Opinion
23-2633
07-25-2024
JAMESETTA McFARLAND-LAWSON, Plaintiff-Appellant, v. ADRIANNE TODMAN, Acting Secretary of the Department of Housing and Urban Development, Defendant-Appellee.
NONPRECEDENTIAL DISPOSITION
Submitted July 24, 2024 [*]
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 16-CV-685 William E. Duffin, Magistrate Judge.
Before ILANA DIAMOND ROVNER, Circuit Judge AMY J. ST. EVE, Circuit Judge JOHN Z. LEE, Circuit Judge
ORDER
This case returns after a partial remand. Jamesetta McFarland-Lawson, a former employee for the Department of Housing and Urban Development (HUD), sued HUD for discriminating against her based on her disability, race, gender, and veteran status. In our first decision, McFarland-Lawson v. Ammon, 847 Fed.Appx. 350 (7th Cir. Feb. 24, 2021), we affirmed the dismissal of McFarland-Lawson's complaint except as to her claim that HUD discriminated against her based on a disability when it required her to authorize a medical investigation before returning to work from enforced leave. We remanded for the district court to determine whether McFarland-Lawson ratified a grievance that the union filed based on that claim, observing that, if she had, then she had not exhausted her administrative remedies because she did not seek arbitration after the grievance was denied. On remand, the parties provided evidence on this issue, and the district court found that McFarland-Lawson had implicitly authorized the union grievance because she knew about it but did not disavow it. We affirm.
We recount only those facts relevant to this appeal. In resolving the summaryjudgment motion, the district court deemed HUD's statement of proposed material facts undisputed because of McFarland-Lawson's noncompliance with the local rules. We recount the facts accordingly, but still in the light most favorable to McFarland-Lawson. See McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 786-87 (7th Cir. 2019). (For a more detailed recitation of the facts, see McFarland-Lawson, 847 Fed.Appx. at 352-54.)
By way of background, McFarland-Lawson was a member of a bargaining unit that had a collective bargaining agreement (CBA) with HUD's management. The agreement allowed employees who claimed discrimination to file a grievance or a charge with the Equal Employment Opportunity Commission (EEOC)-but not both. CBA 22.03, 22.04; 5 U.S.C. § 7121(d); 29 C.F.R. § 1614.301(a). The union could also file an employee grievance on behalf of a member, which would bar the member from filing an EEOC charge on the same matter if she explicitly or implicitly adopted the grievance. Kendrick v. Dep't of Veterans Affs., 74 M.S.P.R. 178, 182-83 (Merit Sys. Prot. Bd. 1997). Regardless of the employee's chosen remedy, she had to fully exhaust it before seeking relief in federal courts. This entailed, among other things, invoking the CBA's arbitration provision after a grievance denial.
In this case, McFarland-Lawson filed a charge (the basis of which is not relevant here) with the EEOC in 2012. When speaking with an EEOC investigator, McFarland-Lawson made statements that the investigator interpreted as threats of violence to her coworkers. The investigator informed HUD of the remarks, and HUD placed McFarland-Lawson on administrative leave, then unpaid indefinite enforced leave, while it investigated whether she posed a threat in the workplace. HUD required that, to be reinstated, McFarland-Lawson sign a medical release form or agree to an independent health evaluation. She did not do either for several months.
While McFarland-Lawson was on leave, Barbara Slakes, the local union president and McFarland-Lawson's representative, submitted to HUD's management representative a letter labeled "Grievance of the Parties," with the aim of getting McFarland-Lawson back to work with accommodations. The grievance explained that McFarland-Lawson was harmed by "having to pay for therapist/physician's appointments in compliance with a required HUD management medical examination" and "not being allowed to return to work and resume earning money." McFarland-Lawson did not sign the letter, which was not on the form required for "employee grievances." The grievance was later denied, and after receiving the written decision, the union did not seek arbitration.
McFarland-Lawson, meanwhile, filed a new EEOC charge that included a claim that she was discriminated against based on her disability when HUD required her consent to a medical evaluation or a medical record review before reinstating her. That charge was denied, and McFarland-Lawson completed each step of further review.
