Butts, Celestine v. Aurora Health Care

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4061
CELESTINE O. BUTTS,
Plaintiff-Appellant,
v.
AURORA HEALTH CARE, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 932—Aaron E. Goodstein, Magistrate Judge.
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ARGUED SEPTEMBER 15, 2004—DECIDED NOVEMBER 5, 2004
____________
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. Celestine Butts, an African-American
woman, sued her employer, Aurora Health Care, Inc., al-
leging that it failed to promote her because of her race. The
district court (Magistrate Judge Aaron E. Goodstein sitting
by consent) entered summary judgment in favor of Aurora,
concluding that Butts failed to present evidence that the
reason Aurora gave for not promoting her was pretext for
covering up racial discrimination.
Both parties adopted Judge Goodstein’s factual recitation,
which means the facts are undisputed, and we proceed on
2 No. 03-4061
that assumption. Here, then, are the facts. Aurora hired
Butts as a lab technician in August 1997. Two years later,
the company listed six openings for a data analyst position.
Data analysts perform several functions, including creating
and managing files, monitoring data transfers, distributing
reports, and installing and managing software and hard-
ware. The positions required an associate degree in a related
field or equivalent technical training, and 2 years of related
experience in data operations or information system
management. Butts and 16 others applied. Interviews for the
positions were conducted by Aurora’s lab director, Sandra
Butschli, and its data center supervisor, Jacque Tuszkiewicz.
Butschli and Tuszkiewicz eventually narrowed the field to
six candidates, all of whom were white. Both supervisors
felt that Butts, who had less technical experience, was not as
qualified as six other applicants who made the cut.
Butts believed otherwise. After receiving a right-to-sue
letter from the EEOC, without the help of a lawyer, Butts
filed suit, alleging that Aurora’s failure to promote her was
racially motivated in violation of Title VII, 42 U.S.C.
§§ 2000e to 2000e-17. Her original complaint alleged three
claims of discrimination, but she voluntarily dismissed two
of them during a Rule 16 conference, retaining only a claim
that she was denied a promotion to a data support center
analyst position in October of 1999. The Rule 16 conference
was conducted in April of 2002, some 7 months after the
case was filed.
Several months later, after the close of discovery, Judge
Goodstein granted Butts’ motion to “appoint” counsel.1 He
also granted Butts’ request to reopen discovery but denied
1
Courts do not have the authority to “appoint” counsel in a civil
case; they can only ask members of their bar to assist a litigant.
E.g., DiAngelo v. Ill. Dep’t of Public Aid, 891 F.2d 1260, 1262 (7th
Cir. 1989). Attorney Larraine McNamara-McGraw agreed to rep-
resent Ms. Butts. She has done a splendid job representing Ms.
Butts’ interests ever since she came on board.
No. 03-4061 3
her motion to reinstate her previously withdrawn claims.
Trying another tack, Butts moved for leave to amend her
complaint to add claims under 42 U.S.C. § 1981. The judge,
however, denied the motion, concluding that the purported
§ 1981 claims simply recast the claims that were previously
withdrawn. He noted that “[i]t is too late in the case to re-
turn to square one.” Eventually, the judge granted Aurora’s
motion for summary judgment. Butts appeals both the en-
try of summary judgment and the denial of her request for
leave to amend her complaint.
We review the judge’s ruling on a motion for summary
judgment de novo, viewing the evidence in the light most
favorable to Butts. E.g., Mateu-Anderegg v. School Dist., 304
F.3d 618, 623 (7th Cir. 2002). Summary judgment is ap-
propriate if the record shows that there is no genuine issue
as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The mere ex-
istence of an alleged factual dispute will not defeat a summary
judgment motion; instead, the nonmovant must present
definite, competent evidence in rebuttal. E.g., Salvadori v.
Franklin Sch. Dist., 293 F.3d 989, 996 (7th Cir. 2002).
It is well-established that a plaintiff in a Title VII case
may proceed under a direct or indirect method of proof.
