Molly Joll v. Valparaiso Community Schools

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-3630

MOLLY JOLL,

Plaintiff-Appellant,

v.

VALPARAISO COMMUNITY SCHOOLS,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:16-cv-00338-JEM — John E. Martin, Magistrate Judge.

____________________

ARGUED DECEMBER 4, 2019 — DECIDED MARCH 20, 2020

____________________

Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff Molly Joll is an accom-

plished runner and an experienced running coach. She ap-

plied for a job as the assistant coach of a high school girls’

cross-country team. The high school hired a younger man for

the job but invited Joll to apply for the same position on the

boys’ team. So she did—and the high school hired a younger

man again. She filed this suit for sex and age discrimination.

After discovery, the district court granted summary judgment

2 No. 18-3630

for the school district, concluding that Joll had not offered

enough evidence of either form of discrimination to present

to a jury.

We reverse the dismissal of Joll’s sex discrimination claim.

The district court appears to have erred by doing what we

have repeatedly said a court should not: “asking whether any

particular piece of evidence proves the case by itself,” rather

than aggregating the evidence “to find an overall likelihood

of discrimination.” Ortiz v. Werner Enterprises, Inc., 834 F.3d

760, 763, 765 (7th Cir. 2016). Joll offered evidence that would

allow a reasonable jury to find that the school district used

hiring procedures tilted in favor of the male applicants, ap-

plied sex-role stereotypes during the interview process, and

manipulated the criteria for hiring in ways that were incon-

sistent except that they always favored the male applicants. A

reasonable jury might also find no sex discrimination, but on

this record, the decision belongs to a jury.

I. Facts for Summary Judgment

We state the case in the light reasonably most favorable to

Joll, giving her the benefit of conflicts in the evidence and rea-

sonable inferences from the evidence, but without vouching

for the objective truth of any fact or expressing any opinion

on the weight of the evidence. Garofalo v. Village of Hazel Crest,

754 F.3d 428, 430 (7th Cir. 2014); Lewis v. City of Chicago, 496

F.3d 645, 651 (7th Cir. 2007).

Defendant Valparaiso Community Schools operates Val-

paraiso High School and Thomas Jefferson Middle School,

two public schools in northwestern Indiana. Joll has been a

teacher at the middle school for more than twenty-five years.

No. 18-3630 3

For twelve years, from 2005 to 2013, she co-coached the mid-

dle school boys’ and girls’ cross-country team. In 2013 she re-

signed the middle school coaching position to better support

her two daughters in their high school and college running

careers. “It wasn’t fair” to the cross-country program, as Joll

thought and explained at the time, for her to divide her time

between the program and her daughters.

By 2014 her older daughter’s running career had come to

a close, so Joll again had the time to devote to coaching. Her

old position at the middle school had been filled, but the high

school was hiring an assistant coach for the girls’ cross-coun-

try team. On June 17, Joll sent letters of interest in the position

to high school principal Reid Amones and high school athletic

director Herb Hofer. That was “the normal process” for ap-

plying, according to Hofer.

At first Joll heard nothing back. Around the end of June,

she emailed Hofer and enlisted the help of her union presi-

dent and vice-president. Finally, on July 3, Joll received a text

message from the girls’ head coach, Adam Nellessen, asking

whether she would be available for an interview two days

later, on July 5. Joll said she would be. While athletic director

Hofer ordinarily would have conducted the interview with

coach Nellessen, knee surgery prevented Hofer’s attendance

on July 5. His place was taken by principal Amones.

Normally, according to Hofer, interviewers would ask ap-

plicants “what their qualifications are,” “what experiences

they have, what drew them to the job.” Joll has substantial ex-

perience both as a coach and as a runner herself. She ran cross-

country and track all four years of high school and attended

Indiana State University, an NCAA Division I school, on a full

4 No. 18-3630

athletic scholarship for both sports. After receiving her mas-

ter’s degree in education, Joll spent about five years as the

girls’ track coach at a junior high school in central Indiana,

with a one-year stint as a volunteer track coach at a school in

the United Kingdom as part of a Fulbright teachers’ exchange

program.

Joll then began her more than twenty years with Val-

paraiso Community Schools and its athletics programs. From

1991 to 1995, Joll was the assistant girls’ track coach at Val-

paraiso High School; she was the co-coach of the girls’ track

team at Thomas Jefferson Middle School from 1995 to 2005.

For part of the same period, from 1994 to 2004, she was an

assistant women’s and men’s cross-country coach at Val-

paraiso University, also a Division I school. Finally, as men-

tioned above, Joll co-coached the middle school’s cross-coun-

try team from 2005 until 2013, when her daughters’ athletic

careers led her to resign that position. Throughout this period

Joll also coached a local youth running club as a volunteer.

There is no evidence, however, that this wealth of experi-

ence was discussed much during Joll’s July 5, 2014 interview

with coach Nellessen and principal Amones for the position

with the high school girls’ team. Rather, Joll fielded questions

about resigning her middle school coaching position in 2013

and whether her parenting duties would permit her to devote

sufficient time to coaching at the high school. She was em-

phatic that they would.

Given Joll’s 2013 resignation from the middle school

coaching position, such questions might have seemed unre-

markable. In this case, however, the only other applicant was

John Arredondo, a forty-year-old man who was eventually

hired for the position. Arredondo had also resigned a cross-

No. 18-3630 5

country coaching position in 2013 for family reasons. During

his interview with Nellessen and Amones, however, Arre-

dondo was not asked about his family life. He was asked in-

stead about his “coaching experience, what my coaching phi-

losophy is, a lot of shop talk.” In other words, the three men

“talked shop.” Joll had to talk parenting.

The differences in the high school’s hiring process did not

end there. According to athletic director Hofer, the school’s

ordinary course was to check an applicant’s references only

after the decision had been made to recommend his hiring to

the school board, the school district’s final decision-maker on

personnel matters. That is how the school proceeded with Ar-

redondo. Joll’s references, however, were contacted within

days of her interview on July 5.

The high school heard from at least three of Joll’s seven

references. Two gave her unqualified recommendations, sub-

mitting lengthy narratives praising her as a “respected

leader” and a “great role model.” Aaron Crague, head coach

of the high school’s boys’ cross-country team, whom Joll had

coached when he was a student-athlete at Valparaiso Univer-

sity, pointed to Joll’s “authentic knowledge gleaned” as a run-

ner herself. He said “she would do a fine job collaborating

with Coach Nellessen.” It had been Crague’s experience that

Joll had “always done a great job supporting and compli-

menting [sic] the head coach.”

A third reference was generally strong but less favorable

on the latter point. Jim Polite, the middle school’s principal,

opined in a brief, three-point email to Amones that Joll’s fit-

ness to serve in a subordinate role “would be my only con-

cern.” Joll, thought Polite, “has a dominate [sic] personality.”

(The parties assume he meant “dominant personality.”)

6 No. 18-3630

Amones forwarded Polite’s email to Hofer with the one-sen-

tence comment, “The 3rd one I got,” seemingly referring to

the “dominate personality” comment, the third of Polite’s

comments.

On July 18, Hofer called Joll to tell her the school had cho-

sen Arredondo because he had “more current experience

working with high school age athletes.” That was true as far

as it went, despite Joll’s much more extensive experience as a

coach and runner. Arredondo had coached the boys’ cross-

country team at a different high school outside the school dis-

trict from 2008 to 2013. Joll had last professionally coached

high schoolers in 1995. There is no evidence of how the differ-

ence between middle school and high school athletes or be-

tween high school and college athletes was material to the as-

sistant coach position, and Polite saw “no reason” why Joll’s

middle school experience “wouldn[’]t translate to the HS

level.”

In the meantime, Joll had learned that there would also be

a not-yet-publicized opening for an assistant coach of the

boys’ high school cross-country team. She told athletic direc-

tor Hofer that she intended to apply for that position as well.

Around the end of July, Joll received a message from Crague,

the boys’ head coach, asking her to interview for the position

on the boys’ team.

The interview was conducted by athletic director Hofer

and coach Crague. Again Joll was called on to convince her

interviewers that she was willing to devote the necessary time

to coaching, notwithstanding her family responsibilities.

Again there is no evidence she was asked to “talk shop” with

the two men interviewing her. Again Joll lost out to a younger

man who was the only other applicant, a twenty-eight-year-

No. 18-3630 7

old named Ben Kerezman. Again Joll’s references were han-

dled differently than the successful applicant’s. Kerezman’s

references were not checked at all because, according to Ho-

fer, “he was a teacher within our system” (so was Joll) and

because Hofer knew him personally (as Crague knew Joll per-

sonally; he had been a reference for her for the girls’ team job).

