Whitfield v. International Truck & Engine Corp.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-1876

MATTHEW WHITFIELD,

Plaintiff-Appellant,

v.

INTERNATIONAL TRUCK AND ENGINE CORPORATION,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:02-cv-00902-RLY-TAB — Richard L. Young, Chief Judge.

____________________

ARGUED NOVEMBER 14, 2013 — DECIDED JUNE 6, 2014

____________________

Before WOOD, Chief Judge, and CUDAHY and ROVNER, Cir-

cuit Judges.

CUDAHY, Circuit Judge. This rather complex matter in-

volves a failure to hire claim under 42 U.S.C. § 1981 and Title

VII of the Civil Rights Act. At the heart of this case is plain-

tiff-appellant Matthew Whitfield’s application for an electri-

cian position at one of defendant-appellee Navistar’s engine

manufacturing plants. Whitfield is African-American, and

prior to applying with Navistar, he worked as an electrician

2 No. 13-1876

for various employers, including four years with the U.S.

Navy. Navistar is a manufacturer of engines, among other

equipment, and employed a number of electricians at the

time of Whitfield’s application.

In 1996, Whitfield applied for an open electrician position

at Navistar’s plant in Indianapolis, Indiana (the Plant). At

the time, Navistar had a significant need for electricians and

hired sixteen electricians at the Plant while Whitfield’s appli-

cation was pending, and eleven during the relevant limita-

tions period. The written job description for electricians, as

negotiated with the United Automobile, Aerospace, and Ag-

ricultural Implement Workers of America (the Union) re-

quired that an applicant have either eight years experience

as an electrician or a journeyman card, which was considered

presumptive proof of the experience requirement. The jour-

neyman card could be issued by the Union or any other un-

ion with comparable apprenticeship standards. Navistar

delegated the responsibility of evaluating and confirming an

applicant’s experience to the Union.

When Whitfield first applied for a job in 1996 he alleged

he had approximately nine and a half years of experience as

an electrician, including four years in the U.S. Navy. The

Plant’s general foreman, Daniel McDonald, interviewed

Whitfield and stated he would hire him if the Union verified

the required eight years of experience. However, when the

Union attempted to verify Whitfield’s numerous employers

it was unable to determine he had the requisite eight years

experience. Navistar asserted the difficulty in verifying

Whitfield’s experience was due to errors on his application,

but the Union did not consider Whitfield’s four years of ex-

perience as an electrician in the Navy, which it conceded

No. 13-1876 3

should have been considered. Whitfield was never rejected

by Navistar; instead he was told that the Union could not

verify his experience. At the suggestion of Navistar’s electri-

cal foreman, Willie Jones, Whitfield continued to work else-

where as an electrician and to supplement his Navistar ap-

plication with additional references.

In September 1998, Whitfield obtained his International

Brotherhood of Electrical Workers (IBEW) card, and submit-

ted proof of it to Navistar. At this point there is no doubt that

Whitfield met the minimum requirements for hire. Union

Committeeman George Bunton then cleared Whitfield for

hire, and returned Whitfield’s file to Jones. While returning

the file to Navistar with notice of Whitfield’s clearance, Jones

opened Whitfield’s folder and saw that the word “black”

was written on the application’s cover sheet. Surprised, Jones

asked Navistar’s Human Resources manager, Jeff Thatcher,

why the word appeared on the file. Thatcher could not ex-

plain why the cover sheet was there and said it must have

been a mistake.

Whitfield continued his quest to gain employment at

Navistar. In March 1999, Whitfield gave the Union an updat-

ed copy of his IBEW card and an updated application. While

Whitfield’s resubmitted application was pending, Navistar

hired at least five more white electricians. Whitfield was

never formally rejected but in December 1999 Jones unoffi-

cially told Whitfield that although he wished to hire Whit-

field, Navistar would not allow it. At trial Navistar asserted

various reasons for not hiring Whitfield, including the “er-

rors” in his resume and his purported lack of Programmable

Logic Controller (PLC) experience, which Navistar contend-

ed was an important, but unstated, qualification for the elec-

4 No. 13-1876

tricians they hire. No final decision maker has ever been

identified by Navistar.

