Rudin, Janine v. Lincoln Land Communi

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3711

JANINE RUDIN,

Plaintiff-Appellant,

v.

LINCOLN LAND COMMUNITY COLLEGE,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 03 C 3079—Jeanne E. Scott, Judge.

____________

ARGUED APRIL 11, 2005—DECIDED AUGUST 25, 2005

____________

Before POSNER, RIPPLE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Janine Rudin brought this action

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., against her employer, Lincoln Land Commu-

nity College (“LLCC”), for alleged race and sex discrimina-

tion. The district court granted summary judgment to LLCC

on both claims. Ms. Rudin timely appealed. For the reasons

set forth in the following opinion, we reverse the judgment

of the district court and remand for further proceedings.

2 No. 04-3711

I

BACKGROUND

A. Facts

LLCC is a community college located in Springfield,

Illinois. In early 2002, LLCC announced its plan to fill a

vacancy for a Business Administration instructor (“the

position”), a full-time, tenure-track position in LLCC’s

Department of Business and Public Services (“the Depart-

ment”). Over one hundred individuals applied for the

position.

Ms. Rudin, who is a Caucasian female, submitted an

application for the position. Since 1993, Ms. Rudin had been

an adjunct instructor in the Department. According to Ms.

Rudin’s resume, she possesses a bachelor’s degree in

management and a master’s degree in public administra-

tion, both earned from Sangamon State University.

Hiring for the position was governed by LLCC’s

“Screening and Interviewing Committee Processes and

Guidelines” (the “Guidelines”). R.22, Tab 18 at 1. Pursuant

to the Guidelines, a screening committee (the “Screening

Committee” or “Committee”) was convened to review the

applications for the position. Richard Bowen, chair of the

Department, was the chair of the Screening Committee.

According to the procedures set out in the Guidelines, nine

other individuals (including Department faculty members,

faculty from other departments and LLCC staff members)

served on the Screening Committee. The parties agree that

the Committee’s members did not all participate equally in

the hiring process.

The Screening Committee completed the process identi-

fied in the Guidelines as “Candidate Screening,” in order to

“reach a consensus on those candidates” who were accept-

able or suitable for an interview. R.22, Tab 18 at 2. Ms.

No. 04-3711 3

Rudin was among those selected for an interview by this

process.

Following the Screening Committee’s review of the

candidates, the list of those selected for an interview

was sent, pursuant to the Guidelines, to Nicole Ralph,

LLCC’s Equal Opportunity Compliance Officer, for her

review. According to the Guidelines, this review could

result in: “(a) proceed[ing] with candidates selected by

the committee, (b) add[ing] minority candidates to the

pool to be interviewed, or (c) . . . halt[ing] the screening

process.” R.22, Tab 18 at 3. Ralph testified at her deposition

that her role in reviewing the list of interviewees was to

“determin[e] if there was sufficient diversity among the

interviewees.” R.18, Tab H at 2.

It was at this point that Paul Hudson, an African-Amer-

ican male who had applied for the position but who had

not been selected for an interview in the Candidate Screen-

ing process, was added to the interview pool. Ralph de-

scribed her rationale for adding Hudson to the list of

interviewees: “I saw Hudson’s resume and after looking

at it, I saw that he was comparable to the other candi-

dates . . . .” R.18, Tab H at 80. She reviewed her selection of

Hudson with Bowen, and Hudson was included on the list

of candidates to be interviewed. During the Candidate

Screening process, Bowen had been the only Committee

member to recommend Hudson for an interview.

According to Hudson’s resume, he had a bachelor’s

degree in business administration from Western Michigan

University, a master’s degree in management from Nazareth

College and a master’s degree from Western Michigan

University in an unspecified field. Hudson had previous

teaching experience; according to his resume, he had

worked as an instructor teaching business-related courses at

seven colleges including LLCC, where he taught a market-

4 No. 04-3711

ing course in 1999.

Once the list of candidates to be interviewed had been

finalized by adding Hudson’s name, interviews for the

position were conducted. Not all members of the Committee

interviewed all candidates.

Following the candidate interviews, Bowen scheduled

a meeting of the Screening Committee at which the Commit-

tee would make its recommendation for the position.

However, only Bowen and Screening Committee mem-

ber Arthur Meyer, Jr. attended that meeting. The parties

agree that no Committee-wide discussion of the candi-

dates took place.

Despite the fact that Bowen never met with the rest of the

members of the Screening Committee, it is clear that, at

some point following the interviews, Committee member

Meyer compiled rankings of the interview candidates

from the rest of the Committee. The Committee members

were allowed to cast votes only for candidates they had

interviewed. Ms. Rudin was rated second-highest in these

rankings. Hudson was ranked second from the bottom.

The parties dispute whether the Committee’s rankings

were made available to Bowen before he recommended to

his superiors that Hudson be hired for the position. Al-

though LLCC contends that Bowen did not have the Com-

mittee’s rankings as of the day he made his recommenda-

tion, Committee member Meyer testified at his deposition

that he had forwarded the Committee’s rankings of candi-

dates to Bowen before Bowen recommended Hudson.

