Trey Mansfield v. City of Murfreesboro

Filing

OPINION filed : AFFIRMED, decision not for publication. Danny J. Boggs, Authoring Circuit Judge; Karen Nelson Moore, Circuit Judge, separate dissenting opinion and David W. McKeague, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0459n.06
Case No. 16-6613
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TREY MANSFIELD,
Plaintiff-Appellant,
v.
CITY OF MURFREESBORO,
Defendant-Appellee.

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FILED
Aug 07, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

OPINION
Before: BOGGS, MOORE, and McKEAGUE, Circuit Judges.
BOGGS, Circuit Judge. Trey Mansfield, a police officer and K-9 handler for the
Murfreesboro Police Department, sued the City of Murfreesboro for retaliation under the Fair
Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964. His claim: when a
new Sergeant position was announced for the K-9 unit and another officer was selected for the
post, Mansfield was denied the promotion as retaliation for his previous involvement in proposed
litigation to collect unpaid wages for mealtime breaks, for his criticism of changes to shift
scheduling, and for his support of another officer who had alleged sex discrimination by Major
David Hudgens. More generally, Mansfield alleges that Major Hudgens was a “monster” who
would, in the presence of other officers, say things like, “I think I’ll fuck with Trey Mansfield
today,” or—in response to Mansfield’s assertion that the new schedule would make childcare
difficult—“I guess your precious little princess will have to fucking deal with it.”

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The district court granted summary judgment for the City, holding that Mansfield had
neither direct evidence of retaliation nor circumstantial evidence that would support an inference
of retaliation under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). The
officer chosen for the new Sergeant position was the highest-scoring applicant according to a
numeric ranking system employed as part of the City’s evaluation guidelines, and the officer
chosen was already a Sergeant in another unit. Mansfield, on the other hand, was the fourthranked applicant out of eight. And Major Hudgens had recused himself from the promotion
board responsible for selecting the new Sergeant. Thus, while Mansfield may well have deepseated and genuine disputes with Major Hudgens, Mansfield cannot show a genuine dispute of
material fact to overcome the City’s motion for summary judgment.
We therefore affirm the judgment of the district court.
I
As a threshold matter, we consider whether we have jurisdiction. Mansfield’s cause of
action was consolidated with that of another officer, Gregg Brown, and pretrial litigation in
Brown’s case remains ongoing, raising the question whether the summary-judgment order in
Mansfield’s case is a “final” decision from which Mansfield may now appeal.

See

28 U.S.C. § 1291. We have held that when a court consolidates two cases on its own, unlike
when plaintiffs amend their pleadings to join actions that were initially brought separately, the
consolidated cases “remain separate actions,” thus allowing appeal from a final judgment in one
action even if litigation in the other remains ongoing. Beil v. Lakewood Eng’g & Mfg. Co.,
15 F.3d 546, 551 (6th Cir. 1994) (“[A] case which is disposed on summary judgment is
appealable pursuant to 28 U.S.C. § 1291 despite the fact that the case with which it is
consolidated has not been disposed.”); see also Klyce v. Ramirez, 852 F.2d 568, 1988 WL 74155,

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at *3 (6th Cir. 1988) (unpublished table decision) (dismissing appeal where plaintiff’s amended
complaint consolidated claims previously brought in five separate complaints and where order
appealed from had only dismissed claims against some of the defendants named in the amended
complaint).

