Opinion
Cause No. 3:03-CV-572 RM.
April 5, 2005
OPINION and ORDER
Bruce Westrate alleges in his amended complaint that, because of his gender, he was not hired for a faculty position at Indiana University at South Bend. He claims IUSB's actions violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Dr. Westrate also alleges that after he complained about the hiring process, IUSB and Patrick Furlong, chairman of the history department at IUSB, made defamatory statements about him in violation of Indiana law. The defendants have moved for summary judgment on both claims of Dr. Westrate's amended complaint.
FACTS
The following facts are taken from the summary judgment record, and are viewed as favorably to Dr. Westrate as is reasonable. Dr. Westrate began his employment at IUSB in 1988 and continued to teach there as a part-time, non-tenured adjunct lecturer through 2003. Dr. Westrate reports that over the years, he taught classes in world, modern middle east, and modern African history. In 1992, Dr. Westrate published a book entitled THE ARAB BUREAU, BRITISH POLICY IN THE MIDDLE EAST, 1916 THROUGH 1920.
In 2002, IUSB posted an opening for a one-year, non-tenured position in Modern European History:
Indiana University — South Bend Visiting Assistant Professor, Modern European History
Location: IN, U.S.A. Last Updated: March 11, 2002 Submitted: March 5, 2002 Closing Date: April 15, 2002 Primary Category: European History Secondary Category: None
Indiana University South Bend is accepting applications for a one-year Visiting Assistant Professor of Modern European History for the 2002-2003 academic year. The successful candidate will be expected to teach a 4-4 course load, including a survey of modern Europe since 1815, a thematic introductory course on twentieth-century world history, and advanced courses on twentieth-century Europe. Ph.D. and teaching exper[ie]nce preferred. A.B.D. will be considered.
Send letter of application, [curriculum vita], transcripts, and three letters of recommendation to Professor Patrick J. Furlong. Review of applications will begin March 29 and continue until the position is filled. Indiana University South Bend is an AA/EOE.
Dr. Furlong, Chair of IUSB's History Department, appointed a Search and Screen Committee ("the Committee") to review applications, make interview recommendations, conduct interviews, and recommend a candidate to hire for the position.
IUSB reports receiving twenty-eight applications for the position. After reviewing the applications, the Committee recommended ten candidates for initial interviews. The recommended interviewees included six males and four females; Dr. Westrate's name was not on the list, and he was not interviewed for the position. The Committee then narrowed the list to five candidates (three males and two females) for further interviews. The Committee ultimately recommended Dr. Sace Elizabeth Elder, and she was hired for the Modern European History position.
Dr. Westrate filed a charge with the EEOC, claiming he had been denied the Modern European History teaching position because of his age and gender. Dr. Westrate reports that after receiving his right to sue letter from the EEOC in May 2003, he made a Freedom of Information Act request for a copy of the EEOC's file relating to his complaint against IUSB. He timely filed suit against IUSB on August 8, 2003, alleging age and gender discrimination.
On February 6, 2004, Dr. Westrate filed an amended complaint, alleging that IUSB engaged in gender discrimination when it didn't hire him for the faculty position in Modern European History, and that IUSB and Patrick Furlong defamed him in their response to the EEOC's investigation of his complaint against IUSB. Dr. Westrate seeks compensatory, exemplary, statutory, and punitive damages, fees, and costs.
IUSB says it is entitled to summary judgment on Count 1 of the amended complaint because Dr. Westrate can't establish a prima facie case of gender discrimination. IUSB argues, in the alternative, that even if Dr. Westrate could establish a prima facie case, it has a legitimate non-discriminatory reason for its actions. IUSB and Dr. Furlong argue with respect to Count 2 that Dr. Westrate can't establish a prima facie case of defamation and summary judgment on that claim is proper, as well. The parties' arguments on Count 1 and Count 2 will be addressed separately below.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In deciding whether a genuine issue of material fact exists, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No genuine issue of material fact exists when a rational trier of fact could not find for the nonmoving party even when the record as a whole is viewed in the light most favorable to the nonmoving party. O'Neal v. City of Chicago, 392 F.3d 909, 910-911 (7th Cir. 2004). "The mere existence of an alleged factual dispute will not defeat a summary judgment motion; instead, the nonmovant must present definite, competent evidence in rebuttal." Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). The party with the burden of proof on an issue must show that there is enough evidence to support a jury verdict in its favor. Lawrence v. Kenosha County, 391 F.3d 837, 842 (7th Cir. 2004); see also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) ("As we have said before, summary judgment `is the `put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.'" (quoting Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999)).
