Gregory R. McGee v. Wisconsin Bell, Incorporated

* 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 August 2, 2006*
Decided August 21, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1148
GREGORY R. MCGEE,
Plaintiff-Appellant,
v.
WISCONSIN BELL,
INCORPORATED,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 03 C 745
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin Bell, Inc., terminated Gregory McGee, a probationary employee, in
July 2001 for poor performance. McGee then brought suit under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming that Wisconsin Bell
discriminated against him on the basis of his gender and race in creating a hostile
work environment, failing to accommodate his request for an ergonomic chair, and
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1148 Page 2
ultimately firing him. The district court granted summary judgment for Wisconsin
Bell. We affirm.
McGee, who is black, began working for Wisconsin Bell in January 2001 as
the only male technical associate in the field dispatch center in Madison, Wisconsin.
Once hired by Wisconsin Bell, McGee was subject to the initial six-month
probationary period for new employees. His principal duty was processing “tickets,”
which are customer service requests and repair and installation orders. Each
technical associate is given a daily list of tickets that must be reviewed and
assigned to technicians at one of the approximately 120 regional offices.
In May 2001, Brian Washington began supervising McGee and noticed errors
in his ticket assignments. Washington met with McGee and McGee’s trainer, Joann
Malec, to discuss the errors and McGee’s continued training. McGee explained that
he believed he was making errors because Malec was pushing him to work too
quickly. Washington instructed McGee to focus on accuracy over speed in assigning
tickets and suggested that McGee take notes during his remaining training so that
he could refer to them as needed.
Over the next two months McGee continued to make errors in assigning
tickets. Washington continued to instruct McGee to focus on accuracy over speed.
Washington also imposed progressive corrective disciplinary action in order to
encourage improvement in McGee’s performance. But throughout June the
frequency of McGee’s errors increased. Washington ultimately suspended McGee
for one day and told him that, when he returned to work, his ticket list would be
monitored and he could have no more than five errors during the next five
workdays. McGee exceeded the allowed number of errors and Washington fired
him.
One of the incidents that arose during McGee’s employment was the denial of
his request for an ergonomic work station, which he maintained would help him
avoid aggravating his back pain from sacro-illiac joint dysfunction. McGee’s request
was denied because he failed to provide sufficient medical records, as required by
Wisconsin Bell’s company policy regarding requests for workplace accommodations.
McGee filed his discrimination suit in December 2003. He alleged that,
because he was an African-American male, he was (1) subjected to a hostile working
environment; (2) denied his requested workplace accommodation; and (3)
terminated. The district court granted summary judgment for Wisconsin Bell. The
court concluded first that the “harassment” to which McGee was subject was not so
severe and pervasive as to alter the conditions of his employment and create a
hostile work environment. Next, because McGee did not present any direct or
circumstantial evidence of discrimination, the court proceeded to analyze his

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No. 05-1148 Page 3
termination claim under the indirect method set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). The court determined that McGee could not make
out a prima facie case of discrimination because he did not show that he was
meeting Wisconsin Bell’s legitimate employment expectations or that he was
treated differently from similarly situated employees not in his protected class, and,
in any event, McGee failed to show that the reasons for his discharge were
pretextual. As for his failure-to-accommodate claim, the court found that Wisconsin
Bell denied McGee’s request for an ergonomic chair because he did not submit the
requisite medical documentation and McGee had not shown that reason to be
pretextual.
We review a grant of summary judgment de novo, construing all facts and
drawing all reasonable inferences in favor of the non-moving party. Cardoso v.
Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005) (citations omitted). Summary
judgment is appropriate if the moving party demonstrates that “there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Material facts are those that might affect the
outcome of the case under the applicable substantive law. Alexander v. City of
South Bend, 433 F.3d 550, 554 (7th Cir. 2006).
McGee’s pro se brief is difficult to parse. We are not certain what specific
errors he identifies in the district court’s judgment, see Anderson v. Hardman, 241
F.3d 544, 545 (7th Cir. 2001), but construing his brief liberally we can possibly
discern two issues for review.
McGee first appears to argue that the district court improperly resolved his
hostile work environment claim without considering certain disciplinary letters
which he claims that Wisconsin Bell placed in his personnel file. He asserts that
these letters are material to his hostile-work-environment claim because they were
“bogus” and demonstrate that the company deliberately harassed him. These
letters, if they exist, were not a part of the summary judgment record so we decline
to consider them. See Hildebrandt v. Ill. Dep’t of Natural Resources, 347 F.3d 1014,
1024-25 (7th Cir. 2003) (confining review of grant of summary judgment to “only
those matters that were before the district court when it entered the judgment”).
McGee also appears to argue that the district court incorrectly concluded,
with regard to his termination claim, that he could not make out a prima facie case
of discrimination because he failed to show that he was treated differently from a
similarly situated employee outside his protected class. He argues that Margaret
Westrich was similarly situated to him because she started shortly after he did, but
was not placed on a one-mistake-per-day standard and was not terminated. McGee
makes this argument for the first time on appeal, and therefore it is waived.
Republic Tobacco v. N. Atl. Trading Co., Inc., 381 F.3d 717, 728 (7th Cir. 2004). But

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for the sake of completeness we note that Ms. Westrich is not similarly situated to
McGee; there is no evidence in the record that she, or any other technical associate,
made mistakes of the type and frequency McGee made. In any event, even if McGee
could show that Westrich were similarly situated to him, he still would be unable to
make out a prima facie case of discrimination because he has not challenged the
court’s determination that he was not meeting Wisconsin Bell’s legitimate
employment expectations. See, e.g., Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 901
(7th Cir. 2005) (holding grant of summary judgment appropriate where plaintiff
failed to establish legitimate expectations element of prima facie case).
AFFIRMED

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