In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3613

Nikolas Malacara,

Plaintiff-Appellant,

v.

City of Madison, City of Madison Water Utility
Division, Chuck Englehart, Gail Glasser
and George Holden,

Defendants-Appellees.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98-C-854-C--Barbara B. Crabb, Judge.


Argued April 3, 2000--Decided August 18, 2000



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

  Bauer, Circuit Judge. Nikolas Malacara, a
Hispanic male, began working for the City of
Madison in 1987 as a seasonal maintenance
employee in the City’s Parks Division. In 1989,
he was given a permanent position as a
Maintenance Worker I in the Water Utility Supply
Section where he remains today. During this time,
Malacara requested cross training in other jobs
within the Water Utility. All cross-training
requests are handled by the employees supervisor,
in this case Earl Cheek. Malacara claims that all
his requests were denied. Then in 1995, he
applied, but was not hired, for a Maintenance
Mechanic I position.

  Malacara filed suit claiming that he was
racially discriminated against by not being
allowed to cross-train and by not being hired for
the Maintenance Mechanic I position, in violation
of 42 U.S.C. sec.sec. 1981 and 1983 and Title
VII. The district court granted a motion for
summary judgment finding that no reasonable jury
could conclude by a preponderance of the evidence
that the defendants discriminated against
Malacara on the basis of race. Malacara appeals
that decision.
  We review de novo the district court’s granting
of summary judgment. Miranda v. Wisconsin Power
& Light Company, 91 F.3d 1011, 1014 (7th Cir.
1996). Summary judgment is proper "if the
pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is
no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d
265 (1986). We must view the evidence in favor of
the nonmoving party. Miranda, at 1014.

  Because Malacara did not present direct evidence
that he was discriminated against by defendants’
failure to promote him or provide him training in
maintenance, the district court used the burden
shifting formula established by McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-805 (1973), to
determine whether discrimination occurred. In a
failure to train claim the plaintiff must
demonstrate: (1) that he is a member of a
protected group; (2) that the City of Madison
Water Utility Division provided training to its
employees; (3) that he was eligible for training;
and (4) that he was not provided training under
circumstances giving rise to an inference of
discrimination, i.e., that he was denied training
given to other similarly situated employees who
were not members of the protected group. Pafford
v. Herman, 148 F.3d 658, 667 (7th Cir. 1998). In
order to establish a prima facie case of race
discrimination Malacara must show: (1) that he
belongs to a racial minority; (2) that he applied
and was qualified for a job for which the
employer was seeking applicants; (3) that,
despite his qualifications, he was rejected; and
(4) the position was given to someone of a
different race who had similar or lesser
qualifications. Perdomo v. Browner, 67 F.3d 140,
144 (7th Cir. 1995).

  Once the prima facie case is established, the
burden of production shifts to the defendant to
articulate a legitimate, nondiscriminatory reason
for its actions. Miranda, at 1015. The burden of
persuasion remains with the plaintiff at all
times. St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If
the defendant articulates a nondiscriminatory
reason, it has satisfied its burden and the
plaintiff must then establish that defendant’s
reasons were pretextual. Id.; Perdomo, at 144.
Applying this formula, the district court
determined that no reasonable jury could find
that race played a role in the defendant’s
failure to train claim or the decision not to
hire Malacara for the Maintenance Mechanic I
position.
  The district court determined that the
defendants met their burden of production and did
not address whether Malacara established a prima
facie case. Where the defendant has met its
burden, it is irrelevant whether a prima facie
case has been made. Sample v. Aldi, 61 F.3d 544
(7th Cir. 1995). Because we agree with the
district court’s determination that the
defendants met their burden of production under
McDonnell Douglas, we will not address whether a
prima facie case was in fact established.
Defendants established several legitimate,
nondiscriminatory reasons for not cross-training
or hiring Malacara.

