Edith McCurry v. Kenco Logistic Services, LLC ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3206
EDITH MCCURRY,
Plaintiff-Appellant,
v.
KENCO LOGISTICS SERVICES, LLC, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 16-CV-2273 — Colin S. Bruce, Judge.
____________________
ARGUED APRIL 11, 2019 — DECIDED NOVEMBER 7, 2019
____________________
Before SYKES, SCUDDER, and ST. EVE, Circuit Judges.
SYKES, Circuit Judge. Edith McCurry worked at an Illinois
warehouse owned by Mars, Inc., the well-known candy
maker, and operated by Kenco Logistics Services, a third-
party management firm. In March 2015 Kenco lost its con-
tract with Mars and laid off its employees at the warehouse,
including McCurry. More than a year later, she filed two
rambling pro se complaints accusing Kenco, Mars, and
several of her supervisors of discriminating against her
No. 18-3206 2
based on her race, sex, age, and disability. She also alleged
that Kenco and Mars conspired to violate her civil rights.
The district court consolidated the suits and dismissed
some of the claims. The defendants then moved for sum-
mary judgment on the rest. McCurry’s response violated the
local summary-judgment rule, so the judge accepted the
defendants’ factual submissions as admitted and entered
judgment in their favor. McCurry retained counsel and
appealed.
We affirm. McCurry doesn’t challenge the judge’s deci-
sion to enforce the local summary-judgment rule. As a result,
and unsurprisingly, the uncontested record contains no
evidence to support a viable discrimination or conspiracy
claim. Indeed, the appeal is utterly frivolous and McCurry’s
monstrosity of an appellate brief is incoherent, so we also
order her lawyer, Jordan T. Hoffman, to show cause why he
should not be sanctioned or otherwise disciplined under
Rules 28 and 38 of the Federal Rules of Appellate Procedure.
I. Background
We begin with the judge’s decision to enforce Local
Rule 7.1(D), 1 which governs the summary-judgment process.
McCurry violated multiple provisions of the rule. We in-
clude a sampling to provide an understanding of her non-
compliance:
• Under Local Rule 7.1(D)(1)(a)–(c), a response to a
summary-judgment motion must include the follow-
1 Local Rules of the Central District of Illinois.
No. 18-3206 3
ing specific sections with appropriate headings: an in-
troduction, a response to the moving party’s state-
ment of undisputed material facts, and an argument
section. McCurry’s response to the defendants’ mo-
tions contained none of those sections. It was instead
a disorganized, rambling, hard-to-decipher mess.
• Local Rule 7.1(D)(2)(b) requires that the response to
the moving party’s statement of material facts must
identify, in separate subsections: (1) the undisputed
material facts; (2) the disputed material facts; (3) the
disputed immaterial facts; (4) the undisputed imma-
terial facts; and (5) any additional material facts. Each
disputed fact conceded to be material must be listed
by number and supported by evidentiary documenta-
tion that is referenced by specific page. McCurry’s re-
sponse was woefully noncompliant with these
requirements. She responded to some facts by num-
ber but said only that she objected to them. She did
not state the basis for her objections, nor did she re-
spond with appropriate and specific citations to evi-
dentiary documentation.
• Although McCurry did not include an argument sec-
tion in her brief, her arguments were scattered ran-
domly throughout her 62-page response, in probable
violation of Local Rule 7.1(D)(5), which (by cross-
reference to Rule 7.1(B)(4)) limits the argument sec-
tion of a response brief to 15 pages or 7,000 words.
Under Local Rule 7.1(D)(2)(b)(6), the failure to properly
respond to a numbered fact in an opponent’s statement of
facts “will be deemed an admission of the fact.” In light of
No. 18-3206 4
McCurry’s widespread noncompliance, the judge deemed
the defendants’ factual submissions admitted.
As we’ve noted, McCurry doesn’t challenge the judge’s
decision to enforce Rule 7.1(D). Even if she had, we have
repeatedly held that district judges may strictly enforce local
summary-judgment rules, Ammons v. Aramark Uniform
Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004), and the judge
reasonably did so here. 2 Accordingly, our account of the facts
is drawn from the defendants’ uncontested factual submis-
sions.
We begin in 2013 when Mars contracted with Kenco, a
third-party logistics firm, to manage its warehouse in
Manteno, Illinois. Under the parties’ agreement, Kenco was
responsible for day-to-day operations and exercised full
control over its own employment policies. Kenco retained
several employees from the previous warehouse manager.
