Moss, Belinda v. Ameritech Services , 166 F. App'x 849 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 14, 2005
Decided January 11, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1270
BELINDA MOSS, Appeal from the United States
also known as BELINDA JONES, District Court for the Southern District
Plaintiff-Appellant, of Indiana, Evansville Division
v. No. 3:03-cv-80-RLY-VSS
AMERITECH SERVICES, INC., Richard L. Young,
also known as SBC/AMERITECH, Judge.
also known as SBC SMART,
Defendant-Appellee.
ORDER
In January 2001, after working for Ameritech in Chicago for nearly three
years, Belinda Moss was transferred to a supervisory position at Ameritech in
Evansville, Indiana. The company discharged her in late 2002. After exhausting
various administrative remedies, Moss sued Ameritech alleging that her
termination was the result of race discrimination (she is African-American), sex
discrimination, and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq.;
age discrimination (she is over 50) in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; and disability discrimination
(she has asthma) in violation of the Americans with Disabilities Act (“ADA”), 42
No. 05-1270 Page 2
U.S.C. § 12101 et seq. After the district court dismissed her case on summary
judgment, Moss filed this appeal which we resolve today.
Ameritech’s motion for summary judgment included a list of 50 material facts
supported by citations to four affidavits, Moss’s deposition, and her EEOC
complaint. It stated that Moss was laid off not because of any of the five bases of
discrimination alleged, but due to a reduction in force (“RIF”). The RIF, according
to Ameritech, required the company to eliminate one out of three managerial
positions at the Evansville facility. Moss was laid off because she had the least
amount of supervisory experience and the most performance and attendance
problems.
In opposition to Ameritech’s motion, Moss relied on numerous facts that,
according to her, prove discrimination: she was replaced by a younger white male; a
supervisor gave her an African-American Christmas tree-top ornament; she was
greeted with “hostility” at the Evansville facility; a fellow employee told her that
computer data was “lost” when it was not; she was sent home for wearing a shirt
exposing her midriff while white employees wearing equally revealing attire were
not sent home; an Ameritech employee came to “check” on her while she was in the
hospital; she had to pay her own moving expenses to Evansville while a white male
employee was reimbursed for his expenses; her internal employment discrimination
complaints were not resolved; and the climate of Evansville aggravated her asthma.
Moss did not explain how these facts demonstrate unlawful discrimination and did
not cite applicable law.
In granting summary judgment for Ameritech the district court held that
Moss could not make out a prima facie case of race, sex, age, or disability
discrimination because she failed to point to any similarly situated white, male,
younger, or non-disabled employees that were treated more favorably than her.
Further, the court found that the RIF was a legitimate, non-discriminatory reason
for Ameritech’s termination of Moss, and that she failed to show this reason was a
pretext for discrimination. Regarding the disability discrimination claim, the
district court additionally concluded that Moss’s asthma did not render her
disabled. Finally, the court held that because Moss did not even address
Ameritech’s arguments that she was not subject to retaliation, Ameritech was also
entitled to summary judgment on the retaliation claim.
Moss’s brief on appeal is somewhat unfocused. The following examples are
representative of the brief as a whole: “The District Court erroneously, even to the
point of bias, has required direct and beyond a reasonable doubt proof of everything
involved,” and “[i]n fact, such a reading could very well require entry of judgment,
sua sponte, on the issue of liability for Moss, leaving only the issue of damages open
No. 05-1270 Page 3
for trial.” In any event, we have interpreted Moss’s brief broadly and in the best
possible light.
Moss argues that the district court either “totally ignored” or applied “a
totally improper standard of proof” to the evidence presented on the motion for
summary judgment. Specifically, she argues that the district court did not properly
consider portions of her deposition attached to Ameritech’s motion and to her
response. Further, she asserts that if the district court properly considered the
deposition evidence she and Ameritech provided, “unlawful discrimination” would
be shown. To support her argument that the court applied an “improper standard
of proof,” Moss cites to St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), asserting that the
standard to defeat a motion for summary judgment is low, and that all she needed
to do was show that a jury “could” rule in her favor. She also quotes the proposition
from Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), that evidence
presented by the non-moving party “is to be believed.”
We review a district court’s grant of summary judgment de novo, viewing all
facts in the light most favorable to the non-movant. See Cardoso v. Robert Bosch
Corp., 427 F.3d 429, 432 (7th Cir. 2005). However, the non-movant still must set
forth specific facts that demonstrate a genuine issue for trial. See Rozskowiak v.
Vill. of Arlington Heights, 415 F.3d 608, 612 (7th Cir. 2005). Summary judgment is
the “put up or shut up moment in a lawsuit, when a party must show what evidence
it has that would convince a trier of fact to accept its version of events.” Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation and
citation omitted).
A claim for race, sex, age, or disability discrimination, or one for retaliation
can survive summary judgment if the plaintiff provides direct or indirect evidence of
discrimination or retaliation. Moss did not indicate to the district court in her
opposition brief which method of proof she was employing, and the district court did
not analyze her claim under the direct method. On appeal, Moss is similarly
unclear. The only mention she makes of direct evidence in her appellate brief is her
claim that, if the district court had properly examined the evidence, “even the
requirements of direct evidence at the time of trial would have been met.” But she
does not develop this argument or cite to any legal authority. Even if Moss had
used the direct method of proof, “[d]irect evidence essentially requires an admission
by the decision-maker that his actions were based on the prohibited animus,” Radue
v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). Moss has no such
evidence.
To the extent that Moss proceeds under the indirect burden-shifting method
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), that argument is
No. 05-1270 Page 4
also undeveloped. While she cites three employment discrimination cases that use
the indirect method, she neither sets out the elements of a prima facie case nor
identifies facts and evidence establishing a prima facie case. See id. at 802; Little v.
Ill. Dep’t of Revenue, 369 F.3d 1007, 1011 (7th Cir. 2004). Even if Moss had argued
her discrimination claims under the indirect method, she has not, as the district
court correctly held, made out the fourth element of her prima facie case: similarly
situated employees outside her protected class were not discharged.1 See
McDonnell Douglas, 411 U.S. at 802; Little, 369 F.3d at 1011; see also Bellaver v.
Quanex Corp., 200 F.3d 485, 493-94 (7th Cir. 2000) (discussing prima facie case in
context of reduction in force). It is the plaintiff’s burden to present admissible
evidence of a specific employee outside her protected class who was treated more
favorably than she, Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.
2003), and that employee must be “directly comparable to her in all material
respects,” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002); see
Radue, 219 F.3d at 618.
Moss did not specifically identify—much less present admissible evidence
of—any similarly situated employee who was white, male, significantly younger, not
disabled, or who had not filed prior discrimination complaints and was not
terminated during the RIF. The only time she mentions a potential similarly
situated employee is in her opposition brief where she states, without citing to any
evidence, that “she was replaced by a white male younger than she.” Moss
produced no evidence that this employee was comparable to her in all material
aspects, see Ezell v. Potter, 400 F.3d 1041, 1049-50 (7th Cir. 2005), and her
deposition testimony suggests that he had more experience than she. Moss’s failure
to satisfy the similarly situated prong is fatal to her prima facie case.
AFFIRMED.
1
To the extent that Moss is arguing that events other than her discharge
from Ameritech—such as being sent home for wearing a shirt exposing her midriff,
having an Ameritech employee come to “check” on her while she was in the hospital,
not being reimbursed for moving expenses, or being told by a co-supervisor that
data was lost when it was not—constitute adverse employment actions, her
arguments fail. See Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002); Tyler v.
Ispat Inland, Inc., 245 F.3d 969, 972 (7th Cir. 2001).