Stuart v. Local 727, International Brotherhood of Teamsters

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1710
MAURA ANNE STUART,
Plaintiff-Appellant,
v.
LOCAL 727, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 9262 — Milton I. Shadur, Judge.
____________________
ARGUED OCTOBER 31, 2014 — DECIDED NOVEMBER 14, 2014
____________________
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The plaintiff filed this sex discrimi-
nation suit under Title VII of the Civil Rights Act of 1964,
and the district judge promptly dismissed it while the suit
was still at the pleading stage. The facts as we’ll state them
are a mixture of allegations and admissions; evidentiary
proceedings might cast them in a different light.
2 No. 14-1710
The plaintiff is a professional driver in Chicago. She has a
commercial driver’s license that permits her to drive school
buses and other large passenger vehicles. She drives school
buses for a living but has long wanted also to drive the vehi-
cles (primarily courtesy vans) that ferry equipment and per-
sons, including actors, involved in movie and television
productions. In Chicago such drivers belong to the Mov-
ie/Trade Show Division of Local 727 (until 2008 of Local 714)
of the Teamsters Union, and are paid about twice the wage
that the plaintiff earns as a bus driver. Some 250 to 300 driv-
ers are members of the Division, but apparently in its 70-
year history the Division has never referred a female driver
to any of the movie or television production companies that
hire drivers for their courtesy vans.
Local 727 had at the end of 2009 adopted a rule that any-
one who wanted to work as a driver for movie and televi-
sion productions had to submit a “Teamsters Local 727 Ap-
plication for Referral—Movie” to the union, which has col-
lective bargaining agreements with all the companies that
produce movies or TV shows in Chicago. Each agreement
provides that the company shall hire only drivers referred to
it by the union. The companies employ Transportation Co-
ordinators who select drivers from the Referral—Movie ap-
plicants. Although the Transportation Coordinators do the
hiring, they are former members of the union and remain
tightly linked to it. So in effect it’s the union that determines
who shall be hired to drive for movie and television produc-
ers in the Chicago area.
In March 2010 the plaintiff filled out and submitted to the
union a Referral—Movie application and at the same time
paid the union’s initiation fee, began making dues payments
No. 14-1710 3
to the union, and in exchange received a card designating
her a member of the union. She explained to the union’s
business agent that she wanted to be on the Movie/Trade
Show referral list, and he told her she was on the list (al-
though the union’s lawyer told us at oral argument that
there is no such list). Months later, having received no refer-
rals from the Movie/Trade Show Division, she called the
business agent a number of times to ask about possible driv-
ing jobs. He told her to stop calling him—he’d call her when
he had something. She received a similar response from a
Transportation Coordinator whom she called.
Yet in the four and a half years that have elapsed since
she joined the union and filled out her referral application,
she has received no referrals. In fact, according to her com-
plaint, her résumé was never included with the résumés of
the other applicants for referral by the Movie/Trade Show
Division and no woman has ever been referred by the Divi-
sion for a driving job. Referrals are not based on seniority,
there has been no shortage of work—in fact the amount of
driving time by Division drivers has increased markedly—
and male drivers with the same commercial driver’s license
as the plaintiff (Class B) have been referred by the Division
even though she was eventually told by the business agent
that she was not being referred because she didn’t have a
Class A commercial driver’s license.
She filed a charge of sex discrimination with the EEOC in
October 2011, and received her right to sue letter in Septem-
ber 2013. A month before receiving the letter she’d been told
by Local 727’s general counsel that she was not a member of
the local even though it had accepted dues payments from
her and issued her a membership card.
4 No. 14-1710
She filed suit in December 2013, within 90 days of receipt
of the right to sue letter, which was within the statutory
deadline. But in its answer to her complaint Local 727 plead-
ed as an affirmative defense that the administrative statute
of limitations in Title VII had expired because she’d failed to
allege any discriminatory actions during the 300-day period
before she filed her charge with the EEOC, 42 U.S.C. § 2000e-
5(e)(1)—the period from December 10, 2010, to October 6,
2011. (Although the statute’s normal administrative statute
of limitations is only 180 days, the 300-day statute is appli-
cable if the claimant first files his or her claim “with a State
or local agency with authority to grant or seek relief from”
employment discrimination. Id. But Stuart did file her claim
within the 300-day limit with the Illinois Department of
Human Rights, and so it was timely.)
When the defendant filed its answer, the pleading stage
of the litigation was complete and the parties would have
been expected to begin pretrial discovery. Instead a month
after the answer was filed the judge ordered the plaintiff to
respond to the statute of limitations defense that the union
had pleaded in its answer to the plaintiff’s complaint. She
complied and in her response explained that Local 727 had
failed to refer her for work on any of the numerous televi-
sion and movie productions that had taken place during the
300-day period, and that the union’s answer to the com-
plaint, in pleading the statute of limitations as a defense, had
merely created a factual dispute, which could not be re-
solved on the pleadings. There had been no discovery, no
motion to dismiss, and no motion for judgment on the
pleadings or for summary judgment.
