lengthy discussion of her performance record, describing her legal successes and the praise she has merited. She also argues the following: (1) that her litigation skills were comparable to those of Tennenbaum and Loughlin, and that overall she was actually more qualified than either of them; (2) that Cohen listed only three cases in which he believed she did not offer sound legal advice, and that in fact she handled those cases successfully; (3) that Cohen could cite only one example of her purported lack of analytical skills, and that was uncertain at best; (4) that EPA admits that Perdomo's work met the criteria of the Hardy memo, but that Cohen did not follow the guidelines set forth in the Hardy memo; and (5) that there is other circumstantial evidence of discrimination.
None of Perdomo's arguments speaks to the issue of Cohen's alleged discrimination -- she has offered no direct evidence that Cohen discriminated against her because she is Hispanic. On the contrary, the record shows that since Perdomo started at EPA, Cohen twice recommended that she be promoted. Moreover, Steven Mendoza, a Hispanic male who is Perdomo's section chief, testified that he had never heard Cohen say anything that he perceived as being racist or discriminatory, and that he did not know of any actions by EPA which he believed to be discriminatory towards Hispanics (Mendoza Dep., pp.114, 118).
Perdomo has cited no evidence rebutting Cohen's statements regarding his beliefs about Perdomo's skills or his assessment that Tennenbaum and Loughlin were best qualified for the promotion. Plaintiff's evaluations and performance record suggest that she is a very good lawyer who is extremely well thought of by her superiors and clients. Indeed, the totality of Cohen's testimony evidences not so much a belief that plaintiff was not then qualified as it does a conclusion that she was not quite as ready to be a GS-14 or that she was not quite as seasoned as the other two, who had had considerable private practice experience -- not that he was negative about plaintiff but that he was less positive about her than he was about the other two. It may be that Cohen did not review Perdomo's record as thoroughly as he might have before making his decision regarding the GS-14 promotions. But even if Cohen's belief as to the level of Perdomo's analytical or advisory capacities is inaccurate, and Perdomo's skills are better than Cohen claims, this does not prove that Cohen lied about his belief that she was not as qualified or that he discriminated against her because she is Hispanic. That an employer made an incorrect or ill-informed decision is not automatically evidence of pretext, especially where, as here, the plaintiff offers no direct evidence of discriminatory intent. Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300 (7th Cir. 1991).
Whether Perdomo is more qualified than Tennenbaum or Loughlin is neither here nor there. A reasonable trier of fact could find nothing suspicious in Cohen's choice of Tennenbaum and Loughlin over Perdomo. While Perdomo had been at EPA longer than either of them, Tennenbaum and Loughlin had been practicing law about four years and two years longer, respectively, than Perdomo. Both were highly recommended by Catherine Fox, one of the AWTGL branch section chiefs, and Sandra Lee, another section chief, concurred with Fox. Even if Perdomo was more qualified than Tennenbaum or Loughlin -- of which this court is unconvinced -- this still does not suggest Cohen discriminated. See Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (employer may pass over one applicant in favor of others who are not clearly superior without discriminating).
Perdomo's assertion that Cohen ignored the advice of her section chief, Stephen Mendoza, does not provide much support for plaintiff's position. Cohen requested that Mendoza recommend persons who were eligible for promotion and Mendoza's recommendation, Perdomo, was considered. That Cohen did not accept Mendoza's recommendation of Perdomo, but instead followed the recommendations of the other section chiefs, does not mean he discriminated against Perdomo.
Whether Cohen used the Hardy criteria in deciding which attorneys to recommend for promotion to GS-14 has little to do with the ultimate issue of his alleged discrimination against Perdomo. The Hardy memo states that it is meant to provide "EPA-specific criteria for the classification of nonsupervisory grade 13 and 14 regional attorney positions" (Cplt., Exh. A, p.1). Nothing in the Hardy memo obligates EPA supervisors to apply it word-for-word when deciding whether to promote a certain attorney. That Cohen considered the Hardy criteria as only part of the evaluation process and also relied on his subjective opinion does not suggest discriminatory intent. See Weihaupt v. American Medical Ass'n, 874 F.2d 419, 429 (mere fact that employer's beliefs were based on subjective factors fails to establish that their assessment of employee's skills were made in bad faith); Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1427 (a "subjective qualification assessment does not convert an otherwise legitimate reason into an illegitimate one"). While an employer's use of subjective criteria to make an employment decision may be a subterfuge for discrimination, there is simply nothing in the record to suggest as much.