In October 2001 Whitfield, along with 26 other Plaintiffs,

sued Navistar under Title VII, alleging Navistar discriminat-

ed in hiring and maintained a racially hostile work environ-

ment in the Plant. The district court certified the other Plain-

tiffs’ hostile work environment class and ordered that Whit-

field’s hiring discrimination claim remain part of the under-

lying case for discovery and all other pretrial proceedings,

but separated his claim from that class action for trial. The

hostile work environment class action went to trial in 2006

but was settled with most of the class action members before

conclusion of trial.

During joint discovery for the class action and Whitfield’s

claim, extensive amounts of evidence and testimony show-

ing extreme racial hostility at the Plant were presented. Evi-

dence showing racial hostility at the Plant included symbols

of racial hatred (including nooses), photos of racially hostile

graffiti and racially offensive slogans scrawled around the

Plant. The evidence also showed that Navistar refused to

discipline white employees, including supervisors, for such

racially charged behavior. There was also evidence that the

Plant systematically excluded blacks from the skilled trades.

Whitfield’s claim finally proceeded to a bench trial in

June 2012. After the first day, Whitfield filed a submission

regarding evidence from the earlier class trial, Allen, et al. v.

International Trucking, in an attempt to introduce 59 exhibits

and testimony from 19 trial exhibits. Navistar objected, and

the district court took the issue under advisement, and the

trial proceeded until completion. On July 31, 2013, the court

issued its findings of fact and conclusions of law as well as

No. 13-1876 5

an entry of final judgment. The court rejected Whitfield’s

submission regarding evidence from the class trial, stating

that Whitfield gave the court no authority to support admis-

sion of evidence from the class action. Further, the court

found that Whitfield’s submission, proffered one day into

trial, was untimely. The court then concluded that Whit-

field’s evidence was insufficient to directly or indirectly

prove discrimination. Specifically, the court determined that

Whitfield’s evidence did not imply any discrimination, that

Whitfield did not meet Navistar’s unstated qualifications for

the job, and that he did not offer any compelling comparator

evidence. Because we find the district court made several er-

rors in analyzing Whitfield’s evidence, we now reverse.

I.

Under Title VII, employers may not “discriminate against

any individual with respect to his … privileges of employ-

ment, because of such individual’s race[.]” 42 U.S.C. § 2000e-

2(a)(1). Title VII claims and 42 U.S.C. § 1981 claims incorpo-

rate the same liability standard. Walker v. Abbott Laboratories,

340 F.3d 471, 474 (7th Cir. 2003). Once Whitfield shows he

was subjected to an adverse employment action, here Navis-

tar’s failure to hire him, he can prevail on his discrimination

claim by submitting direct or indirect evidence of discrimi-

nation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under the relevant statutes of limitations, only Whit-

field’s claims from May 16, 1998 and onward are timely.

Direct Method

We begin with the direct method of proof. In analyzing

Whitfield’s evidence, the district court makes two significant

errors, which ultimately doomed its analysis. The court first

6 No. 13-1876

erred by discrediting evidence of Whitfield’s personnel file

containing a cover page with the word “black” on it. Despite

our skepticism concerning the district court’s negative credi-

bility assessment 1 of Jones’ testimony, we do give the court

deference in its credibility determinations. See E.C. Styberg

Eng’g Co. v. Eaton Corp., 492 F.3d 912, 917 (7th Cir. 2007).

However, the court did not have discretion to create an ex-

planation out of thin air as to why the word “black” was on

the file, nor should it have ignored substantial evidence of a

racially hostile environment.

