192 F.3d 1087 (7th Cir. 1999), 98-3157, Ghosh v. Indiana Dept. of Envtl. Mngt.

Docket Nº:98-3157
Citation:192 F.3d 1087
Case Date:October 04, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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192 F.3d 1087 (7th Cir. 1999)

SUBHEN GHOSH, Plaintiff-Appellant,



No. 98-3157

United States Court of Appeals, Seventh Circuit

October 4, 1999

Argued April 1, 1999

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP97-194 C B/S--Sarah Evans Barker, Chief Judge.

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[Copyrighted Material Omitted]

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Before HARLINGTON WOOD, JR., RIPPLE, and KANNE, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

Plaintiff- appellant Subhen Ghosh, a United States citizen who is a native of India, filed suit against his employer, the Indiana Department of Environmental Management ("IDEM"), claiming that he was denied promotions because of his national origin and in retaliation for filing a charge with the United States Equal Employment Opportunity Commission ("EEOC"). Ghosh's complaint also included a wage discrimination claim based on allegations that IDEM did not give him equal pay for performing work equal to that of a Caucasian employee. The district

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court granted summary judgment to IDEM. Ghosh appeals.


Subhen Ghosh holds a bachelor of science as well as a masters degree in engineering. Ghosh has completed post-masters studies in engineering and graduate studies in business administration. In addition to his formal course work, Ghosh has attended various continuing education courses in engineering and environmental management and has taught college courses in engineering, petroleum, and technology. Ghosh has been employed as an IDEM engineer continuously since 1985. In 1985, he was hired by IDEM as an Environmental Engineer III in the Office of Water Management. From 1985 until May 1997, Ghosh unsuccessfully applied for numerous promotions within IDEM. In May 1997, Ghosh was promoted to Environmental Engineer II in the Office of Water Management, Compliance Branch, Inspections Section. From the time he was promoted from Engineer III to Engineer II until March 16, 1998, Ghosh continued to apply for additional promotions within IDEM without success.

On May 30, 1996, Ghosh filed charges with the EEOC alleging that IDEM discriminated against him because of his national origin by failing to promote him and to give him equal pay for equal work. After receiving his Right to Sue letter, Ghosh filed this discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e, et seq., which makes it unlawful for an employer to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race, color, religion, sex, or national origin. 42 U.S.C. sec. 2000e-2(a)(1). On August 1, 1997, Ghosh filed a second charge with the EEOC alleging that IDEM retaliated against him for filing the first charge with the EEOC. After receiving his Right to Sue letter on this second charge, Ghosh filed an amended complaint which included allegations of retaliation. On January 21, 1998, IDEM moved for summary judgment. On July 28, 1998, the district court granted summary judgment in favor of IDEM on all of Ghosh's claims. Ghosh filed this timely appeal.


We review the district court's grant of summary judgment de novo. Wilson v. Chrysler, 172 F.3d 500, 503 (7th Cir. 1999). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In our analysis, we must view the facts in the light most favorable to Ghosh, the non-moving party. Wilson, 172 F.3d at 503. While the district court's grant of summary judgment addresses twenty-eight incidents of alleged discrimination, on appeal Ghosh challenges the district court's rulings with respect to only three of the incidents. Specifically, Ghosh contends that the district court erred in granting summary judgment on the claims arising out of his October 1996 application for an Environmental Engineer I position in the Solid Waste Technical Compliance Section and his March 1997 applications for a Senior Environmental Manager I position in the Office of Water Management, Compliance Branch and for a Senior Environmental Supervisor III position in the Office of Water Management, Drinking Water Branch. Ghosh also challenges the district court's ruling on his wage discrimination claim.

Ghosh is proceeding under the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Under the McDonnell Douglas approach, a plaintiff may prove his case using "indirect" evidence. Brill v. Lante Corp., 119 F.3d 1266, 1270 (7th Cir. 1997). The first step of the McDonnell Douglas method requires a plaintiff to make a prima facie showing of discrimination. In

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order to make a prima facie showing of discrimination in a failure to promote case, the plaintiff must demonstrate that (1) he was a member of a protected group; (2) he applied for and was qualified for the position sought; (3) he was rejected for the position; and (4) those who were promoted had similar or lesser qualifications for the job. Id. (citing Sample v. Aldi Inc., 61 F.3d 544, 548 (7th Cir. 1995)). If the plaintiff succeeds in establishing a prima facie case of discrimination, the burden then shifts to the defendant, who must explain why it failed to promote the plaintiff. If the defendant provides reasons that are nondiscriminatory on their face, the burden returns to the plaintiff who then must demonstrate that defendant's proffered reasons are pretextual. Id. Pretext is established if the plaintiff can show that the defendant's proffered reasons are either lies or completely lacking in factual basis. Mills v. Health Care Serv. Corp., 171 F.3d 450, 458 (7th Cir. 1999). To avoid summary judgment, a plaintiff must produce evidence from which a rational trier of fact could infer that the defendant lied about its proffered reasons for failing to promote him or that the reasons had no basis in fact. Id.

A. Environmental Engineer I, Solid Waste Technical Compliance Section

In October 1996, Ghosh applied for an Environmental Engineer I position in the Solid Waste Technical Compliance Section. The recommended skills for the position included a knowledge of the following areas: federal and state law and regulations; environmental health, geotechnical and earth sciences; soil and synthetic liner construction and installation; and construction, operation, and maintenance of solid waste processing and disposal facilities. The position also required the ability to collect and analyze data, prepare reports and technical documents, and review projects and situations. Ghosh was not interviewed for the opening, and IDEM selected Tom Daugherty, a Caucasian, to fill the position.

Even assuming Ghosh is able to make a prima facie showing of discrimination with respect to this application, his claim nevertheless fails because there is no evidence that IDEM's proffered reasons for failing to interview him for the position were pretextual. See Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) ("When the defendant has proffered an explanation for termination that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext."). IDEM's motion for summary judgment included as an exhibit a form listing the applicants, including Ghosh, who were not selected for an interview following an initial evaluation of the submitted resumes together with an explanation of why each applicant was not offered an interview. The form notes that Ghosh was not offered an interview because he lacked soil synthetic liner knowledge, had inadequate writing skills, did not submit a state application as requested, and did not score within 20%...

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