Anthony v. BTR Auto Sealing

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Anthony v. BTR Automotive No. 01-6028

ELECTRONIC CITATION: 2003 FED App. 0278P (6th Cir.) Sealing Systems, Inc.

File Name: 03a0278p.06

_________________

UNITED STATES COURT OF APPEALS COUNSEL

FOR THE SIXTH CIRCUIT ARGUED: Stephen Talbert Hyder, Maryville, Tennessee,

_________________ for Appellant. Robert O. Sands, OGLETREE, DEAKINS,

NASH, SMOAK & STEWART, Atlanta, Georgia, for

LAWRENCE E. ANTHONY , JR., X Appellee. ON BRIEF: Stephen Talbert Hyder, Maryville,

- Tennessee, for Appellant. Robert O. Sands, OGLETREE,

Plaintiff-Appellant, DEAKINS, NASH, SMOAK & STEWART, Atlanta,

-

- No. 01-6028 Georgia, for Appellee.

v. -

> BERTELSMAN, D. J., delivered the opinion of the court,

, in which CLAY, J., joined. COLE, J. (pp. 20-22), delivered

BTR AUTOMOTIVE SEALING - a separate concurring opinion.

SYSTEMS, INC. -

Defendant-Appellee. - _________________

-

N OPINION

Appeal from the United States District Court _________________

for the Eastern District of Tennessee at Knoxville.

No. 00-00315—James H. Jarvis, District Judge. BERTELSMAN, District Judge. Plaintiff Lawrence E.

Anthony, Jr., appeals the district court’s grant of summary

Argued: December 5, 2002 judgment to defendant on Anthony’s claims for race and age

discrimination under Title VII of the Civil Rights Act of

Decided and Filed: August 8, 2003 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 621 et seq., 42 U.S.C.

Before: COLE and CLAY, Circuit Judges; § 1981, and the Tennessee Human Rights Act. For the

BERTELSMAN, Senior District Judge.* reasons set forth, this court AFFIRMS the district court.

Factual Background

Plaintiff Lawrence E. Anthony, Jr., a black male over the

age of forty, was hired by defendant at the age of nineteen.

Beyond high school, Anthony attended the University of

Tennessee at Martin for approximately one year before his

employment with the defendant. Anthony does not possess

*

The Honorable William O. Bertelsman, Senior United States District a college degree or Certified Quality Engineer “CQE” status.

Judge for the Eastern District of Kentucky, sitting by designation.

1

No. 01-6028 Anthony v. BTR Automotive 3 4 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

Defendant BTR Automotive Sealing Systems, Incorporated with BTR, he spent twenty-two years in the quality laboratory

(“BTR”)1 manufactures door seals for new automobiles, under the supervision of Debbie Massey.

primarily sold to the “Big Three” automobile makers –

General Motors, Ford and Chrysler. BTR has historically had Anthony maintains that, early in his employment, BTR’s

three operations on site: the mixing plant and the extrusion then-vice president for technical operations, John McManus,

plant2 located within one building, and the finishing plant3 a graduate from the National College of Polymer Technology

located a few yards away. Each of the three operations had in London, taught Anthony directly from class notebooks.

separate laboratories. Anthony contends a jury should have been permitted to hear

how this early experience in Anthony’s employment “set the

Anthony appeals the grant of summary judgment to BTR tone” for his loyalty and enthusiasm for the company during

on his claims that BTR’s refusal to promote him on four his employment and ultimately demonstrates that he was

separate occasions was discriminatory based on his race and indeed qualified for the promotions.

age.4 He also appeals the grant of summary judgment by the

district court four days before trial because by that time he The four promotions at issue include: (1) a job given to

had already expended money on witness per diem and service Tim Wilham in late 1997; (2) a job given to Mark Ledbetter

fees for the trial. in June of 1998 ; (3) a job given to Leann Abston in

December of 1998; and (4) a job given to Rusty Kreyling in

Anthony argues that he was a long-time faithful employee August of 1999. The facts of each promotion follow.

of BTR with a good work record, including never missing a

day of work or being tardy. During his twenty-seven years The promotion given to Tim Wilham

In 1997, Debbie Massey, laboratory supervisor of the

extrusion plant and supervisor to Anthony, transferred to the

company’s Rockford, Maryland office. Massey had a

1

BTR has been sold and is known now as Metzeler Automo tive Bachelor of Science degree from the University of Tennessee

Profile Systems. with an additional year of education in chemistry and

2

psychology. In addition to supervising Anthony, Massey

In the extrusion plant after raw compounds and raw materials are supervised two other employees in the finishing and extrusion

blended together at the mixing plant to form rubber, the rubber compound plant laboratories. Anthony had no responsibilities in the

is run through an extrusion dye. This subjects the rubber to heat and

pressure. T he final product is primarily door seals. finishing plant. While Anthony was primarily performing lab

tests for the extrusion lines, Massey was covering duties in a

3

The finishing plant is where extruded materials are taken and variety of locations, including incoming materials as well as

molded together, coated, and various secondary operations performed the finishing plant.

prior to packaging for shipment to the customer.

