Johnson v. Middle Metropolitan Government of Nashville & Davison County

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1087n.06

Nos. 10-6102/11-5174 FILED
Oct 18, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT

WILLIAM L. JOHNSON, et al.,

Plaintiffs-Appellants,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY,
TENNESSEE, et al.,

Defendants-Appellees.

/

BEFORE: CLAY and KETHLEDGE, Circuit Judges; DOW, District Judge.*

CLAY, Circuit Judge. Plaintiffs William L. Johnson, Julian W. Moore, and Keith M.

Holley, police officers employed by Defendant Metropolitan Police Department (“MNPD”) of

Nashville, Tennessee, appeal the district court’s grant of summary judgment on Plaintiffs’ reverse

discrimination claims. Plaintiffs were passed over for promotion as a result of a departmental policy

that they allege favored minority and female candidates. They sued Defendants MNPD;

Metropolitan Government of Nashville and Davidson County (“Metro”); MNPD’s former chief,

Ronal W. Serpas; and other MNPD personnel, alleging violations of 42 U.S.C. § 1983; Title VII of

the 1964 Civil Rights Act, 42 U.S.C. § 2000e; and the Tennessee Human Rights Act (“THRA”),

*
The Honorable Robert M. Dow, Jr., United States District Judge for the Northern District of Illinois, sitting
by designation.
 Nos. 10-6102/11-5174

Tenn. Code Ann. §§ 4-21-401–4-21-408. The district court dismissed several of Plaintiffs’ claims

and, after the parties conducted discovery, granted Defendants’ motion for summary judgment.

Plaintiffs now appeal that judgment, several evidentiary rulings, and the district court’s decision to

tax costs against them. For the reasons that follow, we AFFIRM the district court’s judgment in all

respects.

BACKGROUND

I. The MNPD Promotion Policy

Prior to 2006, it was MNPD’s policy to promote officers strictly through the use of

standardized tests. An officer applying for a promotion completed a written civil service

examination and took part in a performance assessment designed to evaluate the officer’s skills and

leadership ability. The score received by the officer on each examination was combined into a

composite score. The candidates were ranked according to their composite scores, and the

departmental chief was required to promote the officers according to ranking, even if the chief

believed that a lower-ranked officer was more qualified than a higher-ranked officer.

This policy was the target of criticism in some corners. For one, an outside consultant

performed an audit of the MNPD in 2002 and concluded that this method of promoting officers

failed to take important criteria into consideration, such as each candidate’s managerial skill and past

performance. There was also concern about whether the policy inhibited minority candidates from

earning promotions, an issue that the local media reported in news articles around 2003. In addition,

there was a broader concern internally about the diversity of the MNPD’s ranks. For example, Metro

and MNPD officials complained to the attorney who represented the police officers union about a

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lack of diversity in the police force’s upper ranks during a meeting regarding negotiations on changes

to the promotion policy. These officials theorized that the testing scheme exacerbated the problem.

Well before changes were implemented to MNPD’s testing system, MNPD officials made

other attempts to increase the department’s racial diversity. In December 2003, Deputy Chief

Anderson wrote a memorandum to acting Chief of Police Deborah Faulkner urging her to promote

fifteen officers to the rank of sergeant before the current slate of officers eligible for promotions

expired on January 9, 2004 (the “Anderson memo”). According to the memorandum, the current

slate of fifteen officers included five minority candidates, but the upcoming list did not include a

single minority officer. As the memorandum further explained, because a list of candidates was

effective for several years, and because minority candidates reached the candidate list in lower

numbers than white candidates under the test-based promotions policy, it would be impossible for

minority candidates to be promoted if they were not selected from the current slate. Faulkner

announced the promotion of several officers shortly after the date of the memorandum, and the group

included several minority candidates.

Against this background, MNPD’s promotion policy underwent significant change in 2004.

Defendant Ronal W. Serpas, who was hired as the MNPD’s permanent chief in 2004, shared the

prevalent concerns about the test-based promotion policy’s soundness. He and Metro’s Human

Resources Department (“Metro HR”) recommended changing the policy, which the Metropolitan

Civil Service Commission (“the Commission”) did in 2006. Metro hired an outside contractor to

design and implement a new policy to replace the test-based promotion policy.

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The new policy continues to feature standardized tests, but now also gives the police chief

a measure of discretion in deciding whom to promote. Under the new policy, officers must still

complete the written civil service examination and skills and leadership assessment. The test results

are again combined into a composite score, with the assessment counting for 80% of a lieutenant

candidate’s score, and 70% of a sergeant candidate’s score. The candidates are then ranked

according to their scores.

However, under the new policy, when the chief prepares to promote an officer, he is given

an eligibility roster that lists the seven highest-scoring candidates eligible for promotion to the rank

of lieutenant or lists the nine highest-scoring candidates eligible for promotion to sergeant. The

roster does not rank the candidates according to their composite scores. Rather, the roster simply

lists the officers’ names in alphabetical order and does not reveal their scores. Each officer on the

list is considered equally qualified for promotion. The chief is not restricted in choosing among

candidates from the list. If the chief has multiple vacancies to fill, he can fill them entirely from the

roster given to him. If, however, the chief finds that none of the candidates are suitable for

promotion, he may also choose to promote none of them, and he may instead request a new roster

with the next tier of candidates. If the chief obtains another roster, the Commission removes the

names of the candidates not selected and then adds the next highest-scoring candidates.

II. The Disputed Promotions

This litigation concerns several lieutenant and sergeant vacancies that became available

during 2006 and 2007. Plaintiffs Johnson and Moore applied for promotions to lieutenant, and

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Plaintiff Holley applied to become a sergeant. Each officer was passed over and now contends that

considerations of race and gender improperly affected Serpas’ promotion decisions.

Serpas made his selections in three separate rounds between October 2006 and May 2007.

Moore’s composite test score ranked him seventh overall, and therefore his name appeared on the

first roster submitted to Serpas. Moore was not selected, in spite of the fact that a commander

allegedly invited Moore to a meeting of higher-ranked officers under the expectation that Moore

would be promoted. Johnson was ranked ninth among the candidates and was therefore not on the

first roster given to Serpas. Johnson’s name appeared on the second roster that was submitted to

Serpas, and Serpas did not select Johnson for promotion. According to Johnson and Moore, three

female candidates and two black male candidates ranked lower than them were selected instead.

Moore and Johnson contend that only race and gender can account for the fact that these candidates

were selected in front of them. Defendants note, however, that three white male candidates who

ranked below both Moore and Johnson also were selected for promotion.

For his part, Holley was ranked as a “police officer II” and applied to become a sergeant

around the same period. Serpas made selections for the sergeant positions in three separate rounds

between February and September 2007. Like Johnson, Holley was not on the first roster submitted

to Serpas, because Holley’s composite test score ranked him sixteenth among the sergeant

candidates. In his affidavit testimony, Holley asserted his name eventually moved up into the roster

for promotion, but that twenty-nine officers were eventually promoted to sergeant instead of him.

