Jasmina Tucovic v. Wal-Mart Stores East, L.P., et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6523604-1] [6523604] [13-1751, 13-1752]

Case: 13-1751

Document: 42

Filed: 10/16/2013

Pages: 4

NONPRECEDENTIAL DISPOSITION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
Argued October 8, 2013
Decided October 16, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge

Nos. 13-1751 & 13-1752
JASMINA TUCOVIC,
Plaintiff-Appellant,

Appeals from the United States
District Court for the Northern District
of Indiana, Fort Wayne Division.

v.
WAL-MART STORES EAST, L.P., et al.,
Defendants-Appellees.

Nos. 1:09-cv-00148-JTM-RBC
1:10-cv-00386-JTM-RBC
James T. Moody,
Judge.

ORDER
Former Wal-Mart employee Jasmina Tucovic appeals the grant of summary judgment
against her in this employment discrimination suit. The district court granted Wal-Mart’s
motion for summary judgment after Tucovic failed to submit anything in response to the

Case: 13-1751

Nos. 13-1751 & 13-1752

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notice supplied by Wal-Mart setting forth the summary-judgment rules, her rights to file
affidavits or other materials in opposition to the motion, and the consequences of failing to
respond. Tucovic argues that the notice should have been issued by the court, not Wal-Mart.
We affirm.
Tucovic, who was born in Bosnia and Herzegovina, was hired at a Wal-Mart in Fort
Wayne to work in the store’s “Money Center,” a wing of the store where customers could cash
checks, pay bills, or load money onto a prepaid debit card. With the help of an attorney
recruited by the district court, she filed a complaint alleging (among other discriminatory acts)
that she was not allowed to take breaks as often as non-Bosnians and that she was told by a
supervisor that she needed to be shown how to use deodorant because she was Muslim and
smelled. When the store shut down the Money Center, she was assigned shifts as a cashier or
“greeter,” welcoming customers at the store’s entrance, while non-Bosnians who had worked
at the Center became customer service associates, helping customers return merchandise.
Tucovic also asserted that Wal-Mart violated the Family Medical Leave Act, 29 U.S.C.
§§ 2601–2654, when it retaliated against her for taking what she described as “medical leave,”
a two-week leave of absence at her doctor’s recommendation for an unspecified “serious
medical condition.” When she returned to her job, her hours had been cut and she had been
assigned shifts as a greeter rather than a customer service associate (her preferred position).
Tucovic sued Wal-Mart a second time, alleging that the company retaliated against her
for her prior suit by further reducing her hours and scheduling her for night shifts. She said
that she was forced to resign because her work environment was hostile, i.e., she was
“overloaded with work.” At the parties’ request, the district court consolidated the two cases.
After discovery concluded, Tucovic decided that she no longer wanted to be represented
by her recruited lawyer, who in turn withdrew. Tucovic told the court, however, that she
would not attend a scheduled conference unrepresented and did not want any further contact
with Wal-Mart’s attorneys because they were “unethical.” The court denied her request for
new counsel, explaining that the case involved straightforward claims of discrimination and
retaliation and, discovery having been completed, Tucovic was capable of litigating the case
herself.
Wal-Mart moved for summary judgment on the grounds that Tucovic had not established
a prima facie case of discrimination and (following our guidance in Lewis v. Faulkner, 689 F.2d
100 (7th Cir. 1982), and Timms v. Frank, 953 F.2d 281 (7th Cir. 1992)) informed Tucovic in
writing that she might lose the case if she did not respond. The notice, attached to the
summary-judgment motion and mailed to Tucovic’s address, also reproduced the text of
Federal Rule of Civil Procedure 56. When the deadline for a response passed without word

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from Tucovic, Wal-Mart says that it called her four times and left messages. Wal-Mart then
asked the district court to rule summarily on the motion; Tucovic was also served with this
filing by mail.
Nine months later, the district court granted summary judgment for Wal-Mart. The court
accepted Wal-Mart’s version of the facts as undisputed because Tucovic had failed to respond.
Agreeing with the company’s analysis, the court found no evidence of mistreatment severe
enough to amount to an adverse employment action (the deodorant comment being barred by
the statute of limitations because it was made so long ago) or any disparate treatment. Further,
the court said, Wal-Mart had shown that its actions were motivated by nondiscriminatory
reasons, such as scheduling logistics (Tucovic refused to work nights and Wal-Mart employees
had to manually enter her shifts into the otherwise-automated computer program for
scheduling).
On appeal Tucovic contends that, even though Wal-Mart sent the required notice, the
district court bore the ultimate responsibility of ensuring that she understood the
consequences of not complying with Rule 56. Tucovic asserts that she had been an active
litigant up until her failure to respond to the summary-judgment motion, so the district court
should have realized that Wal-Mart’s notice was inadequate—that she must have either not
received it or disregarded it, given her stated desire to avoid Wal-Mart’s attorneys.
Lewis and Timms hold that pro se plaintiffs must be notified in a short and plain statement
that any factual assertion in evidentiary materials supporting the summary-judgment motion
will be accepted as true unless the plaintiffs respond with their own evidence contradicting
the assertion; this notice should also include the text of Rule 56. Lewis, 689 F.2d at 102; Timms,
953 F.2d at 285. That is precisely what Wal-Mart sent Tucovic; she does not dispute the
adequacy of the notice’s contents. Because district courts already are overburdened, Lewis and
Timms require them to provide this notice only when counsel for the moving party fails to
attach it to the summary-judgment motion. Lewis, 689 F.2d at 103; Timms, 953 F.2d at 285;
see also Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012); Renchenski v. Williams, 622 F.3d 315,
340–41 (3d Cir. 2010). District courts are not required, as Tucovic suggests, to supplement
notice provided by counsel. See Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc);
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Tucovic points to no authority, and we could
find none, supporting the proposition that distrust between the parties requires the district
court to step in and independently supply notice.
At all events, lack of notice does not warrant reversal if the plaintiff still would have been
unable to avoid summary judgment even with notice. Timms, 953 F.2d at 287. Tucovic asserts

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that if she wins her appeal, “it is entirely possible” that she will produce “additional evidence,”
but it would be inappropriate to now specify that evidence, since nothing at this point can be
added to the appellate record. Tucovic has failed to identify any evidence she would have
produced to dispute Wal-Mart’s version of events.
AFFIRMED.