Norman-Nunnery v. Madison Area Technical College

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1757

JUDY R. N ORMAN-N UNNERY,

Plaintiff-Appellant,

v.

M ADISON A REA T ECHNICAL

C OLLEGE, C AROL B ASSETT,

W ILLIAM STRYKER and

JACKIE T HOMAS,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08-C-0320-C—Barbara B. Crabb, Judge.

A RGUED S EPTEMBER 22, 2009—D ECIDED N OVEMBER 8, 2010

Before E ASTERBROOK, Chief Judge, and B AUER and

R OVNER, Circuit Judges.

R OVNER, 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

2 No. 09-1757

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 defen-

dants, 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 man-

agement positions in education and in state govern-

ment, including as vocational education coordinator for

the Milwaukee Public Schools, administrator for the

Department of Health and Human Services, and adminis-

trator for the Workers’ Compensation Division and the

Division of Vocational Rehabilitation in the State’s De-

partment of Workforce Development. She is married to

Willie Nunnery, a lawyer. In 2000, Mr. Nunnery repre-

sented 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 docu-

ments 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

No. 09-1757 3

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 nomi-

nated four internal candidates for the position. Nothing

in the record suggests that Thomas had any other in-

volvement in the hiring process for the Executive Dean

position. Although Norman-Nunnery passed the initial

screening process for applicants, she was not inter-

viewed 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 indi-

vidual 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 Ad-

ministrator”). 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 dis-

4 No. 09-1757

cussing the job with Wynn and Fujimoto, Norman-Nun-

nery 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 ad-

ministrative 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 pro-

grams 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 suc-

cess 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

No. 09-1757 5

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 Admin-

istrator, led a training session with the newly-formed

committee to establish “depth and breadth” screening

criteria for the DRS Administrator position. The com-

mittee 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 accommoda-

tions in an educational setting (three points).

After the depth-and-breadth criteria were established,

each committee member independently scored each of

1

There appears to be some disagreement in the record over

when Higgans joined the committee. According to the defen-

dants, Stryker originally filled the role of EEO representative

on the committee and he was present for the initial training

session at which the depth-and-breadth criteria were deter-

mined. Higgans took his place on the committee after

receiving training on the criteria, prior to scoring any of the

candidates. The plaintiff does not allege that Stryker took any

wrongful actions during his brief time on the committee and

so the dispute is immaterial to the issues presented.

6 No. 09-1757

the forty-six candidates who had been found minimally

qualified. The committee then met to discuss each candi-

date 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

No. 09-1757 7

depth-and-breadth categories for higher education and

experience with persons with disabilities. Stryker then

arranged a second meeting to address Fujimoto’s con-

cerns. 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 experi-

ence 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 ques-

tioned 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 crite-

ria. When Stryker asked if anyone believed that discrim-

ination had played a part in the interview selection pro-

cess, 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 cate-

gories, 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

8 No. 09-1757

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 as a Rehabilitation

Counselor for adults with developmental disabilities or

mental illness, and a good working knowledge of assistive

technologies, particularly in the setting of students in

higher education.

Before Norman-Nunnery applied for the DRS Adminis-

trator position, Bassett and Stryker did not know any

“Nunnerys” in Madison, Wisconsin other than Willie

Nunnery. Bassett conducted the initial screening of

the applicants and so she was aware that there was a

candidate who shared, in part, the same last name as

the lawyer who had filed a frivolous suit against her. At

some point, possibly during the meeting with Fujimoto

to discuss Norman-Nunnery’s application, Bassett

became aware that Norman-Nunnery is married to Willie

Nunnery. She discussed this realization with Thomas

and Stryker, although the record does not establish a

definitive time frame for these discussions. All of the

defendants were aware that Willie Nunnery is African-

American. There is no other evidence in the record

that anyone knew that Norman-Nunnery is African-

American until Higgans retrieved the EEO sheet that

listed the race of the applicants.

Fujimoto, as the college’s Diversity Coordinator

and Affirmative Action Officer, was responsible for

No. 09-1757 9

reporting on MATC’s affirmative action hiring and re-

tention efforts. In his research for the report, Fujimoto

determined that, for the ten-year period between 1995

and 2005, six to seven percent of the administrators at

the college were persons of color. This represented a

decrease from the prior ten-year period. After con-

ducting a “non-experimental study,” Fujimoto concluded

that race affected the college’s hiring decisions on a

structural level because the depth-and-breadth system

favored insiders.2 In the area of faculty hiring, for

example, 65% of full-time positions were filled from the

pool of part-time staff. This had a disparate impact on

minority candidates because 95% of the part-time

faculty was white.

