Burke-Johnson v. VA , 211 F. App'x 442 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0916n.06
Filed: December 20, 2006
No. 06-1251
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHARON BURKE-JOHNSON, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
DEPARTMENT OF VETERANS AFFAIRS, ) OPINION
ANTHONY J. PRINCIPI, SECRETARY, )
)
Defendant-Appellee. )
BEFORE: KENNEDY, COLE, COOK, Circuit Judges.
R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Sharon Burke-Johnson brought
a Title VII action against her employer, the Secretary of the Department of Veterans Affairs (the
“Secretary”), alleging that she was denied a promotion at the Department’s Ann Arbor, Michigan
Medical Center (“Ann Arbor VA”) due to her race. The district court granted summary judgment
for the Secretary, ruling that Burke-Johnson failed to adduce sufficient evidence from which a
reasonable factfinder could conclude that the Secretary’s proffered reasons for denying Burke-
Johnson a promotion were pretextual. For the reasons that follow, we AFFIRM the judgment of
the district court.
I. BACKGROUND
Sharon Burke-Johnson is an African-American woman who has worked at the Ann Arbor
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VA since 1981. Burke-Johnson started out as a GS-4-level ward clerk but, by 1992, she had climbed
to a GS-6-level position as a supervisory medical clerk. In 1996, Burke-Johnson applied for and
received one of four positions as an Administrative Information Coordinator (“AIC”), a GS-7-grade
position. The other persons selected to be AICs included two Caucasian women, Martha Morgan
and Nancy Werkema, and one Hispanic woman, Luisa Cardona. When Morgan left the Ann Arbor
VA to assume a position in a different department of the VA, she was replaced by a Caucasian
woman named Susan Varcie, a.k.a. Susan Fleece.
As originally conceived, the AICs worked for the clinical coordinators (essentially head
nurses) in the individual units of the Ann Arbor VA, and their jobs were to support the unit and its
clinical coordinator. Between 1996 and 1998, Burke-Johnson worked as an AIC in the psychiatry
continuum and the cardiology continuum. In 1999, she was reassigned to work for Pamela McCoy,
a clinical coordinator responsible for managing various clinical specialists and the Ann Arbor VA’s
quality-assurance program. Burke-Johnson’s second-line supervisor throughout her tenure as an AIC
was Jo Tirone, a Caucasian woman who was the Ann Arbor facility’s chief nurse.
Burke-Johnson worked as an AIC under McCoy for approximately three years. During this
time, her principal responsibilities included gathering patient-care and other types of data and
organizing it into reports. McCoy gave Burke-Johnson positive performance evaluations and
characterized her as an “excellent employee[].” At her deposition, McCoy further testified that
Burke-Johnson’s strengths as an employee included her ability to effectively report the data she
gathered in a spreadsheet format of her own design, as well as her prior experience and knowledge
of the VA system.
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The VA underwent a reorganization beginning in 1998 that resulted in the dissolution of
certain departments and positions within the Ann Arbor facility. As part of this process, Tirone
slated the AIC positions for elimination. Over time, Tirone reassigned Burke-Johnson’s AIC
colleagues to new duties within the Ann Arbor VA. For instance, Tirone reassigned Werkema to
a position as Tirone’s own secretary, and when Werkema left the VA, Tirone assigned Cardona to
that post. Varcie was reassigned to a public-affairs position within the VA. Thus, by 2001, Burke-
Johnson was the only remaining AIC.
In February 2001, Burke-Johnson applied for a promotion to the position of Staff Assistant,
a GS-9-grade appointment. Cardona and one other person also applied. A panel consisting of
Tirone, a woman named Jannette Ventura (the first-line supervisor to the Staff Assistant), and a third
unidentified person, reviewed the applications and made the promotion decision. The Staff
Assistant’s duties primarily involved inputting staffing data (such as staffing needs and effectiveness
and information regarding promotions, awards, overtime, and sick leave) into computer models to
generate reports. Thus, the position required proficiency in software applications, such as Excel,
Outlook, and internal VA programs. Tirone testified that although computer skills were an important
requirement for the job, she regarded knowledge of the VA’s overall patient-care service,
organizational skills, decision-making skills, and interpersonal skills as being “higher on the list”
of important qualifications.
