Raymond, Wanda v. Ameritech Corp ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1855
WANDA RAYMOND,
Plaintiff-Appellant,
v.
AMERITECH CORPORATION, d/b/a SBC AMERITECH,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 4509—Ronald A. Guzman, Judge.
____________
ARGUED NOVEMBER 8, 2005—DECIDED MARCH 29, 2006
____________
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Wanda Raymond appeals the
district court’s grant of summary judgment in favor of
Ameritech Corp., d/b/a SBC Ameritech (“SBC”),1 which
disposed of her employment discrimination lawsuit. Ray-
mond initially claims the district court abused its discretion
1
After the appeal was filed, SBC’s merger with AT&T was
finalized. As a result, SBC adopted the AT&T name. http://en.
wikipedia.org/wiki/SBC_Communications (last visited March 23,
2006). To remain consistent with the parties’ usage, as well as the
proceedings below, we will continue refer to the defendant-
appellee as SBC.
2 No. 05-1855
by refusing to consider her brief and supporting materials
opposing SBC’s motion for summary judgment (her “re-
sponse”), which Raymond purportedly filed by mailing it the
day it was due. Raymond asserts that as a result, summary
judgment was erroneously granted in favor of SBC. For the
following reasons, we affirm the grant of summary judg-
ment.
I. BACKGROUND
Wanda Raymond filed a complaint in June 2003 alleg-
ing SBC fired her because of her age (in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
(“ADEA”)), and her race and sex (in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”)). For nearly a year after the complaint was filed, the
parties engaged in discovery under the supervision of
Magistrate Judge Edward Bobrick, who twice extended the
discovery cutoff and twice extended the summary judgment
briefing schedule.
After the first extension of summary judgment briefing,
the magistrate judge ordered discovery to be closed on
February 27, 2004, allowing only scheduled depositions
to take place thereafter. Raymond deposed Cinthia Wil-
liams, employed in SBC’s human resources department, and
claimed from that deposition she determined Eliska
Paratore, the human resources director, would have more
knowledge of Raymond’s termination. Raymond gave SBC
notice of Paratore’s deposition on March 24.
On March 25, 2004, the magistrate judge held a status
hearing, during which the parties quibbled about discovery.
Raymond asked that discovery be extended so that
she could depose Paratore because Paratore had received an
email relating to Raymond’s termination. SBC opposed the
deposition, noting that the email was provided to Raymond
in December 2003. Despite expressing strong doubts about
No. 05-1855 3
the relevance of what Paratore, and another SBC employee
Raymond sought to depose, would have to say, initially the
magistrate judge was inclined to allow Raymond to sched-
ule two new depositions. But that initial view changed
when the magistrate judge then turned to the subject of
Raymond’s deposition.
SBC previously had deposed Raymond for seven hours
and asked for permission to complete it. Raymond sought to
limit the remainder of the deposition to one hour. The
magistrate judge declined to do so, however, observing
that Raymond had brought a wide array of claims, includ-
ing a claim for emotional distress, and noting that SBC
previously had treated Raymond in a civil manner. Again
Raymond balked at the notion of being deposed without
a time limit. Citing Raymond’s reluctance to cooperate
and her prior knowledge of the individuals she wanted to
depose, the magistrate judge ordered discovery to be
closed and that no further discovery efforts be made aside
from the completion of SBC’s deposition of Raymond. On
May 6, 2004, District Judge Ronald A. Guzman issued an
order adopting the magistrate judge’s rulings denying
further discovery by Raymond.2
On May 25, 2004, the magistrate judge extended the
summary judgment briefing schedule for the second time,
2
We need only briefly address Raymond’s claim that the discov-
ery period should have been extended so she could depose Eliska
Paratore. We review the district court’s decision not to reopen
discovery for abuse of discretion. Kalis v. Colgate-Palmolive Co.,
231 F.3d 1049, 1056 (7th Cir. 2000) (citation omitted). Raymond’s
argument has no merit. Raymond knew of Paratore months before
discovery closed, her request was late, and the expected value of
Paratore’s testimony was weak. Moreover, Raymond caused the
magistrate judge to close discovery by resisting SBC’s legitimate
effort to continue her deposition. The district judge acted within
his discretion in denying a further extension of the time for
discovery.
