*2 §§ pursuant this matter to 28 U.S.C. DAUGHTREY, KEITH and Before jurisdic- appellate and 1367. This Court’s MARBLEY, District Judges, Circuit § tion under 1291. proper 28 U.S.C. Judge.* below, this For the reasons discussed MARBLEY, D.J., opinion delivered the Court finds that the district court erred KEITH, court, J., joined. in which Appellant that- Plaintiff conclusion DAUGHTREY, 439-41), delivered a (pp. J. failed to raise a issue of material dissenting opinion. separate regarding Appellee’s legiti- Defendant mate, reason, and, non-discriminatory OPINION therefore, judgment REVERSES court, the district and REMANDS the MARBLEY, District L. ALGENON proceedings. case for further Judge. Jr., Hopson, longtime employ- Eddie I. AND FACTUAL PROCEDURAL Corporation who DaimlerChrysler ee of BACKGROUND unsuccessfully open for several applied has company, many positions within History A. Factual promotions. have been Be- which would an Afri Hopson, (“Hopson”), to obtain these Eddie Jr. lieving that he unable can-American, race, jobs began working filed suit for Daimler- because of his Chrysler Corporation (“DaimlerChrysler” employer alleging disparate “Chrysler”)1 DaimlerChrys- Michigan under Title VII and or treatment * Marbley, working Algenon L. United 1. At the time that he started The Honorable Chrysler Corpora- Judge company, it still for the Southern District States District Ohio, sitting designation. tion. organized given complex. ler’s salaried workforce is Complex Administra- salary responsibility into a tor purposes Complex substitutes Security system. Salary Manager run in manager’s band bands from absence. Employees Band 89 to Band 98. at Band Beginning in mid *3 regarded 94 and above are as executives of without job success for seven openings in corporation. Significant to Hopson’s the company,2 all of which posted lawsuit, supervisors managers within internally at DaimlerChrsysler.3 For each security operation corporation of the job, Hopson submitted an application, but 91, 92, 93, in generally are Bands or de- rejected in favor of a white employee. plant on the size of the in which pending Stepaniak made each of the employment they Manager work. Senior of Plant decisions positions, for these with the as Security Operations, Stepaniak David sistance of various other managers. The (“Stepaniak”), is a Band 95 executive. positions for which Hopson applied, and Stepaniak’s proffered reasons for hiring Hopson was originally by Chrysler hired employees, other are as follows: worker, an assembly as but became a secu- 1978, a rity guard few months later. In he First, 1998, in August Hopson applied promoted to a salaried supervisory for a Band 92 supervisory position as a in position security. Hopson continued his security manager Mopar for the Parts Di- during education vision. The posting position for this company and earned an degree associate’s called for a degree bachelor’s in pre- loss security in prevention, loss a bache- vention, justice, field, criminal or a related safety lor’s in degree management, and a and five years to seven of supervisory in degree master’s administration. experience “security/fire in prevention.” Twenty-three employees, including Hop- In in apparently connection with a son, applied for the position. According to force, reduction of Chrysler its work de- Stepaniak, Picraux, he and Michael Hopson moted guard po- a non-salaried manager to person whom the posi- thereafter, Shortly sition. Hopson and report, ultimately tion would chose Warren others affected the work force reduc- Hawkins, male, a fill white the opening brought company, tion suit al- they because considered him to be the leging their demotions were the result job. most for the Conceding of race discrimination. part As Hopson posted job requirements, met the lawsuit, Chrysler settlement of that re- Hawkins, Stepaniak noted that thirty- promoted Hopson to a salaried supervisory veteran, year company was selected be- position at company’s assembly one of the managerial experience cause he had plants. Between Chrysler 1989 and lacked, Hopson and “rated highly promoted Hopson higher three times to Hopson than Mr. in his annual evaluation.” salaried positions plant. partic- at that ular, Second, promoted posi- 1996 he was Hopson in November tion of Complex Administrator —a leader- applied position training ad- ship position ministrator, in the operation at a position. also Band 92 addition, 2. attributed retaliation as the cause claims that in Decem- being for bis not able to obtain two of the position ber 1998 he was demoted from his applied. seven for which he He has complex position administrator to the of line appeal, abandoned his retaliation claim on claimed, supervisor. Hopson has not howev- and, therefore, only the Court will address er, that this demotion was based on race. currently five actions at issue. Fourth, posi- for this June posting at Da- security management position degree in that a bachelor’s tion indicates Complex. The