Tesfa v. American Red Cross
Filing
38
ORDER granting in part and denying in part 28 Defendant's Motion for Summary Judgment. Signed by Judge Gregory L Frost on 8/6/13. (sem1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SEFANIT TESFA,
Case No. 2:12-cv-0397
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King
Plaintiff,
v.
AMERICAN RED CROSS,
Defendants.
OPINION AND ORDER
This matter is before the Court on the motion for summary judgment of Defendant
American Red Cross (ECF No. 28), Plaintiff Sefanit Tesfa’s memorandum in opposition to the
motion for summary judgment (ECF No. 31), and Defendant’s reply brief in further support of
its motion (ECF No. 35). For the reasons set forth in more detail below, the Court GRANTS IN
PART AND DENIES IN PART Defendant’s motion: Plaintiff’s national origin discrimination
claim survives; her race discrimination claim does not.
I.
This is an employment discrimination case in which Plaintiff Tesfa alleges that she was
denied a promotion on the basis of her race (Black) and her national origin (Ethiopian).
Defendant American Red Cross (the “Red Cross”) hired Plaintiff Tesfa for a “Technical
Assistant II” position in 2002. In that position, Tesfa worked in the Component Manufacturing
Lab, where the Red Cross manufactures blood components from whole blood donations for use
at hospitals and other medical facilities. Tesfa’s responsibilities as a Technical Assistant II
included preparing blood components, manufacturing, processing, labeling, storing blood
1
products, and performing certain data entry tasks. From the date of her hire in 2002 until
sometime in 2010, Tesfa worked second shift, from 4:00 p.m. until 2:00 a.m.
In 2004, the Red Cross promoted Tesfa to a “Technologist II” position. In this capacity,
Plaintiff’s job responsibilities included advanced manufacturing of blood components,
assumption of some supervisory functions, communicating and working with hospital
transfusion staff, and communicating and working with National Testing Laboratory staff.
While in the Technologist II position, Tesfa received performance evaluations. Her overall
performance rating for fiscal years 2006 to 2010 was consistently “exceeds expectations.”
Despite this overall rating, the Red Cross identified on her performance evaluations areas that
were characterized as problematic or needing improvement. For example, in her evaluation for
the 2007-08 fiscal period, she was rated “unsatisfactory” in her ability to “minimize problems,”
with the Red Cross citing 29 problems (including one “Level 3 problem”) during the fiscal year.
Nonetheless, the same evaluation in which she rated “unsatisfactory” in this respect was positive
in its assessment of Tesfa’s overall performance and potential for promotion with the Red Cross:
Sefanit has received an Exceeds Expectations/4 rating,1 because of her
outstanding performance this fiscal year. In the past year, her leadership, problem
solving skills, and knowledge of component manufacturing have made significant
progress. While giving work direction, training others, etc., Sefanit speaks to
others respectfully and maintains a professional manner. With the exception of
the number of problems that she was involved in this past year, her performance
exceeded all expectations. She is a vital member of the component manufacturing
team; her service and the expertise that she brings to the Central Ohio Region is
invaluable.
(ECF No. 27-17 at PageID# 538.) The same evaluation added that Tesfa “has potential to
become a Laboratory Supervisor.” (Id.)
1
The Red Cross’s performance evaluations rated employees on a scale of 1 through 5. The number 1
denotes “unsatisfactory” performance; number 2 denotes “needs development”; number 3 denotes “meets
expectations”; number 4 denotes “exceeds expectations”; and number 5 denotes “exceptional”
performance. (ECF No. 27-17 at PageID# 538.)
2
Tesfa’s evaluation for the 2009-10 fiscal period was similarly positive. Under the core
competency of “Decision Making, Problem Solving and Innovation,” the review indicated
improvement from the previous year in Tesfa’s problem solving skills. (ECF No. 27-18 at
PageID# 545.) Tesfa was also singled out as “the most trusted trainer, especially for new
personnel” because she could be counted on “to ensure that they understand what is expected of
them.” (Id.) Her supervisor’s comments also expressed the view that Tesfa was “the most
reliable person in the laboratory,” but also advised her “to not let the more pushy staff tell her
how to do or run things.” (Id. at PageID# 547.) Overall, her supervisor gave her an “exceeded
expectations” rating. (Id.)
