Taylor v. Board of Education of Memphis City Schools

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0492n.06
Filed: July 13, 2007

Nos. 05-6460

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BEVERLY TAYLOR; RENA CHILDRESS,

Plaintiffs-Appellants,

v. On appeal from the United States
District Court for the Western
BOARD OF EDUCATION OF THE MEMPHIS District of Tennessee
CITY SCHOOLS,

Defendant-Appellee.
/

BEFORE: RYAN and GRIFFIN, Circuit Judges, and HOOD, District Judge.*

RYAN, Circuit Judge. Two African American plaintiffs, Beverly Taylor and Rena

Childress, challenge the district court’s grant of summary judgment in favor of the

defendant Memphis City School Board. The plaintiffs’ 42 U.S.C. § 1983 suit alleges that

the Board discriminated against them on the basis of race by hiring a less qualified white

applicant, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The

plaintiffs further contend that the Board impermissibly retaliated against them for filing a

complaint with the Equal Employment Opportunity Commission (EEOC). We find that

summary judgment is inappropriate because there are genuine issues of material fact

regarding the motivation for the Board’s hiring decision, and therefore, we will reverse the

district court’s judgment.

*
The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern
District of Kentucky, sitting by designation.
(No. 05-6460) -2-

I.

The plaintiffs’ allegations derive from the School Board’s hiring of a new elementary

counseling supervisor for Memphis City Schools in the fall of 2001. After posting the

opening for the elementary level counselor supervisor position and accepting applications,

the Board interviewed four candidates on September 18, 2001. The interview panel

consisted of seven people, including three African Americans. The panel awarded the

highest interview score to Hattie Isen, one of three African American candidates; the other

two are the plaintiffs. Before revealing the results of the interviews, the Board announced

an additional open position of counseling supervisor for the middle school. The Board

discarded the original interview scores and posted a new job vacancy listing all available

positions, including the elementary supervisor position for which the plaintiffs had already

interviewed. Because the scores from the original interviews for the elementary level

position had been discarded, applicants were informed that they had to re-interview for the

elementary counseling supervisor position.

The new panel consisted of five members, including only one African American.

The second round of interviews were conducted on November 15, 2001. A white applicant,

Barbara Morano, received the highest score in the second round of interviews. Of the five

applicants interviewed on November 15, Taylor and Childress received the two lowest

ratings. The results of the interviews were forwarded to two school administrators, Marieta

Harris and Jeane Chapman, who, after consulting the interview panel’s recommendation,

made the final decision to hire Morano.

Taylor and Childress now argue, as they did below, that the Board had a

discriminatory motive for hiring Morano. In their affidavits, the plaintiffs contend that
(No. 05-6460) -3-

administrator Harris made several remarks indicating that race influenced the Board’s

hiring decision. At a meeting on September 24, 2002, Harris stated that the school chose

Morano “to maintain racial balance” and that “[w]e do have to maintain racial balance, but

it could have been done in a better way. She [(Glynda Cryer, the administrator who

covered the interview panel)] could have had a larger pool of better qualified whites.” The

plaintiffs also assert that they possessed superior qualifications to Morano. At the time of

her application, Taylor held a Ph.D from Kansas State University, had nine years of

teaching experience and 13 years of experience as a guidance counselor. Childress held

a Master’s Degree from the University of Memphis and had worked in the Memphis public

school system for 23 years, including 13 years as a counselor. Morano had worked in the

Memphis city schools for a shorter period of time, and her experience consisted primarily

of working as a speech therapist.

II.

We review the district court’s legal conclusions and its grant of summary judgment

de novo, using the same Fed. R. Civ. P. 56(c) standard as the district court. Appalachian

Res. Dev. Corp. v. McCabe, 387 F.3d 461, 463 (6th Cir. 2004). Summary judgment is

proper only where “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c). “In deciding upon a motion for summary judgment, we must view the

factual evidence and draw all reasonable inferences in favor of the non-moving party.”

Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997).

III.
(No. 05-6460) -4-

Title VII of the Civil Rights Act of 1964 outlaws discrimination against “any individual

with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). Analysis of Title VII disparate

treatment claims depends on the type of evidence proffered by the plaintiff.

When a plaintiff presents direct evidence of discriminatory intent, the burdens of

production and persuasion shift to the employer to prove that it would not have hired the

plaintiff “even if it had not been motivated by impermissible discrimination.” Nguyen v. City

of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). “[D]irect evidence is that evidence which,

if believed, requires the conclusion that unlawful discrimination was at least a motivating

factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales

Corp., 176 F.3d 921, 926 (6th Cir. 1999).

When assessing whether a remark such as the one attributed to Harris constitutes

direct evidence of discrimination, we look to the identity of the speaker. Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998). Isolated remarks by

individuals “with no managerial authority over the challenged personnel decisions”

ordinarily are not indicative of discrimination. Id. In McDonald v. Union Camp Corp., 898

F.2d 1155, 1161 (6th Cir. 1990), this court found that a statement by an intermediate level

official was not indicative of discrimination when the ultimate employment decision was

made by an upper level official. The McDonald rule does not apply formalistically; remarks

by any official who played a “meaningful role” in the employment decision or “may have

influenced the decision” may constitute direct evidence of discrimination. Ercegovich, 154

F.3d at 355.
(No. 05-6460) -5-

The district court found that Harris’s statement did not constitute direct evidence of

discrimination because Harris did not play an important role in the employment decision.

This conclusion is mistaken. Harris, along with Jeane Chapman, retained the ultimate

authority to select an applicant to fill the counselor supervisor position. Cryer, who

selected the interview panel members, explained in her affidavit that “Ms. Chapman and

Dr. Harris made the final choice as to who the successful candidate would be.” Given

Harris’s role in the hiring decision, her statements that Morano was hired to maintain racial

balance and that the Board should have attracted more white applicants, plainly indicate

that unlawful discrimination may have been at least a motivating factor in the Board’s hiring

decision.

Because the plaintiffs proffered direct evidence of discrimination, the burdens of

production and persuasion shifted to the School Board to demonstrate that it would not

have hired Taylor or Childress, irrespective of its discriminatory intent. Nguyen, 229 F.3d

at 563. The Board argues that any discriminatory motive was irrelevant because the hiring

decision was based entirely on the candidates’ relative performances during the November

15 interviews, in which Morano rated higher than either plaintiff. Taylor and Childress

argue that the interview process was a “sham” to facilitate a hiring decision premised on

impermissible racial considerations.

The district court should not have entered summary judgment because there is, at

the very least, a question of fact pertaining to the actual motivations involved in the Board’s

hiring decision. First, the Board contends that it conducted a second round of interviews

so that qualified individuals could apply to all of the open positions, including the newly

opened middle school position. The plaintiffs maintain that the Board discarded the
(No. 05-6460) -6-

original interview results to facilitate the hiring of a white supervisor, and point to the

evidence that the first interview panel awarded the highest scores to an African American

applicant. Second, the record does not adequately explain the varying composition of the

two interview panels. The first panel consisted of seven members, including three African

Americans, whereas the second panel consisted of five members including a single African

American. During oral argument, the Board claimed that the availability of potential

interviewees dictated the composition of the two panels. The plaintiffs respond that Cryer,

the administrator tasked with composing the panels, denied a request from an African

American woman, Myrtle Malone, to serve on the second panel. Finally, the Board offers

no evidence supporting its claim that the hiring decision was based entirely on interview

performance. For example, the Board did not refute the plaintiffs’ allegations that their

educational attainment and work experience were superior to Morano’s. Because of these

disputed material facts, we think the district court erred by granting summary judgment in

favor of the School Board.

IV.

