Ehnae Northington v. H & M International , 712 F.3d 1062 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1233
E HNAE N ORTHINGTON,
Plaintiff-Appellant,
v.
H & M INTERNATIONAL,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 6297—Blanche M. Manning, Judge.
A RGUED O CTOBER 26, 2012—D ECIDED M ARCH 21, 2013
Before E ASTERBROOK, Chief Judge, and C UDAHY and
T INDER, Circuit Judges.
C UDAHY, Circuit Judge. This is a Title VII case involving
two issues on appeal: whether in a grant of summary
judgment there was any relevant issue of material fact
and whether a discovery sanction was properly applied
and adhered to by the district court.
Since 2005, plaintiff-appellant Ehnae Northington
worked as a lot checker at one of H & M Interna-
tional Transportation’s railroad and trucking terminals,
Global II. Northington dated an H & M employee, Terrell
2 No. 12-1233
Maghett. Maghett was also involved in a seven-year
relationship with another H & M employee, Shequita
Sims. Sims became suspicious of the existence of a rela-
tionship between Northington and Maghett and
made verbal and physical threats toward Northington.
Northington brought certain concerns that she had
about Sims’ behavior to the terminal manager, Bart
Collins. However, Collins was then dating (and has
subsequently married) Sims’ mother, Tanga Hoskin-
Collins, the assistant terminal manager. Collins met
with Sims and Northington to attempt to settle their
dispute and warned them to keep their personal dis-
putes outside of the workplace.
The conflict between Northington and Sims culminated
in Sims’ physically assaulting Northington at a gas
station, off H & M property. Northington then filed a
criminal complaint against Sims. Sims pleaded guilty to
battery and the Cook County Circuit Court issued an
Order of Special Conditions of Bond or Release (SCOB),
which required Sims not to have any unlawful contact
with Northington at work. Northington provided the
SCOB to the Union, but did not provide a copy to H & M.
Additionally, Northington made internal complaints
to H & M officers, including H & M’s President and
Director of Operations. Northington complained that
Sims and Hoskin-Collins harassed her, and she com-
plained about the management style of Collins and
Hoskin-Collins. Northington did not complain that
the harassment was based on her race or gender.
During a safety inspection of Northington’s work
vehicle, the inspector suspected that Northington was
No. 12-1233 3
under the influence of drugs due to certain behavior:
slow response time, difficulty following conversation
and constricted pupils. The inspector spoke to Collins
and they agreed that Northington should be tested for
drugs based on their “reasonable suspicion,” which was
consistent with H & M’s policy. Northington and the
inspector went to Concentra, a drug testing facility, and
Northington provided a urine sample. A Concentra
nurse determined that the sample was unusable be-
cause it was “too cold.” Concentra procedures required
a second urine sample, within three hours, under the
direct observation of a Concentra nurse. Northington
was instructed to wait in the waiting room until she
could donate another sample, but she left Concentra
without providing a second sample, despite warnings
that such an exit would be considered a “Refusal to
Test” and be reported to H & M.
Collins requested that Mary Hayes, Vice President of
Human Resources, terminate Northington’s employ-
ment based on her refusal to test. Hayes conducted an
investigation, reviewed by two other H & M officers,
and these three officers concluded that Northington
had refused to take a reasonable suspicion drug test,
under procedures provided by Concentra, and that situ-
ation warranted termination. Effective May 2, 2008,
Northington was terminated by H & M due to her
refusal to test. The three H & M officers were unaware
of Northington’s criminal complaint against Sims.
Northington filed suit, claiming that her termination
was in retaliation for a series of complaints against
Sims and in violation of Title VII. The district court
4 No. 12-1233
granted H & M’s motion for summary judgment,
finding that Northington failed to establish her retali-
ation claim because she did not establish that she
had participated in protected activity under Title VII.
Northington appeals the district court’s decision
granting summary judgment.
In the lower court, Northington filed a motion for
sanction for failure to produce electronically stored
information on the basis that H & M had failed to
preserve the contents of relevant email accounts. Collins
and Hoskins-Collins were no longer employed by H & M
by September 2008 and their accounts were remotely
wiped. In January 2010, H & M moved its email system
to another vendor. During this transition, Sims’ account
was deemed inactive and deleted. H & M should
have preserved these accounts. The district court found
that H & M’s conduct was negligent but not willful and
(1) ordered H & M’s counsel to conduct another search
for documents; (2) assessed H & M reasonable costs
and fees; (3) deemed specific facts admitted at trial; and
(4) precluded H & M from making certain argu-
ments at trial.1 Northington argues on appeal that this
sanction precluded the award of summary judgment.
