Judges: Per Curiam
Filed: Mar. 05, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 February 18, 2009* Decided March 5, 2009 Before WILLIAM J. BAUER, Circuit Judge KENNETH F. RIPPLE, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 08-2919 ROBERT DINKINS and KENNETH Appeal from the United States District SANDERS, Court for the Central District of Illinois. Plaintiffs-Appellants, No. 2:06-cv-02052-HAB-DGB v
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 February 18, 2009* Decided March 5, 2009 Before WILLIAM J. BAUER, Circuit Judge KENNETH F. RIPPLE, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 08-2919 ROBERT DINKINS and KENNETH Appeal from the United States District SANDERS, Court for the Central District of Illinois. Plaintiffs-Appellants, No. 2:06-cv-02052-HAB-DGB v...
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NONPRECEDENTIAL DISPOSITION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 February 18, 2009*
Decided March 5, 2009
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08‐2919
ROBERT DINKINS and KENNETH Appeal from the United States District
SANDERS, Court for the Central District of Illinois.
Plaintiffs‐Appellants, No. 2:06‐cv‐02052‐HAB‐DGB
v. Harold A. Baker,
Judge.
BUNGE MILLING, INC., et al.,
Defendants‐Appellees.
O R D E R
Robert Dinkins and Kenneth Sanders, who are both African American, sued their
union for racial discrimination and their employer, Bunge Milling, Inc., for racial
discrimination and retaliation. See 42 U.S.C. § 2000e to 2000e‐17; 42 U.S.C. § 1981. The
district court dismissed Mr. Sanders’ retaliation claim against Bunge and granted summary
judgment to the defendants on the remaining claims. We affirm.
*
After examining the briefs and the records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
No. 08-2919 Page 2
Mr. Dinkins and Mr. Sanders, unskilled workers with checkered disciplinary and
performance histories, claim they were denied promotions and access to an apprenticeship
program because of their race. They both applied for promotion to skilled positions; white
applicants were chosen instead. Mr. Dinkins also sought entry to an apprenticeship
program for which a top‐third score on the Flanagan Industrial Test, a written exam
administered by a local community college, was a prerequisite. Mr. Dinkins’ middle‐third
score disqualified him; two white applicants who scored in the top third were ultimately
selected.
Mr. Dinkins and Mr. Sanders also allege that they were unfairly disciplined on
account of their race: each was frequently cited for violating plant rules, and they were both
censured for under‐loading a rail car (Mr. Dinkins, who yelled at a supervisor who
reprimanded him, was suspended without pay for 15 days; Mr. Sanders received a written
warning). They believe that white employees would not have been disciplined for similar
conduct and claim that the rail‐car sanctions were retaliation for testifying at a former co‐
worker’s unemployment hearing about discrimination he had faced. Finally, they assert
that racist union leaders refused to pursue their grievances against the company.
Mr. Dinkins and Mr. Sanders initially grounded their action in Title VII of the Civil
Rights Act of 1964, see 42 U.S.C. § 2000e to 2000e‐17, but amended their complaint, hoping
to proceed under 42 U.S.C. § 1981 as well. The district court, however, confined its
consideration to the plaintiffs’ Title VII claims. The court dismissed all claims against the
union on the ground that the plaintiffs failed first to file Equal Employment Opportunity
Commission charges; for the same reason the court dismissed Mr. Sanders’ claims against
Bunge (however, Mr. Dinkins had filed an EEOC charge against Bunge). See id. § 2000e‐5.
When the plaintiffs protested that the court had not addressed their newly added § 1981
claims, the court reconsidered its order and agreed that Mr. Dinkins and Mr. Sanders could
proceed under § 1981 against both defendants. Relying on our then‐governing precedent,
see Hart v. Transit Mgmt. of Racine, Inc., 426 F.3d 863, 866 (7th Cir. 2005), the court clarified
that retaliation was beyond the scope of § 1981 and, thus, limited the plaintiffs’ claims to
failure to promote, exclusion from the apprenticeship program, discriminatory discipline
and the union’s failure to represent them.
