EEOC v. Target Corporation

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3559

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

v.

TARGET CORPORATION,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 C 0146—Rudolph T. Randa, Chief Judge.

____________

ARGUED SEPTEMBER 20, 2005—DECIDED AUGUST 23, 2006

____________

Before CUDAHY, KANNE, and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge. The Equal Employment and

Opportunity Commission (EEOC) filed a Complaint against

Target Corporation (Target) in the district court

on February 8, 2002. The EEOC charged that Target

violated Title VII of the Civil Rights Act of 1964 (The Act),

42 U.S.C. § 2000e et seq., by engaging in race discrimination

against African-American applicants for managerial

positions. The EEOC also alleged that Target violated the

Act when it failed to make and preserve records relevant to

the determination whether unlawful employment practices

had been, or were being, committed. On July 1, 2003, both

parties brought motions for summary judgment. On August

2 No. 04-3559

2, 2004, the district court denied the EEOC’s motion,

granted Target’s motion in its entirety, and dismissed the

action. The EEOC now appeals. We reverse and remand for

further proceedings.

I. Background

A. Target’s Structure

Target Corporation is headquartered in Minneapolis,

Minnesota. One of its retail divisions is Target, a discount

chain of more than 1,100 stores nationwide. Target orga-

nizes its operations by Groups, and the Groups are divided

into districts. This case involves District 110 in Group 192.

Group 192 is made up of Target Districts in several south-

ern Wisconsin and northern Illinois counties. District 110

is made up of stores in the Madison, Milwaukee, and

Waukesha, Wisconsin metropolitan areas.

Each district is managed by a District Team Leader, and

each store is managed by a Store Team Leader (STL), who

is assisted by Executive Team Leaders (ETLs). Each ETL is

responsible for a different area of store operation. Most

stores have the following ETLs: a Guest Services ETL, who

manages the front end of the store, including cashiers and

returns; a Hardlines ETL, who manages the dry goods

section of the store; a Softlines ETL, who manages the

clothing and jewelry section of the store; a Team Relations

ETL, who manages the store’s human resources functions;

and a Logistics ETL, who manages the stockroom of the

store.

B. Hiring Process for ETLs

In the first step of the ETL hiring process, Target pre-

screens applicants to determine if they meet the minimum

qualifications for the position. Target does not specify the

No. 04-3559 3

credentials an applicant must have to pass the pre-screen-

ing, but factors such as education, professional experience

and retail-related experience are considered. Target also

generally requires that an applicant have either a college

degree or significant management experience. If the

recruiter determines that an applicant meets Target’s

minimum standards for an ETL position, the recruiter

will contact the applicant to schedule an initial interview.

This interview is usually conducted by telephone, but

may take place at a Target store. During this interview,

each applicant is asked the same or similar questions,

which are designed to determine if the applicant meets

the minimum standards for an ETL position.

Before February of 2001, applicants who performed

well in the initial interview were invited to attend an

“ELITE” interview. The ELITE interview procedure had two

parts: first, a written test called a PDI, and second, three

rounds of one-on-one personal interviews. Target restruc-

tured this procedure in 2001.

The PDI is a standardized multiple-choice test that is

used to evaluate the leadership ability of applicants. Target

does not look at the actual score an applicant receives, but

instead assigns the applicant a color code, which indicates

a range in which the applicant scored. A green score

indicates that the applicant scored well, a yellow score

indicates an applicant obtained a satisfactory score and a

red score indicates an applicant scored poorly. Target

claims that a green or yellow score is a prerequisite for an

applicant’s hiring, but such a score does not guarantee

employment.

An applicant’s performance in the interview round is

weighted more heavily than the PDI test performance.

During the ELITE interview round, Target executives

perform one-on-one interviews with applicants. The execu-

tives use an interview guide which contains questions that

4 No. 04-3559

are designed to evaluate the applicants’ leadership abilities.

All applicants are asked the same questions. The appli-

cants’ answers are scored using set guidelines. The inter-

viewers then assign a total score for each applicant.

After the one-on-one interviews are completed, the

interviewers have a consensus meeting to discuss all

applicants. Target claims that the total scores of the

applicants are used only as a guide in hiring and that

applicant’s scores are not directly compared. Thus, the

interviewers may choose to hire an applicant who had a

total score that was lower than another applicant not

chosen.

C. Individual Claims—Charging Parties

This case involves a group of individuals who claim that

they were not hired in Target’s ETL hiring process because

of their race. First, in early 2000, James Daniels, Jr., an

African-American, applied to Target for an ETL position

in District 110. He interviewed for an ETL position on

March 13, 2000. Daniels did very well on his PDI test,

scoring higher than ninety-seven percent of the candidate

norm group. Target did not hire Daniels. Target claimed he

did not meet the requirements for an ETL position based on

his ELITE interview, but did not produce the ELITE

interview forms for Daniels and did not explain how he

failed to meet those requirements.

The claims of the three other individuals in this case,

Kalisha White, Ralpheal Edgeston and Cherise Brown-

Easley involve their contact with STL Matthew Armiger.

