David Dyson v. Megan Brennan ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2018 *
Decided May 11, 2018
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 17-2552
DAVID R. DYSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:14-CV-389
MEGAN J. BRENNAN, Postmaster General,
Defendant-Appellee. Paul R. Cherry,
Magistrate Judge.
ORDER
David Dyson, an African-American mechanic for the Postal Service, sued the
Service under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e—2(a)(1), 3(a).
He asserts that the Service discriminated against him based on his race and sex by
cancelling an overtime shift and harassing him and that it retaliated against him for
filing a charge of discrimination. The district court entered summary judgment for the
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-2552 Page 2
Postal Service. Because a reasonable factfinder could not conclude that Dyson’s race or
sex motivated the loss of an overtime shift or any harassment that he says he
experienced, or that the Service retaliated against him for filing his charge, we affirm.
Dyson’s regular shift ran from Tuesdays through Saturdays at the Postal
Service’s distribution center in Gary, Indiana. The Service cancelled Dyson’s overtime
shift scheduled for a Sunday in the fall of 2012 after he took unscheduled leave on the
previous Friday and Saturday. The collective bargaining agreement provided that
employees on leave must be passed over for overtime. Weeks later, a white mechanic,
Paula Garton, took two unscheduled days off before returning to work for a scheduled
Saturday shift and then a Sunday overtime shift. Dyson grieved the cancellation of his
overtime shift, comparing his circumstances to Garton’s. (Regarding the cancelled shift,
Dyson also filed with the Equal Employment Opportunity Commission a race and sex
discrimination charge, which he told his supervisor, Bernyce Thompson, about.) After
he filed his grievance, the president of Dyson’s local union opined that Dyson’s and
Garton’s different treatment reflected “feminist favoritism.” The grievance was settled
with Dyson receiving an overtime shift on a day of his choosing.
During the three years after his overtime shift was cancelled, Dyson experienced
incidents that he believes reflect a work environment that was sexually and racially
hostile and retaliatory. He mentions two of these incidents on appeal. First, in 2014
Thompson told Dyson that he was on a list of workers required to provide a medical
note upon returning from sick leave. Second, over a year later, Dyson took three days’
sick leave without providing a medical note by the end of the third sick day, as
Thompson had directed. (He did so five days later.) Thompson designated him as
absent without leave, so the Service did not pay him for these days. Dyson filed a
grievance and eventually was paid for that time.
This litigation followed, leading to two rulings that Dyson contests on appeal.
The first ruling came after the Postal Service answered the complaint. It admitted that it
cancelled Dyson’s, and not Garton’s, overtime shift in the fall of 2012, but it denied that
sex or race motivated the cancellation. Dyson responded by moving for judgment on
the pleadings, see FED. R. CIV. P. 12(c). He argued that, by this admission, the Service
“confess[ed] that plaintiff Dyson was discriminated against based upon his race and sex
and in violation of Title VII.” A magistrate judge, presiding by consent, see 28 U.S.C.
§ 636(c)(1), denied the motion, ruling that the pleadings reflected a genuine issue of
material fact regarding the Service’s motive for cancelling his overtime shift.
No. 17-2552 Page 3
The second ruling is the magistrate judge’s decision to grant the Postal Service’s
motion for summary judgment. The judge ruled that no reasonable factfinder could
conclude that Dyson’s race or sex caused the Postal Service to cancel his overtime shift.
Dyson and Garton were not similarly situated under the terms of the union contract, the
judge explained, because Garton, unlike Dyson, had worked on the day before her
overtime shift. Regarding the hostile-work-environment claim, the judge reasoned that
no evidence suggested that the incidents Dyson identified were objectively offensive or
linked to his race or sex. And on the retaliation claim, the judge concluded that Dyson
suffered no material adverse action.
On appeal Dyson first challenges the denial of his motion for judgment on the
pleadings. He says that the Postal Service’s answer shows that the Service discriminated
against him based on his race and sex because it admitted that it cancelled his overtime
shift but not Garton’s. He further contends that the Service violated Federal Rule of
Civil Procedure Rule 8(b) by admitting part of one allegation in his complaint but not
another part. Both arguments are wrong. The judge properly denied Dyson’s motion
because the Postal Service denied that sex or race motivated the divergent treatment of
Dyson’s and Garton’s overtime schedules. Thus, the pleadings do not show that the
Postal Service discriminated against Dyson. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993); Unite Here Local 1 v. Hyatt Corp., 862 F.3d 588, 595 (7th Cir. 2017).
