Kelly Hobbs v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3591

K ELLY H OBBS,

Plaintiff-Appellant,

v.

C ITY OF C HICAGO, a municipal corporation,

JOSEPH S ENESE, and P AT Q UINN,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CV 3795—Samuel Der-Yeghiayan, Judge.

A RGUED O CTOBER 20, 2008—D ECIDED JULY 21, 2009

Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. Kelly Hobbs, an African-Ameri-

can woman, was passed over for a promotion during

her employment with the City of Chicago and claimed

race and gender discrimination, retaliation, and the

existence of a hostile work environment. We affirm the

district court’s grant of summary judgment to the defen-

dants because Hobbs failed to show she was similarly or

better qualified than the white male who received the

2 No. 07-3591

promotion and because she cannot show she suffered

retaliation or a hostile work environment as a result of

her discrimination complaint.

I. BACKGROUND

Kelly Hobbs, an African-American woman, began

working for the City in 1989 as a Motor Truck Driver in

the City’s Department of Transportation (“DOT”) after

attending the University of Illinois at Chicago for four

and a half years. Although she no longer worked on

truck duty, she retained the title of Motor Truck Driver.

In 2000, Hobbs received the responsibilities of Lot Super-

visor at the 103rd Street Lot. She served as the only

African-American or female Lot Supervisor in the DOT.

Many of Hobbs’s job duties as Lot Supervisor at the 103rd

Street Lot, including preparing time sheets and dealing

with Fleet Management, also were duties listed in the

Foreman’s job description. She appeared to be the daily

face of authority, but she was never paid as a foreman.

No one ever complained about Hobbs’s job performance.

In 1997 and in 2000, Hobbs applied for and interviewed

for the Foreman position, but both times a white male

received the job. In 2000, Defendant Joseph Senese was

chosen over Hobbs as Foreman. Then, in October 2004,

Hobbs learned that Defendant Pat Quinn, also a white

male, had received a promotion to Acting Foreman

three months earlier.

Quinn began working as a Motor Truck Driver in 1986,

and he worked as a Lot Supervisor on and off from 2002

No. 07-3591 3

to 2004. Quinn described himself as “computer illiterate,”

while Hobbs claimed to be computer proficient. In

2004, after Senese said he needed help supervising on the

street, the DOT’s new First Deputy Commissioner Brian

Murphy appointed Quinn as Acting Foreman on Senese’s

recommendation alone. Murphy did not consider Hobbs

for the position. Senese and Quinn had known each other

for thirteen years since their work together as Motor

Truck Drivers. Senese knew Quinn’s work ethic and that

Quinn had volunteered in the snow program for eight

years. Hobbs had only driven a snow plow once. The

DOT supervised the City’s Streets and Sanitation’s pro-

gram coordinating snow removal.

The City did not post the Acting Foreman position

to which Quinn was promoted because an “acting” posi-

tion is not considered a vacancy and need not be competi-

tively bid. The City’s union contract requires the City

to post a position after an individual is in the “acting”

position for more than 90 days, but the position may be

extended by mutual agreement of the parties. The federal

monitor in Shakman v. Democratic Organization of Cook

County, No. 69 C 2145 (N.D. Ill.), stated in a Decem-

ber 2007 report that the City has repeatedly taken ad-

vantage of the “acting” policy by allowing individuals

to move up to and stay in higher pay grade positions

for longer than 90 days, leading to unchecked politically

connected appointments in violation of the Shakman

decree, which bans the use of politics in City hiring. In

December 2006, the federal monitor removed Quinn

from the Acting Foreman position.

4 No. 07-3591

In January 2005, Hobbs filed a charge of discrimina-

tion against the DOT with the Illinois Department of

Human Rights and the EEOC, alleging the City denied her

a promotion to Foreman because of her race and gender.

According to Hobbs, word spread about the filed

charges. In April 2005, her supervisors reprimanded her

for violating a City policy by swiping out early. Hobbs

says other white male co-workers were not reprimanded

for more serious infractions, such as cursing at Quinn

and sleeping during work hours. On April 24, 2005, the

same day Hobbs received a notice of her disciplinary

hearing, Hobbs confronted Quinn about the swiping out

early infraction, and an argument ensued during which

Hobbs shouted at Quinn and alleged that he gave her

permission to swipe out early to pick up her daughter

from school. Quinn later testified in his deposition that

no other employee had ever cursed or shouted at him

and that the employee that slept on the job was disci-

plined. Quinn reported Hobbs for insubordination.

Hobbs eventually received an oral reprimand for

swiping out early, which was later rescinded. She also

received a three-day suspension for shouting at Quinn.

