Morris, Willie v. O'Boyle, Bill , 168 F. App'x 118 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2006 *
Decided February 24, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 04-2900
WILLIE MORRIS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division
v.
No. 03 C 4621
BILL O’BOYLE
and FIRST EQUITY MORTGAGE, Wayne R. Andersen,
Defendants-Appellees. Judge.
ORDER
Willie Morris worked as a telemarketer at First Equity Mortgage for less
than a week before Bill O’Boyle, president of First Equity, fired him. Morris, an
African-American male, sued O’Boyle and First Equity (collectively, “defendants”)
under Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981, alleging race and
sex discrimination. The district court granted summary judgment for defendants.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-2900 Page 2
Because Morris cannot establish that defendants treated a similarly situated non-
black or female employee more favorably than he, we affirm.
Morris failed to respond specifically to defendants’ statement of material
facts and did not support his facts with references to the evidentiary record as Local
Rule 56.1 required him to do in opposition to summary judgment. The district court
therefore adopted, as do we, the defendants’ version of the facts. See N.D. Ill. L. R.
56.1(b); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 937 (7th Cir. 2003).
Nonetheless, we view these facts in a light most favorable to Morris. See Adams,
324 F.3d at 937. O’Boyle first hired Morris as a telemarketer in April 2002. On the
day he was scheduled to start work, Morris called O’Boyle, explaining that he could
not work that day because he was in a car accident. O’Boyle arranged a second
start date for Morris. Again, Morris failed to show up for work. O’Boyle contacted
Morris to inquire why he didn’t show, and Morris told him he wouldn’t be working
at First Equity because he had another job.
Several months later, Morris sought work again at First Equity. O’Boyle
warned Morris that if he violated First Equity’s attendance policy—which required
employees to contact the office manager a minimum of three hours before the start
of a shift if they were going to be late or absent—he would be discharged. Morris
started work at First Equity in the beginning of November. After working for three
or four days, Morris called into work about thirty minutes before the start of his
shift, explaining that he would be late. Later that day, with only several hours of
his shift remaining, Morris called to say he couldn’t make it to work. O’Boyle fired
Morris for failing to show up to work and for violating the attendance policy.
In his brief to this court, Morris contends that he made out a claim for race
and gender discrimination under both the direct and the indirect methods.2 A claim
for race or sex discrimination can survive summary judgment only if the plaintiff
provides material evidence of discrimination under the direct or indirect methods of
proof. See Adams, 324 F.3d at 938 (race); Whittaker v. N. Ill. Univ., 424 F.3d 640,
646 (7th Cir. 2005) (sex). The direct method essentially requires either an
2
Morris also alleges—for the first time on appeal—that his termination
amounted to age discrimination. Because Morris did not raise his age
discrimination claim in his EEOC charge or in district court, we will not consider it
here. See Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 527-28 (7th Cir. 2003)
(failure to assert age discrimination claim in EEOC charge precludes claim on
appeal); King v. Ill. State Bd. Of Elections, 410 F.3d 404, 424 (7th Cir. 2005) (issues
not raised before the district court are waived on appeal). Even if he hadn’t waived
the claim, on appeal he fails to mention his own age or the ages of other employees
who he believes were treated better, so it is not possible to evaluate it.
No. 04-2900 Page 3
admission of prohibited animus or statements or conduct from the decisionmaker
from which forbidden hostility may be inferred. See Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 616 (7th Cir. 2000). Morris has presented no such admissible
evidence. Instead, he has adduced the affidavit of former First Equity employee
Mary Russell who asserts that O’Boyle is a racist. But because her affidavit makes
this claim only in the form of an unsubstantiated conclusion, it is not sufficient to
defeat summary judgment. See Witte v. Wis. Dep’t of Corrs., No. 04-3962, 2006 WL
156737 at *5 (7th Cir. Jan. 23, 2006); Drake v. Minn. Mining & Mfg. Co., 134 F.3d
878, 887 (7th Cir. 1998).
Morris cannot make out a prima facie case for race or sex discrimination
under the indirect method either because he cannot identify any non-black or
female similarly situated employees. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1011 (7th Cir.
2004). It is the plaintiff’s burden to present admissible evidence of a specific
employee outside his protected class who was treated more favorably than he,
Adams, 324 F.3d at 939, and that employee must be “directly comparable to [him]
in all material respects,” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th
Cir. 2002); see Radue, 219 F.3d at 618.
In an attempt to meet this burden, Morris presents his own unsworn
statement. Morris compares himself to Maria Heinrich, who he alleged was a white
telemarketer who started employment at First Equity the same time as Morris,
shared the same work schedule, and missed work twice for “personal” reasons but
was not fired. We need not consider this statement because it does not comply with
Rule 56(e) (affidavits must be sworn and based on personal knowledge). The
undisputed evidence properly before the district court was that Heinrich did not
miss any scheduled work. But even if we take Morris’s statement at face value, he
has not shown that he and Heinrich were materially similar, see Ezell v. Potter, 400
F.3d 1041, 1049-50 (7th Cir. 2005), because she did not violate the attendance policy
like he did, and she did not miss work three times during her first six assigned days
of work, as he did. Furthermore, there is no evidence that her absence for “personal
reasons” violated the attendance policy. Morris’s failure to meet the similarly
situated prong of the prima facie case with admissible evidence is fatal to his
claims. Moreover, Morris has not countered the inference (though not a
presumption) that discrimination has not occurred when the same person (O’Boyle)
both hired and fired Morris. See Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742,
747 (7th Cir. 2002).
The grant of summary judgment is therefore AFFIRMED in favor of O’Boyle
and First Equity.