Norman-Nunnery v. Madison Area Technical College et al

Filing 49

ORDER granting 22 Motion for Summary Judgment. Signed by Chief Judge Barbara B Crabb on 3/5/09. (vob)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------JU D Y ROSE NORMAN-NUNNERY, OPINION AND ORDER Plaintiff, 0 8 - cv -3 2 0 - b b c v. M A D I S O N AREA TECHNICAL COLLEGE, C A R O L BASSETT, WILLIAM STRYCKER and JA CK IE THOMAS, D efendan ts. --------------------------------------------In 2005, plaintiff Judy Rose Norman-Nunnery applied for a position with defendant M adiso n Area Technical College. She did not receive an interview. She brought this suit under Title VII of the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983, contending that the college and defendants Carol Bassett, William Strycker and Jackie Thomas refused to interview or hire her because she is African American and because they dislike her husband. Because plaintiff has adduced no evidence from which a jury could reasonably find that eith er of these reasons motivated defendants' decision, I must grant defendants' motion for sum m ary judgment. F ro m the parties' proposed findings of fact and the record, I find that the following 1

facts are undisputed.

U N D IS PU T ED FACTS A . Plaintiff's Background Plaintiff Judy Rose Norman-Nunnery is African American. She received a doctorate from the University of Wisconsin­Madison in education, continuing and vocational; she has a master's degree from Louisiana Tech University in home economics education with a m ino r in educational administration. From 1984 to 1987, plaintiff was the vocational education coordinator for the M ilw aukee Public Schools. From 1987 to 2003, she worked in state government, first as the adm inistrator for the Department of Health and Human Services and then as the adm inistrator for the Workers' Compensation Division and the Division of Vocational R ehabilitation in the Department of Workforce Development. These are all managerial po sition s. (In her proposed findings of fact, plaintiff goes into great detail about her adm inistrative, technical and supervisory responsibilities and knowledge at these jobs. Plt.'s PFO F, ¶¶30-62 dkt. #40. Because defendants' stated reasons for declining to interview plaintiff are unrelated to her experience in these areas, it is unnecessary to discuss those f a c ts . )

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B . Jimemez Lawsuit and Previous Application S in ce 1982 plaintiff has been married to Willie Nunnery, a lawyer. In 2000,

plaintiff's husband represented Elvira Jimenez in a race discrimination suit against defen da n ts Madison Area Technical College, Carol Bassett, Jackie Thomas and William S trycker. Defendant Madison Area Technical College is a public institution with its main cam pus located in Madison, Wisconsin; Thomas, Strycker and Bassett were employees at the college. Each knew that Nunnery was the lawyer for Jimenez. This court dismissed the case as frivolous. At a sanctions hearing, Strycker testified that he was "hurt" and "upset" b y the lawsuit. Bassett was "upset" by the lawsuit because Jimenez forged her signature and alleged that she had made racial slurs. In 2002, plaintiff applied for a position with the college as the executive dean of le a r n i n g . In an email, defendant Thomas "nominated" four possible candidates for the

p o s iti o n; plaintiff was not among them. Although plaintiff made it through the initial screening process, she was not interviewed for the position. In a document created by the college that lists the candidates for the position, their sex and race, plaintiff is identified as " b la c k . "

C . Plaintiff's Application for Disability Resources Services Administrator I n the spring of 2005, a new position was created at the college for a "disability 3

resource services administrator." The job posting listed the minimum qualifications for the po sition , including a master's degree and at least 4,000 hours of administrative experience. T he job description summarized the responsibilities of the position as follows: Direct the daily operation, activities and staff of Disability Resource Services across th e MATC district. Plan, develop, implement, monitor and assess programs and services meeting the requirements of Section 504 of the Rehabilitation Act of 1973 an d the Americans with Disabilities Act for eligible students with disabilities. Prom ote and support the success of students with disabilities emphasizing the develop m ent of the whole person with the student's learning experience. T h e description did not list "direct" experience with disabled persons or experience in a higher education setting as job requirements. B o b Wynn, a minority recruiter for the college, contacted plaintiff about the position an d told her that he believed she would be a good candidate for the job. At Wynn's suggestion plaintiff called Eugene Fujimoto to discuss her qualifications. Fujimoto was the co llege's "Diversity Coordinator/Affirmative Action Officer" and responsible for monitoring the hiring process for fairness. Fujimoto told plaintiff that her administrative experience

