# Gary Millbrook v. Ibp, Inc. > Court of Appeals for the Seventh Circuit · February 20, 2002 · 280 F.3d 1169 URL: https://www.frixlaw.com/law-library/cases/9494774 ## Case - **Full name:** Gary MILLBROOK, Plaintiff-Appellee, v. IBP, INC., Defendant-Appellant - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** February 20, 2002 - **Citations:** 280 F.3d 1169; 82 Empl. Prac. Dec. (CCH) 40,991; 88 Fair Empl. Prac. Cas. (BNA) 297; 2002 U.S. App. LEXIS 2597; 2002 WL 239090 - **Precedential status:** Published - **Opinion:** Dissent by Evans - **Judges:** Bauer, Manion, Evans - **Cited by:** 263 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494774 ## How later opinions describe it (automated extraction) - explaining that, even if the plaintiff had produced evidence of pretext, that evidence alone (Continued) 11 III. For the foregoing reasons, we affirm the district court’s entry of summary judgment in favor of the School Board. AFFIRMED would not entitle the plaintiff to a jury… - holding that evidence of plaintiffs competing qualifications does not constitute evidence of pretext unless those differences are “so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qu… - holding that differences in qualifications do not demonstrate pretext “unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at iss… - finding evidence of applicants’ competing qualifications does not constitute evidence of pretext “unless differences are so favorable to plaintiff that there can be no dispute among reasonable persons of impartial judgment that plaintiff was clearly better qualified for the po… - explaining that, even if the plaintiff had produced evidence of pretext, that evidence alone would not entitle the plaintiff to a jury determination because "[tjhere is absolutely no other evidence of intentional discrimination — not one racist comment, nor any harassment.” ## Opinion text TERENCE T. EVANS, Circuit Judge, dissenting. I respectfully dissent. A jury listened to evidence of eight instances in which Millbrook failed to receive a promotion. He claimed the rejections were because of his race; the company contended that in each instance the candidate promoted was better qualified. A properly instructed jury looked at this evidence and concluded, apparently, that in seven of the cases Mill-brook had not met his burden of proof; the person promoted could be seen as better qualified. In the eighth, the jury found that discrimination was afoot. In this appeal of that verdict, the issue, according to the majority, is whether Millbrook was so notably better qualified than Harris that, absent other evidence, the choice to hire Harris over promoting Millbrook must have been discriminatory. Discrimination today is rarely overt. Sometimes it works underground. It is often very subtle. In today’s environment, it is unfair to require plaintiffs to produce smoking guns. So, in a case like this, how much additional evidence are we going to require to bolster the claim of a marginally better, or at least equally qualified, plaintiff who claims discrimination stopped him from getting a promotion? And here, I question whether it is fair to say that, in fact, there was an absence of other evidence. The jury had a broad view of the company’s actions as it related to eight employment decisions, not just one. It had evidence, for instance, that no African-Americans were hired in relevant positions in a 2-year period during 1996 and 1997. I believe that there was sufficient evidence to allow a reasonable jury to conclude that overall the company consistently chose the white candidate, and that in the case of Harris (who, unlike the other seven, may not have seemed to the jury to be the better candidate), the company’s claim that it picked the better candidate without regard to race was a pretext to cover discriminatory behavior. During the course of a trial, jurors listen to witnesses, pass judgment on their credibility, and, in this kind of case, absorb something about the culture of a company; they are pretty good at bringing their common sense to bear on questions of human behavior. This is what juries are for, and in the close case, as this one indisputably is, the jury’s judgment should be respected unless no reasonable person could have found as it did. And this jury, it seems, was so convinced that racial discrimination prevented Millbrook from getting the promotion that it tacked on, in its discretion, an award of punitive damages. Accordingly, I would not disturb the jury’s verdict. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494774. Public record. Not legal advice.