In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1268

BOOKER T. JOHNSON,

Plaintiff-Appellee,

v.

J.B. HUNT TRANSPORT, INCORPORATED,
c/o Target Distribution,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 C 183--Charles N. Clevert, Judge.

ARGUED DECEMBER 7, 2000--DECIDED February 13, 2002



  Before BAUER, MANION, and ROVNER, Circuit
Judges.

  ROVNER, Circuit Judge. Booker T. Johnson
was employed by J.B. Hunt Transport, Inc.
("Hunt"), an interstate motor carrier,
until he was terminated from his position
on June 12, 1995. He worked as a road
driver operating a tractor-trailer on a
regular route, and later became a driver
trainer. He transferred to the Hunt
facility in Bridgeview, Illinois, in
1990, and received numerous safety awards
and commendations for good performance at
that facility. He achieved the status of
"gold driver" which entitled him to
certain advantages such as getting a new
truck whenever one was available,
choosing his routes, and never having to
wait for a load, as well as fuel and
performance bonuses. In late 1994,
Johnson learned of a job opening at the
terminal in Oconomowoc, Wisconsin, which
would allow him more time at home. He
contacted Sharon Lincks, who was the
Project Manager at that facility, and was
granted an interview in December 1994. At
that time, the Oconomowoc facility
employed only one African-American
driver. Johnson is African-American, as
were approximately 80% of the drivers at
the Bridgeview terminal. Lincks informed
Johnson that the interview went well and
that it would take approximately 5 days
to process his paperwork. When he
received no further word from her, he
called the Oconomowoc facility, and was
informed by a dispatcher that several new
drivers had been hired but that he was
placed on a wait list. He then contacted
the operations manager in Chicago
concerning his interest in the transfer,
and that manager arranged for the
transfer which took place in February
1995.

  The testimony at trial indicated actions
by Hunt singling Johnson out for
unfavorable treatment. Although he was
the first person to arrive at the
dispatch office, the other drivers were
given their assignments first, and he was
the last one on the list to get his
paperwork. Moreover, he was given the
most time-consuming assignments on the
slowest routes, which affected his income
because drivers were paid by the load
rather than the mile. When Johnson walked
in the room, Lincks would act ". . . like
she smelled something or go to coughing
or hide her face or cover her nose or
something like that." She also repeatedly
suggested to Johnson that he should go
back to Chicago to drive. Finally, Lincks
told him that there were no assigned
trucks at the Oconomowoc terminal, which
meant that he was not able to exercise
his right as a gold driver to the new
trucks. Johnson testified, however, that
he observed the same trucks going to Iowa
every day with the same drivers. He
nevertheless was generally assigned older
trucks that had to be cleaned before
being used. Prior to the Memorial Day
weekend, the Fleet Manager proposed that
Johnson work on Saturday in exchange for
taking off Memorial Day, which Johnson
decided to do. When Johnson was absent on
Memorial Day, both Lincks and Marcus
Bishop, a dispatcher, contacted him. When
he explained that he had traded his
holiday, Lincks told him that if he did
not work that day, he would be drug
tested and could not drive out of the
Oconomowoc facility anymore.

  Johnson called the main office in
Arkansas after that conversation to
complain that Lincks was prejudiced and
was discriminating against him in the
assignment of trucks, routes and loads,
and that Lincks had told him he could not
work out of the Oconomowoc facility
anymore. A meeting was held to discuss
his concerns, and Johnson returned to
work on June 12. On that day he was
informed by Lincks that he had been
chosen for a random drug test and was
ordered to report to the Wilkinson Clinic
to give a urine specimen. Johnson
testified that he went to the clinic and
waited approximately 15 minutes because
no nurses were available. He was then
told to go to lunch, and did so. While at
lunch, he phoned Lincks to inform her of
what happened at the clinic. He then
returned to the clinic, and after an
additional 15-20 minute wait, provided
the urine sample. The specimen was taken
by Cynthia Raether, who testified that
the temperature of the specimen was
normal, and who indicated on some of the
forms that the "specimen appears
dilute/pale in color." Later that day,
Lincks told Johnson that he had to return
to the clinic that day to be tested again
because the sample was diluted. She
further told him she was going to
accompany him to the clinic to do an
observed sample. Johnson believed this
was further discriminatory harassment,
and refused to do so. He was then fired.

