Appendix — Von Zuckerstein v. Argonne National Laboratory

INDEX TO APPENDIX

APP.

PAGE

Opinion and Order of the United States Court of

Appeals for the Seventh Circuit, No. 91-2490,

decided January 29, 1993 .................. 1]

Opinion of the District Court, dated March 26,

a Pe re ee re ee ee en a 17

Oral Ruling of the District Court, dated April 24,

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Memorandum and Order of the District Court.

bbe Meee Sh, TOO) oon ccccccccsivcnccse. 62

Order of the United States Court of Appeals for

the Seventh Circuit denying rehearing, dated

PE Bi Eo Fao 69 ao Ah eR RES 70

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 91-2490

IVAN VON ZUCKERSTEIN, Dr. DEVABHAKTUNI RAMASWAMI.

Dr. MOHAN JAIN, and JOSIP VRESK,

Plaintiffs-Appellants,

v.

ARGONNE NATIONAL LABORATORY,

Defendant-A ppellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 86 C 6304—James B. Moran, Judge.

ARGUED SEPTEMBER 23, 1992—DEcIDED JANUARY 29, 1993

Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge. At the beginning of 1983, Dr.

Devabhaktuni Ramaswami, Ivan Von Zuckerstein, Dr.

Mohan Jain, and Josip Vresk were all employees of Ar-

gonne National Laboratory (““Argonne’’). During 1983 and

1984, Argonne initiated lay offs due to reductions in fund-

ing. Von Zuckerstein was terminated at the end of 1983.

In 1984 Vresk was transferred and reassigned. Jain and

Ramaswami were terminated in 1985. Ramaswami, who

is Indian by birth, Von Zuckerstein—German, Jain—also

Indian, and Vresk—Croat, brought various section 1981

and Title VII claims, alleging that discrimination based

App. 2

on national origin and race motivated these employment

decisions. After plaintiffs’ argument, Argonne moved for

a directed verdict on the section 1981 claims. The district

court granted the directed verdict motion under Fed. R.

Civ. P. 50 and dismissed the Title VII claims pursuant

to Fed. R. Civ. P. 41(b).! We affirm.

I.

Making sense of the various claims brought by the plain-

tiffs requires some background information. Argonne em-

ploys thousands of research scientists and engineers, and

each scientist or engineer has responsibilities in two over-

lapping branches of Argonne’s hierarchy—administrative

and programmatic. Each scientist or engineer receives a

position title that generally describes the functions per-

formed by him or her (e.g., economist). Each job title has

three gradations: assistant, full, and senior.

Each Argonne employee is assigned to a division; the

divisions relevant to this case are Energy and Environ-

mental Systems (“EES”) and Engineering (“ENG’’). Every

division has a director, one or more associate directors,

section heads and supervisors. Division supervisors com-

pile evaluations of employees within their section. During

the period at issue in this case, if the senior personnel

of a scientist’s or engineer’s division believed that he or

she merited a promotion, the division put together a case

and submitted it to Argonne’s Personnel Committee A.

Among the factors considered in evaluating a request for

a promotion are the acknowledged professional standing

of the candidate, continued leadership in research, and a

noteworthy record of publications.

In addition, each of the scientific and engineering proj-

ects at Argonne had its own reporting structure organized

through programmatic positions. The person formally re-

1 Although Rule 52(c) has since replaced Rule 41(b), this opinion

shall refer to the relevant rule as 41(b).

App. 3

sponsible to Argonne for the project is designated “‘prin-

cipal investigator.” A “project manager,” who may or may

not be the same person as the principal investigator, over-

sees the project. Furthermore, the principal investigator

or project manager may be an assistant, full, or senior

scientist or engineer. The project manager is responsible

for evaluating all personnel working on the project. A

written evaluation of the performance of each scientist or

engineer is forwarded to that person’s administrative su-

pervisor, who in turn prepares summary evaluations. The

effect is that a supervisor from one division may evaluate

an employee from another division who is assigned to that

supervisor’s project.

Dr. Devabhaktuni Ramaswami began his career at Ar-

gonne in 1962 as a member of what is now Argonne’s En-

gineering Division. Except for one brief lay off in 1973,

Ramaswami continued to work without interruption un-

til the reduction in force initiated in 1983. Completion of

one aspect of a reactor upgrade project resulted in a de-

crease in demand for ENG Division personnel of Rama-

swami’s skill level, and he was scheduled to be laid off.

Rather than being immediately laid off, he received a

series of temporary assignments in the EES Division.

Prior to his final assignment, Ramaswami elected to take

an extended vacation. He was terminated in September,

1985. Although he subsequently applied for three positions

after his termination, Ramaswami did not receive an of-

fer of employment.

In 1976, Ivan Von Zuckerstein began working as an as-

sistant economist in Argonne’s EES Division. His func-

tional job title was systems application economist. When

the EES Division was forced to eliminate a number of

staff positions because of funding cutbacks, Von Zucker-

stein was terminated in June, 1983. He claims to have

applied subsequently for more than fifty unspecified po-

sitions at Argonne, but other testimony confirmed only

eight applications. He was not rehired.

Dr. Mohan Jain was hired as an assistant mechanical

engineer in the EES Division in 1980. Jain’s primary re-

———————

App. 4

sponsibilities were in Argonne’s Industrial Cogeneration

project, for which he served as a principal investigator.

After being removed as principal investigator in 1983, he

continued to work on the project until his termination in

January, 1985. After his termination, Jain applied for a

few unspecified positions at the lab but did not receive

any job offers.

Josip Vresk began work with Argonne in 1975 as an

engineering specialist in the ENG Division. In May, 1981,

he was promoted from specialist to full mechanical en-

gineer. In 1984, Vresk’s section was relocated from the

ENG Division to the Plant Systems Divisions to form the

Plant Facilities and Services Division. As part of this re-

organization, Vresk’s section was divided into several sec-

tions, including a Project Management section and Engi-

neering section. Vresk was assigned to the Engineering

section. Vresk continues to work at Argonne.

IT.

Plaintiffs first contend that the district court denied

them their Seventh Amendment right to a jury trial by

impermissibly weighing evidence when it ruled on the

Rule 50 directed verdict motion. Setting aside for the mo-

ment the question of weighing evidence, the prejudice to

plaintiffs’ Seventh Amendment right apparently lies in

foreclosing the jury’s opportunity to decide whether dis-

crimination occurred by directing a verdict. While a di-

rected verdict does inevitably preclude a decision by the

jury, it certainly does not violate the Seventh Amendment

by virtue of that fact alone. On the present facts, if the

district court had directed a verdict on plaintiffs’ section

1981 claims because it had dismissed their Title VII claims,

its directed verdict would then rise to the level of a denial

of the Seventh Amendment right to a jury trial. See, e.g.,

Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 355-57

(7th Cir. 1987). In this instance the district court did not

decide plaintiffs’ Title VII claims prior to their section

1981 claims. Thus, the only prejudice alleged here is the

directed verdict itself, which is no prejudice at all:

App. 5

ITI.

Plaintiffs further contend that the district court improp-

erly weighed the evidence in deciding the motion for di-

rected verdict. Under our de novo review of the record,

this court will affirm if it finds that “under the govern-

ing law, there can be but one reasonable conclusion as

to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); see

Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir.

1988). The evidence is construed in the light most favor-

able to the plaintiffs. Unless we find evidence sufficient

to sustain a jury verdict in favor of the plaintiffs, we will

affirm the decision of the district court. Liberty Lobby,

477 U.S. at 252; Lytle v. Household Mfg., Inc., 494 U.S.

545, 554, 110 S.Ct. 1331, 13838, 108 L.Ed.2d 504 (1990).

While the district court may not resolve conflicts in the

testimony or weigh the evidence, it may evaluate evidence

at least to the extent of determining whether there is

substantial evidence to support the verdict. “{A] mere

seintilla of evidence will not suffice.” La Montagne v.

American Convenience Products, Inc., 750 F.2d 1405, 1410

(7th Cir. 1984).

A.

As a preliminary matter, it is necessary to sort out what

claims plaintiffs were attempting to bring. Plaintiffs al-

leged discriminatory behavior by Argonne that violates

section 1981 and Title VII in the denial of promotion, re-

hiring, and access to grievance procedures as well as in

its lay-off procedure, and discriminatory retaliation and

demotion. Section 1981 provides that “‘{aJll persons...

shall have the same right . . . to make and enforce con-

tracts, . . . as is enjoyed by white citizens.” 42 U.S.C.

§ 1981 (1988). In Patterson v. McLean Credit Union, the

Supreme Court circumscribed the scope of section 1981 to

“the enumerated rights within its express protection, spe-

cifically the right to make and enforce contracts.” 491 U.S.

App. 6

164, 181, 109 S.Ct. 2363, 2375, 105 L.Ed.2d 132 (1989).2

Thus, under this narrow reading, only plaintiffs’ denial

of promotion, failure to rehire, and denial of access to

grievance procedures are cognizable under section 1981

as well as Title VII. The lay off, retaliation, and demo-

tion claims fall exclusively under Title VII.

For the section 1981 claims, plaintiffs alleged in their

complaint that the discrimination occurred because the plain-

tiffs were “foreign born.” Unfortunately for the plaintiffs,

claims founded on that status are not cognizable under

section 1981, which is designed to remedy discrimination

based on race or ethnicity. Certainly, the line between

national origin and race or ethnicity for section 1981 claims

cannot be bright. The Supreme Court acknowledged this

fact implicitly in its decision in St. Francis College v. Al-

Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.

Ed.2d 582 (1987). “Congress intended to protect from dis-

crimination identifiable classes of persons who are sub-

jected to intentional discrimination solely because of their

ancestry or ethnic characteristics .... rather than sole-

ly on the place or nation of his origin.” Of course, what

is not clear from the Court’s brief exposition is when the

place or nation of origin, which would not be actionable

under section 1981, determines ancestry or ethnic charac-

teristics, which would be actionable. Plaintiffs’ case would

have been stronger had they alleged and argued discrim-

ination based on race or ethnicity rather than national

origin; however, failure to plead discrimination based on

2 The Civil Rights Act of 1991 has since overruled this portion

of Patterson. See 42 U.S.C. § 1981(b) (defining broadly the right to

“make and enforce contracts’). However, the Civil Rights Act of

1991 does not apply retroactively to these cases. Mozee v. American

Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir. 1992), cert.

denied, 113 S.Ct. 207 (1992). Consequently, this case represents

one of the few in which we still apply the Patterson standards.

3 Title VII specifically allows for claims stemming from discrimi-

nation on the basis of “race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2 (1981).

App. 7

race or ethnicity for section 1981 purposes is not neces-

sarily fatal to their cause. See, e.g., Lopez v. S.B. Thomas,

Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (section 1981 pro-

tection extended to employee of Puerto Rican descent who

alleged national origin discrimination).

B

While section 1981 and Title VII differ in the types of

discrimination they proscribe, the methods of proof and

elements of the case are essentially identical. Bailey v.

Northern Indiana Public Service Co., 910 F.2d 406, 410

(7th Cir. 1990). A plaintiff bringing suit under section 1981

or Title VII can meet his burden of proof for establishing

intentional discrimination either through direct proof of dis-

criminatory intent, Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), or through

the indirect, burden-shifting method of proof first elabo-

rated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). While the plaintiffs

may have offered evidence of racial animus on the part

of supervisors at Argonne, none has offered any direct

evidence of discriminatory intent on the part of Argonne.

Consequently, plaintiffs must rely on the burden-shifting

method of proof.

McDonnell Douglas analysis requires first that the plain-

tiff establish the alleged discriminatory acts. The defen-

dant must then offer legitimate nondiscriminatory explana-

tions for those acts. A plaintiff may then attempt to show

why the defendant’s stated justifications are pretextual.

With respect to the failure to promote, a plaintiff must

prove by a preponderance of the evidence that the plain-

tiff is a member of a protected group, that the plaintiff

applied for and was qualified for the position sought, that

the defendant rejected the plaintiff for the position, and

that the defendant granted that promotion to 4 person

whose race (or national origin under Title VII) was dif-

ferent from that of the plaintiff's but whose qualifications

were similar or less than those of the plaintiff. Jd. »t 802,

—— ——

App. 8

93 S.Ct. at 1824; see Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1093-94,

67 L.Ed.2d 207 (1981).

In an allegation of a failure to promote, a preliminary

consideration is whether the positions sought by the plain-

tiffs constituted ‘“‘an opportunity for a new and distinct

relation between the employee and the employer.”’ Pat-

terson at 185, 109 S.Ct. at 2877; McKnight v. General

Motors Corp., 908 F.2d 104, 110 (7th Cir. 1990), cert. de-

nied, 111 S.Ct. 1306 (1991). As this court has already rec-

ognized, the ‘“‘new and distinct relation” standard is dif-

ficult to apply. Partee v. Metropolitan School Dist., 954

F.2d 454, 457 (7th Cir. 1992); McKnight, 908 F.2d at 109-

10. Application of this standard in this instance is partic-

ularly awkward because of the dual track system of ap-

pointments and assignments at Argonne.

The fact that, in each case, the plaintiffs merely assert

a new and distinct relation without further analysis or the

defendant claims the contrary does impede our analysis

to a certain extent. The record in this regard is rather

sparse. Nonetheless, among the circuits it would appear

that neither an increase in pay alone, Harrison v. Asso-

ciates Corp. of North America, 917 F.2d 195, 198 (5th Cir.

1990), nor a simple change in status involving no addi-

tional responsibilities, Bennun v. Rutgers State Univ., 941

F.2d 154, 168-70 (8d Cir. 1991), cert. denied, 112 S.Ct. 956

(1992), constitutes a new and distinct relation under Pat-

terson. Therefore, at a superficial level, an Argonne scien-

tist or engineer elevated from associate to full or full to

senior does receive a higher salary, an increase in pres-

tige, and additional responsibilities. On the record before

us, however, we are not prepared to say that the change

rises to the level of a “new and distinct relation.” Even

assuming, arguendo, that such a claim would meet the

Patterson standard, plaintiffs’ claims would not succeed

for another reason.

