Steven L. Anders v. WASTE MANAGEMENT OF WISCONSIN , INCORPORATED , subsidiary

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3862
S TEVEN L. A NDERS ,
Plaintiff-Appellant,
v.
W ASTE M ANAGEMENT OF W ISCONSIN ,
I NCORPORATED , subsidiary, and
W ASTE M ANAGEMENT , I NCORPORATED ,
a parent corporation,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 483—J.P. Stadtmueller, Judge.
____________
A RGUED A PRIL 6, 2006—D ECIDED S EPTEMBER 12, 2006
____________
Before B AUER , W OOD , and S YKES , Circuit Judges.
B AUER , Circuit Judge. On November 12, 2002, Steven L.
Anders, a waste hauler for Waste Management of Franklin,
Wisconsin, attempted to assault his District Manager,
William Snow, in front of numerous co-workers. It is no
surprise that he was fired as a result of this action. Anders,
however, filed suit in the district court claiming that his
dismissal violated the Family and Medical Leave Act, the
Americans with Disabilities Act, Title VII, 42 U.S.C. § 1981,
and the Wisconsin Fair Employment Act. The district court

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2 No. 05-3862
granted summary judgment to the defendants, and we
affirm.
I. Background
Before addressing the underlying facts of the case, we
must first demarcate the scope of the record properly before
this Court on appeal. Following Waste Management’s
motion for summary judgment, Anders was required, as per
Eastern District of Wisconsin local Rule 56.2, to submit “a
specific response to the defendants’ proposed findings of
fact, clearly delineating only those findings to which it is
asserted that a genuine issue of fact exists.” Civ. L.R.
56.2(b)(1). As an example of the intended form, we note that
Waste Management’s Proposed Findings of Fact (PFOF)
was a ten-page document containing sixty-five brief,
numbered paragraphs. Anders’s response, however, was a
sprawling sixty-five page argument that referenced Waste
Management’s proposed findings only in passing. After
reviewing his submission, the district court found that “[o]n
the whole, Anders’[s] response is a disjointed, convoluted,
and hopeless mess; his non-compliance with Rule 56.2(b) is
more than substantial—it is total.” Tr. Rec. 60 at 3 (empha-
sis in original). Under Civ. L.R. 56(e), the district court
rejected Anders’s submitted response to the PFOF and held
that there was no “genuine material issue as to any pro-
posed finding of fact to which no response is set out.” In
other words, it adopted Waste Management’s proposed
findings as the undisputed facts on record. Salvadori v.
Franklin School Dist., 293 F.3d 989, 992 (7th Cir. 2002); see
Waldridge v. American Hoescht Corp., 24 F.3d 918, 921-22
(7th Cir. 1994). We review the district court’s decision for an
abuse of discretion, and find no error. See Koszola v. Bd. of
Educ., 385 F.3d 1104, 1108 (7th Cir. 2004) (citing Ammons
v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.
2004)).

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No. 05-3862 3
1 See Defendant’s Notice of Motion and Motion for Summary
Judgment, stating: “This motion is based on F ED . R. C IV . P. 56 and
Civil L.R. 71 and 56.2, upon the memorandum of law, affidavits
and other documents submitted with this motion, and upon all the
files and proceedings in this case.” Tr. Rec. 27; Defendant’s
Memorandum in Support of Their Motion for Summary Judgment,
stating: “Waste Management incorporates those undisputed facts
into this Memorandum by reference and directs the Court to those
facts, which support the present Motion.” Tr. Rec. 28 at 2.
Additionally, Anders claims that the district court then
went outside of the defendant’s legal arguments and
proffered findings when granting summary judgment. Were
this the case, he would be entitled to rely on the entire
record here on appeal. See Nabozny v. Podlesny, 92 F.3d
446, 450 (7th Cir. 1996) (finding district court erred
in granting summary judgment on grounds and facts not
offered by moving party). But the district court committed
no such error. Anders appears to argue that because the
Order granting summary judgment cited to evidentiary
material beyond just the PFOF, e.g. “Drephal Dep. at 19,”
that the lower court violated some categorical rule set forth
in Nabozny. In Nabozny, however, we did not limit our
review solely to the PFOF. Instead, we stated that “[i]f the
court elects to rely on legal arguments and evidence not
incorporated in, or submitted with, the summary judgment
motion, the court is obligated to consider the entire record
‘to ensure that the record reveals no issue of material fact.’”
Id. (emphasis added).
Anders’s vague and conclusory statements aside, our
comparison of the district court’s Order granting sum-
mary judgment and Waste Management’s Memorandum
and PFOF in support of their motion demonstrates that
each fact cited in support of the Order is indeed present
or incorporated into the motion.1 See Civ. L.R. 56(a).
Specifically, the deposition of Regional Manager Dennis
Drephal, which, at oral argument, Anders claimed was