No. 14-1710 5
The judge was unimpressed by the plaintiff’s response;
four days after receiving it he dismissed the suit with preju-
dice even though Local 727 had not moved for dismissal
with or without prejudice. The judge stated in his opinion
that the plaintiff had known about the discrimination
against women by the local union and its predecessor, Local
714, since 2005, long before the 300-day period had com-
menced, and so her suit was untimely. She had alleged fail-
ures by the union to refer her for specific television and mo-
tion picture projects in Chicago during that period, such as
the movie Superman. But the judge believed (incorrectly as
we’ll see) that failure to refer a person for a job, as distinct
from a refusal to hire the person, is not discrimination ac-
tionable under Title VII, even when the failure to refer is mo-
tivated by the person’s sex or race or some other characteris-
tic that an employer or union is forbidden to consider.
A plaintiff is not required to negate an affirmative de-
fense in his or her complaint, Gomez v. Toledo, 446 U.S. 635,
640 (1980); Levin v. Miller, 763 F.3d 667, 671 (7th Cir. 2014);
Tregenza v. Great American Communications Co., 12 F.3d 717,
718 (7th Cir. 1993), for the painfully obvious reason that the
defendant will not have pleaded any affirmative defenses
until it files its answer or a motion to dismiss. For the plain-
tiff to deny in the complaint that the statute of limitations
has run would merely remind the defendant to consider
whether there might be a basis for pleading it. True, “if [the
plaintiff] pleads facts that show that his suit is time-barred
… , he has pleaded himself out of court. But it does not fol-
low from the fact that a plaintiff can get into trouble by
pleading more than he is required to plead that he is re-
quired to plead that more.” Id. The complaint does not allege
6 No. 14-1710
that the plaintiff filed her charge with the EEOC more than
300 days after the discriminatory acts alleged in the charge.
In his opinion dismissing the suit with prejudice, the
judge said that the plaintiff had been “hoist by her own pe-
tard.” (“Hoist with his own petard,” famously spoken in
Hamlet, means “lifted” by the explosion of one’s own little
bomb—a “petard” is a small bomb.) By this he apparently
meant that her complaint, because it contained a detailed ac-
count of the history of the locals’ treatment of women driv-
ers, acknowledged “that she knew full well of the ‘boys club’
(male-only) situation that existed in the Movie/Trade Show
Division even before jurisdiction over that Division was
transferred from Teamsters’ Local 714 to Local 727 in May
2008. … None of the things about which she now complains
… was a mystery to her.” And those “things” had begun
happening long before the 300-day period culminating in the
filing of her EEOC charge.
But so what? There is no rule that a plaintiff who has
been repeatedly discriminated against by her employer can-
not challenge any of the discriminatory acts under Title VII
unless she files her EEOC charge within 300 days after the
first such act. Lewis v. City of Chicago, 560 U.S. 205, 213–14
(2010). That would be an absurd rule. It would require an
employee to infuriate her employer or union by complaining
about what might be an inconsequential act of discrimina-
tion that she did not expect to be repeated. It would mean
that if she’d first been discriminated against in 2000 and next
(and more seriously) in 2010, she could not sue for the 2010
discrimination without proving that she had not been dis-
criminated against, after all, in 2000, since if she had been
No. 14-1710 7
she would have been barred by the rule declared by the dis-
trict judge from basing a suit on the discrimination in 2010.
The plaintiff clearly alleged acts of discrimination occur-
ring within the 300-day period, but they were failures to re-
fer the plaintiff for work on Movie/Trade Show Division
driving jobs and the judge ruled that a failure to refer is not
an actionable form of discrimination. He relied on National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
That decision establishes a strict rule that a Title VII suit can
be based only on a discriminatory act that occurs within the
180- or 300-day period for filing a charge with the EEOC,
and not an act that is merely related to an act occurring dur-
ing that period. From this the district judge inferred that the
plaintiff had to allege a refusal to hire, which is to say “a
prospective employer’s rejection of a prospective employee’s
specific request to be hired, while the ‘failure to refer’ concept
would place someone such as [the plaintiff] in the position of
a ticking time bomb (or more accurately a non-ticking time
bomb) who could assert being victimized by discrimination
whenever Local 727, knowing that at some earlier point she
had evinced a desire to be considered for possible employ-
ment, failed to reach out to her even in the absence of a cur-
rent application for a job that had opened up” (emphasis in
original).
