Millbrook, Gary v. IBP, Incorporated

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1189

Gary Millbrook,

Plaintiff-Appellee,

v.

IBP, Inc.,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 98-4121--Michael M. Mihm, Judge.

Argued September 20, 2001--Decided February 20, 2002

Before Bauer, Manion, and Evans, Circuit

Judges.

Manion, Circuit Judge. Gary Millbrook,

a janitor at IBP, Incorporated, sued his

employer under Title VII and 42 U.S.C.

sec. 1981, alleging that IBP

discriminated against him on the basis of

his race eight times when it selected

other candidates to fill the position of

Quality Control Inspector. A jury

rejected seven of Millbrook’s eight

discrimination claims, but concluded that

IBP had discriminated against Millbrook

on one occasion. The jury awarded

Millbrook $7,500 in pain and suffering,

$25,000 in lost wages, and $100,000 in

punitive damages. The district court also

ordered IBP to instate Millbrook as a

Quality Control Inspector and awarded him

attorney’s fees. Both before and after

the jury verdict, IBP moved for judgment

as a matter of law. The district court

denied both motions. IBP appeals. We

reverse.

I.

Gary Millbrook began working as a

janitor at IBP’s Joslin, Illinois plant

in November 1995. IBP is in the meat

processing business and is regulated by

the United States Department of

Agriculture ("USDA"). According to

Millbrook, he accepted the janitorial

position because he hoped to advance

within IBP to the position of Quality

Control Inspector, and eventually obtain

a position with the USDA.

Quality Control Inspectors at IBP are in

charge of inspecting the processing of

carcasses and end-products, and assuring

that they meet the standards of the USDA,

IBP, and the customer. Quality Control

Inspectors are also responsible for

completing the paperwork required by the

USDA. While the position of Quality

Control Inspector is sought after, it is

also stressful because in policing the

product quality, the inspectors must

often confront production supervisors.

Accordingly, IBP seeks people with strong

communication skills.

IBP employs approximately forty Quality

Control Inspectors, with about twenty

inspectors working the daytime "A Shift"

and the other twenty working the

nighttime "B Shift." Shift A inspectors

report to Quality Control Supervisor

Roger Baylor, and B Shift inspectors

report to Audrey Jordan. Both Baylor and

Jordan were responsible for interviewing

candidates when Quality Control Inspector

positions became available. During 1996

and 1997, IBP authorized Baylor and

Jordan to make the final hiring decision,

with instructions to select the best

qualified applicant.

In January 1996, Millbrook applied for

the position of Quality Control

Inspector. IBP selected another candidate

for the position. Between 1996 and 1998,

Millbrook applied an additional nine

times for the position of Quality Control

Inspector, but on each occasion IBP

selected another applicant. On November

30, 1998, Millbrook sued IBP for race

discrimination under Title VII and

Section 1981, alleging that IBP

discriminated against him on eight of the

ten occasions that he applied for, and

was denied, the Quality Control Inspector

position; Millbrook admits that on the

other two occasions, the other applicants

were better qualified.

Millbrook’s case was tried before a

jury. At trial, Millbrook presented

evidence concerning the qualifications of

the eight applicants selected over him

for the position of Quality Control

Inspector. Millbrook argued that he had

better qualifications than all of the

other applicants, but that IBP chose the

other applicants over him because he is

black. IBP argued in response that on

each occasion that Millbrook applied for

the position of Quality Control

Inspector, another applicant was better

qualified, and that it always selected

the best qualified candidate to fill the

vacancy.

At the close of evidence, IBP moved for

judgment as a matter of law, but the

district court denied its motion, sending

the case to the jury. On a verdict form

with specific interrogatories, the jury

rejected seven of Millbrook’s eight

claims of race discrimination, but

concluded that IBP had discriminated

against Millbrook on the basis of race

when it selected DeWayne Harris over him

in June 1997. The jury awarded Millbrook

$7,500 in pain and suffering, $25,000 in

lost wages, and $100,000 in punitive

damages. After the jury verdict was

returned, IBP again moved for judgment as

a matter of law, but the district court

denied that motion as well. Millbrook

then moved for attorney’s fees, and for a

court order directing IBP to instate him

as a Quality Control Inspector. The

district court granted Millbrook

attorney’s fees and also ordered IBP to

fill the next Quality Control Inspector

vacancy with Millbrook.

IBP appeals, arguing that it was

entitled to judgment as a matter of law

because Millbrook failed to present

sufficient evidence to support a verdict

of race discrimination. Alternatively,

IBP argues that Millbrook failed to

establish a right to punitive damages.

IBP also argues that the district court

erred in ordering Millbrook instated as

the next Quality Control Inspector.

II.

On appeal, IBP first argues that the

district court erred in denying its

motion for judgment as a matter of law.

See Fed.R.Civ.P. 50(a). We review the

denial of this motion de novo, examining

the record as a whole to determine wheth

er the evidence presented, combined with

all reasonable inferences permissibly

drawn therefrom, was sufficient to

support the jury’s verdict of race

discrimination. Collins v. Kibort, 143

F.3d 331, 335 (7th Cir. 1998). While

"[w]e will overturn a jury verdict for

the plaintiff only if we conclude that no

rational jury could have found for the

plaintiff," id., "a mere scintilla of

supporting evidence will not suffice."

Futrell v. J.I. Case, 38 F.3d 342, 346

(7th Cir. 1994).

Initially, we stress that the only issue

on appeal is IBP’s selection of Harris

over Millbrook in June 1997. While

Millbrook applied a total of ten times

for the position of Quality Control

Inspector, and while he sued alleging

race discrimination on eight of those ten

occasions, the jury rejected all of

Millbrook’s claims except for the one

based on IBP’s selection of Harris.

