The Seventh Circuit reiterates that the task of the district court deciding a motion for summary judgment in a Title VII case is not to "ask whether any particular piece of evidence proves the case by itself," but instead to aggregate the evidence "to find an overall likelihood of discrimination." The panel notes here that hiring procedures may have been twisted to favor male applicants for coaching jobs over the plaintiff.
Joll v. Valparaiso Cmty. Sch., No. 18-3630 (7th Cir. Mar. 23, 2020): The Seventh Circuit in 2016 issued a foundational decision for Title VII and other employment-discrimination cases, Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 763 (7th Cir. 2016). The court disaffirmed decades of case law that favored the proof of either a "convincing mosaic" or "direct" method of proof, or else by the use of the "indirect" method prescribed by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The court held that instead of deciding whether a particular category of evidence is "direct" or "indirect," the court held that "[e]vidence 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' evidence. Evidence is evidence."
This case presents a direct application of the Ortiz principles. Plaintiff - a highly-experienced woman track coach - sought reemployment with the defendant school as a girls' assistant track coach after taking a leave period for family reasons. The other candidate was a man (Arredondo) who, coincidentally, also took family leave around the same time.
At her interview, instead of being asked about her credentials, "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 emphatic that they would." As for her male counterpart, with the same interviewers, he "was not asked about his family life. He was asked instead about his 'coaching experience, what my coaching philosophy is, a lot of shop talk.' In other words, the three men 'talked shop.'"
The school also deviated from its usual practice of "check[ing] an applicant's references only after the decision had been made to recommend his hiring to the school board." It checked with three references only for Joll, none for Arredondo. The principal Amones specifically forwarded the one, relatively unfavorable reference for Joll to athletic director Hofer, which referred to Joll as having "a dominate [sic] personality."
The school wound up hiring Arredondo, citing his supposedly "more current experience working with high school age athletes." Curiously, though, when Joll went through a similar hiring process for another vacancy, the school again favored the male candidate (Kerezman) ... for the entirely new reason of having "better rapport with the boys." The court noted that "[t]here is also no evidence and no explanation why 'rapport with the girls' did not assume similar importance in hiring the assistant for the girls' team," which "would have been bad for Arredondo and good for Joll." The school later asserted a different reason for the second hiring decision, i.e., that the male candidate was already a teacher in the school.
While the district court granted summary judgment on her Title VII sex discrimination and ADEA age discrimination claims, the Seventh Circuit reverses in a 2-1 decision. The court's opinion reminds the reader at the outset of the analysis that we trust juries to make common-sense judgment calls. "[T]rials are stories, not syllogisms," and "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."
Here, the panel majority considers the Title VII sex discrimination claim - if the jury credits the evidence in Joll's favor - to be persuasive. Though finding that Joll forfeited a "motivating factor" argument on her sex discrimination claim, the panel majority concludes that it still passes muster under the conventional bur-for standard of causation, i.e., whether 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.'"
It holds that 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." It cites the following factors:
1. "Joll had trouble simply securing an initial interview for the girls' job, suggesting a baseline reluctance to entertain her candidacy. After the interview, her references were contacted sooner than was ordinary (with important consequences 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."
2. While Joll was quizzed about her family commitments, "Arredondo's commitment was not questioned. He 'talked shop,' not kids, with the interviewers." This conformed to a stereotype of women as caregivers.
3. "The decision-makers discounted the two long and positive" references for Joll "in favor of middle school principal['s] ... isolated comment that Joll has a 'dominate personality.'" Also, "a jury could draw on its experience to conclude that the same behavior may be labeled 'assertive' in a man and 'aggressive' in a woman."
4. "A jury could infer further that the signal [from the unfavorable reference] was received immediately by principal Amones and athletic director Hofer ('The 3rd one I got.') and operated so powerfully that it overrode" the two highly-positive reviews.
5. "[T]he stated reasons and criteria favored the male applicant" in each instance, and "[f]rom the shifting criteria that favored the male applicants, a jury could infer that the different stated reasons were not honest and were pretexts for sex discrimination."
6. One decisionmaker, Hofer, testified inconsistently about his involvement in the decisions.
7. The plaintiff presented generally superior experience and credentials.
The panel majority also notes that "the district court also erred to the extent it dismissed Joll's evidence of sex-role stereotyping as mere 'stray remarks' that were not probative of unlawful intent in the hiring decision," because here the remarks bore directly on the decision-making process itself.
The panel does, however, affirm summary judgment on an age discrimination claim based on plaintiff's waiver of the correct causation framework in the district court.
Dissenting, Judge Ripple would have held that the record, taken as a whole, does not support an inference of sex discrimination. The dissent cautions that "Ortiz did not cast aside our well-honed rules for determining when particular types of evidence (the use of different procedures, shifting rationales, etc.) are relevant and probative of discrimination. Today's decision demonstrates graphically how this principle can be disregarded when the Ortiz approach is employed to evaluate a summary judgment motion."