### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 2050

C YRIAC A BRAHAM , Plaintiff

- Appellant
,

v.

W ASHINGTON G ROUP I NTERNATIONAL , I NC

. and

URS CORPORATION , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the Western District of Wisconsin

. No. 12

- cv

- 198

- bbc

— Barbara B. Crabb
, Judge

.

____________________
A RGUED N OVEMBER 8, 2013

— D ECIDED S EPTEMBER 9
, 2014

____________________

Before P OSNER , R OVNER , and W ILLIAMS , Circuit Judges

. R OVNER , Circuit Judge

. Washington Group, Inc. (“Was hington Group”), an engineering, construction and manag ement services company, offered Cyriac Abraham a position as a “lead sc heduler” for a construction project in Wisconsin. After a few rounds of negotiations, Washington Group sent Abraham a letter offering him the title of “project control manager”

— a position higher up the chain of command than2 No. 13

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that of lead scheduler. In this suit, Abraham claims that Washington Group and its parent, URS Energy and Co nstruction (now URS Corporation) not only offered him the title, but also promised him that he would perform the d uties of a project control manager and then breached that promise. 1 Washington Group claims that Abraham unde rstood that it would give him the title of project control ma nager for purposes of increasing his salary but he would pe rform the functions of a lead scheduler on a day

- to

- day basis. We affirm the district court’ s grant of summary judgment for the Washington Group.

I. Ordinarily we would begin our opinion with a recitation of the facts, and in the case of an appeal from a dismissal on summary judgment, we would take those facts in the light most favorable to the n on

- movant, who in this case is the appellant, Abraham. Miller v. Gonzalez , No s . 11

- 2906, 12

- 2950, 2014 WL 3824318, *5 (Aug. 5, 2014). The district court, however, found that Abraham had violated the court’s summary judgment procedures by failing to respond properly to the def endant s ’ proposed findings of fact. In o rder to enable the court to determine what facts are disputed in a summary judgment motion, the district court judge r e-

1 Washington Group Internat ional, Inc. no lo nger exists as a legal entity. On March 23, 2012, Defendants filed a corporate disclosure state ment (R. 2) delineating that URS Energy and Construction, Inc. is the successor in interest to Washington Group and establishing that URS Corporation is not a proper defendant in this action. We will refer to the defendants in this case as “Washington Group.” The d efendants point out that “even if Plaintiff’s claims could survive summary judgment, unless Abraham were allowed to amend the complaint to name the only possible defen dant (URS Energy and Construction, Inc.), his complaint should be di smissed.” Because we are upholding the grant of summary judgment to the defendants, it is unnecessary to decide this issue.No. 13

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quires through her local rules (as many district court judges do), that the m ovant submit its proposed findings of fact in a particular manner. If the party opposing the motion for summary judgment wishes to dispute a fact, that opposing party must state her version of the fact and refer to evidence that supports that version in pa ragraphs numbered to corr espond with the movant’s facts. The court makes clear that if a party fails to follow the procedures, it will accept the properly proposed fact for purposes of evaluating the pr opriety of summary judgment. R. 6.

Abraham submitted only his own affidavit which did not respond to the defendant’s proposed findings
, contained several legal conclusion s, and failed to follow the rule i n other ways (for example, by failing to answer each nu mbered fact proposed by the moving party in separa te par agraphs , using the same number and stat[ing his ] version of the fact and refer [ing] to evidence that supports it. ) See Abr aham v. Washington Group , No 3:12

- cv

- 00198

- bbc, R. 26, p. 2

– 4; see also Id. R. 32, p. 2. In this appeal, Abraham does not a ppear to appeal the district court judge’s ruling that he viola ted the rule or the consequence imposed

— that is
, that the district court accepted all of the defendants’ proposed facts as true. And indeed it would be difficult for him to do so, as this Circuit ha s routinely held that a district court may stric tly enforce compliance with its local rules regarding su mmary judgment motions , including the precise local rule at issue here. Schmidt v. Eagle Waste and Recycling, Inc. , 599 F.3d 626, 630 (7th Cir. 2010) . W e review a district court’s applic ation of its own local rules for an abuse of discretion only

. Koszola v. Bd. of Educ. of City of Chicago , 385 F.3d 1104, 1109 (7th Cir. 2004). The affidavit Abraham submitted did not
meet the requirements of the district c ourt’s summary jud gment procedures and he made no attempt to correct his mi stakes after it was pointed out to him by the opposing party’s4 No. 13

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brief. At this point in the proceedings
, he objects (and only in his reply brief) solely to the characterization of hi s affidavit as a “sham affidavit
, ” a matter we will discuss along with the other legal analyses in the case. In the meantime, we will continue with the facts as found by the district court.

