Jordan, Pamela v. Chertoff, Michael

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 7, 2004
Decided June 8, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2094
PAMELA J. JORDAN,
Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. 02 0236
1
MICHAEL CHERTOFF, SECRETARY,
U.S. DEPARTMENT OF HOMELAND Richard L. Young,
SECURITY, Judge.
Defendant-Appellee.
ORDER
Pamela Jordan contends that her former employer, the United States
Customs Service (“Customs”),2 discriminated against her on the basis of her race
and that it retaliated against her for complaining about alleged discrimination, in
1
Pursuant to Fed. R. App. P. 43(c)(2), we have substituted Michael Chertoff for Tom Ridge
as the named respondent.
2
On March 1, 2003, the United States Customs Service became part of the Department of
Homeland Security. See Public Law 107-296. Prior to that date, the United States
Customs Service was an agency within the Department of the Treasury.
No. 04-2094 Page 2
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In
particular, Jordan’s complaint alleges that Customs acted unlawfully when: (1) she
did not receive a lateral reassignment in September 1996, and (2) she was not
selected for a promotion to an operating accountant position in November 1996.
The district court granted summary judgment in favor of Customs. We agree that
even if Jordan had established a prima facie case of discrimination or retaliation on
either claim, she has not presented sufficient evidence to create a genuine issue of
fact as to whether Customs’s reasons for not reassigning her and not promoting her
were pretextual. Therefore, as we explain more fully below, we affirm.
I. Background
In 1988, Customs hired Pamela Jordan, an African American woman, as an
accounting technician in its Accounting Services Division. Jordan possessed a
bachelor of science degree in accounting from Indiana State University but had not
passed the Certified Public Accountant examination.
The Accounting Services Division contains four groups, including the
Accounts Payable Group and Financial Reporting and Analysis Group. Jordan
worked in several units within the Commercial Accounts division of the Accounts
Payable Group throughout her career, including the Imprest Fund Unit and its
Internal Recurring Obligation (“IRO”) unit. The Forfeiture Fund Team (“FFT”) is
another unit within the Accounting Services Division. The FFT falls under the
Financial Reporting and Analysis Group.
From her assignment on the IRO, Customs “detailed” Jordan to the FFT in
February 1995. Her original 120 day detail to the FFT was extended for an
additional 120 days, and she then returned to her assignment on the IRO in
October 1995. After her return to the IRO, she requested permanent reassignment
to the FFT, but she was not reassigned at that time. In January 1996, Jordan filed
a complaint with the Equal Employment Opportunity (“EEO”) Division, a part of
the Department of the Treasury, alleging that Customs had discriminated against
her on the basis of her race and retaliated against her for filing previous EEO
complaints.3
In September 1996, Customs received authorization to hire seven new
accounting technicians, one of whom would work on the FFT. Tom Diaforli, director
of the Accounting Services Division, asked group leaders to consider where to
assign the new technicians and considered reassignment requests from current
3
Jordan had previously filed EEO complaints in 1991, 1994, and 1995. She has also
unsuccessfully filed suit against Customs on several previous occasions. See Jordan v.
Summers, 205 F.3d 337 (7th Cir. 2000); Jordan v. Summers, Cause No. IP 98-1092-C-H/G
(S.D. Ind.), Entry on Defendant’s Motion for Summary Judgment Mar. 22, 2000; Jordan v.
O’Neill, Nos. 01-1768, 01-2266, 2002 WL 193784 (7th Cir. Feb. 2, 2002) (unpublished).
No. 04-2094 Page 3
accounting technicians, including Jordan. John Accetturo, the Accounts Payable
group leader, told Diaforli that the group could not afford to replace Jordan with a
new accounting technician at that time. The IRO unit was entering its busiest time
of the year and was involved in time-consuming duties including closing out the
government’s fiscal year, which ended September 30, and setting up the new fiscal
year. In addition, the group had only three full-time accounting technicians,
including Jordan, who were already working overtime, while two years earlier the
group had five experienced accounting technicians.
