                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1686

A HMAD M ILAM , et al.,
                                                Plaintiffs-Appellants,
                                  v.

D OMINICK’S F INER F OODS, INC., et al.,

                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 03 C 9343—Joan Humphrey Lefkow, Judge.



   A RGUED N OVEMBER 6, 2009—D ECIDED D ECEMBER 7, 2009




  Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
  P OSNER, Circuit Judge. This employment discrimination
suit, filed in 2003, pits six black produce clerks at a
Dominick’s grocery store in Chicago against their em-
ployer. The plaintiffs joined their union as a defendant
too, but their only claim against it that is distinguishable
from their claim against Dominick’s—that the union
had shirked its duty to the plaintiffs under its collective
bargaining agreement with their employer—was aban-
2                                               No. 09-1686

doned in the district court. The plaintiffs’ effort to revive
it in their reply brief in this court comes too late.
  The plaintiffs argue that in 2001 and 2002 Dominick’s
discriminated against them on racial grounds when it
classified two white women as produce clerks without
proper notice that would have enabled the plaintiffs
to claim hours from the women (that is, to work during
the women’s assigned hours instead of them) because
the women had less seniority than they. Every week,
Dominick’s posts a production schedule listing how
many hours each employee in a particular classification,
such as produce clerk, is scheduled to work during the
week. A produce clerk who notices that a less senior
produce clerk is scheduled to work that week can claim
his or her hours, if the senior clerk wants to work
more hours. This is a variant of the “bumping” rights
frequently conferred by collective bargaining agree-
ments. See, e.g., Wilbert v. Commissioner, 553 F.3d 544
(7th Cir. 2009).
   One of the white women was offered a promotion
to produce clerk and accepted it, but then changed
her mind, preferring to remain a salad-bar clerk. In the
meantime, however, her promotion had been recorded in
Dominick’s corporate records. No one noticed the mis-
take. She continued working in the salad bar, though
apparently she was seen from time to time in the produce
section; whether she was actually working there is un-
clear. The plaintiffs argue that Dominick’s failure to
list her in the weekly production schedule as a produce
clerk prevented them from claiming her hours. That is a
No. 09-1686                                                3

frivolous argument. She was not a produce clerk, and
had no hours as a produce clerk to be claimed. Had she
been erroneously listed on the weekly production
schedule as a produce clerk and a senior produce clerk
had tried to claim her hours, the error would quickly
have been discovered.
   The other woman was in fact reclassified as a produce
clerk when her duties as a bulk clerk were phased out, but
for eighteen months after the reclassification her name
was not moved from the bulk-clerk section of the produc-
tion schedules to the produce-clerk section above it. The
plaintiffs must have seen her working as a produce
clerk and known she was junior to them because she’d
just started doing that work. So had they been interested
in claiming her hours, they would have looked for her
name on the production schedule and either not seen it
in the produce-clerk section of the schedule or seen it in
the bulk-clerk section and either way would have
known that something was fishy and complained.
Probably none of the plaintiffs was interested in claiming
hours, though this is not certain because after the
mistake was corrected and the woman’s hours were
listed in the produce-clerk section of the schedule,
three of the six plaintiffs did claim some of her hours.
   Dominick’s had moved for summary judgment in 2006.
The motion, denied the following year (the judge had
granted it earlier but then decided to reconsider it), should
have been granted forthwith. The woman erroneously
listed in company records as a produce clerk received
no benefit at the expense of the plaintiffs, or anyone else,
4                                               No. 09-1686

from the mistake; there was no conceivable discrimina-
tion in her favor. The other woman may have received
a benefit from the placement of her name in the wrong
section of the production schedule, because she might
have lost some hours had the mistake been discovered
earlier. So here were the glimmerings of a discrimination
claim, since she was white and a woman and the plain-
tiffs were black men. But Dominick’s presented evidence
that the failure to list her hours in the right place on the
production schedule was an innocent mistake, and the
plaintiffs presented no rebuttal. If a defendant presents
evidence of a noninvidious reason for the employment
action of which a plaintiff is complaining, the plaintiff
can defeat summary judgment only by showing that
the reason given by the employer was phony—a “pretext,”
as the cases say. E.g., Coco v. Elmwood Care, Inc., 128
F.3d 1177, 1178-79 (7th Cir. 1997). No effort to do that
was made in this case.
   Instead of ending then and there, the case dragged on
for another year, until the eve of trial, when the judge
discovered that the plaintiffs had no evidence of dam-
ages. (No injunctive relief was sought.) As it was ap-
parent from the outset that damages would be difficult
to prove, the plaintiffs’ theory and evidence of damages
should have received careful scrutiny earlier in the litiga-
tion. Any damages would have had to be based on hours
worked by the second woman before the erroneous
listing of her hours on the weekly production schedule
was corrected. Those hours would have had to be
matched with the hours worked by the plaintiffs during
that period, since a senior produce clerk could claim
No. 09-1686                                                5

