Guerrero, Antonio v. Ashcroft, John ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3306
Antonio Guerrero,
Plaintiff-Appellant,
v.
John Ashcroft,/1 Attorney General
of the United States,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 864--Rebecca R. Pallmeyer, Judge.
Argued February 15, 2001--Decided June 13, 2001
Before Bauer, Kanne,/2 and Rovner,
Circuit Judges.
Bauer, Circuit Judge. Antonio Guerrero,
an Hispanic FBI agent, sued the Attorney
General under Title VII for disparate
treatment based on race and national
origin. The district court granted
summary judgment for the Attorney
General, finding that Guerrero failed to
create a factual issue regarding the
FBI’s business reasons for declining to
promote him. We affirm the district
court.
I. Background
Guerrero applied for a promotion to a
GS-14 level supervisor of one of the
FBI’s Organized Crime Squads ("OC-3
Squad") in the Chicago division in 1997.
The twenty-person squad investigates non-
traditional organized crime. The FBI
posted the job opening which stated in
relevant part:
Candidate selected will be expected to
maintain effective liaison with a large
number of local, state and federal law
enforcement agencies. As Squad OC-3 is
touted as the repository for intelligence
regarding international criminal
enterprises, effective liaison is
critical. Selectee will be expected to
continue the employment of sophisticated
investigatory techniques such as
consensual monitoring, Title III’s,
UCO’s, and proactive investigative
strategies to combat significant crime
problems. Due to the burgeoning problem
in Chicago of Nigerian heroin trafficking
organizations, candidates should be well
versed in drug investigations; be fully
experienced in the CIP; have proven track
record of developing major cases using a
proactive and task force approach.
Emphasis will be placed on strong
leadership, interpersonal and
administrative skills. . . . (Candidates
must have at least 3 years FBI
investigatory experience . . . and relief
supervisory (preferably principal relief)
experience.
Four agents applied for the OC-3 job:
Guerrero, Gabe Casanova, an Hispanic
agent, Thomas Bourgeois, a white agent,
and William Wong, an Asian agent.
The FBI was fortunate to have four
highly qualified applicants. Guerrero
served as a police officer for seven
years and as an agent in the FBI for
twelve years before applying for the OC-3
promotion. During his FBI tenure,
Guerrero built a record of exceptional
performance and received numerous awards.
From 1984 to 1988, Guerrero conducted
drug investigations and performed other
related duties for the FBI’s El Paso,
Texas division. In 1998, Guerrero
transferred to the Chicago division,
where he worked in the Mexican Drug
Traffickers Squad. Guerrero accepted a
promotion to the Squad’s relief
supervisor and also assisted with
investigations into Asian drug
trafficking. Two years later, in 1990,
Guerrero transferred to the Drug
Intelligence Squad where he continued to
serve as a relief supervisor and was
promoted to principal relief supervisor.
Guerrero coordinated joint investigations
with the DEA. He then transferred to the
Organized Crime Drug Enforcement Task
Force where he: acted as the principle
relief supervisor; recruited and
debriefed informants; acted as an
undercover agent; conducted interviews,
arrests and surveillance; engaged in
controlled buys; and executed search
warrants. Further, he acted as the
informant coordinator, a job he accepted
because his supervisor told him it could
lead to a promotion. In 1994, Guerrero
became the team leader and relief
supervisor of the Forfeiture Team. In
1995, Guerrero assumed the duty of
coordinating the Chicago Law Enforcement
Intelligence Center, chairing twice-
weekly meetings among 15 agencies for the
exchange of intelligence information.
The Chicago division was sufficiently
impressed with Guerrero’s performance in
the Forfeiture Team that it asked him to
head all the division’s forfeitures,
which required supervising paralegals,
but no agents. After assurances from his
supervisors that the transfer would not
hurt his changes of being promoted to a
GS-14 level position, Guerrero accepted.
He excelled in the position. His program
became the model for others in the
Chicago division and Guerrero himself was
tapped to train program coordinators
around the country. Guerrero was working
as Forfeiture Coordinator when he applied
for the OC-3 position.
