White Professor Flunks on Reverse Discrimination Claim

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By Laura D. Francis

Sept. 23 — A white visiting professor who wasn't hired for a tenure-track position—even though his wife originally was on the search committee—failed to prove the decision was the result of reverse race discrimination, the U.S. Court of Appeals for the Seventh Circuit held Sept. 23.

Gregory Rahn had evidence that Northern Illinois University Board of Trustees member Promod Vohra said he wouldn't hire a white professor if there were qualified minority applicants. But the appeals court said Rahn lacked any evidence that Vohra was involved in the decision to exclude him from the list of candidates for the position or that the individuals who did make that decision harbored any racial animus.

In fact, Rahn never addressed the university's argument that Dr. Gary Chen, the nonwhite professor who ultimately was selected, was better qualified, the court said. Chen even received more votes than Rahn from the search committee before it was discovered that Rahn's wife was a member of the committee and had a conflict of interest, the court said.

“There is, in short, no evidence in the record at all that contradicts the claim by NIU that Chen was more qualified for the position than Rahn, and that he was hired for that non-discriminatory reason,” Judge Ilana Diamond Rovner wrote for the court. It therefore affirmed the district court's grant of summary judgment on his claim under Title VII of the 1964 Civil Rights Act.

Rahn also had no evidence that he faced retaliation for filing a grievance over the failure to hire him, the Seventh Circuit found. It affirmed the district court's holding that he had waived his retaliation claim because, except for two sentences at the end of his response, he failed to address any of NIU's arguments.

Wife Sat on Search Committee for Position

According to the court, Rahn got a visiting professor position at NIU the same year that his wife, Regina Rahn, was hired as a tenure-track assistant professor in NIU's Department of Industrial and Systems Engineering in the College of Engineering and Engineering Technology. A tenure-track position opened up in the department, and Rahn applied.

A search committee was formed, which included Regina Rahn, three other professors and Michelle Coovert, a student working as a teaching assistant for Gregory Rahn. The committee whittled down the 82 candidates to 10, who would proceed to a telephone interview. Rahn received three votes—sufficient to place him in the top 10—whereas Chen, who ultimately got the job, received four votes.

A few days later, Vohra, dean of the College of Engineering, held an emergency meeting because he discovered that Regina Rahn was on the search committee in violation of NIU policy. It was during this meeting that he allegedly said he wouldn't hire a white man for the department if there was a qualified minority applicant.

Following the meeting and Regina Rahn's removal from the search committee, another committee member developed a metric to rate candidates. Based on this metric, Rahn didn't make the cut, and his wife rejoined the committee to help select from among the remaining candidates.

After Chen was selected, Rahn filed a grievance. When it was denied, he pursued his discrimination claim before the Equal Employment Opportunity Commission and eventually filed a lawsuit, which he lost on summary judgment in the district court.

Metric Not Designed to Exclude Professor

On appeal, the Seventh Circuit rejected Rahn's claim that the search committee developed the metric solely to exclude him from consideration. The court said Coovert testified that she thought the metric was used for this purpose. She later clarified that she thought the metric improperly valued academic experience over industry experience and that she valued the industry experience of professors such as Rahn.

“That testimony does not support the argument that the metric was a subterfuge for eliminating Rahn on racial grounds,” Rovner wrote. She found that Coovert didn't have personal knowledge as to the creation of the metric, nor did Vohra have any part in its creation.

Although Rahn claimed Vohra's comment was direct evidence of discrimination, the court said the dean wasn't involved in the decision to eliminate Rahn from consideration.

Rahn also had no evidence that the search committee's decision-making process involved any discrimination or racial animus, the court held. Rahn failed to argue that the metric was not used to assess the other candidates, including Chen, or that the metric didn't accurately reflect the job duties, it said.

“Although Rahn devoted significant time in the district court on wide-ranging allegations unrelated to his discrimination claim, including allegations that Vohra had committed perjury and questions as to actions taken by the university with respect to grading issues, Rahn did not even mention the name ‘Chen' in his brief and never addressed the defendants’ argument that Chen was chosen because he was more qualified,” Rovner wrote.

Qualification Argument Waived

NIU and the board members asserted that Rahn waived the argument that Chen wasn't more qualified. Rahn then attempted to file a sur-reply without asking the district court's permission, the Seventh Circuit said. The district court rejected the sur-reply, noting that Rahn didn't even address Chen's qualifications there.

“On appeal, Rahn does not address that waiver argument, and therefore cannot assert here that the committee's determination that Chen was more qualified was a pretext,” Rovner said. “That dooms his claim under the indirect method [of proof] as well, because even if Rahn was able to establish a prima facie case of discrimination under that method, he could not survive summary judgment; the defendants set forth a legitimate reason for choosing Chen based on the metric evaluation of his qualifications, and Rahn has waived any argument that the reason is pretextual.”

The Seventh Circuit also rejected two copyright infringement claims brought by Rahn and Genemetrix—a company he and his wife own—related to NIU's alleged use of a course note packet and a PowerPoint presentation.

Judges Diane P. Wood and Theresa L. Springmann joined the decision.

The Law Office of Fabian J. Rosati represented Rahn. The Illinois attorney general's office represented NIU and the members of the board of trustees.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/GREGORY_E_RAHN_et_al_Plaintiffs_Appellants_v_BOARD_OF_TRUSTEES_OF.