Sam Kulumani v. Blue Cross Blue Shield Association

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-3001 & 99-4133
Sam Kulumani,
Plaintiff-Appellant,
v.
Blue Cross Blue Shield Association,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 5391--James F. Holderman, Judge.
Argued May 10, 2000--Decided August 22, 2000
Before Easterbrook and Rovner, Circuit Judges./*
Easterbrook, Circuit Judge. Blue Cross Blue
Shield Association serves as a fiscal
intermediary in the Medicare program, processing
providers’ claims for reimbursement from the
federal fisc. Sam Kulumani worked in its Medicare
unit as an accountant (a position called
"consultant") between 1989 and 1997. Promoted
once in 1993, Kulumani sought another promotion
in 1996. This time he was turned down. Worse lay
in store. Since 1994 the federal government has
wanted more for less, and every year it reduced
what it paid Blue Cross for claims-processing
services. The Health Care Finance Administration,
on whose behalf Blue Cross acts, told Blue Cross
that its compensation for Medicare claims-
handling work in fiscal 1997 (beginning October
1, 1996) would be about $1 million less than for
fiscal 1996. Blue Cross decided that some
employees had to go. Kulumani turned out to be
one of those and was discharged in February 1997.
In this suit under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. sec.sec. 2000e to 2000e-
17, Kulumani accuses Blue Cross of national-
origin discrimination (his ancestors hale from
India, and Kulumani himself took a law degree
there) in both the nonpromotion decision and the
discharge decision. The district judge granted
summary judgment to Blue Cross, 1999 U.S. Dist.
Lexis 11896 (N.D. Ill. July 27, 1999), concluding
among other things that Kulumani did not have

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evidence calling into question Blue Cross’s
explanations for its actions: that no higher
position was open in 1996, and that he was let go
in 1997 as the weakest of Blue Cross’s comparable
employees.
We start with Kulumani’s quest for a promotion.
One of the reasons the district court gave--that
losing an opportunity to be promoted is not an
adverse job action and hence is not covered by
Title VII--has been disapproved by an opinion
released after the district court made its
decision. See Hunt v. Markham, No. 99-1331 (7th
Cir. July 11, 2000). But other grounds, including
the lack of vacancies, support the judgment.
Kulumani observes that several positions for
which he was qualified were open toward the end
of fiscal 1996, but none of these was filled. The
only hiring or promotion into a Grade 13 position
(the level Kulumani sought) during 1996 occurred
in January; hiring and promotions later were
frozen. Kulumani believes that he should have
received the Grade 13 appointment in January
1996, but if this was the discriminatory act then
Kulumani’s charge of discrimination, filed in
February 1997, was untimely. Only a failure to
promote within the preceding 300 days could have
been within the scope of the charge, but it is
undisputed that no one was promoted to Grade 13
during those 10 months. Kulumani cannot show that
Blue Cross’s decision not to promote him was
discriminatory; all aspirants for promotion were
treated alike.
The existence of a budget crunch requiring
staff trimming in fiscal 1997 likewise is
undisputed. Kulumani contends, however, that
Esther Peterson should have been released in his
stead. The district court’s opinion recounts the
undisputed facts, so we can summarize. Blue Cross
required its managers to pare their staffs using
performance and seniority as benchmarks, but
without any mechanical rule. Wilson Leong, the
manager of the unit where Kulumani worked, was
told that he and the heads of other units had to
select three employees for layoff; Kulumani was
not among the three on the unit directors’ list.
Kari Kronborg, Blue Cross’s Director of Human
Resources, decided to satisfy herself that the
selections were prudent, and she eventually
concluded that Kulumani should be dismissed
instead of Peterson. Kulumani insists that
Kronborg’s intervention is suspicious, and that
had Blue Cross followed its normal approach
Peterson would be gone and he would still be
employed.
Unusual yes, suspicious no. A Director of Human
Resources who always went along with whatever
proposals crossed her desk might as well be a

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doormat. Quality-control checks are prudent, and
occasionally these lead to different decisions;
that’s what upper-level managers are there for.
To show that Kronborg’s intervention was a
pretext for discrimination Kulumani needed to
establish not that it was unusual but that the
stated reason (quality control) was a
fabrication, designed to conceal an unlawful
reason. A "pretext for discrimination" means more
than an unusual act; it means something worse
than a business error; "pretext" means deceit
used to cover one’s tracks. See Reeves v.
Sanderson Plumbing Products, Inc., 120 S. Ct.
2097, 2108-09 (2000). But of this Kulumani has no
evidence--no statements by Kronborg, no disparate
impact from managerial interventions, nothing
except the raw fact that Kronborg stepped in.
Nor could the reasons Blue Cross gave for
keeping Peterson over Kulumani be deemed a
pretext for discrimination--not by a reasonable
trier of fact, anyway. It is undisputed not only
that seniority played a role in Blue Cross’s
selection of candidates for layoff but also that
Peterson joined Blue Cross 20 years before
Kulumani. The other factor was performance, and
here Kulumani says that he and Peterson were
tied: they had the same overall supervisory
rating. If that is so, then seniority won out and
Kulumani has no complaint.
What is more, we do not think that a reasonable
trier of fact could conclude that Kronborg lied
when she said that Kulumani and Peterson were not
tied in performance assessments. Blue Cross rates
its accountants on a four-level scale; the
levels’ names are bureaucratese, so we use
numbers, where level 1 indicates praiseworthy
performance and level 4 denotes an employee who
can’t cut the mustard. Peterson had a total of 9
ratings from her supervisors in 1996, receiving
2 level 1 grades and 7 level 2 grades. Kulumani
also had 9 ratings: 1 level 1, 4 level 2, and 4
level 3. Kulumani says that his ratings were the
same as Peterson’s, and if we looked only at
medians that would be true: each set of 9 ratings
has a median of level 2. But Kulumani’s average
rating for 1996 was 2.3, while Peterson’s average
rating was 1.8. Summaries accompanying these
ratings accorded with their numerical level;
Leong noted that Kulumani’s work was
"inconsistent" and that he was perceived by his
peers as "doing the minimum to get by." Kulumani
was the only accountant in his unit who received
any level 3 rating in 1996, a fact that Blue
Cross could deem significant. Title VII does not
require employers to use medians rather than
means; medians give less weight to extremes, but
means convey more information. To establish that
this was a put-up job, Kulumani would have to

