Rudin, Janine v. Lincoln Land Communi ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3711
JANINE RUDIN,
Plaintiff-Appellant,
v.
LINCOLN LAND COMMUNITY COLLEGE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 C 3079—Jeanne E. Scott, Judge.
____________
ARGUED APRIL 11, 2005—DECIDED AUGUST 25, 2005
____________
Before POSNER, RIPPLE and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Janine Rudin brought this action
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., against her employer, Lincoln Land Commu-
nity College (“LLCC”), for alleged race and sex discrimina-
tion. The district court granted summary judgment to LLCC
on both claims. Ms. Rudin timely appealed. For the reasons
set forth in the following opinion, we reverse the judgment
of the district court and remand for further proceedings.
2 No. 04-3711
I
BACKGROUND
A. Facts
LLCC is a community college located in Springfield,
Illinois. In early 2002, LLCC announced its plan to fill a
vacancy for a Business Administration instructor (“the
position”), a full-time, tenure-track position in LLCC’s
Department of Business and Public Services (“the Depart-
ment”). Over one hundred individuals applied for the
position.
Ms. Rudin, who is a Caucasian female, submitted an
application for the position. Since 1993, Ms. Rudin had been
an adjunct instructor in the Department. According to Ms.
Rudin’s resume, she possesses a bachelor’s degree in
management and a master’s degree in public administra-
tion, both earned from Sangamon State University.
Hiring for the position was governed by LLCC’s
“Screening and Interviewing Committee Processes and
Guidelines” (the “Guidelines”). R.22, Tab 18 at 1. Pursuant
to the Guidelines, a screening committee (the “Screening
Committee” or “Committee”) was convened to review the
applications for the position. Richard Bowen, chair of the
Department, was the chair of the Screening Committee.
According to the procedures set out in the Guidelines, nine
other individuals (including Department faculty members,
faculty from other departments and LLCC staff members)
served on the Screening Committee. The parties agree that
the Committee’s members did not all participate equally in
the hiring process.
The Screening Committee completed the process identi-
fied in the Guidelines as “Candidate Screening,” in order to
“reach a consensus on those candidates” who were accept-
able or suitable for an interview. R.22, Tab 18 at 2. Ms.
No. 04-3711 3
Rudin was among those selected for an interview by this
process.
Following the Screening Committee’s review of the
candidates, the list of those selected for an interview
was sent, pursuant to the Guidelines, to Nicole Ralph,
LLCC’s Equal Opportunity Compliance Officer, for her
review. According to the Guidelines, this review could
result in: “(a) proceed[ing] with candidates selected by
the committee, (b) add[ing] minority candidates to the
pool to be interviewed, or (c) . . . halt[ing] the screening
process.” R.22, Tab 18 at 3. Ralph testified at her deposition
that her role in reviewing the list of interviewees was to
“determin[e] if there was sufficient diversity among the
interviewees.” R.18, Tab H at 2.
It was at this point that Paul Hudson, an African-Amer-
ican male who had applied for the position but who had
not been selected for an interview in the Candidate Screen-
ing process, was added to the interview pool. Ralph de-
scribed her rationale for adding Hudson to the list of
interviewees: “I saw Hudson’s resume and after looking
at it, I saw that he was comparable to the other candi-
dates . . . .” R.18, Tab H at 80. She reviewed her selection of
Hudson with Bowen, and Hudson was included on the list
of candidates to be interviewed. During the Candidate
Screening process, Bowen had been the only Committee
member to recommend Hudson for an interview.
According to Hudson’s resume, he had a bachelor’s
degree in business administration from Western Michigan
University, a master’s degree in management from Nazareth
College and a master’s degree from Western Michigan
University in an unspecified field. Hudson had previous
teaching experience; according to his resume, he had
worked as an instructor teaching business-related courses at
seven colleges including LLCC, where he taught a market-
4 No. 04-3711
ing course in 1999.
Once the list of candidates to be interviewed had been
finalized by adding Hudson’s name, interviews for the
position were conducted. Not all members of the Committee
interviewed all candidates.
Following the candidate interviews, Bowen scheduled
a meeting of the Screening Committee at which the Commit-
tee would make its recommendation for the position.
However, only Bowen and Screening Committee mem-
ber Arthur Meyer, Jr. attended that meeting. The parties
agree that no Committee-wide discussion of the candi-
dates took place.
Despite the fact that Bowen never met with the rest of the
members of the Screening Committee, it is clear that, at
some point following the interviews, Committee member
Meyer compiled rankings of the interview candidates
from the rest of the Committee. The Committee members
were allowed to cast votes only for candidates they had
interviewed. Ms. Rudin was rated second-highest in these
rankings. Hudson was ranked second from the bottom.
The parties dispute whether the Committee’s rankings
were made available to Bowen before he recommended to
his superiors that Hudson be hired for the position. Al-
though LLCC contends that Bowen did not have the Com-
mittee’s rankings as of the day he made his recommenda-
tion, Committee member Meyer testified at his deposition
that he had forwarded the Committee’s rankings of candi-
dates to Bowen before Bowen recommended Hudson.
