In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2085

A LAN L. JONES,
                                              Plaintiff-Appellant,
                                v.

C ITY OF S PRINGFIELD, ILLINOIS,
                                             Defendant-Appellee.


           Appeal from the United States District Court
               for the Central District of Illinois.
             No. 05-C-3312—Richard Mills, Judge.



   A RGUED D ECEMBER 17, 2008—D ECIDED JANUARY 26, 2009




  Before B AUER, P OSNER, and M ANION, Circuit Judges.
  M ANION, Circuit Judge. Alan Jones, then a patrol officer
in the Springfield, Illinois, Police Department, was next
in line for promotion to sergeant when the City’s promo-
tion eligibility list expired. As a result, the City created
a new list and Jones was not promoted to sergeant until
two years later. Jones, a white man, sued under Title VII,
arguing that he was not promoted because of his race.
Jones concedes that when the list expired there was no
2                                             No. 08-2085

vacancy into which he could have been promoted, but
argues that in the past the Department had sometimes
made promotions before a vacancy became official. Jones
contends that an unofficial vacancy existed when the
list expired and that had he been black, the City would
have promoted him into that unofficial vacancy. The
district court granted summary judgment to the City.
Because Jones has failed to present evidence showing
either that a vacancy actually existed or that the City
chose not to create a vacancy for discriminatory reasons,
we affirm.


                            I.
  The Springfield Police Department makes promotions
from a promotion eligibility list on which officers are
ranked based on their scores on a written and oral exam,
length of any military service, and seniority in the De-
partment. A new list is created every two years, but the
Civil Service Commission may delay the creation of a
new list by one year. The list in question here was sched-
uled to expire on October 5, 2003, but the Commission
voted to extend it by one year. A member of the Com-
mission testified in a state court proceeding that the
decision was motivated in part by a belief that the ex-
tension would increase the chances that a specific black
officer would be promoted to sergeant. That black officer,
Ralph Harris, was third in line for promotion to ser-
geant—at the time all sergeants were white males—and
might not have ranked as high on a new list. Police Chief
Donald Kliment opposed the extension because in the
No. 08-2085                                                 3

time since the list had been created, more minority and
female officers had become eligible for promotion.
Kliment believed that a new list, which included those
minority and female officers, would better serve the
Department’s goal of having a more diverse leadership.
  Following the Commission’s decision to extend the list,
no promotions were made until October 1, 2004, four days
before the list’s expiration. On that day, the top three
patrol officers on the sergeant’s eligibility list were pro-
moted to spots opened up by other officers’ retirements
or promotions. Only one of those three, Officer Harris,
was black. Jones, who ranked fourth on the list, was not
promoted and the list expired. The Commission then
used the scores on a new exam to create a new list on
which Jones ranked twelfth.1 Jones was eventually pro-
moted to sergeant two years later in December 2006.
  Although there was no open position for Jones before
the list expired, a position appears to have opened shortly
after it expired. That position may have opened when, four
days after the list’s expiration, Patrick Fogleman was
officially promoted from lieutenant to deputy chief.
Despite the official date of promotion, there is no dispute
that Fogleman began training for his new position and
assumed some of its duties before the list expired. In the
past, the Department had made at least four promotions
before an opening was official, and a decision to make


1
  The new list is part of the record on appeal, but the record
does not contain any information about the race of the
officers on that list.
4                                                 No. 08-2085

an early promotion to fill Fogleman’s lieutenant position
would have opened a sergeant slot for Jones. But the
Department did not make that decision, and the record
contains no evidence explaining how the vacancy created
by Fogleman’s promotion was filled or whether it was
ever filled. The Department has the discretion not to fill
a position and had used that discretion a few months
earlier to eliminate an open position and redistribute
departmental funding.
  After the list expired without his being promoted,
Jones sued the City under Title VII, 42 U.S.C. § 2000e-5,
claiming that he was passed over for promotion because
of his race. Jones acknowledged that there was no
official vacancy, but pointed out that due to Fogleman’s
impending promotion, the Department knew that there
would be a vacancy shortly after the list’s expiration
and could have given him an early promotion. He argued
that the Department would have given him that early
promotion if he were black.
  After discovery, the City successfully moved for sum-
mary judgment. The district court determined that Jones
failed to present evidence showing he could succeed in
his Title VII claim under either the direct or indirect
methods of proof. Jones v. City of Springfield, 