4 No. 05-1855
establishing the following deadlines: SBC’s summary
judgment motion was to be filed by August 2, 2004; Ray-
mond’s response was to be filed by September 3, 2004; and
SBC’s reply was to be filed by September 20, 2004.
On August 2, 2004, SBC filed its motion for summary
judgment. SBC served the motion by mailing it to Ray-
mond’s counsel but used an old address, which resulted
in Raymond’s counsel not receiving the motion until August
10. On August 16, Raymond asked the court for an exten-
sion until October 4 to file her response, citing the delay in
service and a planned extended vacation that would keep
Raymond’s counsel out of the country from August 24 to
September 13. On August 18, the district judge granted in
part Raymond’s request by giving eighteen additional days,
making the response due September 21, 2004. The order
granting this extension request made no mention of
whether or not additional extensions would be given.
On September 16, Raymond’s counsel filed a second
motion for an extension of time, citing as reasons for delay
his vacation, his illness, his personal business matters, and
his co-counsel’s busy schedule. The district judge denied
this motion the next day, keeping the September 21, 2004,
deadline intact. Upon learning of the denial, Raymond’s
counsel worked “almost around the clock” on the response.
On September 20, the attorneys for each party spoke
on the phone, as confirmed by SBC’s follow-up letter and
fax to Raymond’s counsel. In part, SBC’s writing stated,
“[I]f we are unable to pick up the response brief tomorrow
night, we will pick it up on [the morning of September 22].”
SBC’s agent obtained Raymond’s response at her counsel’s
office on the afternoon of September 22. On September 24,
SBC complained in writing (again by fax and mail) to
Raymond’s counsel that the papers SBC was given did not
include a copy of the notice of filing or a complete Local
Rule 56.1 statement, as required by the Northern District
No. 05-1855 5
of Illinois Local Rules. Additionally, SBC’s September 24
writing indicates that Raymond remained obligated to
mail the response to SBC.
Raymond’s counsel mailed the response to the district
court clerk some time before midnight on September 21, the
filing deadline imposed by the court. The U.S. Postal
Service’s tracking system confirmed that the response
was delivered to the district court clerk’s office at 10:24 a.m.
on September 22. Raymond’s response was not stamped
“filed” until September 24.
On September 24, noting that Raymond did not file her
response on or before the September 21 deadline, the
district judge informed the parties that it would rule on
SBC’s summary judgment motion on the merits and without
Raymond’s response. On September 29, Raymond filed a
motion for reconsideration, asserting that her late filing
was an excusable mistake and that she had new evidence.
That same day, Raymond filed an amended certificate of
service, in which Raymond’s counsel certified that a copy of
Raymond’s response was given to SBC’s counsel on Septem-
ber 22. The district judge rejected these arguments and
denied the motion to reconsider.
On March 4, 2005, the district judge issued a ruling
holding that because of Raymond’s failure to comply
with Local Rule 56.1, SBC’s submitted facts were deemed
admitted. Judge Guzman examined SBC’s motion on the
merits, and, finding no genuine issues of material fact,
granted summary judgment. On appeal, Raymond argues
first, that her response was timely, and second, if late, her
negligence should have been excused. Either way, according
to Raymond, the district court erred by refusing to take into
account her opposition to SBC’s motion for summary
judgment, which she claims raises a dispute of material
fact.
6 No. 05-1855
II. ANALYSIS
A. Raymond’s Response
Raymond argues that the district court abused its discre-
tion by determining she filed her response late and by
subsequently refusing to consider it. “We review a district
court’s decision concerning whether a litigant complied with
a local rule, such as Local Rule 56.1, for an abuse of discre-
tion.” Cichon v. Exelon Generation Co., 401 F.3d 803, 809
(7th Cir. 2005) (citation omitted). Specifically, we have held
that district courts are entitled to expect strict compliance
with Local Rule 56.1, which requires that a party opposing
summary judgment “serve and file” its brief and supporting
materials. N.D. Ill. R. 56.1(b); Ammons v. Aramark Unif.
Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (citations
omitted).
Raymond claims she either complied with, or substan-
tially complied with, Rule 5(d) of the Federal Rules of
Civil Procedure, depending upon which of her acts consti-
tute a “filing.” For her “actual compliance” argument,
Raymond asserts she met the district court’s deadline
because she mailed her response prior to midnight on the
day it was due. For her “substantial compliance” argument,
Raymond claims that with no firm deadline in the Rules,
she was subject only to Rule 5(d)’s requirement merely to
file within a “reasonable time” after serving SBC. Raymond
says she did this by “filing” her response when it was
received by the clerk’s office at 10:42 a.m. the day after the
deadline. Raymond is wrong in all respects.
