Kelly Hobbs v. City of Chicago ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3591
K ELLY H OBBS,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO, a municipal corporation,
JOSEPH S ENESE, and P AT Q UINN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CV 3795—Samuel Der-Yeghiayan, Judge.
A RGUED O CTOBER 20, 2008—D ECIDED JULY 21, 2009
Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Kelly Hobbs, an African-Ameri-
can woman, was passed over for a promotion during
her employment with the City of Chicago and claimed
race and gender discrimination, retaliation, and the
existence of a hostile work environment. We affirm the
district court’s grant of summary judgment to the defen-
dants because Hobbs failed to show she was similarly or
better qualified than the white male who received the
2 No. 07-3591
promotion and because she cannot show she suffered
retaliation or a hostile work environment as a result of
her discrimination complaint.
I. BACKGROUND
Kelly Hobbs, an African-American woman, began
working for the City in 1989 as a Motor Truck Driver in
the City’s Department of Transportation (“DOT”) after
attending the University of Illinois at Chicago for four
and a half years. Although she no longer worked on
truck duty, she retained the title of Motor Truck Driver.
In 2000, Hobbs received the responsibilities of Lot Super-
visor at the 103rd Street Lot. She served as the only
African-American or female Lot Supervisor in the DOT.
Many of Hobbs’s job duties as Lot Supervisor at the 103rd
Street Lot, including preparing time sheets and dealing
with Fleet Management, also were duties listed in the
Foreman’s job description. She appeared to be the daily
face of authority, but she was never paid as a foreman.
No one ever complained about Hobbs’s job performance.
In 1997 and in 2000, Hobbs applied for and interviewed
for the Foreman position, but both times a white male
received the job. In 2000, Defendant Joseph Senese was
chosen over Hobbs as Foreman. Then, in October 2004,
Hobbs learned that Defendant Pat Quinn, also a white
male, had received a promotion to Acting Foreman
three months earlier.
Quinn began working as a Motor Truck Driver in 1986,
and he worked as a Lot Supervisor on and off from 2002
No. 07-3591 3
to 2004. Quinn described himself as “computer illiterate,”
while Hobbs claimed to be computer proficient. In
2004, after Senese said he needed help supervising on the
street, the DOT’s new First Deputy Commissioner Brian
Murphy appointed Quinn as Acting Foreman on Senese’s
recommendation alone. Murphy did not consider Hobbs
for the position. Senese and Quinn had known each other
for thirteen years since their work together as Motor
Truck Drivers. Senese knew Quinn’s work ethic and that
Quinn had volunteered in the snow program for eight
years. Hobbs had only driven a snow plow once. The
DOT supervised the City’s Streets and Sanitation’s pro-
gram coordinating snow removal.
The City did not post the Acting Foreman position
to which Quinn was promoted because an “acting” posi-
tion is not considered a vacancy and need not be competi-
tively bid. The City’s union contract requires the City
to post a position after an individual is in the “acting”
position for more than 90 days, but the position may be
extended by mutual agreement of the parties. The federal
monitor in Shakman v. Democratic Organization of Cook
County, No. 69 C 2145 (N.D. Ill.), stated in a Decem-
ber 2007 report that the City has repeatedly taken ad-
vantage of the “acting” policy by allowing individuals
to move up to and stay in higher pay grade positions
for longer than 90 days, leading to unchecked politically
connected appointments in violation of the Shakman
decree, which bans the use of politics in City hiring. In
December 2006, the federal monitor removed Quinn
from the Acting Foreman position.
4 No. 07-3591
In January 2005, Hobbs filed a charge of discrimina-
tion against the DOT with the Illinois Department of
Human Rights and the EEOC, alleging the City denied her
a promotion to Foreman because of her race and gender.
According to Hobbs, word spread about the filed
charges. In April 2005, her supervisors reprimanded her
for violating a City policy by swiping out early. Hobbs
says other white male co-workers were not reprimanded
for more serious infractions, such as cursing at Quinn
and sleeping during work hours. On April 24, 2005, the
same day Hobbs received a notice of her disciplinary
hearing, Hobbs confronted Quinn about the swiping out
early infraction, and an argument ensued during which
Hobbs shouted at Quinn and alleged that he gave her
permission to swipe out early to pick up her daughter
from school. Quinn later testified in his deposition that
no other employee had ever cursed or shouted at him
and that the employee that slept on the job was disci-
plined. Quinn reported Hobbs for insubordination.
Hobbs eventually received an oral reprimand for
swiping out early, which was later rescinded. She also
received a three-day suspension for shouting at Quinn.
