Allen, Annette v. Chicago Transit ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2101
ANNETE M. ALLEN, SHELLEY S. BURNETTE, RAHPRE
NEWBERRY, and EARNEST LEONARD,
Plaintiffs-Appellants,
v.
CHICAGO TRANSIT AUTHORITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 7614—Suzanne B. Conlon, Judge.
____________
ARGUED SEPTEMBER 24, 2002—DECIDED JANUARY 6, 2003
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Four black employees of the Chi-
cago Transit Authority charge racial discrimination (two
of the plaintiffs also charge retaliation for complaining
about discrimination) by their employer in violation of
Title VII and related statutes. The district court granted
summary judgment for the defendant.
We begin with the two women, Allen and Burnette, per-
sonnel specialists who sought promotion to manage-
rial positions in their department and were passed over
2 No. 01-2101
in favor first of a white man named Lebron in 1995 and
two years later in favor of another white man, named
Reilly, who had only recently become a personnel special-
ist. Lebron’s promotion was not within the 300-day stat-
ute of limitations for a Title VII claim, 42 U.S.C. § 2000e-
5(e)(1), and so the district court held the women’s complaint
about his being promoted ahead of them to be time-barred.
That was an error. Until they were again passed over in
favor of a white person, they had no reason to believe that
race had played a role, for Lebron unlike Reilly was not a
surprise choice. Equitable tolling delays the running of the
statute of limitations until the plaintiff by exercise of due
diligence should have realized that he had a claim. See
National R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2072
(2002); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132,
1143-44 (7th Cir. 1992); Brennan v. Daley, 929 F.2d 346, 349
(7th Cir. 1991). That did not occur in this case until Reilly’s
promotion.
The general manager of the department, Tapling, made
the appointments and was the defendant’s key witness with
regard to the Allen and Burnette claims. Regarding Lebron’s
promotion, she testified that Allen’s lack of a master’s
degree precluded her from consideration for the job—yet
on the interview form Tapling had rated Allen’s edu-
cation “suitable” for the job. Regarding the Reilly promo-
tion, Tapling told investigators from the CTA’s affirmative
action unit and the Illinois human rights agency that al-
though the two women had far more experience than
Reilly, having been personnel specialists for a decade or
more and he for just two years, he had more initiative
as shown by his having worked overtime on at least 16
days in a two-month period in order to learn a new photo
ID computer system, whereas Allen and Burnette were
reluctant to work overtime. However, the CTA’s time
sheets showed that Reilly stayed late on only three days
No. 01-2101 3
during the two-month period, and all were days on which
he had started work late, and that Allen and Burnette put
in at least as much extra time as Reilly. Tapling’s boss tes-
tified that Reilly got the job because he interviewed better
than Allen or Burnette—but Tapling testified that there
were no interviews.
There is more. Tapling had told the investigators that she
had passed over Allen because of too many absences, lack
of maturity, and lack of a master’s degree (which Reilly
had). But at her first deposition she testified that Allen’s
absences had played no role in her decision; and the CTA’s
records did not sustain the charge that Allen had unex-
cused absences. At her second deposition, Tapling back-
tracked, saying she was no longer confident that absences
had not been a factor in her passing over Allen. In a subse-
quent affidavit, she belatedly accused Allen of excessive
absenteeism. Regarding Allen’s maturity, she said that
once Allen had come crying to her after being abused by
another employee—but Allen was not at work on the day
of the alleged abuse.
Although Reilly had a master’s degree and the women
did not, the master’s degree was not in human relations
but in communications, and the managerial job to which
Tapling appointed him did not require a master’s degree.
Tapling accused Burnette of “theft” for having run up a bill
of $140 for personal long-distance calls. But Burnette was
not disciplined (she reimbursed the CTA), and another
employee who committed the identical “theft” and also
was not disciplined for it was promoted.