Filing with the court is defined in Rule 5(e) which states:
“The filing of papers with the court . . . shall be made by
filing them with the clerk of court, except that the judge
may permit the papers to be filed with the judge . . .” (See
also N.D. Ill. Rule 5.4.) The posting of papers addressed to
the clerk’s office does not constitute “filing” under Rule 5(e).
No. 05-1855 7
Unlike some state court rules3 the Federal Rules of Civil
Procedure do not authorize filing to be accomplished by
deposit of papers in the mail.
Thus, Raymond could not have filed her response on
September 21 by dropping it in the mail before midnight, or
the next morning, when according to the postal receipt it
was received. Raymond has not provided any detail regard-
ing the district court’s or Judge Guzman’s filing procedure
that would explain the two-day lag between when the
response was allegedly received by the district court clerk
and when it was processed. Therefore the earliest filing
date which for which there is evidentiary support is Sep-
tember 24, the date the response was stamped “filed.”
As for the governing deadline, Raymond does not ex-
plain how Rule 5(d)’s “reasonable time” standard prevails
over a date set by a court. Rule 5(d) is a default rule,
applicable to most interactions between litigating
parties and between parties and the courts. Rule 5(d) does
not by its terms eradicate the effect of court-imposed
deadlines. Raymond merely quotes Blank v. Bitker, 135
F.2d 962, 965 (7th Cir. 1943), which noted, “[T]here is no
requirement in the Federal Rules of Civil Procedure as
to filing. . . . And Rule 5(d) permits filing with the court
within a reasonable time after service.” True, but this
does not mean that Rule 5(d) trumps a deadline set by a
court, so that the deadline to file is established by when
service occurs. Blank involved one party’s attempt to benefit
from the other party’s filing its answer three days late,
3
For example, the Indiana Rules of Trial Procedure indicate that
filing may be accomplished by a number of methods, including:
“Mailing to the clerk by registered, certified or express mail,
return receipt requested; . . . Filing by registered or certified mail
. . . shall be complete upon mailing . . . .” Ind. Trial Rule 5(F).
8 No. 05-1855
despite timely service. Id. Blank did not deal with the trial
court’s enforcement of its deadlines.4
The rule which does apply is Rule 6(b), which clearly
gives courts both the authority to establish deadlines and
the discretion to enforce them. Reales v. Consol. Rail Corp.,
84 F.3d 993, 996 (7th Cir. 1996) (explaining that in manag-
ing their caseloads, district courts “are entitled—indeed
they must—enforce deadlines”). The September 21 deadline
set by the court was binding on Raymond. On that date
Raymond had failed to meet the filing and service require-
ments of Local Rule 56.1. Raymond’s response was late by
4
We note that Raymond’s argument also rests upon the assump-
tion that SBC was properly and timely served by her compliance
with SBC’s demand to make a copy available at Raymond’s
counsel’s office prior to midnight on September 21. Although
this is not a prescribed method of service under Rule 5(b)(2)(A-C),
Rule 5(b)(2)(D) does allow service by alternative means if
the party to be served consents in writing. Our review of the
record shows that SBC did ask in writing (by fax and mail) that
Raymond’s counsel call SBC’s counsel as soon as the response was
ready.
However, SBC was motivated by its own deadline to reply
to Raymond’s response in two weeks, so it appears that SBC made
its “demand” only after Raymond’s counsel indicated the response
would be late. Raymond does not argue otherwise. A request made
under duress hardly constitutes consent to a specific method of
service. SBC continued to hold Raymond responsible for mailing
the response, but the record does not indicate that this ever
occurred. In any event, by Raymond’s own admission, the earliest
Raymond’s response was made available to SBC was September
22, the day after the deadline. Moreover, the papers SBC did
receive did not comply with Local Rules 56.1(b) (missing pages)
and 5.5(b) (no certificate of service). So even if Raymond did file
on time, she did not comply with Local Rule 56.1(b)’s service
requirement because SBC had not been properly served on
September 21.
No. 05-1855 9
any measure, which leads us to the only viable argument
Raymond makes—namely, whether the district court
abused its discretion in refusing to accept Raymond’s late
filing.
