In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2254
WESLEY GAMBLE,
Plaintiff-Appellant,
v.
FCA US LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-4520 — Virginia M. Kendall, Judge.
____________________
SUBMITTED MARCH 2, 2021* — DECIDED APRIL 8, 2021
____________________
Before RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. Wesley Gamble was fired by Fiat
Chrysler Automobiles (FCA) in October 2017 for violating
FCA’s anti-harassment policy for a second time. Asserting
* We have agreed to decide this case without oral argument because the
facts and legal arguments are adequately presented in the briefs and rec-
ord, and the decisional process would not be significantly aided by oral
argument. See FED. R. APP. P. 34(a)(2)(C).
2 No. 20-2254
that he was treated unfairly during FCA’s investigation, and
ultimately fired, due to his race (he is African American), age
(he was 63), and disability (he had battled lymph node can-
cer), Gamble sued FCA for employment discrimination. The
district court entered summary judgment for FCA. Gamble
appeals the judgment only with respect to his race discrimi-
nation claim. Because no reasonable jury could infer that
Gamble was treated less favorably than a similarly situated
employee outside of his protected class, we affirm the judg-
ment of the district court.
I
Gamble began working at FCA’s Belvidere, Illinois, as-
sembly plant in July 2015. During onboarding (and again later
in his employment), he received a copy of FCA’s anti-discrim-
ination and harassment policy, titled Policy 3-6. Policy 3-6
provided that where allegations arose related to sexual har-
assment, an internal investigation could be conducted and,
based on the findings of that investigation, the company
could take appropriate disciplinary action, including termina-
tion.
In October 2015, two female employees complained that
Gamble had sexually harassed them by making inappropriate
comments toward them. After interviewing several wit-
nesses, Kelly Pollard, a human resources manager, concluded
that Gamble had violated FCA’s anti-harassment policy and
issued him a written warning. He acknowledged the warning
and attended remedial training, though he disputed the har-
assing nature of his comments.
In August 2017, Gamble’s supervisor reported that he had
witnessed Gamble acting inappropriately toward a female
No. 20-2254 3
who reported to Gamble. Pollard initiated another investiga-
tion and interviewed Gamble’s supervisor (the witness), the
alleged victim of the conduct, and two other women who
worked with Gamble and the alleged victim. The alleged vic-
tim corroborated the supervisor’s story. Separately, one of the
other women also complained during her interview that
Gamble had acted inappropriately toward her as well. For his
part, Gamble suggested that Pollard interview certain other
employees and claimed that he was the target of a conspiracy
by his coworkers, who wanted to get him fired. A different
human resources employee interviewed one of the five indi-
viduals that Gamble suggested be interviewed.
On October 11, 2017, Gamble was called into a meeting
with his supervisor and Pollard. Pollard informed Gamble
that he was being terminated because of a second violation of
Policy 3-6.
Nine months later, Gamble filed this lawsuit, asserting
that FCA discharged him based on his race, age, and disability
in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e; 42 U.S.C. § 1981; Title I of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12112; and the Age
Discrimination in Employment Act of 1967 (ADEA), 29
U.S.C.A. §§ 621–34.1 Later, he filed a second lawsuit against
1 As noted, Gamble only appeals the district court’s grant of summary
judgment on his race discrimination claim related to the investigation and
termination for the violations of Policy 3-6. As relevant to his other claims,
since abandoned, Gamble received a negative performance review in late
2016 (for which he completed a performance improvement plan) and bat-
tled lymph node cancer in 2017, which caused some lingering effects when
he ultimately returned to work.
4 No. 20-2254
several FCA employees, including Pollard, asserting that they
had conspired to get him fired.
FCA eventually moved for summary judgment in this suit,
contending that Gamble could neither make a prima facie
case of race, age, or disability discrimination, nor prove that
the reason for his termination was a pretext. Gamble opposed
summary judgment only on the Title VII race discrimination
claim (expressly abandoning the other claims).
While that motion was pending, FCA moved to reassign
Gamble’s second suit under Local Rule 40.4 of the Northern
District of Illinois. This rule permits reassignment of a later-
filed civil case before one district judge if it concerns the same
property, issues of fact or law, or transaction or occurrence as
a case already before another judge. If none of these condi-
tions is met, the court may still reassign a case if doing so
would conserve judicial resources, would not substantially
delay the earlier case, and if the cases may be disposed of in a
single proceeding. Noting the overlap between the two com-
plaints, Judge Kendall granted the motion to reassign the sec-
ond case to her because they concerned the same events.
Gamble voluntarily dismissed the second lawsuit—which
had not been consolidated with the first—two months later.
Notice of Voluntary Dismissal at 1, Gamble v. Smithson, No. 19-
cv-06196 (N.D. Ill. Feb. 19, 2020).
In March 2020, the district court entered summary judg-
ment in favor of FCA on all claims. Gamble had abandoned
his claims under the ADEA and ADA, it observed, and his
claim for race discrimination under § 1981 was time-barred by
a provision in his employment contract.
