Perez v. Staples Contract & Commercial LLC

• Decision Date: 14 April 2022
• Docket Number: 21-2601
• Citation: 31 F.4th 560
• Parties: James L. PEREZ, Plaintiff-Appellant, v. STAPLES CONTRACT & COMMERCIAL LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

31 F.4th 560

James L. PEREZ, Plaintiff-Appellant,

v.STAPLES CONTRACT & COMMERCIAL LLC, Defendant-Appellee.

No. 21-2601

United States Court of Appeals, Seventh Circuit.

Argued February 15, 2022

Decided April 14, 2022

Kent David Sinson, Attorney, Sinson Law Group, Chicago, IL, Joanna C. Fryer, Attorney, Joanna C. Fryer, Attorney At Law, Chicago, IL, for Plaintiff-Appellant.

Michael A. Wilder, Jennifer Lynn Jones, Attorneys, Littler Mendelson P.C., Chicago, IL, for Defendant-Appellee.

Before Wood, Hamilton, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

A sales representative failed to meet the requirements of his employer's plan to address his deficient performance, so he was fired. He believes his employer retaliated against him because he served on a jury and refused to participate in his company's sale of a product banned in another state. Because the district court correctly granted summary judgment to the employer, concluding that the sales representative was terminated not in retaliation for protected activities but because of his poor sales production, we affirm.

I. Background

A. Factual Background¹

James Perez of Elmhurst, Illinois, began work at Staples as a national trainer in 2011. He held that position for four years until he became a sales representative in January 2015. His supervisor was Fred Coha, an area sales manager.

Perez's documented performance issues began five months later. Coha told Perez that his year-to-year sales growth did not meet the company's expectations. Coha placed Perez on a "weekly activity plan" to increase his sales. Perez was informed that "additional steps may be taken" if his sales results did not improve in 90 days. Six months later Perez was still not meeting the company's objectives, so Coha placed him on another weekly activity plan. Perez again received an admonition that if his sales did not improve further steps may be taken. Coha and Perez met weekly to discuss Perez's work performance through December 2015.

The following year Staples introduced a program to increase sales. Under the program, sales representatives were divided into two roles: account managers, who targeted repeat local business, and account developers, who targeted larger, multiple-location accounts with higher dollar amounts. Perez was classified as an account manager, as was co-worker Julie Claver.

The program went into effect in March 2016. Shortly before that Coha reassigned an account valued at $70,000 from Perez to another employee. A few weeks later, Coha transferred another account away from Perez to Claver. Perez's job performance continued to falter, so Coha placed Perez on an "associate success plan." Coha emailed the draft plan to his supervisor, Doug Watson, as well as to Jamie Faber in human resources, for their review. Coha also sent Perez the plan with a start date of March 7, 2016, and an end date of June 6, 2016. Perez and Coha met and signed the plan on March 11, 2016.

The associate success plan stated that Perez's performance continued to fall below expectations. To make the necessary improvements, Perez was to meet three minimum plan requirements: (1) close $75,000 in SalesForce.com "wins" per 30-day period, (2) make five selling appointments per week (one of which was to be a first meeting), and (3) maintain $1,000,000 in his SalesForce.com pipeline and make sales growth of $63,462 per period. While the associate success plan was in effect, Coha met with Perez, regularly and one-on-one, to monitor his performance and to assist him in meeting these expectations.

Over the course of the plan, Coha reviewed Perez's numbers and determined that he was not meeting its minimum requirements. First, Perez closed $48,000 in SalesForce.com wins in March, $75,000 in April, and $25,000 in May. (Perez disputes these figures, relying on a chart he created—more on that chart later). Second, Perez's sales pipeline was consistently at or about $330,000, although Perez contends the average amount was $354,420. While Perez was on the associate success plan, Coha emailed Watson about his team's potential hiring needs. Coha acknowledged that Perez's performance could lead to Perez losing his job, stating "there is a good chance he does not make the cut."

In early 2016, Perez worked on a Staples account with X-Sport Fitness that involved the sale of laundry detergent in New York. A supplier recommended a product called "Clax Mild Forte." That supplier later informed Coha and others that sale of that detergent in the state of New York was prohibited due to its chemical makeup. Perez set up a conference call with Coha and others to discuss substituting a different product for Clax Mild Forte.

