Carter v. Univ of Toledo

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Carter v. University of Toledo No. 02-3842

ELECTRONIC CITATION: 2003 FED App. 0401P (6th Cir.)

File Name: 03a0401p.06 Rowen, SPENGLER NATHANSON, Toledo, Ohio, for

Appellee.

UNITED STATES COURT OF APPEALS _________________

FOR THE SIXTH CIRCUIT OPINION

_________________ _________________

CAROLYN CARTER , X RONALD LEE GILMAN, Circuit Judge. Dr. Carolyn

- Carter, who is African-American, brought suit against her

Plaintiff-Appellant, former employer, the University of Toledo, alleging that the

-

- No. 02-3842 University failed to renew her contract as a visiting professor

v. - because of her race. The district court granted the

> University’s motion for summary judgment, concluding that

, Carter had failed to show any direct evidence of

UNIVERSITY OF TOLEDO, -

Defendant-Appellee. - discrimination and had also failed to establish that the

legitimate, nondiscriminatory reasons given by the University

N for not renewing her contract were a pretext to disguise racial

Appeal from the United States District Court discrimination. For the reasons set forth below, we

for the Northern District of Ohio at Toledo. REVERSE the judgment of the district court and REMAND

No. 01-07307—David A. Katz, District Judge. for further proceedings consistent with this opinion.

Argued: October 22, 2003 I. BACKGROUND

Decided and Filed: November 12, 2003 The University of Toledo hired Carter in January of 1996

as an Assistant Professor of Curriculum and Instruction in the

Before: KEITH, DAUGHTREY, and GILMAN, Circuit University’s College of Education. Carter’s assistant

Judges. professorship was a tenure-track faculty position. In October

of 1996, the University’s Personnel Committee recognized

_________________ Carter as having shown “good progress in her teaching,

professional activities and service.” The Personnel

COUNSEL Committee unanimously recommended that her faculty

appointment be renewed. Professor James R. Gress, the

ARGUED: John D. Franklin, LAW OFFICES OF JOHN D. chairman of Carter’s department, echoed the Committee’s

FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant. sentiments in his support for Carter’s reappointment.

Cheryl F. Wolff, SPENGLER NATHANSON, Toledo, Ohio,

for Appellee. ON BRIEF: John D. Franklin, LAW As a result of these favorable recommendations, the

OFFICES OF JOHN D. FRANKLIN & ASSOCIATES, University renewed Carter’s appointment for two years and

Toledo, Ohio, for Appellant. Cheryl F. Wolff, Theodore M. awarded her a merit pay increase. Carter, however,

1

No. 02-3842 Carter v. University of Toledo 3 4 Carter v. University of Toledo No. 02-3842

voluntarily resigned from her tenure-track faculty position in two were Sandra McKinley and Robin Rayfield, both

May of 1997 to take an administrative position in the Jackson, Caucasian.

Michigan school district. She left the University in July of

1997 after teaching the first of the summer school sessions. When she had not heard anything about the renewal of her

visiting professorship, Carter contacted Dr. Earl Murry, the

Due to another change in career plans, Carter returned to University’s Vice Provost. Murry’s duties as Vice Provost

the University of Toledo as a visiting faculty member for the included acting as chief negotiator for the faculty’s collective

1999-2000 academic year. Dr. Charlene Czerniak, who was bargaining agreements, coordinating faculty recruiting, hiring,

then Interim Dean of the College of Education, extended training, and orientation, advising the Provost on tenure and

Carter an offer for the visiting professorship in the promotions, reviewing salary matters, and ensuring

Educational Administration and Supervision (EDAS) compliance with affirmative action requirements. According

program in the College of Education’s Department of to Carter, Murry said that he would investigate the matter and

Foundations and Leadership. Carter accepted the get back to her. When Murry did not promptly get in touch

appointment in the EDAS program, as did three other visiting with Carter, she called him back to ask whether he had any

professors—Louis Barsi, Brenda Lanclos, and Richard St. information about the renewal of her contract.

