Sigall-Drakulich v. Columbus , 156 F. App'x 791 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0965n.06
Filed: December 14, 2005
No. 04-4380
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TONDA SIGALL-DRAKULICH,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
CITY OF COLUMBUS, SOUTHERN DISTRICT OF OHIO
Defendant-Appellee.
/
BEFORE: SILER and CLAY, Circuit Judges; MILLS, District Judge.*
CLAY, Circuit Judge. Plaintiff, Tonda Sigall-Drakulich, appeals the district court’s grant
of summary judgment to Defendant City of Columbus on Plaintiff’s Title VII and Ohio Revised
Code Chapter 4112 claims. Plaintiff alleges that the City of Columbus intentionally discriminated
against Plaintiff on the basis of Plaintiff’s gender when the City failed to promote Plaintiff and
instead promoted a male candidate into the available position. Because Plaintiff has failed to
produce more than a scintilla of evidence that the City’s reason for Plaintiff’s nonpromotion was
pretextual, this Court affirms the district court’s grant of summary judgment in this case.
*
Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by designation.
No. 04-3465
BACKGROUND
I. Procedural History
Plaintiff filed an action in United States District Court for the Southern District of Ohio on
April 22, 2002 and amended her complaint on September 23, 2002. The amended complaint alleged
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, Ohio Revised Code
Chapter 4112, and state tort and civil conspiracy laws. The amended complaint named as defendants
the City of Columbus and the City of Columbus Civil Service Commission, along with City of
Columbus employees Barbara Gates McGrath, Chester Christie, and Michael Vance.
Defendants filed their answers to Plaintiff’s complaint on February 4, 2003 and moved for
summary judgment on March 5, 2004 on all claims. Plaintiff opposed the motions for dismissal only
with respect to the Title VII and state law gender discrimination claims against the City of
Columbus, Defendant in the appeal at bar. The district court granted Defendants’ motions for
summary judgment in their entirety on August 11, 2004. Plaintiff timely filed her notice of appeal
on September 8, 2004.
II. Substantive Facts
The facts revolve around the City of Columbus’s decision to create and fill a new position
of citywide Occupational Safety and Health Manager (“Safety Manager”). The City first posted
the position in May 1999, and as initially posted, the position had as minimum requirements two
years experience managing an occupational safety and health program and certification either as a
Safety Professional (CSP) or Industrial Hygienist (CIH).
A City of Columbus selection committee screened applicants for the position in late 1999.
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The selection panel consisted of Eugene Brundige, Chief Labor Negotiator and Deputy Director of
Human Resources; Al Skinner, Chief Steward for the American Federation of State, County and
Municipal Employees Ohio Council (“AFSCME”); Mike Vance, President of the Columbus
Municipal Association of Government Employees (“CMAGE”); and Laura Raica, Employee
Benefits/Risk Manager. Brundige’s office had primary responsibility to fill the position. Mike
Vance’s union represented City supervisory and managerial personnel. Al Skinner’s union
represented City nonsupervisory civilian employees, the largest contingent of City employees.
Additional City of Columbus personnel participated in interviews of a subset of candidates,
including Thomas Finnegan, an industrial hygienist. Eugene Brundige, as the Department of Human
Resources representative, was charged with overseeing the reorganization of the City’s safety
management program, including the hiring of the City Safety Manager.
Plaintiff applied for the position in September 1999. At the time, Plaintiff had 31 years of
public sector experience, most of it in the safety and health fields, and the requisite CSP
certification. Since 1993 Plaintiff had held the position of Department Safety Coordinator in the
City’s Department of Parks and Recreation. Plaintiff had designed and developed a number of
occupational health and safety programs during her career, some of which received state-wide
recognition. The employee ultimately offered the job by the City, Rick Brewer, also submitted his
application for the position at this time, but did not make it past the initial review of resumés because
he lacked one of the required certifications.
