Pamela Harris v. City of Akron, Ohio

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 15, 2020
• Docket: 19-4101
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0694n.06

Case No. 19-4101

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 15, 2020 PAMELA HARRIS, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE CITY OF AKRON, OHIO, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellee. )

BEFORE: COOK, BUSH, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. Pamela Harris, an African American female,

was a seasonal employee for the City of Akron, for which she had worked since 1994.

Harris filed several complaints against the City with the Equal Employment

Opportunity Commission and Ohio Civil Rights Commission, alleging various

instances of discrimination and retaliation. The only claim here pertains to her 2014

application for a permanent position as a landscaper. Harris claims that the City

discriminated against her when it hired Mark Hodas, a Caucasian male, instead of

her. But she cannot show an issue of material fact that would allow a reasonable jury

to decide the case in her favor. Thus, we AFFIRM the district court’s grant of

summary judgment. Case No. 19-4101, Harris v. City of Akron

I. Background

Pamela Harris, an African American female, was a temporary laborer for the

City of Akron from 1994 until 2017. Her performance evaluations reflected a mixture

of negative, neutral, and positive reviews throughout her time there. In 2013, Harris

applied for a permanent position as a landscaper in response to the City’s hiring

notice. The City gave an examination to the applicants, and Harris placed seventh

out of twelve. After three rounds of interviews, the City hired those who had scored

first, third, and fourth on the exam.

For a fourth round of interviews, the City invited Harris, Mark Hodas, and

Troy Cross. After Cross withdrew, the City added Patrick Goodhart to the list of

interviewees. Kevin Miller and Paul Burnett interviewed Harris. She alleges that the

interview lasted for less than fifteen minutes and that Miller commented that “he

[already] had someone he wanted to hire for the job, but that person did not work

overtime.” (R. 32-13, PageID 369.) The City ultimately hired Mark Hodas, who had

scored second on the exam. The City stated that it hired Hodas, in part, because of

his previous work at a landscaping company and his experience with spraying

herbicide.1

1 Harris argues that Hodas’ experience in herbicide spraying cannot provide the basis for summary judgment because it is hearsay, since Kevin Miller learned about the experience from Hodas in the interview. But the only use for this information is to show the hiring motive, which makes this evidence solely about the effect it had on the City officials. This means that it is not hearsay in this context. See Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009). 2 Case No. 19-4101, Harris v. City of Akron

In May 2018, Harris filed an amended complaint alleging age, race, and gender

discrimination under Title VII, the Age Discrimination in Employment Act of 1967

(ADEA), and Ohio Revised Code § 4112.02(A). She alleged multiple instances of hiring

and employment discrimination, and she also alleged retaliation in violation of Title

VII based on an unrelated incident. After discovery, the City moved for summary

judgment, which the District Court granted. On appeal, Harris raises only the race

and gender discrimination claims arising from the 2013–2014 permanent landscaper

selection.

Harris argues that the City discriminated against her when it gave a

permanent landscaper position to a Caucasian male applicant instead of her. She

points specifically to the fact that the City rejected Hodas three times before hiring

him for the position, meaning that the City did not invoke its discretion to remove

him from the eligibility list after three failed applications.2 She also suggests that the

City’s previous rejection of Hodas even when he scored well means that the scores on

the exams were not really the main motivating factor for hiring. She also notes that

her interview was with two Caucasian males, that it was subjective and perfunctory,

and that the City offered no records of the internal decision-making process. Finally,

she argues that the City’s decision to add a fourth applicant into the interview round

deviated from normal City policy and further undermines the City’s claim of

neutrality.

She did not allege how often the City exercised this discretion or that they 2

had previously used this discretion in a discriminatory way. 3 Case No. 19-4101, Harris v. City of Akron

The City responds by noting that, not only is the decision to exclude an

applicant after three rejections a discretionary call, but that it was three distinct

divisions that rejected Hodas before—specifically, the Parks Maintenance Division,

the Highway Maintenance Division, and the Street Cleaning Division. They also state

that adding the fourth candidate was in keeping with the “Rule of Three,” which

required them to certify a pool of three applicants.

II. Standard of Review

We review de novo a district court’s order granting summary judgment,

affirming if the “depositions, answers to interrogatories, and admissions on file,

together with the affidavits” show that no genuine issue of material fact exists and

that “the movant is entitled to judgment as a matter of law.” Upshaw v. Ford Motor

Co., 576 F.3d 576, 584 (6th Cir. 2009) (quoting Moses v. Providence Hosp. & Med.

Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009)). We view the evidence in the light most

favorable to the nonmoving party. Id. But the nonmoving party must provide evidence

from which a rational trier of fact could find in its favor. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).

When a party moving for summary judgment does not have the ultimate

burden of proof, it must show a lack of evidence supporting the other party’s case. See

White v. Baxter Healthcare Corp., 533 F.3d 381, 389–90 (6th Cir. 2008) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To survive summary judgment, the party

with the ultimate burden must show more than “some metaphysical doubt as to the

material facts.” Id. at 390 (quotation marks and citation removed). This does not

4 Case No. 19-4101, Harris v. City of Akron

allow the party to “rest upon its mere allegations or denials of the adverse party’s

pleadings,” but requires it to “set forth specific facts showing that there is a genuine

issue for trial.” Id.