When a qualified black person is passed over for a pro-
motion in favor of a white, and the employer offers a
noninvidious reason that a jury would be free to disre-
gard because the genuineness of the reason has been chal-
lenged by substantial evidence, summary judgment for the
employer is improper. E.g., Reeves v. Sanderson Plumbing
4 No. 01-2101
Products, Inc., 530 U.S. 133, 146-49 (2000); Traylor v. Brown,
295 F.3d 783, 790 (7th Cir. 2002); Stalter v. Wal-Mart Stores,
Inc., 195 F.3d 285, 291-92 (7th Cir. 1999); Mills v. Health Care
Service Corp. 171 F.3d 450, 458 (7th Cir. 1999). Tapling
offered noninvidious reasons for promoting Lebron and
then Reilly rather than either Allen or Burnette, but a jury
would be entitled to find that the reasons she offered
were lies. When a witness repeatedly contradicts himself
under oath on material matters, and contradicts as well
documentary evidence likely to be accurate (the time sheets,
for example, whose reliability was attested by several
witnesses), the witness’s credibility becomes an issue for
the jury; it cannot be resolved in a summary judgment
proceeding. Perfetti v. First National Bank, 950 F.2d 449,
456 (7th Cir. 1991); Cameron v. Frances Slocum Bank & Trust
Co., 824 F.2d 570, 575 (7th Cir. 1987).
It is not even clear what it would mean to say that the
district court was entitled to treat Tapling’s testimony as
gospel truth—does this mean that Allen’s absences played
a role in Reilly’s promotion, or played no role? Tapling
said both things under oath. The insouciance with which
the defendant treats Tapling’s possibly dishonest testi-
mony is in ironic contrast with its insisting, as we shall see
that it does, that plaintiff Leonard’s perjury at his deposi-
tion should bar his claim altogether.
The district court refused to give any weight to the find-
ing by the CTA’s own investigator that Tapling’s explana-
tion for Reilly’s promotion was not credible. This was an-
other error. The finding was admissible as an admission
made by an employee of a party opponent within the
scope of his employment, Fed. R. Evid. 801(d)(2)(D); Stag-
man v. Ryan, 176 F.3d 986, 996 (7th Cir. 1999), and as
an investigative report of a public agency. Fed. R. Evid.
803(8)(C); Tuohey v. Chicago Park District, 148 F.3d 735, 739-
No. 01-2101 5
40 (7th Cir. 1998). How much weight to give such admis-
sions (for they are evidentiary rather than judicial admis-
sions and hence not binding, id. at 740; see also Higgins
v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000)) is for the
jury to decide, not the judge in ruling on a motion for
summary judgment.
So the grant of summary judgment against Allen and
Burnette must be reversed, and we move on to Newberry.
He was a computer programmer and complains primarily
that like Allen and Burnette he was passed over for a pro-
motion in favor first of one white person, Otto, and then
of another, Goyal. Otto, however, was promoted only in
the sense of being given a higher rank and salary; rather
than fill a vacancy, he continued in the same job that he
had had before his promotion. For Newberry to have
been given Otto’s “promotion” would have meant bounc-
ing Otto from a job that he had been performing adequate-
ly, indeed with sufficient distinction to warrant a promo-
tion. As for the job that Goyal obtained, Newberry prob-
ably failed to show that he was qualified to perform the
duties of the job, and certainly failed to show that he was
as well qualified as Goyal.
There is no other evidence that the denial of the promo-
tions was racially motivated. It is true that, like Allen and
Burnette, Newberry submitted a report by a CTA investiga-
tor. But the report is not probative. It was written before
the two promotions that Newberry claims he was denied
for racial reasons, and it contains no evidence concerning
his qualifications for the promotions relative to the qualifi-
cations of Otto and Goyal, nor any other evidence bear-
ing on the employer’s motivation.
Newberry also claims that he was a victim of harassment.
He alleged that the motive behind the harassment was
the fact that he had complained about discrimination and
6 No. 01-2101
on the basis of this allegation the district court ruled that
Newberry was charging retaliation and that he could not
do this because he had failed to file a complaint of retalia-
tion with the EEOC. Discrimination and retaliation are
separate wrongs, as is obvious in cases (which this case is
not, however) in which the person retaliated against is
not a member of the group that is the target of the al-
leged discrimination. It is the motive for, rather than the
character of, the actions taken against the employee that
determines whether the claim is one of retaliation. See
Heuer v. Weil-McLain, 203 F.3d 1021, 1024 (7th Cir. 2000);
Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 26 (1st
Cir. 2002). If a black employee, such as Newberry, is dis-
criminated against, complains, and then is further dis-
criminated against, the further discrimination being moti-
vated however by the complaint rather than by the
employee’s race as such, that further discrimination is
discrimination against complainers rather than against
blacks; for a white who complained would be treated the
same way.
