                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 09a0634n.06

                                             No. 08-3301
                                                                                          FILED
                            UNITED STATES COURT OF APPEALS                            Sep 08, 2009
                                 FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk

CAROL PECK,

          Plaintiff-Appellant,

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
ELYRIA FOUNDRY CO.,                                         COURT FOR THE NORTHERN
                                                            DISTRICT OF OHIO
          Defendant-Appellee.


                                                        /

Before:          MARTIN, SUHRHEINRICH, and WHITE; Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Carol Peck claims that Elyria Foundry Company

refused to hire her because she is a woman. The district court concluded that her evidence was too

weak to support a Title VII sex discrimination claim and entered summary judgment in Elyria’s favor

and Peck appeals. We hold that Elyria’s contradictory explanations for not hiring Peck, combined

with evidence that Elyria treated her application differently from men’s applications, could permit

a jury to reasonably infer that Elyria was covering up a sexually discriminatory hiring decision. We

therefore REVERSE and REMAND Peck’s discrimination claim to the district court.

                                                   I.

          In June 2004, Carol Peck and her boyfriend, Brian Wolters, both filled out job applications

for Elyria Foundry Company. Peck, who had worked in other foundries, listed “Grinder,”
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 2

“To[w]motor,” and “?” as the “position sought” on her application.1 Wolters, who had no foundry

experience, wrote on his application that he was seeking work in “anything.”

          Roughly two weeks later, Elyria hired Wolters to work in its melt shop. Peck then phoned

the company two or three times a week about the status of her application, but never heard back.

About a month and a half after applying, she spoke to Elyria’s human resources director, Denise

Sprague, in Elyria’s parking lot (Peck was waiting to pick up Wolters from work). Peck says that

Sprague told her that her application was still on her desk and that Sprague would call in a couple

of days.

          In late July (after the parking lot conversation between Sprague and Peck), Peck’s attorney

sent Elyria’s president a letter alleging that “the company chose not to hire [Peck] because of a

stereotypical decision that women cannot work in the plant.” It closed with a warning: “If I do not

hear from you or your representative within two weeks, I will file a charge of discrimination.” Peck

did not hear from Elyria, and so filed an employment discrimination charge against the company

with the Equal Employment Opportunity Commission. After receiving a right-to-sue letter, Peck

sued Elyria alleging, without further specificity, violations of Title VII, 42 U.S.C. § 2000e et seq.,

and the Ohio Civil Rights Law. She asked the district court to order Elyria to hire her, and pay full

back-pay and benefits, and to award punitive damages. Peck later sought leave to amend her

complaint to add a state tort claim for refusal to hire based on her decision to contact an attorney.

          The district court refused Peck’s request to amend her complaint and granted Elyria’s motion

for summary judgment on Peck’s discrimination claims. Peck v. Elyria Foundry Co., 533 F. Supp.


1
    The parties use the terms “grinder” and “chipper and grinder” to describe a single position.
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 3

2d 759, 762 (N.D. Ohio 2008). Peck appeals.

                                                 II.

       We review the district court's grant of summary judgment de novo. Blair v. Henry Filters,

Inc., 505 F.3d 517, 523 (6th Cir.2007). Summary judgment should be granted only when “the

pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

FED . R. Civ. P. 56(c). When we review a motion for summary judgment, we must view all facts and

inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

                                                 III.

       We analyze Title VII claims based on circumstantial evidence under the ubiquitous burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and

later modified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

Under this framework, a plaintiff must first establish a prima facie case of discrimination. DiCarlo

v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). This creates a presumption that the defendant

discriminated against her in violation of Title VII. Id. at 414 (citing Burdine, 450 U.S. at 254). To

avoid summary judgment, then, the defendant must then put forth a “legitimate, nondiscriminatory

reason” for the complained of adverse treatment. Id. (citing Burdine, 450 U.S. at 253). This

explanation “must be legally sufficient to justify a judgment for the defendant.” Burdine, 450 U.S.

at 255. If the defendant meets this burden, the presumption of discrimination created by the prima

facie case falls away, id. at 255, and the plaintiff must show that the defendant's “‘legitimate
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 4

nondiscriminatory reason’” was merely a “‘pretext for discrimination.’” DiCarlo, 358 F.3d at 414-15

(quoting Burdine, 450 U.S. at 253). The plaintiff bears the ultimate burden of proving, by a

preponderance of the evidence, the employer’s intent to discriminate. St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 511 (1993).

                                                 A.

       A prima facie case of sex discrimination, based on Elyria’s failure to hire Peck requires her

to demonstrate that men who applied to Elyria were hired instead of her, even though she was as

qualified for the open positions. See McDonnell Douglas, 411 U.S. at 802; Birch v. Cuyahoga

County Probate Court, 392 F.3d 151, 166 n.12 (6th Cir. 2004).

       We begin by highlighting our disagreement with the district court’s, Elyria’s, and the

dissent’s characterization of what positions Peck applied for at the foundry. The district court

concluded that Elyria “reasonably assumed Ms. Peck sought a position as either a ‘Chipper and

Grinder’ or as a ‘Tow Motor Operator,’” Peck, 533 F. Supp. 2d at 759 n.1 (emphasis added). And,

on appeal, Elyria attacks Peck’s claim with respect to those two positions. Had Peck only applied

to those two jobs, we might have no quarrel with the district court’s conclusion that Elyria had

legitimate nondiscriminatory (and unrebutted) reasons for not hiring her as a grinder or tow motor

operator: its good faith belief that she had a medical condition that would prevent her from working

as a grinder, and the absence of a tow motor operator opening.

