Sublett, Lateirra R. v. John Wiley & Sons

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1213

LATEIRRA R. SUBLETT,

Plaintiff-Appellant,

v.

JOHN WILEY & SONS, INC. &

WILEY PUBLISHING, INC.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:03-CV-0347-SEB-JPG—Sarah Evans Barker, Judge.

____________

ARGUED JANUARY 6, 2006—DECIDED SEPTEMBER 13, 2006

____________

Before EASTERBROOK, MANION, and WOOD, Circuit

Judges.

WOOD, Circuit Judge. LaTeirra R. Sublett, an African-

American woman, sued John Wiley & Sons, Inc., and

Wiley Publishing, Inc. (to whom we refer collectively as

“Wiley”), alleging that they failed to promote her, gave her

unwarranted poor performance reviews, and retaliated

against her for filing a complaint about race discrimina-

tion in violation of both Title VII of the Civil Rights Act,

42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The district

court granted summary judgment in favor of

Wiley. Although some of Sublett’s allegations, if true, reflect

unfortunate behavior, we conclude that she failed to

2 No. 05-1213

establish a prima facie case or pretext with respect to any

of her claims. We therefore affirm the district court’s

judgment.

I

On June 1, 1999, Wiley’s predecessor, IDG Books World-

wide, Inc. (IDG), hired Sublett as a Customer Care Repre-

sentative (CCR). Her qualifications for this posi-

tion included a high school diploma, certification as an

administrative assistant based on her completion of an

eight-month training course at Midwest Career College, and

an employment history including work as a food server, a

customer service representative at another company, a

telemarketer, and an insurance collector. At the time

Sublett was hired, she was the only African-American

employee in the Customer Care Department.

In 2000, IDG created four Senior CCR positions. Sublett’s

supervisor Felicite Pickens, an African-American woman

who had been hired after Sublett, encouraged her to apply

for one of these positions. Pickens, however, was fired soon

thereafter and played no role in determining who was

selected. Instead, supervisors Breea Hosier and Linda

Perkins interviewed Sublett for one of the available posi-

tions. Hosier and Perkins filled three of the slots with white

employees. Initially, they did not select Sublett for the

fourth available position because they thought that she was

insufficiently enthusiastic about the job in her interview

and that she had a conflict with another employee, Vicki

Bess. Sublett had more seniority at the company than some

of the employees who were selected for the promotion.

When Sublett found out that she did not receive the CCR

position, she emailed Chad Secrist, an employee in the

Human Relations Department, to find out what steps

she could take if she thought the reason for her lack of

success was racial discrimination. This email triggered a

No. 05-1213 3

series of events that eventually led to a meeting among

Sublett, Hosier, Perkins, and Sherry Marcuson, another

employee in the Human Relations Department. At this

meeting, Sublett informed Hosier and Perkins that she

did not have a conflict with Bess and was in fact enthusias-

tic about the position. After the meeting, Perkins and

Hosier promoted Sublett to a Senior CCR position effec-

tive August 21, 2000.

In September 2001, Sublett received her annual perfor-

mance review. The review covered six categories with four

possible ratings for each category: “Outstanding Perfor-

mance,” “Exceeds Performance Expectations,” “Proficient,”

and “Needs Improvement.” Sublett, who had been evaluated

by Hosier and Perkins, received the “Proficient” rating in

each category. Based on this review, Sublett received a 4%

merit pay increase. Around the same time, John Wiley &

Sons, Inc. acquired IDG (which had since become Hungry

Minds) and changed the company’s name to Wiley Publish-

ing, Inc.

