Wallace Arnold v. Visiontek Products, LLC ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 14, 2019*
Decided January 15, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-2647
WALLACE ARNOLD, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 13 CV 00613
VISIONTEK PRODUCTS, LLC,
Defendant-Appellee. Andrea R. Wood,
Judge.
ORDER
Wallace Arnold sued Visiontek Products, LLC, his former employer, asserting
that he was subjected to a hostile work environment based on his race and that he was
later terminated in retaliation for complaining of racial discrimination, all in violation of
42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 to
*We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. CIV. P. 34(a)(2)(C).
No. 17-2647 Page 2
2000e-3. The district court entered summary judgment in favor of Visiontek, and we
affirm.
Many facts in this case are contested, but on appeal we recount the facts in the
light most favorable to Arnold, the opponent of summary judgment. See Giles v. Tobeck,
895 F.3d 510, 512 (7th Cir. 2018). Beginning in 2006, Arnold worked as a member of
Visiontek’s production team, which required him to pack and ship boxes of products
from Visiontek’s warehouse to customers. His immediate supervisor was Wendell
Calip, Visiontek’s Vice President of Operations.
In August 2010, Visiontek’s President and Chief Operating Officer, Michael
Innes, sent an email to many of Visiontek’s employees, including Calip, directing
warehouse employees to enter and leave through the building’s rear door. Arnold, who
does not have an email address, never received that email, and he asserts that he never
was made aware of Innes’s instructions. Arnold’s coworkers, however, testified that
they were told to use the rear door and that they used the rear door exclusively to enter
and leave the warehouse until Arnold was fired. For his part, Arnold asserted that he
was “singled out” as the only employee who was required to use the rear entrance.
Visiontek’s first complaint with Arnold’s performance is reflected in an email
that Innes sent Calip in February 2011. In it, Innes describes an after-hours
confrontation that broke out when Arnold tried to tell a temporary worker in the
warehouse how to perform his job duties. Arnold maintains that he was simply alerting
the worker to a safety concern, but the worker “snapped” and caused a scene. Innes
also recounts a confrontation between Arnold and another coworker, Jeff Anderson,
after Arnold propositioned a female employee of another company that shared
warehouse space with Visiontek. According to Innes, Arnold left work angry and
showed up late to work the next day. Arnold disputes this account, maintaining that the
female worker gave him a ride to his bus stop one day and he tried to show his
appreciation by bringing her breakfast and a flower. He denies confronting Anderson,
though he admits being late for work the next day.
Arnold received two disciplinary notices from Visiontek. The first was in
response to his confrontation with Anderson: The notice states that Arnold made
“negative verbal comments toward another employee” and warns Arnold that he could
be subject to dismissal if his behavior did not improve. The second addressed his
tardiness: The notice instructs him to call his supervisor if he was going to arrive late.
Even though both notices bear Arnold’s signature, he swore in an affidavit opposing
Visiontek’s motion for summary judgment that he was “never presented with the
No. 17-2647 Page 3
notice[s], never given the opportunity to review, understand or acknowledge the
notice[s], and was not aware [they were] placed in my personnel file.”
In early 2012, Arnold became involved with the Occupy Wall Street movement
and protesting the death of Trayvon Martin. In support of those movements, Arnold
brought protest signs—seen by his coworkers and Innes—to work, including signs that
Arnold admits included vulgar and inappropriate language. Arnold’s coworkers
testified that he would make signs using Visontek materials when he was supposed to
be working, and that his sign-making activity affected his productivity. Arnold’s
coworkers said they resented having to do more work to make up for his inefficiency,
which caused “bottlenecks” on the production line. Arnold denies that he ever made
signs when he was supposed to be working or that his productivity suffered.
After seeing one of Arnold’s signs, Calip issued Arnold a third disciplinary
notice in March 2012. In this notice, Calip asks Arnold to take down his signs because
they were not appropriate in the workplace. Arnold responded by stating that Calip
was “violating his civil rights.” Calip then reiterated “that the workplace is not a place
to display such signage.” The notice then warns Arnold not to display his signs in the
workplace or he could be fired. Arnold agrees that Calip spoke to him around this time
about displaying signs in the workplace, but he asserts that he never received this
disciplinary notice, which is unsigned.