Here, the district court consolidated Mansfield’s case with Brown’s over the

opposition of both plaintiffs. Thus, under Beil, the two cases remain separate actions, and our
court has appellate jurisdiction to review the summary-judgment order in Mansfield’s case.
II
Mansfield has worked for the City since 1999 and has been a K-9 officer since 2008. In
2011, Mansfield signed a petition to opt into a proposed collective-action lawsuit against the City
that would have alleged violations of the FLSA because the City was allegedly improperly
deducting time for mealtime breaks from officers’ paychecks. In 2012, the City agreed to
change its pay policies, avoiding litigation. Major Hudgens was aware of the policy changes,
and the City agrees with Mansfield that Mansfield’s participation in the proposed action was
protected activity under FLSA.
Also in 2011, Mansfield met with Major Hudgens to discuss the proposed elimination of
the “Day-Flex Shift” (10:45 a.m. to 7:00 p.m.), which Mansfield had worked, and reassigning
him to the evening shift (1:45 p.m. to 10:00 p.m.). Major Hudgens and others had decided to
reduce the number of shifts from five to three. “At some point during this meeting,” the City
concedes, “Major Hudgens lost his temper and began directing profanity and other
unprofessional statements at Officer Mansfield. Major Hudgens became so angry that Captain
Watkins had to intervene and end the meeting.” Appellee’s Br. 6. Mansfield alleges, and the
City does not seriously dispute, that from this point forward, Major Hudgens regularly behaved
unprofessionally towards Mansfield.

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In January 2012, Mansfield participated in an internal investigation of an allegation that
Major Hudgens had discriminated against another officer based on her sex, for example by
stating that female officers should not join the City’s SWAT team. The investigators found that
Major Hudgens had made inappropriate statements but had not engaged in unlawful harassment
or discrimination. Major Hudgens was admonished not to retaliate against individuals involved
in the investigation. The investigation ended in March 2012.
In August 2012, Mansfield filed a formal retaliation complaint with the City’s humanresources department, alleging that Major Hudgens was treating Mansfield in a retaliatory
manner on account of Mansfield’s participation in the proposed FLSA litigation and the sexdiscrimination investigation.

The City again determined that Major Hudgens had made

inappropriate comments but had not engaged in unlawful retaliation. Mansfield’s complaint
about Major Hudgens included the elimination of the day-flex shift, but the City’s investigation
noted both that the schedule change took effect on July 25, 2011, and that Mansfield’s meeting
with Major Hudgens about the schedule change was on July 27, 2011—before the City learned
of the proposed FLSA action (in August 2011) and before Mansfield’s involvement in the sexdiscrimination investigation (in early 2012).
In August 2013, the City created a new Sergeant position in the K-9 unit at Major
Hudgens’s request. Police Chief Glenn Chrisman issued a memorandum announcing that the
City would be accepting applications for the position, that the successful candidate would be
required to complete K-9 handling training, and that the selection process would be governed by
a policy titled “MPD General Order No. 224—Promotions.”1 Whereas Mansfield seizes upon

1

There is some disagreement about a provision in the announcement that stated that the selected applicant
“will supervise the K-9 unit in addition to being a patrol, tracking, or canine handler.” The district court construed
this to mean that the applicant would not necessarily need to be a canine handler. The parties appear to agree,
however, that “patrol,” “tracking,” and “canine” are each distinct types of K-9 handlers. Appellant’s Br. 37;

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the announcement as evidence that only an officer who was not already a Sergeant should have
been given the new position (otherwise, it would not be a “promotion”), the City argues, and we
agree, that announcing a “promotion” does not prevent selecting an applicant who is transferring
laterally, and that General Order No. 224 governs both promotions and lateral transfers anyhow.
Mansfield was one of eight applicants for the position. Five of the applicants, including
Mansfield, were K-9 officers. The applicants included Sergeant Mark Wood, Officer Ryan
Holobaugh (who had also lodged internal complaints against Major Hudgens relating to the
unpaid mealtime breaks), Officer Angela Alexander, Officer Gregg Brown, and three others
apart from Mansfield. Major Hudgens was not on the promotion board, although Major Hudgens
(allegedly on account of his extensive knowledge of K-9 matters) submitted six proposed
interview questions to Chief Chrisman for approval, and five of those questions were forwarded
to the interviewer board to be asked of the applicants.
In the interview round of the selection process, in October 2013, a seven-member board
interviewed the eight applicants. Two of the seven members ranked Sergeant Wood highest; two
ranked Officer Alexander highest; two ranked Officer Holobaugh highest; one ranked Mansfield
and Officer Brown as tied for first. The applicants then had point scores calculated: the top four
candidates were Sergeant Wood (65.71 out of 100), Alexander (62.17), Holobaugh (62.14), and
Mansfield (61.46). Eight days after the initial interview, Chief Chrisman and two other chiefs
interviewed all eight candidates as well. Sergeant Wood and Officer Holobaugh were selected as
finalists. Sergeant Wood was then chosen for the position.
Mansfield alleges that the City’s interview process was a “sham”: Major Hudgens and
Captain Alan Smith “solicited” Sergeant Wood’s application and promised him that if he got the
Appellee’s Br. 46 (“a patrol, tracking, or [narcotic/explosive detection] canine handler”). The district court’s
misunderstanding of the phrase is immaterial, however, because the announcement required the successful applicant
to undergo training only after selection—not already to possess the required dog-handling skills.