Anthony maintains that he performed all supervisory and

4

At the district court level Anthony also sou ght relief for claims of nonsupervisory duties in the laboratory when there was no

discrimination for adverse employment actions related to his pay. The supervisor after Massey was transferred. Anthony submitted

district court found the pay claims were barred for failure to include them his resume to Denny Moore, the human resources manager,

in his EEOC action. Anthony did not appeal this ruling.

No. 01-6028 Anthony v. BTR Automotive 5 6 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

to apply for Massey’s position. Moore told Anthony that preferred someone with a college degree, technical

BTR was not looking to fill the position as a laboratory background or CQE credentials to succeed Wilham, instead

supervisor and, instead, wanted to fill it with someone who of a lab supervisor. BTR further contends that prior

was a CQE or who had a technical decree. experience within the automotive supply industry to the “Big

Three” automakers was considered a plus.

The job was given to Tim Wilham, a white male under the

age of forty. He did not have a college degree and was not a In May of 1998, Patrick Hood was employed as a quality

CQE. Wilham began working for BTR as a production manager while BTR was undergoing an attempt to improve

supervisor in December of 1994. its quality standards and regain a “Ford Q1" status. This

status would require the implementation of the new standard

In 1997, Wilham had been assigned to work as a supervisor of quality within the industry, designated as QS-9000.5 BTR

in the mixing plant. The mixing plant employees objected to maintains that it needed to change its approach to quality

Wilham’s presence because of a previous arrangement oversight by attempting to identify the root cause of

between BTR and the union that a supervisor would not be problems, rather than testing materials after the fact.

assigned to this particular group of employees. J.W. Burton,

the operations manager, and Terry Brosi, the general Hood hired Mark Ledbetter, a white male under the age of

manager, conceded to the employees’ request for Wilham’s forty, to fill the position in June of 1998. Ledbetter had a

removal, which was determined not to be through any fault of CQE status, a technical education, and experience within the

Wilham. Because Wilham was an experienced supervisor for automotive industry. Ledbetter’s job comprised more than

BTR, the company did not want to terminate him. According just supervising the extrusion lab. His duties also included

to BTR, Brosi and Burton assigned Wilham to Massey’s identifying and solving problems, conducting designs of

former position as a laboratory supervisor because there was experiments, performing statistical studies to bring processes

no other place to put him. This was considered only a in control, and generally identifying and developing better

temporary placement for Wilham until another position was test procedures.

available for him.

The promotion given to Leann Abston

Moore testified that neither Wilham nor Anthony was

qualified for the position. However, Brosi and Burton made Ledbetter quit after five months to take another job in

the promotion decision. After Wilham’s initial period in the November of 1998. At that time Leann Abston, a white

laboratory, the company decided it was not going to work out female under the age of forty, replaced him as the quality

and that Wilham was not qualified. Within a few months he engineer responsible for the projects which Ledbetter had

was transferred to another position. been doing as well as supervising Anthony in the extrusion

lab. Abston was a CQE who had been employed by BTR

The promotion given to Mark Ledbetter

After Wilham was moved out of the position, BTR 5

maintains it determined that it would seek candidates for the The QS-9000 system is a set of standards adopted by the automotive

position who were qualified as quality engineers. BTR industry to ensure that all suppliers are held accountable to the same set

of stand ards governing their production, rep orting, and systems.

