In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3990

ERIC D. SIMPLE,

Plaintiff-Appellant,

v.

WALGREEN COMPANY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04-1305—Michael M. Mihm, Judge.

____________

ARGUED NOVEMBER 14, 2007—DECIDED DECEMBER 26, 2007

____________

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The district court granted summary judgment in favor of the defendant in this suit for

racial discrimination in employment in violation of Title

VII and 42 U.S.C. § 1981, and the plaintiff appeals. He had

been hired by Walgreen in 1995, initially as a management trainee. Four years later he was promoted to assistant store manager and two years after that he was offered

the job of manager of a Walgreens store in Kankakee,

Illinois. He declined the offer because the store was in a

“socioeconomically challenged” area with a high “shrink,”

which means a gap between expected and actual profits
2 No. 06-3990

that is due to shoplifting. The offer was made by Michael

Palmer, the district manager for the region in Northern

Illinois that includes Kankakee. The following year

Palmer offered the plaintiff a store manager job in

Normal, but the plaintiff rejected that offer too. Walgreen’s

demographic tracking records show that the average

annual income of the customers of both the Kankakee

store and another store, in Peoria, that the plaintiff was

also offered and declined is “low” (defined as less than

$40,000) and that more than 40 percent of the customers

are black. Although the store in Normal that the plaintiff

was also offered had a more affluent customer base and

80 percent of its customers were white, the defendant

makes nothing of the demographic differences between

that store and the ones in Kankakee and Peoria.

A few years later, Palmer, though aware of the plaintiff’s

wanting to manage a store in Palmer’s district (which

contains 28 Walgreen stores), hired a white woman,

Melissa Jonland, as manager of a store in Pontiac, Illinois,

without notifying the plaintiff of the opening. The customers of this store have an average income of $40,000 to

$60,000 and more than 80 percent of them are white. It is

a more desirable store to manage than the Kankakee and

Peoria stores that had been offered to the plaintiff—it is

more profitable (in part because of less shrinkage), and

store managers’ bonuses are based on their stores’ profits.

It may seem odd that a store would be less profitable

just by virtue of being in a poorer neighborhood, even if

that means greater losses from shoplifting; there might

well be offsetting cost savings, such as in rent or wages.

But Walgreen has not made an issue of relative profitability.

By the time Jonland was appointed to manage the

Pontiac store, the plaintiff had been an assistant store
No. 06-3990 3

manager for four years and Jonland for only two. (Only

assistant store managers are eligible for promotion to store

manager.) The company considered both to be highly

qualified for appointment as store managers. Only the

difference in experience—which favored the plaintiff—seems to have distinguished them. Jonland had not

expressed interest in the Pontiac store, and Palmer had

not offered her a store manager’s job at one of the predominantly black/low-income stores.

Shortly after Jonland’s appointment, Leanne Turley, the

manager of the store of which the plaintiff was assistant

manager, had a conversation with him in which, she

testified in her deposition, “I may have stated that Pontiac

was possibly not ready to have a black manager. It is well

known in this area that some of the smaller, outlying

towns have some very racist tendencies, and I was

simply trying to make [the plaintiff] feel better because my

feeling was he may not have been very happy working

there.” Turley had previously been the manager of a

store of which Jonland had been assistant manager; and

in an answer to an interrogatory propounded by the

plaintiff, Palmer stated that his assessment of Jonland’s

performance, in deciding to promote her to store manager,

had been “supported by” Turley.

The plaintiff’s lawyer does not help his cause by arguing

that Walgreen’s tracking of the racial composition of its

customers shows discriminatory intent, that Jonland but

not the plaintiff was once reprimanded for speaking in a

vulgar manner to a coworker, that Palmer’s admission

that he consulted Turley about the appointment of Jonland constitutes evidence that his decision was influenced

by racism on Turley’s part, and that the plaintiff has made

out a prima facie case both by direct evidence of discrimi-
4 No. 06-3990

nation and by the indirect method of the McDonnell Douglas

case. Retailers are naturally very interested in the racial

makeup of their customer population because people of

different races often have different tastes and sensitivities;

Jonland’s episode of vulgarity could hardly be thought a

career impediment; all that Palmer admitted was that

he was influenced by Turley’s assessment of Jonland’s

performance when Turley had been Jonland’s boss; and

when a plaintiff in a discrimination case has direct evidence of discrimination as well as the indirect evidence

required to make out a prima facie case under McDonnell

Douglas he does not have to show that either approach,

taken in isolation from the other, makes out a prima

facie case—he can combine them. “Any demonstration

strong enough to support a judgment in the plaintiff’s

favor if the employer remains silent will do, even if the

proof does not fit into a set of pigeonholes.” Carson v.

Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996) (per

curiam); see also Leffel v. Valley Financial Services, 113

F.3d 787, 793 (7th Cir. 1997). “Despite the minutiae of

the various proof schemes set forth in McDonnell

Douglas . . . the straightforward question to be answered

in discrimination cases is whether the plaintiff has successfully demonstrated that she was the victim

of . . . discrimination on the part of the employer.” Burns

v. Aaf-McQuay, Inc., 96 F.3d 728, 732-33 (4th Cir. 1996).

McDonnell Douglas creates an “exploding” presumption.

