Hawkins v. Memphis Light Gas and Water
Filing
67
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Samuel H. Mays, Jr on 12/1/11.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
EMMETT HAWKINS,
Plaintiff,
v.
MEMPHIS LIGHT GAS AND WATER,
Defendant.
)
)
)
)
)
)
)
)
)
No. 09-2024-Ma
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff
Emmett
Hawkins
(“Hawkins”)
alleges
race-based
discrimination in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.
¶¶ 15-32, ECF No. 1.)
(See Compl.
Before the Court is Defendant Memphis
Light Gas and Water’s (“MLGW”) May 1, 2010 Motion for Summary
Judgment.
Mot.”)
(Def.’s Mot. For Summ. J., ECF No. 29.) (“Def.’s
Hawkins responded in opposition on May 31, 2010.
(Resp.
to Mot. For Summ. J., ECF No. 34; Pl.’s Mem. In Resp. to Mot.
For Summ. J., ECF No. 34-1 (“Pl.’s Resp.”).) 1
For the following
reasons, MLGW’s motion is GRANTED.
1
MLGW moved for summary judgment and Plaintiff responded while the previous
edition of the local rules governed actions in this district. Under that
version, Local Rule 7.2(d)(3) provided that a party opposing a motion for
summary judgment who disputed any of the material facts on which the
proponent relied was to “respond to the proponent’s numbered designations,
using the corresponding serial numbering, both in the response and by
attaching to the response the precise portions of the record relied upon to
evidence the opponent’s contention that the proponent’s designated material
1
Background 2
I.
Plaintiff
began
temporary
employee
Statement
of
Statement”).)
between
1982
his
in
employment
the
Undisputed
microfilm
Material
MLGW
in
1981
as
department.
Facts
¶¶
1-2
a
(Def’s
(“Def.’s
Plaintiff received four promotions within MLGW
and
2001,
eventually
(Id. At ¶¶ 4-6.)
Salvage.
with
serving
as
a
Foreman
of
After serving as Foreman, Plaintiff
became the Supervisor of Material Control.
capacity for approximately thirteen years.
He worked in that
Plaintiff became the
Foreman in Stores when the Material Control and Stores divisions
merged in the late 1990s.
(See id. ¶¶ 7-8.)
Plaintiff applied
for the position of Supervisor of the Stores division in 2002,
but Nancy Mitchison received the promotion.
(See Mary Helen
Lovett Dep. 66:9-19, ECF No. 34-5.) (“Lovett Dep. 1.”)
On February 28, 2006, the MLGW Human Resources Department
posted
a
division.
job
solicitation
for
a
supervisor
in
the
Stores
(Def.’s Statement ¶ 10; Pl.’s Statement of Undisputed
Material Facts ¶ 17, ECF No. 34-2 (“Pl.’s Statement”).)
announcement
listed
the
position’s
minimum
requirements
The
as
follows:
facts are at issue.” W.D. Tenn. Civ. R. 7.2(d)(3). Plaintiff has failed to
comply with the local rule. (See Pl.’s Resp.) Unless otherwise stated,
Plaintiff’s responses have been disregarded where he has failed to comply
with the local rules. See Akines v. Shelby Cnty. Gov’t, 512 F. Supp. 2d
1138, 1147-48 (W.D. Tenn. 2007).
2
All facts in the Background are undisputed for purposes of MLGW’s Motion for
Summary Judgment unless otherwise stated.
2
Bachelor’s degree in Business Administration with 4 to
6 years of stores experience OR ten years of
journeyman level experience in stores with 2 to 4
years Foreman experience.
Must successfully complete
Supervisor Assessment Center.
Must be familiar with
the operations of the Stores Department. Must have a
valid driver’s license from state of residence.
(Def.’s
Statement
Announcement.”)
“train[ing],
¶
15;
Ex.
C,
ECF
No.
29-5.)
(“Job
Successful applicants would be responsible for
direct[ing],
and
supervis[ing]
employees
.
.
.
salvaging or recycling Division materials, [and] disposing of
hazardous materials and operating [the] company store.”
(Def.’s
Statement ¶ 11.)
Three candidates responded to the job posting.
In addition
to Plaintiff, Gala Gailes and Nancy Miller timely submitted bids
for
the
position. 3
(Def.’s
Statement
¶¶
13-14.)
Verlinda
Henning, a Human Resources (“HR”) professional for the executive
staff division at MLGW, reviewed the applicants’ personnel files
and decided whether each candidate met the position’s minimum
requirements.
generated
(Def.’s Statement ¶ 15.)
“research
sheet[s]”
for
Human Resources then
each
candidate,
which
contained the candidate’s hire date, work history, education,
training, and other information.
(Id.; see also Henning Dep.
49:4-8, Jan 26, 2010, ECF No. 29-6.)
Initial reviews of the research sheets narrowed the field
of candidates to two.
3
Gala Gailes lacked both a Bachelor’s
Gales was African American, and Miller was white.
3
(Def’s Statement ¶ 14.)
Degree
and
the
requisite
work
experience
in
the
Stores
department, so she was eliminated from consideration.
(Def.’s
Statement ¶ 19.)
(Id. ¶¶
20-21.)
Miller and Plaintiff were qualified.
Miller
Administration,
lacked
but
a
had
Bachelor’s
Degree
approximately
in
fifteen
Business
years
of
experience as a journeyman and nearly five years as a Foreman,
all
in
the
Stores
division.
(Id.
¶
20.)
Plaintiff
was
qualified because he had nineteen years of experience, including
ten as a Foreman.
indicated
that
completed
his
he
(Id. ¶ 21.)
had
college
Bachelor’s
Plaintiff’s research sheet
experience.
Degree
on
May
(Id.)
12,
2006,
Plaintiff
after
the
(See Ex. E, ECF No. 40-5) (“Diploma.”)
application deadline.