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4 No. 05-3862
not referenced in the PFOF, is cited in paragraphs 15, 16,
37, 39, and 58. The district court’s variation in citation form
is a far cry from the repeated errors made by the district
court in Nabozny, where summary judgment was granted
on certain claims where the defendant offered no legal
rationale. Id. at 50; compare Brown v. United States, 976
F.2d 1104, 1108-10 (7th Cir. 1992) (expanding scope of
record on appeal where summary judgment was granted on
basis different than that offered by moving party). Further,
the legal grounds upon which the court granted summary
judgment on Anders’s retaliation claim, the other point of
contention raised in his appellate brief, are wholly consis-
tent with the timing and causation argument made by
Waste Management. Thus, Anders’s claim on this initial
point fails. With this legal decision in mind, we turn now to
establish the facts of the case.
Anders, an African-American male, was a unionized “roll-
off” waste-hauler employed at Waste Management’s facility
in Franklin, Wisconsin. His supervisor during the period of
time relevant to this case was Manager Dave Koch, who
was, in turn, supervised by District Manager William Snow.
Over Snow was Regional Manager Dennis Drephal. Waste
Management’s regional management facility, where
Drephal worked, however, was in Menomonee Falls,
Wisconsin, thirty miles from Franklin.
As a roll-off driver, Anders had no pre-determined route.
Each morning when he reported to work he was handed
a route slip that detailed his itinerary for that day. This
arrangement was company policy and was set forth in
Anders’s labor agreement. When he arrived at the Franklin
facility on November 12, 2002, he was handed his route slip
by supervisor John Pena. Anders claims that after receiving
the slip he was told by a co-worker that the stops on his
route had been serviced the day before. He claims that were
this the case, the routes would not need to be serviced again
the next day, and that this would negatively affect his

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No. 05-3862 5
incentive pay. Waste Management policy, however, states
that a driver should attend to his route even if he believes
it was serviced the day before. The reason behind this rule
is that some customers intentionally scheduled back to back
service.
Acting under the belief that his route would not need
to be serviced again, Anders decided to leave work. Claim-
ing that he was feeling sick, i.e., sleepy, shaky, and experi-
encing a headache, he told Pena that he was going home.
Shortly after Anders left the facility, however, Bob O’Brien
told Pena that he overheard Anders say he was “going up to
get [Regional Manager] Dennis Drephal and then he was
coming down to get [Manager] Dave [Koch].” PFOF ¶ 20.
Pena immediately had someone from the Franklin facility
call the Menomonee Falls office and notify them of Anders’s
intentions.
Despite having told Pena that he was not feeling well and
needed to go home, Anders drove the thirty miles to the
Menomonee Falls office. Upon his arrival, he was met in the
facility parking lot by John Schiller, who had received the
warning call from Pena. According to Schiller, Anders
wanted to talk to Drephal because he was unhappy with his
route assignments and supervisors, Koch and Snow.
Schiller told Anders that it was not acceptable for him to
have walked off the job, and that he could wait inside the
building for Drephal to arrive.
Anders went inside briefly, but soon returned to the
parking lot. He claimed that as he waited for Drephal he
began to shake, and his head and chest started hurting; so
he went outside to get some fresh air. In the meantime,
Schiller called Drephal, who told him to have Snow talk
to Anders. After Schiller located Snow, the two men were on
their way to meet Anders when another employee told them
that he was outside lying on his car. Given that this was
November, Schiller went to bring Anders back inside. This

