Randolph, Elsie P. v. IN Local Union 1003 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-3913
ELSIE P. RANDOLPH,
Plaintiff-Appellant,
v.
INDIANA REGIONAL COUNCIL OF
CARPENTERS AND MILLWRIGHTS,
MILLWRIGHT LOCAL UNION 1003,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 92—Larry J. McKinney, Chief Judge.
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ARGUED APRIL 4, 2006—DECIDED JUNE 28, 2006
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Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, a member of a local
millwrights union (a millwright nowadays is a construc-
tion worker who does welding, bolting, and other metal
work), brought suit for age and sex discrimination against
her union (she was 59 at the time of the alleged discrimina-
tion), of which she is the sole female member. She appeals
from the grant of summary judgment for the union.
The union maintains an “out of work” list for its mem-
bers. Construction companies consult the list when they
2 No. 05-3913
need additional millwrights for a project. In all of 2002 the
plaintiff earned only $1,334 as a millwright, compared to
$23,193 for the average male member of the union who
sought work through the out-of-work list. She attributes the
difference to the fact that she was not on the list for half that
year and the last quarter of the preceding year, even
though—she testified—she had called up the union official
responsible for the list, Rick Bowersock, every month and
asked to be put on it. The district judge, without mentioning
this evidence, rejected her discrimination claims because she
had failed to show that the male millwrights had obtained
millwright work exclusively from the list and that her
experience and qualifications were comparable to theirs.
The judge overlooked the plaintiff’s main theory of
discrimination, which pivoted on the union’s refusal to
place her on the out-of-work list. The union defends its
refusal on the ground that she hadn’t asked that her name
be placed on the list; that her testimony to that effect
was false. But a jury might believe her, and infer—in the
absence of any contention by the union other than that she
was lying—that she had indeed been kept off the list
because of her sex or her age. (More likely the former than
the latter. Unions tend to favor older workers because they
need union protection more than younger ones do, as
we noted in Chicago & North Western Transportation Co. v.
Railway Labor Executives’ Ass’n, 908 F.2d 144, 147 (7th Cir.
1990); see also Bruce A. Herzfelder & Elizabeth E. Schriever,
Comment, “The Union Judgment Rule,” 54 U. Chi. L. Rev.
980, 1013-14 (1987).) With only the two alternative explana-
tions for why she was not on the list on the
table—discrimination and that she didn’t ask to be on it—a
jury that disbelieved the second could rationally believe the
first. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
No. 05-3913 3
147-48 (2000); Harvey v. Office of Banks & Real Estate, 377 F.3d
698, 709 (7th Cir. 2004).
On this theory of liability, the evidence concerning the
difference between the plaintiff’s wages and that of the
average male member of the union would bear on causation
and damages. Maybe her wages were so low in 2002 relative
to the men’s not because she wasn’t on the list but because
there was little hiring off the list that year or because she
didn’t have the qualifications that the construction compa-
nies were looking for, and the men did. The judge was right
that she could not make out a prima facie case of discrimi-
nation just by showing that men had higher wages than she;
there are too many alternative explanations for such a
difference. See Cullen v. Indiana University Board of Trustees,
338 F.3d 693, 701-02 (7th Cir. 2003); Kadas v. MCI
Systemhouse Corp., 255 F.3d 359, 363 (7th Cir. 2001); Coleman
v. Quaker Oats Co., 232 F.3d 1271, 1282-83 (9th Cir. 2000). But
she can get a bit of help from evidence that a younger male
millwright, Dan Blacketer, who like her complained that
members of other locals were working on a job site that was
within Local 1003’s jurisdiction, obtained a positive re-
sponse from Bowersock; she got nothing. Now she may
have gotten nothing because she didn’t have Blacketer’s
qualifications. But Bowersock did not say that. Instead he
denied that she had raised the jurisdictional issue with him.
If the jury disbelieved his denial, it could infer that he didn’t
respond to her because he favors young males over older
women regardless of qualifications.
The union argues that really there is no factual issue
concerning the plaintiff’s claim to have called the union
monthly to be put on the list. To bolster her testimony,
she had presented her telephone records, which showed
four calls to the union in seven months. (The last call got her
4 No. 05-3913
on the out-of-work list.) She testified that those were the
only months for which she had been able to find her
records. Bowersock testified that he did not receive any calls
or messages from her asking to be put on the list (except the
last, to which he responded positively), and the union
points out that all but the last call were very short, one of
them lasting, according to her own records, for only
50 seconds, which, the union argues, is too short for her
to have asked to be put on the list. That is obviously
wrong, and though it might persuade a gullible juror, it
cannot eliminate a triable issue. Neither can Bowersock’s
sworn denial that the plaintiff had asked to be placed on the
list in the first three calls. His denial merely sets up a
swearing contest between the plaintiff and him. The judge
was not entitled to give more weight to the defendant’s
evidence than to the plaintiff’s. Payne v. Pauley, 337 F.3d 767,
771-72 (7th Cir. 2003).
The telephone records provide some support for the
plaintiff’s testimony, but all that matters at this stage is that
they do not refute it. Of course a party can point to evidence
submitted by his opponent and argue that actually the
evidence disproves the opponent’s case, as the union is
doing. But a party cannot get summary judgment simply by
pointing out infirmities in evidence used by its opponent to
bolster the opponent’s testimony. Wilson v. Williams, 997
F.2d 348, 349-50 (7th Cir. 1993); McGinest v. GTE Service
Corp., 360 F.3d 1103, 1113 n. 5 (9th Cir. 2004). Oral testimony
if admissible will normally suffice to establish a genuine
issue of material fact, though the qualification
“if admissible” is important, particularly in discrimina-
tion cases; a plaintiff cannot get to the jury merely by
testifying that she thought the employer or other alleged
discriminator had a discriminatory purpose. Murray v.
Chicago Transit Authority, 252 F.3d 880, 888 (7th Cir. 2001);
No. 05-3913 5
Stagman v. Ryan, 176 F.3d 986, 996 (7th Cir. 1999); Filippo v.
Northern Indiana Public Service Corp., 141 F.3d 744, 750 (7th
Cir. 1998); Quinones v. Buick, 436 F.3d 284, 290 (1st Cir. 2006).
Plaintiffs cannot qualify as mind readers. But a plaintiff can
testify, as the plaintiff in this case did, that she made a
phone call and said thus-and-so in the ensuing conversation,
or left a message on an answering machine (the union had
an answering machine) that said thus-and-so. That is
testimony to a statement she made, not, as the union would
have it, testimony “to her own subjective beliefs of discrimi-
natory conduct.”
The grant of summary judgment to the union was there-
fore erroneous.
REVERSED AND REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-06