Senner v. Northcentral Technical College

• Decision Date: 13 May 1997
• Docket Number: No. 96-3338,96-3338
• Citation: 113 F.3d 750
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1709, 70 Empl. Prac. Dec. P 44,703, 118 Ed. Law Rep. 63 Gary A. SENNER, Plaintiff-Appellant, v. NORTHCENTRAL TECHNICAL COLLEGE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 750

113 F.3d 750

73 Fair Empl.Prac.Cas. (BNA) 1709,

70 Empl. Prac. Dec. P 44,703, 118 Ed. Law Rep. 63

Gary A. SENNER, Plaintiff-Appellant, v. NORTHCENTRAL TECHNICAL COLLEGE, Defendant-Appellee.

No. 96-3338.

United States Court of Appeals Seventh Circuit.

Argued March 4, 1997.

Decided May 13, 1997.

Sharon Gisselman (submitted on briefs), Wausau, WI, for Plaintiff-Appellant.

Kevin Wolf, Cari Lynn Hoida, Ruder, Ware & Michler, Wausau, WI, for Defendant-Appellee.

Before CUMMINGS, COFFEY, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

This is a claim of age and gender discrimination. 42 U.S.C. § 2000e (Title VII); 29 U.S.C. § 621 (ADEA). Plaintiff Gary Senner, Ed.D., 54, applied for a job as psychology instructor at defendant Northcentral Technical College ("NTC") in Wausaw, Wisconsin. NTC hired Kathleen Kanz, M.A., 29. Senner sued, charging that NTC manipulated its hiring criteria in order to consider only younger women candidates. The district court granted summary judgment to NTC. We affirm.

I.

Defendant NTC advertised an opening for an instructor of psychology. A newspaper advertisement indicated that the minimum criteria were a master's degree in psychology, with a sociology minor preferred; it referred interested persons to NTC's Human Resources Office for a complete position announcement and application form. The position announcement added that candidates must be certifiable by the Wisconsin Technical College System, that the master's degree should include a "current knowledge of theory and research issues," and emphasized that the minor in sociology was "highly desirable." The announcement expressed a preference for "[a] strong background in general developmental and adjustment psychology," as well as post-secondary teaching experience. The instructor's basic duties would be to teach freshman and sophomore psychology courses. The announcement indicated that NTC preferred a candidate who had the flexibility "to teach a range of courses[.]" NTC's application form also informed candidates that it was necessary to submit original transcripts of all college, university, or technical school credits.

According to documents which NTC submitted, for every new hire the college makes, the person who will be the immediate supervisor for the new position must develop evaluation rating forms to assess the candidates. Accordingly Tom Kerkes, the "supervisor" equivalent in NTC's General Education Department, had two of NTC's psychology instructors develop rating criteria for applications to the new position, and rate the applicants. The form they developed included eight rating criteria; ¹ for each criterion, the raters assessed a score from one (low) to five (high). According to NTC, the advertisement resulted in forty-eight initial inquiries. Fewer than half of these people (eight male, twelve female) eventually submitted application forms, and three (two male, one female) who submitted applications failed to submit transcripts. Of the six men and eleven women who submitted both an application form and transcripts, seven (three male, four female) ² failed to meet the minimum requirement of an M.A. in psychology. The documents which the parties submitted contain no further information about one man who submitted both an application and transcripts, but whose application apparently was never assessed by NTC. The remaining nine people (two male, one over forty; seven female, one over forty) received numerical rating evaluations from each of the NTC psychology instructors who assessed the applications. The three candidates who received the highest numerical scores, all women, were shortlisted for an on-campus interview. NTC eventually hired Kathleen Kanz, the candidate who received the highest score. Kanz had a B.A. in psychology and an M.A. in psychological counselling. She had never before held a full-time teaching position, but had taught psychology courses part-time at the college level.

