Kindler, William S. v. Potter, John E. , 197 F. App'x 515 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 27, 2006*
Decided September 28, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1600
WILLIAM KINDLER, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
1:04-CV-934-DFH-TAB
JOHN POTTER,
Postmaster General, United States David F. Hamilton,
Postal Service, Judge.
Defendant-Appellee.
ORDER
William Kindler filed a complaint under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., alleging that he was fired from his job with the
United States Postal Service because he is Hispanic. After the close of discovery,
the district court granted summary judgment for the Postal Service because Kindler
could not establish a prima facie case of discrimination. We affirm.
*
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
record. See Fed. R. App. P. 34(a)(2).
No. 06-1600 Page 2
Kindler filed his complaint in May 2004. In it, he stated that he was fired
from his job as a “part-time flexible distribution/window clerk” for violating the
Postal Service’s policy against sexual harassment, but alleged that the sexual
harassment charges had never been proven, and that he was fired because he is
Hispanic. After discovery commenced, details quickly emerged as to the
circumstances surrounding his termination. Namely, Kindler was fired after an
extensive internal investigation confirmed a customer complaint that he repeatedly
had sexually harassed a 16-year-old girl while working at the retail window of his
post office branch.
During discovery Kindler sought evidence showing that he was treated
differently from Maureen Fager, a fellow post-office employee with whom he
claimed to be similarly situated. Kindler asserted that Fager was never disciplined
for repeatedly arriving late to work or failing to do her job. After the Postal Service
moved for summary judgment in May 2005, Kindler requested and received two
successive continuances to conduct additional discovery. In August 2005 he
requested a third continuance, claiming that he had not yet received requested
“documents regarding specific employees” that “would allow counsel to determine
whether similarly situated employees were engaging in similar or worse conduct
than Plaintiff.” (We note, however, that Kindler did not submit an affidavit in
support of his motion for a continuance pursuant to Fed. R. Civ. P. 56(f).)
Specifically, Kindler sought Fager’s “disciplinary records,” an “analysis” of the
frequency of her absences from work, and her “clock rings” (documents stating each
date she worked, the time she began working, the time taken for breaks and lunch,
and the time she ended her work day) from January 1, 2003, through June 30, 2003.
After a hearing, the magistrate judge denied Kindler’s motion for a third
continuance. The requested documents, the magistrate judge stated, “were not
reasonably calculated to lead to the discovery of admissible evidence.” Namely,
Fager was not similarly situated with Kindler because she held a different position
in the Postal Service—“senior, full-time lead/SLS service associate”—and
accordingly was “governed by different standards for removal” than Kindler. The
documents were thus “not relevant for the purpose of discovery.”
The district judge granted summary judgment to the Postal Service. The
judge determined that Kindler failed to establish a prima facie case of racial
discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
because, among other things, he did not show that “a similarly situated
non-Hispanic employee was treated more favorably than himself.” In reaching this
determination, the judge adopted the magistrate judge’s finding that Fager was not
similarly situated with Kindler because they held different positions; the judge also
pointed out that the record did not reflect that Fager was charged with or
investigated for violating the Postal Service’s sexual harassment policy.
No. 06-1600 Page 3
Kindler appeals, arguing in essence that both the magistrate judge and
district judge erred by determining that he and Fager were not similarly situated.
He insists that they were similarly situated because “there was no difference
between full-time and part-time employees’ discipline procedure in the Collective
Bargaining Agreement between American Postal Workers Union . . . and U.S.
Postal Service.”
We look to see if the district court abused its discretion when it denied
Kindler’s request for a third continuance to conduct further discovery before
responding to the Postal Service’s motion for summary judgment. See Grayson v.
O'Neill, 308 F.3d 808, 815-16 (7th Cir. 2002) (citing Woods v. City of Chicago, 234
F.3d 979, 990 (7th Cir. 2000)). We review the district court’s grant of summary
judgment de novo. See Scaife v. Cook County, 446 F.3d 735, 738-39 (7th Cir. 2005).
To establish a prima facie case of racial discrimination, Kindler must show,
among other things, that he was treated less favorably than similarly situated
individuals who are not members of his protected class—that is, individuals who
are not Hispanic. See Balance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.
2005). To be “similarly situated” to Kindler, an individual must be comparable to
him “in all material respects,” Crawford v. Ind. Harbor Belt R.R. Co., No. 05-2825,
2006 U.S. App. LEXIS 21484, at *6 (7th Cir. Aug. 23, 2006), meaning that there are
no “‘differentiating or mitigating circumstances as would distinguish . . . the
employer’s treatment of them,’” Ineichen v. Ameritech, 410 F.3d 956, 960-61 (7th
Cir. 2005) (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000)). We consider a number of factors when determining whether employees are
similarly situated, including whether the employees held the same job description
and were subject to the same standards. See Bio v. Fed. Express Corp., 424 F.3d
593, 596 (7th Cir. 2005). In cases where the plaintiff alleges that he was disciplined
but other employees were not, we also consider whether the parties all engaged in
the same conduct for which the plaintiff was disciplined. See Ineichen, 410 F.3d at
961.
Kindler’s argument that he and Fager were similarly situated fails for
several reasons. First, Kindler’s assertion that there are no differences between the
disciplinary procedures for full-time and part-time employees alone fails to prove
that he and Fager were similar “in all material respects,” see Ilhardt v. Sara Lee
Corp., 118 F.3d 1151, 1155 (7th Cir. 1997) (“[F]ull-time employees are simply not
similarly situated to part-time employees.”); see also Miller v. Auto. Club of N.M.,
Inc., 420 F.3d 1098, 1115 (10th Cir. 2005); Lowery v. Hazelwood Sch. Dist., 244 F.3d
654, 659-60 (8th Cir. 2001), especially since Kindler conceded in his deposition
testimony that “part-time flexible distribution window clerks” were generally
treated differently from full-time clerks; that Fager and he had different positions;
No. 06-1600 Page 4
and that Fager was held to a different standard because she had a different
position, see Crawford, 2006 U.S. App. LEXIS 21484, at *5-6; Bio, 424 F.3d at 596.
Indeed, Kindler also admitted in his deposition testimony that full-time employees
“hold a different status within the union and under the union contract” than part-
time employees. Moreover, Kindler provides no evidence that Fager was ever
charged with or investigated for violating the Postal Service’s sexual harassment
policy. See Ineichen, 410 F.3d at 961 (“In this case, [plaintiff] is not similarly
situated to either [employee], because the [employees] engaged in different conduct
[that warranted discipline].”). We thus cannot say that the magistrate judge
abused his discretion in denying Kindler’s motion for a third continuance to carry
out additional discovery, nor can we say that the district judge erred in granting the
Postal Service’s motion for summary judgment.
AFFIRMED.