The research sheet used by Human Resources did not include
a
section
for
the
successful
completion
Assessment Center. 4
(Def.’s Statement ¶ 17.)
Henning
the
of
contacted
Development
Department
MLGW
to
Training
determine
the
Supervisor
On March 17, 2006,
Center
whether
Assessment
Nancy
Miller
&
and
Plaintiff had successfully completed the Supervisor Assessment
Center (“SAC”).
(Id. ¶ 27; Def.’s Mem. in Supp. of its Mot. for
Summ. J. 4, ECF No. 29-1 (“Def.’s Mem.”).)
Henning
learned
that
that
successfully passed the SAC.
both
Miller
and
Later that day,
Plaintiff
had
(Def.’s Statement ¶ 24-25, 27.)
4
The Supervisor Assessment Center is a training course that is required by
MLGW for all management and supervisory employees. (See Def.’s Mem. 4.)
4
Mary Helen Lovett (“Lovett”), the Manager of Transportation and
Stores, scheduled interviews for March 28, 2006, but they were
rescheduled to March 29.
(Id. ¶¶ 23, 26.)
Two days before the interviews were to commence, Henning
received
word
from
completed the SAC.
the
Training
(Id. ¶ 28.)
Center
that
Miller
had
not
Henning requested that Miller
be scheduled for the April 3, 2006 SAC, and Miller was permitted
to interview with her SAC scores pending.
Id. ¶ 29.
Permitting
employees to interview for positions before going through the
SAC is consistent with standard MLGW hiring procedures.
(Id. ¶
41.)
Henning
and
Lovett
conducted
both
interviews,
asked each candidate the same fourteen questions.
5.)
and
they
(Def.’s Mem.
Interview questions gauged the candidates’ abilities and
experiences
in
decision-making,
motivation.
planning,
communication,
adaptability,
(Id.)
initiative,
problem
solving,
cooperation,
Candidates’ scores in each category ranged
from 0 to 30 points, with 0 the lowest and 30 the highest. 5
Ex. J, ECF No. 29-12.)
points.
and
(See
The highest score possible was 420
(See id.) After conducting the interviews, Henning and
Lovett discussed each candidate’s responses and tabulated final
scores.
(Def.’s Mem. 5.)
5
There is no evidence in the record to explain the practical differences
between 0, 10, 20, and 30 point answers.
5
At the conclusion of Miller’s interview, both Henning and
Lovett gave her a score of 400 out of 420 possible points.
Miller’s
skills,
strengths
the
questions.
were
ability
to
noted
to
delegate,
be
dependability,
and
a
willingness
people
to
ask
(See Ex. K, ECF No. 29-13) (“Miller Evaluation 1.”)
Specifically, Henning was impressed by Miller’s work experience,
conflict resolution skills, planning, and willingness to prepare
reports.
(Id.)
Lovett noted Miller’s dependability, people
skills, and ability to motivate others.
14) (“Miller Evaluation 2.”)
(See Ex. L, ECF No. 29-
Overall, Miller’s “Selection Card
Rating,” which aggregates a candidate’s interview score and SAC
to arrive at a final score, gave her 49 out of a total of 50.
(Ex. E, ECF No. 34-9) (“Miller Evaluation 3.”)
that
Miller
candidates.
Prior
fell
into
the
“Superior”
That score meant
category
of
employment
(Id.)
to
debriefing
after
Plaintiff’s
and Lovett scored Plaintiff differently.
interview,
Henning
(See Ex. J, ECF No.
29-12 (“Hawkins Evaluation 2”); see also Hawkins Evaluation 1.)
Henning gave Plaintiff 280 out of 420 possible points, and the
record reflects that Henning increased Plaintiff’s scores in the
areas of “Problem Solving” and “Motivation” to arrive at her
final calculation.
of
420
points,
(See Ex. J.)
and
the
record
Lovett gave plaintiff 260 out
reflects
that
she
decreased
Plaintiff’s scores on the question of “what are the supervisor’s
6
most important responsibilities?” and “Problem Solving.”
Hawkins Evaluation 1.)
him
a
score
of
39
(See
Plaintiff’s “Selection Card Rating” gave
out
of
50,
which
placed
“Acceptable” range of employment candidates.
him
in
the
(Ex. D, ECF No.
34-8) (“Hawkins Evaluation 3.”)
Henning identified Plaintiff’s strengths as his vision for
the
Stores
department,
strong background.
high
ratings
in
Although Henning
his
philosophies
(See Def.’s Mem. 6.)
education,
training,
commended
Plaintiff’s
and
ideas,
and
his
Lovett gave Plaintiff
and
experience.
vision
and
(Id.)
background,
she noted that he was weak in preparing reports, budgeting, and
performing two-minute reviews—three of the primary supervisory
responsibilities.
25.)
(See Henning Dep. 101:1-15, 98:16-19, 98:20-
Plaintiff received marginal scores in the areas of problem
solving,
cooperation,
and
motivating
other
employees.
(See
Hawkins Evaluation 1.)
On April 5, 2006, Henning contacted the Training Center to
determine
whether
Miller
(Def.’s Statements ¶ 7.)
had
successfully
Griffin,
memorandum
to
Henning’s
Joseph
Lee
the
SAC.
Carlotta Burnette, a Training Center
employee, informed Henning that Miller had.
Rutha
completed
Supervisor,
III,
the
On April 17, 2006,
sent
an
then-President
interoffice
of
MLGW,
requesting approval to offer Miller the position of Supervisor,
Stores.
(Id. ¶ 37.)
Joseph Lee approved Miller’s offer.
7
(Id.
¶ 38.)
the
On May 2, 2006, all three candidates were informed of
employment
decision,
and
Supervisor, Stores position.
After
he
was
not
Miller
was
selected
for
the
requested
the
(Id. ¶ 38.)
selected,
Plaintiff
opportunity to speak with Lovett about the outcome.