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job, he would get a new car and his choice of dog. Appellant’s Br. 41, 42 n.9. The City
contends that Sergeant Wood was chosen because of his leadership experience and other skills,
and that even though Sergeant Wood did not have K-9 experience (and Mansfield was the senior
K-9 handler), Sergeant Wood was the more qualified candidate for the position.
III
For the reasons that follow, we affirm the judgment of the district court.
A
We review the district court’s grant of summary judgment de novo.

See Dodd v.

Donahoe, 715 F.3d 151, 155 (6th Cir. 2013). Summary judgment is appropriate when “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We
draw all reasonable inferences in favor of Mansfield. See King v. Harwood, 852 F.3d 568, 578
(6th Cir. 2017). If, on “the record taken as a whole,” no rational trier of fact could find for
Mansfield, then there is no genuine issue for trial, and the City is entitled to summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B
Mansfield’s Title VII and FLSA retaliation claims are governed by the same framework,
within which Mansfield may prevail upon a showing of either direct evidence of retaliation or
circumstantial evidence of retaliation. See Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th
Cir. 2014) (Title VII retaliation); Adair v. Charter Cty. of Wayne, 452 F.3d 482, 489 (6th Cir.
2006) (FLSA retaliation); Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997) (“[A]
plaintiff may establish discrimination either by introducing direct evidence of discrimination or

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by proving inferential and circumstantial evidence which would support an inference of
discrimination.”).
C
Mansfield Does Not Have Direct Evidence of Retaliation
“[D]irect evidence is that evidence which, if believed, requires the conclusion that
unlawful [behavior] was at least a motivating factor in the employer’s actions.” DiCarlo v.
Potter, 358 F.3d 408, 415 (6th Cir. 2004); see Johnson v. University of Cincinnati, 215 F.3d 561,
577 n.7 (6th Cir. 2000) (finding direct evidence of discrimination where a university president
allegedly said, “[w]e already have two black vice presidents. I can’t bring in a black provost”);
Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (finding no direct evidence of
discrimination where a manager expressed “concern about the potentially detrimental effect on
business of having an African–American comanager”). For Mansfield to prevail under a theory
of direct evidence here, then, Mansfield would have to show both “blatant remarks” revealing the
City’s retaliatory intent, Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013),
and that the retaliatory intent was a motivating factor in the City’s decision not to promote
Mansfield to Sergeant.2
Mansfield points to Chief Chrisman’s statement that Mansfield had “been openly, vocally
critical of the supervision, management, and administration of the K-9 unit and the police
department” as direct evidence that Mansfield was denied the promotion because of his
involvement in the FLSA matter and the sex-discrimination investigation. The district court
rightly held, however, that Chief Chrisman’s statement, even if believed to be the reason for
denying Mansfield the promotion, does not directly prove that Mansfield’s protected activities
2

“When proving a claim through the use of direct evidence, a plaintiff does not have to proceed under the
McDonnell Douglas burden-shifting framework that applies to circumstantial evidence cases.” DiCarlo, 358 F.3d at
415.