Holley does not allege how many female and black male officers were promoted in front of him, but

he contends that the highest-ranked black male officer in the initial rankings was ranked tenth and

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that the next-highest-ranked black male officer was ranked lower than twentieth. In their defense,

Defendants assert that Serpas promoted eleven white males who obtained composite scores lower

than Holley and declined to promote one white female who scored below Holley.

Plaintiffs nonetheless contend that Serpas and other MNPD supervisors abused the discretion

granted them under the new promotion policy in order to favor promotions of minority and female

candidates. In support of their contention, they cite, in addition to Serpas’ selections noted above,

several statements that MNPD officials made to local newspapers. For example, MNPD

spokesperson Dan Aaron explained the department’s rationale for the changes to the promotion

policy to The Tennessean in October 2006. The article stated:

Promoting the best candidates possible was the priority, and the chief was pleased
there were diverse candidates to pick from near the top of the list, Aaron said.

“The goal of this police department is to mirror the population of the city to the
greatest extent possible,” Aaron said. “When presented with the opportunity to
promote bright, qualified minority candidates, you always give those persons
consideration.”

The Tennessean wrote another article about the promotions in April 2007, this time emphasizing

non-minority officers’ complaints about the policy. Aaron was again quoted, this time saying, “[i]f

you have two candidates who are essentially equal and believe that both would make very good

supervisors, and if your choice is to make the department more diverse, you would probably elect

to include diversity in your choice.” In an article from another local news agency, Aaron was quoted

as saying that MNPD changed its promotion policy in order to increase diversity among MNPD

leadership.

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III. The Anonymous Supervisor Surveys

According to Plaintiffs, their claims of reverse discrimination gain further support by Serpas’

decision to use anonymous surveys completed by the candidates’ supervisors as part of his selection

process. At some point in 2006 or 2007, Serpas directed Eric Cardinal, an MNPD technology

analyst, to develop a computer-based survey for department supervisors to fill out in order to report

their assessments of the various lieutenant and sergeant candidates. As we explain below, Cardinal

developed the program and disbursed it digitally to the supervisors, who completed the surveys prior

to each round of promotions. Serpas used the surveys as part of his decision about whom to

promote. While the instructions for the surveys are in the record, the surveys themselves are not

available to us, because Serpas directed Cardinal to dispose of them once Serpas was finished using

them. Plaintiffs contend that in allowing the surveys to be deleted, Defendants violated federal law

and breached their discovery obligations. Upon learning of the destruction of the surveys, Plaintiffs

moved for a default judgment or, alternatively, a negative inference against Defendants. The district

court denied both requests.

Cardinal described the survey in his deposition testimony. Cardinal sent an email to the

appropriate supervisors that contained an internet link, which, when clicked, opened a page on the

MNPD’s intranet. The supervisor was directed to fill in the log-in information and was then given

a set of instructions (which are contained in the record). The supervisor then arrived at the survey

form, titled “Promotion Readiness and Potential Ratings for Sergeant Candidates,” with the

lieutenant survey accompanied by a similar title. The survey form explained that the survey’s

purpose was “to seek the opinions of supervisory and management personnel who have worked

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directly with, or otherwise have personal awareness of the skills, abilities, and knowledge possessed

by, candidates eligible for promotion to the rank of Sergeant [and Lieutenant] as to their overall

readiness and skill.” The instructions directed the supervisor to “consider the candidate’s potential

to lead, manage resources, and successfully perform the duties that he or she will be required to

perform.”

The supervisor was then asked to rate each candidate in several categories on a scale of 1 to

3, with 1 standing for “lowest potential” and 3 standing for “highest potential.” In the interest of

creating a spread in the candidates’ scores, the supervisor was only allowed to award a certain

number of 3, 2, and 1 rankings. The supervisor was instructed not to complete a survey for a

candidate with whom he was not sufficiently acquainted. When the supervisor completed the survey,

the computer program added his ratings to those of other supervisors regarding a particular

candidate. When all the supervisors had completed their surveys, the computer program generated

an average score for that candidate, referred to by the parties as a “rollup” score. Supervisors at and

above the rank of lieutenant completed surveys for the lieutenant candidates, and supervisors at and

above the rank of sergeant completed surveys for the sergeant candidates.

After the supervisors completed each round of surveys, Serpas examined each candidate’s

rollup score. The rollup score showed each candidate’s name, the number of supervisors who rated

him, and the candidate’s raw and average scores. After Serpas examined the rollups, Cardinal

deleted the data and notified Serpas that he had done so. Cardinal could have designed the program

to save the data, but Serpas did not direct him to do so. Serpas did, however, save the rollup scores

for each candidate, and Defendant turned that evidence over to Plaintiffs during discovery.

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In his deposition testimony, Serpas testified that he requested the computerized survey

because he had not personally met many of the promotion candidates in his three years of leading

the MNPD. He testified that he made his promotion decisions after considering the candidates’

employment, sick leave, and disciplinary records; their assignment positions; their educational and

training experiences; and any citizen complaints filed against them. According to Serpas, the

surveys added to the pool of information he used in his selections, and their simplified format

allowed him to avoid the time required to personally interview each supervisor about each candidate.

Serpas did not keep any notes documenting his promotion decisions. As Plaintiffs point out, the

personnel files Serpas consulted disclosed the race and gender of each candidate. Nevertheless,

Serpas testified that race and gender played no part in his decision and that he chose other candidates

over Plaintiffs because he decided those candidates “were more likely to be successful” than

Plaintiffs.

As a general matter, Serpas did not promote any candidate with an average rollup score

below 2.0, and each Plaintiff in the instant case scored below that threshold on each of the three

supervisor surveys conducted on their performance. Moore received average scores of 1.58 from

twelve supervisor surveys in the first round, 1.59 from seventeen supervisor surveys in the second

round, and 1.61 from eighteen supervisors in the final round. Johnson received average scores of

1.56 from sixteen supervisors in the first round, 1.58 from twelve supervisor surveys in the second

round, and 1.67 from twelve supervisor surveys in the third round. Holley was scored on only two

rounds of surveys, and in both rounds thirty-three supervisors scored him for scores of 1.42 and 1.70.

These scores placed each Plaintiff near the bottom of their candidate pools.

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Nevertheless, Plaintiffs offer several reasons for which they believe that Serpas’ use of the

surveys was improper. First, Plaintiffs allege that they were not made aware that the surveys would

be used as a basis of Serpas’ decision, and they argue that it was unfair for Serpas to use the

procedure when it had not been disclosed to the candidates. Plaintiffs also consider it improper that

a different number of supervisors rated them during each round of surveys. In response, Defendants

contend that this inconsistency was actually a virtue of the surveys, because, in their view, it

demonstrates that the supervisors followed the survey directions not to rate the candidates with

whom they were unacquainted. Finally, Plaintiffs contend that Serpas used the surveys as a

subterfuge to favor minority and female candidates, and they argue that he allowed Cardinal to

destroy the surveys in order to hide the department’s reverse discrimination.

