In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2255

Anna D. Wells,

Plaintiff-Appellant,

v.

Unisource Worldwide, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4540--George W. Lindberg, Judge.

Argued January 23, 2002--Decided May 10, 2002



  Before Bauer, Coffey, and Evans, Circuit
Judges.

  Coffey, Circuit Judge. Anna Wells
claimed that her former employer,
Unisource Worldwide, Inc., discriminated
against her because of her race (African
American) in transferring her job
assignment from the state of Illinois to
the state of Wisconsin. Wells also argues
that Unisource discriminated against her
when it refused to offer her other
positions within the company after she
declined to accept the transfer. Wells
further claimed that the decision to
transfer her position out of state was
made in retaliation for her filing a
discrimination claim against Unisource in
1998. Unisource presented a legitimate,
non-discriminatory reason for the
transfers--in order that it might improve
communications between its sales
departments and credit departments. The
trial court granted summary judgment in
favor of Unisource, ruling that Wells had
failed to establish that Unisource’s
proffered non-discriminatory reasons for
transferring the positions were
pretextual. We affirm.

I.   Factual Background

  Unisource sells janitorial cleaning
products and communication paper products
in the states of Illinois and Wisconsin.
Anna Wells, an African American, was
initially employed by Unisource in 1993
as a data entry clerk in the state of
Illinois at its Itasca plant. Three
months later, Unisource promoted Wells to
the position of cash applications clerk
in its credit department. In 1998, Wells
filed a charge of discrimination against
her employer, alleging that it had
discriminated against her on the basis of
her race when it failed to elevate her to
the position of credit administrator.
Shortly after Wells filed the charge,
Unisource settled the discrimination
claim and agreed to promote her to the
next open credit administrator position
in the Itasca, Illinois, facility. In
March 1999 a credit administrator
position at Itasca became vacant and
Unisource promoted Wells to the position.

  At the time of Wells’s promotion,
Unisource’s credit department had a
bifurcated organizational structure for
the assignment of accounts: credit
administrators processed payments and
delivery based upon whether the products
purchased were office paper products
("fine paper") or janitorial supplies
("supply systems"). Additionally, credit
administrators generally handled only
those accounts that were located in the
same state in which they were employed.
Thus, credit administrators who handled
Wisconsin-based "fine paper" accounts
operated out of Unisource facilities in
the cities of Appleton and New Berlin,
Wisconsin. But for reasons not explained
in the record, two credit administrators
who handled Wisconsin-based "supply
systems" accounts worked at Unisource’s
Itasca, Illinois, facility. Wells was one
of the two credit administrators who
handled primarily Wisconsin-based "supply
systems" accounts (though she also had
some Illinois-based accounts), but worked
in Unisource’s Itasca, Illinois, facility
and not in its Wisconsin facility. The
other credit administrator who handled
Wisconsin-based accounts, but was
employed in Illinois, was Betsy Novinski,
a Caucasian female.

  In March 2000, Walt Welsh, Director of
Unisource’s Itasca credit department, and
Alice Gorman, Unisource’s Human Resources
Director, decided to restructure its
credit department so that credit
administrators were located in the same
facility as the sales staff that sold its
products and so that credit
administrators would handle only local
customer accounts. In other words,
Unisource determined that the credit
administrators who handled Wisconsin-
based accounts should be located in its
Appleton and New Berlin, Wisconsin
facilities, and not in the Itasca,
Illinois, facility. Unisource also
believed that if the credit
administrators were in the same facility
as its sales staff, the sales staff could
meet with the credit administrators face-
to-face in order that they might better
resolve customer credit problems.
Unisource further believed that
consolidation of the Wisconsin-based
credit administrators would facilitate
and improve the collection rate on
Wisconsin-based accounts. Accordingly,
Unisource relocated the two credit
administrator positions (Wells’s and
Novinski’s) handling Wisconsin accounts
from its Itasca, Illinois, facility to
its Wisconsin facilities.

