                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted February 13, 2008*
                             Decided February 14, 2008

                                      Before

                   Hon. JOEL M. FLAUM, Circuit Judge

                   Hon. TERENCE T. EVANS, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 07-2647

LINZIE LEDBETTER,                            Appeal from the United States District
     Plaintiff-Appellant,                    Court for the Southern District of
                                             Illinois
      v.
                                             No. 05-4190-GPM
JACKSON COUNTY AMBULANCE
SERVICE,                                     G. Patrick Murphy,
     Defendant-Appellee.                     Judge.


                                    ORDER

       Linzie Ledbetter, a former livery van driver, sued the Jackson County
Ambulance Service (JCAS) under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17, alleging discrimination on the basis of race and sex. The
district court granted JCAS summary judgment on all of Ledbetter’s claims and
denied his motion for relief from judgment. Ledbetter now appeals the court’s order
granting JCAS summary judgment. We affirm.



      *
        After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See FED. R. APP. P. 34(a)(2).
No. 07-2647                                                                     Page 2

       Because this case was dismissed at the summary judgment stage, we
construe the facts in Ledbetter’s favor. Bannon v. Univ. of Chicago, 503 F.3d 623,
626 (7th Cir. 2007). Ledbetter, an African-American male, was hired by JCAS as a
van driver in November 1996. Six years later, in November 2002, the Sheriff’s
Office of Jackson County advised JCAS that it would no longer dispatch non-
emergency ambulances. JCAS, in response, created three dispatcher positions that
paid a lower wage and offered fewer hours than Ledbetter’s job as a van driver.
Ledbetter nevertheless expressed interest in the dispatcher position because he
perceived it as having better working conditions than the van driver position. JCAS
advertised the dispatcher position in the local newspaper for four days, but it did
not post the open position anywhere at the job site. Ledbetter never produced any
evidence that he applied for the dispatcher position, although on appeal he now
claims he did.

       In March 2003 JCAS determined that it needed a supervisor for the three
dispatcher positions. Rather than create a new position, it assigned the additional
duties to supervisor Louise Lustig without altering her salary or job title. Shortly
thereafter, Ledbetter violated JCAS policy by picking up a patient prior to being
dispatched. Confronted with this apparent violation by Lustig, Ledbetter, according
to JCAS, became angry, slapped his hands against the wall, and began to scream.
Ledbetter denies these accusations. JCAS held a disciplinary hearing at which it
determined that Ledbetter had been insubordinate, and it therefore suspended him
for thirty days. Following his suspension, Ledbetter continued to work at JCAS as
a van driver until he voluntarily resigned in June 2004.

       He then brought this lawsuit, claiming that JCAS discriminated against him
on the basis of race and sex when it failed to promote him and when it suspended
him. JCAS moved for summary judgment, which the district court granted, finding
that Ledbetter never applied for the dispatcher position and failed to offer any
evidence of racial or gender motivation in his suspension. Further, the court held
that there was in fact no new supervisor position to which he might have been
promoted. After granting JCAS’s motion for summary judgment, Ledbetter moved
for a new trial, which the district court construed as a motion for relief from
judgment and denied.

       On appeal Ledbetter challenges the district court’s grant of summary
judgment to JCAS and denial of his motion for relief from judgment. We review a
grant of summary judgment de novo, construing the facts and inferences in
Ledbetter’s favor. See Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th
Cir. 2007). However, to avoid summary judgment, the nonmoving party must set
forth specific facts showing there is a genuine issue for trial. Id. Ledbetter has not
done so.
No. 07-2647                                                                    Page 3

       Ledbetter first contends that JCAS unlawfully discriminated against him on
the basis of race and gender when it failed to promote him to the new dispatcher or
supervisor positions. But Ledbetter cannot establish a prima facie case for these
claims because he has not suffered an adverse employment action—he has offered
no proof that he in fact applied for either the supervisor or the dispatcher job. See
Hudson v. Chicago Transit Auth., 375 F.3d 552, 558-59 (7th Cir. 2004) (plaintiff
cannot make prima facie case for unlawful discrimination under Title VII if he does
not apply for a posted job vacancy). Rather, he seems to have merely inquired about
the dispatcher openings without ever applying. Furthermore, Ledbetter offered no
evidence that JCAS deterred him in some discriminatory way from applying for the
dispatcher job. And no facts contradict JCAS’s evidence that it never created a new
supervisor position to which Ledbetter could have applied.

       Ledbetter next argues that JCAS discriminated against him on the basis of
race and gender when it suspended him in March 2003 for threatening supervisor
Lustig. But he does not argue that JCAS’s reason for suspending him had anything
to do with race or gender. Ledbetter instead challenges the correctness of JCAS’s
conclusion that he threatened Lustig. Although JCAS may have been wrong in its
decision to suspend him, this in no way proves that it lied about its reason for doing
so. See Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006). In
addition, Ledbetter introduced no evidence that non-African-American employees
who threatened supervisors were treated more favorably. The district court
therefore properly granted summary judgment to JCAS because Ledbetter failed to
put forth a triable issue on whether JCAS suspended him for discriminatory
reasons.

       Finally, Ledbetter contends that his “motion for a new trial,” construed by
the district court as a motion for relief from judgment, should have been granted
because new evidence proved that the advertisement in the local newspaper for the
dispatcher jobs was actually an advertisement for receptionists. But the title of the
job opening listed in the advertisement is a red herring because Ledbetter knew of
the open dispatcher positions. And, given that Ledbetter knew JCAS was relying
on the newspaper advertisement in its motion for summary judgment, the new
evidence could and should have been presented to the district court prior to the
judgment. See, e.g., Dal Pozzo v. Basic Machinery Co., 463 F.3d 609, 615 (7th Cir.
2006). Rule 59(e) also requires that any newly discovered evidence be material.
FED. R. CIV. P. 59(e). Here, the proffered evidence is in no way material to whether
Ledbetter actually had prior knowledge of the job posting, which he did. Thus, the
district court did not err in denying Ledbetter’s post-judgment motion.

      Accordingly, because there is no evidence that any of JCAS’s actions were
based on race or gender, the judgment is AFFIRMED.
