Patricia Scaife v. Racine County

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2745
Patricia Scaife,
Plaintiff-Appellant,
v.
Racine County, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-C-0541--Myron L. Gordon, Judge.
Argued January 11, 2001--Decided January 31, 2001
Before Flaum, Chief Judge, and Cudahy and Posner,
Circuit Judges.
Posner, Circuit Judge. The plaintiff brought this
suit against her former employer, a public
agency, and several of its employees, charging
that she had been terminated in violation of
federal laws forbidding discrimination. The
district court granted summary judgment for the
defendants.
The plaintiff’s principal argument is that the
district judge treated her unfairly by refusing
to allow her to file an untimely response to the
motion for summary judgment, while allowing the
defendants to file their pleadings late. We need
not decide whether the judge was guilty of any
unfairness, for if he was, his actions did not
harm the plaintiff. The grant of summary judgment
(or for that matter the denial, which, however,
being interlocutory, is rarely the subject of
appellate review) is reviewed de novo, which is
to say with no deference given the district
court. And so the fact that the court may not
have given due weight to the opposing party’s
legal arguments because the court refused to
accept an untimely submission of those arguments
does not harm the party. Flynn v. Sandahl, 58
F.3d 283, 288 (7th Cir. 1995); Tobey v.
Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir.
1993); Canada v. Union Electric Co., 135 F.3d
1211, 1212-13 (8th Cir. 1997); Burk v. K-Mart

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Corp., 956 F.2d 213, 214 (10th Cir. 1991). He can
make the arguments in his brief on appeal and
with the district court’s decision to grant
summary judgment receiving no deference loses
nothing from not having been able to make his
arguments to that court. That is the situation of
this plaintiff.
The situation would be different if the district
court had treated the plaintiff’s failure to file
a timely response as a waiver (more precisely, a
forfeiture, United States v. Richardson, No. 99-
4309, 2001 WL 59452, at *3 (7th Cir. Jan. 25,
2001)) and had therefore granted summary judgment
without consideration of the merits, for that
ruling if upheld would prevent us from
considering the merits. The plaintiff’s situation
would also be different from what it is here if
the district court had turned down a request by
her for further discovery and as a result had
truncated the record on appeal, obstructing our
review of the merits. In either case the
plaintiff would have been harmed by the district
court’s refusal to allow her to file a late
response to the motion for summary judgment. But
that court did not treat her failure to file as a
forfeiture; the defendants do not ask us to treat
it as a forfeiture; and the plaintiff’s lawyer
acknowledged at the oral argument of the appeal
that all the evidence on which he relies was
before the district court when that court ruled
and is therefore before us as well. Her complaint
is merely that she didn’t have a chance to make
certain legal arguments to the district court;
and such a complaint, even if justified (which we
needn’t decide), would not justify a remand, but
would merely require us to consider those
arguments carefully--which we would be obliged to
do in any event, assuming, as we are doing, that
the plaintiff is not to blame for having failed
to make the arguments to the district court.
So preoccupied is plaintiff’s counsel with the
alleged unfairness with which his client’s case
was treated by the district court that in our
court he has forfeited almost all his claims by
not arguing them. The only claim he argues is a
denial of due process. The defendants concede
that the plaintiff had a property right in her
public employment but argue that she received all
the process that was due and in particular
received a hearing before she was terminated for
her threatening and otherwise disruptive conduct
in the workplace. Although notified of the
hearing well in advance, she did not attend. She
was on medical leave at the time for treatment of
depression and anxiety that may conceivably have
contributed to her erratic and rather frightening
behavior at work. She argues that the fact that
the hearing was conducted in her absence shows

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that the defendants had already decided to fire
her, in which event the hearing was a sham and
did not satisfy the requirements of due process.
Ryan v. Illinois Dept. of Children & Family
Services, 185 F.3d 751, 762 (7th Cir. 1999);
Levenstein v. Salafsky, 164 F.3d 345, 351-52 (7th
Cir. 1998); Langley v. Adams County, 987 F.2d
1473, 1480 (10th Cir. 1993); Cremeans v. City of
Roseville, 861 F.2d 878, 883-84 (6th Cir. 1988).
But as there is no evidence that she notified any
of the defendants that she would be unable for
medical or any other reasons to attend the
hearing, and no evidence that they had
independent knowledge that her medical problems
were so severe that she could not attend, they
were entitled to treat her as a "no show" and go
on with the hearing. Cf. Cremeans v. City of
Roseville, supra, 861 F.2d at 883-84. An employee
cannot be permitted to hang on to his job just by
refusing to show up at a pretermination hearing.
Cliff v. Board of School Commissioners, 42 F.3d
403, 413-14 (7th Cir. 1994); Leary v. Daeschner,
228 F.3d 729, 743-44 (6th Cir. 2000); Pitts v.
Board of Education, 869 F.2d 555, 557 (10th Cir.
1989). There is no evidence, other than the fact
that the meeting was conducted in the plaintiff’s
absence, to suggest that it was pro forma, the
decision to fire her having already been made.
Affirmed.

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