  Malacara argues that Tim Sullivan received
opportunities to cross-train that he did not.
Sullivan, a white male, was hired in 1994 as an
hourly employee in the Supply Section.
Specifically, Malacara asked for cross-training
in the Maintenance Section. In 1994, Cheek lent
Sullivan to the Maintenance department instead of
Malacara, citing staffing shortages and his
preference to move hourly employees.

  Cheek considered Sullivan’s transfer as a
temporary employee loan, not a training transfer.
He testified that it was his general practice to
transfer hourly employees rather than permanent
employees. Cheek loaned Sullivan, an hourly
employee, rather than Malacara because he had
less regularized duties. Malacara, a permanent
employee, had set job responsibilities which were
harder to replace. Sullivan was lent to alleviate
a staff shortage, not for the purposes of
training. Malacara was told he could not be
spared. This was not an uncommon reason to deny
employees requests. He contends that the shortage
was in Sullivan’s position and not in his. The
fact remains however that the decision was within
Cheek’s discretion of who to loan to the
Maintenance Section.

  Other employees were denied cross-training as
well. Theresa Peters verbally requested cross-
training and was told that "it was not a good
time to do cross-training." Frank Rane and Jack
Henderson, both white employees, were denied
their requests in writing. Further, defendants
established that Malacara did in fact receive
cross-training on at least two occasions,
including meter-reading in the Supply Section and
training in the Distribution Section. There is no
evidence that the plaintiff was treated
differently than similarly situated employees in
his request for cross-training nor is there any
evidence that race was a factor in those
decisions. The district court properly dismissed
Malacara’s cross-training claims.
  Malacara next argues that defendants failed to
promote him to the position of Maintenance
Mechanic I because of race. Chuck Englehart and
Gail Glasser conducted the interviews of the
certified candidates. They used the same
questions and topic material for each candidate.
Each interview began with a description of the
duties of the position. Again, we will only
discuss whether the defendants established
legitimate, nondiscriminatory reasons for not
promoting Malacara.

  First, the defendants’ decision was based on
which candidate they believed to have the most
relevant experience for the duties of Maintenance
Mechanic I position, not on race. The Maintenance
Mechanic I position required more advanced skills
than Malacara possessed. Malacara’s experience
involved janitorial and lawn care work. Much of
the experience Malacara indicated on his
application included informal jobs for his family
or friends and described them as being
"sporadic." He failed to provide in his
application the information necessary for the
defendants to verify these experiences. The
defendants determined that while he had some
related experience, he lacked the direct
experience that Sullivan possessed.

  Sullivan provided the information necessary to
verify his work history. He had held numerous
positions relating to maintenance. He worked in
the service and parts departments for several
golf cart manufacturers with duties which
included tune-ups and major overhauls of golf
carts and utility vehicles. While working for the
Water Utility, Sullivan maintained fans and
pumps, heating and ventilating equipment,
repaired chlorinators and fluoridators, valves
and other equipment in the pump houses, and
removed, installed, and repaired well pumps and
booster pumps. These are all tasks that were part
of the primary duties listed for a Maintenance
Mechanic I and which could be verified.

  Englehart and Glasser found that Sullivan
provided a more accurate, complete understanding
of the responsibilities and expectations of a
Maintenance Mechanic I than Malacara did during
his interview. Sullivan exhibited a better
understanding that the responsibilities included
repair and maintenance of in-unit wells and
buildings. Without personal knowledge of
Sullivan’s responses, Malacara can not dispute
the defendants’ opinion that Sullivan had a more
accurate understanding than him.

  Finally, defendants argue that their prior
experience with each of the candidates and the
work histories within the Water Utility played an
important role in their decision. Malacara had
several instances of unsafe conduct that violated
the Water Utility Safety policies. Malacara had
been seen by Cheek riding on top of a lawn
tractor’s backrest. He was told to sit down and
that it was unsafe. Glasser and Englehart
witnessed Malacara make a right hand turn
directly in front of a Madison Metro bus in a
Water Utility vehicle. Englehart also witnessed
him recklessly back into a well unit door with a
Water Utility vehicle. Englehart further believed
him to be sloppy from his observations when they
were co-workers. These instances reflected poorly
on Malacara’s application for the Maintenance
Mechanic I position. The other candidates,
Sullivan, Peters and Henderson, had good work
histories.

