Leisring v. Hamilton County Clerk of Courts

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KAREN LEISRING,

Case No: 1:18-cv-698

Plaintiff, Bowman, M.J.

v.

HAMILTON COUNTY CLERK OF COURTS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Karen Leisring filed suit against her current employer, alleging that

Defendant(s) engaged in unlawful age discrimination when she was not selected for a

promotion. Although Plaintiff filed suit against both the Hamilton County Clerk of Courts

and the Clerk of the Hamilton County Municipal Court, the two positions are represented

by the same individual (hereinafter the “Clerk of Courts”). The Defendant Clerk has filed

a motion for summary judgment, to which Plaintiff has filed a response and the Defendant

has filed a reply. The parties have consented to the exercise of plenary jurisdiction by

the undersigned magistrate judge. See 28 U.S.C. § 636(c). For the following reasons,

Defendant’s motion will be GRANTED.

I. Standard of Review

In a motion for summary judgment, “a court must view the facts and any inferences

that can be drawn from those facts ... in the light most favorable to the nonmoving

party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal

quotation marks omitted). “Summary judgment is only appropriate ‘if the pleadings,

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.’ ” Id. (quoting Fed. R. Civ. P.

56(c)) (internal quotation marks omitted). “Weighing of the evidence or making credibility

determinations are prohibited at summary judgment-rather, all facts must be viewed in

the light most favorable to the non-moving party.” Id.

The requirement that facts be construed in the light most favorable to the Plaintiff,

however, does not mean that the court must find a factual dispute where record evidence

contradicts Plaintiff's unsupported allegations. After a moving party has carried its initial

burden of showing that no genuine issues of material fact remain in dispute, the burden

shifts to the non-moving party to present specific facts demonstrating a genuine issue for

trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct.

1348 (1986). “The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo

Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d

859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the non-

moving party must present probative evidence that supports its complaint. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505 (1986). The non-moving party's

evidence “is to be believed, and all justifiable inferences are to be drawn in his

favor.” Id. at 255, 106 S.Ct. 2505. The court determines whether the evidence requires

submission to a jury or whether one party must prevail as a matter of law because the

issue is so one-sided. Id. at 251–52, 106 S.Ct. 2505. To demonstrate a genuine issue of

fact, the opposing party “must do more than simply show that there is some metaphysical

doubt as to the material facts.... Where the record taken as a whole could not lead a

” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).

II. Findings of Fact

Pursuant to the above standards, where any dispute exists, all reasonable

inferences have been construed in Plaintiff’s favor.

Since January 2017, the office of the Clerk of Courts has been held by Aftab

Pureval, who has been sued in his official capacity. When Pureval began his tenure in

January 2017, he was not aware of any formal policies for hiring and promotion and his

administration set out to create a new process that was professional, based on merit, and

objective. It was the administration’s goal to run a “transparent merit-based system where

jobs are posted, where employees who are seeking promotion or outside candidates are

interviewed by a panel,” and formally scored, with final decisions made “on the totality of

the application and interview process.” (Pureval Depo., Doc. 28 at PageID 807). Pureval

hired several administrators to help accomplish this goal, including the Chief of the

Municipal Division, David Sturkey.1 Sturkey oversaw two Assistant Chiefs: one civil and

one criminal. Jesslina “Jess” Isom served as the Assistant Chief of the Civil Division.

Pureval also hired Shonda Sullivan, age 33, to serve as Chief of Human

Resources.2 Sullivan played a key role in developing and implementing a new hiring and

promotion process. She provided training on how to conduct an interview to help

interviewers avoid implicit bias,3 so that “every candidate was evaluated based on their

1Immediately after Pureval was elected, Sturkey reported directly to Pureval. Over time, however,

Pureval hired a Chief Administrator, Greg Brush, and Sturkey began reporting to Brush instead. Sturkey

no longer works for the Defendant.

2Sullivan testified that she left her position with the Clerk for another organization after approximately 18

months.

3The phrase “implicit bias” has become relatively familiar in modern lexicon. Although statistical evidence

may be used to support disparate impact claims in a manner that arguably would capture some “implicit

added “scoring grids” and “introduced the concept of a panel interview, so it was multiple

perspectives” rather than the perspective of a single interviewer. (Id.)

Irrespective of the Defendant’s stated intention to create a merit-based and

impartial system, Plaintiff claims that she was denied a promotion in March 2018 based

upon age discrimination. Plaintiff began work for the Defendant in December 2012, and

had been working in the Case Management Division for four years at the time she sought

a promotion to Supervisor. She was 67 years old. A three-person panel comprised of

Sturkey, Sullivan and Isom, selected Catherine Smith, who worked in a different division

and was 28 years old, for that promotion.

The vacancy for the Supervisor position was created when the person occupying

that position, Jerry Poland, moved to the Common Pleas Division. In her position in the

Case Management Division, Plaintiff directly reported to Poland, while Poland himself

reported to Isom. Poland recommended Plaintiff for the promotion.

During the time in which Plaintiff was working under Poland, from September

through November 2017, he took a medical leave of absence. Plaintiff testified that

Sturkey identified her as the “interim supervisor” in a small group meeting held during

Poland’s absence. (Leisring Depo., Doc. 18 at PageID 290-291). Although Isom assigned

Plaintiff some of Poland’s duties during that period, Isom testified that she - and not

Plaintiff - assumed Poland’s supervisory duties during his leave of absence. In fact, Isom

previously had held the Supervisor position prior to her promotion to Assistant Chief of

bias” claims, federal employment discrimination law on the whole prohibits only conscious or intentional

discrimination.

the time that she temporarily assumed additional duties.

The Supervisor Position and the Application Process

In March 2018, Sullivan sent an internal email to advertise the Supervisor position

and elicit interest as “Phase 1” of a new three-part hiring and promotion process. The

listed job requirements included: knowledge of Municipal Civil Division operations; the

ability to provide excellent customer service and to supervise others effectively and

confidently, to engage in difficult conversations and manage different personality types,

with skills in data entry and analysis, basic computer functions, the routine work of the

Municipal Civil division and leadership, and with specified preferences for “[s]ome

Municipal Civil Division experience,” “experience working with Magistrates and/or

Judges,” and at least one year of supervisory experience. (Doc. 20-1 at PageID 528).

After receiving responses and resumes, Sullivan evaluated applicants to “remove

candidates from consideration” who did not meet the criteria. (Doc. 20 at PageID 422-

423). Sullivan based her Phase 1 screening on her “historical knowledge” of the

applicants, as well as her brief review of their resumes and email expressions of interest.