Despite being called the “direct method” of proof, out-

right admissions of discriminatory intent are rare, so plain-

tiffs usually use circumstantial evidence of discrimination to

support their claims. Phelan, 463 F.3d at 779. A plaintiff may

prevail by “constructing a convincing mosaic of circumstan-

tial evidence that allows a [factfinder] to infer intentional

discrimination by the decisionmaker.” Id. For this mosaic to

be convincing, it must directly point to a discriminatory rea-

son for the employer’s action and also be directly related to

the employment decision. Dass v. Chicago Bd. of Educ., 675

F.3d 1060, 1071 (7th Cir. 2012). It will not do for plaintiff to

assemble an “amorphous litany of complaints about a myri-

ad of workplace decisions.” Gorence v. Eagle Food Ctrs., Inc.,

242 F.3d 759, 762 (7th Cir. 2001). But, “[r]emarks and other

evidence that reflect a propensity by the decisionmaker to

evaluate employees based on illegal criteria will suffice as

direct evidence of discrimination even if the evidence stops

1 The district court determined Jones was not credible on the basis of two minor

facts: (1) he could not remember how the cover sheet containing the word

“black” was affixed to Whitfield’s personnel file; and (2) he could not remember

the exact date Whitfield’s IBEW card was issued.

No. 13-1876 7

short of a virtual admission of illegality.” Miller v. Borden,

Inc., 168 F.3d 308, 312 (7th Cir. 1999), quoting Venters v. City of

Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (quotations omitted

from original). Whitfield attempted to create this mosaic

with evidence of his racially coded personnel file, and by

drawing a link between that file, the Plant’s racially hostile

environment and Navistar’s refusal to hire him.

The district court, despite having no evidence from

Navistar for support, concluded that Whitfield’s file could

have had “black” written on it for affirmative action purpos-

es, reasoning that Whitefield’s file indicated his race to allow

Navistar to comply with its affirmative action program. But

Navistar’s own human resources manager, Jeff Thatcher,

admitted that he did not know of any reason why “black”

was written on Whitfield’s file and that it must have been a

mistake. Navistar did have an affirmative action program,

but it did not collect race information by labeling applicants’

files with their race. Moreover, Navistar’s diversity manager

Roy Civils testified that it would not be proper for infor-

mation regarding a candidate’s race to be sent to the Union

for the candidate evaluation process. It is incongruous that

someone would have labeled Whitfield’s file “black” for af-

firmative action or other legitimate purposes when the HR

manager himself, who would be in the best position to know

of any non-discriminatory explanation for the cover sheet,

could not explain why it was on the file. Thus, the district

court’s account of the evidence regarding its alternative ex-

planation for the “black” cover sheet is neither plausible in

light of the entire record nor a permissible view of the evi-

dence. Anderson, 470 U.S. at 574.

8 No. 13-1876

Even more troubling is the district court’s determination

that there is no evidentiary link between the cover page and

an intent to discriminate. First, this strikes us as evidence of

racial coding, which strongly infers discrimination. See e.g.,

Calloway v. Westinghouse Elec. Corp, 642 F. Supp. 663, 687

(M.D. Ga. 1986). Second, the district court apparently ig-

nored rather extensive evidence of the racially hostile envi-

ronment within which this cover page was attached to Whit-

field’s personnel file. We will address this issue further later

on, but for now it is important to note that the district court

rejected Whitfield’s attempt to admit evidence from the class

action—evidence which painted an exceptionally clear, and

rather shocking, picture of the Plant’s racially hostile work

environment. In determining that such evidence was inad-

missible, the court said that there was plenty of other evi-

dence establishing the Plant’s racially hostile work environ-

ment. Inexplicably, the district court makes no mention of

this other contextual evidence in its conclusion that no evi-

dence links Whitfield’s “black” cover page with any discrim-

inatory intent. This is troubling. It is obvious to us that this

contextual evidence is at least relevant, and the court’s fail-

ure to even mention this context in its conclusions regarding

the cover page is clear error.

The district court committed a second, more egregious,

error by giving enormous weight to the fact that Navistar

hired Donna Jackson, an African-American electrician,

around the time of Whitfield’s pending application. In doing

so, the district court again shut its eyes to the entire record,

choosing an implausible view of the evidence, and, at the

same time, misapplied the law.

No. 13-1876 9

Jackson had at least thirteen years of experience at the

time she applied. Notwithstanding her clear experience,

eleven white electricians were hired before Jackson was fi-

nally hired two years after her initial application. She was

the first black electrician Navistar had hired in decades.

