Gregory Barnes v. Board of Trustees of the Unive ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1781
GREGORY L. BARNES,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS and MARK
DONOVAN,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division
No. 1:16-cv-08278 — Virginia M. Kendall, Judge.
____________________
ARGUED DECEMBER 17, 2019 — DECIDED JANUARY 3, 2020
____________________
Before RIPPLE, SYKES, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Gregory Barnes, who is African
American, sued the Board of Trustees of the University of Il-
linois and Mark Donovan, a former university administrator,
for racial discrimination under Title VII of the Civil Rights Act
of 1964 and 42 U.S.C. § 1983 after Donovan promoted a white
applicant instead of Barnes. Barnes contests the district
court’s entry of summary judgment in favor of the
2 No. 19-1781
defendants. Because Barnes did not present evidence that Do-
novan’s stated reason for selecting this applicant was a pre-
text for discrimination, we affirm.
Barnes works as an engineer in the facilities management
department at the University of Illinois Chicago (“UIC”). UIC
is divided into a west campus, which contains the hospital
and medical buildings, and an east campus, which consists of
other university buildings. UIC employs three chief engineers
who manage the east campus, the west campus, and utilities,
respectively, and who supervise the multiple assistant chief
engineers on each campus. The three chief engineers report to
the Vice Chancellor for Administrative Services who, at all
relevant times, was Mark Donovan. UIC hired Barnes in 2008
as a plant operating engineer and later promoted him to as-
sistant chief engineer on the east campus.
The operating engineer positions at UIC are classified as
civil-service jobs under the State University Civil Service Sys-
tem (“SUCSS”). SUCSS classifies civil-service jobs and sets the
minimum qualifications required for a position based on its
classification. To be considered for a chief engineer position,
applicants must take a civil-service exam and complete an ap-
plication describing their education, work experience, and job
responsibilities. Applicants who meet the minimum qualifi-
cations are placed on the civil-service register and, when a
chief engineer position opens up, all applicants who received
one of the top three scores are asked if they are interested in
the position. SUCSS does not dictate the interview process; af-
ter it determines the pool of qualified candidates, the head of
the department with the opening decides which candidates to
interview.
No. 19-1781 3
In late 2015, the chief engineer for the west campus retired,
and UIC posted the open job. The UIC human resources de-
partment, which maintains the civil-service register, compiled
a list of the eleven candidates, including Barnes, who received
one of the top-three exam scores and met the minimum qual-
ifications. Of these eleven candidates, two were African
American and nine were white, and ten had experience as as-
sistant chief engineers at UIC.
Donavan was solely responsible for hiring the chief engi-
neer, who would report directly to him. As a result, Donovan
felt most comfortable interviewing the candidates alone. Do-
novan decided to interview all eleven candidates. Before each
interview, Donovan reviewed the candidate’s application, but
he did not look at any personnel files or performance evalua-
tions. After the interviews, Donovan selected Anthony Civito,
who is white, as the new chief engineer for the west campus.
Civito and Barnes both have several decades of education
and relevant experience as operating engineers. Civito
worked as a senior head engineer for Professional Business
Providers at Midway Airport from 2000 until 2011. UIC hired
Civito as a plant operating engineer in 2011 and promoted
him to an assistant chief the following year. When UIC first
promoted Civito, he worked on the east campus. He later in-
formed Donovan that he had an interest in working on the
west campus because of the different challenges it posed, and
Donovan moved him.
Barnes was an engineer at the Sheraton Chicago Hotel and
Tower from 1992 to 2005. He began as an apprentice before he
was promoted to general maintenance and then, in 1999, to
operating engineer. Barnes also worked at Governors State
University as a power plant engineer before moving to UIC in
4 No. 19-1781
2008. UIC promoted Barnes to an assistant chief engineer on
the east campus in 2010.
Donovan interviewed Barnes for 15 to 30 minutes. Barnes
did not bring anything with him to the interview, nor had he
been asked to. Barnes recalled that during the interview Do-
novan asked him to “tell him about myself” as well as “what
I would do” and “how I would help the university.” Barnes
answered that he would implement “systems that help save
money for the university” and “dress codes for the engi-
neers.” Barnes shared that he would work to get the best
prices from vendors and implement a new maintenance pro-
gram to identify faulty pipes during the summer, rather than
waiting until they froze in the winter.
Donovan interviewed Civito for about 20 minutes. Civito,
unprompted, brought written materials to the interview in-
cluding his civil-service application, his résumé, a letter of ref-
erence, a narrative work history, a proposal to solve problems
with a UIC building, and several trainings he developed to
teach engineers about working on different systems. Civito
recalls that Donovan asked him questions related to opera-
tional processes during the interview and asked how Civito
would handle certain scenarios, although he does not remem-
ber the specifics.