       But the conclusion that Peck applied for just two jobs at the foundry is not reasonable in light

of her application as it ignores the “?” that Peck wrote; Peck’s application gave Elyria ample notice

that she was interested in foundry work other than just those two positions: See for yourself:
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 5




Indeed, Peck also wrote “?” under salary, and no one would think that the “?” in that spot indicated

that she wanted to work for free. We thus conclude that a jury could find that Elyria had reasonable

notice that Peck wanted to be considered for positions besides tow motor operator or grinder.2 Cf.

Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000) (“The court first determines

if a plaintiff has put forth sufficient evidence for a reasonably jury to find her to have met the prima

facie requirements[.]”).


2

        The dissent finds our reading of Peck’s application “sheer speculation” because a “question
mark” is, according to one definition in Webster’s, “something unknown, unknowable, or uncertain.”
First, we observe that the “?” is separated from “tomotor” with a hyphen, which would indicate that
it was intended as a third alternative. Second, we do not speculate; rather, as we must at the
summary judgment stage, we resolve all reasonable inferences in Peck’s favor. The dissent’s
alternative theory merely reinforces the existence of a “genuine issue of material fact” as to whether
Peck applied for other positions. See Dew v. A.B. Dick Co., 231 F.3d 1016, 1022-23 (6th Cir. 2000)
(quoting Hicks, 509 U.S. at 509-10) (“If . . . reasonable minds could differ as to whether a
preponderance of the evidence establishes the facts of a [Title VII] prima face case, then a question
of fact does remain, which the trier of fact will be called upon to answer.”).
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 6

        Next, we examine whether Peck was qualified for positions at the foundry. “At the prima

facie stage, a court should focus on a plaintiff’s objective qualifications to determine whether he or

she is qualified for the relevant job.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575 (6th

Cir. 2003) (en banc). This burden can be met by presenting “credible evidence that his or her

qualifications are at least equivalent to the minimum objective criteria” in the field. Id. at 576. The

inquiry focuses on “education, experience in the relevant industry, and demonstrated possession of

the required general skills.” Id.

        Peck detailed five years of various foundry work, including as a tow motor operator, machine

operator, packer and inspector, and chipper and grinder on her application. Her application shows

at least as much, if not more, experience than many of the approximately fourteen men that Elyria

hired for non-grinder positions between the time that Peck applied and the day her attorney sent the

letter threatening to file the discrimination charge. During that time, Elyria hired men to various jobs

including as a yard worker, shake out employee, inspector, and core finisher. Many of the men hired

did not list any foundry experience, or experience in the positions for which they were hired. For

example, Elyria hired J.J., who listed experience as a car dealership porter and a customer service

representative, for yard work. It hired E.C., with experience as a truck unloader, material handler,

and machine operator, to work as an inspector. And, in her deposition, Sprague denied that from the

face of Peck’s application she was unqualified for foundry work. Thus, based on Peck’s resume and

application, and her experience compared to the men that Elyria hired instead of her, we conclude

that she has met the “not onerous” burden of establishing a prima facie case of sex discrimination.

See Burdine, 450 U.S. 248, 254-55 (1981).
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 7



                                                 B.

       Because Peck established her prima facie case of sex discrimination, the burden of

production shifts to Elyria to produce evidence that it did not hire Peck because of a legitimate,

nondiscriminatory reason. See id. at 255-56.

       The district court (and now the dissent) concluded that Elyria “reasonably assumed” that Peck

was only interested in working as a grinder or tow motor operator, and so it did not consider Elyria’s

explanations for why it did not hire Peck for positions other than those two. We thus review Elyria’s

nondiscriminatory reasons which, if credited, could explain why it did not hire Peck for any of the

positions it filled after she applied. See Hicks, 509 U.S. at 522 (“[T]he defendant’s ‘articulated

reasons’ themselves are to be found ‘lurking in the record.’”).

       Elyria offered several reasons for its decision, all based on statements or testimony from

Denise Sprague, its director of human resources. At one point, Sprague explained that she never

called Peck for an interview because she thought Peck was only looking for work as a grinder or a

tow motor operator. But later, in the same deposition, her testimony suggested that she would have

considered Peck for other available positions but for the fact that the company was working on

improving Elyria’s women’s facilities:

       Q:      But in your case, you limited her to the jobs that you felt that she was—wanted to do,
               just grinder and tow motor operator?
       A:      No. That's not true.

                                                ***
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 8

       Q:      Why wouldn’t you consider her for anything else, other than grinder and tow motor
               operator?
       A:      I needed to get proper facilities for the women, and it was set aside on my desk.

                                               ***

       Q:      So the reason you never considered her for any other position is because you felt they
               didn’t have facilities?
       A:      At that time, correct. And we were working on [getting proper women’s facilities]
               during that summer and then—.