On April 8, 2002, Bowen recommended Hudson to Eileen

Tepatti, LLCC’s Assistant Vice President of Instruction. The

parties do not dispute that Bowen made the recommenda-

tion without the input of the Selection Committee. Also on

No. 04-3711 5

April 8, 2002, Tepatti recommended Hudson to Dana Grove,

LLCC’s Vice President of Academic Affairs. On the same

day, Grove passed on his recommendation of Hudson to Dr.

James Howard, who was then President of LLCC.

Bowen informed Ms. Rudin in a telephone call of April 12,

2002, that she would not be hired for the position. Accord-

ing to Ms. Rudin, Bowen told her that he had been under

“administrative pressure” with respect to the hiring decision

and that he “had nothing to do with the decision.” R.21, Tab

7 at 126. Ms. Rudin also recalled that Bowen told her that

the person who had been hired was not more qualified than

she was and had not been teaching at LLCC longer than she

had. Bowen did not tell Ms. Rudin that Hudson had been

hired.

At some point after learning that she would not be hired

for the position, Ms. Rudin contacted and subsequently met

with several members of LLCC’s Board of Trustees (“the

Board”) regarding her belief that she should have been

hired. It is not clear how many of the seven members of the

Board agreed to meet with Ms. Rudin. In her deposition, she

testified that she met with four members of the Board. In

notes taken around the time of the meeting, she identified

five members of the Board with whom she had met.

Around the same time, Ms. Rudin made an appointment

to meet with Dr. Howard.1 At that meeting, Ms. Rudin

recalled in her deposition, Dr. Howard told her that “Rich

Bowen [was] lying” about the existence of administrative

pressure to make a hiring decision. R.21, Tab 7 at 42. He also

1

In her deposition, Ms. Rudin testified that she did not remem-

ber when this meeting with Dr. Howard occurred. Some notes

that she took closer to the time of the events in this case place

the meeting’s date at April 30, 2002.

6 No. 04-3711

said, “I had nothing to do with who gets hired so there is no

administrative pressure.” Id. Ms. Rudin also recalled that

Dr. Howard told her that “there was a problem with the

process, the way the hiring was done.” Id.

On April 24, 2002, Dr. Howard recommended Hudson to

the Board, the body that had the ultimate authority to make

the hiring decision. The Board did not reach a decision on

whether to hire Hudson at that time. Around the time that

Dr. Howard recommended Hudson to the Board, he

requested that Tepatti document the decision to recommend

Hudson. Tepatti prepared two memoranda, dated April 22

and April 29.

Tepatti’s April 22 memorandum described the hiring

process. It explained that Bowen “considered Paul Hudson

qualified and a very successful LLCC adjunct with excellent

student evaluations. . . . Given all of this as well as the

college’s focus on minority hiring, [Bowen] selected him for

the position.” R.18, Tab G at 9-10. The April 22 memoran-

dum also stated that “the committee was very upset with

[Bowen]—Janine was too.” R.18, Tab G at 10. Tepatti

attributed some of the Committee’s reaction to the fact

that “some members of the [Department of Business and

Public Services] have a problem with the focus on minority

hiring goals at the college.” Id. She also noted that Ms.

Rudin had made it clear in the past that she would want the

position when it became vacant and suggested that Ms.

Rudin had “developed an entitlement attitude in the past

couple of years.” Id.

Tepatti’s April 29 memorandum also reviewed the process

by which Hudson became the recommended candidate for

the job. The April 29 memorandum discussed the process by

which Hudson was added to the interview pool, the manner

in which the interviewed candidates were evaluated and

No. 04-3711 7

Bowen’s ultimate decision to recommend Hudson. In the

memo, Tepatti stated that she “asked [Bowen] point blank

about [Ms. Rudin’s] assertions [that Bowen had been

pressured to hire Hudson]. Emphatically and without

hesitation, [Bowen] responded that he did not tell [Ms.

Rudin] or anyone else that ‘higher ups’ had forced him or

put pressure on him to hire Paul Hudson.” R.18, Tab D at

15. In her April 29 memorandum, Tepatti endorsed hiring

Hudson.

Dr. Howard prepared a memorandum, dated April 30,

2002, again recommending approval of Hudson for the

position. Howard’s April 30 memorandum further ex-

plained that, although “questions were raised concerning

proper procedure used in th[e] selection” of Hudson for the

position, he was “completely satisfied that established

processes have been followed and that the recommenda-

tions are both objective and appropriate.” R.18, Tab D at 13.

Dr. Howard also noted that Hudson’s hiring “offer[ed] . . .

the opportunity to address the Board’s concern with

minority representation among faculty and staff at the

college.” Id.

Dr. Howard’s memorandum of April 30 and Tepatti’s

memorandum of April 29 were provided to the Board for a

special meeting held May 2, 2002. At that meeting, the

Board decided to hire Hudson for the position.

8 No. 04-3711

B. District Court Proceedings

Ms. Rudin filed the complaint in this action in April 2003.

