Milton v. Weinberg Plaintiff-Appellant's Brief and Appendix

    LORD,  B I 5 S E L L  & B R O O K
115 S O U T H  L A S A L L E  S T R E E T  

C H I C A G O ,  I L L I N O I S  6 0 6 0 3

(3 1 * )  4 4 3 - 0 7 0 0  

C A B  ME -  LO W  IR  C O  C G O  

T f L E X :  2 5 - 3 0 7 0

A T L A N T A  O F F IC E  
T H E  E Q U IT A B L E  B U IL D IN G  

IO O  P E A C H T R E E  S T R E E T , S U IT E  2 6 4 0  
A T L A N T A , G E O R G IA  3 0 3 0 3

L O S  A N G E L E S  O F F IC E  
3 2 5 0  W IL S H IR E  B O U L E V A R D  

L O S  A N G E L E S , C A L IF O R N IA  9 0 0 1 0  
(2 1 3 ) 4 8 7 - 7 0 6 - 4  
T E L E X :  1 8 -1 1 3 5

D I A N E  f- J E N N I N G S  
£312)  443.-0694

(-40-4) 5 2 1 - 7 7 9 0  
T E L E X :  5 - 4 3 7 0 7

March 11, 1988
Ms, Gail J. Wright 
NAACP Legal and Educational 
Fund, Inc.
99 Hudson Street
New York, New York 10013

Re: Milton v, Weinberger
Dear Gail:

Enclosed are three copies of the finished product for your 
files. Again, thank you for your expert assistance and suggestions. 
They were greatly appreciated and, as you can see, for the most 
part followed.

I will forward a copy of the government's brief as soon as 
we receive it so that work can begin on a reply. Their brief 
is now due on April 11th, and our reply on April 25th.

Very truly yours

LORD, BISSELL & BROOK
/  1

By: Diane I. Jennings

DIJ:dl 
e n d .



In The
UNITED STATES COURT OF APPEALS 

For The Seventh Circuit

No. 87 - 3096

DONALD L. MILTON,
Plaintiff-Appellant,

vs.
CASPER WEINBERG, UNITED STATES DEPARTMENT OF DEFENSE,
DEFENSE LOGISTICS AGENCY, DCASR, Chicago,

Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District of Illinois, Eastern Division 
The Honorable Paul E. Plunkett, Judge Presiding.

PLAINTIFF-APPELLANT'S BRIEF AND APPENDIX

Of Counsel:

DANIEL I. SCHLESSINGER 
HUGH C. GRIFFIN 
DIANE I. JENNINGS 
LORD, BISSELL & BROOK 
115 S. LaSalle Street 
Chicago, Illinois 60603 
(312) 443-0694

JULIAN L. CHAMBERS 
CHARLES STEPHEN RALSTON 
GAIL J. WRIGHT

Attorneys for Plaintiff-Appellant 
Donald L. Milton

LEGAL DEFENSE FUND 
NAACP Legal and Educational 
Fund, Inc.
99 Hudson Street
New York, New York 10013
(212) 219-1900

Oral Argument Requested



TABLE OF CONTENTS

Page
Issue Presented for Review............................... I
Jurisdictional Statement.......................   1
Nature of the Case.......................................  3
Statement of Facts.......................................  5

Argument........        12
Once Plaintiff Proved Discrimination By
Indirect Evidence Rebutting The Articulated
Reason For His Discharge, He Was Not Required To Rebut
Unarticulated Reasons Nor To Present Direct
Evidence Of Racial Bias In Order To Prevail.......  12
A. Discrimination May Be Proved By Direct Or 

By Indirect Evidence Of Defendants'
Motivation......    12

B. Milton’s Evidence And The Court’s Findings 
Thereon Mandated A Conclusion That Racial
Bias Was The Cause Of His Discharge............. 19

C. In Any Event, The Trial Court's Ruling Is
Based On Erroneous Factual Findings............. 25

Conclusion.................................................  28
Appendix

Statement Pursuant To Circuit Rule 30................  A1
Order Finding For Defendants And Against Plaintiff,
Docketed Aug. 28, 1987...............................  A4
Order Denying Plaintiff's Motion For Reconsideration, 
Docketed Oct. 23, 1987...............................  A4
Transcript Of Proceedings Of Aug. 27, 1987,
Containing District Court's Oral Findings And 
Conclusions............................................  A5
Transcript of Proceedings Of October 22, 1987,
Containing District Court's Oral Statement Of
Findings On Denial Of Motion For Reconsideration.... A14

- l -



TABLE OF AUTHORITIES
Page

Cases
DeLisstine v. Fort Wayne State Hospital and Training
Center, 682 F.2d 130 (7th Cir. 1982), cert, denied
459 U.S. 1017, 74 L. Ed. 2d 511, 103 S. Ct. 378 (1982).. 20
Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393
(3d Cir. 1984), cert, denied 469 U.S. 1087, 83 L. Ed. 2d
702, 105 S. Ct. 592 (1984)..............................  14

Flowers v. Crouch-Walker Corp., 552 F.2d 1277
(7th Cir. 1977)..........................................  19
Furnco Construction Co. v. Waters, 438 U.S. 567, 57
L. Ed. 2d 957, 98 S. Ct. 2943 (1978)....................  17

Graham v. Bendix Corp., 585 F. Supp. 1036
(N.D. Ind. 1984).........................................  23
Hogan v. Pierce, 31 F.E.P. 115 (D. D.C. 1983)..........  23
Lanphear v. Prokop, 703 F.2d 1311 (D.C. Cir. 1983).....  14, 24
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).................  12, 17

Mister v. Illinois Central Gulf R.R. Co., 832
F . 2d 1427 (7th Cir. 1987)................................ 14, 18
Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987).....  18

Rosemond v. Cooper Industrial Products, 612 F. Supp.
1105 (N.D. Ind. 1985)....................................  23
Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).....  15
United States Postal Service Board of Governors 
v. Aikens. 460 U.S. 711, 75 L. Ed. 2d 403,
103 S. Ct. 1478 (1983)...................................  12 > 1 1 • 24
Village of Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S.
Ct. 55 ( 1977).............................................  22

Statutes
5 U.S.C. §4302 ............................................  21

42 U.S.C. §20Q0e et seg................................... 12

-i i-



ISSUE PRESENTED FOR REVIEW
Can the District Court's conclusion that Plaintiff failed to 

establish racial bias as a motivation for his discharge stand in 
light of the Court's findings that:

a) the Defendants' sole articulated reason for discharge 

was not believable; and
b) the Defendants failed to comply with statutory and 

regulatory requirements, otherwise observed by them, that 
Plaintiff be given notice of any performance deficiencies and an 

opportunity to remedy them?

JURISDICTIONAL STATEMENT
This action seeking relief from race discrimination in 

employment was brought against the United States Secretary of 
Defense, pursuant to Title VII of the Civil Rights Act of 1964 
(42 U.S.C. §2000e et se^.), as amended by the Equal Employment 
Opportunity Act of 1972 (42 U.S.C. §2000e-16). Plaintiff was 
notified on October 7, 1983 that, effective December 2, 1983, he 
would be discharged from his employment with the DCASR, an 
agency of the Defense Department. (R. 61 at p. 2; A6) On 
December 16, 1983, he filed charges with the agency's Equal 
Employment Opportunity Officer (" E E C ) alleging that his 
discharge was racially motivated. (R. 1 at p. 2)

The EEO issued a right to sue letter, which Milton received 
on September 14, 1984 (R. 1 at p. 2, R. 61 at p. 2), and this 
action was filed on Monday, October 15, 1984 (R. 1). The



District Court had jurisdiction thereof under 42 U.S.C. § 
20Q0e-5(f), 2000e-16(c), conferring jurisdiction of claims 
arising under Title VII, and under 28 U.S.C. §1343(a)(4), 
conferring jurisdiction of claims arising under any Act of 
Congress providing for the protection of civil rights.

