and to his own evaluation of the twenty-six applications, and
concurred in the compiled rankings.
The top three candidates were then scheduled for interviews;
the second three candidates were held in reserve for additional
interviews should the first three candidates prove unacceptable.
The interviews were conducted by various members of the screening
committee who were available at the time of each interview. After
the first set of three interviews, the screening committee
recommended Mr. Rhoads' selection.
Evans reported the recommendation to Mr. Hedrick who approved
the recommendation and in turn forwarded it to Director McMillan.
Director McMillan approved the recommendation and submitted it to
the museum's Board of Directors who ultimately confirmed the
appointment. (Assistant Director Hedrick, Director McMillan, and
the Board all had independent authority to reject the consensus
These facts do not establish that the Plaintiff suffered from
discrimination based on her sex.
42 U.S.C. § 1983
In order to establish liability for sex discrimination in
violation of 42 U.S.C. § 1983, a plaintiff must allege with
clarity and prove by a preponderance of the evidence (1) that
"the conduct complained of was committed by a person acting under
color of state law, and (2) [that] this conduct deprived a person
of rights, privilege, or immunities secured by the Constitution
or laws of the United States." Parratt v. Taylor, 451 U.S. 527,
535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); see, e.g.
Coleman v. Frantz, 754 F.2d 719, 722 (7th Cir. 1985).
The parties do not dispute that all of the Defendants are state
employees who conduct themselves under color of state law. See
generally, Drollinger v. Milligan, 552 F.2d 1220 (7th Cir. 1977).
To establish liability, however, the Plaintiff must also show
that each Defendant "committed" the conduct of which she
complains. The doctrine of respondant superior does not apply;
absent direct involvement in the alleged constitutional
deprivation, no liability will attach. Crowder v. Lash,
687 F.2d 996 (7th Cir. 1982).
The second branch of the proof of a claim under § 1983
implicates the concepts of causation and mental state grafted
from the common law.
A defendant may not be found to have violated § 1983 unless his
alleged conduct can be said to have caused the alleged injury.
See Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62
L.Ed.2d 481 (1980); Lossman v. Perkarske, 707 F.2d 288, 290-91
(7th Cir. 1983); cf. Taliferro v. Augle, 757 F.2d 157, 161-62
(7th Cir. 1985) (dealing primarily with damages). The plaintiff
may prevail in a suit under 42 U.S.C. § 1983 only if he can
establish that the deprivation of rights he complains of would
not have occurred "but for" the Defendant's conduct. Givhan v.
Western Line Consolidated School District, 439 U.S. 410, 417, 99
S.Ct. 693, 697, 58 L.Ed.2d 619; Lossman, 707 F.2d at 291.
The mental state required for establishing a violation of §
1983 depends on the particular constitutional provision at issue.
E.g., Crawford v. Edmonson, 764 F.2d 479, 486 (7th Cir. (1985).
Thus, before determining the mental state that a plaintiff must
prove, the court must first determine with precision the
constitutional right upon which Defendants allegedly infringed.
Throughout the course of this litigation, the Plaintiff has
never made precisely clear what federal right Defendants
allegedly denied her. Her amended complaint merely states that
"Plaintiff was entitled to protection by the Fourteenth Amendment
to the United States Constitution from discrimination by
Defendants on the basis of sex in the matters of employment."
Complaint, Item # 33, par. 22.) The Fourteenth Amendment provides
in relevant part:
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1. The Plaintiff does not assert any
right peculiar to citizenship nor does she challenge any state
law. An employment application does not implicate any life or
property interest. Nor does the denial of reemployment infringe
on constitutionally protected liberty — unless the manner of the
denial attaches some permanent stigma to the applicant which
precludes future employment. Munson v. Friske, 754 F.2d 683,
693-94 (7th Cir. 1985). The Plaintiff has neither alleged nor
proved any permanent stigma resulting from her failure to obtain
reemployment. Thus, Plaintiff may not assert any denial of
substantive or procedural due process.
The Plaintiff's claim must, therefore, rest on the most obvious
theory that she was denied the equal protection of the laws. An
employee of the state, imbued with state authority, "subjected"
the Plaintiff's job application to special consideration because
of her classification as a woman — a deprivation of the
Plaintiff's constitutional right to be free from such a
classification by the state unless the classification appears
justified after careful scrutiny. 42 U.S.C. § 1983. Defendant
asserts no justification for the alleged classification. Thus,
sex discrimination, if it occurred, would be unconstitutional.