Unlike Arredondo, Kerezman did not have more recent

professional experience coaching high school cross-country

runners compared to Joll. But for this hiring decision, recency

of professional experience with high school athletes was no

longer the relevant criterion. Instead, Hofer told Joll at the

time, Kerezman had been preferred because he had “better

rapport with the boys.” Kerezman was a teacher at the high

school and so, says the school district, “was familiar with

many of the cross-country [team] members,” though there is

otherwise no evidence of what Kerezman’s “rapport with the

boys” was.

There is also no evidence and no explanation why “rap-

port with the girls” did not assume similar importance in hir-

ing the assistant for the girls’ team. That would have been bad

for Arredondo and good for Joll: Arredondo was a teacher at

an out-of-district high school whose only opportunity to build

“rapport with the girls” had been a five-week stint as a volun-

teer coach on the girls’ team beginning June 2014, just before

he was hired. Joll, on the other hand, had coached many of the

high school runners, both boys and girls, as middle schoolers.

As it turns out though, “rapport with the boys” may not

actually have been all that relevant to Crague and Hofer’s de-

cision about the boys’ team. Rather, Hofer later testified, the

“only factors” considered in hiring the boys’ assistant were

“being a teacher within the building, the HS building,” and

8 No. 18-3630

“recent coaching experience in the high school ranks.” At least

with respect to professional coaching (both Joll and Kerezman

had recent volunteer experience with high school cross-coun-

try runners), the latter cannot be squared with the school dis-

trict’s own account of Kerezman’s resume, nor with Hofer’s

own statement that “coaching experience” was not consid-

ered in the hiring process “because we already decided from

working in the building as being [sic] a very valuable thing for

our program.”

As for “being a teacher within the building,” as with “rap-

port,” there is no evidence or explanation why the putative

single most important qualification for the boys’ assistant ap-

parently played no role at all in hiring the girls’ assistant.

Again that would have been bad for Arredondo and good for

Joll. Though neither taught at the high school, Joll at least

taught within the school district and as noted had already

coached many of the high school runners as middle schoolers.

In July 2016, Joll brought this suit against the school dis-

trict in the Northern District of Indiana alleging violations of

her rights under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2, and the Age Discrimination in Employ-

ment Act (ADEA), 29 U.S.C. § 623. The district court had ju-

risdiction under 28 U.S.C. § 1331. Magistrate Judge Martin

heard and decided the case with the parties’ consent under

28 U.S.C. § 636(c)(1). After discovery, the court granted de-

fendant’s motion for summary judgment on both counts of

the complaint and entered final judgment against Joll. After

the court denied her motion to reconsider, Joll appealed. We

have jurisdiction under 28 U.S.C. § 1291.

No. 18-3630 9

II. Analysis

We review the district court’s grant of summary judgment

de novo. Garofalo v. Village of Hazel Crest, 754 F.3d 428, 430 (7th

Cir. 2014). Summary judgment is appropriate if there are no

genuine disputes of material fact and the movant is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a); Garofalo,

754 F.3d at 430. The maxims of summary judgment are famil-

iar—no weighing the evidence, no credibility determinations,

draw all non-speculative inferences in favor of the non-

movant—but they are more easily recited than applied. John-

son v. Advocate Health and Hosp. Corp., 892 F.3d 887, 893–94 (7th

Cir. 2018). They define the outer limits of Joll’s right to “the

commonsense judgment of [her] community,” Taylor v. Loui-

siana, 419 U.S. 522, 530 (1975), and to the generous latitude the

court accords it. We entrust a great deal to the jury’s human

experience: that “strong drink strips the mind of its pretences

and brings out into the open what is hidden in a man’s heart,”

for example, United States v. Bloch, 718 F.3d 638, 643 (7th Cir.

2013); that four days shackled to the wall of an interrogation

room is unreasonable policing, Lopez v. City of Chicago, 464

F.3d 711, 720 (7th Cir. 2006); that “a 16-year-old girl in the

company of three adult men” is “the least likely of the four to

be carrying … heavy handguns.” County Court v. Allen, 442

U.S. 140, 163–64 (1979). We allow a jury to infer a great deal

without mathematical precision. Standard Oil Co. v. Van Etten,

107 U.S. 325, 334 (1882). “It is always possible for … logicians

to examine what appears to be a reasonable inference and to

show how that inference is actually the sum of several shorter

inferential steps,” but it “would ignore common sense” to

prohibit all inferences “except those which cannot be broken

down any further.” United States v. An Article of Device, 731

F.2d 1253, 1263 (7th Cir. 1984). In short, trials are stories, not

10 No. 18-3630

syllogisms. Old Chief v. United States, 519 U.S. 172, 187–89

(1997). Accordingly, the court must try to focus on the most

persuasive story possible on the non-movant’s behalf when

asking whether a verdict in her favor would be reasonable or

could result only from irrational speculation.

Before answering that question here, however, we try to

clear up some confusion that has so far affected the arguments

in this case.

A. Scope of Review

When the school district moved for summary judgment, it

addressed essentially the same arguments to both of Joll’s

claims for sex and age discrimination, arguing that both

claims were subject to the same standard and analysis and

that both failed to satisfy the familiar standard, stemming

from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Joll

might have opposed the motion in part by pointing out that

the McDonnell Douglas test is only one means, not an end in

itself; that Title VII and ADEA causation standards are not al-

ways the same because of the availability of mixed-motive

claims under Title VII but not the ADEA; and that determin-

ing whether one factor was causal demands a different factual

analysis than determining whether a different factor was

causal.

That is not how Joll argued the case in the district court.

Instead, her opposition picked up where the school district

left off—without distinguishing between Title VII and the

ADEA or between sex and age. She argued that evidence of

sex stereotyping and pretextual justification presented triable

issues under McDonnell Douglas, with one fleeting reference

to “mixed-motives.” See Gross v. FBL Fin. Servs., Inc., 557 U.S.

No. 18-3630 11

167, 173–76 (2009) (Title VII allows “mixed-motive” claims,

but with limited remedies, while ADEA requires plaintiff to

prove “but-for” causation).

On appeal, Joll has spent a good bit of energy arguing that

the district court “improperly applied the outdated McDon-

nell Douglas framework to this mixed motive case of sexual

[sic] discrimination.” This assertion is triply curious given

Joll’s exclusive reliance on that same framework at summary

judgment, its plaintiff-friendly operation in the ordinary case,

and our recent reaffirmation of its continuing vitality. See

Ortiz, 834 F.3d at 766. In any event, Joll’s waivers “in the truest

sense” here and in the district court, G & S Holdings LLC v.

Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012), preclude our

review of the ADEA claim at all and of the Title VII claim un-

der a mixed-motive standard. We are left with her argument

on appeal that a reasonable jury could find Joll would have

been hired as an assistant cross-country coach if she were

male “and everything else had remained the same.” Ortiz, 834

F.3d at 764. On that score, we agree with Joll.

B. Title VII

In general, Title VII prohibits intentional discrimination in

employment on the basis of statutorily proscribed factors, in-

cluding sex. 42 U.S.C. § 2000e-2(a)(1); Ripberger v. Corizon, Inc.,

773 F.3d 871, 877 (7th Cir. 2014); Atanus v. Perry, 520 F.3d 662,

671–72 (7th Cir. 2008). In this case, as in many discrimination

cases, “the sole question that matters” is causation: whether a

statutorily proscribed factor caused a failure to hire. Ortiz v.

Werner Enterprises, Inc., 834 F.3d 760, 764–65 (7th Cir. 2016).

Direct as well as circumstantial evidence may support an in-

ference of causation, and thus intent. Id. at 764; Troupe v. May

Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). “To clarify

12 No. 18-3630

and to simplify” her task, a plaintiff may choose to enlist the

burden-shifting framework of McDonnell Douglas. Coleman v.

Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concur-

ring); accord, Ortiz, 834 F.3d at 766.

“In order to make out a case of sex discrimination without

resorting to McDonnell Douglas, a plaintiff must provide either

direct or circumstantial evidence that supports an inference of

intentional discrimination.” Coffman v. Indianapolis Fire Dep’t,

578 F.3d 559, 563 (7th Cir. 2009). We have identified three

broad types of circumstantial evidence that will support an

inference of intentional discrimination: ambiguous or sugges-

tive comments or conduct; better treatment of people simi-

larly situated but for the protected characteristic; and dishon-

est employer justifications for disparate treatment. Troupe, 20

F.3d at 736. Joll has offered some of each type. Taken together,

her evidence would permit a reasonable jury to infer “an over-

all likelihood of discrimination” that merits a trial, not sum-

mary judgment. Ortiz, 834 F.3d at 763.

