Brenda Dandy v. United Parcel Service , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2601
B RENDA D ANDY ,
Plaintiff-Appellant,
v.
U NITED P ARCEL S ERVICE , I NC .,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 01-C-0937—Rudolph T. Randa, Chief Judge.
____________
A RGUED A PRIL 7, 2004—D ECIDED O CTOBER 29, 2004
____________
Before F LAUM , Chief Judge, and W OOD and W ILLIAMS ,
Circuit Judges.
W ILLIAMS , Circuit Judge. Brenda Dandy, a United Parcel
Service (UPS) employee, alleged that her employer discrimi-
nated against her on the basis of gender and race by: (1)
creating a hostile work environment; (2) failing to promote
her; (3) paying her a lower salary than her white counter-
parts; and (4) retaliating against her. The district court
granted UPS summary judgment, dismissing all of Dandy’s
claims. It found that Dandy failed to establish a prima facie
case of hostile work environment and assumed arguendo
that Dandy established a prima facie case for her remaining
allegations, but reasoned that dismissal was proper because

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2 No. 03-2601
1 Also, from 1999 forward, UPS created the category “D” for racial
minorities and women who had potential for future advancement
(continued...)
she failed to prove that UPS’s business decisions were a
pretext for discrimination. Because we find that Dandy
failed to establish a prima facie case for any of her claims,
we affirm.
I. BACKGROUND
Dandy has worked in the Wisconsin District of UPS for
over 25 years. She first held various part-time positions at
the company and was eventually promoted to full-time super-
visor in 1986, the position she held at the commencement of
this action. Nationally, UPS is divided into 59 geographical
districts, each headed by one District Manager. In UPS’s
Wisconsin District, the District Manager oversees all em-
ployees in that state. Below the District Manager is the
Division Manager, of which there are 14, followed by the
Center Manager or Unit 2 Manager, of which there are 77.
The lowest level of management is the full-time supervisor,
of which there are 205. UPS operations are divided between
“hubs,” which receive and sort packages, and “packaging cen-
ters,” which are responsible for deliveries.
In 1993, after an internal investigation, UPS acknowl-
edged a problem with the promotion and advancement of
African Americans and women at the company. In an at-
tempt to combat this problem, UPS implemented a new pro-
motion process which involved rating or ranking employees
based on their readiness for promotion. Employees rated/
ranked “A” were deemed immediately ready for promotion,
while employees rated “B” were deemed ready for promotion
in one year. To open advancement opportunities, UPS allows,
but does not mandate, consideration of “B” ranked employ-
ees for immediate promotion. 1

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No. 03-2601 3
1 (...continued)
to ensure that all employees were being considered.
2 QPRs are completed by superiors and coworkers. Prior to 1997
QPR scores ranged from 1-6, 6 being the highest. After 1997, UPS
used a 1-100 scale. Dandy’s QPR scores are as follows:
1993 4.1
1994 4.4
1995 4.0
1996 5.2
1997 78.4
1998 81.2
1999 96.6
2000 75.5
2001 74.0
2002 92.5
3 Operational experience encompasses supervising employees who
are moving packages or actually driving a delivery car. Dandy
contends that she has operational experience, but UPS argues
that she only provided support in operations and did not serve in
a supervisory role. UPS also presented evidence that Dandy was
offered work which would qualify as operational experience but
declined the position.
UPS also holds annual Career Development meetings
(People’s Meetings) to discuss vacancies and promotions.
People’s Meetings are attended by District and Division
Managers. At these meetings, an employee is evaluated based
on his or her rating/ranking, Quality Performance Reviews
(QPRs), 2 and experience in operations. 3 According to UPS,
it predominantly promotes “A” rated employees and only
promoted “B” rated employees on two occasions. In January
1999, a male full-time supervisor rated “B” was promoted to
Unit 2 Manager, however, Dandy did not apply for that po-
sition. Also, in early 2000, “B’s” were considered for pro-

