*2 BAUER, and POS- Before CUDAHY NER, Judges. Circuit
POSNER, Judge. Mason, employee a black
Frieda Illinois National Bank Chica- Continental Rights brought this suit under the Civil go, amended, 42 Act of U.S.C. § supervisory and one of its bank that she had employees, complaining The of her race. denied granted summary court district defendants, appeals. she in favor transmis- August the com- supervisor day on the shift of sion of the bank’s interna- munications section salary grade tional services division —a Mason, a position opened up, Miss — in the work coordinator section’s At about this time she applied for it. rat- received annual supervi- was found ing, out- average, though not sor to be above potential for fu- standing, and in terms of “moderate,” defined development ture ability mean that “the next grade one salary advance commented, “With report months.” The in- Management development further terface, advance certainly Frieda could Ma- grade in the next months.” salary “Manage- explained that supervisor son’s communicating with ment interface” meant Friedman, defendant superiors and that supervisory levels couple who was a Mason, came not like the above rath- personnel matters directly to him going through channels. er than Mason’s name was forwarded to Dennis communications section was more like that Parenti, supervisor supervisor communica- of a transmission day section, along tions with the name of anoth- shift than Yarmolchuk’s work as an investi- candidate, er a white woman. Parenti dis- gator was, offsetting this was the fact cussed names with assist- the position before on the manager ant of the international services opened up Yarmolchuk received two *3 division, Lehmann, Edward superior evaluations to Mason’s. The refer- manager of the division. Lehmann stated problem “Management ence to Mason’s deposition: in his “I to indicated him interface,” [Par- rating in a issued the same to try we should determine enti] month the position opened up, implied that might whether not there be any other thought ready not aby sym- —even candidates within international services pathetic [the supervisor (also black) provid- who division], and also with discussing that with ed deposition evidence for her in this case— Ron to determine whether there [Friedman] promotion. immediate Yarmolchuk’s had been candidates that might we rating potential of “moderate” had been might appropriate know of that candi- issued four months earlier and had been dates that might want to consider for upgraded just to “substantial” before the position.” this position opened up, suggesting she was rip- promotion er for than Mason.
Coincidentally, within a days few of Leh- mann’s discussion with Parenti an employee contends, however, Mason the fol- in the international services division who lowing a genuine circumstances created is- just (effective had resigned July 31)—Mar- sue of material regarding fact the bank’s yann Yarmolchuk —called say Parenti to her, true motive for appointing not she her regretted decision to leave and thus made summary judgment improper: wanted to come back. Miss Yarmolchuk 1. had August given she been new had a special investigator been for the divi- as night duties work coordinator on the sion, salary grade assigned to handle position upgraded her was not to claims customers who had under- grade 9. paid bank’s Her services. most explain 2. The bank her refused in employee recent in rating, March had writing why' appoint- not get rated outstanding grade above Ma- —a supervisor day ment as transmission on capable son —but like Mason of advancing shift. just grade salary in the next 12 months. notice, Yarmolchuk’s termination issued 3. Friedman her that told Yarmolchuk July, had performance described her as- had appointed because she was “exemplary in every regard” and had qualified better but because Mason “lacked upgraded potential future de- communication skills” —an obvious false- velopment from “moderate” to “substan- hood, according to Mason’s brief. tial," which means employee can ad- 4. Yarmolchuk was not selected vance or more salary grades two within position Lehmann, manager until next months. When Parenti learned division, away international services was on that Yarmolchuk wanted to come back trip. business the bank he called rules, existing 5. Under the bank’s em- Lehmann, called appointed and she was ployees preference are entitled to a when it position fill the for which Mason filling position, an open comes and Mason plied. existing was an employee, whereas Yarmol- Nothing in the facts recited so far chuk, bank, having left the was a new em- gests that racial played any animus role in ployee. appoint the bank’s decision to opening 6. The not posted. was position rather than Mason to the open on True, day supervisor shift. Mason’s work as a 7. Mason’s was consulted work on night appointment. coordinator shift about white, recently have who had left so pro- under the bank’s rules Although been treated. an employ- soon as permissible motion qualified, Mason denied minimally ee is they posted are when Openings not the best because she was division; Yarmol- filled candidate. qualified said, regarded as still was, we chuk in the division. nor combination do singly Neither of racial raise an inference allegations these was consulted supervisor 7. Mason’s discrimination. day shift —her vacancy on about deposition clearly. states this supervi- were two transmission
1. There
only one
day
shift but
on
sors
is substantial doubt that Mason
8. There
immediate
superior.
