Sublett, Lateirra R. v. John Wiley & Sons ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1213
LATEIRRA R. SUBLETT,
Plaintiff-Appellant,
v.
JOHN WILEY & SONS, INC. &
WILEY PUBLISHING, INC.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:03-CV-0347-SEB-JPG—Sarah Evans Barker, Judge.
____________
ARGUED JANUARY 6, 2006—DECIDED SEPTEMBER 13, 2006
____________
Before EASTERBROOK, MANION, and WOOD, Circuit
Judges.
WOOD, Circuit Judge. LaTeirra R. Sublett, an African-
American woman, sued John Wiley & Sons, Inc., and
Wiley Publishing, Inc. (to whom we refer collectively as
“Wiley”), alleging that they failed to promote her, gave her
unwarranted poor performance reviews, and retaliated
against her for filing a complaint about race discrimina-
tion in violation of both Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The district
court granted summary judgment in favor of
Wiley. Although some of Sublett’s allegations, if true, reflect
unfortunate behavior, we conclude that she failed to
2 No. 05-1213
establish a prima facie case or pretext with respect to any
of her claims. We therefore affirm the district court’s
judgment.
I
On June 1, 1999, Wiley’s predecessor, IDG Books World-
wide, Inc. (IDG), hired Sublett as a Customer Care Repre-
sentative (CCR). Her qualifications for this posi-
tion included a high school diploma, certification as an
administrative assistant based on her completion of an
eight-month training course at Midwest Career College, and
an employment history including work as a food server, a
customer service representative at another company, a
telemarketer, and an insurance collector. At the time
Sublett was hired, she was the only African-American
employee in the Customer Care Department.
In 2000, IDG created four Senior CCR positions. Sublett’s
supervisor Felicite Pickens, an African-American woman
who had been hired after Sublett, encouraged her to apply
for one of these positions. Pickens, however, was fired soon
thereafter and played no role in determining who was
selected. Instead, supervisors Breea Hosier and Linda
Perkins interviewed Sublett for one of the available posi-
tions. Hosier and Perkins filled three of the slots with white
employees. Initially, they did not select Sublett for the
fourth available position because they thought that she was
insufficiently enthusiastic about the job in her interview
and that she had a conflict with another employee, Vicki
Bess. Sublett had more seniority at the company than some
of the employees who were selected for the promotion.
When Sublett found out that she did not receive the CCR
position, she emailed Chad Secrist, an employee in the
Human Relations Department, to find out what steps
she could take if she thought the reason for her lack of
success was racial discrimination. This email triggered a
No. 05-1213 3
series of events that eventually led to a meeting among
Sublett, Hosier, Perkins, and Sherry Marcuson, another
employee in the Human Relations Department. At this
meeting, Sublett informed Hosier and Perkins that she
did not have a conflict with Bess and was in fact enthusias-
tic about the position. After the meeting, Perkins and
Hosier promoted Sublett to a Senior CCR position effec-
tive August 21, 2000.
In September 2001, Sublett received her annual perfor-
mance review. The review covered six categories with four
possible ratings for each category: “Outstanding Perfor-
mance,” “Exceeds Performance Expectations,” “Proficient,”
and “Needs Improvement.” Sublett, who had been evaluated
by Hosier and Perkins, received the “Proficient” rating in
each category. Based on this review, Sublett received a 4%
merit pay increase. Around the same time, John Wiley &
Sons, Inc. acquired IDG (which had since become Hungry
Minds) and changed the company’s name to Wiley Publish-
ing, Inc.