After she was not offered an interview for the DRS

Administrator position, Norman-Nunnery filed a charge

of race discrimination in the Equal Rights Division of

the Wisconsin Department of Workforce Development

(hereafter “ERD”). After filing her claim, MATC dis-

covered that certain documents pertaining to the hiring

process for the DRS Administrator position were

2

Norman-Nunnery characterizes Fujimoto’s study as “non-

experimental.” The record does not tell us what this term

means to the parties. We take it to mean that Fujimoto’s

study was conducted without the use of controls and was

instead based on observation of past events. Such a study

typically can establish a correlation between two factors but

not necessarily a cause-and-effect relationship. The analysis

of the claim is the same regardless of how the study was

conducted.

10 No. 09-1757

missing. Twenty-five of the original seventy-seven ap-

plications had been lost, including Norman-Nunnery’s.

Thomas’ screening form, which included the consensus-

based depth-and-breadth scores for the minimally quali-

fied candidates was also lost. The depth-and-breadth

scoring forms of the other four committee members

were found and produced, as was Bassett’s screening

form for minimal qualifications.

Ultimately, Norman-Nunnery filed suit in federal court

against MATC, Bassett, Stryker and Thomas. She

alleged that the defendants violated Title VII and the

Fourteenth Amendment when they precluded her

from entering into an employment contract because of

her race or because of her association with her husband,

that they violated 42 U.S.C. § 1981 and the Fourteenth

Amendment by discriminating against her in the terms

and conditions of pursuing the DRS Administrator job,

and that they violated her rights under the First and

Fourteenth Amendments by retaliating against her

because of her marital association with Willie Nunnery.

The district court granted summary judgment in favor

of the defendants because Norman-Nunnery offered no

evidence from which a rational jury could conclude

that race or marital status motivated the defendants’

decision not to hire her. She appeals.

II.

On appeal, Norman-Nunnery argues that she is

entitled to an inference under the spoliation doctrine

that the missing documents would have favored her

No. 09-1757 11

claims of race discrimination and marital association

retaliation. She contends that she produced adequate

evidence that the defendants knew her race from the

beginning of the hiring process, that they were

motivated by race and dislike for her husband in

deciding not to interview or hire her, and that the record

is replete with evidence that the defendants’ stated

reasons for not hiring her were pretextual. Our review

of the district court’s grant of summary judgment is

de novo. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.

2009); George v. Walker, 535 F.3d 535, 538 (7th Cir. 2008).

A.

The first issue is whether Norman-Nunnery is entitled

to an inference that the missing documents would

support her claims for discrimination and marital associa-

tion retaliation. “An employer’s destruction of or

inability to produce a document, standing alone, does not

warrant an inference that the document, if produced,

would have contained information adverse to the em-

ployer’s case.” Park v. City of Chicago, 297 F.3d 606, 615

(7th Cir. 2002). In order to draw an inference that the

missing documents contained information adverse to

the defendants, Norman-Nunnery must demonstrate

that the defendants intentionally destroyed the docu-

ments in bad faith. Faas v. Sears, Roebuck & Co., 532 F.3d

633, 644 (7th Cir. 2008); Park, 297 F.3d at 615. The

crucial element in a spoliation claim is not the fact that

the documents were destroyed but that they were de-

stroyed for the purpose of hiding adverse information.

12 No. 09-1757

Faas, 532 F.3d at 644; Trask-Morton v. Motel 6 Operating L.P.,

534 F.3d 672, 681 (7th Cir. 2008). Some courts have found

a spoliation sanction to be appropriate only where a

party has a duty to preserve evidence because it

knew, or should have known, that litigation was im-

minent. Trask-Morton, 534 F.3d at 681. See also Park, 297

F.3d at 615 (a violation of a record retention policy

creates a rebuttable presumption that the missing record

contained evidence adverse to the violator).

