Allen v. Chicago Transit Authority (163 F. Supp. 2d 953, 2001)

United States District Court for the Northern District of Illinois 2001-04-06

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

CONLON, District Judge.

Introduction

Before the court are four summary judgment motions filed by defendant Chicago Transit Authority (“CTA”) to dispose of all remaining claims asserted by four African-American CTA employees who claim they were victims of racial discrimination. To conserve judicial resources and avoid responding in kind to the parties’ excessive proliferation of paper, the court consolidates its rulings on all four motions.

Preliminarily, the court notes that the decisional process is unduly burdened by the parties’ disregard of Local Rule 56.1. The purported statements of uncontested facts, responses, additional facts, and replies are neither concise nor always factual. Instead, the purported facts are often clouded with impermissible conclusions, legal argument and citations to the record that do not support factual assertions. To the extent purported facts do not comply with Local Rule 56.1, they shall not be considered. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-23 (7th Cir.1994). Properly disputed facts are noted.

Legal Standard

The same legal standard applies to all four motions. Summary judgment is appropriate if the moving papers and affidavits show there is no genuine issue of material fact and the CTA is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); King v. National Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir.2000). Each plaintiff must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(3); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir.1999). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to each plaintiff. Bay v. Cassens Transp. Co., 212 F.3d 969, 972 (7th Cir.2000). A genuine issue of material fact exists if the evidence is sufficient to enable a reasonable jury to return a verdict for that plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.2000).

1. Rahpre Newberry

A. Background

The CTA moves for summary judgment against Newberry on his §§ 1981 and 1983 claims of discrimination in pay and promotions [Count II]. Newberry was hired by the CTA in February 1990 as a programmer analyst in the management information system department (“the computer department”), and initially was assigned to the mainframe area. Newberry had ten years of previous computer experience, including seven years as a computer operator and data processing field technician and three years as a computer programmer. He possessed an A.A. degree in data processing from Olive-Harvey College and a B.S. in computer science from Roosevelt University. Newberry completed 24 hours of undergraduate study to enhance his computer skills at DePaul University prior to starting at the CTA. In late June 1990, Newberry was promoted to senior programmer analyst at level eleven. The general manager of the computer department was Kenneth Edwards, an African-American. Edwards ultimately made all hiring and promotion decisions for the computer department. In 1992, Newberry moved from the mainframe area to the PC/LAN area of the computer department, headed by manager Paul Olenski. At all relevant times, Newberry’s immediate supervisor has been Stephen Cohn.

Through the employee assistance program, Newberry began a six-month leave of absence in mid-December 1997, with full pay, for emotional disability. While on leave, Newberry filed an internal handwritten-complaint with the CTA’s affirmative action unit, based on events that occurred prior to his leave of absence. Newberry complained of race discrimination and harassment by his supervisor Ol-enski due to his desk being moved “more than any other employee.” Pl.Ex. 27. Newberry did not request any remedy. Id. A typed-version of Newberry’s internal complaint exists and differs from the handwritten complaint. The typed version claims Olenski and Edwards adversely treated Newberry because of his race by requiring him to work out of his job description, senior programmer analyst, for four years; not assigning him the duties of a senior programmer analyst; denying him the same pay increases as other senior programmer analysts; and moving him to different seating assignments five times. Id. Both versions of Newberry’s complaint focus primarily on the effects of his 1992 transfer to the PC/LAN area under Olenski. Id.

Before his reinstatement in mid-June 1998, Newberry’s title changed to office systems programmer analyst. He still reported directly to Cohn. However, Olenski left the CTA in September 1998, and Adit-ya Jani became Newberry’s supervisor.

In late August 1998, the affirmative action unit issued a finding in response to Newberry’s internal complaint, stating “there is cause to support your allegation of race and adverse treatment.” Pl.Ex. 1. According to the report upon which the affirmative action unit’s finding is based,

Newberry has been adversely treated by being taken out of the position he was originally hired for, and was put into a position he was not as familiar with, yet being expected to perform at a level of experience dictated by management. Newberry’s career opportunity as a programmer is also hindered because of the lack of experience and training he could have had if he was left in his area of expertise.

Pl.Ex. 2 at 10. The report recommended that Newberry be returned to his position of senior programmer analyst and increased from level twelve to thirteen. Id. at 11.

Edwards does not recall receiving the affirmative action unit’s finding. Def. Ex. 12, Edwards dep. at 83-89. He believes the internal complaint was “thrown out, because [he] ... wasn’t asked to take any action by EEO or anything to redress or correct anything” that he can recall. Id.

Newberry does not sue the CTA based on either version of the internal affirmative action complaint. Newberry Resp. Br. at 1, n. 2. Rather, he claims he was denied unposted promotions awarded to two fellow employees, David Otto and Ashish Goyal, months after the internal complaint was filed and the affirmative action unit issued its finding. Id. at 1, n. 2, 14. Newberry’s job performance is not a material issue, but his qualifications for Otto and Goyal’s positions are at issue.

1. Otto’s Promotion

Without applying or interviewing, Otto became network support coordinator at level fifteen in November 1998, a two-level promotion from his position as lead communication system planning analyst since his hire in 1990. As network support coordinator, Otto continued to staff the help desk, where he had been working for some time. Despite the promotion, Otto’s duties remained essentially unchanged. In addition to Otto’s CTA experience, Edwards based his decision on Otto’s previous private employment experience in the communications field. Def. Ex. 12, Edwards dep. at 22-8, 69-70. Edwards did not base his decision on Otto’s educational background.

Newberry claims he also has communications experience. Pl.Ex. 3. With regard to Otto’s experience at the help desk, New-berry asserts that Edwards gave a different reason in his recommendation to promote Otto. Newberry contends Edwards’ recommendation lists a variety of computer projects with which Otto was purportedly involved, and that Otto’s involvement with these projects was minimal. Pl.Ex. 32; PLEx. 10, Newberry decl. at ¶ 8. As evidence that Otto was not qualified for the promotion, Newberry asserts Otto did not perform his job well. Newberry often heard complaints about the inaccessibility of the help desk and Otto’s frequent failure to answer the telephone. Pl.Ex. 10, New-berry decl. at ¶ 6. Newberry argues Otto performed so poorly that the CTA outsourced the help desk to an outside vendor, eliminating Otto’s position. Newber-ry Facts ¶ 38; Newberry Resp. Br. at 9, n. 11. Newberry concludes he was eminently qualified to perform the duties required for Otto’s position.

