Opinion
Cause No. IP 99-0341-C H/G.
November 20, 2000.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Edward Peal has sued his employer, the United States Department of Housing and Urban and Development ("HUD") for race discrimination in violation of Title VII of the Civil Rights Act of 1964. According to the usual convention, Peal has named as defendant the Secretary of the department, Andrew Cuomo. Peal alleges that HUD denied him a promotion to a position in its multifamily housing division because he is African-American. In support of his claim, Peal complains that the decision-maker once told him that he sounded like "a little boy whining and complaining." Peal also contends that he was better qualified than the employee whom HUD promoted, and that HUD deviated from its own policies in the selection process. HUD asserts that it did not promote Peal because he was not the best qualified candidate for the job. As explained below, HUD is entitled to summary judgment. A reasonable jury could not find on this record that HUD's decision to promote someone other than Peal was based on Peal's race.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a summary judgment motion, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). Rather, the proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 512 (7th Cir. 1996).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
Undisputed Facts
For purposes of HUD's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to plaintiff Peal, the non-moving party.
Peal has worked in HUD's Indianapolis office since 1987. Peal started as a GS-7 Housing Technician. Peal Dep. 18-21. In that job, he reviewed appraisals for single family housing. Id. In March 1992, Peal became a Single Family Supervisory Appraiser. Def. Ex. 2. During February and part of March 1995, Peal served as the Chief Appraiser for Valuation during an agency reorganization. Id. This position involved supervision of both single family and multifamily appraisals. Id. On March 19, 1995, Peal became the Acting Chief of Single Family Production at level GS-13. Id. Peal received a permanent appointment to that position in September 1995. Id.
As Single Family Production Chief, Peal supervised between six and ten employees who performed functions in mortgage credit, valuation, architecture and engineering, and "clerk-type activities" for single family housing projects. Peal Dep. 40-41. Peal previously had supervised ten employees in his roles as Single Family Supervisory Appraiser and Chief Appraiser for Valuation. Def. Ex. 2.
Throughout his employment at HUD, Peal has gained experience in positions other than his own by covering or "detailing" different positions from time to time. As the Single Family Production Chief, Peal's supervisor was the Chief of Valuation, who was responsible for both single family and multifamily functions. Peal Dep. 28. Peal was formally detailed to act as Chief of Valuation in his supervisor's absence on five to seven occasions. Id. Peal was detailed to act as Chief, Valuation Branch and Housing Programs Branch, Multifamily Housing Division, for about 10 days in 1994. Def. Ex. 6.
On November 12, 1996, HUD issued a Notice of Position Vacancy for the position of Chief, Production Branch, Field Office Housing, Multifamily Division ("Multifamily Chief") in Indianapolis. Buckmaster Aff. ¶¶ 4, 6; Def. Ex. 8. The position was graded as a level GS-13/14, Def. Ex. 8, meaning it could be filled at either the GS-13 or GS-14 level. The Multifamily Chief is responsible for a variety of multifamily housing functions. Id. For example, the Multifamily Chief supervises HUD employees who process applications and make underwriting recommendations for HUD multifamily mortgage insurance programs. Id. Those insurance programs involve complex financial transactions including tax credits, subsidy layering, and bond financing. Id. The Multifamily Chief also serves as the principal advisor to the Multifamily Director on underwriting issues in the geographic area to which the Multifamily Chief is assigned. Id. The Multifamily Chief reports to the Multifamily Director. Id.
Peal applied for the Multifamily Chief position on November 26, 1996. Def. Ex. 2; Peal Dep. 91. Peal was a level GS-13, step 2 at that time. Def. Ex. 2. Four other HUD employees submitted timely applications for the Multifamily Chief position. Buckmaster Aff. ¶ 8.
HUD's selection process for the Multifamily Chief job involved several formal steps, as is common in federal civil service personnel matters. HUD's Merit Staffing Policy governed the process. Buckmaster Aff. ¶ 7; see also Def. Ex. 10.