Diaforli decided that because of the workload in the IRO unit, Jordan could
not be reassigned at that time. No accounting technician in Commercial Accounts
was detailed or reassigned between August and December of 1996. On September
26, 1996, Diaforli assigned Michele Perkins, a white clerk without an accounting
degree who had been recommended for promotion to accounting technician, to fill
the vacant technician position in the FFT. Jordan filed another EEO complaint in
December 1996.
Earlier that year, Customs posted an announcement seeking applications for
up to eleven operating accountant positions in the Indianapolis Accounting Services
Division. Individuals could be hired under any of the General Schedule grades
advertised, GS-5, GS-7, GS-9, GS-11, or GS-12, and no fixed number of positions
was allocated to any grade. As bargaining unit positions, the actions taken to fill
the positions were subject to the procedures of a 1991 Merit Promotion Plan
between the National Treasury Employees Union and the Customs Service (the
“Plan”). Jordan, in GS-7 at the time, applied for a GS-7 or GS-9 position but was
not selected.
In May 1998, Jordan was permanently assigned to the FFT, where she
worked until her resignation in 2001. She then filed this suit, alleging that
Customs’s decisions not to reassign her to the FFT in September 1996 and failure to
promote her to an operating accountant position were on account of her race and in
retaliation for filing prior EEO complaints. The district court granted Customs’s
motion for summary judgment.
II. Analysis
Summary judgment is appropriate when, reviewing all evidence in the light
most favorable to the nonmoving party, “there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-55 (1986); Germano v.
Winnebago County, Ill., 403 F.3d 926, 927 (7th Cir. 2005). We review a district
court’s grant of summary judgment de novo. Germano, 403 F.3d at 927.
No. 04-2094 Page 4
A. Summary judgment was proper on Jordan’s non-reassignment to the
Forfeiture Fund Team claim.
Jordan first contends that Customs’s decision not to assign her to the FFT in
September 1996 was based on her race and in retaliation for filing previous EEO
complaints. A plaintiff in a Title VII case may proceed under either a direct or
indirect method of proof. Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th
Cir. 2004). Because Jordan presented no direct evidence of discrimination, she
proceeded under the indirect method of proof enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Under this indirect method, a plaintiff
must first establish a prima facie case of discrimination. Butts, 387 F.3d at 924. If
she does so, the burden then shifts to the defendant to articulate a legitimate, non-
discriminatory reason for its action. Id. If the defendant satisfies this burden, the
burden of production shifts back to the plaintiff to present sufficient evidence for a
trier of fact to find that the articulated reasons were a pretext for discrimination.
Id. The ultimate burden of persuasion remains at all times with the plaintiff. Id.
A prima facie case of racial discrimination requires a plaintiff to show: (1)
she is a member of a protected class, (2) she performed her job satisfactorily, (3) she
suffered an adverse employment action, and (4) the defendant treated similarly
situated employees outside her class more favorably. See, e.g., Butts, 387 F.3d at
924; Grayson v. O’Neill, 308 F.3d 808, 817-18 (7th Cir. 2002). To prove a prima
facie case of retaliation, a plaintiff must show: (1) she engaged in a statutorily
protected activity; (2) she was performing her job satisfactorily at the time of the
adverse action; (3) she suffered an adverse action from the employer; and (4)
similarly situated employees who did not engage in statutorily protected activity
were treated more favorably than the plaintiff. Williams v. Waste Mgmt. of Ill., 361
F.3d 1021, 1031 (7th Cir. 2004); Stone v. City of Indianapolis, 281 F.3d 640,
643 (7th Cir. 2002). Customs contends Jordan summary judgment was proper
because Jordan did not suffer an adverse employment action.4
This court has generally recognized three types of actions as “adverse
employment actions”: (1) instances where the employee’s compensation or other
financial terms of employment are diminished; (2) cases where a nominally lateral
4
“We observed in Herrnreiter [], decided after Stone [], that retaliation claims need not
always involve an adverse action directly related to employment, just an adverse action by
an employer of some kind.” Williams v. Waste Mgmt. of Illinois, 361 F.3d 1021, 1031 n.4
(7th Cir. 2004) (citing Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 745 (7th Cir.
