plaintiff’s prima facie burden “is not onerous”
How later courts described this case
- plaintiff’s prima facie burden “is not onerous”
Written by the judges who cited it.
The opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 25a0263n.06
Nos. 24-1478/1503
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
May 27, 2025
) KELLY L. STEPHENS, Clerk
GAYANN MILLER,
)
Plaintiff-Appellee/Cross-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
SUBURBAN MOBILITY AUTHORITY FOR ) DISTRICT OF MICHIGAN
REGIONAL TRANSPORTATION (SMART), )
) OPINION
Defendant-Appellant/Cross-Appellee.
)
)
Before: BOGGS, GRIFFIN, and NALBANDIAN, Circuit Judges.
GRIFFIN, Circuit Judge.
A jury concluded that defendant Suburban Mobility Authority for Regional Transportation
(SMART) discriminated against plaintiff Gayann Miller on the basis of her race when it declined
to promote her. Following trial, the district court awarded Miller attorney fees and costs—albeit
less than she requested. SMART raises many issues on appeal, including the jury’s liability
finding, the introduction of certain evidence, the propriety of plaintiff’s closing statements, the
exclusion of an African American juror, and the reasonableness of the attorney-fee award. Miller
cross appeals, contending that the district court should not have reduced her attorney-fee request.
We affirm.
I.
We turn first to SMART’s contention that the district court erred in denying its motion for
judgment as a matter of law under Federal Rule of Civil Procedure 50 following the entry of the
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jury’s verdict against SMART on Miller’s race-discrimination claims under federal and Michigan
law. We find no error.
A.
Judgment as a matter of law following trial is appropriate where the jury “would not have
a legally sufficient evidentiary basis to find for the [nonmoving] party.” Fed. R. Civ. P. 50(a)(1).
Courts must “review all of the evidence in the record” and “draw all reasonable inferences in favor
of the nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
We “may not make credibility determinations or weigh the evidence.” Id. Instead, we must
“disregard all evidence favorable to the moving party that the jury is not required to believe.” Id.
at 151. “That is, the court should give credence to the evidence favoring the nonmovant as well
as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to
the extent that that evidence comes from disinterested witnesses.” Id. (internal quotation marks
omitted). We review the district court’s resolution of SMART’s Rule 50 motion de novo. Noble
v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir. 2004).
B.
At trial, Miller prevailed on race-discrimination claims under both Title VII of the Civil
Rights Act of 1964 and Michigan’s Elliott-Larsen Civil Rights Act, which prohibit employers from
discriminating against employees “because of” race. 42 U.S.C. § 2000e-2(a)(1); Mich. Comp.
Laws § 37.2202(1)(a). We apply “the same evidentiary framework” to discrimination claims
brought under each statute. Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 652 (6th Cir.
2012) (internal quotation marks omitted).
The traditional burden-shifting framework articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), “established an allocation of the burden of production and an order
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for the presentation of proof in Title VII discriminatory-treatment cases.” St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 506 (1993). Under this framework, a plaintiff must first establish by a
preponderance of the evidence a prima facie case of discrimination. Id. In a race discrimination
case, that requires proof that (i) she was a member of a protected class, (ii) she was qualified for
the job to which she applied, (iii) she was rejected despite her qualifications, and (iv) she was
treated differently from similarly situated employees who are not a member of her protected class.
McDonnell Douglas, 411 U.S. at 802. If the plaintiff is successful, the burden shifts to the
employer to offer a “legitimate, nondiscriminatory reason” for the adverse employment action.
Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981) (internal quotation marks omitted).
“This burden is one of production, not persuasion; it can involve no credibility assessment.”
Reeves, 530 U.S. at 142 (internal quotation marks omitted). If the employer meets its burden, the
burden shifts back to the employee to prove that the employer’s reason was pretextual. Burdine,
450 U.S. at 253.
McDonnell Douglas is an evidentiary tool relevant to summary judgment. St. Mary’s,
509 U.S. at 506–07. But this appeal comes to us post-jury verdict, and Reeves instructs how to
determine whether a plaintiff has carried her ultimate burden of persuasion. 530 U.S. at 142–43.