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4 No. 03-2601
motion, however, Dandy was not rated “B” at that time. She
concedes that she has not received an “A” rating since 1989.
UPS compensates its employees according to “grades,” op-
erational experience, and education. Dandy is a grade 14.
Salaries normally increase annually and factor in geo-
graphical cost of living differences. However, UPS does not
increase an employee’s base salary retroactively; therefore,
a newly hired full-time supervisor’s salary may be higher
than a more senior full-time supervisor because the more
recent hire may have a higher starting salary. There is also
a subjective component to an employee’s compensation.
Each District Manager is given a “pool” of funds to distribute
to the employees whose performance has increased the
overall productivity of the district.
II. ANALYSIS
We review the district court’s decision to grant UPS sum-
mary judgment de novo and draw all reasonable inferences
in Dandy’s favor. Hardin v. S.C. Johnson & Son, Inc., 167
F.3d 340, 344 (7th Cir. 1999). In order to avoid summary
judgment, she must come forward with specific and material
facts which create a genuine issue for trial. Patt v. Family
Health Sys., Inc., 280 F.3d 749, 752 (7th Cir. 2002). Dandy
has stated several allegations of discrimination under both
42 U.S.C. § 1981 and Title VII, 42 U.S.C. §§ 2000e et seq. First,
we must consider the relevant statute of limitations which
will dictate the scope of the evidence we may consider in
support of each claim.
A Statute of Limitations and Scope of Evidence.
1. Section 1981
In Jones v. R.R. Donnelley & Sons Co., 124 S. Ct. 1836,
1845-46 (2004), rev’g, 305 F.3d 717 (7th Cir. 2002), the
Supreme Court was presented with the question of whether

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No. 03-2601 5
4 Under Jones, it would seem that pre-Patterson § 1981 claims
which involve the making or enforcement of contracts as opposed
to claims centered on “harassing conduct that occurred after the
formation of the contract” would be subject to the analogous state
personal rights statute of limitations as they did not “arise under”
the 1991 Civil Rights Act. Id. at 1840; see also Reed v. United
Transp. Union, 488 U.S. 319, 323-24 (1989) (“Congress intended
that the courts apply the most closely analogous statute of limi-
tations under state law” to claims brought under § 1983 which has
no express statute of limitations); Goodman v. Lukens Steel Co.,
482 U.S. 656, 661-62 (1987) (applying general state statute of
limitations to action brought under § 1981); Gray v. Lacke, 885
F.2d 399, 407-08 (7th Cir. 1989) (applying Wisconsin’s six-year
general personal rights statute of limitations to 42 U.S.C. § 1983
as the most analogous).
§ 1981 hostile work environment, wrongful termination, and
failure-to-transfer claims were governed by Congress’s 4-year
catch-all statute of limitations, codified in 28 U.S.C. § 1658,
or by the most analogous state personal injury statute of
limitations. The Court reasoned that § 1658 applies to any
claim “arising under” an act of Congress which was enacted
after December 1, 1990. It therefore concluded that hostile
work environment, wrongful termination, and failure-to-
transfer claims under § 1981 were governed by § 1658
because they were in essence “enacted” by the 1991 Civil
Rights Act, which “overturned Patterson [v. McLean Credit
Union, 491 U.S. 164, 171 (1989)] by defining the key ‘make
and enforce contracts’ language in § 1981 to include the
‘termination of contracts and the enjoyment of benefits,
privileges, terms, and conditions of the contractual relation-
ship.’ ” Jones, 124 S. Ct. at 1846 (quoting 42 U.S.C.
§ 1981(b)). 4
Dandy alleges the following violations under § 1981: (1)
hostile work environment; (2) failure to promote; (3) dispar-
ate treatment in terms of compensation; and (4) retaliation.
All of Dandy’s § 1981 claims are subject to § 1658’s 4-year

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6 No. 03-2601
5 Abram et al. v. United Parcel Service, Inc., No. 97-CV-1233 (E.D.
Wis. Nov. 26, 1997).
statute of limitations because they are premised on conduct
which took place after the formation of her employment
contract. Id.; see also White v. BFI Waste Servs., 375 F.3d
288, 291-92 (4th Cir. 2004) (finding disparate treatment in
compensation claims stated under § 1981 are covered by
§ 1658). Dandy filed her complaint on September 14, 2001;
therefore, we may consider events which occurred as early
as September 14, 1997, on her hostile work environment
and retaliation claims.
The statute of limitations on Dandy’s remaining § 1981
claims alleging a failure to promote and disparate compen-
sation on the basis of race were tolled during the pendency
of a proposed class action filed by fellow UPS employees on
November 26, 1997.5 Crown, Cork & Seal Co., Inc. v. Parker,
462 U.S. 345, 352-53 (1983); Elmore v. Henderson, 227 F.3d
1009, 1012 (7th Cir. 2000). On April 5, 2000, the proposed
class voluntarily dismissed its failure to promote claim and
on May 10, 2001, the district court denied the proposed class
its motion for certification on the remaining disparate com-
pensation claim. Therefore, giving Dandy the benefit of the
tolling period, we may review evidence from May 8, 1995 to
September 14, 2001, in support of Dandy’s failure to promote
claim and evidence from April 3, 1994 to September 14,
2001, in support of her disparate compensation claim.
2. Title VII
Under Title VII, a plaintiff is required to exhaust her
administrative remedies by filing a complaint with the ap-
propriate federal or state agency. Volovsek v. Wis. Dep’t of
Agric., Trade & Consumer Prot., 344 F.3d 680, 687 (7th Cir.
2003). A plaintiff has 300 days from the alleged discrimina-