On April 8, 2002, Bowen recommended Hudson to Eileen
Tepatti, LLCC’s Assistant Vice President of Instruction. The
parties do not dispute that Bowen made the recommenda-
tion without the input of the Selection Committee. Also on
No. 04-3711 5
April 8, 2002, Tepatti recommended Hudson to Dana Grove,
LLCC’s Vice President of Academic Affairs. On the same
day, Grove passed on his recommendation of Hudson to Dr.
James Howard, who was then President of LLCC.
Bowen informed Ms. Rudin in a telephone call of April 12,
2002, that she would not be hired for the position. Accord-
ing to Ms. Rudin, Bowen told her that he had been under
“administrative pressure” with respect to the hiring decision
and that he “had nothing to do with the decision.” R.21, Tab
7 at 126. Ms. Rudin also recalled that Bowen told her that
the person who had been hired was not more qualified than
she was and had not been teaching at LLCC longer than she
had. Bowen did not tell Ms. Rudin that Hudson had been
hired.
At some point after learning that she would not be hired
for the position, Ms. Rudin contacted and subsequently met
with several members of LLCC’s Board of Trustees (“the
Board”) regarding her belief that she should have been
hired. It is not clear how many of the seven members of the
Board agreed to meet with Ms. Rudin. In her deposition, she
testified that she met with four members of the Board. In
notes taken around the time of the meeting, she identified
five members of the Board with whom she had met.
Around the same time, Ms. Rudin made an appointment
to meet with Dr. Howard.1 At that meeting, Ms. Rudin
recalled in her deposition, Dr. Howard told her that “Rich
Bowen [was] lying” about the existence of administrative
pressure to make a hiring decision. R.21, Tab 7 at 42. He also
1
In her deposition, Ms. Rudin testified that she did not remem-
ber when this meeting with Dr. Howard occurred. Some notes
that she took closer to the time of the events in this case place
the meeting’s date at April 30, 2002.
6 No. 04-3711
said, “I had nothing to do with who gets hired so there is no
administrative pressure.” Id. Ms. Rudin also recalled that
Dr. Howard told her that “there was a problem with the
process, the way the hiring was done.” Id.
On April 24, 2002, Dr. Howard recommended Hudson to
the Board, the body that had the ultimate authority to make
the hiring decision. The Board did not reach a decision on
whether to hire Hudson at that time. Around the time that
Dr. Howard recommended Hudson to the Board, he
requested that Tepatti document the decision to recommend
Hudson. Tepatti prepared two memoranda, dated April 22
and April 29.
Tepatti’s April 22 memorandum described the hiring
process. It explained that Bowen “considered Paul Hudson
qualified and a very successful LLCC adjunct with excellent
student evaluations. . . . Given all of this as well as the
college’s focus on minority hiring, [Bowen] selected him for
the position.” R.18, Tab G at 9-10. The April 22 memoran-
dum also stated that “the committee was very upset with
[Bowen]—Janine was too.” R.18, Tab G at 10. Tepatti
attributed some of the Committee’s reaction to the fact
that “some members of the [Department of Business and
Public Services] have a problem with the focus on minority
hiring goals at the college.” Id. She also noted that Ms.
Rudin had made it clear in the past that she would want the
position when it became vacant and suggested that Ms.
Rudin had “developed an entitlement attitude in the past
couple of years.” Id.
Tepatti’s April 29 memorandum also reviewed the process
by which Hudson became the recommended candidate for
the job. The April 29 memorandum discussed the process by
which Hudson was added to the interview pool, the manner
in which the interviewed candidates were evaluated and
No. 04-3711 7
Bowen’s ultimate decision to recommend Hudson. In the
memo, Tepatti stated that she “asked [Bowen] point blank
about [Ms. Rudin’s] assertions [that Bowen had been
pressured to hire Hudson]. Emphatically and without
hesitation, [Bowen] responded that he did not tell [Ms.
Rudin] or anyone else that ‘higher ups’ had forced him or
put pressure on him to hire Paul Hudson.” R.18, Tab D at
15. In her April 29 memorandum, Tepatti endorsed hiring
Hudson.
Dr. Howard prepared a memorandum, dated April 30,
2002, again recommending approval of Hudson for the
position. Howard’s April 30 memorandum further ex-
plained that, although “questions were raised concerning
proper procedure used in th[e] selection” of Hudson for the
position, he was “completely satisfied that established
processes have been followed and that the recommenda-
tions are both objective and appropriate.” R.18, Tab D at 13.
Dr. Howard also noted that Hudson’s hiring “offer[ed] . . .
the opportunity to address the Board’s concern with
minority representation among faculty and staff at the
college.” Id.
Dr. Howard’s memorandum of April 30 and Tepatti’s
memorandum of April 29 were provided to the Board for a
special meeting held May 2, 2002. At that meeting, the
Board decided to hire Hudson for the position.
8 No. 04-3711
B. District Court Proceedings
Ms. Rudin filed the complaint in this action in April 2003.
