In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1757
JUDY R. N ORMAN-N UNNERY,
Plaintiff-Appellant,
v.
M ADISON A REA T ECHNICAL
C OLLEGE, C AROL B ASSETT,
W ILLIAM STRYKER and
JACKIE T HOMAS,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-C-0320-C—Barbara B. Crabb, Judge.
A RGUED S EPTEMBER 22, 2009—D ECIDED N OVEMBER 8, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Judy Norman-Nunnery applied
for a job at Madison Area Technical College (“MATC”) in
2005. When she did not receive an interview, much less
a job, she sued MATC and three employees involved in
2 No. 09-1757
the hiring process. She alleged that they discriminated
against her because of her race and retaliated against her
because of her marriage to Willie Nunnery, a lawyer
who had previously been involved in filing a frivolous
lawsuit against these same defendants. The district
court granted summary judgment in favor of the defen-
dants, and we affirm.
I.
Norman-Nunnery is an African-American woman
who holds a doctorate in education from the University
of Wisconsin-Madison. She has held a number of man-
agement positions in education and in state govern-
ment, including as vocational education coordinator for
the Milwaukee Public Schools, administrator for the
Department of Health and Human Services, and adminis-
trator for the Workers’ Compensation Division and the
Division of Vocational Rehabilitation in the State’s De-
partment of Workforce Development. She is married to
Willie Nunnery, a lawyer. In 2000, Mr. Nunnery repre-
sented Elvira Jimenez in a race discrimination suit
against MATC, Carol Bassett, Jackie Thomas and
William Stryker, who are all defendants in this case as
well. The Jimenez case ended as badly as a case can end
for a lawyer and his client. The court dismissed the
Jimenez suit as frivolous and found that certain docu-
ments produced by Jimenez had been fraudulently
created. Ultimately, Mr. Nunnery was sanctioned and
his law license was suspended for a period of time as a
result of his actions in the Jimenez case. Stryker, Thomas
No. 09-1757 3
and Bassett all were questioned at the sanctions hearing.
Stryker and Bassett both testified regarding the harm
they suffered as the result of being falsely accused of
engaging in racial discrimination.
In 2002, Norman-Nunnery applied for a position with
MATC as the Executive Dean of Learning. Thomas nomi-
nated four internal candidates for the position. Nothing
in the record suggests that Thomas had any other in-
volvement in the hiring process for the Executive Dean
position. Although Norman-Nunnery passed the initial
screening process for applicants, she was not inter-
viewed for the job. As part of the hiring process, MATC
compiled a list of information about the candidates that
specified, among other things, their race. The list for the
dean position identified Norman-Nunnery as “black.”
There is no evidence in the record that any of the indi-
vidual defendants here ever saw that list.
In 2005, Norman-Nunnery applied again for a position
at MATC, this time for the position of Disability
Resource Services Administrator (hereafter “DRS Ad-
ministrator”). Norman-Nunnery learned of the position
from Bob Wynn, a minority recruiter for MATC who
contacted her because he thought she would be a good
candidate for the job. With Wynn’s encouragement,
Norman-Nunnery called Eugene Fujimoto, MATC’s
Diversity Coordinator/Affirmative Action Officer, to
discuss the job further. Fujimoto was responsible for
monitoring MATC’s hiring process for fairness. He told
Norman-Nunnery that her administrative experience
would be helpful for this particular position. After dis-
4 No. 09-1757
cussing the job with Wynn and Fujimoto, Norman-Nun-
nery applied.
Seventy-six other persons also applied for the DRS
Administrator position. Bassett, an administrator in
the human resources department, conducted an initial
screening of the applicants to weed out those who
did not meet the minimum qualifications. The job posting
specified that a minimally qualified applicant would
have a master’s degree and at least 4000 hours of ad-
ministrative experience. The job description set forth
the basics of the position:
Direct the daily operation, activities and staff of
Disability Resource Services across the MATC district.
