Mmubango, Omar v. Leavitt, Michael , 225 F. App'x 393 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2007
Decided March 1, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2436
OMAR MMUBANGO, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 C 4107
MICHAEL O. LEAVITT,
Administrator, United States Ruben Castillo,
Environmental Protection Agency, Judge.
Region 5,
Defendant-Appellee.
ORDER
Omar Mmubango applied and interviewed for a position as a chemist with
the Chicago regional office of the United States Environmental Protection Agency
(“EPA”), but he was not selected for the job. Mmubango brought suit against the
EPA Administrator, alleging that he was not hired because of his race and national
origin, and that EPA retaliated against him, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court granted summary
judgment to EPA because Mmubango failed to show that EPA’s stated non-
discriminatory reasons for not hiring him—namely his poor written communication
No. 06-2436 Page 2
skills and his misrepresentation about the reason for leaving his prior
employment—were pretextual. We affirm.
Mmubango submitted an application to EPA in response to a vacancy
announcement for a chemist position in the Chicago regional office. Among other
basic requirements, the job announcement specified that candidates have a science
or engineering degree that included 30 semester hours in chemistry and 6 semester
hours of physics, or a combination of education and experience, including
coursework equivalent to that specified above plus appropriate experience or
additional education. In addition, the job required one year of specialized
experience. The job announcement specified that applications would be assessed
based on various knowledge, skills, and abilities, including the “[a]bility to
communicate effectively, both orally and in writing.”
The U.S. Office of Personnel Management provided George Hamper—a
Section Chief in the Enforcement and Compliance Assurance Branch of EPA’s
Waste, Pesticides and Toxics Division—with a list of the qualified applicants and
their applications, and instructed him to select one of the top three candidates.
Mmubango, a native of Kenya who is black, was ranked first, followed by Dr. John
Parks and Thomas Schuster, respectively (both white citizens born in the United
States). Hamper interviewed all three candidates.
Mmubango’s application consisted of a three-page resume that contained
numerous misspellings and grammatical errors. In addition to describing generally
his educational and employment history, the resume specified that Mmubango
attended high school in Kenya and has United States citizenship. Shortly after
interviewing Mmubango, Hamper contacted Bob Dullinger, Mmubango’s prior
supervisor at the Minnesota Pollution Control Agency (“MPCA”). Dullinger stated
that he did not certify Mmubango for employment beyond MPCA’s six-month
probationary period, but that he could not provide further information because
Mmubango filed two lawsuits over the matter, one of which was not yet resolved.
This was inconsistent with Mmubango’s assertion that he left MPCA because he
planned to return to school and did not want to be a state government employee
subject to six months’ probation.
One week after interviewing Mmubango, Hamper wrote a “file
memorandum” stating that he found Mmubango’s resume to be “incomplete,
unclear, and poorly written in general,” and that it had “13 spelling mistakes as
well as numerous grammar, punctuation and capitalization errors.” The
memorandum also noted that Mmubango’s resume did not make clear that he was
employed in temporary positions through an employment agency, incorrectly named
a prior government employer, and omitted the names of supervisors, including
Dullinger. Finally, the memorandum noted that Hamper’s conversation with
No. 06-2436 Page 3
Dullinger raised concerns that Mmubango had not been entirely forthright about
the circumstances behind his departure from MPCA. In the end, Hamper hired
Parks, the second-ranked candidate, for the chemist position.
After the EEOC issued a right-to-sue letter, Mmubango sued EPA in federal
court for unlawfully discriminating against him based on his race and national
origin and for retaliating against him for filing a discrimination lawsuit against his
prior employer, MPCA. The district court granted EPA’s motion for summary
judgment, determining that, although Mmubango established a prima facie case of
race and national origin discrimination, he failed to show that EPA’s legitimate,
non-discriminatory reasons for not hiring him were pretextual. Specifically, the
court found that Parks (the candidate who was hired) had a Ph.D. in chemistry,
whereas Mmubango had not yet earned his B.S. in chemistry, and that Parks’s
application was easier to read and contained fewer errors than Mmubango’s
resume. Thus, the court concluded, Hamper could have genuinely believed that
Parks was the better candidate for the job. The court also concluded that
Mmubango presented no evidence that EPA’s decision not to hire him was
retaliation for his pending lawsuit against MPCA.
On appeal, Mmubango challenges the district court’s determination that he
failed to show that EPA’s decision not to hire him was a pretext for race and
national origin discrimination and retaliation for filing a discrimination claim
against his prior employer. He presents numerous arguments, none of them
meritorious.