2002)). Because Jordan only alleged adverse action related to her employment in support
of her retaliation claim, we will evaluate her evidence in terms of whether it amounts to an
adverse employment action. See id.
No. 04-2094 Page 5
transfer with no change in financial terms significantly reduces an employee’s
career prospects by preventing her from using the skills in which he is trained and
experienced; and (3) instances where conditions are changed in a negative way.
Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 744-45 (7th Cir. 2002). Of
course, “not everything that makes an employee unhappy” constitutes an adverse
employment action. Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996).
Here, Jordan contends that Customs’s decision not to reassign her to the FFT
was an adverse employment action. Although the record reflects that Jordan
preferred her work as an accounting technician on the FFT over her work as an
accounting technician in the IRO, it is undisputed that Jordan’s salary, grade,
benefits and title were the same in both positions. In addition, the job descriptions
for each position are identical. An employee’s subjective preference for one position
over another is not sufficient to show an adverse employment action. Herrnreiter,
315 F.3d at 745.
Jordan contends, however, that Customs’s refusal to reassign her to the FFT
in September 1996 denied her experience that would have been helpful in her
career advancement. She also argues that non-reassignment negatively affected
her chances for promotion because she was denied the opportunity for cross-
training.
We are not unsympathetic to Jordan’s argument, and we have recognized
before that “[d]epriving someone of the building blocks of promotion . . . is just as
serious as depriving her of the job itself.” Bryson v. Chicago State Univ., 96 F.3d
912, 917 (7th Cir. 1996). In support of her assertion that reassignment to the FFT
would have helped her promotion chances, however, Jordan offers only speculation,
which is insufficient to survive summary judgment. O’Neal v. City of Chicago, 392
F.3d 909, 912 (7th Cir. 2004). None of the documents to which Jordan points us
contains any objective evidence that accounting technicians on the FFT are more
likely to be promoted than accounting technicians in the IRO. In addition, although
she points to a candidate’s “experience” as a factor in the decision to select
operating accountants (the position to which she applied in March 1996), she points
us to no objective evidence that experience as an accounting technician in the FFT
would have been more valuable for career advancement than experience as an
accounting technician in the IRO. See O'Neal, 392 F.3d at 912-13 (transfer from
administrative sergeant to beat sergeant was not adverse employment action
without objective evidence that promotions were more likely from the position of
administrative sergeant); McKenzie v. Milwaukee County, 381 F.3d 619, 625-26
(7th Cir. 2004) (transfer did not constitute an actionable adverse employment
action because two positions were deemed materially equivalent).
The documents to which Jordan points us are also insufficient to create a
genuine issue of material fact as to whether Customs denied her cross-training that
would have helped her career advancement. Her own conjecture (see Appt. App.
No. 04-2094 Page 6
30, 35, 36) is not sufficient. See Traylor v. Brown, 295 F.3d 783, 789 (7th Cir.
2002). Nor, for example, is a handwritten note allegedly from a supervisor to
Jordan in 1991 that states, “From personal experience I realize that cross-training
is professionally career enhancing.” After all, Jordan did receive cross-training.
That is, even if cross-training was important for career advancement at Customs, as
Jordan maintains, the fact remains that she served an extended eight month detail
on the FFT. Jordan points us to no evidence that additional time on the FFT–a
place where she had already worked–would have made her a better candidate for a
promotion than additional experience in the IRO.
Instead, Jordan is similar to the plaintiff in Traylor who “suffered no loss in
title or job responsibility, and has presented no evidence, other than her own
conjecture, to establish that she suffered a deprivation of the ‘building blocks’ for
promotion.” See Traylor, 295 F.3d at 789. Like the plaintiff in Traylor and unlike
the plaintiff in Bryson, “she provided no evidence that the sort of responsibilities
she wanted to perform were important to achieve a higher position for which she
was otherwise qualified.” See id. (citing Bryson, 96 F.3d at 916).
