In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2823
ROBERT GREEN,
Plaintiff‐Appellant,
v.
AMERICAN FEDERATION OF TEACHERS / ILLINOIS FEDERATION OF
TEACHERS LOCAL 604,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 1162 — Charles R. Norgle, Judge.
____________________
ARGUED JANUARY 10, 2014 — DECIDED JANUARY 23, 2014
____________________
Before FLAUM and EASTERBROOK, Circuit Judges, and
GRIESBACH, District Judge.*
EASTERBROOK, Circuit Judge. In 2010 Aurora East School
District 131 fired Robert Green from his position as a teacher.
He asked his union to pursue a grievance under a collective
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 13‐2823
bargaining agreement; the union refused. He also asked the
union to represent him in a suit against the school district
under the Teacher Tenure Act, 105 ILCS 5/24‐12; the union
said no to that request as well. Green sued on his own, won,
and has been reinstated. This federal suit contends that his
union abandoned him because of his race, violating the Civil
Rights Act of 1964, which applies to unions as well as to em‐
ployers. 42 U.S.C. §2000e–2(c).
Green, who is black, contends that the union has repre‐
sented comparable white employees in grievance proceed‐
ings and litigation under the Tenure Act. He also maintains
that the union retaliated against him because he had op‐
posed earlier discrimination. Retaliation is forbidden by
§2000e–3(a); this provision applies to labor organizations
and employers alike. The union told Green in writing that,
because he sued it (and its officers) over other actions, it
would no longer take his side in dealings with the school
district. Green maintains that those earlier disputes con‐
cerned race discrimination, making the union’s current
stance an example of retaliation against a person “because he
has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an inves‐
tigation, proceeding, or hearing under this subchapter.” Ibid.
Green also contends that the union discriminated against
him because of his sex; that contention is undeveloped, and
we do not mention it again.
The district judge called Green’s evidence “conclusory”
without explaining why. 2013 U.S. Dist. LEXIS 106610, *2
(N.D. Ill. July 24, 2013). But then the judge did not need to,
because he also thought that Green could not succeed even if
No. 13‐2823 3
the union had blatantly discriminated and handed its victim
an engraved admission. The National Labor Relations Act
does not apply to employees of state or local government, so
the union did not have a duty of fair representation as a mat‐
ter of federal law. The district court also concluded that Illi‐
nois law does not require teachers’ unions to represent
teachers by filing grievances under a collective bargaining
agreement or suits under the Tenure Act. As the judge saw
matters, a union cannot be liable under Title VII unless it
first violates a duty created by statute or contract. The judge
wrapped up: “Because Green fails to meet his prima facie
burden to establish that the Union breached the CBA or
owed a duty of fair representation to him, the Court need
not address whether the Union had any discriminatory ani‐
mus.” Id. at *11. The district court granted summary judg‐
ment to the union before discovery commenced.
Neither §2000e–2(c) nor §2000e–3(a) makes anything turn
on the existence of a statutory or contractual duty violated
by the act said to be discriminatory. The former section for‐
bids discrimination by any labor organization, and the latter
forbids retaliation against a person who has asserted rights
under Title VII or supported another person’s assertion of
rights. The district court did not analyze the language of ei‐
ther section. Nor did it recognize that the application of Title
VII to employers does not depend on a statute or contract
outside of Title VII. If a person applies for work and is re‐
jected on account of race, the employer has not broken a con‐
tract or violated any statute (other than Title VII itself), yet
no one doubts that the victim can recover under Title VII.
And if an employer fires someone on account of race, again
it does not matter whether a contract has been broken. Oth‐
erwise Title VII would not apply to at‐will employment.
4 No. 13‐2823
Nothing in the text or genesis of Title VII suggests that
claims against labor organizations should be treated differ‐
ently. Labor organizations were included when Title VII was
enacted in 1964 in part because some states had laws author‐
izing (even requiring) employers and unions to discriminate
against blacks. Many unions had negotiated collective bar‐
gaining agreements under which certain jobs were allocated
to white workers and others to black workers, or workers of
different races were paid different wages for the same tasks.
