Peters v. Wal-Mart Stores East, LP

NONPRECEDENTIAL DISPOSITION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 February 25, 2013*
Decided March 19, 2013
Before
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-2715 Appeal from the
United States District Court for the
SANDRA R. PETERS, Northern District of Indiana,
Plaintiff-Appellant, South Bend Division.
v. No. 3:07 CV 631
WAL-MART STORES EAST, LP, James T. Moody,
Defendant-Appellee. Judge.
ORDER
Sandra Peters, a black female, sued her employer, Wal-Mart Stores East, LP under
Title VII of the Civil Rights Act of 1964, alleging discrimination based on race and sex and
retaliation related to her working conditions. Late in the lawsuit, Wal-Mart fired Peters for
not coming to work, and she sought to amend her complaint to allege a claim for
discriminatory termination. The district court denied the request. Wal-Mart then moved
*
After examining the appellant’s brief and the record, we have concluded that oral
argument is unnecessary. Therefore the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 12-2715 Page 2
for summary judgment and persuaded the district court to strike Peters’s untimely
response to that motion and enter summary judgment dismissing all claims. Peters appeals
the summary judgment and also challenges the district court’s procedural decisions to
strike her late response and deny her motion to amend. We affirm.
Peters complains about multiple employment actions running from 2005 through
2007. We begin with her shift assignment and pay level. Peters began working as an
overnight stocker in Wal-Mart’s clothing department in July 2005. Wal-Mart paid her
$12.85 per hour, slightly above the hourly wage of $12.75 that she earned at her previous
job at Sam’s Club, a Wal-Mart subsidiary. Wal-Mart raised her pay to $13.25 per hour a
month later based on her positive final performance review from Sam’s Club. But she
complained to Wal-Mart that her raise should have been more generous. A few months
later, Peters learned that her store was hiring a support manager. Wal-Mart’s policy is to
promote applicants based on their qualifications, not just seniority. Peters did not apply for
the position because a supervisor told her that the application deadline had passed. Travis
Powell, a white man who applied for the position but had less seniority than Peters, was
hired for the position. Later, Peters asked to transfer off her overnight shift, but Wal-Mart
denied her request. The company allowed another overnight stocker, Athenia Cook, to
modify her schedule during the school year to care for her special-needs child; Cook is
white.
Peters claims to have suffered both emotional and physical injuries at work. In late
2006 she received some racist prank calls while on duty. Because prank calls are common
during overnight shifts, Wal-Mart posted a notice next to the phones instructing employees
how to track the calls. If an associate received a prank call, she was to dial *57 to determine
the call’s origin. Peters did not follow the procedure, however, and management was
unable to trace the calls. Peters also injured her back early in 2007 while grabbing a rack of
clothing that a coworker had knocked over. After Peters contacted management for
medical attention, Wal-Mart required her to take a drug test—a routine practice under the
company’s workplace injury policy.
Peters periodically clashed with coworkers and managers from 2006 through 2007.
On one occasion Cook and Peters fought over who should assist a customer. Their
immediate supervisor, Rodney Shoaf, intervened. Shoaf and Cook are white; Peters claims
that Shoaf scolded her, but not Cook, in front of others. Peters complained to Wal-Mart in
September 2006 and to the Equal Employment Opportunity Commission two months later
that Shoaf’s reprimand was race-biased. Later, in 2007, Shoaf privately reprimanded Peters
for poor productivity, refusing to assume extra assignments, and poor attendance. Peters
vigorously objected to one of these reprimands, so much so that two managers had to
intervene to try to calm her; she eventually stormed out of the store. Later that month,
No. 12-2715 Page 3
Peters and Shoaf again argued about Peters’s lack of productivity. Peters insisted that poor
health interfered with her performance and eventually took a medical leave for
post-traumatic stress disorder. Four months after taking leave, Peters applied for worker's
compensation benefits, asserting that her post-traumatic stress disorder was work-related.
Wal-Mart’s independent claims administrator denied the claim because her medical
records during her leave established that her condition was not work-related.
Peters sued Wal-Mart in 2007 for discrimination based on race and sex, and also
asserted claims for retaliation and hostile-work environment. Based on the events we have
recounted above, she alleged that Wal-Mart kept her hourly pay low, refused to promote
her to support manager, refused to change her work shift, and required her to take a drug
test after she hurt her back at work. She also claimed that the prank calls, Shoaf’s
intervention in her dispute with Cook, and his reprimands amounted to a hostile-work
environment and caused her post-traumatic stress disorder. All these employment actions,
she claimed, were motivated by discrimination based on race and sex. Peters also alleged
that Wal-Mart retaliated against her for filing a charge of racial bias in 2006.