A jury could reasonably infer that athletic director Hofer

and principal Amones simply did not want to hire a woman

for either assistant coach position, and that they did what they

could, short of admitting it, to ensure that the only woman

applicant would not be hired. (Employers long ago “taught

their supervisory employees not to put discriminatory beliefs

or attitudes into words oral or written.” Troupe, 20 F.3d at

736.) Looking at the evidence as a whole, as we must, a jury

No. 18-3630 13

could reasonably find that Hofer and Amones bent the rules

in Arredondo and Kerezman’s favor and to Joll’s detriment.1

We can begin with differential treatment in the selection

process itself. Joll had trouble simply securing an initial inter-

view for the girls’ job, suggesting a baseline reluctance to en-

tertain her candidacy. After the interview, her references were

contacted sooner than was ordinary (with important conse-

quences for her), while Arredondo’s were contacted later, as

was usual, and Kerezman’s not at all—suggesting a higher

baseline of scrutiny for Joll.

1 We agree with the dissenting opinion that discrete adverse employ-

ment actions give rise to discrete claims that must be evaluated individu-

ally. Post at 32. The jury accordingly may find the school district liable for

one, both, or neither of the two failures to hire alleged here. Nevertheless,

the closeness in time and the similarity of the positions permit, indeed in-

vite, a useful comparison between the two hiring processes in determining

what inferences the evidence reasonably permits.

As for the identity of the decisionmaker, see post at 32 n.2, the record

permits the reasonable inference that Hofer and Amones made both hiring

decisions, with Hofer as the more active partner. Though there is a bit of

conflicting evidence on this point, some of which is pointed out below,

according to the school district the hiring decision for the girls’ position

“was made by” Nellessen, Hofer, and Amones; the hiring decision for the

boys’ position “was made by” Hofer and Crague. While Amones filled in

for Hofer at the interview for the girls’ position, it was usually Amones’s

more limited role to approve and forward Hofer’s hiring recommenda-

tions to the school board. With respect to the head coach’s usual role, Ho-

fer’s testimony that a head coach had “never” disagreed with his hiring

recommendation suggests the decision was effectively Hofer’s, subject

generally to Amones’s approval and, exceptionally in this case, his some-

what greater involvement in hiring the girls’ coach.

14 No. 18-3630

Evidence about the interviews does not require, but cer-

tainly permits, an inference that the decision-makers were in-

dulging sex-role stereotypes as they approached the deci-

sions. As Joll told the school district at the time, she resigned

the middle school position in 2013 precisely from a desire not

to give the program less than its due. Yet her 2014 declaration

of full commitment to coaching was met with skepticism and

discounted. Job interviewers are of course entitled to probe

applications in relevant ways, and they are not required to

take an applicant’s answers at face value. Those questions by

themselves would not necessarily show bias. But the telling

twist in this case is that, although family matters had recently

prompted his resignation from a similar position, Arre-

dondo’s commitment was not questioned. He “talked shop,”

not kids, with the interviewers.

Basing an employment decision on an employer’s notions

of how women do or ought to behave—the employer’s sex-

role stereotypes—is discrimination “because of sex.” See

Hively v. Ivy Tech Comm. Coll. of Ind., 853 F.3d 339, 345–47 (7th

Cir. 2017) (en banc), discussing among others Price Waterhouse

v. Hopkins, 490 U.S. 228 (1989). The notion that a woman is or

ought to be dedicated to family above work is one long-stand-

ing such stereotype. Nevada Dep’t of Human Res. v. Hibbs, 538

U.S. 721, 731, 736 (2003) (holding FMLA family leave provi-

sion validly abrogated state sovereign immunity: “pervasive

sex-role stereotype that caring for family members is

women’s work,” in turn “foster[ing] employers’ stereotypical

views about women’s commitment to work and their value as

employees”).

No. 18-3630 15

A jury could find that the interviewers’ questions, at least

when they were asked only of Joll and not of a similarly situ-

ated male applicant, reflected such stereotyping. See Lust v.

Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004) (sustaining jury

verdict for plaintiff: “Most important, Penters admitted that

he didn’t consider recommending Lust for the Chicago posi-

tion because she had children and he didn’t think she’d want

to relocate her family, though she hadn’t told him that.”);

Bruno v. City of Crown Point, 950 F.2d 355, 362 (7th Cir. 1991)

(reversing jury verdict on other grounds, but acknowledging:

“The fact that Pyle asked only Bruno family-oriented ques-

tions reveals that those questions were based on sex stereo-

types—namely, that females are the primary care providers

for children … .”); id. at 365 (Easterbrook, J., dissenting) (“pa-

ternalistic questions” about husband’s views of job applica-

tion and plans to have additional children supported infer-

ence of sex discrimination so that verdict should have been

upheld).

As noted, Joll’s references were contacted more quickly

than usual. A jury could find that this deviation from stand-

ard procedures also lends support to her claims. See, e.g.,

Baines v. Walgreen Co., 863 F.3d 656, 664 (7th Cir. 2017) (revers-

ing summary judgment); Coleman, 667 F.3d at 858 (reversing

summary judgment; explaining that selective enforcement of

company policy can establish pretext); Gordon v. United Air-

lines, Inc., 246 F.3d 878, 891–92 (7th Cir. 2001) (same); see also

United States ex rel. Hamrick v. GlaxoSmithKline LLC, 814 F.3d

10, 22 (1st Cir. 2016) (“[D]eviations from standard procedures

can give rise to an inference of pretext.”) (quotations omitted);

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

(affirming jury verdict for age-discrimination plaintiff where

16 No. 18-3630

employer fired him without following its standard proce-

dures, including helping employees overcome deficiencies),

citing among others Johnson v. Lehman, 679 F.2d 918, 922 (D.C.

Cir. 1982) (“departure from internal hiring procedures is a fac-

tor that the trier of fact may deem probative”).

With respect to the references, a jury could find further ev-

idence that the school district strained to reject Joll’s applica-

tions based on sex-role stereotypes. The decision-makers dis-

counted the two long and positive narratives from a runner

coached by Joll and from Crague, the head coach of the high

school boys’ team (whose opinion, recall, was that Joll had

“always done a great job supporting and complimenting [sic]

the head coach”), in favor of middle school principal Polite’s

isolated comment that Joll has a “dominate personality.”

A jury could think that Polite’s phrase was an odd way to

say “insubordinate,” if that was what was understood. In-

deed, at the risk of indulging in some other stereotypes, it’s

easy to think that a dominant personality is often viewed as a

virtue of at least male athletic coaches. The point is not that the

school district hired “dominant” male coaches but not “dom-

inant” female coaches. The point is that a jury could draw on

its experience to conclude that the same behavior may be la-

beled “assertive” in a man and “aggressive” in a woman. In

other words, a reasonable jury could conclude that Joll was

being penalized for transgressing the age-old stereotype that

women are or ought to be submissive. See Hopkins, 490 U.S. at

250 (plurality) (“[A]n employer who acts on the basis of a be-

lief that a woman cannot be aggressive, or that she must not

be, has acted on the basis of gender.”); 29 C.F.R. § 1604.2

No. 18-3630 17

(“Such stereotypes include, for example, … that women are

less capable of aggressive salesmanship.”).2

A jury could infer further that the signal was received im-

mediately by principal Amones and athletic director Hofer

(“The 3rd one I got.”) and operated so powerfully that it over-

rode the contrary opinion of coach Crague (who would have

been the one to deal with any insubordination or “domina-

tion” by Joll, at least on the boys’ team) and even the more

complete and balanced opinion of Polite, which was that if Joll

“already has a good relationship with the head coach,” as she

did with Crague, “it would probably be fine.” Of course, we

agree with the dissenting opinion that a jury could reasonably

conclude that what we have characterized as evidence of sex-

stereotyping was in fact entirely innocent conduct. Some am-

biguity inheres in all employer remarks that fall short of ad-

mitting discrimination while still supporting an inference of

it. This ambiguity is the very reason the jury must be called.

Sheehan v. Donlen Corp., 173 F.3d 1039, 1044–45 (7th Cir. 1999)

(affirming plaintiff’s verdict for pregnancy discrimination;

jury was not required to accept proffered innocent interpreta-

tion of remarks that could also be understood as reflecting

sex-role stereotypes).

The evidence reviewed so far is sufficient to warrant a

trial, but there is more support from comparing the hiring cri-

teria for the boys’ and girls’ team jobs. The defendant’s stated

2 In the district court and on appeal, the parties have argued a good

deal about Joll’s proffered expert on implicit bias, but mutatis mutandis “[i]t

takes no special training to discern sex stereotyping in a description of an

aggressive female employee as requiring ‘a course at charm school.’” Hop-

kins, 490 U.S. at 256 (plurality).

18 No. 18-3630

reasons for hiring for these nearly identical jobs were incon-

sistent with each other. What was consistent was that, in each

case, the stated reasons and criteria favored the male appli-

cant. From the shifting criteria that favored the male appli-

cants, a jury could infer that the different stated reasons were

not honest and were pretexts for sex discrimination.

