author: SYKES, Circuit Judge.

text:
    Demiko MCCASTER and Jennifer Clark, Plaintiffs-Appellants, v. DARDEN RESTAURANTS, INC., and GMRI, Inc., Defendants-Appellees.
    No. 15-3258
    United States Court of Appeals, Seventh Circuit.
    Argued February 18, 2016
    Decided January 5, 2017

      Jamie Golden Sypulski, Attorney, Law Office Jamie Golden Sypulski, Chicago, IL, for Plaintiffs-Appellants.
    Gerald Leonard Maatman, Jr., Attorney, Jennifer A. Riley, Attorney, Seyfarth Shaw LLP, Chicago, IL, for Defendants-Appel-lees.
    Before WOOD, Chief Judge, EANNE and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

From roughly 2004 to 2012, Demiko McCaster and Jennifer Clark worked on and off at two Illinois eateries owned by Darden Restaurants. After quitting for good, they brought this proposed class action alleging that Darden failed to pay them pro rata vacation pay upon separation in violation of the Illinois Wage Payment and Collection Act (“IWPCA” or “the Act”), 820 III. Comp. Stat. 115/1-15. The district judge declined to certify their proposed class and granted summary judgment for Darden on Clark’s individual claim. McCaster then settled his claim with Darden but reserved the right to appeal the denial of class certification.

We affirm. The judge was right to deny class certification. The plaintiffs’ proposed class definition described an impermissible “fail safe” class, and their proposed alternative did not satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. And Clark’s individual claim fails. The IWPCA doesn’t mandate paid time off. It merely prohibits the forfeiture of accrued earned vacation pay upon separation if the employee is otherwise eligible for paid vacation under the employer’s employment policy. During the relevant time period, Darden’s policy on paid vacation covered only full-time employees. Clark was ineligible because she worked part-time.

I. Background

Darden operates more than 75 casual dining restaurants throughout Illinois under the brand names Olive Garden, Red Lobster, LongHorn Steakhouse, and several others. The plaintiffs worked intermittently as hourly employees at Darden-owned restaurants for a period of time spanning roughly eight years. McCaster worked periodically at a Red Lobster in 2004 and 2005 and more steadily from mid-2007 to early 2009. Clark worked at an Olive Garden from mid-2004 to October 2008 and again from 2009 to mid-2012.

During this time, Darden paid eligible employees an “anniversary payment” when they reached the annual anniversary of their hiring date. This anniversary payment essentially functioned as paid vacation — or at least that’s how Darden treated it for purposes of the obligations imposed by the IWPCA. When an employee ceased working for the company, Darden would include in the employee’s final paycheck the pro rata amount of anniversary pay he had earned prior to the date of separation. This pro rata date-of-separation payment comports with how the IWPCA requires employers to treat earned vacation pay. So from now on we’ll drop the company’s “anniversary pay” terminology and just call this vacation pay.

Two basic versions of the vacation-pay policy are at issue here. Under the first version — in effect prior to June 1, 2008— all employees were eligible. Under the second version, vacation pay was limited to full-time employees, defined as those who worked at least 30 hours per week. This second version of the policy took effect on June 1, 2008. Individual restaurant managers were responsible for determining employee start dates, hours worked, leaves of absence, termination dates, rehire dates, and other basic payroll information that contributed to an employee’s eligibility for earned vacation pay.

In this proposed class action, McCaster alleged that while the first policy was in effect, Darden failed to pay him accrued vacation pay when he left his job at Red Lobster, even though he had earned about 12 vacation hours. Clark, for her part, received all the vacation pay she was owed while the first policy was in effect; she alleged that after June 1, 2008, Darden did not pay her any vacation pay at all when she separated from employment.

In discovery Darden produced five spreadsheets containing statewide payroll information during the relevant time period. As the plaintiffs interpret this data, more than 1,200 employees left Darden’s employ without receiving the pro rata vacation pay they were owed. This interpretation, however, rests entirely on a “declaration” from a paralegal who works at the law firm of one of the plaintiffs’ attorneys. The judge struck the declaration because the paralegal had no personal knowledge of the data, lacked the expertise to interpret it, and the plaintiffs had not designated her as an expert witness. The plaintiffs challenge that ruling on appeal, but they provide no good reason to disturb it. Regardless, the paralegal’s declaration is immaterial to our decision.

The plaintiffs moved for class certification and proposed the following class definition: “All persons separated from hourly employment with [Darden] in Illinois between December 11, 2003, and the conclusion of this action[] who were subject to Darden’s Vacation Policy ... and who did not receive all earned vacation pay benefits.” The district judge rejected this definition because it described an improper fail-safe class. The judge also rejected the plaintiffs’ proposed alternative definition because it failed to meet the requirements of Rule 23.

In the meantime Darden moved for partial summary judgment on Clark’s individual IWPCA claim. The' company argued that no violation of the Act had occurred because during the relevant time period, only full-time employees were eligible for vacation pay and Clark worked part-time. The judge agreed and granted the motion. McCaster settled his individual claim with Darden but reserved the right to appeal the denial of class certification. This appeal followed.

II. Discussion

The plaintiffs seek reversal of the judge’s decision denying class certification. Clark also asks us to reverse the judge’s decision rejecting her IWPCA claim on the merits. The latter issue is quite straightforward, so we’ll take it up first.

A. Clark’s IWPCA Claim

Clark admits that she received all the vacation pay she was owed under Dar-den’s old policy. After June 1, 2008, she was ineligible to receive paid vacation. The company’s new vacation-pay policy, which took effect on that date, covers only full-time employees, defined as those who work at least 30 hours per week. Clark did not qualify because she worked part-time.

Clark concedes the point but argues that if an employer provides paid vacation to its full-time employees on a pro rata length-of-service basis, it may not deny this same benefit to its part-time employees. The district judge rejected this novel interpretation of the IWPCA, and rightly so. It has no support in the text of the Act, its implementing regulations, or in Illinois cases interpreting it.

The relevant provision of the IWPCA states:

[WJhenever ... [an] employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all vacation time earned in accordance with such contract of employment or employment policy, the monetary equivalent of all earned vacation shall be paid to him or her as part of his or her final compensation at his or her final rate of pay and no ... employment policy shall provide for forfeiture of earned vacation time upon separation.

820 III. Comp. Stat. 115/5 (emphases added). This text plainly doesn’t mandate paid time off; by its terms, the Act merely prohibits the forfeiture of accrued earned vacation pay. Whether an employee has earned paid vacation in the first place depends on the terms of the employer’s employment policy.

The Illinois Department of Labor has promulgated regulations carrying this anti-forfeiture rule into effect. In relevant part the regulations state that “[wJhenever an ,.. employment policy provides for paid vacation earned by length of service, vacation time is earned pro rata as the employee renders service to the employer.” III. Admin. Code tit. 56, § 300.520(a) (2016).

Taken together, the statute and regulation require that if an employer awards paid vacation on a length-of-service basis, employees are entitled to payment for accrued, unused earned vacation on a pro rata basis upon separation.

Clark hangs her hat on Golden Bear Family Restaurants, Inc. v. Murray, 144 Ill.App.3d 616, 98 Ill.Dec. 459, 494 N.E.2d 581 (1986), but that case is easily distinguished from this one. The employment policy at issue in Golden Bear provided that paid vacation time accrued daily but separating employees did not receive payment for accrued earned vacation unless they were “actively on the payroll ... on the Wednesday preceding January l.” Id., 98 Ill.Dec. 459, 494 N.E.2d at 583. The court held that this condition — active employment on a specific calendar date— worked a forfeiture of accrued earned vacation pay in violation of the IWPCA and the pro rata regulation. Id., 98 Ill.Dec. 459, 494 N.E.2d at 589.

Another Illinois appellate decision makes it clear that Golden Bear stands for the proposition that a length-of-service paid-vacation policy violates the IWPCA’s anti-forfeiture rule when it conditions payment of accrued earned vacation to employment status on a specific date. See Mueller Co. v. Dep’t of Labor, 187 Ill.App.3d 519, 135 Ill.Dec. 135, 543 N.E.2d 518, 521 (1989) (explaining that accepting the employer’s position “would require us to find an employee ‘earns’ his vacation benefits for a whole year on the basis of his employment status on a single day, ... [which] would defy the common understanding of the word ‘earn’ and we decline to adopt it”).

