Allen v. Spencer

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

DEXTER ALLEN, )

)

Plaintiff, )

)

v. ) No. 2:18-cv-02778

)

KENNETH J. BRAITHWAITE, )

Secretary of the United States )

Department of the Navy, )

)

Defendant. )

ORDER

This is a failure-to-hire employment discrimination case.

Plaintiff Dexter Allen brings this action against Defendant

Kenneth J. Braithwaite, Secretary of the United States Department

of the Navy, for race and color discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et

seq. (“Title VII”).1 (ECF No. 1.) Before the Court is

Braithwaite’s Motion to Dismiss, or in the alternative, Motion for

Summary Judgment, filed on December 30, 2019. (ECF No. 25.) Allen

1 Richard V. Spencer, former Secretary of the United States Department

of the Navy, was the previously named defendant to this action. On May

29, 2020, Braithwaite became the Secretary of the United States

Department of the Navy. Pursuant to Federal Rule of Civil Procedure

25(d), the Court “automatically substitute[s] [Braithwaite] as a party.”

Fed. R. Civ. P. 25(d).

responded on January 24, 2020. (ECF No. 27.) Braithwaite replied

on February 7, 2020. (ECF No. 31.)

For the following reasons, Braithwaite’s Motion to Dismiss,

or in the alternative, Motion for Summary Judgment, is DENIED.

I. Background

Dexter Allen is an African American male whose color is brown.

(ECF No. 31-1 ¶ 1.) Allen worked for the United States Navy (the

“Agency”) as a Director of Security/ATFP (Anti-Terrorism Force

Protection) Operations and Command Security Manager at Navy

Recruiting Command (“NRC”) in Millington, Tennessee, from 2012 to

2016. (ECF No. 27 ¶ 4; ECF No. 31-1 ¶¶ 21, 22.) Allen retired

from active military service with the Navy around October 2016.

(ECF No. 27 ¶ 3; No. 31-1 ¶ 21.)

On December 12, 2016, the Agency announced a job opening for

a civilian position, titled Supervisory Security Specialist (the

“Position”), located at the NRC in Millington, Tennessee. (ECF

No. 31-1 ¶ 19.) Allen applied for the Position by submitting an

application through USAJOBS.gov and was referred to the NRC hiring

manager for résumé review and assessment of whether he should be

interviewed. (ECF No. 27 ¶¶ 5, 7.)

Résumé review and interview processes for Agency positions

are conducted by a Selection Advisory Board (“SAB”), which consists

of three Agency employees. (ECF No. 31-1 ¶ 25.) The SAB panel

for the Position (the “Panel”) consisted of: (1) James Blum,

Director of Supply Department/Logistics Management Officer at NRC;

(2) Daniel Harris, Bureau of Naval Personnel Security Manager; and

(3) Captain Hallock Mohler, then Commanding Officer and Executive

Director of Navy Recruiting District. (ECF No. 27 ¶ 10; No. 31-1

¶¶ 26, 71.) Normally, the SAB is made up of racially diverse

members, but the Panel for the Position consisted of all Caucasian

males. (ECF No. 31-1 ¶ 77.)

Résumés are graded individually against a résumé matrix by

members of the SAB. (Id. ¶ 27.) Based on scores tallied from the

résumés, the SAB selects candidates to be interviewed. (Id. ¶ 28.)

According to the Bureau of Naval Personnel (BUPERS) Guide to

Civilian Hiring (“BUPERS Guide”), after the SAB members have scored

the résumés, “if there are significant differences in SAB members’

scores, the SAB should reconcile the differences (i.e. one member’s

top candidate is another member’s bottom candidate). Members

should discuss why they assigned the score and give examples of

what they saw or did not see in the candidate’s résumé.” (ECF No.

25-10 at 13.) The BUPERS Guide does not mandate this

reconciliation requirement for the interview process. (See id. at

14.)

On his résumé scoresheet, Allen tallied scores of 70, 90, and

80 (for an average of 80) and was selected to move to the interview

stage. (ECF No. 25-11; No. 31-1 ¶ 29.) Another candidate, Steven

Hickman (Caucasian, male) tallied scores of 85, 70, and 90 (for an

average of 82) and was also selected to move to the interview

stage. (ECF No. 25-11; No. 31-1 ¶ 29.)

During the interview stage, the Panel asks interviewees the

same eleven questions. (ECF No. 31-1 ¶ 30.) Each SAB member

receives a scoring sheet for each interviewee in which the member

scores each interviewee on each question. (Id. ¶ 31.) Each SAB

member adds that member’s scores for each question to get a total

interviewee score from each SAB member. (Id. ¶ 32.) Scores from

each member are averaged to get a final score for each interviewee.

(Id. ¶ 33.) The interviewee with the highest average interview

score is recommended by the SAB to the selecting official as the

selectee. (Id. ¶ 34.) The interviewee with the second highest

score is recommended by the SAB to the selecting official as the

first alternate. (Id. ¶ 35.)

