Oliver v. Joint Logistics Managers Inc

Filing 36

ORDER entered by Judge Sara Darrow on February 24, 2017. Defendant's 28 Motion for Summary Judgment is GRANTED. Defendant's 29 Motion for Hearing is DENIED. The Clerk is directed to enter judgment and close the case. (RS1, ilcd)

E-FILED

Friday, 24 February, 2017 02:05:28 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
ANTHONY OLIVER,
Plaintiff,
Case No. 4:15-cv-04014-SLD-JEH

v.
JOINT LOGISTICS MANAGERS,
INC.,
Defendant.

ORDER
Before the Court are a Motion for Summary Judgment, ECF No. 28, and a Motion for
Hearing, ECF No. 29, by Defendant Joint Logistics Managers, Inc. (“JMLI”) on Plaintiff
Anthony Oliver’s claim for race discrimination in employment and retaliatory discharge under
42 U.S.C. § 1981.
BACKGROUND1
JMLI hired Anthony Oliver, an African-American man, as a semi-truck driver on July 2,
2012. Oliver’s employment was governed by the Collective Bargaining Agreement (“CBA”)
entered into by JMLI and the International Brotherhood of Teamsters Local Union No. 371. The
two bargaining units to which JMLI employees belong, identified as “seniority units” included 1)
Motor Vehicle Repair Employees – Mechanic, Mechanic Helper, Battery Servicer and 2) Motor
Vehicle Operation Employees – Truck Driver (T/T), truck driver (heavy), shipping/receiving
clerk, tractor operator/vehicle cleaner. Seniority under the CBA accrues only within the specific
seniority unit in which the employee works. CBA 7.1, Mot. Summ. J. Ex. B, ECF No. 28-3 at
40. At all relevant times, the CBA contained provisions by which employees subject to a
1

Facts are taken from the parties’ Undisputed Material Facts Sections. Mot. Summ. J., ECF No. 28; Am.
Resistance, ECF No. 33-1. Disputed facts and those not included in the parties’ undisputed fact sections are cited
directly from the record.

1

reduction in force (identified in the CBA as a “reduced employee”) could displace—or,
colloquially, “bump”—less senior employees, or fill in an existing position within the same
seniority unit. CBA 7.3. Bumping was only allowed when the reduced employee was deemed
“qualified as determined by the company,” and no reduced employee was entitled to bump an
employee outside of his seniority unit. Id.
Oliver’s initial position was within the Motor Vehicle Operation Employees
(“Transportation”) unit. On September 30, 2013, Oliver was laid off. Oliver filed a grievance
because he felt that JMLI did not provide the two weeks’ notice of the layoff required by the
CBA. He lost this grievance in arbitration. Oliver stated that he was chosen for the layoff in
2013, because he was “lowest as far as seniority.” Pl.’s Dep. Dep. 58:23–24, Mot. Summ. J. Ex.
C, ECF No. 28-4.
On January 17, 2014, Tyler Farr, a white employee in the position of tractor
operator/vehicle cleaner, was terminated. Farr grieved the termination, but in the meantime,
Oliver was recalled by JMLI to work in Farr’s position—still in the Transportation Unit—
beginning February 3, 2014. While working in Farr’s position, Oliver sustained an injury when a
piece of machinery rolled over his ankle. Rocky Vance, a white male, was hired as a temporary
employee in April 2014, to replace Oliver while he was out due to his injury.
Oliver was released back to work in the same position on July 7, 2014, and he returned to
work on July 9, 2014. On July 8, 2014, JMLI, via project manager Scott Schneider, offered
Vance a mechanic position that required five years of experience. Oliver filed a grievance
because the position was not publicly listed. The grievance was upheld, and Schneider notified
Vance that the offer was rescinded. JMLI posted the position publicly on July 15, 2014, and
both Oliver and Vance applied. Neither employee had seniority for the position because both

