In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3926

Karen Bell, Lolita Hill, Farro Assadi,
and Christina Prasinos,

Plaintiffs-Appellants,

v.

Environmental Protection Agency and
Carol M. Browner, in her official
capacity,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 CV 6349--Charles R. Norgle, Sr., Judge.


Argued May 19, 2000--Decided November 6, 2000



      Before Flaum, Chief Judge, and Manion and
Williams, Circuit Judges.

      Williams, Circuit Judge. The four
plaintiffs-appellants--Karen Bell, Lolita
Hill, Farro Assadi, and Christiana
Prasinos--allege that they were
unlawfully denied promotions to
Master/Expert positions within the
Environmental Protection Agency ("EPA").
Bell and Hill are African-Americans and
allege Title VII discrimination because
of their race. Assadi and Prasinos are
naturalized citizens--Assadi was born in
Iran and Prasinos was born in Greece--and
allege Title VII national origin
discrimination./1 In addition to these
claims, Bell, Hill, and Prasinos make a
retaliation complaint. The district court
granted summary judgment to the EPA on
all counts. Plaintiffs appeal./2 For
the reasons stated herein, we affirm in
part and reverse in part.

I

      The four plaintiffs worked as
environmental engineers in the Air
Enforcement and Compliance Assurance
section of the Air and Radiation Division
of the EPA’s Region V office in Chicago.
In 1996, the EPA posted four new Regional
Expert and Master positions, the next
level of promotion for engineers. The EPA
required all candidates to submit a
written application, a copy of their most
recent annual performance appraisal, and
a supplemental qualification statement.
Sixteen eligible candidates, including
plaintiffs, applied for the four Master
positions. For purposes of evaluating the
applicants, the EPA submitted a rating
plan that described the knowledge,
skills, and abilities an applicant needed
to have and listed five factors to be
considered. Assadi and Prasinos each
received a perfect score, while Bell
received a 69 and Hill received a 63 (out
of a possible 75). Two of the individuals
who were ultimately selected for the
position received perfect scores while
the other two were rated at 69.

      Three EPA section chiefs--William
MacDowell, Diane Sipe, and Peter
Spyropoulos--decided that they would
interview the candidates and make the
final selection as a panel. They agreed
to focus on the written applications and
on how well the applicants responded to
the agreed-upon interview questions. They
intended to reach a unanimous decision on
the four candidates but were unable to do
so. They did reach a consensus on three
candidates: Denny Dart, Katherine Kieth,
and Emmett Keegan. The Panel submitted
the impasse on the fourth position to
their supervisor, George Czerniak.
Ultimately, Linda Hamsing was selected as
the fourth successful candidate. All four
are white, native-born Americans.

      After the EPA announced the promotions,
plaintiffs sent a memorandum to Czerniak,
Sipe, MacDowell, and Spyropoulos raising
questions about the selection process.
Czerniak responded, but plaintiffs were
unsatisfied and filed formal complaints
with the Equal Employment Opportunity
Commission on February 5, 1997. In
September 1997, plaintiffs filed their
four-count complaint. The district court
granted summary judgment to the EPA on
all counts.

II

      We review de novo a district court’s
grant of summary judgment, considering
the evidence in a light most favorable to
the nonmovant and drawing all reasonable
inferences in favor of the nonmovant. See
Schneiker v. Fortis Ins. Co., 200 F.3d
1055, 1057 (7th Cir. 2000). Summary
judgment is only appropriate when the
pleadings, depositions, and other
materials in the record demonstrate that
there are no disputed facts and the
movant is entitled to summary judgment as
a matter of law. See id. (citing Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)).

