Perlean Griffin, et al v. Carleton Finkbeiner, et al

Filing

OPINION and JUDGMENT filed: The grant of summary judgment on Daugherty's race-discrimination claim and the grant of the City's motion in limine are REVERSED. The grant of judgment as a matter of law to Finkbeiner is REVERSED, and the case is REMANDED for further proceedings. Decision for publication pursuant to local rule 206. Richard F. Suhrheinrich, Karen Nelson Moore (AUTHORING), and Eric L. Clay, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0273p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
PERLEAN GRIFFIN; DWAYNE MOREHEAD,
Plaintiffs, No. 10-3659
GARY L. DAUGHERTY,
Plaintiff-Appellant, ,>
v.
CARLTON S. FINKBEINER, Mayor, City of
Toledo; CITY OF TOLEDO,
Defendants-Appellees. N
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:08-cv-1032—Jack Zouhary, District Judge.

Argued: April 17, 2012
Decided and Filed: August 20, 2012
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Emily J. Lewis, LAW OFFICES OF EMILY LEWIS, LLC, Dublin, Ohio,
for Appellant. Adam Wade Loukx, CITY OF TOLEDO LAW DEPARTMENT, Toledo,
Ohio, for Appellees. ON BRIEF: Emily J. Lewis, LAW OFFICES OF EMILY LEWIS,
LLC, Dublin, Ohio, for Appellant. Adam Wade Loukx, Ellen Grachek, CITY OF
TOLEDO LAW DEPARTMENT, Toledo, Ohio, for Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Gary Daugherty
appeals the district court’s grant of summary judgment in favor of Defendants-Appellees
City of Toledo and Toledo’s former Mayor Carlton Finkbeiner (collectively, “the City”)
on Daugherty’s Title VII and Ohio state-law race-discrimination claim and the district
1

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court’s grant of the City’s motion in limine to exclude certain “other acts” evidence that
Daugherty argues is relevant to his Title VII and Ohio state-law retaliation claim.
Daugherty also appeals the grant of judgment as a matter of law in favor of Finkbeiner.
Because the district court applied the incorrect standard by requiring Daugherty to meet
an additional step beyond the McDonnell Douglas framework, we REVERSE the grant
of summary judgment on the discrimination claim. Because the district court improperly
based its evidentiary ruling solely on whether the same decisionmaker was involved in
Daugherty’s termination and in the “other acts,” we also REVERSE the grant of the
City’s motion in limine as an abuse of discretion. In light of these holdings, we
REVERSE the grant of judgment as a matter of law in favor of Finkbeiner.
I. BACKGROUND
Daugherty worked for the City of Toledo as a manager in the Environmental
Services Division (“ESD”) of the Department of Public Utilities (“DPU”) from January
2006 to March 2007, when he was fired. At the ESD, Daugherty managed brownfield
redevelopment projects for the City. At numerous times during his tenure, Daugherty
informed his supervisor and other city officials that he believed he was underpaid and
that he was paid less than white managers. Daugherty’s annual salary was $48,500, his
white predecessor had earned an annual salary of $56,000, and his white subordinate
earned an annual salary of $49,000. Daugherty spoke with ESD Commissioner Casey
Stephens, DPU Director Robert Williams, mayoral Chief of Staff Robert Reinbolt, and
Mayor Carlton Finkbeiner about the pay issue. Finkbeiner once informed Daugherty that
Daugherty would receive a raise if he did something “exceptional.” Daugherty also
assisted Affirmative Action Director Perlean Griffin in conducting a pay study, which
reported a disparity in salary between certain black male managers (including
Daugherty) and white male managers.1 Daugherty never received a pay raise.
In 2006, Daugherty assisted two black DPU employees with discrimination
complaints against the City. ESD Commissioner Stephens and DPU Director Williams

1

Griffin was formerly a co-plaintiff in this case, but has settled with the City.

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told Daugherty not to speak with Griffin about discrimination complaints; Stephens told
Daugherty that assisting with discrimination complaints was not part of his job duties.
Human Resources Director Teresa Gabriel also told Daugherty to stop talking to Griffin;
Gabriel complained to Daugherty that a particular complaint with which he had assisted
should have gone to Human Resources instead of Affirmative Action.
According to Daugherty, he was also treated differently than white employees
in other aspects of his job. He contends that City officials evaluated his work more
harshly than the work of white employees and that, despite his position as second-incommand at the ESD, he was not placed in charge when Commissioner Stephens was
absent.
Daugherty also alleges that Finkbeiner used racially derogatory language at
meetings attended by the directors of the various City departments on multiple occasions
and otherwise disrespected black employees.2 Daugherty alleges that Finkbeiner stated
that blacks lack parenting skills, black men cannot hold jobs or take care of their
families, black women just want to have babies and collect welfare, and black ministers
are pimps. At a Director’s meeting, Finkbeiner complained that black employees lack
drive and professionalism. He once commented, “thank God I was not raised poor and
black,” and referred to then-Fire Chief Michael Bell (who is black) as “King Kong.”
Finkbeiner told Youth Commission Co-Director Dwayne Morehead (who is black) to
“get out of the lazy mode” and, comparing him to white female employees, said “is that
a black stain on the glass ceiling?” At one staff meeting, Finkbeiner yelled at Morehead
to sit down when he attempted to leave to go to the restroom, even though several white
attendees had left without comment from Finkbeiner. When Morehead recommended
that the City hire Morlon Harris, who, like Morehead, is a black man, to serve as
Morehead’s co-director of the Youth Commission, Finkbeiner responded that “the good
old boys on the 22nd floor would not want two black employees running the

2

Finkbeiner denies making many of these remarks. Because we are reviewing a grant of summary
judgment, we describe the disputed facts in the light most favorable to Daugherty as the non-moving party.