II. Washington Group was in the business of providing e ngineering, construction
, and management services to bus inesses and government entities. Wisconsin Public Service hired Washington Group to manage a construction project near Wa u sau, Wisconsin, called the Weston 4 project. In 2004, the plaintiff, Cyriac Abr aham
, was living in California and working on a short term project in Colorado. Because the job was ending, he began looking for a new position. Mark Maier, a third

- party recruiter
, contacted Abraham about a position as a lead project scheduler on the West on project. Abraham applied for the position and shortly ther eafter he had a telephone interview with B ob Villa, a project control manager with Washington Group

. Villa and Abr aham discussed the scheduler position and compensation in the $90,000 range. Afte r the in itial interview, Washington Group flew Abraham to Green Bay, Wisconsin
, to meet with Washington Group employees Chuck Meyer and Lynn Rohrbaugh, the latter of whom was the project control ma nager for the Weston 4 project. During the meeting, the thr ee discussed the project in general, but did not discuss Ab r aham’s specific duties and the Washington Group employees did not give Abraham any written materials during the meeting. After that meeting, Abraham also applied to Fru

- Con Corporation for a job as a project control manager on a pr oject in Sacramento
, California at a salary of approximately $127,000 a year. Abraham told Maier and Villa that he was going to accept the Fru

- Con offer as it was a managementNo. 13

- 2050 5

position with higher pay and it was closer t o his family who

were living in California. In response, Washington Group raised its offer to Abraham. Villa called Abraham and told him that Washington Group could offer him a salary co mmensurate with that of a project control manager although Abraham wou ld be performing the duties of a scheduler. In order to pay him the higher amount, Villa explained, his title would be that of project control manager, but he would be working under the supervision of another project control
manager. Around this time, Wash in gton Group also gave the title of project control manager to other employees in o rder to fill positions at higher pay. No one at Washington Group discussed performing any project control manager duties with Abraham. Washington Group sent Abraham a letter dated May 21, 2004
, which stated in part: We are pleased to confirm our offer of emplo yment to you with the Washington Group Intern ational, Inc. Your title will be Project Control Ma nager with a monthly salary of $8,750 and your a ssignment will be on our Weston Project in Green Bay, Wisconsin. Your start date is scheduled for June 1, 2004.

R. 16

- 2. The offer packet included other standard employment documents, but there was no written job description a ttached. Abraham accepted the offer on May 24, 2004 , a nd began working as scheduled on June 1, 2004. Before joining Washington Group, Abraham’s sole di scussion with any Washington Group employee about job d u ties was the one he had with Villa over the phone when he was told he would perform the duties of a sc heduler d espite his title as manager.6 No. 13

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For more than a year, Abraham performed his duties as a project scheduler, performing analyses on and managing the schedule, developing procedures
, and conducting weekly meetings. On May 27, 2005, Abraham sent the fol lowing

e

- mail to Villa. Unfortunately, we both missed or overlooked some points in our earnest desire to close the hi ring process speedily, some time in May 04. • It is a fact that I would not have come to [d efendant] if you had not offered a Manager pos ition. I knew the field title was “Lead Project Scheduler.” • You told me there would be a Project Controls Manager.

... I did not think he was going to get into scheduling and assumed he would leave that
to me entirely.
I think, for me to work as a scheduler under the instructions of some one, that stage has past [sic]. If I try to do that, it will be just a misuse of a val uable resource and I will be doing an injustice to the employer and myself.

... I do not have a pro ble m to accept the leadership [the project control manager] on this project. This is a large project and complex

... . Unfortunately no one has d efined what is the scope of my work

... . So I do request you to send me a job description and what you expect me to d o. You have hired me as Project Control Manager at grade 17. But you told me (or did I misunde rstand?) this Wednesday that you had no intention to place me as a Manager. Why? I would request you to look at the corporate HR policy on this p osition, relevan t part of which I have copied andNo. 13

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attached for your quick reference. As per this, a [project control manager] at grade 17 “Generally works under the direction of a business unit d irector, operations manager, regional office ma nager or project manager.” My situation is very different. Why?”

