NORMAN-NUNNERY v. MADISON AREA TECHNICAL Coll.

• Decision Date: 08 November 2010
• Docket Number: No. 09-1757.,09-1757.
• Citation: 625 F.3d 422
• Parties: Judy R. NORMAN-NUNNERY, Plaintiff-Appellant, v. MADISON AREA TECHNICAL COLLEGE, Carol Bassett, William Stryker and Jackie Thomas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

625 F.3d 422

Judy R. NORMAN-NUNNERY, Plaintiff-Appellant,

v.MADISON AREA TECHNICAL COLLEGE, Carol Bassett, William Stryker and Jackie Thomas, Defendants-Appellees.

No. 09-1757.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 22, 2009.

Decided Nov. 8, 2010.

COPYRIGHT MATERIAL OMITTED.

Robert J. Gingras, Paul A. Kinne (argued), Gingras, Cates & Luebke, Madison, WI, for Plaintiff-Appellant.

Josh Johanningmeier, Katherine Stadler (argued), Godfrey & Kahn, Madison, WI, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and BAUER and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Judy Norman-Nunnery applied for a job at Madison Area Technical College (“MATC”) in 2005. When she did not receive an interview, much less a job, she sued MATC and three employees involved in the hiring process. She alleged that they discriminated against her because of her race and retaliated against her because of her marriage to Willie Nunnery, a lawyer who had previously been involved in filing a frivolous lawsuit against these same defendants. The district court granted summary judgment in favor of the defendants, and we affirm.

I.

Norman-Nunnery is an African-American woman who holds a doctorate in education from the University of Wisconsin-Madison. She has held a number of management positions in education and in state government, including as vocational education coordinator for the Milwaukee Public Schools, administrator for the Department of Health and Human Services, and administrator for the Workers' Compensation Division and the Division of Vocational Rehabilitation in the State's Department of Workforce Development. She is married to Willie Nunnery, a lawyer. In 2000, Mr. Nunnery represented Elvira Jimenez in a race discrimination suit against MATC, Carol Bassett, Jackie Thomas and William Stryker, who are all defendants in this case as well. The Jimenez case ended as badly as a case can end for a lawyer and his client. The court dismissed the Jimenez suit as frivolous and found that certain documents produced by Jimenez had been fraudulently created. Ultimately, Mr. Nunnery was sanctioned and his law license was suspended for a period of time as a result of his actions in the Jimenez case. Stryker, Thomas and Bassett all were questioned at the sanctions hearing.

Stryker and Bassett both testified regarding the harm they suffered as the result of being falsely accused of engaging in racial discrimination.

In 2002, Norman-Nunnery applied for a position with MATC as the Executive Dean of Learning. Thomas nominated four internal candidates for the position. Nothing in the record suggests that Thomas had any other involvement in the hiring process for the Executive Dean position. Although Norman-Nunnery passed the initial screening process for applicants, she was not interviewed for the job. As part of the hiring process, MATC compiled a list of information about the candidates that specified, among other things, their race. The list for the dean position identified Norman-Nunnery as “black.” There is no evidence in the record that any of the individual defendants here ever saw that list.

In 2005, Norman-Nunnery applied again for a position at MATC, this time for the position of Disability Resource Services Administrator (hereafter “DRS Administrator”). Norman-Nunnery learned of the position from Bob Wynn, a minority recruiter for MATC who contacted her because he thought she would be a good candidate for the job. With Wynn's encouragement, Norman-Nunnery called Eugene Fujimoto, MATC's Diversity Coordinator/Affirmative Action Officer, to discuss the job further. Fujimoto was responsible for monitoring MATC's hiring process for fairness. He told Norman-Nunnery that her administrative experience would be helpful for this particular position. After discussing the job with Wynn and Fujimoto, Norman-Nunnery applied.

Seventy-six other persons also applied for the DRS Administrator position. Bassett, an administrator in the human resources department, conducted an initial screening of the applicants to weed out those who did not meet the minimum qualifications. The job posting specified that a minimally qualified applicant would have a master's degree and at least 4000 hours of administrative experience. The job description set forth the basics of the position:

Direct the daily operation, activities and staff of Disability Resource Services across the MATC district. Plan, develop, implement, monitor and assess programs and services meeting the requirements of Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act for eligible students with disabilities. Promote and support the success of students with disabilities emphasizing the development of the whole person with the student's learning experience.

