Strong, Lawerence W. v. Paulson, Henry M.

NONPRECEDENTIAL DISPOSITION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 September 26, 2007*
Decided October 1, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 07-1401
LAWRENCE STRONG, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 C 4971
HENRY M. PAULSON, JR.,
Secretary of the Treasury,** Robert W. Gettleman,
Defendant-Appellee. Judge.
ORDER
Lawrence Strong sued the Secretary of the Treasury, alleging that the Office
of the Comptroller of the Currency (OCC) discriminated against him on the basis of
his race (African American) and perceived disability (right-side weakness and limp)
when it failed to offer him a position as a bank examiner. The district court granted
summary judgment to the defendant, and Strong appeals. We affirm.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
**
Henry M. Paulson, Jr., the current Secretary of the Treasury, has been
substituted for his predecessor, John W. Snow. See Fed. R. App. P. 43(c).
No. 07-1401 Page 2
Except as noted, the facts are undisputed. In August 2000 Strong applied for
two positions with the OCC as a bank examiner. As part of his application, Strong
submitted a resume and a self-assessment. Strong gave himself very high marks on
the self-assessment, and the OCC’s evidence showed that on the basis of that score,
it selected Strong to advance to the next step in the hiring process, which was a
communications test.
Upon arriving at the test site, Strong first spoke with Juanita Southern, the
Regional Human Resources Manager. Southern noticed that Strong was slurring
his speech and gave him a “strange” look. In response, Strong told Southern that he
had suffered a stroke. Southern then told the examiners of the communications test
that Strong was “disabled in some manner.”
The communications test included both oral and written components. Strong
testified that during the test, he “was asked very definitely by one of the
interviewers named Jennifer Olson [Olds-Morgan] that [sic] what is wrong with my
arm . . . which I answered. And she replied that, ‘Long [sic] as it doesn’t affect your
mental coherency.’” After the test, the examiners noted that Strong’s responses
were unorganized and repetitive and that his “comments lacked substance.”
Nevertheless, the examiners advanced Strong to the final interview because of the
impressive work experience listed on his resume.
Strong was then interviewed by Donelle Ward and Paul Ginger. The
interview consisted of questions selected from a pre-printed form. Ward noted
during the interview that Strong’s responses lacked substance, were not responsive,
and were rambling, unfocused, repetitious, and generally unprofessional. Ward
testified that Strong’s responses during the interview appeared inconsistent with
the experience he listed on his resume; she therefore made a note to herself to check
Strong’s references. After the interview, Ward, with Ginger’s concurrence,
recommended to the hiring committee that Strong not be hired.
After exhausting his administrative remedies, Strong filed suit against the
OCC. Count I alleged race discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Count II alleged disability discrimination in
violation of the Rehabilitation Act, 29 U.S.C. § 794(a). Count III alleged that the
OCC improperly inquired about his perceived disability in violation of the
Rehabilitation Act, 29 U.S.C. § 794(d) and 42 U.S.C. § 12112(d)(2)(A).
During discovery the OCC uncovered evidence that Strong had lied on his
resume about his previous work experience. Strong claimed on his resume that he
had worked for more than two years as a “Manager - Commercial Real Estate” for
the Federal Deposit Insurance Corporation (FDIC) where he was responsible for
“mortgage credit underwriting,” “under[writing] mortgage portfolios,” and “risk
No. 07-1401 Page 3
management.” Strong, however, had worked at the FDIC for only about eight
months, and his former supervisor characterized Strong’s statement of duties on his
resume as a “blatant and complete lie.” Strong also listed on his resume
employment as a “residential lending manager” at Banco Popular when in fact he
was a low-level mortgage underwriter.
The OCC then moved for summary judgment, to which Strong submitted
little evidence in opposition. The most significant piece of evidence, which the
district court failed to note, was Strong’s own deposition testimony that Olds-
Morgan had asked him what was wrong with his arm. The district court granted
the OCC’s motion for summary judgment, holding that Strong failed to produce
evidence that the OCC’s proffered non-discriminatory reason for not hiring
him–namely, his exceptionally poor responses to questions during the
interview–was pretextual.
Strong appeals from the district court’s grant of summary judgment. We
review de novo, construing all facts and drawing all reasonable inferences in favor
of Strong as the non-moving party. See Cardoso v. Robert Bosch Corp., 427 F.3d
429, 432 (7th Cir. 2005).
