                     NONPRECEDENTIAL DISPOSITION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 August 15, 2007*
                             Decided August 16, 2007

                                      Before

                      Hon. JOHN L. COFFEY, Circuit Judge

                      Hon. TERENCE T. EVANS, Circuit Judge

                      Hon. DIANE S. SYKES, Circuit Judge

No. 07-1738

GAJENDRA SINGH,                                Appeal from the United States
    Plaintiff-Appellant,                       District Court for the Northern
                                               District of Illinois, Eastern Division
      v.
                                               No. 05 C 3854
HOLY CROSS HOSPITAL,
    Defendant-Appellee.                        Virginia M. Kendall,
                                               Judge.

                                    ORDER

       Gajendra Singh claims that he was the victim of discrimination and several
state-law torts during his brief employment at Holy Cross Hospital. His suit
against the hospital was dismissed at summary judgment, and he appeals. We
affirm in part and vacate and remand in part.



      *
       After an examination of 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. 07-1738                                                                     Page 2

       Singh moved to the United States in 2002 after receiving a medical degree in
his native India. In January 2004 he was hired by Holy Cross as a part-time
surgical assistant. He resigned that job in May 2004, and after exhausting his
administrative remedies, he sued Holy Cross under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1981 claiming that he was
passed over for promotion to a full-time position and denied additional hours for
emergency calls because he is Indian. According to Singh, both the full-time
position and the emergency hours went to white American citizens.

       After completing discovery both parties moved for summary judgment. In
support of its motion, Holy Cross offered the declaration of Singh’s direct
supervisor, Ruth Zych, along with Singh’s deposition testimony and documentary
evidence including his performance review. That evidence showed that almost
immediately after Singh was hired his coworkers raised concerns about his
performance. On Singh’s first day Edguardo Arzadon—the employee charged with
overseeing his training—told Zych that Singh lacked initiative and was unfamiliar
with sterility techniques critical to his job duties. Several surgical technicians also
raised concerns about Singh’s performance during his first week. Arzadon again
told Zych in March that Singh did not have the experience required to do his job
effectively. Shortly thereafter, during a routine review of Singh’s performance,
Arzadon and other coworkers criticized his work, initiative, and attitude. In
particular, Arzadon recommended that Zych not assign Singh additional
responsibilities if better candidates could be found. Additionally, it was noted
during the review process that Singh had failed to complete a checklist of tasks that
all new surgical assistants must perform during orientation to show proficiency in
the skills and procedures required to carry out their duties.

       The hospital’s evidence also showed that Singh applied in March 2004 to fill a
vacancy for a full-time surgical assistant. Zych decided to offer Singh the
opportunity to share the position with an external candidate, Jack Adesso. Zych
intended to evaluate how each performed and then assign additional hours to the
more qualified. Singh rejected this offer, so Zych gave the position to Adesso, whom
she deemed more qualified anyway because he had 31 years’ experience as a
surgical assistant, including four years as the chief surgical assistant at a hospital
in Virginia.

       Finally, the evidence that Holy Cross put forward established that in May
2004, shortly before he quit, Singh repeatedly requested that Zych assign him some
of the extra hours arising from emergency surgeries. Zych declined, however,
because of Singh’s performance issues and her uncertainly that he could work
independently as these additional hours required. Zych also told Singh that he
could not take emergency calls unless he completed his orientation checklist, which
he never did. The record is unclear as to whether any other surgical assistants
No. 07-1738                                                                     Page 3

took calls during this time. However some of the emergency calls required the
assistance of a surgical technician, a position that typically involves fewer
responsibilities in the operating room than that of a surgical assistant, and Zych
gave these calls to a qualified technician.

        In his own motion for summary judgment, Singh argued that he had
established a prima facie case of discrimination under the indirect method. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). But he put forward
little evidence to contradict the hospital’s evidence that he was not qualified for the
roles he sought. Singh essentially pointed to one positive comment submitted by a
colleague during his performance review and a certificate showing that he received
a surgical degree in India.

       Singh also argued, however, that his evidence supported other state-law
claims not identified in his complaint. Principal among them was a claim for
negligence. Singh introduced interrogatory responses in which Holy Cross admitted
that in April 2004 he was stuck by a needle that another employee failed to discard
after it was used to administer a local anesthetic to a patient suffering from HIV
and hepatitis. Singh had mentioned this incident in his complaint, and during his
deposition he stated that it accounted for a portion of his requested damages. As for
the other state claims, though, Singh introduced no relevant evidence.

