Supplemental Brief — Banks v. Finley-Seligman & Latz, Inc.

Su Court, US.

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————,

28

No. 85-1854 JUN 1986

. SPANIOL, JR.

JOSEPH F. SPM

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

IRA BANKS,

Petitioner,

y;

FINLEY-SELIGMAN & LATZ, INC.,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RESPONDENT’S APPENDIX

Thomas P. Krukowski

Barry L. Chaet*

Laurie A. Petersen

KRUKOWSKI, CHAET,

BECK & LOOMIS, S.C.

7111 West Edgerton Avenue

Milwaukee, Wisconsin 53220

(414) 423-1330

Counsel for Respondent

*Counsel of Record

i

TABLE OF CONTENTS

Page

DECISION ANT) ORDER OF DISTRICT COURT

DATED OCTOBER 13, 1983.......... Res. App. 1-4

JUDGMENT OF DISTRICT COURT DATED

OCTOBER 13, 1983 .......... wee ee ne Res. App. 5

ORDER OF SEVENTH CIRCUIT DATED OCTOBER

ee re re ee ee Resp. App. 6-9

JUDGMENT OF DISTRICT COURT DATED

Pi ee re Resp. App. 10

ORDER OF SEVENTH CIRCUIT DATED

SEPTEMBER 4, 1985............. Resp. App. 11-16

ORDER OF SEVENTH CIRCUIT DATED

SEPTEMBER 26, 1985............... Resp. App. 17

ee

Resp. App. 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

IRA BANKS, Plaintiff,

v.

FINLEY-SELIGMAN & LATZ, INC., Defendant

DECISION AND ORDER C.A. No. 80-C-1056

This is an action for job reinstatement and front and back

pay under 42 U.S.C. §§ 1981 and 2000e-5(f). Jurisdiction

is predicated on 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f)

(3). The plaintiff, formerly a jeweler in the defendant’s em-

ploy, alleges in his second amended complaint that the

defendant engaged in racially discriminatory employment

tactics directed against him. It appears from the pleadings

that the jurisdictional prerequisites to the claim under §

2000-5(f) (3) are satisfied. The defendant has moved for sum-

mary judgment. The motion is granted.

In March, 1972 the defendant hired plaintiff as an appren-

tice jeweler pursuant to Wisconsin’s Apprentice Jeweler Pro-

gram. Plaintiff was initially compensated in accordance with

the salary schedule in that program. In December, 1974,

plaintiff completed the program and became a fully quali-

fied jeweler. He remained in defendant’s employ and, like

the two other nonmanagement jewelers employed by defen-

dant, was paid on a “point system” —— a system awarding

a certain number of points to a particular repair task. This

method of compensation contrasts with the method by which

defendant’s watchmakers were compensated: the watch-

makers received a percentage of the consumer price of their

work. This difference in compensation formula generally

Resp. App. 2

resulted in lower pay for the jewelers, although defendant

affies that for a time, plaintiff actually earned more than

certain watchmakers. In any event, the discrepancy prompt-

ed plaintiff to file a charge of employment discrimination

with the Equal Employment Opportunity Commission

(“EEOC’’). While that charge was pending, plaintiff volun-

tarily terminated his employment with defendant. In Sep-

tember, 1980, the EEOC determined that there was no

reasonable cause to believe that plaintiff had been discrimi-

nated against, and mailed him his Right-to-Sue letter. This

suit was filed shortly thereafter.

The second amended complaint alleges racially dis-

criminatory employment tactics in violation of 42 U.S.C.

§§ 1981 and 2000e-2a. Although this latest complaint does

not set forth the specific acts forming the basis of the al-

leged statutory violations, prior and subsequent pleadings

filed by this pro se plaintiff indicate that the unequal com-

pensation of jewelers and watchmakers is the subject of this

action. Therefore, I treat the second count of the second

amended complaint as arising under 42 U.S.C. § 2000e-2(a)

(1), which, prohibits employment discrimination in respect

to compensation.