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department” and did not hire Harris.3 The only racially tinged remark that Daugherty
alleges that Finkbeiner made directly related to Daugherty was telling Griffin that
Daugherty was “lazy.”
In late 2006 or early 2007, Finkbeiner held a meeting with several City
department directors (including Williams) in which he expressed concern that City
employment was “top heavy” and recommended that the directors reduce the number of
administrative positions. The directors produced lay-off lists, which they presented to
the mayor and his chief of staff. As part of the 2007 budget, the City eliminated thirtynine positions, including Daugherty’s position. Of these eliminations, only six resulted
in an employee losing his or her job; the remainder involved vacant positions or
reassignments. Daugherty’s termination letter stated that the funding for his position had
been cut from the budget. According to Daugherty, however, his position was largely
funded by external grants rather than through the City’s operating budget. A few days
after Daugherty received the termination letter, Finkbeiner told Daugherty that he had
been terminated because he “d[id]n’t bust his ass enough.”
The City describes Daugherty’s termination as part of a reduction in force and
states that he was not replaced. By contrast, Daugherty contends that, six to eight
months after he was fired, the City promoted a white employee, Marissa DeLancey, to
work on brownfield projects and paid her an equivalent salary to what Daugherty had
earned. DeLancey was not, however, given the same title as Daugherty had held.
In April 2008, Daugherty filed suit against the City under Title VII and the Ohio
Civil Rights Act, alleging that his termination was an act of race discrimination and
retaliation and that the City constituted a hostile work environment for black employees.
In February 2010, the district court granted the City’s motion for summary judgment on
the discrimination claim, but denied summary judgment on the retaliation claim. As to
the race-discrimination claim, the district court held that Daugherty had made out a
prima facie case and had presented evidence that the City’s proffered reason for his
3

The phrase “the 22nd floor” is apparently a well-known Toledo metonym for the mayor’s office,
which is located on the twenty-second floor of One Government Center in downtown Toledo.

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termination (budgetary constraints) was pretextual. The court noted that the City and
Finkbeiner gave inconsistent reasons for the termination, with the termination letter
referencing budgetary constraints and Finkbeiner citing poor performance; further, the
record showed that Daugherty’s position was largely funded by grants, suggesting the
budgetary-constraint rationale for the termination lacked factual support.
Nonetheless, the district court granted summary judgment for the City. After
Daugherty presented evidence of a prima facie case and pretext, the court held, “there
is a final hurdle for Daugherty to overcome: he must offer some evidence that the real
reason for his termination was discrimination.” R.34 at 7 (Dist. Ct. Op.). The court
concluded that Daugherty had no evidence that the City’s proffered reason for his
termination was pretext for discrimination because the evidence in the record of potential
racial bias had no connection to the decision to terminate Daugherty. The district court
similarly held that, without evidence that race was at least a factor in the termination,
Daugherty could not succeed on his discrimination claim under a mixed-motive analysis.
The court did not expressly address Daugherty’s hostile-work-environment claim.
Prior to trial on the retaliation claim, the City filed a motion in limine to exclude
testimony from Griffin regarding the discharges of three other city employees who
Griffin contended also engaged in protected conduct. Griffin had stated in her affidavit
that three of the five other employees terminated in March 2007 had filed complaints
with the affirmative action office or charges with the Ohio Civil Rights Commission.
One of these employees—Theresa Graven—worked in the DPU, but the other
two—Marisol Iberra and Kristy Bollis—worked in other departments. The City also
sought to exclude evidence from Griffin and Morehead regarding their own terminations.
Griffin was to testify that she was retaliated against and ultimately fired as a result of
filing a report and probable-cause recommendation after investigating a race/retaliation
complaint against City officials. Morehead was to testify that Finkbeiner had told him
that he would lose his job if he continued talking to Griffin and that he was ultimately
demoted and terminated after refusing to sever ties with Griffin. The City argued that
this evidence was inadmissible under Federal Rules of Evidence 401, 403, and 404.

