Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 6150 -- Joseph Sam Perry, Judge.
Before BAUER, CUDAHY, and POSNER, Circuit Judges.
POSNER, Circuit Judge. Frieda Mason, a black employee of the Continental Illinois National Bank in Chicago, brought this suit under the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, against the bank and one of its supervisory employees, complaining that she had been denied promotion because of her race. The district court granted summary judgment in favor of the defendants, and she appeals.
In August 1980, a position as transmission supervisor on the day shift of the communications section of the bank's international services division -- a salary grade 9 position -- opened up, and Miss Mason, a work coordinator in the section's night shift, applied for it. At about this time she received her annual employee fitness rating, in which she was found by her supervisor to be above average, though not outstanding, and in terms of potential for future development "moderate," defined to mean that "the employee has the ability to advance one salary grade within the next 12 months." The report commented, "With further development for Management interface, Frieda could certainly advance one salary grade in the next 12 months." Mason's supervisor explained that "Management interface" meant communicating with superiors and that defendant Friedman, who was a couple of supervisory levels above Mason, did not like the way she came to him directly with personnel matters rather than going through channels.
Mason's name was forwarded to Dennis Parenti, the supervisor of the communications section, along with the name of another candidate, a white woman. Parenti discussed the names with Friedman, the assistant manager of the international services division, and with Edward Lehmann, the manager of the division. Lehmann stated in his deposition: "I indicated to him [Parenti] that we should try to determine whether or not there might be any other candidates within [the international services division], and also with discussing that with Ron [Friedman] to determine whether there had been any candidates that we might know of that might be appropriate candidates that we might want to consider for this position."
Coincidentally, within a few days of Lehmann's discussion with Parenti an employee in the international services division who had just resigned (effective July 31) -- Maryann Yarmolchuk -- called Parenti to say she regretted her decision to leave and wanted to come back. Miss Yarmolchuk had been a special investigator for the division, salary grade 8, assigned to handle claims against customers who had underpaid for the bank's services. Her most recent employee rating, in March 1980, had rated her outstanding -- a grade above Mason -- but like Mason capable of advancing just one salary grade in the next 12 months. And Yarmolchuk's termination notice, issued in July, not only had described her performance as "exemplary in every regard" but had upgraded her potential for future development from "moderate" to "substantial," which means the employee can advance two or more salary grades within the next 24 months. When Parenti learned that Yarmolchuk wanted to come back to the bank he called Friedman, who called Lehmann, and she was appointed to fill the position for which Mason had applied.
Nothing in the facts recited so far suggests that racial animus played any role in the bank's decision to appoint Yarmolchuk rather than Mason to the open position on the day shift. True, Mason's work as a work coordinator on the night shift in the communications section was more like that of a transmission supervisor on the day shift than Yarmolchuk's work as an investigator was, but offsetting this was the fact that before the position on the day shift opened up Yarmolchuk had received two evaluations superior to Mason's. The reference to Mason's problem of "Management interface," in a rating issued the same month the position opened up, implied that she was not thought ready -- even by a sympathetic supervisor (also black) who provided disposition evidence for her in this case -- for immediate promotion. Yarmolchuk's rating of "moderate" potential had been issued four months earlier and had been upgraded to "substantial" just before the position opened up, suggesting she was riper for promotion than Mason.
Mason contends, however, that the following circumstances created a genuine issue of material fact regarding the bank's true motive for not appointing her, and thus made summary judgment improper:
1. In August she had been given new duties as work coordinator on the night shift, but her position was not upgraded to a grade 9.
2. The bank refused to explain to her in writing why she did not get the appointment as transmission supervisor on the day shift.
3. Friedman told her that Yarmolchuk had been appointed not because she was better qualified but because Mason "lacked communication skills" -- an obvious falsehood, according to Mason's brief.
4. Yarmolchuk was not selected for the position until Lehmann, the manager of the international services division, was away on a business trip.
5. Under the bank's rules, existing employees are entitled to a preference when it comes to filling an open position, and Mason was an existing employee, whereas ...