The policy at issue here differs fundamentally from the policy challenged in Golden Bear. Under the June 1, 2008 policy, full-time Darden employees who separate from the company receive payment for earned vacation pro rata based on length of service, as the IWPCA and its implementing regulation require. So if a full-time employee ceases work in the middle of a year, he receives vacation pay in proportion to how long he has worked that year. In marked contrast to the Golden Bear policy, this one doesn’t condition receipt of earned vacation pay to employment status on an arbitrary date. It simply limits the paid-vacation benefit to full-time employees. Nothing in "the IWPCA or the implementing regulation prohibits this.

Under the policy that was in effect on and after June 1, 2008, Clark was ineligible for paid vacation because she did not work full-time. Because she did not earn any paid vacation in the first place, no violation of IWPCA’s anti-forfeiture rule occurred.

B. Class Certification

We review the judge’s decision denying class certification for abuse of discretion. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 755 (7th Cir. 2014). An abuse of' discretion can occur “when a district court commits legal error or makes clearly erroneous factual findings.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d 426, 433 (7th Cir. 2015) (quoting Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489, 498 (7th Cir. 2013)). The plaintiffs had the burden to satisfy the district court that their case met the requirements for class certification under Rule 23. Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 373 (7th Cir. 2015).

The initial skirmish on appeal centers on whether the proposed class definition describes an impermissible “fail safe” class. A case can’t proceed as a class action if the plaintiff seeks to represent a so-called fail-safe class — that is, a class that “is defined so that whether a person qualifies as a member depends on whether the person has a valid claim.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). A fail-safe class is impermissible because “a class member either wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment.” Id.

McCaster and Clark sought to represent a class of “[a]ll persons separated from hourly employment with [Darden] in Illinois between December 11, 2003, and the conclusion of this action[ ] who were subject to Darden’s Vacation Policy ... and who did not receive all earned vacation pay benefits.” (Emphasis added.) Under this definition class membership plainly turns on whether the former employee has a valid claim. That is. a classic fail-safe class, and the district judge properly rejected it.

As we’ve explained elsewhere, however, the problem of a fail-safe class “can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis.” Id. In their fallback argument in the district court, the plaintiffs suggested that the defect in their class definition could be cured by simply excising the phrase “and who did not receive all earned vacation pay benefits.” With this language removed, the proposed class would be defined as “[a]ll persons separated from hourly employment with [Darden] in Illinois between December 11, 2003, and the conclusion of this aetion[ ] who were subject to Darden’s Vacation Policy.”

This alternative is indeed free from fail-safe concerns. Still, the judge rejected it, this time for failure to satisfy the requirements of Rule 23. That was not an abuse of discretion.

“A district court may certify a case for class-action treatment only if it satisfies the four requirements of Federal Rule of Civil Procedure 23(a) — numerosity, commonality, typicality, and adequacy of representation — and one of the conditions of Rule 23(b).” Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 493 (7th Cir. 2012) (citing Fed. R. Civ. P. 23). The plaintiffs sought certification under Rule 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affecting individual members.” Predominance is “similar to Rule 23(a)’s requirements for typicality and commonality, [but] ‘the predominance criterion is far more demanding.’” Messner, 669 F.3d at 814 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The judge focused most of his attention on the commonality question under Rule 23(a). This inquiry overlaps with Rule 23’s other requirements and is ultimately dis-positive here.

The Supreme Court has explained that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury5 ” at the hands of the same defendant. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). But it’s not enough for the plaintiffs to show that class members “have all suffered a violation of the same provision of law.” Id. at 350, 131 S.Ct. 2541. Instead they must show that “the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members.” Suchanek, 764 F.3d at 756. “The critical point is ‘the need for conduct common to members of the class.’ ” Id. (quoting In re IKO Roofing Shingle Prods. Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014)). Put somewhat differently, the class members’ claims must depend on a common contention that is “capable of classwide resolution.” Wal-Mart, 564 U.S. at 350,131 S.Ct. 2541.

The plaintiffs haven’t satisfied this bedrock requirement for class certification. Their proposed alternative class consists of all separated employees from December 11, 2003, to the present. But they havent identified any unlawful- conduct on Dar-den’s part that spans the entire-class and caused all class members to suffer the same injury. Even on appeal they haven’t pointed to any unlawful practice or act common to the class (as they have alternatively defined it). They do not contend, for example, that Darden’s pre- or post-June 1, 2008 vacation-pay policies facially violate the IWPCA. Nor have they alleged that Darden had a statewide practice of withholding payment of accrued earned vacation — much less supplied evidence that could support such a finding. Rather, they simply argue that some separated employees like McCaster did not receive all the vacation pay they were due under the applicable policy. That may be true, and if so, those individual cases of nonpayment would be IWPCA violations. But establishing those violations (if there were any) would not involve any classwide proof.

The plaintiffs do suggest one possible common question: whether Darden’s vacation-pay policies — both before and after June 1, 2008 — are length-of-service policies subject to the pro rata requirement of the IWPCA and its implementing regulation. That is indeed a common question, but it’s not at issue here.

The Supreme Court noted in Wal-Mart that “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Id. at 349, 131 S.Ct. 2541 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009)). The Court took pains to clarify that not any common question will suffice .to support class certification. Instead, .a putative class-action plaintiff must.identify a common question, the answer-to which “will, resolve an issue that is. central to the validity of each one of the claims in one stroke.” Id. at 350, 131 S.Ct. 2541.

McCaster and Clark haven t done that. As we’ve already explained, the common question they proposed for resolution is really no question at all. There’s no need to decide whether Darden’s “anniversary pay” policies are length-of-serviee policies to which the IWPCA’s pro rata requirement applies. They are. Darden treats them as such. The case thus raises only an amalgam of individual IWPCA pay claims by McCaster, Clark, and other separated employees dating from late 2003 to the present. These claims may (or may not) be valid based on the employee’s particular circumstances; resolving them depends entirely on each employee’s individual work history at a Darden restaurant and the specific payroll practices of the managers of the restaurants where they worked. In other words, resolving the proposed class members’ claims doesn’t center on any question common to the class, but instead turns entirely on facts specific to each individual class member’s claim.

The plaintiffs’ failure to satisfy the commonality requirement is fatal to their request for class certification. That necessarily means that they have not satisfied Rule 23(a)’s typicality requirement, much less the more strenuous predominance requirement of Rule 23(b)(3). Class certification was properly denied.

AFFIRMED.

      . Darden owned the restaurants through its wholly owned subsidiary GMRI, Inc., also a defendant. We will refer to the defendants collectively as "Darden.”

      . This regulation has been repeatedly affirmed as a reasonable interpretation of the IWPCA. See People ex rel. III. Dep't of Labor v. Gen. Elec. Co., 347 Ill.App.3d 72, 282 Ill.Dec. 555, 806 N.E.2d 1143, 1149 (2004); Mueller Co. v. Dep’t of Labor, 187 Ill.App.3d 519, 135 Ill.Dec. 135, 543 N.E.2d 518, 520 (1989) (explicitly reaffirming Golden Bear after amendments were made to the IWPCA); Golden Bear Family Rests., Inc. v. Murray, 144 Ill.App.3d 616, 98 Ill.Dec. 459, 494 N.E.2d 581, 588 (1986).

      . Illinois courts contrast length-of-service vacation policies with "forward looking” vacation policies, which provide vacation to employees for a given year at the beginning of that year. Under the latter policy, the amount of vacation time employees receive in a given year is not contingent on how much they work that year. See, e.g., General Electric, 282 Ill.Dec. 555, 806 N.E.2d at 1152 ("[BJecause an employee was given all of his or her vacation days for the year on the first of the year, the policy was forward-looking....”). As we've noted, Darden concedes that its policy is a length-of-service policy.

      .The opinion actually quotes the policy as limiting vacation pay to employees who were "actively on the payroll ... on the Wednesday proceeding January 1.” Golden Bear Family Rests., 98 Ill.Dec. 459, 494 N.E.2d at 583 (emphasis added). The word "proceeding” is obviously a typographical error.