       For the first time on appeal, Elyria relies on this testimony as a nondiscriminatory reason for

not hiring Peck, including this as one of its headings: “Elyria Foundry Needed to Attend to the

Women’s Facilities Before It Could Give Further Attention to Peck’s Application.” Standing alone,

delaying consideration of Peck’s application due to the lack of women’s facilities does not strike us

as a particularly weighty “nondiscriminatory” reason for passing on an applicant.3 But Sprague gave

other reasons too, including reliance on a report from a former coworker that Peck did not have

reliable transportation and childcare. She also explained that, though Peck’s application remained

under consideration, she took “no further steps” toward hiring Peck after the company received a

letter from her attorney that the company argues was “laced in insults and lies.”4 If considered



3
       See, e.g., Wedow v. City of Kansas City, Mo., 442 F.3d 661 (8th Cir. 2006) (city
employer’s failure to provide adequate facilities constituted “adverse employment action” for
Title VII). But Peck did not indicate that she was challenging Elyria’s conduct under 42 USC §
2000e-2(a)(2), which outlaws an employer’s decision to “limit, segregate, or classify” job
applicants based on sex, nor did the parties brief that issue.
4
         Although the decision to remove a candidate from consideration after being accused of
sex discrimination might amount to impermissible retaliation under Title VII, Peck did not plead
a retaliation claim and has never attempted to argue that Elyria’s response to her attorney’s letter
was retaliatory. Thus, here, we credit the impulse, as the district court put it, “not to hire a
lawsuit,” among the nondiscriminatory reasons articulated by Elyria.
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 9

individually, these reasons could permit the conclusion that Elyria had nondiscriminatory reasons

for not hiring Peck for any position at the foundry. Thus Elyria met its burden of rebutting Peck’s

prima facie case by stating reasons that, on their face and individually, would be neutral reasons for

not hiring Peck. See Hicks, 509 U.S. at 509.C.

       Once Elyria met its burden of production, the court’s task, at the summary judgment stage,

was to determine whether there was a legally sufficient basis for a reasonable jury to find that

Elyria’s reasons were pretextual and that Elyria intentionally discriminated against Peck because of

her sex. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000). A question of

fact remains if a jury could reasonably conclude based on the evidence that Elyria’s “legitimate

reasons . . . were not its true reasons, but were a pretext for discrimination.” Id. at 143 (quotations

omitted). In other words, the question is whether the employer’s stated reason were its true reasons,

or were, instead, phony ones offered later to cover up discrimination. In assessing pretext, a jury is

free to consider the evidence establishing Peck’s prima facie case, and “inferences properly drawn

therefrom.” Id. A jury’s “disbelief of the reasons put forward by the defendant (particularly if

disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima

facie case, suffice to show intentional discrimination.” Hicks, 509 U.S. at 511. Thus, if a jury could

reasonably reject Elyria’s proffered reasons, it would be permitted to “infer the ultimate fact of

intentional discrimination.” Id.

       Employers may have more than one reason for passing on a job candidate. And considered

individually, any of Elyria’s reasons for not hiring Peck could explain its hiring decision. The

problem here, however, is that some of its reasons are inconsistent at best, if not outright
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 10

contradictory, and are thus “so intertwined” that the credibility of any of them is in doubt. Cf. Smith

v. Chrysler Corp., 155 F.3d 799, 809 (6th Cir. 1998). Moreover, “an employer’s changing rationale

for making an adverse employment decision can be evidence of pretext.” Cicero v. Borg-Warner

Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002);5 Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir.

2007) (an inconsistency is “suggestive of pretext”); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d

424, 432 (1st Cir. 2002) (holding that when a company “at different times, gives different

explanations, a jury may infer that the articulated reasons are pretextual.”).

       Here, it would be a logical feat for a jury to believe both Sprague’s testimony that she did not

hire Peck because she thought Peck did not apply for more than two positions and that she did

consider her more broadly, yet passed because she received damning input from a former coworker,

and because the women’s bathrooms were not up to par. A contradiction by the same employee in

the same deposition raises serious credibility concerns; either Sprague considered Peck for more

than two positions or she did not.6


5
        The dissent finds Cicero “inapposite” because, in its view, “Sprague repeatedly and
consistently testified that she was considering Peck for other jobs.” To the contrary: Sprague’s
affidavit states that she “reviewed the application and determined that Ms. Peck was seeking a
job as either a Tow Motor Operator or a Grinder.” Elyria’s interrogatory responses, which
Sprague verified, state only that the “Company still held the application in the event that a tow
motor position might become available” and Elyria’s motion for summary judgment did not take
the position that Peck was considered for other jobs.
6
        Despite its view that Sprague “repeatedly and consistently” stated that Peck was
considered for other jobs, the dissent nevertheless invokes the “honest belief rule” and finds that
“Elyria had an honest and reasoned belief that Peck was applying for two specific positions
because those were what Peck clearly listed on her application.” The simultaneous application of
the “honest belief rule” and protestation that Peck was considered for other positions only
highlights the confusing and inconsistent testimony in the record and further emphasizes the
presence of a genuine issue of material fact.
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 11

        There are other weaknesses in Elyria’s explanations as well. Why, for example, would

Peck’s application“remain[] active” until Peck’s attorney sent the letter if, as the company maintains,

it “should not feel compelled to interview a candidate who . . . has a history of poor attendance at

a former place of employment”? A poor attendance record is a legitimate nondiscriminatory reason

to exclude an applicant for consideration for any position. But if a report of Peck’s attendance issues

dissuaded Elyria from hiring Peck, it does not follow that Elyria would have had any reason to keep

Peck’s application under consideration.