w ould be helpful "due to some issues internally in the disability resource services unit that needed to be addressed." P lain tiff applied for the position along with 76 other applicants. Defendant Carol B assett, the college's employment and benefits administrator for the human resources departm ent, conducted an initial screening to determine which applicants met the minimum

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qu alification s. This review reduced the applicant pool to 46 candidates, including plaintiff. T h e college employed a selection committee to determine which of the remaining 46 can did ates would be selected for an interview. The committee had five members, including Kevin Carini, Beth Bremer, Marilyn Fayram and Carol Higgans; defendant Jacquelyn T h o m a s was the chairperson. In a training session with Kristine Gebhardt, committee members used the position description to develop five "depth and breadth" criteria to screen candidates and assigned m axim um point values for each of them: (1) experience with higher education (two points); (2 ) experience with adult persons with disabilities (three points); (3) knowledge of current and emergent technologies for persons with disabilities (one point); (4) supervisory experience (two points); and (5) "experience with providing reasonable accommodations in an educational setting" (three points). These criteria were created before the applications w ere screened. After each of the 46 remaining applicants was scored independently by each com m ittee member, members discussed the rationale for their scores until the committee reached consensus. Defendant Thomas recorded the consensus score on her screening form. T he committee selected ten candidates for interviews; plaintiff was not among them. U nder the college's "EEO goals," three or more minority candidates had to be in the interview pool. Higgans had not brought the "affirmative action sheet" that identified the 5

app licants' race, so she retrieved it from the human resources office. A review of that sheet revealed that the committee had chosen only one minority candidate, an African American w om an . Higgans informed the committee that plaintiff was African American, but it chose tw o other minority candidates for interviews instead: an Asian male and a Hispanic female, w ho had the next two highest scores among the people of color. A fter a first round of interviews, the pool was reduced to three candidates, none of w hom was a minority candidate. Defendant William Strycker (vice president of human reso urces) and Carol Higgans were approached by Fujimoto. Until then, Strycker was not aw are that plaintiff was African American. Bassett learned that plaintiff was an African Am erican "around" the same time. Fujimoto was concerned that plaintiff had not been given an interview. Higgans told F ujim o to that plaintiff was not chosen because she scored lower in the "higher education" an d "experience with adult PWD" criteria than the selected applicants. D efendan t Strycker arranged a second meeting to discuss Fujimoto's concerns. D efendan ts Thomas, Bassett and Strycker were there, along with Fujimoto and Higgans. F ujim o to told the others that plaintiff had "a high level of administrative experience" and "an excellent background and that she had been recruited specifically for the position;" he w a s concerned that she had not been chosen "despite her minority status and excellent q ualificatio n s for the . . . position." Fujimoto said that he believed plaintiff "had a lot of 6

experience on her application" but that she had not used "the right words" to move through the screening process. He believed that they could make "assumptions" about her experience fro m her résumé and that "there may be specific items in her experience that they would learn if they had interviewed her." In addition, Fujimoto questioned the validity of some of the "depth and breadth" requirements. H iggans repeated to Fujimoto that plaintiff had not received an interview because her scores on "higher education" and "experience with adult PWD" criteria were lower than the other candidates, including the two minority candidates selected after the end of the first round of screening. When defendant Strycker asked whether anyone believed that