      . Our decision in Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012), cert. granted, judgment vacated, — U.S. —, 133 S.Ct. 1722, 185 L.Ed.2d 782 (2013), is not to the contrary. In Ross we accepted a class defined as employees “who were subject to defendants’ unlawful compensation policies.” Id. at 906, But the indefiniteness in that class definition was substantially ameliorated by the content of the judge's certification order. Id. More fundamentally, the Supreme Court vacated our decision in Ross, and on remand the case was settled before it could be revisited. A vacated panel opinion has no prece-dential force. County of Los Angeles v. Davis, 440 U.S. 625, 634 n.6, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. Love, 706 F.3d 832, 840 (7th Cir. 2013). We suggested otherwise in a stray footnote in Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 375 n.3 (7th Cir. 2015), but we now clarify that Ross has no precedential value.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    Reginald HART, Plaintiff-Appellant, v. AMAZON.COM, INC., Defendant-Appellee.
    No. 16-2793
    United States Court of Appeals, Seventh Circuit.
    Submitted December 21, 2016
    Decided January 6, 2017
    Reginald Hart, Pro Se.
    Chris Hagale, Attorney, Bartlit, Beck, Herman, Palenchar & Scott LLP, Chicago, IL, for Defendant-Appellee.
    Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges.
   POSNER, Circuit Judge.

A very unusual case, this. The plaintiff, unrepresented by counsel (the district judge had recruited counsel initially, who, however, upon discovering that the suit was groundless, requested and was allowed to withdraw from the case, leaving the plaintiff to proceed pro se), has sued Amazon, claiming that it permitted third parties to advertise on its website six counterfeit copies of books called Vagabond Natural and Vagabond Spiritual that the plaintiff had written and self-published (that is, published himself rather than handed to a publisher). According to his complaint he had written and published these books in order “to raise money and bring an end to vagabondage” by detailing his experiences as a vagabond (a homeless man). After self-publishing Vagabond Spiritual, however, he had decided not to release it to the public, yet it too had been advertised on Amazon.

He claims to have been surprised and angered to discover that hard-cover copies of both books were being advertised on Amazon by booksellers to whom he had not (he says) sent any copies of his books. He says he learned that a cousin of his had purchased a copy of each of his books advertised (without his authorization) on Amazon. He has sued Amazon on a variety of grounds, but all amounting to alleging a theft of his intellectual property after Amazon refused his repeated requests to remove the advertisements for the books from Amazon’s website (though eventually, relenting, Amazon did remove them). He insists that legitimate sales of his books would have generated “millions of dollars for Amazon” and allowed him “to end homelessness [and not only for himself] both in the U.S. and abroad,” but that instead Amazon “forcefully exploited” his books by counterfeiting them “for its own commercial use.”

The eventual removal of Hart’s titles from Amazon’s listings did not deter him from pressing federal and state claims in this lawsuit ranging from copyright infringement and aiding and, abetting counterfeiting to intentional infliction of emotional distress. He claims to have examined the copy of each book purchased by his cousin and determined that all of them were unauthorized reproductions. He claims to be certain of this because genuine copies (that, is, copies that he had produced himself) would bear “indi-cia of authenticity known only to him”— namely, his fingernail indentations on the covers.

The district judge evaluated Hart’s complaint on a motion by Amazon to dismiss and concluded that it fails to state a claim. He reasoned that Hart had failed to make a plausible allegation that Amazon had copied his works (an expensive undertaking) rather than simply provided the platform through which third-party vendors sold authentic, original copies of the books — probably authorized by the author to do so.

There are self-published books advertised on Amazon but also books published by Amazon — the author sends his or her manuscript to Amazon* which publishes it online and advertises it. (An example is a novel by Heather Refetoff called Quartet: A Novel in Two Parts (2012).) One might have expected Hart to send his manuscripts to Amazon to publish online, but he didn’t; the books bearing his titles that are advertised on Amazon are hard copies only, rather than online copies, and are almost certainly his self-published books because they are identical to those books. Only six copies of the books were sold by Amazon.

There is more that is wrong with his case. There is no plausible allegation that if (a big if) the books sold by Amazori are counterfeits, Amazon was aware of the fact. Amazon provided the platform on which third-party sellers sold the secondhand books and shipped them directly to buyers, but can’t be expected to have verified the authenticity of the author or authors of them. His only explanation for calling them counterfeits is the absence of his fingernail indentations from the books, yet he did not give the court copies of the books on which he had scratched those indentations. Instead he provided the court with photographs of the purported “real” and “fake” books — but the two types of book are in all respects identical. Neither reveals any fingernail marks.

Granted, there is counterfeiting of books (especially textbooks), in which Amazon may be involved to the extent of advertising and selling such books, though without necessarily knowing they’re counterfeit. See, e.g., Eliza Green, “The Problem of Fake Books on Amazon,” May 9, 2012, http://elizagreenbooks.com/the-problem-of-fake-books-on-amazon/ (visited Dec. 24, 2016, as was the next website cited). But counterfeiting can’t be presumed. For example, “all of the apparent copycat books that Fortune found on Amazon were made through CreateSpace, which is a division of Amazon.” Mario Aguilar, “Amazon Is Overrun With a Plague of Bestseller Knockoffs,” April 16, 2012, http://gizmodo. com/5902283/amazon-is-overrun-with-a-plague-of-fake-books. Hart’s obscure self-published titles are a far cry from the pirated bestsellers regularly found on Amazon, and his assertion that the Internet giant must have undertaken the cost of reproducing his hardcover books because they were “not sourced” by him and lack his nail indentations (when neither do his self-published books, if one may judge from the photos) doesn’t meet even a minimum standard of plausibility. The judgment of the district court dismissing his suit with prejudice is therefore

Affirmed.


author: POSNER, Circuit Judge. SYKES, Circuit Judge, KANNE, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ryan L. GIBBS, Defendant-Appellant.
    No. 16-1747
    United States Court of Appeals, Seventh Circuit.
    Argued December 13, 2016
    Decided January 6, 2017
    Amanda A. Robertson, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee. ■
    Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before POSNER, KANNE, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216-month sentence (i.e., 18 years, compared to the 15 and two-thirds years that would be the length in years of a sentence of 188 months, the top of the guideline range), and that was the sentence that the district judge imposed and that the defendant’s appeal challenges.

The judge explained that he was imposing a sentence significantly higher than the top of the defendant’s guideline range on the basis of the “[18 U.S.C. § ] 3553(a) [sentencing] factors.” He called the defendant “a poster child for being a career offender,” and told him “unfortunately you may be one of those people that will never be able to conform to be a law-abiding person.” He quoted loosely from the section 3553(a) factors, saying none too clearly that

When I look at the 3553(a) factors apart from the “nature and circumstances of the offense,” your “history and characteristics” of you as a defendant does [sic] not indicate that there should be any leniency at all; that they [antecedent unclear] “reflect the seriousness of the offense,” “promote respect for the law,” which your history and characteristics indicate that you have no respect for the law; “provide just punishment.” Nothing — No previous sentence that this Court has imposed or other Courts have deterred you from your criminal conduct.

Neither the government, in recommending a 216-month sentence, nor the district judge, in imposing it, attempted a sophisticated analysis of the likely consequences for the defendant, his family, and society (primarily the persons to whom he sold illegal drugs) of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range. Judging from the government’s brief and the judge’s sentencing statement, both- the prosecution and the judge based the 216-month sentence (proposed by the government, imposed by the judge) on a hunch. As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable. And because federal prosecutors are free to suggest any sentence within the statutory range, and a- federal district judge has broad latitude in picking the sentence to impose within that range, and because the briefs and argument of defense counsel in this case bordered on the perfunctory — the argument being that the judge should have reiterated his reasons for imposing the 216-month sentence, though as far as appears his prior explanation included all the considerations (of which we’ve noted the main ones) that entered into his decision — the sentence must be affirmed.

Some consideration, however, should be given to the possibility of basing a prison sentence — at least a very long one (and an 18-year sentence is very long) — on something other than a hunch. The work of the U.S. Sentencing Commission in formulating sentencing guidelines provides a clue to a possible alternative. The sentencing judge, instead of ranging at large, with little guidance, over the wide space between the statutory minimum sentence for the defendant’s crime or crimes and the statutory maximum, might consider asking the Sentencing Commission to evaluate the appropriateness in particular cases of all the possible sentencing points in the statu tory sentencing range, including points that fall outside the guideline sentencing range. In a case like the present one the Sentencing Commission might advise the prosecutors, defense counsel, and the judge why it had fixed the guideline range where it did and how disapproving it would be of sentences below or above that range. The Commission might for example take a close look at the government’s suggested 216-month sentence in this case and the arguments the government gives for it, and conclude that maybe it’s a proper sentence given the particular facts of the case even though it lies outside the guideline range. The defense proposed a sentence of only 10 years, which would be about two and a half years below the sentencing guideline; and again, the Commission might agree in the special circumstances of this case that that was a plausible alternative to a sentence in the guideline range— or might explain why it was not. Judges wouldn’t have to ask the Commission for its input, or follow its recommendations, but they might find it a valuable resource.