It puts pressure on the defendant to explain his motive

for the employment action of which the plaintiff complains. Once the explanation is given, the presumption

falls away and the judge has to decide whether there is

enough evidence of unlawful conduct to entitle the plaintiff to a trial. There is some question about the literal
No. 06-3990 5

applicability of the McDonnell Douglas test in this case

because it is uncertain (though likely) that Palmer knew

that the plaintiff would have liked to be considered for

the Pontiac store. No matter; the defendant was unable to

give a coherent reason for appointing Jonland rather

than the plaintiff. Palmer gave inconsistent explanations,

on one occasion saying that Jonland “outshines you [the

plaintiff] in market appeal” and on another that she

would be better at improving “employee morale.” The

inconsistency is suggestive of pretext and thus is evidence

of discrimination, and it does not stand alone, but instead

reinforces the other evidence of a racial motive. A finding

of pretext can complete the prima facie case under

McDonnell Douglas, but it can also be independent evidence of discrimination. St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 511 (1993); Forrester v. Rouland-Borg Corp.,

453 F.3d 416, 417 (7th Cir. 2006).

Despite the weaknesses of some of the arguments made

by the plaintiff’s lawyer, it is apparent that the district

judge should not have granted summary judgment. A

reasonable jury, if the evidence gathered in the summary judgment proceedings were the evidence at a trial,

could find that the plaintiff was denied the promotion to

manage the store in Pontiac because he is black. The

evidence suggests that Palmer wanted to steer his highly

regarded black assistant manager to a store in a predominantly black, low-income neighborhood; when the plaintiff balked, Palmer suggested that he might prefer to

move to a big city, where there are more Walgreens stores.

There is no evidence that Jonland was more qualified to

manage the store in Pontiac than the plaintiff, who had

twice her experience as an assistant manager, the mandatory stepping stone to store manager. But she is white, and
6 No. 06-3990

the store is in a predominantly white neighborhood,

while the plaintiff is black and so was twice offered a

“black” store—and when the store manager’s job at the

“white” store fell vacant he was ignored. The significance of Turley’s remark about racism in Pontiac lies in

the fact that as an experienced Walgreens store manager

(it appears that she had been one for at least four years)

she was undoubtedly aware of what Palmer was looking for in a store manager in Pontiac, and one interpretation of the remark is that the plaintiff’s race would bar

him from consideration by Palmer. Cf. Collins v. Kibort,

143 F.3d 331, 335-36 (7th Cir. 1998); Village of Bellwood

v. Dwivedi, 895 F.2d 1521, 1530-31 (7th Cir. 1990). The

plaintiff would not feel “happy” among Pontiac’s white

racists, which is a standard euphemism for refusing a

job to someone of a different race from the people he

would be associating with. Cf. Phillips v. Joint Legislative

Committee, 637 F.2d 1014, 1028-29 (5th Cir. 1981). Racial

segregation is obviously a form of racial discrimination.

Collins v. Kibort, supra, 143 F.3d at 335-36.

Turley’s statement was an admission by Walgreen

because it was a statement about a matter within the

scope of her employment, Fed. R. Evid. 801(d)(2)(D)—

remember that she had been consulted by Palmer about

the appointment of a manager for the Pontiac store. And

this means that the plaintiff’s deposition testimony that

Turley had also told him that “race played a factor” in the

decision to appoint Jonland to manage the Pontiac store

was another admission that race had played a role in

Palmer’s decision to appoint Jonland rather than the

plaintiff. “[A] subordinate’s [in this case, the plaintiff’s]

account of an explanation of the supervisor’s [Turley’s]

understanding regarding the criteria utilized by manage-
No. 06-3990 7

ment in making decisions on hiring, firing, compensation, and the like is admissible against the employer,

regardless of whether the declarant has any involvement

in the challenged employment action.” Marra v. Philadelphia

Housing Authority, 497 F.3d 286, 298 (3d Cir. 2007); see also

Williams v. Pharmacia, Inc., 137 F.3d 944, 951 (7th Cir. 1998);

Hybert v. Hearst Corp., 900 F.2d 1050, 1053 (7th Cir. 1990);

Woodman v. Haemonetics Corp., 51 F.3d 1087, 1090-94

(1st Cir. 1995); Abrams v. Lightolier, Inc., 50 F.3d 1204, 1215-

16 (3d Cir. 1995).

We acknowledge that in apparent contradiction to the

passage from Marra and to the other decisions that we

have just cited (including our own Williams v. Pharmacia,

Inc.), some of our decisions say that “the declarant must

[for his evidence to be treated as an admission of his

employer] be involved in the decisionmaking process

affecting the employment action.” E.g., Keri v. Board of

Trustees of Purdue University, 458 F.3d 620, 630 (7th Cir.

2006); Young v. James Green Management, Inc., 327 F.3d 616,

622 n. 2 (7th Cir. 2003). But the contradiction dissolves

when we note the difference between “employment action”

and “decisionmaking process affecting the employment

action.” Turley was not involved in the employment

action—appointing Jonland to be the Pontiac store manager. But unlike the witnesses in Keri and Young, she

was involved in the process that led up to that action, by

being consulted about the appointment. That was

enough to make her statement—which was confirmed,

moreover, by an internal investigation by Walgreen—an

admission by her employer. See Aliotta v. National Railroad

Passenger Corp., 315 F.3d 756, 761-62 (7th Cir. 2003); Marra

v. Philadelphia Housing Authority, supra, 497 F.3d at 298-99.
8 No. 06-3990

The trial may cast the facts in a different light; we do

not mean to prejudge the outcome. But there is enough

evidence of discrimination to entitle the plaintiff to a trial.

REVERSED AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-26-07