Senior scientist positions are very competitive at Ar-

gonne, and the decision to promote is based on a number

App. 9

of considerations. Ramaswami, lacking any direct evidence

of discrimination against Indians, alleges that his denial

of elevation to senior status constitutes discrimination.

However, the record shows that no one among the senior

personnel in his division considered Ramaswami eligible

for the position of senior scientist inasmuch as none of

them pushed for his promotion. Thus, Ramaswami cannot

succeed on this claim without something more.

Von Zuckerstein similarly relies on the indirect method

of establishing discrimination, arguing that first hostility

toward Central European Jews and later, in a puzzling

about-face, hostility toward Germans resulted in his denial

of promotion to full scientist. Other than his own asser-

tions, Von Zuckerstein offered no evidence of discrimina-

tion. More importantly, Von Zuckerstein’s failure to achieve

the rank of full scientist appear to lie in his sparse publica-

tion record and his inability to work independently. As

a result, none of his superiors ever presented a case for

his elevation to Personnel Committee A. Finally, no evi-

dence was presented that someone with a similar or less

qualified background was promoted to the positions Von

Zuckerstein sought.

Jain does not specifically allege the denial of promotion.

(The refusal of Argonne to restore Jain to the post of prin-

cipal investigator does not constitute a failure to promote.)

In his testimony he does refer to a single instance in

which he was not elevated. (Tr. 1849). However, the job

position was available for a full mechanical engineer; since

Jain was only an assistant mechanical engineer at that

time, he did not meet the qualifications for that position.

Because he did not formally pursue a promotion through

Personnel Committee A, Jain cannot therefore argue dis-

crimination in a denial of promotion as such.

Vresk does not claim a denial of promotion in the sense

of not being elevated from assistant to full engineer; he

was already a full mechanical engineer. Rather, he claims

that he should have been placed in the Project Manage-

ment Section of the PFS Division when his section was

App. 10

moved from EES and broken up. This promotion claim

is based on a denial of a programmatic rather than an

administrative promotion. To succeed such a claim must

“rise[ ] to the level of an opportunity for a new and

distinct relation between the employee and the employer.”

Patterson, 491 U.S. at 185, 109 S.Ct. at 2377. Because

of the overlapping assignments on the administrative and

programmatic ladders and temporary nature of many of

the programmatic assignments, it would appear that the

programmatic promotion allegedly denied to Vresk on ra-

cial grounds does not rise to the level of a claim actionable

under section 1981.

C.

Similar to a failure to promote claim, a failure to rehire

turns on proof by a preponderance of the evidence that

the plaintiff is a member of a protected group, that the

plaintiff applied for and was qualified for the position

sought, that the defendant rejected the plaintiff for the

position, and that the defendant hired or continued to seek

a person whose race (or national origin under Title VII)

was different from that of the plaintiff's but whose quali-

fications were similar or less that those of the plaintiff.

McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824;

see Burdine, 450 U.S. at 254, 101 S.Ct. at 1093-94. It is

not enough for plaintiffs to state that they were rejected

for positions at Argonne.* They would need to show that

they were qualified for the positions sought as well as

to offer evidence either that Argonne deliberately left

positions open to avoid rehiring plaintiffs or that Argonne

continued to seek applicants with qualifications similar to

those of the plaintiffs.

None of the plaintiffs has presented sufficient evidence

to maintain such a claim. Ramaswami requested transfers

4 For the remainder of the opinion, “plaintiffs” refers only to

Ramaswami, Von Zuckerstein, and Jain since Vresk is still em-

ployed at Argonne.

di

App. 11

to three positions prior to being laid off and presented

evidence of the qualifications required by Argonne for

these positions—two of which sought senior engineers and

the other a manager. Assuming that the denial of the re-

quest alone constitutes a prima facie case of discriminatory

failure to rehire, Ramaswami failed to show that Argonne’s

reasons (lack of necessary qualifications for the senior posi-

tions and insufficient managerial skills) were pretextual.

Von Zuckerstein did not identify any specific positions

that he may have sought. This testimony alone does not

allow even an assessment of whether he would have met

the qualifications necessary for those positions or whether

Argonne continued to solicit others for those positions.

In addition, Von Zuckerstein did not challenge the testi-

mony of another Argonne employee who testified to Von

Zuckerstein’s lack of qualifications for eight positions

sought. Jain similarly failed to identify the specific job

descriptions and qualifications for the two positions he

sought after being laid off. Determinations of the qualifica-

tions for such positions require more detail to measure

the particular requirements than would be evident from

generic job titles.

D.

Plaintiffs additionally contend that Argonne denied them

access to a complete “‘equity review” in accordance with

Argonne’s internal grievance procedures. Under Argonne’s

equity review procedure, the highest official who approved

the initial lay off reviews the employee’s complaint as well

as the lay-off package. If this person again approves the

lay off, the Laboratory Director or his designate conducts

a final review of the complainant’s record. The equity re-

views of Von Zuckerstein and Jain were pursued to their

conclusions and both received letters confirming their lay

offs. Although Ramaswami’s internal equity review was

interrupted by his filing a claim with the EEOC, he was

not prejudiced because Argonne’s investigation of griev-

ances filed with the EEOC did not differ meaningfully

from its own internal procedures. Ultimately, Argonne

App. 12

communicated the results of its review to the EEOC rather

than notifying Ramaswami directly. None of the plaintiffs

were prejudiced under these circumstances.

IV.

The remainder of plaintiffs’ claims—for the lay offs, re-

taliation, and, in the case of Jain, demotion—are cognizable

only under Title VII. The district court dismissed these

claims pursuant to Rule 41(b).5 In making this determina-

tion, the court is within its prerogative “to weigh the evi-

dence, resolve any conflicts in it, and decide for itself

where the preponderance lies.” Sanders v. General Ser-

vices Administration, 707 F.2d 969, 971 (7th Cir. 1983).

We review such a dismissal for an abuse of discretion. /d.

A.

Plaintiffs challenge both the choices made in the course

of the reduction in force, namely themselves, as well as

the financial justifications for the lay offs. As far as Ar-

gonne’s financial justifications go, this court is reluctant

to judge Argonne’s business decisions if they are made

in good faith. See Aungst v. Westinghouse Electric Corp.,

937 F.2d 1216, 1224 (7th Cir. 1991). Certainly, the evidence

presented does not indicate any lack of good faith on Ar-

gonne’s part. Argonne conducted extensive reviews of can-

didates for lay offs subsequent to the cutbacks in funding.

5 Plaintiffs attempt to argue that the district court granted the

Rule 41(b) motion on the retaliation claims prior to the close of

their case-in-chief. See Fed. R. Civ. P. 52(c) In its ruling from the

bench on April 24, 1991, the district court deferred consideration

of the Title VII issues. Plaintiffs had acknowledged that the only

Title VII matters they wished to add were jurisdictional in nature

and not about damages. (Tr. 2427). Moreover, the trial court con-

sidered post-discharge exhibits that may not have been relevant

to the jury issues. Consequently, plaintiffs cannot resuscitate these

claims on appeal after conceding at trial that they had effectively

concluded the presentation of their case.

App. 13

The fact that funding became available for other divisions

or at a later date would not undermine the earlier deci-

sions by Argonne.

With respect to the lay-off claims themselves, the court

engages in the McDonnell Douglas analysis. 411 U.S. at

802, 93 S.Ct. at 1824. The first stage of this analysis re-

quires that plaintiffs establish a prima facie case of dis-

crimination.

In the case of a reduction of force, a prima facie case

is established with a “showing that [the employee]

was within the protected [class], that [the employee]

was performing according to his employer’s legitimate

expectations, that [the employee] was terminated, and

that others not in the protected class were treated

more favorably.”

Williams v. Williams Electronics, Inc., 856 F.2d 920, 922-

23 (7th Cir. 1988). It is not clear that any of the plain-

tiffs have even established a prima facie case of discrimi-

nation. For example, in the case of Von Zuckerstein, the

only systems application economist retained after the re-

duction in force was foreign-born. (Tr. 657).

Assuming, as the plaintiffs apparently do, that only as-

serting discrimination against foreign-born employees at

Argonne is sufficient, the next contention is that the rea-

sons advanced by Argonne for the reduction in force—

the reduction in funding—were pretextual. According to

the procedures Argonne used, each plaintiff was laid off

after his abilities as reflected in the evaluations were com-

pared with other employees in positions for which the can-

didate for lay off was minimally qualified. Plaintiffs pre-

sented no evidence that the lower evaluations of these

plaintiffs, or of any other foreign-born employee also laid

off, were due to intentional discrimination. Consequent-

ly, the district court’s reliance on the existence of multi-

ple evaluations and a diffuse decisionmaking process to

rebut any indication of pretext was not clearly erroneous.

App. 14

B.

The three plaintiffs also claim that Argonne retaliated

against them by refusing to rehire them after they filed

discrimination charges. In order to succeed on this claim,

plaintiffs must establish the causal link between the fil-

ing of a discrimination claim and the refusal to rehire.

See King v. Board of Regents of Univ. of Wisconsin Sys-

tem, 898 F.2d 533, 540 (7th Cir. 1990). In other words,

a plaint’!? must show that the filing itself motivated the

decision not to rehire. A Title VII retaliation claim also

requires plaintiffs to identify positions for which they ap-

plied or to introduce evidence that they were qualified for

any available positions or to show that Argonne continued

to seek applicants for or filled positions with people whose

qualifications were the same or less than plaintiffs. As

discussed above, plaintiffs either have not identified posi-

tions to which they applied after termination or have failed

to meet Argonne’s qualifications for a position specifically

identified. As we held in King, the denial of a position

by an employer cannot be retaliatory if the applicant is

not qualified for the position. 898 F.2d at 540. Thus, there

is nothing in the record to suggest that the district court’s

decision to dismiss the retaliation claims was clearly erro-

neous.

C.

Finally, Jain contends that his removal as principal in-

vestigator of the Industrial Cogeneration Project was ra-

cially motivated. Plaintiff's witness testified to a conver-

sation in 1983 with two administrative personnel in which

one of the administrators claimed that “the sponsor did

not want an Indian in charge of the program.” (Tr. 425).

Roth of those administrators deny such a statement was

made. (Tr. 679, 820). Subsequent to the alleged statement,

Jain was removed as principal investigator although he

continued to exercise programmatic responsibilities on this

project. Assuming that this conversation did take place,

Jain would have established by inference the existence

App. 15

of a racial motivation for his removal. However, adminis-

trative supervisors from Argonne testified to other credi-

ble reasons for his removal, prinicipally extreme delays

in the project. Jain offered no reason to suggest that this

explanation was pretextual. Consequently, we cannot con-

clude that the district court’s decision to dismiss this claim

was clearly erroneous.

For the foregoing reasons, the decision of the district

court is AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 16

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT — WITH ORAL ARGUMENT

Date: January 29, 1993

BEFORE:

Honorable WALTER J. CUMMINGS, Circuit Judge

Honorable JOEL M. FLAuM, Circuit Judge

~

Honorable MICHAEL S. KANNE, Circuit Judge

No. 91-2490

IvAN V. ZUCKERSTEIN, DEVABHAKTUNI RAMASWAMI,

MOHAN JAIN, et al., ae

Plaintiffs-Appellants

ARGONNE NATIONAL LABORATORY,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 86 C 6304, James B. Moran, Chief Judge

This cause was heard on the record from the above

mentioned District Court, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this court that the judgment of the District

Court is AFFIRMED, with costs, in accordance with the

decision of this court entered this date.

App. 17

IVAN VON ZUCKERSTEIN,

et al., Plaintiffs,

Vv.

ARGONNE NATIONAL

LABORATORY, Defendant.

No. 86 C 6304

United States District Court

N.D. Illinois, E.D.

March 26, 1991.

* eK kK *

MEMORANDUM AND ORDER

MORAN, Chief Judge.

Nearly five years ago, plaintiffs Ivan Von Zuckerstein

(“Von Zuckerstein”), Devabhaktuni Ramaswami (““Rama-

swami”’), Han Chang (“Han Chang’’), Mohan Jain (“Jain”’),

and Josip Vresk (‘‘Vresk’’) filed this action against defen-

dant Argonne National Laboratory (“Argonne’’), their for-

mer (or, in the case of Vresk, present) employer, under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(1988) (“Title VII”), and 42 U.S.C. § 1981 (1988) (“section

1981”). With trial two months away, Argonne filed the

motions now before this court, seeking to dismiss the section

1981 claim against all plaintiffs and moving separately for

summary judgment against plaintiff Poling Chang (‘‘Poling

Chang’’), executrix of the estate of the now deceased Han

Chang. For the following reasons, the motion for sum-

- Mary judgment is denied, and the motion to dismiss is

granted in part and denied in part.

App. 18

DISCUSSION

I. Motion to Dismiss Section 1981 Claim

A. Nature of Alleged Discriminaticn:

Race vs. National Origin

Section 1981, which draws from the Civil Rights Act

of 1866 and the Voting Rights Act of 1970, “prohibits

racial discrimination in the making and enforcement of

private” as well as public contracts. Runyon v. McCrary,

427 U.S. 160, 168 & n. 8, 96 S.Ct. 2586, 2593 & n. 8, 49

L.Ed.2d 415 (1976).1 In Saint Francis College v. Al-

Khazrayi, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582

(1987), the Supreme Court, after examining the legislative

history of section 1981 and the nineteenth century under-

standing of the term “‘race,’”’ concluded that Congress in-

tended, through section 1981’s proscription of racial dis-

crimination, ‘“‘to protect from discrimination identifiable

classes of persons who are subject to international dis-

crimination solely because of their ancestry or ethnic char-

acteristics.”’ 481 U.S. at 613, 107 S.Ct. at 2028. While

establishing this expansive definition of racial discrimina-

tion, however, the Court also noted that certain claims—

those based “‘solely on the place or nation of (the plain-

tiffs] origin, or his religion,” id., are not actionable under

section 1981. Relying on this latter language, Argonne

1 Section 1981 provides:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and

enforce contract, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for the securi-

ty of persons and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981 (1988).