      Plaintiffs make various disparate
treatment claims against the EPA,
alleging race and national origin
discrimination. Because they cannot show
any direct evidence of discrimination,
plaintiffs rely on the burden-shifting
approach delineated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
Under this approach, plaintiffs must
first make out a prima facie case of
discrimination by demonstrating that (1)
they belong to a protected group; (2)
they applied for and were qualified for
the positions sought; (3) the EPA
rejected them for the positions; and (4)
the EPA granted promotions to persons who
were not in the protected groups. See
Stockett v. Muncie Ind. Transit Sys., 221
F.3d 997, 1001 (7th Cir. 2000); Wallace
v. SMC Pneumatics, Inc., 103 F.3d 1394,
1397 (7th Cir. 1997). Once plaintiffs
establish their prima facie case, we
presume that they were discriminated
against, and EPA must articulate a
legitimate, nondiscriminatory reason for
its employment action. McDonnell Douglas,
411 U.S. at 802; Stockett, 221 F.3d at
1001; Sirvidas v. Commonwealth Edison
Co., 60 F.3d 375, 377-78 (7th Cir. 1995).
Once the EPA has met this production
burden, plaintiffs must establish that
the reason offered by the EPA is merely a
pretext for discrimination. See Texas
Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); Stockett, 221
F.3d at 1001; Sirvidas, 60 F.3d at 378.
In the case at bar, both sides agree that
plaintiffs have established a prima facie
case and that the EPA has articulated a
nondiscriminatory reason for promoting
others instead of plaintiffs. They
disagree, however, whether plaintiffs
have established that EPA’s proffered
reasons are pretextual.
   Plaintiffs cannot prevail at trial if
the fact-finder finds that the EPA
"honestly believed in the
nondiscriminatory reasons it offered,
even if the reasons are foolish or
trivial or even baseless." Hartley v.
Wisconsin Bell, Inc., 124 F.3d 887, 890
(7th Cir. 1997). This court "does not sit
as a super-personnel department that
reexamines an entity’s business
decisions." Dale v. Chicago Tribune Co.,
797 F.2d 458, 464 (7th Cir. 1986); accord
Debs v. Northeastern Ill. Univ., 153 F.3d
390, 396 (7th Cir. 1998). However,

[t]he question before us in reviewing the
grant of summary judgment is only whether
. . . [the plaintiff] produced evidence
from which a rational fact-finder could
infer that the company lied in saying
that it fired . . . him because he was an
unsatisfactory worker. If the only reason
an employer offers for firing an employee
is a lie, the inference that the real
reason was a forbidden one, such as age,
may reasonably be drawn. This is the
common sense behind McDonnell Douglas.

Anderson v. Baxter Healthcare Corp., 13
F.3d 1120, 1124 (7th Cir. 1994); see also
Perdomo v. Browner, 67 F.3d 140, 145 (7th
Cir. 1995) (ruling that in order to
survive a summary judgment motion,
plaintiffs "need not prove that the real
reason for [the EPA’s] action was
discriminatory"). "Because a fact-finder
may infer intentional discrimination from
an employer’s untruthfulness, evidence
that calls truthfulness into question
precludes summary judgment." Perdomo, 67
F.3d at 145; accord Reeves v. Sanderson
Plumbing Prods, Inc., 120 S. Ct. 2097,
2110 (2000) (ruling in an analogous Rule
50 context that "the court should give
credence to the evidence favoring the
nonmovant as well as that ’evidence
supporting the moving party that is
uncontradicted and unimpeached, at least
to the extent that that evidence comes
from disinterested witnesses’" (quoting
9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure
sec. 2529, p. 300 (2d ed. 1995))).

      The EPA’s asserted reason for not
promoting plaintiffs is that they were
not the best qualified candidates. The
district court complained that plaintiffs
took a "shotgun" approach to the pretext
issue by presenting several categories of
evidence that purport to demonstrate
pretext. After the district court
reviewed the evidence, it found, as a
whole, that plaintiffs failed to raise a
question of material fact on the issue of
pretext. Plaintiffs argue on appeal that
the district court erred in resolving
disputed factual issues, drawing
unsupported inferences in favor of the
EPA, and excluding admissible evidence.


     A. Employment Discrimination

      Plaintiffs contend that there is
abundant direct, circumstantial, and
statistical evidence supporting their
employment discrimination claims.
Plaintiffs argue that (1) they were
demonstrably better qualified than the
selectees; (2) they introduced unrebutted
statistical evidence that supported their
claims; (3) EPA’s violations of their
normal procedures casts doubt on the
legitimacy of their promotion decisions;
(4) the credibility of the EPA’s story is
drawn into question by illogical and
inconsistent statements and rationales
offered by the EPA’s decisionmakers; and
(5) anecdotal evidence presented by
plaintiffs demonstrates discriminatory
animus by the decisionmakers and a
pattern and practice of discrimination.
The district court correctly found that
(1) the EPA did not deviate from its own
promotion procedures; (2) the alleged
inconsistent statements merely
illustrated that the panel was having
difficulty reaching a unanimous decision;
and (3) the anecdotal evidence was not
connected to plaintiffs’ discrimination
claims. However, we find that plaintiffs’
comparative qualifications and their
statistical evidence preclude summary
judgment.