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6 No. 05-3862
did not go as planned. After a few minutes had passed, and
Schiller had not yet returned, Snow and Sam Phillips
walked out to the parking lot where they saw Anders first
pound his fists into his car and then smash his cellular
telephone into the ground. Anders became short of breath,
and someone called the paramedics. At this point, Schiller
went to lead Anders back into the building.
As Anders was being escorted into the building he
attempted to attack Snow. At first he simply leered at
Snow, but he then clenched his fists, lowered his shoulder
into an aggressive stance, and charged. Snow was, to say
the least, afraid. Schiller, who witnessed the entire event,
had to position himself between the two men. Anders,
Schiller said, was “mad as hell” while in the parking lot,
briefly calmed down before heading back to the facility, and
then became “very violent” upon seeing Snow. PFOF ¶ 31.
Phillips, who also witnessed the event, described Anders as
having moved toward Snow “with aggression,” causing him
to move back and exclaim “don’t come after me.” PFOF ¶ 33.
Anders acknowledged that he did walk towards Snow, and
that his behavior could have been interpreted as threaten-
ing.
This was not Anders’s first aggressive incident in the
workplace. His personnel records reflect that he received
other disciplinary violations in 2002. Particularly, on
October 24, he lost his temper with Koch after receiving
a tardy notice. Both Koch and Pena testified that after
being given the notice Anders threw his jacket to the
ground and yelled at Koch in an insubordinate and boister-
ous manner. Anders does not dispute that this disagree-
ment occurred.
These combined actions violated Waste Management’s
Rules and Regulations, which Anders acknowledged
receiving and understanding upon starting work in 1996.
Rule 7 prohibits fighting, assaulting, or otherwise endan-

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No. 05-3862 7
2 Despite his portraying, on appeal, Drephal’s decisionmaking
status as an outstanding question of fact, Anders conceded this
point in briefing before the trial court. See Brief of Plaintiff
in Opposition to Defendants’ Motion for Summary Judgment
at 20.
gering any employee. Rule 11 prohibits insubordination,
and the refusal or failure to follow Company procedures
or to complete work assignments. Further, in 2001, Anders
acknowledged receiving and understanding the Com-
pany’s Code of Conduct, which included its Workplace
Violence policy. The policy states, in relevant part, that
Waste Management “does not tolerate violent behavior at
[its] workplaces, whether committed by or against [their]
employees. These behaviors are prohibited: making threat-
ening remarks, causing physical injury to someone else,
intentionally damaging someone else’s property, and/or
acting aggressively in a way that causes someone else to
fear they could be injured.” PFOF ¶¶ 8, 9.
Anders was subsequently fired from Waste Management.
It is undisputed that Drephal was the final decision-maker.2
In choosing to fire Anders, Drephal considered the events of
November 12 as described by Pena, Snow, Schiller, and
Phillips. Additionally, Supervisor Tom Dixon told Drephal
that Anders had been involved in an altercation with
another employee, and Maintenance Manager Brian
Schlomann informed Drephal that Anders had been short
with him on a prior occasion. Further, Snow informed
Drephal that Anders commented to him on November 6,
that “if things did not improve at Waste Management
someone was going to get hurt.” PFOF ¶ 40.
Anders claimed that he suffered from “panic, anxiety,
depression disorder” (panic disorder). PFOF ¶ 53. The
disorder, he submits, was the cause of his behavior on
November 12. Further, he claims that he requested leave

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8 No. 05-3862
under the FMLA on November 6, 2002, but that Waste
Management denied the request. Snow testified that he and
Anders did speak on November 6 regarding Anders’s health.
During the conversation, he told Anders that the company
would give him time off to see a doctor if it was needed.
Snow said that Anders also wanted to talk about routes and
compensation that day, and that he had to remind Anders
the routes were not assigned to specific drivers and that the
incentive compensation was bound to fluctuate. Snow also
noted that, between August and November, the overall haul
volume decreased, and that numerous drivers experienced
a drop-off in their incentive pay scheme. Regarding Anders’s
claim that he informed the company of his condition, Snow
said Anders did not report experiencing headaches or
sleeplessness that day.
Anders’s union elected not to challenge Waste Manage-
ment’s employment decision. Article 11 of his labor agree-
ment explicitly stated that “[a]ny employee desiring a leave
of absence from his employment shall secure written
permission from both the Union and the Employer.” PFOF
¶ 44. Anders sought no such permission. Further, Anders
testified that prior to his termination he had not been
advised by a physician that he was in need of a leave of
absence.
After being terminated from Waste Management, Anders
was hired by an industry competitor, City Wide Disposal. In
2003, Waste Management acquired City Wide’s assets and
hired a number of their employees. Anders was not re-hired.
This decision, Waste Management claims, was a standard
application of company policy based on the same review
that led them to fire Anders in the first place.
On May 23, 2003, Anders filed this suit in the Eastern
District of Wisconsin. He claimed his termination violated
the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.
(FMLA); the Americans with Disabilities Act, 42 U.S.C.
§ 12101 (ADA); Title VII of the Civil Rights Act of 1964, 42

