McQuillen v. Wisconsin Educ. Ass'n Council, 86-1885
| Decision Date | 16 October 1987 |
| Docket Number | No. 86-1885,86-1885 |
| Parties | 44 Fair Empl.Prac.Cas. 1566, 44 Empl. Prac. Dec. P 37,470, 56 USLW 2219, 42 Ed. Law Rep. 76 Gordon E. McQUILLEN, Plaintiff-Appellant, v. WISCONSIN EDUCATION ASSOCIATION COUNCIL, Donald E. Krahn, and Morris Andrews, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert J. Gingras, Fox, Fox, Schaefer & Gingras, S.C., Madison, Wis., for plaintiff-appellant.
Stephen G. Katz, Kelly, Huas & Katz, Madison, Wis., for defendants-appellees.
Before WOOD, COFFEY and MANION, Circuit Judges.
Plaintiff-Appellant, Gordon McQuillen, appeals the district court's judgment against him after trial on his hiring discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2. We affirm.
Defendant Wisconsin Education Association Council (WEAC) is a labor organization that represents public school district employees throughout Wisconsin. WEAC is affiliated with the National Education Association (NEA). Defendant Morris Andrews is WEAC's Executive Director. Defendant Donald Krahn is WEAC's Director of Legal Services.
Prior to 1974, WEAC exclusively retained outside counsel to handle its legal matters. Since that time, WEAC has hired staff attorneys with a view towards eliminating the need for outside counsel. Along with the staff attorneys, WEAC has also employed law clerks. These clerks have usually been students at the University of Wisconsin Law School. Some clerks, however, have been licensed attorneys. The staff attorneys at WEAC are represented by the United Staff Union ("the Union"). The law clerks, including the Attorneys-Clerks, are not represented by the Union.
Plaintiff, Gordon McQuillen, began working for WEAC as a student law clerk in November, 1978. In January of 1981, after graduating from law school, he was admitted to practice in Wisconsin. Thereafter he continued to work with WEAC with the title of Attorney-Clerk.
In the summer of 1982, WEAC's legal department consisted of four staff attorneys and several law clerks. Among these clerks were three licensed attorneys, McQuillen, Jeanine Larson and Carol Rubin. At the end of that summer, WEAC decided that it needed to hire a fifth staff attorney. Pursuant to the terms of the governing collective bargaining agreement between WEAC and the Union, a notice announcing the new staff attorney position was posted internally in October, 1982. WEAC did not solicit outside applicants until March 1, 1983. According to WEAC, the long delay resulted from its attempts to negotiate a lower pay scale for the fifth staff attorney position with the Union. Further adding to the delay was WEAC's involvement in NLRB hearings over a representation petition the Union had filed.
McQuillen and Jeanine Larson applied for the position soon after WEAC posted the position internally. Attorney-Clerk Carol Rubin also expressed interest in the position. Although viewed as an excellent candidate, she chose to withdraw from consideration before the hiring process was completed because she had an outstanding job offer from another employer. After soliciting outside applicants WEAC received approximately 64 more applications for the fifth staff attorney position.
Once he received all the applications, Donald Krahn, WEAC's Director of Legal Services, invited WEAC's incumbent staff attorneys to examine the applications to acquaint themselves with the applicants' credentials. By May 10, 1983, Krahn narrowed the pool to 12 applicants for further consideration. These twelve included McQuillen and Larson, as well as the person who eventually received the position, Melissa Cherney. Four of the twelve selected by Krahn soon withdrew from consideration. Krahn and some of the current After the interview process, Krahn narrowed the final selection pool to McQuillen, Cherney, and a third applicant, a woman named Jackie Kinnaman. On June 10, 1983, Krahn forwarded a memorandum detailing McQuillen's, Cherney's and Kinnaman's relative qualifications to Morris Andrews, WEAC's Executive Director. Andrews and Krahn subsequently discussed the three candidates' qualifications. On June 23, 1983, Andrews told Krahn to offer the position to Cherney. Krahn then offered and Cherney accepted the position.
staff attorneys interviewed the remaining eight applicants. Harold Menendez, the applicant considered to have had the best interview, subsequently withdrew from consideration. Krahn ranked McQuillen as having the second best interview, followed by Cherney.
