In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3840
ROCHESTER HOLMES,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster General,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Indiana, Hammond Division.
No. 99 C 219—James T. Moody, Judge.
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ARGUED JUNE 9, 2004—DECIDED SEPTEMBER 14, 2004
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Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Rochester
Holmes filed an action in the district court claiming dis-
crimination, retaliation and breach of a settlement agree-
ment. The district court disposed of the discrimination and
retaliation claims though the entry of summary judgment
against Holmes. A bench trial on the breach of a settlement
agreement ended in favor of the Defendant. Holmes ap-
peals.
2 No. 03-3840
I. Background
Plaintiff-Appellant Rochester Holmes began working for
the United States Postal Service (“U.S.P.S.”) in 1974. In
1984, Holmes was transferred to Saint Paul, Minnesota to
serve as Superintendent, Building Maintenance, EAS-17.1
About two years after his transfer, Holmes’ job was affected
by a reorganization. He was then promoted to serve as a
Maintenance Programs Specialist, EAS-19. In 1989,
Holmes’ job was again affected by a consolidation of the
Twin Cities postal services. Shortly thereafter, Holmes was
“detailed”2 to an EAS-17 position as General Supervisor,
Vehicle Operations as a “result of non-competitive placement
consideration authorized in [management instructions].” A
few days after the detail assignment, Holmes received a
letter that said, “[on] October 21, 1989 [Holmes would] be
placed non-competitively in the vacant EAS-17, General
Supervisor, Vehicle Operations assignment” with a saved
grade of EAS-19. Holmes did not apply for, or express interest
in the position of General Supervisor, Vehicle Operations.
While serving in the EAS-17, General Supervisor, Vehicle
Operations position, Holmes applied for a vacant position as
Manager, Vehicle Services, EAS-21. When he learned that
he had not been selected for the position, Holmes filed an
Equal Employment Opportunity Commission (“EEOC”)
charge claiming discrimination.
Beginning sometime in 1991, Holmes took sick leave.
While on sick leave, he received a letter informing him that
1
A U.S.P.S. employee’s salary and duties are governed by a sche-
dule of numbered grade levels. For salaried management em-
ployees, the schedule is called the “Executive and Administration
Schedule.” In U.S.P.S. parlance, EAS-16 means that the position
is at grade 16 of the Executive and Administration Schedule with
salary and duties that correspond to that grade.
2
When an employee is “detailed” they have been temporarily as-
signed to a position.
No. 03-3840 3
he had been noncompetitively selected for an EAS-19
Maintenance Programs Specialist. As Holmes retained a
saved grade of EAS-19, he was given noncompetitive con-
sideration “in compliance with the Twin Cities Division
Instruction regarding the Intervening Grade Policy.” Holmes
had not applied for, or expressed interest in this position.
Afer using up all of his sick leave, Holmes went on leave
without pay until he was terminated from the U.S.P.S. in
1992. This termination was challenged in a civil suit. That
suit ultimately resulted in a settlement agreement which
stated, “Plaintiff’s claims arose out of allegations of discrim-
ination under Title VII of the Civil Rights Act of 1964.” The
settlement agreement also provided that Holmes was to be
placed as an EAS-17 Supervisor, Maintenance Operations
in Gary, Indiana. Despite his placement in an EAS-17
position, he was given a saved grade of 20.
After placement in Gary, Holmes expected to be solicited
for positions at or below his saved grade without expressing
interest or applying for those positions. However, despite
vacancies in various positions at or below his saved grade,
Holmes was never approached about reassignment.
A vacancy in an EAS-21 Manager, Vehicle Maintenance
position was posted on April 30, 1996 and again on July 9,
1996. Holmes responded to the second posting and applied
for the job on July 22, 1996. A three-member Review
Committee was selected and they reviewed the applications.
The Committee members discussed applications in a phone
call but did not interview the applicants. The Committee
ultimately selected three of the applicants as finalists for
the selecting official, Veronica Thompson, Manager,
Operations Support, to consider. Holmes was not selected
as one of the finalists and obviously was not selected to fill
the vacancy.
As an aside worth noting at this point, Thompson testified
at trial about her experiences in Greenbelt, Maryland prior to
4 No. 03-3840
transferring to Illinois. She testified that she was serving in
an EAS-21 position with a saved grade of 23 when she was
asked if she wanted a detail as Postmaster. She was
subsequently asked if she wanted to retain that position on
a permanent basis. She was assigned to these positions
noncompetitively before they were posted.