While the district court does have some degree of discretion

in weighing evidence, it clearly exceeded that discretion

when it determined that Jackson’s hiring “negat[ed] any in-

ference that Navistar failed to hire Whitfield due to his

race.”

By giving such substantial weight to the Jackson hire, the

district court apparently forgot that while she was employed

at Navistar, she was subject to a severely hostile environ-

ment at the Plant, which was primarily directed at her race.

In fact, Jackson’s story of waiting two years, despite being

more qualified than white applicants that were hired instead

of her, as well as the racial hostility she was subjected to

when she was finally hired, bolster Whitfield’s direct dis-

crimination evidence. It is a rather persuasive piece of cir-

cumstantial evidence, which the district court erroneously

relied upon to negate discrimination rather than to support

it. Moreover, this singular instance of Navistar hiring a black

electrician, does not entitle Navistar to immunity from sub-

sequent discrimination allegations. Cf. Carson v. Bethlehem

Steel Corp., 82 F.3d 157, 158–59 (7th Cir. 1996). Instead, the

court should have recognized that even though a member of

the same protected class was hired, that fact does not magi-

cally negate the inference created by the evidence of Jack-

son’s hiring and employment at the Plant, the evidence of

intense racial hostility at the Plant or the cover page on

Whitfield’s personnel file identifying him as black. We find

10 No. 13-1876

that these clear errors led the district court to improperly

distort Whitfield’s mosaic of circumstantial evidence.

Indirect Method

We now turn to the indirect or burden-shifting method of

proving discrimination. Under this method, Whitfield must

establish a prima facie case consisting of four elements: (1) he

was a member of a protected class; (2) he applied for an open

position for which he was qualified; (3) he did not receive

the position; and (4) those who were hired were not in the

protected class and had similar or lesser qualifications. See

Blise v. Antaramian, 409 F.3d 861, 866 (7th Cir. 2005); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

There is no real issue as to the first and third elements—it

is undisputed that Whitfield is a member of a protected class

and did not receive the position he applied for. The district

court concluded that Whitfield failed to prove the other ele-

ments.

In addressing the second element, the district court first

determined that Whitfield applied in 1996, was rejected, and

applied again in 1999. Because his 1996 application was be-

fore May 16, 1998, the court determined that any claim re-

garding his 1996 application was untimely, which effectively

meant that the court considered only Navistar’s conduct af-

ter Whitfield’s re-application in March 1999. Oddly, the court

also concluded that Whitfield had submitted an updated re-

sume in 1997, and even in 1998 the Union was still trying to

verify his experience. Instead of supporting a formal rejec-

tion of Whitfield’s application, the record shows that Whit-

field was informed that his application was still under con-

sideration and that Whitfield continued to supplement his

No. 13-1876 11

application well into 1998. The record does not support the

district court’s determination that Whitfield was rejected af-

ter his first application. All conduct within the statutory pe-

riod should be considered by the court. See National R.R. Pas-

senger Corp. v. Morgan, 536 U.S. 101, 114–115 (2002). Thus, in

light of Whitfield’s pending application in May 1998, we see

no reason why the court should neglect to consider Navis-

tar’s timely conduct that took place before Whitfield’s re-

application in 1999. In any event, even if we were to limit our

analysis to the 1999 application, Whitfield can still satisfy

each element of the indirect method.

More central to our analysis of the second element of the

indirect method is the question of Whitfield’s qualifications.

Navistar required that an electrician applicant have either

eight years of experience as an electrician or a journeyman’s

card. Whitfield contends that he had eight years of experi-

ence at the time of his initial application, and certainly had

that many as he continued to supplement his application

with his current work experience. Yet, for some reason the

Union had trouble verifying his experience. In any case, at

the time of his reapplication in 1999 Whitfield had obtained

an IBEW Journeyman’s card, making him presumptively

qualified for the position. 2 Standing alone, this should have

been enough to satisfy this element. However, instead of re-

lying on this presumptive evidence, the district court fo-

cused on Navistar’s justifications for not hiring Whitfield,

namely that Whitfield lacked Navistar’s “preferred,” but

never formally stated, qualifications. The district court de-

2 In fact, the record shows and the district court made a factual finding that Un-

ion Committeeman Bunton cleared Whitfield for hiring in September 1998 on

the basis of both his IBEW Journeyman card and his actual experience.