Norman-Nunnery fails on every element of the test for

the spoliation inference. First, the documents disap-

peared before Norman-Nunnery filed any claim against

MATC and the individual defendants. Thus, the docu-

ments were lost before MATC knew or should have

known that litigation was imminent. Second, Norman-

Nunnery has offered no evidence that the defendants

lost or destroyed the documents for the purpose of

hiding adverse information. Between the time Norman-

Nunnery applied for the job and the filing of her claim

of discrimination, MATC moved its human resources

department twice due to office remodeling. Each time,

all of the records in the office were boxed up and

moved. At the time Norman-Nunnery applied for the

DRS Administrator position, MATC still used paper

applications. MATC’s paper filing system left something

to be desired. The stack of papers awaiting filing in

the human resources office sometimes reached three feet

in height. No single individual was responsible for

filing; various human resources employees filed applica-

tions and other paperwork, including student employ-

ees. After the moves, MATC was unable to locate twenty-

No. 09-1757 13

five of the original seventy-seven applications, in-

cluding Norman-Nunnery’s. Although Thomas’s depth-

and-breadth screening form, which contained the con-

sensus scores, was missing, the scoring forms of the

other four committee members were located and

produced, along with Bassett’s screening for minimal

qualifications. MATC also located and produced the

written applications of fifty-two candidates, including

the application submitted by Hall, the person hired for

the job. It is unclear from the record whether Norman-

Nunnery kept a copy of the application she submitted,

but the last person at MATC who could account for the

whereabouts of Norman-Nunnery’s application was

Fujimoto. He had Norman-Nunnery’s application with

him when he met with Stryker, Bassett and Thomas. At

the end of that June 2005 meeting, he returned Norman-

Nunnery’s application to the human resources depart-

ment. Between June 2005 and December 2005, the

human resources files were boxed up and moved twice.

Norman-Nunnery filed her claim against MATC and

the individual defendants in April 2006.

As evidence of the defendants’ bad faith, Norman-

Nunnery points out that two witnesses could not recall

hiring documents being lost prior to this occasion. She

also asserts that MATC constantly shifted its story

about what happened to the missing documents, first

claiming that Fujimoto had them, then simply claiming

that her application was missing, then claiming to have

lost the documents in an office move and then claiming

to have lost the documents in two office moves. That

documents had not been lost before implies nothing in

14 No. 09-1757

and of itself. And MATC never changed its explanation

but simply supplied more information over time. For

example, MATC never stated that Fujimoto had the

missing documents. Rather, a lawyer for MATC stated

in a letter:

The complainant’s application materials were with

Eugene Fujimoto when he investigated her concerns.

Mr. Fujimoto has left the College and her material

is not available.

R. 42, Ex. S, at 2. Although one reading of the letter implies

that Fujimoto took the papers with him when he left the

College, each part of the statement is literally true.

Fujimoto was the last person known to have the papers.

Although he stated that he returned them to the human

resources department, no one has been able to find them

since that time. Thus, Norman-Nunnery’s material is

not available. Stating simply that the documents

were missing is also true and implies nothing. Because

Norman-Nunnery did not file her claims until after the

documents had been moved twice in the office

remodeling project, and because no one had any reason

to look for the documents between the two moves,

it is not surprising that the defendants are not able to

pinpoint when the documents were lost. In light of the

undisputed circumstances of the office moves, there is

nothing suspicious about the defendants’ inability to

say when or how the documents disappeared. Norman-

Nunnery’s conclusory statements to the contrary, there

is simply no evidence supporting a bad faith motive on

the part of the defendants in the disappearance of the

documents.

No. 09-1757 15

Moreover, although the consensus scoring sheet was not

found, the scoring sheets of four of the five committee

members were located. These documents supplied a

good part of the information used in reaching the con-

sensus scores. If the scoring sheets of four out of five

committee members do not support Norman-Nunnery’s

claims, it is highly unlikely that the missing fifth docu-

ment contains information adverse to the defendants.

Presumably Norman-Nunnery knew what was on her

own application and Fujimoto also could have testified

about the contents of her application as he was the

last person in possession of it. Norman-Nunnery has

presented no evidence suggesting an intent on the part

of the defendants to hide adverse information. Because

there is no evidence that any of the defendants destroyed

the documents in bad faith, Norman-Nunnery is not

entitled to a favorable inference under the spoliation

doctrine.

B.

