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analyzing plaintiff's Title VII race discrimination claim
Summary of this case from ROCKWOOD v. ATT WIRELESS SERVICES, INC. (S.D.Ind. 2006)Opinion
Case No. 1:03-cv-0522-DFH-TAB.
November 9, 2004
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff George Weah was a part-time employee at the Trader Joe's grocery store number 670 in Indianapolis. Weah has alleged that Trader Joe's Corporation discriminated against him by repeatedly passing him over for promotions to full-time positions because of his race and national origin, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Defendant Trader Joe's has moved for summary judgment. For reasons explained below, the court denies defendant's motion for summary judgment. Weah has identified a genuine issue regarding whether defendant's explanation for not promoting him to a full-time staff position is pretextual.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Only "genuine" disputes over "material facts" can prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law, and a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes. However, the existence of some metaphysical doubt does not create a genuine issue of fact. "A party must present more than mere speculation or conjecture to defeat a summary judgment motion." Liberty Lobby, 477 U.S. at 252; Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001); Sybron Transition Corp. v. Security Insurance Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997).
When deciding a motion for summary judgment, the court must decide whether the evidence presents a disagreement sufficient to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Packman, 267 F.3d at 637. The court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The court should neither "look the other way" to ignore genuine issues of material fact nor "strain to find" material factual issues where there are none. Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1363-64 (7th Cir. 1988).
Undisputed Facts
The relevant facts are set forth here in the light reasonably most favorable to Weah as the party opposing summary judgment. All reasonable inferences have been drawn in his favor; nonetheless, adverse facts established by the defendant beyond reasonable dispute are necessarily included in the narrative.
Defendant Trader Joe's Corporation is a grocery store chain with over 200 stores throughout the United States. The company has two stores in Indiana, both in Indianapolis, referred to as store #670 and store #671.
Plaintiff George Weah is from Liberia, and has lived in the United States since 1970. Weah began working in store #670 when it opened in January 2001. When Weah began working at Trader Joe's, there were "a few other blacks" employed there in part-time positions, but as of the end of 2002 there were no blacks employed in either store #670 or store #671. Weah Aff., ¶ 8. Weah does not clarify whether there were no other blacks employed in both part-time and full-time positions, or simply no other black part-timers employed.
Job positions at a Trader Joe's are divided into full-time management, full-time staff, and part-time crew member positions. Full-time management positions include in ascending order of rank Second Mate, First Mate, Commander, and Captain. The Captain ( i.e., store manager) and Commander are the primary managers of the store; everyone else reports to them, and they report to the Regional Vice President. Full-time ( i.e., 40 hour) staff positions include in ascending order of rank Novitiate, Specialist, and Merchant. A Novitiate is involved in "the training phase of operations at the store, administrative duties of the store, learning how to manage people." L'Africain Dep. at 18. Part-time crew members, the lowest-ranked employees at Trader Joe's, work a maximum of 35 hours per week. Def. Ans. to Pl. First Interrogatories, ¶ 6; Weah Aff., ¶ 6. An employee must be promoted to the Novitiate level before being considered for further promotions.
Another position classified by Trader Joe's as part-time is that of Key Carrier. The Key Carrier has a key to the cash register and can make adjustments on the registers to correct mistakes and to enter refunds or employee discounts. The Key Carrier's responsibilities also include assisting customers and helping to "keep the front end of the store running smoothly." Dillaway Aff., ¶ 6. The parties dispute whether this position actually is full-time or part-time, but in any event the Key Carrier is typically scheduled to work 40 hours per week. Def. Ans. to Pl. First Interrogatories, Q. 6.
Sue L'Africain was the Regional Vice President of Trader Joe's for the region that includes the Indiana stores. L'Africain Aff., ¶¶ 3-5. Michael Dillaway was the manager of store #670 from January 2001 to May 2003, at which time Troy Willett took over as manager. Dillaway Aff., ¶ 4; Weah Aff., ¶¶ 9, 26. Andy Sencenich was the manager of store #671 from the time that store opened. Troy Willett also worked as First Mate at store #671 under Sencenich for seven or eight months during 2002-03.