III. Analysis

When a plaintiff uses circumstantial evidence to show discrimination, courts

apply the McDonnell Douglas / Burdine framework. See id. at 391. That analysis

starts with requiring the plaintiff to establish a prima facie case of discrimination.

Id. If she does, then the employer must come forward with evidence of a legitimate,

nondiscriminatory reason for the employment action it took. Id. Finally, if the

employer does so, the plaintiff must show that the employer’s proffered reason is

merely a pretext for discrimination. Id. at 391–92. “Although the burdens of

production shift, the ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all times with

the plaintiff.” Id. at 392.

A. Prima Facie Case

A prima facie case requires four components: that the employee: 1) “is a

member of a protected class”; 2) “was qualified for the job”; 3) “suffered an adverse

employment decision”; and 4) “was replaced by a person outside the protected class

or treated differently than similarly situated non-protected employees.” Arendale v.

City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008).

The parties have agreed that Harris showed a prima facie case of

discrimination because 1) she is an African American female, 2) she applied for and

5 Case No. 19-4101, Harris v. City of Akron

did not receive the permanent landscaper position, 3) she earned a spot on the list of

eligible candidates, and 4) a Caucasian male received the job. Establishing a prima

facie case is not difficult, and it creates a “presumption that the employer unlawfully

discriminated against the employee.” Wixson v. Dowagiac Nursing Home, 87 F.3d

164, 169 (6th Cir. 1996) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 254 (1981)). This presumption does not shift the burden of proof, but only the

burden of producing some evidence of permissible motive. See Burdine, 450 U.S. at

256 n.8.

B. Legitimate, Nondiscriminatory Reason

Once the plaintiff presents a prima facie case of discrimination, the burden of

production falls on the defendant to articulate a “legitimate, non-discriminatory

reason for the adverse employment action.” White, 533 F.3d at 391. This is not a

burden to “persuade the court that it was actually motivated by the proffered

reasons.” Burdine, 450 U.S. at 254. The defendant only has to present “clear and

reasonably specific” reasons that will “frame the factual issue with sufficient clarity

so that the plaintiff will have a full and fair opportunity to demonstrate pretext.” Id.

at 258, 255–56.

The City explains that it hired Hodas because he had scored higher than Harris

on the exam and ranked higher than she did on the eligibility list. And it specified

Hodas’ previous employment experience in landscaping companies as a reason to

choose Hodas for the permanent landscaper position. These reasons meet the burden

6 Case No. 19-4101, Harris v. City of Akron

to provide a legitimate, nondiscriminatory reason for its hiring decision under

Burdine.

At this point, the presumption of discrimination “drops out” of this case. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). That is, the employer has met

the burden of production, and the trial court focuses on whether the plaintiff can meet

the burden of persuasion. To survive summary judgment, the plaintiff must produce

enough evidence to “support a prima facie case and to rebut, but not to disprove, the

defendant’s proffered rationale.” Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir.

2012) (citation removed).

C. Pretext

We next turn to whether Harris has shown that the City’s justifications are

pretextual. Summary judgment may be inappropriate if the plaintiff rebuts the

employer’s proffered reasons. The prima facie case and showing of pretext alone could

present a genuine issue of material fact for the jury because “[p]roof that the

defendant’s explanation is unworthy of credence is simply one form of circumstantial

evidence that is probative of intentional discrimination, and it may be quite

persuasive.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).

But this is not always the case. If the plaintiff “created only a weak issue of

fact as to whether the employer’s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination had occurred,” then

summary judgment is appropriate. Griffin, 689 F.3d at 594 (quoting Reeves, 530 U.S.

at 148). And even if the plaintiff shows pretext, summary judgment is warranted if

7 Case No. 19-4101, Harris v. City of Akron

“the record conclusively revealed some other, nondiscriminatory reason for the

employer’s decision.” Reeves, 530 U.S. at 148. This is because finding “pretext for

discrimination” requires not only that the reasons are pretextual, but also that actual

discrimination was the true motive. See Hicks, 509 U.S. at 516–19. In either case,

“the moving party has the right to judgment without the expense of a trial when there

are no issues of fact left for the trier of fact to determine.” Ackerman v. Diamond

Shamrock Corp., 670 F.2d 66, 69 (6th Cir. 1982) (citing First Nat’l Bank of Ariz. v.

Cities Serv. Co., 391 U.S. 253, 284–88 (1968).

A plaintiff can expose an employer’s proffered motives as pretext in three ways.

The first is that the reasons “had no basis in fact,” such as reasons that are purely

concocted and conflict with the facts in the record. Ondricko v. MGM Grand Detroit,

LLC, 689 F.3d 642, 654 (6th Cir. 2012) (quoting Dubey v. Stroh Brewery Co., 185 Mich.