In February 2002, Wiley restructured its Customer Care

Department. As a result of this reconfiguration, two “team

leader” supervisory positions became available, a day-

shift position and a night-shift position. Hosier asked

Sublett which position she preferred, and Sublett replied

that she was interested in the day-shift position. Sublett

was one of five employees and the only African-American to

express interest in the day-shift position. Ultimately, Hosier

and Perkins hired Mary Roberts, a white woman, for the

job. The reason they gave to Sublett for her lack of success

was that they did not think that she was ready to assume

the responsibilities of a team leader. Later, in June 2002,

another team leader position became available. Hosier and

Perkins again considered Sublett for the position, but they

eventually hired Michael Shoptaw, a white male from

outside the company. On June 17, 2002, after sending

several emails to Wiley supervisors complaining about not

4 No. 05-1213

receiving a promotion, Sublett filed a claim with the Equal

Employment Opportunity Commission (EEOC), asserting

race discrimination and retaliation.

On August 8, 2002, the Director of Human Resources,

along with Marcuson, Hosier, and Perkins, held a meeting

with Sublett to discuss her complaints. At this meeting,

Sublett expressed her belief that she had been passed

over for the available promotions because of her race.

Perkins disagreed, claiming instead that she had not

been selected because she lacked the requisite leadership

skills and was not as qualified for the position as the

applicants that were hired. As a result of this meeting,

Sublett received a Development Plan, which detailed the

areas in which she would need to improve in order to

qualify for future promotions.

In September 2002, Sublett received her 2002 annual

performance review, which also used four possible ratings:

“Substantially Exceeded,” “Fully Met,” “Acceptable w/

Qualifications,” and “Less Than Acceptable.” Sublett

received two “Fully Met” ratings, four “Acceptable w/

Qualifications” ratings, and a 3% merit pay increase.

On October 23, 2002, Sublett filed a second EEOC charge

for race discrimination and retaliation. In addition to

complaining about the 2000 and 2002 promotion decisions,

she alleged that Wiley retaliated against her by giving

her poor performance reviews in 2001 and 2002. Shortly

after Sublett filed this claim, Hosier and Perkins promoted

her to a team leader position that had recently become

available.

On December 12, 2002, the EEOC issued Sublett a right-

to-sue letter; Sublett filed her complaint in federal dis-

trict court on March 7, 2003. When the time came for the

district court to consider Wiley’s motion for summary

judgment, Sublett responded with evidence of Wiley’s

failure to promote her in 2000 and 2002 and her negative

No. 05-1213 5

performance reviews in 2001 and 2002. She also sub-

mitted the testimony of Felicite Pickens, her former super-

visor. Pickens testified that supervisors Hosier and Perkins

rarely talked to African-American employees. In addition,

Pickens claimed that on at least one occasion, Perkins

asked her to change the performance evaluation of a white

employee to reflect a more positive rating than Pickens

believed the employee actually deserved. Additionally,

Sublett submitted testimony from Secrist, the Human

Relations employee to whom she initially complained.

Secrist alleged that another Human Relations employee

(who had some role in the company’s promotion decisions)

commented that she “did not like black people.” On a

separate occasion, according to Secrist, Wiley’s Vice Presi-

dent of Operations told Secrist that he would never accept

anyone for a position at the company that did not have an

“ethnically neutral voice.” Sublett claimed generally that

while supervisors Hosier and Perkins fired a number of

African-American employees during her tenure at Wiley,

including Felicite Pickens, they hired and promoted only

white employees. She also accused Marcuson of treating

white people more favorably than minorities; in fact,

Sublett claimed, Marcuson treated African-American

employees at the company with “disgust.”

Sorting through this evidence and correlating it to

Sublett’s specific claims, the district court concluded that

Sublett had failed to establish a prima facie case with

respect to any of her discrimination or retaliation claims.

The court accordingly granted Wiley’s motion for sum-

mary judgment. We review the district court’s order

de novo, construing all facts and drawing all reasonable

inferences from those facts in favor of Sublett. See Koszola

v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1107 (7th

Cir. 2004).

6 No. 05-1213

II

As a preliminary matter, we briefly address certain

alleged procedural errors that Sublett claims prejudiced

her. First, she argues that the district court improperly

based its decision on an issue that Wiley failed to raise

in its motion for summary judgment, namely, that Sublett

had not presented evidence supporting a finding that

Wiley’s proffered reasons for failing to promote her in 2000

were pretextual. Sublett asserts that Wiley raised only

a statute of limitations defense with regard to this claim.