App. 19

asserts that plaintiffs’ section 1981 claims should all be

dismissed because the discrimination alleged in the com-

plaint is based on plaintiffs’ national origin. Ve disagree.

We begin with an analysis of plaintiffs’ third amended

complaint. Two paragraphs complain generally of discrim-

ination on the basis of “‘national origin, race and color”

(Complaint 441, 8). Paragraph 3 characterizes each of the

five plaintiffs as “immigrants from non-English speaking

countries” and identifies them individually:

Plaintiff Von Zuckerstein is of Central European

Jewish origin. Plaintiffs Ramaswami and Jain are of

East Indian origin and non-white complexion. Plain-

tiff Chang is an Asian of Chinese origin and non-white

complexion. Plaintiff Vresk is of Yugoslav origin.

Argonne discriminated against Ramaswami, Jain, and

Chang, the complaint asserts at paragraph 12, “on the

basis of national origin, race and color” and against Von

Zuckerstein and Vresk “on the basis of their national

origin.” In paragraph 9, the complaint describes in gen-

eral terms the manifestations of Argonne’s discrimination;

the subparagraphs are couched in terms of discrimination

against “immigrants” in favor of “native born Americans.”

The complaint proceeds in paragraph 10 to enumerate the

specific discriminatory conduct that has injured the indi-

vidual plaintiffs, asserting in some of the subparagraphs

that “native born employees” were treated more favor-

ably. The repeated reference to discrimination against

employees ‘‘who immigrated to the United States from

non-English speaking countries”’ in favor of ‘‘native born

Americans,”’ Argonne argues, demonstrates that the “heart

and soul” of plaintiffs’ case is discrimination on the basis

of national origin.

Argonne’s argument with respect to Chang, Jain, and

Ramaswami is clearly untenable. Quoting paragraph 8 of

App. 20

the complaint, Argonne observes in its memorandum, un-

derscoring for emphasis, that the plaintiffs allege discrim-

ination against its employees who immigrated to the

United States from non-English speaking countries. But

the cited paragraph goes on to observe that this discrim-

ination is based on the foreign-born employee’s ‘“‘national

origin, race and color.”’ (Emphasis added). Paragraph 12,

moreover, explicitly asserts that Argonne discriminated

against Chang, Jain, and Ramaswami “‘on the basis of na-

tional origin, race and color.”’ These express allegations

of racial discrimination are sufficient to defeat Argonne’s

motion to dismiss. See Sajous v. First National Bank, No.

87 C 3564, 1987 WL 28403 (N.D. Ill. Dec. 21, 1987) (sec-

tion 1981 claim not dismissed where plaintiff alleged dis-

crimination based on his race and his national origin);

Adames v. Mitsubishi Bank, Ltd., 751 F.Supp. 1548, 1560

(E.D.N.Y. 1990) (plaintiff ‘‘clearly stated an actionable

claim under section 1981” by “‘alleging racial as well as

national origin discrimination’’).

That the complaint refers in several paragraphs to dis-

crimination against immigrants in favor of native-born

Americans is of no moment. Despite the clear theoretical

distinction between discrimination based on national origin

and discrimination based on ancestry or ethnic character-

istics (the former is actionable under section 1981, the

latter is not), in practice, the line between these two con-

cepts “is not a bright one.”’ Saint Francis, 481 U.S. at

614, 107 S.Ct. at 2028 (Brennan, J., concurring); Korpai

v. A.W. Zengeler’s Grande Cleaners, No. 85 C 9130, 1987

WL 20428 (N.D.II]. Nov. 24, 1987). To the extent that it

is clear from the complaint that a plaintiff ‘“‘is not only

alleging discrimination on the basis of [his] place of origin

without regard for [his] ethnic background,” Cuello-Swarez

v. Autoridad de Energia Electrica, 737 F.Supp. 1248, 1248

App. 21

(D.P.R. 1990), the claim is cognizable under section 1981.

Paragraphs 1, 3, and 12 all suggest a racial animus be-

hind Argonne’s discrimination against Chang, Jain, and

Ramaswami, and paragraph 8 makes clear that the term

“discrimination against immigrants” incorporates discrim-

ination on the basis of race and color as well as national

origin. In light of these references to race and ethnicity,

it is apparent that the allegations of discrimination in

those paragraphs that do not explicitly mention race or

ethnicity were made with regard for the ethnic back-

grounds of the plaintiffs. It is improper for this court,

moreover, on motion to dismiss, to sift through the vari-

ous allegations of the complaint to determine the true

“heart and soul” of plaintiffs’ case; we must construe the

allegations and reasonable inferences that can be drawn

from them in the light most favorable to the plaintiff. See

Powe v. Chicago, 664 F.2d 639, 642 (7th Cir. 1981).

Von Zuckerstein’s section 1981 claim stands on slightly

wobblier legs. In paragraph 12 of the complaint, after al-

leging that Argonne discriminated against Ramaswami,

Chang, and Jain on the basis of national origin, race, and

color, plaintiffs assert that the discrimination against Von

Zuckerstein was based only on national origin. Von Zucker-

stein is entitled to proceed under a section 1981 theory,

however, so long as ‘an allegation of racial animus [is]

explicit or reasonably inferable from the pleadings.” Anooya

v. Hilton Hotels Corp., 733 F.2d 48, 50 (7th Cir. 1984)

(emphasis added); see also Cuello-Suarez, 737 F.Supp. at

1247-48 (allegation of racial discrimination inferred even

though plaintiff claimed in her pleadings that ‘“‘she had

been discriminated against because of the fact that she

was a ‘Dominican national’ and ‘on the basis of her place

of birth’”’) (emphases in original). In paragraph 3, Von

Zuckerstein characterizes himself as “of Central European

iia ie

App. 22

Jewish origin’’; this representation suggests that he iden-

tifies himself for the purpose of this lawsuit by his ethnic

rather than national heritage. The references to discrim-

ination based on his immigrant status or nationality, then,

cannot be said to have been made without regard for his

ethnic background. The juxtaposition in paragraph 12 of

the basis of the discrimination against Von Zuckerstein

(national heritage) with the basis of the discrimination

against Chang, Jain, and Ramaswami (national origin,

race, and color) might appear to create a negative impli-

cation that racial concerns did not motivate Argonne in

discriminating against Von Zuckerstein, but we find it

significant that the complaint was filed not long after

Saint Francis, which broadened the purview of “race’”’

to include “ethnicity,” was decided. Before Saint Francis,

the ethnic group in which Von Zuckerstein claims mem-

bership may not have been considered a separate “race,”’

see Budinsky v. Corning Glass Works, 425 F.Supp. 786,

788 (W.D.Pa. 1977), and therefore “‘racial discrimination”’

would have been a misnomer when applied to Von Zucker-

stein.

Argonne’s argument is strongest with respect to Vresk,

who, like Von Zuckerstein, alleges discrimination in para- |

graph 12 only on the basis of national origin but who iden- |

tifies himself in paragraph 3 as “of Yugoslav origin.”

Characterization as a Yugoslav inherently emphasizes na-

tionality over ethnicity, for the concept of Yugoslavia is

a political one; as recent events have illustrated, Yugo-

Slavia is not coextensive with any ethnicity but rather

comprises a multitude of them (Serb, Croat, Bosnian

Moslem, Slovene, Macedonian, and Albanian). There is

simply no such thing as an ethnic Yugoslav. That Vresk’s

four coplaintiffs have validly stated claims based at least

in part on racial discrimination, however, permits an in-

App. 23

ference that Vresk, too, is complaining of an ethnicity-

based animus and certainly puts Argonne on notice of a

claim of racial discrimination. Moreover, the four others

will shortly be going to trial on this case, including the

section 1981 claims, and we see no point in making a

precise distinction with respect to this plaintiff now, on

the eve of trial. Each plaintiff, of course, will have to

prove at that time that the discrimination against him was

based on his ethnicity and not on his nationality, and te

the extent Vresk—or any plaintiff—fails to make such a

showing, that deficiency can be addressed at the end of

plaintiffs’ case.

B. Timing of Discrimination: During the Making and

Enforcing of a Contract?

Citing Patterson v. McLean Credit Union, 491 U.S. 164,

109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), Argonne urges

this court to dismiss plaintiffs’ section 1981 claim, which

Argonne maintains relates neither to the making or en-

forcing of a contract. Although the Patterson Court reaf-

firmed the proposition established in Runyon v. McCrary

that racial discrimination involving private, as well as

public, contracts is actionable under section 1981, it simul-

taneously cut back on the scope of cognizable claims, hold-

ing that section 1981 ‘does not extend . . . to conduct

by the employer after the contract relation has been es-

tablished, including breach of the terms of the contract

or imposition of discriminatory working conditions.” 109

S.Ct. at 2373.

App. 24

1. Harassment and Miscellaneous

Post-formation Conduct

The discrimination complained of in Patterson included

racial harassment by a supervisor during the plaintiff's

employment, failure to offer training for higher level jobs,

and denial of wage increases, all of which the Court held

to be “postformation conduct”’ and therefore not action-

able, however reprehensible. 109 S.Ct. at 2374. In light

of this unambiguous precedent, plaintiffs readily admit

that their allegations of harassment and other miscellane-

ous postformation conduct cannot form the basis of a sec-

tion 1981 claim. Based on plaintiffs’ reference to Argonne’s

initial memorandum and our own understanding of the

complaint, we interpret this concession to encompass plain-

tiffs’ allegations of harassment,” denials of pay raises and

comparable compensation,? improper use of grant monies,4

2 Dismissed from the complaint on the grounds that they allege

merely harassment are ¢{ Xg) (“{ilmmigrants are given humiliating

assignments and/or are told that immigrants are either not wanted

or are not suitable for supervisory positions”’); 9h) (“(tJhe perform-

ance appraisals of immigrants are downgraded”); and parts of

11 10(a) (Von Zuckerstein was “denied recognition for his work

results, given humiliating assignments . . . [and] received false and

damaging performance appraisals”); 10(b) (Ramaswami was ‘“‘de-

nied recognition for his work results and professional awards and

distinction”); 10(c) (Jain was “given mediocre reviews when his per-

formance was excellent, . . . [and] blamed for the errors of

others’’); 10d) (Chang was “victimized by a racial slur’’).

3 Allegations of denials of pay raises are contained in 4{ 1a),

10(b), 10(c), and 10(e). Paragraphs 10(b), 10(c), and 10(e) also assert

denials of comparable compensation. Although “denial of com-

parable compensation” could be construed as discrimination at the

formation of the contract, an actionable claim, Argonne, in its

memorandum, describes it as post-formation conduct, and plain-

tiffs concede this characterization (Plaintiffs’ Response at 14).

4 See 4{ Xe); 10(a); 10(d).

eee

App. 25

and denials of access and exposure.® Accordingly, Argonne’s

motion to dismiss these allegations is granted.

2. Failure to Promote

With respect to the Patterson petitioner’s additional al-

legation that her employer violated section 1981 by failing

to promote her, the Court was more receptive. Failure-

to-promote claims may be cognizable under section 1981,

the Court held, if “the promotion rises to the level of an

opportunity for a new and distinct relation between the

employee and the employer.”’ 109 S.Ct. at 2377. Charg-

ing the plaintiffs with failing to allege that the promo-

tion constitutes “‘a new and distinct relation,”’ and further

arguing that “mere promotion to a higher level position

is not a ‘new and distinct’ relationship,’ Argonne asserts

that plaintiffs’ failure-to-promote allegations must be dis-

missed.

Whether the position to which a plaintiff might have

been promoted would have created a new and distinct

relationship between the plaintiff and his employer is a

question of fact, see Malhotra v. Cotter & Co., 885 F.2d

1305, 1811-12 (7th Cir. 1989); Cousins v. American Presi-

dent Lines, Ltd., No. 90 C 1145, 1990 WL 70324 (N.D.III.

May 16, 1990), and a thorny one at that. See McKnight

v. General Motors Corp., 908 F.2d 104, 109 (7th Cir. 1990),

cert. denied, U.S. __., 111 S.Ct. 13806, 113 L.Ed.2d

241 (1991) (“{p}recisely how different the new employment

5 Nonactionable allegations of this kind are contained in { 10(a)

(Von Zuckerstein was ‘“‘denied access to important meetings and

to program information” and “denied exposure’’). This category

does not include, however, the allegations in ¢ 10(a) that Von

Zuckerstein was “denied access into higher classified jobs’ or

“denied access to the defendant’s grievance procedure.”

App. 26

relation must be to make a racially motivated refusal to

create it actionable under section 1981 is not susceptible

of a blanket answer’’). We need not delve into that thicket,

however, for Argonne has presented the issue on motion

to dismiss.

Allegations of discriminatory failure to promote appear

in several allegations in the complaint.¢ In some para-

graphs, plaintiffs refer simply to denials of promotions to

“higher ranking positions,’ See ¢{9(b); 10(a); 10(b); ef.

{{ 10d); 10(e), while others explicitly assert that Argonne

discriminatorily failed to promote the plaintiffs’ to super-

visory or management positions. See ¢{ 9a); 9c); 10(a);

10(b). These allegations are sufficient to state a failure-

to-promote claim under section 1981. See Cousins, No. 90

C 1145; Russell v. District of Columbia, 747 F.Supp. 72,

75-76 (D.D.C. 1990). Plaintiffs’ complaint should be dis-

missed only if “it appears beyond doubt that the plain-

tiff can prove no set of facts in support of his claim which

would entitle him to relief,” Conley v. Gibson, 355 U.S.