Once the plaintiff offers admissible evidence to establish a prima facie case, and the employer, in
turn, “offer[s] admissible evidence sufficient for the trier of fact to conclude” that the employer
had a legitimate, nondiscriminatory reason for the adverse action, “the McDonnell Douglas
framework—with its presumptions and burdens—disappear[s], and the sole remaining issue
[becomes] discrimination vel non.” Id. (internal quotation marks and citations omitted).
Still, that does not mean the prima facie case becomes irrelevant. Indeed, it remains
essential to both evaluating a motion for judgment as a matter of law under Rule 50, and the
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sufficiency of the evidence supporting a judgment on appeal. See id. at 148–49, 152. Reeves
reiterates that when a party appeals a Rule 50 motion, the reviewing court must look at “the
evidence supporting the [employee’s] prima facie case and undermining [the employer’s]
nondiscriminatory explanation.” Id. In other words, the prima facie case becomes part of a slightly
different inquiry—that is, the inquiry proceeds “to a new level of specificity.” Aikens, 460 U.S. at
715. Rather than looking at each prima facie element for its own sake, the strength or weakness
of the proof now informs the larger question under Title VII: was the employee terminated because
of a protected characteristic?
C.
With this framework in mind, we turn to the facts supporting the jury’s verdict. Miller has
driven buses for SMART, the public bus authority serving suburban Detroit, since 2015. At issue
is her 2019 application for promotion to one of two open road-supervisor positions. SMART
ultimately promoted two African American individuals—Vernon Williams and Terri Brown—
over Miller, who is Caucasian.
The promotion process for these positions consisted of a panel (composed of SMART
managers, human-resources personnel, and the transportation director) conducting two rounds of
interviews. The panel made decisions after discussing each candidate and agreeing—based on
their subjective beliefs, such as whether the interviewee was “confident” or “articulate”—who
would be best for the position. Notably, it did not rely on objective or uniform criteria to make its
decision.
Miller satisfied the minimum qualifications for a road-supervisor position, so she received
a first-round interview. But the interview panel did not advance her to the second round of
interviews because, in its view, her performance was “hesitant” and “timid” and her interview
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answers were “incorrect[]” and lacking in detail. For example, when asked what a road supervisor
should do upon arriving at an accident involving multiple injured people, Miller answered that she
would first check on the bus driver. SMART asserts that this incorrect answer disqualified Miller
from the road-supervisor position—road supervisors apparently should first evaluate injured
individuals.
That justification, contends Miller, was pretextual. Her theory of the case is that Carol
Martin—her supervisor and a member of the interview panel—decided whom to promote and
considered applicants’ races to make the decision. The most damning evidence of discrimination
came from Miller’s coworker, Gerald Burns. He testified that some time before the promotion
decision, Martin told him that a “white girl . . . would never get a position under her watch.”1
In addition to Burns’s direct evidence, several witnesses testified that SMART did not
promote a single Caucasian driver while Martin worked there. Take, for example, Matt Kauppila’s
experience. Kauppila is a Caucasian bus driver and one of Miller’s colleagues; he testified that he
approached Martin around 2018 about applying for a master-trainer position. Although Kauppila
met the minimum qualifications to apply, Martin told him that he should not bother applying
because he would not get the position. Indeed, he applied and did not receive an interview. Vernon
Williams, one of the people who was promoted ahead of Miller, received the master-trainer
position despite having less experience than Kauppila. It was not until after Martin retired that
Kauppila re-applied, was invited to interview, and received the promotion. Similarly, another
Caucasian driver, Rick Sauer, applied seven times for a promotion and, under Martin’s
supervision, “was denied every time.” Kauppila summarized that “it’s sad because anyone during
1
Although SMART argues that Martin’s alleged prejudicial statement to Burns took place
in 2020 or 2021, after the decision not to promote Miller was made, the evidence construed in
Miller’s favor indicates that Martin made the statement in 2019 before the promotion interview.
