Gregory Stokes v. Detroit Public Sch. ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0186n.06
Case No. 19-1773
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 31, 2020
) DEBORAH S. HUNT, Clerk
GREGORY STOKES, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) MICHIGAN
DETROIT PUBLIC SCHOOLS, )
) OPINION
Defendant-Appellee. )
)
BEFORE: GRIFFIN, WHITE, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Gregory Stokes worked for Detroit Public Schools (DPS)
for almost ten years. In his last position, he worked as the Acting Deputy Executive Director to
the Executive Director of Human Resources. He signed a six-month contract to serve in that role.
Near the end of his contract, Stokes applied for a job as the Executive Director-Talent Acquisition.
After interviewing three candidates, including Stokes, DPS hired a twenty-eight-year-old female
instead. And DPS did not move Stokes to another position after his contract expired, ending his
employment with DPS. Stokes filed this lawsuit, alleging failure to promote and unlawful
discharge because of gender in violation of Title VII and Michigan’s Elliott-Larsen Civil Rights
Act (ELCRA) and age in violation of the Age Discrimination in Employment Act (ADEA) and
ELCRA. The district court granted DPS’s motion for summary judgment. Because Stokes has
shown a genuine issue of material fact as to pretext for his Title VII and ADEA claims, we
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REVERSE and REMAND. But since he has failed to meet his burden of showing pretext under
Michigan law for the ELCRA claims, we AFFIRM the district court’s decision to grant summary
judgment to DPS on those claims.
I.
Stokes started working for DPS in 2006 as the Human Resources (HR) Administrator to
the Executive Director of HR and became the Talent Acquisition Manager to the Executive
Director in 2010. Though acting with different titles, his duties remained the same in both roles.
He advertised job opportunities, posted openings, helped oversee the interview processes, screened
resumes, corresponded with candidates, attended job fairs, and interpreted the collective
bargaining agreement, to name a few responsibilities.
DPS then promoted Stokes in 2013. He became the Interim Executive Director to the Chief
HR and Labor Relations Officer and then the Acting Deputy Executive Director to the Executive
Director of HR in July 2015. Interim Executive Director and Acting Deputy Executive Director
consisted of the same responsibilities, again just under different titles. In these roles he supervised
a recruitment team, helped the school district implement an enhancement of the HR system, acted
as a liaison between DPS and colleges to identify talent, worked with Teach for America to identify
talent, acted as a liaison between the unions and the school district, screened resumes, coordinated
the interview process, and onboarded new employees.
When he accepted the Acting Deputy Executive Director title, Stokes signed an
employment agreement that said he would serve in that position for a six-month term, from July
1, 2015 until December 31, 2015. On October 22, 2015, the Emergency Manager of DPS, Darnell
Earley, sent Stokes a letter reiterating to him that his contract would expire on December 31, 2015
because of “[e]conomic [n]ecessity and/or [] [r]eorganization.” (R. 16-6, Letter, PageID 843.)
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Earley encouraged Stokes to apply for a teaching position or another administrative position.
Stokes had received similar letters with largely the same content for two years, since he became
Interim Executive Director to the Chief HR and Labor Relations Officer. Yet DPS always renewed
his position, so this October 22 letter didn’t seem meaningful to him.
Around the time Stokes’s title changed to Acting Deputy Executive Director, DPS
contracted with The New Teacher Project, Inc. (TNTP), a consulting group, to help restructure
how the school district was run. DPS and TNTP executed a contract on June 15, 2015, and the
two amended the contract in 2016. Some of TNTP’s September 2015 to January 2016 goals
included: (1) “[f]inaliz[ing] the central office structure,” (2) “creat[ing] new job descriptions for
the new central office structure[,]” (3) “[d]esign[ing] an application and selection process for
central office hiring and provid[ing] direct support on prescreening, phone screening, and
interviewing for select roles[,]” and (4) “[a]ct[ing] as a strategic advisor to the Division of [HR]
on the implementation of central office reductions.” (R. 16-7, First Am., PageID 850–52.) So
TNTP, not DPS, mainly held responsibility for eliminating Stokes’s position, creating the new
Executive Director-Talent Acquisition (EDTA) position, and interviewing for the EDTA position.
