In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3559
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
TARGET CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 0146—Rudolph T. Randa, Chief Judge.
____________
ARGUED SEPTEMBER 20, 2005—DECIDED AUGUST 23, 2006
____________
Before CUDAHY, KANNE, and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. The Equal Employment and
Opportunity Commission (EEOC) filed a Complaint against
Target Corporation (Target) in the district court
on February 8, 2002. The EEOC charged that Target
violated Title VII of the Civil Rights Act of 1964 (The Act),
42 U.S.C. § 2000e et seq., by engaging in race discrimination
against African-American applicants for managerial
positions. The EEOC also alleged that Target violated the
Act when it failed to make and preserve records relevant to
the determination whether unlawful employment practices
had been, or were being, committed. On July 1, 2003, both
parties brought motions for summary judgment. On August
2 No. 04-3559
2, 2004, the district court denied the EEOC’s motion,
granted Target’s motion in its entirety, and dismissed the
action. The EEOC now appeals. We reverse and remand for
further proceedings.
I. Background
A. Target’s Structure
Target Corporation is headquartered in Minneapolis,
Minnesota. One of its retail divisions is Target, a discount
chain of more than 1,100 stores nationwide. Target orga-
nizes its operations by Groups, and the Groups are divided
into districts. This case involves District 110 in Group 192.
Group 192 is made up of Target Districts in several south-
ern Wisconsin and northern Illinois counties. District 110
is made up of stores in the Madison, Milwaukee, and
Waukesha, Wisconsin metropolitan areas.
Each district is managed by a District Team Leader, and
each store is managed by a Store Team Leader (STL), who
is assisted by Executive Team Leaders (ETLs). Each ETL is
responsible for a different area of store operation. Most
stores have the following ETLs: a Guest Services ETL, who
manages the front end of the store, including cashiers and
returns; a Hardlines ETL, who manages the dry goods
section of the store; a Softlines ETL, who manages the
clothing and jewelry section of the store; a Team Relations
ETL, who manages the store’s human resources functions;
and a Logistics ETL, who manages the stockroom of the
store.
B. Hiring Process for ETLs
In the first step of the ETL hiring process, Target pre-
screens applicants to determine if they meet the minimum
qualifications for the position. Target does not specify the
No. 04-3559 3
credentials an applicant must have to pass the pre-screen-
ing, but factors such as education, professional experience
and retail-related experience are considered. Target also
generally requires that an applicant have either a college
degree or significant management experience. If the
recruiter determines that an applicant meets Target’s
minimum standards for an ETL position, the recruiter
will contact the applicant to schedule an initial interview.
This interview is usually conducted by telephone, but
may take place at a Target store. During this interview,
each applicant is asked the same or similar questions,
which are designed to determine if the applicant meets
the minimum standards for an ETL position.
Before February of 2001, applicants who performed
well in the initial interview were invited to attend an
“ELITE” interview. The ELITE interview procedure had two
parts: first, a written test called a PDI, and second, three
rounds of one-on-one personal interviews. Target restruc-
tured this procedure in 2001.
The PDI is a standardized multiple-choice test that is
used to evaluate the leadership ability of applicants. Target
does not look at the actual score an applicant receives, but
instead assigns the applicant a color code, which indicates
a range in which the applicant scored. A green score
indicates that the applicant scored well, a yellow score
indicates an applicant obtained a satisfactory score and a
red score indicates an applicant scored poorly. Target
claims that a green or yellow score is a prerequisite for an
applicant’s hiring, but such a score does not guarantee
employment.
An applicant’s performance in the interview round is
weighted more heavily than the PDI test performance.
During the ELITE interview round, Target executives
perform one-on-one interviews with applicants. The execu-
tives use an interview guide which contains questions that
4 No. 04-3559
are designed to evaluate the applicants’ leadership abilities.
All applicants are asked the same questions. The appli-
cants’ answers are scored using set guidelines. The inter-
viewers then assign a total score for each applicant.
After the one-on-one interviews are completed, the
interviewers have a consensus meeting to discuss all
applicants. Target claims that the total scores of the
applicants are used only as a guide in hiring and that
applicant’s scores are not directly compared. Thus, the
interviewers may choose to hire an applicant who had a
total score that was lower than another applicant not
chosen.
C. Individual Claims—Charging Parties
This case involves a group of individuals who claim that
they were not hired in Target’s ETL hiring process because
of their race. First, in early 2000, James Daniels, Jr., an
African-American, applied to Target for an ETL position
in District 110. He interviewed for an ETL position on
March 13, 2000. Daniels did very well on his PDI test,
scoring higher than ninety-seven percent of the candidate
norm group. Target did not hire Daniels. Target claimed he
did not meet the requirements for an ETL position based on
his ELITE interview, but did not produce the ELITE
interview forms for Daniels and did not explain how he
failed to meet those requirements.
The claims of the three other individuals in this case,
Kalisha White, Ralpheal Edgeston and Cherise Brown-
Easley involve their contact with STL Matthew Armiger.
Before February of 2001, District 110 had a district re-
cruiter. When the district recruiter position was eliminated,
STL Richard Walters, who was temporarily assigned
recruiting duties, asked fellow STL Armiger for help with
those duties. At that time, Armiger was managing a newly-
opened and short-staffed Target store in New Berlin,
No. 04-3559 5
Wisconsin. Walters and Armiger initially shared the
recruiting duties equally, but later Armiger’s duties were
scaled back. Armiger testified that he believed his recruit-
ing duties were secondary to his management of the store.