In any event, we also agree with the district court that even if Jordan had
established a prima facie case of discrimination on the basis of race or retaliation,
Jordan has not presented evidence sufficient for a trier of fact to find that the
reason Customs provided for not reassigning her was pretextual. In order to show
pretext, Jordan had to establish that Customs’s proffered reason for not reassigning
her to the FFT in September 1996 was false, contrived to mask unlawful
discrimination. See Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir.
2004). Customs asserts that it could not assign Jordan to the FFT in September
1996 because the IRO’s workload did not allow it to reassign anyone at that time.
After Jordan’s return to the IRO in the fall of 1995, an accounting technician
position did not become open in the FFT until September 1996. September 30
marked the end of the government’s fiscal year, and the IRO was working to pay as
many invoices as possible by that date. Employees in the IRO were already
working overtime, and the IRO was also low on accounting technicians. In
addition, it is undisputed that no one in Commercial Accounts was detailed or
reassigned between August and December of 1996.
Jordan has not created a genuine issue of fact as to whether this reason lacks
a factual basis. For example, she argues that the district court failed to consider an
e-mail allegedly sent from Tom Smith, a supervisor in the FFT. The e-mail
contained an article entitled “The Costs of Complaints,” about the costs of federal
discrimination complaints, along with the comment, “Interesting reading.”
However, this message was sent in 1999, two and a half years after the incident in
question, and Jordan points to no evidence indicating that Smith had any role in
Diaforli’s decision not to reassign Jordan to the FFT in 1996. Likewise, a lead
accounting technician’s statement that he did not know of any person other than
No. 04-2094 Page 7
Jordan who returned to work in the IRO after a detail out of the IRO does not
create an issue of fact as to whether Customs’s proffered reason for not reassigning
her in September 1996 was pretextual.5
Therefore, summary judgment was proper on Jordan’s claim that the decision
not to reassign her to the FFT in September 1996 was unlawful.
B. Summary judgment was proper on Jordan’s failure to promote claim.
Jordan also contends that Customs’s decision not to promote her to an
operating accountant position in November 1996 was on account of her race and in
retaliation for filing EEO complaints. The district court granted summary
judgment in Customs’s favor on these claims as well.
To establish a prima facie case for the failure to promote on account of race, a
plaintiff must show: (1) she is a member of a protected class, (2) she was qualified
for the position she sought, (3) she was rejected for the position, and (4) the
employee selected was not a member of the protected group and was not better
qualified than the plaintiff. Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.
2003). As we set forth earlier, a prima facie case of retaliation requires a plaintiff
to show: (1) she engaged in a statutorily protected activity; (2) she was performing
her job satisfactorily at the time of the adverse employment action; (3) she suffered
an adverse action from the employer; and (4) similarly situated employees who did
not engage in statutorily protected activity were treated more favorably than the
plaintiff. Williams, 361 F.3d at 1031; Stone, 281 F.3d at 643. In both instances, if
the plaintiff satisfies her prima facie case, the burden then shifts to the defendant
to articulate a legitimate, non-discriminatory reason for its action. Butts, 387 F.3d
at 924; Hudson v. Chicago Transit Auth., 375 F.3d 552, 559-60 (7th Cir. 2004). If
the defendant satisfies this burden, the burden of production shifts back to the
plaintiff to present sufficient evidence for a trier of fact to find that the articulated
reasons were a pretext for discrimination. Butts, 387 F.3d at 924; Hudson, 375
F.3d at 559-60.
Customs first contends that Jordan’s claim fails because she cannot show
that she was equally or better qualified for the position than the employees
selected. Jordan’s failure-to-promote claim arises out of a March 1996 posting for
up to eleven accountant positions in the Indianapolis Accounting Services Division
office. The announcement sought applicants for positions at GS levels 5, 7, 9, 11,
and 12. As required by the Plan, Jordan submitted an application and statement of
her “Knowledge, Skills, and Abilities.” In accordance with the Plan, these written
applications were then submitted to an evaluation panel. In this case, the panel
5
We note also that Jordan’s claim in this case alleges as unlawful Customs’s failure to
reassign her to the FFT in September 1996, not its termination of her FFT detail in
November 1995.