The deputy commissioner who presided over both of

Hobbs’s disciplinary hearings did not know about her

EEOC charge.

The day Hobbs received her disciplinary notice for

swiping out early, she alleges someone vandalized her

personal vehicle while it was parked in the secure DOT

parking lot. Hobbs claims she saw Quinn and another

white male employee standing next to her car twenty

No. 07-3591 5

minutes before the vandalism occurred. Hobbs com-

plained to Senese about the vandalism and accused

Quinn, but Senese allegedly dismissed Hobbs’s allega-

tions and did not investigate the complaint. Hobbs re-

ported the vandalism to in-house Construction Deputy

Commissioner William Cheaks, who told her he would

look into it and get the “heat” off of her, but never did.

Hobbs complains she was assigned work duties to

humiliate her and that Quinn and other white male

co-workers congregated outside her office door, which

intimidated her. Hobbs also alleges that her job duties

changed when Quinn became Acting Foreman. She

had been assigned to drive a truck only once from 1994 to

2002, but after November 2004, she received truck

driving responsibilities twenty times. Quinn allegedly

told others Hobbs had no authority to give drivers assign-

ments. On Christmas Eve 2005, Hobbs was assigned to

transport a truck across the city and then was told she

had the wrong truck and had to repeat the trip that day.

Quinn and Senese testified that they asked Hobbs to

drive only when there was a shortage of Motor Truck

Drivers and that driving is part of a Lot Supervisor’s

duties. On February 8, 2006, Senese told Hobbs her com-

mercial driver’s license was invalid, and as a result, she

lost a day of pay. But when she went to the Secretary of

State to clear up the matter, she was told the state had

never sent the City anything about her license and that it

remained valid. During discovery, the City presented a

Driver’s License Verification Action Status Report

dated February 6, 2006, with Hobbs’s name on it.

6 No. 07-3591

On July 13, 2006, Hobbs filed the instant lawsuit

alleging race and gender discrimination and retaliation

claims in violation of 42 U.S.C. § 1981 against all defen-

dants; race and gender discrimination and retaliation in

violation of Title VII against the City; a hostile work

environment claim against the City; and equal protection

claims against all defendants pursuant to 42 U.S.C. § 1983.

The district court granted the City’s motion to dismiss

the section 1981 race and retaliation claims and the

section 1983 claim against the City. The remaining

claims were Title VII race and gender discrimination and

retaliation claims against the city, section 1981 race dis-

crimination and retaliation claims and section 1983

equal protection claims against the individual defendants.

Hobbs appeals the district court’s grant of summary

judgment in favor of the defendants on all of the

claims except the equal protection ground.

II. ANALYSIS

We review the district court’s grant of summary judg-

ment de novo and view the facts and draw all inferences

in the light most favorable to the nonmoving party. Winsley

v. Cook County, 563 F.3d 598, 602 (7th Cir. 2009). A

district court properly grants summary judgment

where there is no genuine issue of material fact and

the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

No. 07-3591 7

A. The district court properly granted summary judg-

ment on Hobbs’s Title VII and section 1981 claims.1

Hobbs argues she suffered race and gender discrimina-

tion because the City failed to promote her, or even

consider her for promotion, to the position of Acting

Foreman in 2004. She proceeds on the indirect, bur-

den-shifting method set out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a

plaintiff successfully establishes a prima facie case of

discrimination by the indirect method if she shows that:

(1) she is a member of a protected class; (2) she is

qualified for the position; (3) she was rejected for the

position; and (4) the position was given to someone

outside the protected class who was similarly or less

qualified than she. Jackson v. City of Chi., 552 F.3d 619, 622

(7th Cir. 2009). The presumption of discrimination

created by establishing a prima facie case shifts the

burden to the defendant “to produce a legitimate,

noninvidious reason for its actions.” Atanus v. Perry, 520

F.3d 662, 672 (7th Cir. 2008). If the defendant rebuts

the prima facie case, the burden then shifts back to the

plaintiff to show that the reasons proffered by the defen-

dant are merely pretextual. Id.

Because the City does not contest the first three elements

of the prima facie case, we focus on the fourth prong.

1

We analyze Hobbs’s section 1981 and Title VII claims

together because they both require the plaintiff to prove the

same prima facie elements. See Antonetti v. Abbott Labs., 563

F.3d 587, 591 n.4 (7th Cir. 2009).

8 No. 07-3591

Hobbs asserts she was similarly or better qualified for

the position than Quinn because she had more ex-

perience as a Lot Supervisor, and she possessed

computer skills and a college education that Quinn did not.