COUNT 1 — GENDER DISCRIMINATION A. Prima Facie Case
Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful for an employer to refuse to hire an applicant because of the individual's gender. 42 U.S.C. § 2000e-2(a)(1). Dr. Westrate may prove discrimination through direct evidence demonstrating discriminatory intent by the defendant or its agents. "An example of direct evidence would be an employer's admission that an adverse employment action was taken against an employee based solely on an impermissible ground, such as [gender]." Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 272 (7th Cir. 2004).
Alternatively, Dr. Westrate may proceed by offering indirect evidence of discrimination under the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If, under the indirect method, Dr. Westrate carries his burden of establishing a prima facie case, the burden shifts to IUSB to set forth a legitimate, non-discriminatory reason for its actions and "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000) ( quoting Texas Dept. of Comm'y Affairs v. Burdine, 450 U.S. 248, 257 (1981)).
If IUSB sets forth a legitimate, non-discriminatory reason for its actions, the inference of discrimination disappears and Dr. Westrate must prove, by a preponderance of the evidence, that the reason proffered by IUSB was pretextual for intentional discrimination. Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). "While the McDonnell Douglas approach is often called a `burden shifting' method of proof, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Stockett v. Muncie Transit, 221 F.3d at 1001.
Dr. Westrate hasn't presented direct evidence of discrimination, so to prevail on his claim, he must show that (1) he belongs to a protected class, (2) he was qualified for the position sought; (3) he was rejected for the position; and (4) the position was given to a person outside the protected class.Jordan v. City of Gary, 396 F.3d 825, 833 (7th Cir. 2005);Koszola v. Board of Educ. of City of Chicago, 385 F.3d 1104, 1110 (7th Cir. 2004). In a reverse discrimination case such as this — alleging discrimination against a white male — the first element of the prima facie case has been modified, requiring Dr. Westrate to show "background circumstances that demonstrate that a particular employer has reason or inclination to discriminate invidiously against whites [or men] or evidence that there is something `fishy' about the facts at hand." Katerinos v. United States Dept. of Treasury, 368 F.3d 733, 736 (7th Cir. 2004) ( quoting Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003)). He can discharge this obligation by supplying evidence of a scheme to fix performance ratings to his detriment, an expression of intense interest in hiring a woman, a power structure composed almost entirely of women, a hiring system that seemed rigged because it departed from the usual procedures in unprecedented fashion, or an obviously less qualified woman getting hired. Mills v. Health Care Serv. Corp., 171 F.3d 450, 455 (7th Cir. 1999).
(a) Search and Screen Committee
Dr. Westrate first challenges the Search and Screen Committee's composition: he says it was "fishy" that the Committee was comprised of two women and one man. IUSB insists no discrimination can be inferred from the make-up of the Committee. According to IUSB, the Committee members were selected and appointed by a male — Patrick Furlong, chairman of the history department — and the Committee's list of ten finalists for the position at issue consisted of six male and four female candidates.
Dr. Westrate hasn't challenged IUSB's claims in this regard and, thus, hasn't demonstrated a "power structure composed almost entirely of women." Dr. Westrate's conclusory statement that the makeup of the Committee was "fishy" doesn't demonstrate an inclination by IUSB to discriminate against men or constitute evidence of gender discrimination.
(b) Letter of Committee Member Margarete Feinstein
Dr. Westrate next notes that the opening for the one-year position in Modern European History was to replace Committee member Margarete Feinstein, who was taking a leave of absence. Dr. Westrate quotes from a letter in which Professor Feinstein stated she believed Dr. Elder's training in Central European History would "prevent overlap with the specialization of other department members" and help "to insure some continuity and emphasis for [her] students in European History classes." Dr. Westrate claims Professor Feinstein's statement demonstrates that she "was looking out for `her students' and had zeroed in on who she wanted to replace her as opposed to looking for the best candidate."
Assuming the truth of Professor Feinstein's statements — that she was looking out for her students and felt Dr. Elder's training would provide some continuity for the students and the history department — Dr. Westrate hasn't argued or pointed to evidence that Ms. Feinstein's statement demonstrates gender discrimination, nor has he offered any explanation about how her statement constitutes evidence of a background circumstance that provides a reason to presume discrimination.
(c) Chairperson of Committee
Dr. Westrate asserts as another "fishy" consideration the fact that no one on the Search and Screen Committee "seemed to know who was chairman." As evidence, he first points to Professor Tetzlaff's deposition testimony that she didn't recall who headed the Committee and said it could have been her or Dr. Nashel. He next notes Dr. Furlong's deposition statement that he asked someone to chair the committee but couldn't remember who that was. Dr. Westrate lastly notes that the defendants stated in their motion for a protective order that Professor Tetzlaff was the Committee chair.
