In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 01-2014
ROBERT HUDSON,
                                               Plaintiff-Appellant,

                                 v.


CHICAGO TRANSIT AUTHORITY,
a municipal corporation,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 98 C 4124—John W. Darrah, Judge.
                          ____________
     ARGUED OCTOBER 24, 2003—DECIDED JULY 9, 2004
                    ____________



 Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
  BAUER, Circuit Judge. Robert Hudson filed suit against
the Chicago Transit Authority on July 7, 1998, alleging
breach of contract, retaliation and racial discrimination.
Fourteen counts of his twenty-count complaint are Title VII
discrimination and retaliation claims based on promotions
given to other CTA employees that Hudson thought he
deserved. The remaining six counts are based on allegations
that the CTA breached a 1995 settlement agreement that
settled a prior discrimination suit brought by Hudson. The
district court granted CTA summary judgment for all of
2                                               No. 01-2014

Hudson’s claims except for two of his breach of contract
claims. The court then dismissed those remaining two
claims for lack of jurisdiction. Hudson appeals the court’s
order granting the CTA summary judgment on his claims.
We affirm.


                     BACKGROUND
   Hudson was hired by the CTA as an electrician in Febru-
ary 1977. In September 1995, Hudson settled a lawsuit with
the CTA. The lawsuit claimed racial discrimination and
retaliation by the CTA. The settlement agreement provided,
in part, that Hudson would be placed into a new position
titled “Maintenance Construction Material Coordinator.”
The agreement stated that:
    CTA shall use reasonable efforts to afford to Mr.
    Hudson the same rights, privileges and opportunities
    afforded to all other Coordinators. Such rights, privi-
    leges and opportunities are not absolute, and Mr.
    Hudson is not automatically entitled to identical
    treatment as every other Coordinator . . . . As a coordi-
    nator, Mr. Hudson shall rotate into the Manager’s
    position.
   The Plaintiff, employed at the CTA’s West Shops facility,
filed a suit claiming that the CTA discriminated against
him again because he is African-American and retaliated
against him for filing the prior discrimination suit. His new
claims arose out of promotions given to certain Caucasian
CTA employees in 1997 and 1998 at the CTA’s West Shops
facility.


I. Manager Rail Customer Facilities Projects
  Plaintiff claims he was denied eight different promotions
for four different positions in 1997 and 1998: Manager Rail
Customer Facilities Projects; Manager Rail Customer
No. 01-2014                                              3

Facilities Maintenance; General Maintenance Manager; and
Senior Coordinator. Three of the promotions that the
Plaintiff complains of went to Caucasian males for the
position of Manager Rails Customer Facilities Projects or
simply called Project Manager. One of these positions was
not posted, but was filled directly by Jack Hartman, Senior
Vice President of Facilities Management and Engineering.
The other two positions were posted and the Plaintiff
applied for just one of those.


 A. Mike Kelly’s Promotion
  Hartman promoted Mike Kelly to the position of Project
Manager directly. The CTA does not require postings be
made for all job vacancies in management positions. For
this particular position, a posting was not required by the
CTA’s Human Resources Department. At the time of his
promotion, Kelly had been an electrician at the CTA for 23
years. According to Hartman, Kelly proved he was worthy
of a promotion by his hard work and initiative. Hartman
became familiar with Kelly’s work during the months prior
to Kelly’s promotion because Kelly worked with a team of
employees who were assigned to improve the appearance
and state of repair of the CTA’s facilities as part of the
Neighborhood Station Improvement Program, (“NSIP”).
Hartman was particularly impressed that Kelly put in long
hours and worked on weekends. For instance, Kelly created
a user’s manual for the CTA’s power washers to address
problems with washers that often broke down because of
frequent misuse. Kelly had also previously acted as Senior
Coordinator of the CTA’s emergency response crews that
responded to emergencies involving CTA buses, trains, and
other equipment and facilities.
4                                               No. 01-2014

