Joseph Reed v. Freedom Mortgage Corporation ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-3661
JOSEPH L. REED,
Plaintiff-Appellant,
v.
FREEDOM MORTGAGE CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-00954 — James B. Zagel, Judge.
ARGUED APRIL 12, 2017 — DECIDED AUGUST 25, 2017
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Joseph L. Reed sued his former
employer, Freedom Mortgage Company, under the Illinois
Human Rights Act, alleging race-based discrimination. After
concluding that Reed lacked evidence of racial bias, the district
court granted summary judgment in favor of Freedom Mort-
gage. Reed challenges the court’s decisions on evidentiary
2 No. 16-3661
matters as well as the court’s ultimate conclusion on summary
judgment. We affirm.
I.
Freedom Mortgage is a full service residential mortgage
lender based in New Jersey, with offices around the country.
Reed and co-worker Felicia Bates initially came to work for the
company as temporary employees from a staffing agency. On
November 1, 2012, Freedom Mortgage hired Reed and Bates as
full-time Broker Liaisons at its Downers Grove, Illinois office
at the recommendation of Regional Operations Manager
Cheryl Bidstrup. Reed and Bates reported directly to Bidstrup
who, in turn, reported to the Regional Branch Manager, Vickie
Sperry. Reed and Bates are African-American and both
Bidstrup and Sperry are white.
The regular hours of operation for the Downers Grove
office were 8 a.m. to 5 p.m., although some employees worked
other schedules with the permission of senior management.
Other employees worked a different schedule in order to
accommodate accounts in other time zones. Freedom Mortgage
had an employee handbook that contained the company’s
official Attendance Policy, which stated that seven or more
absences, late arrivals, or early departures in a twelve month
period could trigger disciplinary action, including termination
of employment. Reed understood that he was expected to start
work at 8 a.m. each day. He assumed that his co-workers were
all on the same schedule but he admitted that other employees
may have had permission to work alternate schedules of which
he was not aware.
No. 16-3661 3
On January 21, 2013, Bidstrup sent an email to the twenty-
nine employees who reported directly to her:
Vickie and I pride ourselves on being flexible with
our staff and in making the Chicago branch a pleas-
ant place to work. Unfortunately, however, our
good natured dispositions with regard to the office
atmosphere have been and are being taken advan-
tage of. Therefore, I find it necessary to reiterate the
following requirements.
• Our work hours are 8:00 am to 5:00 pm in the
Downers Grove physical location with an hour for
lunch and 2 - 15 minute breaks. Any deviation from
these hours or location must be prior approved by
Vickie or me. There will be no further “setting your
own hours” and assuming that you can stay until
6:00 pm to make up for coming in at 9:00 am.
• If you are going to be absent or late, you must
contact me prior to 8:00 am with the reason for your
absence or tardiness. If I am unavailable, your
voicemail message will be time stamped.
• The technical ability to work from home is to be
utilized for after-hours work only and only when
needed. Working from home during regular busi-
ness hours must be prior approved by Vickie or me
and will only be approved in an extreme emergency
and is at our discretion. There are only 3 Operations’
employees who currently work remotely on a
regular basis and have been already approved to do
4 No. 16-3661
so. No additional remote workers are being ap-
proved at this time.
R. 50-17, AT 2.
Four days after sending that email, Bidstrup issued a verbal
warning to Reed for violating the Attendance Policy. And four
days after that, Bidstrup issued to Reed a written warning for
absenteeism and/or tardiness when he arrived at 9:30 a.m.
without notifying his manager in advance. Between February
14, 2013 and April 1, 2013, Reed was absent from work on at
least eight days and could not recall whether he had prior
approval. Between March 6 and April 10 of that same year, he
clocked in late eleven times, sometimes just a few minutes after
8:00 a.m., but more than a half hour late on three occasions.
Bates also conceded that she had violated the Attendance
Policy numerous times.
Bidstrup eventually informed Sperry that Reed and Bates
were repeatedly violating the Attendance Policy. On April 9,
2013, Bidstrup sent out another email to all of the Downers
Grove employees reminding them that excessive absences or
tardiness could trigger disciplinary action including termina-
tion of employment. Because Reed continued to violate the
Attendance Policy after receiving oral and written warnings,
and because she received complaints from two employees
about having to cover Reed’s work in his absence, Bidstrup
asked the receptionist at the Downers Grove office to monitor
Reed’s attendance. At some point during his six month tenure,
Reed applied for the position of Junior Underwriter but was
not offered the job. Reed was also denied opportunities to
work from home.