In June 2016, McFarland-Lawson filed this case in the district court based in part on these facts, raising several claims under the Americans with Disabilities Act, Title VII of the Civil Rights Act, and Section 503 of the Rehabilitation Act. HUD moved to dismiss the case, arguing in relevant part that McFarland-Lawson could not raise a claim based on the medical investigation authorization because she had not exhausted her administrative remedies. It first pointed out that, under the CBA, McFarland-Lawson could not submit both a grievance and an EEOC charge based on the same matter, and so her EEOC charge (which was filed after the grievance) could not count for exhaustion purposes. 5 U.S.C. § 7121(d); 29 C.F.R. § 1614.301(a). It then observed that McFarland-Lawson had not exhausted the union's grievance because she did not seek arbitration after it was denied. McFarland-Lawson argued that the union had submitted the grievance on its own behalf and that she had not personally grieved this issue. She supported that argument with an affidavit from Slakes, the union representative, who swore that McFarland-Lawson had "never" submitted a grievance. Therefore, McFarland-Lawson maintained, the only remedy she had elected personally was the EEOC charge, which she properly exhausted. The district court agreed with HUD and granted the motion to dismiss.
In vacating the dismissal on this claim only, we explained that the district court had improperly resolved a factual dispute at the motion to dismiss phase by concluding that McFarland-Lawson had submitted the grievance. McFarland-Lawson, 847 Fed.Appx. at 355-56. We remanded for further proceedings to determine whether McFarland-Lawson authorized the grievance, accepting the parties' position that, if she had, her EEOC charge on the same matter would be a duplicative remedy and therefore ineffectual for exhaustion purposes. We remanded with specific instructions that the only claim remaining was the discrimination claim based on HUD's requirement that McFarland-Lawson "needed to authorize an extension of an independent medical examination and review of her medical files, thus delaying a determination of when she would be allowed to return to work."
On remand, the parties deposed Slakes, the union representative who had filed the grievance. Slakes explained that she filed the "grievance of the parties" on behalf of the union and that she was unsure if McFarland-Lawson was aware of the contents of the grievance when it was submitted. But she also stated that McFarland-Lawson had sent her documents to help her prepare the grievance and met with her about the situation while the grievance was pending. She further testified that McFarland-Lawson was aware of the grievance after it was filed, that McFarland-Lawson might have attended a meeting with the management representative about the grievance and approved giving him an extension to provide a written decision, and that McFarland-Lawson had never objected to the union's pursuit of the grievance. Slakes also clarified her previous affidavit, explaining that she had meant to say that McFarland-Lawson "never" filed an employee grievance, not that McFarland-Lawson was uninvolved in the union's grievance.
Based on this testimony, HUD moved for summary judgment. It argued that Slakes's statements showed that McFarland-Lawson had at least implicitly authorized the grievance because she knew about it but did not disavow it. In response, McFarland-Lawson argued that she had met with Slakes and provided materials because she sought advice on how to handle the conditions of her leave, not because she authorized the union to submit a grievance on her behalf. She attested that she "never filed a complaint through the Union" and that she "did not elect or participate[] in or attend" a meeting with the management representative. But McFarland-Lawson did not cite these attestations in her opposition to HUD's proposed findings of fact.
Initially, the district court denied the motion for summary judgment. It first explained that it would accept HUD's proposed findings of fact because McFarland-Lawson had not adequately supported her opposition to those facts. It then concluded that McFarland-Lawson had implicitly authorized the grievance because the evidence showed that she knew of it, and there was no evidence she affirmatively disavowed it. But the court denied the motion because, in the court's view, the grievance and EEOC charge were not about the same matter. The court acknowledged that the grievance and EEOC charge were based on the same underlying facts, but it observed that the EEOC charge raised additional claims and remedies. Because of those differences, the court concluded that the grievance did not preclude McFarland-Lawson from filing the EEOC charge, which was fully exhausted.
After HUD moved for reconsideration, however, the district court reversed course and entered summary judgment for HUD. The court stated that it had erred by relying on the additional claims in the EEOC charge to distinguish the charge from the grievance. The court further explained that the charge and the grievance both contained the claim that McFarland-Lawson was discriminated against when she had to authorize a medical investigation before she could return to work, so the two were based on the same matter, irrespective of any additional claims in the charge.
On appeal, McFarland-Lawson first argues that the district court erred by granting HUD's motion to reconsider. In her view, HUD's motion was improper because it simply rehashed arguments from the motion for summary judgment. But she relies on authority related to post-judgment motions. Here, the district court reconsidered an interlocutory ruling denying summary judgment, and such non-final orders "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." FED. R. CIV. P. 54(b); Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012).