IUSB says in response that "[c]ertainly the University cannot be faulted because two witnesses honestly testified that they cannot recall a particular fact that occurred two years ago in a routine search and screen committee process." The court must agree. Dr. Westrate hasn't offered any explanation of how confusion about the identity of the Committee chair demonstrates, or is evidence of, an inclination or reason to engage in gender discrimination.
(d) Committee Guidelines
Dr. Westrate claims the Committee didn't follow the University's guidelines for filling academic positions. Dr. Westrate says that pursuant to IUSB's Search and Screen Process, "[i]t is the responsibility of the search and screen committee chairperson to insure, in so far as possible, that the dossiers of all applicants are complete. If dossiers are incomplete, efforts should be made to communicate to applicants the nature of the deficiencies." He adds that based on the Academic Search and Screen Checklist, it is the job of the Committee chair "to make sure dossiers are complete." Dr. Westrate complains that no one from the Committee contacted him about his dossier.
IUSB responds that the Committee had no reason to contact Dr. Westrate because his dossier was complete: "It was not impressive, but it included three reference letters and was, thus, complete." Professor Tetzlaff offered the following testimony about the Committee's actions in this regard:
Q You felt Dr. Westrate's dossier was incomplete?
A No.
Q You didn't feel it was incomplete?
A No.
Q Well, you said his letters of recommendation were not recent enough? A Correct.
Q Was any attempt made to say to him we need more recent letters of recommendation? A No.
Q Is there some reason why that didn't happen?
A We did not notify any of the candidates about letters not being up-to-date. We only notified them if they did not have three letters in their file.
Tetzlaff Dep., at 13.
Dr. Westrate contends that if the Committee felt his recommendation letters were outdated, Dr. Furlong should have gone into the University's files and obtained copies of additional and/or other evaluation letters. According to Dr. Westrate, "[i]f [Dr. Furlong] needed my assistance to go into his own files to get those evaluations, I certainly would have given it to him." Dr. Westrate claims the Committee "certainly went to great pains to avoid looking at the evidence which was in their own files."
Applicants for the Modern European History position were required to submit a letter of application, a curriculum vita, transcripts, and three letters of recommendation. Dr. Westrate doesn't claim his dossier was incomplete, and while he faults the Committee for not searching out newer recommendation letters for him, this cannot, without any allegation or evidence that they did so for other applicants, demonstrate that the Committee failed to follow University Guidelines, departed from its usual procedures in some unprecedented fashion, or engaged in gender discrimination. Cf. Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 745 (7th Cir. 2002) ("The real issue here is that Brummett wanted the [defendant] to cut him more slack and to arrange creative long-term solutions to his . . . dilemma. However, the [defendant] was under no obligation to bend over backwards to assist its employees with their job-related difficulties, especially difficulties caused by their own wrongdoing.").
(e) Qualifications of Person Hired
Dr. Westrate lastly claims that Dr. Sace Elder, the person hired for the position he sought, "was clearly less qualified." In support, he relies on his own deposition testimony that Dr. Elder "was completely focused on Europe, and basically on one country in Europe. I am much more widely educated and read than she is, prepared to teach a wide variety of classes. She is going to teach World History with basically no prudential background in any of that stuff." Dr. Westrate's subjective self-appraisal can't by itself create a genuine issue of fact. Dunn v. Nordstrom, Inc., 260 F.3d 778, 787 (7th Cir. 2001). Dr. Westrate's reliance on his own deposition testimony, without more, is insufficient to establish that a less qualified woman was hired or that IUSB had a reason or an inclination to engage in gender discrimination. See Millbrook v. IBP, Inc., 280 F.3d 1169, 1178 (7th Cir. 2002) ("The comparison evidence is so weak in the circumstances that it cannot by itself support an inference of discrimination — and there is virtually nothing else.") ( quoting Lindale v. Tokheim Corp., 145 F.3d 953, 957 (7th Cir. 1998)).
(f) Conclusion
Dr. Westrate hasn't carried his burden of establishing the first element under the modified prima facie test: he hasn't demonstrated anything "fishy" that would suggest the Committee had a reason or was inclined to discriminate against males, and he hasn't set forth "background circumstances" or evidence sufficient to support a finding that IUSB engaged in gender discrimination in connection with the hiring process here at issue.
