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United States District Court, Northern District of Illinois

August 25, 2003


The opinion of the court was delivered by: Milton Shadur, Senior District Judge


Sherry Thomas ("Thomas") has sued her ex-employer Chrysler Financial, LLC ("Chrysler"), charging that its failure to offer her a position as Credit Analyst was motivated by race and was therefore a violation of Title VII (42 U.S.C. § 2000e to 2000e-17) and of 42 U.S.C. § 1981.*fn1 Chrysler has moved for summary judgment under Fed.R.Civ.P. ("Rule") 56, and both sides have complied with this District Court's LR 56.I.*fn2 For the reasons stated in this memorandum opinion and order, Chrysler's motion is [ Page 2]

granted and this action is dismissed.*fn3

Summary Judgment Standards

Familiar Rule 56 principles impose on movant Chrysler the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett. 477 U.S. 317, 322-23 (1986)). For that purpose this Court must "consider the evidentiary record in the light most favorable to the non-moving party . . . and draw all reasonable inferences in his favor" (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). And Pudh v. CitV of Attica. 259 F.3d 619, 625 (7th Cir. 2001) has echoed the teachings of Anderson v. Liberty-Lobby.Inc., 477 U.S. 242, 248 (1986):

A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
As with any summary judgment motion, this Court accepts nonmovant Thompson's version of any disputed facts, but only so long as it is supported by record evidence. What follows in the Facts section is culled from the parties' submissions in those terms.


Thompson, an African-American, began working for Chrysler in [ Page 3]

1996 as a temporary employee in its Kansas City, Missouri office (C. St. ¶ 2). Chrysler hired her as a full-time Customer Service Representative in 1997, and in 1999 she transferred to the Chicago Zone office (id. ¶¶ 2-3). On April 23, 2001 Chrysler promoted her to Customer Service Supervisor (id. ¶ (9).*fn4 About a month later Chrysler informed Thomas and the rest of the employees in her department that all Chicago Customer Service positions were being transferred to Philadelphia as part of a company-wide reorganization (id ¶ 12). Employees were told they could transfer to Philadelphia and retain their current positions, but otherwise Chrysler would make "every effort" to find them alternative employment (id.).

Thomas wanted to stay in the Chicago area, so in May or June she applied for one of the Credit Analyst positions that had recently become available (C. St. ¶¶ 14, 16-18). According to Chrysler's internal job posting, some prior experience as a Customer Service Supervisor (but for no specified time period) was necessary to qualify for that position (id., ¶ 18; C. Resp. Exs. 1, 4).

Retail Credit Manager David Pack ("Pack") interviewed at least 14 candidates, including Thomas and two other Customer Service Supervisors in the local office, for the Credit Analyst [ Page 4]

spots (C. St. ¶¶ 17, 19). After the interviews had been conducted but before any decisions were made, Chicago Zone Office Manager Ben Boggs ("Boggs") instructed Pack that only applicants with at least one year of supervisory experience were eligible for the Credit Analyst positions (id. ¶ 20). Pack then hired the other two local Customer Service Supervisors, each of whom had approximately one year's experience (C. St. ¶¶ 23-24). According to Thomas, Pack left her a voicemail stating that she was not hired as Credit Analyst because she needed at least six months of experience as a Customer Service Supervisor (at the time she had held that position for only about 1-½ months) (T. St. ¶ 22; T. Ex. 2 ¶ 9).

By early October the Customer Service Department was officially transferred to Philadelphia (C. St. ¶ 46). Thomas stayed at the Chicago office with the hope that she would be promoted to Credit Analyst after she had been a Customer Service Supervisor for six months (Thomas Aff. ¶ 9). For the time being she retained her Supervisor job title (even though there was no one left to supervise) and was given the few remaining tasks within the department, but she was told she would likely be laid off once those tasks were done (C. St. ¶ 48).

Nothing in the record shows that any new Credit Analyst spots ever became available. One of the two people originally selected for the Credit Analyst position did take maternity leave [ Page 5]

before she ever started in the position, then resigned in November, but while she was away the workload within the Retail Credit Department reduced dramatically, so that Chrysler saw no need to hire a new Credit Analyst to replace her (C. St. ¶¶ (24, 26).*fn5

On December 14 Thomas submitted her resignation (C. St. 153). Thomas then filed a timely EEOC charge of race discrimination, and on March 29, 2002 EEOC issued a right-to-sue notice. Thomas then timely instituted this action.

2Race Discrimination

Disparate treatment claims such as the ones Thomas presents*fn6 have traditionally been analyzed under what have been referred to as the "direct" and "indirect" methods. Under the direct method of proof, a plaintiff may establish*fn7 race discrimination by [ Page 6]

providing evidence — either direct or circumstantial — of discrimination (Troupe v. May Dep't Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994)).*fn8 Alternatively a plaintiff may establish her case indirectly by demonstrating all the elements of a prima facie case as originally laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Because Thomas cannot proceed under the direct method,*fn9 she must demonstrate, under McDonnell Douglas and its progeny, (1) that she was a member of a protected class, (2) that she [ Page 7]

applied for and was qualified for the Credit Analyst position, (3) that Chrysler did not promote her and (4) that it instead promoted someone who was similarly situated but outside of the protected class (Ajayi v. Aramark Bus. Serva., Inc., 336 F.3d 520, 531-32 (7th Cir. 2003)). If she were to do that, the burden would shift to Chrysler to "articulate a legitimate, nondiscriminatory reason for its actions" (Grayson. 317 F.3d at 748)).