The judge thus properly barred Newberry from press-
ing his claim for retaliation; and Newberry has forfeited
any claim of racial harassment by failing in his brief in
this court to indicate in even a minimally coherent man-
ner (see Jones Motor Co. v. Holtkamp, Liese, 197 F.3d 1190,
1192 (7th Cir. 1999); Colburn v. Trustees of Indiana Univer-
sity, 973 F.2d 581, 593 (7th Cir. 1992); Karibian v. Columbia
University, 14 F.3d 773, 777 n. 1 (2d Cir. 1994)) what acts
he contends were acts of harassment motivated by his
race and whether they added up to a materially adverse
employment action, which must be shown for employ-
ment discrimination to be actionable under Title VII. See,
e.g., Herrnreiter v. Chicago Housing Authority, No. 01-3202,
2002 WL 31886684, at *1 (7th Cir. Dec. 30, 2002). Newberry
complains that the district judge did not give him time
No. 01-2101 7
to complete discovery, but there is no merit to that com-
plaint; the judge found, not unreasonably, that Newberry’s
lawyer had frittered away the time that he had been given
for conducting discovery. See United States v. All Assets
& Equipment of West Side Building Corp., 58 F.3d 1181, 1190-
91 (7th Cir. 1995).
We come last to Leonard, an employee in the CTA’s
printing shop who alleges numerous acts of retaliation
for his numerous complaints of discrimination. The alleged
retaliatory acts were various disciplinary measures, such
as warning letters and suspensions, for various infractions.
His claim is fatally undermined by uncontroverted evi-
dence of infractions and discipline prior to his complaints
not offset by any evidence that might nevertheless con-
vince a reasonable jury that had it not been for his com-
plaints, he would not have been disciplined as often or as
severely as he was. We give some examples of the disci-
pline alleged to be retaliatory to which he was subjected:
1. He was transferred to a lower-paid job operating a
different machine after a fight with another worker. He
does not deny that the fight took place, and since the
other worker was permanently assigned to the original
machine, while Leonard was working there only tempo-
rarily, no inference of retaliation can be drawn from the
fact that the employer separated the fighters by moving
Leonard.
2. He admits that the reason for a two-day suspension
was his refusal to cut paper. He says that he simply de-
manded to be paid appropriately for the work and that his
union representative was there as a witness. The representa-
tive said that Leonard’s supervisor became enraged and
screamed at Leonard. No matter; Leonard’s own descrip-
tion of the incident indicates that the cause of the suspen-
sion was the employer’s irritation (whether warranted
8 No. 01-2101
or not) with Leonard and the union about their making
what the supervisor regarded as a fuss over the correct pay
for cutting paper.
3. A five-day suspension occurred after Leonard and
several other workers had reported four hours of overtime
instead of the three they worked. All the employees were
disciplined identically.
4. Leonard’s best evidence of retaliation involves the 12-
month probation on which he was placed after he got
into another fight with the worker mentioned in para-
graph 1 above, who by this time however was a supervisor.
Leonard claims that the fight was merely a “discussion.”
But whether it was an actual fight (as the history suggests)
or Leonard was simply mouthing off at the supervisor,
we do not think that, given all the uncontradicted evi-
dence of Leonard’s chronic insubordination, a reasonable
jury could find that the suspension was motivated by his
complaints of discrimination.
Two issues relating to Leonard’s claim merit further
discussion, however. They arise from the same incident,
namely an act of perjury at his deposition, where he
claimed to have recorded certain conversations that he con-
tended supported his charge of retaliation. He later admit-
ted that he had not recorded them. The statement in his
deposition was a lie and was material, and so it was in-
deed perjurious. By way of sanction the district court
ordered Leonard to pay the defendant, in ten installments
of $400 each, $4000, representing the defendant’s legal
expense caused by the lie. (Leonard challenges the order,
but his challenge has no merit.) This was before the court
entered summary judgment for the defendant. When
Leonard was late in paying the first installment, the de-
fendant moved to dismiss the suit as a sanction for the
default. The judge denied the motion without explana-
No. 01-2101 9
tion after Leonard finally paid the installment. Leonard
continued paying for a time, but after he reached $2000
he stopped, informing the court that he couldn’t afford to
pay any more, though he later paid another $200. As of
September 24, 2002, when this case was argued, he still
owed $1800 and we assume he still does as otherwise we
would certainly have heard from his lawyer. The defen-
dant asks us to dismiss Leonard’s appeal as a sanction for
his continuing disobedience of the district court’s order
to pay.
