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In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1189

Gary Millbrook,

Plaintiff-Appellee,

v.

IBP, Inc.,

Defendant-Appellant.

Appeal from the United States District Court 
for the Central District of Illinois.
No. 98-4121--Michael M. Mihm, Judge. 

Argued September 20, 2001--Decided February 20, 2002


  Before Bauer, Manion, and Evans, Circuit
Judges.

  Manion, Circuit Judge.  Gary Millbrook,
a janitor at IBP, Incorporated, sued his
employer under Title VII and 42 U.S.C.
sec. 1981, alleging that IBP
discriminated against him on the basis of
his race eight times when it selected
other candidates to fill the position of
Quality Control Inspector. A jury
rejected seven of Millbrook's eight
discrimination claims, but concluded that
IBP had discriminated against Millbrook
on one occasion. The jury awarded
Millbrook $7,500 in pain and suffering,
$25,000 in lost wages, and $100,000 in
punitive damages. The district court also
ordered IBP to instate Millbrook as a
Quality Control Inspector and awarded him
attorney's fees. Both before and after
the jury verdict, IBP moved for judgment
as a matter of law. The district court
denied both motions. IBP appeals. We
reverse. 

I.

  Gary Millbrook began working as a
janitor at IBP's Joslin, Illinois plant
in November 1995. IBP is in the meat
processing business and is regulated by
the United States Department of
Agriculture ("USDA"). According to
Millbrook, he accepted the janitorial
position because he hoped to advance
within IBP to the position of Quality
Control Inspector, and eventually obtain
a position with the USDA.

  Quality Control Inspectors at IBP are in
charge of inspecting the processing of
carcasses and end-products, and assuring
that they meet the standards of the USDA,
IBP, and the customer. Quality Control
Inspectors are also responsible for
completing the paperwork required by the
USDA. While the position of Quality
Control Inspector is sought after, it is
also stressful because in policing the
product quality, the inspectors must
often confront production supervisors.
Accordingly, IBP seeks people with strong
communication skills. 

  IBP employs approximately forty Quality
Control Inspectors, with about twenty
inspectors working the daytime "A Shift"
and the other twenty working the
nighttime "B Shift." Shift A inspectors
report to Quality Control Supervisor
Roger Baylor, and B Shift inspectors
report to Audrey Jordan. Both Baylor and
Jordan were responsible for interviewing
candidates when Quality Control Inspector
positions became available. During 1996
and 1997, IBP authorized Baylor and
Jordan to make the final hiring decision,
with instructions to select the best
qualified applicant. 

  In January 1996, Millbrook applied for
the position of Quality Control
Inspector. IBP selected another candidate
for the position. Between 1996 and 1998,
Millbrook applied an additional nine
times for the position of Quality Control
Inspector, but on each occasion IBP
selected another applicant. On November
30, 1998, Millbrook sued IBP for race
discrimination under Title VII and
Section 1981, alleging that IBP
discriminated against him on eight of the
ten occasions that he applied for, and
was denied, the Quality Control Inspector
position; Millbrook admits that on the
other two occasions, the other applicants
were better qualified. 

  Millbrook's case was tried before a
jury. At trial, Millbrook presented
evidence concerning the qualifications of
the eight applicants selected over him
for the position of Quality Control
Inspector. Millbrook argued that he had
better qualifications than all of the
other applicants, but that IBP chose the
other applicants over him because he is
black. IBP argued in response that on
each occasion that Millbrook applied for
the position of Quality Control
Inspector, another applicant was better
qualified, and that it always selected
the best qualified candidate to fill the
vacancy. 

  At the close of evidence, IBP moved for
judgment as a matter of law, but the
district court denied its motion, sending
the case to the jury. On a verdict form
with specific interrogatories, the jury
rejected seven of Millbrook's eight
claims of race discrimination, but
concluded that IBP had discriminated
against Millbrook on the basis of race
when it selected DeWayne Harris over him
in June 1997. The jury awarded Millbrook
$7,500 in pain and suffering, $25,000 in
lost wages, and $100,000 in punitive
damages. After the jury verdict was
returned, IBP again moved for judgment as
a matter of law, but the district court
denied that motion as well. Millbrook
then moved for attorney's fees, and for a
court order directing IBP to instate him
as a Quality Control Inspector. The
district court granted Millbrook
attorney's fees and also ordered IBP to
fill the next Quality Control Inspector
vacancy with Millbrook.

  IBP appeals, arguing that it was
entitled to judgment as a matter of law
because Millbrook failed to present
sufficient evidence to support a verdict
of race discrimination. Alternatively,
IBP argues that Millbrook failed to
establish a right to punitive damages.
IBP also argues that the district court
erred in ordering Millbrook instated as
the next Quality Control Inspector.

II.

  On appeal, IBP first argues that the
district court erred in denying its
motion for judgment as a matter of law.
See Fed.R.Civ.P. 50(a). We review the
denial of this motion de novo, examining
the record as a whole to determine wheth
er the evidence presented, combined with
all reasonable inferences permissibly
drawn therefrom, was sufficient to
support the jury's verdict of race
discrimination. Collins v. Kibort, 143
F.3d 331, 335 (7th Cir. 1998). While
"[w]e will overturn a jury verdict for
the plaintiff only if we conclude that no
rational jury could have found for the
plaintiff," id., "a mere scintilla of
supporting evidence will not suffice."
Futrell v. J.I. Case, 38 F.3d 342, 346
(7th Cir. 1994).

  Initially, we stress that the only issue
on appeal is IBP's selection of Harris
over Millbrook in June 1997. While
Millbrook applied a total of ten times
for the position of Quality Control
Inspector, and while he sued alleging
race discrimination on eight of those ten
occasions, the jury rejected all of
Millbrook's claims except for the one
based on IBP's selection of Harris.
Millbrook does not appeal the jury's
verdict in favor of IBP on the other
seven counts. Therefore, the sole issue
on appeal is whether sufficient evidence
supports the jury's finding that IBP
discriminated against Millbrook on the
basis of race when it hired Harris over
him. 