When the male applicant for the girls’ job (Arredondo)

had more recent experience than Joll professionally coaching

high school cross country (though much less experience over-

all), the school district said that was the controlling factor.

When the male applicant (Kerezman) was “in the building”

during the school day with the opportunity to build “rapport

with the boys,” that became the controlling factor instead.

Joll’s long presence in the middle school and in the school sys-

tem with opportunity to build “rapport with the girls” was

not considered in her favor vis-à-vis Arredondo. Her more ex-

tensive and apparently more recent professional experience

coaching high schoolers was not considered in her favor vis-

à-vis Kerezman. Further, Polite’s opinion, given such weight

as to Joll’s “dominate personality,” was apparently given no

weight at all as to the transferability of Joll’s middle school

experience to the high school setting. These inconsistent

choices of criteria for nearly identical jobs are not necessarily

decisive in Joll’s favor, but they could certainly support a

jury’s inference that the real reasons for the decisions were

based on sex.

Employment discrimination law has long recognized that

an employer’s dishonest explanation of a decision can sup-

port an inference that its real reason was unlawful. If the jury

does “not believe the employer’s explanation for its decisions,

No. 18-3630 19

it may infer that the employer is trying to cover up … discrim-

ination,” Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994),

“particularly if disbelief is accompanied by a suspicion of

mendacity.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993). See generally McDonnell Douglas, 411 U.S. at 804–05

(suggesting types of evidence that would support finding of

pretext). In other words, the jury may infer that “the real rea-

son was a forbidden one.” Testerman v. EDS Tech. Prods. Corp.,

98 F.3d 297, 303 (7th Cir. 1996); see also Troupe, 20 F.3d at 736.

Again, however, we emphasize that Joll does not rest her case

on pretext alone. A plaintiff is required to show pretext when

her only other evidence of discrimination is the prima facie

McDonnell Douglas showing. Anderson v. Baxter Healthcare

Corp., 13 F.3d 1120, 1123–24 (7th Cir. 1994). Where the plaintiff

does not rely solely on McDonnell Douglas, she may survive

summary judgment even without evidence that the em-

ployer’s explanation is dishonest. Venters v. City of Delphi, 123

F.3d 956, 974 (7th Cir. 1997).

A further indicator of less than perfect forthrightness is

Hofer’s fluctuating accounts of his involvement in hiring the

girls’ coach. See, e.g., Stalter v. Wal-Mart Stores, Inc., 195 F.3d

285, 291 (7th Cir. 1999) (reversing summary judgment for em-

ployer); E.E.O.C. v. C.G. Schmidt, Inc., 670 F. Supp. 2d 858, 869

(E.D. Wis. 2009) (denying summary judgment: “CGS has

shifted their story on who was involved in the decision to lay

off Jackson, providing some evidence, albeit not very strong

evidence on its own, that retaliation occurred.”). In his depo-

sition, Hofer testified that “Dr. Amones and the head coach

Adam Nellessen made that decision.” In his affidavit, he tes-

tified: “The decision as to which candidate to recommend for

the position was made by all three of us,” that is, Hofer,

Amones, and Nellessen.

20 No. 18-3630

Another indicator of pretext are the shifts in relevant qual-

ifications outlined above, with their consistent operation in

the men’s favor, both as between the girls’ and boys’ positions

and as between the event and the litigation. See, e.g., Stalter,

195 F.3d at 291 (“Stalter presents one more piece of persuasive

evidence, and that is that Wal-Mart changed its story between

the time of the state administrative proceeding and the federal

action.”), citing Emmel v. Coca-Cola Bottling Co. of Chi., 95 F.3d

627, 634 (7th Cir. 1996), and Perfetti v. First Nat’l Bank of Chi.,

950 F.2d 449, 456 (7th Cir. 1991). We have said time and again

(in more than one hundred reported opinions, by our count)

that we are not a super-personnel department that will sub-

stitute our criteria for an employer’s for hiring, promoting, or

disciplining employees. See, e.g., Grant v. Trustees of Indiana

Univ., 870 F.3d 562, 570 (7th Cir. 2017); Dale v. Chicago Tribune

Co., 797 F.2d 458, 464 (7th Cir. 1986). That hesitation and the

often subjective character of many employment decisions can

make it difficult for a lone plaintiff to show that a single em-

ployment decision was made for unlawful reasons. But incon-

sistent explanations, especially from the same decision-mak-

ers about similar decisions near the same time, can support an

inference of unlawful intent.

We conclude with a few observations on the district

court’s analysis. First, as a general matter it cannot be empha-

sized too strongly: “Evidence must be considered as a whole,

rather than asking whether any particular piece of evidence

proves the case by itself … . Evidence is evidence. Relevant

evidence must be considered and irrelevant evidence disre-

garded,” and the case must be assessed for an “overall likeli-

hood of discrimination.” Ortiz, 834 F.3d at 765, 763.

No. 18-3630 21

More specifically, the district court quoted our opinion in

Millbrook v. IBP, Inc., 280 F.3d 1169, 1180–81 (7th Cir. 2002):

“where an employer’s proffered non-discriminatory reason

for its employment decision is that it selected the most quali-

fied candidate, evidence of the applicants’ competing qualifi-

cations does not constitute evidence of pretext unless … no

reasonable person … could have chosen the candidate se-

lected over the plaintiff for the job in question” (internal quo-

tation marks omitted).

We have tried to make clear that the Millbrook rule applies

only where “the plaintiff relies exclusively on evidence of the

applicants’ comparative qualifications.” David v. Caterpillar,

Inc., 324 F.3d 851, 863 (7th Cir. 2003) (emphasis added); see

also, e.g., Robertson v. State of Wis. Dep’t of Health Servs., 949

F.3d 371, 381 (7th Cir. 2020) (“the plaintiff’s qualifications

alone do not establish evidence of pretext”). This is not such

a case. Joll has presented much more evidence beyond the

comparison of qualifications. And again, Joll would be re-

quired to show pretext only if she were proceeding under

McDonnell Douglas and had no evidence of discrimination be-

yond her prima facie case. Anderson, 13 F.3d at 1123–24.

Second, in response to Joll’s evidence of the shifting crite-

ria for the two hiring decisions, the district court cited two

non-precedential orders of this court for the proposition that

no inference of discrimination arises where the successful ap-

plicant turns out to have self-evidently better or broader qual-

ifications that merely happened not to be listed in the initial

job solicitation. Tai v. Shinseki, 325 F. App’x 444, 447 (7th Cir.

2009) (chosen applicant had “a more diverse range of experi-

ences and showed more enthusiasm”); Currie v. Paper Convert-

ing Mach. Co., 202 F. App’x 120, 122 (7th Cir. 2006) (“Ropson

22 No. 18-3630

claimed in his application that he could operate both a jig bore

and a boring bar.”) These non-precedential orders are—well,

non-precedential. On the relevant point of comparative qual-

ifications, however, both orders quoted Mlynczak v. Bodman,

442 F.3d 1050, 1059 (7th Cir. 2006), which in turn quoted

Millbrook. In Millbrook, as noted, the comparative qualifica-

tions were the plaintiff’s only evidence of unlawful motive in

addition to the prima facie case. Again, that does not describe

the facts of this case; evidence of Joll’s stronger qualifications

is only part of her evidence of sex discrimination. Neither of

the cited non-precedential orders involved inconsistent

changes in hiring criteria that had the effect of favoring one

sex or race over another across multiple decisions.

Finally, the district court also erred to the extent it dis-

missed Joll’s evidence of sex-role stereotyping as mere “stray

remarks” that were not probative of unlawful intent in the hir-

ing decision. The “stray remarks” rationale can be applied

only to remarks that are not part of the decision-making pro-

cess itself. See, e.g., Overly v. KeyBank, N.A., 662 F.3d 856, 865

(7th Cir. 2011) (affirming summary judgment where highly

offensive remark was made after plaintiff resigned); Davis v.

Time Warner Cable of Southeastern Wis., L.P., 651 F.3d 664, 672–

73 (7th Cir. 2011); see also Hunt v. City of Markham, 219 F.3d

649, 652–53 (7th Cir. 2000) (warning against over-reading

“stray-remarks” cases: “All that these cases hold—all that they

could hold and still make any sense—is that the fact that

someone who is not involved in the employment decision of

which the plaintiff complains expressed discriminatory feel-

ings is not evidence that the decision had a discriminatory mo-

tivation.”). But Joll’s evidence comes from the decision-mak-

ers during the decision process.

No. 18-3630 23

In considering a defendant’s attempt to neuter a sexist or

racist comment as a stray remark, a court deciding a summary

judgment motion must keep in mind its duty to consider the

evidence as a whole and to do so in the light reasonably most

favorable to the non-moving party. A remark or action by a

decision-maker reflecting unlawful animus may be evidence

of his or her attitudes more generally. See Emmel, 95 F.3d at

632 (“Emmel does not rely on these remarks alone to prove

anything. The remarks are evidence, which together with the

other evidence in this case could lead a jury to conclude …

that the company engaged in unlawful discrimination… .

