DONALD A. MILLER & JOHN W. MCGUIRE, Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY & DONALD BONDS, Defendants-Appellees.
No. 20-3005
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 27, 2021 — DECIDED DECEMBER 17, 2021
Before MANION, WOOD, and BRENNAN, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-00806 — Sharon Johnson Coleman, Judge.
During the period relevant to this suit, Miller was one of four general managers overseeing bus maintenance at CTA. He reported to McGuire, CTA‘s mechanical officer for bus maintenance. McGuire in turn reported to Bonds, CTA‘s vice president of vehicle maintenance. Miller and McGuire are Caucasian; Bonds is African American.
CTA began receiving several complaints in spring of 2016 regarding “hot buses” in which the cooling systems were not working properly. Despite declarations from general managers that preparations for the summer heat had been completed on 90% of CTA‘s bus fleet, extensive problems persisted. On one day in early June, 18 of the 25 reported bus cooling issues originated in a garage that Miller managed.
The continuing problems garnered the attention of CTA‘s president, whose office held numerous meetings on the issue. McGuire took part in at least some of these meetings, and on six occasions Bonds discussed with McGuire concerns raised by the president and his staff.
On July 5 or 6, 2016, Bonds met with other members of CTA upper management, and a decision was made to discharge both Miller and McGuire. Even before the problems
Shortly before that July 6 meeting, McGuire and Miller separately contacted Rita Kapadia, the senior manager of CTA‘s Equal Employment Opportunity (EEO) Programs. On June 28, McGuire complained to her of racially discriminatory treatment by Bonds. On July 5, Miller told Kapadia that he was being “targeted” by Bonds, though he did not ascribe a racial motivation to this targeting. Using her email program, Kapadia set an interview with McGuire for 10 a.m. on July 7 and with Miller for one hour later. However, on the morning of July 7, before either met with Kapadia, Miller and McGuire were called to separate meetings with Bonds, who offered them the choice of resigning or being discharged. McGuire took the former route, Miller the latter. (For purposes of this appeal, we draw no distinction between the manners of their departure.)
Miller and McGuire sued CTA and Bonds under
Following discovery, on October 4, 2019, CTA and Bonds filed their motion for summary judgment and supporting memorandum of law. By prior order of the district court, any response to the motion was due by November 4. But when the due date arrived, Miller and McGuire asked for a 14-day extension based on their counsel‘s work schedule. The unopposed extension was granted. Two weeks later, they were granted another unopposed 14-day extension, again premised on their attorney‘s work schedule. The second fortnight extension ended on December 2 without a response, though a few weeks after that Miller and McGuire did contact the clerk‘s office to set a trial date. CTA and Bonds filed a reply in support of summary judgment on January 8, 2020.
This time, the extension motion was opposed, and the district court held a hearing on the matter. The court concluded that Miller and McGuire had not offered adequate reasons for neglecting the twice-revised deadline or for failing to seek an extension in a timely fashion. Accordingly, under Local Rule 56.1, the court deemed Miller and McGuire to have conceded the absence of a material factual dispute and proceeded to consider the summary-judgment motion without a response.
After construing the facts in the light most favorable to Miller and McGuire, the district court concluded that they had failed to establish prima facie cases for discrimination or retaliation and that Bonds was entitled to qualified immunity. This appeal followed.
We begin with the procedural issue. A district court may, for good cause, extend a party‘s time to respond to a motion; it may do so even after the time has expired if the party‘s failure to respond was due to “excusable neglect.” See
In determining whether a missed deadline should be excused, a court considers “all relevant circumstances surrounding the party‘s neglect.” Bowman v. Korte, 962 F.3d 995, 998 (7th Cir. 2020). Such circumstances include “the danger of prejudice to the [nonmoving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993); see United States v. Cates, 716 F.3d 445, 448 (7th Cir. 2013) (”Pioneer applies whenever ‘excusable neglect’ appears in the federal procedural rules.“).
Miller and McGuire contend that, under the Pioneer factors, the district court should have granted them a third extension. On the facts before us, however, the district court was well within its discretion to deny the request.
Although the proffered reasons for delay are not the decisive consideration, see United States v. Brown, 133 F.3d 993, 997 (7th Cir. 1998) (”Pioneer makes clear that the standard is a balancing test, meaning that a delay might be excused even where the reasons for the delay are not particularly compelling.“), in a particular case they can be “immensely persuasive” in determining whether neglect was excusable, In re Kmart Corp., 381 F.3d 709, 715 (7th Cir. 2004).
Counsel next cited health problems as a reason for missing the deadline, but his proffers—both in the motion for extension and at the hearing—were so vague as to be worthless. Understandably, counsel may have wished to avoid public disclosure of certain medical details, but it was his burden to provide the district court sufficient information “to demonstrate that his illness was of such a magnitude that he could not, at a minimum, request an extension of time to file his response.” Keeton v. Morningstar, Inc., 667 F.3d 877, 883 (7th Cir. 2012); see also Acosta v. DT & C Global Mgmt., LLC, 874 F.3d 557, 560–61 (7th Cir. 2017) (upholding rejection of a “health problems” excuse, given the “lack of corroborating information“). Surely had counsel timely advised the district court of health issues and sought to provide relevant information in a confidential manner, the court would have seriously considered his situation.
