NOT RECOMMENDED FOR PUBLICATION File Name: 05a0028n.06 Filed: January 12, 2005
No. 03-1916
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
HELEN KAY SMITH, CYNTHIA BROOKS,
Plaintiffs-Appellants,
v. On Appeal from the United States District Court for the SERVICE EMPLOYEES INTERNATIONAL Eastern District of Michigan UNION, LOCAL 79, AFL-CIO; TOM WOODRUFF; DAVID MOTT; DEBBIE SCHNEIDER, Individually and in Their Official Capacities, Jointly and Severally,
Defendants-Appellees.
/
Before: GUY and ROGERS, Circuit Judges; DOWD, District Judge.*
RALPH B. GUY, JR., Circuit Judge. Plaintiffs, Helen Kay Smith and Cynthia
Brooks, appeal from the grant of summary judgment in favor of defendant, Service
Employees International Union, Local 79, AFL-CIO (SEIU), in this employment race
discrimination case brought under Title VII of the federal Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-1, and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws
* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. No. 03-1916 2
Ann. § 37.2101 (2004). After review of the record, the arguments, and the applicable law,
we affirm.
I.
Smith and Brooks, African American women, were both employed at SEIU. On
appeal, Smith pursues her race discrimination claims relating to (1) SEIU’s decision to hire
Smith in 2000 as a senior organizer in training rather than as a senior organizer, (2) SEIU’s
decision not to promote her in 2001 to organizing coordinator, and (3) SEIU’s termination
of her employment in 2001. Brooks pursues only her claim that SEIU unlawfully
discriminated against her by terminating her employment in 2002.
SEIU is a labor organization that serves as the umbrella organization for separate,
autonomous local union affiliates. SEIU employs approximately 200 field organizers and
support staff throughout North America. The SEIU organizers work with the separate
organizing staffs of the local union affiliates. Smith and Brooks were employed in SEIU’s
central region that is composed of 12 Midwestern states, including Michigan and Illinois.
There are four nonsupervisory organizer positions at SEIU: (1) organizer in training,
an entry-level position; (2) organizer, the basic, line-level organizing position; (3) senior
organizer in training, a position typically one year in length designed to train organizers how
to, among other things, manage larger and more complex organizing campaigns; and (4)
senior organizer, a position for those expected to play a leadership role in managing larger
and more complex campaigns in coordination with the staff and elected officers of the local
union affiliates. All of these positions are considered nonmanagerial, and they are covered No. 03-1916 3
by a collective bargaining agreement between SEIU and the Union of Union Representatives,
an independent union representing SEIU’s employees.
The next two positions in the organization chart are the organizing coordinator and
then the regional director of organizing, both of which are supervisory, nonbargaining unit
positions.
At the times relevant to this case, Tom Woodruff was the executive vice president of
SEIU and was responsible for overseeing all activities of the central region. Debbie
Schneider was the assistant to the executive vice president and functioned as staff director or
chief of staff of the central region. Tony Condra was the regional director of organizing for
the central region.
A. Factual History Relating to Smith
Prior to working at SEIU, Smith worked as the assistant business agent, an intern
organizer, assistant director of organizing, and then organizing director for one of SEIU’s
local union affiliates. In May 2000, Condra recommended Smith be hired by SEIU as a
senior organizer. Smith, however, was hired as a senior organizer in training. SEIU provided
evidence that Smith was brought in at this lower position because (1) she had only three years
and four months of professional organizing experience,1 (2) her experience was at a local
affiliate with an uneven record of training and developing organizers, and (3) her experience
was limited to nursing homes. SEIU felt that Smith’s experience best qualified her for the
1 Smith claims she had five years of experience, but over a year and a half was in an unpaid capacity. SEIU does not view volunteer work as a substitute for full-time paid organizing experience for hiring and promotion purposes. No. 03-1916 4
even lower organizer position, but decided to hire her as a senior organizer in training based
on Condra’s recommendation.2
Smith claims that Condra recommended Smith be given a two-step promotion to
organizing coordinator in March 2001, when she was still a senior organizer in training.3
Condra then recommended Smith be given a one-step promotion to senior organizer, which
she received in July 2001. In August, Robin Clark, a white woman, was placed in a
coordinator position for the central region. SEIU offered evidence that the coordinator
position was opened to allow Clark to return to her previously held coordinator position after
serving with an SEIU local union affiliate for one year.
