Petition for Writ of Certiorari — Dix v. United Airlines, Inc.

Supreme Court, US.

(1) FILED

01 137 MAY 24 2001

ay OPFICE OF THE CLERK

IN THE

Supreme Court of the United States

CHRISTOPHER A. DIX

PETITIONER,

Vv.

-

UNITED AIRLINES, INC.

RESPONDENT

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

—

Christopher A. Dix, pro se

506 West Chicago

Plainfield, IL 60544

815-577-7440

QUESTIONS PRESENTED

In this case, the Seventh Circuit dismissed the

petitioner’s lawsuit against United Airlines for its

discrimination against him on the basis of race and

gender in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. The questions

presented are:

1. Whether a member of a group which has been

historically and presently subjected to a pattern of

flagrant discrimination by an employer can be legally

discriminated against by an Affirmative Action plan

which favors a protected class ‘which has been

historically under-represented to a lesser degree.

2. Whether a_ prospective employee who is

subjected to a racially discriminatory hiring process

and realizes that his rejection is certain because of

the color of his skin be required to satisfactorily

demonstrate certain skills required by the employer

immediately after being subjected to a racially hostile

screening process.

3. Whether an _ Affirmative Action plan

manufactured by an employer after it failed to dismiss

the petitioner’s prima facie case of discrimination and

remanufactured by the employer even throughout the

appellate process is a nondiscriminatory rationale for

requiring the petitioner to possess a second language

skills not required of African American applicants.

4. Whether an employer’s reliance on highly

subjective employment test results as the legal

nondiscriminatory reason for not hiring the petitioner

are pretext to discrimination when the undisputed

evidence shows that the recording of petitioner’s test

results had been falsified.

5. Whether an employer that rejects, on account of

race, a qualified white applicant who is able to perform

the federally mandated duties of a flight attendant and

then offers the same position to several African

Americans who are incompetent and unable to

perform the federally mandated duties of a flight

attendant be liable for damages incurred by the

qualified white applicant.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............cccccccccccccscsccscccscesees i

PETITION FOR A WRIT OF CERTIORARI .................++ l

TATE ccccoccccBeccccccoccccccccssccncnsccnscesonsssccccscencoccsces 1

A. Factual Background ...............cccceceeceeeeeeeeees 1

Reasons for granting the Petition .................ccceeeeeeeeees 3

United’s Affirmative Action plan victimizes an under-

represented Group. .............cccccccscccscccsecccescccssccsssceesees 3

United subjected the Petitioner to a racially hostile

environment that affected his performance of the job

GPPHICATION. ......2...cccccrcscrcsccccccccccrccccccccccscccsscccsoosesossess 4

United’s Affirmative Action plan was manufactured

after it failed to dismiss the Petitioner’s prima facie

Case Of GiscrimiMation. .......0.ccccccccccsccccccssscscsccccccsceceees 6

United manufactured false evidence to conceal its

illegally discriminatory reason for not hiring the

PI a: ccdcsaccccnccccceccsssdsccsosccssonssssnezensoncceseuteesoscocess 8

TABLE OF AUTHORITIES

~ Celotex Corp. v. Catrett,

BU WR Wg GIR vnctndekncenscccasevssscsceetnssesconsencs 8,

Diaz v. Pan American World Airways, Inc.

311 F. Supp 559 (1970) at 562..............:cceeeee eee 3

Johnson v. Transportation Agency

4BO U.S. at GSO-SS. ..cccccccccccoccccccccccccsccsecees 4,7,10

McNamara v. City of Chicago

867 F.Supp at 750 ...............ccccccccccccccsccscssscesees 10

Teamsters v. United States

ED UTE. CR DO ccncnccccecevccerensosscsenccsccseccsscsccsncccses 5

42 U.S.C. § 2OOO| et SEC. ............cccrccrcccccrcccccccccscscecees 1

PETITION FOR A WRIT OF CERTIORARI

Christopher A. Dix respectfully petitions for a

writ of certiorari to review the judgment of the United

States court of Appeals for the Seventh Circuit in this

case.

JURISDICTION

The judgment of the court of appeals was

entered on February 23, 2001. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATEMENT

This case presents questions of broad practical

importance to Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq.

