08-2085 Jones v. City of Springfield, Central District of Illinois, Mills, J., Manion, J.

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Employment
Racial discrimination; direct and indirect methods of proof; unofficial vacancy

A white police officer failed to make a prima facie case for his failure-to-promote claim under Title VII, using both direct and indirect methods of proof, when he argued that he was not promoted to an unofficial vacancy, but would have been if he were black.

"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 used. Thus, as the district court correctly held, Jones, 540 F. Supp. 2d at 1031, 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. Jones, 540 F. Supp. 2d at 1032-36. We have cautioned district courts against skipping over the prima facie case and moving directly to pretext. [Citations.] Here, the district court should have considered 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, 234 F.3d 1002, 1005-06 (7th Cir. 2000) (defining second prong of prima facie case in failure-to-promote claim as plaintiff '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. [Citations.] 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, 224 F.3d 681, 683 (7th Cir. 2000). In other words, Title VII does not mandate the creation of new positions. [Citations.] 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 Jacksonville, 341 F.3d 1261 (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."

Affirmed.

08-2085 Jones v. City of Springfield, Central District of Illinois, Mills, J., Manion, J.

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