IV. Plaintiffs’ Meetings with their Supervisors and Human Resources

After Serpas made his selections, Moore, Johnson, and Holley sought explanations for their

non-promotion from department officials. Moore and Johnson met separately with MNPD Deputy

Chiefs Steve Anderson, Honey Pike, and Joseph Bishop. In his meeting, Johnson asked the deputy

chiefs what information the department used to decide whom to promote. The deputy chiefs told

him generally that they used many types of information. Johnson asked the panel whether his work

history was used in the decision, and he asserts that Deputy Chief Anderson answered in a manner

suggesting that he did not know whether that information was considered. Johnson told the panel

that he believed he was the victim of reverse discrimination and asked the deputy chiefs to

investigate his complaint, but he alleges that the deputy chiefs never did so.

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Johnson also spoke with other MNPD officials and purportedly received information that

supported his view that female and minority candidates received favorable treatment. He spoke with

a commander who allegedly told him that “diversity issues needed to be dealt with” in the

promotions process. Johnson also spoke with an official within Metro HR. When Johnson asked

the official whether the candidates’ race and gender affected the promotions decision, the official

allegedly answered, “We all know what happened, if you know what I mean.”

Moore also discussed his complaint with the deputy chiefs and recorded his conversation.

Moore repeatedly raised the issue of race and its effect on the promotions decision, in response to

which Deputy Chief Pike conceded that MNPD did not reflect the community’s racial and gender

diversity. However, Deputy Chief Pike also insisted that the promotion policy was aimed at

identifying the most qualified candidates, regardless of minority status. According to Moore, Deputy

Chief Pike urged Moore to examine his own performance, evaluate whether he deserved a

promotion, and discuss his performance with his direct supervisors. Moore told the deputy chiefs

that he had done so and concluded that he possessed the qualities required to serve as a lieutenant.

Like Johnson, Moore expressed his belief that he was the victim of reverse discrimination, but the

deputy chiefs allegedly did not investigate the complaint.

Finally, Holley discussed his failure to earn a promotion with the three deputy chiefs as well.

According to Holley, none of the deputy chiefs offered him useful information about why he was not

promoted. Holley explained that his direct supervisor urged him to reapply for a promotion. He also

said that he was more involved in community affairs than other officers and was often approached

by other officers for answers about departmental policy and the law. Nevertheless, according to

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Holley, the deputy chiefs simply gave him a piece of paper listing thirty-three names with his name

thirty-second among the list.

V. Procedural History

Dissatisfied with the department’s promotion decisions, Plaintiffs filed two separate suits in

federal district court. Johnson and Moore sued in September 2007, alleging violations of the Equal

Protection Clause of the United States Constitution, 42 U.S.C. § 1983, and the THRA. After

Johnson and Moore received right-to-sue letters from the Equal Employment Opportunity

Commission, they added claims of disparate impact and disparate treatment under Title VII. For his

part, Holley filed a similar suit in January 2008, though his complaint contained no Title VII claims,

and he did not sue the MNPD. The district court eventually consolidated the cases.

Defendants Pike, Bishop, Anderson, and MNPD filed successful motions to dismiss and all

claims against them were dismissed on May 13, 2008.1 See Johnson v. Metro. Gov’t of Nashville

& Davidson Cnty., Tenn., Nos. 3:07-0979, 3:08-0031, 2008 WL 2066475 (M.D. Tenn. May 13,

2008) (“Johnson I”). Plaintiffs do not appeal those rulings.

Shortly thereafter, Metro filed a separate motion to dismiss Johnson and Moore’s disparate

impact claim.2 (RE 68, Mot. to Dismiss.) Plaintiffs filed a response and also sought leave to amend

their complaint. The district court denied Plaintiffs’ motion and dismissed the disparate impact

1
The federal claims against the officers were dismissed on the basis of qualified immunity.
Johnson I, 2008 WL 2066475, at *4. The state claims against the officers were dismissed for
insufficiency of the allegations. Id. at *8. The claims against MNPD were dismissed because it is
not an entity capable of being sued under Tennessee law. Id. at *8 n.5. By state statute, all claims
against the MNPD must be pursued against Metro. Id.
2
Holley did not assert a disparate impact claim.

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claim. Johnson v. Metro. Gov’t of Nashville & Davidson Cnty., Nos. 3:07-0979, 3:08-0031, 2008

WL 3163531 (M.D. Tenn. Aug. 4, 2008) (“Johnson II”).

Following those rulings, Plaintiffs’ remaining claims asserted that Metro and Serpas violated

the Equal Protection Clause and Defendants’ rights as protected by Title VII and the THRA.

Defendants moved for summary judgment in June 2010. During the same month, Plaintiffs moved

for a default judgment or, alternatively, for an adverse finding against Defendants, based upon

Defendants’ failure to completely preserve the records from the supervisor surveys.

On August 24, 2010, the district court denied Plaintiffs’ motions for a default judgment and

an adverse factual finding, granted summary judgment in favor of Defendants, and entered judgment

on all claims in favor of Metro and Serpas. Johnson v. Metro. Gov’t of Nashville, Nos. 3:07-0979,

3:08-0031, 2010 WL 3342211 (M.D. Tenn. Aug. 24, 2010) (“Johnson III”).

In November 2010, the clerk of the court taxed costs against Plaintiffs. The clerk awarded

to Metro the costs of defending both Metro and Serpas. Plaintiffs challenged the clerk’s taxation of

costs, but the district court upheld the award. Johnson, et al. v. Metro. Gov’t of Nashville, Nos. 3:07-

0979, 3:08-0031, 2011 WL 166320 (M.D. Tenn. Jan. 18, 2011) (“Johnson IV”).

Plaintiffs timely appealed the district court’s rulings. Original jurisdiction exists pursuant

to 28 U.S.C. §§ 1331 and 1367. This Court exercises jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

I. Spoilation of Evidence

Before addressing the merits, we turn first to Plaintiffs’ claim that the district court erred in

refusing to impose sanctions against Defendants for spoilation of evidence. Plaintiffs contend that

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they are entitled an inference of discriminatory animus or to a directed verdict because Defendants

failed to preserve the individual results of the supervisor surveys and thereby purposefully deprived

Plaintiffs of valuable information supporting their claims of reverse discrimination.

This Court reviews a district court’s decision regarding spoilation of evidence for abuse of

discretion. Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (citing Adkins v.

Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (en banc)). Federal law governs the determination of

whether spoilation sanctions are appropriate. Adkins, 554 F.3d at 652. A proper spoliation sanction

serves both fairness and punitive functions. Id. To accomplish these goals, a district court has

“broad discretion” to order sanctions it deems appropriate, including dismissing the case, granting

summary judgment, or imposing an adverse inference based on the lost or destroyed evidence. Id.

Recently, this Court articulated a three-part standard for determining whether sanctions are

appropriate:

[A] party seeking an adverse inference instruction based on the destruction of
evidence must establish (1) that the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2) that the records were
destroyed “with a culpable state of mind;” and (3) that the destroyed evidence was
“relevant” to the party’s claim or defense such that a reasonable trier of fact could
find that it would support that claim or defense.

Beaven, 622 F.3d at 553 (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,

107 (2d Cir. 2002) (citation omitted)).