Chanel Hampton, a twenty-eight-year-old female, external applicant, applied to DPS for
the job of Deputy Superintendent of Talent on November 3, 2015. She submitted her cover letter
and a resume,1 but seemingly did not submit transcripts from schools she attended. Her resume
1
Stokes argues that Hampton “padded” her resume because some of her jobs overlapped in
different cities. Nicholas Denton-Brown, a Talent Acquisition Manager for TNTP, explained that
all the jobs listed on her resume were compatible. Because of the way Teach for America works,
he explained, she could have multiple roles at Teach for America at one time, while still teaching
too. Errick Greene, Earley’s Special Assistant, confirmed this as well.
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showed that she had worked as a teacher for St. Louis Public Schools and in various positions at
Teach for America.
A Talent Acquisition Manager for TNTP, Nicholas Denton-Brown, worked with DPS
during this time. He helped recruit individuals for the new positions TNTP created for DPS during
the restructuring. Denton-Brown and the others working to fill the EDTA role thought that
Hampton did not meet the qualifications for the Deputy Superintendent of Talent position after
seeing her application and speaking informally with her on the phone. But Denton-Brown thought
she met the qualifications for the EDTA role and would fit the position well. So he redirected her
to the EDTA job instead.
After Denton-Brown informally prescreened Hampton, Errick Greene, the Special
Assistant to the Emergency Manager of the district, apparently prescreened her too.2 According
to an email, Greene and Emergency Manager Earley met with Hampton on December 3, 2015 and
seemed to think she did not have the experience for the Deputy Superintendent position. But they
“were both impressed by her” and wanted “to move her through the application/hiring process for
the ED Talent position.” (R. 15-14, Emails, PageID 392.) Denton-Brown learned of their interest
in Hampton and worked with the TNTP Project Manager, Chris Henderson, to get the job posted
quickly. This is because Hampton had another job offer at the time, and TNTP could not offer her
a job before the job had posted. Hampton apparently did not submit a new cover letter geared
toward the EDTA position.
TNTP posted the EDTA job from December 7 to December 11, 2015. Although DPS
normally held job application periods open for ten to fourteen days at that time, TNTP chose to
2
Denton-Brown said Greene would have screened Hampton. Greene, however, could not recall
many circumstances surrounding this situation when opposing counsel deposed him years later.
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keep the period open only for those five days. The day before TNTP closed the application period,
TNTP Site Manager, Megan Allegretti, emailed Denton-Brown and mentioned in passing Denton-
Brown’s experience with creative writing. Denton-Brown responded: “[A]nd suddenly a dragon
appeared, tendrils of smoke drifting from his molten nostrils, to drag off the interim ED of Talent
to ensure that schools be could [sic] effectively staffed for all!” (R. 15-22, Emails, PageID 559.)
Stokes, of course, was at the time Acting Deputy Executive Director to the Executive Director of
HR, which was named Interim Executive Director shortly before. Allegretti then replied: “On
that note, looks like you are the dragon for now. Just pulled Gregory’s resume from PeopleSoft
for ED, Talent. Only new resume added today. Let me know if you need anything else on moving
William and Gregory forward.” (Id.) Denton-Brown then said “Ugh!” (Id.) Chanel Hampton,
Greg Stokes, and Will Lyons, who was an HR Manager with DPS, were the three applicants for
the EDTA position at the close of business on December 11.
That same day, Chris Henderson, Denton-Brown, and Allegretti exchanged emails about
making sure TNTP conducted the interview process fairly, given the “sensitivity” of Lyons and
Stokes applying for the position too: “Given that Gregory and Will Lyons have applied for the
ED Talent position, I want to make sure we are on point procedurally so that our process can [be]
defended and clear records are in place.” (R. 15-25, Email, PageID 607.) And further into the
email Henderson also said: “I think we’ll be OK as look [sic] as we have clearly defined processes
in place and Will and Greg both get interviews[.]” (Id.) He pointed out some bases they should
cover beforehand, like providing interview rubrics to the panel, having the rubrics approved by the
Executive Director of HR, training interviewers, collecting signed conflict of interest forms from
phone screeners and interviewers, and collecting notes from Greene and Earley on their opinions
of Hampton. Henderson also wanted to “obtain confirmation that [Hampton] does not need to go
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through the process again.” (Id.) Presumably he was referencing the pre-interview process. It
appears Denton-Brown responded in part that he had “several examples of others not having to go
through the same selectin [sic] process here so we have precedents, especially when [Emergency
Manager Earley] has already interviewed folks.” (Id.)
