In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2355

R ICH STOCKWELL, et al.,
                                                Plaintiffs-Appellants,
                                  v.

C ITY OF H ARVEY,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 1:07-cv-05868—Robert W. Gettleman, Judge.



    A RGUED O CTOBER 28, 2009—D ECIDED M ARCH 12, 2010




 Before R IPPLE, W ILLIAMS and T INDER, Circuit Judges.
  R IPPLE, Circuit Judge. The plaintiffs, Rich Stockwell,
Gary Stockwell, Ron DeYoung and Steve Ciecierski
brought this action against the City of Harvey, Illinois
(the “City”). They allege that the City failed to promote
them within its fire department (the “Department”) on
account of their race. The district court granted summary
judgment for the City, and the plaintiffs appealed. For
the reasons set forth in this opinion, we affirm the judg-
ment of the district court.
2                                              No. 09-2355

                             I
                    BACKGROUND
  Because this is an appeal from a grant of summary
judgment, we take the facts in the light most favorable to
the plaintiffs. See Muro v. Target Corp., 

, 487
(7th Cir. 2009).
  In November 2005, Jason Bell was appointed as the
City’s fire chief by its mayor, Eric Kellogg. Prior to this
appointment, Deputy Fire Chief Bruce Randall, who was
white, had asked that he be allowed to return to his
position as a captain. In light of Randall’s departure,
the City determined that Chief Bell would need
assistance in administering the Department and,
therefore, decided to hire not only a new Deputy Chief,
but three Assistant Chiefs as well.
  A sign-up sheet was posted so that firefighters could
express their interest in the positions. The sign-up sheet
informed applicants that “[a]ny member of the
classified service with a minimum of ten years active
service with the Harvey Fire Department may apply.”
R.29, Attach. 13. Each of the plaintiffs indicated his
interest in the Assistant Chief position, and, with the
exception of Mr. DeYoung, each also indicated that he
was interested in the position of Deputy Chief. In
total, nine individuals signed up to be interviewed for
Assistant Chief, and eight for Deputy Chief. Of the ap-
plicants, three were African-American (Willie Buie,
William Tyler and Phil Patterson); the remainder were
white.
No. 09-2355                                               3

  Before interviewing the applicants, Chief Bell offered
the position of Deputy Chief to Captain Steve Gorman;
Captain Gorman is white. Although Captain Gorman
had not applied, Chief Bell believed that he “was the
best guy for the job.” R.37 at 150-51. Captain Gorman,
however, conveyed to Chief Bell that he was not inter-
ested because he wanted to ride on the engine.
  Prior to conducting any interviews, Chief Bell, along
with Public Safety Fire Administrator (“PSFA”) William C.
Bell, Jr.,1 created a written overview of the positions,
which set forth both desirable and unacceptable
qualities (“Overview Document”). This document made
clear that the Department was looking for competence,
loyalty, dedication and confidence. Unacceptable traits
included selfishness, complaining, dishonesty and under-
mining authority.
  On January 12, 2006, Chief Bell, PSFA Bell and Civil
Service Commission Chair Herman Head interviewed
the candidates. Each candidate was evaluated on a 1-5
scale in the categories of “Initial impression, decorum,
and appearance”; “Interest, dedication and commitment”;
“Character and Honesty”; “Personality and Teamwork
Ethic”; “Overall poise and general ability to Communi-
cate” and “Education and Certifications.” See, e.g., R.29,
Attach. 22. Although all three interviewers stated that
each interviewer filled out his own evaluation, only
Chief Bell’s evaluation forms appear in the record. More-


1
  PSFA Bell is Chief Bell’s father. The PSFA was involved in
running all of the City’s departments.
4                                               No. 09-2355

over, the list of total scores provided by the City corre-
sponds to Chief Bell’s scores for the plaintiffs. In light
of this record, and in light of the undisputed fact that
Chief Bell made the final decision about whom to
promote, we shall focus on Chief Bell’s evaluations and
on his bases for those evaluations.
   After completing the interviews, Chief Bell made his
promotion decisions. He stated that the interview scores
were useful, but not determinative, in making those
decisions: “After the interviews[,] [i]t wasn’t an
immediate promotion. It wasn’t, ‘okay, these are the
numbers, take these guys with the highest number and
they are promoted.’ That was not the case.” R.37 at 153.
Chief Bell formulated a list of individuals based on “the
totality of” the characteristics set forth on the Overview
Document; he was looking for individuals he believed
“really wanted the job and who [were] ready to give
their all to their job.” 