      1.   Comparative Qualifications

      First, plaintiffs argue that the EPA’s
reasons were pretextual because they
were, in fact, more qualified than those
employees chosen for promotion.
Specifically, all four plaintiffs had
been employed with the EPA for a longer
period of time than any of the selectees.
Moreover, several of the plaintiffs had
received more service achievement awards
than the selectees: Bell received more
awards than any of the selectees;
Prasinos and Assadi received as many
awards as one selectee and more than the
other three selectees; and Hill received
more awards than three of the selectees.
Finally, Assadi and Prasinos received
perfect scores on the preliminary
candidate rankings and Bell’s score,
while less than two of the selectees,
equaled the other two. Hill’s score,
however, was less than the selectees./3

      Nonetheless, the district court ruled
that plaintiffs’ argument was not
persuasive. According to the district
court, "the issue is whether the EPA
honestly believed that it promoted the
most qualified persons for the
positions." The district court is not
quite correct. At the summary judgment
stage, the district court evaluates
whether plaintiffs have produced evidence
from which a fact-finder could infer that
the employer lied about the reasons for
promoting the selectees. We recently
addressed a similar situation in a case
involving the EPA:

In sum, [the plaintiff] has presented
specific evidence that calls into
question the veracity of the EPA’s reason
for failing to promote her: that she was
not as qualified as the other candidates.
Although a fact-finder at trial may
conclude that the EPA honestly believed
that [the plaintiff] was not as
qualified, and therefore not liable, when
weighing or balancing [the plaintiff’s]
credentials and qualifications against
those of [the selectees], it is quite
evident that her qualifications not only
match those of the successful appointees
but may very well exceed those for the
two attorneys chosen.

Perdomo, 67 F.3d at 146.

      Just as in Perdomo, a fact-finder in the
instant case could reasonably find that
the EPA was dishonest when it concluded
that the selectees were more qualified
for the promotions than the plaintiffs
were. Plaintiffs had more experience,
received more performance awards, and
scored at or near the top in the
preliminary candidate objective rankings.
The EPA cannot escape scrutiny merely by
claiming that they selected the most
qualified candidates. Furthermore, an
internal EPA document suggests that the
EPA did not select the best candidates.
      Plaintiffs obtained, in discovery, a
memorandum written by one of the Panel
members prior to any decision being made
regarding one of the open Master
positions. The memorandum stated:

The issue of selection causes me a great
concern. . . . This is the first time in
my career that I cannot support an issue
which is so clear in my mind and where I
think others are totally out of reality.
We want to select the best. . . . I
cannot see that [selectees] Kathy [Kieth]
and Denny [Dart] are superior to
[plaintiff] Farro [Assadi]. I cannot
support them because I believe they are
not the best. . . . I consider Farro
[Assadi] better by far than all of them
and [plaintiff] Karen [Bell] better than
. . . [selectee] Linda [Hamsing].

The district court rejected this evidence
as inadmissible hearsay. Specifically,
the district court found that the
evidence did not fall within the Fed. R.
Evid. 803(3) hearsay exception, allowing
a statement of the declarant’s then
existing state of mind./4 The district
court rejected use of the memorandum
because it found that plaintiffs--at
least Assadi and Bell--were attempting to
use it, not to establish the declarant’s
state of mind, but to prove that they
were, in fact, better qualified than the
selectees.

      Plaintiffs were attempting to use the
memo, however, to counter the EPA’s
assertion that it honestly believed it
was promoting the four best candidates.
Plaintiffs made this argument clear in
their 12M response. Moreover, the
memorandum is admissible under Fed. R.
Evid. 801(d)(2)(D) as an admission by a
party opponent./5 Furthermore, the
memorandum provides some support for
plaintiffs’ argument that the EPA’s "more
qualified candidates" statement was
dishonest. Consequently, the district
court should have admitted the
memorandum.


