697 F.3d 661 (7th Cir. 2012), 11-3685, McInnis v. Duncan

Docket Nº:11-3685.
Citation:697 F.3d 661
Opinion Judge:PER CURIAM.
Party Name:Gregory McINNIS, Plaintiff-Appellant, v. Arne DUNCAN, United States Department of Education, Secretary, Defendant-Appellee.
Attorney:Andrew Dutkanych, III (argued), Attorney, Biesecker, Dutkanych & Macer, Evansville, IN, for Plaintiff-Appellant. Kathryn A. Kelly (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.
Judge Panel:Before BAUER, WOOD, and SYKES, Circuit Judges.
Case Date:October 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 661

697 F.3d 661 (7th Cir. 2012)

Gregory McINNIS, Plaintiff-Appellant,

v.

Arne DUNCAN, United States Department of Education, Secretary, Defendant-Appellee.

No. 11-3685.

United States Court of Appeals, Seventh Circuit.

October 12, 2012

Argued Aug. 8, 2012.

Page 662

Andrew Dutkanych, III (argued), Attorney, Biesecker, Dutkanych & Macer, Evansville, IN, for Plaintiff-Appellant.

Kathryn A. Kelly (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before BAUER, WOOD, and SYKES, Circuit Judges.

PER CURIAM.

Gregory McInnis, a law-school graduate who has never been licensed to practice, filed a pro se complaint accusing his employer, the Department of Education, of violating federal law by passing him over for promotion and giving him a performance appraisal that he says is both inaccurate and incomplete. But after he had failed for a second time to attend a scheduled hearing, the district court dismissed the suit for failure to prosecute. We conclude that dismissal was not an abuse of discretion; the district court reasonably could have found McInnis' conduct serious enough to warrant dismissal, and the court had warned him after the first no-show that a repeat could lead to dismissal.

I.

McInnis has worked for the Department of Education for more than 20 years, never as a supervisor. In June 2009, he applied for promotion to a supervisory job. He lost out to a female candidate, and a few weeks later, management gave him a performance appraisal rating his work as satisfactory but including written comments that he viewed as inaccurate and incomplete. After submitting two administrative charges alleging race and gender discrimination as well as retaliation, McInnis filed suit against the agency claiming that management had violated the Whistleblower Protection Act, 5 U.S.C. §§ 1211 to 1222, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.

The agency moved to dismiss McInnis' whistleblower claim for failure to exhaust, arguing that he never submitted that allegation to the United States Office of Special Counsel (" OSC" ) as required before filing suit, see 5 U.S.C. §§ 1214(a)(3), 7703. The district court scheduled a hearing on that motion for August 23, 2011, and continued the hearing to August 30 at McInnis' request. McInnis then wrote " amended" on his original complaint and refiled it with a copy of correspondence from the Office of Special Counsel informing him that OSC had closed his file when he failed to respond to its proposed factual and legal determinations.

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McInnis failed to appear at the August 30 hearing. There is no transcript of this proceeding, but afterward the district court issued a minute order. That entry discloses that the court denied as moot the agency's motion to dismiss McInnis' initial complaint in light of the " amended" version. The court also scheduled a status hearing for November 3. The court added that McInnis " is warned that failure to appear on a Court's noticed hearing may result in the dismissal of the action, for want of prosecution, pursuant to [N.D. Ill.] Local Rule 41.1." McInnis failed to appear on November 3. By then the Department of Education had moved again to dismiss the complaint except for the Title VII claim, and in open court the district judge asked the agency's lawyer whether she had communicated with McInnis. Counsel replied:

Yes. We have had a lot of contact. In fact, he called me last week asking to have this date continued and I— because he wanted to get an attorney and I suggested that would be fine, how about if we continue my answer date as well and he would have none of that.

So he said he would see me here today so I expected to see him. If you'd like me to have the case recalled.

After that the court passed McInnis' case and heard other matters to give him a chance to show up, but the court did not direct anyone (at least on the record) to try calling him. Nor did the agency's lawyer represent that she had tried to call McInnis while waiting on the judge. When the case was recalled, counsel said this about her most recent conversation (by telephone) with McInnis:

I don't think he was pleased to hear that I was going to do another motion to dismiss so he— I just reiterated that he wanted 30 days to get a lawyer so that's the only thing he's asked for.

....

And we had agreed that I would then get an extension of the answer date. When we had called your clerk, he then changed his tune and we— he said he would see me today. So all I can tell you is that he wants to look for a lawyer.

The court then dismissed the lawsuit with prejudice for failure to prosecute, explaining that McInnis had been warned of this consequence after missing his most recent court date. Twenty-nine days later, the lawyer who presently represents McInnis filed a notice of appeal from the dismissal, but in the interim counsel did not ask the district judge to reconsider that decision.

II.

On appeal McInnis argues that the district court abused its discretion by dismissing his pro se lawsuit. In his brief, McInnis represents that on October 28, 2011— six days before the November 3 hearing— he and the agency's lawyer " jointly contacted" the...

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