Plan, develop, implement, monitor and assess pro-
grams and services meeting the requirements of
Section 504 of the Rehabilitation Act of 1973 and the
Americans with Disabilities Act for eligible students
with disabilities. Promote and support the suc-
cess of students with disabilities emphasizing the
development of the whole person with the student’s
learning experience.
The initial screening reduced the applicant pool to 46
candidates. Bassett found that Norman-Nunnery met
the standards for a minimally qualified applicant and
Norman-Nunnery advanced to the next stage of the
hiring process.
In order to select the ten most qualified candidates from
the pool of forty-six to proceed to the interview phase,
MATC used a selection committee consisting of Kevin
No. 09-1757 5
Carini, Beth Bremer, Marilyn Fayram, Carol Higgans 1 and
Jacquelyn Thomas. Thomas is a defendant in this case,
and of course had been a defendant in the Jimenez suit
filed by Norman-Nunnery’s husband many years earlier.
Thomas served as chair of the selection committee and
was to be the direct supervisor of the DRS Administrator.
Kristine Gebhardt, a MATC Human Resources Admin-
istrator, led a training session with the newly-formed
committee to establish “depth and breadth” screening
criteria for the DRS Administrator position. The com-
mittee developed a list of five criteria by which to assess
the candidates and assigned a maximum number of
points to each: (1) experience with higher education
(two points); (2) experience with adult persons with
disabilities (three points); (3) knowledge of current and
emergent technologies for persons with disabilities
(1 point); (4) supervisory experience (two points); and
(5) experience with providing reasonable accommoda-
tions in an educational setting (three points).
After the depth-and-breadth criteria were established,
each committee member independently scored each of
1
There appears to be some disagreement in the record over
when Higgans joined the committee. According to the defen-
dants, Stryker originally filled the role of EEO representative
on the committee and he was present for the initial training
session at which the depth-and-breadth criteria were deter-
mined. Higgans took his place on the committee after
receiving training on the criteria, prior to scoring any of the
candidates. The plaintiff does not allege that Stryker took any
wrongful actions during his brief time on the committee and
so the dispute is immaterial to the issues presented.
6 No. 09-1757
the forty-six candidates who had been found minimally
qualified. The committee then met to discuss each candi-
date and the rationale for their scores until they reached
a consensus on a score for each applicant. Thomas
recorded the consensus score for each applicant on her
copy of the screening form. The committee selected the
top ten scoring applicants for interviews and Norman-
Nunnery did not make the cut. Because the college set
certain equal employment opportunity goals, three or
more minority candidates were required to be in the
interview pool. After selecting the original ten candidates,
Higgans then retrieved the “affirmative action sheet”
that identified the race of each applicant. On comparing
that sheet to the list of ten potential interviewees,
the committee learned that the list of ten candidates
included only one minority applicant, an African-
American woman. The committee then added to the
interview pool the next two highest scoring minority
applicants, an Asian man and a Hispanic woman. Two
of the ten original interviewees removed themselves
from consideration and the remaining candidates were
interviewed. After the first round of interviews, the pool
was reduced to three candidates. None of the minority
candidates advanced to the second round of interviews.
At that point, Fujimoto became concerned that no
minority candidates were advancing to the next round.
He approached Stryker, the vice president of human
resources, and Higgans to express his concerns. He
asked why Norman-Nunnery had not been given an
interview. Higgans told him that Norman-Nunnery
had scored lower than the interviewed applicants in the
No. 09-1757 7
depth-and-breadth categories for higher education and
experience with persons with disabilities. Stryker then
arranged a second meeting to address Fujimoto’s con-
cerns. Present at the meeting were Stryker, Thomas and
Bassett (the individual defendants here) as well as
Higgans and Fujimoto. Fujimoto told the group
that Norman-Nunnery had been specifically recruited
for the job, had a high level of administrative experi-
ence and also had an excellent background. He felt that
her level of relevant experience was not reflected in
her application and asked the group to make certain
assumptions about her experience from her résumé,
asserting that they would learn during the interview
process specific qualifications that she possessed that
were not apparent on her paperwork. He also ques-
tioned the validity of the depth-and-breadth criteria.
