NONPRECEDENTIAL DISPOSITION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 September 26, 2013*
Decided September 26, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD D. CUDAHY, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐1614
MARIA HERRERA, Appeal from the United States
Plaintiff‐Appellant, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 11 C 5762
ILLINOIS BELL TELEPHONE
COMPANY, Virginia M. Kendall,
Defendant‐Appellee. Judge.
O R D E R
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 13‐1614 Page 2
Maria Herrera, a former customer‐service representative at the Illinois Bell
Telephone Company, appeals the grant of summary judgment against her in this suit
asserting that she was fired because of a disability (depression and anxiety) in violation
of the Americans with Disabilities Act, see 42 U.S.C. § 12112(a), and in retaliation for
taking leave under the Family and Medical Leave Act, see 29 U.S.C. § 2615(a)(2). We
affirm.
Herrera suffered from depression and anxiety throughout the nine years (2000‐
2009) that she worked for Illinois Bell as a customer‐service representative at one of its
call centers, but these conditions worsened in 2008, forcing her frequently to take FMLA
leave, see 29 U.S.C. § 2612(a)(1)(D), and harming her job performance. Illinois Bell fired
her, a decision she regards as discriminatory because the company implemented it in
the midst of one particular FMLA leave despite knowing of her mental condition.
Herrera cites the comments of supervisors who embarrassed her in front of coworkers
when they remarked about her “turning red” and sporting a “long face,” or sarcastically
asked if she needed to cry in the bathroom.
Illinois Bell, in contrast, asserted that it decided to fire Herrera solely because of
her sustained, unsatisfactory performance. Every month Illinois Bell evaluated its
employees’ performance and assigned Performance Achievement Review (PAR) scores.
If employees received deficient PAR scores, Bell Telephone used a three‐step
progressive disciplinary policy: (1) a written warning, (2) a final written warning with a
one‐day suspension, and (3) suspension pending termination. An unsatisfactory PAR
score for a given month, however, could be excused by a call center’s manager through
the issuance of an SR‐30, which prevents progression to the next disciplinary step.
Ultimately Herrera received deficient PAR scores for nine of the twelve months
between November 2008 and October 2009. (She was not suspended after her third
month of deficient performance because she was granted two SR‐30s and the second
disciplinary step, final written warning, was repeated four times). Illinois Bell fired
Herrera after calculating her ninth deficient PAR score.
The district court granted summary judgment for Illinois Bell, concluding that
Herrera could not establish a prima facie case of disability discrimination or FMLA
retaliation under the either the direct or indirect method of proof. Under the direct
method, the court found nothing suspicious about the timing of Illinois Bell’s decision
to fire her after months of unsatisfactory performance, and reasoned that the “crass and
insensitive” remarks described by Herrera did not show discriminatory intent because
they were not made by individuals with the authority to fire her. With regard to the
indirect method, the court concluded that not only did Herrera’s deficient PAR scores
No. 13‐1614 Page 3
show that she was not meeting Illinois Bell’s legitimate expectations, but she also failed
to identify any similarly situated employees who had been treated more favorably.
(Although Herrera named five individuals whom she considered similarly situated, she
did not provide sufficient evidence to permit a “meaningful comparison” because she
did not provide their PAR scores, or specify whether they had received SR‐30s or been
allowed to repeat steps in the disciplinary process.)
On appeal Herrera challenges only the district court’s conclusion that she did not
present sufficient evidence of similarly situated employees to survive summary
judgment under the indirect method. She names three customer‐service representatives
(two of the five mentioned earlier plus a new individual) whom, she asserts, were not
fired by Illinois Bell despite earning PAR scores comparable to hers, and she attaches
records reflecting that, for at least a few months, two of the employees also earned
deficient PAR scores.
At the outset we note that Herrera may not rely on these records because she did
not present them first to the district court. See Domka v. Portage Cnty., Wis., 523 F.3d 776,
783 (7th Cir. 2008); United States v. Banks, 405 F.3d 559, 567 (7th Cir. 2005). But in any
event, Herrera cannot demonstrate that the employees she identifies as similarly
situated are outside her protected class for either of her two claims; she presented no
evidence about whether they are disabled, and admits in her brief that two of the
employees either requested or took FMLA leave. Nor does the evidence reflect how
many deficient PAR scores these employees earned, or whether they earned those
scores over a similar period of time; Herrera therefore has not shown that their
performance was the “functional equivalent” of her own, Gates v. Caterpillar, Inc., 513
F.3d 680, 690–91 (7th Cir. 2008), or that they “at least share[d] a comparable set of
failings,” Harris v. Warrick Cnty. Sheriffʹs Depʹt, 666 F.3d 444, 449 (7th Cir. 2012) (internal
citation and quotation marks omitted).
Herrera also contends for the first time on appeal that Illinois Bell (1) retaliated
against her for taking FMLA leave by denying her several promotions in the years
before the events of 2008 and 2009, and (2) failed to accommodate her disability. But she
waived those arguments by not presenting them to the district court. See Anderson v.
Donahoe, 699 F.3d 989, 997 (7th Cir. 2012); Domka, 523 F.3d 776, 783 (7th Cir. 2008).
AFFIRMED.