Karyn RISCH, Plaintiff-Appellant, v. ROYAL OAK POLICE DEPARTMENT, Defendant-Appellee.
No. 08-1883
United States Court of Appeals, Sixth Circuit
Argued: Aug. 4, 2009. Decided and Filed: Sept. 23, 2009.
581 F.3d 383
KAREN NELSON MOORE, Circuit Judge.
A pending [DUI] charge on an accident report is not proof of evidence of a commission of an illegal act, however, driving without a license or automobile insurance coverage under Mississippi law, is an illegal act; neither of which require a conviction to be considered illegal.
I agree with the lead opinion that Majestic is thus precluded from relying upon the DUI charge to justify its benefits denial. See Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 828 (10th Cir.2008).
Finally, one additional issue not presented in this case is whether a plan administrator can ever avoid plan rules regarding appeal time limits for good cause. Under the Plan, Majestic was required to respond to the claims appeal in this case within 60 days, and thus it had to respond to the appeal before the blood alcohol level tests were concluded. This limit thus could have placed Majestic in the predicament of either having to make a final benefits decision without full evidence or having to violate the Plan rule mandating a reply within 60 days. It may be that plan administrators deserve some deference when deciding how to proceed in the face of such a dilemma. Whatever the correct response is, however, it is certainly not proper to disclaim reliance on the plausibly appropriate ground for benefits denial while claiming reliance on the clearly inappropriate ground.
I thus concur with the conclusion that Majestic‘s denial of coverage in this case cannot withstand judicial scrutiny. I further concur with Parts III, IV, V, and VI of the majority opinion, and I thus concur in the result.
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which SILER, J., joined. GRIFFIN, J. (pp. 394-399), delivered a separate dissenting opinion.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Plaintiff-Appellant Karyn Risch (“Risch“) appeals the district court‘s grant of summary judgment in favor of Defendant-Appellee Royal Oak Police Department (“the Department“), on Risch‘s gender-discrimination claim brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII“),
I. BACKGROUND
Risch is a uniformed patrol officer who has been employed by the Department for seventeen years. On several occasions between 2001 and 2005, Risch applied for a promotion within the Department and was passed over by Police Chief Theodore Quisenberry (“Quisenberry“) in favor of male candidates who had received lower scores under the civil-service-promotion system used by the Department.1 Under that system, a candidate for promotion in the Department must first score 70% or higher on a written examination. Candidates who meet that minimum requirement are then given an overall numerical score based upon a weighted scale: 70% for written examinations, 20% for performance reviews conducted by the Department, and 10% for seniority. Once each candidate is given a numerical score, the City of Royal Oaks Civil Service Board creates a ranked list of candidates that is presented to the Police Chief. Pursuant to the city‘s civil-service ordinance, the Police Chief must fill each vacancy by choosing one of the top three scorers on the promotion list. When there is more than one vacancy, the number of eligible candidates who may be chosen by the Police Chief increases by one for each additional vacancy. Thus, when there are two vacancies, the Police Chief may choose from among the top four scorers on the promotion list to fill those vacancies. Promotion lists generally remain valid for one year but may be extended for an additional six months upon a request by the Police Chief.
In June 2002, Risch was ranked second on a promotion list for detective, but Quisenberry chose a male candidate who was ranked third, Donald Swiatkowski. In January 2003, Risch was again ranked second on a promotion list—this time for the position of sergeant. This list was effective from January 30, 2003, through January 30, 2004, and included four other candidates, all of whom were male. Quisenberry filled three vacancies during this period, again passing over Risch in favor of male candidates. In August 2003, Quisenberry promoted Gordon Young, the first-ranked candidate, and in January 2004, Quisenberry promoted Thomas Goad and David Clemens, the third-and fourth-ranked candidates respectively, whose lower test scores and fewer years of service resulted in lower total scores than Risch.
