Reed v. Ewald Automotive Group, Inc.

NONPRECEDENTIAL DISPOSITION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 May 11, 2011*
Decided May 11, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 10-3186
MELVIN D. REED, Appeal from the United States District Court
Plaintiff-Appellant, for the Eastern District of Wisconsin.
v. Nos. 08-C-684 & 08-C-685
EWALD AUTOMOTIVE GROUP, INC., William E. Callahan, Jr.,
Defendant-Appellee. Magistrate Judge.
ORDER
Melvin Reed claims that he was a victim of racial discrimination and retaliation
during his brief employment as a car salesman at a dealership in Milwaukee, Wisconsin. He
*
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. 10-3186 Page 2
sued his former employer, named here as Ewald Automotive Group,1 under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. A magistrate judge, presiding by
consent, granted summary judgment for Ewald. We affirm that decision.
Before this litigation, Reed already had filed no fewer than 14 suits in federal court
claiming employment discrimination by businesses in the Milwaukee area, see Reed v.
Innovative Health & Fitness, 259 F. App’x 875, 876 (7th Cir. 2008), and two more cases have
followed this one. Reed, an African American, started his job at Ewald on November 2,
2005. On November 29 he and John St. Clair, a white salesman, threatened each other with
physical harm during an argument, and both men were warned that any workplace
violence or threats in the future would result in termination. This incident is one of several
recounted in a charge of discrimination that Reed submitted to the Equal Employment
Opportunity Commission and the Wisconsin Department of Workforce Development in
early February 2006. Then on March 6, 2006, Reed argued with Jeffrey Halama, a white sales
manager, and threatened to strike him. A coworker intervened and restrained Reed, who
was fired the same day. In December 2006 he submitted another charge of discrimination to
the EEOC and the Department of Workforce Development, this time alleging that he was
fired because of his race and in retaliation for his February administrative charge. The
EEOC dismissed both charges in May 2008, and Reed filed a separate Title VII suit for each.
The two cases were consolidated in the district court, and we treat them as one action.
In his complaint Reed alleged that Ewald subjected him to a hostile work
environment and ultimately fired him because of his race and to retaliate for complaining
about discrimination. He minimized his role in the altercations with St. Clair and Halama,
and criticized the dealership’s response to those episodes. Reed said that superiors
disciplined him for perceived infractions that white employees committed without
consequence, and he alleged that white coworkers were not reprimanded or verbally
1
Reed was employed by Ewald’s Mayfair Chrysler-Jeep, Inc., which, according to
public records, was merged into Ewald Holdings, Inc., in early 2008. The named defendant,
Ewald Automotive Group (the company converted to a limited liability corporation before
Reed filed suit and appears to be inaccurately named in the case caption and in the parties’s
submissions) has no apparent ownership interest in the corporation that employed Reed,
and we have not been told how the two companies are related. But Reed’s former employer
has not protested the naming error, so we have disregarded the mistake. See Sembos v.
Philips Components, 376 F.3d 696, 698 n.1 (7th Cir. 2004). For simplicity we refer to the
defendant as “Ewald.”
No. 10-3186 Page 3
abused in front of peers as he was. He also accused managers of diverting sales away from
him and other black employees.
Reed proceeded under the indirect method of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). After the magistrate judge resolved a dispute about the adequacy of
Ewald’s responses to Reed’s discovery requests, the dealership moved for summary
judgment. Ewald argued that Reed had suffered no materially adverse action except for the
loss of his job, which the dealership attributed to the threats against St. Clair and Halama.
Reed’s admissible evidence was limited to his own affidavit, so Ewald’s presentation mostly
was uncontested. We summarize the undisputed evidence in the light most favorable to
Reed. See Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011).
Reed had been employed for just a few weeks before quarreling with St. Clair, who
was working at a computer terminal when Reed tried to initiate a conversation. St. Clair
asked Reed not to interrupt, and when Reed would not leave him alone, he began cursing.
