Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 C 183--Charles N. Clevert, Judge.
Before Bauer, Manion, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Booker T. Johnson was employed by J.B. Hunt Transport, Inc. ("Hunt"), an interstate motor carrier, until he was terminated from his position on June 12, 1995. He worked as a road driver operating a tractor-trailer on a regular route, and later became a driver trainer. He transferred to the Hunt facility in Bridgeview, Illinois, in 1990, and received numerous safety awards and commendations for good performance at that facility. He achieved the status of "gold driver" which entitled him to certain advantages such as getting a new truck whenever one was available, choosing his routes, and never having to wait for a load, as well as fuel and performance bonuses. In late 1994, Johnson learned of a job opening at the terminal in Oconomowoc, Wisconsin, which would allow him more time at home. He contacted Sharon Lincks, who was the Project Manager at that facility, and was granted an interview in December 1994. At that time, the Oconomowoc facility employed only one African-American driver. Johnson is African-American, as were approximately 80% of the drivers at the Bridgeview terminal. Lincks informed Johnson that the interview went well and that it would take approximately 5 days to process his paperwork. When he received no further word from her, he called the Oconomowoc facility, and was informed by a dispatcher that several new drivers had been hired but that he was placed on a wait list. He then contacted the operations manager in Chicago concerning his interest in the transfer, and that manager arranged for the transfer which took place in February 1995.
The testimony at trial indicated actions by Hunt singling Johnson out for unfavorable treatment. Although he was the first person to arrive at the dispatch office, the other drivers were given their assignments first, and he was the last one on the list to get his paperwork. Moreover, he was given the most time-consuming assignments on the slowest routes, which affected his income because drivers were paid by the load rather than the mile. When Johnson walked in the room, Lincks would act ". . . like she smelled something or go to coughing or hide her face or cover her nose or something like that." She also repeatedly suggested to Johnson that he should go back to Chicago to drive. Finally, Lincks told him that there were no assigned trucks at the Oconomowoc terminal, which meant that he was not able to exercise his right as a gold driver to the new trucks. Johnson testified, however, that he observed the same trucks going to Iowa every day with the same drivers. He nevertheless was generally assigned older trucks that had to be cleaned before being used. Prior to the Memorial Day weekend, the Fleet Manager proposed that Johnson work on Saturday in exchange for taking off Memorial Day, which Johnson decided to do. When Johnson was absent on Memorial Day, both Lincks and Marcus Bishop, a dispatcher, contacted him. When he explained that he had traded his holiday, Lincks told him that if he did not work that day, he would be drug tested and could not drive out of the Oconomowoc facility anymore.
Johnson called the main office in Arkansas after that conversation to complain that Lincks was prejudiced and was discriminating against him in the assignment of trucks, routes and loads, and that Lincks had told him he could not work out of the Oconomowoc facility anymore. A meeting was held to discuss his concerns, and Johnson returned to work on June 12. On that day he was informed by Lincks that he had been chosen for a random drug test and was ordered to report to the Wilkinson Clinic to give a urine specimen. Johnson testified that he went to the clinic and waited approximately 15 minutes because no nurses were available. He was then told to go to lunch, and did so. While at lunch, he phoned Lincks to inform her of what happened at the clinic. He then returned to the clinic, and after an additional 15-20 minute wait, provided the urine sample. The specimen was taken by Cynthia Raether, who testified that the temperature of the specimen was normal, and who indicated on some of the forms that the "specimen appears dilute/pale in color." Later that day, Lincks told Johnson that he had to return to the clinic that day to be tested again because the sample was diluted. She further told him she was going to accompany him to the clinic to do an observed sample. Johnson believed this was further discriminatory harassment, and refused to do so. He was then fired.
In response to Johnson's claim of discrimination, Hunt asserted that it was simply following Department of Transportation ("DOT") regulations applicable to Federal Drug Screening, and that the clinic had determined that the sample was diluted and that a retest was required. Raether and her supervisor at Wilkinson Clinic testified at the trial. Raether testified that Johnson did not exhibit any behavior indicating an attempt to tamper with the specimen and that the temperature of the specimen was normal. She further stated that she made no recommendation that further testing of the sample was needed or that a second sample was needed that day. She also testified that the clinic never performed any preliminary testing on samples, never made any determination as to the adequacy of the specimen, and never made any recommendations to any employer as to the need for additional drug testing. Her supervisor, Beverly Yunto, testified that she made no such call to Hunt either, that the DOT rules required a direct observation collection only when the collection site person observed behavior clearly evidencing an attempt to tamper with a specimen or where the temperature was outside the normal range, and that neither of those circumstances were present in Johnson's case. She further stated that the Wilkinson Clinic does not do observed collections.
The jury found in Johnson's favor on his claims under Title VII and sec. 1981, and judgment was entered against Hunt in the amount of $202,633.62 plus costs and attorney's fees. Hunt appeals, arguing that the Title VII claim was not timely filed and that the district court erred in precluding the testimony of Lincks and Clay Perry, Lincks' supervisor, as a sanction for noncompliance with discovery obligations. Because we affirm the district court on those issues, we need not consider Hunt's additional contention on appeal that Johnson had an insufficient contractual relationship with Hunt to support a sec. 1981 claim.
We turn first to Hunt's claim that the Title VII charge was not timely filed with the EEOC. Pursuant to Title VII, Johnson was required to file his claim with the EEOC within 300 days after the alleged employment practice occurred. 42 U.S.C. sec. 2000e-5(e)(1). For a state such as Wisconsin having its own antidiscrimination agency, however, Title VII also provides that no charge may be filed with the EEOC "before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . ." 42 U.S.C. sec. 2000e-5(c). In EEOC v. Commercial Office Products Co., 486 U.S. 107, 114-15 (1988), the Supreme Court held that a state proceeding need not be finally ended in order for it to be considered "terminated" under this provision. Instead, the Court accepted the EEOC's contention that "a state agency 'terminates' its proceedings when it declares that it will not proceed, if it does so at all, for a specified interval of time." Id. at 115.
Johnson filed his charge with the Wisconsin Equal Rights Division ("ERD") on April 4, 1996. The 300-day period expired on April 7, 1996, and Hunt claims that the State proceedings were not terminated before that date and therefore the charge was untimely. This issue therefore ultimately hinges on whether the state proceedings were "terminated" by April 7, 1996. To answer that question, we must examine the worksharing agreement entered into between the EEOC and the ERD.
The agreement provides, in relevant part:
In order to facilitate the assertion of employment rights, the EEOC and the [ERD] each designate the other as its agent for the purpose of receiving and drafting charges.
Normally, once an Agency begins an investigation, it will resolve the charge. Charges may be transferred between the EEOC and [the ERD] within the framework of a mutually agreeable system. Each Agency will advise Charging Parties that charges will be resolved by the Agency taking the charge except when the Agency ...