No. 01-6028 Anthony v. BTR Automotive 7 8 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

since October 1991 in various quality engineer/supervisor ever designated as a laboratory supervisor. The other three

positions within the quality assurance department. She had were quality engineers.

a significant educational background, including an

engineering degree and a master’s degree in business Hood also testified concisely in his deposition that BTR

administration. She also had previous automotive experience wanted someone with a technical degree or a CQE status for

with the Ford Motor Company. the position. Hood was also looking for someone with

experience in statistical studies, experiment design, QS-9000

Abston had been selected for a reduction in force in early administration, one-on-one customer problem solving, and

1998. After she contested this decision, she was reinstated PPAPs.6 The persons hired after Wilham all had these or

during late 1998. Since Ledbetter departed about the same equivalent qualifications according to Hood.

time, Abston was given Ledbetter’s position because BTR

had agreed to return Abston to work. While Hood testified Hood testified that the majority of Anthony’s job included

that Abston was technically qualified to perform the job, he the testing of parts and entering the data. Anthony also filed

did have reservations about her personality and her certain documentation in regard to the QS-9000 as a clerk

absenteeism from work. Nonetheless, he was told by the would. He had never done any statistical studies or designed

acting interim general manager at that time that Abston was any experiments. According to Hood, Anthony “[s]imply

coming back to work in quality engineering. wasn’t qualified, hands down.” When asked to summarize

why Anthony was not qualified, Hood testified in his

The promotion given to Rusty Kreyling deposition:

Abston resigned in August of 1999, and Rusty Kreyling [H]e doesn’t have a technical degree, number one, he

was hired permanently in early 1999 to work as a quality doesn’t have a certified quality engineer by his name, he

technician in the finishing plant. Kreyling was considered hasn’t done root cause problem solving involving design

highly qualified by Hood because of his degree in statistics of experiments, he doesn’t have the statistical knowledge

from the University of Tennessee and his advanced to do more than – anymore than input data into a

knowledge of statistics. Kreyling was not a CQE. computer and hit a button and have it print out.

Nonetheless, because of his statistics degree, Hood testified Analyzing what that data means, he doesn’t have any

that Kreyling was more qualified than other CQEs with whom background in that.

he had worked in the past.

(J.A. at 272).

BTR’s reasons for not promoting Anthony after Wilham

was transferred

While Hood was aware of Anthony’s interest in a

laboratory supervision position, he explained to Anthony that

he had no such position available after Wilham was moved.

Wilham was the only one of the individuals above who was 6

PPAPs are “part approval pro cesses” which mea ns getting new p arts

app roved.

No. 01-6028 Anthony v. BTR Automotive 9 10 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

Standards of Review every State and Territory to make and enforce contracts . . . as

is enjoyed by white citizens. . . .” 42 U.S.C. § 1981. Section

A court of appeals reviews the grant of summary judgment 1981 thus prohibits racial discrimination in the making of

de novo. Bowman v. Shawnee State Univ., 220 F.3d 456, 461 contracts and affords a federal remedy against racial

(6th Cir. 2000). Summary judgment is proper only if there is discrimination in private employment. Johnson v. Ry.

no genuine issue as to any material fact and the moving party Express Agency, Inc., 421 U.S. 454, 460-61, 95 S. Ct. 1716,

is entitled to judgment as a matter of law. Fed. R. Civ. P. 44 L. Ed. 2d 295 (1975). In 1989, however, the Supreme

56(c); see Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Court held that while the “make and enforce contracts”

Cir. 1990). “Rule 56(c) mandates the entry of summary language of § 1981 proscribed discriminatory hiring, it did

judgment, after adequate time for discovery and upon motion, not proscribe discriminatory termination or other

against a party who fails to make a showing sufficient to discriminatory actions occurring after the employment

establish the existence of an element essential to that party’s relationship was formed. Patterson v. McLean Credit Union,

case, and on which that party will bear the burden of proof at 491 U.S. 164, 177-78, 109 S. Ct. 2363, 105 L. Ed. 2d 132

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. (1989).

2548, 91 L. Ed. 2d 265 (1986). In conducting the summary

judgment analysis, this court must view all inferences to be In the wake of Patterson, Congress passed the Civil Rights

drawn from the underlying facts in the light most favorable to Act of 1991, which amended § 1981 by designating its

the nonmoving party. See Gen. Elec. Co. v. G. Siempelkamp original text, quoted above, as subsection (a) and by adding

GmgH & Co., 29 F.3d 1095, 1097-98 (6th Cir. 1994). a new subsection (b) to define the term “make and enforce”

contracts to include “[t]he making, performance,

On the granting of summary judgment so close to trial in modification, and termination of contracts, and the enjoyment

regard to the district court’s controlling its docket, the court of all benefits, privileges, terms, and conditions of the

of appeals reviews such for an abuse of discretion. See contractual relationship.” See 42 U.S.C. § 1981(b). This

generally Guillory v. Domtar Indus., Inc., 95 F.3d 1320 (5th amendment effectively reversed Patterson and permitted the

Cir. 1996). use of § 1981 to challenge alleged race discrimination not

only in the formation of the employment relationship, but in

Analysis “post-formation” employment actions as well.

