NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2013*
Decided October 25, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐1828
LAWRENCE B. SMIZER, Appeal from the United States District
Plaintiff–Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 C 4304
COMMUNITY MENNONITE EARLY
LEARNING CENTER, John Z. Lee,
Defendant–Appellee. Judge.
O R D E R
Lawrence Smizer was fired from his job as a teacher’s aide at the Community
Mennonite Early Learning Center. The reason, he believes, is that the Center’s
director—his mother—was reacting to statements from potential clients who had
decided against placing their daughters at the daycare when they realized that a male
staff member would be attending their toddlers. The Center, in contrast, says that the
*
After examining the briefs and 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)(C).
No. 13‐1828 Page 2
plaintiff was fired because he brought a family squabble into the workplace. The
plaintiff sued the Center under Title VII of the Civil Rights Act of 1964, see 42 U.S.C.
§ 2000e‐2(a)(1), and also included in his complaint a state‐law claim for defamation. The
district court granted summary judgment for the Center on the Title VII claim and then
declined to exercise jurisdiction over the defamation claim. We conclude that a jury
could not side with the plaintiff based on the evidence presented at summary judgment,
and thus we affirm the judgment.
The Center is church‐affiliated and offers daycare for newborns through age five.
It also has a kindergarten program. The plaintiff was hired in 1993 as a teacher’s aide.
When he lost his job in April 2010, he was assigned to a classroom where he supervised
two‐year‐old children. At that time only one of his coworkers, a cook, was male. As of
November 2011 the Center had 19 employees, and its website states that currently it is
licensed to serve 210 children. The Center has not suggested that sex could be a
bona fide occupational qualification for a teacher’s aide working with very young
children. See 42 U.S.C. § 2000e‐2(e)(1).
Before he was fired, the plaintiff’s annual performance evaluations all had been
satisfactory, including the last in November 2009. The only reprimand documented in
his employment file was for wearing open‐toed shoes on April 5, 2010. The plaintiff
does not dispute, however, that a family quarrel involving custody of his teenage
nephew had been brewing for several years before he was fired. The nephew was not
living at home, and the plaintiff had supported his sister’s effort to regain custody of
her son. The plaintiff’s mother, Jackie Smizer, opposed that outcome, as did his
grandmother, Rosemary Wooley, a volunteer at the Center. On April 8, 2010, a state
judge awarded custody to the boy’s mother, and that night a former Center employee,
Lynetta Hall, sent an e‐mail to the plaintiff’s nephew with this message:
Lawrence Dontyoujudgeme Smizer To all my family that fought my
sister tooth and nail over some BULLSHIT (And you know who you
are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE
BELONGS!!!!!
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHHAHAH
HAAH
The next morning, Jackie Smizer sent an e‐mail to Michael Devine, the chairman of the
Center’s board of directors, asserting that the plaintiff had posted on Facebook “about
his damned family & that’s what we get for f***ing with his sister and other horrible
No. 13‐1828 Page 3
stuff.” Jackie expressed concern that other employees would have seen the alleged post,
and she added that “Lynetta even sent it” to her grandson, who had opposed being
returned to his mother.
Three days later, Jackie wrote a memo to Devine explaining that she and Wooley,
the plaintiff’s grandmother, no longer felt safe in the plaintiff’s presence. She asked that
he be fired for “creating a hostile work environment” and for “pulling staff into this
family drama.” Jackie asserted that her grandson had telephoned her, upset, after
receiving the e‐mail sent by Lynetta Hall. The plaintiff, she continued, had “never been
the ideal employee,” though as his mother she had been unwilling to see anything but
good. But now, Jackie said, she had “set about gathering the evidence to dismiss him.”
The plaintiff, she reported, “came in late, left early, used center equipment and
computers without permission and reportedly slept on the job.” And, she added, the
plaintiff had grown “defiant” in the previous six months, and while at the Center had
“got into an argument” with Wooley prompting another employee to intervene “to
make sure that Larry didn’t hit his 78 year old grandmother.”
On April 15, 2010, Devine hand‐delivered to the plaintiff a two‐line letter
informing him that he was fired “for insubordination and unprofessional conduct.”
Devine told the plaintiff that “the Facebook posting” was the basis for his dismissal.
In his complaint the plaintiff alleged that, in the two weeks after he was
reprimanded, four women wore open‐toed shoes but were not disciplined. He also
alleged that, while he was on vacation in December 2009, Chairman Devine reportedly
had found pornography on a shared computer at the Center, and Jackie Smizer had
accused the plaintiff of downloading the files because, she said, “Women don’t like
porn.” This is the extent of his explanation for suspecting sex discrimination; the rest of
his complaint concerned the defamation claim.
In moving for summary judgment, the Center asserted that Chairman Devine
had discharged the plaintiff after consulting with Jackie Smizer and the plaintiff’s
immediate supervisor, Cathy Bijou. The Center reached back as far as 2002 to identify
performance issues, including that sometimes the plaintiff left food remnants in his
classroom, he did not always punch the clock when he arrived at the Center, and on
more than one occasion he was seen by Bijou or the office manager viewing
pornography on a Center computer. But the Center conceded that, as of his most‐recent
evaluation, the plaintiff’s classroom performance had been “generally good to very
good,” and the accumulating list of problems with him had not justified his dismissal.