John—who were all Caucasian.

Murry told Carter that he had not yet discussed the issue

The University did not renew Carter’s visiting-professor with Czerniak, and then, according to Carter, volunteered that

appointment after the 1999-2000 academic year. In July of “[Czerniak] is trying to whitewash the college of education

2000, Carter sent an e-mail message to Czerniak inquiring and I am not going to let her do this.” Carter also asserts that

about the renewal of her contract with the University for the Murry “told me that [Czerniak] was trying to get rid of the

following year. Czerniak responded that the University had black professors and that he was in a struggle with her

met its hiring needs for the year and would not be extending involving the appointment of an additional black professor.”

Carter’s appointment. When she contacted him a third time to find out whether her

appointment would be renewed, Carter claims that Murry said

Carter was not the only visiting professor whose contract “I don’t know what’s going on, they’re a bunch of racists over

was not renewed for the 2000-2001 academic year. Neither there.” Murry denies making any of these statements.

St. John, who like Carter was teaching in the EDAS program,

nor Mary Anne Stibbe, a visiting professor in the College of Carter sued the University of Toledo in June of 2001. She

Education’s Department of Curriculum and Psychological alleged that the University discriminated against her because

Studies, were reappointed for 2000-2001. Both St. John and of her race in violation of 42 U.S.C. §§ 2000(e)-2000(e)-17

Stibbe are Caucasian. (Title VII), 42 U.S.C. § 1981, and Ohio Revised Code

§ 4112.02 and § 4112.99. Carter also claimed that the

Barsi and Lanclos, the other two EDAS visiting professors, University subjected her to a racially hostile work

were rehired for the following academic year, but not in the environment in violation of Title VII and Ohio law. The

EDAS program. Three new visiting professors were hired in University moved for summary judgment, arguing that Carter

the EDAS program for the 2000-2001 academic year. One had failed to present either direct or circumstantial evidence

was Bunk Adams, who is African-American, and the other of racial discrimination, and asserting that her hostile work

No. 02-3842 Carter v. University of Toledo 5 6 Carter v. University of Toledo No. 02-3842

environment claims were without merit because she had not discrimination claim, Carter was required to either “present

presented any evidence supporting these claims. direct evidence of discrimination or introduce circumstantial

evidence that would allow an inference of discriminatory

In June of 2002, the district court granted the University’s treatment.” Johnson v. Kroger Co., 319 F.3d 858, 864-65

motion for summary judgment. Carter filed a timely appeal. (6th Cir. 2003). Carter argues that the alleged comments

In her briefs on appeal, however, Carter does not address the made by Murry constitute direct evidence of discrimination.

district court’s ruling on her claims of a racially hostile work She points to three comments purportedly made by him:

environment. We therefore consider those arguments waived. (1) that Czerniak was “trying to whitewash the College of

See Farm Labor Org. Comm. v. Ohio State Highway Patrol, Education” faculty, (2) that Murry was struggling with

308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is well established Czerniak to appoint African-American professors, and (3) that

that an issue not raised in a party’s briefs may be deemed “the decision-makers at the College of Education are a bunch

waived.”). of racists.”

II. ANALYSIS The district court began its analysis by considering whether

or not Carter would be allowed to testify as to these

A. Standard of review comments allegedly made by Murry. We do not need to

address this evidentiary issue with regard to our analysis of

We review a district court’s grant of summary judgment de the direct-evidence argument, however, because even if

novo. Therma-Scan, Inc. v. Thermoscan, Inc. 295 F.3d 623, Murry’s comments are admissible as nonhearsay, they do not

629 (6th Cir. 2002). Summary judgment is proper where constitute direct evidence of discrimination against Carter

there exists no genuine issue of material fact and the moving under controlling Sixth Circuit precedent.