During Tesfa’s time as a Technologist II, a position for Laboratory Supervisor came open
multiple times. The Red Cross’s job description for Laboratory Supervisor listed the following
qualifications for the position:
Bachelor’s degree in science, or equivalent combination of related education and
experience required. Three years experience including one year supervisory
experience required. MT (ASCP) certifications or equivalent certifications where
required. Pharmaceutical manufacturing experience preferred. Must have
effective communication and customer service skills. Knowledge of blood
products, supplies, and the ability to interact with diverse customers (internal and
external) is required.
(ECF No. 31-6 at PageID# 648.)
Tesfa applied for the promotion to Laboratory Supervisor six different times—three times
in 2007, twice in the fall of 2010, and once in February/March 2011. Tesfa’s applications for
promotion were not successful. The persons chosen for these positions were Tracey Mattia
(2007), Shawn Cericola (2007), Jason Hughey (2007), Amy Weinberg (October 2010), Matthew
Gibson (November 2010), and Brian Boxill (March 2011). Of these persons, Mattia and Boxill
are Black.
3
Laura Starkey, a Red Cross Lab Manager in 2007, was the decisionmaker for the three
promotions in 2007. In her deposition, Starkey testified that she chose Mattia over Tesfa
because of Mattia’s troubleshooting experience as a Technologist II and her experience as an
“acting supervisor” during weekend shifts. (Starkey Dep. 86-87, ECF No. 25 at PageID# 113.)
In Cericola’s case, Starkey considered him the most qualified candidate for the Laboratory
Supervisor position because of his strong leadership skills in a similar position to the Red
Cross’s “lead technician” positions. (Id. at 88.) As for Hughey, Starkey testified that he was
more qualified than Tesfa to be placed in a supervisory role. (Id. at 47, PageID# 103.) At that
time, Starkey felt that Tesfa’s supervisory skills were weak, due mainly to Tesfa’s tendency to
avoid conflict with staff. (Id. at 48-49.)
The Red Cross’s decisionmaker for the Gibson and Boxill promotions in 2010 and 2011
was Evette Wise. At her deposition, Wise testified that Gibson was a superior candidate due to
his experience as the acting supervisor during a period when Mattia was on maternity leave.
(Wise Dep. 121-22, ECF No. 26 at PageID# 157-58.) Like Starkey, Wise also testified that
Tesfa “avoids conflict” and was not as good as Gibson was in dealing with the staff. (Id.) Wise
further elaborated that while Tesfa was good at the “technical” aspects of the job, Gibson was
“the full package,” meaning he had the technical skills and the “people skills that you need . . . to
deal with the varied personalities that we have in the laboratory.” (Id. at 155, PageID# 166.)
As for the decision to promote Boxill to a Laboratory Supervisor position in 2011, Wise’s
testimony reveals that she did not consider Tesfa for the position at all. Due to Mattia moving to
a first shift supervisor position on weekdays, the supervisor position that came open in 2011 was
a second shift position for Fridays, Saturdays, Sundays, and Mondays. (Id. at 124, PageID#
158.) According to Wise, Tesfa “did not apply” for the position and was not interviewed for that
4
reason. (Id.) For her part, Tesfa disputes Wise’s account, saying (1) that she did, in fact, apply
for the position that ultimately went to Boxill and (2) that at no time did she inform Wise or
anyone else that she was not interested in the promotion because it was a Friday-to-Monday
second shift position. (Tesfa Dec.&& 1 and 10, ECF No. 31-1 at PageID# 618-19.)
As for Boxill’s qualifications for the Laboratory Supervisor position, Wise acknowledged
that Boxill lacked some of the technical experience that Tesfa had. At the time, Boxill had
worked at the Red Cross for 14 years in a variety of positions, starting as a courier before
working his way to “cell saver technologist” at the time he applied for promotion to Lab
Supervisor. Wise was also aware that Boxill, unlike Tesfa, did not have a bachelor’s degree of
any kind, much less in science. (Wise Dep. 144, ECF No. 26 at PageID# 163.) Wise indicated,
however, that Boxill “brought, in my mind, more supervisory skills to the table than [Tesfa] did.”
