Joshua Bunn v. Khoury Enterprises, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2292

JOSHUA BUNN,

Plaintiff-Appellant,

v.

KHOURY ENTERPRISES, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:11-cv-01540 — William T. Lawrence, Judge.

ARGUED DECEMBER 13, 2013 — DECIDED MAY 28, 2014

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. Joshua Bunn quit his job at a Dairy

Queen franchise and sued the franchisee, his former employer,

under the Americans with Disabilities Act. Bunn, who is

vision-impaired, believed that the employer failed to accom-

modate his disability as required by law and that it subjected

him to illegal disparate treatment when it reduced his sched-

uled hours during the winter months. The district court

2 No. 13-2292

granted the employer’s motion for summary judgment on all

claims, and Bunn appealed. After disposing of an initial

procedural argument, we find that Bunn’s failure-to-accommo-

date claim falls short because the employer did reasonably

accommodate Bunn’s disability. Next, we find that his dispa-

rate treatment claim fails because he has not introduced

sufficient evidence to create a triable issue of material fact and

because the undisputed facts show that the defendant is

entitled to judgment as a matter of law. We affirm the judg-

ment of the district court in all respects.

I. BACKGROUND

Joshua Bunn is legally blind. He has no vision in one eye

and greatly reduced vision in the other. On July 25, 2010, Bunn

applied for employment with Khoury Enterprises (“Khoury”),

a firm operating Dairy Queen franchises in the Indianapolis

area. On September 27, 2010, Khoury hired Bunn for an hourly

position. The parties dispute whether that position was

formally classified as “full-time” or “part-time,” but for the

purposes of this lawsuit that distinction is irrelevant.

Typically, hourly employees at Khoury’s Dairy Queen

stores were required to rotate between various duty stations.

These included preparing ice cream treats, preparing grilled

food, working the cash register, maintaining the dining area,

and more. Bunn’s first assignment was to the “Chill” depart-

ment, in which Dairy Queen’s well-known ice cream treats

were prepared. Bunn was unable to perform certain duties

within the department without accommodation. The type on

the ingredient labels was too small, and the monitors display-

ing orders to be filled were too high.

No. 13-2292 3

Store manager Larry Johnson took responsibility for finding

a position better suited to Bunn’s needs. Eventually, he trained

Bunn in the “Expo” department, in which employees were

responsible for delivering food to dine-in customers and

keeping the store and the dining area clean. Bunn was able to

perform his duties in the Expo department with minimal

accommodation, and Johnson decided to schedule Bunn

exclusively in Expo. That meant Bunn’s position was different

from the position held by most of his hourly peers, as they

continued to rotate between departments while he stayed put.

But it did not mean that Bunn was given fewer hours. From the

time he was trained until the time he was suspended due to

insubordinate conduct towards a supervisor, Bunn was

scheduled full-time.

On November 17, 2010, night manager Norma Caballero

asked Bunn to put his cell phone away while working (Bunn

had been warned about using his phone during his shift on

multiple occasions). Bunn refused, and Caballero reported that

he gave her an “attitude” for the rest of the shift, including

shoving a trash can at her when she asked him to take out the

garbage. Caballero contacted Larry Johnson, and Bunn was

suspended for ten days. Bunn signed a written suspension

notice indicating that he understood why he was being

disciplined.

Bunn’s hours decreased following the suspension. In

December 2010, Bunn requested and received seven days off.

Khoury’s restaurants were also closed for the holidays, and on

occasion closed due to inclement weather. Bunn worked only

23.41 hours that month. In January 2011, after returning from

vacation, Bunn worked just 12.33 hours. It is undisputed that,

4 No. 13-2292

given the nature of a Dairy Queen franchise’s business,

Khoury’s restaurants saw decreased demand during the cold

weather months and adjusted many employee schedules

accordingly. On February 1, 2011, Bunn submitted his resigna-

tion. He told Johnson that he felt he could work more hours

with another employer; Johnson agreed.

After his resignation became effective, Bunn filed a timely

charge of discrimination with the Equal Employment Opportu-

nity Commission (“EEOC”). The EEOC declined to pursue the

charge and issued a right-to-sue letter. Bunn brought this

lawsuit alleging failure to accommodate his disability and

disparate treatment, both in violation of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12112. The district court

granted summary judgment in Khoury’s favor on all claims,

finding that no material facts were genuinely disputed and that

the undisputed facts entitled Khoury to a judgment as a matter

of law. Bunn appeals, and we affirm.