She advanced two Title VII claims: a claim for race discrimi-
nation and a claim for sex discrimination. After the
parties engaged in discovery, the district court granted
LLCC’s motion for summary judgment.
The district court determined that there was no direct
evidence of race discrimination. Relying on an Eighth
Circuit case, Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997),
cert. denied, 523 U.S. 1137 (1998), the court concluded that
the inclusion of Hudson in the interview pool was not direct
evidence of discrimination. The court also concluded that
neither Bowen’s statements nor the administrative memo-
randa that justified Hudson’s hiring on non-discriminatory
as well as diversity grounds constituted direct evidence of
discrimination.
The court further determined that Ms. Rudin could not
make out a prima facie case of race discrimination based
on indirect evidence. Therefore, the court granted summary
judgment for LLCC on Ms. Rudin’s race claim.2
The court next turned to Ms. Rudin’s gender claim. As it
does on this appeal, LLCC conceded before the district court
that Ms. Rudin could establish a prima facie case of gender
discrimination. Thus, proceeding according to the frame-
work set out in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), the court considered whether LLCC had a
2
The court also noted that, even had Ms. Rudin been able to
establish the prima facie case for race discrimination, she
would have been unable to rebut LLCC’s proffered non-dis-
criminatory reason for hiring Mr. Hudson. However, the court
did not address the other factors of the prima facie indirect
case for reverse racial discrimination.
No. 04-3711 9
legitimate, non-discriminatory reason for hiring Hudson. It
concluded that LLCC’s assertion that it had hired Hudson
because he was the most qualified candidate was a legiti-
mate, non-discriminatory reason. Because the district court
perceived that Ms. Rudin had not even attempted to
establish pretext, it granted summary judgment for LLCC as
to her gender claim.
II
DISCUSSION
A. Standard of Review
We review a district court’s grant of summary judgment
de novo. Sartor v. Spherion Corp., 388 F.3d 275, 277 (7th Cir.
2004). We view all facts in the light most favorable to the
nonmoving party, Ms. Rudin, and we draw all reason-
able inferences in her favor. Eiland v. Trinity Hosp., 150
F.3d 747, 750 (7th Cir. 1998). We shall uphold the grant of
summary judgment if “the pleadings, depositions, answers
to the interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
B. Race Discrimination
Title VII makes it unlawful for an employer “to fail or
refuse to hire . . . or otherwise to discriminate against any
individual . . . because of such individual’s race, color,
religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1).
The Supreme Court has explained that “the obligation
imposed by Title VII is to provide an equal opportunity for
10 No. 04-3711
each applicant regardless of race.” Furnco Const. Corp. v.
Waters, 438 U.S. 567, 579 (1978) (emphasis in original).
Ms. Rudin has alleged that LLCC violated Title VII by
engaging in intentional discrimination, “i.e., disparate
treatment,” based on her race. Nanda v. Bd. of Tr. of Univ. of
Illinois, 303 F.3d 817, 829 n.6 (7th Cir. 2002). Thus, Ms. Rudin
“can avert summary judgment for [LLCC] . . . either by
putting in enough evidence, whether direct or circumstan-
tial, of discriminatory motivation to create a triable issue or
by establishing a prima facie case under the McDonnell
Douglas formula.” Sheehan v. Daily Racing Form, Inc., 104
F.3d 940, 940 (7th Cir.) (citing McDonnell Douglas Corp., 411
U.S. 792), cert. denied, 521 U.S. 1104 (1997); see also Logan v.
Kautex Textron N. America, 259 F.3d 635, 638 (7th Cir. 2001)
(noting that “the pertinent question” in a Title VII case “is
not whether a plaintiff has direct (including circumstantial)
or indirect proof of discrimination, but whether [she] has
presented sufficient evidence that [her employer’s] deci-
sion . . . was motivated by an impermissible purpose”).
1.
The method of proving race discrimination by putt-
ing forth evidence of discriminatory motivation often is
called the “direct” method. See Sheehan, 104 F.3d at 941. A
plaintiff proceeding according to the direct method may rely
on two types of evidence: direct evidence or circumstan-
tial evidence.3 See Logan, 259 F.3d at 638; see also Troupe v.
3
From the parties’ submissions, it appears that both Ms. Rudin
and LLCC have confused the direct method of proof with direct
evidence of discrimination. Such confusion is understandable;
(continued...)
No. 04-3711 11
May Dep’t Stores, 20 F.3d 734, 736 (7th Cir. 1994).
a.
“Direct evidence is evidence which, if believed by the trier
of fact, will prove the particular fact in question
without reliance upon inference or presumption.” Eiland,
150 F.3d at 751 (internal quotation omitted). Direct evidence
“can be interpreted as an acknowledgment of discrimina-
tory intent by the defendant or its agents.” Troupe, 20 F.3d
at 736. Direct evidence is a “distinct” type of evidence that
uniquely reveals “intent to discriminate[, which] is a mental
state.” Id.For instance, in Mojica v. Gannett Co., 7 F.3d 552 (7th Cir.
