DISCUSSION

A plaintiff bringing a Title VII claim may proceed under the direct method of
proof or the indirect burden-shifitng method. Grayson v. City of Chicago, 317 F.3d
745, 748 (7" Cir. 2003). To establish aprima facie case under the indirect method
in the context of a failure to promote a plaintiff must show that: “1) [s]he belongs to
a protected class, 2) [s]he applied for and was qualified for the position sought, 3)
{s]he was rejected for that position[,] and 4) the employer granted the promotion to
someone outside the protected group who was not better qualified than the plaintiff.”
Id. If the plaintiff establishes a prima facie case the burden shifts to the employer to
provide a legitimate, non-discriminatory reason for deciding not to promote the
plaintiff. Johnson v. Nordstrom, 260 F.3d 727, 731-32 (7 Cir. 2001).

Defendant concedes for the sake of argument that Jones met the burden of
establishing a prima facie case and Defendant proceeded directly to the pretext
issue. Jones is a member of a protected class. There is no indication that she was
not qualified for the position in question. She was rejected for the position. We
cannot conclude as a matter of law that Wolf was better qualified than Jones,
particularly in the absence of any argument from Defendant on the issue. However,

Defendant has provided a legitimate non-discriminatory reason for choosing Wolf


recommendations addressed. In addition, the instant case involves the selection
process for promotion of applicants and Jones does not claim in her statement of
additional facts that the panel member has never recommended an African-American
employee for a position that would be a promotion. A final inconsistency with
Jones’ attack on the panel member is that Jones admits that the panel member is a
woman, (SAF 5), which undermines Jones’ contention that she was discriminated
against because of her gender. Completely absent in this action is evidence that
would allow a reasonable trier of fact to conclude that the panel did not chose Jones
because of her race or her gender. Jones’ arguments can be summarized into two
basic contentions. She claims that she was the better candidate for the job and she
claims that the selection process was not fair in her case. We need not resolve either
issue because neither of those facts are sufficient to establish a violation of Title VII
for race or gender discrimination. We are not here to decide whether an employer
chose the best applicant for a position. We are a court of law and are only able to
remedy unfairness in employment decisions when they result in civil rights
violations. See Wells v. Unisource Worldwide, Inc, 289 F.3d 1001, 1007 (7" Cir.
2002)(stating that the “courts do not sit as super personnel departments to second

guess an employer’s facially legitimate business decisions.”).


applied for the position, he was a GS-12 and had performed many of the same duties
of the position.” (RSF 12, 13). Jones attempts in a variety of ways to show that the
selection process was flawed and that Defendant ultimately made the wrong decision
in choosing Wolf because Jones was a better choice and was more qualified.
However, such an argument is also inappropriate in the context of a pretext
determination because the proper inquiry for the pretext analysis is whether the
employer is honest in giving its reason for the employment action. Stewart v.
Henderson, 207 F.3d 374, 378 (7" Cir. 2000). An employer’s given reason is not a
pretext even if the employer’s decision was not “wise, or well-considered.” Id.
Jones’ arguments indicating that the end result of the selection process was not the
selection of the best candidate do not show pretext. See Alexander v. Wisconsin
Dept. of Health and Family Servs. 263 F.3d 673, 683 (7" Cir. 2001)(stating that a
court “may not punish an employer for choices that constitute business decisions

alone, no matter how unwise or mistaken they may seem to [the court.]”).

I. Alleged Problems With Selection Process

Jones also claims that the members on the selection process were biased
against her. Jones contends that Defendants gave the other applicants for the desired

position the interview questions ahead of time, but did not give Jones the questions.


instead of Jones. Defendant contends that the decision was made by a panel of
managers that followed an established selection process for hiring. The burden thus
shifts to Jones to show that the given reason by Defendant was merely a pretext to

allow Defendant to discriminate against Jones because of her race and gender.

I. Whether Pretext is Shown Because Jones Was Better Qualified

Jones first argues that she is better qualified for the desired position than Wolf
which shows that Defendant’s reason is a pretext. Jones claims that she is a better
candidate because Wolf has a speech impediment and hearing difficulties. However,
Jones fails to show that Wolf was not capable of performing the requirements of the
job. Jones concludes that simply because Wolf has physical impairments that he
does not have “good communication skills.” (A. Mot. 6). However, such an
assumption is exactly the type of discriminatory stereotyping of a person that Jones
herself complains about. Jones makes much of her degrees, but she admits that Wolf
received a Bachelor of Science degree from Loyola University. (RSF 9). Jones
also makes much of her experience, but Wolf had worked for HCFA in Chicago for
over 17 years whereas Jones had worked for HCFA for 14 years. (R SF 10, 14).
Jones also admits pursuant to Local Rule 56.1 that Wolf worked in the same office

where the position was filled prior to his promotion and that “[a]t the time Wolf


conclude that the panel’s decision was made because of a racial or gender animus.
See Flores v. Preferred Technical Group, 182 F.3d 512, 51415 (7" Cir.
1999)(stating that a plaintiff must show that the reason is a “mere pretext offered to
mask the employer’s true discriminatory animus.”).

