Edith McCurry v. Kenco Logistic Services, LLC

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-3206

EDITH MCCURRY,

Plaintiff-Appellant,

v.

KENCO LOGISTICS SERVICES, LLC, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 16-CV-2273 — Colin S. Bruce, Judge.

____________________

ARGUED APRIL 11, 2019 — DECIDED NOVEMBER 7, 2019

____________________

Before SYKES, SCUDDER, and ST. EVE, Circuit Judges.

SYKES, Circuit Judge. Edith McCurry worked at an Illinois

warehouse owned by Mars, Inc., the well-known candy

maker, and operated by Kenco Logistics Services, a third-

party management firm. In March 2015 Kenco lost its con-

tract with Mars and laid off its employees at the warehouse,

including McCurry. More than a year later, she filed two

rambling pro se complaints accusing Kenco, Mars, and

several of her supervisors of discriminating against her

No. 18-3206 2

based on her race, sex, age, and disability. She also alleged

that Kenco and Mars conspired to violate her civil rights.

The district court consolidated the suits and dismissed

some of the claims. The defendants then moved for sum-

mary judgment on the rest. McCurry’s response violated the

local summary-judgment rule, so the judge accepted the

defendants’ factual submissions as admitted and entered

judgment in their favor. McCurry retained counsel and

appealed.

We affirm. McCurry doesn’t challenge the judge’s deci-

sion to enforce the local summary-judgment rule. As a result,

and unsurprisingly, the uncontested record contains no

evidence to support a viable discrimination or conspiracy

claim. Indeed, the appeal is utterly frivolous and McCurry’s

monstrosity of an appellate brief is incoherent, so we also

order her lawyer, Jordan T. Hoffman, to show cause why he

should not be sanctioned or otherwise disciplined under

Rules 28 and 38 of the Federal Rules of Appellate Procedure.

I. Background

We begin with the judge’s decision to enforce Local

Rule 7.1(D), 1 which governs the summary-judgment process.

McCurry violated multiple provisions of the rule. We in-

clude a sampling to provide an understanding of her non-

compliance:

• Under Local Rule 7.1(D)(1)(a)–(c), a response to a

summary-judgment motion must include the follow-

1 Local Rules of the Central District of Illinois.

No. 18-3206 3

ing specific sections with appropriate headings: an in-

troduction, a response to the moving party’s state-

ment of undisputed material facts, and an argument

section. McCurry’s response to the defendants’ mo-

tions contained none of those sections. It was instead

a disorganized, rambling, hard-to-decipher mess.

• Local Rule 7.1(D)(2)(b) requires that the response to

the moving party’s statement of material facts must

identify, in separate subsections: (1) the undisputed

material facts; (2) the disputed material facts; (3) the

disputed immaterial facts; (4) the undisputed imma-

terial facts; and (5) any additional material facts. Each

disputed fact conceded to be material must be listed

by number and supported by evidentiary documenta-

tion that is referenced by specific page. McCurry’s re-

sponse was woefully noncompliant with these

requirements. She responded to some facts by num-

ber but said only that she objected to them. She did

not state the basis for her objections, nor did she re-

spond with appropriate and specific citations to evi-

dentiary documentation.

• Although McCurry did not include an argument sec-

tion in her brief, her arguments were scattered ran-

domly throughout her 62-page response, in probable

violation of Local Rule 7.1(D)(5), which (by cross-

reference to Rule 7.1(B)(4)) limits the argument sec-

tion of a response brief to 15 pages or 7,000 words.

Under Local Rule 7.1(D)(2)(b)(6), the failure to properly

respond to a numbered fact in an opponent’s statement of

facts “will be deemed an admission of the fact.” In light of

No. 18-3206 4

McCurry’s widespread noncompliance, the judge deemed

the defendants’ factual submissions admitted.

As we’ve noted, McCurry doesn’t challenge the judge’s

decision to enforce Rule 7.1(D). Even if she had, we have

repeatedly held that district judges may strictly enforce local

summary-judgment rules, Ammons v. Aramark Uniform

Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004), and the judge

reasonably did so here. 2 Accordingly, our account of the facts

is drawn from the defendants’ uncontested factual submis-

sions.

We begin in 2013 when Mars contracted with Kenco, a

third-party logistics firm, to manage its warehouse in

Manteno, Illinois. Under the parties’ agreement, Kenco was

responsible for day-to-day operations and exercised full

control over its own employment policies. Kenco retained

several employees from the previous warehouse manager.

