Tanesha DAVIS, Plaintiff-Appellant, v. CINTAS CORPORATION, Defendant-Appellee.
No. 10-1662.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: May 30, 2013.
Rehearing and Rehearing En Banc Denied Aug. 7, 2013.
717 F.3d 476
BOGGS, Circuit Judge.
Argued: Jan. 27, 2012.
Therefore, we hold that plaintiffs’ allegations are sufficient to survive a motion to dismiss. Plaintiffs could have made their fraudulent concealment argument more prominent in their opposition to defendants’ motion to dismiss, but they nonetheless presented the argument, and the district court failed to consider it.
VI.
For the foregoing reasons, we reverse, in part, that portion of the district court‘s judgment dismissing plaintiffs’ breach of contract claim, affirm the remainder of the judgment, and remand the case to the district court for further proceedings consistent with this opinion.
Before: BOGGS, ROGERS, and SUTTON, Circuit Judges.
OPINION
BOGGS, Circuit Judge.
Tanesha Davis sued Cintas Corporation, individually and on behalf of a class of female job applicants denied employment as entry-level sales representatives. She alleged that Cintas‘s hiring practices led to gender discrimination, in violation of Title VII, and caused Cintas to reject her application for employment twice. The district
I
According to Cintas‘s promotional materials, service sales representatives are “[t]he # 1 link between our customers and our company operations. The Service Sales Representative is Cintas.” More specifically, the position involves delivering and selling Cintas‘s wares—“corporate identity uniforms and value-added products“—and providing direct customer service.
Although Cintas is a large corporation with many locations nationwide, its corporate policy is “to run one business in many different cities instead of running many different businesses in different cities.” “[A]ll Cintas operations use the same terminology, use the same forms and paperwork, and ‘run their stores’ the same way.” Hiring for the service-sales-representative position is no exception. All Cintas locations use—and used at all times relevant to this claim—the “Meticulous Hiring System.” This policy provides: “No person will be hired in the company until [Cintas has] identified the traits and competencies needed to be successful in the position. The traits and competencies must be documented in a list of ‘must have’ and ‘preferred’ hiring standards for each position.”
For the service-sales-representative position, “Must Haves” include both objective and subjective elements. Objectively, applicants must achieve a minimum score on a standardized test given to all service-sales-representative applicants, have a driver‘s license and a GED or high-school diploma, and be able to lift forty pounds. Subjectively, applicants must demonstrate customer orientation, sales orientation, integrity, dependability, achievement orientation, flexibility, stress tolerance, openness to differences, tenacity, initiative, persuasiveness, professionalism, compensation compatibility, and a stable employment history. There are also both objective and subjective “Preferreds.” Objectively, Cintas would like candidates to achieve a score between twenty-one and twenty-seven on the Wonderlic-WPT test (a type of intelligence test); subjectively, it seeks candidates who have successful sales experience, successful customer-service experience, and the ability to work without supervision.
Cintas uses a sixteen-step process to determine whether candidates meet these criteria. After Cintas decides that a location needs a service sales representative and posts the job, managers screen applications and resumes. Next, managers conduct screening interviews, using a guide that contains pre-scripted questions, and invite qualified applicants to visit a Cintas location and take pre-employment tests. Managers then collect the applicant‘s application materials, and administer the Wonderlic-WPT test and the “ePredix SSR Test.” If an applicant scores well enough on these examinations, she receives a “1st In-depth Interview using [Cintas‘s service-sales-representative] 1st In-depth Interview Guide.” After this first interview, qualified applicants go on a “route ride,” and Cintas “[c]ollect[s] paperwork,” including tax forms and driving records. If the applicant completes her “route ride” successfully, she receives a
Although this process has well-defined steps, set as a matter of corporate policy, individual managers at different locations ultimately make the hiring decisions, based on local needs. Cintas‘s national hiring profile states that “[a]dditional Preferreds can be added to accommodate the needs of the Division, Group, or Location.” Some locations, for instance, emphasized sales experience over customer-service experience because of intense market competition, while others preferred the inverse because difficult economic conditions made keeping existing customers crucial.