After an informal review process, Tirone and her colleagues chose Cardona to fill the Staff
Assistant job. At the time of her selection, Cardona had been working as Tirone’s secretary for more
than a year. Partly owing to her observations of Cardona as her secretary, Tirone testified that
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Cardona’s decision-making skills, organizational skills, knowledge of the VA’s overall service, and
interpersonal skills were superior to Burke-Johnson’s. In addition, Tirone concluded that Cardona
possessed all of the necessary computer skills to perform the job. Tirone testified that she did “[n]ot
really” observe Burke-Johnson’s performance as an AIC (when Tirone was Burke-Johnson’s second-
line supervisor), that she rarely interacted with Burke-Johnson, and that her knowledge of Burke-
Johnson’s job qualifications consisted of a “baseline understanding.” However, Tirone viewed
Burke-Johnson’s interpersonal skills as “problematic,” testifying that “Sharon is often defensive,
she’s aloof among her peers, these are observations that I’ve made and my attempt to communicate
with her in just simple ways, saying hello, she’s abrupt. She’s abrupt, not just with me but others,
that was taken into consideration when I selected Luisa [Cardona] over Sharon for the position.” JA
326. In contrast, Tirone felt that Cardona’s “interpersonal skills go beyond just a small group of
people and to the entire service and people outside of patient care,” that Cardona had developed “a
cadre of relationships that made her knowledgeable beyond clinical issues or unit-specific patient-
care issues,” and that Cardona’s “realm of interactions with other people in the medical center” was
broader than Burke-Johnson’s. Id. 326-27, 328.
McCoy testified that she was not surprised by Burke-Johnson’s lack of success in obtaining
a promotion because as she “look[ed] back on that time period [she] did not, to my knowledge, see
African-Americans being promoted.”1 Asked about whether she felt that racial discrimination could
1
Burke-Johnson alleges that she applied for, and was denied, at least thirty promotions at
the Ann Arbor VA. The only promotion at issue in this appeal, however, is that involving the
Staff Assistant position.
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have played a role in Burke-Johnson’s inability to get promoted, McCoy responded, “[y]es, I did.”
McCoy further testified as follows:
Q: In your own words right now today looking back, your
memory, your honest memory, is Jo Tirone someone who
engaged in racial discrimination?
A: At that time, yes.
Q: When you would discuss Sharon Burke-Johnson with Jo
Tirone, did Jo Tirone ever make statements that you felt were
demeaning or hostile or depriving Ms. Burke-Johnson of her
dignity outside of her presence?
A: Yes.
Q: Could you describe them, please?
A: I can’t remember specifics but from what you’ve just stated,
that was the general outcome of some of the conversations.
Q: It was the tenor, the feeling you received of her attitude
towards Ms. Burke-Johnson?
A: Yes.
JA 505-506.
Burke-Johnson continued to work as an AIC until May 5, 2002, when she was laterally
reassigned to a program-support-assistant position in the ambulatory-care unit. After filing a
complaint with the EEOC and obtaining an unfavorable adjudication there, Burke-Johnson brought
suit in the Eastern District of Michigan on October 19, 2004. She asserted a Title VII claim for race
discrimination for the failure to promote her to numerous positions, including the Staff Assistant
position, and for retaliation in response to her filing an EEOC complaint. The Secretary brought a
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motion for summary judgment, arguing, among other things, that Burke-Johnson could not establish
that she was denied the Staff Assistant job due to her race. In opposing the motion, Burke-Johnson
abandoned her retaliation claim. The district court granted summary judgment, concluding that
Burke-Johnson had not presented either direct or circumstantial evidence sufficient to create a
genuine issue of material fact as to whether the Secretary’s asserted rationale for selecting Cardona,
rather than Burke-Johnson, was a pretext for unlawful discrimination. Burke-Johnson timely
appealed.
II. DISCUSSION
A. Standard of Review
This Court reviews a district court’s grant of summary judgment de novo, employing the
same standard as the district court. Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir. 2004). Summary
judgment is appropriate where the record shows 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). The
movant has the burden of proving the absence of any genuine issues of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986). In response, the nonmoving party must present “significant
probative evidence” to show that “there is [more than] some metaphysical doubt as to the material
facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993). In determining whether the
movant has met his burden, the Court views the evidence in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Title VII Standards
At the summary judgment stage, a plaintiff must adduce either direct or circumstantial
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evidence to prevail on her Title VII race-discrimination claim. DiCarlo v. Potter, 358 F.3d 408, 414
(6th Cir. 2004).