A. Whether Anthony met the statute of limitations under 42 Thus, the 1991 amendments to § 1981 created “liabilities

U.S.C. § 1981 that had no legal existence before the 1991 Act was passed.”

Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, 114 S.

We first address BTR’s argument that Anthony’s § 1981 Ct. 1510, 1519-20, 128 L. Ed. 2d 274 (1994); see also Harris

claim is barred by Tennessee’s one-year statute of limitations. v. Allstate Ins. Co., 300 F.3d 1183, 1186-87 (10th Cir. 2002)

(“The Civil Rights Act of 1991 . . . essentially created a new

Anthony asserted his discrimination claims, in part, under cause of action to challenge an employer’s discriminatory

42 U.S.C. § 1981. Originally enacted in 1870, § 1981 post-formation conduct.”); Young v. Sabbatine, No. 97-5169,

provides in pertinent part that “[a]ll persons within the 1998 WL 136559, at *3 (6th Cir. Mar. 19, 1998) (noting that

jurisdiction of the United States shall have the same right in

No. 01-6028 Anthony v. BTR Automotive 11 12 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

the 1991 amendments were “not merely restorative” but The Third Circuit, in 2000, discussed three different

created new substantive liabilities) (citing Rivers, supra). approaches that courts have taken. Zubi v. AT&T Corp., 219

F.3d 220, 222 (3d Cir. 2000). Summarized briefly, they are:

This review of the history of 42 U.S.C. § 1981 is essential (1) that claims created by the Civil Rights Act of 1991

to the analysis of which statute of limitations applies to amending § 1981 should be subject to the new four-year

§ 1981 claims such as those asserted in this case. statute of limitations, but all other claims remain subject to

the state “borrowed” period; (2) that all § 1981 claims

Section 1981 does not contain its own statute of limitations. accruing after the passage of 28 U.S.C. § 1658 are now

In Goodman v. Lukens Steel Co., 482 U.S. 656, 661, 107 S. subject to the four-year limitations period; and (3) that the

Ct. 2617, 2620, 96 L. Ed. 2d 572 (1987), the Supreme Court Civil Rights Act of 1991 merely amended an existing law and

held that federal courts should select the most appropriate or was not a new enactment for purposes of 28 U.S.C. § 1658,

analogous state statute of limitations to apply to § 1981 and thus all § 1981 claims remain subject to the state

claims. The Sixth Circuit thus held that the limitations period “borrowed” limitations period. Id.

for § 1981 actions in Tennessee was the state’s one-year

limitation period set forth in Tenn. Code Ann. § 28-3-104. The Third, Seventh, and Eighth Circuits presently hold that

See Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th 28 U.S.C. § 1658 does not apply to any claims under § 1981,

Cir. 1992). whether arising under its original text or under the 1991

amendments. See Jones, 305 F.3d at 728; Madison v. IBP,

However, on December 1, 1990, Congress passed 28 Inc., 257 F.3d 780, 798 (8th Cir. 2001), vacated on other

U.S.C. § 1658, a general statute of limitations applicable to all grounds, 536 U.S. 919, 122 S. Ct. 2583, 153 L. Ed. 2d 773

federal statutes enacted after that date, which states in (2002) (mem.); Zubi, 219 F.3d at 225.

pertinent part: “Except as otherwise provided by law, a civil

action arising under an Act of Congress enacted after the date In contrast, the Tenth Circuit recently held that 28 U.S.C.

of enactment of this section may not be commenced later than § 1658&s four-year statute of limitations applies to § 1981

4 years after the cause of action accrues.” 28 U.S.C. § 1658 claims that were created by the 1991 amendments (e.g.,

(emphasis added). claims under § 1981(b)). See Harris, 300 F.3d at 1191. The

Eleventh Circuit has been presented with the issue but has not

The question of how, if at all, the passage of 28 U.S.C. ruled on it. See Taylor v. Ala. Intertribal Council Title IV

§ 1658 affected the statute of limitations for § 1981 claims is J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001) (affirming

one that has divided the federal courts. See Harris, 300 F.3d dismissal of § 1981 claims on qualified immunity grounds

at 1187 (noting that the federal courts “have split in and not reaching statute of limitations issue), cert. denied, 535

determining which statute of limitations applies to suits U.S.1066, 122 S. Ct. 1936, 152 L. Ed. 2d 841 (2002) (mem.).