discrim ination had a played a role in plaintiff's failure to be selected, no one said it had. S trycker decided not to interview plaintiff; Higgans and Bassett agreed. In response to an inquiry from plaintiff, Fujimoto wrote to her, explaining that she did not receive an interview because "there were other candidates scoring slightly higher in som e categories. Thus, while you were a strong candidate, there were applicants who were stronger for this position. Of note is your extensive supervisory experience, while you were deem ed to be less strong in higher education experience and direct experience with people w ith disabilities." After a second round of interviews, a white woman, Sandra Hall, was selected for the po siti o n . (Defendants do not say in their proposed findings of facts who made the final 7

d ecisio n ). Hall had 30 years of experience in the "disability field," a master's degree in a "disability-related field," three years of experience at the University of Wisconsin­W hitewater supervising disability services, "experience with mental health" and "good" know ledge of assistive technology. D ivision of Worker's Compensation. When Bassett and Strycker first saw plaintiff's name in the applicant pool, they did not know any Nunnerys in Madison other than Willie Nunnery. (The parties do not say w hen Bassett and Strycker first saw plaintiff's name.) "At some point," Bassett became aw a re that plaintiff was Willie Nunnery's wife and she "may have" talked to Strycker and T ho m as about this. Bassett said something like "Oh, she is Willie Nunnery's wife." F ujim o to was responsible for compiling the college's report on affirmative action hiring and retention efforts. In Fujimoto's research he discovered that, for the ten years le ad in g up to 2005, between six and seven percent of administrators at the college were persons of color; this represented a decrease in representation from the previous ten-year perio d. He conducted a "nonexperimental study" isolating the "depth and breadth" criteria an d their effect on hiring at the college. He concluded that race affected the college's hiring decisions, including the decision not to interview plaintiff, "on a structural level" because the college used an "insider-favored system." For example, he noted that most full-time faculty po si ti o n were filled with members of the part-time faculty and that 95% of the part-time 8 Hall had been a member of plaintiff's staff at the

faculty members were white.

D . Missing Documents In 2005, the college was still using paper applications. After the college filled the po sition for disability resources services administrator, all of the screening forms and scores w ere placed in a "job file," in accordance with policy at the time. The applications for a p articu lar position were stored separately from each other and from the screening d ocu m e nts. Instead, they were filed on the basis of "category of position, year of application an d then alphabetically by the applicant's last name." These documents are stored for 10 to 15 years. However, before being filed, the applications were placed on tables on stacks as high as three feet. Various employees are responsible for filing applications, including student employees. The human resources department moved in June 2005 and December 2005 to acco m m o date office remodeling. All the applications in the office had to be boxed and shipped for both of these moves. By the time of plaintiff's hearing before the Equal Rights Division in 2006, 26 of the application s for the administrator position were missing, including plaintiff's application and the applications of everyone offered an interview except Sandra Hall. (Once she was chosen fo r the position, her application materials were moved to her personnel file.) Also missing 9

is Thomas's screening form containing the consensus scores. The last time anyone can recall seeing plaintiff's application and Thomas's depth and breadth screening form, Fugimoto had them during the meeting between Fugimoto, Bassett, Thomas, Strycker and Higgans. However, Fujimoto believes that he returned these materials to the human resources office. D e sp ite an "exhaustive" search by various employees, the application materials have not been found. W hen the Equal Rights Division requested the application and screening materials, a lawyer for the college wrote, "[t]he Complainant's application materials were with Mr. E ugen e Fujimoto when he investigated her concerns. Mr. Fujimoto has left the college and h er material is not available." Strycker reviewed this response and testified at the hearing that he did not observe any inaccuracies in it despite his knowledge that Fujimoto stated that h e had returned to the college all the application materials he had taken.

