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Seventh Circuit reverses Rosenstengel in reverse discrimination case

By Record News | Mar 1, 2016


CHICAGO – Crane oiler Terry Deets deserves a trial on his claim that his skin color cost him a job on the Stan Musial Bridge project, Seventh Circuit appellate judges ruled last month.

They rebuked and reversed District Judge Nancy Rosenstengel of East St. Louis, who granted summary judgment against Deets.

The judges identified four pieces of evidence that should have allowed Rosenstengel to conclude that discrimination lay behind the adverse action against Deets.

In 2012, Deets’s union referred him to a joint venture of three companies holding the contract to build the bridge.

On May 9, 2012, the joint venture hired him to fuel, oil and grease a Manitowoc 2250 crane.

The joint venture laid him off on May 17, and recalled him on May 29.

On June 20, the joint venture transferred him to a Liebherr crane.

The Liebherr crane began to run out of material in July, and project superintendent John Todt expected that he would shut it down.

On July 5, at Todt’s request, Deets agreed to work on a Tower crane for two weeks while its oiler took a vacation.

On July 17, a day before the Tower oiler would return, Todt told Deets he would be laid off at the end of the day.

According to Deets, Todt said, “My minority numbers aren’t right. I’m supposed to have 13 point nine percent minorities on this job and I’ve only got eight percent.”

According to Deets, pier superintendent Jim Rogier told him he was “sorry to hear about this minority thing.”

On July 18, Todt hired a minority person to work on the Liebherr crane.

After his layoff, Deets rotated through short term assignments until the joint venture terminated him in December 2012.

In 2013, Deets sued Massman Construction, Alberici Constructors, Traylor Brothers Inc., and their joint venture, MTA.

His lawyer, Uchenna Asonye of Chicago, wrote that they laid him off “for no other reason than to create a position for an individual based on their minority status.”

He sought lost wages, back pay, front pay, lost benefits, compensatory damages and punitive damages.

Todt denied telling Deets that minority numbers were the reason for his layoff.

Todt said Deets could not claim seniority on the Liebherr crane because it was out of service more than a week.

In June 2014, Rosenstengel set trial for the following February.

Defendants moved for summary judgment in September 2014, claiming Deets offered no evidence of intentional discrimination.

They argued that even if Todt mentioned minority numbers, his statement related to the hiring of a minority oiler rather than the firing of Deets.

Rosenstengel agreed, and she granted summary judgment in January 2015.

In order to accept Deets’s view, “we must assume that Todt is referring to Deets’s termination and not to the practicality of his hiring,” she wrote.

“In fact, Todt’s statement would be entirely consistent with a response to Deets’s concern about further work.

“Rogier’s statement is no different. His alleged apology about the ‘minority issue’ requires assumption for the same reason.”

She wrote that the context and timing of the statements precisely illustrated that they were aimed at hiring and not at Deets’s termination, and that the decision to hire a minority oiler was made before the decision to terminate Deets.

“Any reference to ‘minority numbers’ with respect to a hiring decision would in no way be suspicious, given MTA’s affirmative action obligations,” she wrote.

“If MTA’s minority numbers were in fact low, a minority worker had to be requested from the union to fill any needed positions.

“As such, the probability for Deets being rehired was low.”

She wrote that sporadic employment is normal in construction.

Seventh Circuit judges ripped Rosentsengel’s decision to shreds.

Justice Ann Williams wrote, “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,” Williams wrote.

“It is possible that a jury would credit Todt’s denial that he ever made that statement, but that credibility determination may not be resolved at summary judgment.

“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.”

She wrote that Deets lost seniority on the Liebherr machine before 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,” Williams wrote.

She wrote that Deets assembled sufficient evidence of discrimination; there were the alleged statements of Todt and Rogier; Todt knew MTA had been out of compliance with its minority goals for three weeks; and MTA hired a minority worker a 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,” Williams wrote.

Chief Justice Diane Wood and Justice Richard Posner concurred.

Rosenstengel received the Seventh Circuit’s mandate on Feb. 25, and she set a status conference on March 14.

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