One of Weah's duties during his first year at store #670 was to work in the "dairy box." The dairy box is a refrigerator behind the shelves of refrigerated products. During the final three hours of his daily shift, Weah transferred dairy products from the loading dock into the dairy box and rotated the stock. Weah Dep. at 55-61. Another of Weah's duties was to mop floors. Weah Dep. at 37-38, 66. Although Weah observed that other employees mopped the floor in pairs, during a two to three week period Weah was required to mop the floor alone. Id. Weah would sometimes volunteer to work in the dairy box and to help mop the floor. Weah Dep. at 38, 66. He did not indicate to anyone that he was unhappy with those assignments. Id. at 38, 64.
In July 2001, Weah's supervisor, Damian Stevenson, referred to Weah as "boy." Def. Ans. to Pl. First Interrogatories, Q. 1; Weah Dep. at 24. Weah was in the dairy box when Stevenson came behind him and said, "Yes, boy, that's how I like to see my box looking." Weah Dep. at 24-25. Weah told several managers including Dillaway about the incident. Each said that it was not right for Stevenson to call him "boy." Weah Dep. at 25-26. On approximately March 1, 2002, Stevenson was "verbally coached" by his superiors about the incident. Def. Ans. to Pl. First Interrogatories, Q. 1.
On another occasion, Weah was near the store office when he heard an employee, Elizabeth Bertrand, say to assistant manager Jon Jackson: "Jon, you need to take George and use him as your back-room slave." Weah Dep. at 27-28. After the incident Jackson and Bertrand apologized to Weah. Weah Dep. at 30-31. Regional Vice President L'Africain came to the store about a week later. She apologized to Weah for the incident and said that she suspended Bertrand for a week. Weah Dep. at 31-32. Weah also described two other incidents which he described as offensive: being nicknamed "Lion" by other employees, about which he never complained to management, Weah Dep. at 32, 33-34, and being yelled at by Bertrand, which he later discussed with Troy Willett, id. at 34-35.
A part-time employee at Trader Joe's applies for a promotion by orally informing the Captain or First Mate of the employee's interest in promotion. There is no written application for a promotion to Novitiate. Willett Dep. at 12. Trader Joe's does not have a formal policy requiring promotion from the ranks of its employees but "in general seeks to promote from the ranks of its own employees. The vast majority of Novitiate positions are filled by part-time crew members." Def. Ans. to Pl. First Interrogatories, Q. 7.
As positions become available, the Regional Vice President solicits recommendations for promotions from the store managers within the applicable region. Def. Ans. to Pl. First Interrogatories, Q. 2. Although the Regional Vice President makes the ultimate decision to promote an employee, the store manager plays an important role in the promotion process. Troy Willett described his role as store manager in this process: "I give Sue [L'Africain] feedback based upon evaluations for myself and my assistant manager, as well as feedback from our Merchants, Specialists or Novitiates in our store. We look at attendance, we look at performance reviews, customer experience. . . ." Willett Dep. at 13. The Regional Vice President will consider a candidate for promotion only based upon a recommendation given to her by a store manager. L'Africain Dep. at 29-30.
Store managers base their recommendations for promotion partly on performance reviews. Willett Dep. at 13; Dillaway Aff., ¶¶ 14-19. Store managers review part-time crew members every two to three months. Willett Dep., Pl. Exs. 1-11. Novitiates, Specialists, and Merchants oversee part-time crew members, and they also "input scores and give feedback for part-time reviews." L'Africain Dep. at 18-19. Second and First Mates evaluate and oversee part-time crew members as well as full-time staff members. L'Africain Dep. at 19. A Captain, Commander, First or Second Mate, or Merchant may prepare the evaluation documents. Willett Dep. at 29. Each review is signed by the employee and a reviewer. The reviewer reads the evaluation to the employee, even though the reviewer may not be the person who prepared the evaluation. Willett Dep. at 30. As of January 2003, a part-time employee was scored on three factors in the evaluation form: skill in helping and relating to customers, productivity and quality of work performed, and ability to work as part of a team. Willett Dep., Pl. Exs. 8-11. Each of these main factors has three or four sub-components which are scored from 1 to 5 by the full-time employees in the store. Willett Dep., Pl. Exs. 8-11; Willett Dep. at 33. The average score for each main factor is calculated from these sub-component scores, and the overall score for the employee is the average over the three main factors. Willett Dep., Pl. Exs. 8-11.
