Joshua Bunn v. Khoury Enterprises, Inc. , 753 F.3d 676 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2292
JOSHUA BUNN,
Plaintiff-Appellant,
v.
KHOURY ENTERPRISES, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:11-cv-01540 — William T. Lawrence, Judge.
ARGUED DECEMBER 13, 2013 — DECIDED MAY 28, 2014
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Joshua Bunn quit his job at a Dairy
Queen franchise and sued the franchisee, his former employer,
under the Americans with Disabilities Act. Bunn, who is
vision-impaired, believed that the employer failed to accom-
modate his disability as required by law and that it subjected
him to illegal disparate treatment when it reduced his sched-
uled hours during the winter months. The district court
2 No. 13-2292
granted the employer’s motion for summary judgment on all
claims, and Bunn appealed. After disposing of an initial
procedural argument, we find that Bunn’s failure-to-accommo-
date claim falls short because the employer did reasonably
accommodate Bunn’s disability. Next, we find that his dispa-
rate treatment claim fails because he has not introduced
sufficient evidence to create a triable issue of material fact and
because the undisputed facts show that the defendant is
entitled to judgment as a matter of law. We affirm the judg-
ment of the district court in all respects.
I. BACKGROUND
Joshua Bunn is legally blind. He has no vision in one eye
and greatly reduced vision in the other. On July 25, 2010, Bunn
applied for employment with Khoury Enterprises (“Khoury”),
a firm operating Dairy Queen franchises in the Indianapolis
area. On September 27, 2010, Khoury hired Bunn for an hourly
position. The parties dispute whether that position was
formally classified as “full-time” or “part-time,” but for the
purposes of this lawsuit that distinction is irrelevant.
Typically, hourly employees at Khoury’s Dairy Queen
stores were required to rotate between various duty stations.
These included preparing ice cream treats, preparing grilled
food, working the cash register, maintaining the dining area,
and more. Bunn’s first assignment was to the “Chill” depart-
ment, in which Dairy Queen’s well-known ice cream treats
were prepared. Bunn was unable to perform certain duties
within the department without accommodation. The type on
the ingredient labels was too small, and the monitors display-
ing orders to be filled were too high.
No. 13-2292 3
Store manager Larry Johnson took responsibility for finding
a position better suited to Bunn’s needs. Eventually, he trained
Bunn in the “Expo” department, in which employees were
responsible for delivering food to dine-in customers and
keeping the store and the dining area clean. Bunn was able to
perform his duties in the Expo department with minimal
accommodation, and Johnson decided to schedule Bunn
exclusively in Expo. That meant Bunn’s position was different
from the position held by most of his hourly peers, as they
continued to rotate between departments while he stayed put.
But it did not mean that Bunn was given fewer hours. From the
time he was trained until the time he was suspended due to
insubordinate conduct towards a supervisor, Bunn was
scheduled full-time.
On November 17, 2010, night manager Norma Caballero
asked Bunn to put his cell phone away while working (Bunn
had been warned about using his phone during his shift on
multiple occasions). Bunn refused, and Caballero reported that
he gave her an “attitude” for the rest of the shift, including
shoving a trash can at her when she asked him to take out the
garbage. Caballero contacted Larry Johnson, and Bunn was
suspended for ten days. Bunn signed a written suspension
notice indicating that he understood why he was being
disciplined.
Bunn’s hours decreased following the suspension. In
December 2010, Bunn requested and received seven days off.
Khoury’s restaurants were also closed for the holidays, and on
occasion closed due to inclement weather. Bunn worked only
23.41 hours that month. In January 2011, after returning from
vacation, Bunn worked just 12.33 hours. It is undisputed that,
4 No. 13-2292
given the nature of a Dairy Queen franchise’s business,
Khoury’s restaurants saw decreased demand during the cold
weather months and adjusted many employee schedules
accordingly. On February 1, 2011, Bunn submitted his resigna-
tion. He told Johnson that he felt he could work more hours
with another employer; Johnson agreed.
After his resignation became effective, Bunn filed a timely
charge of discrimination with the Equal Employment Opportu-
nity Commission (“EEOC”). The EEOC declined to pursue the
charge and issued a right-to-sue letter. Bunn brought this
lawsuit alleging failure to accommodate his disability and
disparate treatment, both in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112. The district court
granted summary judgment in Khoury’s favor on all claims,
finding that no material facts were genuinely disputed and that
the undisputed facts entitled Khoury to a judgment as a matter
of law. Bunn appeals, and we affirm.
