Grayson, Mickey R. v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

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No. 01-2001

MICKEY GRAYSON,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 558—John W. Darrah, Judge.

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SUBMITTED SEPTEMBER 19, 20021—DECIDED JANUARY 28, 2003

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Before CUDAHY, DIANE P. WOOD and WILLIAMS, Circuit

Judges.

CUDAHY, Circuit Judge. The plaintiff, Mickey Grayson,

appeals from a summary judgment entered against him

on his claims against the City of Chicago arising from

alleged employment discrimination. He claims race and

age discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII) and the Age Discrimination

in Employment Act of 1967 (ADEA). The District Court

1

The parties have waived oral argument in this case and thus

the appeal is submitted on the briefs and the record. See Fed. R.

App. P. 34(f).

2 No. 01-2001

held that Grayson did not establish a prima facie case of

discrimination and entered a judgment for the defendant

on March 20, 2001. Agreeing that Grayson has not estab-

lished a prima facie case of discrimination, we affirm.

I.

Mickey Grayson is an African-American man who was

born in 1944. In 1985, he was hired by the City of Chi-

cago as a carpenter in the Department of Public Works,

part of which later became the Department of Transpor-

tation (CDOT). In early 1995, CDOT posted three job

openings for which Grayson, then age 50, applied: General

Foreman of General Trades, General Foreman of Carpen-

ters and Foreman of Carpenters. At that time, Grayson had

been serving as a Sub-foreman of Carpenters (a position

identical in all but name to Foreman of Carpenters) for

about four years and had been working for the City of

Chicago for ten years. He had over twenty-five years

experience as a journeyman carpenter, as well as substan-

tial formal training and education. Grayson applied and

interviewed for, but did not get, any of the three positions.

Stan Kaderbek, Deputy Commissioner of the Depart-

ment of Transportation, Bureau of Bridges, hired three

younger, white candidates instead of Grayson. According

to Grayson and other witnesses, Grayson was better quali-

fied, had more training and education and had more

seniority than some or all of the men selected for the

jobs. However, as both parties acknowledge, the decision

really came down to one criterion: “quality and relevance

of previous job experience.” All three men chosen in place

of Grayson were, at the time of the job posting, working

in the positions for which they sought formal designation.

Thus, the Acting General Foreman of General Trades suc-

cessfully sought to become the General Foreman of Gen-

eral Trades, the Acting General Foreman of Carpenters suc-

No. 01-2001 3

cessfully sought to become the General Foreman of Car-

penters and the Acting Foreman of Carpenters success-

fully sought to become the Foreman of Carpenters. Mark

Fornaciari, Ron Biamonte and Mike Brubaker had been

working in the respective “Acting” positions for more than,

respectively, two, three and four years.

Although he had no direct evidence that Kaderbek

had improperly taken into account factors such as race

or age in his decisionmaking, Grayson sued the City

of Chicago for discrimination under Title VII and the

ADEA, proceeding under the burden-shifting mechanism

of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The district court granted summary judgment for the

defendant. The trial judge found that, with respect to his

rejected application for the Foreman of Carpenters posi-

tion, Grayson had suffered no adverse employment action,

since the requested position was identical to his present

position in all but name. With respect to his application

for the other two positions, the trial court ruled that

Grayson was not similarly situated to the applicants who

received the promotions because he had not attained their

level of experience. The district court also found that, even

if Grayson had presented a prima facie case, the defen-

dant had offered a nondiscriminatory reason for its hir-

ing decisions—the other candidates’ experience. However

imperfect Kaderbek’s hiring system may be, Grayson failed

to show that the City of Chicago’s stated reasons for re-

jecting him were pretextual.

Grayson appeals several aspects of the trial court deci-

sion. First, he argues that a difference in title alone can

be the basis of an adverse employment action, and asks

us to reconsider the promotion of Brubaker to Foreman

of Carpenters. He then says that the basis on which

Kaderbek made his decisions was pretextual when consid-

ered with other evidence, such as the extent of Grayson’s

experience, his seniority and a provision in the Collective

4 No. 01-2001

Bargaining Agreement giving preference in promotions to

employees with greater seniority. Finally, he complains

that by basing its promotion decisions on the outcomes

of earlier promotions of individuals to interim positions,

appointments unlikely to have resulted in legal action,

CDOT improperly protects the earlier decisionmaker

and thereby shields discriminatory acts from legal attack.

II.

Grayson has no direct evidence of discrimination and

so proceeds under the burden-shifting mechanism of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under the McDonnell Douglas framework, a prima facia

case of employment discrimination creates a rebuttable

presumption that the employer’s actions, if unexplained,

were the result of impermissible factors and shifts the

burden of production to the employer to articulate some

legitimate, nondiscriminatory reason for its actions. If

the employer satisfies that burden, the plaintiff must

then show that these articulated reasons are pretextual.

Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1261

(7th Cir. 1993).

In order to establish a prima facie case in a failure-to-

promote context, the plaintiff must show that 1) he be-

longs to a protected class, 2) he applied for and was quali-

fied for the position sought, 3) he was rejected for that

position and 4) the employer granted the promotion to

someone outside of the protected group who was not bet-

ter qualified than the plaintiff. See, e.g., Johnson v.

Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001), cert.

denied 122 S. Ct. 1299 (2002). The defendant points out

that implicit in the third element, rejection, is the re-

quirement, in all discrimination actions, that the rejec-

tion constitute a “materially adverse employment action.”

See Ribando v. United Airlines, Inc., 200 F.3d 507, 510

No. 01-2001 5

(7th Cir. 1999). For the reasons given below, we believe

that, with respect to the General Foreman of General

Trades and General Foreman of Carpenters positions,

Grayson fails on the fourth element of his prima facie

case, and that, with respect to the Foreman of Carpenters

position, Grayson fails on the third element.

As Grayson failed to make out a prima facie case of

discrimination, we do not reach the question whether

Grayson showed as pretextual Kaderbek’s reasons for hir-

ing others instead of Grayson for the three given posi-

tions. We note simply that we believe Kaderbek’s rea-

sons not pretextual, suggesting that Grayson’s case would

fail even if he could successfully claim a prima facie

case. In particular, Grayson’s primary evidence of pretext,

Kaderbek’s alleged disregard of the seniority considera-

tions of the promotion procedure specified in the Collective

Bargaining Agreement,2 simply does not come into play

if Kaderbek did not believe the applicants to be “rela-

tively equally qualified.” We will, however, briefly ad-

dress Grayson’s charge that the system of promotions

at CDOT promotes discrimination by cloaking the true de-

cisionmaker.

We review de novo a grant of summary judgment, re-

viewing the record and the inferences drawn from it

in the light most favorable to the nonmoving party.

Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.

1994).

2

Section 14.8 of the Collective Bargaining Agreement states

in part: “The Employer shall select the most qualified appli-

cant. . . . Where bargaining unit applicants are relatively equally

qualified the Employer shall select the most senior employee

of those who apply.”

6 No. 01-2001

A.

Grayson has failed to make out a prima facie case against

the City of Chicago. We consider separately his case

with respect to the General Foreman of General Trades

and General Foreman of Carpenters positions and his case

with respect to the Foreman of Carpenters position.

1.

In order to meet the fourth element of his prima facie

case, Grayson needed to show that he was as qualified as

Fornaciari and Biamonte for the positions of General

Foreman of General Trades and General Foreman of

Carpenters respectively. However, we have held that

persons who do not have the same or equivalent posi-

tions are not similarly situated with respect to a potential

promotion. Hoffman-Dombrowski v. Arlington Int’l Race-

course, Inc., 254 F.3d 644, 651 (7th Cir. 2001). Prior to

his promotion, Fornaciari had been serving as Acting

General Foreman of General Trades for more than two

years. In that capacity, he was responsible for “coordinat-

ing the work of twelve different trades, supervising the

order of materials and supplies for all of those trades,

and supervising the implementation of a progressive dis-

cipline program for all of the employees in those trades.”

Def. City of Chicago’s Rule 12(m) Statement of Undis-

puted Material Facts in Supp. of City of Chicago’s Mot.

for Summ. J. (City of Chicago Rule 12(m) Statement), para.

15. Biamonte had been serving as the Acting General

Foreman of Carpenters for over three years. He “coordi-

nated the work of nine to ten full crews of carpenters,

supervised the subforemen for each of the crews, and served

as the first level of review in the implementation of a

progressive discipline program for all the employees in

the crews.” City of Chicago Rule 12(m) Statement, para. 16.

No. 01-2001 7

While Grayson did allege that he was as qualified

as Fornaciari and Biamonte, see Second Am. Compl.,

paras. 14, 19, Grayson Aff., paras. 31, 41, 46, Grayson did

not show that he has held equivalently demanding posi-

tions or has had job experience comparable to the suc-

cessful applicants. Grayson’s experience as a Sub-fore-

man of Carpenters is not equivalent to the experience

Fornaciari and Biamonte have had in serving on an acting

basis in the very positions to which they have been pro-

moted. Grayson therefore has not met the fourth element

of his prima facie case, justifying summary judgment

against him. Alternatively, we believe that even if Gray-

son had made out a prima facie case, the City of Chicago’s

reason for promoting Fornaciari and Biamonte, that they

were serving in the acting positions, was a legally suffi-

cient reason that Grayson has not shown to be pretextual.

2.

With respect to the Foreman of Carpenters position,

Grayson can easily show that he was similarly situated

to Brubaker. Both Grayson and Brubaker were serving

in positions identical in all but name to Foreman of Car-

penters: Brubaker was Acting Foreman of Carpenters

and Grayson was Sub-foreman of Carpenters. For a close-

ly related reason, however, Grayson’s case fails. Because

Grayson’s position at the time of the hiring decisions

was identical in all but title to the position that he

was denied, the rejection of his application for promo-

tion was not a materially adverse employment action.

Grayson argues that, under Crady v. Liberty National

Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.

