Kаren Bell, Lolita Hill, Farro Assadi, and Christina Prasinos, Plaintiffs-Appellants, v. Environmental Protection Agency and Carol M. Browner, in her official capacity, Defendants-Appellees.
No. 99-3926
United States Court of Appeals For the Seventh Circuit
Argued May 19, 2000--Decided November 6, 2000
Before Flaum, Chief Judge, and Manion and Williams, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CV 6349--Charles R. Norgle, Sr., Judge.
I
The four plaintiffs worked as environmental engineers in the Air
Three EPA section chiefs--William MacDowell, Diane Sipe, and Peter Spyropoulos--decided that they would interview the candidates and make the final selection as a panel. They agreed to focus on the written applications and on how well the applicants responded to the agreed-upon interview questions. They intended to reach a unanimous decision on the four candidates but were unable to do so. They did reach a consensus on three candidates: Denny Dart, Katherine Kieth, and Emmett Keegаn. The Panel submitted the impasse on the fourth position to their supervisor, George Czerniak. Ultimately, Linda Hamsing was selected as the fourth successful candidate. All four are white, native-born Americans.
After the EPA announced the promotions, plaintiffs sent a memorandum to Czerniak, Sipe, MacDowell, and Spyropoulos raising questions about the selection process. Czerniak responded, but plaintiffs were unsatisfied and filed formal complaints with the Equal Employment Opportunity Commission on February 5, 1997. In September 1997, plaintiffs filеd their four-count complaint. The district court granted summary judgment to the EPA on all counts.
II
We review de novo a district court‘s
Plaintiffs make various disparate treatment clаims against the EPA, alleging race and national origin discrimination. Because they cannot show any direct evidence of discrimination, plaintiffs rely on the burden-shifting approach delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this approach, plaintiffs must first make out a prima facie case of discrimination by demonstrating that (1) they belong to a protected group; (2) they applied for and were qualified for the positions sought; (3) the EPA rejected them for the positions; and (4) the EPA granted promotions to persons who were not in the protected groups. See Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997). Once plaintiffs establish their prima facie case, we presume that they werе discriminated against, and EPA must articulate a legitimate, nondiscriminatory reason for its employment action. McDonnell Douglas, 411 U.S. at 802; Stockett, 221 F.3d at 1001; Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir. 1995). Once the EPA has met this production burden, plaintiffs must establish that the reason offered by the EPA is merely a pretext for discrimination. See Texas Dep‘t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Stockett, 221 F.3d at 1001; Sirvidas, 60 F.3d at 378. In the case at bar, both sides agree that plaintiffs have established a prima facie case and that the EPA has articulated a nondiscriminatory reason for promoting others instead of plaintiffs. They disagree, however, whether plaintiffs have established that EPA‘s proffered reasons arе pretextual.
[t]he question before us in reviewing the grant of summary judgment is only whether . . . [the plaintiff] produced evidence from which a rational fact-finder could infer that the company lied in saying that it fired . . . him because he was an unsatisfactory worker. If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one, such as age, may reasonably be drawn. This is the common sense behind McDonnell Douglas.
Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994); see also Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995) (ruling that in order to survive a summary judgment motion, plaintiffs “need not prove that the real reason for [the EPA‘s] action was discriminatory“). “Because a fact-finder may infer intentional discrimination from an employer‘s untruthfulness, evidence that calls truthfulness into question precludes summary judgment.” Perdomo, 67 F.3d at 145; accord Reeves v. Sanderson Plumbing Prods, Inc., 120 S. Ct. 2097, 2110 (2000) (ruling in an analogous Rulе 50 context that “the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses‘” (quoting 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure sec. 2529, p. 300 (2d ed. 1995))).
The EPA‘s asserted reason for not promoting plaintiffs is that they were not the best qualified candidates. The district court complained that plaintiffs took a “shotgun” approach to the pretext issue by presenting several categories of
A. Employment Discrimination
Plaintiffs contend that there is abundant direct, cirсumstantial, and statistical evidence supporting their employment discrimination claims. Plaintiffs argue that (1) they were demonstrably better qualified than the selectees; (2) they introduced unrebutted statistical evidence that supported their claims; (3) EPA‘s violations of their normal procedures casts doubt on the legitimacy of their promotion decisions; (4) the credibility of the EPA‘s story is drawn into question by illogical and inconsistent statements and rationales offered by the EPA‘s decisionmakers; and (5) anecdotal evidence prеsented by plaintiffs demonstrates discriminatory animus by the decisionmakers and a pattern and practice of discrimination. The district court correctly found that (1) the EPA did not deviate from its own promotion procedures; (2) the alleged inconsistent statements merely illustrated that the panel was having difficulty reaching a unanimous decision; and (3) the anecdotal evidence was not connected to plaintiffs’ discrimination claims. However, we find that plaintiffs’ comparative qualifications and their statistical evidence preclude summary judgment.