Before February of 2001, District 110 had a district re-

cruiter. When the district recruiter position was eliminated,

STL Richard Walters, who was temporarily assigned

recruiting duties, asked fellow STL Armiger for help with

those duties. At that time, Armiger was managing a newly-

opened and short-staffed Target store in New Berlin,

No. 04-3559 5

Wisconsin. Walters and Armiger initially shared the

recruiting duties equally, but later Armiger’s duties were

scaled back. Armiger testified that he believed his recruit-

ing duties were secondary to his management of the store.

1. Kalisha White

Kalisha White, an African-American who attended

Marquette University, emailed Target her resume for an

ETL position on February 20, 2001, while she was still a

student at Marquette. White’s resume indicated that

she was a member of Alpha Kappa Alpha, an African-

American sorority. Armiger e-mailed White and asked her

to call to set up an interview. White called at least twice,

but each time she spoke with Armiger he said he was too

busy to schedule an interview.

White became suspicious of Armiger and decided to

conduct an experiment to determine if he had discriminated

against her because of her race. Thus, on May 9, 2001, she

submitted a resume to Armiger under a fictitious name,

“Sarah Brucker.” White used her own telephone number,

and gave Brucker a Brookfield, Wisconsin, address. She

believed the address was located in a predominantly

Caucasian neighborhood. Armiger testified that White had

a stronger resume than Brucker because White was pursu-

ing an MBA degree, while Brucker was not. On May 10,

2001, Armiger emailed and called Brucker, asking her to

return his call. White had a Caucasian acquaintance call

Armiger and pretend to be Sarah Brucker. Armiger sched-

uled an interview with Brucker during their conversation.

White testified that she called Armiger soon after Brucker’s

conversation with him, but he said that he was too busy to

schedule an interview with her.

6 No. 04-3559

2. Ralpheal Edgeston

Ralpheal Edgeston received an email from Armiger on

March 2, 2001, in which Armiger asked her to call and

schedule an interview. Edgeston, an African-American

student at Marquette University, had submitted her resume

to Target for an ETL position at a multicultural job fair

held at the University of Wisconsin-Milwaukee in the

previous month. Edgeston’s resume indicated that one

of her college majors was African-American studies and,

like Kalisha White’s resume, that she was a member of the

Alpha Kappa Alpha sorority, which Armiger testified to

knowing was an African-American sorority. Additionally,

her resume listed that she was a member of the National

Association for the Advancement of Colored People

(NAACP). Edgeston called Armiger and scheduled a phone

interview for March 4, 2001; however, Armiger did not

call Edgeston at the appointed time and did not return

her calls after that date. Target never scheduled another

interview with Edgeston.

3. Cherise Brown-Easley

Class member Cherise Brown-Easley, an African-Ameri-

can, also submitted her resume to Target at the Univer-

sity of Wisconsin-Milwaukee multicultural job fair in

February 2001. Brown-Easley’s resume indicated that

she was a member of the “Metropolitan Alliance of Black

School Educators.” Brown-Easley received an email from

Armiger requesting that she call Armiger to schedule

an interview. She called Armiger and scheduled an inter-

view for March 4, 2001. Armiger did not contact Brown-

Easley at the appointed time. Instead, Brown-Easley called

Armiger a half hour after the interview time, and after

being informed that he had left for the day, she left a

message for him. The following day, she left another

message for Armiger, but she never heard back from him.

No. 04-3559 7

During the week that Armiger failed to contact Edgeston

and Brown-Easley, he was scheduled to interview nine ETL

applicants. In addition to Edgeston and Brown-Easley,

Armiger also failed to contact two Caucasian applicants.

However, Target later interviewed at least one of the two

Caucasian applicants, but Edgeston and Brown-Easley were

never interviewed.

Armiger testified that he did not know the race of

White, Edgeston, or Brown-Easley during the recruiting

process. Armiger could not recall reviewing White or Brown-

Easley’s resumes. He also claimed he did not study

Edgeston’s resume closely enough to determine her race.

D. Target’s Record Retention

Also at issue in this appeal is Target’s practice of employ-

ment record retention. During the spring of 2001, Store

Team Leader Walters estimated that he received

200 resumes for ETL positions, and that Armiger re-

viewed thirty percent of them, or about sixty resumes. In

the fall, slightly fewer resumes were submitted, and in

other months, about ten to twenty-five resumes were

submitted each month. Armiger admitted to throwing out

the resumes of applicants he deemed unqualified, including

those of White, Edgeston and Brown-Easley, rather than

retaining them as required by law and by Target’s docu-

ment retention policy. Armiger claims he threw out the

resumes to protect the applicants’ privacy.

In an effort to comply with the EEOC’s document reten-

tion requirement, Target currently uses Brass Ring, a

nationwide employment recruitment website, to store

applicant documents, including: copies of applicants’

resumes, applicants’ PDI test results and completed ELITE

interview forms. Target recruiters who receive the resumes

submit them to Brass Ring and make copies of the resumes

of the candidates they plan to interview. The Brass Ring

8 No. 04-3559

system does not store information regarding the district

where the applicant applied or whether the position applied

for was an ETL position.

Target also has several policies to ensure that job applica-

tions and related documents are retained for the required

time. Target uses its corporate intranet and email messages

to share its record retention policies with STLs. The human

resource managers meet biannually to audit each Target

store, to conduct training and to remind employees of the

record retention policy. The human resource managers

instruct on-campus recruiters to retain all resumes, applica-

tions and interview guides and notes, and to route the

documents to the national headquarters. Finally, the ETL

for Team Relations is responsible for ensuring that the

record keeping policy is being followed at each Target store.