The judge’s belief that “failure to refer” cannot violate Ti-
tle VII contradicts the statute, which states that it is unlawful
for a union to “fail or refuse to refer for employment any in-
dividual” because of the individual’s sex. 42 U.S.C. § 2000e-
2(c)(2). If a failure to refer were a consequence merely of in-
advertence, and if despite the occasional such failure women
received a reasonable number of referrals from the em-
8 No. 14-1710
ployer, there would be no basis for inferring discrimination
on the basis of sex. But the complaint alleges that the plain-
tiff made repeated, futile requests for referral by the Mov-
ie/Trade Show Division, until Local 727’s business agent told
her “don’t call us, we’ll call you.” At that point, for her to
have continued to make requests to him for referrals would
only have reduced her chances of ever being referred. The
union knew she badly wanted driving jobs on film or TV
projects, yet every time there was an opening wouldn’t refer
her for it, pursuant to a policy of never referring women
drivers, though fully qualified, for such openings.
This was not a situation contemplated by the decision in
the Morgan case. Citing a number of decisions, decided be-
fore but not overruled by Morgan or any other decision, the
Third Circuit in EEOC v. Metal Service Co., 892 F.2d 341, 348–
49 and n.8 (3d Cir. 1990), noted with approval that “courts
have generally held that the failure to formally apply for a
job opening will not bar a Title VII plaintiff from establishing
a prima facie claim of discriminatory hiring, as long as the
plaintiff made every reasonable attempt to convey his inter-
est in the job to the employer. … The Brown brothers [the
alleged victims of discrimination in the Metal Service case]
did everything reasonably possible to make known to Metal
Service their interest in applying for a job,” and that was
good enough to preserve their claim of discrimination de-
spite a finding by the district court, not questioned by the
court of appeals, that one of the brothers had not “directly”
applied to Metal Service for a job. To the same effect see our
decisions in Loyd v. Phillips Bros., Inc., 25 F.3d 518, 523–24
(7th Cir. 1994), and Babrocky v. Jewel Food Co., 773 F.2d 857,
867 (7th Cir. 1985), and the Fifth Circuit’s decision in Mills v.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
No. 14-1710 9
men & Helpers of America, 634 F.2d 282 (5th Cir. 1981)—a case
factually almost identical to the present one: a union refused
to refer a fully qualified woman for employment as a truck
driver, pursuant to the union’s male-only policy.
The district judge’s analysis if accepted would open a
large gap in Title VII. Suppose a woman applies for a job as a
crane operator on construction sites, a traditionally male job.
The employer has an ironclad but of course undisclosed rule
of never hiring women for such jobs. A woman applies and
the employer tells her it has no openings now but will notify
her as soon as there is one; but in fact the employer has de-
cided that, pursuant to its policy, it will not notify her of any
openings. 301 days go by and the employer informs her: “Ha
ha; we don’t hire women; you’ll have to file your EEOC
charge yesterday if you want to sue us.”
The defendant argues that it has no referral list—that it
just collects the résumés of union members such as the plain-
tiff who want to work in the Movie/Trade Show Division; it
is the Transportation Coordinators, who are employees not
of the union but of the production companies, who decide
which of the Division’s drivers to hire. So far as appears,
however, the union business agent with whom the plaintiff
communicated never told her this, but instead conveyed the
impression that he does the referring when there is an open-
ing for a driving job.
The plaintiff points to another ground, besides the ab-
surdity of thinking that a refusal to hire cannot be actionable
discrimination if it is a blanket refusal rather than a refusal
made in response to a specific request, for overturning the
dismissal of the complaint. That ground is equitable estop-
pel—the doctrine that tolls the statute of limitations if the
10 No. 14-1710
defendant engages in conduct that prevents the plaintiff
from filing suit or a claim within the statutory deadline. By
telling the plaintiff to stop inquiring about openings for
drivers, because she would be notified of such openings
without having to call Local 727’s business agent, the agent,
on the approach taken by the district judge, placed her in an
impossible position: she could infuriate him by continuing to
call him to inquire about openings and emphasize her inter-
est in them; she could sue the local prematurely for dis-
crimination (because she didn’t at that time know that the
Division had an ironclad policy against referring women); or
she could simply forgo any remedy under Title VII. By im-
paling her on this three-pronged fork, the business agent
prevented her from suing within 300 days for the union’s
failing to refer her. If contrary to what we believe to be the
law, only an express refusal would be actionable, the agent
prevented her from complying with the statute of limitations
and so Local 727 is equitably estopped to plead the statute.
The judgment is reversed. Because of the abruptness and
irregularity of the district judge’s handling of this case (we
can’t understand his deciding to dismiss the complaint with
prejudice, thereby preventing the plaintiff from amending
the complaint, or his instructing his law clerk to request the
plaintiff’s EEOC charge from the plaintiff’s lawyer, without
telling the defendant, even though the charge was not part
of the record), and the unmistakable (and to us incompre-
hensible) tone of derision that pervades his opinion, we have
decided that further proceedings in the district court should
be before a different district judge. See Circuit Rule 36.