    B. Tom Drozd’s Promotion
  The second Project Manager position was posted in April
1997. Forty-seven employees applied for the position.
Eleven applicants were chosen for interviews, including the
Plaintiff. Hartman conducted the interviews and all
interviewees were asked the same questions that had been
approved in advance by the Human Resources Department.
  Hartman chose Tom Drozd for this Project Manager
position. Drozd spent two years at Washburn Trade school
in the 1970s and had been a sheet metal worker since the
mid-1980s. Like Kelly, Hartman had the chance to observe
Drozd on other occasions. He believed he was a self-starter
who had proved his good work ethic on previous assign-
ments. Hartman was also impressed that Drozd had
rehabilitated a building with over 60 apartment units as a
side job and refinished a boat. Based on the interview,
Hartman concluded that while Hudson was suitable, he was
not recommended for the position. Hartman thought that
Drozd had a drive that was not exhibited by the other
applicants, including Hudson.


    C. Mike Harjung’s Promotion
  In 1998, Kelly retired and the CTA posted the Project
Manager position again. Hudson chose not to apply. The
salary set for the position by Human Resources was less
than the amount Hudson was earning at the time. The
promotion went to Mike Harjung. Harjung, before his
promotion, worked as a Coordinator over bricklayers,
carpenters, maintenance repairmen and flagmen doing
special projects. One of the first projects Harjung worked on
at the CTA was cleaning the subway rights-of-way, includ-
ing the subway sewers. Harjung had a background in
plumbing and worked previously for the City of Chicago
Water Department.
No. 01-2014                                                5

  In the spring of 1998, Harjung demonstrated his problem-
solving skills by repairing a sewer in front of the CTA’s
West Shops facility in just two days, even though others
had been trying to fix it for a month. Based on his experi-
ence and good reputation for being a hard worker, plus an
unsolicited recommendation from the Deputy Commissioner
of the City of Chicago Water Department, the interviewers
believed Harjung to be more than qualified for the position.


II. Manager Rail Customer Facilities Maintenance: George
    Grecco’s Promotion
  Hudson also complains about the promotion of George
Grecco, a Caucasian male, to the position of Manager Rail
Customer Facilities Maintenance (“Manager Rail Facili-
ties”). Hudson did not apply for the position although it was
posted in the spring of 1997. The posting summarized the
responsibilities for the position as follows: “assists the
General Manager in development and administration of
department’s programs, policies and goals, administers
discipline to janitors and responds to grievances.” Hudson
did not apply for this position because he did not want to
supervise janitors even though the posting listed references
to responsibilities beyond the supervision of janitors.
Hudson also admits that he did not have the special
training required for electricians who repaired elevators
and escalators.


III. General Maintenance Manager: John Johnson’s Promo-
     tion
  John Johnson was promoted to the position of General
Maintenance Manager. This position was not posted and
from the briefs it is unclear who conducted the interviews.
CTA believes that the recommendations and interviews
were handled by an African-American, Randy Simmons,
6                                              No. 01-2014

who is now deceased. The promotion was approved by
George Haenisch, who was Vice President at West Shops.
Johnson had over twenty years of experience at the CTA
and had previously worked as a machinist in the fabricated
parts group and as Senior Coordinator in the Utility Repair
Section, where he supervised tradesmen in utilities.
Haenisch believed that Johnson’s responsibilities as Senior
Coordinator involved a lot of supervision of tradesmen and
that Johnson did that job well. Haenisch testified that the
tradesmen at West Shops and at the Utility Repair Section
may have different work but are capable of transferring
between the two areas.


IV. Senior Coordinator Positions
  In February 1998, a single posting was made for a Senior
Coordinator Electrical Construction position and three
Senior Coordinator Construction positions. Hudson applied
for the Senior Coordinator positions and was interviewed
once for all four positions by Vice President Patrick Harney
and David Cargill, the General Manager of West Shops.
During the interview, Hudson gave only one-word answers
to questions and did not elaborate on how he would improve
CTA operations. Cargill believed that Hudson lacked the
supervisory experience necessary for the job because he had
never acted as a foreman or leader at the CTA. Hudson was
not recommended for any of the four positions. A Caucasian
male was chosen for the Senior Coordinator Electrical
Construction position. The three Senior Coordinator
Construction positions went to an African-American male
and two Caucasian males. Hudson does not complain about
the offer made to the African-American male.