In order to establish a prima facie case under § 1981, plain-

tiff must establish that he is a member of a racial minority

and that he was unable to engage in or enjoy one of the

statutorily enumerated activities or benefits due to the al-

leged discriminatory action. Additionally, he must show that

the defendant’s discrimination was intentional. General

Building Contractors v. Pennsylvania, 50 U.S.L.W. 4975

(U.S. June 29, 1982). The elements of a prima facie case of

racial discrimination with respect to wages are not clearly

established, although a variant of the familiar four-part test

of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 803

(1973), would be appropriate. Compare, Meyer v. Missouri

State Highway Comm’n, 567 F.2d 804 (8th Cir. 1977), cert.

denied, 435 U.S. 1013 (1978) (discrimination in promotion

and relocation). Upon a prima facie showing, the burden

shifts to the employer to articulate a legitimate rationale

Resp. App. 3

for the challenged action.

Similarly, in a disparate treatment case under Title VII,

the plaintiff must establish that defendant acted with dis-

criminatory animus. This can be inferred from a prima facie

showing under McDonnell-Douglas. Again, when plaintiff

establishes a prima facie case, the burden shifts to defen-

dant to articulate a legitimate rationale for the challenged

action. Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981).

In this case, the defendant has covsie its burden of es-

tablishing that its decision not to compensate plaintiff in

the same manner as watchmakers was supported by a valid

business purpose. The defendant has submitted affidavits

tending to show that the positions of watchmaker and jewel-

er involve distinct skills and responsibilities. Moreover, as

defendant has contended, the prices of jewelry materials

fluctuate while the prices of watch components remain rela-

tively constant, and the cost of jewelry can sometimes rise

as high as ninety-nine percent of the consumer price. Thus,

it would be unfeasible to compensate jewelers on the same

basis as watchmakers.

Plaintiff does not challenge these assertions, but argues

simply that watches, like all the items sold and serviced

by the defendant, are jewels and therefore there is no legiti-

mate basis for the watchmaker/jeweler categorization. The

argument is too formalistic to be maintained, particularly

in the face of defendant’s business justification. Moreover,

plaintiff's suggestion that the distinction in compensation

rests not upon job responsibilities but upon race is square-

ly rebutted by defendant’s showing that it employed two

caucasians during plaintiff's term of employ, both of whom

were compensated on the jeweler’s scale.

The Court has reviewed the remaining allegations in the

sundry pleadings and documents and finds them to be either

unmeritorious or irrelevant. Because defendant has ade-

quately carried its burden of proof, I conclude that it is en-

titled to judgment as a matter of law. See Kephart v. Institute

of Gas Technology, 630 F.2d 1217, 1219-20 (7th Cir. 1980).

Resp. App. 4

THEREFORE, IT IS ORDERED that defendant’s motion

for summary judgment is granted.

Dated at Milwaukee, Wisconsin, this 13th day of Oct.,

1983.

BY THE COURT:

John W. Reynolds

Chief U.S. District Judge

U.S. District Court East Dist. Wisc.

FILED

OCT 18, 1983

SOFRON B. NEDILSKY

CLERK

Resp. App. 5

JUDGMENT ON DECISION BY THE COURT

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF WISCONSIN

IRA BANKS,

v.

FINLEY-SELIGMAN & LATZ, INC.

CIVIL ACTION FILE No. 80-C-1056

This action came on for (hearing) before the Court, Honora-

ble JOHN W. REYNOLDS, United States District Judge,

presiding, and the issues having been duly (heard) and a

decision having been duly rendered, granting defendant’s

motion for summary judgment. It is Ordered and Adjudged

that this action is hereby dismissed.

Dated at Milwaukee, Wisconsin, this 13th day of October,

1983.

U.S. District Court East Dist. Wisc.

FILED

OCT 13, 1983

SOFRON B. NEDILSKY

CLERK

Resp. App. 6

UNITED STATES DISTRICT COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(SUBMITTED) September 20, 1984

October 29, 1984

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

UNPUBLISHED ORDER NOT

TO BE CITED PER

CIRCUIT RULE 35

IRA BANKS, Plaintiff-Appellant,

v.

FINLEY-SELIGMAN & LATZ, INC., Defendant-Appellee

Appeal from the United States District Court for the Eastern

District of Wisconsin.

No. 80-C-1056

John W. Reynolds, Judge

* After preliminary examination of the briefs, the court

notified the parties that it had tentatively concluded that

oral argument would not be helpful to the court in this case.

