BERNADINE E. MATTHEWS v. WAUKESHA COUNTY, et al.
No. 13-1839
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 15, 2014 — DECIDED JULY 22, 2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:10-cv-00440-RTR — Rudolph T. Randa, Judge.
ROVNER, Circuit Judge. In January 2006, Bernadine Matthews submitted an application to Waukesha County for two open positions—Economic Support Specialist (“Specialist“) and Economic Support Supervisor (“Supervisor“). She was unsuccessful in her efforts to secure either position, and filed a suit in federal court alleging that she was discriminated against on the basis of race when she was not hired, in viola-
Because this is an appeal from a grant of summary judgment in favor of the defendants, we will consider the facts in the light most favorable to Matthews, resolving all evidentiary conflicts in her favor and according her the benefit of all reasonable inferences that may be drawn from the record. O‘Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Except where indicated, the following facts are undisputed and largely are culled directly from the Plaintiff‘s Response to Defendants’ Proposed Statement of Undisputed Facts. Those undisputed facts reveal that summary judgment was appropriate.
Included in the job description for the position of Specialist at Waukesha County is that the person must work with and evaluate specific public and economic assistance programs including FoodShare, Medical Assistance, Child Care, Child Support, and W-2. The Specialist at Waukesha County is responsible for conducting eligibility determinations as to public and economic assistance programs and working with individuals and families with minor children to evaluate, calculate and determine eligibility for such programs. The new employee would be under the supervision of Economic Support Supervisor Luann Page and therefore Page was the one responsible for coordinating the hiring process and ultimately making the decision as to whom to hire. The
Matthews submitted an application for the Specialist position, and submitted a resume as well because she also sought to be considered for an open Supervisor position. The cover letter and resume submitted for the Supervisor position would have been forwarded to Senior Human Resources Analyst Renee Gage and would not have been seen by Rapp, who handled only the applications for the Specialist position. Mаtthews also voluntarily chose to complete a separate, optional, Affirmative Action Program form, which disclosed her race as African-American. Pursuant to her duties, Rapp examined Matthews’ application when it was submitted, and determined that it did not reflect the minimum qualifications. Accordingly, she wrote “No T & E,” signifying that the application lacked evidence of the required training and experience, and a rejection letter was sent informing Matthews of that determination. The letter informed Matthews that she could contact Rapp if she had additional information to bring to Rapp‘s attentiоn. Matthews then contacted Waukesha County and spoke with Rapp inquiring as to why she did not qualify for the Specialist position. In the course of that conversation, Matthews provided additional information and
The parties do not agree as to what happened next. Matthews contends that her application was never forwarded to Page for consideration, but also argues in the alternative that even if it was forwarded, thе delay caused her application to be essentially disregarded. The defendants, however, assert that after Rapp consulted with Gage, it was determined that the application met the requirements and the application was forwarded to Page. Page testified in her deposition that she received a call informing her that the application was being forwarded and that she remembered receiving the application because she had already scheduled some interviews and thought that she might have to schedule another one. Moreover, Gage testified that she instructed Rapp to forward the application to Page. Matthews has submitted no evidence refuting that testimony. She asserts that Rapp informed her the position had already been filled, but even if we credit that statement for the purposes of this summary judgment motion, it does not create a material issue of fact. Matthews has identified nothing that creates a dispute as to Gage‘s testimony that she instructed Rapp to forward the application to Page and Page‘s testimony that she received the application, reviewed it, and categorized it based on the information contained in it. Moreover, Matthews acknowledges that when she called Rapp concerning her rejection, Rapp discussed with Gage whether her application met the requirements, which contradicts an understanding that the position was filled. Although Matthews is entitled to the benefit of reasonable
The applications sent to Page did not include the Affirmative Action Program form, and none of those involved in the hiring process for that Specialist position had any information as to the applicant‘s race. It is undisputed that Page did not know the race of the applicants when she evaluated the applications, and that the interview selection process and ultimate hiring decision were based upon finding the most qualified individual for the pоsition. Rapp did not participate in the grouping of applications, the decision as to whom to interview, or the decision as to whom to hire. Of the 42 African-American applicants (excluding Matthews), Rapp determined that 34 met the minimum qualifications and forwarded their applications to Page.
