Preston Straub v. Jewel Food Stores, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 19, 2021*
Decided March 24, 2021
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-2084
PRESTON STRAUB,
Plaintiff-Appellant,
v.
JEWEL FOOD STORES, INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17-cv-06401
Steven Charles Seeger,
Judge.
O R D E R
Preston Straub, who is in his sixties, was fired from his job as a clerk at a Jewel
Foods grocery store after he shoved another employee in the produce section. He sued
the store, alleging that the discharge was really because of his age. Jewel moved for
summary judgment, and, in response, Straub asked for more time to obtain discovery
* We have agreed to decide this 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-2084 Page 2
about two other employees who he believed were treated more favorably. The district
court denied Straub’s request and entered summary judgment for Jewel. The district
court did not need to delay its resolution of the summary judgment motion, because the
discovery Straub sought would not have helped his claim. Moreover, no reasonable jury
could conclude that Straub was fired because of his age. We therefore affirm.
When reviewing an entry of summary judgment, we view the record in the light
most favorable to the nonmoving party. Tyburski v. City of Chicago, 964 F.3d 590, 597
(7th Cir. 2020). But that does not mean we take as true bare allegations not supported by
evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57 (1986); McCann v.
Badger Mining Corp., 965 F.3d 578, 592 (7th Cir. 2020). As the district court noted, Straub
supplied no evidence (not even his own declaration) in support of his version of events.
Even though the court liberally construed his filings and gave his allegations the benefit
of the doubt when describing the events leading to this lawsuit, our review is de novo
and we will not credit unsupported allegations. See Tyburski, 964 F.3d 590 at 597.
By 2016, Straub had worked at Jewel for more than 15 years. His job was to
organize products on the shelves. One day, while Straub was in the produce section, he
exchanged heated words with another employee (who was also over 60). According to
Straub, the other employee rammed a cart into his legs two times. Straub defended
himself by using both hands to shove the other man. In response, the other employee
put his hands around Straub’s neck and pushed him up against a pole. A customer
witnessed the brawl and reported it to management. After an investigation, Jewel fired
both Straub and the other employee.
After exhausting his remedies with the Equal Employment Opportunity
Commission, Straub sued his former employer, alleging, as relevant here, that Jewel
fired him because of his age in violation of the Age Discrimination in Employment Act,
29 U.S.C. § 623(a).
About four months after the close of discovery, Jewel moved for summary
judgment. In response, Straub moved under Federal Rule of Civil Procedure 56(d) for
more time to obtain discovery about two potential comparators—the store director and
the bakery manager, both of whom had been in fights at work and had not been fired.
Jewel opposed the motion. It pointed out that Straub had not filed an affidavit or
declaration with his motion, as required by Rule 56(d). Further, Jewel observed, Straub
had identified both employees in his initial discovery disclosures (he listed the store
director as a person with discoverable information and the bakery manager as a

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No. 20-2084 Page 3
potential comparator), and he mentioned the bakery manager’s fight during his
deposition, yet he offered no excuse for not seeking information about those employees
during 14 months of discovery. Finally, Jewel contended that neither employee was an
appropriate comparator to Straub.
The district court (at the time, Judge Virginia Kendall) held a hearing on Straub’s
Rule 56(d) motion. Straub averred that he had filed the required declaration with his
motion, but that it had not been posted on the docket because it was attached to what
looked like a repeat filing. He then repeated his contention that he needed more time to
obtain discovery on the two manager-level employees. The district court denied the
motion, agreeing with Jewel that the two managers were not appropriate comparators
and so evidence about them would not help Straub stave off summary judgment. It
gave Straub additional time to respond to the summary judgment motion.
Later the case was transferred to Judge Steven Seeger as part of his initial docket,
and he granted Jewel’s motion for summary judgment. The court explained that
Straub’s filings did not cite any evidence to dispute Jewel’s statement of facts, nor did
they otherwise comply with Local Rule 56.1.1 Nevertheless, the court liberally
construed Straub’s filings, and ruled that even based on his version of events, no
reasonable jury could conclude that Jewel had fired Straub because of his age. Straub
appealed (belatedly, but the district court extended the period for good cause, and so
our jurisdiction is secure, see Mayle v. Illinois, 956 F.3d 966, 968–69 (7th Cir. 2020)).
On appeal, Straub argues that the district court abused its discretion in denying
his request for more time to obtain discovery before responding to Jewel’s summary
judgment motion. He maintains that he was unable to identify the similarly situated
comparators necessary to show that Jewel’s proffered reason for firing him was
pretextual and to get his claim past summary judgment.
We see no error in the court’s decision to bar additional discovery. District courts
need not delay deciding a summary judgment motion when more discovery could not
help the requesting party oppose the motion. F ED. R. C IV. P. 56(d) (moving party must
1 In this court, Straub asserts that his discharge was the culmination of
discriminatory treatment by Jewel’s managers, who (he says) had yelled at him on at
least three occasions, had asked how old he was, and had criticized him for the pace of
his work. But he failed to present competent evidence supporting these allegations, and
so we disregard them.

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No. 20-2084 Page 4
show need for “facts essential to justify its opposition”); Arnold v. Villarreal, 853 F.3d
384, 389 (7th Cir 2017). The district court discussed at length with Straub what
information he was seeking. Straub explained that he wanted to inquire about the store
director and bakery manager who had not been fired for fighting. But neither would
have been an appropriate comparator: They were manager-level employees, whereas
Straub was an hourly clerk, and they had different supervisors than Straub. Further, the
bakery manager was attacked, unprovoked, by an employee’s boyfriend (that
employee—age 26—was fired for instigating the incident), and the director’s altercation
happened at a different store. See Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc.,
986 F.3d 711, 719–20 (7th Cir. 2021) (affirming summary judgment when comparators
were not similarly situated in part due to different roles, decision-making personnel).
Thus, more discovery about these people could not have helped Straub show that Jewel
treated comparable, younger employees more favorably. See Khowaja v. Sessions,
893 F.3d 1010, 1015–16 (7th Cir. 2018).
Further, as Jewel rightly points out, Straub could have sought information about
the managers sooner. Early in discovery, Straub identified the store director and bakery
manager as sources of discoverable information, even listing the bakery manager as a
potential comparator. Yet, at no point during 14 months of discovery did Straub seek
information about them. See Citizens for Appropriate Rural Rds. v. Foxx, 815 F.3d 1068,
1082 (7th Cir. 2016) (litigant who “forestalls prosecution of their own case is not entitled
to seek additional discovery when the opposing side moves for summary judgment”).
Straub does not otherwise challenge the entry of summary judgment, and based
on the record, the district court reached the right conclusion. See Tyburski, 964 F.3d
at 597. The undisputed evidence shows that Straub shoved another employee during
his shift, in the middle of the produce section, with a customer watching, and that the
store discharged him and the other worker as a result. Straub provided no evidence of
an agist motivation, let alone evidence that Straub’s age was the but-for cause of his
firing. Id. at 598.
The judgment of the district court is AFFIRMED.

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