1. Comparative Qualifications
First, plaintiffs argue that the EPA‘s reasons were pretextual because they were, in fact, more qualified than those employees chosen for promotion. Specifically, all four plaintiffs had been employed with the EPA for a longer period of time than any of the selectees. Moreover, several of the plaintiffs had received more service achievement awards than the selectees: Bell received more awards than any of the selectees;
Nonetheless, the district court ruled that plaintiffs’ argument was not persuasive. Accоrding to the district court, “the issue is whether the EPA honestly believed that it promoted the most qualified persons for the positions.” The district court is not quite correct. At the summary judgment stage, the district court evaluates whether plaintiffs have produced evidence from which a fact-finder could infer that the employer lied about the reasons for promoting the selectees. We recently addressed a similar situation in a case involving the EPA:
In sum, [the plaintiff] has presented specific evidence that calls into questiоn the veracity of the EPA‘s reason for failing to promote her: that she was not as qualified as the other candidates. Although a fact-finder at trial may conclude that the EPA honestly believed that [the plaintiff] was not as qualified, and therefore not liable, when weighing or balancing [the plaintiff‘s] credentials and qualifications against those of [the selectees], it is quite evident that her qualifications not only match those of the successful appointees but may very well exceed those for the two attorneys chosen.
Just as in Perdomo, a fact-finder in the instant case could reasonably find that the EPA was dishonest when it concluded that the selectees were more qualified for the promotions than the plaintiffs were. Plaintiffs had more experience, received more performance awards, and scored at or near the top in the preliminary candidate objective rankings. The EPA cannot escape scrutiny merely by claiming that they selected the most qualified candidates. Furthermore, an internal EPA document suggests that the EPA did nоt select the best candidates.
The issue of selection causes me a great concern. . . . This is the first time in my career that I cannot support an issue which is so clear in my mind and where I think others are totally out of reality. We want to select the best. . . . I cannot see that [selectees] Kathy [Kieth] and Denny [Dart] are superior tо [plaintiff] Farro [Assadi]. I cannot support them because I believe they are not the best. . . . I consider Farro [Assadi] better by far than all of them and [plaintiff] Karen [Bell] better than . . . [selectee] Linda [Hamsing].
The district court rejected this evidence as inadmissible hearsay. Specifically, the district court found that the evidence did not fall within the
Plaintiffs were attempting to use the memo, however, to counter the EPA‘s assertion that it honestly believed it was promoting the four best candidates. Plaintiffs made this argument clear in their 12M response. Moreover, the memorandum is admissible under
2. Statistical Evidence
Next, plaintiffs argue that the district court completely disregarded their statistical evidence of discrimination. Plaintiffs’ statistical report analyzed
Whilе we have rejected efforts to use statistics as the primary means of establishing discrimination in disparate treatment situations, see Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 (7th Cir. 1997), it can be utilized. “In conjunction with other evidence of disparate treatment, however, statistics can be probative of whether the alleged disparity is the result of discrimination.” Kidd v. Illinois State Police, 167 F.3d 1084, 1101 n.16 (7th Cir. 1999) (citing McDonnell Douglas, 411 U.S. at 805).
Moreover, this is not a systemic (pattern and practice) disparate treatment case. In a pattern and practice disparate treatment case, statistical evidence сonstitutes the core of a plaintiff‘s prima facie case. Within the McDonnell Douglas individual disparate treatment model, however, statistical evidence is only one small part of a substantial web of evidence indicating pretext. Consequently, evidence of systemic disparate treatment is relevant to and probative of the issue of pretext even when it is insufficient to support a pattern and practice disparate treatment case. See Bruno v. W.B. Saunders Co., 882 F.2d 760, 767 (3d Cir. 1989) (ruling that “in individual disparate treatment cases such as this, statistical evidence, which may be hеlpful, though ordinarily not dispositive, need not be [as] finely tuned” as in the class action--systemic
The usefulness of statistics in an individual treatment case to show pretext “depends on all the surrounding facts and circumstances.” International Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977). Statistical evidence, therefore, should be admitted as evidence if it meets the
A valid statistical analysis must encompass the relevant labor market. See Kidd, 167 F.3d at 1102. The district court incorrectly limited the relevant labor market to only those 16 persons qualified for the Masters positions. We have consistently held otherwise in similar cases. For example, a professor who charged his employer with age discrimination for failing to promote him may “subject all of the employer‘s decisions to statistical analysis to find out whether age makes a difference.” Kuhn v. Ball State Univ., 78 F.3d 330, 332 (7th Cir. 1996). We did not suggest that the professor‘s relevant job market is only him. In another case, a former employee of the Illinois Department of Public Health brought a sex discrimination suit against her former employer. See Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987). We ruled admissible statistical evidence that showed a systematic wage disparity between male and female employees. See id. at 698. “If it turned out that [defendant] always recommended higher pay for men than women, this would be some evidence that [plaintiff] hadn‘t gotten the raise she wanted because she was a woman.” Id.
