White v. Columbus Metro , 429 F.3d 174 ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0440p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellant, -
DAWN WHITE,
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No. 03-4219
v.
,
>
COLUMBUS METROPOLITAN HOUSING AUTHORITY, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 01-00836—George C. Smith, District Judge.
Argued: November 5, 2004
Decided and Filed: November 14, 2005
Before: MOORE and GIBBONS, Circuit Judges; MILLS, District Judge.*
_________________
COUNSEL
ARGUED: Mark S. Granger, GRANGER & BIGGERMAN, Columbus, Ohio, for Appellant.
Robert Garrett Cohen, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for Appellee.
ON BRIEF: Mark S. Granger, GRANGER & BIGGERMAN, Columbus, Ohio, for Appellant.
Robert Garrett Cohen, John Lowe IV, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for
Appellee.
GIBBONS, J., delivered the opinion of the court, in which MILLS, D. J., joined. MOORE,
J. (pp. 11-12), delivered a separate opinion concurring in the judgment.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Dawn White, an employee of Columbus
Metropolitan Housing Authority (“CMHA”), applied and was rejected for the position of CMHA’s
Manager of Safety and Crime Prevention. White brought suit against CMHA alleging that she was
not selected for the position because of her gender, in violation of Title VII, 42 U.S.C. § 2000e et
seq. and Ohio Revised Code § 4112.02. She also asserted a claim of intentional infliction of
emotional distress under Ohio law. The district court granted CMHA’s motion for summary
*
The Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by
designation.
1
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 2
judgment, finding that (1) White failed to present any evidence of direct discrimination; (2) White
failed to present evidence sufficient to meet her prima facie burden using circumstantial evidence;
(3) CMHA had proffered a legitimate, nondiscriminatory reason for failing to hire White; and
(4) White failed to show that CMHA’s proffered reason was pretextual.
For the following reasons, we affirm the district court’s grant of summary judgment in favor
of CMHA.
I.
CMHA is a public housing authority created pursuant to Ohio Revised Code § 3735.27 et
seq. for the purpose of “provid[ing] safe and sanitary housing accommodations to families of low
income.” Ohio Rev. Code § 3735.31. CMHA operates and manages housing communities in
Franklin County and employs several hundred employees to manage them. Among these employees,
CMHA employs its own safety and crime prevention personnel to ensure a safe environment within
its communities.
In late August of 1998, the position of Manager of Safety and Crime Prevention for CMHA
became available. The Manager of Safety and Crime Prevention coordinates crime prevention and
safety programs throughout CMHA, supervises the CMHA security personnel, investigates any
allegations of criminal activity on CMHA property, and maintains relations with local law
enforcement agencies. CMHA posted a notice of the job opening internally and also advertised the
position in the local newspaper. The job description listed the specific qualifications sought for the
position, including a bachelor’s degree (with a stated preference for Criminal Justice majors),
knowledge of investigative, legal, and safety procedures, seven to ten years of experience in the
safety/investigative field with prior supervisory experience, and strong oral and written
communication skills. The internal job posting set the application deadline as September 8, 1998.
White, an employee of CMHA, submitted an application for the position on September 3,
1998. White graduated from Bowling Green State University in 1978 with a major in sociology and
a minor in psychology. White had been employed by CMHA since 1991 as a Safety and Crime
Prevention Coordinator. In response to White’s application, CMHA sent her a letter on November
4, 1998, indicating that she was not chosen for an interview, as the hiring committee had “decided
to continue [the] search for the most qualified candidate for the position.” CMHA ultimately hired
Robert Walker to fill the position of Manager of Safety and Crime Prevention. Walker was an
external candidate with more than seventeen years of experience in crime prevention and safety
program coordination as a military police officer in the United States Army, a private investigator,
and in various positions, including security supervisor, at Faith Missions, Inc., a homeless shelter.
On August 30, 2001, White filed a complaint against CMHA, claiming that CMHA
unlawfully discriminated against her on the basis of her sex in violation of Title VII, 42 U.S.C.