  Before reviewing the evidence, we also
pause to clarify what "sufficiency of the
evidence" means following a trial in a
discrimination case. On appeal, both
parties frame the issue as whether
sufficient evidence supported a finding
that IBP's asserted reason for selecting
Harris over Millbrook--his superior
qualifications--was pretextual under the
McDonnell Douglas burden-shifting
framework. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).

  The indirect burden-shifting approach of
McDonnell Douglas is one method of
proving discrimination, and since
Millbrook does not purport to have direct
evidence of race discrimination, it is
the only method at his disposal. Under
this method, a Title VII plaintiff must
establish a prima facie case of unlawful
discrimination. "This may be done by
showing (i) that he belongs to a racial
minority; (ii) that he applied and was
qualified for a job for which the
employer was seeking applicants; (iii)
that, despite his qualifications, he was
rejected; and (iv) that, after his
rejection, the position remained open and
the employer continued to seek applicants
from persons of complainant's
qualifications," id. at 802, or that "the
position was filled with a person not in
the protected class." Gorence v. Eagle
Food Centers, Inc., 242 F.3d 759, 765
(7th Cir. 2001). After the plaintiff has
established a prima facie case, an
inference of discrimination exists. The
burden of production then shifts to the
defendant-employer to produce evidence of
a legitimate, nondiscriminatory reason
for its employment decision. Emmel v.
Coca-Cola Bottling Co. of Chicago, 95
F.3d 627, 629 (7th Cir. 1996). "Once this
burden of production is met, any
inference of discrimination evaporates.
To prove unlawful discrimination at this
stage, the plaintiff must demonstrate to
the jury that the reason proffered by the
employer was mere pretext, an explanation
designed to obscure the unlawful
discriminatory employment action." Id.

  In this case, both parties agree that
Millbrook presented a prima facie case of
race discrimination, and that IBP
responded with a legitimate non-
discriminatory explanation for its
selection of Harris. Therefore, on appeal
the parties focus on the issue of
pretext. However, once a trial is
complete and judgment rendered, the
burden-shifting framework of McDonnell
Douglas falls away: "Post-trial we
consider only whether the record supports
the resolution of the ultimate question
of intentional discrimination." Collins,
143 F.3d at 335. Accordingly, the
appropriate question on appeal is not
whether IBP's proffered reason for
rejecting Millbrook's application was
pretextual, but rather whether sufficient
evidence supports the jury's finding that
IBP discriminated against Millbrook
because he is black. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133,
148 (2000) ("The ultimate question is
whether the employer intentionally
discriminated, . . .").

  The question of pretext, however, can
still be relevant. As the Supreme Court
explained in Reeves, "a plaintiff's prima
facie case, combined with sufficient
evidence to find that the employer's
asserted justification is false, may
permit the trier of fact to conclude that
the employer unlawfully discriminated."
Id. at 148. In other words, if the
plaintiff proves at trial that the
defendant's proffered reason for its
employment decision was false, i.e.,
pretextual, that is "one form of
circumstantial evidence that is probative
of intentional discrimination, and it may
be quite persuasive." Id. But "[i]t is
not enough to disbelieve the employer;
the factfinder must believe the
plaintiff's explanation of intentional
discrimination." Id. Thus, as the Supreme
Court in Reeves stressed, the existence
of the prima facie case, coupled with
evidence of pretext, is not always enough
to satisfy the plaintiff's burden of
proving intentional discrimination. Id.
at 146-47 ("This is not to say that such
a showing by the plaintiff will always be
adequate to sustain a jury's finding of
liability. Certainly there will be
instances where, although the plaintiff
has established a prima facie case and
set forth sufficient evidence to reject
the defendant's explanation, no rational
factfinder could conclude that the action
was discriminatory.").

  Applying Reeves, we must first consider
whether Millbrook presented sufficient
evidence of pretext--not because that is
dispositive, but because if IBP's
asserted justification for selecting
Harris were pretextual, that could
constitute circumstantial evidence that
IBP intentionally discriminated against
Millbrook. From there, we review the
record as a whole to determine whether
the evidence in its entirety supports a
reasonable inference of race
discrimination. Id. at 148.

  Pretext "means a lie, specifically a
phony reason for some action." Russell v.
Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.
1995). The question is not whether the
employer properly evaluated the competing
applicants, but whether the employer's
reason for choosing one candidate over
the other was honest. Brill v. Lante
Corp., 119 F.3d 1266, 1273 (7th Cir.
1997). "'Pretext for discrimination'
means more than an unusual act; it means
something worse than a business error;
'pretext' means deceit used to cover
one's tracks." Clay v. Holy Cross Hosp.,
253 F.3d 1000, 1005 (7th Cir. 2001)
(internal citations omitted). Thus, even
if IBP's reasons for selecting Harris
over Millbrook were "mistaken, ill
considered or foolish, so long as [the
employer] honestly believed those
reasons, pretext has not been shown."
Jordan v. Summers, 205 F.3d 337, 343 (7th
Cir. 2000). 