According to Perez, he told Coha that he did "not feel comfortable knowingly selling an illegal detergent to the state of New York." Perez says Coha became angry and responded he would "take care of it." The same day, an X-Sport Fitness representative sent an email, confirming receipt of a shipment of Clax Mild Forte, which Perez reviewed. Perez did not respond to the email, understanding that Coha was handling the issue. Coha never discussed this detergent issue again with Perez, and Perez never reported it to Staples's human resources department or ethics hotline.

In spring 2016, after the plan commenced, Perez was summoned for jury service in Illinois state court. He informed Coha about his upcoming jury duty about three weeks beforehand.² In response, Perez says Coha had a "funny" facial reaction, shrugged his shoulders, and said only "okay." Perez later reminded Coha of his upcoming jury service, and Coha asked Perez if he could "get out of it." Perez responded he could not. From May 10–13, 2016, Perez served as the foreperson on a jury in a criminal case in DuPage County Circuit Court.

During the associate success plan period, Coha kept his supervisor Watson informed about Perez's performance. Coha emailed Watson updated figures in early June 2016 which showed that Perez was not in compliance with the plan. Coha also sent this information to Faber in human resources. Watson consulted with his supervisor about Perez's expected termination. The next day, June 10, 2016, Coha met with Perez and Faber, and they informed Perez that his employment with Staples was at its end.

B. Procedural History

One week later, Perez sued Staples in Illinois state court, alleging violations of the Illinois Jury Act and the Illinois Whistleblower Act, as well as common-law retaliatory discharge based on those statutes. Staples removed the case to the United States District Court for the Northern District of Illinois. Perez did not move to remand the case to state court under 28 U.S.C. § 1447(c).

During litigation the parties engaged in several discovery disputes. Among these, Perez alleged Staples withheld responsive documents from the laptop computer he used when he worked there. Perez also asked the district court to bar Staples from claiming he ever failed to comply with the associate success plan. In the alternative, Perez requested that Staples be ordered to produce his work laptop for inspection. The magistrate judge denied the motions, and Perez did not appeal those decisions to the district judge under Federal Rule of Civil Procedure 72.

Staples then moved for summary judgment. Before deciding the motion, the district court resolved certain evidentiary issues. Perez relied heavily on his own affidavit to contest certain facts, but the court disregarded two statements in Perez's affidavit as contradicted by his deposition. These concerned Perez's jury service extending the term of his associate success plan, and Perez telling Coha that Perez refused to participate in the sale of Clax Mild Forte detergent.

The district court also considered a sales chart Perez created which was marked Ex. 31 to his affidavit. The court doubted there was sufficient foundation to admit the chart into evidence but considered it for purposes of the dispositive motion. The court did not accept Perez's argument that adverse inferences should be drawn from his lack of opportunity to inspect the laptop. To the court, Perez had failed to establish a basis for his claim that Staples had engaged in misconduct, and the proper time to resolve discovery disputes had passed. The court stated, "not all the exhibits relied upon by the parties were filed, and the Court did not consider facts dependent on those missing exhibits."

On the merits, the district court first addressed Perez's jury-duty claims. As to whether Perez's time as a juror caused his termination, the court applied a less demanding standard that Perez requested—the jury service was "a proximate cause" of the termination³ —rather than the more stringent benchmark that Staples wanted—"discharge was primarily in retaliation for" his jury service.⁴ Even under the lesser standard, the court concluded that there was insufficient evidence of causation because Perez had failed to meet the minimum requirements of the associate success plan. The court also found that Perez's comparisons between himself and the other account manager on his team, Claver, were irrelevant and did not support his claims.

Turning to Perez's whistleblower claims, the district court ruled that the regulation prohibiting the sale in New York of products containing more than a trace quantity of the chemical in Clax Mild Forte did not trigger an Illinois retaliatory discharge claim. Rather, such a claim arises only when a "clearly established policy of Illinois" is at issue. The court found no genuine issue of material fact as to whether Perez had participated in any protected activity under the Illinois Whistleblower Act either, as well as insufficient evidence of retaliatory motive to defeat summary judgment. The district court entered summary judgment for Staples on all counts.

Perez then moved to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). He contended the court had failed to consider all the evidence. The...