Although his selections
were approved by PSFA Bell and the comptroller, Chief
Bell testified that “the decision of who I wanted is who
I submitted and subsequently got.” 

  The four highest scores belonged to Buie, Tyler, Richard
Climpson and Patterson. Buie, Tyler and Patterson ulti-
mately received promotions. Chief Bell discussed the
promotion with Climpson; however, Climpson deter-
mined that it was in his own best interest, as well as that
of the City, not to pursue the promotion at that time.
The next highest score belonged to Rich Stockwell.
Chief Bell did not offer a position to Mr. Stockwell. Ac-
cording to Chief Bell, Mr. Stockwell had indicated to
No. 09-2355                                                5

Chief Bell that he would be retiring soon, and Chief Bell
did not want to fill the positions with individuals who
were using the promotion as a stepping stone to retire-
ment. However, Chief Bell did offer a position to William
Canavan, who had the next highest score, but he
declined to accept it. Chief Bell then offered the final
open position to Jeff Cook. Cook, who is white, neither
applied for the position nor participated in the formal
interview process. Nevertheless, Chief Bell spoke infor-
mally to Cook about the positions on several occasions.
Chief Bell perceived Cook to be “very knowledgeable” and
an employee who “put the department first,” and, there-
fore, believed that Cook “would be a good asset to the
management staff.” 

                             II
          DISTRICT COURT PROCEEDINGS
  Mr. DeYoung, Mr. Ciecierski and the Stockwells
brought this Title VII action in the district court, alleging
that the City had failed to promote them on account of
their race. The City moved for summary judgment, and
that motion was granted.
   The district court held that the plaintiffs had failed to
establish a prima facie case of race discrimination under
McDonnell Douglas Corp. v. Green, 

(1973). The
district court explained that for a white plaintiff to estab-
lish the first prong of the prima facie case—that he
belongs to a protected class—he “must establish ‘back-
ground []circumstances sufficient to demonstrate that the
6                                               No. 09-2355

particular employer has reason or inclination to discrimi-
nate invidiously against whites or evidence that there is
something fishy about the facts at hand.’ ” R.48 at 4-5
(quoting Hague v. Thompson Distrib. Co., 

,
822 (7th Cir. 2006)). The plaintiffs had argued that the
City’s “ ‘minority only’ hiring practices . . . that followed
the election of Eric Kellogg in 2003” were sufficient to meet
this prong; specifically, they noted that, since 2003, the
City had hired only one white person to fill 32 positions
in its police department. The court held, however, that
“this [wa]s not necessarily compelling evidence to sup-
port an inference that defendant discriminated against
the majority because it regards the police department,
not the fire department.” 

  The district court also determined that the plaintiffs had
not established the fourth prong—that a similarly or
lesser qualified non-white candidate was treated more
favorably. The district court explained:
      With regard to the fourth element, defendant
    contends that when filling the deputy chief and
    assistant chief positions, Chief Bell asked four
    white men in the Harvey Fire Department to fill
    these positions, one of which accepted an assistant
    chief position. Promotion of one member of the
    disputed class does not necessarily defeat the
    prima facie case. The prima facie case is a flexible
    standard that is not intended to be applied rigidly.
    The exact content of the fourth prong may vary
    from case to case to take differing circumstances
    into account.
No. 09-2355                                               7

       Although the promotion of one white firefighter
    may not automatically defeat the suggestion that
    the defendant treated non-whites more favorably,
    the instant case provides compelling evidence
    that this was not a case of reverse discrimination
    against the majority class. Here, prior to making
    its final decision on promotion, defendant had
    offered the position to four different white males.
    Plaintiffs have offered no evidence that could
    demonstrate that these were illegitimate offers,
    offers that defendant knew would not be accepted,
    or improper motivation. The uncontested facts,
    therefore, establish that defendant did not use
    discriminatory bias when filling the positions.
R.48 at 5-6 (internal citations omitted).
  The plaintiffs now appeal.