We agree with the district court that Hobbs failed to

show that she was as qualified or more qualified than

Quinn. Commissioner Murphy appointed Quinn on the

recommendation of Senese, who knew Quinn and had

worked with him in the past on the streets and was

aware of Quinn’s work ethic because they had known

each other for thirteen years. Senese also recommended

Quinn for the job because of the latter’s experience in

the City’s snow program. Quinn had volunteered with

the snow program for years, while Hobbs had refused to

do so. Moreover, Quinn had at least two more years

experience than Hobbs as a Motor Truck Driver. Even

though Hobbs had more experience as a Lot Supervisor,

Senese was particularly interested in hiring someone

who could help him on the streets. Hobbs further

suggests that she was better qualified because she

attended college and was computer proficient, while

Quinn had neither qualification. That may be true, but it

does not help Hobbs because college education and

computer skills were not part of the job qualifications for

Acting Foreman.

Hobbs posits that because the City deviated from its

formal written procedures of posting the Acting

Foreman position as a vacancy, a prima facie case of

discrimination must be presumed. Hobbs relies on Loyd

v. Phillips Bros., Inc., 25 F.3d 518 (7th Cir. 1994), for the

No. 07-3591 9

proposition that since the City deviated from its policy,

she must show only that “but for such a practice she

likely would have been approached” and that if ap-

proached, she would have accepted the position. Loyd, 25

F.3d at 523. But Hobbs’s reliance on Loyd is misplaced

because Loyd instructs that if an employer disregards

an application process, the employer cannot defeat a

plaintiff’s prima facie case by arguing that the plaintiff

did not apply for a position. The employee must still meet

the fourth prong of the prima facie case and prove her

superior qualifications. See id.; see also Fischer v. Avanade,

Inc., 519 F.3d 393, 402 & n.2 (7th Cir. 2008). The City

conceded that Hobbs expressed interest in the position, so

the real inquiry is whether Hobbs was better qualified

than Quinn, and as explained above, Hobbs failed to

show her qualifications equaled or surpassed Quinn’s.

See Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527,

533 (11th Cir. 1992) (deciding that because the em-

ployer failed to post the opening or accept applications,

the plaintiff did not need to show that he applied, but he

still needed to show that he was more qualified for

the position in order to establish a prima facie case of

discrimination).

Even if Hobbs satisfied the prima facie case, the City has

offered nondiscriminatory reasons for promoting Quinn,

which Hobbs failed to show are pretextual. “Pretext is a

‘lie, specifically a phony reason for some action.’ ” Sublett

v. John Wiley & Sons, Inc., 463 F.3d 731, 737 (7th Cir. 2006)

(quoting Russell v. Acme-Evans, Co., 51 F.3d 64, 68 (7th

Cir. 1995)). To demonstrate pretext, Hobbs must show:

(1) the City’s “nondiscriminatory reason was dishonest”;

10 No. 07-3591

and (2) the the City’s “true reason was based on a dis-

criminatory intent.” Fischer, 519 F.3d at 403 (internal

quotation marks and citation omitted).

Hobbs did not show that the City lied about its

reasons for promoting Quinn. As evidence, Hobbs asserts

that the Department of Streets and Sanitation, not the

DOT, runs the snow program 2 and that Senese never

said he needed help on the streets prior to promoting

Quinn. But Hobbs is mistaken on both counts. Quinn

volunteered to work the snow program, while Hobbs

refused to do so, which demonstrated to Senese Quinn’s

willingness to work on the streets—one of the qualities

Senese was looking for in an Acting Foreman. The

City refuted Hobbs’s contention that Senese lied about

needing more help when it showed that in the summer

of 2004, Murphy questioned Senese about why he was not

completing certain tasks and Senese explained he needed

help. Hobbs also asserts that Murphy acted as Senese’s

cat’s paw when he appointed Quinn, but we fail to see

how that assertion proves pretext.

Hobbs further argues that the district court erred

because it improperly required her to demonstrate

2

Hobbs also asserts that the timing of Quinn’s promotion

shows the City’s snow program explanation is a lie. Quinn

was appointed in August, and if the City had followed the 90-

day rule regarding appointments to Acting positions, his

appointment would have ended in November, before the

beginning of the winter season. This argument fails because

the City’s Union Contract allowed for the extension of the 90-

day period by mutual agreement of the parties.

