Henry Roeben v. Home Depot, Incorporated

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Richard D. Cudahy, Circuit Judge and Kenneth F. Ripple, Circuit Judge. [6667157-1] [6667157] [15-1038]

Case: 15-1038

Document: 17
Filed: 06/02/2015
Pages: 3
NONPRECEDENTIAL DISPOSITION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 May 15, 2015 *
Decided June 2, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 15-1038
HENRY ROEBEN,
Plaintiff-Appellant,

Appeal from the United States District
Court for the Western District of
Wisconsin.

v.
No. 13-cv-641-wmc
THE HOME DEPOT U.S.A., INC.,
Defendant-Appellee.

William M. Conley,
Chief Judge.

ORDER
Henry Roeben appeals the grant of summary judgment for his former employer,
The Home Depot U.S.A., Inc., in this suit under the Age Discrimination in Employment
Act, 29 U.S.C. §§ 621–634, asserting that he was fired from his job as a sales associate
because of his age (60 at the time). The district court concluded that Roeben failed to

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).
*

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establish a prima facie case under the ADEA using either the direct or indirect method.
We affirm.
Roeben’s suit focuses on the last few months of his employment at a Home Depot
in Madison, Wisconsin, where he began working in 2005. In December 2010 a customer
complained to Roeben’s supervisor that Roeben had refused to help him unscrew a
lightbulb in order to inspect a light fixture in the store. Because his refusal to help the
customer was considered a major work violation, Roeben’s supervisor issued him a
written warning marked “final counseling.” Then in February 2011, Roeben was seen by
three employees (assistant store managers Sarah Lukes and Marcus Kemblowski as well
as rental department supervisor Robert Schloss) to be seated at the electrical department
service desk, slouched over with his eyes closed, apparently sleeping. After an internal
investigation by Home Depot’s “Associate Advice and Counsel Group” (an entity that
advises store managers on employees’ policy violations), Lukes informed Roeben in
February 2011 that he was fired. He was replaced by someone who was three years
younger.
In 2013 Roeben filed this suit asserting that Home Depot fired him because of his
age. According to Roeben’s deposition testimony, Kemblowski told him after he was
informed by Lukes that he was fired, “Well, if you would have been a part-time
employee, I wouldn’t have targeted you” and, “Your age, you should have been
working part-time.” The district court eventually granted Home Depot’s motion for
summary judgment, concluding that Kemblowski’s statement did not constitute
“smoking gun” evidence under the direct method that Home Depot had fired him
because of his age. Roeben disputed neither Home Depot’s proposed findings of fact nor
the declarations of Lukes and Kemblowski denying that Kemblowski made the
age-related comment. Roeben also could not establish a prima facie case of age
discrimination under the indirect method, the court explained, because he did not
identify a younger, similarly situated employee who received better treatment. And
even if he could establish a prima facie case, he did not dispute Home Depot’s
nondiscriminatory reason for firing him—that he had been reported sleeping on the job
and ignoring customers.
On appeal Roeben asserts generally that summary judgment was improper
because the three witnesses who reported him sleeping on the job and ignoring
customers were lying. But Roeben does not develop this argument or identify evidence
in the record to support it, see FED. R. APP. P. 28(a)(8)(A) (requiring that appellant’s brief
include reasons for contentions “with citations to the authorities and parts of the record

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on which” the appellant relies); Yasinskyy v. Holder, 724 F.3d 983, 989 (7th Cir. 2013). In
any event the district court was correct that Roeben presented no evidence that a
younger employee was treated better under similar circumstances, that Home Depot’s
reason for firing him was pretext, or that Kemblowski’s statement somehow was a
“smoking gun” for purposes of the direct method of proof. See FED. R. CIV. P. 56(c)(1)(A)
(disputed facts must be supported by evidence in record); Long v. Teachers’ Ret. Sys. of Ill.,
585 F.3d 344, 349 (7th Cir. 2009). Roeben’s primary evidence of age discrimination was
his deposition testimony that Kemblowski told him he should have been working
part-time because of his age. But whether Kemblowski said this (recall his denial, as well
as Lukes’s) is immaterial, see Scott v. Harris, 550 U.S. 372, 380 (2007) (explaining that
summary judgment cannot be defeated unless factual dispute is material), because
Roeben did not dispute Home Depot’s proposed factual findings that a different
supervisor had given him a final disciplinary warning two months earlier, that Lukes
and Schloss also had reported him sleeping on the job and ignoring customers, or that
the decision to fire him had been recommended by Home Depot’s advice and counsel
group.
AFFIRMED.