                             III
                      DISCUSSION
  Title VII prohibits discrimination “against any individual
with respect to his compensation, terms, conditions, or
privileges of employment” on account of race. 42 U.S.C.
§ 2000e-2(a)(1). An employer’s refusal to promote an
employee on account of race is a violation of Title VII. See
Grayson v. City of Chicago, 

, 747-48 (7th Cir.
2003). Here, the plaintiffs have attempted to establish
their failure-to-promote claim using the McDonnell
Douglas indirect method of proof.
8                                                 No. 09-2355

  The analysis of Title VII claims brought under McDonnell
Douglas proceeds in three stages. First, the plaintiff must
establish a prima facie case. Ordinarily, the four elements
of the prima facie case in a failure-to-promote context are
that the plaintiff (1) was a member of a protected class;
(2) that he was qualified for the position; (3) that he
was rejected for the position; and (4) that the position
was given to a person outside the protected class who
was similarly or less qualified than he. Jackson v. City of
Chicago, 

, 622 (7th Cir. 2009). In a reverse
discrimination case such as this one, we have replaced
the first element with a requirement that the plaintiff
show “background circumstances” suggesting that the
employer discriminates against the majority. Farr v. St.
Francis Hosp. & Health Ctrs., 

, 833 (7th Cir.
2009).
  After the plaintiff has made out a prima facie case, the
burden shifts to the defendant to produce a legitimate,
nondiscriminatory reason for the employment action. This
is a light burden. Pilditch v. Bd. of Educ. of City of Chicago,

, 1117 (7th Cir. 1993) (citing Texas Dep’t of
Cmty. Affairs v. Burdine, 

, 254-56 (1981)). Once
the employer has articulated a legitimate, nondiscrimina-
tory reason for its decision, the presumption of discrimina-
tion falls away. Cianci v. Pettibone Corp., 

, 726
(7th Cir. 1998). The plaintiff then has the burden of pro-
ducing sufficient evidence to show that reason to be
pretextual. See McDonnell 

, 804.
  The plaintiffs ask us to reconsider the “background cir-
cumstances” requirement. There is no necessity for us to
No. 09-2355                                                      9

confront that issue today. Indeed, we need not address
any of the plaintiffs’ arguments with respect to whether
they have established a prima facie case because, even
if we assume that the plaintiffs have met this burden, we
still must hold that they have failed to produce
sufficient evidence of pretext.2
  In order “to show pretext, a plaintiff must show that
(1) the employer’s non-discriminatory reason was dis-
honest and (2) the employer’s true reason was based on
a discriminatory intent.” Fischer v. Avanade, Inc., 

, 403 (7th Cir. 2008) (internal quotation marks,
citations and brackets omitted). See also Hobbs v. City of
Chicago, 

, 462 (7th Cir. 2009). If the plaintiff
uses indirect evidence to meet his burden, he must show
that the employer’s reason is not credible or factually
baseless. 

. The plaintiff also



2
   Although the district court did not address the pretext issue,
finding instead that the plaintiffs failed to establish a prima
facie case, it is well-settled that we may affirm on any ground
supported by the record, so long as it has been adequately
presented below. E.E.O.C. v. Lee’s Log Cabin, Inc., 

,
442 (7th Cir. 2008). The presentment requirement exists
because, if the issue is not raised below, the nonmovant has
no obligation to present evidence on the point. See Sublett v.
John Wiley & Sons, Inc., 

, 736 (7th Cir. 2006). In this
case, the City contended in its motion for summary judgment
that it had set forth legitimate nondiscriminatory reasons for
its decision, and it asserted that the “plaintiffs have no
evidence that proves that Harvey’s legitimate reasons are
pretextual.” R.28 at 10.
10                                               No. 09-2355

must provide evidence that supports the inference that
the real reason was discriminatory. 

rect proof of pretext is permissible, we must remem-
ber that, even if the business decision was unreasonable,
pretext does not exist if the decisionmaker honestly
believed the nondiscriminatory reason. Little v. Illinois
Dep’t of Revenue, 

, 1012 (7th Cir. 2004). This
is because courts are not “superpersonnel depart-
ment[s]” charged with determining best business prac-
tices. Blise v. Antaramian, 

, 867 (7th Cir.
2005) (quotation marks and citations omitted). Subjective
evaluations of each candidate are entirely consistent
with Title VII. 

