                             In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-2832

A NGELA T YSON,
                                                Plaintiff-Appellant,
                                 v.

G ANNETT C O ., INC.,
                                               Defendant-Appellee.
                          ____________
        Appeal from the United States District Court for the
         Southern District of Illinois, Indianapolis Division.
        No. 1:05-cv-1848-RLY-TAB—Richard L. Young, Judge.
                          ____________

       A RGUED JULY 8, 2008—D ECIDED A UGUST 19, 2008
                          ____________



  Before B AUER, C OFFEY, and R OVNER, Circuit Judges.
   C OFFEY, Circuit Judge. Plaintiff Angela Tyson sued her
employer Gannett Company, Inc., alleging that it had
discriminated against her on the basis of her race—she
is black—and disability and further retaliated against
her for filing a disability charge of discrimination by
refusing to let her return to work when she wanted to after
she had suffered a back injury. During the course of the
litigation, she abandoned all avenues of relief except for
2                                               No. 07-2832

her two race discrimination claims brought under 42 U.S.C.
§ 1981 and 42 U.S.C. § 2000e-2. The district court granted
summary judgment in favor of Gannett on both claims.
The court found that Tyson failed to make out a prima
facie case because she failed to present sufficient evidence
to establish that a similarly situated white employee
was treated more favorably. We affirm.
  Tyson’s employer, Gannett, owns the Indianapolis Star
and News newspaper. The Star hired Tyson in 1998. She
started as a mailer helper and was promoted to mailer
assistant. In both jobs her duties included assembling the
newspaper, stacking it, and loading it onto machines in
preparation for distribution. Generally, mailer assistants
need to be able to stand 90% of the time, walk 10% of the
time, and lift, carry, push, and pull up to 35 pounds. The
mailer assistants’ specific tasks change from shift to shift,
and some are more physically demanding than others.
   Like all her fellow mailer assistants at the Star, Tyson
is a member of the Teamsters Indiana Mailers Union Local
2001. The collective bargaining agreement between the
Union and the Star requires that tasks be assigned to mailer
assistants on the basis of “priority” (seniority). Thus, the
most senior mailer assistant on a shift is allowed to
choose the task she or he wishes to perform, and so on
down the line until all of the work assignments for the
shift have been allocated. The most senior mailer assistants
can avoid doing the most strenuous work on every shift
they work, but there is no guarantee that the less strenuous
will be available for mailer assistants with less seniority
who request it. When it is available, special “light duty”
No. 07-2832                                               3

work can be given to mailer assistants who are injured or
who have medical restrictions because of health problems.
  On October 3, 2002, Tyson slipped and fell at work and
was injured. She then took sick leave for a period of time.
After she returned to work with medical restrictions, she
was assigned light work. In December of 2002, her doctor
discovered she had injured her arm in the fall and imposed
additional work restrictions. In February of 2003, Tyson
had surgery to remove a cyst on her tail bone, which was
unrelated to her fall. After that surgery, she claims to
have had chronic back pain. Tyson took a short-term
disability leave beginning in February of 2003.
  In June of 2003, Tyson was released to return to work,
but the Star had no openings for her that she could perform
at that time with her restriction of not lifting more than
25 pounds. A medical report of October 2003, stated that
she could work if she was provided with a counter
brace for her right upper extremity and had a lifting
restriction of 35 pounds. When she no longer needed the
brace, Tyson returned to work as a mailer assistant in
November with a 25-pound lifting restriction and was
assigned to do light duty work. Then, in 2004, her back
began to cause her discomfort. At that time, no light duty
work assignments were available and she sought and
obtained both short and long-term disability benefits. She
remains on long-term disability to this day while still an
employee of the Star.
  Tyson’s sole remaining claim is that Gannett discrimi-
nated against her on the basis of race by not permitting her
to work from June 9, 2003, until November 23 of the same
4                                                 No. 07-2832

