In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2535

Tony Brummett,

Plaintiff-Appellant,

v.

Lee Enterprises, Inc. d/b/a

The Decatur Herald and Review,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 99-2154--Michael P. McCuskey, Judge.

Argued February 25, 2002--Decided March 25, 2002

 Before Posner, Easterbrook, and Williams,

Circuit Judges.

 Williams, Circuit Judge. In this Title

VII case, we apply the familiar burdenshifting standards of McDonnell Douglas

v. Green, 411 U.S. 792 (1973) to

plaintiff Tony Brummett’s claim of racial

discrimination by former employer Decatur

Herald and Review ("the Herald"). The

district court granted summary judgment

to the Herald, finding that Brummett

failed to make out a prima facie case of

discrimination under McDonnell Douglas.

At oral argument, Brummett argued that we

should bypass the first prong of

McDonnell Douglas by merging his prima

facie claim of discrimination into his

claim that his employer’s stated reasons

for terminating him were pretextual.

Although we reject Brummett’s analysis as

applied to the facts of this case and

affirm the judgment below, we write to

clarify when a merger analysis is

appropriate.

I. BACKGROUND

 Plaintiff Tony Brummett is an AfricanAmerican man and an alleged victim of

racial discrimination. He formerly worked

as a district sales manager and later as

an advertising salesman with the Herald,

a daily newspaper circulated in the
metropolitan area of Decatur, Illinois.

Brummett’s advertising responsibilities

with the Herald required a substantial

amount of driving to client sites to

facilitate and maintain client-based

relationships. According to the Herald’s

official policy, "a valid driver’s

license and a good driving record are

conditions of employment for those who

must drive on company business."

 The fact pattern in this case is not in

serious dispute. During Brummett’s

employment with the Herald, the Herald

became aware of two incidents involving

Brummett’s use of a motor vehicle while

under the influence of alcohol. As a

result, the Herald warned Brummett that:

a) his employment depended upon his

maintaining a clean driving record and b)

his excessive drinking could result in

his dismissal under their strict gooddriving policy. Not long after, Brummett

was again arrested for driving under the

influence of alcohol. Because he

exercised his right to refuse a field

sobriety test, his driver’s license was

immediately suspended. The only issue in

dispute before the district court was

Brummett’s contention that he immediately

reported his arrest to his supervisor at

the Herald. The Herald, on the other

hand, asserted that it initially found

out about Brummett’s arrest through other

sources. At any rate, Brummett was

terminated by the Herald several weeks

after the latest arrest came to its

attention. When informing him of his

termination, the Herald cited Brummett’s

lack of a driver’s license and his

failure to report his D.U.I. arrest as

their cause.

 Feeling that he was given short shrift,

Brummett sued the Herald, claiming that

he was terminated because of his race.

The district court, in a well-reasoned

and thoughtful opinion, granted summary

judgment to the Herald, finding that

Brummett could not establish a prima

facie case of racial discrimination under

McDonnell Douglas, and that he failed to

provide any direct or indirect evidence

that the Herald’s neutral explanation for

his termination was subterfuge for the

company’s racial discrimination.

II. ANALYSIS

 Brummett claims that because the parties
disagree as to whether he, in fact, told

his supervisor that he was arrested, he

has presented a material issue of

disputed fact. According to Brummett,

because the defendant proffered two

reasons for his discharge, a dispute as

to the validity of one of them entitles

him to reach the jury. This is simply not

so.

 Lacking any direct evidence of racial

animus, Brummett relies on the burdenshifting framework of McDonnell Douglas

in a creative fashion. However, he puts

the pretext cart before the prima facie

horse. As we have set out countless

times, the prima facie test under

McDonnell Douglas requires the plaintiff

to establish four things, that: 1) he

belongs to a protected class; 2) his

performance met his employer’s legitimate

expectations; 3) he suffered an adverse

employment action; and 4) similarly

situated others not in his protected

class received more favorable treatment.

