*

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 15, 2007*

Decided August 16, 2007

Before

Hon. JOHN L. COFFEY, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge

No. 07-1738

GAJENDRA SINGH,

 Plaintiff-Appellant,

v.

HOLY CROSS HOSPITAL,

Defendant-Appellee.

Appeal from the United States

District Court for the Northern

District of Illinois, Eastern Division

No. 05 C 3854 

Virginia M. Kendall, 

Judge.

O R D E R

Gajendra Singh claims that he was the victim of discrimination and several

state-law torts during his brief employment at Holy Cross Hospital. His suit

against the hospital was dismissed at summary judgment, and he appeals. We

affirm in part and vacate and remand in part. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-1738 Page 2

Singh moved to the United States in 2002 after receiving a medical degree in

his native India. In January 2004 he was hired by Holy Cross as a part-time

surgical assistant. He resigned that job in May 2004, and after exhausting his

administrative remedies, he sued Holy Cross under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1981 claiming that he was

passed over for promotion to a full-time position and denied additional hours for

emergency calls because he is Indian. According to Singh, both the full-time

position and the emergency hours went to white American citizens.

After completing discovery both parties moved for summary judgment. In

support of its motion, Holy Cross offered the declaration of Singh’s direct

supervisor, Ruth Zych, along with Singh’s deposition testimony and documentary

evidence including his performance review. That evidence showed that almost

immediately after Singh was hired his coworkers raised concerns about his

performance. On Singh’s first day Edguardo Arzadon—the employee charged with

overseeing his training—told Zych that Singh lacked initiative and was unfamiliar

with sterility techniques critical to his job duties. Several surgical technicians also

raised concerns about Singh’s performance during his first week. Arzadon again

told Zych in March that Singh did not have the experience required to do his job

effectively. Shortly thereafter, during a routine review of Singh’s performance,

Arzadon and other coworkers criticized his work, initiative, and attitude. In

particular, Arzadon recommended that Zych not assign Singh additional

responsibilities if better candidates could be found. Additionally, it was noted

during the review process that Singh had failed to complete a checklist of tasks that

all new surgical assistants must perform during orientation to show proficiency in

the skills and procedures required to carry out their duties.

The hospital’s evidence also showed that Singh applied in March 2004 to fill a

vacancy for a full-time surgical assistant. Zych decided to offer Singh the

opportunity to share the position with an external candidate, Jack Adesso. Zych

intended to evaluate how each performed and then assign additional hours to the

more qualified. Singh rejected this offer, so Zych gave the position to Adesso, whom

she deemed more qualified anyway because he had 31 years’ experience as a

surgical assistant, including four years as the chief surgical assistant at a hospital

in Virginia. 

Finally, the evidence that Holy Cross put forward established that in May

2004, shortly before he quit, Singh repeatedly requested that Zych assign him some

of the extra hours arising from emergency surgeries. Zych declined, however,

because of Singh’s performance issues and her uncertainly that he could work

independently as these additional hours required. Zych also told Singh that he

could not take emergency calls unless he completed his orientation checklist, which

he never did. The record is unclear as to whether any other surgical assistants
No. 07-1738 Page 3

took calls during this time. However some of the emergency calls required the

assistance of a surgical technician, a position that typically involves fewer

responsibilities in the operating room than that of a surgical assistant, and Zych

gave these calls to a qualified technician. 

In his own motion for summary judgment, Singh argued that he had

established a prima facie case of discrimination under the indirect method. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). But he put forward

little evidence to contradict the hospital’s evidence that he was not qualified for the

roles he sought. Singh essentially pointed to one positive comment submitted by a

colleague during his performance review and a certificate showing that he received

a surgical degree in India. 

Singh also argued, however, that his evidence supported other state-law

claims not identified in his complaint. Principal among them was a claim for

negligence. Singh introduced interrogatory responses in which Holy Cross admitted

that in April 2004 he was stuck by a needle that another employee failed to discard

after it was used to administer a local anesthetic to a patient suffering from HIV

and hepatitis. Singh had mentioned this incident in his complaint, and during his

deposition he stated that it accounted for a portion of his requested damages. As for

the other state claims, though, Singh introduced no relevant evidence. 

