Horace Townsend v. Anne Herlehy , 618 F. App'x 861 ( 2015 )

NONPRECEDENTIAL DISPOSITION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 October 20, 2015*
Decided October 20, 2015
Before
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-1399
HORACE TOWNSEND, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 13 C 1881
ANNE MARIE HERLEHY and ALEXIAN
BROTHERS MEDICAL CENTER, Amy J. St. Eve,
Defendants-Appellees. Judge.
ORDER
Horace Townsend appeals the denial of his postjudgment motion to set aside the
summary judgment against him in this employment-discrimination suit. We affirm.
After being passed over for several surgical-technologist positions, Townsend, an
African-American man, sued Alexian Brothers Medical Center and one of its
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1399 Page 2
administrators, Anne Marie Herlehy, under 42 U.S.C. § 1981 and Title VII of the Civil
Rights Act of 1964. The district court found that Townsend failed to establish a prima
facie case of discrimination and retaliation, and entered summary judgment for
defendants.
A week later Townsend filed successive motions under Federal Rule of Civil
Procedure 59(e), repeating arguments made at summary judgment and arguing that the
judgment should be set aside because defendants had failed to respond to all of his
claims. The district court denied the motions.
We affirmed the district court’s judgment six months later, concluding that
Townsend failed to present any developed appellate claim for review. See Townsend v.
Alexian Bros. Med. Ctr., 589 F. App’x. 338 (7th Cir. 2015).
Three weeks later, Townsend moved the district court to set aside the judgment
under Rule 60(b)(3) due to opposing counsel’s supposed “fraud” in deliberately failing
to serve him with three of defendants’ summary judgment submissions. Townsend said
that he did not learn of counsel’s misconduct until two days after the district court
entered judgment against him. The district court denied the motion, concluding that the
seven months Townsend took to bring it was not “within a reasonable time,” FED. R. CIV.
P. 60(c)(1). The court added that the motion was unsubstantiated.
On appeal Townsend argues that the district court erred in finding that he waited
seven months to complain about counsel’s misconduct. He contends that he actually
brought the issue to the court’s attention in his Rule 59(e) motions, which were filed a
week after the court entered its judgment. But Townsend mischaracterizes the contents
of his Rule 59(e) motions; those motions did not mention any charge of misconduct.
Townsend also has not shown that the district court abused its discretion in finding that
the seven months he took to file his motion was unreasonable for purposes of Rule 60(b),
see Berwick Grain Co. v. Illinois Dep’t of Agric., 189 F.3d 556, 560 (7th Cir. 1999), or that he
failed to provide clear and convincing evidence of fraud, as Rule 60(b)(3) requires,
see Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010).
Accordingly, the judgment of the district court is AFFIRMED. Defendants’
motion for sanctions is DENIED. Townsend is warned that further pursuit of this
litigation would be frivolous and result in sanctions, including monetary sanctions.
See Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).