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show that the ratings were themselves
discriminatory--perhaps that Kronborg manipulated
Kulumani’s supervisors into downrating him so
that she could ax him at the next budget cut. But
Kulumani does not contend that the ratings
reflect national-origin discrimination. Leong,
the head of Kulumani’s unit (and thus directly or
indirectly responsible for the ratings in his
file), initially favored retaining Kulumani over
Peterson. Kulumani argues only that Kronborg used
nondiscriminatory ratings in a discriminatory
manner, and that argument is too weak to persuade
a rational jury. Kulumani has no evidence--none
at all--suggesting that his national origin
played a role in the decision. He wants to put to
a jury the question whether Blue Cross would have
been better served with his services rather than
Peterson’s, but Title VII is some distance from
the sort of just-cause rule that labor
arbitrators apply.
Other circumstances that Kulumani deems odd are
the sort of vagaries inevitable in any
substantial organization. Cf. Kuhn v. Ball State
University, 78 F.3d 330 (7th Cir. 1996). Kulumani
pins his hopes on the proposition that if doubt
can be cast on any part of the employer’s
process, then the trier of fact may deem the
whole explanation a pretext for discrimination.
Reeves makes it clear, however, that pretext
means a dishonest explanation, a lie rather than
an oddity or an error. 120 S. Ct. at 2108. In
every lengthy process any given step may be a
one-in-ten or one-in-fifty occurrence (to use an
example from this case, the failure of a
particular supervisor to participate in the
decision, which Kulumani deems ominous). This
does more to illustrate the stochastic quality of
human activity, however, than to show that
someone must be covering up an unlawful motive.
Improbable events happen regularly. In a handful
of sand, some of the grains will be weirdly
shaped or contain minerals from far away,
minerals that weren’t supposed to be on that
beach. Just so with bureaucratic decisions, which
entail scores of steps. The truly suspicious
decision would be the one reached following
perfect adherence to all formal rules.
Kulumani also contends that Blue Cross held his
national origin against him when it failed to
rehire him a year later for vacancies caused by
the resignations or retirements of other
accountants. Other accountants laid off with
Kulumani were rehired to fill two of these
vacancies. Nothing in the record suggests that
Kulumani applied for these spots, however, and
there is a further obstacle to recovery on this
ground: Kulumani did not file with the EEOC a
charge of discrimination on this theory. The only

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charge he filed came in February 1997, long
before the supposedly discriminatory failure to
rehire.
Although we therefore affirm the district
court’s decision on the merits, we remand on a
procedural matter. The district court awarded
Blue Cross about $8,000 for copying expenses as
part of the costs assessed under 28 U.S.C.
sec.1920 and Fed. R. Civ. P. 54(d). Section
1920(4) allows a judge to tax as costs "[f]ees
for exemplification and copies of papers
necessarily obtained for use in the case".
Kulumani contends that no more than one copy ever
can be "necessarily obtained," but Haroco, Inc.
v. American National Bank, 38 F.3d 1429, 1441
(7th Cir. 1994), his sole appellate authority for
this proposition, does not support it. In Haroco
itself the court stated that expenses for two
sets of copies (one for each side’s lawyers)
could be taxed as costs. But in this case Blue
Cross billed for five sets of many papers,
perhaps more sets for others, substantially
exceeding what Haroco deemed reasonable. We
recognize that a district judge has discretion to
determine what copies were "necessarily obtained
for use in the case", but in this case the judge
did not explain why it was necessary to make so
many sets of copies. Two copies of every document
filed with the court or provided to opposing
counsel makes sense; it is easy to see why each
is useful. Charging for more if the court
requires more to be filed also makes sense. Five
or six copies of everything for the apparent
convenience of a platoon of lawyers at a large
defense firm is harder to justify as the sort of
outlay that may be shifted to one’s adversary.
The district judge should take another look at
this subject.
Affirmed and Remanded
/* After oral argument, Judge Ripple determined that
circumstances, not previously ascertainable,
required his recusal. He therefore ceased to
participate in the consideration or decision of
the case. The decision is being issued by a
quorum of the panel. 28 U.S.C. sec.46(d).

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