§ 2000e and Ohio Revised Code §§ 4112.02 and 4112.99. White also asserted a state law claim for
intentional infliction of emotional distress. Both CMHA and White filed motions for summary
judgment. The District Court for the Southern District of Ohio granted defendant’s summary
judgment motion and denied plaintiff’s summary judgment motion. The district court found that
White failed to produce evidence sufficient to establish a case of sex discrimination using direct
evidence. The district court also found that White’s claim of sex discrimination under the
McDonnell-Douglas test used for circumstantial evidence failed because it found that Walker was
better qualified than White as a matter of law, thus making it impossible for White to meet the fourth
element of the McDonnell-Douglas prima facie case requirement. Further, the district court found
that CMHA had produced a legitimate non-discriminatory reason for its decision not to hire White
for the position, and found that White was unable to satisfactorily rebut CMHA’s proffered reason.
The district court, having ruled against White on her federal claims, declined to exercise
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 3
supplemental jurisdiction over her state law claims. On September 5, 2003, White timely filed a
notice of appeal.1
II.
This court reviews a district court’s decision granting summary judgment de novo. DiCarlo
v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). Under Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is appropriate if “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.’” Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir. 2003) (quoting Fed. R. Civ. P.
56(c)). A dispute over a material fact is “‘genuine’” if “a reasonable jury could return a verdict for
the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing
the district court’s decision granting summary judgment, this court draws all justifiable inferences
in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
A plaintiff can establish a claim of sex discrimination under Title VII by producing either
direct or circumstantial evidence of discrimination. DiCarlo, 358 F.3d at 414. “[D]irect evidence
is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least
a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales
Corp., 176 F.3d 921, 926 (6th Cir. 1999). Once the plaintiff has produced credible direct evidence,
the burden shifts to the employer to show that it would have taken the employment action of which
the plaintiff complains even in the absence of discrimination. Id.
When a plaintiff proceeds on her claim using circumstantial evidence, she bears the burden
of establishing a prima facie claim of discrimination under the tripartite McDonnell-Douglas
framework. See DiCarlo, 358 F.3d at 414 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)). Once the plaintiff establishes a prima facie claim, the burden shifts to the defendant
to proffer a legitimate, non-discriminatory reason for the employment decision at issue. Seay v.
Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003). If the defendant is able to meet this burden,
the plaintiff must establish that the defendant’s stated reason is mere pretext for its true
discriminatory motives. Id.
A.
On appeal, White claims that the district court erred in finding that she failed to produce any
direct evidence of discrimination as a matter of law. White urges that two comments made by two
different members of the interview committee satisfactorily establish a claim of direct
discrimination.
First, White cites the statement that Darryl Miles, a member of the interview committee,
allegedly made to White in responding to her inquiry as to why she was not selected for the position.
In this conversation, Miles allegedly stated that “[the hiring committee] wanted a grass roots guy
. . . [a]nd that Mr. Walker interviewed well.” White asserts that the phrase “grass roots guy”
establishes a claim of direct discrimination, because the statement indicates that the hiring
1
Another female internal employee who applied and was not selected for the position of Manager of Safety and
Crime Prevention, Tonya Williams, also sued CMHA for sex discrimination under Title VII. The district court granted
CMHA’s motion for summary judgment in that case on July 16, 2002. A panel of the Sixth Circuit affirmed the district
court’s grant of summary judgment in all respects in an unpublished opinion on February 2, 2004. Williams v. Columbus
Metro. Hous. Auth., 90 Fed. Appx. 870 (6th Cir. 2004).
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 4
committee was looking exclusively for a male candidate to fill the position. The district court
determined that, in this context, the word “guy” was gender-neutral.
We find that Miles’ alleged statement, standing alone, does not constitute direct evidence
of discrimination. Isolated and ambiguous comments are insufficient to support a finding of direct
discrimination. Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993). The comment at
issue occurred after Walker had already been selected to fill the position. This comment, which is
fairly innocuous under any set of circumstances, does not appear to be a statement indicating that
the committee was biased toward men or unwilling to consider a female to fill the position, as White
claims. Rather, this statement, allegedly made in the course of Miles’ explanation to White of why
Walker was selected for the position, appears to be a description of Walker himself. The comment
could easily be understood as one reason that Walker was particularly suited to fill the position.
Because the evidence, if believed, does not “require[] the conclusion that unlawful discrimination
was at least a motivating factor in the employer’s actions,” see Jacklyn, 176 F.3d at 926, the
evidence does not suffice to establish a claim of sex discrimination using direct evidence.