Millbrook does not appeal the jury’s

verdict in favor of IBP on the other

seven counts. Therefore, the sole issue

on appeal is whether sufficient evidence

supports the jury’s finding that IBP

discriminated against Millbrook on the

basis of race when it hired Harris over

him.

Before reviewing the evidence, we also

pause to clarify what "sufficiency of the

evidence" means following a trial in a

discrimination case. On appeal, both

parties frame the issue as whether

sufficient evidence supported a finding

that IBP’s asserted reason for selecting

Harris over Millbrook--his superior

qualifications--was pretextual under the

McDonnell Douglas burden-shifting

framework. McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).

The indirect burden-shifting approach of

McDonnell Douglas is one method of

proving discrimination, and since

Millbrook does not purport to have direct

evidence of race discrimination, it is

the only method at his disposal. Under

this method, a Title VII plaintiff must

establish a prima facie case of unlawful

discrimination. "This may be done by

showing (i) that he belongs to a racial

minority; (ii) that he applied and was

qualified for a job for which the

employer was seeking applicants; (iii)

that, despite his qualifications, he was

rejected; and (iv) that, after his

rejection, the position remained open and

the employer continued to seek applicants

from persons of complainant’s

qualifications," id. at 802, or that "the

position was filled with a person not in

the protected class." Gorence v. Eagle

Food Centers, Inc., 242 F.3d 759, 765

(7th Cir. 2001). After the plaintiff has

established a prima facie case, an

inference of discrimination exists. The

burden of production then shifts to the

defendant-employer to produce evidence of

a legitimate, nondiscriminatory reason

for its employment decision. Emmel v.

Coca-Cola Bottling Co. of Chicago, 95

F.3d 627, 629 (7th Cir. 1996). "Once this

burden of production is met, any

inference of discrimination evaporates.

To prove unlawful discrimination at this

stage, the plaintiff must demonstrate to

the jury that the reason proffered by the

employer was mere pretext, an explanation

designed to obscure the unlawful

discriminatory employment action." Id.

In this case, both parties agree that

Millbrook presented a prima facie case of

race discrimination, and that IBP

responded with a legitimate non-

discriminatory explanation for its

selection of Harris. Therefore, on appeal

the parties focus on the issue of

pretext. However, once a trial is

complete and judgment rendered, the

burden-shifting framework of McDonnell

Douglas falls away: "Post-trial we

consider only whether the record supports

the resolution of the ultimate question

of intentional discrimination." Collins,

143 F.3d at 335. Accordingly, the

appropriate question on appeal is not

whether IBP’s proffered reason for

rejecting Millbrook’s application was

pretextual, but rather whether sufficient

evidence supports the jury’s finding that

IBP discriminated against Millbrook

because he is black. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133,

148 (2000) ("The ultimate question is

whether the employer intentionally

discriminated, . . .").

The question of pretext, however, can

still be relevant. As the Supreme Court

explained in Reeves, "a plaintiff’s prima

facie case, combined with sufficient

evidence to find that the employer’s

asserted justification is false, may

permit the trier of fact to conclude that

the employer unlawfully discriminated."

Id. at 148. In other words, if the

plaintiff proves at trial that the

defendant’s proffered reason for its

employment decision was false, i.e.,

pretextual, that is "one form of

circumstantial evidence that is probative

of intentional discrimination, and it may

be quite persuasive." Id. But "[i]t is

not enough to disbelieve the employer;

the factfinder must believe the

plaintiff’s explanation of intentional

discrimination." Id. Thus, as the Supreme

Court in Reeves stressed, the existence

of the prima facie case, coupled with

evidence of pretext, is not always enough

to satisfy the plaintiff’s burden of

proving intentional discrimination. Id.

at 146-47 ("This is not to say that such

a showing by the plaintiff will always be

adequate to sustain a jury’s finding of

liability. Certainly there will be

instances where, although the plaintiff

has established a prima facie case and

set forth sufficient evidence to reject

the defendant’s explanation, no rational

factfinder could conclude that the action

was discriminatory.").

Applying Reeves, we must first consider

whether Millbrook presented sufficient

evidence of pretext--not because that is

dispositive, but because if IBP’s

asserted justification for selecting

Harris were pretextual, that could

constitute circumstantial evidence that

IBP intentionally discriminated against

Millbrook. From there, we review the

record as a whole to determine whether

the evidence in its entirety supports a

reasonable inference of race

discrimination. Id. at 148.

Pretext "means a lie, specifically a

phony reason for some action." Russell v.

Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.

1995). The question is not whether the

employer properly evaluated the competing

applicants, but whether the employer’s

reason for choosing one candidate over

the other was honest. Brill v. Lante

Corp., 119 F.3d 1266, 1273 (7th Cir.

1997). "’Pretext for discrimination’

means more than an unusual act; it means

something worse than a business error;

’pretext’ means deceit used to cover

one’s tracks." Clay v. Holy Cross Hosp.,

253 F.3d 1000, 1005 (7th Cir. 2001)

(internal citations omitted). Thus, even

if IBP’s reasons for selecting Harris

over Millbrook were "mistaken, ill

considered or foolish, so long as [the

employer] honestly believed those

reasons, pretext has not been shown."

Jordan v. Summers, 205 F.3d 337, 343 (7th

Cir. 2000).

