Gore, John S. v. Indiana University ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2439
JOHN S. GORE,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Indiana, South Bend Division.
No. 3:02-CV-929—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED JANUARY 3, 2005—DECIDED JULY 25, 2005
____________
Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
WOOD, Circuit Judge. When there are three job openings
and a man fills the first position, it is an uphill battle for
another man to prove that his gender is the reason why he
was not selected. That is the task that John Gore faces in
this case. Although Gore is convinced that only invidious
reasons could explain Indiana University’s refusal to hire
him as a lecturer, he needs more than his own conviction.
The district court granted summary judgment for the
University on Gore’s claim of gender bias, and we agree
2 No. 04-2439
that he did not demonstrate any genuine issue of material
fact that would require a trial. We therefore affirm.
I
Gore began teaching entry-level communications courses
at the South Bend campus of Indiana University in 1998. In
September 2001, the University’s Communication Arts Area
posted openings for communications lecturers. Gore, who
had been working under a series of one-year contracts as an
adjunct lecturer, applied for one of these positions, seeking,
essentially, to keep his current job. In keeping with its
standard policy, the University created a committee to
review incoming applications. The committee consisted of
three men and two women. After reviewing the candidates,
the committee submitted to the University’s Affirmative
Action Officer (AAO) a list of six potential interviewees. The
list included four external candidates and two internal
candidates, one of whom was Gore. In the letter to the AAO,
the committee noted that it might need the internal
candidates to remain as “visiting” lecturers if more posi-
tions became available. “If they [were not] interviewed,” the
Committee wrote, “it could be an awkward situation.”
The AAO rejected this reason for including the internal
candidates on the list. Her reply to the committee stated:
“We are looking for the best candidates for one position—
the Communication Arts Lecturer position. The fact that
someone works at [the University] is not a valid reason for
wanting to include that person in the pool. . . . We ask that
you propose a list of the most qualified candidates [based]
upon objective job related criteria.” With this new directive,
the committee submitted three candidates to the AAO, a
man and two women. Gore was not on the list. After the
AAO approved this new set of candidates, the committee
interviewed all three and selected Alec Hosterman.
No. 04-2439 3
Hosterman, the only man interviewed, also happened to be
the other internal candidate from the committee’s original
interview list.
When a second lecturer position became available a few
months later, the committee returned to the broader pool of
candidates and selected Desrene Vernon. The hiring
committee chair explained in her deposition that the com-
mittee selected Vernon over Gore because Vernon had a
master’s degree in communications, the subject she would
be teaching. Gore had a master’s degree, but his was in
education leadership, not communications. The committee
offered the same rationale for hiring another woman in-
stead of Gore when a third position became available; she
had a master’s degree in communications, Gore did not.
Gore was upset that he had not been interviewed for any
of the three positions. After receiving a right-to-sue letter
from the Equal Employment Opportunity Commission, he
sued the University, alleging age and gender discrimina-
tion. The district court dismissed Gore’s age discrimination
claim on sovereign immunity grounds. Gore does not appeal
this ruling and rightly so. See Kimel v. Florida Bd. of
Regents, 528 U.S. 62, 73 (2000) (finding that the Age
Discrimination in Employment Act was not appropriate
legislation to enforce section five of the Fourteenth Amend-
ment and therefore did not abrogate the states’ sovereign
immunity).
The University moved for summary judgment on Gore’s
remaining sex discrimination claim at the close of discovery.
The district court granted the motion, precipitating this
appeal.
II
Title VII of the Civil Rights Act of 1964 provides that it
“shall be an unlawful employment practice for an employ-
4 No. 04-2439
er . . . to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s . . . sex.” 42
U.S.C. § 2000e-2(a)(1). To prevail on his sex discrimination
claim, Gore must either show direct evidence of discrimina-
tory motive or intent, or rely on the indirect burden-shifting
method outlined in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Gore relies solely on the latter option.
Under this approach, a plaintiff must present evidence
tending to show: (1) he is a member of a protected class; (2)
he applied for, and was qualified for, an open position; (3)
the employer rejected him for the position; and (4) the
employer filled the position with an individual outside of
the plaintiff’s protected class, or the position remained
vacant. See, e.g., Bennett v. Roberts, 295 F.3d 687, 694 (7th
Cir. 2002). If the plaintiff can establish these four elements,
the defendant has an opportunity to articulate a legitimate,
nondiscriminatory reason for its action. If the defendant
does so, the burden shifts back to the plaintiff and he must
offer evidence showing that the defendant’s excuse is
pretextual. Id. at 694-95.
The district court saw no need to engage in this back-and-
forth process, because Gore failed at the very first step of
the analysis. Even though Title VII’s prohibitions against
sex discrimination generally protect men as well as women,
see, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75 (1998) (men); Harris v. Forklift Sys., Inc., 510 U.S.
17 (1993) (women), the district court thought that Gore, in
the circumstances of this case, was not a member of a class
of employees protected by Title VII. We would put the point
a little differently: the conventional McDonnell Douglas
framework is not very helpful for so-called reverse-discrimi-
nation cases. Because it “is the unusual employer who
discriminates against majority employees,” Mills v. Health
Care Serv. Corp., 171 F.3d 450, 456-57 (7th Cir. 1999), a
No. 04-2439 5
male plaintiff alleging gender discrimination must show
something more than the fact that he is gendered. See, e.g.,
Katerinos v. U.S. Dep’t of Treasury, 368 F.3d 733, 736 (7th
Cir. 2004). This was what we meant in Phelan v. City of
Chicago, 347 F.3d 679, 684 (7th Cir. 2003), when we said
that in cases of reverse discrimination, “the first prong of
the McDonnell test cannot be used.” Rather, the plaintiff in
such cases “must show background circumstances that
demonstrate that a particular employer has reason or
inclination to discriminate invidiously against whites [or
men] or evidence that there is something ‘fishy’ about the
facts at hand.” Id. (internal quotation omitted).
Relying on Steinhauer v. DeGolier, 359 F.3d 481, 484 (7th
Cir. 2004), Gore argues that we have abandoned this added
reverse-discrimination requirement. That case, however,
was just one in a line of cases that illustrate the need for
flexibility in applying the indirect method of proving
discrimination. We noted that “[t]he first element is really
a non-issue because everyone is male or female.” Id. at 484.
Similarly, everyone can be identified racially. The objective
of the indirect method is to assess whether the plaintiff’s
race, or gender, or other protected characteristic, affected
the employment action in question. We see nothing in
Steinhauer that implies an overruling of the cases holding
that additional steps are needed before an inference of re-
verse-discrimination can be drawn. Nor is there any hint
that Steinhauer required reconsideration in Katerinos, a
case decided after Steinhauer in which we applied the
added reverse-discrimination burden. See 368 F.3d at 736.
Gore offers nothing to overcome this added burden. There
was nothing suspicious about the University’s decision not
to hire him. Gore himself admitted in his deposition that he
had no basis to claim that he was more qualified than the
candidates the University hired. A man appointed the
hiring committee, which, as we noted, had three men and
two women. Particularly because the University hired a
6 No. 04-2439
man before it hired the two women, it is hard even to
construct a reverse-discrimination story from these events.
Gore has not presented any evidence to suggest that the
University’s hiring process was unusual. He has offered no
proof, direct, indirect, or circumstantial, that could lead any
trier of fact to conclude that he was the victim of sex
discrimination. Without such evidence, his appeal must fail.
III
For these reasons, we AFFIRM the judgment of the district
court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-05