The judgment of the district court is

AFFIRMED.

SYKES, Circuit Judge,

with whom KANNE, Circuit Judge, joins, concurring in the judgment.

The defendant’s only argument is that the district judge failed to adequately explain his reasons for imposing a prison term of 216 months. The record shows otherwise. The judge addressed the main arguments in mitigation and then focused on the defendant’s lengthy criminal record, which began as a juvenile, continued unabated into adulthood, and includes many violent crimes (including a shooting resulting in death). The judge emphasized the serious risk of recidivism, noting that all past efforts at deterrence had failed. That’s explanation enough for the 216-month sentence — 28 months above the top of the range recommended by the Sentencing Guidelines.

The defendant acknowledges the point but challenges the sequence of the judge’s remarks. He thinks a judge must announce the sentence first and then give his reasons for it. Or if the judge has already given his reasons earlier in the hearing, he must repeat them after pronouncing sentence. Only then, the argument goes, can the parties know the link between the' judge’s rationale and the sentence. There’s no support for this argument. Judges normally explain their reasoning before pronouncing sentence. The judge followed that norm here. No repetition was required.

KANNE, Circuit Judge,

concurring.

I join Judge Sykes in her concurrence. I write further to add that although Judge Posner has envisioned an interesting method to arrive at an appropriate sentence in individual cases, it is my view that such a unique system would be fundamentally unworkable in practice and contrary to the statutory provisions enacted by Congress and approved by the Supreme Court.

Judge Posner, of course, recognizes that in this case we cannot command the alternative approach to sentencing he suggests. Therefore, I join Judge Posner and Judge Sykes in affirming the sentence that the district court imposed.


author: ROVNER, Circuit Judge.

text:
    Diane PARKER, Plaintiff-Appellant, v. FOUR SEASONS HOTELS, LIMITED, Defendant-Appellee.
    No. 16-1244
    United States Court of Appeals, Seventh Circuit.
    Argued September 27, 2016
    Decided January 6, 2017

      Diane Parker, Venetia, PA, Pro Se.
    David A. Izzo, Attorney, David A. Izzo & Associates, Chicago, IL, for Defendant-Appellee.
    Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
   ROVNER, Circuit Judge.

Diane Parker was injured when a sliding glass door in the bathroom of her Four Seasons Hotel room shattered. The hotel admitted negligence and a jury awarded Parker $20,000 in compensatory damages, which was reduced to $12,000 after a motion for set-off was granted. The district court declined Parker’s request to put the question of punitive damages to the jury, finding her evidence insufficient as a matter of law. We reverse and remand for further proceedings on the question of punitive damages.

I.

Four Seasons asserts that the federal courts lack jurisdiction over this diversity suit because the amount in controversy does not exceed $75,000, citing the ultimate award of $12,000. But the requirements for diversity jurisdiction (including the amount in controversy) must be satisfied only at the time the suit is filed. Rosado v. Wyman, 397 U.S. 397, 405 n.6, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970) (noting the well-settled rule that a federal court does not lose jurisdiction over a diversity action which was well founded at the outset even though one of the parties may later change domicile or the amount recovered falls short of the statutory threshold); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (“Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction.”). Four Seasons does not deny that, when Parker filed her complaint, she brought claims in apparent good faith for compensatory and punitive damages exceeding $150,000. Dart Cherokee Basin Operating Co. v. Owens, — U.S. —, 135 S.Ct, 547, 553, 190 L.Ed.2d 495 (2014) (“When a plaintiff invokes federal-court jurisdiction, the plaintiffs amount-in-controversy allegation is accepted if made in good faith.”); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541 (7th Cir. 2006) (once the facts supporting the amount in controversy have been established, the proponent’s estimate of the claim’s value must be accepted unless there is legal certainty that the controversy’s value is below the threshold). Parker’s claimed damages are well in excess of the requisite amount, and federal jurisdiction is secure.

We turn to the facts, which we will simplify to focus on the issue at hand. Parker and her sister, Cindy Schiavon, checked into the Four Seasons on April 27, 2007, requesting adjoining rooms. After a short delay at the desk, Parker was assigned to room 3627 arid her sister was given the room next door. In Parker’s room, a sliding glass door separated the shower area from the vanity area. On the day after check-in, Parker took a shower and attempted to exit the shower area by opening the glass door. As she slid the door, it exploded suddenly, raining shards of glass onto her naked body and causing her injuries. Parker’s sister summoned help from the front desk. Shortly thereafter, Joseph Gartin, an engineer employed by the hotel, arrived to investigate the incident. According to Schiavon’s affidavit, Gartin:

immediately looked up at the overhead track and said: “Looks like the stopper moved again!” ... He explained that the hotel had recently undergone renovations, and that a “bunch” of the newly installed sliding glass doors had exploded because the overhead track stoppers were not working properly. That allowed the door-handles to crash into the walls and cause the glass doors to explode. This was one of the rooms on the “do not sell” list. You might want to check yours.

R. 101-7, at 2. Taking Gartin’s advice, Schiavon checked the sliding door in her bathroom in the adjoining room and determined that it suffered from the same defect.

Parker also uncovered evidence suggesting that the sliding door in her room had shattered before the incident that caused her injury, and that the door had been replaced. An October 2007 email between third party contractors working on door breakage issues revealed that several rooms configured in the same manner as Parker’s room had similar issues:

Bob-
Here is an update from Contract Mirror & Supply on the shower doors at the Four Seasons. CMS installed 150 tub doors, 136 shower doors, and 136 sliding barn doors during the renovation. We have had one shower door break (room 4401) and five sliding glass barn doors break (rooms 3427, 3527, 3627 twice, and 4419). The cause of the shower door breakage was identified and all of the shower doors were inspected to be sure that there were no additional problems. Since the X27 rooms represent 80% of the barn door failures these rooms were examined to identify what was different in these rooms that may have caused the problems. The thicker wall construction in this room leaves less clearance for the door (+/- ⅛ clearance versus +/- 1" in other rooms) and the tight tolerance may contribute to the breakage because the door may deflect up to ⅛ if someone pulls on the door while operating it which would allow the corner of the glass to hit the stone. CMS has been working with Jim DeFily to add corner protection to the glass to protect the corners in the event of impact and CMS is also researching a continuous bottom guide that was suggested by the hotel.

R. 101-2.

The hotel conceded negligence and so the only issue for trial was damages. But Four Seasons moved to block Parker from raising the issue of punitive damages before the jury, contending that her evidence was insufficient as a matter of law to present that claim to the jury. The district court agreed, and after trial, Parker recovered $20,000 in compensatory damages which was reduced to $12,000 after set-off. Parker appeals.

II.

Parker proceeded pro se through much of the litigation in the district court and also represented herself in this appeal. A trial court is obligated to liberally construe a pro se plaintiffs pleadings. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Kelley v. Zoeller, 800 F.3d 318, 325 (7th Cir. 2015); Nichols v. Michigan City Plant Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014). On appeal, we too construe pro se filings liberally, and will address any cogent arguments we are able to discern in a pro se appellate brief. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). The Honorable Harry Leinenweber oversaw the case from filing in April 2012 until July 2014, when it was transferred to the newly forming docket of the recently appointed Honorable Manish S. Shah. Shortly before his transfer off the case, Judge Leinenweber ruled on the Four Seasons’ motion for summary judgment. Faced with the plaintiffs rambling pro se complaint, a document that did not set forth any particular counts, Judge Leinenweber liberally construed the document and inferred six possible causes of action under Illinois law: premises liability, common law fraud, violation of the Illinois Safety Glazing Materials Act and the Chicago Municipal Code, negligence in the installation of the sliding glass doors, spoliation of the evidence, and intentional infliction of emotional distress. Judge Leinenweber granted summary judgment in favor of the defendants on all of these claims except premises liability.