Finally, Risch was ranked third on a promotion list for the position of detective that was effective from March 4, 2004, through September 4, 2005.2 Quisenberry filled three vacancies during this period, but once again passed over Risch in favor of male candidates. In June 2005, Quisenberry promoted Perry Edgell and Michael Moore (“Moore“), the second- and fourth-ranked candidates respectively, and in Au
The 2004-2005 promotion list reflected that Risch had received slightly lower scores than Moore and Spencer in recent semi-annual performance evaluations. In her April 2003 review, for instance, Risch received a total performance rating of 79.5 and an unsatisfactory score for cooperation with associates. Risch‘s supervising officer commented that Risch was “not very motivated” and was “too vocal with her negative opinions of the department,” but added that Risch “kn[ew] her job” and had “improved her report writing efforts.” ROA at 66 (Risch Rating Form 4/24/03 at 1). Still, Risch‘s April 2003 performance rating of 79.5 was only slightly lower than Moore‘s April 2003 rating of 82.0, and Risch outscored Moore in several categories, including judgment, quality of work, and public contacts. Similarly, although Risch‘s April 2003 overall performance rating was somewhat lower than Spencer‘s April 2003 rating, Risch outperformed Spencer in quality of work, knowledge of work, and public contacts. Risch received similar ratings on subsequent performance reviews in October 20033 (total rating 80.7) and October 20044 (76.9) and received only one unsatisfactory score in each of these reviews.
Risch received significantly higher performance ratings between 1996 and 2000 than she did between 2001 and 2005 when she was attempting to gain a promotion. Between 1996 and 2000, Risch consistently scored in the high 80s and low 90s, with a low of 86.6 and a high of 91.9. By contrast, between 2001 and 2005, Risch generally scored in the low 80s, with a low of 76.9 and a high of 85.2.
The Department consists of a rank-and-file staff of around sixty officers, around thirteen or fourteen of whom are female, and a command staff of around fifteen or sixteen individuals with managerial roles,
Risch testified in her deposition that under Quisenberry‘s tenure the Department was permeated by an atmosphere of hostility toward female officers and that female officers seeking promotions were held to a higher standard than male officers. Risch recalled hearing numerous comments such as “the chief [will] never have a female in the command staff,” and “[n]one of you [female officers] will ever go anywhere.” ROA at 96 (Risch Dep. Tr. at 75). Risch also testified that she had heard a “majority” of male officers say that women do not belong in the police force. Id. Risch observed that negative comments about female officers were so common in the Department that “you just get used to it ... you don‘t think about jotting them down, it‘s just something that happens all the time.” Id. According to Risch, the Department was permeated by “an overall little boys club” in which female officers were “held higher to a different standard than ... male[s].” ROA at 99 (Risch Dep. Tr. at 175).
Risch also identified particular incidents in which command officers made degrading comments about women and gave preference to male officers when assigning work. Risch testified that a male sergeant named Clemens, who was later promoted to lieutenant, called it “bitching” when Risch raised a concern about “neatness and how things were filed” and suggested a possible improvement. ROA at 96 (Risch Dep. Tr. at 73-74). Risch also testified that Lieutenant Donald Foster (“Foster“) discriminated against female officers when he assigned work. According to Risch, when assigning extra duties, Foster “gave all the plum assignments to the males,” offering “males ... the opportunity to decide what kind of work they wanted to do that day” but denying that choice to female officers. ROA at 96 (Risch Dep. Tr. at 76). Risch further testified that Foster gave male officers preference over female officers in distributing shift assignments, giving males “any kind of detail that they wanted to do, and if the males didn‘t want to do it the females would get stuck doing it.” ROA at 97 (Risch Dep. Tr. at 157). According to Risch, whenever Foster dealt with female officers “he was very condescending towards them and treated them like they were ignorant.” ROA at 97 (Risch Dep. Tr. at 160).
