# Unit ed Sta tes Cou rt of Appeals
F o r th e S e v e n th C i r c u i t C h i c a g o, I l l i n o i s 6 0 6 0 4
Submi tte d February 6, 2014 * Deci ded February 10, 2014

Before
DIANE P. WOOD, Chief Ju dge

MICHAEL S . KANNE, Circ uit Judge
JOHN DANIEL TIND ER, Circ uit Judge

No. 13-1931

CURTIS L. WESTBROO K, Plaintiff-Appellant,

v.
BOY S COUTS OF A MERIC A, Defen dant-Appellee

. Appeal from the United Stat es Di stric t Court for t he Nort hern Di stric t of Illinoi s, Eastern Di vis i on.
No. 10 C 4161

Rober t M. Dow, Jr., Judge

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Curtis Wes tbro ok appeals the dis mi ssalof hi s employment di scri minati on sui t after t he di stric t courtgr anted summ ary judgment t o the Bo y S couts of Americ a. We affi rm the j udgment. N O N P R E C E D E N T I A L D I S P O S I T I O N T o b e c i te d only i n a c c o r d an c e wi th F e d

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We fi rst not e that t he di stric t court adopted as undi sputed the facts s ubm i tte d i n the Boy Scouts’ Local Rule 56.1 St atement o f Mater i al Facts becau se Westbrook di d not fi le a response. We, to o, adopt those facts in our r eview. See United S tat es v. Fu nds in the Amount of $30,670, 403 F.3d 448, 454–55 (7th Cir. 2005); Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1108–09 (7th Cir. 2004). The Boy Scout s nati onal holds a Congr essi onal charter , see 36 U.S.C. § 309, but authorizes local c ounci ls to deli ver i ts scouting pro gr am. The localcounc i ls, although separately i ncorpor ated, must abi de by the national’s b ylaws, rules, an d reg ulati ons. The local c ounci ls make staffi ng deci si ons i ndependently, but they may no t employ someone who does not hold a pr ofessi onal commi ssi on from t he Boy S couts.
Westbroo k, a college g raduate, was hi red as a di stric t ex ecuti ve in 1993 b y Cro ssroads of Ameri ca Counci l, a local counc i l headquarter ed i n Indi anapoli s, Indi ana. In this posi tion Westbrook work ed wi th the v olunteer board o f di recto rs and
commu ni ty leader s to r ecrui t and tr ai n adult volunteer s for local yout h prog rams, promo ted tho se youth activi ties, and served as a ro le model for student v olunteer s. In June 1996 the Stat e of Indi ana charged Westbroo k wi th residen tial en tr y, a felony, and two mi sdemeanors, battery and invasi on of privacy. Those ch arg es event ually were di smi ssed, b ut the underlying conduc t serv ed as the basi s for Westbroo k bei ng held in contempt of court fo r v i olating a restr ai ni ng or der r elated to hi s di vo rce pro ceedings, and he w as sen tenced to 90 day s in jail. That sentence was condi tionally su spended, h owever , after Westbr ook had served only a few days in jail. Meanwhi le, after t he cri minal cas e had been fi led, Cro ssroads noti fi ed Westbroo k that i t was investigati ng hi m bec ause feloni ous condu ct i s a gro und for ter minati on. He was
sus pended i mmedi ately and t hen fi red a month lat er, and he lost hisprofessi onal commi ssi on from t he Boy S couts. In i ts di sch arg e lett er Cr ossroads explain ed that it may conver t a suspen si on into t ermin ation i f cri minal ch arg es are not resolv ed wi thi n 30 days, as w as hi s cas e. Cro ssroads remi nded Westbrook , however , that he could reapply for a commi ssi on from t he Boy S couts i f the pending crim i nal ch arg es were resolv ed i n hi s favor, as they later were.
Sinc e then Westbro ok has tr i ed uns ucc essf ully to r egain h i s professi onal commi ssi on from t he Boy S couts. Most r ecently, inJuly 2008, Westbrook contacted the humanresources di recto r for the Boy Scouts aski ng to be rein stated. The next mont h the Boy S couts notifi ed hi m by letter of i ts conclu si on that it was “n ot in the best intere sts” of the Boy Scouts “to gr ant yo u a professi onal commi ssi on.”N o
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Westbroo k then submi tte d a charge wi th the Equal Employment Oppor tuni ty Commi ssi on alleging that the Boy Scouts had di scri minated agains t hi m bec ause he i s black and, at that time, 49 years old. He also accu sed the Boy S couts of retaliati ng again st hi m for re port i ng to headquarter s that Cro ssroads maintai ns “paper uni ts,” whi ch Wes tbro ok describ es as s cout tr oops existing only o n paper. After receiving a right to sue lett er, Westbr ook fi led thi s acti on i n the nort hern di stric t of Illinoi s. Accompanying Westbro ok’ s compl ai nt were mot i ons to pr oceed i n forma pauperi s and requesting counsel. The di stric t court gr anted the IF P appli cati on but deni ed wi thout pr ejudic e Westbroo k’s request for couns el. The court conclud ed that enli sti ng counsel w ould be premature because i t was too e arly t o te ll i f Westbrook could capabl y liti gate the case on hi s own. WhenWestbroo k r enewed hi s request at a status hearin g a few months later, the cour t to ok t he matter under advis ement.
Six months into t he li tigati on, i n Janu ary 2011, the Boy Scouts move d to compel di scovery becau se Westbrook sti ll hadn’t served hisi ni tial d i scl osures, see F E D