Under Illinois law, property owners owe to their invitees a duty to maintain the premises in a reasonably safe condition. Ward v. K Mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 227 (1990). See also Marshall v. Burger King Corp., 222 Ill..2d 422, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1058 (2006). In a premises liability action, a plaintiff has the burden of proving: (1) the existence of a condition that presents an unreasonable risk of harm to persons on the premises; (2) that the defendants knew, or should have known, that the condition posed an unreasonable risk of harm; (3) that the defendants should have anticipated that individuals on the premises would fail to discover or recognize the danger or otherwise fail to protect themselves against it; (4) a negligent act or omission on the part of the defendant; (5) an injury suffered by the plaintiff; and (6) that the condition of the property was a proximate cause of the injury to the plaintiff. Jordan v. National Steel Corp., 183 Ill.2d 448, 233 Ill.Dec. 818, 701 N.E.2d 1092, 1094 (1998); Mueller v. Phar-Mor, Inc., 336 Ill.App.3d 659, 271 Ill.Dec. 8, 784 N.E.2d 226, 231 (2000). Judge Leinenwe-ber concluded that Schiavon’s affidavit and the contractor’s email provided sufficient evidence to preclude summary judgment on a premises liability claim. The court did not specifically address whether Parker’s premises liability claim was limited to compensatory damages for negligence or whether she could also seek punitive damages for wilful and wanton conduct.

After the case had been transferred to the docket of Judge Shah and shortly before trial, Four Seasons submitted a motion seeking to prohibit the plaintiff from presenting a claim for punitive damages to the jury. Although the hotel characterized its filing as a motion in limine, it was really a motion for partial summary judgment on the issue of punitive damages, and the district court appeared to treat it as such. Judge Shah considered whether Parker had presented sufficient evidence to meet the standard for punitive damages under Illinois law, specifically whether she had evidence of wilful and wanton conduct by the defendant. Judge Shah agreed with Judge Leinenweber that Parker had sufficient evidence to present to the jury a premises liability claim founded on negligence but concluded that the same evidence was insufficient as a matter of law to prove the wilful and wanton conduct that could justify punitive damages.

Parker’s primary claim on appeal is that the district court erred when it concluded that her claim for punitive damages failed as a matter of law. Four Seasons contends that we should review the district court’s decision for abuse of discretion because it involves the admission or exclusion of evidence, matters peculiarly within the competence of the district court. But the basis of the court’s decision was whether a particular claim could be sustained as a matter of law, not whether evidence should be admitted or excluded. We therefore review the district court’s grant of partial summary judgment de novo, examining the record in the light most favorable to Parker and construing all reasonable inferences from the evidence in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Yahnke v. Kane County, III., 823 F.3d 1066, 1070 (7th Cir. 2016). Summary judgment is appropriate when there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477 U.S. at 255,106 S.Ct. 2505; Yahnke, 823 F.3d at 1070. The preliminary question of whether the facts of a particular case justify the imposition of punitive damages is properly one of law. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 359 (1978).

Under Illinois law, “punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.” Kelsay, 23 Ill.Dec. 559, 384 N.E.2d at 359. See also Stojkovich v. Monadnock Bldg., 281 Ill.App.3d 733, 217 Ill.Dec. 35, 666 N.E.2d 704, 712 (1996) (same). Although Parker contends that the hotel committed fraud when it failed to warn her at check-in time that her room contained a hazardous condition, like the district court we conclude that Parker has presented no evidence of fraud or intent to deliberately harm her. Instead, the question is whether the hotel’s conduct was so grossly negligent “as to indicate a wanton disregard of the rights of others.” Kelsay, 23 Ill.Dec. 559, 384 N.E.2d at 359. Punitive damages serve to punish the offender and to deter that party and others from engaging in similar acts of wrongdoing in the future. Loitz v. Remington Arms Co., 138 Ill.2d 404, 150 Ill.Dec. 510, 563 N.E.2d 397, 401 (Ill. 1990). “Because of their penal nature, punitive damages are not favored in the law.” Loitz, 150 Ill.Dec. 510, 563 N.E.2d at 401.

Illinois courts distinguish negligence from wilful and wanton conduct. Stojkovich, 217 Ill.Dec. 35, 666 N.E.2d at 712; Loitz, 150 Ill.Dec. 510, 563 N.E.2d at 402. One court described wilful and wanton conduct as “a hybrid between acts considered to be negligent and intentional acts.” Stojkovich, 217 Ill.Dec. 35, 666 N.E.2d at 712. Negligence that does not justify punitive damages includes “mere inadvertence, mistake, errors of judgment and the like.” Stojkovich, 217 Ill.Dec. 35, 666 N.E.2d at 712; Loitz, 150 Ill.Dec. 510, 563 N.E.2d at 402. But punitive damages may be awarded in cases involving “reckless indifference to the rights of others,” or conduct that approaches the degree of moral blame attached to intentional harm, where a defendant inflicts a highly unreasonable risk of harm on another in conscious disregard of that risk. Loitz, 150 Ill.Dec. 510, 563 N.E.2d at 402. In the context of premises liability, wilful and wanton conduct includes an act committed with reckless disregard for the safety of others, “such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” Salazar v. Crown Enterprises, Inc., 328 Ill.App.3d 735, 262 Ill.Dec. 906, 767 N.E.2d 366, 371 (2002) (citing American Nat. Bank & Trust Co. v. City of Chicago, 192 Ill.2d 274, 248 Ill.Dec. 900, 735 N.E.2d 551, 557 (2000)).

The district court focused on Sto-jkovich, Loitz and Salazar in finding that Parker did not meet the Illinois standard for punitive damages. In Loitz, the plaintiff was injured when the barrel of his Remington shotgun exploded, injuring his hand. Remington had received reports of ninety-four shotgun barrel explosions resulting in injury for this particular model. But the company had investigated every reported incident and determined the cause in each instance to be shells that had been reused and overloaded by the user of the gun. The court concluded that Remington’s conduct was not wilful and wanton in part because guns are inherently dangerous instrumentalities and so the mere occurrence of an explosion without more does not establish a level of misconduct sufficient to justify punitive damages. Loitz, 150 Ill.Dec. 510, 563 N.E.2d at 404. The court further found that punitive damages were not warranted because the plaintiff had cast no doubt on Remington’s good faith in investigating prior explosions. Loitz, 150 Ill.Dec. 510, 563 N.E.2d at 407.

In Stojkovich, the plaintiff was injured while attempting to escape from an elevator that had stalled between the second and third floors of the historic Chicago building. The elevator had stalled on seventeen prior occasions and five of the stoppages had resulted in passengers being trapped. In each prior instance, the elevator was serviced and became operable again. The elevator was never taken out of service and the true problem was not diagnosed until after the plaintiff fell down the shaft while trying to leave the stalled elevator. There was no evidence that the company responsible for maintaining the elevator had ever failed to respond to service calls, failed to attempt to repair the problematic elevator when called upon to do so, or placed the elevator back in service knowing that it was defective and remained unrepaired. 217 Ill.Dec. 35, 666 N.E.2d at 712-13. Absent evidence that the company deliberately refused to attempt repairs, or placed it back in service knowing both the cause of the stoppages and that the cause had not been remedied, the court declined to find that the company’s conduct approached the degree of moral blame necessary to justify punitive damages. 217 Ill.Dec. 35, 666 N.E.2d at 713.

Salazar addressed the duty of a landowner to a trespasser on the land. The trespasser, a homeless person, was beaten to death on the defendant’s unsecured property. His survivors alleged that the property was in such a state of disrepair and abandonment that it posed structural, sanitary and social hazards that rendered it unreasonably dangerous even to trespassers. In Illinois, landowners owe trespassers a duty only to refrain from wilful and wanton conduct. The court declined to find that the landowner could be held responsible for the criminal acts of a third party against a trespasser where the plaintiff lacked evidence that the landowner engaged in any intentional act or knew of other injuries or accidents caused by the allegedly dangerous condition. Without that knowledge, the court concluded that allowing the property to fall into disrepair did not rise to the level of wilful and wanton conduct. 262 Ill.Dec. 906, 767 N.E.2d at 371.

With those standards in mind, we turn to Parker’s evidence of wilful and wanton conduct here. The affidavit from Schiavon and the email from the contractor working on the door issues were Parker’s best evidence that the hotel knew there was a serious problem with the sliding doors at the time the room was rented to Parker. Parker had the admission of the hotel’s engineer that the stopper had moved “again,” that a “bunch” of the newly installed sliding glass doors had exploded because the overhead track stoppers were not working properly, that the doors were crashing into the walls and exploding, and that rooms affected by the problem had been placed on a “do not sell” list. See Barton v. Chicago & N.W. Transp. Co., 325 Ill.App.3d 1005, 258 Ill.Dec. 844, 757 N.E.2d 533, 555 (2001) (evidence of substantially similar occurrences is admissible to show a conscious disregard for the safety of others). She also had the email suggesting that several doors had broken in a similar manner and that the glass door in her very room had previously exploded and been replaced.