Another female officer, nineteen-year-veteran Renee Levasseur (“Levasseur“), testified that she had been dissuaded from seeking a promotion by the experiences of Risch and Lynn Barron. Levasseur stated that she came to believe that Quisenberry would not have women in the command staff after seeing Barron, without explanation, retire early after just a short tenure as a lieutenant. Levasseur testified that she found it inexplicable “[w]hy somebody that was a great police officer and great investigator, a good supervisor[,] would want to leave.” ROA at 349 (Levasseur Dep. Tr. at 19). Levasseur testified that, “because of the way Lynn Barron left under those circumstances, and the way that Risch has been passed over,” she had been “dissuaded ... from ever trying” for a promotion. ROA at 360 (Levasseur Dep. Tr. at 63). Levasseur further testified that she believed female officers, including herself, were treated less favorably than
An eight-year-veteran patrol officer, Steven Teichow (“Teichow“), also testified that he had witnessed hostility toward the promotion of female officers among members of the command staff during Quisenberry‘s tenure. Teichow recalled attending a meeting to consider candidates for promotion to the position of Field Training Officer (“FTO“). Risch and another female officer, Kathy Szydlowski, were among the candidates for FTO positions. Although Teichow could not remember the exact words, he recalls that the sergeant in charge of the FTO program at the time, Sergeant Kowalski, made “a general statement ... something to do with the women in the Department” that “was clearly negative.” ROA at 383-84 (Teichow Dep. Tr. at 16-17). According to Teichow, there was “some friction” at the meeting because the FTOs at the meeting believed that Risch was qualified, but the command officers, who made the final decision, were “completely and totally against her being part of the program.” ROA at 384 (Teichow Dep. Tr. at 19-20). Both Risch and Szydlowski were evidently passed over for promotion to FTO positions. Teichow testified that Joyce Eagling, a female FTO who attended the meeting, “near[ly] came unglued because she believed it was based on [Risch and Szydlowski] being women.” ROA at 385 (Teichow Dep. Tr. at 22).
After being passed over for promotion to detective in June and August of 2005, Risch filed a complaint with the Equal Employment Opportunity Commission (“EEOC“) on October 20, 2005. The EEOC issued Risch a right-to-sue letter on February 15, 2006. Risch then filed the instant action against the Department in the United States District Court for the Eastern District of Michigan, asserting a claim of gender discrimination in violation of Title VII of the Civil Rights Act of 1964,
On October 9, 2006, the Department filed a motion to dismiss, arguing that (1) the Royal Oak Police Department was not a proper party because it lacked the capacity to be sued, (2) the district court lacked jurisdiction over Risch‘s religious-discrimination claim because it was not within the scope of her EEOC charge, and (3) Risch‘s allegations of gender discrimination in 2002, 2003, and 2004 were barred by Title VII‘s 300-day statute of limitations. On March 20, 2007, the district court granted in part and denied in part the Department‘s motion to dismiss. The district court dismissed Risch‘s religious-discrimination claim and dismissed Risch‘s gender-discrimination claim as to acts occurring in 2002, 2003, and 2004. The district court also granted Risch leave to amend her complaint by substituting the City of Royal Oak for the Royal Oak Police Department.
On September 21, 2007, the Department filed a motion for summary judgment on all of Risch‘s remaining claims. Risch filed an opposition on December 21, 2007, and the Department followed with a reply on January 31, 2008. On June 9, 2008, the district court granted the Department‘s motion for summary judgment and dismissed the case. See Risch v. Royal Oak Police Dep‘t, No. 06-12521, 2008 WL 2357705 (E.D.Mich. June 9, 2008). The district court found that Risch had estab
Risch filed a timely notice of appeal. On appeal, Risch does not raise any arguments as to her retaliation claim and has therefore forfeited this issue on appeal. See Golden v. Comm‘r, 548 F.3d 487, 493 (6th Cir.2008) (holding that argument not raised in opening brief was forfeited on appeal), cert. denied, U.S., 129 S.Ct. 1647, 173 L.Ed.2d 999 (2009). Accordingly, Risch‘s appeal is limited to her gender-discrimination claim challenging the Department‘s failure to promote her to the position of detective in 2005.
