Brian D. Grigsby v. RAY LAHOOD, Secretary of the United States Department of Transportation

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1072
BRIAN D. GRIGSBY,
Plaintiff-Appellant,
v.
RAY LAHOOD, Secretary
of the United States Department
of Transportation,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-01649—Richard L. Young, Chief Judge.
ARGUED SEPTEMBER 17, 2010—DECIDED DECEMBER 6, 2010
Before POSNER, KANNE, and WOOD, Circuit Judges.
KANNE, Circuit Judge. After discovering that his job as
an Air Traffic Controller at one of the Federal Aviation
Administration’s (FAA’s) automated service stations
was set to be eliminated in a reduction in force, Brian
Grigsby applied for several vacant positions with the
FAA at its Indianapolis Center. The FAA’s Human Re-

-- 1 of 13 --

2 No. 10-1072
sources department conducted a cursory review of
Grigsby’s application and rated him as qualified for
each post. Grigsby was then interviewed, but was not
selected for any of the vacancies by the hiring official.
Grigsby subsequently brought an employment discrim-
ination suit against the Secretary of the United States
Department of Transportation, claiming that the FAA
failed to select him due to his Native American heri-
tage. The district court granted summary judgment
in favor of the Department of Transportation, holding
that Grigsby failed to establish a prima facie case
of discrimination and did not offer sufficient evidence
to proceed under a mixed-motive theory. Because
Grigsby was not qualified for each of the four positions,
we affirm.
I. BACKGROUND
Grigsby began employment with the FAA in
January 1991, initially hired as part of a co-op learning
program where he worked in various posts while
finishing his aviation degree. In 1993, after completing
his degree and attending the Air Route Traffic Control
Academy, Grigsby was posted as a developmental Air
Traffic Controller at the Indianapolis Center, an en route
facility responsible for directing air traffic throughout
a large section of airspace centered around Indianapolis,
Indiana. As a developmental controller, Grigsby was
to undergo training with the goal of becoming a
Certified Professional Controller at the Indianapolis
Center. That certification would permit him to operate

-- 2 of 13 --

No. 10-1072 3
the radar screens at the Indianapolis Center without
active supervision.
Grigsby’s training began uneventfully. He was first
trained and certified as a radar associate on all seven
radar stations, where he served as another set of eyes
for the controllers and familiarized himself with the
radar equipment. Grigsby then began radar controller
training, where he learned how to independently oper-
ate the radar stations that monitored various sectors
of Indianapolis airspace. Grigsby finished training
for two of the radar sectors. Throughout this period,
Grigsby also worked in the Indianapolis Tower, where
he became certified in arrival data, flight data, and clear-
ance delivery.
In the midst of his training, Grigsby became aware of
his Native American heritage. He educated himself
about his Sioux, Cherokee, and Apache roots and began
to share his background with his coworkers. Grigsby
claims that this led to a number of hostile comments
from his coworkers, who began to call him “Chief,”
“Running Planes Together,” and “Metal Rain,” among
other insults. While Grigsby did not file a complaint
regarding these comments, he did request a transfer to
another facility, ostensibly to escape this abuse. The
FAA agreed to transfer him to an automated service
station in Terre Haute, Indiana. Grigsby withdrew from
training at the Indianapolis Center, completed the
separate training necessary to work at an automated
station, and began work in Terre Haute in 1997. Grigsby
worked at the Terre Haute facility from 1997 until 2005,