The District Court's final order and judgment finding in 
favor of Defendants and against Plaintiff were docketed on 
August 28, 1987. (App. A2, A3) Plaintiff sought 

reconsideration of the Court's ruling in a motion received by 
the District Court and served on Defendants on September 8,

1987, the Tuesday following the Labor Day holiday. (R. 83)
That motion was denied in an order entered October 23, 1987.
(App. A4) Plaintiff filed and served his notice of appeal to 
this Court 60 days thereafter, on December 22, 1987 (R. 91), 
pursuant to Rule 4(a) of the Federal Rules of Civil Procedure, 
providing that a notice of appeal must be filed within 60 days 
if the United States or an officer or agency thereof is a party 
to the action. (F.R.C.P. 4(a).) This Court has jurisdiction of 
the appeal pursuant to 28 U.S.C. §1291, conferring jurisdiction 
of appeals from all final decisions of the district courts.

2



NATURE OF THE CASE

This action, brought pursuant to Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. §2000e et seq.), as amended by the 
Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16) 
involves allegations of racial discrimination in the discharge 
of Plaintiff Donald Milton (hereinafter "Milton") from federal 
employment. (R. 1, p. 2-3) Milton, a black, male citizen of 

the United States, was hired by an agency of the United States 
Department of Defense (hereinafter "DCASR") on January 3, 1983 
for the position of Facilities Engineer, GS-801-11, a 
Career-Conditional Appointment subject to a one year 
probationary period. (Def. Ex. D) On July 29, 1983, he 

received a positive written appraisal of his work in accordance 
with agency rules and regulations, but on October 5, 1983 he was 
told that his performance was unacceptable and on October 7,
1983 he was discharged, effective December 2, 1983. (R. 61 at
p. 2, A6)

The cause was tried before Judge Paul E. Plunkett, 
sitting without a jury, on May 12, 1987 and August 12, 1987.
(R. 96-1, 96-2) Judge Plunkett entered judgment in favor of the 
DCASR on August 28, 1987. (App. A2, A3) Although no written 
findings of fact and conclusions of law were entered, Judge 
Plunkett orally set forth the reasons for his ruling on August 
27, 1987, stating (App. A6-A13):

3



1. Milton had established a prima facie case of racial
discrimination in his discharge.

2. If the case involved a question of discharging him 
without cause and without due process, Milton would prevail, as 
the nondiscriminatory reason proffered by the DCASR, 
incompetence, was not true, and the DCASR had failed to follow 
applicable regulations in discharging him without giving notice 
of his purported deficiencies and an opportunity to remedy them; 

and

3. The Court nevertheless was not persuaded that the 
discharge was racially motivated, in light of the fact that the 
supervisor who discharged Milton had also hired him and had 
given him a positive evaluation two months before his 
discharge. Accordingly, the Court found that no racial 
motivation had been proved. (App. A9)

Thereafter, on September 8, 1987, Plaintiff moved for 
reconsideration of Judge Plunkett's ruling (R. 83), which was 
denied in an order docketed October 23, 1987 (App. A4). In so 
ruling, Judge Plunkett stated that, while he had rejected the 
reasons given by the DCASR for discharging Milton, he believed 
that the reason for his discharge was that his supervisor 
"simply didn't get along with him." (App. A15) This appeal 
followed.

4



STATEMENT OF FACTS

Introduction
The District Court found that Milton, a qualified and 

competent black civil engineer, was performing his job as a 
Facilities Engineer with the DCASR in a satisfactory manner.
(App. A6-A13) Nevertheless, Milton was fired without being 
afforded the opportunity to cure claimed deficiencies in his 
performance, even though such an opportunity was required by 

federal statute and regulations. The District Court’s 
conclusion that this evidence failed to establish racial bias as 

the motivating factor in Milton's unwarranted discharge without 

procedural safeguards afforded to other employees is totally 

contrary to the following evidence and findings:

The DCASR Chose Milton Over Other Minority 
Candidates For The Position Of Facilities Engineer
Milton was employed by the Defense Contract

Administrative Services Region-Chicago ("DCASR"), a division
within the Defense Logistics Agency, an agency of the United
States Department of Defense. (R. 61 at p. 2; App. A6) In late
1982, Larry Vann, chief of the DCASR*s Resources and Procedures
Branch, determined that a facilities engineer was needed to
monitor several pending and contemplated agency construction
Projects. (R. 96-1 at p. 125-126) Accordingly, he developed a
position description (PI. Ex. 3) and forwarded it to the
personnel office with a request that eligible candidates for the

5



position be identified. (Def. Ex. 0 at p. 86) Personnel sent 
him the names of three such candidates: Milton, Mrs. Doshin L.
Park, and Mr. Nanvant A. Patel. (R. 96-1 at p. 127-128; Def.
Ex. 0 at p. 86-87) Vann interviewed Milton and Mrs. Park, a 
Korean national, but did not interview the third candidate. (R. 

96-1 at p. 128)
Milton, a licensed professional engineer (R. 96-1 at p.

28) was found qualified for the position (R. 61 at p. 2; App.

A6), and was hired to begin work in Vann's department on January 
3, 1983 (R. 96-1 at p. 13; Def. Ex. D). His qualifications 
included a bachelor's degree in civil engineering, a master’s 
degree in business administration, and extensive work experience 
in structural design and supervision of construction. (R. 96-1 
at p. 28-32)

Vann Fails To Provide The Guidance 
And Orientation Afforded Other Employees

The supervisors in the branch where Milton worked were 
all white, as were all of the other employees except Joyce 
McClain, a black female. (R. 96-1 at p. 33-34) On the day 
Milton started work, Vann gave him a brief overview of the job, 
but did not explain in detail what Milton's duties would be.
(R. 96-1 at p. 57) Thereafter, Vann did not afford Milton any 
orientation regarding work procedures and methods, although he 
frequently gave such guidance to Donald Guerra, a white employee 
hired just two months after Milton. (R. 96-1 at p. 70)

6



The agency had an orientation program which was offered 
periodically for new employees. (R. 96-1 at p. 167) Vann never 
told Milton that this program existed because "it wasn't his 
responsibility" to do so. (R. 96-1 at p. 168) Sometime after 
Milton began work, however, a fellow employee mentioned the 
program, and Milton asked Vann about it. (R. 96-2 at p.
268-269) Vann promised to enroll Milton in the program, but 

never did so. (R. 96-2 at p. 269) In fact, during the 11 
months that Milton worked for the agency Vann never even 
inquired whether a session was scheduled. (R. 96-1 at p. 168)

Milton Received Positive Evaluations 
Prior To His Sudden Discharge

The District Court found that, during the course of 
Milton's employment, a single counseling session took place in 
April of 1983, in which Vann criticized his work, including 
perceived inadequate preparation for a meeting; layouts prepared 
for two offices; and "general lack of work quality and 
timeliness". (App. A8; PI. Ex. 9; R. 96-1 at p. 168-169) Three 
months later, however, on July 29, 1983, Vann completed a 
performance appraisal of the four "critical job elements" of 
Milton's work. He rated Milton as "highly successful" in his 
contribution to the professional work environment and in 
monitoring facility management, and "fully acceptable" in 
maintaining communications and monitoring minor construction.
(PI. Ex. 4; R. 96-1 at p. 173-174) Vann himself had determined 
the job elements which would be appraised, elements which by

7



regulation must accurately reflect the important aspects of the 

employee's work. (R. 96-1 at p. 173)
At trial, Vann acknowledged that the primary purpose of 

that evaluation was to inform the employee of how he was doing 
(R. 96-1 at p. 173); that it is important to tell an employee if 
he is not performing well, in order to give him an opportunity 
to improve (R. 96-1 at p. 162); and that regulations in fact 
required that employees whose performance is below standard be 

counseled and that supervisors determine what training will 

improve that performance and arrange for it to be provided (R. 
96-1 at p. 158-161). Vann asserted, however, that even though 

he considered Milton's performance to be so bad that he viewed 
him as a "walking joke", he gave Milton a positive appraisal, 

knowing that the evaluation would lead Milton to conclude that 

he was doing a good job. (R. 96-2 at p. 177)
Vann's uncommunicated opinion that Milton was completely 

worthless conflicted sharply with that of others who had 
occasion to observe his performance. Because of the nature of 

his job, Milton worked with a number of other supervisory 

personnel both within the agency and outside of it. He received 

nothing but positive comments from them, and several testified 

at trial that his work in fact was completely satisfactory. (R. 