On September 28, 2001, Smith’s employment was terminated. The termination letter
gave numerous reasons for the termination, including:
[Y]ou acted disrespectfully and high-handedly with coworkers, to the point that your coworkers asked for a meeting with the Central Region Organizing Director this past July to discuss problems they were having with you. The most glaring example of your inappropriate behavior occurred on July 13, when you got in to [sic] verbal altercations with co-workers Rashida Khermohamed and Demetrius Davis. When Rashida stated that she wanted to talk to her supervisor, Tony Condra, you pointed your finger in her face saying, “Bitch, this is my Mother Fucking man . . . and if you want to talk to Tony, you have to go through the chain of command. Talk to me and I’ll talk to Tony. I’m your Mother Fucking supervisor and this is my Goddamn man, so you
2 SEIU offered evidence that two white applicants with more experience than Smith were hired as organizers. Maria Wickstrom was hired as an organizer in 1999. She had seven years of professional organizing experience with the AFL-CIO. Stella Lindsay was hired as an organizer six months before Smith was hired. Lindsay had 12 years of professional organizing experience with the International Ladies Garment Workers Union and the Union of Needletrades Industrial & Textile Employees. 3 The parties dispute the particulars of the recommendation. SEIU claims Condra asked Woodruff to authorize the creation of a “roving” organizing coordinator position that he would want either Smith or Gabe Morgan to fill. Woodruff states he rejected the idea of such a new position. Smith claims approval for a roving organizing coordinator was not necessary because travel was an expected part of all coordinator positions. No. 03-1916 5
better talk to me.” When Demetrius Davis tried to intercede, you then turned on him. Your treatment of both Rashida and Demetrius was totally unacceptable. Furthermore, you were not Rashida’s supervisor, and she was not required to go through you if she wanted to talk to Tony.
The termination letter also stated that Smith had misrepresented information about
Khermohamed to Byron Hobbs. As a result, Hobbs wrote a memorandum to SEIU on July
31, 2001, asking that Khermohamed be removed from his local affiliate. After he learned
Smith’s representations were false, he rescinded the memorandum. Smith’s termination letter
stated: “Your conduct not only was dishonest, but also undermines your relationship with
coworkers and your and SEIU’s relationship with locals.”
Finally, the letter accused Smith of failing to participate in training programs or
discuss her development plan, failing to work honestly and respectfully with leaders and staff
of the Local 73HC, and failing to cooperate and meet with Nancy Cross, who was
investigating the July 13 and other incidents on behalf of SEIU.
When Debbie Schneider made the decision to terminate Smith’s employment, she had
the following information available to her: (1) Cross’s report, which concluded that there was
“no credible information as to what was said to whom” on July 13; (2) a letter of complaint
from Khermohamed describing the July 13 incident; (3) a letter from Davis corroborating
Khermohamed’s account; (4) a memorandum signed by five organizers who contradicted
Smith’s allegation that Khermohamed accused Hobbs of sex discrimination; and (5) a tape
recording made by Davis of a telephone conversation between Davis and Condra in which
Condra asked Davis to give a false account of what had occurred on July 13.4 In the taped
4 Smith does not challenge SEIU’s claim that the tape is admissible in federal court. No. 03-1916 6
conversation Condra told Davis “there’s two things I want you to deny . . . [a]nd I’ll cover
your ass.” Condra wanted Davis to “put a letter together . . . and say that you never had a
controversy or a conversation with [Smith], or any kind of disruption with [Smith] –
(inaudible) - - that day . . . and you are clueless that you don’t know what’s going on . . . .”