In applying this three-part standard, we explained that the obligation element is met where

a defendant knows evidence might be relevant to future potential litigation. Id. Where, however,

there is no notice of potential litigation, there is less cause to believe the evidence was destroyed

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intentionally or with the intent to cover up incriminating information. See id. Nevertheless, we also

noted that the “culpable state of mind” element may be satisfied by showing only that “the evidence

was destroyed ‘knowingly, even if without intent to breach a duty to preserve it, or negligently.’”

Id. (internal citation, brackets, quotations omitted).

In the instant case, Plaintiffs argue that Metro was obligated to preserve the individual survey

results scored by each supervisor, in addition to the averaged rollup scores. Plaintiffs cite several

regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) and

pursuant to Title VII that obligate employers to preserve employment “records.” See 42 U.S.C.

§§ 2000(e)8, 2000(e)12; 29 C.F.R. § 1602.31. Defendants counter that employers are not required

to keep every single piece of paper created during the employment process, see Rummery v. Ill. Bell

Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001), and that the rollup scores were sufficient to satisfy their

statutory preservation obligations.

We agree with the district court that Defendants ought to have preserved the individual

survey scores. The surveys were part of, and indeed played an integral role in, a significant change

to an already controversial promotion system. Whether through formal litigation or otherwise, it was

reasonably foreseeable that Defendants would face some sort of challenge to the new promotions

system. Defendants should have anticipated that officers who were passed over for promotion might

question that decision and that Defendants would need to defend their selections. By deleting the

individual surveys, Defendants also deprived the officers of valuable information regarding their

individual performance, their likelihood for future promotion, and information that might have been

used in litigation. Regardless of whether the rollups were the most efficient way for Serpas to review

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the survey results, the individual scores had value warranting their preservation beyond his decision-

making process.

Furthermore, Defendants were statutorily obligated to preserve the surveys under EEOC and

Title VII regulations. The individual surveys are more properly viewed as records in and of

themselves, rather than the “rough drafts” or “processes” used to create a final employment record.

See id. at 558. Finally, it was technologically and logistically feasible to retain the survey data, and

Defendants have provided no convincing explanation for why they failed to do so.

Having determined that Defendants were obligated to preserve the surveys, the next question

is whether Defendants destroyed the evidence with requisite culpable state of mind. Plaintiffs

contend that this element is satisfied because the records were destroyed “knowingly” or

“negligently” even if the Chief acted “without [the specific] intent to breach [his] duty” to preserve.

See Beaven, 622 F.3d at 553. The district court rejected this argument, reasoning that Plaintiffs

could not show that Serpas “acted in bad faith.” Johnson III, 2010 WL 3342211, at *19.

The district court erred by injecting a bad faith component into its spoilation analysis. In

Atkins, we recognized that there may be a “continuum of fault ranging from innocence through the

degrees of negligence to intentionality.” 554 F.3d at 652–63. To the extent bad faith is relevant in

a spoilation decision, its most appropriately taken into consideration when adjusting the sanction

imposed. In the instant case, the record shows that Serpas deliberately chose not to preserve the

results and deliberately ordered the destruction of the individual surveys. Although there is no

evidence to show that he acted out of bad faith, his conduct was nevertheless intentional and

therefore meets the “culpable state of mind” element.

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Finally, Plaintiffs must prove that the destroyed surveys are “relevant” to their claims of

reverse discrimination. This, however, is where Plaintiffs’ request for sanctions must fail. The

information Plaintiffs wishes was preserved is of minimal relevance to proving their case for reverse

discrimination. First, the surveys themselves were a rather blunt instrument for measuring the

supervisors’ opinions. The individual results would have consisted only of a string of each

supervisor’s scoring, rated on a simple 1-to-3 scale, based on instructions which asked the

supervisors to take into account a host of qualities demonstrating promotional readiness. The

instructions did not tell the supervisors to consider race, gender, or diversity, and to the extent that

such motives improperly influenced the scores, they likely would not be immediately apparent from

the surveys’ simplistic numerical system.

In order to link discriminatory intent to the surveys, Plaintiffs would have to examine each

supervisor’s rankings for patterns of race or gender discrimination. However, the record does not

indicate that the program was enabled in such a way as to accomplish this. Although the supervisors

used a log-in “name” and password to access the surveys, the record is unclear as to whether the

supervisor’s identity was saved alongside with the survey results. Moreover, even if that information

was available, multiple inferences would be required to connect the individual surveys relevancy to

Plaintiffs’ claims. Plaintiffs would need to demonstrate not only an individual supervisor’s pattern

of discrimination, but also that the pattern of discrimination adversely affected the aggrieved

candidate’s averaged scores in comparison to his minority counterparts, and by consequence, Serpas’

evaluation of the rollup scores. These serious hurdles attenuate the surveys from the ultimate

promotion decision at multiple levels. As the proximate causation of the surveys weakens, so does

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their relevance. Moreover, as we mentioned above, Plaintiffs scored significantly below their

promoted counterparts on the supervisor surveys. Accordingly, the likelihood that one or several

supervisors’ improper discrimination materially altered Plaintiffs’ rollup scores is even less likely.

The only other way Plaintiffs can conceivably prove the surveys’ relevance is by claiming that the

rollups were fabricated. Plaintiffs do not seriously press this argument.3

Consequently, the district court did not abuse its discretion in denying sanctions.

II. Reverse Discrimination Claims

A. Standard of Review

We review a district court’s grant of summary judgment de novo. Wuliger v. Mfrs. Life Ins.

Co., 567 F.3d 787, 792 (6th Cir. 2009). Evidence in the record is viewed in the light most favorable

to the nonmoving party, with all reasonable inferences drawn to that party’s benefit. Combs v. Int’l

Ins. Co., 354 F.3d 568, 576–77 (6th Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970)). Summary judgment is appropriate only where the evidence raises no genuine issues

of material fact “such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B. Statutory Framework

Title VII makes it unlawful for an employer “(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

3
Officer Holley argues that he was only supervised by ten supervisors in his direct chain of
command; therefore, the rollup indicating that he was ranked by thirty-three supervisors is suspect.
However, Officer Holley misconstrues the survey instructions, which asked the supervisors to rank
any candidate whom they “worked directly with or otherwise [had] personal awareness of the skills,
abilities, and knowledge of.”

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terms, conditions, or privileges of employment, because of such individual’s race, color, religion,

sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for

employment in any way which would deprive or tend to deprive any individual of employment

opportunities” on account of one of the same five grounds listed above. 42 U.S.C. § 2000e-2. There

are two principal and distinct means of proving employer discrimination under Title VII: disparate

treatment and disparate impact. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). We address

Plaintiffs’ claims of disparate treatment first.

C. Disparate Treatment Claims

1. Direct Evidence of Reverse Discrimination

Plaintiffs first contend that they offered direct evidence of discrimination proving that they

were treated disparately from their minority counterparts. Specifically, Plaintiffs cite to (1) the 2003

Anderson memo; (2) Aaron’s public remarks to The Tennessean; and (3) the comments made by

Commander Nash, Deputy Chief Pike, and Metro HR representative Sinor in their meetings with

Plaintiffs.