Higgans responded to these concerns by reiterating
that Norman-Nunnery had scored lower than the other
applicants in two areas of the depth-and-breadth crite-
ria. When Stryker asked if anyone believed that discrim-
ination had played a part in the interview selection pro-
cess, no one said it had. Stryker decided not to add
Norman-Nunnery to the interview list, a decision in
which Bassett and Higgans concurred. Fujimoto then
sent a letter to Norman-Nunnery, explaining that she
had not been selected for an interview because other
candidates scored higher than she did in certain cate-
gories, including higher education experience and
direct experience with persons with disabilities.
After the second round of interviews, MATC hired
Sandra Hall, a white woman, for the DRS Administrator
8 No. 09-1757
position. Hall, who had previously worked for Norman-
Nunnery at the Division of Worker’s Compensation, had
thirty years of experience in the disability field, a
master’s degree in Rehabilitation Counseling, three
years of administrative experience at the University of
Wisconsin-Whitewater supervising disability services,
five years of experience working as a Rehabilitation
Counselor for adults with developmental disabilities or
mental illness, and a good working knowledge of assistive
technologies, particularly in the setting of students in
higher education.
Before Norman-Nunnery applied for the DRS Adminis-
trator position, Bassett and Stryker did not know any
“Nunnerys” in Madison, Wisconsin other than Willie
Nunnery. Bassett conducted the initial screening of
the applicants and so she was aware that there was a
candidate who shared, in part, the same last name as
the lawyer who had filed a frivolous suit against her. At
some point, possibly during the meeting with Fujimoto
to discuss Norman-Nunnery’s application, Bassett
became aware that Norman-Nunnery is married to Willie
Nunnery. She discussed this realization with Thomas
and Stryker, although the record does not establish a
definitive time frame for these discussions. All of the
defendants were aware that Willie Nunnery is African-
American. There is no other evidence in the record
that anyone knew that Norman-Nunnery is African-
American until Higgans retrieved the EEO sheet that
listed the race of the applicants.
Fujimoto, as the college’s Diversity Coordinator
and Affirmative Action Officer, was responsible for
No. 09-1757 9
reporting on MATC’s affirmative action hiring and re-
tention efforts. In his research for the report, Fujimoto
determined that, for the ten-year period between 1995
and 2005, six to seven percent of the administrators at
the college were persons of color. This represented a
decrease from the prior ten-year period. After con-
ducting a “non-experimental study,” Fujimoto concluded
that race affected the college’s hiring decisions on a
structural level because the depth-and-breadth system
favored insiders.2 In the area of faculty hiring, for
example, 65% of full-time positions were filled from the
pool of part-time staff. This had a disparate impact on
minority candidates because 95% of the part-time
faculty was white.
After she was not offered an interview for the DRS
Administrator position, Norman-Nunnery filed a charge
of race discrimination in the Equal Rights Division of
the Wisconsin Department of Workforce Development
(hereafter “ERD”). After filing her claim, MATC dis-
covered that certain documents pertaining to the hiring
process for the DRS Administrator position were
2
Norman-Nunnery characterizes Fujimoto’s study as “non-
experimental.” The record does not tell us what this term
means to the parties. We take it to mean that Fujimoto’s
study was conducted without the use of controls and was
instead based on observation of past events. Such a study
typically can establish a correlation between two factors but
not necessarily a cause-and-effect relationship. The analysis
of the claim is the same regardless of how the study was
conducted.
10 No. 09-1757
missing. Twenty-five of the original seventy-seven ap-
plications had been lost, including Norman-Nunnery’s.
Thomas’ screening form, which included the consensus-
based depth-and-breadth scores for the minimally quali-
fied candidates was also lost. The depth-and-breadth
scoring forms of the other four committee members
were found and produced, as was Bassett’s screening
form for minimal qualifications.