2. Goyal’s Promotion

After interviewing three or four people, Jani recommended Goyal to Edwards. Goyal was hired in March 1999 as senior office systems programmer analyst at level fourteen. This occurred a week before Newberry was promoted to level thirteen (within the period in which Newberry claims he was denied promotions). Def. Ex. 6,16: Goyal has no degree in computer science, unlike Newberry. Instead, Goyal has a bachelors degree in civil engineering and a masters degree in structural engineering. When interviewed by Jani, Goyal answered all technical questions correctly. Def. Ex. 24. Jani based his recommendation on Goyal’s certifications, experience and the technical interview. Def. Ex. 20, Jani dep. at 24. Goyal’s certification in Windows NT administration, and master’s degree in engineering contributed to Jani’s recommendation. Id. at 25. Newberry contends that Goyal did not have a Windows NT certification. Pl.Ex. 15. According to Edwards, Goyal was hired because he had “NT Novell network expertise.” Def. Ex. 12, Edwards dep. at 51-52. Goyal had five years of practical NT Novell networking experience in maintaining and developing programs. PLEx. 24; Def. Ex. 32, Rizzuto decl. at ¶¶ 12-13. Newberry contends that most of Goyal’s prior work experience was in the field of engineering, not computers, and that Goyal’s only computer-related work experience did not involve Groupwise, a program Goyal’s position serviced. PLEx. 15; Def. Ex. 25, Goyal dep. 10-16. Newberry claims he was familiar with Novell. Newberry Facts ¶ 97; PLEx. 10, Newberry decl. at ¶ 13. Newberry concludes Edwards’ and Jani’s reasons for hiring Goyal differ because Edwards said Goyal had experience with a certain program, and Jani did not mention this in his recommendation. Newberry Facts ¶ 93.

As evidence that Goyal was unqualified, Newberry asserts Goyal did not perform his job well and required training in areas in which he had limited experience. Id. ¶ 57. For example, Newberry claims Goyal had to refer to his notes in order to diagnose computer problems. Id. ¶ 57. Newberry observed more complaints about Groupwise after Goyal was hired than before. Id. ¶ 58.

Cohn told Newberry before Goyal was hired that Newberry would manage Groupwise; Newberry spent a day or so training with Jani, then Groupwise manager. Newberry Facts ¶ 54; Def. Ex. 2, Newberry dep. at 62, 193; PLEx. 10, New-berry decl. at ¶ 11. Finally, Newberry argues that he is qualified to perform the duties required for Goyal’s position, and to the extent he is not, with training he could be.

B. Analysis

Section 1981 promotion claims

Section 1981 prohibits racial discrimination with respect to making and enforcing contracts. 42 U.S.C. § 1981. In order to bring a § 1981 claim, there must be a contract. Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1034 (7th Cir.1998). The Seventh Circuit has not directly addressed this issue, but the weight of authority suggests employment at-will provides a sufficient contractual relationship to state a claim under § 1981. Other circuits have decided that at-will contracts support a § 1981 claim. See Perry v. Woodward, 199 F.3d 1126 (10th Cir.1999); Spriggs v. Diamond Auto Glass, 165 F.3d 1015 (4th Cir.1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048 (5th Cir.1998). These decisions are consistent with the nature of at-will employment. The courts in Spriggs and Fadeyi relied on a Seventh Circuit discussion of the nature of at-will employment. In McKnight v. General Motors Corp., the court observed:

Employment at will is not a state of nature but a continuing contractual relation. Wages, benefits, duties, working conditions, and all (but one) of the other terms are specified and a breach of any of them will give the employee a cause of action for breach of contract. All that is missing is a provision that gives the contract a fixed term or that entitles one or both parties to a specified amount of notice before the other party can cancel the contract without liability. A contract for employment at will may end abruptly but it is a real and continuing contract nonetheless....

908 F.2d 104, 109 (7th Cir.1990) (citations omitted). In recent cases this court has repeatedly concluded at-will employees may bring employment. discrimination claims under § 1981. See Riad v. 520 S. Michigan Ave. Assoc. Ltd., 78 F.Supp.2d 748 (N.D.Ill.1999); Jones v. Sabis Educ. Sys., 52 F.Supp.2d 868, 875-76 (N.D.Ill.1999); Daniels v. Nationwide Ins., No. 99 C 0757, 1999 WL 495649, at *1-2 (N.D. Ill. June 28,1999); Melton v. Five Four Corp., No. 99 C 1274, 1999 WL 436572, at *1-2 (N.D. Ill. June 22, 1999); Gandy v.. Gateway Foundation, No. 99 C 2286, 1999 WL 102777, at *17-18 (N.D.Ill. Feb. 22, 1999).

The CTA has failed to establish as a matter of law that Newberry cannot pursue a § 1981 claim as an at-will employee. Nevertheless, Newberry has not presented sufficient evidence to survive the CTA’s motion for summary judgment. To succeed on his claims that he was discrimina-torily denied promotions, Newberry must present either direct evidence that he was discriminated against or proceed under the indirect method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Direct Evidence

1. The Affirmative Action Unit’s Report and Finding of Cause

Newberry claims that the CTA admitted he was a victim of discrimination because it issued a finding in August 1998, that there was cause to support his allegations. Shirley Billingslea, a CTA equal employment officer, conducted the investigation, wrote a report, and recommended the affirmative action unit issue the finding of cause. Billingslea’s report was reviewed and approved by Ellis Kendricks, manager of the affirmative action unit, and his superior, Pamela Beavers, general manager of the equal employment department. Pl.Ex. 28, Billingslea decl. at ¶ 5; Pl.Ex. 29, Beavers Aff. at ¶¶ 16-19. Without Kendricks and Beavers’ approval, no finding of cause could issue. The report would simply be a recommendation or might be redrafted to articulate a different conclusion. There is no evidence the CTA adopted Billingslea’s report or finding of cause. Her supervisors’ approval does not alter this. It is undisputed the CTA did not implement the report’s recommendation to reinstate Newberry to his position as senior programmer analyst with an increase from level twelve to thirteen. The CTA’s failure to implement the report’s recommendation suggests an act of genuine disagreement, rather than a formal or informal adoption of Billingslea’s finding. See Tuohey v. Chicago Park Dist., 148 F.3d 735, 741-2 (7th Cir.1998). Thus, the CTA did not admit it discriminated against Newberry when the affirmative action unit issued its finding of cause for Newberry’s internal complaint. Id. at 739.