After an external candidate was offered and then declined the position, Plaintiff was one of
three candidates given final interviews in with Carolyn Nellon, the City Director of Human
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Resources. The Director of Human Resources is the appointing authority for the Department,
holding the sole authority to hire and promote employees within the Department of Human
Resources, the department into which the successful candidate would ultimately be hired. No offers
were extended at that time. A September 14, 2000 memorandum from the selection committee to
the Director of Human Resources, detailing the selection process, notes that the committee declined
to recommend any of the finalists for the position at the time — 1) Plaintiff, 2) Keith Nichols
(another City employee), and 3) an external contender — due to deficiencies in the applicants’
“diplomacy and scope of experience, leadership skills exhibited in the present position, and relative
inexperience, respectively.” (J.A. at 77.)1
In January 2000 the then-Director of Human Resources, Carolyn Nellon, left her position and
was replaced by Chester Christie in February 2000. Christie reports that Brundige informed him that
the reorganization program was aimed at the civilian safety programs, that the effort was a
cooperative one between the City and AFSCME, and that union support of the selected manager
would be essential to the reorganization’s success. Christie also reports that Brundige shared a
memorandum received from Al Skinner, the AFSCME Chief Steward, that opined that neither
Plaintiff nor the other City employee-applicant for the position, Keith Nichols, would be suitable
1
Plaintiff contends that the authenticity of this memorandum is suspect because 1) the
letterhead refers to Carolyn Nellon as Director of Human Resources when, at the time of the
memorandum, Chester Christie was actually Director; 2) the memorandum refers to Eugene
Brundige as a member of the selection committee when Brundige had, in fact, retired by that time;
and 3) the memorandum refers to Plaintiff’s lack of diplomacy when a committee member, Mike
Vance, did not recall discussing such topic during committee deliberations.
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as Safety Manager, and asked the City to continue the search process.2
In early 2000, Christie learned that programming for occupational health and industrial
hygiene was already being performed by the City Department of Health. In a subsequent
conversation with Brundige about revising the position description to reflect the changed scope
(eliminating occupational health and industrial hygiene from the position responsibilities), Christie
also recalls that Brundige advised Christie that the position’s current minimum qualifications would
impede the City’s ability to “attract individuals who could fulfill the needs of the position and that
unless we expanded the pool of applicants we would have difficulty filling the position.” (J.A. at
102.) Accordingly, Christie directed Brundige to work with the City Civil Service Commission to
revise the position scope and minimum qualifications.
In June 2000 the Civil Service Commission recommended a change to the position’s scope
and minimum qualifications. The changes initially did away with the certification requirements in
their entirety and replaced them with requirements for a bachelor’s degree and four years experience.
The memorandum from the Civil Service Commission staff to its Commissioners recommending
the qualifications change stated that:
[t]his request is a result of a nationally focused recruitment that has been ongoing for
the past year that has been unable to yield any qualified candidates to fill this
position. Although [the Department of Human Resource’s] recruitment revealed
several very interested and credible candidates, none have had the certification that
is required at the time of application.
2
Plaintiff also challenges the authenticity of this memorandum because 1) it appears to be
the second page of a facsimile transmission, and 2) it was dated between the tenure of Carolyn
Nellon and Chester Christie, a period of time during which the “hiring process would have been put
on hold.” (J.A. at 16-17.)
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(J.A. at 68.) Barbara Gates McGrath, the Executive Director of the Civil Service Commission,
stated that when she learned that several candidates indeed had presented the requisite certification,
she “looked into it. Based on my review, I believe this statement to be the result of a
miscommunication between the Department of Human Resources and my staff.” (J.A. at 92.) A
contemporaneous letter from Christie to the President Pro-tem of the Columbus City Council noted
that “[t]he intent in amending the minimum qualifications is to broaden the scope of viable
prospective candidates we are able to attract . . . .” (J.A. at 152.)
The changed position description and minimum qualifications were scheduled for discussion
at the July 2000 public meeting of the Civil Service Commission. Plaintiff intended to speak against
the changes at the meeting. The discussion of the position, however, was pulled from the meeting’s
agenda before Plaintiff had an opportunity to speak.