White identifies a second comment which she asserts provides direct evidence of her claim
of sex discrimination. White points to the deposition testimony of James Profitt, an employee of
CMHA. According to Profitt, Bob Thomas, a member of the hiring committee, encouraged Profitt
to apply for the position of Manager of Safety and Crime Prevention. Profitt, who had not
previously considered applying for the position because he neither was interested nor felt qualified
for the position, stated that Thomas encouraged him to apply because “he felt that [Profitt] was a
good man and [Thomas] didn’t want to hold a good man back.” White argues that this statement
is “in and of itself . . . direct evidence of CMHA’s intent to fill the managerial position with a male.”
This comment, as well, fails to constitute direct evidence of sex discrimination. First, as the
district court noted, this casual comment made to an employee incorporating a “relatively common
phrase,” cannot, in context, “reasonably be interpreted as an indication of an intent to discriminate
on the basis of sex.” As the district court noted, the comment is ambiguous. See Phelps, 986 F.2d
at 1025 (noting that ambiguous comments do not constitute direct evidence of discrimination).
Further, even if the comment did in some way evidence discriminatory intent, it fails to constitute
direct proof of sex discrimination because “[t]he critical inquiry [in a sex discrimination case] is
whether gender was a factor in the employment decision at the moment it was made.” Price
Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989). White cannot establish any link between this
comment and the decision of the hiring committee not to hire her for the position. As such, the
statement is not direct evidence of sex discrimination against White.2
B.
With regard to White’s claim of discrimination using circumstantial evidence, the district
court found that (1) White failed to produce sufficient evidence to meet her prima facie burden of
sex discrimination, (2) CMHA produced a legally sufficient reason for deciding not to hire White,
and (3) White was unable to refute the CMHA’s proffered reason by establishing that the reason was
pretextual. On appeal, White claims that the district court erred in its determination in several ways.
2
White argues that this statement made by Thomas should be afforded extra weight because of Thomas’s
alleged history of sexual harassment against female employees. It is uncertain that these allegations of past sexual
harassment of other female CMHA employees would be admissible for purposes of proving gender discrimination in
White’s case. However, even assuming that evidence of such allegations is admissible, it does not succeed in
strengthening White’s direct evidence claim of sex discrimination. Because these allegations are entirely divorced from
CMHA’s decision not to hire White for the position, they cannot constitute direct evidence of sex discrimination with
respect to White’s claim. As such, they should not be considered by this court in examining Thomas’s statement to
Profitt.
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 5
1.
In order to survive summary judgment on a claim of sex discrimination using circumstantial
evidence, the plaintiff must produce evidence sufficient to meet her prima facie burden under the
four-prong test initially developed in McDonnell Douglas. In a failure to promote employment
discrimination case, the Sixth Circuit has modified the elements of the test to fit the specific context.
Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000). Under Nguyen, which is the
governing precedent, a plaintiff with a discrimination claim based on a failure to promote must
demonstrate that (1) she is a member of a protected class; (2) she applied for and was qualified for
a promotion; (3) she was considered for and was denied the promotion; and (4) an individual of
similar qualifications who was not a member of the protected class received the job at the time
plaintiff’s request for the promotion was denied. Id. at 562-63. See also Allen v. Mich. Dep’t of
Corr., 165 F.3d 405, 410 (6th Cir. 1999) (employing above-cited test in the failure to promote
context); Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1095 (6th Cir. 1996) (same); Brown v.
Tenn., 693 F.2d 600, 603 (6th Cir. 1982) (same).
The district court employed the test set forth in Farmer v. Cleveland Public Power, 295 F.3d
593, 603 (6th Cir. 2002) and Roh v. Lakeshore Estates, Inc., 241 F.3d 491, 497 (6th Cir. 2001),
which requires that the plaintiff in a failure to promote discrimination case show that: (1) the
plaintiff is a member of the protected class; (2) the plaintiff applied for and was qualified for the
desired position; (3) she was considered but not selected for the position; and (4) the3position either
remained open or was given to a less qualified non-member of the protected class. Farmer, 295
F.3d at 603; Roh, 241 F.3d at 497. While the test of Farmer and Roh seems much like the Nguyen
test, its fourth prong differs and invites a close comparison of the plaintiff’s qualifications and those
of the individual who actually received the position.
White urges this court to decline to follow the Farmer/Roh test, and rather to follow the test
employed in Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506, 515 (6th Cir. 2003).
