In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3473
D ARRELL P OER,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner
of Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-01425-SEB-JMS—Sarah Evans Barker, Judge.
A RGUED F EBRUARY 10, 2010—D ECIDED M AY 27, 2010
Before R IPPLE, M ANION and W ILLIAMS, Circuit Judges.
R IPPLE, Circuit Judge. Darrell Poer brought this action
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., against his employer, the Social Security
Administration (“SSA” or “Administration”). He alleged
that the Administration failed to promote him because
he had engaged in protected activity, specifically he had
testified on behalf of two other employees. The district
court granted summary judgment to the Administration.
2 No. 09-3473
For the reasons set forth in the following opinion, we
affirm the judgment of the district court.
I
BACKGROUND
A. Facts 1
1.
Mr. Poer’s claim concerns the filling of a GS-13 Super-
visor Attorney-Adviser position in the SSA’s Office of
Disability Adjudication and Review (“ODAR”) located in
Indianapolis, Indiana. Because the procedure for filling
a position at this level is convoluted and also bears
upon Mr. Poer’s claim, we set it forth in some detail.
The Regional Chief Administrative Law Judge is the
selecting official for GS-13 attorney positions. At the
relevant time, Paul C. Lillios was the Regional Chief
Administrative Law Judge for Region V, which encom-
passes Indiana, Illinois, Wisconsin, Michigan, Ohio and
Minnesota. It was Judge Lillios’s practice to seek the
recommendation of the Hearing Office Chief Administra-
tive Law Judges regarding the selection of GS-13 senior
attorneys. Administrative Law Judge Blanca de la Torre
acted as the SSA’s Hearing Office Chief Administrative
1
Because Mr. Poer’s claim was disposed of on summary
judgment, we construe all facts and reasonable inferences in
favor of the nonmoving party, here Mr. Poer. See, e.g., Marion
v. City of Corydon, Ind., 559 F.3d 700, 704 (7th Cir. 2009).
No. 09-3473 3
Law Judge in Indianapolis. In this capacity, it was Judge
de la Torre’s responsibility to determine the organiza-
tional structure, staffing needs and composition of staff
at the Indianapolis office.
Before an area ODAR office within Region V was
allowed to announce an open position, it had to request
authority to fill the position from the Region V office. In
2005, Frank McGinley, ODAR’s Region V Regional Man-
agement Officer, was responsible for reviewing and
approving such requests. If the request were approved, it
would be sent to the Human Resources Specialist, a
position that was held by Addie Price.
Price then would prepare the vacancy announcement,
collect the applications and create a “well-qualified
certificate,” 2 which listed the applicants that had been
determined to have the best qualifications for the vacant
position. Price also was responsible for compiling the
certificate package, which included the well-qualified
certificate and the applications of the individuals who
were listed on the certificate. “When the number of candi-
dates listed on the certificate did not provide a suf-
ficient field of candidates from which to choose, it was
a common and longstanding practice of Region V ODAR
to cancel the announcement for lack of a sufficient field
of candidates.” R.43, Ex. 3 ¶ 10. According to McGinley,
“it was desirable to have at least three viable candidates
to choose from because this help[ed] to ensure that the
best possible selection [wa]s made.” Id.
2
The parties refer to this document both as the “well-qualified
certificate” and the “best qualified certificate.”
4 No. 09-3473
Price would forward the compiled package to Mary Jo
Awbrey, who was responsible for personnel actions in
McGinley’s office. Upon receipt of the certificate package,
Awbrey would report to McGinley that the certificate
package had arrived and then send it to the ODAR’s
Hearing Office Chief Administrative Law Judge.
If the Hearing Office Chief Administrative Law Judge
selected an individual for a GS-13 attorney position, she
would sign the well-qualified certificate, indicate the
choice and return the certificate to Region V head-
quarters in Chicago. At that point, McGinley would
review the choice with Judge Lillios. If Judge Lillios
agreed with the recommendation, he would sign the well-
qualified certificate as the selecting official. Awbrey
then would send the certificate package to Price to imple-
ment the personnel action.
2.