McFarland-Lawson next argues that the initial ruling denying summary judgment did not warrant reconsideration because, in her view, the district court accurately concluded that the grievance and EEOC charge were about different matters. But the court resolved this issue correctly. A grievance and EEOC charge are based on the same "matter" if they both complain about the same underlying agency action, even if the legal theories raised by the employee differ. Heimrich v. Dep't of the Army, 947 F.3d 574, 578-79 (9th Cir. 2020) (collecting cases). Because both the grievance and the EEOC charge challenged HUD's requirement that McFarland-Lawson authorize a medical investigation before returning to work, they were about the same matter-even if the charge raised additional claims.
With respect to the summary-judgment ruling, McFarland-Lawson first challenges the district court's treatment of HUD's proposed statement of material facts as undisputed. The district court determined that, in responding to that statement, McFarland-Lawson had not cited evidence in accordance with Local Rule 56(b)(2)(B)(i) and Federal Rule of Civil Procedure 56(c). We review a district court's enforcement of its local rules for abuse of discretion, and here, we find none. Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015). As the district court explained, McFarland-Lawson largely failed to provide citations to the record, and sometimes she simply cited our 2019 decision remanding the case to the district court-not admissible evidence. True, there were a few assertions that she did properly support, but the district court found that they did not meaningfully dispute any material fact offered by HUD. On appeal, McFarland-Lawson does not identify any factual assertion that she properly supported and that created a genuine issue of material fact; therefore, she fails to demonstrate any error in the district court's ruling.
On the merits, McFarland-Lawson contends that summary judgment was inappropriate because there was a factual dispute over whether she authorized the union's grievance. We review a district court's entry of summary judgment de novo. See Alston v. City of Madison, 853 F.3d 901, 906 (7th Cir. 2017). In her brief, McFarland-Lawson appears to accept the premise that under the CBA, the union's grievance- despite being titled a "Grievance of the Parties"-would count as an employee grievance precluding her from filing an EEOC charge; we therefore assume the same, particularly considering the substance of the union's grievance is about McFarland-Lawson's enforced leave, not the grievance procedure. And as a matter of law, a union filing a grievance on behalf of an employee counts as an employee's election of remedy if the employee explicitly authorized it or was aware of the grievance and did not affirmatively disavow it. See Kendrick, 74 M.S.P.R. at 182-83.
Based on the record, no reasonable jury could conclude either that McFarland-Lawson did not know of the grievance or that she knew of it but disavowed it. Both parties agree that the union filed the grievance, which McFarland-Lawson did not sign. But Slakes' deposition, as well as McFarland-Lawson's correspondence, show that McFarland-Lawson submitted materials to Slakes to help with the grievance, that she knew of the grievance after it was filed and participated in at least part of the grievance process, and that she did nothing to suggest that she did not want the union pursuing a grievance about HUD's conditions for her returning to work. And McFarland-Lawson's evidence does not contradict Slakes's testimony: She simply reiterated that she did not file the grievance or made unsupported assertions that she was unaware of the grievance proceedings initiated by the union.
Even taking into consideration McFarland-Lawson's declaration, which she submitted with her response to the summary judgment motion but did not cite in her opposition to the defendants' facts, does not help her case. She attested only that she did not file the grievance and that she did not attend a meeting with the management representative. Taking those facts as true does not negate HUD's evidence that she was aware of the grievance after it was filed. And she provides no evidence that she disavowed the grievance. Therefore, she did not raise a genuine issue of material fact, and the district court properly entered summary judgment for HUD. See Alston, 853 F.3d at 910-11.
Finally, McFarland-Lawson challenges myriad discovery rulings, including the grant of HUD's motions to seal some discovery documents and for a protective order to prevent her from serving more interrogatories, and the denial of two of her motions to compel discovery. To succeed, McFarland-Lawson would need to show that the district court abused its broad discretion to control discovery and that she was actually and substantially prejudiced by the adverse rulings. See Stevo v. Frasor, 662 F.3d 880, 886 (7th Cir. 2011). But on appeal, McFarland-Lawson does not explain how any of these rulings prejudiced her. Moreover, we see no error in the court's rulings: The judge personally reviewed the materials HUD requested to seal before granting the motion; the protective order was granted only after McFarland-Lawson had submitted more than double the number of interrogatories allowed by rule; and her motions to compel asked the court to force HUD's representatives to answer excess interrogatories, even after the court had ruled that she had exceeded her allotment.
AFFIRMED.
[*] This appeal is successive and under Operating procedure 6(b) is being decided by the same panel that decided appeal no. 19-2662. That appeal was decided by a quorum of the original panel pursuant to 28 U.S.C. § 46(d) because one member departed the court between the appeal's submission and decision. A third panel member was assigned at random for this successive appeal. We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See FED. R. App. p. 34(a)(2)(C).