[T]he statements in question are more than just stray com-

ments … . They are from the top policymakers in the company

… . They directly address the policy at issue … .”), discussing

Hopkins, 490 U.S. at 277 (O’Connor, J., concurring in the judg-

ment); cf. Blasdel v. Northwestern Univ., 687 F.3d 813, 820 (7th

Cir. 2012) (“same actor” inference permits but does not re-

quire inference that attitudes of person who hired plaintiff, for

example, would not have changed by time same person fired

plaintiff). Similarly, the district court strayed outside the

bounds of summary judgment practice by accepting that the

“dominate personality” comment spoke simply and inno-

cently to the employer’s nondiscriminatory interest in “per-

sonality fit” and could not support an inference of discrimi-

nation. See Hopkins, 490 U.S. at 256 (plurality) (“[I]f an em-

ployee’s flawed ‘interpersonal skills’ can be corrected by a

soft-hued suit or a new shade of lipstick, perhaps it is the em-

ployee’s sex and not her interpersonal skills that has drawn

the criticism.”).

24 No. 18-3630

Conclusion

We recognize, of course, that there are ways to tell the

story of the school district’s hiring process and decision that

are entirely innocent, involving no unlawful discrimination.

The dissenting opinion illustrates several ways the defense

could argue this case to a jury. But because there is at least one

reasonable way to tell the story in favor of Joll’s claim of sex

discrimination, a jury rather than appellate judges must

choose among them.

The grant of summary judgment for the defendant on

Joll’s age discrimination claim is AFFIRMED. The grant of

summary judgment on the sex discrimination claim is

REVERSED and the case is REMANDED for trial on that

claim.

18-3630 25

RIPPLE, Circuit Judge, dissenting. In response to a motion

for summary judgment, “the non-moving party is required

to marshal and present the court with the evidence she con-

tends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,

621 F.3d 651, 654 (7th Cir. 2010). Here, the question is wheth-

er Ms. Joll came forth with sufficient evidence from which a

reasonable jury could conclude that VCS failed to hire her

for the girls’ assistant cross-country position or for the boys’

assistant cross-country position because she was a woman.

Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016).

On an appeal from the grant of summary judgment, we

view the record as a whole “and all justifiable inferences

drawn from it in the light most favorable to the party against

whom judgment was entered,” here Ms. Joll. Cheek v. W. & S.

Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994); see also Life Plans,

Inc. v. Sec. Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir.

2015). “[T]he court should give credence to the evidence fa-

voring the nonmovant as well as that evidence supporting

the moving party that is uncontradicted and unimpeached,

at least to the extent that the evidence comes from disinter-

ested witnesses.” Reeves v. Sanderson Plumbing Prods. Inc., 530

U.S. 133, 151 (2000) (internal quotation marks omitted).

However, we have not “interpret[ed] the quoted language so

broadly as to require a court to ignore the uncontroverted

testimony of company employees or to conclude, where a

proffered reason is established through such testimony, that

it is necessarily pretextual.” Traylor v. Brown, 295 F.3d 783,

791 (7th Cir. 2002).

Based on a review of the entire record, I do not believe

Ms. Joll has come forward with evidence from which a rea-

sonable jury could conclude that, had she been male, she

26 No. 18-3630

would have been awarded either of the positions for which

she applied. I therefore respectfully dissent.

I

Ms. Joll has coached cross country and track for many

years and has a long tenure of coaching in Valparaiso. From

1991 to 1995, she was the assistant girls’ track coach at Val-

paraiso High School (“VHS”). Beginning in 1994 and contin-

uing through 2004, she was the assistant men’s and women’s

cross-country coach at Valparaiso University. During the

same relative time frame (1995 to 2005), she co-coached track

and field at Thomas Jefferson Middle School in Valparaiso;

and from 2005 to 2013, she co-coached cross country at

Thomas Jefferson Middle School. Ms. Joll described her

coaching responsibilities at Thomas Jefferson Middle School

accordingly: “The way the middle school program works, …

we were both equal coaches and it’s not girls and boys. It’s a

combined program at the middle school.” R.24-1 at 4 (Joll

Dep. 12).

In 2013, Ms. Joll resigned her coaching position so that

she could travel with and watch both of her daughters com-

pete in cross country and track. At that point, one daughter

was running at Indiana State University, and one was run-

ning at VHS. Ms. Joll felt that the other coach at Thomas Jef-

ferson Middle School “needed somebody who was more

dedicated at that point in time to coaching.” Id. at 5 (Joll Dep.

16). In her resignation letter, she told the principal of Thom-

as Jefferson Middle School, Jim Polite, that she felt that

“couldn’t devote … [a] sufficient amount of time to … ade-

quately do the job.” Id. (Joll Dep. 17).

No. 18-3630 27

A. Girls’ Cross-Country Position

In 2014, Ms. Joll’s older daughter stopped running at In-

diana State, and Ms. Joll wanted to coach again. On approx-

imately June 17 of that year, Ms. Joll applied for a position as

an assistant coach with the VHS girls’ cross-country team.

See id. at 7 (Joll Dep. 22–23).

In 2014, VHS did not have a “written hiring procedure

for coaches.” R.29-4 at 2 (Hofer Dep. 9). Herb Hofer, who

was Athletic Director of VHS at the time, explained he had a

“typical … process” that he “use[d] as an AD” for the hiring

of assistant coaches. Id. at 5 (Hofer Dep. 12). His “normal

process for hiring assistant coaches” began when the posi-

tion was posted on the school system’s website. Id. Resumes

would come either to him or to the VHS Principal, Dr. Reid

Amones. Mr. Hofer and the head coach then would review

the candidates and decide whom to interview. Mr. Hofer

and the head coach would conduct the interviews and come

to a consensus as to the best candidate for the position. See

id. Mr. Hofer contacted a candidate’s references after he and

the head coach had made a hiring decision, but prior to

bringing the matter before the school board. Id. at 10 (Hofer

Dep. 32).

It is undisputed that Mr. Hofer, the person who usually

oversaw the hiring process for assistant coaches, “was hav-

ing knee surgery” at the time the interviews and delibera-

tions for the girls’ assistant cross-country coaching position

were occurring. Id. at 5 (Hofer Dep. 12); id. at 14–15 (Hofer

Dep. 36–37). Indeed, Ms. Joll emailed Mr. Hofer “towards

the end of June” to determine when interviews would be

held, and Mr. Hofer responded that “they were going to be

doing it that next week, but he had knee surgery and so he

28 No. 18-3630

was recovering from that.” R.24-1 at 7 (Joll Dep. 23). Instead,

Dr. Amones and the girls’ cross-country head coach, Adam

Nellessen, conducted the review of candidates, interviews,

and follow-up. The following week, Coach Nellessen con-

tacted Ms. Joll to ascertain if she would be available for an

interview on July 5th.

Ms. Joll’s interview lasted “[m]ore than half [of an] hour,

but less than an hour.” Id. (Joll Dep. 24). During her inter-

view, she was asked “[w]hy [she] was … applying when

[she] had resigned? What had changed?” Id. (Joll Dep. 25).

Ms. Joll explained that one of her daughters was no longer

running at the collegiate level and so she “didn’t feel pulled

to go and see her compete.” Id. at 8 (Joll Dep. 26). She also

was asked how being the parent of one of the athletes might

affect her ability to coach the rest of the team. See id. (Joll

Dep. 28–29).

Following the interview, Ms. Joll was asked to provide

references, and Dr. Amones contacted those references.

Ms. Joll received favorable recommendations from several

individuals, including Jim Polite, the principal of Thomas

Jefferson Middle School, where Ms. Joll taught and where

she had coached for eighteen years. In emailing Polite,

Dr. Amones specifically inquired whether Ms. Joll had any

“past roles serving as an assistant, or other times she has not

been the one making the final decision.” R.29-6 at 5. Polite

responded that “[t]his area would be my only concern. She

has a dominate [sic] personality. If she … already has a good

relationship with the head coach, it would probably be fine.

If not, I could envision some issues arising.” Id.

There was one other applicant interviewed for this posi-

tion: John Arredondo. From 2008 to 2014, Arredondo

No. 18-3630 29

coached in the boys’ cross-country and girls’ track programs

at Portage High School.1 From 2008 to 2013, he also coached

boys’ cross country at Portage High School. He testified that

he had resigned his positions because he was going through

a divorce; the record does not reveal whether, in his resigna-

tion letter, Arredondo provided a reason for his departure.

