In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2832

ANGELA TYSON,

Plaintiff-Appellant,

v.

GANNETT CO., INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court for the 

Southern District of Illinois, Indianapolis Division. 

No. 1:05-cv-1848-RLY-TAB—Richard L. Young, Judge.

 ____________

ARGUED JULY 8, 2008—DECIDED AUGUST 19, 2008

____________

Before BAUER, COFFEY, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge. Plaintiff Angela Tyson sued her

employer Gannett Company, Inc., alleging that it had

discriminated against her on the basis of her race—she

is black—and disability and further retaliated against

her for filing a disability charge of discrimination by

refusing to let her return to work when she wanted to after

she had suffered a back injury. During the course of the

litigation, she abandoned all avenues of relief except for
2 No. 07-2832

her two race discrimination claims brought under 42 U.S.C.

§ 1981 and 42 U.S.C. § 2000e-2. The district court granted

summary judgment in favor of Gannett on both claims.

The court found that Tyson failed to make out a prima

facie case because she failed to present sufficient evidence

to establish that a similarly situated white employee

was treated more favorably. We affirm.

Tyson’s employer, Gannett, owns the Indianapolis Star

and News newspaper. The Star hired Tyson in 1998. She

started as a mailer helper and was promoted to mailer

assistant. In both jobs her duties included assembling the

newspaper, stacking it, and loading it onto machines in

preparation for distribution. Generally, mailer assistants

need to be able to stand 90% of the time, walk 10% of the

time, and lift, carry, push, and pull up to 35 pounds. The

mailer assistants’ specific tasks change from shift to shift,

and some are more physically demanding than others.

Like all her fellow mailer assistants at the Star, Tyson

is a member of the Teamsters Indiana Mailers Union Local

2001. The collective bargaining agreement between the

Union and the Star requires that tasks be assigned to mailer

assistants on the basis of “priority” (seniority). Thus, the

most senior mailer assistant on a shift is allowed to

choose the task she or he wishes to perform, and so on

down the line until all of the work assignments for the

shift have been allocated. The most senior mailer assistants

can avoid doing the most strenuous work on every shift

they work, but there is no guarantee that the less strenuous

will be available for mailer assistants with less seniority

who request it. When it is available, special “light duty”
No. 07-2832 3

work can be given to mailer assistants who are injured or

who have medical restrictions because of health problems.

On October 3, 2002, Tyson slipped and fell at work and

was injured. She then took sick leave for a period of time.

After she returned to work with medical restrictions, she

was assigned light work. In December of 2002, her doctor

discovered she had injured her arm in the fall and imposed

additional work restrictions. In February of 2003, Tyson

had surgery to remove a cyst on her tail bone, which was

unrelated to her fall. After that surgery, she claims to

have had chronic back pain. Tyson took a short-term

disability leave beginning in February of 2003.

In June of 2003, Tyson was released to return to work,

but the Star had no openings for her that she could perform

at that time with her restriction of not lifting more than

25 pounds. A medical report of October 2003, stated that

she could work if she was provided with a counter

brace for her right upper extremity and had a lifting

restriction of 35 pounds. When she no longer needed the

brace, Tyson returned to work as a mailer assistant in

November with a 25-pound lifting restriction and was

assigned to do light duty work. Then, in 2004, her back

began to cause her discomfort. At that time, no light duty

work assignments were available and she sought and

obtained both short and long-term disability benefits. She

remains on long-term disability to this day while still an

employee of the Star.

Tyson’s sole remaining claim is that Gannett discriminated against her on the basis of race by not permitting her

to work from June 9, 2003, until November 23 of the same
4 No. 07-2832

year while she was under a medical restriction barring her

from lifting more than 25 pounds. After discovery was

completed, Gannett moved for summary judgment and

the court granted the same. Our review is de novo, and

we will affirm if, after viewing the evidence in the light

most favorable to Tyson, there are no genuine issues of

material fact and, thus, the defendant is entitled to judgment as a matter of law. See Dorsey v. Morgan Stanley, 507

F.3d 624, 627 (7th Cir. 2007).