The success of Target’s record retention program through

Brass Ring has been disputed. There is some indication that

all employees are not following the program. As discussed

above, STL Armiger threw out resumes that he should have

retained. Additionally, Virginia Schomisch, the District

Team Leader’s administrative assistant, testified in June of

2003 that she does not send applicant documents to Brass

Ring, but instead she retains them herself for the required

time. According to Target, the recruiters who send docu-

ments to Schomisch also send them to Brass Ring. While

Target’s policy does not include a provision to ensure that

relevant documents are retained from the time a discrimi-

nation charge is filed until that case is fully concluded,

Target claims to address this requirement on a case by case

basis, notifying employees to retain documents when a

charge arises.

E. The EEOC’s Investigation

On May 11, 2001, White and Edgeston filed EEOC

discrimination charges against Target. White alleged that

No. 04-3559 9

Target had discriminated against her and black applicants

as a class by not considering them for ETL positions.

Edgeston’s charge alleged that Target had discriminated

against her because of her race.

The EEOC investigated the applicants’ claims against

Target. The EEOC issued a letter of determination for

White and Edgeston’s charges on September 13, 2001,

finding reasonable cause to believe Target had discrimi-

nated against the applicants on the basis of their race. The

EEOC also issued a letter of determination for a charge

filed by Keith Stanley on January 8, 2001. Stanley’s claim

is not at issue in this appeal. The EEOC alleged that Target

discriminated against the African-American applicants

based on their race by refusing to hire them for ETL

positions in District 110 since March 14, 2000.

The EEOC also alleged that since at least March 14, 2000,

Target has violated Section 709(c) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-8(c), by failing to

make and preserve records relevant to the determination of

whether Target is or has engaged in unlawful employment

practices.

The EEOC attempted to facilitate a conciliation between

Target and the applicants, but after four months of negotia-

tions, they were unable to reach an agreement. The EEOC

then filed its complaint in this lawsuit.

F. District Court’s Action & Findings

At the district court, Target moved for summary judgment

on the EEOC’s complaint. The EEOC moved for partial

summary judgment on its records retention violation claim

and on the other affirmative defenses that Target asserted.

The district court issued its Decision and Order on August

2, 2004. The court denied the EEOC’s motion for partial

10 No. 04-3559

summary judgment on its records retention violation claim

and granted Target’s motion for summary judgment on this

issue. The court found that Target’s new Brass Ring

program complied with the law, so an injunction (which the

court noted was the only available remedy for such a claim)

was unnecessary. The court also held that, although Target

could not produce the recruitment records, the EEOC was

not entitled to an inference that the documents would have

contained information adverse to Target’s case because the

EEOC did not present evidence that Target employees

disposed of the documents in bad faith.

The court granted Target’s motion for summary judgment

on the EEOC’s Title VII disparate treatment claims, and

denied the EEOC’s motion on these claims. The court found

that Armiger’s failure to respond to applicants White,

Edgeston and Brown-Easley was explained by the fact that

he was busy managing his store. Therefore, according to the

court, Target met its burden of producing a legitimate

nondiscriminatory reason for its actions, as required by the

McDonnell Douglas test, and the burden shifted back to the

EEOC. Since the EEOC did not, in the district court’s

opinion, show that Target’s proffered reason was a pretext

for an actual discriminatory reason, the court granted

Target’s motion for summary judgment. In the district

court, Daniels was an unnamed class member. With respect

to his claim, as well as others, the court found that the

EEOC failed to show that Target’s reason for not hiring him

was merely a pretext for discrimination.

II. Discussion

A. Record Retention

The district court denied the EEOC’s motion for summary

judgment and granted Target’s cross motion for summary

judgment. The district court found that the only possible

remedy in this situation, a violation of 42 U.S.C. § 2000e-

No. 04-3559 11

8(c), is injunctive relief. We review a district court’s grant of

summary judgment de novo, thus we review de novo the

conclusion that an injunction was not necessary to prevent

Target from violating the EEOC’s record keeping regula-

tions in the future. See United States v. Raymond, 228 F.3d

804, 810-11 (7th Cir. 2000), cert. denied, 533 U.S. 902 (2001)

(reviewing de novo the grant of a permanent injunction in

the context of summary judgment). Summary judgment

should only be granted if the record shows that there is no

genuine issue of any material fact. Fed. R. Civ. P. 56(c).

When making such a determination a court must draw all

reasonable inferences in favor of the non-moving party.

Raymond, 228 F.3d at 810.

1. Brass Ring

Under Title VII, employers are required to “make and

keep such records relevant to the determinations of whether

unlawful employment practices have been or are being

committed.” 42 U.S.C. § 2000e-8(c). The EEOC’s record

keeping regulations require that employers retain applica-

tions and other documents related to hiring for one year. 29

C.F.R. § 1602.14. Additionally, if a charge of discrimination

has been filed, an employer is required to retain all relevant

personnel records until the final disposition of the charge.

Id.

On appeal, the EEOC contends that the district court

erred when it denied its motion for summary judgment

on Target’s record keeping violations and when it granted

Target’s motion for summary judgment on that same claim.