1993) (en banc), cert. denied, 511 U.S. 1069 (1994), which this
court later characterized as a direct evidence case, see
Troupe, 20 F.3d at 736 (citing Mojica as a case exhibiting
direct evidence of discrimination), the plaintiff testified that,
inter alia, a manager had told her “that she would not be
3
(...continued)
“[t]here are several cases that arguably conflate the direct method
with direct evidence.” Rogers v. City of Chicago, 320 F.3d 748, 754
(7th Cir. 2003); see also Sheehan v. Daily Racing Form, Inc., 104 F.3d
940, 941 (7th Cir. 1997) (“The confusion lies in the fact that the
direct method may employ circumstantial evidence along with or
for that matter in place of ‘direct’ evidence . . ., which in an
employment discrimination case would normally require an
admission.”). Nonetheless, “we reemphasize here that use of
direct evidence is merely one of two means (the other being the
use of circumstantial evidence) of proceeding under the direct
method.” Rogers, 320 F.3d at 754. Despite the parties’ apparent
confusion, we shall consider both direct evidence and circum-
stantial evidence in our inquiry into whether Ms. Rudin has
satisfied the direct method of proving race discrimination.
12 No. 04-3711
promoted to a more lucrative shift because she was not ‘a
black male.’ ” Mojica, 7 F.3d at 561. In Plair v. E.J. Brach &
Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997), we stated that
“direct evidence would be what [the employer] said or did
in the specific employment decision in question.” For
example, evidence that an employer “said he discharged
[the plaintiff] because he is black” constitutes direct evi-
dence. Id.b.
Circumstantial evidence of discrimination, on the other
hand, allows the trier of fact “to infer intentional discrimina-
tion by the decisionmaker.” Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003) (emphasis added). We have
recognized three distinguishable kinds of “circumstantial”
evidence of intentional discrimination:
The first consists of suspicious timing, ambiguous
statements oral or written, behavior toward or com-
ments directed at other employees in the protected
group, and other bits and pieces from which an infer-
ence of discriminatory intent might be drawn. . . .
Second is evidence, whether or not rigorously statistical,
that employees similarly situated to the plaintiff other
than in the characteristic (pregnancy, sex, race,
or whatever) on which an employer is forbidden to base
a difference in treatment received systematically better
treatment. . . . [T]hird is evidence that the plaintiff was
qualified for the job in question but passed over in favor
of (or replaced by) a person not having the forbidden
characteristic and that the employer’s stated reason for
the difference in treatment is unworthy of belief . . . .
No. 04-3711 13
Troupe, 20 F.3d at 736 (internal citations omitted).
Whether the plaintiff proceeding according to the direct
method relies on direct evidence or circumstantial evidence,
she can avoid summary judgment for the other party by
“creat[ing] a triable issue of whether the adverse employ-
ment action of which [s]he complains had a discriminatory
motivation.” Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,
1397 (7th Cir. 1997).
2.
Ms. Rudin’s submissions to this court and the district
court make reference, however brief, to the direct method of
proof. She has not invited our attention to any evidence that
meets the definition of direct evidence. As Ms. Rudin points
out, however, there is circumstantial evidence of intentional
discrimination in this case. See Appellant’s Br. at 42 (arguing
that Ms. Rudin has “offered extensive evidence that clearly
suggests that race was a motivating factor in the decision to
hire [Hudson]” (emphasis added)). Thus, we shall examine
the circumstantial evidence of intentional discrimination
present in this case.
a.
We think that the addition of Hudson into the interview
pool, when considered with the other facts and circum-
stances of this case, constitutes circumstantial evidence
of racial discrimination.
Some background will assist in placing this issue in
perspective. Before the district court, LLCC contended that
its policy was a great deal more than simply generating
the largest pool of quality applicants. Rather, it argued
that its race-conscious hiring process was a permissible way
14 No. 04-3711
of increasing diversity in its faculty. See Grutter v. Bollinger,
539 U.S. 306, 330 (2003) (approving the University of
Michigan Law School’s affirmative action program and
noting that “substantial” “educational benefits” accompany
diversity in the student body of an institution); see
also Comfort v. Lynn Sch. Comm., ___ F.3d ___, 2005 WL
1404464 (1st Cir. 2005) (approving use of race as a selection
criteria in school transfer policy in order to achieve
what local educators deemed an educationally salutary
racial balance in schools). However, on this appeal, LLCC
makes no such argument and, during oral argument,
explicitly abandoned reliance on such an approach. Instead,
it simply argues that the practice of inserting minority
candidates into the interview pool does not show that race
was a consideration in the employment decision at issue
here.4
While perhaps not sufficient, in itself, to support a finding
of racial discrimination, see Duffy, 123 F.3d at 1038-39,5 the
practice of including a racial minority in the candidate pool,
when considered with other factors in a case, can constitute
circumstantial evidence of race discrimination. Hudson’s
4
LLCC also has not argued that it is obligated to engage in some
form of affirmative action in order to comply with a remedial
decree or that it is engaging in affirmative action in order to
remedy any past discrimination on the part of the institution.
