Joseph L. Reed v. Freedom Mortgage Corporation

Joseph L. Reed sued his former

employer, Freedom Mortgage Company, under the Illinois

Human Rights Act, alleging race-based discrimination. After

concluding that Reed lacked evidence of racial bias, the district

court granted summary judgment in favor of Freedom Mortgage.

Reed challenges the court’s decisions on evidentiary

2 No. 16-3661

matters as well as the court’s ultimate conclusion on summary

judgment. We affirm.

I.

Freedom Mortgage is a full service residential mortgage

lender based in New Jersey, with offices around the country.

Reed and co-worker Felicia Bates initially came to work for the

company as temporary employees from a staffing agency. On

November 1, 2012, Freedom Mortgage hired Reed and Bates as

full-time Broker Liaisons at its Downers Grove, Illinois office

at the recommendation of Regional Operations Manager

Cheryl Bidstrup. Reed and Bates reported directly to Bidstrup

who, in turn, reported to the Regional Branch Manager, Vickie

Sperry. Reed and Bates are African-American and both

Bidstrup and Sperry are white.

The regular hours of operation for the Downers Grove

office were 8 a.m. to 5 p.m., although some employees worked

other schedules with the permission of senior management.

Other employees worked a different schedule in order to

accommodate accounts in other time zones. Freedom Mortgage

had an employee handbook that contained the company’s

official Attendance Policy, which stated that seven or more

absences, late arrivals, or early departures in a twelve month

period could trigger disciplinary action, including termination

of employment. Reed understood that he was expected to start

work at 8 a.m. each day. He assumed that his co-workers were

all on the same schedule but he admitted that other employees

may have had permission to work alternate schedules of which

he was not aware.

No. 16-3661 3

On January 21, 2013, Bidstrup sent an email to the twentynine

employees who reported directly to her:

Vickie and I pride ourselves on being flexible with

our staff and in making the Chicago branch a pleasant

place to work. Unfortunately, however, our

good natured dispositions with regard to the office

atmosphere have been and are being taken advantage

of. Therefore, I find it necessary to reiterate the

following requirements.

• Our work hours are 8:00 am to 5:00 pm in the

Downers Grove physical location with an hour for

lunch and 2 - 15 minute breaks. Any deviation from

these hours or location must be prior approved by

Vickie or me. There will be no further “setting your

own hours” and assuming that you can stay until

6:00 pm to make up for coming in at 9:00 am.

• If you are going to be absent or late, you must

contact me prior to 8:00 am with the reason for your

absence or tardiness. If I am unavailable, your

voicemail message will be time stamped.

• The technical ability to work from home is to be

utilized for after-hours work only and only when

needed. Working from home during regular business

hours must be prior approved by Vickie or me

and will only be approved in an extreme emergency

and is at our discretion. There are only 3 Operations’

employees who currently work remotely on a

regular basis and have been already approved to do

4 No. 16-3661

so. No additional remote workers are being approved

at this time.

R. 50-17, AT 2.

Four days after sending that email, Bidstrup issued a verbal

warning to Reed for violating the Attendance Policy. And four

days after that, Bidstrup issued to Reed a written warning for

absenteeism and/or tardiness when he arrived at 9:30 a.m.

without notifying his manager in advance. Between February

14, 2013 and April 1, 2013, Reed was absent from work on at

least eight days and could not recall whether he had prior

approval. Between March 6 and April 10 of that same year, he

clocked in late eleven times, sometimes just a few minutes after

8:00 a.m., but more than a half hour late on three occasions.

Bates also conceded that she had violated the Attendance

Policy numerous times.

Bidstrup eventually informed Sperry that Reed and Bates

were repeatedly violating the Attendance Policy. On April 9,

2013, Bidstrup sent out another email to all of the Downers

Grove employees reminding them that excessive absences or

tardiness could trigger disciplinary action including termination

of employment. Because Reed continued to violate the

Attendance Policy after receiving oral and written warnings,

and because she received complaints from two employees

about having to cover Reed’s work in his absence, Bidstrup

asked the receptionist at the Downers Grove office to monitor

Reed’s attendance. At some point during his six month tenure,

Reed applied for the position of Junior Underwriter but was

not offered the job. Reed was also denied opportunities to

work from home.

No. 16-3661 5

In 2013, a decline in business prompted management at

Freedom Mortgage to implement a reduction in force at its

locations across the country. At the Downers Grove branch, the

position of Broker Liaison was gradually eliminated through

multiple rounds of terminations. Among the first three Broker

Liaisons selected for termination at the Downers Grove branch

were Reed and Bates. Bidstrup and Sperry explained to senior

management that they selected Reed and Bates because of their

history of attendance and disciplinary problems, and because

they had less seniority than others in the office. In April 2013,

after working for the company for approximately six months,

Reed and Bates were terminated in the reduction in force,

along with a white employee. The remaining Broker Liaisons

were also eventually terminated, and no one was hired to

replace them. The Downers Grove office closed entirely in

August 2014. Certain functions and positions, including those

of Underwriters and Junior Underwriters, subsequently

worked remotely for the Fishers, Indiana office.