(C.D. Ill. 2008). Under the direct method, the
court determined that Jones had not presented enough
evidence from which a jury could find that his failure to
be promoted to sergeant was racially discriminatory;
there was evidence of four early promotions in the past,
but three of the four promoted officers were white and
No. 08-2085                                               5

only one was black. 

Further, the court found
that Jones had not identified a similarly situated black
officer who was treated more favorably. 

Jones and Harris ranked next to each other on the list, but,
the court explained, they were not similarly situated
because there was only one vacant sergeant position to
be filled. 

Under the indirect method, the
court found the City’s explanation for not promoting
Jones—that there was no open position into which to
promote him—was legitimate and nondiscrimina-
tory; that is, it was not a pretext for discrimination. 

                            II.
  On appeal Jones renews his argument that he presented
enough evidence to reach a jury under the direct and
indirect methods of proving a Title VII violation. See
generally Atanus v. Perry, 

, 671-73 (7th Cir.
2008). We review the grant of summary judgment
de novo, taking all facts in the light most favorable to
Jones, the nonmoving party. See, e.g., AutoZone, Inc. v.
Strick, 

, 929 (7th Cir. 2008).
  Under the direct method of proof, a plaintiff survives
summary judgment by showing sufficient evidence,
whether it is labeled direct or circumstantial, on which a
jury could find that the adverse employment action
in question was taken for a discriminatory reason.

. One type of circumstantial evi-
dence that can demonstrate intentional discrimination is
6                                                No. 08-2085

evidence that “employees similarly situated to the
plaintiff other than in the characteristic (pregnancy, sex,
race, or whatever) on which an employer is forbidden to
base a difference in treatment received systematically
better treatment.” Rudin v. Lincoln Land Community
College, 

, 721 (7th Cir. 2005) (internal quotation
omitted). Jones believes that the facts surrounding
Harris’s promotion reflect such systematically better
treatment. But as the district court explained, 

, Jones and Harris may have had
similarities, but they were not similarly situated for the
simple reason that Harris was ranked ahead of Jones on
the eligibility list. See Raymond v. Ameritech Corp., 

, 611 (7th Cir. 2006). Jones points to evidence sug-
gesting that race played a role in Harris’s promotion: the
extension of the eligibility list for one year, the pressure
exerted on the Commission by aldermen and representa-
tives of Springfield’s black community who wanted a
more diverse police force, and statements that Jones says
the mayor made to him about his desire to promote Harris
because of his race. The City unconvincingly denies that
race influenced Harris’s promotion, but the motivation
behind Harris’s promotion is only a secondary question.
The primary question is whether Jones can show an
improper reason for the City not promoting him.
  To show that he was passed over for a promotion
based on an improper and discriminatory reason, Jones
argues that he presented sufficient evidence for a jury to
find that had he been black, the City would have promoted
him before the list’s expiration. It is safe to assume that
Jones’s evidence could convince a jury that the City made
No. 08-2085                                                       7

certain discretionary moves in order to promote Harris at
least partly on account of race.2 The problem is the next
step. Jones believes that there is also enough evidence for
a jury to find that the City would have made a different
discretionary move—promoting him before a vacancy
officially existed—if he were black. But the evidence
simply does not support that. As the district court noted,
only one of the four known prior instances of early promo-
tions involved a black officer. More importantly, though,
the record reveals nothing about the circumstances sur-
rounding any of those early promotions. Jones com-
plains that the City has not explained why it did not
give him an early promotion, but that gets the burden
backward. Under the direct method, the plaintiff has the
burden of proving discrimination. All Jones can prove is
that the practice of early promotions exists. He has not
shown, for example, that it was used only to promote
black officers. He has not even shown why it was ever