After yelling back, “Ain’t going to be too many more of those f you’s,” Reed rose from his
chair and approached St. Clair until they were standing inches apart. St. Clair turned away
but told Reed to watch his back, prompting Reed to taunt, “Do you want to jump?” Reed
later boasted that St. Clair knew he had met “more than his match.” Ewald’s misconduct
policy, which is included in the employee handbook given to Reed, prohibits both physical
violence and threats in the workplace. In his affidavit Reed denies threatening St. Clair, but
when Ewald investigated the incident Reed did not deny making a threat and instead
asserted that his actions had been justified by St. Clair’s behavior. Ewald issued Reed and
St. Clair identically worded “final” warnings.
In the months that followed, Reed’s interactions with managers sometimes were
contentious. He avers, for example, that a sales manager scolded and berated him on several
occasions. And after he filed his first administrative charge in early February, says Reed,
Halama disparaged and cursed him, and refused to discuss work matters without a witness
present. Reed adds that another manager, Cary Kerns, also cursed him and dared him to
sue when Reed asked that the swearing stop.
Reed also recounts two racially charged comments from coworkers. He once asked a
white salesman for a personal loan, and his coworker expressed reluctance to risk giving
Reed money because “Blacks don’t last too long around here.” Another time Reed
overheard a sales manager comment that young black men moving to the suburbs had
caused an increase in crime.
No. 10-3186 Page 4
Reed’s allegation that Ewald purposely diverted sales away from black employees is
not supported by the record. In his affidavit Reed avers that he and two other black
salesman conferred and decided that one of them should confront managers about their
perception that sales calls were being unfairly distributed to three favored coworkers, all of
them white. But Reed himself did not meet with Ewald managers, and neither is there
admissible evidence that the group’s designated spokesman did so. Also missing is
evidence supporting the group’s perception of favoritism. Reed says that twice he was the
initial sales contact for a prospective customer whose name he entered into Ewald’s
database, but both customers were assisted by a white staff member upon returning to the
dealership. Reed speculated that managers stole these customers from him because of his
race, thus denying him sales commissions. But Ewald does not have a record of a sale to
either customer, and neither did Reed present evidence that his prior contact was known to
the sales manager when they returned to the dealership. In fact, Reed was not even working
when one of the customers returned.
Reed’s termination followed an argument spurred by a company policy requiring
sales staff to arrive early and clear snow away from cars on mornings after significant
overnight snowfall. Reed did not arrive early on March 6, 2006, and when Halama accused
him of giving a “bullshit excuse,” Reed put down his hat and briefcase and approached
Halama. One witness described Reed’s approach as “very physical and aggressive.” An
explosive chest-to-chest shouting match followed. Reed reportedly yelled, “I’ll deck you,”
and had to be pulled away from Halama. Immediately afterward, Reed told general
manager Roger Duame that he would use Duame’s coffee cup to hit Halama if he was
disrespected again, a threat Reed says he made in jest. Following an investigation Ewald
fired Reed based on a finding that he threatened Halama despite the earlier warning.
The magistrate judge concluded that Reed had not established a prima facie case of
discrimination. The court reasoned that the verbal abuse and reprimands he experienced
were not sufficiently severe or pervasive to significantly alter the conditions of his
employment, and thus did not qualify as materially adverse employment actions or create a
hostile work environment. See Scruggs v. Garst Seed Co., 587 F.3d 832, 840-41 (7th Cir. 2009);
Hancock v. Potter, 531 F.3d 474, 478-79 (7th Cir. 2008); Haugerud v. Amery Sch. Dist., 259 F.3d
678, 693 (7th Cir. 2001). Indeed, the court explained, many of the incidents Reed cited as
evidence of discrimination, when viewed in context, point more to his own insubordination.
See Luckie v. Ameritech Corp., 389 F.3d 708, 713-14 (7th Cir. 2004).
The magistrate judge assumed that lost sales commissions would have been a
tangible injury, see Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996), but
Reed lacked evidence that his two customers allegedly steered to white salesmen ever
No. 10-3186 Page 5
finalized purchases from the dealership. He also lacked evidence that Ewald knew about his
prior contact with these prospects. And while Reed did suffer an adverse action when he
was fired, the magistrate judge concluded that he could not prove that any white employee
had been retained after twice violating Ewald’s anti-violence policy. See Anders v. Waste
Mgmt. of Wis., 463 F.3d 670, 675-77 (7th Cir. 2006).