Raymond claims the district court abused its discretion by
not finding “excusable neglect.” In Pioneer Investment
Services Co. v. Brunswick Associates Ltd. Partnership, 507
U.S. 380, 395 (1993), the Supreme Court broadly defined
“excusable neglect.” We have held that Pioneer applies
whenever “excusable neglect” appears in the federal
procedural rules. See United States v. Brown, 133 F.3d 993,
996 (7th Cir. 1998) (applying Pioneer to Federal Rule of
Appellate Procedure 4(b)); Robb v. Norfolk & W. Ry. Co.,
122 F.3d 354, 359 (7th Cir. 1997) (applying Pioneer to Rule
60(b)(1)); Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132, 134
(7th Cir. 1996) (“[T]he tenor of [Pioneer] is that the term
[excusable neglect] bears the same or similar meaning
throughout the federal procedural domain.”) (citation
omitted). Rule 6(b)(2) gives courts discretion in most
situations to forgive missed deadlines by reason of “excus-
able neglect.” Hence, our standard of review of the dis-
trict court’s refusal to make such a finding is abuse of
discretion. In Pioneer, the Court held that the standard
for review of a rejection of excusable neglect:
is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s
omission. These include . . . the danger of prejudice
to the [defendant], the length of the delay and its
potential impact on judicial proceedings, the rea-
sons for the delay, including whether it was within
the reasonable control of the movant, and whether
the movant acted in good faith.
Pioneer, 507 U.S. at 395 (citation omitted).
First, SBC was under its own deadline to file its reply
to Raymond’s response, so any delay of service on Ray-
10 No. 05-1855
mond’s part directly impacted SBC by reducing the time
available for SBC to reply. It was SBC who made the effort
to mitigate its prejudice by sending an agent to Raymond’s
office to pick up the response. The copy SBC received was
late and incomplete. Although SBC does not allege any
specific harm by the delay, certainly there was a danger
of prejudice to SBC.
Second, is consideration of the length of delay and its
impact on the proceedings below. In Spears v. City of
Indianapolis, 74 F.3d 153, 156-57 (7th Cir. 1996), the
district court refused to grant—under Rule 6(b)(1)—a one-
day enlargement for the plaintiff to file supporting ma-
terials for his already-filed brief opposing summary judg-
ment. Apparently the delay was unforeseeable, having been
caused by a sudden computer failure, but the court had
already granted two extensions. Id. at 157-58. Affirming, we
noted:
We live in a world of deadlines. If we’re late for the
start of the game or the movie, or late for the
departure of the plane or the train, things go
forward without us. The practice of law is no excep-
tion. A good judge has a right to assume that
deadlines will be honored.
Id. at 157.
A court’s decision to grant an extension of a deadline
yet to pass under Rule 6(b)(1) (as in Spears) presents a
slightly different situation than a court’s decision to ex-
cuse missing a deadline which has already passed under
Rule 6(b)(2) (the instant case). But court-imposed deadlines
are no less binding merely because they have passed. The
overriding principle at stake involves the district court’s
ability to mitigate the scourge of litigation delays by setting
deadlines “to force parties and their attorneys to be diligent
in prosecuting their causes of action.” Id. (quoting Geiger v.
No. 05-1855 11
Allen, 850 F.2d 330, 331 (7th Cir. 1988)). In the context of
summary judgment, we have held strict enforcement of
Local Rule 56.1 is “justified in light of the district court’s
significant interest in maintaining the integrity of its
calendar.” Wienco, Inc. v. Katahn Assocs., Inc., 965 F.2d
565, 568 (7th Cir. 1992).
Contrary to Raymond’s assertion, the fact that the district
judge did not ultimately issue his order granting summary
judgment to SBC for several months is irrelevant. Rather,
our focus is on the circumstances as they existed at the
time. In Raymond’s case, 15 months had passed since the
complaint was filed. The deadline to close discovery had
been extended twice. The summary judgment briefing
schedule had been pushed back twice. As we previously
found, the filing date of the reply was September 24, three
days late. Excusing Raymond’s delay likely would have
caused the court to extend SBC’s deadline to reply, again
pushing back the case on the court’s calendar.