      2.   Statistical Evidence

      Next, plaintiffs argue that the district
court completely disregarded their
statistical evidence of discrimination.
Plaintiffs’ statistical report analyzed
all EPA promotions from 1995 through 1998
in the upper Midwest region for two
positions, including the Masters position
at issue in this case. Plaintiffs’ expert
found a statistically significant
difference between the likelihood that
foreign born applicants receive
promotions and that other applicants
receive these promotions. The expert also
found that African-American employees
receive such positions at a lower rate
than other employees, although the
difference was not statistically
significant./6 The district court
refused to include these findings in its
summary judgment analysis because it
concluded that the relevant labor market
for a statistical analysis was the 16
qualified applicants for the Masters
positions and that this sample size was
too small, as a matter of law, to
establish pretext.

      While we have rejected efforts to use
statistics as the primary means of
establishing discrimination in disparate
treatment situations, see Plair v. E.J.
Brach & Sons, Inc., 105 F.3d 343, 349
(7th Cir. 1997), it can be utilized. "In
conjunction with other evidence of
disparate treatment, however, statistics
can be probative of whether the alleged
disparity is the result of
discrimination." Kidd v. Illinois State
Police, 167 F.3d 1084, 1101 n.16 (7th
Cir. 1999) (citing McDonnell-Douglas, 411
U.S. at 805).

      Moreover, this is not a systemic
(pattern and practice) disparate
treatment case. In a pattern and practice
disparate treatment case, statistical
evidence constitutes the core of a
plaintiff’s prima facie case. Within the
McDonnell-Douglas individual disparate
treatment model, however, statistical
evidence is only one small part of a
substantial web of evidence indicating
pretext. Consequently, evidence of
systemic disparate treatment is relevant
to and probative of the issue of pretext
even when it is insufficient to support a
pattern and practice disparate treatment
case. See Bruno v. W.B. Saunders Co., 882
F.2d 760, 767 (3d Cir. 1989) (ruling that
"in individual disparate treatment cases
such as this, statistical evidence, which
may be helpful, though ordinarily not
dispositive, need not be [as] finely
tuned" as in the class action--systemic
employment practices--cases).

      The usefulness of statistics in an
individual treatment case to show pretext
"depends on all the surrounding facts and
circumstances." International Bhd. of
Teamsters v. United States, 431 U.S. 324,
340 (1977). Statistical evidence,
therefore, should be admitted as evidence
if it meets the Fed. R. Evid. 401
requirement that it "make[s] the
existence of any fact that is of
consequence to the determination of the
action more probable or less probable
than it would be without the evidence."
Accord Bruno, 882 F.2d at 767. Although
the statistics in this case may be too
broad to support a prima facie case of
systemic disparate treatment, they can be
admitted as probative evidence indicating
pretext.

      A valid statistical analysis must
encompass the relevant labor market. See
Kidd, 167 F.3d at 1102. The district
court incorrectly limited the relevant
labor market to only those 16 persons
qualified for the Masters positions. We
have consistently held otherwise in
similar cases. For example, a professor
who charged his employer with age
discrimination for failing to promote him
may "subject all of the employer’s
decisions to statistical analysis to find
out whether age makes a difference." Kuhn
v. Ball State Univ., 78 F.3d 330, 332
(7th Cir. 1996). We did not suggest that
the professor’s relevant job market is
only him. In another case, a former
employee of the Illinois Department of
Public Health brought a sex
discrimination suit against her former
employer. See Riordan v. Kempiners, 831
F.2d 690 (7th Cir. 1987). We ruled
admissible statistical evidence that
showed a systematic wage disparity
between male and female employees. See
id. at 698. "If it turned out that
[defendant] always recommended higher pay
for men than women, this would be some
evidence that [plaintiff] hadn’t gotten
the raise she wanted because she was a
woman." Id.

      Plaintiffs’ statistical report looked at
all promotions in the upper Midwest
region for two positions, including the
Masters position at issue in this case.
Although the district court and the EPA
argue that this report was too broad, our
case law finds this type of labor market
appropriate for statistical analysis.
See, e.g., Kidd, 167 F.3d at 1101-02
(allowing statistical evidence in an
individual disparate treatment case that
compared the racial makeup of Illinois
State Police cadet classes from 1986
through 1990 with the racial makeup of
the subgroup of cadets who were
discharged); see also McDonnell-Douglas,
411 U.S. at 804-05 (noting that
"statistics as to [the company’s]
employment policy and practice may be
helpful to a determination of whether
[the complained of action] conformed to a
general pattern of discrimination" and is
relevant evidence of pretext).