One week after the July 2000 Civil Service Commission meeting, the commission again
modified the position requirements to permit either a bachelor’s degree and four years experience
or the requisite CSP or CIH certifications and two years experience. The commission explained that
it was not the intention of the revision to exclude those previously meeting the position’s minimum
qualifications, and that the commission had misunderstood the CSP and CIH requirements
themselves to include a bachelor’s degree. The commission explained that it had since learned that
both the CSP and CIH had clauses which permitted some certification holders to qualify without the
bachelor’s degree.
The revised employment opening was posted from August 17, 2000 through August 23,
2000. Five days is the default posting period for City of Columbus positions. At that time,
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additional interviews were done with candidates, including an interview with Rick Brewer. Plaintiff
and Keith Nichols also submitted applications for the revised position, but were not interviewed
again, although Brundige instructed the committee to consider both Plaintiff and Nichols a part of
the current candidate pool. The selection committee then recommended to Christie that Rick Brewer
be selected for the position. Christie then interviewed Brewer, Nichols, and Plaintiff and thereafter
accepted the recommendation of the selection committee, hiring Brewer in March 2001. In making
his final selection, Christie stated that he:
considered the committee’s recommendation, AFSCME’s opinion, how the
applicants performed during the interviews with me and the applicant’s education
and background . . . . I relied heavily on the committee’s recommendation because
its purpose had been to interview the applicants and make a recommendation. Based
on the committee’s memorandum both labor and management representatives
endorsed Rick Brewer. I strongly believed that the Safety Manager had to be able
to foster a cooperative working relationship between the City and the unions so the
unions’ support of the candidate was important to me . . . . I also believe Mr. Brewer
far exceeded the minimum qualifications. In addition to possessing a bachelor’s
degree he also holds a master of science degree in Safety Management. By contrast,
[Plaintiff] has a high school diploma.
(J.A. at 104.) At the time of his selection, Brewer had six years experience in occupational health
and safety, certification as a Safety and Health Manager from the Institute for Safety and Health
Management, and the aforementioned Master of Science in Safety Management.
DISCUSSION
I. PLAINTIFF HAS FAILED TO MAKE A SHOWING THAT DEFENDANT’S
HIRING RATIONALE WAS PRETEXTUAL
Standard of Review
This Court reviews a district court’s grant of summary judgment de novo. See DePiero v.
City of Macedonia, 180 F.3d 770, 776 (6th Cir. 1999). Summary judgment is appropriate where the
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No. 04-3465
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 a judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute as to a material
fact is genuine when the “evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). As the party
moving for summary judgment, Defendant bears the burden of showing the absence of a genuine
issue of material fact as to at least one essential element of Plaintiff’s claim. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). In considering Defendant’s motion for summary judgment, this
Court accepts Plaintiff’s evidence as true and draws all reasonable inferences in her favor. Id. If,
as the nonmoving party, however, Plaintiff fails to make a sufficient showing on an essential element
of the case with respect to which she has the burden, Defendant is entitled to summary judgment as
a matter of law. Celotex Corp., 477 U.S. at 322-23.
Analysis
This Court finds that the district court did not err in finding that Plaintiff has failed to make
a showing that Defendant’s rationale was pretextual.
A. Title VII and Ohio Rev. Code Chapter 4112
Ohio courts have held that the evidentiary standards and burdens of proof applicable to a
claimed violation of Title VII likewise apply when determining whether a violation of Ohio Revised
Code Chapter 4112 has occurred.3 See, e.g., Mauzy v. Kelly Servs., Inc., 664 N.E.2d 1272, 1276
3
The Ohio statute reads:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex, national origin,
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No. 04-3465
(Ohio 1996). Consequently, this Court looks to federal case law governing Title VII actions when
evaluating Chapter 4112 claims. See Williams v. Ford Motor Co., 187 F.3d 533, 538 (6th Cir.