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. P. 26(a)( 1), or r esponded to any o f i ts wri tte n di scovery requests. The Boy Scout s had given Westbrook three ext ensi ons to r espond before seekin g court i nterv ention. A magi strat e judge conv ened a hearin g; Westbro ok failed to appear, and the j udge gr anted the mot i on to compel.

The next week Westbro ok wr ote the court asserti ng that he lacked t he financi al resources to respond appro priately to the Boy Scouts’ dis cover y r equests and f or a thi rd tim e requested counsel, explai ni ng that he did not understand how to navigate the li tigati on pro cess . The di stric t j udge once againdeni ed thi s request. The court reasoned that Westbr ook personally possessed m ost of t he requested mater i als and information and thus whether r epresented o r not, he would need to collect documents an d formulate r esponses on hi s own. Although t he di scovery deadli ne had been extended numerous ti mes, Wes tbro ok sti ll di d not complete his responses to the Bo y S couts’ di scovery requests unti l many weeks after dis cover y had closed. Th e Boy S couts asked the di stric t court to sancti on Westbroo k under Fe deral Rule of Civi l Procedure 37 and i ts inherent power s for fai li ng to t i mely respond to i ts di scovery requests and di sregar di ng sever al court-or dered deadli nes. Th e di stric t court acknowledged Westbroo k’s effort s to comply wi th hi s di scovery obli gations bu t, neve rt heless , conclu ded that t hose efforts had “fallen s o far short o f the mark, ev en for pro se li tigants, that some sanc tions are warr anted.” Not i ngN o
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that Westbr ook consi stently had ci ted fi nanci al constrai nts to ex cus e hi s delays, the court decli ned to imp ose monetar y sancti ons. Instead, the court bar red Westbro ok fr om engaging i n further dis cover y and li mi ted hi s us e of documents or wi tnesses that were di scl osed late. The court also r eopened di scovery solely to allow the Boy S couts to depose Westbroo k, who then re newed hi s moti on for counsel.

Wi th that depo si tion in hand the Boy Scout s moved for summary j udgment. After rev i ewing the mot i on and sup port i ng mater i als, the di stric t court deni ed Westbroo k’s latest r equest for counsel. Th e court r easoned that Westbro ok had shown hi mself capabl e of presenting coherent ar guments and c oncluded that hi s li tigati on problems resulted from hi s noncompl i ance w i th deadli nes. More ov er, t he court explain ed, the factual and legal premi ses of the Boy S couts’ motion w ere no t diffi cult to understand, Westbrook ’s employment hi stor y was wi thi n hi s own knowledge, and the notic e the Boy Scouts had prov i ded acc or di ng to Local Rule 56.2 adequately explained to We stbroo k hi s obli gations in respondi ng to the motion for summary judgment.

In i ts motion for summ ary judgment, t he Boy S couts made s ever al arguments, i nclu di ng that We stbroo k had not submi tte d any di rect ev i dence of di scri minati on and could not establi sh a pri ma fac i e case u nder the indi rect metho d of proo f. See McDonnell Douglas Corp v. Green , 411 U.S. 792 (1973). The day after it was d ue, Westbroo k sub mi tte d hi s response to the Bo y S couts by e-mai l (ti me stamped 5:28 p.m .), bu t did not fil e i t wi th the dis tr i ct court. The Boy Scouts alert ed the court to his late subm i ssi on, moved t o str i ke it, and provided the court wi th a copy. The court denied the moti on to strike becau se Westbrook had never filed hi s response wi th the court, and so, the court reasoned, no r esponse exi sted to str i ke. In t hen granting sum mary j udgment for t he Boy Scouts, the dis tr i ct court ag reed wi th the defendant that We stbroo k lacked ev i dence of
race or age dis cri minati on or ret ali ation un der either method o f proo f.

