Michael Whitlow v. Bradley University ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 12, 2018 *
Decided May 18, 2018
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-3246
MICHAEL SHAWN WHITLOW, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 16-CV-1223
BRADLEY UNIVERSITY, Joe Billy McDade
Defendant-Appellee. Judge.
ORDER
Michael Whitlow sued his employer, Bradley University, for employment
discrimination. In this appeal, he challenges the denial of his post-judgment motion
asserting that the district judge who presided over his suit had such close ties to the
university that he should have recused himself under 28 U.S.C. § 455(a). We find that
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-3246 Page 2
the judge did not abuse his discretion in declining to disqualify himself after entry of
judgment, so we affirm.
Whitlow’s claims arise out of a number of difficult interactions with a female
supervisor, Sandra Bury. Whitlow, a senior network analyst at Bradley University,
alleged that Bury harassed him by “utter[ing] defamatory statements” to other
employees about Whitlow’s second job as a part-time police officer, scolding him, and
acting with hostility toward him. He said that when he complained about Bury’s
behavior to the university’s human resources department, he received no help. Because
of his complaints, Whitlow also claimed, Bury disciplined him, resulting in a negative
annual review and a lower annual raise. Whitlow sued the university for sex
discrimination, a hostile work environment, and retaliation under Title VII of the Civil
Rights Act of 1964.
District Judge McDade dismissed Whitlow’s complaint, concluding that Whitlow
had not alleged facts to support his claims. Instead, Whitlow had alleged only a
“tenuous and contentious relationship” with Bury that Title VII could not remedy.
Whitlow moved for relief from the judgment under Federal Rule of Civil
Procedure 60(b)(6), contending that he had recently learned that Judge McDade has ties
to Bradley University that should have disqualified him from hearing the case under
28 U.S.C. § 455(a), which calls for disqualification if a judge’s “impartiality might
reasonably be questioned.” Whitlow asserted that the judge (1) is an alumnus of
Bradley University, a former basketball star, and has been honored by the university as
an alumnus who has brought credit to the university, (2) has spoken affectionately of
Bradley at events and to the press, including describing his “love affair” with the
school, (3) spoke at Bradley’s commencement in 2013, (4) has networked with people
connected to the university, (5) recused himself from three cases involving Bradley
University in 1999, 2000, and 2010, and (6) is a former member of the university’s board
of trustees. Judge McDade denied the motion, concluding that § 455(a) did not
disqualify him based on his “minimal alumni contacts,” and that there was “no
reasonable question” about his “ability to be impartial in this case.”
On appeal, Whitlow again highlights examples of the judge’s relationship with
the university that, in his view, compelled disqualification under § 455(a). But Whitlow
does not explain why he did not request disqualification before entry of judgment, and
we decline to hold that a judge must vacate a judgment in order to disqualify himself
retroactively absent “exceptional circumstances.” See FED. R. CIV. P 60(b)(6); Liljeberg
No. 17-3246 Page 3
v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988); Williamson v. Indiana Univ.,
345 F.3d 459, 464 (7th Cir. 2003).
Judge McDade’s contacts with Bradley University do not persuade us that
“exceptional circumstances” required his disqualification from the case after he had
already entered judgment. See Williamson, 345 F.3d at 464. Whitlow offered evidence
that Judge McDade is an active member of the university’s alumni community, but
alumni contacts or positive comments about a school, without more, do not disqualify a
judge. See Williamson, 345 F.3d at 464–65; Roe v. St. Louis Univ., 746 F.3d 874, 886
(8th Cir. 2014). The fact that Judge McDade has disqualified himself from several other
cases involving Bradley University signals only his judgment that circumstances in those
cases warranted his disqualification. Those past decisions do not mandate
disqualification in all future cases. Finally, we cannot conclude that the judge should
have reopened the judgment to disqualify himself based on his past service on Bradley
University’s board of trustees—service that, according to his biography, ended more
than a decade ago in 2002. Joe B. McDade, ALMANAC OF THE FEDERAL JUDICIARY, 2018 WL
1429409, *1 (CCH 2018). By statute, he would have been required to disqualify himself
during his service on the Board, see 28 U.S.C. § 455(b)(1)(5)(i), and as Judge McDade
recognizes, particular circumstances in particular cases involving Bradley University
may make disqualification appropriate under § 455. In this case, however, the judge has
no apparent or alleged connection to the dispute requiring disqualification, especially
after judgment. The judgment of the district court is
AFFIRMED.