Gregory Stinnett v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3626
GREGORY STINNETT,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 709—Amy J. St. Eve, Judge.
ARGUED NOVEMBER 9, 2010—DECIDED JANUARY 4, 2011
Before POSNER, TINDER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Gregory Stinnett, an Ambulance
Commander in the Chicago Fire Department, brought
suit against the City, charging that its failure to promote
him to Field Officer in the department’s emergency
medical services division discriminated against him
because of his race (he is black), in violation of Title
VII. The district judge granted summary judgment for
the City.

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2 No. 09-3626
Stinnett had taken the Field Officer promotional exam
in 2000. An applicant’s score on the exam, together with
his seniority, determined his ranking on the 2000 Field
Officer eligibility list. On the basis of his score and his
seniority Stinnett was ranked 32. Two white Ambulance
Commanders, Byrne and Kaveney, were ranked 29 and
31 respectively. Actually all three had identical scores on
the exam, but Byrne and Kaveney had more seniority
than Stinnett, which is why their composite scores ex-
ceeded his and thus propelled them above him on
the eligibility list.
The number of names on the list exceeded the number
of vacancies in the ranks of Field Officers. The fire de-
partment went to the list eight times to fill vacancies.
The last time—February 16, 2007—the department pro-
moted Byrne and Kaveney (number 30 on the list,
having retired in the interim, was not promoted, making
way for Byrne, number 29). Stinnett was next in line
for promotion but the department made no more pro-
motions from the 2000 list.
In December 2006, shortly before those promotions,
the department had announced that there would be a
new exam for promotion to Field Officer and that it
would be given on March 23, 2007, five weeks after the
last promotions (those of Byrne and Kaveney) from the
old list. Stinnett took the new exam, and his score on
it, combined with his seniority, placed him 48th on the
2007 Field Officer eligibility list. When he brought suit
on February 1, 2008, he had not yet been promoted; and
as far as we know, he still has not been. The month
after he sued, the fire department promoted eleven Am-

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No. 09-3626 3
bulance Commanders on the new eligibility list to Field
Officer but not Stinnett, who was far down on the list.
Those were the first promotions from the new list.
McDonnell Douglas entitles a plaintiff in a Title VII case
to a trial if (so far as pertains to this case) he can show
that he was qualified for a promotion but was denied
it and instead a member of a different race who was
“similarly situated” to him got the promotion, unless
the defendant articulates (and the plaintiff fails to rebut)
a nondiscriminatory reason for promoting that other
person. The district judge cut off Stinnett at the thresh-
old, ruling that Byrne and Kaveney were not similarly
situated to Stinnett because they ranked higher than he
on the 2000 eligibility list, and that the eleven Am-
bulance Commanders promoted ahead of him in 2008
(some of whom were white) were not similarly situated
to him either, because they ranked higher than he on the
2007 eligibility list.
The precise meaning of “similarly situated” is critical
in many employment discrimination cases in which the
plaintiff is relying on the approach authorized by
McDonnell Douglas, because if the term is defined too
narrowly discrimination will go unremedied and if too
broadly plaintiffs will be able to avoid summary judg-
ment in the defendant’s favor too easily. This case illus-
trates both dangers. The second involves Stinnett’s effort
to compare himself to all the whites promoted ahead
of him. If everyone who qualifies for promotion to a
particular position is deemed by virtue of that fact simi-
larly situated to everyone else, then two requirements
of the prima facie case authorized by McDonnell Douglas—

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4 No. 09-3626
proof that the plaintiff was qualified for the position
he sought and proof that he was similarly situated to
the person who got the position in his place—collapse
into one. The fact that Stinnett was not promoted
even though he had done well enough on the exam to
get on the 2000 eligibility list thus does not show that
those promoted ahead of him were similarly situated to
him, Grayson v. City of Chicago, 317 F.3d 745, 749 (7th
Cir. 2003); White v. Columbus Metropolitan Housing Author-
ity, 429 F.3d 232, 243 (6th Cir. 2005), especially since all
of them ranked above him on the promotional lists. This
could be compelling evidence that he was not similarly
situated to them, Jones v. City of Springfield, 554 F.3d 669,
671-72 (7th Cir. 2009), though that would depend on how
rigidly the employer was committed to hiring on the
basis of an employee’s position on the list, since other
qualifications might outweigh a lower ranking. Torgerson
v. City of Rochester, 605 F.3d 584, 596 (8th Cir. 2010). Still,
it is at least clear that Stinnett was not entitled to be pro-
moted ahead of competitors for promotion who ranked
higher than he.
It would be different had he presented evidence that
the promotional exams were biased in favor of whites,
42 U.S.C. § 2000e-2(k)(1)(A)(i); Adams v. City of Chicago,
469 F.3d 609, 613 (7th Cir. 2006), or that the scores on
the exams had been altered, or the exams deliberately
manipulated in some other way, to favor whites. Brown
v. Alabama Dep’t of Transportation, 597 F.3d 1160, 1176-77
(11th Cir. 2010). Such evidence would provide a route
alternative to that of McDonnell Douglas to establishing
a prima facie case of discrimination. Stinnett presented
no such evidence.

