Eric Huang v. Continental Casualty Company , 754 F.3d 447 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1300
ERIC HUANG,
Plaintiff-Appellant,
v.
CONTINENTAL CASUALTY COMPANY,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 1049 — George W. Lindberg, Judge.
ARGUED DECEMBER 6, 2012 — DECIDED JUNE 13, 2014
Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Eric Huang, a former systems and
software engineer, appeals the grant of summary judgment
against him in this employment-discrimination action. He
principally asserts that, by firing him, Continental Casualty
Company discriminated against him because he is Chinese and
retaliated against him for complaining about workplace issues.
(The parties refer to Continental as “CNA,” Continental’s
2 No. 12-1300
parent corporation; for consistency, we follow their convention
in this opinion.) Because the undisputed evidence shows that
Continental lawfully fired Huang because he refused to accept
legitimate work assignments, we affirm the district court’s
judgment.
The events that precipitated this lawsuit largely began in
2007. At that time, Huang had been working for CNA, a
provider of commercial insurance products, for eight years. In
March, Huang’s supervisor transferred him to a new, four-
member team with different job duties. CNA required every
member of Huang’s four-person team to be on “pager duty”
every fourth weekend. Pager duty entailed carrying a pager at
home and being available to respond to it 24 hours a day
throughout the assigned weekend.
Beginning in August 2007, Huang repeatedly refused to
work the weekend hours that CNA assigned him for pager
duty, citing family obligations. He persisted in his refusal even
after his supervisor and human resources reminded him that
pager duty is a work requirement, equally shared by all team
members, and told him that CNA could fire him for refusing
it. Huang offered to work from the office on Sundays in
exchange for having Mondays off but refused to carry a pager
and remain on call while at home during the weekends.
Around this time, Huang made a workplace complaint.
Huang’s supervisor had told him, for reasons unrelated to his
refusal to comply with pager duty, that Huang was “pissing
[him] off.” In response, Huang emailed the human resources
department to complain about the comment. (Two years
earlier, Huang had also complained to human resources about
No. 12-1300 3
another supervisor’s “favoritism” toward some co-workers,
but the nature of the complaint is not in the record.)
In December 2007, four months after first refusing to
comply with the on-call directive, Huang’s supervisor and a
human resources agent met with him and gave him one final
opportunity to commit to a weekend, work-from-home
schedule. They again warned him that CNA would fire him if
he did not comply with the weekend-hours job requirement.
When he again refused, CNA followed through and dis-
charged him.
In compliance with CNA’s practice following termination
of employment, its human resources agent asked Huang for a
list of his belongings so that someone could retrieve them from
his desk. When Huang refused to provide the list and de-
manded to be let back to his work station, human resources
called a security guard. Police officers eventually escorted
Huang out of the building and arrested him, although CNA
did not press charges.
After pursuing his administrative remedies, Huang filed
this suit. Only two of his claims are relevant to this appeal.
First, he contends that the company discriminated against him
based on his race and national origin by firing him, in violation
of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e–2000e-17. Second, he argues that by firing
him and having him arrested, CNA unlawfully retaliated
against him for his earlier complaints about supervisors. He
relies only on the indirect method of proving these claims.
The district court granted CNA’s motion for summary
judgment. The court determined that, because he ignored
4 No. 12-1300
pager duty, Huang did not provide evidence that he had met
the company’s legitimate job expectations. In reaching this
conclusion, the court rejected Huang’s argument that, because
the pager-duty requirement was not included in his job
description, it was not a legitimate requirement. The district
court also distinguished two employees that Huang cited as
similarly situated, explaining that neither refused to work from
home on weekends. Finally, Huang’s retaliation claims failed,
the court reasoned, because he did not supply evidence that he
had engaged in the protected activity of complaining about
unlawful discrimination.
We review the district court's grant of summary judgment
de novo, examining the record in the light most favorable to
Huang and construing all reasonable inferences from the
evidence in his favor. See, e.g., Naficy v. Ill. Dep't of Human
Servs., 697 F.3d 504, 509 (7th Cir. 2012). Both Title VII and
§ 1981 forbid an employer from firing an employee on account
of his race or national origin, 42 U.S.C. § 2000e-2 (Title VII);
Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 849–50 (7th
Cir. 2008) (§ 1981), and retaliating against an employee who
protests unlawful employment discrimination, 42 U.S.C.
§ 2000e-3(a) (Title VII); CBOCS West, Inc. v. Humphries, 553 U.S.
442, 451 (2008) (§ 1981).
We begin our analysis with Huang’s discrimination claim.
