Keith Washington v. Safer Foundation

* After examining 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. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 26, 2008 *
Decided March 26, 2008
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐3308
KEITH WASHINGTON,
Plaintiff‐Appellant,
v.
SAFER FOUNDATION,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 05 C 549
Wayne R. Andersen,
Judge.
O R D E R
Keith Washington, an African‐American, was fired from his job at Safer Foundation,
an organization that helps formerly incarcerated individuals re‐enter their communities,
after he violated the organization’s absence policy. He filed this Title VII action against
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐3308 Page 2
Safer and two of its employees alleging race discrimination, gender discrimination, and
retaliation. Washington voluntarily dismissed the individual defendants, and the district
court dismissed Washington’s gender discrimination and retaliation claims because he did
not first present them to the EEOC. After some discovery, the district court granted
summary judgment for Safer on the remaining race claims. Washington appeals from the
grant of summary judgment only and we affirm.
Washington’s first attendance problem was in 2002 when he failed to show up for
work one day. He was issued a written reprimand and does not appear to have had any
trouble getting to work until April 2004. On a Friday that month, Safer gave Washington a
written policy explaining how employees were to notify a supervisor before being late or
absent. The next week, Washington violated that policy three times. Without ever telling
his supervisor, Washington was late on Monday, on Thursday he left early, and on Friday
he failed to show up at all. Washington’s supervisors met with him the following Monday
and terminated him.
Washington filed a formal complaint with Safer in which he attempted to explain his
absences. Among other excuses, Washington claimed that on the Thursday and Friday in
question he had to go to the bank to fix an error that prevented the deposit of his paycheck.
(It is worth noting that Washington is a prolific bank robber currently serving a 108‐month
sentence in federal prison. In criminal proceedings, he admitted to attempting to rob a bank
on Thursday, April 15, 2004, one of the days he missed work at Safer.) Safer initially denied
Washington’s request for reinstatement, but eventually relented, offering him the chance to
return if, among other conditions, he withdrew his request for back pay. Washington
turned down the offer and brought this lawsuit.
We review a grant of summary judgment de novo, construing all facts and reasonable
inferences in the nonmovantʹs favor. Perez v. Illinois, 488 F.3d 773, 776 (7th Cir. 2007).
Washington attempted to prove discrimination under the indirect, burden‐shifting method.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802‐03 (1973). One element of the prima
facie case that Washington must prove under this method is that his performance met Saferʹs
legitimate expectations. See, e.g., Barricks v. Eli Lilly and Co., 481 F.3d 556, 559 (7th Cir. 2007).
The district court held that Washington failed to satisfy that element and that even if he
could satisfy all the elements of a prima facie case, Safer had presented a legitimate
nondiscriminatory reason for termination, the repeated absences, which Washington had
failed to rebut.
We agree with the district court that Washington cannot make a prima facie case
because he cannot establish that his performance met Saferʹs legitimate expectations.
Washington does not dispute that he was aware of Safer’s absence policy and violated it.

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No. 07‐3308 Page 3
That is enough to doom his prima facie case. See, e.g., Timmons v. General Motors Corp., 469
F.3d 1122, 1128 (7th Cir. 2006); Contreras v. Suncast Corp., 237 F.3d 756, 761 (7th Cir. 2001).
But Washington contends that we should consider whether he was meeting Safer’s
legitimate expectations at the same time that we consider his attempt to rebut Safer’s
proffered legitimate nondiscriminatory reason for his termination. See Jones v. Union Pacific
R.R. Co., 302 F.3d 735, 742 (7th Cir. 2002); Simmons v. Chicago Bd. of Educ., 289 F.3d 488, 492
(7th Cir. 2002). But that approach would not help Washington because he has done nothing
to show that Safer’s proffered reason for terminating him was pretextual. He simply has
produced no admissible evidence to suggest that his race, and not his absences, was “the
determining factor in his discharge.” Jones, 302 F.3d at 742. His only argument for pretext is
that his termination was unjustified, but an employer’s justification for termination need
only be honestly held; it need not be correct. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696
(7th Cir. 2006). Washington also argues that the offer to reinstate him shows that his
termination was unjustified. Even if this were so, the reinstatement offer in no way shows
that his termination was motivated by race. Without any evidence to suggest a racial
motivation, even if Washington could make a prima facie case, he could not possibly rebut
Safer’s legitimate nondiscriminatory reason for his termination.
Accordingly, the district courtʹs grant of summary judgment is A FFIRMED.

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