Upon receiving the applications that met the minimum training and experience requirements, Page sorted the applications into four categories based upon how extensive and recent each applicant‘s experience was and how relevant that experience was to the position. Category 1 included those who had
Matthews’ application reflected experience working 20 hours per week as a gate agent for Midwest Connect Airlines from June 2003 to the present, full-time as a commercial service representative for Wisconsin Gas Company from September 1980 until April 1999, and 20 hours per week as a pretrial services representative from August 2001 until December 2001. The duties attributed to her position at Wisconsin Gas included negotiating payment plans, assisting low income families, and verifying income. Although Matthews had experience working with the public, she did not have experienсe with the particular programs such as FoodShare, Medical Assistance, Child Care, W-2, or Child Support as required for Groups 1 and 2, or experience working with clients in a county agency or community social setting as reflected in Group 3. Based upon that experience, Page placed her in Group 4.
Because Group 1 had the most directly relevant experience, Page chose to interview applicants in Group 1 initially, and to proceed to interviews with Group 2 applicants only if a suitable candidate was not found in Group 1. In addition, “courtesy interviews” were provided to three internаl
A few months later, in April 2006, a second Specialist position became vacant. Because of the close temporal proximity to the earlier process, Waukesha County chose to use the pool of applicants from the January opening. Patricia McElroy-Komppa (“Komppa“) was the Supervisor for the newly vacant position, and she received and reviewed those applications to determine interviews. In determining whom to interview, Komppa looked for individuals who had previous experience in determining eligibility for public assistance programs, and focused on experience rather than education. She interviewed some applicants from Groups 2 and 3, and ultimately hired Princella Turner, an African-American, because she believed that Turner was the most qualified for the position. Neither Matthews nor anyone else in Group 4 received an interview for that April 2006 opening.
Matthews alleges that the hiring process was discriminatory on the basis of race. The district court granted the defendants’ motion for summary judgment, and Matthews appeals that determination as well as the district court‘s decision to strike certain evidence.
We turn initially to the challenge to the district court‘s decision to strike evidence. The district court below faced numerous evidentiary challenges preceding its summary judgment determination, and discussed those challenges at some length in an attempt to parse out the acceptable from the objectionable. For instance, the defendants sought to include evidence of Matthews’ 24-year litigation history aimed largely at her prior employer Wisconsin Gas, including at least 4 race discrimination complaints, 7 disability/handicap discrimination complaints, 1 complaint of age discrimination, and 18 complaints based on retaliation, harassment, unfair labor practices, and other employment issues. That history included a representation in a lawsuit a year after this complaint was filed that she was on permanent medical restrictions limiting her to no more than 20 hours of work weekly stemming from a neck injury sustained in 1996. The district court refused to consider the list of lawsuits, holding that they were irrelevant under
The district court addressed in a similar manner the defendants’ myriad challenges to exhibits submitted by Matthews which fell within the following categories: (1) newspaper articles; (2) EEOC filings; (3) DOJ filings; (4) applications; (5) interview notes; (6) depositions summaries; and (7) County policies. Matthews challenges on appeal only the district court‘s decision to exclude consideration of the newspaper clippings. Matthews asserts on appeal that the newspaper, the County Beat, is published by Waukesha County, and therefore is
We turn then to thе merits of the summary judgment determination. Matthews argues that the district court improperly granted summary judgment to Waukesha County (the “County“) on her claim under Title VII because she established a claim of race discrimination under both the direct and indirect methods. See generally Andrews v. CBOCS West, Inc., 743 F.3d 230, 234–35 (7th Cir. 2014) (setting forth the direct and indirect methods of establishing discrimination under Title VII). Matthews argues that the County discriminated against her in failing to hire her for the position and also in eliminating her from consideration based on her race. We will consider these theories in turn.