After that incident, Arnold maintains, he stopped making protest signs at work
and kept all his signs out of sight. Shortly thereafter, he says, he stopped bringing signs
to work altogether. But Calip and Arnold’s coworkers say that Arnold continued to
bring signs to work, and Arnold himself testified in his deposition that he was still
bringing signs to work in July 2012. It was at that point that Calip had another
discussion with Arnold about the signs, and Arnold accused Calip during that
conversation of violating his “constitutional and civil rights.”
Visiontek fired Arnold in August 2012. The notice of separation states that
Arnold failed to be a “team member,” caused friction with his coworkers, and worked
at a “slow pace when we were busy causing bottlenecks during peak shipping hours.”
Arnold sued, alleging that Visiontek violated Title VII and 42 U.S.C. § 1981 by
creating a hostile work environment and by retaliating against him for complaining
about the discrimination. Specifically, he asserted that Calip created a hostile work
environment by (1) forcing him alone to use the back door to the warehouse,
(2) assigning him “impossible” tasks that his coworkers did not have to complete, and
No. 17-2647 Page 4
(3) keeping a secret disciplinary file on him—a reference to the disciplinary notices that
Arnold says he signed but never reviewed. He also asserted that his termination was
retaliation for his complaints in March 2012 and July 2012 that Calip was violating his
civil rights.
The district judge entered summary judgment for Visiontek. She reasoned that
Arnold’s Title VII claims failed because he had admitted that they were untimely. As
for his § 1981 claims, Arnold could not show that he was treated differently because of
his race, so he could not establish that his work environment was racially hostile. And
Arnold lacked evidence that his complaints to Calip of discrimination were connected
to his termination, she concluded, so he had not shown retaliation.
On appeal, Arnold generally contests the district court’s entry of summary
judgment against him. But the district court’s analysis was correct. Arnold’s Title VII
claims were untimely because he admitted that he did not file suit within 90 days of
receiving the EEOC’s right to sue letter. See 42 U.S.C. § 2000e-5(f)(1); Averhart v. Sheriff of
Cook Cty., 752 F.3d 1104, 1106 (7th Cir. 2014). Arnold also has not shown he was
subjected to a racially hostile work environment because he lacks evidence that Calip’s
allegedly discriminatory actions “had a racial character or purpose.” Yancick v. Hanna
Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011); see also Cole v. Bd. of Trs. of N. Ill. Univ.,
838 F.3d 888, 896–97 (7th Cir. 2016). Arnold could not identify a single “impossible” task
that Calip assigned to him, his coworkers testified that they, too, used the back door,
and there is no evidence that the disciplinary action in this case was racially motivated.
Regarding his retaliation claim, the judge correctly explained that Arnold has not
shown that Visiontek’s desire to retaliate against him for his complaints was the but-for
cause of his firing. See Robinson v. Perales, 894 F.3d 818, 830 (7th Cir. 2018) (citing Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)). There is no direct evidence of
retaliatory motive, and the only circumstantial evidence is that Visiontek fired Arnold
about one month after Arnold told Calip he was violating his “constitutional and civil
rights.” That timing, alone, is not sufficiently suspicious to create an inference of
retaliation. See O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011); see also
Kidwell v. Eisenhauer, 679 F.3d 957, 966–67 (7th Cir. 2012) (five weeks between protected
activity and adverse action insufficient in § 1983 suit). Moreover, Visiontek presented
legitimate, non-retaliatory reasons for Arnold’s termination, and Arnold cannot show
that those reasons were mere pretext. See Burton v. Bd. of Regents of Univ. of Wis. Sys.,
851 F.3d 690, 697 (7th Cir. 2017). Arnold protests that we should consider his age and
other “mitigating circumstances” in evaluating this claim. But that contention asserts
No. 17-2647 Page 5
that Visiontek’s decision to fire him was flawed, not that it was a pretext for a
retaliatory motive. See Liu v. Cook Cty., 817 F.3d 307, 316 (7th Cir. 2016).
We have considered Arnold’s other contentions, but none merits discussion. The
judgment of the district court is AFFIRMED.