Sullivan’s notes reflect she rated Smith as a “high pass” candidate during the Phase 1

screening but rated all other applicants, including Plaintiff, as “low pass” candidates.

There is no evidence that Sullivan subsequently shared her initial “high pass” or “low

pass” assessments with Sturkey or Isom or that her preliminary assessment was

considered by anyone beyond Phase 1.

All applicants who passed Phase 1 were sent a list of written questions via email

and asked to respond as part of “Phase 2.” Following analysis of their responses, the

panel made up of Sullivan, Isom and Sturkey decided who would proceed to “Phase 3”:

the following four candidates to interview: Smith (age 28), Plaintiff (age 67), Sara Buller

(age 54), and Paula London, a candidate who Sullivan believed to be in her 50’s or 60’s.

Thus, three of the four candidates selected were in a protected age group.

In preparation for the interviews, the panel compiled a list of 18 written questions.

Sturkey testified that the questions were designed to be open-ended “to give people an

opportunity to sell themselves.” He testified that he viewed the interview performance of

the candidates as very important in the hiring decision.

[T]he way that candidates answered questions, especially in terms

of…vision and change, and professionalism and modernization of the office

were all very, very important… I wanted to hear candidates, I wanted to talk

to candidates in the interviews about their ideas about those types of things.

So that’s something that didn’t necessarily come through in prior work

experience.

(Sturkey Depo., Doc. 25 at PageID 646-649).

Isom explained that she went into the interviews “looking for someone that was

displaying zeal…someone who brought – was going to bring about, ion my mind at the

time, organizational ideas, opportunities for other people to, you know, be able to give

idea[s] on efficiency.” (Doc. 16 at PageID 196-197). Isom testified she “[d]idn’t want it to

be business as usual…I wanted just that energy that this was a role that this person

wanted and they were going to, you know, be driven or go even further.” (Id. at PageID

197). Sullivan similarly testified that the panelists were looking for someone who

exhibited strong leadership, a desire to make change and innovate, with an eye for

identifying problems and solution-focused initiative and drive. (Doc. 20 at PageID 488).

During the interviews, the panelists alternated asking the 18 questions of each

candidate. The panelists took contemporaneous notes and each panelist scored the

their first choice candidate according to her scored responses. However, the panel

agreed not to offer Buller the position because during the interview, she essentially

withdrew her name from consideration by indicating she would prefer to retain the duties

of the position she then held in the Criminal Division.

Smith’s scored responses put her in second place, closely followed by Plaintiff and

more distantly by London. In recognition of how close Smith’s and Plaintiff’s scores were,

the panel met several times to discern which of those two candidates they would promote.

According to all three panelists, both the interviews and the post-interview discussions of

the “pros and cons” of each candidate proved to be critical in selecting Smith over Plaintiff.

Isom was given authority to make the final decision. Pureval was not involved in the

process, but was informed once the promotion decision had been made. The panelists

uniformly testified that Plaintiff’s responses to several interview questions were not as

strong as Smith’s responses. They further testified that Smith performed exceptionally

well in her interview, while Plaintiff did not.

III. Analysis

A. Plaintiff Has Established a Prima Facie Case

The Age Discrimination in Employment Act (“ADEA”) prohibits discrimination

“because of such individual’s age.” 29 U.S.C. § 623(a). “A plaintiff may establish a

violation of the ADEA by either direct or circumstantial evidence.” Geiger v. Tower Auto.,

579 F.3d 614, 620 (6th Cir. 2009). With both direct and circumstantial evidence, “the

burden of persuasion remains on ADEA plaintiffs to demonstrate ‘that age was the “but-

for” cause of their employer’s adverse action.’” Id. (quoting Gross v. FBL Fin. Servs., 557

U.S. 167, 177 (2009)). “[I]t is not sufficient for the plaintiff to show that age

F.3d 523, 529 (6th Cir. 2014) (citing Gross) (emphasis added). Rather, the plaintiff must

show that age was the “reason” that the employer decided to act. Id. (citing Univ. of Tex.

Sw. Med. Ctr. V. Nassar, 570 U.S. 338, 350 (2013) (emphasis added.)).

On the record presented, Plaintiff does not claim to have direct evidence that if

believed, “requires the conclusion that age was the ‘but for’ cause of the employment

decision.” Scheick, 766 F.3d at 530. Instead, Plaintiff relies upon circumstantial evidence

to prove her claim. “[A]pplication of the McDonnell Douglas evidentiary framework to

prove ADEA claims based on circumstantial evidence remains consistent

with Gross.” Scheick, 766 F.3d at 529 (citations omitted).

Circumstantial evidence “is proof that does not on its face establish discriminatory

animus, but does allow a factfinder to draw a reasonable inference that discrimination

occurred.” Geiger, 579 F.3d at 620 (quoting Wexler v. White’s Fine Furniture, Inc., 317

F.3d 564, 570 (6th Cir. 2003) (en banc)). To set forth a prima facie case

of age discrimination using circumstantial evidence, a plaintiff must establish the four

elements of the iconic McDonnell Douglas test: 1) she was a member of a protected

class; 2) she suffered an adverse employment action; 3) she was qualified for the position

held; and 4) the person who received the promotion was outside the protected

class. See Geiger, 579 F.3d at 622; see also Mitchell v. Toledo Hosp., 964 F.2d 577, 582-

83 (6th Cir. 1992). The mandate to make a prima facie case “is not intended to be an

onerous one.” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir. 2014).

Defendant concedes that Plaintiff has come forward with proof to establish the first

three elements of her prima facie case under the McDonnell Douglas test. However,

Defendant argues that whether Plaintiff has satisfied the fourth element of her prima facie

class received the job at the time that Plaintiff’s request for promotion was denied –

remains “at issue.” See Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir.

2000). In support of this argument, Defendant appears to argue that it is entitled to

summary judgment because Smith and Plaintiff were not similarly situated.

Defendant’s argument is not persuasive, particularly on summary judgment where

all reasonable inferences from the record are to be drawn in Plaintiff’s favor. In fact, in

another portion of its brief, Defendant concedes that Smith and Plaintiff “were arguably

similarly qualified at least for purposes of the prima facie stage.” (Doc. 32 at 10, PageID

788). Defendant admits that Smith and Plaintiff shared many similar qualifications,

including high school diplomas, customer service experience, and at least one year of

supervisory experience, and that both candidates received similar point scores from the

panel. In opposition to summary judgment, Plaintiff argues that because the Defendant

concedes that the fourth element of her prima facie case is “at issue,” the Defendant has

conceded that a genuine dispute of material fact remains. The Court agrees. Therefore,

Defendant’s motion for judgment based upon Plaintiff’s alleged inability to establish her

prima facie case is denied.

