Eddie L. Rainey v. United Parcel Service, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 26, 2013 *
Decided November 26, 2013
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐1849
EDDIE L. RAINEY,
Plaintiff–Appellant,
v.
UNITED PARCEL SERVICE, INC.,
Defendant–Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 10 C 4669
Charles P. Kocoras,
Judge.
O R D E R
Eddie Rainey applied for temporary work as a truck driver for United Parcel
Service in five different years from 1997 through 2011. He was hired in three of those
years yet still sued UPS claiming that he was turned down the other times because he is
black. The district court granted summary judgment for UPS, and Rainey appeals. We
affirm the judgment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and record.
See FED . R. A PP . P. 34(a)(2).

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No. 13‐1849 Page 2
Except as noted, the facts are undisputed. UPS first hired Rainey in 1997 as a
temporary driver based at the company’s facility in Hodgkins, Illinois. He left that job
after a month and then worked as a driver for other employers before submitting a
résumé in 2006 for another temporary position at the Hodgkins facility. UPS does not
hire based on a résumé alone, and since Rainey did not complete the required
application, he was not considered for employment.
Rainey applied again in 2007 for a temporary position at the Hodgkins facility.
This time he submitted an application but did not explain why he left a job with one of
his previous employers, even though that information was requested on the form. UPS
interviewed Rainey despite the omission, but still he refused to explain why his job with
the other employer had ended. UPS automatically disqualifies an applicant who
witholds the reason for leaving a previous job, and thus Rainey was not hired.
Rainey tried once more in 2008 for a temporary job at the Hodgkins facility. This
time he answered all of the questions on the application and was added to the pool of
qualified candidates waiting for the next step in the hiring process, a driving test.
Rainey also had applied for a different job with UPS at its facility in Addison, Illinois,
and he was hired for that position in April, less than four weeks after his interview for
the Hodgkins job. At his deposition Rainey testified that he had applied to work at the
Addison facility only because he was told by UPS’s human‐resources department that
the position he interviewed for at the Hodgkins facility no longer was available. Yet the
company’s records show that Rainey had applied for the Addison job in mid‐March and
that UPS’s automated system for tracking applicants retained him in the Hodgkins
candidate pool until after he was hired at Addison.
Rainey voluntarily left that job a few months later and filed a charge with the
Equal Employment Opportunity Commission claiming that in 2006, 2007, and 2008 he
was turned down for employment with UPS because of his race. Rainey received a
right‐to‐sue letter from the EEOC and, in July 2010, sued UPS under 42 U.S.C. § 1981
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐2(a)(1). (Rainey also
named as a defendant a human‐resources employee for UPS. But she was never served
with process and thus was never made a party to the lawsuit. See FED . R. C IV . P. 4;
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999); United States v.
Ligas, 549 F.3d 497, 500 (7th Cir. 2008). We need not mention her further.) The district
court initially dismissed the suit on the understanding that Rainey’s discrimination
claims were foreclosed by his failure to identify them as assets in a Chapter 13
bankruptcy case, but we vacated the dismissal and reinstated his complaint after the

