Armstrong, Gary v. City of Milwaukee

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2006
Decided November 6, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4743
GARY ARMSTRONG, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 03 C 581
CITY OF MILWAUKEE, Rudolph T. Randa,
Defendant-Appellee. Chief Judge.
ORDER
Gary Armstrong sued his employer, the City of Milwaukee (“the City”), under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that he
was denied two promotions because he is black. The district court granted
summary judgment for the City. We affirm.
I.
This court reviews the facts in a light most favorable to Armstrong. See
Smith v. Potter, 445 F.3d 1000, 1006 (7th Cir. 2006). The City’s Department of
Neighborhood Services (“the Department”) oversees, among other things, citywide
zoning, code enforcement and compliance, and residential and commercial building
construction and condemnation. Armstrong began working in the Department (or,
at least, its previous incarnation) in 1977. He held several different positions
within the Department, the most recent being “Special Enforcement Inspector.” As
No. 05-4743 Page 2
pertinent to this appeal, beginning January 2001 Armstrong applied for two
promotions within the Department: “Program Assistant Supervisor-Commercial
Code Enforcement” and “Building Construction Inspection Assistant Supervisor for
Condemnation Services.”
A. “Program Assistant Supervisor-Commercial Code Enforcement”
Promotion
In January 2001, Armstrong applied for a promotion to “Program Assistant
Supervisor-Commercial Code Enforcement,” a managerial position in the
Department’s Commercial Inspection Division. He was invited to interview for the
position after it was determined that he possessed the requisite qualifications,
though seniority within the Department was not considered. Five applicants
including Armstrong were invited to interview; he was the only black male.
At the time of the interview, Armstrong had been employed with the
Department for 23 years, and had been a Special Enforcement Inspector for ten.
According to Armstrong, some of his “achievements” as Special Enforcement
Inspector were: “[a]ssist[ing] with management and supervisory” determinations;
“[r]epresent[ing] the [Department] at community meetings and other public forums
to discuss enforcement problems [and] strategies”; “[r]eview[ing] inspection
paperwork” and “[m]onitor[ing] inspectors’ workloads”; and “mentor[ing], train[ing],
evaluat[ing], over[seeing], and monitor[ing] the performance of specific Code
Enforcement Inspectors and Interns.” He has a Bachelor of Arts in finance and is
state-certified to inspect commercial and residential buildings to ensure compliance
with the uniform dwelling and fire codes. He also served as a union steward and
was later elected union president.
The interview was with an “advisory panel” consisting of four individuals
(two black and two white), including the Supervisor of the Commercial Code
Enforcement Section, Tracy Williams. The panel was charged with recommending
to Williams which applicant should receive the promotion, but Williams herself had
the last word as to that choice. The panel asked each applicant the same ten
questions, and during the interview the panel members took notes on the
applicants’ answers (some of the panel members gave the applicants numerical
scores in what appears to be attempts to rate the answers). After the interviews
concluded, the panel members met to discuss each applicant’s qualifications and
interview performance. The panel ultimately recommended that Karen Jacobs, a
white female, receive the promotion. Based on this recommendation, Williams
interviewed Jacobs a second time, and later recommended to her supervisor that
Jacobs be promoted.
No. 05-4743 Page 3
The panel believed that Jacobs gave a superior interview. Although one
panel member’s notes were critical of some of Jacobs’s answers, the panel as a
whole believed that she had great experience and interviewed well. Namely, Jacobs
was an inspector with the department for ten years, and during that time she
received a “City Innovation Award” for her work developing a centralized complaint
system for mentally ill tenants and homeowners. The panel opined that during her
interview she “gave relevant, concise and thoughtful answers,” outlined her
experience, and set forth her leadership roles in several special projects within the
department.