She advanced two Title VII claims: a claim for race discrimi-

nation and a claim for sex discrimination. After the

parties engaged in discovery, the district court granted

LLCC’s motion for summary judgment.

The district court determined that there was no direct

evidence of race discrimination. Relying on an Eighth

Circuit case, Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997),

cert. denied, 523 U.S. 1137 (1998), the court concluded that

the inclusion of Hudson in the interview pool was not direct

evidence of discrimination. The court also concluded that

neither Bowen’s statements nor the administrative memo-

randa that justified Hudson’s hiring on non-discriminatory

as well as diversity grounds constituted direct evidence of

discrimination.

The court further determined that Ms. Rudin could not

make out a prima facie case of race discrimination based

on indirect evidence. Therefore, the court granted summary

judgment for LLCC on Ms. Rudin’s race claim.2

The court next turned to Ms. Rudin’s gender claim. As it

does on this appeal, LLCC conceded before the district court

that Ms. Rudin could establish a prima facie case of gender

discrimination. Thus, proceeding according to the frame-

work set out in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), the court considered whether LLCC had a

2

The court also noted that, even had Ms. Rudin been able to

establish the prima facie case for race discrimination, she

would have been unable to rebut LLCC’s proffered non-dis-

criminatory reason for hiring Mr. Hudson. However, the court

did not address the other factors of the prima facie indirect

case for reverse racial discrimination.

No. 04-3711 9

legitimate, non-discriminatory reason for hiring Hudson. It

concluded that LLCC’s assertion that it had hired Hudson

because he was the most qualified candidate was a legiti-

mate, non-discriminatory reason. Because the district court

perceived that Ms. Rudin had not even attempted to

establish pretext, it granted summary judgment for LLCC as

to her gender claim.

II

DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment

de novo. Sartor v. Spherion Corp., 388 F.3d 275, 277 (7th Cir.

2004). We view all facts in the light most favorable to the

nonmoving party, Ms. Rudin, and we draw all reason-

able inferences in her favor. Eiland v. Trinity Hosp., 150

F.3d 747, 750 (7th Cir. 1998). We shall uphold the grant of

summary judgment if “the pleadings, depositions, answers

to the interrogatories, and admissions on file, together

with affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

B. Race Discrimination

Title VII makes it unlawful for an employer “to fail or

refuse to hire . . . or otherwise to discriminate against any

individual . . . because of such individual’s race, color,

religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1).

The Supreme Court has explained that “the obligation

imposed by Title VII is to provide an equal opportunity for

10 No. 04-3711

each applicant regardless of race.” Furnco Const. Corp. v.

Waters, 438 U.S. 567, 579 (1978) (emphasis in original).

Ms. Rudin has alleged that LLCC violated Title VII by

engaging in intentional discrimination, “i.e., disparate

treatment,” based on her race. Nanda v. Bd. of Tr. of Univ. of

Illinois, 303 F.3d 817, 829 n.6 (7th Cir. 2002). Thus, Ms. Rudin

“can avert summary judgment for [LLCC] . . . either by

putting in enough evidence, whether direct or circumstan-

tial, of discriminatory motivation to create a triable issue or

by establishing a prima facie case under the McDonnell

Douglas formula.” Sheehan v. Daily Racing Form, Inc., 104

F.3d 940, 940 (7th Cir.) (citing McDonnell Douglas Corp., 411

U.S. 792), cert. denied, 521 U.S. 1104 (1997); see also Logan v.

Kautex Textron N. America, 259 F.3d 635, 638 (7th Cir. 2001)

(noting that “the pertinent question” in a Title VII case “is

not whether a plaintiff has direct (including circumstantial)

or indirect proof of discrimination, but whether [she] has

presented sufficient evidence that [her employer’s] deci-

sion . . . was motivated by an impermissible purpose”).

1.

The method of proving race discrimination by putt-

ing forth evidence of discriminatory motivation often is

called the “direct” method. See Sheehan, 104 F.3d at 941. A

plaintiff proceeding according to the direct method may rely

on two types of evidence: direct evidence or circumstan-

tial evidence.3 See Logan, 259 F.3d at 638; see also Troupe v.

3

From the parties’ submissions, it appears that both Ms. Rudin

and LLCC have confused the direct method of proof with direct

evidence of discrimination. Such confusion is understandable;

(continued...)

No. 04-3711 11

May Dep’t Stores, 20 F.3d 734, 736 (7th Cir. 1994).

a.

“Direct evidence is evidence which, if believed by the trier

of fact, will prove the particular fact in question

without reliance upon inference or presumption.” Eiland,

150 F.3d at 751 (internal quotation omitted). Direct evidence

“can be interpreted as an acknowledgment of discrimina-

tory intent by the defendant or its agents.” Troupe, 20 F.3d

at 736. Direct evidence is a “distinct” type of evidence that

uniquely reveals “intent to discriminate[, which] is a mental

state.” Id.

For instance, in Mojica v. Gannett Co., 7 F.3d 552 (7th Cir.

