Keenan Brown v. Wal-Mart Stores, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 23, 2019 *
Decided April 24, 2019
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-2587
KEENAN BROWN,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 17 C 393
Ronald A. Guzmán,
Judge.
O R D E R
Keenan Brown, a former associate in the bakery department at a Wal-Mart store
in New Lennox, Illinois, sued the company under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981, asserting that he was fired because of his
race, color, and sex, and in retaliation for filing internal complaints over incidents with
coworkers. The district court entered summary judgment for Wal-Mart, and we affirm.
* 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NONPRECEDENTIAL DISPOSITION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. 18-2587 Page 2
Brown, who is African American, did not get along with his colleagues in the
bakery department. A month into his employment, he was confronted about his job
performance by a coworker. She called him “rug rat” and “boy,” and, when Brown
pointed his finger at her, she slapped his hand. Brown reported the incident to a
manager, who told him that it would be addressed. Brown also filed a complaint about
the incident with Wal-Mart’s ethics office. Two weeks later, Brown filed a second
complaint against his coworker as well as the bakery department’s supervisor, who, he
believed, retaliated against him for his earlier complaint by assigning him additional
duties. Wal-Mart investigated Brown’s complaints, concluded that the coworker had
acted inappropriately by slapping his hand, and reprimanded her. But Wal-Mart
concluded that Brown’s claims of retaliation were not substantiated. Meanwhile,
Wal-Mart granted Brown’s request to be transferred to the electronics department.
Shortly after his transfer, however, Brown was tardy for his shift. His tardiness
meant that he had accumulated a certain number of unauthorized absence “points”
that, under company policy, subjected him to termination. The next day his new
supervisor fired him for accruing too many unauthorized absences.
After receiving a right-to-sue letter from the EEOC, Brown brought this suit
asserting discrimination based on his race, color, and sex, as well as retaliatory
discharge for filing two internal complaints against his colleagues.
The district court ultimately entered summary judgment for Wal-Mart on all
claims. Regarding Brown’s discrimination claims, the court found that the record was
“devoid” of any evidence that he had been discriminated against based on his sex,
color, or race. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). As for
Brown’s retaliation claim, the court determined that he had not pointed to evidence
from which it could be inferred that his discharge was caused by his internal complaints
about his coworker and the bakery department’s supervisor.
On appeal, Brown first argues that he introduced sufficient evidence from which
it could be inferred that his coworker discriminated against him and that the reason for
his discharge was merely a pretext to discriminate.1 Tracking the McDonnell Douglas
Corporation v. Green framework, 411 U.S. 792, 802–03 (1973), Brown argues that he was
1 Brown also alludes in his brief to age discrimination, but he did not raise this
claim before either the EEOC or the district court and therefore has forfeited it. See
Poullard v. McDonald, 829 F.3d 844, 855 (7th Cir. 2016).

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No. 18-2587 Page 3
meeting Wal-Mart’s legitimate performance expectations because his absences had been
authorized by Wal-Mart management. See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508,
846 F.3d 216, 224 (7th Cir. 2017). But he offered no evidence to dispute Wal-Mart’s
employment records reflecting that he had accrued four and a half points for his
unauthorized absences—and Wal-Mart’s policy is to discharge new hires, like Brown, if
they accrue four or more points within six months of being hired.
Brown also asserts, generally, that Wal-Mart treated him differently from his
similarly situated coworker in the bakery department who slapped his hand and was
the subject of his complaints but not fired. But here too he failed to point to evidence to
suggest that she was “directly comparable to [him] in all material respects.” Coleman v.
Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (internal quotations and citations omitted). He
did not introduce evidence, for instance, to reflect that she received more than four
points for being absent or tardy but was not fired, or that she was a new hire (she was
not, she had been working for Wal-Mart for five years).
As for his claim of retaliation, Brown argues that the district court overlooked
evidence that Wal-Mart ignored his complaints and chose to selectively enforce its
policies to fire him but not his coworker. But as the district court determined, Brown
cannot point to evidence of a causal connection between his discharge and his internal
complaints, given the absence of any evidence that the supervisor was aware of the
complaints. See Cervantes v. Ardagh Grp., 914 F.3d 560, 566–67 (7th Cir. 2019). The
electronics department supervisor who fired Brown provided a declaration asserting
that he was unaware that Brown had filed any complaints prior to his termination, and
Brown presented no evidence to the contrary.
We have considered Brown’s remaining arguments, and none has merit.
AFFIRMED

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