                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Argued June 14, 2005
                            Decided November 23, 2005

                                      Before

                     Hon. DIANE P. WOOD, Circuit Judge

                     Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                     Hon. DIANE S. SYKES, Circuit Judge

No. 04-2569

CONNIE M. GULLETT,                         Appeal from the United States District
             Plaintiff-Appellant,          Court for the Central District of Illinois.

      v.                                   No. 02 C 1305

TOWN OF NORMAL, ILLINOIS,                  Michael M. Mihm,
           Defendant-Appellee.             Judge.

                                    ORDER

       After she was turned down for a full-time public works job, Connie Gullett
sued the Town of Normal, Illinois (“the Town”), under Title VII, 42 U.S.C. §§ 2000e
et seq., asserting disparate treatment and disparate impact sex discrimination
claims. The district court granted summary judgment for the Town, holding that
Gullett lacked evidence of intentional discrimination or a policy disparately
impacting women. We affirm.

                                  I. Background

      Between 1996 and 2001, Gullett worked seven months of the year as a
seasonal Street Maintenance Specialist for the Streets Division of the Public Works
Department in the Town of Normal. She helped repair streets and remove snow,
No. 04-2569                                                                     Page 2

leaves, and trees. Alan Slagell, who had been her coworker and friend when she
was a municipal leaf raker in 1995, became her supervisor in 1996.

       While a seasonal employee, Gullett unsuccessfully sought full-time,
nonseasonal jobs in the Public Works Department. Twice she applied for jobs with
the Waste Division. She also applied twice for full-time positions as a Street
Maintenance Specialist, but each time a man with experience in the Waste Division
was hired instead. In 2001 Gullett applied again for a position as a full-time Street
Maintenance Specialist and was again passed over. A hiring panel—comprised of
Slagell; his assistant supervisor, Kenny Wey; and the Town’s Human Resources
Director, Jose Garibay—instead hired Eric Perry, an employee in the Waste
Division.

       Perry’s hire prompted Gullett to file a charge of discrimination with the
Equal Employment Opportunity Commission. She claimed that she was more
qualified than Perry but that he was hired because he is male. She also claimed
that the Town had a policy of hiring full-time street employees exclusively from the
all-male Waste Division. She filed this suit after receiving a right-to-sue letter, and
the parties filed cross-motions for summary judgment.

       With respect to her claim of disparate treatment, Gullett argued that Slagell
dishonestly steered the panel into hiring Perry, even though she was better
qualified. As proof that she was the stronger candidate, Gullett submitted the
deposition testimony of a coworker, Ronald Crow, who stated that as a seasonal
worker Gullett had performed all or most of the tasks required for the full-time
position. Gullett also submitted an affidavit from psychologist John Binning, who
reviewed the candidates’ application materials and the hiring panelists’ interview
notes and opined that Gullett was the best candidate.

        Gullett also contended that Slagell lied to the other hiring panel members
about her qualifications. She pointed to Garibay’s interview notes—which include
such notations as “limited in abilities” and “WR not very good for seasoned seasonal
EE”—and characterized this as evidence that Slagell must have told the panel that
she had a “poor work record” and was unqualified. She also submitted a page from
Slagell’s interview notes on which he wrote “most qualified,” claiming that this
notation referred to her; however, Perry is the only candidate mentioned by name
on that page of the notes. Finally, Gullett submitted additional deposition
testimony from her coworker Crow, who stated that in the summer of 2000 he
overheard Slagell say he was “never going to hire that fucking bitch.” Crow also
testified, however, that he only caught bits of this private conversation and just
assumed that Slagell was referring to Gullett since she was the only woman
working in street maintenance at the time. Slagell denied making the comment.
No. 04-2569                                                                  Page 3

       The Town did not dispute that Gullett was minimally qualified but instead
offered evidence that all three hiring panel members deemed Perry to be better
qualified. Slagell testified that only Perry knew the brush disposal routes and how
to operate a bucket truck. Perry was also more experienced in operating certain
other equipment and in performing tasks involving hot asphalt, concrete, and
excavations. Wey knew both Gullett and Perry and thought Perry was more a “self-
starter.” Garibay explained that Perry was among his top choices and that he
ultimately voted for him because Slagell and Wey thought he was the best choice.
The district court entered summary judgment for the Town on the disparate
treatment claim because there was no evidence that Slagell was the functional
decision-maker or that Perry was hired for any reason other than that he was
better qualified.

