In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3685
G REGORY M C INNIS,
Plaintiff-Appellant,
v.
A RNE D UNCAN, United States
Department of Education, Secretary,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:11-cv-02879—Samuel Der-Yeghiayan, Judge.
A RGUED A UGUST 8, 2012—D ECIDED O CTOBER 12, 2012
Before B AUER, W OOD , and S YKES, Circuit Judges.
P ER C URIAM. Gregory McInnis, a law-school graduate
who has never been licensed to practice, filed a pro se
complaint accusing his employer, the Department of
Education, of violating federal law by passing him over
for promotion and giving him a performance appraisal
that he says is both inaccurate and incomplete. But after
he had failed for a second time to attend a scheduled
2 No. 11-3685
hearing, the district court dismissed the suit for failure
to prosecute. We conclude that dismissal was not an
abuse of discretion; the district court reasonably could
have found McInnis’ conduct serious enough to war-
rant dismissal, and the court had warned him after the
first no-show that a repeat could lead to dismissal.
I.
McInnis has worked for the Department of Education
for more than 20 years, never as a supervisor. In June 2009,
he applied for promotion to a supervisory job. He lost
out to a female candidate, and a few weeks later, manage-
ment gave him a performance appraisal rating his work
as satisfactory but including written comments that
he viewed as inaccurate and incomplete. After submit-
ting two administrative charges alleging race and
gender discrimination as well as retaliation, McInnis
filed suit against the agency claiming that management
had violated the Whistleblower Protection Act,
5 U.S.C.
§§ 1211 to 1222, and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e to 2000e-17.
The agency moved to dismiss McInnis’ whistleblower
claim for failure to exhaust, arguing that he never sub-
mitted that allegation to the United States Office of
Special Counsel (“OSC”) as required before filing suit, see
5 U.S.C. §§ 1214(a)(3), 7703. The district court scheduled
a hearing on that motion for August 23, 2011, and con-
tinued the hearing to August 30 at McInnis’ request.
McInnis then wrote “amended” on his original com-
plaint and refiled it with a copy of correspondence from
No. 11-3685 3
the Office of Special Counsel informing him that OSC
had closed his file when he failed to respond to its pro-
posed factual and legal determinations.
McInnis failed to appear at the August 30 hearing.
There is no transcript of this proceeding, but afterward
the district court issued a minute order. That entry dis-
closes that the court denied as moot the agency’s motion
to dismiss McInnis’ initial complaint in light of the
“amended” version. The court also scheduled a status
hearing for November 3. The court added that McInnis
“is warned that failure to appear on a Court’s noticed
hearing may result in the dismissal of the action, for
want of prosecution, pursuant to [N.D. Ill.] Local
Rule 41.1.” McInnis failed to appear on November 3. By
then the Department of Education had moved again
to dismiss the complaint except for the Title VII claim,
and in open court the district judge asked the agency’s
lawyer whether she had communicated with McInnis.
Counsel replied:
Yes. We have had a lot of contact. In fact, he called
me last week asking to have this date continued
and I—because he wanted to get an attorney and
I suggested that would be fine, how about if we con-
tinue my answer date as well and he would have
none of that.
So he said he would see me here today so I expected
to see him. If you’d like me to have the case recalled.
After that the court passed McInnis’ case and heard
other matters to give him a chance to show up, but
the court did not direct anyone (at least on the record) to
4 No. 11-3685
try calling him. Nor did the agency’s lawyer represent
that she had tried to call McInnis while waiting on the
judge. When the case was recalled, counsel said this
about her most recent conversation (by telephone) with
McInnis:
I don’t think he was pleased to hear that I was going
to do another motion to dismiss so he—I just reiter-
ated that he wanted 30 days to get a lawyer so
that’s the only thing he’s asked for.
....
And we had agreed that I would then get an exten-
sion of the answer date. When we had called your
clerk, he then changed his tune and we—he said
he would see me today. So all I can tell you is that
he wants to look for a lawyer.
The court then dismissed the lawsuit with prejudice for
failure to prosecute, explaining that McInnis had been
warned of this consequence after missing his most
recent court date. Twenty-nine days later, the lawyer
who presently represents McInnis filed a notice of
appeal from the dismissal, but in the interim counsel
did not ask the district judge to reconsider that decision.
