681 F.3d 888 (7th Cir. 2012), 11-1935, Smith v. Bray

Docket Nº:11-1935.
Citation:681 F.3d 888
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Darrel SMITH, Plaintiff-Appellant, v. Denise BRAY, Defendant-Appellee.
Attorney:Yusra S. Gomaa, Rima N. Kapitan (argued), Attorneys, Kapitan Law Office, Ltd., Chicago, IL, for Plaintiff-Appellant. Carol A. Poplawski (argued), Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL, for Defendant-Appellee.
Judge Panel:Before RIPPLE and HAMILTON, Circuit Judges, and MYERSCOUGH, District Judge.[*]
Case Date:May 24, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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681 F.3d 888 (7th Cir. 2012)

Darrel SMITH, Plaintiff-Appellant,


Denise BRAY, Defendant-Appellee.

No. 11-1935.

United States Court of Appeals, Seventh Circuit

May 24, 2012

Argued Oct. 26, 2011.

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Yusra S. Gomaa, Rima N. Kapitan (argued), Attorneys, Kapitan Law Office, Ltd., Chicago, IL, for Plaintiff-Appellant.

Carol A. Poplawski (argued), Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL, for Defendant-Appellee.

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Before RIPPLE and HAMILTON, Circuit Judges, and MYERSCOUGH, District Judge.[*]

HAMILTON, Circuit Judge.

In most employment discrimination cases that arise in the private sector, the defendants are the employers themselves, most often corporations or other business organizations. In this case of alleged race discrimination and retaliation, however, the employer has gone through bankruptcy and so cannot be sued for relief. The plaintiff in this case has sought relief from two individuals who worked for the bankrupt employer. Such claims are permitted under 42 U.S.C. § 1981 for race discrimination and retaliation in contractual relationships, including employment. In this appeal we consider what is needed to prove that a particular individual is legally responsible for the alleged discrimination and/or retaliation. We also address the problem that can arise when a party moving for summary judgment uses her reply brief to object to the admissibility of evidence on which the non-moving party relies in opposing summary judgment, and the nonmoving party has no further opportunity to respond to the objection.

Plaintiff Darrel Smith claims that he endured serious racist harassment from his immediate supervisor at former defendant Equistar Chemicals, LP, and was fired for complaining about it. Equistar was an affiliate of another former defendant, Lyondell Chemicals Company, but both companies are now bankrupt and discharged from any liability to Smith. His only hope for a damages remedy was to sue the individuals responsible for the alleged wrongs. Smith has settled his claims against the primary wrongdoer, his former supervisor James Bianchetta. This appeal involves Smith's claims against Equistar's human resources manager Denise Bray, who Smith says conspired with Bianchetta to retaliate against him in violation of § 1981. Smith asserts that Bray ignored his complaints about the harassment and persuaded her bosses to terminate him to retaliate for lodging them. The district court granted Bray's motion for summary judgment, and Smith appeals.

We must decide whether Smith presented sufficient evidence: (1) that Bray caused him to be fired; and if so, (2) that she acted with the motive to retaliate against him. Although we find that Smith has presented evidence sufficient to raise a genuine issue of material fact as to whether Bray participated in the decision to fire him, we hold that he has not offered sufficient admissible evidence to allow a reasonable jury to find that she was motivated by a desire to retaliate against him for his complaints of race discrimination.

I. Factual and Procedural Background

We review de novo the district court's decision to grant summary judgment to Bray. E.g., Gross v. PPG Industries, Inc., 636 F.3d 884, 888 (7th Cir.2011). " Summary judgment is appropriate when there are no genuine issues of material fact and judgment as a matter of law is warranted for the moving party." Id., citing Fed.R.Civ.P. 56(a) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We may affirm summary judgment for Bray only if no reasonable trier of fact could find in Smith's favor. E.g., id. Because we are reviewing summary judgment against Smith, our account of the facts gives him the benefit of conflicts in the admissible evidence and favorable inferences from that evidence, but we do not vouch for the objective truth of this account. See O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir.2011).

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In November 2000, Smith began working as a process technician at Equistar's polypropylene unit in Morris, Illinois. From June 2003 forward, Smith's direct supervisor was former defendant James Bianchetta. Smith is African American; Bianchetta is white. Smith has testified that Bianchetta and some co-workers made viciously racist statements in his presence. Among them were statements that black people are lazy; that slavery should be revived; that Hurricane Katrina was a good thing to the extent it removed African Americans from prime real estate in New Orleans; and that the growth of the black population should be limited by mandatory abortions and castrations. Smith testified that these offensive racist conversations took place at least weekly. Bianchetta would also call Smith into his office to subject him to hours-long racist tirades, and toward the end of Smith's employment such harassment occurred multiple times per week.

