Ennin v. CNH Indus. Am., LLC

• Decision Date: 27 December 2017
• Docket Number: No. 17-2270,17-2270
• Parties: Abdullah ENNIN, Plaintiff-Appellant, v. CNH INDUSTRIAL AMERICA, LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

878 F.3d 590

Abdullah ENNIN, Plaintiff-Appellant,

v.CNH INDUSTRIAL AMERICA, LLC, Defendant-Appellee.

No. 17-2270

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2017

Decided December 27, 2017

Swaray E. Conteh, Attorney, Law Office of Swaray Conteh, LLC, Ikedigbo Nnaemeka, Attorney, Ikedigbo Nnaemeka, Legal Counsel, Indianapolis, IN for Plaintiff-Appellant.

Darren A. Craig, Attorney, Heather L. Wilson, Attorney, Frost Brown Todd LLC, Indianapolis, IN, Jennifer Ann Rulon, Attorney, Frost Brown Todd LLC, Cincinnati, OH, for Defendant-Appellee.

Before Easterbrook and Manion, Circuit Judges, and Lee, District Judge.^*

Manion, Circuit Judge.

Abdullah Ennin appeals from a judgment in favor of his employer in this discrimination case. He claims that CNH Industrial America terminated his employment because of his race and national origin, disability, and decision to take leave under the Family and Medical Leave Act of 1993. He also alleges that CNH interfered with his rights under the FMLA, conspired to violate his federal rights under 42 U.S.C. §§ 1985 & 1986, and engaged in negligent supervision in violation of Indiana law.

We agree with the district court in all respects. First, we conclude that by not filing a surreply brief in the district court, Ennin waived the admissibility of certain evidence that CNH attacked as inadmissible. Ennin had introduced the evidence in an attempt to show that CNH terminated him on a later date than it claimed, that is, after it knew that Ennin had been disabled and taken FMLA leave. Without the evidence, the record is undisputed that CNH terminated Ennin’s employment before it had knowledge of the alleged disability or his FMLA leave. Second, nothing in the record supports Ennin’s argument that CNH’s stated reasons for terminating his employment were pretext for any sort of discrimination. Third, CNH did not interfere with Ennin’s right to take FMLA leave. And finally, Ennin’s federal conspiracy and state law negligent-supervision claims necessarily fail because they are derivative of underlying violations of federally protected rights. Without any underlying violations, Ennin cannot sustain these claims. Therefore, we affirm the judgment below.

I. Background

Ennin, who was born in Ghana and is a naturalized American citizen, began working for CNH Industrial America on January 3, 2012. CNH "designs, produces and sells agricultural and construction equipment, trucks, commercial vehicles, buses and specialty vehicles, in addition to a broad portfolio of powertrain applications."¹ Ennin was the "Export Second Shift Operations Supervisor" and had dozens of hourly workers reporting to him. He reported to Export Operations Manager Michael Lewis, who in turn reported to Stephen Lincoln. Ennin was the only black supervisor at his facility in Lebanon, Indiana.

After working at CNH with no incident for more than two years, Ennin received a written warning for misconduct in May 2014. He had gotten into a verbal altercation with another supervisor over the volume of a radio playing in the break room. According to the warning, Ennin’s inappropriate behavior was witnessed by two of his own hourly employees. Ennin was warned that his behavior was not acceptable because, as a supervisor, he had to set a better example for his subordinates. Both Ennin and Lewis signed the written warning.

Ennin ran into more trouble a few months later. He was on his way to work on November 17, 2014, when his car broke down. At 1:43 PM, 17 minutes before his shift was to begin, Ennin notified Lewis that he would be late to work. Ennin then called his hourly employee Gonzalo Chavez—the lead hourly employee on his shift—to ask for help. Chavez had already clocked in, but he left CNH’s facility at 2:00 PM and went to help Ennin. It turned out that Ennin’s car had run out of gas, so Chavez brought Ennin some gas and then both returned to CNH at 2:46 PM. Upon their arrival, Ennin permitted Chavez to follow him through the supervisor’s entrance after Ennin had swiped his badge, in violation of company policy. And to top it off, Ennin neglected to adjust Chavez’s time sheet in CNH’s timekeeping system to reflect that Chavez had been off the premises for 46 minutes while clocked in.

