Terry Deets v. Massman Construction Company, et al
Filing
Filed opinion of the court by Judge Williams. The judgment of the district court is REVERSED and the case is REMANDED for further proceedings. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Ann Claire Williams, Circuit Judge. [6725706-1] [6725706] [15-1411]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1411
TERRY DEETS,
Plaintiff‐Appellant,
v.
MASSMAN CONSTRUCTION COMPANY, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13‐CV‐883‐NJR‐PMF — Nancy J. Rosenstengel, Judge.
____________________
ARGUED OCTOBER 6, 2015 — DECIDED DATE FEBRUARY 3, 2016
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Terry Deets, a white construction
worker, appeals the grant of summary judgment for his for‐
mer employers in this suit asserting racial discrimination
under Title VII, 42 U.S.C. § 2000e–2, and 42 U.S.C. § 1981.
Because there is a factual dispute about the basis for Deets’s
layoff, we reverse the district court’s grant of summary
judgment and remand the case for further proceedings.
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I. BACKGROUND
This lawsuit involves Deets’s employment relationship
with Massman, Traylor, Alberici, a joint venture (“MTA”)
formed in 2009 by three construction companies—Massman
Construction Company, Traylor Brothers, Inc., and Alberici
Constructors, Inc.—to bid on a federally assisted project to
build a bridge (the Stan Musial Veteran’s Memorial Bridge)
across the Mississippi River connecting St. Clair County,
Illinois, to St. Louis, Missouri. In December 2009, MTA was
awarded the contract by the Missouri Department of Trans‐
portation. MTA then entered into a collective bargaining
agreement requiring it to hire operators for the project solely
from two local branches of the International Union of Oper‐
ating Engineers, Local 512 (for Missouri operators) and Local
520 (for Illinois operators).
A. Terms of Collective Bargaining Agreement
The collective bargaining agreement provided that MTA
would fill an open operator position by either asking the
union for a referral or recalling a former employee it had
hired from the union. (A union member was eligible for re‐
call for 45 days after he was laid off by MTA.) Under the
terms of the collective bargaining agreement, a worker ac‐
quired seniority on a machine—meaning that the worker
had a right to continue working on that machine while it
was in service—after he had worked on it for 3 consecutive
days. A worker lost seniority on a machine if it was shut
down for a week or longer. Project Superintendent John
Todt and Project Manager Dale Helmig (both Massman em‐
ployees) were responsible for all non‐administrative staffing
decisions.
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The Missouri Department of Transportation’s contract
with MTA contained federally mandated goals for participa‐
tion by minorities (14.7%) and women (6.9%) on the project.
Participation MTA was required to make a good faith effort
to meet the participation goals by, among other things,
maintaining a harassment‐free work environment, keeping a
file of the names and contact information of minority and
female referrals from the union, and developing on‐the‐job
training opportunities that expressly included minorities
and women. Because of its agreement with the operators’
union, MTA also had to secure the union’s cooperation “to
increase opportunities for minority groups and women
within the unions, and to effect referrals by such unions of
minority and female employees.” The contract also required
MTA to adopt an equal‐employment‐opportunity policy and
affirmative‐action plan ensuring that employees would be
treated without regard to race in all employment actions, in‐
cluding hiring, upgrading, demoting, laying off, firing, de‐
ciding rate of pay, and training. MTA’s affirmative‐action
plan also acknowledged its duty to seek the union’s coopera‐
tion in achieving minority hiring goals.
B. Deets’s Hiring and Layoff
MTA hired Deets, a member of the Illinois operators’
union, on May 9, 2012, after the union had referred him as
an oiler for a Manitowoc 2250 crane. As an oiler, Deets was
responsible for fueling, oiling, and greasing the crane and
ensuring that it operated safely. On May 17, Deets was laid
off because of a lack of work. He was recalled on May 29 to
work on the Manitowoc crane. On June 20, he was reas‐
signed to work on a Liebherr crane, but by early July it be‐
came apparent that the Liebherr crane was going to go out of
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service because of insufficient materials. In anticipation of
the shutdown, Todt, the project superintendent, asked Deets
if he was interested in filling in for the Tower crane oiler
who would be going on vacation for two weeks. On July 5,
Deets moved over to the Tower crane. The Liebherr crane
continued to operate on July 5 and 6, and then went out of
service.