1993) (en banc), cert. denied, 511 U.S. 1069 (1994), which this

court later characterized as a direct evidence case, see

Troupe, 20 F.3d at 736 (citing Mojica as a case exhibiting

direct evidence of discrimination), the plaintiff testified that,

inter alia, a manager had told her “that she would not be

3

(...continued)

“[t]here are several cases that arguably conflate the direct method

with direct evidence.” Rogers v. City of Chicago, 320 F.3d 748, 754

(7th Cir. 2003); see also Sheehan v. Daily Racing Form, Inc., 104 F.3d

940, 941 (7th Cir. 1997) (“The confusion lies in the fact that the

direct method may employ circumstantial evidence along with or

for that matter in place of ‘direct’ evidence . . ., which in an

employment discrimination case would normally require an

admission.”). Nonetheless, “we reemphasize here that use of

direct evidence is merely one of two means (the other being the

use of circumstantial evidence) of proceeding under the direct

method.” Rogers, 320 F.3d at 754. Despite the parties’ apparent

confusion, we shall consider both direct evidence and circum-

stantial evidence in our inquiry into whether Ms. Rudin has

satisfied the direct method of proving race discrimination.

12 No. 04-3711

promoted to a more lucrative shift because she was not ‘a

black male.’ ” Mojica, 7 F.3d at 561. In Plair v. E.J. Brach &

Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997), we stated that

“direct evidence would be what [the employer] said or did

in the specific employment decision in question.” For

example, evidence that an employer “said he discharged

[the plaintiff] because he is black” constitutes direct evi-

dence. Id.

b.

Circumstantial evidence of discrimination, on the other

hand, allows the trier of fact “to infer intentional discrimina-

tion by the decisionmaker.” Rogers v. City of Chicago, 320

F.3d 748, 753 (7th Cir. 2003) (emphasis added). We have

recognized three distinguishable kinds of “circumstantial”

evidence of intentional discrimination:

The first consists of suspicious timing, ambiguous

statements oral or written, behavior toward or com-

ments directed at other employees in the protected

group, and other bits and pieces from which an infer-

ence of discriminatory intent might be drawn. . . .

Second is evidence, whether or not rigorously statistical,

that employees similarly situated to the plaintiff other

than in the characteristic (pregnancy, sex, race,

or whatever) on which an employer is forbidden to base

a difference in treatment received systematically better

treatment. . . . [T]hird is evidence that the plaintiff was

qualified for the job in question but passed over in favor

of (or replaced by) a person not having the forbidden

characteristic and that the employer’s stated reason for

the difference in treatment is unworthy of belief . . . .

No. 04-3711 13

Troupe, 20 F.3d at 736 (internal citations omitted).

Whether the plaintiff proceeding according to the direct

method relies on direct evidence or circumstantial evidence,

she can avoid summary judgment for the other party by

“creat[ing] a triable issue of whether the adverse employ-

ment action of which [s]he complains had a discriminatory

motivation.” Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,

1397 (7th Cir. 1997).

2.

Ms. Rudin’s submissions to this court and the district

court make reference, however brief, to the direct method of

proof. She has not invited our attention to any evidence that

meets the definition of direct evidence. As Ms. Rudin points

out, however, there is circumstantial evidence of intentional

discrimination in this case. See Appellant’s Br. at 42 (arguing

that Ms. Rudin has “offered extensive evidence that clearly

suggests that race was a motivating factor in the decision to

hire [Hudson]” (emphasis added)). Thus, we shall examine

the circumstantial evidence of intentional discrimination

present in this case.

a.

We think that the addition of Hudson into the interview

pool, when considered with the other facts and circum-

stances of this case, constitutes circumstantial evidence

of racial discrimination.

Some background will assist in placing this issue in

perspective. Before the district court, LLCC contended that

its policy was a great deal more than simply generating

the largest pool of quality applicants. Rather, it argued

that its race-conscious hiring process was a permissible way

14 No. 04-3711

of increasing diversity in its faculty. See Grutter v. Bollinger,

539 U.S. 306, 330 (2003) (approving the University of

Michigan Law School’s affirmative action program and

noting that “substantial” “educational benefits” accompany

diversity in the student body of an institution); see

also Comfort v. Lynn Sch. Comm., ___ F.3d ___, 2005 WL

1404464 (1st Cir. 2005) (approving use of race as a selection

criteria in school transfer policy in order to achieve

what local educators deemed an educationally salutary

racial balance in schools). However, on this appeal, LLCC

makes no such argument and, during oral argument,

explicitly abandoned reliance on such an approach. Instead,

it simply argues that the practice of inserting minority

candidates into the interview pool does not show that race

was a consideration in the employment decision at issue

here.4

While perhaps not sufficient, in itself, to support a finding

of racial discrimination, see Duffy, 123 F.3d at 1038-39,5 the

practice of including a racial minority in the candidate pool,

when considered with other factors in a case, can constitute

circumstantial evidence of race discrimination. Hudson’s

4

LLCC also has not argued that it is obligated to engage in some

form of affirmative action in order to comply with a remedial

decree or that it is engaging in affirmative action in order to

remedy any past discrimination on the part of the institution.