On February 2, 2017, the Panel interviewed Allen for the

Position. (ECF No. 27 ¶¶ 8, 9.) At the conclusion of his

interview, the SAB members gave him the following scores: Captain

Mohler, 85; Harris, 87; Blum, 69, for an average total score of

80. (ECF No. 31-1 ¶¶ 41, 42.)

The Panel also interviewed Hickman. At the conclusion of his

interview, the SAB members gave him the following scores: Captain

Mohler, 81; Harris, 76; Blum, 85. (Id. ¶ 39.) Those numbers were

averaged to give Hickman a total score of 81. (Id. ¶ 40.)

On February 3, 2017, based on their respective total scores,

the Panel recommended to Captain Eric Cheney, Chief of Staff, NRC,

that Hickman be selected for the Position and that Allen be the

first alternate. (ECF No. 31-2 at 28 ¶ 30; id. at 108.) Captain

Cheney forwarded the Panel’s recommendation to Gary Peterson,

Deputy Commander and Executive Director NRC, who was a selecting

official for the Position. (ECF No. 31-1 ¶¶ 7, 72; No. 31-2 at 28

¶ 30.) On June 14, 2017, the Agency notified Hickman that he had

been selected for the Position. (ECF No. 27 ¶ 14.)

Braithwaite alleges that, on May 19, 2017, Yen Nguyen, a Human

Resources Specialist at the Office of Civilian and Human Resources

(“OCHR”) Operations Center, notified Allen through USAJOBS.gov

that he had not been selected for the Position. (ECF No. 25-3 ¶¶

1, 7; id. at 3-4.) Allen says he never received that notification

and that he first learned that he had not been selected when Timika

Figgs, a colleague, told him so around September 13, 2017. (ECF

No. 27-2 at 42:5-9.)

On October 4, 2017, Allen contacted an Equal Employment

Opportunity (“EEO”) Investigator and stated a claim of race and

color discrimination. (ECF No. 31-1 ¶¶ 61, 62, 63.) On November

29, 2017, Allen filed a formal complaint with the Department of

the Navy. (ECF No. 1 ¶¶ 16, 17.) On August 11, 2018, the

Department of the Navy issued its Final Agency Decision. (Id. ¶

16.) On November 11, 2018, Allen filed this action alleging

violations of Title VII for race and color discrimination. (Id.)

During depositions in this case, it was discovered that Harris

gave Allen the following scores for his answers to the eleven

interview questions: 8, 8, 9, 9, 10, 9, 10, 10, 7, 8, and 9. (ECF

No. 31-1 ¶ 43; No. 31-2 at 90, 91.) On the interview spreadsheet,

those numbers were mistakenly added for a total of 87. (ECF No.

31-1 ¶ 43; No. 31-2 at 90, 91.) Adding those scores properly,

Allen’s total score from Harris should have been 97. (ECF No. 31-

1 ¶ 44.) Harris has admitted his scoring total of 87 for Allen

was incorrect and the correct score was 97. (Id. ¶ 45.) Had the

correct score been used, Allen’s average score would have been 83,

making him the highest scoring candidate for the Position. (Id.

¶ 46.)

On December 30, 2019, Braithwaite filed the Motion to Dismiss,

or in the alternative, Motion for Summary Judgment. (ECF No. 25.)

Allen responded on January 24, 2020. (ECF No. 27.) Braithwaite

replied on February 7, 2020. (ECF No. 31.)

II. Jurisdiction

The Court has federal question jurisdiction. Under 28 U.S.C.

§ 1331, district courts have original jurisdiction “of all civil

actions arising under the Constitution, laws, or treaties of the

United States.” Allen asserts a right to relief against

Braithwaite for employment discrimination in violation of Title

VII. (ECF No. 1 ¶¶ 60-83.) That claim arises under the laws of

the United States.

III. Standard of Review

Braithwaite moves to dismiss under Federal Rule of Civil

Procedure 12(b)(6), arguing that Allen has failed to state a claim

upon which relief may be granted because he failed to timely

exhaust his administrative remedies. (ECF No. 25-1 at 6-8.)

Alternatively, Braithwaite moves for summary judgment under Rule

56, arguing that, although Allen has established a prima facie

case of race discrimination under Title VII, Allen cannot raise a

genuine issue of material fact that Braithwaite’s legitimate, non-

discriminatory reason for failing to hire Allen was a pretext for

discrimination based on color or race. (Id. at 8-17.)

Braithwaite attaches an affidavit to support the

administrative exhaustion argument raised by his Rule 12(b)(6)

Motion. (ECF No. 25-3.) Because Braithwaite relies on matters

outside the pleadings, and because both parties have had a

reasonable opportunity to present materials pertinent to the

administrative exhaustion argument and neither party will be

surprised by the Court’s conversion, the Court treats

Braithwaite’s administrative exhaustion argument, raised under

Rule 12(b)(6), as one for summary judgment under Rule 56.2 See

2 The decision to convert Braithwaite’s motion to dismiss to one for

summary judgment is supported by the fact that Braithwaite’s Motion was

Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1105 (6th Cir.