        Setting these inconsistencies aside, other evidence undermines the credibility of Elyria’s

explanation. Peck submits evidence that, at least sometimes, Elyria hired men for positions that

differed from what they specified on their applications. Yet, as we explain above, Sprague testified

(at one point in her deposition) that the reason she never phoned Peck for an interview was “because

her application was based on chipping and grinding.” Why would Sprague limit her consideration

of Peck’s application to two positions (ignoring altogether the “?” on her application) when she

apparently did not make such assumptions of male applicants? Cf. Manzer v. Diamond Shamrock

Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994) (describing insufficiency of explanation as a method

of attacking credibility).

        Our conclusion that these inconsistencies suggest pretext does not mean that a company is

precluded from pursuing alternative lines of defense to convince a jury that its decision was not

motivated by sex discrimination. But at the summary judgment stage, a plaintiff may meet her

burden of demonstrating pretext by showing, in addition to proffered evidence, that an employer’s

reasons are so incoherent, weak, inconsistent, or contradictory that a rational jury could conclude the
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 12

reasons were not believable. See, e.g. Cicero, 280 F.3d at 592 (observing that a conflict “raises an

issue whether the proffered reason truly motivated the defendant’s decision.”) (quoting Thurman v.

Yellow Freight Sys., 90 F.3d 1160, 1167 (6th Cir. 1996); Tuttle v. Metro. Gov. of Nashville, 474 F.3d

307, 319-20 (6th Cir. 2007); cf. Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005); Stover v.

Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004).7

       We consider these inconsistencies and implausibilities in addition to Peck’s circumstantial

evidence of discrimination. See Reeves, 530 U.S. at 143. There is no evidence in the record that any

of the men Elyria hired instead of Peck were more qualified than she, who had worked in various

foundry positions. In fact, Peck listed experience as a foundry inspector on her resume, while E.C.,

a man Elyria hired to the position instead listed no foundry experience at all, let alone as an

inspector. And Elyria’s argument that Peck was not “similarly-situated” to male applicants for non-

grinder positions is a non-starter: Elyria has pointed to no evidence that the medical condition that

it purportedly believed disqualified Peck as a grinder would have prevented her from holding other

positions at the foundry.8


7
       Elyria’s contention that the letter from her attorney ruined her chances at employment does
not explain why Sprague did not call Peck for an interview during the eight weeks between when
she applied and when Elyria received the letter. The evidence shows that Elyria hired at least
twenty-two men for various positions during that time period, some within days of their application
and several without any foundry experience.


8
        Of course Peck bears the burden of showing that Elyria’s reasons were pretextual. We
simply observe here that Elyria’s passing speculation that “it is quite possible that Peck’s
physical limitation would have prevented her from holding any of these other positions,” lacks
any supporting evidence and does not distinguish Peck’s qualifications from male applicants with
respect to non-grinder positions.
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 13

       Elyria may be able to reconcile some of the seemingly contradictory aspects of its explanation

or it may be able to explain away apparent differences between how it treated Peck and the men it

hired instead of her; indeed, the trial may cast the facts in a different light. But at the summary

judgment stage, we must view the record “taken as a whole” and disregard evidence favorable to

Elyria “that the jury is not required to believe.” Reeves, 530 U.S. at 150 (internal citation omitted).

On this record, the combination of Elyria’s inconsistent reasons and evidence that Elyria hired men

who lacked foundry experience instead of Peck could lead a reasonable jury to infer sex

discrimination. Thus, the case cannot be resolved on summary judgment.

                                                 IV.

       Finally, we can quickly dispense with Peck’s argument that the district court erred by refusing

to allow her to amend her complaint to set forth a public policy tort of refusal to hire. She

acknowledges that “Ohio courts have yet to recognize the public policy tort of failure to hire,” but

urges this Court should apply the tort where “a Plaintiff is not hired in whole or in part because she

contacted an attorney.” In the absence of controlling state precedent, we must determine whether

Ohio courts extend its public policy exception to employment-at-will to a situation involving a

person who is seeking employment.

       The Ohio Supreme Court recognizes a public policy exception to employment-at-will “when

an employee is discharged or disciplined for a reason which is prohibited by statute.” Greely v.

Miami Valley Maint. Contractors, Inc., 551 N.E.2d 981, 986 (Ohio 1990). The exception also

applies when “dismissing employees” would “jeopardize” a public policy that is “manifested in a

state or federal constitution, statute, or administrative regulation, or in the common law.” Collins
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 14

v. Rizkana, 652 N.E.2d 653, 657 (Ohio 1995). But Peck directs us to no case suggesting that Ohio

would extend the tort to a failure to hire case. Thus, we follow federal district courts within the

Circuit which have concluded that a “review of Ohio law finds no case extending the public policy

tort to claims involving a wrongful failure to hire or retaliation.” Bools v. Gen. Elec. Co., 70 F.

Supp. 2d 829, 832 (S.D. Ohio 1999).

                                                   V.

       For the reasons described above, we AFFIRM the district court’s denial of Peck’s motion for

leave to amend her complaint. We REVERSE and REMAND its grant of summary judgment in

Elyria’s favor on her sex discrimination claims.
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 15

       SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in part. I agree that

the district court properly denied Peck’s motion for leave to amend her complaint to include a public

policy tort of refusal to hire. I further agree that Peck has made a prima facie showing that Elyria’s

failure to hire her was motivated by Peck’s gender. However, Elyria has proffered legitimate,

nondiscriminatory reasons for its decision not to hire Peck, and Peck has failed to demonstrate that

those reasons were pretextual. Accordingly, I would affirm the district court’s order granting

summary judgment on Peck’s Title VII claim.