2

were members of the Transportation Unit and the mechanic position was in the other seniority
unit. The application required submission of a resume and a questionnaire administered by
Schneider. Oliver had never been employed as a mechanic prior to applying for the position.
The parties dispute whether Oliver’s resume indicated that he had mechanic experience. On
September 8, 2014, Schneider hired Vance to the position. JMLI informed Oliver around that
time that he was not qualified for the position. Pl.’s Dep. 103:25–104:6. Schneider stated that in
his deposition he was unable to verify that Oliver had five years of mechanic experience. Oliver
filed a grievance in regard to Vance’s hiring on September 10, 2014.
At some point after Vance’s promotion to mechanic, Oliver alleges that Vance called him
a “thief” and a “f**king n***er” when he picked up a set of keys off of Vance’s work station at
the behest of his supervisor.
After an arbitrator concluded in August 2014, that Farr was wrongly terminated, JMLI
was ordered to reinstate him to his previous position. Farr bumped Oliver because Farr had
seniority over him. The parties dispute whether it was necessary to bump Oliver: JMLI stated
that it had “no choice” Def.’s UMF ¶ 15, because it needed to reduce staffing, id. at ¶ 20, while
Oliver argues that the retirement of another employee in the unit left a position open that Oliver
could have filled. Pl.’s UMF ¶ 15.
Oliver filed a charge with the Equal Employment Opportunity Commission (“EEOC”) on
August 25, 2014, alleging discrimination and retaliation based on race, color, and disability. The
charge included allegations that Vance was wrongly promoted over Oliver, that the test for the
mechanic position was racially biased, and that he endured a hostile work environment; the
charge included that Vance had “yelled” at Oliver but not that he had used racial insults. EEOC
Charge, ECF No. 28-4 at 99.

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Oliver was laid off from September 2014 until he received a recall notice in June 2015, to
work temporary duty as a semi-truck driver while the regular driver was off on disability leave.
Oliver physically returned to work in August 2015. He worked until he was laid off on
September 29, 2015, when the regular driver returned from disability leave without advance
notice to JMLI. In November 2015, Oliver was recalled to work as a battery servicer. As of
Oliver’s last filings with the Court, on May 18, 2016, he remained employed as a truck driver.
Pl.’s UMF ¶ 30.
Two other temporary mechanics were hired after Vance at some point in fall 2014:
Patrick Paige, a white male with eight or nine years of experience as a mechanic in the Marine
Corps, and Medgar Harris, who is black and had at least some experience as a mechanic. Rocky
Vance was terminated in January 2015, after violating company policy several times.
DISCUSSION
I.

Legal Standard on a Motion for Summary Judgment
At the summary judgment stage the court’s function is not “to weigh the evidence and

determine the truth of the matter, but to determine whether there is a genuine issue for trial[—
that is, whether] there is sufficient evidence favoring the non-moving party for a jury to return a
verdict” in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); see Patel v.
Allstate Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997). The court must view the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing Anderson,
477 U.S. at 255).
II.

42 U.S.C. § 1981 Discrimination Claim
Oliver contends that JMLI discriminated against him on the basis of race when it chose to

hire a white mechanic instead of him, and argues that JMLI engaged in “disparate treatment”
4

when it allowed white truck drivers without certain qualifications to stay on the job when Oliver
was laid off. Am. Resistance 1–2; 15.
a. Legal Standard For Discrimination Claims Arising Under 42 U.S.C. § 1981
Section 1981 “protects the right of all persons ‘to make and enforce contracts’ regardless
of race,” Carter v. Chicago State Univ., 778 F.3d 651, 657 (7th Cir. 2015) (quoting 42 U.S.C. §
1981(a)). To prevail on a Section 1981 claim, the plaintiff must prove that he has been the
victim of intentional discrimination, Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 669 (7th Cir.
1996), and may utilize the Title VII’s methods of proof. Humphries v. CBOCS West, Inc., 474
F.3d 387, 403–04 (7th Cir. 2007). At the summary judgment phase, the plaintiff must either
provide a sufficient basis for a reasonable factfinder to conclude that the evidence, as a whole,
indicates that the plaintiff’s race “caused the discharge or other adverse employment action,”
Ortiz v. Werner Enter., 834 F.3d 760, 765 (7th Cir. 2016), or employ the burden shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973), id. at 766.
The Seventh Circuit has developed unique burden-shifting tests (detailed below) to fit the
circumstances of various types of claims—whether based on failure to promote, layoff, or other
adverse employment action. If the plaintiff is able to establish a prima facie case, thereby raising
an inference of discrimination, the burden shifts to the employer to offer a non-discriminatory
reason for the adverse employment action. Everroad v. Scott Truck Systems, Inc., 604 F.3d 471,
477 (7th Cir. 2010). If the employer provides one, the burden shifts back to the plaintiff to show
that the given reason is pretextual. Id.
b. Oliver’s Claim of Discrimination
i. Failure To Hire Oliver Into Mechanic Position