In contrast, the panel believed that Armstrong interviewed poorly. Although
some panel members’ notes were somewhat positive, the panel members agreed
that he was “passive in his demeanor, failed to make eye contact, and provided
short answers.” In response to questions, he gave only general, unresponsive
answers, and when he was invited to draw attention to any of his achievements, he
declined to elaborate and discuss them. Moreover, when the panel asked
Armstrong to “elaborate on his unresponsive answers, [he] declined.” One panel
member initially believed that Armstrong was the strongest candidate, but then
even he eventually agreed that Jacobs gave the best interview.
B. “Building Construction Inspection Assistant Supervisor for
Condemnation Services” Promotion
In April 2003, Armstrong applied for a promotion to “Building Construction
Inspection Assistant Supervisor for Condemnation Services,” another managerial
position in the Commercial Inspection Division. As with the “Program Assistant
Supervisor-Commercial Code Enforcement” position, this promotion did not
consider the applicants’ seniority. Armstrong and six other applicants possessing
the requisite qualifications were invited to interview for the position; again, he was
the only black male applicant. The interview was with a panel of three individuals
(two white and one black, and again including Williams), but this time the panel
was charged with making the ultimate recommendation for the promotion. During
the interview each applicant was asked the same ten questions, and, unlike the
“advisory panel” that interviewed Armstrong for the “Program Assistant
Supervisor-Commercial Code Enforcement” position, each panelist ranked the
applicants according to a numerical score.
After the interviews concluded, the panel unanimously recommended Chris
Kraco, a white male, for the promotion; two panel members ranked Kraco as the
highest scoring applicant, and the third member ranked him third highest. The
panel believed that Kraco offered insightful responses during his interview, was
engaged and talkative, and made eye contact. The panel also believed that his 15
years of experience in construction and two years of experience as an inspector in
No. 05-4743 Page 4
the Department’s Condemnation Section served him well because the position
required a familiarity with the demolition bidding process, building construction,
and condemnation procedures.
The panel likewise believed that Armstrong interviewed poorly. Each
panelist placed Armstrong in his or her bottom three applicants, and Williams
ranked him as the lowest. According to the panelists, Armstrong’s answers were
short (no more than one or two sentences) and unresponsive. Moreover, the panel
members thought that his demeanor was passive, and noted that he failed to make
eye contact during the interview. After this interview, one of the panel members
approached Armstrong and offered to personally help him improve his interviewing
techniques; Armstrong declined the assistance.
C. Armstrong’s Complaint and the District Court’s Grant of Summary
Judgment
Armstrong filed his civil rights claim in June 2003, claiming, among other
things, that he was denied the two promotions because of his race.1 After the close
of discovery, the City moved for summary judgment, which the district court
granted in November 2005. In a thorough 53-page order, the district court
determined, among other things, that although Armstrong successfully established
the first three elements of a prima facie case of discrimination under McDonnell-
Douglas v. Hill, 411 U.S. 792 (1973), he failed to establish the fourth element—that
either Jacobs or Kraco were similarly or less qualified than he. The court went on
to state that, even if Armstrong could establish a prima facie case, the City
articulated a legitimate nondiscriminatory reason for promoting Jacobs and Kraco
1
In all, Armstrong alleged that he had been passed over for promotions
to eight different positions because of his race and sex, and was subjected to acts of
retaliation and a hostile work environment in response to bringing suit. The
district court dismissed as untimely Armstrong’s claims regarding promotions to
four positions. The court then dismissed the claims regarding the promotions to the
remaining four positions based on Armstrong’s failure to establish a prima facie
case of race or sex discrimination. It likewise dismissed Armstrong’s retaliation
claims because he failed to make a prima facie case. Finally, the court dismissed
Armstrong’s hostile work environment claim for failure to state a claim. Because
Armstrong challenges only the district court’s grant of summary judgment
regarding the promotions to “Program Assistant Supervisor-Commercial Code
Enforcement” and “Building Construction Inspection Assistant Supervisor,” he thus
has abandoned any argument concerning the other six promotions, his retaliation
claims, and his hostile work environment claim. See Blise v. Antaramian, 409 F.3d
861, 866 n.3 (7th Cir. 2005).