Third, we look at the reasons for the delay. On appeal,
Raymond emphasizes her receipt of SBC’s motion for
summary judgment was ten days late. This argument
ignores what the record makes clear—that the district
court, on Raymond’s motion, previously granted an enlarge-
ment of 18 days to accommodate this delay as well as
Raymond’s counsel’s vacation. Raymond also argues she did
not have enough time to respond to SBC’s motion for
summary judgment because it was a difficult, fact-intensive
case and that, after the denial, Raymond’s counsel worked
around the clock to prepare the response—about four days
and nights. But Raymond’s counsel does not claim to have
worked around the clock before the denial, and the case was
no less “fact-intensive” at that time. Nor does the record
indicate that Raymond’s counsel started to prepare the
response during the time after actually receiving SBC’s
motion for summary judgment and before leaving for
vacation, a period of two weeks. Under these circumstances,
12 No. 05-1855
Raymond had ample time to prepare her response, the
prevailing reason for the delay being within the reasonable
control of her counsel. Moreover, Raymond’s reasons to
enlarge the time were simply insufficient.
Raymond asserts she acted in good faith, and we do not
disagree. But “the district court need not show repeated,
wilful and recalcitrant conduct” to enforce its deadlines.
Wienco, 965 F.2d at 568. In Reales, we upheld the district
court’s refusal to consider the plaintiff’s one-day-late
response after the plaintiff had requested multiple exten-
sions, some of which were made after the underlying
deadlines had passed. 84 F.3d at 997. Raymond claims
she lacked the “reckless disregard” for deadlines as the
plaintiff did in Reales. But “reckless disregard” is no-
where to be found in Reales, and to require such a show-
ing would run contrary to the abuse of discretion standard.
Raymond cites Bolt v. Loy, 227 F.3d 854, 856 (7th Cir.
2000), arguing that she was entitled to notice from the court
that the first extension was final and that no fur-
ther extensions would be allowed. Bolt involved the dis-
trict court’s outright dismissal of a case with prejudice,
compared to the instant case, in which the district court
chose not to consider a late-filed response to summary
judgment, a less severe remedy. See Reales, 84 F.3d at 997.
That the district court granted summary judgment for
SBC on the merits was secondary to the enforcement of its
deadline. The district judge was not obligated to give
Raymond notice that the September 21 deadline was firm
beyond swiftly denying her second extension request, four
days before the deadline.
In sum, the district judge was within his discretion not to
excuse Raymond’s delay. Raymond had already ob-
tained one extension, giving her 48 days in all, to file her
response. The court gave clear notice of the deadline when
it granted the first extension and when it denied the second.
No. 05-1855 13
Raymond missed the deadline, and her reasons for doing so
were within her control. SBC’s interests were at stake as
well. In managing its calendar, the court was presented
with a case which had dragged on for well over a year and
acted well within its discretion to strictly enforce its own
deadline. Thus properly, the summary judgment motion
was determined only on the Local Rule 56.1 submission of
SBC.
B. The Propriety of Summary Judgment
We review a district court’s grant of summary judg-
ment de novo, “to determine whether there exists a ‘genuine
issue as to any material fact, and [that] . . . the moving
party is entitled to judgment as a matter of law.’ ” Stop-N-
Go of Madison, Inc. v. Uno-Ven Co., 184 F.3d 672, 676 (7th
Cir. 1999) (citation omitted). The motion is appropriately
granted if no reasonable jury could find for the nonmoving
party. Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.
2003). By supporting its motion for summary judgment with
its Local Rule 56.1 statement, SBC shifted the burden of
production to Raymond. See Kaszuk v. Bakery & Confection-
ary Union & Indus. Int’l Pension Fund, 791 F.2d 548, 558
(7th Cir. 1986) (citations omitted). Raymond’s failure to
respond in kind results in deeming admitted
the uncontroverted statements in SBC’s Local Rule 56.1(a)
submission. See Wienco, 965 F.2d at 568 (citations omitted).
However, a nonmovant’s failure to respond to a summary
judgment motion, or failure to comply with Local Rule 56.1,
does not, of course, automatically result in judgment for the
movant. See Reales, 84 F.3d at 997 (citing Tobey v.
Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993)). The
ultimate burden of persuasion remains with SBC to show
that it is entitled to judgment as a matter of law. See
Wienco, 965 F.2d at 568 (citing Herman v. Chicago, 870
F.2d 400, 404 (7th Cir. 1989)).