  Upon being informed of Unisource’s
decision to restructure its credit
administrator positions, Novinski immedi
ately applied for and received another
position within Unisource’s Itasca
facility two months prior to the
effective date of her impending transfer.
In spite of the fact that Unisource
informed Wells that she was free to apply
for any open position in the Itasca
facility, for reasons unexplained she
failed to immediately apply for any other
positions (as Novinski had previously
done) and continued working in her soon-
to-be-eliminated Itasca credit
administrator position.
  Approximately one month later (April
2000), a credit administrator position in
the Itasca facility became available
after an employee resigned and Wells
submitted her application. The open
position handled "fine paper" accounts
and required three to five years
commercial credit experience as well as
the ability to handle accounts receivable
portfolios with exposures ranging from
four to six figures. Ultimately, the
company hired Lisa Jablenski, a white
female, for the position because of her
superior qualifications. Jablenski had
approximately 10 years experience in
credit and collection where Wells had a
mere thirteen months of experience in a
credit administrator’s position. In
addition, Jablenski had been responsible
for handling accounts that had exposures
in the seven-figure range, whereas
Wells’s experience was limited to
accounts with exposures in the four- to
five-figure range. According to Tom
Freske, Unisource’s Midwest Market Area
Credit Manager, the company’s decision in
hiring Jablenski rather than Wells was
based upon her lengthy experience in the
credit and collection field.

  After she failed to secure the open
credit administrator position in Itasca,
Wells attempted to persuade Unisource to
retain her in an Itasca-based credit
administrator position. In this regard,
Wells requested that Unisource create a
part-time position for her at the Itasca
facility where she would continue to
handle the Illinois accounts, but
Unisource declined to create this new,
part-time position. Wells also applied
for other positions at the Itasca
facility, but failed to be selected for
any of them. On April 14, 2000, Wells’s
position was relocated to Appleton,
Wisconsin. Because Wells refused to
accept a transfer to Appleton and also
because she had been unsuccessful in her
application for other positions at the
Itasca facility, Unisource terminated her
contemporaneous with the time her former
position was relocated. At the time Wells
was laid off, Unisource informed her that
she remained free to apply for any open
positions at the Itasca facility. Because
Wells was unqualified to fill any of the
open positions at Itasca, her
applications for re-employment continued
to be unsuccessful.

  Wells sued Unisource after her
termination, alleging discrimination
based upon race (African American)
inviolation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. sec. 2000e
et seq., in transferring her position to
Appleton and in failing to hire her for
the open credit administrator position at
Itasca. Wells also claimed that Unisource
was guilty of unlawfully retaliating
against her for her filing of the 1998
discrimination charge when it decided to
transfer her position out of the state to
Appleton, Wisconsin. Because Wells had
failed to rebut any of Unisource’s non-
discriminatory reasons for implementing
its restructuring plans or for selecting
and hiring Lisa Jablenski (rather than
Wells) for an open credit administrator
position in Unisource’s Itasca facility,
the trial court granted summary judgment
in favor of Unisource. The trial court
concluded that Wells failed to establish
a causal connection between her 1998
filing of a discrimination charge and
Unisource’s employment decisions in the
year 2000. Wells appeals.

II.    Issues

  On appeal, Wells raises two issues.
Initially, Wells argues that the trial
court committed error in ruling that
Wells failed to establish that
Unisource’s proffered reasons for
transferring her position were
pretextual. Second, Wells argues that the
trial court erred in ruling that she had
failed to establish a causal connection
between her 1998 filing of a
discrimination charge against Unisource
and its 2000 decision to transfer her
position.

III.    Analysis

  Wells initially argues that the trial
court erred in granting summary judgment
in favor of Unisource on her claim that
it discriminated against her because of
her race by relocating her credit
administrator position to Wisconsin.
Wells had no direct evidence that
Unisource discriminated against her
because of her race and so proceeded
under the familiar burden-shifting test
set forth initially in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
Under this test, Wells was initially
required to carry the burden of
establishing a prima facie case of
discrimination and demonstrate that: 1)
she was a member of a protected class; 2)
she was meeting her employer’s legitimate
expectations; 3) she suffered an adverse
employment action; and 4) other,
similarly-situated employees who were not
members of the protected class were
treated more favorably. Paluck v. Gooding
Rubber Co., 221 F.3d 1003, 1012 (7th Cir.
2000). Although we often comment that
"the prima facie case under McDonnell
Douglas must be established and not
merely incanted," Unisource conceded
before the trial court that Wells had
established a prima facie case of
discrimination. Coco v. Elmwood Care,
Inc., 128 F.3d 1177, 1179 (7th Cir.
1997)./1