The deputy commissioner who presided over both of
Hobbs’s disciplinary hearings did not know about her
EEOC charge.
The day Hobbs received her disciplinary notice for
swiping out early, she alleges someone vandalized her
personal vehicle while it was parked in the secure DOT
parking lot. Hobbs claims she saw Quinn and another
white male employee standing next to her car twenty
No. 07-3591 5
minutes before the vandalism occurred. Hobbs com-
plained to Senese about the vandalism and accused
Quinn, but Senese allegedly dismissed Hobbs’s allega-
tions and did not investigate the complaint. Hobbs re-
ported the vandalism to in-house Construction Deputy
Commissioner William Cheaks, who told her he would
look into it and get the “heat” off of her, but never did.
Hobbs complains she was assigned work duties to
humiliate her and that Quinn and other white male
co-workers congregated outside her office door, which
intimidated her. Hobbs also alleges that her job duties
changed when Quinn became Acting Foreman. She
had been assigned to drive a truck only once from 1994 to
2002, but after November 2004, she received truck
driving responsibilities twenty times. Quinn allegedly
told others Hobbs had no authority to give drivers assign-
ments. On Christmas Eve 2005, Hobbs was assigned to
transport a truck across the city and then was told she
had the wrong truck and had to repeat the trip that day.
Quinn and Senese testified that they asked Hobbs to
drive only when there was a shortage of Motor Truck
Drivers and that driving is part of a Lot Supervisor’s
duties. On February 8, 2006, Senese told Hobbs her com-
mercial driver’s license was invalid, and as a result, she
lost a day of pay. But when she went to the Secretary of
State to clear up the matter, she was told the state had
never sent the City anything about her license and that it
remained valid. During discovery, the City presented a
Driver’s License Verification Action Status Report
dated February 6, 2006, with Hobbs’s name on it.
6 No. 07-3591
On July 13, 2006, Hobbs filed the instant lawsuit
alleging race and gender discrimination and retaliation
claims in violation of 42 U.S.C. § 1981 against all defen-
dants; race and gender discrimination and retaliation in
violation of Title VII against the City; a hostile work
environment claim against the City; and equal protection
claims against all defendants pursuant to 42 U.S.C. § 1983.
The district court granted the City’s motion to dismiss
the section 1981 race and retaliation claims and the
section 1983 claim against the City. The remaining
claims were Title VII race and gender discrimination and
retaliation claims against the city, section 1981 race dis-
crimination and retaliation claims and section 1983
equal protection claims against the individual defendants.
Hobbs appeals the district court’s grant of summary
judgment in favor of the defendants on all of the
claims except the equal protection ground.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo and view the facts and draw all inferences
in the light most favorable to the nonmoving party. Winsley
v. Cook County, 563 F.3d 598, 602 (7th Cir. 2009). A
district court properly grants summary judgment
where there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
No. 07-3591 7
A. The district court properly granted summary judg-
ment on Hobbs’s Title VII and section 1981 claims.1
Hobbs argues she suffered race and gender discrimina-
tion because the City failed to promote her, or even
consider her for promotion, to the position of Acting
Foreman in 2004. She proceeds on the indirect, bur-
den-shifting method set out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a
plaintiff successfully establishes a prima facie case of
discrimination by the indirect method if she shows that:
(1) she is a member of a protected class; (2) she is
qualified for the position; (3) she was rejected for the
position; and (4) the position was given to someone
outside the protected class who was similarly or less
qualified than she. Jackson v. City of Chi., 552 F.3d 619, 622
(7th Cir. 2009). The presumption of discrimination
created by establishing a prima facie case shifts the
burden to the defendant “to produce a legitimate,
noninvidious reason for its actions.” Atanus v. Perry, 520
F.3d 662, 672 (7th Cir. 2008). If the defendant rebuts
the prima facie case, the burden then shifts back to the
plaintiff to show that the reasons proffered by the defen-
dant are merely pretextual. Id.
Because the City does not contest the first three elements
of the prima facie case, we focus on the fourth prong.
1
We analyze Hobbs’s section 1981 and Title VII claims
together because they both require the plaintiff to prove the
same prima facie elements. See Antonetti v. Abbott Labs., 563
F.3d 587, 591 n.4 (7th Cir. 2009).
8 No. 07-3591
Hobbs asserts she was similarly or better qualified for
the position than Quinn because she had more ex-
perience as a Lot Supervisor, and she possessed
computer skills and a college education that Quinn did not.