No. 05-4743 Page 5
by deeming them the best applicants according to a variety of factors, and that
Armstrong failed to demonstrate that this reason was pretext.
II.
On appeal Armstrong argues that the district court erred by concluding that
he failed to establish the fourth element of a prima facie case of racial
discrimination under McDonnell-Douglas. Specifically, he asserts that the strength
of the “objective” evidence (that is, presumably, his educational and professional
history) creates a genuine dispute of material fact whether he was “at least” as
qualified as either Jacobs and Kraco, despite the panel members’ “subjective”
reasons for Jacobs’s or Kraco’s promotion (namely, that they gave better
interviews). He also contends that the “subjective” reasons for promoting Jacobs
and Kraco are (1) contradicted by the one panel member’s notes that were critical of
Jacobs, and (2) unreliable because they were offered only in affidavits prepared
years after the interviews took place.
We review a district court’s grant of summary judgment de novo, see Smith,
445 F.3d at 1006, and will affirm the judgment if the record establishes 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,” see Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The non-moving party—that is, Armstrong—must rely on
more than mere assertions, and must instead present specific facts to establish a
genuine issue of material fact. See Celotex, 477 U.S. at 322.
As pertinent here, to establish the fourth element of a prima facie case of
racial discrimination, a plaintiff must show that an individual outside of his
protected class was promoted who was similarly or less qualified than the plaintiff.
See Jordan v. City of Gary, 396 F.3d 825, 833 (7th Cir. 2005); Johnson v.
Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001). But Armstrong fails to show
that there is a genuine dispute over whether Jacobs or Kraco were similarly or less
qualified than he. He asserts only that his “objective” educational and professional
accomplishments trump the “entirely subjective” reasons for promoting Jacobs and
Kraco, thus creating an issue of fact whether he was more qualified for the
promotion. He does not explain how his “objective” accomplishments exceed those
of Jacobs and Kraco; his brief merely recites without elaboration what he deems to
be his professional accomplishments over the past ten years, and counsel failed to
expand upon this point at oral argument. Moreover, Armstrong’s attack on the
“subjective” reasons for promoting Jacobs and Kraco is meritless; we, along with
other courts of appeals, have squarely rejected similar attacks on employers’ use of
“subjective” criteria, and stated that nothing in Title VII prohibits employers from
relying on such criteria when promoting individuals. See Blise, 409 F.3d at 868;
Millbrook v. IBP, Inc., 280 F.3d 1169, 1176 (7th Cir. 2002) (“[A] court’s ‘role is to
No. 05-4743 Page 6
prevent unlawful hiring practices, not to act as a “super personnel department” that
second-guesses employers’ business judgments.’” (quoting Simms v. Oklahoma ex
rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th
Cir. 1999)).
Reduced to its essence, Armstrong’s argument that he was “at least” as
qualified for the promotions as Jacobs and Kraco relies on nothing more than his
own estimation of his qualifications. Such self-serving assertions carry no
evidentiary value when attempting to prove racial discrimination through the
McDonnell-Douglas analysis. See Olsen v. Marshall & Ilsley Corp., 267 F.3d 597,
602 (7th Cir. 2001). Nor do they sufficiently raise a genuine issue of material fact to
defeat summary judgment. See Celotex, 477 U.S. at 322; Hall v. Bodine Elec. Co.,
276 F.3d 345, 354 (7th Cir. 2002).
III.
Because Armstrong failed to establish a prima facie case of racial
discrimination, we need not address his argument that the City’s reasons for
promoting Jacobs and Kraco are pretext for radical discrimination. See Peele v.
Country Mut. Ins. Co., 288 F.3d 319, 327 (7th Cir. 2002). We accordingly AFFIRM
the district court’s grant of summary judgment.