This switch in grounds, Sublett argues, deprived her of

the opportunity to argue the issue of pretext before the

district court.

It is true that in its motion for summary judgment, Wiley

argued only that Sublett’s claim based on the 2000 promo-

tion was untimely because she filed her EEOC

claim outside the 300-day period specified by Title VII and

her § 1981 claim after the two years permitted under

Indiana’s statute of limitations. (In an intervening decision,

the Supreme Court held that § 1981 claims are subject to a

four-year statute of limitations, see Jones v. R.R. Donnelley

& Sons, Co., 541 U.S. 369 (2004); this change does not affect

our decision.) As a general matter, if the moving party does

not raise an issue in support of its motion for summary

judgment, the nonmoving party is not required to present

evidence on that point, and the district court should not rely

on that ground in its decision. See Edwards v. Honeywell,

960 F.2d 673, 674 (7th Cir. 1992) (“When a party moves for

summary judgment on ground A, his opponent is not

required to respond to ground B—a ground the movant

might have presented but did not.”) (quoting Malhotra v.

Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989).

The problem with Sublett’s argument is that it does not

reflect everything that happened in the district court. The

record establishes that the question of pretext was briefed

No. 05-1213 7

thoroughly before the district court. For example, in her

brief in opposition to Wiley’s motion for summary judgment,

Sublett specifically noted that “the reasons for not promot-

ing [her] in 2000 [were] undisputed to be false” and that

this was “evidence of the defendants’ plan, motive, intent,

and pretext.” (Emphasis added.) In response, Wiley argued

that “Sublett . . . failed to create a genuine issue of pretext”

with respect to the 2000 promotion, as part of an extensive

discussion of pretext. (Emphasis added.) Sublett was also

permitted to file a surreply brief, in which she argued that

the fact that she did not actually have a conflict with

another co-worker “is evidence that Perkins . . . had not

[sic] basis to believe that Sublett had a conflict with

[another co-worker]. . . . Perkins was simply dishonest and

had no basis for such a statement. . . . When the defendants

lie about the plaintiff, it is evidence of pretext.” Because

Sublett had a “meaningful opportunity to come forward

with all of [her] evidence” about pretext, Simpson v.

Merchants Recovery Bureau, Inc., 171 F.3d 546, 550 (7th

Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

326 (1986)), the district court was entitled to rely on this

ground in its summary judgment decision.

Sublett also challenges the district court’s finding that

she did not name the correct defendant with respect to

her claim about the 2000 promotion. The district court

concluded that in 2000, Sublett’s employer was either IDG

or Hungry Minds, neither of which is a party to this suit.

Our review of the record reveals that there has merely been

a series of name changes—IDG changed its name to Hungry

Minds, and Hungry Minds became Wiley Publishing, Inc. In

the end, none of this matters: the district court offered this

reason as one of several for rejecting Sublett’s 2000 claim.

We proceed on the assumption— favorable to Sublett—that

these changes of ownership have no effect on Wiley’s

liability.

8 No. 05-1213

On the merits, we consider first Sublett’s challenge to the

district court’s rejection of her claim that the reason why

she did not initially receive a promotion to the senior CCR

position in 2000 was because of her race. Racial discrimina-

tion of this kind is, of course, prohibited both by Title VII

and § 1981. See 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981.

Furthermore, “[a]lthough section 1981 and Title VII differ

in the types of discrimination they proscribe, the methods

of proof and elements of the case are essentially identical.”

Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th

Cir. 1996). The discussion that follows thus applies with

equal force to Sublett’s claims under both statutes.

