order to determine whether the evidence presents a genuine issue of
material fact. Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.
2002).

A plaintiff may use either of two methods to prove
intentional discrimination by an employer on the basis of race,
sex, or age, or retaliation by an employer for engaging in
statutorily protected activity. See, e.g., fraylor v. Brown, 295
F.3d 783, 788 (7th Cir. 2002) (addressing race and sex
discrimination); Bennington v. Caterpillar Inc., 275 F.3d 654, 659
(7th Cir. 2001) (addressing age discrimination); Hilt-Dyson v. City
of Chicago, 282 F.3d 456, 465-66 (7th Cir. 2002) (addressing
retaliation). He may rely on direct evidence, or in the
alternative, he may rely on the burden-shifting method of proof
established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Cheek v. Peabody Coal Co., 97 F.3d
200 (7th Cir. 1996). Mr. Graham does not offer direct evidence of
discrimination and proceeds directly to the indirect, burden-
shifting method. Under the McDonnell Douglas framework, Mr. Graham
must first establish a prima facie case of discrimination, which
creates a rebuttable presumption of unlawful discrimination. Mr.
Graham must prove, first, that he was within a protected class;
second, that his performance met INS’s legitimate expectations;
third, that he suffered an adverse employment action; and finally,

that INS treated similarly situated persons not in the protected


consideration in order to increase diversity in its supervisory
staff.

Mr. Graham cannot show that INS’ non-discriminatory reason for
promoting Ms. Lorigo rather than Mr. Graham is pretextual. Thus,

INS’ motion for summary judgment in its favor is GRANTED

ENTER ORDER

Elaine E. Bucklo
United States District Judge

Dated: October /6 , 2003


alleging that his INS superiors Raymond Rouse, Bruce Kading, and
Thomas Farris discriminated against him, citing his non-selection
for training, collateral and acting supervisory assignments, and a
collateral EEO counselor position, as well as harassment beginning
in 1993. The EEO complaints were consolidated and heard in January,
2000. The administrative judge (“AJ”) heard evidence on the
following issues: (1) Whether the INS had discriminated against Mr.
Graham on the basis of race, religion, and sex; (2) whether the INS
had discriminated against him on the basis of age; (3) whether Mr.
Graham had been subjected to a hostile work environment; and (4)
whether the INS had retaliated against Mr. Graham because of his
EEO complaints. The AJ found that Mr. Graham had not proven any of
these claims by a preponderance of the evidence. Mr. Graham
appealed the final order to the Equal Employment Opportunity
Commission (“EEOC”). In April 2002, in a fifteen-page decision, the
EEOC found that the AJ’s findings and conclusions were supported by
substantial evidence. In July, 2002, Mr. Graham filed this suit
pursuant to 42 U.S.C. § 2000e (Title VII), 42 U.S.C. § 1981, and 29
U.S.C. § 621 (the Age Discrimination in Employment Act), making the
same discrimination claims he made in his EEO complaints. INS now
moves for summary judgment in its favor. I grant the motion.
II.
On a motion for summary judgment, I evaluate the admissible

evidence in the light most favorable to the non-moving party in



class more favorably. Cheek, 97 F.3d at 204. If Mr. Graham
satisfies his prima facie burden, INS must articulate a legitimate,
non-discriminatory reason for its termination decision. Traylor v.
Brown, 295 F.3d 783, 788 (7th Cir. 2002). Mr. Graham must then
“present sufficient evidence that would enable a trier of fact to
find that the explanation is pretextual.” Id.

While the complaint describes a variety of allegedly wrongful
actions taken by INS before and after 1996, Mr. Graham’s memorandum
in opposition to the motion for summary judgment curiously ignores
all these other actions and focuses exclusively on INS’s failure to
promote Mr. Graham to SCI in 1996. Therefore, I conclude that Mr.
Graham has abandoned his attempt to use the additional incidents to
support his discrimination claim, and I will likewise focus on the
his non-promotion to SCI.

It appears that Mr. Graham can make a prima facie case of
employment discrimination. He is a member of a protected class,
African American; the parties agree that he was performing his job
satisfactorily; he was passed over for a promotion he applied for;
and the person who was promoted in his place is white, female, and
younger than he. This state of affairs shifts the burden to INS,
which proffers the non-discriminatory explanation that it believed
that Ms. Lorigo was a better-qualified candidate than Mr. Graham.
The burden now shifts back, and Mr. Graham must show that this

explanation is pretextual.