II. ANALYSIS
“We review a district court‘s grant of summary judgment de novo.” CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
At the summary judgment stage, the moving party bears the initial burden of identifying those parts of the record which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, if the moving party seeks summary judgment on an issue for which it does not bear the burden of proof at trial, the moving party may meet its initial burden by showing “that there is an absence of evidence to support the nonmoving party‘s case.” Id. at 325. When the moving party has carried forward this burden, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. The nonmoving party may not rest upon its mere allegations or denials of the adverse party‘s pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial. Id.; accord
Fed.R.Civ.P. 56(e)(2) .
White v. Baxter Healthcare Corp., 533 F.3d 381, 389-90 (6th Cir.2008), cert. denied, U.S., 129 S.Ct. 2380, 173 L.Ed.2d 1293 (2009).
Risch alleges that the Department violated Title VII by failing to promote her on account of her gender. Title VII makes it “an unlawful employment practice for an employer ... 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.”
Here, the Department does not challenge the district court‘s ruling that Risch has established a prima facie case of gender discrimination. See Department Br. at 19-30 (failing to argue that Risch did not establish prima facie case and instead arguing that Risch cannot show pretext). Risch, in turn, concedes that the Department has articulated a facially legitimate, nondiscriminatory reason for failing to promote Risch—the Department asserts that it promoted better qualified applicants who outscored Risch on performance reviews and the examination. Thus, we turn to the question of whether Risch has presented evidence raising a genuine issue of material fact whether the Department‘s proffered explanation for not promoting her was merely pretextual. The Department argues—and the district court found—that Risch failed to present sufficient evidence of pretext to survive summary judgment.
We have explained that “[a] plaintiff will usually demonstrate pretext by showing that the employer‘s stated reason for the adverse employment action either (1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer‘s action.” White, 533 F.3d at 393. “However, the plaintiff may also demonstrate pretext by offering evidence which challenges the reasonableness of the employer‘s decision ‘to the extent that such an inquiry sheds light on whether the employer‘s proffered reason for the employment action was its actual motivation.‘” Id. (quoting Wexler v. White‘s Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir.2003) (en banc)); see also Burdine, 450 U.S. at 259 (“The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer‘s reasons are pretexts for discrimination.“).
Evidence that the plaintiff was more qualified than the successful applicant can in some circumstances be sufficient to raise a genuine issue of material fact that the employer‘s proffered explanation is pretextual. See White, 533 F.3d at 394; Bender v. Hecht‘s Dep‘t Stores, 455 F.3d 612, 626-27 (6th Cir.2006), cert. denied, 550 U.S. 904 (2007); see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (“Under this Court‘s decisions, qualifications evidence may suffice, at least in some circumstances, to show pretext.“); Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989) (observing that a plaintiff “might seek to demonstrate that [the employer‘s] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person cho
The record in this case demonstrates that Risch had arguably superior qualifications for the position of detective than two of the male candidates promoted to that position in 2005—Moore and Spencer. Although Risch‘s exam and performance-review scores were slightly lower than those of Moore and Spencer, Risch‘s total composite score of 81.72—based 70% on the exam, 20% on performance scores, and 10% on experience—was higher than both Moore‘s (81.47) and Spencer‘s (81.24). Moreover, although Risch‘s overall performance scores were slightly lower than those of Moore and Spencer, Risch outscored the two male candidates in several performance categories. In the April 2003 reviews, Risch outperformed Moore in judgment, quality of work, and public contacts, and she outperformed Spencer in quality of work, knowledge of work, and public contacts. Furthermore, it is undisputed that Risch had far greater experience in the Department than the two male officers, resulting in a significantly higher experience score (97.03) than Moore (73.70) or Spencer (73.47). Taking the facts in the light most favorable to Risch, as we must in evaluating a motion for summary judgment, it is clear that Risch was as qualified as or better qualified than either Moore or Spencer.
