NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2013*
Decided July 30, 2013
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12‐3782
MELVIN D. REED, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 11‐C‐221
LINCARE, INC., Rudolph T. Randa,
Defendant‐Appellee. Judge.
O R D E R
Melvin Reed, who is African‐American, appeals the district court’s grant of
summary judgment against him in this lawsuit involving claims of employment
discrimination. Reed was fired after working only one week as an on‐call service
representative for Lincare, Inc., which provides oxygen and other medical equipment to
clinics, hospitals, and patients’ homes. On his second day on the job, Reed told the
employee who was training him, Jeff Sekely, that he was thinking about enrolling in night
classes. Sekely expressed concern that Reed’s plans would interfere with his new job, and he
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
No. 12‐3782 Page 2
relayed Reed’s comment to manager Angela Emley. When Emley asked Reed about his
plans, he confirmed that he was considering a return to school. Over the next several days,
according to Reed, Sekely made several racist comments, describing the company’s African‐
American clients as “dysfunctional” because they did not allow Lincare’s service
representatives to enter their homes and stating that African‐Americans did not value
education or marriage and should not receive free meals at school. He became angry when
Reed mentioned that he did not want to work too many hours, and he passed these remarks
along to Emley. After working for Lincare for a week, Reed called in sick. Emley fired him
later that day, explaining that she did not believe he was a good fit for the position.
Reed responded by filing a discrimination complaint with the Equal Rights Division
of Wisconsin’s Department of Workplace Development, speculating that Emley had fired
him on Sekely’s racist advice. Throughout the administrative proceedings he made several
settlement demands. The Division concluded that there was no probable cause for finding
racial discrimination, and Reed filed an administrative appeal.
One day before the hearing on his administrative appeal, Reed withdrew his charge
and then filed this suit under Title VII of the Civil Rights Act of 1964, alleging that Lincare
discharged him and subjected him to a hostile work environment based on his race. See 42
U.S.C. §§ 2000e–2(a)(1), 2000e–3(a). After discovery, the district court granted Lincare’s
motion for summary judgment, concluding that Reed failed to make out a prima facie case of
discrimination because he did not identify any similarly situated non‐African‐American
employee who received better treatment. The court noted that Reed had not identified
evidence calling into question Lincare’s proffered legitimate reason for firing him—its
perception that he was unwilling to work the required on‐call hours. With respect to Reed’s
hostile work environment claim, the court opined that he did not describe conduct by
Sekely that rose to the level of harassment, and he did not claim to have told his employer
about Sekely’s statements. The court concluded by granting Lincare’s motion for sanctions,
assessing $5,000 in attorney’s fees based on its finding that Reed’s litigation strategy
demonstrated that he had filed suit for the improper purpose of coercing Lincare into
settlement.
On appeal Reed first argues that the district court erred by granting summary
judgment against him on his claim that he was discharged based on his race. He maintains
that Lincare was obligated to investigate Sekely’s reports before firing him and that by
acting on Sekely’s advice the company facilitated his racism. But while an employer opens
itself up to charges of discrimination when it blindly relies on the reports of a racist
employee, see Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 917–18 (7th Cir. 2007);
Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004), Reed acknowledges that
Emley followed up with him when she learned about his plans to return to school. Nor can
No. 12‐3782 Page 3
Reed show discrimination based on Emley’s reliance on Sekely’s second report, because he
produced no evidence to undermine the accuracy of that report or to show that Sekely did
not report similar remarks by employees of other races. See Byrd v. Ill. Dep’t of Pub. Health,
423 F.3d 696, 711–12 (7th Cir. 2005); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th
Cir. 1997).
Reed maintains, too, that the district court improperly found that he had not
identified evidence of harassment serious enough to create a hostile work environment. We
assume for the sake of argument that the remarks that Reed identifies are sufficiently
offensive to support a finding of a hostile environment. Nonetheless, because Sekely did not
have direct authority to hire, fire, demote, promote, transfer, or discipline Reed, Lincare
could not be liable for his actions unless it was negligent in failing to prevent his
harassment. See Vance v. Ball State Univ., No. 11‐556, 2013 WL 3155228, at *3 (June 24, 2013);
Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002). Because Reed never brought
Sekely’s remarks to Lincare’s attention, he cannot show negligence, and summary judgment
was properly granted on this claim. See Durkin v. City of Chicago, 341 F.3d 606, 612–13 (7th
Cir. 2003).
Reed also argues that the district judge abused his discretion by denying Reed’s
motion to recuse or disqualify himself. But Reed’s only purported evidence of bias is that
the same judge had ruled against him in several other cases (one of which included rulings
reversed on appeal), which in itself is insufficient to call into question the judge’s
impartiality. See Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 2009); Brokaw v. Mercer Cnty.,
235 F.3d 1000, 1025 (7th Cir. 2000). Moreover, to the extent that Reed’s recusal motion is
construed as invoking 28 U.S.C. § 455(a), Reed waived any challenge to the district court’s
denial of the motion by failing to file a petition for a writ of mandamus. See id.; United States
v. Diekemper, 604 F.3d 345, 351–52 (7th Cir. 2010).
Finally, Reed argues that the district court abused its discretion by granting Lincare’s
motion for sanctions. But given Reed’s conduct throughout these proceedings, including his
repeated settlement demands, the relative weakness of his case, and his inflammatory
rhetoric, we cannot say that no reasonable jurist could have concluded that Reed filed this
suit with the intent to harass Lincare and extract a settlement from it. See FED. R. CIV. P.
11(b)(1), (c)(1); Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003). As the district court
noted, in this and his many other employment discrimination suits, Reed has consistently
delayed administrative proceedings before filing suit in federal court, and he repeatedly
demanded settlements from Lincare backed by the threat of expensive and potentially
embarrassing litigation.
AFFIRMED.