Later, Condra corroborated Smith’s statement that Davis was the aggressor in the incident.
Sharon Nelson, an African American woman, was hired as a senior organizer after
Smith was discharged. Smith claims that Nelson was promoted to senior organizer with less
experience than Smith had when she was hired as a senior organizer in training.
B. Factual History Relating to Brooks
Brooks was hired at SEIU in 1998 as an organizer in training and promoted to
organizer in 1999. She worked out of the Detroit office of the central region. On October
23, 2001, Brooks received a permanent transfer to the Chicago office effective November 2,
2001. Brooks grieved the transfer. As a result, she received a one-month extension of time
to transfer.
On November 25, 2001, Brooks asked Schneider for permission to carry 30 days of
2001 vacation leave over into 2002 so that Brooks could take off work from January 2
through February 4, 2002. After learning that Brooks had just taken two weeks off,
Schneider discussed the request with Brooks. Brooks said the two weeks had not been for
vacation but to look for a place in Chicago. Brooks told Schneider that she had found a place
ready to move into during the first week of December.
On December 5, 2001, Judith McCullough, SEIU’s Operations Manager, sent a letter
to Brooks stating the following: No. 03-1916 7
I am writing to confirm that you have accepted a permanent transfer to Chicago. You told SEIU that you had found permanent housing effective December 4, 2001. SEIU will make your permanent transfer to Chicago effective on that date.
In fact, however, Brooks had not obtained permanent housing in Chicago. Instead,
Brooks lived with a cousin in Chicago, at times sleeping on the floor. She states that she did
not want to give up her house in Detroit until the arbitrator made a decision on her transfer
grievance. Brooks did not correct SEIU’s understanding of her agreement to the transfer or
her permanent housing situation.
Brooks took two extended, paid, sick leaves and did not work in the month of
December 2001. She also used the carried-over vacation days and did not work in the month
of January 2002.
Brooks’s Michigan physician provided a note stating that Brooks could return to work
on “2/4/02 with no restrictions,” but Brooks did not report for work on February 4. On
February 5, Brooks worked but said she would be out two days because she was sick. The
local union organizing leader reported to Schneider that Brooks said she was commuting from
Michigan and would not be able to routinely work on weekends. Brooks then provided a
doctor’s note dated February 8 saying that Brooks could work only 40 hours a week (seven
to eight hours a day) with two days off a week. Brooks states that she took the last two weeks
of March off as earned compensation time, which was approved by Schneider.
Schneider scheduled a meeting with Brooks and a union representative on April 1,
2002, and asked Brooks to bring documentation of her move to Chicago. At the meeting, No. 03-1916 8
Brooks told Schneider that she would not give up her house in Detroit until the arbitration of
the grievance was completed.
On April 5, 2002, Debbie Schneider notified Brooks that she was being discharged.
The termination letter stated that Brooks was discharged because (1) Brooks fraudulently
misled SEIU into believing she had relocated her personal residence to Chicago in order to
collect paid leave she otherwise would not have received, (2) Brooks had refused to do work
an organizer is routinely expected to do, (3) Brooks failed to work effectively with the last
major organizing local in the central region that was willing to work with her.
C. Procedural History
Plaintiffs filed their complaint on May 20, 2002, alleging race discrimination in
violation of Title VII and the ELCRA by SEIU, Tom Woodruff, Debbie Schneider, and David
Mott.5 They also claimed retaliation, common law wrongful discharge, and defamation.
Plaintiffs later dismissed or abandoned all claims except the discrimination claims against
SEIU. The district court granted SEIU summary judgment, and this appeal followed.
II.