                             A.
  The plaintiffs submit that they have provided suf-
ficient evidence of pretext because Chief Bell offered
positions to individuals who never had signed up to be
interviewed. We cannot accept this argument. Chief Bell
testified that the plaintiffs had traits or were in situations
that, according to the Overview Document, made them
unacceptable. The fact that Chief Bell went outside the
interview process in an attempt to find individuals
who did not present these negative attributes and were
a better fit for the position does not show pretext. Al-
though the plaintiffs were not completely unqualified (for
example, they had a long history of service to the Depart-
ment), the fact the employer seeks out other individuals
who are better qualified does not show pretext. Here,
No. 09-2355                                             11

according to Chief Bell, the plaintiffs presented specific,
but significant, negative attributes that made them less-
than-ideal candidates for specific positions at issue.
  It is important to note that Chief Bell does not maintain
that the nondiscriminatory basis for their rejection
was simply the interview scores. Chief Bell specifically
testified that he did not simply identify the highest
scorers and offer them positions. Chief Bell also testified
at length about his impressions of the plaintiffs.


                            B.
  We now address the pretext arguments particular to
each plaintiff.


1. Mr. DeYoung
  Chief Bell identified in his deposition the reason for
rejecting Mr. DeYoung. He stated that he had worked
“on shift” with Mr. DeYoung for many years and that
Mr. DeYoung “would always be sort of negative.” R.37
at 137. This observation caused Chief Bell to believe
that Mr. DeYoung “possibly” might undermine manage-
ment. 

also stated that he believed that all
the plaintiffs, except Rich Stockwell, would resist change.
Both “[t]hose who constantly undermine authority” and
“[t]hose who . . . resist change” appeared under “Qualities
and Characteristics that are not Acceptable” in the Over-
view Document. R.29, Attach. 12 at 3. Far from contra-
dicting Chief Bell, Mr. DeYoung admitted in his deposi-
12                                                   No. 09-2355

tion that someone, whom he was unable to identify, had
spoken to him about his perceived negative attitude.3


3
   Moreover, Mr. DeYoung admitted in his own deposition
that he wore his duty uniform to the interview instead of his
dress uniform. Although Chief Bell did not remark on this, his
score sheet gives Mr. DeYoung a “2” in the category of “Initial
impression, decorum and appearance.” R.29, Attach. 17. This
is enough to support an inference that Mr. DeYoung’s choice
of wardrobe played a role in Chief Bell’s decision.
   The City also relies on Mr. DeYoung’s alleged abuse of sick
time and lack of familiarity with the Mayor’s vision for the City.
However, we believe that, when all reasonable inferences
are drawn in favor of the nonmovant, the trier of fact could
find that Chief Bell learned of Mr. DeYoung’s abuse of sick
time after filling the positions.
   The only evidence that Chief Bell relied on Mr. DeYoung’s
lack of knowledge of the Mayor’s vision is a letter that Mr.
DeYoung claims is inadmissible hearsay. The City claims that
the letter is a business record. This is a problematic contention
because, although PSFA Bell authenticates the letter, there is
no evidence that lays the business record foundation. While it
is quite possible that the foundation could be laid, it is not
obvious. Although the City directs our attention to Eisenstadt
v. Centel Corp., 

(7th Cir. 1997), that case does not
help its cause. In that case, we suggested that certain unattested
hearsay documents, other than depositions and affidavits,
might be admissible at the summary judgment stage in certain
circumstances. 

As an example, we noted “a letter
inadmissible only because the signature on it had not been
verified and there was no doubt that it could and would be.” 