O PIN IO N P lain tiff contends that defendants did not interview or hire her for the administrator position because she is an African American and because she is married to Willie Nunnery, w h o was the attorney for a woman who had sued defendants for race discrimination in 2000. Plaintiff's claim for race discrimination is one that is well recognized under the equal protection clause, Title VII and 42 U.S.C. § 1981. The law is much less clear regarding the 10

viability of a claim for discrimination because of a marital relationship. Although courts have long recognized that marriage is a fundamental right protected by the Constitution, e.g., Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978), courts have not reached a consensus on the scope of this right in the context of the work place. E.g., Adler v. Pataki, 185 F.3d 35, 44 (2d Cir.1999) (concluding that right of association in w ork place arises under First Amendment rather than due process clause and suggesting that Pickering balance might be appropriate but it was unnecessary to decide because record did no t show that spouse's conduct "threatened the proper functioning" of government); S in gleto n v. Cecil, 133 F.3d 631, 635 (8th Cir.1998) (concluding that plaintiff could not p revail on claim for violation of right to intimate association because city's termination of plaintiff "on the basis of his wife's conduct simply did not substantially or directly interfere w ith Singleton's right to enter and maintain his marital relationship"); McCabe v. Sharrett, 1 2 F.3d 1558 (11th Cir.1994) (concluding that employee had right of intimate association in work place and noting several different standards of review but declining to choose one b ecau se plaintiff could not satisfy any of them); Adkins v. Board of Education, 982 F.2d 952 (6th Cir.1993) (concluding that right of association exists in work place, that standard was w hether plaintiff was subjected to "undue intrusion" of marital relationship and that st a n d a r d could be satisfied by termination of employment because of marriage). See also Balton v. City of Milwaukee, 133 F.3d 1036, 1032 (7th Cir.1998) (stating that 11

C on nick-Pickerin g test would not fit "some associational choices--for instance, whom to m arry"-- that are purely private matters because it would not be possible to establish that em p lo yee's conduct addressed matter of public concern); Yasiri v. Board of Regents of U n iversity of Wisconsin System, No. 99-C-51, 2000 WL 34230253, *12 (W.D. Wis. Jan. 28 , 2000) (noting that other courts had applied right of intimate association in work place but declining to determine its application because plaintiff could not prove that she lost tenure because of her marriage). R egardless of the scope of plaintiff's rights or the appropriate standard of review to app ly, she cannot prevail on either of her claims unless she has evidence that defendants declined to interview her because of her race or because of her marriage. Because I conclude that she has not satisfied this requirement of her claims, I need not consider any other issue. A plaintiff in a discrimination or retaliation case may prove her claim directly with evidence suggesting that the illegal factor motivated the defendants' decision or indirectly by showing that the defendants' reasons for taking an adverse act are not worthy of belief. F aas v. Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008). Regardless of the method of proof, the ultimate question is the same: whether a reasonable jury could find that the defendan ts discriminated against or retaliated against the plaintiff. Simple v. Walgreen Co., 51 1 F.3d 668, 670-71 (7th Cir. 2007). Plaintiff falters at the starting gate because she fails to adduce any evidence that any 12

relevan t decision maker knew her race or her marital status when she was eliminated from th e pool of candidates. For any claim in which motive is an element, a threshold

requ irem ent is that the plaintiff must prove that defendants were aware of the characteristic that allegedly provided the impetus for discrimination. Plaintiff adduces no evidence that her marriage to Willie Nunnery was apparent from her application and, although plaintiff identified her race in her application materials, it is undisputed that the five employees screening plaintiff's application did not have this information while they were scoring each o f the candidates. Thus, at the point that plaintiff fell out of the running, it is simply not p o ssib le that plaintiff's race or marriage played a part in that decision. P la in tiff argues that defendant Thomas was aware of her race because Thomas was in vo lved in the hiring decision for another position for which plaintiff applied in 2002. H o w e ver, the facts show only that Thomas nominated several candidates for consideration; plaintiff points to no admissible evidence that suggests Thomas ever reviewed plaintiff's application in 2002, much less that Thomas reviewed documents showing that plaintiff was black. Similarly, the only evidence that anyone was aware of plaintiff's marriage during the com m ittee's initial screening is Thomas's testimony that Willie Nunnery was the only other N un nery that she knew when she reviewed plaintiff's application. However, Thomas denies th at she connected plaintiff with Willie Nunnery at the time. I cannot conclude that simply sharing an uncommon last name would be enough to permit a reasonable jury to find that 13