At the first step in the process, Michelle Buckmaster, a Personnel Management Specialist from HUD's Philadelphia office, conducted a two-tier review of the applications. First, Buckmaster screened the five applications for eligibility by analyzing whether each application was complete and whether each applicant had fulfilled the "time in grade" requirements. Buckmaster Aff. ¶ 9. Second, she compared the applications to the vacancy announcement to determine if the applicants met the specialized experience requirements for each grade level of the Multifamily Chief position. Id; see also Def. Ex. 8 ("To be creditable, specialized experience must have been at least equivalent to the next lower grade level."). In evaluating an application, Buckmaster considered the "Quality Ranking Factors" identified in the vacancy announcement. Buckmaster Aff. ¶ 9. For the Multifamily Chief position, the quality ranking factors were described as a demonstrated ability in the following areas: (1) relationships with HUD customers and partners; (2) leadership of a diverse team of employees; (3) communication skills; (4) knowledge of and experience in multifamily housing; and (5) human resources strategies. Def. Ex. 8.
Upon completing her review of the applications, Buckmaster ultimately determined that only two of the five candidates — Robert Nance and Mary Owens — were qualified to be listed on the "Selection Roster" or "Best Qualified List" for the Multifamily Chief position at level GS-14. Buckmaster Aff. ¶ 14, 18.
Buckmaster initially found that only Owens was qualified for an appointment at the GS-14 level. Henry Levandowski, the selecting official for the promotion, informed Buckmaster that Nance was his first choice for the position, and he asked why Nance was not on the GS-14 roster. Buckmaster reviewed Nance's application again and concluded that both Owens and Nance were sufficiently qualified to be placed on the Best Qualified List at level GS-14. See Buckmaster Aff. ¶¶ 14, 17-18.
Buckmaster concluded that Peal was not qualified for an appointment at level GS-14. Peal was a GS-13 Single Family Production Chief when he applied. Buckmaster Aff. ¶ 15. Buckmaster determined that he had only one month of GS-13 experience related to multifamily production. Id.
Peal testified that he believed he had the equivalent of one to two years of multifamily experience. Peal Dep. 125-27. He has asserted that he obtained this experience as a result of being detailed to act temporarily as the Chief of Valuation, which required him to supervise the valuation function in the multifamily housing area from time to time, and from performing certain unspecified tasks while he was the Single Family Production Chief. Id. Peal's testimony does not create a genuine issue of fact as to whether he was qualified for the multifamily position at the GS-14 level. (Both sides agree he met the qualification requirements for the position at the GS-13 level.) In the detailed position, Peal temporarily supervised a large group of employees, including those who did valuations on multifamily projects. Peal's vague testimony about the extent of his detail assignments and other unidentified work being equivalent to one to two years of multifamily housing experience is not sufficient to create a genuine issue of fact on his qualifications at the GS-14 level. See, e.g., Williams v. Williams Electronics, Inc., 856 F.2d 920, 924 (7th Cir. 1988) (employee's self-interested assertions regarding his abilities are not sufficient in themselves to raise a genuine issue of material fact).
However, Buckmaster determined that all five candidates, including Peal, were qualified for the Multifamily Chief position at the GS-13 level. Buckmaster Aff. ¶ 11. Accordingly, Buckmaster listed all five candidates on the level GS-13 "Best Qualified List." Buckmaster Aff. ¶ 13.
On December 10, 1996, Buckmaster sent the GS-13 and GS-14 Best Qualified Lists, along with the candidates' applications, to the "Selecting Official" for the Multifamily Chief position, Harry Levandowski. Buckmaster Aff. ¶ 12. Levandowski interviewed all candidates on both Best Qualified Lists. Levandowski Dep. 57, 94.
After interviewing and evaluating the candidates, Levandowski selected Nance, who is African-American, for the Multifamily Chief vacancy. Levandowski Dep. 88; Nance Aff. ¶¶ 1,5. However, Nance had also applied for and was selected for a Multifamily Chief opening in Cleveland, Ohio. Nance was a Multifamily Team Leader at the time he was selected for both Multifamily Chief positions. Nance Aff. ¶ 6. He elected to take the Cleveland position. Id.
After learning that Nance was not available, on March 3, 1997, Levandowski selected Owens for the Multifamily Chief position in Indianapolis. Levandowski Dep. 56. Owens, who is Caucasian, was Levandowski's second-choice for the position, after Nance. Levandowski Second Aff. ¶ 4. As Owens' first-line supervisor, Levandowski had personal knowledge of Owens' performance. Levandowski Dep. 58; Levandowski Second Aff. ¶ 4. Levandowski testified that he selected Owens based on the following factors: (1) she had extensive multifamily experience; (2) she had current and previous supervisory experience; (3) she had been serving as the Acting Multifamily Chief for two to four months; (4) she had made substantial improvements with HUD's outside clients; (5) she had substantially reduced the time for processing FHA insurance applications; and (6) she was performing well in her role as the Acting Multifamily Chief. Levandowski EEO Aff. at 2; Levandowski Aff. ¶ 7; Levandowski Dep. 58, 61.