Ultimately, Norman-Nunnery filed suit in federal court
against MATC, Bassett, Stryker and Thomas. She
alleged that the defendants violated Title VII and the
Fourteenth Amendment when they precluded her
from entering into an employment contract because of
her race or because of her association with her husband,
that they violated 42 U.S.C. § 1981 and the Fourteenth
Amendment by discriminating against her in the terms
and conditions of pursuing the DRS Administrator job,
and that they violated her rights under the First and
Fourteenth Amendments by retaliating against her
because of her marital association with Willie Nunnery.
The district court granted summary judgment in favor
of the defendants because Norman-Nunnery offered no
evidence from which a rational jury could conclude
that race or marital status motivated the defendants’
decision not to hire her. She appeals.
II.
On appeal, Norman-Nunnery argues that she is
entitled to an inference under the spoliation doctrine
that the missing documents would have favored her
No. 09-1757 11
claims of race discrimination and marital association
retaliation. She contends that she produced adequate
evidence that the defendants knew her race from the
beginning of the hiring process, that they were
motivated by race and dislike for her husband in
deciding not to interview or hire her, and that the record
is replete with evidence that the defendants’ stated
reasons for not hiring her were pretextual. Our review
of the district court’s grant of summary judgment is
de novo. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.
2009); George v. Walker, 535 F.3d 535, 538 (7th Cir. 2008).
A.
The first issue is whether Norman-Nunnery is entitled
to an inference that the missing documents would
support her claims for discrimination and marital associa-
tion retaliation. “An employer’s destruction of or
inability to produce a document, standing alone, does not
warrant an inference that the document, if produced,
would have contained information adverse to the em-
ployer’s case.” Park v. City of Chicago, 297 F.3d 606, 615
(7th Cir. 2002). In order to draw an inference that the
missing documents contained information adverse to
the defendants, Norman-Nunnery must demonstrate
that the defendants intentionally destroyed the docu-
ments in bad faith. Faas v. Sears, Roebuck & Co., 532 F.3d
633, 644 (7th Cir. 2008); Park, 297 F.3d at 615. The
crucial element in a spoliation claim is not the fact that
the documents were destroyed but that they were de-
stroyed for the purpose of hiding adverse information.
12 No. 09-1757
Faas, 532 F.3d at 644; Trask-Morton v. Motel 6 Operating L.P.,
534 F.3d 672, 681 (7th Cir. 2008). Some courts have found
a spoliation sanction to be appropriate only where a
party has a duty to preserve evidence because it
knew, or should have known, that litigation was im-
minent. Trask-Morton, 534 F.3d at 681. See also Park, 297
F.3d at 615 (a violation of a record retention policy
creates a rebuttable presumption that the missing record
contained evidence adverse to the violator).
Norman-Nunnery fails on every element of the test for
the spoliation inference. First, the documents disap-
peared before Norman-Nunnery filed any claim against
MATC and the individual defendants. Thus, the docu-
ments were lost before MATC knew or should have
known that litigation was imminent. Second, Norman-
Nunnery has offered no evidence that the defendants
lost or destroyed the documents for the purpose of
hiding adverse information. Between the time Norman-
Nunnery applied for the job and the filing of her claim
of discrimination, MATC moved its human resources
department twice due to office remodeling. Each time,
all of the records in the office were boxed up and
moved. At the time Norman-Nunnery applied for the
DRS Administrator position, MATC still used paper
applications. MATC’s paper filing system left something
to be desired. The stack of papers awaiting filing in
the human resources office sometimes reached three feet
in height. No single individual was responsible for
filing; various human resources employees filed applica-
tions and other paperwork, including student employ-
ees. After the moves, MATC was unable to locate twenty-
No. 09-1757 13
five of the original seventy-seven applications, in-
cluding Norman-Nunnery’s. Although Thomas’s depth-
and-breadth screening form, which contained the con-
sensus scores, was missing, the scoring forms of the
other four committee members were located and
produced, along with Bassett’s screening for minimal
qualifications. MATC also located and produced the
written applications of fifty-two candidates, including
the application submitted by Hall, the person hired for
the job. It is unclear from the record whether Norman-
Nunnery kept a copy of the application she submitted,
but the last person at MATC who could account for the
whereabouts of Norman-Nunnery’s application was
Fujimoto. He had Norman-Nunnery’s application with
him when he met with Stryker, Bassett and Thomas. At
the end of that June 2005 meeting, he returned Norman-
Nunnery’s application to the human resources depart-
ment. Between June 2005 and December 2005, the
human resources files were boxed up and moved twice.
