                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0186n.06

                                        Case No. 19-1773

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Mar 31, 2020
                                                 )                          DEBORAH S. HUNT, Clerk
 GREGORY STOKES,                                 )
                                                 )
         Plaintiff-Appellant,                    )        ON APPEAL FROM THE UNITED
                                                 )        STATES DISTRICT COURT FOR
 v.                                              )        THE EASTERN DISTRICT OF
                                                 )        MICHIGAN
 DETROIT PUBLIC SCHOOLS,                         )
                                                 )                       OPINION
         Defendant-Appellee.                     )
                                                 )


BEFORE: GRIFFIN, WHITE, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. Gregory Stokes worked for Detroit Public Schools (DPS)

for almost ten years. In his last position, he worked as the Acting Deputy Executive Director to

the Executive Director of Human Resources. He signed a six-month contract to serve in that role.

Near the end of his contract, Stokes applied for a job as the Executive Director-Talent Acquisition.

After interviewing three candidates, including Stokes, DPS hired a twenty-eight-year-old female

instead. And DPS did not move Stokes to another position after his contract expired, ending his

employment with DPS. Stokes filed this lawsuit, alleging failure to promote and unlawful

discharge because of gender in violation of Title VII and Michigan’s Elliott-Larsen Civil Rights

Act (ELCRA) and age in violation of the Age Discrimination in Employment Act (ADEA) and

ELCRA. The district court granted DPS’s motion for summary judgment. Because Stokes has

shown a genuine issue of material fact as to pretext for his Title VII and ADEA claims, we



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No. 19-1773, Stokes v. Detroit Public Schools


REVERSE and REMAND. But since he has failed to meet his burden of showing pretext under

Michigan law for the ELCRA claims, we AFFIRM the district court’s decision to grant summary

judgment to DPS on those claims.

                                                 I.

       Stokes started working for DPS in 2006 as the Human Resources (HR) Administrator to

the Executive Director of HR and became the Talent Acquisition Manager to the Executive

Director in 2010. Though acting with different titles, his duties remained the same in both roles.

He advertised job opportunities, posted openings, helped oversee the interview processes, screened

resumes, corresponded with candidates, attended job fairs, and interpreted the collective

bargaining agreement, to name a few responsibilities.

       DPS then promoted Stokes in 2013. He became the Interim Executive Director to the Chief

HR and Labor Relations Officer and then the Acting Deputy Executive Director to the Executive

Director of HR in July 2015. Interim Executive Director and Acting Deputy Executive Director

consisted of the same responsibilities, again just under different titles. In these roles he supervised

a recruitment team, helped the school district implement an enhancement of the HR system, acted

as a liaison between DPS and colleges to identify talent, worked with Teach for America to identify

talent, acted as a liaison between the unions and the school district, screened resumes, coordinated

the interview process, and onboarded new employees.

       When he accepted the Acting Deputy Executive Director title, Stokes signed an

employment agreement that said he would serve in that position for a six-month term, from July

1, 2015 until December 31, 2015. On October 22, 2015, the Emergency Manager of DPS, Darnell

Earley, sent Stokes a letter reiterating to him that his contract would expire on December 31, 2015

because of “[e]conomic [n]ecessity and/or [] [r]eorganization.” (R. 16-6, Letter, PageID 843.)




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No. 19-1773, Stokes v. Detroit Public Schools


Earley encouraged Stokes to apply for a teaching position or another administrative position.

Stokes had received similar letters with largely the same content for two years, since he became

Interim Executive Director to the Chief HR and Labor Relations Officer. Yet DPS always renewed

his position, so this October 22 letter didn’t seem meaningful to him.

       Around the time Stokes’s title changed to Acting Deputy Executive Director, DPS

contracted with The New Teacher Project, Inc. (TNTP), a consulting group, to help restructure

how the school district was run. DPS and TNTP executed a contract on June 15, 2015, and the

two amended the contract in 2016. Some of TNTP’s September 2015 to January 2016 goals

included: (1) “[f]inaliz[ing] the central office structure,” (2) “creat[ing] new job descriptions for

the new central office structure[,]” (3) “[d]esign[ing] an application and selection process for

central office hiring and provid[ing] direct support on prescreening, phone screening, and

interviewing for select roles[,]” and (4) “[a]ct[ing] as a strategic advisor to the Division of [HR]

on the implementation of central office reductions.” (R. 16-7, First Am., PageID 850–52.) So

TNTP, not DPS, mainly held responsibility for eliminating Stokes’s position, creating the new

Executive Director-Talent Acquisition (EDTA) position, and interviewing for the EDTA position.