One holdover was Edith McCurry, who worked in human

resources. McCurry, a black woman born in 1962, performed

clerical and administrative duties, such as handling ware-

house payroll, generating reports, and assisting with em-

ployee relations. She had no managerial responsibilities.

2 We give substantial deference to a judge’s decision to strictly enforce

local summary-judgment rules, reversing only for abuse of discretion.

Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004).

The judge showed remarkable patience with McCurry. Even pro se

litigants are obliged to follow procedural rules. Members v. Paige, 140 F.3d

699, 702 (7th Cir. 1998). McCurry’s violations of Local Rule 7.1(D) are

thoroughly documented in the judge’s order denying her motion for

reconsideration, and we find no abuse of discretion.

No. 18-3206 5

In October 2014 Kenco hired Lori Varvel, a white woman

17 years younger than McCurry, as the human-resources

manager. Varvel assumed some of McCurry’s duties, though

McCurry’s pay remained the same.

On December 9 McCurry worked an hour and a half of

unauthorized overtime in violation of Kenco’s timekeeping

policy. Ten days later Varvel gave her a written warning for

working overtime without authorization, misrepresenting

her hours, and failing to report the correct hours. On

January 29, 2015, Kenco announced that it had lost the Mars

contract and that all employees at the warehouse would be

let go at the end of March.

In August 2016 McCurry filed a 77-page, 386-paragraph

pro se complaint against Kenco, Mars, and several supervi-

sors alleging discrimination based on her race, gender, age,

and disability. She also alleged a claim for conspiracy to

violate her civil rights and several state-law claims. None of

her claims alleged that she was fired for a discriminatory

reason. Rather, she complained about conduct during the

course of her employment at the Mars warehouse.

Not two weeks later, McCurry filed a second lawsuit

against largely the same group of defendants. This one, like

the first, was sprawling. Indeed, at 89 pages and

423 paragraphs, the second complaint was even more ram-

bling than the first, but it more or less repeated the allega-

tions in the earlier suit. The district court consolidated the

cases.

The judge dismissed some claims but allowed the follow-

ing to proceed: (1) claims against Kenco for discrimination

on the basis of race and sex in violation of Title VII of the

No. 18-3206 6

Civil Rights Act of 1964; (2) a claim against Kenco, Mars, and

the supervisors for discrimination on the basis of race in

violation of 42 U.S.C. § 1981; (3) a claim against Kenco for

violation of the Age Discrimination in Employment Act

(“ADEA”); (4) a claim against Kenco for violation of the

Americans with Disabilities Act (“ADA”); and (5) a conspira-

cy claim against Kenco, Mars, and the supervisors under

42 U.S.C. § 1985(3).

The defendants moved for summary judgment on these

surviving claims. As we’ve explained, McCurry’s response

did not comply with the local summary-judgment rule, so

the judge accepted the defendants’ statement of facts as

admitted pursuant to Local Rule 7.1(D)(2)(b)(6). Charitably

working his way through each claim, the judge concluded

that the evidence was insufficient to support liability for any

form of employment discrimination or conspiracy.

McCurry moved for reconsideration. The judge denied

the motion, noting that McCurry did not identify any newly

discovered evidence and merely rehashed old arguments.

The judge also elaborated on his decision to enforce Local

Rule 7.1(D), providing an exhaustive account of McCurry’s

violations.

II. Discussion

We review a summary judgment de novo. Kopplin v. Wis.

Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019). Summary

judgment is warranted if the moving party shows that there

is no genuine dispute as to any material fact and he is enti-

tled to judgment as a matter of law. FED. R. CIV. P. 56(a). As

this case comes to us, the record is limited to the defendants’

No. 18-3206 7

evidentiary submissions. Apex Dig., Inc. v. Sears, Roebuck &

Co., 735 F.3d 962, 965 (7th Cir. 2013).

A. Title VII and § 1981 Claims Against the Kenco

Defendants

The legal analysis for discrimination claims under

Title VII and § 1981 is identical, Ferrill v. Oak Creek–Franklin

Joint Sch. Dist., 860 F.3d 494, 499 (7th Cir. 2017), so we merge

our discussion of these claims. As in any employment-

discrimination case, we ask whether the evidence would

permit a reasonable fact-finder to conclude that McCurry

was subjected to an adverse employment action based on a

statutorily prohibited factor—here, race or sex. Ortiz v.

Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).

McCurry maintains that Kenco discriminated against her

by paying her less than her white, male coworker Leonard

Szplett. But Szplett earned more than McCurry because he

had extensive managerial responsibilities and she had none.