In this case, IBP stated that it

selected Harris over Millbrook because

Harris was more qualified, while

Millbrook argues that this explanation

was a lie. First, Millbrook contends that

the jury could reasonably conclude that

IBP lied about its reason for selecting

Harris because IBP provided a different

explanation at trial than it did during

the interview process. To support this

argument, Millbrook points to the comment

section of the Applicant Flow Log, which

the B Shift Manager, Audrey Jordan,

compiled when she interviewed Harris. On

the Applicant Flow Log, Jordan noted that

Harris had prior experience. This,

according to Millbrook, contradicted

IBP’s proffered trial rationale--that

Harris was more qualified. But the

Applicant Flow Log does not purport to be

IBP’s explanation of its hiring decision;

rather, the Flow Logs consist of

interview notes which the managers used

to record their impressions during the

interviews. Moreover, contrary to

Millbrook’s position, there is nothing

inconsistent in IBP’s trial position. At

trial, IBP explained that it selected

Harris because he was more qualified for

the position, and it then explained why

it believed Harris to be better

qualified--because Harris had prior

experience in quality control, possessed

superior communication skills, and

conveyed a confident demeanor. She

further explained that these attributes

would allow Harris to handle the

pressures of confronting production

supervisors. Rather than contradict the

trial testimony, the Application Flow Log

actually confirms IBP’s assertion that it

believed Harris to be more qualified.

Next, Millbrook points out that IBP

hired Harris over him even though Harris

did not submit a resume, whereas IBP

rejected numerous other candidates who

failed to submit a resume. On appeal, IBP

explains that it only required internal

applicants to submit resumes; candidates

who did not work at IBP were required to

complete a more extensive application

form. Because Harris was not a current

IBP employee, he needed to submit a

detailed application, but no resume was

required. However, as a current employee,

Millbrook was required to submit only a

resume. The evidence at trial confirms

that the applicants whom IBP rejected for

failing to submit a resume were current

employees, thus verifying IBP’s

explanation of what appeared to be

disparate treatment. Therefore, contrary

to Millbrook’s position, the fact that

IBP required him to submit a resume, but

not Harris, is not evidence of pretext.

Millbrook next claims that "negative

subjective comments regarding other

African-American applicants" made by

Audrey Jordan and Roger Baylor on the

Application Flow Logs demonstrate their

racial bias. Specifically, Millbrook

points to interview notes such as "shows

no real interest," "no skills experience

pertaining to this position," "gave poor

and incomplete answers to questions," and

"lacks ability to answer questions

clearly."

Initially, we note that "nothing in

Title VII bans outright the use of

subjective evaluation criteria." Sattar

v. Motorola, Inc., 138 F.3d 1164, 1170

(7th Cir. 1998). See also, Denney v. City

of Albany, 247 F.3d 1172, 1186 (11th Cir.

2001) ("It is inconceivable that Congress

intended anti-discrimination statutes to

deprive an employer of the ability to

rely on important criteria in its

employment decisions merely because those

criteria are only capable of subjective

evaluation.") (internal quotation

omitted). Rather, "[a] subjective reason

can constitute a legally sufficient,

legitimate, nondiscriminatory reason

under the McDonnell Douglas/Burdine

analysis." Denney, 247 F.3d at 1185

(internal quotation omitted). In fact,

"subjective evaluations of a job

candidate are often critical to the

decisionmaking process, and if anything,

are becoming more so in our increasingly

service-oriented economy. . . ." Id. at

1185-86 (internal quotations omitted).

Thus, "[a]bsent evidence that subjective

hiring criteria were used as a mask for

discrimination, the fact that an employer

based a hiring or promotion decision on

purely subjective criteria will rarely,

if ever, prove pretext under Title VII .

. . ." Id. at 1185. See also, Weihaupt v.

American Medical Ass’n, 874 F.2d 419, 429

(7th Cir. 1989) (the mere fact that an

employer’s beliefs were based on

subjective factors fails to establish

that its assessment of employee’s skills

was made in bad faith); Dorsch v. L.B.

Foster Co., 782 F.2d 1421, 1427 (7th Cir.

1986) (a "subjective qualification

assessment does not convert an otherwise

legitimate reason into an illegitimate

one").

In this case, there is absolutely no

evidence that the subjective criteria IBP

considered in evaluating Millbrook and

other candidates served as a "mask for

discrimination." The subjective interview

comments Millbrook points to, while

negative, were all race-neutral.

Additionally, at trial, IBP provided

specific facts supporting its subjective

evaluation of Millbrook. For instance,

Jordan explained that she concluded that

Millbrook had poor communication skills

because he failed to make eye contract

during the interview and did not seem

confident in his answers. Moreover,

similar comments were made of white and

other non-black applicants, negating any

possible inference that the comments were

codes for race. Therefore, contrary to

Millbrook’s position, the negative

comments do not create an inference of

pretext, but instead merely indicate that

the candidates were lacking traits needed

for the job, which explains why they were

not selected by IBP. See, e.g., Sattar,

138 F.3d at 1170.

Next, Millbrook argues that the fact

that during 1996 and 1997 Audrey Jordan

(the supervisor who selected Harris

instead of him) did not hire any blacks

as Quality Control Inspectors creates an

inference of pretext. However, while

Millbrook focuses on 1996 and 1997, his

discrimination claims are based on the

years of 1996-1998, and the record

demonstrates that during 1998, Jordan

offered a position to a black candidate.

In any event, absent a "link between this

alleged discrimination and the employment

decisions which [the plaintiff] is

challenging, this evidence does not

assist the plaintiff." Sample v. Aldi,

Inc., 61 F.3d 544, 551 (7th Cir. 1995).

Moreover, the fact that no blacks were

hired during a two-year time frame is at

best anecdotal, and we have held that we

"cannot find discrimination on such a

thin basis." Kuhn v. Ball State Univ., 78

F.3d 330, 332 (7th Cir. 1996). Rather,

"[o]ur opinions emphasize the need to get

beyond a few comparison cases." Id.

Instead, "[w]hat a plaintiff in

[Millbrook’s] position has to do is

subject all of the employer’s decisions

to statistical analysis to find out

whether [race] makes a difference." Kuhn,

78 F.3d at 332. Millbrook did not present

a statistical analysis--he merely pointed

to the fact that he and another black

candidate were rejected, and that no

other blacks were hired in a two-year

time frame. Without knowing how many of

the forty Quality Control Inspector

positions became available during that

time frame, the number and race of the

candidates applying for those positions,

and the candidates’ relative

qualifications, "[s]uch a list is next to

worthless." Id. See also, Odom v. Frank,

3 F.3d 839, 849 (5th Cir. 1993) (raw data

of age, race and location of persons

promoted from 1980-1993, "without more,

is not competent to prove anything").