2010) (citations omitted); Fed. R. Civ. P. 12(d).

Under Federal Rule of Civil Procedure 56(a), a court must

grant a party’s motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The moving party must show that the nonmoving party,

having had sufficient opportunity for discovery, lacks evidence to

support an essential element of its case. See Fed. R. Civ. P.

56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir.

2018).

When confronted with a properly supported motion for summary

judgment, the nonmoving party must set forth specific facts showing

that there is a genuine dispute for trial. See Fed. R. Civ. P.

56(c). “A ‘genuine’ dispute exists when the plaintiff presents

‘significant probative evidence’ ‘on which a reasonable jury could

return a verdict for her.’” EEOC v. Ford Motor Co., 782 F.3d 753,

760 (6th Cir. 2015) (en banc) (quoting Chappell v. City of

filed after the scheduling order deadline to file motions to dismiss had

passed. On March 12, 2019, the Court entered a Scheduling Order setting

June 10, 2019 as the deadline for the defendant to file motions to

dismiss. (ECF No. 17 at 1.) Braithwaite’s current Motion was not filed

until December 30, 2019 -- 203 days after the Scheduling Order’s motion

to dismiss deadline had passed. (ECF No. 25.) Braithwaite did not move

to extend or show good cause why the Court should excuse his late filing.

See Century Indem. Co. v. Begley Co., 323 F.R.D. 237, 240-42 (E.D. Ky.

2018).

Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)). The nonmoving party

must do more than simply “show that there is some metaphysical

doubt as to the material facts.” Lossia v. Flagstar Bancorp, Inc.,

895 F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

Although summary judgment must be used carefully, it “is an

integral part of the Federal Rules as a whole, which are designed

to secure the just, speedy, and inexpensive determination of every

action[,] rather than a disfavored procedural shortcut.” FDIC v.

Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009) (quotation

marks and citations omitted).

IV. Analysis

A. Administrative Exhaustion

“In permitting federal employees to sue under Title VII,

Congress conditioned the government’s waiver of sovereign immunity

upon a plaintiff’s satisfaction of ‘rigorous administrative

exhaustion requirements and time limitations.’” McFarland v.

Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (quoting Brown v.

Gen. Servs. Admin., 425 U.S. 820, 833 (1976)). “A plaintiff who

alleges that a federal agency has engaged in race discrimination

must initiate contact with an EEO counselor within forty-five days

of the date of the alleged discriminatory act.” Dixon v. Gonzales,

481 F.3d 324, 330 (6th Cir. 2007) (citing 29 C.F.R.

§ 1614.105(a)(1), and Steiner v. Henderson, 354 F.3d 432, 435 (6th

Cir. 2003)); see also Green v. Brennan, 136 S. Ct. 1769, 1774-76

(2016). “Failure to comply with this requirement is grounds for

dismissal.” Hurst v. Dep’t of Veterans Affairs, 2018 WL 4178851,

at *1 (6th Cir. July 19, 2018) (citing Steiner, 354 F.3d at 435).

Because the forty-five-day requirement is a prerequisite to filing

suit and not a jurisdictional requirement, the requirement is

subject to equitable tolling, waiver, and estoppel. See Hykes v.

Lew, 2017 WL 4863108, at *2 (6th Cir. Mar. 1, 2017) (citations

omitted); 29 C.F.R. § 1614.604(c).

In a Title VII failure-to-hire case, the forty-five-day

limitations period starts to run from the date the prospective

employer communicated to the plaintiff its decision not to hire

him, not from the date on which the plaintiff discovers that the

decision not to hire him constituted discrimination. See Amini v.

Oberlin Coll., 259 F.3d 493, 498-501 (6th Cir. 2001) (holding that

the EEOC’s 300-day limitations period ran from the date on which

the plaintiff received a letter from the prospective employer

informing him that he had not received the position, not from the

date when he discovered that the person who was hired had less

experience and was younger); see also EEOC v. United Parcel Serv.,

Inc., 249 F.3d 557, 562 (6th Cir. 2001) (“[T]he limitations period

does not begin to run on a claim for employment discrimination

until an employer makes and communicates a final decision to the

employee. Once the employee is aware or reasonably should be aware

of the employer’s decision, the limitations period commences.”)

(citations omitted); cf. Green, 136 S. Ct. at 1782 (Alito, J.,

concurring) (collecting cases holding that “the time to pursue an

employment discrimination claim starts running when a

discriminatory act occurs”).

It is undisputed that Allen first contacted an EEO counselor

on October 4, 2017. (ECF No. 31-1 ¶ 61.) The parties dispute the

date the Agency communicated its decision to Allen and when Allen

was “aware or reasonably should [have been] aware” he had not been

selected for the position. United Parcel Serv., 249 F.3d at 562;

(see ECF No. 31-1 ¶ 59.) Braithwaite submits an affidavit from

Nguyen, who says that, on May 19, 2017, she notified Allen through

USAJOBS.gov that he had not been selected for the Position. (ECF

No. 25-3 ¶¶ 1, 7.) (“That on May 19th [handwritten], 2017, Mr.