Westbroo k then t i mely moved for reconsi derat i on under Feder al Rule of Ci vil Procedure 59(e), arguing that the dis tr i ct court should have accepted hi s response opposi ng summ ary judgment. He contended t hat computer pr oblems the day before that r esponse w as due h ad prev ented hi m from tim ely subm i tting i t. Westbro ok added that he mai led the response to the court on July 25, 2012 (two days after t he deadline) and attached recei pts from the post o ffi ce di splayi ng that dat e. The court rejected t hat explanation, reasoni ng that We stbroo k, as a pro se liti gant, had been told how to respond to the Boy Scouts’ mot i on and been gi ven nearly three months to do so. Westbroo k’s unti meliness could not be excused, the court conclud ed, given those procedural pr ecauti ons and hi s repeated fail ure to abi de by deadli nes througho ut theN o
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li tigati on. What’s more , the courtnoted, Westbr ook ’s recei pts di d not ev i dence that hi s response had been ti mely sub mi tte d. On appeal Westbroo k lis ts numerous c lai ms, n one of them addressi ng the merits of the gr ant of summ ary judgment. And o nly two o f those clai ms—b ro adly construi ng hi s bri ef—are pro perly befor e us. Of those Westbroo k princ i pally arg ues that the di stric t court wro ngly denied h i s requests for recr ui ted counsel. On Westbrook ’s view, hi s consi stent noncompli ance w i th deadli nes and l ack of suc cess wi th the mot i ons he fi led should h ave aler ted the cour t that he was i ncapab le of li tigati ng hi s cas e pro se.
The di stric t court di d not abuse i ts di screti on i n refusing to enli st couns el for Westbroo k. S ee Bracey v. Grondin, 712 F.3d 1012, 1016 (7th Cir. 2013). In rev i ewing the court’s deci si on, we look to whether the court appli ed the corr ect legal standard and acted reasonably. Jackso n v. Kotter, 541 F.3d 688, 700 (7th Cir. 2008). The court, when i t ruled i ni tiall y, r eci ted the cor rect leg al standard, aski ng whether Westbro ok had made a reasonable effort to o btai n couns el and was capabl e of li tigati ng hi s cas e. See Pruitt v. Mot e, 503 F.3d 647, 654 (7th Cir. 2007) ( en banc ). At the t i me only Westbro ok’ s compl ai nt was b efore t he court, and thus the judge r easonably conclu ded that r ecrui tin g counsel at that stag e would be premature. Se e Romanelli v. S ulie ne, 615 F.3d 847, 852 (7th Cir. 2010). Then b efore declin i ng Westbro ok’ s sec ond and thi rd mot i ons, the court r eviewed the Boy S couts’ di scovery requests and, agai n, reasonably conclud ed that Westbr ook —the person inpossess i on of the desi red inf or mati on and materials —was c apable of respondi ng wi thout pr ofessi onal assi stance. See Pruitt, 503 F.3d at 655 (ex plai ni ng that di stric t court ’s i nqui ry should “inclu de the tasks that normally at tend li tigati on” such as “evidenc e gat herin g, pre parin g and respondin g to motions an d other court fil i ngs”). And finally, before r ejecting Westbroo k’s fourt h request for counsel, the court e valuated the factual and legal content of the Boy Scouts’ mot i on for summary j udgment and conclu ded that he was cap able of addressing them. Thi s deci si on was reasonable: Westbroo k is college educated, he persuaded the court ag ai nst i mposing monetar y sanc tions for his di scovery mi shaps, and hi s cas e i nvolv es bas i c pri nci ples of employment dis cri minati on law. See Jackso n, 541 F.3d at 700–01 (concluding that distri ct court r easonably deni ed request for couns el i n unc ompli cated case where plain tiff had prepar ed coherent written subm i ssi ons and demons tr ated fami li arity wi th facts); Johnson v. Doughty, 433 F.3d 1001, 1007–08 (7th Cir. 2006) ( upholding court’ s deni al of plai nti ff’s requests f or couns el where case w asn’t “ov erly di ffi cult” and pl ai nti ff had fi led suc cess ful m otions).N o
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Westbroo k also presents sever al reasons purport ing to excuse hi s tardin ess in respondi ng to the Boy Scouts’ mot i on for summary j udgment, whi ch w e to get her construe as a sec ond appellate clai m that the dis tr i ct court er red in d enyin g hi s postj udgment motion. But Rule 59(e) “does not pr ov i de a vehic le for a par ty t o undo i ts own procedural fai lures,” Bordelon v. Chi. Sc h. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Ci r. 2000) (quotation marks and ci tation omi tte d); see Cin cin nati Life In s. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013), and Westbroo k did not o therwis e i denti fy a mani fest
err or of law or pr esent newly di scovered ev i dence that could not, thr ough the ex erci se of due di li gence, have been given to t he court befor e i t gr anted summ ary judgment,
see Heyde v. Pittenger, 633 F.3d 512, 521 (7th Cir. 2011); Heft v. Moo re, 351 F.3d 278, 282–83 n.1 (7th Ci r. 2003) . The di stric t court there fore did not abus e i ts di screti on i n denyi ng Westbro ok’ s postjudgment mot i on. See Egonmwan v. Cook Cnty. She riff’ s Dep’t, 602 F.3d 845, 852 (7th Cir. 2010).

We have r eviewed Wes tbro ok’ s remai ni ng contentions, and none has meri t. Accordi ngly, we A F F I R M the j udgment of the dis tr i ct court.