# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 27 , 201 7 *
Decided March 2 9

, 201 7

Before

RICHARD A. POSNER

, Circuit Judge

DIANE S. SYKES

, Circuit Judge

DAVID F. HAMILTON

, Circuit Judge

No. 16

- 3891

TEAWANA EPPINGER

, Plaintiff

- Appellant

,

v

.

CATERPILLAR INC.

, CHRIS LOWERY, and
MIKE DENNIS

, Defendants

- Appellees

. Appeal from the
United States District Court
for the Central District of Illinois

.

No. 14

- cv

- 1492

Michael M. Mihm

, Judge

.

O R D E R

Teawana Eppinger claimed that Caterpillar Inc. and two of its managers fired her
because she is black and had used medical leave, and in retaliation for complaining
about discrimination. The district co urt granted summary judgment for the defendants

, reasoning that Eppinger lacked evidence linking her discharge to racial animus, her use
of medical l eave , or retaliation for complaints of discrimination

. On appeal Eppinger

* 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 F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 16

- 3891 Page 2

argues that the defendants and court misunderstood the substance of her claims

. We
affirm the judgment

.
Except as noted, the evidence at summary judgment was undisputed, and we

recount it in the light most favorable to Eppinger. See Chaib v. Geo Grp

. , Inc. , 819 F.3d 337, 340 (7th Cir. 2016). Eppinger had worked at Caterpillar for more than eight years when the company discharged her, citing recurring attendance issues. Caterpillar handles
unexcused absences through a 6

- step process , which advances from two “coaching

sessions ” conducted by the employee’s supervisor to a written warning and “attendance verification,” then two progressive suspensions, and ultimatel y indefinite suspension or discharge. Eppinger ’s supervisor, defendant Chris Lowery, initiated the first step in November 2011 after Eppinger had been late twice in the same week, the first time
almost 3 hours and the second

, 30 minutes. Two months later, in January 2012, Eppinger

was late again

, and Lowery counted that tardy arrival toward the second step

. ( Low e ry avers that he conducted coaching sessions after both instances, but Eppinger disputes this and also states that Lowery was not her supervisor un til December 2011

. ) After she
next arrived more than 90 minutes late in April

, Lowery issued a third

- step written warning and placed Eppinger on “ attendance verification

. ” This required her to provide

, upon her return from any day when she was late or absent, documentation “dated the
date of the absence” explaining why she had been unable to work.

Two weeks later Eppinger missed four consecutive days of work beginning on May 14, 2012. She previously had been approved for 480 hours of leave under the Fam ily
and Medical Leave Act of 1993

. S ee 2 9 U.S.C. § 2612 . Those preauthorized hours required no documentation, and to use them

, Eppinger needed only to call a n automated hotline
and select “ FMLA ” from the menu as the reason for her absence. For May 14 Eppin ger used vacation time . For May 15 she called the hotline to use FMLA leave

. But f or May 16
and 17 she did not use either of those options but instead just stayed home without calling in. When she returned to work, she gave Lowery a note from her doctor dated May 16 saying she would be absent “May 18, 2012 to May 18, 2012 .” Lowery caught the
obvious error and asked Eppinger for a note excusing the May 16 and 17 absence s , but Eppinger later said that her doctor had refused to sign a back dated note for th ose dates

. Lowery thus counted the two days together as a fourth absence and, as provided in the attendance policy, suspended Eppinger for three days. (Eppinger speculates that she was suspended because she did not document her use of FMLA leave on May 15

, but Lowery’s contemporaneous report and later affidavit

— both undisputed

— confirm that he asked her to document only the May 16 and 17 absences .)No. 16

- 3891 Page 3

Two months later in July 2012, Eppinger telephoned 40 minutes before the start of

a shift and told Lowery she would be late because her daughter had broken a window. Lowery agreed that Eppinger should “take care of the situation” before coming to work

, but he dispute s Eppinger ’s testimony that this response implied do cumentation wasn’t

necessary

. Eppinger bro ught none when she arrived 90 minutes late, prompting Lowery

to suspend her for 5 days

— the fifth step

.
Then in September 2012 Eppinger hit a forklift with the one she was driving. The ensuing shouting match with the other driver attracted Lowery’s attentio n, and he asked both employees to take a breathalyzer

. Eppinger failed

. Caterpillar told her she was fired for violating its drug and alcohol policy, but after she filed a grievan ce, the company reinstated her under a “Last Chance Agreement” requiring that she attend
substance

- abuse counseling and follow all company policies.

When she returned to work, Eppinger filed a charge with the Illinois Departmen t of Human Rights and the Equal Employment Opportunity Commission accusing Caterpillar of racial discrimin ation. When she first was suspended in May 2012, Eppinger alleged, Caterpillar had refused to accept her doctor’s note even though , she said, the company usually did not question or refuse medical documentation for employees of other races. And when she was suspended again in July 2012, Eppinger asserted, she had told Lowery she would be late to work and yet was “summarily walked out of the plant,” a procedure allegedly not used with employees of other races.
She also accused Lowery of asking her to take the breathalyzer without cause and insisted that only black employees are subject to “unwarranted” tests

. Lowery had initiated the breathalyzer, she though t , to retaliate for previously notifying Human

Resources a bout past incidents of racial discrimination.