12 No. 13-1876

termined that Whitfield was not qualified for this job, and

Navistar was justified in not hiring him, due to errors in his

resume and his purported lack of experience with pro-

grammable logic controllers (PLC).

Whatever the reasons the district court relies upon to jus-

tify Navistar’s failure to hire, it does so in error because no

decision maker has been identified. Navistar was never able

to identify the individual who made the final decision to not

hire Whitfield. Thus, it is impossible for the court to conclude

that the reason he was not hired was due to either the errors

in his resume or lack of PLC experience. While those may

have been reasons for not hiring Whitfield, without any

known decisionmaker, it is mere speculation to say these

were the actual reasons. The district court stated that “it was

ultimately Powell’s opinion regarding Whitfield’s lack of

PLC experience that was the driving force behind Navistar’s

decision not to hire Whitfield.” However, Powell testified

that he did not make the decision to not hire Whitfield, and

could not even identify who made the decision. Therefore, it

is patently incorrect to say that Powell’s opinion had any

bearing on the actual basis for the hiring decision.

Making matters worse, the evidence shows that Whitfield

had more PLC experience than many of the white electri-

cians hired during the relevant time period. It is rather odd

then that the district court would rely so heavily on Navis-

tar’s desire for electricians with PLC experience when the

record shows that several new hires had none. Navistar’s

purported justification seemingly does more to show pre-

text, than it does to show Whitfield was not actually quali-

fied. See, e.g., O’Neal v. City of New Albany, 293 F.3d 998,

1005–06 (7th Cir. 2002)(“[plaintiffs] may establish pretext

No. 13-1876 13

with evidence that the defendants were more likely than not

motivated by a discriminatory reason or that their explana-

tions are not worthy of credence, i.e., they are factually base-

less, did not actually motivate the defendants, or were insuf-

ficient to motivate the adverse employment action.”).

The same can be said for the district court’s fixation on

the errors in Whitfield’s resume. These errors may indicate

why Whitfield’s resume could not be initially verified; how-

ever, it is undisputed that by the time of Whitfield’s reappli-

cation in March 1999, he had a journeyman’s card—

presumptive proof of his qualification, which should render

any errors irrelevant. In any event, without a final decision

maker it is impossible to say that either PLC experience or

resume errors were the sole bases for not hiring Whitfield.

This district court’s reliance on these speculative justifica-

tions was clearly erroneous.

Turning now to the fourth element, the district court also

erred in determining that Whitfield failed to present any

comparator evidence showing that he was at least as well

qualified as non-protected class employees who were hired

during the relevant period. In fact, Whitfield submitted ra-

ther compelling comparator evidence—a chart, originally

prepared by Navistar, which detailed the experience of both

Whitfield and Navistar’s electricians who were hired while

Whitfield’s application was pending. As originally prepared,

the chart shows that Navistar hired at least one electrician

with zero PLC experience during the limitations period.

However, Whitfield alleged that the chart’s original form

drastically understated 3 his experience and submitted an

3The evidence shows that Navistar General Foreman McDonald prepared the

EEOC chart using company files for the electricians that Navistar hired, but only

14 No. 13-1876

updated version of the EEOC chart, which reflected his actu-

al experience. This updated EEOC chart showed that Whit-

field was more qualified than most of the electricians hired

during the limitations period.

Despite this clear comparator evidence, the district court

disregarded it on the basis that the chart reflected the train-

ing some of Navistar’s electricians received after being hired.

Inexplicably, both the district court and Navistar seem to ar-

gue that the document does not reflect the experience of the

electricians at the time they were hired, so it is irrelevant to

Whitfield as an un-hired electrician. Apparently Navistar

and the court did not understand that the chart reflects the

total experience of Navistar’s electricians, thus showing that

Whitfield was more qualified than several employees even

after they received on-the-job training. The updated EEOC chart

is clear and persuasive evidence that Whitfield was more

qualified than many of the white electricians Navistar hired

during the limitations period—the district court committed

clear error in determining that Whitfield had failed to sub-

mit any comparator evidence regarding Navistar’s preferred

qualifications.