Dexter Allen was notified by the attached email, 00054-00055,

through USA Jobs that he was not selected for the GS-0080013,

Supervisory Security Specialist position at NRC.”) The email to

which Nguyen refers is not dated. (See id. at 3-4.) Allen says

he never received this email notification and testified that he

first learned that he had not been selected for the Position when

Figgs told him in September 2017. (ECF No. 27-2 at 42:5-9.) This

dispute is material. It determines whether Allen contacted an EEO

counselor within forty-five days, i.e., whether Allen timely

exhausted his administrative remedies. See 29 C.F.R.

§ 1614.105(a)(1). The dispute precludes summary judgment.

The relevant regulations mandate that the Agency extend the

forty-five-day time limit in specific situations. See 29 C.F.R.

§ 1614.105(a)(2). One of those is when the plaintiff “shows that

he . . . did not know and reasonably should not have been known

[sic] that the discriminatory matter or personnel action

occurred . . . .” Id. Allen testified that he did not know that

he had not been selected until September 2017. (ECF No. 27-2 at

42:5-9.) Whether he reasonably should have known he was not

selected for the Position before then is a question for the jury.

See Yung v. Raymark Indus., Inc., 789 F.2d 397, 398 (6th Cir.

1986).3 Braithwaite’s Motion for Summary Judgment on the issue of

untimely exhaustion of administrative remedies is DENIED.

3 Braithwaite has potentially waived his untimeliness argument because

the Agency may have addressed Allen’s complaint on the merits at the

administrative level without addressing the untimeliness defense. See

Momah v. Dominguez, 239 F. App’x 114, 121 (6th Cir. 2007) (“[W]aiver []

occur[s] ‘when the agency decides the complaint on the merits without

addressing the untimeliness defense.’”) (quoting Horton v. Potter, 369

F.3d 906, 911 (6th Cir. 2004)). In his Complaint, Allen pleads that the

Navy issued a Final Agency Decision on his administrative complaint.

(ECF No. 1 ¶¶ 16, 17.) Throughout their briefing, both parties refer

to a “Report of Investigation.” The parties include only parts of the

Report in the record. (See ECF No. 27-3 at 27-30; No. 31-2 at 1-2.) It

does not show whether the Agency “decided [Allen’s] complaint on the

merits” or addressed any untimeliness arguments. Momah, 239 F. App’x

at 121. It does appear that the EEO counselor made an initial timeliness

determination -- running the limitations period from the date Allen

“[g]ained [k]nowledge of [the] [a]ction,” and concluded that Allen’s EEO

complaint was timely. (See ECF No. 27-3 at 10.) On this record, the

Court cannot determine whether Braithwaite has waived his timeliness

defense.

B. Failure-to-Hire Claim

Title VII makes it unlawful for an employer “to fail or refuse

to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin[.]” 42 U.S.C. § 2000e-2(a)(1). To survive summary

judgment, a plaintiff must first provide direct evidence of

discrimination or establish a prima facie case, which creates an

inference of discrimination based on circumstantial evidence.

Seay v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003)

(citing Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1248

(6th Cir. 1995)). To establish a prima facie case under Title VII

for a failure-to-hire claim, a plaintiff must show that: (1) he is

a member of a protected class; (2) he applied for, and did not

receive, a job; (3) he was qualified for the job; and (4) a

similarly situated person who was not in the plaintiff’s protected

class received the job. Overall v. RadioShack Corp., 202 F. App’x

865, 868 (6th Cir. 2006); Sheppard v. Univ. of Akron, 2019 WL

2437005, at *6 (N.D. Ohio June 11, 2019).

Once a plaintiff establishes a prima facie case, the burden

shifts to the defendant to offer a legitimate, nondiscriminatory

reason for its decision not to hire the plaintiff. Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

If the defendant satisfies that burden, the burden shifts

back to the plaintiff to show that the defendant’s proffered reason

is a pretext for discrimination. Craig v. Tenn. Dep’t of

Children’s Servs., 2019 WL 4093773, at *4 (W.D. Tenn. Aug. 29,

2019) (citing Burdine, 450 U.S. at 253). “A plaintiff can

demonstrate pretext by showing that the proffered reason (1) has

no basis in fact, (2) did not actually motivate the defendant’s

challenged conduct, or (3) was insufficient to warrant the

challenged conduct.” Brewer v. Cedar Lake Lodge, Inc., 243 F.

App’x 980, 989 (6th Cir. 2007) (citing Seay, 339 F.3d at 463).

1. Prima Facie Case and Legitimate, Non-Discriminatory Reason

Braithwaite concedes that Allen can establish a prima facie

case of race and color discrimination. (See ECF No. 25-1 at 9.)

