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October 21, 1994



The opinion of the court was delivered by: JAMES B. ZAGEL

The current baseball strike is only the latest in a number of indignities recently inflicted upon followers of the Chicago National League Ball Club, Inc.: the introduction of night games at Wrigley Field; the trading of Lou Brock; the departure of Cy Young winner Greg Maddux; and, as this lawsuit alleges, the elimination, in 1992, of the position of "ball person."

 Cynthia Schoeneck was hired as the ball person for the Chicago Cubs' 1991 season. Dressed in a team uniform, her duties included retrieving foul balls and providing fresh baseballs to the umpire. Earning fifty dollars per game, Ms. Schoeneck missed only one of the 82 home games that year. When told that as a part-time seasonal employee she posed insurance problems which prevented her re-hiring, Ms. Schoeneck offered to buy her own insurance and sign a waiver exculpating the Cubs for any personal injury.

 Ms. Schoeneck says the Cubs' decision permanently to eliminate the position of ball person the following season was the source of great personal sadness, an assertion which I find easy to believe Her absence from Wrigley Field the following season was not, she admits, actually responsible for her subsequent separation and divorce, but it was the source of friction between her and her husband: "I didn't let go of the idea with the Cubs, and I kept bringing it up over and over again, and he got tired of hearing it. It's like, enough already. Let it go, and I couldn't."

 To hold on to the job she loved, Ms. Schoeneck filed suit in federal court on three counts. She claims that the elimination of the ball person position was a pretext for unlawful gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq.; that the Cubs breached an oral contract guaranteeing to her for life the job of ball person; and that she relied to her detriment on a promise of permanent employment.

 The Chicago National League Ball Club has moved for summary judgment on all three counts. Summary judgement "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could not return a verdict favoring the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All inferences will be drawn in favor of the plaintiff on the respective issues. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989).

 I. Gender Discrimination.

 Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), a plaintiff can establish a prima facie case of sex discrimination by showing that 1) she belongs to the statutorily protected class of women employees; 2) she performed her job satisfactorily; 3) she suffered an adverse employment action; and 4) she was treated less favorably than similarly situated male employees. Hughes v. Brown, 20 F.3d 745 (7th Cir. 1994). Assuming, for the sake of argument, that Ms. Schoeneck meets the first three prongs of the test, she fails on the fourth: she cannot establish that she was treated less favorably than similarly situated male employees, for the simple reason that no males were similarly situated.

 In Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1994), the plaintiff's position in the Public Affairs office of the United States Navy was eliminated during a reduction in force. The evidence established that at the time of termination no males served in that office and thus no males were potentially subject to the reduction. Id. at 1435. The United States Court of Appeals for the Ninth Circuit affirmed summary judgement in favor of the employer, holding that the plaintiff failed to make out a prima facie case of sex discrimination because she could not show that, under the circumstances, men were treated more favorably than she. Id.

 The logic of Washington v. Garret applies here. This is not a case in which two ball persons, one male and one female, were previously employed and only the comparable male was rehired for the position while the plaintiff was not. Nor is it a case in which a female ball person was replaced in that job by a male. Rather, the position itself--equally open to both sexes--was eliminated. And while Ms. Schoeneck's chances for being ball person were thereby eliminated, so were those of any males who would have competed for the coveted position.

 A defendant may rebut a prima facie case of sex discrimination by articulating at least some legitimate, nondiscriminatory reasons for its allegedly biased treatment. Hughes, 20 F.3d at 746-47. The defendant claims that increased concerns about field security led to an increase in security personnel. The duties of ball person, it was thought, could easily be absorbed by the enhanced security staff.

 To prove that a more efficient allocation of human resources, not bias against women, was the basis for its decision, the Club offers uncontroverted evidence that female crowd control staff members, along with their male counterparts, eventually became responsible for those tasks formerly performed by the ball person. Since the Club has proffered a legitimate, non-discriminatory basis for its decision, Ms. Schoeneck must establish that the reason is merely pretextual. Hughes, 20 F.3d at 747 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989)); Box v. A & P Tea Co., 772 F.2d 1372 (7th Cir. 1985).

 Ms. Schoeneck reviles the Cubs for the team's perceived incompetence, both on and off the field, from 1908 to the present. She portrays as "incredible," because supposedly so out of character, the team's concerns for the safety of fans and players. But her burden cannot be surmounted by vitriol.

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