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Carol Martin’s watch, anyone who was promoted, was African American. Anyone who was
denied, was white. I mean, it’s just a fact.”
Miller also introduced significant evidence that SMART promoted less-qualified
candidates. Vernon Williams had only a little over a year of experience driving for SMART while
Miller had worked at SMART for four years. The jury also heard that Williams was involved in
several accidents, including hitting a public-transit streetcar, failing to report an accident, leaving
an accident scene, and falling asleep at the wheel. These infractions were far more serious than
Miller’s—she once hit a mirror and clipped the back end of a car. Critically, Williams’s accident
history was absent from the file that Martin presented to the interview panel. And Terri Brown,
the other African American individual promoted over Miller, allegedly “had a lot of issues with
passengers” and “always tried to get out of work.” Brown also had about a year less experience
at SMART than Miller did. The jury therefore could have reasonably concluded that Williams
and Brown were not the superior candidates.
Further evidence demonstrated that SMART’s reason for promoting Williams over Miller
was pretextual. Recall the apparently important accident-response question that Miller answered
incorrectly during her interview. Williams also got it wrong: he stated he would “[t]ry to
maneuver the situation and let them know I understand. I would take hold of the situation.” Leeya
Sutter, a human-resources representative, confirmed that Williams’s answer to that question was
incorrect and that his similar answers to other scenario-based questions were also inadequate.
Nevertheless, the hiring panel indicated that Williams’s answers were “strong” and “detailed.”
Moreover, SMART asserted that it did not promote Miller because of several incidents of
misconduct, such as urinating in a cup while driving a bus and failing to complete certain routes.
But those incidents occurred after the 2019 promotion decision. The panel therefore could not
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have factored those incidents into SMART’s decision not to promote Miller—and, as the district
court pointed out, SMART’s notes from Miller’s interview “did not contain any of these
allegations.” When an employer shifts its reasoning after the fact, a rational juror can use that
“post-hoc” justification to find pretext. See Briggs v. Univ. of Cincinnati, 11 F.4th 498, 513
(6th Cir. 2021).
Thus, we agree with the district court that a reasonable jury could find that SMART’s
nondiscriminatory reason for not promoting Miller was pretextual.
SMART’s repeated assertions that Miller failed to establish an element of her prima facie
case—that she was qualified for the position—does not change this conclusion. Whether Miller
provided “evidence of an essential element of her prima facie case” is not “dispositive” when we
review a district court’s denial of a motion for judgment as a matter of law. Gray v. Toshiba Am.
Consumer Prods., Inc., 263 F.3d 595, 599 (6th Cir. 2001). Rather at this stage, if Miller were not
qualified for the road-supervisor position, this would inform whether she had sustained her burden
of showing SMART intentionally discriminated against her. Noble, 391 F.3d at 727–28 (“[T]he
evidentiary underpinnings of a plaintiff’s prima facie case are [not] irrelevant or insulated from
examination by this court to aid its determination whether the evidence in toto is sufficient to
support a finding of intentional discrimination.”).
But SMART’s argument fails on the facts. Miller had to show that she satisfied SMART’s
“objective qualifications.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575 (6th Cir.
2003). This refers to the minimum, objective criteria—such as education, relevant experience, and
skills—that informed who was given a first-round interview. See id. at 576. SMART concedes
that Miller satisfied HR’s “minimum qualifications” for the road-supervisor position because
Miller received an interview.