Direct evidence is evidence that is free of inferences and that, if believed, requires a finding
that “unlawful discrimination was at least a motivating factor in the employer’s actions.” Amini v.
Oberlin College, 440 F.3d 350, 359 (6th Cir. 2006); compare Reeves v. Swift Transp. Co., 446 F.3d
637, 640-41 (6th Cir. 2006) (the defendant’s light-duty policy was not direct evidence of pregnancy
discrimination because the express terms of the policy were pregnancy-blind) with Talley v. Bravo
Pitino Rest., 61 F.3d 1241, 1249 (6th Cir. 1995) (affidavits by plaintiff and witnesses setting forth
racist comments made by restaurant owners constituted direct evidence of discrimination).
Under the circumstantial-evidence approach, a plaintiff must “show[] the existence of facts
which create an inference of discrimination.” Talley, 61 F.3d at 1248. This method of proof “‘arose
out of the Supreme Court’s recognition that direct evidence of an employer’s motivation will often
be unavailable or difficult to acquire.’” Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 436 (6th
Cir. 2002) (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1071 (3d Cir.
1996)). The familiar McDonnell Douglas/Burdine burden-shifting framework applies. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 252-53 (1981); DiCarlo, 358 F.3d at 414. First, the plaintiff must make out a prima facie
case of racial discrimination.2 Dews v. A.B. Dick Co., 231 F.3d 1016, 1020-21 (6th Cir. 2000).
2
To make out a prima facie case of race discrimination based on a failure to promote, a
plaintiff must show: (1) she is a member of a protected class; (2) she applied for and was
qualified for the promotion; (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
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“After a plaintiff creates a presumption of discrimination by establishing a prima facie case, a
defendant may rebut the presumption by proffering a legitimate, nondiscriminatory reason for its
decision.” Id. at 1021. If the employer carries its burden, the plaintiff must then prove by a
preponderance of the evidence that the reasons offered by the employer were pretextual. Id.;
DiCarlo, 358 F.3d at 414-15. Throughout this burden-shifting process, “the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff.” DiCarlo, 358 F.3d at 415 (internal citation omitted).
A plaintiff may establish that a defendant’s stated reason for its employment action was
pretextual by showing that the reason (1) had no basis in fact; (2) did not actually motivate the
challenged conduct; or (3) is insufficient to explain the challenged conduct. Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
C. Burke-Johnson’s Evidence of Pretext
The Secretary does not dispute that Burke-Johnson has established a prima facie case of race
discrimination. Instead, the Secretary argues that it has set forth a legitimate, non-discriminatory
reason for the selection of Cardona for the Staff Assistant position, namely, that Cardona was better
qualified in that she possessed decision-making, organizational, and interpersonal skills that were
superior to Burke-Johnson’s, as well as a greater breadth of experience within the VA. Burke-
Johnson challenges the Secretary’s rationale as pretextual on the grounds that, under Manzer, it did
not actually motivate the Secretary’s conduct. Burke-Johnson relies on McCoy’s testimony, and
the promotion. Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006).
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further argues that her qualifications exceeded Cardona’s, and that the selection process for the Staff
Assistant job was illegitimate. Although she proceeds under both the circumstantial and direct
methods of proof, Burke-Johnson cannot withstand summary judgment under either one.
1. Circumstantial-Evidence Approach
(a) McCoy’s Testimony
Burke-Johnson argues that McCoy’s testimony is sufficient to create an inference that Tirone
was motivated by race discrimination in her selection of Cardona over Burke-Johnson. As an initial
matter, McCoy testified that she was not involved in the hiring process for the Staff Assistant
position, that she did not know what duties were encompassed by that position, and that she had no
basis for comparing Burke-Johnson’s job performance with Cardona’s. By her own admission, then,
McCoy is not equipped to opine on whether Cardona was better qualified to assume the Staff
Assistant position.