  In response to Johnson’s claim of
discrimination, Hunt asserted that it was
simply following Department of
Transportation ("DOT") regulations
applicable to Federal Drug Screening, and
that the clinic had determined that the
sample was diluted and that a retest was
required. Raether and her supervisor at
Wilkinson Clinic testified at the trial.
Raether testified that Johnson did not
exhibit any behavior indicating an
attempt to tamper with the specimen and
that the temperature of the specimen was
normal. She further stated that she made
no recommendation that further testing of
the sample was needed or that a second
sample was needed that day. She also
testified that the clinic never performed
any preliminary testing on samples, never
made any determination as to the adequacy
of the specimen, and never made any
recommendations to any employer as to the
need for additional drug testing. Her
supervisor, Beverly Yunto, testified that
she made no such call to Hunt either,
that the DOT rules required a direct
observation collection only when the
collection site person observed behavior
clearly evidencing an attempt to tamper
with a specimen or where the temperature
was outside the normal range, and that
neither of those circumstances were
present in Johnson’s case. She further
stated that the Wilkinson Clinic does not
do observed collections.

  The jury found in Johnson’s favor on his
claims under Title VII and sec. 1981, and
judgment was entered against Hunt in the
amount of $202,633.62 plus costs and
attorney’s fees. Hunt appeals, arguing
that the Title VII claim was not timely
filed and that the district court erred
in precluding the testimony of Lincks and
Clay Perry, Lincks’ supervisor, as a
sanction for noncompliance with discovery
obligations. Because we affirm the
district court on those issues, we need
not consider Hunt’s additional contention
on appeal that Johnson had an
insufficient contractual relationship
with Hunt to support a sec. 1981 claim.

I.

  We turn first to Hunt’s claim that the
Title VII charge was not timely filed
with the EEOC. Pursuant to Title VII,
Johnson was required to file his claim
with the EEOC within 300 days after the
alleged employment practice occurred. 42
U.S.C. sec. 2000e-5(e)(1). For a state
such as Wisconsin having its own
antidiscrimination agency, however, Title
VII also provides that no charge may be
filed with the EEOC "before the
expiration of sixty days after
proceedings have been commenced under the
State or local law, unless such
proceedings have been earlier terminated
. . . ." 42 U.S.C. sec. 2000e-5(c). In
EEOC v. Commercial Office Products Co.,
486 U.S. 107, 114-15 (1988), the Supreme
Court held that a state proceeding need
not be finally ended in order for it to
be considered "terminated" under this
provision. Instead, the Court accepted
the EEOC’s contention that "a state
agency ’terminates’ its proceedings when
it declares that it will not proceed, if
it does so at all, for a specified
interval of time." Id. at 115.

  Johnson filed his charge with the
Wisconsin Equal Rights Division ("ERD")
on April 4, 1996. The 300-day period
expired on April 7, 1996, and Hunt claims
that the State proceedings were not
terminated before that date and therefore
the charge was untimely. This issue
therefore ultimately hinges on whether
the state proceedings were "terminated"
by April 7, 1996. To answer that
question, we must examine the worksharing
agreement entered into between the EEOC
and the ERD.

  The agreement provides, in relevant
part:

In order to facilitate the assertion of
employment rights, the EEOC and the [ERD]
each designate the other as its agent for
the purpose of receiving and drafting
charges.

. . .

Normally, once an Agency begins an
investigation, it will resolve the
charge. Charges may be transferred
between the EEOC and [the ERD] within the
framework of a mutually agreeable system.
Each Agency will advise Charging Parties
that charges will be resolved by the
Agency taking the charge except when the
Agency taking the charge lacks
jurisdiction or when the charge is to be
transferred . . . .

. . .
For charges originally received by the
EEOC and/or to be initially processed by
the EEOC, the [ERD] waives its rights to
exclusive jurisdiction to initially
process such charges for a period of 60
days, for the purpose of allowing the
EEOC to proceed immediately with the
processing of such charges before the
61st day.

In addition, the EEOC will initially
process the following charges:

- All Title VII charges received by the
[ERD] 240 days or more after the date of
violation.