Tyson sued Gannett under both 42 U.S.C. § 1981 and

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Gannett argues that Tyson cannot bring a Title VII claim

because, it says, she did not file a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC) and, thus, has failed to exhaust her administrative remedies. A plaintiff can sue under Title VII only

if she first has filed a charge of discrimination with the

EEOC. See Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726

(7th Cir. 2003). Tyson alleged in her complaint—and

Gannett admitted in its answer—that she “filed a claim

of disability discrimination” against Gannett in October

2003, but there is no evidence that she filed charge of

discrimination on the basis of race. Tyson has failed to

present any evidence disclosing whether she has filed a

Title VII race discrimination claim, thus Gannett is

entitled to summary judgment on Tyson’s Title VII claim

because she failed to comply with the EEOC requirement.

Her Section 1981 claim survives, however, because the

filing of a discrimination charge is not a prerequisite to

pursuing that claim in court. See Fane v. Locke Reynolds,

L.L.P., 480 F.3d 534, 539 (7th Cir. 2007). Thus, we are left
No. 07-2832 5

with the question of whether there is any evidence to

support her claim of race discrimination.

Tyson has chosen to prove her case using the indirect

method set forth in McDonnell Douglas Corporation v. Green,

411 U.S. 792 (1973). The parties do not dispute that Tyson

meets the first three prongs of the four-part McDonnell

Douglas test—(1) she is a member of a protected class,

(2) she was meeting Gannett’s legitimate job requirements,

and (3) she suffered an adverse employment action. See

Fane, 480 F.3d at 538; see also Humphries v. CBOCS W., Inc.,

474 F.3d 387, 403-04 (7th Cir. 2007) (noting the McDonnell

Douglas test applies to discrimination claims brought

under Section 1981), aff’d, 128 S. Ct. 1951 (2008). They

disagree, however, about whether Tyson can establish

the fourth prong by proving that a Caucasian employee,

Janet Harvey, was similarly situated and that she was

treated more favorably. See Jones v. Union Pacific Railroad

Company, 302 F.3d 735, 741 (7th Cir. 2002). Tyson asserts

that Harvey was allowed to work as a mailer assistant

when she had a 25 pound lifting restriction. To be

similarly situated, Harvey and Tyson must be alike “in all

material respects,” so as to suggest that Tyson “was

singled out for worse treatment.” Henry v. Jones, 507

F.3d 558, 564 (7th Cir. 2007) (quoting Crawford v. Ind. Harbor

Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006)).

The record demonstrates that Tyson and Harvey were

not similarly situated because they had different seniority

status, the determining factor in job assignment under

the Union’s collective bargaining agreement. Harvey

began working for the Star approximately three years
6 No. 07-2832

before Tyson. Iris Hayden, Senior Human Resources

Business Consultant for Gannett, testified in her affidavit

that Harvey was in the top half of mailer assistants in

terms of seniority, while Tyson was in the bottom half.

Under the seniority system, the most senior mailer assistant gets to select which job functions he or she will

perform on a given shift. Some mailer assistants such as

Harvey have sufficient seniority to guarantee that they

can avoid having to perform duties that require lifting

more than 25 pounds. According to Hayden, Harvey had

enough seniority to ensure that she would only have to

work on tasks within her restrictions. Tyson attempted to

refute this evidence in her affidavit, which states that,

before her fall, she had sufficient seniority to select less

strenuous tasks. But, just because she has been able to

avoid certain tasks in the past, it does not mean that she

will always be able to accomplish this, because the

nature of her work assignments frequently changes from

shift to shift, and thus her ability to choose is based upon

the seniority of the other mailer assistants assigned to the

same shift, and furthermore more than half of all mailer

assistants are more senior than Tyson.

In this court’s recent opinion in Filar v. Board of Education

of the City of Chicago, 526 F.3d 1054, 1061-62 (7th Cir. 2008),

Judge Flaum, writing for the panel, said that: “In some

circumstances, differences in seniority will preclude a

showing that two employees are ‘similarly situated’. . . . To

the extent that seniority is a simple proxy for something

like the length of employment and is something that

an employer must credit when making employment

decisions, differences in seniority will tend to make two
No. 07-2832 7

employees dissimilar for purposes of the plaintiff’s prima

facie case.” Under this reasoning, Tyson and Harvey are

not similarly situated and, therefore, summary judgment

was appropriate because Tyson failed to prove her

prima facie case of race discrimination.

AFFIRMED.

8-19-08