Mateu-Anderegg, 304 F.3d at 623. Because Butts offered no
direct evidence of discrimination, she proceeded under the
indirect method set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). In order to survive summary
judgment under McDonnell Douglas, Butts was required to
produce evidence that she was: (1) a member of a protected
class; (2) qualified for the position sought; (3) rejected for
the position; and (4) treated less favorably than a similarly
situated candidate outside her protected class. E.g., Volovsek
v. Wis. Dep’t of Agric., Trade & Consumer Prot., 344 F.3d
680, 692 (7th Cir. 2003). If a plaintiff makes a prima facie
showing of discrimination, the burden shifts to the defen-
4 No. 03-4061
dant to articulate a legitimate, nondiscriminatory reason
for its decision. Salvadori, 293 F.3d at 996. If the employer
does so, it rebuts the presumption of discrimination, and
the burden shifts back to the employee to show that the
proffered reason was pretextual. Id. Despite this burden-
shifting approach, the ultimate burden of proof to establish
discrimination remains at all times with the plaintiff. Id.Here, the judge’s entry of summary judgment was proper.
In support of its motion, Aurora produced evidence that it
failed to promote Butts because she had less experience and
familiarity with its computer systems than the candidates
who were promoted. Because this was a legitimate, nondis-
criminatory reason, it was incumbent on Butts to submit
evidence that it was contrived; a mask for discrimination.
But Butts submitted nothing, which was fatal to her suit
and this appeal. Indeed, the judge could have entered
summary judgment on the ground that Butts failed to es-
tablish the fourth element of a prima facie case, i.e., that
similarly situated white candidates were treated more fa-
vorably. It was undisputed that all of the candidates had
more relevant experience than Butts.
Butts contends that Aurora did not submit any documen-
tary evidence to corroborate the self-serving affidavits of
Butschli and Tuszkiewicz, both of whom attested that they
did not promote Butts because she had less computer exper-
ience. It is true that self-serving statements in affidavits
without factual support in the record carry no weight on
summary judgment. Buie v. Quad/Graphics, Inc., 366 F.3d
496, 504 (7th Cir. 2004) (internal quotation omitted). But
here, the supervisors’ conclusory statement that Butts was
less qualified had additional support in the record. Butts
acknowledged in her deposition that four of the six candi-
dates who beat her out had more experience and that their
promotions were good decisions. And Butschli and
Tuszkiewicz described in great detail the specific work
experience of the other two candidates, establishing that they
No. 03-4061 5
were more qualified than Butts. See id. (court may consider
self-serving statements in affidavits if they are based on
personal knowledge and set forth specific facts); Payne v.
Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (same). Thus,
contrary to Butts’ argument, additional documentary evi-
dence was not required.
Butts also assails the judge’s refusal to allow her to amend
her complaint under Fed. R. Civ. P. 15. Although leave to file
an amended complaint should be granted liberally, a request
to amend may be denied on several grounds, including undue
delay. E.g., Guise v. BWM Mortgage, L.L.C., 377 F.3d 795, 801
(7th Cir. 2004). We review a denial of a motion to amend
only for an abuse of discretion. E.g., Dubicz v. Commonwealth
Edison Co., 377 F.3d 787, 792 (7th Cir. 2004).
We cannot conclude, under the circumstances here, that
Judge Goodstein abused his discretion. Butts complains
that it was unreasonable for the judge to deny her leave to
amend shortly after helping her secure counsel. We are
sympathetic to her position. She argues that she originally
believed her abandoned claims were untimely but, after get-
ting counsel, came to a different view and reasonably asked
the judge for another shot. Why not give her the opportu-
nity to develop these claims with the assistance of counsel?
But though we may have ruled differently, that does not
mean that the judge’s decision was an abuse of discretion,
which occurs only if no reasonable person could agree with
it. E.g., Cleveland v. Porca Co., 38 F.3d 289, 297 (7th Cir.
1994). The fact that the judge granted Butts’ request for
counsel did not give her license to amend the substance of
her lawsuit, especially, as here, so late in the game. And
Butts fails to demonstrate that her requested amendments
had any real merit. Instead, she states in conclusory fashion
that “the legal merits of the Amendment were clear.” But
how so? Butts does not inform. As a result, she has failed to
adequately explain why no reasonable person could agree
6 No. 03-4061
with Judge Goodstein’s conclusion that the case should not
return to the claim status it enjoyed when her complaint
was originally filed.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-5-04