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with regard to the FLSA matter and the internal investigation were the reason for denying
Mansfield the promotion—that would require an inferential step, and so Mansfield cannot
prevail on a theory of direct evidence.
D
Mansfield Does Not Have Circumstantial Evidence of Retaliation
In the absence of direct evidence, Mansfield may prove his claims under the burdenshifting framework of McDonnell Douglas, 411 U.S. at 802–04. “Under McDonnell Douglas,
Plaintiff bears the initial burden to establish a prima facie case of retaliation.” Laster, 746 F.3d
at 730. “If [Plaintiff] succeeds in making out the elements of a prima facie case of retaliation,
the burden of production shifts [to the employer] to articulate a legitimate, non-retaliatory reason
for the termination[]. If the [employer] satisfies its burden of production, the burden shifts back
to [Plaintiff] to show that the reason was a pretext for retaliation. Although the burden of
production shifts between the parties, the [Plaintiff] bear[s] the burden of persuasion through the
process.’” Evans v. Prof’l Transp., Inc., 614 F. App’x 297, 300 (6th Cir. 2015) (emphasis
added) (citation omitted).

Thus, stage one of the McDonnell Douglas analysis requires

Mansfield to make out a prima facie case of retaliation; if, at stage two, the City can assert
legitimate reasons for choosing Sergeant Wood over Mansfield, then, at stage three, Mansfield
would have to show those reasons to be pretextual to prevail.
“To establish a prima facie case of retaliation under Title VII, Plaintiff must demonstrate
that: (1) he engaged in activity protected by Title VII; (2) his exercise of such protected activity
was known by the defendant; (3) thereafter, the defendant took an action that was materially
adverse to the plaintiff; and (4) a causal connection existed between the protected activity and
the materially adverse action.” Laster, 746 F.3d at 730 (citations omitted). “To establish a prima

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facie case of retaliation” under FLSA, similarly, “an employee must prove that (1) he or she
engaged in a protected activity under the FLSA; (2) his or her exercise of this right was known
by the employer; (3) thereafter, the employer took an employment action adverse to her; and
(4) there was a causal connection between the protected activity and the adverse employment
action.” Adair, 452 F.3d at 489.
Only the fourth element of the prima facie retaliation claims is disputed by the parties:
causation. “In order to establish a causal connection between the protected conduct and the
adverse action, a plaintiff must produce enough evidence of a retaliatory motive such that a
reasonable juror could conclude that the adverse action would not have occurred but for his
engagement in protected activity.” Russell v. Kloeckner Metals Corp., No. 3-13-0316, 2014 WL
1515527, at *3 (M.D. Tenn. Apr. 18, 2014) (citing Dye v. Office of Racing Comm’n, 702 F.3d
286, 205 (6th Cir. 2012)); see Univ. of Tex. Sw. Med. Center v. Nassar, 133 S. Ct. 2517, 2532–33
(2013). But even if Mansfield can demonstrate that there is a genuine issue of material fact as to
causation, he cannot prevail unless he can also demonstrate that there is a genuine issue of
material fact as to whether the City’s reasons for choosing Sergeant Wood were pretextual.
Causation
As to causation, the district court noted that the K-9 Sergeant selection process did not
begin until over a year after Mansfield had brought his formal complaint against Major Hudgens
for Major Hudgens’s unprofessional behavior, making it unlikely that Mansfield could show
“temporal proximity” between Mansfield’s protected conduct and the denial of Mansfield’s
application for the Sergeant position. See Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,
550 (6th Cir. 2008). Mansfield has, however, cited a laundry list of “facts” (many of which are