Further, Newberry’s internal complaint involves events prior to mid-December 1997. The statute of limitations for §§ 1981 and 1983 bar an action premised on these events. Hall v. Burlington N. Santa Fe, 977 F.Supp. 1344, 1345 (N.D.Ill.1997) (§ 1981’s statute of limitations is two years and continuing violation doctrine unavailable if plaintiff knows after each act it was discriminatory); Treece v. Naperville, 903 F.Supp. 1251, 1257 (N.D.Ill.1995) (same). Moreover, Newberry’s internal complaint does not involve Otto or Goyal’s promotions. Nor could they, because Otto was promoted in November 1998 and Goyal in March 1999. Thus, the report (issued in August 1998) is not direct evidence that the CTA subsequently discriminated against Newberry.

The report made findings for the period late April 1995 to late August 1998. Pl.Ex. 2 at 6; PLEx. 1. Newberry contends that certain findings are particularly relevant. The report found that the computer department promoted five females and nine males. Pl.Ex. 2 at 6. The race and sex are as follows: 1 Hispanic/female; 1 white/female; 3 black females; 1 black male; 1 Asian male; 1 East Indian male and 6 white males. Id. The report noted the computer department employed 22 black males, and that there are no blacks in the computer department with a manager’s title. The report inexplicably excluded Edwards, the general manager, from both findings. Id. There were 38 white males in the computer department, five with manager’s titles. Id. The source of these findings is undisclosed. The report does not address the qualifications of managers compared with candidates who did not receive promotions to that position. See Varnasco v. National-Louis Univ., 137 F.3d 962, 967 (7th Cir.1998) (raw numbers regarding ages of candidates granted and denied promotions without analysis of relative qualifications do not support a claim of age discrimination). Nor does the report address the number of black candidates and whether the positions were posted. If the positions were posted, candidates were required to apply for the position as an element of a prima facie case for a failure to promote claim. Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir.1995). It is uncontested that Newberry never applied for a posted position. Nevertheless, based on Billingslea’s raw numbers, she opines:

The lack of black males being promoted [between late April 1995 to August 1998] gives some credence to Newberry’s complaint of race discrimination. Because white males are in a position to recommend promotions or transfers, it is very likely that white males will continue to be in management positions and minority males will continue to be underutilized.

Pl.Ex. 2 at 9, 10. Billingslea’s opinion ignores that Edwards, the general manager of the computer department, is African-American. It is undisputed that Edwards made all hiring and promotion decisions. Edwards testified that because he is African-American, he has “always been sensitive to issues of diversity” in his department and tries to “identify opportunities to promote qualified female and minority candidates into supervisory-level positions”. Def. Ex. 22, Edwards aff. at ¶ 4. According to Billingslea’s own reasoning, because Edwards is an African-American and he was in a position to promote or transfer, she should have reached the opposite conclusion. The report and its findings do not constitute competent or admissible evidence of a pattern of discrimination in the computer department. Therefore, the report is insufficient to create a genuine issue of material fact that Newberry’s failure to be promoted to the positions Otto and Goyal presently occupy is the result of discrimination.

2. Deborah Grant’s Testimony

Newberry proffers the testimony of Deborah Grant as direct evidence that the CTA discriminated against him. Grant, an African-American in the computer department, has an extensive education and experience in computer science. Pl.Ex. 30, Grant dep. at 14-16, 25. Grant testified at length about problems she experienced with Olenski, her supervisor until 1992. Id. at 18-48. Olenski did not approve training Grant felt she needed and Grant did not feel her skills were fully utilized. Id. at 18-26. However, Edwards intervened and approved Grant’s training requests. Id. at 20-22. Grant does not identify race as the motivation for Olen-ski’s conduct. Id. at 18-48. Grant’s experiences with Olenski do not support New-berry’s claims.

Over the years, Grant had conversations with computer department colleagues about the practice of promoting without job posting and the resulting lack of opportunity for older technical staff members to bid on mid-management positions. Id. at 54-55. She offers no times, dates places, people, or specific promotions for these conversations. Id. These hearsay statements do not constitute competent evidence that a pattern of discrimination existed in the computer department. Nor did Grant offer testimony about the promotions at issue.

Finally, Newberry offers no legal support for his argument that Grant’s testimony constitutes direct evidence of discrimination against him.

3. Harassment

Newberry claims he was harassed by being required to change seats against his will and he was given undesirable seating assignments. Newberry Facts ¶ 26. However, he does not provide any specifics of these moves except that they occurred after he was transferred to Olenski. New-berry provides one example that he claims occurred “within the past month,” but that was after the last date of his deposition (May 11, 2000), and he stipulated that he will not place at issue any allegedly discriminatory acts after that date. Pl.Ex. 10, Newberry decl. at ¶ 19; Def. Ex. 15. Finally, Newberry does not explain how changing seat assignments was related to his failure to promote claims regarding Otto and Goyal or how changing seat assignments is based on his race.

Newberry claims that he “continues to be given little or no work to do, or is given work that is beneath his qualifications and job description, or is given work for which he needs additional training, which he is denied.” Newberry Resp. Br. at 7; New-berry Facts ¶ 26; Pl.Ex. 10, Newberry decl. at ¶ 22. However, in the declaration that Newberry cites as support, he does not attest he was given little or no work to do. Pl.Ex. 10, Newberry decl. at ¶¶ 17, 22-23. Newberry is not entitled to complain unless these assignments were a mask for discrimination. Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1571 (7th Cir.1989). The CTA explains that because the computer field changes rapidly, it was common for computer department employees’ duties to change and job descriptions to become outdated. Def. Ex. 8, Cohn dep. at 30-31; Def. Ex. 9, Olenski dep. at 107-09. Newberry does not explain how the work he was given was based on race, other than his unsupported conclusion that “[n]on-African-Americans do not suffer these indignities.” Newberry Resp. Br. at 7; Newberry Facts ¶ 26. This is not direct evidence of discrimination. Finally, Newberry’s claim is premised on the failure to promote him into the positions Otto and Goyal now occupy. He abandoned any claims based on “continu[ing]” alleged discriminatory conduct. Def. Ex. 15.

Newberry claims that white CTA supervisors acknowledge there may be some reaction to his appearance; he has dread-locked hair and wears Afro-centric clothes. Newberry suggests, but does not overtly claim, that this possible reaction by unidentified supervisors was race-based. Newberry does not contend his appearance has had a negative effect on his career, or that it was considered by the CTA when deciding to promote Otto and Goyal instead of himself. Indeed, Cohn testified that within the computer department, dreadlocks have no impact on the perception of Newberry. Def. Ex. 8, Cohn dep. at 57. Cohn did not testify about Newber-ry’s clothes. Id. Olenski testified that Newberry’s appearance did not hinder his ability to advance in the computer department. Def. Ex. 9, Olenski dep. at 63-4. Newberry’s assertions about the effect of his appearance are speculative and do not constitute direct evidence of discrimination.

