November 30, 2017
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. l:15-cv-01359
- Richard L. Young, Judge.
Easterbrook and Manion, Circuit Judges, and Lee, District
MANION, CIRCUIT JUDGE.
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.
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.
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." 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.
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
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.
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.
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.
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. 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.
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