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Ennin v. CNH Industrial America, LLC

United States Court of Appeals, Seventh Circuit

December 27, 2017

Abdullah Ennin, Plaintiff-Appellant,
v.
CNH Industrial America, LLC, Defendant-Appellee.

          Argued November 30, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:15-cv-01359 - Richard L. Young, Judge.

          Before Easterbrook and Manion, Circuit Judges, and Lee, District Judge [*]

          MANION, CIRCUIT JUDGE.

         Abdullah Ennin appeals from a judgment in favor of his employer in this discrimination case. He claims that CNH Industrial America terminated his employment because of his race and national origin, disability, and decision to take leave under the Family and Medical Leave Act of 1993. He also alleges that CNH interfered with his rights under the FMLA, conspired to violate his federal rights under 42 U.S.C. §§ 1985 & 1986, and engaged in negligent supervision in violation of Indiana law.

         We agree with the district court in all respects. First, we conclude that by not filing a surreply brief in the district court, Ennin waived the admissibility of certain evidence that CNH attacked as inadmissible. Ennin had introduced the evidence in an attempt to show that CNH terminated him on a later date than it claimed, that is, after it knew that Ennin had been disabled and taken FMLA leave. Without the evidence, the record is undisputed that CNH terminated Ennin's employment before it had knowledge of the alleged disability or his FMLA leave. Second, nothing in the record supports Ennin's argument that CNH's stated reasons for terminating his employment were pretext for any sort of discrimination. Third, CNH did not interfere with Ennin's right to take FMLA leave. And finally, Ennin's federal conspiracy and state law negligent-supervision claims necessarily fail because they are derivative of underlying violations of federally protected rights. Without any underlying violations, Ennin cannot sustain these claims. Therefore, we affirm the judgment below.

         I. Background

         Ennin, who was born in Ghana and is a naturalized American citizen, began working for CNH Industrial America on January 3, 2012. CNH "designs, produces and sells agricultural and construction equipment, trucks, commercial vehicles, buses and specialty vehicles, in addition to a broad portfolio of powertrain applications."[1] Ennin was the "Export Second Shift Operations Supervisor" and had dozens of hourly workers reporting to him. He reported to Export Operations Manager Michael Lewis, who in turn reported to Stephen Lincoln. Ennin was the only black supervisor at his facility in Lebanon, Indiana.

         After working at CNH with no incident for more than two years, Ennin received a written warning for misconduct in May 2014. He had gotten into a verbal altercation with another supervisor over the volume of a radio playing in the break room. According to the warning, Ennin's inappropriate behavior was witnessed by two of his own hourly employees. Ennin was warned that his behavior was not acceptable because, as a supervisor, he had to set a better example for his subordinates. Both Ennin and Lewis signed the written warning.

         Ennin ran into more trouble a few months later. He was on his way to work on November 17, 2014, when his car broke down. At 1:43 PM, 17 minutes before his shift was to begin, Ennin notified Lewis that he would be late to work. Ennin then called his hourly employee Gonzalo Chavez-the lead hourly employee on his shift-to ask for help. Chavez had already clocked in, but he left CNH's facility at 2:00 PM and went to help Ennin. It turned out that Ennin's car had run out of gas, so Chavez brought Ennin some gas and then both returned to CNH at 2:46 PM. Upon their arrival, Ennin permitted Chavez to follow him through the supervisor's entrance after Ennin had swiped his badge, in violation of company policy. And to top it off, Ennin neglected to adjust Chavez's time sheet in CNH's timekeeping system to reflect that Chavez had been off the premises for 46 minutes while clocked in.

         Once the events of November 17 were reported to Human Resources, Ennin was called in for a November 19 meeting with Lewis, Lincoln, and HR manager Stacy Darlin. They asked Ennin why he had permitted Chavez to enter the facility without swiping his own badge; Ennin responded that everyone does it and he had done it many times previously without being reprimanded. With respect to the timesheet issue, Ennin claimed that he didn't know Chavez was at work when he called, but Chavez had already told HR that he did tell Ennin he had already clocked in. In the end Lewis, Lincoln, and Darlin told Ennin that his actions were unacceptable, but didn't inform him of a final decision. Nevertheless, Ennin thought after the meeting that he was certain to be fired.

         Darlin, Lewis, and Lincoln say they met separately shortly after their November 19 meeting with Ennin and determined that Ennin should be fired for his multiple violations of company policy. According to them, they decided to let Ennin know the next day. But later in the afternoon on November 19, Ennin texted Lewis and asked to go home because his hemorrhoids were acting up. Lewis agreed. But Ennin did not come to work on November 20. Instead, he called his doctor and scheduled a previously planned hemorrhoidectomy for November 21. Ennin requested and received leave from CNH's third-party administrator, Prudential, and said that he would return to work by January 1.

         On November 20, Darlin received notice that Ennin had requested leave and would not be at work that day, so she could not inform him of his termination at work. Ennin then had his surgery, a minor procedure which allowed him to return home the same day. On December 1, while Ennin was still on leave, Darlin learned that Prudential had approved Ennin for short-term disability benefits from November 19 through December 14. That same day, she sent a letter to Ennin informing him that his employment had been terminated.[2] The letter indicated that the decision was made on November 19 and stated that Ennin was fired because of the November 17 incident with Chavez and Ennin's subsequent refusal to take responsibility for his actions.

         Ennin sued CNH, arguing that he was fired because of his race, national origin, disability (related to the hemorrhoidectomy), and decision to take FMLA leave. On summary judgment, Ennin attempted to introduce evidence to show that CNH did not decide to terminate his employment until December 1. Establishing that later termination date would have allowed Ennin to argue that the decision-makers knew when they fired him that he had had surgery and that he had taken FMLA leave. However, CNH argued in its reply brief that Ennin's evidence was hearsay and unauthenticated. Ennin never filed a surreply brief, even though the local rules of the Southern District of Indiana permitted him to do so as of right to respond to evidentiary objections. As a ...


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