14 No. 05-1855
We recount the facts underlying Raymond’s lawsuit for
purposes of SBC’s summary judgment motion based solely
upon SBC’s version of events, as reflected in SBC’s support-
ing materials. Raymond, an Asian-American female, was
hired by SBC in 1995 as an account manager and in 1997
became a performance consultant in human resources. In
December 1999, Raymond transferred to the Illinois
Authorized Distributor Sales Team (“Illinois AD Sales
Team”) as a distribution manager and remained in that
position until she was laid off in November of 2001. Ray-
mond was responsible for managing the accounts of autho-
rized distributors, which are outside companies SBC
contracts with to sell its products and services. Essentially,
Raymond’s duties were to bolster distributors’ sales by
preparing business plans, and by training, coaching, and
evaluating their progress.
Prior to the layoffs, the Illinois AD Sales Team consisted
of ten people. That team, including Raymond, was super-
vised by Illinois sales manager John Rozinsky, who in
turn reported to David Conley, a divisional director of sales.
As divisional sales director, Conley had responsibility for all
sales team members located in five states: Illinois, Indiana,
Michigan, Ohio, and Wisconsin. Brian Clark, another
divisional sales director, supervised sales team members in
two other areas. Both Conley and Clark reported to Brian
Jump, Vice President of Mid-Market Sales.
SBC evaluated the performance of its distribution
managers based on sales generated by the distributors,
using “stack rankings” as the primary measurement tool.
The stack rankings broke down distributors’ sales into
four categories and were created on a month-to-date and
year-to-date basis.
On October 26, 2001, SBC announced by email to employ-
ees that there were going to be layoffs due to economic
conditions. In late October 2001, Jump informed Conley and
Clark that five distribution managers positions had to be
No. 05-1855 15
eliminated—four from Conley’s division and one from
Clark’s division. Which managers to lay off was up to
Conley and Clark. Conley decided to reduce his manager
headcount by one per state with the exception of Wisconsin,
which at the time had the fewest distribution managers.
Conley contacted the state sales managers in Illinois,
Indiana, Michigan, and Ohio to obtain their recommenda-
tions of which distribution managers should be laid off from
their respective sales teams.
The first factor Conley discussed with each sales manager
was whether any distribution managers were on a Perfor-
mance Improvement Plan (“PIP”). If so, they would be
selected for the layoff. In three states, three managers fell
into that category: Elana Schafer in Indiana (African-
American, female, 41 years old); Bob Cruickshank in
Michigan (white, male, 51 years old); and Scott Adams in
Ohio (white, male, 36 years old).
None of the distribution managers on the Illinois AD
Sales Team were on PIPs, and sales manager Rozinsky told
his team that no distribution managers in Illinois would be
laid off. But this assurance did not come from sales director
Conley, who never intended to deviate from his plan of
laying off one distribution manager per state.
Conley developed the following criteria to guide his
decision: the August and September 2001 monthly stack
rankings, the current October sales reports (preliminary
stack rankings), the input and recommendation of Rozinsky,
business need, and each employee’s skill set and ability to
be successful. On the stack rankings, Raymond was second
from last in August 2001 and last in September and October
2001. Mike Gottschalk was one spot higher than Raymond
in each month. Conley determined that Gottshalk and
Raymond were the lowest performing distribution manag-
ers.
Conley and Rozinsky discussed the personal strengths
and weaknesses of the distribution managers on the Illinois
16 No. 05-1855
AD Sales Team. Rozinsky told Conley that Raymond’s
knowledge of data products and her sales skills were weak
and that these abilities would be more important in light of
SBC’s change in emphasis with respect to revenue genera-
tion. Conley asked Rozinsky whether Gottschalk or Ray-
mond had more potential for success in the following year.
Rozinsky chose Gottschalk. Conley decided to lay off
Raymond.
Shortly thereafter, Rozinsky asked Conley whether
he would consider laying off Gottschalk instead of Raymond
because Gottschalk would have an easier time finding
another job as a “young guy” and “single.” Conley responded
that those were not valid reasons and not part of the
objective criteria. On November 16, 2001, Conley told
Raymond she was being laid off and that pursuant to SBC
policy, she could reapply for employment in six months.
Raymond was age 46 at the time. After her dismissal,
Raymond’s duties were divided among the remaining
distribution managers on the team.
