Buie v. Quad/Graphics, Inc.

• Decision Date: 27 April 2004
• Docket Number: No. 03-2026.,03-2026.
• Citation: 366 F.3d 496
• Parties: Anthony D. BUIE, Plaintiff-Appellant, v. QUAD/GRAPHICS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

366 F.3d 496

Anthony D. BUIE, Plaintiff-Appellant, v. QUAD/GRAPHICS, INC., Defendant-Appellee.

No. 03-2026.

United States Court of Appeals, Seventh Circuit.

Argued February 13, 2004.

Decided April 27, 2004.

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Brenda L. Lewison (argued), Milwaukee, WI, for Plaintiff-Appellant.

Thomas W. Scrivner (argued), Michael Best & Friedrich, Milwaukee, WI, for Defendant-Appellee.

Before FLAUM, Chief Judge, and MANION and DIANE P. WOOD, Circuit Judges.

MANION, Circuit Judge.

Anthony D. Buie is a black man with AIDS. He alleged that Quad/Graphics, Incorporated committed (1) racial discrimination in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; (2) sexual discrimination in violation of Title VII; (3) disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; and (4) retaliation under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq. The district court entered summary judgment in Quad/Graphics' favor as to all claims. On appeal, Buie abandons his theories of racial and sexual discrimination but maintains that he was entitled to reach a jury with his claims under the ADA and FMLA. We affirm.

I.

Because this appeal comes to us after summary judgment in favor of Quad/Graphics, we review the record in the light most favorable to Buie. E.g., Rogers v. City of Chicago, 320 F.3d 748, 750 (7th Cir.2003). From November 28, 1997 through December 1, 1999, Buie worked in the finishing department at Quad/Graphics, which produces printed materials. Buie's supervisors warned him about frequent absenteeism three times between March 1998 and September 9, 1999. When providing the latest warning to Buie, Buie's supervisor, Scott Connell, wrote that "[i]f Anthony continues to have attendance problems he may be termed [sic] from Quad Graphics." Buie was nonetheless absent without excuse and without notice again on September 24 and October 10, 1999.

On October 15, 1999, Buie called Connell on the telephone — after his shift had already begun — and told him that he was sick and would not work that day. Connell responded by saying that Buie's job was in jeopardy. Buie then said that he had AIDS and that his absenteeism was because of the syndrome. This was the first time Quad/Graphics knew of Buie's condition. After Connell learned that Buie had AIDS, he told Buie (either on October 15 or October 17; Buie's affidavit provides both dates) not to return to work.¹

On October 21, 1999, at the instruction of Steve Kirk, the finishing department manager, Buie met with Caroline Vrabel, Quad/Graphics' corporate employee services manager. Vrabel told Buie that he could apply for FMLA leave for some of the absences when he had called in sick. She further told him not to report to work until he had completed the FMLA application and his attendance issue was resolved. Buie complied with Vrabel's directions. Only after Buie returned to work, however, did Frank Arndorfer, vice president of finishing operations, decide that his leave would be considered a disciplinary suspension for excessive absenteeism. Buie was unaware of that designation when he first left work.

Buie met with Vrabel and Arndorfer on November 10, 1999. Vrabel told Buie that she had excused many of his absences and requested that short-term disability benefits be paid to him for those absences. But Vrabel also stated that she had calculated that he still had accumulated 14 absences during the preceding 11 months that could not be excused, including six no-call, no-show absences. On November 16, 1999, Buie met again with Vrabel and Arndorfer. Arndorfer presented him with a last chance agreement and offered him the choice between signing the agreement or being fired immediately. The agreement, which Buie signed, stated that Buie could be fired for any violation of the employee services manual or the agreement itself. Buie then returned to work, but the peace was shortlived.

On November 29, 1999, Buie had a confrontation with a superior, Harold Bridges, while the two were working on a conveyor belt. According to Bridges (who is black), after he upbraided Buie for falling behind in his work, Buie treated Bridges to an outburst about how Buie would work on the conveyor belt when he pleased and how Bridges and other black employees did not know how to "get over on these white mother______s." Bridges admitted that he replied by saying that "niggas [sic] always want something for nothing" and stated that Buie reacted to this remark by pushing bundles of publications off of the conveyor belt and refusing Bridges' order to return to work.