       Chanel Hampton, a twenty-eight-year-old female, external applicant, applied to DPS for

the job of Deputy Superintendent of Talent on November 3, 2015. She submitted her cover letter

and a resume,1 but seemingly did not submit transcripts from schools she attended. Her resume




1
  Stokes argues that Hampton “padded” her resume because some of her jobs overlapped in
different cities. Nicholas Denton-Brown, a Talent Acquisition Manager for TNTP, explained that
all the jobs listed on her resume were compatible. Because of the way Teach for America works,
he explained, she could have multiple roles at Teach for America at one time, while still teaching
too. Errick Greene, Earley’s Special Assistant, confirmed this as well.



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No. 19-1773, Stokes v. Detroit Public Schools


showed that she had worked as a teacher for St. Louis Public Schools and in various positions at

Teach for America.

       A Talent Acquisition Manager for TNTP, Nicholas Denton-Brown, worked with DPS

during this time. He helped recruit individuals for the new positions TNTP created for DPS during

the restructuring. Denton-Brown and the others working to fill the EDTA role thought that

Hampton did not meet the qualifications for the Deputy Superintendent of Talent position after

seeing her application and speaking informally with her on the phone. But Denton-Brown thought

she met the qualifications for the EDTA role and would fit the position well. So he redirected her

to the EDTA job instead.

       After Denton-Brown informally prescreened Hampton, Errick Greene, the Special

Assistant to the Emergency Manager of the district, apparently prescreened her too.2 According

to an email, Greene and Emergency Manager Earley met with Hampton on December 3, 2015 and

seemed to think she did not have the experience for the Deputy Superintendent position. But they

“were both impressed by her” and wanted “to move her through the application/hiring process for

the ED Talent position.” (R. 15-14, Emails, PageID 392.) Denton-Brown learned of their interest

in Hampton and worked with the TNTP Project Manager, Chris Henderson, to get the job posted

quickly. This is because Hampton had another job offer at the time, and TNTP could not offer her

a job before the job had posted. Hampton apparently did not submit a new cover letter geared

toward the EDTA position.

       TNTP posted the EDTA job from December 7 to December 11, 2015. Although DPS

normally held job application periods open for ten to fourteen days at that time, TNTP chose to




2
 Denton-Brown said Greene would have screened Hampton. Greene, however, could not recall
many circumstances surrounding this situation when opposing counsel deposed him years later.


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No. 19-1773, Stokes v. Detroit Public Schools


keep the period open only for those five days. The day before TNTP closed the application period,

TNTP Site Manager, Megan Allegretti, emailed Denton-Brown and mentioned in passing Denton-

Brown’s experience with creative writing. Denton-Brown responded: “[A]nd suddenly a dragon

appeared, tendrils of smoke drifting from his molten nostrils, to drag off the interim ED of Talent

to ensure that schools be could [sic] effectively staffed for all!” (R. 15-22, Emails, PageID 559.)

Stokes, of course, was at the time Acting Deputy Executive Director to the Executive Director of

HR, which was named Interim Executive Director shortly before. Allegretti then replied: “On

that note, looks like you are the dragon for now. Just pulled Gregory’s resume from PeopleSoft

for ED, Talent. Only new resume added today. Let me know if you need anything else on moving

William and Gregory forward.” (Id.) Denton-Brown then said “Ugh!” (Id.) Chanel Hampton,

Greg Stokes, and Will Lyons, who was an HR Manager with DPS, were the three applicants for

the EDTA position at the close of business on December 11.

       That same day, Chris Henderson, Denton-Brown, and Allegretti exchanged emails about

making sure TNTP conducted the interview process fairly, given the “sensitivity” of Lyons and

Stokes applying for the position too: “Given that Gregory and Will Lyons have applied for the

ED Talent position, I want to make sure we are on point procedurally so that our process can [be]

defended and clear records are in place.” (R. 15-25, Email, PageID 607.) And further into the

email Henderson also said: “I think we’ll be OK as look [sic] as we have clearly defined processes

in place and Will and Greg both get interviews[.]” (Id.) He pointed out some bases they should

cover beforehand, like providing interview rubrics to the panel, having the rubrics approved by the

Executive Director of HR, training interviewers, collecting signed conflict of interest forms from

phone screeners and interviewers, and collecting notes from Greene and Earley on their opinions

of Hampton. Henderson also wanted to “obtain confirmation that [Hampton] does not need to go




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No. 19-1773, Stokes v. Detroit Public Schools


through the process again.” (Id.) Presumably he was referencing the pre-interview process. It

appears Denton-Brown responded in part that he had “several examples of others not having to go

through the same selectin [sic] process here so we have precedents, especially when [Emergency

Manager Earley] has already interviewed folks.” (Id.)