R. 15

- 1 at 1. Villa responded by email, stating, There is still a misunderstanding or miscomm unication between you and I

... . In our initial di scussions prior to you accepting [defendant’s] o ffer, the position I describ ed to you was that of the Lead Scheduler on the Weston 4 project

... . When you accepted our offer, my understanding was (and from our conversation this week you co nfirmed) that you recognized the position you were being hired for was Lead Scheduler and you would report to the [project control manager].

... Because of your experience and capabilities, you were offered a salary that was a grade 17 which has a corporate title of Project Controls Manager. You were hired at the corporate title (and salary) of Proje ct Controls Manager to fill the position of Lead Scheduler.

... We do have an organization on the project as you know. Greg is the [project control manager] with full responsibility for the group. But, Cyriac, you are a very important member of the project c ontrols team.

... You have full responsibility for managing the schedule on the project, in itself a major responsibility and one you should not take lightly. A major success fa ctor on the project will be meeting this schedule. A job description would be hel pful for you and you should discuss this with Greg.

...8 No. 13

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Id. at 2.

Abraham , in turn, responded to Villa’s email, stating, I really appreciate your reply. There is nothing in your reply I could disagree with except for the fact that I am not in the loop on many i ssues where I need to be on this project. I am upset because various discussions have [taken] place without me where schedule inputs were very important.

... Let us leave this discussion here. Greg may learn the value of delegation, or some day I may b e able to move into anot her project when a suitable opportunity ari ses.

... Id. (emphasis ours). In February 2006, Abraham applied for and then accep ted a p osition with another company which offered him a p osition in Connecticut with an annual compensation package of $150,000. He resigned from Washington Group on Febr uary 17, 2006, and worked his last day on March 3, 2006.
On March 1, 2012, Abraham filed suit in Wisconsin s tate

c ourt alleging that the Washington Group and its parent, URS Corporation breached its contract with him and mi srepresented the terms of his employment. Washington Group timely removed the case to the federal district court where the court granted the defendants’ motion for su mmary judgment in its entir ety. Abraham filed a timely Rule 6 0 motion for relief from judgment which the district court also denied. Abraham appeals only the breach of contract claim and, after a de novo review
, ( see Seiser v. City of Chic ago , No. 13

- 1985, 2014 WL 3907111, *4 (7th Cir., Aug. 12, 2014) ) , we affirm.No. 13

- 2050 9

I I I. Abraham contends that the Washington Group breached a contract by hiring him as a project control manager but failing to give him the corresponding duties. As the district court concluded, however, Abraham failed to identify any contract, oral or writt en, in which the Washington Group promised to give Abraham specific duties that were different than those to which he was assigned. Because of this concl usion, the court held that the case failed to present any gen uine disputes of material fact and the mov ant , Washington Group, wa s entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Townsend v. Cooper , No. 12

- 3620, 2014 WL 3511731, * 5 ( July 17
, 2014)

. On one issue the parties agree: The contract

— that is, Washington Group’s offer letter

— was unambiguous on its face. As such, under Wisconsin law, which governs this di spute, the interpretation of an unambiguous contract const itutes a question of law. Betz v. Diamond Jim's Auto Sales
, 849 N.W.2d 292, 299 (Wis. 2014). When the terms of a co ntract are unambiguous, a court must construe the contract according to its literal terms and we presume the parties’ i ntent is evidenced by the unambiguous words they chose. Tufail v. Midwest Hospitality, LLC , 833 N.W.2d 586, 592 (Wis., 2013). If the terms of a contract are unambiguous
, a court is barred from considering any extrinsic evidence such as prior or contemporaneous understanding or agreements between the parties. Id. at 593. Unambiguous contract language is given its plain and ordinary meaning, as it i s written. Id. at 592

. And under Wisconsin’s parol evidence rule, “ When the parties to a contract embody their agreement in writing and intend the writing to be the final expression of their agre ement, the terms of the writing may not be varied or contr adi cted by evidence of any prior written or oral agreement in10 No. 13

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the absence of fraud, duress, or mutual mistake. ” In re Spring Valley Meats, Inc. v. Bohen , 288 N.W.2d 852, 855 (1980)

. The only contract between the parties was the offer letter which straightforw ardly stated: Your title will be Project Control Manager with a monthly salary of $8,750 and your assignment will be on our Weston Project in Green Bay, Wi sconsin.

R. 16

- 2.