We review de novo the district court’s grant of summary judgment. See, e.g., Smith
v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when
there are no issues of material fact in dispute, and the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(c). In deciding a motion for summary judgment, the
court must view the factual evidence and draw all reasonable inferences in favor of the
5 Mott was the staff director who oversaw SEIU’s program to recruit and train organizers. No. 03-1916 9
nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
Because neither Smith nor Brooks presented direct evidence of racial discrimination,
the McDonnell Douglas burden shifting approach applies to this case under both Title VII and
the ELCRA. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hazle v. Ford Motor
Co., 628 N.W.2d 515, 520-21 (Mich. 2001). Under the McDonnell Douglas framework, the
plaintiff faces the initial burden of presenting a prima facie case of discrimination. Vaughn
v. Watkins Motor Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002). The establishment of a
prima facie case creates a rebuttable presumption of discrimination and requires the defendant
to articulate some legitimate, nondiscriminatory reason for taking the challenged adverse
employment action. Id. If the defendant is able to satisfy this burden, the plaintiff must then
prove that the proffered reason was actually a pretext to hide unlawful discrimination. Id.
A. Smith - Failure to Hire as Senior Organizer
The district court held that Smith’s Title VII claim that SEIU unlawfully discriminated
against her when it failed to hire her as a senior organizer was time barred. On appeal, Smith
pursues this claim only under the ELCRA. We find that Smith did not meet her burden of
proving that SEIU’s legitimate nondiscriminatory reasons for hiring her as a senior organizer
in training were pretextual.
An employee may demonstrate pretext with evidence of how the employer treated
similarly situated employees outside the protected class. Lytle v. Malady, 579 N.W.2d 906,
917 (Mich. 1998). To show that an employee was similarly situated, the plaintiff must prove
that all of the relevant aspects of her employment situation were nearly identical to those of No. 03-1916 10
another employee’s employment situation. Town v. Mich. Bell Tel. Co., 568 N.W.2d 64, 70
(Mich. 1997). A plaintiff cannot survive summary judgment by relying only on subjective
statements that she was more qualified than someone else to receive a certain position. Hazle,
628 N.W.2d at 527-28. Instead, the plaintiff must show that there is a genuine issue of
material fact as to whether discriminatory animus motivated the employer, not whether the
employer was wise, shrewd, prudent, or competent. Id. at 527.
Smith states that seven other employees were hired or promoted to the senior organizer
position with equal or fewer qualifications than she had. Karen Backus, Tanya Boone, Renee
Watkins, Mary Beth Tinker, Greg Maron, Joseph Geevarghese, and Robin Clark. SEIU
offered unrebutted evidence that Backus, Watkins, and Tinker were not hired as senior
organizers. Backus was hired as an international representative; Watkins and Tinker were
hired as nurse specialists. All three received these positions because of their experience and
training as nurses. Smith argues that it is appropriate to compare the senior organizer position
to the international representative and nurse specialist positions because the salaries were all
paid out of the same budget. We don’t find this argument to be persuasive. In any event,
Smith was not similarly situated to these three employees because she was not a nurse.
Smith also was not similarly situated to Boone, Maron, and Clark because they had
more professional organizing experience. Smith had only a little more than three years of
professional organizing experience. Boone and Maron had five years of professional
experience. Clark had four years of professional organizing experience; and, in addition, she
had worked with a large national union, as opposed to a local organization. No. 03-1916 11
Finally, Geevarghese, an Asian-American male, had a few months less professional
organizing experience than Smith, but he had worked for seven months with the SEIU, as
opposed to a local organization, before being hired as a senior organizer. Thus, he also was
not similarly situated to Smith because of his prior tenure at SEIU. The district court,
therefore, properly granted summary judgment on this claim.