A. Factual Background

On the morning of July 28, 1998, the petitioner,

Christopher Dix arrived at O’Hare International Airport

to pick up a United Airlines’ (United) flight attendant,

Jan Constantinendes, following the arrival of her

flight. The two arrived at Jan’s house minutes away

from the airport where Jan gave Dix the last of

approximately 10-15 “coaching” sessions on how to

speak and act at United’s Open House Session that

Dix would attend later that day. Constantinendes also

groomed Dix in preparation of his interview including

ironing his clothing to a crisp and clean appearance.

At no time prior to arriving at United’s Open

House was Dix aware that applicants needed to be

fluent in a language in addition to English to be

considered for the position of flight attendant. As is

required of all flight attendant applicants, Dix arrived

promptly at one of United’s Open House sessions in

Rosemont, Illinois. At the beginning of the Open

House, United’s hiring agent, Jody MHockinson

announced that all flight attendants needed to be

- fluent in a second language other than English unless

they were African American. Hockinson further stated

that anyone who does not meet this requirement

should leave (or as counsel for United reiterated

should “Hit the Road”) and come back when and if

United drops this requirement.

In spite of the fact that he is not African

American and is not bilingual, Dix stayed to complete

the Open House interview even though he knew at that

instant that there was absolutely no chance for him to

become a United flight attendant and all attempts

would only prove to be fruitless. Although Dix

successfully completed a written test with a score of

19 out of 20, he was understandably upset by the

racially discriminatory remarks made by Hockinson

that he had difficulty performing his oral presentation

including the proper use of eye contact with other

applicants and Hockinson.

At some time during the open house, Hockinson

identified and recorded Dix’s race and sex as she had

been trained and instructed to do by United since this

information is necessary for its discriminatory hiring

practice. Hockinson did so even though Dix

intentionally refused to self-identify his race and sex.

At the end of the Open House, Hockinson selected

three candidates whom she recognized as being fluent

in a second language in addition to English to

continue the interview process. Dix, a white male who

was not bilingual was not selected and left the Open

House.

In Dix’s good faith efforts to mitigate his

damages, Dix applied for and gained a position of

flight attendant with Ryan International Airlines. Dix

successfully completed the same flight attendant

training program required by the Federal Aviation

Administration that United’s prospective flight

attendants must pass. Dix performed his flight

attendant training with “Excellence” in United’s own

flight attendant training facility. Furthermore, After

United rejected Dix’s application for a flight attendant

position, United offered the same position to a dozen

African Americans who flunked the same flight

attendant training program.

Reasons for granting the Petition

The Seventh Circuit has cut Title VII loose from

its mooring in important respects that warrant review

by this Court. The District Court and Seventh Circuit,

in an egregious violation of established standard of

review ignored crucial elements that the evidence was

sufficient to support liability. This Court’s review is

warranted to forestall further distortion of Title VII.

United’s Affirmative Action plan victimizes

an under-represented group.

The Seventh Circuit ignoréd the “spirit” of Title

VII and Affirmative Action when it permitted United to

“legally” discriminate against Dix by ruling that

United’s Affirmative Action plan is legal. The fact that

United’s Affirmative Action plan was not enacted at the

time Dix applied for a flight attendant position and is

in conflict with the undisputed racially discriminatory

hiring conditions to which Dix was subjected, its

Affirmative Action should not even be relevant to this

lawsuit. However, even if the plan is relevant Dix

cannot be targeted or victimized by any Affirmative

Action plan when applying for a flight attendant

position.

“United ... began in the 1930’s to employ all-

female cabin crews [stewardess/flight attendants]”

Diaz v. Pan American World Airways, Inc. 311 F. Supp

559 (1970) at 562. Even in the 1970’s, United refused

to hire males as flight attendants unless they resided

in Hawaii. In 1997 and 1998, United offered an

opportunity to train as a flight attendant to |

approximately one African American male for every |

three African American females who received the same

opportunity. If United was sincerely concerned about

correcting the imbalance between the number of its

African American flight attendants and African

Americans in the qualified labor pool, it would provide

the same equal employment opportunity for Black

males as it does for Black females. The undisputed

evidence showed that United offered opportunities to

train unqualified African American females as flight

attendants instead of qualified males. Furthermore,

males continue to be under-represented as United

flight attendants

Given the fact that United historically and

presently discriminates against males and that any

under-representation of African American flight

attendants can be attributed to the fact that African

American males are discriminated against because of

sex rather than race, the only Affirmative Action plan

that can correct the manifest racial imbalance is one

that provides hiring quotas for males.