09-2355                                                      13

  Mr. DeYoung claims that Chief Bell’s testimony is “far
less than an unambiguous statement that ‘I did not
select DeYoung because I believed that if selected to be
assistant Chief, he would undermine management.’ ”
Appellant’s Br. 16. While such an explicit statement of
a reason is generally helpful to employers, it is not a
necessary ingredient in the assertion of a non-pretextual
reason for a personnel decision. The defendant only has
to produce admissible evidence that would permit a
rational jury to conclude that the employment decision
had not been motivated by discriminatory animus.
Anaeme v. Diagnostek, Inc., 

, 1279 (10th Cir.
1999) (citing 

). Here, the City
put forth evidence that Chief Bell—the individual who
made the hiring decision—had, at the relevant time, a
personal belief that Mr. DeYoung might undermine


3
  (...continued)
To admit the letter here, however, might require a “broader
dispensation to disregard the rules of evidence.” See 

strength of this contention, the plaintiffs did not raise a
hearsay objection in any of their eight motions to strike. They
did, however, mention the hearsay issue in their memorandum
in opposition to summary judgment. In any event, however, the
City has provided an ample nondiscriminatory explanation
without relying on the letter. If we did consider the letter and set
aside all waiver issues, we would simply note that the letter
alone would supply a non-pretextual, nondiscriminatory
explanation. Mr. DeYoung admitted in his deposition that he
did not articulate the Mayor’s slogan. R.29, Attach. 4 at 5
(“I didn’t understand the question . . . . I didn’t know they were
looking for a slogan.”).
14                                               No. 09-2355

management and resist change. There is also evidence
that these qualities were, at the time, considered unac-
ceptable traits for members of the Chief’s administrative
team. This evidence is sufficient to allow a fact-finder to
conclude that these nondiscriminatory factors drove
the employment decision.
  Mr. DeYoung, therefore, has not produced evidence
of pretext. Although he stated in his deposition that he
“never said no” to “special things, block parties, stuff like
that,” gave 110 percent, and saved a little boy’s life, R.29,
Attach. 4 at 5, he admitted that others thought him to be
negative and that he did not wear his dress uniform to
the interview. The perception of the decisionmaker is
controlling. Adreani v. First Colonial Bankshares Corp., 

, 398 (7th Cir. 1998) (ADEA case).


2. Mr. Ciecierski
  Chief Bell believed that Mr. Ciecierski possibly would
not support him because Mr. Ciecierski had stated in his
interview that he wanted to be Chief. Mr. Ciecierski was
also among those who Chief Bell believed would resist
change. As in the case of Mr. DeYoung, Chief Bell’s
personal knowledge of these considerations, at the
relevant time, satisfies the City’s burden.
   Chief Bell also testified that he believed Mr. Ciecierski
to be dishonest and untrustworthy. These are, according
to the Overview Document, unacceptable qualities. In
filling out score sheets, Chief Bell gave Mr. Ciecierski a “1”
for “Character and Honesty.” R.29, Attach. 16. Chief Bell
No. 09-2355                                                       15

testified that, during Mr. Ciecierski’s interview, he
stated that Chief Bell never commanded a fire. Chief
Bell considered that allegation “a blatant lie.” R.37 at 146.
  Mr. Ciecierski makes much of Chief Bell’s comment that
Chief Bell formed his opinion of Mr. Ciecierski’s dishon-
esty “more so after” the selection process. 

Chief Bell’s testimony about the interview, however,
combined with the score sheet, provides a sufficient
basis for a fact-finder to conclude that concern about
dishonesty was a factor in Chief Bell’s decision.4


4
   Mr. Ciecierski testified that Patterson “spent a lot of time over
on the other side of the building, violating the chain of com-
mand.” R.29, Attach. 8 at 7. He testified that Willie Buie had, at
one point, stood and talked to PSFA Bell rather than fight a
fire. He also stated, in reference to the unacceptable characteris-
tics, that “[t]here is no one on that list that has not been
accused of something on this list.” 