                                                  I.

       The majority holds that summary judgment is inappropriate in this case because Elyria’s

contradictory explanations for refusing to hire Peck were indicative of pretext and because Peck’s

job application was treated differently from men’s job applications. Both reasons are problematic.

       As to the issue of whether Elyria offered conflicting reasons for not hiring Peck, Elyria

offered five reasons for choosing not to immediately hire Peck. First, Denise Sprague, Elyria’s

director of human resources, did not consider Peck for the grinder position because Sprague

believed, based upon Supervisor Greg Ganig’s account of Peck’s prior work performance at another

foundry, that Peck had the beginnings of carpal tunnel syndrome. Second, Sprague also did not

consider Peck for the grinding position based upon Ganig’s explanation that Peck had “trouble

getting to work because of . . . [h]er car [and] her children.” (JA 194.) Third, Sprague did not

immediately consider Peck for the tow motor position because it was already filled. Fourth, Sprague

continued to consider Peck’s application for other suitable openings but chose to defer any further

action on Peck’s application until Elyria could complete a renovation of women’s facilities in the
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 16

foundry. And fifth, while Sprague was holding Peck’s application for consideration once a suitable

position opened and the bathrooms were renovated, she took no further action on Peck’s employment

application after receiving a letter from Peck’s attorney threatening to sue for gender and racial

discrimination.

       To survive summary judgment, Peck had to show that Elyria’s proffered reasons were

pretextual. Peck can demonstrate pretext by showing that Elyria’s proffered reasons: (1) have no

basis in fact; (2) did not actually motivate the refusal to hire; or (3) are insufficient to explain the

refusal to hire. See Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2001).

       Here, neither party disputes that there were no open tow motor positions when Peck applied,

so any argument that Elyria failed to hire Peck for the tow motor position is a nonstarter. Peck also

fails to demonstrate, under any of the three methods cited above, see Dews, 231 F.3d at 1021, that

Elyria’s reasons for refusing to consider her for a grinder position were pretextual. As to the first

method of demonstrating pretext, Elyria’s decision to reject Peck for the grinder position because

of Peck’s medical problems has a basis in fact. Peck does not dispute that she was removed from

a previous grinding job because of medical debilitations in her arms. Similarly, Peck concedes that

she briefly encountered problems with transportation and childcare while employed at General

Castings, which was another reason that Elyria chose to defer consideration of Peck’s application.

       As to the second method, even though Peck had previous foundry experience, she was

removed from a grinding position because of medical problems. Elyria was aware of these facts

when it chose to reject Peck for the position, and the fact that Peck was removed from that same

position by a former employer because of medical issues was a reasonable motivation for Elyria to
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 17

reject Peck for grinding. And regarding the third method, Peck fails to demonstrate that her previous

medical problems and removal from a grinding position were insufficient reasons for rejecting her

for the position. Peck acknowledges that she had suffered debilitations in her arms that spurred her

removal from a grinding position. In sum, Peck has failed to demonstrate that Elyria’s decision to

reject her for a tow motor or grinding position was driven by a discriminatory motive.

       However, the inquiry does not end there because Elyria also proffered that it was continuing

to consider Ms. Peck for other positions–at least as a tow motor operator (see JA 66)–but that Elyria

put Peck’s application aside temporarily because it was in the process of updating its women’s

bathroom and locker room facilities. Peck’s argument rebutting Elyria’s “women’s facilities” reason

is as follows: Peck argues that because Title VII was enacted decades ago, Elyria’s failure to have

adequate facilities is illegal, and Elyria “should not be able to stand behind a decision based on a

‘justification’ which is in violation of the law.” (App Br 15.)

       Again, Peck fails under any of the three methods to demonstrate pretext. First, Peck’s

attempt to cast doubt on Elyria’s “women’s facilities” reason overlooks the undisputed fact that

Elyria was in the beginning process of renovating its women’s facilities around the time of Peck’s

application. Accordingly, the reason has a “basis in fact.” Indeed, Elyria’s plans to update its

facilities actually support its claim that it intended to hire women. See, e.g., Bruno v. City of Crown

Point, Indiana, 950 F.2d 355, 362 n.6 (7th Cir 1991) (noting that an employer currently constructing

new women’s restrooms “[i]f anything, . . . was evidence that the department anticipated hiring

women.”).
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 18

       Regarding the second method, Elyria has never wavered from its position that it was

choosing to wait on Peck’s application, in part, until it had adequate bathroom facilities for women.

As it was already in the process of renovating those facilities, it was not unreasonable for Elyria to

delay further consideration of Peck’s application until the deficiencies in its facilities were fixed.