Finally, counsel asserted that the sudden need to relocate his office impeded his ability to respond to the summary-judgment motion or to file a timely motion for extension. Yet in Pioneer itself, the Supreme Court gave “little weight to the fact that counsel was experiencing upheaval in his law practice.” 507 U.S. at 398. We agree with other courts that have found impediments or confusion stemming from office relocations generally not to be persuasive excuses for neglecting
Nor do the remaining Pioneer factors indicate that the district court abused its discretion. Regarding good faith, “it is not difficult to imagine stronger showings.” In re Kmart Corp., 381 F.3d at 716 (brackets omitted). Counsel had received multiple extensions to file a summary judgment response. Yet when the December 2 due date arrived, he submitted nothing. As the district court noted in its order, until mid-January, counsel “made no attempt to address his failure to act,” even though in the interim he contacted the court “to set a trial date and schedule pretrial deadlines.” Waiting six weeks to seek an extension of a missed deadline does not evidence a good faith effort to cure one‘s neglect.
Moreover, the potential prejudice to CTA and Bonds was at best a neutral consideration and certainly not a favorable one, as Miller and McGuire argue. See Defs.’ Br. at 26–27 (asserting burdens that the defendants would bear if opposing counsel‘s neglect of the deadline were excused). The defendants had already submitted a reply in connection with their summary-judgment motion and detailed in writing for the district court the problems that would result from a further extension for the plaintiffs at that late date.
In sum, because the Pioneer factors are either neutral or weigh against a finding of excusable neglect, the district court did not abuse its discretion in denying the untimely third motion to extend the deadline to file a summary judgment response. The district court was within its rights to treat the statement of material facts in the summary judgment motion as undisputed and to consider the motion‘s arguments. Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021). Now, on to the merits.
Summary judgment is appropriate when the facts of record, taken in the light most favorable to the nonmoving par
The district court concluded that the racial discrimination claims failed because the undisputed evidence showed that CTA had legitimate (nonracial) reasons for terminating Miller and McGuire‘s employment and that these reasons were not pretextual. The appellants’ opening brief raises no challenge to the district court‘s discrimination ruling. Rather, the brief confines its substantive arguments to the issue of retaliation and seeks reinstatement only of those counts. Because “arguments not raised in an opening brief are waived,” Tuduj v. Newbold, 958 F.3d 576, 579 (7th Cir. 2020), we accept the district court‘s unchallenged conclusion that the firing of Miller and McGuire was not racially motivated.
That leaves only their claims that they were discharged in retaliation for filing EEO complaints about Bonds (regardless of the merits of those complaints). To make out a prima facie case for retaliation under Title VII, a plaintiff must show that a reasonable jury could find that (1) he engaged in statutorily protected activity; (2) his employer took a materially adverse action against him; and (3) the adverse action was caused by the protected activity.2 Smith v. Ill. Dep‘t of Transp., 936 F.3d 554, 559–60 (7th Cir. 2019) (Barrett, J.).
Nor could a reasonable jury have concluded that Miller and McGuire‘s EEO complaints about Bonds were the cause of their being discharged. There was simply no evidence that Bonds knew of those complaints. Miller and McGuire testified that they did not tell Bonds (or anyone else) about the complaints. Bonds testified that he did not know Miller or McGuire had complained about him to Kapadia when he fired them in July 2016. And Kapadia testified that she did not tell Bonds about the complaints until August 2016 and that Bonds did not have access to her email program records.
Miller and McGuire stake their appeal entirely on timing. They contend that the most favorable construction of the evidence is that Bonds‘s meeting with other CTA upper management—in which it was decided to fire Miller and McGuire—occurred on July 6, after both Miller and McGuire had submitted their EEO complaints to Kapadia and after Kapadia had scheduled to meet with them on July 7. The
Even in circumstances where “an adverse employment action follow[ing] close on the heels of protected expression” could be prima facie evidence of causation in a retaliation claim, a plaintiff must first establish “that the person who decided to impose the adverse action knew of the protected conduct.” Lalvani v. Cook County, 269 F.3d 785, 790 (7th Cir. 2001). “Suspicious timing is rarely enough to create a triable issue. As a threshold matter, the plaintiff must show that the defendant was aware of the protected conduct.” Khungar v. Access Cmty. Health Network, 985 F.3d 565, 578 (7th Cir. 2021) (quotation marks and citation omitted). Here, Miller and McGuire could not avoid summary judgment based on suspicious timing alone unless, “[a]t minimum,” they first produced evidence supporting a reasonable inference that Bonds knew of their EEO complaints. Id. As discussed above, they did not. Thus, summary judgment was appropriate.
The judgment of the district court is AFFIRMED.