Judges: Per Curiam
Filed: May 01, 2019
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 1, 2019* Decided May 1, 2019 Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 18-1905 KEVIN AUSTIN, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 14-cv-9823 CITY OF CHICAGO,
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 1, 2019* Decided May 1, 2019 Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 18-1905 KEVIN AUSTIN, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 14-cv-9823 CITY OF CHICAGO, J..
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NONPRECEDENTIAL DISPOSITION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 May 1, 2019*
Decided May 1, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐1905
KEVIN AUSTIN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 14‐cv‐9823
CITY OF CHICAGO, John Robert Blakey,
Defendant‐Appellee. Judge.
O R D E R
Kevin Austin was fired from his job as a driver for the City of Chicago after City
officials realized that he previously had been fired and designated as ineligible for
rehire. Austin then filed this employment‐discrimination suit, alleging that the City of
Chicago discharged him because of his race (black) and in retaliation for engaging in
protected activity. The district court entered summary judgment in the City’s favor.
Seeing no error in that decision, we affirm the judgment.
* 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. See FED. R. APP. P. 34(a)(2)(C).
No. 18‐1905 Page 2
Austin first worked for the City as a laborer in the Department of Streets and
Sanitation from 1998 until his termination in 2006. The department’s commissioner fired
Austin after an internal investigation revealed that he (1) had been arrested in 2005 for
knowingly possessing a stolen vehicle (though the criminal charge was later dismissed),
and (2) had failed to disclose a conviction from 1988 (when he was 17 years old) on his
initial job application. The investigator recommended that Austin “never be rehired.”
After an appeal and a full evidentiary hearing (at which Austin testified and was
represented by counsel), the City’s Personnel Board upheld Austin’s termination. The
Board found that he had knowingly possessed a stolen vehicle in violation of a
personnel rule that barred employees from engaging in “any act or conduct prohibited
by [law].” The Board’s decision did not mention his 1988 conviction, but Austin later
explained that he had omitted this conviction from his job application because he was a
minor at the time, so he did not believe that he was obligated to disclose it. He
subsequently had the conviction expunged from his criminal record.
Austin reapplied to work for the City in 2007 and 2010. Both times, the City
responded that his 2006 termination “for cause” made him ineligible for re‐hire. The
City’s 2010 response specifically noted that Austin was “ineligible for re‐employment
with the City of Chicago permanently.”
In 2012, Austin again applied to work for the City, and this time was hired as a
driver with the Streets and Sanitation department. During the hiring process, the City
conducted a background check without properly reviewing its ineligible‐for‐rehire list.
About a year later, Austin complained to human resources that several white
drivers were allowed to report to the same starting location every day, while he was
dispatched to locations all over the city. After this conversation, Austin was permitted
to report to a single location; he expressed satisfaction with this new arrangement.
In mid‐2014, City officials eventually noticed that Austin had been designated as
ineligible for reemployment. Based on this information and a review of Austin’s
personnel file, the Department of Streets and Sanitation Commissioner fired him.
After exhausting his administrative remedies, Austin sued the City for racial
discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e‐2(a)(1), 3(a). The district court entered summary judgment for the City,
concluding that no reasonable factfinder could conclude that either Austin’s race or his
No. 18‐1905 Page 3
complaints about discriminatory job assignments led to his termination. See Ortiz v.
Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).
On appeal, Austin has not meaningfully developed the arguments in his brief,
see FED. R. APP. P. 28(a)(8), but we touch upon the two arguments that we can discern.
Austin first contends that he was wrongly placed on the ineligible‐for‐rehire list for not
disclosing a 1988 conviction on his first job application because, he now insists, he was
“never convicted of a crime.” But not only did Austin admit (in a declaration and other
district court filings) that he was, in fact, convicted of a crime in 1988, he forfeited this
argument by failing to raise it in the district court. See Betco Corp., Ltd. v. Peacock, 876
F.3d 306, 309 (7th Cir. 2017) (“[T]his court has ‘long refused to consider arguments that
were not presented to the district court in response to summary judgment motions.’”).
Austin also argues that he should not have been placed on the ineligibility list
because he never was convicted of possessing a stolen vehicle. This argument misses
the point. The Personnel Board determined that Austin had engaged in conduct
prohibited by law—conduct that, regardless of whether it led to a criminal conviction,
violated the City’s personnel rules. As the district court noted, Austin “does not—and
cannot—dispute that these rules applied to him as a City employee.” Moreover, Austin
has not pointed to any evidence that would permit a reasonable jury to infer that he was
terminated because of his race or complaints about discriminatory job assignments,
rather than his violation of personnel rules. See Lewis v. Wilkie, 909 F.3d 858, 871 (7th Cir.
2018); Ortiz, 834 F.3d at 765.
AFFIRMED