Since 1990, Mr. Poer has worked as an Attorney Adviser
for the ODAR in Indianapolis. In 2003, Mr. Poer testified
on behalf of two female African-American employees
who had filed suit against Allen Kearns; Kearns was the
Hearing Office Director and Mr. Poer’s second
level supervisor.3 Following Mr. Poer’s testimony, both
3
Kearns served as Hearing Office Director for the Indianapolis
office from 1993 until 2008. He was responsible for acting
on behalf of Judge de la Torre in all matters relating to the
(continued...)
No. 09-3473 5
Mr. Poer and Kearns remained employed at the SSA.
Mr. Poer admits that, for the two years following his
testimony, he suffered no retaliation at the hand of
Kearns or anyone else at the Administration.
In 2005, Daniel Mages was reassigned from his posi-
tion as a GS-13 Senior Attorney-Adviser to a GS-13 Super-
visory Attorney-Adviser within the Indianapolis office;
this reassignment resulted in the opening of a GS-13
Senior Attorney-Adviser position. In October 2005, at the
direction of Judge de la Torre, Kearns requested
and received authority to announce an open GS-13
Senior Attorney-Adviser position.
On November 14, 2005, the SSA posted the job opening,
which was advertised throughout Region V. Price was
responsible for drafting and posting the announcement.
The announcement provided that travel and relocation
expenses would be authorized in accordance with ap-
plicable regulations. Mr. Poer applied for the position.
After receiving the applications, Price assembled the
well-qualified certificate, which listed the final candidates
from whom a selection would be made. This certificate
included Mr. Poer and two other individuals, one from
Illinois and one from Iowa. Illinois is in Region V; Iowa
3
(...continued)
management and operation of the Indianapolis ODAR, in-
cluding planning, policy implementation, budget, personnel
and facilities. He also had the duty of tracking vacancy an-
nouncements and certificate packages and keeping Judge
de la Torre apprised of the status of the application process.
6 No. 09-3473
is not. The certificate was sent to Kearns and was valid
from December 16, 2005, the date on which it was gener-
ated, through March 16, 2006.
At the time the certificate was issued, the SSA was under
severe budgetary restrictions. A temporary hiring freeze
was implemented in January 2006, which “meant
that no new hires could be made and that no full time
equivalents (FTE’s) could be brought in from another
region.” Id. ¶ 19. Additionally, relocation expenses for
any candidates had to be approved through ODAR Head-
quarters in Falls Church, Virginia. Because of the fiscal
limitations at the time, “such requests were to be made
only for positions that were urgent and critical to the
mission of the office where the positions [we]re located”;
senior attorney positions were not considered “urgent
and critical.” Id. ¶ 21. McGinley explained that, “[g]iven
the budgetary constraints, I would not have even
asked Headquarters for relocation expenses for the India-
napolis senior attorney position because I knew that
my request would have been denied.” Id.
Judge de La Torre stated that, during this time, she
participated in regular conference calls with Judge Lillios
and McGinley. During these calls, the Hearing Office
Chief ALJs were apprised of the SSA’s severe budget
limitations and of the “various budgetary concerns stem-
ming from that situation, including a hiring freeze,
and restrictions in relocation allocations and full-time
equivalent (’FTE’) positions.” R.43, Ex. 4 ¶ 5.
Judge de la Torre recalled that, upon receiving the
certificate, Kearns informed her that “there were three
candidates on the list”; she “understood,” incorrectly, “that
No. 09-3473 7
two candidates were from outside our region, and the
third candidate was [Mr. Poer], who [wa]s assigned to
the Indianapolis Office.” R.43, Ex. 5 ¶ 6. Sometime in
January, Kearns met with Judge de la Torre to discuss
the candidates and the open position. Judge de la Torre
believed that relocation expenses would not be ap-
proved for any candidate, and, therefore, she could not
consider the candidates who would have to relocate to
Indianapolis; this eliminated everyone but Mr. Poer
from consideration. Judge de la Torre believed, however,
that she “should be able to select a candidate based on
merit and not by virtue of elimination.” Id. ¶ 8. This
practice, she believed, was “consistent with [her] training
and experience as a manager within the SSA. In the past,
the agency ha[d] returned certificates and reannounced
positions when the certificates did not contain a suffi-
ciently wide field of candidates.” R.43, Ex. 4 ¶ 11.4
On March 16, 2006, the certificate expired without any
individual being hired. In April 2006, Kearns received
a call inquiring about the location of the certificate.