Denton-Brown conducted pre-screening interviews for Stokes and Lyons. Then Stokes,
Lyons, and Hampton all interviewed for the job on December 18, 2015. Orma Smith and Greg
Vary, both Deputy Network Leaders of Operation at DPS, and Errick Greene were the
interviewers. The three interviewers received some degree of guidance on how to interview
beforehand. And they signed interview guidelines and a document saying they understood the
nepotism policy and had no conflicts of interest with any candidates. The parties did not produce
a signed interview guidelines sheet for Errick Greene, however, and he does not recall signing one.
Candidates had to receive an average score of 80 or above from these interviewers to be eligible
for the position.
After the interviews, the interview panel recommended Hampton for the EDTA job. She
received an average score of 83.6 from the interviewers, Lyons received an average score of 81,
and Stokes received an average score of 63.3. Interviewer Vary filled out a scoring sheet for “Greg
Stokes” and one for a “Will Stokes.” But a sheet showing calculations of Vary’s scores after the
interview has “Greg Stokes” listed above the numbers that someone added up to 643 and “Will
Lyons” listed above the numbers that someone added up to 84.4 And the numbers in those two
columns correspond to the numbers given for the eight subsections on the “Greg Stokes” and “Will
3
Though a correct calculation of those values shows a total less than 64.
4
Someone also incorrectly tallied this total. It should have been a 76 from Vary, meaning Will
Lyons’s average score should have been lower. To add to the confusion, in the final “total” box
on Vary’s “Will Stokes” scoresheet, someone (assumedly Vary) wrote a 64.
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Stokes” scoresheets, respectively. Then on the final recommendation sheet from the panel, Vary’s
score for Greg Stokes reads 64 and his score for Will Lyons reads 84.
Cassandra Washington, the Executive Director of HR, explained that the interview process
for the EDTA job consisted of several irregularities compared to how DPS conducted interviews
before. She admitted that some inconsistencies like the ones in the EDTA interview process would
normally require that the district interview the candidates again. But she also clarified that TNTP,
not DPS, held responsibility for the EDTA interview process and that the application procedures
and polices “were modified by the TNTP.” (R. 15-10, Washington Dep., PageID 317.) She did
not explain what procedures or policies TNTP modified, though. She noted that emergency
managers can make decisions without restriction by district policies or procedures.
Hampton started the job shortly after she received the offer. DPS extended Stokes’s
contract one more month so that he could finish outstanding projects. He apparently helped
familiarize Hampton with some of DPS’s systems during this time too. According to Stokes, his
retirement would have fully vested a few weeks after his job at DPS ended.
Stokes then filed this lawsuit, alleging unlawful discharge and failure to promote because
of age under the ADEA and ELCRA and gender under Title VII and ELCRA. The district court
granted DPS’s motion for summary judgment on all claims. This appeal followed.
II.
We review a grant of summary judgment de novo. Redlin v. Grosse Pointe Pub. Sch. Sys.,
921 F.3d 599, 606 (6th Cir. 2019). Viewing the evidence in the light most favorable to the
nonmoving party, we affirm if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Redlin, 921 F.3d at 606.
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III.
Plaintiffs can use either direct or indirect evidence to support discrimination claims. When
a plaintiff puts forth direct evidence, the factfinder need not draw any inferences to conclude that
the employer wrongfully discriminated. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570
(6th Cir. 2003) (en banc). But if a plaintiff puts forth sufficient indirect evidence, we may “draw
a reasonable inference that discrimination occurred.” Id. When a plaintiff uses indirect evidence
to support a claim under Title VII, the ADEA, or the ELCRA, the McDonnell Douglas burden-
shifting framework applies. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Geiger
v. Tower Auto., 579 F.3d 614, 622, 626 (6th Cir. 2009) (applying McDonnell Douglas in the ADEA
and ELCRA context); Wright v. Murray Guard, Inc., 455 F.3d 702, 706–07 (6th Cir. 2006)
(explaining that McDonnell Douglas applies to Title VII single-motive claims).
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of
discrimination. Then the burden of production shifts to the defendant to show a legitimate,
nondiscriminatory reason for the way it treated the plaintiff. If the defendant provides that reason,
the burden of production shifts back to the plaintiff to show that the defendant’s articulated reason
was pretext for discrimination. Miles v. S. Cent. Human Res. Agency, Inc., 946 F.3d 883, 887 (6th
Cir. 2020).