Burke-Johnson relies primarily on three statements that McCoy made at her deposition that,
according to Burke-Johnson, give rise to a question of fact about the legitimacy of the Secretary’s
proffered reasons for preferring Cardona.
First, Burke-Johnson points to McCoy’s testimony wherein McCoy agreed with the statement
that “race discrimination may have played a role in [Burke-Johnson’s] failure to achieve a
promotion.” JA 426. Although it generally supports Burke-Johnson’s argument, this testimony is
insufficient to submit Burke-Johnson’s claims to a jury because McCoy did not tie her view to
Burke-Johnson’s failure to gain the Staff Assistant promotion, but only to Burke-Johnson’s general
inability to get promoted. Where Burke-Johnson testified that she has applied and been turned down
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for more than thirty promotions at the Ann Arbor VA, McCoy’s testimony is not sufficient to raise
a genuine question of fact as to whether race discrimination was a motivating factor in the selection
process for the particular position on which Burke-Johnson predicates her Title VII claim.
Second, Burke-Johnson cites to McCoy’s affirmative response to a question about whether
Tirone engaged in racial discrimination:
Q: In your own words right now today looking back, your
memory, your honest memory, is Jo Tirone someone who
engaged in racial discrimination?
A: At that time, yes.
JA 505.
McCoy’s “[a]t that time” reference was to February-May 2000 when McCoy alleged in her
own EEOC complaint that she was subjected to racial discrimination by her superiors at the Ann
Arbor VA. Burke-Johnson contends that McCoy’s testimony carries considerable weight because
McCoy directly supervised Burke-Johnson and reported to Tirone on Burke-Johnson’s work
activities and performance. In addition, McCoy asserted that she suffered racially discriminatory
treatment at the hands of Tirone not long before Tirone allegedly discriminated against Burke-
Johnson (Burke-Johnson was denied the Staff Assistant job in February 2001).
Read as an isolated exchange, McCoy’s testimony that Burke-Johnson behaved in a racially
discriminatory way “[a]t that time” might preclude summary judgment for the Secretary. After all,
if the trier of fact believed McCoy’s testimony that Tirone discriminated against African-American
employees around the time in which Burke-Johnson was denied the Staff Assistant promotion, it
would not be a far leap to conclude that Tirone rejected Burke-Johnson on the basis of Burke-
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Johnson’s race.
Despite its probative value, McCoy’s testimony does not enable Burke-Johnson to withstand
summary judgment because McCoy limited her opinion that Tirone engaged in racial discrimination
to her—i.e., McCoy’s—own experiences at the Ann Arbor VA that prompted McCoy to file her own
EEOC complaint. At least four times during her deposition, McCoy testified that she could only
speak to her own experience. In fact, in a deposition question which just preceded that excerpted
above, McCoy was asked whether “Tirone treated blacks and whites differently from each other.”
McCoy answered, “I can only speak to my own situation at that time and that is what the record
reflects for that time.” JA 505. Thus, viewed in context, McCoy’s testimony that Tirone engaged
in racial discrimination “[a]t that time” is of minimal help to Burke-Johnson because McCoy
confined her opinion to her “own situation” at the Ann Arbor VA. In other words, McCoy’s
testimony does not give rise to an inference that Tirone discriminated against Burke-Johnson, or that
Tirone discriminated generally against African-Americans. Even if true, McCoy’s testimony that
Tirone discriminated against her cannot stand in as proof of a discriminatory animus towards Burke-
Johnson.
Third, Burke-Johnson notes that McCoy agreed that Tirone made comments that were
“demeaning” or “hostile” to Burke-Johnson, or that tended to “deprive[] Ms. Burke-Johnson of her
dignity.” JA 506. However, McCoy was not able to offer any examples. All McCoy was able to
say was that these types of derisive remarks were “the general outcome” of her conversations with
Tirone. Id. This is insufficient. See Wixson v. Dowagiac Nursing Home, 87 F.3d 164, 171 (6th Cir.
1996) (affirming the district court’s grant of summary judgment where the plaintiffs’ evidence
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contained numerous allegations of disparate treatment “that [were] made in general, conclusory
terms, but names, times and occasions [were] missing” and the affidavits were “filled with
statements of the subjective beliefs of the affiants” that the defendant discriminated against its
employees from Africa). More to the point, even assuming that Tirone did belittle Burke-Johnson,
McCoy did not testify that these comments were based on Burke-Johnson’s race.