No. 16-3661 5
In 2013, a decline in business prompted management at
Freedom Mortgage to implement a reduction in force at its
locations across the country. At the Downers Grove branch, the
position of Broker Liaison was gradually eliminated through
multiple rounds of terminations. Among the first three Broker
Liaisons selected for termination at the Downers Grove branch
were Reed and Bates. Bidstrup and Sperry explained to senior
management that they selected Reed and Bates because of their
history of attendance and disciplinary problems, and because
they had less seniority than others in the office. In April 2013,
after working for the company for approximately six months,
Reed and Bates were terminated in the reduction in force,
along with a white employee. The remaining Broker Liaisons
were also eventually terminated, and no one was hired to
replace them. The Downers Grove office closed entirely in
August 2014. Certain functions and positions, including those
of Underwriters and Junior Underwriters, subsequently
worked remotely for the Fishers, Indiana office.
After their terminations, Reed and Bates1 sued Freedom
Mortgage for race-based discrimination under the Illinois
Human Rights Act.2 See 775 ILCS 5/1-101 et seq. Reed alleged
that he was subjected to disparate treatment and ultimately
1
Bates’ claims were voluntarily dismissed in 2016 and she has taken no
part in the appeal.
2
Reed originally brought his suit in the Circuit Court of Cook County.
Freedom Mortgage removed the suit to federal court based on diversity
jurisdiction. Reed is a citizen of Illinois. Freedom Mortgage is incorporated
in New Jersey, has its principal place of business in New Jersey and is
therefore a citizen of New Jersey.
6 No. 16-3661
terminated from employment on the basis of race. On cross-
motions for summary judgment, the district court concluded
that Reed had no evidence that the defendant acted against
him on account of his race. In particular, the court found that
Reed had no evidence that he was treated less favorably than
similarly situated non-African-American employees, that he
failed to show that the denial of his request to work from home
and the denial of his promotion to the position of Junior
Underwriter were adverse employment actions, and that he
could not make out a claim for hostile work environment. The
court therefore granted judgment in favor of Freedom Mort-
gage and denied Reed’s motion for summary judgment. Reed
appeals.
II.
On appeal, Reed contends that the court should have
credited a negative inference created by the defendant’s failure
to produce certain formal attendance records during discovery.
He also objects to the court’s refusal to consider as evidence
three cell phone videos recorded by Bates. He argues that he
presented sufficient evidence to allow a reasonable jury to
conclude that Freedom Mortgage discriminated against him in
the company’s application and enforcement of its Attendance
Policy, and in his termination, all on the basis of race. Finally,
he asserts that the court erred in finding that he failed to make
out a claim for hostile work environment.
We review the district court’s grant of summary judgment
de novo, examining the record in the light most favorable to
Reed and construing all reasonable inferences from the
evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
No. 16-3661 7
242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070
(7th Cir. 2016). Summary judgment is appropriate when there
are no genuine disputes of material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Anderson, 477 U.S. at 256; Yahnke, 823 F.3d at 1070. Illinois
courts apply the federal Title VII framework to claims of
discrimination made under the Illinois Human Rights Act, and
the parties agree that it is appropriate to apply the Title VII
framework here. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d
378, 383 (7th Cir. 2016); Zaderaka v. Illinois Human Rights
Commission, 545 N.E.2d 684, 687 (Ill. 1989) (noting that, in
analyzing employment discrimination actions brought under
the Human Rights Act, the Commission and the Illinois
appellate court have adopted the analytical framework set
forth in United States Supreme Court decisions addressing
claims brought under Title VII, and that the Illinois Supreme
Court would follow the same approach).
Reed proceeded under the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and the
district court evaluated the case using that framework. Under
McDonnell Douglas, Reed has the initial burden of establishing
that (1) he is a member of a protected class; (2) he was meeting
his employer's legitimate performance expectations; (3) he was
subjected to an adverse employment action; and (4) similarly
situated employees outside of his protected class were treated
more favorably by the employer. 411 U.S. at 802-03; David v.
Board of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th
Cir. 2017). No matter the framework employed, the ultimate
legal question “is simply whether the evidence would permit
a reasonable factfinder to conclude that the plaintiff's race,
8 No. 16-3661
ethnicity, sex, religion, or other proscribed factor caused the
discharge or other adverse employment action.” Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). In apply-
ing this standard, evidence must be considered as a whole,
rather than asking whether any particular piece of evidence
proves the case by itself. Id.
Before we assess the adequacy of Reed’s evidence, we must
first address whether the district court erred in declining to
consider the cell phone videos that Reed produced and in
refusing to apply the negative inference that Reed wished the
court to draw from the defendant’s failure to produce formal
attendance records during discovery. We review the district
court's evidentiary rulings for abuse of discretion. Griffin v.