In the summer of 2014, Arredondo began volunteering

as a girls’ cross-country coach with VHS. When a paid posi-

tion came open, Coach Nellessen suggested to Arredondo

that he should apply. Arredondo testified that, during his

interview, he was asked about “[c]oaching experience, what

[his] coaching philosophy is, a lot of shop talk.” R.29-3 at 15

(Arredondo Dep. 37). Arredondo also was asked about

whether commuting from Portage to VHS would be a prob-

lem. Id. at 16 (Arredondo Dep. 38). There is no evidence in

the record—or at least none to which Ms. Joll has invited our

attention—that Arredondo gave Portage High School a spe-

cific reason, much less a specific family-related reason, for

resigning his coaching position. There also is no evidence in

the record that Arredondo made Coach Nellessen or

Dr. Amones aware of the reason he had resigned his position

at Portage. During Arredondo’s deposition, Ms. Joll’s coun-

1 It is unclear whether Arredondo had head coaching experience.

Ms. Joll states in her brief that he was the assistant in these positions, but

that he served one year as head coach of girls’ track in 2010. See Appel-

lant’s Br. 10. In support of this statement, Ms. Joll cites to Arredondo’s

deposition, see R.29-3 at 2 (Arredondo Dep. 5), and to his resume. How-

ever, Arredondo’s resume is not part of the record. In his deposition,

Arredondo simply states that he “coach[ed]” girls’ track and field and

boys’ cross country, but he does not specify (at least on the page refer-

enced) whether he served in a head coaching role. Id.

30 No. 18-3630

sel did not ask Arredondo whether he had informed

Coach Nellessen or Dr. Amones of the reason that he had

resigned his position. Moreover, Ms. Joll’s counsel did not

ask Arredondo whether during his interview he was ques-

tioned about familial obligations that might interfere coach-

ing responsibilities. Ms. Joll’s counsel simply asked Arre-

dondo to characterize the “type of questions” he was asked

during his interview. R.29-3 at 15 (Arredondo Dep. 37). Her

counsel’s only follow-up question regarding what Arredon-

do was asked during his interview was: “Did they ever ask

you if the commute would be an issue from Portage to Val-

paraiso?” Id. at 16 (Arredondo Dep. 38).

The decision was made by Coach Nellessen, Dr. Amones,

and Mr. Hofer to hire Arredondo. In his call explaining the

hiring decision to Ms. Joll, Mr. Hofer stated that Arredondo

had “more current experience working with high school age

athletes.” R.29-6 at 7. In his deposition and affidavit, Mr. Ho-

fer testified that Polite’s statement also caused them pause as

to whether Ms. Joll could serve in the capacity of an assis-

tant, as opposed to head coach. See R.29-1 at 4 (Hofer Aff. 2);

R.24-2 at 7 (Hofer Dep. 31).

After the decision was made to hire Arredondo,

Mr. Hofer checked Arredondo’s references in preparation

for proposing his appointment to the board. See R.29-4 at 14

(Hofer Dep. 36).

B. Boys’ Cross-Country Position

After Ms. Joll was unsuccessful in obtaining the girls’

coaching position, she applied for a position as the assistant

boys’ cross-country coach at VHS. She was interviewed for

the position by the head coach of the boys’ cross-country

No. 18-3630 31

team, Aaron Crague, as well as Mr. Hofer. Ms. Joll again was

asked about the reason she had resigned the position of

cross-country coach at Thomas Jefferson Middle School. See

R.24-1 at 13 (Joll Dep. 70). The other candidate for the posi-

tion was Ben Kerezman. Kerezman was a teacher at VHS,

had volunteered with the boys’ cross-country team and had

served as an assistant coach for the VHS boys’ track team.

Mr. Hofer and Coach Crague collectively decided to hire Ke-

rezman for the assistant coaching position.

Mr. Hofer informed Ms. Joll that she did not receive the

job because Kerezman had better rapport with the boys on

the team. See id. (Joll Dep. 72). In his affidavit, Mr. Hofer ex-

plained that this rapport stemmed from Kerezman’s volun-

teering with the cross-country team and from his serving as

a high school teacher in the same building where the team

members went to school. R.29-1 at 5 (Hofer Aff. 3). Accord-

ing to Mr. Hofer, he and Coach Crague believed that Kerez-

man’s service on the faculty was “an advantage to building,

developing and maintaining the necessary relationship with

high school athletes.” Id.

Unlike with Arredondo, Mr. Hofer did not check any ref-

erences for Kerezman. R.29-4 at 17 (Hofer Dep. 49).

Mr. Hofer explained that Kerezman’s references were not

checked because “he was a teacher at the high school,” he

had coached with the cross-country team on a voluntary ba-

sis, had been “a paid assistant for our track [program],” and

Mr. Hofer “personally kn[e]w him as a coach.” Id.

II

Ms. Joll contends, and my colleagues conclude, that she

has come forward with sufficient evidence from which a jury

32 No. 18-3630

reasonably could conclude that her gender was the reason

that she did not get either position at VHS. In doing so, they

treat her unsuccessful applications for the girls’

cross-country position and for the boys’ cross-country posi-

tion as a single determination. A “refusal to hire,” however,

is a “[d]iscrete act,” and “[e]ach incident of discrimination …

constitutes a separate actionable unlawful employment prac-

tice.” Nat’l R.R. Passenger Corp., 536 U.S. 101, 114 (2002) (in-

ternal quotation marks omitted). As such, we must evaluate

independently each of Ms. Joll’s failure-to-hire claims to de-

termine whether a statutory violation has occurred. Ford v.

Marion Cty. Sheriff’s Office, 942 F.3d 839, 858–59 (7th Cir.

2019) (evaluating each of the plaintiff’s four fail-

ure-to-promote claims, which involved positions open be-

tween March 2016 and February 2017, independently).2

A. Girls’ Cross-Country Position

My colleagues conclude that, taken collectively, the evi-

dence of sex-stereotyping, deviation from established proce-

dure, changing rationales, and disparity in qualifications

raise an inference of discriminatory intent. I evaluate each

category of evidence individually and then consider them

collectively.

2 Even if it were not the established rule that we evaluate each failure to

hire independently, here the facts would warrant such an approach. Alt-

hough the positions at issue were similar, there were a different set of

decisionmakers for each position, there were a different set of candidates

for each position, and, given Mr. Hofer’s knee surgery, there also was a

different process that governed each decision.

No. 18-3630 33

1.

In Ms. Joll’s view, the strongest argument that her gender

played a role in the decision-making process for the girls’

cross-country position was VCS’s reliance on sex-

stereotypes. According to my colleagues, there is evidence of

sex-stereotyping both in the way the interviews were con-

ducted and in Polite’s use of the term “dominant” to de-

scribe Ms. Joll.

Turning first to the interview process, my colleagues note

that the questions asked of Ms. Joll “would not necessarily

show bias.” Maj. at 14. The problem as they see it is that,

“although family matters had recently prompted his resigna-

tion from a similar position, Arredondo’s commitment was

not questioned. He ‘talked shop,’ not kids, with the inter-

viewers.” Id. However, there is no evidence in the record

that Coach Nellessen or Dr. Amones knew of the reason for

Arredondo’s resignation. Arredondo’s deposition does not

reveal what he said in his resignation letter, if that letter was

provided to Coach Nellessen or Dr. Amones, or if Arredon-

do informed Coach Nellessen or Dr. Amones about the rea-

son for his resignation. By contrast, Coach Nellessen and

Dr. Amones were aware of Ms. Joll’s specific reason for re-

signing: she wanted to be able to attend her daughters’

meets. Any focus on “kids” in the interview was prompted

by Ms. Joll’s resignation letter and does not raise an infer-

ence of discrimination.

My colleagues also agree with Ms. Joll that Polite’s email,

describing Ms. Joll as having a dominant personality, consti-

tuted sex-stereotyping that infected the decision-making

process. There is no question Polite’s evaluation of Ms. Joll

was at least a factor in the decision-making process. Given

34 No. 18-3630

that Polite had directly supervised Ms. Joll at Thomas Jeffer-

son Middle School (where Ms. Joll worked as a teacher and

had coached for eighteen years), it is not surprising that Po-

lite’s comments carried weight with Coach Nellessen and

Dr. Amones not matched by her other recommenders.

Polite’s comments, however, do not fall into the category

of “sex-stereotyping,” at least as that term traditionally has

been understood. In Price Waterhouse v. Hopkins, 490 U.S. 228

(1989), the Court held that the practice of gender stereotyp-

ing falls within Title VII’s prohibition against sex discrimina-

tion. In Hopkins, a female employee sued Price Waterhouse

for discrimination when she was not elected as a partner. In

assessing comments made by partners who evaluated Hop-

kins, the Court noted that there

were clear signs … that some of the partners

reacted negatively to Hopkins’ personality be-

cause she was a woman. One partner described

her as “macho”; another suggested that she

“overcompensated for being a woman”; a third

advised her to take “a course at charm school.”