No. 20-2254 5
As for the Title VII race discrimination claim, the court
acknowledged that Gamble was a member of a protected
class, was meeting his employer’s legitimate expectations,
and suffered an adverse employment action when he was
fired. But he lacked any evidence that FCA treated similarly
situated, non-African American employees more favorably.
Though Gamble contended that “multiple non-black salaried
employees” had been accused of violating the anti-harass-
ment policy but were not discharged, the court determined
that, under Federal Rule of Civil Procedure 32(a)(8), it could
not consider one deposition transcript he cited as support.
FED. R. CIV. P. 56(c)(1)(A). His only other proposed compara-
tor was a white employee whom the court did not consider
suitable because no evidence showed that he was found to be
a repeat offender like Gamble. Further, there was no evidence
FCA had given a pretextual reason for firing him. Therefore,
the court concluded that no reasonable jury could find that
FCA had discriminated against Gamble based on race. It also
denied his motion for reconsideration, and he now appeals.
II
On appeal, Gamble argues that he presented sufficient ev-
idence of discrimination to defeat summary judgment on his
Title VII claim. We review the district court’s ruling de novo.
Tyburski v. City of Chicago, 964 F.3d 590, 597 (7th Cir. 2020). He
also contends that the reassignment of his second lawsuit was
improper. If that issue is properly before us (which FCA con-
tests), we would review the decision for abuse of discretion.
See Pettitt v. Boeing Co., 606 F.3d 340, 344 n.5 (7th Cir. 2010)
(referring to ruling on “Rule 40.4 motion” as “discretionary”).
6 No. 20-2254
A
Gamble has chosen to proceed under the familiar burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), which is one of the ways to prove Title VII
employment discrimination. Igasaki v. Illinois Dep't of Fin. &
Pro. Regul., 988 F.3d 948, 957 (7th Cir. 2021). That approach
“requires a plaintiff to make a prima facie case of discrimina-
tion, at which point the burden shifts to the employer to offer
a nondiscriminatory motive, and if the employer does so, the
burden shifts back to the plaintiff to show that the employer’s
stated reason was a pretext.” Id. (internal quotation omitted).
To make a prima facie case, Gamble must show: “(1) he be-
longs to a protected class; (2) he met his employer’s legitimate
expectations; (3) he suffered an adverse employment action;
and (4) another similarly situated employee outside of his
protected class received better treatment from his employer.”
Id. The parties have agreed that Gamble is a member of a pro-
tected class, that he was meeting FCA’s employment expecta-
tions, and that he suffered an adverse employment action. 2
The analysis of Gamble’s claim thus centers on whether he
has provided evidence that he was treated less favorably than
2 On this last point, Gamble offers a somewhat muddled picture as to what
“adverse employment action” he challenges. Specifically, much of his
briefing deals with what he asserts was a racially-biased investigation into
his conduct, though he does not argue that the investigation itself was an
adverse employment action. It appears that Gamble argues that any racial
bias in the investigation would be evidence of discrimination as to his ter-
mination, which undoubtedly constitutes an adverse employment action.
See Levy v. Wilkie, No. 20-1877, 2021 WL 56708, at *4 (7th Cir. Jan. 7, 2021).
No. 20-2254 7
a similarly-situated FCA employee outside of his protected
class. The district court held that Gamble failed to do so.
On appeal, Gamble argues that the district court’s ruling
was predicated on the erroneous exclusion of the deposition
testimony of William Findlay, FCA’s human resources direc-
tor, taken in Liner v. FCA, a later, unrelated employment dis-
crimination case. No. 18-cv-06163 (N.D. Ill. filed Sept. 10,
2018). Gamble also argues that the district court improperly
weighed the evidence and failed to draw inferences in his fa-
vor. The district court correctly concluded that Gamble had
failed to present a prima facie case.
We first deal with Gamble’s argument that the district
court improperly excluded Findlay’s deposition testimony.
Gamble asserts that Findlay testified in a different case that
Policy 3-6 requires witness statements to be signed. From that
testimony, Gamble argues that he was treated less favorably
than non-minority employees because the witness statements
in his investigation were not signed. It is undisputed that the
witness statements in the investigation that led to Gamble’s
termination were not signed, but Gamble’s description of
Findlay’s testimony is not quite accurate. In his deposition
testimony, Findlay describes in abstract terms what “may”
occur during an internal investigation and includes one line
stating that witnesses would sign their statements. Gamble
further asserts that Pollard lied when she testified that she re-
viewed signed statements. Without explanation, Gamble
boldly concludes that Pollard’s alleged lie is evidence that he
was treated differently due to his race, but entirely fails to
show how Pollard’s testimony (or, for that matter, the pur-
ported signature requirement) had anything to do with race.