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SMART insists that Miller prove more. It claims Miller was not qualified because she
lacked the “subjective” criteria necessary for a second interview. Culver v. CCL Label, Inc.,
455 F. App’x 625, 628 (6th Cir. 2012). In its view, she was not “qualified”—for Title VII
purposes—because Miller was “timid,” and based on her interview, she was “far from the most
qualified applicant for the position.” But she did not need to show that she was the most qualified
person to establish her prima facie case. See Burdine, 450 U.S. at 253 (plaintiff’s prima facie
burden “is not onerous”). That there were allegedly more-qualified candidates competing for the
position is relevant only to SMART’s nondiscriminatory reason for its promotion decision. And
as explained, there was overwhelming evidence of SMART’s shifting justifications and pretext
motivating its rejection of Miller’s application. So even if others were more qualified, a jury could
reasonably have determined that this did not undermine all the other circumstantial evidence put
forward by Miller that her race prevented her promotion. At bottom, “our duty . . . is simply to
determine whether [Miller] produced sufficient evidence to support the jury’s finding of
intentional discrimination.” Noble, 391 F.3d at 721. She did.
II.
The next issue on appeal concerns Gerald Burns’s testimony. Recall that he was Miller’s
coworker who testified at trial that Martin told him that “a white girl . . . would never get a position
under her watch.” SMART asserts that the district court should not have permitted Burns to testify
at trial due to discovery violations by plaintiff’s counsel, and in turn, that the district court’s
decision to the contrary was so unfair that a new trial is warranted under Federal Rule of Civil
Procedure 59. We disagree.
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A.
Miller’s attorney first deposed Burns virtually in May 2021. During that deposition, Burns
disclaimed any knowledge of Martin holding racially biased views. But in a de bene esse
deposition two years later in September 2023, Burns stated the opposite: he testified then that
Martin told him—in the context of her hiring employees for the road-supervisor position—“I
would never hire a white person under my watch.” When asked to explain his prior lie, Burns
testified that, at the time, he was nearing retirement and “didn’t want to say anything that would
jeopardize [his] job” or retirement benefits. He also stated that an attorney for SMART
intentionally kicked his foot and tapped his knee during that line of questioning to get him to “shut
up” and “be quiet.”
Following this deposition, SMART moved for sanctions under Federal Rule of Civil
Procedure 37 based on Miller’s failure to disclose and supplement Burns’s contradictory
testimony. According to SMART, Miller’s attorneys knew about this issue five months before
noticing the de bene esse trial deposition but did not supplement plaintiff’s Rule 26 disclosures.
The district court initially declined to award sanctions, writing that “Burns’s cancer treatments
obviated the need for his de bene esse deposition and given his abrupt change in testimony—which
plainly contradicts the testimony he gave in his discovery deposition—the Court finds that the
untimely disclosure was substantially justified” under Rule 37(c)(1). But the district court
adjourned trial and reopened discovery “for the limited purpose of determining the full scope of
the reasons for Burns’s change in testimony.”
So SMART deposed Burns—now his third deposition—in November 2023. There, he
gave contradictory testimony concerning the timing of who knew what and when. He first testified
that when he sat for his de bene esse deposition, “no one” knew that he was going to change his
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testimony, that he had informed Miller’s attorney about having cancer just “prior” to that
deposition, and that he first met with Miller’s attorney the day of that deposition (but might have
talked with him before via phone). But he later clarified—at the suggestion of Miller’s attorney—
that he recalled an interview with Miller’s attorney (who said it occurred on April 5) to discuss his
“testimony” and “diagnosis.”
SMART again moved for sanctions. This time, the district court sided with SMART. It
concluded that Miller “discovered in April 2023 that Burns would potentially be unavailable and
that he was fundamentally changing his testimony” and “did not disclose this information until
September 5, 2023, a month before trial was scheduled to commence.” This conduct, the district
court concluded, “was the result of gamesmanship, rather than any justifiable mistake.” So, under
Rule 37(c)(1), the district court found that “[p]laintiff’s failure to supplement her disclosure of
Burns as a witness [wa]s not substantially justified.” It then struck Burns’s deposition testimony
and struck him from the witness list. So Burns would “not be permitted to testify at trial.”
Miller moved for reconsideration. She claimed that Burns was now available to testify at
trial (because he was no longer hospitalized for back surgery), thus obviating the need for a de
bene esse deposition. After hearing more argument, the district court reversed its decision in an
oral statement from the bench, anchoring its reconsideration on harmlessness grounds. While it
initially prohibited Burns from testifying due to the discovery violation, the court found that the
violation was “cured” by the subsequent deposition and his availability for trial.