We agree with the district court that Hobbs failed to
show that she was as qualified or more qualified than
Quinn. Commissioner Murphy appointed Quinn on the
recommendation of Senese, who knew Quinn and had
worked with him in the past on the streets and was
aware of Quinn’s work ethic because they had known
each other for thirteen years. Senese also recommended
Quinn for the job because of the latter’s experience in
the City’s snow program. Quinn had volunteered with
the snow program for years, while Hobbs had refused to
do so. Moreover, Quinn had at least two more years
experience than Hobbs as a Motor Truck Driver. Even
though Hobbs had more experience as a Lot Supervisor,
Senese was particularly interested in hiring someone
who could help him on the streets. Hobbs further
suggests that she was better qualified because she
attended college and was computer proficient, while
Quinn had neither qualification. That may be true, but it
does not help Hobbs because college education and
computer skills were not part of the job qualifications for
Acting Foreman.
Hobbs posits that because the City deviated from its
formal written procedures of posting the Acting
Foreman position as a vacancy, a prima facie case of
discrimination must be presumed. Hobbs relies on Loyd
v. Phillips Bros., Inc., 25 F.3d 518 (7th Cir. 1994), for the
No. 07-3591 9
proposition that since the City deviated from its policy,
she must show only that “but for such a practice she
likely would have been approached” and that if ap-
proached, she would have accepted the position. Loyd, 25
F.3d at 523. But Hobbs’s reliance on Loyd is misplaced
because Loyd instructs that if an employer disregards
an application process, the employer cannot defeat a
plaintiff’s prima facie case by arguing that the plaintiff
did not apply for a position. The employee must still meet
the fourth prong of the prima facie case and prove her
superior qualifications. See id.; see also Fischer v. Avanade,
Inc., 519 F.3d 393, 402 & n.2 (7th Cir. 2008). The City
conceded that Hobbs expressed interest in the position, so
the real inquiry is whether Hobbs was better qualified
than Quinn, and as explained above, Hobbs failed to
show her qualifications equaled or surpassed Quinn’s.
See Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527,
533 (11th Cir. 1992) (deciding that because the em-
ployer failed to post the opening or accept applications,
the plaintiff did not need to show that he applied, but he
still needed to show that he was more qualified for
the position in order to establish a prima facie case of
discrimination).
Even if Hobbs satisfied the prima facie case, the City has
offered nondiscriminatory reasons for promoting Quinn,
which Hobbs failed to show are pretextual. “Pretext is a
‘lie, specifically a phony reason for some action.’ ” Sublett
v. John Wiley & Sons, Inc., 463 F.3d 731, 737 (7th Cir. 2006)
(quoting Russell v. Acme-Evans, Co., 51 F.3d 64, 68 (7th
Cir. 1995)). To demonstrate pretext, Hobbs must show:
(1) the City’s “nondiscriminatory reason was dishonest”;
10 No. 07-3591
and (2) the the City’s “true reason was based on a dis-
criminatory intent.” Fischer, 519 F.3d at 403 (internal
quotation marks and citation omitted).
Hobbs did not show that the City lied about its
reasons for promoting Quinn. As evidence, Hobbs asserts
that the Department of Streets and Sanitation, not the
DOT, runs the snow program 2 and that Senese never
said he needed help on the streets prior to promoting
Quinn. But Hobbs is mistaken on both counts. Quinn
volunteered to work the snow program, while Hobbs
refused to do so, which demonstrated to Senese Quinn’s
willingness to work on the streets—one of the qualities
Senese was looking for in an Acting Foreman. The
City refuted Hobbs’s contention that Senese lied about
needing more help when it showed that in the summer
of 2004, Murphy questioned Senese about why he was not
completing certain tasks and Senese explained he needed
help. Hobbs also asserts that Murphy acted as Senese’s
cat’s paw when he appointed Quinn, but we fail to see
how that assertion proves pretext.
Hobbs further argues that the district court erred
because it improperly required her to demonstrate
2
Hobbs also asserts that the timing of Quinn’s promotion
shows the City’s snow program explanation is a lie. Quinn
was appointed in August, and if the City had followed the 90-
day rule regarding appointments to Acting positions, his
appointment would have ended in November, before the
beginning of the winter season. This argument fails because
the City’s Union Contract allowed for the extension of the 90-
day period by mutual agreement of the parties.