The record also contains other evidence probative of pretext. The record indicates that male officers frequently made degrading comments regarding the capabilities of female officers, expressed the view that female officers would never be promoted to command positions, and made generally degrading remarks about women. Among the remarks alleged to have been made by male officers are the following:
- “[T]he chief [will] never have a female on the command staff.” ROA at 96 (Risch Dep. Tr. at 75).
- “None of you [female officers] will ever go anywhere....” Id.
- A “majority” of male officers told Risch that women do not belong in the police force. Id.
- Sergeant Clemens said that Risch was “bitching” when she raised a concern about “neatness and how things were filed” and suggested a possible improvement. ROA at 96 (Risch Dep. Tr. at 73-74).
- During a meeting to consider promoting officers to the position of FTO attended by members of the command staff, Sergeant Kowalski made “a general statement ... something to do with the women in the Department” that “was clearly negative.” ROA at 383-84 (Teichow
Dep. Tr. at 16-17). Risch and another female officer were denied promotions at that meeting.
We have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356-57 (6th Cir.1998). We have explained the relevance of such discriminatory remarks as follows:
Although discriminatory statements by a nondecisionmaker, standing alone, generally do not support an inference of discrimination, the comments of a nondecisionmaker are not categorically excludable. Circumstantial evidence establishing the existence of a discriminatory atmosphere at the defendant‘s workplace in turn may serve as circumstantial evidence of individualized discrimination directed at the plaintiff. While evidence of a discriminatory atmosphere may not be conclusive proof of discrimination against an individual plaintiff, such evidence does tend to add “color” to the employer‘s decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff.
Ercegovich, 154 F.3d at 356 (internal quotation marks and citations omitted). Furthermore, “evidence of a ... discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific events that generated a claim of discriminatory treatment.” Id. (internal quotation marks omitted). In evaluating such statements, “courts must carefully evaluate factors affecting the statement‘s probative value, such as the declarant‘s position in the [employer‘s] hierarchy, the purpose and content of the statement, and the temporal connection between the statement and the challenged employment action, as well as whether the statement buttresses other evidence of pretext.” Id. at 357 (internal quotation marks and citation omitted).
The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. Two of the comments were made by sergeants who were members of the sixteen-person command staff, which serves as the managerial arm of the Department. Discriminatory statements made by individuals occupying managerial positions can be particularly probative of a discriminatory workplace culture. See Vincent v. Brewer Co., 514 F.3d 489, 498 (6th Cir.2007); Ercegovich, 154 F.3d at 357. Moreover, Sergeant Kowalski‘s alleged discriminatory remark about female officers was made in the context of a meeting attended by at least one other member of the command staff in which two female officers were denied promotions. Risch does not specify the officers who made the other discriminatory comments. However, Risch‘s testimony indicates that comments such as women did not belong on the police force, and that Chief Quisenberry will “never have a female on the command staff,” were commonplace in the department, suggesting an atmosphere hostile to the promotion of female officers. See Ercegovich, 154 F.3d at 356 (“[W]e do not view each discriminatory remark in isolation, but are mindful that the remarks buttress one another as well as any other pretextual evidence supporting an inference of discriminatory animus.“).
In addition to these discriminatory remarks, the record contains other evidence of a general atmosphere of discrimination in the Department. Risch testified that Lieutenant Foster, who occupied a senior
In light of the above evidence of a discriminatory atmosphere in the Department, the lack of women in command positions at the Department, and the evidence that Risch was arguably better qualified than the two male candidates promoted in 2005, we conclude that Risch has produced sufficient evidence to establish a genuine issue of material fact concerning whether the Department‘s proffered legitimate, nondiscriminatory reason was pretextual. See Bender, 455 F.3d at 626-27. Because a genuine issue of material fact exists as to whether Risch was denied a promotion because of her gender, summary judgment should not have been granted on Risch‘s gender-discrimination claim.
