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PAGSUBERON v. CHICAGO TRIBUNE COMPANY

August 15, 2001

NOEL PAGSUBERON, PLAINTIFF,
v.
CHICAGO TRIBUNE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo, Judge

MEMORANDUM OPINION AND ORDER

Noel Pagsuberon sues the Chicago Tribune Co. ("Tribune") for employment discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. He says that the Tribune discriminated against him on the basis of his age and national origin when it passed him over for a promotion in favor of a younger, non-Filipino co-worker. The Tribune moves for summary judgment, which I grant.

I.

In the early 1990s, Noel Pagsuberon, a Filipino, worked in the Tribune's Production Systems Services ("PSS") department as an Associate Ad Creator. He had worked at the Tribune in various positions since 1985. Associate Ad Creators prepare text for use in ad layout material; they input text, scan, proofread, and sort ads. In February 1995, Pagsuberon, then sixty-one years old, applied internally for a promotion to a vacant Ad Creator position. Ad Creators take art that has been scanned and text that has been entered by someone else and create the final product according to the specifications of the advertiser. Ad Creators must have the skills of an Associate Ad Creator — text entry, scanning and proofreading — but they do not ordinarily perform these tasks themselves. They must also have a thorough understanding of advertisement layout and design and be able to use highly technical computer equipment. The Tribune planned to train the new Ad Creator on specific technical equipment and other job skills after his or her promotion.

Two other Tribune employees also applied for the Ad Creator position: Geneva Cole, a forty-year-old African American woman, and Freddie Dixon, a thirty-year-old African American man. The Tribune's Internal Placement Program procedures require an employee to submit an application for an open position through his or her supervisor. The supervisor completes the Supervisor Section of the application form, which includes a statement of attendance or discipline problems, date of last performance review and overall rating, recommendation for the position, and comments. Clifford Phillips filled out the Supervisor Section for Dixon and Cole, and Tom Symonanis filled out the Supervisor Section for Pagsuberon. Phillips and Lenny Krasnowski, another PSS supervisor, reported to Symonanis, who managed the PSS department. Phillips and Krasnowski interviewed all three candidates in April 1995 and rated them on a scale of one to ten in eight different skills or categories. Dixon had the highest total score, with 73 points out of a possible 80, followed by Pagsuberon with 59 and Cole with 58. On April 12, 1995, Phillips and Krasnowski wrote a memorandum to Symonanis listing the applicants' scores and recommending Dixon for the promotion. Symonanis is listed as the Hiring Manager on the Employment Office form that indicates the open position was ultimately filled by Dixon. At this time the Tribune employed six other employees over the age of sixty as Ad Creators in the PSS department. One week before Dixon's promotion was effective, Symonanis promoted a Filipino employee in another department under his control, and in 1996 he promoted a Filipino PSS employee from Ad Creator to Senior Ad Creator. Pagsuberon continued to work at the Tribune until he suffered a stroke in 1997 and left work on disability; he retired from the Tribune on February 8, 1999. Pagsuberon filed a Charge of Discrimination with the Equal Employment Opportunity Commission on June 12, 1995 and received a Right to Sue letter on November 9, 1999. He filed this lawsuit on January 18, 2000.

II.

Summary judgment is proper when the record "show[s] that there is 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). In determining whether a genuine issue of material fact exists, I must construe all facts in the light most favorable to the non-moving parties and draw all reasonable and justifiable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "A genuine issue of fact `exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole.'" Culver v. McRoberts, 192 F.3d 1095, 1098 (7th Cir. 1999) (citation omitted)

If there is no direct evidence of discrimination, as there is not here, a plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).*fn1 Under McDonnell Douglas, a plaintiff must first make out a prima facie case of discrimination by showing that: "(1) he belongs to a protected class, (2) he performed his job according to his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees outside the protected class were treated more favorably by the defendant." Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001). If the plaintiff establishes the prima facie case, the burden shifts to the employer to come forward with evidence of a legitimate, non-discriminatory reason for the challenged action. Id. If the defendant does so, the burden shifts back to the plaintiff to come forward with evidence to show that the employer's stated reason is a pretext for discrimination. Id.

