Brian K. Lampley v. Pollution Control Industries of America

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 17, 2009
Decided November 23, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐1037
BRIAN K. LAMPLEY,
Plaintiff‐Appellant,
v.
POLLUTION CONTROL INDUSTRIES
OF AMERICA,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Indiana,
Hammond Division.
No. 2:06‐CV‐392‐PRC
Paul R. Cherry,
Magistrate Judge.
ORDER
In this employment discrimination case, Brian Lampley, an African American, sued
his former employer, Pollution Control Industries of America (“Pollution Control”), for race
discrimination. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
Lampley, however, failed to respond to Pollution Control’s summary judgment motion in
violation of N.D. Ind. L.R. 56.1(a), and so the district court deemed admitted Pollution
Control’s version of the facts. The court went on to grant summary judgment for Pollution
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1037 Page 2
Control, determining that Lampley failed to raise any genuine fact issue supporting a prima
facie case of race discrimination. Lampley appeals, and we affirm.
Because Lampley did not oppose the motion for summary judgment, we, like the
district court, accept the facts as presented by Pollution Control. See Cracco v. Vitran Express,
Inc., 559 F.3d 625, 632 (7th Cir. 2009). Lampley began working for Pollution Control as an at‐
will employee in 2002. In 2006, after an employee reported that Lampley had returned from
his lunch break smelling of alcohol, two supervisors escorted Lampley to a hospital for drug
and alcohol tests. While waiting at the hospital, Lampley told his supervisor, “you will pay
for this one.” When his supervisor asked if he intended the comment as a threat, Lampley
acknowledged that he did. Pollution Control suspended Lampley pending an investigation
into allegations that he had violated the workplace violence provisions of the Employee
Handbook by threatening a supervisor. After the threat was confirmed by a hospital nurse
who had been sitting nearby, Pollution Control closed the investigation and fired Lampley.
Lampley brought this discrimination action under Title VII and 42 U.S.C. § 1981a,
alleging that Pollution Control used a harsher hand with him than with white employees
who had engaged in similar conduct. When Lampley failed to respond to Pollution
Control’s motion for summary judgment, Magistrate Judge Paul Cherry, proceeding with the
parties’ consent, adopted Pollution Control’s version of the facts, concluded that Lampley
failed to establish a prima facie case of race discrimination under either the direct or indirect,
burden‐shifting method, and granted the motion. With regard specifically to the indirect
method, the court found that Lampley failed to establish that he was treated less favorably
than similarly situated white employees. The court concluded that the three individuals
indentified by Lampley—Art Cadena, Ronald Artist, and James Heiser—were not
comparable because they were not accused of violating the company’s workplace violence
policy.
On appeal Lampley argues that the district court erred in granting summary
judgment because the evidence supports a prima facie case of discrimination—even on
Pollution Control’s uncontested version of the record. Specifically Lampley challenges the
district court’s determination that Pollution Control did not provide favorable treatment to
similarly situated white employees.
Under the indirect method of proof, Lampley must prove a prima facie case by
showing, among other things, that a comparable employee outside his protected class
received better treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); McGowan v.
Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009); Adams v. Wal‐Mart Stores, Inc., 324 F.3d 935, 939
(7th Cir. 2003). In the context of a disciplinary action, we normally rely on a showing that
the employees engaged in similar conduct, were subject to the same performance standards,

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No. 09‐1037 Page 3
and dealt with the same supervisor. Peirick v. Indiana Univ.‐Purdue Univ. Indianapolis Athletics
Dept., 510 F.3d 681, 688 (7th Cir. 2007); Radue v. Kimberly‐Clark Corp., 219 F.3d 612, 617‐18 (7th
Cir. 2000).
Lampley renews his argument that his three former white colleagues—Art Cadena,
Ron Artist, and James Heiser—received more lenient treatment from Pollution Control.
First, Lampley contends that Pollution Control let Cadena off with just a warning after a
nurse who was administering his physical examination complained that she felt intimidated
by some of his comments. But the district court properly distinguished Cadena’s conduct,
observing that he was addressing a third party, not a supervisor, and that he was
reprimanded not for making threats but rather for making “rude” remarks. See Adams, 324
F.3d at 940 (employees not similarly situated because eating a co‐worker’s pudding was not
comparable to stealing employer’s money).
For similar reasons, the district court found that Ron Artist, Lampley’s second
comparator, was also not similarly situated. Artist received a three‐day suspension after an
alcohol‐related incident at work. But Artist’s misconduct ended with alcohol abuse, whereas
Lampley’s escalated to a threat against his supervisor—the immediate cause of his
termination. In the absence of any evidence that Artist was disciplined under the workplace
violence rules, the district court correctly concluded that the two instances of misconduct are
not sufficiently comparable. See id.; Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir.
2002).
Finally, Lampley contends that Heiser got off with merely a three‐day suspension
after threatening a supervisor who had asked him to work overtime. But based on Pollution
Control’s version of the facts, which the district court accepted as true, Heiser’s comment
was merely obscene and not threatening, and the company suspended him on the milder
charge of insubordination. The district court was thus correct to conclude that Heiser and
Lampley had not engaged in materially similar conduct. See Adams, 324 F.3d at 940; Radue,
219 F.3d at 618‐19 (concluding that plaintiff’s substantial performance problems precluded a
finding that he was similarly situated to comparators).
AFFIRMED.

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