Service sales representatives were historically male. From June 1999 to October 2006, more than ninety percent of the managers charged with hiring service sales representatives were male. This overwhelmingly male group overwhelmingly hired males. After Cintas implemented the Meticulous Hiring System in 2003, however, female hiring rose dramatically. Between 1999 and 2002, the percentage of women hired for the service-sales-representative position never rose above seven percent. In 2003, the year corporate-level management instructed other managers to “put the myth that females cannot be SSRs out of [their] mind and hire more women SSRs,” and implemented the Meticulous Hiring System, that number rose to 7.8 percent. In 2004, it rose to 10.9 percent, and in 2005 it rose to 20.8 percent.
Anecdotal accounts support the data suggesting that Cintas managers saw the service-sales-representative position as a man‘s position. According to a former manager, who was male, other managers at one Cintas location opined that women could not handle the responsibilities of a service sales representative. Sharon Punch-Johnson, a female applicant who was ultimately rejected, averred that a manager asked whether her husband would be comfortable with his wife working predominantly with males. In her deposition, Kristi Clement Williams, another female applicant, claimed that a manager suggested that females might not be comfortable in the service-sales-representative position because the job required going into men‘s locker rooms, and depended on interactions with customers in “a predominantly male environment.” Still another female applicant claimed in a declaration that a Cintas manager bluntly told her: “Cintas preferred to hire men in [the service-sales-representative] position[ ].”
Tanesha Davis, then a store manager for LensCrafters, first applied for a service-sales-representative position at Cintas‘s Franklin, Wisconsin location, Location 447, in 2003. Human-Resources Manager Christine Richards conducted a screening interview and took notes. Although she does not now recall the interview, Richards‘s contemporaneous notes suggest that she rejected Davis at the screening stage because Davis said that she disliked having to sell products that she considered overpriced, and that she wanted to continue working another job part-time. Richards, of course, is adamant that she did not reject Davis because of her race or gender. Rather, Richards claims, Davis was simply not the best-qualified applicant for Location 447‘s available service-sales-representative position. Approximately three
Davis applied again one year later. This time, she advanced further into the hiring process. She passed her initial screening interview, even though she expressed concerns about working in bad weather, and achieved the second highest score recorded during 2003 and 2004 on one of Cintas‘s standardized tests. Matt Presendofer, the manager who observed Davis‘s route ride, reported that “she did a lot of things well out on the route.” Presendofer even opined that, “from a customer standpoint and from a sales standpoint[] [s]he had all the attributes we wanted for a SSR candidate.” He expressed concerns, however, about her level of physical energy and her efficiency. As in 2003, Cintas ultimately chose not to hire Davis. Eight days after Davis‘s route ride in 2004, Location 447 hired another woman. While her 2004 application was pending Cintas hired three male service sales representatives, and hired a fourth man within two months after rejecting Davis‘s application.
This lawsuit, though, did not start with Davis. It began instead in January 2004 in the United States District Court for the Northern District of California, where a group of Cintas employees, which did not include Davis, filed a civil-rights class-action lawsuit under
Cintas next moved (1) for summary judgment on the individual claims of one of the California plaintiffs, and (2) to limit the Michigan case‘s purportedly nationwide class to the State of Michigan. Counsel in the California case sought leave to add Davis and another woman, Cindy Patterson, as named plaintiffs.
While these motions were pending, plaintiffs in both cases made a joint motion to certify a class, consisting of “all females who unsuccessfully applied for the SSR job at any time on or after June 12, 1999.” They requested certification for claims involving declaratory and equitable relief under
Ultimately, the district court denied class certification. Serrano v. Cintas Corp., Nos. 04-40132, 06-12311, 2009 WL 910702, at *1 (E.D.Mich. Mar. 31, 2009). It reasoned that the putative class did not satisfy
II
A
Class-certification litigation is the process of determining whether a plaintiff can meet these conditions. The analysis proceeds in two steps.
