Mary M. Tai v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, United States Department of…

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 21, 2009
Decided May 5, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2538
MARY M. TAI,
Plaintiff‐Appellant,
v.
ERIC K. SHINSEKI, Secretary of
Veterans Affairs, United States
Department of Veterans Affairs,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:05‐cv‐07071
Wayne R. Andersen,
Judge.
O R D E R
Mary Tai, a longtime employee of the Department of Veterans Affairs, brought suit under
Title VII after she unsuccessfully applied for three open positions within the Department
between late 2004 and early 2005. Tai had settled a charge of discrimination against the
Department in 2000, and she argued that the Department retaliated against her for that earlier
charge by rejecting her for the three open positions. Because she filed her retaliation charge
regarding the first position before the Department filled the second and third positions, Tai
argued that her rejection for those latter two positions involved retaliation for her more recently
filed retaliation charge as well. (Tai also alleged age and race discrimination but abandoned
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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those allegations in the district court.) The district court granted summary judgment in favor
of the Secretary, and we affirm.
BACKGROUND
Tai has worked at the VA Hospital in Hines, Illinois since 1985. She is currently a program
analyst in the Office of Information. Her retaliation claim centers on three separate instances
in which she applied for an open position and the Department chose a different applicant.
When a position opens at a VA facility, the position’s selecting official convenes a panel to
review the applicants. The selecting official for the first two positions that Tai applied for was
Daniel Marsh, but Marsh delegated the responsibility for running the selecting panels to
Richard O’Neal. At the time of the selection for the first position, neither O’Neal nor Marsh
knew about Tai’s previous discrimination complaint. By the time a selection panel was
convened for the second position, Marsh and O’Neal had learned that Tai had filed a complaint
regarding her rejection for the first position and that she had settled her earlier discrimination
complaint.
To fill the first and second positions, O’Neal assembled panels made up of VA employees
from around the country. For the first position, an opening for an administrative officer,
O’Neal chose five other panel members, only one of whom was aware of Tai’s previous
discrimination complaint. O’Neal distributed the materials submitted by each applicant, and
there was no interview. According to O’Neal, after the panel members had reviewed the
materials, the panel convened by phone and each member provided numerical ratings of each
candidate. Following the call, O’Neal averaged the scores and told the panel that he would
recommend the highest scoring applicant for the position. The panel members agreed with the
recommendation and the highest scoring applicant was given the job. Out of eight applicants,
Tai had received the fifth highest score. Tai presented evidence that not every panel member
knew or recalled that the chosen applicant had the highest score, but beyond that evidence, she
did not challenge the veracity of data tables in the record showing that the high‐scoring
applicant was given the position.
The selection process for the second position, another opening for an administrative officer,
was similar to that of the first: O’Neal and four other VA employees constituted the panel, no
interviews were conducted, and, again, the job went to the applicant who received the highest
score. On this panel, only two out of five members knew of Tai’s previous discrimination
complaints. This time, Tai received the third highest score out of seven applicants. Tai
presented evidence that one of the panel members was unsure whether the high scorer was
indeed given the position, but aside from that evidence, Tai did not question the data table,
which showed that the high scorer was again given the position.

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No. 08‐2538 Page 3
Julius Chou was the selecting official for the third position, an opening for a staff assistant.
Chou was named in Tai’s settled discrimination complaint and was, therefore, aware of it. This
panel had only two other members: one knew of Tai’s earlier complaint and one did not. The
panel interviewed four applicants and assigned scores to each one. Again, the applicant with
the highest score was given the position. Tai ranked third out of the four applicants.
The district court granted summary judgment for the Secretary, reasoning that under the
direct and indirect methods of proving retaliation, Tai did not present sufficient evidence to
prove retaliation by any VA employee. Even if Tai could establish a prima facie case under the
indirect method, the court continued, she had not presented evidence that could rebut the
Department’s nonretaliatory reason for rejecting her: a different applicant scored higher than
her in each selection process.
ANALYSIS
On appeal Tai argues that she presented enough evidence to reach a jury under the direct
and indirect methods of proving a Title VII violation. See generally Atanus v. Perry, 520 F.3d 662,
671‐73 (7th Cir. 2008). The district court’s grant of summary judgment is, of course, reviewed
de novo, taking all facts in the light most favorable to Tai, the nonmoving party. See Akande v.
Grounds, 555 F.3d 586, 589 (7th Cir. 2009).
We begin with the direct method of proving retaliation. The parties agree that Tai’s charges
of discrimination and retaliation were statutorily protected activities and that she suffered an
adverse employment action. Thus, to survive summary judgment under the direct method, Tai
needed to present sufficient evidence, whether labeled direct or circumstantial, on which a jury
could find a causal connection between her rejection from the positions and her charges of
discrimination or retaliation. See Andonissamy v. Hewlett‐Packard Co., 547 F.3d 841, 850 (7th Cir.
2008).
In considering whether Tai could show the necessary causal connection, the district court
rejected Tai’s argument that simply because some of the panel members involved in each
selection knew about her prior complaints, a jury could find retaliatory animus by the whole
panel. Tai need not show that every panel member was out to get her, and she is correct that
sometimes the animus of one group member can be imputed to the entire group, see, e.g.,
Campion, Barrow & Associates, Inc. v. City of Springfield, 559 F.3d 765, 770‐71 (7th Cir. 2009), but
she has presented no evidence that could convince a jury of any animus here. To show that
some panel members were influenced by their awareness of Tai’s prior charges or that they in
turn influenced others, Tai had to show something more than just their mere awareness. See
Healy v. City of Chicago, 450 F.3d 732, 741 (7th Cir. 2006). She has not done so.