8 No. 20-2254
The district court held that it could not consider the
Findlay deposition because the subject matter and the parties
were not the same in the two cases and because Gamble had
not offered an alternative basis for the admissibility of the tes-
timony, citing to FED. R. CIV. P. 32(a)(8). Rule 32(a)(8) permits
previous deposition testimony to be used at the summary
judgment stage of a later action if (1) the later action involved
the same subject matter between the same parties, or their
representatives or successors in interest, or (2) as allowed by
the Federal Rules of Evidence. FED. R. CIV. P. 32(a)(8). As we
have explained, where the litigation does not involve the
same parties and subject matter, deposition testimony can be
admitted at summary judgment if (1) the deposition satisfies
Rule 56’s affidavit requirements and (2) the deposition has
been made part of the record in the case before the court. Al-
exander v. Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014);
see also 8A C. Wright, A. Miller, & R. Marcus, Federal Practice
& Procedure § 2142 & n.19, at 634 (2010) (for summary judg-
ment practice: “A deposition is at least as good as an affidavit
and should be usable whenever an affidavit would be permis-
sible, even though the conditions of the rule [32(a)(8)] on use
of a deposition at trial are not satisfied.”). But, even if the dis-
trict court had considered the deposition testimony consistent
with Alexander, Gamble’s argument fails nonetheless.
Gamble boldly asserts on appeal that Findlay’s deposition
testimony unequivocally showed that Policy 3-6 required wit-
ness statements to be signed. It does not do that, and, further-
more, it does not address the issue of whether Gamble was
treated differently in the course of the investigation because
of his race. Instead, the omitted testimony discusses general
procedures that “may” happen in the course of an investiga-
tion. The bareboned, non-specific testimony regarding a
No. 20-2254 9
possible signature requirement offers no basis to draw an in-
ference of racial bias against Gamble, contrary to his conclu-
sory assertions. As such, even if the district court had consid-
ered this testimony, it does nothing to change the calculus of
whether Gamble made out a prima facie case of race discrim-
ination.
Next, Gamble cited to one alleged comparator in his at-
tempt to make out his prima facie case. But Gamble failed to
identify someone who was subject to the same performance
standards and engaged in misconduct of “comparable seri-
ousness.” de Lima Silva v. Dep't of Corr., 917 F.3d 546, 559 (7th
Cir. 2019). As the district court explained, the one comparator
in the record (for whom Gamble supplied relevant evidence)
was not similarly situated: Although FCA did not discharge a
white employee who had violated the same anti-harassment
policy as Gamble, the record did not show that this employee
had violated the policy twice, as Gamble had. See Abrego v.
Wilkie, 907 F.3d 1004, 1013–14 (7th Cir. 2018). Gamble was not
discharged after his first violation, so the distinction mattered.
Further, there was no evidence about whether the proposed
comparator had harassed multiple victims in front of eyewit-
nesses. On appeal, Gamble does not dispute the distinctions
the court focused on or argue that they are unimportant.
Lastly, Gamble makes a brief argument that the district
court improperly supplanted the jury’s role by weighing evi-
dence. Gamble, however, mischaracterizes the district court’s
handling of the evidence proffered. Specifically, Gamble ar-
gues that the district court “admitted” that it was weighing
evidence related to how unsigned witness statements should
be viewed in the record. As noted above, Gamble argued that
this was evidence of his being subjected to a different
10 No. 20-2254
investigatory standard than other FCA employees. The judge,
in considering whether these statements were admissible for
purposes of summary judgment, stated that Gamble’s objec-
tion to the witness and victim statements taken during FCA’s
investigations into his conduct did not undermine their ad-
missibility; rather this omission was relevant “to the weight
of the evidence.” The court was simply explaining why it al-
lowed the statements into the summary judgment record
(which may contain only material “admissible in evidence,”
see FED. R. CIV. P. 56(2)). This is not an “admission” by the dis-
trict court that it was weighing the evidence itself. Further-
more, it is clear from the district court’s order that it did not
weigh evidence but rather determined what evidence could
properly be considered on summary judgment and then drew
conclusions based on the record.
Gamble failed to present sufficient evidence to make a
prima facie claim of race discrimination. Because he did not
make a prima facie case, we need not address whether FCA’s
stated reason for his termination was pretext for discrimina-
tion.
B
Finally, Gamble argues that the district judge erred in
granting the motion under Local Rule 40.4 to have his second
lawsuit reassigned. Citing only the minute entry granting the
motion, Gamble faults the judge for providing no reasoning
and not applying all the requirements for reassignment in the
rule. He also complains that the judge ruled on the motion in
the absence of Gamble’s counsel (who was in another
No. 20-2254 11
courtroom when the case was called) and cites that as evi-
dence of animus toward the attorney.
The hearing transcript demonstrates that the district court
did give reasons, albeit briefly, for accepting the reassign-
ment. But it does not matter either way, because the argument
about reassignment is not properly before us. Gamble volun-
tarily dismissed the reassigned case after the defendants
moved for sanctions under Federal Rule of Civil Procedure
11. Notice of Voluntary Dismissal at 1, Gamble v. Smithson, No.
19-cv-06196 (N.D. Ill. Feb. 19, 2020). Gamble is not aggrieved
by his own voluntary action, and there is no possible relief we
could give him now that the case is dismissed. See United
States v. Procter & Gamble Co., 356 U.S. 677, 680 (1958); Geaney
v. Carlson, 776 F.2d 140, 141–42 (7th Cir. 1985) (voluntarily dis-
missed case not appealable because it is not an involuntary
adverse judgment). Therefore, we do not consider the argu-
ment.
AFFIRMED