Under
In sum, then, a plaintiff must show that she meets all four
The district court must conduct “a rigorous analysis,” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982), at “an early practicable time ... [to] determine by order whether to certify the action as a class action.”
Because “[a] district court‘s class-certification decision calls for an exercise of judgment,” our review is narrow. Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 946 (6th Cir.2011). We reverse only if the district court abused its discretion or applied an erroneous legal standard. Id.
B
“Title VII ... contains no special authorization for class suits maintained by private parties. [Therefore,] [a]n individual litigant seeking to maintain a class action under Title VII must meet the prerequisites of numerosity, commonality, typicality, and adequacy of representation specified in Rule 23(a).” Falcon, 457 U.S. at 156. In 2011, the Supreme Court addressed this particular type of class certification in Dukes. Accordingly, our first task is to determine precisely what impact that case has on Davis‘s bid for class certification.
Dukes, like this case, involved allegations of gender discrimination. The plaintiffs alleged that Wal-Mart systematically discriminated against women in pay and promotion decisions. Dukes, 131 S.Ct. at 2547. Those “decisions at Wal-Mart [were] generally committed to local managers’ broad discretion,” although, particularly for promotion decisions, some objective requirements did apply. Id.
The plaintiffs brought a class-action lawsuit on behalf of 1.5 million women, under Title VII. Id.
Importantly for [the Court‘s] purposes, [the plaintiffs] claim[ed] that the discrimination to which they [had] been subjected [was] common to all Wal-Mart‘s female employees. The basic theory of their case [was] that a strong and uniform “corporate culture” permit[ted] bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart‘s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice. [The plaintiffs] therefore wish[ed] to litigate the Title VII claims of all female employees at Wal-Mart‘s stores in a nationwide class action.
For a 5-4 majority, Justice Scalia held that the case could not proceed as a class action because the plaintiffs could not establish commonality, within the meaning of
Justice Scalia next discussed commonality in the Title VII context, where plaintiffs like Dukes “wish to sue about literally millions of employment decisions at once.” Id. at 2552. “Without some glue holding the alleged reasons for all those [employment] decisions together,” he wrote, “it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id.
To determine whether Dukes‘s class had sufficient commonality, Justice Scalia went to a familiar source: Falcon. That case, he held, “describes how the commonality issue must be approached.” Id. at 2252-53. In Falcon, “an employee who claimed that he was deliberately denied a pro-motion on account of race obtained certification of a class comprising all employees wrongfully denied promotions and all applicants wrongfully denied jobs.” Id. at 2253. The Supreme Court reversed. It noted:
Conceptually, there is a wide gap between (a) an individual‘s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual‘s claim and the class claims will share common questions of law or fact and that the individual‘s claim will be typical of the class claims.
Falcon, 457 U.S. at 157. To bridge that conceptual gap, Justice Scalia reasoned, the party seeking class certification must show that the defendant “used a biased testing procedure,” Dukes, 131 S.Ct. at 2553 (citing Falcon, 457 U.S. at 159 n. 15), or she must produce “[s]ignificant proof that an employer operated under a general policy of discrimination ... if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. (citing Falcon, 457 U.S. at 159 n. 15). Dukes succeeded in neither of these tasks and thus did not meet Rule 23(a)(2)‘s threshold commonality requirement.
Justice Scalia also held, this time for a unanimous court, that “claims for monetary relief ... may not [be certified under Rule 23(b)(2)], at least where ... the monetary relief is not incidental to the injunctive or declaratory relief.” Id. at 2557. He reasoned:
at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule....
Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide re-lief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Ibid. The only possible exception, Justice Scalia continued, is “monetary relief that is incidental to requested injunctive or declaratory relief.” Id. at 2560 (internal quotation marks omitted). But the court did not decide the issue because the monetary relief Dukes sought, backpay, was not incidental to declaratory or injunctive relief. To the contrary, Wal-Mart had the right to raise affirmative defenses to each individual backpay determination.2 “And because the necessity of that litigation will prevent backpay from being ‘incidental’ to the classwide injunction,”
Justice Ginsburg concurred in part and dissented in part. She agreed with Justice Scalia‘s conclusion that
Dukes, in many ways, is similar to this case. Each involves a challenge to a national corporation‘s employment practices. In each, the allegedly discriminatory employment decisions are ascribed to a corporate culture allegedly unfavorable to women. In each, applicants had to meet a basic set of criteria, but managers retained significant discretion over the challenged employment decisions. And in each, the class representative sought to prove her discrimination claim with a combination of statistical and anecdotal evidence.
The district court declined to certify Davis‘s proposed class, based on
Rule 23(a)(2): Commonality
Under
The district court held that Davis did not satisfy this requirement. It reasoned, first, that Cintas‘s hiring process was not entirely subjective, and therefore might not “support a finding of a ‘general policy of discrimination.‘” Serrano, 2009 WL 910702, at *5 (quoting Bacon v. Honda of Am. Mfg., 205 F.R.D. 466, 477 (S.D.Ohio 2001)). But “[m]ore importantly,” it continued, “the hiring process in this case is conducted by thousands of Cintas managers at hundreds of Cintas facilities. Hiring decisions are made for a diverse range of reasons and depend on widely differing circumstances at each facility.” Ibid. The district court also pointed out that Cintas‘s hiring process had many different steps and, at some points, involved hiring managers who are women themselves. It reasoned, therefore: “Putative class members would have suffered the alleged discrimination in different ways at different stages of the hiring process, and depending on the different Cintas employees involved at each hiring stage.” Ibid. The court found Davis‘s statistical evidence unpersuasive, holding that Cintas‘s experts pointed to “discrepancies [that] undermine[d] a conclusion that the statistics are sufficient to demonstrate that there is a common, class-wide discriminatory impact against the putative class members.” Id. at *6. Equally unconvincing, it held, was Dr. Barbara Reskin‘s expert opinion that Cintas had a white-male-dominated business culture, which replicated itself in hiring decisions. Finally, the court did “not find that [Davis‘s anecdotal accounts were] compelling instances of discrimination against women.” Id. at *7.
In response, Davis argues that her “statistical evidence establishes a pattern of underhiring across locations ... [that] is more than sufficient to satisfy commonality.” Appellant‘s Br. 36. She also argues that the district court erred by holding that “the existence of the few minimal objective standards for the SSR job ...
Davis‘s arguments do not show that the district court abused its discretion, particularly in light of Dukes. Under the Dukes framework, Davis would have to show that Cintas “used a biased testing procedure” or “operated under a general policy of discrimination.” Dukes, 131 S.Ct. at 2553. As in Dukes, the gravamen of Davis‘s claim is not that the Meticulous Hiring System‘s objective criteria led to an anti-female bias, but that subjective decisions made by some of Cintas‘s managers favored males because of Cintas‘s male-dominated corporate culture.
“[S]ubjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991 (1988); accord Dukes, 131 S.Ct. at 2554. When plaintiffs challenge employment practices in a large, national corporation, however, “demonstrating the invalidity of one manager‘s use of discretion will do nothing to demonstrate the invalidity of another‘s.” Dukes, 131 S.Ct. at 2554. Unless a plaintiff can somehow show that the corporation‘s managers all used “a common mode of exercising discretion that pervades the entire company,” Dukes explains, “[a] party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” Id. at 2554-55.
