Thе district judge granted summary judgment for the defendant in this suit charging racial discrimination in employment in violation of federal law. The plaintiff, Walkеr, who is black, is a National Accounts Manager (i.e., a sales manager) in the Hospital Products Division of Abbott Laboratories, the defendant. Walker was at salary grade 18. Two new positions as NAMs in that division opened up, but Abbott decided that someone appоinted to one of these positions could, if his or her qualifications warranted, be given a salary grade of 20 rather than 18 although the duties would be the same. Walker wanted one of those jobs so that he could get the higher salary, but instead both jobs went to other peоple, one of whom was a white male named Smith. Walker claims, first, that Smith was ineligible for the job because the job posting stated that applicants must have a bachelor’s degree, which Smith did not and so he must have been preferred for an invidious reason; and second, that Abbott’s contention that Walker was ineligible for the job because he already was a NAM is spurious.
Abbott’s position illustrates a tеndency of some lawyers to pile on arguments without worrying about their consistency. On the one hand, Abbott argues that it was not required to аdhere to the terms of the job posting. On the other hand, it argues that Walker was ineligible because someone who was already а NAM could not apply for one of the new positions even though they paid more. This makes it seem that Abbott complies with its personnel rules only when it wants to.
Indeed so. And there is nothing wrong with that. Unless a rule is part of the company's contract with its employees, the сompany is free to create exceptions to it at will. Rules by definition do not make a perfect fit with all the circumstances to which they apply; if they did, they would not be rules, but standards. A rule abstracts from particular circumstances, and if one of the excluded circumstances is salient in a particular case there is pressure to recognize an exception. A well-managed сompany will not make exceptions to its personnel rules promiscuously because that will generate ill will among the employees; they will feel they're being subjected to a~bitrary treatment, which nobody likes. Wilbert B. Scheer, Personnel Administration Handbook 314-15, 965-69 (3d ed.1985); Lin Grensing-Pophal, Developing a Personnel Manual 2 (1993); "HR1O1 Seminar: Consistency Is Key to Successful Human Resources Management," Business Voice Archives (Mar. 2002), www.njbia.org/bvmar02.htm; "Tackling Discrimination and Promoting Equality-Good Practice Guide for Employers," ACAS, http:// www.acas.org.uWpublica-tions/B16.html. But neither will a well-nianaged company adhere to its personnel rules with a rigidity blind to circumstances that may make the rule occasiоnally wholly inapt. "People in supervisory positions *644 are not doing their best for the company if they are content to administer rules. Fairness, consistency, and demonstrated interest in employee problems are the backbone of supervisory morale building. ... [N]o set of written policies should become a straitjacket on management thinking.” Scheer, supra, at 315, 965.
Smith had only an associate’s degree from college, but it was a degree in medical technology and he had 20 years of experience in the medical products industry. He was already at salary grade 19, supervising a sales team, and before being appointed a NAM was rated in the top one percent of sales managers in the Health Products Division. Walker, in contrast, though he indeed had a bachelor’s degree (but had majored in political science rather than in anything to do with business or the medical field), had been working for Abbott for only six years and had nоt achieved a rating comparable to Smith’s. He does not deny that his all-round qualifications for a higher salary grade were inferiоr to Smith’s.
Which should end the case right there. When the better-qualified white worker is selected, and there is no evidence indicating racial discrimination, the employer is entitled to summary judgment.
Malacara v. City of Madison,
It was silly for Abbott to argue that Walker was forbidden to apply for a grade 20 NAM position because he already held a grade 18 position. But it is the silliness of оverlawyering rather than evidence of discrimination. Suppose Walker had vastly superior qualifications, and when Smith was hired for one of the new positions had gone to his boss and said that he, Walker, should get a grade 20 position because he was a star. In all likelihood, the boss would have acceded to the demand, even if it meant bending the rules in Walker’s favor, as it would if both grade 20 NAM positions had bеen filled. The rules had already been bent in his favor, when he had first become a NAM, because the formal requirement is not just of a bachelor’s degree but of a degree in business administration or a related field, and Walker’s was not. Having gotten the benefit of flexible administration of сompany rules, he should not be heard to complain that a better-qualified worker also benefited from that flexibility.
There is a further rеason, unrelated to “qualifications” in the normal sense, why the preferring of Smith gives rise to no inference of discrimination. Walker was already a NAM, at grade 18; there was no need to pay him more in order to retain him in that position. But to induce Smith to become a NAM, the company had either to keep him at grade 19 or to give him a raise. It would have made no business sense to give Walker the 20 and оrder Smith to become a NAM at a lower wage than he was receiving in his present job. Smith would probably have quit.
*645
The briefs dwell at length on the ubiquitous
McDonnell Douglas
formula for establishing a prima facie case of discrimination and thus defeating summary judgment for the defendant. The formula has its place but does not displaсe the general standards for summary judgment.
Borcky v. Maytag Corp.,
AFFIRMED.