One holdover was Edith McCurry, who worked in human
resources. McCurry, a black woman born in 1962, performed
clerical and administrative duties, such as handling ware-
house payroll, generating reports, and assisting with em-
ployee relations. She had no managerial responsibilities.
2 We give substantial deference to a judge’s decision to strictly enforce
local summary-judgment rules, reversing only for abuse of discretion.
Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004).
The judge showed remarkable patience with McCurry. Even pro se
litigants are obliged to follow procedural rules. Members v. Paige, 140 F.3d
699, 702 (7th Cir. 1998). McCurry’s violations of Local Rule 7.1(D) are
thoroughly documented in the judge’s order denying her motion for
reconsideration, and we find no abuse of discretion.
No. 18-3206 5
In October 2014 Kenco hired Lori Varvel, a white woman
17 years younger than McCurry, as the human-resources
manager. Varvel assumed some of McCurry’s duties, though
McCurry’s pay remained the same.
On December 9 McCurry worked an hour and a half of
unauthorized overtime in violation of Kenco’s timekeeping
policy. Ten days later Varvel gave her a written warning for
working overtime without authorization, misrepresenting
her hours, and failing to report the correct hours. On
January 29, 2015, Kenco announced that it had lost the Mars
contract and that all employees at the warehouse would be
let go at the end of March.
In August 2016 McCurry filed a 77-page, 386-paragraph
pro se complaint against Kenco, Mars, and several supervi-
sors alleging discrimination based on her race, gender, age,
and disability. She also alleged a claim for conspiracy to
violate her civil rights and several state-law claims. None of
her claims alleged that she was fired for a discriminatory
reason. Rather, she complained about conduct during the
course of her employment at the Mars warehouse.
Not two weeks later, McCurry filed a second lawsuit
against largely the same group of defendants. This one, like
the first, was sprawling. Indeed, at 89 pages and
423 paragraphs, the second complaint was even more ram-
bling than the first, but it more or less repeated the allega-
tions in the earlier suit. The district court consolidated the
cases.
The judge dismissed some claims but allowed the follow-
ing to proceed: (1) claims against Kenco for discrimination
on the basis of race and sex in violation of Title VII of the
No. 18-3206 6
Civil Rights Act of 1964; (2) a claim against Kenco, Mars, and
the supervisors for discrimination on the basis of race in
violation of 42 U.S.C. § 1981; (3) a claim against Kenco for
violation of the Age Discrimination in Employment Act
(“ADEA”); (4) a claim against Kenco for violation of the
Americans with Disabilities Act (“ADA”); and (5) a conspira-
cy claim against Kenco, Mars, and the supervisors under
42 U.S.C. § 1985(3).
The defendants moved for summary judgment on these
surviving claims. As we’ve explained, McCurry’s response
did not comply with the local summary-judgment rule, so
the judge accepted the defendants’ statement of facts as
admitted pursuant to Local Rule 7.1(D)(2)(b)(6). Charitably
working his way through each claim, the judge concluded
that the evidence was insufficient to support liability for any
form of employment discrimination or conspiracy.
McCurry moved for reconsideration. The judge denied
the motion, noting that McCurry did not identify any newly
discovered evidence and merely rehashed old arguments.
The judge also elaborated on his decision to enforce Local
Rule 7.1(D), providing an exhaustive account of McCurry’s
violations.
II. Discussion
We review a summary judgment de novo. Kopplin v. Wis.
Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019). Summary
judgment is warranted if the moving party shows that there
is no genuine dispute as to any material fact and he is enti-
tled to judgment as a matter of law. FED. R. CIV. P. 56(a). As
this case comes to us, the record is limited to the defendants’
No. 18-3206 7
evidentiary submissions. Apex Dig., Inc. v. Sears, Roebuck &
Co., 735 F.3d 962, 965 (7th Cir. 2013).
A. Title VII and § 1981 Claims Against the Kenco
Defendants
The legal analysis for discrimination claims under
Title VII and § 1981 is identical, Ferrill v. Oak Creek–Franklin
Joint Sch. Dist., 860 F.3d 494, 499 (7th Cir. 2017), so we merge
our discussion of these claims. As in any employment-
discrimination case, we ask whether the evidence would
permit a reasonable fact-finder to conclude that McCurry
was subjected to an adverse employment action based on a
statutorily prohibited factor—here, race or sex. Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).
McCurry maintains that Kenco discriminated against her
by paying her less than her white, male coworker Leonard
Szplett. But Szplett earned more than McCurry because he
had extensive managerial responsibilities and she had none.