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No. 05-3862 9
U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; the Thirteenth
Amendment; and the Wisconsin Fair Employment Act, Wis.
Stat. §§ 111.31-111.395 (WFEA). The district court had
proper jurisdiction over the WFEA claims under 28 U.S.C.
§ 1367. On June 23, 2005, the court granted summary
judgment for Waste Management. Pursuant to F ED . R. C IV .
P. 59(e), 60(b), Anders made a “Motion to Alter and Amend
Judgment and Relief from Judgement and Order.” The
district court denied his motion on August 29, 2005. This
appeal followed. Anders argues now that there were
genuine issues of material fact as to each of his claims.
II. Analysis
We review the district court’s grant of summary judgment
de novo, construing all facts and drawing all reasonable
inferences in favor of the nonmoving party. Tanner v.
Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir. 2006).
Summary judgment is appropriate if the moving party
demonstrates “there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to judg-
ment as a matter of law.” F ED . R. C IV . P. 56(c). Material
facts are facts that “might affect the outcome of the suit”
under the applicable substantive law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party
opposing summary judgment may not rest upon mere
allegations or denials contained in their pleadings; in-
stead, it is incumbent upon them to introduce affidavits
or other evidence setting forth specific facts showing a
genuine issue for trial. See, e.g., Williams v. Seniff, 342 F.3d
774, 785 (7th Cir. 2003); see also Johnson v. University of
Wisconsin-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995).
A. Race Discrimination
We examine first Anders’s claim that Waste Management
fired him on the basis of race. This portion of our review

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10 No. 05-3862
includes his arguments for relief under Title VII, § 1981,
and the WFEA. At the outset, we note that the relevant
examination is the same for both Title VII and § 1981. See
Scaife v. Cook County, 446 F.3d 735, 739 (7th Cir. 2006).
Further, in many respects, the WFEA is identical to Title
VII, with the Wisconsin Supreme Court seeking guidance,
at times, from federal appellate precedent when applying
their own law. See Marten Transp., Ltd. v. Dep’t of Industry,
Labor, and Human Relations, 501 N.W.2d 391, 395 (Wis.
1993); Grann v. Madison, 738 F.2d 786, 793-94 (7th Cir.
1984). Therefore, we subject all three claims to the same
review.
Because Anders presented no direct evidence of dis-
crimination, his Title VII, § 1981, and WFEA claims
must proceed under the burden shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir.
2002). Under McDonnell Douglas, the initial burden rests
with the plaintiff to establish a prima facie case. Scaife, 446
F.3d at 739. In a claim for discrimination, the employee
may satisfy this burden by providing evidence that: “(1) he
is a member of a protected class; (2) he was meeting his
employer’s legitimate expectations at the time of the alleged
adverse action; (3) he was subjected to an adverse employ-
ment action; and (4) the employer treated similarly situated
employees not in the protected class more favorably.” Id. If
the plaintiff is unable to establish each element of this
prima facie case, summary judgment must be entered in
favor of the defendant. See Peele, 288 F.3d at 327.
Given the scope of the record before us, Anders fails to
establish either that he was meeting his employer’s legiti-
mate expectations, or that he was treated differently from
similarly situated employees. On the former point, the
inquiry must focus on Anders’s performance at the time of
his dismissal. See Peters v. Renaissance Hotel Operating Co.,
307 F.3d 535, 545 (7th Cir. 2002). It cannot be disputed that