The district court found that Norman-Nunnery’s

claims for race and marital association discrimination

failed at the outset because she produced no evidence

that any of the relevant decision-makers knew her race

or marital status at the time she was eliminated from

the pool of candidates to be interviewed. The court

also found that Norman-Nunnery failed to demonstrate

that the defendants’ stated non-discriminatory reason

for not hiring her—that she scored lower than the

other candidates in the depth-and-breadth criteria—was

16 No. 09-1757

a pretext. We think the question of whether the

defendants knew Norman-Nunnery’s race or marital

association is a closer call than the district court’s opinion

reflects. For example, Bassett admits she drew a connec-

tion between Willie Nunnery and Norman-Nunnery at

some point and discussed this connection with the other

defendants, although the record does not tell us when

she made the connection or when she discussed it with

the other defendants. Thomas chaired the depth-and-

breadth committee and was to be the direct supervisor

of the new DRS Administrator. Bassett, Thomas and

Stryker had all been sued by Willie Nunnery in the

Jimenez case. A person is unlikely to quickly forget

being falsely sued for racial discrimination, and any

mention of Nunnery’s fairly unusual name would

probably have attracted the attention of these three de-

fendants. On summary judgment, when we must

construe the facts in favor of Norman-Nunnery, we are

reluctant to find that there is no genuine issue

regarding whether and when the defendants were

aware of her race and marital association. A reasonable

fact-finder could infer from these highly unusual facts

that the defendants knew Norman-Nunnery is African-

American and that she is married to Willie Nunnery.

In the end, though, this dispute is irrelevant because

Norman-Nunnery cannot show that the defendants’ non-

discriminatory reason for refusing to hire her is pretext.

Nor can she demonstrate causation on her claim for

marital association retaliation.

No. 09-1757 17

1.

Norman-Nunnery contends that she has direct evi-

dence of race discrimination and that she can also

defeat summary judgment using the McDonnell Douglas

burden-shifting analysis. We begin with her direct evi-

dence. Norman-Nunnery contends that Fujimoto’s

study of MATC’s hiring practices and the suspicious cir-

cumstances surrounding the missing documents both

supply direct evidence of discriminatory intent. As

we discussed above, there is nothing suspicious about

the loss of certain documents in the two office moves

that took place between the time the hiring process

was underway and the time Norman-Nunnery first

complained of discrimination. Nor does Fujimoto’s non-

experimental study aid her case. Fujimoto’s study con-

cluded only that MATC’s use of the depth-and-breadth

criteria tended to favor inside candidates, which had

the effect of favoring non-minority candidates. But

Norman-Nunnery must show that it is more likely than

not that she was harmed by discriminatory acts. A study

showing that certain hiring practices correlated with

a negative effect on minority hiring, although relevant,

will not by itself meet the “more likely than not”

standard for a claim of discrimination against an indi-

vidual plaintiff. Baylie v. Federal Reserve Bank of Chicago,

476 F.3d 522, 524 (7th Cir. 2007).

Statistical analysis is relevant in the technical sense

that it “has a tendency to make the existence of [a

material] fact . . . more probable or less probable

than it would be without the evidence.” Fed.R.Evid.

18 No. 09-1757

401. But data showing a small increase in the prob-

ability of discrimination cannot by itself get a plaintiff

over the more-likely-than-not threshold; it must be

coupled with other evidence, which does most of

the work.

Baylie, 476 F.3d at 524. See also Nichols v. Southern Illinois

University-Edwardsville, 510 F.3d 772, 782 (7th Cir. 2007)

(“a plaintiff may use pattern evidence of disparate treat-

ment even if that evidence is not rigorously statistical,

although, standing alone, it is insufficient evidence to

withstand summary judgment”); Barricks v. Eli Lilly &

Co., 481 F.3d 556, 559 (7th Cir. 2007) (noting the

importance of further analysis and context when relying

on raw data in employment discrimination disputes).

Norman-Nunnery has no other direct evidence of dis-

crimination. Therefore, she must make her claim, if at all,

under the McDonnell Douglas burden shifting analysis.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

02 (1973).

Under the burden shifting analysis, a plaintiff must

first establish a prima facie case of hiring discrimination by

demonstrating:

(i) that he belongs to a racial minority; (ii) that he

applied and was qualified for a job for which the

employer was seeking applicants; (iii) that, despite his

qualifications, he was rejected; and (iv) that, after his

rejection, the position remained open and the em-

ployer continued to seek applicants from persons of

complainant’s qualifications.