II. ANALYSIS
There are three issues before us on appeal: (1) whether the
district court erred by granting summary judgment before
Bunn had a chance to respond to a late-filed affidavit submit-
ted by the defendant; (2) whether the district court erred in
granting summary judgment to the defendant on Bunn’s
failure-to-accommodate claim; and (3) whether the district
court erred by granting summary judgment to the defendant
on Bunn’s disparate treatment claim. We affirm the district
court’s treatment of this case in all respects.
No. 13-2292 5
A. Bunn’s Procedural Argument
Bunn begins by complaining about the briefing schedule.
Khoury filed its motion and supporting brief for summary
judgment on February 1, 2013. The Larry Johnson “affidavit”
attached to those filings consisted of a signature page, and
nothing else. Nonetheless, Khoury’s brief relied heavily on
facts allegedly supplied by the missing body of that affidavit.
Bunn twice filed for extensions of time to respond to Khoury’s
motion for summary judgment, ultimately filing a response on
March 20, 2013. Bunn was aware of the deficiency in Khoury’s
filings at the time of his response; he noted it in his brief, but
“speculated” that the absence of the affidavit made little
difference. On April 30, 2013, the district court ordered Khoury
to file the missing pages, and Khoury complied on May 6, 2013.
On May 13, 2013, the district court granted Khoury’s motion
for summary judgment. Bunn believes it was an error for the
district court to fail to give him a separate, additional response
period in which to file a brief addressing the completed
Johnson affidavit. We disagree for two reasons.
The first reason is a legal one. Bunn’s argument, at its core,
attacks the district court’s application of its own local rules.
Local Rule 56.1(b) for the Southern District of Indiana affords
a litigant 28 days to respond to a “summary judgment mo-
tion.” Bunn was given 28 days (and then some) in which to
respond to Khoury’s motion. There is nothing in the plain
language of the rule concerning an additional 28-day response
period when one party is directed to correct a clerical error; the
rule only applies to a response to a “motion,” not to a misfiled
affidavit. The district court’s decision not to wait for a response
therefore rested on its interpretation of an ambiguity, or of an
6 No. 13-2292
area of no coverage, in the local rules. “[D]istrict courts have
considerable discretion in interpreting and applying their own
local rules.” Congregation of the Passion, Holy Cross Province v.
Touche, Ross & Co., 854 F.2d 219, 223 (7th Cir. 1988). We will
intrude on that discretion only where we are “convinced” the
district court made a mistake. Id. We cannot say we are
“convinced” the district court made a mistake in this case when
there is nothing at all in the rules to suggest that it did. What
we can say is that the district court made a discretionary call
concerning a matter not directly covered by the local or federal
rules, as it was perfectly entitled to do.
The second reason we find Bunn’s procedural argument
unpersuasive is a practical one. Bunn was not prejudiced in the
slightest by Khoury’s failure to attach the complete Johnson
affidavit to its motion for summary judgment. Every fact
derived therefrom on which Khoury intended to rely was cited
within its brief supporting the motion. Thus, even if Bunn
could not look at the affidavit itself, he was aware of its
contents and could have submitted contradictory evidence
with his response, if he had any. He was also free to bring the
matter to the district court’s attention at any time prior to his
long-delayed submission of a response brief. But he did not,
and, in his response brief, Bunn himself averred that the
missing affidavit made little difference. There is no legal or
equitable reason for us to reverse on these grounds.
B. Failure to Accommodate
Bunn asks us to review the district court’s adverse grant of
summary judgment on his failure to accommodate claim, a task
which we undertake de novo. Swetlik v. Crawford, 738 F.3d 818,
No. 13-2292 7
826 (7th Cir. 2013). Summary judgment is appropriate where
the admissible evidence shows that there is no genuine dispute
as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Lawson v.
CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001). A “material
fact” is one identified by the substantive law as affecting the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A “genuine issue” exists with respect to any such
material fact, and summary judgment is therefore inappropri-
ate, when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. On the other
hand, where the factual record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there
is nothing for a jury to do. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). In determining whether a
genuine issue of material fact exists, we view the record in the
light most favorable to the nonmoving party. Anderson, 477
U.S. at 255.