5

In Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997), the Eighth

Circuit stated that “an employer’s affirmative efforts to recruit

minority and female applicants does [sic] not constitute discrimi-

nation. . . . An inclusive recruitment effort enables employers to

generate the largest pool of qualified applicants and helps to

ensure that minorities and women are not discriminatorily

excluded from employment.” Id. at 1038-39 (internal citations

omitted).

No. 04-3711 15

name was inserted into the interview pool according to a

stated policy of LLCC that explicitly favored minority over

non-minority job applicants; Ralph stated in her deposition

that she would not “necessarily look at . . . white applicants”

in conducting her review of the candidates selected for

interviews. R.21, Tab 5 at 81. Hudson was not simply placed

in the general applicant pool; he was allowed to bypass the

first elimination.

Although Title VII does not outlaw all private, voluntary,

race-conscious affirmative action plans, United Steelworkers

of America v. Weber, 443 U.S. 193, 208 (1979), the existence of

an affirmative action plan may be “relevant to a key issue in

a disparate treatment discrimination case: discriminatory

intent.” Whalen v. Rubin, 91 F.3d 1041, 1045 (7th Cir. 1996).

Alone, “[t]he mere existence of an affirmative action policy

is, however, insufficient to prove that the [employer]

actually intentionally discriminated against [the em-

ployee].” Id. A Title VII plaintiff “must establish a link

between the [employer’s affirmative action] policies and

its actions toward [her]” in order to show intentional

discrimination. Id.

Without passing judgment on whether at trial Ms. Rudin

will be able to persuade the finder of fact of the ultimate fact

of discrimination, we conclude that, at the summary

judgment stage of these proceedings, the evidence of

LLCC’s practice of inserting minorities into the interview

pool helps establish a triable issue of fact as to whether

LLCC had a discriminatory motive when it chose to hire

Hudson instead of Ms. Rudin. See id. The fact that Hudson

was inserted into the interview pool based on his race, when

combined with the other facts and circumstances of this

case, is certainly relevant and probative evidence that a trier

of fact may consider in determining whether LLCC had the

16 No. 04-3711

requisite intent to discriminate when it hired Hudson

instead of the plaintiff.

b.

Next, we believe that several statements attributed to

Bowen provide a strong basis for drawing an inference of

intentional discrimination. Repeatedly, Bowen told others

that he was under administrative pressure with respect

to the hiring decision; he either suggested or stated outright

that he was under pressure to recommend a minority

candidate for the position. The most straightforward

example is the statement of Meyer, a member of the Selec-

tion Committee, who testified in his deposition that he had

heard Bowen say that “he knew the administration above

him wanted a more diverse set of—more diverse—diversity

at Lincoln Land.” R.21, Tab 9 at 39. Pat Falconburg, who

was Bowen’s assistant at the time the hiring decision was

made, testified in a deposition that Bowen had told her, “I

have to do it this way because I’m getting a lot of adminis-

trative pressure.” R.21, Tab 2 at 35. Ms. Rudin herself

testified at her deposition that, when she had asked Bowen

about the hiring decision, “[h]e kept saying administrative

pressure, I had nothing to do with the decision.” R.21, Tab

7 at 126.

It is true that it is the motivation of the decisionmaker that

matters in the Title VII context, see, e.g., Rogers, 320 F.3d at

753, and it is also true that the Board—not Bowen—was the

final decisionmaker in this case. However, Bowen’s state-

ment to Meyer can be understood as an admission that the

decisionmakers at LLCC were inclined to hire a candidate

from a racial minority. Bowen’s comments, considered in

light of Dr. Howard’s reference— made in a memorandum

to the Board—to “the Board’s concern with minority

No. 04-3711 17

representation among faculty and staff at the college,” R.18,

Tab D at 13, further strengthen the inference that the Board

discriminated against Ms. Rudin based on her race. As well,

Tepatti’s statements, made in her April 22 memo to Dr.

Howard, regarding “the college’s focus on minority hiring,”

R.18, Tab G at 9, further support the inference that the

decisionmakers at LLCC hired Hudson because of his race

and, in addition, did not hire Ms. Rudin because of her race.

c.

We believe that the fact that LLCC did not follow its

own internal procedures with respect to the hiring proc-

ess for the position also points to a discriminatory motiva-

tion. According to LLCC’s Guidelines, the Screening

Committee was supposed to “meet[] and thoroughly

discuss[] the strengths and weaknesses of each candidate.”

R.22, Tab 18 at 3. The parties appear to agree that no such

meeting took place; although one was scheduled, for some

reason the meeting was attended by only one member and

the chair, Bowen. Consequently, the views of the Committee

members were not aired as anticipated by the Guidelines.

