Weekly Case Digests March 25, 2019 March 29, 2019.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Peerless Network, Inc., et al. v. MCI Communications Services, Inc., et al.

Case No.: 18-2747

Officials: WOOD, Chief Judge, and BRENNAN and ST. EVE, Circuit Judges.

Focus: Breach of Contract

This case takes us into the complex world of telecommunications, but the question we confront is simple: Was the district court correct to grant partial final judgment under Federal Rule of Civil Procedure 54(b) on some claims, despite their significant factual overlap with pending claims? We conclude that it was not. We also conclude that a genuine issue of fact persists with respect to certain breach-of-contract claims. We therefore vacate the Rule 54(b) judgment on certain counts, dismiss in part for lack of jurisdiction, and otherwise reverse and remand.

Vacated in part. Remanded and Reversed in part.

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7th Circuit Court of Appeals

Case Name: Anthony Walker v. Ingersoll Cutting Tool Company

Case No.: 18-2673

Officials: FLAUM, KANNE, and HAMILTON, Circuit Judges.

Focus: Title VII Violation Sufficiency of Evidence

After Anthony Walker was involved in a physical altercation with another employee of Ingersoll Cutting Tools, the company discharged him. He sued Ingersoll, alleging racial discrimination under Title VII and retaliatory discharge under Illinois law. The district court granted summary judgment for Ingersoll on all claims. On appeal, Walker abandoned his Title VII racial discrimination claims. Because Walker did not identify evidence of a causal connection between his termination and conduct protected by Illinois law, we affirm the district court's grant of summary judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Douglas Holloway v. Soo Line Railroad Company

Case No.: 18-2431

Officials: FLAUM, BARRETT, and SCUDDER, Circuit Judges.

Focus: Wrongful Termination

Douglas Holloway's year-and-a half long employment with Canadian Pacific ended after he received multiple suspensions for violating safety standards and other work rules. The final chapter came when Holloway sustained an injury in a vehicle collision while not wearing a seatbelt. When combined with Holloway's prior record of infractions, this new safety-standard violation was enough for the company to terminate Holloway. In his ensuing lawsuit, Holloway alleged he was fired not for violating Canadian Pacific's rules, but instead for reporting a workplace injury. We agree with the district court that the record evidence does not support his contention and therefore affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Fred Gates v. Board of Education of the City of Chicago

Case No.: 17-3143

Officials: MANION, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Title VII Violation

PlaintiffFred Gates testified that his direct supervisor, Rafael Rivera, addressed him with the N-word twice, and once threatened to write up his "black ass." The district court granted the employer's motion for summary judgment on Gates's claim for a racially hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2. In granting summary judgment for the defendant-employer, the district court noted that Gates faced a high bar, "as '[t]he workplace that is actionable is one that is 'hellish.'" Gates v. Board of Education of the City of Chicago, No. 15-CV-1394, 2017 WL 4310648, at *13 (N.D. Ill. Sept. 28, 2017), quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997) (alteration in original). The court ultimately decided that Rivera's comments were not severe or pervasive enough to rise to the level of a hostile work environment, an adverse employment action that could entitle Gates to relief under Title VII. Id. at *15.

Gates is entitled to a trial on his hostile environment case, but he waived or forfeited all of his remaining claims. He argues, though, that he did not forfeit his Title VII retaliation claim in the district court. We disagree. The Board's motion sought summary judgment on all claims. In opposing summary judgment in the district court, Gates failed to assert that he was subject to a hostile work environment in retaliation for complaining about the discrimination he says he suffered. He did not specifically argue that Rivera or Principal Brandt created a hostile work environment because he reported their discriminatory conduct to Jacob-El or the EEOC. Gates did argue that he was retaliated against, but only in the form of not being promoted and being written up by Rivera. In his summary judgment memorandum, Gates also discussed two of the instances of racially-harassing conduct that he used to support his hostile work environment claimthe incident in which Rivera threatened to write up his "black ass" and the library incident in which Rivera used the N-word. However, he never specifically argued that this conduct was retaliatory. Perhaps Gates could have linked those incidents to his claims of retaliation, but he did not. The district court was not required to address a claim or theory that plaintiffdid not assert.

The district court's grant of summary judgment on Gates's hostile work environment claim is REVERSED and the case is REMANDED for further proceedings on that claim consistent with this opinion. In all other respects, the judgment of the district court is AFFIRMED.

Reversed and Remanded in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: Danny R. Ruark v. Union Pacific Railroad Company

Case No.: 17-2429

Officials: FLAUM, ROVNER, and SCUDDER, Circuit Judges.

Focus: Court Error Abuse of Discretion

The Federal Employers Liability Act (FELA), 45 U.S.C. 51-60, was enacted more than a hundred years ago to compensate railroad employees for injuries they receive on the job. Ruark was an employee of the Union Pacific Railroad when a hydraulic rail drill malfunctioned and sprayed him with hot oil. He sought relief under FELA using the legal doctrine of "res ipsa loquitur," a doctrine that asks a finder of fact to infer liability when (as the Latin is often translated) "the thing speaks for itself." Because of the burden-shifting nature of the doctrine, it requires some baseline conditionsnamely that the defendant was in control of the instrumentality that caused the injury and that the plaintiff was not also negligent. The district court found that these conditions were not met and thus the jury should not be instructed that they could assume that "the matter spoke for itself" under the doctrine. We agree and find that the district court did not abuse its discretion by refusing to grant Ruark a continuance before trial. We affirm on both points.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Derrick W. Johnson

Case No.: 18-2023

Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Jury Instructions

Derrick Johnson appeals his conviction for possession of a firearm in furtherance of a drug trafficking crime. Police arrested him at a Madison, Wisconsin, bar carrying five hydrocodone pills, two cell phones, gem packs containing marijuana residue, a plastic bag of antihistamine, and a loaded pistol. Johnson pled guilty to possession of a controlled substance with intent to deliver but went to trial on the firearm charge. On appeal, Johnson claims the district court committed reversible error in three ways. First, he claims the jury instructions misstated the law and confused the jury. Second, he contends that the district court should not have admitted the government's proffered expert testimony. Lastly, Johnson argues the government presented insufficient evidence to support his conviction. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Todd A. D'Antoni v. United States of America

Case No.: 18-1358

Officials: FLAUM, BARRETT, and SCUDDER, Circuit Judges.

Focus: Sentencing Guidelines

Todd D'Antoni received an enhanced sentence under the career-offender provision of the 1990 United States Sentencing Guidelines, based on a prior felony drug conviction and a prior felony "crime of violence" conviction. See U.S.S.G. 4B1.1 (1990). Relevant here, the provision's "crime of violence" definition included a residual clause, encompassing any felony "involv[ing] conduct that present[ed] a serious potential risk of physical injury to another." Id. 4B1.2(1)(ii). The Guidelines were mandatory as applied to D'Antoni because he was sentenced well before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines must be advisory to comply with the Constitution.

At issue in this case is whether D'Antoni's sentence should nevertheless be affirmed because "conspiracy," "murder," and "manslaughter" were listed as crimes of violence in the application notes to the 1990...