re- imlerChrysler’s Detroit education, a related or justice, criminal job include a bachelor’s quirements for this years along with five required, field is justice, degree prevention, in loss criminal “security/fire experience supervisory field, years five to seven or a related other and sixteen prevention.” “security/fire prevention.” job. With re- employees posted applied, including Hop- Fifteen Stepaniak states position, to this spect he, Stepaniak along states that son. other decision-maker that he and the decision-maker, Larry selected the other male, whom Joyce, a white Sean chose *4 male, Dubyak, they a white whom deter- the most to be they considered for the mined to be “the best candidate job. According Step- for the person degree, job.” Dubyak requisite had “the aniak, training experience se- Joyce had experience nearly thirty years and has of security manager, curity employees as positions at Da- security, including in staff experience as a se- Hopson lacked while imlerChrysler headquarters experi- addition, Stepaniak In curity manager. manager” at another ence as a highly Joyce was rated notes that facility. Stepaniak also notes in annual evaluations. than his that amounted to a lateral position Dubyak, requested move for who had Third, Hopson ap- on March facility to a closer to his home. transfer support services position for the plied According Stepaniak, Dubyak’s selection position. According analyst, a Band 91/92 accommodate company] “allowed [the “requires a position posting, addition, request.” Stepaniak In [his] The also indi- degree.” posting bachelor’s that, claims while met the basic cates, however, relevant “significant qualifications position, for this he lacked in lieu of a may be considered experience Dubyak’s security manag- experience as requires further degree.” position rated in his highly er and was not ex- “progressively responsible years five annual evaluations. security or labor relations in perience Finally, Hopson applied position for the ap- Thirty-eight people management.” Manager of State Plants. Daimler- Out including Hopson. position, plied for Chrysler’s posting job for this indicates male, Sepanic, a white Ultimately, Michael in degree prevention, that a bachelor’s loss Stepaniak the position. hired to fill was justice, or a related field is re- criminal he and the other decision-mak- states that quired, may be offset a combina- “but Sepanic was most er determined currently process tion of education job, despite for the qualified person comparable experience security/fire pre- he lacked a bach- Hopson, unlike in- experience requirement vention.” The According Stepaniak, degree. elor’s progressively years cludes seven to ten “of signif- be a activities would “labor relations assignments plant within a se- responsible Sep- component” position, icant function, mana- curity preferably including ” experi- “significant anic chosen for his assignment(s).... employ- Fifteen gerial management representative ence aas including position, ees relations,” Hopson lacked. labor Ultimately, Stepaniak selected Hopson. addition, Sepanic Kondratowicz, male, *5 complaint, Hopson alleged his also that the compared the supervisors number of and company bring- retaliated him for managers to the number of security ing prior complaint of race discrimina- guards and found that 34.8% of union secu- tion. rity guards employed by DaimlerChrysler African-American, are period discovery,
After a of Daimler- while only 18.5% of Chrysler summary supervisors managers moved for judgment. are African- motion, purposes For American. Based on this Dr. company finding, Sase opinion conceded that had offered his “that there Hopson made out a exists an prima under-representation case of black discrimination 91, respect employment to the the Band 92 and 93 actions identi- classifications of supervisors managers fied in his in the complaint. company The then operations DaimlerChrysler presented legitimate, Corpora- its non-discriminato- ry decisions, tion.” reasons for its employment by described Stepaniak, and set forth After hearing argument, oral the district above. DaimlerChrysler argued then that court granted DaimlerChrysler’s motion Hopson could genuine not-raise a issue of summary judgment. The court con-
material fact with to whether the cluded that was unable to raise a company’s legitimate, non-discriminatory genuine issue of material fact as to wheth- reason for its actions pretext. constituted er DaimlerChrysler’s stated reasons for its addition, In that contended employment actions were pretextual. Hopson could not show a causal connection First, the district court found that Slater’s prior between his discrimination complaint testimony probative was not because Sla- any adverse action. ter admitted that he nothing to do In response, argued that he had with hiring question. decisions in Sec- presented ond, sufficient evidence tending rejected Hopson’s the court assertion show that the company’s specifications question stated reasons were pretextual. particular, were “tailor-made” to suit the person ultimately pointed deposition selected, testimony finding of Eth- allegation “is not (“Slater”), Third, elbert a manager supported by Slater evidence.” the court security area and one of supervi- presented held the statistical evidence non-moving return a verdict pretext. could not demonstrate did