1999). Thus, a failure by Plaintiff to present enough evidence to create a genuine issue of material
fact as to any element of her federal claim would be simultaneously fatal to her state law claim. This
Court may therefore evaluate both claims concurrently under the Title VII jurisprudence.
B. Legal Standard for Title VII Disparate Treatment Claims
Plaintiff alleges intentional discrimination on the part of Defendant in its hiring for the City
Safety Manager. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating
“because of . . . race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (2000). In
a Title VII case, a plaintiff bears the ultimate burden of persuading the factfinder that the defendant
intentionally discriminated against the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000). Unlawful discrimination need not be the only reason for an adverse
employment action to violate Title VII, but rather need only be an essential component of an
employer’s mixed motive. Price Waterhouse v. Hopkins, 490 U.S. 228, 240-41 (1989). A plaintiff
may carry the burden by 1) introducing direct evidence which shows that in treating a plaintiff
adversely the defendant was motivated by discriminatory intent, or 2) by introducing circumstantial
evidence that supports an inference of discrimination. Logan v. Denny’s, Inc., 259 F.3d 558, 566-67
(6th Cir. 2001).
handicap, 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 Ann. § 4112.02(A) (2004).
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Where, as here, Plaintiff’s evidence is circumstantial, a disparate treatment claim proceeds
through a three-step framework. In a failure to promote situation, Plaintiff bears the initial burden
of making a prima facie case that 1) she is a member of a protected class, 2) she applied for and was
qualified for the position, 3) she was considered for and denied the promotion, and 4) another
employee of similar qualifications who was not a member of the protected class received the
promotion. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Roh v. Lakeshore
Estates, Inc., 241 F.3d 491, 497 (6th Cir. 2001). The prima facie test is meant to be a relatively light
burden. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (stating that in a Title VII
case “the burden of establishing a prima facie case of disparate treatment is not onerous”).
If Plaintiff carries that burden, then, in the second step of the framework, Defendant must
produce a legitimate, nondiscriminatory reason for failing to promote Plaintiff. Reeves, 530 U.S.
at 142. Defendant’s burden is one of production, not persuasion; it involves no credibility
assessment. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993).
If Defendant carries its burden, then, in the final stage in the process, Plaintiff must prove
by a preponderance of the evidence that the defendant’s proffered reason is a mere pretext for
intentional discrimination. Reeves, 530 U.S. at 142-43. To survive summary judgment, Plaintiff
must demonstrate both that Defendant’s rationale is incredible and that the true motivation behind
her nonpromotion included intentional discrimination because of her gender. St. Mary’s Honor Ctr.,
509 U.S. at 515 (“[A] reason cannot be proved to be a pretext for discrimination unless it is shown
both that the reason was false, and that discrimination was the real reason.”). From an evidentiary
standpoint, in some (but not all) cases, sufficient evidence of discriminatory intent may come solely
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from the prima facie case. Reeves, 530 U.S. at 147-48. The factfinder may consider the evidence
and inferences from the plaintiff’s prima facie case, along with other evidence. Id. at 143.
Methods of disproving the defendant’s reason include demonstrating that the reason 1) had
no basis in fact, 2) was not the actual reason, or 3) was insufficient to explain the defendant's action.
Logan, 259 F.3d at 567. This Circuit has adopted the “honest belief” rule, and Plaintiff cannot
demonstrate pretext merely by showing that Defendant’s hiring rationale was “mistaken, foolish,
trivial, or baseless,” Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998), so long as
Defendant honestly believed in the rationale and based this belief on particularized facts before it
at the time, id. at 806-07.