2
   Jones believes that Harris was promoted before there was
an official vacancy, and the district court treated this claim as
fact, although it was unclear on the details. 

n.3, 1034. Jones appears to be mistaken. The undisputed
evidence actually shows that Harris was promoted to sergeant
on October 1, 2004, the same day that Stephen Swetland, the
officer Harris was replacing, was promoted to lieutenant.
Swetland appears to have been promoted early: the resignation
of the lieutenant he replaced was effective one day after
Swetland’s promotion. But even if Harris had been promoted
a day or two before an official vacancy, Jones has not
disputed that Harris was promoted into a position that was
officially vacant before the eligibility list expired.
8                                                No. 08-2085

used. Thus, as the district court correctly held, 

, no jury could find that the City would
have given Jones an early promotion if he were black.
   Jones also argues under the indirect method of proof that
the City’s explanation for failing to promote him—that
there was no open position—is a pretext for discrimination.
Jones makes this argument under the heading of pretext
because that is how the district court treated it. After a
somewhat muddled discussion of whether Jones could
make a prima facie case of discrimination, the court
assumed that he could and moved on to pretext, eventually
holding that Jones could not rebut the City’s legitimate
and nondiscriminatory explanation for failing to
promote him. 

. We have
cautioned district courts against skipping over the prima
facie case and moving directly to pretext. See Hague v.
Thompson Distribution Co., 

, 823 (7th Cir.
2006); Coco v. Elmwood Care, Inc., 

, 1178
(7th Cir. 1997). Here, the district court should have con-
sidered the availability of an open position under the
prima facie case because in a failure-to-promote claim, a
prima facie case presupposes the existence of an open
position. See Howard v. Lear Corp. EEDS & Interiors, 

, 1005-06 (7th Cir. 2000) (defining second prong
of prima facie case in failure-to-promote claim as plain-
tiff “applied for, and was qualified for an open position”).
  The lack of an opening is always a legitimate reason for
refusing to hire or promote. See Int’l Bhd. of Teamsters v.
United States, 

, 358 n.44 (1977); Perez v.
Region 20 Educ. Serv. Ctr., 

, 325 (5th Cir. 2002).
No. 08-2085                                                 9

If, for example, no employee is promoted during the
relevant time period, a failure-to-promote claim must
fail because the claimant cannot argue that he was
treated differently than anyone else. See Kulumani v. Blue
Cross Blue Shield Ass’n, 

, 683 (7th Cir. 2000). In
other words, Title VII does not mandate the creation of
new positions. See Hottenroth v. Village of Slinger, 

, 1033 (7th Cir. 2004); Williams v. R.H. Donnelley, Corp.,

, 127-28 (2d Cir. 2004); Cooper v. St. Cloud State
Univ., 

, 968 (8th Cir. 2000). In rare cases, the
decision not to create a position can be discriminatory, but
there must be evidence showing that the decision was
racially motivated. See Williams v. Consol. City of Jackson-
ville, 

(11th Cir. 2003). As the discussion
above under the direct method shows, Jones has not
produced evidence that would support such a showing.
   Thus, Jones’s claim under the indirect method fails
because he cannot show that there was an open position
into which he could have been promoted. Jones points to
Fogleman, the officer whose impending promotion
would have opened a spot into which a sergeant could
have been promoted, thereby creating a spot into which
Jones could have been promoted. But as explained above,
the vacancy created by Fogleman did not exist before
the expiration of the promotion eligibility list. Moreover, as
the district court explained, Jones has not presented
evidence showing that the vacancy was ever filled. 

. The Police Chief is free to
eliminate a position instead of promoting an officer into
it; he had done just that a few months earlier in order to
redistribute departmental funding. Jones has presented
10                                            No. 08-2085

evidence showing that an open position could have been
created for him, but he simply has not presented enough
evidence from which a jury could find that an open
position actually existed. For that reason, he cannot make
a prima facie case of discrimination.


                           III.
  Because Jones failed to present evidence showing that
there was an open position into which he could have
been promoted or that the City decided not to create a
position for him because of his race, we A FFIRM .




                          1-26-09