Dixon v. Pritzker

560 F. App'x 592
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 21, 2014
DocketNo. 13-2327
StatusPublished

This text of 560 F. App'x 592 (Dixon v. Pritzker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dixon v. Pritzker, 560 F. App'x 592 (7th Cir. 2014).

Opinion

ORDER

Jeremy Dixon appeals from an adverse decision at summary judgment in this action claiming that he was fired from his job at the United States Department of Commerce because of his sex and a congenital spinal disorder. The district court concluded that Dixon lacked evidence to establish a prima facie case of sex discrimination and had failed to exhaust his claim of disability discrimination. We affirm the judgment.

The following facts are recounted in the light most favorable to Dixon. See Chaib v. Indiana, No. 13-1680, 744 F.3d 974, 981-82, 2014 WL 685274, at *4 (7th Cir. Feb. 24, 2014). In September 2005 the Department hired Dixon as a part-time statistical clerk for the Census Bureau’s [594]*594National Processing Center in Jefferson-ville, Indiana. Dixon conducted phone interviews to collect statistical data for various surveys. His employment was subject to the satisfactory completion of a one-year probationary period, see 5 C.F.R. §§ 315.803, 315.804(b), during which the Department could fire him if it found him not fit or qualified for continued employment. 5 C.F.R. § 315.804(a). Counseling is not required.

During orientation Dixon received copies of the Processing Center’s written attendance policy. His schedule was set biweekly based on survey needs and his availability. He could change his final schedule only in emergencies with supervisor approval. If Dixon could not work a scheduled shift, he was required to call within the first hour and obtain a supervisor’s approval for the absence. Time and attendance records were maintained by a timekeeper, but it was Dixon’s responsibility to ensure the accuracy of those records. He could be fired for being absent without calling in and for excessive unapproved absences and tardiness.

According to Dixon, he also learned during orientation that the Processing Center has several unwritten policies that supersede conflicting written policies. The Branch Chief, said Dixon, stressed that management did not “just fire people” for poor attendance and was willing to work with employees to rectify such issues. Dixon also was told that he could avoid being marked tardy by working additional hours.

From the beginning of Dixon’s employment he was absent frequently. He missed five shifts during his first two months without documenting his explanation. Phyllis Smith, Dixon’s supervisor for time and attendance purposes, counseled him in November 2005 about his excessive call-ins. Smith emphasized the importance of committed attendance and warned Dixon in writing that “excessive absences (call-ins) without acceptable documentation, may result in administrative action being taken.”

A month later Dixon was assigned temporarily to Smith’s department to work on a survey. When he arrived a female coworker exclaimed, “Oh no! We have a man in our department!” in a contemptuous tone that made Dixon uncomfortable. During the next few weeks Dixon also overheard other female coworkers make what he interpreted to be disparaging comments about men, though at summary judgment he submitted no evidence about what the women said. There is no evidence that Dixon shared his concern with management, but on one occasion Smith herself told a female employee to disregard a question from a coworker because he was “just a man.”

Meanwhile, Dixon developed spinal pain that made sitting uncomfortable and caused him to miss work. Sometimes he provided management with a doctor’s note; sometimes he did not. Dixon did give management a note from his doctor prescribing use of a chair with arm rests, and he received a new chair within an hour. In the weeks that followed, Dixon says, he also requested a footstool and permission to work from home, but both requests were denied. Dixon also says he was assured by a scheduler that his absences would not be problematic if he provided adequate documentation. The scheduler cannot recall making that statement and, at all events, did not have the authority to approve absences or decide whether disciplinary action was warranted.

In May 2006, after Dixon had finished his assignment in Smith’s department, she questioned him about three days for which a timekeeper had marked him absent without calling in. He pointed out, and Smith [595]*595then confirmed, that on one of those dates he actually had been at work. Smith encouraged Dixon to review his time sheets and correct any other inaccuracies, but when he tried to do so, Smith was dismissive of his effort. When he last attempted to compare records with Smith, she laughed and told him, “Get out of here.”

On August B, 2006, Dixon missed work after his abusive stepfather threatened to assault him. Dixon called in and explained to a supervisor that the situation might prevent him from working for several days. The next day Dixon did not report for work or call in.

After learning about the August 4 absence, Smith reviewed Dixon’s file and noted his numerous absences (Smith still supervised Dixon’s time and attendance even though he no longer was assigned to her department). On August 21, 2006, she prepared a counseling form warning Dixon that he must improve his attendance record or risk serious administrative action, but she was unable to deliver the form or counsel him in person because Dixon did not report to work again after Smith had prepared the form.

As Dixon’s probationary period drew to a close, the Branch Chief reviewed his employment record in deciding whether he should be retained. In the ten months from October 26, 2005, through August 22, 2006, Dixon had missed work 63 times, including 17 times without management approval. He also had been tardy 27 times, requested schedule changes 26 times, and failed to call in on August 4. The Branch Chief noted that Dixon had been counseled in November 2005 and that Smith had prepared the undelivered counseling form in August 2006. The Branch Chief deemed Dixon’s attendance record among the worst she had seen in 12 years managing the Processing Center. She recommended that he be fired. The Human Resources department approved that recommendation after reviewing Dixon’s record with the Office of the General Counsel. Dixon received his letter of termination on September 6, 2006, detailing his “unacceptable attendance, unauthorized absence, tardiness, and failure to follow ... scheduling procedures.”

On September 13, 2006, Dixon sought precomplaint counseling for sex discrimination. See 29 C.F.R. § 1614.105(a). After the counselor issued her report, Dixon submitted a formal complaint with help from his union representative alleging sex discrimination only. When that allegation was being investigated, Dixon clarified his administrative complaint but did not assert disability discrimination. At no point did Dixon amend his administrative complaint to include an allegation of disability discrimination. See 29 C.F.R. § 1614.106(d).

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Bluebook (online)
560 F. App'x 592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixon-v-pritzker-ca7-2014.