brought under the amended version of § 1981"); see also

Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 728 (7th Several years ago, we recognized this question but did not

Cir. 2002) (noting division among circuits and holding that 28 have occasion to resolve it. Sabbatine, 1998 WL 136559, at

U.S.C. § 1658 does not apply to § 1981 claims), cert. granted, *3. Again last year, we were presented with the issue but

__ U.S. __, 123 S. Ct. 2074 (2003). explicitly declined to express a view on the merits because we

did not have jurisdiction. See Smith v. County of Hamilton,

No. 01-6028 Anthony v. BTR Automotive 13 14 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

34 Fed. Appx. 450, 455, No. 00-4290, 2002 WL 655524 (6th four-year statute of limitations to § 1981 claim alleging

Cir. Apr. 19, 2002) (unpublished).7 racially discriminatory termination); Rodgers v. Apple South,

Inc., 35 F. Supp. 2d 974, 976-77 (W.D. Ky. 1999) (holding

In Sabbatine, the plaintiff invoked § 1981 to allege that his that four-year statute of limitations should apply to all § 1981

employer had created a racially discriminatory hostile work claims). But see Coleman v. Shoney’s, Inc., 145 F. Supp. 2d

environment and that it had failed to promote him on account 934, 938 (W.D. Tenn. 2001) (holding that § 1658 does not

of his race. 1998 WL 136559, at *1. The district court apply to any claim under § 1981).

dismissed the § 1981 claims as untimely under the one-year

statute of limitations borrowed from Kentucky. Id. at *3. We We now hold that the four-year statute of limitations set

reversed and remanded, stating that the district court should forth in 28 U.S.C. § 1658 does indeed apply to § 1981 claims

consider the application of the four-year limitation period in insofar as they arise under the portion of the statute enacted

28 U.S.C. § 1658 in light of the 1991 amendments to § 1981.8 by the Civil Rights Act of 1991. That legislation

Id. undisputably created new legal rights that did not exist prior

to its passage. See Rivers, 511 U.S. at 313, 114 S. Ct. at

Several district courts within this circuit have since held 1519-20. Section 1981 claims premised upon alleged

that the four-year limitations period of 28 U.S.C. § 1658 discriminatory actions occurring after the formation of the

should now apply to § 1981 claims, in whole or in part. See employment relationship, such as the failures to promote at

Kinley v. Norfolk Southern Ry. Co., 230 F. Supp. 2d 770, 776 issue in this case, are thus actionable under § 1981 only by

(E.D. Ky. 2002) (applying four-year limitations period to virtue of legislation enacted after December 1, 1990, and by

failure to promote claims); Brown v. Jenny Craig Weight Loss its terms 28 U.S.C. § 1658 therefore applies to them.

Ctr., No. C-1-97-0211, 2000 WL 989918 (S.D. Ohio May 2,

2000) (holding that four-year statute of limitations should In this regard, we are in agreement with the reasoning of

apply to all portions of § 1981); Miller v. Fed. Express Corp., the Tenth Circuit in Harris, supra. We also agree, as

56 F. Supp. 2d 955, 964-65 (W.D. Tenn. 1999) (applying expressed in Harris, that the fact that this statutory

construction results in “post-formation” § 1981 claims being

subject to a four-year limitations period and “formation”

7

claims remaining subject to the borrowed state limitations

W e note that the Supreme Co urt recently granted certiorari in the period does not change this analysis. 300 F.3d at 1193. As

Jones case out of the Seventh Circuit, indicating that it will likely soon the Tenth Circuit noted, “courts routinely apply different

resolve the issue. See Jones v. R.R. Donnelley & Sons, Inc., 305 F.3d 717

(7th Cir. 20 02), cert. granted, __ U.S. __, 123 S . Ct. 2074 (2003 ).

statutes of limitations to different claims, including claims

Nonetheless, this panel must proceed to address the issue in this case as made within a single lawsuit.” Id. Particularly within the

best it can based on the authorities currently available. realm of employment law, where rights may be, and are

typically, asserted under both federal and state law, litigants

8

On remand, the district co urt con cluded that 28 U.S.C. § 1 658 did and courts routinely deal with differing limitations periods for

extend the statute of limitations for the plaintiff’s § 1981 claims to four related causes of action. While this result may not yield the

years. See Young v. Sabbatine, No. 99-6 336 , 200 0 W L 18 886 72, at *2 greatest simplicity, it does reflect what we believe to be the

n.2 (6th Cir. Dec. 19, 2000) (so noting, and holding that the Sixth Circuit

had no jurisdiction to consider the issue on this second appeal because the

most faithful reading of these statutes.

employer did not file a notice of cross-appeal to preserve the issue).