B. The Defendant Has Articulated Facially Nondiscriminatory Reasons for

the Failure to Promote, Which Plaintiff Has Failed to Rebut

Even though Plaintiff has established her prima facie case, the Defendant is still

entitled to summary judgment because it has offered facially nondiscriminatory reasons

for promoting Smith over Plaintiff, which Plaintiff has failed to show are pretextual.

1. The Defendant’s Stated Reasons are Nondiscriminatory

“Once a plaintiff has established a prima facie case of age discrimination, the

nondiscriminatory reason for the adverse employment action.” Loyd v. Saint Joseph

Mercy Oakland, 766 F.3d at 590 (citation omitted). “The plaintiff then bears the burden of

demonstrating that the proffered reason was in fact a pretext designed to conceal unlawful

discrimination.” Id. Pretext can be shown in one of three ways: by offering evidence that

1) the employer’s stated reason had no basis in fact; 2) the stated reason did not actually

motivate the employer; or 3) the stated reason was insufficient to warrant the adverse

employment action. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.

2001) (citing Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.

1994)). The three-part test to show pretext “need not be applied rigidly” but rather “is a

commonsense inquiry.” Blizzard v. Marion Tech. College, 698 F.3d 275, 285 (6th Cir.

2012).

Here, the Defendant’s articulated reasons for the failure-to-promote focus on

Phase 3: the interview and post-interview assessment of the candidates’ respective “pros

and cons.” The Defendant states that Smith was chosen over Plaintiff based upon: (1)

Plaintiff’s generally poor interview performance; (2) Plaintiff’s failure to demonstrate the

stated goals of the new administration during her interview; and (3) Smith’s strong

interview performance and demonstration of said goals. Plaintiff argues first that

Defendant’s proffered reasons do not satisfy the Defendant’s relatively light burden to

articulate a legitimate non-discriminatory reason. Instead, Plaintiff asserts that the

Defendant’s articulated reasons reflect “the very types of ageist stereotypes the ADEA

was enacted to combat.” (Doc. 35 at PageID 889). She points to testimony by Sturkey

and Sullivan that in her interview, she was perceived to exhibit a lack of “drive and

motivation… to make reformations or significant changes” and her alleged lack of “general

Doc. 20 at PageID 493). Plaintiff argues that their comments demonstrate ageist

assumptions that “older workers are more resistant to change and are adverse to learning

new methods.” See Hartsel v. Keys, 87 F.3d 795, 802 (6th Cir. 1996).

Contrary to Plaintiff’s interpretation, the Defendant’s stated reasons are facially

non-discriminatory. To conclude otherwise would require this Court to assume that no

one younger than 40 can exhibit traits such as a lack of innovation and drive. To interpret

the articulated reasons as reflective of “stereotypical attitudes about older workers” also

unfairly conflates the Defendant’s burden to articulate a nondiscriminatory reason for its

action with Plaintiff’s ultimate burden to show discrimination and pretext. Ironically, in the

case cited by Plaintiff, the court affirmed the grant of summary judgment to the employer

after pointing out that it was plaintiff herself who was invoking ageist stereotypes in an

attempt to characterize the employer’s reasons as discriminatory. See Hartsel, 87 F.3d

at 802.

Because the Defendant has articulated legitimate reasons for its failure to promote

Plaintiff, in order to survive summary judgment, Plaintiff must come forward with enough

evidence to create a genuine issue of material fact about whether the Defendant’s stated

reasons were in fact pretextual. See Logan v. Denny’s, Inc., 259 F.3d 558, 567 (6th Cir.

2001). The evidence must be sufficient that a “jury may reasonably reject the employer’s

explanation.” Manzer, 29 F.3d at 1083. By contrast, a defendant will be entitled to

summary judgment where a plaintiff produces less than a preponderance, or no more

than a scintilla, of evidence to demonstrate pretext. See Hedrick v. Western Reserve

Care, 355 F.3d 444, 461 (6th Cir. 2004) (affirming summary judgment because plaintiff

“failed to demonstrate, by a preponderance of the evidence, that [employer’s] proffered

the plaintiff’s burden of production ‘merges’ with his ultimate burden of persuasion to show

that age discrimination was the but-for cause of his termination.” Willard v. Huntington

Ford, Inc., ___WL___ (6th Cir. March 11, 2020) (internal citations omitted). Plaintiff fails

to meet this burden.

2. Neither Sullivan’s “Leadership Training” Nor Her Phase 1 Screening

Raise a Genuine Issue of Material Fact on Pretext

Plaintiff argues that Sullivan’s characterization of Smith as a “high pass” in

comparison to her characterization of Plaintiff as a “low pass” at the Phase 1 screening

conducted by Sullivan is evidence of age discrimination. However, Plaintiff offers nothing

more than her own speculation to support her hypothesis. Such conjecture is insufficient

to create a genuine issue of material fact on pretext.

Sullivan testified that she eliminated applicants at the Phase 1 screening process

based upon no more than the applicants’ emailed expressions of interest, their resumes,

and Sullivan’s “historical knowledge” of the candidates. There is no evidence that Sullivan

shared her preliminary “high pass” or “low pass” screening evaluations with anyone else

on the panel. She testified her preliminary “high pass” and “low pass” screening

evaluations were not considered at all in the final selection. In fact, Sullivan rated Buller

(and every other candidate other than Smith) as a “low pass” during her Phase 1

screening, even though Buller scored the highest after the interviews and would have

been the first choice candidate but for her expressed reluctance to leave her then-current

position.

At Phase 1, Sullivan’s “historical knowledge” of the applicants included her

personal familiarity with Smith through “leadership development meetings” that Sullivan

had inquired about leadership opportunities and her belief that Smith had “clearly

emerged as a natural leader in her area.” (Doc. 20, PageID 406-408).

Although Smith testified that it was Sullivan who initiated the invitation for her to

attend, it is undisputed that Smith had submitted applications for other positions, and that

Sullivan interviewed her (but did not select her) for one of those positions.4 Sullivan

testified that because two others in the same Division had sought similar promotional

opportunities, Sullivan invited all three (Smith, Buller, and Monohan) to attend the

leadership development meetings as a group. (Doc. 20 at PageID 461). Sullivan testified

she intended “to pilot a coaching development process with these three” which, if

successful, she could later implement more widely. (Id.) The three women met with

Sullivan informally as a group five or six times over their lunch hours. However, Sullivan

left the Clerk’s office prior to implementing the program on any wider scale.

