In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2886
LU ANN GELDON,
Plaintiff-Appellant,
v.
SOUTH MILWAUKEE SCHOOL DISTRICT,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-C-1048—Aaron E. Goodstein, Magistrate Judge.
____________
ARGUED JUNE 8, 2005—DECIDED JULY 13, 2005
____________
Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge. After failing in three attempts to
land custodial jobs with the South Milwaukee School
District, Lu Ann Geldon sued, claiming the School District’s
decision not to hire her was motivated, at least in part, by
her gender. The district court (Magistrate Aaron E.
Goodstein sitting by consent) granted the School District’s
motion for summary judgment on two of Geldon’s claims but
allowed the third to proceed to trial, where a jury found for
the School District. Geldon challenges the result of all three
claims.
2 No. 04-2886
Geldon began working for the School District in
June 1998, performing light cleaning duties as a building
service helper. Three years later, she applied for the posi-
tion of assistant painter/relief custodian. Although Geldon
was one of seven applicants selected to interview for the job,
she was not one of three called back for a second interview.
Around the same time, the School District began looking
for a long-term substitute custodian. During interviews for
the assistant painter/relief custodian position, applicants
were asked if they would be interested in the long-term
substitute position. Geldon says she was asked about the
substitute position during her interview but that interim
operations manager Don Amundson cut her off before she
could answer, saying that she would not be considered for
the job. The School District ended up hiring one of the
finalists for the assistant painter/relief custodian position
to fill the long-term substitute position. After missing out
on the two jobs, Geldon filed a sex discrimination complaint
with the Wisconsin Equal Rights Division and the Equal
Employment Opportunity Commission.
In the spring of the following year, Geldon applied for a
job as a permanent second-shift custodian but was not one
of 11 applicants selected to interview for the job. She filed
a second discrimination complaint with the Equal Rights
Division, alleging that the decision to pass her over for the
second-shift custodian position was based on her gender
and in retaliation for the discrimination claim she filed. The
EEOC granted Geldon right-to-sue letters on both of her
discrimination complaints, and Geldon sued, alleging
violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq.
On the claim related to the position of substitute custo-
dian, the district court found that Geldon had not exhausted
her administrative remedies before filing her complaint in
the district court and granted the School District’s motion
No. 04-2886 3
for summary judgment. The district court also granted the
School District’s motion for summary judgment on the
claims related to the second-shift custodian position, finding
that Geldon failed to present sufficient evidence. But on
Geldon’s claim concerning the assistant painter/relief
custodian job, the district court found enough evidence to
send the case to a jury, pointing to the statements of Larry
Barber, a member of the custodial bargaining unit who was
on the interview committee for the job. According to affi-
davits submitted by Geldon, Barber told School District
custodians, “What is the matter with you, we don’t want a
woman working here,” and “Come on Tom, do you really
want to work with a woman?”
After a 4-day trial, a jury found that the School District
did not discriminate against Geldon. In her appeal, Geldon
argues that the district court erred in granting the School
District’s motion for summary judgment on the claim re-
lated to the substitute custodian position. She argues that
the granting of that motion also led to the grant of sum-
mary judgment on claims related to the second-shift custo-
dian position and that these decisions hurt her chances of
success at the subsequent trial.
We review the district court’s grant of summary judgment
de novo, viewing all facts and drawing all reasonable infer-
ences in a light most favorable to Geldon. Williams v. Waste
Mgt. of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). Summary
judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
Because all of her arguments on appeal arise out of the
district court’s grant of summary judgment on Geldon’s
claim concerning the substitute custodian position, we begin
4 No. 04-2886
there. The district court found that Geldon failed to include
a complaint about the substitute custodian position in her
filings with the Equal Rights Division and EEOC. Thus, it
found, she failed to exhaust her administrative options. See
Ester v. Principi, 250 F.3d 1068, 1071 (7th Cir. 2001).1
A Title VII plaintiff may bring only those claims that were
included in her EEOC charge, or that are “like or reason-
ably related to the allegations of the charge and growing out
of such allegations.” McKenzie v. Ill. Dep’t of Transp., 92
F.3d 473, 481 (7th Cir. 1996) (quoting Jenkins v. Blue Cross
Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976)); see
also Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520 (7th
Cir. 2003). The rule is meant both to give the EEOC and
employer an opportunity to settle the dispute and to give
the employer fair notice of the conduct about which the
employee is complaining. See Haugerud v. Amery School
Dist., 259 F.3d 678, 689 (7th Cir. 2001).