Because Strong does not attempt to prove discrimination through the direct
method, he must proceed by the indirect method set out in McDonnell-Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under that method, if the plaintiff
establishes a prima facie case of discrimination, a permissive inference of
discrimination arises and the burden shifts to the defendant to articulate a
legitimate non-discriminatory reason for the employment decision. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). If the defendant
succeeds, the burden shifts back to the plaintiff to prove that the proffered reason is
a pretext for discrimination. Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417
(7th Cir. 2006). This framework applies to both the Title VII and the Rehabilitation
Act claims. Perez v. Illinois, 488 F.3d 773, 776 (7th Cir. 2007) (Title VII); Cassimy
v. Bd. of Educ. of Rockford Pub. Schs., Dist. # 205, 461 F.3d 932, 938 (7th Cir. 2006)
(Rehabilitation Act).
The OCC does not challenge Strong’s prima facie case, instead relying on its
proffered reasons for not hiring him, namely, that his answers to questions during
the interview lacked substance, were rambling and off-topic to the degree that one
of the interviewers made a note to check Strong’s references, and that his answers
were non-responsive, unfocused and delivered in an unprofessional manner. In
response, Strong argues (1) that the questions he was asked during the interview
were unfair because they went beyond what was stated in a letter he received
outlining the interview process; (2) that the head of human resources blocked his
hiring for reasons that are not clear; (3) that evidence of the false statements on his
No. 07-1401 Page 4
resume were manipulated by OCC’s counsel; (4) that the interview was not
objective; and (5) that Ward gave inconsistent reasons for her decision to
recommend not hiring him. The first three of these arguments were not raised in
the district court, and are therefore waived on appeal. Baptist v. City of Kankakee,
481 F.3d 485, 492 (7th Cir. 2007). The remaining two arguments are meritless.
First, we have held that nothing in Title VII requires a job interview to be
scored against objective criteria. Millbrook v. IBP, Inc., 280 F.3d 1169, 1176 (7th
Cir. 2002). Subjective analysis of the varying traits of each applicant is entirely
appropriate. Blise v. Antaramian, 409 F.3d 861, 868 (7th Cir. 2005).
Second, we agree with the district court that Ward’s statements explaining
why she did not recommend hiring Strong were consistent. Ward first stated that
Strong had difficulty formulating coherent answers and that those answers were
rambling and repetitive. Later she said that Strong’s answers to questions were
unresponsive and unfocused, and still later Ward noted that Strong made confusing
transitions, used words inappropriately, and jumped off topic. Because there is
nothing inconsistent in Ward’s statements, Strong has failed to prove that the
OCC’s reasons for not hiring him were pretextual. We therefore affirm the district
court’s grant of summary judgment on Counts I and II.
In Count III Strong alleges that the OCC violated the Rehabilitation Act by
asking improper questions about whether and to what extent he was disabled. The
Rehabilitation Act incorporates the standards of the Americans with Disabilities
Act of 1990 (ADA) to determine whether a violation of the statute has occurred.
29 U.S.C. § 794(d). The ADA prohibits covered prospective employers from asking
about the existence or severity of an applicant’s disability where the inquiry is not
related to the applicant’s ability to perform the job. See 42 U.S.C. § 12112(d)(2).
Here, Strong testified that during the communications test, Olds-Morgan asked him
what was wrong with his arm, and upon hearing Strong’s response, stated “Long
[sic] as it doesn’t affect your mental coherency.”
Even assuming that Olds-Morgan’s inquiry was not covered by the exception
for job-related questions, the district court’s grant of summary judgment was
proper. To prove a violation under 42 U.S.C. § 12112(d)(2), a plaintiff must
demonstrate that he suffered some tangible injury-in-fact. See O’Neal v. City of
New Albany, 293 F.3d 998, 1007 (7th Cir. 2002) (collecting authority); see also
Armstrong v. Turner Indus., Inc., 141 F.3d 554, 561 (5th Cir. 1998). The injury here
is the OCC’s failure to hire Strong. We have concluded, however, that the OCC’s
failure to hire Strong was not discriminatory. Therefore, the district court correctly
granted summary judgment on Count III.
AFFIRMED.