The district court set several case-management deadlines under Federal Rule of
Civil Procedure 16(b) and specifically warned the parties that the schedule must be
followed. The deadline to amend pleadings was November 30, 2008; discovery closed in
April 2009; and July 2010 was the last day for dispositive motions. In December 2009 Wal-
Mart fired Peters for failing to return to work after her medical leave ended. Seven months
later, in June 2010, Peters sought to amend her complaint to add a claim for wrongful
termination. She argued that adding this claim would not prejudice Wal-Mart. At around
the same time, Wal-Mart moved for summary judgment. Peters responded to that motion
eight days after the court’s 28-day deadline had expired and waited three more weeks to
seek leave to file the late response, explaining that she had relied on an old version of
Rule 6(a) that she thought gave her more time.
The district court granted Wal-Mart’s motion for summary judgment, denied the
motion to amend, and struck the late response brief. On the procedural motions, the court
observed that Peters did not adequately explain why she waited over six months after her
discharge to seek permission to amend her complaint. The court also noted that Peters
failed to explain her mistaken reliance on an outdated version of Rule 6(a). On the merits
the court granted the motion for summary judgment for several reasons: (1) the denied
shift change, the drug test, the added work assignments, and the reprimands were not
materially adverse employment actions; (2) Wal-Mart did not limit her pay or deny her
worker’s compensation claim based on any prohibited ground; (4) the failure-to-promote
claim failed because Peters never applied for the manager position; and (5) the claim of a
hostile work environment failed because the prank calls were isolated and no evidence
No. 12-2715 Page 4
suggested that Shoaf was motivated by racial or sex-based bias when he intervened
between Cook and Peters.
On appeal Peters argues that the district court erred in granting summary judgment
for Wal-Mart on her discrimination, retaliation, and harassment claims. She focuses first on
three incidents that she says are evidence of discrimination: (1) Wal-Mart’s failure to
promote her to the support-manager position; (2) its decision not to transfer her to an
earlier shift; and (3) its enforcement of its drug-testing policy against her after she was
injured on the job. But none of these incidents constitutes unlawful discrimination. Peters
admits that she did not apply for the support-manager position, and this dooms her prima
facie claim for failure to promote. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir. 2003). Wal-Mart’s refusal to
allow Peters to change shifts is not unlawful because schedule assignments generally are
not adverse employment actions. See Porter v. City of Chicago, 700 F.3d 944, 955 (7th Cir.
2012). Moreover, to the extent that Wal-Mart treated Peters differently than Cook, Peters
offers no evidence that the difference in treatment was racially motivated; the undisputed
evidence shows that Wal-Mart’s decision to allow Cook to change shifts was based on the
needs of Cook’s child, not race. Finally, Peters has not offered any evidence that Wal-Mart
applied its drug-testing policy to her for any reason other than that it was standard policy
when an employee is injured at work. See Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997,
1002 (7th Cir. 2000).
Peters next addresses her retaliation claims, but summary judgment was proper
here, too. Her principal argument is that Wal-Mart denied her worker’s compensation
claim because she had filed a discrimination complaint against the company. But Peters
supplies no evidence that anyone at the third-party firm that processed her worker’s
compensation claim knew about her discrimination charge, so her charge of discrimination
could not have affected the decision to deny the claim. See Tomanovich v. City of Indianapolis,
457 F.3d 656, 668–69 (7th Cir. 2006) (affirming summary judgment on applicant’s retaliation
claim when applicant failed to show that potential employer knew he had filed a Title VII
complaint).
Her other allegations of retaliation fare no better. Peters contends that after she
transferred from Sam’s Club in 2005, Wal-Mart kept her pay low because she complained
about her hourly wage. Although Peters did complain about her pay, she has produced no
evidence that these complaints were based on her race or sex. Internal complaints
constitute protected activity under Title VII only if the employee complains of
discrimination on an impermissible ground. See Keeton v. Morningstar, Inc., 667 F.3d 877, 885
(7th Cir. 2012); Abuelyaman v. Ill. State Univ., 667 F.3d 800, 814 (7th Cir. 2011); Casna v. City of
No. 12-2715 Page 5
Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). It is true that near the end of 2006, Peters did
charge Shoaf with racial discrimination, but Peters offers no evidence that after she lodged
that complaint, Wal-Mart paid comparable workers more. Finally, to the extent that the
retaliation claim focuses on added work assignments and reprimands for poor
performance, it necessarily falls short; additional work assignments and negative
evaluations are not, without more, materially adverse employment actions. See Lapka v.
