Bunn v. Khoury Enters., Inc.

• Decision Date: 28 May 2014
• Docket Number: No. 13–2292.,13–2292.
• Parties: Joshua BUNN, Plaintiff–Appellant, v. KHOURY ENTERPRISES, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

753 F.3d 676

Joshua BUNN, Plaintiff–Appellant,

v.KHOURY ENTERPRISES, INC., Defendant–Appellee.

No. 13–2292.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 13, 2013.

Decided May 28, 2014.

Christopher K. Starkey, Indianapolis, IN, for Plaintiff–Appellant.

Michael Shaun Dalrymple, Law Office of Michael Dalrymple, Indianapolis, IN, for Defendant–Appellee.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Joshua Bunn quit his job at a Dairy Queen franchise and sued the franchisee, his former employer, under the Americans with Disabilities Act. Bunn, who is vision-impaired, believed that the employer failed to accommodate his disability as required by law and that it subjected him to illegal disparate treatment when it reduced his scheduled hours during the winter months. The district court granted the employer's motion for summary judgment on all claims, and Bunn appealed. After disposing of an initial procedural argument, we find that Bunn's failure-to-accommodate claim falls short because the employer did reasonably accommodate Bunn's disability. Next, we find that his disparate treatment claim fails because he has not introduced sufficient evidence to create a triable issue of material fact and because the undisputed facts show that the defendant is entitled to judgment as a matter of law. We affirm the judgment of the district court in all respects.

I. Background

Joshua Bunn is legally blind. He has no vision in one eye and greatly reduced vision in the other. On July 25, 2010, Bunn applied for employment with Khoury Enterprises (“Khoury”), a firm operating Dairy Queen franchises in the Indianapolis area. On September 27, 2010, Khoury hired Bunn for an hourly position. The parties dispute whether that position was formally classified as “full-time” or “part-time,” but for the purposes of this lawsuit that distinction is irrelevant.

Typically, hourly employees at Khoury's Dairy Queen stores were required to rotate between various duty stations. These included preparing ice cream treats, preparing grilled food, working the cash register, maintaining the dining area, and more. Bunn's first assignment was to the “Chill” department, in which Dairy Queen's well-known ice cream treats were prepared. Bunn was unable to perform certain duties within the department without accommodation. The type on the ingredient labels was too small, and the monitors displaying orders to be filled were too high.

Store manager Larry Johnson took responsibility for finding a position better suited to Bunn's needs. Eventually, he trained Bunn in the “Expo” department, in which employees were responsible for delivering food to dine-in customers and keeping the store and the dining area clean. Bunn was able to perform his duties in the Expo department with minimal accommodation, and Johnson decided to schedule Bunn exclusively in Expo. That meant Bunn's position was different from the position held by most of his hourly peers, as they continued to rotate between departments while he stayed put. But it did not mean that Bunn was given fewer hours. From the time he was trained until the time he was suspended due to insubordinate conduct towards a supervisor, Bunn was scheduled full-time.

On November 17, 2010, night manager Norma Caballero asked Bunn to put his cell phone away while working (Bunn had been warned about using his phone during his shift on multiple occasions). Bunn refused, and Caballero reported that he gave her an “attitude” for the rest of the shift, including shoving a trash can at her when she asked him to take out the garbage. Caballero contacted Larry Johnson, and Bunn was suspended for ten days. Bunn signed a written suspension notice indicating that he understood why he was being disciplined.

Bunn's hours decreased following the suspension. In December 2010, Bunn requested and received seven days off. Khoury's restaurants were also closed for the holidays, and on occasion closed due to inclement weather. Bunn worked only 23.41 hours that month. In January 2011, after returning from vacation, Bunn worked just 12.33 hours. It is undisputed that, given the nature of a Dairy Queen franchise's business, Khoury's restaurants saw decreased demand during the cold weather months and adjusted many employee schedules accordingly. On February 1, 2011, Bunn submitted his resignation. He told Johnson that he felt he could work more hours with another employer; Johnson agreed.

