Fred Nance, Jr. v. Chicago Christian Industrial League

* 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 March 28, 2006*
Decided March 29, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2353
FRED NANCE, JR.,
Plaintiff-Appellant,
v.
CHICAGO CHRISTIAN
INDUSTRIAL LEAGUE, et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division
No. 04 C 1833
Elaine E. Bucklo,
Judge.
O R D E R
Pro se appellant Fred Nance, Jr., sued his former employer, Chicago
Christian Industrial League (CCIL), alleging that the agency discriminated against
him on the basis of race, sex, and age, and that he suffered sexual harassment
amounting to a hostile work environment. The district court granted summary
judgment to CCIL, concluding that Nance failed to show that any employee was
similarly situated, and that the alleged harassment was neither attributable to his
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-2353 Page 2
gender nor severe and pervasive enough to give rise to liability under Title VII. We
affirm.
CCIL is a social service agency that provides food, clothing, shelter,
counseling, and job training for the homeless. Nance, who is black, was hired in
November 2002 to fill one of several positions as a case manager in CCIL’s Single
Adult Program. He was then 53 years old.
Nance got off on the wrong foot with several of his coworkers by informing
them that he was working on a Ph. D. in Social Policy Analysis and Planning and
that CCIL Associate Director Felix Matlock had given him permission to collect
data on the agency’s clients for his dissertation. Two members of the staff, in
particular, resented the fact that he identified more with the interns who came to
CCIL to work on projects toward advanced degrees than with the rest of the
permanent staff. According to Nance, these staff members—black
women—complained to management and colleagues that he was neglecting his job
responsibilities in favor of the Ph.D., and attempted to undermine his authority
with clients. In July 2003, Associate Director Matlock asked Nance to choose
another organization as the subject of his dissertation because he was concerned
about the “impression” among the staff that Nance’s “primary work” was the
dissertation.
According to CCIL, Nance also had difficulty in dealing with the agency’s
homeless clients. Nance himself acknowledges that in February 2003 he was
warned by his supervisor that management had received “numerous complaints”
that he was “yelling at clients” and behaving in other ways that were unacceptable.
But Nance is certain that the problem was resolved. The proof, as he sees it, is that
in June 2003 he received a “certificate of appreciation” from CCIL’s Executive
Director for his “years of dedicated service to Chicago’s Homeless.” Further, Nance
points to the fact that in May 2003 he was moved into the newly created position of
Policy and Procedure Analyst in the Education Department. There he was under
the direct supervision of Associate Director Matlock, who, Nance contends, created
the position for him in recognition of his dissertation research on social policy.
Nance perceived the move as somewhat of a promotion, though by his own
admission, it involved “diminished” duties and no increase in salary. CCIL,
however, claims that it moved Nance into the new position so that he would have
less direct contact with clients.
In August 2003 CCIL once again considered moving Nance. By the end of the
month, however, management had concluded that a reduction in force was
necessary because of a shortfall in donations and other revenues. The agency
decided to cut two of its case-manager positions and eliminate the position of Policy
and Procedure Analyst.

