Jeremy Dixon v. Cameron Kerry
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and John Daniel Tinder, Circuit Judge. [6561439-1] [6561439] [13-2327]
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NONPRECEDENTIAL DISPOSITION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 March 19, 2014*
Decided March 21, 2014
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐2327
JEREMY B. DIXON,
Plaintiff‐Appellant,
Appeal from the United States District
Court for the Southern District of Indiana,
New Albany Division.
v.
No. 4:10‐cv‐00072‐SEB‐WGH
PENNY PRITZKER,
Secretary of Commerce,
Defendant‐Appellee.
*
Sarah Evans Barker,
Judge.
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Therefore the appeal is submitted on the briefs and the
record. See FED. R. APP. P. 34(a)(2)(C).
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O R D E R
Jeremy Dixon appeals from an adverse decision at summary judgment in this action
claiming that he was fired from his job at the United States Department of Commerce
because of his sex and a congenital spinal disorder. The district court concluded that Dixon
lacked evidence to establish a prima facie case of sex discrimination and had failed to
exhaust his claim of disability discrimination. We affirm the judgment.
The following facts are recounted in the light most favorable to Dixon. See Chaib v.
Indiana, No. 13‐1680, 2014 WL 685274, at *4 (7th Cir. Feb. 24, 2014). In September 2005
the Department hired Dixon as a part‐time statistical clerk for the Census Bureau’s
National Processing Center in Jeffersonville, Indiana. Dixon conducted phone
interviews to collect statistical data for various surveys. His employment was subject to
the satisfactory completion of a one‐year probationary period, see 5 C.F.R. §§ 315.803,
315.804(b), during which the Department could fire him if it found him not fit or
qualified for continued employment. 5 C.F.R. § 315.804(a). Counseling is not required.
During orientation Dixon received copies of the Processing Center’s written
attendance policy. His schedule was set biweekly based on survey needs and his
availability. He could change his final schedule only in emergencies with supervisor
approval. If Dixon could not work a scheduled shift, he was required to call within the
first hour and obtain a supervisor’s approval for the absence. Time and attendance
records were maintained by a timekeeper, but it was Dixon’s responsibility to ensure
the accuracy of those records. He could be fired for being absent without calling in and
for excessive unapproved absences and tardiness.
According to Dixon, he also learned during orientation that the Processing
Center has several unwritten policies that supersede conflicting written policies. The
Branch Chief, said Dixon, stressed that management did not “just fire people” for poor
attendance and was willing to work with employees to rectify such issues. Dixon also
was told that he could avoid being marked tardy by working additional hours.
From the beginning of Dixon’s employment he was absent frequently. He missed
five shifts during his first two months without documenting his explanation. Phyllis
Smith, Dixon’s supervisor for time and attendance purposes, counseled him in
November 2005 about his excessive call‐ins. Smith emphasized the importance of
committed attendance and warned Dixon in writing that “excessive absences (call‐ins)
without acceptable documentation, may result in administrative action being taken.”
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A month later Dixon was assigned temporarily to Smith’s department to work on
a survey. When he arrived a female coworker exclaimed, “Oh no! We have a man in our
department!” in a contemptuous tone that made Dixon uncomfortable. During the next
few weeks Dixon also overheard other female coworkers make what he interpreted to
be disparaging comments about men, though at summary judgment he submitted no
evidence about what the women said. There is no evidence that Dixon shared his
concern with management, but on one occasion Smith herself told a female employee to
disregard a question from a coworker because he was “just a man.”
Meanwhile, Dixon developed spinal pain that made sitting uncomfortable and
caused him to miss work. Sometimes he provided management with a doctor’s note;
sometimes he did not. Dixon did give management a note from his doctor prescribing
use of a chair with arm rests, and he received a new chair within an hour. In the weeks
that followed, Dixon says, he also requested a footstool and permission to work from
home, but both requests were denied. Dixon also says he was assured by a scheduler
that his absences would not be problematic if he provided adequate documentation.