At the time the challenged position was being filled, WEAC had a policy it referred to as its "Affirmative Action" policy. This policy stated:
Affirmative Action
A. WEAC Staff.
1. Minority is defined as Black, Native American, Chicano, Asian-American, and Women.
2. A serious systematic search shall be made for minority persons to fill WEAC staff vacancies until such time as the ratio of minority persons on the staff is balanced.
In June of 1983, approximately one week before WEAC made its hiring decision, WEAC amended paragraph 2 of the policy to read:
2. A serious systematic search shall be made for minority persons to fill WEAC staff vacancies until such time as the ratio of minority persons on the staff reflects the proportion of minority personnel governed by WEAC.
Further on, the policy provided:
... WEAC managers shall:
B. Recruit, hire, and promote in all position classifications without regard to ... sex....
After Cherney received the staff attorney position, McQuillen cried foul. Contending that he had not received the position because of his sex, McQuillen brought suit under Title VII. 1
At trial, McQuillen claimed that absent the defendants' preference to hire a woman, he would have received the position soon after WEAC posted the position internally. According to McQuillen, WEAC sought outside applicants for the position only as part of an effort to find a woman or minority for the staff counsel position. He further claimed that absent WEAC's preference to hire a woman, he would have been chosen over Cherney. He introduced considerable evidence to substantiate his claim.
McQuillen established at trial that he had done fine work for WEAC in the past and was well regarded by his peers. In fact, all four of the current staff attorneys recommended him for the position.
He also presented considerable direct evidence that WEAC officials wanted to hire a woman for the position. For example, he produced a letter that Krahn wrote in June of 1982 in response to a potential employer who inquired about McQuillen. In pertinent part the letter stated:
Gordon would very much like to be a WEAC Staff Counsel. Our affirmative action program would require us to search for a qualified woman, if we were to create a fifth attorney position. Thus, his chances for employment here are very limited. It would be a genuine loss for all of us if he had to leave Wisconsin in order to find a permanent position in teacher labor relations. He will make a very good employee.
Besides this letter, McQuillen presented evidence that Krahn had told McQuillen as well as several of the staff counsel that he McQuillen also claimed that WEAC's "affirmative action" policy victimized him. He provided evidence that WEAC's parent organization, the NEA, exerted great pressure on WEAC to hire employees under a strict quota system. He also pointed out that Andrews had never made the hiring decision for a staff attorney position prior to selecting Cherney.
was being pressured to fill the position with a woman or minority group applicant.
In response to McQuillen's evidence, WEAC claimed that it handled the hiring procedure in a nondiscriminatory fashion and chose Cherney for the position because she was the most qualified candidate. WEAC emphasized that it never had a policy to offer staff attorney positions to attorney-clerks before soliciting outside applicants. It noted that its October 19, 1982 posting was simply to comply with a collective bargaining agreement provision requiring posting and was certainly not intended to constitute the entire hiring process. WEAC also noted that, absent exceptional circumstances, it had always hired its attorneys from applicant pools in the same way it hired Cherney. A male applicant who received the fourth staff attorney position in 1982 was hired pursuant to the same general procedure.
WEAC further stressed that McQuillen's contention that external candidates were sought only to find a woman for the position did not make sense. Two of the three internal candidates were women. One of these candidates, Carol Rubin, was an excellent candidate who left WEAC because WEAC would not accelerate the hiring procedure to accommodate her. The other internal candidate, Jeanine Larson, was among the twelve finalists for the new position.
WEAC contended that the decision to hire Cherney was simply a case of choosing the most qualified candidate. Cherney had excellent academic credentials, graduating with honors from the University of Wisconsin Law School. Her professional experience was diverse and well suited to WEAC's needs. Prior to applying for the position, Cherney had worked as a lawyer for three years with the National Labor Relations Board. She had also had clinical and clerkship experience with the Wisconsin Employment Relations Commission, the Wisconsin Department of Justice, and a law firm utilized by WEAC.
Although McQuillen had done good work with WEAC, his academic record was not as distinguished as Cherney's and his work experience had not been as diverse. Furthermore, in 1982 WEAC had rejected McQuillen for the fourth staff attorney position. After that rejection, Krahn had told McQuillen that if he wanted to become a staff attorney he should obtain employment elsewhere, such as at the NLRB, in order to round out his...
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