B. Smith - Failure to Promote
Smith also claims racial discrimination in SEIU’s failure to give her a two-step
promotion from senior organizer in training to organizing coordinator. To establish a prima
facie case of racial discrimination based upon a failure to promote, Smith must demonstrate
that: (1) she is a member of a protected class; (2) she applied for and was qualified for a
promotion; (3) she was considered for and denied the promotion; and (4) other employees of
similar qualifications who were not members of the protected class received promotions at
the time Smith’s request for promotion was denied. Nguyen v. City of Cleveland, 229 F.3d
559, 562-63 (6th Cir. 2000).
SEIU argues that Smith failed to establish a prima facie case because there were no
vacant coordinator positions in March 2001. Thus, SEIU claims Smith never applied for and
was never denied a promotion. Smith responds that a position must have been open which
she was denied because in August 2001, Clark was placed in a coordinator position in the
central region. Even if we accept Smith’s reasoning, Smith has not established a prima facie
case because Clark was not similarly situated.
For two employees to be considered similarly-situated, the similarities between the
plaintiff and the other employee must exist “in all relevant aspects of their respective No. 03-1916 12
employment circumstances.” Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004)
(internal quotation marks and citation omitted). Differences in job title, responsibilities,
experience, and work record can be used to determine whether two employees are similarly
situated. Id.
We conclude that Clark was not similarly situated to Smith because Clark had previous
experience as an organizing coordinator. Thus, Clark was not promoted to the coordinator
position. Instead, she was returning to a position she held before leaving to work for a local
union affiliate. Because Smith failed to present evidence sufficient to raise a genuine issue
of material fact to establish that she was treated differently than a similarly situated
nonprotected employee, we affirm the district court’s grant of summary judgment on Smith’s
failure-to-promote claim.
C. Smith - Discharge
In order to establish a prima facie case of discriminatory discharge, Smith must show
that (1) she is a member of a protected class, (2) she was terminated from her employment,
(3) she was qualified for the position in question, and (4) she was replaced by a nonprotected
person or a similarly situated nonprotected employee was treated more favorably.
McDonnell Douglas, 411 U.S. at 802; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.
1992).
We affirm the grant of summary judgment on Smith’s discriminatory discharge claim
because she failed to submit sufficient evidence to establish the fourth element of a prima
facie case. Smith does not argue that a similarly situated employee was treated more
favorably, and she failed to prove that she was replaced by someone outside the protected No. 03-1916 13
class. Smith asserts that Nelson’s promotion to organizer was a sham and an attempt by
SEIU to appear racially neutral in terminating Smith. She fails to point to any evidence in
the record, however, regarding Nelson’s qualifications or experience. Bald assertions are
insufficient to create a genuine issue of material fact. FED. R. CIV. P. 56(e); Bryant v.
Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974) (holding that an opponent to a summary
judgment motion may not rest merely upon “conclusory and unsupported allegations, rooted
in speculation”).
Even if she had established a prima facie case, summary judgment was nonetheless
proper because Smith failed to show that SEIU’s proffered reasons were pretextual.
Schneider stated that one of the reasons for Smith’s discharge was her disrespectful treatment
of fellow employees. One of the specific examples Schneider cited was the July 13 incident
with Khermohamed. Smith argues that the overwhelming evidence shows that she was not
involved in an altercation with Khermohamed.
A plaintiff can meet his burden of showing pretext by producing evidence that the
employer’s proffered reason for his discharge was false. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000). We have adopted an “honest belief” rule with regard
to an employer’s proffered reason for discharging an employee. Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). “[A]s long as an employer has an
honest belief in its proffered nondiscriminatory reason for discharging an employee, the
employee cannot establish that the reason was pretextual simply because it is ultimately
shown to be incorrect.” Id. The employer has an honest belief in its reasons if the employer No. 03-1916 14
reasonably relied “on the particularized facts that were before it at the time the decision was
made.” Id. (internal quotation marks and citation omitted).