4. The Statistical Expert

Newberry proffers as direct evidence of discrimination declaration by a database/statistical consultant, Whitman T. Soule. Newberry Resp. Br. at 7; PhEx. 6. Soule’s declaration is not considered for the following reasons: Newberry failed to comply with the expert disclosure requirements of Fed.R.Civ.P. 26(a)(2) and this court’s scheduling order; Newberry never sought leave to identify an expert after the disclosure deadline, and Newberry orally and in writing informed the CTA that he would not present any expert opinions or materials in this case. Def. Mot. to Strike at 2, 4, Ex. 1-2. As a result, Newberry’s statistics cannot be considered as direct evidence of discrimination.

E. The “Mosaic of Discrimination”

Newberry argues that collectively the direct evidence creates a convincing “mosaic of discrimination” warranting denial of summary judgment. Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.1994). However, each proffered item of direct evidence is insufficient to establish a genuine issue of material fact. Taken together, the proffered evidence remains insufficient to establish that Newberry was a victim of discrimination.

The Indirect Method

1. Prima Facie Case

In order to establish a prima facie case of race discrimination, Newberry must show: he belongs to a racial minority; he applied and was qualified for a job for which the employer was seeking applicants; that despite his qualifications, he was rejected; and the position was given to someone of a different race who had similar or lesser qualifications. Perdomo, 67 F.3d at 144. To satisfy the application requirement where jobs are not posted, Newberry must show he would have applied if the jobs were posted. Jaffe v. Johnson, No. 86 C 7818, 1988 WL 37694, at *6 (N.D.Ill. Apr. 19, 1988); Rodgers v. Peninsular Steel Co., 542 F.Supp. 1215, 1220 (N.D.Ohio 1982), cited in Box v. A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir.1985).

Once a prima facie case is established, the burden of production shifts to the CTA to articulate a legitimate, nondiscriminatory reason for its actions. See Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994). If a nondiscriminatory reason is articulated, the CTA satisfies its burden and Newberry must establish that the CTA’s reason was pretextual. Id.; Perdomo, 67 F.3d at 144. In order to survive the CTA’s summary judgment motion, Newberry must show that a reasonable fact finder could infer that the CTA did not honestly believe the reason for the employment decision. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir.1994).

Newberry satisfies the first element of the prima facie case — he is African-American. To satisfy the second element, New-berry must show that had Otto and Goyal’s positions been posted, he would have applied. He has failed to do so. It is undisputed that he never applied for a posted position. He explains that but for being taken out of his career path in 1992 (when he was switched to the PC/LAN area), he would be qualified for many positions and could have applied for posted positions. Def. Ex. 2, Newberry dep. at 185-88, 195.

2. Qualifications of Otto and New-berry

The parties have not submitted a job description for Otto’s position. However, Otto’s supervisors testified that his job duties consist of coordinating varied responsibilities: logging all help desk inquiries; performing troubleshooting by telephone; determining when repairs are a vendor’s responsibility; interacting with vendors; and assigning tasks to technicians in the field. Def. Ex. 32, Rizzuto decl. at ¶ 8. This involves both the mainframe and the PC/LAN areas of the computer department. Def. Ex. 8, Cohn dep. at 53. Otto “perform[s] a kind of triage regarding computer-related problems of all kinds.” Def. Ex. 32, Rizzuto decl. at ¶ 8. This job requires “[supervisory capability ... an understanding of systems from a network standpoint, from an application standpoint .... an understanding of network configurations.” Def. Ex. 12, Edwards dep. at 69-70.

Edwards based his decision on Otto’s two and a half years of experience working at the help desk and Otto’s previous experience in the communications field. Def. Ex. 12, Edwards dep. at 22-23, 69-70. Newberry claims that Edwards’ recommendation to promote Otto differs from Edwards’ testimony, listing a variety of computer projects that Otto was involved with. PLEx. 32. Edwards’ recommendation states the help desk supported a wide variety of computer technology, and that Otto supervised the group, with heavy management involvement in implementing technologies and increasing his management skills. Id. This does not contradict Edwards’ testimony. Nor does Newberry support his assertion that Otto’s involvement with these projects was minimal. Newberry Facts ¶ 101; Pl.Ex. 10, Newber-ry decl. at ¶ 8.

Edwards testified Newberry was not considered for the position of network support coordinator because he was unqualified. Def. Ex. 12, Edwards dep. at 69. According to Edwards, Newberry “had not demonstrated having a rounded, well-founded experience level or skill sets in those areas [network systems and configurations] ... other than what he had learned since he had moved over into the PC area.” Def. Ex. 12, Edwards dep. at 69-70.

Newberry contends that the “basic help desk functions” involve fixing computer problems on site, determining when a computer needs to be sent to a vendor for repairs, and to help resolve virus and Internet problems. Pl.Ex. 10, Newberry decl. at ¶ 5. He bases his contention on Otto’s testimony about his job. Def. Ex. 23, Otto dep. at 13. However, an employee does not write his own job description. Palucki v. Sears, Roebuck & Company, 879 F.2d 1568, 1571 (7th Cir.1989); Ester v. Derwinski, No. 90 C 2853, 1992 WL 71767, at *5 (N.D.Ill. Apr. 1, 1992). Newberry contends he performed all these functions, and thus was qualified for the position. Pl.Ex. 10, Newberry decl. at ¶ 5. Newberry asserts that a substantial part of the network coordinator position involves simply sending computer department staff, including himself, out to solve CTA computer problems. Newberry Facts ¶ 34. Newberry cites as support his own testimony (which does not support his contention) and Otto’s testimony. This is irrelevant. Palucki, 879 F.2d at 1571; Ester, No. 90 C 2853, 1992 WL 71767, at *5. Finally, Newberry claims he has communications experience. However, he cites a 1990 staffing memo and hire notice that does not even remotely support his assertion. Pl.Ex. 3. Because Newberry offers no evidence that he possesses the job qualifications, he cannot establish a prima fa-cie case of discrimination with regard to the CTA’s failure to promote him to Otto’s present position.

3. Qualifications of Goyal and New-berry

The parties have not submitted a job description for Goyal’s position. Goyal’s performance review indicates his job duties include Groupwise, Novell Netware support maintenance; Groupwise 4.1a connectivity with Groupwise 5.5; Groupwise CTA link with City of Chicago; CTA routers; NT servers for Solomon application and property accounting; and RS6000, Unix/AIX fueling system replacement for series I to meet Y2K compliance. Pl.Ex. 19. These duties include the CTA’s Groupwise Internet service. Def. Ex. 32, Rizzuto decl. at ¶ 14. Newberry claims Goyal was hired only to manage and administer Groupwise, the CTA’s e-mail program, without identifying any basis for his purported personal knowledge. Pl.Ex. 9, Newberry dep. at 193, Pl.Ex. 10, Newberry decl. at ¶ 9. To the extent Goyal has undertaken some duties with which New-berry does not have experience, Newberry claims that with appropriate training and support, he would have been able to master those duties too. Newberry Facts ¶ 65; Pl.Ex. 10, Newberry decl. at ¶ 13. Newberry’s self-assessment carries no weight. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1460 (7th Cir.1994) (and cases collected therein).