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No. 03-2601 7
tory action to file a complaint with the appropriate state
agency. 42 U.S.C. § 2000e-5(e)(1). We review solely those
charges “included in [the] EEOC charge, . . . or reasonably
related to the allegations of the charge and growing out of
such allegations.” Haugerud v. Amery Sch. Dist., 259 F.3d
678, 689 (7th Cir. 2001). Generally, we may solely consider
evidence from the 300-day period. Hardin, 167 F.3d at 344.
However, as the statute of limitations is not jurisdictional
in nature, it is subject to equitable considerations. Volovsek,
344 F.3d at 687.
For example, if a plaintiff alleges “continuing violations,”
which constitute a pattern and practice of discrimination,
we may look outside of the relevant time period. Hardin,
167 F.3d at 344. This doctrine applies to Title VII as well as
§ 1981 claims. The Supreme Court has explained the con-
tinuing violation doctrine as “preclud[ing] recovery for discrete
acts of discrimination or retaliation that occur outside the
statutory time period,” but permitting “consideration of the
entire scope of a hostile work environment claim, including
behavior alleged outside the statutory time period, . . . for
the purpose of assessing liability, so long as an act contrib-
uting to that hostile environment takes place within the
statutory time period.” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 105 (2002).
Dandy filed her first relevant EEOC charge on February
18, 1997 and the second on October 2, 1997. She received
her right-to-sue letter for both charges on April 30, 1999.
She filed her third EEOC charge on September 5, 2000. As
Dandy filed suit in federal court more than 90 days after
she received her right-to-sue letter from her first and sec-
ond EEOC charges, see 42 U.S.C. § 2000e-5(f), the allega-
tions stated therein are not properly before us and she is
limited to the claims explicitly stated in her third EEOC
charge or claims “reasonably related” to those charges.
Haugerud, 259 F.3d at 689. In her third EEOC charge,
Dandy alleged that she was denied promotions on account

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8 No. 03-2601
of her race and gender and that she was retaliated against
for filing her previous EEOC charges. She makes no men-
tion of unequal pay or a hostile work environment and
therefore those claims are not properly before us. See Cheek
v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994)
(finding claim not expressly stated in EEOC charge is “rea-
sonably related” to articulated claim and properly before
this court if it involves the same conduct and same individu-
als). As it relates to the Title VII claims properly before us,
we will review evidence concerning her claims for failure to
promote on the basis of gender and for retaliation from
November 11, 1999 to September 5, 2000. Dandy’s Title VII
claim alleging a failure to promote on the basis of race
parallels her § 1981 claim and thus will be analyzed under
§ 1981.
B. Dandy has failed to state a prima facie case of
hostile work environment based on race under
§ 1981.
Dandy bases her hostile work environment claim on several
comments made by UPS managers dating as far back as
1992 and 1993. In 1992, she alleges that Division Manager
Gary Wehner stated that the lack of promotion opportuni-
ties available at UPS were due to the “niggers and cunts.”
Dandy did not hear this statement firsthand but was told
about the incident by other employees. In 1993, three Center
Managers called Dandy a “bitch.” Once again, Dandy was
told about the comments by a co-worker. She received an
apology from each manager. Also, in 1993, District Manager
Ralph Sergott called someone a “fucking nigger” at an after-
work card game. Dandy also heard about this comment from
another employee who attended the card game. Sometime
later, a Security Supervisor called Dandy a “tiger.” Dandy
concedes that the District Manager addressed this name-
calling. And finally, in 1998, Ray Schyvinck, a full-time
supervisor, stated, in Dandy’s presence, that an African