Although strong
evidence of negative qualities might, in some cases, be suf-
ficient to constitute indirect proof that the decisionmaker
knew of the qualities, the self-serving statements of these
plaintiffs are not sufficient. See Petts v. Rockledge Furniture LLC,

, 726 (7th Cir. 2008) (holding that plaintiff’s own
reliance on relative qualifications is insufficient to show
pretext); Millbrook v. IBP, Inc., 

, 1181 (7th Cir. 2002)
(“[A]n employee’s perception of his own performance . . . cannot
tell a reasonable factfinder something about what the employer
believed about the employee’s abilities.” (ellipsis in original;
quotation marks and citation omitted)); Ost v. W. Suburban
Travelers Limousine, Inc., 

, 441 (7th Cir. 1996) (holding
that plaintiff’s opinion that she was more qualified than
either individual who was hired did not establish pretext). The
                                                       (continued...)
16                                                  No. 09-2355

   Mr. Ciecierski has not provided any basis for a jury to
conclude that Chief Bell did not honestly hold his be-
liefs. Indeed, he testified that he had been critical of
both PSFA Bell and Chief Bell. There was therefore suf-
ficient evidence of a legitimate, nondiscriminatory
reason for Mr. Ciecierski’s nonselection.


3. Gary Stockwell
  Chief Bell testified that Gary Stockwell had written or
spray painted on a safety house 5 to show his dissatisfac-
tion with the project. Chief Bell consequently believed
that Mr. Stockwell possibly would not be supportive of
the fire department. He also testified that Mr. Stockwell
did “a lot of complaining.” R.37 at 136. Once again, the
decisionmaker’s knowledge of negative qualities (or
even the mere possibility of negative qualities) at the
relevant time provides an adequate basis for the fact-finder
to conclude that these potential negative qualities
drove the employment decision.6 Indeed, the fact that


4
  (...continued)
plaintiffs produce no disciplinary records, no testimony of
superiors and no other corroborating testimony. None of the
plaintiffs linked their knowledge of these negative attributes
to Chief Bell.
5
 The safety house was a demonstration model used by the
Department in educational problems.
6
 Mr. Stockwell and the other plaintiffs appear to argue that
Chief Bell became aware of these negative qualities after filling
                                                 (continued...)
No. 09-2355                                                        17




6
  (...continued)
the positions. He relies on the following exchange from Chief
Bell’s deposition:
    Q: So at the time you were involved in filling the vacant
    position of deputy chief and assistant chief, were you
    aware of any disloyalty on the part of any of the plain-
    tiffs?
    A: No, not on any part of the plaintiffs, no.
    Q: At the time you were involved in filling the vacant
    positions, were you aware of any disloyalty on the part
    of the plaintiffs—on any part of any of the plaintiffs to
    the fire department of the City of Harvey?
    A: No, not to the fire department, no.
    Q: At the time you were involved with filling the
    four—strike that. At the time you were involved in
    filling the vacant positions of deputy chief and assistant
    chief, were you aware of any problems that any of the
    plaintiffs had in working with you?
    A: Prior, no.
Reply Br. 7-8 (citing R.37 at 131-32). Even taking this testimony
in the light most favorable to the plaintiffs, it cannot bear the
weight that the plaintiffs place on it. The context is critical. Chief
Bell had just identified instances of disloyalty on the part of
Mr. DeYoung and the Stockwells (abusing sick time and
falsifying Gary Stockwell’s residence). These statements can
be read to refer to those instances, but cannot be read to
sweep beyond that. Later in the deposition, Chief Bell was
specifically asked, “At the time you were involved in filling the
vacant firefighter position, did you believe that any of the
                                                       (continued...)
18                                                 No. 09-2355

Chief Bell gave Mr. Stockwell a “1” on his score sheet for
“Personality and Teamwork Ethic” provides additional
support for this basis.7




6
  (...continued)
plaintiffs had not been supportive of the fire department?”
R.37 at 135. He also was asked, “Did you ever believe that any
of the plaintiffs would always complain or look to com-
plain about things?” 

