Janet A. Riley v. Elkhart Community Schools

In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐3166
J ANET A. R ILEY ,
Plaintiff‐Appellant,
v.
ELKHART C OMMUNITY SCHOOLS ,
Defendant‐Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:12‐cv‐00564‐CAN—Christopher A. Nuechterlein, Magistrate Judge.
A RGUED A PRIL 11, 2016 — D ECIDED J ULY 22, 2016
Before BAUER and WILLIAMS, Circuit Judges, and A DELMAN ,*
District Judge.
BAUER , Circuit Judge. Plaintiff‐appellant, Janet Riley, sued
defendant‐appellee, Elkhart Community Schools (“ECS”), for
discrimination under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (“Title VII”), discrimination under the Age
* Of the United States District Court for the Eastern District of Wisconsin,
sitting by designation.

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2 No. 15‐3166
Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”),
and violation of her equal rights under 42 U.S.C. § 1981. Riley
roots her causes of action in ECS’s failure to promote her to
various positions during her career as a teacher with the school
district. The district court granted summary judgment for ECS
on all claims, based on procedural bars and insufficient
evidence. We affirm.
I. BACKGROUND
ECS has employed Riley, an African‐American female, as
a teacher since 1980. She has served in multiple capacities
during her tenure. Currently, she teaches business education
at Elkhart Central High School and leads evening and summer
adult education classes. She has an administrator’s license and
is pursuing her doctorate in education. In 2010, she was named
the ECS Teacher of the Year.
From 2005 through 2013, Riley unsuccessfully applied for
twelve different positions with ECS. Seven positions are
relevant to this appeal. In 2007, Riley applied for an assistant
principal position at Elkhart Memorial High School. ECS hired
Carey Anderson, who is white. In 2008, Riley again applied for
an assistant principal position, this time at Central High
School. ECS hired Andrew Bridell, who is white. In 2009, Riley
applied for two more assistant principal positions, one at
Northside Middle School, the other at Memorial High School.
ECS hired Mary Wisniewski, who is white, for the position at
Northside Middle School; it hired Krista Hennings, who is
African‐American, for the position at Memorial High School.
In 2010, ECS posted two academic dean positions, but did
not advertise them as administrative positions. Riley did not

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No. 15‐3166 3
apply for these positions; ECS hired two white males under the
age of 40 for the openings. In both 2010 and 2013, Riley applied
for the coordinator position of the Blazer Connection program,
an after‐school tutoring program. In both instances, ECS hired
white males. Finally, in the spring of 2012, Riley again applied
for two open assistant principal positions, one at Central High
School and the other at Memorial High School. ECS appointed
a committee to screen potential candidates. The screening
committee reviewed the candidates and made recommenda‐
tions to the superintendent. The committee chose Riley for an
interview, but recommended Jason Gratsy, a white male under
40, and JaNeva Adams, an African‐American female under 40,
for the openings. The committee noted that Gratsy and Adams
performed better in their interviews than Riley; ECS ultimately
hired Gratsy and Adams.
On May 12, 2011, Riley filed an Equal Employment Oppor‐
tunity Commission charge against ECS, claiming that race, sex,
and age discrimination were the reasons that ECS had not
promoted her to any of the positions for which she had
applied. The EEOC sent Riley a right to sue letter on April 26,
2012.
On July 24, 2012, Riley filed a pro se complaint in federal
court alleging discrimination, harassment, libel, defamation,
and retaliation by ECS. On August 8, 2012, Riley filed an
amended complaint, alleging violations of Title VII race and
sex discrimination, ADEA age discrimination, and violation of
equal rights under § 1981. She filed both incarnations of the
complaint in the Southern District of Indiana, which trans‐
ferred the case to the Northern District of Indiana, where both
parties reside.