      Plaintiffs’ statistical data suggests a
general pattern of discrimination toward
the foreign born. Although plaintiffs’
expert found that blacks received
promotions at a lower rate than
nonblacks, he did not find that the
difference was statistically significant.
The expert also found a significant
difference when he combined the results
of foreign born and black applicants.
Plaintiffs argue that this result means
that "white employees are favored over
both African-American and foreign born
employees." Furthermore, plaintiffs
contend that "[c]onsidering the two
minority groups separately has the effect
of understating the magnitude of
defendants’ discriminatory conduct
because defendant gets ’credit’ in
separate analyses for discriminating
against the other protected class."
Plaintiffs’ "credit" analysis does not
make any statistical sense. All it tells
us is that either African-Americans or
foreign born employees (or both) are
promoted less often, statistically
speaking. Until we break out the two
groups, we cannot examine the possible
underlying cause. (It is likely that if
plaintiffs’ expert combined white and
foreign born applicants together, he
could show a statistically significant
shortfall, but what does that mean?)

      While plaintiffs’ report is most
persuasive in its finding that foreign
born employees, who are otherwise
qualified, are not promoted as often as
native born employees, the evidence that
blacks are not promoted as often as
nonblacks, even though not statistically
significant, is still circumstantial
evidence of possible discrimination.
"Different kinds and combinations of
evidence can create a triable issue of
intentional discrimination." Troupe v.
May Dept. Stores, Inc., 20 F.3d 734, 736
(7th Cir. 1994). Evidence of intentional
discrimination can include "evidence,
whether or not rigorously statistical,
that employees similarly situated to the
plaintiff other than in the
characteristic (pregnancy, sex, race, or
whatever) on which the employer is
forbidden to base a difference in
treatment received systematically better
treatment." Id. (emphasis added).
Consequently, the district court should
have considered plaintiffs’ statistical
evidence.


      3.   Conclusion

      Plaintiffs’ comparative qualifications
and their statistical evidence preclude
summary judgment on their Title VII
discrimination claims./7 Even if the
pieces of evidence were not conclusive by
themselves, they sufficiently countered
the EPA’s assertion that it honestly
believed it was promoting the best
candidates.

For it is not true that to get over the
hurdle of summary judgment a plaintiff
must produce the equivalent of an
admission of guilt by the defendant. All
that is required is evidence from which a
rational trier of fact could reasonably
infer that the defendant had [failed to
promote] the plaintiff because the latter
was a member of a protected class . . .
.

Troupe, 734 F.3d at 737. Here, a jury
could reasonably find that plaintiffs
were more qualified than the selectees.
Accordingly, we reverse the district
court’s grant of summary judgment on
plaintiffs’ Title VII claims.


      B. Retaliation

      Three of the plaintiffs also argue that
the district court erred in granting
summary judgment to the EPA on their
retaliation claims. Plaintiffs Bell,
Hill, and Prasinos testified to numerous
incidents of alleged retaliation,
including demeaning assignments, verbal
abuse, surveillance, diminished
responsibilities, refusal to cooperate on
job assignments, and placements in
situations designed to result in failure.

      A prima facie case of retaliation is
established when plaintiffs show that (1)
they engaged in protected activity; (2)
they suffered an adverse employment
action subsequent to their participation;
and (3) a causal connection exists
between the adverse employment action and
their participation in protected
activity. Smart v. Ball State Univ., 89
F.3d 437, 440 (7th Cir. 1996). The
district court concluded that plaintiffs
failed to demonstrate a prima facie case
of retaliation.

      Although we define "adverse employment
action" broadly, not everything that
makes an employee unhappy is an
actionable adverse action. See id. at
441. For an employment action to be
actionable, it must be a "significant
change in employment status, such as
hiring, firing, failing to promote,
reassignment with significantly different
responsibilities, or a decision causing a
significant change in benefits."
Burlington Indus. v. Ellerth, 524 U.S.
742, 761 (1998); accord Ribando v. United
Airlines, Inc., 200 F.3d 507, 511 (7th
Cir. 1999). Plaintiffs failed to show
that they suffered actionable adverse
employment action.