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No. 03-2601 9
American Division Manager was “lazy” and that another
white female manager was “ignorant.”
To be actionable under § 1981, harassment must be: (1)
based on race; (2) subjectively and objectively hostile; and
(3) sufficiently severe or pervasive to interfere with an em-
ployee’s ability to perform his assigned duties. Hrobowski
v. Worthington Steel Co. & Worthington Indus., Inc., 358
F.3d 473, 476 (7th Cir. 2004). Under the objective hostility
analysis, courts may consider: (1) the frequency of the con-
duct; (2) the severity of the conduct; (3) “whether it is phy-
sically threatening or humiliating, or a mere offensive
utterance”; and (4) whether it unreasonably interferes with
the employee’s ability to complete his or her assigned
duties. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
Having failed to show that the use of racially charged
comments continued during the relevant statutory period,
Dandy is barred from relying on conduct prior to September
14, 1997, to sustain her hostile work environment claim
under the “continuing violation” doctrine. Morgan, 536 U.S. at
105; Hardin, 167 F.3d at 344. Focusing on the pertinent
time period, Dandy has alleged solely that she was called a
“tiger”(which presumably is an attack on her gender not her
race) and that another African American employee was
called “lazy” and a white female coworker was called “ignor-
ant.” She has failed to allege that these statements were
attributable to race or gender. Furthermore,“offhand com-
ments, and isolated incidents (unless extremely serious)”
are not sufficient to sustain a hostile work environment
claim. Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th
Cir. 1998) (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 786 (1998)). We must conclude that a reasonable
person could not find a work environment hostile based on
these two statements. See Harris, 510 U.S. at 21.
Even if Dandy were permitted to rely on the comments
made in 1992 and 1993, they would be insufficient to prove

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10 No. 03-2601
that she was subjected to a hostile work environment on the
basis of race. The use of racial epithets is deplorable and
this court has recognized that the use of “the word ‘nigger’
can have a highly disturbing impact on the listener.”
Hrobowski, 358 F.3d at 477. We also acknowledge that “a
supervisor’s use of the term impacts the work environment
far more severely than use by co-equals.” Rodgers v. Western-
Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993).
However, we also recognized that in determining whether
remarks “objectively” create a hostile work environment we
must assess the frequency of their use, Hrobowski, 358 F.3d
at 477 n.2, as well as whether the remarks were stated
directly to the plaintiff or whether the plaintiff heard them
secondhand, McPhaul v. Bd. of Comm’rs of Madison County,
226 F.3d 558, 567 (7th Cir. 2000). That is not to say that
racial epithets must be stated directly to a plaintiff to create
an objectively hostile work environment. Repeated use of
such highly offensive terms in the work environment (es-
pecially considering the fact that racial epithets are meant
to denigrate a group of people) may create an objectively
hostile work environment, even if they are heard second-
hand. Here, however, it is undisputed that the remarks were
made in 1992 and 1993, over ten years ago, were stated once,
and were not heard directly by the plaintiff. This analysis
would be markedly different if Dandy were able to show that
these highly offensive comments were made more than once,
or able to show that the sentiments which underlie the com-
ments pervaded the work environment. Nor has Dandy
shown that these comments interfered with her ability to
perform her duties at UPS. McPhaul, 226 F.3d at 567. Under
these circumstances, even though we are deeply troubled by
the allegation that the comments came from senior man-
agement, precedent does not permit a finding that Dandy’s
work environment was made objectively hostile.

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No. 03-2601 11
C. Dandy has failed to establish a prima facie case
for race or gender discrimination under Title VII
or § 1981 based on UPS’s decision not to promote
her.
A plaintiff may prove intentional discrimination, under
Title VII or § 1981, through direct or circumstantial evi-
dence (direct method) or resort to the indirect burden-shifting
method described in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under the direct method, a claimant must
show either “an acknowledgement of discriminatory intent
by the defendant or circumstantial evidence that provides
the basis for an inference of intentional discrimination.”
Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th
Cir. 2001). An example of direct evidence would be an
employer’s admission that an adverse employment action
was taken against an employee based solely on an imper-
missible ground, such as race. This type of evidence is
admittedly rare. Circumstantial evidence, on the other
hand, may come in the form of “suspicious timing, ambigu-
ous statements oral or written, [or] behavior toward or com-
ments directed at other employees in the protected group . . . .”
Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.
1994).
Racial epithets or stray remarks may be direct or circum-
stantial evidence of intentional discrimination if they are
sufficiently connected to the employment decision, i.e., made
by the decisionmaker, or those who influence the decision-
maker, and made close in time to the adverse employment
decision. Id.; Schuster v. Lucent Techs., Inc., 327 F.3d 569,
576 (7th Cir. 2003); Cowan v. Glenbrook Sec. Servs., Inc.,
123 F.3d 438, 444 (7th Cir. 1997). Dandy acknowledges that
she has not received an “A” rating (ready to promote) since