Direct evidence “is that evidence which, if believed, requires the conclusion that unlawful

discrimination was at least a motivating factor in the employer’s actions.” Amini v. Oberlin Coll.,

440 F.3d 350, 359 (6th Cir. 2006); Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 719

(6th Cir. 2006) (quoting Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir.

2005)). Direct evidence must prove not only discriminatory animus, but also that the employer

actually acted on that animus. See Amini, 440 F.3d at 359. For the following reasons, none of

Plaintiffs’ proposed evidence meets this standard.

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The Anderson memo does not constitute direct evidence because it would require multiple

inferences to reach a finding of discrimination. First, the memo is three years removed from the

events of this case, and from it we would need to infer that Anderson’s opinions in 2003 motivated

his actions in 2005–2006. See, e.g., Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025–26 (6th Cir.

1993) (rejecting statements made about the plaintiff nearly a year prior to his layoff). Additionally,

Deputy Anderson was not the decisionmaker in the promotions process. Rather, Serpas was

responsible for the disputed promotions, and Deputy Anderson only participated in the process by

completing supervisor surveys. See Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000)

(“Statements by nondecisionmakers cannot suffice to satisfy the plaintiff’s burden of demonstrating

animus.” (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J.,

concurring) (internal quotations omitted)).

Next, Plaintiffs point to several statements allegedly made by MNPD spokesperson Don

Aaron to local newspapers in 2006 and 2007. Aaron was quoted as stating, “If you have two

candidates that are essentially equal and believe that both would make very good supervisors, and

if your choice is to make the department more diverse, you would probably elect to include diversity

in your choice.” Aaron was also quoted as saying, “The goal of this police department is to mirror

the population of the city to the greatest extent possible . . . . When presented with the opportunity

to promote bright, qualified minority candidates, you always give those persons consideration.”

The district court disregarded these statements as inadmissible hearsay. Plaintiff contends

that the district court’s evidentiary ruling was incorrect because Aaron’s comments should have been

considered a statement by a party-opponent. See Fed. R. Evid 801(d)(2)(A) (a “party’s own

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statement in either an individual or a representative capacity” is not hearsay if “offered [against] the

party”).

We need not consider the district court’s evidentiary ruling, because even if admissible,

Aaron’s statements are not direct evidence of discrimination. Aaron’s first statement—answering

a hypothetical question about “equally qualified candidates”—requires an inference because the

statement did not refer to this employment decision.

Nor is Aaron’s second comment direct evidence of discrimination, because it would require

us to ignore the equally available inference that the department was simply aware of a lack of

minorities within its upper ranks. As we have held, however, statements reflecting a desire to

improve diversity do not equate to direct evidence of unlawful discrimination. See Plumb v. Potter,

212 F. App’x 472, 477–78 (6th Cir. 2007) (“[A] jury could find that [the employer] believed it was

good to have more women working at the [company], yet still conclude that [the decisionmaker] did

not let that personal belief interfere with her decision whether or not to promote a woman over [the

plaintiff].”)

Finally, the statements allegedly made by Commander Nash, Deputy Chief Pike, and HR

representative Sinor do not constitute evidence of direct discrimination because there is no evidence

to show that these individuals were decisionmakers in the promotion process. See Smith, 220 F.3d

at 759–60. Plaintiffs’ attempt to raise a cat’s-paw argument about these individuals is also

ineffective, because it would require us to draw inferences that are inappropriate under direct

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discrimination analysis.4 See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th

Cir. 1998). Accordingly, Plaintiffs have failed to produce direct evidence of reverse discrimination.

2. Circumstantial Evidence of Reverse Discrimination

Because Plaintiffs cannot prove reverse discrimination by way of direct evidence, they must

rely on circumstantial evidence. This Circuit applies a modified version of the McDonnell Douglas

framework in reverse discrimination cases. See Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir.

2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Claims of reverse

employment discrimination brought under the THRA also apply our modified McDonnell Douglas

standard. See, e.g., Newman v. FedEx, 266 F.3d 401, 406 (6th Cir. 2001).

First, Plaintiffs must present a prima facie case for reverse discrimination showing: (1) that

the Defendant “is that unusual employer who discriminates against the majority;” (2) that they were

qualified for the position in question; (3) that they suffered an adverse employment action when they

were not promoted; and (4) that they were treated differently than other similarly situated employees.

Arendale v. City of Memphis, 519 F.3d 587, 603–04 (6th Cir. 2008). If Plaintiffs make out their

prima facie case, the burden shifts to Defendants to show a legitimate, non-discriminatory reason

behind their actions. Id. at 603. Once Defendants meet their burden, Plaintiffs must prove that the

stated explanation was a pretext for discrimination. Id.

4
The “rubber-stamp” or “cat’s paw” theory of liability involves a situation where a supervisor
is influenced by another individual who was motivated by an impermissible bias. It is more
appropriately dealt with in circumstantial evidence review. See Arendale, 519 F.3d at 604.

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a. Background Circumstances

Establishing the first prong of the prima facie case in a reverse discrimination claim requires

Plaintiffs to show that Defendants are that “unusual employer who discriminates against the

majority.” Id. at 603–04. This requirement is not onerous, and can be met through a variety of

means, such as statistical evidence; employment policies demonstrating a history of unlawful racial

considerations; evidence that the person responsible for the employment decision was a minority;

or general evidence of ongoing racial tension in the workplace. See Treadwell v. Am. Airlines, 447

F. App’x 676, 678 (6th Cir. 2011) (citing cases). Indeed, “the mere fact that a racial minority took

an adverse action” against the employee is often sufficient to satisfy the background circumstances

requirement. Leavey v. City of Detroit, 467 F. App’x 420, 425 (6th Cir. 2012) (citing Arendale, 529

F.3d at 603).

Plaintiffs allege that a background of reverse discrimination may be inferred from: (1) the

2003 Anderson memo; (2) the statements made by Commander Nash, Chief Pike, and HR

representative Sinor in the meetings Plaintiffs requested after being passed over for promotion; (3)

the fact that Serpas was “chief for a political entity” and motivated to “appease the population of

Nashville”; and (4) two unrelated discrimination cases brought against Metro. The district court

found this evidence insufficient to prove background circumstances, because there was no evidence

to conclude that Defendants’ actually unlawfully considered race or gender as factors in the making

specific employment decisions. Johnson III, 2010 WL 3342211, at *16.

In so reasoning, the district court went too far. The background circumstances element only

requires a plaintiff to “support the suspicion that the defendant is that unusual employer who

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discriminates against the majority;” a plaintiff need not prove that the employer’s actions actually

were illegally motivated. Boger v. Wayne Cnty., 950 F.2d 316, 324–25 (6th Cir. 1991) (emphasis

added). Requiring Plaintiffs to show actual discrimination at this stage conflates the background

circumstances element with the remainder of McDonnell Douglas’ burden-shifting approach. See

Treadwell, 447 F. App’x at 679 (noting that requiring a plaintiff to produce both “the foreground and

background evidence to reach a jury” incorrectly collapses the background circumstances prong into

McDonnell Douglas’ other elements).