96-1 at p. 39-44; Testimony of Barbara Reynolds, R. 96-2 at p. 
222-231; R. 96-1 at p. 104; Supp. R., Kekoolani Dep. at p.
13-20) No supervisor other than Vann testified that Milton s 
Performance was below expectations.

8



Vann Demonstrated Unjustified Distrust 
Of The Ability Of Black Employees To Perform

Throughout the time of his employment, Milton observed 
that Vann had less confidence in the ability of black employees 
to do their work than he did in the ability of white employees. 
(R. 96-2 at p. 270) That perception of attitudes within the 
department was corroborated by Joyce McClain, the only other 

black employee. She joined the DCASR in 1979 with the 
understanding that, at the end of one year of service she would 

be promoted from Grade 9 to Grade 11. (R. 96-2 at p. 233, 
238-239) Ms. McClain did all of the work assigned to her during 
that year, and received a good performance appraisal, but 
nevertheless was told that she would not be promoted because she 
"was not doing Grade 11 work." (R. 96-2 at p. 242) A white 
employee was promoted, and when Ms. McClain complained, she was 
suddenly promoted, without explanation, after a six week delay. 
(R. 96-2 at p. 242-243) Thereafter, Ms. McClain repeatedly 
asked to be given the broader assignments which would lead to 
further promotion, rather than having her work confined to a 
single narrow program. Vann promised to do so, but nevertheless 
continued to apportion the more important work among the white 
employees in the office. (R. 96-2 at p. 244-245, 251)

Milton Was Suddenly Discharged For 
Purportedly Incompetent Job Performance

On October 5, 1983, Vann met with Milton regarding 
purported failure to plan for relocation of employees during a

9



construction project, and suggested at that meeting that Milton 
look for another job. (PI. Ex. 9; R. 96-2 at p. 194-195) Two 
days later, -Milton was given written notice of his termination 
effective approximately 50 days later. (PI. Ex. 5; R. 96-2 at 
p. 195) That letter detailed four areas of alleged 
unsatisfactory performance: poor planning in monitoring
facilities management; failure to complete assignments on time; 
"unacceptable" correspondence; and errors in assigned projects. 
(PI. Ex. 5)

The District Court Rejects The DCASR's 
Claim That Milton Performed Incompetently

The bulk of the trial testimony involved the DCASR's 
claim that Milton was incompetent to perform his job, and 
Milton's rebuttal of that claim by showing that the allegations 
regarding his work were unfounded. Vann's testimony detailing 
his complaints about Milton's performance in large part dealt 
with incidents which predated the positive performance appraisal 
Vann gave him in July of 1983. (R. 96-1 at p. 132-152) With
regard to the incident which purportedly precipitated his 
discharge, failure to move employees and files in advance of 
construction (R. 96-1 at p. 146-147), Milton explained that he 
had made repeated efforts to have the files moved, but it was 
not done by those charged with the task of moving them (R. 96-1 
at p. 81-82, 91-92), and that the movement of personnel was 
necessitated only by last minute, major changes in the scope of 
the work to be done; changes which Vann himself made without

10



informing Milton (R. 96-2 at p. 261-263; PI. Ex. 12).
Judge Plunkett rejected the DCASR's claim that Milton was 

incompetent, noting that the incidents complained of predated 
the positive appraisal, and that the failure to move employees 
stemmed from Vann's failure to notify Milton of the altered 
construction plans. (App. A8-A9) He was also of the opinion 
that the reasons proffered by the DCASR did not constitute 
grounds for discharging Milton, and that the DCASR had failed to 

follow its own regulations in not providing Milton an 

opportunity to cure any perceived deficiencies in his 
performance. (App. A10) Nevertheless, Judge Plunkett found in 
favor of the DCASR, refusing to draw any adverse inference from 

the failure to follow procedures, or to ascribe racial bias as a 

motivation for the employment decisions because the supervisor 

who fired Milton had hired him and had given him a positive 

evaluation. (App. A8-A9)
Judge Plunkett did, however, find it to be a close 

question, and invited Milton's counsel to submit a motion for 

reconsideration. (App. A13) After reviewing the motion, Judge 

Plunkett declined to change his ruling, expressing uncertainty 

over the applicable standard, and finding that Milton was fired 

because his supervisor “simply didn’t get along with him.”
(App. A4, A15) This appeal followed.

11



ARGUMENT

ONCE PLAINTIFF PROVED DISCRIMINATION BY INDIRECT 
EVIDENCE DISPROVING THE ARTICULATED REASON FOR 
HIS DISCHARGE HE WAS NOT REQUIRED TO REBUT 
UNARTICULATED REASONS NOR TO PRESENT DIRECT EVIDENCE 
OF RACIAL BIAS IN ORDER TO PREVAIL

A. Discrimination May Be Proved By Direct Or
By Indirect Evidence Of Defendants' Motivation

The elements of a prima facie case of discrimination in 
employment under Title VII (42 U.S.C. §2Q00e et seq.), and the 
order and allocation of proof in such an action, established by 

the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), are well known and 
are not now in issue. Where, as here, the trial court 
determines that a prima facie case has been established and that 

a legitimate, nondiscriminatory reason for discharge has been 

articulated, the question becomes whether the plaintiff has met 

his burden of persuading the court that racial bias motivated 

the adverse employment action complained of. (United States 

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 75 L. 

Ed. 2d 403, 103 S. Ct. 1478 (1983).) As the Aikens Court 
further held, that burden of persuasion may be met in either of 

two ways:

"As we stated in Burdine:
'The plaintiff may succeed [in fulfilling 
the burden of persuasion] either directly 
by persuading the court that a 
discriminatory reason more likely motivated 
the employer or indirectly by showing that 
the employer's proffered explanation is

12



unworthy of credence.'
In short, the district court must decide 
which party's explanation of the employer’s 
motivation it believes." 460 U.S. at 716,
75 L. Ed. 2d at 410, 103 S. Ct. at 1482.
(Citation omitted, emphasis added.)

The District Court effectively found that Milton had
sustained his burden when it ruled that the DCASR's proffered
explanation for firing Milton was not believable. This finding

mandated a judgment in Milton's favor.
M[T]he McDonnell Douglas framework requires that 
a plaintiff prevail when at the third stage of a 
Title VII trial he demonstrates that the 
legitimate, nondiscriminatory reason given by 
the employer is in fact not the true reason for 
the employment decision." (Aikens, supra, 460 
U.S. at 718, 75 L. Ed. 2d at 417, 103 S. Ct. at 
1483 (Blackmun, J., concurring).)