Plaintiffs’ statistical report looked at all promotions in the upper Midwest region for two positions, including the Masters position at issue in this case. Although the district court and the EPA argue that this report was too broad, our
Plaintiffs’ statistical data suggests a general pattern of discrimination toward the foreign born. Although plaintiffs’ expert found that blacks received promotions at a lower rate than nonblacks, he did not find that the difference was statistically significant. The expert also found a significant difference when he combined the results of foreign born and black applicants. Plaintiffs argue that this result means that “white employees are favored over both African-American and foreign born employees.” Furthermore, plaintiffs contend that “[c]onsidering the two minority groups separately has the effect of understating the magnitude of defendants’ discriminatory conduct because defendant gets ‘credit’ in separate analyses for discriminating against the other protected class.” Plaintiffs’ “credit” analysis does not make any statistical sense. All it tells us is that either African-Americans or foreign born employees (or both) are promoted less often, statistically speaking. Until we break out the two groups, we cannot examine the possible underlying cause. (It is likely that if plaintiffs’ expert combined white and foreign born applicants together, he could show a statistically significant shortfall, but what does that mean?)
While plaintiffs’ report is most persuasive in its finding that foreign born employees, who are otherwise qualified, are not promoted as often as native born employees, the evidence that blacks are not promoted as often as nonblacks, even though not statistically significant, is still circumstantial
3. Conclusion
Plaintiffs’ comparative qualifications and their statistical evidence preclude summary judgment on their Title VII discrimination claims.7 Even if the pieces of evidence were not conclusive by themselves, they sufficiently countered the EPA‘s assertion that it honestly believed it was promoting the best candidates.
For it is not true that to get over the hurdle of summary judgment a plaintiff must produce the equivalent of an admission of guilt by the defendant. All that is required is evidence from which a ratiоnal trier of fact could reasonably infer that the defendant had [failed to promote] the plaintiff because the latter was a member of a protected class . . . .
Troupe, 20 F.3d at 737. Here, a jury could reasonably find that plaintiffs were more qualified than the selectees. Accordingly, we reverse the district court‘s grant of summary judgment on plaintiffs’ Title VII claims.
B. Retaliation
Three of the plaintiffs also argue that the district court erred in granting summary judgment to the EPA on their retaliation claims. Plaintiffs Bell, Hill, and Prasinos testified to numerous incidents of alleged retaliation, including demeaning assignments, verbal
A prima facie case of retaliation is established when plaintiffs show that (1) they engaged in protected activity; (2) they suffered an adverse employment action subsequent to their participation; and (3) a causal connection exists between the adverse employment action and their participation in protectеd activity. Smart v. Ball State Univ., 89 F.3d 437, 440 (7th Cir. 1996). The district court concluded that plaintiffs failed to demonstrate a prima facie case of retaliation.
Although we define “adverse employment action” broadly, not everything that makes an employee unhappy is an actionable adverse action. See id. at 441. For an employment action to be actionable, it must be a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998); accord Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999). Plaintiffs failed to show that they suffered actiоnable adverse employment action.
Bell asserts that she left her section for a new position with the EPA because of a Panel member‘s conduct. She did not present any evidence, however, of a material change in the terms or conditions of her employment. Hill also left her section for a new position with the EPA after the Panel did not promote her. Like Bell, Hill did not present any facts that indicated a material change in the terms and conditions of her employment. Prasinos asserts that one of the Panel members refuses to greet her or speak to her and that he cancelled a conference called by her. These are trivial matters that do not rise to the level of actionable retaliation. See Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996); Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994). Accordingly, we affirm the district court‘s grant of summary judgment to the EPA on the retaliation claims.
For the reasons stated herein, we Affirm the district court‘s grant of summary judgment on plaintiffs’ retaliation claims but Reverse the district court‘s grant of summary judgment on plaintiffs’ Title VII claims. Accordingly, we Remand the case for further proceedings consistent with this opinion.
Appendix
| Plaintiffs | Tenure | Experience | Job Awards/8 | Rating Score | Rank/9 | Statistical Support |
| Bell | 1986;/10 | * region coordinator * F.E. engineering license | 1 gold 2 bronze | 69 | 4 | Minor |
| Hill | 1987 | 1 bronze | 63 | Minor | ||
| Assadi | 1980 | lead engineer | 1 gold 1 bronze | 75 | 1 | Significant |
| Prasinos | 1986 | * lead engineer * region coordinator * project officer | 2 bronze | 75 | Significant | |
| Selectees | ||||||
| Dart | 1990 | lead engineer | 75 | 3 | ||
| Kieth | 1991 | 69 | 2 | |||
| Keegan | 1991 | 69 | ||||
| Hamsing | 1987 | lead engineer | 75 |
Notes
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(3) Then existing mental, emotional, or physical cоndition. A statement of the declarant‘s then existing state of mind, emotion, sensation, or physical condition . . ., but not including a statement of memory or belief to prove the fact remembered or believed . . . .