In a footnote in the Anthony opinion, the court acknowledged the test employed in Roh and Farmer,
but “decline[d] to adopt the “less-qualified” language used in Farmer and Roh because it deviates
from prior precedent.” Anthony, 339 F.3d at 515 n.10. The Anthony test and the Farmer/Roh test
employ the same first three prongs, but the fourth prong of the Anthony test instead requires that the
plaintiff prove that “a similarly-situated person who was not in the plaintiff’s protected class
received the job.” Id. at 515. The articulation of the test in Anthony, while purportedly a return to
the Nguyen standard, also uses slightly different language and imports the “similarly situated”
language frequently used in other prima facie case contexts into the failure to promote test.
We agree with the Anthony court that the test employed in Farmer and Roh deviates from
prior precedent and therefore should not be used. See Habich v. City of Dearborn, 331 F.3d 524,
530 n.2 (6th Cir. 2003) (“When an opinion of this court conflicts with an earlier precedent, we are
bound by the earliest case.”); Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001) (same).
We find, however, that Nguyen sets forth the proper standard and that, to the extent that it differs
from the Anthony test, Nguyen, the earlier precedent, represents the law of the circuit. In any event,
the district court erred in relying on the Farmer/Roh test.
3
The Farmer/Roh alternative means of satisfying the fourth prong–by showing that the position remained
open–is an apparent reference to McDonnell Douglas Corp., 411 U.S. at 792, in which the Supreme Court established
that the fourth prong of the prima facie case for discrimination may also be satisfied by showing “that, after [the
plaintiff’s] rejection, the position remained open and the employer continued to seek applicants from persons of
complainant’s qualifications.” Id. at 802. While this alternative means remains available, it was inapplicable in Nguyen
and in Farmer and Roh and is inapplicable here. Thus, we do not discuss it further in our analysis.
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 6
White, as a woman, is a member of a protected class, and thus satisfies the first element.
White applied for the position of Manager of Safety and Crime Prevention of CMHA, and CMHA
does not dispute that she was minimally qualified for the position. Thus, White satisfies the second
element of her prima facie case. White was considered and ultimately was not selected for the
position, thus satisfying the third element.4
As for the fourth prong, White contends that this court may not compare her qualifications
with those of Robert Walker, the person ultimately selected for the position. Rather, White asserts
that all that was required of her to satisfy the fourth prong of her prima facie burden was a showing
that the position went to someone outside her protected class. Because Walker is male, White
contends that she has satisfactorily satisfied her prima facie burden. Relying on the Anthony
“similarly situated” prong, White contends that because she and Walker “both applied for the same
position and were evaluated by the same decision makers,” they possessed similar qualifications and
thus White has presented enough evidence to satisfy her prima facie burden.
White’s contentions are incorrect. Under Nguyen, it is insufficient for a plaintiff in a failure
to promote sex discrimination case merely to point to a man who received the job in satisfying the
fourth prong. Further, White’s assertion that she satisfies her prima facie burden because she is
similarly situated to Walker by virtue of the fact that they applied for the same position and their
applications were reviewed by the same committee fundamentally misconceives the concept of the
fourth prong of the prima facie requirement. We hold that in order to satisfy the fourth prong of the
prima facie burden in a failure to promote case, it is incumbent upon the plaintiff to establish that
she and the non-protected person who ultimately was hired for the desired position had similar
qualifications. See Williams v. Columbus Metro. Hous. Auth., 90 Fed. Appx. 870, 873 (6th Cir.
2004); Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003); Nguyen, 229 F.3d
at 562-63.
In holding that such a comparison is necessary in order for White to meet her prima facie
burden, we are mindful of the fact that prior Sixth Circuit case law warns against conflating the first
(prima facie case) and second (articulation of a legitimate non-discriminatory reason) steps in the
McDonnell-Douglas analysis. See Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 584-85 (6th
Cir. 2002); Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir. 2000). White
contends that this precedent precludes this court from engaging in a comparison of her qualifications
with those of Walker, because she argues that doing so would be considering CMHA’s proffered
legitimate non-discriminatory reason at the first rather than the second step of the McDonnell
Douglas framework in violation of this principle. However, the case law indicates that courts
engage in impermissible consideration of the defendant’s proffered legitimate non-discriminatory
reason during the first step of the McDonnell Douglas analysis when they cite the defendant’s
proffered reason in finding that the plaintiff is not 5qualified for the position and thus has failed to
meet the second prong of the prima facie analysis. In considering whether a plaintiff is qualified
and thus meets the second prong of her prima facie burden, the case law is clear that “[a] court must
evaluate whether a plaintiff established his qualifications independent of the employer’s proffered
nondiscriminatory reasons for discharge . . . [and] be careful not to conflate the distinct stages of the
McDonnell Douglas test.” Cicero, 280 F.3d at 585 (citing Cline, 206 F.3d at 660-61).