II.
On appeal McInnis argues that the district court
abused its discretion by dismissing his pro se lawsuit.
In his brief, McInnis represents that on October 28,
2011—six days before the November 3 hearing—he and
No. 11-3685 5
the agency’s lawyer “jointly contacted” the judge’s law
clerk “and left a message requesting a continuance.” That
representation, which the agency’s lawyer ignores in
her appellate brief, would appear inconsistent with the
inference she left at the hearing about the content of
the parties’ phone message to the clerk: Counsel told
the district court that, “[w]hen we had called your clerk,
he then changed his tune and . . . said he would see
me today,” which implies that the message left for the
clerk was not a request for a continuance. In fact, the
agency’s lawyer tells this court that “neither party
asked the court to move the November 3, 2011, status
hearing.” McInnis does not say that he ever received
confirmation from the court that the hearing date had
been changed, but the parties do appear to dispute
whether a continuance was requested, at least infor-
mally. And that dispute raises a question about how
the district judge viewed the situation when he exer-
cised his discretion to dismiss the case. McInnis contends
that dismissal for failure to prosecute is appropriate
only if “there is a clear record of delay or contumacious
conduct” or if “other less drastic sanctions have proven
unavailing,” see Kasalo v. Harris & Harris, Ltd.,
656 F.3d
557, 561 (7th Cir. 2011) (quoting Gabriel v. Hamlin,
514
F.3d 734, 736 (7th Cir. 2008)), and he argues that the
district court failed to consider less severe sanctions
and was not justified in finding the contumacious
or dilatory conduct that would support dismissal as a
sanction of first resort. McInnis also suggests that
the district court gave insufficient consideration to his
pro se status. Although McInnis’ conduct was not as
egregious as that of some litigants whose suits are
6 No. 11-3685
properly dismissed for failure to prosecute, his neglect
in pursuing his case was sufficiently serious to warrant
dismissal. While we have held that a single missed filing
deadline or status hearing does not support dismissal
for failure to prosecute, see Kruger v. Apfel,
214 F.3d 784,
787 (7th Cir. 2000); Del Carmen v. Emerson Elec. Co.,
908
F.2d 158, 163 (7th Cir. 1990); Schilling v. Walworth Cnty.
Park & Planning Comm’n,
805 F.2d 272, 276 (7th Cir. 1986),
we have upheld dismissal for plaintiffs who fail to
attend multiple hearings and have been warned of the
possibility of dismissal, see Fischer v. Cingular Wireless,
LLC,
446 F.3d 663, 666 (7th Cir. 2006); Ball v. City of Chicago,
2 F.3d 752, 753-54 (7th Cir. 1993); see also Alston v.
Deutsch Borse, AG, 80 F. App’x 517, 520 (7th Cir. 2003);
Malone v. Foster Wheeler Constructors, Inc., 21 F. App’x
470, 472 (7th Cir. 2001); Dax v. Am. Bd. of Psychiatry and
Neurology, Inc., 10 F. App’x 364, 366-67 (7th Cir. 2001);
Swarm v. Siemens Bus. Commc’ns Sys., Inc., 9 F. App’x 512,
515 (7th Cir. 2001); Walker v. Will Cnty. Sheriff’s Dep’t,
No. 95-2604,
1997 WL 697168, at *4 (7th Cir. Nov. 3,
1997) (nonprecedential decision). We have also affirmed
dismissals where a single nonappearance was com-
bined with other instances of violating court orders.
See Halas v. Consumer Servs., Inc.,
16 F.3d 161, 165 (7th
Cir. 1994); Lockhart v. Sullivan,
925 F.2d 214, 219 (7th Cir.
1991); see also Schmidt v. Campanella Sand & Gravel
Co., Inc., 49 F. App’x 647, 650 (7th Cir. 2002).
McInnis attempts to distinguish his conduct by
asserting that his second absence was “predicated on a
misunderstanding as to whether the hearing had been
continued.” As a consequence, he insists, he lacked the
No. 11-3685 7
willfulness necessary to support a finding of dilatory or
contumacious intent. The problem with this argument
is twofold. First, McMinnis has never explained his
first absence or asserted that he had good cause for
missing that hearing. Second, in trying to minimize his
absence on November 3, McInnis relies on facts that,
even if true, were apparently unknown to the district
court. He asserts that he and opposing counsel jointly
left a message with the district judge’s clerk requesting
a continuance and that he mistakenly believed that
their request had been granted. It is troubling that
counsel for the Department of Education has not denied
McInnis’ account of their phone message, despite al-
lowing—or at least appearing to allow—the district
court to believe that no continuance had been requested.