       The district court granted the hospital’s motion for summary judgment and
denied Singh’s motion. The court analyzed the discrimination claims under the
indirect method of proof, see Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538 (7th
Cir. 2007) (explaining that indirect method of McDonnell Douglas applies equally to
claims under Title VII and § 1981), and concluded, based on the undisputed
evidence, that Singh was not performing up to the hospital’s legitimate
expectations, that he was not similarly situated to the individuals given the full-
time position and emergency calls, and that he could not prove that the reasons
given by Holy Cross for passing him over in both instances—his performance issues,
relative inexperience, inability to work independently, and poor attitude—were
pretextual. The court declined, however, to address Singh’s state-law claims
because he did not include them in his complaint or seek to amend it. Our review is
de novo, Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 719 (7th Cir. 2005), and
like the district court we evaluate the evidence using the indirect method because
that was the sole method advocated by Singh at summary judgment, see Burks v.
Wisconsin Dept. of Transp., 464 F.3d 744, 751 n.3 (7th Cir. 2006).

       We reject Singh’s contention that the district court erred in granting
summary judgment for Holy Cross. To make out his prima facie case, Singh was
required to put forward evidence establishing, among other things, that he was
qualified for the positions he was denied. See Koszola v. Bd. of Educ. of City of Chi.,
No. 07-1738                                                                     Page 4

385 F.3d 1104, 1110 (7th Cir. 2004). And Singh did not meet this burden. As
evidenced by Zych’s declaration and Singh’s performance review, he was not
performing adequately as a part-time surgical assistant, and that was reason
enough for the hospital to conclude that he should not be made full-time or given
the added responsibilities associated with taking emergency calls. The only
evidence Singh supplied to show that he was qualified was his medical degree from
India and the single positive comment from a coworker during his evaluation, but
that evidence was not enough to establish a genuine issue given that he had no
prior experience as a surgical assistant and that the vast majority of comments
about his performance were negative. And, because Singh did not show that he
was qualified for the roles he wanted, we need not address his arguments that he
was similarly situated to the persons selected or that the hospital’s explanations for
its decisions were pretextual. See Bio v. Fed. Express Corp., 424 F.3d 593, 596 (7th
Cir. 2005).

       On the other hand, we do agree with Singh that the district court should
have addressed his state-law claims. At the hospital’s urging, the court concluded
at summary judgment that the state claims were not part of the case because Singh
never explicitly identified those claims in his complaint and never sought to amend.
But we have held that any issue that is “(pre)tried by implied consent of the parties”
is properly before the district court on a motion for summary judgment, regardless
whether the complaint was amended to include it. Torry v. Northrop Grumman
Corp., 399 F.3d 876, 879 (7th Cir. 2005). With one exception, though, Singh’s state-
law claims are frivolous, so it makes no difference that the district court did not
reach them.

       The exception, however, is Singh’s claim that Holy Cross is liable for injuries
he sustained after he was pricked by a needle that was used on a patient with HIV
and hepatitis. Like the defendant in Torry, Holy Cross without objection engaged in
discovery on that additional claim; the hospital answered Singh’s interrogatories
about the incident and raised the matter itself during his deposition. See Torry, 399
F.3d at 879. We thus agree with Singh that this claim was before the district court
because Holy Cross impliedly consented to litigate it. Still, because it is a claim of
negligence under Illinois law, the district court, in its discretion, could have
declined to exercise supplemental jurisdiction over the claim, see 28 U.S.C.
§ 1367(a); Sellars v. City of Gary, 453 F.3d 848, 852 (7th Cir. 2006), especially once
the federal claims were dismissed, see 28 U.S.C. § 1367(c)(3); Christensen v. County
of Boone, 483 F.3d 454, 466 (7th Cir. 2007); Bilow v. Much Shelist Freed Denberg
Ament & Rubenstein, P.C., 277 F.3d 882, 896 (7th Cir. 2001). But we must remand
so that the district court can make this determination. If the court declines to
exercise jurisdiction, Singh will have 30 days to refile this claim in state court. See
28 U.S.C. § 1367(d).
No. 07-1738                                                                 Page 5

       Accordingly, we VACATE the dismissal of Singh’s claim of negligence under
state law, and REMAND for further proceedings solely as to that claim. In all other
respects the judgment of the district court is AFFIRMED.