No. 04-2094 Page 8
consisted of two African American and one Caucasian accountants, all based in
Washington, D.C. It is undisputed that during their review of the applications, the
panel members had no knowledge of Jordan’s race and did not know that she had
submitted prior EEO complaints.
The score from the three-member panel determined each candidate’s
placement on a “best qualified register.” Jordan’s score from the three-member
panel placed her thirteenth out of sixteen candidates on the “best qualified” register
for the GS 7/9 position. According to the Plan, the following rule, known as the
“rule of five,” applied to eligibility for selection under the “best qualified” register:
if the selecting official is selecting for more than one position, selection
for the first vacancy must be made from among the top five candidates
referred. Selection for the second vacancy must be from among the top
six candidates referred, etc.
At any time, however, the Plan also provided that a selection could be made
from an “alternate staffing method.” That is, any candidate could be selected from
an alternate staffing register without regard to the Plan rules that apply to the best
qualified lists because alternate staffing candidates already had experience at the
grade level on the register.
The Office of Human Resources sent alternate staffing registers and “best
qualified” registers to Diaforli. Diaforli then selected three persons to serve on an
interview panel, instructed them to interview the candidates and to recommend
selections to him, and asked the panel to recommend as many experienced GS 11 or
12 candidates as possible. The panel then interviewed candidates using
standardized questions.
The first five candidates selected for positions were taken from the GS 11/12
alternate staffing register, as allowed by the Plan. These candidates, all external
applicants, were already GS 11/12 accountants. Jordan does not contend that she
was more qualified than the five candidates selected from the GS 11/12 alternate
staffing register, and she did not possess the years of accounting experience and
CPA or MBA that these applicants possessed.
As a result of making these five selections from the alternate staffing
register, only six positions remained. The Plan mandated that any selections from
the best qualified registers use the “rule of five.” Because of the “rule of five,”
however, Jordan could not be selected, as she was rated thirteenth out of sixteen
applicants on the GS 7/9 best qualified register. Nine positions would have to have
been filled from the GS 7/9 register before Jordan could have been selected, but
there were only six spots left.
Jordan contends she was better qualified than some persons selected from
the GS 7/9 register, even though the ratings panel scored her below them, because
she had a degree in accounting. She also argues that the crediting plan “misstated
No. 04-2094 Page 9
the vacancy announcement” because it “emphasized experience over education.”
(Appt. Br. at 39.) The position announcement did not emphasize education,
however, as its text stated that the position required either an accounting degree or
its equivalent. Whether applicants met this minimal qualification was determined
before the application packets were presented to the ratings panel, and the ratings
panel, looking at the comprehensive application, scored her below the selected
applicants.
Unfortunately for Jordan, even if Jordan had established a prima facie case
of discrimination on account of race or retaliation,6 she has not set forth sufficient
evidence that Customs’s reasons for selecting the eleven candidates was pretextual.
As we discussed, Customs first selected five experienced accountants. It then
selected applicants from a “best qualified register,” persons who were placed on the
register by a panel that did not know Jordan’s race or that she had filed prior EEO
complaints. Jordan’s score from the blind ratings panel meant that she could not be
selected after Customs selected the five experience accountants. Although Jordan
contends that “Customs did not follow its normal procedure of promoting from
within, but rather, requested applications from expensive accountants from outside
who had CPA’s or MBA’s or years of accounting experience,” she does not point us to
any evidence that Customs’s normal procedure was to promote from within. In fact,
Jordan herself stated that Customs had hired from outside the agency in the past.
(R. 56, p. 134.) Her other arguments are likewise insufficient to create an issue of
fact for trial.
III. Conclusion
The district court’s grant of summary judgment in favor of the defendant is
AFFIRMED.
6
The district court found that Jordan failed to establish a prima facie case of retaliation
because she failed to present the name of any person who did not participate in the EEO
process and was selected for a position.