II. ANALYSIS

There are three issues before us on appeal: (1) whether the

district court erred by granting summary judgment before

Bunn had a chance to respond to a late-filed affidavit submit-

ted by the defendant; (2) whether the district court erred in

granting summary judgment to the defendant on Bunn’s

failure-to-accommodate claim; and (3) whether the district

court erred by granting summary judgment to the defendant

on Bunn’s disparate treatment claim. We affirm the district

court’s treatment of this case in all respects.

No. 13-2292 5

A. Bunn’s Procedural Argument

Bunn begins by complaining about the briefing schedule.

Khoury filed its motion and supporting brief for summary

judgment on February 1, 2013. The Larry Johnson “affidavit”

attached to those filings consisted of a signature page, and

nothing else. Nonetheless, Khoury’s brief relied heavily on

facts allegedly supplied by the missing body of that affidavit.

Bunn twice filed for extensions of time to respond to Khoury’s

motion for summary judgment, ultimately filing a response on

March 20, 2013. Bunn was aware of the deficiency in Khoury’s

filings at the time of his response; he noted it in his brief, but

“speculated” that the absence of the affidavit made little

difference. On April 30, 2013, the district court ordered Khoury

to file the missing pages, and Khoury complied on May 6, 2013.

On May 13, 2013, the district court granted Khoury’s motion

for summary judgment. Bunn believes it was an error for the

district court to fail to give him a separate, additional response

period in which to file a brief addressing the completed

Johnson affidavit. We disagree for two reasons.

The first reason is a legal one. Bunn’s argument, at its core,

attacks the district court’s application of its own local rules.

Local Rule 56.1(b) for the Southern District of Indiana affords

a litigant 28 days to respond to a “summary judgment mo-

tion.” Bunn was given 28 days (and then some) in which to

respond to Khoury’s motion. There is nothing in the plain

language of the rule concerning an additional 28-day response

period when one party is directed to correct a clerical error; the

rule only applies to a response to a “motion,” not to a misfiled

affidavit. The district court’s decision not to wait for a response

therefore rested on its interpretation of an ambiguity, or of an

6 No. 13-2292

area of no coverage, in the local rules. “[D]istrict courts have

considerable discretion in interpreting and applying their own

local rules.” Congregation of the Passion, Holy Cross Province v.

Touche, Ross & Co., 854 F.2d 219, 223 (7th Cir. 1988). We will

intrude on that discretion only where we are “convinced” the

district court made a mistake. Id. We cannot say we are

“convinced” the district court made a mistake in this case when

there is nothing at all in the rules to suggest that it did. What

we can say is that the district court made a discretionary call

concerning a matter not directly covered by the local or federal

rules, as it was perfectly entitled to do.

The second reason we find Bunn’s procedural argument

unpersuasive is a practical one. Bunn was not prejudiced in the

slightest by Khoury’s failure to attach the complete Johnson

affidavit to its motion for summary judgment. Every fact

derived therefrom on which Khoury intended to rely was cited

within its brief supporting the motion. Thus, even if Bunn

could not look at the affidavit itself, he was aware of its

contents and could have submitted contradictory evidence

with his response, if he had any. He was also free to bring the

matter to the district court’s attention at any time prior to his

long-delayed submission of a response brief. But he did not,

and, in his response brief, Bunn himself averred that the

missing affidavit made little difference. There is no legal or

equitable reason for us to reverse on these grounds.

B. Failure to Accommodate

Bunn asks us to review the district court’s adverse grant of

summary judgment on his failure to accommodate claim, a task

which we undertake de novo. Swetlik v. Crawford, 738 F.3d 818,

No. 13-2292 7

826 (7th Cir. 2013). Summary judgment is appropriate where

the admissible evidence shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Lawson v.

CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001). A “material

fact” is one identified by the substantive law as affecting the

outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A “genuine issue” exists with respect to any such

material fact, and summary judgment is therefore inappropri-

ate, when “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. On the other

hand, where the factual record taken as a whole could not lead

a rational trier of fact to find for the non-moving party, there

is nothing for a jury to do. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). In determining whether a

genuine issue of material fact exists, we view the record in the

light most favorable to the nonmoving party. Anderson, 477

U.S. at 255.

