In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2535

Tony Brummett,

Plaintiff-Appellant,

v.

Lee Enterprises, Inc. d/b/a
The Decatur Herald and Review,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99-2154--Michael P. McCuskey, Judge.

Argued February 25, 2002--Decided March 25, 2002



  Before Posner, Easterbrook, and Williams,
Circuit Judges.

  Williams, Circuit Judge. In this Title
VII case, we apply the familiar burden-
shifting standards of McDonnell Douglas
v. Green, 411 U.S. 792 (1973) to
plaintiff Tony Brummett’s claim of racial
discrimination by former employer Decatur
Herald and Review ("the Herald"). The
district court granted summary judgment
to the Herald, finding that Brummett
failed to make out a prima facie case of
discrimination under McDonnell Douglas.
At oral argument, Brummett argued that we
should bypass the first prong of
McDonnell Douglas by merging his prima
facie claim of discrimination into his
claim that his employer’s stated reasons
for terminating him were pretextual.
Although we reject Brummett’s analysis as
applied to the facts of this case and
affirm the judgment below, we write to
clarify when a merger analysis is
appropriate.

I.   BACKGROUND

  Plaintiff Tony Brummett is an African-
American man and an alleged victim of
racial discrimination. He formerly worked
as a district sales manager and later as
an advertising salesman with the Herald,
a daily newspaper circulated in the
metropolitan area of Decatur, Illinois.
Brummett’s advertising responsibilities
with the Herald required a substantial
amount of driving to client sites to
facilitate and maintain client-based
relationships. According to the Herald’s
official policy, "a valid driver’s
license and a good driving record are
conditions of employment for those who
must drive on company business."

  The fact pattern in this case is not in
serious dispute. During Brummett’s
employment with the Herald, the Herald
became aware of two incidents involving
Brummett’s use of a motor vehicle while
under the influence of alcohol. As a
result, the Herald warned Brummett that:
a) his employment depended upon his
maintaining a clean driving record and b)
his excessive drinking could result in
his dismissal under their strict good-
driving policy. Not long after, Brummett
was again arrested for driving under the
influence of alcohol. Because he
exercised his right to refuse a field
sobriety test, his driver’s license was
immediately suspended. The only issue in
dispute before the district court was
Brummett’s contention that he immediately
reported his arrest to his supervisor at
the Herald. The Herald, on the other
hand, asserted that it initially found
out about Brummett’s arrest through other
sources. At any rate, Brummett was
terminated by the Herald several weeks
after the latest arrest came to its
attention. When informing him of his
termination, the Herald cited Brummett’s
lack of a driver’s license and his
failure to report his D.U.I. arrest as
their cause.

  Feeling that he was given short shrift,
Brummett sued the Herald, claiming that
he was terminated because of his race.
The district court, in a well-reasoned
and thoughtful opinion, granted summary
judgment to the Herald, finding that
Brummett could not establish a prima
facie case of racial discrimination under
McDonnell Douglas, and that he failed to
provide any direct or indirect evidence
that the Herald’s neutral explanation for
his termination was subterfuge for the
company’s racial discrimination.

II.   ANALYSIS

  Brummett claims that because the parties
disagree as to whether he, in fact, told
his supervisor that he was arrested, he
has presented a material issue of
disputed fact. According to Brummett,
because the defendant proffered two
reasons for his discharge, a dispute as
to the validity of one of them entitles
him to reach the jury. This is simply not
so.

  Lacking any direct evidence of racial
animus, Brummett relies on the burden-
shifting framework of McDonnell Douglas
in a creative fashion. However, he puts
the pretext cart before the prima facie
horse. As we have set out countless
times, the prima facie test under
McDonnell Douglas requires the plaintiff
to establish four things, that: 1) he
belongs to a protected class; 2) his
performance met his employer’s legitimate
expectations; 3) he suffered an adverse
employment action; and 4) similarly
situated others not in his protected
class received more favorable treatment.
See, e.g., Coco v. Elmwood Care, Inc.,
128 F.3d 1177 (7th Cir. 1997). The
plaintiff must meet each prong of the
prima facie test before it becomes
necessary to reach the issue of pretext.
Id. at 1179.