-- 3 of 13 --

4 No. 10-1072
attaining Full Performance Level certification at that
location along the way.
Between 2003 and 2005, the FAA began a series of
changes, both technological and administrative. First,
the Indianapolis Center underwent a significant over-
haul: its radar system was upgraded, the operational
equipment in the Center was modernized, and opera-
tional procedures were adjusted to accommodate these
changes. All radar controllers and managers received
classroom and simulation training related to the modern-
ization. Second, in 2005, the FAA privatized its auto-
mated flight service centers, including the Terre Haute
facility. This privatization led to a reduction in force
for staff members employed at those locations, and
Grigsby’s job was set to be eliminated.
Shortly after finding out about the reduction in force,
Grigsby learned of a number of open positions at the
Indianapolis Center. The vacancies were for one tem-
porary Operations Supervisor, five permanent Opera-
tions Supervisors, nine Traffic Management Co-
ordinators, and three Support Specialists. Each qualified
as a promotion for Grigsby. For all of the vacancies, the
FAA’s Human Resources department posted a set of
minimum qualifications, conducted a cursory review of
the applications to determine whether the applicants
were qualified, and tendered the applications to the
hiring official at the Indianapolis Center for review.
Grigsby applied for each category of open positions,
was rated as qualified by Human Resources, and was
interviewed.

-- 4 of 13 --

No. 10-1072 5
Before hearing back about the decisions, Grigsby had
multiple meetings with Kathryn Hughes, the Assistant
Air Traffic Manager at the Indianapolis Center. At each
discussion, Grigsby spoke with her about his ongoing
interest in the vacancies at the Indianapolis Center and
his general desire to relocate to the Indianapolis area.
During their last discussion, Grigsby also told
Hughes that he was Native American. Grigsby claims
Hughes bristled at this statement and abruptly ended
their meeting.
Grigsby later received word that he was not selected
for any of the positions. To come to his hiring decisions,
David Boone, the Air Traffic Manager at the Indianapolis
Center, discussed the matter with Hughes and other
senior staff and independently reviewed the credentials
of each applicant. Boone hired no one for the temporary
Operations Supervisor position, leaving the post unfilled.
For the remaining positions, Boone selected candidates
who were already Certified Professional Controllers
and were familiar with the technology in place at the
Indianapolis Center. While Grigsby had obtained Full
Performance Level certification at the Terre Haute
Center, he was not a Certified Professional Controller.
Believing that the FAA had failed to select him on
account of his Native American origin, Grigsby brought
a discrimination claim under Title VII of the Civil Rights
Act, 42 U.S.C. §§ 2000e et seq., against the Department
of Transportation in the United States District Court for
the Southern District of Indiana. The district court
granted the Department of Transportation’s motion for

-- 5 of 13 --

6 No. 10-1072
summary judgment, holding that Grigsby failed to
show that the hiring official was aware of his Native
American origin, that he did not meet his burden to
establish a prima facie case, and that he did not
offer sufficient evidence to infer discrimination under
a mixed-motive theory. Grigsby timely appealed.
II. ANALYSIS
The only issue before us is whether the district court
erred in granting summary judgment in favor of the
Department of Transportation. We review a grant of
summary judgment de novo, viewing the record in the
light most favorable to the non-moving party and taking
all reasonable inferences in that party’s favor. Carmichael
v. Vill. of Palatine, Ill., 605 F.3d 451, 456 (7th Cir. 2010).
To establish discrimination sufficient to survive a
motion for summary judgment, a plaintiff may proceed
under the direct or indirect method of proof. Winsley v.
Cook County, 563 F.3d 598, 604 (7th Cir. 2009). If a plain-
tiff has failed to show that the sole motive for a per-
sonnel action was discriminatory under either method,
he can still proceed past summary judgment under a
mixed-motive theory if he can offer direct or circum-
stantial evidence showing that illegal discrimination
played some role in the employer’s decisionmaking.
Abioye v. Sundstrand Corp., 164 F.3d 364, 369 (7th Cir. 1998).
Because Grigsby’s brief is unclear as to which approach
he employs, we will evaluate each in turn.