For its summary judgment motion only, DPS conceded that Stokes presented a prima facie
case for all his claims. So DPS next had the burden of showing a legitimate, nondiscriminatory
reason for discharging and not promoting Stokes. DPS did. It says (1) that Stokes performed
poorly in his interview and (2) he was not the best candidate for the job because DPS struggled to
recruit new teachers while Stokes was Acting Deputy Executive Director. See White v. Baxter
Healthcare Corp., 533 F.3d 381, 392 (6th Cir. 2008) (noting that poor interview performance is a
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legitimate, nondiscriminatory reason); Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 588 (6th
Cir. 2002) (finding that not performing satisfactorily constitutes a legitimate, nondiscriminatory
reason). So the burden of production shifts back to Stokes to show that DPS’s reasons were
pretextual. A plaintiff normally establishes pretext by showing that the proffered reason: (1) “had
no basis in fact,” (2) “did not actually motivate the employer’s action,” or (3) was “insufficient to
motivate the employer’s action.” Miles, 946 F.3d at 888 (quoting Chen v. Dow Chem. Co., 580
F.3d 394, 400 (6th Cir. 2009)). But a plaintiff need not follow these categories rigidly. Id.Plaintiffs remain free to try to show pretext in whatever way they see fit. Id.Stokes does not separate out his failure to promote and unlawful discharge arguments, so
we analyze them as one.5 Similarly, he mainly does not distinguish between his pretext arguments
for gender and age discrimination, so we analyze his pretext arguments as applying to both sets of
claims. But we do analyze his claims in the context of Title VII and the ADEA first and then the
ELCRA second. And within our Title VII and ADEA analysis, we look separately at whether
Stokes has shown that each of DPS’s proffered reasons are pretextual. First, we look at DPS’s
claim that Stokes performed poorly during his interview. Second, we look to DPS’s claim that
TNTP did not believe that Stokes was the best candidate for the job because DPS continued to
struggle to attract teachers with Stokes as Acting Deputy Executive Director.
Stokes’s pretext arguments fall under the first and second pretext categories: that DPS’s
proffered reasons lacked a basis in fact or the reasons did not actually motivate DPS’s actions.
5
We fail to see how this case involves an alleged unlawful discharge, because Stokes was on a
six-month contract. When a contract ends and an employee is not hired in a new position, of course
they would be discharged from the company. But DPS has not argued that this claim lacks merit,
so we treat it the same as Stokes’s failure to promote claim.
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IV.
A.
1.
DPS argues that it did not select Stokes for the EDTA position because of his interview
performance. In response, Stokes says that the irregularities in the interview process constituted
pretext for age and gender discrimination. Stokes provides evidence of irregularities during the
process, compared to how DPS usually conducted other interviews. For instance, Hampton did
not provide her transcripts, even though DPS had required candidates’ transcripts for other
positions in the past. And the application period closed after five days, which was shorter than
normal. In addition, the interviewers allegedly did not unanimously decide to recommend
Hampton for the role, even though the decision was supposed to be unanimous. Vary said to the
best of his recollection, he liked Lyons more than Hampton. And no party has produced evidence
of Greene’s signature on the interview guidelines. What’s more, a discrepancy occurred with
Vary’s scores. He filled out another scoresheet with the name “Will Stokes” and ultimately gave
that individual an 84 (even though the final box said 64). Then he filled out a sheet for “Gregory
Stokes,” giving him a 64 after the tally. So Stokes argues that these discrepancies provide evidence
of pretext, especially because Washington admitted that DPS would redo the interview process if
some of these discrepancies occurred.
But DPS retorts that DPS hired TNTP to restructure the whole system, including the
interview process, so no formal interview policy bound TNTP to perform this EDTA interview in
a certain manner. Thus, TNTP could decide against requiring transcripts, redoing the interviews
even if an initial scoring error seemed to exist, and so on.
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No. 19-1773, Stokes v. Detroit Public Schools
Assuming TNTP had to follow these policies, and viewing the evidence in the light most
favorable to Stokes, irregularities in a company’s interview process alone do not constitute pretext
sufficient to overcome summary judgment. See Jenkins v. Nashville Pub. Radio, 106 F. App’x
991, 995 (6th Cir. 2004) (finding that irregularities were only a factor toward a finding of pretext,
not dispositive). “[A]n employer’s failure to follow self-imposed regulations or procedures is
generally insufficient to support a finding of pretext.” Miles, 946 F.3d at 896 (quoting White v.
