Cardoso, Ruben v. Robert Bosch ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4026
RUBEN CARDOSO,
Plaintiff-Appellant,
v.
ROBERT BOSCH CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 C 468—Allen Sharp, Judge.
____________
ARGUED JUNE 7, 2005—DECIDED OCTOBER 14, 2005
____________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Ruben Cardoso, a Brazilian
national and employee of Robert Bosch Corporation, was
distressed to learn that he was being paid less than fellow
employees in the purchasing department of Bosch’s South
Bend, Indiana, facility. Cardoso was even more distressed
when his supervisor opined that the disparity was due to
Cardoso’s national origin. Brazilian he may be, but
Cardoso’s reaction was quintessentially American—he sued
2 No. 04-4026
Bosch in federal court, alleging wage discrimination on the
basis of his national origin in violation of Title VII. The
district court granted summary judgment in Bosch’s favor,
and Cardoso appeals. Cardoso’s case fares no better here.
We affirm.
I. Background
In 1995, Bosch’s Brazilian subsidiary hired Cardoso to
work as an import coordinator in its purchasing group. In
1997, Bosch transferred Cardoso to the South Bend facility’s
purchasing department for a two-year training assignment.
During this time, he remained an employee of the Brazilian
subsidiary and continued to earn his Brazilian salary
(equivalent to $32,500) plus a $20,000 stipend, which was
set to expire upon completion of his assignment in the U.S.
At the end of his two-year assignment, Cardoso requested
a permanent transfer to Bosch U.S. Bosch granted
Cardoso’s request, and Cardoso accepted a position as a
buyer in its South Bend facility in November 1999. Bosch’s
human resources department determined Cardoso’s annual
salary for this position to be $54,900, based on the com-
pany’s standard practice of comparing an incoming em-
ployee’s experience and skills with the skills, experience,
and salaries of current employees in the same position.
At the time of Cardoso’s hire, there were three other
buyers in the purchasing department. The purchasing
department also employed senior buyers. Although the
senior buyers performed duties similar to those of the
buyers, senior buyers had more responsibility, discretion,
and autonomy. For example, a buyer could do market
research and make purchasing recommendations to a
manager, whereas a senior buyer had authority to make the
final purchasing decisions on his own. Accordingly, senior
buyers were in a higher salary grade than buyers.
No. 04-4026 3
When Cardoso started his full-time position, there was
one senior buyer in the department. Some time thereafter,
Bosch posted on its company intranet listings for two senior
buyer vacancies. It is undisputed that Cardoso did not apply
for either of these positions. In late 2000 and early 2001,
Bosch filled the positions with two applicants from outside
the company.
Shortly thereafter, Jim Turza, one of Cardoso’s fellow
buyers, told Cardoso that Bosch had just hired people into
the purchasing department at higher salaries than either of
them were making. Turza was upset about this turn of
events, which he perceived to be unfair. Turza emailed
Frank Gaba, the director of purchasing and the buyers’
supervisor, to complain about the situation and to demand
to be reclassified as a senior buyer with a correspondingly
higher salary. Gaba denied Turza’s request.
Cardoso was so emotionally distraught at hearing the
news that he took a few days off from work. In April 2001,
Cardoso confronted Gaba about the matter. According to
Cardoso, Gaba theorized that Cardoso had been hired at a
lower salary than other buyers, explaining, “[B]ecause
you’re Brazilian . . .[,] [Human Resources] think[s] that if
you were in Brazil, you would not be making as much
money as you are already making here.”
A week later, Gaba called Cardoso to his office. As
Cardoso recalls it, Gaba informed him that he had spoken
with Edmund Buehl, one of Bosch’s North American vice
presidents, and convinced Buehl to “adjust [Cardoso’s]
salary to the level of the other ones.” Gaba assured Cardoso
that the salary adjustment would take place within two
months. Seven months passed, and Cardoso’s salary
remained the same. He confronted Gaba in November 2001.
Gaba denied Cardoso’s recollections of the earlier conversa-
tion.