Weah first expressed to Willett and Dillaway his interest in a full-time Novitiate position in January 2002. Weah Dep. at 39, 41; Weah Aff., ¶ 9; Dillaway Aff., ¶ 9. Between January 2001, when Weah began working at Trader Joe's, and September 2003, several white non-Africans were promoted or hired into Novitiate positions in store #670, whereas Weah was not promoted. Amy Stamper was hired as a part-time crew member in January 2001 and was promoted to Novitiate in March or April 2001. Jed Britenriker was hired as a part-time crew member in September 2001 and was promoted to Novitiate in April 2003. Elizabeth Bertrand was hired as a part-time crew member in March 2001 and was promoted to Novitiate in October 2001. Greg Towns was hired as a part-time crew member in November 2002 and was promoted to Novitiate in September 2003. Stamper, Britenriker, Bertrand, and Towns are all white non-Africans.
Plaintiff focuses particularly on Jeffrey Schwind, also a white non-African. Schwind was hired at store #671 on November 19, 2002 as a part-time crew member. On April 28, 2003, Schwind was promoted to Novitiate and transferred from store #671 to store #670. Willett Dep., Pl. Ex. 21. He was transferred back to store #671 on September 15, 2003. Id. Andy Sencenich was the manager of store #671 at the time of Schwind's promotion and transfer. Willett Dep. at 50. The treatment of Schwind is discussed in detail below.
Weah also applied for the position of Key Carrier. Weah Dep. at 45-47, 68-69. By January 2003, Weah had indicated to Dillaway and Jon Jackson, the assistant manager of store #670, his interest in the position. Weah Aff., ¶ 12; Dillaway Aff., ¶ 9. Olaf Blase, who was hired as a part-time crew member in September 2001, was placed in the Key Carrier position in February 2003. Def. Ans. to Pl. First Interrogatories, Q. 13; Weah Aff., ¶¶ 14-15, 19; Dillaway Aff., ¶¶ 9, 12-14; Willett Dep., Pl. Ex. 21. Blase also is a white non-African. Additional facts are noted below as needed, keeping in mind the standard that applies on a motion for summary judgment.
Weah asserts that Troy Willett was assistant manager of store #670 when Weah was passed over for the Key Carrier job, and that Blase was given the Key Carrier position in "February 2002." See Weah Aff., ¶¶ 14, 26. However, this promotion apparently occurred in February 2003. See Weah Aff., ¶ 12; Dillaway Aff., ¶ 9.
Discussion
Weah's principal claim, and the focus of his reply brief, is that Trader Joe's discriminated against him based on his race and national origin by denying him promotion. He points to white non-Africans who were promoted or hired into several Novitiate positions and one Key Carrier position for which he had applied. Weah has raised a genuine issue of fact as to whether defendant discriminated against him on the basis of race or national origin when it promoted Schwind to a position that Weah was seeking.A plaintiff may try to prove disparate treatment under Title VII by the direct method or the indirect burden shifting method. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 938-39 (7th Cir. 2003). Weah attempts to use both.
Weah's complaint includes 42 U.S.C. § 1981 claims, but the applicable legal standards are the same under Title VII and § 1981. Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1035 (7th Cir. 1998). The court's analysis and conclusions apply to both Weah's § 1981 claim and his Title VII claim.
I. Disparate Treatment — Direct Method
Under the direct method, a plaintiff must show that the employer's decision was motivated by an impermissible purpose, such as race or national origin. Adams v. Wal-Mart Stores, 324 F.3d at 938-39; Walker v. Glickman, 241 F.3d 884, 888 (7th Cir. 2001); Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). A plaintiff can show this using either direct or circumstantial evidence. Adams v. Wal-Mart, 324 F.3d at 938-39. Without direct or circumstantial evidence of discrimination, the plaintiff must proceed by way of the indirect route. Adams v. Wal-Mart, 324 F.3d at 939.