Holmes brought this suit in 1999 claiming race and age
discrimination, retaliation for complaining of discrimination
and breach of the 1994 settlement agreement. The discrimi-
nation and retaliation claims were disposed of when the
district court granted the Defendant’s motion for summary
judgment. The U.S.P.S. filed a motion to strike Holmes’ jury
demand for the trial on the remaining claim for breach of
the settlement agreement. The district court granted
Defendant’s motion and after the trial, entered judgment in
favor of the U.S.P.S. Holmes appeals.
II. Discussion
A. Breach of 1994 Settlement Agreement
Holmes claims that the trial court erred in its interpreta-
tion of the term “saved grade” as used in the October 1994
settlement agreement. Holmes contends that “saved grade”
means that he was entitled to be selected for a position
noncompetitively and without applying for, or expressing
interest in, the position. We review the trial court’s findings
of fact for clear error and conclusions of law de novo.
In arriving at its conclusions as to the meaning of “non-
competitive selection,” and therefore, the meaning of “saved
grade,” the trial court examined what it called the plain-
tiff’s “three avenues of proof.” These avenues consisted of
Veronica Thompson’s testimony, U.S.P.S. policies during
the 1980s and early 1990s in and around The Twin Cities,
and two U.S.P.S. personnel documents. In this appeal,
No. 03-3840 5
Holmes attacks the reasoning and findings of the trial court
as it relates to these three “avenues of proof.” We address
each in turn.
Beginning with Thompson’s testimony, the trial court
found that her experiences in being solicited for vacant posi-
tions, without expressing interest in such positions, were
due to factors other than her saved grade status. The court
noted that these solicitations happened after reorganiza-
tions of the U.S.P.S. had abolished her job or when she was
already performing the job on a temporary basis. These
findings are not clearly erroneous and are well-supported by
the evidence.
Holmes quotes various passages from Thompson’s testi-
mony to refute the findings of the district court. However,
the testimony does show that Thompson was solicited for
jobs for reasons other than her saved grade status, e.g.,
reorganizations and being asked to permanently fill a job to
which she was already detailed. Nevertheless, there is one
portion of Thompson’s testimony which warrants individual
attention.
When Thompson was asked if she had always applied for
her positions, she responded, “I’ve always applied by my
performance or meeting with the manager to express a
move. I’ve always had to do that.” Holmes says that “by my
performance” should be interpreted to mean “that her prior
performance helped bring her to the attention of officials
who then contacted her.” We agree that this is a reasonable
reading of her testimony but are unsure how this helps
Holmes. It is likely that this phrase “by my performance”
relates to her being retained permanently for a position to
which she had already been detailed. Furthermore, there is
no dispute that Thompson had been solicited for positions
and that she did not initiate such solicitations. The dispute
is why she was solicited and this testimony does not
contradict the findings of the district court.
6 No. 03-3840
The next “avenue of proof” offered by the plaintiff, and
ruled on by the district court, concerns the experiences of
Holmes himself during his time in the Twin Cities and var-
ious documents outlining U.S.P.S. policies for that geo-
graphical location and period of time. In this situation, like
Thompson’s, Holmes’ position was affected by a reorganiza-
tion. Shortly after the reorganization, Holmes’ was solicited
for a position without expressing interest and was placed in
that position without applying for it. He claims that this
experience informed his understanding of the term “saved
grade” as used in the settlement agreement. The problem
with Holmes’ argument is that it relies upon an unreason-
able reading of the documents outlining U.S.P.S. policy.
The submitted documents pertain to the “Placement
Policies as a Result of the System-wide MSC [management
sectional center] Consolidations Effective September 23,
1989.” In other words, as the district court noted, the docu-
ments relate to a specific context, they have no relevance
outside of the reorganization and they should not be used to
inform the interpretation of the parties’ settlement agreement.
Holmes claims, “[t]his determination might be relevant if
Holmes was suing to enforce U.S.P.S. policies, but he is not.
The significance of U.S.P.S. policies is that they inform the
meaning of a term or art, saved grade, used in the 1994
[settlement] Agreement.” While this may be true, it does
not change the fact that the policies evidenced by the docu-
ments clearly relate to “special policies and procedures that
govern the placement of career nonbargaining unit employ-
ees as a result of the system-wide management sectional
center consolidations effective September 23, 1989.” (emphasis
added). Therefore, even if Holmes’ experiences led him to
believe that he did not have to apply for positions because
of his saved grade status, the documents show that his
belief was mistaken. The use of ordinary care in reading
through the policies implemented during the Minnesota
reorganization would have disabused Holmes of the notion
No. 03-3840 7
that these policies had any relevance outside of the reorg-
anization context. Finally, he offers no credible evidence
that the U.S.P.S. shared his erroneous understanding of the
term saved grade. The evidence offered by Holmes falls far
short of proving that the term saved grade means that he
was entitled to noncompetitive placement without applica-
tion outside of the reorganization context.