No. 07-3591 11

both pretext and discriminatory animus. Hobbs is incor-

rect. Our recent Title VII cases explain that a plaintiff

demonstrates pretext by showing the employer’s

proffered nondiscriminatory reason is a lie and the real

reason is based on discriminatory intent. See, e.g., Fischer,

519 F.3d at 403; Brown v. Ill. Dep’t of Natural Res., 499

F.3d 675, 683 (7th Cir. 2007); Keri v. Bd. of Trs. of Purdue

Univ., 458 F.3d 620, 646 (7th Cir. 2006) (“In a word, the

Plaintiff must establish that . . . [the employer’s] reasons . . .

were merely made up to cover up . . . discriminatory

reasons.”). That is precisely what the district court

required of Hobbs, but she failed to prove either. Hobbs’s

mere assertion that she is better qualified will not do

the trick to prove the City is lying about the real

reason it picked Quinn for the spot. Evidence of Hobbs’s

qualifications only would serve as evidence of pretext if

the differences between her and Quinn were “so

favorable to the plaintiff that there can be no dispute

among reasonable persons of impartial judgment that

the plaintiff was clearly better qualified for the position

at issue.” Mlynczak v. Bodman, 442 F.3d 1050, 1059-60

(7th Cir. 2006) (quoting Millbrook v. IBP, Inc., 280 F.3d 1169,

1180 (7th Cir. 2002)).

Moreover, Hobbs has not shown that the City’s real

reason for picking Quinn was race or gender discrimina-

tion. Hobbs maintains there are no African-American or

female Foremen—while a City supervisor testified that

there were three African-American General Foremen—but

she did not support her contention with admissible

evidence. See Sublett, 463 F.3d at 739 (plaintiff failed to

support her claim that defendant’s alleged failure to

12 No. 07-3591

promote any African Americans was circumstantial

evidence of pretext with sufficient information about

the relevant applicant pool). We also note that Hobbs

did not raise a disparate impact claim.

Hobbs also put forth no personal knowledge of racial

or sexist statements or conduct in her attempt to demon-

strate pretext. Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.

1996) (“An employer’s knowledge that the plaintiff is a

member of a protected class is obviously not enough to

cast doubt on that employer’s proffered reason for re-

jecting a candidate. . . .”). Hobbs testified in her

deposition that she never heard anyone in the depart-

ment make derogatory comments about African Ameri-

cans. She also testified that Senese on occasion told her

to send drivers home because they could not drive a stick.

Hobbs assumed Senese meant women, but could not

remember if he actually used the word “women.” She

also stated that a co-worker told her Quinn made com-

ments about not assisting women get jobs. But Hobbs

could not point to any derogatory remarks made

about women in her presence.

Although the process through which Quinn received

his promotion might be questionable, it does not prove

gender or race discrimination. It might suggest favoritism

on some other basis, and in fact, the federal monitor

removed him from the Acting Foreman position. That

Hobbs did not believe Quinn deserved the job is not

enough to survive summary judgment. See Blise v.

Antaramian, 409 F.3d 861, 867 (7th Cir. 2005) (“[The court

does] not sit as a superpersonnel department where

No. 07-3591 13

disappointed applicants or employees can have the

merits of an employer’s decision replayed to determine

best business practices.”) (internal quotation marks

and citation omitted). Therefore, we affirm the district

court’s grant of summary judgment in favor of the defen-

dants on Hobbs’s Title VII and section 1981 claims.

B. Hobbs’s retaliation claim fails.

Hobbs further argues she proved through the direct

method that the City took adverse actions against her

in retaliation for her discrimination complaints with the

EEOC and the Illinois Department of Human Rights.

Title VII protects employees from retaliation as a result

of their discrimination complaints. See 42 U.S.C.

§ 2000e-3(a). Under the direct method of proof, the only

method at issue here, a plaintiff must show that: (1) she

engaged in statutorily protected activity; (2) she suffered

a materially adverse action taken by the employer; and

(3) there was a causal connection between the two.

Humphries v. CBOCS West, Inc., 474 F.3d 387, 404 (7th Cir.

2007). The adverse act must be such that it would “dis-

suade a reasonable employee from making or sup-

porting a claim of discrimination.” Burlington N. and

Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). There is no

dispute that Hobbs has satisfied the first prong, but

we conclude her claim fails to meet the other two remain-

ing prongs.

Hobbs offers several grounds for her retaliation claim.

First, Hobbs says she was orally reprimanded and sus-

14 No. 07-3591

pended for three days following two disciplinary

hearings, but she has failed to establish a causal connec-

tion because the commissioner who disciplined her

did not know Hobbs filed the EEOC charge. See Tomanovich

v. City of Indianapolis, 457 F.3d 656, 668 (7th Cir. 2006)

(to establish retaliation for a discrimination complaint,

the employer must have actual knowledge of the com-

plaint).