Direct evidence is evidence "which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption." Walker v. Glickman, 241 F.3d at 888, n. 3, quoting Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). An example of direct evidence is a (rare) acknowledgment of discriminatory intent by the employer. Logan v. Kautex Textron North America, 259 F.3d 635, 638 (7th Cir. 2001); Troupe, 20 F.3d at 736. Circumstantial evidence of discrimination may include (1) "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group;" (2) evidence that "employees similarly situated to the plaintiff other than in the characteristic . . . on which an employer is forbidden to base a difference in treatment received systematically better treatment;" (3) evidence that "the plaintiff was qualified for the job in question but passed over in favor of . . . a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination." Troupe, 20 F.3d at 736. Circumstantial evidence also "must point directly to a discriminatory reason for the employer's action." Adams v. Wal-Mart, 324 F.3d at 939; see also Logan, 259 F.3d at 638-39 (stating that without direct evidence of discrimination, the plaintiff "must offer circumstantial evidence sufficient to provide a basis for drawing an inference of intentional discrimination").
Plaintiff Weah contends that the record evidence provides circumstantial evidence of intentional discrimination under the direct method of proof. Weah offers the following as circumstantial evidence of discrimination: (1) Bertrand's statement to Jackson telling him to use Weah as a "back-room slave;" (2) Stevenson's reference to Weah as "boy;" (3) Weah's claim that he was required to work in the dairy box for an entire year, while no white employee was required to work in the box for nearly that long; (4) Weah's claim that no white part-time crew members were required to mop the floor alone although he was required to do so for several weeks; (5) defendant's claim that Schwind was promoted in store #671, although defendant transferred him on the same day to store #670; and (6) the promotion of six white part-time employees hired after Weah in store #670, several of whom, according to Weah, had attendance and other performance problems.
These facts do not present a genuine issue of material fact sufficient to support proof under the direct method. First, Bertrand's statement telling Jackson to use Weah as a "back-room slave" and Stevenson's reference to Weah as "boy" are not linked to any decision maker responsible for either promoting employees or recommending them for promotion. Even if a plaintiff can show that someone employed by the defendant was bigoted, he must also produce evidence linking the bigotry to the employment action or decision-making process at issue. Adams v. Wal-Mart, 324 F.3d at 939 (stating that "[b]igotry, per se, is not actionable" and is actionable only if there is "a real link between the bigotry and an adverse employment action"); Logan, 259 F.3d at 639 (concluding that a coworker's comment about lynching blacks, offered by plaintiff as circumstantial evidence of discrimination, did not support a finding of discriminatory discharge because the comment was not "causally related to the decision making process"). Although Bertrand and Stevenson were full-time staff who might have had some relatively minor input into Weah's performance evaluation scores, see Willett Dep. at 33-36, there is no evidence that they had substantial input into promotion recommendations or decisions, which were the province of higher-level managers and the Regional Vice President. In fact, those higher-level managers and Ms. L'Africain apologized to Weah for the actions of Bertrand and Stevenson.
Second, assuming that Weah's claims that white employees had not been required to work the dairy box for a year or to mop the floor alone for several weeks are true, Weah again fails to show a link between these claims and a relevant employment action or decision-making process. See Adams v. Wal-Mart, 324 F.3d at 939; Logan, 259 F.3d at 639. In addition, Weah admits that he would sometimes volunteer to work in the dairy box and to help mop the floor, and he did not indicate to anyone that he was unhappy with those assignments. Third, the promotions of Schwind and other employees do not "point directly to a discriminatory reason for the employer's action." Wal-Mart, 324 F.3d at 939. These promotions, however, are relevant for Weah's claim of pretext under the indirect burden shifting method.