II.

Finally we must address the propriety of the district

court’s exclusion of the evidence which was produced as a

result of joint discovery with the class action involving

Navistar. The court excluded most of this evidence on the

basis that it found no legal support for a blanket admission

of exhibit and testimony from a previous trial; that the sub-

used his own recollection to fill out the chart as it pertained to Whitfield’s expe-

rience.

No. 13-1876 15

mission was untimely; and that the evidence was either du-

plicative or irrelevant. We ultimately find that it was within

the district court’s discretion to disallow the late submission

of evidence.

Timeliness

Judges have wide discretion to make evidentiary rulings

and manage the efficiency of a trial. See, e.g., U.S. v. Boros,

668 F.3d 901, 907 (7th Cir. 2012). While we think the district

court was permitted to consider this evidence 4, no precedent

suggests it was obligated to. The record shows Whitfield’s

counsel believed the evidence was already admitted and did

not want to waste the time and resources by resubmitting

this evidence. However reasonable this assumption was,

they had no legal authority supporting this assumption.

Even when the district court specifically asked for this au-

thority, they could give none. It was a risk, then, to assume

that this evidence was admitted without addressing this is-

sue with the district court before the trial began. In this re-

gard, the district court was within its discretion to refuse to

admit this evidence for its form (a blanket admission of vo-

luminous exhibits and testimony) and its timeliness (after

trial had begun). Therefore to the extent that the district

court exercised its authority to control the trial by excluding

4 In Walker v. Loop Fish & Oyster Co. the Fifth Circuit determined that where a

case is separated and the same judge presided over both the jury and bench trial,

the judge had the discretion to consider the evidence from the jury trial in the

bench trial. 211 F.2d 777, 780–781 (5th Cir. 1954). Given the overlap in the two

proceedings at hand—joint discovery, same case number and same defendants—

we think that the Fifth Circuit’s holding is applicable to this case—a court has

discretion to consider evidence from the earlier trial if it does not result in preju-

dice.

16 No. 13-1876

the blanket admission, we are reluctant to disturb that dis-

cretion.

Relevance

The district court did not rely solely on the untimely na-

ture of the evidence, but suggested it was not relevant or

duplicative as well. Although we grant substantial deference

to the district court’s determinations regarding relevance, the

class action evidence Whitfield sought to have admitted

proved racial hostility was rampant at Navistar during the

time of his applications, which is quite relevant to this case.

Navistar argues that the evidence was duplicative and Whit-

field did not meet his burden to show it would change the

outcome of his claim. The evidence very well could have

changed the outcome of the case. As discussed above, the

district court’s failure to consider the circumstantial evidence

of rampant discrimination at the Plant affected the outcome

of Whitfield’s case. Thus, there is a strong indication that this

evidence is relevant. To the extent that the district court re-

lied on reasons of irrelevance in refusing to admit this evi-

dence, it was an abuse of discretion.

Exhibit 6

Finally, we note that the district court inconsistently

treated the admissibility of this evidence. On the first day of

trial, Whitfield’s counsel referred to Exhibit 6, an exhibit

from the class trial. Navistar objected on the basis that Ex-

hibit 6 was not evidence in this trial. The court acknowl-

edged that Exhibit 6 was already part of the record and over-

ruled Navistar’s objection. During the discussion of this ob-

jection, Whitfield’s counsel contended that the evidence ob-

tained from joint discovery and admitted in the class trial

No. 13-1876 17

was already admitted in this trial. Thus, it seems that by rec-

ognizing that Exhibit 6 was already part of the record, the

court at least implicitly agreed with Whitfield’s argument.

Obviously, the court changed its mind regarding the class

evidence at some point between the time it recognized Ex-

hibit 6 as already admitted and refusing to admit the rest of

the class evidence. On remand, the district court should re-

solve its inconsistent treatment of Exhibit 6 and the rest of

the class action evidence.

AFFIRMED in part, REVERSED in part,

and REMANDED.