See, e.g., Coco v. Elmwood Care, Inc.,

128 F.3d 1177 (7th Cir. 1997). The

plaintiff must meet each prong of the

prima facie test before it becomes

necessary to reach the issue of pretext.

Id. at 1179.

 However, in limited circumstances, a

plaintiff may be able to meet the second

part of the prima facie case without

showing that he met his employer’s

legitimate expectations. As we explained

in Fuka v. Thomson Consumer Electronics,

82 F.3d 1397, 1404 (7th Cir. 1996), an

individual who meets the other criteria

for a prima facie case and also

demonstrates that the employer’s

legitimate expectations were themselves

pretextual can survive the first prong of

McDonnell Douglas. Under those

circumstances, the prima facie case is

subsumed into one of establishing pretext

under McDonnell Douglas’s third prong. We

have also considered this merger analysis

appropriate in cases where the reason for

the employee’s termination was alleged to

be a sham designed to hide the employer’s

discriminatory purpose. See Vakharia v.

Swedish Covenant Hospital, 190 F.3d 799,

807 (7th Cir. 1999).

 To make a credible argument for merger

in this case, Brummett has to show that

the Herald’s legitimate expectation of an

employee’s good-driving record was
instead a pretextual policy cloaked in

the shadow of racial discrimination.

Under no circumstances can Brummett make

this showing. The good-driving policy is

so clearly related to Brummett’s job (and

many others at the Herald) that its

neutrality is obvious on its face. As we

have previously said, "we will not

second-guess an employer’s policies that

are facially legitimate." See Foster v.

Arthur Andersen, LLP, 168 F.3d 1029, 1035

(7th Cir. 1999).

 Therefore, to meet his prima facie case,

Brummett must demonstrate that he met the

Herald’s good-driving requirements at the

time of his termination. The Herald

requires that all salespeople, regardless

of race, have a valid driver’s license

and a favorable driving record. At the

time of his termination, Brummett had

neither. His license had been suspended

for a minimum of six months, and this was

not his first dangerous driving offense.

Despite these problems, he argues that he

eventually received a driver’s permit,

which would have permitted him to drive

on the job under limited circumstances.

This is of no consequence. Whether the

plaintiff ultimately would or could have

found some remedial solution to his

employer’s legitimate expectations is not

the issue under the first prong of

McDonnell Douglas. The issue is simply

whether Brummett was "meeting his

employer’s expectations at the time of

the discharge." See Anderson v. Stauffer

Chemical Co., 965 F.2d 397 (7th Cir.

1992) (italics in original). In other

words, at the time of his termination,

could Brummett have legally driven by

himself to the Herald’s various

advertising client sites? The undisputed

answer is no.

 The real issue here is that Brummett

wanted the Herald to cut him more slack

and to arrange creative long-term

solutions to his driving dilemma.

However, the Herald was under no

obligation to bend over backwards to

assist its employees with their jobrelated difficulties, especially

difficulties caused by their own

wrongdoing. The Herald expected that all

sales employees be able to drive--and

safely. Because the plaintiff failed to

show that he was able to meet these

legitimate expectations, he fails to make

out even a prima facie case of
discrimination./1

III. CONCLUSION

 For the foregoing reasons, we AFFIRM the

district court’s judgment in favor of the

defendant.

FOOTNOTE

/1 Also lacking evidence of pretext, Brummett fails

the third prong of McDonnell Douglas as well.

See, e.g., Wolf v. Buss (America) Inc., 77 F.3d

914, 919 (7th Cir. 1996). We have undertaken a

careful review of the record below, and there is

simply no evidence that Brummett’s race had

anything to do with his termination. It is not

enough that he is African-American, was disliked,

and was fired; he must present some evidence,

direct or indirect, that he was fired because of

his race. For example, his theory that he was

fired because of his confrontation with a third

party--even if true--has nothing to do with his

race.