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

P. 56(c). In considering a motion for summary judgment, the This court has held that comments made by individuals

district court must construe all reasonable inferences in favor who are not involved in the decision-making process

of the nonmoving party. Matsushita Elec. Indus. Co. v. regarding the plaintiff’s employment do not constitute direct

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central evidence of discrimination. See Hopson v. DaimlerChrysler

issue is “whether the evidence presents a sufficient Corp., 306 F.3d 427, 433 (6th Cir. 2002) (holding that a

disagreement to require submission to a jury or whether it is company manager’s opinion that “race was a factor” in the

so one-sided that one party must prevail as a matter of law.” company’s decision not to promote the plaintiff was not direct

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 evidence for purposes of the plaintiff’s discrimination claim

(1986). because the manager had “no involvement in the decision-

making process with respect to the particular jobs at issue”).

B. Direct evidence of discrimination Murry was not a decision-maker with regard to the renewal of

Carter’s visiting professorship. His statements therefore

We shall consider Carter’s federal and state-law cannot be considered direct evidence of racial discrimination

discrimination claims under the Title VII framework because against Carter.

Ohio’s requirements are the same as under federal law. See

Ohio Civil Rights Comm’n v. Ingram, 630 N.E.2d 669, 674

(Ohio 1994). To establish a Title VII employment

No. 02-3842 Carter v. University of Toledo 7 8 Carter v. University of Toledo No. 02-3842

C. Circumstantial evidence 3. Carter spent approximately half of her time in the

1999-2000 academic year providing consulting

Where a plaintiff fails to present direct evidence of services to the operators of charter schools in

discrimination, the burden-shifting framework first articulated Detroit.

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

and refined by Texas Department of Community Affairs v. 4. Carter was occasionally unavailable to students due

Burdine, 450 U.S. 248 (1981), applies. Johnson, 319 F.3d at to her charter school activities.

865-66. The plaintiff must first present a prima facie case of

discrimination. Id. at 866. Establishing a prima facie case The burden thus shifted back to Carter to show that the

creates a rebuttable presumption of discrimination, and the University’s reasons were pretextual. St. Mary’s Honor

burden then shifts to the defendant to articulate a legitimate, Center v. Hicks, 509 U.S. 502, 508 (1993). Determining

nondiscriminatory reason for taking the challenged whether the reasons proffered by an employer are pretextual

employment action. Id. If the defendant satisfies this burden, requires a heightened examination of “the specific proofs and

the plaintiff “must then prove that the proffered reason was rebuttals of discriminatory motivation the parties have

actually a pretext to hide unlawful discrimination.” Id. introduced.” Id. at 516. To demonstrate pretext, a plaintiff

(internal citation omitted). may show that the defendant’s proffered reason “(1) has no

basis in fact, (2) did not actually motivate the defendant’s

To establish a prima facie case of discrimination, a plaintiff challenged conduct, or (3) was insufficient to warrant the

must show that (1) she is a member of a protected group, challenged conduct.” Seay v. Tennessee Valley Auth., 339

(2) she was subject to an adverse employment decision, F.3d 454, 463 (6th Cir. 2003) (internal citations omitted).

(3) she was qualified for the position, and (4) she was

replaced by a person outside of the protected class. Kline v. Carter puts forth two arguments as to why the University’s

Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997). proffered reasons for not renewing her contract “did not

The University does not dispute that Carter could establish a actually motivate the defendant’s challenged conduct.” See id.

prima facie case of race discrimination. First, she contends that Murry’s alleged comments concerning

the “bunch of racists” at the University and Czerniak’s

In response, however, the University offered the following purported attempt to “whitewash the faculty” show that the

“legitimate, nondiscriminatory reasons” for not retaining above reasons were pretextual. Second, Carter points out that

Carter as a visiting professor: two similarly situated Caucasian visiting professors in the

EDAS program had their contracts renewed.

