United States District Court, E.D. Wisconsin
ATHENA E. TIMMS, Plaintiff,
AMAZON, INC., Defendant.
DECISION AND ORDER
WILLIAM E. DUFFIN U.S. Magistrate Judge.
Athena E. Timms worked for AMAZON.COM.DEDC, LLC, (Amazon)
(whom she identified in her complaint as Amazon, Inc.) as a
stower at Amazon's Kenosha, Wisconsin fulfillment center.
Amazon terminated her employment in May 2016. (ECF No. 1 at
4.) On August 10, 2016, Timms, representing herself, filed a
complaint in this court alleging that Amazon discriminated
against her because of her age and race. (ECF No. 1.)
15, 2017, Amazon moved for summary judgment. (ECF No. 24.) In
doing so Amazon complied with this court's local rule
requiring a party moving for summary judgment against a pro
se litigant to provide the pro se litigant with the federal
and local rules and procedures related to summary judgment
motions. (ECF No. 24 at 2-9.) Amazon mailed its motion and
supporting documents to Timms by way of first class and
certified mail. (ECF No. 15.)
failed to respond to the motion within the 30 days permitted
under Civil Local Rule 56(b)(2). On July 26, 2017, Amazon
filed a reply in support of its motion for summary judgment,
noting Timms's lack of a response and asking that the
court grant its motion as unopposed. (ECF No. 30.) Amazon
sent its reply to Timms via first class and certified mail.
(ECF No. 30-1.)
31, 2017, the court received a letter from Timms in which she
states that she “did not receive any letters in May or
June to let me know that I was to send Amazon.com's
Attorney(s) a last response of final statement of a motion
for summary judgment.” (ECF No. 31 at 1.) She further
states that she and Amazon's attorneys had previously
agreed that the attorneys would send her a letter to remind
her of deadlines at least two weeks in advance. (ECF No. 31
at 2.) Timms asks that the court “excuse me of this
motion of the last summary of judgment statements of my case
against Amazon.com because I did not know that I was suppose
to turn in a motion summary of judgment statement by June 15,
2017.” (ECF No. 31 at 3.) Timms's makes additional
assertions regarding her case in her letter. Because Timms
does not ask the court to give her more time, nor is there
any hint that she intends to submit anything further, the
court understands that Timms intends her letter to be her
untimely response to Amazon's motion for summary
response to Timms's letter Amazon states that the only
agreement it ever had with Timms was to handle filing the
parties' joint Rule 26(f) report. It never agreed to give
her advance notice or “reminders” of any
deadlines beyond that which the rules require. (ECF No. 32 at
1.) To the extent Timms requests that the court accept her
letter as her response to the summary judgment motion, Amazon
does not object.
court recognizes and appreciates the difficulties that
non-attorneys have in representing themselves in federal
court. It is precisely for this reason that the court has a
local rule requiring that, when a party moves for summary
judgment, it must provide any unrepresented party with a copy
of the rules regarding summary judgment. Amazon complied with
this local rule and provided Timms with this information,
informing her of her obligation to respond. The court is
forgiving of the missteps that might befall a person
unfamiliar with the law trying to prosecute a case in federal
court. But even non-lawyers are required to comply with
certain minimum rules, which include meeting deadlines of the
court. See Members v. Paige, 140 F.3d 699, 702 (7th
Cir. 1998) (“[R]ules apply to uncounseled litigants and
must be enforced.”).
went beyond what the rules require and sent Timms the
documents by first class and certified mail; standard, first
class mail alone would have been sufficient. See
Fed. R. Civ. P. 5(b)(2)(C). Even though Timms has not
established that her failure to submit a timely response to
the summary judgment motion was the result of excusable
neglect, see Fed. R. Civ. P. 6(1)(b), because Amazon
does not object to the court's consideration of her
letter as a belated response to the summary judgment motion,
the court will consider it as such.
Timms never responded to Amazon's proposed findings of
fact. Amazon's motion informed Timms that the failure to
address another party's assertion of fact may result in
the court considering the fact undisputed for purposes of the
motion. (ECF No. 24 at 6 (quoting Fed.R.Civ.P. 56(e).) The
court has reviewed the uncontroverted facts presented by
Amazon (ECF No. 26) and concludes that they establish that
Amazon is entitled to summary judgment.
ignoring the fact that Timms did not dispute any of
Amazon's proposed findings of fact, and considering the
entirety of the record for plausible bases to support
Timms's claims, the court would still grant Amazon's
court has thoroughly reviewed the record in this matter,
including Timms's deposition (ECF No. 28-1), which the
court found to contain Timms's best explanation of the
basis for her claim (far better than her complaint or the
letter she submitted following Amazon's motion for
summary judgment). In her deposition Timms explicitly
abandoned her claim of race discrimination (ECF No. 28 at 28,
57), a fact which she confirmed in her letter to the court
received on July 31, 2017 (ECF No. 31 at 4). Thus, her only
remaining claim is that Amazon discriminated against her due
to her age.
is no direct evidence of discrimination (e.g., Timms
does not assert that her supervisor told her, “We have
to let you go because you are too old to do your job”).
Therefore, the only way Timms could prevail on her age
discrimination claim is through the indirect method of proof
and the burden-shifting framework. See Simpson v.
Franciscan All., Inc., 827 F.3d 656, 661 (7th Cir.
2016). “Under the indirect method of proving age
discrimination, the plaintiff has the initial burden of
producing evidence showing that (1) she is a member of a
protected class, (2) she was meeting the defendant's
legitimate expectations, (3) she suffered an adverse
employment action, and (4) similarly situated employees who
were not members of her protected class were treated more
favorably.” Id. If the plaintiff satisfies all
four elements she establishes a prima facie case of
discrimination, which then shifts the burden to the defendant
to “articulate a legitimate, nondiscriminatory reason
for the adverse employment action, at which point the burden
shifts back to the plaintiff to submit evidence that the
employer's explanation is pretextual.” Id.
(quoting Andrews v. CBOCS W., Inc., 743 F.3d 230,
234 (7th Cir. 2014)).
she was 47 years old at the time of the termination (ECF No.
28 at 14), Timms was a member of a protected class.
See 29 U.S.C. § 631(a). And Timms clearly
suffered an adverse employment action when Amazon terminated
her employment. However, Timms fails to submit evidence of
the other two elements of a prima facie case-namely, that she
was meeting Amazon's legitimate expectations, and that
similarly situated employees who were not members of her
protected class were treated more favorably.
thoroughly documented Timms's performance problems. (ECF
No. 28-8.) Despite this documentation and repeated
retraining, Timms insists that her performance was
“excellent.” (ECF No. 28 at 34, 49.) She contends
that all of the complaints that her supervisor received about
her performance from other departments, and all the
deficiencies in her work recorded in Amazon's systems,
were due to problems with the computers she used. (See,
e.g., ECF No. 28 at 19, 42-45, 46, 47.) But when pressed
to explain how the computer problems she alleged could result
in the sort of issues identified in her performance
evaluations, she acknowledged she has no explanation. (ECF
No. 28 at 45.) In light of the overwhelming evidence that
Timms was not performing satisfactorily, her assertion that
her performance was “excellent, ” which is
unsupported and in fact ...