(See Emmett
Hawkins Dep. Oct. 23, 2008, 55:1-11, ECF No. 34-5) (“Hawkins
Dep. 1.”).)
Lovett referred Plaintiff to HR, in accordance with
MLGW standard operating procedures.
a
charge
(“EEOC”).
with
the
Equal
(Id.)
Employment
(See Ex. A 55:18-22.)
Plaintiff then filed
Opportunity
Commission
On April 14, 2008, the EEOC
determined that there was “reasonable cause” to believe that
Plaintiff had been denied the promotion because of his race.
(See Ex. M, ECF No. 34-20) (“EEOC Letter.”)
II.
Jurisdiction
Because Hawkins’ claims arise under Title VII, this Court
has
federal
question
jurisdiction.
See
28
U.S.C.
§§
1331,
1343(a)(4); Harper v. AutoAlliance Int’l, 392 F.3d 195, 201 (6th
Cir. 2004) (concluding that Title VII claims arise under federal
law).
III. Standard of Review
Under
Federal
Rule
of
Civil
Procedure
56,
on
motion
of
either party, the court “shall grant summary judgment 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.”
8
Fed. R. Civ. P. 56(a).
The moving party “bears the burden of
clearly and convincingly establishing the nonexistence of any
genuine [dispute] of material fact, and the evidence as well as
all inferences drawn therefrom must be read in a light most
favorable to the party opposing the motion.”
Kochins v. Linden-
Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); see Fed. R.
Civ.
P.
56(a).
demonstrating
opportunities
The
that
for
moving
the
party
satisfies
this
burden
having
had
sufficient
evidence
to
respondent,
discovery,
has
essential element of his case.
no
support
by
an
See Fed. R. Civ. P. 56(c)(2);
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989).
When
confronted
with
a
properly
supported
motion
for
summary judgment, the respondent must set forth specific facts
showing that there is a genuine dispute for trial.
Civ.
P.
56(c).
A
genuine
dispute
for
trial
See Fed. R.
exists
if
the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.
477 U.S. 242, 248 (1986).
See Anderson v. Liberty Lobby, Inc.,
The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the
material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
Mere reliance on the pleadings
is insufficient opposition to a properly supported motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
9
See
Instead,
the
nonmovant
claims.”
must
present
“concrete
evidence
supporting
his
Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d
934, 937 (6th Cir. 1989) (citations omitted); see Fed. R. Civ.
P. 56(c)(1).
search
the
The district court does not have the duty to
record
for
such
evidence.
See
Fed.
R.
Civ.
P.
56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989).
The nonmovant has the duty the identify specific
evidence in the record that would be sufficient to justify a
jury decision in his favor.
See Fed. R. Civ. P. 56(c)(1);
InterRoyal Corp., 889 F.2d at 111.
“Summary judgment is an
integral
part
as
designed
to
of
the
secure
determination
of
every
procedural shortcut.”
Federal
the
Rules
just,
action[,]
a
speedy,
rather
whole,
and
than
which
are
inexpensive
a
disfavored
FDIC v. Jeff Miller Stables, 573 F.3d
289, 294 (6th Cir. 2009) (internal quotation marks and citations
omitted).
IV.
Analysis
A. McDonnell Douglas
Title
“any
VII
individual
conditions,
or
forbids
with
employers
respect
privileges
of
to
from
his
discriminating
against
compensation,
terms,
employment,
because
of
such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000(e)-2(a)(1); Daniels v. Bd. Of Educ. Of Ravenna
City Sch. Dist., 805 F.2d 203, 206 (6th Cir. 1986).
10
A Title VII
violation
may
be
established
under
a
theory
of
disparate
treatment, where the employer “simply treats some people less
favorably than others because of their race, color, religion,
sex or national origin.”
alleges
that
MLGW
Daniels, 805 F.2d at 206.
violated
Title
VII
by
Plaintiff
selecting
an
“unqualified white female for the job of Supervisor, [S]tores[,]
even though [Plaintiff], a black male[,] was more qualified for
the [position],” and basing its employment decision solely on
Plaintiff’s race.
(See Compl. ¶¶ 29-30.)
Plaintiffs
they
that
may
been
Daniels,
have
805
F.2d
establish
at
victims
206-07
disparate
of
treatment
intentional
(citations
by
proving
discrimination.
omitted).
Disparate
treatment may be proven by direct or circumstantial evidence.
Chen
v.
Where,
Dow
as
Chem.
here,
Co.,
580
there
is
F.3d
no
394,
400
direct
(6th
Cir.
2009).
of
racial
evidence
discrimination, Plaintiff’s circumstantial evidence is analyzed
under
the
burden-shifting
framework
established
in
McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); accord Chen, 580
F.3d at 400 (citation omitted).
In Chen, the Sixth Circuit
interpreted McDonnell Douglas to mean that:
The burden is first on the plaintiff to demonstrate a
prima facie case of race discrimination; it then
shifts to the employer to offer a legitimate, nondiscriminatory explanation for its actions; finally,
the burden shifts back to the plaintiff to show
pretext-i.e. that the employer’s explanation was
fabricated to conceal an illegal motive.
11
Id. (citing Clay v. United Parcel Serv., Inc., 501 F.3d 695, 703
(6th Cir. 2007)).
A
plaintiff
must
establish
a
prima
facie
discrimination by a preponderance of the evidence.
of
Cmty.
Affairs
v.
(citations omitted).
Burdine,
450
U.S.
248,
case
of
Tex. Dep’t
253-54
(1981)
If the plaintiff’s employer articulates a
legitimate, nondiscriminatory reason for the adverse employment
action, the plaintiff must establish by a preponderance of the
evidence that the employer’s proffered reason is a pretext for
discrimination.
Id. at 254.