Several partners criticized her use of profanity;

in response, one partner suggested that those

partners objected to her swearing only “be-

cause it’s a lady using foul language.” Another

supporter explained that Hopkins “ha[d] ma-

tured from a tough-talking somewhat mascu-

line hard-nosed mgr to an authoritative, for-

midable, but much more appealing lady ptr

candidate.” But it was the man who … bore re-

sponsibility for explaining to Hopkins the rea-

sons for the Policy Board’s decision to place

No. 18-3630 35

her candidacy on hold who delivered the coup

de grace: in order to improve her chances for

partnership, Thomas Beyer advised, Hopkins

should “walk more femininely, talk more fem-

ininely, dress more femininely, wear make-up,

have her hair styled, and wear jewelry.”

Id. at 235 (internal citations omitted). The Court observed

that “[i]t [took] no special training to discern sex stereotyp-

ing in a description of an aggressive female employee as re-

quiring ‘a course at charm school,’” nor “to know that, if an

employee’s flawed ‘interpersonal skills’ can be corrected by

a soft-hued suit or a new shade of lipstick, perhaps it is the

employee’s sex and not her interpersonal skills that has

drawn the criticism.” Id. at 256.

As Hopkins and our later cases make clear, it is an indi-

vidual’s failure to meet social preconceptions about what is

“male” or “female” that raises the inference of discrimina-

tion. There must be, therefore, some evidence of “preconcep-

tion.” In Hopkins, as already described, the Court relied on

overt references to male and female stereotypes. Gen-

der-neutral remarks also might reflect sex-stereotyping, but

there has to be some evidence that those gender-neutral

comments reflect preconceptions of how men and women

should conduct themselves. For instance, in Bellaver v.

Quanex, 200 F.3d 485 (7th Cir. 2000), a woman employee was

disciplined and eventually let go due to her lack of interper-

sonal skills. We observed that,

[w]hile it is permissible to evaluate an employ-

ee’s interpersonal skills when those skills are

relevant to the job, evaluations may demon-

strate discriminatory intent when employees

36 No. 18-3630

are evaluated on how their interpersonal skills

match stereotyped, unequal ideas of how men

and women should behave. …

As in Price Waterhouse, the evidence sug-

gests the employer here may have relied on

impermissible stereotypes of how women

should behave. Bellaver’s evaluations are

marred only by the repeated references to her

interpersonal skills, but these same types of de-

ficiencies seemed to be tolerated in male em-

ployees.

Id. at 492.

Here, there is no evidence to suggest that Polite’s assess-

ment of Ms. Joll’s personality was based on a preconceived

notion of how women should behave. Polite was Ms. Joll’s

direct supervisor at Thomas Jefferson Middle School. He had

firsthand knowledge of how Ms. Joll interacted with others

and, specifically, with a supervisor. He provided his assess-

ment in response to a direct question of how Ms. Joll might

handle being in the role of an assistant, as opposed to being

in charge of a sports program. Thus, his assessment, based

on his experience supervising Ms. Joll, spoke directly to a

quality that would bear on her ability to perform the job for

which she was being considered. Polite’s use of a linguisti-

cally accurate word to describe a job-related trait of Ms. Joll

does not constitute sex-stereotyping. Indeed, it is difficult to

conceive of how Polite might have voiced his legitimate con-

cerns without running afoul of the majority’s conception of

sex-stereotyping. The majority, it would seem, would find it

equally troubling if Polite had described Ms. Joll as used to

No. 18-3630 37

being in charge, accustomed to running a program her own

way, or not used to being in a subordinate position.

There also is no evidence in the record that this quality—

a need or desire to be “in charge”—was tolerated in the male

candidate for the job. My colleagues explain that “it’s easy to

think that a dominant personality is often viewed as a virtue

of at least male athletic coaches.” Maj. at 16. But there is no

evidence in the record that Coach Nellessen, Dr. Amones, or

Mr. Hofer believed this to be the case—especially with re-

spect to professional relationships with other members of

the coaching staff. Inferences based on speculation and con-

jecture cannot be used to defeat a summary judgment mo-

tion. See, e.g., Lavite v. Dunstan, 932 F.3d 1020, 1029 (7th Cir.

2019). Additionally, the record does not support (or even

suggest) that Arredondo, the successful candidate, had a

“dominant” personality. Indeed, it appears that the wealth

of his experience was as an assistant coach.3 Because he had

not spent significant time in charge of his own program,

there was no need to question whether he easily could step

into an “assistant” position.

At bottom, the comment from Polite is not the kind of

sex-stereotyping condemned in Price Waterhouse where an

employment decision was based on the plaintiff’s failure to

conform to the partners’ view of how a woman should act.

Instead, Polite’s reference spoke directly to whether Ms. Joll,

who had been a head coach for several years, could play a

successful supporting role in someone else’s program.

3 See supra note 1.

38 No. 18-3630

2.

Ms. Joll also asserts, and my colleagues accept, that the

checking of Ms. Joll’s references prior to a hiring decision

being made was a “deviation from standard procedures”

which “lends support to her claims.” Maj. at 15. Mr. Hofer

testified that, at the time VHS was hiring an assistant girls’

cross-country coach, there were no written procedures gov-

erning the process of hiring assistant coaches. As a matter of

practice, however, he would check all candidates’ references

just prior to presenting their candidacies to the board. See

R.29-4 at 14 (Hofer Dep. 36). But it was not Mr. Hofer who

contacted Polite about a reference for Ms. Joll. Instead,

Dr. Amones and Coach Nellessen had taken charge of the

hiring process for the assistant girls’ cross-country position

while Mr. Hofer was out of the office due to knee surgery.

Although “[s]ignificant, unexplained or systematic devia-

tions from established policies or practices can no doubt be

relative and probative circumstantial evidence of discrimina-

tory intent,” Hanners v. Trent, 674 F.3d 683, 694 (7th Cir.

2012), there is nothing inherently suspect about

Dr. Amones’s proceeding in a different manner than Mr. Ho-

fer. Moreover, there is no reason why Dr. Amones and

Coach Nellessen should not have contacted candidates’ ref-

erences if they believed it would inform their hiring deci-

sion. Finally, there is no evidence in the record that

Dr. Amones and Coach Nellessen only contacted Ms. Joll’s

references. Mr. Hofer testified that both candidates’ refer-

ences were available to Dr. Amones and Coach Nellessen,

and Mr. Hofer did not know whether Principal Amones or

Coach Nellessen contacted Arredondo’s references. R.29-4 at

15 (Hofer Dep. 37). There is no evidence on this record that

No. 18-3630 39

Dr. Amones and Coach Nellessen treated the candidates dif-

ferently with respect to checking references.

3.

Ms. Joll also contends that VCS offered shifting criteria

for why it did not hire her, and that offering different expla-

nations supports her claim of discrimination. “One can rea-

sonably infer pretext from an employer’s shifting or incon-

sistent explanations for the challenged employment deci-

sion.” See, e.g., Appelbaum v. Milwaukee Metro. Sewerage Dist.,

340 F.3d 573, 579 (7th Cir. 2003) (collecting cases). In Appel-

baum, for example, the employer had terminated the plain-

tiff’s employment and, initially, had told her that it was on

the basis of a breach of confidentiality and her poor perfor-

mance. Later, the employer “backed off” the performance

rationale, calling it just an “aggravating factor” in the deci-

sion to terminate her on the basis of the breach of confidenti-

ality. Id. At trial, however, the employer stated that her per-

formance played “zero role” in the decision to terminate her

employment. The employer’s shifting reason for the same

employment decision, the court held, raised an inference of

pretext. Id.

Here, Ms. Joll does not claim that the defendant’s ra-

tionale for not hiring her for the assistant girls’ cross-country

team shifted over time. Instead, she claims, and my col-

leagues accept, that VCS’s hiring criteria shifted from one po-

sition to another:

When Ms. Joll did not receive the Girls’

Cross Country assistant coach position, the

school stated it did not hire her because the

male candidate who worked at Portage High

40 No. 18-3630

School, which was 9.5 miles away, had more

recent high school coaching experience. How-

ever, in subsequently failing to hire Ms. Joll for

the Boys’ Cross Country assistant coach posi-

tion at Valparaiso High School, the School stat-

ed the male candidate hired worked in the

building, and that proximity was a most im-

portant factor in hiring its coaches.

Appellant’s Br. 35–36; see also Maj. at 17–18 (“The defend-

ant’s stated reasons for hiring for these nearly identical jobs

were inconsistent with each other.”).

However, as noted previously, see supra at 32, we must

consider each failure to hire as a discrete act. This approach

is particularly sensible in a case such as this one where there

were different decisionmakers and candidates for each posi-

tion. Indeed, Ms. Joll has not come forward with any author-

ity in which we have suggested that different explanations for

different employment decisions were suspect.