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4 No. 15‐3166
Riley retained counsel on November 26, 2012, and the
parties agreed on January 16, 2013, to have a magistrate judge
adjudicate the dispute. On May 13, 2015, ECS moved for
summary judgment. The district court granted summary
judgment for ECS on all counts, dismissing some claims on
procedural grounds, and dismissing the remaining claims
because Riley had failed to produce sufficient evidence.
Riley appealed.
II. DISCUSSION
First, like the district court, we winnow down Riley’s bevy
of claims to those which we will assess on their merits. The
other claims fail for procedural reasons. Some claims appear in
her original complaint but not in the amended complaint; an
amended complaint supersedes any prior complaint, and
becomes the operative complaint. See Anderson v. Donahoe, 699
F.3d 989, 997 (7th Cir. 2012) (citations omitted). So any claim in
Riley’s original complaint not included in her amended
complaint is extinguished. Id. These include her claims of
hostile work environment and disparate treatment.
Riley argues that we should be lenient towards her because
she drafted the original and amended complaints without
assistance of an attorney. See, e.g., Ambrose v. Roeckeman, 749
F.3d 615, 618 (7th Cir. 2014) (citations omitted) (“[w]e have
repeatedly emphasized that pro se petitions … should be held
to standards less stringent than formal pleadings drafted by
attorneys”). However, while Riley did draft her complaints
pro se, she has had counsel since November 2012. Since
retaining counsel, she has never moved to amend her com‐
plaint. Having had counsel for over three years, and ample

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No. 15‐3166 5
opportunity to amend her complaint, she is not entitled to the
usual pro se leniency.
Additionally, some of Riley’s claims are time‐barred. Both
Title VII claims and ADEA claims must be filed within 300
days of the alleged discriminatory act or unlawful practice. 42
U.S.C. § 2000e‐5(e)(1) (Title VII statute of limitations); 29 U.S.C.
§ 626(d)(1)(B) (ADEA statute of limitations). Section 1981
claims must be filed within four years of the alleged discrimi‐
natory act. 28 U.S.C. § 1658; Campbell v. Forest Pres. Dist. of Cook
Cty., Ill., 752 F.3d 665, 667–68 (7th Cir. 2014) (citing Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 382–83 (2004)). Here, Riley
filed her first charge of discrimination—her EEOC com‐
plaint—on May 12, 2011. Any Title VII or ADEA violation
related to an incident occurring before July 16, 2010 (300 days
before the filing), and any alleged § 1981 violation related to an
incident occurring before May 12, 2007 (four years before the
filing), are therefore time‐barred. This eliminates Riley’s Title
VII claims relating to the positions for which she applied in
2005, 2006, 2007, 2008, and 2009. It also eliminates her § 1981
claims related to the position for which she applied in 2005 and
2006. The district court ruled that Riley’s § 1981 failure to
promote claims relating to four assistant principal positions for
which she applied in 2007, 2008, and 2009 were also time‐
barred. This was incorrect: the claims were brought within the
four‐year statute of limitations period.
When the dust settles, these four § 1981 claims as well as
three Title VII claims remain. All of these causes of action are
for failure to promote. The § 1981 claims relate to the following
positions: (1) assistant principal available in 2007; (2) assistant
principal available in 2008; (3) assistant principal at Central

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6 No. 15‐3166
High School available in 2009; and (4) assistant principal at
Memorial High School available in 2009. The Title VII claims
relate to the following positions: (1) the academic dean
positions available in 2010; (2) the Blazer Connection coordina‐
tor position available in 2010;1 and (3) the assistant principal
positions available in 2012.
The district court correctly held that Riley failed to produce
sufficient evidence for any of these claims to survive summary
judgment. We review the grant of summary judgment de novo,
construing the facts in the light most favorable to the non‐
moving party, Riley. E.g., Chaib v. Geo Group, Inc., 819 F.3d 337,
340 (7th Cir. 2016). Summary judgment is appropriate and the
moving party is entitled to judgment as a matter of law where
“there is no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a); accord. Boss v. Castro, 816 F.3d 910, 916 (7th Cir.
2016). Here, summary judgment for ECS on these claims is
appropriate because Riley either failed to produce evidence
entirely or produced evidence that did not create a triable issue
of fact under the relevant legal framework.
To proceed to trial on a failure to promote claim, a plaintiff
either must produce “sufficient direct or circumstantial
evidence that [the employer’s] promotion decisions were
1 We do not consider her 2013 application for this position. On August 14,
2014, Riley filed an EEOC complaint regarding her failure to receive the
position in 2013. She received a right to sue letter from the EEOC on
December 11, 2014, but never incorporated the allegations from this second
right to sue letter into her complaint. Any allegation not found in the
amended complaint is forfeited. See Anderson, 699 F.3d at 997. This includes
her 2013 application for the Blazer Connection coordinator position.

