Currie v. Paper Converting MacHine Co.

UNPUBLISHED ORDER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.