Levandowski testified that multifamily experience was important for the Multifamily Chief position, and that a person who lacked multifamily experience would not be as effective in that role as a person with multifamily experience. Levandowski Dep. 155-57. In Levandowski's view, Peal lacked substantive multifamily housing experience. Levandowski Dep. 155; Levandowski Aff. ¶ 8. Although Peal had gained limited multifamily experience through temporary assignments, he had never held a permanent multifamily housing position. See Def. Ex. 2.
Peal believes that he was better qualified than Owens to be Multifamily Chief. According to Peal, the Multifamily Chief position is primarily a supervisory position, and he had more supervisory experience than Owens. Peal Dep. 127, 135. Peal rates himself as superior to Owens in the areas of relationships with customers, employee leadership, communication skills, and human resources strategies. Peal Dep. 134-35, 137, 140. Peal admits, however, that Owens was better qualified than he with respect to knowledge of and experience in multifamily housing. Peal Dep. 139-40. Peal acknowledges that Owens had eight to ten years of multifamily experience. Id.
Peal contends that HUD failed to follow its own policies in the selection process for the Multifamily Chief position because it did not analyze applications in the manner described in the Notice of Position Vacancy. The vacancy announcement stated that "eligible candidates meeting the minimum qualifications requirements and the Selective Placement Factor(s) will be further evaluated by comparing their total background and their responses to the [quality ranking factors] listed above to a crediting plan and points will be assigned accordingly." Def. Ex. 8. The vacancy announcement provided for the double-weighting of certain of the quality ranking factors: (1) relationships with HUD customers and partners; (2) leadership of a diverse team of employees; and (3) communications skills. Id. The quality ranking factor related to knowledge of and experience in multifamily housing was not double-weighted. Id.
HUD did not evaluate candidates for the Multifamily Chief position under a "crediting plan," as described in the vacancy announcement. As a result, no special consideration was given to the double-weighted factors. Instead, because there were five or fewer qualified applicants for the position at both the GS-14 and GS-13 levels, all qualified applicants were placed on the respective Best Qualified Lists. See Buckmaster Aff. ¶ 11; see also Def. Ex. 10 (Merit Staffing Policy) at 99-100 ("If there are five or fewer qualified candidates, . . . no further rating is necessary. In addition, this provision will apply when a position is advertised with multiple grade levels."), 102 ("If there are five or fewer qualified candidates, the personnel representative will sign and annotate the Selection Roster that, `Candidates were not rated against the crediting plan.'")
HUD's Merit Staffing Policy provided that "if a vacancy announcement has been posted and any significant information is later found to have been omitted or in error, an amended announcement will be reposted citing the change(s) and whether or not the original applicants must refile in order to be considered." Def. Ex. 10 at 97. HUD did not repost the vacancy announcement for the Multifamily Chief position after it determined that five or fewer qualified candidates applied for the position.
Peal has also charged that Levandowski, the selecting official, was biased against him and did not treat him fairly in the interview. Peal contends that Levandowski was so inattentive during his interview that it appeared he had fallen asleep. Peal Dep. 103-07. The cited testimony stops short of asserting that Levandowski was actually asleep, but Peal testified that Levandowski closed his eyes from time to time and did not seem to hear or care about what Peal was saying.
Peal further alleges that Levandowski has referred to him in a racially derogatory manner. At one time, Levandowski and Peal had an informal mentor-mentee relationship. In August 1996, about seven months before Levandowski chose Owens over Peal for the Multifamily Chief promotion, Levandowski became aware of a situation in which Peal had responded to discovering an underwriting problem by sending the following e-mail message to his supervisor and two coworkers:
How come nobody included me in this little situation? This is not fair. As Chief of Production I want to be included in this type of thing. Before any decision is made of [sic] this I want some input.