What is left of McCoy’s testimony then is her general view that African-Americans encounter
stiffer resistance than whites to advancement at the Ann Arbor VA. Even if true, this is too slender
a basis upon which a reasonable factfinder could conclude that Burke-Johnson was not promoted to
the Staff Assistant position due to her race, rather than the non-discriminatory reasons proffered by
the Secretary.
Burke-Johnson analogizes McCoy’s testimony to that of witnesses in Carter v. Univ. of
Toledo, 349 F.3d 269 (6th Cir. 2003) and Hopson v. DaimlerChrysler Corp., 306 F.3d 427 (6th Cir.
2002) and argues that just as the Carter and Hopson witnesses’ statements were sufficient to defeat
the defendants’ motions for summary judgment there, so is McCoy’s testimony sufficient to defeat
the Secretary’s motion here. Contrary to Burke-Johnson’s assertion, both cases are distinguishable.
In Carter, the plaintiff was an African-American visiting professor at the University of
Toledo’s College of Education during the 1999-2000 academic year. 349 F.3d at 271. When she
had not heard whether her contract would be renewed for the following year, the plaintiff contacted
the university’s Vice Provost, who coordinated faculty hiring. Id. The plaintiff testified that the
Vice Provost told her that the Interim Dean of the College of Education was “trying to whitewash
the College of Education and I am not going to let her do this,” that the Interim Dean “was trying
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to get rid of the black professors and that he was in a struggle with her involving the appointment
of an additional black professor,” and that the personnel within the College of Education “were a
bunch of racists.” Id. at 272. This Court reversed the district court’s grant of summary judgment,
holding that “if the jury were to believe that [the Vice Provost] in fact made the remarks attributed
to him, then they might find that the University’s proffered reasons ‘did not actually motivate the
defendant’s challenged conduct.’” Id. at 276.
The descriptive quality of the Vice Provost’s comments contrasts sharply with McCoy’s
inability to provide any examples of Tirone’s allegedly disparaging remarks about Burke-Johnson,
but that alone does not distinguish Carter from this case. The Vice Provost in Carter broadly
accused the Interim Dean of working to keep all African-Americans out of the College of Education,
thus giving rise to an inference that the Interim Dean discriminated against the African-American
plaintiff. McCoy, on the other hand, testified only about her “own situation” and did not testify that
Tirone systematically discriminated against African-Americans at the Ann Arbor VA.
Hopson is also unavailing. There, the plaintiff was a long-time DaimlerChrysler employee
who applied for, but was denied, five different promotions for which DaimlerChrysler conceded he
was qualified. 306 F.3d at 429. The plaintiff’s supervisor testified that, in his opinion, the plaintiff’s
race was a motivating factor in the company’s refusal to promote him. Id. at 431. This Court treated
the supervisor’s testimony as circumstantial evidence of discrimination because the supervisor was
familiar with the company’s hiring practices and the plaintiff’s job strengths and therefore, “[i]n light
of this knowledge, [the supervisor] was no doubt able to form a competent opinion regarding why
[the plaintiff] was passed over for certain jobs.” Id. at 433, 437.
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If the evidence adduced by the plaintiff in Hopson was limited to the testimony of his
supervisor, Burke-Johnson would be on firmer ground in arguing that McCoy’s testimony is enough
to defeat the Secretary’s summary judgment motion. But the Hopson evidence was not so limited.
The Hopson Court also was troubled by the defendant’s proffered non-discriminatory reason—that
in each of its non-promotion decisions involving the plaintiff, it had selected a better-qualified
candidate—insofar as that reason “was vague, [and] failed to specify the manner in which the white
employees were better qualified, or the degrees of difference in the [candidates’] annual
evaluations.” Id. at 436. The Hopson record also contained statistical evidence that African-
Americans were under-represented in the positions to which the plaintiff was seeking a promotion.
Id. at 437-38. The record compiled by Burke-Johnson is not so robust.
