Nonprecedential Disposition

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 1, 2006
Decided February 28, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1566
MELVIN E. MOSLEY, Appeal from the United States
Plaintiff-Appellant, District Court for the
Central District of Illinois.
v.
No. 04 C 1144
MAYTAG CORPORATION,,
Defendant-Appellee. Michael M. Mihm, Judge.
O R D E R
In the late 1980s, Maytag Corporation (Maytag) acquired a Galesburg, Illinois, plant
that manufactured home appliances. One of the plant’s employees was Melvin Mosley, an African-
American, who had taken an entry-level job at the facility in 1964 and been promoted to supervisor--
door production in 1975. Mosley’s move up the management ladder stalled there, however, and after
Maytag filled two open general supervisor positions (the level above supervisor) in 2001 with white
applicants, he went to the Equal Employment Opportunity Commission (EEOC), alleging (among other
things not relevant here) that Maytag failed to promote him because of his race. The EEOC eventually
issued Mosley a right-to-sue letter, and he commenced this action under Title VII of the Civil Rights
Act, 42 U.S.C. § 2000(e) et seq., and 42 U.S.C. § 1981. Maytag then moved for and was granted
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 06-1566 2
summary judgment by the district court judge (Michael M. Mihm), and Mosley filed this appeal.
Mosley is now retired; the Galesburg plant closed in 2004.
Maytag considered candidates for management-level positions only if they were identified and
given a favorable recommendation by other higher-level plant managers; there was no public posting of
open positions. Despite receiving several favorable performance assessments both before and after
Maytag took control of the plant, Mosley was never a serious candidate for promotion. Frustrated, he
complained to the plant’s manager of human resources about the company’s hiring procedures and
explained that he did not believe African-American candidates were getting a fair shake.
Not long after that discussion, Maytag sought, in April and October 2001, to fill two open
general supervisor positions. Ronnie Unger, a senior production manager, handled the April hiring
decision. Rather than hire an internal candidate, Unger posted a newspaper advertisement to solicit
outside applicants, and it was one of these, William Ginglen, who was eventually hired. Unfortunately
for Ginglen, Maytag decided only a few months later to combine his position with another general
supervisor position and he was let go. This created the October 2001 opening, which was eventually
filled by the other general supervisor whose job was combined, Lawrence Sobie. Both Ginglen and
Sobie are white.
Citing these two hiring decisions, Mosley filed (in January 2002) a formal charge of
discrimination, and Maytag was notified of the claim. In letters that September and November, Maytag
gave various reasons for not promoting Mosley, citing his alleged failure to express interest in the April
2001 position, Ginglen’s superior knowledge and experience, and Mosley’s inadequate qualifications.
While all of this was unfolding, an opening for lead supervisor--door production became available, and
Coby McWhorter, a white employee holding the same job as Mosley, received the promotion in June
2002.
During this period, Maytag’s total work force consisted of approximately 2,361 employees, 68
of whom (3 percent) were black, while of the plant’s 359 managers, at most 3 (1 percent, including
Mosley) were black. Maytag did not hire or promote an African-American to production area
manager during the time it operated the Galesburg plant.
Title VII and § 1981 claims are predicated on the same elements, Lalvani v. Cook County, 269
F.3d 785, 788 (7th Cir. 2001), so to survive a motion for summary judgment in either case a plaintiff
must offer direct evidence of discrimination or, in accordance with McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), establish a prima facie case that shifts to the employer the burden of proving it
acted without an improper motive. Judge Mihm concluded that Mosley had failed under either
approach, and Mosley has now dropped his direct evidence argument.