B. Pretext
IUSB says, in the alternative, that even if Dr. Westrate could establish a prima facie case of gender discrimination, the University has a legitimate non-discriminatory reason for its hiring decision. IUSB maintains its decision to not hire Dr. Westrate was based on his lack of credentials in the relevant field of Modern European History. In support, IUSB submits Search and Screen Committee Member Monica Tetzlaff's deposition testimony about the Committee's reasons for not recommending Dr. Westrate for the position:
IUSB also says that regardless of Dr. Westrate's qualifications, it wouldn't have hired him because Patrick Furlong had questions about Dr. Westrate's ethics. The record contains two bases for judgment to IUSB on the discrimination claim, so the court needn't consider that additional reason.
The first reason was that his field was somewhat outside of European history. Specifically, that we were looking for someone to teach European history courses. He had not taught European history courses. . . . Another reason was that we were looking for excellence in teaching. And I did not see ample evidence of that in comparison to other candidates. Professor Tetzlaff also stated that Dr. Westrate's recommendations weren't up-to-date and his teaching experience wasn't in the field IUSB was looking for.
According to IUSB, Dr. Elder was selected because she, unlike Dr. Westrate, was credentialed in Modern European History, and she, unlike Dr. Westrate, had impressive, recent recommendations. IUSB notes Dr. Elder's qualifications included a B.A., summa cum laude, and M.A., with her major field being Europe; a Ph.D. in Modern Europe; and experience in teaching European and other history subjects (seminar in "Crime and Punishment in Modern Europe;" lecturer in "History of Europe Since 1939;" teaching and writing assistant in "Western Civilization to 1688" and "Western Civilization Since 1688;" instructor in "World Civilizations to 1500" and "World Civilizations Since 1500"). IUSB points to the Professor Tetzlaff's testimony about Dr. Elder's selection:
Miss Elder had glowing recommendations from very highly respected faculty in the area of modern Europe, very recent and up-to-date. She showed that she had taught European history. She showed various ways that she could teach it through syllabi. She showed other evidence of her teaching. The letters spoke highly and in great detail of her teaching. She spoke of her teaching in her own letter. And we felt that her field was perfect for the fit of our department, because she did modern continental Europe, Germany, to be specific.
Tetzlaff Dep., at 16-17.
In conclusion, IUSB says its decision to not hire Dr. Westrate for the faculty teaching position in Modern European History wasn't based on his gender, but was based on the fact that he didn't have credentials in Modern European History and, therefore, wasn't the best qualified candidate for the position.
Because IUSB has come forward with a legitimate and non-discriminatory reason for its actions, the court assumes (in this alternative analysis) Dr. Westrate has satisfied the requirements of a prima facie case and turns to whether he has demonstrated that the University's proffered reason is a pretext for discrimination. See United States Postal Serv. Bd. Of Governors v. Aikens, 460 U.S. 711, 715 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.");Debs v. Northeastern Illinois Univ., 153 F.3d 390, 396 (7th Cir. 1998) ( citing Aikens). Dr. Westrate may prove pretext via direct evidence or indirectly by showing that IUSB's explanation "had no basis in fact," "was not the `real' reason," or "was insufficient to warrant the [hiring decision]." Dunn v. Nordstrom, Inc., 260 F.3d 778, 788 (7th Cir. 2001).
Dr. Westrate hasn't addressed IUSB's pretext argument, nor has he argued that its proferred reason for the hiring decision is not credible. Dr. Westrate's submissions include (1) his Curriculum Vita, which shows that he has a B.A., M.A., and Ph.D., in the field of British Empire and Commonwealth, and he has taught American History, Russian and East Asian History, Modern Middle East History, World History, and Modern African History; (2) his opinion that he has more teaching experience in world history, the ability to teach different and varied courses, excellent evaluations with IUSB, a book with international acclaim, and work on additional scholarly materials; and (3) his own deposition testimony, which he says establishes that he "was passed over despite superior qualifications." Dr. Westrate's own opinions about his work performance or qualifications, though, "do not sufficiently cast doubt on the legitimacy of [his] employer's proffered reasons for its employment actions."Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7th Cir. 2002). To establish pretext, Dr. Westrate must present more than his own subjective self-appraisal to create a genuine issue of fact.Dunn v. Nordstrom, Inc., 260 F.3d 778, 787 (7th Cir. 2001); cf. Lake v. Fairview Nursing Home, Inc., No. 96C8546, 1997 WL 619834, at *4 (N.D. Ill. Sept. 12, 1997) (plaintiff's suspicion of discrimination — "because she is black and they are white" — doesn't create a genuine issue).