  The defendants determined that Sullivan was the
more qualified candidate for the position and
went on to say that had Sullivan not taken the
job, the position would have been offered to
Peters and then Henderson, and if they had
declined, they would have interviewed a new pool
of applicants.

  Defendants established legitimate, non-
discriminatory reasons for not hiring Malacara.
An employer may hire or refuse to hire an
employee "for a good reason, a bad reason, a
reason based on erroneous facts, or for no reason
at all, as long as its action is not for
discriminatory reason." Bruno v. City of Crown
Point, Ind., 950 F.2d 355, 364 (7th Cir. 1991)
(quoting Nix v. WLCY Radio/Rahall Communications,
738 F.2d 1181, 1187 (11th Cir. 1984)). There is
no evidence that a reasonable jury could find
that the defendants failed to hire Malacara based
on race.

  The district court correctly found that Malacara
failed to satisfy his burden on summary judgment
and properly granted judgment for the defendant
on both his failure to cross-train and failure to
hire claims. Affirmed.




  Williams, Circuit Judge, dissenting in part.
Although I agree with my colleagues’ assessment
of Malacara’s failure to train claim, I must
disagree with their conclusion that no reasonable
juror could find that defendants failed to
promote Malacara on the basis of race. In
reviewing Malacara’s claims, the majority focuses
solely on the issue of whether defendants
established a "legitimate, nondiscriminatory
reason for not promoting Malacara." Since both
parties already agree that defendants met their
burden, which is merely one of production, the
proper focus should be on whether or not Malacara
has presented sufficient evidence to create a
genuine issue as to whether or not the proffered
reason is pretextual. Instead of doing this,
however, my colleagues rely solely on defendants’
version of the evidence and give little or no
credence to Malacara’s version.

  The line which purports to distinguish the
questions that are to be examined by a trier of
fact from those that are to be decided by a judge
can at times be difficult to discern. Walking
this line becomes particularly problematic for
the judge contemplating a motion for summary
judgment involving claims of discrimination in
the workplace, as is the case here. Taking note
of this difficulty, the Supreme Court has
recently offered guidance in the form of Reeves
v. Sanderson Plumbing Prods., Inc., ___ U.S. ___,
129 S.Ct. 2097, 2110 (2000). In Reeves, the Court
reviewed a plaintiff’s ADA claim on a motion for
judgment as a matter of law under Federal Rule of
Civil Procedure 50. The case nonetheless offers
important guidance, since the method of proof in
ADA and Title VII cases is similar and the
standard for Rule 50 motions mirror the standard
used in Rule 56 summary judgment motions.

  The Reeves Court focuses on the plaintiff’s
burden to create a genuine issue as to pretext.
The Court’s decision reinforces the notion that
when considering whether sufficient evidence
exists to submit a question to the jury, a court
need look only to the evidence and reasonable
inferences that tend to support the case of the
non-moving party. "That is, 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 the evidence comes from
disinterested witnesses’" Id. at 2110 (citing 9A
C. Wright & A. Miller, Federal Practice and
Procedure sec.2529, 300 (2d ed. 1995)). With the
decision in this case, the majority does exactly
what the Supreme Court in Reeves expressly
proscribes. They have "disregarded critical
evidence favorable to petitioner--namely, the
evidence supporting petitioner’s prima facie case
and undermining respondent’s nondiscriminatory
explanation." Id. at 2111. A review of the facts
that are absent from the majority opinion, but
found in the record, is instructive and is
necessary for analysis of the pretext issue.