Plaintiff makes much of the fact that Sullivan did not invite Plaintiff to attend the

leadership development meetings, suggesting that Sullivan deliberately invited Smith

based solely upon Smith being “40 years Plaintiff’s junior.” (Doc. 35 at PageID 884).

However, in contrast to Smith who sought prior promotion and Sullivan’s unrebutted

testimony that the other two group members also sought promotional opportunities,

Plaintiff never sought any other promotion or Sullivan’s guidance. Plaintiff’s assertion that

Sullivan based the invitations on age is further undercut by the fact that Sullivan invited

Buller, who was in her mid-50’s at the time and also within the protected age class. Thus,

neither Sullivan’s failure to invite Plaintiff to participate in leadership training, nor her initial

4The Court finds this minor discrepancy to be immaterial. There is no dispute that Sullivan was aware of

Smith’s prior application(s). (Doc. 14 at PageID 62).

position, supports an inference of pretext.

3. A Comparison of Qualifications Does Not Raise a Genuine Issue of

Material Fact on Pretext

The record indisputably reflects that the Phase 3 factors of the interviews and the

panel’s post-interview discussions of the “pros and cons” of each candidate were critical

in the panel’s decision, Nevertheless, Plaintiff focuses on her qualifications alone in an

attempt to show pretext. The essence of Plaintiff’s argument is that she was so vastly

more qualified than the much younger Smith that no rational employer could have

selected Smith in the absence of discriminatory animus, and that the Defendant’s claim

that Smith was more qualified therefore is not worthy of belief.

The cases in which a disparity between the qualifications of the chosen candidate

and the plaintiff is sufficient, standing alone, to show pretext are few and far between.

Nevertheless, the Sixth Circuit has held that a plaintiff may be able to show pretext on the

basis of qualifications alone, if the plaintiff’s qualifications are “so significantly better” as

to far exceed those of the chosen applicant. See generally White v. Baxter Healthcare

Corp., 533 F.3d 381, 393-394 (6th Cir. 2008) (holding that African-American candidate

was so significantly better qualified that a factfinder could infer pretext, and that the

employer consciously selected the less-qualified white candidate for promotion based

upon discrimination).

Whether qualifications evidence will be sufficient to raise a question of fact

as to pretext will depend on whether a plaintiff presents other evidence of

discrimination. In the case in which a plaintiff does provide other probative

evidence of discrimination, that evidence, taken together with evidence that

the plaintiff was as qualified as or better qualified than the successful

applicant, might well result in the plaintiff’s claim surviving summary

judgment…. On the other hand, in the case in which there is little or no

probative evidence or discrimination, to survive summary judgment the

successful applicant’s qualifications that no reasonable employer would

have chosen the latter applicant over the former. In negative terms,

evidence that a rejected applicant was as qualified or marginally more

qualified than the successful candidate is insufficient, in and of itself, to raise

a genuine issue of fact that the employer’s proffered legitimate, non-

discriminatory rationale was pretextual.

Bender v. Hecht’s Dept. Stores, 455 F.3d 612, 626-27 (6th Cir. 2006) (citation omitted).

Despite the possibility that a plaintiff’s vastly superior qualifications can create an

issue of fact concerning pretext, particularly when combined with other evidence of

discrimination, the Sixth Circuit much more frequently has emphasized that “employers

are generally ‘free to choose among qualified candidates,’ and that ‘[t]he law does not

require employers to make perfect decisions, nor forbid them from making decisions that

others may disagree with[.]’” O’Dell v. State, 2018 WL 662245 (6th Cir. Feb. 1, 2018)

(quoting Bender, 455 F.3d at 627, additional citations omitted). A court is not to act as

“super-personnel department.” See Hedrick, 355 F.3d at 462 (citations omitted). Thus, “it

is inappropriate for the judiciary to substitute its judgment for that of management.”

Id.,(quoting Smith v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000)). “Rather, our

inquiry is limited to whether the employer gave an honest explanation of its behavior.” Id.

(internal quotation marks and citation omitted). “[W]hen qualifications evidence is all (or

nearly all) that a plaintiff proffers to show pretext, the evidence must be of sufficient

significance itself to call into question the honesty of the employer’s explanation.” Bender,

455 F.3d at 627 (additional citation omitted).

Plaintiff has failed to present such “significant” evidence in this case. Instead, and

contrary to her subjective perception of her qualifications, the record reflects that the two

candidates had differing strengths and weaknesses but fairly similar qualifications. In

fact, the Court concludes that a reasonable fact-finder could find that Smith was the more

a. Supervisory and Municipal Court Experience

In support of her claim that her qualifications far surpassed those of Smith’s,

Plaintiff begins by comparing her supervisory and Municipal Court experience with

Smith’s. The written requirements for the Supervisor’s position state a preference for “at

least one (1) year of supervisory experience.” (Doc. 20-1 at PageID 528). Plaintiff points

to nearly 20 years of what she describes as supervisory experience with LasikPlus.

However, Plaintiff directly supervised no more than 2 or 3 employees at any time.5 During

the years she was employed at LasikPlus, she did not actually hire, fire, or discipline any

of the people who directly reported to her. She testified that she did not have authority to

make that type of decision “on my own” but instead would have consulted with the vice

president of HR or with her direct supervisor at LasikPlus. (Doc. 18 at PageID 274).

Still, Plaintiff argues that Smith not only had less experience but did not meet the

“one year” stated preference in the job posting, because although Smith oversaw 17

people, her tenure as General Manager of a Holiday Inn Express lasted for just nine

months, and she was involuntarily terminated from that position.6 (Smith Depo, Doc. 14

at PageID 69, 51-52). However, Smith testified in her deposition that she also had worked

as an Assistant GM at the Blue Ash Holiday Inn Express for about eight months, followed

by a position as Sales Manager for three different locations, before ending her

employment as GM at the Sharonville location.7 Thus, Smith’s supervisory experience in

5In contrast to her deposition testimony, Leisring reported in her written application that she had supervised

10 “direct reports” over a period of 5 years.

6There is no evidence that the panelists were aware that Smith was involuntarily terminated. It is beyond

this Court’s purview to consider evidence of which the decision-makers had no knowledge. Smith testified

that occurred during a period of renovations, when the hotel was receiving poor customer reviews. (Doc.