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No. 05-2353 Page 3
The case managers laid off with Nance were a black female, aged 40 (she was
later rehired), and a black female, aged 31. CCIL chose to retain as case managers
two black males, aged 52, and one black male, aged 51; two black females, aged 60
and 44, respectively; and one white female, aged 43. Remaining in the Education
Department were a black male, aged 70, and a black female, aged 35. Two of these
employees had seniority equal to or lesser than Nance’s: the white female case
manager had been hired on the same day as Nance, and the black female, aged 60,
was still in her 90-day probationary period.
In March 2004 Nance filed suit against CCIL under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. Nance argues that CCIL
discriminated against him when it forbade him to collect data “to pursue his
educational goals,” while allowing younger, white, and mostly female interns to do
so, and when it terminated him while retaining a white female of equal seniority
and a black female of lesser seniority. In addition, in his view, CCIL discriminated
against him again several months later when it chose to rehire the 40-year-old
black female and did not rehire him. Finally, Nance claims that he was subjected to
sexual harassment and a hostile work environment by the two female coworkers
who contended that he was neglecting his work for CCIL.
On appeal Nance argues that the district court erred in failing to recognize
that the eight persons he identified (five interns and three case managers) were
similarly situated to him under the factors listed in Patterson v. Avery Dennison
Corp., 281 F.3d 676, 680 (7th Cir. 2002), including whether the employees worked
under the same supervisor, whether they were held to the same standards, and
whether they had the same education, experience, and other qualifications. Nance
here focuses on the interns, contending that their academic projects were
supervised by Associate Director Matlock, just as his was; that they were all
engaged in the same sort of data collection; and that they were subject to the same
academic and professional standards. See id. But it is not enough for him to show
that he can meet these criteria because the test for demonstrating that another
employee is similarly situated embraces all relevant factors, the number of which
will depend on the particular facts of the case. Id.; see also Radue v. Kimberly-
Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). Nance’s problem is that he does
not show that the characteristics he shared with the interns were relevant to his
position. See id.
Nor does he show that he was similarly situated to the case managers with
less seniority who were retained after he was terminated. At the time he was laid
off, he was no longer a case manager but was serving as Policy and Procedure
Analyst. We said in Johnson v. Zema Sys. Corp., 170 F.3d 734, 743 (7th Cir. 1999),
that job titles are not determinative of whether an employee is similarly situated.
And even the job responsibilities might not be decisive if we were persuaded that

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No. 05-2353 Page 4
CCIL moved Nance simply to insulate itself from claims of discrimination before
terminating him. See id. But Nance does not argue any such thing; he insists that
the position involved real responsibilities and that it was intended to benefit both
him and CCIL. Considering the evidence in the light most favorable to Nance, we
agree with the district court that no one was similarly situated to him.
Furthermore, there would be no reason to disturb the grant of summary
judgment, even if Nance had succeeded in establishing his prima facie case, because
the evidence he offers to rebut CCIL’s asserted reason for terminating him is too
weak to support an inference of pretext. A plaintiff may avoid summary judgment
by placing the employer’s explanation in doubt. Rudin v. Lincoln Land Cmty. Coll.,
420 F.3d 712, 726 (7th Cir. 2005); Zaccagnini v. Chas. Levy Circulating Co., 338
F.3d 672, 676 (7th Cir. 2003). But Nance’s claims that Associate Director Matlock
spoke to him about transferring to another department just four days before the
announcement of the reduction in force and that CCIL rehired one of the women
laid off within the same fiscal year do not adequately bring into question CCIL’s
assertion that it fired Nance due to budget constraints. In fact, CCIL’s
consideration of an eleventh-hour transfer for Nance supports an inference against
discrimination since it suggests that CCIL explored alternatives before terminating
him.
Nance counters that he was prevented from presenting his case in its
strongest light because CCIL failed to cooperate in discovery and because the
magistrate judge assigned to supervise the discovery process denied his motions to
compel. But this argument fails because he failed to raise it properly in the district
court. If he believed that further discovery was necessary so that he could
withstand summary judgment, he should have filed a motion under Federal Rule of
Civil Procedure 56(f). First Nat’l Bank & Trust Corp. v. Am. Eurocopter Corp., 378
F.3d 682, 694 (7th Cir. 2004). Further, before we can conclude that the district
court erroneously limited discovery, we must decide that Nance has been
prejudiced. See Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328
F.3d 309, 319 (7th Cir. 2003). He fails to demonstrate how additional discovery
could have made a difference, however, and a party is not entitled to block summary
judgment by asserting a general need for further discovery. See Woods v. City of
Chicago, 234 F.3d 979, 990-91 (7th Cir. 2000).
The remainder of Nance’s arguments do not merit discussion.
AFFIRMED.

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