As the evidence clearly shows, United’s Affirmative

Action plan is an invidious discriminatory policy

intended to discriminate against both African

Americans and males. An Affirmative Action plan is

consonant with the purposes of Title VII only if the

evidence shows that it was adopted to correct a

manifest imbalance in traditionally segregated job

categories. Johnson 480 U.S. at 630-33. For the

foregoing reasons, the Court of Appeals decision

confirming the District Courts validation of United’s

Affirmative Action plan should be reversed.

United subjected the Petitioner to a racially hostile

environment that affected his performance of the

job application.

eo

Despite the fact that the evidence clearly shows

that United manufactured false evidence to make it

appear that Dix’s application for a flight attendant

position was rejected because he had substandard

“oral skills” and a substandard “professional image”

the Seventh Circuit erred by requiring Dix to

demonstrate that he possessed sufficient skills to

become a flight attendant after he was subjected to

United’s racially discriminatory hiring policy. After Dix

discovered that he would not become a United flight

attendant because of the color of his skin, he still

endured the humiliation of explicit. and certain

rejection which affected his ability to perform his oral

presentation.

In Teamsters v. United States 465 U.S. at 365,

the Court determined that “If an employer should

announce his policy of discrimination by a sign

reading “Whites Only” on the hiring office door, his

victims would not be limited to the few who ignored

the sign and subjected themselves to personal rebuffs”

Dix was one victim of discrimination who did endure

the certain rejection even though it affected his ability

to demonstrate his skills by way of a motivational

enticement because Dix knew no matter how well he

performed during the Open House, he still was not

going to become a flight attendant as Hockinson

admitted:

Q. [By Mr. Dix] So even if this white male,

or any other group other than African

American, if they met every single requirement

except for that language requirement, they

would be not allowed to continue on with the

' interview process

A. [By Hockinson] That is correct.

Dix was also emotionally hindered by United’s

discriminatory hiring practice to demonstrate his skills

since he was understandably upset that such a racist

comment had been uttered at the commencement of

an employment Open House. What the Seventh

Circuit failed to understand is that Dix was already a

victim of an illegally discriminatory hiring practice

even before he applied for the flight attendant position

and that any test results brought forth by United are

of no relevance to this lawsuit. For this reason alone,

Dix should have had Summary Judgment entered in

his favor.

United’s Affirmative Action plan was manufactured

after it failed to dismiss the Petitioner’s prima

facie case of discrimination.

The Affirmative Action plan articulated by

United is irrelevant to this lawsuit for two reasons:(1)

the Affirmative Action plan did not exist at the time

Dix applied for a flight attendant position on July 28,

1998. (2) the Affirmative Action plan articulated by

United is diametrically opposed to the racially

discriminatory hiring practice to which it subjected

Dix

On June 12, 1998, United’s Flight Attendant

Manager sent a letter to one of its current African

American employees, Allisah Love, who unsuccessfully

attempted to transfer to a flight attendant position. In

it she wrote, “We pay considerable attention to

standardization so that each applicant is evaluated

fairly and on the same criteria as every other applicant

for the position.” In Kress’s answer to Interrogatories

submitted by Dix, she then claimed that since 1995,

“African Americans are considered without regard to

their ability to speak conversantly in a _ second

language.” United’s Affirmative Action program could

not have existed since it permits African Americans to

be evaluated using different criteria than is expected of

non-African American applicants.

United’s articulated Affirmative Action plan is

inconsistent with the undisputed discriminatory hiring

conditions experienced by Dix. Kress testified under

oath that “Applicants who participate in an open

interview session [at times when United only selects

applicants who are conversant in a second language]

and otherwise meet United’s qualifications for a flight

attendant position, but are not conversant in a

language in addition to English, are notified in writing

that their applications will be maintained for a period

of one year.” To the contrary, when Dix applied for a

flight attendant position, non-African-American

candidates are not permitted to apply for a flight

attendant position and are instructed to leave. It is

United’s position that Dix had no right to even be at

the Open House interview and Dix was informed by

United’s lawyer that he should have “HIT THE_ROAD”

when Hockinson told him to. leave.