      Bell asserts that she left her section
for a new position with the EPA because
of a Panel member’s conduct. She did not
present any evidence, however, of a
material change in the terms or
conditions of her employment. Hill also
left her section for a new position with
the EPA after the Panel did not promote
her. Like Bell, Hill did not present any
facts that indicated a material change in
the terms and conditions of her
employment. Prasinos asserts that one of
the Panel members refuses to greet her or
speak to her and that he cancelled a
conference called by her. These are
trivial matters that do not rise to the
level of actionable retaliation. See
Rabinovitz v. Pena, 89 F.3d 482, 488 (7th
Cir. 1996); Dahm v. Flynn, 60 F.3d 253,
257 (7th Cir. 1994). Accordingly, we
affirm the district court’s grant of
summary judgment to the EPA on the
retaliation claims.
III

      For the reasons stated herein, we Affirm
the district court’s grant of summary
judgment on plaintiffs’ retaliation
claims but Reverse the district court’s
grant of summary judgment on plaintiffs’
Title VII claims. Accordingly, we Remand
the case for further proceedings
consistent with this opinion.


Appendix

Tenure    Experience         Job
Awards/8 Rating Score Rank/9 Statistical
Support
Plaintiffs
Bell 1986;/10 * region coordinator
* F.E. engineering license          1 gold
2 bronze 69       4       Minor
Hill     1987     1 bronze       63 Minor
Assadi    1980 lead engineer          1 gold
1 bronze     75     1     Significant
Prasinos
1986
* lead engineer
* region coordinator
* project officer          2 bronze    75 Significant
Selectees
Dart    1990      lead engineer 75         3
Kieth    1991       69     2
Keegan    1991        69
Hamsing      1987        lead engineer     75



/1 Title VII makes it unlawful for an employer "to
discriminate against any individual with respect
to his compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex, or
national origin." 42 U.S.C. sec. 2000e-2(a)(1).

/2 Although Hill also claimed gender discrimination,
she waived the complaint below and does not raise
the issue on appeal. Assadi also claimed age
discrimination but does not appeal this issue.

/3 This data is summarized in the appendix.

/4 Rule 803 states in relevant part:

      The following are not excluded by the hearsay
rule, even though the declarant is available as
a witness:

      * * *
      (3) Then existing mental, emotional, or physical
condition. A statement of the declarant’s then
existing state of mind, emotion, sensation, or
physical condition . . ., but not including a
statement of memory or belief to prove the fact
remembered or believed . . . .

/5 The EPA never attempted to have the district
court rule the memorandum inadmissible; the
district court ruled on this issue sua sponte.
Furthermore, in its appellate brief, the EPA does
not attempt to support the district court’s
ruling; instead, it attempts to minimize the
memorandum’s impact.

/6 The data indicated that 20 African-Americans
received promotions during this time period, but
that the applicant flow would have expected 25.
During this same time period, 19 foreign-born
employees received promotions, while the
applicant flow would have expected 34.

/7 This evidence is summarized in the appendix.

/8 One unidentified selectee received two medals and
the other selectees received no medals.

/9 This is testimony given by one of the panel
members, Peter Spyropoulos, of the way that he
ranked the applicants. In other testimony he had
Bell ranked as high as "2".

/10 Bell worked for Dow Chemical as an engineer
between 1988 and 1991.




      MANION, Circuit Judge, concurring. I agree with
the court that for the claims of the three
plaintiffs alleging retaliation, summary judgment
should be granted in favor of the defendant. I
also agree that at this stage, at least, summary
judgment on the plaintiffs’ claims for
discrimination for failure to promote is not
appropriate. Statistical evidence is a valid
consideration in determining whether there were
any discriminatory practices in the promotion
procedure and decision. But I emphasize that
statistical evidence alone cannot and should not
carry the day. See Plair v. E.J. Brach & Sons,
Inc., 105 F.3d 343 (7th Cir. 1997). I further
note that, in addition to the comparative
qualifications such as test scores, experience
and achievement awards as summarized on the
document attached to this opinion, there are
other subjective factors. As long as there is no
unlawful discriminatory intent, such personnel
decisions should be left to the employer.
Likewise, the plaintiffs have unique distinctions
among themselves regarding their qualifications.
If a jury is to decide whether one or more
plaintiffs should have been promoted instead of
one or more of those who received the promotions,
the jury’s decision must be confined to a
conclusion that race or national origin was or
was not a determining factor in the failure to
promote and must not be because the jury’s own
subjective analysis would deem one or another of
the plaintiffs more qualified for the job.