The District Court erred, however, like the trial court in
Aikens, in apparently believing that the plaintiff in a Title

VII case is required to offer direct evidence of
discrimination. Judge Plunkett decided that he could not find

for Milton because he was not persuaded that the firing decision

maker, Larry Vann, had a "discriminatory approach or thinking or

conduct." (App. All) Such evidence is clearly not required

when the plaintiff proves his case through the indirect method.
460 U.S. at 714 n. 3, 75 L. Ed. 2d at 409 n. 3, 103 S. Ct. at

1481 n. 3.
To the contrary, reasonably read McDonnell Douglas and 

Aikens state that a Title VII plaintiff who demonstrates that 
the proffered justification for firing is a pretext has won his

13



case. As this Court stated recently in Mister v. Illinois 
Central Gulf R .R . Co . , 832 F. 2d 1427 (7th Cir. 1987), where the 
only reasons advanced for the disparate treatment are racial 
bias and a "legitimate" reason which has been disproved, 
acceptance of the discriminatory motivation is compelled. 832 
F. 2d at 1435. See also Aikens, supra, Blackmun concurring 
opinion at 460 U.S. 718; Duffy v. Wheeling Pittsburgh Steel 
Corp., 738 F. 2d 1393, 1396 (3d Cir. 1984) cert, denied, 469 
U.S. 1087, 83 L. Ed. 2d 702, 105 S. Ct. 592 (1984) (under Aikens 

the only burden of persuasion under the indirect method of 
establishing discrimination is proving that the proffered 
justification is not true; to find pretext is to find 
discrimination).

In any event, at a minimum the McDonnell Douglas 
framework of a three stage trial guarantees the plaintiff a 
procedure by which he is confronted with the evidence against 
him (once he has established a prima facie case) and given the 
opportunity to rebut that evidence. If he is successful in his 
rebuttal, he wins. The plaintiff cannot reasonably be expected 
to rebut all possible reasons for his firing, only those with 
which he is confronted. Indeed, the Court of Appeals for the 
District of Columbia so held under similar circumstances in 
Danphear v. Prokop, 703 F. 2d 1311 (D.C. Cir. 1983). There, as 
here, the employer claimed that the plaintiff was discharged 
because he did not perform his job competently. As Milton did 
in the instant case, the plaintiff in Lanphear then devoted his

14



energies" to proving that the articulated reason was not true. 
(703 F. 2d at 1316.) He was successful, but the district court 
nevertheless entered judgment for the employer, finding that the 
plaintiff was discharged because his employer "’wanted to inject 
new blood into the agency,'" a reason never articulated by the 
employer. (703 F. 2d at 1316.)

The Court of Appeals reversed that ruling and remanded 
the cause with directions to enter judgment for the plaintiff, 

stating in pertinent part:
"The district court's substitution of a reason of its own 
devising for that proffered by appellees runs directly 
counter to the shifting allocation of burdens worked out 
by the Supreme Court in McDonald Douglas and Burdine.
The purpose of that allocation is to focus the issues and 
provide plaintiff with 'a full and fair opportunity' to 
attack the defendant's purported justification. That 
purpose is defeated if defendant is allowed to present a 
moving target or, as in this case, conceal the target 
altogether.

The Supreme Court explicitly added [in Texas Department 
of Community Affairs v. Burdine, 450 U.S. 248, 255-56, 67 
L. Ed. 2d 207, 101 S, Ct. 1089 (1981)] that '[a]n 
articulation not admitted into evidence will not 
suffice. Thus, the defendant cannot meet its burden 
merely through an answer to the complaint or by argument 
of counsel.' It should not be necessary to add that the 
defendant cannot meet its burden by means of a 
justification articulated for the first time in the 
district court's opinion." (703 F. 2d at 1317. Emphasis 
in original.)
In the instant case, Milton successfully took on every 

bit of evidence presented that he was fired for a legitimate 
reason. The District Court, agreeing with Milton, found every 
reason offered by the DCASR for his discharge to be pretextual.

15



The court's finding that Milton was fired because his boss 
couldn't get along with him is unfair and unsupportable under 
Lanphear, not just because this was not one of the reasons 
claimed by the DCASR, but because absolutely no evidence was 
presented to support that finding. Milton's supervisor, Larry 
Vann, who made the decision, advanced several reasons for firing 
Milton, some of which were consistent with the reasons given by 

the DCASR. None of the reasons Vann gave, however, was his 

inability to get along with Milton. The exclusion of this 

reason from Vann's list amounts to a denial that this was the 
reason.

Even if the Court could have concluded that Vann and 
Milton did not get along, that conclusion of itself does not 
warrant a further conclusion that the failure to get along was 
the reason for Milton's firing. If that had been articulated as 
a reason and Vann had been asked the question directly, he might 
well have denied that conclusion. More importantly, since no 
evidence was presented that the DCASR fired Milton because Vann 
did not get along with him, Milton had no chance to rebut such a 
contention. For example, if confronted with such a claimed 
nondiscriminatory reason, thus placing on Milton the burden to 
show pretext, he might have presented evidence that Vann did not 
get along with various white employees, but never fired any of 
them as a result.

McDonnell Douglas's three-part procedure assures Milton 
of the opportunity to rebut any articulated claim of a

16



legitimate reason for his firing. (See Aikens, supra, 460 U.S. 
at 716, n. 5, 75 L. Ed. 2d at 410-411 n. 5, 103 S. Ct. at 1482. 
("Of course, the plaintiff must have an adequate 'opportunity to 
demonstrate that the proffered reason was not the true reason 
for the employment decision,' but rather a pretext.").) As the 
Lanphear Court recognized, he cannot be saddled with the 
additional burden of anticipating and rebutting any and all 

unclaimed, unarticulated reasons for the employer’s adverse 
action which might occur to the court, no matter how arbitrary 

or subjective. Such a reading would, in effect, require direct 

proof of discrimination.
The Supreme Court's mandate that a plaintiff be permitted 

to meet his burden of persuasion by proving that the reasons 
articulated for his discharge are not worthy of credence arises 
from the Court's recognition that, in a business setting, 
decisions are not random and arbitrary; when articulated 
legitimate reasons are eliminated, it is in fact more likely 
than not that the decision was based on an impermissible 
consideration such as race. (Furnco Construction Co. v. Waters,
438 U.S. 
(1978) . ) 
afforded 
assigned 
its appl 
a prompt 
at 807,

567, 577, 57 L. Ed. 2d 957, 967, 98 S. Ct. 2943, 2949 
For this reason, a Title VII plaintiff "... must be 

a fair opportunity to demonstrate that [the employer's 
reason for firing] was a pretext or discriminatory in 

ication. If the District Judge so finds, he must order 
and appropriate remedy." McDonnell Douglas, 411 U.S. 