No. 09-1757 19

McDonnell Douglas, 411 U.S. at 802; O’Neal v. City of New

Albany, 293 F.3d 998, 1003 (7th Cir. 2002); Senner v.

Northcentral Technical College, 113 F.3d 750, 754-55 (7th

Cir. 1997). To withstand summary judgment on the prima

facie case, the plaintiff need only show that there is a

genuine issue of material fact regarding these elements.

O’Neal, 293 F.3d at 1003. If the plaintiff establishes a

prima facie case, the burden shifts to the defendant to

articulate a legitimate, non-discriminatory reason for not

hiring the plaintiff. McDonnell Douglas, 411 U.S. at 802;

O’Neal, 293 F.3d at 1005; Senner, 113 F.3d at 755.

Normally, we first determine whether a plaintiff has

established a prima facie case before putting the em-

ployer to the burden of demonstrating a non-discrim-

inatory reason for not hiring the plaintiff and engaging

in the pretext analysis. Everroad v. Scott Truck Systems,

Inc., 604 F.3d 471, 477 (7th Cir. 2010).

In some cases, though, the issue of qualifications for

the job and the question of pretext overlap. When the

employer asserts as the non-discriminatory reason for not

hiring the plaintiff that she was not as qualified as other

candidates for the position, the credibility of the em-

ployer’s assertion is at issue for both the second and

fourth elements of the plaintiff’s prima facie case and the

pretext analysis. Everroad, 604 F.3d at 477-78. There is

a good deal of overlap in this case between these key

issues and we therefore analyze them together.

There is no dispute that Norman-Nunnery belongs to

a racial minority or that she met the minimal qualifica-

tions for the job. Nor is there any dispute that she was

20 No. 09-1757

not chosen for the job, and MATC then continued to

seek applicants from the pool of other qualified can-

didates. But MATC had a large number of minimally

qualified candidates and sought to select from that

larger pool the candidates who were most qualified for

the job to proceed to the next phase of the hiring pro-

cess. MATC has proffered as its legitimate, non-discrim-

inatory reason for not interviewing or hiring Norman-

Nunnery that she scored lower on the depth-and-

breadth criteria than the applicants who advanced to

the interview stage. She also had lower scores than the

person ultimately hired for the position. The numerical

evaluation system the college developed to screen appli-

cants meets the employer’s burden to state a non-discrimi-

natory reason for refusing to hire Norman-Nunnery.

Senner, 113 F.3d at 755. The burden therefore shifts back

to Norman-Nunnery to produce evidence from which

a reasonable fact-finder could conclude that MATC’s

stated reason was a pretext. Senner, 113 F.3d at 755.

The district court was correct that Norman-Nunnery

has presented no evidence calling into question the sin-

cerity of the non-discriminatory reason the defendants

gave for not interviewing or hiring Norman-Nunnery. As

evidence of pretext, Norman-Nunnery first cites MATC’s

shifting explanation for the disappearance of important

documents. As we discussed above, there is nothing

suspicious about MATC’s explanation for the disappear-

ance of the documents. Norman-Nunnery next cites

Fujimoto’s study. But we have already determined that

statistical data, although relevant, cannot alone meet

the “more likely than not” standard for a specific

No. 09-1757 21

hiring decision about an individual. Without context,

Fujimoto’s study sheds little to no light on whether race

played a part in this particular employment decision. In

context, the undisputed facts demonstrate that MATC

purposely sought to increase the number of minority

candidates who would advance to the interview phase

of the hiring process. In addition to the African-

American woman who scored high enough on the depth-

and-breadth criteria to be included in the original pool

of ten interview candidates, the committee also selected

the next two highest scoring minority candidates to

be interviewed.

At every stage of the process, MATC applied the same

criteria to each candidate, and Norman-Nunnery has no

evidence to the contrary. The depth-and-breadth

criteria were established by a committee before any

applications were reviewed, so any suggestion that the

criteria were rigged to exclude Norman-Nunnery fails

for lack of evidence. That Wynn and Fujimoto thought

Norman-Nunnery was qualified for the job does not

advance her cause. Each spoke to Norman-Nunnery

before the depth-and-breadth criteria were established

and neither man was involved in the process of com-

paring the applications of all of the minimally qualified

applicants. 3 Thus neither could say whether Norman-

3

Fujimoto testified that he compared Norman-Nunnery’s

application to those of the applicants chosen for interviews.