No. 13‐1828 Page 4
Instead, the Center maintained, he was fired because of the “Facebook posting” he
“directed at” Jackie Smizer and Wolley. By “posting” the Center means the text of the
e‐mail Lynetta Hall sent to the plaintiff’s nephew; the Center did not produce a screen
shot of the post or any Facebook record of its existence. Neither did the Center submit
evidence from Hall that what she wrote in her e‐mail was from the plaintiff’s Facebook
page. The Center instead offered affidavits from Bijou, her daughter, and the office
manager all saying that they personally had viewed the plaintiff’s Facebook page and
seen, in substance, the first sentence of the alleged post as reproduced in Hall’s e‐mail.
The office manager elaborated that she had read the post on April 9 when she noticed
that the plaintiff’s Facebook page was open on a Center computer. The Center rounded
out its presentation with a list of ten employees fired over the years—nine of them
women, including Lynetta Hall—along with the assertion that no female employee ever
had “posted derogatory messages on the internet” targeting the Center’s management.
In a memorandum, the plaintiff responded by asserting that, in the year before
he was fired, reductions in state funding that had subsidized the childcare expenses of
many families with children at the Center had forced management to seek increased
enrollment, and Jackie Smizer had told him that his gender was costing the Center
money because four times prospective clients had declined to enroll their two‐year‐old
daughters after realizing that the girls would be supervised by the plaintiff. Those
parents had expressed discomfort with a male employee supervising children who were
not yet toilet trained, and, according to the plaintiff, Jackie even had said that Chairman
Devine called him a “liability.”
Yet none of this made it into the plaintiff’s response to the Center’s statement of
material facts, or into his own statement of material facts. See N.D. ILL L. R. 56.1. Instead,
the plaintiff denied writing the alleged Facebook post, and he pointed out that the
Center had not been able to produce anything more than Hall’s e‐mail to his nephew
and affidavits from Bijou and the two other women who say they read a post similar to
Hall’s e‐mail while looking at what they believed to be the plaintiff’s Facebook page.
The plaintiff also denied viewing pornography at the Center and asserted that four
female employees had not been fired for misconduct akin to his asserted issue with
keeping accurate attendance records.
The district court concluded that the plaintiff did not have direct evidence of sex
discrimination, and that he lacked circumstantial evidence sufficient to survive
summary judgment under either the direct or indirect methods of proof. As to both
methods, the court reasoned, the plaintiff lacked proof that similarly situated female
No. 13‐1828 Page 5
employees had been treated more favorably because none of his proposed comparators
had written offensive comments about coworkers on a social media site. The court also
concluded that the plaintiff lacked evidence from which a jury could find that the
Center’s stated reason for terminating his employment—the alleged Facebook
post—was pretextual. We review de novo the district court’s decision and construe all
facts and reasonable inferences in favor of the plaintiff. See Phelan v. Cook County, 463
F.3d 773, 778 (7th Cir. 2006).
On appeal the plaintiff repeats his assertion that a concern about lost revenue
was the Center’s real reason for firing him, and that his alleged Facebook post was
cover for discrimination. The Center responds that its belief that he posted disparaging
remarks about coworkers is undisputed, and that the post was a legitimate,
nondiscriminatory reason for terminating his employment. The plaintiff’s
discrimination claim comes down to whether he submitted enough evidence to show
that the Center’s reason was pretext, and he did not. Although the outcome might well
have been different if the plaintiff had introduced evidence to substantiate his
accusation that Jackie Smizer and Chairman Devine had labeled him a liability because
of his sex, he passed over the opportunity at summary judgment.
To show that the Center’s reason was pretext, the plaintiff needed to demonstrate
weaknesses, implausibilities, or inconsistencies in the Center’s stated reason for firing
him. See Coleman v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012). Even if the Center’s reason
was not a good one, that is irrelevant if the Center honestly believed that the plaintiff
wrote the post. See id. at 853. The plaintiff’s opposition focused mostly on his denial that
he wrote the alleged Facebook post, and he never submitted evidence showing that his
mother or the chairmen did not honestly believe he wrote the text printed in the e‐mail
originating from Lynetta Hall. The plaintiff points out that the Center has been unable
to produce an image of the Facebook post, that none of the witnesses who claim they
saw it printed it, and that there are inconsistencies in the affidavits of the various
witnesses who claim they saw the post. All of this might be significant if the Center’s
defense turned on its ability to prove that the alleged post actually was made or that the
plaintiff made it, but it does not. The plaintiff does not dispute that Jackie Smizer
received an e‐mail from his nephew containing text that Jackie believed the plaintiff
wrote on Facebook. Nor does he dispute that Jackie sent an e‐mail to Chairman Devine
describing the text, or that Jackie wrote a memo to Devine a few days before he was
fired, again describing the text, and requesting that the plaintiff be dismissed. The
plaintiff did not present sufficient evidence in his Local Rule 56.1 opposition to show
that Jackie and Chairman Devine did not honestly believe that he wrote a disparaging
post on Facebook, and thus summary judgment was properly granted for the Center.
AFFIRMED.