### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 13

- 1876

M ATTHEW W HITFIELD , Plaintiff

- Appellant

,

v.

I NTERNATIONAL T RUCK AND E NGINE C ORPORATION , Defendant

- Appellee

.

____________________
Appeal from the United States District Court for the
Southern District of Indiana

, Indianapolis Division.
No. 1:02

- cv

- 00902

- RLY

- TAB

— Richard L. Young

, Chief Judge

.

____________________

A RGUED N OVEMBER 14, 2013

— D ECIDED J UNE 6

, 2014

____________________

Before W OOD , Chief Judge , and C UDAHY and R OVNER , Ci rcuit Judges

. C UDAHY , Circuit Judge

. This rather complex matter i nvolves a failure to hire claim under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act. At the heart of this case is plai ntiff

- appellant Matthew Whitfield’s application for an electr ician position at one of defendant

- appellee Navistar’s engine manufacturing plants. Whitfield is African

- American, and prior to applying with Navistar, he worked as an electr ician2 No. 13

- 1876

for various employers, including four years with the U.S. Navy. Navistar is a manufacturer of engines, among other equipment , and employed a number of electricians at the time of Whitfield’s application.
In 1996, Whitfield applied for an open electri cian position at Navistar’s plant in Indianapolis, Indiana (the Plant). At the time, Navistar had a significant need for electricians and hired sixteen electricians at the Plant while Whitfield’s appl ication was pending, and eleven during the relevant limi t ations period. The written job description for electricians, as negotiated with the United Automobile, Aerospace, and A gricultural Implement Workers of America (the Union) r equired that an applicant have either eight years experience
as an electrician or a journeyman card, which was considered presumptive proof of the experience requirement. The jou rneyman card could be issued by the Union or any other u nion with compa rable apprenticeship standards. Navistar delegated the responsibility of evaluating and confirming an applicant’s experience to the Union.
When Whitfield first applied for a job in 1996 he alleged he had approximately nine and a half years of experience as an electrician, includin g four years in the U.S. Navy. The Plant’s general foreman, Daniel McDonald, interviewed
Whitfield and stated he would hire him if the Union verified the requi red eight years of experience. However, when the Union attempted to verify Whitfield’s numerous employers it was unable to determine he had the requisite ei ght years experience. Navistar asserted the difficulty in verifying Whitfield’s experience was due to errors on his application, but the Union did not consider Whitfield’s four years of e xperience as an electrician in the Navy, which it concededNo. 13

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should ha ve been considered. Whitfield was never rejected by Navistar; instead he was told that the Union could not verify his experience. At the suggestion of Navistar’s electr ical foreman, Willie Jones, Whitfield continued to work els ewhere as an electrician and to supplement his Navistar a pplication with additional references.
In September 1998, Whitfield obtained his International Brotherhood of Electrical Workers (IBEW) card, and submi tted proof of it to Navistar. At this point there is no doubt that Whitfield met the minimum requirements for hire. Union Committeeman George Bunton then cleared Whitfield for hire, and returned Whitfield’s file to Jones. While returning
the file to Navista r with notice of Whitfield’s clearance, Jones opened Whitfield’s folder and saw that the word “black” was written on the application’s cover sheet. Surprised, Jones asked Navistar’s Human Resources manager, Jeff Thatcher, why the word appeared on the file. Thatcher could not e xplain why the cover sheet was there and said it must have
been a mistake.
Whitfield continued his quest to gain employment at Navistar. In March 1999, Whitfield gave the Union an upda ted copy of his IBEW card and an updated applicatio n. While Whitfield’s resubmitted application was pending, Navistar
hired at least five more white electricians. Whitfield was never formally rejected but in December 1999 Jones unoff icially told Whitfield that although he wished to hire Whi tfield, Navistar would not allow it. At trial Navistar asserted various reasons for not hiring Whitfield, including the “e rrors” in his resume and his purported lack of Programmable Logic Controller (PLC) experience, which Navistar conten ded was an important, but unstate d, qualification for the ele c-4 No. 13