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The district judge postponed ruling on the motion until after hearing testimony
at trial, though he raised concerns that admitting evidence about other employees would
result in a series of mini-trials regarding the circumstances of each termination and thus
cause undue delay and confusion of the issues. The district judge explained that the
evidence regarding other employees would not be relevant without testimony or other
evidence linking the decision to fire Daugherty to the decisions to fire the other
employees, such as a common decisionmaker. The judge stated that, in order to rule on
admissibility, he would “need to know whether the same person made the decision,
and[,] . . . if the answer is yes, who is that person.” R.70 at 16 (Motion Hr’g Tr.).
Daugherty promised to present evidence that Finkbeiner was the common decisionmaker
in each termination. The hearing also contained the following exchange between the
court and counsel for the City:
MR. BYERS: Your Honor, our understanding is that unless and until
there’s a foundation laid connecting Mayor Finkbeiner personally to the
decision for the layoff of Mr. Daugherty’s job, Mr. Morehead’s
testimony will not come in; is that correct?
THE COURT: I think that’s correct.
Id. at 11.
At trial, DPU Director Williams testified that he made the decision to terminate
Daugherty after being told to eliminate some of the DPU’s administrative positions.
Both Williams and Assistant Chief of Staff David Moebius testified that lay-off
proposals were presented to Finkbeiner and his staff. Daugherty testified that Assistant
Chief of Staff Donald Moline told him that the termination decision came from
“upstairs” (which the district court assumed meant the floor where the mayor and his
staff worked) rather than from Williams.
After hearing this testimony, the district court concluded that Daugherty had not
shown a sufficient link between the various alleged retaliatory terminations to admit
evidence regarding the termination of the other employees. Specifically, the court held
that the evidence did not support Daugherty’s argument that Finkbeiner was involved
with each termination decision. Without such a link, the court granted the City’s motion

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in limine and excluded Griffin and Morehead’s testimony. The court also granted
Finkbeiner’s motion for judgment as a matter of law and dismissed him as a party.4 The
jury found in favor of the City.
Daugherty timely appealed, arguing that the district court should have denied
summary judgment on his race-discrimination claim under either a single-motive or a
mixed-motive theory and should have admitted Griffin and Morehead’s testimony as
“other acts” evidence relevant to his retaliation claim. He also contends that the district
court erred by failing to conduct a hostile-work-environment analysis and by granting
judgment as a matter of law to Finkbeiner on the retaliation claim.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary judgment. Blair v. Henry
Filters, Inc., 505 F.3d 517, 523 (6th Cir. 2007). At the summary-judgment stage, the
district court must view the evidence in the light most favorable to the non-movant and
resolve all factual disputes in his favor. Id. at 520 n.1 (citing Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). We also review de novo the grant of
a motion for judgment as a matter of law. Jackson v. FedEx Corporate Servs., Inc.,
518 F.3d 388, 391–92 (6th Cir. 2008). Judgment as a matter of law is warranted “[i]f a
party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party
on that issue.” Fed. R. Civ. P. 50(a)(1).
We generally review a district court’s evidentiary rulings for an abuse of
discretion, which occurs when the court “‘relies on clearly erroneous findings of fact,
improperly applies the law, or employs an erroneous legal standard.’” Barner v.
Pilkington N. Am., Inc., 399 F.3d 745, 748 (6th Cir. 2005) (quoting Beck v. Haik,
377 F.3d 624, 636 (6th Cir. 2004)) (alterations omitted).
4

The parties refer to the district court’s grant of a “directed verdict,” which is an outdated term.
We instead use the current terminology of “judgment as a matter of law.” See Fed R. Civ. P. 50.

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B. Race Discrimination—Single-Motive Framework
The parties dispute whether the district court applied the proper standard in
granting summary judgment to the City on Daugherty’s race-discrimination claim.
Specifically, Daugherty contends that the district court erred by requiring that he “offer
some evidence that the real reason for his termination was discrimination” in addition
to the evidence supporting his prima facie case and a showing of pretext. R.34 at 7. We
agree.
Under the familiar McDonnell Douglas burden-shifting framework for singlemotive discrimination claims, a Title VII plaintiff utilizing circumstantial evidence must
first make out a prima facie case of discrimination by showing “1) that he was a member
of a protected class; 2) that he was discharged; 3) that he was qualified for the position
held; and 4) that he was replaced by someone outside of the protected class.” Geiger v.
Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009) (citing Allen v. Highlands Hosp. Corp.,
545 F.3d 387, 394 (6th Cir. 2008)). After the plaintiff has made out a prima facie case
of discrimination, the employer must present a legitimate, nondiscriminatory reason for
the termination. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). The
burden of production then shifts back to the plaintiff to show that the employer’s
proffered nondiscriminatory reason was pretext. Id.
As described above, after finding that Daugherty had made out a prima facie case
of race discrimination5 and that Daugherty had shown that the City’s proffered reasons
for the termination may have been pretextual, the district court stated that “there is a
final hurdle for Daugherty to overcome: he must offer some evidence that the real

5

The district court did not expressly determine that Daugherty had made out a prima facie case,
holding instead that issues of fact existed as to the fourth element—whether Daugherty was replaced by
a white employee. The result is the same: summary judgment is inappropriate at the first stage of the
McDonnell Douglas analysis. We have described the district court’s role in evaluating a motion for
summary judgment on a Title VII claim as “‘determin[ing] if a plaintiff has put forth sufficient evidence
for a reasonable jury to find her to have met the prima facie requirements.’” Blair, 505 F.3d at 528 n.10
(quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)).

