Mason v. Continental Illinois Nat. Bank

Decision Date01 April 1983
Docket NumberNo. 81-2893,81-2893
Citation704 F.2d 361
Parties31 Fair Empl.Prac.Cas. 629, 31 Empl. Prac. Dec. P 33,500 Frieda MASON, Plaintiff-Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK and Ronald Friedman, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Gregory A. Stayart, Chicago, Ill., for plaintiff-appellant.

James W. Gladden, Jr., Mayer, Brown & Platt, Chicago, Ill., for defendants-appellees.

Before BAUER, CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

Frieda Mason, a black employee of the Continental Illinois National Bank in Chicago, brought this suit under the Civil Rights Act of 1866, as amended, 42 U.S.C. Sec. 1981, against the bank and one of its supervisory employees, complaining that she had been denied promotion because of her race. The district court granted summary judgment in favor of the defendants, and she appeals.

In August 1980, a position as transmission supervisor on the day shift of the communications section of the bank's international services division--a salary grade 9 position--opened up, and Miss Mason, a work coordinator in the section's night shift, applied for it. At about this time she received her annual employee fitness rating, in which she was found by her supervisor to be above average, though not outstanding, and in terms of potential for future development "moderate," defined to mean that "the employee has the ability to advance one salary grade within the next 12 months." The report commented, "With further development for Management interface, Frieda could certainly advance one salary grade in the next 12 months." Mason's supervisor explained that "Management interface" meant communicating with superiors and that defendant Friedman, who was a couple of supervisory levels above Mason, did not like the way she came to him directly with personnel matters rather than going through channels.

Mason's name was forwarded to Dennis Parenti, the supervisor of the communications section, along with the name of another candidate, a white woman. Parenti discussed the names with Friedman, the assistant manager of the international services division, and with Edward Lehmann, the manager of the division. Lehmann stated in his deposition: "I indicated to him [Parenti] that we should try to determine whether or not there might be any other candidates within [the international services division], and also with discussing that with Ron [Friedman] to determine whether there had been any candidates that we might know of that might be appropriate candidates that we might want to consider for this position."

Coincidentally, within a few days of Lehmann's discussion with Parenti an employee in the international services division who had just resigned (effective July 31)--Maryann Yarmolchuk--called Parenti to say she regretted her decision to leave and wanted to come back. Miss Yarmolchuk had been a special investigator for the division, salary grade 8, assigned to handle claims against customers who had underpaid for the bank's services. Her most recent employee rating, in March 1980, had rated her outstanding--a grade above Mason--but like Mason capable of advancing just one salary grade in the next 12 months. And Yarmolchuk's termination notice, issued in July, not only had described her performance as "exemplary in every regard" but had upgraded her potential for future development from "moderate" to "substantial," which means the employee can advance two or more salary grades within the next 24 months. When Parenti learned that Yarmolchuk wanted to come back to the bank he called Friedman, who called Lehmann, and she was appointed to fill the position for which Mason had applied.

Nothing in the facts recited so far suggests that racial animus played any role in the bank's decision to appoint Yarmolchuk rather than Mason to the open position on the day shift. True, Mason's work as a work coordinator on the night shift in the communications section was more like that of a transmission supervisor on the day shift than Yarmolchuk's work as an investigator was, but offsetting this was the fact that before the position on the day shift opened up Yarmolchuk had received two evaluations superior to Mason's. The reference to Mason's problem of "Management interface," in a rating issued the same month the position opened up, implied that she was not thought ready--even by a sympathetic supervisor (also black) who provided deposition evidence for her in this case--for immediate promotion. Yarmolchuk's rating of "moderate" potential had been issued four months earlier and had been upgraded to "substantial" just before the position opened up, suggesting she was riper for promotion than Mason.

Mason contends, however, that the following circumstances created a genuine issue of material fact regarding the bank's true motive for not appointing her, and thus made summary judgment improper:

1. In August she had been given new duties as work coordinator on the night shift, but her position was not upgraded to a grade 9.

2. The bank refused to explain to her in writing why she did not get the appointment as transmission supervisor on the day shift.

3. Friedman told her that Yarmolchuk had been appointed not because she was better qualified but because Mason "lacked communication skills"--an obvious falsehood, according to Mason's brief.

4. Yarmolchuk was not selected for the position until Lehmann, the manager of the international services division, was away on a business trip.

5. Under the bank's rules, existing employees are entitled to a preference when it comes to filling an open position, and Mason was an existing employee, whereas Yarmolchuk, having left the bank, was a new employee.

6. The opening was not posted.

7. Mason's supervisor was not consulted in the appointment.

8. Although under the bank's rules promotion is permissible as soon as an employee is minimally qualified, Mason was denied a promotion because she was not the best qualified candidate.

Neither singly nor in combination do these allegations raise an inference of racial discrimination.

1. There were two transmission supervisors on the day shift but only one on the night shift--Mason's immediate superior. This is because the day shift has more work; there is no incoming, only outgoing, cable traffic on the night shift. If Mason had been upgraded to a transmission supervisor on the night shift, the night shift would have had the same number of transmission supervisors as the day shift, and it did not need so many.

2. The bank's consistent policy is not to give employees written explanations for decisions not to promote. There is no indication of any racial animus behind this policy.

3. Mason's employee evaluation stated that she "had sought help to enhance her writing capabilities," and it is possible that this is what Friedman was referring to in commenting on her lack of communication skills; alternatively, he may have been alluding to her need for "further development for Management interface." In either case Friedman was simply noting acknowledged areas of weakness that would have entered into any comparison of Mason and Yarmolchuk.

4. Friedman phoned Lehmann for approval to appoint Yarmolchuk because Lehmann was traveling on business. There is no indication that this is an abnormal method of making personnel decisions at the Continental Bank.

5. The uncontested deposition evidence is that Yarmolchuk was considered an existing employee, within the spirit if not the letter of the bank's rules, rather than a new employee, because she had left the bank only weeks before and had promptly regretted her decision to leave. There is no suggestion that she was treated differently from the way any other employee, black or white, who had left so recently would have been treated.

6. Openings are not posted when they are filled from within the division; Yarmolchuk was, as we have said, regarded as still being an employee in the division.

7. Mason's supervisor was consulted about the vacancy on the day shift--her deposition states this clearly.

8. There is substantial doubt that Mason was qualified for the position she sought, in view of the reservations in her employee fitness rating report made immediately prior to her application. But if she was qualified, still nothing in the bank's rules requires it to promote a minimally qualified employee rather than the most qualified one when a position opens up. No rational enterprise that has several qualified candidates for a position selects among them by lot; it picks the best qualified. Cf. Holder v. Old Ben Coal Co., 618 F.2d 1198, 1202 (7th Cir.1980).

Thus far we have analyzed the case as if there were no special rules for the proof of an employment discrimination case--as if the question in this case, as in any other case where summary judgment is granted, were simply whether there was a genuine issue of material fact. Our reason for proceeding thus is that although the format that the Supreme Court laid down in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for proving racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964 also has been held applicable to cases brought under 42 U.S.C. Sec. 1981, see Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1281 n. 3 (7th Cir.1977), as this case was, there is some question whether the format is appropriate, under either statute, in a case involving appointment or promotion to a position for which there are several candidates.

McDonnell Douglas allows a disappointed applicant for employment to establish a prima facie case of unlawful discrimination by proving that he was qualified but was rejected and that "the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802, 93 S.Ct. at 1824. But in McDonnell Douglas the...

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