II. Disparate Treatment — Indirect Method
To establish a prima facie case of discrimination under the indirect method of proof, Weah must come forward with evidence tending to show that: (1) he belongs to a protected group; (2) he applied for and was qualified for the positions sought; (3) Trader Joe's rejected him for the positions; and (4) the employees whom Trader Joe's promoted to the positions were not in the protected group and were not better qualified than Weah. Johnson v. Nordstrom, 260 F.3d 727, 732 (7th Cir. 2001); Bell v. Environmental Protection Agency, 232 F.3d 546, 549 (7th Cir. 2000). If Weah establishes a prima facie case, the burden shifts to Trader Joe's to articulate a legitimate, non-discriminatory reason for its employment action. Johnson, 260 F.3d at 731-32; Bell, 232 F.3d at 550. If Trader Joe's meets its burden of production, the burden shifts back to Weah to present evidence tending to show that the reason offered by Trader Joe's is merely a pretext for discrimination. Id. If Weah produces evidence of pretext, a jury could infer discrimination.
Weah argues that Trader Joe's "systematically treated similarly situated white employees better" than it treated him, and that Trader Joe's promoted to Novitiate or Key Carrier in store #670 six white part-time employees hired after Weah. The six were Amy Stamper, Elizabeth Bertrand, Jed Britenriker, Gregory Towns, Olaf Blase, and Jeffrey Schwind.
Trader Joe's responds by contesting Weah's prima facie case and by offering non-discriminatory reasons for promoting or hiring the other employees and not Weah. Trader Joe's challenges the prima facie case in two ways. First, it claims that the Key Carrier position is not a promotion from part-time crew member or a stepping stone to promotion. Second, Trader Joe's contends: "Although Jeff Schwind was promoted to full time [N]ovitiate and then transferred to store #670, there was no available position in store #670 because he merely exchanged positions with an individual that was already a full time staff member in that store." Def. Reply Br. at 8. The non-discriminatory reasons offered by Trader Joe's for its employment actions are essentially that the white employees promoted or hired instead of Weah were more qualified. Weah contends that defendant's proffered reasons are merely pretext.
Trader Joe's challenge to Weah's relative qualifications for Novitiate and Key Carrier, as well as its contentions that the Key Carrier position was not a promotion and that Weah and Schwind did not compete for an open Novitiate position, must be addressed within the context of Weah's charge of pretext. The Seventh Circuit has recognized that in some cases, the elements of the prima facie case may coincide with the defendant's articulated justifications for the employment action. When that occurs, the court cannot weigh plaintiff's prima facie evidence without simultaneously considering the veracity of defendant's offered non-discriminatory explanations. See Johnson, 260 F.3d at 732 (concluding that the court need not decide whether the factors cited by the district court below actually show that plaintiff was not qualified for the position sought, because "these are the reasons proffered by Nordstrom for failing to promote Johnson, and . . . Johnson has failed to demonstrate that these reasons are pretextual"); EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145, 150 (7th Cir. 1996) ("To expedite the process it may be preferable to get past the prima facie case and examine the pertinent issue of whether there was discrimination in a job action."). This is such a case.
Simply put, the question before this court is whether a reasonable jury or trier of fact could conclude that race or national origin motivated Trader Joe's decision not to make Weah a Novitiate or Key Carrier. See Gordon v. United Airlines, Inc., 246 F.3d 878, 893 (7th Cir. 2001) (Easterbrook, J., dissenting). The framework of the McDonnell Douglas inquiry was never intended to obscure that fundamental question. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) ("The prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic."). Therefore, the court moves directly to the analysis of pretext as it applies to Trader Joe's reasons for promoting the six white, non-African employees with whom Weah compares himself.
To meet his burden on the issue of pretext, Weah need not prove at this stage that it is more likely than not that the real reasons for Trader Joe's actions were discriminatory. Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995). Rather, Weah can defeat summary judgment with evidence tending to show that his employer's explanations are not worthy of belief. O'Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002). Weah need only produce evidence from which a rational fact finder could infer that the company's offered non-discriminatory reasons for its employment actions are lies. "If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may reasonably be drawn." Bell, 232 F.3d at 550, quoting Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994). Thus, evidence that calls into question the employer's truthfulness precludes summary judgment. Bell, 232 F.3d at 550; Perdomo, 67 F.3d at 145.