After further proceedings, the district court granted summary judgment to the
defendants. Applying the indirect test for racial discrimination, the district court
determined that the plaintiffs had not established a prima facie case of race discrimination
against Bunge because they could not show that similarly situated white employees
received more favorable treatment: the white candidates chosen for the skilled jobs
possessed relevant experience that the plaintiffs lacked; the white applicants selected for the
apprenticeship program achieved higher test scores than Mr. Dinkins; and there was no
evidence that any other worker of similar rank, with a similar citation record, received less
No. 08-2919 Page 3
discipline for similar conduct. Turning to the retaliation claim against Bunge, the court
observed that this circuit’s case law had recently changed to allow retaliation claims to be
pursued under § 1981, see CBOCS West, Inc. v. Humphries, 128 S. Ct 1951, 1954 (2008), aff’g
474 F.3d 387 (7th Cir. 2007), but concluded that the plaintiffs had failed to establish a prima
facie case because they produced no evidence of a causal connection between the protected
activity and the discipline. Lastly, the court ruled that the plaintiffs could not make out a
prima facie case of discrimination against the union because the union did in fact often take
up their grievances.
On appeal Mr. Dinkins and Mr. Sanders contend that the Supreme Court’s decision
in Humphries requires reinstatement of their § 1981 claims of retaliation for complaining
about the discrimination faced by their co‐worker. We agree that this new interpretation of
federal law is given retroactive effect in cases still open on direct review; in other words,
“we apply the law as it now is,” Molnar v. Booth, 229 F.3d 593, 599 (7th Cir. 2000) (citing
Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993)). And that is what the district court
did in its summary judgement ruling‐‐it noted that Humphries had overruled Hart and
proceeded to explain why the plaintiffs had not established a prima facie case of retaliation
against Bunge.
Mr. Dinkins and Mr. Sanders next challenge the district court’s management of
discovery. As best we can discern, they argue that the district court improperly denied
them access to relevant documents and disclosures by issuing a protective order, see Fed. R.
Civ. P. 26(c), that prohibited the disclosure of any confidential information except as
necessary for litigation of this case. We review the court’s ruling for abuse of discretion,
Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008), and will overturn it only if the appellants
suffered actual and substantial prejudice, Reynolds v. Jamison, 488 F.3d 756, 761 (7th Cir.
2007). Mr. Dinkins and Mr. Sanders, however, have not shown how the protective order
may have prejudiced them. The protective order did not deny them access to any
documents; it merely limited their extra‐judicial use of them. Consequently, we cannot say
that the district court abused its discretion in issuing the protective order.
Mr. Dinkins and Mr. Sanders also assert that the district court’s summary judgment
analysis overlooked evidence sufficient to create a genuine issue of material fact. They
assert that unspecified fact issues were raised, for instance, by statements contained in
requests they filed for admission‐‐requests that they believe should have been admitted into
evidence after the defendants failed to answer them within 30 days. See Fed. R. Civ. P.
36(a)(3). Yet such requests are admitted only if the defendants fail within 30 days to file an
answer or objection, and here Bunge and the union did object. See id. Moreover, the requests
for admissions were mailed only nine days before the close of discovery, and a party is not
required to give any response to such untimely requests. See Laborer’s Pension Fund v.
Blackmore Swere Constr., Inc., 298 F.3d 600, 605‐06, n.2 (7th Cir. 2002). Mr. Dinkins and Mr.
No. 08-2919 Page 4
Sanders further submit that the court disregarded Mr. Dinkins’ deposition testimony,
which, they believe, highlights a fact issue about the Flanagan Industrial Tests’
discriminating effects. In that deposition, Mr. Dinkins said he believed the exam was used
to prevent African Americans from qualifying for the apprenticeship program. But
speculative and conclusory claims are not enough to establish a genuine issue for trial. See
Payne v. Pauley, 337 F.3d 767, 772‐73 (7th Cir. 2003).
Lastly, to the extent that Mr. Dinkins and Mr. Sanders attack the district court’s
summary judgment grant in only general terms, we affirm the court’s disposition for
substantially the reasons the court gave. See Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1100 (7th Cir. 2008).
Accordingly, we AFFIRM the judgment of the district court.
AFFIRMED