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No. 05-3862 11
his behavior on November 12 failed to meet Waste Manage-
ment’s “legitimate expectations” as established by its Code
of Conduct and Workplace Violence policy. That morning,
Anders walked off the job site at Franklin, drove nearly 30
miles to confront his managers, and then attempted to
attack Snow in front of numerous employees. Even consid-
ering Anders’s contention that Pena gave him permission to
leave the facility, this permission was conditioned on the
fact that he said he was ill and wanted to go home. Which,
again, is not what he did. It was only the beginning of his
aggressive and violent conduct. See Palmer v. Circuit Court
of Cook County, 117 F.3d 351, 352 (7th Cir. 1997) (affirming
grant of summary judgment where plaintiff threatened co-
worker). And while Anders’s claims that his behavior was
not intended to be threatening, he acknowledged that it
may have been interpreted as such. This lone claim of
misinterpretation is not sufficient to create a genuine issue
of material fact when compared to the testimony of Pena,
Snow, Schiller, and Phillips.
When considering the latter issue, his failure to estab-
lish that he was treated less favorably than similarly
situated employees of a different race, we look to many
different factors. See generally Ajayi v. Aramark Bus. Srvs.,
336 F.3d 520, 532 (7th Cir. 2003). Specifically, Anders must
show that he is similarly situated in regard to performance,
qualifications, and conduct. Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617 (7th Cir. 2000) (citing Byrd v. Ronayne,
61 F.3d 1026, 1032 (1st Cir. 1995)). “This normally entails
a showing that the [comparable] employees dealt with the
same supervisor, were subject to the same standards, and
had engaged in similar conduct without differentiating or
mitigating circumstances as would distinguish their conduct
or the employer’s treatment of them.” Id. at 617-18. While
Anders claims on appeal that there were four white,
comparable Waste Management employees who engaged in
analogous acts of aggression, the record is devoid of any
information as to the specifics of their actions, their super-

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12 No. 05-3862
visor, or any mitigating circumstances. See Crawford v. Ind.
Harbor Belt R.R. Co., 2006 WL 2422642, No. 05-2825, slip
op. at 5 (7th Cir. Aug. 23, 2006). And so, Anders’s claim
of race discrimination must fail, too. We consider next his
claim under the ADA.
B. Americans with Disabilities Act
For Anders to establish a claim of disability discrim-
ination, he must first demonstrate that he is disabled
within the meaning of the ADA and the WFEA. To prove
this fact he can show that he has “(1) a physical or mental
impairment that substantially limits him in one or more
major life activities . . .; (2) a record of such an impairment;
or (3) [is] regarded [by the employer] as having such an
impairment.” 42 U.S.C. § 12102(2)(A)-(C). If his condition
does not meet one of these categories, he is not disabled
under the ADA. Nese v. Julian Nordic Constr. Co., 405 F.3d
638, 641 (7th Cir. 2005). Similarly, the WFEA requires a
demonstration of “a physical or mental impairment which
makes achievement unusually difficult or limits the capac-
ity to work.” § 111.32(8)(a). Anders is unable to satisfy the
requirements of either statute.
Even considering the facts in a light most favorable to his
claim, we see that Anders’s panic disorder lasted, at most,
from sometime around November 6 until shortly after
November 12. After it was diagnosed he testified, “things .
. . panned out greatly,” and he could do his job “110 per-
cent.” As the Supreme Court ruled in Toyota Motor Mfg.,
Ky. v. Williams, a short-term impairment such as this does
not rise to the level of disability as defined by the ADA. See
534 U.S. 184, 195 (2002). Instead, Anders must have
demonstrated that the impairment limited a major life
activity on a permanent or long-term basis. Id. at 195, 198;
see also Ogborn v. United Food and Commercial Workers
Union, 305 F.3d 763, 767-68 (7th Cir. 2002) (holding an