Taylor and Childress next argue that the district court erred by granting summary

judgment for the School Board on their claims that the Board unlawfully retaliated against

the plaintiffs for lodging complaints with the EEOC. Taylor alleges that the Board

eliminated her position in response to her filing a complaint with the EEOC, while Childress

contends that the Board retaliated against her by refusing to assign interns to support her

work. Because neither plaintiff demonstrates a causal link to a materially adverse

employment action, we affirm the district court.
(No. 05-6460) -7-

Employers may not retaliate against employees who allege violations of Title VII.

42 U.S.C. § 2000e-3(a). Retaliatory acts by an employer are not actionable unless they

are “materially adverse” to a plaintiff’s employment. Kocsis v. Multi-Care Management,

Inc., 97 F.3d 876, 885 (6th Cir. 1996). Materially adverse actions include “a termination

of employment, a demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, [or] significantly diminished material

responsibilities.” Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th Cir. 2000).

To establish a prima facie case of retaliation, a plaintiff must establish that (1) she

engaged in activity protected by Title VII, (2) the exercise of her civil rights was known to

the defendant, (3) the defendant took an adverse employment action against the plaintiff,

and (4) the adverse employment action was causally connected to the protected activity.

Nguyen, 229 F.3d at 563.

To satisfy the “causal connection” prong, “a plaintiff must produce sufficient

evidence from which an inference could be drawn that the adverse action would not have

been taken had the plaintiff not filed a discrimination action.” Id. The plaintiff’s burden at

the prima facie stage is minimal, requiring merely that the plaintiff establish “‘that the

protected activity and the adverse action were not wholly unrelated.’” EEOC v. Avery

Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (citation omitted). However, temporal

proximity, standing alone, is insufficient to suggest causation. In Harrison v. Metropolitan

Government of Nashville, we held that a plaintiff terminated 15 months after filing an EEOC

complaint established a prima facie case because the plaintiff presented significant

evidence of retaliation, including testimony from three employees who related the

employer’s threats to retaliate. 80 F.3d 1107, 1119 (6th Cir. 1996), overruled on other
(No. 05-6460) -8-

grounds by Jackson v. Quanex Corp., 191 F.3d 647, 667 (6th Cir. 1999). By contrast, this

court found disciplinary notices filed only weeks after an EEOC complaint, which

culminated in a plaintiff’s termination four months after the complaint, did not create an

inference of discrimination because of the dearth of additional evidence of retaliatory intent.

Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986).

Childress has not alleged a materially adverse employment action. The failure to

assign interns to assist her in her work is not an adverse employment action comparable

to termination, a less distinguished title, loss of benefits, or diminished responsibilities. On

the other hand, Taylor’s allegation that the Board terminated her position in response to

her EEOC complaint does satisfy the requirement of material adversity. However, Taylor

fails to demonstrate a causal nexus between her EEOC complaint and termination. Taylor

filed a formal complaint with the EEOC on February 4, 2002, and received a right to sue

letter on June 24, 2002. The School Board terminated her at the conclusion of the 2003

school year, 16 months after her complaint. Although the record supports Taylor’s

allegation she was fired “[a]fter voicing complaints of racial discrimination,” she presents

no evidence of retaliatory intent beyond this 16 month connection. Such bare allegations

are insufficient to sustain a finding of causation necessary for a retaliation claim.

V.

We conclude that summary judgment should not have been entered dismissing the

plaintiffs’ discrimination claims because there are genuine issues of fact relating to the

material issue of the School Board’s true motive for hiring Barbara Morano. However, we

conclude that the plaintiffs have failed to demonstrate that the district court erred by

granting the Board’s motion for summary judgment on their unlawful retaliation claims.
(No. 05-6460) -9-

Childress failed to allege a materially adverse employment action, and Taylor failed to

demonstrate a nexus between her EEOC complaint and her subsequent termination.

Therefore, we REVERSE the district court’s summary judgment for the defendant on the

plaintiffs’ discrimination in hiring claims, AFFIRM the summary judgment with respect to

the retaliation claims, and REMAND for further proceedings.