       And as to the third method, Peck fails to show that waiting for the bathrooms to be finished

is insufficient to explain the delay in contacting her for an available position. According to Elyria,

women had inadequate locker room, shower, and bathroom facilities, requiring female employees

to use the bathroom on one floor and wash their hands on another floor. (JA 215.) Further, neither

party disputes that Elyria was in the early stages of renovating the women’s facilities to address these

issues during the summer that Peck submitted her application. And Elyria explains that it was

holding Peck’s application for consideration once the bathrooms were completed. Therefore, it was

not because of Peck’s gender that Elyria failed to consider her, but because Elyria was devoting its

resources to ensuring that women would have proper facilities to use before asking Peck for an

interview. Elyria’s decision to wait on Peck’s application until the renovations were completed

sufficiently explains why Peck was not immediately contacted for an interview. Therefore, Peck has

failed to satisfy any of the three methods for demonstrating that Elyria’s decision to hold Peck’s

application until the facilities were renovated is pretextual.

       The majority finds Sprague’s initial hesitation to interview Peck for a grinding position

irreconcilable with Sprague’s further explanation that she was continuing to consider Peck for other

suitable positions. According to the majority, Sprague had received “damning input” from a former

coworker, Greg Ganig, about Peck, which was reason enough to discontinue consideration of Peck’s
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 19

application. If the attendance issues Ganig mentioned had dissuaded Elyria from considering Peck

for the grinding position, the majority concludes that the fact that Elyria continued to consider Peck

in the face of Ganig’s comments raises credibility concerns about Sprague. The “damning input”

to which the majority refers can be found in the depositions of Sprague and Ganig, who both testified

that Ganig actually thought Peck was “a good worker” who had problems with her arms and had

trouble getting to work because of problems with her car and childcare. (See JA 192; Sprague Dep

97-98.)

          In Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir.1998), this Court acknowledged that

“[t]here may be cases in which the multiple grounds offered by the defendant for the adverse action

of which the plaintiff complains are so intertwined, or the pretextual character of one of them so

fishy and suspicious, that the plaintiff could withstand summary judgment.” Smith, 155 F.3d at 809

(internal quotation marks and citation omitted). The Smith Court also explained that it is up to the

plaintiff to “demonstrate that the employer’s reasons (each of them, if the reasons independently

caused [the] employer to take the action it did) are not true.” Id. at 806 (internal quotation marks and

citation omitted). In Smith, though the plaintiff offered evidence rebutting one of employer’s two

proffered nondiscriminatory reasons, the Court held that casting doubt on one of the reasons did not

cast doubt on the other because the “two justifications and the sources from which they were derived

were separate in nature.” Id. at 809.

          Here, the nondiscriminatory reasons Elyria gave are “separate in nature.” Even if Sprague

was concerned about Peck’s temporary attendance issues at her previous job, that concern does not

preclude Sprague from revisiting Peck’s application once a suitable position opened and then
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 20

inquiring whether Peck had solved the transportation and childcare problems. Indeed, Peck goes to

great lengths to show that Elyria hires employees with, in Peck’s opinion, less than sterling

employment histories. (See, e.g., App Br 23-26.) Sprague similarly continued to consider Peck even

though Ganig mentioned that Peck had attendance problems–which Peck herself argues were

temporary and easily remedied–at her prior job. (See App Br 19.) Therefore, it was perfectly logical

for Sprague to hold Peck’s application until suitable positions opened. Had Sprague stopped

considering Peck after Ganig explained that she had transportation and childcare problems, the

majority presumably would find no inconsistency and, thus, no pretext. To the majority, the fact that

Elyria has consistently maintained that it was keeping Peck’s application active for suitable

openings, despite Ganig’s opinion, is illustrative of pretext. However, Elyria’s decision not to

immediately consider Peck for a grinding position based, in part, on her temporary transportation and

childcare issues while at her previous job is not so “fishy and suspicious” as to cast doubt on Elyria’s

decision to consider Peck for other positions in the future. The main reason Elyria has proffered for

rejecting Peck for the grinding position has always been that Elyria believed Peck had the beginnings

of carpal tunnel.

       More to the point, Elyria consistently maintained that it was continuing to consider Peck until

a tow motor position opened and Elyria had renovated the women’s facilities. Neither of those

events occurred before Peck’s attorney sent the letter, which Sprague believed was the beginning of

legal action (see JA 52) and prompted Elyria to cease further action on Peck’s application.

Therefore, it is impossible to infer those reasons given were pretextual given the record as

developed.
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 21

       Further, Peck never argues in her brief to this Court that Sprague’s proffered reasons were

inconsistent or irreconcilable. In fact, in her own affidavit and brief, Peck corroborates Sprague’s

explanation that Elyria was still considering Peck for employment until Peck’s attorney threatened

legal action. (See JA 115; App Br 19-20, 26-27.) Also undisputed, Sprague herself inquired of

Peck’s former supervisor about Peck’s suitability for work at Elyria. And it was Sprague, who

noticed Peck in Elyria’s parking lot waiting to pick up another employee, who proactively

approached Peck to let her know that she was still being considered for a position and would be

contacted after Sprague got “a few things in order,” (JA 231), referring to the women’s facilities

(id.). Logically, Sprague would not have taken any of these actions had she not been considering

Peck for employment. Sprague’s actions, combined with undisputed testimony that Elyria was

renovating the women’s facilities in anticipation of hiring more females, show that Peck was still

being considered for employment, and that Elyria ceased further consideration of Peck’s application

not because she was female but because Peck’s attorney sent the letter threatening legal action.