Connell soon learned of, and investigated, the incident. Several employees confirmed Bridges' version of events. Connell also asked for Buie's side of the story. Buie denied telling Bridges that he would work when he pleased, pushing publications off of the conveyor belt, and making the racist statement that Bridges attributed to him. Buie further explained he would not return to work under Bridges because of Bridges' own use of a racial slur. After considering the evidence, Connell issued a written warning to Buie.

Buie, for his part, did not let matters rest there. He knew that one of the employees who had corroborated Bridges' account was Diane Grignon and, on December 1, 1999, he confronted her. As Grignon soon told Connell, Buie pointed his finger at her and said, at a range where Grignon could feel Buie's spittle on her face, "I'll get you, bitch." As Grignon recounted, when she asked him whether that was a threat, Buie replied that it was and asked where her witnesses were. The confrontation ended with Grignon pushing Buie's finger from her face as Connell approached.

Later that day, Connell learned that the house mother of the halfway house in which Grignon resided had received a call from a man identifying himself as "Anthony." The caller said that if "something happens to [Grignon] on the bus tonight, it's her own fault." At that point, Connell, Kirk, and Arndorfer decided to fire Buie, whom they discharged the next day (December 2) through a letter signed by Arndorfer. Grignon was disciplined for her part in the incident, but not fired.

Buie's work-related troubles did not end with his discharge. He later was found guilty in the State of Wisconsin Circuit Court of Waukesha County for disorderly conduct as a result of his confrontation with Grignon. The state court found that the prosecution

met its burden of proof establishing that this defendant was profane and otherwise disorderly — or otherwise disorderly. I would point to him getting within six inches of Ms. Grignon, putting his finger in her face so close and speaking in such a way and so close that the spitle [sic] would go across to her and making threatening remarks. This is all under circumstances tending to cause or provoke an immediate disturbance of public order.

Buie sued Quad/Graphics in the district court, alleging four claims: (1) racial discrimination in violation of § 1981 and Title VII; (2) sexual discrimination in violation of Title VII; (3) disability discrimination under the ADA; and (4) FMLA retaliation. The district court entered summary judgment in Quad/Graphics' favor, disregarding several parts of Buie's affidavit in the process. On appeal, Buie abandons his claims of racial and sexual discrimination but maintains that he was entitled to reach a jury with his claims under the ADA and FMLA.

II.

We review the district court's grant of summary judgment de novo, construing all facts in favor of Buie, the nonmoving party. Rogers, 320 F.3d at 752. Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In short, summary judgment is warranted where "a rational trier of fact could not find for the non-moving party." Rogers, 320 F.3d at 752.

The ADA forbids certain employers from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (2000). It is undisputed that Quad/Graphics is an employer covered by the ADA and that Buie is an "individual with a disability" for purposes of the statute.² To prove that he suffered disability discrimination under the ADA, Buie may proceed under the direct or indirect methods. Robin v. Espo Engineering Corp., 200 F.3d 1081, 1089 (7th Cir.2000). There are two types of permissible evidence under the direct method: direct evidence and circumstantial evidence. Rogers, 320 F.3d at 753. The former "essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus." Id. The latter is evidence that "allows a jury to infer intentional discrimination by the decision-maker." Id.

Buie may also proceed under the indirect method, which first requires him to establish a prima facie case of discrimination. To do so, Buie must show that (1) he is disabled under the ADA; (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) he has suffered from an adverse employment decision because of the disability. Dvorak v. Mostardi Platt Assoc., Inc., 289 F.3d 479, 483 (7th Cir.2002). Were Buie to put forth a prima facie case, the burden would then shift to Quad/Graphics to articulate a nondiscriminatory reason for each adverse employment action. Id. at 485. If Quad/Graphics were to meet its burden, Buie would then have to prove by a...