III. CONCLUSION
For these reasons, we REVERSE the district court‘s grant of summary judgment to the Department on Risch‘s gender-discrimination claim and REMAND for further proceedings consistent with this opinion.
GRIFFIN, Circuit Judge, dissenting.
I respectfully dissent. I would affirm the judgment of the district court.
Plaintiff Karyn Risch complains that the Royal Oak Police Department‘s denial of her promotion to detective in 2005 was based upon an unlawful reason—sex discrimination. However, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In opposing a defendant‘s motion for summary judgment, the plaintiff must submit admissible evidence from which a reasonable juror could find that she has met her burden. Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir.2001); see also Chen v. Dow Chemical Co., 580 F.3d 394, 2009 WL 2851351, 2009 U.S.App. LEXIS 20058, at *8 (6th Cir.2009); Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 371 (6th Cir.2007). Because Risch has not done so, the district court properly granted defendant‘s motion for summary judgment.
I.
The majority concludes correctly that the Department articulated a legitimate, non-sex-based reason for denying her the promotion. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).1 Police Chief Theodore Quisenberry swore in his affida
My colleagues also acknowledge that Chief Quisenberry‘s explanation rebuts the presumption of discrimination raised by the prima facie case of discrimination so that it “‘drops from the case.‘” St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 255 & n. 10). In other words, the burden falls upon Risch, not upon the Department, to identify evidence from which a reasonable jury could find that Chief Quisenberry‘s reason was a lie contrived to conceal his true reason for denying her the promotion—that she is a woman. See Burdine, 450 U.S. at 253 (“[T]he plaintiff must then ... prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.“). Because Risch cannot do so, her case requires dismissal. See Chen, 580 F.3d at 2009 WL 2851351, 2009 U.S.App. LEXIS 20058, at *10; Braithwaite, 258 F.3d at 494-97; and Macy, 484 F.3d at 366-71.
Although the district court ruled that Risch failed to show that the Chief‘s explanation was a pretext for discrimination, the majority reverses the district court‘s judgment. In support of its decision, the majority: (1) characterizes Risch‘s qualifications as equal or “arguably superior” to two of the male candidates (Moore and Spencer) who were promoted to the detective position in 2005; (2) highlights the lack of women in command positions; and (3) finds persuasive the allegedly “discriminatory atmosphere” at the Department, specifically, sexist remarks purportedly made by nondecisionmaking male officers.
II.
None of the grounds cited by the majority creates a triable question of fact on the issue of pretext.
In this regard, “[t]he jury may not reject an employer‘s [nondiscriminatory] explanation ... unless there is a sufficient basis in the evidence for doing so.” Upshaw v. Ford Motor Co., 576 F.3d 576, 586 (6th Cir.2009) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.1994), abrogated in part on other grounds, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351-52 (2009)). “To allow the jury simply to refuse to believe the employer‘s explanation would subtly, but inarguably, shift the burden of persuasion from the plaintiff to the defendant, which we must not permit.” Manzer, 29 F.3d at 1083 (citing Burdine, 450 U.S. at 254).
In opposing a properly supported motion for summary judgment, the plaintiff bears the burden of demonstrating pretext by submitting admissible evidence showing that the proffered reason: (1) had no basis in fact, (2) did not actually motivate the defendant‘s action, or (3) was insufficient to motivate the defendant‘s action. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 460 (6th Cir.2004).
A.
