                           In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-4291
DENNIS HART and SCOTT BASKEN,
                                         Plaintiffs-Appellants,
                               v.


TRANSIT MANAGEMENT OF RACINE, INC., et al.,
                                        Defendants-Appellees.
                         ____________
           Appeal from the United States District Court
                for the Eastern District of Wisconsin.
         No. 01-CV-766—Rudolph T. Randa, Chief Judge.
                         ____________
      ARGUED JUNE 14, 2005—DECIDED AUGUST 17, 2005Œ
                       ____________


    Before WOOD, WILLIAMS, and SYKES, Circuit Judges.
  PER CURIAM. This case began when Dennis Hart and
Scott Basken sued their employer, Transit Management
of Racine, Inc. (TMR), and their union, Teamsters Local
43 (the union), alleging racial discrimination, retaliation,
and a “hybrid” claim. (Hart and Basken also named as
defendants TMR’s parent company, general manager, and
senior mechanic. We refer to these defendants and the


Œ
  This opinion was originally issued as an unpublished order. The
court has granted a motion to publish filed by a member of the
bar.
2                                                No. 02-4291

company collectively as TMR.) The district court dis-
missed Basken’s part of the complaint for failure to state a
claim and later ordered summary judgment against Hart.
Basken, with the aid of counsel, and Hart, who is now
proceeding pro se, challenge the respective rulings in this
appeal.


                              I
  The following facts are undisputed. Hart, who is African
American, and Basken, who is white, both worked as
mechanics for TMR. At the time of the events giving rise to
this lawsuit, a collective bargaining agreement (CBA)
between TMR and the union specified that the company
would assign overtime based on seniority. The CBA also
classified separately the jobs of “mechanic” and “mechanic’s
helper.” Among the seven TMR mechanics, Hart was less
senior than four white men, but more senior than Basken,
the junior mechanic. In spite of his relatively low seniority,
however, Hart was second only to the senior mechanic in
hours of overtime worked during the period from January
3, 1998, to July 13, 2002.
  Hart and Basken, represented by the same counsel in the
district court, filed a joint complaint identifying 42
U.S.C. § 1981 as the sole basis for their claims. Hart alleged
that, despite the CBA seniority system, TMR refused on
account of his race to give him overtime. Although the
complaint alleged that the senior mechanic constantly
discriminated against Hart when awarding coveted over-
time, it cited just one such incident: on December 17, 2000,
mechanic’s helper Julie Kalk, who is white, was given
overtime that Hart wanted and insisted should have gone
to a mechanic. This incident prompted Hart to file a
grievance, which Basken supported. Hart and Basken
alleged that TMR and the union responded to Hart’s
grievance by instituting mandatory overtime and thus
No. 02-4291                                                  3

forcing Basken, as the junior mechanic, to work overtime
that he did not want.
  In response to TMR’s motion to dismiss under FED. R.
CIV. P. 12(b)(6), the district court concluded that § 1981 does
not support recovery when a plaintiff claims that
he suffered retaliation for supporting another employee’s
charge of discrimination, rather than discrimination on
account of his own race. The court thus dismissed the entire
complaint as to Basken. Hart’s claims proceeded
to summary judgment, which the court granted in favor of
TMR and (without opposition) the union. The court rea-
soned as to TMR that Hart had failed to establish a prima
facie case of discrimination under McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), because he lacked evidence of
a similarly situated employee from outside the protected
class who received preferential treatment. As to the union,
the court found that Hart produced no evidence that TMR
breached the CBA.


                              II
  We begin with the district court’s dismissal of Basken’s
retaliation claim against TMR and the union. Our review is
de novo. See Centers v. Centennial Mortgage, Inc., 398 F.3d
930, 933 (7th Cir. 2005).
  Retaliation is grounds for relief under Title VII of the
Civil Rights Act of 1964, see 42 U.S.C. § 2000e-3(a), which
“makes it unlawful for any employer to discriminate against
an employee for opposing a practice made unlawful by the
Act,” Fine v. Ryan Intern. Airlines, 305 F.3d 746, 751 (7th
Cir. 2002); see Stutler v. Illinois Dep’t of Corr., 263 F.3d
698, 702 (7th Cir. 2001), but § 1981, in contrast, encom-
passes only racial discrimination on account of the plaintiff’s
race and does not include a prohibition against retaliation
for opposing racial discrimination, see Little v. United Tech.,
Carrier Transicold Div., 103 F.3d 956, 960-61 (11th Cir.
4                                                No. 02-4291