The Committee also was expected to develop a “ranking

of the candidates and to identify those candidates who

are acceptable and non-acceptable.” Id. It clearly was

anticipated by LLCC’s policies that the Committee Chair

would “[t]ak[e] into consideration the input presented

by the individual committee members” before identifying

his candidate of choice and recommending that person to

his superiors. Id. The parties have presented conflicting

assertions regarding whether Bowen was aware of the

Committee’s rankings before he proceeded with making his

recommendation to his supervisor, Tepatti. We pause here

18 No. 04-3711

to point out that, if Bowen proceeded to recommend

Hudson to Tepatti without consulting with the Committee,

that also suggests that a departure from LLCC’s stated

policies occurred in this case. After all, the Guidelines direct

that “[t]he summary of results of the committee delibera-

tions should be attached to [the Committee Chair’s] recom-

mendation.” Id.

At oral argument, LLCC submitted that it was difficult for

Bowen to deal with the Screening Committee, whose

activities had become contentious. However, we believe that

is a question for the jury. The fact remains that LLCC

departed from its stated policies. This leaves us with

the distinct impression that the Committee’s role, while

ultimately consultatory, was entirely abandoned in the

hiring process.6 This systematic abandonment of its hir-

ing policies is circumstantial evidence of discrimination.

6

LLCC itself has asserted that the Committee’s rankings

were not before the Board, the ultimate decisionmaker in this

case.

No. 04-3711 19

d.

We also believe that the fact that LLCC’s justification

for the hiring decision has been inconsistent is circumstan-

tial evidence of discrimination. As we have described above,

to Ms. Rudin, Bowen justified his decision to recommend

Hudson by explaining that he was under significant admin-

istrative pressure. To Meyer, he justified his decision on the

ground that he was under administrative pressure to hire a

racial minority. Later, Tepatti’s memo to Dr. Howard

justified Bowen’s recommendation of Hudson on the

grounds that Hudson was “qualified and a very successful

LLCC adjunct with excellent student evaluations” as well as

on the ground that hiring Hudson fulfilled “the college’s

focus on minority hiring.” R.18, Tab G at 9-10. Shortly after

that memo was written, Dr. Howard himself explained to

the Board that Hudson represented both “an opportunity to

enhance [LLCC’s] faculty” and “the opportunity to address

the Board’s concern with minority representation among

faculty.” R.18, Tab D at 13. On this appeal, however, LLCC

contends simply that Hudson was the best qualified candi-

date for the position. This shifting justification, combined

with the other circumstantial evidence of race discrimina-

tion which we have just discussed, provides sufficient

circumstantial evidence that LLCC discriminated against

Ms. Rudin in its hiring decision because of her race and

warrants submission of the issue to a trier of fact.

3.

As we have just described, Ms. Rudin has put forth

substantial circumstantial evidence that LLCC had a

discriminatory intent in making its hiring decision for the

position. We conclude that the above evidence is sufficient

20 No. 04-3711

to create a triable issue as to whether LLCC’s hiring of

Hudson and its failure to hire Ms. Rudin were motivated by

discrimination.

C. Sex Discrimination

Before the district court, Ms. Rudin also alleged that LLCC

violated Title VII by discriminating against her based on her

sex. LLCC conceded that Ms. Rudin had established a prima

facie case of sex discrimination according to the indirect,

burden-shifting method of proof. See McDonnell Douglas

Corp., 411 U.S. 792. However, LLCC argued, and the district

court agreed, that LLCC had put forth a legitimate, non-

discriminatory reason for its decision which Ms. Rudin had

failed to rebut. Therefore, the district court granted sum-

mary judgment for LLCC on Ms. Rudin’s sex discrimination

claim.

Before this court, LLCC again concedes that Ms. Rudin

has established a prima facie indirect case of sex discrimina-

tion. In order to make a prima facie indirect case of sex

discrimination, a Title VII plaintiff must establish that

she: “1) is . . . a female; 2) applied for, and was qualified for,

an open position; 3) was rejected; and 4) the employer filled

the position with a person not in the plaintiff’s protected

class, or the position remained open.” Mills v. Health Care

Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999). Once the

plaintiff has met her burden to establish the prima facie

case, “a presumption of discrimination arises, and the

employer must articulate a legitimate and non-discrimina-

tory reason for the employment action” in question. Moser

v. Indiana Dep’t of Corr., 406 F.3d 895, 900 (7th Cir. 2005). If

the employer does articulate such a reason, then “the

plaintiff must show by a preponderance of the evidence that

No. 04-3711 21

the employer’s proffered reasons were merely a pretext for

discrimination.” Id. at 900-01. Throughout this burden-

shifting, the ultimate burden of persuasion remains at all

times with the plaintiff. Id. at 901.

1.

We first shall consider whether LLCC has proffered a

legitimate, non-discriminatory reason for its hiring decision.

LLCC claims that Hudson was hired because he was the

most qualified candidate for the position. At this stage, the

employer is not required to “prove that it was actually

motivated by the proffered reason. Rather, an employer

need only produce admissible evidence which would allow

the trier of fact rationally to conclude that the employment

decision had not been motivated by discriminatory ani-

mus.” Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997,

1001 (7th Cir. 2000) (internal quotation omitted).