by Hopson Inc., court, Liberty Lobby, v. Anderson party.” the statis- the district According to 2505, 242, 248, 106 they failed 477 S.Ct. because U.S. “incomplete,” tics (1986); Matsushita African-Ameri- L.Ed.2d 202 see also “the number reflect Corp., 475 v. Zenith Radio .jobs quali- or their Elec. Indus. Co. for those applicants can 1348, 574, 587, L.Ed.2d the court found “no 106 S.Ct. Finally, U.S. fications.” (1986) summary judg- (concluding any adverse evidence” when the evidence Hop- ment upon appropriate retaliation was based action trier fact to find for of race not lead the complaint filed could previously son’s non-moving party). court entered The district discrimination. Appel- the Defendant in favor of
judgment evaluating a motion sum 17, now January lee on must be the evidence mary judgment, judgment. appeals from light in the favorable to viewed most v. Kress non-moving Adickes S.H. party. REVIEW OF II. STANDARD 1598, Co., 90 S.Ct. & 398 U.S. summary grant of A district court’s (1970). non-moving par L.Ed.2d 142 novo review subject to de judgment is however, mere “may upon not rest ty, Co., v. Lincoln Elec. Peters this Court. spe ... ... allegations must set forth Cir.2002) (citations 456, 465 285 F.3d showing cific that there is facts omitted). 56(e); trial.” Fed.R.Civ.P. see issue for 2548; Celotex, 477 106 S.Ct. U.S. judgment appropriate “[i]f Summary City Dayton, 38 F.3d Searcy in depositions, answers pleadings, *6 Cir.1994). (6th Furthermore, mere ex file, on to and admissions terrogatories, support of evidence in istence of a scintilla affidavits, any, if show gether with the nón-moving position will not party’s materi any issue as to there is no sufficient; there must be evidence on be to moving party is entitled al fact and the find for jury reasonably which the could law.” Fed. a matter of judgment as Anderson, 477 non-moving party. 56(c). has the bur The movant R.Civ.P. 251, 2505; Copeland v. 106 S.Ct. U.S. are no genu that there establishing den of Cir.1995). (6th Machulis, 476, 57 F.3d 479 fact, may be ine of material issues demonstrating that by accomplished III. DISCUSSION sup evidence to non-moving party lacks challenge does not On-appeal, of its case. Celo port an essential element Catrett, 317, 322-23, ruling respect 477 the district court’s v. U.S. Corp. tex (1986); 2548, allegedly discriminatory L.Ed.2d 265 two of the seven 91 106 S.Ct. Pickrel, brought that were be Ebeling employment actions & Barnhart v. Schaeffer (6th Cir.1993). court, Co., 1382, nor does he chal fore the district 12 F.3d 1388-89 with re ruling the district court’s non-moving party lenge must response, Thus, those spect to his retaliation claim. probative evidence” present “significant Boyd abandoned. See some me claims are deemed [more than] that “there is show (6th Co., 283, v. Ford Motor 948 F.2d 284 as to the material facts.” taphysical doubt Cir.1991) Cos., 335, (concluding any issues Morris 8 F.3d Philip Moore v. (6th Cir.1993). by appellant “[S]ummary judg raised 339 — 40 ruling a court’s are considered aban dispute lie if the is about ment will not is, appeal by if doned on and not reviewable ‘genuine,’ fact that is material Court). for review is the district jury Pending such that a reasonable evidence is
433
disparate
disposition
of
Ngu-
court’s
actions. See
regarding
yen,
the above five
protected
of Discrimination
A. Direct Evidencé
Therefore,
the district court properly
Michigan
Under both Title VII
that Plaintiff-Appellant
concluded
fáiled
law,
may
plaintiff
prima
set forth
facie
a genuine
by
raise
issue material fact
pre
case of
discrimination
presenting direct evidence of Defendant-
direct evidence of the defendant’s
senting
Appellee’s discriminatory intent.
discriminatory
City
intent.
v.
Nguyen
(6th Cir.2000)
Cleveland,
559,
229 F.3d
B.
563
Circumstantial Evidence
v.
(citing
Hopkins,
Price Waterhouse
490
Discrimination
228,
1775,
109
Hopson
presented
job;
contends that he
that he
the
qualified
was
for
of DaimlerChrysler’s
employment
direct evidence
dis
that he suffered an adverse
(4)
decision;
virtue of
to
deposition
given
crimination
Slater’s
that the
was
class).
testimony
Hopson’s
in
his
opinion,
person
protected
his
a
outside
a
in
company’s
prima
race was
factor
the
decision Once the
a
plaintiff establishes
facie
case,
promotions
him
to
deny
the
for which he
the burden shifts
the defendant
applied. Although
manager
non-discriminatory
Slater is a
a
rea
legitimate,
offer
at
company,
employment
the
he admitted that he had no
for
adverse
action
son
the
253,
Burdine,
pro
in the
issue.
at
101
decision-making
involvement
450 U.S.
S.Ct.