We find that the district court erred in concluding that no

genuine issue of material fact existed as to whether an

injunction is necessary to correct Target’s record keeping

violations.

While we agree that Target has put forth evidence that it

has revised its record retention policies in an effort to

12 No. 04-3559

comply with Title VII, we do not agree that such changes

ensure “on [their] face” that Target will not commit fur-

ther violations. See Equal Employment Opportunity

Comm’n v. Target Corp., No. 02-C-0146, slip op. at 11 (E.D.

Wis. 2004). The reforms chosen do not address the particu-

lar problems that allowed violations to occur. Individual

recruiters and administrative personnel destroyed records

that were supposed to be retained because they did not

know that they must retain them. In support of these

allegations, the EEOC invoked the testimony of Virginia

Schomisch, the person responsible for retaining employ-

ment documents for all of Target’s District 110 applicants,

who said that she did not know that she was required to

retain an applicant’s documents for more than one year

if that applicant files a charge with the EEOC. Additionally,

Armiger failed to retain the records of the individual

claimants in this suit and admitted that he destroyed

records that should have been retained.

Assuming that Armiger did not destroy employment

documents in bad faith, his claim that he did not know

he needed to retain these documents is problematic. Tar-

get’s old record keeping policy consisted of informing STL

Richard Walters that he needed to retain documents and of

conducting annual personnel file audits. Target claims that

it has mitigated the risk of untrained personnel destroying

documents by reiterating its policy on retention in emails to

STLs, biannual audits and communication through ETLs in

charge of compliance. A reasonable finder of fact could

conclude, however, that Target’s new policy of retention is

not substantially different from the old policy. Since Target

claims that its old policy could have allowed Armiger to

recruit without knowing that he must retain recruitment

documents, a reasonable fact finder could conclude that its

new policy likewise will not prevent recruiters from being

ill-informed. While Target has assigned ETLs for Team

Relations to ensure that each store is retaining documents

No. 04-3559 13

(either onsite or with Brass Ring) in compliance with

Target’s record keeping policy, a reasonable finder of

fact might question whether this assignment will be

sufficient if, for example, an STL (an ETL’s superior) is

assigned to help with recruiting in the same way that

Armiger was assigned in early 2001. Thus, we find there is

a genuine question of material fact as to whether Brass

Ring has truly reformed Target’s record retention policy

in such a way as to ensure that violations will not continue.

2. Bad Faith

The EEOC claims that Armiger knew that he was sup-

posed to retain the application documents of Cherise

Brown-Easley, Kalisha White and Ralpheal Edgeston but

did not do so, and that this knowing failure is evidence of

bad faith document destruction. Upper level managers were

told numerous times to retain resumes and employment

documents, and indeed, Dawne Carlson, the Regional

Human Resources Manager for District 110, testified that

Armiger should have known better than to destroy resumes.

Target argues that, just because Armiger should have

known better than to destroy resumes, does not mean that

he did know better, but this only underscores that this is a

genuine issue of material fact to be resolved at trial. It is

disputed whether or not Armiger knew not to destroy

resumes, but if he did know better and destroyed the

resumes nonetheless, a reasonable fact finder could infer

that he did so for a dishonest reason and in bad faith. The

record evidence does not provide enough information for the

question of bad faith to be resolved, but viewing all evidence

in the light most favorable to the EEOC, there is certainly

a genuine issue of material fact as to whether Armiger

destroyed the resumes in bad faith.

If Armiger did destroy the documents in bad faith, it

underscores the necessity for there to be further investiga-

14 No. 04-3559

tion into whether an injunction is necessary to prevent

further acts of bad faith by other Target employees. If

Target did not sufficiently prevent bad faith destruction of

employment documents in the past, it should adopt some

policy to prevent their destruction in the future. United

States v. Di Mucci, 879 F.2d 1488, 1498 (7th Cir. 1989)

(court should consider whether violations have effectively

discontinued when deciding whether to grant injunctive

relief in a discrimination case).

Nothing in Target’s new record keeping policy clearly

prevents bad faith destruction of resumes or other employ-

ment application documents. Target’s new policy involves

reiterating its procedures for retaining documents to its

store managers and recruiters and outsourcing the physical

storage of employment documents. Similar to Target’s

document retention polices prior to 2001, Target depends

greatly on the diligence of the company’s recruiters and

its managerial personnel to ensure that resumes, applica-

tions and interview guides are retained because these

personnel must forward the original documents to Brass

Ring. Target has not claimed that it has adopted a system

of penalties for failure to forward documents or in any other

way provided new incentives to ensure compliance with the

EEOC’s record keeping requirements.

Because these genuine issues of fact bear on whether

Target’s new record retention policy is sufficient to prevent

future violations of federal law, Target’s motion for sum-

mary judgment on this issue should not have been granted.

Consequently, we reverse and remand for fur-

ther proceedings.

B. Title VII Disparate Treatment Claims

We review the district court’s grant of summary judgment

on the disparate treatment claims de novo, and consider all

evidence in the record, and all reasonable inferences from

No. 04-3559 15

that record, in the light most favorable to the nonmoving

party. Vakharia v. Swedish Covenant Hosp., 190 F.3d 799,

805 (7th Cir. 1999). We affirm summary judgment only if

the evidence presented does not raise any genuine issue of

material fact. Fed.R.Civ.P. 56(c); Farrell v. Butler Univer-

sity, 421 F.3d 609, 612 (7th Cir. 2005). The EEOC contends,

and we agree, that the district court improperly granted

summary judgment in favor of Target on the disparate

treatment claims on behalf of James Daniels, Jr., Kalisha

White, Ralpheal Edgeston and Cherise Brown-Easley.