Norman-Nunnery filed her claim against MATC and
the individual defendants in April 2006.
As evidence of the defendants’ bad faith, Norman-
Nunnery points out that two witnesses could not recall
hiring documents being lost prior to this occasion. She
also asserts that MATC constantly shifted its story
about what happened to the missing documents, first
claiming that Fujimoto had them, then simply claiming
that her application was missing, then claiming to have
lost the documents in an office move and then claiming
to have lost the documents in two office moves. That
documents had not been lost before implies nothing in
14 No. 09-1757
and of itself. And MATC never changed its explanation
but simply supplied more information over time. For
example, MATC never stated that Fujimoto had the
missing documents. Rather, a lawyer for MATC stated
in a letter:
The complainant’s application materials were with
Eugene Fujimoto when he investigated her concerns.
Mr. Fujimoto has left the College and her material
is not available.
R. 42, Ex. S, at 2. Although one reading of the letter implies
that Fujimoto took the papers with him when he left the
College, each part of the statement is literally true.
Fujimoto was the last person known to have the papers.
Although he stated that he returned them to the human
resources department, no one has been able to find them
since that time. Thus, Norman-Nunnery’s material is
not available. Stating simply that the documents
were missing is also true and implies nothing. Because
Norman-Nunnery did not file her claims until after the
documents had been moved twice in the office
remodeling project, and because no one had any reason
to look for the documents between the two moves,
it is not surprising that the defendants are not able to
pinpoint when the documents were lost. In light of the
undisputed circumstances of the office moves, there is
nothing suspicious about the defendants’ inability to
say when or how the documents disappeared. Norman-
Nunnery’s conclusory statements to the contrary, there
is simply no evidence supporting a bad faith motive on
the part of the defendants in the disappearance of the
documents.
No. 09-1757 15
Moreover, although the consensus scoring sheet was not
found, the scoring sheets of four of the five committee
members were located. These documents supplied a
good part of the information used in reaching the con-
sensus scores. If the scoring sheets of four out of five
committee members do not support Norman-Nunnery’s
claims, it is highly unlikely that the missing fifth docu-
ment contains information adverse to the defendants.
Presumably Norman-Nunnery knew what was on her
own application and Fujimoto also could have testified
about the contents of her application as he was the
last person in possession of it. Norman-Nunnery has
presented no evidence suggesting an intent on the part
of the defendants to hide adverse information. Because
there is no evidence that any of the defendants destroyed
the documents in bad faith, Norman-Nunnery is not
entitled to a favorable inference under the spoliation
doctrine.
B.
The district court found that Norman-Nunnery’s
claims for race and marital association discrimination
failed at the outset because she produced no evidence
that any of the relevant decision-makers knew her race
or marital status at the time she was eliminated from
the pool of candidates to be interviewed. The court
also found that Norman-Nunnery failed to demonstrate
that the defendants’ stated non-discriminatory reason
for not hiring her—that she scored lower than the
other candidates in the depth-and-breadth criteria—was
16 No. 09-1757
a pretext. We think the question of whether the
defendants knew Norman-Nunnery’s race or marital
association is a closer call than the district court’s opinion
reflects. For example, Bassett admits she drew a connec-
tion between Willie Nunnery and Norman-Nunnery at
some point and discussed this connection with the other
defendants, although the record does not tell us when
she made the connection or when she discussed it with
the other defendants. Thomas chaired the depth-and-
breadth committee and was to be the direct supervisor
of the new DRS Administrator. Bassett, Thomas and
Stryker had all been sued by Willie Nunnery in the
Jimenez case. A person is unlikely to quickly forget
being falsely sued for racial discrimination, and any
mention of Nunnery’s fairly unusual name would
probably have attracted the attention of these three de-
fendants. On summary judgment, when we must
construe the facts in favor of Norman-Nunnery, we are
reluctant to find that there is no genuine issue
regarding whether and when the defendants were
aware of her race and marital association. A reasonable
fact-finder could infer from these highly unusual facts
that the defendants knew Norman-Nunnery is African-
American and that she is married to Willie Nunnery.