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No. 06-1566 3
To establish his prima facie case under the McDonnell Douglas framework, Mosley must show
that (1) he is a member of a protected class, (2) he was qualified for the position sought and applied for
it, (3) he was rejected for that position, and (4) the employee selected was not a member of the
protected group and was not better qualified than he was. Grayson v. City of Chicago, 317 F.3d 745,
748 (7th Cir. 2003). That Mosley clearly meets the first and third of these criteria is undisputed; Judge
Mihm focused on the second and fourth elements.
In granting Maytag’s motion, Judge Mihm determined that Mosley had shown a genuine issue
of material fact regarding whether he was qualified for either of the promotions. But he also concluded
that no reasonable jury could find that Ginglen and Sobie were not better qualified than Mosley for their
respective positions. Because Mosley had therefore failed to satisfy the fourth element of the prima
facie case, Judge Mihm determined that summary judgment for Maytag was appropriate.
Mosley offers a laundry list of what he says are mistakes made by Judge Mihm. He cites, for
example, the supposed inconsistencies between Maytag’s 2002 and 2003 explanations for why he was
not given the April 2001 promotion. He also accuses Maytag of destroying records about Mosley’s
eligibility for promotion, and he faults Judge Mihm for not giving due attention to Maytag’s history of
failing to employ and promote African-American managers.
But none of these arguments addresses the basis for Judge Mihm’s decision: Mosley’s failure
to raise a genuine issue of material fact questioning whether Ginglen and Sobie were more qualified than
he for the positions they received. Even if we were to assume that Maytag’s behavior provides a basis
for doubting the company’s explanations about Mosley’s qualifications for promotion, we are given no
reason to disturb the conclusion that Ginglen and Sobie were in any event more qualified for their
respective positions. Sobie’s promotion is the easiest to explain: his position, which combined the
duties of two general supervisors, was only open to employees who had already attained the level of
general supervisor. Mosley, a supervisor, was not even in the pool of applicants that were considered.
(He offers no evidence to suggest that the very selection of the pool was discriminatory.)
As for Ginglen: he has an associate’s degree in engineering and a bachelor’s degree in business
administration. He spent several years overseeing as many as 6 supervisors and 60 production
employees, 9 years running his own company, 3 years as president and general manager of another
company, and 18 years with International Harvester Company, where he achieved considerable
success. By comparison, Mosley has an associate’s degree and managed a number of full-time
production employees and other hourly workers (but not supervisory employees) for almost 30 years.
Mosley points out that Ginglen was laid off from his previous job due to a reduction in force, but that
alone does not undermine the extensive experience Ginglen brought to the table as outlined in his
resume.

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No. 06-1566 4
Mosley does not offer any other evidence to contradict Ginglen’s stated qualifications. Instead,
he relies primarily on his own conclusory assertions that he was more qualified than Ginglen, which of
course is not enough. Failing that, he complains about Maytag’s reliance on Ginglen’s resume as
evidence of his superior qualifications. He says Maytag should have thoroughly investigated Ginglen’s
background and that it should have required Ginglen to swear to the veracity of his resume.
But this argument misses the point. What matters is not whether the resume is true, but whether
Maytag believed it to be true when it hired Ginglen. Perhaps in some extreme case an employer might
be so discriminatory that it would be willing to willfully disregard the possibility that a nonminority is
lying on his resume (or even encourage an applicant to do so) in an effort to provide cover for a
discriminatory hiring decision. But where an employer has a good-faith belief that the resume is
accurate, and there is no evidence suggesting otherwise here, an employer cannot be accused of
discrimination if it turns out that an applicant deceived the employer with a buffed-up resume. Mosley
does not even offer evidence that Ginglen misrepresented himself, much less that Maytag had reason to
believe his resume to be false. Maytag’s reliance on Ginglen’s resume, on this record, was entirely
proper.
It is less clear whether and how McWhorter was more qualified than Mosley, but unfortunately
for Mosley it is not our concern: the June 2002 promotion decision is not properly at issue in this
litigation because neither Mosley’s complaint nor his EEOC charge addresses the conduct related to
that promotion. (Indeed, the EEOC charge was perfected in April 2002, before the promotion.) As
we have said previously, the EEOC must be given the opportunity to investigate alleged acts of
discrimination and, if possible, seek resolution without a lawsuit; to do otherwise would ignore the
deliberate design of Title VII. Conner v. Ill. Dep’t of Natural Res., 413 F.3d 675, 680 (7th Cir.
2005).
The judgment of the district court is AFFIRMED.

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