Karl Harris v. YRC Worldwide Inc. ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 1, 2020
Decided July 9, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY C. BARRETT, Circuit Judge
Nos. 19-1721 & 19-3255 Appeals from the United
States District Court for the
KARL HARRIS, et al.,
Northern District of Illinois,
Plaintiffs-Appellants,
Eastern Division.
v.
Nos. 14 C 1500 & 14 C 8758
YRC WORLDWIDE, INC., Susan E. Cox,
Defendant-Appellee. Magistrate Judge.
Order
Eddie Williams, Jr.; Karl Harris; Thomas Jackson; and Derrick Rias are four of the
many plaintiffs in this employment-discrimination litigation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–16. A magistrate judge, serving by con-
sent under 28 U.S.C. §636(c), granted summary judgment to the employer, McDade v.
YRC Worldwide, Inc., 2017 U.S. Dist. LEXIS 147813 (N.D. Ill. Sept. 13, 2017), and these four
plaintiffs appealed without waiting for the final resolution of the claims by all other
plaintiffs. The oral argument of that appeal in February 2018 covered the merits, but we
dismissed it for want of appellate jurisdiction. Williams v. YRC Worldwide, Inc., No. 17-
Nos. 19-1721 & 19-3255 Page 2
3122 (7th Cir. Feb. 22, 2018). The other plaintiffs’ claims were finally resolved, and these
four took a second appeal (No. 19-1721). Once the district court entered a final judg-
ment, they appealed for a third time (No. 19-3255). Because we have heard oral argu-
ment on the merits, a second argument is unnecessary, and we resolve these follow-up
appeals on the briefs and record.
Appellants, all African-American, were (and three apparently still are) “combo”
truck drivers for YRC—that is, workers who load the trucks, drive them, and unload
them at their destinations. The gist of their claim is that suburban routes are more desir-
able than urban routes but that YRC, bypassing seniority rules under a collective bar-
gaining agreement, assigned suburban routes to white drivers more frequently than it
would have done if race had been ignored. Appellants do not tell us how often this oc-
curred; the record does not contain quantitative evidence. They do not contend that
route assignments affect wages or the probability of promotion. They assert generally
that driving on urban streets is more likely to cause accidents that could lead to disci-
pline, but only one of them (Rias) was disciplined after an accident. He was fired but
does not contend in this suit that his discharge was discriminatory.
The magistrate judge concluded that three of the four appellants had not provided
any concrete facts that would permit a trier of fact to find that urban routes are worse in
any material way than suburban routes. The judge therefore concluded that they had
not raised a prima facie claim of discrimination. Rias, by contrast, created such a claim by
testifying that someone once pulled a gun on him when he was delivering an urban
load. YRC then explained its assignment practices, which shifted back to Rias the bur-
den of showing that the explanation was a pretext for discrimination. See, e.g., St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). But, the magistrate judge observed, Ri-
as and the other appellants ignored the subject and “failed to present any argument at
all on the issue of pretext.” 2017 U.S. Dist. LEXIS 147813 at *24. Appellants’ brief con-
tends that this is wrong but does not cite any place where a pretext argument was made
in the district court. Instead they make generic observations (Br. 37–38), such as that
YRC’s dispatchers assign routes. They do not explain how this shows that YRC’s expla-
nation of the criteria by which dispatchers do this is a pretext for discrimination. Appel-
lants have not met their burden under Title VII.
Just as appellants did not try to show concretely how urban routes provided them
with inferior working conditions, they did not try to analyze the assignments to see
how often YRC followed seniority and how often it did not. Each appellant testified to
one or more departures from the seniority rules, but unless YRC departed more often to
the detriment of black workers than to the detriment of white workers, the departures
were not discriminatory. Discrimination under Title VII means a difference in treatment
Nos. 19-1721 & 19-3255 Page 3
for a prohibited reason. Yet appellants did not present evidence about how similarly
situated white workers fared in this respect.
We have our doubts about whether seniority plays any proper role in this suit. Sen-
iority comes from a collective bargaining agreement between YRC and Teamsters Local
179. Appellants do not say that they ever complained to their union about YRC’s assert-
ed departures from seniority and do not contend that the union has engaged in racial
discrimination in enforcing the agreement. Yet to protest a departure from a collective
bargaining agreement a worker must exhaust the agreement’s remedies and then bring
a hybrid contract and duty of fair representation action jointly against the union and the
employer. See, e.g., Bennett v. Glass, Molders, Pottery & Plastics Union, 958 F.2d 1429 (7th
Cir. 1992). Local 179 is not a party and, to repeat, appellants do not accuse it of discrim-
ination. This does not mean that they are forbidden to show that their route assign-
ments were discriminatory, but it does disable them from contending that the assign-
ments violated the seniority provisions of the collective bargaining agreement.
In addition to complaining about route assignments, appellants contend that they
experienced a racially hostile environment. The record does not bear this out. For ex-
ample, Williams testified that he never heard any offensive language directed toward
black drivers, though he once heard a slur about a Hispanic driver. 2017 U.S. Dist. LEXIS
147813 at *6. Harris testified that he heard bad language “all the time” but was not of-
fended by it. Id. at *8. Jackson testified that he was called “homeboy” by a white driver
“on a couple of occasions” but did not report this to a supervisor and did not report
hearing any offensive language from supervisors. Id. at *11. Rias reported two slurs by
white drivers against Hispanics and two against him, over the course of a years-long
career. Rias is the only appellant to attribute a statement to a supervisor. He says that
one once asked him “what’s the deal with chicken and waffles?” Id. at *12–13. These
statements, individually and collectively, do not amount to the sort of serious or perva-
sive comments that violate Title VII, as the Supreme Court understands it. See, e.g., On-
cale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
The magistrate judge’s thorough opinion explores appellants’ claims in more detail.
We substantially agree with that analysis, which is consistent with what we have said
above.
AFFIRMED