                      DISCUSSION
  Summary judgment should be granted if “the pleadings,
depositions, answers to interrogatories, and admissions on
No. 01-2014                                                  7

file, together with affidavits, if any, show that there is no
genuine issue as to any material fact.” FED. R. CIV. P. 56(c).
We view all evidence and the reasonable inferences in the
light most favorable to the nonmoving party. Miller v.
American Family Mutual Ins. Co., 

, 1003 (7th
Cir. 2000). However, the nonmoving party must come
forward with specific facts that show there is a genuine
issue for trial. 

a de novo review of the
district court’s order granting summary judgment.


A. Title VII Racial Discrimination and Retaliation Claims:
   Grecco and Harjung
  The district court held that Hudson failed to establish a
prima facie case for discrimination and retaliation arising
from the Grecco and Harjung promotions; we agree with the
district court. If a plaintiff does not apply for a job vacancy
that is posted, he cannot make a prima facie case for
unlawful discrimination or retaliation under Title VII
unless the plaintiff demonstrates that the employer’s
discriminatory practices deterred plaintiff from applying.
See McDonnell Douglas Corp. v. Green, 

, 802
(1973) (requiring a showing that plaintiff applied for the job
as an element of a prima facie case in a failure to promote
case); Grayson v. City of Chicago, 

, 748 (7th
Cir. 2003) (holding that a plaintiff in a failure to promote
context must show that he applied for and was rejected for
the promotion to establish an adverse action).
  So Hudson failed to meet the standards required under
the law to establish a prima facie case for discrimination
and retaliation based on the Grecco and Harjung promo-
tions. He admits that he was aware of the job postings, but
decided not to submit an application for either promotion.
Hudson presented no evidence that he was prevented from
applying. He knew of the Spring 1997 promotion that went
to Grecco and specifically decided not to apply for the
8                                                   No. 01-2014

position because he believed that it exclusively involved the
supervision of janitors. Although Hudson asserts that the
posting for the Grecco promotion was misleading, he fails to
point to any facts that suggest the CTA intentionally made
the posting misleading to keep him from applying. After
reading the job description, the district court concluded the
job description was not misleading; we agree.1
“[A]dministers discipline to janitors” is the only duty listed
among the four in the description that references janitors,
debunking Hudson’s assertion that the description is
focused on supervising janitors. The notice for the Spring
1998 position, that went to Harjung, was posted outside
Hudson’s office for weeks and he has not claimed that he
was prevented from applying for that position. Hudson’s
argument that his prior applications were sufficient to show
interest in the positions that went to Grecco and Harjung is
not supported by law. It was not obvious to anyone at the
CTA that Hudson was interested in these positions. Accord-
ingly, the district court’s order granting summary judge-
ment on Hudson’s discrimination and retaliation claims
based on the Grecco and Harjung promotions are affirmed.


B. Retaliation Claims
  The Plaintiff also challenges the district court’s order
granting summary judgment on his retaliation claims. The
district court held that Hudson never established a prima
facie case for unlawful retaliation because he failed to
establish any direct evidence of retaliatory motive on the
part of the decision-makers. He also failed to show evidence



1
   The posting summarized the responsibilities for the position as
follows: “assists the General Manager in development and
administration of department’s programs, policies and goals,
administers discipline to janitors and responds to grievances.”
No. 01-2014                                                    9

that other similarly situated employees who had not filed a
claim against the CTA were treated more favorably than
the Plaintiff.
  In Stone v. City of Indianapolis Public Util. Div., we
clarified the standards for summary judgment on Title VII
unlawful retaliation claims. 

, 644 (7th Cir.
2002). In Stone, we laid out two distinct ways for a plaintiff
to establish a prima facie case for unlawful retaliation to
avoid summary judgment in favor of the employer. The first
way “is to present direct evidence (evidence that establishes
without resort to inference from circumstantial evidence)
that [plaintiff] engaged in protected activity (filing a charge
of discrimination) and as a result suffered the adverse
employment action of which he complains.” 