It is undisputed that the ultimate decision to promote officers was a discretionary one that rested exclusively with Chief Quisenberry. Based upon the evidence before Chief Quisenberry, Risch‘s qualifi
Obviously, an employee‘s experience alone does not justify a promotion. In fact, we recently held that a complaining employee‘s seniority, coupled with less favorable performance evaluations than newer employees, justified the employer‘s negative treatment of him. See Cameron v. State of Ohio (Dep‘t of Youth Servs.), 344 Fed.Appx. 115, 2009 WL 2610986, at *4, 2009 U.S.App. LEXIS 19100, at *11 (6th Cir. Aug. 25, 2009) (unpublished) (stating that the employer “could have been less willing to forgive an employee‘s inability to complete reports in a timely fashion given extensive experience, than to forgive a similar deficiency in an employee just learning the ropes.“). Contrary to Risch‘s assertion at oral argument, no employee should have a “legitimate expectation” of receiving a promotion merely because that employee‘s name appears on an eligibility list. Promotions are earned, not given. Title VII prevents unlawful discrimination; it does not mandate entitlement. Cf. Meyer v. City of Joplin, 281 F.3d 759, 760-62 (8th Cir.2002) (affirming the district court‘s dismissal of a
B.
The lack of evidence demonstrating a history or a pattern of unlawful discrimination also undermines Risch‘s claim of pretext. The undisputed evidence shows that Chief Quisenberry promoted women officers during his tenure. In 2002, a year after he was hired and before this conflict arose, Chief Quisenberry promoted female Officer Lynne Barron to the rank of sergeant. Although Risch argues that Barron retired after serving one year in her elevated position and speculates that sexism was the reason for her departure, Risch revealingly did not depose Barron, and the evidence shows that Barron served as a sergeant for three years, not one year, before retiring. Moreover, Barron left because she received an early retirement buyout (a legitimate, non-sex-based economic incentive offered by many employ
C.
Nor does the evidence support Risch‘s contention that her performance scores “began to plummet” with Chief Quisenberry‘s appointment. In fact, her scores started declining in 1998, three years before Chief Quisenberry was hired. Risch‘s scores fell from 91 in 1997 to 86 in 2000. When the Chief commenced his employment in 2001, the downward trend merely continued, with Risch‘s scores descending from 85 in 2001 to 81 in 2005. The four-point drop in Risch‘s score during the four-year period of 2001 to 2005 (coinciding with Chief Quisenberry‘s tenure) was less than the five-point decrease in the three years (1997 to 2000) preceding Chief Quisenberry‘s appointment. Far from permitting an inference of discrimination, this data demonstrates a consistent decline in Risch‘s performance ratings over a lengthy nine-year period, lending further support to the Department‘s performance-based reasons for denying her the promotion.
Notwithstanding the numbers themselves, mere variations in Risch‘s evaluations before and during Chief Quisenberry‘s employment are not evidence of unlawful discrimination. Police chiefs, like all upper management personnel, have vastly distinct management styles. For this reason, in the analogous context of determining whether the complaining employee is “similarly situated” to an employee outside the protected class such that an inference of discrimination may arise when both employees are treated differently, we have required that those employees “have dealt with the same supervisor” and “have been subject to the same standards[.]” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992). Risch‘s complaints about her negative evaluations are better explained by a combination of her own performance deficits and a possible change in management style than by a nebulous, allegedly invidious Department-wide plot to discriminate against her.3
In reversing the district court‘s grant of summary judgment to the Department, the majority relies upon inadmissible, nonprobative evidence. See Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.2009) (stating that
Numerous supervisors—ten in all—rotated every six months to review Risch‘s performance. Revealingly, Risch makes no attempt to dispute the particular facts underlying their negative appraisals of her and the counseling she received. These facts alone vitiate her claim of a Department-wide conspiracy to discriminate against her. See, e.g., Spearmon v. Southwestern Bell Tel. Co., 662 F.2d 509, 512 (8th Cir.1981) (no discrimination where “several supervisors” evaluated the plaintiff unfavorably); Hairston v. AK Steel Corp., 162 Fed.Appx. 505, 510 (6th Cir.2006) (unpublished) (no cognizable claim of pretext where the plaintiff was repeatedly cited for performance failures and required numerous counseling sessions by several supervisors); Evans v. Toys R Us Ohio, Inc., No. 99-3233, 2000 WL 761803, at *9, 2000 U.S.App. LEXIS 14076, at *27-28 (6th Cir. June 2, 2000) (unpublished) (rejecting plaintiff‘s argument that his poor performance reviews were motivated by his employer‘s “disdain for minorities and men” because “he was evaluated by several supervisors“). In fact, the evaluations, which comprised twenty percent of Risch‘s score for the short-list of candidates eligible for the promotion, were somehow good enough to place Risch on that list. Had Risch‘s supervisors harbored sex-based animus against her, they could have “fixed” her performance scores so as to render her ineligible for the promotions.