Jani conducted a technical interview with Goyal, who answered all questions correctly. Def. Ex. 24. Jani based his recommendation on Goyal’s certifications, experience and the technical interview. Def. Ex. 20, Jani dep. at 24. Goyal’s certification in Windows NT administration, and master’s degree in engineering contributed to his recommendation. Id. at 25. Newberry contends that Goyal did not have a Windows NT certification because Goyal’s resume has Windows NT listed as one of the courses Goyal took. Pl.Ex. 15. This has no bearing on whether Goyal had the certification. Further, the only difference between Windows NT administration certification and completion of a course is passing an examination administered by a central authority. Def. Ex. 20, Jani dep. at 25-6.

Edwards testified Goyal was hired because he had “NT Novell network expertise,” which he described as knowing “how to put a network together, ... how to support it, ... how to establish e-mail parameters, ... how to go in and manage servers, ... how to configure servers, application servers, network servers,” which is a “combination of both” “hardware skill and software skills.” Def. Ex. 12, Edwards dep. at 51-52. Goyal had five years of practical NT Novell networking experience in maintaining and developing programs. Pl.Ex. 24; Def. Ex. 32, Rizzuto decl. at ¶¶ 12-13. Newberry claims he was also familiar with Novell, but does not explain the level of his familiarity, and certainly does not claim to have five years of practical NT Novell networking experience in maintaining and developing programs. Newberry Facts ¶ 97; Pl.Ex. 10, Newberry decl. at ¶ 13. Thus, Newberry did not possess a critical qualification for the position.

Newberry contends that most of Goyal’s prior work experience was in the engineering field, not with computers, and Goyal’s only computer-related work experience did not involve Groupwise. Pl.Ex. 15; Def. Ex. 25, Goyal dep. 10-16. However, No-vell is a Groupwise system and Goyal’s course work and previous job dealt with Novell. Pl.Ex. 15; Def. Ex. 25, Goyal dep. at 12-13.

Edwards testified that Newberry was not considered for the position because Newberry was unqualified and lacked a background in NT Novell expertise. Def. Ex. 12, Edwards dep. at 55. Newberry contends that he and Goyal had similar training in Windows NT — a short course taken in late 1998 or early 1999. Newber-ry Facts ¶ 70; Pl.Ex. 17. Goyal attended two weeks of training for half days, while Newberry had four full days of training. Pl.Ex. 10, Newberry decl. at ¶ 13, 17; Def. Ex. 25, Goyal dep. at 48-49. Even if Goyal and Newberry’s Windows NT training were similar, it does not compare with five years of practical experience with NT No-vell. Pl.Ex. 15,24.

Newberry argues Edwards’ and Jani’s reasons for hiring Goyal differ because Edwards said Goyal had experience with a certain program, and Jani did not mention this. Newberry Facts ¶ 93. However, Edwards testified Goyal was hired because he had “NT Novell network expertise.” Def. Ex. 12, Edwards dep. at 51-52. Jani’s written recommendation is not inconsistent with this explanation. Pl.Ex. 24. In fact, Jani recommended Goyal in large part because of his NT network experience. Id.

Newberry contends he worked with Groupwise for years, troubleshooting and resolving users’ problems with the program. Newberry Facts ¶ 53. And since Groupwise was tailored to meet the CTA’s needs, Newberry, who had been at the CTA for nine years, had more experience with the particular program and its peculiarities than did the new hire Goyal. PI. Ex. 10, Newberry decl. at ¶ 10. Newberry contends he could diagnose problems with Groupwise and prescribe treatment based on his wealth of CTA experience. New-berry Facts ¶ 60. He knew the Groupwise users and understood the types of problems they encountered. Id. This is a self-serving, conclusory assessment of his own abilities. In addition, these opinions do not change the fact that the CTA selected Goyal based on his five years of practical experience with NT networking. Newber-ry did not possess comparable experience. Nor did Newberry’s experience encompass all of Goyal’s job duties.

Newberry further contends that Cohn told him before Goyal was hired that New-berry would be taking over Groupwise management. Newberry Facts ¶ 54; PI. Ex. 10, Newberry deck at ¶ 11. However, Newberry’s own deposition contradicts this declaration. Newberry testified that Cohn spoke to him about an unspecified promotion or salary increase, and stated that Newberry was also “going to be working in the group-wise e-mail system.” Def. Ex. 2, Newberry dep. at 60-63. EEOC v. UPS, 94 F.3d 314, 316, n. 2 (7th Cir.1996) (party cannot create a genuine issue of material fact by submitting an affidavit that contradicts prior deposition testimony); Adelman-Tremblay v. Jewel Cos., Inc., 859 F.2d 517, 520-21 (7th Cir.1988) (same).

Newberry contends he spent a day or so training with Jani, then Groupwise manager. Def. Ex. 2, Newberry dep. at 193; Pl.Ex. 10, Newberry decl. at ¶ 11. Jani trained Newberry for a day on the CTA’s e-mail system in November 1998. Based on this experience, Jani considered New-berry’s performance to just meet expectations. Def. Ex. 20, Jani dep. at 40-41. There is no evidence that Jani trained Newberry for a day in anticipation of New-berry managing Groupwise. In fact, one of Newberry’s performance goals for 1999, to acquire knowledge of Groupwise, suggests otherwise. PkEx. 18.

Part of Goyal’s job was to ensure Y2K compliance on the CTA’s PCs. PkEx. 19. Newberry claims Y2K compliance for PCs was one of his special responsibilities; that he was responsible for testing PCs to determine if they were Y2K compatible and upgrading them as needed Newberry Facts ¶¶ 62-63. This was only one of Goyal’s job duties. Based on performance evaluations, Newberry and Goyal performed the task equally well. PkEx. 18; PkEx. 19.

Newberry contends Goyal could not solve or even diagnose problems. Newber-ry Facts ¶ 57. Instead, Goyal had to refer to his notes. PkEx. 10, Newberry deck at ¶ 14. Newberry is not competent to testify about Goyal’s state of mind. Moreover, Goyal’s performance evaluation strongly suggests Goyal is competent. PkEx. 19. Goyal received a 4.7 average on a 5.0 scale. Id. For problem-solving (defined in the performance review as accurately diagnoses problems and develops appropriate solutions), Goyal received the highest mark. Id.