He subsequently signed and returned it, writing “No
selection made—no FTEs available.” R.43, Ex. 8, Attach. 2.
4
Judge de la Torre also stated that “[t]his [wa]s the first time
that I ha[d] been confronted with a similar situation, that is,
having only one candidate to select and returning a certificate
without making a selection.” She noted that, “[f]or every
selection that I ha[d] made in the 2.5 years that I ha[d] held
my position, I [was] provided with a larger number of appli-
cants from which to make a selection.” R.43, Ex. 5 ¶ 9.
8 No. 09-3473
Shortly after this, Kearns met with Mr. Poer. In this
conversation, Kearns represented himself as the selecting
official and stated that “I couldn’t get FTEs . . . for the
other two people and that left you on the list and
I couldn’t select you because that wouldn’t be meritori-
ous.” R.43, Ex. 11 ¶ 4.
Several months later, Kearns informed Judge de la Torre
that Mages was “contemplating stepping down from
his position as a Group Supervisor and had expressed
an interest in being re-assigned to the Senior Attorney-
Adviser position.” R.43, Ex. 4 ¶ 14. Mages subsequently
was reassigned to the Senior Attorney-Adviser position
in September 2006.
B. District Court Proceedings
After exhausting his administrative remedies, Mr. Poer
instituted this action in which he claimed that the SSA
had failed to promote him to the open Senior Attorney-
Adviser position in retaliation for his prior testimony
against Kearns. In response to the SSA’s motion for sum-
mary judgment, Mr. Poer argued that there was suf-
ficient circumstantial evidence from which a jury could
conclude that Kearns’s discriminatory animus infected
the promotion process. The district court disagreed.
The court first noted that Mr. Poer had “concede[d] that
there is no evidence that any of the named SSA
decisionmakers—Hearing Office Chief ALJ de la Torre,
Regional Chief ALJ Lillios, or Regional Management
Officer McGinley—knew that he had previously engaged
in any protected activity.” Poer v. Astrue, No. 1:07-cv-1425,
No. 09-3473 9
2009 WL 2905480, at *7 (S.D. Ind. Sept. 8, 2009). Although
such a concession usually was fatal to a retaliation
claim, Mr. Poer also had contended “that Mr. Kearns,
although not one of the ultimate decisionmakers, had
knowledge of his (Mr. Poer’s) protected activity and
unlawfully influenced the decision to cancel the job
announcement which prevented his selection for the
position of Senior Attorney-Advisor.” Id. The court ac-
knowledged that, “[w]hen a supervisor with an allegedly
retaliatory motive is involved in the employment deci-
sion, ‘that retaliatory motive, in some circumstances,
may be imputed to the company.’ ” Id. (quoting
Dorsey v. Morgan Stanley, 507 F.3d 624, 628 (7th Cir. 2007)).
However, the court continued, “to impute a non-
decisionmaker’s allegedly improper motive to the em-
ployer, a plaintiff must demonstrate that the non-deci-
sionmaker significantly influenced the employer’s decision,
‘either by withholding relevant information or providing
false information.’ ” Id. (quoting Dorsey, 507 F.3d at 628).
The court determined that Mr. Poer had not come forth
with sufficient evidence of Kearns’s involvement in the
hiring process “so as to taint the process to Mr. Poer’s
detriment.” Id. at *8. The district court noted that,
[a]dmittedly, the evidence does show that
Mr. Kearns supplied Judge de la Torre with inac-
curate information regarding the candidates’ then
current employment locations, erroneously
telling her that two of the three applicants worked
outside of Region V. . . .