-- 6 of 13 --

No. 10-1072 7
A. Direct Method
A careful review of the record shows that Grigsby is
unable to proceed under the direct method of proof. To
proceed under that method, a plaintiff must offer either
direct evidence that acknowledges discriminatory animus
on the part of the employer or circumstantial evidence
which establishes discriminatory motive through a
longer chain of inferences. Mach v. Will County Sheriff, 580
F.3d 495, 499 (7th Cir. 2009). Grigsby’s only proffer under
this method is his claim that Hughes, the Assistant Air
Traffic Manager at the Indianapolis Center, changed
her demeanor and ended their discussion when he
stated that he was Native American. Even read in the
light most favorable to Griggs, this circumstantial evi-
dence misses the mark, as it does not “point directly to
a discriminatory reason for the employer’s action.”
Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th
Cir. 2003). As we have held elsewhere, unfriendly
glances and other subtle indicia of distaste generally
fall short of establishing discrimination under this
method of proof. See, e.g., Dear v. Shinseki, 578 F.3d 605, 609
(7th Cir. 2009); Pafford v. Herman, 148 F.3d 658, 666 (7th
Cir. 1998).
B. Indirect Method
Because Grigsby cannot proceed under the direct
method, he is left with the indirect method of proof and
its “barnacle-laden” burden-shifting framework. Pantoja
v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 845 (7th Cir.

-- 7 of 13 --

8 No. 10-1072
2007). To move past summary judgment under that
framework, a plaintiff must first establish a prima facie
case by showing that he is a member of a protected class,
he applied for and was qualified for an open position,
he was rejected for the position, and the position was
filled with a person not in the protected class who
had similar or lesser qualifications than the plaintiff.
Jackson v. City of Chicago, 552 F.3d 619, 622 (7th Cir. 2009).
If a plaintiff satisfies that burden, an inference of dis-
crimination arises, an inference that can be dispelled if
the employer offers a non-discriminatory, legitimate
reason for the personnel action. Stockwell v. City of
Harvey, 597 F.3d 895, 901 (7th Cir. 2010). If the employer
offers such a reason, the plaintiff must then show that
the proffered reason is actually a pretext for illegal dis-
crimination. Adelman-Reyes v. Saint Xavier Univ., 500
F.3d 662, 666 (7th Cir. 2007).
The district court held that Grigsby failed to establish a
prima facie case, as he was not qualified for the vacant
positions and was not more qualified than the
applicants selected. Even assuming that Grigsby made
out a prima facie case, the district court also concluded
that Grigsby did not show that the legitimate reason
offered by the FAA for its decision was pretext. Grigsby
claims that the district court erred, asserting that he
was qualified because he appeared on the initial list of
qualified applicants put forth by the FAA’s Human
Resources department. Because full certification was
not listed on the job postings, Grigsby argues that he
should not have to show it as part of his prima facie case

-- 8 of 13 --

No. 10-1072 9
and that any purported reliance on it by the FAA is a
pretext for illegal discrimination.
We agree with the district court that Grigsby was not
qualified for the vacant positions and, as such, his prima
facie case fails. Pafford, 148 F.3d at 670. We can dispense
first with Grigsby’s claim that he was qualified for the
Support Specialist post. The vacancy announcement for
this position required the employee to maintain opera-
tional currency at the Indianapolis Center, which
meant that the employee would need to independently
serve as an Air Traffic Controller for at least eight
hours per month. In turn, to work as a controller with-
out supervision, the employee would need to be a
Certified Professional Controller at the Indianapolis
Center, a certification that Grigsby lacked.
Grigsby argues that his Full Performance Level certifica-
tion is the same as Certified Professional Controller
status, and thus he was qualified for the Indianapolis
Center positions. Construing the facts in the light
most favorable to Grigsby, we may assume that the
two titles convey roughly the same information. It
remains true, however, that Grigsby’s duties at Terre
Haute were different in several respects from those at
the Indianapolis Center, and his certification at Terre
Haute did not qualify him to work as a controller at the
Indianapolis Center without supervision. To do so, he
would have to restart his Indianapolis Center training,
an endeavor that would require some time to complete.
Grigsby was similarly unqualified for the Traffic Man-
ager Coordinator and Operations Supervisor posts. While