In February 2002, Wiley restructured its Customer Care
Department. As a result of this reconfiguration, two “team
leader” supervisory positions became available, a day-
shift position and a night-shift position. Hosier asked
Sublett which position she preferred, and Sublett replied
that she was interested in the day-shift position. Sublett
was one of five employees and the only African-American to
express interest in the day-shift position. Ultimately, Hosier
and Perkins hired Mary Roberts, a white woman, for the
job. The reason they gave to Sublett for her lack of success
was that they did not think that she was ready to assume
the responsibilities of a team leader. Later, in June 2002,
another team leader position became available. Hosier and
Perkins again considered Sublett for the position, but they
eventually hired Michael Shoptaw, a white male from
outside the company. On June 17, 2002, after sending
several emails to Wiley supervisors complaining about not
4 No. 05-1213
receiving a promotion, Sublett filed a claim with the Equal
Employment Opportunity Commission (EEOC), asserting
race discrimination and retaliation.
On August 8, 2002, the Director of Human Resources,
along with Marcuson, Hosier, and Perkins, held a meeting
with Sublett to discuss her complaints. At this meeting,
Sublett expressed her belief that she had been passed
over for the available promotions because of her race.
Perkins disagreed, claiming instead that she had not
been selected because she lacked the requisite leadership
skills and was not as qualified for the position as the
applicants that were hired. As a result of this meeting,
Sublett received a Development Plan, which detailed the
areas in which she would need to improve in order to
qualify for future promotions.
In September 2002, Sublett received her 2002 annual
performance review, which also used four possible ratings:
“Substantially Exceeded,” “Fully Met,” “Acceptable w/
Qualifications,” and “Less Than Acceptable.” Sublett
received two “Fully Met” ratings, four “Acceptable w/
Qualifications” ratings, and a 3% merit pay increase.
On October 23, 2002, Sublett filed a second EEOC charge
for race discrimination and retaliation. In addition to
complaining about the 2000 and 2002 promotion decisions,
she alleged that Wiley retaliated against her by giving
her poor performance reviews in 2001 and 2002. Shortly
after Sublett filed this claim, Hosier and Perkins promoted
her to a team leader position that had recently become
available.
On December 12, 2002, the EEOC issued Sublett a right-
to-sue letter; Sublett filed her complaint in federal dis-
trict court on March 7, 2003. When the time came for the
district court to consider Wiley’s motion for summary
judgment, Sublett responded with evidence of Wiley’s
failure to promote her in 2000 and 2002 and her negative
No. 05-1213 5
performance reviews in 2001 and 2002. She also sub-
mitted the testimony of Felicite Pickens, her former super-
visor. Pickens testified that supervisors Hosier and Perkins
rarely talked to African-American employees. In addition,
Pickens claimed that on at least one occasion, Perkins
asked her to change the performance evaluation of a white
employee to reflect a more positive rating than Pickens
believed the employee actually deserved. Additionally,
Sublett submitted testimony from Secrist, the Human
Relations employee to whom she initially complained.
Secrist alleged that another Human Relations employee
(who had some role in the company’s promotion decisions)
commented that she “did not like black people.” On a
separate occasion, according to Secrist, Wiley’s Vice Presi-
dent of Operations told Secrist that he would never accept
anyone for a position at the company that did not have an
“ethnically neutral voice.” Sublett claimed generally that
while supervisors Hosier and Perkins fired a number of
African-American employees during her tenure at Wiley,
including Felicite Pickens, they hired and promoted only
white employees. She also accused Marcuson of treating
white people more favorably than minorities; in fact,
Sublett claimed, Marcuson treated African-American
employees at the company with “disgust.”
Sorting through this evidence and correlating it to
Sublett’s specific claims, the district court concluded that
Sublett had failed to establish a prima facie case with
respect to any of her discrimination or retaliation claims.
The court accordingly granted Wiley’s motion for sum-
mary judgment. We review the district court’s order
de novo, construing all facts and drawing all reasonable
inferences from those facts in favor of Sublett. See Koszola
v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1107 (7th
Cir. 2004).