  In his position as Maintenance Worker I,
Malacara worked under the direct supervision of
Earl Cheek ("Cheek") and was responsible for
basic maintenance as well as maintenance and
repair of grounds-keeping equipment. Malacara has
experience in maintenance and repair and hoped to
one day obtain a position as a Maintenance
Mechanic I with the City. Malacara informed Cheek
that he would like to obtain job assignments and
training in the Maintenance Section, so that he
could gain the experience needed to qualify for
a permanent job as a Maintenance Mechanic.
Malacara also made his desire to work as a
Maintenance Mechanic known to the Division
Operations Manager, George Holden ("Holden").
Holden discouraged Malacara and told him that the
move he was hoping to make was a very big one and
that "that just wasn’t done." The union steward,
Alice Grob ("Grob"), testified that minorities at
the Water Utility Division are given more
discipline and fewer opportunities for
advancement, while less qualified, white
employees are provided ample training
opportunities and career guidance.

  In April 1994, the City hired Tom Sullivan
("Sullivan"), a white male. Initially, Sullivan
was assigned to grounds-keeping and worked with
Malacara. In mid-1994, Sullivan was given a work
assignment in the Maintenance Section. In mid-
1995, Sullivan was given a permanent position as
a Maintenance Worker I in the Water Utility
Division, Distribution Section, but was loaned
back to the Maintenance Section where there was
a staff shortage. The union contract prohibited
the City from hiring hourly employees to fill in
permanent positions. Since Sullivan had been an
hourly employee, Malacara voiced his objection to
Sullivan’s hiring.

  In the spring of 1995, the permanent position
for Maintenance Mechanic I opened and both
Malacara and Sullivan applied. The minimum
qualifications for the position included: (1)
three years experience in skilled building and
mechanical repair work and (2) knowledge of and
ability to perform skilled building and
maintenance repair tasks. The parties dispute the
level of experience each applicant had. Malacara
had more formal education in electronics, home
and auto repair, plumbing and welding than
Sullivan. However, in the Water Utility Division,
he spent most of his time on the lawn crew, from
1989 to the time he filed suit. Malacara says he
performed some maintenance, and appellees admit
that he received some training in meter reading.
Appellees discount Malacara’s experiences before
joining the City as work for family and friends
and sporadic home and auto repair. Sullivan had
prior experience working on golf-carts and
experience with the Water Utility Division in the
Maintenance Section. During his time with the
City, he performed some grounds-keeping tasks and
did some work at Water Utility buildings.

  Judy Hughes ("Hughes") of the City’s Human
Resource’s department screened all applications
for basic minimum qualifications, and then
conducted a series of tests and compiled a list
ranking all remaining applicants for the
Maintenance Mechanic I position ("certification
process"). This process was done whenever a new
position became available. Under the City’s
hiring policy, candidates were informed that
their ranking on the eligibility list does not
necessarily translate into departmental
preference for the hiring decision. Malacara
scored well on the tests and the experience
ranking. He got the highest score on the test and
when his work history was evaluated, he received
40 points. Sullivan received less than 17 points
and had the second lowest work history rating.
Overall, Malacara tied for second in the final
ranking. Sullivan was ranked second to last. When
Glasser and Englehart later reviewed the same
information about Malacara’s work history, they
concluded that Malacara did not meet minimum
qualifications.

  As for Malacara’s performance record on the
job, he was never formally disciplined for any of
the three separate incidents Glasser and
Englehart say colored Malacara’s record. He was
never told his work was deficient or that he had
committed a safety violation. Malacara explains
that he sat on the top of the backseat of the
tractor because the grass he was cutting would
get in his eyes, but after he received safety
goggles, he discontinued the practice. Further,
Malacara claims that Glasser laughed about his
incident with the bus and that Englehart left the
well unit door open that he hit with the City
truck. Additionally, while Englehart had formed
the impression that Malacara did sloppy work when
they were co-workers, Cheek, Malacara’s immediate
supervisor, reported favorably on Malacara when
asked for an evaluation of his work. Glasser
contends that Cheek told her otherwise.