Thus the contract offered the following three things: (1) the title of project cont rol m anager, (2) a salary of $8,750 per month
, and (3) an assignment to the Weston Project in Green Bay, Wisconsin. Abraham received all three of these pro mised items. The letter does not contain any description of or any promise that Abraham would perform any specific d uties. In the employment discrimination context
, we have re cognized that it would not be prudent for a court to micro

manage an employer’s need for flexibility in assigning sp ecific job duties, at least where they do not materially and a dversely alter an employee’s position for discriminatory re asons. See e.g. Barton v. Zimmer, Inc.
, 662 F.3d 448, 457 ( 7th Cir. 2011); Stephens v. Erickson, 569 F.3d 779, 790

– 92 ( 7th Cir. 2009); Herrnreiter v. Chicago Housin g Auth.
, 315 F.3d 742, 744

– 4 6 ( 7th Cir. 2002). Abraham is before us with a contract claim, and not an employment discrimination claim, but the policy considerations can be extrapolated. W ashington Group entered into a contractual agreement to give Abr aham a specific salary and job ti tle at the Weston project. There are many reasons why an employer might decline to elaborate specific job duties in a contract , and the need for flexibility in managing the tasks of any particular project would be chief among them . It is the court’s job to respectNo. 13

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the terms of the contract and not manufacture additional terms that are missing. Seitzinger v. Com ty Health Network

, 676 N.W.2d 426, 41 (Wis., 2004) Although Abraham argues that the court should not have considered extrinsic evidence, in the same breath (or at least the same paragraph), he argues that the circumstances su rrounding his acceptance of the offer evinced an intent for him to become the lead project manager. He explains: Abraham rejected WGI’s offer of employment as a Lead Project Sched uler because he had received an offer of employment as a Project Control M a nager from another employer. When WGI learned of that offer, it sweetened the deal and sent Abr aham a letter offering him the Posit ion of Project Control Manager. (Appellant’s Brie f at 19). And at the same time as he crit icizes the district court judge for relying on parol evidence (Reply brief at 8)
, he urges us to consider his own extrinsic evide nce included in his affidavit

— first, the fact that he r ejected the initial lead schedu ler offer for a better one ( Id. at 19).

The court correctly determined, as the parties agreed, that the contract was unambiguous and not in need of e xtrinsic evidence for clarification. R. 26 at 12. Nevertheless, that extrinsic evidence would not have helped Abraham in any event. The evidence demonstrated that during the co nversations and negotiations prior to Washington Group ’s official offer letter, it offered Abraham a position as a project scheduler but with the salary and ti tle of a project manager

. If there was any doubt about that agreement, the parties r eiterated the ir understanding in the May 2005 e

- mail e xchange in which Villa stated, “You were hired at the corp orate title (and salary) of Project Controls Manager to fill the12 No. 13

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position of Lead Scheduler.” R

. 15

- 1 at 1. To which Abraham responded that “There is nothing in your reply I could dis agree with.” Id . at 2

. The only evidence contrary to this assumption was Abraham’s affidavit which stated that he had received a job description for the project manager position as part of the conversations surrounding the offer and attaching that d escription . Even if the district court judge accepted the parol evidence and considered the affidavit
, she was ultimately correct to dismis s the evidence in the affidavit, a s a deponent may not use an affidavit sworn to after a deposition to co ntradict deposition testimony without giving a credible e xplanation for the discrepancies. Cleveland v. Policy Mgmt. Sy s

. Corp.
, 526 U.S. 795, 806 ( 199 9); Pourghoraishi v. Flying J, Inc.
, 449 F.3d 751, 759 (7th Cir. 2006). The district court was u npersuaded by Abraham’s explanation

— which was simply that he forgot that he had earlier received the job description when he sat for his deposition

— as are we. Abraham objects to the characterization of his affidavit as a “sham affidavit” and indeed the term might imply more of a nefarious intent tha n actually su its the situation. But u n der Wisconsin law, a “sham affidavit” has a specific defin i tion. It is a des criptive term used to describe an “ affidavit that d irectly contradicts prior deposition testimony ” and therefore is considered “ generally insufficient to create a genuine issue of fact for trial, unless the contrad iction is a d equately e xplained.” Yahnke v. Carson
, 613 N.W.2d 102, 109 (Wis., 2000)

. Such was the case here. Abraham received all of the promises set forth in the u nambiguous written contract and for that reason there can be no disputed fact of material consequence and the district court correctly found that Washington Group was entitled to judgment as a matter of law. AFFIRMED