sought,
shift —Mason’s
for the
This is
more
in her
view of the reservations
work;
incoming, only outgoing,
pri-
is no
rating report
immediately
made
*4
quali-
the
If Mason
But if she was
night
application.
cable traffic on
shift.
or to her
fied,
re-
nothing
the bank’s rules
super-
had
a transmission
still
in
upgraded
minimally qualified
a
shift,
night
quires
promote
the
it to
visor on the
most qualified
rather
than the
the same number of trans-
would have had
up.
rational
position opens
No
when
as
it
supervisors
mission
the
and
qualified
candi-
that
several
enterprise
many.
need so
them
position
among
selects
dates for
is
policy
2. The bank’s consistent
lot;
Holder
qualified.
picks
it
best
Cf.
give employees
explanations
written
for de-
v. Old Ben Coal
There is no indica-
promote.
cisions not to
(7th Cir.1980).
this
any
policy.
tion of
racial animus behind
as if
analyzed
we have
Thus far
3. Mason’s
evaluation stated
for
special
proof
no
rules
there were
sought
help
that she “had
to enhance
if
discrimination case—as
employment
writing capabilities,”
possible
and it is
that
in
other
any
this
question
referring
this is
Friedman was
to in
what
granted,
is
summary
case where
commenting on her lack of communication
genuine
simply
whether there
skills; alternatively,
he
have been al-
pro-
for
issue material fact. Our reason
luding
develop-
to her need for “further
although
the format
ceeding thus
that
Management
ment
interface.”
In ei-
for
laid
Supreme
that
Court
down
ther
ac-
simply noting
case Friedman was
Green,
v.
411 U.S.
Corp.
McDonnell
knowledged areas of weakness
(1973),
93 S.Ct.
any comparison
have entered into
of Mason
employment
proving racial discrimination
and Yarmolchuk.
Rights
of the Civil
in violation of Title VII
phoned
4. Friedman
Lehmann for
held
applicable
Act
also has been
of 1964
proval
appoint
Yarmolchuk because Leh-
1981, see
brought
§
under 42 U.S.C.
cases
traveling
mann was
on business. There is
Flowers
Crouch-Walker
no
this
indication that
is an abnormal meth-
Cir.1977),
(7th
as this case
1281 n.
making personnel
od of
decisions at
the was,
question
is some
whether
statute,
Continental Bank.
appropriate,
format is
under either
involving appointment
promo-
in a case
or
deposition
The uncontested
evidence
there are sever-
position
tion to a
for which
is that Yarmolchuk was considered an exist-
al candidates.
ing
if
employee,
spirit
rules,
letter
new
disappointed
bank’s
rather than a
allows
employee,
pri-
left
she had
the bank
to establish
applicant
employment
only
promptly regret-
weeks before and had
of unlawful discrimination
ma facie case
ted her
but was re-
proving
qualified
decision to leave. There is no
that he was
open
that “the
remained
gestion
differently
jected
that she was treated
appli-
employer continued
seek
from
and the
employee,
black
persons
duct,
complainant’s qualifi-
cants from
not explained,
probably
based
cations.” 411
U.S. at
discrimination.
If
conduct
is not
But
present, the
inapplicable.
method is
posted openings
job
for a
involving
A
after
year
Furnco the First Circuit
routine
job
mechanical skills —the kind of
questioned the universality of the McDon
normally
is filled on a first-come first-
nell
approach,
particular
and in
its
among
pool
quali-
served basis
applicability to a case
“In
such
this.
applicants.
fied
such
case refusal to
view
fact that the Court has never
hire a qualified applicant
the open-
while
passed on the viability
particular
ings remain unfilled creates an inference
elements of the
Douglas prima
that considerations other
than individual
facie
factory hiring setting,
case outside the
merit
influencing
hiring process.
caution
automatic reliance on
Waters,
Furnco
Corp.
Constr.
438 U.S.
those
the employment
elements when
set
567, 577,
2943, 2949-2950,
98 S.Ct.
ting
proof
that their
such
does not make
(1978).