“On a motion for summary judgment,
a district court considers whether there is sufficient evidence
to
create
a
genuine
Douglas inquiry.”
dispute
at
each
stage
of
the
McDonnell
Macy v. Hopkins Cnty. Sch. Bd. Of Educ., 484
F.3d 357, 364 (6th Cir. 2007) (quoting Cline v. Catholic Diocese
of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)).
Plaintiff’s response to MLGW’s Motion for Summary Judgment
demonstrates
that
he
intends
to
rely
on
the
burden-shifting
framework established in McDonnell Douglas to prove disparate
treatment.
See Pl.’s Resp. in Opp’n to the Def.’s Mot. for
Summ. J. 13-26, ECF No. 34-1 (“Pl.’s Resp.”).)
B. Denial of Promotion for Supervisor, Stores Position
Plaintiff’s claim that MLGW discriminated against him by
failing to promote him to the Supervisor, Stores position does
12
not
survive
MLGW’s
Motion
for
Summary
Judgment.
Although
Plaintiff has met his burden of establishing a prima facie case
of disparate treatment, see Chen, 580 F.3d at 400, his proffered
evidence
is
insufficient
to
rebut
MLGW’s
legitimate,
discriminatory explanation for denying his application.
1.
non-
See id.
Hawkins Has Established a Prima Facie Case
Plaintiff must satisfy four criteria to establish a prima
facie of discrimination based on a failure to promote:
A prima facie case requires a plaintiff to show (1)
that he is a member of a protected class; (2) that he
applied and was qualified for a promotion; (3) that he
was considered for and denied the promotion; and (4)
other employees of similar qualifications who were not
members of the protected class received promotions.
Sutherland v. Mich. Dept. of Treasury, 344 F.3d 603, 614 (6th
Cir. 2003) (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1020-21
(6th Cir. 2000)).
“The burden of establishing a prima facie
case of disparate treatment is not onerous.”
at 253 (1981).
the
evidence
Burdine, 450 U.S.
“The plaintiff must prove by a preponderance of
that
she
applied
for
an
available
position
for
which she was qualified, but was rejected under circumstances
which give rise to an inference of unlawful discrimination.”
Id.
Plaintiff has satisfied his burden of proving a prima facie
case.
He is an African-American, a member of a protected class.
See McDonnell Douglas, 411 U.S. at 802; Vaughn v. Watkins Motor
13
Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002).
and
was
determined
Supervisor,
Stores.
to
be
(See
qualified
Def.’s
for
Statement
He applied for
the
¶¶
position
21,
30).
of
He
interviewed for, but did not receive, the Supervisor, Stores
promotion.
(See id. ¶ 30, 38.)
On May 2, 2006, Miller, a
Caucasian woman, received the promotion to Supervisor, Stores.
(Id. ¶ 38.)
Plaintiff has established a prima facie case of
disparate treatment based on failure to promote.
2.
MLGW
Has
Articulated
a
Legitimate,
Nondiscriminatory Reason for Failing to Promote
Plaintiff
Because Plaintiff has established a prima facie case, the
burden
shifts
to
nondiscriminatory
MLGW
reason
to
“articulate
for
the
some
legitimate,
employee’s
rejection.”
Burdine, 450 U.S. at 253; see also Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 142 (2000).
production,
credibility.
not
persuasion”
Sanderson,
530
and
U.S.
That burden is “one of
involves
at
Honor Ctr, 509 U.S. 502, 509 (1993)).
142
no
assessment
(citing
St.
of
Mary’s
“[O]nce the employer has
come forward with a nondiscriminatory reason for [its actions]
the plaintiff must produce sufficient evidence from which the
jury may reasonably reject the employer’s explanations.”
Manzer
v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th Cir.
1994).
14
An employer’s legitimate, nondiscriminatory reasons must be
“clear and reasonably specific,” and be supported by “admissible
evidence
which
would
allow
the
trier
of
fact
rationally
to
conclude that the employment decision [was] not motivated by
discriminatory
animus.”
Burdine,
450
U.S.
at
258;
see
also
White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). 6
MLGW’s
proffered
explanation
for
hiring
Miller
is
that,
both in her interview and on the job, she demonstrated greater
initiative and leadership than Plaintiff.
(See Nancy Miller
Department Interview Rec., ECF No. 29-18.)
Lovett, in her role
as Manager of the Transportation Department, observed Plaintiff
and Miller in various capacities, and concluded that Miller’s
work performance was exemplary.
ECF No. 29-8.)
[her]
toes
Miller met deadlines and “would keep [Lovett] on
about
things
[Lovett’s] job easy.”
was
more
(See Lovett Dep. 156: 18-23,
having
[she]
needed
to
do.
to
(Id. 156: 22-23.)
check
up
on
him,
[Miller]
made
With Plaintiff, “it
ask
him
for
things,
communicate the same information several times to get it done .
. . [There] were several instances that things did not get done.
It
just
made
observing
considered
my
both
their
job
tougher.”
candidates’
responses
(Id.
work
to
6
156:
18-24.)
performances
interview
After
and
having
questions,
Lovett
Plaintiff relies on Baxter. Although the facts underlying Baxter’s
discussion of pretext distinguish it from this case, see infra, Baxter’s
discussion of the employer’s legitimate, nondiscriminatory reasons is
helpful.
15
concluded
that
Nancy
Miller
was
position of Supervisor, Stores.
better
qualified
for
the
(Id. 157: 10-14.)
MLGW’s proffered reason is “facially legitimate and nonBaxter, 533 F.3d at 392.
discriminatory.”
that
Miller
had
demonstrated
Lovett concluded
“greater
initiative
leadership,” both in the interview and on the job.
and
Id.; see
also Baxter, 533 F.3d at 392 (noting that the selected candidate
“[w]as well-prepared for the interview with specific objectives
for turning around the region, was enthusiastic and demonstrated
confidence.”)
department.
and
Miller
had
managerial
experience
(See Lovett. Dep. 156: 2-5.)
energetic
in
her
interview,
in
the
She was enthusiastic
demonstrating
leadership
and
initiative. Plaintiff’s answers to certain interview questions
appeared
to
budgeting,
indicate
and
that
performing
he
other
disliked
preparing
administrative
reports,
tasks.