Minute Seder Form (08/97

\ C50 United States District Court, Northern District of Minois
\ rf i Sitting Judge if Oth
nwor Magistrate Judge Elaine E, Bucklo han Assigned Judge
CASE NUMBER 02 C 4770 DATE 10/16/2003
CASE Graham vs. Ashcroft
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) im} Brief in support of motion due___.
@) Oo Answer brief to motion due___. Reply to answer briefdue__.
(4) Oo Ruling/Hearing on setfor at
(5) Oo Status hearing[held/continued to} [set for/re-set for]on___—ssetfor at
(6) Oo Pretrial conference[held/continued to} [set for/re-set for]on__——ssetfor_ at.
(2) Oo Trial{set for/re-set for] on ___at
(8) sa] (Bench/Jury trial] [Hearing] held/continuedto__—_at
9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CiLocal Rute 41.1 OOFRCP41(a\(1) CFRCP41(a)(2).
do) [Other docket entry] | Enter Memorandum Opinion and Order granting defendant’s motion for

summary judgment. Accordingly, judgment is entered in favor of defendant and against plaintiff. Any
pending motion in this case is terminated as moot.

(1) {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

2

No notices required. number of notices.

W | Notices maited by judge's staff.

Notified counsel by telephone. Oct 1 v £003

date dockets
Doketing to mail notices.
| Mail AO 450 form,

~~ doc depute
siash

Copy to judge/magistrate judge. yunod vo2003
‘ date mailed notice
courtroom ¢0
MPY deputy's sernid 3t 400 wet
initials

Dateltime received ind V3 ;
SUN centtal Clerk's Office mailing deputy initials
£



This he cannot do. Mr. Graham insists that his credentials are
equal or superior to Ms. Lorigo’s, and thus that INS must have
promoted her for illegal reasons. In Millbrook v. IBP, Inc., 280 F.
3d 1169 (7th Cir. 2002), the Seventh Circuit made clear that a
plaintiff’s excellent credentials are not evidence of pretext
unless the plaintiff was so obviously better qualified than the
promotee that no reasonable person could have selected the promotee
for the job in question rather than the plaintiff. Id. at 1180-81.
True, Mr. Graham was rated more highly than Ms. Lorigo on the
initial evaluation which led to their placement on the best
qualified list, but those rankings were not revealed to Mr.
Perryman before he made his decision. As Mr. Graham and Ms. Lorigo
were both deemed among the “best qualified,” and as Ms. Lorigo had
six more years of INS experience than Mr. Graham and submitted
recommendations while he did not, a reasonable employer could
easily have preferred her. The undisputed facts do not meet the
Millbrook standard.

Mr. Graham also makes much of the fact that Mr. Perryman, who
made the SCI promotion decision, acknowledged that he viewed Ms.
Lorigo’s sex as a plus factor because at the time Ms. Lorigo was
promoted, there were no female SCIs in the department. This is not
evidence of illegal discrimination. Mr. Graham points to no case

holding that an employer violates Title VII if it takes gender into



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

EASTERN DIVISION DOCKETED
OCT 1 7 2003

ARCHIE GRAHAM,
Plaintiff,
Vv. No. 02 C 4770

JOHN ASHCROFT, Attorney General,
United States Department of Justice,

Defendant.
MEMORANDUM OPINION AND ORDER
I.

Plaintiff Archie Graham, an African-American male, began
working for the Immigration and Naturalization Service (“INS”), a
branch of defendant Justice Department, in 1977. Between 1977 and
1983, Mr. Graham worked as a Criminal Investigator in the INS’
Philadelphia office. Mr. Graham then left INS for five years. In
1988, he was reinstated as a Journeyman Special Agent in the
Chicago office. Mr. Graham was assigned to Fraud Unit #2, which was
responsible for investigating charges of marriage, document, and
visa fraud. During his employment there, he received a mix of good
and poor performance evaluations, as did other agents, both black
and white. Mr. Graham remained in Fraud Unit #2 until he
voluntarily retired in January 1998.

In 1996, INS announced a vacancy for a Supervisory Criminal
Investigator (“SCI”). Criteria for selection to the post included

knowledge of and demonstrated ability to apply INS laws and


policies; oral and written communication ability; investigative
skill and knowledge; and ability to lead subordinates. Numerous INS
employees, including Mr. Graham, who was then 53 years old, applied
for the SCI position. An INS personnel panel rated and ranked the
applicants and prepared a “best-qualified list” of the best ten
applicants, including Mr. Graham. This list of ten included one
white female, two Hispanic males, one African-American male, five
white males, and one person whose race and gender were not
identified. At the time, the Chicago office had 12 SCIs, all of
whom were male. One was African-American, one was Hispanic, and the
remainder were white. The district director in charge of the
Chicago office, Brian Perryman, selected Wilma Lorigo, a 45-year-
old white woman and the only female on the best-qualified list, for
the SCI position. Ms. Lorigo had been continuously employed by the
INS in a variety of departments and details since 1976. She also
submitted positive recommendations from her supervisors, while Mr.
Graham did not. Mr. Graham admits that he did not have the
training, collateral duty experience, or detail-related experience
of Ms. Lorigo.

In September 1996, Mr. Graham filed a formal Equal Employment
Opportunity (EEO) complaint. In it, Mr. Graham alleged that Mr.
Perryman discriminated against him based on his race, religion,
sex, and age in selecting the new SCI. In May 1998, after his

voluntary retirement, Mr. Graham filed another formal complaint,