The district court properly used the familiar McDonnell

Douglas burden-shifting test to evaluate the EEOC’s claims.

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

parties do not dispute that the EEOC established a prima

facie case of disparate treatment on behalf of all four

claimants at issue in this appeal. On these facts, a prima

facie case of disparate treatment is established when the

plaintiff shows the following: 1) the applicant belongs to a

racial minority; 2) the applicant applied for and was

qualified for a job for which the employer was seeking

applicants; 3) despite being qualified, the applicant was

rejected; and 4) after the applicant’s rejection, the position

remained open and the employer continued to seek applica-

tions from persons of the rejected applicant’s qualifications.

Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002).

If the plaintiff establishes a prima facie case, the em-

ployer must present a legitimate nondiscriminatory reason

for its action. Id. Then, the plaintiff must have a “full and

fair opportunity” to show that the employer’s proffered

reason was 1. factually baseless; 2. not the employer’s

actual motivation; 3. insufficient to motivate the action; or

4. otherwise pretextual. McDonnell Douglas, 411 U.S. at

804; Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 255-56 (1981); Vakharia, 190 F.3d at 807. The EEOC

claims that Target did not present a legitimate, nondiscrim-

inatory reason for failing to hire Daniels that was sufficient

16 No. 04-3559

to meet Target’s burden. The EEOC further claims that its

evidence to rebut Target’s reason for failing to interview

White, Edgeston and Brown-Easley was sufficient to raise

a genuine issue of material fact as to whether that reason

was a pretext for a discriminatory motive.

1. James Daniels, Jr.

Since the parties do not dispute that the EEOC, on behalf

of James Daniels, Jr., presented a prima facie case of

disparate treatment by Target, the next step is for Target

to rebut the inference of discrimination created by this

prima facie case. Thus, under the second step of the

McDonnell Douglas test, Target must clearly expound a

legitimate, non-discriminatory reason for its choice not

to hire Daniels. Vakharia, 190 F.3d at 806-07; McDonnell

Douglas, 411 U.S. at 802-03. In explaining this reason, the

employer need not persuade the court that it did not

discriminate against the applicant. Burdine, 450 U.S. at

257. Instead the employer must use admissible evidence

to raise a genuine issue of fact as to whether it rejected

the applicant based on a discriminatory motive. Id. at 254-

55. The employer must explain its claimed reason for

rejecting the applicant clearly enough to allow the court to

focus its inquiry on whether the employer honestly believed

that reason, Id. at 260, and to allow the plaintiff to identify

the kind of evidence it must present to demonstrate that the

reason is a pretext. Patrick v. Ridge, 394 F.3d 311, 317 (5th

Cir. 2004); see Burdine, 450 U.S. at 255-56 (stating that the

employer must “frame the factual issue with sufficient

clarity” so that the plaintiff has an opportunity to “demon-

strate pretext”).

An employer’s reason not to hire an applicant may be

subjective, such as an applicant’s poor attitude in an

interview. Millbrook, 280 F.3d at 1176 (employer’s rea-

son that the applicant “had poor communication skills

No. 04-3559 17

because he failed to make eye contract during the interview

and did not seem confident in his answers” was sufficient).

In the Eleventh Circuit, an employer must articulate

reasonably specific facts that explain how it formed its

opinion of the applicant in order to meet its burden under

Burdine. Chapman v. AI Transport, 229 F.3d 1012, 1034-35

(11th Cir. 2000). For example, if the employer rejected an

applicant because he gave a “poor interview,” the employer

must explain what specific characteristic it perceived as

“poor,” such as that the applicant’s interview responses

were unclear and off point. Id.

The Eleventh Circuit’s interpretation of Burdine is

reasonable because an employer’s assertion that it found a

plaintiff-applicant “poor” without any further explanation

would not create a genuine issue of fact as to whether the

employer honestly held that opinion. See Durkin v. Equifax

Check Services, Inc., 406 F.3d 410, 415 (7th Cir. 2005) (“self-

serving assertions” do not create a genuine issue of fact).

Because the word “criteria” implies that an employer is

evaluating specific characteristics of the applicant that are

able to be articulated, this interpretation is also consistent

with our precedent that allows employers to meet their

burden under McDonnell using “subjective evaluation

criteria.” See, e.g., Sattar v. Motorola, Inc., 138 F.3d 1164,

1170 (7th Cir. 1998) (stating that “subjective evaluation

criteria” such as an employee’s lack of “consistency, leader-

ship, initiative, and responsibility skills” were a sufficient

basis for an employer’s adverse action).