The notice provided that any party might file a “Statement

as to Need of Oral Argument.” See Rule 34(a), Fed. R. App.

P.; Circuit Rule 14(f). The plaintiff has filed such a state-

ment and requested oral argument. Upon consideration of

that statement, the briefs, and the record, the request for

oral argument is denied and the appeal is submitted on the

briefs and record.

Resp. App. 7

ORDER

After receiving two “right-to-sue”’ letters from the Equal

Employment Opportunity Commission (E.E.O.C.) based on

two separate charges, the pro se plaintiff, fra Banks, brought

suit against his former employer, Finley-Seligman & Latz,

in the Eastern District of Wisconsin. The plaintiff's first

“right-to-sue”’ letter, and his initial claim in the district

court, were based on his charge that the defendant’s pay

system caused him to be paid less than certain white em-

ployees. The district court granted summary judgment on

that claim, and we affirm. The plaintiff's second letter and

his second claim in the district court concern his allegation

that he was discharged in retaliation for protected Title VII

activity. See 42 U.S.C. § 2000e-3. After reviewing the papers

and affidavits filed, the district judge granted summary

judgment for the defendant on the retaliation claim. We

reverse and remand for further proceedings that portion of

the case in which there are disputed issues of material fact.

The defendant is engaged in the business of repairing

jewelry, watches, and similar items. The plaintiff, after com-

pleting an apprenticeship with the defendant in December

1974, continued to work for the defendant in the Gimbels

Milwaukee, Wisconsin store as a fully qualified jeweler, un-

til March 28, 1980. The plaintiff, a black, alleges that he

was discriminated against on the basis of race because, as

a jeweler, he was compensated for repair jobs at a piece-work

rate (i.e. a rate based on the number of pieces completed)

that was lower than the piece-work rate applied to repair

jobs completed by watchmakers, who were all of the white

race. Watchmakers were paid a percentage of the retail cost

of the watch repair. In contrast, the method of compensa-

tion to jewelers was not based on the customer’s cost of the

repair, but on a point system that varied with the difficulty

of the repair job.

With respect to the plaintiff's claim of racial discrimina-

tion in compensation, which formed the basis of his first

right-to-sue letter, the district court ruled that the defen-

Resp. App. 8

dant had established a business justification for its prac-

tice. The plaintiff disputes the court’s conclusion. However,

we need not reach this issue because the plaintiff has not

made out a prima facie case of discrimination. Certainly,

Title VII does protect against employment practices that

are ‘fair in form but discriminatory in operation.” See Con-

necticut v. Teal, 102 S. Ct. 2525, 2531 (1982). However, to

attack facially neutral employment standards, such as the

two methods of compensation at issue in this case, the plain-

tiff must establish that they have a disparate impact on

minority group members. See Carpenter v. Board of Regents

of the University of Wisconsin, 728 F.2d 911, 914 (7th Cir.

1984). The plaintiff has failed to do this. It is uncontrovert-

ed that part of the time that the plaintiff was employed by

defendant, two whites were also employed as jewelers and

were paid according to the same point system as the plain-

tiff. Title VII is silent about the method that employers

select to figure wages, so long as the method does not have

an adverse impact on minorities. Similarly the plaintiffs

claim, under 42 U.S.C. Sections 1981 and 2000e-2, that the

defendant’s use of different methods to calculate the wages

of watchmakers and jewelers constituted intentional race

discrimination, must also fail. While the plaintiff has shown

that watchmakers and jewelers had different pay scales he

has not given any indication that he was treated different-

ly as a jeweler because he is black. See Ekanem v. Health

and Hospital Corp. 724 F.2d 563, 569 (7th Cir. 1983). White

jewelers were paid according to the same point system as

the plaintiff, and the district court properly entered sum-

mary judgment on the plaintiff's claim of discrimination in

compensation.