The initial screening reduced the applicant pool to 46 candidates. Bassett found that Norman-Nunnery met the standards for a minimally qualified applicant and Norman-Nunnery advanced to the next stage of the hiring process.

In order to select the ten most qualified candidates from the pool of forty-six to proceed to the interview phase, MATC used a selection committee consisting of Kevin Carini, Beth Bremer, Marilyn Fayram, Carol Higgans ¹ and Jacquelyn Thomas. Thomas is a defendant in this case, and of course had been a defendant in the Jimenez suit filed by Norman-Nunnery's husband many years earlier. Thomas served as chair of the selection committee and was to be the direct supervisor of the DRS Administrator. Kristine Gebhardt, a MATC Human Resources Administrator, led a training session with the newly-formed committee to establish “depth and breadth” screening criteria for the DRS Administrator position. The committee developed a list of five criteria by which to assess the candidates and assigned a maximum number of points to each: (1) experience with higher education (two points); (2) experience with adult persons with disabilities (three points); (3) knowledge of current and emergent technologies for persons with disabilities (1 point); (4) supervisory experience (two points); and (5) experience with providing reasonable accommodations in an educational setting (three points).

After the depth-and-breadth criteria were established, each committee member independently scored each of the forty-six candidates who had been found minimally qualified. The committee then met to discuss each candidate and the rationale for their scores until they reached a consensus on a score for each applicant. Thomas recorded the consensus score for each applicant on her copy of the screening form. The committee selected the top ten scoring applicants for interviews and Norman-Nunnery did not make the cut. Because the college set certain equal employment opportunity goals, three or more minority candidates were required to be in the interview pool. After selecting the original ten candidates, Higgans then retrieved the “affirmative action sheet” that identified the race of each applicant. On comparing that sheet to the list of ten potential interviewees, the committee learned that the list of ten candidates included only one minority applicant, an African-American woman. The committee then added to the interview pool the next two highest scoring minority applicants, an Asian man and a Hispanic woman. Two of the ten original interviewees removed themselves from consideration and the remaining candidates were interviewed. After the first round of interviews, the pool was reduced to three candidates. None of the minority candidates advanced to the second round of interviews.

At that point, Fujimoto became concerned that no minority candidates were advancing to the next round. He approached Stryker, the vice president of human resources, and Higgans to express his concerns. He asked why Norman-Nunnery had not been given an interview. Higgans told him that Norman-Nunnery had scored lower than the interviewed applicants in the depth-and-breadth categories for higher education and experience with persons with disabilities. Stryker then arranged a second meeting to address Fujimoto's concerns. Present at the meeting were Stryker, Thomas and Bassett (the individual defendants here) as well as Higgans and Fujimoto. Fujimoto told the group that Norman-Nunnery had been specifically recruited for the job, had a high level of administrative experience and also had an excellent background. He felt that her level of relevant experience was not reflected in her application and asked the group to make certain assumptions about her experience from her résumé, asserting that they would learn during the interview process specific qualifications that she possessed that were not apparent on her paperwork. He also questioned the validity of the depth-and-breadth criteria. Higgans responded to these concerns by reiterating that Norman-Nunnery had scored lower than the other applicants in two areas of the depth-and-breadth criteria. When Stryker asked if anyone believed that discrimination had played a part in the interview selection process, no one said it had. Stryker decided not to add Norman-Nunnery to the interview list, a decision in which Bassett and Higgans concurred. Fujimoto then sent a letter to Norman-Nunnery, explaining that she had not been selected for an interview because other candidates scored higher than she did in certain categories, including higher education experience and direct experience with persons with disabilities.

After the second round of interviews, MATC hired Sandra Hall, a white woman, for the DRS Administrator position. Hall, who had previously worked for Norman-Nunnery at the Division of Worker's Compensation, had thirty years of experience in the disability field, a master's degree in Rehabilitation Counseling, three years of administrative experience at the University of Wisconsin-Whitewater supervising disability services, five years of experience working...