41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); the super-

visory and management positions that plaintiffs allege

were foreclosed to them certainly could constitute new

and distinct relations. See Cousins, No. 90 C 11465 (citing

Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908

(4th Cir. 1989)). We do not understand Patterson to im-

® Some of the allegations in the complaint, such as { %c)’s asser-

tion that “(immigrants are discriminatorily barred from almost all

top supervisory and management positions” and ] 10(b)’s claim that

“Dr. Ramaswami was discriminatorily denied placement into higher

ranking positions,” could be construed as complaining either of dis-

criminatory failure to promote or discrimination in initial place-

ment. See also { 10a) (Von Zuckerstein ‘‘was discriminatorily de-

nied access into higher classified jobs’’)..Both interpretations, we

think, are reasonable, and under either theory, the allegations

should not be dismissed. See infra at 1316-17.

App. 27

pose upon plaintiffs any duty to incorporate specific lan-

guage in their complaints nor to impart any magical sig-

nificance on the phrase (as opposed to the concept) “new

and distinct relation.’’?

3. Failure to Consider for New Positions

Plaintiffs Von Zuckerstein, Ramaswami, Jain, and Chang

all allege that Argonne laid them off and then failed to

consider them for new positions for which they claim they

were eligible. Although discriminatory discharge is not ac-

tionable in this Circuit under section 1981, see McKnight,

908 F.2d at 108-09, and therefore plaintiff’s allegations

that they were laid off must be dismissed for section 1981

purposes,® we find the failure-to-rehire allegations to state

7 Two recent decisions seem to have taken a more formalistic ap-

proach to the pleading requirements under Patterson. In Majeske

v. Chicago, 740 F.Supp. 1350 (N.D.Ill. 1990) and Chicago Fire

Fighters Union Local No. 2 v. Chicago, No. 88 C 3773, 1990 WL

70515 (N.D.Ill. May 8, 1990), failure-to-promote claims were dis-

missed where the plaintiffs failed to allege that the higher posi-

tions represented “new and distinct relations.’”’ Each of those

cases, however, stressed the plaintiffs’ failure to allege any facts

from which it could be concluded that the promotion was an op-

portunity for a new and distinct relation; by contrast, the plain-

tiffs in this case have explicitly alleged the denial of promotions

to supervisory and management positions. To the extent our

holding in this case undercuts the Majeske and Chicago Fire

Fighters decisions, we respectfully decline to follow them, par-

ticularly because it would be manifestly unfair to require plain-

tiffs who filed their complaint before Patterson to have predicted

the precise language that the Supreme Court would use, and dis-

missal with leave to amend at this juncture, with trial right around

the corner, would serve no purpose.

8 Plaintiffs’ claims of removal from grant projects similarly must

be dismissed because they assert either discriminatory discharge,

which McKnight holds to be nonactionable, or discriminatory demo-

tion, which also cannot support a § 1981 claim. See infra at 1316.

App. 28

valid section 1981 claims. The term “laid off’’ is suscep-

tible of two interpretations. First, as a term of art, “‘laid

off’ suggests a temporary removal of an employee from

work, which is followed by an organized recall procedure.

By contrast, “‘laid off’ may also be used as a euphemism

for “fired.’’ Under the former construction, an employee

retains certain rights, and if, for example, the recall of

employees is conducted contrary to established procedure,

an injured employee may sue. See McKnight, 908 F.2d

at 109-10. The employment relationship, therefore, is not

necessarily severed, and the rehiring will only trigger sec-

tion 1981 protection if the new position rises to the level

of a new and distinct relation. Jd. If the lay-off reflects

a more permanent termination, however, a rehiring repre-

sents the formation of a new contract within the mean-

ing of section 1981. Construing the allegations in the light

most favorable to the plaintiffs, we find the failure-to-

rehire allegations sufficiently to assert discrimination with

respect to opportunities to enter into new contracts with

Argonne; indeed, Argonne itself concedes that “‘plaintiffs

had no recall rights’’ (Defendant’s Memorandum at 16

n. 8).

4. Inscriminatory Demotion or

Discrimination upon Hiring

In general terms in paragraph {a) and specifically with

reference to plaintiff Jain in paragraph 10(c), plaintiffs as-

sert the discriminatory placement of immigrants in lower-

paying professional positions than their “credentials dic-

tate[ |.” These allegations can be construed either as

claims of discriminatory post-hiring demotion or as charges

of discrimination at the initial hiring stage. We agree with

Judge Aspen’s decision in Bush v. Commonwealth Edison

Co., 732 F.Supp. 895 (N.D.IIl. 1990), that allegations of

App. 29

demotion relate to post-formation conduct and as such are

not actionable under section 1981. Although demotions are

in some ways similar to promotions—and significant demo-

tions may lead to “new and distinct relations” between

the employer-demoter and the employee-demotee—those

similarities are not significant for section 1981 purposes.

But see Kriegel v. Home Insurance Co., 739 F.Supp. 1538,

1540 (N.D.Ga. 1990) (‘{I]t follows [from the fact that dis-

criminatory promotion remains actionable] that demotion

claims remain actionable if the change in position results

in ‘a new and distinct relation.’ ”). The discrimination in

demotion cases does not occur in the formation of the new

relationship; rather, it lies in the termination of the old.

The analogy to discharge cases, then, is more persuasive,

and McKnight establishes unambiguously that discrimina-

tory discharge is strictly post-formation, nonactionable

conduct.

To the extent that these allegations purport to state

a claim of discrimination in the formation of the original

contracts of employment, they would clearly be cognizable

under section 1981. Argonne contends in a footnote (and

fails to develop elsewhere) that any claims of discrimina-

tion at the formation of the plaintiffs’ contracts are time-

barred by the statute of limitations for section 1981 claims

that was in effect in Illinois at the time plaintiffs filed

this action. Plaintiffs have not responded to this argument,

however, and because the issue was raised only in a foot-

note, we do not consider it sufficiently presented for deci-

sion. See United States v. Bentley, 825 F.2d 1104, 1109

(7th Cir.), cert. denied, 484 U.S. 901, 108 S.Ct. 240, 98

L.Ed.2d 198 (1987). If the allegations refer to discrimina-

tion in the formation of the contracts rather than discrim-

inatory demotion, then, they remain valid under section

1981.

App. 30

5. Iscrimination in the Enforcement

of Contractual Rights

In addition to protecting the right to enter into con-

tracts without discrimination, section 1981 guarantees “the

same right... to... enforce contracts ... as is en-

joyed by white citizens.” Plaintiffs Jain, Ramaswami, Von

Zuckerstein, and Chang allege two types of discrimina-

tion in the enforcement of contracts: first, they argue that

Count II’s assertions of Argonne’s retaliation against

plaintiffs for “‘filling] charges and/or otherwise ma{king]

their intention to proceed under the relevant civil rights

acts known to the defendant” validly states a section 1981

claim; and second, they contend that Argonne’s alleged

denial to Von Zuckerstein of access to its internal griev-

ance procedure ({ 10(a)) is cognizable under section 1981.

Although the plaintiff in Patterson did not allege any

discrimination in the enforcement of her contract with

McLean Credit Union, the Court nevertheless explained

in general terms the scope of that second guarantee of

section 1981. The right to be free from discrimination in

the enforcement of contracts, the Court expounded,

embraces protection of a legal process, and of a right

of access to legal process, that will address and

resolve contract-law claims without regard to race.

In this respect, it prohibits discrimination that infects

the legal process in ways that prevent one from en-

forcing contract rights, by reason of his or her race,

and this is so whether this discrimination is attrib-

uted to a statute or simply to existing practices. It

also covers wholly private efforts to impede access

to the courts or obstruct nonjudicial methods of ad-

judicating disputes about the force of binding obliga-

tions, as well as discrimination by private entities,

such as labor unions, in enforcing the terms of a con-

tract. Following this principle and consistent with our

App. 31

holding in Runyon that § 1981 applies to private con-

duct, we have held that certain private entities, such

as labor unions, which bear explicit responsibilities

to process grievances, press claims, and represent

member [sic] in disputes over the terms of binding

obligations that run from the employer to the em-

ployee, are subject to liability under § 1981 for racial

discrimination in the enforcement of labor contracts.

See Goodman v. Lukens Steel Co., 482 U.S. 656, 107

S.Ct. 2617, 96 L.Ed.2d 572 (1987). The right to en-

force contracts does not, however, extend beyond con-

duct by an employer which impairs an employee’s

ability to enforce through legal process his or her

established contract rights.

109 S.Ct. at 2373 (emphasis in original). Discussing the

protection afforded by section 1981 with respect to claims

of retaliation, the Seventh Circuit in McKnight observed

that “(rjetaliation or a threat to retaliate is a common

method of deterrence, and if what is sought to be deterred

is the enforcement of a contractual right, then, we may

assume, the retaliation or threat is actionable under sec-

tion 1981 as interpreted in Patterson, provided that the

retaliation had a racial motivation.”® 908 F.2d at 111. Be-

cause the conduct that prompted the alleged retaliation

in McKnight was an attempt to enforce the plaintiff's

rights under anti-discrimination laws, the Seventh Circuit

found the claim to fall outside the aegis of section 1981;

the court reasoned that statutory anti-discrimination laws

“such as Title VII and section 1981 and their state equiva-

lents” are not contractual obligations but rather ‘“‘a species

® The McKnight court refused to state with certainty that such

a scenario would be actionable under § 1981, however, “out of

deference to the [Supreme] Court’s strongly expressed preference

in Patterson for interpreting section 1981 to avoid overlaps with

Title VII.” McKnight, 908 F.2d at 112.

App. 32

of tort right.”’ Jd. at 112; see also Sherman v. Burke Con-

tracting, Inc., 891 F.2d 1527, 1535 (11th Cir.), cert. denied,

___.:~;U.S. __, 111 S.Ct. 358, 112 L.Ed.2d 317 (1990).

From plaintiffs’ complaint, it appears that they too are

alleging nonactionable retaliation by Argonne for prose-

cuting or attempting to prosecute their statutory rights

under civil rights acts. In paragraph 15, which sets forth

the conduct that allegedly precipitated the retaliation,

plaintiffs aver that after they were discriminated against,

“they filed charges and/or otherwise made their intention

to proceed under the relevant civil rights acts known to

the defendant.” (Emphasis added). Plaintiffs proceed, in

paragraph 16, to describe the manifestations of this retali-

ation; they allege several specific types of retaliation, in-

cluding denial of access to internal administrative pro-

cedures such as Argonne’s grievance procedure, and then

generally allege that Argonne “otherwise [sought] to im-

pede these plaintiffs’ exercise of their statutory rights.”

(Emphasis added).

Plaintiffs attempt, in their memorandum, to salvage

their retaliation claim by asserting the existence of an

Argonne Policy and Procedures Manual, which they claim

sets forth the rights of employees and which explicitly

establishes the right to be free from discrimination in the

workplace and in employment and the right to present

discrimination claims at an internal grievance procedure.

Plaintiffs’ Equal Employment Opportunity Commission

(“EEOC”) charges, they continue, were filed “in part{ ]

to enforce these specific contract rights’ (Plaintiffs’ Re-

sponse at 13). Even assuming that these provisions rise

to the level of contract, See Duldulao v. St. Mary of

Nazareth Hospital Center, 115 Ill.2d 482, 490, 106 Ill.Dec.

8, 12, 505 N.E.2d 314, 318 (1987), plaintiffs’ argument does

not bring their claim within the parameters of section

App. 33

1981. The EEOC is charged with enforcing Title VII of

the Civil Rights Act of 1964 and does not entertain or

adjudicate private contract disputes. If Argonne had re-

taliated against plaintiffs for filing a state law breach of

contract suit predicated on the provisions in the Argonne

Manual or for alleging a pendent state claim of contract

breach in the instant action, they might have a claim, but

those scenarios are counterfactual.

That leaves the internal grievance procedure. Citing

McKnight, which expressly noted the absence of an anti-

discrimination term in the contract between the plaintiff

and his employer in that case, plaintiffs argue that they

“have properly alleged that Argonne prevented and/or dis-

couraged the plaintiffs from using the available legal proc-

ess to enforce the specific anti-discrimination contract

right” (Plaintiffs’ Response at 13). Plaintiffs’ confident as-

sertion that the retaliation argument is “‘properly alleged’’

does not persuade us, for it is indeed a stretch to infer

this claim from the complaint. But we believe that an in-

ternal grievance procedure can rise to the level of a “non-

judicial method of adjudicating disputes” as contemplated

by Patterson, sce Hayes v. Community General Osteo-

pathic Hospital, 730 F.Supp. 1333, 13837 (M.D.Pa. 1990),

and plaintiffs’ complaint, read in conjunction with their

memorandum, presents the kernel of a cognizable claim.

Because our refusal to dismiss other parts of plaintiffs’

section 1981 claim entitles plaintiffs to a jury, and because

we write without the guidance of the parties’ final pre-

trial order, we decline to dismiss this claim. We advise

the plaintiffs, however, that any lenience we exhibit now

will not be echoed at trial, where plaintiffs will have to

establish inter alia that the Argonne manual creates valid

contractual rights and obligations, that the internal griev-

ance procedure is a nonjudicial mechanism for resolving

App. 34

contract disputes, and that Argonne’s specifically retali-

ated against them for pursuing (or intending to pursue)

their contract claims in the internal grievance forum.

With respect to plaintiffs’ second argument, that Argonne

violated section 1981 when it denied Von Zuckerstein ac-

cess to its grievance procedure, plaintiffs analogize their

situation to cases where labor union refused to process

grievances under a collective bargaining agreement. Pat-

terson, citing Goodman v. Lukens Steel Co., 482 U.S. 656,

107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), observed that labor

unions have been held liable under section 1981 for that

sort of discrimination, but only when the grievance that

the union refused to process relates to the terms of the

collective bargaining contract. See Patterson, 109 S.Ct. at

2373; Goodman, 482 U.S. at 666, 107 S.Ct. at 2623 (“the

collective-bargaining contract contained an express clause

binding both the employer and the Unions not to discrimi-

nate on racial grounds”). Without the added dimension

of a contract dispute at the core of the internal griev-

ance procedure, Argonne’s denial of access is nothing more

than a violation of a term of its contractual agreement

with plaintiffs, which is not actionable under section 1981.

