Mills v. Health Care Service Corp.

• Decision Date: 17 March 1999
• Docket Number: No. 98-1840,98-1840
• Citation: 171 F.3d 450
• Parties: 75 Empl. Prac. Dec. P 45,799 Douglas M. MILLS, Plaintiff-Appellant, v. HEALTH CARE SERVICE CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 450

171 F.3d 450

75 Empl. Prac. Dec. P 45,799

Douglas M. MILLS, Plaintiff-Appellant, v. HEALTH CARE SERVICE CORPORATION, Defendant-Appellee.

No. 98-1840.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 1998.

Decided March 17, 1999.

James P. Baker (argued), Springfield, IL, for Plaintiff-Appellant.

John E. Thies (argued), Webber & Thies, Urbana, IL, for Defendant-Appellee.

Before COFFEY, FLAUM and EVANS, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiff Douglas M. Mills (Mills) appeals the district court's grant of summary judgment to Health Care Service Corporation (HCSC) in his Title VII gender discrimination suit. The district court found that Mills was unable to prove that HCSC's proffered reasons for failing to promote him were pretextual. For the reasons set out below, we affirm the trial court's decision.

BACKGROUND

We give a brief outline of the facts here, and will discuss them in greater detail where relevant to our analysis. HCSC is a health care claims processing company with offices throughout Illinois. The plaintiff worked in a variety of divisions and positions at HCSC's Quincy office starting in 1988. In general, Mills received favorable work reviews.

In 1995, a co-manager of the Quincy office, Sandy Frillman resigned, leaving Linda Amburn as the office's sole manager. In response to Frillman's departure, the company created a new assistant manager position, which Amburn was responsible for filling. When the company posted the minimum requirements for the position, four individuals applied for the job: Teri Provine, Kathy Cluver, Darlene Butler, and the plaintiff. After Butler and the plaintiff were interviewed, Amburn offered the position to Butler. The plaintiff, citing his own qualifications, which he alleged were better than Butler's, sued, claiming gender discrimination. The district court

granted summary judgment to the defendant, bringing us to this appeal.

ANALYSIS

We review the trial court's decision de novo, drawing all inferences in the light most favorable to the non-moving party--here, the plaintiff. Biolchini v. General Electric Co., 167 F.3d 1151, 1153 (7th Cir. 1999). Only if there are no genuine issues of material fact in dispute is summary judgment appropriate. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In employment discrimination cases, we apply this standard with "added rigor" before granting summary judgment. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993).

A.

Plaintiffs in employment discrimination cases can avert summary judgment in one of two ways. First, they can present direct evidence showing discriminatory intent by the defendant or its agents. Troupe v. May Dept. Stores, 20 F.3d 734, 736 (7th Cir.1994). A direct evidence assertion must be supported by allegations which, "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Eiland v. Trinity Hospital, 150 F.3d 747, 751 (7th Cir.1998) (citations omitted).

Second, plaintiffs may offer indirect evidence that they have been discriminated against. This takes the form of the familiar three part burden shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The McDonnell Douglas test requires that a plaintiff establish a prima facie case, satisfied by showing that the plaintiff: 1) is a member of a protected minority class or 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. ¹ EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145, 148 (7th Cir.1996). If the plaintiff establishes these elements, the burden shifts to the defendant to articulate legitimate, nondiscriminatory reasons for its employment action. Should the defendant meet its burden, the plaintiff then must cast doubt on whether these reasons are credible, or whether they are merely pretext. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994).

B.

1.