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12 No. 03-2601
6 Dandy makes much of the fact that under UPS policy employees
rated “B” may be promoted. She then leaps to the conclusion that
UPS’s decision not to promote her based on her QPRs and “B”
rank was a pretext for discrimination. However, she has presented
no evidence that, according to UPS policy, “B” rated employees
must be promoted or that UPS consistently promoted other
employees rated “B.” According to the record, during the relevant
time period, only two employees rated “B” were promoted from
full-time supervisor to Center Manager or Unit 2 Manager. The
first job opening occurred in January 1999, however, Dandy did
not apply for the position. The second job opening for a “B” ranked
employee came in early 2000, however, at that time Dandy’s
rating was below “B.”
1989. UPS claims that it only promotes those ranked “A.” 6
Thus, to establish direct evidence of intentional discrimina-
tion, Dandy must show that the people who ranked her, and
therefore thwarted her opportunity for promotion, in-
tentionally ranked her below “A” because of her race or
gender.
From 1994 to 1997, Charlie Brooks, Dandy’s Division
Manager, found that she was not ready for promotion be-
cause she lacked leadership skills and did not have sufficient
supervisory experience in operations. Her subsequent Division
Manager, Ken Raymond, an African American, also found
that Dandy was not ready for promotion for many of the
same reasons stated by her previous manger. Dandy’s Division
Manager from 1998 to 2000, David Ruiz, also echoed the sen-
timents of her previous managers. Finally, Kelli Franklin-
Joyner, an African American woman, who was Dandy’s
Division Manager from 2000 to 2002, also chose not to clas-
sify her as ready for promotion. Dandy has presented no
evidence that any of her managers were motivated by racial
animus or made any stray remarks which reveal that they
may have evaluated her based on illegal criteria. The com-
ments which were made during the relevant period, i.e., the
“tiger” comment and the “ignorant” and “lazy” comments, do
not aid Dandy because they were made by co-equals with no

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No. 03-2601 13
influence over the ultimate decisionmaker. See Sheehan v.
Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999) (“Direct
evidence typically relates to the motivation of the
decisionmaker responsible for the contested decision.”)
(internal quotations omitted). Furthermore, even if this
court were to consider the racial epithets made in 1992 and
1993 as support for Dandy’s claim, she has presented no
evidence of a link between those comments and any of her
evaluators (two of whom are African American). See id.
Having failed to establish direct or circumstantial evidence
of intentional discrimination, Dandy must proceed under
the indirect method of proof under the familiar McDonnell
Douglas burden-shifting approach. Establishing a prima
facie case of discrimination based upon a failure to promote
requires that Dandy prove that: (1) she is a member of a
protected class; (2) she had the requisite qualifications for
promotion; (3) she was denied the promotion; and (4) a
member of the nonprotected class who was not better
qualified was promoted instead. Grayson v. City of Chicago,
317 F.3d 745, 748 (7th Cir. 2003).
The district court assumed arguendo that Dandy satisfied
her prima facie case (for all of her remaining claims) and
granted UPS summary judgment based upon Dandy’s
inability to prove pretext. This court has repeatedly stated
that we disfavor such an approach. Peele v. Country Mut.
Ins. Co., 288 F.3d 319, 327 (7th Cir. 2002). “[T]he prima
facie case is the condition precedent to the pretext analysis”
and should not be bypassed. Plair v. E.J. Brach & Sons, Inc.,
105 F.3d 343, 347 (7th Cir. 1997). Assessing the record, we
find that Dandy has not satisfied her prima facie case, for
any of her remaining claims, and affirm the district court’s
decision on that basis. See Peele, 288 F.3d at 327 (reasoning
that even though the district court skipped the prima facie
analysis, we may affirm on this basis based on this court’s
review of the record).