That testimony expressed
Chief Bell’s concerns about Gary Stockwell on which we
primarily rely.
7
  We do not rely on Mr. Stockwell’s alleged falsification of his
residence as a legitimate, nondiscriminatory reason for Chief
Bell’s failure to promote him because a reasonable fact-finder
could conclude that Chief Bell did not become aware of this
until after the selection process.
  We also need not rely on Mr. Stockwell’s rejection letter,
which stated that he lacked the confidence to be an effective
Chief. Our comments about Mr. DeYoung’s rejection letter
apply here, with one caveat: The plaintiffs did not specifically
challenge Mr. Stockwell’s letter at all. As in the case of
Mr. DeYoung, we note that the City has provided an ample
nondiscriminatory basis for its decision without the letter. The
letter would suffice by itself to support summary judgment
for the City. Gary Stockwell’s own deposition testimony
reveals that he remarked in his interview that he believed that
at least three or four other candidates were more qualified
than he. This is a slightly different formulation than used in
the letter (which said “three or four candidates who you felt
could do the job better,” R.29, Attach. 19) but does not under-
mine the conclusion that Chief Bell believed that Mr. Stockwell
lacked confidence.
No. 09-2355                                                 19

   Mr. Stockwell puts forth no evidence that Chief Bell did
not believe these justifications. He admitted that he wrote
“Elmo’s house” on the safety house. R.29, Attach. 7 at 6.
The only example he provided of his support for the
fire department was from the 1980s and early 1990s. He
had no run-ins with the administration.8


4. Rich Stockwell
  Mr. Stockwell claims that there is a genuine issue of
material fact with respect to the City’s proffered reason
for failing to promote him. Chief Bell testified that, even
before posting the sign-up sheet, Mr. Stockwell told
him that he soon would be leaving the Department and
that, consequently, the Chief concluded that Rich
Stockwell would not be dedicated and committed to the
Department over the “long haul.” See R.29, Attach. 12 at 3.
Later in his deposition, Chief Bell discussed another
conversation with Mr. Stockwell, which occurred after
interviews, but before the promotion decisions were
made. Chief Bell testified that, when he told Mr. Stockwell
that he “was high on everybody’s list,” Mr. Stockwell
implied that he was retiring. R.37 at 159.
  Mr. Stockwell maintains, however, that Chief Bell’s
statements cannot be squared with statements that


8
  Mr. Stockwell filed grievances on behalf of the union, but
because Chief Bell never said anything about that activity,
we have no reason to believe that he held it against Mr. Stock-
well.
20                                               No. 09-2355

Mr. Stockwell made in his own deposition. Mr. Stockwell
testified that he never suggested “before December, 2005”
or “before [he] applied” that he planned to retire. R.37
at 224-25. He did testify about a conversation with
Chief Bell that occurred after decisions were made.
Mr. Stockwell asked how he did, and Chief Bell’s
response was, “you did well.” 

Mr. Stockwell
testified that he retired “mostly because of not being
able to obtain this position.” 

Mr. Stockwell
believes that this conflicting testimony raises a genuine
issue of material fact with respect to whether he had
communicated his intention to retire prior to the
interviews and, therefore, whether Chief Bell could have
gotten the impression that he was not dedicated to the
Department for the “long haul.” See R.29, Attach. 12 at 3.
  On close examination, however, we do not perceive
there to be a true conflict between the testimony of Chief
Bell and that of Rich Stockwell that creates a genuine
issue of material fact concerning Chief Bell’s motivation
in passing over Mr. Stockwell. In his deposition, Chief Bell
testified as follows:
     Q. At the time you were involved in filling the
     vacant—strike that. At the time you were involved
     in filling the deputy chief and assistant chief
     positions, did you believe that any of the plaintiffs
     were just trying to pension off at a higher rank in
     salary?
     A. I didn’t believe that, but the one instance, yes,
     I was led to believe that.
No. 09-2355                                               21

   Q. And which person did that involve?
   A. Rich Stockwell. I talked to him one time dis-
   tinctly I remember. And he was just saying that he
   couldn’t really do this anymore and he was—he
   was going to be getting out pretty soon.
   Q. Was that in connection with the deputy chief or
   assistant chief position?
   A. No, this was prior. This was prior to—I think
   prior to even the sign-up sheet. It was just conver-
   sations we had, because I worked on his shift. This
   was, I don’t know exactly, but he was leaving. He
   just didn’t know when, but it was real soon. That’s
   the impression he gave me.
R.37 at 133-34. In short, while working on the same shift
as Chief Bell, Mr. Stockwell expressed his belief that he
did not know how much longer he could continue
actively fighting fires. Chief Bell concluded from these
statements that Mr. Stockwell was planning to retire
sometime in the near future.
   In his deposition, Mr. Stockwell does not deny having
made general comments to men on his shift concerning
his inability to continue in his present position. Instead,
Mr. Stockwell’s testimony is more focused on the subject
of retirement. The following question and answer series
is taken from Mr. Stockwell’s deposition:
   Q. Did you have any conversation with anyone in
   the Fire Department before December, 2005
   about any plans to retire?
   A. No.
22                                               No. 09-2355

