Grayson, Mickey R. v. City of Chicago ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2001
MICKEY GRAYSON,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 558—John W. Darrah, Judge.
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SUBMITTED SEPTEMBER 19, 20021—DECIDED JANUARY 28, 2003
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Before CUDAHY, DIANE P. WOOD and WILLIAMS, Circuit
Judges.
CUDAHY, Circuit Judge. The plaintiff, Mickey Grayson,
appeals from a summary judgment entered against him
on his claims against the City of Chicago arising from
alleged employment discrimination. He claims race and
age discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII) and the Age Discrimination
in Employment Act of 1967 (ADEA). The District Court
1
The parties have waived oral argument in this case and thus
the appeal is submitted on the briefs and the record. See Fed. R.
App. P. 34(f).
2 No. 01-2001
held that Grayson did not establish a prima facie case of
discrimination and entered a judgment for the defendant
on March 20, 2001. Agreeing that Grayson has not estab-
lished a prima facie case of discrimination, we affirm.
I.
Mickey Grayson is an African-American man who was
born in 1944. In 1985, he was hired by the City of Chi-
cago as a carpenter in the Department of Public Works,
part of which later became the Department of Transpor-
tation (CDOT). In early 1995, CDOT posted three job
openings for which Grayson, then age 50, applied: General
Foreman of General Trades, General Foreman of Carpen-
ters and Foreman of Carpenters. At that time, Grayson had
been serving as a Sub-foreman of Carpenters (a position
identical in all but name to Foreman of Carpenters) for
about four years and had been working for the City of
Chicago for ten years. He had over twenty-five years
experience as a journeyman carpenter, as well as substan-
tial formal training and education. Grayson applied and
interviewed for, but did not get, any of the three positions.
Stan Kaderbek, Deputy Commissioner of the Depart-
ment of Transportation, Bureau of Bridges, hired three
younger, white candidates instead of Grayson. According
to Grayson and other witnesses, Grayson was better quali-
fied, had more training and education and had more
seniority than some or all of the men selected for the
jobs. However, as both parties acknowledge, the decision
really came down to one criterion: “quality and relevance
of previous job experience.” All three men chosen in place
of Grayson were, at the time of the job posting, working
in the positions for which they sought formal designation.
Thus, the Acting General Foreman of General Trades suc-
cessfully sought to become the General Foreman of Gen-
eral Trades, the Acting General Foreman of Carpenters suc-
No. 01-2001 3
cessfully sought to become the General Foreman of Car-
penters and the Acting Foreman of Carpenters success-
fully sought to become the Foreman of Carpenters. Mark
Fornaciari, Ron Biamonte and Mike Brubaker had been
working in the respective “Acting” positions for more than,
respectively, two, three and four years.
Although he had no direct evidence that Kaderbek
had improperly taken into account factors such as race
or age in his decisionmaking, Grayson sued the City
of Chicago for discrimination under Title VII and the
ADEA, proceeding under the burden-shifting mechanism
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The district court granted summary judgment for the
defendant. The trial judge found that, with respect to his
rejected application for the Foreman of Carpenters posi-
tion, Grayson had suffered no adverse employment action,
since the requested position was identical to his present
position in all but name. With respect to his application
for the other two positions, the trial court ruled that
Grayson was not similarly situated to the applicants who
received the promotions because he had not attained their
level of experience. The district court also found that, even
if Grayson had presented a prima facie case, the defen-
dant had offered a nondiscriminatory reason for its hir-
ing decisions—the other candidates’ experience. However
imperfect Kaderbek’s hiring system may be, Grayson failed
to show that the City of Chicago’s stated reasons for re-
jecting him were pretextual.
Grayson appeals several aspects of the trial court deci-
sion. First, he argues that a difference in title alone can
be the basis of an adverse employment action, and asks
us to reconsider the promotion of Brubaker to Foreman
of Carpenters. He then says that the basis on which
Kaderbek made his decisions was pretextual when consid-
ered with other evidence, such as the extent of Grayson’s
experience, his seniority and a provision in the Collective
4 No. 01-2001
Bargaining Agreement giving preference in promotions to
employees with greater seniority. Finally, he complains
that by basing its promotion decisions on the outcomes
of earlier promotions of individuals to interim positions,
appointments unlikely to have resulted in legal action,
CDOT improperly protects the earlier decisionmaker
and thereby shields discriminatory acts from legal attack.
II.
Grayson has no direct evidence of discrimination and
so proceeds under the burden-shifting mechanism of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas framework, a prima facia
case of employment discrimination creates a rebuttable
presumption that the employer’s actions, if unexplained,
were the result of impermissible factors and shifts the
burden of production to the employer to articulate some
legitimate, nondiscriminatory reason for its actions. If
the employer satisfies that burden, the plaintiff must
then show that these articulated reasons are pretextual.
Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1261
(7th Cir. 1993).
In order to establish a prima facie case in a failure-to-
promote context, the plaintiff must show that 1) he be-
longs to a protected class, 2) he applied for and was quali-
fied for the position sought, 3) he was rejected for that
position and 4) the employer granted the promotion to
someone outside of the protected group who was not bet-
ter qualified than the plaintiff. See, e.g., Johnson v.
Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001), cert.
denied 122 S. Ct. 1299 (2002). The defendant points out
that implicit in the third element, rejection, is the re-
quirement, in all discrimination actions, that the rejec-
tion constitute a “materially adverse employment action.”
See Ribando v. United Airlines, Inc., 200 F.3d 507, 510
No. 01-2001 5
(7th Cir. 1999). For the reasons given below, we believe
that, with respect to the General Foreman of General
Trades and General Foreman of Carpenters positions,
Grayson fails on the fourth element of his prima facie
case, and that, with respect to the Foreman of Carpenters
position, Grayson fails on the third element.
As Grayson failed to make out a prima facie case of
discrimination, we do not reach the question whether
Grayson showed as pretextual Kaderbek’s reasons for hir-
ing others instead of Grayson for the three given posi-
tions. We note simply that we believe Kaderbek’s rea-
sons not pretextual, suggesting that Grayson’s case would
fail even if he could successfully claim a prima facie
case. In particular, Grayson’s primary evidence of pretext,
Kaderbek’s alleged disregard of the seniority considera-
tions of the promotion procedure specified in the Collective
Bargaining Agreement,2 simply does not come into play
if Kaderbek did not believe the applicants to be “rela-
tively equally qualified.” We will, however, briefly ad-
dress Grayson’s charge that the system of promotions
at CDOT promotes discrimination by cloaking the true de-
cisionmaker.
We review de novo a grant of summary judgment, re-
viewing the record and the inferences drawn from it
in the light most favorable to the nonmoving party.
Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.
1994).
2
Section 14.8 of the Collective Bargaining Agreement states
in part: “The Employer shall select the most qualified appli-
cant. . . . Where bargaining unit applicants are relatively equally
qualified the Employer shall select the most senior employee
of those who apply.”
6 No. 01-2001
A.
Grayson has failed to make out a prima facie case against
the City of Chicago. We consider separately his case
with respect to the General Foreman of General Trades
and General Foreman of Carpenters positions and his case
with respect to the Foreman of Carpenters position.
1.
In order to meet the fourth element of his prima facie
case, Grayson needed to show that he was as qualified as
Fornaciari and Biamonte for the positions of General
Foreman of General Trades and General Foreman of
Carpenters respectively. However, we have held that
persons who do not have the same or equivalent posi-
tions are not similarly situated with respect to a potential
promotion. Hoffman-Dombrowski v. Arlington Int’l Race-
course, Inc., 254 F.3d 644, 651 (7th Cir. 2001). Prior to
his promotion, Fornaciari had been serving as Acting
General Foreman of General Trades for more than two
years. In that capacity, he was responsible for “coordinat-
ing the work of twelve different trades, supervising the
order of materials and supplies for all of those trades,
and supervising the implementation of a progressive dis-
cipline program for all of the employees in those trades.”
Def. City of Chicago’s Rule 12(m) Statement of Undis-
puted Material Facts in Supp. of City of Chicago’s Mot.
for Summ. J. (City of Chicago Rule 12(m) Statement), para.
15. Biamonte had been serving as the Acting General
Foreman of Carpenters for over three years. He “coordi-
nated the work of nine to ten full crews of carpenters,
supervised the subforemen for each of the crews, and served
as the first level of review in the implementation of a
progressive discipline program for all the employees in
the crews.” City of Chicago Rule 12(m) Statement, para. 16.
No. 01-2001 7
While Grayson did allege that he was as qualified
as Fornaciari and Biamonte, see Second Am. Compl.,
paras. 14, 19, Grayson Aff., paras. 31, 41, 46, Grayson did
not show that he has held equivalently demanding posi-
tions or has had job experience comparable to the suc-
cessful applicants. Grayson’s experience as a Sub-fore-
man of Carpenters is not equivalent to the experience
Fornaciari and Biamonte have had in serving on an acting
basis in the very positions to which they have been pro-
moted. Grayson therefore has not met the fourth element
of his prima facie case, justifying summary judgment
against him. Alternatively, we believe that even if Gray-
son had made out a prima facie case, the City of Chicago’s
reason for promoting Fornaciari and Biamonte, that they
were serving in the acting positions, was a legally suffi-
cient reason that Grayson has not shown to be pretextual.
2.
With respect to the Foreman of Carpenters position,
Grayson can easily show that he was similarly situated
to Brubaker. Both Grayson and Brubaker were serving
in positions identical in all but name to Foreman of Car-
penters: Brubaker was Acting Foreman of Carpenters
and Grayson was Sub-foreman of Carpenters. For a close-
ly related reason, however, Grayson’s case fails. Because
Grayson’s position at the time of the hiring decisions
was identical in all but title to the position that he
was denied, the rejection of his application for promo-
tion was not a materially adverse employment action.
Grayson argues that, under Crady v. Liberty National
Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.
