Li-hua Ho v. Abbott Laboratorie
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. [6676157-1] [6676157] [14-3277]
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NONPRECEDENTIAL DISPOSITION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 June 26, 2015*
Decided July 8, 2015
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14‐3277
LI‐HUA OLIVIA HO,
Plaintiff‐Appellant,
v.
ABBOTT LABORATORIES, INC.,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 11 C 9257
Edmond E. Chang,
Judge.
O R D E R
Li‐Hua Olivia Ho, a former quality‐assurance engineer at Abbott Laboratories,
appeals the grant of summary judgment against her in this action. Her primary
complaints are based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–
2000e‐17, and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634; she
asserts that Abbott discriminated against her based on her race (Asian) and age (54 at the
time Abbott fired her). Ho failed, however, to point to evidence that would permit a trier
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. The appeal is therefore submitted on the briefs and record. See FED. R.
APP. P. 34(a)(2)(C).
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of fact to find that Abbott’s actions were motivated by her national origin or age, or to
support any of her other theories of relief. Moreover, Abbott presented undisputed
evidence that it had a valid reason for firing her. We therefore affirm the district court’s
judgment.
I
We review the evidence in the light most favorable to Ho, the party opposing
summary judgment. See Kvapil v. Chippewa Cnty., Wis., 752 F.3d 708, 712 (7th Cir. 2014).
Ho began working at Abbott in 1996. She was transferred in 2005 to the position of
quality engineer, a job requiring her to ensure that pharmaceutical products met the
company’s manufacturing standards. Abbott gave Ho one year to adjust to her new role,
but by 2007 she still was not fully meeting the company’s expectations. Her supervisor
noted that she needed to become more knowledgeable about the company’s procedures
for making a batch of pharmaceuticals, warned her in writing that failure to improve her
performance could result in her dismissal, and assigned her to take “batch‐record review
training” and then pass a test about the process. Along with at least two other Caucasian
male employees, Ho completed the training and took the test. She failed it (scoring only
47 percent) but was allowed to retrain and retake the test, though Abbott expected a
perfect score that time. Ho was the only employee who retook the test, but she failed it
again, achieving only a 60 percent.
During her training, Ho ran into more trouble after she destroyed certain
computer “screen shots” of mistakes she had made on one of her training modules. Ho
was supposed to keep the screen shots in her training records. She had, however,
received permission from her training supervisor to remove them briefly for the purpose
of making copies for herself. Afterwards, when they could not be found, she told Abbott
that she might have shredded them as scrap. Abbott regarded this as a serious infraction.
Based on her inability to pass the test and the screen shot incident, Abbott fired Ho. After
her departure, other employees took over her work, and eventually Abbott hired a
younger Caucasian man to fill her position.
II
Ho sued Abbott under Title VII and the ADEA, claiming discrimination based on
race and age. She also asserted violations of the Employee Retirement Income Security
Act, 29 U.S.C. §§ 1001– 1461, and the Racketeer Influenced and Corrupt Organization
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Act, 18 U.S.C. §§ 1961–1968. Finally, she raised retaliation and defamation claims, but
she has abandoned those two arguments on appeal and so we do not comment on them.
The district court granted Abbott’s motion for summary judgment on the Title VII
and ADEA claims. It addressed the race and age discrimination claims together and
concluded that Ho could not make out a prima facie case of discrimination under the
indirect method, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), because
she presented no evidence to show that she met Abbott’s legitimate expectations or that
a similarly situated employee outside the protected class was treated more favorably.
Nor, the court added, did she present any evidence to show that Abbott’s reasons were
pretextual. She had no evidence that could meet the requirements of the direct method
of proving discrimination. Finally, in a nod to our more recent decisions seeking to
simplify the appropriate framework of analysis in discrimination cases, see Hitchcock v.
Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013); Coleman v. Donahoe, 667 F.3d 835, 863
(7th Cir. 2012) (Wood, J., concurring), the court concluded that Ho did not present any
evidence to support a reasonable inference that Abbott had discriminated against her.
About six weeks after she filed her notice of appeal, Ho filed several motions in
the district court. In them, she complained about various discovery violations and
requested, among other things, leave to reinstate her ERISA claim. The district court
construed her filings as motions for relief from judgment under Federal Rule of Civil
Procedure 60(b) and denied them on the ground that she could have presented those
arguments earlier in the proceedings.
III
On appeal Ho seems to challenge the district court’s conclusion that she did not
establish a prima facie case of discrimination. She also contends that there is a fact
question about whether she was meeting Abbott’s expectations. She maintains that
competency with the batch‐record training process was not a legitimate expectation
because the process did not appear in her job description, and she accuses Abbott of
misgrading her second test by using the wrong answer key.
We apply the same analysis to Ho’s ADEA and Title VII claims. See Nagle v. Vill. of
Calumet Park, 554 F.3d 1106, 1114 n.3 (7th Cir. 2009). To show discrimination under either
statute, Ho needed to provide evidence that she was meeting Abbott’s expectations and
that similarly‐situated younger or non‐Asian employees were treated more favorably.
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See Huang v. Contʹl Cas. Co., 754 F.3d 447, 450 (7th Cir. 2014); Montgomery v. Am. Airlines,
Inc., 626 F.3d 382, 394 (7th Cir. 2010).
As the district court correctly observed, Ho failed to present evidence that would
support a finding that she was meeting Abbott’s legitimate expectations. The omission
from her written job description of any reference to batch‐record training does not mean
that this task was not among Abbott’s legitimate employment expectations. See Huang,
754 F.3d at 451; Renken v. Gregory, 541 F.3d 769, 773 (7th Cir. 2008). Ho’s accusation that
Abbott used the wrong answer key to grade her second test similarly falls short. The
evidence to which Ho points does not suggest that the test was administered in a
discriminatory fashion, nor does it even indicate whether Abbott used the wrong answer
key.
For the first time on appeal, Ho argues that she can identify a similarly situated
employee who received more favorable treatment—the younger Caucasian man who
replaced her after she was fired. But Ho waived this argument by not first raising it
before the district court. See Hayes v. City of Chi., 670 F.3d 810, 815 (7th Cir. 2012). In any
event Ho failed to meet her burden in the district court of identifying a person who
failed to meet the company’s expectations, but nonetheless was allowed to keep her job.
See Hanners v. Trent, 674 F.3d 683, 692–93 (7th Cir. 2012); Montgomery, 626 F.3d at 395.
Ho also argues that the district court wrongly concluded that Abbott’s proffered
reason for firing her was pretextual. But because Ho has not established a prima facie case
or provided evidence that would allow for an inference of discriminatory motive, we
need not reach her argument about pretext. See Montgomery, 626 F.3d at 394.
Ho’s last argument is that the district court erred when it denied her Rule 60(b)
motion, because, as a pro se litigant, she should not be bound by strict procedural
requirements. But we do not have jurisdiction to review those rulings because Ho filed
her notice of appeal immediately after the district court entered the final judgment and
before she filed the Rule 60(b) motions, and she did not amend the notice of appeal to
include the denial of the Rule 60(b) motions. See Trade Well Intʹl v. United Cent. Bank, 778
F.3d 620, 625 (7th Cir. 2015) (no jurisdiction to review propriety of sanction issued after
notice of appeal was filed); Sosebee v. Astrue, 494 F.3d 583, 590 (7th Cir. 2007) (no
jurisdiction over postjudgment motion decided after notice of appeal was filed).
We have considered Ho’s remaining arguments and none has merit. The district
court’s judgment is AFFIRMED.
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