Lack of evidence ends federal employment discrimination lawsuit against MATC 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 10, 2010 – A woman that sued Madison Area Technical College (MATC) on federal employment discrimination claims did not produce the evidence necessary to sustain the claims, a panel for the U.S. Court of Appeals for the Seventh Circuit recently held.

In Norman-Nunnery v. MATC, No. 09-1757 (Nov. 8, 2010), Judy Norman-Nunnery, an African-American woman, sued MATC and three employees alleging hiring discrimination based on race and retaliation for marital association. Norman-Nunnery’s husband, Willie Nunnery, had filed a frivolous race discrimination suit on behalf of a client in 2000, alleging the same MATC employees discriminated against her.

In 2002, Norman-Nunnery applied for the position of Executive Dean of Learning at MATC. MATC employees Carol Bassett, Jackie Thomas, and William Stryker were on the hiring committee. Ultimately, Norman-Nunnery was not hired for the position.

When Willie Nunnery was sanctioned for filing a frivolous lawsuit in 2000, two of these employees testified to the harm they suffered from being falsely accused of racial discrimination. Willie Nunnery’s law license was suspended as a result of the case.

Norman-Nunnery filed suit in the U.S. District Court for the Western District of Wisconsin, alleging that defendants violated Title VII for race and marital association discrimination, and violated 42 U.S.C section 1981 and the First and 14th amendments to the U.S. Constitution. The district court granted summary judgment to defendants, concluding that Norman-Nunnery did not offer enough evidence to support her claims. She appealed.

Spoliation doctrine 

Norman-Nunnery argued that MATC lost documents that would have favored her claims for race discrimination and marital association retaliation. The spoliation doctrine, she argued, allows the court to infer that the missing documents would have supported her claims.

But the three-judge appeals panel – in an opinion written by Judge Ilana Rovner – explained that “the crucial element in a spoliation claim is not the fact that the documents were destroyed but that they were destroyed for the purpose of hiding adverse information.”

“Norman-Nunnery has offered no evidence that the defendants lost or destroyed the documents for the purpose of hiding adverse information,” Judge Rovner wrote.

The panel noted that MATC’s record filing system “left something to be desired” and that MATC moved its human resources department twice before Norman-Nunnery filed her claim.

“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.”

Lack of evidence 

The district court concluded that Norman-Nunnery failed to produce evidence that MATC decision-makers “knew her race or marital status at the time she was eliminated from the pool of candidates to be interviewed.” The appeals panel agreed.

Of the 76 persons that applied for the position, the initial screen reduced the applicant pool to 46 candidates, then to 10 candidates. Based on the criteria for assessing candidates, Norman-Nunnery did not make the cut for the final 10 candidates. One minority candidate did, and the hiring committee added two others based on the college’s equal employment goals.

Based on prior contact with Willie Nunnery, the appeals panel concluded that 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.”

But because Norman-Nunnery could not show the defendants’ nondiscriminatory reason for hiring her was a pretext, the panel concluded the defendants’ knowledge about race or marital association was irrelevant. In other words, Norman-Nunnery could not prove that she had the best qualifications for the job based on the hiring committee’s criteria.

Direct evidence and McDonnell Douglas 

Norman-Nunnery argued that she had direct evidence of race discrimination based on a study of hiring practices and the suspicious circumstances of lost documents.

First, the panel explained that Norman-Nunnery “must show that it is more likely than not that she was harmed by discriminatory acts,” and concluded a study that tended to show MATC’s hiring criteria favored inside non-minority candidates “will not by itself meet the ‘more likely than not’ standard for a claim of discrimination.” Second, the court concluded that there was nothing suspicious about the lost documents.

Without direct evidence, the panel explained that Norman-Nunnery “must make her claim, if at all, under the McDonnell Douglas burden shifting analysis.” See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under that analysis, the plaintiff must first establish a prima facie case of discrimination by proving: 1) the plaintiff belongs to a racial minority; 2) the plaintiff applied and was qualified for the job; 3) despite the qualifications, plaintiff was rejected; and 4) after the rejection, the position remained open, and the employer continued to seek applicants with similar qualifications.

If the plaintiff “establishes a prima facie case,” the panel explained, “the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for not hiring the plaintiff.”

The court held that since MATC’s numerical evaluation system “meets the employer’s burden” to show a non-discriminatory reason for not hiring Norman-Nunnery, the burden shifts back to Norman-Nunnery to show the stated reason was a pretext.

“[A]fter reviewing the evidence cited by Norman-Nunnery, we find no evidence supporting her claim of pretext,” the panel concluded.

Marital association retaliation 

Citing Christensen v. County of Boone, Illinois, 483 F.2d 454 (7^th Cir. 2007) and Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999), Norman-Nunnery claims that MATC engaged in “marital association retaliation” based on their animosity for her husband’s case against them.

But the panel disagreed. “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.”

Thus, the appeals panel affirmed the district court’s summary judgment ruling in favor of MATC.