Dennis Walker v. Abbott Laboratories

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3119
D ENNIS W ALKER ,
Plaintiff-Appellant,
v.
A BBOTT L ABORATORIES ,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 97 C 3882—Harry D. Leinenweber, Judge.
____________
A RGUED J ULY 5, 2005—D ECIDED J ULY 29, 2005
____________
Before B AUER , P OSNER , and E ASTERBROOK , Circuit Judges.
P OSNER , Circuit Judge. The district judge granted sum-
mary judgment for the defendant in this suit charging racial
discrimination in employment in violation of federal law.
The plaintiff, Walker, who is black, is a National Accounts
Manager (i.e., a sales manager) in the Hospital Products
Division of Abbott Laboratories, the defendant. Walker was
at salary grade 18. Two new positions as NAMs in that
division opened up, but Abbott decided that someone
appointed to one of these positions could, if his or her
qualifications warranted, be given a salary grade of 20

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2 No. 04-3119
rather than 18 although the duties would be the same.
Walker wanted one of those jobs so that he could get the
higher salary, but instead both jobs went to other people,
one of whom was a white male named Smith. Walker
claims, first, that Smith was ineligible for the job because the
job posting stated that applicants must have a bachelor’s
degree, which Smith did not and so he must have been pre-
ferred for an invidious reason; and second, that Abbott’s
contention that Walker was ineligible for the job because he
already was a NAM is spurious.
Abbott’s position illustrates a tendency of some lawyers
to pile on arguments without worrying about their consis-
tency. On the one hand, Abbott argues that it was not
required to adhere to the terms of the job posting. On the
other hand, it argues that Walker was ineligible because
someone who was already a NAM could not apply for one
of the new positions even though they paid more. This
makes it seem that Abbott complies with its personnel rules
only when it wants to.
Indeed so. And there is nothing wrong with that. Unless
a rule is part of the company’s contract with its employees,
the company is free to create exceptions to it at will. Rules
by definition do not make a perfect fit with all the circum-
stances to which they apply; if they did, they would not be
rules, but standards. A rule abstracts from particular cir-
cumstances, and if one of the excluded circumstances is
salient in a particular case there is pressure to recognize an
exception. A well-managed company will not make excep-
tions to its personnel rules promiscuously because that will
generate ill will among the employees; they will feel they’re
being subjected to arbitrary treatment, which nobody likes.
Wilbert E. Scheer, Personnel Administration Handbook 314-15,
965-69 (3d ed. 1985); Lin Grensing-Pophal, Developing a
Personnel Manual 2 (1993); “HR101 Seminar: Consistency Is

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No. 04-3119 3
Key to Successful Human Resources Management,” Business
Voice Archives (Mar. 2002), www.njbia.org/ bvmar02.htm;
“Tackling Discrimination and Promoting Equality—Good
P r a c t i c e G u i d e f o r E m p l o y e r s , ” A C A S ,
http://www.acas.org.uk/publications/B16.html. But nei-
ther will a well-managed company adhere to its personnel
rules with a rigidity blind to circumstances that may make
the rule occasionally wholly inapt. “People in supervisory
positions are not doing their best for the company if they are
content to administer rules. Fairness, consistency, and
demonstrated interest in employee problems are the
backbone of supervisory morale building. . . . [N]o set of
written policies should become a straitjacket on manage-
ment thinking.” Scheer, supra, at 315, 965.
Smith had only an associate’s degree from college, but it
was a degree in medical technology and he had 20 years
of experience in the medical products industry. He was al-
ready at salary grade 19, supervising a sales team, and be-
fore being appointed a NAM was rated in the top one
percent of sales managers in the Health Products Division.
Walker, in contrast, though he indeed had a bachelor’s
degree (but had majored in political science rather than in
anything to do with business or the medical field), had been
working for Abbott for only six years and had not achieved
a rating comparable to Smith’s. He does not deny that his
all-round qualifications for a higher salary grade were
inferior to Smith’s.
Which should end the case right there. When the better-
qualified white worker is selected, and there is no evidence
indicating racial discrimination, the employer is entitled to
summary judgment. Malacara v. City of Madison, 224 F.3d
727, 730-31 (7th Cir. 2000); Mason v. Continental Illinois
National Bank, 704 F.2d 361, 364 (7th Cir. 1983) (“no rational
enterprise that has several qualified candidates for a posi-

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4 No. 04-3119
tion selects among them by lot; it picks the best qualified”).
A plaintiff cannot be permitted to manufacture a case
merely by showing that the employer does not follow its
employment rules with Prussian rigidity. Parker v. Baltimore
& Ohio R.R. Co., 641 F. Supp. 1227, 1234-35 (D.D.C. 1986);
see Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 287,
290 (2d Cir. 1999); Briggs v. Anderson, 796 F.2d 1009, 1024
(8th Cir. 1986); Dennis v. Columbia Colleton Medical Center,
Inc., 290 F.3d 639, 659-60 (4th Cir. 2002) (dissenting opinion).
For there is nothing to suggest discrimination in an em-
ployer’s bending the rules to give the better job or the
higher salary to the more qualified applicant. That is just
good management.
It was silly for Abbott to argue that Walker was forbidden
to apply for a grade 20 NAM position because he already
held a grade 18 position. But it is the silliness of overlaw-
yering rather than evidence of discrimination. Suppose
Walker had vastly superior qualifications, and when Smith
was hired for one of the new positions had gone to his boss
and said that he, Walker, should get a grade 20 position
because he was a star. In all likelihood, the boss would have
acceded to the demand, even if it meant bending the rules
in Walker’s favor, as it would if both grade 20 NAM
positions had been filled. The rules had already been bent in
his favor, when he had first become a NAM, because the
formal requirement is not just of a bachelor’s degree but of
a degree in business administration or a related field, and
Walker’s was not. Having gotten the benefit of flexible
administration of company rules, he should not be heard to
complain that a better-qualified worker also benefited from
that flexibility.
There is a further reason, unrelated to “qualifications” in
the normal sense, why the preferring of Smith gives rise to
no inference of discrimination. Walker was already a NAM,

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No. 04-3119 5
at grade 18; there was no need to pay him more in order to
retain him in that position. But to induce Smith to become
a NAM, the company had either to keep him at grade 19 or
to give him a raise. It would have made no business sense
to give Walker the 20 and order Smith to become a NAM at
a lower wage than he was receiving in his present job. Smith
would probably have quit.
The briefs dwell at length on the ubiquitous McDonnell-
Douglas formula for establishing a prima facie case of dis-
crimination and thus defeating summary judgment for the
defendant. The formula has its place but does not displace
the general standards for summary judgment. Borcky v.
Maytag Corp., 248 F.3d 691, 697 n. 6 (7th Cir. 2001); Chapman
v. AI Transport, 229 F.3d 1012, 1026 (11th Cir. 2000) (“the
summary judgment rule applies in job discrimination cases
just as in other cases”). One of those standards is that a
litigant is entitled to summary judgment if, should the case
go to trial on the record compiled in the summary judgment
proceedings, he would be entitled to judgment as a matter
of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51
(1986). This is such a case. No reasonable jury, confronting
this record, could infer that Smith got the grade 20 NAM
position because he is white. Mills v. Health Care Service
Corp., 171 F.3d 450, 459-60 (7th Cir. 1999); Briggs v. Anderson,
supra, 796 F.2d at 1024.
A FFIRMED .

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6 No. 04-3119
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-29-05

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