Def. Ex. 23. When Peal sent the e-mail, his supervisor was out of the office and Levandowski was checking her e-mail at her request. On August 21, 1996, Levandowski read Peal's e-mail message and responded as follows:
Ed, As you know, I'm trying to forward Brenda's mail in her absence. One observation. It seems to me that you continually send the kinds of messages over the system to several addressees. As an outsider when I read this, you sound like a little boy complaining and whining. It seems to me you can ask for information and updates without making the kind of deal you do by sending . . . to so many addressees. With the appropriate answer, you can then make some fine tuning to your staff about keeping informed, etc. . . . While I know this is my perspective, as your informal mentor, I just hate to see you present a potential image of yourself that is certainly not needed and not necessarily complimentary.
Hank
Def. Ex. 24; Levandowski Dep. 151. Peal then responded to Levandowski's message:
Hank, this form of communication has been my only protection. I have been subjected to so much back biting and mistreatment that I have had to protect myself. The last 20 months have been very tough for me. I have not received the kind of respect and treatment that I have dished out. Brenda has not been very kind to me during . . . stay here and I have had to survive this situation. While most people file EEO complaints and the like, I have said a lot of prayers, documented things and protected myself as best I can.
I appreciate your being so candid, but Hank, Brenda never wanted me for this job, she has made my life hell and I survived it through the grace of God.
Def. Ex. 24.
In this lawsuit, Peal has complained about Levandowski's use of the phrase "you sound like a little boy complaining and whining" in his e-mail message to Peal. Plaintiff's Preliminary Contentions ¶ 10 (filed Jan. 14, 2000); Plaintiff's Final Contentions ¶ 10 (filed Feb. 17, 2000). On February 18, 2000, Peal's attorney deposed Levandowski and asked what he meant by the phrase. Levandowski Dep. 151. Levandowski stated, in part:
And all I simply said is that, you know, it appears to other people looking in that these are problems that you know, just sort of deal with them direct. And by sending it to a variety of addresses sort of litigating the concern, you [Peal] look like a young boy. I didn't mean a racial reference or any intent like that. I used the term little boy meaning 7, 8, 9, 10, 11, something like that.
Levandowski Dep. 151. Peal's attorney responded: "Thank you, Mr. Levandowski. But I didn't bring up the issue of racial connotation. Why did you bring up the issue of racial connotation with regard to the little boy statement?" Id. at 151-52. Levandowski replied: "Because that's the context, I guess you could use it." Id. at 152. Later, in response to a question by HUD's attorney, Levandowski agreed that the fact that he was in a deposition for a racial discrimination case could contribute to his statement. Id. at 169.
Discussion
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In general, a Title VII plaintiff may prove his case through direct or indirect evidence. Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Peal contends he can prove his case under both methods.
I. Direct Evidence Analysis
To survive summary judgment under the direct evidence approach, plaintiff must present sufficient evidence to allow a jury to conclude reasonably that the adverse employment action would not have occurred but for the plaintiff's protected characteristic. Robin v. Espo Engineering Corp., 200 F.3d 1081, 1089 (7th Cir. 2000). In general, direct evidence is evidence that can be interpreted as acknowledgment of discriminatory intent by the decision-maker. See, e.g., Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).
However, it is not necessary to come forward with evidence that amounts to an "admission of guilt by the defendant." Id. at 737. Evidence need not be so obvious to qualify as direct evidence of discrimination. Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997). A plaintiff can build a so-called "direct evidence" case from a mosaic of evidence, such as suspicious timing, ambiguous oral or written statements, behavior toward or comments directed at other employees in the protected group, and so on, from which a reasonable inference of discriminatory intent might be drawn. Robin, 200 F.3d at 1088-89; Troupe, 20 F.3d at 736. Nevertheless, evidence of discriminatory motives must have some relationship to the employment decision at issue; inappropriate but "stray" remarks are not sufficient. Venters, 123 F.3d at 973.
Peal argues that Levandowski's e-mail comment — "you sound like a little boy complaining and whining" — supports the inference that Levandowski's decision seven months later to select Owens as his second choice for the job (after first-choice Nance turned down the job) was based on Peal's race.