First, Matthews argues under the indirect method of establishing a claim that she established a prima facie case by demonstrating that: (1) she is African-American; (2) she applied for and was qualified for the position; (3) she was
That shifts the burden back to Matthews to present evidence that the stated reason was pretext for discrimination. Id. She has failed to present evidence establishing a genuine issue of fact as to pretext. Matthews does not even argue that those categories are not directly related to the job duties for the open position, or that the grouping was itself pretextual. In fact, in her response to the defendants’ statement of undisputed facts Matthews acknowledged that none of those involved in the hiring process for that Specialist position—including Page—knew the race of the applicants when evaluating and grouping the applications, that the interview selection process and ultimate hiring decision were based upon finding the most qualified individual for the position, and that the four categories were based upon how extensive and recent eaсh applicant‘s experience was and how relevant that experience was to
She nevertheless maintains that even if that line of argument proves faulty, she can establish discrimination under the indirect method on the related theory that her application was not even considered or appropriately categorized because Rapp refused to forward her application for evaluation while forwarding that of similarly-situated white applicants. Matthews contends that under this theory, the only element of the prima facie case that is at issue is whether Matthews was ever actually considered for the position. As evidence that Matthews’ application was never actually forwarded to Page, the decisionmaker in the hiring process, Matthews points to her own (disputed) testimony that Rapp informed her on the phone that the position had already been filled. Moreover, Matthews asserts that even if the application was forwarded to Page, the stigma and delay from the initial rejection prevented Matthews from being fairly considered, resulting in Page placing her in Group 4 despite Page‘s belief that Matthews should have been in Group 2 or 3. Those allegations are insufficient to create a genuine issue of fact. First, as we stated
The second assertion by Matthews is that even if her
Second, Matthews contends that she has established her Title VII claim of race discrimination under the direct method. Under the direct method, Matthews must provide either direct or circumstantial evidence of intentional racial discrimination. Nichols v. Michigan City Plant Planning Dept., 755 F.3d 594, 602 (7th Cir. 2014); Montgomery v. American Airlines, Inc., 626 F.3d 382, 393 (7th Cir. 2010). The undisputed facts establish that the applicants were categorized into groups based upon the degree to which their past experience was relatеd to the requirements of the open position, and that the person sorting applicants into those groups was unaware of the race of the applicants at the time that sorting occurred.
Matthews’ nonetheless argues that she should succeed under a “cat‘s paw” theory that attributes Rapp‘s improper motives to Page. “In the law of employment discrimination, the ‘cat‘s paw’ theory can apply when a biased subordinate who lacks decision-making power uses the formal decision-maker ‘as a dupe in a deliberate scheme to trigger a discriminatory employment action.‘” Smith v. Bray, 681 F.3d 888, 897 n.3 (7th Cir. 2012), citing EEOC v. BCI Coca-Cola Bottling Co. Of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006); Staub v. Proctor Hospital, 131 S. Ct. 1186, 1192–93 (2011). Liability under that theory can be imposed where a non-decision-making employee with discriminatory animus provided factual information or input that may have affected the adverse employment action. Smith, 681 F.3d at 897. Here, Matthews asserts that Rapp possessed such a discriminatory animus as indicated by her false statement that the position had been filled, and also by her action in forwarding applications from white employees who lacked minimal qualifications. Matthews contends that Rapp provided input that caused Page to place Matthews in Group 4 and thus fail to consider her application. Once again, this argument lacks support in the record. Setting aside
Finally, Matthews argues nonetheless that statistical evidence provides evidence of intentional racial discrimination by revealing a pattern and practice of discriminating against African-Americans. There are numerous problems with this approach. As an individual rather than a class action, we have held that evidence of a pattern or practice can only be collateral to evidence of specific discrimination against the plaintiff herself, Gilty v. Village of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990), and Matthews lacks such evidence. Moreover, to proceed with such a claim, Matthews would need to present evidence indicating that racial discrimination was the employer‘s standard operating procedure—the regular rather than unusual practice. International Broth. Of Teamsters v. United States, 431 U.S. 324, 336 (1977); Adams v. Ameritech Services, Inc., 231 F.3d 414, 422 (7th Cir. 2000). Statistical evidence may be helpful in establishing such a claim, but those statistical comparisons must involve the proper “community” or group when making the statistical comparison. Id. at 423; Hazelwood School District v. United States, 433 U.S. 299, 308 (1977). For instance, in Hazelwood the Supreme Court held that a statistical comparison of the racial composition of Hazelwood‘s teacher work force to its student population “fundamentally misconceived the role of statistics in employment discrimination
Matthews’ claim against Rapp under