Bell, 694 F.3d 817, 826 (7th Cir. 2012). The district court declined
to consider the cell phone videos because they were not
properly authenticated and because Reed’s counsel did not
timely include the videos in his appendix of exhibits. On
appeal, Reed’s lawyer challenges only the determination that
the videos were not properly authenticated, failing to address
the court’s second reason for excluding them. “When a district
court gives two independent, dispositive reasons for ruling
against a party, and the party challenges only one of those
grounds, any challenge to the alternate basis is waived and we
may affirm.” Griffin, 694 F.3d at 826. A failure to address a
court’s second rationale is an adequate basis to affirm the
court’s decision, but in any case, the videos were properly
excluded. Reed’s counsel sought to admit them to prove that
only African-American employees were required to begin
working at 8 a.m., but neither Reed nor Bates (who recorded
the videos) could recall the dates or times that the videos were
No. 16-3661 9
recorded. Reed could not say whether the videos were re-
corded before or after Bidstrup’s email advising the workers
that they could no longer set their own hours. Moreover, Reed
conceded that the videos showed only a limited part of the
office. See Griffin, 694 F.3d at 826-27 (affirming exclusion of
photos and video that displayed only part of the relevant scene
and that bore no date or time stamp). There was no abuse of
discretion in declining to consider the videos.
Reed’s counsel also complains that the court should have
applied a negative inference to Freedom Mortgage’s failure to
produce certain documents during the discovery process.
Reed’s counsel requested “[a]ll documents that tend to
substantiate the allegations asserted in the Complaint.” R. 74-7,
at 11. He also requested “[a]ll documents relating to any
employees who made requests to work from home for the time
period of 2012 – present.” R. 74-7, at 10. Freedom Mortgage
objected to both requests on multiple grounds, including that
the requests were overly broad. In his first set of interrogato-
ries, Reed’s lawyer asked for identifying information regarding
each employee who was allowed to work from home and each
person who was disciplined as a result of violating the atten-
dance policy. R. 50-25, at 10. Freedom Mortgage again objected
to the requests on multiple grounds. Reed’s lawyer failed to
follow up with Freedom Mortgage on the objections and never
moved to compel production. Having failed to resolve this
simple discovery dispute, the plaintiff’s lawyer now seeks to
apply a rule from another circuit, where a court held that a
party’s wilful refusal to comply with a subpoena may give rise
to an inference that the withheld information was favorable to
its opponent. International Union, United Auto., Aerospace &
10 No. 16-3661
Agric. Implement Workers of America v. National Labor Relations
Bd., 459 F.2d 1329, 1336 (D.C. Cir. 1972) (“Simply stated, the
rule provides that when a party has relevant evidence within
his control which he fails to produce, that failure gives rise to
an inference that the evidence is unfavorable to him.”). In this
circuit, a negative inference may arise when a party intention-
ally destroys documents in bad faith. Faas v. Sears, Roebuck &
Co., 532 F.3d 633, 644 (7th Cir. 2008). A document is destroyed
in bad faith if it is destroyed for the purpose of hiding adverse
information. Id. Reed’s counsel presents no evidence of bad
faith or the hiding of information by Freedom Mortgage. The
record shows nothing more than the most ordinary kind of
discovery dispute regarding overly broad document requests
and interrogatories. Once Freedom Mortgage objected, the
onus was on Reed’s counsel to attempt to resolve the dispute
or compel production. Having failed to do either, there can be
no complaint about missing evidence. The negative inference
rule is simply inapplicable to the scenario presented here.
We turn to the McDonnell Douglas analysis. No one disputes
that Reed is a member of a protected class or that his termina-
tion was an adverse employment action. The parties dispute
whether he was performing to his employer’s satisfaction and
whether similarly situated employees outside his class were
treated more favorably. Reed conceded that he had received
oral and written warnings for violating the Attendance Policy,
and that he continued to be absent and late on multiple
occasions after his employer reiterated both the policy and the
consequences for violating it. The question is whether he
produced any evidence that similarly situated non-African-
American employees were treated more favorably. “Similarly
No. 16-3661 11
situated” means directly comparable in all material respects.
Perez v. Thorntons, Inc., 731 F.3d 699, 704 (7th Cir. 2013). The
objective is to eliminate other possible explanatory variables
such as differing roles, performance histories, or decision-
making personnel, in order to isolate the critical independent
variable of discriminatory animus. Perez, 731 F.3d at 704;
Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). “The
proposed comparator need not be identical in every conceiv-
able way, however, and courts must conduct a ‘common-sense
examination.’” Perez, 731 F.3d at 704 (quoting Coleman, 667 F.3d
at 846). Whether a comparator is similarly situated is typically
a question for the fact-finder, unless, of course, the plaintiff has
no evidence from which a reasonable fact-finder could con-
clude that the plaintiff met his burden on this issue. Coleman,
667 F.3d at 846-47.
Reed points to four white employees as comparators who,
he asserts, were treated more favorably than he was: Sandy
Bakir, Kathleen French, Bridget Glass and Nicole Landis.3
Bakir, French and Glass were Team Leads as well as Broker
Liaisons. They had significantly greater seniority than Reed.