Under these circumstances, the fact that

during a two-year time frame no blacks

were hired to fill an unknown number of

vacancies fails to create a reasonable

inference that IBP was lying when it

explained that it hired Harris over Mill

brook because it believed Harris to be

better qualified.

Finally, Millbrook argues that the jury

was allowed to view his qualifications

compared to Harris and "could easily have

concluded that Mr. Millbrook’s college

education, significant management

experience, experience in the industry,

prior communication skills through his

job with Black Hawk College, his

exemplary personnel record and general

qualifications made him more qualified

than Mr. Harris." IBP responds that while

Millbrook had a college degree, it was in

an unrelated area--education--whereas

Harris had completed some relevant

college courses, including relevant

quality control management course work.

IBP further points out that while

Millbrook worked at IBP, his experience

as a janitor (and even as a janitor

supervisor at Black Hawk College) was

irrelevant to the position of Quality

Control Inspector. IBP also points out

that while Millbrook worked for another

meat packaging company, he only worked

there for nine months, and his job did

not include quality control

responsibilities. Additionally, that job

dated back to the 60’s--long before new

USDA standards were implemented. Harris

on the other hand had prior-- and more

recent--work experience in quality

control, and had leadership skills from

serving as a sergeant in the Air Force

and acting as a platoon leader. Finally,

IBP contends that Millbrook’s

communication skills were lacking and

given the confrontational nature of the

Quality Control Inspector position, it

was essential that applicants possess

superior communications skills. Harris

had those skills, as demonstrated by his

Communicator of the Year award from the

Air Force in 1995.

What we have here then are two qualified

applicants with varying credentials, and

different views as to which candidate is

best for the job. Millbrook argues that

when an employer asserts that it chose

another applicant over the plaintiff

because the selected candidate was more

qualified, the jury may return a verdict

of discrimination if, after reviewing the

applicants’ relative qualifications, it

simply does not believe the employer’s

assertion.

In support of his position, Millbrook

cites Emmel v. Coca-Cola Bottling Co. of

Chicago, 95 F.3d 627 (7th Cir. 1996), and

Bell v. Environmental Protection Agency,

232 F.3d 546 (7th Cir. 2000). At first

blush, language in both Emmel and Bell

appears to give some support to

Millbrook’s position. Emmel, 95 F.3d at

633 ("Emmel’s indirect case is built on

the evidence that she was more qualified

than at least some of those men

promoted," and while Coca-Cola presented

a legitimate non-discriminatory

explanation, "the jury did not have to

believe it."); Bell, 232 F.3d at 551

("The EPA cannot escape scrutiny merely

by claiming that they selected the most

qualified candidates," and a fact-finder

"could reasonably find that the EPA was

dishonest when it concluded that the

selectees were more qualified for the

promotions than the plaintiffs were.").

However, in both of those cases there

was evidence of discrimination in

addition to the differences in relative

qualifications. For instance, in Emmel,

in addition to the evidence of the

candidates’ relative qualifications, the

plaintiff presented direct evidence of

discrimination, including testimony that

after she was passed over for the

promotions, Coca-Cola Vice President John

Walsh took her aside, stating "Let’s

close the door and speak honestly. Karen,

you know, as we all know, they wanted men

in these positions . . . ." Emmel, 95

F.3d at 630. Emmel presented further

direct evidence including other

statements from top officers that "’they’

believed women had no role in upper management.’"

Id. at 632. Emmel also presented evidence

calling into question Coca-Cola’s

proffered trial explanation for its

employment decision, namely its failure

to provide an explanation--other than the

obviously impermissible one that "they

wanted men in these position"-- and that

it was not until trial that Coca-Cola

justified its decision with a non-

discriminatory reason. Id. at 634-35.

Likewise, in Bell, the plaintiff

presented evidence in the form of "an

internal EPA document [which] suggests

that the EPA did not select the best

candidates." Bell, 232 F.3d at 551. Bell

also presented statistical evidence

supporting the plaintiff’s claim of

discrimination./1

In sum, in both Emmel and Bell the

plaintiffs presented evidence of

discrimination beyond the relative

qualifications of the candidates. See

Emmel, 95 F.3d at 635; Bell, 232 F.3d at

554. However, absent such additional

evidence of discrimination, this court

has held that a jury verdict for the

employee cannot stand if the jury is

simply disagreeing with the company as to

who is best qualified.

For instance, in Lindale v. Tokheim

Corp., 145 F.3d 953 (7th Cir. 1998), the

plaintiff sought to sustain the jury’s

verdict of sex discrimination based on

her comparative qualifications. We

reversed the district court’s denial of

the employer’s motion for judgment as a

matter of law, holding that "[t]he

comparison evidence is so weak in the

circumstances that it cannot by itself

support an inference of discrimination--

and there is virtually nothing else." Id.

at 957 (emphasis added).

Likewise, in Guerrero v. Ashcroft, 253

F.3d 309 (7th Cir. 2001), the plaintiff

sought to prove pretext based on a

comparison of the candidates’

qualifications. In that case, Antonio

Guerrero, an Hispanic FBI agent, sued the

Attorney General under Title VII for race

and national origin discrimination after

he was denied a promotion to a GS-14

level of one of the FBI’s Organized Crime

Squads. Id. at 311. The FBI claimed that

it selected another candidate over

Guerrero because of deficiencies in

Guerrero’s background as compared to the

agent who received the promotion. Id. at

314-15. The district court granted the

FBI summary judgment, concluding that

Guerrero had failed to present sufficient

evidence of pretext. Guerrero appealed,

arguing "that pretext becomes evident

when one compares his skill ratings to

those of other agents. Guerrero contends

that he had comparable, and in some

areas, notably drug investigation, more

extensive and recent experience than

other agents, yet was rated lower." Id.

at 314. This court rejected Guerrero’s

invitation to reevaluate his credentials,

stating that "[w]e cannot second-guess

the appropriateness of this business

judgment," and holding that "we find no

evidence of pretext in them." Id. at 314-

15. Accordingly, we affirmed the grant of

summary judgment./2 Id. at 315.