As explained below, pretext is not suggested by the promotions of Stamper, Bertrand, Britenriker, Towns, or Blase. However, Weah has met his burden to present evidence tending to show that Trader Joe's explanations regarding the promotion and transfer of Schwind are pretextual, thus precluding summary judgment for defendant.
A. Stamper and Bertrand
Amy Stamper and Elizabeth Bertrand are not valid comparitors because they were promoted to Novitiate in 2001, before Weah applied for a promotion to Novitiate. These promotions might have had probative value if Weah had presented statistical evidence that Trader Joe's systematically promoted white non-African part timers who had applied for promotions, or that Trader Joe's denied promotions to black or African part timers more frequently than it denied them to white non-Africans. Bell, 232 F.3d at 552-53; Caro v. Principi, 2002 U.S. Dist. Lexis 22690, *19-21, 2002 WL 31654939, *6 (N.D. Ill. Nov. 22, 2002). Although Weah lists several white non-Africans promoted instead of him, he does not attempt to establish a statistical pattern of promotions in which he or other blacks were anomalies.
B. Britenriker and Towns
Unlike Stamper and Bertrand, Jed Britenriker and Gregory Towns are valid comparitors. Defendant contends that Britenriker and Towns, who were promoted to Novitiate in April and September 2003, respectively, were the most qualified candidates for the positions. According to defendant, Britenriker had higher evaluation scores than Weah over the six month period prior to the promotion, and Towns was recommended over Weah "based upon information and product knowledge, customer satisfaction and [evaluation] scores." Def. Br. at 21.
Weah does not dispute defendant's explanation that Britenriker had higher evaluation scores or that Towns exhibited better product knowledge, customer satisfaction, and scores. Weah maintains, however, that these employees were less qualified for the Novitiate position. Weah Dep. at 48. Weah challenges Britenriker's reputation and claims that Britenriker complained about customers, and claims that Towns had a poor attitude and complained about Trader Joe's. However, even assuming Weah's allegations against these employees are true, his evidence would not allow a reasonable trier of fact to find pretext.
Although Trader Joe's "cannot escape scrutiny merely by claiming that [it] selected the most qualified candidates," Weah has the burden of proof to present evidence of pretext. Bell v. EPA, 232 F.3d at 551. In Bell, plaintiffs argued successfully that defendant's reasons for failing to promote plaintiffs were pretextual — plaintiffs showed that they had more experience and received more performance awards than the employees selected for promotion, and that they scored at or near the top on candidate rankings. Id. at 550-51. In contrast, Weah has not produced evidence that he scored higher than Britenriker or Towns on performance evaluations, which figure prominently in the promotion process at Trader Joe's. Willett Dep. at 13, 33-41. Moreover, even though Weah highlights that he had longer service than promoted part-timers, nothing in the record suggests that seniority per se is a factor considered by managers or the Regional Vice President when deciding who should be promoted. Trader Joe's decisions to promote Britenriker and Towns might or might not have been sound business judgments, but they were business judgments. Pretext is not suggested simply because the employer's decision was foolish, trivial, or baseless, or was based on a mistake. Wal-Mart, 324 F.3d at 939; Bell, 232 F.3d at 550; Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995).
C. Blase
Olaf Blase, a white non-African, was hired as a part-time crew member in September 2001, and was placed in the Key Carrier position in February 2003. The parties do not dispute that at the time Blase became Key Carrier, Weah had properly applied for the position and was at least initially considered for the position by Dillaway. See Weah Aff., ¶ 12; Dillaway Aff., ¶ 9. Trader Joe's offers two justifications for placing Blase into the Key Carrier position instead of Weah: (1) Dillaway was under the impression as of January 2003 that Weah was interested in the full-time Novitiate position and, according to defendant, the Key Carrier position is considered an impediment towards promotion; Dillaway Aff., ¶ 8; and (2) Blase was the most qualified candidate for the position and had a higher performance evaluation score over the prior six month period; Dillaway Aff., ¶¶ 13-14.