App. 561, 565 (1990)). The second is when the reasons were “not the actual factors

motivating the decision,” as when an employer cites a facially valid reason as a mere

coverup for its true discriminatory motives. Id. Finally, the reasons may be pretextual

if they are “jointly insufficient to justify the decision.” Id. We do not apply this test so

rigidly as to obscure the ultimate question of pretext. See Davis v. Cintas Corp.,

717 F.3d 476, 492 (6th Cir. 2013). And to make the showing of pretext, the plaintiff

must produce “sufficient evidence from which the jury could reasonably reject the

defendants’ explanation and infer that the defendants intentionally discriminated

against him.” Upshaw, 576 F.3d at 586 (alterations omitted) (quoting Johnson v.

Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003)).

8 Case No. 19-4101, Harris v. City of Akron

Harris’ first claim—that Hodas was not really more qualified than she was and

that the City chose him only because the alternative was a black woman—challenges

the factual basis of the City’s decision. Because this challenge pertains to the

candidates’ relative qualifications, Harris presents a factual dispute worthy of trial

only if the evidence shows that “either (1) the plaintiff was a plainly superior

candidate, such that no reasonable employer would have chosen the latter applicant

over the former, or (2) plaintiff was as qualified as if not better qualified than the

successful applicant, and the record contains other probative evidence of

discrimination.” Rachells v. Cingular Wireless Emp. Servs., LLC, 732 F.3d 652, 668

(6th Cir. 2013) (internal quotation marks removed) (quoting Bartlett v. Gates, 421 F.

App’x 485, 490 (6th Cir. 2010)).

Nothing in the record suggests that Harris is a more qualified candidate. She

does not dispute that her score on the exam was lower than Hodas’ score and that he

had relevant experience for the position that the City sought to fill. And some of

Harris’ performance reviews from her temporary position with the City were

mediocre or negative, not unfailingly positive. Even if Harris were as qualified as

Hodas, she would need “probative evidence of discrimination.” Rachells, 732 F.3d at

668. This element is missing. The fact that the City had rejected Hodas in the past

for other positions does not suffice. His prior rejections by separate divisions despite

his high scores do not make those scores irrelevant to the decision of the City, through

a different division, to eventually hire him.

9 Case No. 19-4101, Harris v. City of Akron

Harris’ second argument—that the interview was subjective and perfunctory,

and that the City officials had already chosen another candidate—does not survive

summary judgment either. In some cases, preselection of a candidate can support a

finding of pretext. Stokes v. Detroit Pub. Schs., 807 F. App’x 493, 503 (6th Cir. 2020)

(citing Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986)). But preselection

based on qualifications creates no Title VII problem. See Goostree, 796 F.2d at 861.

Even if the City’s interviewer said that he already had someone he wanted to hire,

Harris has offered no evidence that the preselection predated the interviewer’s

knowledge of Hodas’ qualifications, which would be permissible grounds for

preselection. In fact, she submitted no evidence that the allegedly preselected

candidate even was Hodas, rather than someone else who was ultimately not hired

because he “did not work overtime.”

Harris correctly notes that “subjective evaluation processes” can be a cover for

discrimination and call for “close scrutiny” at times. Grano v. Dep’t of Dev. of City of

Columbus, 699 F.2d 836, 837 (6th Cir. 1983). But the process here was not all

subjective. The City used the test scores to determine who to interview, and it would

be reasonable to also use them for the ultimate hiring decision. What’s more, using

subjective criteria is “not illegal per se.” Id. (affirming judgment for the defendant

employer). Without more evidence than the subjectivity of the evaluation, a plaintiff

does not raise a genuine issue of fact over pretext.

Finally, Harris’ argument that adding the fourth applicant was wrongful also

does not tend to show any of the three pretext indicators. She introduced no evidence

10 Case No. 19-4101, Harris v. City of Akron

that the City had deviated from its policy. The City explained, in the record, that it

added the “fourth” candidate to replace the dropped candidate and abide by the Rule

of Three.

Only Harris’ subjective belief that the interviewers acted for discriminatory

reasons could turn the alleged actions here into a violation of Title VII. “Mere

conjecture that the employer’s explanation is a pretext for intentional discrimination

is an insufficient basis for denial of summary judgment. A court may not reject an

employer’s explanation of its action unless there is sufficient basis in the evidence for

doing so.” Upshaw, 576 F.3d at 587 (quoting Brennan v. Tractor Supply Co., 237 F.

App’x 9, 19–20 (6th Cir. 2007) (cleaned up)). Because Harris fails to show pretext, we

affirm the summary judgment.

Conclusion

Harris cannot show an issue of material fact that merits a jury trial. The City

chose the second-place applicant over the seventh-place applicant. Harris gives no

evidence that the choice was racially motivated. She is not so plainly superior to

Hodas as to rebut the factual basis behind the City’s reasons. She has presented no

supporting evidence that tends to show that the facts the City asserts were not its

true motivation. And all the facts taken in a light most favorable to her do not carry

an inference of discrimination. Thus, we AFFIRM.