NONPRECEDENTIAL DISPOSITION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 March 12, 2015*
Decided March 18, 2015
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 14‐2238, 14‐2468, 14‐2855, 14‐2976
MICHELLE Y. BROWN, Appeals from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 5963
HEALTH CARE SERVICE
CORPORATION and RAYMOND E. Milton I. Shadur,
BISANZ, Judge.
Defendants‐Appellees.
O R D E R
Michelle Brown, an African‐American employee of Health Care Service
Corporation, appeals the grant of summary judgment for the defendants in this
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
Nos. 14‐2238, 14‐2468, 14‐2855, 14‐2976 Page 2
employment‐discrimination suit asserting failure‐to‐promote and retaliation claims
under 42 U.S.C. § 1981. We affirm.1
Brown’s suit is based on two failure‐to‐promote claims, the first involving events
from June 2006. Brown’s supervisor, Raymond Bisanz, passed her over in favor of a
white applicant for a new position—the Director of Financial Initiatives—to assist with
mergers and acquisitions projects. Though Bisanz had promoted Brown four times
during her thirty‐year career in the finance division, he dissuaded her from pursuing
this new position because he did not perceive it to be a promotion from her current
director‐level position. Brown eventually withdrew her application.
The following year Denise Bujak, then the Senior Vice President and Chief
Financial Officer, created a new vice president position to head Brown’s division. She
hired James Walsh, a white candidate who was an equity partner at a major public
accounting firm. As vice president, Walsh was responsible for acquiring subsidiary
companies through mergers and acquisitions and giving presentations to senior
management.
In 2009 Brown filed a charge of discrimination with the Equal Employment
Opportunity Commission alleging race, sex, and age discrimination. Five months later,
Bujak implemented a change she had been contemplating: reassigning to a white
employee Brown’s supervision of remitting money from abandoned accounts to the
customers’ state.
In 2011 Brown sued HCSC and Bisanz under 42 U.S.C. § 1981, alleging race
discrimination and retaliation. She asserted that she was not promoted to the new
directorship or vice president positions because of her race. She also claimed that the
company had retaliated for her EEOC filing by removing one of her job responsibilities.
1Brown filed four notices of appeal, which we docketed and have consolidated. Brown’s
second appeal (appealing the denial of her postjudgment motion) conferred appellate
jurisdiction over the first (appealing the grant of summary judgment in the defendants’
favor), so we dismiss the first appeal (no. 14‐2238) as duplicative. See Borrero v. City of
Chicago, 456 F.3d 698, 700 (7th Cir. 2006). We dismiss the third appeal (no. 14‐2855), too,
for lack of jurisdiction because Brown appealed from the August 18, 2014, order
imposing sanctions, but that order was nonfinal because the district court reserved the
total calculation of fees. See Feldman v. Olin Corp., 692 F.3d 748, 758 (7th Cir. 2012).
Nos. 14‐2238, 14‐2468, 14‐2855, 14‐2976 Page 3
Discovery ensued and Brown, proceeding pro se, was sanctioned. She moved to
compel the deposition of an HCSC representative on overly broad and burdensome
topics three times, even after the court instructed her to narrow the scope. Brown also
sought to compel the deposition of one of her subordinates who did not have any
personal knowledge of the events in Brown’s suit. As a sanction, the district court
ordered Brown to pay the attorneys’ fees and costs incurred by the defendants in
responding to her repeated attempts to compel irrelevant and burdensome depositions.
Two weeks later Brown moved the court to reconsider the sanctions, and the court
ordered her to pay the fees and costs associated with responding to this latest motion,
because despite the “repeated efforts to be politely instructive,” Brown continued to
abuse the judicial process.
The court eventually granted the defendantsʹ motion for summary judgment,
adopting it “lock, stock and barrel.” The court concluded that Brown’s first
failure‐to‐promote claim—that she was not hired for the directorship position in 2006
because of her race—was barred by the four‐year statute of limitations. Her second
failure‐to‐promote claim, the court continued, also failed because Brown produced
insufficient evidence that the company’s legitimate, nondiscriminatory reason for hiring
Walsh—that he was more qualified—was pretextual. As for her retaliation claim, the
court relied on the defendants’ reasons in concluding that Brown failed to establish a
prima facie case under both the direct and indirect methods, including that she
presented no evidence of a causal connection between her protected activity—her filing
of an EEOC charge—and the reassignment of her job duties.
Brown then filed a postjudgment motion, asserting (without any factual support)
that the defendants should be estopped from raising the statute of limitations as a
defense to her first failure‐to‐promote claim because their fraud prevented her from
discovering the discrimination. She generally challenged the rest of the district court’s
order granting summary judgment to the defendants. The court characterized the
motion as a “turgid rehash” of her previous arguments and sanctioned her a final time,
again ordering her to pay the defendants’ fees and costs of responding to the motion.