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14 No. 03-2601
Dandy has failed to show that she was qualified for pro-
motion. Over an eight-year period, Dandy’s managers con-
sistently stated that she was not ready for promotion.
Dandy admits that she was only ranked “B” from 1994 to
1996 and again in 1998 and at all other times she was
ranked lower. (Recall, she has not been ranked “A” since
1989.) Her rankings correspond to her QPRs, which also
show that Dandy was not highly regarded by her coworkers
or her superiors. See supra, note 2. The consistency of her
evaluators’ substantive assessments coupled with the
conclusions of her coworkers in her QPR scores undermines
Dandy’s argument that the evaluations were a sham and
that she was actually ready for promotion.
Dandy has given this court no concrete way to measure
the candidates she alleges were unlawfully promoted over
her and instead has taken a “kitchen sink” approach to her
appeal by listing every white male employee promoted to a
rank higher than full-time supervisor without identifying
any coherent method of analysis. See Patt v. Family Health
Sys., Inc., 280 F.3d 749, 753 (7th Cir. 2002) (rejecting denial
of career opportunities claim because plaintiff failed to give
specifics); Millbrook v. IBP, Inc., 280 F.3d 1169, 1177 (7th
Cir. 2002) (discussing the possible use of statistical analysis
of data when attempting to prove failure to promote claim);
Kuhn v. Ball State Univ., 78 F.3d 330, 332 (7th Cir. 1996)
(same). Therefore, Dandy’s failure to promote claim must
fail.
D. Dandy has not proven that she was paid a lower
salary on the basis of her race or gender as she
has failed to identify “similarly situated” non-
protected class members who were treated more
favorably.
To state a prima facie case of disparate compensation, a
plaintiff must show that: (1) she is a member of a protected

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No. 03-2601 15
group; (2) she was fulfilling her employer’s legitimate
performance expectations; and (3) she suffered an adverse
employment action in that she was paid a lower salary than
a “similarly situated” nonprotected class member. Hildebrandt
v. Ill. Dept. of Natural Res., 347 F.3d 1014, 1030-31 (7th Cir.
2003). To be “similarly situated,” Dandy must show that her
performance, qualifications, and conduct were comparable to
the nonprotected class member in “all material respects.”
Durkin v. City of Chicago, 341 F.3d 606, 613 (7th Cir. 2003);
Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th
Cir. 2002).
We must also reject Dandy’s disparate compensation
claim as she has failed to identify any “similarly situated”
male or white employees who were given higher compensa-
tion. In her brief, Dandy lists the names of several white
male UPS employees she alleges were of equal grade and
position but paid higher salaries. However, she has not
provided us with any necessary comparative evidence such
as: (1) her current salary; (2) her past salary; (3) the salary
of her comparitors during the relevant time period; (4) when
her comparitors began working for UPS; or most impor-
tantly, (5) their qualifications, experience, or education.
This court has held that an employee has failed to prove
that she was “similarly situated” to her comparitors when
she did not present evidence that she and coworkers shared
the similar “attributes, experience, education, and qualifica-
tions relevant to the position sought. . . .” Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 618-19 (7th Cir. 2000).
Without the necessary information and some cogent
analysis on the part of the plaintiff, we must conclude that
she has failed to meet her burden.
E. Dandy has not proven that she suffered retaliation.
To state a claim of retaliation, Dandy must prove: (1) that
she engaged in statutorily protected activity; (2) that she

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16 No. 03-2601
7 Dandy asks that we remand her retaliation claim to the district
court because it failed to substantively address it in its summary
judgment order. We find that a remand is unnecessary as the court
explicitly stated that it was granting UPS summary judgment on
all of Dandy’s claims. Furthermore, Dandy’s retaliation claim
simply rehashes her failure to promote claim, which the district
court did substantively reject.
sustained an adverse employment action; and (3) a causal
link between the protected activity and the employer’s action.
McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th
Cir. 1997). Dandy has failed to show that any adverse
action was taken against her. Her retaliation claim is
premised on her belief that she was illegitimately denied
promotion opportunities. However, as discussed above, Dandy
has not proven that she was qualified for a promotion; there-
fore, her promotion denial does not constitute an adverse
employment action. See Patt, 280 F.3d at 754-55 (reasoning
that plaintiff may not rely on previously rejected discrimina-
tion claim as basis for adverse employment action in retal-
iation charge). Dandy alludes to UPS’s failure to transfer
her to a full-time supervisor position in Arizona as a
potential adverse employment action. However, because her
request was for a lateral transfer offering parallel pay,
benefits, and responsibilities, UPS’s refusal to grant that
request does not constitute an adverse employment action.
See Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465-66 (7th
Cir. 2002) (recognizing that this court has adopted a broad
definition of adverse employment action but requiring evi-
dence of some negative change in employment terms or
status); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 612 (7th
Cir. 2001) (holding that an adverse action must negatively
alter material terms and conditions of employment). 7

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No. 03-2601 17
III. CONCLUSION
For the foregoing reasons, the district court’s decision is
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-29-04

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