way requires that a plaintiff establish that, after filing a
charge, the plaintiff was subjected to an adverse employ-
ment action even though he was performing his job satisfac-
torily and no similarly situated employee who did not file a
charge was subjected to the adverse employment action.2 

the plaintiff establishes all of the required
elements to make out a prima facie case, if the employer
presents unrebutted evidence of a non-invidious reason for
the employment action at issue, the employer is entitled to
summary judgment unless there is a material issue of fact
as to whether the employer’s non-invidious reason is pretext



2
  This second avenue is adapted from the analysis in McDonnell
Douglas Corp. v. Green, 

(1973). McDonnell Douglas
sets out a burden-shifting test where the plaintiff must first
establish a prima facie case by the preponderance of the evidence
and then the employer must come forward with evidence of a
legitimate, nondiscriminatory reason for its actions. If the
employer meets this requirement, the burden shifts back to the
plaintiff to demonstrate, again, by a preponderance of the
evidence, that the reasons proffered by the employer are actually
a pretext for discrimination. McDonnell 

.
10                                              No. 01-2014

for retaliation. 

instant case, Hudson failed to
establish a prima facie case for retaliation under any test
set forth in Stone.
  We held in Stone that inferences and circumstantial
evidence cannot be used to establish a prima facie case for
retaliation under the direct evidence 

.
Here, the record reveals no direct evidence of retaliation
and Hudson’s assertions that CTA violated the 1995
settlement agreement—his transfer to work under
Mary Ward, few opportunities to rotate, lack of job
duties—do not constitute direct evidence of retaliation.
  Hudson also argues that certain comments made by
individuals in the promotion process serve as direct evi-
dence of retaliation. However, Hudson failed to tie those
comments to the promotion decisions at issue. These
statements were made during depositions taken a year after
the promotions were made. For instance, when Hudson
deposed Hartman, counsel asked him whether he had
“negative feelings” for the Plaintiff. Hartman responded
that he had “negative feelings in that [Hudson] should work
harder if he wants to get ahead.” Br. of Defendant-Appellee
at 33. Hartman did not know the Plaintiff at the time of the
promotion and knew nothing of the lawsuit. Hartman’s
comment, and the others the Plaintiff cites, are not like
those at issue in our recent decision in Ajayi v. Aramark
Bus Servs., 

(7th Cir. 2003). In that case,
comments made by decision- makers before or near the time
they make a challenged employment decision were held to
be sufficient to sustain a plaintiff’s discrimination claims.
The comments made in this case were far removed from the
decisions concerning the promotions.
  The Plaintiff relies on Reeves v. Sanderson Plumbing
Prods., Inc., 

(2002) and Shager v. Upjohn Co.,

(7th Cir. 1990), to support his direct evidence
argument. In Reeves, the comments at issue were direct
comments that the plaintiff was too old to do his 

. Shager also involved direct comments made by
No. 01-2014                                                 11

the supervisor who recommended the plaintiff’s termination
because plaintiff was too 

. The com-
ments at issue in Shager and Reeves were made before the
employment decisions were made. And, both used the
indirect method set forth in McDonnell Douglas.
   The Plaintiff also failed to establish the elements required
under the indirect method of proving retaliation. In order to
establish a prima facie case for retaliation using indirect
evidence, the plaintiff must show the following: (1) after
filing a charge plaintiff was subject to adverse employment
action; (2) at the time, plaintiff was performing his job
satisfactorily; and (3) no similarly situated employees who
did not file a charge were subjected to an adverse employ-
ment action. 

. Under the indirect
method of proof, failure to satisfy any one element of the
prima facie case is fatal to an employee’s retaliation claim.
See Hilt-Dyson v. City of Chicago, 

, 465 (7th
Cir. 2002) (finding that summary judgment in favor of the
employer was proper because plaintiff failed to establish an
adverse employment action).
  The Plaintiff fails to point to any evidence in the record to
demonstrate that he was singled out and that other simi-
larly situated employees who did not file a charge of
discrimination against the CTA were treated more favor-
ably. See Johnson v. Cambridge Indus., 

, 899
(7th Cir. 2003) (holding that plaintiff failed to make a prima
facie case on failure to promote claim because he could not
prove that similarly situated employee who did not file
claim was treated more favorably).
  To determine whether employees are similarly situated
for the purposes of analyzing a Title VII retaliation claim,
the employees must be “directly comparable in all material
respects.” 