Until now our Court of Appeals has characterized the last volley of the McDonnell Douglas ping-pong sequence as requiring Thomas to submit evidence suggesting that every plausible justification Chrysler conjures up is pretextual (see, e.g., Debs v. N.E. ill. Univ., 153 F.3d 390, 395 (7th Cir. 1998)) — an approach that this Court has always viewed as being in substantial tension with the universal concept that if a party's credibility is successfully attacked in some respect, the trier of fact is not required to credit other evidence offered by that party even though it is not controverted directly. But although the ensuing analysis here demonstrates that this case does not provide the occasion to do so, it would appear that the earlier-framed burden-shifting scheme may need to be revisited in light of the Supreme Court's recent decision in Desert, Palace Inc. v, Costa. 123 S.Ct. 2148 (2003). It is worth a momentary digression to explain why. [ Page 8]

Desert Palace (jd. at 2155, quoting 42 U.S.C. § 2000e-2(m) (emphasis added)) held that under the Civil Rights Act of 1991, which amended Title VII, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude . . . that `race, color, religion, sex, or national origin was a motivating factor for any employment practice,'" at least in the context of mixed-motive cases.*fn10 It would seem to follow that if an employee can raise an inference of discrimination by satisfying the initial elements of a prima facie case, an employer may not necessarily escape liability altogether by offering an alternative explanation for its action. Once the potential exists for the alleged discriminatory motive to be viewed reasonably as a motivating factor at all, the employer's proffer of a legitimate, nondiscriminatory justification would arguably affect the scope of remedies available to the plaintiff, but not the employer's underlying liability (42 U.S.C. § 2000e-5(g)(2)(B)).

But to return from what may prove to be a new analytical world to the case at hand, the proper role of legitimate, nondiscriminatory reasons post-Desert Palace would come into play only if Thomas were first to meet all the elements of the prima facie test (Jones. 302 F.3d at 741-42). And this she has failed to do. [ Page 9]

Chrysler does not dispute that Thomas was (and is) a member of a protected class and that she applied for the promotion to Credit Analyst but was rejected. So the only points of contention are found in the second and fourth elements of the prima facie test.

As to the first of those, there is indeed a genuine issue as to whether Thomas was qualified for the Credit Analyst position. Both parties agree that after all the interviews were conducted, Boggs instructed Pack to hire candidates with at least one year of supervisory experience. But Thomas claims that Pack told her she did not get promoted because she did not have six months' experience as a Customer Service Supervisor, while the internal job posting said nothing about any required amount of experience as a Supervisor. And there is no question that Thomas' performance that had led to her promotion was exemplary, nor had anything adverse developed during her brief tenure in the Supervisor position.

With the evidence in that posture, a reasonable juror could find that Thomas was qualified for the Credit Analyst position (cf. Farrow v. Humana Health Plan, Inc., 69 F. Supp.2d 1050, 1058 (N.D. ill. 1999), which found a material issue of fact whether master's degree was required for promotion where the job posting did not list the requirement and where several former employees did not have master's degrees). So Thomas' ability to [ Page 10]

prove a prima facie case turns on whether she has identified any similarly situated individual who was given the promotion that was denied to her.

In making the determination whether two employees are similarly situated, a court must look to all factors relevant to the position sought — factors that often include education, experience and performance (Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000)). Thomas need not show that she was identical in every respect to one of the candidates selected, but she must show substantial similarity in all material respects (Patterson v. Avery Dennison Corp., 281 F.3d 676,'680 (7th Cir. 2002)).

Chrysler argues that Thomas was not similarly situated to either of the two individuals who were selected for the Credit Analyst positions because they each had held the Customer Service Supervisor position for at least a year while Thomas had just been promoted to the position a little more than a month before. That position carries the day. It is clear from the job posting that supervisory experience was one of the criteria for the Credit Analyst position, and it is not up to this Court to second guess either what factors Chrysler should employ when evaluating candidates for the job or the weight to be given to a greater or lesser level of conformity to any such factor (experience is a prime example of that) (Gordon v. United Airlines, Inc., [ Page 11]

246 F.3d 878, 889 (7th Cir. 2001)).

Thomas argues that she was similarly situated to Mr. Rory Mahoney ("Mahoney"), who was originally rejected for the Credit Analyst position in June but was given the position over a year later — in August 2002*fn11 — without ever having worked as a Customer Service Supervisor (T. St. ¶ 73). That comparison does not work, for Mahoney was promoted to Credit Analyst eight months after Thomas resigned from Chrysler (id.). Had a Credit Analyst promotion remained open all the while, or had Thomas stayed with Chrysler and applied for the Credit Analyst position in August 2002 when Mahoney got the job, Thomas could arguably have a reasonable basis for comparing herself to Mahoney. But under the present facts Thomas has failed to identify any similarly situated individual who was promoted to the Credit Analyst position.


Even with the benefit of the required reasonable inferences in her favor, Thomas has not met the fourth requirement of the McDonnell Douglas prima facie test. So she has not succeeded under either the direct or the indirect method of proving her failure to promote claim. There is no genuine issue of material [ Page 12]

fact, and Chrysler is entitled to a judgment as a matter of law. Its motion for summary judgment is granted, and this action is dismissed.

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