NOT RECOMMENDED FOR PUBLICATION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.
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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
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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.
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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.
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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
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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.
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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
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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.
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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.