McCurry’s unequal-pay claim is therefore baseless. See

Poullard v. McDonald, 829 F.3d 844, 855 (7th Cir. 2016) (affirm-

ing a grant of summary judgment after finding that an

employee’s claim that he was paid less than his supervisor

did not show discrimination).

Next, McCurry argues that Kenco discriminated against

her by hiring Varvel as the human-resources manager. This

is essentially a failure-to-promote claim, so McCurry must

show: (1) she was a member of a protected class; (2) she was

qualified for the position she sought; (3) she was rejected for

the position; and (4) the employer promoted someone

outside of the protected class who wasn’t better qualified.

Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 892 (7th Cir. 2016).

No. 18-3206 8

McCurry did not apply for the position of human-resources

manager, so her failure-to-promote claim does not meet

requirements (2) and (3). This claim too is baseless.

Relatedly, McCurry contends that the reduction of her job

duties after Varvel was hired was discriminatory. This is yet

another baseless claim. Inconveniences and modest altera-

tions of job responsibilities are not adverse employment

actions. Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir.

2012). And the decision to have Varvel handle employee-

relations matters had nothing to do with McCurry’s race or

gender. Varvel, who had prior management experience at a

large corporation, assumed these responsibilities because

she was far more qualified than McCurry.

McCurry also argues that the December 2014 warning for

unauthorized overtime was discriminatory. But the warning

had no impact on her pay or on any terms or conditions of

her employment, so it likewise was not an adverse employ-

ment action. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602

(7th Cir. 2009) (holding that written reprimands without

changes in the terms or conditions of employment are not

adverse employment actions). Finally, any claim for retalia-

tion is baseless because McCurry did not engage in any

statutorily protected activity for which she could be retaliat-

ed against in violation of Title VII. See King v. Ford Motor Co.,

872 F.3d 833, 841 (7th Cir. 2017) (explaining that a plaintiff

must show that he engaged in a statutorily protected activity

in order to prevail on a Title VII retaliation claim).

B. ADEA and ADA Claims Against Kenco

The ADEA prohibits an employer from refusing to hire a

person who is 40 or older because of his age. 29 U.S.C.

No. 18-3206 9

§ 623(a)(1). McCurry’s age-discrimination claim is based on

Kenco’s decision to hire Varvel as the human-resources

manager. McCurry was 52 when Kenco hired Varvel, who

was 17 years younger than she. We have already explained

that McCurry did not apply for this job and that Varvel was

hired because she was far more qualified. There is no evi-

dence to support an age-discrimination claim.

The ADA prohibits an employer from discriminating

against a qualified person on the basis of disability. 42 U.S.C.

§ 12112(a). McCurry argued below that Kenco violated the

ADA when her COBRA health-insurance costs changed after

the layoff and she did not receive COBRA open-enrollment

paperwork.3 It’s not clear how problems with COBRA health

insurance can be an ADA violation. Regardless, the judge

granted summary judgment for Kenco because a third-party

administrator was responsible for the laid-off employees’

COBRA-related benefits. McCurry did not challenge this

ruling—or even mention the ADA claim—in her opening

brief on appeal, raising it only in her reply brief. That’s a

waiver. Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.

2005).

C. Section 1981 Claim Against Mars

Section 1981 provides a federal remedy against racial dis-

crimination in private employment. Johnson v. Ry. Express

Agency, Inc., 421 U.S. 454, 459–60 (1975). Kenco, not Mars,

3Referring to the Consolidated Omnibus Budget Reconciliation Act of

1985, 29 U.S.C. §§ 1161–1168.

No. 18-3206 10

was McCurry’s employer, but an entity other than the actual

employer may be considered a “joint employer” for purpos-

es of § 1981 if it exercised significant control over the em-

ployee. Whitaker v. Milwaukee County, 772 F.3d 802, 810 (7th

Cir. 2014).

McCurry contends that Mars was her joint employer be-

cause Mars contracted with Kenco and Mars’s regional

distribution manager attended some meetings at the

Manteno warehouse. That’s clearly not enough to establish

significant control. See Love v. JP Cullen & Sons, Inc., 779 F.3d

697, 702–03 (7th Cir. 2015) (holding that where a general

contractor provided instructions to a supervisor employed

by a subcontractor, “[t]his minimal supervision” did not

constitute significant control). Nothing in the agreement

between Kenco and Mars establishes joint control over the

warehouse employees. Kenco issued McCurry’s paychecks

and provided her benefits. Kenco conducted her perfor-

mance reviews and issued the disciplinary warning she

complains of here. As applied to Mars, the § 1981 claim is

baseless for the additional reason that there is no evidence

that it was a joint employer.

