# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 25, 2013 *

Decided October 25, 2013

Before

RICHARD A. POSNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 13

‐ 1828

LAWRENCE B. SMIZER,

Plaintiff–Appellant

,

v.

COMMUNITY MENNONITE EARLY

LEARNING CENTER,

Defendant–Appellee

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 10 C 4304

John Z. Lee,

Judge.

O R D E R

Lawrence Smizer was fired from his job as a teacher’s aide at the Community

Mennonite Early Learning Center. The reason, he believes, is that the Center’s

director—his mother—was reacting to statements from potential clients who had

decided against placing their daughters at the daycare when they realized that a male

staff member would be attending their toddlers. The Center, in contrast, says that the NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See F ED

. R. A PP

.

P. 34(a)(2)(C).No. 13

‐ 1828 Page 2

plaintiff was fired because he brought a family squabble into the workplace. The

plaintiff sued the Center under Title VII of the Civil Rights Act of 1964, see 42 U.S.C.

§ 2000e

‐ 2(a)(1), and also included in his complaint a state

‐ law claim for defamation. The

district court granted summary judgment for the Center on the Title VII claim and then

declined to exercise jurisdiction over the defamation claim. We conclude that a jury

could not side with the plaintiff based on the evidence presented at summary judgment,

and thus we affirm the judgment.

The Center is church

‐ affiliated and offers daycare for newborns through age five.

It also has a kindergarten program. The plaintiff was hired in 1993 as a teacher’s aide.

When he lost his job in April 2010, he was assigned to a classroom where he supervised

two

‐ year

‐ old children. At that time only one of his coworkers, a cook, was male. As of

November 2011 the Center had 19 employees, and its website states that currently it is

licensed to serve 210 children. The Center has not suggested that sex could be a

bona fide occupational qualification for a teacher’s aide working with very young

children. See 42 U.S.C. § 2000e

‐ 2(e)(1).

Before he was fired, the plaintiff’s annual performance evaluations all had been

satisfactory, including the last in November 2009. The only reprimand documented in

his employment file was for wearing open

‐ toed shoes on April 5, 2010. The plaintiff

does not dispute, however, that a family quarrel involving custody of his teenage

nephew had been brewing for several years before he was fired. The nephew was not

living at home, and the plaintiff had supported his sister’s effort to regain custody of

her son. The plaintiff’s mother, Jackie Smizer, opposed that outcome, as did his

grandmother, Rosemary Wooley, a volunteer at the Center. On April 8, 2010, a state

judge awarded custody to the boy’s mother, and that night a former Center employee,

Lynetta Hall, sent an e

‐ mail to the plaintiff’s nephew with this message:

Lawrence Dontyoujudgeme Smizer To all my family that fought my

sister tooth and nail over some BULLSHIT (And you know who you

are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE

BELONGS!!!!!

HAHAHAHAHAHAHA HAHAHAHAHAHAHA HAAHAHHAHAH

HAAH

The next morning, Jackie Smizer sent an e

‐ mail to Michael Devine, the chairman of the

Center’s board of directors, asserting that the plaintiff had posted on Facebook “about

his damned family & that’s what we get for f***ing with his sister and other horribleNo. 13

‐ 1828 Page 3

stuff.” Jackie expressed concern that other employees would have seen the alleged post,

and she added that “Lynetta even sent it” to her grandson, who had opposed being

returned to his mother.

Three days later, Jackie wrote a memo to Devine explaining that she and Wooley,

the plaintiff’s grandmother, no longer felt safe in the plaintiff’s presence. She asked that

he be fired for “creating a hostile work environment” and for “pulling staff into this

family drama.” Jackie asserted that her grandson had telephoned her, upset, after

receiving the e

‐ mail sent by Lynetta Hall. The plaintiff, she continued, had “never been

the ideal employee,” though as his mother she had been unwilling to see anything but

good. But now, Jackie said, she had “set about gathering the evidence to dismiss him.”

The plaintiff, she reported, “came in late, left early, used center equipment and

computers without permission and reportedly slept on the job.” And, she added, the

plaintiff had grown “defiant” in the previous six months, and while at the Center had

“got into an argument” with Wooley prompting another employee to intervene “to

make sure that Larry didn’t hit his 78 year old grandmother.”

On April 15, 2010, Devine hand

‐ delivered to the plaintiff a two

‐ line letter

informing him that he was fired “for insubordination and unprofessional conduct.”

Devine told the plaintiff that “the Facebook posting” was the basis for his dismissal.

In his complaint the plaintiff alleged that, in the two weeks after he was

reprimanded, four women wore open

‐ toed shoes but were not disciplined. He also

alleged that, while he was on vacation in December 2009, Chairman Devine reportedly

had found pornography on a shared computer at the Center, and Jackie Smizer had

accused the plaintiff of downloading the files because, she said, “Women don’t like

porn.” This is the extent of his explanation for suspecting sex discrimination; the rest of

his complaint concerned the defamation claim.