After their terminations, Reed and Bates1 sued Freedom

Mortgage for race-based discrimination under the Illinois

Human Rights Act.2 See 775 ILCS 5/1-101 et seq. Reed alleged

that he was subjected to disparate treatment and ultimately

1 Bates’ claims were voluntarily dismissed in 2016 and she has taken no

part in the appeal.

2 Reed originally brought his suit in the Circuit Court of Cook County.

Freedom Mortgage removed the suit to federal court based on diversity

jurisdiction. Reed is a citizen of Illinois. Freedom Mortgage is incorporated

in New Jersey, has its principal place of business in New Jersey and is

therefore a citizen of New Jersey.

6 No. 16-3661

terminated from employment on the basis of race. On crossmotions

for summary judgment, the district court concluded

that Reed had no evidence that the defendant acted against

him on account of his race. In particular, the court found that

Reed had no evidence that he was treated less favorably than

similarly situated non-African-American employees, that he

failed to show that the denial of his request to work from home

and the denial of his promotion to the position of Junior

Underwriter were adverse employment actions, and that he

could not make out a claim for hostile work environment. The

court therefore granted judgment in favor of Freedom Mortgage

and denied Reed’s motion for summary judgment. Reed

appeals.

II.

On appeal, Reed contends that the court should have

credited a negative inference created by the defendant’s failure

to produce certain formal attendance records during discovery.

He also objects to the court’s refusal to consider as evidence

three cell phone videos recorded by Bates. He argues that he

presented sufficient evidence to allow a reasonable jury to

conclude that Freedom Mortgage discriminated against him in

the company’s application and enforcement of its Attendance

Policy, and in his termination, all on the basis of race. Finally,

he asserts that the court erred in finding that he failed to make

out a claim for hostile work environment.

We review the district court’s grant of summary judgment

de novo, examining the record in the light most favorable to

Reed and construing all reasonable inferences from the

evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

No. 16-3661 7

242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070

(7th Cir. 2016). Summary judgment is appropriate when there

are no genuine disputes of material fact and the movant is

entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);

Anderson, 477 U.S. at 256; Yahnke, 823 F.3d at 1070. Illinois

courts apply the federal Title VII framework to claims of

discrimination made under the Illinois Human Rights Act, and

the parties agree that it is appropriate to apply the Title VII

framework here. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d

378, 383 (7th Cir. 2016); Zaderaka v. Illinois Human Rights

Commission, 545 N.E.2d 684, 687 (Ill. 1989) (noting that, in

analyzing employment discrimination actions brought under

the Human Rights Act, the Commission and the Illinois

appellate court have adopted the analytical framework set

forth in United States Supreme Court decisions addressing

claims brought under Title VII, and that the Illinois Supreme

Court would follow the same approach).

Reed proceeded under the burden-shifting analysis of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and the

district court evaluated the case using that framework. Under

McDonnell Douglas, Reed has the initial burden of establishing

that (1) he is a member of a protected class; (2) he was meeting

his employer's legitimate performance expectations; (3) he was

subjected to an adverse employment action; and (4) similarly

situated employees outside of his protected class were treated

more favorably by the employer. 411 U.S. at 802-03; David v.

Board of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th

Cir. 2017). No matter the framework employed, the ultimate

legal question “is simply whether the evidence would permit

a reasonable factfinder to conclude that the plaintiff's race,

8 No. 16-3661

ethnicity, sex, religion, or other proscribed factor caused the

discharge or other adverse employment action.” Ortiz v.

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

this standard, evidence must be considered as a whole,

rather than asking whether any particular piece of evidence

proves the case by itself. Id.

Before we assess the adequacy of Reed’s evidence, we must

first address whether the district court erred in declining to

consider the cell phone videos that Reed produced and in

refusing to apply the negative inference that Reed wished the

court to draw from the defendant’s failure to produce formal

attendance records during discovery. We review the district

court's evidentiary rulings for abuse of discretion. Griffin v.

Bell, 694 F.3d 817, 826 (7th Cir. 2012). The district court declined

to consider the cell phone videos because they were not

properly authenticated and because Reed’s counsel did not

timely include the videos in his appendix of exhibits. On

appeal, Reed’s lawyer challenges only the determination that

the videos were not properly authenticated, failing to address

the court’s second reason for excluding them. “When a district

court gives two independent, dispositive reasons for ruling

against a party, and the party challenges only one of those

grounds, any challenge to the alternate basis is waived and we

may affirm.” Griffin, 694 F.3d at 826. A failure to address a

court’s second rationale is an adequate basis to affirm the

court’s decision, but in any case, the videos were properly

excluded. Reed’s counsel sought to admit them to prove that

only African-American employees were required to begin

working at 8 a.m., but neither Reed nor Bates (who recorded

the videos) could recall the dates or times that the videos were

No. 16-3661 9

recorded. Reed could not say whether the videos were recorded

before or after Bidstrup’s email advising the workers

that they could no longer set their own hours. Moreover, Reed

conceded that the videos showed only a limited part of the

office. See Griffin, 694 F.3d at 826-27 (affirming exclusion of

photos and video that displayed only part of the relevant scene

and that bore no date or time stamp). There was no abuse of

discretion in declining to consider the videos.

Reed’s counsel also complains that the court should have

applied a negative inference to Freedom Mortgage’s failure to

produce certain documents during the discovery process.

Reed’s counsel requested “[a]ll documents that tend to

substantiate the allegations asserted in the Complaint.” R. 74-7,

at 11. He also requested “[a]ll documents relating to any

employees who made requests to work from home for the time

period of 2012 – present.” R. 74-7, at 10. Freedom Mortgage

objected to both requests on multiple grounds, including that

the requests were overly broad. In his first set of interrogatories,

Reed’s lawyer asked for identifying information regarding

each employee who was allowed to work from home and each

person who was disciplined as a result of violating the attendance

policy. R. 50-25, at 10. Freedom Mortgage again objected

to the requests on multiple grounds. Reed’s lawyer failed to

follow up with Freedom Mortgage on the objections and never

moved to compel production. Having failed to resolve this

simple discovery dispute, the plaintiff’s lawyer now seeks to

apply a rule from another circuit, where a court held that a

party’s wilful refusal to comply with a subpoena may give rise

to an inference that the withheld information was favorable to

its opponent. International Union, United Auto., Aerospace &

10 No. 16-3661

Agric. Implement Workers of America v. National Labor Relations

Bd., 459 F.2d 1329, 1336 (D.C. Cir. 1972) (“Simply stated, the

rule provides that when a party has relevant evidence within

his control which he fails to produce, that failure gives rise to

an inference that the evidence is unfavorable to him.”). In this

circuit, a negative inference may arise when a party intentionally

destroys documents in bad faith. Faas v. Sears, Roebuck &

Co., 532 F.3d 633, 644 (7th Cir. 2008). A document is destroyed

in bad faith if it is destroyed for the purpose of hiding adverse

information. Id. Reed’s counsel presents no evidence of bad

faith or the hiding of information by Freedom Mortgage. The

record shows nothing more than the most ordinary kind of

discovery dispute regarding overly broad document requests

and interrogatories. Once Freedom Mortgage objected, the

onus was on Reed’s counsel to attempt to resolve the dispute

or compel production. Having failed to do either, there can be

no complaint about missing evidence. The negative inference

rule is simply inapplicable to the scenario presented here.

We turn to the McDonnell Douglas analysis. No one disputes

that Reed is a member of a protected class or that his termination

was an adverse employment action. The parties dispute

whether he was performing to his employer’s satisfaction and

whether similarly situated employees outside his class were

treated more favorably. Reed conceded that he had received

oral and written warnings for violating the Attendance Policy,

and that he continued to be absent and late on multiple

occasions after his employer reiterated both the policy and the

consequences for violating it. The question is whether he

produced any evidence that similarly situated non-African-

American employees were treated more favorably. “Similarly

No. 16-3661 11

situated” means directly comparable in all material respects.

Perez v. Thorntons, Inc., 731 F.3d 699, 704 (7th Cir. 2013). The

objective is to eliminate other possible explanatory variables

such as differing roles, performance histories, or decisionmaking

personnel, in order to isolate the critical independent

variable of discriminatory animus. Perez, 731 F.3d at 704;

Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). “The

proposed comparator need not be identical in every conceivable

way, however, and courts must conduct a ‘common-sense

examination.’” Perez, 731 F.3d at 704 (quoting Coleman, 667 F.3d

at 846). Whether a comparator is similarly situated is typically

a question for the fact-finder, unless, of course, the plaintiff has

no evidence from which a reasonable fact-finder could conclude

that the plaintiff met his burden on this issue. Coleman,

667 F.3d at 846-47.

Reed points to four white employees as comparators who,

he asserts, were treated more favorably than he was: Sandy

Bakir, Kathleen French, Bridget Glass and Nicole Landis.3

Bakir, French and Glass were Team Leads as well as Broker

Liaisons. They had significantly greater seniority than Reed.