1993), rejection of a change in job title alone is a mate-
rially adverse employment action. We do not agree. While
Crady does say that “a less distinguished title” could
indicate an adverse employment action, it goes on to
8 No. 01-2001
hold that the loss of an “Assistant Vice President” title,
when similar responsibilities and identical salary and
benefits are retained, does not constitute an adverse
employment action. Id. Grayson acknowledges that in all
respects other than title—including responsibilities, sal-
ary and benefits—the Sub-foreman position is equivalent
to the Foreman position. The district court held that
this equivalence means that Grayson’s being passed over
for what was only a loftier title was not a materially
adverse employment action. We must agree. See also
Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002)
(holding that an employee cannot establish an adverse
action on the basis that a reassignment deprives him of
prestige).
This is not to say, however, that the loss of a title may
not prove more significant in other discrimination contexts.
For example, Grayson argues that a difference in title
may result in different job promotion opportunities. In-
deed, Grayson has already faced an instance where his
being the Sub-foreman, rather than the Acting Foreman,
apparently resulted in another employee’s getting the
Foreman position. But there was no materially adverse
employment action in the present situation precisely
because all three differently titled positions are essen-
tially identical. However, should there be in the future
a possible promotion to a clearly higher (with higher
responsibilities, salary or benefits) position open to both a
Foreman and to a Sub-foreman, an actual promotion, it
might well be suspicious if CDOT were to promote based
on which one of the two identical positions the applicant
held. Such a basis (title only) for promotion would not
only be likely to allow a potential plaintiff to meet the
fourth element of his prima facie discrimination case—
according to Hoffman-Dombrowski, candidates in “equiva-
lent positions” are similarly situated—but would also
hint that the earlier denial of a promotion was actually
No. 01-2001 9
a materially adverse employment action. That is, if the
City of Chicago has a habit of distinguishing between
promotion candidates in equivalent but differently titled
positions, title alone may be more significant than it
appears to be here. In the absence of such a scenario,
however—after all, Grayson actually was promoted to
Foreman just a year after the events described in this
lawsuit—there is no materially adverse employment action.
There is, however, at least one suggestion that the City
of Chicago would place such reliance on title alone. Appar-
ently arguing that Grayson does not meet the fourth
element of his prima facie case with respect to the Fore-
man of Carpenters position, the City of Chicago’s appel-
late brief states that “[u]nlike Grayson[,]” Brubaker
“had several years of experience serving in the very posi-
tion[ ] to which [he] was promoted.” Appellee’s Br. at 24.
But since the City of Chicago also argues that the Sub-
foreman’s and the Foreman’s duties are equivalent, id.
at 19-20, the City’s contention is insupportable. The city
cannot have it both ways. With respect to the Foreman
of Carpenters position, Kaderbek should have resorted
to other criteria; the fact that Brubaker was Acting Fore-
man of Carpenters had no significance when Grayson had
experience in an equivalent position. The rating forms
used in evaluating the candidates, however, show that
Brubaker, for whatever reason, scored higher than Grayson.
Whether this higher score would defeat Grayson’s claim
that he was similarly situated to Brubaker or provide
a nondiscriminatory reason that Grayson would have
had to show to be pretextual, it would likely be enough to
defeat Grayson’s discrimination suit, even if we were to
have held that this rejection was a materially adverse
employment action. As we noted above, the fact that
the promotion from Sub-foreman to Foreman of Carpen-
ters is not material defeats Grayson’s claim altogether.
10 No. 01-2001
B.
Grayson in his briefs passionately asks us to consider
a hypothetical: What if the acting position assignments
were made based on experience gained through interim
assignments which were in turn made on a discrimina-
tory basis? Because the interim assignments were tempo-
rary and not accompanied by higher pay, the person
discriminated against may not have had a legal basis or
a practical occasion to press a lawsuit. But the victim
may discover later that he has been defeated by a dis-
criminatory series of personnel actions that effectively
cloaked the identity of the decisionmaker. Grayson in-
sinuates that Kaderbek’s status quo-maintaining hiring
pattern acts to perpetuate discrimination that took place
in an earlier stage of the employment relationship. How-
ever, Grayson’s concern that such a belated discovery of
an earlier discrimination in a series of actions would
have no effective remedy (due to the operation of the stat-
ute of limitations), Appellant’s Reply Br. at 6, is not well-
founded. At the very least, such a plaintiff would have
the opportunity to plead his set of apparently related
actions and ask us to treat this series as a continuing
violation or perhaps request equitable tolling. See gen-
erally CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 992-93
(7th Cir. 2002) (describing the continuing violation doc-
trine as applied to Title VII actions and the require-
ments of the equitable tolling doctrine). Grayson has not
presented any evidence that his hypothetical has in fact
occurred, nor did he raise this theory before the EEOC or
the district court. This argument, therefore, has been
waived. See, e.g., Perry v. Sullivan, 207 F.3d 379, 383 (7th
Cir. 2000) (noting that arguments raised for the first
time on appeal are routinely deemed waived); Cheek v. W.
& S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (hold-
ing that there has to be “a reasonable relationship” be-
tween the allegations of an EEOC charge and the claims
contained in a complaint).
No. 01-2001 11
III.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-28-03