4
While White argues that she was not considered for the position because she was not granted an interview and
neither the human resources employees who initially screened applications for minimum qualifications nor the members
of the interviewing committee could remember reviewing her resume, we agree with the district court’s reasoning that
“[White] was considered at some stage of the hiring procedure or she would have not received the rejection letter.”
5
In light of the fact that CMHA concedes that White is minimally qualified for the position, White is able to
meet the second prong of the test without an independent review of White’s qualifications.
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 7
The Cicero/Cline directive regarding the court’s considerations of the plaintiff’s
qualifications in connection with the second prong of the prima facie burden does not preclude this
court from examining the qualifications of both Walker and White in determining whether White
has satisfied the fourth prong of her prima facie case. Just as the case law directs us to conduct a
review of the plaintiff’s qualifications independent of the employer’s proffered non-discriminatory
reason in considering the second prong, the case law is equally clear that, in order to satisfy the
fourth prong of her prima facie burden, the plaintiff must show that the position went to a person
outside the protected class with similar qualifications.6 See, e.g., Nyugen, 229 F.3d at 562; see also
Collins v. Tower Auto., Inc., 56 Fed. Appx. 226, 227 (6th Cir. 2003) (noting that the district court
was in error in relying on the defendant’s proffered reason in finding the plaintiff to be unqualified,
as doing so conflated the second element of the prima facie case with the requirement that the
employer bring forward a legitimate reason for the adverse employment action, but finding that the
district court’s improper reliance did not change the outcome, because the plaintiff “failed to
establish that any comparable non-protected person was treated better than he was”) (emphasis
added); Anthony, 339 F.3d at 516 (comparing the qualifications of the plaintiff and the person who
was selected for the position in a failure to promote case in determining that plaintiff had met her
prima facie burden); Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir. 2002) (“Under
the fourth prong, because this is a failure to promote case, plaintiff must show that the employer
treated differently employees who were similarly situated but not members of the protected group.”)
(citation and internal quotation marks omitted).
Some comparison between Walker and White is therefore necessary in considering the fourth
prong of the prima facie case. Engaging in such a comparison does not impermissibly conflate the
two stages of the McDonnell Douglas test, for just as the court must independently review the
plaintiff’s qualifications in determining whether the plaintiff has met the second prong of her prima
facie burden, so too does the court conduct an independent review of the relative qualifications of
the plaintiff and the person selected for the position based on the evidence presented in order to
determine whether the plaintiff has satisfied the fourth prong of her prima facie burden.
As the district court notes, a true comparison of White’s qualifications with those of Walker
reveals that White is not as qualified as Walker for the position, and therefore, White fails to meet
the fourth prong of her prima facie burden. Walker had seventeen years of experience in security,
investigation, safety and crime prevention, as compared with White’s seven years of experience.
Before she started working at CMHA, White had no experience in security, investigation, safety or
crime prevention. In contrast, Walker had served as a military police officer, investigator, and
6
Although it seems unlikely that application of the Farmer/Roh test or Anthony’s “similarly situated”
formulation would actually affect the result in most failure to promote cases, use of the Nguyen test insures that some
comparison of qualifications will be made in analyzing the fourth prong, but not the sort of close comparison that might
include consideration of the employer’s evaluation of subjective traits or other details about why the non-protected
person was in fact selected over the plaintiff. See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 ( 11th Cir. 2005)
(noting that a plaintiff need only show that she satisfied the employer’s objective qualifications to meet her prima facie
burden, and that any consideration of the employer’s subjective criteria is not relevant until the later stages of the
McDonnell Douglas framework, because “[a] contrary rule, under which an employer’s subjective evaluation could
defeat the plaintiff’s initial prima facie case, cannot be squared with the structure and purpose of the McDonnell Douglas
framework); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1194 (10th Cir. 2000) (“[S]ubjective
qualifications[] are more properly considered at the second stage of the McDonnell Douglas analysis and a plaintiff’s
failure to meet such qualifications cannot be used to defeat the plaintiff’s prima facie case.”); Sempier v. Johnson &
Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (noting that “the question of whether an employee possesses a subjective
quality, such as leadership or management skill,” is more appropriately considered in the later stages of the McDonnell
Douglas inquiry); Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1344 (9th Cir. 1981) (“In our view, objective job
qualifications are best treated at step one and subjective criteria, along with any supporting evidence, are best treated
at the later stages of the process. To do otherwise would in many instances collapse the three step analysis into a single
initial step at which all issues would be resolved. This would defeat the purpose underlying the McDonnell Douglas
process.”).