Columbus Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005)). What’s more, Briggs v. Potter
suggests that Stokes must show how the “irregularities prejudiced him in the selection process or
indicate ‘any dishonesty or bad faith’ on behalf of” DPS. 463 F.3d 507, 516 (6th Cir. 2006)
(quoting Williams v. Columbus Metro. Hous. Auth., 90 F. App’x 870, 876 (6th Cir. 2004)). Here
Stokes has failed to do so. He has not explained: why having Hampton’s transcripts would have
made a difference; why Vary’s messed up scoring would have meant Stokes’s weighted score
would have been over 80; why a unanimous decision, instead of two of the three decisionmakers
choosing him, would have meant that TNTP would have ultimately hired him for the role; or why
Greene allegedly not signing the interview guidelines, but signing the conflict of interest sheet,
would have changed the outcome. Thus, even assuming TNTP could not change the interview
process and irregularities existed, these “inconsistencies . . . relate entirely to matters of process
and have no bearing on [DPS’s] reasons for not promoting [Stokes].” Id.; see also Plumb v. Potter,
212 F. App’x 472, 480–81 (6th Cir. 2007) (finding no pretext even though the employer did not
follow two policies).
And these inconsistencies in the process do not show bad faith. TNTP found itself in a
unique situation in which it had the task of restructuring the district, meaning differences in
operation would understandably occur. Plus, it sought to fill a role where the usual person who
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helped manage interviews was one of the candidates. So these variances in no way show bad faith
on TNTP’s part. Overall, these alleged irregularities do not rise to a level of establishing a genuine
dispute as to pretext for Stokes’s Title VII and ADEA claims.
2.
Stokes next argues that he possessed far better qualifications than Hampton for the EDTA
role. Stokes argues that as Acting Deputy to the Executive Director, he had been performing the
essential responsibilities of the EDTA position, and Hampton had only a few years of experience
with Teach for America.
Qualifications evidence is “relevant to the question of pretext.” Bender v. Hecht’s Dep’t
Stores, 455 F.3d 612, 626 (6th Cir. 2006). In Bender, we clarified how this court assesses
qualifications evidence:
In the case in which a plaintiff does provide other probative evidence of
discrimination, that evidence, taken together with evidence that the plaintiff was as
qualified as or better qualified than the successful applicant, might well result in
the plaintiff’s claim surviving summary judgment. On the other hand, in the case
in which there is little or no other probative evidence of discrimination, 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. In negative terms, evidence
that a rejected applicant was as qualified or marginally more qualified than the
successful candidate is insufficient, in and of itself, to raise a genuine issue of fact
that the employer’s proffered legitimate, non-discriminatory rationale was
pretextual.
Id. at 626–27 (citation omitted). What’s more, a plaintiff’s subjective assessment of his
qualifications alone does not show pretext. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462
(6th Cir. 2004).
Yes, Stokes had more years working in HR or recruitment, as he emphasizes. But Hampton
had actual teaching experience. So she could have better related to teachers applying to the district,
known how to attract teachers to the district, and better understood which applicants were best
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suited to become teachers. DPS (through TNTP) saw that Hampton might be able to bring fresh
strategies and perspectives to the district, which may successfully help the district attract new
teachers. A reasonable decisionmaker could find that Hampton was better suited for the job for
these reasons. And “[i]f two reasonable decisionmakers could consider the candidates’
qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one
candidate’s qualifications are not significantly better than the other’s. Thus, [the] qualifications
evidence is not itself sufficient . . . to survive summary judgment.” Bender, 455 F.3d at 628.
Stokes’s subjective opinion that more years of working automatically means better
qualifications does not suffice. When looking at two qualified applicants, DPS (through TNTP)
made a business decision to select Hampton, with the thought that she might fill more teaching
vacancies. So we will not call into question this hiring criteria. See Browning v. Dep’t of the
Army, 436 F.3d 692, 698 (6th Cir. 2006) (“Questioning the [employer’s] hiring criteria is not
within the province of this court, even if the [employer’s] hiring process was entirely subjective.”).
Stokes has failed to show a genuine issue of material fact as to pretext for his Title VII and ADEA
claims based on qualifications evidence.
3.
It’s Stokes’s last argument—that DPS (through TNTP) preselected Hampton for the EDTA
position—that creates a genuine dispute as to pretext for Stokes’s Title VII and ADEA claims. We
have held that “preselection is relevant evidence of [an] employer’s motivation,” and it “operates
to discredit the employer’s proffered explanation for its employment decision.” Goostree v.
Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). Because DPS planned to offer Hampton the position
before the interview, Stokes has shown a genuine issue of material fact as to whether the interview
scores were the actual motivation behind DPS not hiring him for the position. Stokes points to an
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email sent by Denton-Brown on November 30, 2015, a few weeks after Hampton initially applied,
in which he, among other things, asked members of his team where Hampton’s status stood. He
mentioned, “Ideally she would interview for [the Deputy Superintendent of Talent] role and, if
strong but not quite qualified for that position as we and Errick Greene suspect, she would be
offered the [EDTA] position.” (R. 16-11, Email, PageID 1014 (emphasis added).) Saying that
Hampton “would be offered” the position implies that TNTP preselected her. Stokes also points
to an email from December 3, 2015 from Henderson to Emergency Manager Earley saying:
“[Hampton] has a competing offer she needs to respond to, so if you think she is the right fit we
will potentially have to keep her interested for a couple of weeks or find an alternative solution to
bring her on board quickly.” (R. 15-14, Emails, PageID 392.) And Stokes points to an email from
Greene saying: “Mr. Earley would like to move [Hampton] through the application/hiring process
for the ED Talent position. Obviously, we’d like to start and conclude the process as quickly as
possible.” (Id.)
Thus, Stokes has shown that TNTP may have preselected Hampton—or at least that a
rational juror could make that finding. And this could “operate[] to discredit” DPS’s claim that
the poor scores from Stokes’s interview motivated the decision to not renew his contract or not
promote him because the preselection occurred before the interview. A jury could conclude that
the interview scores were not the reason DPS did not pick Stokes for the EDTA role, because DPS
selected Hampton weeks before. Since we’ve noted that preselection alone can refute a
defendant’s proffered reason, Kimble v. Wasylyshyn, 439 F. App’x 492, 500 (6th Cir. 2011),
Stokes has shown that there is a genuine dispute regarding whether DPS’s interview justification
is pretextual.
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So even though Stokes did not show pretext through the irregularities or qualifications
evidence, he has provided enough evidence to show a genuine issue of material fact as to pretext
through the preselection evidence.6
B.
DPS also contends that it did not hire Stokes for the EDTA position because Stokes was
not the best fit for the role. DPS explains that it struggled to attract teachers while Stokes was
Acting Deputy Executive Director, though DPS does not point to any specific records to support
this. But Denton-Brown explained during his deposition that during the few years that Stokes
filled the Interim Executive Director and Acting Deputy Executive Director positions, Stokes
failed to fill hundreds of teaching vacancies in the district.
In response, Stokes explains that this issue never came up during his evaluations. He
received a “satisfactory” rating in January 2015 for “[c]ompletes work assignments” and “[a]bility
to follow through on a plan with minimal or no direction[.]” His ratings in June 2015 moved up
to “commendable” for those two categories. He also received a “commendable” rating for the
category that said, “meets established performance standards[;] does not produce substandard
products or services[.]” And he received “exceptional” and other “commendable” ratings in other,
less relevant categories. (R. 15-3, Evaluations, PageID 145–54.) The closest an evaluation came
to showing that Stokes was not the best fit for the role because DPS still struggled to fill open
teaching positions came from his June 30, 2015 evaluation:
6
Stokes also argues circumstantial evidence of age discrimination through Vary’s statements that
Hampton was more “enthusias[tic]” and “energetic” than Stokes. (R. 23-18, Vary Dep., PageID
2463.) But as the district court correctly pointed out, the use of “enthusiastic” and “energetic” do
not suffice to create a genuine issue of material fact as to pretext for age discrimination. See
Sander v. Gray Television, 478 F. App’x 256, 266 (6th Cir. 2012); see also Crabbs v. Copperweld
Tubing Prods., 114 F.3d 85, 89 (6th Cir. 1997).
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Greg would be even more effective if he were more persistent and insightful in
searching out the root cause of problems he encounters which impact quality and
operations of TA (e.g., TA team’s inability to accelerate the recruitment time line
and develop an effective process for screening and on-boarding teachers).
(Id. at 151.) These evaluations support both sides. On one hand, Stokes performed well and had
good evaluations. But at the same time, there is a question whether he filled teaching roles
effectively, such that he was the right candidate for the EDTA job.