The scheduler cannot recall making that statement and, at all events, did not have the
authority to approve absences or decide whether disciplinary action was warranted.
In May 2006, after Dixon had finished his assignment in Smith’s department, she
questioned him about three days for which a timekeeper had marked him absent
without calling in. He pointed out, and Smith then confirmed, that on one of those dates
he actually had been at work. Smith encouraged Dixon to review his time sheets and
correct any other inaccuracies, but when he tried to do so, Smith was dismissive of his
effort. When he last attempted to compare records with Smith, she laughed and told
him, “Get out of here.”
On August 3, 2006, Dixon missed work after his abusive stepfather threatened to
assault him. Dixon called in and explained to a supervisor that the situation might
prevent him from working for several days. The next day Dixon did not report for work
or call in.
After learning about the August 4 absence, Smith reviewed Dixon’s file and
noted his numerous absences (Smith still supervised Dixon’s time and attendance even
though he no longer was assigned to her department). On August 21, 2006, she
prepared a counseling form warning Dixon that he must improve his attendance record
or risk serious administrative action, but she was unable to deliver the form or counsel
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him in person because Dixon did not report to work again after Smith had prepared the
form.
As Dixon’s probationary period drew to a close, the Branch Chief reviewed his
employment record in deciding whether he should be retained. In the ten months from
October 26, 2005, through August 22, 2006, Dixon had missed work 63 times, including
17 times without management approval. He also had been tardy 27 times, requested
schedule changes 26 times, and failed to call in on August 4. The Branch Chief noted
that Dixon had been counseled in November 2005 and that Smith had prepared the
undelivered counseling form in August 2006. The Branch Chief deemed Dixon’s
attendance record among the worst she had seen in 12 years managing the Processing
Center. She recommended that he be fired. The Human Resources department
approved that recommendation after reviewing Dixon’s record with the Office of the
General Counsel. Dixon received his letter of termination on September 6, 2006,
detailing his “unacceptable attendance, unauthorized absence, tardiness, and failure to
follow . . . scheduling procedures.”
On September 13, 2006, Dixon sought precomplaint counseling for sex
discrimination. See 29 C.F.R. § 1614.105(a). After the counselor issued her report, Dixon
submitted a formal complaint with help from his union representative alleging sex
discrimination only. When that allegation was being investigated, Dixon clarified his
administrative complaint but did not assert disability discrimination. At no point did
Dixon amend his administrative complaint to include an allegation of disability
discrimination. See 29 C.F.R. § 1614.106(d).
The Department of Commerce issued its final decision in October 2007,
concluding that Dixon had “not provided any evidence from which an inference of sex
discrimination can be drawn” or shown that management’s explanation for firing him
was a pretext for discrimination. The Department also noted that Dixon, despite
speculating during the investigation that his request for a new chair might have
influenced the decision to fire him, had not alleged a disability within the meaning of
the Rehabilitation Act, see 29 U.S.C. §§ 701 to 797. After the Equal Employment
Opportunity Commission upheld that decision, EEOC Decision No. 0120080656 (Oct. 8,
2009), Dixon sought reconsideration. He explained that he now believed he had been
discriminated against on the basis of a disability because the Department had relied on
his absences—caused by his recently diagnosed congenital spinal disorder—to fire him.
The EEOC denied reconsideration explaining that Dixon’s request did not meet the
criteria of 29 C.F.R. § 1614.405(b), which limits the arguments that can be raised in such
a motion. EEOC Decision No. 0520100110 (Apr. 22, 2010).