Raymond’s substantive allegations are that SBC dis-
criminated against her on the basis of her race, sex, and
age. Title VII prohibits an employer from firing an employee
because of the individual’s race or sex. 42 U.S.C. § 2000e-
2(a)(1). The ADEA similarly proscribes employment dis-
crimination on account of a person’s age. 29 U.S.C. § 623.
There are two methods in which a plaintiff may prevail in
an employment discrimination lawsuit: the direct and the
indirect methods. Krchnavy v. Limagrain Genetics Corp.,
294 F.3d 871, 875 (7th Cir. 2002) (citation omitted).
Under the direct method, Raymond must prove that the
motivation behind SBC’s decision to lay her off was due
to Raymond’s race, sex, or age. She may do so by using
direct or circumstantial evidence. Haywood v. Lucent
Techs., Inc., 323 F.3d 524, 529-30 (7th Cir. 2003) (discussing
direct method under Title VII); Radue v. Kimberly-Clark
No. 05-1855 17
Corp., 219 F.3d 612, 616 (7th Cir. 2000) (discussing direct
method under ADEA). Direct evidence of discrimination
would amount to an admission by SBC that Raymond was
terminated on the basis of her race, sex, or age. See Radue,
219 F.3d at 616. The record is barren of anything of this
kind and contains no basis upon which to rationally infer
SBC’s discriminatory animus. For Raymond to defeat
summary judgment, she can only do so under the indirect
method.
McDonnell Douglas Corp. v. Green established the
framework by which a plaintiff can prove discrimination
indirectly. 411 U.S. 792 (1973). “The McDonnell Douglas
framework applies to both Title VII and ADEA claims.”
Krchnavy, 294 F.3d at 875 (citations omitted). Under the
indirect method, there are four elements of Raymond’s
prima facie case: (1) she is a member of a protected class;
(2) she was performing at a level that met her employer’s
legitimate expectations; (3) she was subject to an adverse
employment action; and (4) she was treated differently than
a similarly situated person outside her protected classes.
See id. (citing McDonnell Douglas, 411 U.S. at 802);
O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th
Cir. 2001) (citations omitted). If Raymond could establish
her prima facie case, then the burden would shift to SBC to
“articulate some legitimate, nondiscriminatory reason” for
Raymond’s termination. See McDonnell Douglas, 411 U.S.
at 802. If SBC did so, it would then be up to Raymond to
show SBC’s justification is pretextual. See Robin v. Espo
Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (citation
omitted). As the plaintiff, it is Raymond who bears the
ultimate burden of proof. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 507 (1993) (citation omitted).
SBC concedes the first three elements of Raymond’s
prima facie case, but contests the fourth, arguing that
Raymond was not treated differently than someone simi-
larly situated outside her protected class. Employees are
18 No. 05-1855
similarly situated if they are directly comparable in
all material respects. Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002) (citations omitted). The
inquiry is fact intensive, requiring consideration of the
circumstances as a whole. See Spath v. Hayes Wheels Int’l-
Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000). We have noted
that in reduction-in-force (“RIF”) cases such as this,
“plaintiffs were required to show at a minimum that
the [allegedly similarly situated] employees possessed
analogous attributes, experience, education, and qualifica-
tions relevant to the positions sought, and that the younger
employees obtained the desired positions around the same
time as the RIF.” Radue, 219 F.3d at 618 (collecting author-
ity).
Reviewing solely SBC’s Local Rule 56.1 submission,
Raymond does not meet her prima facie burden because she
does not prove the fourth element of discrimination.
Gottschalk appears to be the only person with whom
Raymond could conceivably be compared because he was
the worst-performing distribution manager in Illinois
(besides Raymond) who was not on a PIP. Nevertheless,
Raymond consistently ranked below Gottschalk on the stack
rankings, and Rozinsky opined that Gottschalk’s skills were
better suited to SBC’s future needs. Because there is no
evidence that Raymond was treated differently than a
similarly situated employee outside her protected class, she
has not made her prima facie case of discrimination.
III. CONCLUSION
For the foregoing reasons, we conclude that the district
court did not abuse its discretion by refusing to consider
Raymond’s late response to SBC’s motion for summary
judgment. The record shows that SBC was entitled to
judgment as a matter of law. The district court’s grant
of summary judgment in favor of SBC is AFFIRMED.
No. 05-1855 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-29-06