T ho m as must have believed the two were married. Davis v. Carter, 452 F.3d 686, 697 (7th Cir. 2006) ("[W]hen the evidence provides for only speculation or guessing, summary judgm ent is appropriate.") E ven if I were to assume that Thomas was aware of plaintiff's race or marriage and th at she harbored animus against plaintiff for one of these reasons, this would not necessarily p ro vid e much help to plaintiff. Thomas was only one of five members on the selection c o m m i ttee; plaintiff does not propose any facts to suggest that any of the other four m em bers had an illegal motive for rejecting her application. Although plaintiff does not have to show that all of the committee members or even a majority of them held discriminatory beliefs , at the least she must adduce evidence that Thomas held influence over the other m em bers. Haka v. Lincoln County, 533 F. Supp. 2d 895, 914-15 (W.D. Wis. 2008); cf. B r ew e r v. Board of Trustees of University of Ill., 479 F.3d 908 (7th Cir. 2007) (discrim inatory intent of nondecision maker with "singular" or "significant" influence may be imputed to decision maker). Plaintiff does not suggest that Thomas had such influence; rathe r , it is undisputed that the committee chose the initial ten candidates for interviews throu gh "consensus scoring." T he committee members did not learn plaintiff's race until after plaintiff was elim inated and they determined that they had not chosen enough minority candidates to m eet the college's diversity goals. It is somewhat odd to argue, as plaintiff appears to be 14

d oin g, that defendants discriminated against her in the context of giving her application a secon d chance because she is a person of color, an opportunity that most of the other rejected cand idates did not receive. After reviewing the applications from minority candidates a second time, the committee chose to interview an Asian and a Latino candidate on the ground that they had the next highest "depth and breadth" scores. Thus, to prove

discrim ination at this point in the process, plaintiff would have to show that defendants preferred an Asian or Latino candidate over an African American and that they manipulated the scoring or lied about it so that plaintiff would not be selected. The problem with this theory is that plaintiff has adduced no evidence to support it. To begin with, it seems counterintuitive to say that the committee believed that it was un acceptable to choose plaintiff because she is an African American when the committee did choose another African American woman to be interviewed. If the committee members were so opposed to plaintiff's application that they were willing to doctor the scores to exclude her, why would they have not done the same thing to the other African American woman w hose scores qualified her for an interview? (The answer to this question cannot be plaintiff's marriage because the committee members still had not learned about her marital s t a tu s . ) Also, plaintiff does not dispute the committee's ground for not choosing her, which is that she lacked experience in higher education and direct experience working with people 15

w ith disabilities. Plaintiff attempts to challenge the validity of these considerations by pointing out that they were not listed in the job description. This gets plaintiff nowhere because it is undisputed that these criteria were adopted by the committee before members screened the candidates and thus before they knew plaintiff's race or marital status. It makes little difference whether the criteria are a fair reflection of the position description or w hether the criteria are even reasonable unless plaintiff can show that the unreasonableness i s linked to discriminatory animus. As has been stated in countless decisions, anti-

discrim ination laws do not prohibit employers from being unreasonable. E.g., Grayson v. O 'N eill, 308 F.3d 808, 820 (7th Cir. 2002); Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 20 00 ). P lain tiff suggests (through Fujimoto's study) that the "depth and breadth" criteria and the college's hiring practices in general tended to favor white candidates "on a structural lev el," but this does not support her claim. Even if I accepted Fujimoto's opinion, it would b e relevant only to a claim under a disparate impact theory, which plaintiff is not asserting in this case. To prevail on the claim she is asserting, plaintiff must show that defendants discrim inated against her intentionally. For similar reasons, it is not enough for plaintiff to show that persons of color are under-represented at the college. Although statistical data m ay sometimes be relevant in a discrimination case, it sheds little light on any individual decision. This is why the court of appeals has held repeatedly that simply showing a racial 16