See Hall v. County of Cook, 719 F.Supp. 721, 724-25

(N.D.IIl. 1989). Argonne would be exposed to section 1981

liability for the denial of access to this forum only if plain-

tiffs sought there to redress the alleged breach of the

manual’s anti-discrimination provision. This allegation is

not laid out in the complaint, but again, it can be inferred

from plaintiffs’ memorandum, and we think it best to sort

this issue out at trial. To succeed on this claim, plaintiffs

will have to “stablish at that time thai they sought to

use the internal grievance procedure to vindicate their

contractual right to be free from discrimination.

App. 35

II. Summary Judgment Against Plaintiff Poling Chang

In a separate motion filed only against Poling Chang,

Argonne asserts that judgment in its favor is warranted

as a matter of law in light of Poling Chang’s concession

that she cannot produce any evidence to support her al-

legations. Poling Chang is pursuing the discrimination

claim on behalf of her husband Han Chang, who died sub-

sequent to filing this suit. In essence, Argonne is argu-

ing that Poling Chang admitted through deposition testi-

mony and responses to interrogatories that she has no

knowledge of any facts that would support the allegations

pertaining to Han Chang in the complaint. Although Poling

Chang was able to identify several individuals who she

claimed have knowledge of relevant facts, Argonne con-

tinues, she herself could not identify any of those facts

known to others.

Argonne’s assumption that Poling Chang must be able

independently to prove her allegations and must memorize

and be able to recite the anticipated testimony of her wit-

nesses is not only incorrect but also close to preposterous.

A plaintiff need not personally have knowledge of all of

the elements of his case; a passenger injured in a train

accident, for example, may successfully sue the train com-

pany for negligence even though he has no personal know1-

edge of how the company’s employees conducted them-

selves during the relevant period. For such purposes

witnesses exist. Federal Rule of Civil Procedure 56 is a

mechanism for ferreting out weak claims by determining

through proxies whether sufficient evidence exists to per-

mit a rational jury to find for the nonmoving party. Spec-

ulation on the part of the plaintiff about what his wit-

nesses know is perhaps the most unreliable of all possi-

ble proxies; the filter of the plaintiff's understanding and

memory can only obscure the truth and cast doubt upon

App. 36

the accuracy of the evidence, which, through the mouth

of the piaintiff, would likely be hearsay anyway. There

certainly is no requirement, contrary to Argonne’s sug-

gestion, that a nonmovant is limited to this method of

proof in contesting a motion for summary judgment.

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986), on which Argonne relies in part,

does not in any way support Argonne’s contention. The

plaintiff in that case, pursuing, as administratrix of her

husband’s estate, a wrongful-death action against Celotex

Corporation, apparently did not have personal knowledge

that would connect her husband’s injuries to any Celotex

product. In response to Celotex’s motion for summary

judgment, however, she produced three documents that

she claimed established the existence of a genuine ma-

terial factual dispute: a transcript of her husband’s depo-

sition, a letter from an official of a former employer of

her husband, and a letter from an insurance company.

Celotex argued successfully at the district court level that

it was entitled to summary judgment not because plaintiff-

administratrix did not have personal knowledge of facts

that would support her claim but rather because the only

evidence that she did proffer was not admissible. The

court of appeals and the Supreme Court, however, limited

their consideration to the issue of whether a party mov-

ing for summary judgment must come forward with proof

of the absence of any genuine issues of material fact

before the nonmoving party is required to respond. Con-

cluding that summary judgment is appropriate whenever

the nonmoving party fails to make a sufficient showing

on an essential element of his case with respect to which

he has the burden of proof regardiess of whether the mov-

ing party supports its motion with evidence negating the

nonmovant’s claim, the Court explicitly declined to eval-

uate the substance of: Celotex’s motion, observing that

App. 37

“the Court of Appeals with its superior knowledge of local

law is better suited than we are to make these determina-

tions in the first instance.” 477 U.S. at 327, 106 S.Ct. at

2555. On remand, the D.C. Circuit denied a renewed mo-

tion for summary judgment. Catrett v. Johns-Manville

Sales Corp., 826 F.2d 33 (D.C.Cir. 1987), cert. denied, 484

U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). To the

extent that “the summary judgment principles set forth

in Celotex are applicable to this case” (Defendant’s Reply

at 10), then, Argonne is conceding defeat.

Poling Chang is clearly entitled to go beyond her own

depositions and answers to interrogatories to establish a

genuine issue of material fact,!° and in her response to

Argonne’s motion, she offers four pieces of additional evi-

dence: affidavits of her husband Han Chang and Von Zuck-

erstein; Han Chang’s answers to interrogatories; and Han

Chang’s charge of discrimination filed with the EEOC.

In its reply memorandum,!! Argonne challenges the ad-

10 That Poling Chang may have “admitted” the contents of Ar-

gonne’s 12(m) statement by failing to provide a 12(n) submission

does not undermine her efforts to defeat Argonne’s motion. The

12(m) statement consists of nothing more than Poling Chang’s an-

swers to Argonne’s interrogatories and neither establishes the

absence of a genuine issue of material fact nor provides Poling

Chang with any assertions that she can controvert.

11 Argonne’s original motion and memorandum seeks to demon-

strate the absence of a genuine issue of material fact by refer-

ence to Poling Chang’s answers to interrogatories and deposition

alone. Because of this limited focus, Poling Chang contends that

Argonne failed to identify those portions of the record that

demonstrate the absence of a genuine issue of material fact and

that therefore it cannot prevail regardless of the quantum of evi-

dence that Poling Chang is able to produce in defense of her

claims; the additional evidence is merely offered in support of an

alternative ment. It is quite likely that the foregoing discus-

sion of the deficiencies of Argonne’s position conclusively resolves

the motion, for Celotex clearly places on the moving party

(Footnote continued on following page)

App. 38

missibility of this evidence, arguing first that the affidavits

contradict Poling Chang’s own interrogatory answers and

deposition testimony and must be disregarded under

Miller v. A.H. Robins Co., 766 F.2d 1102 (7th Cir. 1985).

While we agree with Argonne that in most cases “{plar-

ties cannot thwart the purpose of Rule 56 by creating

issues of fact through affidavits that contradict their own

depositions,” Miller, 766 F.2d at 1104, neither Han

Chang’s nor Von Zuckerstein’s affidavit contradicts Poling

Chang’s deposition testimony. Poling Chang does not admit

in her deposition a complete lack of proof regarding her

claim; she merely disclaimed personal knowledge of the

details of the case (see, e.g., Poling Chang Dep. at 35, 59).

Von Zuckerstein’s and Han Chang’s affidavits do not

assert to the contrary that Poling Chang has personal

knowledge of relevant facts but rather supplement her

deposition testimony. Indeed, the only statement that

these affidavits contradict is Argonne’s assertion that

“{Poling] Chang is unable to produce any evidence to sup-

11 continued

the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of “the

pleadings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any,” which it be-

— demonstrate the absence of a genuine issue of material

act.

477 U.S. at 323, 106 S.Ct. at 2553. Argonne’s 12(m) statement,

moreover, speaks only to Poling Chang's inability personally to

prove her allegations. But Argonne does assert in rather sweep-

ing language that “[{Poling] Chang can not [sic] produce any evi-

dence to support any of the allegations set forth in her third

amended complaint” (Defendant’s Memorandum at 1-2), arguably

broadening the scope of its motion. Because the parties discuss

(Poling Chang in her response and Argonne in its reply) the suf-

ficiency of Poling Chang’s additional evidence, and because the

issue is so easily resolved in Poling Chang’s favor, we continue

with our analysis.

App. 39

port the allegations contained in the third amended com-

plaint’’ (Defendant’s Memorandum at 1).

Argonne next attacks the admissibility of Han Chang’s

interrogatory answers, affidavit, and charge of discrimina-

tion, contending that they are hearsay. Argonne merely

asserts that these submissions constitute inadmissible

hearsay, failing to point to specific offending passages and

to support or document its sweeping allegation of hear-

say in any way. And it is not obvious to this court that

the facts set forth in these submissions! are hearsay; Han

Chang’s answer to interrogatory number 4, for example,

sets forth the details of two instances of alleged discrimi-

natory removal and includes such assertions as “{ijn 1980,

plaintiff Dr. Change [sic] was in charge of the develop-

ment of a report entitled, ‘Environmental Implications of

Accelerated Gasahol Production,’ and was the report’s

principal contributor.”

Despite the patent deficiencies of Argonne’s argument,

we cannot consider Han Chang’s evidence for the purpose

of this motion because Han Chang is no longer available

to testify at trial. The purpose of a summary judgment

motion is to determine whether enough evidence will like-

ly be presented at trial so that a jury could find for the

non-moving party. Written substitutes for oral testimony

are accepted as indicators of what the jury will hear.

12 The cases cited by Argonne in support of its assertion that

hearsay statements should not be considered on motion for sum-

mary judgment speak to the content of the submissions rather than

to their form. See Randle v. LaSalle Telecommunications, Inc.,

876 F.2d 563, 570 n. 4 (7th Cir. 1989) (‘Rule 56(c) requires that

supporting evidentiary affidavits ‘shall set forth facts as would be

admissible in evidence.’. . . [Ojur cases have stessed that we are

unable to consider hearsay statements that are not otherwise ad-

missible at trial.’’).

App. 40

Where an affiant or interrogatory answerer will clearly

not be able to repeat the statements in his affidavit or

the answers to the interrogatories at trial, that evidence

no longer previews testimony that the jury will hear and

therefore will not affect in any way what the jury could

conclude.

That leaves us with the Von Zuckerstein affidavit. Claim-

ing that this submission, too, must be ignored by the

court, Argonne argues that “it is a hodge podge of con-

clusions unsupported by any foundation or even any asser-

tion by the affiant that he has personal knowledge of the

matters discussed . . . [and] also contains rank hearsay”’

(Defendant’s Reply at 5). Argonne illustrates this criticism

with three specific examples ({{ 3, 9, and 11) and proceeds

to condemn “{ajJll of the remaining paragraphs” as ‘“‘suf-

fer{ing] from similar deficiencies” (Defendant’s Reply at

6). To the extent that we consider Argonne’s loosely struc-

tured argument to constitute a motion to strike Von Zuck-

erstein’s affidavit, see 10A C. Wright, A. Miller & A.

Kane, Federal Practice and Procedure § 2738, at 507 (2d

ed. 1983), it does not, beyond the three noted examples,

state with sufficient specificity what should be stricken

and why. See 6 J. Moore, W. Taggart & J. Wicker Moore’s

Federal Practice 456.22[1], at 56-764 (2d ed. 1985).

Moreover, although we agree that statements in affidavits

that are nothing more than broad conclusions, see Corin-

thian Pharmaceutical v. Lederle Laboratories, 724 F.Supp.

605, 609 (S.D.Ind. 1989), or that smack of hearsay should

be disregarded, much of Von Zuckerstein’s affidavit does

not fall into either of those categories.

Specifically, paragraphs 7 and 8, in which Von Zucker-

stein asserts that Han Chang was removed, by his super-

visor, from a position that company policy reserved to him

and was replaced by a less-qualified native-born employee

ee

App. 41

and that this supervisor repeatedly made disparaging re-

marks about foreign- and in particular Chinese-born em-

ployees, contain statements that are admissibie and suf-

ficient to establish a prima facie case of discrimination

under the indirect method of proof. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 & n. 13, 93 S.

Ct. 1817, 1824 & n. 13, 36 L.Ed.2d 668 (1973); Morgan

v. Harris Trust and Savings Bank, 867 F.2d 1023, 1026-27

(7th Cir. 1989). We note that the evidence submitted by

Poling Chang is not overwhelming and perhaps represents

only a portion of the case she will present at trial (Von

Zuckerstein adverts in his affidavit, for example, to a

28-day deposition). Poling Chang goes well beyond mere-

ly identifying the witnesses that she will call at trial,

however, and Argonne’s motion does not realistically

merit much more of a response.

CONCLUSION

For the foregoing reasons, Argonne’s motion for sum-

mary judgment against Poling Chang is denied. Argonne’s

motion to dismiss plaintiffs’ section 1981 claims is granted

with respect to the allegations of harassment, denial of

pay raises and comparable compensation, improper use of

grant monies, denial of access and exposure, discharge

(including removal from grant projects), and demotion;

with respect to all remaining allegations, the motion is

denied.

en

App. 42

(2653]* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 86 C §304—Chicago, Illinois—April 24, 1991, 3 p.m.

IVAN VON ZUCKERSTEIN, et al., ina

: Plaintiffs,

VS.

ARGONNE NATIONAL LABORATORY, -

Defendant.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE JAMES B. MORAN

and a jury

APPEARANCES:

For the Plaintiffs: MR. JOHN L. GUBBINS

MR. MARK LE FEVOUR

For the Defendant: MR. R. CLAY BENNETT

MR. DONALD J. MC NEIL

MR. MICHAEL J. MUELLER

MR. BRIAN J. FAHEY

K. JOSEPH SNYDER, RPR, CM

Official Reporter

219 S. Dearborn Street, Room 2524-A

Chicago, Illinois 60604

(312) 939-2059

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 43

[2654] (Proceedings in chambers.)

MR. LE FEVOUR: Hello, Your Honor.

MR. BENNETT: Good afternoon, Your Honor.

THE COURT: Hello.