36 L. Ed. at 680, 93 S. Ct. at 1827. (Emphasis added.)

17



The Supreme Court has expressly held that a Title VII

claimant is not, and cannot be required to present direct
evidence of racial bias as the reason for his discharge.
(Aiken, 460 U.S. at 717, 75 L. Ed. 2d at 411, 103 S. Ct. at
1483.) The reason for refusing to place such a burden on the
plaintiff was explained recently by this Court as follows:

"Proof of [intentional discrimination in 
employment] is always difficult. Defendants of 
even minimal sophistication will neither admit 
discriminatory animus nor leave a paper trail 
demonstrating it; and because most employment 
decisions involve an element of discretion, 
alternative hypotheses (including that of simple 
mistake) will always be possible and often 
plausible. Only the very best workers are 
completely satisfactory, and they are not likely 
to be discriminated against - the cost of 
discrimination is too great. The law tries to 
protect average and even below-average workers 
against being treated more harshly than would be 
the case if they were of a different race, sex, 
religion or national origin, but it has 
difficulty achieving this goal because it is so 
easy to concoct a plausible reason for not 
hiring, or firing, or failing to promote, or 
denying a pay raise to, a worker who is not 
superlative." (Riordan v. Kempiners, 831 F. 2d 
690, 697-698 (7th Cir. 1987).)
Under Aikens and any proper interpretation thereof,

Milton could meet his burden of persuasion by demonstrating that 
the articulated reasons for the DCASR's adverse employment
actions were pretext, i.e ., an explanation that did not convey
the motivation for the employment decision. (Mister_v_.— 111 i no is
Central Gulf R .R . Co., 832 F. 2d 1427, 1435 (7th Cir. 1987).)
The District Court found that he had done so. The DCASR claimed 
that Milton was incompetent, and the Court found that this was

18



not true. The DCASR claimed that regulations requiring that 
Milton be given notice of performance deficiencies and an 
opportunity to improve were not followed because they did not 
apply to Milton, but the District Court found that they did 
apply. Nevertheless, the Court found in favor of the DCASR, 
ruling that Milton was fired because of a reason never 
articulated or in any way advanced as the reason for discharge, 
namely, that his supervisor "did not get along with him", and 
the Court saw no evidence that the supervisor's animosity was 
racially motivated. That ruling is directly contrary to the 
Court’s own findings, and improperly places on Milton the 
impossible burden of proving directly his supervisor's 
subjective motivations.

B. Milton’s Evidence And The Court's Findings 
Thereon Mandated A Conclusion That Racial 
Bias Was The Cause of His Discharge __________ _

In the instant case, as he was entitled to do under the 
law, Milton proceeded to meet his burden of persuasion by 
presenting evidence that the ground asserted by the DCASR for 
discharging him, namely, incompetence, was not worthy of 
credence. In order to meet that burden, it was not necessary to 
prove himself the perfect employee; it was enough to show that 
his performance was of sufficient quality to merit continued 
employment. (Flowers v. Crouch-Walker Corp., 552 F. 2d 1277 
(7th Cir. 1977).) Where, as here, the reason relied upon by the 
defendant is found not to warrant dismissal, an inference of

19



improper motivation arises. DeLisstine v. Fort Wayne State 
Hospital and Training Center, 682 F. 2d 130 (7th Cir. 1982), 
cert, denied 459 U.S. 1017, 74 L. Ed. 2d 511, 103 S. Ct. 378 
(1982).

At trial, the DCASR dredged up every instance of real or 
imagined errors in Milton's performance, for the most part 
incidents predating the excellent evaluation he received just 
two months before his discharge. Such acceptance, and indeed 
praise of Milton's work despite claimed errors therein, refuted 

any notion that those errors, even if they occurred, justified 
discharge. (Flowers, supra.) Similarly, Milton proved that the 
subsequent claimed failure to move personnel from a dangerous 
work area was in fact not an error on his part, but on the part 
of the supervisor who failed to tell him of a major change in 
the work to be done, then used that as an excuse to fire him.
As the District Court quite correctly ruled, the conduct 
complained of simply did not constitute good grounds for 
discharging Milton. (See DeLesstine, supra, holding that proof 
that the defendant's claimed ground for dismissal did not 
constitute good cause justified a finding that the action was 
predicated on racial bias.)

Milton presented further evidence of disparate treatment 
in the manner in which he was discharged, which the DCASR 
admitted. Federal statutes and regulations governing 
Probationary employees require not only that they be evaluated 
in accordance with an established appraisal system, but also

20



that they be assisted in improving unacceptable performance, and 
that adverse employment action be taken only after the employee 
has had an opportunity to demonstrate acceptable performance.
(5 U.S.C. §4302; PI. Ex. 7, 8) Vann admitted that he generally 
followed these regulations, but that he did not give Milton the 
opportunity to improve described and provided for in the statute 
and in the agency's regulations. (R. 96-1 at p. 160-161, R. 96-2 
at p. 195) Although the DCASR insisted that these requirements 

did not apply to probationary employees, the District Court 

correctly found that they not only were applicable, but also 
were violated. That conclusion was supported by the fact that, 
unlike other sections of the statute, the provision at issue 
does not exclude probationary employees (See, e .g ., 5 U.S.C. 
§4303); by evidence that the DCASR had in fact promulgated and 
applied the appraisal system mandated by section 4302 and its 
regulations to Milton, a probationary employee (PI. Ex. 4); by 

Vann's admission that regulations required him to counsel and 
assist employees whose performance is substandard (R. 96-1 at p. 

158-161); and by the concern expressed by the DCASR's own 
employees in investigating Milton’s discharge that proper 
procedures were not followed (Def. Ex. 0 at p. 53-54).

The DCASR itself admitted that the written appraisal 
given to Milton on July 29, 1983 would have led him to believe 
that he was doing a good job, and no changes were necessary.
(R. 96-2 at p. 177) The counseling and assistance required by 
the DCASR's own rules simply was not afforded to Milton.

21



Instead, just two months after being told that his work was 
"fully acceptable" and "highly successful” (PI. Ex. 4), without 
any intervening indication of a problem, he was informed that 
that same work was unsatisfactory and he would be terminated as 
a result. (PI. Ex. 5; R. 96-2 at p. 194-195) Such disparate 
treatment was itself discriminatory. Nevertheless, while Judge 
Plunkett acknowledged that regulations were violated, and that 

Milton was denied due process (App. A10), the evidence was 
dismissed with a statement that the Court "did not draw any 
adverse inferences" from the DCASR's failure to afford Milton 
the opportunity afforded others to demonstrate satisfactory 
performance, an opportunity required by its own rules.

The court's summary dismissal of this evidence was 
error. Federal government employers, unlike private employers, 
are not free to operate their employment practices in any way 
that they choose. The DCASR is bound by statute, civil service 
regulations, directives and its own internal procedures which 
require that its employment activities be conducted in a lawful 
manner. The failure to comply with such governing regulations 
(5 U.S.C. §4302; PI. Ex. 7, 8) was strong evidence that the 
reasons advanced were pretexts for intentional discrimination.
As the Supreme Court held in Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252, 267, 50 L. 
Ed. 2d 450, 97 S. Ct. 55 (1977), departure from prescribed 
requirements or procedures is evidence of discrimination. When 
coupled with the "specific sequence of events leading up to the

22



challenged decisions," (id.), including the face that Milton had 
not received any notification that his performance was 
unsatisfactory, and in fact had received a favorable appraisal, 
a powerful circumstantial case of discrimination was made. See, 
e,q., Rosemond v. Cooper Industrial Products, 612 F. Supp. 1105 
(N.D. Ind. 1985) (failure to afford employee guidance or aid in 
improving her performance, as required by employer's own 
policies, evidenced racial bias); Graham v. Bendix Corp., 585 F. 

Supp. 1036 (N.D. Ind. 1984) (departure from defendant’s own 

written policies, treating plaintiff more severely than 
mandated, evidenced discrimination); Hogan v. Pierce, 31 F.E.P. 