(citing
at
411
respect
particular jobs
Douglas,
cess with
the
1089
McDonnell
U.S.
1817).
Furthermore,
802,
issue.
he did not
the
at
S.Ct.
If the defendant
reveal
Thus,
burden,
then the
of
opinion.
basis for his
while Slater’s meets this
burden
plaintiff to
opinion may constitute circumstantial evi
shifts back to the
production
discrimination,
believed,
proffered
if
that
is a
dence of
even
it
demonstrate
the
reason
require
Douglas,
does
the conclusion that unlaw
Id.
pretext.
(citing
not
McDonnell
1817).
ful
the
discrimination was a
factor
at
93 S.Ct.
When
motivating
U.S.
al
stat-
respect
the
to whether
plaintiff,
back to
burden shifts
evi
employment
forward with
decisions
though
must come
ed reasons
he
for
reason
the
company’s
pretextual.
the
dence that
at issue were
false,
need not
action is
he
employment
plaintiff
pre
“A
can demonstrate
that
evidence
the
independent
present
by showing
proffered
that the
reason
text
racial dis
pretext
is
for
proffered reason
(2)
(1)
fact,
actually
did
has no basis
not
Plumb
v. Sanderson
Reeves
crimination.
motivate,
challenged
defendant’s
con
Inc.,
133, 148, 120
Prod.,
S.Ct.
ing
U.S.
(3)
duct, or
insufficient to warrant the
(2000) (“[A]
plain
L.Ed.2d 105
challenged conduct.” Dews v. A.B. Dick
case,
suffi
combined with
prima
tiffs
facie
(6th Cir.2000)
Co.,
231 F.3d
employer’s
to find that the
cient evidence
omitted).
(citation
that
This Court finds
false, may permit
justification
asserted
the ba
presented
has
evidence on
that the em
of fact to conclude
trier
juror
find
of which a reasonable
could
sis
discriminated.”).4
unlawfully
ployer
DaimlerChrysler’s proffered
that
reasons
Here,
dispute
there
no
actually
did not
motivate its
Nor do
prima
has
a
case.
set forth
decisions.5
dispute
DaimlerChrysler
parties
that he
presented
has
presented
legitimate,
a
non-discrimina-
has
five
for
Defen-
which
tory
decisions.
reason
qualified,
he was
dant-Appellee concedes
is that
complaint
appeal
chief
on
rejected
and for
he
he
Hop-
before
ruling
court erred
an
given
an issue of fact'
was even
interview.
It strains
son failed to raise
during
deposi-
plaintiff has
that the
the Warren Hawkins testified
4. The dissent states
Depot
Mopar
tion that he was
as the
proving
hired
that the defendant’s non-
burden
Manager
compa-
Security
April
1998. The
discriminatory
pretext,
reason is
however,
ny
job,
July
post
did
not
until
the defendant's action is
actual reason for
year.
discrepan-
Hopson argues that
this
majority recognizes that
discrimination.
cy
company
no
shows the
intention
always maintains the burden of
plaintiff
conducting meaningful
search for
proving
engaged in
that the defendant
inten-
'
however,
likely,
More
Burdine,
candidates.