  In this case, IBP stated that it
selected Harris over Millbrook because
Harris was more qualified, while
Millbrook argues that this explanation
was a lie. First, Millbrook contends that
the jury could reasonably conclude that
IBP lied about its reason for selecting
Harris because IBP provided a different
explanation at trial than it did during
the interview process. To support this
argument, Millbrook points to the comment
section of the Applicant Flow Log, which
the B Shift Manager, Audrey Jordan,
compiled when she interviewed Harris. On
the Applicant Flow Log, Jordan noted that
Harris had prior experience. This,
according to Millbrook, contradicted
IBP's proffered trial rationale--that
Harris was more qualified. But the
Applicant Flow Log does not purport to be
IBP's explanation of its hiring decision;
rather, the Flow Logs consist of
interview notes which the managers used
to record their impressions during the
interviews. Moreover, contrary to
Millbrook's position, there is nothing
inconsistent in IBP's trial position. At
trial, IBP explained that it selected
Harris because he was more qualified for
the position, and it then explained why
it believed Harris to be better
qualified--because Harris had prior
experience in quality control, possessed
superior communication skills, and
conveyed a confident demeanor. She
further explained that these attributes
would allow Harris to handle the
pressures of confronting production
supervisors. Rather than contradict the
trial testimony, the Application Flow Log
actually confirms IBP's assertion that it
believed Harris to be more qualified.

  Next, Millbrook points out that IBP
hired Harris over him even though Harris
did not submit a resume, whereas IBP
rejected numerous other candidates who
failed to submit a resume. On appeal, IBP
explains that it only required internal
applicants to submit resumes; candidates
who did not work at IBP were required to
complete a more extensive application
form. Because Harris was not a current
IBP employee, he needed to submit a
detailed application, but no resume was
required. However, as a current employee,
Millbrook was required to submit only a
resume. The evidence at trial confirms
that the applicants whom IBP rejected for
failing to submit a resume were current
employees, thus verifying IBP's
explanation of what appeared to be
disparate treatment. Therefore, contrary
to Millbrook's position, the fact that
IBP required him to submit a resume, but
not Harris, is not evidence of pretext.

  Millbrook next claims that "negative
subjective comments regarding other
African-American applicants" made by
Audrey Jordan and Roger Baylor on the
Application Flow Logs demonstrate their
racial bias. Specifically, Millbrook
points to interview notes such as "shows
no real interest," "no skills experience
pertaining to this position," "gave poor
and incomplete answers to questions," and
"lacks ability to answer questions
clearly."

  Initially, we note that "nothing in
Title VII bans outright the use of
subjective evaluation criteria." Sattar
v. Motorola, Inc., 138 F.3d 1164, 1170
(7th Cir. 1998). See also, Denney v. City
of Albany, 247 F.3d 1172, 1186 (11th Cir.
2001) ("It is inconceivable that Congress
intended anti-discrimination statutes to
deprive an employer of the ability to
rely on important criteria in its
employment decisions merely because those
criteria are only capable of subjective
evaluation.") (internal quotation
omitted). Rather, "[a] subjective reason
can constitute a legally sufficient,
legitimate, nondiscriminatory reason
under the McDonnell Douglas/Burdine
analysis." Denney, 247 F.3d at 1185
(internal quotation omitted). In fact,
"subjective evaluations of a job
candidate are often critical to the
decisionmaking process, and if anything,
are becoming more so in our increasingly
service-oriented economy. . . ." Id. at
1185-86 (internal quotations omitted).
Thus, "[a]bsent evidence that subjective
hiring criteria were used as a mask for
discrimination, the fact that an employer
based a hiring or promotion decision on
purely subjective criteria will rarely,
if ever, prove pretext under Title VII .
. . ." Id. at 1185. See also, Weihaupt v.
American Medical Ass'n, 874 F.2d 419, 429
(7th Cir. 1989) (the mere fact that an
employer's beliefs were based on
subjective factors fails to establish
that its assessment of employee's skills
was made in bad faith); Dorsch v. L.B.
Foster Co., 782 F.2d 1421, 1427 (7th Cir.
1986) (a "subjective qualification
assessment does not convert an otherwise
legitimate reason into an illegitimate
one"). 

  In this case, there is absolutely no
evidence that the subjective criteria IBP
considered in evaluating Millbrook and
other candidates served as a "mask for
discrimination." The subjective interview
comments Millbrook points to, while
negative, were all race-neutral.
Additionally, at trial, IBP provided
specific facts supporting its subjective
evaluation of Millbrook. For instance,
Jordan explained that she concluded that
Millbrook had poor communication skills
because he failed to make eye contract
during the interview and did not seem
confident in his answers. Moreover,
similar comments were made of white and
other non-black applicants, negating any
possible inference that the comments were
codes for race. Therefore, contrary to
Millbrook's position, the negative
comments do not create an inference of
pretext, but instead merely indicate that
the candidates were lacking traits needed
for the job, which explains why they were
not selected by IBP. See, e.g., Sattar,
138 F.3d at 1170.

  Next, Millbrook argues that the fact
that during 1996 and 1997 Audrey Jordan
(the supervisor who selected Harris
instead of him) did not hire any blacks
as Quality Control Inspectors creates an
inference of pretext. However, while
Millbrook focuses on 1996 and 1997, his
discrimination claims are based on the
years of 1996-1998, and the record
demonstrates that during 1998, Jordan
offered a position to a black candidate.
In any event, absent a "link between this
alleged discrimination and the employment
decisions which [the plaintiff] is
challenging, this evidence does not
assist the plaintiff." Sample v. Aldi,
Inc., 61 F.3d 544, 551 (7th Cir. 1995).
Moreover, the fact that no blacks were
hired during a two-year time frame is at
best anecdotal, and we have held that we
"cannot find discrimination on such a
thin basis." Kuhn v. Ball State Univ., 78
F.3d 330, 332 (7th Cir. 1996). Rather,
"[o]ur opinions emphasize the need to get
beyond a few comparison cases." Id.
Instead, "[w]hat a plaintiff in
[Millbrook's] position has to do is
subject all of the employer's decisions
to statistical analysis to find out
whether [race] makes a difference." Kuhn,
78 F.3d at 332. Millbrook did not present
a statistical analysis--he merely pointed
to the fact that he and another black
candidate were rejected, and that no
other blacks were hired in a two-year
time frame. Without knowing how many of
the forty Quality Control Inspector
positions became available during that
time frame, the number and race of the
candidates applying for those positions,
and the candidates' relative
qualifications, "[s]uch a list is next to
worthless." Id. See also, Odom v. Frank,
3 F.3d 839, 849 (5th Cir. 1993) (raw data
of age, race and location of persons
promoted from 1980-1993, "without more,
is not competent to prove anything").
Under these circumstances, the fact that
during a two-year time frame no blacks
were hired to fill an unknown number of
vacancies fails to create a reasonable
inference that IBP was lying when it
explained that it hired Harris over Mill
brook because it believed Harris to be
better qualified. 