Levandowski's statement is not direct evidence of race discrimination against Peal. The statement does not refer to race and cannot reasonably be understood to convey any racial connotation. Although the court is aware that the word "boy" has been used as a derogatory form of address to African-American men, the court also is aware of the word's more common meaning. Even viewing the evidence in the light most favorable to Peal, Levandowski's reference to "little boy" cannot reasonably be construed as a racial insult. Levandowski used the phrase "you sound like a little boy whining and complaining," in an e-mail message that criticized Peal's management communication style. Peal has not identified any other evidence of statements or behavior by Levandowski that lends the slightest support to his effort to turn the e-mail message into a racial slur. In this context, objectively, it would be unreasonable to construe "little boy" as a racial term. See Mills v. Health Care Serv. Corp., 171 F.3d 450, 459 (7th Cir. 1999) (on summary judgment, while any inferences drawn from the facts must be viewed in the light most favorable to the non-moving party, only reasonable inferences need be made).
Peal also tries to support his case with Levandowski's volunteered statement in his deposition that he "didn't mean a racial reference or any intent like that." Levandowski Dep. at 151. Peal contends, in essence, that this volunteered comment could reasonably be construed as evidence of Levandowski's guilty or discriminatory conscience, or as support for the inference that the remark could reasonably be construed as having a racial dimension. The record makes such an inference unreasonable. Before Levandowski's deposition testimony, Peal had referred to the "little boy" comment in his preliminary contentions and final contentions filed with the court and served on HUD's counsel. In this litigation context, it is not surprising that Levandowski may have anticipated Peal's attorney's ultimate interest in the e-mail message or that Levandowski stated that he "guessed" there could be some racial connotation associated with it. In any event, Levandowski's comments in a deposition in a racial discrimination case aimed at his decision more than two years after he wrote the e-mail message are insufficient to graft a racial meaning onto a phrase that otherwise has none. See Robin, 200 F.3d at 1089 ("we will not read invidious intent into isolated comments that, standing alone, are hardly offensive and remote in time").
Levandowski's description of Peal as sounding "like a little boy complaining and whining" is direct evidence that Levandowski thought Peal sounded childish and immature with respect to Peal's decision to send an e-mail about a workplace problem to several people instead of confronting those people directly. The evidence does not, however, advance Peal's race discrimination claim.
II. Indirect Evidence Analysis
Because Peal does not have direct evidence of race discrimination, the court analyzes his claims under the three-step pattern of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this model, a plaintiff must first come forward with evidence of the following four elements of a prima facie case involving a promotion: (1) he is a member of a protected class; (2) he applied for and was qualified for the position he sought; (3) he was rejected for the position; and (4) the person promoted had similar or lesser qualifications for the job. Ghosh v. Indiana Dept. of Environmental Management, 192 F.3d 1087, 1090-91 (7th Cir. 1999); Sample v. Aldi Inc., 61 F.3d 544, 548 (7th Cir. 1995), disapproved on other grounds, Leffel v. Valley Financial Services, 113 F.3d 787, 793 (7th Cir. 1997).
The prima facie case is intended to identify circumstances in which a jury could infer that an employment decision, if not explained, was the product of illegal discrimination. See, e.g., Robin, 200 F.3d at 1088. However, if the employer can then merely articulate a legitimate, non-discriminatory reason for its decision, that step shifts the burden of proof and persuasion back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. See id.; Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000).
Peal satisfies the first and third elements of his prima facie case. He is a member of a protected class and was denied the position he sought. HUD contends that Peal cannot establish a prima facie case with respect to a promotion to the Multifamily Chief position at the GS-14 level because he did not have the minimum qualifications required for a GS-14 appointment. The lack of GS-14 qualifications does not appear to be material at this stage of the prima facie case, however, because the evidence shows that Levandowski selected Nance as his first choice for the promotion at a time when Nance appeared to have only GS-13 qualifications. See Buckmaster Aff. ¶ 17. Peal therefore also satisfies the second element of the prima facie case, at least for purposes of summary judgment.
As for the fourth element, HUD argues that Peal cannot establish a prima facie case with respect to a promotion to the Multifamily Chief position at the GS-13 level because, even though he was qualified for an appointment at that level, the person promoted, Owens, did not have "similar or lesser qualifications." In this case, the issues of whether plaintiff is sufficiently qualified to sustain a prima facie case and whether defendant's qualification-based reasons for not promoting plaintiff are pretextual "dovetail" together. See Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir. 1999) (explaining how evidence regarding an employee's work performance can be considered in context of plaintiff's prima facie case or in context of whether defendant has established a legitimate, nondiscriminatory reason for employment action).
