Argued September 16, 2014
Appeal from the United States District Court for the Western District of Wisconsin. No. 11 C 1 -- William M. Conley, Chief Judge.
For BASHIR SHEIKH, M.D., Plaintiff - Appellant: Jeff Scott Olson, Attorney, Madison, WI.
For GRANT REGIONAL HEALTH CENTER, Defendant - Appellee: Kevin J. Eldridge, Michael Aldana, Attorney, QUARLES & BRADY LLP, Madison, WI.
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
Posner, Circuit Judge.
In 2009 the plaintiff, a physician, was hired by the defendant, a small " critical access" hospital in rural Wisconsin, as the director of its emergency room. (A critical access hospital is a hospital " having no more than 25 inpatient beds; maintaining an annual average length of stay of no more than 96 hours for acute inpatient care; offering 24-hour, 7-day-a-week emergency care; and being located in a rural area, at least a 35-mile drive away from any other hospital." U.S. Dept. of Health & Human Services, " What Are Critical Access Hospitals (CAH)?," www.hrsa.gov/healthit/toolbox/RuralHealthITtoolbox/Introduction/critical.html, visited Sept. 29, 2014.) Fired just months after being hired, he sued the hospital in January 2011 under Title VII, claiming that the hospital had discriminated against him because of his Indian ethnicity. (The complaint added supplemental state law claims to his Title VII claim.) For example, he contended that a hospital employee said to him " you must be that Middle Eastern guy whom they hired as ER director" and accused him of taking her job, spat at him, and told him he belonged to a terrorist class of people and was a danger to the hospital. A number of hospital personnel complained to the plaintiff's superior that he was incompetent--that he had poor patient skills, behaved unprofessionally, misdiagnosed patient ailments, and couldn't get along with the hospital's staff. His superior urged him to resign. That was less than a month after he had begun working at the hospital, a period during which he worked only twelve shifts. He refused to resign, but not long afterward was fired by the hospital's CEO.
He sued pro se, but later obtained a lawyer, who subsequently withdrew, and so the plaintiff was again representing himself. In May 2012 the hospital filed what the plaintiff's opening brief in this court acknowledges was a " heavily supported" motion for summary judgment. The district judge gave the plaintiff until July 16 to respond, stating that " no further extensions will be granted to plaintiff for any reason. Plaintiff should plan accordingly" (emphasis in original). Shortly before the deadline, the plaintiff obtained a new lawyer, who on July 16 filed a brief opposing the hospital's summary judgment motion, with some supporting materials. The brief proposed findings of fact, but did not respond directly
to the hospital's proposed findings of fact in support of the motion for summary judgment.
The plaintiff--not his lawyer--submitted two affidavits (both dated July 16, the deadline for filing, but the second affidavit wasn't filed until the next day) purporting to respond to the hospital's motion. The judge struck the second affidavit as untimely, which it was, having been filed after the July 16 deadline. The plaintiff neither sought permission to make untimely filings nor gave any reason for not having filed the affidavit on time.
The first affidavit is very strange, because all it does is attach the hospital's Human Resources Policies and Procedures Manual, its Medical Staff Bylaws, and the letter terminating the plaintiff. All these materials were already part of the record. They are voluminous (except for the letter of termination), yet the affidavit contains no commentary on them.
The second affidavit is more promising; it consists of 166 paragraphs of facts and arguments. Yet it isn't actually an affidavit--it isn't notarized or otherwise witnessed--though it might pass muster as a declaration, which can be substituted for an affidavit and thus constitute part of the evidentiary ...