As is required on summary judgment, we must draw disputed inferences in Plaintiffs’ favor

and conclude that Plaintiffs have met the background circumstances element. Plaintiffs supplied

sufficient evidence to raise at least a material issue of fact that there was ongoing racial tension

within the MNPD, and particularly, tension surrounding the manner in which promotions were being

awarded within the department’s ranks. See, e.g., id. at 678; Boger, 950 F.2d at 324–25; McCloud

v. Testa, 97 F.3d 1536, 1549 (6th Cir. 1996); Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249,

256 (6th Cir. 2002). Plaintiffs presented depositions by persons at all levels of MNPD’s hierarchy

who testified that the department was interested in promoting diversity and that it was acutely

conscious of its long history of racial and gender imbalance.5 And while the district court was correct

5
We note the same figure that the consulting company found troubling: that, as of 2003, there
were a total of 29 African-American supervisors out of 1,300 sworn MNPD officers. Certainly such
a statistic could prompt Defendants to be concerned about the need for greater diversity in the
department’s ranks.
To a lesser extent, we also take judicial notice of the newspaper articles reflecting
dissatisfaction by both minority and majority officers with MNPD’s promotions processes. See
“Officers Say Metro Police Promotions Policy Unfair,” The Tennessean, Apr. 2, 2007; “Racial
Tensions Escalate—Black & White Cops Feud over Promotions, Nashville Scene, Oct. 2, 2003.

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that such a focus may only reflect a legitimate desire to comply with equal opportunity requirements,

it also presents a context sufficient to meet the background circumstances element.

b. Qualifications and Similarly Situated Candidates

As to the remaining prongs of Plaintiffs’ prima facie case, Plaintiffs suffered an adverse

employment decision when they were passed over for promotion, but Defendants dispute whether

Plaintiffs were qualified for promotion and similarly situated to the promoted candidates. These

prongs touch on essentially the same issues, so we address them together.

Whether Plaintiffs were qualified for promotion and similarly situated to the promoted

candidates depends partly upon how we compare the candidates. The district court disregarded the

surveys in deciding the qualification issue, but considered them in its similarly situated analysis. We

agree with this approach.

Under the new scoring procedure, candidates who received the highest scores were placed

on the eligibility roster in alphabetical order without revealing the composite scores. We agree with

the district court that this procedure meant that all candidates whose names appeared on the roster

were deemed qualified for promotion. Johnson III, 2010 WL 3342211, at *3. Hence, we need not

take into account the candidates’ survey scores when considering the qualification element, and we

conclude that Plaintiffs have met their burden to prove that they were qualified for promotion.

By contrast, a candidate’s score is relevant in deciding whether Plaintiffs were similarly

situated to the officers that were selected for promotion. Inclusion on the eligibility roster only

qualified a candidate for promotion, but did not guarantee it. Because the chief had the discretion

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to choose among candidates, a candidate could be passed over for promotion entirely or promoted

later than a comparatively lower-scored candidate.

Accordingly, the revised system established a two-stage promotions process. Scoring well

on the written and assessment tests was not a guaranteed basis for promotion; it only qualified a

candidate for promotion. At the second stage, the chief held the sole discretion to choose among

candidates. The system did not limit the considerations the chief could take into account, which

could conceivably include a wide variety of qualities, including: education, training, length of

service, readiness, ability to lead, disciplinary infractions, or a host of other factors. Any of these

factors might distinguish Plaintiffs from their promoted peers and render Plaintiffs not similarly

situated.

We have explained that in failure-to-promote cases we only require a plaintiff to show that

he possesses “similar qualifications” to the employee who received the promotion. Provenzano v.

LCI Holdings, Inc., 663 F.3d 806, 814 (6th Cir. 2011). During the prima facie stage, our inquiry is

not finely distinguished, given that it “is not realistic from a human standpoint” to expect the plaintiff

to prove that he has identical qualifications to the chosen candidate. Id. Rather, we perform a “more

searching evaluation of the relative qualifications of the two candidates” when examining pretext.

Id. at 816. However, even if we granted leniency to Plaintiffs at the prima facie stage, they still have

made no effort whatsoever to show that they were similarly situated to the chosen candidates on even

the most basic level. Plaintiffs utter failure to address the similarly situated element fatally undercuts

their prima facie case, as well as their argument for pretext.

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 Nos. 10-6102/11-5174

Moreover and as noted above, the survey results are appropriately considered when

evaluating the similarly situated element. In the instant case, the survey results render Plaintiffs

dissimilar from the candidates who were selected for promotion. Serpas ordered the surveys in an

effort to capture the supervisors’ opinions as to which candidates were most suited for promotion.

These opinions were considered, along with each candidate’s personnel record and overall

qualifications, when Serpas made his promotions decisions. And while Serpas did not take notes

about his decisions, he testified that he did draw at least one clear line in his reasoning; he did not

promote any candidate whose rollup score fell below a “2.0”

In fact, no candidate was promoted who fell below that line, and Plaintiffs concede that they

scored well below this threshold. As such, they were not similarly situated to those candidates

chosen for promotion. See Gaffney v. Potter, 345 F. App’x 991, 993 (6th Cir. 2009) (holding that

differences in performance ratings render two employees not similarly situated). Accordingly,

Plaintiffs’ prima facie case fails because they have failed to show that they were similarly situated

to the promoted candidates.

c. Pretext

Although Plaintiffs have not met their prima facie burden, we note that similar deficiencies

prevent them from demonstrating pretext.

Serpas explained that he did not select Plaintiffs for promotion because of their poor survey

results. He testified that the scores demonstrated that those who were familiar with Plaintiffs’

qualifications did not believe they would be as “successful” or “ready” for promotion in comparison

to the other candidates. Serpas averred that he did not take race or gender into consideration when

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deciding whom to promote. Thus, Defendants have provided a permissible, non-discriminatory basis

for the adverse employment decision, and Plaintiffs bear the burden of producing a triable issue of

fact that the basis was a pretext for reverse discrimination.

We have explained that a closer comparison of candidates is appropriate when the parties

dispute whether an employee was chosen for promotion based on qualifications versus

discriminatory animus. Provenzano, 663 F.3d at 816. In conducting our evaluation, we do not act

as a “‘super personnel department,’ overseeing and second guessing employers’ business decisions,”

Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 626 (6th Cir. 2006), but rather simply compare

characteristics such as “[d]ifferences in job title, responsibilities, experience, and work record,” in

order to make an informed determination about whether an employment decision was based on

pretext, Leadbetter, 385 F.3d at 691.

As noted above, however, Plaintiffs have provided the Court with none of the information

required to draw an informed comparison. Rather, the only pertinent information we have before

us shows that both minority and majority candidates with better survey scores were promoted ahead

of Plaintiffs. Likewise, candidates with lower survey scores of both races and genders were not

selected for promotion. These facts render fatal Plaintiffs’ claims of pretext.

Finally, we note that the move to the new promotions procedure was apparently based on a

variety of factors. Plaintiffs concede that the test-based promotions method was criticized for a

number reasons—one of which was the disadvantage it imposed on minority candidates—but also

for other reasons that were not based on race or gender. The MNPD, its officers, and the consulting

company that worked on the updated procedure all agreed that the old method did not take into

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account other factors that critically affected the candidate’s suitability for promotion—including

length of service, educational background and training, and the opinions of the candidates’

supervisors. The fact that the survey instructions mentioned these permissible factors, and not those

impermissible factors of race or gender, also undermines Plaintiffs’ claims for pretext.

