# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted April 23, 2019 *

Decided April 24, 2019

Before

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-2587

KEENAN BROWN, Plaintiff-Appellant

,

v

.

WAL-MART STORES, INC., Defendant-Appellee

. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 17 C 393

Ronald A. Guzmán, J udge

.

O R D E R

Keenan Brown, a former associate in th e bakery department at a Wal-Mart store in New Lennox, Illinois, sued the company un der Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981, asserting that he was fired because of his race, color, and sex, and in retaliation for f iling internal complaints over incidents with coworkers. The district court entered su mmary judgment for Wal-Mart, and we affirm.

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts an d legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 18-2587 Page 2

Brown, who is African American, did no t get along with his colleagues in the bakery department. A month into his employment, he was confronted about his job performance by a coworker. She called him “rug rat” and “boy,” and, when Brown pointed his finger at her, she slapped his hand. Brown reported the incident to a manager, who told him that it would be addr essed. Brown also filed a complaint about the incident with Wal-Mart’s ethics offi ce. Two weeks later, Brown filed a second complaint against his coworker as well as th e bakery department’s supervisor, who, he believed, retaliated against him for his earl ier complaint by assigning him additional duties. Wal-Mart investigated Brown’s comp laints, concluded that the coworker had acted inappropriately by slapping his hand, and reprimanded her. But Wal-Mart concluded that Brown’s claims of retalia tion were not substantiated. Meanwhile, Wal-Mart granted Brown’s request to be tran sferred to the electronics department.

Shortly after his transfer, however, Brown was tardy for his shift. His tardiness meant that he had accumulated a certain nu mber of unauthorized absence “points” that, under company policy, subjected him to termination. The next day his new supervisor fired him for accruing too many unauthorized absences.

After receiving a right-to-sue letter fr om the EEOC, Brown brought this suit asserting discrimination based on his race, color, and sex, as well as retaliatory discharge for filing two internal comp laints against his colleagues.

The district court ultimately entered summary judgment for Wal-Mart on all claims. Regarding Brown’s discrimination clai ms, the court found that the record was “devoid” of any evidence that he had been discriminated against based on his sex, color, or race. See Ortiz v. Werner Enters., Inc. , 834 F.3d 760, 765 (7th Cir. 2016). As for Brown’s retaliation claim, the court determin ed that he had not pointed to evidence from which it could be inferred that his disc harge was caused by hi s internal complaints about his coworker and the bakery department’s supervisor.

On appeal, Brown first argues that he in troduced sufficient evidence from which it could be inferred that his coworker discrim inated against him and that the reason for his discharge was merely a pretext to discriminate. 1 Tracking the McDonnell Douglas Corporation v. Green framework, 411 U.S. 792, 802–03 (1973), Brown argues that he was

1 Brown also alludes in his brief to age discrimination, but he did not raise this claim before either the EEOC or the distri ct court and therefore has forfeited it. See Poullard v. McDonald , 829 F.3d 844, 855 (7th Cir. 2016).No. 18-2587 Page 3

meeting Wal-Mart’s legitimate performance e xpectations because his absences had been authorized by Wal-Mart management. See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508

, 846 F.3d 216, 224 (7th Cir. 2017). But he offered no evidence to dispute Wal-Mart’s employment records reflecting that he ha d accrued four and a half points for his unauthorized absences—and Wal-Mart’s policy is to discharge new hires, like Brown, if they accrue four or more points within six months of being hired.

Brown also asserts, generally, that Wal-Mart treated him differently from his similarly situated coworker in the bakery department who slapped his hand and was the subject of his complaints but not fired. Bu t here too he failed to point to evidence to suggest that she was “directly comparable to [him] in all material respects.” Coleman v. Donahoe , 667 F.3d 835, 846 (7th Cir. 2012) (internal quotations and citations omitted). He did not introduce evidence, for instance, to reflect that she received more than four points for being absent or tardy but was not fired, or that she was a new hire (she was not, she had been working for Wal-Mart for five years).

As for his claim of retaliation, Brown arg ues that the district court overlooked evidence that Wal-Mart ignored his complain ts and chose to selectively enforce its policies to fire him but not his coworker. Bu t as the district court determined, Brown cannot point to evidence of a causal conne ction between his disch arge and his internal complaints, given the absence of any eviden ce that the supervisor was aware of the complaints. See Cervantes v. Ardagh Grp. , 914 F.3d 560, 566–67 (7th Cir. 2019). The electronics department supervisor who fired Brown provided a declaration asserting that he was unaware that Brown had filed an y complaints prior to his termination, and Brown presented no evidence to the contrary.

We have considered Brown’s remainin g arguments, and none has merit.

AFFIRMED