Day v. Northern Indiana Public Service Corp.

• Decision Date: 08 January 1999
• Docket Number: No. 98-1605,98-1605
• Citation: 164 F.3d 382
• Parties: Wonda DAY, Plaintiff-Appellant, v. NORTHERN INDIANA PUBLIC SERVICE CORP., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 382

164 F.3d 382

Wonda DAY, Plaintiff-Appellant, v. NORTHERN INDIANA PUBLIC SERVICE CORP., Defendant-Appellee.

No. 98-1605.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 1998.

Decided Jan. 8, 1999.

Michael J. Foley, Foley & Foley, Chicago, IL, for Plaintiff-Appellant.

Robert D. Campbell, Andrew C. Porter, Schiff, Hardin & Waite, Chicago, IL, for Defendant-Appellee.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Wonda Day found herself behind the eight ball in this employment-discrimination suit when her lawyer ignored the district court's rule requiring all statements of fact in support of or opposing motions for summary judgment to be supported by citations to the record. Day's lawyer submitted a narrative statement of facts that contained only a single citation, to the whole of one deposition. The district judge deemed this insufficient, observing that the function of the rule is to provide pinpoint citations so that the judge can find the facts readily; citing a whole deposition frustrates that function. As a result the judge treated the employer's factual position as uncontested, as judges properly may do in order to enforce their rules about summary-judgment practice. E.g., Brasic v. Heinemann's, Inc., 121 F.3d 281, 285-86 (7th Cir.1997); Schulz v. Serfilco, Ltd., 965 F.2d 516, 518 (7th Cir.1992).

Given the district judge's view of the facts, this is a simple case. Day, a part-time customer service representative at Northern Indiana Public Service Corp. (NIPSCO), attributes adverse actions to her race, sex, and religion. For example, under the collective bargaining agreement between NIPSCO and the union that represents Day, requests to take vacation at a particular time are handled on a first-come-first-served basis and denied when they would reduce the number of persons at work below the level needed to run the business. Day asked for December 21, 1992, as a vacation day, and was turned down because other employees had asked earlier; she filed a charge of discrimination over the denial. During 1993 Day received most of the vacation schedule she requested, but some of the time off she wanted in June and July (the most popular vacation months) was unavailable. She filed a charge of discrimination after discovering that a person who asked after she did was allowed to take June 11 as a vacation day; NIPSCO responded that this was a bureaucratic error (and showed that similar errors had been made concerning other requests, without any apparent pattern of discrimination). A request for vacation time in August 1993 was granted at the last minute; again Day charged discrimination. NIPSCO replied that similar last-minute answers had been given on occasion to male or white part-time employees. Day challenges as discrimination the obligation to notify superiors when she left late for lunch or a break; NIPSCO responded that all employees must give this notice, so that supervisors know who is available for work at any given time. Day contends that by scheduling her for work on Wednesday evenings NIPSCO failed to accommodate her religious beliefs; NIPSCO responds that its flexible policies have made it easy for Day to change work periods and that as a result she has never worked on a Wednesday evening. Perhaps NIPSCO's explanations could have been pierced by a suitable factual reply, but, because the district court treated Day as having made no factual presentation, her suit was doomed.

In order to get anywhere on this appeal Day had to persuade us that the district court abused its discretion by disregarding her version of the facts. That objective, hard to achieve given deferential appellate review, was put out of reach when her lawyer repeated in this court the very performance that led the district court to disregard her affidavit. Circuit Rule 28(c) provides: "The statement of the facts required by Fed.R.App.P. 28(a)(7) shall be a fair summary without argument or comment. No fact shall be stated in this part of the brief unless it is supported by a reference to the page or pages of the record or the appendix where that fact appears." (We quote Circuit Rule 28(c) as amended on December 1, 1998, to update its reference to the national rule; no substantive change has been made in Circuit Rule 28(c) for more than a generation.) Day's lawyer violated both sentences of Circuit Rule 28(c), the first because the statement of facts is argumentative (it treats Day's position as established, even though the district court found it to be unsupported), and the second because it does not support the propositions with citations. Day's statement of facts is 8 1/2 pages long; the first six pages are unadorned by a single record reference. Eventually the brief cites one deposition, NIPSCO's statement of uncontested facts, and Day's affidavit. Just as in the district court, counsel expected the court to peruse the record without the help of pinpoint citations. It takes a brave, or foolhardy, lawyer to repeat in the court of appeals the very strategy that cost his client the case in the district court!

NIPSCO filed a motion asking us to strike Day's brief, but that step is inappropriate. Striking the brief would lead either to dismissal for want of prosecution (if we then denied...