hours from a junior one only if the two were scheduled to
work different hours on the same day. Any of the
woman’s time during which another produce clerk
junior to the plaintiffs was also working, but no hours
were claimed by any of the plaintiffs, showing that they
didn’t want to work during those hours, would need to
be subtracted, along with hours that the plaintiffs
could not have claimed because of maximum-hour re-
strictions in the collective bargaining agreement. After
these adjustments were made, some evidence would
have had to be presented concerning the plaintiffs’ pro-
pensity for claiming hours, to rebut the inference that
they had no desire to work additional hours. None of the
requisite calculations was made. The records of all hours
worked by the plaintiffs and the second woman had
been produced to the plaintiffs’ lawyer but he had not
analyzed them; he proposed merely to dump them on
the jury.
  By the eve of trial, in 2008, the events giving rise to the
plaintiffs’ claims were five to six years in the past, and
the plaintiffs do not claim to have remembered their
intentions or desires with regard to claiming hours years
earlier. There is no evidence that any of them claimed
any hours during the period of the alleged discrimina-
tion. The fact that three of them began claiming
hours from the second woman when her hours were
properly listed is some evidence that they might have
begun claiming hours from her earlier had they known
her status. But their lawyer made no effort, by
projecting their claiming behavior backward in time, or
otherwise, to estimate how many of her hours they
6                                                 No. 09-1686

might have claimed earlier. And since there were only a
handful of produce clerks in the store, it is hard to
believe that had the plaintiffs been interested in claiming
hours they would have failed to notice that a produce
clerk junior to them was not listed in the produce-clerk
section of the production schedule that they consulted
at the beginning of each week.
  Another possible inference is that there were so
many other hours that the plaintiffs could have claimed
from junior produce clerks that the plaintiffs’ failure to
claim hours from the woman was immaterial. But the
fact that they started claiming her hours when they
discovered that she was listed as a produce clerk junior
to them undermines that inference. So does the fact that
the production schedules list only one produce clerk
(who was not a plaintiff) who was junior to four of the
plaintiffs during the period of alleged discrimination
and two who were junior to one of the plaintiffs. The
remaining plaintiff is not listed, adding to the mysteries
of this case that the plaintiffs’ lawyer did not attempt
to plumb.
  He argues that he should have been allowed to litigate
damages on the theory that what his clients lost was a
chance to claim hours from the second woman. Loss of a
chance—a probabilistic injury—is a proper damages
theory. E.g., Alexander v. City of Milwaukee, 474 F.3d 437, 449
(7th Cir. 2007); Biondo v. City of Chicago, 382 F.3d 680, 688
(7th Cir. 2004); Bishop v. Gainer, 272 F.3d 1009, 1016-17 (7th
Cir. 2001); Doll v. Brown, 75 F.3d 1200, 1205-06 (7th Cir.
1996); DeNardo v. GCI Communication Corp., 983 P.2d 1288,
No. 09-1686                                                 7

1290-92 and n. 9 (Alaska 1999); Youst v. Longo, 729 P.2d 728,
736-37 and n. 9 (Cal. 1987). But it requires evidence of the
loss of what economists call an “expected benefit.” Sup-
pose you’re playing roulette on a 37-number wheel
(18 red, 18 black, and 1 green) at the Casino de Monte-
Carlo, and after you have placed your $1,000 bet on red,
which will pay you $2,000 if the ball lands on red, the
casino collapses through the negligence of a building
contractor, destroying not only the roulette wheel but
also your chips, and you cannot get the money you paid
for them back because all the casino’s records were de-
stroyed when it collapsed. You’ve suffered a loss equal
to a 48.6 percent chance of winning $2,000. So $972.73
would be your damages. But the plaintiffs presented
no evidence from which any probability between 0 and
100 percent could be assigned to a loss of hours that
might have been claimed from the second woman.
   This case should have been dismissed years ago; its
protraction has undoubtedly imposed heavy legal
expenses on Dominick’s and the union. In the interest
of justice and economy, every effort should be made by
the district court from the start of a case to determine
its likely merit and guide it to as swift a conclusion as is
consistent with doing justice to the parties. In re Ocwen
Loan Servicing, LLC Mortgage Servicing Litigation, 491 F.3d
638, 648 (7th Cir. 2007); Lowe v. McGraw-Hill Cos., 361 F.3d
335, 338, 340 (7th Cir. 2004); Campania Management Co. v.
Rooks, Pitts & Poust, 290 F.3d 843, 851-52 (7th Cir. 2002);
Isby v. Clark, 100 F.3d 502, 504 (7th Cir. 1996); Nelson v.
Streeter, 16 F.3d 145, 151 (7th Cir. 1994); Warshawsky & Co.
v. Arcata National Corp., 552 F.2d 1257, 1265 (7th Cir. 1977);
8                                                  No. 09-1686

see also Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1188-89
(11th Cir. 2005); Manual for Complex Litigation §§ 10.1, 11.33
(4th ed. 2004); cf. Mirfasihi v. Fleet Mortgage Corp., 551
F.3d 682, 686-87 (7th Cir. 2008). Recent decisions of the
Supreme Court emphasize the importance of prompt
dismissal of unmeritorious cases even if they are not
frivolous, Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 559-61 (2007)—as
the present case, however, was.
                                                    A FFIRMED.




                             12-7-09