MR. LE FEVOUR: Your Honor, we cited a case. I don’t

know if you want a copy of this. That’s one that we rely

on in the motion. We think it is an interesting case. It

is cited in our brief.

THE COURT: Okay. Well, I think we should send the

jury home. There is a big difference between ethnicity

and national origin. Ethnicity presupposes someone from

an identifiable class of people, regardless of matters such

as dress, speech, accent, citizenship. It presupposes a

group where somebody is saying: We don’t want to deal

one way or another with that entire group of people—

without regard to whether they are immigrants or non-

immigrants, purely on the basis of being an ethnic deriva-

tion or of a particular race, however your characterize

that. Certainly in the cases, it goes all over the lot.

Whether we are talking black, Asian, Indian, Pakistani,

Iraqi, it really doesn’t make much difference for our pur-

poses as to how you characterize it.

The entire thrust of the plaintiffs’ complaints to Ar-

gonne were really not race or ethnicity but being foreign-

born and immigrants. Just looking at the evidence that

has been presented, number one, just taking the easiest

one first, Mr. [2655] Vresk, there is just nothing to sug-

gest, other than the fact that he did not have the career

path that he wished to have, that somebody out there

at Argonne had it in for him because he was Croatian.

With Mr. Von Zuckerstein, we end up pretty much with

the change of position from being Central European Jewish

to, aside from being Jewish, being German primarily be-

cause Meshenberg said, in effect: I didn’t even know he

was Jewish because of his name, he had a “Von”’ in front

App. 44

of his name. Suddenly it became German discrimination,

again, without any evidence of any systemic discrimina-

tion against Germans out at Argonne or, for that matter,

Central European Jewish.

With respect to more traditional claims, and certainly

Dr. Chang, Jain and Ramaswami fit more comfortably

within those traditional claims, again, just looking at the

people who were employed out there as scientists and

engineers, that if they had any claim, it was not just be-

cause they were Chinese or Indian but because they were

immigrants with accents that came from foreign countries

and the like.

Even if we got past that hurdle, when we get into the

area of what is a significant change in contractual rela-

tionship, I must say I am certainly not prepared to say

today whether I think that a change from assistant to

full satisfies Patterson or a change from full to senior.

I am also not prepared to say it doesn’t. It’s marginal.

[2656] If you are an assistant, you are, on the basis of

the evidence presented, on a continuing probationary

status in a sense, since it’s five years up or out. There-

fore, going to full status does give you a great deal more

security, but not like security at a university where you

have tenure, because it is so dependent on funding.

I think the evidence made it very clear that people,

given the nature of the disciplines needed at Argonne and

the changing nature of government funding and govern-

ment focus, that very competent people could end up be-

ing a square peg in a round hole, because the things that

they were very good at were no longer the things that

the laboratory needed. I can’t remember who it was, I

think it was either Dr. Jain or Dr. Ramaswami who agreed

that was so.

There was a vulnerability, certainly a much greater vul-

nerability than in a university setting where, once you

a

App. 45

have tenure, unless the university collapses around your

ears, that you are going to be there for as long as you

want to be there so long as you perform to a level of

minimal competency.

Going up to senior, is that within Patterson? Again, I

don’t know one way or the other. I think the evidence

established that it usually resulted in some increase in

pay, and it certainly was a major step up in prestige.

At the same time, the changes from assistant to full

to senior didn’t necessarily correlate to changes in super-

visory [2657] authority. Indeed, people who may not even

be, technically, nearly as good as some other people may

end up with major supervisory roles because that’s what

they are good at. And people who are, technically, abso-

lutely superb may end up with very minimal responsibil-

ities in supervision and management, one, because that

is not something that they are good at, or, two, just be-

cause it is not something that they are the least bit in-

terested in; they are far more interested in the research.

This is, I must say, rather disjointed, and will continue

to be.

To the extent that Dr. Ramaswami is claiiaing that a

failure to become a senior is a denial of a new and distinct

relationship within the confines of Patterson, then is that

barred by the statute of limitations? No, I don’t think

so. It is not a status that one need even apply for. It

is a status that could occur at any time. It could have

occurred right up until the day he left. The fact that he

may have indicated a wish to become a senior earlier and

even have been recommended by one person for that pro-

motion doesn’t forever chill that claim for limitations pur-

poses. It’s just the opportunity to be selected for that

status is there as long as he is there.

Which gets us, really, to the Title 7 claims, which are

in an entirely different posture, because the real ques-

App. 46

tion at this point is, at the end of the plaintiffs’ case, do

I believe that they have satisfied their burden in terms

of proving, in [2658] the absence of contrary evidence in-

troduced by the defense, the claim that they are making?

As to that, a lot of it, I think, they haven’t proved. There

are certain areas that I feel uncomfortable about, and I

would like to hear more about.

Let me give you sort of an overall perspective on this.

We get into habits of thought under the McDonnell-Douglas

burden-shifting or production-shifting focuses that can end

up being somewhat mechanistic in their application if you

don’t watch it, but the ultimate factual determination that

has to be made is, given everything, has a plaintiff estab-

lished by a preponderance of the evidence that discrimina-

tion was a contributing cause to the employment change

that took place or didn’t take place in some circumstances.

All the way through this, and Lord knows we have now

been at it for three weeks, I have sat there and listened

to what was going on and attempted to segregate it into

an analysis of what actually happened out at Argonne.

It certainly hasn’t fallen into what is a normal litigation

of a discrimination claim. There are some claims that are

going to rest pretty much on the smoking gun kind of evi-

dence. There are other claims based on: Well, others weren’t

treated that way that were not in a protected class. There

was a disparity of treatment. Third is a statistical ap-

proach. Well, nobody has tried to do a statistical approach

and, obviously, it was impossible to do that because the

kinds of samples we are talking about are so [2659] small.

Plaintiffs have pointed to possible smoking guns, but

they are very minor. A comment by Sather to Chang

about “We don’t want too many Chinese types” or some-

thing to that effect, I think that was who said what to

whom by the testimony.

App. 47

MR. MCNEIL: Sather to Chopra.

THE COURT: To Chopra.

MR. MCNEIL: To Chopra.

THE COURT: It’s one we don’t even know exactly—

well, if it was said, we are not even sure what was meant

by that. In an organization where a substantial proportion

of the scientific and engineering personnel are of foreign

birth, and we have various people, many of whom are of

foreign birth who have the responsibilities or significant

responsibilities for selecting their staff, it is as easily a

comment on don’t discriminate yourself in doing something

as it is anything else.

You have Eustis or Herbaty, or whatever his name is,

one or the other from DOE who supposedly said that he

didn’t want Indians heading up projects. But that wasn’t

even from anybody—if it happened, and certainly it is

strenuously denied, the most that can be said to have

resulted from it is a cosmetic change in who was listed

as a PI temporarily in one project without any impact,

real impact on responsibilities, pay or anything else.

Then we have one that Mr. Von Zuckerstein testified

to [2660] with regard to Bernard, and that one, I leave

to later.

The main problem I have got with all this is that the

decision-making process out at Argonne is extremely dif-

fused. You have a group at the time of a reduction in

funding which selects those positions which must be elimi-

nated because of reduced funding. That group in 1983-1984

selected certain positions. I don’t recall even that the evi-

dence +18 particularly specific on who was in that group.

It, obviously, came out of the operating divisions in mak-

ing those decisions.

Was funding itself kind of a moving target? Obviously,

it was.

App. 48

Were there significant reductions resulting from changes

in focws? I think the evidence clearly indicated that, yes,

there were.

Within those changing foci, were there temporary shifts

from one thing to another as somebody said ‘We need

to finish this out in a more constructive manner,” or,

“Before we end this I think we ought to at least do that”

so that there were continual changes to some extent in

what the funding patterns were, I think the evidence es-

tablished that, yes, that was so.

But there certainly isn’t any evidence that the initial

RIF decisions as to which positions to eliminate were

made other than in good faith or that discriminatory rea-

sons played any role in determining what positions those

should be.

Then we have a group deciding: Well, if those [2661]

positions are being eliminated, who leaves, who is going

to be laid off? There isn’t any question that in making

that determination that incumbency was a significant fac-

tor. And if someone who was in a position that was being

terminated was measured as a candidate against someone

who was an incumbent that, other things being equal, the

incumbent was going to win. I don’t think that was par-

ticularly specified as a rule of thumb, but in looking at

the evidence, it certainly came through that that was of

considerable significance.

As I recall, the only one of the five, and here, actually

four, because we are not talking about Vresk, who was

being measured against, in a different context, it was Mr.

Von Zuckerstein, since it was a number of the people that

were in his classification who were being RIF’d.

Then we have got what the people in those committees

were relying on. To a certain extent, they were relying

upon past evaluations. Again, we are not talking about

any one pei. 1 being evaluated all the way through by

App. 49

a single person without input from anybody else. We are

talking about evaluations that were signed by various peo-

ple in differing years and with differing inputs and, I will

say, with a fairly high correlation from year to year with

respect to evaluations. Then those evaluations played a

role in what a committee decides with respect to who is

going to be laid off. Again, does the evidence establish

that that fairly ponderous process was not [2662] under-

taken in good faith, and that discriminatory reasons played

a role in the choices? It didn’t indicate that to me.

We had to a certain extent what seemed to me kind

of a red herring regarding citizenship. There, we are talk-

ing in such a complicated area where, in the first place,

if you are over here on a study visa just being used for

anything, an exchange visitor visa, for example, just be-

ing used for anything requires satisfaction of a host of

government regulations, most of which are almost impossi-

ble to satisfy. Argonne, given its funding and given the

nature of its work, is subject to whatever governmental

regulations there are on security, on classification, on citi-

zenship preferences and the like.

Something that did come through in the evidence was

the nature of the plaintiffs. I don’t doubt for a moment

that the plaintiffs, particularly perhaps Mr. Von Zucker-

stein, feel deeply that their evaluations and the effect on

their career out at Argonne were both blighted by dis-

crimination based on national origin.

I think here we have to consider a little bit about the

context in which this whole thing arises. We are talking

about intelligent, skilled, proud people with lots of talent,

a good deal of creativity, considerable egos, which I think

goes with the rest of it, who are very competitive where,

unlike somebody running the hundred yard dash, your

identity is to a certain extent defined by the regard of

your peers, and this is a [2663] society, a rather closed

App. 50

society but with a lot of contacts with the scientific and

engineering community nationally and internationally, where

those peers are very similar. It is a somewhat rarefied

atmosphere where everybody is good, and some are better

than others.

If there is an evaluation, which may or may not be un-

fair, and I make no judgment at all as to the fairness of

the many evaluations that have been introduced into evi-

dence in this case, but to the extent they are less than

laudatory, there is a natural tendency for people to say

it has to be that there is an improper animus at work

somehow, because otherwise it wouldn’t have turned out

this way; I am better than that. Certainly I think Mr.

Von Zuckerstein leaped at that and strongly believes that,

but I just don’t see it in the evidence.

Let me run through, very briefly, and this is very sim-

plistically, because there was an awful lot of other stuff

that was introduced, but let me just characterize the plain-

tiffs as I saw them from the evidence. They are different.

The most solid performers were Dr. Ramaswami and Dr.

Chang. We don’t know much about Dr. Chang. He got

passed over on a project management basis at one point

and then was the subject of the RIF.

We know, obviously, a lot more about Dr. Ramaswami

because he was here and testified at considerable length,

and there isn’t any question that he was a solid per-

former; that he, [2664] on the basis of what was presented,

did not do as well as his capabilities indicated that he

could do but certainly was a well regarded scientist. If

it hadn’t been for the mini-disaster in the summer of 1985,

I would rather expect that Dr. Ramaswami would still

be there.

Here, it is a little hard to disregard what Dr. Schertz

had to say, but I do because we are talking about the

evidence at the end of plaintiffs’ case, although I will say

App. 51

that it was consistent with my view of the evidence at

the end of the plaintiffs’ case, and that is that to the ex-

tent that the position was being taken that there just

wasn’t anything possibly that he could do in EES after

he got back from India, that there just wasn’t room for

him anymore, I had serious reservations about that.

The letter from Dr. Ramaswami on July 138, 1985, cer-

tainly, is contrary to his testimony as to what was talked

about the previous day. We have the evidence in the rec-

ord prior to the close of plaintiffs’ case from the point

of view of the laboratory as to what happened. I think

that is, to an extent, what happened, although, as I say,

I have serious reservations that what happened later was

due to an absolute loss of available work in EES.

But what was, it seemed to me, pretty clear from the

memorandum, and, I must say, supported by Dr. Schertz’s

testimony after the close of plaintiffs’ case, is that he

[2665] thought he put himself on the line for Dr. Rama-

swami and felt like he had been betrayed to an extent

when he didn’t show up to carry through. At that point

he, in effect, said: I’m not going to go out of my way

to do anything further for him. I did my best, and he

didn’t appreciate it, and forget it—which is not a discrimi-

natory reason for acting, certainly not anything that’s a

violation of federal law.

Mohan Jain, good technically, who had certainly run into

problems in his biggest venture in supervision, was on

the edge certainly with respect to the five-year-up-or-out

rule.

Mr. Von Zuckerstein, on that same edge, obviously,

good with groups. Those who saw him in action in carry-

ing out those functions thought he did a really good job

and were major supporters.

But the record is also clear that, whether warranted

or not, what the laboratory wanted and kept telling him

App. 52

that he had to have, and he wasn’t giving them, which

was publications, which I understood to be, to a certain

extent, the life blood of the laboratory because of the need

to have something in hand to justify funding and going

on with the project: This is what we have done, and this

is what we have accomplished.

Mr. Vresk was really in a very different situation, not

really, at least to my sense from his own testimony, so

much a research scientist as a good hands-on engineer.

That’s basically what his career path has been out at the

laboratory, [2666] of being a good, solid, . »mpetent per-

son in applied engineering and getting facilities put to-

gether so that the research projects can go forward.