Further, simply because some employees within the Department may have made sexist comments does not permit a reasonable inference that Chief Quisenberry‘s decision to deny Risch a promotion was sex-based. See Noble v. Brinker Int‘l, Inc., 391 F.3d 715, 724 (6th Cir.2004) (“Unless the statements or conduct of nondecisionmakers can be imputed to the ultimate decisionmaker, such statements or conduct can not suffice to satisfy the plaintiff‘s burden of demonstrating animus.“) (internal quotation marks, citation, and alterations omitted); McDonald v. Union Camp Corp., 898 F.2d 1155, 1161 (6th Cir.1990) (“[A] statement by an intermediate level management official is not indicative of discrimination when the ultimate decision is made by an upper level official.“). To be sure, sexist comments by other officers may have greater relevance if Risch were alleging sexual harassment, but she is not; rather, she alleges an unlawful discrete act—denial of a promotion based upon sex. To impute allegedly discriminatory comments and conduct by non-decision making employees within the Department to Chief Quisenberry and conclude
Finally, the inadmissible gossip upon which the majority improperly relies is non-specific. For example, while characterizing the “general tenure [sic]” and “a majority of the men” in the Department as sexist, Risch revealingly was unable to remember the names of the officers whom she claims said: “women don‘t belong in law enforcement“; “the chief [will] never have a female in the command staff“; and “[n]one of you [female officers] will ever go anywhere[.]” Moreover, Officer Teichow, who allegedly heard male Sergeant Kowalski make a “general statement” that was negative about women during a meeting to consider whether Risch and female Officer Kathy Szydlowski would be promoted to the Field Training Officer (“FTO“) position, admitted during his deposition that “[y]ou know what? I honestly cannot recall 100 percent [Sergeant Kowalski] saying that the women are not going to be a part of this. It was more inferring to those two [Risch and Szydlowski] are not going to be—those women, being the two of them, are not going to be part of the FTO program.” Significantly, that meeting followed Risch‘s removal from another program because of her “unwillingness to work as a team player[,]” and Officer Teichow was “certain that was brought up” at the meeting. Further, Officer Teichow testified in his deposition that he neither heard Chief Quisenberry say he would never promote a woman to his command staff or anything similar nor did Officer Teichow himself believe that the Chief would exclude women from such a position. In fact, Officer Teichow testified that “you know what? I don‘t know that I would say the Chief will never have a woman in the command. Sergeant Lynn Barron was a female and was promoted. So to say that I believe that the Chief never would have one, it‘s not true.”
III.
Time and again we have emphasized that “[o]ur role is to prevent unlawful hiring practices, not to act as a ‘super personnel department’ that second guesses employers’ business judgments.” Hedrick, 355 F.3d at 462 (quoting Simms v. Oklahoma ex rel. Dep‘t of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.1999)). The majority‘s decision, based upon inadmissible opinion, speculation, and conjecture, contravenes that principle. The district court correctly granted summary judgment in favor of the Department because no reasonable juror could find, based upon admissible evidence, that the Department‘s lawful reason for denying Risch a promotion in 2005 was a pretext for sex discrimination. For this reason, I would affirm and therefore respectfully dissent.
Thomas H. BLAKLEY, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 08-6270
United States Court of Appeals, Sixth Circuit
Submitted: April 23, 2009. Decided and Filed: Sept. 24, 2009.