Christopher W. Fillmore v. Indiana Bell Telephone Company, Incorporated

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,
Judge.
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 FED. R. A PP. P. 34(a)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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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 reported

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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 FED. 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 FED. 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 to

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Brantley about race discrimination. See FED. 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

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