Thus, United failed to articulate an Affirmative

Action plan that actually existed when Dix applied for

a flight attendant position and, therefore, never

articulated a nondiscriminatory rationale for its

racially motivated hiring policy as is required for a

defendant to defeat a proven case of discrimination

Johnson, 480 U.S. at 626.

Furthermore, United presented new and false

evidence in support of its Affirmative Action plan.

United claimed that 15% of the qualified labor pool is

African American. The Petitioner proved that the

qualified labor pool, however, is less than the African-

Americans in the general population which was 12.8%

based upon the most recent U.S. Census data

available at the time Dix applied for a flight attendant

position. Dix pointed to the fact that Blacks have a

lower percentage of high school graduates than whites

and that Blacks have a higher percentage of felony

convictions than whites. Because a flight attendant

applicant must be a high school graduate and must

not have been convicted of a felony, the percentage of

African Americans qualified to be flight attendants is

less than 12.8%. Regardless of whether it was done

because of its “corporate insanity” or its crass

arrogance, United first stated that the qualified labor

pool is the _job category of Public Transportation

Attendants. Because of the fact that United requires

no experience in such a category to become a flight

attendant and offers no _ proof that Public

Transportation Attendants can pass _ federally

mandated flight attendant training like Dix did with

“Excellence” this figure can only be rejected and

should only be addressed by the Court in disbarring

and fining United’s attorneys for proffering such

nonsense. By rejecting Dix’s evidence that United’s

completely fraudulent claim that African Americans

account for 15% of the qualified labor pool, the

Seventh Circuit failed to draw reasonable inferences in

his favor when considering United’s motion for

Summary Judgment as required by Celotex Corp. v.

Catrett, 477 U.S. 317, 322. |

United manufactured false evidence to conceal its

illegally discriminatory reason for not hiring the

Petitioner.

United presented to the District Court and the

Seventh Circuit, a preliminary evaluation form which

United claimed was used by Jody Hockinson to record

her evaluation of Dix’s “oral skills” and “professional

image.” However, the undisputed evidence shows that

this form which shows Dix received substandard

scores is false and manufactured. Hockinson stated

under oath that “seven African-Americans were among

the 41 applicants who completed the open house

session attended by Dix” but the preliminary

evaluation form that United claimed was used to

record Dix’s scores shows that 36 applicants were

present at this particular open house session.

Furthermore, Dix stated under oath that he sat

between two other applicants who were identified as

applicant number 30 and 32, but the preliminary

evaluation form that United falsely claimed was used

to record Dix’s scores shows that there was no

applicant number 30. A reasonable person could only

conclude that United falsified evidence to make it

appear that Dix has substandard “oral skills” and

“professional image.” United produced no other

document that was consistent with the testimony of

both parties so a reasonable fact finder could only

conclude that United’s claim that Dix has substandard

skills is, in fact, pretext for discrimination.

Furthermore, there is strong evidence that good

“oral skills” and a good “professional image” are not

even required to become a United flight attendant. For

instance, United claims that a person with below

standard oral skills has “poor listening skills, i.e.

needed repeated instructions/ clarification, does not

follow instructions” and one who use of

“content/form of language [is] often inappropriate,

{and who uses] slang.” The undisputed evidence shows

that Hockinson’s ‘oral skills” are so decrepit that

giving her instructions is no more effective than

talking to a “Brick Wall” as evidenced by her

deposition:

Q. [By Mr. Dix] *...and don’t shake your

head yes or no. Actually answer yes or

no...Answer yes or no.”

Q_ [By United’s attorney] In other words,

you can’t say “uh-huh” or “uh-huh.” You have

to say yes or no or give some sort of an audible

answer.

Obviously giving simple instructions to a United

flight attendant is just “wasting your breathe” because

twice during her short interview (30 double spaced

pages) Hockinson twice answered the following to Dix’s

question:

A. [By Jody Hockinson] “Uh-huh.”

(Deposition p.10)

A. [By Jody Hockinson] “Uh-huh.”

(Deposition p.13)

There is strong evidence that shows United’s

flight attendants as well as its trainers collectively

have a substandard “professional image.” United

considers “[one who] did not demonstrated appropriate

use of humor” and one who is ‘unfriendly,

unapproachable, impolite, or rude” to have a

substandard “professional image.” The undisputed

testimony showed that at United’s own flight attendant

training facility, United provides its prospective flight

attendants with jumpsuits to wear in an attempt to

protect ones street clothing while performing certain

exercises. One such jump suit which bears the United

Logo also bears United’s “safety training theme” which

is “Kill Them All. Let God Sort Them Out.” Dix

found this kind of humor to be extremely morbid and

inappropriate since United has actually had some of

its passengers die on its aircrafts.