A plaintiff can support her Title VII claim for failure to

promote in one of two ways: “she may directly show that

racial discrimination motivated the employment deci-

sion, or, as is more common, she may rely on the indirect,

burden-shifting method set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).” Perdomo v. Browner,

67 F.3d 140, 144 (7th Cir. 1995) (citations omitted). Sublett

proceeds under the latter burden-shifting method. She

therefore has the initial burden of establishing a prima

facie case of race discrimination by showing that: “1) she is

a member of a protected group; 2) she was qualified for the

position sought; 3) she was rejected for the position; and 4)

the employee promoted was not a member of the protected

group and was not better qualified than the plaintiff.”

Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir.

2001).

If she passes that hurdle, the burden shifts to the defen-

dant to articulate a legitimate, nondiscriminatory reason

for its action, “which if believed by the trier of fact, would

support a finding that unlawful discrimination was not the

cause of the employment action.” St. Mary’s Honor Center

v. Hicks, 509 U.S. 502, 507 (1993) (citing Tex. Dept. of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). At that

point, “[t]he plaintiff . . . resumes her original burden of

No. 05-1213 9

proof and must establish by a preponderance of the evi-

dence that the defendant’s proffered reasons are

pretextual.” Perdomo, 67 F.3d at 144.

Even assuming that Sublett established a prima facie

case with respect to Wiley’s failure to promote her in 2000,

there is not enough evidence of pretext in this record

to survive summary judgment. Pretext is a “lie, specifically

a phony reason for some action.” Russell v. Acme-Evans,

Co., 51 F.3d 64, 68 (7th Cir. 1995). In order to demon-

strate a material issue of fact as to pretext Sublett

must show that “1) it is more likely that a discriminatory

reason motivated the employer than the proffered non-

discriminatory reason or 2) that an employer’s explanation

is not credible.” Hudson v. Chicago Transit Auth., 375

F.3d 552, 561 (7th Cir. 2004) (citing Guerrero v. Ashcroft,

253 F.3d 309, 313 (7th Cir. 2001)).

Wiley has consistently asserted that it did not initially

select Sublett for a promotion in 2000 because it be-

lieved that she had a conflict with another co-worker and

that she did not express enough enthusiasm in her inter-

view. After the responsible officials met with her and

learned that their assumptions were wrong, she received

the promotion. It is true that if Wiley’s initial decision

not to promote Sublett was based on race, its later decision

to promote her does not erase the earlier discrimination.

See Molnar v. Booth, 229 F.3d 593, 600-01 (7th Cir. 2000)

(“The mere fact that the [adverse employment action]

was reversed . . . and [plaintiff’s] career put back on track

does not diminish its importance during the time it

lasted . . . . The short duration is naturally relevant to

the degree of damage [plaintiff] suffered. . . .”). Sublett,

however, has not offered any evidence that, if believed by a

trier of fact, would demonstrate that Wiley’s proffered

justification for its initial decision was pretextual, rather

than simply mistaken.

10 No. 05-1213

The other evidence to which she points does not do the

job. She relies, for example, on evidence indicating that

Perkins told Pickens, her former supervisor, to change

the evaluation of a white employee to reflect a more positive

rating. The problem with this “evidence,” however, is that

Sublett provides no supporting facts or explanatory details

with respect to these events. Nothing indicates whether this

request, which we assume was made, was based on race or

on an honest disagreement with Pickens’s assessment of the

employee. Nor is there anything else in the record from

which a trier of fact could determine whether Perkins

systematically discriminated against minority employees or

if she merely “show[ed] favorable treatment [to] one

employee who happened to be white.” Jordan v. Summers,

205 F.3d 337, 345 (7th Cir. 2000). Because there is insuffi-

cient evidence of pretext, the district court did not err in

granting summary judgment in favor of Wiley with respect

to the failure to promote in 2000 claim.