No. 07-3591 11
both pretext and discriminatory animus. Hobbs is incor-
rect. Our recent Title VII cases explain that a plaintiff
demonstrates pretext by showing the employer’s
proffered nondiscriminatory reason is a lie and the real
reason is based on discriminatory intent. See, e.g., Fischer,
519 F.3d at 403; Brown v. Ill. Dep’t of Natural Res., 499
F.3d 675, 683 (7th Cir. 2007); Keri v. Bd. of Trs. of Purdue
Univ., 458 F.3d 620, 646 (7th Cir. 2006) (“In a word, the
Plaintiff must establish that . . . [the employer’s] reasons . . .
were merely made up to cover up . . . discriminatory
reasons.”). That is precisely what the district court
required of Hobbs, but she failed to prove either. Hobbs’s
mere assertion that she is better qualified will not do
the trick to prove the City is lying about the real
reason it picked Quinn for the spot. Evidence of Hobbs’s
qualifications only would serve as evidence of pretext if
the differences between her and Quinn were “so
favorable to the plaintiff that there can be no dispute
among reasonable persons of impartial judgment that
the plaintiff was clearly better qualified for the position
at issue.” Mlynczak v. Bodman, 442 F.3d 1050, 1059-60
(7th Cir. 2006) (quoting Millbrook v. IBP, Inc., 280 F.3d 1169,
1180 (7th Cir. 2002)).
Moreover, Hobbs has not shown that the City’s real
reason for picking Quinn was race or gender discrimina-
tion. Hobbs maintains there are no African-American or
female Foremen—while a City supervisor testified that
there were three African-American General Foremen—but
she did not support her contention with admissible
evidence. See Sublett, 463 F.3d at 739 (plaintiff failed to
support her claim that defendant’s alleged failure to
12 No. 07-3591
promote any African Americans was circumstantial
evidence of pretext with sufficient information about
the relevant applicant pool). We also note that Hobbs
did not raise a disparate impact claim.
Hobbs also put forth no personal knowledge of racial
or sexist statements or conduct in her attempt to demon-
strate pretext. Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.
1996) (“An employer’s knowledge that the plaintiff is a
member of a protected class is obviously not enough to
cast doubt on that employer’s proffered reason for re-
jecting a candidate. . . .”). Hobbs testified in her
deposition that she never heard anyone in the depart-
ment make derogatory comments about African Ameri-
cans. She also testified that Senese on occasion told her
to send drivers home because they could not drive a stick.
Hobbs assumed Senese meant women, but could not
remember if he actually used the word “women.” She
also stated that a co-worker told her Quinn made com-
ments about not assisting women get jobs. But Hobbs
could not point to any derogatory remarks made
about women in her presence.
Although the process through which Quinn received
his promotion might be questionable, it does not prove
gender or race discrimination. It might suggest favoritism
on some other basis, and in fact, the federal monitor
removed him from the Acting Foreman position. That
Hobbs did not believe Quinn deserved the job is not
enough to survive summary judgment. See Blise v.
Antaramian, 409 F.3d 861, 867 (7th Cir. 2005) (“[The court
does] not sit as a superpersonnel department where
No. 07-3591 13
disappointed applicants or employees can have the
merits of an employer’s decision replayed to determine
best business practices.”) (internal quotation marks
and citation omitted). Therefore, we affirm the district
court’s grant of summary judgment in favor of the defen-
dants on Hobbs’s Title VII and section 1981 claims.
B. Hobbs’s retaliation claim fails.
Hobbs further argues she proved through the direct
method that the City took adverse actions against her
in retaliation for her discrimination complaints with the
EEOC and the Illinois Department of Human Rights.
Title VII protects employees from retaliation as a result
of their discrimination complaints. See 42 U.S.C.
§ 2000e-3(a). Under the direct method of proof, the only
method at issue here, a plaintiff must show that: (1) she
engaged in statutorily protected activity; (2) she suffered
a materially adverse action taken by the employer; and
(3) there was a causal connection between the two.
Humphries v. CBOCS West, Inc., 474 F.3d 387, 404 (7th Cir.
2007). The adverse act must be such that it would “dis-
suade a reasonable employee from making or sup-
porting a claim of discrimination.” Burlington N. and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). There is no
dispute that Hobbs has satisfied the first prong, but
we conclude her claim fails to meet the other two remain-
ing prongs.
Hobbs offers several grounds for her retaliation claim.
First, Hobbs says she was orally reprimanded and sus-
14 No. 07-3591
pended for three days following two disciplinary
hearings, but she has failed to establish a causal connec-
tion because the commissioner who disciplined her
did not know Hobbs filed the EEOC charge. See Tomanovich
v. City of Indianapolis, 457 F.3d 656, 668 (7th Cir. 2006)
(to establish retaliation for a discrimination complaint,
the employer must have actual knowledge of the com-
plaint).
