Bradford, Charles v. Maxwell Tree Expert ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 5, 2005*
Decided April 6, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04–3490
CHARLES E. BRADFORD, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Indiana, Fort Wayne Division
v.
No. 1:03–CV–177
MAXWELL TREE EXPERT CO.,
INC., Roger B. Cosbey,
Defendant-Appellee. Magistrate Judge.
ORDER
Charles Bradford filed this lawsuit alleging that Maxwell Tree Expert
Company failed to rehire him because of his race, in violation of 42 U.S.C. § 1981
and Title VII of the Civil Rights Act of 1964. Bradford, an African-American
landscape foreman, and Jeff Feasel, a fellow-landscaper who is white, were fired
after company owner Gregory Maxwell smelled marijuana in the van that the two
of them had used for the day. Several days later, Feasel returned to the office to
gather his personal effects, and while he was there confronted Maxwell’s wife and
the company’s business manager, Gina Maxwell, and told her that he was
wrongfully terminated because he had not been smoking marijuana. Gina referred
him to Gregory, who rehired Feasel after he passed a drug test. Bradford
attempted unsuccessfully to contact Gina Maxwell about his termination; he visited
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04–3490 Page 2
the office and then called several times (the parties dispute the precise number) but
did not reach her. Whenever he called, Bradford spoke to the receptionist but did
not tell her why he wished to speak to Gina; the one time that the receptionist
inquired of his purpose, Bradford replied that he wanted to discuss matters
pertaining to his insurance plan and pension. Since he did not reach Gina, he
never protested his termination nor offered to take a drug test, as Feasel had.
The district court granted summary judgment to the company. It concluded
that Bradford failed to provide direct evidence of a discriminatory failure to rehire
or to establish a prima facie case of discrimination through the indirect method.
Further, the court noted, Bradford did not demonstrate that Maxwell’s stated
reason for refusing to rehire him—that, unlike Feasel, he did not request
reinstatement or pass a drug test—was pretextual.
On appeal, Bradford, who is proceeding pro se, first argues that the
performance of his counsel in the district court was inadequate. But this is not a
reason to disturb the district court’s judgment, because there is no Sixth
Amendment right to effective assistance of counsel in a civil case. See Stanciel v.
Gramley, 267 F.3d 575, 581 (7th Cir. 2001); United States v. 7108 W. Grand Ave.,
Chicago, Ill., 15 F.3d 632, 635 (7th Cir. 1994). If Bradford’s counsel was deficient,
Bradford may seek recourse against him in a malpractice action, but he cannot do
so in this appeal.
Next Bradford broadly challenges the district court’s judgment by asserting
that there was a “lack of evidence to justify a summary judgment.” We have
reviewed the record, however, and are satisfied that the district court reached the
correct result. Bradford failed to provide direct evidence that he was not rehired
because of his race; his general allegations of past racist remarks by Gregory
Maxwell are vague and unsupported by evidence in the record, and they bear no
apparent connection to the company’s decision not to rehire him. See Adams v.
Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003). Bradford also could not
prove discrimination under the McDonnell Douglas burden-shifting formula,
because the uncontested evidence shows that he and Feasel, the white employee
who received better treatment, were not similarly situated. See Radue v. Kimberly-
Clark Corp., 219 F.3d 612, 617–18 (7th Cir. 2000) (proving that employees are
similarly situated entails showing that they “engaged in similar conduct without
such differentiating or mitigating circumstances as would distinguish their conduct
or the employer’s treatment of them”). Unlike Feasel, Bradford did not confront the
Maxwells, contest his termination, or pass a drug test.
Since Bradford cannot prove discrimination through the direct or indirect
method, his claim must fail. Accordingly, the judgment of the district court is
AFFIRMED.