White v. Baxter Healthcare Corp.

RONALD LEE GILMAN, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that White has produced sufficient evidence to survive summary judgment on his performance-review claim and I agree with the majority’s articulation of the appropriate standard for evaluating Title VII mixed-motive claims that are raised under 42 U.S.C. § 2000(e)-2(m). But I respectfully disagree with the majority opinion to the extent that it permits White’s failure-to-promote claim to proceed to trial. In particular, I do not believe that White has raised a genuine issue of material fact as to whether Baxter’s proffered reasons for promoting Freed instead of White were pretextual. I will first explain why I reach this conclusion with respect to White’s failure-to-promote claim, and will then pro*407ceed to make several comments about the mixed-motive claim.

A. Failure-to-promote claim

The majority acknowledges, and I agree, that (1) White established a prima facie case of race discrimination on his failure-to-promote claim, and (2) Baxter’s proffered reason for failing to promote White (i.e., that Freed was more qualified and better suited to the position) is “facially legitimate and non-diseriminatory.” Maj. Op. at 391-93. I disagree, however, with the majority’s conclusion that White sustained his burden of “producing] sufficient evidence from which the jury may reasonably reject” Baxter’s explanation for promoting Freed instead of White. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.1994).

To carry his burden of demonstrating that Baxter’s proffered explanation for promoting Freed was merely a pretext designed to mask discrimination, White must show that this “nondiscriminatory reason: (1) had no basis in fact, (2) did not actually motivate defendant’s conduct, or (3) was insufficient to warrant the challenged conduct.” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 258 (6th Cir. 2002). White insists that the district court erred in determining that he had not produced sufficient evidence to permit a jury to find that Baxter’s justification for promoting Freed was pretextual. He claims that Baxter’s proffered reason must be pretextual because “he was easily the most qualified candidate for the management position and should have received the position.” In the alternative, he contends that, at a minimum, the question of pretext should be submitted to a jury. He makes three specific arguments in support of his position: (1) that Freed had never actually sold Baxter’s proprietary products, while White had seven years of sales experience and a “sterling sales record,” (2) that Baxter overstated Freed’s management experience because during her interview she described an incident in which she “admittedly feared confronting” a subordinate employee about his chronic tardiness, and (3) that White was the only candidate who had a master’s degree.

In response to White’s first argument, uncontroverted evidence in the record shows that although Freed did not have experience selling Baxter’s proprietary products, she did have extensive prior experience selling proprietary pharmaceuticals for other companies. Freed also attended all of the training classes on Baxter’s proprietary products, designed and implemented sales-training programs, and taught new sale representatives about the proprietary products. These undisputed facts, combined with evidence in the record that Freed actually discussed ideas for improving sales in the relevant region during her interview for the position, casts considerable doubt on the majority’s unsupported statement that she, “in all likelihood, was less familiar than was White with the specific challenges faced by the ACCO division in promoting Baxter’s products.” Maj. Op. at 395.

The majority also states that White’s master’s degree and prior management experience could lead a jury to conclude that Baxter’s legitimate nondiscriminatory reason for promoting Freed instead of White was pretextual. Maj. Op. at 393-94. To the contrary, I do not believe that the evidence on which White and the majority rely in support of this conclusion creates a genuine issue of material fact as to whether Baxter’s assertion that Freed was better qualified for the Regional Manager position “has no basis in fact, did not actually motivate Baxter’s decision, or is not *408sufficient to explain its hiring choice.” Maj. Op. at 395.

The recognition that White had more experience selling Baxter’s products and has a master’s degree in business management does not necessarily show either that Freed was less qualified than White or that Baxter’s decision was not actually based on a reasonable determination of the candidates’ relative qualifications. Baxter in fact put forth an abundance of evidence showing not only that Freed was well qualified for the position, but also that the three interviewers unanimously believed that she better displayed the qualities of a good manager. The interviewers specifically testified that they had considered Freed’s lack of experience in selling Baxter’s products, but believed that this deficit was outweighed by her general sales background, her participation in numerous training classes, and her experience in teaching sales representatives about the products.

White’s contention that he was more qualified than the other candidates because he has a master’s degree is likewise unpersuasive, particularly in light of the interviewers’ testimony that they found White’s personality to be off-putting and incompatible with the type of interactions that a manager would be required to have with sales representatives. Although the majority is surely correct that “any evaluation of White’s interview performance is an inherently subjective determination,” Maj. Op. at 394, such determinations are also inevitably a part of the hiring and promotion decisions that employers must make in the course of business. To the extent that these subjective determinations may be “easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision,” id., such a concern has no place in the present case, where White himself concedes that he has no reason to believe that any of the interviewers held any discriminatory animus against African-Americans. This concession is all the more significant considering the uncontroverted fact that each interviewer rated Freed first and White last among the five candidates interviewed for the managerial position.