       The majority cites Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002), for

the proposition that an employer’s changing rationale for making an adverse employment decision

can be evidence of pretext. Cicero is inapposite here. In Cicero, the employer provided one reason

in interrogatories, another in a deposition, and yet another at the summary judgment stage for its

decision to discharge the plaintiff. Id. No such inconsistency occurred here. As quoted above,

Sprague’s testimony that she did not immediately consider Peck for grinder or tow motor but chose

to “set aside” Peck’s application for further consideration once the women’s facilities were
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 22

completed and a suitable position opened is unrebutted and unchanging through Sprague’s

deposition, Elyria’s responses to Peck’s interrogatories, and at the summary judgment stage.

        In sum, Peck has not called into doubt any of the five reasons given for deferring action on

her job application. As such, Peck has failed in her burden of showing that Elyria’s proffered

reasons for not hiring her were masking any discriminatory animus. And her claim must, as the

district court properly held, fail.

                                                   II.

        The majority also holds that Elyria treated Peck’s employment application differently than

men’s applications. The majority explains that, at least sometimes, Elyria hired men for positions

that differed from what they specified in their job applications and, therefore, Elyria’s decision to

consider Peck only for employment as a grinder or tow motor operator may be indicative of gender

discrimination.

        As the majority finds, Peck listed “Grinder - Tomotor - ?” on her application in the field titled

“Position Sought.” Elyria explains that it believed Peck was seeking a position as either Grinder or

Tow Motor. The majority, however, infers that the “?” implies that Peck also “wanted to be

considered for positions besides tow motor operator or grinder.”

        The majority holds that the question mark meant that Peck was seeking consideration for

other positions besides grinder and tow motor and supports its conclusion by referencing another

question mark Peck placed in the “Expected Monthly Salary or Hourly Wage” field. The majority

reasons that because Peck added a “?” under salary, and no one expects that the question mark there

would mean she would work for free, then somehow a question mark after “Tomotor” indicates that
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 23

she wanted to be considered for jobs other than those listed. In essence, the majority takes a

punctuation symbol, and turns it into a “fact,” i.e., that Peck intended to apply for other positions,

and because Peck had that intent, Elyria showed discriminatory animus by not reading the

application that way. However, the question mark is not a “fact,” let alone one that creates “a

genuine issue of material fact” of gender discrimination or pretext. See Fed. R. Civ. P. 56(c). The

question mark can mean any number of things; indeed, one dictionary definition of “question mark”

is “something unknown, unknowable, or uncertain.” Webster’s Ninth New Collegiate Dictionary

966 (1988). Thus, any interpretation we may have is sheer speculation in the absence of any other

relevant proof. The burden of bringing forth that “other relevant proof” is on Peck to show that

Elyria understood what Peck meant by the question mark and ignored her desire to be considered for

“any position” because she is a woman. Peck has not done so here.

        Instead, Peck’s complaint supports the district court’s view that Peck applied only to work

as a grinder or tow motor operator. In her complaint, Peck avers that she “applied for various

positions with Defendant on or about May 25, 2004,” (JA 8), but nowhere in her complaint does she

allege that she was applying for any positions other than those listed. Indeed, as she further explains

in the same paragraph of her complaint, “Despite the fact that Plaintiff was qualified for these

positions with Defendant having over five years experience in various capacities in the industry, the

Defendant failed to hire her, but instead hired numerous males who were far less qualified.” (Id.

(emphasis added).) Peck’s language–that she was qualified for “these” positions–indicates that she

was applying for specific positions, namely the two listed on her job application, because she

obviously cannot claim to be qualified for a “?” position. Therefore, it was reasonable for the district
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 24

court and Elyria to believe that Peck was applying for the two positions she listed on her job

application–grinder and tow motor operator.

       Even if the district court and Elyria misinterpreted this confusing “?” on Peck’s job

application, proving that Elyria failed to clue in to Peck’s desired employment does not prove

pretext. The fact remains that Elyria had an honest and reasoned belief that Peck was applying for

two specific positions because those were what Peck clearly listed on the application. And under

this Court’s articulation of the “honest belief rule,” “for an employer to avoid a finding that its

claimed nondiscriminatory reason was pretextual, ‘the employer must be able to establish its

reasonable reliance on the particularized facts before it at the time the decision was made.’” Wright

v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (quoting Smith v. Chrysler Corp., 155 F.3d

at 806). This Court does not “micro-manage the process used by employers in making employment

decisions,” nor does it require “that the decisional process used by the employer be optimal or that

it left no stone unturned.” Smith, 155 F.3d at 807. Instead, our inquiry is whether Elyria “made a

reasonably informed and considered decision before taking an adverse employment action.” See id.

Here, regardless of Peck’s intentions behind adding the question mark, Peck only included two

words, the second of which was misspelled, on her application for positions sought. It was thus

reasonable for Elyria to conclude that those were the two jobs for which Peck was applying. Peck

has failed to develop the record to support the majority’s conclusion that Elyria should have

considered Peck for any and all jobs it had available.

       Further, Peck has not presented evidence that she qualified for the few positions that Elyria

filled with applicants who did not apply for them. And choosing to wait on Peck’s application until
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 25

Elyria could finish renovating the bathroom for its female employees is an unrebutted and legitimate

reason for deferring on Peck’s application for any open positions. It does not follow that Elyria

failed to consider Peck for “other” positions, i.e., treated Peck’s application differently, solely

because Elyria chose to hold Peck’s application until Elyria believed that a suitable position was

available.