Hawkins
450 U.S.
discrimination. See
tional
clarified,
simply
mistaken about the date on which
First, his reasons for not August 1998, in hav Hopson applied ing given Hopson any one for a Band these five supervisory position aas positions. again, Once security Defendant manager, which failed to required a bache- indicate the extent which degree Joyce’s lor’s in prevention, loss evalu criminal ations were justice, better than field, Hopson’s.6 or a related and five to seven years of supervisory experience in security On March 15,1999, Hopson applied for a prevention. fire The Plaintiff only had position of support analyst, services required bachelor’s degree, but also required a bachelor’s degree, but noted had a degree. addition, master’s that significant experience relevant may be Defendant conceded Hopson had the considered in lieu of degree. posi- required supervisory experience. Despite tion also required years five of progres- met require- these sively responsible in experience security or ments, Chrysler Daimler ultimately chose labor relations management. According to Hawkins, Warren male, white to fill the counsel at argument, oral and not contra- position because “he had managerial expe- record, dicted Hopson had this ex- rience that Hopson lacked” and he “rated perience. above, As noted Hopson had not highly more than Mr. his annual only a degree, bachelor’s but a master’s evaluation.” The state, Defendant did not degree. Nonetheless, Stepaniak hired clear, nor is the record as to the manner in male, white one Michael Sepanic, who which Hawkins rated more highly than lacked a degree, but, bachelor’s in Stepan- Hopson. Nor did the Defendant state words, iak’s “significant had experience as type of managerial what experience Haw- a management representative in labor re- kins had that lacked. again, lations.” Once Stepaniak relied on Similarly, in November when Hop- the fact Sepanic was rated high- more son for a training administrator ly than evaluations, his annual position, which required a bachelor’s de- although the Defendant failed to offer evi- gree justice, education, criminal or a dence higher of this rating. field, related along with years supervi- five sory Fourth, experience in “security/fire preven- June Hopson applied tion,” rejected he was for a essentially management position. This same Stepaniak, reason. -required also decision bachelor’s degree maker, male, chose a white five to Joyce, years Sean experience seven securi- whom he considered ty/fire prevention. be- Stepaniak selected Joyce cause training Larry Dubyak, male, secu- a white he whom rity employees as a security manager, determined to be the best candidate for *9 while allegedly lacked that experi- job. the Dubyak a degree and a During argument, oral defense counsel con- evaluations. ceded that had "excellent” annual of practice or pattern bespeak secu- stances in experience of amount
comparable Plain- in the which resulted discrimination at Daimler- including staff rity view, In our being promoted. at not manager tiffs aas and Chrylser, issue of genuine contains a indi- this record facility. Stepaniak another judg- summary makes fact qualifications, material that, addition cated com- inappropriate. the job allowed ment the Dubyak awarding to a transfer for request his to honor pany does not “Title VII recognize We Additionally, home. to facility closer management traditional lawful dimmish Dubyak rated intoned that again Stepaniak among qualified choosing prerogatives than evaluations annual in his highly more Gould, F.2d v. Wrenn candidates.” Stepaniak’s than Other Hopson. did Cir.1987). recog- We also 493, 502 Dubyak no evidence claim, there was however, nize, that: Hopson, nor than highly rated often come victims Stepaniak consid- ‘[discrimination any evidence there and supervisory witnesses process for without request legal ered indicating that he considered vein little direct the same role they home. have wrongs closer to to move of the request nature precise Dubyak’s discrimi- charging ... Cases suffered.’ position Finally, Hopson and prove uniquely difficult nation are which plants, of out-of-state manager evi- circumstantial upon often depend “which degree, but a bachelor’s required part because .... ‘This true dence of edu- by a combination may be offset subtle.’ ... is often ... discrimination compara- in progress currently cation knowingly dis- who employer ... ‘[A]n security/fire prevention.” ble rec- no written may ... leave criminates re- course, education met the Hopson, the forbidden motive revealing ords position gave Stepaniak quirement, one.’ orally no it communicate may male, Kondratowiez, a white to Thomas in em- proof method ... The distinct degree, but a bachelor’s not have did who ... arose cases discrimination ployment Stepan- one. getting process in the recognition Court’s Supreme out of the best Kondratowiez iak found employer’s an evidence of that direct prior management because applicant or be unavailable will often motivation not ev- reasons Stepaniak, for experience. acquire. difficult to record, completely discount- in the idenced Hop- experience that any management ed & de Nemours E.I. DuPont v. Sheridan bachelor’s had, as Hopson’s well son Cir.1996) (cita (3d 1061, 1071 Co., F.3d degrees. and master’s omitted); Price Waterhouse see tions instances, U.S. S.Ct. Hopkins, foregoing each of the (1989) (O’Connor, J., con non-discriminatory rea- 104 L.Ed.2d legitimate, alleged (“[T]he purpose entire curring) man- specify failed to vague, son was case is to Douglas prima were McDonnell the white ner in evi that direct compensate of differ- degrees or the qualified, better hard Moreover, discrimination of intentional dence evaluations. in the annual ence consider light of these by.”). unfathomable, come Hop- given virtually it is very ations, finds the Court management experi- education son’s sub in the matter least, the circumstances even interviewed ence, that he was of mate to a issue give rise Indeed, judice a reason- positions. these any of fact as whether rial these find that circum- juror able could