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 8
supervisor of security for Faith Mission, Inc., a homeless shelter, prior to being selected for the
position at CMHA. Unlike White, whose only investigation experience consisted of three or four
domestic or divorce cases, each lasting between one to three weeks, prior to working for CMHA,
Walker had conducted countless criminal investigations during his jobs as a military police officer
for the Army, private investigator, and at the homeless shelter. White’s job duties at CMHA do not
appear to include any supervisory role for other personnel, and she had only performed a supervisory
role in connection with a grant project she coordinated, which likewise did not involve supervision
of security personnel. By contrast, Walker was responsible for training incoming investigators at
the private investigation firm and supervised a staff of twelve to fourteen employees at the homeless
shelter. Walker also researched and developed a comprehensive security manual while working at
the homeless shelter. Comparing the qualifications of White and Walker, it is clear that Walker has
superior experience in material and relevant respects, and therefore, White and Walker cannot be
considered similarly qualified for the position, as required to meet the fourth prong of White’s prima
facie burden.7
2.
Even if White had been able to satisfy her prima facie burden, her claim still fails because
CMHA has produced a legitimate non-discriminatory reason for failing to hire White as the Manager
of Safety and Crime Prevention. Once the plaintiff meets her prima facie burden, the burden then
shifts to the employer to produce a legitimate non-discriminatory reason for failing to hire the
plaintiff for the position sought. Sutherland, 344 F.3d at 614-15; Anthony, 339 F.3d at 515. CMHA
has asserted that it chose not to hire White because it decided to hire a more qualified candidate.
The district court found that CMHA had met its burden of production on this point.
On appeal, White argues that, because no one can remember reviewing her application, her
application was never reviewed or considered by anyone at CMHA. If no one reviewed her
application, White asserts, then CMHA could not possibly have concluded that Walker was more
qualified, because no comparison of the qualifications of the two candidates was ever made. White
also argues that CMHA cannot argue that Walker was better qualified than White because White
was rejected prior to Walker’s submission of his application for consideration.
White’s arguments are unavailing. While it is true that members of the human resources
department could not recall seeing White’s application, it does not logically follow, contrary to
White’s assertions, that no one at CMHA reviewed her application. It is unclear whether her
application was forwarded to the interviewing committee, as no one on that committee remembered
seeing her application. However, from these facts, there is no basis for concluding, as White urges
this court to do, that her application was not reviewed and considered before it was rejected. Thus,
White’s argument that CMHA’s proffered reason is false because her application was not considered
fails.
Similarly, White cannot succeed on her argument that CMHA’s proffered reason is false
because her application was rejected prior to Walker’s submission of his application. The identical
argument was raised and rejected by this court in Williams v. Columbus Metropolitan Housing
Authority, a case brought by another female CMHA employee based on her non-selection for the
7
White asserts that she is a more qualified candidate than Walker because she “has no criminal background
(. . . unlike Mr. Walker).” The “criminal background” White refers to arose out of a charge of criminal assault filed
against Walker when he was working at the homeless shelter. A man accused Walker of hitting him with a flashlight.
Ultimately, Walker pled guilty to a disorderly conduct charge. Despite this charge, there is no genuine issue of fact that
White’s qualifications were not similar to Walker’s. Moreover, the disorderly conduct charge cannot be considered in
evaluating pretext, because CMHA was apparently unaware of the disorderly conduct charge at the time that it hired
Walker.
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 9
position of Manager of Safety and Crime Prevention. Williams, 90 Fed. Appx. at 875-76. As this
court in Williams points out, it is not entirely clear when Walker’s application was initially
submitted. Id. at 875. However, even assuming that White and Walker were not under
consideration at the same time, it was reasonable for CMHA to conclude that while White was
minimally qualified, her qualifications did not rise to the level of quality CMHA for which CMHA
was searching in a new Manager of Safety and Crime Prevention. See id. at 876.