1993), rejection of a change in job title alone is a mate-

rially adverse employment action. We do not agree. While

Crady does say that “a less distinguished title” could

indicate an adverse employment action, it goes on to

8 No. 01-2001

hold that the loss of an “Assistant Vice President” title,

when similar responsibilities and identical salary and

benefits are retained, does not constitute an adverse

employment action. Id. Grayson acknowledges that in all

respects other than title—including responsibilities, sal-

ary and benefits—the Sub-foreman position is equivalent

to the Foreman position. The district court held that

this equivalence means that Grayson’s being passed over

for what was only a loftier title was not a materially

adverse employment action. We must agree. See also

Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002)

(holding that an employee cannot establish an adverse

action on the basis that a reassignment deprives him of

prestige).

This is not to say, however, that the loss of a title may

not prove more significant in other discrimination contexts.

For example, Grayson argues that a difference in title

may result in different job promotion opportunities. In-

deed, Grayson has already faced an instance where his

being the Sub-foreman, rather than the Acting Foreman,

apparently resulted in another employee’s getting the

Foreman position. But there was no materially adverse

employment action in the present situation precisely

because all three differently titled positions are essen-

tially identical. However, should there be in the future

a possible promotion to a clearly higher (with higher

responsibilities, salary or benefits) position open to both a

Foreman and to a Sub-foreman, an actual promotion, it

might well be suspicious if CDOT were to promote based

on which one of the two identical positions the applicant

held. Such a basis (title only) for promotion would not

only be likely to allow a potential plaintiff to meet the

fourth element of his prima facie discrimination case—

according to Hoffman-Dombrowski, candidates in “equiva-

lent positions” are similarly situated—but would also

hint that the earlier denial of a promotion was actually

No. 01-2001 9

a materially adverse employment action. That is, if the

City of Chicago has a habit of distinguishing between

promotion candidates in equivalent but differently titled

positions, title alone may be more significant than it

appears to be here. In the absence of such a scenario,

however—after all, Grayson actually was promoted to

Foreman just a year after the events described in this

lawsuit—there is no materially adverse employment action.

There is, however, at least one suggestion that the City

of Chicago would place such reliance on title alone. Appar-

ently arguing that Grayson does not meet the fourth

element of his prima facie case with respect to the Fore-

man of Carpenters position, the City of Chicago’s appel-

late brief states that “[u]nlike Grayson[,]” Brubaker

“had several years of experience serving in the very posi-

tion[ ] to which [he] was promoted.” Appellee’s Br. at 24.

But since the City of Chicago also argues that the Sub-

foreman’s and the Foreman’s duties are equivalent, id.

at 19-20, the City’s contention is insupportable. The city

cannot have it both ways. With respect to the Foreman

of Carpenters position, Kaderbek should have resorted

to other criteria; the fact that Brubaker was Acting Fore-

man of Carpenters had no significance when Grayson had

experience in an equivalent position. The rating forms

used in evaluating the candidates, however, show that

Brubaker, for whatever reason, scored higher than Grayson.

Whether this higher score would defeat Grayson’s claim

that he was similarly situated to Brubaker or provide

a nondiscriminatory reason that Grayson would have

had to show to be pretextual, it would likely be enough to

defeat Grayson’s discrimination suit, even if we were to

have held that this rejection was a materially adverse

employment action. As we noted above, the fact that

the promotion from Sub-foreman to Foreman of Carpen-

ters is not material defeats Grayson’s claim altogether.

10 No. 01-2001

B.

Grayson in his briefs passionately asks us to consider

a hypothetical: What if the acting position assignments

were made based on experience gained through interim

assignments which were in turn made on a discrimina-

tory basis? Because the interim assignments were tempo-

rary and not accompanied by higher pay, the person

discriminated against may not have had a legal basis or

a practical occasion to press a lawsuit. But the victim

may discover later that he has been defeated by a dis-

criminatory series of personnel actions that effectively

cloaked the identity of the decisionmaker. Grayson in-

sinuates that Kaderbek’s status quo-maintaining hiring

pattern acts to perpetuate discrimination that took place

in an earlier stage of the employment relationship. How-

ever, Grayson’s concern that such a belated discovery of

an earlier discrimination in a series of actions would

have no effective remedy (due to the operation of the stat-

ute of limitations), Appellant’s Reply Br. at 6, is not well-

founded. At the very least, such a plaintiff would have

the opportunity to plead his set of apparently related

actions and ask us to treat this series as a continuing

violation or perhaps request equitable tolling. See gen-

erally CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 992-93

(7th Cir. 2002) (describing the continuing violation doc-

trine as applied to Title VII actions and the require-

ments of the equitable tolling doctrine). Grayson has not

presented any evidence that his hypothetical has in fact

occurred, nor did he raise this theory before the EEOC or

the district court. This argument, therefore, has been

waived. See, e.g., Perry v. Sullivan, 207 F.3d 379, 383 (7th

Cir. 2000) (noting that arguments raised for the first

time on appeal are routinely deemed waived); Cheek v. W.

& S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (hold-

ing that there has to be “a reasonable relationship” be-

tween the allegations of an EEOC charge and the claims

contained in a complaint).

No. 01-2001 11

III.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-28-03