# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 29, 2018 *

Decided June 29, 2018

Before

DIANE P. WOOD, Chief Judge

MICHAEL S. KANNE, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 17

‐ 3367

CHRISTOPHER W. FILLMORE,

Plaintiff

‐ Appellant

,

v

.

INDIANA BELL TELEPHONE

COMPANY, INCORPORATED,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:16

‐ cv

‐ 323

‐ SEB

‐ DML

Sarah Evans Barker,

J udge

.

O R D E R

Christopher Fillmore filed suit against his former employer, Indiana Bell,

alleging that he was fired in retaliation for complaining about race discrimination,

among other things. The district court entered summary judgment for the employer

because Fillmore lacked evidence that he had complained of discrimination. We affirm.

* We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 3367 Page 2

Indiana Bell fired Fillmore after he had worked there for about seven years as an

installation and repair technician. Before he was fired, Fillmore had been disciplined for

failing to run quality checks, seal grommet holes, or properly ground network

‐ interface

devices. Finally, in March 2015, Indiana Bell fired Fillmore for improperly using an

Ethernet adapter.

Fillmore then sued Indiana Bell, alleging that his immediate supervisor,

Thomas Koepp, discriminated against him because of his race by disciplining him. He

also alleged that Koepp retaliated against him with more discipline after Fillmore filed

grievances about Koepp’s conduct. Further, Fillmore alleged, Koepp’s supervisor, Lisa

Brantley, retaliated against him by pushing for his termination. In January 2015, he said,

he attempted to complain to Brantley about his belief that Koepp was singling him out

for punishment because of his race. But an agitated Brantley hastily ejected him from

her office before he could fully articulate his concern, and she later attended the

meetings with upper management that led to his firing.

After filing his complaint, Fillmore moved for court

‐ recruited counsel,

see 28 U.S.C. § 1915(e). A magistrate judge denied his motion, concluding that Fillmore

was competent to litigate his claims based on his “organized and detailed” filings and

his ability to coherently present facts and argument.

Both parties moved for summary judgment, but the evidence they submitted was

sparse. In particular, neither party submitted admissible evidence about the substance

of the meeting between Fillmore and Brantley. But two months after the deadline for

dispositive motions, Fillmore moved to supplement the record with a declaration

asserting that he had met with Brantley to report his concerns about Koepp’s purported

race discrimination. He attests: “Among other things, my conversation indicated that

‘certain managers’ (chief among them, Koepp) demonstrated a disparate enforcement of

the rules, which caused ‘certain technicians’ to suffer.” The magistrate judge rejected

this declaration because it was untimely and therefore it would be unfair to Indiana Bell

to add it to the record at that point.

The district judge then entered summary judgment for Indiana Bell. First the

judge concluded that Fillmore’s claims were untimely under Title VII of the Civil Rights

Act of 1964. Next, the judge considered Fillmore’s claims of discrimination and

retaliation through the lens of 42 U.S.C. § 1981. As for retaliation by Brantley, the judge

observed that neither side had submitted evidence about the content of the meeting

between Fillmore and Brantley, so there was no proof that Fillmore had reportedNo. 17

‐ 3367 Page 3

discrimination to her. Thus Fillmore could not show that he engaged in any protected

activity. And as for Fillmore’s claims against Koepp, the judge concluded that Fillmore

had supplied no evidence that Koepp had disciplined him with discriminatory or

retaliatory intent.

Fillmore moved for relief from the judgment under Federal Rule of Civil

Procedure 60(b)(1) and (6), asserting that his status as a pro se litigant entitled him to

another try at the merits of the case. The judge denied the motion, pointing out that she

had repeatedly warned Fillmore about the requirement that he cite admissible evidence

in support of his arguments, see F ED

. R. C IV

. P. 56(c).

On appeal, we first note that Fillmore has waived several arguments. For

example, Fillmore has waived his argument that the magistrate judge erred by

declining to recruit him counsel and by denying leave to file his supplemental

declaration about his meeting with Brantley. He did not object in the district court to the

magistrate judge’s denial of these motions, so he cannot challenge those decisions now.

See F ED

. R. C IV

. P. 72(a), (b); Banco Del Atlantico, S.A. v. Woods Indus.

, 519 F.3d 350, 354

(7th Cir. 2008). Further, in Fillmore’s appellate briefs, he does not discuss the dismissal

of any of his claims under Title VII or his claims under § 1981 arising from Koepp’s

actions; he has thus waived any challenge to those dismissals. See Bernard v. Sessions

,

881 F.3d 1042, 1048 (7th Cir. 2018).

That leaves Fillmore’s challenge to the entry of summary judgment for Indiana

Bell on his § 1981 claim of retaliation by Brantley. To succeed on a retaliation claim

under § 1981, a plaintiff must show that he engaged in protected activity and suffered

an adverse employment action as a result. Baines v. Walgreen Co.

, 863 F.3d 656, 661 (7th

Cir. 2017). Although reporting discrimination to a supervisor can be statutorily

protected, the plaintiff must complain of discrimination based on race (or another

protected basis) or describe sufficient facts to raise that inference. Tomanovich v. City of

Indianapolis

, 457 F.3d 656, 663–64 (7th Cir. 2006). Here Fillmore needed to provide

evidence that he either expressly complained to Brantley about Koepp’s racially

discriminatory conduct or provided enough information to raise an inference that he

was alleging racial discrimination.

But no evidence adduced by either party at summary judgment sheds light on

the conversation between Fillmore and Brantley other than the undisputed fact that it

happened. Fillmore could not rely on his pleadings; instead, he needed to cite to

particular parts of the record that supported his assertion that he complained toNo. 17

‐ 3367 Page 4

Brantley about race discrimination. See F ED

. R. C IV

. P. 56(c)(1)(A); Modrowski v. Pigatto

,

712 F.3d 1166, 1169 (7th Cir. 2013). He failed to do so.

Fillmore’s other argument on appeal is that the district court improperly denied

him relief under Federal Rule of Civil Procedure 60(b)(1) and (6) because he was

“merely a layman” whose pro se status entitled him to relief from judgment. This

argument best fits under 60(b)(1), which permits reopening within one year of

judgment if the party shows “mistake, inadvertence, surprise, or excusable neglect.” But

without further explanation of the circumstances, one’s pro se status does not

automatically entitle a litigant to 60(b)(1) relief. Jones v. Phipps

, 39 F.3d 158, 163 (7th Cir.

1994). And because Fillmore’s argument falls within the 60(b)(1) framework, he cannot

also argue that he is entitled to relief under 60(b)(6). See Arrieta v. Battaglia

, 461 F.3d 861,

865 (7th Cir. 2006). The district court did not abuse its discretion when it decided that

Fillmore’s pro se status did not entitle him to another bite at the apple. See Bakery Mach.

& Fabrication, Inc. v. Traditional Baking, Inc.

, 570 F.3d 845, 848 (7th Cir. 2009).

AFFIRMED