The court in Dukes explained that the plaintiffs’ sociological, statistical, and anecdotal evidence—all of which was similar to the evidence offered here—was not sufficient to show a uniform, companywide practice of exercising discretion in a way that favored men over women. Applying the abuse-of-discretion standard, we affirm the district court‘s determination that Davis‘s statistical evidence, sociological analysis, and anecdotal accounts did not satisfy
Davis‘s experts suggested that women and minorities were under-represented in service-sales-representative positions companywide. Serrano, 2009 WL 910702, at *6 Cintas‘s experts countered by questioning Davis‘s experts’ methods and models,4 and concluding that “although some Cintas locations under-hired women and racial minorities, other locations over-hired women and racial minorities during the same period.” Ibid. The district court found Cintas‘s experts more persuasive.
Finally, Davis presented anecdotal evidence of Cintas managers telling women that the job involved heavy lifting, entering male locker rooms, and dealing with dirty laundry. The court found, first, that these statements “could be interpreted as instances of Cintas managers giving applicants full disclosure of the demands and duties of the SSR position,” and second that “[e]ven assuming that these statements constituted particular instances of discrimination, commonality is not satisfied; on the contrary, these statements illustrate that the circumstances of discrimination are highly individualized and cannot be adequately treated in a generalized class action setting.” Ibid.
None of these evidentiary determinations was an abuse of discretion. Combined, they led the district court to the same conclusion that the Supreme Court reached in Dukes: the plaintiff did not satisfy
Rule 23(b)(2): Injunctive or Declaratory Action
Davis moved for class certification under both
The district court held that Davis did not meet this requirement because, in addition to seeking declaratory and injunctive relief, she sought front pay and back pay. Serrano, 2009 WL 910702, at *9–10. It reasoned that Cintas‘s decentralized hiring policy meant that it did not act in a manner that applied generally to the class, and held: “the damages sought by Plaintiffs would require individualized determinations inappropriate for a [Rule 23(b)(2)] class action.” Id. at *10. Front pay and back pay calculations, the court continued, would “necessarily predominate over requested declaratory or injunctive relief and the requested damages cannot be re-
The Supreme Court unanimously spoke in a similar vein in Dukes. “[W]e think,” it wrote, “that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule.” Dukes, 131 S.Ct. at 2557. It continued:
Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Ibid. The Court reasoned that there might be an exception to this rule if monetary relief were incidental to the declaratory or injunctive relief the plaintiffs sought. Id. at 2560. In the Title VII context, however, the Court held that defendants are entitled to “individualized determinations of each employee‘s eligibility for backpay,” and thus “the necessity of [litigating individuals’ claims] will prevent backpay from being incidental to the classwide injunction.” Id. at 2560–61.
Davis claims that Dukes does not bar certification of her
The “trial-by-formula” system, which the Supreme Court rejected in Dukes, was similar. It provided that the district court would appoint a master to determine whether and how much backpay was due to a sample set of class members. The court would then multiply the total number of class members by the percentage of claims the special master determined were valid. Next, it would multiply that number by the average backpay award for sample claimants with a valid claim to determine the class‘s recovery. Dukes, 131 S.Ct. at 2560-61. The Supreme Court rejected this system under the Rules Enabling Act, holding that it abridged or modified Wal-Mart‘s statutory right to assert individual defenses to individual awards of backpay. Id. at 2561.
Davis‘s proposed system suffers from a similar, but even more troubling, infirmity. Dukes made clear that Cintas has the right to present defenses before paying any person an award of backpay. Davis‘s system deprives Cintas of that right. But worse, Davis‘s “shortfall-based” model, unlike the “trial-by-formula” system, makes no effort to individualize damages at all. Under the “shortfall-based” model, a woman denied a job in 2004 would receive precisely the same recovery as a woman denied a job in 1999. At least in the “trial-by-formula” system, plaintiffs have statisti-
III
That class certification is inappropriate in this case does not vitiate Davis‘s individual claims. We therefore proceed to consider whether the district court properly granted summary judgment for Cintas on Davis‘s individual disparate-treatment and disparate-impact claims.
Summary judgment is appropriate when “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.”