On July 17, the day before the Tower crane oiler was set
to return, Deets said that he was approached by Todt, who
told him that he was being laid off at the end of the day.
When Deets asked for a reason, he said that Todt told him
“[m]y minority numbers aren’t right. I’m supposed to have
13.9 percent minorities on this job and I’ve only got 8 per‐
cent.” Later that day, when he collected his last paycheck,
Deets said that he was told by Jim Rogier, a pier superinten‐
dent, that he was “sorry to hear about this minority thing.”
Also that same day, Brent McKinnon, a crane operator on
the project, swore in an affidavit that Todt told him that he
“would have to terminate Deets’s 40‐hour‐minimum work
week because there was an insufficient number of non‐white
workers at the Worksite.” Deets acknowledged not being
guaranteed any position on the project but said upon mov‐
ing over to the Tower crane that Todt assured him that he
could return to his position on the Liebherr crane as soon as
materials for that crane became available—timing that
would coincide with the return of the Tower crane oiler from
vacation. On July 18, however, Todt filled the Liebherr crane
oiler position by hiring Jesse Green, who is a racial minority.
Todt refuted Deets’s recitation of events. Todt admitted
that he and Helmig, the project manager, had decided earlier
(on either July 14 or July 16) to request a minority union
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member to fill the oiler position on the Liebherr crane when
it came back into service. But Todt denied telling Deets that
“minority numbers” were the reason for his layoff. Todt ex‐
plained that he laid off Deets because there was no work: on
July 17 Todt was not sure when the Liebherr crane would go
back into service (and even if he had known, he said, he al‐
ready had decided not to rehire Deets) and there was no
other work available for Deets. According to Todt, Deets had
no claim to work on the Liebherr crane because it was out of
service for more than a week, so Deets was stripped of
seniority. Todt decided to request a minority oiler to work
on the Liebherr crane, because he had reviewed the labor re‐
ports for the project and discovered that, for the three weeks
leading up to Deets’s layoff, MTA had been out of
compliance with its minority participation goals for opera‐
tors. Todt admitted that replacing a white worker with a mi‐
nority worker so that MTA could meet its minority partici‐
pation goals would violate the affirmative‐action plan and
equal‐employment opportunity policy. Todt called Deets
later on the afternoon of July 17 and offered him the oppor‐
tunity to fill in for other oilers on July 20 and 21.
After he was laid off on July 17, Deets continued to rotate
through a series of short‐term assignments, being laid off
and recalled, until he was terminated from the project in De‐
cember 2012. The result of his July 17 layoff, he says, was a
drastic reduction in his work hours. Deets spent December,
January, and part of February working towards certifica‐
tions, and in February 2013 he told the union that he was out
of work and wanted to be considered for other projects.
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C. Prior Proceedings
After filing a charge of discrimination with the EEOC
and receiving a right‐to‐sue letter, Deets filed this lawsuit
alleging that he had been laid off because he is white, in vio‐
lation of 42 U.S.C. § 2000e‐2 and 42 U.S.C. § 1981. Deets sued
MTA and each of its individual component companies as‐
serting that he had been laid off “for no other reason than to
create a position for an individual based on their minority
status.” He sought relief in the form of lost wages, back pay,
front pay, lost fringe benefits, compensatory damages, and
punitive damages.
The defendants moved for summary judgment, arguing
primarily that Deets had not offered evidence of intentional
discrimination. Even if Todt had mentioned minority num‐
bers when he fired Deets, the defendants argued, that refer‐
ence related to Todt’s decision to request a minority oiler for
the Liebherr crane, not his decision to fire Deets.
The district court granted the defendants’ motion for
summary judgment on both Deets’s Title VII and § 1981
claims and in its opinion, concluded that Deets did not offer
any direct “smoking gun” evidence that Todt fired him be‐
cause of his race. The court agreed with the defendants that
Todt’s statement to Deets about “minority numbers” was
not direct evidence of discrimination because it was not clear
that the statement referred to Deets’s layoff. Furthermore,
the court determined that Deets’s circumstantial evidence
was unpersuasive. The context of Todt’s and Rogier’s state‐
ments to Deets demonstrated that the comments were di‐
rected at the likelihood of Deets’s rehiring on the project, not
his termination.