"Pretext" means more than an unusual act or a bad business decision; it is a lie or "deceit used to cover one's tracks." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684, 685 (7th Cir. 2000). In considering whether an employer's stated reason is pretextual, I "bear in mind that the overall correctness or desirability of the reasons proffered is not relevant." Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999). The underlying truth of the reasons is not the issue, only the employer's honest belief in them. To demonstrate pretext, "the employee must give evidence `tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the [action] in question, or were insufficient to motivate the [action.]'" Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir. 1998) (citation omitted). The plaintiff's evidence must tend to show that the employer did not honestly believe the reasons it offered. Bell v. Environmental Protection Agency, 232 F.3d 546, 550 (7th Cir. 2000). Where the employer comes forward with more than one legitimate reason that, standing alone, could justify the employment action, the plaintiff must create an issue of fact for each reason to survive a motion for summary judgment. Adreani, 154 F.3d at 395; Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995).

This case turns on pretext. In its motion for summary judgment, the Tribune says that Symonanis hired Dixon because he was most qualified for the position on the basis of his eagerness and ability to learn new computer systems and his scanning proficiency, as well as the ratings and recommendations of Phillips and Krasnowski. These reasons are supported by the testimony of all three decisionmakers, as well as contemporaneous documents. Pagsuberon argues that Symonanis was not the decisionmaker and that, even if he was, the Tribune should not be allowed to offer evidence of his reasons for not promoting Pagsuberon because it did not offer them in Cole's case against the Tribune.*fn2 See Cole v. Chicago Tribune Co., No. 96 C 3320, 2000 WL 656644 (N.D. Ill. May 23, 2000) (Gottschall, J.) (granting summary judgment for Tribune). Although he does not develop the argument or identify its legal basis, I understand this to be an invocation of judicial estoppel.

In the Cole case, the Tribune asserted that Phillips and Krasnowski "determined that Dixon was the best candidate for the position and selected him for the job." Pl's Ex. 32B at ¶ 24. Pagsuberon now says that the Tribune never mentioned Symonanis in the Cole case and that there it said only that Dixon was more qualified because he received higher ratings. He argues that the Tribune should not be allowed to assert any other decisionmakers or non-discriminatory reasons. It is not inconsistent with the Cole case to say that Symonanis and Phillips and Krasnowski were the decisionmakers; one proposition does not logically exclude the other. See Himel v. Continental Ill. Nat'l Bank & Trust Co. of Chi., 596 F.2d 205, 211 (7th Cir. 1979). Nor is it "contradictory" to provide additional explanations for why the Tribune considered Dixon to be more qualified. Two propositions are not "inherently inconsistent" merely because they "are not explicitly duplicative." See Hossaini v. Western Mo. Med. Ctr., 140 F.3d 1140, 1143 (8th Cir. 1998).

Moreover, even if the Tribune were limited to its decisionmakers and reasons asserted in the Cole case, Pagsuberon has not come forward with sufficient evidence to raise an inference of pretext.*fn3 Phillips and Krasnowski rated the applicants on eight criteria, and Dixon received the highest score. Pagsuberon attempts to demonstrate pretext by showing that the score for each criterion is "factually baseless." Although it is not enough that the employer merely was wrong, the Seventh Circuit has endorsed the "comparative qualification" approach where the plaintiff was able to come forward with "specific evidence that calls into question the veracity of the [employer]'s reason for failing to promote [him]: that [he] was not as qualified as the other candidates." Perdomo v. Browner, 67 F.3d 140, 146 (7th Cir. 1995). In Perdomo, the court held that, where it was "quite evident that [the plaintiff's] qualifications not only match[ed] those of the successful appointees but may very well [have] exceed[ed]" them, a jury could reasonably conclude that the employer was lying when it said the plaintiff did not get the promotion because she was less qualified. Id.; see also Gordon, 246 F.3d at 889 (Employee may demonstrate pretext with "detailed refutation" of events underlying performance assessment.); Bell, 232 F.3d at 551 (Employee demonstrated pretext by attacking "comparative qualifications.").

Pagsuberon comes forward with evidence for each of the eight criteria, and for some of them the evidence is sufficient to create a question of fact as to the Tribune's honest belief. For example, for (2) "Evaluation (Based on past work performance)," Dixon received a score of ten and both Pagsuberon and Cole received only sixes. Pagsuberon produced the six-month performance reviews for May to November 1993, Pl's Ex. 27A-C, and the annual performance reviews for 1993 to 1994, in which all three candidates received overall evaluations of "fully satisfactory" — the middle of the range from ...


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