(Id. at 149, PageID# 164.) In Wise’s view, it was easier to train Boxill in the “technical” aspects
of the job than it would have been to train Tesfa in “the soft people skills” needed to be an
effective supervisor. (Id.)
In April 2011, less than a month after Boxill received the promotion to Laboratory
Supervisor, Tesfa filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). The EEOC issued its dismissal and notice of right to sue in December
2011, finding that it was unable to conclude that the information Tesfa provided established
unlawful employment discrimination. Tesfa then commenced this action in the Franklin County
(Ohio) Court of Common Pleas, alleging a claim of race and/or national origin discrimination
under Chapter 4112 of the Ohio Revised Code. The Red Cross removed the case to this Court,
invoking federal jurisdiction under 36 U.S.C. § 300105(a)(5) and American Natl. Red Cross v.
S.G. & A.E., 505 U.S. 247, 257 (1992).
5
The Red Cross now moves for summary judgment, contending that Tesfa has failed to
establish a genuine issue of material fact for trial on the ultimate question of whether the Red
Cross unlawfully discriminated against her when it passed her over for promotion. The Red
Cross’s motion is fully briefed and ripe for this Court’s adjudication.
II.
Summary judgment is appropriate “if the movant shows that 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). The Court may therefore grant a motion for summary judgment if the nonmoving party
who has the burden of proof at trial fails to make a showing sufficient to establish the existence
of an element that is essential to that party’s case. See Muncie Power Prods., Inc. v. United
Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)).
As the party seeking summary judgment, the Red Cross bears the initial responsibility of
(1) informing the district court of the basis for its motion and (2) identifying the portions of the
record that demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S.
at 323. The burden then shifts to Tesfa, who as the nonmoving party must show that there is a
genuine dispute for trial. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A genuine dispute of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Muncie Power Prods., Inc., 328
F.3d at 873 (quoting Anderson, 477 U.S. at 248); see also Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Thus, the
central issue on a motion for summary judgment is “whether the evidence presents a sufficient
6
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
A. Only the Boxill Promotion is at Issue
Before proceeding to the merits of the Red Cross’s motion for summary judgment, the
Court takes a moment to clarify what issues are before it. In her deposition, Tesfa testified that
she unsuccessfully applied for a promotion to Laboratory Supervisor at least six times: three of
these were in 2007, two were in 2010, and one was in 2011. Only the 2011 promotion—the one
that Boxill received over Tesfa—is before the Court at this juncture.
The 2007 promotions are not part of this case because Tesfa did not plead any of those as
a basis of her discrimination allegations. The Complaint conspicuously identified only three
promotions as having been discriminatory against her—the promotion of Gibson in November
2010 and the promotions of Mattia and Boxill in March 2011. (Compl. && 14-17, ECF No. 3 at
PageID# 13-14.)2 Thus, the 2007 promotions cannot form the basis of any discrimination claim
in this case. See Spengler v. Worthington Cylinders, 514 F. Supp. 2d 1011, 1017 (S.D. Ohio
2007) (noting that a plaintiff may not defeat summary judgment by asserting a claim not pleaded
in the complaint). In any event, Tesfa’s opposition to the Red Cross’s summary judgment
motion makes no argument concerning the 2007 promotions for which she was passed over. So,
simply put, the Red Cross’s 2007 promotion decisions are not a part of this case.
As for the 2010 promotions of Weinberg and Gibson, neither one of those is before the
Court at this time. Tesfa’s opposition to summary judgment does not place either of those
2
Based on the evidence of record, it appears that the Complaint inaccurately states that Mattia was
promoted to the Laboratory Supervisor position in March 2011. The summary judgment evidence
indicates that Mattia was promoted in 2007; in March 2011, Mattia switched to another Laboratory
Supervisor position, working a different shift. In her opposition to the Red Cross’s summary judgment
motion, Tesfa does not contend that Mattia was promoted in March 2011, effectively abandoning said
claim in her Complaint.
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promotions at issue. Tesfa focuses her arguments solely upon the promotion of Boxill to
Laboratory Supervisor in March 2011. (Pl.’s Opp’n, ECF No. 31 at PageID# 610-16.) The
parties’ briefing (in particular, Plaintiff’s memorandum in opposition) has therefore streamlined
the matters before the Court. The only matter at issue for this Court’s adjudication is whether
Tesfa has established a genuine issue of material fact with respect to whether Boxill’s promotion
to Laboratory Supervisor over her was discriminatory on the basis of race or national origin.
