that Burton was an excellent candidate and in fact better than
Wiggs; or that Diesenberg gave her good reviews in order to cover
up his discriminatory feelings toward her. Not only are
plaintiff's allegations so vague and lacking in apparent
relevance that it is difficult to figure out how they are even
supposed to be significant, but plaintiff seeks to put defendants
in a "Catch-22" situation. If the employer gives an employee a
good performance evaluation, that is somehow supposed to be
probative of the employer's discriminatory animus, yet if the
employer gave the employee a poor evaluation, plaintiffs would no
doubt contend that the employer did so because of discrimination,
or to justify taking some action against the employee later on.
There is little to say about Burton's claim of sex
discrimination, since she has said virtually nothing about it
herself. In short, there is simply no evidence to support this
Webb fares no better. He stated at his deposition that he did
not believe that race was a factor in the team interview process,
in which Wiggs ranked highest. Shinaman Aff. Ex. B at 50, 72. He
testified that the main reason that he believed race was a factor
in Diesenberg's selection of Wiggs was Diesenberg's "inability to
explain to" Webb that Wiggs's hiring was based on anything other
than race when Webb spoke to Diesenberg afterwards. Id. at 77.
Neither Webb nor Diesenberg brought up the subject of race during
that discussion, however. Id. at 77-78. One can hardly expect
Diesenberg to have volunteered that race had not played a part in
his decision when the subject had not even been broached.
Webb also alleges that Diesenberg either discriminated against
or did not get along with certain other black males at Hillside,
but he is unaware of the details of the situations involved, and
his allegation that racial discrimination played a part are
wholly conclusory. They do not create a genuine issue of material
Plaintiffs also contend that Diesenberg's deposition testimony
indicates that the team interview process had nothing to do with
his decision to hire Wiggs. All that Diesenberg stated was that
ultimately the decision was up to him, which is true. Defendant
has never contended that Diesenberg was bound by the final team
Equally unpersuasive is plaintiffs' contention that the problem
with Wiggs's driving record is somehow probative of
discrimination. Had Wiggs been unconditionally hired in spite
of his driving record, that might be some evidence of pretext,
at least if plaintiffs could show that blacks or females were not
hired or promoted in similar circumstances, or that this was done
in violation of Hillside policy. But Wiggs's appointment was made
conditional upon his obtaining insurance company approval. There
is nothing remarkable about any of that.
I also note that the administrative committee, three of whose
five members were black, rejected plaintiffs' challenges to the
decision to hire Wiggs. While that is not conclusive on the issue
of discrimination, it does show that this was not just the
decision of one white male.*fn12 This was a multi-step process
involving numerous people, and at every level the hiring of Wiggs
was found to be a fair decision.*fn13
Defendant's motions for summary judgment in Hines v. Hillside
Children's Center, 96-CV-6203L (Docket Item 14), Leach v.
Hillside Children's Center, 98-CV-6038L, and Burton v. Hillside
Children's Center, 97-CV-6326L (Docket Item 11), are granted,
and the complaints are dismissed with prejudice.
IT IS SO ORDERED.