In the end, though, this dispute is irrelevant because
Norman-Nunnery cannot show that the defendants’ non-
discriminatory reason for refusing to hire her is pretext.
Nor can she demonstrate causation on her claim for
marital association retaliation.
No. 09-1757 17
1.
Norman-Nunnery contends that she has direct evi-
dence of race discrimination and that she can also
defeat summary judgment using the McDonnell Douglas
burden-shifting analysis. We begin with her direct evi-
dence. Norman-Nunnery contends that Fujimoto’s
study of MATC’s hiring practices and the suspicious cir-
cumstances surrounding the missing documents both
supply direct evidence of discriminatory intent. As
we discussed above, there is nothing suspicious about
the loss of certain documents in the two office moves
that took place between the time the hiring process
was underway and the time Norman-Nunnery first
complained of discrimination. Nor does Fujimoto’s non-
experimental study aid her case. Fujimoto’s study con-
cluded only that MATC’s use of the depth-and-breadth
criteria tended to favor inside candidates, which had
the effect of favoring non-minority candidates. But
Norman-Nunnery must show that it is more likely than
not that she was harmed by discriminatory acts. A study
showing that certain hiring practices correlated with
a negative effect on minority hiring, although relevant,
will not by itself meet the “more likely than not”
standard for a claim of discrimination against an indi-
vidual plaintiff. Baylie v. Federal Reserve Bank of Chicago,
476 F.3d 522, 524 (7th Cir. 2007).
Statistical analysis is relevant in the technical sense
that it “has a tendency to make the existence of [a
material] fact . . . more probable or less probable
than it would be without the evidence.” Fed.R.Evid.
18 No. 09-1757
401. But data showing a small increase in the prob-
ability of discrimination cannot by itself get a plaintiff
over the more-likely-than-not threshold; it must be
coupled with other evidence, which does most of
the work.
Baylie, 476 F.3d at 524. See also Nichols v. Southern Illinois
University-Edwardsville, 510 F.3d 772, 782 (7th Cir. 2007)
(“a plaintiff may use pattern evidence of disparate treat-
ment even if that evidence is not rigorously statistical,
although, standing alone, it is insufficient evidence to
withstand summary judgment”); Barricks v. Eli Lilly &
Co., 481 F.3d 556, 559 (7th Cir. 2007) (noting the
importance of further analysis and context when relying
on raw data in employment discrimination disputes).
Norman-Nunnery has no other direct evidence of dis-
crimination. Therefore, she must make her claim, if at all,
under the McDonnell Douglas burden shifting analysis.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
02 (1973).
Under the burden shifting analysis, a plaintiff must
first establish a prima facie case of hiring discrimination by
demonstrating:
(i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the
employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his
rejection, the position remained open and the em-
ployer continued to seek applicants from persons of
complainant’s qualifications.
No. 09-1757 19
McDonnell Douglas, 411 U.S. at 802; O’Neal v. City of New
Albany, 293 F.3d 998, 1003 (7th Cir. 2002); Senner v.
Northcentral Technical College, 113 F.3d 750, 754-55 (7th
Cir. 1997). To withstand summary judgment on the prima
facie case, the plaintiff need only show that there is a
genuine issue of material fact regarding these elements.