In January 2002, Cardoso filed a charge with the Equal
Employment Opportunity Commission (EEOC), and then,
4 No. 04-4026
after receiving a right-to-sue letter, filed a complaint in
federal court, alleging that Bosch discriminated against him
on the basis of his national origin. Although the precise
nature of Cardoso’s complaint was less than clear, the
district court interpreted the complaint as alleging that
Bosch discriminated by denying him a promotion to senior
buyer and that the failure to promote resulted in a pay
disparity. The district court granted summary judgment in
Bosch’s favor, finding that his complaint was time- barred
because the acts complained of took place outside the 300-
day filing period. See, e.g., Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122-23 (2002); Dasgupta v. Univ. of
Wisconsin Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir.
1997).
II. Discussion
Our review of the grant of summary judgment is de novo.
See Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d
776, 782 (7th Cir. 2004). We construe all facts and infer-
ences in the light most favorable to the nonmoving party,
Cardoso. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Summary judgment is appropriate when the
record as a whole indicates that there is no genuine issue as
to any material fact and that the moving party is entitled to
judgment as a matter of law. Cerutti v. BASF Corp., 349
F.3d 1055, 1060 (7th Cir. 2003). We may affirm summary
judgment on any ground supported in the record, so long as
that ground was adequately addressed in the district court
and the nonmoving party had an opportunity to contest the
issue. See, e.g., Box v. A&P Tea Co., 772 F.2d 1372, 1376
(7th Cir. 1985) (collecting authority).
Generously construed, Cardoso’s allegations boil down to
just one claim: disparate pay on account of his Brazilian
No. 04-4026 5
national origin.1 The parties vigorously dispute whether, as
the district court concluded, Cardoso’s disparate pay claims
are time-barred. In essence, the parties disagree over what
event started the clock on Cardoso’s 300-day window to file
an EEOC charge. E.g., Morgan, 536 U.S. at 122-23. Cardoso
argues that our decision in Reese v. Ice Cream Specialties,
Inc., 347 F.3d 1007 (7th Cir. 2003), controls and requires
that we reverse the district court’s judgment. Bosch re-
sponds that the district court properly applied Dasgupta to
find that Cardoso’s claims were time-barred, and in any
event, Cardoso’s claims are also time-barred under Reese.
We shall cut right to the chase, however. Even if
Cardoso’s claims are not time-barred, Cardoso’s case does
not succeed on the merits—which were well ventilated both
in the district court and here—and thus summary judgment
was properly granted in Bosch’s favor.
Cardoso’s claims arise under Title VII of the Civil Rights
Act of 1964, which makes it unlawful for an employer “to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s . . . national origin.” 42
U.S.C. § 2000e-2(a)(1). Title VII plaintiffs may offer either
direct or indirect proof of discrimination using the venera-
ble burden-shifting method in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Cardoso proceeds under both
methods, and we turn first to Cardoso’s direct evidence.
Direct evidence is essentially an “outright admission” that
a challenged action was undertaken for one of the forbidden
reasons covered in Title VII. See Davis, 368 F.3d at 783; see
also Jordan v. City of Gary, 396 F.3d 825, 832 (7th Cir.
1
As the district court intimated, Cardoso appears to lump
together a failure to promote claim with a disparate pay claim, but
gives the former only the barest mention (and no supporting
argument) in his briefs. We address this issue below.
6 No. 04-4026
2005). Cardoso claims that Gaba’s explanation (given some
seventeen months after Cardoso’s hire) for Cardoso’s lower
salary—“[B]ecause you’re Brazilian”—is the smoking gun
that directly proves rampant anti-Brazilianism at Bosch.
Cardoso is wrong. It is undisputed that Gaba did not make
the decision to hire Cardoso or to set his salary at a particu-
lar level, nor did he even have input into these decisions.