  After Wells established a prima facie
case of racial discrimination, the burden
of production shifted to Unisource to
show a legitimate, non-discriminatory
reason for its employment action. See
Paluck, 221 F.3d at 1012. Once Unisource
has proffered a legitimate non-
discriminatory reason for its action, the
burden returns to Wells to demonstrate
that Unisource’s proffered reason was
pretextual. Id. In order to establish
pretext a plaintiff must demonstrate that
an employer’s proffered explanation for
an employment decision is a dishonest
explanation, rather than merely an error.
Kulumani v. Blue Cross Blue Shield Ass’n,
224 F.3d 681, 685 (7th Cir. 2000). "A
pretext for discrimination means more
than an unusual act; it means something
worse than a business error; pretext
means deceit used to cover one’s tracks."
Grube v. Lau Indus., Inc., 257 F.3d 723,
730 (7th Cir. 2001) (internal quotations
omitted). To demonstrate pretext, Wells
must demonstrate that Unisource’s
articulated reason for her discharge
either: (1) had no basis in fact; (2) did
not actually motivate her discharge; or
(3) was insufficient to motivate her
discharge. Velasco v. Illinois Dept. of
Human Serv., 246 F.3d 1010, 1017 (7th
Cir. 2001).

  Despite its concession that Wells had
established a prima facie case, Unisource
did come forward with two legitimate,
non-discriminatory reasons for its
action. Unisource argued that it
realigned the credit administrator
positions in order to facilitate
communication between its credit
department and its sales department
offices located in Appleton and New
Berlin, Wisconsin, and secondly to
improve customer relations and account
collection in the region being served.

  Wells argues that she successfully
carried the burden of demonstrating that
these reasons were pretextual, and thus
the trial judge erred in granting
Unisource summary judgment. Wells vaguely
contends that Unisource’s plan to
relocate two credit-administrator
positions was part of a scheme to
discriminate against her because of her
race. In support Wells points only to the
deposition testimony of a co-employee
whose personal opinion was that Welsh,
the Unisource official who decided to
relocate Wells’s position, had a "problem
with [African Americans]." Conculsory as
sertions about a decision maker’s racial
prejudice are insufficient to establish
pretext. Oest v. Illinois Dept. of Corr.,
240 F.3d 605, 614 (7th Cir. 2001);
Gonzalez v. Ingersoll Milling Machine
Co., 133 F.3d 1025, 1032-33 (7th Cir.
1998).

  Wells further asserts that Unisource’s
decision to transfer her position was
pretextual because no white credit admin
istrators were transferred and that less
senior, white employees’ positions were
not transferred. But Wells ignores the
fact that Unisource transferred the
credit administrator position occupied by
Betsy Novinski, a white female, from
Itasca, Illinois, to New Berlin,
Wisconsin. Indeed, Unisource relocated
the positions of each of the two credit
administrators in Itasca, Illinois, who
handled Wisconsin-based accounts--both
Wells’s position and Novinski’s position.
Thus, the other Itasca credit
administrators who were not transferred
were not similarly situated to Wells
because their work assignments differed
from hers in that they were exclusively
assigned to dealing with Illinois-based
accounts, and not Wisconsin-based
accounts. Under the law, Wells cannot
establish pretext by pointing to
employees who were not similarly situated
to her. Gonzalez, 133 F.3d at 1033.

  Unisource provided an unrebutted, non-
discriminatory reason for its business
decision to restructure its credit
department--to improve the efficiency of
its credit department, including but not
limited to allowing for face-to-face
interaction of its employees, its
customer relations, and its collections
rate. Wells attempts to demonstrate that
this business reason was pretextual by
suggesting that there was some type of an
elaborate conspiracy among Unisource
management. According to Wells’s
unsupported conspiracy theory Unisource
desired to discharge her in 1998 and in
order to hide its discriminatory motive
it first promoted her, then waited
approximately one year for the dust to
settle and ultimately transferred not one
but two positions to Wisconsin in order
that it might hide its discriminatory
motive and force Wells either to accept a
transfer or to resign. Because of the
lack of evidence in the record in support
of Wells’s theory, we are not convinced
and refuse to base our decision on her
mere speculation. We have typically been
wary of allegations based on nothing but
an attempt to come up with a conspiracy
theory and in particular where there is
not a scintilla of evidence in the record
before us to support Wells’s theory.
Murray v. Chicago Transit Authority, 252
F.3d 880, 888 (7th Cir. 2001).