Willful disobedience of a judicial order is contempt of
court, and among the sanctions that may be appropriate
for such contempt is barring an appeal from the judgment
in the litigation in which the order was issued. This would
not be appropriate if the order had been disobeyed be-
fore the district court entered its judgment, for then that
court would be in the best position to mete out an appro-
priate sanction. But that is not quite this case, as the de-
fendant is complaining to us about Leonard’s continu-
ing contumacy after the appeal was filed and the district
judge thus had lost jurisdiction.
A willful failure to pay fees due in the trial court or
fines or other monetary sanctions imposed by that court
strikes us as a reasonable ground for dismissing an ap-
peal, with the effect of dismissing the appellant’s suit. But
not in this case, as there has been no determination that
Leonard’s continuing failure to pay is willful, which it is
not if he simply does not have any money. His lawyer
tells us that Leonard is unemployed and bankrupt; this is
of course entirely possible though we cannot be certain of
it because, to repeat, there has been no evidentiary hear-
ing. We could remand with directions to the district court
to conduct such a hearing, or we could instead appoint
a special master to conduct a hearing in this court, but
10 No. 01-2101
there is no point in embarking on either course since Leon-
ard’s appeal has in any event no merit.
The defendant also argues that even if Leonard had paid
the fine in full and had presented evidence of retaliation,
we would have to affirm because of his perjury. There
are two ways to characterize such an argument. The first
is that perjury should estop a litigant to continue litigat-
ing the claim out of which the perjury arose. The second
is that perjury warrants disbelieving all the perjurious liti-
gant’s testimony.
The first position is untenable if stated as a rule rather
than an option. We noted that the district judge had in ef-
fect fined Leonard $4000 for his perjury; there are also of
course criminal sanctions for perjury, although they are
rarely invoked; and an alternative to either a monetary or
a criminal sanction might indeed be to throw out the
perjurious litigant’s case. Martin v. DaimlerChrysler Corp., 251
F.3d 691, 695 (8th Cir. 2001); cf. Thomas v. General Motors
Acceptance Corp., 288 F.3d 305, 306-07 (7th Cir. 2002). Perjury
committed in the course of legal proceedings is a fraud
on the court, and it is arguable that a litigant who defrauds
the court should not be permitted to continue to press
his case.
This would depend on the circumstances, however. In
re Hall, 304 F.3d 743, 748-49 (7th Cir. 2002). In general
the severity of a sanction should be proportioned to the
gravity of the offense, Bolt v. Loy, 227 F.3d 854, 856-57 (7th
Cir. 2000); Lorenzen v. Employees Retirement Plan of the
Sperry & Hutchinson Co., 896 F.2d 228, 232-33 (7th Cir. 1990),
and while perjury is a serious offense, one can imagine
cases in which a sanction of dismissal would be excessive.
Suppose the opposing litigant had perjured himself as
well. Or suppose the perjury was clumsily committed and
quickly discovered, as indeed happened here. If the per-
No. 01-2101 11
jury were harmless so far as affecting the course of the
litigation was concerned, it might still be deserving of
criminal punishment yet dismissal might be excessive
from the perspective of a civil litigation. See Shepherd v.
American Broadcasting Cos., Inc., 62 F.3d 1469, 1480 (D.C.
Cir. 1995). This may be such a case, though we need not
decide, since, to repeat, Leonard’s claim must be rejected
in any event.
Nor, if the fell sanction of dismissal is rejected, does
perjury warrant disregarding a witness’s entire testimony
as a matter of law. It undermines the witness’s testimony;
but obviously there are cases, perhaps the majority, in
which a witness’s testimony is a compound of truth and
falsity. Perjury is a circumstance to be weighed by the jury
in determining a witness’s credibility rather than a ground
for removing the issue of credibility from the jury by
treating the witness’s entire testimony as unworthy of
belief. Piraino v. International Orientation Resources, Inc.,
137 F.3d 987, 991 n. 2 (7th Cir. 1998); United States v. Kuzniar,
881 F.2d 466, 471 (7th Cir. 1989); United States v. Kelly,
349 F.2d 720, 780 (2d Cir. 1965); Shelton v. United States,
169 F.2d 665, 667 (D.C. Cir. 1948). It simply is not a reason-
able inference from a falsehood in one part of a witness’s
testimony to the falseness of the entire testimony.
So: the dismissal of the claims of Allen and Burnette is
reversed and that part of the case returned to the dis-
trict court for trial, but the dismissal of Newberry’s and
Leonard’s claims is affirmed.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.
12 No. 01-2101
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-6-03