(quoting Patterson v.
Avery Dennison Corp., 

, 680 (7th Cir. 2002)).
For each of the promotions at issue there were other
interested and qualified employees who were passed over
12                                             No. 01-2014

like the Plaintiff even though they had not filed claims
against the CTA. Indeed, with respect to the Drozd promo-
tion, forty-five other employees who applied in response to
the posting were passed over. Also, other employees, who
did not file charges against the CTA, lost their management
positions because they were not performing up to
Hartman’s standards. Hudson has not demonstrated that
the individuals who were promoted were similarly situated.
Three of them were Senior Coordinators, which is a higher
rank than the Plaintiff’s position at the time they were
promoted. No other evidence in the record supports a
reasonable inference that the denials of promotions were
motivated by retaliation. Therefore, the order granting the
CTA summary judgment on Hudson’s retaliation claims,
Counts 2,4,6,8,16,18, and 20 are affirmed.


C. Remaining Discrimination Claims
  The Plaintiff’s remaining discrimination claims do not
establish a material issue of fact as to whether the CTA’s
reasons for the promotions were pretext for discrimination.
Under the indirect method of proving Title VII claims, once
a plaintiff establishes a prima facie case by the preponder-
ance of the evidence, the employer may articulate a non-
invidious reason for the challenged action. McDonnell
Douglas 

. The plaintiff must then
establish that there is an issue of material fact as to
whether the employer’s proffered reasons are merely
pretext for unlawful discrimination or retaliation, in order
to survive summary judgment. 

Although inter-
mediate burdens shift back and forth under the McDonnell
Douglas framework, the ultimate burden of demonstrating
that the defendant intentionally discriminated always
remains with the plaintiff. St Mary’s Honor Ctr. v. Hicks,

, 511 (1993) (admonishing that at all times the
Title VII plaintiff holds “the ultimate burden of persua-
sion”).
No. 01-2014                                                13

  In order to demonstrate a material issue of fact as to
pretext, a plaintiff must show that either (1) it is more
likely that a discriminatory reason motivated the employer
than the proffered non-discriminatory reason or (2) that an
employer’s explanation is not credible. Guerrero v. Ashcroft,

, 313 (7th Cir. 2001). Pretext is more than a
mistake on the part of the employer; it is a phony excuse.
Debs v. Northeastern Illinois Univ., 

, 395 (7th
Cir. 1998). Where a defendant has proffered more than one
reason for the challenged action, a plaintiff must address all
of the employer’s suggested reasons. 

However,
we do not “sit as a super-personnel department that
reexamines an entity’s business decisions.” 

quoting Dale v. Chicago Tribune Co., 

, 464 (7th
Cir. 1986). Instead, we look to “whether the employer gave
an honest explanation of its behavior.” 

v. Rea Magnet Wire Co., 

, 560 (7th Cir. 1987)).
  In this case, the CTA can point to many legitimate
reasons for their promotional decisions and there is no
indication that these reasons were pretextual. In Hartman’s
deposition, he stated that he was looking to promote
individuals who exhibited proactive qualities and who
promised to “make changes” in the way things were run.
R.34/Hartman Dep. 117. He made it clear that anyone who
did not possess this work ethic, regardless of race, did not
have a place in his management team. Two Caucasian
managers in high ranking positions, Cargill and Haenisch,
did not perform to these standards and eventually left the
CTA. R. 34/Pl. Dep. 53, Hartman Dep. 18-19, 147. Three
African-American employees who met CTA’s standard—
Pierce, Jenkins and Baker—were promoted. R. 44/Jenkins
Aff.¶2; Pl. Dep. 58, Maloney Dep. 25. There was also a
statistical analysis conducted in late 1997 that demon-
strated that African-Americans were not under-represented
in management positions in Hudson’s department. Supp.
App. at 1-4.
14                                               No. 01-2014