(b) Other Record Evidence of Pretext
Besides McCoy’s testimony, Burke-Johnson contends that there was other evidence that
supports a finding of pretext. First, Burke-Johnson argues that the evidence does not show that
Cardona was better qualified for the Staff Assistant position than her. She further claims that the
process used to choose between the candidates for the Staff Assistant job was suspicious in that
Tirone did not adequately investigate Burke-Johnson’s qualifications.
The Secretary argues that Burke-Johnson has waived these arguments because she did not
raise them in the district court. On reply, Burke-Johnson responds that these issues were
encompassed by the proceedings below and that to the extent they were not, this Court should
nonetheless consider them pursuant to Pinney Dock and Transport Co. v. Penn Central Corp., 838
F.2d 1445, 1461 (6th Cir. 1988), which held that an appellate court may exercise its discretion to
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consider matters not raised below “to the extent the issue is presented with sufficient clarity and
completeness and its resolution will materially advance the progress” of the litigation.
i) Qualifications Evidence
Although Burke-Johnson did not specifically discuss qualifications as evidence of pretext
in her brief in opposition to the Secretary’s motion for summary judgment, the question of her
qualifications relative to those of Cardona was sufficiently part of the proceedings below. Burke-
Johnson alleged her superior qualifications in her complaint, the Secretary sought to rebut that
contention in its opening summary-judgment brief, and the district court considered and dismissed
it as evidence of pretext in its order. Thus, we will address this argument.
In substance, Burke-Johnson claims that Tirone unduly emphasized “interpersonal skills” in
the hiring process when it is not clear that interpersonal skills were an important qualification for a
job that was primarily statistical in nature. Burke-Johnson further argues that the evidence does not
show that her interpersonal skills are in fact lacking, and notes that until this litigation, Tirone signed
McCoy’s performance evaluations of Burke-Johnson and did not record that Burke-Johnson suffered
from any interpersonal-skill deficiencies. Finally, Burke-Johnson appears to argue that the depth and
breadth of her experience within the Ann Arbor VA was at least as extensive as Cardona’s.
Burke-Johnson has not produced sufficient evidence to substantiate her qualifications
argument. The Supreme Court has stated that “qualifications evidence may suffice, at least in some
circumstances, to show pretext.” Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197 (2006). In Bender
v. Hecht’s Department Stores, 455 F.3d 612, 626 (6th Cir. 2006), this Court held that the probative
value of qualifications evidence in terms of demonstrating pretext must be balanced against “the
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principles that employers are generally ‘free to choose among qualified candidates,’ [quoting] Wrenn
v. Gould, 808 F.2d 493, 502 (6th Cir. 1987), and that ‘[t]he law does not require employers to make
perfect decisions, nor forbid them from making decisions that others may disagree with,’ [quoting]
Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996).” Thus,“[w]hether qualifications evidence will be
sufficient to raise a question of fact as to pretext will depend on whether a plaintiff presents other
evidence of discrimination.” Bender, 455 F.3d at 626. If there is a dearth of other evidence of
discrimination, then to survive summary judgment, “the rejected applicant’s qualifications must be
so significantly better than the successful applicant’s qualifications that no reasonable employer
would have chosen the latter applicant over the former. Id. at 627.
Burke-Johnson has not met this standard. Even if it is true that her interpersonal skills were
not lacking and that her experience within the VA was as well-rounded as Cardona’s, these were just
two of the factors that Tirone considered in the selection process. Tirone also pointed to the
importance of overall knowledge of patient-care services, organizational skills, decision-making
skills, and computer skills. Burke-Johnson has not shown that her skills in these other areas
exceeded Cardona’s, let alone, in light of the insufficiency of McCoy’s testimony, that they so far
surpassed Cardona’s skills that Tirone’s selection of Cardona was unreasonable.
Finally, although we recognize that “subjective reasons provide ‘ready mechanisms for
discrimination,’” Burke-Johnson has not adduced any evidence showing that Tirone did not actually
regard excellent interpersonal skills as an important qualification for the Staff Assistant job. Hedrick
v. Western Reserve Care Sys., 355 F.3d 444, 461 (6th Cir. 2004) (internal citation omitted). Even
had Burke-Johnson shown that interpersonal skills are irrelevant to the Staff Assistant’s duties, she
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could not defeat summary judgment because in a Title VII case “we look to the employer’s
motivation, not the applicant’s perceptions, or even an objective assessment, of what qualifications
are required for a particular position.” Wrenn, 808 F.2d at 502. “[I]t is the employer’s motivation
and intent, not its business judgment, that is at issue.” Id.
ii) Selection-Process Evidence
Without citing to any authority to support her position, Burke-Johnson argues that the
selection process used by Tirone is indicative of discriminatory intent because Tirone lacked the
necessary knowledge of Burke-Johnson’s skills and experience to meaningfully consider her for the
Staff Assistant position. Although this precise issue does not appear to have been raised in the
district court, we will entertain it because the parties’ briefing clearly frames the issue and no further
factual development is required to dispose of it.