As noted above, a review of Mr. Walker’s qualifications reveals that he was a very strong
candidate for the position, with over seventeen years of relevant experience. As such, we find that
the district court was correct in holding that CMHA’s reason–that Walker was the most qualified
candidate–is sufficient to satisfy CMHA’s burden of production in presenting a legitimate, non-
discriminatory reason for deciding not to hire White.
3.
Once CMHA produces a legally sufficient reason for failing to hire White, the burden shifts
back to White to show that the nondiscriminatory reason is pretextual and the true motivation for
the decision was discriminatory. See Gibson v. City of Louisville, 336 F.3d 511, 513 (6th Cir. 2003).
A plaintiff can make this showing in one of three ways: (1) by showing that the proffered reason had
no basis in fact; (2) by showing that the proffered reason did not actually motivate the employer’s
conduct, or (3) by showing that the proffered reason was insufficient to warrant the challenged
conduct. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003).
White does not specify which of these three options she primarily relies on in arguing that
CMHA’s proffered reason was pretexual, instead urging that this court view all of the facts together
in determining whether CHMA’s reasons were pretextual. In support of her contention of pretext,
White reviews each step of the hiring process, claiming that such a review reveals that the true
reason that she was not hired was not because Walker was the most qualified candidate, as CMHA
contends, but rather because CMHA wanted a man to fill the position. According to White, once
the position became available, Bob Thomas, the Director of Property Management, who would have
to work closely with the Manager of Safety and Crime Prevention, set out to ensure that a man
would fill the position. CMHA, largely through the efforts of Thomas, who allegedly had previously
sexually harassed various female employees at CMHA, circumvented several of CMHA’s policies
with respect to hiring. According to White, CMHA acted improperly in a variety of ways, including
(1) accepting Walker’s application after the deadline,8(2) ignoring White’s application, (3) violating9
CMHA’s policy of preferring internal candidates, (4) violating CMHA’s nepotism policies,
(5) failing to complete a cover sheet for Walker, (6) lying about which candidates were selected for
an interview, and (7) neglecting to do a background check on Walker, thereby remaining unaware
of Walker’s past guilty plea for disorderly conduct. White also cites Darryl Miles’ comment that
the interviewing committee was looking for a “grass roots guy” to fill the vacancy, discussed in the
section regarding direct evidence, as evidence of pretext.
8
The policy states: “In cases where the qualifications of all applicants are deemed by CMHA to be equal, and
efficient operations will not be affected, vacancies will be filled with existing CMHA personnel.” Because CMHA did
not consider White and Walker to be similarly qualified, and because, as discussed above, this conclusion is reasonable,
White’s allegation that this policy was violated is incorrect.
9
White alleges that CMHA’s decision to hire Walker violates CMHA’s nepotism policies because Walker’s
wife also works at CMHA, and should a charge of criminal conduct arise against her, Walker would be in charge of any
resulting investigation as Manager of Safety and Crime Prevention. CMHA states that in the event an investigation of
Mrs. Walker becomes necessary, some other CMHA employee would handle the investigation.
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 10
White’s arguments in support of her allegations of pretext do not permit an ultimate finding
of discrimination. First, the allegations involving Thomas’s alleged history of sexual harassment
are entirely unrelated to the instant case and are qualitatively different from White’s claim of sex
discrimination in hiring. Assuming without deciding that evidence of these allegations would be
admissible in the instant case, such evidence does not support White’s contention that CMHA’s
reason in choosing Walker to fill the position over her because he was the most qualified candidate
was pretextual. Second, White’s arguments that CMHA circumvented its own policies are
unpersuasive, both because these departures from CMHA’s policies are either minor–e.g., failure
to complete a cover sheet–or are insufficiently established–e.g., the violation of the nepotism policy,
the violation of the policy preferring internal, equally qualified candidates. In any event, an
employer’s failure to follow self-imposed regulations or procedures is generally insufficient to
support a finding of pretext. See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir.
1996); Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995). Third, the “grass roots guy”
comment, discussed supra, is too ambiguous to support a finding of discrimination.