Burns testified at trial and was subject to impeachment given his prior inconsistent
statements—he expressly told the jury that he “lied” under oath during his first deposition when
he did not reveal what Martin said to him. Following the jury’s verdict, SMART moved for a new
trial under Rule 59, arguing that the district court should not have allowed Burns to testify.
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Specifically, it argued that Rule 37 mandated sanctions unless Miller established either
harmlessness or substantial justification, and yet the district court excused compliance because it
found that Burns was now available to testify. In denying SMART’s motion for judgment as a
matter for law, the district court concluded that there was a lack of prejudice on SMART’s behalf
because it “had a full opportunity to cross examine Burns at trial about his contradictory testimony
and explore his credibility. . . . Moreover, the Court allowed Defendant an opportunity to re-
depose Burns and adjourned the trial to give Defendant time to conduct Burns’ third deposition.”
B.
Rule 59 permits a district court to grant a new trial following a jury verdict “for any reason
for which a new trial has heretofore been granted in an action at law in federal court.” So Rule 59
warrants a new trial when the jury’s result is “seriously erroneous.” Mosby-Meachem v. Memphis
Light, Gas & Water Div., 883 F.3d 595, 606 (6th Cir. 2018) (internal quotation marks omitted).
For proof, we look to: “(1) the verdict being against the weight of the evidence; (2) the damages
being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the
proceedings being influenced by prejudice or bias.” Id. SMART bears the burden to establish
prejudice. See Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir. 2004). We review
the district court’s denial of SMART’s Rule 59(a) motion for an abuse of discretion. Pittington v.
Great Smoky Mountain Lumberjack Feud, LLC, 880 F.3d 791, 798–99 (6th Cir. 2018). An abuse
of discretion occurs “if the district court relies on clearly erroneous findings of fact, applies the
wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes
a clear error of judgment.” Id. at 799 (internal quotation marks omitted).
The district court did not abuse its discretion by concluding that its decision allowing Burns
to testify was not so unfair as to warrant a new trial. First, his statement about what Martin told
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him was raised at trial during cross-examination of Miller’s testimony. Martin was also asked
about, and denied making, that statement during her testimony. So, regardless of whether Burns
testified, the jury heard an inference as to Miller’s best direct evidence of discrimination—Martin’s
racially prejudicial comment to Burns.
Second, SMART knew in advance of trial that Burns had flipped his testimony and so had
time to prepare accordingly. It was twice able to cross-examine him during depositions, allowing
it to probe Burns on his inconsistent statements to tee up impeachment during trial. And it did
impeach Burns; so, the district court’s orders concerning Burns helped SMART prepare its
defense.
SMART pushes back, contending that the Federal Rules of Civil Procedure governing
discovery—Rules 26 (disclosures) and 37 (sanctionable conduct)—required the district court to
sanction Miller once it found her attorney’s conduct rose to the level of “gamesmanship.” But
district courts have broad discretion when managing discovery issues, RJ Control Consultants,
Inc. v. Multiject, LLC, 100 F.4th 659, 668–69 (6th Cir. 2024), and exclusion of tardily disclosed
evidence is not mandatory, Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015).
Significantly, the district court’s modification of the trial schedule and permitting an additional
deposition of Burns “cure[d] the surprise.” Id. at 748 (internal quotation marks omitted). In short,
any discovery violation was harmless. Therefore, the district court did not abuse its discretion in
concluding that Burns’s testimony was not so unfair that a new trial was warranted under Rule 59.
See Meat Town Inc. v. Sentinel Ins., 852 F. App’x 925, 941–42 (6th Cir. 2021) (finding no abuse
of discretion when a party failed to timely disclose witness affidavits because the district court
modified its scheduling order to allow for additional depositions instead of striking testimony).
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III.