The Seventh Circuit failed to take notice of this

evidence when it granted summary judgment in favor

of United in opposition to Celotex Corp. v. Catrett, 477

U.S. 317, 322 which requires that all reasonable

inferences be drawn in the nonmoving party’s favor.

Lastly, legally discriminatory hiring practice like

the ones validated in McNamara v. City of Chicago 867

F.Supp at 750 and Johnson 480 U.S. at 635 did not

authorize blind hiring without concern for

qualifications. However, the undisputed evidence

10

shows that United does authorize blind hiring (or

should we say “deaf hiring”) without concern for

qualifications since it rejected Dix because of his race

who is “excellent” at performing the duties of a flight

attendant and thereafter attempted to hire twelve

African American flunkies who could not pass the

minimum federally aviation requirements for flight

attendants so that all airline passengers can have

some opportunity to survive an unfortunate airline

crash instead of letting God decide where their next

trip ends.

Conclusion

For the foregoing reasons the writ of certiorari

should be granted.

Respectfully Submitted

Christopher A. Dix

11

is

Appendix:

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHRISTOPHER A.DIX )

Plaintiff, )

y

VS. ) Case No. 99 C 2597

)

UNITED AIR LINES, INC., ) |

Defendant. ) (filed April 20, 1999)

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Christopher Dix, who filed this lawsuit

pro se, claims that defendant United Air Lines, Inc.

discriminated against him on the basis of his race

(Caucasian) in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e-2(a) & (1), and 42 U.S.C.

§1981 in connection with Dix’s application to become

a flight attendant. Specifically, Dix says that United

required Caucasian applicants to be bilingual but did

not impose the same requirement on African-American

applicants; he alleges that he was subjected to

different terms and conditions of employment based

on his race. Though Dix does not specifically allege in

his complaint that he was not hired as a result of

differential treatment, it is a fair inference that that is

what he claims.

United has moved for sumimary judgment,

arguing that the different requirements for Caucasian

12

and African-American applicants had nothing to do

with why Dix was not hired, and that even assuming it

did, the policy was entirely legal. Dix has likewise

moved for summary judgment, arguing that he was

denied employment due to an illegally discriminatory

hiring practice.

Facts

United periodically conducts “open interview”

sessions for prospective flight attendants. During

some periods, United seeks to hire flight attendants

who are conversant in a second language besides

English. During these periods, otherwise qualified

applicants who are not conversant in a second

language are advised that their applications will be

kept on file for a year and will be considered when

United is not seeking applicants with foreign language

skills.

Since 1995, during periods when it is seeking

bilingual flight attendants, United has excused

African-Americans from the _ second-language

requirement, in an effort to increase its minority-

hiring. Overall, however, a large number on non-

bilingual applicants are selected to participate in

United’s training program for flight attendants. In

1997, 66% of the non-bilingual applicants selected

(1303 of 1969) were white; in 1998, the figure was

65% (1175 of 1811).

In July 1998, Dix saw a _ newspaper

advertisement placed by United seeking “bilingual

flight attendants.” The ad gave the time and place for

several open interview sessions in Rosemont, Illinois.

Dix, though not bilingual, attended one of the

sessions. He says that at the outset of the session, a

United representative stated to those present that

“everybody here has to be conversant in another

language unless you are African-American” and that

“if you don’t meet these requirements, you should

13

leave.” Dix was not bilingual or conversant in a

second language, but he did not leave.

Dix and the forty or so other applicants who

stayed were taken to another room where each was

given a “Personal Information Sheet” and a “Flight

Attendant Application Registration Form” to complete.

On the form, Dix checked off that he was conversant

in an “other” language, but did not say what language

it was. (The form listed only foreign languages, not

English; presumably Dix was indicating that English

was the “other” language in which he was conversant.)