437 proffered actually reasons particular motivated has testified that he believed employment decisions. discrimination to be involved clearly pro- vides some evidence that addition was evidence, foregoing case, and Defendant-Appellee’s presented has deposition prof- tes- fered Slater, reasons for timony of Ethelbert its employment a Band 93 deci- sions manager false. operation. During deposition, his Slater Finally, Hopson presents statistical evi- that, testified opinion, his Hopson’s dénce that creates a genuine issue mate-
race was factor the company’s deci- rial fact with respect to whether Daimler- sions not to hire him jobs for Chrysler’s non-discriminatory reason is which he applied. Although opin- Slater’s pretext. In particular, Hopson presents ion does not constitute direct evidence of Sase, the affidavit of Dr. who observes that discrimination, as Slater has conceded 34.8% of the security guards at Daimler- he decision-maker with Chrysler black, are only while 18.5% of the respect to these openings, it certainly company’s security managers are black. constitutes circumstantial evidence dis- Dr. Sase concludes that this disparity is crimination. aAs Band manager, Sla- statistically significant, and that it indi- presumably ter had knowledge regarding cates that African-Americans are under- company’s practices and policies represented in supervisory and manage- decisions, and qualities positions ment in the company’s security and that must be possessed by operations. managers within secu- plaintiffs “When a statistics indicate a rity operation. Furthermore, as disproportionate [employment] rate for a supervisor, Slater was aware his protected there group are possible three strengths weaknesses, and how he explanations for the discrepancy: the op- might perform the various eration of legitimate criteria, selection which he applied. In light of this knowl- chance, or the defendant’s bias.” Barnes edge, Slater no doubt able to form a Inc., v. GenCorp 896 F.2d competent opinion regarding why Hopson Cir.1990) (citations omitted). passed over for has jobs. certain Cer- trial, demonstrated that tainly, the disparity Hopson will between have to dem- percentage onstrate that opinion Slater’s African-American secu- is connected rity guards African-American manag- decision-makers’ attitudes. actual chance, ers is not Jacklyn due to See v. as Schering Dr. Sase Plough Health has care Prods. found the Corp., difference to statistically sig- Sales be F.3d (6th Cir.1999) that, nificant. (stating See id. at for a 1468-69 lay (finding wit opinion ness’s when a testimony admissible, to be demonstrates a “signifi- the opinion must be cant statistical disparity” in rationally employ- based on rate, the witness’s perceptions); ment he provided has Feazell Tro “strong evi- Prods., picana Inc., dence” that F.2d chance is not the cause of the (11th Cir.1987) (finding that a manager’s pattern). Thus, the Court is opinion' about superiors’ actions is ir left determine whether the likely relevant unless clearly connected to cause of the disparity is Defendant-Appel- attitudes). superiors’ At bias, the summary improper lee’s or legitimate selection judgment stage, however, the fact that a where, criteria. We here, hold that 93 manager Band with knowledge significant about statistics are coupled with inde- the company and the security operations pendent circumstantial dis-
438 Plaintiff Therefore, finds that this Court bur met his has
crimination, plaintiff the - issue a raised has Appellant statistical demonstrating that the den De- to whether respect fact with material to the due likely than not is disparity for reasons proffered fendant-Appellee’s not bias, the defendant defendant’s pretextual, actions were employment its See id. judgment. summary to entitled the REVERSES hereby that, when, face of in the (concluding 1469 judg- summary granting judgment court’s legitimate, a present statistics, defendants respect Defendanb-Appellee ment to explain each non-discriminatory reason claim of discrimina- Appellant’s ac to Plaintiff discriminatory employment allegedly VII, 42 to Title pursuant brought sum tion are entitled tion, defendants the § 2000e-2000e-17. can plaintiffs the U.S.C. unless mary judgment explana defendants’ that the show either Rights Act Civil 2. Elliott-Larsen plain the suspect or inherently are tions analysis appli or burden-shifting direct circumstantial other The present tiffs basic proffered is also claims suggesting federal Hopson’s evidence cable trae). Thus, by present arising under claims are not state applicable reasons with Slater’s along Motor v. Ford Hazle ing law.8 See Michigan statistical a genuine 515, has raised 521-22 testimony, Co., 628 N.W.2d Mich. however, Daimler- law, to whether respect (Mich.2001). federal issue Unlike em for its reasons on Chrysler’s proffered burden higher a imposes law Michigan pretext.7 constitute decisions ployment has employer presented after the plaintiffs for non-discriminatory reason legitimate, remand, that, on recognizes Court The Specifically, actions. employment various may challenge Defendant-Appellee plaintiff requires that law Michigan Daim- As statistics. aspects reason employer’s stated show that appeal, Dr. out on points lerChrysler Lytle v. See for discrimination. pretext identify per- do statistics Sase’s 153, 579 N.W.2d Mich. Malady, 458 who workers African-American centage of stat (Mieh.1998). Lytle, court and mana- supervisory ed:' they identify the do nor positions, gerial articulated employer’s anof [Disproof who of African-Americans