Casanova was the acting supervisor with
the Intelligence Squad. Between 1981 and
1986, he worked on drug investigations in
Chicago. Bourgeois’s experience since
1986 was concentrated in traditional
organized crime and corruption
investigations. He also developed some
operational techniques, served as lead
agent on major cases, and acted as the
principal relief for his squad. Wong had
worked in the OC-3 Squad since 1986, and
was the principle relief supervisor in
1997. He had experience dealing with
complex cases.
In selecting the candidate to promote,
the FBI followed highly structured
procedures. The Career Board solicited
r sum s from and conducted interviews
with each of the applicants, asking all
applicants the same questions. Using a
matrix form, the Board evaluated the
candidates by rating their experience in
the skill areas the OC-3 position
required. The skill ratings were, in
order of descending value, "outstanding,"
"excellent," "superior," and "limited."
The Career Board rated as "limited"
Guerrero’s experience with drug
investigation, sophisticated
investigatory techniques, and leadership
skills, as well as his overall
accomplishments with the FBI. It rated
his liaison experience as "excellent," an
area in which he shared the highest score
with Bourgeois. The Career Board also
provided a narrative explanation of each
candidate’s ratings. Overall, the Career
Board ranked Bourgeois first, Wong
second, and Casanova third. Explaining
its ranking of Guerrero, members of the
Career Board recognized his good
performance, but stated that Guerrero’s
experience was administrative rather than
investigative or operational. Further,
they believed that Guerrero had
overstated his success in the forfeiture
program because his increase in
collections was partially due to
developments in the law. The Special
Agent in Charge ("SAC") of the Chicago
office considered the Career Board’s
recommendation and decided to recommend
agent Wong. The SAC did not comment on
Guerrero’s skills, but explained that he
recommended Wong for the job because Wong
already worked on the OC-3 squad and the
SAC wanted to reward Wong’s good work.
Given the SAC’s choice, the Career Board
decided to swap its first and second
choices, recommending Wong as its top
pick and moving Bourgeois to second.
These recommendations went to the
national Special Agent Mid-Level
Management Selection Board ("SAMMS
Board") which decides who to promote,
relying heavily on the recommendations of
the Career Board and SAC. In this case,
the SAMMS Board promoted Wong.
Believing himself to be the victim of
discrimination, Guerrero completed the
required procedures with the EEOC and
sued the FBI for declining to promote him
based on his race and national origin in
violation of Title VII. He hired an
expert whose statistical analysis tended
to show that the FBI discriminated
against Hispanic and Black officers when
it decided who to promote to GS-14 level
positions in the Chicago office.
The FBI moved for summary judgment,
admitting that Guerrero established a
prima facie case of discrimination, but
arguing that it had nondiscriminatory
reasons declining to promote Guerrero.
Guerrero argued that the proffered
reasons constituted pretext. The district
court held that Guerrero established a
prima facie case and that the FBI
countered with legitimate business
reasons for declining to promote him. The
court then granted summary judgment in
favor of the FBI on the grounds that
Guerrero failed to raise a genuine issue
of fact regarding the FBI’s proffered
reasons for its decision.
II. Discussion
We review the district court’s grant of
summary judgment de novo and draw all
reasonable inferences in favor of
Guerrero, the non-moving party. See Bell
v. E.P.A., 232 F.3d 546, 549 (7th Cir.
2000). We will affirm the grant of
summary judgment only if there is no
genuine issue as to any material fact and
if the moving party, the Attorney
General, is entitled to judgment as a
matter of law. See id. Guerrero has
appropriately proceeded under the
McDonnell-Douglas burden shifting test.
Because we believe that Guerrero proved
his prima facie case, see Brill v. Lante
Corp., 119 F.3d 1266, 1270 (7th Cir.
1997) (discussing prima facie elements in
a failure to promote context), we focus
on the second and third steps of the
test: whether the FBI has proffered
legitimate business reasons for its
decision, and whether Guerrero has
marshaled evidence that could lead a
reasonable trier of fact to reject those
reasons as pretextual. See Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.
Ct. 2097, 2108-09 (2000); McDonnell
Douglas Corp. v. Green, 411 U.S. 792,
802, 804 (1973).