O’Neal, 293 F.3d at 1003. If the plaintiff establishes a
prima facie case, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for not
hiring the plaintiff. McDonnell Douglas, 411 U.S. at 802;
O’Neal, 293 F.3d at 1005; Senner, 113 F.3d at 755.
Normally, we first determine whether a plaintiff has
established a prima facie case before putting the em-
ployer to the burden of demonstrating a non-discrim-
inatory reason for not hiring the plaintiff and engaging
in the pretext analysis. Everroad v. Scott Truck Systems,
Inc., 604 F.3d 471, 477 (7th Cir. 2010).
In some cases, though, the issue of qualifications for
the job and the question of pretext overlap. When the
employer asserts as the non-discriminatory reason for not
hiring the plaintiff that she was not as qualified as other
candidates for the position, the credibility of the em-
ployer’s assertion is at issue for both the second and
fourth elements of the plaintiff’s prima facie case and the
pretext analysis. Everroad, 604 F.3d at 477-78. There is
a good deal of overlap in this case between these key
issues and we therefore analyze them together.
There is no dispute that Norman-Nunnery belongs to
a racial minority or that she met the minimal qualifica-
tions for the job. Nor is there any dispute that she was
20 No. 09-1757
not chosen for the job, and MATC then continued to
seek applicants from the pool of other qualified can-
didates. But MATC had a large number of minimally
qualified candidates and sought to select from that
larger pool the candidates who were most qualified for
the job to proceed to the next phase of the hiring pro-
cess. MATC has proffered as its legitimate, non-discrim-
inatory reason for not interviewing or hiring Norman-
Nunnery that she scored lower on the depth-and-
breadth criteria than the applicants who advanced to
the interview stage. She also had lower scores than the
person ultimately hired for the position. The numerical
evaluation system the college developed to screen appli-
cants meets the employer’s burden to state a non-discrimi-
natory reason for refusing to hire Norman-Nunnery.
Senner, 113 F.3d at 755. The burden therefore shifts back
to Norman-Nunnery to produce evidence from which
a reasonable fact-finder could conclude that MATC’s
stated reason was a pretext. Senner, 113 F.3d at 755.
The district court was correct that Norman-Nunnery
has presented no evidence calling into question the sin-
cerity of the non-discriminatory reason the defendants
gave for not interviewing or hiring Norman-Nunnery. As
evidence of pretext, Norman-Nunnery first cites MATC’s
shifting explanation for the disappearance of important
documents. As we discussed above, there is nothing
suspicious about MATC’s explanation for the disappear-
ance of the documents. Norman-Nunnery next cites
Fujimoto’s study. But we have already determined that
statistical data, although relevant, cannot alone meet
the “more likely than not” standard for a specific
No. 09-1757 21
hiring decision about an individual. Without context,
Fujimoto’s study sheds little to no light on whether race
played a part in this particular employment decision. In
context, the undisputed facts demonstrate that MATC
purposely sought to increase the number of minority
candidates who would advance to the interview phase
of the hiring process. In addition to the African-
American woman who scored high enough on the depth-
and-breadth criteria to be included in the original pool
of ten interview candidates, the committee also selected
the next two highest scoring minority candidates to
be interviewed.
At every stage of the process, MATC applied the same
criteria to each candidate, and Norman-Nunnery has no
evidence to the contrary. The depth-and-breadth
criteria were established by a committee before any
applications were reviewed, so any suggestion that the
criteria were rigged to exclude Norman-Nunnery fails
for lack of evidence. That Wynn and Fujimoto thought
Norman-Nunnery was qualified for the job does not
advance her cause. Each spoke to Norman-Nunnery
before the depth-and-breadth criteria were established
and neither man was involved in the process of com-
paring the applications of all of the minimally qualified
applicants. 3 Thus neither could say whether Norman-
3
Fujimoto testified that he compared Norman-Nunnery’s
application to those of the applicants chosen for interviews.
After that review, Fujimoto argued to Stryker, Thomas and
Bassett that Norman-Nunnery’s qualifications were not
(continued...)