14 at PageID 51)

7Like Plaintiff, Smith’s written application did not precisely match up with her deposition testimony. In her

Further comparing the two candidates’ private sector supervisory experience, it

appears that Smith had different, but at least equivalent (if not greater), supervisory

experience than Plaintiff. Plaintiff had a greater number of years of experience, but she

had less authority than Smith did to hire, fire, and discipline and did not directly supervise

as many employees. See Hawkins v. Memphis Light Gas and Water, 2011 WL 6012503

at *8 (W.D. Tenn. Dec. 1, 2011) (holding that plaintiff’s decade of experience as a

supervisor did not make him “so significantly” better qualified as to survive summary

judgment).

Turning to relevant experience with the Clerk of Court, Plaintiff testified that she

also had greater qualifications in that context. Drawing reasonable inferences in Plaintiff’s

favor, the Court finds that Plaintiff assumed some temporary supervisory duties in 2017

when Poland took a medical leave.8 At the time, Plaintiff learned in a group meeting that

she was to serve as the interim supervisor during Poland’s absence. Plaintiff signed at

least one email (to Isom) with an “Acting Supervisor” designation. (Doc. 18 at PageID

289-291, 319). Although the extent to which Plaintiff assumed Poland’s supervisory

responsibilities remains disputed,9 the undersigned credits Plaintiff’s testimony on

summary judgment. (Doc. 18 at PageID 288-294). Still, Plaintiff’s temporary promotion

to “acting” supervisor does not prove pretext or preclude summary judgment being

application, Smith stated that she was a “supervisor/general manager for 2.5 years,” during which time she

“was in charge of overseeing the daily operations of 10-12 employees.” (Doc. 20-1 at PageID 530).

8Plaintiff herself could not identify what those duties were. (Doc. 18 at PageID 296).

9Isom previously served as Supervisor before Poland and therefore was familiar with the duties. She

testified that she worked overtime as well as performed extra duties during Poland’s leave of absence in

an effort to keep up. (Doc. 16 at PageID 194). Plaintiff testified that she was able to complete additional

assigned duties without working any overtime, but also stated in her written application that Poland’s

absence resulted in the division “not being able to process the work timely.” (Doc. 20-1 at PageID 533).

(holding that the plaintiff’s success as Acting Superintendent was insufficient to create

issue of fact on pretext, where the Defendant had offered facially nondiscriminatory

reasons for the selection of another).

As additional support for her claim of significantly better qualifications, Plaintiff

points out that in February 2018, she was promoted to be the designated “LEAD” position

in her division - a new position created by Pureval. (Doc. 18, PageID 304, 282). Sullivan

testified that the LEAD position “was generally the highest performer” in the department,

and was expected to assist with supervisory duties in the event of the supervisor’s

absence. (Doc. 20 at PageID 393). A document entitled “LEAD Designation Description”

describes the position as a “non-supervisory role” but (somewhat contradictorily) states

that 10% of the “essential duties” of a LEAD include “Operations Management and

Coaching.” (Doc. 18-2 at PageID 334). One of the four tasks listed under “Operations

Management and Coaching” is “Direct the work flow and distribute responsibilities during

supervisor’s absence.” (Id.) No other “supervisory” duties are listed and based on the

timing of Plaintiff’s designation, it does not appear that Plaintiff performed supervisory

duties in 2018.

Attempting to distance Smith’s qualifications as vastly inferior, Plaintiff asserts that

Smith “did not meet even the minimum qualifications” because she worked in the

Common Pleas Division and did not have experience in the Municipal Civil Division. The

Supervisor position required “knowledge of” Municipal Civil Division operations and skills

in the “[r]outine work of the Municipal Civil division” but was not restricted to applicants

who worked within that division. (Doc. 20-1 at PageID 528). In fact, the panel’s first choice

candidate, Buller, worked in the same Common Pleas Division as Smith. Smith explained

processes in the Municipal Civil Division. (Doc. 14 at PageID 88-89). The panelists

testified without contradiction that Smith possessed all required skills, based on the

similarities and overlap between the systems. Sturkey explained that the “entire office

uses the same case management software, so she was obviously very familiar with that

and how to use that, but [Smith’s] knowledge of what we did down there and why really

stood out to me.” (Doc. 25 at PageID 663). Whereas Smith spoke about her prior

experience in a specific way and made connections on how it related to the Supervisor

role, Plaintiff did not bring up how her prior experience contributed to her qualifications

during her interview. (Doc. 25 at PageID 666; Doc. 20 at PageID 492-493; Doc. 18 at

PageID 313).

As the Defendant points out, Smith also had greater exposure to magistrates and

judges - another required qualification for the position. (Doc. 20 at 499). In response to

a written question about whether the applicant had worked directly with judges or

magistrates, Smith responded unequivocally to “daily” experience: “Yes, while working in

Municipal criminal/traffic I worked with both judges and magistrates daily.” (Doc. 20-1 at

PageID 530). Plaintiff responded much more equivocally, “only when they come to our

area with a question regarding a case.” (Id. at PageID 532; see also Doc. 20 at PageID

433-437).

In sum, although Plaintiff undoubtedly was more familiar with the day-to-day work

of the Municipal Civil Division, the record does not present any genuine issue of material

fact that Smith was at least as well-qualified and easily met or exceeded all requirements

for the Supervisor position. Based on written and interview responses, Smith appeared

to have greater knowledge of municipal civil “processes,” had more experience with

b. Performance Reviews and Supervisor’s Recommendations

In addition to stressing her supervisory experience and familiarity with the

Municipal Civil Division, Plaintiff strenuously argues that she was the better qualified

candidate “[b]ecause I had very good performance reviews.” (Doc. 18 at PageID 305).

There is no question that Defendant thought highly of Plaintiff. Sullivan and Isom agreed

that “Karen was a very high performer.” (Doc. 20 at PageID 383, 392). Plaintiff

consistently received high performance evaluations as a “standout” employee. (Doc. 20

at PageID 383, 420; Doc. 25 at PageID 647-648, Doc. 16 at PageID 143-144). Plaintiff

contends that the panel’s acknowledgment of her as a “standout” employee is

inconsistent with their failure to select her for promotion.