Defendant Bray was the manager of the Equistar plant's human resources department and was responsible for investigating complaints of discrimination there. Smith complained about Bianchetta's harassment several times to Joy Nixon, a human resources representative, who relayed Smith's complaints to Bray. Also, the polypropylene unit superintendent, Jim Arrajj, testified that in May 2006, Bray showed him a complaint from Smith describing racist statements made by co-workers. Equistar company policy required local human resources managers like Bray to notify the corporate human resources department when they learned that racial harassment had occurred. Bray did not recall ever discussing Smith's complaints with anyone in the corporate office, nor did Bray herself discipline Bianchetta or any other employee for harassing Smith.

Smith also reported having conflicts with other employees, including Mark Hieser, a white process technician on a different shift. In 2004, Smith complained several times to Bianchetta, Bray, and Nixon about Hieser " not doing his job." Hieser countered that Smith was not cleaning up the work area after his shift. Smith complained about Hieser's " constant harassment" to Bray, who told him that Hieser was an " equal opportunity picker" and that she would not get involved. On February 3, 2005, an anonymous caller registered an employee hotline complaint accusing Smith of using incorrect materials. Hieser submitted a statement about Smith's error, prompting Smith— according to the hotline caller— to call Hieser a " racist bigot m* * * * * f* * * * * " and to say that the " gloves are off" and " I'll get even after this." Smith denied making the statements. Hieser reported this incident to Bray, who investigated and did not discipline either man.

In January 2006, Smith volunteered for a special project to boost his promotion prospects. The project required Smith to identify, test, and label hundreds of circuit-breakers in the Morris plant and to enter his findings in an electronic spreadsheet. The breaker project was in addition to Smith's other responsibilities. At some point during Smith's work on the project, an employee placed a sign in Smith's work area that said " DVL," which apparently meant that Smith " does very little." On April 9, 2006, an anonymous caller registered a second hotline complaint about Smith, this one accusing him of sleeping on the job and keeping inaccurate time records of his work hours. Smith was not disciplined for his alleged dozing, but he and other employees received oral reprimands for the time-sheet discrepancies. On May 1, 2006, Smith stopped working on the incomplete breaker project because another employee was taking over his duties. Bianchetta asked Smith to transfer his work product to the replacement, but

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Smith refused. Equistar's information technology department recovered the spreadsheet and found it to be largely blank. Around June 7, 2006, Bianchetta issued a written reprimand to Smith for deleting the spreadsheet. Smith blamed co-workers for erasing the data.

During the first few months of 2006, Smith and Bianchetta argued frequently. In one argument, Bianchetta raised his voice, slammed the door, and indicated that he was going to tell Bray that Smith had been insubordinate. Smith retained a lawyer. When Bianchetta learned this, he told Smith that getting a lawyer was " the worst f* * *ing thing you can do," that he would " let Denise [Bray] know that you have a lawyer," and that " we're going to deal with you from here on, from this point on. You're going to be sorry. You're going to regret this." Smith Dep. 345.

The situation deteriorated even further in June 2006. One day in mid-to-late June, Smith discovered garbage and feces in his locker. Smith saw a psychologist and physician the next day, and he called Bianchetta to explain his absence and to inform him that he would be pursuing a medical leave. Bianchetta told him, " ain't nothing wrong with you and you're faking it, and Denise [Bray] and I already know, you won't be coming back." Smith Dep. 162. In a later phone call, Bianchetta elaborated, " you're fired, and [Bray] and myself said you're fired and you won't be coming back." Id. at 173. During his absence from work, Smith also called Bray, who told him, " if Jim [Bianchetta] is not going to talk to you[,] I'm not going to talk to you." Id. at 169. (Bianchetta had instructed his employees not to accept telephone calls from Smith during his absence.)

On June 19, 2006, Smith applied for short-term disability benefits through Concentra, a third-party administrator of benefits for Equistar. Around the same date, Smith received a note from his doctor advising him not to work for two weeks because of work-related stress. Smith also informed Bianchetta of the doctor's recommendation. On June 23, Concentra tried to contact Smith's doctor to...

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