The assertion by White that the interviewers could not have believed that Freed was qualified because she admitted that she had once been nervous about confronting a subordinate is simply without merit. Not only does such evidence fail to demonstrate that Freed was unqualified for the management position (especially given that Freed went on to explain that she had effectively dealt with the employee in question), but the anecdote does nothing to undermine Baxter’s argument that the interviewers acted reasonably in concluding that Freed had substantially more management experience than White.

In short, I do not believe that White has produced any evidence showing that Baxter’s choice of Freed over White was anything other than a “reasonably informed and considered” business decision. See Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). I am also troubled by the majority’s conclusion that “White’s arguably superior qualifications ..., in and of itself, could lead a jury to doubt the justifications given for Baxter’s hiring decision.” Maj. Op. at 394. Such a holding ignores this court’s decision in Smith and goes a long way towards completely eviscerating the business-judgment rule articulated in that case and reaffirmed in Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576-77 (6th Cir.2003) (en banc). This court in Smith explained that “the key inquiry” in determining whether an employer’s proffered good-faith business decision should be given credence is “whether the employer made a reasonably informed *409and considered decision before taking an adverse employment action.” 155 F.3d at 807; see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (permitting an employee to establish pretext “by showing that the employer’s proffered explanation is unworthy of credence”).

Contrary to the majority’s mischarac-terization of my analysis, I do not think for a minute that we should “unquestionably accept the employer’s own self-serving claim that the decision resulted from an exercise of ‘reasonable business judgment.’ ” Maj. Op. at 393 n. 6. Rather, the test articulated in Smith requires an independent evaluation of whether the employer’s determination was in fact reasonable. See Wexler, 317 F.3d at 577 (concluding that genuine issues of material fact precluded a finding that the employer’s proffered reason for demoting Wexler was reasonable). But our independent evaluation of the reasonableness of an employer’s business judgment does not preclude us from ever finding that an employer’s proffered justification is reasonable as a matter of law. See Smith, 155 F.3d at 808-09 (affirming the grant of summary judgment in favor of the employer where the employee was unable to raise a genuine issue of material fact to dispute the employer’s reasonable reliance on the facts before it when making the decision to terminate the employee).

In the present case, the fact that White has adduced evidence showing that he and Freed were both qualified for the Regional Manager position does not create a genuine issue of material fact as to whether Baxter’s decision to promote Freed instead of White was unreasonable or ill-informed. See Vredevelt v. GEO Group, Inc., 145 Fed.Appx. 122, 131 (6th Cir.2005) (noting that the plaintiffs allegation that she was more qualified than the male candidate the company hired was unpersuasive because “[a]t best, the comparison in this case is between two qualified employees”).

I also believe that the majority’s reliance on Wexler is misplaced in light of the factual distinctions between that case and the one before us. In Wexler, the employer claimed that Wexler’s demotion was based on the store’s declining sales under his management. 317 F.3d at 576. This court concluded that application of the business-judgment rule was inappropriate in that case because genuine issues of material fact existed as to the reasonableness of the employer’s decision to fault Wexler for the company’s declining sales. In particular, this court noted that (1) the company was aware that factors beyond Wexler’s control were contributing to the declining revenue, (2) the supervisors who made the decision to demote Wexler had made adverse age-related statements about him, and (3) the company retained one of the employees who eventually replaced Wexler as store manager despite the fact that sales continued to decline under that employee’s management. Id. at 577.

The recognition by Wexler that courts may consider “the reasonableness of an employer’s decision” at the pretext stage “to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation,” id. at 576, is of no help to White in the present case. Here the record clearly shows that the choice of Freed over White was based on a reasonable business judgment that Freed was the most qualified of the five candidates for the Regional Manager position. See Smith, 155 F.3d at 807 (permitting employers to make business judgments where those decisions are “reasonably informed and considered”).

I believe, in sum, that this court’s precedents require more recognition of such *410business judgments than the majority’s decision permits, and that White failed to produce sufficient evidence for a jury to conclude that Baxter’s proffered reasons for hiring Freed over White were pretex-tual. For these reasons, I would affirm the district court’s grant of summary judgment as to White’s failure-to-promote claim. I therefore respectfully dissent from the majority’s resolution of this issue.

