# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted September 2, 2020 *

Decided September 4, 2020

Before

DAVID F. HAMILTON, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-2572

TANIESHEIA HARDEN, Plaintiff-Appellant

,

v

.

COMCAST CORPORATION, Defendant-Appellee

. Appeal from the United States District
Court for the Northern District of Illinois,

Eastern Division.

No. 16 C 1931

Matthew F. Kennelly,
J udge

.

O R D E R

After Taniesheia Harden was fired from he r job in customer service, she sued her former employer, Comcast Corporation, for unlawful discrimination and a violation of

the Illinois Personnel Records Review Act. The district court entered summary judgment on Harden’s claim under the Act, and Comcast prevailed at a trial on the discrimination claims. Harden challenges on ly the entry of summary judgment under

* We have agreed to decide the case wi thout oral argument because the briefs and record adequately present the facts and le gal 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 NONPRECEDENTIAL DISPOSITION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 onl y in accordance with Fed. R. A pp . P. 32.1No. 19-2572 Page 2

the Act. Because in opposing summary judg ment Harden failed to point to evidence showing that Comcast violated the Act, and she cannot do so now, we affirm.

Harden sought her personnel records after Comcast fired her for performance issues. Her last job, after 15 years with Comcas t, was as a supervisor at a call center in Tinley Park, Illinois. After her discharge, Ha rden filed a discrimination charge with the Equal Employment Opportunity Commission. Th en, a couple months later, she emailed Comcast’s human-resources directors, requ esting a copy of “all of [her] employee records/files.” Comcast mailed her over 400 pages of her employment records. She responded by telling Comcast that she had not received her entire personnel file because the mailing did not include three specif ic categories of documents: (1) records of her weekly meetings with a supervisor duri ng the last seven months of work, (2) the forms Harden completed as a call-center su pervisor to document the resolution of customer complaints, and (3) email co rrespondence between her and a former subordinate that had led Comcast to plac e Harden on administrative leave shortly before she was fired. Comcast did not respond.

When Harden did not receive the three groups of further documents that she requested after filing her EEOC charge, Harden , represented by counsel, sued Comcast. Bringing two sets of claims, she alleged th at Comcast unlawfully discriminated against her and, by failing to provide the additional documents, violated the Illinois Personnel
Records Review Act, 820 ILCS 40/2.

Comcast moved for and received summary judgment under the Act. Noting that 820 ILCS 40/2 covers only records about a wo rker’s “qualifications” for “employment, promotion, transfer, additional compensati on, discharge or other disciplinary action,” Comcast filed an affidavit of compliance wi th the Act. Its human-resources director stated that, upon Harden’s request, Comcast mailed her “all documents in Comcast’s possession used or relied upon by Comcast to determine Harden’s qualifications for employment, promotion, transfer, addition al compensation, or other disciplinary action.” Acknowledging that it had not, until discovery in this case, sent her the three categories of further documents that she wanted, Comcast argued that the Act did not require disclosure of those materials. It expl ained that Harden filed her charge with the EEOC before requesting any records, 820 ILCS 40/10(f) excludes “records relevant to ... [a] pending claim between the employer and employee,” and the new request fell within that exception. (Comcast also conten ded that her claim failed on the ground that she offered no evidence that any nondisclos ure harmed her.) In response, Harden did

not contest Comcast’s statement that the thr ee categories of documents withheld untilNo. 19-2572 Page 3

discovery fell within an exception to the Ac t and that Comcast otherwise produced her personnel records. Based on Harden’s failure to contest Comcast’s position, the district court entered summary judgment for Comcast under the Act. A subsequent trial on the discrimination claims resulted in judgment for Comcast.

Harden, proceeding pro se on appeal, arg ues that even if her opposition to summary judgment was deficient, the district court should have assessed whether a reasonable jury could have conclude d that Comcast violated the Act. See Gerhartz v.

Richert , 779 F.3d 682, 686 (7th Cir. 2015) (even if nonmovant does not respond at all,

district court still must assess whether th e moving party has met its burden). But Harden invokes this principle incorrectly. First, she attempts to assert, for the first time on appeal, that while she was still employed by Comcast and before she filed her EEOC charge, she made two requests for her personnel records that Comcast ignored. But we must reject her “attempts to inject more fact s into the case on appe al than she presented

to the district court.” Burton v. Bd. of Regents of Univ. of Wis. Sys. , 851 F.3d 690, 695 (7th Cir. 2017). Harden waived reliance on any “specific factual arguments that were absent from her briefing below” because Co mcast never had an opportunity to counter
them, nor did the district court have a chance to pass on them. Id. Second, and similarly, with respect to the three categories of docu ments that she requested after she filed her EEOC charge, she cannot now assert that Comc ast needed to cite an exception to the

Act before she sued. She waived that argument too by failing to raise it in the district

court.

Waiver to the side, on our de novo review of the record in the district court, we conclude that no evidence suggests that Co mcast violated the Act. The Act requires that, upon an employee’s request, the empl oyer must allow the employee to “inspect any personnel documents which are, have b een[,] or are intended to be used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action, except as provided in [820 ILCS 40/10].” 820 ILCS 40/2. One such exce ption is “records relevant to any other pending claim between the employer and employee which may be discovered in a judicial proceeding.” 820 ILCS 40/10(f). The ev idence cited by Comcast and materially uncontradicted by Harden in the district co urt showed that Comcast provided her all required documents related to determin ing her qualifications for employment. Furthermore, Comcast permissibly excluded the additional docume nts that she sought after filing her EEOC charge. Those docume nts, bearing on her performance, were relevant to her pending claim, were discoverab le in this proceeding, and were in fact produced. See Landwer v. Scitex Am. Corp. , 606 N.E.2d 485, 489 (Ill. Ct. App. 1992)No. 19-2572 Page 4

(employer did not violate the Act by wit hholding documents, which otherwise would be subject to disclosure, based on statutory exception). Accordingly, the district court’s ruling on summary judgment was correct.

We need not consider Harden’s argument th at she was not required to show that she was harmed by a violation of the Act beca use she did not satisfy the initial hurdle of presenting sufficient evidence of a violation.

AFFIRMED