Again, as to all of them, I just don’t see any real evi-

dence that the decisions that were made were based upon

discriminatory motivations.

My one area of discomfort, and this, obviously, doesn’t

apply to Vresk, is what nappened afterwards. On the one

hand, it was not an area that plaintiffs developed very

much. You really didn’t spend very much time with any

of them on that subject. On the other, I suppose because

you didn’t, the defense didn’t spend much time in terms

of examining witnesses on what happened afterwards.

Here, I am thinking in terms of people who were at that

point, in a real sense, alumni of Argonne who specifical-

ly applied for some positions, who kind of had their hat

in the ring generally. There were references to not be-

ing qualified for certain things, but the record as it now

stands doesn’t really explain much as to why certain deci-

sions were made:

With respect to Dr. Ramaswami, as I recall, at least

three of the four positions called for a senior, which he

was not. Unless you can go back and find some discrimi-

natory animus by Committee A—I guess it was Commit-

tee A, wasn’t it?—that was at that point in 1985 a fact

————————

App. 53

that couldn’t be changed. With respect to some of the

others, there was evidence both in [2667] the documents

and some testimony regarding what happened, but not

enough that I ended up feeling very comfortable one way

or the other.

We have here then the statement that Mr. Von Zucker-

stein ascribes to Dr. Bernard to, in effect, saying: You

are giving us a real hard time, and I don’t want to re-

employ you—which then raises another matter which no-

body has really argued at this point, and that is: What

do you mean by “retaliation”? Obviously, if somebody files

a charge, and, therefore, an employer says, “Because you

filed a charge I am not going to deal with you,” that is

without question a statutory violation.

Here, with Mr. Von Zuckerstein, it went a good deal

further than that in not only individually pursuing a

charge, but between group efforts and letter-writing and

accusations regarding funding and stealing and various

other things, he put himself in a position which was con-

siderably beyond just filing a charge and letting the powers

that be process it. There does come a point where an em-

ployer in that situation can say: The well is poisoned so

much that we wouldn’t want you to be reemployed under

any circumstances. And where, depending upon what the

conduct was, the Court is going tc say: And you don’t

have to. But we really haven’t argued that one at all.

One last thing, and that is on the 1981 claim regarding

retaliation, it being a breach of an agreement, were the

[2668] plaintiffs entitled to a consideration through an in-

ternal process? Yes, although it certainly is not the same

kind of internal processes you would have in a collective

bargaining agreement, binding arbitration, all that sort

of thing.

Was there a following of that internal process? I think

there, the answer is yes. There were equity reviews.

App. 54

There was a communication of the results of that review

to the plaintiffs or those who pursued that avenue. The

mere fact that once there was a charge filed with the

EEOC that the laboratory was dealing with the plaintiff

through the medium of the EEOC rather than directly

doesn’t seem to me to change in any essential way the

fact that, yes, they went through a process. Once there

was a charge, they had to go through a process, not only

because of the EEOC but also 11286. This was their ob-

ligation. There are now the administrative agencies in-

volved and the lawyers and everybody else. Who talks

to whom gets changed somewhat, but the primary obliga-

tion, ““Yes, we will take a good hard look at it,” is the

one that they satisfied.

So that’s where I am at. I don’t know where, exactly,

that takes us.

MR. MC NEIL: With regard to the rehire claims, the

problem that we have at this point is that jobs at Ar-

gonne, as Your Honor has heard on several occasions, are

defined by requisition numbers and have specific require-

ments and specific duties, fall into certain sections. In the

case of Mr. Von [2669] Zuckerstein, not one of those jobs

has been identified as one for which he applied after he

left.

Dr. Jain, in his case, identified two generic job titles,

but, again, no idea when he applied for them, no idea

what the requirements were or testimony that he met

those requirements.

With regard to Ramaswami, all of the positions, three

of which you mentioned earlier, were applied for before

he left, before he filed his charge. No evidence that those

jobs were ever filled, no evidence that he was qualified

for the jobs.

THE COURT: I grant you that there is, so far as I can

rezali, no evidence that any of the jobs for which people

—_ |

App. 55

applied were filled. There isn’t any question, as I under-

stood the evidence, that a number of them were posted.

In fact, that’s how they would find out about them.

MR. MCNEIL: With regard to Dr. Ramaswami, he ac-

tually identified the postings. With regard to Dr. Jain,

that’s not true. With regard to Mr. Von Zuckerstein, he

did not identify any particuiar jobs. With regard to Pol-

ing Chang’s case, there is—

THE COURT: Well, to the extent that people did iden-

tify particular jobs, I assume that they were able to iden-

tify them because they were posted.

MR. MCNEIL: That’s correct. I guess what I am ad-

dressing is our ability to defend with regard to jobs for

[2670] which the plaintiffs have not even identified the

job number, when they applied, and have not introduced

any evidence in their case in chief—

THE COURT: Well, at this point, it seems-to me that

what I need to do or maybe what you need to do is why

don’t you supplement your motion with respect to that

aspect, and have you focus in on that one thing and re-

spond to it, and then let’s see where we are at.

In the meantime, until we know what and if, and with

the jury gone, we can just suspend things temporarily,

because to the extent then we need to go forward, we

ean go forward.

MR. MC NEIL: Perhaps what we can do, again, to save

time, on page 7 of the motion, we raise the arguments

in subsection (c) of paragraphs 16 and 17, but the memo-

randum does go into as much detail as we would ever

intend to go into. I know that Your Honor hasn’t had

this—

THE COURT: I have not had a lot time at it, and I

just don’t feel comfortable with it.

MR. MCNEIL: So with regard to the rehire positions

in the memorandum, we discuss each of the individuals,

App. 56

starting on page 18, and really would not have anything

to add regarding the factual details or the law for that

matter.

We list what we believe to be positions that were iden-

tified, for example, by Dr. Ramaswami, and we list the

positions, we refer to the letter that was submitted, al-

legedly [2671] submitted—

THE COURT: Well, maybe I better go back and take

a look at what you submitted and what you submitted—

unless you want to submit some more.

MR. GUBBINS: I think we should take a day to sub-

mit more. You are talking about the—

THE COURT: Hiring, the rehires.

MR. MC NEIL: Rehires.

MR. GUBBINS: Okay.

THE COURT: And then figure it out.

Pick a time.

MR. GUBBINS: Friday.

THE COURT: Friday, okay.

MR. GUBBINS: Do you want to meet Friday afternoon

then?

THE COURT: No. I would like a chance to sit and read

some of this stuff.

MR. GUBBINS: Well, from your remarks, is it that the

layoff and all the other things, you don’t think there is

a case there?

THE COURT: I just don’t think there is a case there.

MR. GUBBINS: Okay. Well, let me ask you—

THE COURT: Well, obviously, with respect to the 1981

claims, which have to be based on ethnicity, I don’t think

there is a case to go to the jury.

[2672] With respect to the Title 7 claims, since I am the

person who is making the decision, then it isn’t a matter

of could a trier of fact reasonably conclude that, but a

standard of given the fact that we have had the establish-

App. 57

ment of plaintiffs being a protected class, and then bad

things happened to them, we have had, as part of what

we have done during the last three weeks, a fairly con-

siderable exposition from both points of view as to why

that happened to them, so that we have gotten in not

only the laboratory’s justifications and your evidence of

pretext. Given all that, then I as the trier of fact am not

persuaded, putting that altogether, that discrimination has

been a contributing cause to what happened to the careers

of those plaintiffs.

I started out saying that the laboratory has a very dif-

fused decision-making process with fairly structured re-

views. There are people you can appeal to, and they take

another look, and if they don’t think there is a sufficient

showing of justification they require more. The evalua-

tions coming out of a number of years play a role. So that

plaintiffs in a case like this have a very difficult kind of

case to prove, because basically what you have got to

show is, you have got to persuade the trier of fact that

there was some sort of gigantic, sprawling conspiracy

where all these different people who factored into the

decision-making, or at least a number of the key ones

were motivated by discriminatory purposes. I just [2673]

don’t think you did that.

MR. LEFEVOUR: Your Honor has dealt with a lot of

the direct evidence. Is it your finding, just so it is clear,

that there was absolutely no circumstantial evidence as

to any discrimination? I just want to get that clear for

the record.

There was some evidence showing that these men did

talk to each other, the ones that the comments were

made. I just want to make sure that the ruling of the

Court is that there is no circumstantial evidence that

would support—

App. 58

THE COURT: Yes. That there is absolutely nothing

that anybody could reasonably say indicated some sort of

a bias by somebody? No, I am not going to say that.

What I am saying is that with respect to the jury

issues, that there is not enough on which a reasonable

trier of fact could rest in saying there is discrimination

on the basis of ethnicity, and on the basis of all the evi-

dence that was presented during the course of plaintiffs’

presentation, that I am not persuaded at the close of all

that evidence that the plaintiff has proved its case by a

preponderance of the evidence.

MR. LE FEVOUR: That’s fine. One other point, just,

again, so we have a record here. On the programmatic

promotions that Mr. Wade was discussing today, is your

finding that those do not create new and distinct relation-

ships?

THE COURT: I don’t think that one can be answered

that [2674] simply. I mean, obviously, on the basis of the

evidence, there were people who were doing straight re-

search, and then they would be a principal investigator

for a while, and then they would go back to straight re-

search, and then they might be a group leader of some

sort. You know, it depended on the project. Some projects

were big ones, some were small ones. Things kept getting

interchanged. .

Are some programmatic changes new and distinct rela-

tionships? Probably, yes. Are some of them not new and

distinct relationships? Probably, no. I don’t think any of

us are going to know what Patterson means until some-

body tells us with a good deal more definition than we

have had so far.

MR. GUBBINS: I suppose what we are asking is what

in your mind is left to be done as far as what you see

open still.

App. 59

THE COURT: Well, I have, as I said, on the basis of

just notes that I made out today, well, actually after

lunch, picking up from my notes in a fairly disjointed

fashion, unburdened myself. I leave to you whether I have

covered all the issues. If I have, the one that I am say-

ing I really want to think about more, and if somebody

wants to give me some help on it, I would welcome it,

and that is the rehire issue, which is basically a retalia-

tion issue.

MR. MC NEIL: Do you see any need for us to—the way

we focused on it_in our brief is in a discussion of the

prima facie case and the failure to introduce evidence, evi-

dence of [2675] pretext. It is on pages 18 through 22 of

the memorandum.

In addition to that, with regard to the Bernard decision-

making jobs, I would point out that Dr. Bernard did tes-

tify with regard to eight positions as to why Mr. Von

Zuckerstein— ;

THE COURT: Oh, I understand that. It is just that I

haven’t—

MR. MCNEIL: Well, I think we are satisfied—

THE COURT: If you are satisfied with what you pre-

sented, then I leave to you whether you want to supple-

ment or don’t want to supplement.

MR. GUBBINS: Well, we want to supplement.

THE COURT: But I, obviously, want to spend some

more time on that.

MR. GUBBINS: All right.

MR. BENNETT: And if we decide that we want to add

anything, which I don’t think we will, we’ll get ours in

by noon on Friday.

MR. MCNEIL: Maybe, since we are the movant, the

best way to go would be, if their brief is due—well, by

noon on Friday, it wouldn’t leave much time. We could

App. 60

do a reply by—you will be back next Wednesday? Submit

a reply earlier than that, within a day or two.

MR. GUBBINS: Well, we might as well take until Mon-

day. I forgot you will be out of town.

(2676] THE COURT: Why don’t you take until Monday,

and you take until Wednesday.

MR. MC NEIL: Wednesday.

THE COURT: Well, I have got to go to Washington

toward the end of the week. If you file, say, on Monday,

ean you file, say, by noon on Wednesday?

MR. MC NEIL: We can file by the end of Wednesday.

THE COURT: Okay.

MR. MC NEIL: We may request the Court Reporter to

do the Bernard transcript now which we have not or-

dered. We have ordered the plaintiffs’ transcripts with

the exception of Poling Chang.

R. GUBBINS: Okay. Thank you.

MR. BENNETT: Thank you, Your Honor.

PLAINTIFF VON ZUCKERSTEIN: Judge, may I ask

one question?

THE COURT: Sure.

PLAINTIFF VON ZUCKERSTEIN: What has the Court

felt was the reason for the exclusion of immigrants from

management in the EES Division, and has the Court con-

sidered the fact that when an immigrant was to move up

into the management ranks, that led to his layoff?

THE COURT: Well, the second one I don’t really un-

derstand.

The first one, I must say, people, I looked upon all

[2677] the way through this as somewhat of a red herring,

because this case was not about people taking over senior

management positions at Argonne.

If somebody like Dr. Chopra or somebody like Dr. Bhat-

tacharyya, if I have got the name pronounced right—

App. 61

MR. MC NEIL: Bhattacharyya.

THE COURT: —Bhattacharyya, if they were passed

over for senior positions and came in with a claim, we

would have different issues.

But yeu, for example—

PLAINTIFF VON ZUCKERSTEIN: I was recommended

for promotion. Instead of a promotion, I was laid off.

THE COURT: But we are not talking senior.

MR. LEFEVOUR: Thank you, Your Honor.

MR. MCNEIL: Just mechanically, should we be here

tomorrow for the dismissal of the jury?

THE COURT: I leave that to you. I thought they would

come in, and I would tell them, probably in the jury room,

tell them what happened.

MR. LE FEVOUR: Okay.

MR. MCNEIL: No need to be polled in any way?

THE COURT: No.

Maybe at this juncture, I ought to be the person who

talks to them.

MR. LEFEVOUR: Fine, Your Honor. That’s fine.

MR. MC NEIL: Thank you. -

MR. LEFEVOUR: Thank you, Your Honor.

(Proceedings concluded.)

App. 62

[DATED May 31, 1991;

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 86 C 6304

IVAN VON ZUCKERSTEIN, DR. DEVABHAKTUNI

RAMASWAMI, POLING CHANG, DR. MOHAN JAIN

and JOSIP VRESK,

Plaintiffs,

VS.