          Denton-Brown conducted pre-screening interviews for Stokes and Lyons. Then Stokes,

Lyons, and Hampton all interviewed for the job on December 18, 2015. Orma Smith and Greg

Vary, both Deputy Network Leaders of Operation at DPS, and Errick Greene were the

interviewers. The three interviewers received some degree of guidance on how to interview

beforehand. And they signed interview guidelines and a document saying they understood the

nepotism policy and had no conflicts of interest with any candidates. The parties did not produce

a signed interview guidelines sheet for Errick Greene, however, and he does not recall signing one.

Candidates had to receive an average score of 80 or above from these interviewers to be eligible

for the position.

          After the interviews, the interview panel recommended Hampton for the EDTA job. She

received an average score of 83.6 from the interviewers, Lyons received an average score of 81,

and Stokes received an average score of 63.3. Interviewer Vary filled out a scoring sheet for “Greg

Stokes” and one for a “Will Stokes.” But a sheet showing calculations of Vary’s scores after the

interview has “Greg Stokes” listed above the numbers that someone added up to 643 and “Will

Lyons” listed above the numbers that someone added up to 84.4 And the numbers in those two

columns correspond to the numbers given for the eight subsections on the “Greg Stokes” and “Will



3
    Though a correct calculation of those values shows a total less than 64.
4
 Someone also incorrectly tallied this total. It should have been a 76 from Vary, meaning Will
Lyons’s average score should have been lower. To add to the confusion, in the final “total” box
on Vary’s “Will Stokes” scoresheet, someone (assumedly Vary) wrote a 64.


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No. 19-1773, Stokes v. Detroit Public Schools


Stokes” scoresheets, respectively. Then on the final recommendation sheet from the panel, Vary’s

score for Greg Stokes reads 64 and his score for Will Lyons reads 84.

       Cassandra Washington, the Executive Director of HR, explained that the interview process

for the EDTA job consisted of several irregularities compared to how DPS conducted interviews

before. She admitted that some inconsistencies like the ones in the EDTA interview process would

normally require that the district interview the candidates again. But she also clarified that TNTP,

not DPS, held responsibility for the EDTA interview process and that the application procedures

and polices “were modified by the TNTP.” (R. 15-10, Washington Dep., PageID 317.) She did

not explain what procedures or policies TNTP modified, though. She noted that emergency

managers can make decisions without restriction by district policies or procedures.

       Hampton started the job shortly after she received the offer. DPS extended Stokes’s

contract one more month so that he could finish outstanding projects. He apparently helped

familiarize Hampton with some of DPS’s systems during this time too. According to Stokes, his

retirement would have fully vested a few weeks after his job at DPS ended.

       Stokes then filed this lawsuit, alleging unlawful discharge and failure to promote because

of age under the ADEA and ELCRA and gender under Title VII and ELCRA. The district court

granted DPS’s motion for summary judgment on all claims. This appeal followed.

                                                II.

       We review a grant of summary judgment de novo. Redlin v. Grosse Pointe Pub. Sch. Sys.,

921 F.3d 599, 606 (6th Cir. 2019). Viewing the evidence in the light most favorable to the

nonmoving party, we affirm if “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

Redlin, 921 F.3d at 606.




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No. 19-1773, Stokes v. Detroit Public Schools


                                                III.

       Plaintiffs can use either direct or indirect evidence to support discrimination claims. When

a plaintiff puts forth direct evidence, the factfinder need not draw any inferences to conclude that

the employer wrongfully discriminated. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570

(6th Cir. 2003) (en banc). But if a plaintiff puts forth sufficient indirect evidence, we may “draw

a reasonable inference that discrimination occurred.” Id. When a plaintiff uses indirect evidence

to support a claim under Title VII, the ADEA, or the ELCRA, the McDonnell Douglas burden-

shifting framework applies. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Geiger

v. Tower Auto., 579 F.3d 614, 622, 626 (6th Cir. 2009) (applying McDonnell Douglas in the ADEA

and ELCRA context); Wright v. Murray Guard, Inc., 455 F.3d 702, 706–07 (6th Cir. 2006)

(explaining that McDonnell Douglas applies to Title VII single-motive claims).