No. 01-6028 Anthony v. BTR Automotive 15 16 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

B. Whether the district court erred in granting summary In order to make a prima facie case based upon a failure to

judgment to BTR on Anthony’s claims of racial and age promote, Anthony must prove that (1) that he is a member of

discrimination9 a protected class; (2) that he applied for, and did not receive,

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

Anthony alleges discrimination by BTR’s refusal to similarly-situated person who was not in the plaintiff’s

promote him allegedly based on his race and age. In order to protected class received the job.10 Thurman v. Yellow Freight

establish employment discrimination, Anthony must either Sys., Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); see also

present direct evidence of discrimination or introduce Burdine, 450 U.S. at 254 (citing McDonnell Douglas, 411

circumstantial evidence that would allow an inference of U.S. 792). Cf. Seay v. TVA, No. 01-5953 (6th Cir. 2003).

discriminatory treatment. Wexler v. White’s Fine Furniture,

Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc). Anthony The Wilham promotion

relies on circumstantial evidence and presents no direct

evidence. Anthony, as an African-American over the age of forty,11

is indeed within the protected race and age classes. He

The burden-shifting approach under McDonnell Douglas applied for the promotion, but it was denied to him. It is the

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d remaining requirements of a prima facie case that are at issue

668 (1973), which was later refined in Texas Dept. of on the Wilham promotion.

Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089,

67 L. Ed. 2d 207 (1981), applies to the present case. Under On whether he was considered for the promotion, Denny

this framework, Anthony faces the initial burden of presenting Moore, the human resources manager, testified that Anthony

a prima facie case of discrimination. The establishment of a gave him his resume. At that time BTR was not looking for

prima facie case creates a rebuttable presumption of a laboratory supervisor, the position which Anthony sought.

discrimination and requires BTR to articulate some

legitimate, nondiscriminatory reason for taking the challenged

action. BTR’s burden is only one of production, not 10

W e note that in Farm er v. Cleveland Pub. Power, 295 F.3d 593,

persuasion. Gray v. Toshiba Am. Consumer Prods., Inc., 263 603 (6th Cir. 2002) and Roh v. Lakeshore Estates, Inc., 241 F.3d 491, 497

F.3d 595, 599 (6th Cir. 2001) (citing Burdine, 450 U.S. at (6th Cir. 20 01), this Court stated that the fourth prong could be met if the

253, 101 S. Ct. at 1093). The ultimate burden of persuasion position went to a less-qualified applicant who was not a member of the

remains with Anthony. Id. If BTR produces legitimate protected group. This standard conflicts with or ignores prior published

decisions of this Court using the “similarly situated” standard. See, e.g.,

nondiscriminatory reasons, Anthony must prove BTR’s Nguyen v. City of Cleveland, 229 F.3d 559 , 562 -63 (6 th Cir. 2000 ); Allen

reasons are a pretext for discrimination. v. Mich. Dep ’t of Corr., 165 F.3d 405 , 410 (6th C ir. 199 9); Betkerur v.

Aultman Hosp. Ass’n, 78 F .3d 1 079 , 109 5 (6th Cir. 1996 ); Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344 , 352 (6th C ir. 199 8); Brown

v. Tenn., 693 F.2d 600 , 603 (6th C ir. 198 2). We, therefore, decline to

adopt the “less-qualified” language used in Farmer and Roh because it

deviates from prior precedent.

9

Anthony’s claims of discrimination under different statutes require 11

the same standards of proof and therefore will not be analyzed separately. Anthony was forty-three years of age when the first promotion

See Wade v. Knoxville Utils. Bd., 259 F.3d 45 2, 464 (6th Cir. 2001). went to Wilham.