That charge of discrimination was still under investigation when Eppinger was again late to work five months later. She did not give Caterpillar any documentation to explain her tardiness, and b ecause this epi sode counted as Eppinger’s sixth violation of
the att endance policy, she was suspended indefinitely. Defendant Mike Dennis, the company’s L abor R elations M anager, reviewed Eppinger’s circumstances. He noted that
she had cancelled two and miss ed another of the counsel ing sessions required by her

Last Chance A greement ( so far she had completed 9 of the program’s 20 hours)

. After input from a union representative, Dennis informed Eppinger that she was being discharged for attendance violations.

Eppinger sued . In her form complaint

, she ch ecked boxes indicating that Caterpillar , Lowery, and Dennis had discriminated against her because of her race inNo. 16

- 3891 Page 4

violation of Title VII of the Civil Rights Act of 1964

, see 42 U.S.C. § 2000e

– 2, and for us ing
FMLA leave

, see 2 9 U.S.C. § 2615

. She also accused the defendants of retaliating for asserting her rights. ( Lowery and Dennis were improperly named as defendants under
Title VII because an employer’s agents cannot be individually liable

. See Passananti v. Cook County , 689 F.3d 655, 677 (7th Cir. 2012). But the FMLA’s definition of “employer” is
broader than that of Title VII and encompasses some individual liability

. See 29 U.S.C. § 2611(4)(A)(ii)(I) (defining “employer” to include persons acting in the employer’s

interest ); Grazia dio v. Culinary Inst. of Am. , 817 F.3d 415, 422 (2d Cir. 2016) (observing that
several circuits have adopted an “economic reality test” for evaluat ing an individual supervisor ’ s potential liability under FMLA ); see also Horwitz v. Bd. of Educ. of Avoca Sch.
Dist. No. 37, 260 F.3d 602, 610 n.2 (7th Cir. 2001) (implying that FMLA liability for individuals is possible )

. )

In granting summary judgment, the district court concluded that Eppinger had not provided evidence from which a jury could find that her firing was motivated by
racial prejudice

. The court reasoned that Eppinger’s failure to meet Caterpillar’s legitimate employment expectations was undisputed and that she had conceded her inability to name any coworkers with a comparable disciplinary h istory who had been treated more favorably. As to the FMLA, the court continued, Eppinger did not even allege that she was denied leave for any day she had requested it and thus could not
establish that the defendants interfered with her benefits. The cour t also observed that she did not dispute the inability of Lowery and Dennis to deny use of FMLA leave
because that leave was preapproved.

Eppinger now contends that the district court misunderstood her lawsuit and ignored claim s that she was fired in viola tion of her employment contract and in
retaliation for “ exercising her rights under Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act

. ” Indeed

, Eppinger insists

, she never claimed that

“ she was racial[ly] discriminated against and denied FMLA rights

, ” and she does not
contest the district court’s handling of those claims

. But the district court did recognize,
and analyze at length , Eppinger’s claims that the defendants retaliated against her

.
A plaintiff may show retaliation in violation of Title VII by presenting evidence that statutorily protected activity caused her employer to take materially adverse action.
Burton v. Bd. of Regents of the Univ. of Wis . Sys. , No. 16

- 2982, 2017 WL 1032628, at * 3 (7th Cir. Mar

. 17, 2017); Turner v. The Saloon, Ltd. , 595 F.3d 679, 687 (7th Cir. 2010). The
court concluded that Eppinger’s retaliation claim lacks evidentiary support from which a jury could find a causal connection between her discharge and the administrativeNo. 16

- 3891 Page 5

complaint she lodge d with the EEOC and Illinois Department of Human Rights : Eppinger had incurred five documented attendance violations before she filed that charge of discrimination

, and ultimately she was not fired until after incurring a sixth
unexcused absence

. And , the court continued, there was nothing suspicious abo ut the timing of her discharge because nearly five month s had passed since s he filed the administrative complaint . Moreover, the court added, Eppinger’s discharge could not
raise an inference of retaliation because she did not point to other employees with comparable attendance issues who kept their jobs

. See Coleman v. Donahoe , 667 F.3d 835, 841 (7th Cir. 2012); Peele v. Country Mut. Ins. Co. , 288 F.3d 319, 330 (7th Cir. 2002).

The district court also analyzed Eppinger’s claim that she suffered reprisal for using FMLA leave. But the court concluded that this claim must fail because Eppinger
lacks evidence that she was disciplined for missing May 15, 2012, the only day she used
FMLA leave. T ha t Eppinger was disciplined for her u nexcused absences on May 16 and

17 , not the missed day on May 15, is undisputed

. Since Eppinger had offered no other evidence to support her claim of FMLA retaliation, the court granted summary judgment for the defendant s

.
Eppinger does not contest the substance of the district court’s reasoning; rather, she simply presses the untenable argument that the court ignored these claims and thus she has waived any appellate claim

. See O’Neal v. City of Chicago , 588 F.3d 406, 40 9 (7th Cir. 2009) ( explaining that arguments not raised on appeal are waived). And to the extent that Eppinger asserts that her employment contract was breached when she was
fired

, even if a contract claim could have been brought under the supplemental jurisdiction, Eppinger did not litigate that claim in the district court

. See Fednav Int’l Ltd.
v. Cont’l Ins. Co. , 624 F.3d 834, 841 (7th Cir. 2010) (“It is well

- settled that a party may not raise an issue for the first time on appeal. ” ); Ky les v. Morton High Sch. , 144 F.3d 448, 454 (7th Cir. 1998) (same).

We have reviewed Eppinger’s remaining arguments and none has merit.

AFFIRMED.