Currie v. Paper Converting MacHine Co. ( 2006 )


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  •                               UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted September 27, 2006*
    Decided October 11, 2006
    Before
    Hon. KENNETH F. RIPPLE, Circuit Judge
    Hon. ILANA DIAMOND ROVNER, Circuit Judge
    Hon. DIANE S. SYKES, Circuit Judge
    No. 06-2419
    GARY CURRIE, Sr.,                         Appeal from the United States District
    Plaintiff-Appellant,            Court for the Eastern District of
    Wisconsin
    v.
    PAPER CONVERTING MACHINE                  No. 05-C-355
    CO., INC.,
    Defendant-Appellee.            William C. Griesbach,
    Judge.
    ORDER
    Gary Currie, a Native American, was laid off from his job at Paper
    Converting Machine Company, Inc. (“Paper Converting”) after the company closed
    its O&E machine facility. Currie claims that Paper Converting discriminated
    against him on the basis of his race in violation of 
    42 U.S.C. § 1981
     when it failed to
    transfer him to its machine facility at Renard or to rehire him after he applied for a
    *
    After an examination of the briefs and the record, we have concluded that
    oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
    record. See Fed. R. App. P. 34(a)(2).
    No. 06-2419                                                                    Page 2
    job at Renard. Because we agree with the district court that Currie cannot make
    out a prima facie case or show that Paper Converting’s asserted reason for not
    transferring or rehiring him was pretext for discrimination, we affirm.
    Paper Converting laid off approximately 129 employees, including Currie,
    when it closed its O&E facility in April 2001. At O&E, Currie had worked for 30
    years in various assembly and machining jobs. During the seven years before the
    plant closed, he was a planner miller. When O&E shut down, plant manager Gerry
    Hickey decided to transfer 18 O&E workers to Renard. Hickey stated that only
    some of the work performed at O&E was moved to Renard—cam cell work, label-
    laminating work, and contract machining—and that in April 2001 he selected the
    most qualified O&E employees to continue performing this type of work there.
    Currie was not one of the employees selected for transfer. In June 2001 and later in
    June 2003, Currie applied to Renard to work as a machinist or an assembler. He
    did not receive an interview or discuss his application with anyone at Renard. In
    September 2003 Paper Converting hired a new employee, Michael Ropson, to work
    at the Renard plant. Tim Bouressa and Tom Nelson, who made hiring decisions for
    shop personnel at Renard, said that Ropson was selected because he was one of
    several candidates with experience operating a jig bore machine.
    Currie sued Paper Converting under § 1981, claiming that it did not transfer
    or rehire him because he is Native American. He claimed that he was better
    qualified than eight former O&E employees who were transferred to, or eventually
    rehired at Renard. He also claimed that his qualifications were superior to
    Ropson’s.
    The district court granted summary judgment for Paper Converting because
    Currie failed to establish a prima facie case, and specifically failed to show that he
    was similarly situated to any of the nine individuals he identified. The court added
    that even if Currie could make out a prima facie case, he could not show that Paper
    Converting’s reason for not transferring or hiring him—that it selected better
    qualified candidates—was pretextual.
    On appeal Currie argues in general terms that he was better qualified than
    the other employees who were transferred to or hired at Renard. These other
    employees, he asserts, were less experienced than him, and management’s
    statements to the contrary are “a lie.”
    We review a grant of summary judgment de novo, construing all facts and
    inferences in the light most favorable to Currie. See Cardoso v. Robert Bosch Corp.,
    
    427 F.3d 429
    , 432 (7th Cir. 2005). Currie has brought his claims exclusively under
    § 1981, but “the relevant examination is the same for both Title VII and § 1981.”
    No. 06-2419                                                                     Page 3
    Anders v. Waste Mgmt. of Wis., Inc., No. 05-3862, 
    2006 WL 2597853
    , at *5 (7th Cir.
    Sept. 12, 2006); Hague v. Thompson Distrib. Co., 
    436 F.3d 816
    , 820 (7th Cir. 2006).
    Initially we note that, even construing Currie’s pro se brief liberally, see
    Anderson v. Hardman, 
    241 F.3d 544
    , 545 (7th Cir. 2001), he does not specifically
    challenge the district court’s conclusion that he cannot make out a prima facie case
    of discrimination. However, the fourth element of the prima facie case—whether
    similarly situated employees not in his protected class received more favorable
    treatment than he did—is closely intertwined here with a pretext inquiry—whether
    Paper Converting’s reasons for not transferring or rehiring him were pretextual—so
    we will consider them together. See Keri v. Bd. of Trs. of Purdue Univ., 
    458 F.3d 620
    , 644 (7th Cir. 2006); Olsen v. Marshall & Ilsley Corp., 
    267 F.3d 597
    , 600 (7th
    Cir. 2001).