On the surface there appears to be some

tension between the holdings of Lindale

and Guerrero, and those of Emmel and

Bell. But there is a clear distinction.

In Emmel and Bell there was additional

evidence of discrimination, whereas in

Lindale and Guerrero the plaintiff’s case

consisted solely of the competing

candidates’ comparative qualifications.

Perhaps because the facts did not require

it, neither Lindale nor Guerrero on the

one hand, nor Emmel nor Bell on the

other, pointed out that distinction. In

fact, these two lines of cases appear to

have developed independently, leaving

unanswered in this circuit the question

as to when evidence of comparative

qualifications constitutes sufficient

evidence to support a jury verdict of

discrimination. We thus look to our

sister circuits for guidance.

The Fifth Circuit in Deines v. Texas

Dept. of Protective and Regulatory

Services, 164 F.3d 277 (5th Cir. 1999),

reiterated that circuit’s general rule

that "differences in qualifications

between job candidates are generally not

probative evidence of discrimination

unless those differences are so favorable

to the plaintiff that there can be no

dispute among reasonable persons of

impartial judgment that the plaintiff was

clearly better qualified for the position

at issue." Id. at 279. The court

specifically held that the district court

did not err when instructing the jury

that "disparities in qualifications are

not enough in and of themselves to demon

strate discriminatory intent unless those

disparities are so apparent as to

virtually ’jump off the page and slap you

in the face.’" Id. The court further

explained that

apart from searching for discriminatory

intent, it is not the function of the

jury to scrutinize the employer’s

judgment as to who is best qualified to

fill the position; nor is it the jury’s

task to weigh the respective

qualifications of the applicants. Whether

the employer’s decision was the correct

one, or the fair one, or the best one is

not a question within the jury’s province

to decide. The single issue for the trier

of fact is whether the employer’s

selection of a particular applicant over

the plaintiff was motivated by

discrimination.

Id. See also, Celestine v. Petro de

Venezuella SA, 266 F.3d 343, 356-57 (5th

Cir. 2001); Scott v. University of

Mississippi, 148 F.3d 493, 508 (5th Cir.

1998); EEOC v. Louisiana Office of

Community Service, 47 F.3d 1438, 1445

(5th Cir. 1995); Odom v. Frank, 3 F.3d

839, 847 (5th Cir. 1993).

The Second, Tenth, Eleventh, and D.C.

Circuits have followed the Fifth

Circuit’s lead. For instance, in Byrnie

v. Town of Cromwell, 243 F.3d 93, 103 (2d

Cir. 2001), the Second Circuit held that

"when a plaintiff seeks to prevent

summary judgment on the strength of a

discrepancy in qualifications, . . . [i]n

effect, the plaintiff’s credentials would

have to be so superior to the credentials

of the person selected for the job that

’no reasonable person, in the exercise of

impartial judgment, could have chosen the

candidate selected over the plaintiff for

the job in question.’" Id. at 103

(quoting Deines, 164 F.3d at 280-81).

Similarly, in Lee v. GTE Florida, Inc.,

226 F.3d 1249 (11th Cir. 2000), the

Eleventh Circuit held that the "evidence

[was] insufficient to raise a genuine

issue of fact regarding whether [the

employer’s] stated reason for promoting

[the other candidate] instead of [the

plaintiff] is pretextual. None of

[plaintiff’s] proffered evidence

established that she was more qualified

than [the other candidate], let alone so

clearly more qualified for the position

than [plaintiff] that a reasonable juror

could infer discriminatory intent from

the comparison." Id. at 1255. See also,

Denney v. City of Albany, 247 F.3d 1172,

1187 (11th Cir. 2001) ("Our precedent,

however, requires a strong showing of a

disparity in qualifications in order for

an inference of discrimination to

arise."); Alexander v. Fulton County, 207

F.3d 1303, 1339 (11th Cir. 2000) ("In a

failure to promote case, however, a

plaintiff cannot prove pretext by simply

arguing or even by showing that he was

better qualified than the officer who

received the position he coveted.").

Likewise, in Simms v. Oklahoma ex rel.

Department of Mental Health and Substance

Abuse Services, 165 F.3d 1321 (10th Cir.

1999), the Tenth Circuit held that

"[w]hen two candidates are equally

qualified in that they both possess the

objective qualifications for the position

and neither is clearly better qualified,

it is within the employer’s discretion to

choose among them so long as the decision

is not based on unlawful criteria." Id.

at 1330. The D.C. Circuit adopted a

similar standard in Fischbach v. District

of Columbia Department of Corrections, 86

F.3d 1180 (D.C. Cir. 1996): "Evidence in

dicating that an employer misjudged an

employee’s performance or qualifications

is, of course, relevant to the question

whether its stated reason is a pretext

masking prohibited discrimination, if the

employer made an error too obvious to be

unintentional, perhaps it had an unlawful

motive for doing so." Id. at 1183

(internal citation omitted).

This standard--first set forth by the

Fifth Circuit, and since followed by four

other circuits--is appropriate.