A
When a plaintiff alleges, based on circumstantial evidence, that she suffered disparate treatment in violation of Title VII, we analyze her claim using the familiar McDonnell Douglas burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). In the McDonnell Douglas framework, Davis must make out a prima facie case of discrimination. Id. at 802. If she meets this requirement, Cintas must offer some legitimate, nondiscriminatory explanation for its employment decision. Ibid.. If the company produces such an explanation, Davis must point out “evidence from which a jury could reasonably reject [Cintas‘s] explanation.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.2009). Davis bears this third burden, even when opposing a motion for summary judgment. Ibid.. She must, therefore, point to evidence that, taken in a light most favorable to her, could lead a reasonable jury to reject Cintas‘s proffered explanations.
While “a plaintiff‘s prima facie case, combined with sufficient evidence to find that the employer‘s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated,” there are also “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.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
Davis alleges two separate instances of disparate treatment—one by Richards in 2003, and one by Cintas‘s collective hiring personnel in 2004. Below, as here, Cintas conceded that Davis established a prima facie case of discrimination, and only litigated the issue of pretext.
A plaintiff may show pretext by demonstrating: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [the adverse employment action], or (3) that they were insufficient to motivate [the adverse employment action].” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 460 (6th Cir.2004); Chen, 580 F.3d at 400. This test, however, is not rigid, and “it is important to avoid formalism in its application, lest one lose the forest for the trees. Pretext is a commonsense inquiry: did the employer fire [or, as here, refuse to hire] the employee for the stated reason or not?” Chen, 580 F.3d at 400 n. 4. “[B]ecause a prima facie case [of discrimination] and sufficient evidence to reject the employer‘s explanation may permit a finding of liability ... [Davis need not] introduce additional, independent evidence of discrimination” to survive summary judgment. Reeves, 530 U.S. at 149.
1
The district court concluded that Richards‘s decision not to hire Davis in 2003 was based on legitimate, nondiscriminatory reasons. Specifically, it held that Davis did not provide evidence that Richards‘s proffered reasons for not hiring her—Davis‘s stated dislike for “up-selling,” her desire to remain employed part-time at LensCrafters, and the fact that she was applying for other jobs—were a pretext for gender discrimination. Avalos v. Cintas Corp., No. 06-12311, 2010 WL 1417804, at *7 (E.D.Mich. Apr. 5, 2010). Davis responds that: (1) Richards‘s reasons were mere speculation, since she could not recall the specifics of her screening interview with Davis, and thus had to rely on notes she made during the interview process; and (2) Richards advanced a number of men past the screening stage who were not as well qualified as Davis.
Davis‘s first argument ignores her ultimate burden to prove pretext. To survive summary judgment, Davis must provide evidence that could lead a reasonable jury to find that Cintas‘s proffered reasons for declining to hire her were pretextual. See Chen, 580 F.3d at 400. While Davis questions the reliability of Richards‘s “contemporaneous ... business records,” Appellee‘s Br. 60, she offers no evidence that Richards‘s notes were misleading, unreliable, or anything other than what Richards claimed they were: a record of the red flags that motivated her not to advance Davis past the screening stage.
Davis‘s second argument—that Richards‘s advancing less qualified men to later stages of the screening process is evidence of pretext—fares better. “Whether 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 v. Hecht‘s Dept. Stores, 455 F.3d 612, 626 (6th Cir.2006). If a plaintiff presents such evidence, “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.” Id. at 626-27. If, however, “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.” Id. at 627.
Whether Davis produces “other evidence of discrimination,” id. at 626, depends on the outcome of a battle of experts. Davis‘s expert, Dr. Thomas DiPrete, analyzed hiring data for Location 447. He stated: “Between 1999 and 2004, 78 men were hired into SSR positions [at Location 447], but only 2 women were hired into these positions. All of the hires in the period from 1999–2002 were men. During 2003 and 2004, 32 hires occurred; 30 of these hires were men and 2 were women.” This was so, even though women accounted for between 26% and 27% of service-sales-
To calculate the number of women available in the labor market, Dr. DiPrete used an amalgam of ninety-three different census codes. He “analyzed in detail the last occupation of a sample of approximately 300 applicants who were hired into the SSR-Uniform or SSR-FS jobs,” and “defined labor market availability by weighting the occupations from which Cintas hired in proportion to their presence in [his] sample.”