To maintain a claim under 42 U.S.C. § 1983 based on the equal
protection clause of the Fourteenth Amendment, a plaintiff must
demonstrate that a defendant discriminated intentionally. See
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256,
278-80, 99 S.Ct. 2282, 2295-96, 60 L.Ed.2d 870 (1979); Parker v.
Board of School Commissioners of the City of Indianapolis,
729 F.2d 524, 528 (7th Cir. 1984); cf. Washington v. Davis,
426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (cause of action under
42 U.S.C. § 1981).
Applying the legal concepts of causation and intent to the
facts of this case, no reasonable jury could find any of the
defendants liable under 42 U.S.C. § 1983.
I. Director McMillan had no direct involvement in the selection
process to which Plaintiff objects. The Plaintiff cannot attach
liability to him simply by having sought and obtained a meeting
with the director. The director's expressions of assurance that
Plaintiff's job application would receive fair consideration
negates rather than establishes any inference of discriminatory
intent. The procedure for screening applications established to
follow through on the director's assurances further demonstrates
a sincere desire to ensure fairness and precludes any conclusion
that the Plaintiff would have obtained the open position "but
for" the director.
It is true that after Plaintiff's interview with the director,
Evans was made chairman of the screening committee, but he only
played the limited role of compiling the rankings made by three
female employees who reviewed the applications independently,
made all of the initial evaluations and made the only evaluations
of Plaintiff's application. To add an additional check on the
process, Assistant Director Hedrick read through the
applications, reviewed the screening committee members'
recommendations, and ascertained that Evans' compilation of the
rankings accurately reflected the screening committee's
Director McMillan's only participation in the entire selection
process was to assure the establishment of a structured review
process and to approve the final recommendation previously
approved by Assistant Director Hedrick and the screening
Almost every operating procedure in an organization can be said
to have been initiated by the chief executive, and almost every
decision eventually receives his or her approval, but such events
cannot form the basis of liability under 42 U.S.C. § 1983. Some
greater involvement is required. Moreover, the procedure
established here appears unobjectionable. Its checks and reviews
aim at achieving fairness in the selection procedure without
wholly excluding from the process those employees most qualified
to make the selection.
II. As with Director McMillan, Assistant Director Hedrick's
participation in the candidate screening process was minimal
albeit more direct. The evidence adduced at trial does not offer
a shred of support for Plaintiff's necessary contention that the
assistant director harbored discriminatory intent. Hedrick knew
that Evans preferred that a man fill the Collections
Assistantship. But the application form did not in any manner
favor men. The Plaintiff insists that Hedrick discouraged her
from seeking the assistantship but she offers no evidence to
support a reasonable inference that Hedrick discouraged her from
applying because she was a woman. Moreover, even if Hedrick
shared Evans' discriminatory animous, the record reveals no fact
or inference to support the necessary proposition that "but for"
Hedrick's sexism, Plaintiff would not have been discriminated
against. Hedrick did not evaluate the Plaintiff's application;
his function was to ensure that Evans' compilations accurately
reflected the three female screening committee members'
III. The Plaintiff's "proofs" against Defendants McKenna,
Johnson, and Pickel-Hedrick — the female employees who screened
the twenty-six applications — also failed to demonstrate any
sexist animus. Two of the three screening committee members had
input into the drafting of the application which contained no sex
biased material. They all knew of Evans' preference that a man
fill the position, yet they all ranked women among the most
qualified applicants. The rankings — at least with respect to
Plaintiff and the six male and female finalists — correctly
evaluated the finalists as the superior candidates based on the
legitimate criteria of age, experience, education, and
background. Finally, they each made their evaluations
independently; no single set of evaluations controlled the
selection process. Thus, in the absence of any proof that they
acted in concert to deny Plaintiff equal consideration, Plaintiff
cannot reasonably maintain that she would have received the
position "but for" any single member's discriminatory intent.
IV. With respect to Evans, the Plaintiff may have established
facts sufficient to support an inference that he intended to deny
her the collections assistantship because of her sex. He did
publicly state that he preferred a man for the open position,
although he proceeded to draft an application form that is
without sex bias. The selection process used, however, prevented
Mr. Evans from interfering with the Plaintiff's application
unless and until she received favorable evaluations from three of
her fellow workers. While Mr. Evans made his preference known to
the members of the ad hoc screening committee, the evidence
indicates that despite his preferences the committee members
recommended women as top contenders for the available position.
Evans simply was not in a position to cause the Plaintiff to be
denied her equal rights under the law. The evidence against Evans
falls woefully short of the "but for" mark.