  Finally, Millbrook argues that the jury
was allowed to view his qualifications
compared to Harris and "could easily have
concluded that Mr. Millbrook's college
education, significant management
experience, experience in the industry,
prior communication skills through his
job with Black Hawk College, his
exemplary personnel record and general
qualifications made him more qualified
than Mr. Harris." IBP responds that while
Millbrook had a college degree, it was in
an unrelated area--education--whereas
Harris had completed some relevant
college courses, including relevant
quality control management course work.
IBP further points out that while
Millbrook worked at IBP, his experience
as a janitor (and even as a janitor
supervisor at Black Hawk College) was
irrelevant to the position of Quality
Control Inspector. IBP also points out
that while Millbrook worked for another
meat packaging company, he only worked
there for nine months, and his job did
not include quality control
responsibilities. Additionally, that job
dated back to the 60's--long before new
USDA standards were implemented. Harris
on the other hand had prior-- and more
recent--work experience in quality
control, and had leadership skills from
serving as a sergeant in the Air Force
and acting as a platoon leader. Finally,
IBP contends that Millbrook's
communication skills were lacking and
given the confrontational nature of the
Quality Control Inspector position, it
was essential that applicants possess
superior communications skills. Harris
had those skills, as demonstrated by his
Communicator of the Year award from the
Air Force in 1995. 

  What we have here then are two qualified
applicants with varying credentials, and
different views as to which candidate is
best for the job. Millbrook argues that
when an employer asserts that it chose
another applicant over the plaintiff
because the selected candidate was more
qualified, the jury may return a verdict
of discrimination if, after reviewing the
applicants' relative qualifications, it
simply does not believe the employer's
assertion. 

  In support of his position, Millbrook
cites Emmel v. Coca-Cola Bottling Co. of
Chicago, 95 F.3d 627 (7th Cir. 1996), and
Bell v. Environmental Protection Agency,
232 F.3d 546 (7th Cir. 2000). At first
blush, language in both Emmel and Bell
appears to give some support to
Millbrook's position. Emmel, 95 F.3d at
633 ("Emmel's indirect case is built on
the evidence that she was more qualified
than at least some of those men
promoted," and while Coca-Cola presented
a legitimate non-discriminatory
explanation, "the jury did not have to
believe it."); Bell, 232 F.3d at 551
("The EPA cannot escape scrutiny merely
by claiming that they selected the most
qualified candidates," and a fact-finder
"could reasonably find that the EPA was
dishonest when it concluded that the
selectees were more qualified for the
promotions than the plaintiffs were."). 

  However, in both of those cases there
was evidence of discrimination in
addition to the differences in relative
qualifications. For instance, in Emmel,
in addition to the evidence of the
candidates' relative qualifications, the
plaintiff presented direct evidence of
discrimination, including testimony that
after she was passed over for the
promotions, Coca-Cola Vice President John
Walsh took her aside, stating "Let's
close the door and speak honestly. Karen,
you know, as we all know, they wanted men
in these positions . . . ." Emmel, 95
F.3d at 630. Emmel presented further
direct evidence including other
statements from top officers that "'they'
believed women had no role in upper management.'"
Id. at 632. Emmel also presented evidence
calling into question Coca-Cola's
proffered trial explanation for its
employment decision, namely its failure
to provide an explanation--other than the
obviously impermissible one that "they
wanted men in these position"-- and that
it was not until trial that Coca-Cola
justified its decision with a non-
discriminatory reason. Id. at 634-35.
Likewise, in Bell, the plaintiff
presented evidence in the form of "an
internal EPA document [which] suggests
that the EPA did not select the best
candidates." Bell, 232 F.3d at 551. Bell
also presented statistical evidence
supporting the plaintiff's claim of
discrimination./1 

  In sum, in both Emmel and Bell the
plaintiffs presented evidence of
discrimination beyond the relative
qualifications of the candidates. See
Emmel, 95 F.3d at 635; Bell, 232 F.3d at
554. However, absent such additional
evidence of discrimination, this court
has held that a jury verdict for the
employee cannot stand if the jury is
simply disagreeing with the company as to
who is best qualified. 

  For instance, in Lindale v. Tokheim
Corp., 145 F.3d 953 (7th Cir. 1998), the
plaintiff sought to sustain the jury's
verdict of sex discrimination based on
her comparative qualifications. We
reversed the district court's denial of
the employer's motion for judgment as a
matter of law, holding that "[t]he
comparison evidence is so weak in the
circumstances that it cannot by itself
support an inference of discrimination--
and there is virtually nothing else." Id.
at 957 (emphasis added). 