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more conclusory than factual) that, Mansfield argues, show that his being denied the promotion
was caused by retaliation. This list, as recited in Mansfield’s brief, includes, for example:
-Chief Chrisman’s admission, under oath, that the City did not promote Officer
Mansfield because he was outspoken against the administration.
-The City’s advertisement of the K9 Sergeant position as a promotion, and not a
lateral transfer.
-Major Hudgens’s initial justification for the new position, to have a
knowledgeable person to oversee the unit, and the highly technical nature of any
K9 officer position.
-Officer Mansfield’s involvement and leadership within the K9 unit prior to
creation of the K9 Sergeant position, and the description of him by his former
supervisor, Captain Watkins, as the “acting sergeant” of the unit.
[. . .]
-Major Hudgens’s stark change in attitude towards the K9 unit and Officer
Mansfield and his treatment of Officer Mansfield with the utmost disrespect
within days of learning of the proposed meal break matter.
-Major Hudgens’s memorandum complaining about salary compression issues
caused by the new meal break policy, highlighting the fact that lieutenants now
make more money than higher-ranked captains.
-Chief Chrisman’s opposition to the policy change, statement that he would not
pay an officer to eat, and repeated reminders to Sergeant Campbell about the
policy’s financial impact on the City, causing Sergeant Campbell to lodge a
complaint with the City Manager.
[. . .]
-Crude statements made by Major Hudgens to Officer Mansfield, such as “the K9 field is dead in the water”; “the K-9 field won’t move forward until I’m fucking
ready for it to and that’s going to be a fucking long time;” and that he wanted to
remove the letter “k” and the number “9” from his vocabulary.
Appellant’s Br. 30–33.3
3

Mansfield has offered this list of facts in support of the proposition that “[a] reasonable jury could
determine from this proof that Officer Mansfield was denied the K9 Sergeant position because of his protected
activity”—i.e., in support of his causation argument. Appellant’s Br. 33 (emphasis added). Some of the omitted
items in this list are more clearly relevant to Mansfield’s pretext argument, so we will address them in the context of
that argument, infra.

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Given that “the burden of establishing a prima facie case in a retaliation action is not
onerous, but one easily met,” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000), we
will assume without deciding that Mansfield has met this burden, and we will proceed to the
second and third stages of the McDonnell Douglas framework.
Pretext
The district court held that at the second stage of McDonnell Douglas, the City had
articulated a legitimate reason to give Sergeant Wood the position, and that at the third stage,
Mansfield could not meet his burden of demonstrating that the City’s reasons for choosing Wood
(inter alia, his leadership experience) were pretextual. Mansfield v. City of Murfreesboro, Tenn.,
No. 3:14-cv-01396, 2016 WL 5724208, at *4 (M.D. Tenn. Sept. 30, 2016). We agree.
Mansfield believes that Sergeant Wood’s status as a Sergeant before applying for the K-9
position actually helps Mansfield make his case (indeed, Mansfield argues that the “most glaring
proof” of pretext is that the K-9 position “was presented as a promotion, not a lateral transfer,”
Appellant’s Br. 40). Mansfield also points to the fact that when the City created other Sergeant
positions, it promoted officers from within the unit. Appellant’s Br. 13. The City presented
competent evidence that Sergeant Wood was selected for his leadership experience, however,
and Mansfield has not presented any authority to support the proposition that offering a new
position (even one styled as a “promotion”) to a candidate seeking a lateral transfer is evidence
of pretext for denying the position to other candidates.
Mansfield further argues that Major Hudgens “hand-picked” Sergeant Wood for the job,
Appellant’s Br. 11, but that would not—even if true—cut against the City’s legitimate reasons
for choosing Sergeant Wood.4

4

The City contends that any of the testimony that Mansfield alleges would prove the existence of this
promise is inadmissible hearsay (the testimony is from another officer recounting what Sergeant Wood heard Major

