                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



               United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                             Submitted February 24, 2020*
                              Decided February 26, 2020

                                        Before

                        DIANE P. WOOD, Chief Judge

                        WILLIAM J. BAUER, Circuit Judge

                        MICHAEL B. BRENNAN, Circuit Judge


No. 19‐2255

DEMETRIUS BLANKENSHIP,                         Appeal from the United States District
    Plaintiff‐Appellant,                       Court for the Western District of Wisconsin.

      v.                                       No. 17‐cv‐847‐jdp

AMERICAN PHOENIX, INC.                         James D. Peterson,
    Defendant‐Appellee.                        Chief Judge.

                                      ORDER

       Demetrius Blankenship, an African American man, sued his former employer for
race discrimination and retaliation under Title VII of the Civil Rights Act of 1964.
During discovery, the district court denied his motion to compel discovery and, a few
months later, entered summary judgment for the employer, concluding that
Blankenship had not introduced enough evidence to support his allegations. It then
denied Blankenship’s post‐judgment motions to vacate the decision and compel


      *  We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19‐2255                                                                      Page 2

discovery. Blankenship appeals the entry of summary judgment and the denial of his
motions to compel. We agree with the district court’s reasoning and affirm.

       About a year after Blankenship began working for American Phoenix, a rubber
manufacturer, he reported to human resources that a coworker had said “hey n****r”
and “hey black boy” when Blankenship passed him in the hall. The human resources
department obtained statements from Blankenship, the coworker, and two others who
were present (a peer and a supervisor). All agreed that the coworker used the n‐word
but disagreed about whether he directed it toward Blankenship (though Blankenship
was the only African American in the vicinity). Regardless, the company issued a
warning to the coworker who used the derogatory language, made the warning part of
his personnel file, and admonished him that any future incident may subject him to
further discipline, including suspension or discharge. The coworker had no more
complaints filed against him after the warning.

       Four months later, Blankenship’s department implemented a change in its
punctuality standards. Blankenship attended a training session about the company’s
employee handbook and the new policy, which would no longer allow workers a
“grace period” for tardiness (clocking in even one minute late would count as tardy).
Under the company’s attendance policy, an employee receives a half‐point for
unexcused tardiness and one point for an unexcused absence or for leaving work early
without permission. The company issues written warnings when an employee has
accrued four, five, and six points. At seven points, it imposes a one‐day, unpaid
suspension. At eight, the employee is fired. Each attendance point expires after
12 months.

       More than a year after the company tightened its punctuality standards, in
August 2016, Blankenship received his eighth attendance point in a single 12‐month
period. Among other violations, on ten occasions during that year he had incurred a
half‐point for being less than five minutes late. American Phoenix issued written
warnings to Blankenship when he received his fourth, fifth, and sixth attendance points.
The company advised Blankenship that additional warnings would subject him to
further disciplinary action including suspension and discharge. When Blankenship
received his seventh attendance point, the company suspended him for a day without
pay. Three days later, he received his eighth point, and after conducting a termination
hearing, American Phoenix fired Blankenship. Among others, the director of human
resources (who had received Blankenship’s complaint about the racial slur) and the
supervisor of Blankenship’s department (who had overheard and submitted a report
No. 19‐2255                                                                           Page 3

about the racial slur) were present at the hearing. Blankenship did not contest the
accuracy of his total points at any time.

       Blankenship sued American Phoenix for race discrimination and retaliation
under Title VII, 42 U.S.C. §§ 2000e‐2, 2000e‐3. As relevant to this appeal, he alleged that
the company fired him because he is African American and because he complained
about race discrimination. After screening the complaint, the district court provided a
scheduling order which included information about how to make discovery requests
and file a motion to compel discovery. At one point, Blankenship moved to compel
discovery responses, FED. R. CIV. P. 37(a), and American Phoenix answered the
outstanding requests three days later. Blankenship argued in a reply brief that the
responses were “irrelevant, non‐responsive, and totally opposite to the documentation
requested.” When the court denied the motion to compel, it explained to Blankenship
that he could not raise a “vague objection” to the discovery responses in his reply brief
and clarified how he could support another motion to compel discovery. Blankenship
did not move to compel again or move for sanctions.

        Eventually, American Phoenix filed a motion for summary judgment, which the
district court granted, concluding that Blankenship offered no evidence that the
company’s stated reason for firing him—his attendance—was not genuine. Within
28 days, Blankenship filed a “motion to vacate,” and another motion to compel
discovery. He insisted that he could not offer evidence only because American Phoenix
withheld information and the court had wrongly denied his original motion to compel.
The court denied both motions, and Blankenship appeals both the entry of summary
judgment and the denial of his motions to compel.