The burden shifts to Braithwaite to articulate a legitimate, non-

discriminatory reason for its failure to hire Allen. Burdine, 450

U.S. at 253. To satisfy its burden at this stage, an employer can

“simply ‘explain[] what [it] has done’ or ‘produce[] evidence of

legitimate nondiscriminatory reasons.’” Bd. of Trs. of Keene State

Coll. v. Sweeney, 439 U.S. 24, 25 n.2 (1978) (per curiam). That

burden is “slight” and “merely one of production, not persuasion;

it involves no credibility assessment.” Halfacre v. Home Depot,

U.S.A., Inc., 221 F. App’x 424, 429 (6th Cir. 2007) (citing Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).

Braithwaite offers a non-discriminatory reason for hiring

Hickman instead of Allen: Hickman was the “best qualified

candidate.” (ECF No. 25-1 at 9-14.) Braithwaite argues that

Hickman was the “best qualified candidate” because the selection

process followed the Agency’s standard hiring procedure and

Hickman’s average interview score (81) was higher than Allen’s

(80). (Id.) Braithwaite details the Agency’s hiring process for

the Position and produces scoresheets and application materials

supporting its justification for hiring Hickman. (ECF Nos. 25-

11, 25-12.) That is sufficient. See McQueen v. Barr, 782 F. App’x

459, 462 (6th Cir. 2019) (employer met burden when it filed the

candidates’ applications, detailed its hiring decision, and

explained why it chose the successful applicant over the

plaintiff). Braithwaite has satisfied his burden because

“[s]electing a more qualified candidate constitutes a legitimate,

non-discriminatory reason[].” Hawkins v. Memphis Light Gas &

Water, 520 F. App’x 316, 319 (6th Cir. 2013); Sutherland v. Mich.

Dep’t of Treasury, 344 F.3d 603, 616 (6th Cir. 2003) (“Quite

simply, the non-discriminatory reason for the decision to offer

the [] position to [the successful candidate] was that he achieved

an overall higher score than [the plaintiff] on the

interviews . . . .”).

2. Pretext

In a Title VII failure-to-hire case, “[w]hen the non-

discriminatory reason for the hiring decision is based on the

relative qualifications of the hired applicant and the plaintiff,

relative qualifications will establish triable issues of fact as

to pretext only where the evidence shows: (1) the plaintiff was a

plainly superior candidate, such that no reasonable employer would

have chosen the latter applicant over the former, or (2) plaintiff

was as qualified as, if not better qualified than, the successful

applicant, and the record contains ‘other probative evidence of

discrimination.’” Harris v. City of Akron, 2019 WL 5086127, at *3

(N.D. Ohio Oct. 10, 2019) (quoting Bartlett v. Gates, 421 F. App’x

485, 491) (6th Cir. 2010); see also Bender v. Hecht’s Dep’t Stores,

455 F.3d 612, 625-28 (6th Cir. 2006). “If a factfinder can

conclude that a reasonable employer would have found the plaintiff

to be significantly better qualified for the job, but this employer

did not, the factfinder can legitimately infer that the employer

consciously selected a less-qualified candidate — something

employers do not usually do, unless some other strong

consideration, such as discrimination, enters into the picture.”

White v. Baxter Healthcare Corp., 533 F.3d 381, 393–94 (6th Cir.

2008) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C.

Cir. 1998)).

The Agency’s hiring process and evaluation criteria show that

Allen was “as qualified as, if not better qualified than,” Hickman.

Harris, 2019 WL 5086127, at *3. Given the tabulation error, it is

undisputed that Allen scored higher than Hickman and should have

been recommended for the Position. (ECF No. 31-1 ¶ 47.) Allen

can establish pretext if he shows “other probative evidence of

discrimination.” Harris, 2019 WL 5086127, at *3; cf. Burdine, 450

U.S. at 259 (“The fact that a court may think that the employer

misjudged the qualifications of applicants does not in itself

expose him to Title VII liability, although this may be probative

of whether the employer’s reasons are pretexts for

discrimination.”).

Allen argues that discrimination was evident in his hiring

process for four different reasons: (1) the Panel for the Position

consisted of three Caucasian men, which is not normal procedure;

(2) Allen’s scores were never reconciled to address the disparity

between Harris and Mohler’s scores as compared to Blum’s; (3) when

Allen previously worked for the Agency, the team for the department

he created moved into new offices, and the only two African

Americans on the team were forced to stay in old accommodations;

and (4) Blum’s hiring history shows that he consistently refused

to hire African Americans for high-profile positions. (ECF No.

27-1 at 23-24.) There is sufficient probative evidence for Allen

to meet his burden at this stage.

Panel Composition. “[D]eviation from established policy or

practice may be evidence of pretext.” Hamilton v. McDonald, 247

F. Supp. 3d 812, 821 (E.D. Ky. 2017) (citing Dunn v. Trs. of Boston

Univ., 761 F.3d 63, 73 (1st Cir. 2014)); Dobbs-Weinstein v.