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Mansfield further notes that another officer heard an assistant chief say to another chief,
“All we have to do is come up with a good reason why we promoted Wood. Don’t worry about
it.” But the City notes that this statement (or one like it) was made only after Mansfield had filed
a claim with the EEOC, and that it in that context, it is simply a true statement made in
preparation for an EEOC mediation—it would require either speculation or more evidence from
Mansfield to establish that the assistant chief was referring to fabricating a reason as opposed to
articulating a reason why Sergeant Wood was given the job.
Finally, Mansfield cites ample evidence of Major Hudgens’s boorish behavior and
unprofessional remarks. Appellant’s Br. 30–33. And the City does not deny that Major Hudgens
exerted major influence over the police department’s day-to-day operation. But Mansfield has
provided insufficient evidence to back up his assertion that “Major Hudgens ha[d] enough power
to single-handedly decide who will be promoted,” Appellant’s Br. 35, let alone that Major
Hudgens acted on such power, for a reasonable jury to conclude from this evidence that Sergeant
Wood’s selection for the position was mere pretext for denying the position to Mansfield.
The district court thus properly granted summary judgment for the City.
IV
As we have stated before, “employers are generally ‘free to choose among qualified
candidates’” in making their employment decisions. Bender v. Hecht’s Dept. Stores, 455 F.3d
612, 626 (6th Cir. 2006) (quoting Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)). “The law
does not require employers to make perfect decisions, nor forbid them from making decisions
Hudgens tell him), and that Major Hudgens, Sergeant Wood, and Captain Smith all deny such a promise was made
anyhow. “Hearsay evidence may not be considered on summary judgment.” Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999). Our court has interpreted Fed. R. Evid.
801(d)(2)(D) broadly enough, however, to include an employee’s statements about his employer’s employment
decisions to be statements “within the scope of his employment” that are admissible as nonhearsay against the
employer. See Carter v. Univ. of Toledo, 349 F.3d 269, 275–76 (6th Cir. 2003). Accordingly, we will assume
without deciding that Mansfield’s evidence that Major Hudgens wanted Sergeant Wood to apply for the position
would be admissible and is thus properly considered on summary judgment.

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that others may disagree with.” Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996). Rather, a
rejected applicant “must show that a reasonable jury could conclude that the actual reasons
offered by the defendant were a mere pretext . . . , not that other reasonable decision-makers
might have retained the [rejected applicant].” Rowan v. Lockheed Martin Energy Sys., 360 F.3d
544, 550 (6th Cir. 2004) (affirming district court’s grant of summary judgment to employer in
age-discrimination case). Here, Mansfield has failed to present a genuine issue of material fact
as to pretext.
Were we to hold otherwise, we would implicitly be endorsing a simple method for any
employee to win at least a day in federal court if not a windfall: engage in protected labor or
other activity (vocally enough that everyone in the organization knows about it), apply for (and
fail to secure) a promotion, and sue, claiming retaliation. In the absence of direct evidence of
retaliation, the McDonnell Douglas framework provides a sufficiently wide opening for a
potential litigant to bring a retaliation claim based on circumstantial evidence of retaliation—but
to reverse the district court here and hold that Mansfield has demonstrated a fact question as to
pretext here would widen that opening into a gulf, in a way that the law does not require and that
our precedents caution against.
The district court’s summary-judgment order is AFFIRMED.

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KAREN NELSON MOORE, Circuit Judge, dissenting. When, shortly a year after he
filed a formal complaint against the Murfreesboro Police Department, senior K-9 Officer Trey
Mansfield was passed over for a promotion to Sergeant of the K-9 unit in favor of an officer with
no previous K-9 unit experience by a department Major who was known to say things like, “I
think I’ll fuck with Trey Mansfield today,” what was Mansfield to think? What is a fact-finder
to do when faced with evidence that, shortly after Mansfield filed a retaliation claim with the
EEOC, an assistant police chief was heard saying, “[a]ll we have to do is come up with a good
reason of why we promoted Wood [and not Mansfield]”? The majority seemingly answers both
questions with the same response offered by Assistant Chief Roy Fields: “Don’t worry about it.”
R. 38-5 (Campbell Dep. at 37) (Page ID #999). Because I disagree with the majority and find
unpersuasive its conclusion that “to reverse the district court here and hold that Mansfield has
demonstrated a fact question as to pretext here would” impermissibly widen the McDonnell
Douglas framework “in a way that the law does not require and that our precedents caution
against,” Maj. Op. at 13, I respectfully dissent.
I.
It is a “fundamental principle that at the summary judgment stage, reasonable inferences
should be drawn in favor of the nonmoving party.” Tolan v. Cotton, 134 S. Ct. 1861, 1868
(2014). “Summary judgment obviates the need for a trial when there is no genuine dispute of
material fact and the moving party is entitled to judgment as a matter of law.” Brown v.
Chapman, 814 F.3d 447, 464 (6th Cir. 2016) (citing Fed. R. Civ. P. 56(a)). We have previously
held that “[a] genuine dispute of material fact exists if ‘there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.’” Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). In evaluating “whether a genuine dispute of material