LLCC points to numerous pieces of evidence in the record

which it claims provide support for its proffered reason. For

instance, it cites Bowen’s memorandum of April 8, 2002, in

which he recommended Hudson for the position. In the

memo, Bowen informed Tepatti that, after a “highly

competitive” interview process, he had concluded that

Hudson should be hired for the position due to, among

other considerations, his “[e]xcellent student evaluations,”

his “[t]wo master’s degrees” and the fact that Bowen

perceived that Hudson was “working on [his] PhD.” R.18,

Tab E at 11. Among other evidence supporting its justifica-

tion for the hiring decision, LLCC also cites Tepatti’s two

memoranda written for Dr. Howard. Tepatti’s memoran-

dum of April 29, 2002, which the Board had before it when

it decided to hire Hudson, states that Hudson is “qualified

22 No. 04-3711

and a very successful LLCC adjunct with excellent student

evaluations.” R.18, Tab D at 5. As well, the April 29 memo-

randum notes that Hudson “possesses two masters’ [sic]

degrees and is a dissertation short of getting his doctorate.”

Id.

Based on the evidence cited by LLCC, we must conclude

that it has proffered a legitimate, non-discriminatory reason

for its hiring decision and supported the reason with

admissible evidence.

2.

We next turn to the question of whether Ms. Rudin can

show, by a preponderance of the evidence, that LLCC’s

proffered reason is pretext for sex discrimination.7 Because it

is a subject of debate between the parties, we first shall

review the showing that is required of a plaintiff with

respect to pretext at the summary judgment stage of a Title

7

In her submissions to this court on appeal, Ms. Rudin barely

mentions her sex discrimination claim in the context of her

arguments on pretext. Usually, this would be grounds for holding

that the argument is waived. See Kramer v. Banc of America Sec.,

LLC, 355 F.3d 961, 964 n.1 (7th Cir.) (“The absence of any support-

ing authority or development of an argument constitutes a

waiver on appeal.”), cert. denied, 124 S. Ct. 2876 (2004). However,

we believe that the paucity of references to her sex discrimina-

tion claim is due to the posture in which the present case reached

us. The district court dealt with both the race and sex discrimina-

tion claims by way of the McDonnell Douglas burden-shifting

method; therefore, both parties framed their arguments before

this court on pretext in general terms most likely intended to

apply both to the race discrimination claim and to the sex

discrimination claim.

No. 04-3711 23

VII case.

a.

The parties agree that Ms. Rudin must show that there

is genuine issue of material fact as to whether LLCC hon-

estly believed its stated justification for hiring Hud-

son. However, they dispute whether she also is required

at the summary judgment stage to show that LLCC had

a discriminatory animus based on sex. The answer is that

“at summary judgment the plaintiff is not required to

establish pretext and provide evidence of a discriminatory

motive by the defendant . . . . This level of proof is only

required when a plaintiff’s case is submitted to a finder

of fact.” Mills, 171 F.3d at 458.

On the issue of proving pretext, the Supreme Court has

stated that “[t]he factfinder’s disbelief of the reasons put

forward by the defendant (particularly if disbelief is ac-

companied by a suspicion of mendacity) may, together

with the elements of the prima facie case, suffice to

show intentional discrimination.” St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 511 (1993) (emphasis added). We

understand that language to mean that, “once the employee

has cast doubt upon the employer’s proffered reasons for

the termination, the issue of whether the employer discrimi-

nated against the plaintiff is to be determined by the

jury—not the court.” Weisbrot v. Med. Coll. of Wisconsin, 79

F.3d 677, 681-82 (7th Cir. 1996). Therefore, we have held

that, “in order to survive a motion for summary judgment,

an employee need only ‘produce evidence from which a

rational factfinder could infer that the company lied about

24 No. 04-3711

its proffered reasons for [her] dismissal.’ ” 8 Id. at 682

(quoting Courtney v. Biosound, Inc., 42 F.3d 414, 424 n.4 (7th

Cir. 1994)). In other words, if there is a question of fact as to

the believability of an employer’s purported reasons for an

employment decision then, “even if the evidence presented

by [the plaintiff] does not compel the conclusion that [her

employer] discriminated against [her] when making its . . .

decision, at a bare minimum it suffices to defeat [the

employer’s] summary judgment motion.” Biosound, 42 F.3d

at 423.9

b.

8

Phrased differently, “[s]ummary judgment is proper where no

rational factfinder could believe that the employer lied about

its proffered reasons for” the hiring decision in question. Weisbrot

v. Med. Coll. of Wisconsin, 79 F.3d 677, 682 (7th Cir. 1996).