     Q. So you never suggested to anyone before you
     applied for Deputy Chief or Assistant Chief that
     you might be retiring in a year or two?
     A. No. No. I never suggested—I never planned a
     date of retirement. When it came up, it came up.
     I finally decided that because of—and mostly
     because of not being able to obtain this position,
     one of those positions, is that I felt that I was
     jeopardizing the guys I was working with staying
     in the position I was in.
     Q. How were you jeopardizing?
     A. I am getting older and it is hard to fight fires.
     Everybody works as a team. You have to depend
     on one another. I didn’t want guys to have to
     worry about me and having to pick up the slack
     because of me. But I still had usefulness inside
     me that I could serve the department and wanted
     to get a position where I could still be there.

Mr. Stockwell states clearly that he never
told anyone that he would be retiring in “a year or two”
and that he had “never planned a date of retirement.”
These statements are much narrower than Chief Bell’s
recollections of Mr. Stockwell’s statements that the physi-
cal strain of the job was getting to him—a sentiment
echoed in Mr. Stockwell’s own deposition testimony.
Based on these statements, Chief Bell was left with the
impression that Mr. Stockwell would be retiring in the
near future. Although Chief Bell may have been
mistaken in the conclusions drawn from Mr. Stockwell’s
statements, “[a] reason honestly described but poorly
No. 09-2355                                                   23

founded is not a pretext, as that term is used in the law
of discrimination.” Pollard v. Rea Magnet Wire Co., Inc.,

, 559 (7th Cir. 1987). Nothing in Mr.
Stockwell’s statements explicitly contradicts Chief Bell’s
testimony concerning his conclusion about Mr. Stockwell’s
possible retirement. Therefore, those statements do not
create a genuine issue of fact for the jury.9



9
   Nor can Mr. Stockwell establish pretext by showing that he
was more qualified than those eventually promoted to the
Deputy and Assistant Chief positions. Mere comparison of
relative qualifications cannot establish an illicit motive unless
“no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff for
the job in question.” 

(quotation
marks and citation omitted). Mr. Stockwell cannot meet this
standard. Chief Bell testified that Buie had been serving as a de
facto deputy chief without the title. Tyler, though a rank below
Mr. Stockwell, was a “top tier” fireman who had served two
stints with the Department covering a total of about 12 years.
R.37 at 12, 165. Patterson had been with the Gary Fire Depart-
ment for 20 years, and had been a captain there. We recite
these facts not to reassess Chief Bell’s decisions, but simply to
establish that, based on the information before us, a reasonable
person could have chosen Buie, Tyler and Patterson over
Mr. Stockwell.
  Rich Stockwell testified that Tyler had been asked to resign
because he had alcohol in the ambulance and that Patterson
had “probably got a discipline record as long as my arm,” 

was chronically late, and would abandon his post. Buie
was “not a leader.” 

However, Mr. Stockwell did not
                                                  (continued...)
24                                              No. 09-2355

                        Conclusion
  The City of Harvey, through its Fire Chief, has set forth
legitimate, nondiscriminatory reasons for declining to
promote the plaintiffs to Deputy and/or Assistant Chief.
The plaintiffs have failed to produce sufficient evidence
to create a genuine issue of fact regarding whether the
reasons were pretextual. The district court’s grant of
summary judgment is therefore affirmed.
                                                A FFIRMED




9
  (...continued)
recall any conversations about Patterson, Tyler or Buie with
PSFA Bell or Chief Bell. He therefore has failed to show that
Chief Bell knew about these issues.



                           3-12-10