Although Gaba was Cardoso’s supervisor in the purchasing
department, the hiring and salary decisions were made by
Edmund Buehl and persons in Bosch’s human resources
department. Because Gaba was not the decisionmaker in
question, his statement will not suffice as direct evidence of
discrimination on Bosch’s account. See Davis, 368 F.3d at
783 (“A decisionmaker is the person responsible for the
contested decision.”) (citation omitted); see also Rozskowiak
v. Vill. of Arlington Heights, 415 F.3d 608, 612-13 (7th Cir.
2005) (concluding that a nondecisionmaker’s comment that
plaintiff “would probably be losing [his] job because [he]
was a stupid Polack” was unrelated to plaintiff’s termina-
tion); Swanson v. Leggett & Platt, Inc., 154 F.3d 730, 733
(7th Cir. 1998) (in ADEA case, nondecisionmaker’s comment
that age was a factor in termination was not an admission
of discrimination).
Moreover, Cardoso’s argument that Gaba was somehow
“involved” in the process does not carry the day. Cardoso in
particular focuses on what he claims was Gaba’s “admis-
sion” that he convinced Buehl to adjust Cardoso’s salary
upward. Gaba and Bosch deny this contention, but even if
we assume that Gaba interceded on Cardoso’s behalf and
later denied it when the expected raise did not come
through, this is far from direct evidence of discrimination.
At most, it is direct evidence that Buehl reneged, but does
not say anything about the reasons why. Cardoso’s bare
speculation will not suffice to make up the difference,
particularly when (as discussed below) Bosch has offered
plenty of direct evidence that no discrimination was afoot.
No. 04-4026 7
See, e.g., Swanson, 154 F.3d at 733 (noting that a plain-
tiff’s speculation about a “plausible scenario” is insufficient
to counter direct evidence offered in support of summary
judgment) (citations omitted). Nor do Gaba’s statements
amount to a “mosaic” of circumstantial evidence that might
directly prove discrimination. Cf. Jordan, 396 F.3d at 832-
33; Davis, 368 F.3d at 784.
Cardoso’s indirect evidence fares no better. Under the
McDonnell Douglas framework, Cardoso must first estab-
lish a prima facie case of discrimination. See Ghosh v.
Indiana Dep’t of Envtl. Mgt., 192 F.3d 1087, 1090 (7th Cir.
1999). It is somewhat unclear what standard guides the
determination of a prima facie case of disparate pay under
Title VII. See id. at 1094 (citation omitted). We shall
assume Cardoso meets this standard and proceed to an
analysis of Bosch’s explanations for the difference in pay
and whether those explanations are merely pretextual. See
id. at 1091 (citation omitted).
Before addressing Bosch’s explanations, it is worth
repeating the gravamen of Cardoso’s dispute with Bosch.
Cardoso claims that he was more qualified than his fellow
buyers, yet he started at a lower salary than they did and
did not receive a comparable raise. Cardoso also sweeps in
the senior buyers as comparators, claiming that his respon-
sibilities were at least as weighty as theirs, and the fact
that they were being paid more than he is evidence of
discrimination. As Cardoso sees it,
[t]he hiring as a senior buyer or promotion to such
position in itself was part of the discriminatory conduct
leading to a discriminatory wage differential. In other
words Bosch cannot hide a discriminatory salary by
stating that someone is a senior buyer and by [sic] thus
by definition has greater responsibilities and is given a
higher salary than the position of buyer Cardoso
occupied.
8 No. 04-4026
In sum, Cardoso claims that he was better qualified than
the buyers and senior buyers, and his lower salary can only
be explained by his Brazilian national origin and Bosch’s
discrimination against him on that basis.
We first examine the salaries and qualifications of
Cardoso’s fellow buyers. In 1999, when Cardoso was hired,
Vishal Goyal, from India, was earning $56,600 and had an
MBA and seven years’ experience prior to starting at Bosch
in June 1998. Lela Chai, a Chinese-American, was earning
$52,000 and had both an MBA and an electrical engineering
master’s degree. Chai had six years’ experience prior to
joining Bosch in January 1999. Finally, Jim Turza, a
Caucasian American, was making $54,200, had a bachelor’s
degree in business and seven years’ experience as a buyer
prior to joining Bosch in January 1996. In 2000, Goyal’s pay
was increased to $62,700; Chai’s pay increased to $59,400,
and Turza’s pay increased to $56,100.