        As for her claim of disparate impact, Gullett attempted to show that the
Town had a policy of filling full-time positions for Street Maintenance Specialists
from the all-male ranks of the Waste Division. To this end, Gullett produced
deposition testimony by Crow and another coworker indicating that Slagell told
part-time workers that only applicants with experience in the Waste Division would
be hired as full-time Street Maintenance Specialists. Both coworkers expressly
conceded, however, that they understood this to be only Slagell’s preference, not
official municipal policy. Gullett also pointed to the fact that the last four
individuals hired as full-time Street Maintenance Specialists were from the Waste
Division; Binning opined that this “statistic” demonstrated disparate impact on
women. The Town responded with testimony from Slagell and Garibay that the
hiring panel had no such policy and did not exclude candidates from outside the
Waste Division. Slagell admitted that in the years before 2001, he preferred to hire
Waste Division employees when all else was equal because, in his view, waste
carriers had paid “their dues.” But this was only his personal preference; in fact,
the panel interviewed seven people for the job at issue here, four of whom were
from outside the Waste Division. The district court concluded that Slagell’s
preference did not amount to an official policy, and even if it did, Binning’s
extrapolation of discriminatory impact from the mere fact of four successive hires
from the Waste Division was insufficient to sustain a disparate impact claim.

                                  II. Discussion

       We begin with Gullett’s claim of disparate treatment. She proceeded under
the indirect burden-shifting approach of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and thus was required to show that she belongs to a protected
class, was qualified for the position, and was passed over in favor of a similarly
situated person outside the protected class. See Grayson v. City of Chicago,
317 F.3d 745, 748 (7th Cir. 2003); Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th
Cir. 2002). The Town conceded these prima facie elements, but argues that the
No. 04-2569                                                                    Page 4

undisputed evidence establishes that Perry was hired because of his superior
experience and that this nondiscriminatory reason shifted the burden back to
Gullett to introduce evidence of pretext. Millbrook, 280 F.3d at 1174. Gullett
cannot discharge this burden merely by showing herself qualified for the job;
pretext can be established only if the disparity between the plaintiff and the person
hired is so great that no reasonable person could disagree that the plaintiff was
better qualified. Cichon v. Exelon Generation Co., 401 F.3d 803, 813 (7th Cir.
2005); Millbrook, 280 F.3d at 1180. Employers are entitled to rely on subjective
criteria when deciding who is more qualified for a job, Cichon, 401 F.3d at 813;
Millbrook, 280 F.3d at 1176; here, Gullett’s evidence was not enough to show she
was unquestionably better qualified than Perry. Gullett offered nothing to counter
Slagell’s assertion that Perry had a superior working knowledge of certain
equipment and greater experience with some significant responsibilities of the
position. Gullett’s disparate treatment claim, therefore, depends on whether there
is evidence demonstrating that the decision-maker did not honestly believe Perry
was better qualified for the position. See Millbrook, 280 F.3d at 1178–82.

       Gullett concedes she has no evidence of dishonesty by anyone but Slagell, so
she argues that he effectively made himself the “sole” decision-maker by misleading
the other members of the hiring panel about her qualifications. A Title VII plaintiff
may show pretext with evidence that an employee harboring discriminatory animus
prompted a challenged employment action by providing the decision-maker with
false information. Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1015–16 (7th Cir.
2004); David v. Caterpillar, Inc., 324 F.3d 851, 861 (7th Cir. 2003); Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997). But here Gullett produced
no evidence to show that Slagell lied to the hiring panel.

       Gullett points primarily to one dubious piece of evidence: the “most
qualified” notation that appears on a page of Slagell’s interview notes. As we have
noted, however, Perry is the only applicant whose name appears on this page of
Slagell’s interview notes; we are at a loss to understand how Gullett reads into this
document a conclusion that Slagell believed that Gullett, not Perry, was “most
qualified” yet told the hiring panel otherwise. No reasonable trier of fact could
draw this conclusion.