On appeal, Huang argues that he supplied evidence of a prima
facie case of race discrimination under the indirect method. To
establish a prima facie case of discrimination under either Title
VII or § 1981, Huang needed to provide evidence that (1) he is
a member of a protected class; (2) he was meeting his em-
ployer’s legitimate performance expectations; (3) he suffered
No. 12-1300 5
an adverse employment action; and (4) other similarly-situ-
ated, non-Chinese (or non-Asian) employees were treated
more favorably. See Montgomery v. Am. Airlines, Inc., 626 F.3d
382, 389, 394 (7th Cir. 2010); Hobbs v. City of Chicago, 573 F.3d
454, 460 n.1 (7th Cir. 2009); Antonetti v. Abbott Labs., 563 F.3d
587, 591 n.4 (7th Cir.2009). If he fails to provide evidence of any
one of these factors, his claim fails. Montgomery, 626 F.3d at 394.
Only the second and fourth elements of the prima facie case
are at issue on appeal, but because Huang contends that CNA
enforced its job expectations unequally, these two elements
merge. See Peele v. County Mut. Ins. Co., 288 F.3d 319, 329 (7th
Cir. 2002). Huang contends that for three reasons he presented
sufficient evidence that he met CNA’s legitimate expectations.
First, he contends that he offered the company a suitable
alternative to the weekend pager-duty requirement by propos-
ing to come into work on Sundays instead of Mondays.
Second, he argues that he had good reason for refusing pager-
duty: he wanted more time with his family. Third, he maintains
that pager duty was not legitimate because it was not written
in his job description.
All three of Huang’s arguments are meritless. First,
employers are entitled to determine their scheduling needs,
see Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035 (7th Cir.
1999), and decide whether employees are satisfying them,
see Collins v. American Red Cross, 715 F.3d 994, 1000 (7th Cir.
2013); Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 600
(7th Cir. 2010). Huang’s offer to work Sundays could not
satisfy CNA’s needs because the company needed him on call
throughout all of Sunday and Saturday, and he refused to
6 No. 12-1300
comply. Second, although a longing to spend more time with
family is understandable, it does not undermine the legitimacy
of a work schedule that cuts into family time. Grube v. Lau
Indus. Inc., 257 F.3d 723, 729 (7th Cir. 2001). Nor does Huang’s
preference for home life invalidate CNA’s conclusion that
Huang did not meet the company’s work expectations.
See Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1091–92 (7th Cir.
2000). Finally, CNA need not have memorialized its pager duty
in a job description to make it a valid employment expectation.
Renken v. Gregory, 541 F.3d 769, 773 (7th Cir. 2008) (explaining
that “[d]etermining what falls within the scope of an em-
ployee's duties is a practical exercise that focuses on the duties
an employee actually is expected to perform” because
“[f]ormal job descriptions often bear little resemblance to”
those duties) (internal quotation marks and citation omitted).
Huang also provides no evidence that CNA treated other
similarly situated non-Chinese workers more favorably. To
survive summary judgment, Huang needed to identify another
employee, outside of his protected class, who refused a
comparable work assignment but was not fired. Montgomery,
626 F.3d at 395; Hanners v. Trent, 674 F.3d 683, 692–93 (7th Cir.
2012). He has not. In the district court, he compared himself to
two other employees. One is a worker whom CNA permitted
to arrive and leave two hours early on some weekdays; the
other asked to work from home and was not fired for asking.
But Huang presented no evidence that either of these two
employees repeatedly refused, as Huang did, a company order
to remain on-call once every four weekends, so they are not
similarly situated. Without evidence of a comparably insubor-
No. 12-1300 7
dinate co-worker, Huang failed to show a prima facie case of
discrimination.
Despite failing to establish a prima facie case, Huang
maintains on appeal that CNA’s proffered reason for firing
him—his refusal to accept weekend on-call assignments—was
pretextual. But because Huang has not satisfied his prima facie
case, an argument about pretext does not even arise.
See Montgomery, 626 F.3d at 394. In any case, Huang’s pretext
argument just recycles his already rejected contention that the
on-call requirement was illegitimate and unequally applied.
Thus, for the same reasons that we rejected the prima facie
case, the pretext argument also fails. Collins, 715 F.3d at 1000;
Duncan v. Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486, 491
(7th Cir. 2008).
Finally, Huang argues that he provided evidence that CNA
retaliated against him by firing him and having him arrested.
But to survive summary judgment on this claim, he needed to
present evidence that he made a complaint about unlawful
discrimination. Tomanovich v. City of Indianapolis, 457 F.3d 656,
663 (7th Cir. 2006). Though he did complain about workplace
issues twice (an unelaborated protest about “favoritism” and
an objection to his supervisor saying that Huang was “pissing
[him] off”), Huang provided no evidence that these two
complaints were about unlawful discrimination. See id.; Miller
v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000).
Without evidence that Huang engaged in protected conduct,
the retaliation claim fails. Id.
Accordingly, we AFFIRM the judgment of the district court.