As noted above, the district court also granted summary

judgment on the plaintiff's allegation, which is the subject

of his second right-to-sue letter, that he was terminated from

his employment because he filed the above charge with the

E.E.0.C. Filing a claim of employment discrimination is pro-

tected activity under Title VII, 42 U.S.C. § 20000e-3, regard-

less of whether the complaining party prevails in the

Resp. App. 9

underlying charge of discrimination. See Berg v. LaCrosse

Cooler Co., 612 F.2d 1041, 1043 (7th Cir. 1980). The defen-

dant entered affidavits stating that the plaintiff was not

discharged but had voluntarily resigned. The defendant also

submitted affidavits that the plaintiff was insubordinate in

refusing to do a “special repair job” on a bracelet, and ar-

gued that this insubordination would have provided a legiti-

mate nondiscriminatory reason to fire the plaintiff in any

event. These affidavits, standing alone, might have been

sufficient to support a grant of summary judgment for the

defendant. In this case, however, the plaintiff (acting pro

se) did not merely rest on the allegations in his complaint,

See Patterson v. General Motors, 631 F.2d 476, 482 (7th Cir.

1980), but offered his own counter-affidavits in which he

denied he had voluntarily resigned, and asserted that, at

a meeting with officials of his former employer, his super-

visor had threatened to quit unless the plaintiff was dis-

charged. Further, the plaintiff averred that he, in fact, did

repair the bracelet in question, contrary to the defendant’s

claims of insubordination. The plaintiff's affidavits raise dis-

puted issues of fact that are material to the disposition of

his retaliation claim. In light of this factual dispute the

defendant’s filings are inadequate to demonstrate that it

is entitled to judgment as a matter of law. See Big O Tire

Dealers Inc. v. Big O Warehouse, Nos. 83-2863 & 83-2902,

slip op. at 9-10 (7th Cir. Aug. 17, 1984). Consequently, we

remand the case for further proceedings consistent with this

opinion.

The decision of the district court is AFFIRMED IN PART,

REVERSED AND REMANDED IN PART.

Resp. App. 10

JUDGMENT IN A CIVIL CASE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

IRA BANKS,

v.

FINLEY-SELIGMAN & LATZ, INC.

Docket No. 80-C-1056

Judge John W. Reynolds

Decision by Court. This action came to trial or hearing

before the Court with the judge (magistrate) named above

presiding. The issues have been tried or heard and a deci-

sion has been rendered. IT IS ORDERED AND ADJUDGED

that this action is hereby dismissed.

U.S. District Court East. Dist. Wisc.

FILED

JAN 10, 1985

SOFRON B. NEDILSKY

CLERK

Resp. App. 11

UNITED STATES DISTRICT COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(SUBMITTED) August 22, 1985*

September 4, 1985

Unpublished order not be cited per circuit rule 35

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. JESSE E. ESCHBACH, Circuit Judge

IRA BANKS, Plaintiff-Appellant,

v.

FINLEY-SELIGMAN & LATZ, INC., Defendant-Appellee.

No. 85-1188

Appeal from the United States District Court for the Eastern

District of Wisconsin.

No. 80 C 1056

John W. Reynolds, Judge

* After preliminary examination of the briefs, the court

notified the parties that it had tentatively concluded that

oral argument would not be helpful to the court in this case.

The notice provided that any party might file a “Statement

as to Need of Oral Argument.” See Rule 34(a), Fed. R. App.

P.; Circuit Rule 14(). No such statement having been filed,

the appeal has been submitted on the briefs and record.

Resp. App. 12

ORDER

Plaintiff-appellant Ira Banks appeals the district court ord-

er of January 10, 1985 dismissing his employment discrimi-

nation action against defendant-appellee, Finley-Seligman

& Latz, Inc. We affirm for the reasons explained below.

I.

Banks, a black jeweler, filed two employment discrimi-

nation claims with the Equal Employment Opportunity

Commission against the defendant, his employer. The first

claim alleged that the defendant’s pay system was dis-

criminatory because it caused him to be paid less than cer-

tain white employees. The second claim alleged that Banks

was discharged by the defendant in retaliation for protect-

ed Title VII activity. See 42 U.S.C. § 2000e-3; Klein v.

Trustees of Indiana University, No. 84-2124, slip op. (June

20, 1985); Mozee v. Jeffboat, Inc., 746 F.2d 365 (7th Cir.