Bunn brought his claim under the Americans with Disabili-

ties Act. The ADA provides that a covered employer shall not

“discriminate against a qualified individual on the basis of

disability[.]” 42 U.S.C. § 12112(a). “Discrimination,” for the

purposes of Section 12112(a), includes “not making reasonable

accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is an

applicant or employee” unless the employer “can demonstrate

that the accommodation would impose an undue hardship on

the operation of the business.” 42 U.S.C. § 12112(b)(5)(A).

8 No. 13-2292

We have derived a three-part test from the statutory

language. In order to establish a claim for failure to accommo-

date, a plaintiff must show that: (1) he is a qualified individual

with a disability; (2) the employer was aware of her disability;

and (3) the employer failed to reasonably accommodate the

disability. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th

Cir. 2005) (citing Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572

(7th Cir. 2001)). Khoury does not dispute that Bunn’s case

satisfies the first two prongs. But the district court granted

summary judgment to Khoury because Bunn’s case fails the

third prong: Khoury did reasonably accommodate Bunn’s

disability.

We agree with that conclusion. The term “reasonable

accommodation,” in the context of this case, means

“[m]odifications or adjustments to the work environment, or

to the manner or circumstances under which the position held

or desired is customarily performed, that enable [a qualified]

individual with a disability … to perform the essential func-

tions of that position[.]” 29 C.F.R. § 1630.2(o)(1)(ii). Particular

examples include “[m]aking existing facilities used by employ-

ees readily accessible to and usable by individuals with

disabilities[,]” as well as “[j]ob restructuring; part-time or

modified work schedules; reassignment to a vacant position;

acquisition or modifications of equipment or devices; appropri-

ate adjustment or modifications of examinations, training

materials, or policies; the provision of qualified readers or

interpreters; and other similar accommodations for individuals

with disabilities.” 29 C.F.R. § 1630.2(o)(2)(i)–(ii). Of course, that

list is not exhaustive. In the general sense, “an accommodation

is any change in the work environment or in the way things are

No. 13-2292 9

customarily done that enables an individual with a disability

to enjoy equal employment opportunities.” 29 C.F.R. pt. 1630

app. § 1630.2(o).

It is undisputed that, when it became clear that Bunn could

not perform the rotating duties of a regular hourly employee,

store manager Larry Johnson worked with him to determine

which job functions he could perform and which he could not.

Bunn was best able to perform the duties of an employee in the

Expo department. Accordingly, instead of rotating Bunn

through various departments, some of which were unsuitable

for him, Johnson instructed Bunn’s immediate supervisors to

schedule him exclusively in Expo. That “change … in the way

things [were] customarily done” enabled Bunn to enjoy equal

employment opportunities, as evidenced by the undisputed

fact that he was scheduled full-time in Expo from his hire date

until his suspension. 29 C.F.R. pt. 1630 app. § 1630.2(o). It

might also be called a “job restructuring,” or a “modified work

schedule.” 29 C.F.R. § 1630.2(o)(2)(ii). In short, it was exactly

the kind of accommodation envisioned by the regulations

applicable to the ADA.

That is the end of our inquiry; the undisputed facts show

that Khoury did what it was required to do by law. Bunn’s

only argument to the contrary is that he asked for additional,

or different, accommodations and was rebuffed. But even if we

credit his version of events—which we are obligated to do at

the summary judgment stage—that fact is not material. While

the EEOC regulations accompanying the ADA do suggest that

“it may be necessary for the [employer] to initiate an informal,

interactive process with the [employee]” to determine an

appropriate accommodation, 29 C.F.R. § 1630.2(o)(3) (emphasis

10 No. 13-2292

added), there is no separate cause of action for a failure of that

interactive process. In this area of the law, we are primarily

concerned with the ends, not the means: “Because the interac-

tive process is not an end in itself, it is not sufficient for [an

employee] to show that [an employer] failed to engage in an

interactive process or that it caused the interactive process to

break down.” Rehling v. City of Chicago, 207 F.3d 1009,

1015–1016 (7th Cir. 2000); see also Spurling v. C & M Fine Pack,

Inc., 739 F.3d 1055, 1059 n.1 (7th Cir. 2014). Ultimately, Khoury

did provide a reasonable accommodation to Bunn. Bunn’s

apparent displeasure with the way in which Khoury decided

on that accommodation, or with its failure to provide the exact

accommodation he would have preferred, is irrelevant. Id. at

1016 (“The ADA seeks to ensure that qualified individuals are

accommodated in the workplace, not to punish employers

who, despite their failure to engage in an interactive process,

have made reasonable accommodations.”). We affirm the

district court’s grant of summary judgment on Bunn’s failure-

to-accommodate claim.