In sum, Newberry’s endless negative opinions about Goyal’s actual job performance are neither supported by the record nor do they establish a prima facie case that Newberry was qualified for Goyal’s position.

II. Annette M. Allen and Shelley S. Burnette

A. Background

The CTA moves for summary judgment on Alen and Burnett’s claims of discrimination in promotions under Title VII [Count I]. Alen was hired by the employment and placement section in late March 1986 as a secretary. The head of the personnel services department, Geraldine Tapling, interviewed Alen and recommended her. Alen was a direct hire, and her position was not posted. Alen’s pre-CTA experience was clerical, and did not relate to personnel or human resources. In May 1987, Tapling promoted Allen to another clerical position. In November 1989, Tapling promoted Allen to an un-posted position, occupational adjustment representative. This position combined clerical duties with interviewing and placing employees returning from disability. Tapling created this position especially for Allen to serve as a bridge from clerical into professional personnel work, and to give Allen experience so she could advance in the personnel department. Less than a year later, in August 1990, Tapling promoted Allen to personnel specialist, a position that involves interviewing candidates for employment. In March 1995, Tapling promoted Allen again to her present un-posted position, senior personnel specialist. Allen obtained a bachelors degree from Governors State University in business administration in 1997. Her course of study did not include any personnel or human resources courses.

Burnette was hired by the employment and placement section in June 1987 as a senior personnel specialist. Burnette’s position was not posted. Burnette finished high school in 1969, and had been in and out of the workforce starting in 1974, with various clerical jobs interspersed with periods of school or unemployment. In 1983, Burnette received a bachelors degree in personnel management from the University of Maryland. From 1984 to 1986, she worked as a personnel specialist. When Burnette applied to the CTA, she had been unemployed for about eight months.

1. The 1995 Promotion

In 1994, Tapling expected two employment and placement managers, Ruth Brown and Bill Fudala, to retire in a few years, and began to consider replacements. Because she expected they would retire about the same time, she thought about staffing the positions with people who would work together as a team. Tapling wanted to promote managers from within the employment and placement section and she anticipated that Pedro Lebrón and Allen would become managers. Pl.Ex. H, Tapling dep. at 236. Lebrón is Hispanic. Allen was “definitely [Tapling’s] second candidate. There were some concerns at that time that [Tapling] hoped would ... prove to not be problematic.” Id. at 237. In order to help organize her thoughts about filling the positions, Tapling jotted them down on paper. Her notes include a list of the strengths and weaknesses of each personnel specialist, including Allen, Brunette and Lebrón.

Prior to Brown’s retirement — as an experiment handled by both Brown and Fu-dala — Allen, Burnette and Lebrón filled in as managers. Id. at 70-72. Allen and Burnette handled their assignments well. Id. However, Tapling did not consider temporary manager positions as indicative because “it’s a false scenario. The person is sitting in the job — or in the desk moving the paper, but they’re not the manager. [Brown] is still there to help them.” Id. at 71. Brown retired late in 1994. Among those interviewed for the position were Allen, Burnette and Lebrón. Le-brón resigned in late January 1995, after interviewing for Brown’s position. In February 1995, Tapling offered Allen the manager position. Def. Ex. 6, Allen dep. at 212-13. Allen accepted. Id. Despite this, in early March 1995, Tapling announced that Lebrón received the manager position. When Allen asked Tapling for an explanation, Tapling explained a personnel specialist could not leapfrog over a senior personnel specialist to a manager’s position. Id. at 214-15. Ta-pling denies this conversation. Pl.Ex. H, Tapling dep. at 267. Although Allen was upset by the decision to promote Lebrón, she accepted Tapling’s reason that a personnel specialist could not leapfrog to manager. Def. Ex. 6, Allen dep. at 213-16. Tapling gave Allen no other reason she was not promoted in 1995; Allen had no reason at that time to disbelieve Ta-pling’s explanation for not receiving the 1995 promotion. Pl.Ex. I, Allen decl. at ¶¶ 28-29. Allen never perceived racism or other discrimination directed toward her in all her nine years at the CTA and had no reason to believe that the 1995 promotion decision was racially motivated. Id.

Burnette disagreed with the decision to promote Lebrón in 1995, but did not believe she was the victim of discrimination. Def. Ex. 7, Burnette dep. at 125-30; PI. Ex. J, Burnette decl. at ¶ 17. Burnette had no reason to attribute the 1995 promotion decision to racism; she never perceived racism directed toward her in her eight years at the CTA. Id. at ¶ 17.

2. The 1997 Promotion

Fudala announced in 1997 that he would retire. According to the CTA’s affirmative action plan, it is the policy to promote from within and most vacancies are posted. PI. Ex. F at 57. Thomas Czech, Tapling’s supervisor, decided not to post Fudala’s position because he believed the budget department would eliminate the position if it became aware of the vacancy. Pl.Ex. K, Czech dep. at 81; Def. Ex. 31, 32, Illinois Department of Human Rights (“IDHR”) report at 2. To avoid this, Czech wanted to act quickly to find a suitable candidate within the personnel services department. Tapling agreed with Czech’s reasons for not posting the position. Pl.Ex. H, Ta-pling dep. at 172-73; Def. Ex. 31, 32 at 2. Allen and Burnette heard the position was to be eliminated by the budget. Def. Ex. 6, Allen dep. at 308-09; Def. Ex. 7, Bur-nette dep. at 165-66. Allen and Burnette claim that not posting the 1997 position was a deviation from the CTA’s policy of posting positions. Def. Ex. 6, Allen dep. at 335; Def. Ex. 7, Burnette dep. at 79-80. However, Allen was aware that exempt positions were not always posted and she had in fact received unposted exempt promotions. Def. Ex. 6, Allen dep. 334-35. Burnette was also aware that not all exempt positions were posted and her job was not posted. Def. Ex. 7, Burnette dep. at 79-81. Allen and Burnette contend that they had no opportunity to apply for the 1997 position because it was not posted. Def. Ex. 1, Second Am. Comp, at ¶ 22, 44. But it is undisputed that they were both considered for the 1997 promotion. Def. Ex. 2, Tapling decl. at ¶¶ 77-87. Thus, it is immaterial that the position was not posted.