Weah offers no evidence to undermine defendant's explanation that Dillaway mistakenly assumed that Weah wanted the Novitiate position but not the Key Carrier position, which according to defendant were separate employment tracks. Furthermore, Weah does not dispute defendant's claim that Blase was more qualified for the position based on evaluation scores. See Dillaway Aff., ¶¶ 13-15; Dillaway Aff., Def. Ex. A (showing that Blase had an average score of 4.32 and that Weah had an average score of 3.51 over the two performance evaluations prior to filling the Key Carrier position). Even if Weah was more qualified than Blase on other factors, such as attendance, Trader Joe's has the right to weigh the different factors as it sees fit. It is a truism in employment discrimination law that the court does not sit as a "super-personnel department" that second-guesses an employer's choice among qualified candidates, as long as the evaluation is honest. E.g., Millbrook v. IBP, Inc., 280 F.3d 1169, 1180-81 (7th Cir. 2002).
In Dillaway Aff., Def. Ex. A, the dates given for the evaluations do not match the signature dates on the actual evaluation forms, although Weah's average scores match. Willett Dep., Exs. 7-8. In confusing testimony, Troy Willett stated that he considers only the previous six months of performance evaluations when deciding whether to recommend an employee for promotion. Willett Dep. at 13, 15.
Weah comes closest to the mark when he claims that Trader Joe's changed its story as to why it hired Blase for the Key Carrier position. Weah contends that although Dillaway initially told him that Blase was hired because Dillaway thought Weah did not want the Key Carrier job, defendant later responded to the EEOC charge by explaining that Blase was hired because his evaluation scores were higher and his customer service skills were greater than Weah's. Pl. Br. at 14. Shifting or multiple reasons for an employment decision can raise a genuine issue of material fact as to pretext. O'Connor v. DePaul Univ., 123 F.3d 665, 671 (7th Cir. 1997). The court must carefully weigh and consider whether multiple justifications suggest dishonesty in a particular case. Dishonesty may be suggested if an earlier justification is retracted or if the different explanations are contradictory. Johnson, 260 F.3d at 733-34 (concluding that vacillation in defendant's reasons for failing to promote plaintiff did not suggest pretext because defendant simply "supplemented" its reasons and there had been "no retraction of any of its reasons for failing to promote" plaintiff nor were any of its reasons "inconsistent or conflicting"); Logan, 259 F.3d at 640-41 (concluding that plaintiff's argument that employer gave multiple reasons for her discharge — bad attitude, sabotaging tanks, performance, and absenteeism — failed to show those reasons were pretextual because the reasons were not inconsistent); Gordon, 246 F.3d at 893 (holding that a reasonable jury could conclude that United's stated reason for firing plaintiff for "unauthorized deviation" from flight plan was pretextual, given in part United's inconsistent definition of that term); O'Connor, 123 F.3d at 671 (finding that different explanations for plaintiff's discharge were not contradictory and thus did not suggest pretext).
Assuming that Weah's claim that defendant added the second reason later is true, defendant's use of multiple reasons does not suggest pretext. Trader Joe's did not retract its earlier reason and its reasons are not inconsistent or conflicting. See Johnson, 260 F.3d at 733-34. Dillaway states that he considered Britenriker, Blase and Weah for the Key Carrier position in January 2003 because all three had previously indicated an interest in the position. Dillaway Aff., ¶ 9. It would not be inconsistent for Dillaway to consider Weah for the position but to reject him both because Dillaway thought Weah wanted the Novitiate position and because Blase had higher evaluation scores.