Bunn brought his claim under the Americans with Disabili-
ties Act. The ADA provides that a covered employer shall not
“discriminate against a qualified individual on the basis of
disability[.]” 42 U.S.C. § 12112(a). “Discrimination,” for the
purposes of Section 12112(a), includes “not making reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is an
applicant or employee” unless the employer “can demonstrate
that the accommodation would impose an undue hardship on
the operation of the business.” 42 U.S.C. § 12112(b)(5)(A).
8 No. 13-2292
We have derived a three-part test from the statutory
language. In order to establish a claim for failure to accommo-
date, a plaintiff must show that: (1) he is a qualified individual
with a disability; (2) the employer was aware of her disability;
and (3) the employer failed to reasonably accommodate the
disability. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th
Cir. 2005) (citing Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572
(7th Cir. 2001)). Khoury does not dispute that Bunn’s case
satisfies the first two prongs. But the district court granted
summary judgment to Khoury because Bunn’s case fails the
third prong: Khoury did reasonably accommodate Bunn’s
disability.
We agree with that conclusion. The term “reasonable
accommodation,” in the context of this case, means
“[m]odifications or adjustments to the work environment, or
to the manner or circumstances under which the position held
or desired is customarily performed, that enable [a qualified]
individual with a disability … to perform the essential func-
tions of that position[.]” 29 C.F.R. § 1630.2(o)(1)(ii). Particular
examples include “[m]aking existing facilities used by employ-
ees readily accessible to and usable by individuals with
disabilities[,]” as well as “[j]ob restructuring; part-time or
modified work schedules; reassignment to a vacant position;
acquisition or modifications of equipment or devices; appropri-
ate adjustment or modifications of examinations, training
materials, or policies; the provision of qualified readers or
interpreters; and other similar accommodations for individuals
with disabilities.” 29 C.F.R. § 1630.2(o)(2)(i)–(ii). Of course, that
list is not exhaustive. In the general sense, “an accommodation
is any change in the work environment or in the way things are
No. 13-2292 9
customarily done that enables an individual with a disability
to enjoy equal employment opportunities.” 29 C.F.R. pt. 1630
app. § 1630.2(o).
It is undisputed that, when it became clear that Bunn could
not perform the rotating duties of a regular hourly employee,
store manager Larry Johnson worked with him to determine
which job functions he could perform and which he could not.
Bunn was best able to perform the duties of an employee in the
Expo department. Accordingly, instead of rotating Bunn
through various departments, some of which were unsuitable
for him, Johnson instructed Bunn’s immediate supervisors to
schedule him exclusively in Expo. That “change … in the way
things [were] customarily done” enabled Bunn to enjoy equal
employment opportunities, as evidenced by the undisputed
fact that he was scheduled full-time in Expo from his hire date
until his suspension. 29 C.F.R. pt. 1630 app. § 1630.2(o). It
might also be called a “job restructuring,” or a “modified work
schedule.” 29 C.F.R. § 1630.2(o)(2)(ii). In short, it was exactly
the kind of accommodation envisioned by the regulations
applicable to the ADA.
That is the end of our inquiry; the undisputed facts show
that Khoury did what it was required to do by law. Bunn’s
only argument to the contrary is that he asked for additional,
or different, accommodations and was rebuffed. But even if we
credit his version of events—which we are obligated to do at
the summary judgment stage—that fact is not material. While
the EEOC regulations accompanying the ADA do suggest that
“it may be necessary for the [employer] to initiate an informal,
interactive process with the [employee]” to determine an
appropriate accommodation, 29 C.F.R. § 1630.2(o)(3) (emphasis
10 No. 13-2292
added), there is no separate cause of action for a failure of that
interactive process. In this area of the law, we are primarily
concerned with the ends, not the means: “Because the interac-
tive process is not an end in itself, it is not sufficient for [an
employee] to show that [an employer] failed to engage in an
interactive process or that it caused the interactive process to
break down.” Rehling v. City of Chicago, 207 F.3d 1009,
1015–1016 (7th Cir. 2000); see also Spurling v. C & M Fine Pack,
Inc., 739 F.3d 1055, 1059 n.1 (7th Cir. 2014). Ultimately, Khoury
did provide a reasonable accommodation to Bunn. Bunn’s
apparent displeasure with the way in which Khoury decided
on that accommodation, or with its failure to provide the exact
accommodation he would have preferred, is irrelevant. Id. at
1016 (“The ADA seeks to ensure that qualified individuals are
accommodated in the workplace, not to punish employers
who, despite their failure to engage in an interactive process,
have made reasonable accommodations.”). We affirm the
district court’s grant of summary judgment on Bunn’s failure-
to-accommodate claim.
