We granted the parties’ motion to waive oral argument, so 

the case is submitted on the briefs.

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3772

GEORGE JACKSON,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 3654—Matthew F. Kennelly, Judge.

SUBMITTED NOVEMBER 3, 2008 —DECIDED JANUARY 13, 2009 

Before KANNE, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. George Jackson contends that the

City of Chicago discriminated against him by denying

him two promotions he sought in 2004. The district court

granted summary judgment for the City and Jackson

appeals.
2 No. 07-3772

Jackson, an African-American man in his fifties, began

his employment with the City of Chicago in 1987 as a

carpenter in the Public Works Department. Since

August 2003 he has been a foreman of carpenters in the

Department of Transportation. In 2004, the City posted

an announcement for two positions as general foreman of

general trades—one in the Department of Transportation

and the other in the Department of General Services. The

general foreman of general trades coordinates the

activities of all the trade unions on a given project.

Jackson and a man named Michael Blake applied for

the position in the Department of Transportation. When

the job was posted, Jackson had 30 years of experience

as a journeyman carpenter. Prior to his employment with

the City, Blake worked at a construction company, beginning as a laborer/apprentice but becoming a journeyman

carpenter through the sponsorship of the carpenters’

union. In the interview for the job, the candidates were

asked about their experience estimating the materials

and manpower needed to complete a project. Blake had

relevant experience, and Jackson acknowledged to the

interviewers that he did not. In fact, though it apparently

did not come up at the interview, Jackson had estimated

jobs while working for the Chicago Housing Authority.

Because written communications skills are important

for the position of general foreman, the job selection

process also involved a test of those skills. Each candidate

wrote a narrative answer describing how he would replace

a deck. There also were questions, for which there

were objectively correct answers, testing each candidate’s
No. 07-3772 3

ability to read and interpret drawings and blueprints.

Numerical scores on a 5.0 scale were assigned to the

answers: Blake’s score was a near-perfect 4.75 and Jackson’s was 2.25. Blake got the job.

The second position, general foreman of general trades

in the Department of General Services, drew several

candidates including Jackson, a man named Kevin

O’Gorman, and a number of others for the spot. This

time, as part of the interview process, candidates were

required to complete a written work sample, which

included questions relating to carpentry skills as well as

personnel matters that a general foreman would be expected to handle. All the candidates except Jackson

submitted the sample. Jackson denies that candidates

were asked to complete a written work sample. He says

that the City “has produced no evidence that a work

sample was given as part of the interview process.” The

City, on the other hand, submitted an affidavit from

David Donovan, who at the time was the assistant commissioner, Bureau of Trades & Engineering, in the Department of General Services. He was one of the interviewers

for the position. Donovan said that all the candidates

completed the sample except for Jackson, who refused.

O’Gorman received the highest combined score on the

work sample and the interview. He was the one promoted.

Jackson filed this case alleging race and age discrimination in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-5(f), and the Age Discrimination in

Employment Act, 29 U.S.C. § 626(c). He appeals the grant

of summary judgment for the City on the Title VII race
4 No. 07-3772

discrimination claim only. We review a grant of summary

judgment de novo. Harrell v. U.S. Postal Service, 445 F.3d

913 (7th Cir. 2006).

Jackson has proceeded under the indirect method of

proof set out in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). To succeed, he must first establish a prima

facie case of discrimination. If he does so, the City must

articulate a legitimate, nondiscriminatory reason for the

adverse employment action. If the City succeeds, the

burden of production shifts back to Jackson to prove that

the stated reason for the adverse action was pretextual. To

establish a prima facie case of race discrimination in a

failure to promote claim, Jackson must establish, by

a preponderance of evidence, that he is a member of a

protected class; he is qualified for the position; he was

rejected for the position; and the position was given to a

person outside the protected class who was similarly or

less qualified than he. Jordan v. City of Gary, Ind., 396

F.3d 825 (7th Cir. 2005). If the person who got the promotion was better qualified, the plaintiff’s case fails.

Ultimately, this case rises or falls on the issue of similar

qualifications. Jackson cannot prevail on a claim that he

was similarly or better qualified to either Blake or

O’Gorman. But, he says, they had an advantage in that

they were given training opportunities which were

denied to him as a result of discrimination.

The training opportunities, Jackson argues, involve an

employee’s being chosen to “act up.” What that means

is that an employee is given a chance to fill a higher

position, often supervisory, for some period of time.
No. 07-3772 5

We are, of course, aware that the decision in Ledbetter has 1

sparked significant controversy with critics vowing legislative

(continued...)

Through the acting-up process the employee receives

training and experience that he would not otherwise

have. Jackson says that the City discriminated against

him on the basis of race by not allowing him to act up and

thus put him at a disadvantage in the promotion process.

Were it not for this discrimination, he says he would have

qualifications similar to those of Blake and O’Gorman. The

argument has some surface appeal, but it cannot be

sustained.