Vanderbilt Univ., 1 F. Supp. 2d 783, 799 (M.D. Tenn. 1998)

(citations omitted), aff’d, 185 F.3d 542 (6th Cir. 1999). The

BUPERS Guide dictates that panel members who make hiring decisions

should be composed of members who are of mixed gender and are

racially diverse. (ECF No. 25-10 at 10, 26; see also No. 31-1

¶ 77.) The Panel for the Position consisted of three Caucasian

men. (ECF No. 31-1 ¶ 77.) That was not normal procedure. (Id.)

Blum testified that he “didn’t feel like [the Panel was] diverse

enough.” (ECF No. 25-8 at 25:19-26:5.) He testified that this

was the first panel on which he served where all three members

were the same race and gender. (Id. at 26:18-27:2.) Harris

testified that he was “concerned about the potential appearance of

the [Panel’s] membership because the board consisted of three White

males” and that there was no “minority or female representation on

the [Panel].” (ECF No. 27-3 at 58.) This deviation from

established Agency policy governing panel make-up is probative.4

4 Braithwaite relies on a statement in White v. Columbus Metropolitan

Housing Authority that “an employer’s failure to follow self-imposed

regulations or procedures is generally insufficient to support a finding

of pretext.” 429 F.3d 232, 246 (6th Cir. 2005). That statement, however,

was in the context of policy deviations that were “minor” or

“insufficiently established.” See id. The BUPERS Guide is not a minor

policy of the Agency or insufficiently established. Although White

Reconciliation. “The fact that the interview panel members

award[] different scores — even significantly different

scores . . . — does not undermine [a] conclusion that []

applicants were simply scored by the panel members as each saw

appropriate based on the pre-determined criteria.” Sutherland,

344 F.3d at 619. However, “deviation from established policy or

practice [in reviewing those scores] may be evidence of pretext.”

Hamilton, 247 F. Supp. 3d at 821.

If there are significant differences in candidates’ résumé

scores, the BUPERS Guide dictates that panel members attempt to

reconcile their scores. (ECF No. 25-10 at 13.) “Reconcile” means

to discuss how each panel member scored the interviewee and why he

was scored that way in order to reach a consensus. (ECF No. 31-1

¶ 51.) Although the BUPERS Guide does not mandate this

reconciliation requirement for the interview process, (see id. at

14), Harris said that in his experience, it was the Agency’s custom

to reconcile disparities between interviewee scores as well as

résumé scores. (ECF No. 27-3 at 62-63 ¶ 30.) Terry Person, a

Human Resources Management and Program Assistant who was present

during Allen’s interview, said that, “if one person scores

consistently lower than the other panelists the board should

opined that the failure to follow self-imposed regulations or procedures

is “generally” insufficient to establish pretext, that does not compel

the conclusion that the failure is not probative or not sufficient when

combined with other probative evidence of pretext, as here.

discuss it and take it to the next higher authority for resolution

if they have to.” (ECF No. 31-1 ¶ 56.) Allen had a similar

understanding. (See ECF No. 27-2 at 179:3-21.) Although the

BUPERS Guide does not expressly mandate reconciliation for the

interview process, there is a dispute about whether reconciliation

was the Agency’s practice or custom.

Here, Allen received interview scores of 87 (Harris), 85

(Mohler), and 69 (Blum). (ECF No. 31-1 ¶ 41.) Given the

disparities among those scores, Allen contends that the Panel

should have tried to reconcile them, and that reconciliation never

happened. (ECF No. 27-1 at 6-13.) Person said “Mohler showed

[him] the scores,” and Person thought Mohler did that because

“Blum’s scores for [Allen] were consistently lower than the other

panelists’ scores.” (ECF No. 31-2 at 98 ¶¶ 22, 24.) Person told

Mohler, “[i]f you think [Blum’s] scores are out of line you can

talk to my supervisor . . . about it.” (Id. at 98 ¶ 24.) Mohler

said that he did not show Person Blum’s scores because they were

substantially lower than Allen’s, but “to ensure [that Person]

knew [the Panel] w[as] following the rules.” (Id. at 30 ¶¶ 37,

38.) Roberto Chang, the Human Resources Director who was present

during Allen’s interview, said he communicated to Mohler that he

thought the scores were disparate and that the Panel “may want to

go back and discuss and reconcile the scoresheets.” (ECF No. 27-

3 at 76-77 ¶ 22.) Chang said Mohler responded that the Panel

“reconciled and they were good with their scores.” (Id.) Harris

contends that no reconciliation ever took place. (ECF No. 31-1

¶ 55.) Cheney contends that he “review[ed] the scoresheets and

found no significant anomalies that would make [him] question the

integrity of the board or the process.” (ECF No. 31-2 at 14 ¶

29.)

There is a dispute about whether reconciliation occurred. It

is not disputed that the final scores submitted for Allen were

disparate. The Agency’s practice and policy of reconciliation

(including the potential custom of reconciliation during the

interview process), and deviation from it, if any, is probative.

See Hamilton, 247 F. Supp. 3d at 821.