       In reaching its holding, the majority reasons, inter alia, that “Elyria has pointed to no

evidence that the medical condition that it purportedly believed disqualified Peck as a grinder would

have prevented her from holding other positions at the foundry.” However, the majority misapplies

the law in this Circuit by requiring Elyria to provide “evidence that the medical condition that it

purportedly believed disqualified Peck as a grinder would have prevented her from holding other

positions at the foundry.” This Court has consistently held that once an employer articulates a

legitimate reason for taking its employment decision, the burden is on the applicant, not the putative

employer, to demonstrate that the proffered reason for failing to consider the applicant was

pretextual. See, e.g., Abdelnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 502 (2007)

(holding that once the defendant has set forth a “legitimate non-discriminatory reason” for the

adverse employment decision, the burden shifts to the plaintiff “‘to prove by a preponderance of the

evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a

pretext for discrimination’”) (quoting DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004)).

Contrary to the majority’s reasoning, it was not for Elyria to offer a legitimate reason and then prove

that it was not pretextual. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 26

(“The defendant need not persuade the court that it was actually motivated by the proffered reasons”

in order to fulfill its burden under the second step of the McDonnell Douglas framework.).

        In the end, the question of whether Peck meant to apply for two jobs or any open job is

irrelevant because Denise Sprague repeatedly and consistently testified that she was considering Peck

for other jobs, but that Peck’s medical issues, the lack of available restroom facilities, and the lack

of job openings prevented Peck’s immediate hire. For example, when Peck’s attorney asked why

Sprague never called Peck for an interview, Sprague testified that she did not immediately call Peck

because “[h]er application was based on chipping and grinding,” and because Sprague believed “she

had the beginnings of carpal tunnel.” (JA 211.) Peck’s attorney then asked why Sprague considered

Peck for those two positions only. Sprague replied that she did not limit her consideration to those

two positions:

Q.      But in your case, you limited her to the jobs that you felt that she was – wanted to do, just
        grinder and tow motor operator?
A.      No. That’s not true.

(JA 213 (emphasis added).) Peck’s attorney pressed the issue:

Q.      I asked the question – the question that I asked you was, did you consider her for any other
        job, other than grinder and tow motor?
A.      Her application was set aside, and until there were proper women’s facilities – it was not
        that I did not consider her for any other position; it was set aside.

(JA 214 (emphasis added).) Peck’s attorney asked the question again, and Sprague replied with the

same answer that she was still considering Peck for other positions, but set aside her application until

the women’s facilities were completed:

Q.      Why wouldn’t you consider her for anything else, other than grinder and tow motor?
A.      I needed to get proper facilities for the women, and it was set aside on my desk.
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 27

(JA 214.)

       In other exchanges on the issue in the same deposition, Sprague explained that she was still

considering Peck for other positions, but her application was set aside until the women’s facilities

were completed, she did not believe she had other suitable openings, and because Peck may have had

carpal tunnel:

Q.     Showing you what has been marked as Plaintiff’s Exhibit 15, just to go back before we get
       into that. And you didn’t consider her for any other jobs like yard work or anything like that?
A.     Not at the time. I don’t believe I had any openings. And when she had the carpal tunnel and
       I didn’t have the women’s facility, I was putting it on the side.

(JA 222.)

Q.     Why didn’t you ever interview my client for core finishing jobs?
A.     I set it aside after I found out from Gary that there was potential that she had carpal tunnel.
       And I also set it aside to get the locker facilities fixed. And when I got the letter [threatening
       legal action], I stopped.

(JA 239.)

       As such, Sprague’s testimony clearly shows that Peck was being considered for “other”

positions–a tow motor position at the least should one open up–and that Elyria was taking account

of Peck’s muscular problems and the lack of adequate bathroom facilities in deciding what positions

Peck would be best suited to perform. The record further shows that Elyria refused to consider Peck

only after her attorney drafted the letter threatening to sue. Peck has not challenged the fact that she

was removed from a previous grinding position for muscular problems in her arms. Nor has she

refuted Elyria’s contention that it was renovating the women’s facilities. And most significantly,

Peck has not introduced evidence rebutting Elyria’s contention that it was still considering Peck up

to the time Peck’s attorney sent the letter. To the contrary, in her own affidavit and brief, Peck
No. 08-3301
Carol Peck v. Elyria Foundry Co.
Page 28

corroborates Sprague’s explanation that Elyria was still considering Peck for employment until

Peck’s attorney threatened legal action. (See JA 115; App Br 19-20, 26-27.) Therefore, Peck has

placed no evidence on the record that her application was treated differently than similarly situated

males by failing to consider her for other positions.

                                                III.

       I agree with the majority’s conclusion that the district court analyzed only Elyria’s

explanations of why it did not hire Peck for the grinding and tow motor positions. I believe,

however, that Elyria adequately and undisputedly explained that it was considering Peck for other

positions once its facilities were completed. And because we review the district court’s grant of

summary judgment de novo, “we may affirm the judgment on grounds other than those employed

by the lower court, as long as the party opposing summary judgment is not denied the opportunity

to respond.” Thornton v. Fed. Express Corp., 530 F.3d 451, 456 n. 2 (2008) (citing Carver v.

Dennis, 104 F.3d 847, 849 (6th Cir. 1997)). Here, for the reasons discussed above, Peck has failed

to rebut Elyria’s proffered reasons for deferring consideration of her job application. Therefore, I

would affirm the judgment for the reasons stated in my dissent.