As for Reed’s claim that Ewald fired him to retaliate for filing a charge of
discrimination, the magistrate judge again concluded that Reed had not established a prima
facie case. See Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 677 (7th Cir. 2010). The court
reasoned that, although Reed was fired only a month after submitting his administrative
complaint, see Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 616 (7th Cir. 2001), the undisputed
reason for his termination was his altercation with Halama after the earlier warning.
On appeal Reed contends that the magistrate judge erroneously ignored much of the
evidence he submitted at summary judgment; that evidence, Reed apparently believes,
establishes disputed issues of material fact warranting a trial. Reed also argues that the
court abused its discretion by refusing to compel Ewald to produce all of the discovery he
demanded.
We reject Reed’s assertion that the court simply accepted as true Ewald’s version of
events while ignoring his side of the story. As the court reminded Reed in its order granting
summary judgment, the local rules of the Eastern District of Wisconsin provide that each
specific paragraph in a litigant’s proposed findings of fact will be deemed admitted unless
the opponent contradicts that paragraph with citations to admissible evidence. See E.D. Wis.
Civil L.R. 56(b)(2), (4) (2010) (formerly designated as Local Rule 56.2(b)(2), (d),(e) (2009)).
Ewald included in its motion for summary judgment a copy of this rule and warned Reed
about the consequence of noncompliance, see Timms v. Frank, 953 F.2d 281, 285 (7th Cir.
1992), and yet Reed made no effort to follow the rule. Instead he tendered a short affidavit,
which the magistrate judge characterized as noncompliant but nevertheless considered to
the extent it rests on personal knowledge. But otherwise the court relied on Ewald’s
uncontested statements of fact, as was appropriate even though Reed is pro se. See Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006); Schrott v. Bristol-Meyers Squibb Co., 403 F.3d 940,
944 (7th Cir. 2005). We likewise have evaluated only the evidence that was properly before
the magistrate judge and discount any statements in Reed’s appellate brief that are not
supported by the record.
As we understand his brief, Reed principally contends that the magistrate judge
hampered his development of admissible evidence by not forcing Ewald to give him all the
discovery he requested. On two occasions the court had denied a motion to compel because
No. 10-3186 Page 6
Reed omitted copies of the disputed discovery requests. He then tried again, this time
challenging as incomplete Ewald’s responses to 10 of 19 interrogatories and 13 of 18
requests for production. Reed was satisfied, though, with the dealership’s other responses,
including its compliance with his most-probative request for the disciplinary records of
specific Ewald employees.
Among the 10 interrogatories that Reed said had not been answered fully, only a
few—those demanding information about the sales staff employed at the dealership
between June 2005 and December 2006, about other employees who were fired because of
workplace violence, and about the handling of his personnel file—appear to be relevant to
his claims. But Ewald responded to each of these requests, and in this court Reed does not
contend that the magistrate judge abused his broad discretion, see Semien v. Life Ins. Co. of N.
Am., 436 F.3d 805, 813 (7th Cir. 2006), by not forcing Ewald to make further disclosures.
Reed instead focuses on several requests for production that the magistrate judge did
not compel Ewald to satisfy. These seek work schedules, electronic time cards, and payroll
records for Ewald employees. Reed suggests that these records would have allowed him to
compare his performance with other coworkers. But Reed was fired because of misconduct,
not because of absences or tardiness or because he did not help shovel snow. His
preoccupation with proving that his attendance record was better than many of his
coworkers is not relevant to the reason given for his termination, so we cannot conclude that
the court abused its discretion by limiting this inquiry.
On the evidence presented, the grant of summary judgment for Ewald was correct. It
is undisputed that Reed was fired because he threatened his coworkers. A handful of
episodes of yelling and stray racist remarks cannot sustain a claim of racial harassment or
create an inference that race was the reason for Reed’s termination. See Stephens v. Erickson,
569 F.3d 779, 790 (7th Cir. 2009); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 552
(7th Cir. 2002). And on this record a jury could not reasonably conclude that Reed was fired
because of his administrative complaint. Before that charge of discrimination was filed,
Reed already had been warned that his next threat against a coworker would be cost him
his job. See Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 850-51 (7th Cir. 2008); Lucas v.
PyraMax Bank, FSB, 539 F.3d 661, 667 (7th Cir. 2008). Accordingly, the judgment is
AFFIRMED.