Accordingly, we now hold that where an

employer’s proffered non-discriminatory

reason for its employment decision is

that it selected the most qualified

candidate, evidence of the applicants’

competing qualifications does not consti

tute evidence of pretext "unless those

differences are so favorable to the

plaintiff that there can be no dispute

among reasonable persons of impartial

judgment that the plaintiff was clearly

better qualified for the position at

issue." Deines, 164 F.3d at 279. In other

words, "[i]n effect, the plaintiff’s

credentials would have to be so superior

to the credentials of the person selected

for the job that ’no reasonable person,

in the exercise of impartial judgment,

could have chosen the candidate selected

over the plaintiff for the job in question.’"

Byrnie, 243 F.3d at 103 (quoting Deines,

164 F.3d at 280-81).

This makes sense because a court’s "role

is to prevent unlawful hiring practices,

not to act as a ’super personnel

department’ that second-guesses

employers’ business judgments." Simms,

165 F.3d at 1330. As we have stated,

"[n]o matter how medieval a firm’s

practices, no matter how high-handed its

decisional process, no matter how

mistaken the firm’s managers, [Title VII]

does not interfere." Mechnig v. Sears,

Roebuck & Co., 864 F.2d 1359, 1365 (7th

Cir. 1988) (internal quotation omitted).

Rather, this "court must respect the

employer’s unfettered discretion to

choose among qualified candidates."

Fischbach, 86 F.3d at 1183. If we were to

allow a jury to evaluate competing

credentials to determine whether the

employer’s assertion that it selected the

best candidate was pretextual, the jury

would in most cases be replacing the

employer’s personnel department. Yet

neither the judge nor the jury is "as

well suited by training and experience to

evaluate qualifications for high level

promotion in other disciplines as are

those persons who have trained and worked

for years in that field of endeavor for

which the applications under

consideration are being evaluated." Odom,

3 F.3d at 847.

This standard is also consistent with

our frequent admonitions "that a

plaintiff’s own opinions about her work

performance or qualifications do not

sufficiently cast doubt on the legitimacy

of her employer’s proffered reasons for

its employment actions." Ost v. West

Suburban Travelers Limousine, Inc., 88

F.3d 435 (7th Cir. 1996). Similarly, we

have held that mere "submission of

materials from a co-worker or supervisor

indicating that an employee’s performance

is satisfactory does not . . . create a

material issue of fact." Anderson v.

Baxter Healthcare Corp., 13 F.3d 1120,

1125 (7th Cir. 1994). A plaintiff’s

contention that he is the better

candidate for a vacancy constitutes

nothing but the employee’s own opinion as

to his qualifications. This cannot create

an issue of material fact because "[a]n

employee’s perception of his own

performance . . . cannot tell a

reasonable factfinder something about

what the employer believed about the

employee’s abilities." Olsen v. Marshall

& Ilsley Corp., 267 F.3d 597, 602 (7th

Cir. 2001). "And without proof of a lie

[as to what the employer believed] no

inference of discriminatory motive can be

drawn." Id.

Finally, this standard is consistent

with the plaintiff’s ultimate burden of

proof in discrimination cases. Such a

plaintiff cannot get to a "jury if his

only ’evidence’ had been that defendants’

witnesses were not worthy of belief. That

would have made it a no-evidence case,

and such a case a plaintiff must lose,

because he has the burden of proof."

Equal Employment Opportunity Commission

v. G-K-G, Inc., 39 F.3d 740, 746 (7th

Cir. 1994) (internal citations omitted).

Rather, "to avoid a directed verdict or a

JNOV, a plaintiff must do more than

merely argue that the jury might have

chosen to disbelieve all of the

defendant’s evidence. . . . A plaintiff

must offer substantial evidence to

support the argument." Perfetti v. First

National Bank of Chicago, 950 F.2d 449,

456 (7th Cir. 1991) (internal quotations

omitted). Thus, "[a] party cannot meet

its burden of proof ’by relying on the

hope that the jury will not trust the

credibility of the witnesses. . . .’" Id.

(internal citation omitted). Yet that is

exactly what Millbrook attempts; he seeks

to justify the jury verdict based on his

contention that the jury could have

disbelieved IBP’s assertion that it

selected Harris because of his superior

qualifications. However, without some

affirmative evidence calling into

question IBP’s credibility, Millbrook

must lose. See also, Fischbach, 86 F.3d

at 1183 ("Title VII liability cannot rest

solely upon a judge’s determination that

an employer misjudged the relative

qualifications of admittedly qualified

candidates."). Thus, to reconcile this

precedent, we must adopt the standard

that we have today--that comparative

qualifications do not support a finding

of pretext--or we would be allowing

plaintiffs to reach the jury based solely

on a claim that the employer cannot be

believed. We have consistently rejected

such claims. See, e.g., Massey v. Blue

Cross-Blue Shield of Illinois, 226 F.3d

922, 926 (7th Cir. 2000) ("It is always

possible, of course, that the jury might

have disbelieved everything [the

employer] said, but we routinely deny

summary judgments based on that kind of

hope, and consistency requires us also to

reject that possibility as a way of

saving the jury’s verdict.").

Applying this standard to the facts at

hand, we note initially that it is a

close question as to whether Millbrook’s

qualifications are equivalent to or

exceed those of Harris. While Millbrook

had a college education, his degree was

in an unrelated field, education, and

Harris had completed some college course

work in the relevant area of management.

Harris also had experience in quality

control, whereas Millbrook did not.

Harris’ tour of duty with the military is

also a credential highly valued by many

employers because of the discipline,

respect, work ethic, and many other

valuable virtues military service

instills. And, during his time with the

Air Force, Harris demonstrated his

communication skills, as documented by

his Communicator of the Year Award. IBP

explained that it sought out candidates

with such qualifications because Quality

Control Inspectors must possess superior

communication skills given the

confrontational nature of the position.