1
The Order mandated the follow instruction to a jury or judge
in a bench trial: “At trial, the jury be instructed that begin-
ning in July 2008, the defendant had a duty to preserve
all electronically stored information, including emails, con-
cerning plaintiff’s allegations but did not do so. In addition,
the defendant is barred from arguing that the absence of
discriminatory statements is evidence that no such state-
ments were made.”
No. 12-1233 5
The district court had jurisdiction in this matter
pursuant to 28 U.S.C. § 1331 (2006). As an appeal from
the district court’s final order, this court has jurisdiction
under 28 U.S.C. § 1291 (2006). We review a district
court’s grant of summary judgment de novo. O’Rourke v.
Palisades Acquisition XVI, LLC, 635 F.3d 938, 941 (7th Cir.
2011). Summary judgment is proper when the record
shows that there is no genuine dispute of any
material fact. Fed. R. Civ. P. 56(a). The district court
did not err by granting summary judgment in favor
of H & M. Further, the discovery sanction entered
against H & M does not preclude summary judgment.
I.
Northington filed internal complaints and a criminal
complaint regarding Sims’ treatment of her. Title VII
protects those actions only if the complaints arose
from harassment based on a protected factor. See 42
U.S.C. § 2000e-3(a) (2006). A plaintiff can establish re-
taliation using a direct or indirect method of proof.
To establish a Title VII violation under the direct
method, a plaintiff must show that she (1) engaged in
statutorily protected activity; (2) she suffered an adverse
employment action taken by the employer; and (3) there
was a causal connection between the two. Kodl v. Bd. of
Educ. Sch. Dist. 45, 490 F.3d 558, 562 (7th Cir. 2007). Under
the indirect method, a plaintiff must show that she
(1) engaged in statutorily protected activity; (2) met the
employer’s legitimate expectations; (3) suffered an
adverse employment action; and (4) was treated less
6 No. 12-1233
favorably than similarly situated employees who did
not engage in a statutorily protected activity. Amrhein v.
Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir. 2008);
Kodl, 490 F.3d at 562.
An employee engages in a protected activity by either:
(1) filing a charge, testifying, assisting or participating
in any manner in an investigation, proceeding or
hearing under Title VII or other employment statutes;
or (2) opposing an unlawful employment practice. Vague
and obscure “complaints” do not constitute protected
activity. See Andonissamy v. Hewlett-Packard Co., 547 F.3d
841, 850-51 (7th Cir. 2008). The record demonstrates that
Sim’s behavior toward Northington did not involve
Northington’s race or gender; rather, it was personal
and based on Northington’s involvement with Maghett.
There is nothing in the record which indicates that
Sims, who is of the same race and gender as Northing-
ton, was motivated by anything but personal conflict. Be-
cause the harassment itself was not a purported viola-
tion of Title VII, Northington’s complaints do not
qualify as alleging a protected activity. The district court
properly held that Northington’s retaliation claim fails
as a matter of law.
Thus, the district court’s analysis of H & M’s motion
for summary judgment correctly concluded that pro-
tected activity was not involved. None of Northington’s
alleged protected activities (filing internal complaints
and filing a criminal complaint) qualified as such.
These involve simply personal conflicts.
No. 12-1233 7
II.
The remaining matter of the discovery sanction
is easily dismissed. Northington contends that the dis-
covery sanction requires application of an adverse in-
ference and therefore precludes summary judgment
for H & M. She argues that the sanction allows an ad-
verse inference that the negligent destruction of elec-
tronically stored information indicates the lost informa-
tion contained evidence of Title VII violations. However,
the sanction only prevents H & M from inferring
an absence of discrimination from the lack of evidence.
The Magistrate specifically noted that H & M did not
destroy the evidence in bad faith, which is a required
element for allowing this kind of adverse inference. See
Fass v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th
Cir. 2008). Accordingly, the discovery sanction entered
against H & M does not preclude summary judgment.
Northington’s Title VII retaliation claim fails because
she was not engaged in a protected activity. The district
court did not err in granting summary judgment for
H & M.
A FFIRMED.
3-21-13