number deci- an adverse Nonetheless, reason “[a]t positions. for such if only summary disposition sion defeats is not stage, a judgment summary issue raises a triable also disproof such every pos- anticipate rebut required a moti- animus was discriminatory valid sta- his otherwise weakness sible employer’s underlying the factor vating at 1467 n. 13. Id. evidence.” tistical evi- accepts statistical Michigan law also 8. questionable basis also notes Court The legitimate, defendant's sup- proof that legitimate dence allegedly criteria non-discriminatory decisions with for its DaimlerChrysler's port reason Hopson applied. Dixon promotions pretext. See constitutes decisions employee was select- who particular, Inc., each Mich.App. Grainger, W.W. have noted to over ("The ed for (Mich.Ct.App.1987) N.W.2d evalua- highly on his annual rated more been may establish- be relevant in use statistics present evidence parties did not tion. inor of discrimination ing prima case are conduct- evaluations how explaining such de- for a proffered reasons that the showing information, having that Without ed. pretextual.”). are conduct fendant’s that the annu- possibility recognizes the Court inherently dis- are al evaluations themselves criminatory. *12 words, adverse action. In other plaintiff IV. CONCLUSION must not merely raise a triable issue Plaintiff-Appellant presented has suffi- that employer’s the proffered reason cient evidence raise genuine a issue of pretextual, but that it a pretext material fact with respect to whether De- for ... discrimination. fendant-Appellee’s legitimate, non-discrim- Although Id. Lytle was issued before inatory reasons for employment its deci- Reeves, it appears that Lytle is still good pretextual, sions are and whether they are law with respect to this issue in Michigan. pretext a Therefore, discrimination. Thus, having concluded that Hopson has the judgment of the district court is RE- met his burden of raising a genuine issue VERSED, and the case is REMANDED of material fact with respect to whether for further proceedings in accordance with DaimlerChrysler’s stated reasons for its Opinion. this employment decisions are pretext, Court now turns to the question of wheth- DAUGHTREY, Circuit Judge, er Hopson has raised genuine a issue of dissenting. material fact with respect to whether Da- imlerChrysler’s stated I pretext reasons are Because conclude that the district for discrimination. court was correct in granting summary judgment defendant, I respectfully
The Court finds that Hopson’s evidence dissent from majority’s decision to re- genuine raises a issue respect verse order and remand the case for whether the proffered reasons constitute trial. The district court found that pretext for discrimination. Dr. Sase’s sta- plaintiff had not established unlawful tistics, dis- when coupled with Slater’s testimo- crimination upon evidence, based direct ny, tend to show if Defendant-Appel- he had made out prima employment lee’s decisions were not based case based on circumstantial evidence. legitimate criteria, on then they were The court also found that the defendant based on fact, racial animus. while the provided a legitimate business reason statistical discrepancy may have arisen for failing to promote Hopson specifical- due to some other factor yet taken into — ly, other applicants were quali- better account, testimony Slater’s indicates that fied than the plaintiff the only possible explanation for Defen- question. Thus, the dispositive question dant-Appellee’s decisions, becomes plaintiff whether the can establish legitimate other than employment criteria, pretext on the part the defendant is racial discrimination. relying upon justification for its ac- Therefore, the Court finds that Plaintiff tions. Appellant has raised a genuine issue of material fact to whether De- majority concludes that there is suf- fendant-Appellee’s proffered reasons for ficient evidence in the record to give rise actions pretextual, genuine to a issue of material on and hereby REVERSES the district question pretext, solely based on a com- judgment court’s granting summary judg- supervisor bination of Slater’s opinion ment to Defendanb-Appellee with respect racial discrimination accounted for to Plaintiff Appellant’s claim of discrimina- company’s actions with regard tion brought pursuant to Michigan’s El- and statistical evidence showing disparity liott-Larsen Act, Civil Rights Mich. Comp. between minority representation in the 37.2101, § Laws seq. et force work the ranks of man- and on wholly speculative, may be conclu- with this agree cannot I agement. testimony offered statistical questionable cited sion, because primarily addition, another I find this case. to create insufficient simply that sum- concluding has basis compelling fact, because issue In four appropriate. legiti- mary judgment to show failed otherwise *13 by the defendant taken by the actions forward the five put reason business mate defen- appeal, the on that are contention pretextual. defendant other applicant an that determined dant the district agrees with majority The the for was better than con- testimony does not that Slater’s court basis on only not the in question position dis- unlawful “that evidence direct stitute experience credentials academic in Da- factor motivating awas crimination basis also on the but company, the within actions,” that out pointing imlerChrysler’s that evaluations performance annual in the decision- involvement “had no Slater The ma- plaintiffs. the to superior were partic- making process regarding testimony that indicates jority the regard, this jobs at issue.” ular be- be discounted should evaluations the “did not that Slater *14 instance, chosen each and it
company’s prerogative to determine which
among those promote. Hop-
son had been the beneficiary of at least promotions
three such between 1989 and Perhaps
1997. after some years he had advanced to limit
to which him, carry abilities could
we all do at some point in our careers. sound,
That conclusion is as based on this
record, as the majority’s speculation that
his failure to advance farther was some- product
how the of unlawful discrimina-
tion. reasons,
For these I would affirm the
judgment of the district court. COBAS,
Nelson Petitioner-Appellant,
Mary BURGESS, Respondent-Appellee.