B. National Origin Discrimination
The gravamen of Tesfa’s action is her allegation that the Red Cross denied her a
promotion to Laboratory Supervisor on the basis of her race (Black) or her national origin
(Ethiopia) in violation of Ohio Rev. Code '' 4112.02 and 4112.99. (Compl. && 21-22, ECF
No. 3 at PageID# 15.)3 Though Ohio law supplies the substantive law in this case, Ohio courts
have routinely recognized that federal case law interpreting Title VII of the Civil Rights Act of
1964 (42 U.S.C. ' 2000e et seq.) is generally applicable to cases involving alleged violation of
Chapter 4112 of the Ohio Revised Code. See, e.g., Ohio Civ. Rights Comm’n v. David Richard
Ingram, D.C., 69 Ohio St. 3d 89, 93, 630 N.E. 2d 669 (Ohio 1994); Plumbers & Steamfitters
Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm’n, 66 Ohio St. 2d 192, 196, 421 N.E. 2d
128 (Ohio 1981); see also Vinson v. MTD Consumer Group, Inc., No. 1:11-cv-1259, 2013 U.S.
Dist. LEXIS 27424, at *18 (N.D. Ohio Jan. 24, 2013) (applying Title VII burden-shifting
framework to a failure-to-promote case brought under Ohio Rev. Code '' 4112.02 and 4112.99).
3
Ohio Rev. Code ' 4112.02(A) provides that it is an unlawful discriminatory practice “[f]or any
employer, because of the race, color, religion, sex, military status, national origin, disability, age, or
ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate
against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any
matter directly or indirectly related to employment.” Ohio Rev. Code ' 4112.99 provides that anyone
who violates ' 4112.02(A) “is subject to a civil action for damages, injunctive relief, or any other
appropriate relief.”
8
Tesfa does not identify any so-called direct evidence of discrimination on the basis of
race or national origin. Thus, the Court will analyze her claims using the familiar McDonnell
Douglas framework. Kumar v. Aldrich Chem. Co., 911 F. Supp. 2d 571, 584 (S.D. Ohio 2012);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). To establish a prima facie
case of discrimination on a failure to promote claim, Tesfa must establish (1) membership in a
protected class, (2) that she applied and was qualified for a promotion, (3) that the Red Cross
considered her and denied the promotion, and (4) other employees of similar qualifications who
were not members of the protected class received promotion. Provenzano v. LCI Holdings, Inc.,
636 F.3d 806, 812-13 (6th Cir. 2011). The plaintiff’s burden at the prima facie stage “is not
onerous,” posing a burden that is “easily met.” Cline v. Catholic Diocese of Toledo, 206 F.3d
651, 660 (6th Cir. 2000) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981) and Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987)). The prima facie stage “is
‘only the first stage of proof in a Title VII case,’ and its purpose is simply to ‘force [a] defendant
to proceed with its case.’” Id. (quoting EEOC v. Avery Dennison Corp., 104 F.3d 858, 861-62
(6th Cir. 1997)).
If Tesfa establishes a prima facie case, the burden shifts to the Red Cross to proffer a
legitimate, nondiscriminatory reason for its decision not to promote Tesfa. Provenzano, 663
F.3d at 814. If the Red Cross meets that burden of production, the burden then shifts back to
Tesfa to demonstrate that the Red Cross’s proffered reason for passing her over for promotion is
a pretext for discrimination. Id. at 815.
1. Prima Facie Case for National Origin Discrimination
As to Tesfa’s claim for national origin discrimination, it is not disputed that Tesfa is a
member of a protected class (i.e., being of Ethiopian descent), that she was denied promotion in
9
March 2011, and that an American-born candidate (Boxill) received the promotion. Thus, the
only prong of the prima facie case that is at issue is the second one—whether Tesfa applied for
and was qualified for promotion to Laboratory Supervisor.