ARGONNE NATIONAL LABORATORY,

Defendant.

MEMORANDUM AND ORDER

On April 24, 1991, this court directed a verdict on §1981

claims and granted a Rule 41(b) dismissal respecting plain-

tiffs’ discrimination claims. We left open the retaliation

claims for further consideration. We consider those claims

now.

Plaintiffs urge that, in an effort to complete the jury

issues as suggested by the court, they have been improp-

erly foreclosed from completing the presentation of their

evidence and they therefore move to strike the motions

for a directed verdict and Rule 41(b) dismissal. That mo-

tion is denied, but with a caveat. Plaintiffs called all. the

witnesses they intended to call. All issues were explored

with those witnesses. There was no way to parse discrim-

————— O

App. 63

ination evidence as between ethnicity and national origin,

and, indeed, plaintiffs do not now claim they were foreclosed

from presenting any testimonial evidence respecting those

claims or retaliation claims, nor did they so contend at

the time the directed verdict and dismissal motions were

presented to the court. Their concern is that certain ex-

hibits were not presented to and therefore not considered

by the court. In urging that view, however, they have

filed a number of exhibits that were never listed in the

final pretrial order and they refer, generally, to evidence

that they were going to present in a rebuttal case. We

cannot consider exhibits not so listed and not intended

to be presented in plaintiffs’ case-in-chief. We are mindful,

however, that the emphasis was upon completion of the

evidence relevant to jury issues and that plaintiffs may

well have been reluctant to spend time on post-discharge

exhibits bearing wholly on the retaliation claims. We there-

fore have considered all listed exhibits now urged upon

the court by plaintiffs.

The retaliation evidence varies for each plaintiff. We

note at the outset that no retaliation claim was advanced

by Joseph Vresk in the complaint or in the final pretrial

order. We do not dismiss retaliation claims by him be-

cause there is none to dismiss. On the basis of the April

24, 1991 findings and conclusions, we hereby enter a judg-

ment for defendant and against plaintiff Vresk.

The parties are in general agreement about the legal

standards applicable to the retaliation claims. In the cir-

cumstances of this case a plaintiff must show that after

he complained about discriminatory treatment he was not

rehired and a contributing reason for the failure to rehire

was retaliation for the expression of that complaint—a

causal link between the complaint and the failure to re-

hire. There is no dispute that each of the four remaining

App. 64

plaintiffs complained about discrimination and that they

thereafter were not rehired. The real dispute is about the

casual link, with defendant contending that, to the extent

there were applications, there was insufficient evidence

that the plaintiff was qualified for the position or that

Argonne filled the position with someone only equally or

less qualified than the plaintiff, or filled it at all, or that

whoever made the employment decision was even aware

of the EEOC charges. It contends, in short, that there

was insufficient evidence to support plaintiffs’ ultimate

burden of establishing a casual link.

We start with the observations that the evidence disclosed

that Argonne was not at all adverse to hiring ‘‘alumni’”’

and, other things being equal, persons who had demon-

strated capabilities in prior Argonne employment probably

were preferred. It is also highly probable, given the nature

and number of Argonne’s professional staff, that charges

such as those here would be widely known in the Argonne

community. Finally, we note, as we have before, that Ar-

gonne’s needs for a particular project are often quite spe-

cific, and a scientist with excellent general qualifications

does not necessarily have the particular qualifications and

experience that the project requires.

Turning to the four plaintiffs, it is clear, as plaintiffs

come close to conceding, that the retaliation claims of

Poling Chang and Dr. Mohan Jain need inferential sup-

port from the evidence pertinent to the other two plain-

tiffs if they are to have any hope of succeeding. Chang

is deceased. The evidence is that he wrote a letter on

May 23, 1986, in which he asked to be considered for any

of eight posted positions. He was not rehired. Plaintiffs’

exhibit 9 (or it may be exhibit 10) provides some descrip-

tion of one of those positions, but even with respect to

that position we cannot tell whether plaintiff Chang’s back-

App. 65

ground and the requirements of that particular position

meshed, nor is there any evidence of who was selected

for any of those positions, if anyone was selected at all,

and what their comparative qualifications might have been.

To conclude that his failure to be selected was the result

of retaliatory animus would be rank speculation. Dr. Jain’s

evidence is just as meager. He applied for two or three

positions but he could not recall precisely what they were

or what detailed qualifications they required and |< did

not know anything about the people who filled those posi-

tions, if they were ever filled.

We know somewhat more about Dr. Ramaswami’s ap-

plications, but even here the gaps in information are for-

midable. Shortly before his layoff became effective on

September 30, 1985, after he returned from India, he

charged that the layoff was discriminatory and he applied

for three positions. Dr. Ramaswami was very selective

in his applications, much as he was when he subsequent-

ly sought employment elsewhere. Each of the three was

a top-of-the-line position. One was as a research program

manager, the second was as a senior engineer, and the

third was as a senior chemical engineer. As we under-

stand the evidence, he was not, in a technical sense, qual-

ified for two of the positions at the time of application,

because he-did not have senior status. That status could

be conferred at any time, however, and we assume that

the lack of status was not an insurmountable barrier to

his obtaining those positions. The reasons given for his re-

jection are, however, wholly consistent with the evidence.

Sather acknowledged that Dr. Ramaswami possessed the

requisite technical qualifications. The rejection was based

upon a lack of management experience and skills. The

positions clearly called for major managerial responsibil-

ities, and his background, just as clearly, was as a solid

App. 66

researcher, not as a manager. We do not know who, if

anyone, was ultimately selected for those positions (ap-

parently one was subsequently cancelled) and what their

qualifications were. Dr. Ramaswami’s claim would be more

persuasive if Argonne had selected someone with no more

managerial experience than he, but there is no such evi-

dence.

The only other evidence he submits is that on his layoff

day, in_his presence and after he had filed a charge, the

supervisor to whom he was speaking was told to be care-

ful about what he said in view of the pending charge—

hardly surprising legal advice—and a contemplated five-

day pay status project went awry for unexplained reasons.

Neither lends much support to a retaliation charge.

Plaintiff Von Zuckerstein was much more inclusive in his

applications, and that course of conduct, in and of itself,

creates problems for him. He presented some “smoking

gun” evidence, indicating a reluctance by Martin Bernard

to rehire him because of his suit against Argonne. Ber-

nard testified that he would have asked Von Zuckerstein

to leave if he had reached his seventh year without clas-

sification as a full scientist and that he could not have

been rehired for a full scientist position. That may be so,

but it was not a reason Bernard gave for rejecting Von

Zuckerstein’s applications for several posted positions.

Further, Von Zuckerstein’s aggressive, indeed, overly-

aggressive, pursuit of his claims, while it raises a question

about the limits of Argonne’s obligations to him, neces- ~

sitates a particularly searching review of Argonne’s rea-

sons for rejection, and we have reviewed all his testimony

as well as the pertinent exhibits. Retaliation proportional

to a presumed provocation is a favorite theme of literature

and, we think, fiction in those circumstances may well mir-

ror life.

App. 67

The claim founders, however, on the qualifications for the

positions subject to Bernard’s responsibility. This court,

over a period of weeks, was exposed to considerable evi-

dence respecting the matchup of person with position at

Argonne. Education, training, professional experience and

performance all played roles in deciding who among the

applicants, if anyone, then had the particular skills and

qualifications necessary to accomplish the particular pro)-

ect to which that person was assigned. Project funding

is geared to reaching results over an established time

frame; it does not permit the development of new skills by

otherwise talented people who do not have a solid foun-

dation in the skills the project requires. Like “a piece in

a puzzle, the person has to fit the contours of the space.

This court, over the course of the trial, was also ex-

posed to the process of that matchup, which included a

listing of the proposed position, the group assignment, the

degree level preferred, the nature of the discipline, a de-

tailed description of the professional qualifications and ex-

perience desired, and a detailed job description, in two

forms. Bernard wrote at the time, and more recently tes-

tified, that Von Zuckerstein was not sufficiently qualified

for the positions he sought, and our review of the ma-

terials relating to those positions convinces us that that

assessment was correct. Perhaps Bernard was pleased,

because of the claims against Argonne, to have a reason

to reject Von Zuckerstein’s applications, but reason he

had nonetheless; Von Zuckerstein did not have the requi-

site qualifications for those positions.

It is conceivable that some of the other positions for

which plaintiff applied were a possible matchup, but his

testimony is too general to evaluate other positions; the

purportedly supporting documents are not listed exhibits

and we do not know who, if anyone, filled those positions.

App. 68

Von Zuckerstein, by his own testimony, applied for ap-

proximately 50 positions for which he claimed he was qual-

ified. He clearly was not qualified for those within the

ambit of Bernard’s responsibility, and even a cursory re-

view of the documents not in evidence but. appended to

plaintiffs’ most recent filing indicates that he clearly was

not qualified for most of those as well. By ‘“qualified,”’

we mean in the sense that he was, on the face of it, a

good fit for that position. Even if he may have been qual-

ified for a couple of those positions, we could not so deter-

mine solely from the documents (which were not exhibits);

we do not know who, if anyone, obtained those positions

and there is little to suggest that the particular decision-

maker would have wanted to retaliate. The sheer magni-

tude of positions sought create a logistical problem for

plaintiff, since each position raised a number of eviden-

tiary issues. Yon Zuckerstein resolved it by confining his

proof to positions within the ambit of Bernard’s responsi-

bility, where he could present evidence of retaliatory moti-

vation, but that proof was not persuasive.

For the reasons stated herein and on April 24, 1991,

this court finds for the defendant and against the plain-

tiffs, and enters judgment for the defendant.

/s/ James B. Moran

Chief Judge,

United States District Court

May 31, 1991.

App. 69

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JUDGMENT IN A CIVIL CASE

IVAN VON ZUCKERSTEIN ET AL.

Vv. Case Number: 8&6 C 6304

ARGONNE NATIONAL LABORATORY

() Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT ISORDERED AND ADJUDGED that this court finds

for the defendant, ARGONNE NATIONAL LABORA-

TORY and against the plaintiffs, IVAN VON ZUCKER-

STEIN ET AL. and enters judgment for the defendant.

Date May 31, 1991

H. STUART CUNNINGHAM

Clerk

/s/ Willie A. Haynes

(By) Deputy Clerk

App. 70

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

April 7, 1993

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. JOEL M. FLAuMm, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

IVAN V. ZUCKERSTEIN, DEVABHAKTUNI

RAMASWAMI, MOHAN JAIN, et al.,

Plaintiffs-Appellants,

No. 91-2490 v.

ARGONNE NATIONAL LABORATORY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 86 C 6304—James B. Moran, Chief Judge.

ORDER

On consideration of the petition for rehearing and peti-

tion for rehearing en banc filed in the above-entitled cause

on March 23, 1993, by plaintiffs-appellants, no judge in

active service has requested a vote thereon,* and all of

* The Honorable Frank H. Easterbrook, Circuit Judge, did not

participate in the consideration or decision of this case.

App. 71

the judges on the original panel have voted to deny a re-

hearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby DENIED.

App. 72

RELEVANT STATUTES

42 U.S.C. Sec. 1981

§ 1981. Equal rights under the law

(a) All persons within the jurisdiction of the United

States shall have the same right in every State and Ter-

ritory to make and enforce contracts, to sue, be parties,

give evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and proper-

ty as is enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

(b) For purposes of this section, the term ‘‘make and

enforce contracts” includes the making, performance,

modification, and termination of contracts, and the en-

joyment of all benefits, privileges, terms, and conditions

of the contractual relationship.

(c) The rights protected by this section are protected

against impairment by nongovernmental discrimination

and impairment under color of State law.

(As amended Nov. 21, 1991, P.L. 102-166, Title I, § 101

105 Stat. 1071.)

*x* * * KX *

42 U.S.C. Sec. 2000e-2

§ 2000e-2. Unlawful employment practices

(a) Employer practices. It shall be an unlawful em-

ployment practice for an employer—

(1) to fail or refuse to hire or to discharge any indi-

vidual, or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would de-

prive or tend to deprive any individual of employment op-

portunities or otherwise adversely affect his status as an

employee, because of such individual’s race, color, religion,

sex, or national origin.

App. 73

(m) Except as otherwise provided in this title (42 U.S.C.

§§2000e et seq.), an unlawful employment practice is es-

tablished when the complaining party demonstrates that

race, color, religion, sex, or national origin was a moti-

vating factor for any employment practice, even though

other factors also motivated the practice.

*x* * Ke kK *

42 U.S.C. Sec. 2000e-3

§ 2000e-3. Other unlawful employment practices

(a) Discrimination for making charges, testifying, assist-

ing, or participating in enforcement proceedings. It shall

be an unlawful employment practice for an employer to

discriminate against any of his employees or applicants

for employment, for an employment agency, or joint labor-

management committee controlling apprenticeship or other

training or retraining, including on-the-job training pro-

grams, to discriminate against any individual, or for a

labor organization to discriminate against any member

thereof or applicant for membership, because he has op-

posed any practice made an unlawful employment prac-

tice by this title (42 U.S.C. §§2000e-2000e-17), or because

he has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing

under this title (42 U.S.C. §§2000e-2000e-17).

* * * K *

42 U.S.C. Sec. 2000e-5(g)(2)(B)

§ 2000e-5(g)(2)(B). Enforcement provisions

(B) On a claim in which an individual proves a viola-

tion under section 703(m) [42 U.S.C. §2000e-2(m)] and a

respondent demonstrates that the respondent would have

taken the same action in the absence of the impermissi-

ble motivating factor, the court—

(i) may grant declaratory relief, injunctive relief (ex-

cept as provided in clause (ii)), and attorney’s fees

and costs demonstrated to be directly attributable

only to the pursuit of a claim under section 703(m)

§ 42 U.S.C. § 2000e-2(m)].