Gore, John S. v. Indiana University

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2439

JOHN S. GORE,

Plaintiff-Appellant,

v.

INDIANA UNIVERSITY,

Defendant-Appellee.

____________

Appeal from the United States District Court for

the Northern District of Indiana, South Bend Division.

No. 3:02-CV-929—Robert L. Miller, Jr., Chief Judge.

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ARGUED JANUARY 3, 2005—DECIDED JULY 25, 2005

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Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.

WOOD, Circuit Judge. When there are three job openings

and a man fills the first position, it is an uphill battle for

another man to prove that his gender is the reason why he

was not selected. That is the task that John Gore faces in

this case. Although Gore is convinced that only invidious

reasons could explain Indiana University’s refusal to hire

him as a lecturer, he needs more than his own conviction.

The district court granted summary judgment for the

University on Gore’s claim of gender bias, and we agree

2 No. 04-2439

that he did not demonstrate any genuine issue of material

fact that would require a trial. We therefore affirm.

I

Gore began teaching entry-level communications courses

at the South Bend campus of Indiana University in 1998. In

September 2001, the University’s Communication Arts Area

posted openings for communications lecturers. Gore, who

had been working under a series of one-year contracts as an

adjunct lecturer, applied for one of these positions, seeking,

essentially, to keep his current job. In keeping with its

standard policy, the University created a committee to

review incoming applications. The committee consisted of

three men and two women. After reviewing the candidates,

the committee submitted to the University’s Affirmative

Action Officer (AAO) a list of six potential interviewees. The

list included four external candidates and two internal

candidates, one of whom was Gore. In the letter to the AAO,

the committee noted that it might need the internal

candidates to remain as “visiting” lecturers if more posi-

tions became available. “If they [were not] interviewed,” the

Committee wrote, “it could be an awkward situation.”

The AAO rejected this reason for including the internal

candidates on the list. Her reply to the committee stated:

“We are looking for the best candidates for one position—

the Communication Arts Lecturer position. The fact that

someone works at [the University] is not a valid reason for

wanting to include that person in the pool. . . . We ask that

you propose a list of the most qualified candidates [based]

upon objective job related criteria.” With this new directive,

the committee submitted three candidates to the AAO, a

man and two women. Gore was not on the list. After the

AAO approved this new set of candidates, the committee

interviewed all three and selected Alec Hosterman.

No. 04-2439 3

Hosterman, the only man interviewed, also happened to be

the other internal candidate from the committee’s original

interview list.

When a second lecturer position became available a few

months later, the committee returned to the broader pool of

candidates and selected Desrene Vernon. The hiring

committee chair explained in her deposition that the com-

mittee selected Vernon over Gore because Vernon had a

master’s degree in communications, the subject she would

be teaching. Gore had a master’s degree, but his was in

education leadership, not communications. The committee

offered the same rationale for hiring another woman in-

stead of Gore when a third position became available; she

had a master’s degree in communications, Gore did not.

Gore was upset that he had not been interviewed for any

of the three positions. After receiving a right-to-sue letter

from the Equal Employment Opportunity Commission, he

sued the University, alleging age and gender discrimina-

tion. The district court dismissed Gore’s age discrimination

claim on sovereign immunity grounds. Gore does not appeal

this ruling and rightly so. See Kimel v. Florida Bd. of

Regents, 528 U.S. 62, 73 (2000) (finding that the Age

Discrimination in Employment Act was not appropriate

legislation to enforce section five of the Fourteenth Amend-

ment and therefore did not abrogate the states’ sovereign

immunity).

The University moved for summary judgment on Gore’s

remaining sex discrimination claim at the close of discovery.

The district court granted the motion, precipitating this

appeal.

II

Title VII of the Civil Rights Act of 1964 provides that it

“shall be an unlawful employment practice for an employ-

4 No. 04-2439

er . . . to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s . . . sex.” 42

U.S.C. § 2000e-2(a)(1). To prevail on his sex discrimination

claim, Gore must either show direct evidence of discrimina-

tory motive or intent, or rely on the indirect burden-shifting

method outlined in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Gore relies solely on the latter option.

Under this approach, a plaintiff must present evidence

tending to show: (1) he is a member of a protected class; (2)

he applied for, and was qualified for, an open position; (3)

the employer rejected him for the position; and (4) the

employer filled the position with an individual outside of

the plaintiff’s protected class, or the position remained

vacant. See, e.g., Bennett v. Roberts, 295 F.3d 687, 694 (7th

Cir. 2002). If the plaintiff can establish these four elements,

the defendant has an opportunity to articulate a legitimate,

nondiscriminatory reason for its action. If the defendant

does so, the burden shifts back to the plaintiff and he must

offer evidence showing that the defendant’s excuse is

pretextual. Id. at 694-95.

The district court saw no need to engage in this back-and-

forth process, because Gore failed at the very first step of

the analysis. Even though Title VII’s prohibitions against

sex discrimination generally protect men as well as women,

see, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75 (1998) (men); Harris v. Forklift Sys., Inc., 510 U.S.

17 (1993) (women), the district court thought that Gore, in

the circumstances of this case, was not a member of a class

of employees protected by Title VII. We would put the point

a little differently: the conventional McDonnell Douglas

framework is not very helpful for so-called reverse-discrimi-

nation cases. Because it “is the unusual employer who

discriminates against majority employees,” Mills v. Health

Care Serv. Corp., 171 F.3d 450, 456-57 (7th Cir. 1999), a

No. 04-2439 5

male plaintiff alleging gender discrimination must show

something more than the fact that he is gendered. See, e.g.,

Katerinos v. U.S. Dep’t of Treasury, 368 F.3d 733, 736 (7th

Cir. 2004). This was what we meant in Phelan v. City of

Chicago, 347 F.3d 679, 684 (7th Cir. 2003), when we said

that in cases of reverse discrimination, “the first prong of

the McDonnell test cannot be used.” Rather, the plaintiff in

such cases “must 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.” Id. (internal quotation omitted).

Relying on Steinhauer v. DeGolier, 359 F.3d 481, 484 (7th

Cir. 2004), Gore argues that we have abandoned this added

reverse-discrimination requirement. That case, however,

was just one in a line of cases that illustrate the need for

flexibility in applying the indirect method of proving

discrimination. We noted that “[t]he first element is really

a non-issue because everyone is male or female.” Id. at 484.

Similarly, everyone can be identified racially. The objective

of the indirect method is to assess whether the plaintiff’s

race, or gender, or other protected characteristic, affected

the employment action in question. We see nothing in

Steinhauer that implies an overruling of the cases holding

that additional steps are needed before an inference of re-

verse-discrimination can be drawn. Nor is there any hint

that Steinhauer required reconsideration in Katerinos, a

case decided after Steinhauer in which we applied the

added reverse-discrimination burden. See 368 F.3d at 736.

Gore offers nothing to overcome this added burden. There

was nothing suspicious about the University’s decision not

to hire him. Gore himself admitted in his deposition that he

had no basis to claim that he was more qualified than the

candidates the University hired. A man appointed the

hiring committee, which, as we noted, had three men and

two women. Particularly because the University hired a

6 No. 04-2439

man before it hired the two women, it is hard even to

construct a reverse-discrimination story from these events.

Gore has not presented any evidence to suggest that the

University’s hiring process was unusual. He has offered no

proof, direct, indirect, or circumstantial, that could lead any

trier of fact to conclude that he was the victim of sex

discrimination. Without such evidence, his appeal must fail.

III

For these reasons, we AFFIRM the judgment of the district

court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-25-05