Here, Target did not meet its burden because its explana-

tion was only that “[b]ased upon [his] interview, Target

decided that [Daniels] did not meet the requirements for an

ETL position, and therefore elected not to hire him as an

ETL.” (Appellant’s App. 27). Without more detail, this

explanation does not frame the dispute such that the EEOC

can respond to Target’s asserted reason with specific

evidence that this reason was a pretext for a discriminatory

18 No. 04-3559

motive. Indeed, the EEOC has produced evidence that

Daniels possessed several qualifications deemed necessary

by Target for an ETL position. Daniels was sufficiently

qualified for an ETL position to participate in the ELITE

interview process. This was the third step toward being

hired as an ETL, and included two parts. First, Daniels took

a written test to determine leadership ability based on six

leadership qualities (Conscientiousness, Drive, Leadership,

Resilience, Interpersonal Effectiveness, and Problem

Solving). He scored in the ninetieth percentile or above on

four of the measured qualities, in the eighty-sixth percentile

on one quality and in the fiftieth percentile on the final

quality. Second, Daniels participated in three one-on-one

interviews. After this process, the interviewers met to

discuss Daniels, as they did with all other ELITE partici-

pants. The interviewers used their detailed interview forms

and written test scores as conversation-starters to discuss

whether Daniels should be offered a position. Target

produced interview forms with detailed comments about

some applicants, but Target did not produce the forms for

Daniels.

Because Target did not give a clear statement as to which

requirements Daniels lacked, the EEOC’s evidence sheds

little light on whether Target honestly believed that Daniels

was not qualified. Target should have articulated what

requirements Daniels failed to meet; Target presented an

ostensibly objective nondiscriminatory reason but failed to

articulate what criteria informed this reason. Target’s

proffered reason is insufficient to satisfy its burden to frame

an issue of fact so that the court and the EEOC can identify

what evidence might rebut that reason. Because Target’s

reason is insufficient, the EEOC can survive summary

judgment without refuting Target’s proffered reason.

Patrick, 394 F.3d at 316 n.20 (quoting Fisher v. Vassar

Coll., 114 F.3d 1332, 1335 (2d Cir. 1997), abrogated on other

grounds); see St. Mary’s Honor Center v. Hicks, 509 U.S.

No. 04-3559 19

502, 510 n.3 (1993) (stating that if an employer fails to show

a nondiscriminatory reason at trial the plaintiff will win

unless his or her prima facie case does not convince the fact

finder to infer a discriminatory motive).

Target argues that whether or not Daniels’ case could

have survived summary judgment is irrelevant because

the EEOC’s individual claim on behalf of Daniels is barred

because the EEOC did not allege in the district court that

Target failed to meet its burden to produce a legitimate

reason for rejecting him. However, Target argued (in the

context of a class action) that Target did “not cite any

evidence” in support of its proffered reason for rejecting

Daniels and that this lack of evidence “casts doubt on

Target’s claim that its hiring process produced legitimate,

non-discriminatory reasons for rejecting African-American

candidates for ETL jobs.” (Appellant’s App. 168-69). We find

this claim that the EEOC brought in the district court

adequate to consider Target’s individual claim on behalf

of Daniels on appeal.

Target also argues that Daniels’ claim is untimely under

42 U.S.C. § 2000e-5(e) because he was rejected more than

300 days before the charge that prompted the EEOC’s

investigation was filed. See Equal Employment Opportunity

Comm’n v. Harvey L. Walner & Assoc., 91 F.3d 963, 968 (7th

Cir. 1996) (stating that, after receiving an initial charge,

the EEOC may include in its complaint any re-

lated unlawful conduct that it discovers in the course of

investigating that charge). The district court did not

specifically address this issue, but Target encourages us to

affirm the district court on this issue. See J.E. Riley Inv. Co.

v. Commr. of Internal Revenue, 311 U.S. 55, 59 (1940)

(“where the decision below is correct it must be affirmed

by the appellate court though the lower tribunal gave a

wrong reason for its action”); see also Rauen v. U.S. Tobacco

Mfg. LP, 319 F.3d 891, 895 (7th Cir. 2003) (“[W]e may

20 No. 04-3559

affirm a grant of summary judgment on a ground other

than that relied upon by the district court below.”).

While Target is correct that we may affirm summary

judgment on this issue, we decline to do so. Keith Stanley’s

January 8, 2001, charge was included in the EEOC’s

complaint along with Kalisha White’s May 11, 2001, charge.

Although White’s charge was the first to allege that Target

was discriminating against African-Americans as a class,

Stanley’s charge brought the possibility of racial discrimina-

tion in Target’s District 110 to the attention of the EEOC

and began the process that led to the instant lawsuit.

Target did not argue specifically that Stanley’s charge is not

the appropriate charge from which to count for the purpose

of 42 U.S.C. § 2000e-5(e), though Target assumes that the

appropriate charge is that of White. Because the parties did

not fully argue this issue on appeal, we leave it to the

district court on remand to make this determination after

both parties have fully briefed and argued the issue. If the

district court determines that Stanley’s charge is the

appropriate starting point, Daniels charge is not outside the

statutory minimum. Daniels was rejected by Target after

March 13, 2000, which is within 300 days of when Keith

Stanley filed a charge that the EEOC investigated and

included in its complaint.

For the reasons discussed above, we reverse the district

court’s grant of summary judgment in favor of Target on

Daniels’ individual claim and remand this portion of the

case to the district court for further proceedings.