L.Ed.2d 957
But when the opening
a probability.
example,
For
managerial position
involves a
for which
if a
black were
qualified
turned down for a
there are several applicants,
job
applicants
there were 100
naturally
looking
will
quali-
for the best
every opening
practice,
rather than
applicant
fied
rather
a minimally qual-
to hire the first
applicant
one,
ified
and the
fact
he turns down
appeared,
was to
choose on
basis of
the first minimally qualified applicant who
qualifications,
subjec
recommendations and
up,
shows
in the
hope
quali-
a better
*5
interview,
tive impressions gleaned from an
soon,
appear
fied one will
does not create an
it
hardly
would
seem
likely
‘more
than not’
inference of discrimination.
that
applicant
rejected
was
of
The Supreme Court
in Furnco —which
Textron, Inc.,
1003,
race.” Loeb v.
600 F.2d
like
Douglas
jobs
involved
de-
(1st
1017
Cir.1979).
Banerjee
n. 18
also
See
manding only routine skills (bricklaying, in
v.
of
of
College,
Board
Trustees
Smith
495
Furnco)
that
the method of
—indicated
1148,
F.Supp.
(D.Mass.1980).
1152-55
proof set forth in McDonnell Douglas might
lines,
Along the same
Supreme
Court
applicable
not be
to a different
of
type
case.
recently
stated
in a sex discrimination case
“The central focus of the inquiry ...
is
(but
equal
seem,
application, it would
always whether the employer
treating
is
to a
of
discrimination)
racial
“the
that
‘some
less
people
favorably than others be-
plaintiff
prove by
’
must
of
preponderance
of
cause
their race
....
The method
applied
evidence that she
for an availa
gested
in McDonnell
pursuing
ble
qualified,
for which she was
but
however,
this inquiry,
was never intended
was rejected under circumstances which
mechanized,
to be rigid,
or
ritualistic.
give
rise
an inference of unlawful dis
Rather,
sensible,
it is merely
orderly
Dept.
crimination.” Texas
Community-
of
to evaluate the
light
evidence in
of common
Burdine,
248, 253,
v.
Affairs
450
101
U.S.
experience
itas
on
ques-
bears
the critical
1089, 1094,
S.Ct.
(1981) (em
consistent not more really 13 was 745 n. Corp., 619 F.2d ITT Financial less Mason, long not Boorstin, so v. (8th Cir.1980); Garner curiam). is has discretion employer There (D.C.Cir.1982) (per qualified. “[T]he qualified candi among equally Keene Col of Trustees of State to choose also Board dates, is based provided S.Ct. the decision not lege Sweeney, v. U.S. curiam), to be (1978) (per criteria. The fact unlawful upon with, Supreme Court mis reckoned where the think court applicability the applicant assumed the judged qualifications liability. in an academic to” expose him not in itself does though question. discussion without VII 259, 101 at 1097. “Title Id. at 42 U.S.C. does equally § 1981] [and as indicated share While whom a court the candidate require that First whether McDon doubts of the particular qualified for considers most in a case really applicable nell it re position; awarded that position be this, is more than such where there candi only among decision quires job job does applicant for Lieberman discriminatory.” not be dates skills, us is no need for involve routine Cir.1980) (Friend Gant, (2d here; our question conclusion resolve Cty. Nassau Civil J.). Knight also ly, See entitled to a trial on that Miss Mason Comm’n, (2d Cir. Service not be charges complaint 1981). Doug changed applying the McDonnell is a though las not because there test — pre cannot use a Therefore Mason whether, in recent question view Mason’s discrimination, sumption help prove rating, really directly by per it prove must “either position of qualified for the transmission rea discriminatory suading the court that a That supervisor. issue cannot decided likely son more motivated summary judgment. When she applied showing employer’s indirectly position she told un was not cre unworthy explanation proffered though Lehmann tell his qualified; and Dept. Community Affairs dence.” Texas *6 keep looking, to he have may subordinates 256, 101 Burdine, 450 at S.Ct. supra, U.S. richer hope getting done this in of right back to the brings 1095. This us at pool of from which to choose candidates that Mason contends eight circumstances n rather because he considered Mason than re genuine issue of material fact create applied unquali the other woman appointing the bank’s motive garding