David Penny v. Lincoln's Challenge Academy ( 2020 )

NONPRECEDENTIAL DISPOSITION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 August 26, 2020*
Decided August 27, 2020
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-3168
DAVID H. PENNY, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 17-cv-2232
LINCOLN’S CHALLENGE ACADEMY, Colin S. Bruce,
Defendant-Appellee. Judge.
ORDER
Claiming that his employer fired him because he opposed an act of disability
discrimination against a coworker, David Penny sued for retaliation under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203. The district court entered
summary judgment for the employer, explaining that Penny lacked evidence of a causal
connection between his opposition and his termination. We see no error in that ruling,
so we affirm the judgment.
* We have agreed to decide this case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-3168 Page 2
For reasons we explain below, we draw the facts from the defendant’s
evidentiary submissions, viewed in the light most favorable to Penny. See McCurry v.
Kenco Logistics Servs., LLC, 942 F.3d 783, 788 (7th Cir. 2019). Penny held various
positions at Lincoln’s Challenge Academy, a reform school run by the Illinois
Department of Military Affairs, from 2003 to 2017. In June 2015, when he was a
“Commandant,” the Academy did not renew contracts for several workers, including
Jim Hart. Penny asked the academy’s director, Peter Thomas, and the deputy director at
the time why Hart’s contract was not being renewed; he was told: “Because he’s out a
lot, he’s sick a lot, he’s got a lot of medical problems.” Penny responded, “you really
can’t do that,” and “I don’t think that’s right and I don’t think we should be doing that.”
In August, Penny sent the human resources department a memo describing a phone call
in which Hart “attempt[ed] to elicit information regarding the reason for his non-
renewal.” Penny “reminded” Hart that he “was not the one who recommended his
nonrenewal” and said that whatever the director told him “[was] the reason.” In his
deposition, Penny testified that two employees from the human resources department
later told him that it was “in [his] best interest” to “make that memo disappear.” Penny
had “no idea” why human resources “wanted the whole thing gone.”
Penny further testified that, after Hart’s non-renewal, he experienced a “lot of
tension” at work and had “some friction” with Director Thomas. As he stated at his
deposition, he “[couldn’t] go ten days without getting accused of some racism or
something-ism,” and his work environment became “pretty hostile.” And after Penny
had knee surgery, Thomas told him that he was not allowed to return to work until he
was fully healed, even though, according to Penny, the Academy had accommodated
others in the department with medical restrictions.
At the end of 2015, Penny became the Recruitment, Placement, and Mentorship
Coordinator, even though he “didn’t apply for [the position] and didn’t want it.” But he
was told that taking it would be “in [his] best interest,” which, as Penny later testified,
he understood as a veiled threat about his future at the Academy.
About six months later, in June 2017, the Academy terminated Penny’s contract.
His supervisor, Deputy Director Michael Haerr (who started working at the Academy
in late 2016), had recommended the termination. As Thomas explained in a memo,
Penny was being let go for “substandard performance,” specifically his “inability to …
meet Academy recruiting goals.” According to Penny’s deposition testimony, his
superiors had imposed goals that they knew “could not be met.”
No. 19-3168 Page 3
Penny sued the Academy for retaliation in violation of the ADA (and other
claims that he does not pursue on appeal). Specifically, he alleged that the Academy
terminated his contract because he had opposed Hart’s non-renewal, which he saw as
an act of disability discrimination. He asserted that he was “coerc[ed] into accepting” a
lower status position and that his superiors purposefully set “unachievable”
performance goals “to give them an excuse to terminate [him].”
After discovery, the Academy moved for summary judgment. It listed ten
“undisputed material facts” and argued that, based on these facts, Penny could not
establish a prima facie case of retaliation under the ADA. In his response, Penny argued
that he had met his burden and that, in any event, Federal Rule of Civil Procedure 56 is
unconstitutional because it violates the right to a jury trial. In a section labeled
“disputed material facts,” he responded to six of the Academy’s proffered facts. For the
most part, his responses add only minor clarifications or challenge the facts’ legal
significance, rather than the fact itself. Despite attaching 114 pages of exhibits, Penny
included only one citation to record evidence in his “disputed material facts” section.
The district court granted the Academy’s motion for summary judgment. The
court first stated that it drew most of the facts from the Academy’s statement of
undisputed material facts because Penny’s response failed to comply with Central
District of Illinois Local Rule 7.1(D)(2). That rule provides, in relevant part, that each
claim of disputed material fact and each additional material fact must be “supported by
evidentiary documentation referenced by specific page.” C.D. ILL. R. 7.1(D)(2)(b)(2), (5).
Penny’s response included only a section of “disputed material facts,” with no citations.
And although he incorporated new facts into his argument, he did not list them in a
separate fact section or cite any evidentiary support, as required. Considering the
“adequately supported” material facts only, the court concluded that Penny did not
have evidence of a causal connection between a protected activity and his termination.