5
In Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997), the Eighth
Circuit stated that “an employer’s affirmative efforts to recruit
minority and female applicants does [sic] not constitute discrimi-
nation. . . . An inclusive recruitment effort enables employers to
generate the largest pool of qualified applicants and helps to
ensure that minorities and women are not discriminatorily
excluded from employment.” Id. at 1038-39 (internal citations
omitted).
No. 04-3711 15
name was inserted into the interview pool according to a
stated policy of LLCC that explicitly favored minority over
non-minority job applicants; Ralph stated in her deposition
that she would not “necessarily look at . . . white applicants”
in conducting her review of the candidates selected for
interviews. R.21, Tab 5 at 81. Hudson was not simply placed
in the general applicant pool; he was allowed to bypass the
first elimination.
Although Title VII does not outlaw all private, voluntary,
race-conscious affirmative action plans, United Steelworkers
of America v. Weber, 443 U.S. 193, 208 (1979), the existence of
an affirmative action plan may be “relevant to a key issue in
a disparate treatment discrimination case: discriminatory
intent.” Whalen v. Rubin, 91 F.3d 1041, 1045 (7th Cir. 1996).
Alone, “[t]he mere existence of an affirmative action policy
is, however, insufficient to prove that the [employer]
actually intentionally discriminated against [the em-
ployee].” Id. A Title VII plaintiff “must establish a link
between the [employer’s affirmative action] policies and
its actions toward [her]” in order to show intentional
discrimination. Id.Without passing judgment on whether at trial Ms. Rudin
will be able to persuade the finder of fact of the ultimate fact
of discrimination, we conclude that, at the summary
judgment stage of these proceedings, the evidence of
LLCC’s practice of inserting minorities into the interview
pool helps establish a triable issue of fact as to whether
LLCC had a discriminatory motive when it chose to hire
Hudson instead of Ms. Rudin. See id. The fact that Hudson
was inserted into the interview pool based on his race, when
combined with the other facts and circumstances of this
case, is certainly relevant and probative evidence that a trier
of fact may consider in determining whether LLCC had the
16 No. 04-3711
requisite intent to discriminate when it hired Hudson
instead of the plaintiff.
b.
Next, we believe that several statements attributed to
Bowen provide a strong basis for drawing an inference of
intentional discrimination. Repeatedly, Bowen told others
that he was under administrative pressure with respect
to the hiring decision; he either suggested or stated outright
that he was under pressure to recommend a minority
candidate for the position. The most straightforward
example is the statement of Meyer, a member of the Selec-
tion Committee, who testified in his deposition that he had
heard Bowen say that “he knew the administration above
him wanted a more diverse set of—more diverse—diversity
at Lincoln Land.” R.21, Tab 9 at 39. Pat Falconburg, who
was Bowen’s assistant at the time the hiring decision was
made, testified in a deposition that Bowen had told her, “I
have to do it this way because I’m getting a lot of adminis-
trative pressure.” R.21, Tab 2 at 35. Ms. Rudin herself
testified at her deposition that, when she had asked Bowen
about the hiring decision, “[h]e kept saying administrative
pressure, I had nothing to do with the decision.” R.21, Tab
7 at 126.
It is true that it is the motivation of the decisionmaker that
matters in the Title VII context, see, e.g., Rogers, 320 F.3d at
753, and it is also true that the Board—not Bowen—was the
final decisionmaker in this case. However, Bowen’s state-
ment to Meyer can be understood as an admission that the
decisionmakers at LLCC were inclined to hire a candidate
from a racial minority. Bowen’s comments, considered in
light of Dr. Howard’s reference— made in a memorandum
to the Board—to “the Board’s concern with minority
No. 04-3711 17
representation among faculty and staff at the college,” R.18,
Tab D at 13, further strengthen the inference that the Board
discriminated against Ms. Rudin based on her race. As well,
Tepatti’s statements, made in her April 22 memo to Dr.
Howard, regarding “the college’s focus on minority hiring,”
R.18, Tab G at 9, further support the inference that the
decisionmakers at LLCC hired Hudson because of his race
and, in addition, did not hire Ms. Rudin because of her race.
c.
We believe that the fact that LLCC did not follow its
own internal procedures with respect to the hiring proc-
ess for the position also points to a discriminatory motiva-
tion. According to LLCC’s Guidelines, the Screening
Committee was supposed to “meet[] and thoroughly
discuss[] the strengths and weaknesses of each candidate.”
R.22, Tab 18 at 3. The parties appear to agree that no such
meeting took place; although one was scheduled, for some
reason the meeting was attended by only one member and
the chair, Bowen. Consequently, the views of the Committee
members were not aired as anticipated by the Guidelines.
