John S. Gore v. Indiana University

416 F.3d 590, 2005 U.S. App. LEXIS 15146, 86 Empl. Prac. Dec. (CCH) 42,021, 96 Fair Empl. Prac. Cas. (BNA) 169, 2005 WL 1713419
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 25, 2005
Docket04-2439
StatusPublished
Cited by43 cases

This text of 416 F.3d 590 (John S. Gore v. Indiana University) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John S. Gore v. Indiana University, 416 F.3d 590, 2005 U.S. App. LEXIS 15146, 86 Empl. Prac. Dec. (CCH) 42,021, 96 Fair Empl. Prac. Cas. (BNA) 169, 2005 WL 1713419 (7th Cir. 2005).

Opinion

*591 WOOD, Circuit Judge.

When there are three job openings and a man fills the first position, it is an uphill battle for another man to prove that his gender is the reason why he was not selected. That is the task that John Gore faces in this case. Although Gore is convinced that only invidious reasons could explain Indiana University’s refusal to hire him as a lecturer, he needs more than his own conviction. The district court granted summary judgment for the University on Gore’s claim of gender bias, and we agree that he did not demonstrate any genuine issue of material fact that would require a trial. We therefore affirm.

I

Gore began teaching entry-level communications courses at the South Bend campus of Indiana University in 1998.' In September 2001, the University’s Communication Arts Area posted openings for communications lecturers. Gore, who had been working under a series of one-year contracts as an adjunct lecturer, applied for one of these positions, seeking, essentially, to keep his current job. In keeping with its standard policy, the University created a committee to review incoming applications. The committee consisted of three men and two women. After reviewing the candidates, the committee submitted to the University’s Affirmative Action Officer (AAO) a list of six potential interviewees. The list included four external candidates and two internal candidates, one of whom was Gore. In the letter to the AAO, the committee noted that it might need the internal candidates to remain as “visiting” lecturers if more positions became available. “If they [were not] interviewed,” the Committee wrote, “it could be an awkward situation.”

The AAO rejected this reason for including the internal candidates on the list. Her reply to the committee stated: ‘We are looking for the best candidates for one position- — -the Communication Arts Lecturer position. The fact that someone works at [the University] is not a valid reason for wanting to include that person in the pool.... We ask that you propose a list of the most qualified candidates [based] upon objective job related criteria.” With this new directive, the committee submitted three candidates to the AAO, a man and two women. Gore was not on the list. After the AAO approved this new set of candidates, the committee interviewed all three and selected Alee Hosterman. Host- erman, the only man interviewed, also happened to be the other internal candidate from the committee’s original interview list.

When a second lecturer position became available a few months later, the committee returned to the broader pool of candidates and selected Desrene Vernon. The hiring committee chair explained in her deposition that the committee selected Vernon over Gore because Vernon had a master’s degree in communications, the subject she would be teaching. Gore had a master’s degree, but his was in education leadership, not communications. The committee offered the same rationale for hiring another woman instead of Gore when a third position became available; she had a master’s degree in communications, Gore did not.

Gore was upset that he had not been interviewed for any of the three positions. After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, he sued the University, alleging age and gender discrimination. The district court dismissed Gore’s age discrimination claim on sovereign immunity grounds. Gore does not appeal this ruling and rightly so. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 78, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (finding that the *592 Age Discrimination in Employment Act was not appropriate legislation to enforce section five of the Fourteenth Amendment and therefore did not abrogate the states’ sovereign-immunity).

The University moved for summary judgment on Gore’s remaining sex discrimination claim at the close of discovery. The district court granted the motion, precipitating this appeal.

II

Title VII of the Civil Rights Act of 1964 provides that it “shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1). To prevail on his sex discrimination claim, Gore must either show direct evidence of discriminatory motive or intent, or rely on the indirect burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Gore relies solely on the latter option. Under this approach, a plaintiff must present evidence tending to show: (1) he is a member of a protected class; (2) he applied for, and was qualified for, an, open position; (3) the employer rejected him for the position; and (4) the employer filled the position with an individual outside of the plaintiffs protected class, or the position remained vacant. See, e.g., Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.2002). If the plaintiff can establish these four elements, the defendant has an opportunity to articulate a legitimate, nondiscriminatory reason for its action. If the defendant does so, the burden shifts back to the plaintiff and he must offer evidence showing that the defendant’s excuse is pretextual. Id. at 694-95.

The district court saw no need to engage in this back-and-forth process, because Gore failed at the very first step of the analysis. Even though Title VII’s prohibitions against sex discrimination generally protect men as well as women, see, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (men); Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (women), the district court thought that Gore, in the circumstances of this case, was not a member of a class of employees protected by Title VII. We would put the point a little differently: the conventional McDonnell Douglas framework is not very helpful for so-called reverse-discrimination cases. Because it “is the unusual employer who discriminates against majority employees,” Mills v. Health Care Serv. Corp., 171 F.3d 450, 456-57 (7th Cir.1999), a male plaintiff alleging gender discrimination must show something more than the fact that he is gendered. See, e.g., Katerinos v. U.S. Dep’t of Treasury, 368 F.3d 733, 736 (7th Cir.2004). This was what we meant in Phelan v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
416 F.3d 590, 2005 U.S. App. LEXIS 15146, 86 Empl. Prac. Dec. (CCH) 42,021, 96 Fair Empl. Prac. Cas. (BNA) 169, 2005 WL 1713419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-s-gore-v-indiana-university-ca7-2005.