Respectfully, the Court must disagree. An employee may be extremely

conscientious and a great performer, but still be honestly (even if mistakenly) perceived

to lack the specific leadership skills that the panel stated it was seeking for the Supervisor

position. Just as not every player makes a great coach; not every exceptional front-line

worker makes an exceptional manager. As Sullivan explained, the Defendant most

heavily weighted the interview. The recognition that Plaintiff “was a high performer and

was consistent and dependable” did not “necessarily mean that she exhibits forward

thinking or the supervisory skills that we were looking for…which is why we interviewed.”

(Doc. 20 at PageID 395).

Returning to a comparison of past performance, Plaintiff points out that Smith’s

supervisor(s) rated her as “below average” in the specific area of “attendance” on two

prior performance evaluations. (Doc. 14 at PageID 77-78). However, there is no evidence

that anyone on the panel, including Sullivan, was aware of Smith’s alleged attendance

performance reviews were considered in the selection process as Sullivan testified that

they were “spotty” and “incomplete and inconsistent.” (Id. at PageID 385). And even if the

panelists had been aware of the alleged past attendance issues (which again, there is no

evidence to support), that fact still would not raise the inference of pretext. See Bhama

v. Mercy Memorial Hosp. Corp., 416 Fed. Appx. 542, 552 (6th Cir. March 25, 2011)

(affirming summary judgment despite chosen candidate’s attendance issues because

while the plaintiff “may honestly believe that Mercy made the wrong decision

and…ignored relevant factors in doing so, a reasonable jury could not infer a

discriminatory animus from this unsupported conjecture.”).

For similar reasons, the fact that the panelists chose not to consider the

recommendation of the current Supervisor, Poland, does not provide sufficient evidence

to present to a jury. Although Plaintiff does not know to whom Poland recommended her,

(Doc. 18 at PageID 305; Doc. 20 at PageID 416-418), Sullivan was generally aware of

his recommendation. Plaintiff clearly disagrees with the disregard of the recommendation,

but her wish that the panel had focused on different criteria does not establish pretext, so

long as the selected criteria were not discriminatory. None of the panelists testified that

they considered the recommendations from the candidates’ superiors to be particularly

relevant. Of note, Smith also received a recommendation from Rick Hofmann, Chief

Deputy of the Common Pleas Division and Smith’s department head, but Sullivan equally

disregarded his recommendation. (Doc. 20 at PageID 418). Poland was not involved in

the promotional process. When asked whether his recommendation carried any weight,

Sullivan responded:

I won't say it carried weight. If he hadn't recommended her, then it would

historically everyone was recommended for everything.

(Doc. 20 at PageID 417).

Plaintiff asserts that Sturkey “conceded that [Poland’s recommendation] would

have been given weight had he known of it.” (Doc. 35 at PageID 894, citing Sturkey

Deposition. at PageID 645-646). However, the transcript pages to which Plaintiff cites

contain no such testimony. Sturkey initially could not recall whether “maybe” Poland had

said “something…in passing” to recommend Plaintiff. (Doc. 25 at PageID 646). At a later

point in his deposition, Sturkey thought that “Jerry did say either to Jess [Isom] or myself

that he liked Karen for the role,” (Id. at PageID 725), but went on to explain that Poland

had been demoted “a couple times” into the Supervisor position. In Sturkey’s view,

Poland “had lost the confidence of his staff” in that position and “was not the reform-

minded leader that we wanted in that role.” (Id. at PageID 726-727). Isom testified that

she was Poland’s boss, that he “did a good job” as Supervisor and “talked about what a

good job [Plaintiff] was doing in her role.” (Doc. 16, PageID 132-133). However, she did

not recall that Poland conveyed a recommendation that Plaintiff be selected by the panel

to replace him. Certainly there is no evidence to suggest that Isom would have been

influenced by Poland’s recommendation if he had made one or if she had recalled it.

Plaintiff’s focus on Poland’s alleged recommendation as proof that the articulated

basis for Smith’s selection had “no basis in fact” is unpersuasive. Plaintiff argues that “[a]

reasonable jury could find that Sullivan concealed information that the other panelists

would have found useful – so as to advantage younger applicants who did not have

Poland’s recommendation…..” (Doc. 35 at PageID 894). However, the record is utterly

devoid of evidence that Sullivan “concealed” Poland’s recommendation or that the

recommendation is therefore insufficient to show pretext.

4. The Evaluations of Interview Performances Do Not Show Pretext

As stated, the reasons articulated by the Defendant for its selection of Smith over

Plaintiff chiefly relate to Plaintiff’s relatively poor interview performance as compared to

Smith’s stronger performance. Defendant argues that the “scoring rubric, testimony, and

the notes of the three individuals who conducted the interviews for the position” all support

Defendant’s conclusion that Plaintiff did not interview well in comparison to Smith. (Doc.

37 at 3). The undersigned agrees. Courts have repeatedly upheld the right of employers

to base their selection on interview performance, notwithstanding the acknowledgment

that interview performance is inherently subjective.

Plaintiff cites to cases in which courts have suggested that “inherently subjective”

interview determinations deserve careful scrutiny. See White, 533 F.3d at 394-395 (noting

that the “inherently subjective determination” of White’s interview performance was “easily

susceptible to manipulation in order to mask the interviewer’s true reasons for making the

promotion decision.”). However, in White, the employer had selected a candidate who

had significantly inferior qualifications. In addition, White represents the exception rather

than the rule.10

In the vast majority of cases, courts are loath to interfere with a manager’s

prerogative to conduct interviews in the form and fashion with which he or she sees fit,

so long as the form and fashion do not implicate impermissible discrimination. See Sigall-

10The White court did not discuss earlier binding precedent including Bender. In addition, the record in

White included significant evidence of racially discriminatory animus toward the plaintiff that added to the

qualifications disparity. During his interview, the plaintiff was rated negatively as “aggressive” when he

pointed out the lack of racial diversity in the company, especially in management positions.

“venture into the territory of telling employers the form and extent of hiring interviews,”

and averring that “it would be inappropriate to interfere with a manager’s prerogative to

conduct interviews in the form and fashion with which he or she sees fit, so long as the

form and fashion do not implicate impermissible discrimination.” Allowing employers to

make decisions on “subjective” factors such as interviews is consistent with the “honest

belief” rule. See Russell v. Michigan Dept. of Health and Human Services, 2018 WL

1168981 at *9 (E.D. Mich. March 6, 2018) (“[T]he prevailing rule in this Circuit is that if an

employer has an ‘honest belief’ in the nondiscriminatory basis upon which it has made its

employment decision…, then the employee will not be able to establish pretext.”).