"Where an employer's proffered non-discriminatory reason for its employment decision is that it selected the most qualified candidate, evidence of the applicants' competing qualifications does not constitute evidence of pretext `unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue.'" Millbrook v. IBP, Inc., 280 F.3d at 1180. Thus, Dr. Westrate can't rely on mere allegations of discrimination, but must present "definite, competent evidence" to support his position, Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001), and "supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). He hasn't done so. Dr. Westrate hasn't pointed to evidence sufficient to establish that IUSB's actions relating its hiring decision for the Modern European History position were a pretext for unlawful gender discrimination. See Hudson v. Chicago Transit Authority, 375 F.3d 552, 562 (7th Cir. 2004) ("Even if the CTA decision-makers made the wrong decision with regard to the more qualified employee, Hudson still would need to show that the stated reasons were lies, offered to cover their discriminatory motives.").
IUSB's posted job opening was for a "Visiting Assistant Professor, Modern European History," to teach "a survey of modern Europe since 1815, a thematic introductory course on twentieth-century world history, and advanced courses on twentieth-century Europe." As IUSB notes, Dr. Westrate's area of emphasis — British Imperial History — wasn't mentioned in the job posting. "In determining which individual was better qualified to occupy the [faculty] position, [IUSB] was required to make a calculated business decision by weighing the relative merits and deficiencies of [the] candidates." Dunn v. Nordstrom, 260 F.3d at 787. Dr. Westrate hasn't argued or come forth with evidence sufficient to establish that IUSB's preference for a candidate with a background in European History to teach courses in European History was "a lie, specifically a phony reason,"Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995), completely lacking a basis, Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000), or "unworthy of credence, thus raising the inference that the real reason is discriminatory." Essex v. United Parcel Serv., 111 F.3d 1304, 1309 (7th Cir. 1997).
Dr. Westrate hasn't presented evidence tending to discredit IUSB's statements about the selection process, or calling into question the University's belief that he wasn't the most qualified candidate for the Modern European History teaching position. See Davis v. Con-Way Transport. Central Express, Inc., 368 F.3d 776, 784 (7th Cir. 2004) ("The focus of a pretext inquiry is whether the employer's stated reason was honest, not whether it was accurate, wise, or well-considered."); Green v. National Steel Corp., 197 F.3d 894, 899 (7th Cir. 1999) ("regardless of whether it is correct in its beliefs, if an employer acted in good faith and with an honest belief, we will not second-guess its decisions"). Courts cannot impose on employers their own ideas of what constitutes a prudent business decision; they "can assess only the question [of] whether an employer has taken an action for a forbidden reason." Leonberger v. Martin Marietta Materials, Inc., 231 F.3d 396, 399 (7th Cir. 2000); see also Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000) ("We do not sit as a super personnel department that reexamines an entity's business decision and review the propriety of the decision. Our only concern is whether the legitimate reason provide by the employer is in fact the true one."). The court must determine on summary judgment whether Dr. Westrate has produced evidence from which a fact-finder could infer that IUSB lied about the reason for its action relating to the Modern European History position. Hudson v. Chicago Transit Authority, 375 F.3d 552, 562 (7th Cir. 2004). He has not. The University is entitled to summary judgment on Dr. Westrate's gender discrimination claim.
COUNT 2 — DEFAMATION
Dr. Westrate alleges in Count 2 of his amended complaint that IUSB and Patrick Furlong engaged in defamation in violation of Indiana law. In any civil action in which the court has original jurisdiction, 28 U.S.C. § 1367 provides that the court shall have "supplemental jurisdiction over all other claims that are so related to claims in the action within original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." The court may, and generally should, relinquish supplementary jurisdiction over state law claims when all federal claims are dismissed before trial. See 28 U.S.C. § 1367(c)(4); Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294, 300 (7th Cir. 2003) (discussing general rule that when federal claims have been dismissed before trial, district court should relinquish jurisdiction over state claims); Groce v. Eli Lilly Co., 193 F.3d 496, 500-502 (7th Cir. 1999) (same). That course is appropriate here.
The deadline for the completion of discovery has passed, but there appears to be no reason why further discovery would be needed in a state action. Dismissal of Dr. Westrate's state law claim will delay its resolution somewhat, but will not require replication of preparation for trial. State law claims against a state university and a university employee are best left for determination in a state court. Therefore, having granted summary judgment on the federal claims, the court will dismiss Dr. Westrate's state law claims.
CONCLUSION
Based on the foregoing, the court
(1) GRANTS the defendants' motion for summary judgment [docket # 16] as to the claims contained in Count I of the amended complaint and DENIES the summary judgment motion with respect to Count II; and
(2) DISMISSES the claims contained in Count II of the amended complaint.
SO ORDERED.