McCurry’s unequal-pay claim is therefore baseless. See
Poullard v. McDonald, 829 F.3d 844, 855 (7th Cir. 2016) (affirm-
ing a grant of summary judgment after finding that an
employee’s claim that he was paid less than his supervisor
did not show discrimination).
Next, McCurry argues that Kenco discriminated against
her by hiring Varvel as the human-resources manager. This
is essentially a failure-to-promote claim, so McCurry must
show: (1) she was a member of a protected class; (2) she was
qualified for the position she sought; (3) she was rejected for
the position; and (4) the employer promoted someone
outside of the protected class who wasn’t better qualified.
Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 892 (7th Cir. 2016).
No. 18-3206 8
McCurry did not apply for the position of human-resources
manager, so her failure-to-promote claim does not meet
requirements (2) and (3). This claim too is baseless.
Relatedly, McCurry contends that the reduction of her job
duties after Varvel was hired was discriminatory. This is yet
another baseless claim. Inconveniences and modest altera-
tions of job responsibilities are not adverse employment
actions. Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir.
2012). And the decision to have Varvel handle employee-
relations matters had nothing to do with McCurry’s race or
gender. Varvel, who had prior management experience at a
large corporation, assumed these responsibilities because
she was far more qualified than McCurry.
McCurry also argues that the December 2014 warning for
unauthorized overtime was discriminatory. But the warning
had no impact on her pay or on any terms or conditions of
her employment, so it likewise was not an adverse employ-
ment action. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602
(7th Cir. 2009) (holding that written reprimands without
changes in the terms or conditions of employment are not
adverse employment actions). Finally, any claim for retalia-
tion is baseless because McCurry did not engage in any
statutorily protected activity for which she could be retaliat-
ed against in violation of Title VII. See King v. Ford Motor Co.,
872 F.3d 833, 841 (7th Cir. 2017) (explaining that a plaintiff
must show that he engaged in a statutorily protected activity
in order to prevail on a Title VII retaliation claim).
B. ADEA and ADA Claims Against Kenco
The ADEA prohibits an employer from refusing to hire a
person who is 40 or older because of his age. 29 U.S.C.
No. 18-3206 9
§ 623(a)(1). McCurry’s age-discrimination claim is based on
Kenco’s decision to hire Varvel as the human-resources
manager. McCurry was 52 when Kenco hired Varvel, who
was 17 years younger than she. We have already explained
that McCurry did not apply for this job and that Varvel was
hired because she was far more qualified. There is no evi-
dence to support an age-discrimination claim.
The ADA prohibits an employer from discriminating
against a qualified person on the basis of disability. 42 U.S.C.
§ 12112(a). McCurry argued below that Kenco violated the
ADA when her COBRA health-insurance costs changed after
the layoff and she did not receive COBRA open-enrollment
paperwork.3 It’s not clear how problems with COBRA health
insurance can be an ADA violation. Regardless, the judge
granted summary judgment for Kenco because a third-party
administrator was responsible for the laid-off employees’
COBRA-related benefits. McCurry did not challenge this
ruling—or even mention the ADA claim—in her opening
brief on appeal, raising it only in her reply brief. That’s a
waiver. Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.
2005).
C. Section 1981 Claim Against Mars
Section 1981 provides a federal remedy against racial dis-
crimination in private employment. Johnson v. Ry. Express
Agency, Inc., 421 U.S. 454, 459–60 (1975). Kenco, not Mars,
3Referring to the Consolidated Omnibus Budget Reconciliation Act of
1985, 29 U.S.C. §§ 1161–1168.
No. 18-3206 10
was McCurry’s employer, but an entity other than the actual
employer may be considered a “joint employer” for purpos-
es of § 1981 if it exercised significant control over the em-
ployee. Whitaker v. Milwaukee County, 772 F.3d 802, 810 (7th
Cir. 2014).
McCurry contends that Mars was her joint employer be-
cause Mars contracted with Kenco and Mars’s regional
distribution manager attended some meetings at the
Manteno warehouse. That’s clearly not enough to establish
significant control. See Love v. JP Cullen & Sons, Inc., 779 F.3d
697, 702–03 (7th Cir. 2015) (holding that where a general
contractor provided instructions to a supervisor employed
by a subcontractor, “[t]his minimal supervision” did not
constitute significant control). Nothing in the agreement
between Kenco and Mars establishes joint control over the
warehouse employees. Kenco issued McCurry’s paychecks
and provided her benefits. Kenco conducted her perfor-
mance reviews and issued the disciplinary warning she
complains of here. As applied to Mars, the § 1981 claim is
baseless for the additional reason that there is no evidence
that it was a joint employer.