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In addition, the court rejected Deets’s argument that
Green’s immediate hiring was evidence that MTA’s explana‐
tion for his layoff—lack of work—was pretextual because
Todt and Helmig decided to hire Green before they termi‐
nated Deets, leaving no work available for Deets. The court
also concluded that Deets failed to establish a prima facie
case of discrimination under the indirect method of proof.
There were no “fishy circumstances” present: Deets was
hired and fired in accordance with the collective bargaining
agreement, and his employment history with MTA demon‐
strated that it was common for workers frequently to be laid
off and recalled.
Finally, the court granted the defendants’ motion for
summary judgment on Deets’s § 1981 claim because it al‐
ready had determined that Deets could not make out a pri‐
ma facie case of discrimination. Deets had properly identi‐
fied a contractual right, the court explained, but he provided
no evidence of discrimination with which to survive sum‐
mary judgment.
II. ANALYSIS
A. Sufficient Evidence to Support Title VII and Section
1981 Claims
On appeal, Deets argues that the district court erred
when it granted the defendants’ motion for summary judg‐
ment on his Title VII and § 1981 claims. The district court
erred as a matter of law, he maintains, when it concluded
that Todt’s statement was not direct evidence of discrimina‐
tion. And, Deets continues, the district court also overlooked
a key piece of direct evidence—McKinnon’s affidavit.
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1. Direct Evidence of Discrimination
Deets is correct that the district court erred as a matter of
law when it determined that Todt’s statement was not direct
evidence of discrimination. “Direct evidence is evidence
that, if believed by the trier of fact, would prove discrimina‐
tory conduct on the part of the employer without reliance on
inference or presumption.” Rhodes v. Ill. Dept. of Transp., 359
F.3d 498, 504 (7th Cir. 2004). Deets says that at the time that
he was laid off he asked Todt, “[h]ow can you possibly lay
me off?,” and Todt replied, “[m]y minority numbers aren’t
right. I’m supposed to have 13.9 percent minorities on this
job and I only got 8 percent.” Based on Todt’s statement, it
does not take any inference to conclude that Deets was laid
off because he was not a minority. That race was the factor
that led to Deets’s termination is clear on the face of Todt’s
statement. It is possible that a jury would credit Todt’s denial
that he ever made that statement, but that credibility deter‐
mination may not be resolved at summary judgment.
See Darchak v. Chi. Bd. of Educ., 580 F.3d 622, 632–33 (7th Cir.
2009) (“Employment discrimination cases often center on
parties’ intent and credibility, which must go to a jury unless
no rational factfinder could draw the contrary inference.”
(internal citations and quotation marks omitted).).
We are puzzled by the district court’s conclusion that
Todt’s statement related directly to his decision not to rehire
Deets rather than his decision to terminate Deets. True, in or‐
der for a statement to be probative of discriminatory intent,
it must be “related to the employment decision in question.”
Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000)
(internal quotations marks omitted). But Todt made the
statement at the time he informed Deets he was being laid
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off, see Oest v. Ill. Dept. of Corr., 240 F.3d 605, 611 (7th Cir.
2001) (explaining that a statement’s “temporal proximity” to
the adverse action “is often crucial” when determining
whether statement qualified as direct evidence of discrimi‐
nation), and directly in response to Deets’s inquiry about the
basis for his termination.
We are similarly puzzled by the defendants’ contention
at oral argument that the motivation behind Deets’s layoff
was immaterial because he was not entitled to work on the
Liebherr crane when it went back into service. The parties do
not dispute that Deets had lost seniority on that machine
when it went out of service. But just because Deets was not
entitled to that position does not permit MTA to lay him off
because of his race. Title VII applies even to at‐will employ‐
ment and does not permit an employer either to fail to hire
or to fire workers based on race. See Green v. Am. Fed’n of
Teachers/Illinois Fed’n of Teachers Local 604, 740 F.3d 1104, 1105
(7th Cir. 2014); Loucks v. Star City Glass Co., 551 F.2d 745,
747–48 (7th Cir. 1977).