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More generally, Tai argues in support of her direct case that she presented a “convincing
mosaic” of circumstantial evidence from which a jury could have found her rejections to be
retaliatory. See Troupe v. May Depʹt Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). But Tai’s
argument greatly exaggerates the evidence. First, Tai asserts that for each position, she was
more qualified than the chosen applicant. She believes this is so because of her longer
experience and because, for the second position, she was the only applicant whose personnel
classification number would have gone down if she was given the position. Tai may have had
the most experience, but Title VII does not require employers to make promotions based on
seniority or personnel rankings. See Hall v. Forest River, Inc., 536 F.3d 615, 620 (7th Cir. 2008).
Moreover, a litigant’s assertions of her superior qualifications can only be considered evidence
of unlawful decisionmaking if, unlike the evidence Tai presented, it is “so favorable to the
plaintiff that there can be no dispute among reasonable persons of impartial judgment that the
plaintiff was clearly better qualified for the position at issue.” Mlynczak v. Bodman, 442 F.3d
1050, 1059 (7th Cir. 2006) (quoting Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002)).
Tai goes into a little more detail regarding the third position, complaining that the reasons
the Department now offers for preferring the chosen applicant were not listed in the job posting
as job requirements. Those reasons were that the chosen applicant had a more diverse range
of experiences and showed more enthusiasm than Tai. But absent some evidence or argument
that the applicant’s experiences or enthusiasm were not desirable attributes, Tai’s argument
goes nowhere. Finally, Tai also points to the closeness in time between her complaint about the
first position and her rejection from the second and third, but suspicious timing alone is almost
never sufficient to defeat a summary judgment motion in a retaliation case. See Andonissamy,
547 F.3d at 851; Tomanovich v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006).
About halfway through the argument section of her brief, Tai stumbles into a discussion of
the indirect method of proof. Although Tai does not seem to notice it, the district court
misanalyzed this part of the case, though its ultimate holding is correct. For some reason, the
district court believed that to make a prima facie case of retaliation under the indirect method,
Tai had to show the three elements required to prove retaliation under the direct method of
proof, which, as discussed above, she failed to do. But the point of Title VII’s burden‐shifting
method of proving discrimination indirectly is to ease the plaintiff’s burden by not requiring
direct proof of discrimination. See, e.g., Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d
1014, 1029 (7th Cir. 2003) (indirect method available due to “difficulty” of directly proving
discrimination). To make a prima facie case of retaliation, Tai would have had to show that
“‘(1) she engaged in statutorily protected activity; (2) she performed her job according to her
employerʹs legitimate expectations; (3) despite meeting her employerʹs legitimate expectations,
she suffered a materially adverse employment action; and (4) she was treated less favorably
than similarly situated employees who did not engage in statutorily protected activity.’”
Atanus, 520 F.3d at 677 (quoting Hilt‐Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002)).

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We need not reverse, though, because of the district court’s alternate holding that, even if
Tai could satisfy the prima facie case (and she probably can), she provided no evidence to rebut
the Department’s legitimate, nonretaliatory reasons for rejecting her from all three positions.
That is, Tai did not present any evidence of pretext regarding the decision to give each position
to the highest scoring applicant. The only evidence Tai has produced questioning the
legitimacy of the scoring process are the statements of a few panel members that years after the
selection they did not recall or did not know that the chosen applicant had the highest score.
That is not enough to rebut the undisputed evidence that the chosen applicant did have the
highest score or for a jury to conclude that anything was amiss with the scoring process. See
Atanus, 520 F.3d at 674. Accordingly, Tai’s retaliation claims fail under the indirect method of
proof.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment
against Tai.

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