One of the unsuccessful candidates was Gary Senner, who was 54 years old at the time he applied for the job. Senner had an associate's degree in business administration from NTC, a B.S. in social sciences, an M.S.Ed. in Guidance and Counselling, and an Ed.D. with a specialization in psychology. NTC categorized his doctorate as a degree in college teaching with a minor in psychology. Senner had never held a full-time teaching position; after he received his Ed.D., he worked as an employment counsellor and social worker for Marathon County (Wisconsin), while teaching occasionally as an adjunct at nearby state universities. Senner believed that he was better qualified than the woman whom NTC hired, and became convinced that he had been discriminated against in the hiring process. He filed suit against NTC in federal district court, claiming gender discrimination under Title VII, 42 U.S.C. § 2000e, and age discrimination under the Age Discrimination in Employment Act. 29 U.S.C. § 621. After discovery, NTC moved for summary judgment. The district court granted the motion, and Senner appeals.

II.

We review the district court's grant of summary judgment de novo, with the record and all reasonable inferences drawn therefrom viewed in the light most favorable to Senner, the non-movant. Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 346 (7th Cir.1997). To succeed on a claim of age or gender discrimination, a plaintiff may meet his burden of proof by establishing intentional discrimination either through direct or circumstantial evidence of discriminatory intent. Helland v. South Bend Community School Corp., 93 F.3d 327, 329 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 769, 136 L.Ed.2d 715 (1997). Because there was no direct evidence of discrimination, Senner chose to establish intentional discrimination through the now-familiar, indirect burden-shifting method of proof established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

In order to prevail under the McDonnell Douglas approach, Senner must initially establish a prima facie case of discrimination by a preponderance of the evidence. St. Mary's Honor Center v. Hicks 509 U.S. 502, 506, 113 S.Ct. 2742, 2746, 125 L.Ed.2d 407 (1993). Senner has shown that he is a male over age forty, and that the position for which he applied was filled by a female under age forty. NTC makes a desultory attempt to argue that Senner has not made out a prima facie case of discrimination, because he has not shown that he was as qualified as either the woman whom NTC hired, or any of the women who made NTC's shortlist for the position. A plaintiff must show he was qualified for the position he sought, or else he cannot prove injury. See Gilty v. Village of Oak Park, 919 F.2d 1247, 1255 (7th Cir.1990). We have no comment on whether NTC might succeed on this argument at trial. But this is an appeal from summary judgment, not trial, and Senner vigorously disputes NTC's contention that Kanz was better qualified than he, insists he was the best qualified candidate, and argues that NTC failed to examine his credentials thoroughly. Since Senner's suitability for the instructorship is certainly material to the case, the dispute over his qualifications precludes summary judgment solely on grounds that Senner has not made out his prima facie case.

Assuming, for the purposes of this appeal, that Senner has established a prima facie case of discrimination, the burden of production shifts to NTC to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Senner concedes that the numerical evaluation system which NTC developed to screen applications for the psychology position meets NTC's burden on this issue. Accordingly, the burden shifts back to Senner to demonstrate that NTC's stated reason was a mere pretext for discrimination. For the purpose of defeating a summary judgment motion, Senner need only produce evidence from which a rational fact-finder could infer that NTC's proffered reasons were pretextual. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994).

Senner first suggests that a jury could believe that NTC's screening system was a pretext for discrimination because, according to Senner, NTC has conflicting records about the number of people who applied for the position, categorized several applications as "incomplete" without ever establishing criteria for a "complete" application, and never assigned a numerical rating to some of the evaluation sheets. The latter, according to Senner, could imply that the numerical ratings were simply added as an afterthought, after NTC decided which candidates it really wanted to interview.

The problem with this argument is that, contrary to Senner's contention, there is neither a conflict in NTC's records, nor undisclosed methods for determining whether an application is complete. Both the newspaper advertisements and the Position Announcement directed interested persons to obtain an application from NTC's personnel office. That application clearly stated that applicants must submit original transcripts of all tertiary coursework. NTC's "Position Opening Check-Off Sheet" indicates that forty-eight people inquired about the job. Twenty-nine sent an application or resume. Only seventeen submitted both an application form and original transcripts. ³ Of these seventeen, at least six lacked an M.A. in psychology. Senner, who bears the burden of proof (and, because he knew the names of the rejected applicants, presumably could have contacted them), has submitted no evidence whatsoever that any of these applicants in fact had an M.A. in psychology when NTC claimed they did not, or submitted original transcripts which NTC ignored. Of the remaining ten...