The 7th Circuit on Nov. 8 acknowledged that employees of the college might have known that Judy R. Norman-Nunnery was married to Nunnery, and that he had once filed a frivolous lawsuit against the college.
But the court concluded that, even if they did know that, they had legitimate non-discriminatory reasons for not hiring her.
In 2001, Willie Nunnery filed a lawsuit against MATC on behalf of a client claiming discrimination. The district court held that the suit was frivolous and that the client had forged documents.
The 7th Circuit affirmed the dismissal, and rejected the appeal as “patently frivolous.” Jimenez v. Madison Area Technical College, 321 F.3d 652 (7th Cir. 2003).
In part because of his actions in that lawsuit, Nunnery was suspended for six months in 2007; he was later suspended again, for three years, in 2009, because of actions in other cases.
In the interim, in 2005, Nunnery’s wife, Judy R. Norman-Nunnery, applied for a job at MATC, but did not get an interview. She then sued MATC and three MATC employees involved in the hiring process. All three had testified at the sanctions hearing in the Jimenez case.
Norman-Nunnery alleged that the three discriminated against her because of her race and because of her marriage to Nunnery.
The district court granted summary judgment to the defendants, and the 7th Circuit affirmed in an opinion by Judge Ilana Diamond Rovner.
The court concluded that a reasonable fact-finder could infer from the facts that the three employees knew Norman-Nunnery was African-American and that she is married to Willie Nunnery.
But the court found this irrelevant, “because Norman-Nunnery cannot show that the defendants’ non-discriminatory reason for refusing to hire her is pretext.”
On the contrary, the court found, “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.”
The court then turned to whether Norman-Nunnery could state a claim for discrimination based on animosity towards her husband.
The court noted two possible legal theories for such a claim.
First, in Christensen v. County of Boone, Illinois, 483 F.3d 454 (7th Cir.2007), the court held that official conduct that represents an abuse of office and shocks the conscience, violates the due process clause.
Second, in Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999), the 2nd Circuit held that retaliation for the conduct of a person’s spouse should be analyzed under the First Amendment right of intimate association.
But the court held that Norman-Nunnery could not prevail under either theory, because she prevented no evidence that the defendants refused to hire her because of her marriage to Nunnery.
“Arguably she has presented evidence that they were aware she was married to Willie Nunnery and that they 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.”
As a result, the court declined to decide whether a public employer’s retaliation based on animosity toward someone’s spouse could ever be actionable. “We reserve that question for the case in which it is clearly presented,” Rovner refrained.
David Ziemer can be reached at firstname.lastname@example.org
What the court held
Issues: Can a public employer be liable for discrimination based on animosity toward the plaintiff’s spouse?
Holdings: The court need not decide, because the plaintiff failed to present evidence that animosity motivated the employer.