Following administration of a written test, the

applicants were each asked to give an _ oral

presentation on why he or she would be a good flight

attendant. In his interview, Dix received poor scores,

below the minimum acceptable for “professional

image” and “oral communication skills.” It is

undisputed that it never came up that Dix was not

conversant in any language other than English. After

the presentations, United’s representative announced

that three people were being chosen to continue with

the interview process; Dix was not one of the three,

nor were any African-Americans.

In 1973, the Equal Employment Opportunity

Commission sued United, alleging that it had engaged

in a pattern and practice of discrimination on the

basis of race in employment in a number of positions,

including that of flight attendant. EEOC v. United Air

Lines, Inc., No. 73 C 972 (N.D. Ill). In 1976, United

entered into a consent decree requiring it to take

affirmative measures to recruit African-American flight

attendants and setting short-term and long-term goals

for the representation of African-Americans in flight

attendant positions. At that time, 10.3% of United’s

flight attendants were from minority groups; it is

unclear what percentage of its flight attendants were

African-American. The decree included a “long term”

goal, which the parties hoped United would be able to

meet within five years, that 17% of United’s flight

attendants would be members of minority groups.

United still maintains an affirmative action

program with respect to the hiring of African-American

flight attendants. As of January 1, 1998, 8.66% of its

flight attendants were African-American, as compared

with 15% in the qualified labor pool.

Discussion

We will deal with United’s summary judgment

motion first. In addressing that motion, we construe

the facts in the light most favorable to Dix, the non-

moving party, and draw reasonable inferences in his

favor. Celotex Corp. v. Catrett, 417 U.S. 317, 322

(1986).

Assuming for purposes of discussion that

United in fact had an unlawfully discriminatory policy,

Dix must have evidence from which a reasonable fact

finder could conclude that he was injured as a result

of that policy. See Melendez v. Illinois Bell Telephone

Co., 79 F.3d 661, 668 (7th Cir. 1995). He has none.

Dix noted on the Personal Information Sheet that he

was conversant in another language. Even though

this was untrue, it is undisputed that Dix was not

asked about this in his interview. In short, there is no

evidence that his inability to speak a language other

than English had anything to do with the fact that he

was not hired. Indeed, there is no evidence that

United’s representatives had any idea that he lacked

the ability to speak another language. Dix’s alleged

injury (the non-hiring) thus was not the result of the

allegedly discriminatory policy. See, e.g., Carpenter v.

Board of Regents of University of Wisconsin, 728 F.3d

911, 915 (7th Cir. 1984)(disparate impact case;

plaintiff must show he was injured by challenged

policy); Coe v. Yellow Freight System, Inc., 646 F.2d

444, 451 (7th Cir. 1981)(same). Rather, the evidence

15

is undisputed that Dix -was rejected because he

performed poorly in his interview.

Dix’s fallback position is that he was hampered

in his interview because he was distressed by the fact

that United’s representative had started the session

by announcing what Dix felt was a discriminatory

policy. It is conceivable that a Title VII or §1981

plaintiff could, in appropriate circumstances, sustain a

claim on such a theory. To illustrate, imagine that

United’s representative had started the meeting by

saying that black people don't have what it takes to be

a flight attendant, or that any man who applies to be a

flight attendant must be gay. A plaintiff who could

show that he or she was chilled from proceeding, or

that his performance at the ensuing job interview was

affected, by such discriminatory statements might well

be able to make out a claim under Title VII. But even

if this is a viable theory in the abstract, a plaintiff

making such a claim would have to show, at a

minimum, that the employer’s statements reflected

unlawfully, discriminatory attitudes or beliefs;

otherwise an employer would be subject to suit for

announcing a perfectly legal affirmative action plan.

We turn, therefore, to United’s justification for its

differential treatment of Caucasians and African-

Americans at the interview session.

United maintains that excusing the two-

language requirement for African-Americans was part

of a legal affirmative action plan. As noted earlier,

United entered into a consent decree with the EEOC in

1976 requiring it to take affirmative steps to increase

the percentage of African-American flight attendants.

It maintains that its differential treatment of African-

Americans and other applicants at the Rosemont

interview session was one aspect of its continued

16

pursuit of this policy.1 An affirmative action plan is

valid under Title VII if it is adopted and designed to

correct manifest racial imbalances in traditionally

segregated job categories and does not unnecessarily

trammel the interests of white employees. Johnson v.

