                                In the

United States Court of Appeals
                 For the Seventh Circuit

No. 07-3772

G EORGE JACKSON,
                                                    Plaintiff-Appellant,
                                    v.

C ITY OF C HICAGO,
                                                   Defendant-Appellee.


               Appeal from the United States District Court
          for the Northern District of Illinois, Eastern Division.
               No. 06 C 3654—Matthew F. Kennelly, Judge.



    S UBMITTED N OVEMBER 3, 2008  —D ECIDED JANUARY 13, 2009




    Before K ANNE, E VANS, and SYKES, Circuit Judges.
  E VANS, Circuit Judge. George Jackson contends that the
City of Chicago discriminated against him by denying
him two promotions he sought in 2004. The district court
granted summary judgment for the City and Jackson
appeals.




  We granted the parties’ motion to waive oral argument, so
the case is submitted on the briefs.
2                                               No. 07-3772

  Jackson, an African-American man in his fifties, began
his employment with the City of Chicago in 1987 as a
carpenter in the Public Works Department. Since
August 2003 he has been a foreman of carpenters in the
Department of Transportation. In 2004, the City posted
an announcement for two positions as general foreman of
general trades—one in the Department of Transportation
and the other in the Department of General Services. The
general foreman of general trades coordinates the
activities of all the trade unions on a given project.
  Jackson and a man named Michael Blake applied for
the position in the Department of Transportation. When
the job was posted, Jackson had 30 years of experience
as a journeyman carpenter. Prior to his employment with
the City, Blake worked at a construction company, begin-
ning as a laborer/apprentice but becoming a journeyman
carpenter through the sponsorship of the carpenters’
union. In the interview for the job, the candidates were
asked about their experience estimating the materials
and manpower needed to complete a project. Blake had
relevant experience, and Jackson acknowledged to the
interviewers that he did not. In fact, though it apparently
did not come up at the interview, Jackson had estimated
jobs while working for the Chicago Housing Authority.
  Because written communications skills are important
for the position of general foreman, the job selection
process also involved a test of those skills. Each candidate
wrote a narrative answer describing how he would replace
a deck. There also were questions, for which there
were objectively correct answers, testing each candidate’s
No. 07-3772                                                  3

ability to read and interpret drawings and blueprints.
Numerical scores on a 5.0 scale were assigned to the
answers: Blake’s score was a near-perfect 4.75 and Jack-
son’s was 2.25. Blake got the job.
  The second position, general foreman of general trades
in the Department of General Services, drew several
candidates including Jackson, a man named Kevin
O’Gorman, and a number of others for the spot. This
time, as part of the interview process, candidates were
required to complete a written work sample, which
included questions relating to carpentry skills as well as
personnel matters that a general foreman would be ex-
pected to handle. All the candidates except Jackson
submitted the sample. Jackson denies that candidates
were asked to complete a written work sample. He says
that the City “has produced no evidence that a work
sample was given as part of the interview process.” The
City, on the other hand, submitted an affidavit from
David Donovan, who at the time was the assistant com-
missioner, Bureau of Trades & Engineering, in the Depart-
ment of General Services. He was one of the interviewers
for the position. Donovan said that all the candidates
completed the sample except for Jackson, who refused.
 O’Gorman received the highest combined score on the
work sample and the interview. He was the one promoted.
  Jackson filed this case alleging race and age discrimina-
tion in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-5(f), and the Age Discrimination in
Employment Act, 29 U.S.C. § 626(c). He appeals the grant
of summary judgment for the City on the Title VII race
4                                                No. 07-3772

discrimination claim only. We review a grant of summary
judgment de novo. Harrell v. U.S. Postal Service, 445 F.3d
913 (7th Cir. 2006).
  Jackson has proceeded under the indirect method of
proof set out in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). To succeed, he must first establish a prima
facie case of discrimination. If he does so, the City must
articulate a legitimate, nondiscriminatory reason for the
adverse employment action. If the City succeeds, the
burden of production shifts back to Jackson to prove that
the stated reason for the adverse action was pretextual. To
establish a prima facie case of race discrimination in a
failure to promote claim, Jackson must establish, by
a preponderance of evidence, that he is a member of a
protected class; he is qualified for the position; he was
rejected for the position; and the position was given to a
person outside the protected class who was similarly or
less qualified than he. Jordan v. City of Gary, Ind., 396
F.3d 825 (7th Cir. 2005). If the person who got the promo-
tion was better qualified, the plaintiff’s case fails.
  Ultimately, this case rises or falls on the issue of similar
qualifications. Jackson cannot prevail on a claim that he
was similarly or better qualified to either Blake or
O’Gorman. But, he says, they had an advantage in that
they were given training opportunities which were
denied to him as a result of discrimination.
  The training opportunities, Jackson argues, involve an
employee’s being chosen to “act up.” What that means
is that an employee is given a chance to fill a higher
position, often supervisory, for some period of time.
No. 07-3772                                                  5