  Likewise, in Guerrero v. Ashcroft, 253
F.3d 309 (7th Cir. 2001), the plaintiff
sought to prove pretext based on a
comparison of the candidates'
qualifications. In that case, Antonio
Guerrero, an Hispanic FBI agent, sued the
Attorney General under Title VII for race
and national origin discrimination after
he was denied a promotion to a GS-14
level of one of the FBI's Organized Crime
Squads. Id. at 311. The FBI claimed that
it selected another candidate over
Guerrero because of deficiencies in
Guerrero's background as compared to the
agent who received the promotion. Id. at
314-15. The district court granted the
FBI summary judgment, concluding that
Guerrero had failed to present sufficient
evidence of pretext. Guerrero appealed,
arguing "that pretext becomes evident
when one compares his skill ratings to
those of other agents. Guerrero contends
that he had comparable, and in some
areas, notably drug investigation, more
extensive and recent experience than
other agents, yet was rated lower." Id.
at 314. This court rejected Guerrero's
invitation to reevaluate his credentials,
stating that "[w]e cannot second-guess
the appropriateness of this business
judgment," and holding that "we find no
evidence of pretext in them." Id. at 314-
15. Accordingly, we affirmed the grant of
summary judgment./2 Id. at 315.

  On the surface there appears to be some
tension between the holdings of Lindale
and Guerrero, and those of Emmel and
Bell. But there is a clear distinction.
In Emmel and Bell there was additional
evidence of discrimination, whereas in
Lindale and Guerrero the plaintiff's case
consisted solely of the competing
candidates' comparative qualifications.
Perhaps because the facts did not require
it, neither Lindale nor Guerrero on the
one hand, nor Emmel nor Bell on the
other, pointed out that distinction. In
fact, these two lines of cases appear to
have developed independently, leaving
unanswered in this circuit the question
as to when evidence of comparative
qualifications constitutes sufficient
evidence to support a jury verdict of
discrimination. We thus look to our
sister circuits for guidance.

  The Fifth Circuit in Deines v. Texas
Dept. of Protective and Regulatory
Services, 164 F.3d 277 (5th Cir. 1999),
reiterated that circuit's general rule
that "differences in qualifications
between job candidates are generally not
probative evidence of discrimination
unless those differences are so favorable
to the plaintiff that there can be no
dispute among reasonable persons of
impartial judgment that the plaintiff was
clearly better qualified for the position
at issue." Id. at 279. The court
specifically held that the district court
did not err when instructing the jury
that "disparities in qualifications are
not enough in and of themselves to demon
strate discriminatory intent unless those
disparities are so apparent as to
virtually 'jump off the page and slap you
in the face.'" Id. The court further
explained that 

apart from searching for discriminatory
intent, it is not the function of the
jury to scrutinize the employer's
judgment as to who is best qualified to
fill the position; nor is it the jury's
task to weigh the respective
qualifications of the applicants. Whether
the employer's decision was the correct
one, or the fair one, or the best one is
not a question within the jury's province
to decide. The single issue for the trier
of fact is whether the employer's
selection of a particular applicant over
the plaintiff was motivated by
discrimination.

Id. See also, Celestine v. Petro de
Venezuella SA, 266 F.3d 343, 356-57 (5th
Cir. 2001); Scott v. University of
Mississippi, 148 F.3d 493, 508 (5th Cir.
1998); EEOC v. Louisiana Office of
Community Service, 47 F.3d 1438, 1445
(5th Cir. 1995); Odom v. Frank, 3 F.3d
839, 847 (5th Cir. 1993).

  The Second, Tenth, Eleventh, and D.C.
Circuits have followed the Fifth
Circuit's lead. For instance, in Byrnie
v. Town of Cromwell, 243 F.3d 93, 103 (2d
Cir. 2001), the Second Circuit held that
"when a plaintiff seeks to prevent
summary judgment on the strength of a
discrepancy in qualifications, . . . [i]n
effect, the plaintiff's credentials would
have to be so superior to the credentials
of the person selected for the job that
'no reasonable person, in the exercise of
impartial judgment, could have chosen the
candidate selected over the plaintiff for
the job in question.'" Id. at 103
(quoting Deines, 164 F.3d at 280-81).
Similarly, in Lee v. GTE Florida, Inc.,
226 F.3d 1249 (11th Cir. 2000), the
Eleventh Circuit held that the "evidence
[was] insufficient to raise a genuine
issue of fact regarding whether [the
employer's] stated reason for promoting
[the other candidate] instead of [the
plaintiff] is pretextual. None of
[plaintiff's] proffered evidence
established that she was more qualified
than [the other candidate], let alone so
clearly more qualified for the position
than [plaintiff] that a reasonable juror
could infer discriminatory intent from
the comparison." Id. at 1255. See also,
Denney v. City of Albany, 247 F.3d 1172,
1187 (11th Cir. 2001) ("Our precedent,
however, requires a strong showing of a
disparity in qualifications in order for
an inference of discrimination to
arise."); Alexander v. Fulton County, 207
F.3d 1303, 1339 (11th Cir. 2000) ("In a
failure to promote case, however, a
plaintiff cannot prove pretext by simply
arguing or even by showing that he was
better qualified than the officer who
received the position he coveted.").
Likewise, in Simms v. Oklahoma ex rel.
Department of Mental Health and Substance
Abuse Services, 165 F.3d 1321 (10th Cir.
1999), the Tenth Circuit held that
"[w]hen two candidates are equally
qualified in that they both possess the
objective qualifications for the position
and neither is clearly better qualified,
it is within the employer's discretion to
choose among them so long as the decision
is not based on unlawful criteria." Id.
at 1330. The D.C. Circuit adopted a
similar standard in Fischbach v. District
of Columbia Department of Corrections, 86
F.3d 1180 (D.C. Cir. 1996): "Evidence in
dicating that an employer misjudged an
employee's performance or qualifications
is, of course, relevant to the question
whether its stated reason is a pretext
masking prohibited discrimination, if the
employer made an error too obvious to be
unintentional, perhaps it had an unlawful
motive for doing so." Id. at 1183
(internal citation omitted).