1. Carter did not apply for a regular tenure track faculty

position in the EDAS program when one was Carter’s stronger argument is that Murry’s alleged

advertised in 2000. comments demonstrate that the University’s proffered reasons

did not actually motivate its conduct. To analyze Carter’s

2. Carter, whose regional educational experience was argument on this point, we must decide whether Carter would

based upon her work in Michigan, did not have the be allowed to testify at trial regarding Murry’s alleged

appropriate Ohio connections to aid in University comments. If the comments are deemed to be hearsay, then

recruiting. the evidence could not be considered on summary judgment.

See Jacklyn v. Schering-Plough Healthcare Prods. Sales

No. 02-3842 Carter v. University of Toledo 9 10 Carter v. University of Toledo No. 02-3842

Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“Hearsay evidence that he had had with other Spiegel employees about Hill’s

may not be considered on summary judgment.”). Whether the termination. According to Baker, three Spiegel employees

proffered evidence is hearsay under the Federal Rules of told him that Hill had been discharged because of his age.

Evidence is a question of law that we review de novo. Id. The court held that “there was no basis for finding that the

statements of these declarants concerned ‘a matter within the

The district court found that Murry’s alleged comments as scope of [their] agency,’” reasoning that there was no

offered by Carter in her deposition were admissible as evidence that any of the declarants were involved in the

nonhearsay under Rule 801(d)(2)(D) of the Federal Rules of decision to terminate Hill. Id. at 237 (alteration in original).

Evidence. This rule provides, in relevant part, that a

“statement is not hearsay if . . . [t]he statement is offered At first glance the holding appears to support the

against a party and is . . . a statement by the party’s agent or University’s argument that only comments by direct decision-

servant concerning a matter within the scope of the agency or makers can qualify as nonhearsay under Rule 801(d)(2)(D).

employment, made during the existence of the relationship.” The court’s analysis, however, went beyond the simple

Although the district court concluded that the alleged question of whether the declarants were direct decision-

comments would be admissible as nonhearsay, it reasoned makers. It looked to the scope of each declarant’s

that the purported remarks were too isolated to show pretext employment and noted that there was one “about whose

on the part of the University. duties and responsibilities [the plaintiff] testified he was

uncertain,” a second who became a regional manager of

The University defends the district court’s basis for Spiegel’s catalog order division after Hill was discharged,

discounting the proffered testimony, but also argues that the and a third whose job was unrelated to Hill’s. Id. The court

alleged comments do not satisfy the requirements of Rule concluded that “[t]he mere fact that each of these men was a

801(d)(2)(D) because “[t]he record is clear that Murry had ‘manager’ within the expansive Spiegel organization is

nothing to do with the College of Education’s substantive clearly insufficient to establish that matters bearing upon

decisions regarding the hiring and retention of visiting Hill’s discharge were within the scope of their employment.”

professors.” Its position appears to be that only statements Id. Whether a statement qualifies as nonhearsay under Rule

made by declarants who are direct decision-makers 801(d)(2)(D), therefore, goes beyond simply determining if

concerning the adverse employment action at issue can the declarant is a direct decision-maker with regard to the

qualify as nonhearsay under Rule 801(d)(2)(D). adverse employment action.

The University cites Hill v. Spiegel, Inc., 708 F.2d 233 (6th In addition to Hill, two other Sixth Circuit cases support

Cir. 1983), to support its argument. In Hill, the court this broader reading of Rule 801(d)(2)(D). This court rejected

discussed the application of Rule 801(d)(2)(D) in an age an employer’s argument that statements made by someone

discrimination case. Spiegel, the well-known mail order who was not a direct decision-maker were irrelevant in

company, had terminated Emery Hill, who was 56 years old Johnson v. Kroger Co., 319 F.3d 858, 868 (6th Cir. 2003).

at the time and a regional manager of Spiegel’s catalog-order The court reasoned that “[a]lthough remarks made by an

division. In appealing an adverse jury verdict against it, individual who has no authority over the challenged

Spiegel argued that the admission of testimony given by employment action are not indicative of discriminatory intent,

Matthew Baker was erroneous. Baker, a former district the statements of managerial-level employees who have the

manager at Spiegel, testified on Hill’s behalf to conversations ability to influence a personnel decision are relevant.” Id.