That being said, good evaluations are enough to overcome allegations of poor performance.
See Cicero, 280 F.3d at 591–92 (“While [defendant] now says that [plaintiff] failed in several ways
throughout his employment, it never raised any serious complaints about his performance until
after it fired him.”). Although DPS raised a complaint in that June evaluation, Stokes also received
satisfactory, commendable, and exceptional ratings. So Stokes has shown a genuine issue of
material fact as to whether DPS’s reason—that Stokes was not the best fit for the role because DPS
still struggled to attract teachers—was based in fact. Thus, Stokes establishing a prima facie case
of discrimination, plus his showing of a genuine issue of material fact over the truthfulness of
DPS’s proffered reasons, is enough to survive summary judgment. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (If a plaintiff makes out a prima facie case and
provides “sufficient evidence to find that the employer’s asserted justification is false,” a trier of
fact “may . . . conclude that the employer unlawfully discriminated.” (emphasis added).)7 So we
reverse and remand on his Title VII and ADEA claims.
7
We recognize that Reeves outlined rare occasions when a prima facie case plus the plaintiff
refuting the employer’s proffered reasons may still result in summary judgment for the employer:
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V.
Unlike Title VII and ADEA claims, in which a plaintiff need only show pretext,
Michigan law imposes a higher burden on plaintiffs after the employer has
presented a legitimate, non-discriminatory reason for its employment actions.
Specifically, Michigan law requires that the plaintiff show that the employer’s
stated reason is pretext for discrimination. In Lytle, the [Michigan Supreme]
[C]ourt stated: [D]isproof of an employer’s articulated reason for an adverse
employment decision defeats summary disposition only if such disproof also raises
a triable issue that discriminatory animus was a motivating factor underlying the
employer’s adverse action. In other words, plaintiff must not merely raise a triable
issue that the employer’s proffered reason was pretextual, but that it was a pretext
for . . . discrimination.
Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 438–39 (6th Cir. 2002) (third and fourth
alterations in original) (citations omitted) (quoting Lytle v. Malady, 579 N.W.2d 906, 916 (Mich.
1998)). We noted that the Michigan Supreme Court decided Lytle before Reeves but found that
Lytle still seemed to be good law in Michigan. Id. at 439; see Hazle v. Ford Motor Co., 628
N.W.2d 515, 522 (Mich. 2001).
Here, Stokes has shown no evidence that discriminatory animus motivated DPS’s decision
not to hire Stokes as EDTA. He’s provided no indication that age or gender had anything to do
with the decision. The best he can point to are Vary’s statements that Hampton was
“enthusias[tic]” and “energetic,” but as described above, statements like that do not create a
Certainly there will be instances where, although the plaintiff has established a
prima facie case and set forth sufficient evidence to reject the defendant’s
explanation, no rational factfinder could conclude that the action was
discriminatory. For instance, an employer would be entitled to judgment as a matter
of law if the record conclusively revealed some other nondiscriminatory reason for
the employer’s decision, or if the plaintiff created only a weak issue of fact as to
whether the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred.
530 U.S. at 148; see Alberty v. Columbus Twp., 730 F. App’x 352, 360 (6th Cir. 2018) (applying
this principle from Reeves in the summary judgment context). But DPS has not shown sufficient
evidence to fall under those exceptions, so Stokes’s prima facie case plus pretext is enough for him
to survive summary judgment.
17
No. 19-1773, Stokes v. Detroit Public Schools
genuine issue of material fact over pretext. So even though Stokes has shown a triable issue for
his Title VII and ADEA claims, he has not for his ELCRA claims because he has shown no
evidence suggesting discriminatory animus.
* * *
Thus, for his Title VII and ADEA claims, Stokes has shown a genuine issue of material
fact as to whether Stokes’s poor interview performance was pretextual because DPS (through
TNTP) decided to offer Hampton the position even before the interview. And there is a genuine
issue of material fact as to pretext for DPS’s claim that Stokes wasn’t the best fit for the job because
he failed to recruit enough teachers. Because Stokes has shown a genuine issue of material fact as
to pretext for all DPS’s proffered reasons, see Smith v. Chrysler Corp., 155 F.3d 799, 806, 809
(6th Cir. 1998), we REVERSE the judgment of the district court as to the Title VII and ADEA
claims and REMAND for further proceedings. But we AFFIRM the district court’s decision as to
the ELCRA claims.
18