  Wells also argues that the reasons given
by Unisource to hire Lisa Jablenski
(rather than Wells herself) for the open
credit administrator position at its
Itasca facility were pretextual.
Unisource pointed out the marked
differences in the superior
qualifications of Jablenski (10 years
experience handling credit and collection
with accounts in the seven-figure range)
over Wells (13 months handling credit and
collection with exposure to accounts in
the five-figure range) as the reason for
its decision. Wells failed to provide any
evidence to establish that Unisource did
not really believe Jablenski to be more
qualified. Instead, Wells quibbles with
Unisource’s selection criteria and argues
that it erred in determining that
Jablenski was more qualified. As we often
comment, courts do not sit as super
personnel departments to second guess an
employer’s facially legitimate business
decisions. Stewart v. Henderson, 207 F.3d
374, 378 (7th Cir. 2000). It is well
established that a desire to hire a more
experienced or better qualified applicant
is a valid non-discriminatory reason on
which to base a hiring decision. Gorence
v. Eagle Food Centers, Inc., 242 F.3d
759, 765 (7th Cir. 2001). Moreover, Wells
failed to provide us with even an iota of
evidence to suggest that Unisource’s
reasons for selecting Jablenski were
pretextual. Indeed, Wells’s entire
argument that Unisource’s reasons for
hiring Jablenski were pretextual consists
of two paragraphs without a single
citation to any facts in the record that
would lend support to her speculation,
much less any relevant case law. We
repeatedly have made clear that
perfunctory and undeveloped arguments,
and arguments that are unsupported by
pertinent authority, are waived. Clay v.
Holy Cross Hospital, 253 F.3d 1000, 1002
n.1 (7th Cir. 2001).

  Lastly, Wells argues that the trial
court erred in granting Unisource summary
judgment on her retaliation claim. In
order for a plaintiff to establish a
prima facie case of retaliation under
Title VII, Wells was required to
establish that: 1) she engaged in a
statutorily protected activity; 2) she
suffered an adverse employment action;
and 3) there is a causal link between the
protected activity and the adverse
action. Velasco, 246 F.3d at 1017 n.6.

  Wells has failed to meet the third
prong. In order to establish a causal
link between protected activity and
anadverse employment action, a plaintiff
must demonstrate that the employer would
not have taken the alleged adverse action
"but for" the plaintiff’s protected
activity. Rizzo v. Sheahan, 266 F.3d 705,
715 (7th Cir. 2001); Johnson v.
Nordstrom, Inc., 260 F.3d 727, 732 (7th
Cir. 2001). Wells has failed to even
attempt to demonstrate the causal link
between her 1998 filing of a
discrimination claim and the 2000 plan to
restructure the credit department.
Indeed, her cursory argument suggests
only that her credit administrator
position was the only position
terminated, an assertion directly
contrary to the record before us. Wells
suggests that another circuit has found
that a retaliation claim was established
despite a fourteen-month time lapse
between expression and retaliation. See
Shirley v. Chrysler First, Inc., 970 F.2d
39 (5th Cir. 1992). But, in Shirley, the
plaintiff’s direct supervisor began to
harass the plaintiff immediately after
the filing of her EEOC complaint,
"mention[ing] her EEOC complaint to her
at least twice a week and ’harass[ing]
[her] to death about it.’" Id. at 43. The
facts of this case are not as compelling,
as the plaintiff-appellant Wells makes no
allegation that any supervisor ever
mentioned her 1998 discrimination charge,
much less "harassed" her about it. Even
were we to find this precedent
compelling, it stands only for the
proposition that Wells might have been
allowed to offer evidence that her
expression caused the adverse employment
action--not that it actually did. Wells
has simply failed to point to any
evidence in the record to support her
argument that Unisource would not have
made the business decision to restructure
its credit department unless she had
(more than one year earlier) complained
it had discriminated against her. We have
held in numerous cases that a "one-year
lapse between the protected expression
and the employee’s termination, standing
alone, [is] too attenuated to raise an
inference of discrimination." Oest, 240
F.3d at 616 n.8. In other words, the hint
of causation weakens as the time between
the protected expression and the adverse
action increases and the plaintiff must
offer additional proof of a causal nexus.
Sauzek v. Exxon Coal USA, Inc., 202 F.3d
913, 919 (7th Cir. 2000). Wells has
failed to offer any such evidence.

  The decision of the trial court is
AFFIRMED.


FOOTNOTE

/1 Unisource argues on appeal that Wells did not
establish a prima facie case because she did not
demonstrate that other, similarly-situated em-
ployees were treated more favorably. But by
conceding before the trial judge that Wells could
establish a prima facie case, Unisource has
waived these arguments on appeal. 4901 Corp. v.
Town of Cicero, 220 F.3d 522, 529 (7th Cir.
2000).