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reason for his termination was discrimination.” R.34 at 7.6 The district court thus
required Daugherty to introduce additional evidence beyond the evidence necessary to
support a prima facie case and a showing of pretext in order to survive summary
judgment.
In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court held that
judgment as a matter of law for the defendant in an employment-discrimination case may
be appropriate under certain circumstances even if the plaintiff has made out a prima
facie case of discrimination and has shown pretext. 530 U.S. 133, 148 (2000). In other
circumstances, however, a prima facie case and a showing of pretext can support a jury
verdict for the plaintiff. Id. at 147–48. “[B]ecause a prima facie case and sufficient
evidence to reject the employer’s explanation may permit a finding of liability, [a court]
err[s] in proceeding from the premise that a plaintiff must always introduce additional,
independent evidence of discrimination.” Id. at 149. Applying the rationale of Reeves
to the summary-judgment context, we have held that “to survive summary judgment a
plaintiff need only produce enough evidence to support a prima facie case and to rebut,
but not to disprove, the defendant’s proffered rationale.” Blair, 505 F.3d at 532.
The district court thus erred in assuming that Daugherty had to produce
additional evidence of discrimination in order to survive summary judgment. Summary
judgment for the defendant may be appropriate even after the plaintiff has presented
evidence that the defendant’s proffered reason for the termination was false “if the
record conclusively revealed some other, nondiscriminatory reason for the employer’s
decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s
reason was untrue and there was abundant and uncontroverted independent evidence that

6

This statement was not made in the context of the district court’s discussion of the prima facie
case and thus does not appear to be a reference to the requirement that, in reduction-of-force cases, a
plaintiff must present “additional direct, circumstantial, or statistical evidence tending to indicate that the
employer singled out the plaintiff for discharge for impermissible reasons” as part of his prima facie case.
Barnes v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). Instead, the district court described its
requirement of “evidence that the real reason for his termination was discrimination” as a “final hurdle”
after the prima facie case and pretext stages. The City thus mischaracterizes the district court’s opinion
in its appellate brief by describing the opinion as holding that Daugherty failed to make out a prima facie
case under Barnes. See Appellee Br. at 18–20. At oral argument, the City correctly noted that the district
court held that Daugherty had made out a prima facie case of discrimination.

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no discrimination had occurred.” Reeves, 530 U.S. at 148. The district court did not
consider any of these factors, but instead, contrary to Reeves, “proceed[ed] from the
premise that a plaintiff must always introduce additional, independent evidence of
discrimination” after showing pretext. Id. at 149.
Virts v. Consolidated Freightways Corp. of Delaware, 285 F.3d 508 (6th Cir.
2002), the case that the district court cited for the proposition that a plaintiff “must offer
some evidence that the real reason for his termination was discrimination,” is not to the
contrary. Indeed, Virts is not particularly relevant, because we did not need to decide
in that case whether the plaintiff had sufficient evidence to survive summary judgment;
his Title VII claim was properly dismissed because he had already been made whole
following a successful grievance proceeding. See id. at 522. We observed in passing
that “‘[a] reason cannot be proved to be a pretext for discrimination unless it is shown
both that the reason was false, and that discrimination was the real reason,’” id. at 521
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)), a quote from the
Supreme Court’s opinion in St. Mary’s Honor Center v. Hicks. The question in Hicks
was whether a showing of pretext “mandates a finding for the plaintiff,” 509 U.S. at 504,
which is a different question from what a plaintiff has to show to survive summary
judgment.
The ultimate question of fact in a Title VII race-discrimination case is, of course,
whether the defendant discriminated against the plaintiff on the basis of race. Racial
animus is not the only inference that can be drawn from evidence that the proffered
reason for an adverse employment action was pretext. Evidence that the employer’s
proffered reason for the termination was not the actual reason thus does not mandate a
finding for the employee, Hicks, 509 U.S. at 511, but is enough to survive summary
judgment, see Blair, 505 F.3d at 532. The jury can decide whether racial animus was
the actual reason for Daugherty’s termination.

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C. Race Discrimination—Mixed-Motive Framework
Alternatively, the district court erred in granting summary judgment on
Daugherty’s race-discrimination claim because Daugherty has also presented sufficient
evidence to proceed under a mixed-motive theory. See 42 U.S.C. § 2000e-2(m).7
To defeat summary judgment on a discrimination claim under a mixed-motive
analysis, the plaintiff must “produce evidence sufficient to convince a jury that: (1) the
defendant took an adverse employment action against the plaintiff; and (2) race, color,
religion, sex, or national origin was a motivating factor for the defendant’s adverse
employment action.” White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir.
2008) (internal quotation marks omitted). The evidence of discrimination can be direct
or circumstantial. Id. at 398 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 92
(2003)). Moreover, the burden of producing such evidence “is not onerous and should
preclude sending the case to the jury only where the record is devoid of evidence that
could reasonably be construed to support the plaintiff’s claim.” Id. at 400 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
Daugherty contends that the evidence he presented of a discriminatory
atmosphere in the workplace is sufficient evidence that race was at least a factor in his
termination. In particular, Daugherty points to the evidence of Finkbeiner’s numerous
racially insensitive statements. These statements are sufficient evidence of racial animus
only if they have some connection to the decision to terminate Daugherty. See Blair,
505 F.3d at 525. The fact that the statements do not specifically mention Daugherty
7