This case is close because an EEOC investigation of
Geldon’s complaint about the assistant painter/relief cus-
todian position might have turned up the fact that she was
also interested in, but ultimately not hired for, the substi-
tute custodian position. Thus, in one sense, the complaint
about the substitute custodian position was “like or reason-
ably related” to the complaint about the assistant painter/
1
Geldon claims this argument was not properly before the
district court because the School District did not raise it until its
reply brief in support of its motion for summary judgment. The
School District questions the sufficiency of Geldon’s pleading on
her claim based on the substitute custodian position, and rightly
claims it was not clear that Geldon was challenging the hiring
decision on the substitute custodian position until her brief in
opposition to the School District’s summary judgment motion. The
School District raised the issue of whether Geldon had exhausted
her administrative options in its next filing, so it did not waive the
argument.
No. 04-2886 5
relief custodian—they involved similar positions offered
around the same time, with decisions made by the same
hiring officials.
Still, the district court was correct to grant the School
District’s motion because her initial complaint did not put
the agencies or the School District on notice that she also
was complaining about the substitute custodian position. In
her initial charge, Geldon spelled out in great detail the
circumstances surrounding her application for the assistant
painter/relief custodian position, concluding that “I feel that
I was not considered for this position because of my sex
even though I am qualified for the position.” Geldon would
not have to have done a lot to put the EEOC and School
District on notice that she also thought she was not consid-
ered for the substitute custodian position because of her
sex. She could have gotten the point across by adding just
a few words or even by simply writing that she felt she was
not considered for “these positions” even though she was
qualified for “the positions.” Instead, she filed her charge
complaining solely about the assistant painter/relief custo-
dian position, even though she had also recently been
denied the substitute custodian job. As a result, someone
looking at the charge who knew that she had also sought
the substitute custodian position likely would have inferred
that Geldon did not mention the substitute custodian
position because she did not think the decision not to hire
her for that position was motivated by her gender. There-
fore, the EEOC and School District were not put on proper
notice with respect to Geldon’s complaint about the substi-
tute custodian position, and the district court did not err.
Geldon next argues that the grant of summary judgment
on the substitute custodian position prejudiced the trial on
the assistant painter/relief custodian position. Specifically,
she claims that introducing evidence that she was not
seriously considered for the substitute custodian position
6 No. 04-2886
would have helped her create “a convincing mosaic of dis-
crimination.” Troupe v. May Dep’t Stores Co., 20 F.3d 734,
737 (7th Cir. 1994).
Of course, the fact that we determined that the district
court did not err in granting summary judgment on the
substitute custodian position takes the paddle away from
Geldon, but it is worth noting that she was already too far
up the proverbial creek for it to matter. That’s because the
district court’s decision to grant summary judgment on the
substitute custodian position should have had absolutely no
effect on the evidence Geldon was allowed to bring in at
trial. If evidence about the substitute custodian position
was relevant to questions raised about the assistant pain-
ter/relief custodian position (assuming it met the require-
ments of the Rules of Evidence), Geldon should have been
able to present that evidence at trial, whether or not her
claim regarding the substitute custodian position was a
part of the trial. To the extent that Geldon thought some
relevant evidence was excluded, she was free to appeal any
evidentiary decision. Otherwise, she merely is lamenting
the fact that she could not bring in evidence to confuse the
jury. In any event, there is no merit to her claim that the
trial on the assistant painter/relief custodian position was
tainted because of the district court’s grant of summary
judgment on the substitute custodian position.
Geldon also argues that the district court erred in grant-
ing the School District’s motion for summary judgment on
the claim related to the second-shift custodian position.
That claim, however, also is based on her contention that
the district court wrongly granted the School District’s
motion on the claim related to the assistant painter/relief
custodian position and therefore is also without merit. Ac-
cordingly, the judgment of the district court is AFFIRMED.
No. 04-2886 7
CUDAHY, Circuit Judge, concurring in the judgment: I
concur in the affirmance of the denial of the substitute
custodian claim, because any evidence of discrimination as
to this claim was the same as the evidence on the assistant
painter/relief custodian claim, which was rejected by the
jury. Therefore, any error in granting summary judgment
with respect to the substitute custodian claim was harm-
less.
I do not agree, however, that there was a failure to ex-
haust administrative remedies with respect to the substi-
tute custodian claim. The majority opinion argues that the
omission of this claim in Geldon’s EEOC complaint deprived
the EEOC and South Milwaukee of proper notice that the
claim in question would be subject to litigation. But the test
for exhaustion purposes is whether the substitute custodian
claim was like or reasonably related to the assistant
painter/relief custodian claim. See Cheek v. Western and
Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). If
ever there was a reasonable relation, there was one here,
since both claims are based on the same evidence of dis-
criminatory animus. The alleged discriminatory conduct
occurred during the same interview process and implicated
the same hiring officials. In addition, the details of the sub-
stitute custodian claim were actually presented at the trial
of the other claim. This is an abundant showing of a rea-
sonable relationship, and to hold otherwise is to elevate
form over substance.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-13-05