D. Conspiracy Claim Against the Kenco Defendants and

Mars

In order to prove a conspiracy claim under 42 U.S.C.

§ 1985(3), a plaintiff must establish:

(1) the existence of a conspiracy; (2) a purpose

of depriving a person or class of persons of

[the] equal protection of the laws; (3) an act in

furtherance of a conspiracy; and (4) an injury

to person or property or a deprivation of a

right or privilege granted to U.S. citizens.

No. 18-3206 11

Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th Cir.

1999). The predicate injury at issue here is employment

discrimination. Because summary judgment for the defend-

ants was entirely proper on all of McCurry’s employment-

discrimination claims, the conspiracy claim necessarily fails.

E. Sanctions

This appeal represents a shameful waste of judicial re-

sources. We take this opportunity to reiterate that district

judges may require strict compliance with local summary-

judgment rules. Ammons, 368 F.3d at 817. The rules exist to

ensure the fair and expeditious resolution of legal controver-

sies and are well tailored to bring order and intelligibility to

the summary-judgment process. Litigants and attorneys may

chafe under the rules from time to time, “but the kind of

organization the rules require must occur sooner or later,

and the system as a whole is better served if it happens

sooner.” Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999).

Moreover, “[t]he purpose of an appeal is to evaluate the

reasoning and result reached by the district court.” Jaworski

v. Master Hand Contractors, Inc., 882 F.3d 686, 690 (7th Cir.

2018). The rules of appellate procedure are designed “to

make appellate briefs as valuable an aid to the decisional

process as they can be.” Id. (quotation marks omitted).

Noncompliance with appellate rules wastes time and re-

sources and frustrates the review process. Sanctions are

appropriate when the rules are violated—especially when

the violations are multiple and flagrant, as they are here.

Rule 38 of the Federal Rules of Appellate Procedure per-

mits us to impose sanctions if an appeal is frivolous: “If a

court of appeals determines that an appeal is frivolous, it

No. 18-3206 12

may, after a separately filed motion or notice from the court

and reasonable opportunity to respond, award just damages

and single or double costs to the appellee.” An appeal is

frivolous if the appellant’s claims are cursory, totally unde-

veloped, or reassert a previously rejected version of the facts.

See Jaworski, 882 F.3d at 691. An appeal is also frivolous if it

presents arguments that are so insubstantial that they are

guaranteed to lose. Berwick Grain Co. v. Ill. Dep't of Agric.,

217 F.3d 502, 505 (7th Cir. 2000).

McCurry’s appeal rests on factual assertions that were

excluded from consideration below because McCurry disre-

garded several provisions in the local summary-judgment

rule. As we’ve explained, there is no basis to disturb that

ruling even if McCurry had challenged it, which she did not.

Her appellate arguments are insubstantial to the point of

incoherence and had no chance of prevailing in this court.

“The result has been the harassment of opposing parties,

insult to judicial officers, and waste of limited and valuable

judicial resources.” McCready v. eBay, Inc., 453 F.3d 882, 892

(7th Cir. 2006).

The patently frivolous nature of this appeal isn’t the only

thing that troubles us. The hopelessness of McCurry’s cause

didn’t deter her lawyer, Jordan Hoffman, from signing and

submitting a bizarre appellate brief laden with assertions

that have no basis in the record and arguments that have no

No. 18-3206 13

basis in the law. 4 In so doing, Hoffman violated Rule 28 of

the Federal Rules of Appellate Procedure.

Rule 28 requires “a concise statement of the case” that

sets out “the facts relevant to the issues submitted for re-

view” and a summary of the argument containing “a suc-

cinct, clear and accurate statement of the arguments made in

the body of the brief.” FED R. APP. P. 28(a)(6)–(7). McCurry’s

brief, which spans 86 interminable pages, is neither concise

nor clear. 5 It is chock-full of impenetrable arguments and

unsupported assertions, and it is organized in ways that

escape our understanding. Here is a representative sample:

• McCurry’s brief seeks review of a variety of interlocu-

tory orders without specifying why the orders were

deficient. These “orders” include the “Amended

Complaint,” “multiple waivers of service,” and a rou-

tine protective order allowing the parties to mark dis-

covery documents “confidential.”

• The brief accuses the defendants of criminal obstruc-

tion of justice and in a footnote asserts that

4 He signed the brief on behalf of “plaintiff-appellant Mary Madison,”

who is not a party in this case. This is yet another way in which the brief

is “out of the ordinary.” Pecher v. Owens-Ill., Inc., 859 F.3d 396, 403 (7th

Cir. 2017).