Although the City challenged whether Daugherty’s claim should be analyzed under a mixedmotive framework before the district court, it did not do so in its appellate brief and has thus waived the
issue. See, e.g., United States v. Archibald, 589 F.3d 289, 298 n.7 (6th Cir. 2009) (“[I]ssues not raised in
appellate briefs are deemed waived.” (internal quotation marks omitted)). The fact that the City raised the
issue at oral argument does not change this result. See Geiger, 579 F.3d at 621 n.3 (treating as “likely
waived” an issue raised for the first time in appellate oral argument).
We note that single-motive and mixed-motive theories are not distinct claims, but rather different
ways of analyzing the same claim. Even though we determine that Daugherty’s race-discrimination claim
survives summary judgment under either theory, therefore, “[a]t some point in the proceedings, of course,
the District Court must decide whether [the] case involves mixed motives” or a single motive. Price
Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12 (1989) (plurality opinion). This decision may not always
occur before the summary-judgment stage, because the nature of an employment-discrimination case “‘will
often emerge after discovery or even at trial.’” Harris v. Giant Eagle, Inc., 133 F. App’x 288, 296 n.4
(6th Cir. 2005) (unpublished opinion) (quoting Costa v. Desert Palace, Inc., 299 F.3d 838, 856 n.7
(9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003)).

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means only that they are not direct evidence of discrimination; they could still be
circumstantial evidence of discrimination. See id. at 525–26. Indeed, we have held that
“[c]ircumstantial evidence establishing the existence of a discriminatory atmosphere at
the defendant’s workplace in turn may serve as circumstantial evidence of individualized
discrimination directed at the plaintiff.” Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 356 (6th Cir. 1998). In determining whether discriminatory comments are
circumstantial evidence of discrimination in a particular case, we consider factors such
as the identity of the speaker, the nature and substance of the comments, and the
temporal proximity of the comments to the challenged decision. See id. at 354–57.8
Generally, discriminatory comments can qualify as evidence that a particular
decision was discriminatory if the speaker was “in a position to influence the alleged
decision.” Id. at 355. The parties dispute what direct role Finkbeiner had in the decision
to terminate Daugherty, with the City contending that Williams was the sole
decisionmaker. As the mayor, however, Finkbeiner “was in a position to shape the
attitudes, policies, and decisions of the division’s managers, including [Williams],” id.,
just as “‘[w]hen a major company executive speaks, everybody listens in the corporate
hierarchy,’” id. (quoting Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,
546 (3d Cir. 1992)). Moreover, Finkbeiner admitted in his deposition that he signs off
on all termination decisions, including Daugherty’s:
Q: Did you have discussions with anybody about the lay off, the
decision to lay off Mr. Daugherty?
A: [Finkbeiner] All lay offs, eventually the names—there aren’t that
many in total, we’re not talking about hundreds of people, I think
there might have been fifteen to eighteen, twenty-five maximum in
that round of lay offs, so ultimately I see names of the people on a list
that are being laid off so I don’t know that there was a personal
discussion about Gary’s, but I’m, I’m quite confident that a list of the
people that were being prepared to get their pink slips was put in
front of me at some point in time prior to their getting those pink
slips.
8

The district court cursorily rejected Daugherty’s argument that incidents of racial bias by City
officials were evidence that his termination was based on race, stating only that “most involve other
employees and have no connection to the decision to terminate Daugherty.” R.34 at 7. The court should
have engaged in the more thorough analysis described in Ercegovich.

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A:
Q:
A:

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Okay. So you had to approve the lay-off list?
I suppose that’s, that’s—yeah, I suppose that’s accurate.
Okay.
Sign off on the lay off list is another way of putting it.

R.23 at 78–79 (Finkbeiner Dep.).
In certain circumstances, even statements by a non-decisionmaker can be
probative evidence of discrimination, such as when the speaker holds a management
position, the statements are commonplace or made in a relevant context (such as a
meeting in which personnel decisions are made), or where other evidence of animus
exists. Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 393 (6th Cir. 2009); Ercegovich,
154 F.3d at 356–57. Finkbeiner was clearly in a management position, made some of
his comments in staff meetings attended by the Department heads, and was part of the
group tasked with producing lay-off lists.
Even if made by a relevant speaker, “‘[i]solated and ambiguous’” comments will
not support a finding of discrimination. Ercegovich, 154 F.3d at 355 (quoting Phelps
v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993)). While Finkbeiner’s comments
unambiguously relate to race, only some of them refer to race in the context of
employment. Nonetheless, other alleged comments—most notably that black employees
lack professionalism and drive—seem particularly striking evidence of bias against black
workers. Finally, Finkbeiner’s comments carry more probative weight because of the
other evidence of pretext. Id. at 356. As the district court found, Daugherty presented
evidence of pretext by showing that the City gave inconsistent reasons for his
termination and that the proffered reason of budgetary constraints may have lacked a
factual basis. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th
Cir. 1994) (identifying “the proffered reasons did not actually motivate [plaintiff’s]
discharge” and “the proffered reasons had no basis in fact” as ways of showing pretext).
Although much of the evidence does not relate directly to Daugherty’s
termination, the burden at the summary-judgment stage is not onerous. See White,
533 F.3d at 400. Combined with evidence that the City’s proffered reason for
Daugherty’s termination was pretext, this circumstantial evidence of a discriminatory