Cardoso had a bachelor’s in business administration and
three years’ experience prior to joining Bosch’s Brazilian
subsidiary in 1995. Cardoso’s starting salary of $54,900
remained the same in 2000 because he was hired at the end
of 1999, in November. Cardoso received a raise, effective
January 1, 2001, to $57,600.
Bosch offered legitimate nondiscriminatory reasons for
the supposed disparate pay of which Cardoso complains.
Bosch offered evidence that it makes starting salary offers
and pay raises based on a number of objective factors,
including the incoming employee’s skills, experience,
education, and work performance. These proffered reasons
are perfectly consistent with the evidence regarding the
starting salaries and raises of Cardoso and his fellow
buyers. All of the buyers’ starting salaries comport with the
stated criteria. The two higher paid buyers in 2000—Goyal
and Chai—both had master’s degrees and more work
experience than Cardoso prior to joining Bosch. Cardoso
No. 04-4026 9
and Turza, both with bachelor’s degrees, earned the least.
Interestingly, Chai started at an even lower salary than
Cardoso did, but received a larger raise in 2000 than
Cardoso did in 2001. Again, these figures are consistent
with Bosch’s contention that Chai’s higher level of educa-
tion and greater work experience explained the differing
salary levels that resulted a year after each employee’s hire.
With respect to the senior buyers that Cardoso casts as
comparators, it is very difficult to take Cardoso’s arguments
seriously. In essence, Cardoso contends that Bosch hired
senior buyers that were less qualified than he and tried to
hide its discrimination against Cardoso by labeling the new
hires as “senior” buyers instead of buyers.
But it is undisputed that “senior buyer” is an actual
position in Bosch’s purchasing department—indeed, a
senior buyer was already in place at the time Cardoso was
hired—and it is further undisputed that the position has
greater authority and autonomy than a buyer has. Bosch
provided evidence that all of its senior buyers had qualifica-
tions justifying their hire in the first place, such as work
experience or education. For example, Bosch showed that
the two senior buyers hired in 2000 and 2001 had substan-
tial prior experience—thirteen years and eleven years,
respectively. One of the buyers had an MBA, while the
other had extensive experience with Allied Signal, which
previously operated Bosch’s South Bend facility. The senior
buyer with the MBA started at $75,000, while the other
started at $60,000.
Cardoso must offer evidence that these facially neutral
explanations for pay disparities are pretextual. But Cardoso
offers nothing more than his own unsupported speculation
for his peculiar conclusion that Bosch contrived to label
these two hires as “senior buyers” in order to justify paying
them more than it paid Cardoso. Cardoso claims that
Bosch’s facially nondiscriminatory explanations for the pay
10 No. 04-4026
disparities must be pretextual because, for example, Gaba
once told Cardoso that an MBA was not necessary for a
promotion and allegedly discouraged Cardoso from pursuing
such a degree. In the first place, Gaba’s statement appears
factually accurate because one of the recently hired senior
buyers did not have an MBA. Second, and most important,
the statement does not, by itself, illustrate that Bosch
discriminated on the basis of Cardoso’s national origin.
The rest of Cardoso’s evidence of pretext is simply a
recitation of how he was more qualified than his fellow
buyers and the senior buyers yet received a smaller pay-
check. This “evidence” comes from Cardoso’s own declara-
tion, in which he unqualifiedly asserts that: (1) he was
“performing the duties of at least a senior buyer”; (2) he
“alone possessed the key language skills in both Portuguese
and Spanish, which were crucial to the Bosch division he
worked in”; (3) his knowledge of the Brazilian culture was
vital to the company and nobody else had such knowledge;
and (4) that he “was at least as qualified by experience,
training, responsibilities, reporting status, and skills” as
every one of the buyers and senior buyers to which he
compared himself.