Chertoff, 517 F.3d 974, 986 (7th Cir. 2008) (concluding that more difficult or time-consuming
work assignments and decreased performance ratings were not materially adverse
employment actions absent tangible job consequences).
Peters also rehashes her allegations of racial harassment, but again fails to establish
a prima facie case. To survive summary judgment, Peters needed to submit evidence that
the reprimands, Shoaf’s intervention in the argument between her and Cook, and the prank
calls created a hostile work environment for which liability could be imposed on Wal-Mart.
See Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004). There is no evidence
that the reprimands were race-based. See Herron v. DaimlerChrysler Corp., 388 F.3d 293,
302–03 (7th Cir. 2004). Also, Shoaf’s discipline of Peters for arguing with Cook was an
isolated incident and therefore not pervasive or severe enough to constitute an objectively
hostile work environment. See id. at 303; Smith v. Ne. Ill. Univ., 388 F.3d 559, 566–67 (7th Cir.
2004); Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271–72 (7th Cir. 2004); Williams, 361
F.3d at 1029. Finally, Wal-Mart is not liable for the harassing calls Peters received from
unknown callers because the company provided a procedure for associates to track any
such calls, but Peters did not follow it. See Lapka, 517 F.3d at 984; Williams, 361 F.3d at 1029.
Peters next challenges the district court’s procedural ruling denying her motion for
leave to amend her complaint to add a wrongful-discharge claim. Because the deadline for
amending the pleadings had passed more than a year and half earlier, Peters first had to
show good cause to modify the scheduling order; only then does the general standard of
Rule 15(a)(2) apply. See FED. R. CIV. P. 16(b)(4); Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th
Cir. 2011); Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir.
2005). Peters insists that Wal-Mart would not have been prejudiced by an amendment
because it still had six weeks to file dispositive motions and the court could reopen
discovery. But the good-cause standard focuses on the diligence of the party seeking
amendment, not the prejudice to the nonmoving party. Alioto, 651 F.3d at 720; Trustmark,
424 F.3d at 553. Peters does not explain why she delayed seven months after Wal-Mart fired
her to propose her new claim. This would have been her seventh amended complaint, and
the motion came very late in the litigation. The district court did not abuse its discretion in
denying her motion to amend. See Alioto, 651 F.3d at 720; Johnson v. Cypress Hill, 641 F.3d
867, 872 (7th Cir. 2011); Carroll v. Stryker Corp., 658 F.3d 675, 684 (7th Cir. 2011).
No. 12-2715 Page 6
Finally, Peters insists that the district court erred in striking her response to
Wal-Mart’s motion for summary judgment. She argues that she relied on an old version of
Rule 6(a) and this amounts to “excusable neglect” under Rule 6(b)(1)(B). Generally, the
failure to apprehend the operative federal rules is no excuse for noncompliance. See Pioneer
Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 392 (1993); Marquez v. Mineta, 424 F.3d 539,
541 (7th Cir. 2005); Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132, 133–34 (7th Cir. 1996).
Although misinterpreting an ambiguous rule might be excusable, see Lewis v. Sch. Dist. #70,
523 F.3d 730, 740 (7th Cir. 2008); Prizevoits, 76 F.3d at 134, Peters does not contend the rule
contained an ambiguity. Rather, she argues that Wal-Mart was not prejudiced. But
prejudice is only one of the relevant factors under the Pioneer analysis. The others are the
duration and reasons for the delay; whether the litigant could have controlled the delay;
the litigant’s good faith; and the impact on the proceedings. Those factors do not favor
Peters. The older rule merely excluded weekends and holidays from periods under 11 days;
Peters had 28 days to respond, so any mistaken reliance on the old rule does not explain the
missed deadline. Also, despite the age of the case and the court’s explicit warning about
compliance with the scheduling order, Peters’s counsel inexplicably waited nearly three
weeks to seek permission for the late filing, thus undermining any claim of good-faith
mistake. Finally, Peters identifies nothing in her stricken response that might have affected
the district court’s analysis of her claims on the merits. The court did not abuse its
discretion in striking the brief. See Yancick v. Hanna Steel Corp., 653 F.3d 532, 539 (7th Cir.
2011); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006).
We have considered Peters’s other arguments, and they do not merit discussion.
Accordingly, the judgment is AFFIRMED.