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No. 05-3862 13
eight week bout of depression was not a disability as
defined by the ADA). Additionally, Anders’s inability to
meet the requirements of the ADA renders his argument on
appeal, that Waste Management failed to accommodate his
disability, moot. There was simply nothing to accommodate.
Likewise, under the WFEA, Anders carries the burden
of establishing that his condition is a handicap. Am. Motors
Corp. v. Labor & Indus. Review Comm’n, 119 Wis. 2d 706,
710 (Wis. 1984). This fact is a question of law that may be
met by establishing that he has a real or perceived impair-
ment. Id. Wisconsin law defines an impairment as “a real or
perceived lessening or deterioration or damage to a normal
bodily function or bodily condition, or the absence of such
bodily function or such bodily condition.” La Crosse Police
& Fire Comm’n v. Labor & Indus. Review Comm’n, 139 Wis.
2d 740, 761 (Wis. 1987). Again, even when viewed in the
most favorable light, Anders’s few experiences with his
panic disorder do not indicate such a condition. See, e.g.,
Doepke-Kline v. Labor & Indus. Review Comm’n, 704
N.W.2d 605, 610-11 (Wis. Ct. App. 2005) (holding ongoing
asthma condition that caused repeated absences from work
was not a handicap).
C. Family and Medical Leave Act
Having rejected Anders’s race discrimination and ADA
claims, we turn next to his argument that Waste Man-
agement denied him medical leave on November 6 and after
November 12, 2002. We agree that summary judgment was
appropriate here, too.
The FMLA entitles eligible employees “to a total of 12
workweeks of leave during any 12-month period . . .
[b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position
of such employee.” 29 U.S.C. § 2612(a)(1)(D). As a threshold
matter, Anders can not demonstrate that his claimed

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14 No. 05-3862
anxiety disorder rendered him unable to perform the duties
of his position prior to November 12, 2002. The record
before us shows that the his one stand-out incident, the
October 24 confrontation with Koch, stemmed from his
being penalized for tardiness. Other than this, the facts
show that he appeared for work on a regular basis and
without incident.
Regarding his claim that Waste Management denied
him FMLA leave on November 6, the record shows that
Anders merely indicated he was not feeling well. Nothing
that he said to Snow that day would have put Waste
Management on notice that FMLA applied, thus placing
them in a position to deny his request. See Aubuchon v.
Knauf Fiberglass, GMBH, 359 F.3d 950, 952 (7th Cir. 2004).
Additionally, Anders himself had no idea that such leave
was necessary. In his deposition he stated that, as of that
date, he had not seen a physician regarding his condition.
Nor had he requested leave through the Waste Manage-
ment human resources department or his labor union.
These scant facts raise no genuine issue appropriate for
trial.
We are left then, with Anders’s behavior on November 12.
But again, he cannot demonstrate that his inability
to perform the duties of his job were the result of a serious
health condition. While he claims on appeal that he left
work that morning because he was not feeling well, he used
the opportunity not to seek medical assistance, but, instead,
to drive thirty miles to the Menomonee Falls office to
confront his manager. It was this deliberate and aggressive
act that yielded his termination, not his panic disorder.
Indeed, his medical records from later that day indicate he
was “angry at a supervisor at work” and was experiencing
“current homicidal/assaultive ideation.” PFOF ¶ 56. The
FMLA “was designed to help working men and women
balance the conflicting demands of work and personal life,”

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No. 05-3862 15
it was not intended to excuse violence in the work place.
Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir.
1997). While we recognize that Palmer addressed an ADA
claim, and thus is not directly on point, we find its reason-
ing instructive: there we declined to place the defendant
employer on the razor’s edge: “in jeopardy of violating the
[law] if it fired such an employee, yet in jeopardy of being
deemed negligent if it retained him and he hurt someone.”
Palmer, 117 F.3d at 352.
D. Failure to Re-Hire
Anders’s last substantive point is that the district
court erred in dismissing his Title VII race retaliation
claim. He argues that Waste Management chose not to
rehire him following their acquisition of City Wide be-
cause he had filed a complaint with the Equal Employ-
ment Opportunity Commission. But Anders has not pointed
to any direct evidence of retaliation, nor has he shown that
after filing the charge only he, and not any similarly
situated employee who did not file a charge, was subjected
to an adverse action even though he was performing his job
in a satisfactory manner. See Stone v. City of Indianapolis
Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002); see also
Burlington Northern Santa Fe Ry. v. White, 126 S.Ct. 2405
(2006). Again, summary judgment was appropriate.
Finally, because the district court did not err in grant-
ing summary judgment on Anders’s claims, we similarly
find that it did not abuse its discretion in denying
his motion to alter or amend judgment. F ED . R. C IV . P. 59(e);
Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510,
515 (7th Cir. 2006). For failing to present an argument on
his F ED . R. C IV . P. 60(b) claim, the issue is waived.

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16 No. 05-3862
III. Conclusion
For the foregoing reasons, the decision 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—9-12-06

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