The court therefore proceeds directly to the next step of the McDonnell Douglas analysis. See Vanasco v. National-Louis University, 137 F.3d 962, 966 (7th Cir. 1999) (analyzing pretext without deciding whether plaintiff was sufficiently qualified to establish prima facie case and observing that the qualification element and the issue of pretext often focus on the same circumstances because the employer maintains that the employment decision was based on performance); Fleming v. UGN, Inc., No. 95 C 5868, 1998 WL 150729, at *4 (N.D.Ill. March 27, 1998) (applying same reasoning in a discharge case).
HUD has asserted two legitimate, nondiscriminatory reasons for not selecting Peal for the Multifamily Chief position: (1) Levandowski chose a candidate from the GS-14 roster; and (2) Levandowski did not find Peal to be the best candidate for the job. To survive summary judgment, Peal has the burden of coming forward with evidence that would allow a reasonable jury to find by a preponderance of the evidence that both of HUD's stated reasons are pretexts for illegal race discrimination. See Ghosh, 192 F.3d at 1091; Wolf v. Buss (American) Inc., 77 F.3d 914, 920 (7th Cir. 1996) (if defendant offers multiple reasons for its employment decisions, plaintiff must show that each is pretextual).
A pretext for discrimination "means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's track's." Kulumani, 224 F.3d at 684, citing Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2108-09 (2000). A plaintiff can establish pretext if he can show that the defendant's proffered reasons are either lies or completely lacking in factual basis. Mills, 171 F.3d at 458; Ghosh, 192 F.3d at 1091.
Peal is not required to present direct evidence of pretext. Rather, he can establish pretext indirectly by producing evidence that HUD's proffered reasons for not promoting him are not credible:
a plaintiff may accomplish this showing with evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the [employment decision]. . . . These formulations are simply different ways of recognizing that when the sincerity of an employer's asserted reasons for [not promoting] an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.Testerman v. EDS Technical Products Corp., 98 F.3d 297, 303 (7th Cir. 1996) (citation omitted); see also Stewart, 207 F.3d at 376 (same).
There is an issue of fact as to whether the fact that Peal did not meet GS-14 standards is a pretext for choosing Owens. Buckmaster's affidavit provides evidence that Levandowski chose Nance for the promotion at a time when Levandowski believed Nance met only GS-13 qualifications, not GS-14. Buckmaster Aff. ¶ 17. From that fact, a jury could reasonably infer that Levandowski's later choice between Owens and Peal was not based on the difference between GS-13 and GS-14 qualifications.
However, there is no genuine issue of fact as to whether Levandowski honestly believed Owens was better qualified than Owens for the promotion. Peal argues that Levandowski's asserted belief is a pretext for two reasons. First, Peal contends that "he was without question the most qualified candidate for the position in comparison to Ms. Owens." Pl. Br. at 6. Second, according to Peal, HUD did not follow its own policies and procedures in the selection process for the Multifamily Chief position. Neither argument is persuasive.
Regarding the candidates' relative qualifications, Peal cannot create a fact issue on pretext by asking the court or a jury to evaluate the evidence of his and Owens' qualifications to determine whether HUD's promotion decision was correct. Assuming that Peal had more supervisory experience than Owens, as he argues, whether that experience should have persuaded Levandowski to select Peal for the Multifamily Chief position is not relevant to the pretext inquiry. "[T]he overall correctness or desirability of the reasons proffered is not relevant to the determination of pretext." Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999); Mills, 171 F.3d at 459 (to show pretext, plaintiff would have to produce evidence that evaluation of plaintiff's performance was dishonest, not merely mistaken); see also Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 865 (7th Cir. 1997) (questioning judgment does not prove pretext).
This principle might not apply if the employer's evaluation were so egregiously mistaken that it had no basis in fact. See Mills, 171 F.3d at 459 (citation omitted); see also Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999) (plaintiff may show pretext by showing employer's stated reason is unworthy of credence). Peal's own subjective assessment of his and Owens' qualifications is not sufficient to create a genuine issue of material fact on the issue of pretext. See Jordan v. Summers, 205 F.3d at 344 n. 9 (7th Cir. 2000) (plaintiff's belief that her degree made her more qualified than other candidates was not relevant to pretext inquiry); Sanchez v. Henderson, 188 F.3d 740, 746 (7th Cir. 1999) (pretext analysis "seeks to uncover the true intent of the defendant, not the belief of the plaintiff"). The courts do not function as a "super-personnel department" in reviewing promotion decisions. See, e.g., Ghosh, 192 F.3d at 1093 (affirming summary judgment despite plaintiff's contention that he was better qualified candidate for promotion); see also Jordan, 205 F.3d at 344 (citation omitted) ("Discrimination laws serve only to prevent consideration of forbidden characteristics — like race — but they are not, as we have repeatedly noted, court-enforced merit selection programs.")
