Rahn v. Bd. of Trs. of N. Ill. Univ.

Decision Date23 September 2015
Docket NumberNo. 14–2402.,14–2402.
Citation116 U.S.P.Q.2d 1515,803 F.3d 285
PartiesGregory E. RAHN, et al., Plaintiffs–Appellants, v. BOARD OF TRUSTEES OF NORTHERN ILLINOIS UNIVERSITY, et al., Defendants–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Fabian John Rosati, Attorney, Law Office of Fabian J. Rosati, Chicago, IL, for PlaintiffsAppellants.

Nadine J. Wichern, Attorney, Office of the Attorney General, Chicago, IL, for DefendantsAppellees.

Nadine J. Wichern, Attorney, Office of the Attorney General, Chicago, IL, for DefendantsAppellees.

Before WOOD, Chief Judge, and ROVNER, Circuit Judge, and SPRINGMANN, District Judge.*

Opinion

ROVNER, Circuit Judge.

Gregory Rahn (Rahn) and Genemetrix, a company in which Rahn and his wife Regina Rahn (hereinafter referred to simply as Regina in order to avoid confusion with her husband) are principals, filed a complaint in the district court against the Northern Illinois University Board of Trustees (NIU) and individual Northern Illinois University officers Promod Vohra, Omar Ghrayeb, Bradley Bond, and Raymon Alden III, alleging discrimination and retaliation in violation of Title VII, copyright infringement and violations of due process. The district court dismissed the due process claims with prejudice, and that decision is not challenged in this appeal. The district court granted summary judgment in favor of the defendants on the racial discrimination, retaliation, and copyright infringement claims, and the plaintiffs now appeal those decisions. Because the claims are factually distinct, with no real overlap, we will address the facts underlying the claims separately. We review the district court's summary judgment decision in favor of the defendants de novo, considering the facts in the light most favorable to the plaintiffs. Seiser v. City of Chicago, 762 F.3d 647, 653 (7th Cir.2014).

I.

We begin with the facts underlying the claim of racial discrimination and retaliation. Rahn, who is white, alleged that the defendants engaged in reverse discrimination in violation of Title VII of the Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq., when they failed to hire him for a tenure-track assistant professor position at the university based on his race.

Rahn, who earned a PhD in Industrial Engineering from the University of Illinois, was hired as a visiting professor at NIU for the 20062007 school year. His wife Regina was hired as a tenure-track assistant professor in the Department of Industrial and Systems Engineering (“ISYE”) of the College of Engineering and Engineering Technology (“College of Engineering”) for that same school year. During that year, a tenure-track assistant professor position opened up in that Department, and Rahn applied for that position. A search committee was entrusted with evaluating the applicants for the position. Regina was a member of that committee along with Dr. Richard Marcellus, Dr. Reinaldo Moraga, Dr. Murali Krishnamurthi and Michelle Coovert, who was a student working as a teaching assistant for Rahn. Eighty-two applicants applied for that position, and on March 5, 2007, the committee met to consider the applicants. At that meeting, they voted as to the qualifications of the applicants in an effort to winnow the applicants down to a group that would proceed to the phone interview stage.

Despite her husband's status as one of the applicants, Regina remained on the search committee and participated in the voting at that meeting. Rahn received three votes at that meeting—from his wife Regina, his teaching assistant Coovert, and Moraga—which was sufficient to place him in the top ten of applicants although he was not the highest vote-getter. A number of other candidates received three votes as well, one candidate received five votes, and the person ultimately hired for the position, Dr. Gary Chen, received four votes at that meeting.

Within days of that meeting, on March 9, 2007, Promod Vohra, the dean of the College of Engineering, convened an emergency meeting to inform the committee that Regina was being removed from it based on the conflict of interest as the wife of one of the applicants. That decision was consistent with NIU Board of Trustees policy that provides that [f]aculty and administrative employees are selected for employment without regard to relationship by blood or marriage” and that “no individual shall initiate or participate in personnel decisions involving initial employment, retention, promotion ... or other direct benefit to an individual employee who is a member of the same immediate family or immediate household [including] an employee's spouse....” Dist. Ct. Doc. 163–16, PageID 1182. Although Rahn contends that the policy applies only to the Board of Trustees, the language including faculty and administrative employees belies such an interpretation, and in any case he fails to provide any support for that contention.