D. Disparate Impact Claims

We turn next to Plaintiffs’ claims of disparate impact brought under Title VII. “Disparate

impact causes of action penalize employment practices that are ‘fair in form but discriminatory in

operation.’” Phillips v. Cohen, 400 F.3d at 388, 397 (6th Cir. 2005) (quoting Griggs, 401 U.S. at

431). “Thus, disparate impact analysis is intended to make sure that employers do not use ‘neutral’

decision-making mechanisms that in fact work to eliminate a greater portion of otherwise-qualified

protected group members than they do members of other groups.” Id. Accordingly, a disparate

impact claim does not require a showing of intent to discriminate. Id. Instead, the plaintiff must

allege that a specific employment practice had an adverse effect on a group of employees, despite

its facial neutrality. Id.

Disparate impact analysis requires the Plaintiff to identify—with specificity—the particular

procedure having an adverse effect. Dunlap v. TVA, 519 F.3d 626, 629 (6th Cir. 2008). A three-part

burden-shifting test is then used to examine a disparate impact claim: (1) the plaintiff must establish

a prima facie case for discrimination; (2) the employer may then show that the challenged procedure

is justified by “business necessity”; and (3) the plaintiff can rebut the employer’s justification by

showing that other tests or selection protocols would serve the employer’s interest without creating

the undesirable discriminatory effect. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).

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1. Procedural Posture

Before turning to the merits of Plaintiffs’ disparate impact claim, we must consider its

procedural posture and Plaintiffs’ argument that the district court improperly denied them leave to

amend in order to supplement their disparate impact arguments.

In the instant case, there are three components of the new promotions procedure that

Plaintiffs could have alleged caused a disparate impact: (1) the change from the test-based

promotions procedure to the eligibility roster procedure; (2) Serpas’ unilateral discretion to select

candidates for promotion off the roster based on unspecified criteria; and (3) the introduction of the

supervisors’ subjective opinions by way of the survey results. Of these, and as further explained

below, Plaintiffs only alleged the first of the three had a disparate impact.

At the close of discovery, Plaintiffs moved to amend their complaint, in order to allege “all

facts as known to the plaintiffs as of today with regard to these charges.” The additional paragraphs

detailed information Plaintiffs learned during the discovery process, including additional details

about how the survey process was implemented. However, the motion to amend did not seek to add

any additional charges of disparate impact beyond Plaintiffs’ original challenge to the eligibility

roster procedure.

Accordingly, Plaintiffs never sought to add a claim that Serpas’ discretion caused a disparate

impact. Likewise, Plaintiffs never claimed that the supervisor surveys caused a disparate impact.

Plaintiffs however, did allege that these aspects of the promotions procedure caused a disparate

impact in their response to Defendants’ motion to dismiss. Plaintiffs’ arguments, however, went

beyond the strict allegations raised in their proposed amended complaint—that the “sliding-band”

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procedure caused a disparate impact—and went on to say that “the Captain’s surveys and the input

from Serpas caused a disparate impact on the promotions favoring minorities over white males.”

The district court denied Plaintiffs’ motion to amend, noting that the amendment deadline

passed two months prior; that Plaintiffs had requested extensions on several other deadlines, but not

on the amendment deadline; and that Plaintiffs’ filing violated Federal Rule of Civil Procedure

16(b)(4) (requiring good cause to modify a scheduling order) and Local Rule 7.01(a) (requiring the

filing of an accompanying memorandum of law where a motion “may require the resolution of an

issue of law”). Finally, the court commented that Plaintiffs had already amended their claims

multiple times and that the latest reason given—“to allege all facts as known to the plaintiffs as of

today with regard to these charges”—was “insufficient to justify a fourth amendment.”

Shortly thereafter, the district court granted Defendants’ motion to dismiss the disparate

impact claim. The district court noted the pleading errors described above and commented that,

while “plaintiffs [] somewhat convincingly argue[d]” a disparate impact claim related to the surveys,

the argument could not be considered because Plaintiffs failed to raise it in their complaint. See

Johnson II, 2008 WL 3163531, at *6 (citing Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir.

2001)).

2. Denial of Leave to Amend

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a court may freely grant

leave to amend a pleading when justice so requires, in order to make certain that a case is tried on

its merits “rather than [on] the technicalities of the pleadings.” Moore v. City of Paducah, 790 F.2d

557, 559 (6th Cir. 1986). “In deciding whether to grant a motion to amend, courts should consider

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undue delay in filing, lack of notice to the opposing party, and futility of amendment.” Brumbalough

v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005). Unless leave was denied on the

basis of futility, this Court reviews the district court’s decision for abuse of discretion. Ziegler v.

Aukerman, 512 F.3d 777, 786 (6th Cir. 2008).

Rule 15 provides that leave to amend “shall be freely given when justice so requires.” Fed.

R. Civ. P. 15(a). In the absence of reasons such as those listed above, leave should generally be

granted. Forman v. Davis, 371 U.S. 178 (1962). Nevertheless, a district court retains its discretion

on such matters, and provided that the court announces a clear reason for its decision, this Court will

generally defer to its reasoning. Id.

Rule 15 is augmented by Rule 16, which states that the generally wide latitude to amend may

be restricted by the court’s other scheduling orders. See Fed. R. Civ. P. 16(b). Rule 16 requires that

a party seeking to amend outside a scheduling order may do so only on a showing of “good cause.”

This limitation is “designed to ensure that ‘at some point both the parties and the pleadings will be

fixed.’” Leary, 349 F.3d at 906. In balancing Rules 15 and 16, this Court considers the movant’s

“diligence in attempting to meet the case management order’s deadlines” and “whether the opposing

party will suffer prejudice by virtue of the amendment.” Id.

Plaintiffs contend that the district court abused its discretion when it refused to grant their

motion to amend. They contend that the district court unfairly denied the motion solely on

procedural technicalities and that, by doing so, it denied them the opportunity to allege facts that

“could not have been discovered [] without having conducted written discovery.” Given that the

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district court perceived some merit in a disparate impact claim based on the surveys, Plaintiffs

contend the court’s refusal to allow amendment was in error.

We disagree. Plaintiffs have made no real attempt, either before the district court or before

us now, to argue that “good cause” supported an amendment sought over two months after the

deadline in the court’s scheduling orders. Plaintiffs simply perfunctorily allege that they could not

have discovered the facts required to support their claims before written discovery was conducted.

However, Plaintiffs never state with any specificity when the evidence was received or why they

could not have met or sought an extension on the district court’s original deadline.

We note that the disparate impact claims Plaintiffs now put forth are largely based on

information that Plaintiffs appear to have known from the outset of this suit. For instance, as

Plaintiffs’ own affidavits indicate, they knew that Serpas had total discretion to select candidates for

promotions off the eligibility roster, and they knew, or at least discovered shortly after the disputed

promotions were announced, that an anonymous supervisor survey had been conducted.