       Under McDonnell Douglas, a plaintiff must first establish a prima facie case of

discrimination. Then the burden of production shifts to the defendant to show a legitimate,

nondiscriminatory reason for the way it treated the plaintiff. If the defendant provides that reason,

the burden of production shifts back to the plaintiff to show that the defendant’s articulated reason

was pretext for discrimination. Miles v. S. Cent. Human Res. Agency, Inc., 946 F.3d 883, 887 (6th

Cir. 2020).

        For its summary judgment motion only, DPS conceded that Stokes presented a prima facie

case for all his claims. So DPS next had the burden of showing a legitimate, nondiscriminatory

reason for discharging and not promoting Stokes. DPS did. It says (1) that Stokes performed

poorly in his interview and (2) he was not the best candidate for the job because DPS struggled to

recruit new teachers while Stokes was Acting Deputy Executive Director. See White v. Baxter

Healthcare Corp., 533 F.3d 381, 392 (6th Cir. 2008) (noting that poor interview performance is a




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No. 19-1773, Stokes v. Detroit Public Schools


legitimate, nondiscriminatory reason); Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 588 (6th

Cir. 2002) (finding that not performing satisfactorily constitutes a legitimate, nondiscriminatory

reason). So the burden of production shifts back to Stokes to show that DPS’s reasons were

pretextual. A plaintiff normally establishes pretext by showing that the proffered reason: (1) “had

no basis in fact,” (2) “did not actually motivate the employer’s action,” or (3) was “insufficient to

motivate the employer’s action.” Miles, 946 F.3d at 888 (quoting Chen v. Dow Chem. Co., 580

F.3d 394, 400 (6th Cir. 2009)). But a plaintiff need not follow these categories rigidly. Id.

Plaintiffs remain free to try to show pretext in whatever way they see fit. Id.

       Stokes does not separate out his failure to promote and unlawful discharge arguments, so

we analyze them as one.5 Similarly, he mainly does not distinguish between his pretext arguments

for gender and age discrimination, so we analyze his pretext arguments as applying to both sets of

claims. But we do analyze his claims in the context of Title VII and the ADEA first and then the

ELCRA second. And within our Title VII and ADEA analysis, we look separately at whether

Stokes has shown that each of DPS’s proffered reasons are pretextual. First, we look at DPS’s

claim that Stokes performed poorly during his interview. Second, we look to DPS’s claim that

TNTP did not believe that Stokes was the best candidate for the job because DPS continued to

struggle to attract teachers with Stokes as Acting Deputy Executive Director.

       Stokes’s pretext arguments fall under the first and second pretext categories: that DPS’s

proffered reasons lacked a basis in fact or the reasons did not actually motivate DPS’s actions.




5
  We fail to see how this case involves an alleged unlawful discharge, because Stokes was on a
six-month contract. When a contract ends and an employee is not hired in a new position, of course
they would be discharged from the company. But DPS has not argued that this claim lacks merit,
so we treat it the same as Stokes’s failure to promote claim.


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No. 19-1773, Stokes v. Detroit Public Schools


                                                 IV.

                                                 A.

                                                  1.

       DPS argues that it did not select Stokes for the EDTA position because of his interview

performance. In response, Stokes says that the irregularities in the interview process constituted

pretext for age and gender discrimination. Stokes provides evidence of irregularities during the

process, compared to how DPS usually conducted other interviews. For instance, Hampton did

not provide her transcripts, even though DPS had required candidates’ transcripts for other

positions in the past. And the application period closed after five days, which was shorter than

normal. In addition, the interviewers allegedly did not unanimously decide to recommend

Hampton for the role, even though the decision was supposed to be unanimous. Vary said to the

best of his recollection, he liked Lyons more than Hampton. And no party has produced evidence

of Greene’s signature on the interview guidelines. What’s more, a discrepancy occurred with

Vary’s scores. He filled out another scoresheet with the name “Will Stokes” and ultimately gave

that individual an 84 (even though the final box said 64). Then he filled out a sheet for “Gregory

Stokes,” giving him a 64 after the tally. So Stokes argues that these discrepancies provide evidence

of pretext, especially because Washington admitted that DPS would redo the interview process if

some of these discrepancies occurred.