Transportation Agency, 480 U.S. 616, 628 (1987).

United has offered some evidence of a historical

imbalance among African-Americans in flight

attendant positions. As of January 1998, 8.66% of

United’s flight attendants were African-American; the

general population is 15% African-American. Dix

objects that the comparison is not relevant, as United

hires only persons with a high school education as

flight attendants; he says that United should have to

demonstrate an imbalance between its work force and

the percentage of African-Americans with a high

school education. But Johnson makes clear that a

perfect comparative fit of the type Dix seeks is not

required when an employer is attempting to justify an

affirmative action plan as a defense to a discrimination

suit; the Supreme Court in Johnson noted that in

Steelworkers v. Weber, 443 U.S. 193, 198-99 (1979), it

had approved a comparison quite similar to the one

that United has used here. Johnson, 480 U.S. at 633,

nn.10 & 11.

United’s evidence is somewhat thin on the

question of whether the imbalance is “historic.” It

claims that the 1976 consent decree “recognized” a

historic imbalance; however, it cites no particular

provision of the decree to support this claim, and we

see no such finding in the decree itself. But the

! United’s representative indicated when deposed

that they were unaware of any written embodiment of its

affirmative action policy, but that does not make the policy

illegal. Dix does not dispute that the policy of excusing

African-Americans from the two-language requirement

exists; indeed the existence of the policy forms the very

basis for his lawsuit.

attachments to the decree reflect that as of 1976,

10.3% of United’s flight attendants were members of

minority groups (a classification considerably broader

than African-Americans), as compared with 17% in the

population at large; the percentage of minorities in the

general population was not materially lower in 1976

than in 1998. So United has succeeded, though by

the skin of its teeth, in showing that a historic

imbalance exists.

To determine whether an affirmative action plan

unnecessarily trammels the interests of white

employees, a court must consider whether the plan

absolutely bars whites from employment, whether

white workers are discharged because of the plan, and

whether the plan is intended to last only until the

company can achieve racial balance. See Weber, 443

U.S. at 208. United’s plan certainly qualifies on the

first two aspects of this test. The plan does not bar

whites, not even non-bilingual whites, from

employment as flight attendants. United has offered

evidence, uncontradicted by Dix, that in 1997-1998,

fully two-thirds of the non-bilingual applicants

selected by United were Caucasians. Moreover, the

plan relates only to hiring, not to discharge; there is no

indication that white workers are discharged because

of the plan.

Though United has offered no _ evidence

concerning the anticipated duration of the plan, this is

not critical in this case, for three reasons. First, it

appears that United is still operation pursuant to the

1976 consent decree, which means that its affirmative

action program is subject to court supervision.

Second, the burden of any uncertainty falls upon Dix,

not United; when an employer articulates an

affirmative action plan as the basis for the challenged

employment decision or action, the burden lies with

the plaintiff to show that the plan is invalid or that the

employer’s reliance on it is a_ pretext for

18

discrimination. Johnson, 480 U.S. at 626; Janowiak

v. Corporate City of South Bend, 836 F.2d 1034, 1036

(7th Cir. 1987). Dix has done neither. Finally,

United’s plan takes a gradual approach with a minimal

intrusion on the legitimate expectations of other

applicants; non-bilingual Caucasians like Dix still

have ample opportunities for employment as United

flight attendants. Under these circumstances, the

longer duration of the plan is less significant. See

Johnson, 480 U.S. at 640.

In sum, Dix has offered no evidence form which

a fact finder could conclude-that United’s affirmative

action plan is invalid. He therefore cannot defeat

United’s motion for summary judgment

19

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 22, 2001"

Decided February 23, 2001

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

No. 00-3513

Appeal from the United

CHRISTOPHER A. DIX States District Court for the

Plaintiff-Appellant, Northern District of Illinois,

Vv.

Eastern Division

No. 99 C 2597

UNITED AIRLINES, INC.,

Defendant-Appellee. Matthew F. Kennelly,

Judge

(filed September 27, 2000)

ORDER

Christopher Dix, a white male, applied to

become a flight attendant for United Airlines, and

when United refused to hire him, he sued the airline

for discriminating against him on the basis of his race

and gender, 42 U.S.C. § 2000e. The district court

dismissed Dix’s gender discrimination claim and later

20

granted summary judgment for United on Dix’s race

discrimination claim. We affirm.