D. Conspiracy Claim Against the Kenco Defendants and
Mars
In order to prove a conspiracy claim under 42 U.S.C.
§ 1985(3), a plaintiff must establish:
(1) the existence of a conspiracy; (2) a purpose
of depriving a person or class of persons of
[the] equal protection of the laws; (3) an act in
furtherance of a conspiracy; and (4) an injury
to person or property or a deprivation of a
right or privilege granted to U.S. citizens.
No. 18-3206 11
Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th Cir.
1999). The predicate injury at issue here is employment
discrimination. Because summary judgment for the defend-
ants was entirely proper on all of McCurry’s employment-
discrimination claims, the conspiracy claim necessarily fails.
E. Sanctions
This appeal represents a shameful waste of judicial re-
sources. We take this opportunity to reiterate that district
judges may require strict compliance with local summary-
judgment rules. Ammons, 368 F.3d at 817. The rules exist to
ensure the fair and expeditious resolution of legal controver-
sies and are well tailored to bring order and intelligibility to
the summary-judgment process. Litigants and attorneys may
chafe under the rules from time to time, “but the kind of
organization the rules require must occur sooner or later,
and the system as a whole is better served if it happens
sooner.” Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999).
Moreover, “[t]he purpose of an appeal is to evaluate the
reasoning and result reached by the district court.” Jaworski
v. Master Hand Contractors, Inc., 882 F.3d 686, 690 (7th Cir.
2018). The rules of appellate procedure are designed “to
make appellate briefs as valuable an aid to the decisional
process as they can be.” Id. (quotation marks omitted).
Noncompliance with appellate rules wastes time and re-
sources and frustrates the review process. Sanctions are
appropriate when the rules are violated—especially when
the violations are multiple and flagrant, as they are here.
Rule 38 of the Federal Rules of Appellate Procedure per-
mits us to impose sanctions if an appeal is frivolous: “If a
court of appeals determines that an appeal is frivolous, it
No. 18-3206 12
may, after a separately filed motion or notice from the court
and reasonable opportunity to respond, award just damages
and single or double costs to the appellee.” An appeal is
frivolous if the appellant’s claims are cursory, totally unde-
veloped, or reassert a previously rejected version of the facts.
See Jaworski, 882 F.3d at 691. An appeal is also frivolous if it
presents arguments that are so insubstantial that they are
guaranteed to lose. Berwick Grain Co. v. Ill. Dep't of Agric.,
217 F.3d 502, 505 (7th Cir. 2000).
McCurry’s appeal rests on factual assertions that were
excluded from consideration below because McCurry disre-
garded several provisions in the local summary-judgment
rule. As we’ve explained, there is no basis to disturb that
ruling even if McCurry had challenged it, which she did not.
Her appellate arguments are insubstantial to the point of
incoherence and had no chance of prevailing in this court.
“The result has been the harassment of opposing parties,
insult to judicial officers, and waste of limited and valuable
judicial resources.” McCready v. eBay, Inc., 453 F.3d 882, 892
(7th Cir. 2006).
The patently frivolous nature of this appeal isn’t the only
thing that troubles us. The hopelessness of McCurry’s cause
didn’t deter her lawyer, Jordan Hoffman, from signing and
submitting a bizarre appellate brief laden with assertions
that have no basis in the record and arguments that have no
No. 18-3206 13
basis in the law. 4 In so doing, Hoffman violated Rule 28 of
the Federal Rules of Appellate Procedure.
Rule 28 requires “a concise statement of the case” that
sets out “the facts relevant to the issues submitted for re-
view” and a summary of the argument containing “a suc-
cinct, clear and accurate statement of the arguments made in
the body of the brief.” FED R. APP. P. 28(a)(6)–(7). McCurry’s
brief, which spans 86 interminable pages, is neither concise
nor clear. 5 It is chock-full of impenetrable arguments and
unsupported assertions, and it is organized in ways that
escape our understanding. Here is a representative sample:
• McCurry’s brief seeks review of a variety of interlocu-
tory orders without specifying why the orders were
deficient. These “orders” include the “Amended
Complaint,” “multiple waivers of service,” and a rou-
tine protective order allowing the parties to mark dis-
covery documents “confidential.”
• The brief accuses the defendants of criminal obstruc-
tion of justice and in a footnote asserts that
4 He signed the brief on behalf of “plaintiff-appellant Mary Madison,”
who is not a party in this case. This is yet another way in which the brief
is “out of the ordinary.” Pecher v. Owens-Ill., Inc., 859 F.3d 396, 403 (7th
Cir. 2017).