2. White, Edgeston & Brown-Easley

The district court declined to decide whether White,

Edgeston and Brown-Easley presented a prima facie case

because it concluded that whether or not a prima facie case

was established, the EEOC could not show that Target’s

nondiscriminatory reason for failing to interview White,

No. 04-3559 21

Edgeston and Brown-Easley was pretextual. On appeal,

Target did not claim, in response to the EEOC’s arguments,

that White, Edgeston and Brown-Easley failed to present a

prima facie claim; therefore, this issue is not before us.

In the district court, Target argued, and the court agreed,

that Target presented a legitimate, nondiscriminatory

reason to explain why White, Edgeston and Brown-Easley

were not interviewed for ETL positions. Store Team Leader

Matthew Armiger’s burdensome workload, Target argued,

caused him to fail in several of his recruitment duties,

including failure to conduct interviews when they were

scheduled. The EEOC did not contest this finding; therefore

step two of the McDonnell Douglas test is satisfied and the

burden shifts back to the EEOC.

In step three of the McDonnell Douglas test, a plain-

tiff must show that the defendant’s nondiscriminatory

reason for rejecting the applicant is a pretext meant to hide

a discriminatory motive. Millbrook, 280 F.3d at 1175. To

satisfy this requirement, a plaintiff must show that (a) the

employer’s nondiscriminatory reason was dishonest; and (b)

the employer’s true reason was based on a discriminatory

intent. McDonnell Douglas, 411 U.S. at 805; Vakharia, 190

F.3d at 807. To survive summary judgment, however, the

plaintiff need only offer evidence that supports an inference

that the employer’s nondiscriminatory reason for its action

was dishonest. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d

712, 726 (7th Cir. 2005); Weisbrot v. Med. Coll. of Wisconsin,

79 F.3d 677, 682 (7th Cir. 1996). Therefore, summary

judgment is only proper “where no rational fact finder could

believe that the employer lied about its proffered reasons

for the hiring decision in question.” Rudin, 420 F.3d at 726

n.8 (internal quotations and citations omitted).

A plaintiff may show pretext indirectly by attacking the

employer’s credibility. Burdine, 450 U.S. at 256. Nonethe-

less, “general determinations” about an employer’s credibil-

22 No. 04-3559

ity, though helpful, will not control whether a specific hiring

decision was honestly justified. McDonnell Douglas, 411

U.S. at 805 n. 19; see Furnco Constr. Corp. v. Waters, 438

U.S. 567, 579-80 (1978) (stating that the district court could

consider the composition of the employer’s workforce as

evidence that it did not have a discriminatory intent but

every applicant was nonetheless entitled to consideration

based only on permissible factors).

An applicant can raise a genuine issue of material fact

about an employer’s credibility by presenting evidence that

the employer’s explanation was contrary to the facts,

insufficient to justify the action or not truly the employer’s

motivation. Vakharia, 190 F.3d at 807; see Rudin, 420 F.3d

at 726 (stating that evidence that employer’s rationale for

the action changed over time or that employer did not follow

its normal hiring policy created genuine issue of whether

employer was credible). A plaintiff cannot raise a genuine

issue if the evidence shows only that the employer made a

wrong assessment of the applicant. Millbrook, 280 F.3d at

1175. Instead, the plaintiff must present evidence that

supports an inference that the employer was intentionally

dishonest when it gave its nondiscriminatory reason for

rejecting the applicant. Id. Only evidence of information

that was available to the employer at the time it rejected

the applicant will be relevant. Vakharia, 190 F.3d at 808.

Here, we find that the EEOC did present sufficient

evidence to establish a genuine issue of material fact as to

whether Target’s reason for not interviewing White,

Edgeston and Brown-Easley was a pretext for race discrimi-

nation. First, Target argued that Armiger could not have

discriminated against White, Edgeston and Brown-Easley

because he did not know their race. However, the EEOC

presented evidence that creates a genuine issue of material

fact as to whether Armiger knew the applicants’ race. The

EEOC showed that each applicant’s resume contained

information that suggested she might be African-American.

No. 04-3559 23

White’s resume indicated that she was a member of Alpha

Kappa Alpha sorority, and Armiger testified that he knew

this to be an African-American sorority. Edgeston’s resume

showed that she also was a member of Alpha Kappa Alpha

sorority, that she majored in African-American studies that

she wrote a paper titled The African-American Response to

School Choice in Milwaukee and that she was a member of

the NAACP. Finally, Brown-Easley’s resume indicated that

she was a member of the “Metropolitan Alliance of Black

School Educators.” Armiger testified that he typically

looked at sorority involvement and extracurricular activities

when he reviewed resumes, and that he reviewed White and

Edgeston’s resumes. In addition, Armiger was in charge

of recruiting at University of Wisconsin-Milwaukee, and

Edgeston and Brown-Easley’s resumes were collected from

a multi-cultural career fair at that school.

Additionally, Armiger claims that he failed to interview

White because he was “too busy” with his management

duties when she called. He claims that he often told appli-

cants that he was too busy to speak to them if they called

while he was on the sales floor, and that he did not keep a

record of who called. However, fifteen minutes after White

called Armiger, Armiger took a call from the fictitious

Caucasian applicant, “Sarah Brucker,” and scheduled an

interview with her. “Brucker” was less qualified than White

because White was pursuing an MBA degree but “Brucker”

was not, and Armiger recalled seeing in White’s resume

that she was pursuing this MBA. These facts support a

reasonable inference that Armiger’s busy schedule was (a)

not his actual motivation; or (b) an insufficient reason for

failing to interview White, Edgeston and Brown-Easley.