       Gullett’s remaining evidence is even weaker and does nothing to undermine
the grant of summary judgment. Gullett maintains that Slagell’s deposition
testimony admitting that she was an “average” or “good” worker contradicts his
purported comments to the hiring panel about Gullett’s “poor work record.” But
there is no evidence that Slagell ever told the panel that Gullett had a poor work
record. Garibay’s notes indicate his conclusion that Gullett’s “WR [is] not very
good” for a “seasoned seasonal EE.” Although Garibay relied at least in part on
information from Slagell and Wey, Gullett offered no proof that Garibay’s
No. 04-2569                                                                    Page 5

conclusion was based on false information from Slagell. Gullett also contends that
Slagell’s past favoritism toward Waste Division employees establishes that he was
not being truthful about her qualifications. It is unclear how Slagell’s admitted
past preference for Waste Division employees is evidence that he misled the hiring
panel about Gullett’s qualifications. In any event, it is undisputed that the hiring
panel—which interviewed several people who never worked for the Waste
Division—disavowed any such preferential policy in the selection of Perry.

       Regardless, given that employers may use subjective hiring criteria,
Millbrook, 280 F.3d at 1176, Gullett has not explained what would be pretextual
about preferring individuals with prior experience in the Waste Division. See
Schaffner v. Glencoe Park Dist., 256 F.3d 616, 620–21 (7th Cir. 2001) (holding that
applicant whose bachelor’s degree was not in concentration required by employer
was unqualified for promotion to full-time job despite claim of equivalent work
experience); Guerrero v. Ashcroft, 253 F.3d 309, 313–15 (7th Cir. 2001) (holding
that FBI’s legitimately preferred agents with recent experience in drug
investigation and who possessed “‘street’ skills” instead of “administrative skills”
when deciding whom to promote to supervisory post); see also Gusewelle v. City of
Wood River, 374 F.3d 569 (7th Cir. 2004) (municipal residency requirement). In
making this argument, Gullett is essentially conflating her disparate treatment and
disparate impact claims. Had the Town premised its selection of Perry on a policy
of hiring full-time street workers only from the Waste Division, that policy would
have constituted a legitimate, nondiscriminatory reason unless Gullett could show
it was a pretext for discrimination. The fact that a policy or practice may have a
disparate impact on a protected class is irrelevant to a disparate treatment claim.
Raytheon Co. v. Hernandez, 540 U.S. 44 (2003).

        Finally, the evidence that Gullett’s coworker, Crow, overheard Slagell say
that he would “never hire” that “fucking bitch” is also insufficient to make Gullett’s
case. First, the statement was made some five months before the hiring decision in
question, and the circumstances surrounding it are somewhat ambiguous—Crow
only assumed that Slagell was referring to Gullett because she was the only woman
at the time working for the Streets Division. Regardless, a stray remark made
months ahead of a hiring decision does not constitute direct evidence of
discriminatory animus. Olson v. Northern FS, Inc., 387 F.3d 632, 635 (7th Cir.
2004); see also Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 444 (7th Cir.
1997) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J.,
concurring)). A single remark may constitute indirect evidence of pretext in some
cases, Olson, 387 F.3d at 635–36, but this one (assuming it was about Gullett)
appears to express strong personal dislike rather than sex-based animus, especially
considering that Gullett herself says that she and Slagell were once friends but had
a falling out sometime after 1996. Cf. Galloway v. Gen. Motors Servs. Parts
Operations, 78 F.3d 1164, 1168 (7th Cir. 1996) (explaining that “bitch” does not
No. 04-2569                                                                   Page 6

always trigger inference of sex discrimination). We agree with the district court
that Gullett has failed to come forward with sufficient evidence to survive summary
judgment on her disparate treatment claim.

       Gullett’s disparate impact claim fares no better. She argues that the Public
Works Department had a policy of hiring full-time Street Maintenance Specialists
only from the Waste Division, and that since there were no women in the Waste
Division, the policy effectively excluded all women from consideration. Disparate
impact claims arise where employers adopt facially neutral policies or practices that
disproportionally affect the members of a protected class. 42 U.S.C. § 2000e-2(k);
Cerutti v. BASF Corp., 349 F.3d 1055, 1067 (7th Cir. 2003); Bennett v. Roberts,
295 F.3d 687, 698 (7th Cir. 2002); Vitug v. Multistate Tax Comm’n, 88 F.3d 506,
513 (7th Cir. 1996). Here, as we have noted, there was no evidence that the Town
had a policy of hiring full-time street workers only from the Waste Division.
According to Gullett’s own evidence, the “policy” was really only Slagell’s
preference. Summary judgment on Gullett’s disparate impact claim was also
appropriate.

                                                                        AFFIRMED.