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No. 15‐3166 7
intentionally discriminatory or make an indirect case of
discrimination” under the burden‐shifting method of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
Adams v. City of Indianapolis, 742 F.3d 720, 735 (7th Cir. 2014).
Here, Riley has chosen the indirect path. Under this rubric,
Riley must first produce evidence of a prima facie case for
failure to promote; if she does so, ECS must then produce
evidence of “a legitimate nondiscriminatory reason for the
employment action”; if the employer produces evidence of a
legitimate reason, the plaintiff must then produce evidence
that the employer’s “stated reason is a pretext.” Simpson v.
Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 790 (7th Cir. 2015)
(citing McDonnell Douglas, 411 U.S. at 802–04).
To demonstrate a prima facie case for failure to promote, a
plaintiff must produce evidence showing that: (1) she was a
member of a protected class; (2) she was qualified for the
position sought; (3) she was rejected for the position; and (4)
the employer promoted someone outside of the protected class
who was not better qualified for the position. Jaburek v. Foxx,
813 F.3d 626, 631 (7th Cir. 2016) (citation omitted). Summary
judgment for the employer is appropriate if the employee fails
to establish any of the elements of a prima facie case for failure
to promote. See Atanus v. Perry, 520 F.3d 662, 673 (7th Cir. 2008)
(citation omitted).
First, Riley cannot prove a prima facie case for the § 1981
claim regarding the assistant principal position for which she
applied in 2009. Section 1981 causes of action are limited to
discrimination claims based on race. See McDonald v. Santa Fe
Trail Transp. Co., 427 U.S. 273, 285–86 (1976); Humphries v.
CBOCS West, Inc., 474 F.3d 387, 402–03 (7th Cir. 2007) (section

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8 No. 15‐3166
1981 establishes causes of action for racial discrimination as
well as retaliation for opposing racial discrimination). ECS
hired Krista Hennings, an African‐American, for the assistant
principal position at Memorial available in 2009. Therefore,
Riley cannot show that ECS promoted someone outside of her
protected class for the position she sought. See Jaburek, 813 F.3d
at 631. She cannot establish a prima facie case for this § 1981
claim as a matter of law.
Second, Riley cannot prove a prima facie case regarding the
2010 academic dean positions because she never applied for
the positions. So ECS could not have rejected her. 2 See Jaburek,
813 F.3d at 631 (citing Johnson v. Gen. Bd. of Pension & Health
Benefits of United Methodist Church, 733 F.3d 722, 728 (7th Cir.
2013)) (summary judgment for defendant on Title VII failure to
promote claim appropriate where plaintiff never applied for
promotion). Because Riley failed to produce evidence that she
was rejected for the positions, she cannot establish a prima facie
case; the claims fail as a matter of law.
Third, Riley did not prove a prima facie case regarding the
Blazer Connection coordinator position, because being rejected
2 Riley argues that she did not apply for the positions because she did not
know that they were administrative positions. Citing Eighth Circuit dicta,
Riley argues that the application requirement can be excused where the
employer has no formal application process or where the employee is
unaware of the opportunity. See Kehoe v. Anheuser‐Busch, Inc., 96 F.3d 1095,
1105 n.13 (8th Cir. 1996). Even if this were established Eighth Circuit
law and we adopted it, Riley’s own deposition undermines her argument.
There, she stated that she knew of the position and did not apply because
the position required certain teaching certifications that she lacked. There
is no evidence that surreptitious ECS action precluded her from applying.