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fact exists, the court must pierce the pleadings and assess the proof as represented in depositions,
answers to interrogatories, admissions, and affidavits that are part of the record.” Id. It is a
bedrock principle of any summary-judgment analysis that “the court must view the facts in the
light most favorable to the non-moving party.” Id. (citing Scott v. Harris, 550 U.S. 372, 378
(2007)).
II.
Because the majority assumes without deciding that Mansfield established a prima facie
case of retaliation, the burden shifts to the City to provide a legitimate, nondiscriminatory reason
that Mansfield was not promoted. The City argues that Wood’s experience and performance
during the job-application process demonstrated that he was a more qualified applicant than
Mansfield. Thus, the burden shifts back to Mansfield to establish that the City’s articulated
reason for not selecting Mansfield is pretext for discrimination. Pierson v. Quad/Graphics
Printing Corp., 749 F.3d 530, 539 (6th Cir. 2014). An employee may demonstrate that an
employer’s stated reason for taking an adverse employment action was pretext by showing “that
the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s
challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Id. (quoting
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (en banc)).
On the record before us, the evidence is clear that at some point after Mansfield filed a
complaint with the EEOC, Assistant Chief Roy Fields was overheard saying “[a]ll we have to do
is come up with a good reason of why we promoted Wood.” R. 38-5 (Campbell Dep. at 37)
(Page ID #999) (emphasis added). I believe that this quotation alone creates a factual dispute
about whether the City’s stated reason actually motivated its decision to promote Wood instead
of Mansfield because it suggests that the rationale offered by the department may have changed

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or shifted over time. But we need not look at the facts out of context; Fields’s quotation coupled
with “Major Hudgens’s boorish behavior and unprofessional remarks” toward Mansfield and
Hudgens’s “major influence over the police department’s day-to-day operation” creates a
genuine dispute of material fact regarding the true reasons behind Mansfield not being promoted.
Maj. Op. at 12. We have previously held that:
Shifting justifications over time calls the credibility of those justifications into
question. By showing that the defendants’ justification for firing him changed
over time, [the plaintiff] shows a genuine issue of fact that the defendants’
proffered reason was not only false, but that the falsity was a pretext for
discrimination.
Pierson, 749 F.3d at 540 (quoting Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir.
2002)). Although it is possible that the department chose Wood over Mansfield for perfectly
legitimate and legal reasons, the quote about coming up with a reason for the decision could lead
a reasonable jury to conclude that the department shifted its reasons over time. Because “[s]uch
shifting justifications raise an inference that the proffered reasons are false and are pretext for
discrimination,” I conclude that summary judgment on the question of pretext is therefore
improper. Id. at 541.
III.
Finally, I emphasize the procedural posture of this case. We are reviewing this case on a
motion for summary judgment. Our role is not to try the case. The question before us is only
whether Mansfield has provided evidence sufficient to create a material factual dispute. Because
we must view the facts in the light most favorable to Mansfield, the non-movant, and because we
must draw all reasonable inferences in Mansfield’s favor, we should find that summary judgment
is improper. Because jurors of reason could disagree about why Wood was promoted and

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Mansfield was not, summary judgment should not be granted. I would therefore reverse the
district court’s order granting summary judgment to the City and remand for further proceedings.

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