  This standard--first set forth by the
Fifth Circuit, and since followed by four
other circuits--is appropriate.
Accordingly, we now hold that where an
employer's proffered non-discriminatory
reason for its employment decision is
that it selected the most qualified
candidate, evidence of the applicants'
competing qualifications does not consti
tute evidence of pretext "unless those
differences are so favorable to the
plaintiff that there can be no dispute
among reasonable persons of impartial
judgment that the plaintiff was clearly
better qualified for the position at
issue." Deines, 164 F.3d at 279. In other
words, "[i]n effect, the plaintiff's
credentials would have to be so superior
to the credentials of the person selected
for the job that 'no reasonable person,
in the exercise of impartial judgment,
could have chosen the candidate selected
over the plaintiff for the job in question.'"
Byrnie, 243 F.3d at 103 (quoting Deines,
164 F.3d at 280-81).

  This makes sense because a court's "role
is to prevent unlawful hiring practices,
not to act as a 'super personnel
department' that second-guesses
employers' business judgments." Simms,
165 F.3d at 1330. As we have stated,
"[n]o matter how medieval a firm's
practices, no matter how high-handed its
decisional process, no matter how
mistaken the firm's managers, [Title VII]
does not interfere." Mechnig v. Sears,
Roebuck & Co., 864 F.2d 1359, 1365 (7th
Cir. 1988) (internal quotation omitted).
Rather, this "court must respect the
employer's unfettered discretion to
choose among qualified candidates."
Fischbach, 86 F.3d at 1183. If we were to
allow a jury to evaluate competing
credentials to determine whether the
employer's assertion that it selected the
best candidate was pretextual, the jury
would in most cases be replacing the
employer's personnel department. Yet
neither the judge nor the jury is "as
well suited by training and experience to
evaluate qualifications for high level
promotion in other disciplines as are
those persons who have trained and worked
for years in that field of endeavor for
which the applications under
consideration are being evaluated." Odom,
3 F.3d at 847. 

  This standard is also consistent with
our frequent admonitions "that a
plaintiff's own opinions about her work
performance or qualifications do not
sufficiently cast doubt on the legitimacy
of her employer's proffered reasons for
its employment actions." Ost v. West
Suburban Travelers Limousine, Inc., 88
F.3d 435 (7th Cir. 1996). Similarly, we
have held that mere "submission of
materials from a co-worker or supervisor
indicating that an employee's performance
is satisfactory does not . . . create a
material issue of fact." Anderson v.
Baxter Healthcare Corp., 13 F.3d 1120,
1125 (7th Cir. 1994). A plaintiff's
contention that he is the better
candidate for a vacancy constitutes
nothing but the employee's own opinion as
to his qualifications. This cannot create
an issue of material fact because "[a]n
employee's perception of his own
performance . . . cannot tell a
reasonable factfinder something about
what the employer believed about the
employee's abilities." Olsen v. Marshall
& Ilsley Corp., 267 F.3d 597, 602 (7th
Cir. 2001). "And without proof of a lie
[as to what the employer believed] no
inference of discriminatory motive can be
drawn." Id.

  Finally, this standard is consistent
with the plaintiff's ultimate burden of
proof in discrimination cases. Such a
plaintiff cannot get to a "jury if his
only 'evidence' had been that defendants'
witnesses were not worthy of belief. That
would have made it a no-evidence case,
and such a case a plaintiff must lose,
because he has the burden of proof."
Equal Employment Opportunity Commission
v. G-K-G, Inc., 39 F.3d 740, 746 (7th
Cir. 1994) (internal citations omitted).
Rather, "to avoid a directed verdict or a
JNOV, a plaintiff must do more than
merely argue that the jury might have
chosen to disbelieve all of the
defendant's evidence. . . . A plaintiff
must offer substantial evidence to
support the argument." Perfetti v. First
National Bank of Chicago, 950 F.2d 449,
456 (7th Cir. 1991) (internal quotations
omitted). Thus, "[a] party cannot meet
its burden of proof 'by relying on the
hope that the jury will not trust the
credibility of the witnesses. . . .'" Id.
(internal citation omitted). Yet that is
exactly what Millbrook attempts; he seeks
to justify the jury verdict based on his
contention that the jury could have
disbelieved IBP's assertion that it
selected Harris because of his superior
qualifications. However, without some
affirmative evidence calling into
question IBP's credibility, Millbrook
must lose. See also, Fischbach, 86 F.3d
at 1183 ("Title VII liability cannot rest
solely upon a judge's determination that
an employer misjudged the relative
qualifications of admittedly qualified
candidates."). Thus, to reconcile this
precedent, we must adopt the standard
that we have today--that comparative
qualifications do not support a finding
of pretext--or we would be allowing
plaintiffs to reach the jury based solely
on a claim that the employer cannot be
believed. We have consistently rejected
such claims. See, e.g., Massey v. Blue
Cross-Blue Shield of Illinois, 226 F.3d
922, 926 (7th Cir. 2000) ("It is always
possible, of course, that the jury might
have disbelieved everything [the
employer] said, but we routinely deny
summary judgments based on that kind of
hope, and consistency requires us also to
reject that possibility as a way of
saving the jury's verdict."). 

  Applying this standard to the facts at
hand, we note initially that it is a
close question as to whether Millbrook's
qualifications are equivalent to or
exceed those of Harris. While Millbrook
had a college education, his degree was
in an unrelated field, education, and
Harris had completed some college course
work in the relevant area of management.
Harris also had experience in quality
control, whereas Millbrook did not.
Harris' tour of duty with the military is
also a credential highly valued by many
employers because of the discipline,
respect, work ethic, and many other
valuable virtues military service
instills. And, during his time with the
Air Force, Harris demonstrated his
communication skills, as documented by
his Communicator of the Year Award. IBP
explained that it sought out candidates
with such qualifications because Quality
Control Inspectors must possess superior
communication skills given the
confrontational nature of the position.
But, even assuming that Millbrook was
better qualified than Harris, his
credentials were not clearly superior,
and therefore a reasonable employer could
have concluded that Harris was the better
person for the job. Accordingly, a
comparison of the relative qualifications
of Millbrook and Harris is by itself not
probative of pretext./3

  In sum, none of the evidence Millbrook
cites as evidence of pretext supports a
reasonable inference that IBP lied when
it explained its rationale for selecting
Harris--his superior qualifications./4
While Millbrook believes the jury should
be allowed to review the candidates'
relative qualifications to decide whether
or not IBP lied, without any evidence
calling into question IBP's veracity,
what this case really comes down to is
the jury deciding which applicant is more
qualified. But believing or not believing
the decisionmaker is simply saying that
the employer made the wrong choice--which
is not illegal. Because there is no
evidence of pretext, Millbrook has failed
to create an inference that IBP
intentionally discriminated against him
by hiring Harris. 