5 The term “brief”—derived from the Latin brevis, meaning short—seems
inapt here. 1001 LEGAL WORDS YOU NEED TO KNOW: THE ULTIMATE GUIDE
TO THE LANGUAGE OF THE LAW 16 (Jay M. Feinman & James E. Clapp eds.,
2003). The brief is also a typographical nightmare. It uses five different
fonts and various font sizes, including three different fonts in one
sentence, and capitalizes words seemingly at random.
No. 18-3206 14
“[d]efendants’ schemes were furthered by the US
Mail.” 6
• The brief invokes res judicata, collateral estoppel, and
judicial estoppel, none of which apply, none of which
were asserted below, and all of which are therefore
waived. Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d
794, 803 (7th Cir. 2010).
• The brief includes a section entitled
“GAMESMANSHIP,” which contains the following
assertion: “Defendants have been ‘gaming’ the sys-
tem.” There is nothing else in the “gamesmanship”
section.
• The brief contains many sentences like this one (all
errors in original):
McCurry experiences a change in fringe
benefits; harsher scrutiny; failure to be
promoted; lack of opportunities; lack of
professional standing; economic sanctions;
hostile work environment that led to an
employee being shot on the premise, vari-
ous verbal and physical assaults of African-
Americans by Caucasian employees of use
of gun violence, vehicular assault, amongst
other forms of violence, the ever looming
6 When we questioned Hoffman about this outrageous accusation at oral
argument, he apologized. He then opined that “civil obstruction, if
anything,” took place. There is no civil cause of action for obstruction of
justice.
No. 18-3206 15
threat that a racially motivated altercation
or riot may ensue and physical damage to
McCurry’s auto amongst actions/activities/
conduct.
There is more, but the point is made. Bad writing does
not normally warrant sanctions, but we draw the line at
gibberish. See Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir.
2011) (ordering a lawyer to show cause why he should not
be disciplined in part because, among other reasons, his
appellate brief was not “reasonably coherent”).
We sometimes invoke Rule 28 when the briefing is too
abbreviated and sketchy to facilitate review. See, e.g., John v.
Barron, 897 F.2d 1387, 1393 (7th Cir. 1990); Zelazny v. Lyng,
853 F.2d 540, 542 n.1 (7th Cir. 1988); Sanchez v. Miller, 792 F.2d
694, 703 (7th Cir. 1986). But there is no functional difference
between a scanty brief and an overly long, borderline-
unintelligible brief. Both require us to supply the legal
research and organization to make sense of the party’s
arguments. Smith v. Town of Eaton, 910 F.2d 1469, 1471 (7th
Cir. 1990). In both cases we are frustrated in performing our
review function and in evaluating the judgment below. Id.
Although we disregarded McCurry’s factual assertions
because they are unsupported (given the judge’s enforce-
ment of Rule 7.1(D)), we conclude with an observation about
their substance. McCurry’s brief asserts (among other things)
that Kenco and Mars fostered a workplace environment
where racist acts, including the attempted murder (by
forklift) of an African-American employee, went unpun-
ished. It asserts that consumers of Mars products “could
have been affected by food products contaminated by ver-
min or their feces.” And it asserts that Kenco’s management
No. 18-3206 16
“engaged in various forms of psychological warfare” by
“contriving scenarios in which African Americans were
publicly reprimanded and falsely accused of ‘smelling like
weed.’” These baseless assertions are shockingly irresponsi-
ble.
Because we have a duty to “maintain public confidence
in the legal profession” and “protect[] the integrity of the
judicial proceeding,” Doe v. Nielsen, 883 F.3d 716, 718 (7th
Cir. 2018) (quotation marks omitted), we confronted
Hoffman about his brief at oral argument. He replied that he
is a “solo practitioner” who tries “to get the help of … clients
and whoever can provide help to [him]” and then “merge[s]
that information.” Whatever that means, it in no way excus-
es this unprofessional conduct.
Hoffman’s filings fall far below the reasonable standards
of practice. We therefore order him to show cause within
14 days why he should not be sanctioned or otherwise
disciplined under Rules 28 and 38 of the Federal Rules of
Appellate Procedure. We also direct the clerk of this court to
send a copy of this opinion to the Illinois Attorney Registra-
tion and Disciplinary Commission for any action it deems
appropriate.
AFFIRMED; ORDER TO SHOW CAUSE ISSUED