Hunt acknowledges that pursuant to this
agreement, the ERD acted as an agent of
the EEOC in accepting Johnson’s charge as
jointly filed on April 3, 1996, and that
his charge was thereby properly filed
with the EEOC on that date. Hunt further
admits that the ERD, through the
worksharing agreement, could properly
waive its 60-day exclusivity period set
forth in 42 U.S.C. sec. 2000e-5(c). That
is precisely what the worksharing
agreement accomplished in this case. The
language of the agreement is not
discretionary. It waives ERD’s right to
exclusive jurisdiction for all charges
which are to be initially processed by
the EEOC, and further provides that the
EEOC will initially process all charges
filed more than 240 days after the date
of violation. Hunt does not assert that
the state had a contrary intent in
executing the worksharing agreement, and
in fact concedes that the language would
normally effect a waiver. We therefore
hold, consistent with its plain language,
that the worksharing agreement is self-
executing, and therefore the waiver of
exclusive jurisdiction occurred at the
time that the complaint was filed with
the ERD. See Marlowe v. Bottarelli, 938
F.2d 807 (7th Cir. 1991) (holding that
waiver provision of Illinois’ worksharing
agreement was self-executing, and worked
instantaneous constructive termination of
the state’s jurisdiction over the
charge); Ford v. Bernard Fineson
Development Center, 81 F.3d 304, 308-311
(2d Cir. 1996) (holding that New York’s
worksharing agreement contained a self-
executing waiver of the state’s right to
exclusively handle discrimination claims
for 60 days, and that the waiver
constituted a termination under sec.
2000e-5(c)). Under Commercial Office
Products, that constitutes a termination
of the state proceeding for purposes of
the statute. That interpretation is
consistent with the federal regulations
interpreting the statute, which provide
that a charge initially presented to the
state agency will be deemed filed with
the EEOC: (1) upon expiration of 60 days
after the charge is sent to the state
agency; or (2) upon termination of the
state proceeding; or (3) upon waiver by
the state agency of its right to
exclusively process the charge, whichever
is earliest. 29 C.F.R. sec. 1601.13(b(1).
Here, the worksharing agreement waived
the ERD’s exclusive right to process the
charge when the charge was filed with the
ERD, and accordingly the charge was
timely filed with the EEOC.

  In response to that authority, Hunt
asserts that the post-filing actions of
ERD negated the waiver. Upon receiving
the charge, ERD sent a preprinted form to
the EEOC, and checked a box indicating:
"Pursuant to the worksharing agreement,
this charge is to be initially
investigated by the [ERD]." Hunt argues
that the form evidenced an intent by ERD
to process the charge despite the
language of the worksharing agreement.
There are a number of problems with this
argument. First, the sentence upon which
Hunt relies explicitly recognizes the
validity of the worksharing agreement,
and purports to act consistent with that
agreement. Hunt, however, would have us
interpret that language as evidencing an
intent to contravene the worksharing
agreement. That belies the plain language
itself. It is clear that the person who
transmitted the form erroneously believed
that under the worksharing agreement, ERD
was responsible for initially processing
the claim. That error does not impact the
determination of timeliness. As we
explained earlier, the provisions of the
worksharing agreement at issue are self-
executing, and the waiver occurred at the
moment that the charge was filed with the
ERD. The subsequent actions here do not
alter that constructive termination.
Accord Marlowe, 938 F.2d at 809, 814
(although the state agency processed her
charge for two months after it was filed,
waiver in workshare agreement was self-
executing resulting in instantaneous
constructive termination at time of
filing); Ford, 81 F.3d at 308-11 (waiver
in worksharing agreement was effective as
soon as charge was filed and
instantaneously terminated the
proceedings under sec. 2000e-5(c),
despite state agency’s actions in
immediately conducting a four-month
investigation of the charge). See also
Brown v. Crowe, 963 F.2d 895, 899-900
(6th Cir. 1992) (where state agency made
similar error in determining it should
initially process a charge, the court
declined to decide whether the
worksharing agreement was self-executing,
but held sua sponte that the doctrine of
equitable tolling applied).

II.

  The remaining issue is whether the court
erred in barring the testimony of two of
Hunt’s witnesses, based upon Hunt’s
conduct during discovery. We review a
district court’s discovery sanctions only
for abuse of discretion. That standard
"’means something more than our belief
that we would have acted differently if
placed in the circumstances confronting
the district judge.’" Williams v. Chicago
Bd. of Educ., 155 F.3d 853, 857 (7th Cir.
1998), quoting Anderson v. United Parcel
Service, 915 F.2d 313, 315 (7th Cir.
1990). For an abuse of discretion to
occur, the district court’s decision must
strike us as fundamentally wrong. Id.

  After Hunt repeatedly failed to produce
Lincks and Perry for depositions, the
district court barred Hunt from using
them at trial. Johnson first noticed the
depositions of Lincks and Perry for
January 28, 1999, which was continued by
mutual agreement. The depositions were
noticed a second time for March 25 and
26, 1999. In a letter dated March 24,
Hunt acknowledged those dates but
indicated reluctance to engage in
depositions if it would not impact
summary judgment on unrelated legal
issues such as the timeliness of the
charge and the existence of a contractual
relationship for purposes of the sec.
1981 claim. Hunt further stated in that
letter that written discovery was
outstanding and that it assumed Johnson
would want the responses prior to taking
depositions. Hunt did not produce those
witnesses for deposition on March 25 or
26, and did not provide those written
responses to discovery until May 24,
1999, well after the close of discovery
on May 3. In the meantime, Johnson
continued to discuss the depositions with
Hunt, and on April 13 again referenced
the notices of deposition. With the close
of discovery approaching on May 3,
Johnson filed a motion to compel
compliance with discovery on April 30.
The court denied that motion without
prejudice, stating that the motion did
not set forth an effort to consult with
Hunt to resolve the discovery disputes.
As was stated, Johnson eventually
received the written discovery responses
on May 24. On June 23, Johnson wrote to
Hunt again requesting that Hunt produce
the witnesses for deposition. Johnson
sent another letter on July 23,
indicating that the attorney for Hunt,
Thomas Carney, had failed to return any
of his previous telephone calls (a
problem noted in earlier documents as
well), and again requesting to depose
Lincks and Perry.