9

It is worth pointing out that, at trial, the ultimate burden of

persuasion on the question of sex discrimination remains at all

times with Ms. Rudin. To prevail at trial on her sex discrimina-

tion claim, Ms. Rudin will have to persuade the jury that the

real reason LLCC failed to hire her was because it discriminated

against her on account of sex. See Perdomo v. Browner, 67 F.3d 140,

145 (7th Cir. 1995) (“Although an inference of discrimination may

be drawn from falsely stated reasons, such an inference is not

compelled. . . . [T]he real reasons behind an employer’s action

may be shameful or foolish, but unrelated to . . . discrimination,

in which event there is no liability.”). Thus, as we have noted

before, “the plaintiff might be well advised to present additional

evidence of [sex] discrimination, because the factfinder is not

required to find in her favor simply because she establishes a

prima facie case and shows that the employer’s proffered reasons

are false.” Anderson v. Baxter Health Care Corp., 13 F.3d 1120, 1124

(7th Cir. 1994) (emphasis in original).

No. 04-3711 25

As evidence that LLCC lied about its reason for hiring

Hudson, Ms. Rudin contends that: (1) Bowen’s justifica-

tion for not hiring Ms. Rudin has changed over time; (2)

Bowen failed to follow LLCC’s hiring policies; (3) Ms. Rudin

was more qualified than Hudson; (4) race was a factor in the

decision to hire Hudson; and (5) Bowen was under adminis-

trative pressure to hire a minority candidate.

As we already have noted, Bowen’s justification for hiring

Hudson instead of Ms. Rudin has changed over time. This

court’s decisions make it clear that “[o]ne can reasonably

infer pretext from an employer’s shifting or inconsistent

explanations for the challenged employment decision.”

Applebaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573,

579 (7th Cir. 2003); see also Schuster v. Lucent Techs., Inc., 327

F.3d 569, 577 (7th Cir. 2003) (“Shifting and inconsistent

explanations can provide a basis for a finding of pretext.”).

As further evidence of pretext, Ms. Rudin points to the

fact that Bowen failed to follow LLCC’s hiring policies.

Specifically, she submits that Bowen failed adequately

to take into consideration the recommendations of the

Screening Committee and that he failed to attach a summary

of the Committee’s deliberations to his ultimate recommen-

dation of Hudson. This court has held in the past that an

employer’s failure to follow its own internal employment

procedures can constitute evidence of pretext. See Giacoletto

v. Amax Zinc Co., Inc., 954 F.2d 424, 427 (7th Cir. 1992). As

we have discussed above, the record supports the conclu-

sion that the hiring process in this case departed from the

process contemplated by LLCC’s own Guidelines.

Ms. Rudin also claims that pretext is shown from the fact

that she was more qualified than Hudson. Therefore, she

contends, “the notion that Mr. Hudson was the more

qualified is simply not true.” Appellant’s Br. at 40. How-

26 No. 04-3711

ever, “the pretext inquiry focuses on whether the employer’s

stated reason was honest, not whether it was accurate.”

Helland v. South Bend Cmty. Sch. Corp., 93 F.3d 327, 330 (7th

Cir. 1996). Thus, even if Ms. Rudin could prove she is more

qualified than Hudson (a question we need not take up),10

that fact would not show pretext as long as LLCC believed

Hudson to have the superior qualifications. We do not

believe that Ms. Rudin’s qualifications, whether or not they

were superior to Hudson’s, are probative of the truthfulness

of LLCC’s stated justification for hiring Hudson.

As her final evidence of pretext, Ms. Rudin also contends

that race was a factor in the decision to hire Hudson and

that Bowen was under administrative pressure to hire a

minority candidate. To the extent that it is untruthful for

LLCC to deny that it considered Hudson’s race, in the

face of the clear evidence that LLCC’s hiring process

gave a strategic advantage to racial minorities, these

grounds provide some evidence of pretext. See, e.g., Perdomo

v. Browner, 67 F.3d 140, 145 (7th Cir. 1995) (“Because a fact-

finder may infer intentional discrimination from an em-

ployer’s untruthfulness, evidence that calls truthfulness into

question precludes summary judgment.”). However, these

two closely-related contentions are more properly consid-

ered probative of the question of whether LLCC discrimi-

nated against Ms. Rudin based on race than whether LLCC’s

stated justification is a mere pretext for sex discrimination.

At trial, evidence of pressure to hire or preference for hiring

a racial minority would not support a reasonable inference

10

We note, however, that “[a]n employee’s self-serving state-

ments about [her] ability . . . are insufficient to contradict an

employer’s negative assessment of that ability.” Gustovich v.

AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992).

No. 04-3711 27

of sex discrimination. See Millbrook v. IBP, Inc., 280 F.3d

1169, 1174 (7th Cir.) (holding that question at trial is

whether there is sufficient evidence to support a finding that

the employer discriminated against the plaintiff based on

the protected ground), cert. denied, 537 U.S. 884 (2002).

Viewing all facts in the light most favorable to Ms. Rudin

and drawing all inferences in her favor, we conclude that a

rational jury could indeed believe that LLCC was

not truthful about its proffered reasons for hiring Hud-

son. Therefore, we reverse the district court’s grant of

summary judgment on Ms. Rudin’s sex discrimination

claim.

Conclusion

For the foregoing reasons, the judgment of the district

court is reversed, and the case is remanded for proceed-

ings consistent with this opinion.

REVERSED and REMANDED

28 No. 04-3711

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-25-05