1984); McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924

(7th Cir. 1984). After receiving right to sue letters on both

claims, Banks filed suit in federal district court raising both

claims. The district court granted summary judgment for

the defendant on both claims. On appeal, we affirmed by

unpublished order the grant of summary judgment on the

claim that the defendant’s pay structure was discriminato-

ry, Banks v. Finley-Seligman & Latz, Inc., No. 83-2981, un-

published order (7th Cir. Oct. 29, 1984). We reversed and

remanded for further proceedings, however, with respect to

the claim that Banks was terminated in retaliation for fil-

ing a claim against the defendant. On remand, the district

court held a lengthy evidentiary hearing at the conclusion

of which it dismissed Bank’s claim, finding that Banks had

failed to establish that he was terminated in retaliation for

filing a discrimination claim against the defendant. It is

from this decision that Banks appeals.

Resp. App. 13

Il.

Construing Banks’ pro se briefs liberally, Haines v. Kerner,

404 U.S. 519, 520-21 (1972); Bates v. Jean, 745 F.2d 1146,

1150 (7th Cir. 1984), Banks contends the district court erred

in concluding that he was not discharged in retaliation for

filing a discrimination claim. ““To establish a prima facie

case of retaliatory discharge under 42 U.S.C. § 2000e.3, the

plaintiff must show: (1) he opposed an employment practice

that was unlawful within the meaning of Title VII; (2) he

suffered an adverse action by his employer; (3) because of

his opposition or participation.” (footnote omitted). Klein,

slip op. at 7; Rucker v. Higher Educational Aids Bd., 669

F.2d 1179, 1182. The plaintiff must additionally establish

that the employer “would not have taken the adverse ac-

tion ‘but for’ his opposition or participation.” Klein, slip op.

at 8 citing McCluney v. Jos. Schlitz Brewing Co., 728 F.2d

924, 928 (7th Cir. 1984).

The prima facie proof analysis set forth in McDonnell

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

to retaliatory discharge claims. See Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 235 n. 5 (1981)

(The McDonnell analysis is flexible and adaptable to differ-

ent fact situations); Klein, slip op. at 7, n. 3. Once the plain-

tiff establishes a prima facie case of employment

discrimination, a rebuttable presumption of discrimination

arises and the burden then shifts to the defendant to rebut

the discrimination by articulating a legitimate, non-

discriminatory reason for its action. McDonnell Douglas, 411

U.S. at 802. If the defendant successfully rebuts the

presumption of discrimination, the plaintiff must have the

opportunity to demonstrate that the alleged reason for the

employment action was merely pretextual. Id.

Ill.

In the present case, we vacated the award of summary

judgment on the retaliation claim and remanded this case

Resp. App. 14

to the district court for further proceedings. On remand,

Banks tried his retaliation claim before the district court

and, at the conclusion of the trial, the district court entered

judgment for the defendant, finding that Banks had failed

to demonstrate that he was discharged in retaliation for fil-

ing a complaint against the defendant. “In this Title VII

case, our ultimate task is ‘to determine whether the [plain-

tiffs have] proven that the defendants have discriminated

against [them].” Mozee, 746 F.2d at 369, citing Epstein v.

Secretary, 739 F.2d 274, 278 (7th Cir. 1984). Our review of

the district court’s fact-findings is governed by the clearly

erroneous test, Fed. R. Civ. P. 52(a), Suson v. Zenith Radio

Corp., 763 F.2d 304, 307 (7th Cir. 1985), while our review

of the district court’s ultimate conclusion of discrimination

vel non is not so constrained. Mozee, 746 F.2d at 369; Ep-

stein, 739 F.2d 274, 278-79 (7th Cir. 1984). After a careful

review of the record, we concur with the district court’s find-

ing that Banks failed to establish that he was discharged

in retaliation for filing a discrimination claim against the

defendant.