       But DPS retorts that DPS hired TNTP to restructure the whole system, including the

interview process, so no formal interview policy bound TNTP to perform this EDTA interview in

a certain manner. Thus, TNTP could decide against requiring transcripts, redoing the interviews

even if an initial scoring error seemed to exist, and so on.




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No. 19-1773, Stokes v. Detroit Public Schools


       Assuming TNTP had to follow these policies, and viewing the evidence in the light most

favorable to Stokes, irregularities in a company’s interview process alone do not constitute pretext

sufficient to overcome summary judgment. See Jenkins v. Nashville Pub. Radio, 106 F. App’x

991, 995 (6th Cir. 2004) (finding that irregularities were only a factor toward a finding of pretext,

not dispositive). “[A]n employer’s failure to follow self-imposed regulations or procedures is

generally insufficient to support a finding of pretext.” Miles, 946 F.3d at 896 (quoting White v.

Columbus Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005)). What’s more, Briggs v. Potter

suggests that Stokes must show how the “irregularities prejudiced him in the selection process or

indicate ‘any dishonesty or bad faith’ on behalf of” DPS. 463 F.3d 507, 516 (6th Cir. 2006)

(quoting Williams v. Columbus Metro. Hous. Auth., 90 F. App’x 870, 876 (6th Cir. 2004)). Here

Stokes has failed to do so. He has not explained: why having Hampton’s transcripts would have

made a difference; why Vary’s messed up scoring would have meant Stokes’s weighted score

would have been over 80; why a unanimous decision, instead of two of the three decisionmakers

choosing him, would have meant that TNTP would have ultimately hired him for the role; or why

Greene allegedly not signing the interview guidelines, but signing the conflict of interest sheet,

would have changed the outcome. Thus, even assuming TNTP could not change the interview

process and irregularities existed, these “inconsistencies . . . relate entirely to matters of process

and have no bearing on [DPS’s] reasons for not promoting [Stokes].” Id.; see also Plumb v. Potter,

212 F. App’x 472, 480–81 (6th Cir. 2007) (finding no pretext even though the employer did not

follow two policies).

       And these inconsistencies in the process do not show bad faith. TNTP found itself in a

unique situation in which it had the task of restructuring the district, meaning differences in

operation would understandably occur. Plus, it sought to fill a role where the usual person who




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No. 19-1773, Stokes v. Detroit Public Schools


helped manage interviews was one of the candidates. So these variances in no way show bad faith

on TNTP’s part. Overall, these alleged irregularities do not rise to a level of establishing a genuine

dispute as to pretext for Stokes’s Title VII and ADEA claims.

                                                  2.

       Stokes next argues that he possessed far better qualifications than Hampton for the EDTA

role. Stokes argues that as Acting Deputy to the Executive Director, he had been performing the

essential responsibilities of the EDTA position, and Hampton had only a few years of experience

with Teach for America.

       Qualifications evidence is “relevant to the question of pretext.” Bender v. Hecht’s Dep’t

Stores, 455 F.3d 612, 626 (6th Cir. 2006). In Bender, we clarified how this court assesses

qualifications evidence:

       In the case in which a plaintiff does provide other probative evidence of
       discrimination, that evidence, taken together with evidence that the plaintiff was as
       qualified as or better qualified than the successful applicant, might well result in
       the plaintiff’s claim surviving summary judgment. On the other hand, in the case
       in which there is little or no other probative evidence of discrimination, to survive
       summary judgment the rejected applicant’s qualifications must be so significantly
       better than the successful applicant’s qualifications that no reasonable employer
       would have chosen the latter applicant over the former. In negative terms, evidence
       that a rejected applicant was as qualified or marginally more qualified than the
       successful candidate is insufficient, in and of itself, to raise a genuine issue of fact
       that the employer’s proffered legitimate, non-discriminatory rationale was
       pretextual.

Id. at 626–27 (citation omitted).      What’s more, a plaintiff’s subjective assessment of his

qualifications alone does not show pretext. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462

(6th Cir. 2004).