Cintas’ expert witnesses, Drs. Mary Baker and Janet Thornton, claimed that Dr. DiPrete‘s analysis was fundamentally flawed. Of importance to this discussion,6 Drs. Baker and Thornton criticized DiPrete for “measur[ing] availability [of applicants in the labor market] using the demographic composition of workers in many occupations,” instead of “using hiring benchmarks based on occupation 913 alone.”7
As Drs. Baker and Thornton point out, Dr. DiPrete‘s availability measure hinges on the assumption that “the men and women ... who work in the origin jobs are similarly interested and qualified for the SSR job.” However, as Dr. DiPrete points out, “census code 913 includes many jobs which are not ‘highly similar’ to the Cintas SSR job.” Which view to accept is ultimately an issue for the fact finder. But, in the current posture of this case, we must draw all inferences in Davis‘s favor. We therefore assume that Davis would win the battle of experts, and treat DiPrete‘s statistical analysis as evidence of discrimination. Accordingly, we now consider whether a reasonable jury could conclude that Davis was “as qualified as or better qualified than the successful applicant[s].” Bender, 455 F.3d at 626–27.
Location 447 hired three men soon after interviewing Davis. At least on paper, their credentials appear equal to, or slightly less impressive than, Davis‘s.8 One of the men, Tim Koelbl, was a onetime route sales driver for an ice company, who had a master‘s degree in education. Another, Andrew Hansen, had participated in a rental car agency‘s management program, which “stressed ... [c]ustomer service, sales, marketing and management.” The third, Damian Vertz, was a former college football player, who had worked as a parts technician and machine operator.
None of the three men had real-world experience in management; none had extensive experience in sales. Davis, by contrast, had worked as a manager for three different companies. She had significantly more customer-service and sales experience than any of the three male candidates, even if she disliked up-selling prod-
2
The district court also rejected Davis‘s 2004 disparate-treatment claim. It reasoned that Cintas chose not to hire Davis because of her poor performance on the route ride, not because she was female. Avalos, 2010 WL 1417804, at *7. It also dismissed as speculation Davis‘s claim that Cintas delayed another female applicant‘s route ride so that it could compare the two and hire one. Id. at *8.
On appeal, Davis opposes the first of these conclusions vigorously. She suggests that the district court erred by holding that she did not perform well on her route ride, since, in fact, the manager who conducted the route ride recommended her for a route that involved less physical exertion. Appellant‘s Br. 61. But, as Cintas notes, such a route did not exist when Davis applied for her position. Id. at 63. The two male candidates Cintas hired soon after Davis interviewed in 2004, unlike Davis, performed well on their route rides, demonstrating an adequate level of physical energy for the positions Cintas then sought to fill. Davis has not produced evidence suggesting that Cintas‘s hiring decisions were based on these candidates’ gender, rather than their ability to perform necessary job functions.
Davis leaves mostly untouched the district court‘s ruling that dismissed as speculation her argument that Location 447 had determined to hire only one female applicant in 2004. She discusses the factual basis for this claim, id. at 21, but only mentions it in passing in her summary-judgment argument, claiming that Location 447‘s general manager wanted to hire only one woman, and deferred to a lower-level manager‘s preference for a woman other than Davis. Such a perfunctory, unsubstantiated statement does not preserve the issue for appeal. Davis has not carried her burden to create an issue of material fact on pretext. The district court was correct to dismiss her 2004 disparate-treatment claim.