Further, the Postal Service’s answer complied with Rule 8(b) by meeting the
requirements of its fourth subprovision: “A party that intends in good faith to deny
only part of an allegation must admit the part that is true and deny the rest.” FED. R.
CIV. P. 8(b)(4).
Dyson also contests the entry of summary judgment on his claims that the
Service discriminated against him based on his race and sex by cancelling his overtime
shift. He offers three arguments. First, he repeats that the Service cancelled his overtime
shift but not Garton’s, and he maintains that they were similarly situated because they
were both mechanics in the Gary facility’s maintenance department and took
unscheduled days off before scheduled overtime shifts. Second, he contends that the
favorable settlement of his grievance is evidence of discrimination. Third, he argues that
his union president’s assertion that “feminist favoritism” explained Garton’s
opportunity to work overtime would allow a reasonable factfinder to find
discrimination.
No. 17-2552 Page 4
None of these arguments undermines the entry of summary judgment. First,
Garton is not a suitable comparator to Dyson. Unlike Dyson, Garton was not “on leave”
the day preceding her overtime shift, so the part of the union contract requiring that the
Postal Service pass over for overtime those on leave did not apply to her as it did to
him. See David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225–27 (7th Cir.
2017). Second, the settlement of Dyson’s grievance was not accompanied by any
explanation, so a factfinder could only speculate whether the settlement is evidence that
race or sex animus motivated the Service’s cancellation of his overtime shift. Finally, the
lay opinion of Dyson’s union representative is inadmissible under Federal Rule of
Evidence 701 because the record contains no basis for his opinion.
Dyson next addresses his remaining claims about harassment and retaliation. He
asserts that a reasonable factfinder could conclude that the Postal Service harassed him
by requiring medical documentation for his sick-leave absences. But the district court
correctly ruled that Dyson presented no evidence that this requirement was based on
his race or sex. See Poullard v. McDonald, 829 F.3d 844, 859 (7th Cir. 2016). That leaves his
retaliation claim. Dyson contends that, by designating him as absent without leave
during his three sick days (after he did not timely supply a medical note), Thompson
retaliated for the EEOC charge that he filed three years earlier. But no reasonable
factfinder could conclude Dyson’s EEOC charge motivated Thompson’s action.
See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). The three-year time
span is too substantial to infer retaliation. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 274 (2001) (concluding that 20-month gap between protected activity and adverse
action “suggests, by itself, no causality at all”). Moreover, the Postal Service’s
unrebutted reason for treating him as absent without leave—that he did not turn in a
medical note by the time Thompson specified—is not "fishy enough to support an
inference that the real reason must be discriminatory.” Loudermilk v. Best Pallet Co., LLC,
636 F.3d 312, 315 (7th Cir. 2011).
Dyson makes two final arguments. First, he contends that the magistrate judge
did not draw all reasonable inferences in his favor when ruling on the motion for
summary judgment. But our review is de novo, Austin v. Walgreen Co., 885 F.3d 1085,
1087 (7th Cir. 2018), and we have drawn all reasonable inferences in Dyson’s favor
without deferring to the judge’s interpretation of the record. Second, he asserts that the
Postal Service did not respond to his statement of additional facts and therefore the
judge erred by not deeming them “admitted.” But Dyson did not provide a “Statement
of Genuine Disputes,” as required by the district court’s Local Rule 56–1(b)(2).
No. 17-2552 Page 5
Consequently, the judge did not abuse his discretion in choosing to consider only those
facts in Dyson’s submission that were supported by the record. “How strictly to apply a
local rule is left to the district court’s sound discretion.” Hummel v. St. Joseph Cty. Bd. of
Comm’rs, 817 F.3d 1010, 1017 (7th Cir. 2016).
We have considered Dyson’s other arguments, and none has merit.
AFFIRMED