McCurry v. Kenco Logistics Servs., LLC

• Decision Date: 07 November 2019
• Docket Number: No. 18-3206,18-3206
• Citation: 942 F.3d 783
• Parties: Edith MCCURRY, Plaintiff-Appellant, v. KENCO LOGISTICS SERVICES, LLC, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

942 F.3d 783

Edith MCCURRY, Plaintiff-Appellant,

v.KENCO LOGISTICS SERVICES, LLC, et al., Defendants-Appellees.

No. 18-3206

United States Court of Appeals, Seventh Circuit.

Argued April 11, 2019

Decided November 7, 2019

Jordan T. Hoffman, Attorney, Aurora, IL, Edith McCurry, Pembroke Township, IL, for Plaintiff-Appellant EDITH MCCURRY.

Jody Wilner Moran, Attorney, Julia P. Argentieri, Attorney, JACKSON LEWIS P.C., Chicago, IL, for Defendant-Appellee KENCO LOGISTIC SERVICES, LLC, a Tennessee Limited Liability Company.

Thomas R. Davies, Esq., Attorney, Kimberly J. Overbaugh, Attorney, HARMON & DAVIES, Lancaster, PA, for Defendant-Appellee MARS, INCORPORATED.

Jody Wilner Moran, Attorney, Julia P. Argentieri, Attorney, JACKSON LEWIS P.C., Chicago, IL, for Defendant-Appellee KELVIN WALSH.

Jody Wilner Moran, Attorney, JACKSON LEWIS P.C., Chicago, IL, for Defendant-Appellee MIKE MANZELLO.

Jody Wilner Moran, Attorney, Julia P. Argentieri, Attorney, JACKSON LEWIS P.C., Chicago, IL, for Defendant-Appellee DAVID JABALEY.

Before Sykes, Scudder, and St. Eve, Circuit Judges.

Sykes, Circuit Judge.

Edith McCurry worked at an Illinois warehouse owned by Mars, Inc., the well-known candy maker, and operated by Kenco Logistics Services, a third-party management firm. In March 2015 Kenco lost its contract with Mars and laid off its employees at the warehouse, including McCurry. More than a year later, she filed two rambling pro se complaints accusing Kenco, Mars, and several of her supervisors of discriminating against her based on her race, sex, age, and disability. She also alleged that Kenco and Mars conspired to violate her civil rights.

The district court consolidated the suits and dismissed some of the claims. The defendants then moved for summary judgment on the rest. McCurry’s response violated the local summary-judgment rule, so the judge accepted the defendants’ factual submissions as admitted and entered judgment in their favor. McCurry retained counsel and appealed.

We affirm. McCurry doesn’t challenge the judge’s decision to enforce the local summary-judgment rule. As a result, and unsurprisingly, the uncontested record contains no evidence to support a viable discrimination or conspiracy claim. Indeed, the appeal is utterly frivolous and McCurry’s monstrosity of an appellate brief is incoherent, so we also order her lawyer, Jordan T. Hoffman, to show cause why he should not be sanctioned or otherwise disciplined under Rules 28 and 38 of the Federal Rules of Appellate Procedure.

I. Background

We begin with the judge’s decision to enforce Local Rule 7.1(D),¹ which governs the summary-judgment process. McCurry violated multiple provisions of the rule. We include a sampling to provide an understanding of her noncompliance:

• Under Local Rule 7.1(D)(1)(a)–(c), a response to a summary-judgment motion must include the following specific sections with appropriate headings: an introduction, a response to the moving party’s statement of undisputed material facts, and an argument section. McCurry’s response to the defendants’ motions contained none of those sections. It was instead a disorganized, rambling, hard-to-decipher mess.

• Local Rule 7.1(D)(2)(b) requires that the response to the moving party’s statement of material facts must identify, in separate subsections: (1) the undisputed material facts; (2) the disputed material facts; (3) the disputed immaterial facts; (4) the undisputed immaterial facts; and (5) any additional material facts. Each disputed fact conceded to be material must be listed by number and supported by evidentiary documentation that is referenced by specific page. McCurry’s response was woefully noncompliant with these requirements. She responded to some facts by number but said only that she objected to them. She did not state the basis for her objections, nor did she respond with appropriate and specific citations to evidentiary documentation.

• Although McCurry did not include an argument section in her brief, her arguments were scattered randomly throughout her 62-page response, in probable violation of Local Rule 7.1(D)(5), which (by cross-reference to Rule 7.1(B)(4)) limits the argument section of a response brief to 15 pages or 7,000 words.

Under Local Rule 7.1(D)(2)(b)(6), the failure to properly respond to a numbered fact in an opponent’s statement of facts "will be deemed an admission of the fact." In light of McCurry’s widespread noncompliance, the judge deemed the defendants’ factual submissions admitted.