Dix attended a United open-house interview

session for prospective flight attendants in 1997 [sic].

At that open house, United flight attendant Jody

Hockinson announced that United was then seeking

only candidates who were conversant in a language

besides English. Hockinson also announced that the

second language requirement was waived for African-

American candidates, as part of United’s affirmative

action plan. Despite the fact that Dix did not speak a

second language, he filled out an application and

checked off the “conversant” box in the language line-

item marked “other.” Later Hockinson asked each

applicant to give a brief oral presentation on why he or

she would be a good flight attendant. Based on the

presentations, United evaluated the applicants on

their professional image and oral communication

skills, assigning each applicant a score from one to

five, with five being the highest score. United required

a minimum score of three in both categories to

continue with the interview process. Dix received a

score of one for professional image and two for oral

communication skills, and was not selected to

continue with the interview process. None of the seven

African-Americans who completed the application

process to this point was selected to continue either.

Dix filed a charge of discrimination with the EEOC,

alleging that United discriminated against him based

on race and objecting to United’s policy of waiving the

second-language requirement for African American

applicants. The EEOC dismissed Dix’s claim and

issued a right-to-sue-letter, and Dix then timely filed

this suit against United, alleging that United had

discriminated against him on the basis of race and

gender.

21

The district court dismissed the gender

discrimination claim because Dix had not presented

that claim to the EEOC, and later granted summary

judgment for United on the race discrimination claim.

The court found that Dix could not have been harmed

by the purportedly discriminatory second-language

policy because United had no reason to know that,

contrary to his claim on his job application, he could

not speak a second language. Moreover, the court

determined that the undisputed evidence showed that

Dix was not hired because he performed poorly in his

interview. -In the alternative, the district court found

that United’s affirmative action plan was valid.

On appeal, Dix presents a host of issues, non of

which he supports with citations to the record or

relevant legal authority, arguably in violation of Fed.

R. App. P 28(a). See Collins v. Educ. Therapy Ctr., 184

F.3d 617, 622 (7% Cir. 1999); Mathis v. New York Life

Ins. Co., 133 F.3d 546, 548(7% Cir 1998)(per curiam).

In addition, Dix’s brief lacks a statement of facts, also

in violation of Fed. R. App P. 28(a). See Collins, 184

F.3d at 622. Nevertheless, because Dix proceeds pro

se we will address the merits as best we can.

Dix first argues that the district court erred in

finding that he had not been injured by United’s

second-language policy. Dix contends that United did

in fact know that he spoke only English, and

deliberately downgraded his oral communication and |

professional image skills in order to cover up its. :

discriminatory reason for refusing to hire him. But he |

points to nothing in the to establish either that United |

knew he spoke only English or that United falsely

assessed his qualifications. Dix instead seeks to

demonstrate his suitability for the job by noting his

employee-of-the month award at the Lone Star

22

Steakhouse and Saloon around the time of his

interview and his subsequent hiring by another airline

as a flight attendant. Even if we assume that United’s

policy has somehow injured him, Dix’s contentions

about his ability do nothing to undermine the

credibility of United’s explanation that it did not hire

Dix because he performed poorly at his interview at

the open house. See Baron v. City of Highland Park,

195 F.3d 333, 341 (7t Cir. 1999) (affirming summary

judgment in ADEA case for village that refused to

promote applicant who gave poor interview).

Dix next argues that United’s affirmative action

plan is unlawful because no “racial imbalance” exists

among United’s flight attendants. An affirmative

Action plan is legal if it is designed to correct manifest

racial imbalances in traditionally segregated job

categories and does not unnecessarily “trammel” the

interests of white employees. Johnson v. Transportation

Agency, 480 U.S. 616, 628-30 (1987). The district

court found that United had offered sufficient evidence

of historic racial imbalances, and United’s affirmative

action plan did not hinder white employees because

they could take part in other open-house interviews

that did not impose a bilingual requirement. Dix

makes several cursory arguments that any “racial

imbalance” among United flight attendants is illusory,

but points to no supporting evidence and has therefore

waived them. See United States v. Vest, 116 F.3d

1179, 1189, n.4 (7 Cir. 1997).

? AFFIRMED

23