Causation is a more difficult concept to comprehend than
intent; it requires the application of a legal concept in
addition to common intuition. A jury sensing the presence of an
impermissable animus might very well overlook the necessity of
determining what consequence resulted, as a matter of law, from
a clearly prohibited state of mind. The Court recognizes that the
elements of a sex discrimination claim require the application of
intuition. As a general principle, the law wisely consigns
the determination of such issues to the jury. However, the Court
cannot, consistent with its duty, sanction a misunderstanding of
the facts and a misapplication of the law. Cf., Box v. A & P Tea
Co., 772 F.2d 1372, 1378 (7th Cir. 1985).
Plaintiff's theory of liability in this case is most troubling.
In essence, her argument appears to be that "one rotten apple
spoils the barrel." But she has not established that any of the
Defendants were rotten. Moreover, the law of apple barrels does
not govern the law of sex discrimination. Plaintiff argues that
if one employee has manifested an unconstitutional intent to
discriminate in the hiring process the entire process is
therefore tainted. The procedure of independent checks and
reviews established here do not satisfy her.
Apparently, only an independent review by persons wholly
unaware of the existence of any sex based animus will satisfy
Plaintiff. Such an impracticable standard would effectively
preclude employers from fulfilling their responsibility to serve
as the first bulwark against discrimination. Employers must be
allowed to fashion employment procedures which will involve those
employees most qualified to make efficient, informed employment
decisions and yet prevent any single employee, who is essential
to the decision making process, from exercising his personal
preferences or impermissable prejudices.
The courts' "task . . . is not to assess the `wisdom' of
employment decisions but rather to determine whether an
employer's selection procedures comport with the law." Parker,
729 F.2d at 529. The procedures employed here do comport with the
law. They prevented any one person's preference or prejudice from
controlling the selection process and more particularly they
insured that each applicant obtained individual consideration by
informed decision makers whose evaluations were based on
42 U.S.C. § 1985(3)
The portion of 42 U.S.C. § 1985(3) relevant to this cause of
If two or more persons . . . conspire . . . for the
purpose of depriving, either directly or indirectly,
any person . . . of the equal protection of the
laws . . . the party so injured or deprived may have
an action for the recovery of damages occasioned by
such injury or deprivation, against any one or more
of the conspirators.
42 U.S.C. § 1985(3) (emphasis added).
For the purpose of this opinion, the Court accepts that women
constitute one of the classes "that have been previously
recognized as possibly supporting a Section 1985(3) claim."
D'Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1486 (7th Cir. 1985)
(emphasis added). See also Life Insurance Company of North
America v. Reichardt, 591 F.2d 499 (9th Cir. 1979) (finding
"women" a class within the protective ambit of
42 U.S.C. § 1985(3)). But see Great American Federal Savings & Loan
Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d
957 (1979) (42 U.S.C. § 1985(3) does not cover claims such as sex
discrimination for which other statutory remedies exist).
Nevertheless, as discussed supra, no jury could reasonably find
the necessary invidious class based animus motivating more than
a single defendant. Griffin v. Breckenridge, 403 U.S. 88, 103 n.
10, 91 S.Ct. 1790, 1798 n. 10, 29 L.Ed.2d 338 (1971). More
specifically, the Plaintiff has adduced no evidence indicating an
agreement to discriminate which is a necessary pre-requisite to
any finding of conspiracy. The existence of a conspiracy by the
very nature of conspiracy is a difficult proposition to prove.
Quinones v. Szorc, 771 F.2d 289, 291 (7th Cir. 1985). But this
difficulty does not remove the Plaintiff's burden to prove the
existence of a conspiracy by a preponderance of the evidence.
Where, as here, the available evidence as to the alleged overt
acts in furtherance of the conspiracy indicates that all of the
named Defendants disagreed with, ignored, and/or acted in
contravention of Evans' articulated preference for a male, the
existence of a conspiracy simply cannot be established.
In addition to the inadequacy of the proof, the single,
intra-entity conspiracy which Plaintiff attempts to prove does
not establish a legal claim. Dombrowski v. Dowling, 459 F.2d 190
(7th Cir. 1972); cf. Craft v. Board of Trustees, 516 F. Supp. 1317,
1324 (N.D.Ill. 1981) (Flaum, J., found § 1985(3) applicable
where the employees of a business entity engaged in a continuing
"series of discriminatory acts" not "a single act of
discrimination" as alleged here).
At trial, a plaintiff must adduce evidence sufficient to
support all of the elements the law requires for the jury to find
liability. Allegations, insinuations, and argument will not
suffice. The evidence here did not satisfy the burden, and the
jury verdict cannot stand.
Judgment n.o.v. for Defendant Robert Evans.