6 No. 05-1213
II
As a preliminary matter, we briefly address certain
alleged procedural errors that Sublett claims prejudiced
her. First, she argues that the district court improperly
based its decision on an issue that Wiley failed to raise
in its motion for summary judgment, namely, that Sublett
had not presented evidence supporting a finding that
Wiley’s proffered reasons for failing to promote her in 2000
were pretextual. Sublett asserts that Wiley raised only
a statute of limitations defense with regard to this claim.
This switch in grounds, Sublett argues, deprived her of
the opportunity to argue the issue of pretext before the
district court.
It is true that in its motion for summary judgment, Wiley
argued only that Sublett’s claim based on the 2000 promo-
tion was untimely because she filed her EEOC
claim outside the 300-day period specified by Title VII and
her § 1981 claim after the two years permitted under
Indiana’s statute of limitations. (In an intervening decision,
the Supreme Court held that § 1981 claims are subject to a
four-year statute of limitations, see Jones v. R.R. Donnelley
& Sons, Co., 541 U.S. 369 (2004); this change does not affect
our decision.) As a general matter, if the moving party does
not raise an issue in support of its motion for summary
judgment, the nonmoving party is not required to present
evidence on that point, and the district court should not rely
on that ground in its decision. See Edwards v. Honeywell,
960 F.2d 673, 674 (7th Cir. 1992) (“When a party moves for
summary judgment on ground A, his opponent is not
required to respond to ground B—a ground the movant
might have presented but did not.”) (quoting Malhotra v.
Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989).
The problem with Sublett’s argument is that it does not
reflect everything that happened in the district court. The
record establishes that the question of pretext was briefed
No. 05-1213 7
thoroughly before the district court. For example, in her
brief in opposition to Wiley’s motion for summary judgment,
Sublett specifically noted that “the reasons for not promot-
ing [her] in 2000 [were] undisputed to be false” and that
this was “evidence of the defendants’ plan, motive, intent,
and pretext.” (Emphasis added.) In response, Wiley argued
that “Sublett . . . failed to create a genuine issue of pretext”
with respect to the 2000 promotion, as part of an extensive
discussion of pretext. (Emphasis added.) Sublett was also
permitted to file a surreply brief, in which she argued that
the fact that she did not actually have a conflict with
another co-worker “is evidence that Perkins . . . had not
[sic] basis to believe that Sublett had a conflict with
[another co-worker]. . . . Perkins was simply dishonest and
had no basis for such a statement. . . . When the defendants
lie about the plaintiff, it is evidence of pretext.” Because
Sublett had a “meaningful opportunity to come forward
with all of [her] evidence” about pretext, Simpson v.
Merchants Recovery Bureau, Inc., 171 F.3d 546, 550 (7th
Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
326 (1986)), the district court was entitled to rely on this
ground in its summary judgment decision.
Sublett also challenges the district court’s finding that
she did not name the correct defendant with respect to
her claim about the 2000 promotion. The district court
concluded that in 2000, Sublett’s employer was either IDG
or Hungry Minds, neither of which is a party to this suit.
Our review of the record reveals that there has merely been
a series of name changes—IDG changed its name to Hungry
Minds, and Hungry Minds became Wiley Publishing, Inc. In
the end, none of this matters: the district court offered this
reason as one of several for rejecting Sublett’s 2000 claim.
We proceed on the assumption— favorable to Sublett—that
these changes of ownership have no effect on Wiley’s
liability.
8 No. 05-1213
On the merits, we consider first Sublett’s challenge to the
district court’s rejection of her claim that the reason why
she did not initially receive a promotion to the senior CCR
position in 2000 was because of her race. Racial discrimina-
tion of this kind is, of course, prohibited both by Title VII
and § 1981. See 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981.
Furthermore, “[a]lthough section 1981 and Title VII differ
in the types of discrimination they proscribe, the methods
of proof and elements of the case are essentially identical.”
Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th
Cir. 1996). The discussion that follows thus applies with
equal force to Sublett’s claims under both statutes.