C. Disparate Treatment

Finally, Bunn contests the district court’s adverse grant of

summary judgment on his disparate treatment claim. Once

again, we review de novo, mindful of the analytical rubric laid

out for us by Rule 56. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist.

No. 522, 657 F.3d 595, 600 (7th Cir. 2011). Once again, we affirm

the judgment of the district court.

1. Direct Method

A plaintiff claiming disparate treatment in violation of the

ADA can rely on two different methods of proof to survive a

No. 13-2292 11

summary judgment motion. Bunn relies on both. The first is

the “direct method,” in which a plaintiff must show that a

genuine issue of material fact exists with respect to each of the

three elements he will eventually be required to prove at trial:

(1) that the plaintiff is disabled within the meaning of the ADA;

(2) that the plaintiff is qualified to perform the essential

functions of the job with or without accommodation; and (3)

that the plaintiff has suffered an adverse employment action

because of his disability. Timmons v. Gen. Motors Corp., 469 F.3d

1122, 1127 (7th Cir. 2006).

Khoury concedes the first two prongs of the test, but

contests the third. In theory, the third prong—tying an adverse

employment action to a discriminatory animus—can be proved

with either direct or circumstantial evidence. Dickerson, 657

F.3d at 601. But direct evidence, which might take the form of

an admission of discriminatory intent by the relevant

decisionmaker within the defendant employer’s ranks, is

understandably rare in ADA cases. Most ADA plaintiffs

therefore rely on circumstantial evidence, which might include:

(1) suspicious timing; (2) ambiguous statements or

behavior towards other employees in the protected

group; (3) evidence, statistical or otherwise, that simi-

larly situated employees outside of the protected group

systematically receive better treatment; and (4) evidence

that the employer offered a pretextual reason for an

adverse employment action.

Id. (citing Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 586–87

(7th Cir. 2011); Burnell v. Gates Rubber Co., 647 F.3d 704, 708 (7th

Cir. 2011)).

12 No. 13-2292

Bunn, like most ADA plaintiffs, purports to rely on circum-

stantial evidence. But he presents none that is sufficient to

create a genuine issue of fact. Even if we assume that Khoury

subjected Bunn to an “adverse employment action”—an

assumption which is not clearly supported by the evidence of

record1—he has suggested only three items which he believes

will prove that such disparate treatment was due to his

disability.

The first is his contention that he was disciplined for

looking at his cell phone during his shift, while non-disabled

employees were permitted to do so. There is no evidence in the

record—not even in Bunn’s own affidavit—to support Bunn’s

contention that non-disabled employees were not disciplined

for similar conduct. Without any admissible evidence to

support Bunn’s claim, we cannot say there is a genuine

dispute.

The second is Bunn’s assertion that, when he asked Johnson

if certain accommodations could be made to allow Bunn to

work in departments other than Expo, Johnson rebuffed him,

saying something like, “I will place you wherever I want,”

without regard to sight restrictions. But it is undisputed that

Johnson was the store manager, and that scheduling all of his

employees—not just Bunn—wherever he wanted was a

1

The reduction in Bunn’s scheduled hours during the winter months

following his suspension is the “adverse employment action” of which he

complains, but it is difficult to parse out how much of that was due to his

own requests for time off and how much was due to employer-side

scheduling changes. Obviously, granting requested vacation days is not an

“adverse employment action.”

No. 13-2292 13

fundamental part of his job description. It is not evidence of

discrimination when a manager tells an employee, “Leave the

managing to me.” Furthermore, the undisputed evidence

shows that Johnson in fact scheduled Bunn in a position which

he could perform with minimal accommodation. Given that, it

is hard to see how a rational jury could consider Johnson’s

statement about scheduling discretion to be evidence of a

discriminatory animus. Johnson’s comment does not create a

triable issue.

The third is much like the second. Bunn claims that when

he asked Johnson to schedule him for more hours, Johnson told

Bunn he would schedule him for however many hours he saw

fit. Again, this is simply a manager exercising control over an

employee. There is no hint of disability discrimination in the

content or the context of the quote. We are typically very

cautious about relying on “stray remarks” as evidence of

discriminatory animus even where the content is arguably

discriminatory. See, e.g., Teruggi v. CIT Grp./Capital Fin., Inc.,

709 F.3d 654, 661 (7th Cir. 2013); Merillat v. Metal Spinners, Inc.,

470 F.3d 685, 694 (7th Cir. 2006). There is even more reason to

be cautious here, where the remarks in question do not single

out the plaintiff based on his disability or any other individu-

ally distinguishing characteristic.