III

Sublett also challenges the district court’s rejection of her

claim that Wiley discriminated against her in 2002 when it

did not promote her. In 2002, as we noted earlier, Wiley

considered Sublett for promotions in February, March, and

June. With respect to the February and June decisions, we

agree with the district court that Sublett failed to establish

the fourth element of the prima facie case—that the

employer promoted someone who was not in the protected

class and was not as qualified as the plaintiff. Although

neither of the successful candidates (Roberts and Shoptaw)

is African-American, their qualifications for the team leader

position were undeniably superior to those of Sublett’s. For

example, the job description for the team leader position

rated past supervisory experience as “highly desirable.” At

the time she was being considered for these promotions,

No. 05-1213 11

Sublett had no supervisory experience. The successful

candidates, in contrast, had two and nine years of supervi-

sory experience respectively. See Payne v. Milwaukee

County, 146 F.3d 430, 434 (7th Cir. 1998). The job descrip-

tion also indicated that some college study was desirable.

Sublett’s post-secondary education was limited to an eight-

month administrative assistant training program. Roberts,

on the other hand, had a bachelor of science degree in

business, and Shoptaw had an associates degree in business

and was enrolled in college marketing classes for two years.

Although evidence showing that the person who was hired

was less qualified than the plaintiff may sometimes suffice

to show pretext, see Ash v. Tyson Foods, Inc., 126 S.Ct.

1195, 1197 (2006), the difference must be a significant one.

As we held recently in Mlynczak v. Bodman, “evidence of

the applicants’ competing qualifications does not constitute

evidence of pretext unless those differences are so favorable

to the plaintiff that there can be no dispute among reason-

able persons of impartial judgment that the plaintiff was

clearly better qualified for the position at issue.” 442 F.3d

1050, 1159 (7th Cir. 2006) (relying on Millbrook v. IBP, Inc.,

280 F.3d 1169 (7th Cir. 2002)). The evidence to which

Sublett points to show that she was at least as qualified for

the position falls short. She notes only that she had more

seniority than Roberts and that she had better relations

with other employees. This is not enough to meet her

burden. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137,

1141-42 (7th Cir. 1998) (finding discrimination did not occur

where an employee with more seniority was passed over for

a position, because the less senior employee had superior

qualifications for the position); Dunn v. Nordstrom, Inc.,

260 F.3d 778, 787 (7th Cir. 2001) (holding employer entitled

to weigh plaintiff’s accomplishments against deficiencies).

Sublett ran into a different problem with the March

2002 promotion: the district court found that her claim

could not succeed because she never applied for that

12 No. 05-1213

position. Not surprisingly, this court has held that “[i]f a

plaintiff does not apply for a vacancy that is posted, [she]

cannot make a prima facie case for unlawful discrimina-

tion . . . under Title VII unless [she] demonstrates that

the employer’s discriminatory practices deterred [her]

from applying.” Hudson v. Chicago Transit Auth., 375 F.3d

552, 558 (7th Cir. 2004); see also Grayson v. City of Chicago,

317 F.3d 745, 748 (7th Cir. 2003) (holding that in a failure

to promote claim the plaintiff must show that she applied

for and was rejected for the promotion to establish an

adverse employment action). The promotion available in

March 2002 was a night-shift team leader position. When

Hosier and Perkins asked Sublett which shift she wanted,

she said that she was interested in the day-shift position.

The district court rightly rejected Sublett’s contention that

Wiley violated her rights by not considering her for a

position in which she did not express an interest.

We add for the sake of completeness that our examination

of the record also convinces us that Sublett has not offered

evidence showing that Wiley’s reasons for its 2002 decisions

were pretextual. There is nothing suspect about the fact

that each of the individuals initially promoted to the team

leader positions either quit or transferred from these posts.

Nor can Sublett prevail by showing that a more astute

employer would have evaluated the candidates’ relative

qualifications differently. She had to present some evidence

that Wiley’s stated reasons for hiring these employees were

lies, and she has not done so. See Hudson, 375 F.3d at 562.

Finally, without any evidence that Wiley always picked

internal candidates (and there is none), the fact that

Shoptaw was hired from outside the company also fails to

help Sublett.