A plaintiff can support her Title VII claim for failure to
promote in one of two ways: “she may directly show that
racial discrimination motivated the employment deci-
sion, or, as is more common, she may rely on the indirect,
burden-shifting method set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).” Perdomo v. Browner,
67 F.3d 140, 144 (7th Cir. 1995) (citations omitted). Sublett
proceeds under the latter burden-shifting method. She
therefore has the initial burden of establishing a prima
facie case of race discrimination by showing that: “1) she is
a member of a protected group; 2) she was qualified for the
position sought; 3) she was rejected for the position; and 4)
the employee promoted was not a member of the protected
group and was not better qualified than the plaintiff.”
Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir.
2001).
If she passes that hurdle, the burden shifts to the defen-
dant to articulate a legitimate, nondiscriminatory reason
for its action, “which if believed by the trier of fact, would
support a finding that unlawful discrimination was not the
cause of the employment action.” St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 507 (1993) (citing Tex. Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). At that
point, “[t]he plaintiff . . . resumes her original burden of
No. 05-1213 9
proof and must establish by a preponderance of the evi-
dence that the defendant’s proffered reasons are
pretextual.” Perdomo, 67 F.3d at 144.
Even assuming that Sublett established a prima facie
case with respect to Wiley’s failure to promote her in 2000,
there is not enough evidence of pretext in this record
to survive summary judgment. Pretext is a “lie, specifically
a phony reason for some action.” Russell v. Acme-Evans,
Co., 51 F.3d 64, 68 (7th Cir. 1995). In order to demon-
strate a material issue of fact as to pretext Sublett
must show that “1) it is more likely that a discriminatory
reason motivated the employer than the proffered non-
discriminatory reason or 2) that an employer’s explanation
is not credible.” Hudson v. Chicago Transit Auth., 375
F.3d 552, 561 (7th Cir. 2004) (citing Guerrero v. Ashcroft,
253 F.3d 309, 313 (7th Cir. 2001)).
Wiley has consistently asserted that it did not initially
select Sublett for a promotion in 2000 because it be-
lieved that she had a conflict with another co-worker and
that she did not express enough enthusiasm in her inter-
view. After the responsible officials met with her and
learned that their assumptions were wrong, she received
the promotion. It is true that if Wiley’s initial decision
not to promote Sublett was based on race, its later decision
to promote her does not erase the earlier discrimination.
See Molnar v. Booth, 229 F.3d 593, 600-01 (7th Cir. 2000)
(“The mere fact that the [adverse employment action]
was reversed . . . and [plaintiff’s] career put back on track
does not diminish its importance during the time it
lasted . . . . The short duration is naturally relevant to
the degree of damage [plaintiff] suffered. . . .”). Sublett,
however, has not offered any evidence that, if believed by a
trier of fact, would demonstrate that Wiley’s proffered
justification for its initial decision was pretextual, rather
than simply mistaken.
10 No. 05-1213
The other evidence to which she points does not do the
job. She relies, for example, on evidence indicating that
Perkins told Pickens, her former supervisor, to change
the evaluation of a white employee to reflect a more positive
rating. The problem with this “evidence,” however, is that
Sublett provides no supporting facts or explanatory details
with respect to these events. Nothing indicates whether this
request, which we assume was made, was based on race or
on an honest disagreement with Pickens’s assessment of the
employee. Nor is there anything else in the record from
which a trier of fact could determine whether Perkins
systematically discriminated against minority employees or
if she merely “show[ed] favorable treatment [to] one
employee who happened to be white.” Jordan v. Summers,
205 F.3d 337, 345 (7th Cir. 2000). Because there is insuffi-
cient evidence of pretext, the district court did not err in
granting summary judgment in favor of Wiley with respect
to the failure to promote in 2000 claim.