Coovert testified that at that emergency meeting, Vohra was upset that Regina had been on the committee voting on the potential candidates including her husband, and questioned committee member Moraga as to why he voted for Rahn. Coovert also testified that Vohra stated that he would not hire a white man into the department if qualified minority candidates were available. Regina stated that she was listening outside the door of the meeting, and similarly heard those statements from Vohra, whereas Ghrayeb, Vohra and Moraga testified that no such statements were made. For purposes of summary judgment, however, we must take the testimony in the light most favorable to Rahn.

In an effort to provide a more transparent process, Krishnamurthi developed an evaluation metric to provide a structure for comparing the candidates. That metric set forth categories which corresponded with the requirements set forth in the job description, allowing the committee members to numerically rank each candidate in the individual categories. Once those scores were tallied, the resulting composite score would facilitate comparison of candidates. The search committee was given the opportunity to provide feedback as to the proposed metric, and once finalized the metric was used in the evaluation of the candidates by the committee.

Rahn argues that the metric was designed to eliminate him from consideration, and asserts that Coovert testified to that effect. Coovert's testimony, however, does not support that argument. Coovert initially stated that she believed the metric was designed to eliminate Rahn, but upon further questioning she clarified that she thought the metric valued academic experience such as publishing over industry experience, and would therefore favor those with that academic background. She stated that as a student she valued the industry experience that her professors such as Rahn brought to the classroom. That testimony does not support the argument that the metric was a subterfuge for eliminating Rahn on racial grounds. A university employer may properly preference academic experience, and Rahn has not even presented any evidence that such a preference was inconsistent with the initial description of the position and the preferred qualifications. Moreover, Coovert did not claim to have any personal knowledge as to the purpose or procedure of the creation of the metric, and there was no evidence at all that Krishnamurthi or the other members of the search committee harbored any discriminatory intent. Rahn also failed to produce any evidence that Vohra had any role in the creation of the metric. In fact, the defendants contend that the metric merely tracked the qualifications set forth in the position description, and Rahn does not argue otherwise.

Rahn did not make the eventual cut of candidates, and did not proceed to the telephone stage of the process. Regina therefore was allowed to rejoin the committee and she participated in the interviews and the vote on the final candidates. The committee then forwarded the proposed final candidates to Vohra, and he made the ultimate hiring decision to choose Chen, who was not a white male.

Rahn subsequently filed a grievance contesting the decision to hire Chen over him. NIU denied the grievance, and Rahn pursued an EEOC complaint and then filed this suit alleging race and gender discrimination, which he ultimately pared down to simply a claim of race discrimination. He alleges that under either the direct or indirect method of establishing discrimination, he should survive summary judgment.

To prevail under the direct method, a plaintiff must produce “either direct or circumstantial evidence that would permit a jury to infer that discrimination motivated an adverse employment action.” Langenbach v. Wal–Mart Stores, Inc., 761 F.3d 792, 802 (7th Cir.2014). Direct evidence is evidence of discriminatory intent without resort to inference, such as an admission of discriminatory intent often referred to as “smoking gun” evidence. Ripberger v. Corizon, 773 F.3d 871, 877 (7th Cir.2014) ; Hutt v. AbbVie Products, LLC, 757 F.3d 687, 691 (7th Cir.2014). Here, there is no such direct evidence. Rahn submits that the statement by Vohra regarding hiring a qualified minority candidate over a white one is dispositive direct evidence that he was not hired because of his race. Vohra, however, did not make the decision to eliminate Rahn from consideration. The search committee, applying the factors deemed relevant to the job, eliminated him from consideration. Vohra chose between the two candidates submitted to him by the committee, but Rahn was not in that pairing. Accordingly, the statement by Vohra is not evidence “without resort to inference” that the hiring decision was based on his race.

Moreover, even viewed as circumstantial evidence that discrimination motivated the decision, it is insufficient to survive summary judgment. “Circumstantial evidence can take a number of forms, such as suspicious timing, behavior or comments directed at...

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