According to Tapling, Czech told her in late summer about Fudala’s expected vacancy and that she had to move quickly. Def. Ex. 2, Tapling decl. at ¶ 73; Pl.Ex. H, Tapling dep. at 188-89. Czech told Ta-pling not to make a decision without interviewing the candidates and reporting back to him. Pl.Ex. K, Czech dep. at 76-81. Czech testified that maintaining institutional knowledge and the interview were important criteria in replacing Fudala. Id. at 78-80. In Czech’s view, whether an employee is actually qualified for the job depends on the interview and how well the employee presents himself or herself. Id. at 78. Czech would not have made the 1997 promotion decision without first obtaining interview results. Id. at 78-80.

After Czech told Tapling to consider candidates for Fudala’s vacancy, Czech had to remind Tapling to complete the task. Id. at 86-87. Tapling evaluated candidates from the personnel department only, and assumed all personal specialists were interested. Def. Ex. 2, Tapling decl. at ¶ 74. Tapling did not inform any of the personnel specialists that she was considering them for Fudala’s position, nor did she involve Lebrón in the process. After her initial meeting with Czech, Tapling compiled handwritten notes comparing the strengths and weaknesses of each candidate and met with Czech to review her considerations. PLEx. H, Tapling dep. at 194; Def. Ex. 2, Tapling decl. at ¶ 98. Tapling identified Allen’s strengths as good technical skills; good interactions with departments; professionalism; conscientiousness about her assignments, and good office experience as a personnel specialist. For Burnette, Tapling noted only two positives: she was organized, and she took her work seriously inasmuch as she completed her projects and did appropriate follow-up.

Tapling evaluated Patrick Reilly, who was the newest personnel specialist. Reilly is white. In 1996 through early 1997, the personnel services department was responsible for changing the photo identification system for nearly 13,000 CTA employees. The CTA purchased a new computer system, and the department had to issue every employee a photo identification. Reilly learned the system and designed special identification cards. Tapling noted that Reilly had taken a professional human resources course through the Society for Human Resources Management and received his certification. Reilly acted on his own initiative, after work. Reilly also had a master’s degree. Tapling noted that Reilly conducted himself as a professional by dressing appropriately for the job and articulating his thoughts in a professional manner. After Reilly was promoted to the position of personnel specialist, he voluntarily spent extra time training the new occupational adjustment specialist. Only one negative was noted: he was sometimes too laid back and would play jokes.

Tapling made a similar list of positives and negatives about Jeffery Gadomski and Earline Marshall, the other two personnel specialists. Gadomski is white. Marshall is African-American.

Tapling and Czech discussed the candidates Tapling was to interview for the manager position, including Allen, Bur-nette and Reilly. Pl.Ex. K, Czech dep. at 89. Tapling told Czech she had conducted interviews of all candidates for the position and had prepared a list of various factors she was considering in the form of a matrix. Id. at 88-89. According to Czech, Tapling showed him her handwritten notes about the candidates; Czech told Tapling he wanted to see the matrix. Id. at 120-21. Tapling then synthesized factors she considered. Def. Ex. 2, Tapling decl. at ¶ 98. Tapling reviewed the personnel jackets of each personnel specialist to refresh her memory regarding education and experience. Tapling’s matrix included the following columns: education, entry service date, job history, job exposures and computer skills. She made notes in each column for each candidate, and then made her recommendation to Czech. Tapling chose Reilly as the best candidate. Id. at ¶¶ 99-100. Tapling reviewed the matrix with Czech, and Czech agreed with her recommendation of Reilly. PLEx. H, Ta-pling dep. at 272-73. According to Czech, Tapling told him Reilly had done very well in his interview and that Allen did poorly in hers. PLEx. K, Czech dep. at 90, 94. Czech could not remember anything Ta-pling told him about Burnette. Id. at 102-OS. Reilly became the manager in mid-September 1997. Reilly was promoted over Gadomski, who is also white and had significantly more experience in the department.

In fact, Tapling did not conduct any interviews for the 1997 promotion. Def. Ex. 2, Tapling decl. at ¶76. Tapling claims she did not have time. Id. Tapling testified that she is positive that Czech did not tell her to interview the candidates and that Czech did not put a great deal of weight on interviews in filling the 1997 position. PLEx. H, Tapling dep. at 190-91. Tapling interviewed most of the personnel specialists less than two years earlier for the 1995 Brown vacancy. Def. Ex. 2, Ta-pling decl. at ¶ 76. Reilly was not a personnel specialist in 1995, and was not interviewed. Def. Ex. 22, Reilly decl. at ¶ 5. According to Tapling, interviews are unnecessary when candidates’ performances are observed daily on the job. Pl.Ex. H, Tapling. dep. at 76.

After Tapling announced Reilly’s promotion in mid-September 1997, Allen and Burnette immediately believed they had been discriminated against and went to the affirmative action unit to file an internal complaint. The internal complaint was referred to Billingslea, a CTA equal employment officer. Among those interviewed regarding Allen and Burnette’s internal complaint were Allen, Burnette, Czech and Tapling. After completing her investigation, Billingslea submitted a written report to Kendricks, the affirmative action manager, who agreed with the report and said he would pass it on to Beavers, general manager of the equal employment department. Pl.Ex. M, Billingslea decl. at ¶ 8. Beavers did not receive the report. Def. Ex. 38, Beavers decl. at ¶¶ 7-8. Allen and Burnette contend the report concludes they were victims of discrimination. PI. Resp. Br. at 12. However, the equal employment department never reached an official conclusion regarding their internal complaint. Def. Ex. 38, Beavers decl. at ¶ 8.

In early October, Allen and Burnette retained counsel. While the affirmative action unit investigated their internal complaint, their counsel filed charges with the Equal Employment Opportunity Commission (“EEOC”) and the Illinois Department of Human Rights (“IDHR”) in late October 1997. The IDHR investigated and in August 1998 dismissed the charges for lack of substantial evidence. The EEOC concurred and issued right-to-sue letters in May 1999. Allen, Burnette and the CTA entered a series of tolling agreements, extending the limitations period for Title VII to November 23, 1999. Allen and Burnette filed this case on that date, claiming they were discriminated against in 1995 and 1997 for the manager positions in the employment and placement section.

B. Analysis

The 1995 Promotion Claim Is Time-Barred

Under Title VTI, Allen and Burnette’s right to sue in this court depends first on filing a timely charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1), (f)(1). They were required to file their charge within 300 days of the alleged discrimination. Filipovic v. K & R Exp. Sys., Inc., 176 F.3d 390, 396 (7th Cir.1999). The 300-day period begins on the date Allen and Burnette knew or should have known with the exercise of reasonable diligence of the allegedly discriminatory actions. Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Jones v. Merchants Nat’l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir.1994); Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 281-82 (7th Cir.1993). The CTA did not waive the 300-day limitation. That date would fall in December 1996 because Allen and Burnette did not file their EEOC and IDHR charges until October 1997.

