatening other employees.

In mid-June 1981 Tyson applied to Kenneth W. Kiser, General Foreman of Mechanical and Electrical Maintenance at the mill, for the position of acting supervisor. Kiser conveyed this request to Kenneth W. Buckley, Assistant General Supervisor, to Claude D. Dratwa, Area Supervisor of Electrical Maintenance, to Calvin E. Baxter, Assistant Superintendent for Maintenance, and to Marvin Skoronski, Mill Superintendent. All four of these supervisors considered that Tyson was not qualified to be a supervisor; thus, none recommended he be promoted to acting supervisor, and he was not.

Each of the four supervisors testified his decision was based on Tyson's record of disciplinary notices and reports and on direct, work-place interactions with him. Buckley considered Tyson volatile, belligerent, too confrontational with both employees and supervisors, and a poor worker. Dratwa considered him a poor worker, unable to get along with co-workers, and overly ready to engage in loud and threatening behavior. Baxter considered him volatile, unable either to direct subordinates or to communicate with supervisors, and as having too little self-control. Skoronski, in turn, considered him a poor worker and lacking the necessary temperament. These views of Tyson's temperament are confirmed by the magistrate judge's statement that "[b]y his general demeanor at trial and by statements contained in his testimony, Tyson confirmed that he is a confrontational individual and may address stressful situations in a threatening manner."

In 1980 and the first half of 1981, the Company employed 35 to 40 workers in the electrical maintenance group at the mill. Six, including Tyson, were black. Of these six black employees, three testified they never sought or were asked to serve in a supervisory position. One was recommended by Kiser, Buckley, Dratwa, and Baxter and asked to be a supervisor during 1980 and early 1981, but he declined. Another one either was asked to be or, at least, discussed the possibility of becoming a supervisor but declined.

Lastly, there was some testimony that Tyson had encountered "normal prejudice" ¹ during the early 1960s. Tyson, himself Tyson's claim arises under Title VII, 42 U.S.C. §§ 2000e et seq. Thus, there is federal jurisdiction, and we have jurisdiction of this appeal under 28 U.S.C. § 1291.

                offered no direct evidence of racial animus by Buckley, Dratwa, Baxter, or Skoronski, the Company supervisors directly involved in making the decision not to promote him.   He admitted that the only supervisor with whom he had ever had "racial problems" was a former supervisor, Bill Metzen.   Metzen, however, did not participate in the decision Tyson challenges as racially motivated
                

Tyson timely filed his notice of appeal, but the appeal was almost immediately stayed because LTV Corp., including its subsidiary, Jones & Laughlin Steel Corp., had filed for bankruptcy. See 11 U.S.C. § 362. On March 22, 1990, the Bankruptcy Court for the Southern District of New York modified the automatic stay to permit this appeal to proceed. See In re Fernstrom Storage and Van Co., 938 F.2d 731 (7th Cir.1991) (automatic stay may be modified to permit resumption of civil suit). We did not receive notice of the bankruptcy court's order from Tyson until May 7, 1990, and then it was only in response to our order for a status report.

Other delays were occasioned by Tyson's failure to conform to the established briefing schedule, which, consequently, was modified several times. His brief was finally filed instanter 51 days after the last due-date and 194 days after the date initially set. The Company, in turn, requested and received one extension of time. That brief was timely filed, and this appeal proceeded to oral argument. Tyson's attorney, however, failed to appear. Nonetheless, we proceed on the record and the briefs to the three issues Tyson raises in this appeal.

First, Tyson seeks reversal of a number of the court's findings of fact and conclusions of law. In particular he asserts the court erred in determining the credibility of witnesses and in weighing the evidence.

We review a district court's findings of fact and its conclusions of law, where those conclusions comprise application of law to fact, under the same standard. David Berg and Co. v. Gatto International Trading Co., 884 F.2d 306, 309 (7th Cir.1989). Moreover, as is the converse of the case here, "a finding of intentional discrimination is a finding of fact." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The appropriate standard is the clearly erroneous standard of Fed.R.Civ.P. 52(a). Daniels v. Essex Group, Inc., 937 F.2d 1264, 1268 (7th Cir.1991); Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. We do not reweigh each picayune discrepancy raised by the appellant, and we do not "retry the case in order to test the credibility of the various witnesses who testified." Daniels, 937 F.2d at 1268. Proper application of Rule 52(a) requires deference to the district court's finding of fact, which can be found clearly erroneous only when " 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Where "the district court's account of the evidence is plausible in light of the record viewed in its entirety," we may not reverse merely because we, as the trier of fact, would have "weighed the evidence differently." Id. 470 U.S. at 574, 105 S.Ct. at 1511. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. (citations omitted; emphasis added). One further point: "This court has time and again recognized the discretion that a trial judge has in 'weighing the evidence, and choosing from among conflicting factual inferences * * * and he has the inherent right to disregard the testimony of any witness when he is satisfied that the witness is not telling the truth * * *.' " Daniels, 937 F.2d at 1268 (citing Gianukos v. Loeb Rhoades & Co., 822 F.2d 648, 652- Here Tyson asks us to do precisely that which we may not. He asks us to redetermine the credibility of the Company's witnesses and, presumably, his own, to reweigh the evidence, and, accordingly, to reverse the district court's findings-of-fact number 3, 5, 6, 8 through 12, and 15 through 18 and conclusions-of-law number 12 through 16. Tyson supports his credibility challenge by claiming the Company's witnesses were biased and that their testimony was imprecise or conflicting--conflicting, that is, with his view of his own witnesses' testimony. His challenge to the court's weighing of evidence relies only upon testimony he claims to have offered and upon self-serving claims of effective cross-examination. But...