On appeal Brown maintains that the defendants should have been equitably
estopped from raising the statute of limitations as a defense to her first
failure‐to‐promote claim because of their fraud. But Brown waived this argument by
raising it for the first time in her postjudgment motion. See United States v. Rueth Dev. Co.,
335 F.3d 598, 606 (7th Cir. 2003); Sipp v. Astrue, 641 F.3d 975, 980 (8th Cir. 2011).
Nos. 14‐2238, 14‐2468, 14‐2855, 14‐2976 Page 4
Brown next challenges the court’s determination that she failed to present
sufficient evidence of pretext regarding her second failure‐to‐promote claim. Brown
maintains that the company fabricated its reason for hiring Walsh—that he was more
qualified—to justify deviating from its pattern of promoting a director to become the
division’s vice president at a time when she, an African‐American, was a director. But
Brown’s theory is not supported by sufficient evidence. Bujak explained that she hired
Walsh because he had experience in public accounting, mergers and acquisitions, annual
financial audits, and presenting to senior management. Brown does not dispute these
qualifications and responds that she had some experience in those areas, but this is
insufficient to create a fact issue over whether the disparity in qualifications between
Brown and Walsh was so great that no reasonable person could disagree that Brown was
better qualified. See Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 813 (7th Cir. 2005);
Milbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002).
Regarding retaliation, Brown asserts that the district court misapprehended the
nature of her protected activity: she identifies the protected activity as her meeting with
Bujak in the fall of 2008 rather than her EEOC filing. But that meeting does not constitute
protected activity because merely complaining in general terms about a supervisor’s
unprofessionalism without indicating a connection to a protected class, as Brown did at
the meeting, is insufficient. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th
Cir. 2006).
Brown also suggests that the court disregarded her attempt to establish a prima
facie case of retaliation under the indirect method, and she identifies two white
employees—Bruce Lane and Michael Cervenka—who, she says, reported to the same
supervisors but did not complain about race discrimination and were promoted to vice
president positions. The proposed comparator need not be identical to the plaintiff in
every conceivable way, see Coleman v. Donahue, 667 F.3d 835, 846 (7th Cir. 2012), but
Brown has provided no evidence of either employee’s performance history to allow a
useful comparison between Brown (who was operating over budget) and the proposed
comparators. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir. 2007);
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).
Brown next contests the district court’s discovery rulings.2 She argues for
example that the district court erred by refusing to compel the deposition of an HCSC
2 The appellees assert that we do not have jurisdiction to review the district court’s
discovery orders because Brown did not identify those orders in any notice of appeal, as
Nos. 14‐2238, 14‐2468, 14‐2855, 14‐2976 Page 5
representative because she proposed sufficiently narrow and specific topics. But the
district court did not abuse its discretion in denying her request because Brown sought
to depose HCSC about its compliance with other federal statutes, topics well beyond
Brown’s race‐discrimination and retaliation claims. See James v. Hyatt Regency Chicago,
707 F.3d 775, 784 (7th Cir. 2013); Cent. States, Se. and Sw. Areas Pension Fund v. Waste
Mgmt. of Michigan, Inc., 674 F.3d 630, 636–37 (7th Cir. 2012). Brown points also to the
court’s refusal to compel the deposition of Yvonne Broomfield, an African‐American
employee with no personal knowledge of pertinent events, but a court has the discretion
to deny a motion to compel where, as here, a deposition would not “aid in the
exploration of a material issue.” CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir.
2002) (citation and quotation marks omitted).
Brown next contends that the district court violated due process by imposing each
sanction without explaining its reasons or authority for doing so. But Brown overlooks
the court’s extensive and repeated warnings that her abuse of the judicial process may
result in monetary sanctions. In light of these warnings and opportunities to respond,
the court did not abuse its discretion by sanctioning her. See Judson Atkinson Candies, Inc.
v. Latini‐Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir. 2008).
Finally, regarding the calculation of the defendants’ costs and attorneys’ fees,
Brown argues that the district court erred by failing to inquire whether the hourly rates
were reasonable. But the defendants’ attorneys billed at their regular hourly rate, and an
attorney’s “actual billing rate for comparable work is presumptively appropriate.”
Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999) (citations and
quotation marks omitted).
We have considered Brown’s remaining arguments; none is developed or
substantial enough to warrant further comment.
Accordingly, we DISMISS appeal no. 14‐2238 as duplicative and appeal
no. 14‐2855 for lack of jurisdiction. We AFFIRM appeal nos. 14‐2468 and 14‐2976. Finally,
consistent with the parties’ stipulation on appeal, the costs due to the defendants are
required by Federal Rule of Appellate Procedure 3(c)(1)(B). But we liberally construe
that rule’s notice requirements, see JP Morgan Chase Bank, N.A. v. Asia Pulp & Paper Co.,
Ltd., 707 F.3d 853, 861–62 (7th Cir. 2013), and we may consider a discovery ruling as part
of an appeal of a final judgment, see United States ex rel. Chandler v. Cook County, 277 F.3d
969, 981 (7th Cir. 2002).
Nos. 14‐2238, 14‐2468, 14‐2855, 14‐2976 Page 6
reduced by $787.51. We ORDER Brown to pay the defendants $20,250.60 in attorneys’
fees and costs.