In Ennin v. CNH Industrial America, LLC, 878 F.3d 590 (7th Cir. 2017), the Seventh Circuit upheld the district court’s grant of summary judgment to the employer, holding that the employee failed to present any admissible evidence that CNH Industrial America’s (CNH) terminated him on account of his race, national origin, disability, or his decision to take leave under the Family and Medical Leave Act of 1993 (FMLA).

The plaintiff, Abdullah Ennin (Ennin), was born in Ghana and is a naturalized American Citizen. Ennin began working for CNH on January 3, 2012, as a supervisor with dozens of hourly workers reporting to him. Ennin was the only black supervisor at his facility in Lebanon, Indiana. Ennin went two years working without incident when he received a written warning for misconduct in May 2014. Ennin’s supervisor cited him for inappropriate behavior related to a verbal altercation he had with another supervisor over the volume of a radio playing in the break room.

On November 17, 2014, Ennin’s car broke down on his way to work and his next actions ultimately led to his termination. After notifying his supervisor that he would be late for work due to his car trouble, Ennin called an hourly employee, who was already clocked in and working, to come assist him. Upon their return to CNH that morning, Ennin allowed his hourly employee to follow him through the supervisor’s entrance after Ennin had swiped only his badge, in violation of company policy. Ennin also failed to adjust the employee’s time sheet in the CNH timekeeping system to reflect that he had been off premises for 46 minutes while he was clocked in.

On November 19, two days later, Ennin was called into a meeting with his two supervisors and CNH’s Human Resources Manager. At the conclusion of the meeting, the HR Manager and his supervisors told Ennin that his actions were unacceptable, but they did not inform him of a final decision at that time. Ennin’s supervisors and the HR Manager maintained that they met separately on November 19, after the meeting with Ennin, and determined that Ennin should be fired for his multiple violations of company policy. According to the HR Manager and supervisors, they decided they would let Ennin know of his termination the next day, on November 20. Before they had the opportunity to inform him of the decision, Ennin informed his supervisor later on November 19 that he had to go home because of his hemorrhoids acting up. Ennin did not return to work on November 20 and instead scheduled a previously planned hemorrhoidectomy for November 21.

Ennin requested and received leave directly from CNH’s third-party administrator and Ennin reported to the administrator that he would return by January 1, 2015. On November 20, 2014, CNH’s HR Manager learned that Ennin had requested leave and that she would not be able to inform him of his termination at work that day. On December 1, 2014, after learning that Ennin had been approved for short-term leave through December 14, the HR Manager sent Ennin a letter informing him that his employment had been terminated. The letter indicated that the decision to terminate him was made on November 19 and that he was fired because of the November 17 incident.

Ennin sued CNH and alleged that he was fired because of his race, national origin, disability (related to the hemorrhoidectomy), and decision to take FMLA leave. CNH filed a motion for summary judgment. In response to the motion for summary judgment, Ennin attempted to introduce evidence, including emails and text messages involving the decision makers at CNH, to show that CNH did not decide to terminate his employment until December 1. CNH argued in its reply brief that Ennin’s evidence was hearsay and unauthenticated. Ennin did not file a surreply brief even though the local rules of the Southern District of Indiana permitted him to do so as of right to respond to evidentiary objections. As a result, the district court held Ennin had waived his evidentiary argument and it did not consider Ennin’s evidence that CNH did not decide to terminate him until December 1. As a result, Ennin could not provide evidence that CNH knew when they fired him that he had surgery and that he had taken FMLA leave. Thus, the district court granted CNH’s motion for summary judgment.

In upholding the district court’s ruling, the Seventh Circuit Court of Appeals agreed that Ennin waived the ability to submit evidence that CNH decided to terminate him on December 1, and not November 19. The Seventh Circuit held that where a brief is permitted as a matter of right, a party must file it or risk waiver of any arguments it has neglected to raise. Since Ennin did not present his arguments to the district court, he let CNH’s objections to his evidence stand unopposed. The Seventh Circuit would not permit him to raise this evidence for the first time on appeal.

After ruling that it would not consider Ennin’s evidence that CNH decided to terminate him on December 1, the Seventh Circuit addressed the ultimate question of whether the evidence in the record would permit a reasonable factfinder to conclude that Ennin’s race or national origin caused CNH to terminate his employment. Since CNH had proffered a legitimate, nondiscriminatory reason for filing Ennin, he had to produce evidence that those reasons were actually pretext for discrimination. In finding that Ennin failed to do so, the Seventh Circuit held that “pretext involves more than just faulty reasoning or mistaken judgment on the part of the employer.” Ennin, 878 F.3d at 596. Ennin’s only admissible evidence established that CNH terminated him from employment on November 19, before he became disabled and before CNH knew that he had requested FMLA leave. Thus, the Seventh Circuit found that it would have been impossible for CNH to have fired him because of disability or his decision to take FMLA leave.

Ennin argued that white employees that were similarly situation to him were not fired, however, the Seventh Circuit agreed with the district court that these employees were not similarly situated because they were hourly employees that had not been previously disciplined, unlike Ennin. The Seventh Circuit held that an employee who does not have a similar disciplinary history and performance record as the plaintiff is not similarly situated. In finding that Ennin did not present evidence of any appropriate comparators or other evidence of racial bias, the Seventh Circuit held Ennin only had mere conjecture and speculation to support his race and national origin discrimination claims. Therefore, he could not survive summary judgment.

The Seventh Circuit’s findings in this case highlight the importance of preserving all arguments before the district court at the dismissive pleading stage and the significance for employers to establish evidence of why it terminated an employee and to document when that decision was made.