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atmosphere at the workplace is enough to raise an issue of fact as to whether race was
at least a motivating factor in the termination decision and thus to survive summary
judgment under a mixed-motive analysis.
D. Hostile Work Environment
In its opinion granting the City’s motion for summary judgment on Daugherty’s
discrimination claims, the district court failed to address Daugherty’s claim that he faced
a hostile work environment. It should do so on remand. We express no view as to the
merits of this claim, but leave it to the district court to address this claim in the first
instance.
E. Retaliation
Daugherty contends that the district court abused its discretion in excluding
proposed testimony from Griffin and Morehead regarding their own allegedly retaliatory
discharges and proposed testimony from Griffin regarding the allegedly retaliatory
discharges of three other City employees in spring 2007. This challenge requires us to
enter the unsettled evidentiary terrain of “other acts” or “me too” evidence. First,
however, we must address the City’s argument that Daugherty failed to preserve this
issue for appeal.
1. Daugherty’s Proffer
The City contends that Daugherty did not properly preserve this issue for appeal
by failing to make an adequate proffer of the excluded evidence and why it was
admissible. In order to preserve a claim of error regarding the exclusion of evidence, a
party must “inform[] the court of its substance by an offer of proof, unless the substance
was apparent from the context.” Fed. R. Evid. 103(a)(2). During the hearing on the
City’s motion in limine, Daugherty clearly informed the district court of the evidence he
sought to offer (testimony from Griffin regarding alleged retaliation against Graven and
Iberra and from Morehead regarding his own retaliatory termination) and why he
believed it was relevant (other City employees who engaged in protected conduct were
terminated around the same time as Daugherty). Daugherty also addressed these matters

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in his opposition to the City’s motion in limine, and the substance of the proposed
testimony was presented in affidavits from Griffin and Morehead. After briefing and
two hearings on the issue, the district court was clearly familiar with the substance of the
evidence and the arguments for and against its admissibility. This case is thus easily
distinguishable from cases like Barner, for example, in which the plaintiff failed to
preserve his objection when he never argued before the district court that the excluded
evidence should be admitted as a statement against interest, but instead raised the issue
for the first time on appeal. 399 F.3d at 748–49. Moreover, the City’s contention that
“there was no proffer of evidence that would connect [other employees’] complaints . . .
to the respective decision-makers on the respective lay-offs,” Appellee Br. at 17, goes
to the merits of the admissibility issue, not the adequacy of the proffer.
The one exception is testimony from Griffin regarding her own termination.
Although Daugherty argues on appeal that this testimony was admissible, he did not
address the substance of this evidence at the motion hearing and, in his opposition to the
City’s motion in limine, stated that he “d[id] not intend to introduce Griffin’s testimony
about her own wrongful discharge and retaliation case.” R.51 at 3. Because Daugherty
disclaimed any intent to introduce this evidence at trial, and thus did not make a proffer
as to its substance or admissibility, he cannot argue on appeal that the district court erred
in excluding it, unless he can show that the exclusion was plain error. See Fed. R. Evid.
103(e).
Because Daugherty failed to make an adequate proffer of this evidence, we
review its exclusion for plain error. “To show plain error, a defendant must establish the
following: ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” United
States v. Arnold, 486 F.3d 177, 194 (6th Cir. 2007) (en banc) (quoting United States v.
Cotton, 535 U.S. 625, 631 (2002)). If these three conditions are satisfied, we can address
the error if we find, in our discretion, that “‘the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” Id. (quoting Cotton, 535 U.S.
at 631). As described below, the exclusion was error, because it was based on the wrong
standard. In light of contrary Supreme Court precedent, the error was plain. However,