No. 01-6028 Anthony v. BTR Automotive 17 18 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

Instead, BTR was searching for someone with a degree and To make a submissible case on the credibility of BTR’s

CQE status. It is not disputed that Anthony did not have explanation, Anthony is “‘required to show by a

these qualifications and was not interviewed. While preponderance of the evidence either (1) that the proffered

ordinarily the fact that a candidate did not have the proper reasons had no basis in fact, (2) that the proffered reasons did

credentials for a position might excuse the employer from not not actually motivate [the employment action], or (3) that

considering him, we continue with the prima facie case they were insufficient to motivate [the employment action].’”

because the position was filled by Wilham, who also did not Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078,

have the proper credentials. Moore testified that neither 1084 (6th Cir. 1994) (alteration in original) (citing McNabola

Wilham nor Anthony was qualified for the position. A v. Chi. Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)).

plaintiff should not be required to prove that he is qualified to

meet the stated requirements for a position where the selected Anthony has failed to show that BTR’s reasons are

candidate likewise does not meet the requirements.12 pretextual. He does not present any evidence showing BTR’s

reasons were not based in fact or that they were not the real

On the final prong of the prima facie case, neither Anthony reasons for its decision. Anthony only presents his own

nor Wilham met the stated criteria for the actual position BTR qualifications on the issue of pretext, and this is insufficient.

sought to fill with a quality engineer, but both had experience

which could make them viable candidates for a laboratory The quality engineer promotions

supervisor. Accordingly, they can be considered similarly

situated for the purposes of reviewing Anthony’s failure-to- As to the position after Wilham was moved, BTR only

promote claim. Hence, this Court finds that Anthony has met sought out candidates with the necessary qualifications it

his prima facie case. deemed essential in a quality engineer. The real issue here is

whether Anthony was qualified for the position of quality

The burden now shifts to BTR to articulate a legitimate, engineer. Hood testified that Anthony was not qualified

nondiscriminatory reason for placing Wilham in the position. “hands down.” The person BTR wanted for the position was

BTR removed Wilham as supervisor of the mixing plant due someone with a technical/statistical background or degree or

to an agreement with the union, and it did not want to someone who was a CQE. Experience with the “Big Three”

terminate him. Placing Wilham into Massey’s former motor companies was also considered a plus.

position was necessary because BTR did not have any other

position at that time for Wilham. Anthony has presented no It is undisputed that Anthony did not have these

evidence to the contrary. qualifications, while the three persons who received the

promotions did. Although Anthony argues that his

experience and background made him as well qualified as the

other candidates, we cannot say in the mind of BTR that this

was equivalent to a college degree, a CQE status, or the other

12

objective qualifications which BTR sought in a quality

There may be instances where a deviation from the stated criteria engineer. Accordingly, Anthony was not qualified for the

of a job positio n wou ld result in an inference o f discrimination. See e .g., position, and he has failed to establish a prima facie case. See

Briggs v. Anderson, 796 F.2d 1009, 1026 (8th Cir. 1986). Under the Wexler, 317 F.3d at 576 (holding that in determining whether

particular facts of this case, no such inference is warranted.

No. 01-6028 Anthony v. BTR Automotive 19 20 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

plaintiff has satisfied qualification prong of prima facie test, ____________________

inquiry should focus on objective criteria).

CONCURRENCE

C. Whether the district court abused its discretion in ____________________

granting summary judgment to BTR four days before

trial R. GUY COLE, JR., Circuit Judge, concurring. Anthony’s

Title VII and ADEA claims relating to the positions filled by

Anthony complains because the district court waited until Wilham and Ledbetter are time-barred and, therefore, no

four days before trial to issue its decision on summary longer actionable. Likewise, Anthony’s Tennessee Human

judgment. However, trial courts have inherent power to Rights Act claims relating to the positions obtained by

control their dockets. See, e.g., Gould v. Wood/Chuck Wilham, Ledbetter, and Abston are time-barred, as they were

Chipper Corp., Nos. 99-1544, 99-1707, 2000 WL 1234334 not filed within the one-year statute of limitations period.

(6th Cir. Aug. 25, 2000); Oliva v. Sullivan, 958 F.2d 272 (9th Finally, under our established precedent, Anthony’s § 1981

Cir. 1992); Edwards v. Cass County, Tex., 919 F.2d 273 (5th claims are subject to a one-year statute of limitations period.

Cir. 1990); Polk-Osumah v. Wayne County, Mich., 205 F.R.D. See Wade v. Knoxville Utils. Bd., 259 F.3d 452, 464 (6th Cir.

199 (E.D. Mich. 2001); U.S. v. Reaves, 636 F. Supp. 1575, 2001) (explaining that “[b]ecause § 1981 does not specify a

1578 (E.D. Ky. 1986 ). The timing of trials and docket statute of limitations, [courts must] apply the one-year

control are matters best left to the discretion of the trial court. limitations period from Tenn. Code Ann. § 28-3-104.” (citing

In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996). Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th Cir.