(See
Henning Dep. 98: 12-99: 3.); see also Baxter, 533 F.3d at 392
(the
unsuccessful
applicant
“did
not
interview
well,
.
.
.
demonstrated an inflexible management style, and did not present
a
persuasive
decided
that
plan
for
Miller
turning
was
the
around
more
the
region.”).
qualified
candidate,
MLGW
and
“[h]iring a more qualified candidate certainly suffices as a
legitimate,
promotion.
nondiscriminatory
rationale
for
denying”
a
Williams v. Columbus Metro. Hous. Auth., 90 F. App’x
870, 873 (6th Cir. 2004).
16
3.
MLGW’s Reason Is Not Pretextual
Because
Defendant
has
proffered
a
legitimate,
nondiscriminatory reason for failing to promote him, Plaintiff
must
rebut
Bartlett
that
v.
reason
Gates,
421
by
Fed.
offering
App’x
evidence
485,
490
of
(6th
pretext.
Cir.
2010)
(citing Grizzell v. City of Columbus Div. of Police, 461 F.3d
711,
719
(6th
Cir.
2006));
see
also
Chen,
580
F.3d
at
400
(citation omitted).
“To prove pretext, the plaintiff must introduce admissible
evidence to show ‘that the proffered reason was not the true
reason for the employment decision’ and that [discriminatory]
animus
was
the
determination.”
true
motivation
driving
the
employer’s
Myers v. U.S. Cellular Corp., 257 F. App’x 947,
954 (6th Cir. 2007) (quoting Barnes v. United Parcel Serv., 366
F.
Supp.
original).
2d
612,
616
(W.D.
Tenn.
2005))
(alteration
in
A plaintiff must demonstrate pretext in at least one
of three ways:
To raise a genuine issue of material fact on the
validity of an employer’s explanation for an adverse
job action, the plaintiff must show, again by a
preponderance of the evidence, either (1) that the
proffered reasons had no basis in fact; (2) that the
proffered reasons did not actually motivate the
action; or (3) that they were insufficient to motivate
the action.
17
Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir.
1996) (citation omitted).
A jury must be able reasonably to
reject an employer’s explanation.
Id. (citation omitted).
a. The Basis in Fact for MLGW’s Legitimate, Nondiscriminatory Employment Justification
To show that MLGW’s reason for failing to promote him has
no basis in fact, Plaintiff argues that his Bachelor’s Degree
makes him more qualified than Miller, that he was more qualified
for a completely unrelated job, and that he had ten years of
experience “in the job that he was competing for as supervisor
and
Nancy
Miller
not.” 7
did
(Pl.’s
Mem.
20.)
Plaintiff’s
arguments are not well taken.
1) Plaintiff’s Bachelor’s Degree
As
evidence
that
his
qualifications
were
superior
to
Miller’s, Plaintiff offers his Bachelor’s Degree from Christian
Brothers University.
His degree does not undermine the factual
basis of MLGW’s proffered reason.
Plaintiff did not receive his degree until May 12, 2006,
two
months
after
Plaintiff
Supervisor,
Stores
position.
had
unsuccessfully
(See
Diploma;
see
pursued
also
the
Def.’s
Statement ¶¶ 30, 37.)
When MLGW Human Resources determined the
relative
each
fitness
of
job
7
applicant,
Plaintiff’s
work
Plaintiff does not specifically state the grounds on which he attacks MLGW’s
legitimate, nondiscriminatory reason. The Court interprets Plaintiff’s
arguments as attempts to show that MLGW’s reason has no basis in fact or did
not actually motivate the employment decision.
See Kocsis, 97 F.3d at 883.
18
history, not his Bachelor’s Degree, qualified him for further
consideration.
qualified
(See
for
the
Henning
Dep.
Supervisor,
60:19-61:3)
Stores
(Plaintiff
position
based
on
was
his
journeyman-level experience).
Even if Plaintiff had successfully completed his degree by
the job posting date, that fact alone would not be sufficient to
survive
summary
management
retains
candidates,
employees,
judgment.
the
“It
right
particularly
as
long
as
to
is
choose
in
the
well-settled
from
selecting
reasons
for
.
.
among
.
that
qualified
management-level
its
choices
are
not
discriminatory; it is not the role of the court to question a
business’s
choice
among
qualified
candidates.”
Brennan
Tractor Supply Co., 237 Fed. App’x 9, 23 (6th Cir. 2007).
v.
The
Job Announcement made clear that a Bachelor’s Degree and work
experience were given equal weight in determining an applicant’s
qualifications.
Announcement.)
(See
Def.’s
Statement
¶
15;
see
also
Job
Miller’s more than 20 years “of closely related
work experience fulfill the work experience substitute for the
educational requirements.”
Brown v. City of Cleveland, 294 Fed
App’x 226, 232 (6th Cir. 2008); see also Ex. E, ECF No. 29-7.
Plaintiff’s Bachelor’s Degree is insufficient to show pretext.
2)
Assistant Manager of Stores
As additional evidence of pretext, Plaintiff notes Miller’s
inferior qualifications for Assistant Manager of Stores, a job
19
one level higher than supervisor, because she lacks a college
degree.
(See Pl.’s Mem. 20.)
The Assistant Manager of Stores
position
has
this
no
relevance
to
case.
Neither
candidate
interviewed for Assistant Manager, and there is no evidence in
the record to suggest that the position had any bearing on the
employment decision in this case.
lacked a college degree.