C. Disparate Treatment
Finally, Bunn contests the district court’s adverse grant of
summary judgment on his disparate treatment claim. Once
again, we review de novo, mindful of the analytical rubric laid
out for us by Rule 56. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist.
No. 522, 657 F.3d 595, 600 (7th Cir. 2011). Once again, we affirm
the judgment of the district court.
1. Direct Method
A plaintiff claiming disparate treatment in violation of the
ADA can rely on two different methods of proof to survive a
No. 13-2292 11
summary judgment motion. Bunn relies on both. The first is
the “direct method,” in which a plaintiff must show that a
genuine issue of material fact exists with respect to each of the
three elements he will eventually be required to prove at trial:
(1) that the plaintiff is disabled within the meaning of the ADA;
(2) that the plaintiff is qualified to perform the essential
functions of the job with or without accommodation; and (3)
that the plaintiff has suffered an adverse employment action
because of his disability. Timmons v. Gen. Motors Corp., 469 F.3d
1122, 1127 (7th Cir. 2006).
Khoury concedes the first two prongs of the test, but
contests the third. In theory, the third prong—tying an adverse
employment action to a discriminatory animus—can be proved
with either direct or circumstantial evidence. Dickerson, 657
F.3d at 601. But direct evidence, which might take the form of
an admission of discriminatory intent by the relevant
decisionmaker within the defendant employer’s ranks, is
understandably rare in ADA cases. Most ADA plaintiffs
therefore rely on circumstantial evidence, which might include:
(1) suspicious timing; (2) ambiguous statements or
behavior towards other employees in the protected
group; (3) evidence, statistical or otherwise, that simi-
larly situated employees outside of the protected group
systematically receive better treatment; and (4) evidence
that the employer offered a pretextual reason for an
adverse employment action.
Id. (citing Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 586–87
(7th Cir. 2011); Burnell v. Gates Rubber Co., 647 F.3d 704, 708 (7th
Cir. 2011)).
12 No. 13-2292
Bunn, like most ADA plaintiffs, purports to rely on circum-
stantial evidence. But he presents none that is sufficient to
create a genuine issue of fact. Even if we assume that Khoury
subjected Bunn to an “adverse employment action”—an
assumption which is not clearly supported by the evidence of
record1—he has suggested only three items which he believes
will prove that such disparate treatment was due to his
disability.
The first is his contention that he was disciplined for
looking at his cell phone during his shift, while non-disabled
employees were permitted to do so. There is no evidence in the
record—not even in Bunn’s own affidavit—to support Bunn’s
contention that non-disabled employees were not disciplined
for similar conduct. Without any admissible evidence to
support Bunn’s claim, we cannot say there is a genuine
dispute.
The second is Bunn’s assertion that, when he asked Johnson
if certain accommodations could be made to allow Bunn to
work in departments other than Expo, Johnson rebuffed him,
saying something like, “I will place you wherever I want,”
without regard to sight restrictions. But it is undisputed that
Johnson was the store manager, and that scheduling all of his
employees—not just Bunn—wherever he wanted was a
1
The reduction in Bunn’s scheduled hours during the winter months
following his suspension is the “adverse employment action” of which he
complains, but it is difficult to parse out how much of that was due to his
own requests for time off and how much was due to employer-side
scheduling changes. Obviously, granting requested vacation days is not an
“adverse employment action.”
No. 13-2292 13
fundamental part of his job description. It is not evidence of
discrimination when a manager tells an employee, “Leave the
managing to me.” Furthermore, the undisputed evidence
shows that Johnson in fact scheduled Bunn in a position which
he could perform with minimal accommodation. Given that, it
is hard to see how a rational jury could consider Johnson’s
statement about scheduling discretion to be evidence of a
discriminatory animus. Johnson’s comment does not create a
triable issue.
The third is much like the second. Bunn claims that when
he asked Johnson to schedule him for more hours, Johnson told
Bunn he would schedule him for however many hours he saw
fit. Again, this is simply a manager exercising control over an
employee. There is no hint of disability discrimination in the
content or the context of the quote. We are typically very
cautious about relying on “stray remarks” as evidence of
discriminatory animus even where the content is arguably
discriminatory. See, e.g., Teruggi v. CIT Grp./Capital Fin., Inc.,
709 F.3d 654, 661 (7th Cir. 2013); Merillat v. Metal Spinners, Inc.,
470 F.3d 685, 694 (7th Cir. 2006). There is even more reason to
be cautious here, where the remarks in question do not single
out the plaintiff based on his disability or any other individu-
ally distinguishing characteristic.