SMART next argues that plaintiff’s counsel made improper statements during his closing,
warranting a new trial under Rule 59. It focuses on this comment concerning SMART’s “process”
for making the promotion decisions: “Then they talked about the design of this process . . . . This
process is terrible. There’s no notes of any decisions. There’s no video of anything for you to
look at.” SMART objected, referencing the district court’s prior dismissal at summary judgment
of Miller’s disparate-impact claims, which alleged SMART’s decisional processes disparately
impacted Caucasians. The district court overruled the objection and permitted plaintiff’s attorney
to continue:
That makes it — and again, that process was terrible. I can’t show you any
documentation at all about the first round cuts. I can’t show you any of the
discussions. I can’t show you video. I mean, in a public-funded entity that’s got
millions and millions of dollars in funding they could have done a lot better job of
giving us actually what happened at the interviews.
But what we know what happened at the interviews is that a buddy of one of the
guys came in, a guy that he played high school sports with, and there was no recusal.
There were no forms for anybody to sign indicating that they didn’t know any of
the applicants. There were no forms that anybody had to sign that they had all the
evidence. And what we know is that they didn’t have all the evidence about Vernon
Williams who they hired for the job. And we know that because the [interview
notes] clearly show[] that Vernon Williams’ file was not the same as anybody else’s
file.
According to SMART, these words were “an unfettered cheap shot, unsupported by evidence,
[that] denigrate[d] SMART and . . . suggest[ed] to the jury that not only was Plaintiff the ‘victim’
of a bad promotion process . . . but that SMART could afford to pay for a better process and by
extension, could afford to pay Plaintiff for her perceived slights.” For this reason, SMART argued,
the jury’s verdict should be set aside.
The district court considered and rejected this argument when it denied SMART’s motion
for judgment as a matter of law. It concluded that these comments were, at best, “isolated”; noted
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that it twice instructed the jury “that the lawyers’ statements, commentaries, and arguments are
not evidence”; and, most importantly, found the argument to be proper: “[I]t was not error for
Plaintiff to point out the lack of an objective process in making the promotion decision herein, as
it is evidence of pretext. Here, a major aspect of Defendant’s defense was its interview process.”
We discern no abuse of discretion in this determination. See Balsley v. LFP, Inc., 691 F.3d
747, 761 (6th Cir. 2012). The district court found the remarks proper given the relationship
between Miller’s pretextual claims and SMART’s lack of an objective employment-decision
process. SMART does not engage with this reasoning and thus has not preserved the issue for
appeal—failing to “advance[] any sort of argument for the reversal of the district court[],” Geboy
v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007), or “cogent” claim that the district court got it wrong
“constitutes abandonment,” Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016). Even if the
remarks were improper, the district court instructed the jurors not to consider counsel’s arguments
as evidence, see Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., 641 F.3d 240, 249–50 (6th
Cir. 2011), and the totality of the circumstances do not indicate “a reasonable probability” that the
jury’s verdict was influenced by the comments, Jones v. Kent County, 115 F.4th 504, 516 (6th Cir.
2024) (citation omitted). Indeed, SMART makes no effort to demonstrate jury influence. Thus,
plaintiff’s attorney’s inconsequential closing remarks do not require a new trial.
IV.
Next, SMART takes issue with the district court’s resolution of its contention that Miller
pretextually struck the sole African American person from the jury pool. For this purported error,
it again claims that a new trial is warranted.
“The Constitution forbids striking even a single prospective juror for a discriminatory
purpose,” Flowers v. Mississippi, 588 U.S. 284, 303 (2019), and this prohibition extends to civil
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cases, see Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630 (1991). Under Batson v.
Kentucky, 476 U.S. 79 (1986), courts conduct a three-step inquiry when evaluating an assertion
that a party unlawfully used a peremptory strike for race-based reasons: (1) the opponent must
establish a prima face case of discrimination; (2) the proponent must offer a race-neutral
explanation for the strike; and (3) the district court must determine whether the proponent’s neutral
explanation was the actual reason or mere pretext for discrimination. See id. at 97–98. “The
ultimate inquiry is whether the [proponent] was motivated in substantial part by discriminatory
intent.” Flowers, 588 U.S. at 303 (internal quotation marks omitted).