After that review, Fujimoto argued to Stryker, Thomas and

Bassett that Norman-Nunnery’s qualifications were not

(continued...)

22 No. 09-1757

Nunnery’s application was comparatively better (or

worse) than the candidates who advanced to the inter-

view process. Nor is it significant that the defendants

refused to stray from the depth-and-breadth criteria

when asked to do so by Fujimoto. Refusing to give

Norman-Nunnery an advantage that no other candidate

had is not evidence of discrimination. In short, after

reviewing the evidence cited by Norman-Nunnery, we

find no evidence supporting her claim of pretext. The

district court correctly granted judgment in favor of

the defendants on her claim of racial discrimination in

hiring.

2.

Norman-Nunnery also claims that the defendants

failed to hire her because of their animosity toward her

husband, Willie Nunnery. She frames this as a claim

for “marital association retaliation.” We take Norman-

Nunnery’s claim to be not that the defendants discrimi-

nated against her because she was married in general

but because she was married to Willie Nunnery in par-

ticular. Norman-Nunnery relies in part on Christensen

v. County of Boone, Illinois, 483 F.3d 454 (7th Cir. 2007).

3

(...continued)

obvious from the face of her application but would become

apparent if they interviewed her. This contention demonstrates

a belief by Fujimoto that Norman-Nunnery’s application

compared unfavorably on its face to those of the candidates

who advanced.

No. 09-1757 23

There, we held that the Due Process Clause of the Four-

teenth Amendment protects a non-marital, romantic

relationship against direct and substantial interference

by the government. 483 F.3d at 463. We emphasized that,

although the “Constitution prevents fundamental rights

from being aimed at,” it does not “prevent side effects

that may occur if the government is aiming at some other

objective.” 483 F.3d at 463. Moreover, we noted that

“[o]fficial conduct that represents an abuse of office (as

opposed to, say, the implementation of a statutory duty)

violates the substantive component of the due process

clause only if it ‘shocks the conscience.’ ” Christensen,

483 F.3d at 464.

Norman-Nunnery also cites Adler v. Pataki, 185 F.3d 35

(2d Cir. 1999), where a public employee contended that

he was fired from his job in retaliation for a lawsuit

his wife filed against state officials. The Second Circuit

found that a claim that adverse action was taken against

a person in retaliation for the conduct of that person’s

spouse should be analyzed under the First Amendment,

as a violation of the right of intimate association. 185

F.3d at 44. The court noted that the plaintiff would be

required to demonstrate that his wife’s lawsuit was the

motivation for his discharge. 185 F.3d at 45-46.

Under either case, Norman-Nunnery’s claim cannot

survive summary judgment because she has failed to

provide any evidence that the defendants refused to

hire her because of her marriage to Willie Nunnery. Argu-

ably she has presented evidence that they were aware

she was married to Willie Nunnery and that they

24 No. 09-1757

harbored ill feelings toward him. But she has presented

no evidence that they were motivated by their animosity

toward Willie Nunnery in passing her over for the

job. To the contrary, all of the uncontroverted evidence

demonstrates that the candidates who advanced to the

interview stage and the candidate who ultimately was

hired all had depth-and-breadth scores that exceeded

those of Norman-Nunnery. The depth-and-breadth scores

were a legitimate, non-discriminatory criteria for distin-

guishing among the minimally qualified applicants.

Her claim thus fails for lack of evidence. The defendants

would prefer that we find that Norman-Nunnery’s

claim fails as a matter of law, that a public employer’s

refusal to hire a person because of animosity toward

that person’s spouse can never be actionable as a Con-

stitutional claim. Because Norman-Nunnery’s claim fails

for a lack of evidence, we need not decide whether the

claim is viable as a matter of law. We reserve that

question for the case in which it is clearly presented.

III.

Norman-Nunnery has no evidence that the defendants’

legitimate, non-discriminatory reason for not hiring her

is pretext. She is unable to demonstrate that the decision

not to interview or hire her was due to her race or her

marital association with Willie Nunnery. The judgment

of the district court is therefore

A FFIRMED.

11-8-10