B
“By enacting
Once the plaintiff succeeds in making a prima facie disparate-impact case, the defendant may avoid liability by showing “that the protocol in question has ‘a manifest relationship to the employment.‘” Dunlap v. Tenn. Valley Auth., 519 F.3d 626, 629 (6th Cir.2008) (citing
The district court held that Davis failed to establish her prima facie case because she did not identify a specific employment practice. Citing our decision in Phillips v. Cohen, 400 F.3d 388, 398 (6th Cir.2005), it explained that, while an entire “decisionmaking process may be analyzed as one practice,” before such analysis is appropriate, “the plaintiff [must] demonstrate[] that the elements of a respondent‘s decisionmaking process are not capable of separation for analysis.” The district court found that Davis did not meet this burden. “[T]he fact that [she] advanced to different points,” it reasoned, “demonstrates that the hiring process is capable of separation.” Avalos, 2010 WL 1417804, at *10. Thus, the district court rejected her claim at the threshold.
Davis argues that the district court erred. She suggests that she did “identify the system‘s subjective elements as the cause of the challenged underhiring: (a) the managers’ subjective assessment of the applications and interviews; and (b) their unconstrained discretion to weigh the mix of negatives and positives for each applicant.” Appellant‘s Br. 63–64.
Davis‘s briefs, below and in this court, do discuss the possibility of considering an entire hiring system as one employment practice when its discrete parts cannot be separated for analysis. The gravamen of her claim, though, is somewhat different. At bottom, Davis argues that the Meticulous Hiring System‘s subjective elements, together, caused a disadvantage to women in Service-Sales-Representative hiring.
Even though it does not address the issue specifically, the district court‘s opinion suggests that, in a multi-step system, a “particular employment practice” must be one specific test, or one specific manager‘s exercise of discretion. Davis, by contrast, necessarily claims that “particular employment practice” is broad enough to comprise many different steps of a multi-step process, as long as those steps share a common characteristic: subjectivity.
To determine which of these interpretations is correct, we must give content to the phrase “particular employment practice” in
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual‘s race, color, religion, sex, or national origin.
However, the starting point of
The text of
Precedent from the Supreme Court, our circuit, and our sister circuits supports this conclusion. True, “[i]f an employer‘s undisciplined system of subjective decisionmaking has precisely the same effects as a system pervaded by impermissible intentional discrimination ... [the employer‘s] subjective or discretionary employment practices may be analyzed under the disparate impact approach.” Watson, 487 U.S. at 990-91.9 But even after Watson, “a plaintiff must [normally] demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack.” Wards Cove Packing Co., 490 U.S. at 657, 109 S.Ct. 2115. It is simply not enough to “point out that the [hiring practices] at issue [are] relatively less generous” to some workers than to others. Smith v. City of Jackson, 544 U.S. 228, 241 (2005).
Thus, Davis did not identify a “particular employment practice” within the meaning of Title VII by pointing to all of the subjective elements in the Meticulous Hiring System. She could still survive summary judgment, however, if she showed that the Meticulous Hiring System‘s many steps were so intertwined that they were not capable of separation for analysis. As the district court noted, though, Davis did not explain why the well-defined, discrete elements of the Meticulous Hiring System are “not capable of separation for analysis.”
Of course, as Davis pointed out at oral argument, the same small group of managers does conduct all of Location 447‘s interviews. And surely, Davis might urge, if the statistical data indicate that those managers have gender biases, their exercising discretion at different steps of the Meticulous Hiring Process should not insulate Cintas from disparate-impact liability.
This may be so, but the simple fact remains: Davis did not isolate the specific practices that caused the disparate impact she alleges; nor did she show that the managers’ various exercises of discretion in the Meticulous Hiring System were incapable of separation for analysis. Davis‘s disparate impact claims for both 2003 and 2004, therefore, fail.
IV
This case presents a number of complex legal and factual issues. In sum, we (1) AFFIRM the denial of class certification; (2) REVERSE the district court‘s grant of summary judgment on Davis‘s 2003 disparate-treatment claim; and (3) AFFIRM the district court‘s grant of summary judgment on Davis‘s 2004 disparate-treatment claim and both of her disparate-impact claims. We remand to the district court for further proceedings consistent with this opinion.