Because employers are not required to make objectively perfect decisions, a

plaintiff cannot show pretext by arguing that the employer should have relied solely on

objective criteria, or based its decision on factors that the plaintiff would have preferred.

Thus, in Sigall-Drakulich, the court granted summary judgment to the City after noting

that, despite Plaintiff’s criticism that the interviewer failed to sufficiently inquire into her

knowledge, skills and abilities during the interview, she failed to allege that interviewer

made any discriminatory remarks or allusions. See also Heath v. Ohio Turnpike Com’n,

85 Fed. Appx. 494, 497 (6th Cir. 2004) (stating that “poor interview performance is a

legitimate reason for not promoting an employee”); Davis v. Cintas Corp., 717 F.3d 476,

494 (6th Cir. 2013) (poor performance during interview process was legitimate,

nondiscriminatory reason for not hiring); Johnson v. Lockheed Martin Corp., 598 Fed.

Appx. 364, 369 (6th Cir. 2015) (plaintiff’s disagreement with interview scores insufficient

to show pretext); Lawroscki v. Nationwide Mut. Ins. Co., 570 Fed. Appx. 589, 594 (6th

Cir. 2014) (low scores in interview process as well as superior’s negative impression of

Cir. 2006) (affirming summary judgment on age discrimination claim where plaintiff failed

to show that employer’s nondiscriminatory reasons for the failure to promote, including

plaintiff’s poor interview, were pretextual); Bargo v. Goodwill Indus. of Kentucky, Inc.,

2014 WL 7359047 (E.D. Ky. 2014) (decision based on interview performance was

legitimate and nondiscriminatory).

Here, the same outcome is obtained because Plaintiff has failed to produce more

than a scintilla of evidence to support her claim of pretext. Sullivan testified that Smith

impressed her because in her interview, she “was so eager to make change and that

hadn’t been the culture at the office.” (Doc. 20 at PageID 498). According to Isom, Smith

“exuded confidence. She just made me feel like she was someone that was going to

continue with great innovations. And she was a big picture thinker, and I was impressed.”

(Doc. 16 at PageID 198). Sturkey similarly testified that Smith stood out. “Catherine went

from frankly as sort of a long shot to the top contender. She won it in that interview and

that’s how Karen fell from someone who I thought had an advantage going in to someone

who ultimately finished third.” (Doc.. 25 at PageID 731). In contrast to Plaintiff, the

panelists consistently described Smith as “driven” “sharp” and a “big picture thinker.”

(Doc. 20 at PageID 492; Doc. 25 at PageID 663; Doc. 16 at PageID 198).

Unlike Smith, Sturkey recalled that Plaintiff performed poorly and “feeling a bit

surprised that she didn’t do better and feeling that she was unprepared.” (Doc. 25 at

PageID 659). He recalled discussing that with Isom and Sullivan and the sense that

Plaintiff “walked in thinking she was going to get it, that she was entitled to it and didn’t

take the interview process seriously.” (Doc. 25 at PageID 660). The panel was

“underwhelmed and [thought] that she was not the best candidate for the job, not the

Sturkey testified that a “candidate who should have had the best and most intimate

knowledge of those systems and those processes come in and essentially say because

it’s the way we’ve always done it, this is the way we do it, and it’s fine just the way it is,

that couldn’t have been a worse answer.” (Id. at PageID 731). Sturkey perceived that

Plaintiff’s “answers were not well thought out.” (Id.at PageID 660).

Isom testified to her similar impression that Plaintiff “was not as zealous. I felt that

Karen entered the interview as if it were a mere formality, that it was already her job to

have. I didn’t feel like Karen was going to bring any change as far as the organization.”

(Doc. 16 at PageID 200). Likewise, Sullivan testified that she did not see Plaintiff

exhibiting the “level of drive and motivation to identify problems and be solutions-focused

or make reformations or significant changes.” (Doc. 20 at PageID 489, 493). She

believed Plaintiff lacked “the general aggressive, innovative thinking and desire to make

change as well as there was nothing in [Plaintiff’s] statements or [Isom’s] commentary on

Karen’s performance regarding her stepping up and leading the team in a very direct way.

It was more of a day-to-day operations.” (Id. at PageID 493).

Plaintiff complains that the Defendant’s stated reasons cannot be the real reasons

because the panelists’ individual assessments had “no basis in fact.” Plaintiff insists that

the panelists relied on “age-related stereotypes,” based upon their perception that Plaintiff

appeared less interested in “modernization” and “professionalism.” Contrary to Plaintiff’s

characterization, however, the panelists’ “pros and cons” discussions were memorialized

in part by contemporaneous notes, and they offered multiple examples of the responses

to both interview and written questions that supported their respective (and shared)

evaluations of Plaintiff’s performance.

category. Question 9 read: “Have you ever had to interact with a difficult personality?

Have you ever had to provide services to a rude or demanding customer? What

happened?” (Doc. 20-6 at PageID 560). Plaintiff responded by saying she would take the

issue with a difficult customer to someone above her and “remove herself from the

situation as opposed to working through it.” (Doc. 20 at PageID 494; Doc. 20-1 at PageID

548).

Question 16 asked: “how do you plan to build relationships with your staff?” (Doc.

20-6 at PageID 560). Plaintiff again gave an answer that was viewed as a “con” because

she responded that her coworkers already respected her, without considering the future,

including when new hires onboard. (Doc. 20-1 at PageID 548). Sturkey explained that

the answer did not “actually giv[e] us real substantive chunks of things she would do to

build relationships with the staff, just assuming it’s all good because they all know me.”

(Doc. 25 at PageID 683-684).

Plaintiff complains most bitterly about Question 18, suggesting that the wording of

that query strongly supports a finding of pretext. It does not. Question 18 read: “As you

know, leadership opportunities in this office are finite. We are working very hard to ensure

these opportunities are given to employees that are committed to the long-term success

of this office. How long do you see yourself committed to this role?” (Doc. 20-1 at PageID

534). Plaintiff responded by first asking Isom (who was in her late 40’s) when she could

retire, before Plaintiff responded that she planned to work for three years. The panel

evaluated Plaintiff’s answer as a “con” because the substance of Plaintiff’s answer did not

address what the Clerk’s office was trying to achieve in “really systematic culture change,

change management practices, stronger management of individuals.” (Doc. 20 at PageID

May not have higher aspirations for the role or how she can build it.” (Doc. 20-1 at PageID

524). Sturkey stated that Plaintiff’s response suggested a lack of interest “in building up

that particular role.” (Doc. 25 at PageID 739). Isom similarly testified that Plaintiff’s

response did not “address the essence of what we were looking for other than just how

long are you planning on being here.” (Doc. 16 at PageID 202).

