Affirming summary judgment against the employment discrimination claims of a naturalized American citizen from Ghana who was fired around the time he went on leave for hemorrhoid surgery, the Seventh Circuit first found that by not filing a surreply brief in the court below, he waived the admissibility of certain evidence his employer attacked as inadmissible. And without that evidence, the record was undisputed he was terminated before his employer knew about his alleged disability or his FMLA leave. Nor was there any evidence in support of his contention that the company’s stated reason for his termination was pretext for any sort of discrimination (Ennin v. CNH Industrial America, LLC, December 27, 2017, Manion, D.).
The employee, a second shift supervisor, worked without incident for more than two years before he received a written warning for a verbal altercation with another supervisor. A few months later, he was on his way to work when he ran out of gas and called the lead hourly worker on his shift for help. Although the worker had already clocked in, he left the workplace to bring the employee some gas.
Policy violations. When they arrived back at the facility, the employee permitted his subordinate to follow him through the supervisor’s entrance after he had swiped his badge, in violation of company policy. He also neglected to adjust the worker’s time sheet to reflect that he had been off the premises for 46 minutes while clocked in.
Meeting. Two days later, on November 19, the employee was called to a meeting with his supervisor, his supervisor’s boss, and the HR manager to discuss the incident. When asked why he permitted his subordinate to enter the facility without swiping his own badge, he responded that everyone does it and he had done it many times before without reprimand. And while he also claimed he did not know his subordinate was at work when he called, the subordinate had already told HR the employee knew he was clocked in at the time.
Termination decision. The employee’s supervisor, his supervisor’s boss, and the HR manager purportedly decided shortly after that meeting that they would fire the employee the next day for his multiple policy violations. Later that afternoon, however, the employee’s supervisor gave him permission to leave work early because his hemorrhoids were acting up. The next day, November 20, he called his doctor and scheduled a previously planned hemorrhoidectomy for the following day. He also requested and received leave from the company’s third-party administrator through the end of the year.
According to the HR manager, she learned on November 20 that the employee had requested leave and would not be at work that day so she could not inform him of his termination. On December 1, she learned that the third-party administrator had approved the employee for short-term disability benefits. That same day, she sent a letter to the employee informing him of his termination, that the decision had been made on November 19, and that he was fired because of the incident with his subordinate and his refusal to take responsibility for his actions.
Lower court proceedings. The employee sued, asserting claims for race, national origin, and disability discrimination, as well as claims under the FMLA. Although he attempted to introduce evidence to show his employer did not decide to terminate him until December 1, the employer argued in its reply brief that this evidence was hearsay and unauthenticated. Because the employee never filed a surreply brief—even though the lower court’s local rules permitted him to do so as of right to respond to evidentiary objections—the district court found he waived his evidentiary arguments, excluded the evidence, and granted summary judgment to his employer.
Exclusion of evidence. As a threshold matter, the appeals court addressed the dispute over the employee’s proffered evidence, noting that the question, which it had not yet addressed, was whether a party must file a surreply to preserve an argument when the brief is permitted as of right by the district court’s local rules. Here, the court turned to its decision in Smith v. Bray, in which it permitted the non-moving party for summary judgment to raise arguments in support of evidence for the first time on appeal. In Smith, the court concluded that where “the appellant did not have a meaningful opportunity to be heard on the evidentiary issue in the district court, it would not be fair to refuse to consider his arguments presented for the first time on appeal.”
Noting that Smith is best understood as having followed the rule that a party need not seek leave of court to file a surreply just to preserve an issue for appeal, the appeals court here pointed out that Smith came from the Northern District of Illinois, where the local rules say nothing about surreply briefs. This case, however, came from the Southern District of Indiana, which expressly permits surreply briefs to be filed as of right in this situation—to respond to evidentiary objections made in a reply brief.
Thus, here, the employee did have a “meaningful opportunity to be heard on the evidentiary issue in the district court.” Where a brief is permitted as a matter of right, said the court, “a party must file it or risk waiver of any arguments it has neglected to raise.” By not presenting his arguments to the district court, the employee let his employer’s objections to the evidence stand unopposed. Because the district court was not required to make his arguments for him, and the appeals court refused to permit him to raise them for the first time on appeal, it affirmed the district court’s decision to exclude the evidence.
Race and national origin discrimination. Turning to the employee’s race and national origin discrimination claims, the appeals court found he failed to point to any admissible evidence that his employer didn’t fire him because of the incident with his subordinate. Although the employee argued that similarly situated white employees were not fired, the appeals court found the district court correctly rejected the comparators because they were hourly employees and had not been previously disciplined. And without any appropriate comparators or any other indicators of racial bias, he was left with mere conjecture and speculation to support these claims, which was not enough to survive summary judgment.
ADA and FMLA claims. The employee’s disability discrimination and FMLA interference and retaliation claims fared no better. After affirming the district court’s evidentiary ruling, the only admissible evidence established that the employer terminated the employee on November 19, which was prior to his surgery (the date he claimed he became disabled), and before the employer knew he had requested FMLA leave. This “inconvenient timing” made it impossible for the employer to have fired him because of his disability or his decision to take FMLA leave, said the court, finding that it also destroyed his failure-to-accommodate claim, as he didn’t claim he was disabled at all when he was fired. Finally, his FMLA interference claim failed because he received the FMLA leave to which he was entitled and his employer didn’t deny him any rights under that statute.
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