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Oliver relies on the McDonnell Douglas burden-shifting framework to prove
discrimination.2 Oliver argues that he should have been placed in the mechanic position before
Vance because he was both more senior and more qualified. Am. Resistance 14. Oliver further
argues that after Vance was terminated for poor performance in January 2015, he should have
been able to fill the resultant open mechanic position. Id. at 17.
To make out a prima facie case of discrimination for JMLI’s failure to place him in the
mechanic job, Oliver must show that “(1) [he] is a member of a protected class; (2) [he] is
qualified for the position; (3) [he] was rejected for the position sought; and (4) the position was
granted to a person outside the protected class who is similarly or less qualified.” Jordan v. City
of Gary, Ind., 396 F.3d 825, 833 (7th Cir. 2005). The first and third prongs are not contested:
Oliver is black, and was rejected from the mechanic position. The parties dispute prongs two
and four: JMLI argues that Oliver was not hired because he was not qualified for the position,
and therefore not more qualified than Vance, leaving him unable to make a prima facie case.
Def.’s Mot. Summ. J. 18–19. Even if the Court could find Oliver has presented sufficient
evidence that he was equal to or more qualified than Vance, Oliver has not presented any
evidence to suggest that JMLI's reason for not hiring him was untrue. See Keeton v.
Morningstar, 667 F.3d 877, 885 (7th Cir. 2012) (authorizing courts to skip over the initial burden
shifting portion of the McDonnell Douglas test to focus on the lack of pretextual evidence).

2

First, Oliver puts forth no legal argument of his own in his Resistance to JMLI’s motion, so the Court assumes that
he intends to adopt and respond to JMLI’s use of the McDonnell Douglas framework. Second, Oliver puts forth that
at some point, Rocky Vance accused Oliver of stealing and called him a “f**king n***er.” Oliver Dep 138: 3–6.
Pl.’s Ans. Interrog., ECF No. 28-4 at 83. Use of racial epithets can be compelling evidence of bias, but when
comments are made by subordinates, like Vance, rather than by decisionmakers, like Schneider, they are not
probative of the employer’s discriminatory intent. See Harris v. Warrick Cnty. Sheriff’s Dep’t., 666 F.3d 444, 448
(7th Cir. 2012). Oliver has not raised a “cat’s paw” theory or a claim of hostile work environment, by which a
failure of the supervisors to address racial harassment could constitute discrimination; even if he had, the Seventh
Circuit holds that though the use of such a racially charged word in any context is deplorable, an isolated incident
like the one Oliver describes would not sufficiently sustain a claim. Dandy v. United Parcel Serv., Inc., 388 F.3d
263, 271 (7th Cir. 2004).

6

Assuming Oliver has established a prima facie case, the burden shifts back to JMLI to
offer a non-discriminatory explanation of its decision not to hire Oliver into the mechanic
position. Everroad, 604 F.3d at 477. JMLI maintains that Oliver was not as qualified as Vance
based on the information the two applicants provided through the application process. Mot.
Summ. J. 18–19. The CBA’s seniority provisions were not applicable to Vance or Oliver when
they were considered for the mechanic position,3 so under the applicable provisions of the
agreement, hiring for the mechanic position centered on which of the two men was more
qualified for the position. CBA 7.4(c). The mechanic position required five years’ experience as
a mechanic, in addition to the ability to speak English, the ability to lift forty pounds, an ASE
certification or ability to obtain it, training in the use of SAMS-1-E (Standard Army Maintenance
System), and the ability to obtain secret clearance if necessary. Schneider Dep. 57:19–58: 14,
Mot. Summ. J. Ex. D, ECF No. 28-5.
When an employer relies on subjective reasons for not hiring an applicant, it meets its
burden for showing the legitimacy of its decision when it can provide “reasonably specific facts
that explain how it formed its opinion of the applicant.” U.S. E.E.O.C. v. Target Corp., 460 F.3d
946, 957 (7th Cir. 2006). Schneider pointed specifically to the lack of experience evidenced by
Oliver’s application materials. Schneider Dep. 85:5–16. A noticeable difference existed
between Vance’s resume, which listed considerable mechanic experience, and Oliver’s, which
did not. Oliver acknowledged that he had never applied for a job as a mechanic aside from the
one in July 2014, and had only been “self-employed” as a mechanic. Pl.’s Dep. 42:19–25. He
conceded that his resume did not reflect any experience as a mechanic other than less than a year
3