Although competing inferences could be drawn from this evidence, on summary judgment we draw all reasonable inferences in favor of the party opposing judgment, in this instance, Parker. Construing this evidence in Parker’s favor, it would be fair to infer that the Four Seasons knew that there was a problem with the glass doors generally, that the door in Parker’s room had previously shattered, and that there was a problem with the stopper that allowed the door handle to come into contact with the wall, resulting in the shattering of the glass door. It would also be fair to infer that the hotel knew that the problem had not been fixed as of the time that Parker checked into the room, and that the room had been taken out of service for that very reason, and placed on a “do not sell” list. Yet the hotel rented the room to Parker anyway. Although Parker may not have presented evidence that the glass door explosions had previously resulted in injury, at this stage she need only show that injury was reasonably foreseeable. See Barton, 258 Ill.Dec. 844, 757 N.E.2d at 556-57 (noting that in assessing substantially similar occurrences, the relevant test is not injuries actually suffered but injuries reasonably foreseeable from such incidents). Injury is more than reasonably foreseeable when a hotel installs in a shower area a glass door that is prone to exploding in regular use.

Parker asserts that her case is more like Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003), than it is like Stojkovich, Salazar or Loitz. In Mathias, a motel knowingly and repeatedly rented out hotel rooms that it knew were infested with bedbugs. Although the defendant claimed that it was guilty of nothing more than simple negligence, we explained that the hotel’s conduct easily fit the definition of gross negligence and even recklessness because of the unjustifiable failure to avoid a known risk. As we noted, rooms “that the motel had placed on ‘Do not rent, bugs in room’ status nevertheless were rented.” 347 F.3d at 675. The plaintiffs received a room the motel had classified as “DO NOT RENT UNTIL TREATED,” even though the room had not been treated. Because the motel likely could not have rented any rooms at the prices charged if the guests had been informed that the risk of being bitten by bedbugs was appreciable, we concluded that the failure to either warn the guests or to take effective measures to control the bedbugs amounted to fraud and probably battery as well. 347 F.3d at 675. The conduct therefore met the standard for wilful and wanton conduct under Illinois law, allowing a claim for punitive damages to proceed.

Parker’s case falls somewhere between Mathias on the one hand and Stojkovich, Salazar or Loitz on the other. In both Stojkovich and Loitz, the defendants investigated the problem and believed they had addressed any danger. In Loitz, a case involving a product the court characterized as inherently dangerous, Remington could not control user errors in overloading shells and the company had investigated the problem in good faith, finding no flaws in the construction of the shotgun. See also Barton, 258 Ill.Dec. 844, 757 N.E.2d at 555-56 (distinguishing Loitz from a case involving a passenger injured when de-boarding a commuter train because Loitz involved an inherently dangerous product or situation and deboarding a train stopped at a station is not inherently dangerous). In Stojkovich, the elevator repair company thought that it had fixed the problem each time the elevator had stalled, and no one placed the elevator back in service knowing or even suspecting that the true problem had not been fixed. In Salazar, the property owner could not foresee the criminal acts of a third party when such an act had never occurred on the property. But in Parker’s case, a fact-finder could infer that the hotel, like the motel in Mathias, was aware that there was a problem that could cause injuries, that the problem had not yet been fixed, and that the room had been removed from service because of the problem. And yet, as previously noted, the hotel rented the room to Parker. A fact-finder could conclude that this was a “failure, after knowledge of impending danger, to exercise ordinary care to prevent it.” Salazar, 262 Ill.Dec. 906, 767 N.E.2d at 371.

Four Seasons vigorously disagrees with Parker’s characterization of the facts. The hotel has evidence that, if credited by the fact-finder, counters those inferences. Four Seasons may have thought it repaired the problem. Parker’s room could have been pulled from service for some other reason, and Parker’s sister may not be a credible witness when weighed against the building engineer, Gartin, who may have a different recollection. These are issues for a fact-finder to decide. Barton, 258 Ill.Dec. 844, 757 N.E.2d at 555 (whether punitive damages can be awarded for a particular cause of action is a matter of law, but the question of whether a defendant’s conduct was sufficiently wilful and wanton to justify imposing punitive damages is generally for the jury to decide). On summary judgment, we conclude that Parker has the right to present her punitive damages claim to the jury. We therefore remand the case for further proceedings on the question of punitive damages.

We must briefly address a few other issues. Parker contends that the district court abused its discretion when it allowed her attorney to withdraw prior to trial. We review for abuse of discretion a district court’s decision to grant a motion to withdraw in a civil case. Stafford v. Mesnik, 63 F.3d 1445,1448 (7th Cir. 1995). “The attorney seeking to withdraw must establish that his client consents or that a valid and compelling reason exists for the court to grant the motion over an objection.” Stafford, 63 F.3d at 1448 (citing Woodall v. Drake Hotel, Inc., 913 F.2d 447, 449 (7th Cir. 1990)). The court was well within its discretion to allow the attorney to withdraw where he had reached an impasse with Parker in how to proceed with the case. Washington v. Sherwin Real Estate, Inc,, 694 F.2d 1081, 1087-88 (7th Cir. 1982) (finding no abuse of discretion in allowing attorney to withdraw in civil matter where client refused to accept attorney’s advice and attorney no longer felt able to adequately represent client’s interests). Moreover, Parker suffered no prejudice from her attorney’s withdrawal. After the court allowed Parker’s lawyer to withdraw, more than eleven months passed before the trial began, allowing Parker ample time to either prepare for trial herself or to replace her lawyer. And as the trial and the appeal have demonstrated, Parker proved to be a very capable advocate.

That said, Parker, having raised one meritorious issue on appeal, also makes a number of poorly founded arguments in her brief. To the extent that we do not address a particular issue raised in the briefs, it is because we have concluded that the issue does not merit discussion.

REVERSED AND REMANDED.

      . This door is referred to in the record as a "barn door.” Apparently, it is separate from or in addition to a shower door.

      . Judge Leinenweber found this email admissible under the residual exception to the hearsay rule. Parker v. Four Seasons Hotels, Ltd., 2014 WL 1292858, *3 (N.D. Ill. March 31, 2014). Although Four Seasons argues in its response brief that the email is inadmissible, the hotel fails to acknowledge that the district court rejected this argument, and fails to make any argument that the district court abused its discretion in deeming the email admissible. United States v. Ferrell, 816 F.3d 433, 438 (7th Cir. 2015) (we review a district court’s decision on the admissibility of hearsay statements for abuse of discretion, reversing if the decision strikes us as fundamentally wrong). By failing to argue that the district court abused its discretion, Four Seasons has waived any claim regarding the admissibility of this evidence.

      . In deciding the legal issue under review here, the district court also determined the admissibility of certain evidence, namely, the email regarding door problems. Admissibility is a threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). As we noted above, Four Seasons made no argument that the district court abused its discretion in finding the email admissible and thus only the summary judgment decision is at issue at this stage.


text:
    Rodney CLEMONS, Petitioner-Appellant, v. Randy PFISTER, Warden, Respondent-Appellee.
    No. 14-3797
    United States Court of Appeals, Seventh Circuit.
    Argued January 11, 2016
    Decided January 9, 2017

      Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Petitioner-Appellant.
    Matthew P. Becker, Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Ap-pellee.
    Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

In 2005 an Illinois jury convicted Rodney Clemons of murdering Doris Smith, his former girlfriend and mother of his infant son. After an unsuccessful appeal and postconviction proceedings in state court, Clemons sought federal habeas review under 28 U.S.C. § 2254. He raised several claims, but only one is relevant here. Clemons argues that his trial attorney was constitutionally ineffective in violation of the rule of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to call an alibi witness. The Illinois Appellate Court declined to consider this claim because Clemons raised it only in a pro se reply brief, which the court refused to accept because he was represented by counsel. The district judge concluded that the claim was procedurally defaulted. But she also addressed the merits of the Strickland, claim and denied it.

We affirm on the first ground. Procedural default precludes federal merits review of Clemons’s Strickland claim.