During voir dire, the district court polled potential jurors on their views of prejudice. In
response, the juror in question stated, “Yes, I believe in some way[s] minorities can be prejudice[d]
towards non-minorities.” Miller used her second peremptory challenge on that prospective juror,
explaining (after SMART objected under Batson) that there were multiple grounds warranting her
dismissal: (1) the juror “had quite a pause,” “pursed her lips,” and “really had to think about” the
prejudice question; (2) the juror “had been a victim of discrimination” when someone “called her
the N-word”; (3) her “brother drove for SMART”; (4) she indicated that she “had some economic
hardship” that would make jury duty challenging. Later, plaintiff’s attorney elaborated that it was
his “recollection [that] she’s the only person that paused” and then said “well, sometimes” when
answering the prejudice question.
The district court found SMART’s objection to be without merit, concluding that this
explanation satisfied plaintiff’s burden to establish that it struck this juror for non-racial reasons.
We evaluate SMART’s objection to the district court’s no-pretext determination for clear error.
See Snyder v. Louisiana, 552 U.S. 472, 474 (2008).
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SMART argues that “the only explanation Plaintiff’s counsel could initially muster for his
decision to use a peremptory challenge on [the juror at issue] was that she ‘paused’ before
answering that she believed minorities could be prejudiced against non-minorities.” But that
assertion is plainly incorrect—plaintiff’s attorney offered several race-neutral reasons for striking
the juror. SMART also does not offer any argument concerning why the district court’s rejection
of its Batson challenge rises to the level of clear error, so this issue too is abandoned. See Burley,
834 F.3d at 618. So we need not consider SMART’s new arguments raised for the first time in its
reply. See Bormuth v. County of Jackson, 870 F.3d 494, 500 (6th Cir. 2017) (en banc).
V.
A.
The last issue on appeal, which is also subject to Miller’s cross-appeal, concerns the district
court’s award of attorney fees and costs of $185,427.16.
An attorney fee award must be “reasonable.” Adcock-Ladd v. Sec’y of Treas., 227 F.3d
343, 349 (6th Cir. 2000) (internal quotation marks omitted). Courts use the “lodestar” method to
calculate reasonable attorney fees. Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). This
method has three steps. See id. First, a court multiplies a reasonable hourly rate for each attorney
who represented the prevailing party by the number of hours that the particular attorney worked
on the case. Id. This calculation creates a total amount of fees that each attorney generated. Id.
Next, the court adds together those total amounts to get a grand total—the lodestar amount—of
what it cost the prevailing party to win. Id. at 792. This amount then anchors the last step by giving
the court a starting number, after which the court evaluates the case’s unique aspects to determine
whether to adjust the award. Hensley v. Eckerhart, 461 U.S. 424, 433–35 (1983).
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A party seeking fees must justify the amount of its request. Reed v. Rhodes, 179 F.3d 453,
472 (6th Cir. 1999). This burden requires evidence of the number of hours each attorney
reasonably worked and the appropriate hourly rate for that work. Hensley, 461 U.S. at 433. In the
absence of such evidence, a district court may reduce the award. Id. We review the district court’s
attorney-fee award for abuse of discretion. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,
551 (6th Cir. 2008). A district court has the “superior understanding of the litigation,” Hensley,
461 U.S. at 437, and thus its “exercise of discretion is entitled to substantial deference because the
rationale for the award is predominately fact-driven,” Imwalle, 515 F.3d at 551.
B.
Following the jury verdict, Miller sought $428,466.66 in fees and costs under 42 U.S.C.
