Anders v. Waste Management of Wisconsin

463 F.3d 670

Steven L. ANDERS, Plaintiff-Appellant, v. WASTE MANAGEMENT OF WISCONSIN, INCORPORATED, subsidiary, and Waste Management, Incorporated, a parent corporation, Defendants-Appellees.

No. 05-3862.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2006.

Decided September 12, 2006.

Tricia L. Knight (argued), Knight & Associates, Milwaukee, WI, for Plaintiff-Appellant.

Marko J. Mrkonich (argued), Littler Mendelson, P.C., Minneapolis, MN, for Defendants-Appellees.

Before BAUER, WOOD, and SYKES, Circuit Judges.

BAUER, Circuit Judge.

On November 12, 2002, Steven L. Anders, a waste hauler for Waste Management of Franklin, Wisconsin, attempted to assault his District Manager, William Snow, in front of numerous co-workers. It is no surprise that he was fired as a result of this action. Anders, however, filed suit in the district court claiming that his dismissal violated the Family and Medical Leave Act, the Americans with Disabilities Act, Title VII, 42 U.S.C. § 1981, and the Wisconsin Fair Employment Act. The district court granted summary judgment to the defendants, and we affirm.

I. Background

Before addressing the underlying facts of the case, we must first demarcate the scope of the record properly before this Court on appeal. Following Waste Management's motion for summary judgment, Anders was required, as per Eastern District of Wisconsin local Rule 56.2, to submit "a specific response to the defendants' proposed findings of fact, clearly delineating only those findings to which it is asserted that a genuine issue of fact exists." Civ. L.R. 56.2(b)(1). As an example of the intended form, we note that Waste Management's Proposed Findings of Fact (PFOF) was a ten-page document containing sixty-five brief, numbered paragraphs. Anders's response, however, was a sprawling sixty-five page argument that referenced Waste Management's proposed findings only in passing. After reviewing his submission, the district court found that "[o]n the whole, Anders'[s] response is a disjointed, convoluted, and hopeless mess; his non-compliance with Rule 56.2(b) is more than substantial—it is total." Tr. Rec. 60 at 3 (emphasis in original). Under Civ. L.R. 56(e), the district court rejected Anders's submitted response to the PFOF and held that there was no "genuine material issue as to any proposed finding of fact to which no response is set out." In other words, it adopted Waste Management's proposed findings as the undisputed facts on record. Salvadori v. Franklin School Dist., 293 F.3d 989, 992 (7th Cir.2002); see Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994). We review the district court's decision for an abuse of discretion, and find no error. See Koszola v. Bd. of Educ., 385 F.3d 1104, 1108 (7th Cir.2004) (citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004)).

Additionally, Anders claims that the district court then went outside of the defendant's legal arguments and proffered findings when granting summary judgment. Were this the case, he would be entitled to rely on the entire record here on appeal. See Nabozny v. Podlesny, 92 F.3d 446, 450 (7th Cir.1996) (finding district court erred in granting summary judgment on grounds and facts not offered by moving party). But the district court committed no such error. Anders appears to argue that because the Order granting summary judgment cited to evidentiary material beyond just the PFOF, e.g. "Drephal Dep. at 19," that the lower court violated some categorical rule set forth in Nabozny. In Nabozny, however, we did not limit our review solely to the PFOF. Instead, we stated that "[i]f the court elects to rely on legal arguments and evidence not incorporated in, or submitted with, the summary judgment motion, the court is obligated to consider the entire record `to ensure that the record reveals no issue of material fact.'" Id. (emphasis added).

Anders's vague and conclusory statements aside, our comparison of the district court's Order granting summary judgment and Waste Management's Memorandum and PFOF in support of their motion demonstrates that each fact cited in support of the Order is indeed present or incorporated into the motion.¹ See Civ. L.R. 56(a). Specifically, the deposition of Regional Manager Dennis Drephal, which, at oral argument, Anders claimed was not referenced in the PFOF, is cited in paragraphs 15, 16, 37, 39, and 58. The district court's variation in citation form is a far cry from the repeated errors made by the district court in Nabozny, where summary judgment was granted on certain claims where the defendant offered no legal rationale. Id. at 50; compare Brown v. United States, 976 F.2d 1104, 1108-10 (7th Cir. 1992) (expanding scope of record on appeal where summary judgment was granted on basis different than that offered by moving party). Further, the legal grounds upon which the court granted summary judgment on Anders's retaliation claim, the other point of contention raised in his appellate brief, are wholly consistent with the timing and causation argument made by Waste Management. Thus, Anders's claim on this initial point fails. With this legal decision in mind, we turn now to establish the facts of the case.