Plaintiff's arguments regarding supposed "circumstantial evidence of discrimination" are unpersuasive (Plf. Memo, pp.14-15). A reasonable jury could not find that Cohen discriminated against Perdomo based on evidence that her section chief (who is Hispanic) did not lunch regularly with Cohen, or that the three Hispanic AWTGL branch attorneys all worked in the same section (which had been Cohen's). See Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557 (7th Cir. 1987) (discussing types of circumstantial or indirect evidence suggesting disparate treatment).
Perdomo cites Anderson and Hicks to argue that to survive EPA's motion for summary judgment she need only present evidence that Cohen's explanation of his actions is pretextual (Plf. Mem., p.2). This court does not dispute the language in Anderson that to withstand summary judgment an employee must "only 'produce evidence from which a rational fact could infer that the company lied about its proffered reasons' . . . . 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 rationally be drawn . . . ." Anderson, 13 F.3d at 1124, citing Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990). We do not, however, believe that Perdomo has demonstrated that EPA or Cohen lied about the reasons she was not promoted. Perdomo argues that by showing that she was qualified for a GS-14 position, she has demonstrated that Cohen lied when he stated she was not qualified for the position. At most, Perdomo's evidence suggests that Cohen's promotion decision was not as informed or considered as it could have been. This is neither evidence that Cohen lied about the reason for his decision, nor evidence that he discriminated against Perdomo because she is Hispanic. Billups, 922 F.2d 1300.
Moreover, even assuming that Cohen dissembled about his reasons for not promoting Perdomo, there is no evidence that his real reason was discriminatory. Hicks emphatically confirms that a plaintiff bringing a Title VII action bears the burden of persuasion at all times. That is, plaintiff must show "both that the reason was false and that discrimination was the real reason." Hicks, 113 S. Ct. at 2752. As stated above, the record does not demonstrate that Cohen lied about the reasons he passed over Perdomo in favor of Tennenbaum and Loughlin. Considering the record as a whole, and construing the evidence in Perdomo's favor, Perdomo does not provide evidence of the second requirement discussed in Hicks, that is, that Cohen did not select her for promotion because she is Hispanic. See Palucki v. Sears, Roebuck & Company, 879 F.2d 1568 (7th Cir. 1989) (plaintiff does not automatically secure right to trial by rebutting employer's explanation of unfavorable treatment; district court must determine whether plaintiff could persuade reasonable jury that employer discriminated); Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir. 1987) ("Showing that the employer dissembled is not necessarily the same as showing pretext for discrimination . . . plaintiff must show a causal chain in which race or another forbidden criterion plays a dispositive role").
Summary judgment is inappropriate in many cases involving issues of discriminatory intent and motive, which are often very difficult to establish. See McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir. 1992) (standard for summary judgment should be applied with added rigor in employment discrimination cases). This court has conducted a thorough review of the pleadings, deposition testimony, affidavits and other materials contained in the record in this case, and concludes that they reveal no statement or action by Cohen or any other EPA employee suggesting that discrimination occurred in the GS-14 selection process.
The record suggests that Cohen had to choose between several qualified individuals, and that Perdomo was disappointed that he did not choose her. Although Perdomo's disappointment is understandable, the record does not support her claim that Cohen did not promote her because she is Hispanic.
See Dale, 797 F.2d at 465 (plaintiff "should not be allowed to proceed with a case on the mere hope that trial would produce evidence he was unable to garner at the state of summary judgment").
For the reasons set forth above, defendant's motion for summary judgment is granted.
JAMES B. MORAN,
Chief Judge, U.S. District Court
August 25, 1994.