The record reflects that Banks was hired by the defendant

as a jeweler in 1972, that Banks filed a discrimination claim

against the defendant relating to methods of payment on

November 28, 1978, and that Banks left employment with

the defendant on March 28, 1980, 16 months later. Banks

then filed his second discrimination claim, alleging that he

had been discharged in retaliation for filing his discrimi-

nation claim 16 months earlier. During this sixteen month

period, Banks’ work assignments and hours remained the

same. On March 28, 1980, a dispute arose over repairs com-

pleted by Banks on a bracelet. Freinik, Banks’ supervisor,

requested Banks to redo repairs to the bracelet because they

had not been completed correctly the first time. The defen-

dant’s policy in effect at the time required all employees

to redo work again for various reasons, regardless of whose

fault it was. Banks declined to redo the work. Freinik noti-

fied Sadow, the vice-president of the company, who called

Banks into his office and an argument ensued. Banks con-

Resp. App. 15

tended that Sadow brought up the discrimination charge

at the meeting (although he could not remember what was

said about it) and that Freinik stated to Sadow that if Banks

was not fired, Freinik would quit. Banks also contended that

he had discussed the discrimination charges with Freinik

prior to the meeting: Banks testified that he was terminat-

ed at the meeting, allegedly in retaliation for filing the dis-

crimination claim sixteen months earlier against the

defendant. :

Freinik testified that Banks was not terminated at the

meeting but simply told that he had the option of perform-

ing the requested work or quitting and that Banks then

stormed out of the meeting, picked up his tools and left. Frei-

nik testified that the discrimination charge was never men-

tioned at the meeting with Sadow. Sadow testified that

Freinik came into his office, complaining that Banks had

refused to perform repairs upon a bracelet. Sadow called

Banks into his office and Banks once again reiterated that

he would not perform the jewelry repairs. At that point,

Sadow told Banks that “it’s a free country, you can work

anyplace you want... if you want to quit, you can quit,”

(R. at 104). Banks then left the office, picked up his tools

and left. Finally, Costigan, an employee of the defendant,

testified that he was present in the shop at the time of the

argument. Costigan saw Banks storm out of Sadow’s office,

throw his tools in a bag and leave. He stated that although

he was aware that Banks had filed a discrimination charge

against the defendant, he does not recall Banks being treat-

ed any differently than the other employees.

Basically, this case hinges on a question of credibility

which we are hesitant to second-guess on appeal absent clear

error. Andersen v. City of Bessemer City, US. :

105 S. Ct. 1504, 1512-13 (1985); In re Lemmon & Co., Inc.,

742 F.2d 1064, 1070 (7th Cir. 1984); Luedtke Eng. Co. v. Ind.

Limestone Co., 740 F.2d 598, 601 (7th Cir. 1984); Walsh v.

Brewer, 733 F.2d 473, 477 (7th Cir. 1984). Ample evidence

supported the district court’s determination that Banks was

not discharged in retaliation for filing a discrimination

Resp. App. 16

claim. Sixteen months passed between the time that Banks

filed his discrimination claim and his subsequent termina-

tion of employment with the defendant. Banks himself was

unable to point to overt instances of harassment or discrimi-

nation arising from the discrimination charge which he

filed. Although Banks testified that Sadow fired him in

retaliation for filing the claim, both Sadow and Freinik tes-

tified otherwise. As such, we agree with the district court

that Banks failed to establish that he was terminated in

retaliation for filing a discrimination claim against the

defendant.

AFFIRMED

? THE COURT: Now why do you think one year and four months later, when

you were discharged, that you were discharged for filing that complaint on Novem-

ber 28, 1978? Why do you think that?

A. Why do I think it? Simply because at the time from November of ’78 until

I was terminated, the type of work they needed done, I was the only one who was

doing it. And this was in regards to their sales. As the year progressed, Mr. Frei-

nik, who had gotten a friend of his and a couple outside stores to do some of the

repairs, Mr. Freinik had become a little more hostile toward me in that category.

Simply because I am assuming he did not feel I was no longer needed. That fol-

lowed up with his threats as far as my being terminated.

Resp. App. 17

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

September 26, 1985

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. JESSE E. ESCHBACH, Circuit Judge

IRA BANKS, Plaintiff-Appellant,

v.

FINLEY-SELIGMAN & LATZ, INC., Defendant-Appellee.

No. 85-1188

Appeal from the United States District Court for the Eastern

District of Wisconsin.

No. 80 C 1056

John W. Reynolds, Judge

ORDER

On consideration of the petition for rehearing filed in the

above-entitled cause by plaintiff-appellant, all of the judges

on the panel have voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.