  However, in limited circumstances, a
plaintiff may be able to meet the second
part of the prima facie case without
showing that he met his employer’s
legitimate expectations. As we explained
in Fuka v. Thomson Consumer Electronics,
82 F.3d 1397, 1404 (7th Cir. 1996), an
individual who meets the other criteria
for a prima facie case and also
demonstrates that the employer’s
legitimate expectations were themselves
pretextual can survive the first prong of
McDonnell Douglas. Under those
circumstances, the prima facie case is
subsumed into one of establishing pretext
under McDonnell Douglas’s third prong. We
have also considered this merger analysis
appropriate in cases where the reason for
the employee’s termination was alleged to
be a sham designed to hide the employer’s
discriminatory purpose. See Vakharia v.
Swedish Covenant Hospital, 190 F.3d 799,
807 (7th Cir. 1999).

  To make a credible argument for merger
in this case, Brummett has to show that
the Herald’s legitimate expectation of an
employee’s good-driving record was
instead a pretextual policy cloaked in
the shadow of racial discrimination.
Under no circumstances can Brummett make
this showing. The good-driving policy is
so clearly related to Brummett’s job (and
many others at the Herald) that its
neutrality is obvious on its face. As we
have previously said, "we will not
second-guess an employer’s policies that
are facially legitimate." See Foster v.
Arthur Andersen, LLP, 168 F.3d 1029, 1035
(7th Cir. 1999).

  Therefore, to meet his prima facie case,
Brummett must demonstrate that he met the
Herald’s good-driving requirements at the
time of his termination. The Herald
requires that all salespeople, regardless
of race, have a valid driver’s license
and a favorable driving record. At the
time of his termination, Brummett had
neither. His license had been suspended
for a minimum of six months, and this was
not his first dangerous driving offense.
Despite these problems, he argues that he
eventually received a driver’s permit,
which would have permitted him to drive
on the job under limited circumstances.
This is of no consequence. Whether the
plaintiff ultimately would or could have
found some remedial solution to his
employer’s legitimate expectations is not
the issue under the first prong of
McDonnell Douglas. The issue is simply
whether Brummett was "meeting his
employer’s expectations at the time of
the discharge." See Anderson v. Stauffer
Chemical Co., 965 F.2d 397 (7th Cir.
1992) (italics in original). In other
words, at the time of his termination,
could Brummett have legally driven by
himself to the Herald’s various
advertising client sites? The undisputed
answer is no.

  The real issue here is that Brummett
wanted the Herald to cut him more slack
and to arrange creative long-term
solutions to his driving dilemma.
However, the Herald was under no
obligation to bend over backwards to
assist its employees with their job-
related difficulties, especially
difficulties caused by their own
wrongdoing. The Herald expected that all
sales employees be able to drive--and
safely. Because the plaintiff failed to
show that he was able to meet these
legitimate expectations, he fails to make
out even a prima facie case of
discrimination./1

III.   CONCLUSION

  For the foregoing reasons, we AFFIRM the
district court’s judgment in favor of the
defendant.

FOOTNOTE

/1 Also lacking evidence of pretext, Brummett fails
the third prong of McDonnell Douglas as well.
See, e.g., Wolf v. Buss (America) Inc., 77 F.3d
914, 919 (7th Cir. 1996). We have undertaken a
careful review of the record below, and there is
simply no evidence that Brummett’s race had
anything to do with his termination. It is not
enough that he is African-American, was disliked,
and was fired; he must present some evidence,
direct or indirect, that he was fired because of
his race. For example, his theory that he was
fired because of his confrontation with a third
party--even if true--has nothing to do with his
race.