III
Sublett also challenges the district court’s rejection of her
claim that Wiley discriminated against her in 2002 when it
did not promote her. In 2002, as we noted earlier, Wiley
considered Sublett for promotions in February, March, and
June. With respect to the February and June decisions, we
agree with the district court that Sublett failed to establish
the fourth element of the prima facie case—that the
employer promoted someone who was not in the protected
class and was not as qualified as the plaintiff. Although
neither of the successful candidates (Roberts and Shoptaw)
is African-American, their qualifications for the team leader
position were undeniably superior to those of Sublett’s. For
example, the job description for the team leader position
rated past supervisory experience as “highly desirable.” At
the time she was being considered for these promotions,
No. 05-1213 11
Sublett had no supervisory experience. The successful
candidates, in contrast, had two and nine years of supervi-
sory experience respectively. See Payne v. Milwaukee
County, 146 F.3d 430, 434 (7th Cir. 1998). The job descrip-
tion also indicated that some college study was desirable.
Sublett’s post-secondary education was limited to an eight-
month administrative assistant training program. Roberts,
on the other hand, had a bachelor of science degree in
business, and Shoptaw had an associates degree in business
and was enrolled in college marketing classes for two years.
Although evidence showing that the person who was hired
was less qualified than the plaintiff may sometimes suffice
to show pretext, see Ash v. Tyson Foods, Inc., 126 S.Ct.
1195, 1197 (2006), the difference must be a significant one.
As we held recently in Mlynczak v. Bodman, “evidence of
the applicants’ competing qualifications does not constitute
evidence of pretext unless those differences are so favorable
to the plaintiff that there can be no dispute among reason-
able persons of impartial judgment that the plaintiff was
clearly better qualified for the position at issue.” 442 F.3d
1050, 1159 (7th Cir. 2006) (relying on Millbrook v. IBP, Inc.,
280 F.3d 1169 (7th Cir. 2002)). The evidence to which
Sublett points to show that she was at least as qualified for
the position falls short. She notes only that she had more
seniority than Roberts and that she had better relations
with other employees. This is not enough to meet her
burden. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137,
1141-42 (7th Cir. 1998) (finding discrimination did not occur
where an employee with more seniority was passed over for
a position, because the less senior employee had superior
qualifications for the position); Dunn v. Nordstrom, Inc.,
260 F.3d 778, 787 (7th Cir. 2001) (holding employer entitled
to weigh plaintiff’s accomplishments against deficiencies).
Sublett ran into a different problem with the March
2002 promotion: the district court found that her claim
could not succeed because she never applied for that
12 No. 05-1213
position. Not surprisingly, this court has held that “[i]f a
plaintiff does not apply for a vacancy that is posted, [she]
cannot make a prima facie case for unlawful discrimina-
tion . . . under Title VII unless [she] demonstrates that
the employer’s discriminatory practices deterred [her]
from applying.” Hudson v. Chicago Transit Auth., 375 F.3d
552, 558 (7th Cir. 2004); see also Grayson v. City of Chicago,
317 F.3d 745, 748 (7th Cir. 2003) (holding that in a failure
to promote claim the plaintiff must show that she applied
for and was rejected for the promotion to establish an
adverse employment action). The promotion available in
March 2002 was a night-shift team leader position. When
Hosier and Perkins asked Sublett which shift she wanted,
she said that she was interested in the day-shift position.
The district court rightly rejected Sublett’s contention that
Wiley violated her rights by not considering her for a
position in which she did not express an interest.
We add for the sake of completeness that our examination
of the record also convinces us that Sublett has not offered
evidence showing that Wiley’s reasons for its 2002 decisions
were pretextual. There is nothing suspect about the fact
that each of the individuals initially promoted to the team
leader positions either quit or transferred from these posts.
Nor can Sublett prevail by showing that a more astute
employer would have evaluated the candidates’ relative
qualifications differently. She had to present some evidence
that Wiley’s stated reasons for hiring these employees were
lies, and she has not done so. See Hudson, 375 F.3d at 562.
Finally, without any evidence that Wiley always picked
internal candidates (and there is none), the fact that
Shoptaw was hired from outside the company also fails to
help Sublett.
