Marilyn Walton v. United States Steel

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 5, 2012*
Decided December 14, 2012
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-1075
MARILYN WALTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:07-CV-331
UNITED STATES STEEL
CORPORATION, Andrew P. Rodovich,
Defendant-Appellee. Magistrate Judge.
ORDER
Marilyn Walton sued her former employer, United States Steel Corporation,
claiming racial discrimination and retaliatory discharge. Only the latter claim survived
summary judgment, and after a two-day trial the district court granted the defendant’s
motion for judgment as a matter of law. Walton appeals, but because she has not provided
*
After examining 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)(C).
No. 12-1075 Page 2
a transcript of the district court proceedings, and because we can perceive no error in the
record as it stands, we affirm the judgment of the district court.
We have pieced together Walton’s factual allegations as best we can from the
available record, including the pleadings and her deposition testimony. Walton was hired
into an entry-level position at U.S. Steel in August 2004. She was assigned to the coke plant
at the company’s mill in Gary, Indiana, and agreed to remain in that position for six years
before seeking a transfer to another part of the plant. During her tenure at U.S. Steel,
Walton complained orally to coworkers and managers about perceived disparities between
conditions in the mill’s east side, where raw materials are processed and the coke plant is
located, and the west side, which handles finishing. She asserted that most of the women
working in the east side are black while those in the west side are white. She also pointed
out that the west side of the mill is cleaner, has a cafeteria for employees, and has positions
offering higher incentive pay. Walton complained, too, that workers were sometimes
locked inside the coke plant until the end of their shifts and were not paid for the time they
spend changing clothes and showering after their shifts.
Walton also was involved in several disagreements with her coworkers. At her
deposition she testified that her first manager one time almost backed over her with a
machine, another time inconvenienced her by blocking her path with a machine, and a
third time sent her home early with the explanation that she was tired of looking at her.
Walton complained and was assigned to a different crew supervised by Raul Arana, but
she had problems with him as well. Arana, she said, once left her standing on a train track
in the dark without a safety device that would prevent another train from coming down the
track. Other times he allowed coworkers to insult her and excluded her from after-work
social gatherings. Arana also denied her the opportunity to train for a new position.
Stress from these workplace aggravations allegedly caused Walton to call in sick,
and in June 2006 her doctor said she was unable to work her assigned job and
recommended that she transfer to another area of the mill. Her union began negotiating a
transfer with management but abandoned the effort when Walton was medically cleared to
resume working at the coke plant in July 2006. After returning Walton was assigned to a
different area within the plant. But she soon filed a union grievance complaining that the
company arbitrarily had denied her request to be relocated away from the coke plant.
Walton again took medical leave in September 2006. While away from her job she
sent U.S. Steel a letter asserting that she had experienced racial discrimination at the coke
plant, and in November she filed a charge of discrimination with the Equal Employment
Opportunity Commission. In support Walton alleged that a coworker had called her a
“crazy bitch,” and that another coworker had intimidated her by jokingly brandishing a
No. 12-1075 Page 3
knife at a third employee. She complained, too, that she had been denied training in favor
of another woman with less seniority (who like Walton is black), that white women at U.S.
Steel held better-paying jobs than black women, and that during a meeting the previous
March she had been forced to defend herself against unspecified “bogus allegations.”
(Walton apparently was referring to an incident in which a coworker had accused her of
sexual harassment for suggesting that the coworker have sex with their supervisor.)
Although acknowledging that no one had made racist comments to her, Walton insisted
that management’s purported inattentiveness to her problems at work was racially
motivated. The EEOC did not substantiate Walton’s claim of discrimination and issued a
right-to-sue letter in June 2007.
Meanwhile, with the EEOC’s investigation still pending, Walton returned to work in
December 2006. But after just a few weeks she was suspended for using profanity and
racial slurs during an altercation with another black employee, Marcel Simpson.
Management investigated and interviewed Simpson and five witnesses. Four of those
witnesses stated that Walton had used racist and abusive language and recalled her
branding Simpson a “coward,” “punk,” “nigger,“ “motherfucking nigger,“ and “ignorant
nigger.” Walton conceded that she had said “nigger“ but explained that she simply was
discussing the meaning of the word and had not used it as an epithet. U.S. Steel rejected
that explanation and fired Walton in January 2007. The company explained that she had
violated its prohibition against discriminatory harassment by using a racial slur toward a
coworker. Walton filed a union grievance challenging her discharge, but eventually an
arbitration board concluded that her testimony was not credible and that she indeed had
violated the antiharassment policy by using racially charged language that was intended to
belittle or show hostility to her coworker.