Oliver suggests that JMLI’s “fail[ure] to use the seniority system,” Am. Resistance 15, by selecting Vance for the
job constituted race discrimination, but this does not comport with the CBA hiring procedures: the CBA explains
that seniority accrues only within one’s own unit, and seniority only enters into the calculus when the applicant
already has seniority “in the unit where the position exists.” CBA 7.1(a); 7.4(c). The mechanic position was in the
Motor Vehicle Repair Unit, not the Transportation Unit, where both Vance and Oliver worked.

7

of working as an “owner-operator.” Pl.’s Dep 86:20–87:6. Otherwise, Oliver’s resume
contained very little evidence of mechanical ability (for instance, one line item stating that he
could “repair minor vehicle operation problems.” Oliver Resume, Am. Resistance Ex. 37, ECF
No. 30-5). Vance’s resume, meanwhile, clearly indicated mechanical experience at his past jobs
dating back to at least 2010. Vance Resume, Mot. Summ. J. Ex. B, ECF No. 28-3 at 76.
Schneider’s questionnaire contained twenty questions about mechanical work, including
questions about how to maintain certain equipment, safety protocol, and how to handle various
mechanical failures. See Pl.’s Questionnaire, ECF No. 28-4 at 78. Schneider testified that he
considered Oliver’s claim to having thirty years’ experience4 in his deliberations but said that
based on the resume and questionnaire he could not “verify” Oliver’s experience as a mechanic.
Schneider Dep. 58:19–25. In the course of litigation, both Oliver and Howard Spoon, the former
union president and business agent for JMLI, testified that Oliver had experience as a
mechanic—Spoon testified to Oliver’s skill at flipping cars, Spoon Dep. 22–23, Mot. Summ. J.
Ex. B, ECF No. 28-3, and Oliver described experience repairing forklift trucks and semi-trucks
like those operated by JMLI. Pl.’s Dep. 91–92; however, Oliver stated that he never apprised
Schneider of his experience servicing his own semi-truck or doing other types of relevant work
because “[y]our work shows for itself.” Pl.’s Dep. 91:17–20.
Though Oliver presents considerable evidence that Vance later proved himself
incompetent as a mechanic, that information does not implicate anything about the information
available to Schneider at the only relevant time period: the time he made the hiring decision.
Target, 460 F.3d at 960 (holding that only evidence of information available to the employer at
the time it made its decision is relevant). Oliver may, in fact, be a competent mechanic, but the

4

The information Oliver provided on Schneider’s questionnaire included the statement “I can fix any car, truck, fork
truck for over 30 yrs. You name it I can fix it.” See Pl.’s Questionnaire, Mot. Summ. J. Ex. C, ECF No. 28-4 at 78.