A. Guerrero’s Evaluations
The FBI asserts six business reasons
explaining why it opted not to promote
Guerrero: (1) the OC-3 position
prioritized "street" skills above
administrative skills like those Guerrero
possessed; (2) Guerrero lacked pertinent
leadership experience; (3) Guerrero
lacked recent drug investigation
experience; (4) Guerrero lacked recent
relief supervisor experience; (5)
Guerrero lacked recent experience
withsophisticated investigatory
techniques; and (6) Guerrero overstated
his success in the forfeitures program.
Guerrero discounts these reasons as
pretext. To prevail, Guerrero must raise
triable issues of fact as to all six
rationales because the FBI needs but one
legitimate reason for its decision not to
promote Guerrero. See Mills v. Health
Care Serv. Corp., 171 F.3d 450, 459 (7th
Cir. 1999).
Creating a triable pretext issue with
indirect evidence is a difficult task
which may be accomplished in one of two
ways. The plaintiff must show either that
the employer lied about why it opted not
to promote him, see Reeves, 120 S. Ct. at
2108-09, or that the employer’s reasons
have no basis in fact. See Velasco v.
Illinois Dep’t of Human Services, 246
F.3d 1010, 1017 (7th Cir. 2001); Jordan
v. Summers, 205 F.3d 337, 343 (7th Cir.
2000) (citations omitted). Guerrero
wisely uses both available options.
Guerrero’s arguments boil down to two
theories: (1) that the FBI lied about its
reasons because after seeking applicants
with administrative experience, it
conveniently emphasized the operational
nature of the OC-3 position when
evaluating the candidates; and (2) that
the Career Board’s egregious
mischaracterization of Guerrero’s
operational experience both lacks a basis
in fact and evidences that even the FBI
could not have believed its own
evaluation.
There is a fundamental disagreement
between Guerrero and the FBI regarding
whether the OC-3 position emphasized
administrative or operational skills.
Quoting the job description, Guerrero
argues that administrative skills were
paramount, while the FBI argues
operational skills were more important.
Reviewing the job description in the
light most favorable to Guerrero, it is
clear that the job demanded both
administrative and operational skills.
That the FBI eventually based its
promotion decision on the candidates’
operational skills, specifically those
listed in the job description, is
legitimate. Further, we cannot conclude
that the Career Board and SAC did not
take the candidates’ administrative
skills into account. A reasonable trier
of fact could not find pretext based on
the FBI’s operational focus.
Guerrero next contends that the Career
Board mischaracterized his operational
experience so egregiously, especially in
comparison to its evaluation of the other
candidates, that it is impossible for the
its evaluation to be based in fact or for
the Career Board or SAC to sincerely
believe it. Specifically, Guerrero
challenges as pretextual the Career
Board’s conclusion that his drug
investigation experience, leadership
skills, sophisticated investigatory tech
niques and relief supervisory experience
was "limited." As we examine Guerrero’s
evaluation, we are mindful that we are
not a super-personnel board, see Bell,
232 F.3d at 550, and that we may not
punish an employer for choices that
constitute business decisions alone, no
matter how unwise or mistaken they may
seem to us. See Reeves, 120 S. Ct. at
2108-09; Kulumani v. Blue Cross Blue
Shield Ass’n, 224 F.3d 681, 685 (7th Cir.
2000); Jordan, 205 F.3d at 343. Rather,
Guerrero must provide some evidence that
the FBI’s rationale for declining to
promote him is a sham or is not based in
fact.
The Career Board made its recommendation
based on application files and
interviews. During its evaluations, the
FBI placed great emphasis on the recency
of the candidates’ skills experience.
Guerrero applied for the OC-3 promotion
from the mainly administrative position
of Forfeiture Coordinator, which made
some of his operational skills dated.
Guerrero’s leadership experience in this
position was mainly administrative,
consisting primarily of coordinating
office workers rather than agents and
coordinating communications between
agencies rather than directing
investigatory agents. In the forfeiture
position, Guerrero did not conduct drug
investigations, engage in sophisticated
investigatory techniques, or serve as a
relief supervisor. In contrast, higher-
rated agents Wong and Bourgeois held
operational positions in which they used
investigatory skills.
Guerrero argues 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. In the drug investigation
area, Wong and Casanova had more recent
experience than Guerrero and received a
better rating. Guerrero points out that
Bourgeios’s drug investigation experience
was the most dated, yet Bourgeois
received a higher rating than Guerrero.