The Committee also was expected to develop a “ranking
of the candidates and to identify those candidates who
are acceptable and non-acceptable.” Id. It clearly was
anticipated by LLCC’s policies that the Committee Chair
would “[t]ak[e] into consideration the input presented
by the individual committee members” before identifying
his candidate of choice and recommending that person to
his superiors. Id. The parties have presented conflicting
assertions regarding whether Bowen was aware of the
Committee’s rankings before he proceeded with making his
recommendation to his supervisor, Tepatti. We pause here
18 No. 04-3711
to point out that, if Bowen proceeded to recommend
Hudson to Tepatti without consulting with the Committee,
that also suggests that a departure from LLCC’s stated
policies occurred in this case. After all, the Guidelines direct
that “[t]he summary of results of the committee delibera-
tions should be attached to [the Committee Chair’s] recom-
mendation.” Id.At oral argument, LLCC submitted that it was difficult for
Bowen to deal with the Screening Committee, whose
activities had become contentious. However, we believe that
is a question for the jury. The fact remains that LLCC
departed from its stated policies. This leaves us with
the distinct impression that the Committee’s role, while
ultimately consultatory, was entirely abandoned in the
hiring process.6 This systematic abandonment of its hir-
ing policies is circumstantial evidence of discrimination.
6
LLCC itself has asserted that the Committee’s rankings
were not before the Board, the ultimate decisionmaker in this
case.
No. 04-3711 19
d.
We also believe that the fact that LLCC’s justification
for the hiring decision has been inconsistent is circumstan-
tial evidence of discrimination. As we have described above,
to Ms. Rudin, Bowen justified his decision to recommend
Hudson by explaining that he was under significant admin-
istrative pressure. To Meyer, he justified his decision on the
ground that he was under administrative pressure to hire a
racial minority. Later, Tepatti’s memo to Dr. Howard
justified Bowen’s recommendation of Hudson on the
grounds that Hudson was “qualified and a very successful
LLCC adjunct with excellent student evaluations” as well as
on the ground that hiring Hudson fulfilled “the college’s
focus on minority hiring.” R.18, Tab G at 9-10. Shortly after
that memo was written, Dr. Howard himself explained to
the Board that Hudson represented both “an opportunity to
enhance [LLCC’s] faculty” and “the opportunity to address
the Board’s concern with minority representation among
faculty.” R.18, Tab D at 13. On this appeal, however, LLCC
contends simply that Hudson was the best qualified candi-
date for the position. This shifting justification, combined
with the other circumstantial evidence of race discrimina-
tion which we have just discussed, provides sufficient
circumstantial evidence that LLCC discriminated against
Ms. Rudin in its hiring decision because of her race and
warrants submission of the issue to a trier of fact.
3.
As we have just described, Ms. Rudin has put forth
substantial circumstantial evidence that LLCC had a
discriminatory intent in making its hiring decision for the
position. We conclude that the above evidence is sufficient
20 No. 04-3711
to create a triable issue as to whether LLCC’s hiring of
Hudson and its failure to hire Ms. Rudin were motivated by
discrimination.
C. Sex Discrimination
Before the district court, Ms. Rudin also alleged that LLCC
violated Title VII by discriminating against her based on her
sex. LLCC conceded that Ms. Rudin had established a prima
facie case of sex discrimination according to the indirect,
burden-shifting method of proof. See McDonnell Douglas
Corp., 411 U.S. 792. However, LLCC argued, and the district
court agreed, that LLCC had put forth a legitimate, non-
discriminatory reason for its decision which Ms. Rudin had
failed to rebut. Therefore, the district court granted sum-
mary judgment for LLCC on Ms. Rudin’s sex discrimination
claim.
Before this court, LLCC again concedes that Ms. Rudin
has established a prima facie indirect case of sex discrimina-
tion. In order to make a prima facie indirect case of sex
discrimination, a Title VII plaintiff must establish that
she: “1) is . . . a female; 2) applied for, and was qualified for,
an open position; 3) was rejected; and 4) the employer filled
the position with a person not in the plaintiff’s protected
class, or the position remained open.” Mills v. Health Care
Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999). Once the
plaintiff has met her burden to establish the prima facie
case, “a presumption of discrimination arises, and the
employer must articulate a legitimate and non-discrimina-
tory reason for the employment action” in question. Moser
v. Indiana Dep’t of Corr., 406 F.3d 895, 900 (7th Cir. 2005). If
the employer does articulate such a reason, then “the
plaintiff must show by a preponderance of the evidence that
No. 04-3711 21
the employer’s proffered reasons were merely a pretext for
discrimination.” Id. at 900-01. Throughout this burden-
shifting, the ultimate burden of persuasion remains at all
times with the plaintiff. Id. at 901.
1.
We first shall consider whether LLCC has proffered a
legitimate, non-discriminatory reason for its hiring decision.
LLCC claims that Hudson was hired because he was the
most qualified candidate for the position. At this stage, the
employer is not required to “prove that it was actually
motivated by the proffered reason. Rather, an employer
need only produce admissible evidence which would allow
the trier of fact rationally to conclude that the employment
decision had not been motivated by discriminatory ani-
mus.” Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997,
1001 (7th Cir. 2000) (internal quotation omitted).