Landis was a Broker Liaison who was given a verbal warning
for missing work on a single occasion.4 If those were the only
3
On appeal, Reed argues that other white employees also had similar
disciplinary problems and poor attendance records, but his claims
regarding those other employees suffer the same infirmities as his evidence
regarding these four employees, and so we confine our discussion to these
four.
4
Reed asserts that Landis was once absent for five continuous days. The
(continued...)
12 No. 16-3661
differences, we might conclude that the question of similarity
should go to the jury. But Reed’s counsel presented no evi-
dence that any of these employees had a similar history of
violations of the Attendance Policy or a similar disciplinary
record. Having failed to follow through on his discovery
requests,5 Reed’s lawyer seeks to rely on his client’s personal
observations of other workers’ arrival times and absences from
work. Certainly a witness with personal knowledge of a matter
may testify to that matter. Fed. R. Evid. 602; United States v.
Mendiola, 707 F.3d 735, 741 (7th Cir. 2013) (“the knowledge
required by Rule 602 is not absolute or unlimited knowledge
but simply that awareness of objects or events that begins with
sensory perception of them, a comprehension of them, and an
ability to testify at trial about them.”).
But Reed testified only that he had seen these other
employees arrive after 8 a.m. an unspecified number of times
on dates that he could not recall. The record does not reveal
whether the late appearances came before or after the email
4
(...continued)
company’s Attendance Policy treated a continuous multi-day absence as
one “occasion.”
5
Reed’s counsel attempted to characterize his discovery requests as
including personnel and attendance records for comparators, but he
requested personnel records only for the plaintiffs themselves. Although
attendance records for comparators could arguably be included in the
request for “[a]ll documents that tend to substantiate the allegations in the
Complaint,” that request was so broad and vague that it gave no reasonable
framework for a response. Counsel inexplicably failed to request the most
relevant records necessary to make out the claim: the personnel and
attendance records of non-African-American comparators.
No. 16-3661 13
demanding strict adherence to the office schedule. Nor is there
evidence regarding whether the other employees had asked for
or received permission for alternate schedules as provided in
that email, or whether management was aware that other
employees were not complying with the Attendance Policy.
Except for one instance, there was no evidence of whether any
of the other employees had received written or oral discipline
for unexcused lateness or absence. In that one instance, Landis
had received an oral warning. But the record does not reveal
Landis’s attendance record after that warning or any evidence
of whether Landis’ total number of absences approached
Reed’s record. Nor is there evidence regarding whether any
employees were allowed to work from home following the
January 21 email ending the practice.
Reed’s lawyer simply failed to gather the evidence that
would have made his client’s personal observations relevant to
the fact he was trying to prove. The problem is not, as Freedom
Mortgage complains, that Reed failed to corroborate his
personal observations. There is no rule requiring corroboration
for personal observations. The problem is that Reed’s lawyer
failed to gather evidence regarding the timing or context of the
personal observations that would have made them relevant to
the point he was trying to prove, namely, that these employees
had similar attendance issues and were treated more favorably.
Reed’s lawyer did not pursue through discovery any evidence
regarding the scheduled work hours of other employees,
whether and how often those workers were tardy, whether
management was aware of any late arrivals, whether any late
workers had permission to be tardy, and whether any other
unexcused tardiness resulted in discipline.
14 No. 16-3661
Other than a single occurrence with Landis, the record
contains no evidence regarding the attendance of similarly
situated white employees. On this record, only Reed had so
many documented violations of the Attendance Policy, and
only Reed continued to violate the Policy after being warned
of the consequences of his failure to comply. On this record,
Bidstrup was aware only of Reed’s repeated violations of the
Attendance Policy. Reed’s lawyer simply failed to gather any
evidence demonstrating that there were any non-African-
American employees with Attendance Policy violation records
even remotely similar to Reed’s. Ortiz, 834 F.3d at 765. He
therefore cannot demonstrate that Freedom Mortgage treated
similarly situated employees more favorably, and his claim
fails as a matter of law.
Reed’s final argument, that Freedom Mortgage perpetuated
a hostile work environment, simply rehashes his claim for race-
based termination. The claim is predicated on the assertion that
the company employed different attendance policies for
African-American and white workers, that African-American
workers were disproportionately monitored and disciplined
under those policies, and that his termination was the result of
the discriminatory application of those policies, all creating a
hostile work environment. This claim fails for the same reason
as the wrongful termination claim, namely that Reed’s lawyer
failed to gather evidence demonstrating that the company
treated similarly situated non-African-American employees
more favorably than African-American employees. We have
considered the remaining arguments and find them without
merit.
AFFIRMED.