Ultimately, even if all of these allegations are true, they do not permit a finding that CMHA’s
stated reasons were merely a cover for a discriminatory motive, as required by Sixth Circuit case
law. The most White can show, in viewing the evidence in the light most favorable to her, is that
her application was not given as much attention as she would have liked. However, she has not
presented sufficient evidence for this court to conclude that the true reason behind the lack of
attention is the fact that she is a woman.
Because we affirm the district court’s grant of summary judgment in favor of CMHA on
White’s Title VII claims, we also affirm the district court’s decision to decline to exercise summary
judgment on her state law claims.
III.
For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor
of CMHA.
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 11
_____________________________________
CONCURRING IN THE JUDGMENT
_____________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree with the
ultimate judgment reached by the majority, but I am troubled by the path taken to reach that result.
While I would grant summary judgment in favor of CMHA, I disagree with the majority’s
determination that Ms. White failed to establish a prima facie claim of discrimination based on the
fourth “similar qualifications” prong of the prima facie standard in failure-to-promote cases. I
believe that the detailed examination of White’s and Walker’s qualifications that the majority
conducts at the prima facie case stage in Part II.B.1 of its opinion places too heavy a burden on a
plaintiff at stage one of the McDonnell Douglas framework, and should be reserved for its analysis
at stages two and three of the framework.
The majority’s analysis of the fourth prong required to establish a prima facie failure-to-
promote case seems to suggest that a plaintiff must establish that he or she has the exact same
qualifications as the non-protected class member who ultimately received the job in order to satisfy
the prima facie standard. This places upon a plaintiff a burden that not only would be unrealistically
difficult for a plaintiff to meet, but also is contrary to our precedent. As we noted in Cline v.
Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000), the prima facie requirement in
discrimination cases is not intended to be an onerous burden upon plaintiffs but instead a burden
which is easily met. Id. at 660 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981)). Moreover, the requirement is not “meant to stymie plaintiffs, but simply serves to
‘bring the litigants and the court expeditiously and fairly to the ultimate question.’” Id. (quoting
Burdine, 450 U.S. at 253). Based on this language, while a general weighing of White’s and
Walker’s qualifications is required during the prima facie stage to determine whether they have
similar qualifications, a more rigorous comparison of the two candidates such as the majority
conducts in stage one is better reserved for stages two and three of the McDonnell Douglas
framework. This is especially true in a case such as this, where the employer asserts as its non-
discriminatory reason for failing to promote the plaintiff that it chose to hire a candidate it
considered more qualified.
I believe that White presented sufficient evidence to permit a reasonable trier of fact to
conclude that White and Walker were similarly qualified for the position and thus established her
prima facie case. Admittedly, White’s and Walker’s qualifications were not identical, but White is
not required to establish that she possessed identical qualifications as Walker. Instead, White need
only demonstrate that she and Walker had similar qualifications, Nguyen v. City of Cleveland, 229
F.3d 559, 562-63 (6th Cir. 2000), which I believe she has done. The record reveals that each
candidate presented both strengths and weaknesses. White’s undergraduate degree in sociology
specializing in criminology was more relevant to the job description than Walker’s undergraduate
degree in political science. In comparison, however, Walker had more years of experience in
security, investigation, safety, and crime prevention than did White. On the other hand, White had
worked for the CMHA as Safety Coordinator for over seven years, and had performed many of the
tasks required of the Safety Manager. White’s years of experience with CMHA could be weighed
more heavily given that she was uniquely familiar with the nature of the organization and
requirements of the position. Thus a reasonable trier of fact could consider White and Walker as
possessing similar, albeit not identical, qualifications, which is all that Nguyen requires of a plaintiff
at the prima facie stage.
While White may be able to make out a prima facie case, she cannot show that CMHA’s
decision to hire Walker was pretextual. CMHA produced a legitimate, non-discriminatory reason
for failing to hire White, namely that Walker was more qualified for the position. Although the two
No. 03-4219 White v. Columbus Metropolitan Housing Authority Page 12
candidates’ backgrounds are similar enough to satisfy the prima facie requirement, a reasonable trier
of fact could conclude that given Walker’s extensive experience in security, investigation, and safety
and crime prevention, he was more qualified than White to serve as Manager of Safety and Crime
Prevention. The burden then falls upon White to present a genuine issue of material fact that this
justification was a pretext for discrimination, which she has been unable to show. I therefore concur
in the judgment that CMHA was entitled to summary judgment.