8

record does not show that he fully communicated his qualifications to JMLI. See Millbrook v.
IBP, Inc., 280 F.3d 1169, 1181 (7th Cir. 2002) (holding that “a plaintiff’s own opinions about her
work performance or qualifications do not sufficiently cast doubt on the legitimacy of her
employer’s proffered reasons for its employment actions.”). JMLI has presented a legitimate
business reason—Oliver’s ostensible lack of experience—for its choice not to hire him into the
mechanic position.
Since JMLI has provided a legitimate business reason for its decision, the burden shifts
back to Oliver to show that the stated reason is pretextual. Oliver “cannot raise a genuine issue if
the evidence shows only that the employer made a wrong assessment of the applicant.” Target,
460 F.3d at 960. He “must present evidence that supports an inference that the employer was
intentionally dishonest when it gave its nondiscriminatory reason for rejecting the applicant.” Id.
Oliver has failed to present any evidence that JMLI’s legitimate business reason was pretext for
discrimination.5
Oliver also claims he should have been promoted to other mechanic positions within the
company. Am. Resistance 17. On September 30, 2014, JMLI listed two temporary mechanic
positions with the same requirements as the permanent position to which Oliver had already
applied. Oliver did not apply to the positions because he was not aware of them, but argues that
the company should have notified him of their existence. Yet JMLI had already concluded and
notified Oliver that he was unqualified to serve as a mechanic, and he took no steps to inform the
company otherwise. JMLI then changed one of the temporary positions into a permanent
5

At one point, Oliver linked his perceived poor treatment to his injury on the job in February 2014. Pl.’s Dep.
159:7–10 (“Ever since I came back from my torn Achilles I have been demoted in pay. I have been written up. I
have been told what I ain’t been doin’, what I have been doin’.”). Oliver claims to have been “written up” for
various mistakes he made while working, Pl.’s Dep. 158:4–11; however, no evidence of disciplinary infractions has
been presented to the Court by Oliver or any other witness. Schneider Dep. 72:7–9 (Q: “In fact, he has never been
disciplined for his work performance, has he?” A: “I do not believe so. He’s a good employee.”) Unlike his
erstwhile comparator, Vance, who was fired after repeated failure to follow workplace policy, Oliver remains
employed by JMLI.

9

position by transitioning Medgar Harris, a black mechanic, from temporary to full time. Oliver
cannot use Harris as a comparator—Harris is black, and Oliver may not make out a prima facie
case of race discrimination by pointing to a person in his same protected class. See Riley v.
Elkhart Community Schools, 829 F.3d 886, 892 (7th Cir. 2016).
ii. Layoff from Truck Driver Positions
Oliver contends that JMLI discriminated against him when it laid him off from his truck
driving position at various times between 2013 and 2015, despite the fact that he held
certifications not held by white drivers who remained employed. Am. Resistance 15.6
In the case of a reduction in force (“RIF”) involving layoffs, the plaintiff carries his prima
facie burden when he can show, in addition to being (1) a member of a protected class and (2)
qualified for the position, that he was (3) discharged and (4) that similarly situated employees not
in the plaintiff’s protected class were treated more favorably. Bellaver v. Quanex Corp., 200
F.3d 485, 494 (7th Cir. 2000). There is no dispute that Oliver was laid off despite being
qualified to work as a driver, and despite the fact that white employees stayed on the job. JMLI
argues that all layoff and hiring was done in accordance with the CBA, that none of the
comparators to whom Oliver points were similarly situated, and that, in any case, white
employees were not systematically better treated than black employees. Mot. Summ. J. 15–16;
18.
In order to establish that another employee was similarly situated, the plaintiff must
show that he and the comparator were alike “‘in all material respects’ so as ‘to suggest that [the

6

Oliver also named Rodney Paysen as a comparator because he alleged that Paysen made more money than he did
in the same job as a tractor-trailer driver. Pl.’s Dep. 147:5. Oliver has not alleged or argued what type of adverse
employment action he was subject to in comparison to Paysen: Paysen, a white male, was not only senior to Oliver,
but Oliver’s testimony also indicates that Paysen quit precisely because he was asked to pay back the money that he
was overpaid. Id. at 147:21. There are no facts to support the assertion that Paysen was treated more favorably than
Oliver.