Sublett’s final effort to salvage the 2002 claims is to
criticize the district court for failing to consider Wiley’s
actions in the light of the entire record. In her view, the
allegedly discriminatory action in 2000, as well as Wiley’s
No. 05-1213 13
alleged ongoing history of discrimination against African-
Americans, put the 2002 actions in a different light. The
district court, however, did not ignore anything that it
was required to consider. (In fact, the court patiently waded
through Sublett’s presentations, even though it expressed
frustration with her “egregious departure” from the court’s
local rules governing summary judgment motions.) Al-
though a plaintiff can demonstrate pretext in a variety of
ways, including by presenting evidence of the employer’s
past treatment of the plaintiff or its practices with respect
to minority employment, see McDonnell Douglas, 411 U.S.
at 804-05, it is not clear how the stray comments Sublett
identifies here, while offensive and inappropriate, support
her argument that Hosier and Perkins were lying when
they said that they did not initially promote Sublett
because she was not as qualified as the selected candidates.
Sublett failed to support her claim that Wiley’s alleged
failure to promote any African-Americans was circumstan-
tial evidence of pretext with sufficient information about
the relevant applicant pool. Because Sublett’s evidence in
response to Wiley’s summary judgment motion did not
support either her prima facie case or a finding of pretext,
the district court correctly granted summary judgment in
Wiley’s favor on the claims relating to the 2002 promotions.
IV
Sublett’s next complaint relates to the somewhat negative
performance evaluations she received in 2001 and 2002,
which she believes were motivated by race. A negative
performance evaluation, however, does not in itself consti-
tute an adverse employment action. See Haywood v. Lucent
Tech., Inc., 323 F.3d 524, 532 (7th Cir. 2003). Nonetheless,
negative performance evaluations may serve as direct
evidence of other discrimination or as evidence at the
pretext stage to suggest that the defendant’s articulated
14 No. 05-1213
reasons for the plaintiff’s adverse employment action are
false. Id.On appeal, however, Sublett presents no evidence tending
to show whether the 2001 and 2002 reviews depict anything
other than an accurate description of her job performance.
Sublett’s only argument with respect to this claim appears
to be her own view that she deserved a higher rating. This
is not enough. As we have noted, “it is . . . axiomatic that a
plaintiff’s conclusory statements do not create an issue of
fact. . . . ‘An employee’s self-serving statements about his
ability . . . are insufficient to contradict an employer’s
negative assessment of that ability.’ ” Jackson v. E.J. Brach
Corp., 176 F.3d 971, 985 (7th Cir. 1999) (quoting Gustovich
v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th
Cir. 1992) (internal citation omitted)). Sublett has done no
more than this; she has thus failed to raise a question of
material fact with respect to the performance reviews.
V
Sublett finally also argues that Wiley unlawfully re-
taliated against her for filing a discrimination complaint by
giving her negative performance evaluations in 2001 and
2002 and then failing to promote her in 2002. In Stone v.
City of Indianapolis Public Utilities Division, 281 F.3d 640(7th Cir. 2002), we clarified the standard for sum-
mary judgment on retaliation claims under Title VII. There
are two distinct ways in which a plaintiff may establish a
prima facie case for unlawful retaliation. First, the plaintiff
may “present direct evidence (evidence that establishes
without resort to inference from circumstantial evidence)
that [she] engaged in protected activity (filing a charge of
discrimination) and as a result suffered the adverse employ-
ment action of which [she] complains.” Stone, 281 F.3d at
644. Second, the plaintiff may proceed under a framework
similar to the McDonnell Douglas burden-shifting test by
No. 05-1213 15
showing that: “1) after lodging a complaint about discrimi-
nation, 2) only [she], and not any otherwise similarly
situated employees who did not complain, was 3) subjected
to an adverse employment action even though 4) [she] was
performing her job in a satisfactory manner.” Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003)
(quoting Stone, 281 F.3d at 642). “Failure to satisfy any one
element of the prima facie case is fatal to an employee’s
retaliation claim.” Hudson, 375 F.3d at 560. Even if a
plaintiff establishes a prima facie case, the employer is
entitled to summary judgment “unless there is a material
issue of fact as to whether the employer’s non-invidious
reason is pretext for retaliation.” Hudson, 375 F.3d at 560.
