Holman, Willie P. v. Revere Elec Supply

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 14, 2005*
Decided November 15, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2057
Appeal from the United States District
WILLIE P. HOLMAN, JR., Court for the Northern District of
Plaintiff-Appellant, Illinois, Eastern Division
v. No. 02 C 6351
REVERE ELECTRIC SUPPLY CO., Sidney I. Schenkier,
Defendant-Appellee. Magistrate Judge.
ORDER
Willie Holman, Jr., sued his employer, Revere Electric Supply Company
(“Revere”), raising discrimination, harassment, and retaliation claims under Title
VII and the Americans with Disabilities Act (“ADA”). With the consent of all
parties, the case was assigned to a magistrate judge. Faced with cross-motions for
summary judgment, the magistrate judge wrote a comprehensive and thorough
opinion striking portions of affidavits that Holman submitted in support of his
motion for summary judgment, and denying on procedural grounds his retaliatory
*
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).
No. 05-2057 Page 2
discharge claim. The court then granted summary judgment for Revere. Holman
timely appealed and we now affirm.
In our de novo review of the grant of the defendant’s motion for summary
judgment, we review the following facts in the light most favorable to Holman. See
Allen v. City of Chicago, 351 F.3d 306, 311 (7th Cir. 2003). Holman suffered a
work-related injury in May 1999 and experienced related medical problems
throughout the next year. Revere’s manager of human resources, Judy Adamczyk,
offered Holman light-duty work that his doctors cleared him to perform, but he
often failed to show up for work or even call in with an excuse. When Holman
returned to work, Revere assigned him to work in the Pipe Shed, which required
him to do heavy lifting. In August 1999 Holman submitted an internal complaint
alleging the assignment was based on race because no white employees returning
from an injury were assigned to the Pipe Shed.
After months of requesting that Holman provide updated medical release
information, Adamczyk notified him by letter in November 1999 that his failure to
update his work status could result in termination. At a meeting to discuss
Holman’s failure to respond to the letter, he admitted receiving it, but claimed he
never opened the envelope. Adamczyk replied “you should open your mail and read
it.”
On February 1, 2000, Holman filed a charge with the EEOC and the Illinois
Department of Human Rights (“IDHR”) alleging that Adamczyk’s reply constituted
harassment based on race, disability, and in retaliation for the internal grievance
he submitted. On February 10, 2000 Revere fired Holman for “failing to follow
company policies.” Holman filed an amended charge with both agencies on
February 17, 2000 alleging discriminatory and retaliatory discharge for the internal
complaint he had made in August 1999. Holman did not allege in the amended
charge that Revere retaliated against him for the February 1 agency charges.
In this appeal, Holman claims the district court erred by: (1) striking portions
of his affidavits; (2) finding no genuine issue of material fact existed as to his
harassment claims; and (3) barring him from claiming retaliatory discharge for
filing his harassment charge with the EEOC.
We review a district court’s decision to strike parts of an affidavit supporting
or opposing a motion for summary judgment for an abuse of discretion. Kalis v.
Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000). Under Federal Rule of
Civil Procedure 56(e), affidavits must set forth such facts as would be admissible in
evidence. Holman contends the district court improperly struck the following
statements from the affidavits of Holman’s witnesses: (1) there were “incidents of
racial bias”; (2) Adamczyk subjected him to “undue verbal harassment”; (3) there
No. 05-2057 Page 3
was “disparate treatment”; or (4) plaintiff was terminated because of his race and
physical handicap. But Holman does not explain why these statements would be
admissible at trial; they are just the sort of legal conclusions that we have found
improper before. See, e.g., Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003).
Holman also contends the court should have allowed his statement that Revere
maintained an employee handbook. Yet he testified at an earlier deposition that
there was no employee handbook. The well-established rule is that affidavits in
conflict with prior sworn testimony should be disregarded. See Kalis, 231 F.3d at
1055. And Holman’s assertion that the district court erred in requiring him to
provide sworn affidavits is frivolous since Federal Rule of Civil Procedure 56(e)
mandates that affidavits be sworn documents.
Holman’s second argument on appeal is that the district court “ignored”
statements that he believes create triable issues of fact on his disability-based and
racial harassment claims. The statements he points to—from the affidavits of the
union representative and Holman’s supervisor that there was “harassment” and
“disparate treatment”—are conclusory, and in any event fail to allege whether any
such treatment was based on his race, disability, or in retaliation for protected
activity. Without evidence that the adverse treatment was based on a protected
characteristic, Holman has not created a triable issue of fact for a prima facie case
of harassment. See Patton v. Indianapolis Public School Bd. 276 F.3d 334, 339 (7th
Cir. 2002).
Finally, Holman argues that the district court erred in procedurally barring
his claim that Revere fired him in retaliation for filing his EEOC charge. The
district court barred the claim because it believed that Holman failed to plead it in
his federal court complaint or in his amended charge to the EEOC. We are satisfied
that he pleaded this claim in his complaint because his assertion “that he was
discharged additionally based on retaliation for his earlier EEO activity” put the
defendant on sufficient notice. See Fed. R. Civ. Proc. 8(a); Hoskins v. Poelstra, 320
F.3d 761, 764 (7th Cir. 2003).
The district court erred in the reasons it gave for barring Holman from
proceeding with his retaliatory discharge claim. Plaintiffs need not file an amended
charge of retaliation where the catalyst for the retaliation was the filing of the
original charge. See Horton v. Jackson County Bd. of County Comm’rs, 343 F.3d
897, 898 (7th Cir. 2003); Gawley v. Ind. Univ., 276 F.3d 301, 314 n. 8 (7th Cir.
2001). But we affirm the grant of summary judgment because Holman has
nevertheless failed to raise triable issues of fact. See Aviles v. Cornell Forge Co.,
183 F.3d 598, 603 (7th Cir. 1999) (providing that we may affirm summary judgment
on any basis we find in the record). To establish a prima facie case of retaliation a
plaintiff must show that he: (1) engaged in protected activity by filing a charge; (2)
was treated differently than a similarly situated employee who did not file a charge;
No. 05-2057 Page 4
and (3) was subjected to an adverse employment action even though he was
performing his job in a satisfactory manner. Stone v. City of Indianapolis Public
Utilities, 281 F.3d 640, 644 (7th Cir. 2002). Holman failed to present any evidence
on the second element and our analysis ends here.
Accordingly, we AFFIRM the grant of summary judgment.