C. The District Court’s Decision
The district court held that Plaintiff had established her prima facie case because she was
able to show that she 1) was a member of a protected class (female), 2) was qualified for and applied
for the Safety Manager position, 3) was considered for and denied the position, and 4) a white male
with arguably similar qualifications was hired instead. The district court also held, however, that
the City had set forth legitimate, nondiscriminatory reasons for its hiring actions and produced the
associated, requisite evidence. The bulk of the lower court’s decision focuses on whether Plaintiff
made a sufficient showing that there exists a genuine issue of material fact as to whether the City’s
reasons were merely a pretext for discrimination. The district court concluded that Plaintiff failed
to carry her burden in making a sufficient showing that Defendant’s reasons were mere pretext for
intentional discrimination against Plaintiff because of her gender. Plaintiff appeals this finding on
pretext.
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D. Plaintiff’s Evidence of Pretext
Plaintiff may carry her burden of pretext at the summary judgment stage if she can produce
enough evidence to create a genuine issue of material fact about whether the City’s reasons 1) have
no basis in fact, 2) are not the actual reasons, or 3) are insufficient to explain the hiring of Brewer
in lieu of Plaintiff. Logan, 259 F.3d at 567. This evidence must be such that a “jury may reasonably
reject the employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083
(6th Cir. 1994).
To carry her burden, Plaintiff challenges each of Director Christie’s proffered rationales for
his hiring decision — the recommendation of the selection committee, union opposition, the
applicants’ performance during interviews, and the applicants’ education and background. Plaintiff
both challenges the documentation relied on by Christie for his hiring decision, and, by extension,
the credibility of Christie’s reliance on that documentation in reaching his hiring decision. In
addition, Plaintiff alleges that a jury could reasonably infer that Christie’s hiring rationale is
pretextual in light of the entirety of the circumstances surrounding Christie’s direction to amend the
position qualification.
1. The Recommendation of the Selection Committee
Plaintiff argues that the authenticity of the selection committee’s recommendation
memorandum of September 14, 2000 is suspect because 1) the letterhead refers to Carolyn Nellon
as Director of Human Resources when, at the time of the memorandum, Chester Christie was
actually Director; 2) the memorandum refers to Eugene Brundige as a member of the selection
committee when Brundige had, in fact, retired by that time; and 3) the memorandum refers to
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No. 04-3465
Plaintiff’s lack of diplomacy when a committee member, Mike Vance, did not recall discussing such
during committee deliberations. The City argues that it was common practice to use up old
letterhead and that the memorandum clearly refers to Christie as the Director of Human Resources.
Two of the three alleged problems with the memorandum do not, in fact, provide any
evidence going to the authenticity of the memorandum. The reference to Brundige was in the
background section of the memorandum in the context of a discussion of the first round of
interviews in 1999 and does not allude to Brundige’s current employment position with the City.
Brundige had, in fact, retired just at the end of August 2000, near the conclusion of the selection
committee’s process. Second, the fact that Vance could not recall in his deposition testimony, taken
almost four years after the fact, whether the committee discussed Plaintiff’s lack of diplomacy at the
time is not evidence that the memorandum lacks authenticity.
Plaintiff correctly points out that the City fails to provide any evidence that City departments
regularly use old letterhead. In this respect, Plaintiff does point to an incongruity in Defendant’s
evidence that this Court should consider. Standing alone, however, this Court believes that this
piece of evidence is insufficient to create a genuine issue of material fact regarding the
memorandum’s authenticity.
2. Union Opposition
Christie states that he relied, in part, on Skinner’s representation that AFSCME did not
support Plaintiff’s candidacy for the position. Plaintiff contests Christie’s reliance on the Skinner
representation because Plaintiff questions the authenticity of the memorandum in which this
representation was communicated because 1) it appears to be the second page of a facsimile
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No. 04-3465
transmission; 2) it was dated between the tenure of Carolyn Nellon and Chester Christie, a period
of time during which the “hiring process would have been put on hold;” and 3) Skinner never
“voiced his disapproval of [Plaintiff] during the interview panel’s discussion of the merits of the
various applicants.” (Pl. Br. at 16-17.)