The Career Board stated in its
explanation of the ratings that it
believed some of Bourgeois’s experience
investigating organized crime was
pertinent to his drug investigatory
skills, and took account of it
accordingly. We cannot second-guess the
appropriateness of this business
judgment. Similarly, the Career Board
explained its ratings for the other
skills categories and we find no evidence
of pretext in them.
The FBI also claims that it opted not to
promote Guerrero because he overstated
his success in the Forfeiture Coordinator
position. Immediately prior to Guerrero’s
appointment as Forfeiture Coordinator,
the FBI was prohibited by law from
engaging in forfeiture procedures. The
Supreme Court made the forfeitures
available in 1996, shortly before
Guerrero assumed the position of
Forfeiture Coordinator. Some Career Board
members believed that due to these
circumstances, Guerrero exaggerated his
role in boosting the FBI’s forfeiture
collections. As before, Guerrero does not
create an issue of fact regarding whether
this perception was based in fact or
whether the Career Board members truly
believed it.
Guerrero also contends that the SAC’s
recommendations were suspect and can
constitute evidence of pretext. The SAC
decided to recommend Wong because Wong
was then the relief supervisor for the
OC-3 squad. Guerrero notes that neither
he nor Casanova received such a
preference when they applied to be
promoted within the squads they served as
relief supervisors. The FBI never
guaranteed any the promotion of any
relief supervisor. Given that this attri
bute is among many the FBI evaluated, it
is not surprising that it could genuinely
be dispositive in some cases, but not in
others. Further, no evidence tends to
show that the SAC is lying about his
motivation for recommending Wong rather
than Guerrero. Because we find no issue
as to pretext, we cannot accept
Guerrero’s invitation to levy Title VII
liability.
B. Pattern and Practice of
Discrimination
To bolster his pretext argument,
Guerrero argues that the Career Board and
SAC have engaged in a pattern of
discrimination against Hispanic agents.
Guerrero first presents anecdotal
evidence, pointing to two general
patterns which he believes evidence
discrimination. First, he notes that
Hispanics are frequently appointed to
drug squads, yet rarely promoted to
supervisory roles in those squads. We
find this fact, without more explanation,
to be inapposite. There are many reasons
why this pattern could have evolved, some
innocent. For example, few Hispanic
agents may have applied for these
positions. Second, Guerrero argues that
he neither he nor Casanova have been able
to use relief supervisor positions as
stepping stones to promotion whereas
three white agents have. This sparse
evidence hardly constitutes a trend: it
is merely the experience of Guerrero and
one other Hispanic agent. Again, we do
not have enough information to assess
this trend. Further, we have no evidence
that the FBI touted relief
supervisorypositions as stepping stones
to promotion. Guerrero’s pattern and
practice evidence does not support his
claim.
Guerrero next offers statistical studies
conducted by an expert, Dr. LaLonde,
tending to show that Hispanic and Black
agents are promoted far less frequently
than other agents. We have found
statistical evidence to be admissible and
helpful in disparate treatment cases, yet
statistical evidence alone does not, in
most cases prove pretext. See Rummery v.
Illinois Bell Telephone Co., Slip Op. 00-
2137 at *11 (7th Cir. May 11, 2001);
Adams v. Ameritech Services, Inc., 231
F.3d 414, 423 (7th Cir. 2000). We
recognize that there is a fierce
disagreement between the parties
regarding the appropriateness of Dr.
LaLonde’s data selection and his
methodological technique, but like the
district court, we will not address it.
Even if we conclude that Guerrero’s
statistics evidence discrimination, we
decline to reverse the grant of summary
judgment on this basis. The sample
Guerrero provides is quite small,
focusing on only four individuals over a
span of eight years. This meager
statistical evidence does not constitute
the rare case where statistics alone can
create a triable issue of pretext and
Guerrero has not produced any evidence of
pretext to supplement his statistics.
The FBI’s proffered reasons for
declining to promote Guerrero are
legitimate and we see no triable issue of
pretext. We AFFIRM.
FOOTNOTES
/1 Pursuant to Fed. R. App. P. 43(c)(2), John
Ashcroft is automatically substituted for the
original defendant, Janet Reno.
/2 Circuit Judge Kanne replaced Chief Judge Flaum
who recused himself subsequent to oral argument.