In short, Bunn has not produced sufficient evidence to
create a triable issue of fact as to whether Khoury took an
adverse employment action against him because of his disabil-
ity. He therefore cannot rely on the direct method of proof to
survive summary judgment.
14 No. 13-2292
2. Indirect Method
The second method of proof available to an ADA plaintiff
hoping to survive summary judgment is the “indirect method,”
originally developed in the Title VII context by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and its multitudi-
nous progeny. The indirect method of proof, which exists only
to help plaintiffs survive summary judgment and falls away at
the trial stage, follows a burden-shifting approach. First, the
employee establishes a prima facie case by showing: (1) that he
is disabled under the ADA; (2) that he was meeting his em-
ployer’s legitimate expectations; (3) that he suffered an adverse
employment action; and (4) that similarly situated employees
without a disability were treated more favorably. Lloyd v.
Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009). If the
employee is able to establish a prima facie case, the burden
shifts to the employer to produce a legitimate, non-discrimina-
tory reason for the adverse employment action. Dickerson, 657
F.3d at 601 (citing Rooney v. Koch Air, LLC, 410 F.3d 376, 381
(7th Cir. 2005)). The employer’s burden in that regard is one of
production, not persuasion; the burden of persuasion remains
with the employee throughout the process. South v. Ill. Envtl.
Prot. Agency, 495 F.3d 747, 751–52 (7th Cir. 2007). Finally, if a
legitimate reason is produced, the employee must prove by a
preponderance of the evidence that the employer’s stated
reason is a lie. Dickerson, 657 F.3d at 601; Faas v. Sears, Roebuck
& Co., 532 F.3d 633, 642 (7th Cir. 2008) (“Pretext means a
dishonest explanation, a lie rather than an oddity or an error.”)
(internal quotation marks omitted).
No. 13-2292 15
Bunn fails the indirect method at every stage. First, Bunn
has not made out a prima facie case of discrimination. The
undisputed evidence shows that he did not meet his em-
ployer’s legitimate expectations. He missed an inordinate
amount of work in his first several months on the job, and he
shoved a trash can at the night manager, resulting in a suspen-
sion. He has also completely failed to identify, let alone
discuss, a similarly situated non-disabled employee who was
treated more favorably. That inquiry is too fact-intensive for us
to rely on conjecture alone. See, e.g, Raymond v. Ameritech Corp.,
442 F.3d 600, 610 (7th Cir. 2006); Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617–18 (7th Cir. 2000) (an employee is similarly
situated only where he is directly comparable in all material
aspects, including performance, qualifications, and conduct).
It is Bunn’s responsibility to identify a satisfactory comparator
to the court, and he has not done so. When an employee cannot
make out a prima facie case, that is the end of it; summary
judgment is warranted.
Second, even if Bunn could establish a prima facie case,
Khoury has met its burden of producing a legitimate reason for
the reduction in Bunn’s scheduled hours—several reasons, in
fact. Bunn’s hours were reduced during the winter months
following his suspension because of weather closings, vacation
days (which Bunn himself requested), and reduced demand for
Dairy Queen treats during the dead of winter. Bunn has not
introduced a single shred of evidence suggesting that these
explanations are lies, let alone evidence sufficient to meet the
preponderance standard. Dickerson, 657 F.3d at 601. There is no
genuine issue for trial.
16 No. 13-2292
In summary, we agree with the district court that Khoury
is entitled to summary judgment on Bunn’s disparate treat-
ment claim. Bunn has failed to create any triable issues of fact
through either the direct or the indirect method of proof, and
the undisputed facts entitle Khoury to judgment as a matter of
law.
III. CONCLUSION
Bunn’s procedural argument asks us to wrest away from
the district court its discretion to interpret and apply its own
local rules. We decline to do so. His failure-to-accommodate
claim fails because Khoury in fact provided a reasonable
accommodation, and his disparate treatment claim fails
because he has not produced sufficient evidence to create a
triable issue of fact under any method of proof. We AFFIRM
the judgment of the district court.