Cases 115, 127 (D. D.C. 1983) (failure to follow proper 

procedures was evidence of pretext).
Milton proceeded to rebut every nondiscriminatory reason 

proffered by the DCASR for its employment decisions in the only 

manner available to most Title VII plaintiffs, namely by 

establishing that the proffered reasons were not worthy of 

credence. The District Court found that Milton had met that 

burden. (App. A10) Nevertheless, the District Court denied 

Milton's claim, finding that he was fired because "his 

supervisor did not get along with him", but that there was no 

evidence that the supervisor had "a discriminatory approach or 
thinking or conduct." (App. All)

Contrary to Judge Plunkett's ruling, under Aikens that 

showing was sufficient, since proof that the articulated reason 

for the DCASR's action is not the true reason renders it more

23



likely than not that the action was motivated by racial bias. 
Milton cannot enter the minds of the DCASR’s employees to show 
what motivated their wrongful conduct toward him, and the law 
does not require that he do so. (See Aikens, supra.)
Similarly, Milton cannot, and should not be required to rebut 
speculative "reasons" which were never proffered, such as the 

bare possibility that the conduct was motivated by a 
supervisor's personal dislike for him untinged by considerations 

of the fact that he is black. See Lanphear, supra.
The District Court’s ruling in the instant case is 

contrary to the evidence and its own findings thereon, and its 
decision that discriminatory motivation has not been shown 
accordingly should be reversed and remanded with directions to 
enter judgment for Milton. At the very least, given the 
District Court's professed uncertainty concerning the effect of 
a finding that the articulated reasons were not worthy of 
credence, and the strong likelihood that the Court's ruling was 
based on the lack of direct evidence of racial bias on Vann's 
part, the cause should be remanded with instructions to 
reconsider the decision in the light of the Supreme Court's 
ruling in Aikens that a Title VII claimant may not be required 
to present direct evidence of bias. Certainly remand is 
appropriate in the instant case, where Milton was never 
confronted with, and accordingly had no opportunity to rebut, 
the reason found by the Court to have motivated his discharge.

24



C. In Any Event, The Trial Court's Ruling 
Is Based On Erroneous Factual Findings

The District Court based its ruling that Vann’s conduct 
was not racially motivated on two erroneous findings: (1) that
Vann had hired Milton in the first place, and therefore was not 
biased against him; and (2) that Vann gave Milton a positive 
performance appraisal prior to his discharge, and therefore 
could not have been biased on racial grounds. However, the 
Court overlooked the fact that it was the personnel office, not 
Vann, which determined what candidates were eligible for the 
position. Vann had a position to fill and was presented with a 
list to choose from which contained three names, that of a black 
male (Milton), that of a Korean female (Mrs. Park), and that of 
a male East Indian (Mr. Patel). The fact that Vann chose a 
highly qualified black male from a list of three minority 
candidates for the position is hardly compelling evidence of 
Vann’s freedom from prejudice or bias in his perception of the 
ability of a black person to handle the job, particularly in 
light of the testimony that he perceived those of a different 
race to be less qualified generally.

Judge Plunkett’s further reliance on the positive 
evaluation given in July is premised on an inference that, if 
Vann harbored racial bias, he would have given Milton a poor 
evaluation. However, as Vann himself acknowledged, giving an 
employee a poor evaluation would have allowed him to improve his 
performance, and obligated Vann to work with him and assist him

25



in improving his work. (R. 96-1 at p. 158-163) By giving 
Milton a satisfactory appraisal, Vann could avoid assisting him 
and insure that perceived problems in Milton's performance would 
not be remedied. Certainly such an evaluation is inconsistent 
with Vann's belief that Milton was a "walking joke". Judge 
Plunkett was troubled by this very inconsistency, but resolved 
it by concluding that Vann did not form that opinion until after 
the July, 1983 evaluation. (App. A10) That conclusion was 

wrong. Vann's own testimony was that he had reached that 

conclusion before evaluating Milton. (R. 96-2 at p. 177)
The strong inference of racial bias arising from the 

finding that the DCASR's proffered reason for discharge was 

untrue, and that Milton was not given the opportunity to, or 
assistance in, improving his performance mandated by the DCASR s 

own regulations simply was not dispelled or negated in any way 
by Vann's prior conduct. Vann had no non-minority candidate to 

choose from in filling the position, and the fact that he might 
elect to avoid blatant discrimination by rejecting an obviously 

qualified and pre-approved candidate is not inconsistent with 

the existence of racial bias in perceptions of that candidate s 

work product or the refusal to give him the same opportunities 
afforded other employees. If that were the case, any employer 

could avoid a finding of discrimination in its adverse 
employment decisions simply by pointing to the fact that the 

employee was hired in the first place, and arguing that his 

employer therefore could not possibly be biased.

26



That simply is not, and cannot be the law. Milton was 
entitled to have all of the DCASR's employment decisions about 
him, not just his initial hiring, made without regard to his 
race. The District Court's conclusion that the wrongful 
treatment found to exist in the instant case must have had some 
other basis than race is simply contrary to the evidence, and 

should be reversed.

27



CONCLUSION
Donald Milton carried his burden of persuasion in the 

instant case by demonstrating that the reasons proffered by the 
DCASR for his discharge, as well as its reasons for failing to 
afford him an opportunity to improve his performance, were not 
true. That is all the law requires of him, and he is not 
required to present direct evidence of discrimination, nor to 
rebut any possible reason for his discharge other than that 
articulated by the DCASR. The District Court's conclusion that 
Milton, while successfully rebutting the reasons advanced for 
the DCASR's employment decisions, had nonetheless failed to 
prove that the DCASR's conduct was motivated by racial bias is 
contrary to the evidence and the Court's own findings and should 
be reversed. At the very least, the cause should be remanded 
with instructions to review the evidence under the standard 
mandated by the Supreme Court, which prohibits basing a Title 
VII determination on the absence of direct evidence of 
discrimination, or to afford Milton an opportunity to rebut the 
unarticulated reason found by the Court to have been the true 
reason for his discharge.

Of Counsel:
Julian L. Chambers 
Charles Stephen Ralston 
Gail J. Wright 
LEGAL DEFENSE FUND 
NAACP Legal and 
Educational Fund, Inc.

99 Hudson Street
New York, New York 10013
(212) 219-1900

Respectfully submitted,
Daniel I. Schlessinger 
Hugh C. Griffin 
Diane I. Jennings 
LORD, BISSELL & BROOK 
115 S. LaSalle Street 
Chicago, Illinois 60603 
(312) 443-0600
Attorneys for 
Plaintiff-Appellant 
Donald L. Milton

28



APPENDIX



STATEMENT PURSUANT TO CIRCUIT RULE 30

Pursuant to Circuit Rule 30(c), counsel for Plaintiff-Appellant 

Donald Milton states that all of the materials required by Circuit 

Rule 30(a) and (b) to be included in the appendix to appellant's 

brief are included herein.

LORD, BISSELL & BROOK

By:
Diane I.

Attorneys for Plaintiff-Appellant 
Donald L. Milton

A-l



pHt ̂ iUt 
ftV. t /H * )

MOTION:
USio/J + 1 U * l.LQ13JL&23\

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS, E t »TERN DIVISION

^  t & L u J L  £  ^
Hint of Assi| 

Judge ot M agist

Sitting Judge/ Mag If Other 
Thin Assigned Judge/Mag

Case N u m b e r

Case
Title

f V c  f f 4 2 -
Date

/ L l l  l t terfj 7 . / 'ff'7
L'

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3d-party 
plaintiff, and (b) state briefly the nature of the motion being presented]

AUG 3 1 19CT

WET ENTRY: (The balance o f this form is reserved for notations by court staff.)

| x ] Judgment is entered as follows: (2) | | [Other docket entry:}

l»rthe defendants' and against the plaintiff, reasons for decision are contained in

court's oral opinion in open court.

Filed motion of [use listing in “MOTION” box above}.

Brief in support of motion dtK__________ _________

Answer brief to motion due______________________
H e aring  
Ruling on-

. Reply to answer brief due. 

_________set for_________

Status hearing o  continued to | | set for | | reset for

Pretrial conference | | held | | continued to [ | set for £

' j set for [ j reset for_____________________________

reset for.
. a t . 

.a t .

Trial

Bench trial ( ( jary trial |  ) Hearing held and continued to .