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No. 09-3626 5
But with respect to the promotion of Byrne and
Kaveney—that is, comparing Stinnett only to those two
and not to them plus whites promoted, also ahead of
him, from the subsequent list—his case is different. There
were vacancies in the ranks of the Field Officers when
the fire department stopped filling vacancies from the
2000 list after promoting Byrne and Kaveney. Stinnett,
the black man, was the next on the list. Had the depart-
ment filled just one more vacancy from that list he
would be a Field Officer today.
The district judge’s ruling that Stinnett was not
similarly situated to Byrne and Kaveney and therefore
his case fails at the threshold takes too narrow a view of
what it means to be similarly situated. Stinnett is not
arguing that he should have been promoted ahead of
Byrne or Kaveney; he does not question the legitimacy
of a ranking system that placed him below them. His
argument is that the department should not have
stopped filling vacancies from the 2000 list when it
reached his name. The employer had a well-established
practice of filling a vacancy for Field Officer by
promoting the highest-ranking person on the current
eligibility list. This made Stinnett similarly situated to
Byrne and Kaveney because the relevant similarity was
the similarity of persons eligible for the next promotion.
All three were eligible; all three would have been pro-
moted had the department not stopped filling vacancies
from the 2000 list the day they promoted Byrne and
Kaveney. Indeed, Stinnett would have been promoted
had the department filled one more vacancy from the
2000 list even if Byrne and Kaveney had been vastly

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6 No. 09-3626
more qualified than he—of which there is no evidence;
their higher positions on the list were due solely to
their greater seniority and the record does not reveal
how much greater that was; if they were more senior
by just a few days or weeks that would not be evidence
that they were better qualified for promotion than Stinnett.
Since, despite being similarly situated to Byrne and
Kaveney, Stinnett was treated worse than either of
them, and he is black and they are white, it behooved
the City to give a reason or reasons for the difference
in treatment. The reason it gave is that like other em-
ployers it does not use the same eligibility list till the
end of time, for then new employees would never be
eligible for promotion. Employers therefore update
their eligibility lists from time to time. There is nothing
invidious about such updating. Deveraux v. City of
Chicago, 14 F.3d 328, 331 (7th Cir. 1994). It has no
tendency to favor one racial or other protected group
over another, though when an employer updates an
eligibility list the ranking a person had on the previous
list may change. By the end of 2006 the fire department’s
2000 list was obsolete. The department wanted to change
to a system in which a new exam would be given, and a
new eligibility list compiled, every three years. Because of
the time it would take, beginning in 2006, to design and
administer a new exam, score the results, and compile a
new eligibility list, promotions from a new list would not
be made (as it turned out) until 2008. It thus was past time,
in 2006 when the decision was made to create a new
list, and February 2007, when the last promotions from

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No. 09-3626 7
the old list were made, for a new list to be created
from which to make all further promotions.
A black employee was next on the list to be promoted
when the old list was shelved. But given the racial compo-
sition of that list, the fact that he was black and the
two officers who were promoted just before the door
slammed shut were white could easily have been due
to chance. Of the 54 persons on the 2000 eligibility list,
only 11 percent were black; the race of 2 percent is undis-
closed, so the minimum percentage of nonblacks was 87
percent (87 percent + 2 percent + 11 percent = 100 percent)
and the maximum percentage of blacks was 13 percent.
This made the probability that two persons in a row who
were promoted (Byrne and Kaveney) were not black at
least 76 percent (.87 × .87), and the probability that the
next person on the list was black at most 13 percent.
These probabilities do not support an inference of delib-
erately stopping short to prevent a black person from
being promoted; in the terminology of McDonnell
Douglas they do not show that the decision to make
further promotions from a new list was a pretext (a lie)
designed to conceal racial discrimination.
And because Byrne and Kaveney ranked above
Stinnett on an eligibility list not contended to be
racially biased, their being promoted ahead of him was
not a suspicious circumstance either. It would be sus-
picious if when they were promoted there had been an
additional vacancy that could have been filled at that time.
But when Byrne and Kaveney were promoted there
was final budgetary approval for only two promotions.

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8 No. 09-3626
Later, money for additional ones became available, but
later was after the deadline for registering to take the
new exam, and all promotions were suspended until the
exam was graded and a new eligibility list prepared.
Although Byrne and Kaveney were promoted after
it was decided to create a new eligibility list, the depart-
ment had submitted a request for approval of two promo-
tions to Field Officer before the decision to create a new
list was made.
The new exam was administered in March 2007 and
the last promotions (Byrne and Kaveney) from the old
list were made in February. It would have been odd,
given the new exam, to have continued filling vacancies
from the old eligibility list, especially since the City’s
practice had been to promote Ambulance Commanders
from the 2000 list only once each year and the promotions
for 2007 had already been made. No additional promotions
were made until the following March, when the new
list was available.
The clincher is that Deputy Fire Commissioner Noy,
who made the decision to stop promoting from
the 2000 list in February 2007, testified that he
hadn’t yet been informed who was on the list, and so
couldn’t have known that the next person on the list
was black. There was no credible evidence contradicting
his testimony. The absence of such evidence is crucial
because we give no weight to remarks by the district
court and by the City in its brief that Noy is himself
black, the suggestion being that a black supervisor
should be presumed not to discriminate against a black

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No. 09-3626 9
underling. That is not a proper presumption. Castaneda v.
Partida, 430 U.S. 482, 499 (1977); Haywood v. Lucent Tech-
nologies, Inc., 323 F.3d 524, 530 (7th Cir. 2003); see also
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78-
79 (1998). A black supervisor might well yield to pres-
sure to promote a white over a black, just as a male
supervisor might well yield to pressure to increase the
percentage of women in his division. Nevertheless, for
the reasons we've explained, the judgment in favor of
the employer must be
AFFIRMED.
1-4-11

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