To make a sufficient showing of pretext to survive summary judgment on his theory that he was the better qualified candidate for the Multifamily Chief position, Peal would need to present evidence that would let a jury reasonably conclude that Levandowski was lying when he said that Owens was better qualified than Peal or evidence that Levandowski's belief about Owens was factually baseless. Levandowski has no such evidence. There is no record evidence that suggests that Levandowski did not actually believe that Owens was the better qualified candidate after Nance declined the Multifamily Chief position. In addition, there is no record evidence that tends to show that Levandowski's stated belief that Owens was the better candidate was factually baseless.
Even viewed in the light reasonably most favorable to Peal, the evidence indicates that Peal and Owens were both qualified for the Multifamily Chief job, and that, as compared to one another, each had areas of relative strength and weakness. Notably, as Peal has admitted, Owens had much more experience than Peal in the area of multifamily housing. Specifically, Owens had eight to ten years of direct multifamily housing experience. Peal had the equivalent of at most one or two months of experience with multifamily projects. Peal, on the other hand, had more supervisory experience than Owens. The evidence concerning their qualifications does not support a reasonable inference that Levandowski did not honestly view Owens as better qualified.
Peal estimated his experience as equivalent to one or two years of multifamily experience through various temporary assignments. That estimate is obviously not worthy of any credence, as discussed above in note 2, but even if it were credited, it is also much less experience than Owens had in the multifamily field.
Peal also cannot prove pretext on the theory that HUD did not follow its own policies in the selection process for the Multifamily Chief position. Peal argues that the vacancy notice required HUD to implement a "crediting ranking plan" by assigning each candidate points according to the quality ranking factors, some of which were double-weighted. Peal's theory is that the assignment of points in this manner would have identified him as a stronger candidate than Owens because he was strong in multiple double-weighted categories while Owens was strong only in one single-weighted category — multifamily experience. HUD counters with evidence that it followed its Merit Staffing Policy. That undisputed evidence shows that if there are five or fewer qualified candidates for the job in question, all applications are forwarded to the Selection Officer without additional screening in the form or rating or ranking.
Peal further contends that HUD violated the Merit Staffing Policy by not reposting the vacancy announcement when it determined that it would not use a "credit ranking plan." There is no apparent basis for this argument in the policy itself or otherwise.
Moreover, even if HUD did violate its own policies, and there is no evidence that it did, a violation of internal policies does not necessarily provide evidence of pretext. In Stewart v. Henderson, the Seventh Circuit recently affirmed summary judgment in a failure to promote case where plaintiffs, like Peal, argued that a federal agency's failure to follow its own selection policies was evidence of pretext. 207 F.3d at 376, 378. The court explained that simply showing that the agency applied its own rating method poorly was not evidence that the agency's proffered reasons for the employment decisions at issue were pretextual. Id. See also Kulumani, 224 F.3d at 684 (where company established criteria for managers to select employees for reduction-in-force, human resources director's "unusual" decision to override managers' selection was not evidence of pretext); Friedel v. City of Madison, 832 F.2d 965, 973 (7th Cir. 1987) (employer's inaccurate application of policy does not provide basis for Title VII liability); Kipnis v. Baram, 949 F. Supp. 618, 623 (N.D.Ill. 1996) (evidence that employer may not have followed complaint procedure correctly could not support Title VII claim unless employee had evidence that departure from procedure was discriminatory).
To prove pretext by challenging the application of an employer's selection policy, a plaintiff must produce evidence that the employer lied about using the selection method and that the court should infer from that lie a discriminatory reason for the promotion decision. See Stewart, 207 F.3d at 378. Peal has not met this burden. Although he disputes the manner in which HUD applied its policies, there is no record evidence from which a reasonable jury could conclude that HUD has lied about its understanding of how the Merit Staffing Policy and the vacancy announcement should be construed together. Accordingly, Peal cannot show pretext and cannot prove racial discrimination in HUD's decision to promote Owens over him. The court therefore GRANTS summary judgment to defendant. Final judgment for defendant will be entered.