This case is dismissed I without

D
I with prejudice and without costs j ] by agreement 

| | FRCP 4(j) (failure to serve) [ [ General Rule 21 (want of prosecution) [ | FRCP41(a)(l) |

(For further detail see | | order on the reverse of d  order attached to the original minute order form.)

pursuant to

FRCP 41 (a)(2)

No notices required.

Notices mailed by judge's staff. 
Notified counsel by telephone. 

Docketing to mau! notices.
£ Ma.l AO 45C fcrT

si CoP> to judge magistrate

courtroom 
deputy’s 
initials

tic

fcv, V

~ G j

Date/time received in 
central Clerk’s Office

3 ~
AUG 2 8 1987

AUG-g-B
N L f

A - 2



AO <50 (Rev. 5/85) J u d s ™ " 'ln •  Civil Ct»e •

d o c k e t e d
AUG 88 1987

<

Pntteb Jitfatee district (Em.rt
NORTHERN DISTRICT OF ILLINOIS 

Eastern Division v>

M il t o n

V.

JUDGMENT IN A CIVIL CASE

W e in b e rg e r ,  e t  a l .
CASE NUM BER: 84 C 8892

D Jury Verdict This action cam e before the Court for a trial by jury. The issues have been tried and the jury  
has rendered its verdict.

ifDecision by Court. This action cam e to trial or hearing before the Court. The issues have been tried or 
heard and a decision has been rendered.

IT IS ORDERED AND AD JU D G ED  judgment is entered for the defendants’ and against the 
plaintiff, reasons for decision are contained in the court's oral opinion in open court

»



Minute Order Form
((«*. 4/*r«) culing mtn. for reconsideration

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

Ita of Assigned 1 Sltt,n* Mag If Other 
judge or Magistrate âui rlU T lK eC t J Than Assigned Judge/Mag.

Case Number 84 C 8892 October 22, 1987 9:15

Case
Title

Donald li. Milton v Mr. Casper Weinberger

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, Id-party 
u u‘ ' plaintiff, and (b) state briefly the nature of the motion being presented]

lain t i f f * s motion for reconsideration is denied for the reasons stated in open

Filed motion of (uk  listing in “MOTION” box above} 

Brief in snppoet o f motion due 

Aniwet brief to motion duej j Hearing
Ruling

Reply to answcT brief due. 

__________ let for_________ . a t .

Status hearing I I held ( I continued to I I set for | 1 moot fee ____

Fret rial conference | [ held j  f continued to  I I set for j | re—t for.

Trial 1 l « » f o r  |  I w ort far----------------------------------------------------------- ---

. a t.

L e t t .

. a t .

Bench trial f ) Jury trial _ ] | Hearing held and continued to . . a t .

This case is dismissed j 1 without I I with prejudice and without costs | j by agreement ( pursuant

FRCF ♦(j)(faih»re to serve) | | General Rule 21 (want'of prosecution) [ | FRCP 41(a)(1) | j FRCP 41 (a)(2)

(For further detail see I

V

No notices required.

Notices mailed by judge's staff. 

Notified counsel by telephone. 

Docketing to mail notices.

Mail AO ajOfc iT ,

Copy to judge magistrate

courtroom
deputy**
initials /

d L

.......... .................. f - . —— T------

9 K 8 «  iZ 10 0  i/ 4  fad
&0CT i- 3 »a87

1 flfrrrmr-
Oate/time received in 
central Clerk's Office

number
of notices

mailing dpty. 
initials



IN THE UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

DONALD L. MILTON,
Plaintiff,

vs.
CASPER WEINBERGER,
etc., et al.,

Defendants.

)
)) Docket No. 84 C 8892
| Chicago, Illinois 
; August 27, 1987 
j 11:00 o'clock, a.m.
)
)
)

TRANSCRIPT OF PROCEEDINGS 
BEFORE HONORABLE PAUL E. PLUNKETT

PRESENT:

For the Plaintiff: MR. DANIEL I. SCHLESSINGER
115 S. LaSalle Street 
Chicago, Illinois

For the Defendants: MR. FREDERICK H. BRANDING
Asst. United States Attorney 
U.S. Courthouse, Chicago, II.

Court Reporter: Joseph Betz 
U.S. Courthouse 
Chicago, II.



2

THE CLERK: 84 C 8892, Milton vs. Weinberger.
Decision on trial.

MR. SCHLESSINGER: Good morning, your Honor. Daniel
Schlessinger for the plaintiff.

MR. BRANDING: Good morning, Judge. Frederick Brand­
ing on behalf of defendants.

THE COURT: Well, why don't you folks be seated. I
am going to read, as I told you I would, an opinion. I will say 
before I begin this that all cases under Title VII and 
accompanying statutes on racial discrimination, indeed, any 
discrimination, give any finder of fact a certain difficulty, 
because a court is trying to devine, almost, the intent of one 
actor in a story.

I found this case particularly difficult to deal 
with. I have reviewed all of the file, I have reviewed the pre­
trial order, the stipulations, and paid close attention to the 
closing arguments by both sides.

I conclude as follows:
I will find as a fact all of the stipulations 

of uncontested facts which the parties have given me in the pre­
trial order. I will not read them into the record, but they 
consist of nine stipulations contained on Pages 1, 2 and 3 of 
the pretrial order-

The case as presented, at least as I found, 
demonstrated that the plaintiff had shown a prima facie case.

A-6



3

The government, the United States Department of Defense, and 
the other defendants, came forward with a proposed legitimate 
reason for the discharge of Mr. Milton, and Mr. Milton, both in 
his case in chief and in rebuttal, attempted to demonstrate 
that that legitimate reason was pretextual.

The important facts as I find them in the case
are as follows:

First, Mr. Vann, the supervisor of Mr. Milton, 
was the person who actually hired Mr. Milton and the person 
who supervised, or at least was responsible for Mr. Milton 
throughout his employment, which lasted some ten or eleven month

Mr. Milton was at all times a probationary 
employee under the applicable federal rules and regulations, 
and was entitled to be fired for any reason whatsoever, of 
course not including discrimination. But he was not a person 
who could only be fired for cause. He could be fired for any 
reason that was legitimate and not discriminatory.

Mr. Vann as the supervisor selected Mr. Milton 
from several candidates, and of at least the ones he interviewed 
Mr. Milton was the only black candidate. So it is difficult to 
see initially that Mr. Vann demonstrates any discrimination, 
at least as the scenario begins.

Mr. Vann testified that he was not particularly 
pleased with the plaintiff's performance during the course of 
the ten or eleven months that Mr. Milton was there, and he

A-7



4

attempted to set forth reasons as to why he was not pleased. 
Before I get to those, I have to say I will accept Mr. Vann's 
testimony, which is contested by Mr. Milton, that there was a 
meeting in April at which Mr. Vann voiced some of his concerns 
with Mr. Milton's performance.

I make that finding largely because in judging 
credibility I believe Mr. Vann did that; I note it is not properl 
handled on the employee card but I discount that, and, as I say,
I will accept that there was a meeting at which Mr. Vann pointed 
out areas in which Mr. Milton could improve.

It is uncontested that Mr. Vann gave an extremly 
qood appraisal or evaluation of Mr. Milton in July, exactly,
July 29th, 1983, which is Plaintiff's Exhibit 4. In a sense 
this is a two-edged sword for the plaintiff. It certainly shows 
that at that point in time Mr. Vann perceived Mr. Milton to be 
doing a decent if not a good job, and Mr. Van gave a meaningful, 
favorable statement of Mr. Milton's work.

It also, however, tends to undercut somewhat the 
argument that Mr. Vann based his decisions on discrimination, 
since if Mr. Vann was a person with that bent it would be hard 
to imgine that he would give this kind of a review to a 
probationary employee.