But that scenario is not confirmed by the present
record, and McInnis’ say-so is not enough. As far as the
record shows, the district court knew only that McInnis
had been admonished to appear on November 3, that
he was trying to retain counsel, that the parties had
been unable to reach an agreement to request a continu-
ance, and that McInnis had nevertheless failed to show
up. McInnis could have explained his version of events
in a motion to reconsider or to vacate the dismissal,
see F ED. R. C IV. P. 59(e), 60, but having failed to do so
there is no basis to conclude that the district court erred
in finding his conduct contumacious or dilatory. See
United States v. Hoover,
246 F.3d 1054, 1064 (7th Cir.
2001) (Rovner, J., concurring) (explaining that parties to
an appeal may not “stray beyond the bounds of the
record for reasons so obvious and familiar that
8 No. 11-3685
they scarcely require mention”); McClendon v. Indiana
Sugars, Inc.,
108 F.3d 789, 795 (7th Cir. 1997) (“Evidence
that was not proffered to the district court in
accordance with its local rules is not part of the appel-
late record; it has no place in an appellate brief.”);
see also Johnson v. Kamminga,
34 F.3d 466, 468 (7th Cir.
1994) (noting that plaintiff’s failure to move to alter
judgment and submit evidence corroborating claim of
excusable neglect undercut argument that dismissal
was abuse of discretion).
McInnis also argues that the district court erred by
failing to consider lesser sanctions. In general, we have
recommended that district courts consider less severe
sanctions before dismissing for failure to prosecute, see
Kasalo,
656 F.3d at 562; Aura Lamp & Lighting, Inc. v. Int’l
Trading Corp.,
325 F.3d 903, 908 (7th Cir. 2003); Oliver
v. Gramley,
200 F.3d 465, 466 (7th Cir. 1999), but judges
do not abuse their discretion by declining to employ
“progressive discipline,” Johnson,
34 F.3d at 468 (noting
that such a rule would effectively grant “each litigant
one opportunity to disregard the court’s schedule
without fear of penalty”); Ball,
2 F.3d at 756. And
although we have said that in the case of ordinary mis-
conduct a district judge must warn a pro se plaintiff of
the possibility of dismissal, Fischer,
446 F.3d at 665;
In re Bluestein & Co.,
68 F.3d 1022, 1025 (7th Cir. 1995), the
judge need not do so through a “warning shot” in the
form of less severe sanctions, In re Bluestein,
68 F.3d at
1026; Johnson,
34 F.3d at 468; Halas,
16 F.3d at 165. More-
over, we have explained that sanctioning a negligent
attorney while permitting a suit to go forward allows
No. 11-3685 9
courts to avoid punishing innocent plaintiffs for their
lawyers’ transgressions. See Aura Lamp & Lighting,
325
F.3d at 908; Ball,
2 F.3d at 757. This concern does not
apply when, as here, the negligence is traceable to the
plaintiff himself.
Nor does McInnis’ pro se status require greater leni-
ency than he received. (And McInnis is pro se; he gradu-
ated from law school but has never practiced or even
been licensed. The Department of Education cites no
authority for its view that anyone with a law degree
is a “lawyer.” A “lawyer” is “[o]ne who is licensed to
practice law.” Black’s Law Dictionary 895 (7th ed. 1990).
That description does not fit McInnis and never has.) As
we often have reminded litigants, even those who are
pro se must follow court rules and directives. Anderson
v. Hardman,
241 F.3d 544, 545 (7th Cir. 2001); Downs
v. Westphal,
78 F.3d 1252, 1257 (7th Cir. 1996); Jones v.
Phipps,
39 F.3d 158, 163 (7th Cir. 1994). And, although
McInnis’ law degree does not make him a lawyer, his
training should have given him greater insight than the
typical pro se litigant about the need to follow court
directives.
A FFIRMED.
10-12-12