10

plaintiff] was singled out for worse treatment.’” Tyson v. Gannett Co., 538 F.3d 781, 783 (7th
Cir. 2008) (quoting Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)). When seniority status
affects job assignment under a collective bargaining agreement, employees who have different
seniority status are not similarly situated. Tyson, 538 F.3d at 783 (citing Filar v. Bd. of Educ. of
City of Chicago, 526 F.3d 1054, 1062 (7th Cir. 2008) (“To the extent that seniority is a simple
proxy for something like the length of employment and is something that an employer must
credit when making employment decisions, differences in seniority will tend to make two
employees dissimilar for purposes of the plaintiff’s prima facie case.”)).
JMLI’s adherence to a bona fide seniority system, by which a collective bargaining
agreement made seniority the “determining factor in job assignment,” disallows Oliver from
claiming that employees who had seniority—here, DeRoo, Clark,7 Paysen, and Gunner—were
similarly situated. Tyson, 538 F.3d at 783. Section 7.3 of the CBA addresses the Layoff and
Recall procedures that govern when JMLI chooses to reduce employees. CBA 7.3. At all
relevant times, layoffs under the CBA were governed only by seniority; it was only after a
reduced employee attempted to exercise his right to bump a less senior employee that the
qualifications of the reduced employee—not the less senior employee he attempted to bump—
became relevant. Id. (CBA 7.3(d) states that no reduced employee can bump a less senior
employee “if the Company determines that the displacing employee is not qualified to perform
the work required.”) Schneider concurred that the CBA did not allow JMLI to consider “skills or
performance” as criteria for layoff; he understood the CBA only to allow for consideration of
seniority in a layoff scenario. Schneider Dep. 92:4–22.

7

Clark is also black. He was misidentified in the Complaint as white. Compl. ¶ 13a. Oliver argues elsewhere that
Tim Clark was treated preferentially on the basis of his darker skin. The Court finds that since Clark was not
similarly situated to plaintiff on the basis of seniority, it need not address the complex question of discrimination on
the basis of color.

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Because of the CBA’s layoff provisions, Oliver would be similarly situated only to those
employees who were of equal or lesser seniority. He presents no evidence of such a comparator.
Oliver’s stated belief that DeRoo and Clark “should have got laid off until they received their[]
[certifications],” Pl.’s Dep 144:22-23, does not comport with the way the CBA functioned.
Though Oliver alleges that neither DeRoo nor Clark had a Class A driver’s license and a hazmat
certification, and that Gunner lacked his hazmat certification, Oliver concedes that each of these
employees had seniority over him. Pl.’s Dep. 145:4–5; 146:6–16. Oliver admitted that he never
filed a grievance against DeRoo or Clark precisely because they had more seniority than he did.
Pl.’s Dep. 144:24–145:5. Oliver has not successfully presented evidence from which a
reasonable factfinder could infer racial discrimination on the basis of his layoff from the truck
driver position.
Oliver also identified as an adverse employment action JMLI’s failure to re-hire him
from layoff when another truck driver retired in January 2014. Am. Resistance 16. A failure to
hire claim requires a plaintiff to present evidence:
that he belongs to a racial minority; (ii) that he applied and was qualified for a job
for which the employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant’s qualifications.
McDonnell Douglas, 411 U.S. at 802. 8
JMLI argues that even if Oliver could establish a prima facie case, it made a legitimate
business decision to cut the number of drivers. Mot. Summ. J. 21. Oliver alleges that neither he
nor Spoon observed a change in the amount of work for truck drivers, Am. Resistance 17, but

8

No official application is needed in cases where an employer fills a position through an informal discretionary
selection process. All that’s required is the employer’s awareness of the employee’s interest. See Simple v.
Walgreen Co., 511 F.3d 668, 670–71 (7th Cir. 2007).

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even if that were true, JMLI still maintained full control of its staffing decisions.9 At all relevant
times, that position remained unfilled, and Oliver reported in his last filing with the Court, on
June 1, 2016, that he was once again working as a truck driver at JMLI. Pl.’s UMF ¶ 30.
It is uncontested that Oliver had less seniority than the other drivers who were retained by
JMLI. Even taken in the light most favorable to Oliver, the facts indicate that JMLI operated
within the bounds of its bona fide seniority system in selecting Oliver for layoff, and in
maintaining the staffing levels as management deemed fit. Oliver has not presented sufficient
evidence from which a reasonable juror could infer JMLI intended to discriminate when it failed
to promote or recall Oliver or executed layoffs.
III.