We cannot say that the district court’s granting summary 1992)). Today, the majority supplants the well-established

judgment four days before trial was an abuse of discretion, rule that the statute of limitations for § 1981 claims must be

considering the heavy caseloads under which the district borrowed from an analogous state statute insofar as that rule

courts labor. Plaintiff is better off than he would be if the applies to claims “aris[ing] under the portion of [§ 1981]

district court had granted judgment as a matter of law at the enacted by the Civil Rights Act of 1991.” I write separately

close of plaintiff’s evidence. because I believe there are no claims that arise under the

portion of § 1981 enacted under the Civil Rights Act of 1991,

For the reasons stated, we AFFIRM the district court. and because I believe 28 U.S.C. § 1658 was not intended to

apply to § 1981 as amended or otherwise.

Although, § 1981(b) allows new causes of action in that it

allows plaintiffs to bring previously unavailable claims –

claims arising out of discriminatory conduct that occurs after

the private employment relationship is formed – § 1981(b)

alone cannot give rise to these causes of action. Instead,

§ 1981(b) defines the phrase “make and enforce contracts” as

that phrase is used in § 1981(a). Specifically, as the majority

notes, in reaction to the Supreme Court’s decision in

Patterson v. McLean Credit Union, 491 U.S. 164 (1987),

No. 01-6028 Anthony v. BTR Automotive 21 22 Anthony v. BTR Automotive No. 01-6028

Sealing Systems, Inc. Sealing Systems, Inc.

§ 1981(b) was added to define that phrase more broadly than borrowing analogous state statutes of limitations for federal

it had previously been defined. However, § 1981(a), entitled causes of action that do not contain their own limitations

“Statement of equal rights,” is still the source of substantive periods.” Id. at 725 (citing H.R. Rep. No. 101-734, at 24).

rights in the statute. Because § 1981(b) is merely definitional, Moreover, § 1658 “was also concerned with disrupting

it functions only to broaden the scope of causes of action that litigants’ settled expectations.” Id. (explaining that, to

arise under § 1981(a). Section 1981(b) does not, in and of address this concern, Congress made § 1658 prospective). I

itself, provide the basis for any causes of action. Therefore, agree with the Seventh Circuit that the conclusion that

the “new causes of action” that are now permitted as a result § 1658’s four-year limitation period does not apply to § 1981

of the inclusion of § 1981(b) are actually § 1981(a) claims. post-formation claims is consistent with Congress’s two

Thus, I would find that § 1981 post-formation claims simply purposes in enacting § 1658. Id. at 726-27. Likewise, I

arise under § 1981(a), which is a statute enacted prior to the believe that the legislative history of § 1981 supports this

effective date of 28 U.S.C. § 1658, December 1, 1990. This conclusion. Id. at 727 (citing H.R. Rep. No. 102-40(I), at 63

finding renders the § 1658 limitations period inapplicable to (1991), U.S. Code Cong. & Admin. News 1991, at 601).

§ 1981 post-formation claims.

Thus, I would find that Anthony’s § 1981 claims relating to

Alternatively, even assuming that a post-formation claim the positions filled by Wilham, Ledbetter, and Abston, but not

arises under both § 1981(a) and (b),1 § 1658 is at least Kreyling, are time-barred. With respect to the claims that are

ambiguous as to whether Congress intended its “catchall” not time barred, Anthony’s Title VII, ADEA, and § 1981

four-year statute of limitations to apply to these claims. The claims relating to the position filled by Kreyling and

language of § 1658 simply does not address the eventuality Anthony’s Title VII and ADEA claims relating to the position

when a cause of action “aris[es] under” two different “Acts of filled by Abston, I would deny these claims on the merits for

Congress,” one enacted before and one enacted after the reasons stated by the majority.

December 1, 1990. See Jones v. R.R. Donnelley & Sons, Co.,

305 F.3d 717, 724 (7th Cir. 2002). Thus, I would look

beyond the plain language of § 1658 to determine whether it

was intended to apply to post-formation § 1981 claims.

The legislative histories of § 1658 and the Civil Rights Act

of 1991 suggest that Congress did not intend § 1658’s four-

year limitation period to apply to § 1981 post-formation

claims. As the Seventh Circuit explained, § 1658 was enacted

to “alleviate the uncertainty inherent in the practice of

1

For the reasons described above, I believe that no claim will ever

arise solely under § 1981(b). However, for purposes of argum ent, I will

concede that a § 1 981 post-formation claim could be viewed as arising

under both subsections (a) and (b) of § 1981.