Nonetheless, this misinformation was neither
crucial nor determinative in the decision to cancel
10 No. 09-3473
the job vacancy posting. Judge de la Torre and
Mr. McGinley testified that the cancellation deci-
sion was made based on budgetary constraints: in
their judgment, ODAR would not have approved
relocation expenses for two of the three candidates
and, in addition, Judge de la Torre did not
believe that a hiring decision should be made on
the basis of there being only one candidate re-
maining by process of elimination of the other
two. The undisputed facts establish both that
out-of-region as well as out-of-state candidates
would have required payment by ODAR of reloca-
tion expenses, which, at the time, were being
approved only for positions that were deemed
urgent and critical, which was not the case with
the Senior Attorney-Advisor position. Therefore,
although Mr. Kearns’s statement regarding the
number of candidates located outside of Region V
was in error, it has not been shown to have
affected the cancellation decision, since two of
the three applicants would still have required
payment of relocation expenses.
Id. Furthermore, the court noted, Judge de la Torre’s
“decision and recommendations were subsequently
independently reviewed and approved by Mr. McGinley,”
who reached his conclusions without input from Kearns.
Id. Thus, the court concluded, there simply was not
any evidence of Kearns’s allegedly retaliatory motive
affecting the SSA’s failure to promote Mr. Poer. See id.
Mr. Poer timely appealed.
No. 09-3473 11
II
DISCUSSION
We review a district court’s grant of summary judg-
ment de novo and construe all facts and reasonable
inferences in favor of the nonmoving party. Magin v.
Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005). In
reviewing the entry of summary judgment, “[i]t is not
our role to evaluate the weight of the evidence, to judge
the credibility of witnesses or to determine the ultimate
truth of the matter, but simply to determine whether
there exists a genuine issue of triable fact.” South v. Illinois
Envtl. Prot. Agency, 495 F.3d 747, 751 (7th Cir. 2007) (cita-
tions omitted). We may affirm a grant of summary judg-
ment if “the pleadings, depositions, answers to inter-
rogatories, 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.” Magin, 420 F.3d at 686
(quoting Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317 (1986)).
Title VII prohibits an employer from “discriminat[ing]
against” an employee because he has “opposed” practices
that Title VII forbids or because he has “made a charge,
testified, assisted, or participated in” a Title VII “investiga-
tion, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a).
Although a plaintiff may employ either the direct or
indirect method to prove his claim of retaliation, see
Szymanski v. County of Cook, 468 F.3d 1027, 1029 (7th Cir.
2006), Mr. Poer has proceeded only under the direct
method.
12 No. 09-3473
The direct method is not synonymous with “direct
evidence.” Metzger v. Illinois State Police, 519 F.3d 677, 681
(7th Cir. 2008). “[T]his Court recently has clarified that . . .
‘circumstantial evidence that is relevant and probative
on any of the elements of a direct case of retaliation may
be admitted and, if proven to the satisfaction of the trier
of fact, support a case of retaliation.’ ” Gates v. Caterpillar,
Inc., 513 F.3d 680, 686 (7th Cir. 2008) (quoting Treadwell v.
Office of Ill. Sec’y of State, 455 F.3d 778, 781 (7th Cir. 2006)).
Thus, “a plaintiff must show through either direct
or circumstantial evidence that (1) she engaged in statu-
torily protected activity; (2) she suffered an adverse
action taken by the employer; and (3) there was a
causal connection between the two.” Metzger, 519 F.3d at
681 (citing Dorsey, 507 F.3d at 627). If the plaintiff’s evi-
dence of retaliatory animus is contradicted,
the case must be tried unless the defendant pre-
sents unrebutted evidence that it would have taken
the adverse employment action against the plain-
tiff anyway, “in which event the defendant’s
retaliatory motive, even if unchallenged, was not
a but-for cause of the plaintiff’s harm.”
Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.
2003) (quoting Stone v. City of Indianapolis Pub. Util.
Div., 281 F.3d 640, 642 (7th Cir. 2002)).
At this stage, the parties agree that Mr. Poer’s testimony
on behalf of the two other employees constituted statu-
torily protected activity. 42 U.S.C. § 2000e-3(a) (“It shall
be an unlawful employment practice for an employer to
No. 09-3473 13
discriminate against any of his employees . . . because he
has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this subchapter.” (emphasis added)). The SSA also
does not contend that its failure to promote Mr. Poer to
the Senior Attorney-Adviser position was not an adverse
action taken by the employer. See, e.g., Volovsek v.