The Red Cross’s primary argument in favor of summary judgment is that Tesfa was
unqualified for promotion to Laboratory Supervisor. Emphasizing the deposition testimony of
Starkey and Wise, both of whom assessed Tesfa’s qualifications for promotion, the Red Cross
argues that Tesfa lacked the people skills that a good supervisor needs. In particular, the Red
Cross makes much of the fact that Tesfa acknowledged that she does not like confrontation. This
“tendency to avoid conflict,” as Starkey described it in her deposition, is a strike against Tesfa’s
qualifications to be a supervisor. (Starkey Dep. 48, ECF No. 25 at PageID# 103.) Wise, who
was the ultimate decisionmaker with respect to Boxill’s promotion, echoed Starkey’s assessment
of Tesfa. Though acknowledging that Tesfa was highly skilled in the “technical” aspects of job,
Wise did not consider Tesfa to have the “full package” of skills necessary to be a supervisor
because Tesfa lacked the “people skills” to be an effective supervisor. (Wise Dep. 132, ECF No.
26 at PageID# 160.)
For her part, Tesfa disputes the notion that she lacked the people skills that would make
her qualified to be Laboratory Supervisor. Tesfa points to her performance evaluations, one of
which cited her “ability to interact with diverse customers” as “outstanding.” In addition, Tesfa
argues that she satisfied most (if not all) of the objective qualifications listed for the Laboratory
Supervisor job description: she has (1) a bachelor’s degree in microbiology from Idaho State
University, (2) more than ten years of experience in the Red Cross’s Component Manufacturing
lab, and (3) served as “Acting Supervisor” in the Component Manufacturing lab.
10
Bearing in mind that a plaintiff’s burden at the prima facie case stage “is not onerous,”
Cline, 206 F.3d at 660, the Court has no trouble concluding that Tesfa has cleared the hurdle of
establishing that she was qualified for the promotion to Laboratory Supervisor. In reaching this
conclusion, the Court heeds the Sixth Circuit’s analysis of the relevant considerations that come
into play when analyzing a plaintiff’s qualifications at the prima facie stage:
At the prima facie stage, a court should focus on a plaintiff’s objective
qualifications to determine whether he or she is qualified for the relevant job. See
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C.Cir.1998) (en banc)
(noting that “courts traditionally treat explanations that rely heavily on subjective
considerations with caution,” and that “an employer’s asserted strong reliance on
subjective feelings about the candidates may mask discrimination”); MacDonald
v. E. Wyo. Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir.1991) (holding that
a plaintiff can show that she is qualified by presenting “credible evidence that she
continued to possess the objective qualifications she held when she was hired”)
(emphasis added). The prima facie burden of showing that a plaintiff is qualified
can therefore be met by presenting credible evidence that his or her qualifications
are at least equivalent to the minimum objective criteria required for employment
in the relevant field. Although the specific qualifications will vary depending on
the job in question, the inquiry should focus on criteria such as the plaintiff’s
education, experience in the relevant industry, and demonstrated possession of the
required general skills.
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003).
Based on the objective qualifications listed in the Red Cross’s job description, Tesfa was
at least minimally qualified for the Laboratory Supervisor position. Tesfa possesses a bachelor’s
degree in the science field (microbiology), had more than 10 years of relevant experience, and
had relevant knowledge of blood products and supplies from her experience working with the
Red Cross. She also had supervisory experience as an acting supervisor. Under the teaching of
Wexler, Tesfa satisfied the Red Cross’s objective qualifications enough to clear the second prong
of her prima facie case.
The Red Cross is adamant in its position that Tesfa was unqualified to be a supervisor
and urges the Court to find that she cannot make out a prima facie case because her
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qualifications are lacking. The Red Cross points to Starkey’s and Wise’s assessment of Tesfa’s
supervisory and “people skills” as evidence that Tesfa was unqualified. While the Court
understands that inquiry into Tesfa’s supervisory and people skills is germane to the analysis of
whether Tesfa was qualified for the promotion in question, such an assessment is not appropriate
at the prima facie case stage. Unlike readily verifiable information concerning a college degree
or a level of experience (which are inherently objective criteria), the assessment of whether Tesfa
had the people skills or demeanor to be an effective supervisor are inherently subjective
qualifications that the Court cannot consider at the prima facie case stage. Cf. Sempier v.
Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (noting that whether a candidate possessed
a subjective quality like “leadership or management skill” should be considered in the later
stages of the McDonnell Douglas inquiry and not at the prima facie case stage) (cited with
approval in White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 242 n.6 (6th Cir. 2005));
Vinson v. MTD Consumer Group., 2013 U.S. Dist. LEXIS 27424 at *23 (finding that a plaintiff’s
purported “lack of leadership skills” was a subjective measure not appropriate for consideration
at the prima facie case stage). To consider subjective criteria at the prima facie case stage is
inconsistent with the purpose and structure of the McDonnell Douglas burden-shifting
framework. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005) (cited with
approval in White).
In addition, the Court notes that the Red Cross relies on Starkey’s and Wise’s negative
opinions of Tesfa’s qualifications as one of the proffered justifications for the decision not to
promote Tesfa to Laboratory Supervisor. (Def.’s Mot., ECF No. 28 at PageID# 592.) That being
the case, these opinions have no place in the analysis of whether Tesfa has made out a prima
facie case for discrimination. As the Sixth Circuit has repeatedly noted, the evaluation of an
12
employment discrimination plaintiff’s prima facie case “must be conducted independently of [the
employer’s] proffered nondiscriminatory reason and must not conflate the prima facie and
pretext stages of the McDonnell Douglas test.” Provenzano, 663 F.3d at 813 (citing White, 429
F.3d at 242); see also Cline, 206 F.3d at 661.
For the reasons stated above, the Court finds that a reasonable jury could find that Tesfa
satisfied the objective criteria for promotion to Laboratory Supervisor. Accordingly, Tesfa has
met her burden of establishing a prima facie case of national origin discrimination.
2. Pretext
The Red Cross proffers two nondiscriminatory reasons for its decision not to promote
Tesfa to Laboratory Supervisor: (1) Tesfa did not apply for the promotion that ultimately went to
Boxill and (2) in any event, Tesfa lacked the supervisory and people skills necessary to be a good
supervisor. Thus, the burden shifts back to Tesfa to demonstrate a genuine issue of material fact
as to whether the Red Cross’s proffered justifications are pretextual.
A plaintiff can demonstrate pretext by showing that an employer’s proffered reasons for
an adverse employment action (1) had no basis in fact, (2) did not actually motivate the
employer’s conduct, or (3) were insufficient to warrant the challenged conduct. White, 429 F.3d
at 245; Wexler, 317 F.3d at 576. The relative qualifications of applicants may also establish a
triable issue of fact as to pretext. Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 626-27 (6th Cir.
2006). A comparison of applicants’ relative qualifications can be probative of pretext where the
evidence shows that the plaintiff was either (1) a plainly superior candidate, such that no
reasonable employer would have passed her over in favor of the successful applicant, or (2) as
qualified, if not better qualified, than the successful applicant, and the record contains “other
13
probative evidence of discrimination.” Id. at 627-28; see also Bartlett v. Gates, 421 F. App’x
485, 491 (6th Cir. 2010).
a. Tesfa’s Interest in a Second Shift Supervisor Position
At her deposition, Wise testified that she did not interview Tesfa for the 2011 Laboratory
Supervisor opening because “[s]he did not apply” for the job. (Wise Dep. 124, ECF No. 26 at
PageID# 158.) Because the position was for second shift on Fridays to Mondays, Wise thought
Tesfa was not interested in it because of her well-known preference for first shift over second
shift. (Id.) Based solely on her conversation with Wise, Starkey also thought that Tesfa was not
interested in a second shift supervisor position. (Starkey Dep. 37-38, ECF No. 25 at PageID#
100-01.)
Viewing the record evidence in the light most favorable to Tesfa, the Court concludes
that a reasonable jury could disbelieve the Red Cross’s explanation. Tesfa’s declaration
submitted in opposition to the Red Cross’s motion for summary judgment states unequivocally
that she applied for the open Laboratory Supervisor position in February 2011 and that she did
not withdraw her application, even though she knew the opening was for second shift. (Tesfa
Dec. && 1, 7, 10, ECF No. 31-1.) This evidential discrepancy alone creates a genuine issue of
material fact with regard to whether the Red Cross’s justification was false.