  Moreover, even if we were to assume that
the above evidence constituted evidence
of pretext, under Reeves, that would not
end the inquiry. As Reeves made clear,
the existence of the prima facie case,
coupled with evidence of pretext, is not
always enough to satisfy the plaintiff's
burden of proving intentional
discrimination. Rather, "an employer
would be entitled to judgment as a matter
of law . . . if the plaintiff created
only a weak issue of fact as to whether
the employer's reason was untrue and
there was abundant and uncontroverted
independent evidence that no
discrimination had occurred." Reeves, 530
U.S. at 148.

  In this case, assuming that Millbrook
presented evidence of pretext, at best he
"created only a weak issue of fact as to
whether the employer's reason was
untrue." Id.  There is absolutely no
other evidence of intentional discrimina
tion--not one racist comment, nor any
harassment. Millbrook admitted at trial
that no one at IBP made any comments
indicating that race played a factor in
its selection of Quality Control
Inspectors. In fact, of the 443 pages of
trial transcript, less than five full
pages focused on the selection of Harris
over Millbrook. In short, Millbrook has
no proof that IBP denied him a promotion
because of his race. The case he
presented is simply not enough under
Reeves to sustain a jury verdict in his
favor, even if some evidence of pretext
had existed. 

  In a final attempt to salvage a victory,
Millbrook points out that IBP has a
"Herculean burden" to overcome a jury
verdict. Gile v. United Airlines, Inc.,
213 F.3d 365, 372 (7th Cir. 2000). While
it is true that it is difficult to set
aside a jury verdict, our review of the
evidence is not a rubber stamp of a
jury's decision. Notwithstanding this
standard of mythical proportions, we have
overturned jury verdicts in
discrimination cases very similar to the
case at hand. 

  For instance, in Shank v. Kelly-
Springfield Tire Company, 128 F.3d 474
(7th Cir. 1997), a jury returned a
verdict of age discrimination in favor of
Robert Shank, who sued his former
employer, Kelly-Springfield Tire Company,
after he was fired. Kelly-Springfield
maintained that it had fired Shank
because Shank had filed a fraudulent
claim for a refund in violation of
company policy. A jury, however, rejected
that explanation. Kelly-Springfield then
moved for judgment as a matter of law,
but the district court denied that
motion. On appeal, this court reversed,
concluding that Shank failed to present
sufficient evidence of age discrimination
to support the jury's verdict.

  Shank, like Millbrook, argued that the
jury could have inferred that Kelly-
Springfield fired him because of his age
if it disbelieved the company's proffered
explanation for its employment decision.
Id. at 478. However, after reviewing the
evidence in its entirety, we concluded
that none of the evidence Shank presented
to demonstrate pretext called into
question the veracity of the company's
explanation. Id. at 480. While Shank
argued that the jury could have inferred
that Kelly-Springfield had lied about its
reason for firing Shank, we concluded
that without some evidence supporting
that inference, a jury verdict could not
stand. Accordingly, we held that Kelly-
Springfield was entitled to judgment as a
matter of law. Id. Similarly, in this
case, without any evidence that IBP lied
about its reason for selecting Harris and
without any other evidence of
discrimination, IBP was entitled to
judgment as a matter of law. 

  Shank is just one of the many cases
where we have overturned a jury verdict
because of insufficient evidence,
demonstrating that the Herculean burden
of which we spoke does not protect
plaintiffs lacking in evidence. Shank,
128 F.3d 474. See also, Aungst v.
Westinghouse Electric Corp., 937 F.2d
1216 (7th Cir. 1991) (affirming district
court's decision granting defendant
judgment as a matter of law because
plaintiff failed to present sufficient
evidence of pretext to sustain jury
verdict of age discrimination); Massey v.
Blue Cross-Blue Shield of Illinois, 226
F.3d 922 (7th Cir. 2000) (district court
properly granted defendant judgment as a
matter of law because plaintiff failed to
present sufficient evidence that
employer's legitimate nondiscriminatory
reasons for her discharge--her poor
writing skills and inability to
investigate and follow through--were
pretextual)./5 As in these cases,
Millbrook failed to present sufficient
evidence of intentional discrimination,
and therefore the jury verdict cannot
stand.

III.

  Hiring decisions are often difficult and
sometimes require companies to make close
calls, but those decisions are for the
employer to make--not the court and not
the jury--unless there is evidence of
illegal discrimination. In this case,
Millbrook presented absolutely no direct
evidence of race discrimination, and
while he attempted to rely on an
inference of discrimination by
challenging IBP's explanation for its
selection of Harris, he failed to present
any evidence calling into question the
veracity of IBP's explanation. While
Millbrook may believe he was more
qualified than Harris (indeed, even if he
were arguably the better choice), Title
VII is not a merit selection program.
Absent evidence that no reasonable
employer could believe that it selected
the best candidate, we will defer to the
employer's decision. Because Millbrook
was not clearly more qualified than
Harris, their relative qualifications
cannot serve as a basis for sustaining
the jury's verdict. Rather, we are left
with a case where there is no evidence of
intentional race discrimination, and
therefore IBP was entitled to judgment as
a matter of law. Because IBP was entitled
to judgment as a matter of law, Millbrook
was not entitled to any damages, much
less punitive damages, and the award of
attorney's fees, costs, and instatement
also cannot stand. Accordingly, we
REVERSE.