New Offices. Allen represents that, “when the team for the

department Mr. Allen created moved into new, modern offices, the

only two African Americans on the team were forced to stay in old,

outdated and decrepit accommodations.” (ECF No. 27-1 at 23.) He

argues that, “[d]uring a conversation surrounding where certain

personnel should be placed when the new department was implemented,

[] Blum told Mr. Allen ‘you won’t always get what you want.’” (ECF

No. 31-1 ¶ 78.) Allen argues that Blum’s statement is probative

of Blum’s and the Agency’s “discriminatory animus against African

Americans.” (See ECF No. 27-1 at 23.) Braithwaite denies that

the justification for the personnel placement was due to racial

animus. (ECF No. 31-1 ¶ 76.) Braithwaite denies that Blum’s

statement is an accurate quotation. (Id. ¶ 78.)

It is undisputed that, while Allen worked for the Agency and

when some of the personnel moved into new offices, Allen and Figgs,

the only two who were African American, did not move into the new

space. (ECF No. 31-1 ¶¶ 74, 75.) Cheney, who was allegedly

responsible for that decision, says that he “directed [and] wanted

all of the team in the new office and [] Allen requested that

[Allen and Figgs] remain in the old office so they could conduct

interviews in private.” (ECF No. 31-2 at 15-16 ¶ 34.)

The reasoning behind the office space allocation and whether

Blum made the statement Allen alleges he did are disputed. That

dispute is not material because, generally, statements and facts

unrelated to a decisional process itself are not probative of

discrimination in the hiring process. See Geiger v. Tower Auto.,

579 F.3d 614, 621 (6th Cir. 2009) (“Statements by

nondecisionmakers, or statements by decisionmakers unrelated to

the decisional process itself [cannot] suffice to satisfy the

plaintiff’s burden . . . of demonstrating animus.”) (citing Bush

v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998)). Blum’s

statement, even if accurately quoted, is not probative.

Blum’s Hiring History. Allen argues that “Blum’s hiring

history shows that he consistently failed to select African

Americans for positions that would have exposure as the face of

the program.” (ECF No. 27-1 at 23-24.) Allen argues that, before

being placed on the Panel for the Position, Blum had been the

selection official for positions filled by three African American

applicants, but that those positions “were support positions, not

positions that would be outward-facing or that held any real

responsibility or authority.” (Id. at 24.) Allen does not provide

evidence of the relative qualifications of those applicants or

provide other evidence that Blum’s decisions in those cases were

influenced by racial animus. This fact is not probative.

Scoring. Allen refers to a fifth probative fact: that Person

believed Blum “intentionally scored [Allen] lower so he would not

be selected for the [P]osition.” (ECF No. 31-2 at 99 ¶ 26-27.)

Blum explained that his scores were awarded based on Allen’s

answers and Blum’s conclusion that, when compared to Allen, Hickman

“came across as very well-spoken,” “clear,” “answered more of the

questions completely,” and “did a better overall job of tying in

his experiences with what he was saying.” (ECF No. 25-8 at 69:9-

20.) Person believes that Blum’s justification is pretextual

because “[Allen] was the only candidate Mr. Blum scored

consistently lower.” (ECF No. 31-2 at 98 ¶ 22.) Person said it

was a “possibility” that Allen’s race and color were factors in

Blum’s scoring. (Id. at 101 ¶ 32.) That is probative.

There is evidence that Allen was as qualified as, or better

qualified than Hickman. Allen has provided probative evidence of

discrimination. That is normally enough for Allen to establish

pretext. See Harris, 2019 WL 5086127, at *3; see also Jenkins v.

Nashville Pub. Radio, 106 F. App’x 991, 995 (6th Cir. 2004)

(genuine dispute of material fact as to pretext when the plaintiff

provided evidence of irregularities in the hiring selection

process, inconsistencies in the reasons given by the defendant for

not hiring the plaintiff, and the lack of African American women

in supervisory positions at the defendant’s business, as well as

evidence of her allegedly superior qualifications). Braithwaite

argues, however, that Allen cannot establish pretext as a matter

of law because of the honest belief rule.

3. Honest Belief Rule

This Circuit has adopted an honest belief rule, which provides

that an employer may “‘avoid a finding that its claimed

nondiscriminatory reason was pretextual’ if it establishes that it

‘reasonabl[y] reli[ed] on the particularized facts that were

before it at the time the decision was made,’ even if evidence

later shows that the reason was baseless.” Yazdian v. ConMed

Endoscopic Techs., Inc., 793 F.3d 634, 653 (6th Cir. 2015) (quoting

Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006)).

“The rationale behind the rule is that the focus of a

discrimination suit is on the intent of the employer.” Smith v.

Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). “If the

employer honestly, albeit mistakenly, believes in the non-

discriminatory reason it relied upon in making its employment

decision, then the employer arguably lacks the necessary

discriminatory intent.” Id. That is true even if the employer’s

“conclusion is later shown to be ‘mistaken, foolish, trivial, or

baseless.’” Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th

Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th

Cir. 2009)). “The key inquiry . . . is whether the employer made

a reasonably informed and considered decision before taking the

complained-of action.” Id. (quotation marks and citations

omitted).