I. Background

Doris Smith was shot and killed near her Chicago home in the early morning hours of August 26, 2011. Her attacker chased her down an alley and onto the street, firing shots as she fled begging for her life and screaming for help. Two shots hit their mark. Smith died of gunshot wounds to the hip and upper back.

Rodney Clemons was Smith’s on-again/ off-again boyfriend and the father of her infant son. Several eyewitnesses identified him as the shooter, and Chicago police arrested him later that day. After lineups and some additional investigation, Cook County prosecutors charged Clemons with Smith’s murder and a related count of using a firearm to commit that crime. A jury convicted him as charged, and the trial judge sentenced him to 45 years in prison.

After an unsuccessful direct appeal, Clemons filed a pro se postconviction petition in the trial court. He raised several claims, including an argument that his trial counsel was constitutionally ineffective in violation of Strickland for failing to call Andre Smith as an alibi witness. Clemons submitted an affidavit from Smith, his friend and would-be alibi witness, together with his postconviction petition. But the affidavit was difficult to read and ended abruptly in the middle of the page as if a piece of paper covered the bottom half of the page while it was being photocopied.

The trial judge rejected Clemons’s various claims for relief. Regarding the Strickland claim about the omitted alibi witness, the judge held that Clemons had failed to make the required factual showing because he did not submit appropriate affidavits from potential witnesses and “failed to explain the significance of their testimony.”

Clemons moved for reconsideration, reiterating his claim about the overlooked alibi witness. This time he attached a clearly legible version of Smith’s affidavit. The judge construed this filing as an improper successive petition for postconviction relief and denied it. An exception exists under Illinois law if the prisoner can demonstrate cause for his failure to bring the claim in his first petition and resulting prejudice. Clemons demonstrated neither, so the exception did not apply.

Clemons was represented by counsel on his appeal from the denial of his postcon-viction petition. His attorney briefed a single claim regarding an evidentiary error. Clemons filed a pro se motion to supplement his counsel’s brief; the motion sought to add, among other things, the Strickland claim regarding trial counsel’s failure to call Smith as an alibi witness. Clemons also moved for leave to file a pro se l'eply brief raising that claim, tendering a proposed pro se brief with the motion. The court issued an order saying it would take the pro se motions with the merits of the appeal.

In due course the court issued a reasoned merits order addressing only the arguments raised in Clemons’s counseled briefs and affirming the denial of postcon-viction relief. No mention was made of Clemons’s motions. Before the final mandate issued, the court issued a confusing order saying that Clemons’s motion to file a pro se supplemental brief was denied but his motion for leave to file a pro se reply-brief “is allowed.” The court later issued a clarifying order explaining that the motion to file a pro se reply brief was denied, not “allowed” as the earlier order had stated. This order clearly explained that the court had considered only Clemons’s counseled briefs in rendering its opinion. The Illinois Supreme Court denied leave to appeal.

The case then moved to federal court. Clemons’s petition for habeas review under § 2254 raised several issues, including the Strickland claim regarding his trial counsel’s failure to call Smith, the alibi witness. The district judge held that Clemons had procedurally defaulted this claim by failing to submit appropriate affidavits in support of it with his state postconviction petition. The judge also held, however, that the claim “would ... fail on the merits because Clemons cannot meet either of the Strickland requirements.” The judge rejected all other grounds for relief and denied the petition in its entirety.

We granted a certificate of appealability limited to the Strickland claim regarding the omitted alibi witness.

II. Discussion

We review a ruling on procedural default de novo. Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016). Procedural default can occur in several ways, “but two are paradigmatic.” Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014). A state prisoner can procedurally default a federal claim if he fails to “fairly present” it “throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in post-conviction proceedings.” Id. Procedural default can also occur if the state court rejects a federal claim based on a state procedural rule “that is both independent of the federal question and adequate to support the judgment.” Id. (quotation marks omitted); see also Thomas, 822 F.3d at 384.

This ease involves the second form of procedural default. The state trial and appellate courts relied on two distinct and different procedural grounds in declining to reach the merits of Clemons’s alibi-witness claim. The trial judge said that Clemons had failed to comply with the procedural rule requiring the submission of supporting affidavits with his petition for postconviction relief. The appellate court, on the other hand, refused to address the claim because it was raised only in Clemons’s pro se reply brief, which the court declined to accept because he was represented by counsel.

The district judge held that the trial court’s reliance on the Illinois affidavit rule was an independent and adequate state ground sufficient to support a finding of procedural default. The record is hazy on this point. Clemons in fact did submit an affidavit from Smith with his postconviction petition. True, it was difficult to read and incomplete (apparently owing to a photocopying error), but Clemons cured that defect by submitting a complete and legible copy of the affidavit with his motion for reconsideration.

We don’t need to sort this out here. Illinois, doesn’t rely on the trial judge’s application of the affidavit rule. Instead, it focuses exclusively on the state appellate court’s enforcement of its rule against hybrid representation. In other words, Illinois locates the procedural default in the appellate court’s discretionary refusal to consider the alibi-witness claim because it was mentioned only in Clemons’s pro se reply brief, which the court declined to accept because he was represented by counsel.

The Supreme Court has explained that a state substantive or procedural rule — including a discretionary procedural rule like this one — “can serve as an adequate ground to bar federal habeas review.” Walker v. Martin, 562 U.S. 307, 316, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60, 130 S.Ct. 612,175 L.Ed.2d 417 (2009)). For a state-law ground to be “adequate,” it must be “firmly established and regularly followed.” Id. at 316, 131 S.Ct. 1120 (quoting Kindler, 558 U.S. at 60, 130 S.Ct. 612). And it must not have been applied in a manner that “impose[s] novel and unforeseeable requirements without fair or substantial support in prior state law” or “discriminate[s] against claims of federal rights.” Id. at 320-21, 131 S.Ct. 1120 (quotation marks omitted).

Clemons argues that the Illinois rule disfavoring hybrid representation discriminates against claims of federal rights. He doesn’t suggest that the rule itself is discriminatory; rather, he simply notes that the application of the rule in his case made it more difficult for him to present his federal claims to the state court for adjudication. But that happens any time a state court relies on a procedural rule to reject a federal claim. A state procedural rule discriminates against federal rights— and is thus “inadequate” — only if the prisoner can show a “purpose or pattern to evade constitutional guarantees.” Kindler, 558 U.S. at 65, 130 S.Ct. 612 (Kennedy, J., concurring), quoted approvingly in Walker, 562 U.S. at 321, 131 S.Ct. 1120. Clemons has not made this showing here.

Clemons also argues that the state appellate court applied the rule against hybrid representation in a novel and unforeseeable way that was sufficiently “freakish” to render it inadequate to justify a finding of procedural default. Walker, 562 U.S. at 320, 131 S.Ct. 1120 (quoting Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990)). This argument centers on the appellate court’s decision to take the pro se motions with the merits of the appeal. Clemons had a difficult choice: He could stick with his counseled briefs, which didn’t mention the alibi-witness claim, or fire his attorney and submit his pro se brief, which raised the alibi-witness claim. The choice was made all the more difficult, Clemons says, because the court deferred ruling on his pro se motions and instead took them with the merits of the case. By the time the court ruled, it was too late to fire his counsel and represent himself.

But it’s not at all uncommon for an appellate court to fold a motion into the final merits disposition. In Illinois, as elsewhere, appellate courts regularly take motions with the merits. See, e.g., People v. Guest, 115 Ill.2d 72, 104 Ill.Dec. 698, 503 N.E.2d 255, 274 (Ill. 1986) (taking a motion to supplement the record under advisement); People v. Pierce, 26 Ill.App.3d 550, 325 N.E.2d 758, 766 n.2 (1975) (taking a motion to strike a portion of the reply brief under advisement). Clemons was surely aware of the dilemma he faced: He could dispense with his counseled briefs and represent himself to ensure that his preferred arguments were raised, or he could roll the dice and hope that the court would make an exception to the rule against hybrid representation and accept his pro se supplemental brief. There was nothing unusual or unfair about putting him to this choice.

In the end, the state appellate court applied its general rule that hybrid representation is disfavored and declined to accept Clemons’s pro se brief because he was represented by counsel. That was an independent and adequate state ground of decision and precludes federal habeas review of Clemons’s Strickland claim.

Affirmed.