Initially, we must determine whether this plaintiff meets the requirements of the prima facie test. Because Douglas Mills is a white male, he clearly does not satisfy prong one. Indeed, if strictly applied, the prima facie test would eliminate all reverse discrimination suits. However, the test is not so inflexible--it is well settled law that the protections of Title VII are not limited to members of historically discriminated-against groups. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 49 L.Ed.2d What is less settled is how to apply the traditional prima facie test to this situation. One option is to simply drop the first prong. On the other hand, at least two circuits use a different standard in "reverse discrimination" cases. See Taken v. Oklahoma Corp. Comm'n, 125 F.3d 1366, 1369 (10th Cir.1997); Harding v. Gray, 9 F.3d 150, 152-53 (D.C.Cir.1993). ² Those cases operate from the premise that "invidious discrimination against white [men] is relatively uncommon in our society, and so there is nothing inherently suspicious in an employer's decision to promote a qualified minority [or female] applicant instead of a qualified white [male] applicant." Harding, 9 F.3d at 153. This approach has also been justified because the presumption that arises once the McDonnell Douglas prima facie test is met--that unless otherwise explained discrimination is more likely than not the reason for the challenged decision--is "not necessarily justified when the plaintiff is a member of an historically favored group." Notari v. Denver Water Dept., 971 F.2d 585, 589 (10th Cir.1992).

493 (1976); Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 863 (7th Cir.1997); Hill v. Burrell Communications Grp., Inc., 67 F.3d 665, 667 (7th Cir.1995).

Thus, these circuits have modified the prima facie test and added various substitutes (referred to as "background circumstances") for the burden imposed on minority or women plaintiffs to show that they are members of a protected class. Harding, 9 F.3d at 153. The contours of what constitutes a background circumstance are not precise. In Harding, the D.C. Circuit enumerated two categories of circumstances: "evidence indicating that the particular employer at issue has some reason or inclination to discriminate invidiously against whites [or men]," and "evidence indicating that there is something 'fishy' about the facts of the case at hand." Id. (citations omitted). Plaintiffs in that circuit have shown something was 'fishy' when they presented evidence of schemes to fix performance ratings to their detriment, that the hiring system seemed rigged against them because it departed from the usual procedures in an "unprecedented fashion," or that they were passed over despite superior qualifications. Id. at 154 (citations omitted). Another court, applying a variant of the McDonnell Douglas test in a reverse discrimination Bivens action, held that background circumstances could include situations in which: the person ultimately hired was clearly less qualified than the plaintiff, the hiring authority expressed intense interest in hiring a woman, and there was a pattern of hiring women in the past. Duffy v. Wolle, 123 F.3d 1026, 1036-37 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998). ³ Additionally, in Reynolds v. School Dist. No. 1, Denver, Colorado, the plaintiff successfully showed background circumstances where she was the only white employee in the department and nearly all of the decision makers were Hispanic. 69 F.3d 1523, 1534 (10th Cir.1995). All of these background circumstances "support an inference that the defendant is one of those unusual employers who discriminates against the majority," thus shifting the burden to the defendant to articulate a legitimate reason for its hiring decision. Taken v. Oklahoma Corp. Comm'n, 125 F.3d 1366, 1369.

These approaches are not meant to foreclose pursuit of legitimate Title VII claims by white men. Harding, 9 F.3d at 154 (background circumstances not an additional hurdle, but rather a substitute for minority plaintiff's burden under first prong of McDonnell Douglas test). Nothing in the modified prima facie formulations alters the fact that a majority plaintiff can always use direct evidence of prohibited discrimination to defeat a summary judgment motion. Id. Moreover, if a plaintiff fails to make a prima facie case under the modified test, he can demonstrate illegal discrimination by any other "indirect evidence sufficient to support a reasonable probability ... that but for [his] status [as a white male] the challenged employment decision" would not have occurred. Taken, 125 F.3d at 1369, quoting Notari, 971 F.2d at 590 (regardless of race, an employee who is the victim of intentional discrimination "who adduces sufficient evidence of that discrimination should be permitted to proceed beyond the prima facie stage of litigation"); see also Duffy, 123 F.3d at 1036 ("[J]ust because a reverse discrimination plaintiff cannot show background circumstances ... does not inexorably mean that his employer has not intentionally discriminated against him," and if that employee has evidence of discrimination he should be permitted to shift the burden to the defendant to prove a legitimate reason for the challenged employment decision.).

The defendant, HCSC, asks us to adopt one of these modified forms of the prima facie test. This court has never actually decided whether doing so is appropriate. Some of our opinions have noted the need for modifications to the McDonnell Douglas test. Kirk v. Board of Educ. of Bremen Community H.S. Dist., No. 228, 811 F.2d 347, 354 n. 10 (7th Cir.1987) (noting...