Anders, an African-American male, was a unionized "roll-off" waste-hauler employed at Waste Management's facility in Franklin, Wisconsin. His supervisor during the period of time relevant to this case was Manager Dave Koch, who was, in turn, supervised by District Manager William Snow. Over Snow was Regional Manager Dennis Drephal. Waste Management's regional management facility, where Drephal worked, however, was in Menomonee Falls, Wisconsin, thirty miles from Franklin.

As a roll-off driver, Anders had no pre-determined route. Each morning when he reported to work he was handed a route slip that detailed his itinerary for that day. This arrangement was company policy and was set forth in Anders's labor agreement. When he arrived at the Franklin facility on November 12, 2002, he was handed his route slip by supervisor John Pena. Anders claims that after receiving the slip he was told by a co-worker that the stops on his route had been serviced the day before. He claims that were this the case, the routes would not need to be serviced again the next day, and that this would negatively affect his incentive pay. Waste Management policy, however, states that a driver should attend to his route even if he believes it was serviced the day before. The reason behind this rule is that some customers intentionally scheduled back to back service.

Acting under the belief that his route would not need to be serviced again, Anders decided to leave work. Claiming that he was feeling sick, i.e., sleepy, shaky, and experiencing a headache, he told Pena that he was going home. Shortly after Anders left the facility, however, Bob O'Brien told Pena that he overheard Anders say he was "going up to get [Regional Manager] Dennis Drephal and then he was coming down to get [Manager] Dave [Koch]." PFOF ¶ 20. Pena immediately had someone from the Franklin facility call the Menomonee Falls office and notify them of Anders's intentions.

Despite having told Pena that he was not feeling well and needed to go home, Anders drove the thirty miles to the Menomonee Falls office. Upon his arrival, he was met in the facility parking lot by John Schiller, who had received the warning call from Pena. According to Schiller, Anders wanted to talk to Drephal because he was unhappy with his route assignments and supervisors, Koch and Snow. Schiller told Anders that it was not acceptable for him to have walked off the job, and that he could wait inside the building for Drephal to arrive.

Anders went inside briefly, but soon returned to the parking lot. He claimed that as he waited for Drephal he began to shake, and his head and chest started hurting; so he went outside to get some fresh air. In the meantime, Schiller called Drephal, who told him to have Snow talk to Anders. After Schiller located Snow, the two men were on their way to meet Anders when another employee told them that he was outside lying on his car. Given that this was November, Schiller went to bring Anders back inside. This did not go as planned. After a few minutes had passed, and Schiller had not yet returned, Snow and Sam Phillips walked out to the parking lot where they saw Anders first pound his fists into his car and then smash his cellular telephone into the ground. Anders became short of breath, and someone called the paramedics. At this point, Schiller went to lead Anders back into the building.

As Anders was being escorted into the building he attempted to attack Snow. At first he simply leered at Snow, but he then clenched his fists, lowered his shoulder into an aggressive stance, and charged. Snow was, to say the least, afraid. Schiller, who witnessed the entire event, had to position himself between the two men. Anders, Schiller said, was "mad as hell" while in the parking lot, briefly calmed down before heading back to the facility, and then became "very violent" upon seeing Snow. PFOF ¶ 31. Phillips, who also witnessed the event, described Anders as having moved toward Snow "with aggression," causing him to move back and exclaim "don't come after me." PFOF ¶ 33. Anders acknowledged that he did walk towards Snow, and that his behavior could have been interpreted as threatening.

This was not Anders's first aggressive incident in the workplace. His personnel records reflect that he received other disciplinary violations in 2002. Particularly, on October 24, he lost his temper with Koch after receiving a tardy notice. Both Koch and Pena testified that after being given the notice Anders threw his jacket to the ground and yelled at Koch in an insubordinate and boisterous manner. Anders does not dispute that this disagreement occurred.

These combined actions violated Waste Management's Rules and Regulations,...