5 The term “brief”—derived from the Latin brevis, meaning short—seems

inapt here. 1001 LEGAL WORDS YOU NEED TO KNOW: THE ULTIMATE GUIDE

TO THE LANGUAGE OF THE LAW 16 (Jay M. Feinman & James E. Clapp eds.,

2003). The brief is also a typographical nightmare. It uses five different

fonts and various font sizes, including three different fonts in one

sentence, and capitalizes words seemingly at random.

No. 18-3206 14

“[d]efendants’ schemes were furthered by the US

Mail.” 6

• The brief invokes res judicata, collateral estoppel, and

judicial estoppel, none of which apply, none of which

were asserted below, and all of which are therefore

waived. Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d

794, 803 (7th Cir. 2010).

• The brief includes a section entitled

“GAMESMANSHIP,” which contains the following

assertion: “Defendants have been ‘gaming’ the sys-

tem.” There is nothing else in the “gamesmanship”

section.

• The brief contains many sentences like this one (all

errors in original):

McCurry experiences a change in fringe

benefits; harsher scrutiny; failure to be

promoted; lack of opportunities; lack of

professional standing; economic sanctions;

hostile work environment that led to an

employee being shot on the premise, vari-

ous verbal and physical assaults of African-

Americans by Caucasian employees of use

of gun violence, vehicular assault, amongst

other forms of violence, the ever looming

6 When we questioned Hoffman about this outrageous accusation at oral

argument, he apologized. He then opined that “civil obstruction, if

anything,” took place. There is no civil cause of action for obstruction of

justice.

No. 18-3206 15

threat that a racially motivated altercation

or riot may ensue and physical damage to

McCurry’s auto amongst actions/activities/

conduct.

There is more, but the point is made. Bad writing does

not normally warrant sanctions, but we draw the line at

gibberish. See Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir.

2011) (ordering a lawyer to show cause why he should not

be disciplined in part because, among other reasons, his

appellate brief was not “reasonably coherent”).

We sometimes invoke Rule 28 when the briefing is too

abbreviated and sketchy to facilitate review. See, e.g., John v.

Barron, 897 F.2d 1387, 1393 (7th Cir. 1990); Zelazny v. Lyng,

853 F.2d 540, 542 n.1 (7th Cir. 1988); Sanchez v. Miller, 792 F.2d

694, 703 (7th Cir. 1986). But there is no functional difference

between a scanty brief and an overly long, borderline-

unintelligible brief. Both require us to supply the legal

research and organization to make sense of the party’s

arguments. Smith v. Town of Eaton, 910 F.2d 1469, 1471 (7th

Cir. 1990). In both cases we are frustrated in performing our

review function and in evaluating the judgment below. Id.

Although we disregarded McCurry’s factual assertions

because they are unsupported (given the judge’s enforce-

ment of Rule 7.1(D)), we conclude with an observation about

their substance. McCurry’s brief asserts (among other things)

that Kenco and Mars fostered a workplace environment

where racist acts, including the attempted murder (by

forklift) of an African-American employee, went unpun-

ished. It asserts that consumers of Mars products “could

have been affected by food products contaminated by ver-

min or their feces.” And it asserts that Kenco’s management

No. 18-3206 16

“engaged in various forms of psychological warfare” by

“contriving scenarios in which African Americans were

publicly reprimanded and falsely accused of ‘smelling like

weed.’” These baseless assertions are shockingly irresponsi-

ble.

Because we have a duty to “maintain public confidence

in the legal profession” and “protect[] the integrity of the

judicial proceeding,” Doe v. Nielsen, 883 F.3d 716, 718 (7th

Cir. 2018) (quotation marks omitted), we confronted

Hoffman about his brief at oral argument. He replied that he

is a “solo practitioner” who tries “to get the help of … clients

and whoever can provide help to [him]” and then “merge[s]

that information.” Whatever that means, it in no way excus-

es this unprofessional conduct.

Hoffman’s filings fall far below the reasonable standards

of practice. We therefore order him to show cause within

14 days why he should not be sanctioned or otherwise

disciplined under Rules 28 and 38 of the Federal Rules of

Appellate Procedure. We also direct the clerk of this court to

send a copy of this opinion to the Illinois Attorney Registra-

tion and Disciplinary Commission for any action it deems

appropriate.

AFFIRMED; ORDER TO SHOW CAUSE ISSUED