1. Kalisha White
Kalisha White, an African-American who attended
Marquette University, emailed Target her resume for an
ETL position on February 20, 2001, while she was still a
student at Marquette. White’s resume indicated that
she was a member of Alpha Kappa Alpha, an African-
American sorority. Armiger e-mailed White and asked her
to call to set up an interview. White called at least twice,
but each time she spoke with Armiger he said he was too
busy to schedule an interview.
White became suspicious of Armiger and decided to
conduct an experiment to determine if he had discriminated
against her because of her race. Thus, on May 9, 2001, she
submitted a resume to Armiger under a fictitious name,
“Sarah Brucker.” White used her own telephone number,
and gave Brucker a Brookfield, Wisconsin, address. She
believed the address was located in a predominantly
Caucasian neighborhood. Armiger testified that White had
a stronger resume than Brucker because White was pursu-
ing an MBA degree, while Brucker was not. On May 10,
2001, Armiger emailed and called Brucker, asking her to
return his call. White had a Caucasian acquaintance call
Armiger and pretend to be Sarah Brucker. Armiger sched-
uled an interview with Brucker during their conversation.
White testified that she called Armiger soon after Brucker’s
conversation with him, but he said that he was too busy to
schedule an interview with her.
6 No. 04-3559
2. Ralpheal Edgeston
Ralpheal Edgeston received an email from Armiger on
March 2, 2001, in which Armiger asked her to call and
schedule an interview. Edgeston, an African-American
student at Marquette University, had submitted her resume
to Target for an ETL position at a multicultural job fair
held at the University of Wisconsin-Milwaukee in the
previous month. Edgeston’s resume indicated that one
of her college majors was African-American studies and,
like Kalisha White’s resume, that she was a member of the
Alpha Kappa Alpha sorority, which Armiger testified to
knowing was an African-American sorority. Additionally,
her resume listed that she was a member of the National
Association for the Advancement of Colored People
(NAACP). Edgeston called Armiger and scheduled a phone
interview for March 4, 2001; however, Armiger did not
call Edgeston at the appointed time and did not return
her calls after that date. Target never scheduled another
interview with Edgeston.
3. Cherise Brown-Easley
Class member Cherise Brown-Easley, an African-Ameri-
can, also submitted her resume to Target at the Univer-
sity of Wisconsin-Milwaukee multicultural job fair in
February 2001. Brown-Easley’s resume indicated that
she was a member of the “Metropolitan Alliance of Black
School Educators.” Brown-Easley received an email from
Armiger requesting that she call Armiger to schedule
an interview. She called Armiger and scheduled an inter-
view for March 4, 2001. Armiger did not contact Brown-
Easley at the appointed time. Instead, Brown-Easley called
Armiger a half hour after the interview time, and after
being informed that he had left for the day, she left a
message for him. The following day, she left another
message for Armiger, but she never heard back from him.
No. 04-3559 7
During the week that Armiger failed to contact Edgeston
and Brown-Easley, he was scheduled to interview nine ETL
applicants. In addition to Edgeston and Brown-Easley,
Armiger also failed to contact two Caucasian applicants.
However, Target later interviewed at least one of the two
Caucasian applicants, but Edgeston and Brown-Easley were
never interviewed.
Armiger testified that he did not know the race of
White, Edgeston, or Brown-Easley during the recruiting
process. Armiger could not recall reviewing White or Brown-
Easley’s resumes. He also claimed he did not study
Edgeston’s resume closely enough to determine her race.
D. Target’s Record Retention
Also at issue in this appeal is Target’s practice of employ-
ment record retention. During the spring of 2001, Store
Team Leader Walters estimated that he received
200 resumes for ETL positions, and that Armiger re-
viewed thirty percent of them, or about sixty resumes. In
the fall, slightly fewer resumes were submitted, and in
other months, about ten to twenty-five resumes were
submitted each month. Armiger admitted to throwing out
the resumes of applicants he deemed unqualified, including
those of White, Edgeston and Brown-Easley, rather than
retaining them as required by law and by Target’s docu-
ment retention policy. Armiger claims he threw out the
resumes to protect the applicants’ privacy.
In an effort to comply with the EEOC’s document reten-
tion requirement, Target currently uses Brass Ring, a
nationwide employment recruitment website, to store
applicant documents, including: copies of applicants’
resumes, applicants’ PDI test results and completed ELITE
interview forms. Target recruiters who receive the resumes
submit them to Brass Ring and make copies of the resumes
of the candidates they plan to interview. The Brass Ring
8 No. 04-3559
system does not store information regarding the district
where the applicant applied or whether the position applied
for was an ETL position.
Target also has several policies to ensure that job applica-
tions and related documents are retained for the required
time. Target uses its corporate intranet and email messages
to share its record retention policies with STLs. The human
resource managers meet biannually to audit each Target
store, to conduct training and to remind employees of the
record retention policy. The human resource managers
instruct on-campus recruiters to retain all resumes, applica-
tions and interview guides and notes, and to route the
documents to the national headquarters. Finally, the ETL
for Team Relations is responsible for ensuring that the
record keeping policy is being followed at each Target store.
The success of Target’s record retention program through
Brass Ring has been disputed. There is some indication that
all employees are not following the program. As discussed
above, STL Armiger threw out resumes that he should have
retained. Additionally, Virginia Schomisch, the District
Team Leader’s administrative assistant, testified in June of
2003 that she does not send applicant documents to Brass
Ring, but instead she retains them herself for the required
time. According to Target, the recruiters who send docu-
ments to Schomisch also send them to Brass Ring. While
Target’s policy does not include a provision to ensure that
relevant documents are retained from the time a discrimi-
nation charge is filed until that case is fully concluded,
Target claims to address this requirement on a case by case
basis, notifying employees to retain documents when a
charge arises.
E. The EEOC’s Investigation
On May 11, 2001, White and Edgeston filed EEOC
discrimination charges against Target. White alleged that
No. 04-3559 9
Target had discriminated against her and black applicants
as a class by not considering them for ETL positions.
Edgeston’s charge alleged that Target had discriminated
against her because of her race.
The EEOC investigated the applicants’ claims against
Target. The EEOC issued a letter of determination for
White and Edgeston’s charges on September 13, 2001,
finding reasonable cause to believe Target had discrimi-
nated against the applicants on the basis of their race. The
EEOC also issued a letter of determination for a charge
filed by Keith Stanley on January 8, 2001. Stanley’s claim
is not at issue in this appeal. The EEOC alleged that Target
discriminated against the African-American applicants
based on their race by refusing to hire them for ETL
positions in District 110 since March 14, 2000.
The EEOC also alleged that since at least March 14, 2000,
Target has violated Section 709(c) of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-8(c), by failing to
make and preserve records relevant to the determination of
whether Target is or has engaged in unlawful employment
practices.
The EEOC attempted to facilitate a conciliation between
Target and the applicants, but after four months of negotia-
tions, they were unable to reach an agreement. The EEOC
then filed its complaint in this lawsuit.
F. District Court’s Action & Findings
At the district court, Target moved for summary judgment
on the EEOC’s complaint. The EEOC moved for partial
summary judgment on its records retention violation claim
and on the other affirmative defenses that Target asserted.
The district court issued its Decision and Order on August
2, 2004. The court denied the EEOC’s motion for partial
10 No. 04-3559
summary judgment on its records retention violation claim
and granted Target’s motion for summary judgment on this
issue. The court found that Target’s new Brass Ring
program complied with the law, so an injunction (which the
court noted was the only available remedy for such a claim)
was unnecessary. The court also held that, although Target
could not produce the recruitment records, the EEOC was
not entitled to an inference that the documents would have
contained information adverse to Target’s case because the
EEOC did not present evidence that Target employees
disposed of the documents in bad faith.
The court granted Target’s motion for summary judgment
on the EEOC’s Title VII disparate treatment claims, and
denied the EEOC’s motion on these claims. The court found
that Armiger’s failure to respond to applicants White,
Edgeston and Brown-Easley was explained by the fact that
he was busy managing his store. Therefore, according to the
court, Target met its burden of producing a legitimate
nondiscriminatory reason for its actions, as required by the
McDonnell Douglas test, and the burden shifted back to the
EEOC. Since the EEOC did not, in the district court’s
opinion, show that Target’s proffered reason was a pretext
for an actual discriminatory reason, the court granted
Target’s motion for summary judgment. In the district
court, Daniels was an unnamed class member. With respect
to his claim, as well as others, the court found that the
EEOC failed to show that Target’s reason for not hiring him
was merely a pretext for discrimination.
II. Discussion
A. Record Retention
The district court denied the EEOC’s motion for summary
judgment and granted Target’s cross motion for summary
judgment. The district court found that the only possible
remedy in this situation, a violation of 42 U.S.C. § 2000e-
No. 04-3559 11
8(c), is injunctive relief. We review a district court’s grant of
summary judgment de novo, thus we review de novo the
conclusion that an injunction was not necessary to prevent
Target from violating the EEOC’s record keeping regula-
tions in the future. See United States v. Raymond, 228 F.3d
804, 810-11 (7th Cir. 2000), cert. denied, 533 U.S. 902 (2001)
(reviewing de novo the grant of a permanent injunction in
the context of summary judgment). Summary judgment
should only be granted if the record shows that there is no
genuine issue of any material fact. Fed. R. Civ. P. 56(c).
When making such a determination a court must draw all
reasonable inferences in favor of the non-moving party.
Raymond, 228 F.3d at 810.
1. Brass Ring
Under Title VII, employers are required to “make and
keep such records relevant to the determinations of whether
unlawful employment practices have been or are being
committed.” 42 U.S.C. § 2000e-8(c). The EEOC’s record
keeping regulations require that employers retain applica-
tions and other documents related to hiring for one year. 29
C.F.R. § 1602.14. Additionally, if a charge of discrimination
has been filed, an employer is required to retain all relevant
personnel records until the final disposition of the charge.
Id.
On appeal, the EEOC contends that the district court
erred when it denied its motion for summary judgment
on Target’s record keeping violations and when it granted
Target’s motion for summary judgment on that same claim.
We find that the district court erred in concluding that no
genuine issue of material fact existed as to whether an
injunction is necessary to correct Target’s record keeping
violations.
While we agree that Target has put forth evidence that it
has revised its record retention policies in an effort to
12 No. 04-3559
comply with Title VII, we do not agree that such changes
ensure “on [their] face” that Target will not commit fur-
ther violations. See Equal Employment Opportunity
Comm’n v. Target Corp., No. 02-C-0146, slip op. at 11 (E.D.
Wis. 2004). The reforms chosen do not address the particu-
lar problems that allowed violations to occur. Individual
recruiters and administrative personnel destroyed records
that were supposed to be retained because they did not
know that they must retain them. In support of these
allegations, the EEOC invoked the testimony of Virginia
Schomisch, the person responsible for retaining employ-
ment documents for all of Target’s District 110 applicants,
who said that she did not know that she was required to
retain an applicant’s documents for more than one year
if that applicant files a charge with the EEOC. Additionally,
Armiger failed to retain the records of the individual
claimants in this suit and admitted that he destroyed
records that should have been retained.
Assuming that Armiger did not destroy employment
documents in bad faith, his claim that he did not know
he needed to retain these documents is problematic. Tar-
get’s old record keeping policy consisted of informing STL
Richard Walters that he needed to retain documents and of
conducting annual personnel file audits. Target claims that
it has mitigated the risk of untrained personnel destroying
documents by reiterating its policy on retention in emails to
STLs, biannual audits and communication through ETLs in
charge of compliance. A reasonable finder of fact could
conclude, however, that Target’s new policy of retention is
not substantially different from the old policy. Since Target
claims that its old policy could have allowed Armiger to
recruit without knowing that he must retain recruitment
documents, a reasonable fact finder could conclude that its
new policy likewise will not prevent recruiters from being
ill-informed. While Target has assigned ETLs for Team
Relations to ensure that each store is retaining documents
No. 04-3559 13
(either onsite or with Brass Ring) in compliance with
Target’s record keeping policy, a reasonable finder of
fact might question whether this assignment will be
sufficient if, for example, an STL (an ETL’s superior) is
assigned to help with recruiting in the same way that
Armiger was assigned in early 2001. Thus, we find there is
a genuine question of material fact as to whether Brass
Ring has truly reformed Target’s record retention policy
in such a way as to ensure that violations will not continue.
2. Bad Faith
The EEOC claims that Armiger knew that he was sup-
posed to retain the application documents of Cherise
Brown-Easley, Kalisha White and Ralpheal Edgeston but
did not do so, and that this knowing failure is evidence of
bad faith document destruction. Upper level managers were
told numerous times to retain resumes and employment
documents, and indeed, Dawne Carlson, the Regional
Human Resources Manager for District 110, testified that
Armiger should have known better than to destroy resumes.
Target argues that, just because Armiger should have
known better than to destroy resumes, does not mean that
he did know better, but this only underscores that this is a
genuine issue of material fact to be resolved at trial. It is
disputed whether or not Armiger knew not to destroy
resumes, but if he did know better and destroyed the
resumes nonetheless, a reasonable fact finder could infer
that he did so for a dishonest reason and in bad faith. The
record evidence does not provide enough information for the
question of bad faith to be resolved, but viewing all evidence
in the light most favorable to the EEOC, there is certainly
a genuine issue of material fact as to whether Armiger
destroyed the resumes in bad faith.
If Armiger did destroy the documents in bad faith, it
underscores the necessity for there to be further investiga-
14 No. 04-3559
tion into whether an injunction is necessary to prevent
further acts of bad faith by other Target employees. If
Target did not sufficiently prevent bad faith destruction of
employment documents in the past, it should adopt some
policy to prevent their destruction in the future. United
States v. Di Mucci, 879 F.2d 1488, 1498 (7th Cir. 1989)
(court should consider whether violations have effectively
discontinued when deciding whether to grant injunctive
relief in a discrimination case).
Nothing in Target’s new record keeping policy clearly
prevents bad faith destruction of resumes or other employ-
ment application documents. Target’s new policy involves
reiterating its procedures for retaining documents to its
store managers and recruiters and outsourcing the physical
storage of employment documents. Similar to Target’s
document retention polices prior to 2001, Target depends
greatly on the diligence of the company’s recruiters and
its managerial personnel to ensure that resumes, applica-
tions and interview guides are retained because these
personnel must forward the original documents to Brass
Ring. Target has not claimed that it has adopted a system
of penalties for failure to forward documents or in any other
way provided new incentives to ensure compliance with the
EEOC’s record keeping requirements.
Because these genuine issues of fact bear on whether
Target’s new record retention policy is sufficient to prevent
future violations of federal law, Target’s motion for sum-
mary judgment on this issue should not have been granted.
Consequently, we reverse and remand for fur-
ther proceedings.
B. Title VII Disparate Treatment Claims
We review the district court’s grant of summary judgment
on the disparate treatment claims de novo, and consider all
evidence in the record, and all reasonable inferences from
No. 04-3559 15
that record, in the light most favorable to the nonmoving
party. Vakharia v. Swedish Covenant Hosp., 190 F.3d 799,
805 (7th Cir. 1999). We affirm summary judgment only if
the evidence presented does not raise any genuine issue of
material fact. Fed.R.Civ.P. 56(c); Farrell v. Butler Univer-
sity, 421 F.3d 609, 612 (7th Cir. 2005). The EEOC contends,
and we agree, that the district court improperly granted
summary judgment in favor of Target on the disparate
treatment claims on behalf of James Daniels, Jr., Kalisha
White, Ralpheal Edgeston and Cherise Brown-Easley.
The district court properly used the familiar McDonnell
Douglas burden-shifting test to evaluate the EEOC’s claims.
See McDonnell Douglas v. Green, 411 U.S. 792 (1973). The
parties do not dispute that the EEOC established a prima
facie case of disparate treatment on behalf of all four
claimants at issue in this appeal. On these facts, a prima
facie case of disparate treatment is established when the
plaintiff shows the following: 1) the applicant belongs to a
racial minority; 2) the applicant applied for and was
qualified for a job for which the employer was seeking
applicants; 3) despite being qualified, the applicant was
rejected; and 4) after the applicant’s rejection, the position
remained open and the employer continued to seek applica-
tions from persons of the rejected applicant’s qualifications.
Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002).
If the plaintiff establishes a prima facie case, the em-
ployer must present a legitimate nondiscriminatory reason
for its action. Id. Then, the plaintiff must have a “full and
fair opportunity” to show that the employer’s proffered
reason was 1. factually baseless; 2. not the employer’s
actual motivation; 3. insufficient to motivate the action; or
4. otherwise pretextual. McDonnell Douglas, 411 U.S. at
804; Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 255-56 (1981); Vakharia, 190 F.3d at 807. The EEOC
claims that Target did not present a legitimate, nondiscrim-
inatory reason for failing to hire Daniels that was sufficient
16 No. 04-3559
to meet Target’s burden. The EEOC further claims that its
evidence to rebut Target’s reason for failing to interview
White, Edgeston and Brown-Easley was sufficient to raise
a genuine issue of material fact as to whether that reason
was a pretext for a discriminatory motive.
1. James Daniels, Jr.
Since the parties do not dispute that the EEOC, on behalf
of James Daniels, Jr., presented a prima facie case of
disparate treatment by Target, the next step is for Target
to rebut the inference of discrimination created by this
prima facie case. Thus, under the second step of the
McDonnell Douglas test, Target must clearly expound a
legitimate, non-discriminatory reason for its choice not
to hire Daniels. Vakharia, 190 F.3d at 806-07; McDonnell
Douglas, 411 U.S. at 802-03. In explaining this reason, the
employer need not persuade the court that it did not
discriminate against the applicant. Burdine, 450 U.S. at
257. Instead the employer must use admissible evidence
to raise a genuine issue of fact as to whether it rejected
the applicant based on a discriminatory motive. Id. at 254-
55. The employer must explain its claimed reason for
rejecting the applicant clearly enough to allow the court to
focus its inquiry on whether the employer honestly believed
that reason, Id. at 260, and to allow the plaintiff to identify
the kind of evidence it must present to demonstrate that the
reason is a pretext. Patrick v. Ridge, 394 F.3d 311, 317 (5th
Cir. 2004); see Burdine, 450 U.S. at 255-56 (stating that the
employer must “frame the factual issue with sufficient
clarity” so that the plaintiff has an opportunity to “demon-
strate pretext”).
An employer’s reason not to hire an applicant may be
subjective, such as an applicant’s poor attitude in an
interview. Millbrook, 280 F.3d at 1176 (employer’s rea-
son that the applicant “had poor communication skills
No. 04-3559 17
because he failed to make eye contract during the interview
and did not seem confident in his answers” was sufficient).
In the Eleventh Circuit, an employer must articulate
reasonably specific facts that explain how it formed its
opinion of the applicant in order to meet its burden under
Burdine. Chapman v. AI Transport, 229 F.3d 1012, 1034-35
(11th Cir. 2000). For example, if the employer rejected an
applicant because he gave a “poor interview,” the employer
must explain what specific characteristic it perceived as
“poor,” such as that the applicant’s interview responses
were unclear and off point. Id.
The Eleventh Circuit’s interpretation of Burdine is
reasonable because an employer’s assertion that it found a
plaintiff-applicant “poor” without any further explanation
would not create a genuine issue of fact as to whether the
employer honestly held that opinion. See Durkin v. Equifax
Check Services, Inc., 406 F.3d 410, 415 (7th Cir. 2005) (“self-
serving assertions” do not create a genuine issue of fact).
Because the word “criteria” implies that an employer is
evaluating specific characteristics of the applicant that are
able to be articulated, this interpretation is also consistent
with our precedent that allows employers to meet their
burden under McDonnell using “subjective evaluation
criteria.” See, e.g., Sattar v. Motorola, Inc., 138 F.3d 1164,
1170 (7th Cir. 1998) (stating that “subjective evaluation
criteria” such as an employee’s lack of “consistency, leader-
ship, initiative, and responsibility skills” were a sufficient
basis for an employer’s adverse action).
Here, Target did not meet its burden because its explana-
tion was only that “[b]ased upon [his] interview, Target
decided that [Daniels] did not meet the requirements for an
ETL position, and therefore elected not to hire him as an
ETL.” (Appellant’s App. 27). Without more detail, this
explanation does not frame the dispute such that the EEOC
can respond to Target’s asserted reason with specific
evidence that this reason was a pretext for a discriminatory
18 No. 04-3559
motive. Indeed, the EEOC has produced evidence that
Daniels possessed several qualifications deemed necessary
by Target for an ETL position. Daniels was sufficiently
qualified for an ETL position to participate in the ELITE
interview process. This was the third step toward being
hired as an ETL, and included two parts. First, Daniels took
a written test to determine leadership ability based on six
leadership qualities (Conscientiousness, Drive, Leadership,
Resilience, Interpersonal Effectiveness, and Problem
Solving). He scored in the ninetieth percentile or above on
four of the measured qualities, in the eighty-sixth percentile
on one quality and in the fiftieth percentile on the final
quality. Second, Daniels participated in three one-on-one
interviews. After this process, the interviewers met to
discuss Daniels, as they did with all other ELITE partici-
pants. The interviewers used their detailed interview forms
and written test scores as conversation-starters to discuss
whether Daniels should be offered a position. Target
produced interview forms with detailed comments about
some applicants, but Target did not produce the forms for
Daniels.
Because Target did not give a clear statement as to which
requirements Daniels lacked, the EEOC’s evidence sheds
little light on whether Target honestly believed that Daniels
was not qualified. Target should have articulated what
requirements Daniels failed to meet; Target presented an
ostensibly objective nondiscriminatory reason but failed to
articulate what criteria informed this reason. Target’s
proffered reason is insufficient to satisfy its burden to frame
an issue of fact so that the court and the EEOC can identify
what evidence might rebut that reason. Because Target’s
reason is insufficient, the EEOC can survive summary
judgment without refuting Target’s proffered reason.
Patrick, 394 F.3d at 316 n.20 (quoting Fisher v. Vassar
Coll., 114 F.3d 1332, 1335 (2d Cir. 1997), abrogated on other
grounds); see St. Mary’s Honor Center v. Hicks, 509 U.S.
No. 04-3559 19
502, 510 n.3 (1993) (stating that if an employer fails to show
a nondiscriminatory reason at trial the plaintiff will win
unless his or her prima facie case does not convince the fact
finder to infer a discriminatory motive).
Target argues that whether or not Daniels’ case could
have survived summary judgment is irrelevant because
the EEOC’s individual claim on behalf of Daniels is barred
because the EEOC did not allege in the district court that
Target failed to meet its burden to produce a legitimate
reason for rejecting him. However, Target argued (in the
context of a class action) that Target did “not cite any
evidence” in support of its proffered reason for rejecting
Daniels and that this lack of evidence “casts doubt on
Target’s claim that its hiring process produced legitimate,
non-discriminatory reasons for rejecting African-American
candidates for ETL jobs.” (Appellant’s App. 168-69). We find
this claim that the EEOC brought in the district court
adequate to consider Target’s individual claim on behalf
of Daniels on appeal.
Target also argues that Daniels’ claim is untimely under
42 U.S.C. § 2000e-5(e) because he was rejected more than
300 days before the charge that prompted the EEOC’s
investigation was filed. See Equal Employment Opportunity
Comm’n v. Harvey L. Walner & Assoc., 91 F.3d 963, 968 (7th
Cir. 1996) (stating that, after receiving an initial charge,
the EEOC may include in its complaint any re-
lated unlawful conduct that it discovers in the course of
investigating that charge). The district court did not
specifically address this issue, but Target encourages us to
affirm the district court on this issue. See J.E. Riley Inv. Co.
v. Commr. of Internal Revenue, 311 U.S. 55, 59 (1940)
(“where the decision below is correct it must be affirmed
by the appellate court though the lower tribunal gave a
wrong reason for its action”); see also Rauen v. U.S. Tobacco
Mfg. LP, 319 F.3d 891, 895 (7th Cir. 2003) (“[W]e may
20 No. 04-3559
affirm a grant of summary judgment on a ground other
than that relied upon by the district court below.”).
While Target is correct that we may affirm summary
judgment on this issue, we decline to do so. Keith Stanley’s
January 8, 2001, charge was included in the EEOC’s
complaint along with Kalisha White’s May 11, 2001, charge.
Although White’s charge was the first to allege that Target
was discriminating against African-Americans as a class,
Stanley’s charge brought the possibility of racial discrimina-
tion in Target’s District 110 to the attention of the EEOC
and began the process that led to the instant lawsuit.
Target did not argue specifically that Stanley’s charge is not
the appropriate charge from which to count for the purpose
of 42 U.S.C. § 2000e-5(e), though Target assumes that the
appropriate charge is that of White. Because the parties did
not fully argue this issue on appeal, we leave it to the
district court on remand to make this determination after
both parties have fully briefed and argued the issue. If the
district court determines that Stanley’s charge is the
appropriate starting point, Daniels charge is not outside the
statutory minimum. Daniels was rejected by Target after
March 13, 2000, which is within 300 days of when Keith
Stanley filed a charge that the EEOC investigated and
included in its complaint.
For the reasons discussed above, we reverse the district
court’s grant of summary judgment in favor of Target on
Daniels’ individual claim and remand this portion of the
case to the district court for further proceedings.
2. White, Edgeston & Brown-Easley
The district court declined to decide whether White,
Edgeston and Brown-Easley presented a prima facie case
because it concluded that whether or not a prima facie case
was established, the EEOC could not show that Target’s
nondiscriminatory reason for failing to interview White,
No. 04-3559 21
Edgeston and Brown-Easley was pretextual. On appeal,
Target did not claim, in response to the EEOC’s arguments,
that White, Edgeston and Brown-Easley failed to present a
prima facie claim; therefore, this issue is not before us.
In the district court, Target argued, and the court agreed,
that Target presented a legitimate, nondiscriminatory
reason to explain why White, Edgeston and Brown-Easley
were not interviewed for ETL positions. Store Team Leader
Matthew Armiger’s burdensome workload, Target argued,
caused him to fail in several of his recruitment duties,
including failure to conduct interviews when they were
scheduled. The EEOC did not contest this finding; therefore
step two of the McDonnell Douglas test is satisfied and the
burden shifts back to the EEOC.
In step three of the McDonnell Douglas test, a plain-
tiff must show that the defendant’s nondiscriminatory
reason for rejecting the applicant is a pretext meant to hide
a discriminatory motive. Millbrook, 280 F.3d at 1175. To
satisfy this requirement, a plaintiff must show that (a) the
employer’s nondiscriminatory reason was dishonest; and (b)
the employer’s true reason was based on a discriminatory
intent. McDonnell Douglas, 411 U.S. at 805; Vakharia, 190
F.3d at 807. To survive summary judgment, however, the
plaintiff need only offer evidence that supports an inference
that the employer’s nondiscriminatory reason for its action
was dishonest. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d
712, 726 (7th Cir. 2005); Weisbrot v. Med. Coll. of Wisconsin,
79 F.3d 677, 682 (7th Cir. 1996). Therefore, summary
judgment is only proper “where no rational fact finder could
believe that the employer lied about its proffered reasons
for the hiring decision in question.” Rudin, 420 F.3d at 726
n.8 (internal quotations and citations omitted).
A plaintiff may show pretext indirectly by attacking the
employer’s credibility. Burdine, 450 U.S. at 256. Nonethe-
less, “general determinations” about an employer’s credibil-
22 No. 04-3559
ity, though helpful, will not control whether a specific hiring
decision was honestly justified. McDonnell Douglas, 411
U.S. at 805 n. 19; see Furnco Constr. Corp. v. Waters, 438
U.S. 567, 579-80 (1978) (stating that the district court could
consider the composition of the employer’s workforce as
evidence that it did not have a discriminatory intent but
every applicant was nonetheless entitled to consideration
based only on permissible factors).
An applicant can raise a genuine issue of material fact
about an employer’s credibility by presenting evidence that
the employer’s explanation was contrary to the facts,
insufficient to justify the action or not truly the employer’s
motivation. Vakharia, 190 F.3d at 807; see Rudin, 420 F.3d
at 726 (stating that evidence that employer’s rationale for
the action changed over time or that employer did not follow
its normal hiring policy created genuine issue of whether
employer was credible). A plaintiff cannot raise a genuine
issue if the evidence shows only that the employer made a
wrong assessment of the applicant. Millbrook, 280 F.3d at
1175. Instead, the plaintiff must present evidence that
supports an inference that the employer was intentionally
dishonest when it gave its nondiscriminatory reason for
rejecting the applicant. Id. Only evidence of information
that was available to the employer at the time it rejected
the applicant will be relevant. Vakharia, 190 F.3d at 808.
Here, we find that the EEOC did present sufficient
evidence to establish a genuine issue of material fact as to
whether Target’s reason for not interviewing White,
Edgeston and Brown-Easley was a pretext for race discrimi-
nation. First, Target argued that Armiger could not have
discriminated against White, Edgeston and Brown-Easley
because he did not know their race. However, the EEOC
presented evidence that creates a genuine issue of material
fact as to whether Armiger knew the applicants’ race. The
EEOC showed that each applicant’s resume contained
information that suggested she might be African-American.
No. 04-3559 23
White’s resume indicated that she was a member of Alpha
Kappa Alpha sorority, and Armiger testified that he knew
this to be an African-American sorority. Edgeston’s resume
showed that she also was a member of Alpha Kappa Alpha
sorority, that she majored in African-American studies that
she wrote a paper titled The African-American Response to
School Choice in Milwaukee and that she was a member of
the NAACP. Finally, Brown-Easley’s resume indicated that
she was a member of the “Metropolitan Alliance of Black
School Educators.” Armiger testified that he typically
looked at sorority involvement and extracurricular activities
when he reviewed resumes, and that he reviewed White and
Edgeston’s resumes. In addition, Armiger was in charge
of recruiting at University of Wisconsin-Milwaukee, and
Edgeston and Brown-Easley’s resumes were collected from
a multi-cultural career fair at that school.
Additionally, Armiger claims that he failed to interview
White because he was “too busy” with his management
duties when she called. He claims that he often told appli-
cants that he was too busy to speak to them if they called
while he was on the sales floor, and that he did not keep a
record of who called. However, fifteen minutes after White
called Armiger, Armiger took a call from the fictitious
Caucasian applicant, “Sarah Brucker,” and scheduled an
interview with her. “Brucker” was less qualified than White
because White was pursuing an MBA degree but “Brucker”
was not, and Armiger recalled seeing in White’s resume
that she was pursuing this MBA. These facts support a
reasonable inference that Armiger’s busy schedule was (a)
not his actual motivation; or (b) an insufficient reason for
failing to interview White, Edgeston and Brown-Easley.
Thus, based on this fact as well, a reasonable fact finder
could conclude that Target’s nondiscriminatory reason for
failing to interview the applicants is pretextual.
Target disputes that the Sarah Brucker interview situa-
tion aids the EEOC’s argument. Target argues that White’s
24 No. 04-3559
deposition testimony conflicts with her claim that the calls
from White and “Brucker” were only fifteen minutes apart
because White could not remember at her September 24,
2002, deposition exactly how much time had passed be-
tween the calls. Because White affirmed in that deposition
that her May 11, 2001, charge of discrimination was correct
and because her charge stated that about fifteen minutes
passed between the calls, for the purpose of summary
judgment we accept the EEOC’s assertion that the calls
were fifteen minutes apart and find that this evidence can
and does aid the EEOC’s argument.
Second, Target claims that Armiger would not have had
White’s resume in front of him when she called to set up an
interview and he said he was too busy to do so, and he
therefore would not have known her race. However, the
EEOC presented expert testimony indicating that some
people can determine a speaker’s race based on his or her
voice or name.
Dr. Thomas Purnell, a linguistics professor, researched
racially-affiliated dialects and telephone filtered speech.
Purnell had White, Edgeston and Brown-Easley read
statements to him over the telephone that were similar to
those they made to Armiger. He testified that the three
women were discernible as African-American.
Dr. Marianne Bertrand, an economics professor, testified
that some corporate recruiters can identify a person’s race
based on his or her name. Bertrand’s study compared job
applicants with Caucasian names, such as Sarah, versus
applicants with African-American names, such as Lakisha.
Bertrand noted that White’s first name, Kalisha, is very
similar to the name Lakisha that was used in her study.
The expert testimony of Purnell and Bertrand might
persuade a reasonable fact finder that, at the time of the
phone calls, Armiger at least suspected that White was
African-American and that “Brucker” was Caucasian.
No. 04-3559 25
Target argues that the expert evidence does not raise
a genuine issue of fact because it addresses some people’s
ability to discern race but not Armiger’s ability to do so.
However, there is a genuine issue of material fact as to
whether Armiger was able to distinguish White and
Brucker’s respective races. See Rudin v. Land of Lincoln
Cmty. Coll., 420 F.3d 712, 726 (7th Cir. 2005); Weisbrot v.
Med. Coll. of Wisconsin, 79 F.3d 677, 682 (7th Cir. 1996).
This expert evidence likewise could lead a fact finder
to conclude that Armiger knew Edgeston and Brown-
Easley’s race because each of these applicants left at least
one message for Armiger after he failed to call at their
scheduled interview time. Armiger had set up interviews for
March 4 and 6, 2001. He was supposed to interview nine
ETL candidates over those two days, including Edgeston
and Brown-Easley. He failed to interview Edgeston and
Brown-Easley as well as two Caucasian candidates. One of
the Caucasian candidates does not recall whether he was
ever interviewed by Target. Edgeston, Brown-Easley and
one of the Caucasian candidates each called Target to find
out why they were not interviewed. All three candidates
called the same phone number, which was also the number
they had called to set up their interviews with Armiger. The
Caucasian candidate was interviewed later by another
Target official. Edgeston and Brown-Easley were never
interviewed.
This evidence, as a whole, raises a genuine issue of fact as
to whether Arminger knew White, Edgeston and Brown-
Easley’s race at the time he failed to interview them. Thus,
a reasonable fact finder could conclude that contrary to
Target’s assertion and Armiger’s testimony, Armiger did
know the race of the applicants at the time he chose not
to interview them.
Finally, Target also argues that if Armiger had intended
to discriminate against Edgeston and Brown-Easley he
would not have contacted them to set up an interview, and
that because Armiger did set up the interview it makes
26 No. 04-3559
sense to assume that he would not miss it for a discrim-
inatory reason. The EEOC claims that Armiger did not
choose to interview Edgeston and Brown-Easley, but
instead only followed up on the recommendations of his
predecessor and of career fair recruiters. This Court need
not address the contours of each side’s logic on this
point any further than to conclude that there is a dispute
over when and with how much care Armiger reviewed
Edgeston and Brown-Easley’s resumes and who actually
decided to interview the individuals. A trier of fact will
likely need to resolve this dispute, but at this stage, we
construe the facts in the light most favorable to the EEOC,
and the EEOC has presented a genuine issue of fact as
to whether Armiger was truly the decision-maker that
elected to interview Edgeston and Brown-Easley.
Viewing all facts in the light most favorable to the EEOC
and drawing all inferences in its favor, we conclude that
there is a genuine issue of material fact as to whether
Target’s proffered reason that Armiger was too busy to
interview White, Edgeston and Brown-Easley was a pretext
for discriminatory action based on race. Therefore, sum-
mary judgment was improper for these applicants’ individ-
ual claims.
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s
grant of Target’s motion for summary judgment on its
record keeping violations and on the individual disparate
treatment claims of James Daniels, Jr., Kalisha White,
Ralpheal Edgeston and Cherise Brown-Easley, and REMAND
for proceedings consistent with this opinion.
No. 04-3559 27
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-06