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Dixon then sued the Department of Commerce under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e‐1 to 2000e‐17, and the Rehabilitation Act. His amended
complaint alleges that the Department fired him because of his sex and also failed to
accommodate his congenital spinal disorder. (Dixon’s complaint includes additional
references to “disparate impact,” but that theory has since been abandoned.) In
responding to the Department’s motion for summary judgment, Dixon asserted that
Smith is prejudiced against men and thus caused the Branch Chief to fire him by
highlighting his attendance problems immediately before his probationary period
ended. Dixon also insisted that his Rehabilitation Act claim should have been
“equitably tolled” because he lacked the information necessary to proceed earlier with a
charge of disability discrimination and because the persons involved and his evidence
overlapped with his claim of sex discrimination.
In granting summary judgment for the Department of Commerce, the district
court concluded that Dixon was proceeding on his claim of sex discrimination under the
indirect method, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973), but
had not identified a similarly situated female coworker who was treated more favorably
than him. The court also noted that Dixon had not shown that the Department’s
proffered reason for firing him—his excessive absences and tardiness—was a pretext for
sex discrimination. Moreover, the court added, Dixon had not administratively
exhausted his claim of disability discrimination. The Rehabilitation Act claim would fail
regardless, the court reasoned, because Dixon lacks evidence that he was disabled or
that the Department had failed to accommodate his condition.
On appeal Dixon first challenges the adverse decision on his Rehabilitation Act
claim. As the district court recognized, however, Dixon did not administratively
exhaust a claim under that statute, and that omission is fatal to his claim brought in
district court. See Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009); McGuinness v. United
States Postal Serv., 744 F.2d 1318, 1319‐20 (7th Cir. 1984). He never filed an
administrative complaint alleging disability discrimination, and mentioning his spinal
disorder in his motion to reconsider the EEOC’s decision on appeal could not cure that
omission. See 29 C.F.R. §§ 1614.106(d), 1614.405(c). Dixon argues only that his
Rehabilitation Act claim was “equitably tolled” because he did not know about the
statute or that he was disabled when he filed his administrative complaint. Tolling can
allow an otherwise late EEOC charge to be considered timely. See Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982). But Dixon never submitted a disability charge, so
tolling is irrelevant. See Lewis v. City of Chicago, 702 F.3d 958, 961 (7th Cir. 2012). We
need not say more about the Rehabilitation Act.
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Dixon also challenges the grant of summary judgment on his Title VII claim. He
does not contest the district court’s conclusion that his claim fails under the indirect
method of proof. Instead, he insists that under the direct method he presented sufficient
circumstantial evidence from which a jury could infer that the Department of
Commerce fired him, not because of his excessive absences, but because of his sex.
See Collins v. Am. Red Cross, 715 F.3d 994, 999 (7th Cir. 2013); Brown v. Advocate
S. Suburban Hosp., 700 F.3d 1101, 1105 (7th Cir. 2012).
This argument goes nowhere. As evidence of sex discrimination, Dixon points to
what he views as Smith’s tolerance in her department of a “culture of sexist animus
toward men,” notes from his doctors explaining some of his absences, and—in his
view—the Department’s failure to warn him that his attendance was a problem despite
the scheduler’s reassurances and the Branch Chief’s promise to work with those with
attendance issues. But none of this is direct evidence of sex discrimination, with the
possible exception of Smith’s one remark that an employee’s question could be ignored
because he was “just a man.” Dixon was assigned to Smith’s department for only part of
his year‐long employment at the Processing Center, and he offered nothing
contradicting the Department’s evidence that he had 17 unapproved absences, was
tardy for work on 27 days, and did not call in at all on August 4, 2006. Moreover, the
Department did warn Dixon, both in its orientation materials and again when he was
counseled in November 2005, that his absences were a problem that could lead to
termination of his employment. Further, Dixon did not inform management that some
of his female coworkers were making comments disparaging men, and the one
comment he attributes to Smith is not evidence that the Branch Chief’s decision to fire
him was discriminatory. See Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 672
(7th Cir. 2011); Petts v. Rockledge Furniture LLC, 534 F.3d 715, 722–23 (7th Cir. 2008);
Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007).
We have considered Dixon’s other arguments, and none merits discussion.
Accordingly, the judgment is AFFIRMED.
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