It is undisputed that Miller
A college degree was one of two ways
to qualify for the Supervisor, Stores position.
juxtaposition
of
his
college
education
and
Plaintiff’s
Miller’s
work
experience for an irrelevant job posting is “self-serving [and]
carr[ies] no evidentiary value when attempting to prove racial
discrimination
through
the
McDonnell-Douglas
analysis.
Nor
do[es] [it] sufficiently raise a genuine issue of material fact
to defeat summary judgment.”
Armstrong v. City of Milwaukee,
204 F. App’x 559, 563 (7th Cir. 2006) (citations omitted).
3)
Plaintiff
next
Plaintiff’s Work Experience in Stores
argues
that
he
has
more
than
ten
years
experience “in the job that he was competing for as supervisor
and Nancy Miller did not.”
(Pl.’s Mem. 20.)
This fact does not
create a genuine issue of material fact on the issue of pretext;
racial animus must be shown.
Geiger v. Tower Auto., 579 F.3d
614, 625 (6th Cir. 2009) (stating that an employer’s motivations
must be evaluated).
When comparing qualifications, Plaintiff’s
credentials must be “so significantly better” that no reasonable
20
employer
would
have
chosen
Miller.
Stores, 455 F.3d 612, 627 (6th
Bender
Cir. 2006).
v.
Hecht’s
Dep’t
Although Plaintiff
served as a supervisor for more than a decade, Miller had more
than twenty years experience in the Stores division when she
applied for the supervisor position.
(“Miller Application”).)
(See Ex. E, ECF No. 29-7)
Plaintiff’s decade of experience as a
supervisor does not make him “so significantly” better qualified
as to survive summary judgment.
b. MLGW’s Proffered Reason Actually Motivated Its
Decision
Plaintiff
also
argues
that
MLGW’s
proffered
reason
for
failing to promote him did not actually motivate that decision.
Plaintiff
attempts
to
create
a
dispute
of
material
fact
by
attacking the interview process as “inherently subjective and
thus easy to manipulate [to] mask the interviewer’s true reasons
for making the promotion decision.”
See Kocsis, 97 F.3d at 883;
see also Pl.’s Mem. 20.
A plaintiff arguing this prong “admits the factual basis
underlying
the
employer’s
proffered
explanation
and
further
admits that such conduct could motivate” the employer’s conduct,
but
“attempts
to
indict
the
credibility
of
his
employer’s
explanation by showing circumstances which tend to prove that an
illegal
motivation
defendant.”
was
more
likely
than
that
offered
by
the
Manzer v. Diamond Shamrock Che Co., 29 F.3d 1078,
21
1084 (6th Cir. 1994) (emphasis in original).
Although Plaintiff
advances several assertions to impugn the interview process, he
does
not
evidence
cite
that
any
relevant
would
authority
demonstrate
or
provide
pretext.
The
specific
Plaintiff’s
arguments can therefore be dismissed in turn.
1) Collusion Between Henning and Lovett
Plaintiff
reduce
suggests
Plaintiff’s
interviews.
that
Lovett
scores
and
after
(Pl.’s Mem. 20.)
Henning
the
colluded
completion
of
to
the
Plaintiff further argues that
Lovett changed her interview notes to give Plaintiff a lower
score on two categories, and that—but for those alterations—his
scores would have exceeded Miller’s.
The
record
supports
a
(Id.)
different
conclusion.
“The
employer’s motivation, not the applicant’s perceptions, or even
an objective assessment [] of what qualifications are required
for
a
particular
is
key
to
the
discrimination
Geiger, 579 F.3d at 625 (internal quotation marks
inquiry.”
omitted).
collusion
position,
Plaintiff
between
identifies
Henning
and
no
Lovett,
“concrete
instead
attacking
entire process as a “sham for discrimination.”
889 F.2d at 111; see also Pl.’s Resp. 21.
evidence”
of
the
See Interoyal,
Although Lovett
altered her interview notes to give Plaintiff a lower score in
two
areas,
Plaintiff’s
(see
scores
Hawkins
in
the
Evaluation
areas
22
of
3),
Henning
“Problem
increased
Solving”
and
“Motivation” from 10 to a total of 20 in each category.
Hawkins Evaluation 2.)
after
both
(See
That Henning and Miller collaborated
applicants’
interviews
does
not,
without
specific
Plaintiff
contends
evidence, create a dispute of material fact.
Plaintiff’s
math
is
also
incorrect.
that, but for these interview alterations, his scores would have
exceeded Miller’s. (Pl.’s Mem. 20.)
It is undisputed, however,
that Miller received 400 of 420 points from both Henning and
Lovett.
(See Miller Evaluation 1; Miller Evaluation 2.)
It is
also undisputed that Plaintiff’s interview scores ranged from
260 to 280, and that any and all alterations to Plaintiff’s
scores did not exceed 20 points.
Hawkins
Evaluation
1.)
Therefore,
(See Hawkins Evaluation 2;
even
after
adding
the
20
points to Plaintiff’s interview scores, his overall total would
not have exceeded 300 points.
2) Plaintiff’s Qualifications Argument
Plaintiff contends that his credentials were superior to
Miller’s, and if they were not superior, they were at least
equal.
(See
Pl.’s
Mem.
20
superior to Millers[’].”).)
(“Hawkins[’]
qualifications
are
A plaintiff’s “perception of his
competence, and the incompetence of those competing against him,
is irrelevant.”
Brennan, 237 Fed. App’x at 23 (citing Wrenn v.
Gould, 808 F.2d 493, 502 (6th Cir. 1987).
“there
is
little
or
no
other
23
In a case where
probative
evidence
of
discrimination,
to
survive
summary
judgment
the
rejected
applicant’s qualifications must be so significantly better than
the
successful
applicant’s
have
qualifications
chosen
the
that
latter
no
reasonable
employer
would
applicant
over
the
former.”
Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th
Cir. 2006).