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we cannot conclude that the exclusion of evidence regarding Griffin’s termination
affected Daugherty’s substantial rights or otherwise seriously affected the fairness of the
trial when Daugherty himself stated in his opposition to the City’s motion in limine that
he did not intend to introduce such evidence and conceded that Griffin’s case “does not
have direct relevance to Daugherty’s claims.” R.51 at 3.
2. “Other Acts” Evidence
In the employment-discrimination-law context, “other acts” evidence consists of
testimony or other evidence of discrimination by the employer against non-party
employees. The Supreme Court has instructed lower courts not to apply a per se rule
excluding “other acts” testimony from non-parties alleging discrimination by supervisors
who did not play a role in the challenged decision. Sprint/United Mgmt. Co. v.
Mendelsohn (“Sprint”), 552 U.S. 379, 380–81, 387 (2008). Whether such evidence is
relevant is a case-by-case determination that “depends on many factors, including how
closely related the evidence is to the plaintiff’s circumstances and theory of the case.”
Id. at 388.9
Here, the district court improperly focused exclusively on whether the same
person made each allegedly retaliatory personnel decision. The court correctly noted
that “other acts” evidence “must be logically or reasonably tied to the decision made
with respect to [Daugherty],” R.70 at 12, but looked only to the existence of a common
decisionmaker as the necessary tie. As described above, the court premised its
admissibility ruling on “whether the same person made the decision” to fire Daugherty
as made the decision to fire the other employees, id. at 16, and, specifically, “whether
there’s . . . any evidence that Finkbeiner played a role in the decision to terminate Mr.
Daugherty,” id. at 8. After determining that Daugherty had failed to connect each

9

The City relies heavily on our decision in Schrand v. Federal Pacific Electric Co., 851 F.2d 152,
156 (6th Cir. 1988), in which we deemed inadmissible under Federal Rules of Evidence 401 and 403
testimony from two non-party former employees who worked in different divisions, in different cities, and
for different supervisors than the plaintiff; the two employees alleged that they were both told they were
fired because of their age. Schrand was decided well before Sprint, of course. Even prior to Sprint, we
distinguished Schrand when the other discriminatory conduct occurred in closer proximity to the plaintiff.
See Robinson v. Runyon, 149 F.3d 507, 514 (6th Cir. 1998); McCabe v. Champion Int’l Corp., No. 894021, 1990 WL 156104, at *5–6, *9 (6th Cir. Oct. 18, 1990) (unpublished opinion).

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decision to Finkbeiner, the court announced that it would exclude Griffin and
Morehead’s “other acts” testimony.
Whether the same actors are involved in each decision is a factor, but Sprint
makes clear that it cannot be the only factor in the decision whether to admit “other acts”
evidence. Notably, the testimony in Sprint involved supervisors “who played no role in
the adverse employment decision challenged by the plaintiff.” 552 U.S. at 380. Here,
the district court did not consider other ways in which the excluded evidence could be
“related . . . to the plaintiff’s circumstances and theory of the case,” id. at 388, such as
temporal and geographical proximity, whether the various decisionmakers knew of the
other decisions, whether the employees were similarly situated in relevant respects, or
the nature of each employee’s allegations of retaliation. Cf. Bennett v. Nucor Corp.,
656 F.3d 802, 809–10 (8th Cir. 2011) (approving the district court’s approach of
evaluating whether each incident involved “the same place, the same time, the same
decision makers, or whether it’s such that the people who are making the decisions
reasonably should have known about the hostile environment”) (internal quotation marks
omitted), cert. denied, 132 S. Ct. 1807 (2012); Elion v. Jackson, 544 F. Supp. 2d 1, 8
(D.D.C. 2008) (listing as factors “whether such past discriminatory behavior by the
employer is close in time to the events at issue in the case, whether the same
decisionmakers were involved, whether the witness and the plaintiff were treated in a
similar manner, and whether the witness and the plaintiff were otherwise similarly
situated”).
The district court’s error in excluding the evidence was not harmless. See Fed.
R. Evid. 103(a) (a party challenging the exclusion of evidence must show that “the error
affects a substantial right”). When determining if an evidentiary error is harmless, we
have held that, “if ‘one cannot say, with fair assurance, . . . that the judgment was not
substantially swayed by the error, it is impossible to conclude that substantial rights were
not affected.’” Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409–10
(6th Cir. 2006) (quoting DePew v. Anderson, 311 F.3d 742, 751 (6th Cir. 2002)). Like
most employment-discrimination plaintiffs, Daugherty relied largely on circumstantial

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evidence to present his case of retaliation to the jury. In such cases, “each piece of
evidence served to complete part of the puzzle of th[e] case” and the absence of any one
piece may have influenced the jury verdict. Robinson, 149 F.3d at 515; see also Estes
v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988) (“The effects of blanket
evidentiary exclusions can be especially damaging in employment discrimination cases
. . . .”).

“Other acts” evidence can provide probative context to an individual

employment decision, especially when, as here, the circumstances of that decision are
already somewhat suspicious due to evidence of pretext that was sufficient to survive
summary judgment. Under a proper analysis, the district court may have admitted the
evidence regarding Morehead, Iberra, and Graven. This evidence may not have swayed
the jury if it had been admitted, but we “cannot say, with fair assurance” that it could not
possibly have done so. Mike’s Train House, 472 F.3d at 409.
On remand, the district court should consider the other factors listed above10 and
conduct a more complete analysis of the relevance of Daugherty’s “other acts” evidence.
Similarly, the court should consider the admissibility of evidence regarding each
employee individually rather than issue a blanket ruling as to all proposed “other acts”
evidence. Because, as noted above, Daugherty did not properly preserve for appeal his
objection to the exclusion of Griffin’s testimony regarding her own termination, the
district court need not address this evidence on remand.
If the district court determines on remand that the evidence is relevant under Rule
401, the court’s Rule 403 and 404 analyses should also proceed on an individual basis
as to the evidence related to each “me too” employee. For now, we make two
observations. First, the district court’s concern about mini-trials is legitimate, but would
tend to exclude any “other acts” evidence, regardless of how closely related it is to the
plaintiff’s circumstances. Because “other acts” evidence can be admissible, this concern
cannot, by itself, serve as blanket grounds for exclusion. Second, Rule 404 does not
mandate exclusion of all such evidence. Although Sprint addressed only Rules 401 and
403, the Court’s admonition against per se rules in this context logically extends to Rule
10

We do not intend this list of factors to be exhaustive.