In this Court’s opinion Plaintiff’s “evidence” going to the authenticity of the memorandum
is not evidence on this point at all. The date of the memorandum raises no issues as to its
authenticity. While the date is between the tenure of Nellon and Christie, the memorandum was
addressed to Brundige, who was still heading up the Department’s efforts to fill the position, and
who was overseeing the Department as Deputy Director during this interim period. Plaintiff does
not dispute Brundige’s role here. Furthermore, the fact that Vance cannot recall Skinner voicing any
objections to Plaintiff in the selection committee’s meeting does not go to the memorandum’s
authenticity. Finally, Plaintiff produces no evidence to call into question Skinner’s signature on the
memorandum, only that the memorandum appears to be the second page of a facsimile. This is not
evidence going to the memorandum’s authenticity.
Plaintiff also challenges Christie’s reliance on the Skinner memorandum. Plaintiff alleges
that AFSCME disapproval is an insufficient reason for hiring Brewer in lieu of Plaintiff because at
the time of the hiring process Plaintiff was an elected board member of CMAGE and had been
recommended for the position by the president of the City of Columbus firefighters’ union. This
contention by Plaintiff, however, does not raise a genuine issue of material fact. The position was
aimed at civilian workforce safety programs, and AFSCME represented the largest number of City
civilian employees. The firefighter’s union was not on the selection committee, as AFSCME was,
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No. 04-3465
and the CMAGE representative, Mike Vance, concurred in the recommendation for Brewer.
Moreover, Plaintiff does not produce evidence that Christie is dissembling about his reliance on the
memorandum.
3. Interview Performance
Plaintiff also alleges that it is implausible that Christie’s interview with Plaintiff could form
a rational basis for rejecting Plaintiff’s candidacy. Plaintiff contends that Christie failed to inquire
into Plaintiff’s knowledge, skills, or abilities, or request documentation as to Plaintiff’s
qualifications for the position. Plaintiff argues that Christie did not, therefore, perform an
“interview” with Plaintiff and that a reasonable jury could infer from the “pro-forma” nature of the
interview that it was insufficient to inform his decision-making process.
Plaintiff is asking this Court to venture into the territory of telling employers the form and
extent of hiring interviews. This Court avers that it would be inappropriate to interfere with a
manager’s prerogative to conduct interviews in the form and fashion with which he or she sees fit,
so long as the form and fashion do not implicate impermissible discrimination. See Smith v. Leggett
Wire Co., 220 F.3d 752, 763 (6th Cir. 2000). Plaintiff does not allege that Christie made any
discriminatory remarks or allusions during the interview. Plaintiff has failed to produce evidence
that Defendant’s reliance on Plaintiff’s interview performance was pretextual.
4. Education and Background
Plaintiff alleges that a jury could reasonably infer that Defendant’s reliance on Brewer’s
educational attainment was pretextual in light of Plaintiff’s extensive experience. Plaintiff alleges
that no reasonable hiring official could find Brewer more qualified than Plaintiff. Plaintiff
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No. 04-3465
misconstrues the evidence before this Court. Christie does not assert that Brewer’s experience is
more extensive than Plaintiff. Rather, Christie notes that Brewer far exceeded the minimum
requirements for the position, given his experience and educational attainments, and further noted,
by comparison, Plaintiff’s high school diploma. The City never represented that it would hire the
most experienced candidate without consideration of other factors. Rather, education and
experience were only two of a number of factors considered by Christie. Plaintiff has not introduced
any evidence, beyond Plaintiff’s own opinion, that Brewer was not qualified for the position. This
Court has consistently held that it will not second-guess the business acuity underlying
management’s personnel decisions. See Smith, 220 F.3d at 763.
5. The Entirety of the Circumstances
Plaintiff argues that the sum of the circumstances give rise to an inference that Defendant’s
hiring rationale is pretextual. Plaintiff relies heavily on the fact that despite being qualified at the
time of her interview, after the ascendancy of Christie, a male, into the hiring position, the minimum
qualifications underwent a modification which permitted Brewer, also a male, to qualify for the
position when he was previously not deemed qualified. Plaintiff argues that the sequence of events
raises a genuine issue of material fact about whether this modification was intended to discriminate
against Plaintiff because of her gender. Plaintiff implies that had Carolyn Nellon remained Director
of Human Resources, Plaintiff would have been hired and no modification to the qualifications
would have been made.