    “[T]he pretext inquiry focuses on whether the employer’s stated reason was
    honest, not whether it was accurate.” Rudin v. Lincoln Land Cmty. Coll., 
    420 F.3d 712
    , 727 (7th Cir. 2005) (internal citation and internal quotation marks omitted).
    Where an employer says that it selected the most qualified applicants, “evidence of
    the applicants’ competing qualifications does not constitute evidence of pretext
    unless those differences are so favorable to the plaintiff that there can be no dispute
    among reasonable persons of impartial judgment that the plaintiff was clearly
    better qualified for the position at issue.” Mlynczak v. Bodman, 
    442 F.3d 1050
    ,
    1059 (7th Cir. 2006) (quoting Millbrook v. IBP, Inc., 
    280 F.3d 1169
    , 1180 (7th Cir.
    2002)); see Cichon v. Exelon Generation Co., 
    401 F.3d 803
    , 813 (7th Cir. 2005).
    Currie’s evidence is insufficient to show that he was unquestionably better
    qualified than the eight former O&E employees he compares himself to—Elliott,
    Bahrke, Evrard, McGarry, Malchak, Giesbers, Richardson, and Rosenberg—who
    were transferred or rehired instead of him. To prove that he was more qualified
    than these eight individuals, Currie points to the affidavit of Bernard Stelmach, a
    former supervisor at O&E, who noted that “Currie was one of the most experienced
    and best machinists in the O&E machine department.” Stelmach also noted that
    several of the eight others had less work experience than Currie in some areas; in
    particular, Currie had the most experience operating a boring bar machine and
    using automaton parts. But while this affidavit shows that Currie was an
    outstanding employee while he worked at O&E, it does not establish that he was
    “clearly better qualified” than the eight others. It noted, for instance, that Evrard
    had approximately the same years of assembly experience as Currie, and that
    Richardson had more experience than Currie as a lathe operator. Moreover, even if
    Stelmach’s affidavit did establish that Currie was more qualified than any of the
    eight individuals, it does not show that Hickey—the decisionmaker in this
    case—did not honestly believe that those hired at Renard were more qualified than
    Currie.
    No. 06-2419                                                                     Page 4
    Currie further suggests that Paper Converting “lied” when it said it selected
    Ropson for his jig bore skills because the company’s advertisement called for boring
    bar experience. But this just shows that Paper Converting hired a person with
    more skills than those sought in the advertisement—Ropson claimed in his
    application that he could operate both a jig bore and a boring bar. Paper
    Converting was permitted to hire the candidate it believed to be the most qualified
    from its applicant pool. There is no evidence that this was pretext unless Currie
    was clearly more qualified than Ropson, and Currie has not shown this to be the
    case.
    AFFIRMED.
    SYKES, Circuit Judge, concurring. I would dismiss this appeal for
    noncompliance with Rule 28 of the Federal Rules of Appellate Procedure. Gary
    Currie’s appellate brief consists of less than a page and a half of generalized
    assertions of “lies” on the part of Paper Converting Machine Company, Inc., and a
    generalized reference to having “hard solid evidence” that he is “more qualified than
    People that were transferred from O&E Machine to Renard Machine.” Rule 28
    requires that an appellant’s brief contain (among other things) an argument that is
    more than a generalized assertion of error, with citation to supporting legal
    authority and the record evidence on which the appellant relies.
    Fed. R. App. P. 28(a)(9); Anderson v. Hardman, 
    241 F.3d 544
    , 545 (7th Cir. 2001).
    The rule promotes the evenhanded administration of justice and “applies equally to
    pro se litigants.” 
    Id.
     Where, as here, a pro se litigant fails to comply with the rule,
    “we cannot fill the void by crafting arguments and performing the necessary legal
    research.” 
    Id.
     Although pro se filings are liberally construed in favor of providing
    appellate review, “pro se litigants should expect that noncompliance with Rule 28
    will result in dismissal of the appeal.” 
    Id.
     Paper Converting argues as a threshold
    matter that Currie’s appellate brief is inadequate under Rule 28, warranting
    dismissal. I agree, and would dismiss the appeal for noncompliance with Rule 28.