On the district court’s understanding of Title VII, these stat‐
utes and contracts would foreclose the possibility of relief
against unions. Yet a principal objective of the federal statute
was to require labor organizations to disregard those stat‐
utes and contracts and to end racial differences in treatment.
The earliest decisions under the Civil Rights Act of 1964
arose from clashes between state laws favoring or command‐
ing segregation and the new federal prohibition. See, e.g.,
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241
(1964); Katzenbach v. McClung, 379 U.S. 294 (1964). In many
other cases, courts directed unions and employers to ignore
state statutes and collective bargaining agreements that au‐
thorized race discrimination in employment. See, e.g., Taylor
v. Armco Steel Corp., 429 F.2d 498 (5th Cir. 1970); United States
v. Electrical Workers, 428 F.2d 144 (6th Cir. 1970); United States
v. Sheet Metal Workers, 416 F.2d 123 (8th Cir. 1969). If some
duty external to Title VII is essential to a prima facie case,
however, all of these decisions must be wrong.
The district court’s approach has a further problem. It
would make Title VII pointless. Unless a contract, or some
other statute, gave the plaintiff an entitlement, Title VII
would do nothing. Yet if a union has, and violates, such a
No. 13‐2823 5
duty, then a remedy may be had under that statute or con‐
tract. Title VII would be otiose, and claims of discrimination
against unions would be either unavailing or unnecessary.
Instead of locating its extrinsic‐duty requirement in the
text or history of Title VII, the district court drew it from
Greenslade v. Chicago Sun‐Times, Inc., 112 F.3d 853, 866 (7th
Cir. 1997), which states that to have a prima facie case of dis‐
crimination against a labor union a worker must show that:
“(1) the [employer] violated the collective bargaining agree‐
ment between the union and the [employer]; (2) the [union]
breached its own duty of fair representation by letting the
breach go unrepaired; and (3) that some evidence indicates
animus against [a protected class] motivated the [union].”
This passage was dictum; Greenslade lost because he could
not show discrimination, rather than for inability to prove
the violation of an extrinsic duty.
The passage also conflates Title VII with the elements of a
hybrid breach‐of‐contract / duty‐of‐fair‐representation claim
against an employer and union under 29 U.S.C. §185. The list
in Greenslade restates the ingredients of a hybrid con‐
tract/DFR suit. See, e.g., Vaca v. Sipes, 386 U.S. 171 (1967).
Greenslade got the language from Bugg v. Allied Industrial
Workers Local 507, 674 F.2d 595, 598 n.5 (7th Cir. 1982), which
expressly attributed it to Vaca and other hybrid contract/DFR
opinions. This approach does not bear any evident relation
to Title VII, and we now withdraw the language.
When the Supreme Court established the elements of a
Title VII prima facie case in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), it did not include any element that de‐
pended on breaking a contract. In the 40 years since McDon‐
nell Douglas, courts regularly have restated or modified the
6 No. 13‐2823
elements to cover new situations, and members of this court
have suggested that the approach today causes more prob‐
lems than it solves. See, e.g., Coleman v. Donahoe, 667 F.3d
835, 862–63 (7th Cir. 2012) (concurring opinion speaking for
the entire panel). A court of appeals is not authorized to ab‐
jure a framework that the Supreme Court has established,
but we also are not authorized to add to that framework in a
way that causes Title VII as administered to include ele‐
ments missing from Title VII as enacted. A claim against a
labor organization under §2000e–2(c)(1) or §2000e–3(a) does
not depend on showing that either the employer or the un‐
ion violated any state statute or contract. Such a requirement
cannot properly be added as part of the prima facie case.
If the union would have processed Green’s grievance or
represented him under the Tenure Act had he been white—
or had he refrained from complaining about other discrimi‐
natory episodes—then the union violated Title VII. On re‐
mand, the district court should allow discovery bearing on
those issues and should not be quick to condemn as “conclu‐
sory” or “self‐serving” any affidavit Green files in an effort
to satisfy his burden. See Payne v. Pauley, 337 F.3d 767 (7th
Cir. 2003); Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir.
2013).
VACATED AND REMANDED