Hobbs also argues she was stripped of the authority
she had enjoyed as Lot Supervisor and was given undesir-
able assignments, such as driving on twenty different
occasions when she had been given a driving assign-
ment only once in the ten years prior to her complaints.
Therefore, her only argument concerns assignments
that were clearly within her job duties. She did not point
to any evidence that she suffered loss of a job title or
received less pay.3 A materially adverse action must be
“more disruptive than a mere inconvenience or an alter-
ation of job responsibilities.” Nagle v. Vill. of Calumet Park,
554 F.3d 1106, 1120 (7th Cir. 2009) (quoting Crady v. Liberty
Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th
Cir. 1993)). The change in Hobbs’s job duties correlates
temporally to Quinn’s promotion rather than to her
discrimination complaints. Prior to Quinn’s appoint-
3
Hobbs retained the title of Motor Truck Driver, but was one
of the Motor Truck Drivers in her yard that also had the
extra duty of being a Lot Supervisor. Lot Supervisors do not
receive extra pay, but perform supervisory duties, such as
relaying daily work assignments, checking equipment and
driving a truck when needed.
No. 07-3591 15
ment, Hobbs supervised daily truck operations and
drivers and handed out assignments. Once Quinn took
over as Acting Foreman, he assumed these responsibi-
lities. Quinn’s elevation—not Hobbs’s complaints—was
the reason her responsibilities changed.
Hobbs also suggests that she suffered intimidation
when several white male co-workers congregated outside
her office to talk. She also takes issue with the City requir-
ing proof of a valid commercial driver’s license. Neither
of these qualify as adverse actions. Workers were
allowed to be in the area outside her office, which
she shared with about five other people. Also, the City
requires proof of a valid commercial driver’s license for
all Motor Truck Drivers. During discovery, the City
provided the document that showed Hobbs was listed
as one of the driver’s whose license needed to be verified.
Hobbs’s final basis for her retaliation claim—the failure
to investigate her car vandalism—is more troubling.
Damaging one’s property is a serious allegation, and
Hobbs argues Senese told her he could not talk to her about
the vandalism because of her discrimination complaint.
However, Senese knew he was named in the charge and
his own conduct was being investigated by the EEOC. It
would have been odd for Senese—the very person Hobbs
was complaining about—to investigate her allegation.
Hobbs then went to Commissioner Cheaks, who also
did not investigate her accusation. However, Hobbs
presented no evidence that Cheaks actually knew about
her EEOC charge. See Tomanovich, 457 F.3d at 668. The
mere fact that the vandalism occurred after the EEOC
16 No. 07-3591
charge and the same day that Hobbs received notifica-
tion of a disciplinary action is not enough to survive sum-
mary judgment. See Amrhein v. Health Care Serv. Corp., 546
F.3d 854, 859 (7th Cir. 2008) (“suspicious timing alone
is generally insufficient to establish a genuine issue of
material fact for trial”). So, the district court properly
granted summary judgment on Hobbs’s retaliation claim.
C. Hobbs’s hostile work environment claim also fails.
Finally, Hobbs argues she suffered a hostile work
environment, based on the same facts she set out for her
retaliation claim. The conduct complained of must be
severe or pervasive “so as to alter the conditions of [the
employee’s] environment and create a hostile and abusive
working environment.” Winsley, 563 F.3d at 606 (quoting
Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1043
(7th Cir. 2000)). Retaliatory harassment can rise to the
level of a hostile work environment “if it is severe
enough to cause a significant change in the plaintiff’s
employment status.” Stutler v. Ill. Dep’t of Corrs., 263
F.3d 698, 703 (7th Cir. 2001).
Here, the facts do not rise to the level of the severe
or pervasive threshold. See Walker v. Mueller Indus., Inc.,
408 F.3d 328, 333-34 (7th Cir. 2005). No reasonable jury
could conclude that being assigned duties that were
part of one’s job description and having co-workers con-
gregating outside of a shared office amount to a hostile
work environment. The alleged vandalism of Hobbs’s
car and the failure to investigate it is disgraceful, but
that one act alone is not egregious enough to create a
No. 07-3591 17
hostile work environment. Saxton v. Am. Tel. & Tel. Co.,
10 F.3d 526, 533 (7th Cir. 1993) (“relatively isolated in-
stances of non-severe misconduct will not support a
hostile environment claim”) (internal quotation marks
omitted).
The district court properly granted summary judg-
ment on Hobbs’s hostile environment claim.
III. CONCLUSION
Therefore, we AFFIRM the district court’s grant of sum-
mary judgment to defendants.
7-21-09