The district court also erred when it failed to address
McKinnon’s affidavit. McKinnon swore that Todt told him
on the day that Deets was laid off that an insufficient num‐
ber of non‐white workers was the reason for the termination
of Deets’s “40‐hour‐minimum work week.” In its final order,
the district court did not discuss McKinnon’s testimony but,
if true, it provides additional direct evidence that Todt laid
off Deets because of his race.
2. Circumstantial Evidence of Discrimination
The district court also erred as a matter of law when it
concluded that there was insufficient circumstantial evi‐
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dence to permit a reasonable juror to conclude that Deets
was laid off because of his race. Deets assembled sufficient
“scraps of circumstantial evidence” to allow the trier of fact
to conclude that discrimination more likely than not lay be‐
hind the adverse action. Morgan v. SVT, LLC, 724 F.3d 990,
996 (7th Cir. 2013). First there are the alleged statements by
Todt (discussed above) and Rogier (telling Deets that he was
“sorry to hear about this minority thing” when Deets went
to pick up his last paycheck). Next, Todt fired Deets know‐
ing that MTA had been out of compliance with its minority
participation goals for three consecutive weeks. Third, MTA
hired Green, who is a racial minority, to work on the
Liebherr crane the day after terminating Deets. Finally, Deets
offered evidence that Todt’s explanation for his layoff—lack
of work—was pretextual because he likely knew that the
Liebherr crane was going back into service the next day at
the time he fired Deets.
Because Deets’s Title VII claim survives summary judg‐
ment, his § 1981 claim must also go forward. The parties do
not challenge the district court’s conclusion that Deets has
properly identified a contractual right, and Title VII claims
and § 1981 claims have the same liability standard. See Patton
v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 338 (7th Cir. 2002);
Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.
1996).
B. Mitigation of Damages Determined after Liability
The defendants argue that they are entitled to judgment
as a matter of law on Deets’s wage‐based damages claims
because he failed to mitigate his damages by looking for
other work after he was laid off. The defendants frame this
argument as an affirmative defense to Deets’s claim of un‐
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lawful discrimination. But the proper amount of damages—
including whether Deets mitigated his damages—should be
determined only after he establishes that the defendants un‐
lawfully discriminated against him. See, e.g., Gaffney
v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 460 (7th Cir.
2006); Hutchinson v. Amateur Elec. Supply, Inc., 42 F.3d 1037,
1044 (7th Cir. 1994).
C. Joint Venture Does Not Shield Defendants from Li‐
ability
The defendants also argue that the individual corporate
entities—Massman Construction, Traylor Brothers, and
Alberici Constructors—are entitled to summary judgment
because none of them was Deets’s employer; his employer
was the joint venture. But the defendants have it backwards:
the three individual companies formed a joint venture under
a contract governed by the laws of Missouri. Under Missouri
law, “[t]here is generally no essential difference between a
partnership and a joint venture and they are governed by the
same legal rules,” Binkley v. Palmer, 10 S.W.3d 166, 169
(Mo. Ct. App. 1999) (internal citations omitted), and “a part‐
nership is not regarded as a separate legal entity and cannot
sue or be sued,” Sarasohn & Co., Inc. v. Prestige Hotels Corp.,
945 S.W.2d 13, 16 (Mo. Ct. App. 1997). So Deets may not sue
MTA, a joint venture. The defendants deny that any of the
individual companies is Deets’s employer, but that cannot be
the case. One (or all) of the companies is liable under Title
VII as Deets’s employer, and there is a dispute of fact about
which company or companies that is. See Sklyarsky v. Means‐
Knaus Partners, LP, 777 F.3d 892, 895–96 (7th Cir. 2015) (ex‐
plaining that Title VII plaintiff can have joint employers).
Moreover, the purported lack of an employment relationship
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between Deets and the individual companies likely doesn’t
matter for purposes of Deets’s claim under § 1981 because “a
third party can be liable under § 1981 for interfering with the
plaintiff’s relationship with his employer.” Sklyarsky, 777
F.3d at 896; see Parker v. Scheck Mechanical Corp., 772 F.3d 502,
507 (7th Cir. 2014); Shaikh v. City of Chicago, 341 F.3d 627,
630–31 (7th Cir. 2003).
III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND the case for further proceed‐
ings.
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