Walton then filed a second charge with the EEOC, this time claiming that she had
been fired in retaliation for submitting the earlier charge of discrimination. After
investigating, the EEOC concluded that the reason given for discharging Walton had not
been pretextual. Walton then filed this suit claiming that she had been assigned to a job
with lower earning potential and harassed on account of her race in violation of 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-2(a)(1). She also
claimed retaliatory discharge in violation of Title VII, see 42 U.S.C. § 2000e-3(a), and the Fair
Labor Standards Act, see 29 U.S.C. § 215(a)(3). The FLSA claim was premised on Walton’s
EEOC charge alleging racial discrimination and on her oral complaints to management
about not being paid for time spent showering or changing into protective gear.
The district court (through a magistrate judge sitting by consent) granted summary
judgment for U.S. Steel on all but the Title VII claim for retaliatory discharge. Walton’s
No. 12-1075 Page 4
claims of racial discrimination failed, the court concluded, because she lacked evidence
suggesting racial hostility as the impetus for the alleged harassment. Nor did she introduce
evidence establishing that her assignment to the coke plant was an adverse employment
action or that she was treated less favorably than similarly situated employees of other
races. Walton’s claim of retaliation under the FLSA also failed, according to the district
court, because her EEOC charge did not include complaints about wages or hours, and her
oral complaints had not been “filed” and thus could not support a retaliation claim under
the statute.
As for the claim that survived, Walton had opposed summary judgment by
asserting that other employees frequently said “nigger“ without being fired. The word is
actually a term of endearment when said by blacks, Walton insisted, and when using it
during the argument with Simpson she had been telling him why, in her view, workers in
the coke plant should stop using the word. The district court reasoned that this evidence, if
believed, could raise an inference of retaliatory motive when coupled with the short
amount of time between Walton’s submission of her first EEOC charge in November 2006
and her discharge the following January. At trial, however, the district court granted
judgment as a matter of law for U.S. Steel, see FED. R. CIV. P. 50(a), reasoning that Walton
had not offered evidence contradicting management employees who testified that she was
fired for violating the company’s antiharassment and antidiscrimination policies.
Walton’s brief in this court is sparse and likely fails to satisfy Federal Rule of
Appellate Procedure 28(a)(9), which requires that an appellant’s brief include an argument.
See Correa v. White, 518 F.3d 516, 517 (7th Cir. 2008); Anderson v. Hardman, 241 F.3d 544, 545
(7th Cir. 2001). We surmise that Walton principally challenges the district court’s belief that
her evidence was too thin to give the jury, but we cannot begin to assess that contention
because Walton has not supplied a transcript of the two-day trial. Walton was denied leave
to appeal in forma pauperis by the district court and then by us, and the district court also
refused to provide Walton a free transcript of the trial. And yet Walton did not obtain a
trial transcript on her own; instead, all she has provided is a transcript of the judge’s
decision on the Rule 50(a) motion, leaving us in the dark about the trial evidence and
unable to determine whether it was enough to sustain a verdict in Walton’s favor. This
alone would be reason enough to dismiss the appeal. See FED. R. APP. P. 10(b)(2) (“If the
appellant intends to urge on appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the evidence, the appellant must include in the record a
transcript of all evidence relevant to that finding or conclusion.”); Hicks v. Avery Drei, LLC,
654 F.3d 739, 743–44 (7th Cir. 2011) (noting that plaintiff forfeited evidentiary challenge by
failing to provide transcript of oral arguments or district court’s bench ruling on motion in
limine); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n.10 (7th Cir. 2003)
No. 12-1075 Page 5
(declining to evaluate district court’s exclusion of expert testimony where plaintiff did not
request that transcript of Daubert hearing be included in record on appeal); LaFollette v.
Savage, 63 F.3d 540, 544–45 (7th Cir. 1995) (dismissing appeal of jury verdict as against
weight of evidence where plaintiff failed to include complete trial transcript in record on
appeal); Woods v. Thieret, 5 F.3d 244, 245 (7th Cir. 1993) (same).
Walton also suggests that the district court erred in granting summary judgment on
her claim under the Fair Labor Standards Act and calls our attention to the Supreme
Court’s subsequent decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct.
1325 (2011), holding that the Act protects employees from retaliation based on oral as well
as written complaints. Id. at 1336. Walton, however, waived this argument by failing to
raise it in response to summary judgment. See Palmer v. Marion Cnty., 327 F.3d 588, 597–98
(7th Cir. 2003); Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999).
Moreover, had this claim survived summary judgment, it would have failed for the same
reason as Walton’s Title VII claim: Walton identified no evidence suggesting that U.S.
Steel’s stated reason for firing her was pretextual. See Cichon v. Exelon Generation Co., L.L.C.,
401 F.3d 803, 810–11 (7th Cir. 2005).
We have evaluated Walton’s remaining contentions and conclude that none has
merit. Accordingly, the judgment is AFFIRMED.