B. White’s downgraded-performance-evaluation claim and the proper summary-judgment framework for mixed-motive claims

Although I agree with the majority’s persuasive and well-reasoned discussion of the appropriate framework for evaluating mixed-motive claims at the summary-judgment stage and concur in the result reached in that portion of the majority opinion, I write separately to comment on the likely effect of the new framework and its application to the specific circumstances of the case before us. In particular, I am wary of the majority’s statement that the standard we announce today “will typically require sending the case to the jury.” Maj. Op. at 402. In my view, the standard laid out in the majority opinion must be applied with a view towards the more general principle that summary judgment serves an important screening function in our judicial system. See Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“[SJummary judgment serves as the ultimate screen to weed out truly insubstantial lawsuits prior to trial.”). District courts reviewing motions for summary judgment on a mixed-motive claim, therefore, must always undertake that analysis with Rule 56 of the Federal Rules of Civil Procedure in mind, which directs courts to grant such a motion where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Contrary to the majority’s suggestion, I believe that the articulated standard leaves ample room for courts to determine that no reasonable jury could conclude that a protected characteristic was a motivating factor in an adverse employment decision.

I also believe that the evidence favoring White in this case is quite weak and just barely passes muster under the new standard that we have articulated. Indeed, the key evidence in the record that supports White’s performance-review claim is the collection of remarks allegedly made by Phillips, which — as the district court properly found — seem to evince a racially discriminatory animus. Those alleged remarks, combined with the factual dispute over which criteria should have governed the evaluation of White’s performance (the Gold email or the 2004 PMO grid), could lead a jury to infer that race was at least a motivating factor when Phillips chose to partially follow the more stringent requirements of the Gold email.

That inference is not dispelled by any showing in the record that Phillips applied the Gold email to any nonprotected employees, which would render unreasonable the conclusion that Phillips was motivated by race in determining how to properly evaluate White’s performance. See Maj. Op. at 401 (noting that “the court should also consider evidence presented by the employer that the protected characteristic was not a motivating factor for its employment decision”) (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 720 (6th Cir.2006) (Moore, J., concurring)). Nevertheless, in the absence of Phillips’s alleged racist remarks, I would have concluded that there was no basis for a jury to find that race was “a motivating factor” in the downgraded performance review received by White.

*411White’s claim would certainly fail under the more stringent McDonnell Douglas framework used to evaluate claims brought under Title VII’s general antidiscrimi-nation provision, 42 U.S.C. § 2000e-2(a)(1), if for no other reason than that he has failed to show that any similarly situated employee was treated more favorably than he was with respect to performance evaluations. So although I concur in the majority’s explanation of why this type of evidence should not be required to survive summary judgment on a mixed-motive claim, there is no question that White would have a much stronger case to present to a jury if there was such evidence in the record. I therefore find myself barely persuaded that a genuine issue of material fact exists as to whether race was a motivating factor in White’s performance review, but I would not be at all surprised if a jury ultimately finds to the contrary.

Finally, I would note that the remedy-limitation provision contained in 42 U.S.C. § 2000e-5(g)(2)(B) may prove to be particularly important in the instant case. That provision provides an employer with a “limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney’s fees and costs.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 94, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). In the present case, Baxter may well be able to show that White would have received a downgraded performance review even in the absence of the impermissible consideration of race, in which case it could successfully assert the § 2000e-5(g)(2)(B) affirmative defense. See § 2000e-5(g)(2)(B) (explaining that the limitation-of-remedies provision applies where “an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor”).

The evidence in the record relating to the Gold email and White’s failure to meet his Suprane sales goals will be highly relevant to this showing. Moreover, the jury could easily conclude that Phillips “split the difference” between the criteria contained in the 2004 PMO Grid and the Gold email, giving White a more favorable review than he would have received upon a straightforward application of the criteria set forth in the Gold email. If Baxter chooses to proceed in this way and the jury finds that the company would have downgraded White’s performance review even in the absence of any impermissible consideration of White’s race, then the remedies available to White will be considerably limited. He would under such circumstances be entitled to declaratory and perhaps limited injunctive relief, and to “attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of’ the mixed-motive claim. See § 2000e-5(g)(2)(B)(i). If this is indeed the ultimate outcome, then the district court would be unable to “award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.” § 2000e5(g)(2)(B)(ii). Section 2000e-5(g)(2)(B) thus provides an important counterbalance to the relatively lenient summary-judgment standard that we announce today, and may be particularly applicable in the present case.