Maybe provi fied. Yarmolchuk had not They no more instead of her. Yarmolchuk dentially reappeared, Mason would for stated reasons show the bank’s appointed after all. phony (“pre preferring textual”) the case Ma issue when if we assume therefore that But —the Douglas terms —than prima dis in McDonnell son did establish facie case of framed directly. discriminatory motive they under show crimination McDonnell course, judg showing summary be entitled to merely that she was Of to show that on ease had to rejected, prima and was still the facie ment defendants pre evidence obtained rebutted “evidence that the basis of the be pos pre there was no reasonable plaintiff rejected, discovery or someone else trial at trial ferred, nondiscriminatory plaintiff’s proving legitimate sibility for a for gave Af Community the reasons defendants Dept. reason.” Texas 254, 101 Miss Yarmolchuk Burdine, her in favor of supra, rejecting fairs v. 450 U.S. at being real reason pretexts, at 1094. there was extensive were mere .S.Ct. Since race; think the defendants carried but we preferred evidence that Yarmolchuk law if two It is not the having nothing to do with their burden. reasons and a race, position, for a white presumption of discrimination candidates any black, qualified, gets ing landmarks, are and the white from the settled such as to on a position, black entitled a trial Douglas, may be fraught with complaint of merely danger. to be demanding And too given by the reasons draw inferences we from common experi- be pointing might phony white ones. proof ence to make of discrimination more elusive it is under the best gratuitous cruelty parties It is a circumstances. put through their witnesses to them emotional ordeal of a when the trial out- In the instant there is sufficient pre- come is foreordained. extensive Since “qualified,” evidence that Mason was discovery evidence, trial has revealed no there is some evidence that “in indirect, direct or played racial animus prima line” for the promotion; thus a facie promo- role in Mason’s denied the case under McDonnell seems sought, tion she her case entirely consists have been presented. Had Mason also conclusory “mere assertions of discrimina- presented evidence of facts be which could tion,” which “are sufficient to with- proved at trial to establish that the legiti- motion for summary judgment stand a mate nondiscriminatory reason articulated ” .... Patterson v. General Motors by the pretex- its decision was (7th Cir.1980). 631 F.2d judg- The tual, summary her case could have escaped dismissing ment the complaint is therefore judgment. But evidence of pretext here is identify. difficult to
Affirmed.
turning upon subjective
Cases
considera-
CUDAHY,
Judge, concurring:
tions of motive and
ordinarily
intent
I agree with the result and
a good
appropriate
upon summary
decision
deal of the
I
majority’s analysis.
write
judgment.
Baldini v. Local
separately
order to comment
ma UAW,
(7th Cir.1978).
jority’s discussion of
appropriateness
plaintiffs
deprived
And
should not be
the McDonnell
analysis in
summary
op-
“full and fair
such as this.
in its
portunity
pretext.”
to demonstrate
Rowe
original
require
form
some
adjustment
v. Cleveland Pneumatic
Numerical Con-
to fit
the facts before us. But
there is
trol, Inc.,
(6th Cir.1982);
see
precedent,
substantial
both
this and other
also Davis
at
circuits, well
as indirect indications from quoting
Douglas,
at
U.S.
Court,
the Supreme
Doug
that McDonnell
Yet,
despite
1825-1826.
provides
las
analysis
the basic form of
fairly
pre-trial discovery
extensive
in this
applied
which is
involving
in cases
ease,
in order
discern evidence of racial
promotions
jobs
where the criteria may
discrimination underlying
employer’s
be somewhat subjective and the evaluation
*7
reason,
articulated
nondiscriminatory
comparative in
nature.
Board of
speculate.
This we cannot
Trustees
Keene
College
State
Swee
do.
ney,
439 U.S.
99 S.Ct.
Therefore I concur.
(1978),
remand,
Sweeney v. Board of
Trustees
College,
Keene State
(1st Cir.1979),
denied,
cert.
444 U.S.
(1980);
100 S.Ct.
Davis v. (7th F.2d 726 Cir.
1979); Wright v. National Archives and Service, (4th
Records 713-15
Cir.1979); ITT Satz v. Financial (8th Cir.1980). n. 13 Racial frequently
discrimination is so difficult a
phenomenon prove disprove drift-