On July 22, 2016, the 7th Circuit affirmed an order of summary judgment on claims alleged by a teacher that she was not promoted to various positions because of her gender, race and age, in violation of Title VII, Section 1981, and the ADEA. Riley v. Elkhart Community Schools, No. 15-3166 (7th Cir. 7/22/2016). The district court correctly held that the plaintiff failed to produce sufficient evidence for any of her claims to survive summary judgment. To proceed to trial on a failure to promote claim, a plaintiff must produce sufficient direct or circumstantial evidence that the employer’s promotion decisions were intentionally discriminatory or make an indirect case of employment discrimination under the burden-shifting method. To demonstrate a prima facie case of failure to promote, a plaintiff must produce evidence showing that: (1) she was a member of a protected class; (2) she was qualified for the position sought; (3) she was rejected for the position; and (4) the employer promoted someone outside of the protected class who was not better qualified for the position.

The plaintiff’s claims failed for several reasons. Section 1981 claims are limited to discrimination based on race. But another African-American was hired for one of the positions in question; consequently, the plaintiff could not establish that someone outside of her protected class was promoted to the position. She could not advance her claims as to other positions because she never applied for the positions. Her claims failed on another position because it would not have constituted a promotion. The remainder of her claims failed because she did not produce sufficient evidence that the employer’s explanations for its promotion decisions were pretext for discrimination, i.e., a phony reason for the employment actions.