Appeal from the United States District Court for the Northern District of Illinois, Western Division.
No. 94 C 50411 Philip G. Reinhard, Judge.
Before HARLINGTON WOOD, JR., KANNE and DIANE P. WOOD, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge.
Juana Gonzalez ("Gonzalez") sued Ingersoll in a two count complaint alleging in Count I that Ingersoll had discriminated against her because of her race and/or ethnic origin in violation of Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, 42 U.S.C. sec. 2000e-2, and in Count II, that Ingersoll had discriminated against her with respect to the making and enforcement of an alleged employment contract in violation of 42 U.S.C. sec. 1981. Gonzalez subsequently amended her complaint adding an additional claim of retaliation under 42 U.S.C. sec. 2000e-3. Finding Gonzalez had failed to provide sufficient factual support for her claims, the district court dismissed Counts I and II. After Gonzalez failed to file a timely response to Ingersoll's summary judgment motion as to Count III, the district court dismissed Count III of the amended complaint and dismissed the suit in its entirety. The district court denied Gonzalez's motions to reconsider her previous motion to accept for filing her late response and to vacate the grant of summary judgment. This appeal followed. We affirm the entry of summary judgment in favor of Ingersoll on all counts and find that the district court did not abuse its discretion by failing to consider Gonzalez's untimely response to Ingersoll's motion for summary judgment as to Count III.
Gonzalez, who is both black and of Cuban descent, started working for an Ingersoll subsidiary as an insert grinder in 1979. She transferred to Ingersoll's employ in 1980 and was employed as a panel assembler. On October 31, 1986, Gonzalez was given notice that declining orders would require a layoff. After being laid off in February 1987, Gonzalez was recalled to work as a bonder in Ingersoll's machine shop in February 1989.
On March 20, 1989, Gonzalez was transferred to Ingersoll's Production Machinery Division, Assembly Department as a Basic Electrical Assembler with a skill classification of F-12. Gonzalez remained an F-12 Basic Electrical Assembler until December 1, 1993, when she was notified that she would be laid off again because of declining work orders. According to Ingersoll's layoff policy employees were to be laid off by length of service, within a job classification, within a department. After receiving 90 days of pay and benefits continuation, Gonzalez was laid off in February 1994. During this layoff, Ingersoll laid off 137 employees. Of these 137 employees, seven were from the Production Machinery Assembly Department, known as the Electrical Department, in which Gonzalez worked. Both Gonzalez and David Thompson ("Thompson"), a white male, were laid off, as were two employees with F-13 rating classifications and three employees with F-14 skill classifications. *fn1
In July 1994, Gonzalez filed a charge of discrimination with the Illinois Department of Human Rights, and the Equal Employment Opportunity Commission ("EEOC"), alleging racial and national origin discrimination regarding her February 1994 layoff. In September 1994, after unsuccessfully attempting to contact Gonzalez by phone, Ingersoll notified Gonzalez by correspondence of a recall of laid-off employees and asked her if she was interested in being recalled. Thompson had been recalled about three weeks earlier. Ingersoll manager, Brian Howard, stated that Thompson was recalled earlier than Gonzalez because attempts to contact Gonzalez by telephone had been unsuccessful.
On October 17, 1994, Gonzalez was recalled as an F-12 Panel Wire Assembler in Ingersoll's Pike Road box subassembly plant because the F-12 classification for electrical assemblers had been eliminated and Gonzalez was not qualified for an F-13 classification. Although the panel wirer position had different job requirements than the electrical assembler position, the F-12 classification remained the same as were the pay and benefits. In November 1995, Gerald McCalmon ("McCalmon"), Ingersoll's Manager of Production Machinery, decided to move the box subassembly plant from Ingersoll's Pike Road facility to its Eddy Avenue facility for business reasons. At the time of his decision, McCalmon was unaware that Gonzalez had previously filed charges of discrimination against Ingersoll.
Gonzalez was transferred to Ingersoll's Eddy Avenue facility because she was the only employee performing box assembly work in November, 1995. On November 6, 1995, Marion Smith ("Smith") became Gonzalez's supervisor. Smith immediately began having problems with Gonzalez's absenteeism, attitude and quality of work. During the next two weeks Gonzalez left work several times before the end of her shift for personal reasons without notifying or obtaining permission from her supervisor. Smith warned Gonzalez that she must immediately begin working her scheduled hours and that further absenteeism could result in her being released to personnel. *fn2 However, Gonzalez did not handle Smith's counseling well. When Smith raised these issues, Gonzalez became verbally abusive towards Smith, using foul language and accusing a fellow employee of lying. After Gonzalez's tirade, Smith gave Gonzalez another warning about her absenteeism and attitude.
Gonzalez also had difficulty performing her work. Although her box subassembler job was one of the most basic subassembly positions, Gonzalez had about a fifty percent rework ratio on her boxes. Almost half of Gonzalez's boxes were unacceptable and had to be reworked. Gonzalez's error rate was higher than any other Ingersoll employee. Despite repeated warnings about her performance, Gonzalez's performance did not improve.
In January 1996, Ingersoll's Chief Executive Officer, Fred Wilson ("Wilson"), met with Gonzalez to discuss her performance, attendance and attitude problems. Wilson told Gonzalez that she had sixty days to show improvement. In particular, Wilson told Gonzalez that her performance and absenteeism problems must not continue in the future and that her quality and productivity must also improve. After Gonzalez's performance had not improved within 60 days, Smith released Gonzalez to Ingersoll's Personnel Department. Personnel then reassigned Gonzalez to the Custodial Department; however, her pay was not reduced. Neither Smith nor McCalmon ever mentioned anything to Gonzalez about her lawsuit.
Much of the procedural history in this suit provides a primer on how lawyers should not manage their litigation practices. On December 30, 1994, after receiving a right-to-sue letter from the EEOC, Gonzalez filed a two count complaint against Ingersoll claiming discrimination on account of race and/or ethnic origin in violation of Title VII of the Civil Rights Act, 42 U.S.C. sec. 2000e-2, as amended, and discrimination with respect to the making and enforcement of a contract in violation of 42 U.S.C. sec. 1981. Following the close of discovery on October 2, 1995, Ingersoll filed a motion for summary judgment along with a Local Rule 12(m) statement of uncontested facts. The district court ordered Gonzalez to respond on or before February 28, 1996. After making an oral motion for the extension of time to respond, Gonzalez was granted an extension to respond until March 8, 1996. When Gonzalez had not responded by March 13, 1996, Ingersoll filed a Notice of Readiness for Decision and advised the district court that since Gonzalez had failed to respond to its summary judgment motion it would not be filing a reply brief.
Eleven days after her response was due, March 19, 1996, Gonzalez filed a motion requesting additional time to respond. Gonzalez presented the district court with four reasons to grant her extension:
(1) Ingersoll's counsel consented to an extension until March 20, 1996, (2) it was in the interest of justice, (3) no party would be prejudiced by the delay, and (4) because of another case her ...