Once the events of November 17 were reported to Human Resources, Ennin was called in for a November 19 meeting with Lewis, Lincoln, and HR manager Stacy Darlin. They asked Ennin why he had permitted Chavez to enter the facility without swiping his own badge; Ennin responded that everyone does it and he had done it many times previously without being reprimanded. With respect to the timesheet issue, Ennin claimed that he didn’t know Chavez was at work when he called, but Chavez had already told HR that he did tell Ennin he had already clocked in. In the end Lewis, Lincoln, and Darlin told Ennin that his actions were unacceptable, but didn’t inform him of a final decision. Nevertheless, Ennin thought after the meeting that he was certain to be fired.

Darlin, Lewis, and Lincoln say they met separately shortly after their November 19 meeting with Ennin and determined that Ennin should be fired for his multiple violations of company policy. According to them, they decided to let Ennin know the next day. But later in the afternoon on November 19, Ennin texted Lewis and asked to go home because his hemorrhoids

were acting up. Lewis agreed. But Ennin did not come to work on November 20. Instead, he called his doctor and scheduled a previously planned hemorrhoidectomy for November 21. Ennin requested and received leave from CNH’s third-party administrator, Prudential, and said that he would return to work by January 1.

On November 20, Darlin received notice that Ennin had requested leave and would not be at work that day, so she could not inform him of his termination at work. Ennin then had his surgery, a minor procedure which allowed him to return home the same day. On December 1, while Ennin was still on leave, Darlin learned that Prudential had approved Ennin for short-term disability benefits from November 19 through December 14. That same day, she sent a letter to Ennin informing him that his employment had been terminated.² The letter indicated that the decision was made on November 19 and stated that Ennin was fired because of the November 17 incident with Chavez and Ennin’s subsequent refusal to take responsibility for his actions.

Ennin sued CNH, arguing that he was fired because of his race, national origin, disability (related to the hemorrhoidectomy

), and decision to take FMLA leave. On summary judgment, Ennin attempted to introduce evidence to show that CNH did not decide to terminate his employment until December 1. Establishing that later termination date would have allowed Ennin to argue that the decision-makers knew when they fired him that he had had surgery and that he had taken FMLA leave. However, CNH argued in its reply brief that Ennin’s evidence was hearsay and unauthenticated. Ennin never filed a surreply brief, even though the local rules of the Southern District of Indiana permitted him to do so as of right to respond to evidentiary objections. As a result, the district court held Ennin had waived his evidentiary arguments, excluded the evidence, and then granted summary judgment to CNH based on the rest of the record. Ennin timely appealed.

II. Analysis

A. Exclusion of Ennin’s Proffered Evidence

As a threshold matter, we must resolve the dispute over Ennin’s proffered evidence. Ennin claims that the evidence he submitted—particularly emails and texts involving the decision-makers at CNH—proves that CNH did not make its decision to fire him until December 1. If we were to consider the evidence and agree that it creates a genuine issue of fact, that would at least somewhat bolster Ennin’s disability discrimination and FMLA retaliation claims. So we must determine whether the district court properly excluded the evidence.

The district court treated CNH’s evidentiary objections as unopposed because Ennin failed to file a surreply brief to respond to them. Failure to respond to an argument generally results in waiver, and failure to present an argument to the district court usually means we will not address it on appeal. Bonte v. U.S. Bank, N.A. , 624 F.3d 461, 466 (7th Cir. 2010) (failure to respond in the district court); Allen v. City of Chicago , 865 F.3d 936, 943 (7th Cir. 2017) (arguments presented for the first time on appeal are waived). Nevertheless, we have held that "a party need not seek leave to file a surreply in order to preserve an argument for purposes of appeal," Costello v. Grundon , 651 F.3d 614, 635 (7th Cir. 2011). The question here, which we have not yet answered, is whether a party must file a surreply to preserve an argument when such a brief is permitted as of right by the district court’s local rules.

In the context of evidentiary objections necessarily made for the first time in a reply brief, this quandary is not uncommon. In Smith v. Bray , 681 F.3d 888, 902 (7th Cir. 2012), overruled on other grounds by Ortiz v. Werner Enters., Inc. , 834 F.3d 760 (7th Cir. 2016), we explained that the issue can "arise in the summary judgment procedure when the moving party asserts in her reply brief that the opposing party is relying on inadmissible evidence." Since "the proponent of the evidence ordinarily need not make an argument in anticipation of an objection that may never be made[,]" a surreply brief would be, absent the rare oral argument, the non-moving party’s only opportunity to respond to such objections. Id. at 902–03. But surreply briefs are rare and discouraged in most districts. See id. at 903. So in Smith , we permitted the non-moving party to raise arguments in support of the evidence for the first time on appeal. Id. We concluded that where "the appellant did not have a meaningful opportunity to be heard on the evidentiary issue in the district court, it would not be fair to refuse to...