The third and final “avenue of proof” discussed by the
district court related to two U.S.P.S. personnel documents.
The court disregarded the first as Holmes offered no proof
that it was in effect at the time the settlement was exe-
cuted. So, we look to the second personnel document to il-
luminate the parties’ understanding of the term saved
grade.
This second personnel document is a provision of the
Executive and Administrative Schedule Selection Policy,
dated December 7, 1993. It reads as follows:
Management should consider noncompetitive applica-
tions for voluntary reassignment or change to lower
level before the competitive announcement process be-
gins, during the process, or after the competitive appli-
cations have been assessed. Individuals with saved
grade must be considered noncompetitively for positions
up to the grade of their former positions or at any
intervening grade.
Holmes reads the provision as providing for two distinct
categories of employees eligible for noncompetitive place-
ment: “1) any EAS employee who applies for ‘voluntary
reassignment or change to lower level,’ at any time before
or during the competitive process or after the competitive
applications have been assessed; and 2) individuals with
saved grade who, unlike the first category, ‘must be con-
sidered noncompetitively,’ without application, for certain
positions.” The district court disagreed with that reading.
Instead, the district court found that the first sentence is
8 No. 03-3840
broadly inclusive and that the second sentence, a sub-part
of the first, merely reminds hiring officials that employees
with saved grade must receive noncompetitive consideration
when moving to a position at or below their saved grade.
This is so, explained the judge, because an employee with
saved grade who moves to any position at or below their
saved grade makes a lateral reassignment since reassign-
ment would not affect the employee’s saved grade. The
district court’s reading is well-supported by testimonial
evidence; Holmes’ reading is not similarly supported.
Holmes argues that the testimony supporting the district
court’s reading of the policy provision is “not credible be-
cause it is self-serving without supporting examples, it is
inconsistent with the personal experience of Mr. Holmes
while in the Twin Cities and the experience of Ms. Thompson
while in Maryland, and it is not supported by the language
used in U.S.P.S. policies.” First, we will not reexamine cre-
dibility determinations of the district court. United States
v. Dillon, 150 F.3d 754, 758 (7th Cir. 1998). Second, Holmes’
and Thompson’s experiences in the Twin Cities and Mary-
land were the result of factors other than their saved grade,
as already noted above. Finally, it is clear that it is Holmes’
understanding of the term saved grade that is not sup-
ported by the language used in U.S.P.S. policies and not the
other way around. The district court did not err.
B. Discrimination Claim
Holmes’ next argument is that the district court erred
when it granted Defendant’s motion for summary judgment
on Holmes’ claims of discrimination and retaliation.
Because Holmes had no direct evidence of discrimination,
he advanced his discrimination claims under the indirect or
burden-shifting method. However, the parties do not
contend that Holmes failed to make a prima facie showing
of discrimination or retaliation; they focus their arguments
No. 03-3840 9
on pretext which may be proved by showing that the Defen-
dant’s explanation has no basis in fact, that the explanation
is not the real reason for the adverse action, or that the
stated reason is insufficient to warrant the adverse action.
Hughes v. Brown, 20 F.3d 745, 747 (7th Cir. 1994). We
review a district court’s summary judgment determination
de novo and construe the facts in the light most favorable
to the non-movant. Gordon v. United Airlines, Inc., 246 F.3d
878, 885 (7th Cir. 2001).
The Defendant stated that the three candidates were
selected as finalists by the Review Committee because those
individuals were better qualified than the other applicants.
The litmus test used by the Review Committee was current
knowledge and recent experience in the position being
offered or related jobs. Holmes attempts to show that this
“litmus test” is a pretext for discrimination by pointing to
four different sets of facts.
Holmes claims that pretext is shown because current ex-
perience in vehicle maintenance was not posted as a require-
ment for filling the position in question. However, as the
district court noted, the posting would state the minimum
qualifications so as to create a larger pool of minimally
qualified applicants. The fact that the Review Committee
ultimately relied upon factors not mentioned by the vacancy
posting does not show discrimination. Nor does the fact that
the vacancy announcement was posted twice show discrimi-
nation.