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No. 15‐3166 9
for this position does not constitute a sufficiently adverse
employment action. Failure to promote claims are only
actionable if not receiving the position is a “materially ad‐
verse” employment action. Carter v. Chi. State Univ., 778 F.3d
651, 660 (7th Cir. 2015); see also Atanus, 520 F.3d at 677. Gener‐
ally, this means that the position for which the plaintiff was
rejected offered markedly greater compensation, responsibili‐
ties, or title. See Hilt‐Dyson v. City of Chicago, 282 F.3d 456,
465–66 (7th Cir. 2002). Here, Riley presented no evidence of
how the Blazer Connection position offered a significant pay
raise, increase in responsibilities, or boost in title. The district
court appropriately called it a lateral move. Riley’s failure to
produce evidence that being rejected for the position was an
adverse employment action dooms her claim as a matter of
law.
Riley’s remaining claims fail because she has not produced
sufficient evidence of pretext. Regarding the 2012 assistant
principal positions, Riley has produced evidence of a prima
facie case for age discrimination: (1) she is over 40 years old; (2)
she has extensive teaching experience and an administrator’s
license, so she is qualified; (3) ECS rejected her for the posi‐
tions; and (4) ECS instead hired two people outside of the
protected age group—both Gratsy and Adams were under
40—who did not have her teaching experience.3
3 Riley cannot establish a prima facie case for race or sex discrimination
because Adams, like Riley, is an African‐American female. But the effect of
hiring Adams on Riley’s race and sex discrimination claim relating to
Gratsy is hazier. The district court essentially viewed the position as one
(continued...)

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10 No. 15‐3166
But ECS has produced evidence of a nondiscriminatory
reason for not hiring Riley: both Adams and Gratsy were more
qualified for the position than Riley. See Scruggs v. Garst Seed
Co., 587 F.3d 832, 838 (7th Cir. 2009) (hiring someone whom
employer believes is better qualified for position is legitimate,
nondiscriminatory reason for action). ECS produced the list of
factors that the screening committee considered in recom‐
mending candidates. These factors were:
a. [Administrative] [c]ertification;
3 (...continued)
position with two openings. This means that because ECS hired an African‐
American female for the position, both of Riley’s race and sex discrimination
claims fail, regardless of whether ECS also hired a person who is outside
Riley’s protected race and sex classes. Riley argues that we should view the
position as two distinct positions giving rise to two distinct failure to
promote claims. This means that even if ECS hired Adams, Riley can still
bring a separate claim relating to ECS hiring Gratsy.
It is hard to divine from the record whether Riley raised this argument
in the district court, so she has likely waived the argument. E.g., Homoky v.
Ogden, 816 F.3d 448, 455 (7th Cir. 2016). Further, she cites no precedent for
her position. But the district court’s ruling also cites no precedent, and it
would be improper to hold that the opinion reflects our jurisprudence on
the issue. The few analogous cases could be used to justify either position.
See, e.g., Jordan v. City of Gary, Ind., 396 F.3d 825 (7th Cir. 2005); Rooks v. Girl
Scouts of Chicago, 95 F.3d 1154 (Table) (7th Cir. 1996), 1996 WL 459941
(unpublished opinion). Ultimately, we find no reason to decide the topic
here: even if we were to agree with Riley and find that she has produced
evidence of a prima facie case for race and sex discrimination related to
hiring Gratsy, she has not produced sufficient evidence of pretext, and her
claim would still fail as a matter of law.

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No. 15‐3166 11
b. Skills, abilities, attributes, training, and educa‐
tion which the applicant possesses which would
be necessary or desirable for an [ECS] adminis‐
trator, and any other employment requirements
imposed by law;
c. Contribution the applicant is likely to make to
students and/or the school system due to special
training and/or competence;
d. Ability to communicate and relate effectively to
others;
e. Good past performance in position(s) with [ECS]
[s]chools or other school corporations;
f. Opportunity for professional growth of the
applicant; and
g. Length of service of the applicant in the [ECS].
ECS listed the factors in order of priority. Thus, length of
service in ECS—which Riley argues differentiates her from
Gratsy and Adams—was the least important factor for the
committee’s consideration.
ECS also produced the affidavit of Krista Hennings, who
was a member of the screening committee. Hennings averred
that the committee believed that Adams and Gratsy were the
best at answering interview questions, specifically the ques‐
tions relating to particular ways to improve the respective
school to which the applicant would be assigned. Hennings
noted how Gratsy’s and Adams’s answers to these specific
questions related directly to factors c, d, and f of the commit‐
tee’s assessment rubric. Hennings also stated that Riley did not