LLCC points to numerous pieces of evidence in the record
which it claims provide support for its proffered reason. For
instance, it cites Bowen’s memorandum of April 8, 2002, in
which he recommended Hudson for the position. In the
memo, Bowen informed Tepatti that, after a “highly
competitive” interview process, he had concluded that
Hudson should be hired for the position due to, among
other considerations, his “[e]xcellent student evaluations,”
his “[t]wo master’s degrees” and the fact that Bowen
perceived that Hudson was “working on [his] PhD.” R.18,
Tab E at 11. Among other evidence supporting its justifica-
tion for the hiring decision, LLCC also cites Tepatti’s two
memoranda written for Dr. Howard. Tepatti’s memoran-
dum of April 29, 2002, which the Board had before it when
it decided to hire Hudson, states that Hudson is “qualified
22 No. 04-3711
and a very successful LLCC adjunct with excellent student
evaluations.” R.18, Tab D at 5. As well, the April 29 memo-
randum notes that Hudson “possesses two masters’ [sic]
degrees and is a dissertation short of getting his doctorate.”
Id.Based on the evidence cited by LLCC, we must conclude
that it has proffered a legitimate, non-discriminatory reason
for its hiring decision and supported the reason with
admissible evidence.
2.
We next turn to the question of whether Ms. Rudin can
show, by a preponderance of the evidence, that LLCC’s
proffered reason is pretext for sex discrimination.7 Because it
is a subject of debate between the parties, we first shall
review the showing that is required of a plaintiff with
respect to pretext at the summary judgment stage of a Title
7
In her submissions to this court on appeal, Ms. Rudin barely
mentions her sex discrimination claim in the context of her
arguments on pretext. Usually, this would be grounds for holding
that the argument is waived. See Kramer v. Banc of America Sec.,
LLC, 355 F.3d 961, 964 n.1 (7th Cir.) (“The absence of any support-
ing authority or development of an argument constitutes a
waiver on appeal.”), cert. denied, 124 S. Ct. 2876 (2004). However,
we believe that the paucity of references to her sex discrimina-
tion claim is due to the posture in which the present case reached
us. The district court dealt with both the race and sex discrimina-
tion claims by way of the McDonnell Douglas burden-shifting
method; therefore, both parties framed their arguments before
this court on pretext in general terms most likely intended to
apply both to the race discrimination claim and to the sex
discrimination claim.
No. 04-3711 23
VII case.
a.
The parties agree that Ms. Rudin must show that there
is genuine issue of material fact as to whether LLCC hon-
estly believed its stated justification for hiring Hud-
son. However, they dispute whether she also is required
at the summary judgment stage to show that LLCC had
a discriminatory animus based on sex. The answer is that
“at summary judgment the plaintiff is not required to
establish pretext and provide evidence of a discriminatory
motive by the defendant . . . . This level of proof is only
required when a plaintiff’s case is submitted to a finder
of fact.” Mills, 171 F.3d at 458.
On the issue of proving pretext, the Supreme Court has
stated that “[t]he factfinder’s disbelief of the reasons put
forward by the defendant (particularly if disbelief is ac-
companied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to
show intentional discrimination.” St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993) (emphasis added). We
understand that language to mean that, “once the employee
has cast doubt upon the employer’s proffered reasons for
the termination, the issue of whether the employer discrimi-
nated against the plaintiff is to be determined by the
jury—not the court.” Weisbrot v. Med. Coll. of Wisconsin, 79
F.3d 677, 681-82 (7th Cir. 1996). Therefore, we have held
that, “in order to survive a motion for summary judgment,
an employee need only ‘produce evidence from which a
rational factfinder could infer that the company lied about
24 No. 04-3711
its proffered reasons for [her] dismissal.’ ” 8 Id. at 682(quoting Courtney v. Biosound, Inc., 42 F.3d 414, 424 n.4 (7th
Cir. 1994)). In other words, if there is a question of fact as to
the believability of an employer’s purported reasons for an
employment decision then, “even if the evidence presented
by [the plaintiff] does not compel the conclusion that [her
employer] discriminated against [her] when making its . . .
decision, at a bare minimum it suffices to defeat [the
employer’s] summary judgment motion.” Biosound, 42 F.3d
at 423.9
b.
8
Phrased differently, “[s]ummary judgment is proper where no
rational factfinder could believe that the employer lied about
its proffered reasons for” the hiring decision in question. Weisbrot
v. Med. Coll. of Wisconsin, 79 F.3d 677, 682 (7th Cir. 1996).