1997). Throughout the proceedings in the district court,
however, Basken limited his retaliation claim to one based
on § 1981.
  Basken was not required by FED. R. CIV. P. 8 to plead
a legal theory, and therefore the relevant question under
Rule 12 on appeal is “whether any set of facts consistent
with the complaint would give him a right to recover, no
matter what the legal theory.” Small v. Chao, 398 F.3d 894,
898 (7th Cir. 2005). A plaintiff may initially plead a legal
theory unsustainable on the facts contained in the com-
plaint but later survive dismissal by suggesting, in response
to a motion under Rule 12(b)(6), a theory that would give
rise to relief on facts not inconsistent with those in the
complaint. See Williams v. Seniff, 342 F.3d 774, 792 (7th
Cir. 2003). Moreover, he may even be able to revive a claim
dismissed under Rule 12(b)(6) by asserting on appeal new
facts and theories consistent with the original complaint.
See Snodderly v. R.U.F.F. Drug Enforcement Task Force,
239 F.3d 892, 902 (7th Cir. 2001); Dawson v. General
Motors Corp., 977 F.2d 369, 372-73 (7th Cir. 1992). Basken,
though, has not wavered from his reliance on § 1981. At
oral argument, counsel continued to insist that Basken
seeks relief under § 1981 exclusively, and thus Basken has
waived any other colorable basis for relief and doomed his
retaliation claim. See Voelker v. Porsche Cars, Inc., 353 F.3d
516, 527 (7th Cir. 2003) (discussing waiver). Given counsel’s
position (which is of course attributable to Basken), we have
no cause to question the dismissal of the complaint as to
Basken.
  We thus turn to Hart and begin with his claim against
the union. The complaint itself is impenetrable, but in
moving for summary judgment the union read it to include
a “hybrid” claim under § 301 of the Labor Management
Relations Act, 29 U.S.C. § 185, and § 8(b) and § 9(a) of the
National Labor Relations Act, 29 U.S.C. §§ 158(b), 159(a).
Hart has never disagreed with that reading, and thus
No. 02-4291                                                5

we accept it. See Torry v. Northrop Grumman Corp., 399
F.3d 876, 879 (7th Cir. 2005) (explaining that parties’
litigation conduct may refine claims pleaded in complaint).
Such a claim arises when an employer breaches a CBA and
the aggrieved employee’s union breaches its duty to repre-
sent the employee fairly in resolving the dispute with the
employer. See, e.g., Neal v. Newspaper Holdings, Inc., 349
F.3d 363, 368-69 (7th Cir. 2003); Johnson v. Graphic
Communications Intern. Union, 930 F.2d 1178, 1181 (7th
Cir. 1991). Hart, however, virtually ignored the union at
summary judgment, and apart from a passing reference
to the CBA, he says nothing in his opening appellate
brief to suggest the presence of a “hybrid” claim. Hart
did not even identify the elements of a “hybrid” claim until
his reply brief, and then only because the union’s brief
prompted him to do so. Arguments that first appear in a
reply brief are deemed waived, Carter v. Tennant Co., 383
F.3d 673, 679 (7th Cir. 2004), and, regardless, the summary
judgment record is devoid of evidence suggesting that the
union’s treatment of Hart was arbitrary, discriminatory, or
in bad faith.
  That leaves Hart’s claim against TMR for discrimination.
We review the grant of summary judgement de novo,
construing the facts in the light most favorable to Hart
as the opposing party. See Russell v. Harms, 397 F.3d 458,
462 (7th Cir. 2005). To survive summary judgment on a
claim of employment discrimination under § 1981, a
plaintiff relying on the indirect method must first demon-
strate a prima facie case by producing evidence that he is a
member of a protected class, was qualified for the benefit he
sought, was denied the benefit, and was treated less
favorably than a similarly situated employee outside the
protected class. Blise v. Antaramian, 409 F.3d 861, 866 (7th
Cir. 2005); Herron v. DaimlerChrysler Corp., 388 F.3d 293,
299 (7th Cir. 2004). Once a prima facie case is shown,
McDonnell Douglas requires the defendant to articulate
6                                                No. 02-4291

a nondiscriminatory reason for the adverse employment
action; the plaintiff then has the opportunity to produce
evidence demonstrating that the reason is a pretext. Blise,
409 F.3d at 867. Here there is no dispute that Hart is a
member of a protected class and was qualified to perform
the overtime given to Kalk instead of to him on December
17, 2000. But the district court, focusing solely on the
last element of the prima face case, reasoned that Hart and
Kalk, though racially diverse, were not similarly situated
because of their different job classifications. Thus, the court
concluded, Hart could not establish that he was treated less
favorably than a similarly situated person outside the
protected class.
  We think that the district court was shaving matters too
thinly. In our view, Hart met his burden to demonstrate
a prima facie case of discrimination. Counsel for the
union (who presented oral argument regarding Hart’s
claims on behalf of both the union and TMR) concedes that
Hart established that on December 17 TMR offered over-
time to the four senior mechanics and then to Kalk, the
senior mechanic’s helper. Even if the management-rights
clause of the CBA allowed TMR to designate the class of
employee—mechanic or mechanic’s helper—that would
receive each overtime offer, the shift from white employees
holding one job classification to a white employee in a
different job classification is at least circumstantial evi-
dence of discrimination. The shift prevented Hart, the next-
senior mechanic, from receiving overtime already offered to
every senior white employee sharing his job classification.
TMR has never contended that Kalk was more senior than
Hart; in fact, counsel conceded at oral argument that
nothing in the record explains the shift between categories
of employee. Thus TMR failed to advance a nondiscrimina-
tory reason for what circumstantial evidence shows to be a
discriminatory employment action.
No. 02-4291                                            7

                          III
  The district court’s judgment is VACATED solely as to
Hart’s discrimination claim against TMR, and the case
is REMANDED for further proceedings on that single
claim. In all other respects, the judgment is AFFIRMED.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—10-13-05