In order to challenge an employment practice under

Title VII, the employee must first file a charge with the

Equal Employment Opportunity Commission. Depending

on the state in which the charge is brought, it must be

filed within 180 or 300 days. 42 U.S.C. § 2000e-5(e)(1). In

this case, the limit is 300 days. The “acting-up” decisions

were not part of Jackson’s charge before the Equal Employment Opportunity Commission and, in fact, could not

have been because they fell outside the 300-day time limit.

Jackson’s theory is that the acting-up claims were not

independent claims that had to be presented in an EEOC

charge, but rather were offered to support his primary

claim regarding discrimination in the promotion process.

This theory has been foreclosed by the Supreme Court a

number of times, recently and most emphatically in

Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162

(2007).1
6 No. 07-3772

(...continued) 1

action to reverse its holding. See www.thebusinessledger.com

and the article posted there by Tim McLean on July 24, 2007.

Until the 1970s, almost all “flight attendants” (a politically 2

correct, gender-neutral term) were women, and they were,

with few exceptions, called “stewardesses.”

The line of cases culminating in Ledbetter begins with

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), where a

female flight attendant was forced to resign because 2

the airline did not employ married flight attendants, a

practice now long, and wisely, abandoned. Ms. Evans was

rehired some years later, but she was treated as a new

employee for seniority purposes. She sued, arguing that

the airline’s refusal to give her credit for prior service

gave “present effect to [its] past illegal act and thereby

perpetuate[d] the consequences of forbidden discrimination.” At 557. The Court rejected her argument, saying

that the earlier discrimination did not constitute a

present violation.

Similarly, in National Railroad Passenger Corp. v. Morgan,

536 U.S. 101 (2002), the Court explained that the term

“employment practice” generally refers to a “discrete act

or single ‘occurrence’ ” taking place at a particular time.

At 110-11. Examples of such discrete acts are “termination, failure to promote, denial of transfer, [and] refusal

to hire.” At 114.

In Ledbetter, the Court extended the principle to

claims involving discrimination in pay. The dissent
No. 07-3772 7

argued that the extension to pay discrimination went a step

too far; that it was “a cramped interpretation of Title VII.”

The dissent looked to Bazemore v. Friday, 478 U.S. 385

(1986), which involved a situation where paychecks

were issued pursuant to past discriminatory pay schedules—one for whites, one for African-Americans. The dual

pay schedules were abandoned, but pay disparities

attributable to the old dual pay schedules persisted. The

Bazemore Court found that the past discrimination meant

that the employer engaged in intentional discrimination

each time it issued a paycheck in the present.

But rather than extending the Bazemore principle, the

majority in Ledbetter relied on Evans and Morgan. Ledbetter

was a salaried employee at a Goodyear plant where all

such employees were given or denied pay raises based

on performance evaluations completed by supervisors.

She alleged that she was given sub-par evaluations in

the past because of her sex and that her pay had not

increased as much as it would have had she been fairly

evaluated. The actual denials of pay raises (based on

alleged discriminatory performance evaluations) were

outside the limitations period, but she claimed that paychecks issued during the charging period were separate

acts of discrimination. The Court rejected her claim,

reaffirming the Evans line of cases: a “new violation

does not occur, and a new charging period does not

commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting

from the past discrimination.” At 2169.

Even if Evans and Morgan left any doubt, Ledbetter

forecloses Jackson’s claim. The acting-up decisions here
8 No. 07-3772

occurred outside the 300-day charging period. Jackson was

not similarly qualified to Blake, especially considering his

low score on the objective promotion test. Nor was he

similar to O’Gorman who, like other applicants except

Jackson, submitted a written work sample. The acting-up

decisions were discrete acts which could be considered

only if they occurred within the appropriate time

period covered by his EEOC charge. It’s true that, in

certain situations, untimely actions can be used as “background evidence” to support a claim. Evans, Morgan, and

Fischer v. Avanade, Inc., 519 F.3d 393 (7th Cir. 2008). Morgan

allows its use in certain hostile work environment cases.

But its use here as “background evidence” would require

a mini-trial: What were the available “acting-up” positions? Who applied? What were the qualifications of those

who were accepted? How did they compare to Jackson?

What skills were learned or enhanced by getting a chance

to “act up”? How would those skills have better enhanced

Jackson’s chances of getting the positions that were

given to Blake and O’Gorman? These are just a few of

the issues that would have to be considered to even

make the alleged “background evidence” relevant to the

two positions Jackson sought but didn’t get in 2004.

Finally, as the Court said in Morgan, at 113, “discrete

discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed

charges. Each discrete discriminatory act starts a new

clock for filing charges alleging that act.” A new violation does not occur “upon the occurrence of subsequent

nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Ledbetter, at 2169.
No. 07-3772 9

Accordingly, the judgment of the district court is

AFFIRMED.

1-13-09