It explained, in part, that Penny had “no evidence” that Haerr knew anything about his
opposition to Hart’s non-renewal, adding that Haerr did not even work at the Academy
at the time of Penny’s protected activity. The court also rejected his challenge to Rule 56.
On appeal, Penny first challenges the district court’s ruling that he failed to
comply with the local rules, a decision that we review for abuse of discretion only.
See Hinterberger v. City of Indianapolis, 966 F.3d 523, 528 (7th Cir. 2020). Citing an earlier
version of Local Rule 7.1(D) that exempted pro se litigants from its requirements,
see C.D. ILL. R. 7.1(D)(6) (2010) (amended 2013), Penny argues that his failure to adhere
to the rule was “unintended and accidental” and that he is “at worst guilty of excusable
No. 19-3168 Page 4
neglect.” The current rule, however, does not contain a pro se exemption; it states only
that “Local Rule 7.1(D) does not apply to social security appeals or any other case upon
the showing of good cause.” C.D. ILL. R. 7.1(D)(2)(b)(6) (2017). Here, Penny did not
show (or try to show) good cause to excuse his noncompliance. In his reply brief, he
implies that pro se status itself constitutes “good cause,” but it does not. We have
repeatedly recognized that “district courts may require strict compliance with their
local rules,” Hinterberger, 966 F.3d at 528, and have specifically approved of a court’s
strict enforcement of Rule 7.1(D) against a pro se litigant, see McCurry, 942 F.3d at 787
n.2. The district court did not abuse its discretion in doing so here.
Penny next challenges the entry of summary judgment for the Academy on his
retaliation claim. Although we rely on the Academy’s statement of undisputed material
facts, we still view those facts in the light most favorable to Penny and review the
district court’s ruling de novo. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006).
To survive summary judgment, Penny needed evidence that: (1) he engaged in a
statutorily protected activity; (2) he suffered an adverse action; and (3) there is a “but
for” causal connection between the two. Rowlands v. United Parcel Serv. – Fort Wayne,
901 F.3d 792, 801 (7th Cir. 2018). Only the third element is at issue here. One way to
demonstrate it is “by showing that the stated reasons for the firing were pretextual.”
Graham v. Arctic Zone Iceplex, LLC, 930 F.3d 926, 929 (7th Cir. 2019).
Penny raises two principal arguments on this point. First, he contends that
Haerr’s lack of knowledge about his protected activity is irrelevant because Director
Thomas made the ultimate termination decision, and Thomas had a “longstanding
vendetta” against him. Even if we accepted this assertion (which Penny did not
substantiate), Penny has not identified evidence that Thomas terminated his contract
because of his opposition to Hart’s non-renewal two years earlier, rather than his
admitted failure to meet performance goals. See Ortiz v. Werner Enters., Inc., 834 F.3d
760, 765 (7th Cir. 2016). Penny asserts that these goals were set unrealistically high, but
he does not point to any evidence that would support an inference that the reason given
for his termination—his supervisor’s recommendation based on his performance—was
“phony.” Graham, 930 F.3d at 929. And even if Thomas disliked Penny, as he says, there
is no evidence connecting that personal animus with Penny’s protected activity.
Second, Penny argues that the Academy “never prove[d] the absence of a
genuine issue of fact” and thus was not entitled to summary judgment. But Penny
misconceives the burdens of production. At summary judgment, “a party must show
what evidence it has that would convince a trier of fact to accept its version of events.”
No. 19-3168 Page 5
Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020) (quoting Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)). That applies to both parties, not
just the movant. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (explaining
burden on nonmoving party); Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922
(7th Cir. 2012) (noting “nonmovant must present definite, competent evidence in
rebuttal” to defeat summary judgment). Penny contends that he would have made this
showing through witness testimony at trial and that he did not take any depositions to
present this testimony earlier “due to time and cost.” But a party cannot defeat
summary judgment with promises to furnish evidence down the line.
Penny alternatively argues that he is entitled to remand on the ground that
summary judgment procedures violate the Seventh Amendment’s guarantee of a jury
trial. He acknowledges that we previously rejected that argument, see, e.g., Burks v. Wis.
Dep’t of Transp., 464 F.3d 744, 759 (7th Cir. 2006), but urges us to reconsider. We see no
compelling reason to do so. See Koski v. Standex Int’l Corp., 307 F.3d 672, 676 (7th Cir.
2002) (“[A]rguing that Rule 56 … violates the Seventh Amendment … flies in the face of
firmly established law.”). Because Rule 56 is consistent with the Constitution, we must
reject his additional argument that, in promulgating it, the judicial branch exceeded the
authority delegated to it by Congress under the Rules Enabling Act, 28 U.S.C. § 2072.
We have considered Penny’s other arguments, and none has merit.
AFFIRMED