holding summary judgment improper in disparate treatment case when district court limited plaintiff’s ability to discover information relevant to employer’s motivation
How later courts described this case
- holding summary judgment improper in disparate treatment case when district court limited plaintiff’s ability to discover information relevant to employer’s motivation
- “where the need for discovery ... to obtain the requisite statistical data to substantiate the claims asserted is clear, and where plaintiff [was] ... effectively denied the opportunity to engage in that discovery, ... summary judgment is inappropriate”
- questions of intent particularly inappropriate for summary adjudication
- “questions of motive and intent are particularly inappropriate for summary adjudication”
Written by the judges who cited it.
The opinion
PELL, Circuit Judge,
dissenting.
Being of the opinion that the district court properly granted partial summary judgment for the reasons stated in its memorandum opinion and order, I would adopt that memorandum opinion and order as the opinion of this court, and affirm the partial summary judgment. Accordingly, I respectfully dissent.
*13 I notes particularly that the plaintiff did not contravene by affidavit that the union has admitted no transfer members at all during the period in question. The policy apparently is applied uniformly as to all ethnic and racial groups. Any such group could claim it was thereby precluded but it would have to share such claim with all other groups. I also note that the district court “reluctantly” agreed with the union that it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination. The plaintiff had his opportunity to deny this but did not avail himself of the opportunity.
The majority order in referring to this dissent, in effect, admits that for purposes of summary judgment the plaintiff did not contravene the fact that since 1969, the time of the arrival of plaintiff in Chicago, the union had admitted no members whatsoever on transfer. All new members had come through the apprenticeship program, which is not asserted to be discriminatory toward plaintiff’s racial group, or by virtue of a consent decree in United States v. International Association of Bridge and Structural Ironworkers Local Union No. 1, No. 68 C 676 (N.D.Ill.1973). The majority order then states that it views plaintiff’s case as not requiring this contravention but rather that he has to “substantiate the inference which he contends can be drawn from it.”
I fail to see what inference can be drawn from this undisputed fact relevant to the pertinent period' during which he claims discrimination. The International had amended its constitution in 1968 providing for discretion to be exercised as it has been here. See Gavin v. Structural Iron Workers Local No. 1, 553 F.2d 28, 31 (7th Cir. 1977). Uniformly transfers were denied, and I agree with the district court which said:
Where the defendants have made no selection of members from transfer applications at all, no charge of disparate treatment can be sustained according to the prima facie requirement of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). See also Furnco Construction v. Waters, 438 U.S. 567 , 98 S.Ct. 2943 , 57 L.Ed.2d 957 (1978). [Emphasis in the original.]
Unfortunately, it appears to me, that the majority result permits the litigant to bypass required procedure if he is to avoid summary judgment against him. The broad, sweeping information that the plaintiff sought by interrogatories related to times far earlier than that which was pertinent here. As to the pertinent period of time there was no dispute because the defendant union’s affidavit was not countered. If the plaintiff is locked in a situation, he shares that situation with every other would-be transferor, irrespective of such person’s race, sex, nationality, or color.
I cannot conceive that the across-the-board preclusion practiced here would be the basis for an inference that it was directed at what is not shown to be other than a quite small minority group. Cf. Personnel Administrator of Massachusetts v. Feeney, - U.S. -, 99 S.Ct. 2282 , 60 L.Ed.2d 870 (1979).