Eric Ellis v. Fedex Smartpost, Inc.

*After examining the briefs and the records, we have concluded that oral argument is
unnecessary. Thus, the appeals are 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 September 16, 2009 *
Decided September 17, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐1676
ERIC ELLIS,
Plaintiff‐Appellant,
v.
FEDEX SMARTPOST, INC.,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:08‐cv‐125‐WTL‐DML
William T. Lawrence,
Judge.
O R D E R
Eric Ellis appeals the district court’s grant of summary judgment on his claim that
FedEx Smartpost, Inc., failed to promote him on account of his race, sex and other grounds.
We affirm.
Smartpost consolidates and delivers high volumes of low‐weight, business‐to‐
consumer packages using the United States Postal Service for final residential delivery. It
opened an Indianapolis hub in October 2006 and soon thereafter hired Ellis as Parcel
Assistant. As part of his job, Ellis sorted, wrapped, and cut pallets.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1676 Page 2
Ellis’s grievances against Smartpost stem from its decision to promote other Parcel
Assistants instead of him. Because its office had just opened, Smartpost typically created
new positions as needed, without any formal application process. Ellis, who referred to
himself as a “light‐skinned” male, was upset that he was not chosen as a “team leader.”
Instead at a pre‐shift employee meeting in April 2007, management selected Denise Ham, a
white female, and Ben Riley, a white male. Ellis resigned voluntarily the following month.
In July Parcel Assistant Shelly Rush, a white female, was promoted.
Ellis filed suit, claiming that Smartpost failed to promote him due to his race, sex,
and other grounds in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C.
§ 2000e‐2. He claimed that Smartpost improperly promoted three white employees, two of
them female, instead of him. He contended that he was more qualified because of his
education (he had taken college courses), prior mail‐handling experience, and experience
working with pallets.
The district court granted Smartpost’s motion for summary judgment, finding that
Ellis could not establish a prima facie case of discrimination under Title VII based on failure
to promote. Specifically, the court found that Ellis had not shown that the position he
sought was given to a person outside the protected class who was similarly or less qualified
than he. The court noted that the two persons promoted–Riley and Ham–were considered
by their supervisor, Kim Shittu (who happened also to be Ellis’s supervisor), to be well
qualified. According to Shittu, Smartpost promoted Riley and Ham because of their
communication skills, work ethic, positive attitudes, and willingness to seek out additional
responsibility. The court discredited Ellis’s self‐serving statements about his superior work
ethic, especially in light of Shittu’s statement that he “showed very little initiative.” The
court noted that it disregarded Rush’s promotion because it occurred after Ellis had left
Smartpost.
On appeal Ellis first asserts that the district court did not apply the correct legal
standard when it ruled that he failed to establish a prima facie case of discrimination. He
contends that the court should have applied the standard set forth in a Tenth Circuit case,
Simms v. Okla. ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1328
(10th Cir. 1999), which does not require the promoted person to be similarly or less qualified
than the plaintiff. It requires only that the “position remained open or was filled with a
non‐minority.” Id.
But the district court properly followed this circuit’s approach, which has
consistently required a plaintiff to show that he was at least as qualified as the promoted
employees, see, e.g., Hobbs v. City of Chi., 573 F.3d 454, 460 (7th Cir. 2009); Jackson v. City of

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No. 09‐1676 Page 3
Chi., 552 F.3d 619, 622 (7th Cir. 2009). Ellis made no such showing, as the district court
explained, and we decline the invitation to depart from our precedent.
Ellis next argues that the district court should have read his claim as asserting
discrimination under 42 U.S.C. § 2000e‐2 not just in the promotion process but also in
conditions of employment. Although he mentioned harsh work conditions in his
complaint, Ellis forfeited this argument by failing to include it when responding to
Smartpost’s motion for summary judgment. See Humphries v. CBOCS W., Inc., 474 F.3d 387,
407‐08 (7th Cir. 2007). And to the extent Ellis asserts that such conditions were imposed in
retaliation for a complaint he filed earlier about conditions, see 42 U.S.C.A. § 2000e‐3(a), he
waived that claim by not addressing it in his complaint. See Hojnacki v. Klein‐Acosta, 285 F.3d
544, 549 (7th Cir. 2002).
Ellis also argues that the district court should not have credited Smartpost’s reasons
for promoting Riley and Ham. He asserts, without explanation, that Smartpost’s reasoning
was “post hoc,” and notes that Smartpost had no application process for promotions, let
alone any record that he was unable to perform his job. But as the district court found, Ellis
presented no evidence that Smartpost’s stated reasons for its promotional decisions were
dishonest. See Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577‐78 (7th Cir. 2003). In any
event, the absence of any negative work record for Ellis is irrelevant; as the district court
properly concluded, Ellis failed to show that his credentials were so superior to those of
Riley and Ham that no reasonable person could have promoted them over him. See Jordan
v. City of Gary, Ind., 396 F.3d 825, 834 (7th Cir. 2005).
Finally, Ellis asserts that the district court should have considered two unreported
discrimination cases against Federal Express (cited in his response to Smartpost’s motion for
summary judgment) to show that Smartpost has a history of discriminatory practices. See
Satchell et al. v. FedEx Exp., No. 3:03‐cv‐2659 (N.D. Cal. notice of removal filed June 6, 2003);
EEOC v. FedEx Corp., No. 6:02‐cv‐1112‐JA‐DAB (M.D. Fl. filed September 27, 2002). But the
district court did consider these decisions and found no clear nexus between them and the
practices at Smartpost’s Indianapolis office. Ellis did not assert that the plaintiffs in those
cases shared any of the same supervisors or management as he did, see, e.g., Williams v.
Wendler, 530 F.3d 584, 588 (7th Cir. 2008); Keri v. Bd. of Tr. of Purdue Univ., 458 F.3d 620, 630
(7th Cir. 2006), and the district court properly found the connection to Smartpost too remote
to support any pattern of discrimination.
AFFIRMED.

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