Allen and Burnette argue that their 1995 promotion claim is not time-barred based on the continuing violation theory and equitable tolling. To succeed on the continuing violation theory, Allen and Burnette must demonstrate that the CTA’s promotion decisions were closely related. Selan v. Kiley, 969 F.2d 560, 565 (7th Cir.1992). To establish the CTA’s promotion decisions in 1995 and 1997 were closely related, the “subject matter” alleged to be discriminatory must be similar and involve the same type of discrimination. Id. Allen and Burnette claim the 1995 and 1997 promotion decisions constitute race discrimination under similar circumstances. The frequency of the CTA’s alleged discriminatory conduct is also a factor; the more frequent the conduct, the more likely it is continuous. Id. The conduct Allen and Burnette consider discriminatory occurred twice: in 1995 when the promotion went to Lebrón, and in 1997 when the promotion went to Reilly. Finally, the “degree of permanence” of the challenged promotion decisions must be considered. Id. Promotion decisions are discrete and permanent actions that should have caused Allen and Burnette to sue separately, rather than to await repetition of the decision nearly two years later. Jones, 42 F.3d at 1058; Nair v. Bank of Am. Ill., 991 F.Supp. 940, 957-58 (N.D.Ill.1997); Lacy v. Ameritech Mobile Communications, 965 F.Supp. 1056, 1065-66 (N.D.Ill.1997).

A continuing violation did not occur if Allen and Burnette knew or with the exercise of reasonable diligence should have known after each promotion that it was discriminatory. Jones, 42 F.3d at 1058; Moskowitz, 5 F.3d at 282. It is undisputed that Allen and Burnette knew they did not receive the March 1995 promotion soon after it was announced. Allen argues (and the CTA admits) that she could not have known that the 1995 promotion was discriminatory because she never perceived racism or other discrimination directed toward her in her nine years at the CTA and had no reason to believe that the decision was racially motivated. Pl.Ex. I, Allen decl. at ¶¶ 28-29; CTA Facts at ¶ 19. Burnette also argues (and the CTA admits) that she could not have know that the 1995 promotion was discriminatory because, although she disagreed with it, she did not believe she was the victim of discrimination. Burnette had no reason to attribute the decision to racism having never perceived racism directed toward her in her eight years at the CTA. CTA Facts at ¶ 20. Despite Allen and Bur-nette’s contemporaneous beliefs they were not victims of discrimination because of the 1995 promotion decision, each had a basis that with reasonable diligence should have led them to suspect the decision was discriminatory. Even before 1995, Allen believed she was the victim of discrimination. Def. Ex. 6, Allen dep. at 85-86. Allen believed her salary was set at the minimum because of her race. Id. She believed since she began working there was a pattern whereby “African-Americans are put at th[e] minimum and non-African-Americans are put at a higher range.” Id. at 87. With regard to the 1995 promotion, Allen testified that in February 1995, Ta-pling offered Allen the manager position. Id. at 212-13. Allen asserts she accepted the position. Id. In spite of Tapling’s offer, in early March 1995, Tapling announced that Lebrón, .a non-African-American, received the manager position. Id. at 211. This alone should have put Allen on notice that the 1995 promotion might be discriminatory. But there was more. When the 1995 decision was made, Allen believed her performance was superior to Lebron’s. Id. at 218. Allen believed she was more qualified for the promotion and that it was given to a less qualified non-African-American. Id. Allen’s present self-serving statement that she had no reason to believe in 1995 that the decision to promote Lebrón was discriminatory is unreasonable in view of her own deposition testimony about her earlier perceptions of racial discrimination at the CTA.

Burnette also believed in 1995 that she was more qualified for the promotion given to Lebrón. Def. Ex. 7, Burnette dep. at 125-30. Burnette believed Lebron’s work performance was poor, that he did not do his share of work, and that he was unprofessional. Id. Burnette had purported information when the 1995 promotion decision was made that through the exercise of reasonable diligence suggested the decision might be discriminatory. Like Allen, Burnette’s professed belief she had no reason to suspect the 1995 promotion was discriminatory is unreasonable and contrary to the record. In sum, the continuing violation theory is unavailable to Allen and Burnette.

The equitable tolling argument fails for the same reason. Allen and Burnette were not required to sue the CTA for the 1995 promotion until they knew or should have known through the exercise of reasonable diligence that they were discriminated against. Jones v. R.R. Donnelley & Sons, No. 96 C 7717, 1999 WL 639180, at *2 (N.D.Ill. Aug. 17, 1999). Their own testimony suggests they each had a basis to suspect that the promotion was discriminatory when the decision was announced in 1995. Both believed at the time that they were more qualified for the promotion than the non-African-American candidate selected. Jackson v. Rockford Hous. Auth., 213 F.3d 389, 396 (7th Cir.2000). Neither can pursue a Title VII claim with regard to the 1995 promotion. Jackson, 213 F.3d at 396; Moskowitz, 5 F.3d at 282; Smith v. Allstate Ins. Corp., 24 F.Supp.2d 870, 874 (N.D.Ill.1998).

The 1997 Promotion Claim

To succeed on their claims based on the 1997 promotion, Allen and Burnette must present either direct evidence that they were discriminated against or proceed under the indirect method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). They do not proffer direct evidence of discrimination, and thus must proceed under the indirect, burden-shifting method. In order to establish a prima facie case of race discrimination, they must show: they belong to a racial minority; they applied and were qualified for a job for which the CTA was seeking applicants; that, despite their qualifications, they were rejected; and the position was given to someone of a different race who had similar or lesser qualifications. Perdomo, 67 F.3d at 144. To satisfy the application requirement where jobs are un-posted, each must show they would have applied if the jobs were posted. Jaffe v. Johnson, No. 86 C 7818, 1988 WL 37694, at *5 (N.D.Ill. Apr. 19, 1988); Rodgers v. Peninsular Steel Co., 542 F.Supp. 1215, 1220 (N.D.Ohio 1982), cited in Box v. A & P Tea Co., 772F.2d 1372, 1376 (7th Cir.1985).

Once a prima facie case is established, the burden of production shifts to the CTA to articulate a legitimate, nondiseriminato-ry reason for its actions. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994). If the CTA does so, it has satisfied its burden and Allen and Burnette must then establish that the CTA’s reason was pretextual. Id. In order to survive summary judgment, they must show a reasonable fact finder could infer that the CTA did not honestly believe the reasons for the promotion decision. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir.1994).

1. The prima facie case

The only element of the prima facie case the CTA asserts Allen and Burnette cannot establish is that Reilly was less qualified. The CTA points to Reilly’s human resources certification