In the alterative, to show pretext Jones must show that her employer’s
explanation is not credible. Logan v. Catipillar, Inc., 246 F.3d 912, 920 (7* Cir.
2001). Jones likewise fails in her attempts to poke holes in the selection process by
her employer. The system is designed to fairly choose the best qualified applicant
and based upon the evidence in this case Defendant’s explanation is entirely credible
and no reasonable trier of fact could conclude otherwise. Jones merely contends that
in her case the system did not work and resorts to pointing out meaningless aspects
of the system such as the fact that panel members do not keep the sheets with their
individual scores and only submit the full panel’s score.

Jones alleges, and Defendant admits, that one of the panel members has
previously recommended the termination of an African-American employee, but has
never recommended the termination of a white employee. However, this fact is of
little value for the pretext inquiry. Without other pertinent information such as the
number of employees that the panel member has recommended for termination and

the racial makeup of the group of employees that the panel member’s


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge . i Sitting Judge if Other
or Magistrate Judge Samuel Der-Yeghiayan than Assigned Judge
CASE NUMBER 03 C 5805 DATE 7/28/2004
CASE Jones vs. Thompson
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
(1) i) Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on _ setfor_ at
(5) Oo Status hearing[held/continued to] (set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) o Trial[set for/re-set for] on at
(8) ia] [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) O Local Rule 41.1 OOFRCP41(a)(1) O FRCP41(a)(2).
(10) | (Other docket entry] For the reasons stated in the attached memorandum opinion, the plaintiffs
motion for summary judgment is denied and the defendant’s motion for summary judgment is granted.
All pending dates and motions are stricken as moot. Terminating case. Enter Memorandum Opinion.
dl) oa [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court.
No notices required.
Notices mailed by judge's staff.
Notified counsel by telephone.
/ | Docketing to mail notices.

Mail AO 450 form.

dunes eh Sid “Sa

Copy to judge/magistrate judge

t

yuL 2 9 2004

date mailed notice

BY 62 Wr hO0e

Di fecej E
atin feepaindd

courtroom
deputy’s.
initials

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railing deputy initials



CONCLUSION
Based on the foregoing analysis, we grant Defendant’s motion for summary

judgment.

Samuel Der-Yeghiayan 7 O of
United States District Court Judge

Dated: July 28, 2004

10


Defendant admits that some of the applicants were given some of the questions
ahead of time. However, Jones merely contends that she does not remember
receiving any questions, but she has never definitively stated that she did not receive
such correspondence. (Adm. hearing 147-48). Even if she did not receive the
correspondence, that would not be sufficient to show pretext. Jones also alleges that
there was a conspiracy on the part of the hiring panel to discriminate against
African-Americans and against women. Jones fails to show that other applicants
who received interview questions ahead of time were not women or African-
Americans.

Jones also claims, and Defendant does not deny for the purposes of summary
judgment, that a member on the selection panel was friends with Wolf for many
years prior to the selection. Jones also contends that three of the panel members had
previously worked with Wolf. However, in making such an assertion Jones again
misses the proper inquiry for a pretext analysis. The pertinent issue is whether
Jones’ employer lied in order to discriminate against her because of her race and
gender. Even if the panel selected Wolf because members knew Wolf and a panel
member was a friend of Wolf, those facts would not in and of themselves establish
race or gender discrimination. Such discrimination is not merely presumed. Jones

must come forth with some evidence that would allow a reasonable trier of fact to



moving party must identify “those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case.”/d. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations or denials in the pleadings, but, “by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a
motion for summary judgment is not simply a “metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586
(1986). Rather, a genuine issue of material fact exists when "the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc. 216
F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences that
favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport

Co., 212 F.3d 969, 972 (7th Cir. 2000).


HHS announced a vacancy for a G-13 health insurance position within the Health
Standards and Quality Division of Health Care Financing Administration (“HCFA”).
The position involved acting as the principal Medicare/Medicaid program
representative for one particular region of the country and would require the
individual to act as a team leader to monitor, direct, evaluate, and provide technical
assistance to agencies in Medicare and Medicaid activities. The individual would be
required to offer expertise in areas such as certification, budgeting, training, and
contractual arrangements. In September of 1993, Jones, Doug Wolf (“Wolf”), a
white male, and several other individuals applied for the position. Wolf was
eventually chosen for the position. Jones has now brought suit against Defendant
alleging that Defendant discriminated against Jones because of her race and because
of her gender in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seg. Specifically Jones claims that the selection process was

flawed and that members of the selection panel were biased.

LEGAL STANDARD
Summary judgment is appropriate when the record reveals that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BEVERLY L. JONES, )
)
Plaintiff, )
)
v. ) No. 03 C 5805
)
TOMMY G. THOMPSON, Secretary of )
the Department of Health and Human )
Services, ) q
) eee
Defendant. ) Ra 4A
woo 4
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiff Beverly L. Jones’ (“Jones”) motion
for summary judgment and on Defendant’s motion for summary judgment. For the
reasons stated below, we deny Jones’ motion for summary judgment and grant

Defendant’s motion for summary judgment.

BACKGROUND
Jones is a black female who began working for the U.S. Department of Health

and Human Services (“HHS”) in Chicago, Illinois in 1979. On August 30, 1993,

| G