Wisconsin Dep’t of Agric., Trade & Consumer Prot., 344 F.3d
680, 688 (7th Cir. 2003). Thus, the critical issue that we
must resolve is whether there is a causal connection
between the protected activity and the adverse action.
A.
Mr. Poer recognizes that he faces an initial hurdle in
establishing causation. “Under the direct method, the
plaintiff must provide either direct evidence or circum-
stantial evidence that shows that the employer acted
based on prohibited animus.” Mattson v. Caterpillar, Inc.,
359 F.3d 885, 888 (7th Cir. 2004). However, it is undis-
puted that Judge de la Torre, the individual responsible
for making the decision not to fill the open Senior
Attorney-Adviser position, did not know of Mr. Poer’s
protected activity at the time she made her decision.
Nevertheless, “we have stated that the retaliatory
motive of a ‘nondecisionmaker’ may be imputed to the
company where the ‘nondecisionmaker’ influenced the
employment decision by concealing relevant information
from, or feeding false information to, the ultimate
decisionmaker.’ ” David v. Caterpillar, Inc., 324 F.3d 851,
14 No. 09-3473
861 (7th Cir. 2003) (citing Wallace v. SMC Pneumatics, Inc.,
103 F.3d 1394, 1400 (7th Cir. 1997)).
1.
Mr. Poer maintains that Kearns’s retaliatory motive
may be imputed to the SSA because he influenced the
promotion decision by “feeding false information to”
Judge de la Torre. Although the evidence supports the
inference that Kearns provided false information to
Judge de la Torre, the unrebutted evidence also estab-
lishes that the false information did not affect Judge de la
Torre’s decision not to fill the Senior Attorney-Adviser
position. As set forth in some detail previously, the false
information provided to Judge de la Torre was that the
other two applicants for the position were from outside
Region V. Under the budgetary restrictions at the time,
Region V could not make any hires from outside the
region. Thus, the result of Kearns providing the false
information was to limit the field of candidates to one,
Mr. Poer.
However, if Kearns had related accurate information
to Judge de la Torre, the result would have been the
same. With the exception of Mr. Poer, all of the
candidates lived outside Indianapolis and therefore
would have required relocation expenses. Both Judge
de la Torre and McGinley stated that, because of
budgetary restrictions, they believed that ODAR Head-
quarters would not have approved relocation expenses for
this position. Thus, the actual situation was the same
as that created by the false information: Because of bud-
getary constraints, Mr. Poer was the only candidate on
No. 09-3473 15
the certificate that could be hired, and Judge de la Torre
required a greater number of candidates from which
to choose.
In sum, regardless whether Kearns stated that the
candidates were from outside the region (false) or outside
of Indianapolis (true), Judge de la Torre still would
have left the position open. Because the unrebutted
evidence establishes that the position would have re-
mained open regardless of Kearns’s false information,
Mr. Poer’s retaliation claim must fail. See Haywood, 323
F.3d at 531 (stating that a case need not be presented to
a jury when “the defendant presents unrebutted evi-
dence that it would have taken the adverse employ-
ment action against the plaintiff anyway”).
2.
Mr. Poer claims that there is other evidence of “influ-
ence” that a jury should be allowed to consider, namely,
Kearns’s handling of the well-qualified certificate. Specifi-
cally, Mr. Poer points to the facts that Kearns received
the certificate, that he discussed it with Judge de la Torre
and that he signed the certificate, as evidence of “influ-
ence.” However, Kearns’s job responsibilities included
acting on Judge de la Torre’s behalf with respect to the
“management and operations of the Indianapolis
ODAR, including planning, policy implementation,
budget, personnel, and facilities.” R.42 at 3. Furthermore,
he “was responsible for tracking vacancy announcements
and certificate packages.” Id. The actions Mr. Poer points to
16 No. 09-3473
are completely consistent with Kearns’s administrative
responsibilities and do not suggest any untoward influence
into Judge de la Torre’s decisionmaking process.5
B.