No. 02-3842 Carter v. University of Toledo 11 12 Carter v. University of Toledo No. 02-3842

And in Jacklyn v. Schering-Plough Healthcare Products University places his statements concerning the racial

Sales Corp., 176 F.3d 921, 928 (6th Cir. 1999), this court composition of the workforce within the ambit of his

considered whether the declarant was “involved in any of the authority.” Indeed, Murry testified that he ensures that the

critical appraisals of [plaintiff’s] performance that preceded deans comply with affirmative action requirements when

her leaving work,”—not whether the declarant was a direct hiring faculty. We agree with the district court’s analysis on

decision-maker—in determining if the declarant’s remarks this point and conclude that because Carter has shown that

qualified as nonhearsay under Rule 801(d)(2)(D). Being a Murry’s comments were within the scope of his employment,

direct decision-maker, of course, constitutes strong proof that Murry’s alleged comments are admissible nonhearsay. Fed.

a statement was made within the scope of employment, but R. Evid. 801(d)(2)(D).

the “scope of employment” criterion extends beyond direct

decision-makers. We are thus left with the question of whether the district

court erred in discounting Murry’s alleged comments because

We also note that our prior decisions are consistent with the they were “isolated.” See, e.g., Ercegovich v. Goodyear Tire

reasoning of the Seventh Circuit in Williams v. Pharmacia, & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998) (“Isolated

Inc., 137 F.3d 944 (7th Cir. 1998), where the court rejected and ambiguous comments are too abstract, in addition to

the employer’s argument that being irrelevant and prejudicial, to support a finding of age

discrimination.”) (internal quotation marks and citations

an employee’s statement regarding a particular action of omitted). The district court gave no explanation for its

the employer qualifies as a vicarious admission under conclusion on this point, and we respectfully disagree that the

Rule 801 only if the employee-declarant was involved in alleged comments can be so categorized. They were allegedly

the decisionmaking process leading up to the employer’s made in direct response to Carter’s inquiries as to why she

action. . . . The precise reach of Rule 801(d)(2)(D) is was not rehired. Under these circumstances, we find no

sometimes difficult to discern, as there has been justification to regard them as isolated.

considerable debate about the justification for classifying

various admissions as non-hearsay. We are reluctant to In sum, we conclude that a genuine issue of material fact

follow [the employer’s] suggestion and read into the rule exists as to whether Carter can show pretext on the part of the

a generalized personal involvement requirement, University. We recognize that, but for Murry’s alleged

especially in light of the Advisory Committee’s comments, Carter’s claims would not likely survive summary

admonition that the freedom which admissions have judgment. But if the jury were to believe that Murry in fact

enjoyed . . . from the restrictive influences of . . . the rule made the remarks attributed to him, then they might find that

requiring firsthand knowledge . . . calls for generous the University’s proffered reasons “did not actually motivate

treatment of this avenue to admissibility. the defendant’s challenged conduct.” Seay v. Tennessee

Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003). This is a

Id. at 950 (quotation marks and internal citations omitted). credibility determination that must be resolved by the

factfinder, not by the court as a matter of law. We therefore

The district court distinguished Hill from the instant case conclude that the district court erred in granting the

by reasoning that “[a]lthough Murry did not have direct University’s motion for summary judgment.

authority to decide whether Carter’s appointment was

renewed, his oversight of the affirmative action process at the

No. 02-3842 Carter v. University of Toledo 13

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the

district court’s grant of summary judgment in favor of the

University and REMAND for further proceedings consistent

with this opinion.