With respect to the girls’ cross-country position, the stat-

ed (and consistent) reason for hiring Arredondo was his

more recent experience coaching high school. In his affida-

vit, Mr. Hofer also explained that that there was concern

about Ms. Joll’s ability to step into the role of an assistant.

R.29-1 at 4 (Hofer Aff. 2). This supplemental rationale, how-

ever, does not raise the specter of pretext. See, e.g., Johnson v.

Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001) (“Nordstrom

simply supplemented its explanations in the context of

EEOC charges and litigation; there has been no retraction of

No. 18-3630 41

any of its reasons for failing to promote Johnson nor are any

of its reasons inconsistent or conflicting.”).4

4.

Finally, Ms. Joll maintains that her superior qualifications

raise an inference of discriminatory intent. We have ex-

plained that “evidence of the applicants’ competing qualifi-

cations 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 1169, 1180 (7th Cir.

2002) (internal quotation marks omitted).

Here, Ms. Joll has a wealth of experience coaching track

and cross country at multiple levels. Her most recent experi-

ence was as the head coach of Thomas Jefferson Middle

School, where she served from 2005 to 2013. In making the

determination that Arredondo was the better choice for the

girls’ cross-country assistant coaching position, Coach Nel-

lessen, Dr. Amones, and Mr. Hofer relied upon his recent

experience coaching cross country at the high school level

4 Even if it were appropriate to evaluate rationales across positions,

however, VCS’s rationales were not inconsistent. With respect to the

girls’ position, VCS had to choose between two individuals who did not

teach at VHS. As between those two individuals, the high school chose

the individual with the most recent high school coaching experience.

With respect to the boys’ position, VCS had to choose between an indi-

vidual who was a teacher at VHS, and therefore had daily contact with

the athletes he would coach, and an individual who was not a teacher at

VHS. As between those two individuals, VCS chose the individual in the

building.

42 No. 18-3630

and the fact that, unlike Ms. Joll who had served as a head

coach, it would not be difficult for him to serve in an assis-

tant position. These two criteria are directly related to the

position for which Ms. Joll applied. With regard to the spe-

cific positions at issue, therefore, Ms. Joll was not clearly bet-

ter qualified such that the disparity in qualifications would

raise an inference of pretext or discrimination.

The majority notes that “the Millbrook rule applies only

where ‘the plaintiff relies exclusively on evidence of the ap-

plicants’ comparative qualifications.” Maj. at 21 (quoting

David v. Caterpillar, Inc., 324 F.3d 851, 863 (7th Cir. 2003)).

The majority believes that Ms. “Joll has presented much

more evidence.” Id. However, as explained at length, I do

not believe there is evidence in this record to support the

other inferences of discrimination that Ms. Joll asks us to

draw.

At bottom, based on the evidence presented by Ms. Joll, a

reasonable jury could not conclude that the decision to hire

Arredondo as the assistant girls’ cross-country coach was

based on her gender. I would therefore affirm the district

court’s grant of summary judgment to VCS on this claim.

B. Boys’ cross-country position

Ms. Joll also contends that she suffered discrimination

when she was not hired for the assistant boys’ cross-country

position. She relies on many of the same arguments made

with respect to the girls’ cross-country position: that the de-

cision was affected by the use of sex-stereotypes, that differ-

ent procedures were followed with respect to checking ref-

erences, that there were shifting criteria for hiring, and that

No. 18-3630 43

she was better qualified. Thus, I address only the evidence

unique to the boys’ cross-country position.

Ms. Joll complains that different procedures were used to

check Kerezman’s references from those used to check hers.

Mr. Hofer explained that Kerezman’s references were not

checked because “he was a teacher at the high school,” he

had coached with the cross-country team on a voluntary ba-

sis and had been “a paid assistant for our track [program],”

and Mr. Hofer “personally kn[e]w him as a coach.” R.29-4 at

17 (Hofer Dep. 49). Kerezman was a known quantity to

Mr. Hofer. It indeed would be placing form over substance

to require Mr. Hofer to go through the motions of checking

the references of someone whom he knew personally and

supervised professionally.

Ms. Joll also complains about shifting criteria for the

boys’ cross-country position. However, VCS consistently has

stated its primary reason for the hiring of Kerezman was

that he had better rapport with the boys on the team due to

his being a teacher in the building, having volunteered with

the program, and having been an assistant for the boys’ track

team. His presence in the building allowed him to build and

maintain this rapport in a way that a coach from outside the

building—whether male or female—could not.5

5 As noted previously, see supra at 32, Ms. Joll and the majority want to

evaluate whether the criteria shifts across positions and before different

decision-making teams. The majority therefore faults VHS for focusing

on recent high school experience with respect to Arredondo, but on be-

ing “‘in the building’ during the school day with the opportunity to

build ‘rapport with the boys’” with respect to Kerezman. Maj. at 18. Ac-

cording to the majority, these shifts worked to Ms. Joll’s disadvantage:

(continued … )

44 No. 18-3630

Finally, Ms. Joll compares her experience to Kerezman’s

and concludes that she clearly is the better qualified candi-

date. Again, however, the position for which Ms. Joll applied

was an assistant boys’ cross-country position at VHS. Alt-

hough she had a longer career coaching than Kerezman, she

was not a teacher at VHS; Kerezman was. Kerezman had

regular contact with the students and an opportunity to

build on this relationship in ways that Ms. Joll could not. It is

difficult to argue that this consideration is not a legitimate

one. Many, including Ms. Joll, might believe that Coach Cra-

gue and Mr. Hofer should have placed more emphasis on

experience than presence. However, “[a]n unwise employ-

ment decision does not automatically rise to the level of pre-

( … continued)

“Joll’s long presence in the middle school and in the school system with

the opportunity to build ‘rapport with the girls’ was not considered in

her favor vis-à-vis Arredondo. Her more extensive and apparently more

recent professional experience coaching high schoolers was not consid-

ered vis-à-vis Kerezman.” Id.

As a preliminary matter, Ms. Joll did not have “more recent profes-

sional experience coaching high schoolers.” Kerezman recently had

served as an assistant coach for the VHS boys’ track team. See R.29-1 at 5

(Hofer Aff. at 3) (“Kerezman had also recently coached boys track as a

varsity assistant at Valparaiso which we felt was a plus.”); R.29-4 at 16

(Hofer Dep. 44) (explaining that Kerezman had been “a paid coach for

our track [program]”). However, even if this had not been the case, the

fact that Coach Nellessen, Dr. Amones, and Mr. Hofer applied different

criteria than Coach Crague and Mr. Hofer when faced with two different

sets of candidates does not suggest discriminatory intent. It is entirely

possible that, if presented with a qualified, in-building candidate,

Coach Nellessen, Dr. Amones, and Mr. Hofer would have chosen that

candidate over either Ms. Joll or Arredondo. This option, however, was

not available to them.

No. 18-3630 45

text.” Teruggi v. CIT Grp./Capital Fin., Inc., 709 F.3d 654, 661

(7th Cir. 2013). Here, the record does not support an infer-

ence that Kerezman’s status as a teacher was not the true

reason that he was hired, nor does it support an inference

that Ms. Joll was not hired because she was a woman. Con-

sequently, I would affirm the district court’s summary

judgment for VHS on this claim as well.

I close with a final observation concerning the effect of

our Ortiz decision on summary judgment decisions. We held

in Ortiz that, for purposes of summary judgment, we could

not cabin different types of evidence into categories and con-

sider those categories in isolation. We explained that the ap-

propriate legal standard

is simply whether the evidence would permit a

reasonable factfinder to conclude that the

plaintiff’s race, ethnicity, sex, religion, or other

proscribed factor caused the discharge or other

adverse employment action. Evidence must be

considered as a whole, rather than asking

whether any particular piece of evidence

proves the case by itself—or whether just the

“direct” evidence does so, or the “indirect” ev-

idence. Evidence is evidence.

Ortiz, 834 F.3d at 765. However, we also were clear that

“[r]elevant evidence must be considered and irrelevant evi-

dence disregarded.” Id. Ortiz did not cast aside our well-

honed rules for determining when particular types of evi-

dence (the use of different procedures, shifting rationales,

etc.) are relevant and probative of discrimination. Today’s

decision demonstrates graphically how this principle can be

46 No. 18-3630

disregarded when the Ortiz approach is employed to evalu-

ate a summary judgment motion.

Here, the question is whether Ms. Joll came forth with

sufficient relevant and probative evidence from which a rea-

sonable jury could conclude that VCS failed to hire her for

the girls’ assistant cross-country position or for the boys’ as-

sistant cross-country position because she was a woman. For

the reasons set forth above, I do not believe Ms. Joll has met

her burden with respect to either position, and I therefore

would affirm the judgment of the district court.