Contrary to Plaintiff’s view, the language in Question 18 that inquired about the

applicant’s long-term commitment does not show age discrimination or pretext. Courts

regularly have held that even more direct comments relating to an employee’s expected

retirement date do not provide evidence of age discrimination. See Woythal v. Tex-Tenn

Corp., 112 F.3d 243, 247 (6th Cir. 1997); Metz v. Titanium Metals Corp., 475 Fed. Appx.

33, 35 (6th Cir. 2012). Sullivan testified that the intention behind Question 18 was to

convey “a commitment and an understanding as to what would be required in the role,

and that it would generally take time or would require ambitious planning.” (Doc. 20 at

PageID 450).

As evidence that the panelists erred in their evaluation and ignored facts based on

age discrimination, Plaintiff complains that the panelists should have considered that

Plaintiff had recommended several beneficial changes over the years, including

encouraging wider use of email and streamlining the process for certificates of judgment.

However, Plaintiff did not bring up those past changes or suggestions for change during

her interview. Although Isom was Plaintiff’s supervisor, an employer is not required to

have a perfect recall of an applicant’s prior successes. There is nothing in the record to

suggest that, during the evaluation process, Isom independently recalled the initiatives to

which Plaintiff testified in her deposition.

altered the substance of Question 2 in order to elicit precisely the type of information that

Plaintiff failed to volunteer. The original format of Question 2 asked: “What type of cases

and other work responsibilities is the MCV division responsible for within the Clerk’s

Office? What role does the Case Management Dept. play in the division?” Sturkey

explained that because Plaintiff was the sole candidate who worked in the Division and

knew the day-to-day work, he posed the alternative question: “[W]hat sort of adjustments

or improvements would you like to make in the office?” (Doc. 25 at PageID 658). He was

not impressed with Plaintiff’s response: “I thought it was substandard, and it didn’t seem

like she was understanding that what we were trying to do in the clerk’s office going back

to modernization and professionalism.” (Id. at PageID 660). Thus, despite the inclusion

of open-ended questions and being provided a specific opportunity to bring up past

successes or to offer future ideas in response to Question 2, Plaintiff failed to bring up

either past or future ideas for changes, recommendations or suggestions. (Doc. 18 at

PageID 307-308).

Plaintiff complains that the stated reasons did not actually motivate the promotional

decision. She argues that the true reason for her coming in second to Smith (and third

overall) was age discrimination masked by the subjective nature of the panel’s focus on

the interview scores. As support for this hypothesis, Plaintiff points to an email sent from

Sullivan to Isom that encouraged her to consider “who would be the better long-term

leader.” (Doc. 20-11 at PageID 574). Plaintiff asserts that the email “smack[s] of ageism”

and was sent “[j]ust before” Isom made her final decision, proving that Sullivan and the

panel used impermissible criteria (age) in its selection of Smith. (Doc. 35 at PageID 886).

Despite Plaintiff’s insistence that the email was sent “immediately before Isom

the email was sent before the three panelists met for an in-depth discussion of the pros

and cons of the candidates. (Doc. 16 at PageID 179). In addition, the email is consistent

with the facially neutral Question 18 that asked each applicant to comment on their

commitment to the “long-term success” of the office. Finally, Isom testified to her reliance

on the scoring chart in making her final decision, not Sullivan’s email. (Doc. 16-7 at

PageID 241).

In a last attempt to raise an issue of fact on pretext, Plaintiff argues that the

Defendant’s stated reason was “insufficient to motivate the decision,” because the

Defendant relied upon “thoroughly subjective criterion of interview performance” rather

than solely objective criteria. Plaintiff suggests that the panelists “can now literally say

whatever they want about Plaintiff’s performance,” insinuating that the panelists’

testimony should be disbelieved in the absence of recordings of the interviews. (Doc. 35

at PageID 895). However, the panelists took contemporaneous notes, and there is no

basis other than Plaintiff’s own unsupported speculation to disbelieve those notes and

sworn deposition testimony concerning Plaintiff’s performance. The panel’s view of

Plaintiff’s interview performance is also consistent with their evaluation of Smith’s and

Plaintiff’s written responses, which also reflected Plaintiff’s lower overall score.

In sum, Plaintiff’s subjective belief that she was the better “objectively” qualified

candidate over Smith or that she did “well” in her interview does not create a genuine

issue of material fact concerning pretext. See Hedrick, 355 F.3d at 462 (holding that a

plaintiff’s “subjective view of her qualifications in relation to those of other applicants,

without more, cannot sustain a claim of discrimination.”); Brennan v. Tractor Supply Co.,

237 Fed. Appx. 9, 23 (6th Cir. 2007) (holding that a plaintiff’s “perception of his

Wrenn v. Gouild, 808 F.2d 493, 502 (6th Cir. 1987)); Briggs v. Potter, 463 F.3d at 516

(plaintiff’s subjective view of his own qualifications in relation to other applicants

insufficient to show pretext); Plumb v. Potter, 212 Fed. Appx. 472, 480 (6th Cir. 2007);

Russell v. Michigan Dept. of Health and Human Services, 2018 WL 1168981 at *8

(rejecting the plaintiff’s premise that pretext could be shown based upon a panel’s

“subjective assessment” of the interview process, where the plaintiff failed to offer “a

shred of evidence that any of the defendants harbored any ‘discriminatory views,’ that the

interview scoring process was flawed, or that the defendants did not rely on those scores

in good faith when making their promotion decision”).

IV. Plaintiff’s State law claim is Precluded

Defendant argues that Plaintiff’s closely related state law claim, under Ohio R.C.

§ 4112.14, is precluded due to her choice to file an administrative action with the EEOC.

The undersigned declines to consider this argument. Instead, the Court grants judgment

to the Defendant based upon its alternative argument that Ohio generally follows the

same analytic framework established by federal case law for use under the ADEA.

Because Plaintiff has not presented a genuine issue of material fact to proceed to trial on

the issue of pretext under the ADEA, her related state law claim also fails.

V. Conclusion and Order

Based on the record as a whole, no reasonable jury could find in favor of the

Plaintiff in this case. Accordingly, IT IS ORDERED that Defendants’ motion for summary

judgment (Doc. 32) be GRANTED, and that this case be DISMISSED.

Stephanie K. Bowman

United States Magistrate Judge