  In addition, Malacara reported to the City’s
affirmative action office that he had been
discriminated against. Grob testified that a
worker in that office, Nancy Curtis ("Curtis"),
wondered why Malacara was not hired even though
Curtis told Malacara he had not suffered from
discrimination. However, Curtis informed Grob
that the real reason Malacara was not hired was
because Glasser believed Malacara was the kind of
Hispanic other Hispanics did not want in their
community. When Malacara confronted Glasser about
the hiring decision, she responded that the best
candidate had been hired. She did not inform
Malacara that he was not qualified or that he had
committed safety violations. Malacara later
received a memo from Glasser detailing his
perceived deficiencies.

  While these facts do not all necessarily work
in Malacara’s favor, they certainly offer a
different picture of the case than that presented
in the majority opinion. The real issue in this
case is whether defendant’s proffered explanation
for not promoting Malacara is pretextual. When
examining this issue with Malacara’s facts and
only defendants’ uncontradicted evidence in mind,
as Reeves says we must, it becomes clear that a
genuine issue does exist.

  Pretext can be established "by proving one of
the following: ’(1) [d]efendant’s explanation had
no basis in fact, or (2) the explanation was not
the real reason, or (3) at least, the reason
stated was insufficient to warrant’" the adverse
job action. Hughes, 20 F.3d 745, 747 (7th Cir.
1994), (quoting Lenoir v. Roll Coater, Inc., 13
F.3d 1130, 1133 (7th Cir. 1994)). The question in
cases turning on pretext is "whether [plaintiff]
has created a genuine issue concerning the
sincerity of the proffered reasons" given for the
adverse employment action. Sarsha v. Sears,
Roebuck & Co., 3 F.3d 1035, 1039 (7th Cir. 1993).


  In my view, the facts surrounding this issue
present a text-book example of an issue that
should proceed to trial--it is classic "he said,
she said." This time, however, defendants are the
ones with the self-serving affidavits and the
plaintiff has the objective evidence. Appellees
argue that Malacara’s reliance upon the objective
evaluation measures, which rank Malacara higher
than Sullivan, is misplaced. Yet, the test scores
and eligibility list rankings, while not binding
on Glasser and Englehart when they made their
decision, are certainly probative here.
Regardless of whether Glasser and Englehart were
bound by the rankings and test scores, these
measures suggest Malacara was more qualified than
Sullivan. While appellees present evidence that
Malacara was not qualified, in the form of
affidavits and deposition testimony from Glasser
and Englehart, Malacara presents evidence, in the
form of a high test score, a high relevant
experience ranking, and positive evaluations of
his work by his immediate supervisor, that he
was.

  Furthermore, appellees maintain that Sullivan
worked eighteen months in the Maintenance
Division getting "on-the-job" experience.
However, there is testimony that Sullivan was
just a helper and was not really working as a
maintenance mechanic. This calls into question
whether the eighteen month stint on loan to the
Maintenance section was as valuable, for
Sullivan, as appellees claim. Of course, Malacara
maintains that this experience is exactly what he
had requested on several occasions and had been
denied the opportunity to get that experience.
Moreover, he actually did obtain some experience
performing tasks similar to those required by a
Maintenance Mechanic I employee. Appellees state
that Malacara obtained "extensive cross-training
in the Distribution section" and while there,
"received training as an Operator I driving dump
trucks as well as lead replacement experience,
and experience repairing mains, repairing and
replacing hydrants, and installing valves and
services." Appellees Br. at 34. This contradicts
their claim that "[p]rior to applying for the
Maintenance Mechanic I position, all of
Plaintiff’s work for the City of Madison and in
the Water Utility involved janitorial and lawn
care work." Appellees Br. at 46.