Hobbs also argues she was stripped of the authority

she had enjoyed as Lot Supervisor and was given undesir-

able assignments, such as driving on twenty different

occasions when she had been given a driving assign-

ment only once in the ten years prior to her complaints.

Therefore, her only argument concerns assignments

that were clearly within her job duties. She did not point

to any evidence that she suffered loss of a job title or

received less pay.3 A materially adverse action must be

“more disruptive than a mere inconvenience or an alter-

ation of job responsibilities.” Nagle v. Vill. of Calumet Park,

554 F.3d 1106, 1120 (7th Cir. 2009) (quoting Crady v. Liberty

Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th

Cir. 1993)). The change in Hobbs’s job duties correlates

temporally to Quinn’s promotion rather than to her

discrimination complaints. Prior to Quinn’s appoint-

3

Hobbs retained the title of Motor Truck Driver, but was one

of the Motor Truck Drivers in her yard that also had the

extra duty of being a Lot Supervisor. Lot Supervisors do not

receive extra pay, but perform supervisory duties, such as

relaying daily work assignments, checking equipment and

driving a truck when needed.

No. 07-3591 15

ment, Hobbs supervised daily truck operations and

drivers and handed out assignments. Once Quinn took

over as Acting Foreman, he assumed these responsibi-

lities. Quinn’s elevation—not Hobbs’s complaints—was

the reason her responsibilities changed.

Hobbs also suggests that she suffered intimidation

when several white male co-workers congregated outside

her office to talk. She also takes issue with the City requir-

ing proof of a valid commercial driver’s license. Neither

of these qualify as adverse actions. Workers were

allowed to be in the area outside her office, which

she shared with about five other people. Also, the City

requires proof of a valid commercial driver’s license for

all Motor Truck Drivers. During discovery, the City

provided the document that showed Hobbs was listed

as one of the driver’s whose license needed to be verified.

Hobbs’s final basis for her retaliation claim—the failure

to investigate her car vandalism—is more troubling.

Damaging one’s property is a serious allegation, and

Hobbs argues Senese told her he could not talk to her about

the vandalism because of her discrimination complaint.

However, Senese knew he was named in the charge and

his own conduct was being investigated by the EEOC. It

would have been odd for Senese—the very person Hobbs

was complaining about—to investigate her allegation.

Hobbs then went to Commissioner Cheaks, who also

did not investigate her accusation. However, Hobbs

presented no evidence that Cheaks actually knew about

her EEOC charge. See Tomanovich, 457 F.3d at 668. The

mere fact that the vandalism occurred after the EEOC

16 No. 07-3591

charge and the same day that Hobbs received notifica-

tion of a disciplinary action is not enough to survive sum-

mary judgment. See Amrhein v. Health Care Serv. Corp., 546

F.3d 854, 859 (7th Cir. 2008) (“suspicious timing alone

is generally insufficient to establish a genuine issue of

material fact for trial”). So, the district court properly

granted summary judgment on Hobbs’s retaliation claim.

C. Hobbs’s hostile work environment claim also fails.

Finally, Hobbs argues she suffered a hostile work

environment, based on the same facts she set out for her

retaliation claim. The conduct complained of must be

severe or pervasive “so as to alter the conditions of [the

employee’s] environment and create a hostile and abusive

working environment.” Winsley, 563 F.3d at 606 (quoting

Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1043

(7th Cir. 2000)). Retaliatory harassment can rise to the

level of a hostile work environment “if it is severe

enough to cause a significant change in the plaintiff’s

employment status.” Stutler v. Ill. Dep’t of Corrs., 263

F.3d 698, 703 (7th Cir. 2001).

Here, the facts do not rise to the level of the severe

or pervasive threshold. See Walker v. Mueller Indus., Inc.,

408 F.3d 328, 333-34 (7th Cir. 2005). No reasonable jury

could conclude that being assigned duties that were

part of one’s job description and having co-workers con-

gregating outside of a shared office amount to a hostile

work environment. The alleged vandalism of Hobbs’s

car and the failure to investigate it is disgraceful, but

that one act alone is not egregious enough to create a

No. 07-3591 17

hostile work environment. Saxton v. Am. Tel. & Tel. Co.,

10 F.3d 526, 533 (7th Cir. 1993) (“relatively isolated in-

stances of non-severe misconduct will not support a

hostile environment claim”) (internal quotation marks

omitted).

The district court properly granted summary judg-

ment on Hobbs’s hostile environment claim.

III. CONCLUSION

Therefore, we AFFIRM the district court’s grant of sum-

mary judgment to defendants.

7-21-09