Holmes suggests that the reason the vacancy was posted
twice is because “the selecting official was not impressed
with the applicants responding to the first posting, includ-
ing [the two finalists who were ultimately chosen from the
first posting].” There is no evidence that this was the case.
Deposition testimony revealed that a position may be posted
a second time because there were too few responses the first
time. Furthermore, if the second posting did not result in a
10 No. 03-3840
group of applicants more qualified than the first posting, it
would not be unusual to hire from the first posting. So, we
do not know why the job was posted twice.
Next, Holmes points to a black applicant who was serving
as Supervisor, Vehicle Supplies and had served six details
as Manager Vehicle Maintenance as a qualified applicant
who was not selected. This proves nothing; it is undisputed
that Holmes did not have current experience in managing
vehicle maintenance or an auxiliary vehicle maintenance facil-
ity. Furthermore, he had significantly less experience than
the three finalists.
Holmes asked two Postal Service officials with whom he
is acquainted to compare his qualifications to those of the
three finalists selected by the Committee. Those officials
believed that Holmes was highly qualified for the position.
However, “[w]e do not sit as a superpersonnel department
that reexamines an entity’s business decision and reviews
the propriety of that decision. Our only concern is whether
the legitimate reason provided by the employer is in fact
that true one.” Stewart v. Henderson, 207 F.3d 374, 378 (7th
Cir. 2000) (citation removed). The evidence fails to show
pretext because, as the district court said, “it does not es-
tablish that Holmes was so clearly superior to the finalists
chosen that no reasonable person exercising impartial judg-
ment could have made the same decision that the review
committee did.” Citing Millbrook v. IBP, Inc., 280 F.3d
1169, 1180-81 (7th Cir. 2002).
Holmes’ next argument centers around the fact that there
were eight black applicants, one Hispanic applicant, and
four white applicants. The three ultimately selected as
finalists were white. The remaining white applicant had
prior EEOC activity. Holmes offers this statistical evidence as
relevant—but not dispositive—in light of other evidence
showing pretext, for statistical evidence alone is insufficient
to show disparate treatment. See Kidd v. Illinois State
No. 03-3840 11
Police, 167 F.3d 1084, 1101 n. 16 (7th Cir. 1999); Kadas v.
M.C.I. Systemhouse Corp., 255 F.3d 359, 363 (7th Cir.
2001). But without other evidence of pretext, this evidence
is irrelevant.
Finally, it is worth noting that two of the Review Committee
members expressly stated that they did not know Holmes’
race and were not aware of any prior EEOC activity. The
third Committee member, a black male over the age of for-
ty, stated, “I deny I discriminated against [Holmes] based
on his race, age, or any other non-meritorious reason. I did
not and still do not know Mr. Holmes.” He also stated that
he was unaware of any prior EEOC activity as it related to
Holmes. Usually, an employer’s lack of knowledge about a
protected category rings a death knell for discrimination
claims. Clark County School Dist. v. Breeden, 532 U.S. 268,
273 (2001) (“[T]here is no indication that [the employer]
even knew about the [protected activity] when [an adverse
action took place]”). However, under our standard of review,
we do not assume that the third Review Committee member
was unaware of Holmes’ protected status. Nevertheless, the
facts presented clearly support the granting of summary
judgment.
C. Right to Trial by Jury
Holmes claims that the district court erred in striking his
jury demand on the breach of contract claim. This argument
is meritless. The Seventh Amendment’s right to a jury trial
does not apply to suits against the federal government.
Lehman v. Nakshian, 453 U.S. 156, 160 (1981). And when
the government has waived its sovereign immunity, “a
plaintiff has a right to a jury trial only where that right is
one of the terms of the [government’s] consent to be sued.”
Bowden v. United States, 176 F.3d 552, 555 (D.C. Cir. 1999);
Lehman, 453 U.S. at 160. 42 U.S.C. § 1981a states, “[i]n an
action . . . against a respondent who engaged in unlawful
12 No. 03-3840
intentional discrimination . . . the complaining party . . .
may demand a trial by jury.” The district court, relying on
Bowden, held that Holmes’ claim of breach of contract did
not require proof of “intentional discrimination” and there-
fore, he was not entitled to a trial by jury. Holmes requests
that we not follow our sister circuit’s reasoning in Bowden.
We decline to accept his invitation and instead, adopt the
reasoning of Bowden on this issue.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-14-04