None of this “evidence” establishes that Bosch’s explana-
tions were pretextual. As an initial matter, we note that
much of the substance of Cardoso’s declara-
tion—particularly his expansive description of his job
responsibilities—directly contradicts his earlier deposition
testimony, in which he admitted having far less authority
and no independence with regard to managing commodities.
Cf., e.g., Bank of Ill. v. Allied Signal Safety Restraint Sys.,
75 F.3d 1162, 1168-69 (7th Cir. 1996). But even if Cardoso’s
glowing description of his capabilities and responsibilities
is undisputed, it still tells us nothing about whether Bosch’s
proffered explanations were pretextual. A pretext for
discrimination is something worse than a business error—a
lie or deceit designed to cover one’s tracks. See Davis, 368
No. 04-4026 11
F.3d at 784 (“The focus of a pretext inquiry is whether the
employer’s stated reason was honest, not whether it was
accurate, wise, or well-considered.”) (citation omitted);
Ghosh, 192 F.3d at 1091 (“Pretext is established if the
plaintiff can show that the defendant’s proffered reasons
are either lies or completely lacking in factual basis.”)
(citation omitted). Rather than offering evidence that Bosch
is lying about its reasons for the alleged disparate pay,
Cardoso only presents a list of reasons why he thinks Bosch
failed to recognize his true worth and compensate him
accordingly.
Perhaps Cardoso’s many self-described talents were
objectively more valuable to Bosch, and he was underpaid
because the company was exercising poor business judg-
ment in not recognizing that fact and paying him accord-
ingly. That determination, however, is not for us to make,
and we will not second-guess Bosch’s management decisions
so long as they do not run afoul of Title VII. As we have
often stated—to a host of deaf ears, it often seems—the
court is not a “super-personnel department” intervening
whenever an employee feels he is being treated unjustly.
See Davis, 368 F.3d at 785 (citation omitted); Guerrero v.
Ashcroft, 253 F.3d 309, 314 (7th Cir. 2001) (citation omit-
ted). The aggrieved employee may seek recourse in federal
court for discrimination only for the forbidden reasons set
forth in Title VII, not for common workplace disputes or
poor, nonsensical, or even heavy-handed management
techniques or decisions. See, e.g., Guerrero, 253 F.3d at 314(“[W]e may not punish an employer for choices that consti-
tute business decisions alone, no matter how unwise or
mistaken they may seem to us.”) (collecting authority). Nor
does Title VII empower us to impose court-enforced merit
selection or recognition programs. Cf. Jordan v. Summers,
205 F.3d 337, 344 (7th Cir. 2000).
Cardoso’s evidence of pretext is nothing more than his
disagreement with the way in which Bosch evaluated his
12 No. 04-4026
skills, qualifications, and worth in comparison to the other
buyers and senior buyers. This will not do. Cardoso’s belief
that he is better qualified for a higher salary is irrelevant
to the question of pretext. See Mills v. First Fed. Sav. &
Loan Ass’n of Belvidere, 83 F.3d 833, 843 (7th Cir. 1996). In
short, Cardoso has not produced any evidence indicating
that Bosch’s facially legitimate explanations are pretextual,
and thus no reasonable jury could find that Bosch discrimi-
nated against him because he is Brazilian.
One final loose end: as mentioned earlier, Cardoso may
also be arguing a freestanding failure-to-promote claim
because he was not promoted to one of the two listed senior
buyer positions in 2000 or 2001. There was some confusion
on this in the district court, for Cardoso alleged both that
the failure to promote him to senior buyer and the hiring of
senior buyers over him were factors that supported his
wage discrimination claim. Nevertheless, even if Cardoso is
alleging such a claim, he fails even to make it past the
prima facie stage, for it is undisputed that he did not apply
for those job openings (which were advertised) and there-
fore could not have been rejected for promotion to either
opening. See Ghosh, 192 F.3d at 1090-91. In addition, he
offers no evidence—other than his unsupported self-promo-
tion as described above—that he was better qualified for
those positions than the persons hired. See id. at 1091.
III. Conclusion
For the reasons given, we AFFIRM the judgment of the
district court.
No. 04-4026 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-14-05