“[T]he probative value of qualifications evidence in terms
of demonstrating pretext must be balanced against the principles
that employers are generally ‘free to choose among qualified
candidates.’”
Id.
at
626
(quoting
Wren,
808
F.2d
at
502).
Whether qualifications evidence will be “sufficient to raise a
question
of
fact
as
to
pretext
will
depend
on
whether
plaintiff presents other evidence of discrimination.”
a
Id.
Nancy Miller had over twenty years experience in the Stores
(See Miller Application.)
division when she applied.
was selected
for
her
initiative,
her
ability
to
Miller
develop
and
motivate employees, her proven conflict resolution skills, her
demonstrated
ability
responsibilities,
personnel
Those
and
policies.
facts
to
follow
her
ability
(See
Nancy
establish
that
position;
to
through
execute
Miller
Miller
was
Supervisor,
Stores
therefore,
select her.
Dep.
MLGW
3) Culture of Discrimination
assigned
operational
Interview
qualified
See Bender, 455 F.3d at 626.
24
on
was
and
Rec.)
for
the
“free”
to
Plaintiff attempts to establish that MLGW has a “culture of
discrimination.”
(See Pl.’s Mem. 23.)
He argues that MLGW has
“a history of developing any excuse to non select [sic] the most
qualified minority person to the benefit of non minorities.”
(See id. at 24.)
Plaintiff
contends,
without
providing
concrete
evidence,
that Lovett has a “history of discriminating against blacks.”
(See id. at 1.)
Plaintiff asserts that Lovett was aware that
some employees complained that she was racist.
Plaintiff
does
not
provide
the
names
of
(See id. at 4.)
those
accusers,
the
circumstances surrounding the accusations, or the time during
which Lovett heard the rumors.
Plaintiff fails to provide a
“clear connection between the[se] general statements of racism”
and MLGW’s decision not to promote him.
Thomas v. Union Inst.,
98 Fed. App’x 462, 465 (6th Cir. 2004).
Because “isolated and
ambiguous
irrelevant
comments
and
are
too
prejudicial”
abstract,
to
support
in
a
addition
finding
to
of
being
racism,
Plaintiff’s assertion that Lovett is a racist, or was reputed to
be one, does not create a dispute of material fact to survive
summary judgment.
See Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 355 (6th Cir. 1998); see also Thomas, 98 Fed.
App’x at
465
(finding
that
statements
defendants were racist were inadmissible).
25
offered
to
prove
that
Plaintiff next asserts that Lovett created a “culture of
discrimination” by failing to promote an African-American to a
position higher than Foreman before 2007.
(See Pl.’s Resp. 4.)
Plaintiff fails to support that assertion with relevant facts,
making his offer of proof incomplete.
See Farber v. Massillon
Bd. Of Ed., 917 F.2d 1391, 1397 (6th Cir. 1990) (rejecting a
claim
of
discrimination
insufficient evidence).
because
the
plaintiff
proffered
Without comprehensive data showing, at
a minimum, “the total number of [supervisor-level] and above
positions” at MLGW and the total number of African-Americans who
applied for those positions, in addition to the raw number of
African-American supervisors, the assertion that Lovell failed
to promote an African-American before 2007 is insufficient to
support an inference of discrimination.
See Martinez v. Ltd.
Brands, Inc, 200 Fed. App’x 571, 575 (6th Cir. 2006) (rejecting
plaintiff’s
“anecdotal
“statistical
evidence”
that
evidence”
there
because
were
two
he
provided
Hispanics
at
only
the
director level).
Plaintiff ignores Lovett’s personal invitations to AfricanAmerican employees to become part of her succession plan for
supervisors,
which
each
proposed
candidate
Lovett Trans. 205:21-207:1, ECF No. 40-2.)
that
she
asked
at
least
two
declined.
(See
Lovett testified
African-American
employees,
Sam
Carter and Brenda Turner, to become part of her succession plan
26
when
Plaintiff
applied
(Id. at 211:11-22.)
that
Lovett
for
the
Supervisor,
Stores
position.
That evidence undermines Plaintiff’s claim
contributed
to
a
“culture
of
discrimination”
by
failing to promote African-American employees.
Plaintiff contends MLGW’s failure to promote him in 2001 is
evidence of its “culture of discrimination.”
That argument is not well-taken.
(Pl.’s Resp. 4.)
Plaintiff’s 2001 application
for Supervisor, which occurred more than four years before his
application in this action, is not germane.
Plaintiff never
complained that he was discriminated against in 2001 and did not
file a charge with the EEOC.
Insofar as Plaintiff seeks to
assert a claim based on conduct in 2001, that claim would be
time-barred.
See Tartt v. City of Clarksville, 149 Fed App’x
456, 461 (6th Cir. 2005) (holding that a plaintiff’s failure to
file
an
EEOC
charge
within
300
days
of
the
alleged
discrimination rendered the claims untimely).
c. EEOC Determination of Probable Cause
Plaintiff relies on the EEOC’s determination of probable
cause
to
establish
a
genuine
issue
of
material
fact.
His
reliance is misplaced.
The district court has the discretion to decide whether “to
accept
the
EEOC’s
final
investigation
report”
as
evidence.
Williams v. Nashville Network, 132 F.3d 1123, 1129 (6th Cir.
1997).
Although an EEOC probable cause determination is “more
27
tentative in its conclusions,” and thus less prejudicial to a
defendant, “the district court has broad discretion to determine
matters of relevance.”
See id.; see also Black v. Ryder/P.I.E.
Nationwide, Inc., 15 F.3d 573, 587 (6th Cir. 1994).
The EEOC’s probable cause determination states that “record
evidence
disclosed
that
[Plaintiff’s]
qualifications
were
superior compared to the white successful candidate’s” based on
Plaintiff’s twenty years of work experience compared to Miller’s
ten.
(See
Ex.
M,
ECF
No.