But, even assuming that Millbrook was

better qualified than Harris, his

credentials were not clearly superior,

and therefore a reasonable employer could

have concluded that Harris was the better

person for the job. Accordingly, a

comparison of the relative qualifications

of Millbrook and Harris is by itself not

probative of pretext./3

In sum, none of the evidence Millbrook

cites as evidence of pretext supports a

reasonable inference that IBP lied when

it explained its rationale for selecting

Harris--his superior qualifications./4

While Millbrook believes the jury should

be allowed to review the candidates’

relative qualifications to decide whether

or not IBP lied, without any evidence

calling into question IBP’s veracity,

what this case really comes down to is

the jury deciding which applicant is more

qualified. But believing or not believing

the decisionmaker is simply saying that

the employer made the wrong choice--which

is not illegal. Because there is no

evidence of pretext, Millbrook has failed

to create an inference that IBP

intentionally discriminated against him

by hiring Harris.

Moreover, even if we were to assume that

the above evidence constituted evidence

of pretext, under Reeves, that would not

end the inquiry. As Reeves made clear,

the existence of the prima facie case,

coupled with evidence of pretext, is not

always enough to satisfy the plaintiff’s

burden of proving intentional

discrimination. Rather, "an employer

would be entitled to judgment as a matter

of law . . . if the plaintiff created

only a weak issue of fact as to whether

the employer’s reason was untrue and

there was abundant and uncontroverted

independent evidence that no

discrimination had occurred." Reeves, 530

U.S. at 148.

In this case, assuming that Millbrook

presented evidence of pretext, at best he

"created only a weak issue of fact as to

whether the employer’s reason was

untrue." Id. There is absolutely no

other evidence of intentional discrimina

tion--not one racist comment, nor any

harassment. Millbrook admitted at trial

that no one at IBP made any comments

indicating that race played a factor in

its selection of Quality Control

Inspectors. In fact, of the 443 pages of

trial transcript, less than five full

pages focused on the selection of Harris

over Millbrook. In short, Millbrook has

no proof that IBP denied him a promotion

because of his race. The case he

presented is simply not enough under

Reeves to sustain a jury verdict in his

favor, even if some evidence of pretext

had existed.

In a final attempt to salvage a victory,

Millbrook points out that IBP has a

"Herculean burden" to overcome a jury

verdict. Gile v. United Airlines, Inc.,

213 F.3d 365, 372 (7th Cir. 2000). While

it is true that it is difficult to set

aside a jury verdict, our review of the

evidence is not a rubber stamp of a

jury’s decision. Notwithstanding this

standard of mythical proportions, we have

overturned jury verdicts in

discrimination cases very similar to the

case at hand.

For instance, in Shank v. Kelly-

Springfield Tire Company, 128 F.3d 474

(7th Cir. 1997), a jury returned a

verdict of age discrimination in favor of

Robert Shank, who sued his former

employer, Kelly-Springfield Tire Company,

after he was fired. Kelly-Springfield

maintained that it had fired Shank

because Shank had filed a fraudulent

claim for a refund in violation of

company policy. A jury, however, rejected

that explanation. Kelly-Springfield then

moved for judgment as a matter of law,

but the district court denied that

motion. On appeal, this court reversed,

concluding that Shank failed to present

sufficient evidence of age discrimination

to support the jury’s verdict.

Shank, like Millbrook, argued that the

jury could have inferred that Kelly-

Springfield fired him because of his age

if it disbelieved the company’s proffered

explanation for its employment decision.

Id. at 478. However, after reviewing the

evidence in its entirety, we concluded

that none of the evidence Shank presented

to demonstrate pretext called into

question the veracity of the company’s

explanation. Id. at 480. While Shank

argued that the jury could have inferred

that Kelly-Springfield had lied about its

reason for firing Shank, we concluded

that without some evidence supporting

that inference, a jury verdict could not

stand. Accordingly, we held that Kelly-

Springfield was entitled to judgment as a

matter of law. Id. Similarly, in this

case, without any evidence that IBP lied

about its reason for selecting Harris and

without any other evidence of

discrimination, IBP was entitled to

judgment as a matter of law.

Shank is just one of the many cases

where we have overturned a jury verdict

because of insufficient evidence,

demonstrating that the Herculean burden

of which we spoke does not protect

plaintiffs lacking in evidence. Shank,

128 F.3d 474. See also, Aungst v.

Westinghouse Electric Corp., 937 F.2d

1216 (7th Cir. 1991) (affirming district

court’s decision granting defendant

judgment as a matter of law because

plaintiff failed to present sufficient

evidence of pretext to sustain jury

verdict of age discrimination); Massey v.

Blue Cross-Blue Shield of Illinois, 226

F.3d 922 (7th Cir. 2000) (district court

properly granted defendant judgment as a

matter of law because plaintiff failed to

present sufficient evidence that

employer’s legitimate nondiscriminatory

reasons for her discharge--her poor

writing skills and inability to

investigate and follow through--were

pretextual)./5 As in these cases,

Millbrook failed to present sufficient

evidence of intentional discrimination,

and therefore the jury verdict cannot

stand.

III.

Hiring decisions are often difficult and

sometimes require companies to make close

calls, but those decisions are for the

employer to make--not the court and not

the jury--unless there is evidence of

illegal discrimination. In this case,

Millbrook presented absolutely no direct

evidence of race discrimination, and

while he attempted to rely on an

inference of discrimination by

challenging IBP’s explanation for its

selection of Harris, he failed to present

any evidence calling into question the

veracity of IBP’s explanation. While

Millbrook may believe he was more

qualified than Harris (indeed, even if he

were arguably the better choice), Title

VII is not a merit selection program.

Absent evidence that no reasonable

employer could believe that it selected

the best candidate, we will defer to the

employer’s decision. Because Millbrook

was not clearly more qualified than

Harris, their relative qualifications

cannot serve as a basis for sustaining

the jury’s verdict. Rather, we are left

with a case where there is no evidence of

intentional race discrimination, and

therefore IBP was entitled to judgment as

a matter of law. Because IBP was entitled

to judgment as a matter of law, Millbrook

was not entitled to any damages, much

less punitive damages, and the award of

attorney’s fees, costs, and instatement

also cannot stand. Accordingly, we

REVERSE.