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12 No. 15‐3166
communicate as effectively in her interview; she tended to
criticize without providing potential solutions. Hennings also
noted that the committee did not view Riley’s teaching
experience with ECS as dispositive, given that seniority was
the least important factor in the screening committee’s rubric.
In response to ECS’s evidence, Riley needed to produce
evidence of pretext. She has not done so. Simply put, pretext is
a lie—“a phony reason for some action.” Smith v. Chi. Transit
Auth., 806 F.3d 900, 905 (7th Cir. 2015) (quotation marks and
citation omitted). Riley produced evidence that she has many
years of teaching experience, has an administrator’s license,
and performed well in the past, as evidenced by her Teacher of
the Year award; nevertheless, ECS hired two people with less
teaching experience. But we have set a high evidentiary bar for
pretext. Evidence of Riley’s qualifications “only would serve as
evidence of pretext if the differences between her and [Adams
and Gratsy] were ‘so favorable to the plaintiff that there can be
no dispute among reasonable persons of impartial judgment
that the plaintiff was clearly better qualified for the position at
issue.’” Hobbs v. City of Chicago, 573 F.3d 454, 462 (7th Cir. 2009)
(emphasis added) (quoting Millbrook v. IBP, Inc., 280 F.3d 1169,
1180 (7th Cir. 2002)) (other citation omitted).
Riley has not produced evidence that she was clearly better
qualified for the position than Gratsy and Adams. The evi‐
dence presented shows that while Riley had more teaching
experience, all three had comparable administrative experience
and training. Thus, all three were on the same plane for the
assistant principal position, an administrative position.
Further, Riley has produced no evidence that contradicts
Hennings’s statements regarding the answers of the candidates

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No. 15‐3166 13
to the interview questions. Finally, the evidence produced
shows that ECS valued length of service to ECS as the least
important consideration for recommending a candidate for the
position. Therefore, since there is no evidence that she was
clearly better qualified than either Gratsy or Adams, Riley’s
age discrimination claim fails as a matter of law.
Nor is there sufficient evidence of pretext for the § 1981
claims relating to her 2007, 2008, and 2009 applications to
assistant principal positions. In each instance, ECS hired a
white woman or man instead of Riley. She argues that she was
better qualified than these three because she had more teaching
experience and had worked at ECS longer. But this is not
sufficient evidence that she was clearly better qualified for the
positions. As with the Title VII age discrimination claim related
to the 2012 assistant principal positions, that Riley had more
teaching experience does not carry particular weight. The
position was administrative, and each of the three people that
ECS chose obtained his or her administrator’s license at the
same time as Riley. Thus, Riley had comparable administrative
experience and training as the three candidates whom ECS
eventually hired. Riley’s only evidence of better qualifications
is that she has more seniority than the people hired. But
seniority is “not enough to meet her burden” for pretext.
Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 738 (7th Cir.
2006) (citations omitted).
A court is not a “super personnel department that second‐
guesses employers’ business judgments.” Millbrook, 280 F.3d at
1181 (quotation marks and citation omitted). Judicial interven‐
tion is permissible if there is sufficient evidence of “unlawful
hiring practices,” particularly where an employer fails to hire

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14 No. 15‐3166
or promote someone clearly better qualified than the person
chosen. Id. at 1180–81; see Deines v. Texas Dept. of Prot. and
Regulatory Services, 164 F.3d 277, 279 (5th Cir. 1999), quoted in
Millbrook, 280 F.3d at 1179–80 (“The single issue for the trier of
fact is whether the employer’s selection of a particular appli‐
cant over the plaintiff was motivated by discrimination.”). But
that is not the case here, because there is not sufficient evidence
that Riley was clearly better qualified than any of the three
people chosen. Riley’s § 1981 claims fail as a matter of law.
III. CONCLUSION
We AFFIRM the grant of summary judgment in favor of
ECS.

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