After Donovan promoted Civito, Barnes sued, alleging
that Donovan failed to promote him because of his race and
that the university has a practice or custom of not promoting
African Americans to the chief engineer level. Barnes believed
that he was more qualified for the position because of his
years working at the Sheraton Hotel and the high standard
for customer service that he learned there, as well as the dif-
ferent mechanical systems that he had worked on outside the
No. 19-1781 5
university. Barnes also learned during discovery that in per-
formance reviews filled out by the same supervisor, he had
received a higher score than Civito. Both Barnes and Civito
received an overall rating of “Meets Expectations” in their Oc-
tober 2014 reviews, but Barnes scored 17/21 to Civito’s 15/21.
When deciding whom to hire, Donovan did not review or
consider performance reviews because he “did not believe
that the reviews were a good indicator of performance or
readiness to advance to the next level.” Instead, Donovan con-
sidered only the interviews. He attests that he selected Civito
because he came to his interview fully prepared and with ex-
tensive materials and, during the interview, articulated the
most thoughtful approach to taking over the chief engineer
position, demonstrated a commitment to professional devel-
opment by taking continuing coursework, and discussed his
previous experience as a senior head engineer supervising an
operation of dozens of people at Midway Airport.
The defendants moved for summary judgment, arguing
that Barnes could not show that Civito was not better quali-
fied for the position or that Donovan’s reason for promoting
Civito was a pretext for discrimination. The district court
granted the motion for summary judgment, determining that
Barnes lacked sufficient evidence to support a prima facie
case of discrimination or to allow the inference that the legiti-
mate, nondiscriminatory reason offered for hiring Civito in-
stead of Barnes was pretextual. We review the grant of a mo-
tion for summary judgment de novo, viewing all facts and
making all reasonable inferences in favor of the non-movant.
Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018).
6 No. 19-1781
The legal standard for analyzing racial discrimination
claims under Title VII and § 1983 is the same.1 Lauderdale v. Ill.
Dep't of Human Servs., 876 F.3d 904, 910 (7th Cir. 2017). The
applicable standard at summary judgment is whether the ev-
idence would permit a reasonable factfinder to conclude that
racial discrimination caused the adverse employment ac-
tion—here, the failure to promote. See Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016). Because the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) remains useful for focusing the evidence, and
both parties use it, we also apply that framework. See Johnson
v. Advocate Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir.
2018).
To survive summary judgment on his failure-to-promote
claim, Barnes needed evidence that: (1) he is a member of a
protected class, (2) he was qualified for the position sought,
(3) he was rejected for the position, and (4) someone outside
the protected class who was “not better qualified” was hired
instead. Riley v. Elkhart Community Schools, 829 F.3d 886, 892
(7th Cir. 2016). If there is sufficient evidence from which a jury
could find a prima facie case of discrimination, the burden
shifts to the defendants to produce evidence of a legitimate,
nondiscriminatory reason for hiring Civito over Barnes. Id. at
891. Then the burden shifts back to Barnes to produce evi-
dence that the defendants’ proffered reason was pretextual.
Id. at 892. Because the prima facie and pretext inquiry often
overlap, if a defendant offers a nondiscriminatory reason for
1 Barnes also invokes 42 U.S.C. § 1981, but that statute “does not create a
private right of action against state actors.” Campbell v. Forest Pres. Dist. of
Cook Cty., 752 F.3d 665, 666 (7th Cir. 2014). Rather, § 1983 is “the exclusive
remedy for violations of § 1981 committed by state actors.” Id. at 671.
No. 19-1781 7
its actions, we can proceed directly to the pretext inquiry. See
Scruggs v. Garst Seed Co., 587 F.3d 832, 838 (7th Cir. 2009).
The defendants put forth a legitimate, nondiscriminatory
reason for hiring Civito instead of Barnes: Donovan believed
that, based on his interview, Civito was the best candidate for
the chief engineer position. See Scruggs, 587 F.3d at 838–39 (se-
lecting someone that employer honestly believes is better
qualified for position is legitimate nondiscriminatory reason).
Donovan attested that he believed Civito was the best choice
because, in his interview, he articulated the most thoughtful
approach to taking over the position, including his plan to re-
vamp operating engineer shift picks to reduce labor costs and
his recognition of the need for assistant chiefs to spend more
time in campus buildings identifying problems. Donovan also
attested that Civito addressed specific instances of teaching
his subordinates, provided examples of training materials
that he had created for his team, and discussed a project that
he led on west campus. Barnes denies that Donovan selected
Civito because he had the best interview, but he does not put
forth evidence that suggests Donovan lied about this reason.