FOOTNOTES

/1 Similarly, in Perdomo v. Browner, 67 F.3d 140
(7th Cir. 1995), upon which Bell relied, while
this court noted that a fact-finder could weigh
and balance the plaintiff's credentials and
qualifications against those of the selected
candidate to determine whether the employer's
claim that it hired the best candidate was pre-
textual, that case also involved additional
evidence of discrimination. Id. at 146.

/2 While Guerrero involved a grant of summary judg-
ment, as opposed to judgment as a matter of law,
that distinction is irrelevant because the stan-
dards mirror each other. Reeves, 530 U.S. at 150.

/3 See, e.g., Byrnie, 243 F.3d at 102-03 (while
plaintiff's paper credentials were superior to
the chosen candidate's, plaintiff's credentials
were not so superior such that no reasonable
employer could have selected the candidate it
did); Lee, 226 F.3d at 1255 ("Since [plaintiff's]
evidence at trial fell far short of establishing
that she was clearly more qualified for the
position than [the selected candidate, the plain-
tiff] did not meet her burden of establishing
that [the employer's] proffered reason for deny-
ing her the promotion was a pretext for gender
discrimination."); Denney, 247 F.3d at 1187 ("Not
only do Plaintiffs fail to acknowledge this case
law, which makes clear that they ultimately must
do more to show pretext than prove that they were
better qualified than [the selected candidates],
but they also fail to make a persuasive showing
that they are, in fact, better qualified.");
Celestine, 266 F.3d at 357 ("A review of the
briefs and record excerpts reveals that none of
the [plaintiffs] presented competent summary
judgment evidence that they were 'clearly better
qualified' for promotion or training. They there-
fore failed to even attempt to rebut [the employ-
er's] proffered non-discriminatory explanation,
making the grant of summary judgment to [the
employer] proper."); Odom, 3 F.3d at 846-47
(district court's finding that plaintiff was
"clearly better qualified" for position consti-
tuted clear error); Scott, 148 F.3d at 509 ("In
sum, we conclude that [the plaintiff's] qualifi-
cations are not 'so superior' to those of [the
chosen candidate] to allow an inference of pre-
text.") (internal quotation omitted). 

/4 While Millbrook asserted four other evidential
theories of pretext beyond Harris and his rela-
tive qualifications, as discussed above, that
evidence failed to create a reasonable inference
that IBP lied when it explained why it hired
Harris. See supra at 8-11. Adding those four
pieces of evidence with the comparative qualifi-
cation evidence does nothing for Millbrook be-
cause the sum of many nothings is nothing. See
Holmberg v. Baxter Healthcare Corp., 901 F.2d
1387, 1391 (7th Cir. 1990) ("[T]he sum of four
nondiscriminatory episodes does not support [a]
case any more than viewing the four episodes sep-
arately.").

/5 Cf., Rand v. CF Indust. Inc., 42 F.3d 1139 (7th
Cir. 1994) (defendant-employer entitled to summa-
ry judgment because plaintiffs failed to present
sufficient evidence of pretext); Olsen v. Mar-
shall & Ilsley Corp., 267 F.3d 597 (7th Cir.
2001) (accord); Kuhn v. Ball State University, 78
F.3d 330 (7th Cir. 1996) (accord); Jordan v.
Summers, 205 F.3d 337 (7th Cir. 2000) (accord).




  EVANS, Circuit Judge, dissenting.  I respectfully
dissent. A jury listened to evidence of eight
instances in whichMillbrook failed to receive a
promotion. He claimed the rejections were because
of his race; the company contended that in each
instance the candidate promoted was better quali-
fied. A properly instructed jury looked at this
evidence and concluded, apparently, that in seven
of the cases Millbrook had not met his burden of
proof; the person promoted could be seen as
better qualified. In the eighth, the jury found
that discrimination was afoot. In this appeal of
that verdict, the issue, according to the majori-
ty, is whether Millbrook was so notably better
qualified than Harris that, absent other evi-
dence, the choice to hire Harris over promoting
Millbrook must have been discriminatory.

  Discrimination today is rarely overt. Sometimes
it works underground. It is often very subtle. In
today's environment, it is unfair to require
plaintiffs to produce smoking guns. So, in a case
like this, how much additional evidence are we
going to require to bolster the claim of a
marginally better, or at least equally qualified,
plaintiff who claims discrimination stopped him
from getting a promotion? And here, I question
whether it is fair to say that, in fact, there
was an absence of other evidence. The jury had a
broad view of the company's actions as it related
to eight employment decisions, not just one. It
had evidence, for instance, that no African-
Americans were hired in relevant positions in a
2-year period during 1996 and 1997. I believe
that there was sufficient evidence to allow a
reasonable jury to conclude that overall the
company consistently chose the white candidate,
and that in the case of Harris (who, unlike the
other seven, may not have seemed to the jury to
be the better candidate), the company's claim
that it picked the better candidate without
regard to race was a pretext to cover discrimina-
tory behavior.

  During the course of a trial, jurors listen to
witnesses, pass judgment on their credibility,
and, in this kind of case, absorb something about
the culture of a company; they are pretty good at
bringing their common sense to bear on questions
of human behavior. This is what juries are for,
and in the close case, as this one indisputably
is, the jury's judgment should be respected
unless no reasonable person could have found as
it did. And this jury, it seems, was so convinced
that racial discrimination prevented Millbrook
from getting the promotion that it tacked on, in
its discretion, an award of punitive damages.
Accordingly, I would not disturb the jury's
verdict.