No. 02-1292.
United Court of Appeals, States
Sixth Circuit.
Sept. notes fill Stepaniak Thomas a white Mr. in his highly position, than based on his conclusion “rated more ap- qualified” Kondratowicz was the “best annual evaluations.” hired, Kondratow- plicant. When he was sors. When asked whether he believed process getting icz was a bache- race was a factor in his not degree, thirty years obtaining jobs lor’s and had almost for which he applied, including at the man- company, replied, Slater my opinion, yes.” “[i]n however, agerial experience. Hopson, did also emphasized qualifica- his own tions, managerial experience. not have and argued that “it is evident that [the company] specifi- tailor-made the History B. Procedural cations to fit the person [white] who ulti- mately promoted into the position.” foregoing Based on-the adverse employ- decisions, Hopson ment filed suit against Finally, Hopson' submitted an affidavit company August alleging Sase, Ph.D., from John an economist at VII, employer violated Title U.S.C. affidavit, University. Oakland In his Dr. 2000e-2000e-17, § and the Elliott-Larsen Sase stated that he performed a statistical Act, Rights Comp. Civil Mich. Laws analysis of data provided by Daimler- 37.2101, § seq., by et discriminating Chrysler regarding the racial composition him on the basis of his race. of the company’s security department. He
Notes
notes majority also “failed case, cause, the defendant in each “Hop- that opinion” for his the basis reveal appli- [the which the extent to indicate to company’s the a factor race was son’s Hop- than were better evaluations cant’s] for promotions deny him the decision the McDon- ruling turns But this son’s.” reason, Sla- For this applied.” he That its head. analysis on Douglas nell for inadmissible may well be opinion ter’s places clearly unequivocally analysis that, in foundation, an outcome lack of that prove the burden on the ma- the severely undercuts my judgment, being were evaluations performance the that Slater’s later determination jority’s reason the actual when pretext as a used opinion neverthe- groundless apparently dis- actions racial company’s for the evidence circumstantial “constitute[s] less record, how- There is in crimination. of discrimination.” the de- whatever that ever, no indication discounted court also district the evaluations on reliance fendant’s evidence, that finding statistical plaintiffs Nor legitimate. other than question was percentage disparity between the com- any reason to disbelieve there security guards African-American last fifth and that pany’s assertion managers could of African-American that management candidate pretext, because establish not be used to superior num- “to show the no there burden it Again, was Hopson’s. applicants African-American ber of by cited reasons the business prove that qualifica- or their jobs [management] those pre- for its defendant decisions evi- the statistical The fact tions.” textual, way around. not other as the “incomplete,” legally was thus dence it, is sim- correctly described court concedes, circuit our majority As the al- majority, by the addressed ply not does “Title VII recognizes precedent basis are cited the statistics though management pre- traditional diminish prof- defendant’s concluding can- among qualified choosing rogatives pretextual. actions was reason for fered Gould, F.2d didates.” Wrenn Cir.1987). it my judgment, majori- with the Hence, agree I cannot prerogative was the exercise jury case to a send the ty’s decision to case. in this actions defendant’s which led opinion, merely on Slater’s based Certainly, I can see no issue of material fact that would lead to the oppo- site conclusion. majority, my Unlike the credulity is not “strained” this record. There was obviously heated competition question- no case —in were there fewer than applicants and in promotion, one case there were 38 applicants. Undoubtedly, many of these applicants were at minimally least quali- fied for promotion, only one could be