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tricians they hire. No final decision maker has ever been identified by Navistar.
In October 2001 Whitfield, along with 26 other Plaintiffs, sued Navistar under Title VII, alleging Navistar discrimina ted in hiring and maintain ed a racially hostile work enviro nment in the Plant. The district court certified the other Plai ntiffs’ hostile work environment class and ordered that Whi tfield’s hiring discrimination claim remain part of the unde rlying case for discovery and all other pretrial proceedings, but separated his claim fro m that class action for trial. The
hostile work environment class action went to trial in 2006
but was settled with most of the class action membe rs before
conclusion of trial.
During joint discovery for the class action and Whitfield’s claim, extensive amounts of evidence and testimony sho wing extreme racial hostili ty at the Plant were presented. Ev idence showing racial hostility at the Plant included symbols of racial hatred (including nooses), photos o f racially hostile graffiti and racially offensive slog ans scrawled around the
Plant. The evidence also showed that Navistar refused to discipline white employees, including supervisors, for s uch racially charged behavior. There was also evidence that th e Plant systematically excluded blacks from the skilled trades.
Whitfield’s claim finally proceeded to a bench trial in June 2012. After the first day, Whitfield filed a submission regarding evidence from the earlier class trial, Allen, et al. v.
Internat ional Trucking , in an attempt to introduce 59 exhibits and testimony from 19 trial exhibits. Navistar objected, and the district court took the issue under advisement, and the trial proceeded until completion. On July 31, 2013, the court issued its finding s of fact and conclusions of law as well asNo. 13

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an entry of final judgment. The court rejected Whitfield’s submission regarding evidence from the class trial, stating that Whitfield gave the court no authority to support admi ssion of evidence from the class ac tion. Further, the court found that Whitfield’s submission, proffered one day into trial, was untimely. The court then concluded that Whi tfield’s evidence was insufficient to directly or indirectly prove discrimination. Specifically, the court determined t hat Whitfield’s evidence did not imply any discrimination, that Whitfield did not meet Navistar’s unstated qualifications for the job, and that he did not offer any compelling comparator
evidence. Because we find the district court made several e rrors in a nalyzing Whitfield’s evidence, we now reverse.

I.
Under Title VII, employers may not “discriminate against any individual with respect to his

... privileges of emplo yment, because of such individual’s race[.]” 42 U.S.C. § 2000e

2(a)(1). Title VII claims and 42 U.S.C. § 1981 claims incorp orate the same liability standard. Walker v. Abbott Laboratories

, 340 F.3d 471, 474 (7th Cir. 2003). Once Whitfield shows he was subjected to an adverse employment action, here Navi star’s failure to hire him, he can prevail on h is discrimination claim by submitting direct or indirect evidence of discrim ination. See McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Under the relevant statutes of limitations, only Whi tfield’s claims from May 16, 1998 and onward are timely.

Dir ect Method
We begin wi th the direct method of proof. In analyzing Whitfield’s evidence, the district court makes two significant errors, which ultimately doomed its analysis. The court first6 No. 13

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erred by discrediting evidence of Whitfield’s personnel file

con taining a cover pa ge with the word “black” on it. D e spite our skepticism concerning the district court’s negative cred ibility assessment 1 of Jones’ testimony, we do give the court deference in its credibility determinations. See E.C. Styberg Eng’g Co. v. Eaton Corp. , 492 F.3d 912, 917 (7th Cir. 2007). However, the court did not have discretion to create an e xplanation out of thin air as to why the word “black” was on the file, nor should it have ignored substantial ev i dence of a racially hostile environmen t. Despite being called the “direct method” of proof, ou tright admissions of discriminatory intent are rare, so plai ntiffs usually use circumstantial evidence of discrimination to support their claims. Phelan , 463 F.3d at 779. A plaintiff may prevail by “c onstructing a convincing mosaic of circumsta ntial evidence that allows a [factfinder] to infer intentional discrimination by the decisionmaker.” Id . For this mosaic to be convincing, it must directly point to a discriminatory re ason for the employer’s acti on and also be directly related to the employment decision. Dass v. Chicago Bd. of Educ. , 675 F.3d 1060, 1071 (7th Cir. 2012). It will not do for plaintiff to assemble an “amorphous litany of complaints about a myr iad of workplace decisions.” Gorence v. Ea gle Food Ctrs., Inc.

, 242 F.3d 759, 762 (7th Cir. 2001). But, “[r]emarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria will suffice as
direct evidence of discrimination even if the evidenc e stops

1 The district court determined Jones was not credible on the basis of two minor facts: (1) he could not remember how the cover sheet containing the word “black” was affixed to Whitfield’s personnel file; and (2) he could not remember the exact date Whitfie ld’s IBEW card was issued.No. 13

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short of a virtual admission of illegality.” Miller v. Borden, Inc. , 168 F.3d 308, 312 (7th Cir. 1999), quoting Venters v. City of Delphi , 123 F.3d 956, 973 (7th Cir. 1997) (quotations omitted from original). Whitfield attempted to create this mosa ic with evidence of his racially coded personnel file, and by drawing a link between that file, the Plant’s racially hostile
environment and Navistar’s refusal to hire him.
The district court, despite having no evidence from Navistar for support, concluded that Whitfield’s file could have had “black” written on it for affirmative action purpo ses, reasoning that Whitefield’s file indicated his race to allow Navistar to comply with its affirmative action program. But Navistar’s own human resources manager, Je ff Thatcher,
admitted that he did not know of any reason why “black”
was written on Whitfield’s file and that it must have been a mistake. Navistar did have an affirmative action program, but it did not collect race information by labeling applicants’
file s with their race. Moreover, Navistar’s diversity manager Roy Civils testified that it would not be proper for info rmation regarding a candidate’s race to be sent to the Union for the candidate evaluation process. It is incongruous that
someone would have labeled Whitfield’s file “black” for a ffirmative action or other legitimate purposes when the HR manager himself, who would be in the best position to know of any non

- discriminatory explanation for the cover sheet, could not explain why it was on the file. Thus, the district court’s account of the evidence regarding its alternative e xplanation for the “black” cover sheet is neither plausible in light of the entire record nor a permissible view of the ev idence. Anderson , 470 U.S. at 574.8 No. 13

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Even more troubling is the district court’s determination that there is no evidentiary link between the cover page and
an intent to discriminate. First, this strikes us as evidence of racial coding, which strongly infers discrimination. See e.g.

, Calloway v. Westinghouse Ele c. Corp , 642 F. S upp. 663, 687 (M.D. Ga. 1986). Second, the district court apparently i gnored rather extensive evidence of the racially hostile env ironment within which this cover page was attached to Whi tfield’s personnel file. We will address this issue further later on, but for now it is important to note that the district court rejected Whitfield’s attempt to admit evidence from the class
action

— evidence which painted an exceptionally clear, and rather shocking, picture of the Plant’s racially hostile work environment. In determining that such evidence was ina dmissible, the court said that there was plenty of other ev idence establishing the Plant’s racially hostile work enviro nment. Inexplicably, the district court makes no mention of
this other context ual evidence in its conclusion that no ev idence links Whitfield’s “black” cover page with any discri minatory intent. This is troubling. It is obvious to us that this contextual evidence is at least relevant, and the court’s fai lure to even mention this con text in its conclusions regarding the cover page is clear error.
The district court committed a second, more egregious, error by giving enormous weight to the fact that Navistar hired Donna Jackson, an African

- American electrician,
around the time of Whitf ield’s pending application. In doing so, the district court again shut its eyes to the entire record, choosing an implausible view of the evidence, and, at the same time, misapplied the law.No. 13

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Jackson had at least thirteen years of experience at the
time sh e applied. Notwithstanding her clear experience, eleven white electricians were hired before Jackson was f inally hired two years after her initial application. She was
the first black electrician Navistar had hired in decades.
While the district court does have some degree of discretion in weighing evidence, it clearly exceeded that discretion when it determined that Jackson’s hiring “negat[ed] any i nference that Navistar failed to hire Whitfield due to his
race.”
By giving such substantial weight to the J ackson hire, the district court apparently forgot that while she was employed at Navistar, she was subject to a severely hostile enviro nment at the Plant, which was primarily directed at her race. In fact, Jackson’s story of waiting two years, despite bein g more qualified than white applicants that were hired instead of her, as well as the racial hostility she was subjected to when she was finally hired, bolster Whitfield’s direct di scrimination evidence. It is a rather persuasive piece of ci rcumstantial ev idence, which the district court erroneously relied upon to negate discrimination rather than to support it. Moreover, this singular instance of Navistar hiring a black electrician, does not entitle Navistar to immunity from su bsequent discrimination alleg ations. Cf. Carson v. Bethlehem Steel Corp. , 82 F.3d 157, 158

– 59 (7th Cir. 1996). Instead, the court should have recognized that even though a member of the same protected class was hired, that fact does not mag ically negate the inference created by the ev idence of Jac kson’s hiring and employment at the Plant, the evidence of intense racial hostility at the Plant or the cover page on Whitfield’s personnel file identifying him as black. We find10 No. 13

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that these clear errors led the district court to improperly
dis tort Whitfield’s mosaic of circumstantial evidence.

Indirect Method

We now turn to the indirect or burden

- shifting method of proving discrimination. Under this method, Whitfield must
establish a prima facie case consisting of four elements: (1) he

was a me mber of a protected class; (2) he applied for an open position for which he was qualified; (3) he did not receive the position; and (4) those who were hired were not in the protected class and had similar or lesser qualifications. See Blise v. Antaramian

, 409 F.3d 861, 866 (7th Cir. 2005); see also McDonnell Douglas Corp. v. Green

, 411 U.S. 792 (1973).

There is no real issue as to the first and third elements

— it is undisputed that Whitfield is a member of a protected class and did not receive the position h e applied for. The district court concluded that Whitfield failed to prove the other el ements. In addressing the second element, the district court first determined that Whitfield applied in 1996, was rejected, and applied again in 1999. Because his 1996 application was b efore May 16, 1998, the court determined that any claim r egarding his 1996 application was untimely, which effectively meant that the court considered only Navistar’s conduct a fter Whitfield’s re

- application in March 1999. Oddly, the court also concluded that Whitfield had submitted an updated r esume in 1997, and even in 1998 the Union was still trying to verify his experience. Instead of supporting a formal reje ction of Whitfield’s application, the record shows that Whi tfield was informed that his application was still under co nsideration and that Whitfield continued to supplement hisNo. 13

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application well into 1998. The record does not support the district court’s determination that Whitfield was rejected a fter his first application. All conduc t within the statutory p eriod should be considered by the court. See National R.R. Pa ssenger Corp. v. Morgan , 536 U.S. 101, 114

– 115 (2002). Thus, in light of Whitfield’s pending application in May 1998, we see no reason why the court should neglect to cons ider Navi star’s timely conduct that took place before Whitfield’s re

application in 1999. In any event, even if we were to limit our analysis to the 1999 application, Whitfield can still satisfy
each element of the indirect method.

More central to our ana lysis of the second element of the indirect method is the question of Whitfield’s qualifications. Navistar required that an electrician applicant have either eight years of experience as an electrician or a journeyman’s
card. Whitfield contends that he had eight years of exper ience at the time of his initial application, and certainly had that many as he continued to supplement his application with his current work experience. Yet, for some reason the Union had trouble verifying his experience. In any case, at the time of his reapplication in 1999 Whitfield had obtained an IBEW Journeyman’s card, making him presumptively qualified for the position. 2 Standing alone, this should have been enough to satisfy this element. However, instead of r elying on this presumptive evidence, the district court f ocused on Navistar’s justifications for not hiring Whitfield, namely that Whitfield lacked Navistar’s “preferred,” but never formally stated, qualifications. The district court d e-

2 In fact, the record shows and the district court made a factual finding that U nion Committeeman Bunton cleared Whitfield for hiring in September 1998 on the basis of both his IBEW Journeyman card and his actual experience.12 No. 13

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termined that Whitfield was not qua lified for this job, and Navistar was justified in not hiring him, due to errors in his resume and his purported lack of experience with pr ogrammable logic controllers (PLC).
Whatever the reasons the district court relies upon to ju stify Navistar’s failure to hire, it does so in error because no
decision maker has been identified. Navistar was never able to identify the individual who made the final decision to not hire Whitfield. Thus, it is impossible for the court to conclude
that the reason he was not h ired was due to either the errors in his resume or lack of PLC experience. While those may have been reasons for not hiring Whitfield, without any known decisionmaker, it is mere speculation to say these
were the actual reasons. The district court stated t hat “it was ultimately Powell’s opinion regarding Whitfield’s lack of PLC experience that was the driving force behind Navistar’s decision not to hire Whitfield.” However, Powell testified that he did not make the decision to not hire Whitfield, and
could not even identify who made the decision. Therefore, it is patently incorrect to say that Powell’s opinion had any bearing on the actual basis for the hiring decision.
Making matters worse, the evidence shows that Whitfield had more PLC experience than many of the white electr icians hired during the relevant time period. It is rather odd then that the district court would rely so heavily on Navi star’s desire for electricians with PLC experience when the
record shows that several new hires had none. Navistar’ s purported justification seemingly does more to show pr etext, than it does to show Whitfield was not actually qual ified. See, e.g.

, O’Neal v. City of New Albany , 293 F.3d 998,
1005

– 06 (7th Cir. 2002)(“[plaintiffs] may establish pretextNo. 13

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with evidence that the defendants were more likely than not motivated by a discriminatory reason or that their explan ations are not worthy of credence, i.e., they are factually bas eless, did not actually motivate the defendants, or were insu fficient to motivate the adverse employment action.”).

The same can be said for the district court’s fixation on
the errors in Whitfield’s resume. These errors may indicate why Whitfield’s resume could not be initially verified; ho wever, it is undisputed that by the time of Whitfield’s r eappl ication in March 1999, he had a journeyman’s card

— presumptive proof of his qualification, which should render any errors irrelevant. In any event, without a final decision maker it is impossible to say that either PLC experience or

resume errors were the sole bases for not hiring Whitfield. This district court’s reliance on these speculative justific ations was clearly erroneous.
Turning now to the fourth element, the district court also erred in determining that Whitfield failed to present any

compara tor evidence showing that he was at least as well qualified as non

- protected class employees who were hired during the relevant period. In fact, Whitfield submitted r ather compelling comparator evidence

— a chart, originally prepared by Navistar, which detai led the experience of both
Whitfield and Navistar’s electricians who were hired while Whitfield’s application was pending. As originally prepared,
the chart shows that Navistar hired at least one electrician with zero PLC experience during the limitations period. However, Whitfield alleged that the chart’s original form drastically understated 3 his experience and submitted an

3 The evidence shows that Navistar General Foreman McDonald prepared the EEOC chart using company files for the electricians that Navistar hired, but only14 No. 13

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updated version of the EEOC chart, which reflected his act ual experience. This updated EEOC chart showed that Whi tfield was more qual ified than most of the electricians hired during the limitations period.
Despite this clear comparator evidence, the district court disregarded it on the basis that the chart reflected the trai ning some of Navistar’s electricians received after being hired

. Inexplicably, both the district court and Navistar seem to a rgue that the document does not reflect the experience of the electricians at the time they were hired, so it is irrelevant to
Whitfield as an un

- hired electrician. Apparently Navistar
and the c ourt did not understand that the chart reflects the
total experience of Navistar’s electricians, thus showing that Whitfield was more qualified than several employees even after they received on

- the

- job training. The updated EEOC chart is clear and persuas ive evidence that Whitfield was more qualified than many of the white electricians Navistar hired during the limitations period

— the district court committed clear error in determining that Whitfield had failed to su bmit any comparator evidence regarding Na vistar’s preferred qualifications.

II.
Finally we must address the propriety of the district court’s exclusion of the evidence which was produced as a result of joint discovery with the class action involving
Navistar. The court excluded most of this evidence on the basis that it found no legal support for a blanket admission of exhibit and testimony from a previous trial; that the su b-

used his own recollection to fill out the chart as it pertained to Whitfield’s exp erience.No. 13

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mission was untimely; and that the evidence was either d uplicative or irrelevant. We ultimately find that it was within
the district court’s discretion to disallow the late submission
of evidence.

Timeliness
Judges have wide discretion to make evidentiary rulings and manage the efficiency of a trial. See, e.g.

, U.S. v. Boros

, 668 F.3d 901, 907 (7th Cir. 2012). While we think the district court was permitted to consi der this evidence 4 , no precedent suggests it was obligated to. The record shows Whitfield’s counsel believed the evidence was already admitted and did not want to waste the time and resources by resubmitting this evidence. However reasonable this assumptio n was, they had no legal authority supporting this assumption. Even when the district court specifically asked for this a uthority, they could give none. It was a risk, then, to assume that this evidence was admitted without addressing this i ssue with the d istrict court before the trial began. In this r egard, the district court was within its discretion to refuse to admit this evidence for its form (a blanket admission of v oluminous exhibits and testimony) and its timeliness (after trial had begun). Therefor e to the extent that the district court exercised its authority to control the trial by excluding

4 In Walker v. Loop Fish & Oyster Co. the Fifth Circuit determined that where a case is separated and the same judge presided over both the jury and bench trial, the judge had the discretion to consider the evidence from the jury trial in the bench trial. 211 F.2d 77 7, 780

– 781 (5th Cir. 1954). Given the overlap in the two proceedings at hand

— joint discovery, same case number and same defendants

— we think that the Fifth Circuit’s holding is applicable to this case

— a court has discretion to consider evidence from the ear lier trial if it does not result in prej udice.16 No. 13

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the blanket admission, we are reluctant to disturb that di scretion.

Relevance
The district court did not rely solely on the untimely n ature of the evidence, b ut suggested it was not relevant or duplicative as well. Although we grant substantial deference to the district court’s determinations regarding relevance, the class action evidence Whitfield sought to have admitted proved racial hostility was rampant at Navistar during the time of his applications, which is quite relevant to this case. Navistar argues that the evidence was duplicative and Whi tfield did not meet his burden to show it would change the outcome of his claim. The evidence very well could have changed the outcome of the case. As discussed above, the
district court’s failure to consider the circumstantial evidence of rampant discrimination at the Plant affected the outcome of Whitfield’s case. Thus, there is a strong indication that this
evidence is relevant. To the extent that the district court r elied on reasons of irrelevance in refusing to admit this ev idence, it was an abuse of discretion.

Exhibit 6
Finally, we note that the district court inconsistently treated the admissibility of this evid ence. On the first day of trial, Whitfield’s counsel referred to Exhibit 6, an exhibit from the class trial. Navistar objected on the basis that E xhi b it 6 was not evidence in this trial. The court acknow ledged that Exhibit 6 was already part of the record and ove rruled Navistar’s objection. During the discussion of this o bjection, Whitfield’s counsel contended that the evidence o btained from joint discovery and admitted in the class trialNo. 13

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was already admitted in this trial. Thus, it seems that by re cognizin g that Exhibit 6 was already part of the record, the court at least implicitly agreed with Whitfield’s argument. Obviously, the court changed its mind regarding the class evidence at some point between the time it recognized E xhibit 6 as already admitted a nd refusing to admit t he rest of
the class evidence. On remand, the district court should r esolve its inconsistent treatment of Exhibit 6 and the rest of
the class action evidence.

AFFIRMED in part, REVERSED in part,

and REMANDED.