Tony Fore v. Bostik Findley, Inc.

* 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).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 22, 2005*
Decided September 28, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-3844
TONY FORE,
Plaintiff-Appellant,
v.
BOSTIK FINDLEY, INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin
No. 03-C-851
Thomas J. Curran,
Judge.
O R D E R
Tony Fore was employed by Bostik Findley, Inc. (“Bostik”) from 1999 until
Bostik laid him off in October of 2001. Fore, an African-American, claims that his
layoff was the result of racial discrimination and sued Bostik under Title VII, 42
U.S.C. § 2000e et seq. In his appeal, Fore’s principal argument is that there is a
genuine dispute of material fact because a state administrative agency had found
probable cause to believe Fore’s termination was discriminatory. Because such
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-3844 Page 2
administrative findings are not binding on district courts and the district court
acted within its discretion in not even considering the finding, we affirm.
Bostik filed a motion for summary judgment and, pursuant to E.D. Wis. L.R.
56.2(a), a list of 149 proposed findings of fact on June 1, 2004. Fore, through his
attorney, filed a response but he failed to contest Bostik’s proposed findings of fact
by responding to each proposed fact as E.D. Wis. L.R. 56.2(b) required. Therefore,
the district court took Bostik’s version of the material facts as undisputed. We too
accept as true Bostik’s proposed findings of material fact, while drawing any
reasonable inference in Fore’s favor. See, e.g., Adams v. Wal-Mart Stores, Inc., 324
F.3d 935, 937 (7th Cir. 2003).
Fore worked in the laminations department at Bostik for two-and-a-half
years. During the latter part of his employment, Fore was subject to a number of
disciplinary violations. In 2001 he received a written warning for insubordination
and three written warnings for excessive absences under Bostik’s attendance policy.
Fore’s performance evaluation in May 2001 included an overall “needs
improvement” rating and noted deficiencies in his attendance, teamwork, and
quality of work.
Bostik eliminated 20 positions in the laminations department from October
2001 through March 2002, including Fore’s. To determine which employees would
be laid off, Bostik supervisors rated employees using six criteria: job performance,
job skills, safety, attendance, teamwork, and seniority. Because of Fore’s
attendance violations and his May 2001 “needs improvement” performance review,
Bostik ranked him 33 out of 38 employees. It was Fore’s low ranking, according to
Bostik’s undisputed facts, that caused his lay-off on October 31, 2001.
Fore contacted the State of Wisconsin Department of Workforce
Development’s Equal Rights Division (“ERD”) in June 2002, claiming that his
discharge was due to racial discrimination. In May 2003, the ERD issued an initial
determination that probable cause supported Fore’s claim of discrimination. There
is no indication that any state court reviewed this finding. Thereafter, in
September 2003, Fore filed his federal complaint alleging that Bostik fabricated its
asserted reasons for laying off Fore as a cover for racial hostility.
When we construe his pro se appellate brief liberally, see Anderson v.
Hardman, 241 F.3d 544, 545 (7th Cir. 2001), Fore presents two issues. First, he
argues that the district court erred in granting summary judgment because the
ERD’s unreviewed probable cause determination, which the district court did not
consider, itself establishes evidence of discrimination. Unreviewed state
administrative proceedings have no preclusive effect on employee’s Title VII claims
in federal court. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 794 (1986); Garcia v.
Vill. of Mount Prospect, 360 F.3d 630, 634 (7th Cir. 2004); Richmond v. St. Joseph

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No. 04-3844 Page 3
Care Ctr. W., 190 F.3d 500, 502 (7th Cir. 1999). Moreover, district courts have
“significant discretion” to refuse even to consider such administrative agency
determinations, Young v. James Green Mgmt., 327 F.3d 616, 624 (7th Cir. 2003),
and we cannot say the district court abused its discretion here. Indeed, the ERD
report itself indicates that the probable cause determination would not be
considered at a hearing on the merits. Furthermore, Fore’s failure to specifically
respond to Bostik’s proposed findings of fact, as required by E.D. Wis. L.R. 56.2(b),
meant the district court could properly consider only facts that Bostik presented
with its summary judgment motion. With the agency determination properly
excluded, it cannot create a genuine dispute of material fact. See Halloway v.
Milwaukee County, 180 F.3d. 820, 827 n.9 (7th Cir. 1999).
Second, Fore argues that the district court erred in finding that he did not
make out the fourth element of a prima facie case: that similarly situated
employees outside his protected class were treated more favorably. 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); 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 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 v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). This
analysis entails a comparison of factors including whether the employees had the
same supervisor, were subject to similar standards, and had comparable experience
and qualifications. See Patterson, 281 F.3d at 680.
Fore failed to present admissible evidence of any similarly situated employee.
While his appellate brief asserts that a number of Caucasians were treated more
favorably, the only record evidence he cites in support of this claim is (1) the ERD
report—which mentions a number of white employees—and (2) a ranking list of 38
employees. The ranking list merely contains the names of 38 Bostik employees,
with utterly no information about their race, duties, supervisors, or past
performance. And, as previously explained, the district court was well within its
discretion not to consider the ERD report. Furthermore, although the ERD report
mentions several white employees, Fore has adduced no evidence that any of these
employees were comparable to him in all material respects. He has not detailed
whether they possessed materially similar skills and qualifications, see Ezell v.
Potter, 400 F.3d 1041, 1049-50 (7th Cir. 2005), or whether they too had been subject
to multiple warnings for attendance violations. The ERD report does not do so
either. Fore’s failure to meet the similarly situated prong with admissible evidence
is fatal to his prima facie case.
AFFIRMED.

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