Moreover, deposition testimony of the Red Cross witnesses supports the existence of a
genuine factual issue for trial. Based on the deposition testimony of Starkey and Wise, the Red
Cross takes the position that Tesfa applied for the promotion in February 2011, but withdrew her
application when it was revealed that the position was for second shift instead of “day shift.”
(Starkey Dep. 35, ECF No. 25 at PageID# 100.) But nowhere is it documented in the Red
Cross’s records that Tesfa withdrew her application for the promotion. And Wise acknowledged
14
that if Tesfa had indeed withdrawn her application for the position after learning it was for
second shift, Tesfa’s intent would have been documented somewhere in the Red Cross’s
personnel records. (Wise Dep. 129, ECF No. 26 at PageID# 159.)
Clinging to the notion that Tesfa was not interested in the second shift supervisory
position, the Red Cross emphasizes (citing Tesfa’s deposition) that Tesfa tried for seven years to
move from second shift to first shift, finally getting her wish in March or April 2011. (Def.’s
Reply, ECF No. 35 at PageID# 682.) Thus, the Red Cross argues that “[n]o reasonable jury
could believe that Plaintiff was interested” in the second shift supervisor position based on these
facts. (Id. at PageID# 683.) The Court is not persuaded, however, as a reasonable jury could
easily reject the Red Cross’s rationale. Even though Tesfa tried for years to move from second
shift to first shift, it is not implausible that she would have taken a second shift position for a
promotion to Laboratory Supervisor. In the Court’s view, a reasonable jury could easily
conclude that Tesfa (or any employee for that matter) would be willing to switch work shifts in
order to secure a promotion.
b. Tesfa’s Supervisory and People Skills
The Red Cross also contends that Tesfa was unqualified for a Laboratory Supervisor
position because she lacked the supervisory and people skills to be effective in that role. As the
Sixth Circuit has observed, examining certain subjective qualifications, though not appropriate at
the prima facie case stage, may be germane to the inquiry of whether the employer’s proffered
justification is a pretext for discrimination. See Provenzano, 663 F.3d at 814 (explaining that the
“light review” of a plaintiff’s qualifications at the prima facie stage “must be distinguished from
the more rigorous comparison conducted at the later stage of the McDonnell Douglas analysis”).
15
In the Court’s view, the record establishes a triable issue as to whether Starkey’s and
Wise’s opinions with regard to Tesfa’s supervisory and people skills actually motivated the
decision not to promote her. The assessments of Starkey and Wise appear inconsistent with
Tesfa’s performance evaluations. Though Starkey and Wise questioned Tesfa’s people skills,
Tesfa’s 2010 performance evaluation (signed by Wise as Tesfa’s “next-level supervisor”)
described Tesfa as “a good leader,” “well-liked,” and “an asset to the laboratory leadership
team.” (ECF No. 27-18 at PageID# 545.) In the area of “Leadership Competencies,” the same
2010 performance evaluation described Tesfa as “selfless when it comes to training others” and
also noted that Tesfa was the Red Cross’s “most trusted trainer, especially for new personnel.”
(Id.) Overall in the area of “Leadership Competencies,” Tesfa’s supervisor gave her a “4” rating,
denoting that Tesfa “exceeded expectations” in that area. (Id. at PageID# 546.) Her supervisor’s
comments also indicated that Tesfa “is a valuable entity to the laboratory and a shining example
for others to follow.” (Id. at PageID# 547.)
Tesfa’s 2010 evaluation was not an outlier: her evaluations during her time as a
Technologist II were consistently good and contained indications that Tesfa was supervisor
material. In 2008, for example, Tesfa’s supervisor gave her a rating of “5” (denoting
“exceptional” performance) in the area of “clearly and effectively” communicating to individuals
and groups, as well as the area of working “effectively with internal and external customers.”
(ECF No. 27-17 at PageID# 537.) The evaluation rated Tesfa as a “4” overall (“exceeds
expectations”) and suggested that Tesfa “had the potential to become a Laboratory Supervisor.”
(Id. at PageID# 538.) Similarly, in 2007, an evaluation signed by Starkey as Tesfa’s “next level
supervisor,” described Tesfa as “a role model and source of guidance to her co-workers.” (ECF
No. 27-15 at PageID# 531.) These positive assessments of Tesfa’s qualifications and skills could
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lead a reasonable jury to conclude that the proffered justification that Tesfa lacked supervisory
and people skills was pretextual.