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Moreover, other courts have held that “other acts” evidence in

employment-discrimination cases goes to the employer’s motive or intent to
discriminate, which is a permissible use of such evidence under Rule 404(b). See
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008); Nuskey v.
Hochberg, 723 F. Supp. 2d 229, 233 n.2 (D.D.C. 2010).
In closing, we note that we intimate no view on the ultimate admissibility of
Daugherty’s “other acts” evidence, but leave that determination to the district court,
conducted under the proper analysis.
F. Judgment As a Matter of Law
Finally, Daugherty challenges the district court’s grant of judgment as a matter
of law to Finkbeiner under Federal Rule of Civil Procedure 50. As the basis for its
decision, the court cited a lack of evidence connecting Finkbeiner to the decision to
terminate Daugherty.
The propriety of granting judgment as a matter of law depends on whether, based
on the evidence, a reasonable jury could find in favor of the non-movant. Fed. R. Civ.
P. 50(a)(1). Because we are remanding for a trial on Daugherty’s race-discrimination
claim and for reevaluation under the proper standard of whether Daugherty’s “other
acts” evidence should be admitted, the best course is also to reverse the judgment as a
matter of law and the dismissal of Finkbeiner as a party. The district court granted
judgment as a matter of law only as to Daugherty’s retaliation claim, because the court
had earlier (and erroneously) dismissed Daugherty’s race-discrimination claim. In
addition, the admission of additional evidence may affect the issue of whether a jury
could find Finkbeiner individually liable and thus whether judgment as a matter of law
in his favor is warranted.
One final matter warrants discussion. Neither the parties nor the district court
addressed the issue of what a jury must find in order to hold Finkbeiner individually
liable. An individual cannot be held personally liable for violations of Title VII.
Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997). By contrast, individual

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managers and supervisors can be held jointly or severally liable with their employer for
their own violations of Ohio Revised Code § 4112, Ohio’s anti-discrimination law.
Genaro v. Cent. Transp., Inc., 703 N.E.2d 782, 785 (Ohio 1999). Accordingly,
Finkbeiner’s individual-capacity liability can stem only from violations of Ohio law.11
Neither party addresses the fact that state law governs this issue. In their
appellate briefs and before the district court, the parties dispute whether evidence exists
that tends to show that Finkbeiner made the decision to terminate Daugherty. However,
neither party cites any Ohio case or otherwise explains whether the federal standards are
the same as the standards for personal liability under Ohio Revised Code § 4112. To
interpret Ohio law, federal courts must look to decisions of the Ohio Supreme Court;
when that court has not ruled on an issue, the federal court “must predict how the court
would rule by looking to all the available data.” Allstate Ins. Co. v. Thrifty Rent-A-Car
Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001) (citing Prestige Cas. Co. v. Mich. Mut. Ins.
Co., 99 F.3d 1340, 1348 (6th Cir. 1996)). The district court did not engage in this
predictive analysis.
Even if we were to agree with the district court that Daugherty has presented no
evidence from which a reasonable jury could conclude that Finkbeiner made the decision
to terminate Daugherty, judgment as a matter of law for Finkbeiner was inappropriate
without a finding that such lack of evidence would defeat an individual-capacity
retaliation claim under Ohio law.
III. CONCLUSION
By requiring Daugherty to present more evidence than Supreme Court or Sixth
Circuit caselaw requires in order to survive summary judgment under the McDonnell
Douglas framework, the district court erred in granting summary judgment to the City
on Daugherty’s race-discrimination claim. Alternatively, the district court improperly
granted summary judgment on that claim under a mixed-motive framework by failing
11

Daugherty also brings suit against Finkbeiner in his official capacity. Whether Finkbeiner is
liable in his official capacity is essentially inconsequential, as it would result only in vicarious liability for
the City, and Daugherty also alleges that the City is directly liable.

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to analyze adequately Daugherty’s evidence of discriminatory comments by Mayor
Finkbeiner. On remand, the district court should additionally conduct a hostile-workenvironment analysis. The district court also abused its discretion in excluding
testimony regarding other acts of alleged retaliation by the City when the court based its
decision solely on whether the same person made each termination decision. Therefore,
we REVERSE the grant of summary judgment on Daugherty’s race-discrimination claim
and REVERSE the grant of the City’s motion in limine. In light of these holdings, we
also REVERSE the district court’s grant of judgment as a matter of law to Finkbeiner.
We remand for further proceedings consistent with this opinion.