       To avoid summary judgment on his discrimination claim, Blankenship needed to
submit evidence from which a reasonable juror could conclude that American Phoenix
fired him because of his race. Ortiz v. Werner Enter. Inc., 834 F.3d 760, 764 (7th Cir. 2016).
With respect to retaliation, Blankenship required evidence that his complaints of racial
discrimination were the but‐for cause of his firing. Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 362 (2013); see Abrego v. Wilkie, 907 F.3d 1004, 1014 (7th Cir. 2018). We
review de novo. Abrego, 907 F.3d at 1011.

        Blankenship argues first that the court improperly construed facts in the
defendant’s favor when it stated that the coworker who used a racial epithet did not
direct it at Blankenship. He maintains that the slur was directed at him and that the
company’s response to it reveals its tolerance for racist behaviors and its general
No. 19‐2255                                                                         Page 4

discriminatory intent. But this question is not material to whether American Phoenix
had a discriminatory motive for terminating Blankenship more than a year after the
comment. A stray comment might be material in determining unlawful animus,
depending on the timing and context of the remark and the identity of the speaker.
See Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 885 (7th Cir. 2016). Here,
the reprehensible slur was used by a coworker, not anyone who had a role in firing
Blankenship. Id. Moreover, American Phoenix furnished evidence that, when
Blankenship complained, it promptly investigated and then issued a formal disciplinary
warning to the coworker, condemning the use of the slur and admonishing that future
incidents could result in termination. Therefore, even if we assume that the coworker
had directed the slur at Blankenship, the remark does not create a genuine issue of
material fact about whether Blankenship was fired because of his race. To the extent
that Blankenship implies that the racial slur shows that American Phoenix fostered a
hostile work environment, we will not consider arguments not raised before the district
court. Grant v. Trs. of Ind. Univ., 870 F.3d 562, 569 (7th Cir. 2017).

       Blankenship also contends that American Phoenix’s reason for firing him—his
attendance—was pretext for discrimination and retaliation. When, as here, an employer
presents a non‐discriminatory or non‐retaliatory reason for the adverse employment
action, a plaintiff can still raise a genuine factual dispute with evidence that the
proffered reason is a smokescreen for an unlawful motive. Harden v. Marion Cty. Sheriff’s
Dep’t, 799 F.3d 857, 863–64 (7th Cir. 2015). American Phoenix came forth with ample
evidence that it fired Blankenship under a neutral, department‐wide policy of which he
was aware and under which he had been warned. Blankenship presents no evidence
that this reason is false. In particular, no evidence supports his assertion that the policy
was selectively enforced within his department. See Baker v. Macon Res., Inc., 750 F.3d
674, 677 (7th Cir. 2014). Nor does any support his contention that his attendance points
were miscalculated. (At his deposition, Blankenship admitted that there was no error in
the calculations). In any event, a mistake does not amount to pretext. See Harden,
799 F.3d at 864. And, despite Blankenship’s suggestion to the contrary, there is no
evidence that the company revised the department‐wide punctuality standards as a
way to trump up a reason to fire Blankenship. In short, Blankenship did not provide
any evidence from which a jury could conclude that either his race or his prior
complaints of discrimination was the real reason he was fired.

       Lastly, Blankenship challenges the district court’s denial of his motions to compel
discovery because, he says, American Phoenix delayed discovery with phony
settlement overtures and then withheld information that prevented him from
No. 19‐2255                                                                        Page 5

presenting evidence at summary judgment. We review for an abuse of discretion and
reverse only if the denial caused actual and substantial prejudice. Gonzalez v. City of
Milwaukee, 791 F.3d 709, 713 (7th Cir. 2015). We see no abuse of discretion here. The
court denied the initial motion to compel after American Phoenix responded to the
discovery requests that Blankenship had attached to his motion. And, addressing the
complaints in Blankenship’s reply brief, the court explained that any noncompliance
had to be addressed with another motion identifying, among other things, the specific
information he required. Despite these instructions, Blankenship did not file another
motion to compel during the discovery period nor, after American Phoenix moved for
summary judgment, did he ask for additional discovery before responding to the
motion. See FED. R. CIV. P. 56(d); First Nat’l Bank and Tr. Corp. v. Am. Eurocopter Corp.,
378 F.3d 682, 694 (7th Cir. 2004). Therefore, if Blankenship was prejudiced by any
missing discovery, the prejudice resulted from his delay in following up. See Packman v.
Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001). Further, after the district court
ruled on the summary judgment motion, it was too late to reopen discovery, so the
court appropriately denied the second motion to compel.

      Accordingly, the judgment is AFFIRMED.