Landis was a Broker Liaison who was given a verbal warning

for missing work on a single occasion.4 If those were the only

3 On appeal, Reed argues that other white employees also had similar

disciplinary problems and poor attendance records, but his claims

regarding those other employees suffer the same infirmities as his evidence

regarding these four employees, and so we confine our discussion to these

four.

4 Reed asserts that Landis was once absent for five continuous days. The

(continued...)

12 No. 16-3661

differences, we might conclude that the question of similarity

should go to the jury. But Reed’s counsel presented no evidence

that any of these employees had a similar history of

violations of the Attendance Policy or a similar disciplinary

record. Having failed to follow through on his discovery

requests,5 Reed’s lawyer seeks to rely on his client’s personal

observations of other workers’ arrival times and absences from

work. Certainly a witness with personal knowledge of a matter

may testify to that matter. Fed. R. Evid. 602; United States v.

Mendiola, 707 F.3d 735, 741 (7th Cir. 2013) (“the knowledge

required by Rule 602 is not absolute or unlimited knowledge

but simply that awareness of objects or events that begins with

sensory perception of them, a comprehension of them, and an

ability to testify at trial about them.”).

But Reed testified only that he had seen these other

employees arrive after 8 a.m. an unspecified number of times

on dates that he could not recall. The record does not reveal

whether the late appearances came before or after the email

4 (...continued)

company’s Attendance Policy treated a continuous multi-day absence as

one “occasion.”

5 Reed’s counsel attempted to characterize his discovery requests as

including personnel and attendance records for comparators, but he

requested personnel records only for the plaintiffs themselves. Although

attendance records for comparators could arguably be included in the

request for “[a]ll documents that tend to substantiate the allegations in the

Complaint,” that request was so broad and vague that it gave no reasonable

framework for a response. Counsel inexplicably failed to request the most

relevant records necessary to make out the claim: the personnel and

attendance records of non-African-American comparators.

No. 16-3661 13

demanding strict adherence to the office schedule. Nor is there

evidence regarding whether the other employees had asked for

or received permission for alternate schedules as provided in

that email, or whether management was aware that other

employees were not complying with the Attendance Policy.

Except for one instance, there was no evidence of whether any

of the other employees had received written or oral discipline

for unexcused lateness or absence. In that one instance, Landis

had received an oral warning. But the record does not reveal

Landis’s attendance record after that warning or any evidence

of whether Landis’ total number of absences approached

Reed’s record. Nor is there evidence regarding whether any

employees were allowed to work from home following the

January 21 email ending the practice.

Reed’s lawyer simply failed to gather the evidence that

would have made his client’s personal observations relevant to

the fact he was trying to prove. The problem is not, as Freedom

Mortgage complains, that Reed failed to corroborate his

personal observations. There is no rule requiring corroboration

for personal observations. The problem is that Reed’s lawyer

failed to gather evidence regarding the timing or context of the

personal observations that would have made them relevant to

the point he was trying to prove, namely, that these employees

had similar attendance issues and were treated more favorably.

Reed’s lawyer did not pursue through discovery any evidence

regarding the scheduled work hours of other employees,

whether and how often those workers were tardy, whether

management was aware of any late arrivals, whether any late

workers had permission to be tardy, and whether any other

unexcused tardiness resulted in discipline.

14 No. 16-3661

Other than a single occurrence with Landis, the record

contains no evidence regarding the attendance of similarly

situated white employees. On this record, only Reed had so

many documented violations of the Attendance Policy, and

only Reed continued to violate the Policy after being warned

of the consequences of his failure to comply. On this record,

Bidstrup was aware only of Reed’s repeated violations of the

Attendance Policy. Reed’s lawyer simply failed to gather any

evidence demonstrating that there were any non-African-

American employees with Attendance Policy violation records

even remotely similar to Reed’s. Ortiz, 834 F.3d at 765. He

therefore cannot demonstrate that Freedom Mortgage treated

similarly situated employees more favorably, and his claim

fails as a matter of law.

Reed’s final argument, that Freedom Mortgage perpetuated

a hostile work environment, simply rehashes his claim for racebased

termination. The claim is predicated on the assertion that

the company employed different attendance policies for

African-American and white workers, that African-American

workers were disproportionately monitored and disciplined

under those policies, and that his termination was the result of

the discriminatory application of those policies, all creating a

hostile work environment. This claim fails for the same reason

as the wrongful termination claim, namely that Reed’s lawyer

failed to gather evidence demonstrating that the company

treated similarly situated non-African-American employees

more favorably than African-American employees. We have

considered the remaining arguments and find them without

merit.

AFFIRMED.