22 No. 09-1757
Nunnery’s application was comparatively better (or
worse) than the candidates who advanced to the inter-
view process. Nor is it significant that the defendants
refused to stray from the depth-and-breadth criteria
when asked to do so by Fujimoto. Refusing to give
Norman-Nunnery an advantage that no other candidate
had is not evidence of discrimination. In short, after
reviewing the evidence cited by Norman-Nunnery, we
find no evidence supporting her claim of pretext. The
district court correctly granted judgment in favor of
the defendants on her claim of racial discrimination in
hiring.
2.
Norman-Nunnery also claims that the defendants
failed to hire her because of their animosity toward her
husband, Willie Nunnery. She frames this as a claim
for “marital association retaliation.” We take Norman-
Nunnery’s claim to be not that the defendants discrimi-
nated against her because she was married in general
but because she was married to Willie Nunnery in par-
ticular. Norman-Nunnery relies in part on Christensen
v. County of Boone, Illinois, 483 F.3d 454 (7th Cir. 2007).
3
(...continued)
obvious from the face of her application but would become
apparent if they interviewed her. This contention demonstrates
a belief by Fujimoto that Norman-Nunnery’s application
compared unfavorably on its face to those of the candidates
who advanced.
No. 09-1757 23
There, we held that the Due Process Clause of the Four-
teenth Amendment protects a non-marital, romantic
relationship against direct and substantial interference
by the government. 483 F.3d at 463. We emphasized that,
although the “Constitution prevents fundamental rights
from being aimed at,” it does not “prevent side effects
that may occur if the government is aiming at some other
objective.” 483 F.3d at 463. Moreover, we noted that
“[o]fficial conduct that represents an abuse of office (as
opposed to, say, the implementation of a statutory duty)
violates the substantive component of the due process
clause only if it ‘shocks the conscience.’ ” Christensen,
483 F.3d at 464.
Norman-Nunnery also cites Adler v. Pataki, 185 F.3d 35
(2d Cir. 1999), where a public employee contended that
he was fired from his job in retaliation for a lawsuit
his wife filed against state officials. The Second Circuit
found that a claim that adverse action was taken against
a person in retaliation for the conduct of that person’s
spouse should be analyzed under the First Amendment,
as a violation of the right of intimate association. 185
F.3d at 44. The court noted that the plaintiff would be
required to demonstrate that his wife’s lawsuit was the
motivation for his discharge. 185 F.3d at 45-46.
Under either case, Norman-Nunnery’s claim cannot
survive summary judgment because she has failed to
provide any evidence that the defendants refused to
hire her because of her marriage to Willie Nunnery. Argu-
ably she has presented evidence that they were aware
she was married to Willie Nunnery and that they
24 No. 09-1757
harbored ill feelings toward him. But she has presented
no evidence that they were motivated by their animosity
toward Willie Nunnery in passing her over for the
job. To the contrary, all of the uncontroverted evidence
demonstrates that the candidates who advanced to the
interview stage and the candidate who ultimately was
hired all had depth-and-breadth scores that exceeded
those of Norman-Nunnery. The depth-and-breadth scores
were a legitimate, non-discriminatory criteria for distin-
guishing among the minimally qualified applicants.
Her claim thus fails for lack of evidence. The defendants
would prefer that we find that Norman-Nunnery’s
claim fails as a matter of law, that a public employer’s
refusal to hire a person because of animosity toward
that person’s spouse can never be actionable as a Con-
stitutional claim. Because Norman-Nunnery’s claim fails
for a lack of evidence, we need not decide whether the
claim is viable as a matter of law. We reserve that
question for the case in which it is clearly presented.
III.
Norman-Nunnery has no evidence that the defendants’
legitimate, non-discriminatory reason for not hiring her
is pretext. She is unable to demonstrate that the decision
not to interview or hire her was due to her race or her
marital association with Willie Nunnery. The judgment
of the district court is therefore
A FFIRMED.
11-8-10