If the employer establishes its honest belief, “[t]he

employee, in turn, ‘must be afforded the opportunity to produce

evidence to the contrary, such as an error on the part of the

employer that is too obvious to be unintentional.’” Blizzard v.

Marion Tech. Coll., 698 F.3d 275, 286 (6th Cir. 2012) (quoting

Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 286 (6th Cir.

2012)). “[T]he employee must allege more than a dispute over the

facts upon which the discharge was based. He must put forth

evidence which demonstrates that the employer did not ‘honestly

believe’ in the proffered non-discriminatory reason for its

adverse employment action.” Id. (citing Braithwaite v. Timken

Co., 258 F.3d 488, 494 (6th Cir. 2001)).

Here, Braithwaite argues that there is no evidence that race

was a factor in the hiring process and that, although the correct

tabulation shows Allen should have scored higher than Hickman,

there is no evidence that the incorrect tabulation was on purpose

or ignored as a pretext for discrimination. Braithwaite argues

that it was the Agency’s honest belief that Hickman was the best

qualified candidate due to his higher score. (ECF No. 31 at 3-

10.) Braithwaite argues that, although “the [hiring] process was

not perfect, the decision was a reasonably informed and considered

one” because the Agency went through an extensive interview process

with multiple steps. (See id. at 3-4.)

Allen argues that there were a “number of failings at various

stages of the selection process, including failure to verify resume

information, failure of basic math, and a failure to abide by

standard operating procedures regarding reconciliation[,] . . .

[and that] [t]hese failures demonstrate . . . that the selection

procedure [was] not a reasonably informed process.” (ECF No. 27-

1 at 25.)

The record can support a finding that the Agency honestly

believed that Hickman was the best qualified candidate. It is

true that the Agency’s ultimate hiring decision was later shown to

be mistaken and that some of the failures Allen mentions led to

that mistake. Those “mistake[s],” alone, however, would be

insufficient to show that the Agency’s process was not reasonably

informed and that it did not honestly believe in its decision.

See Tingle, 692 F.3d at 531. The Agency has shown that it made a

“reasonably informed and considered decision” before selecting

Hickman. Id. The burden shifts to Allen to “produce sufficient

evidence from which the jury could reasonably reject [the Agency’s]

explanation and infer that the [Agency] . . . did not honestly

believe in” the alleged nondiscriminatory reasons for its

decision. Id. (quotation marks omitted) (citing Braithwaite, 258

F.3d at 493–94).

There is evidence in the record on which a jury could rely to

reasonably reject the Agency’s asserted belief that Hickman was

the best qualified candidate. First, a jury could conclude that

Blum did not honestly believe that Hickman was more qualified than

Allen in his scoring of the interviewees’ answers. As discussed

supra, Person, who was in the room when Allen and Hickman were

interviewed and listened to all of the interview answers, believed

that Blum intentionally scored Allen lower so he would not be

selected for the Position. (ECF No. 31-2 at 99 ¶¶ 26-27.) If

Person, who had first-hand exposure to the interviews, believed

that Blum intentionally scored Allen lower, it is reasonable that

a jury could believe so.

Second, there is evidence in the record that the Agency did

not adhere to its custom of reconciling disparate interview scores.

If the Agency had a custom of reconciling disparate interview

scores, and did not do so here, a jury could find that the Agency

did not honestly believe that it was making a “reasonably informed

and considered decision.” See Tingle, 692 F.3d at 531.

Third, there is evidence that Cheney, who was one of the

ultimate decisionmakers for the Position, might not have believed

that Hickman was the best qualified candidate. Cheney said he

expected Allen to “come out at number one in the resume and

interview process” and that he “was actually hoping [Allen] would

be selected for the job.” (ECF No. 25-13 at 8 ¶ 22; id. at 15

¶ 40.) Cheney said that, “because [Allen] did not score the

highest [he] had to pick someone else” because “[t]o select [Allen]

over the highest scoring candidate would have been unethical and

in [his] opinion would have resulted in a legitimate EEO complaint

or grievance from the other person.” (Id. at 8 ¶ 22.) A jury

could reasonably conclude that Cheney did not honestly believe

that Hickman was the best qualified candidate for the Position.

Although the Agency has asserted an honest belief that Hickman

was the best qualified candidate, Allen has put forth evidence on

which a reasonable jury could “reject [the Agency’s] explanation

and infer that the [Agency] . . . did not honestly believe in” the

alleged nondiscriminatory reasons for its decision. Tingle, 692

F.3d at 531. Braithwaite’s Motion for Summary Judgment on the

merits is DENIED.

V. Conclusion

For the foregoing reasons, Braithwaite’s Motion to Dismiss,

or in the alternative, Motion for Summary Judgment, is DENIED.

So ordered this 14th day of July, 2020.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE