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McCalpine v. Foertsch

decided: March 6, 1989.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 3301-Nicholas J. Bua, Judge.

Posner and Ripple, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Eschbach

ESCHBACH, Senior Circuit Judge

Defendants-appellants Tom Revane and John Foertsch appeal from the jury's award of compensatory damages in favor of plaintiff-appellee William McCalpine in a ยง 1981 suit for intentional discrimination based on race. At the conclusion of defendants' case, the court denied Foertsch and Revane's motion for a directed verdict. The jury returned a verdict against defendants Foertsch and Revane and awarded plaintiff compensatory damages for lost wages and for mental anguish. The defendants moved for judgment notwithstanding the verdict, which the district court denied. Appellants raise two issues on appeal. First, they argue that there is no substantial evidence in the record to support the jury's finding of intentional racial discrimination. Second, they challenge as excessive the jury's award of compensatory damages for lost wages and mental anguish. Because we agree with the appellants that there is no verdict, we reverse and do not reach the issue of whether the damages awarded were excessive.


McCalpine, a black man, was employed as a Management Systems Specialist in Procedures with the Illinois Department of Employment Security ("Department"). In 1985, the Department suffered a severe reduction in its federal funding. As a result of the loss of funding, the Department was forced to reduce the number of its employees. Seventeen employees in McCalpine's division, including McCalpine, lost their jobs as a result of the 1985 reduction.

Prior to February 1985, the Department was organized into four bureaus. Dianna Durham-McCloud, a black woman, was in charge of the Program and Planning bureau which was composed of five divisions. One of these divisions was Procedures and Training, in which McCalpine worked. Dolores Elliott, a black woman, was a division manager working directly under McCloud within the Program and Planning Bureau. Defendant John Foertsch, a submanager in the Procedures division, was McCalpine's supervisor. Defendant Revane, an executive in the Financial Management Services bureau, had previously served as Foertsch's supervisor.

At the same time as the Procedures' staff was being reduced, the bureau of Program and Planning was also undergoing reorganization. Dolores Elliott was responsible, along with James Boitnott, Dwan Darden, and Rhoda Muchmore, for creating the mission and function statements for the Department's bureaus under the reorganization. In the role, Elliott prepared job descriptions which were then submitted to the Illinois Department of Personnel ("Personnel").*fn1 Personnel classified the new job descriptions and determined whether each position was a new position or could be "traced" to an existing one. "Trace" means that fifty percent or more of the existing position was contained within the rewritten job description. If the position had "trace," the employee holding that position had the right to remain in it under the rewritten job description, the position was posted and employees were required to apply for it.

Personnel rated and graded the employees who applied for the posted positions. A grade of "A" meant that an employee met the state qualifications for the position and was entitled to be considered for the position for which he or she was rated. Since many employees received "A" grades, Elliott and her staff of Muchmore, Boitnott, and Darden developed a screening criteria to match training and experience with the qualifications needed for available positions. The senior management team of William Grant, Barbara Despenza, and McCloud, all of whom are black, and Robert Frank, who is white, approved the screening criteria. If an individual's application passed the screening criteria, that individual was assigned to be interviewed for an available position.

McCalpine was employed by the Department for thirteen years before the 1985 reduction in force. During his tenure with the Department, his supervisors rated him as "highly satisfactory" or better. McCalpine's supervisors promoted him through a series of positions which entailed operating and programming computer systems that the Department used. In 1979, McCalpine was promoted into the Management Information Systems division ("MIS"), which handled the date processing for the Department. While in MIS, Paul Terrault was McCalpine's immediate supervisor and Robert Bludgen was the deputy director of the bureau containing MIS. As a result of a conflict with Terrault, McCalpine took a voluntary demotion in grade in 1980 and transferred into the Procedures division as a Management Systems Specialist. McCalpine testified that Terrault and Bludgen refused to give him proper work assignments and were prejudiced against him because he is black. McCalpine further testified that Bludgen had told him that he considered McCalpine to be the necessary "token black manager." When McCalpine transferred into Procedures, these problems ceased.

One of the positions in the Procedures division involved in the reorganization was McCalpine's position as "Management Systems Specialist." As a result of the reorganization, two positions were created with this title. As with all the other positions in the Department, Elliott and her assistants, Darden, Muchmore, and Boitnott, wrote the job signed them the title of Management Systems Specialist. Personnel determined that neither of the reorganized positions were "traceable" to McCalpine's position because there had been a significant change in duties. Consequently, the two Management Systems Specialist positions were posted as job announcements RA-562H ("H Specialist") and RA-562I ("I Specialist").

McCalpine, along with a number of other candidates, applied for the Specialist positions. McCalpine received an "A" grade, passed the screening criteria, and was allowed to interview for the two new positions. Because of the similarity in the two new positions, applicants were interviewed for both positions at the same time. McCloud and Elliott selected the individuals who formed the panel assigned to interview the applicants. In forming the panels, McCloud chose one individual from each of three groups: the supervisor of the position; a user of the services; and technical expert. As the panel for the Specialist position, Elliott chose Foertsch, because he was just appointed as supervisor of that position. Elliott chose Kathleen Fredricks as the user of the Specialist services and then selected Revane because of his familiarity with the technical requirements of the position.

On the day of the interviews, the panel members received the names of the individuals they would be interviewing. The panel members were never given the individuals' actual applications for the Specialist positions. Each member of the panel received a written set of questions, which McCloud and Elliott had prepared, to ask at the interview entitled "Selection Interview." Along with the questions, the panel members received a "Panel Information Sheet" instructing them on how to conduct the interviews. The questions were structured, sometimes through the use of subparts, to allow for two scores corresponding to the positions of H Specialist and I Specialist. The "A" question and/or score pertained to the H Specialist, while the "B" subpart and/or score pertained to the I Specialist. The range of possible scores per question was zero to five points.

The written instructions were quite detailed. They instructed the panel members not to vary the questions and to ask only the questions indicated on the sheet. They further specified that each interview was to last for thirty minutes and to be conducted in exactly the same manner. At the conclusion of the interviews, the panelists were to record the candidate's total score and then to compute an average panel score for each candidate. The panelists were instructed to base their scores solely on the candidates' responses to the questions, not on their prior experience with the candidates or on the candidates' past job performance evaluations.

The H Specialist was a technical advisor to the Unemployment Insurance division. Specific duties of the H Specialist included: providing technical advice to the Benefit Information System Component of Unemployment Insurance, determining priorities, monitoring results and coordinating implementation in data processing changes to the Benefit Information System, and administering the security system for the computer. The H Specialist required four years of experience in computer-based management information systems.

The I Specialist was designated as the assistant manager for the subdivision. The I position was for a technical advisor to the Field Operations, Central Office Operations, and Revenue divisions. Specific duties of the I position included: determining priorities, monitoring results and coordinating implementation of data processing changes in the automated systems for Job Service, Revenue, Field Operations, and Central Office Operations. As the assistant manager of the subdivision, the I Specialist was required to serve on the subdivision, the I Specialist was required to serve on the Management Advisory Subcommittee and to have four years of experience in computer-based management information systems.

The panel of Foertsch, Revane, and Fredricks interviewed Shelva Hogan, Elaine Lang, McCalpine, Charles Finch, Michael Bisberg, and Robert Haas for both the H and I Specialists. The panel also interviewed Nathan Cohen for the H Specialist only. Hogan, Finch, and McCalpine are black. Prior to the reorganization, McCalpine's job as a Management Systems Specialist was assigned a pay grade of twenty. His position required a fair degree of technical expertise, and he had taken courses in management, statistics, mathematics, and systems analysis. Lang was an Executive I before the reorganization, and her job was classified as grade sixteen.*fn2 She had never taken any courses in mathematics, statistics, systems analysis, or computer science. McCalpine testified that he had a cordial relationship with both Revane and Foertsch, and that he occasionally socialized with them and other members of the Department after work. However, plaintiff testified that Revane was friendlier towards whites. Lang had a friendly relationship with Foertsch, and she and her husband had been driving to work with him on a daily basis for six or seven years.

During the interviews, the panel members each asked questions. McCalpine was having trouble hearing during the interview and asked to have a few questions repeated. Because of his hearing difficulty, the panel returned to one of the questions during McCalpine's interview. However, he never asked to have the interview postponed or rescheduled. Each panelist made notes of the individual's answers and then independently scored each individual interviewed.

The panel members scored the interviewees as follows:

H Specialist I Specialist

Foertsch: Hogan 34 Lang ...

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