                                   NONPRECEDENTIAL DISPOSITION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 17, 2010*
                                     Decided March 8, 2010


                                                Before
                                FRANK H. EASTERBROOK, Chief Judge
                                DIANE P. WOOD, Circuit Judge

                                ANN C LAIRE WILLIAMS, Circuit Judge

No. 09-2573
ASA S. LEWIS, SR.,                                                 Appeal from the United
       Plaintiff-Appellant,                                        States District Court for the
                                                                   Central District of Illinois.
                v.
                                                                   No. 07-cv-1086
C ATERPILLAR INC.,                                                 Joe Billy McDade, Judge.
      Defendant-Appellee.


                                                 Order
   Asa Lewis contends, in this suit under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e–17, that he was subjected to racially hostile working conditions
and that, when he complained, he was fired.
    The district court granted summary judgment in the employer’s favor after conclud-
ing that Lewis had not filed suit within 90 days after receiving the agency’s right-to-sue
notice. 42 U.S.C. §2000e–5(f)(1). It is undisputed that the agency sent the notice to a
nonexistent address, a pastiche of two in its records. The district court concluded, how-
ever, that Lewis had failed to inform the agency of his current address and would not
have received the notice even had the agency sent it to the latest one it had on file. Be-
cause a person who makes a charge of discrimination must alert the agency to any
change of address, 29 C.F.R. §1601.7(b), the district court deemed the notice received
when mailed, making the suit untimely. Lewis responded with an affidavit that he had
notified the agency about his current address. The district court declined to consider the
affidavit, ruling that it should have been presented sooner.


   * After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 09-2573                                                                        Page 2

     Lewis contends with some force that the district court should have held an eviden-
tiary hearing to determine whether the agency had his current address (and, if not,
whether a notice sent to the previous address would have been forwarded to him). The
employer defends the district court’s decision on the timeliness issue but also contends
that Lewis has not made out a prima facie case of race discrimination. An appellee is en-
titled to defend its judgment on any ground preserved in the district court (as this
ground was), whether or not the district judge resolved that ground. See Massachusetts
Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479 (1976). Instead of meeting the em-
ployer’s argument, Lewis’s reply brief ignores it—indeed, asks us to strike the em-
ployer’s brief because (Lewis maintains) a court of appeals may consider only issues
that the district judge actually addressed. Given Ludwig and many similar decisions,
however, this court is entitled to bypass the timeliness question and tackle the merits.
    To establish a prima facie case of discrimination, Lewis had to show that he belongs
to a protected class, was meeting the employer’s legitimate expectations, suffered an
adverse action, and was treated worse than similarly situated employees outside the
protected class. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973); Tyson
v. Gannett Co., 538 F.3d 781, 783 (7th Cir. 2008). The evidence of record would not per-
mit a reasonable jury to find that Lewis was meeting Caterpillar’s legitimate expecta-
tions or that any similarly situated person was treated more favorably.
    Lewis spent about eight months in Caterpillar’s employ. Approximately three
months of this was on leave. During his initial working weeks, he was frequently tardy
or late. Some six weeks into Lewis’s employment, a supervisor warned him that he was
tardy or late at an unacceptably high rate. Lewis then began to skip work altogether,
without obtaining approval in advance. After the fourth unexcused absence, a supervi-
sor told Lewis that, on his next working day, he must bring a physician’s note explain-
ing his absence, and that failure to do so would lead to his discharge. Lewis next ap-
peared at work without any medical documentation and was fired that very day.
    Failure to arrive for work on time—or at all—is not satisfactory performance. Em-
ployers need to know who will work so that they can plan production schedules (or ar-
range for substitutes). Lewis does not contend that Caterpillar’s rules allow employees
to be late, or miss work without approval, as often as he did. He therefore was not
meeting the employer’s legitimate expectations. Lewis contended in the district court
that two other employees had been treated more favorably, but he did not produce
evidence about their attendance records and therefore did not show either that they
were comparable or that any difference in treatment occurred. So he did not make out
a prima facie case of either race discrimination or retaliation. What this record shows is
an employer willing to grant Lewis ample time off on request, but unwilling to allow
him to show up late (or skip work altogether) without advance notice. Summary judg-
ment in Caterpillar’s favor therefore is

                                                                               AFFIRMED.