Mmubango first argues that he established pretext based on alleged flaws in
the hiring process. Specifically, he contends that EPA’s justification for not hiring
him is belied by the fact that Hamper (1) contradicted himself concerning the
adequacy of Mmubango’s oral communication skills; (2) did not question Mmubango
or Dullinger about Mmubango’s writing skills; and (3) did not write a memorandum
explaining his decision not to hire the other candidate who was not selected.
The focus of a pretext analysis is whether the employer honestly believed its
stated reason for making the challenged employment decision. See Hague v.
Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir. 2006). Pretext is not a mere
“business error” but rather “a lie or deceit designed to cover one’s tracks.” Cardoso
v. Robert Bosch Corp., 427 F.3d 429, 435 (7th Cir. 2005). Here, even if true, none of
Mmubango’s allegations shows that Hamper was insincere in his belief that
Mmubango was less qualified for the position based on his poorly written resume,
which Hamper found to be riddled with misspellings, grammatical errors,
omissions, and confusing and misleading statements.
No. 06-2436 Page 4
Mmubango next argues generally that the district court erred because he was
the better qualified candidate for the position. For example, he contends that his
first-place ranking on OPM’s list of eligible candidates proves that he was the
superior candidate. He also asserts that his effective writing skills are established
by his error-free thank-you letter to Hamper and the fact that he utilized his
writing skills effectively in previous jobs. Mmubango further argues that Parks had
inferior employment and educational qualifications, although the record belies this
argument. Indeed, Mmubango fails to acknowledge that Parks had thirty years of
relevant work experience, and he erroneously asserts that Parks was awarded a
“doctorate in philosophy,” when Parks’s academic transcript shows that he received
a Ph.D. in chemistry. Regardless, the mere fact that Mmubango disagrees with
EPA’s assessment of his skills is insufficient to establish that EPA did not honestly
believe its assessment to be correct. See Cichon v. Exelon Generation Co., LLC, 401
F.3d 803, 812 (7th Cir. 2005). Nor is it the court’s role to second-guess an
employer’s business judgment about an applicant’s qualifications. See Cardoso, 427
F.3d at 435–37 (Title VII does not empower the court to impose merit selection
programs or to punish employers for business decisions alone).
Mmubango next takes issue with the district court’s conclusion on his
retaliation claim. The court found that Mmubango established a prima facie case of
retaliation but that, like his discrimination claim, it failed on the pretext prong.
Specifically, the court found that Mmubango could point to no evidence that
Hamper knew he had filed a discrimination lawsuit against his prior employer, nor
did Hamper’s minimal knowledge of the pending lawsuit establish that his
legitimate, non-discriminatory reasons for not selecting Mmubango were a lie.
Mmubango argues that the district court erred because the short period of
time between Hamper’s conversation with Dullinger and Hamper’s decision not to
hire him is evidence of pretext. He also asserts that Hamper’s failure to return his
phone calls after speaking with Dullinger (and after being pleasant to Mmubango
during the interview) is proof of retaliatory animus.
As with a discrimination claim, when the plaintiff makes out a prima facie
case of retaliation, the burden shifts to the employer to offer a legitimate, non-
discriminatory justification for its decision, and the plaintiff then must show that
the justification was pretextual. Cichon, 401 F.3d at 812. Title VII also bars an
employer from retaliating against someone for making or supporting a charge of
discrimination against a different employer. See Flowers v. Columbia Coll.
Chicago, 397 F.3d 532, 533–34 (7th Cir. 2005).
Mmubango points to no evidence that EPA decided not to hire him because
he had brought a discrimination lawsuit against MPCA, nor does he offer any new
arguments to refute EPA’s non-discriminatory justifications for its hiring decision.
No. 06-2436 Page 5
Mmubango does not assert that Hamper knew the nature of Mmubango’s pending
lawsuit against MPCA, and there is no evidence that Hamper knew it to be a
discrimination suit. That Hamper failed to return Mmubango’s phone inquiries and
made his hiring decision shortly after speaking with Dullinger alone does not create
an inference that Hamper’s hiring decision was motivated by retaliatory animus.
Mmubango’s argument rests entirely on his self-serving assertion that Hamper is
not believable, but this is insufficient to establish pretext without some affirmative
evidence that Hamper lacks credibility. See Cichon, 401 F.3d at 814–15.
AFFIRMED.