Schneider relied on the following particularized facts in making the termination
decision: (1) Khermohamed and Davis signed statements accusing Smith of verbally abusing
Khermohamed on July 13; (2) Condra had asked Davis to falsely report the July 13 incident,
which undermined his credibility when he gave a statement stating that Davis, not Smith, was
being verbally abusive that day; (3) a meeting had been called by coworkers to discuss
complaints about Smith’s treatment of fellow employees; and (4) several organizers signed
a statement denying that Khermohamed ever accused Hobbs of sex discrimination. Smith has
failed to present any evidence to refute Schnieder’s honest belief that Smith engaged in
inappropriate conduct toward her fellow employees that justified her discharge.
Smith argues that Khermohamed’s letter should have been discounted because she was
a disgruntled employee,6 and it was unreasonable to discount Condra’s eyewitness account
of the July 13 incident. Even if we were to accept this reasoning, this is not enough to prove
that Schneider’s decision to terminate Smith for inappropriate treatment of fellow employees
was unreasonable or pretextual. Smith does not discount the evidence of her false statements
to Hobbs and the complaints of other organizers about her mistreatment of them. This
information supports Schneider’s decision to terminate Smith because of her inappropriate
treatment of her fellow employees. Moreover, it was not unreasonable for Schneider to
question the credibility of Condra’s statement in the face of not only Khermohamed’s
6 Condra attempted to discharge Khermohamed on August 6, the day she wrote her letter describing the July 13 incident, but Condra’s decision was overruled by his superiors. No. 03-1916 15
statement but also Davis’s statement, as well as the tape recording where Condra asked Davis
to lie about what happened on July 13. Because Smith failed to meet her burden of proving
SEIU’s proffered reasons for her termination were pretextual, we affirm the grant of summary
judgment.
D. Brooks - Discharge
In response to Brooks’s unlawful discrimination claim, SEIU offered evidence that one
of its reasons for terminating Brooks’s employment was that she misled SEIU into believing
that she had relocated to Chicago in order to collect paid leave she otherwise would not have
received. Brooks argues that the evidence in the record reveals that she never told anyone
she had acquired permanent housing in Chicago. She argues that the district court
impermissibly made a credibility determination. The question is not whether Brooks’s
evidence was credible. The question is whether SEIU honestly believed in its proffered
nondiscriminatory reason for discharging Brooks. Majewski, 274 F.3d at 1117.
The undisputed evidence shows that during a telephone conversation Brooks told
Schneider that she had found a place in Chicago that would be available on December 5. She
now explains that while she said she had found a house that would be available on December
5, she never said that she had actually purchased that house. On December 5, however, SEIU
sent a letter to Brooks confirming that Brooks had told SEIU that she had found permanent
housing. Brooks never corrected what she has now shown was a misunderstanding. Brooks’s
assertion that she did not actually tell anyone that she had permanent housing in Chicago is
insufficient to call into question SEIU’s honest belief that she did. No credibility
determination is needed to reach this conclusion. Nor are we persuaded by Brooks’s No. 03-1916 16
contention that SEIU should have known she had not purchased a home in Chicago because
she did not apply for a moving expense benefit or stipend. Because we find that Brooks has
not met her burden of raising a genuine issue of material fact as to whether SEIU’s reasons
for discharging her were pretextual, we affirm the grant of summary judgment.7
AFFIRMED.
7 In the statement of facts, Brooks alludes to two arguments that she does not develop in the argument section of the brief. First, she states that a white female, Stella Lindsey, applied for and received multiple weeks of medical leave, decided not to transfer, and was laid off rather than discharged. SEIU responds that Lindsey was not similarly situated because there was no evidence that Lindsey misled SEIU with respect to her transfer decision. Second, Brooks challenges the statement in her termination letter that she was not welcomed at any central region locals. She does this by arguing that the letters must have been solicited by Schneider because the letters from the locals were all written within a few weeks of each other just before Brooks’s termination. Schneider stated in an affidavit that she asked for written confirmation from the locals after receiving information verbally in prior meetings.