Through the acting-up process the employee receives
training and experience that he would not otherwise
have. Jackson says that the City discriminated against
him on the basis of race by not allowing him to act up and
thus put him at a disadvantage in the promotion process.
Were it not for this discrimination, he says he would have
qualifications similar to those of Blake and O’Gorman. The
argument has some surface appeal, but it cannot be
sustained.
   In order to challenge an employment practice under
Title VII, the employee must first file a charge with the
Equal Employment Opportunity Commission. Depending
on the state in which the charge is brought, it must be
filed within 180 or 300 days. 42 U.S.C. § 2000e-5(e)(1). In
this case, the limit is 300 days. The “acting-up” decisions
were not part of Jackson’s charge before the Equal Em-
ployment Opportunity Commission and, in fact, could not
have been because they fell outside the 300-day time limit.
  Jackson’s theory is that the acting-up claims were not
independent claims that had to be presented in an EEOC
charge, but rather were offered to support his primary
claim regarding discrimination in the promotion process.
This theory has been foreclosed by the Supreme Court a
number of times, recently and most emphatically in
Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162
(2007).1


1
  We are, of course, aware that the decision in Ledbetter has
sparked significant controversy with critics vowing legislative
                                                 (continued...)
6                                                  No. 07-3772

  The line of cases culminating in Ledbetter begins with
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), where a
female flight attendant 2 was forced to resign because
the airline did not employ married flight attendants, a
practice now long, and wisely, abandoned. Ms. Evans was
rehired some years later, but she was treated as a new
employee for seniority purposes. She sued, arguing that
the airline’s refusal to give her credit for prior service
gave “present effect to [its] past illegal act and thereby
perpetuate[d] the consequences of forbidden discrim-
ination.” At 557. The Court rejected her argument, saying
that the earlier discrimination did not constitute a
present violation.
  Similarly, in National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002), the Court explained that the term
“employment practice” generally refers to a “discrete act
or single ‘occurrence’ ” taking place at a particular time.
At 110-11. Examples of such discrete acts are “termina-
tion, failure to promote, denial of transfer, [and] refusal
to hire.” At 114.
  In Ledbetter, the Court extended the principle to
claims involving discrimination in pay. The dissent



1
  (...continued)
action to reverse its holding. See www.thebusinessledger.com
and the article posted there by Tim McLean on July 24, 2007.
2
  Until the 1970s, almost all “flight attendants” (a politically
correct, gender-neutral term) were women, and they were,
with few exceptions, called “stewardesses.”
No. 07-3772                                                7

argued that the extension to pay discrimination went a step
too far; that it was “a cramped interpretation of Title VII.”
The dissent looked to Bazemore v. Friday, 478 U.S. 385
(1986), which involved a situation where paychecks
were issued pursuant to past discriminatory pay sched-
ules—one for whites, one for African-Americans. The dual
pay schedules were abandoned, but pay disparities
attributable to the old dual pay schedules persisted. The
Bazemore Court found that the past discrimination meant
that the employer engaged in intentional discrimination
each time it issued a paycheck in the present.
  But rather than extending the Bazemore principle, the
majority in Ledbetter relied on Evans and Morgan. Ledbetter
was a salaried employee at a Goodyear plant where all
such employees were given or denied pay raises based
on performance evaluations completed by supervisors.
She alleged that she was given sub-par evaluations in
the past because of her sex and that her pay had not
increased as much as it would have had she been fairly
evaluated. The actual denials of pay raises (based on
alleged discriminatory performance evaluations) were
outside the limitations period, but she claimed that pay-
checks issued during the charging period were separate
acts of discrimination. The Court rejected her claim,
reaffirming the Evans line of cases: a “new violation
does not occur, and a new charging period does not
commence, upon the occurrence of subsequent nondis-
criminatory acts that entail adverse effects resulting
from the past discrimination.” At 2169.
  Even if Evans and Morgan left any doubt, Ledbetter
forecloses Jackson’s claim. The acting-up decisions here
8                                                No. 07-3772

occurred outside the 300-day charging period. Jackson was
not similarly qualified to Blake, especially considering his
low score on the objective promotion test. Nor was he
similar to O’Gorman who, like other applicants except
Jackson, submitted a written work sample. The acting-up
decisions were discrete acts which could be considered
only if they occurred within the appropriate time
period covered by his EEOC charge. It’s true that, in
certain situations, untimely actions can be used as “back-
ground evidence” to support a claim. Evans, Morgan, and
Fischer v. Avanade, Inc., 519 F.3d 393 (7th Cir. 2008). Morgan
allows its use in certain hostile work environment cases.
But its use here as “background evidence” would require
a mini-trial: What were the available “acting-up” posi-
tions? Who applied? What were the qualifications of those
who were accepted? How did they compare to Jackson?
What skills were learned or enhanced by getting a chance
to “act up”? How would those skills have better enhanced
Jackson’s chances of getting the positions that were
given to Blake and O’Gorman? These are just a few of
the issues that would have to be considered to even
make the alleged “background evidence” relevant to the
two positions Jackson sought but didn’t get in 2004.
  Finally, as the Court said in Morgan, at 113, “discrete
discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed
charges. Each discrete discriminatory act starts a new
clock for filing charges alleging that act.” A new viola-
tion does not occur “upon the occurrence of subsequent
nondiscriminatory acts that entail adverse effects re-
sulting from the past discrimination.” Ledbetter, at 2169.
No. 07-3772                                        9

  Accordingly, the judgment of the district court is
A FFIRMED.




                       1-13-09