§ 2000e5(k) and Mich. Comp. Laws § 37.2802. Two attorneys represented the bulk of that
request: James Rasor asked for $259,110 (172.74 hours at $1,500/hour), and Amanda Washburn
requested $78,975 (175.5 hours at $450/hour). Miller supported this request (and even asked for
an “upward adjustment of the lodestar”) not with a fee study on prevailing market rates, but rather
by conclusively asserting that Rasor “is a 95th percentile lawyer who reliably nets multi-million-
dollar verdicts,” “prevailed at every critical stage of these proceedings,” and “did an excellent job,”
and that the “case required an enormous amount of time to collect, organize, and present to the
Court.”
The district court granted Miller’s fee and cost request but substantially reduced the final
amount awarded. Several factors influenced the decision: (1) only one of Miller’s three claims
survived summary judgment; (2) the jury’s verdict was “less than 5% of the total amount Plaintiff’s
counsel argued the jury should award”; (3) Miller failed to “provide any analysis of how [Rasor’s]
high hourly rate [wa]s consistent with the prevailing market rates”; (4) significant time billed by
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two timekeepers (including Washburn) occurred when they were not licensed attorneys; and
(5) many requested fees for support staff were “unreasonable and represent[ed] duplicative work.”
So the district court calculated the lodestar by reducing the hourly rate (and some hours) and
awarded the following fee schedule instead: James Rasor—$103,200 (172.74 hours at $600/hour);
Amanda Washburn (pre-law license)—$6,700 (67 hours at $100/hour); Amanda Washburn (post-
law license)—$27,066 (108 hours at $250/hour); among other attorneys, for a grand total of
$185,427.16 in attorney fees and costs.
C.
On appeal, SMART takes no issue with the rates charged or hours awarded. Instead,
SMART claims that the district court should not have awarded any fees because Miller obtained
limited success. But “[l]itigants in good faith may raise alternative legal grounds for a desired
outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason
for reducing the fee. The result is what matters.” DiLaura v. Township of Ann Arbor, 471 F.3d
666, 672 (6th Cir. 2006) (citation omitted). And here, Miller obtained a substantial result—a jury’s
finding that it racially discriminated against her and an award of several hundred thousand dollars.
There was no abuse of discretion by the district court in awarding some attorney fees to Miller.2
On cross-appeal, Miller challenges the district court’s reduction of her fee request. She
mainly contends that the district court erroneously concluded that she had asked for a sum certain
and thus the district court erred in concluding that she obtained only five percent of what she asked
2
SMART also contends that the district court should have declined to award any fees
because of plaintiff’s counsel’s discovery malfeasance connected with Burns’s testimony
discussed above. But it offers no caselaw supporting the argument that a district court abuses its
discretion in awarding fees in such a scenario.
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for when stating that she had achieved only “limited success.”3 This bare assertion is not enough
to overcome abuse-of-discretion review. The district court extensively discussed why the rates
that Miller sought were out of line with prevailing market rates, and Miller does not challenge that
reasoning.
Consider, for example, plaintiff’s lead lawyer, James Rasor, who asked for an astounding
$1,500 per hour. The district court found that Miller could not substantiate her claim that the rate
was within “the range of local rates” and found that the rate in fact was the opposite. Yet, the court
still awarded a considerable rate of $650 per hour, which is almost at the 95th percentile of
employment-attorney rates. It similarly dissected Miller’s conclusory rate assertions for other
attorneys and legal professionals and noted several instances in which Miller tried to charge fees
at attorney rates for non-attorneys. So, in calculating the lodestar, the court reduced Miller’s
requested rates across the board, leaving the pertinent hours intact, as set forth above. It then made
no further adjustments. Because the district court provided a “clear explanation of its reasons for
the fee award,” including the “relationship between the amount of the fee awarded and the results
obtained,” Hensley, 461 U.S. at 437, we discern no abuse of discretion.
VI.
For these reasons, we affirm the district court’s judgment.
3
Miller also asserts in conclusory fashion that the district court erroneously reduced the
hourly rate for “skilled law clerks and paralegals.” But she lacks any sufficient argument for why
the district court erred in reducing the rates of these individuals, rendering it forfeited. Burley, 834
F.3d at 618.
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