Mr. Poer points to a myriad of other facts which, he
believes, would allow a jury to conclude that he was
the victim of retaliation. First, Mr. Poer argues that
Judge de la Torre’s rationale for not selecting him was
completely subjective and, therefore, suspect. We disagree
with both Mr. Poer’s characterization of the evidence and
the conclusion he draws from it. First, the undisputed
evidence established that, “[w]hen the number of candi-
5
Mr. Poer also argues that this “influence” can be seen by the
fact that Kearns identified himself as the selecting official
during a conversation with Mr. Poer. Although Kearns
disputes this fact, we nevertheless must assume it is true in
evaluating the Administration’s motion for summary judg-
ment. However, how Kearns portrayed himself to other em-
ployees is irrelevant to the question whether he actually had
any influence over the decisionmaking process; there is no
evidence that Judge de la Torre, who Mr. Poer identifies as “the
actual selecting official,” Appellant’s Br. 16, knew that Kearns
identified himself as the decisionmaker or, much less, condoned
that action. Cf. Restatement (Third) of Agency § 3.03 (2006)
(stating that “an agent’s apparent authority originates
with expressive conduct by the principal toward a third party
through which the principal manifests assent to action by
the agent with legal consequences for the principal” (em-
phasis added)).
No. 09-3473 17
dates listed on the certificate did not provide a suf-
ficient field of candidates from which to choose, it was a
common and longstanding practice of Region V ODAR
to cancel the announcement for lack of a sufficient field
of candidates.” R.43, Ex. 3 ¶ 10. Thus, the decision not to
select from a field of one was not simply a whim
of Judge de la Torre’s. Furthermore, although Judge
de la Torre was not required to cancel the announcement
under these circumstances, the fact that a management
decision has a subjective component does not render it
automatically suspect. Cf. Dorsch v. L.B. Foster Co., 782
F.2d 1421, 1427 (7th Cir. 1986) (“A subjective qualifica-
tion assessment does not convert an otherwise
legitimate reason into an illegitimate one.”).
Mr. Poer next argues that the jury could draw an infer-
ence of discrimination because, over time, the Admin-
istration has offered different explanations for not hiring
him. See Zaccagnini v. Charles Levy Circulating Co., 338
F.3d 672, 678 (7th Cir. 2003) (holding that explanation
for termination raised for the first time in summary-
judgment reply brief “may be enough in and of itself to
preclude summary judgment . . . since a jury could rea-
sonably find that its failure to come forward with this
explanation earlier makes it not credible” and collecting
cases). Again, we do not believe that this is a reasonable
inference that the jury could draw from the evidence.
When Kearns signed the well-qualified certificate, he
18 No. 09-3473
stated, “No selection made—no FTEs available.” 6 R.43, Ex.
8, Attach. 2.7 Based on McGinley’s and Judge de la Torre’s
statements with respect to budget restrictions, 8 this infor-
6
This statement does not differ in any material respect from
the statement that Kearns allegedly made to Mr. Poer on
April 11, 2006: “I couldn’t get FTEs (i.e., full time equivalent)
for the other two people and that left you on the list and
I couldn’t select you because that wouldn’t be meritorious.”
R.43, Ex. 11 ¶ 4.
7
Mr. Poer maintains that the term FTE is inherently ambigu-
ous, that it could mean either a “Full Time Equivalent” slot or
an employee who fills one of those slots, and that, under the
circumstances here, one cannot discern how Kearns is em-
ploying the term. Thus, according to Mr. Poer, we must con-
clude that “no FTEs available” means “no available candi-
dates.” Appellants Br. 24 & n.8. Again, we disagree. Given
that “No selection made—no FTEs available” appeared on
the certificate which listed three candidates, the logical inter-
pretation is not that there was a lack of candidates available,
but that there was a lack of slots available for transfer to
the Indianapolis office.
8
Mr. Poer also challenges the admissibility of McGinley’s and
Judge de la Torre’s statements concerning the budget shortages
that the Administration, specifically Region V, was operating
under at the time. McGinley stated that, when he retired in
March 2007, he had been with the SSA for thirty-three years
and had been the Regional Management Officer for Region V
for five and one-half years. In that position, his “duties con-
sisted of acting on behalf of the Regional Chief Administra-
tive Law Judge (RCALJ) in all matters regarding the manage-
(continued...)
No. 09-3473 19
mation is correct, but incomplete. Budget limitations
prevented the transferring of full time equivalent slots
from one region to the other; this restriction eliminated
the hiring of the candidate from Iowa (outside the re-
gion), but not from Illinois (within the region). During
administrative proceedings, neither McGinley nor Judge
de la Torre contradicted this statement; however, they
explained how, because of budget restrictions, not only
were FTEs unavailable, but also relocation expenses
were unavailable. The SSA—through its employees—
always has asserted that, because of its budgetary
woes, the certificate yielded an insufficient number of
candidates from which to choose.9
8
(...continued)
ment and operations of ODAR in Region V, including planning,
policy implementation, field office operations, budget, person-
nel, and facilities.” R.43, Ex. 3 ¶ 5. Thus, in his capacity as
Regional Management Officer, McGinley had personal knowl-
edge of the budget under which the region was operating
and the concomitant limitations that the lack of funds placed
on his ability to hire and transfer personnel.
9
As a corollary to his last argument, Mr. Poer maintains that
he is entitled to have a jury assess the credibility of the ex-
planations given by Judge de la Torre and McGinley with
respect to the SSA’s budget restrictions and the implications
of those restrictions on the decision to leave open the Senior
Attorney-Adviser position. In support of this argument,
Mr. Poer points to Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 147 (2000). We do not believe that Reeves is helpful
to Mr. Poer. Reeves held that, if the plaintiff establishes a
(continued...)
20 No. 09-3473
Finally, Mr. Poer faults Judge de la Torre for not at-
tempting to secure relocation expenses for the other
candidates or determining whether the other candidates
would waive relocation expenses. The fact that she
did not explore these alternatives, he suggests, under-
mines the validity of the SSA’s reliance on budgetary
constraints. Although Mr. Poer believes that Judge
de la Torre should have taken more aggressive measures
in attempting to widen the field of possible candidates,
her failure to do so is not evidence of an illicit motive.
We frequently have stated that “[t]he fact that the em-
ployer was mistaken or based its decision on bad policy,
or even just plain stupidity, goes nowhere as evidence
that the proffered explanation is pretextual.” Essex v.
United Parcel Serv., Inc., 111 F.3d 1304, 1310 (7th Cir.
1997). Furthermore, far from being without justifica-
tion, here the record suggests that Judge de la Torre had
sound reasons for her actions. Requesting relocation
expenses for the other two candidates simply would have
9
(...continued)
prima facie case of discrimination under the indirect method
and comes forward with evidence that the employer’s proffered
reason for terminating employment is false, that is sufficient
evidence from which a jury may infer a discriminatory intent.
See id. at 145-47. Here, Mr. Poer has not proceeded under
the indirect method and, therefore, has not established a prima
facie case of retaliation. Moreover, Mr. Poer has not set
forth evidence from which a jury could conclude that
Judge de la Torre’s explanation for not filling the Senior
Attorney-Adviser position was false.
No. 09-3473 21
wasted administrative time and effort. Indeed, McGinley
stated that, even if requested by Judge de la Torre, he
“would not have . . . asked Headquarters for relocation
expenses for the Indianapolis senior attorney advisor
position because [he] knew that [his] request would
have been denied.” R.43, Ex. 3 ¶ 21. Furthermore,
McGinley explained that it would have been “extremely
inappropriate” to request that a candidate “pay for
his/her own relocation expenses,” and, even if the candi-
date agreed, McGinley was unsure if such an agreement
could be enforced. Id.
The unrebutted evidence establishes that, during the
time that the well-qualified certificate was effective, the
Administration was operating with severe budget limita-
tions that impacted Region V’s ability to bring in FTEs
from other regions and its ability to secure relocation
expenses for individuals transferring within the region.
As a result, the individuals listed on the certificate
other than Mr. Poer could not be considered. Judge de la
Torre, consistent with long-standing Region V practice,
opted not to fill the position from such a limited field.
The SSA, therefore, was entitled to summary judgment
on Mr. Poer’s retaliation claim.
Conclusion
For the reasons set forth in the foregoing opinion, the
judgment of the district court is affirmed.
A FFIRMED
5-27-10