After his resignation became effective, Bunn filed a timely charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC declined to pursue the charge and issued a right-to-sue letter. Bunn brought this lawsuit alleging failure to accommodate his disability and disparate treatment, both in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112. The district court granted summary judgment in Khoury's favor on all claims, finding that no material facts were genuinely disputed and that the undisputed facts entitled Khoury to a judgment as a matter of law. Bunn appeals, and we affirm.

II. Analysis

There are three issues before us on appeal: (1) whether the district court erred by granting summary judgment before Bunn had a chance to respond to a late-filed affidavit submitted by the defendant; (2) whether the district court erred in granting summary judgment to the defendant on Bunn's failure-to-accommodate claim; and (3) whether the district court erred by granting summary judgment to the defendant on Bunn's disparate treatment claim. We affirm the district court's treatment of this case in all respects.

A. Bunn's Procedural Argument

Bunn begins by complaining about the briefing schedule. Khoury filed its motion and supporting brief for summary judgment on February 1, 2013. The Larry Johnson “affidavit” attached to those filings consisted of a signature page, and nothing else. Nonetheless, Khoury's brief relied heavily on facts allegedly supplied by the missing body of that affidavit. Bunn twice filed for extensions of time to respond to Khoury's motion for summary judgment, ultimately filing a response on March 20, 2013. Bunn was aware of the deficiency in Khoury's filings at the time of his response; he noted it in his brief, but “speculated” that the absence of the affidavit made little difference. On April 30, 2013, the district court ordered Khoury to file the missing pages, and Khoury complied on May 6, 2013. On May 13, 2013, the district court granted Khoury's motion for summary judgment. Bunn believes it was an error for the district court to fail to give him a separate, additional response period in which to file a brief addressing the completed Johnson affidavit. We disagree for two reasons.

The first reason is a legal one. Bunn's argument, at its core, attacks the district court's application of its own local rules. Local Rule 56.1(b) for the Southern District of Indiana affords a litigant 28 days to respond to a “summary judgment motion.” Bunn was given 28 days (and then some) in which to respond to Khoury's motion. There is nothing in the plain language of the rule concerning an additional 28–day response period when one party is directed to correct a clerical error; the rule only applies to a response to a “motion,” not to a misfiled affidavit. The district court's decision not to wait for a response therefore rested on its interpretation of an ambiguity, or of an area of no coverage, in the local rules. “[D]istrict courts have considerable discretion in interpreting and applying their own local rules.” Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 223 (7th Cir.1988). We will intrude on that discretion only where we are “convinced” the district court made a mistake. Id. We cannot say we are “convinced” the district court made a mistake in this case when there is nothing at all in the rules to suggest that it did. What we can say is that the district court made a discretionary call concerning a matter not directly covered by the local or federal rules, as it was perfectly entitled to do.

The second reason we find Bunn's procedural argument unpersuasive is a practical one. Bunn was not prejudiced in the slightest by Khoury's failure to attach the complete Johnson affidavit to its motion for summary judgment. Every fact derived therefrom on which Khoury intended to rely was cited within its brief supporting the motion. Thus, even if Bunn could not look at the affidavit itself, he was aware of its contents and could have submitted contradictory evidence with his response, if he had any. He was also free to bring the matter to the district court's attention at any time prior to his long-delayed submission of a response brief. But he did not, and, in his response brief, Bunn himself averred that the missing affidavit made little difference. There is no legal or equitable reason for us to reverse on these grounds.

B. Failure to Accommodate

Bunn asks us to review the district court's adverse grant of summary judgment on his failure to accommodate claim, a task which we undertake de novo. Swetlik v. Crawford, 738 F.3d 818, 826 (7th Cir.2013). Summary judgment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir.2001). A “material fact” is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” exists with respect to any such materialfact, and summary judgment is therefore inappropriate, when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. On the other hand, where the factual record taken as a whole could not lead a rational trier of fact to...