-- 9 of 13 --

10 No. 10-1072
the vacancy announcements for those positions did not
facially require that applicants maintain operational
currency at the Indianapolis Center, FAA directives did
impose that requirement on all Coordinators and Opera-
tions Supervisors. As such, for the same reasons dis-
cussed above, any hire would need to be fully certified
at the Indianapolis Center, making Grigsby functionally
unqualified for both posts.
Even if we were to assume that Grigsby was qualified,
his prima facie case still fails because he cannot show
that the positions were filled by applicants who had
similar or lesser qualifications than him. See Hobbs v. City
of Chicago, 573 F.3d 454, 460-61 (7th Cir. 2009). First, all
of the successful applicants for the vacant posi-
tions were Certified Professional Controllers and,
unlike Grigsby, could maintain operational currency at
the Indianapolis Center without undergoing significant
additional training. Second, all of the successful ap-
plicants were already familiar with the technology and
automation in place at the Indianapolis Center. By
contrast, Grigsby lacked experience with the new tech-
nology placed at the Center since his 1997 departure
from that facility.
Assuming for the purposes of argument that Grigsby
has established a prima facie case, he cannot show that
the FAA’s legitimate reason for failing to select him was
a pretext for discrimination. The FAA asserts that it
did not select Grigsby because he could not maintain
operational currency at the Indianapolis Center at the
start of his employment and because he lacked

-- 10 of 13 --

No. 10-1072 11
familiarity with the Center’s upgraded technology. Once
the FAA offered a legitimate reason for its personnel
decision, the burden shifted back to Grigsby to show, by
a preponderance of the evidence, that the proffered
reason was pretextual. Sartor v. Spherion Corp., 388 F.3d
275, 279 (7th Cir. 2004). To meet his burden, Grigsby
claims that the FAA has given conflicting reasons for
failing to select him in favor of other candidates. This
claim is unsupported by the record, which shows that the
FAA has consistently told Grigsby that he was not
selected due to a lack of certification and experience at
the Indianapolis Center. Grigsby also recites a number of
reasons why he was qualified for the vacant postings, but
this is also insufficient to satisfy his burden, as it does not
establish that the FAA’s articulated rationale was a lie
designed to conceal true discriminatory animus. Burks v.
Wis. Dep’t of Transp., 464 F.3d 744, 754-55 (7th Cir. 2006).
We note that this is not a case where an employer
imposed an additional qualification on applicants after
applications were already tendered and then used that
qualification to justify not selecting a candidate. In
those cases, some of our sister circuits have held that
an employer’s claimed reliance on an additional,
unstated qualification could raise suspicions about dis-
criminatory intent that preclude summary judgment
in favor of the employer. See Bergene v. Salt River Project
Agric. Improvement and Power Dist., 272 F.3d 1136, 1143
(9th Cir. 2001); Williams v. Nashville Network, 132 F.3d
1123, 1132-33 (6th Cir. 1997) (per curiam). In each of
these cases, however, the additional requirement was

-- 11 of 13 --

12 No. 10-1072
neither stated on the face of the vacancy announcement
nor affirmatively required by law or directive. That is not
the case here—for each of the vacant posts, either FAA
directives or the vacancy announcement required that
the applicant maintain operational currency at the India-
napolis Center, and this requirement was a “central
and legitimate hiring consideration” for the open posts.
See Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir.
2010).
C. Mixed Motive
Grigsby’s final claim is that, even if the FAA relied on
legitimate reasons for not hiring him, his race and
national origin also entered into the calculus, leaving
him free to proceed under a mixed-motive theory of
liability. To put forth a mixed-motive claim, Grigsby
must nevertheless come forth with direct or circum-
stantial evidence of discrimination. Abioye, 164 F.3d at
369. As we have already noted, Grigsby lacks direct or
circumstantial evidence of discrimination, so his mixed-
motive claim fails for this reason alone. Even if he did
have that evidence, an employer can avoid a finding of
liability by showing that it would have made the same
decision even if it had not allowed race or national
origin to enter into the decisionmaking process. Hossack
v. Floor Covering Assoc. of Joliet, Inc., 492 F.3d 853, 860
(7th Cir. 2007). There is ample evidence in the record
showing that the FAA made its decision to hire other
applicants based on their superior certifications and
familiarity with the Indianapolis Center and that it

-- 12 of 13 --

No. 10-1072 13
would not have selected Grigsby because he lacked this
expertise. As such, summary judgment in favor of the
FAA was appropriate.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment.
12-6-10

-- 13 of 13 --