      . Andre Smith is apparently unrelated to Doris Smith. In his affidavit he stated that he was with Clemons during the time period of the murder, though he acknowledged that Clemons left his company for “a few minutes” in this period.


text:
    Tracy L. WINK, Plaintiff-Appellee/Cross-Appellant, v. MILLER COMPRESSING COMPANY, Defendant-Appellant/Cross-Appellee.
    Nos. 16-2336, 16-2339
    United States Court of Appeals, Seventh Circuit.
    Argued December 1, 2016
    Decided January 9, 2017

      Alan C. Olson, Attorney, Olson & Associates, New Berlin, WI, for Plaintiff-Appellant.
    Susan Lorenc, Ryan John Gehbauer, Attorneys, Thompson Coburn LLP, Chicago, IL, for Defendant-Appellee.
    Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
   POSNER, Circuit Judge.

In this suit by the plaintiff, Wink, against her former employer, Miller Compressing Company, a three-day jury trial ended with a verdict in favor of Wink on three of her claims: retaliation in violation of the Family and Medical Leave Act (FMLA), violation of Wis. Stat. § 109.03 (a wages statute), and breach of contract. But the jury returned a verdict for Miller on Wink’s fourth claim, which was that Miller had interfered with her rights under the FMLA. Miller moved for judgment as a matter of law on the ground that no reasonable jury could have found enough evidence to justify its verdict. The district judge denied the motion, precipitating this appeal by Miller. Wink has cross-appealed, seeking a higher award of attorneys’ fees for her successful suit.

Wink had been employed in Miller’s order-processing department since 1999 (order processing includes paperwork, which was what Wink did, and other procedures involved in the distribution of products, such as recycled scrap metal, which Miller sells), and Miller had granted Wink’s request in July 2011 for intermittent FMLA leave through July 2012 to take her autistic two-year-old son to medical appointments and therapy. FMLA entitles eligible employees to take up to 12 workweeks of leave during any 12-month period for qualifying reasons, one of which is to care for a child who has a serious health condition. 29 U.S.C. §§ 2612(a)(1), (a)(1)(C).

In February 2012, Wink’s son was expelled from day care, which he had been attending for two days a week, because of his aggressive behavior, a product of his autism. Wink asked her employer’s human resources department to grant her FMLA leave to enable her to work from home two days a week, which would give her enough free time to take care of the child. (Wink’s mother was able to watch the toddler the remaining three workdays.) FMLA does not cover working at home, Taylor-Novotny v. Health Alliance Medical Plans, Inc., 772 F.3d 478, 498 (7th Cir. 2014), but working at home would enable Wink to spend several hours a day caring for her son — indeed she might have been entitled to two full days of FMLA leave per week to care for him at home.

Human resources agreed to a hybrid arrangement that would require Wink to inform the company of the number of hours she worked each day at home, a computation that would be made by subtracting from the normal eight-hour workday the hours in which she was taking care of her son — hours of FMLA leave time for which the company would not be required to compensate her.

Although Wink was an experienced and highly valued employee, in the summer of 2012 the Miller company, experiencing serious financial problems, decided that none of its employees would be allowed to work at home during the week; all of them would be required to work a full 5-day 40-hour week on the company’s premises. On a Friday in July the company gave Wink an ultimatum: she had to show up on the coming Monday and work eight hours a day (8 a.m. to 4 p.m.) five days that week, as well as in all subsequent weeks, in the office. When told this, she started to cry and said she “knew that it was going to be nearly impossible for [her] to find day care over the weekend by Monday.” The jury was entitled to believe both that she had said that and that it was true, and that the reason she needed day care — her son’s autism — was also true, but that if she couldn’t find a day-care service willing to take him (because he’s such a difficult child) at a price she could afford, she’d have to provide the care, or at least some of it (maybe she could obtain and afford very limited day care, or get help from family), herself, when the child was awake and hyperactive.

But the human resources officer to whom she explained all this told her falsely that the FMLA covers leave from work only for doctors’ appointments and therapy. That was on Friday; Wink returned to the office on Monday morning and explained that she’d been unable to find day care for her son over the weekend. The human resources officer told her that the first day she didn’t work in the office, full time, she’d be considered a “voluntary quit.” Because Wink had to return home to take care of her child, not having been able to obtain day care for him over the weekend, she left the office, never to return to work for Miller. For that same Monday, shortly after she’d gone home to take care of her autistic child, the human resources officer ordered Wink’s termination processed “today” (i.e., Monday) and that it reflect that her last day of work had been the previous Friday.

The Family and Medical Leave Act entitled Wink to take leave necessary to take care of a very difficult (at times violent) sick child. 29 U.S.C. § 2612(a)(1), (a)(1)(C); 29 C.F.R. § 825.124. Wink proved, and the jury determined, that the company had retaliated against her for asserting her FMLA right to take leave necessary to enable her to take care of her sick child for several hours two days a week. As she was a valued and experienced employee who had worked for the company at home two days a week since February without the company’s complaining, the company had no compelling reason to fire her. Maybe, because of its financial troubles, it would have had to lower her wage, on the plausible supposition that an employee is likely to do less work for her employer at home than in the office — in Wink’s case if only because her child might take more than the allotted time (two hours a day) to be cared for by her. But that is not argued.

The best inference, or at least an inference that a reasonable jury could draw, was that Wink’s superiors were angry with her for requesting to be allowed to stay home (albeit working part of the day) two days a week, though she’d been doing that since February to the satisfaction of the employer. Hence the phony line that FMLA can’t be used to authorize leave to take care of a very sick child even when obtaining day care for the child is difficult or even impossible because of the child’s particular ailment — autism that in this case manifested itself at times in violent behavior. The FMLA is explicit that an eligible employee (which Wink is conceded to have been) is entitled to take up to 12 workweeks of unpaid leave per year in order to care for a family member with a serious health condition, including a child with such a condition. 29 U.S.C. §§ 2611(11), 2612(a)(1)(C).

In addition to actual damages based on the employee’s loss of wages, the violation of this right entitles the employee to “liquidated damages equal to the sum of the amount” of the loss plus interest, unless the employer can show that it acted in good faith. 29 U.S.C. § 2617(a)(l)(A)(iii). Because the liquidated damages are thus equal to the amount of damages actually sustained, the employee can receive twice his or her actual damages. See, e.g., Shea v. Galaxie Dumber & Construction Company, Ltd., 152 F.3d 729, 733 (7th Cir. 1998); Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1223 (7th Cir. 1995). Miller argues that it acted in good faith, and therefore shouldn’t have to pay double damages, but the district court correctly rejected that argument. Human resources’ reaction to Wink’s plight could reasonably be found to be retaliation against her for asking for FMLA leave for anything other than a doctor’s appointment or therapy (it’s not clear what exactly human resources meant by “therapy,” but presumably it meant professional therapy rather than a mother’s care). Wink’s employment contract with Miller provided that a termination of it “without a reason arising from Employee’s own action or inaction” was a termination without cause that obligated Miller either to give her three weeks’ advance notice of termination or continue paying her wages for the three weeks. The jury was within its rights in finding that Miller had fired Wink without cause, or advance notice, and therefore had broken its contract with her and violated the Wisconsin wage statute, Wis. Stat. § 109.03, by not paying her three weeks of wages. That action by Miller gave Wink a further right to damages beyond that created by the FMLA.

One issue remains to be considered. The FMLA entitles a winning plaintiff to an award of attorneys’ fees. 29 U.S.C. § 2617(a)(3). A presumptive award is calculated by multiplying the hourly fees charged by the plaintiffs’ attorneys by the number of hours they had worked on the case. But adjustments are common, and in this case the district judge decided to reduce the award of attorneys’ fees to Wink by 20 percent because she had failed to persuade the jury to find that the defendant had interfered with her FMLA rights, which as mentioned earlier is a separate violation from retaliation. Wink’s cross-appeal challenges the district judge’s ruling persuasively. It’s not as if her lawyers had dropped the ball in arguing that Miller had not only retaliated against her for claiming her FMLA rights but had also interfered with her efforts to assert them. The two FMLA breaches are very similar, so it was prudent for the lawyers to press both in order to reduce the likelihood of a total defeat. And because the claims were so similar and based largely on the same facts, the marginal cost of presenting the interference claim to the jury was slight.

We conclude that the judgment of the district court must be affirmed except for the judge’s 20 percent reduction in the attorneys’ fees awarded the plaintiff; we remand that ruling with directions to rescind it and award the plaintiff her full attorneys’ fees.