He therefore cannot establish pretext, which is not “just faulty
reasoning or mistaken judgment on the part of the employer;
it is [a] ‘lie, specifically a phony reason for some action.’” Ar-
gyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008)
(quoting Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 737
(7th Cir. 2006)).
The best Barnes can do is point to problems with the inter-
view process: it was unstructured, subjective, and therefore,
he contends, unfair. Specifically, Barnes notes that Donovan
conducted the interviews by himself, did not ask the candi-
dates the exact same questions, and did not document why he
8 No. 19-1781
chose Civito for the position. But just because interviews are
not cookie-cutter does not mean they are discriminatory.
And, even if this unstructured and subjective method of in-
terviewing is disfavored, Barnes merely shows that Do-
novan’s process was not “accurate, wise, or well-considered”;
that does not make his stated reason for hiring Civito a lie.
Bates v. City of Chicago, 726 F.3d 951, 956 (7th Cir. 2013) (quot-
ing Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)).
As further evidence of pretext, Barnes argues that Civito
was less qualified for the job, citing the October 2014 perfor-
mance review on which Barnes scored two points higher than
Civito. But both Barnes and Civito had an overall perfor-
mance rating of “Meets Expectations” on this review, and
both had only positive comments from their supervisor. This
is not the substantial gap in credentials that can support an
inference of pretext. See Hudson v. Chi. Transit Auth., 375 F.3d
552, 562 (7th Cir. 2004). Moreover, Donovan testified that he
did not consult performance reviews in making his decision
because he did not believe that they were a good indicator of
performance. Whether this was wise is, again, not a question
of pretext, which looks only to veracity. See Forrester v. Rau-
land-Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006). Barnes has
criticized the hiring process, but has not brought forth any ev-
idence that this process was used to hide racial discrimina-
tion. See Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir.
2014).
Barnes also argues that failing to promote him to chief en-
gineer was discriminatory because UIC has a history of failing
to promote African Americans and because an African Amer-
ican has never been a chief engineer. An employer’s policy
and practice with respect to employing members of protected
No. 19-1781 9
classes “can be relevant evidence of pretext or discrimina-
tion,” but that evidence “must undercut the specific justifica-
tions given by the employer.” Ford v. Marion Cty. Sheriff's Of-
fice, 942 F.3d 839, 858 (7th Cir. 2019) (alleging “an ‘ongoing
history of discrimination’” is “not enough to impugn a partic-
ular employment decision”). And, although Barnes argues
that Donovan perpetuated a history of discrimination by
choosing to promote Civito, he did not contradict the defend-
ants’ evidence that Donovan had previously promoted Afri-
can Americans to head positions on campus, and had previ-
ously encouraged African Americans to apply for chief engi-
neer.
Further, to the extent that Barnes seeks to hold UIC liable
for its “history of failing to promote African Americans to its
highest positions,” he has not pursued a disparate-impact the-
ory, which would require “isolating and identifying the spe-
cific employment[] practices that are allegedly responsible for
any observed statistical disparities.” Puffer v. Allstate Ins. Co.,
675 F.3d 709, 717 (7th Cir. 2012) (quoting Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 994 (1988). Nor has he shown that
intentional racial discrimination was a “pattern or practice” at
UIC. See id.As a final note, the district court held that the Eleventh
Amendment barred Barnes’s § 1983 challenge against the
Board. Barnes does not specifically challenge the judgment on
his purported constitutional claim against the Board, but we
wanted to clarify the grounds on which it fails. Although con-
stitutional immunity extends to non-consenting arms of the
state, see Carmody v. Bd. of Tr. of Univ. of Ill., 893 F.3d 397, 403
(7th Cir. 2018), in a suit under § 1983 there is no need to resort
to constitutional principles. “[Q]uestions of sovereign
10 No. 19-1781
immunity do not arise because § 1983 does not create a claim
against a state for damages.” Kolton v. Frerichs, 869 F.3d 532,
536 (7th Cir. 2017). The Board of Trustees, as part of the State,
is not a “person” capable of being sued for damages under
§ 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989); Haynes v. Ind. Univ., 902 F.3d 724, 731 (7th Cir. 2018).
Although, in his complaint, Barnes requested an injunction
“to abolish discrimination,” he never pursued an injunction,
so he does not have a claim under Ex parte Young, 209 U.S. 123(1908).
For the foregoing reasons, we affirm the district court’s en-
try of summary judgment.