The district court granted the hospital’s motion for summary judgment and

denied Singh’s motion. The court analyzed the discrimination claims under the

indirect method of proof, see Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538 (7th

Cir. 2007) (explaining that indirect method of McDonnell Douglas applies equally to

claims under Title VII and § 1981), and concluded, based on the undisputed

evidence, that Singh was not performing up to the hospital’s legitimate

expectations, that he was not similarly situated to the individuals given the fulltime position and emergency calls, and that he could not prove that the reasons

given by Holy Cross for passing him over in both instances—his performance issues,

relative inexperience, inability to work independently, and poor attitude—were

pretextual. The court declined, however, to address Singh’s state-law claims

because he did not include them in his complaint or seek to amend it. Our review is

de novo, Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 719 (7th Cir. 2005), and

like the district court we evaluate the evidence using the indirect method because

that was the sole method advocated by Singh at summary judgment, see Burks v.

Wisconsin Dept. of Transp., 464 F.3d 744, 751 n.3 (7th Cir. 2006). 

We reject Singh’s contention that the district court erred in granting

summary judgment for Holy Cross. To make out his prima facie case, Singh was

required to put forward evidence establishing, among other things, that he was

qualified for the positions he was denied. See Koszola v. Bd. of Educ. of City of Chi.,
No. 07-1738 Page 4

385 F.3d 1104, 1110 (7th Cir. 2004). And Singh did not meet this burden. As

evidenced by Zych’s declaration and Singh’s performance review, he was not

performing adequately as a part-time surgical assistant, and that was reason

enough for the hospital to conclude that he should not be made full-time or given

the added responsibilities associated with taking emergency calls. The only

evidence Singh supplied to show that he was qualified was his medical degree from

India and the single positive comment from a coworker during his evaluation, but

that evidence was not enough to establish a genuine issue given that he had no

prior experience as a surgical assistant and that the vast majority of comments

about his performance were negative. And, because Singh did not show that he

was qualified for the roles he wanted, we need not address his arguments that he

was similarly situated to the persons selected or that the hospital’s explanations for

its decisions were pretextual. See Bio v. Fed. Express Corp., 424 F.3d 593, 596 (7th

Cir. 2005). 

On the other hand, we do agree with Singh that the district court should

have addressed his state-law claims. At the hospital’s urging, the court concluded

at summary judgment that the state claims were not part of the case because Singh

never explicitly identified those claims in his complaint and never sought to amend. 

But we have held that any issue that is “(pre)tried by implied consent of the parties”

is properly before the district court on a motion for summary judgment, regardless

whether the complaint was amended to include it. Torry v. Northrop Grumman

Corp., 399 F.3d 876, 879 (7th Cir. 2005). With one exception, though, Singh’s statelaw claims are frivolous, so it makes no difference that the district court did not

reach them.

The exception, however, is Singh’s claim that Holy Cross is liable for injuries

he sustained after he was pricked by a needle that was used on a patient with HIV

and hepatitis. Like the defendant in Torry, Holy Cross without objection engaged in

discovery on that additional claim; the hospital answered Singh’s interrogatories

about the incident and raised the matter itself during his deposition. See Torry, 399

F.3d at 879. We thus agree with Singh that this claim was before the district court

because Holy Cross impliedly consented to litigate it. Still, because it is a claim of

negligence under Illinois law, the district court, in its discretion, could have

declined to exercise supplemental jurisdiction over the claim, see 28 U.S.C.

§ 1367(a); Sellars v. City of Gary, 453 F.3d 848, 852 (7th Cir. 2006), especially once

the federal claims were dismissed, see 28 U.S.C. § 1367(c)(3); Christensen v. County

of Boone, 483 F.3d 454, 466 (7th Cir. 2007); Bilow v. Much Shelist Freed Denberg

Ament & Rubenstein, P.C., 277 F.3d 882, 896 (7th Cir. 2001). But we must remand

so that the district court can make this determination. If the court declines to

exercise jurisdiction, Singh will have 30 days to refile this claim in state court. See

28 U.S.C. § 1367(d).
No. 07-1738 Page 5

Accordingly, we VACATE the dismissal of Singh’s claim of negligence under

state law, and REMAND for further proceedings solely as to that claim. In all other

respects the judgment of the district court is AFFIRMED.