Plaintiff makes a myriad of arguments about the timeline of the qualifications modification,
the strongest of which lies with the false assertion in the Civil Service Commission staff
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No. 04-3465
recommendation memorandum that the national recruitment effort had “failed to yield any qualified
candidates” for the position. While the Civil Service Commission Executive Director explains that
this statement was a result of a miscommunication between departments, the inconsistency is real
evidence going to the truth behind the City’s rationale for the qualifications modification. None of
Plaintiff’s other issues with the timeline, however, support the contention that the modification was
part of a plan to discriminate. The fact that the Health Department was concerned about the removal
of the certification requirement does not undermine the Department’s asserted rationale for the
modification (to attract a broader array of viable candidates). Neither does Plaintiff present any
evidence to counter Defendant’s rationale for the removal of the position discussion at the July 2000
Civil Service Commission meeting (that the matter had been settled). Finally, Plaintiff points to the
original modification to the position which would have removed Plaintiff’s eligibility for the
position. Plaintiff presents no evidence, however, that Defendant’s explanation for this modification
— its misunderstanding that the CSP and CIH certifications required a bachelor’s ab initio — was
false. In any event, Defendant revised its modification to the position to include applicants in
Plaintiff’s position before reposting the opening.
6. Summary of Plaintiff’s Evidence of Pretext
Based on the foregoing analysis, this Court understands Plaintiff to have produced two pieces
of evidence in support of pretext, 1) the old letterhead going to the authenticity of the selection
committee recommendation memorandum, and 2) the false assertion in the Civil Service
Commission memorandum that no qualified candidates had been found for the position. Neither
piece of evidence is dispositive and both are countered by Defendant in the form of deposition
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No. 04-3465
testimony and affidavits.
The old letterhead is insufficient to create a genuine issue of material fact as to the
memorandum’s authenticity. Christie gave a statement under oath that the memorandum is a true
and correct copy of what he received on that date. The memorandum is initialed and is consistent
with deposition testimony of Vance and the affidavit of Christie. The memorandum was kept in the
ordinary course of business. The use of 9-month old letterhead is insufficient to override these
indicia of reliability.
The incorrect assertion in the Civil Service Commission memorandum is a closer issue. The
inconsistency between the statement therein and the undisputed concession that Plaintiff was
qualified for the Safety Manager position is some evidence going to Plaintiff’s claim, despite
Defendant’s explanation for the statement. In this Court’s opinion, however, this single
inconsistency amounts only to a scintilla of evidence when viewed in the context of the evidentiary
record as a whole. This evidence is not sufficient such that a “jury may reasonably reject the
employer’s explanation.” Manzer, 29 F.3d at 1083.
Moreover, Plaintiff has failed to make a showing that Defendant’s true motivation was
discriminatory. None of Plaintiff’s evidence points to gender discrimination. Plaintiff has alleged
no statements or references by Defendant management or employees which go to gender
discrimination or even animus. Plaintiff relies exclusively on the fact that a white male ultimately
received the promotion. Yet another white male, Keith Nichols, was affected in the same way as
Plaintiff throughout the hiring process. In fact, Keith Nichols was the successful candidate’s direct
supervisor prior to the candidate’s promotion. Plaintiff points to the entirety of the circumstances
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surrounding the hiring process, but this Court has held that temporal proximity, standing alone, is
“insufficient in and of itself to establish that the employer’s nondiscriminatory reason” was, in fact,
pretextual. Skrjanc v. Great Lakes Power Serv. Co., 272 F3d 309, 317 (6th Cir. 2001).
CONCLUSION
For the foregoing reasons, this Court AFFIRMS the district court’s grant of summary
judgment for Defendant.
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