  Hunt responded with a letter in which it
refused to produce anyone for deposition
without a court order. In the letter,
Carney acknowledged that shortly before
the discovery deadline of May 3, he
indicated he would have no problem with
extending discovery, but he asserted that
Johnson failed to seek such an extension
with the court. Accordingly, Hunt adopted
the position that discovery was closed.
The letter further stated that:

because of the wide disparity in our
positions, I frankly do not see that
there is anything to discuss. You are, of
course, entitled to petition the Court to
be allowed to conduct whatever discovery
you want to. If you elect that course, I
will explain my position, and the Judge
will decide. If the Judge decides that
close of discovery meant close of
discovery, we will go to trial. If the
Judge decides something else, we will
abide by his decision.

Johnson filed a renewed motion to compel
and later a motion in limine to exclude
the testimony of Lincks and Perry. The
court granted the latter motion and
barred Hunt from presenting the testimony
of Lincks and Perry at trial. In so
holding, the court stated, in pertinent
part:

. . . this seems like it’s a problem in
understanding a very simple term. And
it’s called incivility. Mr. Carney, it
appears to me that you are desirous of
having things go both ways. Here a
request was made to conduct discovery of
two key defense witnesses prior to the
expiration of the deadline for discovery.
If the request, the timely request had
been honored by you discovery would have
taken place. When further requests were
made as evidenced by your time line you
did not immediately respond with new
dates that you would be available. And
ultimately when further requests were
made you said, oh, the time for discovery
has passed.

  The defense will be barred from
presenting the two witnesses who were not
tendered for depositions. And I will
underscore the remark I just made
earlier. I am barring it because you
failed to produce the witnesses when you
were requested to do so and you declined
to submit them to discovery in what I
believe to be a most unprofessional,
unprofessional and I think abusive manner
during the course of this discovery. . .
.

  The sequence of events reveals a pattern
of dilatory conduct by Hunt. Hunt failed
to respond to written discovery in a
timely manner and relied on the absence
of those responses as a basis to delay
the depositions of Lincks and Perry. Hunt
ultimately did not respond to the written
discovery requests until after the
discovery deadline had passed, indicating
that it would have no problem extending
discovery given the delay. It then
refused to produce Lincks and Perry for
deposition because the discovery deadline
had passed. That is precisely the type of
conduct for which discovery sanctions are
appropriate. Litigants are expected to
act in good faith in complying with their
discovery obligations, and Hunt’s
reliance on its own delay to justify
refusing to produce Lincks and Perry was
anything but good faith. Hunt ultimately
refused to even discuss resolving the
outstanding discovery issues with
opposing counsel, choosing instead to let
the court decide it. The court did so,
and Hunt now seeks refuge from that
decision. It will find no comfort here.
The record amply supports the court’s de
cision that sanctions were appropriate,
and those sanctions were tailored to the
nature of the violation. Although Hunt
claims that the sanction decimated its
case and amounted to a directed verdict,
that is inconsistent with its position
earlier in the litigation that Lincks had
no relevant information, and with its
initial position that the second test was
ordered by the clinic and it was merely
complying with that order. The district
court did not abuse its discretion in
imposing the discovery sanction. It was
precisely tailored to the nature of the
discovery violation. See Newman v.
Metropolitan Pier & Exposition Authority,
962 F.2d 589, 591 (7th Cir. 1992)
(upholding dismissal of suit where
plaintiff repeatedly failed to appear for
deposition and failed to comply with
written discovery deadline); Melendez v.
Illinois Bell Telephone Co., 79 F.3d 661,
672 (7th Cir. 1996) (district judge may
"impose sanctions that are ’just,’ that
is, proportionate to the circumstances
surrounding a party’s failure to comply
with discovery rules"). Because there is
no other challenge to the Title VII
determination, and that claim fully
supports the relief ordered here, we need
not consider the sec. 1981 issue. The
decision of the district court is
AFFIRMED.