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No. 13‐1849 Page 3
bankruptcy judge allowed Rainey to amend his bankruptcy schedules and make proper
disclosure. See Rainey v. United Parcel Service, Inc., 466 Fed. App’x 542 (7th Cir. 2012). In
2011, while that appeal was pending, Rainey again applied for a driver position at
UPS’s Addison facility and was hired.
On remand, the district court granted summary judgment for UPS on all claims.
The court reasoned that the Title VII claims based on Rainey’s applications in 2006 and
2007 were untimely because the hiring decision occurred more than 300 days before
Rainey filed his EEOC charge. The court also concluded that the § 1981 claim for 2006
was untimely. The court then analyzed the § 1981 claim for 2007 and the § 1981 and
Title VII claims for 2008 under the indirect method of McDonnell Douglas Corp. v. Greene,
411 U.S. 792, 802–04 (1973). See Bates v. City of Chicago, 726 F.3d 951, 955 (7th Cir. 2013)
(explaining that McDonnell Douglas framework applies to § 1981 as well as Title VII).
With respect to the 2007 job application, the court concluded that Rainey had failed to
establish a prima facie case of discrimination because he never disputed that, in effect,
he had disqualified himself by refusing to explain why his job with the previous
employer had ended. For 2008, on the other hand, the court reasoned that Rainey had
established a prima facie case of race discrimination because he did not get the job he
initially applied for at the Hodgkins facility. Nevertheless, the court continued, UPS
rebutted the inference of discrimination by offering an uncontested, nondiscriminatory
reason for not giving Rainey that job: the company already had hired him for the job he
sought at the Addison facility.
Before addressing Rainey’s arguments, we note that both UPS and the district
court misunderstood the statute of limitations for § 1981 claims involving employment
discrimination. The four‐year statute of limitations that the court implicitly relied upon,
see 28 U.S.C. § 1658(a), applies only to claims based on conduct occurring after the
formation of an employment contract. See Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 382 (2004); Dandy v. United Parcel Services, Inc., 388 F.3d 263, 269 (7th Cir. 2004).
Rainey alleges that unlawful discrimination prevented the making of an employment
contract, and for claims of discrimination in hiring arising in Illinois, a two‐year statute
of limitations governs. See Dandy, 388 F.3d at 269 n.4; Jenkins v. Vill. of Maywood, 506 F.3d
622, 623 (7th Cir. 2007); Smith v. City of Chicago Heights, 951 F.2d 834, 836 n.1 (7th Cir.
1992); cf. Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008)
(state’s one‐year statute of limitations period for personal injury torts applies to § 1981
failure‐to‐hire claims). All of the conduct underlying the § 1981 claims had occurred by
the end of April 2008, and Rainey did not file his complaint until July 2010. Thus each of
his failure‐to‐hire claims is barred by the applicable two‐year statute of limitations. And

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No. 13‐1849 Page 4
since Rainey does not disagree with the district court’s conclusion that his Title VII
claims for 2006 and 2007 were untimely, this appeal concerns only the Title VII claim for
2008.
For that claim, Rainey contests the grant of summary judgment, but we have
trouble identifying the basis of his challenge. As best as we can tell, Rainey asserts that
there is a genuine issue of material fact and that the district court failed to consider all of
his evidence. He maintains that he was qualified for the 2008 position at Hodgkins and
that UPS’s discriminatory motive is evidenced by the fact that, from 2007 to 2008, the
company hired three white applicants for its Hodgkins facility, while turning down
four black applicants (all seven applicants had worked for Roadway Express, one of
Rainey’s former employers). But the three white applicants named by Rainey—hired in
June 2007, September 2008, and 2010—were not hired to fill the position he interviewed
for in March 2008. And no adverse inference can be drawn from the company’s rejection
of the four black applicants named by Rainey; the evidence at summary judgment
shows that in 2007 two other black applicants who had worked for Roadway Express
were hired at Hodgkins, as were 46 other black drivers during 2007 and 2008.
Moreover, Rainey’s attempt to identify a factual dispute is meritless because he cannot
evade that UPS offered a nondiscriminatory reason for not hiring him at
Hodgkins—that the company had already hired him at Addison—and “[i]rrelevant or
unnecessary facts to not deter summary judgment, even when in dispute.” Harney v.
Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).
Rainey also argues that the district court should have recruited counsel to assist
him. He made this same contention in his earlier appeal, and we made clear that “we
would not conclude that the district court abused its discretion in denying Rainey’s
motion for appointment of counsel.” Rainey, 466 Fed. App’x at 545. Rainey did not
renew his request for counsel after remand, and a district court is not required to
appoint counsel sua sponte. See Bracey v. Grondin, 712 F.3d 1012, 1018 (7th Cir. 2013);
Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc).
AFFIRMED.

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