9
It is worth pointing out that, at trial, the ultimate burden of
persuasion on the question of sex discrimination remains at all
times with Ms. Rudin. To prevail at trial on her sex discrimina-
tion claim, Ms. Rudin will have to persuade the jury that the
real reason LLCC failed to hire her was because it discriminated
against her on account of sex. See Perdomo v. Browner, 67 F.3d 140,
145 (7th Cir. 1995) (“Although an inference of discrimination may
be drawn from falsely stated reasons, such an inference is not
compelled. . . . [T]he real reasons behind an employer’s action
may be shameful or foolish, but unrelated to . . . discrimination,
in which event there is no liability.”). Thus, as we have noted
before, “the plaintiff might be well advised to present additional
evidence of [sex] discrimination, because the factfinder is not
required to find in her favor simply because she establishes a
prima facie case and shows that the employer’s proffered reasons
are false.” Anderson v. Baxter Health Care Corp., 13 F.3d 1120, 1124
(7th Cir. 1994) (emphasis in original).
No. 04-3711 25
As evidence that LLCC lied about its reason for hiring
Hudson, Ms. Rudin contends that: (1) Bowen’s justifica-
tion for not hiring Ms. Rudin has changed over time; (2)
Bowen failed to follow LLCC’s hiring policies; (3) Ms. Rudin
was more qualified than Hudson; (4) race was a factor in the
decision to hire Hudson; and (5) Bowen was under adminis-
trative pressure to hire a minority candidate.
As we already have noted, Bowen’s justification for hiring
Hudson instead of Ms. Rudin has changed over time. This
court’s decisions make it clear that “[o]ne can reasonably
infer pretext from an employer’s shifting or inconsistent
explanations for the challenged employment decision.”
Applebaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573,
579 (7th Cir. 2003); see also Schuster v. Lucent Techs., Inc., 327
F.3d 569, 577 (7th Cir. 2003) (“Shifting and inconsistent
explanations can provide a basis for a finding of pretext.”).
As further evidence of pretext, Ms. Rudin points to the
fact that Bowen failed to follow LLCC’s hiring policies.
Specifically, she submits that Bowen failed adequately
to take into consideration the recommendations of the
Screening Committee and that he failed to attach a summary
of the Committee’s deliberations to his ultimate recommen-
dation of Hudson. This court has held in the past that an
employer’s failure to follow its own internal employment
procedures can constitute evidence of pretext. See Giacoletto
v. Amax Zinc Co., Inc., 954 F.2d 424, 427 (7th Cir. 1992). As
we have discussed above, the record supports the conclu-
sion that the hiring process in this case departed from the
process contemplated by LLCC’s own Guidelines.
Ms. Rudin also claims that pretext is shown from the fact
that she was more qualified than Hudson. Therefore, she
contends, “the notion that Mr. Hudson was the more
qualified is simply not true.” Appellant’s Br. at 40. How-
26 No. 04-3711
ever, “the pretext inquiry focuses on whether the employer’s
stated reason was honest, not whether it was accurate.”
Helland v. South Bend Cmty. Sch. Corp., 93 F.3d 327, 330 (7th
Cir. 1996). Thus, even if Ms. Rudin could prove she is more
qualified than Hudson (a question we need not take up),10
that fact would not show pretext as long as LLCC believed
Hudson to have the superior qualifications. We do not
believe that Ms. Rudin’s qualifications, whether or not they
were superior to Hudson’s, are probative of the truthfulness
of LLCC’s stated justification for hiring Hudson.
As her final evidence of pretext, Ms. Rudin also contends
that race was a factor in the decision to hire Hudson and
that Bowen was under administrative pressure to hire a
minority candidate. To the extent that it is untruthful for
LLCC to deny that it considered Hudson’s race, in the
face of the clear evidence that LLCC’s hiring process
gave a strategic advantage to racial minorities, these
grounds provide some evidence of pretext. See, e.g., Perdomo
v. Browner, 67 F.3d 140, 145 (7th Cir. 1995) (“Because a fact-
finder may infer intentional discrimination from an em-
ployer’s untruthfulness, evidence that calls truthfulness into
question precludes summary judgment.”). However, these
two closely-related contentions are more properly consid-
ered probative of the question of whether LLCC discrimi-
nated against Ms. Rudin based on race than whether LLCC’s
stated justification is a mere pretext for sex discrimination.
At trial, evidence of pressure to hire or preference for hiring
a racial minority would not support a reasonable inference
10
We note, however, that “[a]n employee’s self-serving state-
ments about [her] ability . . . are insufficient to contradict an
employer’s negative assessment of that ability.” Gustovich v.
AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992).
No. 04-3711 27
of sex discrimination. See Millbrook v. IBP, Inc., 280 F.3d
1169, 1174 (7th Cir.) (holding that question at trial is
whether there is sufficient evidence to support a finding that
the employer discriminated against the plaintiff based on
the protected ground), cert. denied, 537 U.S. 884 (2002).
Viewing all facts in the light most favorable to Ms. Rudin
and drawing all inferences in her favor, we conclude that a
rational jury could indeed believe that LLCC was
not truthful about its proffered reasons for hiring Hud-
son. Therefore, we reverse the district court’s grant of
summary judgment on Ms. Rudin’s sex discrimination
claim.
Conclusion
For the foregoing reasons, the judgment of the district
court is reversed, and the case is remanded for proceed-
ings consistent with this opinion.
REVERSED and REMANDED
28 No. 04-3711
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-25-05