year while she was under a medical restriction barring her
from lifting more than 25 pounds. After discovery was
completed, Gannett moved for summary judgment and
the court granted the same. Our review is de novo, and
we will affirm if, after viewing the evidence in the light
most favorable to Tyson, there are no genuine issues of
material fact and, thus, the defendant is entitled to judg-
ment as a matter of law. See Dorsey v. Morgan Stanley, 507
F.3d 624, 627 (7th Cir. 2007).
   Tyson sued Gannett under both 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
Gannett argues that Tyson cannot bring a Title VII claim
because, it says, she did not file a charge of race discrim-
ination with the Equal Employment Opportunity Commis-
sion (EEOC) and, thus, has failed to exhaust her adminis-
trative remedies. A plaintiff can sue under Title VII only
if she first has filed a charge of discrimination with the
EEOC. See Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726
(7th Cir. 2003). Tyson alleged in her complaint—and
Gannett admitted in its answer—that she “filed a claim
of disability discrimination” against Gannett in October
2003, but there is no evidence that she filed charge of
discrimination on the basis of race. Tyson has failed to
present any evidence disclosing whether she has filed a
Title VII race discrimination claim, thus Gannett is
entitled to summary judgment on Tyson’s Title VII claim
because she failed to comply with the EEOC requirement.
Her Section 1981 claim survives, however, because the
filing of a discrimination charge is not a prerequisite to
pursuing that claim in court. See Fane v. Locke Reynolds,
L.L.P., 480 F.3d 534, 539 (7th Cir. 2007). Thus, we are left
No. 07-2832                                                 5

with the question of whether there is any evidence to
support her claim of race discrimination.
  Tyson has chosen to prove her case using the indirect
method set forth in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). The parties do not dispute that Tyson
meets the first three prongs of the four-part McDonnell
Douglas test—(1) she is a member of a protected class,
(2) she was meeting Gannett’s legitimate job requirements,
and (3) she suffered an adverse employment action. See
Fane, 480 F.3d at 538; see also Humphries v. CBOCS W., Inc.,
474 F.3d 387, 403-04 (7th Cir. 2007) (noting the McDonnell
Douglas test applies to discrimination claims brought
under Section 1981), aff’d, 128 S. Ct. 1951 (2008). They
disagree, however, about whether Tyson can establish
the fourth prong by proving that a Caucasian employee,
Janet Harvey, was similarly situated and that she was
treated more favorably. See Jones v. Union Pacific Railroad
Company, 302 F.3d 735, 741 (7th Cir. 2002). Tyson asserts
that Harvey was allowed to work as a mailer assistant
when she had a 25 pound lifting restriction. To be
similarly situated, Harvey and Tyson must be alike “in all
material respects,” so as to suggest that Tyson “was
singled out for worse treatment.” Henry v. Jones, 507
F.3d 558, 564 (7th Cir. 2007) (quoting Crawford v. Ind. Harbor
Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006)).
  The record demonstrates that Tyson and Harvey were
not similarly situated because they had different seniority
status, the determining factor in job assignment under
the Union’s collective bargaining agreement. Harvey
began working for the Star approximately three years
6                                                  No. 07-2832

before Tyson. Iris Hayden, Senior Human Resources
Business Consultant for Gannett, testified in her affidavit
that Harvey was in the top half of mailer assistants in
terms of seniority, while Tyson was in the bottom half.
Under the seniority system, the most senior mailer assis-
tant gets to select which job functions he or she will
perform on a given shift. Some mailer assistants such as
Harvey have sufficient seniority to guarantee that they
can avoid having to perform duties that require lifting
more than 25 pounds. According to Hayden, Harvey had
enough seniority to ensure that she would only have to
work on tasks within her restrictions. Tyson attempted to
refute this evidence in her affidavit, which states that,
before her fall, she had sufficient seniority to select less
strenuous tasks. But, just because she has been able to
avoid certain tasks in the past, it does not mean that she
will always be able to accomplish this, because the
nature of her work assignments frequently changes from
shift to shift, and thus her ability to choose is based upon
the seniority of the other mailer assistants assigned to the
same shift, and furthermore more than half of all mailer
assistants are more senior than Tyson.
   In this court’s recent opinion in Filar v. Board of Education
of the City of Chicago, 526 F.3d 1054, 1061-62 (7th Cir. 2008),
Judge Flaum, writing for the panel, said that: “In some
circumstances, differences in seniority will preclude a
showing that two employees are ‘similarly situated’. . . . To
the extent that seniority is a simple proxy for something
like the length of employment and is something that
an employer must credit when making employment
decisions, differences in seniority will tend to make two
No. 07-2832                                             7

employees dissimilar for purposes of the plaintiff’s prima
facie case.” Under this reasoning, Tyson and Harvey are
not similarly situated and, therefore, summary judgment
was appropriate because Tyson failed to prove her
prima facie case of race discrimination.
                                               A FFIRMED.




                          8-19-08