Burke-Johnson is correct that Tirone was unable to testify in-depth about Burke-Johnson’s
employment skills or performance within the VA, and the Secretary does not dispute that Tirone did
not interview Burke-Johnson for the Staff Assistant position. Although it is conceivable that, in a
proper case, a Title VII plaintiff might adduce evidence of pretext by showing that an employer’s
review of her application was so cursory as to suggest that an impermissible consideration might be
at work, this is not such a case. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 340 (6th Cir. 1997)
(noting that in the plaintiff’s prior appeal, the Court reversed the grant of summary judgment and
remanded to the district court “to determine whether TVA in fact made a good faith determination
that [the candidate actually hired] was better qualified for the job”). It is undisputed that a panel
consisting of Tirone, Ventura, and a third unidentified person reviewed the applications of the three
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persons who applied for the Staff Assistant job. Moreover, Tirone had sufficient familiarity with
Burke-Johnson’s background and skills to be able to compare her with Cardona. Tirone testified that
Burke-Johnson’s scope of responsibility was not as broad as Cardona’s and that Cardona had
developed knowledge “beyond clinical issues or unit-specific patient-care issues” that made her the
more desirable candidate. On this record, it cannot be said that the selection process gave short-shrift
to Burke-Johnson’s application, or that even if Tirone and her colleagues did fail to give adequate
consideration to Burke-Johnson’s skills, that that failure was based on Burke-Johnson’s race.
2. Direct-Evidence Approach
Burke-Johnson contends that McCoy’s testimony should be treated as direct evidence of
discrimination. The district court properly rejected this argument.
In Hopson and Carter, this Court held that allegations of race discrimination made by persons
who were not involved in the employment decision do not constitute direct evidence of
discrimination. Hopson, 306 F.3d 433; Carter, 349 F.3d 273. Here, Burke-Johnson concedes that
McCoy had no involvement whatsoever in the hiring process for the Staff Assistant position.
Second, even casting aside the “decision-maker” gloss to the direct-evidence test, Burke-
Johnson ignores the well-entrenched principle that in Title VII cases, direct evidence “is evidence
that proves the existence of a fact without requiring any inferences.” Grizzell, 461 F.3d at 719.
Here, where McCoy did not testify that Tirone engaged in racial discrimination in her non-selection
of Burke-Johnson, inferences would surely have to be drawn from what McCoy did testify to—that
Tirone discriminated against McCoy, that Tirone disparaged Burke-Johnson, and that African-
Americans faced obstacles to advancement at the VA—to conclude that Burke-Johnson had been
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No. 06-1251
Burke-Johnson v. Dep’t of Veterans Affairs
denied the Staff Assistant job due to her race. The necessity of drawing inferences from McCoy’s
testimony disqualifies it as direct evidence.
Finally, Burke-Johnson contends that even if McCoy was not a decision-maker, this Court
should extend the Hopson/Carter rule so that statements by “supervisor[s] in close contact with the
decisionmakers,” qualify as direct evidence. This argument is unavailing for the reasons described
above: Whether evidence is “direct” turns on whether the factfinder would have to draw any
inferences to conclude that a hiring decision was attributable to unlawful discrimination. Thus, there
is no need for this Court to modify the Hopson/Carter rule because McCoy’s testimony fails the
threshold, i.e., “no inferences,” determination of what qualifies as direct evidence.
III. CONCLUSION
Because Burke-Johnson has not carried her evidentiary burden such that a jury could
conclude that the Secretary’s reasons for not promoting her to the Staff Assistant position are
pretextual, we AFFIRM the judgment of the district court granting summary judgment for the
Secretary.
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