  In addition, a close look at all of the
evidence raises several questions as to the
veracity of appellees’ proffered reasons for not
promoting Malacara. This court has held that
plaintiffs may establish pretext by "simply
attack[ing] the credibility of the employer’s
proffered reason for termination." McCoy v. WGN
Continental Broadcasting Co., 957 F.2d 368, 372
(7th Cir. 1992). In defense of their actions,
appellees contend that they failed to promote
Malacara because he was, in fact, not qualified
for the Maintenance Mechanic I position, that his
application was inadequate, his interview
unsatisfactory and his work record tainted by
reports of sloppiness and unsafe behavior. A
number of inconsistent facts belie this
contention.

  First, Glasser claims Malacara did not provide
reference numbers for his prior employers or
sufficient descriptions of his past work
experience and that this prevented her from
verifying the true extent of his qualifications.
At the same time, Malacara presented evidence
that she took notes saying his references were
"OK." According to Malacara, Glasser also
reported that she did not need his references
because she would check with his supervisor at
the City. This is conflicting testimony that
calls into question the veracity of Glasser’s
explanation.

  Second, the interview ratings calculated by
Glasser and Englehart were more subjective
measures, albeit important and legitimate ones,
than those obtained in the certification process.
In contrast, the more objective evidence, test
scores and work history scores suggest that
Malacara was at least one of the most qualified
candidates and certainly more qualified than
Sullivan. Glasser and Englehart reviewed the
exact same work experience information as Hughes
did, yet they came to a completely different
conclusion. The conflicting valuations of
Malacara’s work experience present an important
question of fact and raise questions about
Glasser and Englehart’s subjective determination.


  Third, there is nothing in the record, besides
Englehart and Glasser’s self-serving testimony,
to suggest that Malacara had performed his job
unsatisfactorily or even sloppily, as appellees
indicate. Malacara’s direct supervisor, Cheek, is
reported to have given Malacara a favorable
evaluation. However, Glasser says Cheek gave a
less than positive appraisal of Malacara’s work.
This, of course, is another fact question.
Furthermore, while appellees point to three
separate incidents to establish Malacara’s
sloppiness and disregard for safety and as the
major reason he was not promoted, Malacara’s
official performance record is clean. He was
never formally (or informally) disciplined.

  Malacara’s pre-interview test scores, his work
history rankings, his performance record,
Sullivan’s arguably lesser qualifications,
Cheek’s positive appraisal of Malacara’s work,
the contradicted reports of Malacara’s alleged
sloppy work and contradictory statements
regarding the type of experience Malacara
received at the City call into question the
veracity of appellees’ proffered reason for not
promoting Malacara. "[I]f a plaintiff convinces
the trier of fact that it is more likely than not
that the employer did not act for its proffered
reasons, the employer’s decision remains
unexplained and the inferences from the evidence
produced by the plaintiff may be sufficient to
prove the ultimate fact of discriminatory
intent." McCoy, 957 F.2d at 372.

  Rarely have I seen a set of facts so clearly
pointing to the need for resolution before a
trier of fact. The court will not render summary
judgment if "a reasonable jury could return a
verdict for the nonmoving party." Sullivan v.
Cox, 78 F.3d 322, 325 (7th Cir. 1996) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). This summary judgment standard is to
be applied rigorously where intent and
credibility are central issues. Wohl v. Spectra
Manufacturing, 94 F.3d 353, 354 (7th Cir. 1996).
Appellees’ intentions and credibility are the
crux of the case here. Malacara presents ample
evidence to call into question the intentions and
credibility of both Glasser and Englehart and to
suggest that the reasons offered to support the
decision to promote Sullivan were a pretext for
discrimination. If Malacara presented sufficient
evidence that appellees proffered reasons were
"unworthy of credence" then he has shown pretext.
See Johnson v. University of Wisconsin-Milwaukee,
783 F.2d 59, 63 (7th Cir. 1986). At the very
least, there was enough evidence here to send the
case to a jury so that a trier of fact could
decide the issue. Accordingly, I respectfully
dissent.