Sublett’s final effort to salvage the 2002 claims is to

criticize the district court for failing to consider Wiley’s

actions in the light of the entire record. In her view, the

allegedly discriminatory action in 2000, as well as Wiley’s

No. 05-1213 13

alleged ongoing history of discrimination against African-

Americans, put the 2002 actions in a different light. The

district court, however, did not ignore anything that it

was required to consider. (In fact, the court patiently waded

through Sublett’s presentations, even though it expressed

frustration with her “egregious departure” from the court’s

local rules governing summary judgment motions.) Al-

though a plaintiff can demonstrate pretext in a variety of

ways, including by presenting evidence of the employer’s

past treatment of the plaintiff or its practices with respect

to minority employment, see McDonnell Douglas, 411 U.S.

at 804-05, it is not clear how the stray comments Sublett

identifies here, while offensive and inappropriate, support

her argument that Hosier and Perkins were lying when

they said that they did not initially promote Sublett

because she was not as qualified as the selected candidates.

Sublett failed to support her claim that Wiley’s alleged

failure to promote any African-Americans was circumstan-

tial evidence of pretext with sufficient information about

the relevant applicant pool. Because Sublett’s evidence in

response to Wiley’s summary judgment motion did not

support either her prima facie case or a finding of pretext,

the district court correctly granted summary judgment in

Wiley’s favor on the claims relating to the 2002 promotions.

IV

Sublett’s next complaint relates to the somewhat negative

performance evaluations she received in 2001 and 2002,

which she believes were motivated by race. A negative

performance evaluation, however, does not in itself consti-

tute an adverse employment action. See Haywood v. Lucent

Tech., Inc., 323 F.3d 524, 532 (7th Cir. 2003). Nonetheless,

negative performance evaluations may serve as direct

evidence of other discrimination or as evidence at the

pretext stage to suggest that the defendant’s articulated

14 No. 05-1213

reasons for the plaintiff’s adverse employment action are

false. Id.

On appeal, however, Sublett presents no evidence tending

to show whether the 2001 and 2002 reviews depict anything

other than an accurate description of her job performance.

Sublett’s only argument with respect to this claim appears

to be her own view that she deserved a higher rating. This

is not enough. As we have noted, “it is . . . axiomatic that a

plaintiff’s conclusory statements do not create an issue of

fact. . . . ‘An employee’s self-serving statements about his

ability . . . are insufficient to contradict an employer’s

negative assessment of that ability.’ ” Jackson v. E.J. Brach

Corp., 176 F.3d 971, 985 (7th Cir. 1999) (quoting Gustovich

v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th

Cir. 1992) (internal citation omitted)). Sublett has done no

more than this; she has thus failed to raise a question of

material fact with respect to the performance reviews.

V

Sublett finally also argues that Wiley unlawfully re-

taliated against her for filing a discrimination complaint by

giving her negative performance evaluations in 2001 and

2002 and then failing to promote her in 2002. In Stone v.

City of Indianapolis Public Utilities Division, 281 F.3d 640

(7th Cir. 2002), we clarified the standard for sum-

mary judgment on retaliation claims under Title VII. There

are two distinct ways in which a plaintiff may establish a

prima facie case for unlawful retaliation. First, the plaintiff

may “present direct evidence (evidence that establishes

without resort to inference from circumstantial evidence)

that [she] engaged in protected activity (filing a charge of

discrimination) and as a result suffered the adverse employ-

ment action of which [she] complains.” Stone, 281 F.3d at

644. Second, the plaintiff may proceed under a framework

similar to the McDonnell Douglas burden-shifting test by

No. 05-1213 15

showing that: “1) after lodging a complaint about discrimi-

nation, 2) only [she], and not any otherwise similarly

situated employees who did not complain, was 3) subjected

to an adverse employment action even though 4) [she] was

performing her job in a satisfactory manner.” Johnson v.

Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003)

(quoting Stone, 281 F.3d at 642). “Failure to satisfy any one

element of the prima facie case is fatal to an employee’s

retaliation claim.” Hudson, 375 F.3d at 560. Even if a

plaintiff establishes a prima facie case, the employer is

entitled to summary judgment “unless there is a material

issue of fact as to whether the employer’s non-invidious

reason is pretext for retaliation.” Hudson, 375 F.3d at 560.

In granting summary judgment for Wiley, the district

court reasoned that “too much time passed between the

July 2000 exploration of reasons for her failure to receive a

senior CCR position and the February 2002 promotion

of Roberts to team leader for any telling temporal con-

nection to exist from which the required causal relationship

could be inferred.” The district court’s reference to

a “required causal relationship” was not entirely accurate,

since the employee is not required to present proof of a

causal link between the protected expression and the

adverse employment action to establish a prima facie

case under the indirect method. Johnson, 325 F.3d at 897.

Nonetheless, this error was harmless.

Sublett did not point to employees who were similarly

situated to her for purposes of the 2002 promotions. It

was up to her to find others who were “directly compa-

rable in all material respects.” Hudson, 375 F.3d at 561

(quoting Patterson v. Avery Dennison Corp., 281 F.3d 676,

680 (7th Cir. 2002)). Specific factors include whether the

employees: “1) held the same job description, 2) were

subject to the same standards, 3) were subordinate to the

same supervisor, and 4) had comparable experience,

education, and other qualifications—provided the em-

16 No. 05-1213

ployer considered these latter factors in making the person-

nel decision.” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d

520, 532 (7th Cir. 2003). As our earlier discussion shows,

however, Sublett was not comparable to the people who

received the jobs in 2002 in the critical areas of education

and work experience.

Sublett also alleges that the district court erred in

granting summary judgment in favor of Wiley with respect

to her claim that her negative performance evaluations

in 2001 and 2002 were a form of retaliation for her com-

plaint alleging race discrimination. As noted above, the

2001 Annual Performance Review used four possible

ratings: “Outstanding Performance,” “Exceeds Performance

Expectations,” “Proficient,” and “Needs Improvement.”

Sublett received “Proficient” ratings in all six categories;

her evaluation also included notations from her supervisors

expressing their desire to see her become more of a leader

and take more initiative within the department. On the

basis of this review, Sublett received a 4% merit pay

increase. In 2002, the review form was similar in all

respects, with a roughly equivalent rating scale. Sublett’s

ratings were in the middle to lower-middle range. Based on

the 2002 review, Sublett received a 3% salary increase.

As the basis for her retaliation claim, Sublett argues that

these reviews, which were issued after she began complain-

ing about race discrimination within the company, were

considerably worse than her 2000 performance review. The

format of the 2000 review, however, was dramatically

different from the 2001 and 2002 review forms. For exam-

ple, as compared to the six categories of evaluation on the

2001 and 2002 forms, the 2000 review contained 40 sepa-

rate areas of evaluation. Additionally, in contrast to the

three ratings an employee could receive for each category in

2000, there were four qualitative options on the 2001 and

2002 forms.

No. 05-1213 17

A reasonable trier of fact could not find that Sublett’s

2000 reviews were better than the 2001 and 2002 reviews

about which she complains. Although she received top

ratings in three categories in her 2000 reviews, she received

a middle-tier evaluation in the other 37 categories. In 2002,

in addition to receiving four ratings that were equivalent to

the “Proficient” ratings she received in 2001, she received

two ratings that were one step below the highest ratings.

This is not enough to permit a finding that Wiley

impermissibly retaliated against Sublett by issuing her the

performance reviews she received in 2001 and 2002.

VI

We conclude that Sublett’s evidence, construed most

favorably to her, shows at most that certain individuals at

Wiley made some unfortunate remarks and some

contestible promotion decisions. This is not enough to

permit a trier of fact to consider her discrimination or

retaliation claims. We therefore AFFIRM the judgment of the

district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-13-06