  In addition, different managers at the CTA made deci-
sions for each of the promotions at issue. In each instance,
the decision maker testified to legitimate, non-discrimina-
tory reasons for his decision. The Plaintiff failed to present
evidence that the proffered reasons were pretextual.
  As discussed above, the employees who were promoted
exhibited flexibility and dedication that fit Hartman’s goal
of changing the way things were done at West Shops and
the improvement of CTA’s facilities and service. These
qualities were related to the necessary qualifications for
management positions at West Shops. As we have long
held, we will not second-guess the decision-makers’ busi-
ness judgment.
  The Plaintiff contends that the CTA’s explanations for the
promotions at issue “fail the established test for pretext”
and that the CTA must point to specific deficiencies in his
qualifications. He misconstrues the McDonnell Douglas test
as shifting the burden of persuasion onto an employer to
establish lack of pretext; the ultimate burden of persuasion
always remains on the plaintiff to show that the employer
intentionally discriminated against the plaintiff. St. Mary’s
Honor 

. The McDonnell Douglas test
merely shifts the burden of production to the employer to
produce evidence of non-discriminatory reasons for the
challenged conduct. Once the defendant has made such a
showing, and for the reasons set forth above, the CTA has,
the plaintiff has the burden of establishing pretext.
  Hudson has failed to establish a material issue of fact as
to whether the CTA’s reasons for the promotions at issue
are pretext for unlawful discrimination or retaliation. His
entire pretext argument is based on his assertion that he
was more qualified than the Caucasian males who were
promoted. We ruled in Millbrook v. IBP, Inc., 

(7th Cir. 2002), that where a plaintiff in a promotional
denial case relies solely upon a gap in credentials between
No. 01-2014                                               15

himself and the successful candidates, the gap must be so
substantial at “slap you in the face.” 

Based on
the record before us, the Plaintiff has not established a
triable issue as to whether the CTA’s reasons for promoting
others were illegal. Even if the CTA decision-makers made
the wrong decision with regard to the more qualified
employee, Hudson still would need to show that the stated
reasons were lies, offered to cover their discriminatory
motives. Hudson has not presented evidence that meets
that challenge; summary judgment on the remaining
discrimination claims is affirmed.


D. Breach of Contract Claims
  The only breach of contract claim that Hudson appeals is
the district court’s grant of summary judgment on Count 13
for breach of contract based on the denial of the right to
rotate into a manager position. The court below properly
granted summary judgment because Hudson cannot show
that the CTA breached a 1995 settlement agreement.
  The 1995 settlement provided in pertinent part:
    CTA shall use reasonable efforts to afford Mr. Hudson
    the same rights, privileges and opportunities as af-
    forded to all other Coordinators. Such rights, privileges
    and opportunities are not absolute and Mr. Hudson is
    not automatically entitled to identical treatment as
    every other Coordinator as such is impractical for a
    number of reasons. . . . As coordinator, Mr. Hudson
    shall rotate into the Manager’s position.
Br. Defendant-Appellee/App. at 33. At the CTA, when a
Vice President, General Manager, or Manager is away from
work, a lower level employee may substitute for them or
rotate into the job on a temporary basis. Each Vice Presi-
dent, General Manager, or Manager sets his or her own
policy on when rotation will occur and who should do the
rotation.
16                                              No. 01-2014

  Hudson does not dispute that from September 1995
through Spring 1998, he rotated into his manager’s position
four or five times. The district court properly held that the
settlement agreement did not establish a minimum number
of rotations to which Hudson was entitled.
  He was then transferred in March 1988 to a position that
did not require a rotation—to work under Mary Ward,
Manager of Administration, who was in charge of the CTA’s
computerized maintenance system. Hudson contends that
under Ward he was made to be “a clerical worker and that
his chances for ‘rotation’ were systematically and com-
pletely destroyed because the regulations did not allow
Hudson to rotate for anyone else.” Br. of Plaintiff-Appellant
at 45.
  The Plaintiff offers no evidence to demonstrate that there
were other opportunities for him to rotate which were
unreasonably denied or that there were even opportunities
for him to rotate into Ward’s position (e.g., Ward was on
vacation or sick). There is also no language in the settle-
ment agreement that says he must be transferred to a
position that requires a manager rotation opportunity.
There is no evidence that the CTA’s decisions not to rotate
were done to thwart Hudson.
  For the reason set forth above, we AFFIRM the district
court’s grant of summary judgment in favor of the
Defendant, the CTA.
No. 01-2014                                        17

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—7-9-04