d isp arity without accounting for other factors is not sufficient to defeat a motion for su m m ary judgment. Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772, 78 2-8 3 (7th Cir. 2007); Barricks v. Eli Lilly and Co., 481 F.3d 556, 559(7th Cir. 2007); B aylie v. Federal Reserve Bank of Chicago, 476 F.3d 522, 523-25 (7th Cir. 2007). Plaintiff tries to explain her lack of evidence by blaming it on defendants. She argues th at the evidence she needs to prove discrimination would have been found in the missing ap plicatio n materials for the other candidates and the screening form Thomas used. Relying on the spoliation doctrine, she says she is entitled to an inference that these documents w ou ld have supported her claims. Plaintiff's argument fails for two reasons. First, it is unclear how the missing

ap plicatio n materials could do plaintiff much good. Again, because the committee did not k no w plaintiff's race or marital status while they were screening the applicants, it would not necessarily be evidence of discrimination if the application materials showed that plaintiff w as more qualified than some of the candidates who received interviews. It would show only that the committee did a poor job of screening the applications. S econ d, plaintiff has not met the demanding standard for proving spoliation. When d ocu m e nts are missing, a party is not entitled to an adverse inference unless she can show th at the other party "intentionally destroyed the documents in bad faith." Faas, 532 F.3d at 644-45. The undisputed facts show that the college's filing system in 2005 and 2006 was 17

extrem ely disorganized, that all of the human resources files were moved twice during the relevan t time period and that Fujimoto was the last person to have been seen with at least som e of the missing documents. All of these facts suggest that the documents have been inad vertently lost rather than destroyed in an effort to hide harmful evidence. The facts to which plaintiff points in support of a finding of spoliation are simply not persuasive. It is not surprising that Sandra Hall's materials were not lost, because they were filed separately from the other applications. It is not suspicious that the documents were lost so m etim e between Fujimoto's meeting with defendants and the Equal Rights Division hearing, because no one would have used the application materials during that time period. T h e college's lawyer's letter to the Equal Rights Division may have omitted some relevant facts by suggesting that Fujimoto had plaintiff's application materials without acknowledging that Fujimoto said that he believed he returned those documents. However, the letter did no t include any inaccurate statements. It is not plausible to suggest that defendants must h ave destroyed the documents because their lawyer failed to explore all possible explanations fo r their loss. Tellingly, plaintiff cites no cases in support of her argument that a finding of spo liation would be appropriate in this case. T h is leaves plaintiff's contention that defendants Bassett, Strycker and Johnson discrim inated against her when they refused to interview her even after Fujimoto intervened on her behalf. This argument is without merit. 18 By the time Fujimoto approached

defendants, the first round of interviews had already been conducted and the pool of cand idates had been reduced to three. Defendants were understandably reluctant to revisit d ecisio n s made by the committee. Far from suggesting that defendants were acting in a discrim inatory manner, their refusal to make an exception for plaintiff shows their concern fo r treating all candidates equally. Even if altering the process might have been reasonable u nd er some circumstances, Fujimoto did not provide defendants with any information supp ortin g a view that plaintiff was being treated unfairly. He did not contradict

defendants' view that plaintiff did not have direct experience working with disabled people or experience in higher education. Rather, he asked that they "assume" that she was qu alifi e d for the position until they interviewed her. Again, by refusing this request,

defendan ts simply treated plaintiff the same as every other candidate. B ecau se plaintiff has failed to adduce evidence that anyone involved in the hiring p ro cess wished to deny her an interview because of her race or marital status, I must grant defendan ts' motion for summary judgment.

OR DER IT IS ORDERED that the motion for summary judgment filed by defendants M adison Area Technical College, Carol Bassett, William Strycker and Jackie Thomas is G R AN TE D . The clerk of court is directed to enter judgment in favor of defendants and 19

close this case. E n tered this 5 t h day of March, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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