So, as we reach the end of July, I do not see 
that I am persuaded that at that point at least Mr. Vann is 
engaged in any sort of discrimination against Mr. Milton. As I

A-8



5

say, he hired him, he was his supervisor, he met with him in 
April to give him some corrective and constructive comments, and 
he gave him a good review.

The problems apparently with Mr. Milton's em­
ployment became significant by early October. Mr. Vann became 
upset with what he perceived was a failure by Mr. Milton to 
properly perform his tasks of planning for the computer room 
or the -- I have forgotten the exact name of that room —

MR. BRANDING: ADP, Automatic Data Processing.
THE COURT: Right. Mr. Van perceived that Mr. Milton

as a planner had actually left employees in a construction area, 
and Mr. Milton rebutted that by showing a letter which at least 
somewhat demonstrated that it was really Mr. Vann, not Mr.
Milton, who made the change that led to this problem, and I am 
prepared to find that Mr. Vann was essentially mistaken and 
wrong in his criticism of Mr. Milton for this job. But that is 
not tantamount to finding discrimination.

I will turn now to some of the points that Mr. 
Schlessinger made, because he gave a splendid closing argument 
and I have to deal with some of these. It is true that Mr. Vann 
apparently called Mr. Milton a walking joke, and, indeed, Mr. 
Vann repeated that testimony on the stand, that he had said that, 
and apparently he feels that way.

Mr. Milton's counsel argues that this shows 
that Mr. Vann is untruthful because no one who perceived another

A-9



6

as a walking joke would give him any sort of a good evaluation 
after six months of work to encourage him, since you don't 
encourage someone who has no redeeming abilities and no meaning­
ful way to improve.

The problem with the argument is that Mr. Vann -- 
we're uncertain as to when Mr. Vann formed that judgment, and 
I conclude from the evidence that Mr. Vann, while annoyed and 
unhappy with Mr. Milton from time to time, did not really come 
to this conclusion until after the evaluation.

Mr. Milton presented two witnesses at DCASR who 
said that Mr. Milton did a good job, and I accept their testi­
mony as true. They were not Mr. Milton's supervisors, however, 
and they were in less than a perfect position to judge the 
quality of his work. Their testimony was more that they had 
no problems with him personally and that they didn't see any 
problems with the work that he had done for them. But those 
are on two limited jobs.

Mr. Vann failed to follow some of the government 
regulations, but I don't draw any adverse inference from that.

In short, what I am finding is that if this were 
a case of discharging an employee without cause and without due 
process, that the government would lose and that Mr. Milton 
would win, because I don't think there was a particularly —  the 
problems that Mr. Vann had I doubt would ever rise to a for-cause 
dismissal, particularly in light of this record.

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The difficulty, however, for me, is that the 
government is not defending that kind of a case; they are 
defending a claim of discrimination by Mr. Vann.

Mr. Milton was a probationary employee. Mr.
Vann, and I accept his testimony, was upset by Mr. Milton's —  
the way in which he dealt with several of his projects, and he 
was upset by the way Mr. Milton handled criticism.

I conclude that while the plaintiff has shown 
that many of Mr. Vann's complaints were not so serious as to 
permit a for-cause termination here, that I cannot and I am not 
persuaded that the plaintiff was discharged because of a dis­
criminatory approach or thinking or conduct by Mr. Vann.

Accordingly, after a good deal of thought I will 
enter judgment for the defendants and against the plaintiff, and 
that will conclude the findings in the case.

As I say, it was a difficult, difficult case, 
and, Mr. Schlessinger, I am not all-knowing, and so if you 
perceive after getting this transcript that there are some areas 
that you can point out to me where I am mistaken, I not only 
will permit but will welcome a motion to reconsider this with 
your additional thinking on the questions.

MR. SCHLESSINGER: Thank you. I appreciate that
opportunity, your Honor.

THE COURT: Thank you both. The case was well
presented by both sides.

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8

MR. BRANDING: Judge, if I may just for the record
make a comment to compliment Mr. Schlessinger. As court- 
appointed counsel, I think he did a superb job. He did a very 
good job as an advocate. He was tough, but, at the same time, 
he was always fair. There was no unreasonableness to any of his 
positions.

THE COURT: As I said, it was a spelendid closing 
argument, and I wish there were ways to be certain, absolutely 
certain, but in life there is no way to, and it is my best 
judgment. He gave me an awful lot to think about.

As you know, I had to push this over, because 
I thought about it all weekend and still wasn't certain how 
this case should come out.

MR. BRANDING: That is certainly the dilemma that
every trier of fact has to face in every case.

THE COURT: Yes, but I have them all the time. I have
never had one that —  I have had a few, but this is a rare 
instance where I had a lot of trouble with it.

Mr. Milton, I know you’re very disappointed that 
you have lost this case. As I told your lawyer, I will be happy 
to look at it again. As I tried to tell you in that opinion, 
while I didn't find that Mr. Vann discriminated against you, I 
am also not applauding his decision to terminate you.

I think in some ways he must be —  at least that 
is the inference I draw —  a rather impatient man who at times is

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difficult to get along with, and it is really -- it leaves 
you without a remedy, in my view, because you see him as a 
discriminator.

I didn't have the ability to protect you as a 
permanent employee but only a probationary one.

All I can tell you, Mr. Milton, is that I did 
my best. I found from the evidence, and I'll say on the record, 
that I think you are a qualified engineer, and I am sorry that 
the period with the government was not more satisfactory to you. 
Maybe there will come a time when the government —  and, I don't 
know, maybe the government in light of some of the things I have 
said here might take another look at you, because I think you 
do a good job, and I didn't find that you didn't. I just 
couldn't find discrimination by your boss.

Thank you, folks.
MR. SCHLESSINGER: Thank you for your careful con­

sideration, your Honor.
MR. BRANDING: Thank you, Judge.

C E R T I F I C A T E

Transcript above certified true and complete

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IN THE UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

DONALD L. MILTON, )
)Plaintiff, )
)

vs. )
)CASPER WEINBERGER, )

et al., )
)Defendants. )

Docket No. 84 C 8892
Chicago, Illinois 
October 22, 1987 
9:20 o'clock, a.m.

TRANSCRIPT OF PROCEEDINGS 
BEFORE HONORABLE PAUL E. PLUNKETT

PRESENT:

For the Plaintiff: MR. DANIEL I. SCHLESSINGER
Lord, Bissell t Brook 
Chicago, II.

For the Defendants: MS. EILEEN KARUTZKY
Asst. United States Attorney 
U.S. Courthouse, Chicago, II.

Court Reporter: Joseph Betz 
U.S. Courthouse 
Chicago, Illinois

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THE CLERK: 84 C 8892, Milton vs. Weinberger. Ruling.
MS. MARUTZKY: Good morning, your Honor. Eileen

Marutzky for Defendant Weinberger.
MR. SCHLESSINGER: Good morning, your Honor. Daniel

Schlessinger representing the plaintiff.
THE COURT: Good morning. I reviewed what you filed,

Mr. Schlessinger, and you touched on a point that caused me 
a problem in the decision, that is, if I wasn't fascinated with 
the government's legitimate explanation what inference is to 
be drawn, and I gave that a lot of thought, and I don't change 
my opinion, Mr. Schlessinger.

If I'm not convinced that the reasons espoused 
by the government constitute a good ground to discharge him,
I still am convinced that the actual reason for discharging 
him was because the boss, rightly or wrongly, simply didn't 
get along with him, and I see no discrimination. So I am 
going to deny the motion to reconsider, and perhaps someday 
I'll get a definitive answer on the question.

MR. SCHLESSINGER: We thank the Court very kindly
for its careful consideration.

MS. MARUTZKY: Thank you, your Honor.
THE COURT: All right.

C E R T I F I C A T E
Transcript above certified true and complete