Thus, based on this fact as well, a reasonable fact finder

could conclude that Target’s nondiscriminatory reason for

failing to interview the applicants is pretextual.

Target disputes that the Sarah Brucker interview situa-

tion aids the EEOC’s argument. Target argues that White’s

24 No. 04-3559

deposition testimony conflicts with her claim that the calls

from White and “Brucker” were only fifteen minutes apart

because White could not remember at her September 24,

2002, deposition exactly how much time had passed be-

tween the calls. Because White affirmed in that deposition

that her May 11, 2001, charge of discrimination was correct

and because her charge stated that about fifteen minutes

passed between the calls, for the purpose of summary

judgment we accept the EEOC’s assertion that the calls

were fifteen minutes apart and find that this evidence can

and does aid the EEOC’s argument.

Second, Target claims that Armiger would not have had

White’s resume in front of him when she called to set up an

interview and he said he was too busy to do so, and he

therefore would not have known her race. However, the

EEOC presented expert testimony indicating that some

people can determine a speaker’s race based on his or her

voice or name.

Dr. Thomas Purnell, a linguistics professor, researched

racially-affiliated dialects and telephone filtered speech.

Purnell had White, Edgeston and Brown-Easley read

statements to him over the telephone that were similar to

those they made to Armiger. He testified that the three

women were discernible as African-American.

Dr. Marianne Bertrand, an economics professor, testified

that some corporate recruiters can identify a person’s race

based on his or her name. Bertrand’s study compared job

applicants with Caucasian names, such as Sarah, versus

applicants with African-American names, such as Lakisha.

Bertrand noted that White’s first name, Kalisha, is very

similar to the name Lakisha that was used in her study.

The expert testimony of Purnell and Bertrand might

persuade a reasonable fact finder that, at the time of the

phone calls, Armiger at least suspected that White was

African-American and that “Brucker” was Caucasian.

No. 04-3559 25

Target argues that the expert evidence does not raise

a genuine issue of fact because it addresses some people’s

ability to discern race but not Armiger’s ability to do so.

However, there is a genuine issue of material fact as to

whether Armiger was able to distinguish White and

Brucker’s respective races. See Rudin v. Land of Lincoln

Cmty. Coll., 420 F.3d 712, 726 (7th Cir. 2005); Weisbrot v.

Med. Coll. of Wisconsin, 79 F.3d 677, 682 (7th Cir. 1996).

This expert evidence likewise could lead a fact finder

to conclude that Armiger knew Edgeston and Brown-

Easley’s race because each of these applicants left at least

one message for Armiger after he failed to call at their

scheduled interview time. Armiger had set up interviews for

March 4 and 6, 2001. He was supposed to interview nine

ETL candidates over those two days, including Edgeston

and Brown-Easley. He failed to interview Edgeston and

Brown-Easley as well as two Caucasian candidates. One of

the Caucasian candidates does not recall whether he was

ever interviewed by Target. Edgeston, Brown-Easley and

one of the Caucasian candidates each called Target to find

out why they were not interviewed. All three candidates

called the same phone number, which was also the number

they had called to set up their interviews with Armiger. The

Caucasian candidate was interviewed later by another

Target official. Edgeston and Brown-Easley were never

interviewed.

This evidence, as a whole, raises a genuine issue of fact as

to whether Arminger knew White, Edgeston and Brown-

Easley’s race at the time he failed to interview them. Thus,

a reasonable fact finder could conclude that contrary to

Target’s assertion and Armiger’s testimony, Armiger did

know the race of the applicants at the time he chose not

to interview them.

Finally, Target also argues that if Armiger had intended

to discriminate against Edgeston and Brown-Easley he

would not have contacted them to set up an interview, and

that because Armiger did set up the interview it makes

26 No. 04-3559

sense to assume that he would not miss it for a discrim-

inatory reason. The EEOC claims that Armiger did not

choose to interview Edgeston and Brown-Easley, but

instead only followed up on the recommendations of his

predecessor and of career fair recruiters. This Court need

not address the contours of each side’s logic on this

point any further than to conclude that there is a dispute

over when and with how much care Armiger reviewed

Edgeston and Brown-Easley’s resumes and who actually

decided to interview the individuals. A trier of fact will

likely need to resolve this dispute, but at this stage, we

construe the facts in the light most favorable to the EEOC,

and the EEOC has presented a genuine issue of fact as

to whether Armiger was truly the decision-maker that

elected to interview Edgeston and Brown-Easley.

Viewing all facts in the light most favorable to the EEOC

and drawing all inferences in its favor, we conclude that

there is a genuine issue of material fact as to whether

Target’s proffered reason that Armiger was too busy to

interview White, Edgeston and Brown-Easley was a pretext

for discriminatory action based on race. Therefore, sum-

mary judgment was improper for these applicants’ individ-

ual claims.

III. Conclusion

For the foregoing reasons, we REVERSE the district court’s

grant of Target’s motion for summary judgment on its

record keeping violations and on the individual disparate

treatment claims of James Daniels, Jr., Kalisha White,

Ralpheal Edgeston and Cherise Brown-Easley, and REMAND

for proceedings consistent with this opinion.

No. 04-3559 27

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-23-06