In granting summary judgment for Wiley, the district
court reasoned that “too much time passed between the
July 2000 exploration of reasons for her failure to receive a
senior CCR position and the February 2002 promotion
of Roberts to team leader for any telling temporal con-
nection to exist from which the required causal relationship
could be inferred.” The district court’s reference to
a “required causal relationship” was not entirely accurate,
since the employee is not required to present proof of a
causal link between the protected expression and the
adverse employment action to establish a prima facie
case under the indirect method. Johnson, 325 F.3d at 897.
Nonetheless, this error was harmless.
Sublett did not point to employees who were similarly
situated to her for purposes of the 2002 promotions. It
was up to her to find others who were “directly compa-
rable in all material respects.” Hudson, 375 F.3d at 561(quoting Patterson v. Avery Dennison Corp., 281 F.3d 676,
680 (7th Cir. 2002)). Specific factors include whether the
employees: “1) held the same job description, 2) were
subject to the same standards, 3) were subordinate to the
same supervisor, and 4) had comparable experience,
education, and other qualifications—provided the em-
16 No. 05-1213
ployer considered these latter factors in making the person-
nel decision.” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d
520, 532 (7th Cir. 2003). As our earlier discussion shows,
however, Sublett was not comparable to the people who
received the jobs in 2002 in the critical areas of education
and work experience.
Sublett also alleges that the district court erred in
granting summary judgment in favor of Wiley with respect
to her claim that her negative performance evaluations
in 2001 and 2002 were a form of retaliation for her com-
plaint alleging race discrimination. As noted above, the
2001 Annual Performance Review used four possible
ratings: “Outstanding Performance,” “Exceeds Performance
Expectations,” “Proficient,” and “Needs Improvement.”
Sublett received “Proficient” ratings in all six categories;
her evaluation also included notations from her supervisors
expressing their desire to see her become more of a leader
and take more initiative within the department. On the
basis of this review, Sublett received a 4% merit pay
increase. In 2002, the review form was similar in all
respects, with a roughly equivalent rating scale. Sublett’s
ratings were in the middle to lower-middle range. Based on
the 2002 review, Sublett received a 3% salary increase.
As the basis for her retaliation claim, Sublett argues that
these reviews, which were issued after she began complain-
ing about race discrimination within the company, were
considerably worse than her 2000 performance review. The
format of the 2000 review, however, was dramatically
different from the 2001 and 2002 review forms. For exam-
ple, as compared to the six categories of evaluation on the
2001 and 2002 forms, the 2000 review contained 40 sepa-
rate areas of evaluation. Additionally, in contrast to the
three ratings an employee could receive for each category in
2000, there were four qualitative options on the 2001 and
2002 forms.
No. 05-1213 17
A reasonable trier of fact could not find that Sublett’s
2000 reviews were better than the 2001 and 2002 reviews
about which she complains. Although she received top
ratings in three categories in her 2000 reviews, she received
a middle-tier evaluation in the other 37 categories. In 2002,
in addition to receiving four ratings that were equivalent to
the “Proficient” ratings she received in 2001, she received
two ratings that were one step below the highest ratings.
This is not enough to permit a finding that Wiley
impermissibly retaliated against Sublett by issuing her the
performance reviews she received in 2001 and 2002.
VI
We conclude that Sublett’s evidence, construed most
favorably to her, shows at most that certain individuals at
Wiley made some unfortunate remarks and some
contestible promotion decisions. This is not enough to
permit a trier of fact to consider her discrimination or
retaliation claims. We therefore AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-13-06