Accordingly, Plaintiffs had access to the basic facts required to allege their new disparate impact

claims, even if they lacked certain specifics.

Moreover, even if we were to consider the new evidence Plaintiffs sought to add by way of

an amended complaint, the fact remains that Plaintiffs failed to expand the legal bases for their

disparate impact claims. A close reading of the documents reveals that the district court was correct.

Plaintiffs only properly alleged a disparate impact claim based on the eligibility roster method.

Although Plaintiffs’ response to the motion to dismiss expanded their disparate impact claims, the

district court was limited, as are we, to the facts and legal claims as raised in the pleadings. See

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Moore’s Federal Practice § 12.34. (“The court may not . . . take into account additional facts

asserted in a memorandum opposing the motion to dismiss, because such memoranda do not

constitute pleadings under Rule 7(a).”). Accordingly, the district court did not abuse its discretion

in denying Plaintiffs leave to amend.

3. Merits Analysis

Thus, we are left only to consider the disparate impact claim that was properly before the

court—whether the move to the eligibility roster imposed a disparate impact on non-minority, male

candidates. The district court rejected the challenge, noting that the complaint “alleged that MNPD

ignored the objective criteria it gathered from the written examination and the assessment because

of an intent to discriminate.” Johnson II, 2008 WL 3163531, at *6 (emphasis added). The district

court reasoned that this type of allegation was more akin to a disparate treatment claim than it was

to a disparate impact claim. Id. We agree.

Finally, we briefly point out Ricci v. DeStefano, 557 U.S. 557 (2009), a case issued by the

Supreme Court about a year after the district court dismissed Plaintiffs’ disparate impact claim. In

Ricci, the Supreme Court found that the city of New Haven, Connecticut imposed a disparate impact

on certain Caucasian firefighters when it refused to certify examination results used for making

promotions when the results failed to produce any minority candidates. The fact that the City

changed its procedures during the middle of the promotions process was a key factor in the Supreme

Court’s decision:

[Once a promotion process is established] and employers make clear their selection
criteria, they may not then invalidate the test results, thus upsetting an employee’s
legitimate expectation not to be judged on the basis of race. Doing so, absent a
strong basis in evidence of an impermissible disparate impact, amounts to the sort of

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racial preference that Congress disclaims, and is antithetical to the notice of a
workplace where individuals are guaranteed equal opportunity regardless of race.

Id. at 585.

To be sure, guidance from Ricci might have helped Plaintiffs plead their allegations with

requisite specificity, had that case been available to them. However, the present case remains easily

distinguishable from Ricci, in that there is no evidence to show that Defendants disregarded any valid

scores. And while Plaintiffs might have argued that their legitimate expectations were upset by the

delayed introduction of the supervisor surveys, as explained above, they failed to properly allege this

argument in their complaint.6 Accordingly, we affirm the district court’s decision dismissing

Plaintiffs’ disparate impact claim.

III. Tennessee Human Rights Act

Citing Gossett v. Tractor Supply Co., 320 S.W.3d 777, 779 (Tenn. 2010), Plaintiffs next

argue that the district court applied an incorrect summary judgment standard to their claims brought

under the THRA. In Gossett, the Tennessee Supreme Court reasoned that it was inappropriate to use

the McDonnell Douglas framework to decide summary judgment motions for claims brought under

the THRA, inasmuch as the McDonnell Douglas framework was incompatible with Tennessee’s own

summary judgment jurisprudence. However, shortly thereafter, the Tennessee legislature abrogated

6
There remains an outstanding factual dispute as to when the supervisor surveys were
introduced into the promotions process. Plaintiffs allege that the surveys were introduced during a
delay that followed the announcement of the eligibility rosters; Serpas testified in his deposition,
however, that he made the decision to conduct the surveys when the new promotions procedure was
announced.

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 Nos. 10-6102/11-5174

Gossett by statute. See Tenn. Code Ann. § 4-21-311(e); see also Bobo v. UPS, 665 F.3d 741, 757

(6th Cir. 2012). Plaintiffs’ argument on this point is therefore moot.

IV. Costs

The district court awarded Metro the costs of defending both Serpas and Metro against this

lawsuit. On appeal, Plaintiffs raise two challenges to this decision. First, Plaintiffs argue that,

regardless of the fact that Metro actually paid for Serpas’ costs and legal fees, Serpas should have

filed a separate bill of costs. Second, they argue that the district court did not carefully scrutinize

whether the cost of a second set of transcripts for Serpas’ attorneys was truly “necessary.”

This Court reviews a district court’s award of attorneys costs for abuse of discretion.

Singleton v. Smith, 241 F.3d 534, 538 (6th Cir. 2001). Awards decisions are “fact-intensive” and

a trial court’s determination of those facts is entitled to substantial deference. See Imwalle v.

Reliance Med. Prods., 515 F.3d 531, 551 (6th Cir. 2008). Applying this standard, neither of

Plaintiffs’ arguments have merit.

Federal Rule of Civil Procedure 54(d)(1) provides that “costs other than attorney’s fees []

should be allowed to the prevailing party.” The presumption in favor of awarding costs may only

be reversed upon a “heavy showing” that the court abused its discretion. Baji v. N.E. Reg’l Bd. of

Dental Examiners, Inc., 3 F. App’x 352, 360 (6th Cir. 2001) (citing White & White, Inc. v. Am. Hosp.

Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986)). In order to award costs to a prevailing party, the

court must determine that:

the expenses are allowable cost items and that the amounts are reasonable and
necessary. As long as statutory authority exists for a particular item to be taxed as
a cost, [the court] shall not overturn a district court’s determination that the cost is
reasonable and necessary, absent a clear abuse of discretion. Thus, we shall review

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carefully whether an expense is recoverable, but once we determine that it is, we
defer to the district court, which is in the best position to determine whether the cost
is recoverable.

Baker v. First Tenn. Bank Nat’l Assoc., 142 F.3d 431 (6th Cir. 1998) (table) (citing Northbrook

Excess & Surplus Ins. Co. v. Proctor & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991)).

Rule 54(d) provides that costs “should be allowed to the prevailing party,” but it does not

specify how to file a bill of costs. The Middle District of Tennessee’s Local Rule 54.01 is somewhat

more specific and requires that “a cost bill, with supporting documentation, shall be filed by the

prevailing party.” (emphasis added). However, this rule does not provide that each prevailing party

must file separately, and we have found no cases requiring that. Lastly, we note that Plaintiffs did

not cite to Local Rule 54.01 before the district court. Accordingly, the district court did not abuse

its discretion.

Plaintiffs next argue that the second set of transcripts was not reasonable or necessary, and

they fault the district court for failing to carefully scrutinize whether Serpas’ attorneys had an

individual need for the transcripts. This claim is meritless. The depositions in question—those of

Chief Serpas, Deputy Chiefs Pike and Anderson, and Eric Cardinal—were at the core of Plaintiffs’

claims of reverse discrimination against Serpas and critical to his defense against those charges.

Accordingly, the deposition transcripts were necessary and the award of costs was appropriate.

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s judgment in all respects.

37