D. Schwind
Schwind, a white non-African, was hired in store #671 in November 2002 as a part-time crew member. The parties agree that at the time of Schwind's promotion to Novitiate on April 28, 2003, Weah had properly applied for a position as Novitiate. However, defendant offers two explanations for promoting Schwind instead of Weah. Defendant first argues that no position for Novitiate opened in store #670 for which Weah could compete. According to defendant, Schwind was promoted in store #671 by manager Sencenich, and was then transferred to store #670 as part of a swap to keep Troy Willett and his wife Janet Willett from working in the same store, as required by company procedure and policy. Defendant presents the sequence of events as follows: (1) Troy Willett was promoted in store #671; (2) Troy Willett was then transferred to store #670, where Weah worked, as the new store manager; (3) Troy Willett's promotion thus made available a position for Novitiate in store #671; (4) Schwind was promoted to Novitiate in store #671; (5) Janet Willett, who was a full-time staff member in store #670, then exchanged positions with Schwind. Def. Reply Br. at 7-8; see also Def. Ans. to Pl. Second Interrogatories, Q. 1 (describing the same events but not their sequence).
Defendant's second explanation is that Schwind was the more qualified candidate. Defendant bases this judgment partly on Schwind's performance evaluation score, which was higher than Weah's score. Defendant also claims that Troy Willett had worked with Schwind and said he was good with customers, good with crew, and wrote a "good order." Def. Br. at 21.
Unlike the multiple reasons defendant offered for placing Blase in the Key Carrier position, defendant's explanations for Schwind's promotion raise a genuine issue of pretext, both independently and in combination. First, Trader Joe's does not explain why it did not take the obvious alternative to the described promotion and transfer scheme — namely, why did defendant not transfer Janet Willett to store #671 directly to fill the full-time staff position made available by Troy Willett's promotion, without involving Schwind? Such a transfer by Janet Willett would have opened a full-time staff position in store #670. Weah could then have applied for that opening. Trader Joe's circuitous scheme would allow a reasonable jury to find that defendant essentially made a choice between Schwind and Weah, and then carried out a complex maneuver to prevent Weah from having a chance to compete for a position in the store where he already worked. The unexplained transfer of Schwind back to store #671 on September 15, 2003 also raises the issue of pretext.
Second, although differences in qualifications alone do not normally constitute evidence of pretext, Millbrook, 280 F.3d at 1180, the scores that defendant agrees are relevant for comparing Weah and Schwind are extremely close — Schwind's evaluation score dated March 2, 2003 was 3.59 and Weah's score dated April 30 was 3.58. Willett Dep., Pl. Exs. 9, 27. Moreover, even if the defendant had actually compared the scores of Schwind and Weah, these performance evaluations were done at different stores under different managers. Thus, defendant's emphasis on such a small difference in scores, especially in light of Weah's longer experience at store #670, casts doubt on the honesty of defendant's explanation.
Third, and most suggestive of pretext, is the incompatibility of these two explanations. Defendant's first explanation is that it promoted Schwind in store #671 to a Novitiate position available in store #671; thus, Schwind was not in competition with Weah for the position. If that explanation is correct, there would have been no reason for defendant to compare the evaluation scores of Schwind and Weah. In fact, when Weah asked defendant how Schwind was better qualified for the Novitiate position, defendant responded that the requested information was not relevant. Def. Ans. Pl. Second Interrogatories, Q. 3. Thus, under this first explanation, defendant could not reasonably have believed that Weah was not promoted because Schwind had a higher score. Yet that is precisely the second reason defendant offers to explain why Schwind but not Weah was promoted to Novitiate.
Such inconsistency and contradiction between multiple justifications for an employment action raise a genuine issue about whether defendant is being honest about the reasons it offered for not promoting the plaintiff. See Johnson, 260 F.3d at 733-34; Logan, 259 F.3d at 640-41; Gordon, 246 F.3d at 893; O'Connor, 123 F.3d at 671. Accordingly, the court cannot grant Trader Joe's motion for summary judgment: "If the inference of improper motive can be drawn, there must be a trial." Dey v. Colt Contr. Dev. Co., 28 F.3d 1446, 1461 (7th Cir. 1994), quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990).
Conclusion
Because plaintiff Weah has raised a genuine issue of material fact concerning defendant's decision to promote Schwind instead of plaintiff, defendant's motion for summary judgment is hereby denied. The court will conduct a scheduling conference on Tuesday, November 30, 2004, at 4:30 p.m. in Room 330, Birch Bayh U.S. Courthouse, Indianapolis, Indiana, to schedule a new trial date.
So ordered.