FOOTNOTES

/1 Similarly, in Perdomo v. Browner, 67 F.3d 140

(7th Cir. 1995), upon which Bell relied, while

this court noted that a fact-finder could weigh

and balance the plaintiff’s credentials and

qualifications against those of the selected

candidate to determine whether the employer’s

claim that it hired the best candidate was pre-

textual, that case also involved additional

evidence of discrimination. Id. at 146.

/2 While Guerrero involved a grant of summary judg-

ment, as opposed to judgment as a matter of law,

that distinction is irrelevant because the stan-

dards mirror each other. Reeves, 530 U.S. at 150.

/3 See, e.g., Byrnie, 243 F.3d at 102-03 (while

plaintiff’s paper credentials were superior to

the chosen candidate’s, plaintiff’s credentials

were not so superior such that no reasonable

employer could have selected the candidate it

did); Lee, 226 F.3d at 1255 ("Since [plaintiff’s]

evidence at trial fell far short of establishing

that she was clearly more qualified for the

position than [the selected candidate, the plain-

tiff] did not meet her burden of establishing

that [the employer’s] proffered reason for deny-

ing her the promotion was a pretext for gender

discrimination."); Denney, 247 F.3d at 1187 ("Not

only do Plaintiffs fail to acknowledge this case

law, which makes clear that they ultimately must

do more to show pretext than prove that they were

better qualified than [the selected candidates],

but they also fail to make a persuasive showing

that they are, in fact, better qualified.");

Celestine, 266 F.3d at 357 ("A review of the

briefs and record excerpts reveals that none of

the [plaintiffs] presented competent summary

judgment evidence that they were ’clearly better

qualified’ for promotion or training. They there-

fore failed to even attempt to rebut [the employ-

er’s] proffered non-discriminatory explanation,

making the grant of summary judgment to [the

employer] proper."); Odom, 3 F.3d at 846-47

(district court’s finding that plaintiff was

"clearly better qualified" for position consti-

tuted clear error); Scott, 148 F.3d at 509 ("In

sum, we conclude that [the plaintiff’s] qualifi-

cations are not ’so superior’ to those of [the

chosen candidate] to allow an inference of pre-

text.") (internal quotation omitted).

/4 While Millbrook asserted four other evidential

theories of pretext beyond Harris and his rela-

tive qualifications, as discussed above, that

evidence failed to create a reasonable inference

that IBP lied when it explained why it hired

Harris. See supra at 8-11. Adding those four

pieces of evidence with the comparative qualifi-

cation evidence does nothing for Millbrook be-

cause the sum of many nothings is nothing. See

Holmberg v. Baxter Healthcare Corp., 901 F.2d

1387, 1391 (7th Cir. 1990) ("[T]he sum of four

nondiscriminatory episodes does not support [a]

case any more than viewing the four episodes sep-

arately.").

/5 Cf., Rand v. CF Indust. Inc., 42 F.3d 1139 (7th

Cir. 1994) (defendant-employer entitled to summa-

ry judgment because plaintiffs failed to present

sufficient evidence of pretext); Olsen v. Mar-

shall & Ilsley Corp., 267 F.3d 597 (7th Cir.

2001) (accord); Kuhn v. Ball State University, 78

F.3d 330 (7th Cir. 1996) (accord); Jordan v.

Summers, 205 F.3d 337 (7th Cir. 2000) (accord).

EVANS, Circuit Judge, dissenting. I respectfully

dissent. A jury listened to evidence of eight

instances in whichMillbrook failed to receive a

promotion. He claimed the rejections were because

of his race; the company contended that in each

instance the candidate promoted was better quali-

fied. A properly instructed jury looked at this

evidence and concluded, apparently, that in seven

of the cases Millbrook had not met his burden of

proof; the person promoted could be seen as

better qualified. In the eighth, the jury found

that discrimination was afoot. In this appeal of

that verdict, the issue, according to the majori-

ty, is whether Millbrook was so notably better

qualified than Harris that, absent other evi-

dence, the choice to hire Harris over promoting

Millbrook must have been discriminatory.

Discrimination today is rarely overt. Sometimes

it works underground. It is often very subtle. In

today’s environment, it is unfair to require

plaintiffs to produce smoking guns. So, in a case

like this, how much additional evidence are we

going to require to bolster the claim of a

marginally better, or at least equally qualified,

plaintiff who claims discrimination stopped him

from getting a promotion? And here, I question

whether it is fair to say that, in fact, there

was an absence of other evidence. The jury had a

broad view of the company’s actions as it related

to eight employment decisions, not just one. It

had evidence, for instance, that no African-

Americans were hired in relevant positions in a

2-year period during 1996 and 1997. I believe

that there was sufficient evidence to allow a

reasonable jury to conclude that overall the

company consistently chose the white candidate,

and that in the case of Harris (who, unlike the

other seven, may not have seemed to the jury to

be the better candidate), the company’s claim

that it picked the better candidate without

regard to race was a pretext to cover discrimina-

tory behavior.

During the course of a trial, jurors listen to

witnesses, pass judgment on their credibility,

and, in this kind of case, absorb something about

the culture of a company; they are pretty good at

bringing their common sense to bear on questions

of human behavior. This is what juries are for,

and in the close case, as this one indisputably

is, the jury’s judgment should be respected

unless no reasonable person could have found as

it did. And this jury, it seems, was so convinced

that racial discrimination prevented Millbrook

from getting the promotion that it tacked on, in

its discretion, an award of punitive damages.

Accordingly, I would not disturb the jury’s

verdict.