HERBERT TAYLOR and RENEE TAYLOR v. ADS, INC ., an Indiana Corporation, d/b/a AREA TRANSPORTATION C O .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3301
H ERBERT T AYLOR and R ENEE T AYLOR ,
Plaintiffs-Appellants,
v.
ADS, I NC ., an Indiana Corporation, d/b/a
A REA T RANSPORTATION C O . and W ESTERN
I NTERMODAL S YSTEMS ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 7554—Rebecca R. Pallmeyer, Judge.
____________
A RGUED A PRIL 9, 2003—D ECIDED A PRIL 29, 2003
____________
Before F LAUM , Chief Judge, and P OSNER and K ANNE ,
Circuit Judges.
F LAUM , Chief Judge. Herbert and Renee Taylor, husband
and wife, appeal the dismissal of their race discrimination
suit brought under Title VII and 42 U.S.C. § 1981. We
affirm.
I. B ACKGROUND
Defendant Area Transportation Co. (“Area”) is an Illinois
corporation that provides trucking services. Though it has

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2 No. 02-3301
its own fleet of trucks, tractors, and trailers and employs its
own drivers, Area occasionally enters into “Independent
Contractor Service Agreements” with outside companies
and individuals who lease vehicles and furnish drivers to
Area in return for a percentage of the revenue. In 1991
Area entered into such an agreement with plaintiff Renee
Taylor, a schoolteacher. The agreement, which was re-
executed in August 1999, provided that it was “intended by
the parties to create the relationship of Independent
Contractor and not of employer/employee” and that “[e]ither
party may, at its option in writing to the other, terminate
this agreement.” The agreement further stated that Renee
Taylor was responsible for all the costs of maintaining
her truck, as well as all costs, such as wages, income tax
withholding, and Social Security contributions, associated
with the employment of her drivers.
Renee Taylor designated her husband, plaintiff Herbert
Taylor, as her driver under the agreement. Area then
assigned Herbert Taylor to work for defendant Western
Intermodal Services (“Western”), an Illinois corporation
that contracts with Area for trucking services. Both Area
and Western are subsidiaries of defendant Alternative
Distribution Systems (“ADS”).
Sometime around January 2000, Area terminated the
agreement with Renee Taylor. The reason for the termina-
tion is disputed. Defendants say that it was due to the fact
that Renee Taylor failed to make repairs to her truck
as required by the agreement. Plaintiffs, on the other
hand, claim that Area “constructively discharged” Herbert
Taylor in December 1999 by withholding $2600 allegedly
owed to him for past services rendered.
In December 2000 Renee and Herbert Taylor sued Area,
Western, and ADS, claiming first that Herbert Taylor was
discriminated against in violation of Title VII. The com-
plaint specifically alleged that Herbert Taylor was treated

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No. 02-3301 3
less favorably than similarly situated non-black employees
“in that he was given more difficult tasks requiring greater
effort[;] he was not given opportunities for work assign-
ment; and he was denied the opportunity for benefits (extra-
time hours and early days); and he was constructively
discharged in December, 1999, when Defendants confis-
cated [his] weekly pay due 12/30/99, discriminatory [sic]
alleging earlier overpayment.” As an alternative claim,
plaintiffs asserted that the defendants discriminated
against Renee Taylor in violation of 42 U.S.C. § 1981.
II. D ISCUSSION
The district court granted summary judgment for the
defendants on the Title VII claim, and rightly so. Title VII
protects only employees, Ost v. West Suburban Travelers
Limousine, Inc., 88 F.3d 435, 438-40 (7th Cir. 1996), and
the evidence here unequivocally established that there was
no employment relationship between Herbert Taylor and
any of the defendants. The checks that Area wrote for
Herbert Taylor’s services were made payable to Renee
Taylor, not Herbert. No amounts were withheld for income
tax or Social Security contributions, and the annual totals
paid to Renee Taylor were reported on a Form 1099 as
independent contractor payments, not on a W-2. Further,
defendants offered as evidence Herbert Taylor’s driver
qualification form, which has a checkmark in the blank for
“Independent Contractor Driver” rather than that for
“Company Driver.” And finally, the Agreement itself states
that the parties’ intent was “to create the relationship of
Independent Contractor and not of employer/employee” and
imposes on Renee Taylor the obligation to pay her driver’s
wages. All this evidence was uncontroverted and clearly
shows that Herbert Taylor was not an employee of the
defendants. Plaintiffs’ self-serving assertions otherwise
are frivolous.

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4 No. 02-3301
Furthermore, even assuming arguendo that Herbert
Taylor was defendants’ employee, his Title VII claim would
still fail because he has not made out a prima facie case
of discrimination. Because he does not have any direct
evidence of discrimination, Herbert Taylor must show
that similarly situated non-black employees were treated
more favorably than he was. Patton v. Indianapolis Pub.
Sch. Bd., 276 F.3d 334, 338 (7th Cir. 2002). But the only
potential comparative plaintiffs point to, a white male by
the name of John Noel, is not an employee; he is an inde-
pendent contractor. Further, Noel is not similarly situated
for at least two reasons: one, an independent contractor
such as Noel is different from an independent contractor
driver such as Herbert Taylor (Noel owns his own vehicle),
and two, Noel has been driving for the defendants for
several years longer than Herbert Taylor has. And even
putting this aside, the district court properly found that
there was no evidence that Noel was ever treated more
favorably. All the plaintiffs have to rely on are their own
self-serving statements of preferential treatment, which
are insufficient to defeat summary judgment. Conley v.
Village of Bedford Park, 215 F.3d 703, 711-12 (7th Cir.
2000).
The district court was also right to grant summary
judgment for the defendants on Renee Taylor’s § 1981
claim. Renee Taylor asserts that she was discriminated
against “in the same way and each and every time” that
Herbert Taylor was discriminated against. But this claim
fails for the same reason the Title VII claim does—plain-
tiffs have provided no evidence that any of the defendants’
actions were motivated by plaintiffs’ race.

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No. 02-3301 5
III. C ONCLUSION
The judgment of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-29-03

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