In short, Bunn has not produced sufficient evidence to

create a triable issue of fact as to whether Khoury took an

adverse employment action against him because of his disabil-

ity. He therefore cannot rely on the direct method of proof to

survive summary judgment.

14 No. 13-2292

2. Indirect Method

The second method of proof available to an ADA plaintiff

hoping to survive summary judgment is the “indirect method,”

originally developed in the Title VII context by McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and its multitudi-

nous progeny. The indirect method of proof, which exists only

to help plaintiffs survive summary judgment and falls away at

the trial stage, follows a burden-shifting approach. First, the

employee establishes a prima facie case by showing: (1) that he

is disabled under the ADA; (2) that he was meeting his em-

ployer’s legitimate expectations; (3) that he suffered an adverse

employment action; and (4) that similarly situated employees

without a disability were treated more favorably. Lloyd v.

Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009). If the

employee is able to establish a prima facie case, the burden

shifts to the employer to produce a legitimate, non-discrimina-

tory reason for the adverse employment action. Dickerson, 657

F.3d at 601 (citing Rooney v. Koch Air, LLC, 410 F.3d 376, 381

(7th Cir. 2005)). The employer’s burden in that regard is one of

production, not persuasion; the burden of persuasion remains

with the employee throughout the process. South v. Ill. Envtl.

Prot. Agency, 495 F.3d 747, 751–52 (7th Cir. 2007). Finally, if a

legitimate reason is produced, the employee must prove by a

preponderance of the evidence that the employer’s stated

reason is a lie. Dickerson, 657 F.3d at 601; Faas v. Sears, Roebuck

& Co., 532 F.3d 633, 642 (7th Cir. 2008) (“Pretext means a

dishonest explanation, a lie rather than an oddity or an error.”)

(internal quotation marks omitted).

No. 13-2292 15

Bunn fails the indirect method at every stage. First, Bunn

has not made out a prima facie case of discrimination. The

undisputed evidence shows that he did not meet his em-

ployer’s legitimate expectations. He missed an inordinate

amount of work in his first several months on the job, and he

shoved a trash can at the night manager, resulting in a suspen-

sion. He has also completely failed to identify, let alone

discuss, a similarly situated non-disabled employee who was

treated more favorably. That inquiry is too fact-intensive for us

to rely on conjecture alone. See, e.g, Raymond v. Ameritech Corp.,

442 F.3d 600, 610 (7th Cir. 2006); Radue v. Kimberly-Clark Corp.,

219 F.3d 612, 617–18 (7th Cir. 2000) (an employee is similarly

situated only where he is directly comparable in all material

aspects, including performance, qualifications, and conduct).

It is Bunn’s responsibility to identify a satisfactory comparator

to the court, and he has not done so. When an employee cannot

make out a prima facie case, that is the end of it; summary

judgment is warranted.

Second, even if Bunn could establish a prima facie case,

Khoury has met its burden of producing a legitimate reason for

the reduction in Bunn’s scheduled hours—several reasons, in

fact. Bunn’s hours were reduced during the winter months

following his suspension because of weather closings, vacation

days (which Bunn himself requested), and reduced demand for

Dairy Queen treats during the dead of winter. Bunn has not

introduced a single shred of evidence suggesting that these

explanations are lies, let alone evidence sufficient to meet the

preponderance standard. Dickerson, 657 F.3d at 601. There is no

genuine issue for trial.

16 No. 13-2292

In summary, we agree with the district court that Khoury

is entitled to summary judgment on Bunn’s disparate treat-

ment claim. Bunn has failed to create any triable issues of fact

through either the direct or the indirect method of proof, and

the undisputed facts entitle Khoury to judgment as a matter of

law.

III. CONCLUSION

Bunn’s procedural argument asks us to wrest away from

the district court its discretion to interpret and apply its own

local rules. We decline to do so. His failure-to-accommodate

claim fails because Khoury in fact provided a reasonable

accommodation, and his disparate treatment claim fails

because he has not produced sufficient evidence to create a

triable issue of fact under any method of proof. We AFFIRM

the judgment of the district court.