As we’ve noted, McCurry doesn’t challenge the judge’s decision to enforce Rule 7.1(D). Even if she had, we have repeatedly held that district judges may strictly enforce local summary-judgment rules, Ammons v. Aramark Uniform Services, Inc. , 368 F.3d 809, 817 (7th Cir. 2004), and the judge reasonably did so here.² Accordingly, our account of the facts is drawn from the defendants’ uncontested factual submissions.

We begin in 2013 when Mars contracted with Kenco, a third-party logistics firm, to manage its warehouse in Manteno, Illinois. Under the parties’ agreement, Kenco was responsible for day-to-day operations and exercised full control over its own employment policies. Kenco retained several employees from the previous warehouse manager. One holdover was Edith McCurry, who worked in human resources. McCurry, a black woman born in 1962, performed clerical and administrative duties, such as handling warehouse payroll, generating reports, and assisting with employee relations. She had no managerial responsibilities.

In October 2014 Kenco hired Lori Varvel, a white woman 17 years younger than McCurry, as the human-resources manager. Varvel assumed some of McCurry’s duties, though McCurry’s pay remained the same.

On December 9 McCurry worked an hour and a half of unauthorized overtime in violation of Kenco’s timekeeping policy. Ten days later Varvel gave her a written warning for working overtime without authorization, misrepresenting her hours, and failing to report the correct hours. On January 29, 2015, Kenco announced that it had lost the Mars contract and that all employees at the warehouse would be let go at the end of March.

In August 2016 McCurry filed a 77-page, 386-paragraph pro se complaint against Kenco, Mars, and several supervisors alleging discrimination based on her race, gender, age, and disability. She also alleged a claim for conspiracy to violate her civil rights and several state-law claims. None of her claims alleged that she was fired for a discriminatory reason. Rather, she complained about conduct during the course of her employment at the Mars warehouse.

Not two weeks later, McCurry filed a second lawsuit against largely the same group of defendants. This one, like the first, was sprawling. Indeed, at 89 pages and 423 paragraphs, the second complaint was even more rambling than the first, but it more or less repeated the allegations in the earlier suit. The district court consolidated the cases.

The judge dismissed some claims but allowed the following to proceed: (1) claims against Kenco for discrimination on the basis of race and sex in violation of Title VII of the Civil Rights Act of 1964; (2) a claim against Kenco, Mars, and the supervisors for discrimination on the basis of race in violation of 42 U.S.C. § 1981 ; (3) a claim against Kenco for violation of the Age Discrimination in Employment Act ("ADEA"); (4) a claim against Kenco for violation of the Americans with Disabilities Act ("ADA"); and (5) a conspiracy claim against Kenco, Mars, and the supervisors under 42 U.S.C. § 1985(3).

The defendants moved for summary judgment on these surviving claims. As we’ve explained, McCurry’s response did not comply with the local summary-judgment rule, so the judge accepted the defendants’ statement of facts as admitted pursuant to Local Rule 7.1(D)(2)(b)(6). Charitably working his way through each claim, the judge concluded that the evidence was insufficient to support liability for any form of employment discrimination or conspiracy.

McCurry moved for reconsideration. The judge denied the motion, noting that McCurry did not identify any newly discovered evidence and merely rehashed old arguments. The judge also elaborated on his decision to enforce Local Rule 7.1(D), providing an exhaustive account of McCurry’s violations.

II. Discussion

We review a summary judgment de novo. Kopplin v. Wis. Cent. Ltd. , 914 F.3d 1099, 1102 (7th Cir. 2019). Summary judgment is warranted if the moving party shows that there is no genuine dispute as to any material fact and he is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). As this case comes to us, the record is limited to the defendants’ evidentiary submissions. Apex Dig., Inc. v. Sears, Roebuck & Co. , 735 F.3d 962, 965 (7th Cir. 2013).

A. Title VII and § 1981 Claims Against the Kenco Defendants

The legal analysis for discrimination claims under Title VII and § 1981 is identical, Ferrill v. Oak Creek–Franklin Joint Sch. Dist. , 860 F.3d 494, 499 (7th Cir. 2017), so we merge our discussion of these claims. As in any employment-discrimination case, we ask whether the evidence would permit a reasonable fact-finder to conclude that McCurry was subjected to an adverse employment action based on a statutorily prohibited factor—here, race or sex. Ortiz v. Werner Enters., Inc. , 834 F.3d 760, 765 (7th Cir. 2016).

McCurry maintains that Kenco discriminated against her by paying her less than her white, male coworker Leonard Szplett. But Szplett earned more than McCurry because he had extensive managerial responsibilities and she had none. McCurry’s unequal-pay claim is therefore baseless. See Poullard v. McDonald , 829 F.3d 844, 855 (7th Cir. 2016) (affirming a grant of summary judgment after finding that an employee’s claim that he was paid less than his supervisor did not show discrimination).

Next, McCurry argues that Kenco discriminated against her by hiring Varvel as the human-resources manager. This is essentially a failure-to-promote...