For its part, the Red Cross questions the probative value of the glowing evaluations of
Tesfa’s performance. The Red Cross makes much of the fact that these were evaluations of
Tesfa’s performance as a Technologist II and therefore have little bearing on whether she would
be effective in a Laboratory Supervisor position. Relying on Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 272 (6th Cir. 2005), the Red Cross argues that Tesfa cannot
escape summary judgment because “good performance in a lower position does not indicate
qualifications for a promotion.” (Def.’s Reply, ECF No. 35 at PageID# 683.) But Anderson
does not dictate that summary judgment be granted for the Red Cross here. In this case, Tesfa’s
evaluations described leadership competencies and, in one instance, actively encouraged Tesfa to
seek a promotion to Laboratory Supervisor. Thus, unlike in Anderson, there is evidence in the
record that could compel a reasonable jury to conclude that the Red Cross harbored at least some
belief that Tesfa was qualified for promotion to Laboratory Supervisor. Moreover, the Red
Cross’s argument is curious given the relative qualifications of Boxill (the successful applicant
for promotion) and Tesfa. The Red Cross lauds Boxill’s qualifications for the position, but his
performance was—like Tesfa’s—in a “lower position” (to use the Red Cross’s words). The Red
Cross does not persuasively explain how the positive assessment of Boxill’s performance in a
lower position should be relevant while Tesfa’s should not.
The Court is also persuaded that a triable issue on pretext exists based on the relative
qualifications of Boxill and Tesfa. As noted above, comparison of applicants’ relative
qualifications can reveal a genuine issue of material fact as to pretext where the evidence shows
either (1) that the plaintiff was a plainly superior candidate, such that no reasonable employer
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would have passed her over in favor of the successful applicant, or (2) that the plaintiff was as
qualified, if not better qualified, than the successful applicant, and the record contains “other
probative evidence of discrimination.” Bartlett, 421 F. App’x at 491. Here, the relative
qualifications of Boxill and Tesfa are such that a reasonable fact finder could believe that Tesfa
was the superior candidate. For example, Tesfa possessed a bachelor’s degree in science, Boxill
did not; Tesfa had laboratory experience, Boxill did not; and Tesfa had more experience training
laboratory technologists than did Boxill. The fact that Tesfa’s resume seemed to have these
objective advantages over Boxill’s, coupled with the fact that Tesfa’s performance evaluations
arguably belie Starkey’s and Wise’s opinions about Tesfa’s supervisory ability and people skills,
could lead a reasonable jury to disbelieve the Red Cross’s explanation for promoting Boxill over
Tesfa.
In reaching its conclusion, the Court is not stating that Tesfa is necessarily more qualified
than Boxill or that Tesfa should have received the promotion over Boxill. A court does not sit as
a “super personnel department” that second-guesses an employer’s hiring and promotion
decisions. Bender, 455 F.3d at 627. And in this case, it very well could be that Boxill was the
more desirable and appropriate candidate for promotion to Laboratory Supervisor for entirely
legitimate business reasons. But on the record before it, the Court finds that a reasonable jury
might find otherwise. Thus, this is a case that has to be tried, not resolved on summary
judgment.
C. Race Discrimination
In the single count of her Complaint, Plaintiff alleges both race and national origin
discrimination. She fails, however, to make out a prima facie case for race discrimination.
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The final element of a prima facie case of failure to promote under the McDonnell
Douglas burden-shifting framework is that a similarly-situated employee outside the protected
class received the promotion. Provenzano, 636 F.3d at 812-13. In this case, however, it is not
disputed that Boxill—the person whom the Red Cross chose for promotion over Tesfa—is also
Black. Accordingly, Tesfa cannot make out a prima facie case for race discrimination. The Red
Cross is therefore entitled to summary judgment on Tesfa’s claim for race discrimination.
III.
For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN
PART Defendant’s motion for summary judgment (ECF No. 28.) The Court finds that summary
judgment is appropriate on Plaintiff’s claim of race discrimination. There remains a genuine
issue of material fact for trial, however, as to Plaintiff’s claim of national origin discrimination
under Ohio Rev. Code ' 4112.02.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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