34-20.)
It
is
undisputed
Plaintiff had more work experience than Miller.
that
Disagreements
over candidate qualifications, without additional evidence of an
employer’s
motivations,
discrimination.
are
insufficient
to
prove
racial
See Martinez, 200 Fed. App’x at 575 (noting
that mere determinations of qualifications are insufficient to
prove
pretext).
The
EEOC’s
determination
does
not
create
a
dispute of material fact that can survive summary judgment.
d. Plaintiff’s Reliance on Risch
Plaintiff contends that the holding in Risch v. Royal Oak
Police Dept., 581 F.3d 383 (6th Cir. 2009), warrants a denial of
summary judgment.
Plaintiff’s interpretation of Risch is overly
broad.
In Risch, the Sixth Circuit reversed the district court’s
grant of summary judgment, and held that a defendant’s proffered
legitimate,
nondiscriminatory
reason
28
was
pretextual.
The
Department’s
reason
for
failing
to
promote
Risch,
that
it
promoted superior applicants who outscored Risch on performance
reviews and examinations, did not align with the facts.
391.
Id. at
Risch had been denied promotions on several occasions in
favor of Caucasian males who had lower composite scores on the
Department’s employment matrix.
See id. at 392.
The plaintiff in Risch presented specific evidence showing
that male officers “frequently made degrading comments regarding
the capabilities of female officers, express[ing] the view that
female officers would never be promoted to command positions.”
Id.
Risch
also
provided
specific
testimony
showing
Id. at
supervisors “gave all the plum assignments” to males.
393.
that
On these facts, the Sixth Circuit found a “discriminatory
atmosphere” in which men were given preferential treatment.
The
facts
warranting
reversal
in
Risch
are
not
in
Id.
the
instant case.
Unlike the plaintiff in Risch, Plaintiff did not
score
than
Miller
Risch
also
higher
plaintiff
in
identified
pervasive
throughout
the
“rumor[s],
conclusory
Giles
2004).
v.
Norman
on
the
provided
derogatory
workplace.
Noble,
evidence
and
Fed.
matrix.
that
and
App’x
here
has
subjective
890,
The
specifically
discriminatory
Plaintiff
allegations,
Inc.,
employment
895
behavior
provided
beliefs.”
(6th
Cir.
For those reasons, Risch does not control, and Plaintiff
is not entitled to summary judgment.
29
e. Plaintiff’s Reliance on Baxter
Plaintiff contends that Baxter warrants a denial of summary
judgment because the evidence supporting pretext in Baxter is
similar to the evidence here.
reliance is misplaced.
(Pl.’s Mem. 19-20.)
Plaintiff’s
In Baxter, the Sixth Circuit reversed a
district court’s entry of summary judgment because there was
specific evidence of pretext.
533 F.3d at 394.
The plaintiff,
an African-American male with several years of sales experience,
was
denied
possessed
a
promotion
“no
prior
in
sales
favor
of
a
Caucasian
experience
as
a
female
Baxter
who
sales
Id. at 395.
representative.”
The plaintiff’s interview created an issue of material fact
on the issue of pretext.
Although Baxter supervisors described
the plaintiff as “aggressive” during his interview, the Sixth
Circuit
found
“questions
that
about
the
plaintiff’s
Baxter’s
lack
of
behavior
stemmed
workforce
particularly within its management positions.”
from
diversity,
Id.
Plaintiff
also presented specific evidence “showing discriminatory animus
toward
African-Americans
Id. at 385.
a
black
on
the
part”
of
Baxter
supervisors.
Management admitted that “no one wants to work with
man”
during
a
workplace
diversity
discussion,
and
supervisors were known to refer to African-American employees as
“that black [person]” instead of by name or title.
30
Id.
The
plaintiff
management
in
experience
Baxter
from
a
also
had
previous
significant
sales
position
prior
with
Johnson & Johnson and an MBA, whereas the selected female had no
experience in managing sales.
Id. at 394.
Baxter selected the
Caucasian candidate over the plaintiff, although the successful
candidate
“admitted
that
she
found
it
difficult
subordinates while in a managerial role.”
Baxter
is
distinguishable.
The
to
confront
Id. at 395.
successful
candidate
in
Baxter had no sales experience before her promotion.
Miller had
twenty years of experience in the Stores division.
Miller was
also the acting Supervisor throughout the interview process, and
Lovett
observed
Plaintiff’s
plaintiff’s
Miller’s
Bachelor’s
MBA
in
success
Degree
Baxter.
in
is
The
that
position
not
analogous
Supervisor,
firsthand.
Stores
to
the
position
required a degree or work experience, and a Bachelor’s Degree
does not create an issue of material fact.
Plaintiff
did
not
graduate
until
two
Even if it did,
months
after
Miller’s
selection.
The “culture of discrimination” in Baxter is not present in
this case.
racism,
Plaintiff presents unsubstantiated allegations of
whereas
the
plaintiff
evidence of derogatory comments.
survive summary judgment.
31
in
Baxter
presented
concrete
Rumors are insufficient to
Plaintiff
cannot
demonstrate
by
a
preponderance
of
the
evidence that MLGW’s legitimate, non-discriminatory reason has
no basis in fact, that MLGW’s proffered reason did not actually
motivate its actions, or that MLGW’s reason was insufficient to
motivate its decision to hire another.
883 (citation omitted).
See Kocsis, 97 F.3d at
Therefore, Plaintiff has not raised a
genuine issue of material fact on the issue of pretext, and his
claim cannot survive MLGW’s Motion for Summary Judgment.
See
id.
V.
Conclusion
For the foregoing reasons, the Court GRANTS MLGW’s Motion
for Summary Judgment.
So ordered this 1st day of December, 2011.
s/ Samuel H. Mays, Jr.______
SAMUEL H. MAYS, JR
UNITED STATES DISTRICT JUDGE
32
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