42 U.S.C. § 1981 Retaliation Claim
Oliver alleges that JMLI retaliated against him by not hiring him into one of the two

temporary mechanic positions or the full-time mechanic position that became available after he
filed a race discrimination claim with the EEOC on August 25, 2014. The two temporary
mechanic positions that opened on September 30, 2014 were filled by Medgar Harris and Patrick
Paige. Harris filled the permanent mechanic position that opened after Vance’s termination in
January 2015.
a. Legal Standard for Retaliation Claim Under 42 U.S.C. § 1981
In CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008), the Supreme Court held
that § 1981 authorizes a retaliation claim when action is taken against someone who has asserted
his rights protected by § 1981. “In the context of laws governing employment rights, ‘unlawful
retaliation occurs when an employer takes an adverse employment action against an employee

9

Under the CBA, staffing decisions were within the control of the company, and Oliver had no standing to force
JMLI to maintain a position. Spoon Dep. 44:4–10 (“There’s nothing in the collective bargaining agreement that
directs any number of employees in any department has to be maintained. . . [T]he company would have the right to
not call people back and run short . . . . That’s part of management’s rights.”).

13

for opposing impermissible discrimination.’” Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012)
overruled on other grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016)
(quoting Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003)).
In order to prove a retaliation claim on the basis of failure to hire, the plaintiff must show
(1) that he engaged in a statutorily protected activity, (2) that he suffered an adverse action, and
(3) that there is a causal link between the two. Lord v. High Voltage Software, Inc., 839 F.3d
556, 563 (7th Cir. 2016). The central question is whether the record contains sufficient evidence
to conclude that the retaliatory motive caused the discharge. Id. at 563 (citing Ortiz, 834 F.3d at
765). A plaintiff alleging that the employer’s failure to hire him was due to retaliation must
show that he: “(1) ... engaged in a statutorily protected activity; (2) ... applied and had the
technical qualifications required for the ... position; (3) ... was not hired for the position; and (4)
a similarly situated individual who did not [engage in statutorily protected activity] was hired for
the position.” Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016)
(quoting Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 812 (7th Cir. 2005)).
b. Analysis
Oliver’s EEOC charge of racial discrimination is statutorily protected activity. To meet
the remainder of his prima facie burden, Oliver must show that an adverse employment action
taken by JMLI was causally related to Oliver’s filing of the charge.
Oliver cannot establish that he experienced an adverse action of the type that “could well
dissuade a reasonable worker from making or supporting a charge of discrimination.” Shott v.
Katz, 829 F.3d 494, 497 (7th Cir. 2016). The temporary positions were posted. Temp. Mechanic
Listing, ECF No. 30-6. Oliver never applied for the temporary positions, or otherwise advised
JMLI of his interest, and therefore cannot establish a prima facie case on the basis of rejection.

14

Volling, 840 F.3d at 383. Though Oliver felt that he should have had priority consideration for
the temporary positions, the CBA did not require that JMLI recall laid off employees to fill them.
CBA 7.4(a) (providing that temporary vacancy “may be filled at the Company’s discretion
without regard to seniority or bargaining unit restrictions”). The same is true for the full-time
mechanic position: Oliver did not apply to fill it, and regardless, JMLI did not have reason to
believe that Oliver was qualified to fill it. Id.; see CBA 7.4(b) (once it deemed him unqualified,
JMLI had no duty to recall him to the position: “All regular, full-time bargaining unit positions
will first be filled by recalling qualified employees on layoff . . .”) (emphasis added). No
reasonable factfinder could conclude that failing to recall an unqualified employee, to a position
for which he never applied and had no right to, would dissuade a reasonable worker from
opposing impermissible discrimination.
Because Oliver did not apply for the later mechanic positions and, regardless, had already
been deemed unqualified because of his initial application, he has not presented sufficient
evidence for a finder of fact to conclude that he was retaliated against because he exercised his
statutorily protected right to file a claim of race discrimination with the EEOC.
CONCLUSION
Defendant’s Motion for Summary Judgment, ECF No. 28, is GRANTED. Defendant’s
Motion for Hearing, ECF No. 29, is DENIED. The Clerk is directed to enter judgment and close
the case.
Entered February 24, 2017.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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