In moving for summary judgment, the Center asserted that Chairman Devine

had discharged the plaintiff after consulting with Jackie Smizer and the plaintiff’s

immediate supervisor, Cathy Bijou. The Center reached back as far as 2002 to identify

performance issues, including that sometimes the plaintiff left food remnants in his

classroom, he did not always punch the clock when he arrived at the Center, and on

more than one occasion he was seen by Bijou or the office manager viewing

pornography on a Center computer. But the Center conceded that, as of his most

‐ recent

evaluation, the plaintiff’s classroom performance had been “generally good to very

good,” and the accumulating list of problems with him had not justified his dismissal.No. 13

‐ 1828 Page 4

Instead, the Center maintained, he was fired because of the “Facebook posting” he

“directed at” Jackie Smizer and Wolley. By “posting” the Center means the text of the

e

‐ mail Lynetta Hall sent to the plaintiff’s nephew; the Center did not produce a screen

shot of the post or any Facebook record of its existence. Neither did the Center submit

evidence from Hall that what she wrote in her e

‐ mail was from the plaintiff’s Facebook

page. The Center instead offered affidavits from Bijou, her daughter, and the office

manager all saying that they personally had viewed the plaintiff’s Facebook page and

seen, in substance, the first sentence of the alleged post as reproduced in Hall’s e

‐ mail.

The office manager elaborated that she had read the post on April 9 when she noticed

that the plaintiff’s Facebook page was open on a Center computer. The Center rounded

out its presentation with a list of ten employees fired over the years—nine of them

women, including Lynetta Hall—along with the assertion that no female employee ever

had “posted derogatory messages on the internet” targeting the Center’s management.

In a memorandum, the plaintiff responded by asserting that, in the year before

he was fired, reductions in state funding that had subsidized the childcare expenses of

many families with children at the Center had forced management to seek increased

enrollment, and Jackie Smizer had told him that his gender was costing the Center

money because four times prospective clients had declined to enroll their two

‐ year

‐ old

daughters after realizing that the girls would be supervised by the plaintiff. Those

parents had expressed discomfort with a male employee supervising children who were

not yet toilet trained, and, according to the plaintiff, Jackie even had said that Chairman

Devine called him a “liability.”

Yet none of this made it into the plaintiff’s response to the Center’s statement of

material facts, or into his own statement of material facts. See N.D. I LL L. R. 56.1. Instead,

the plaintiff denied writing the alleged Facebook post, and he pointed out that the

Center had not been able to produce anything more than Hall’s e

‐ mail to his nephew

and affidavits from Bijou and the two other women who say they read a post similar to

Hall’s e

‐ mail while looking at what they believed to be the plaintiff’s Facebook page.

The plaintiff also denied viewing pornography at the Center and asserted that four

female employees had not been fired for misconduct akin to his asserted issue with

keeping accurate attendance records.

The district court concluded that the plaintiff did not have direct evidence of sex

discrimination, and that he lacked circumstantial evidence sufficient to survive

summary judgment under either the direct or indirect methods of proof. As to both

methods, the court reasoned, the plaintiff lacked proof that similarly situated femaleNo. 13

‐ 1828 Page 5

employees had been treated more favorably because none of his proposed comparators

had written offensive comments about coworkers on a social media site. The court also

concluded that the plaintiff lacked evidence from which a jury could find that the

Center’s stated reason for terminating his employment—the alleged Facebook

post—was pretextual. We review de novo the district court’s decision and construe all

facts and reasonable inferences in favor of the plaintiff. See Phelan v. Cook County

, 463

F.3d 773, 778 (7th Cir. 2006).

On appeal the plaintiff repeats his assertion that a concern about lost revenue

was the Center’s real reason for firing him, and that his alleged Facebook post was

cover for discrimination. The Center responds that its belief that he posted disparaging

remarks about coworkers is undisputed, and that the post was a legitimate,

nondiscriminatory reason for terminating his employment. The plaintiff’s

discrimination claim comes down to whether he submitted enough evidence to show

that the Center’s reason was pretext, and he did not. Although the outcome might well

have been different if the plaintiff had introduced evidence to substantiate his

accusation that Jackie Smizer and Chairman Devine had labeled him a liability because

of his sex, he passed over the opportunity at summary judgment.

To show that the Center’s reason was pretext, the plaintiff needed to demonstrate

weaknesses, implausibilities, or inconsistencies in the Center’s stated reason for firing

him. See Coleman v. Donahoe

, 667 F.3d 835, 852 (7th Cir. 2012). Even if the Center’s reason

was not a good one, that is irrelevant if the Center honestly believed that the plaintiff

wrote the post. See id. at 853. The plaintiff’s opposition focused mostly on his denial that

he wrote the alleged Facebook post, and he never submitted evidence showing that his

mother or the chairmen did not honestly believe he wrote the text printed in the e

‐ mail

originating from Lynetta Hall. The plaintiff points out that the Center has been unable

to produce an image of the Facebook post, that none of the witnesses who claim they

saw it printed it, and that there are inconsistencies in the affidavits of the various

witnesses who claim they saw the post. All of this might be significant if the Center’s

defense turned on its ability to prove that the alleged post actually was made or that the

plaintiff made it, but it does not. The plaintiff does not dispute that Jackie Smizer

received an e

‐ mail from his nephew containing text that Jackie believed the plaintiff

wrote on Facebook. Nor does he dispute that Jackie sent an e

‐ mail to Chairman Devine

describing the text, or that Jackie wrote a memo to Devine a few days before he was

fired, again describing the text, and requesting that the plaintiff be dismissed. The

plaintiff did not present sufficient evidence in his Local Rule 56.1 opposition to show

that Jackie and Chairman Devine did not honestly believe that he wrote a disparaging

post on Facebook, and thus summary judgment was properly granted for the Center.

AFFIRMED

.