       Yes, Stokes had more years working in HR or recruitment, as he emphasizes. But Hampton

had actual teaching experience. So she could have better related to teachers applying to the district,

known how to attract teachers to the district, and better understood which applicants were best



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No. 19-1773, Stokes v. Detroit Public Schools


suited to become teachers. DPS (through TNTP) saw that Hampton might be able to bring fresh

strategies and perspectives to the district, which may successfully help the district attract new

teachers. A reasonable decisionmaker could find that Hampton was better suited for the job for

these reasons.    And “[i]f two reasonable decisionmakers could consider the candidates’

qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one

candidate’s qualifications are not significantly better than the other’s. Thus, [the] qualifications

evidence is not itself sufficient . . . to survive summary judgment.” Bender, 455 F.3d at 628.

       Stokes’s subjective opinion that more years of working automatically means better

qualifications does not suffice. When looking at two qualified applicants, DPS (through TNTP)

made a business decision to select Hampton, with the thought that she might fill more teaching

vacancies. So we will not call into question this hiring criteria. See Browning v. Dep’t of the

Army, 436 F.3d 692, 698 (6th Cir. 2006) (“Questioning the [employer’s] hiring criteria is not

within the province of this court, even if the [employer’s] hiring process was entirely subjective.”).

Stokes has failed to show a genuine issue of material fact as to pretext for his Title VII and ADEA

claims based on qualifications evidence.

                                                  3.

       It’s Stokes’s last argument—that DPS (through TNTP) preselected Hampton for the EDTA

position—that creates a genuine dispute as to pretext for Stokes’s Title VII and ADEA claims. We

have held that “preselection is relevant evidence of [an] employer’s motivation,” and it “operates

to discredit the employer’s proffered explanation for its employment decision.” Goostree v.

Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). Because DPS planned to offer Hampton the position

before the interview, Stokes has shown a genuine issue of material fact as to whether the interview

scores were the actual motivation behind DPS not hiring him for the position. Stokes points to an




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No. 19-1773, Stokes v. Detroit Public Schools


email sent by Denton-Brown on November 30, 2015, a few weeks after Hampton initially applied,

in which he, among other things, asked members of his team where Hampton’s status stood. He

mentioned, “Ideally she would interview for [the Deputy Superintendent of Talent] role and, if

strong but not quite qualified for that position as we and Errick Greene suspect, she would be

offered the [EDTA] position.” (R. 16-11, Email, PageID 1014 (emphasis added).) Saying that

Hampton “would be offered” the position implies that TNTP preselected her. Stokes also points

to an email from December 3, 2015 from Henderson to Emergency Manager Earley saying:

“[Hampton] has a competing offer she needs to respond to, so if you think she is the right fit we

will potentially have to keep her interested for a couple of weeks or find an alternative solution to

bring her on board quickly.” (R. 15-14, Emails, PageID 392.) And Stokes points to an email from

Greene saying: “Mr. Earley would like to move [Hampton] through the application/hiring process

for the ED Talent position. Obviously, we’d like to start and conclude the process as quickly as

possible.” (Id.)

        Thus, Stokes has shown that TNTP may have preselected Hampton—or at least that a

rational juror could make that finding. And this could “operate[] to discredit” DPS’s claim that

the poor scores from Stokes’s interview motivated the decision to not renew his contract or not

promote him because the preselection occurred before the interview. A jury could conclude that

the interview scores were not the reason DPS did not pick Stokes for the EDTA role, because DPS

selected Hampton weeks before.        Since we’ve noted that preselection alone can refute a

defendant’s proffered reason, Kimble v. Wasylyshyn, 439 F. App’x 492, 500 (6th Cir. 2011),

Stokes has shown that there is a genuine dispute regarding whether DPS’s interview justification

is pretextual.




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No. 19-1773, Stokes v. Detroit Public Schools


       So even though Stokes did not show pretext through the irregularities or qualifications

evidence, he has provided enough evidence to show a genuine issue of material fact as to pretext

through the preselection evidence.6

                                                  B.

       DPS also contends that it did not hire Stokes for the EDTA position because Stokes was

not the best fit for the role. DPS explains that it struggled to attract teachers while Stokes was

Acting Deputy Executive Director, though DPS does not point to any specific records to support

this. But Denton-Brown explained during his deposition that during the few years that Stokes

filled the Interim Executive Director and Acting Deputy Executive Director positions, Stokes

failed to fill hundreds of teaching vacancies in the district.

       In response, Stokes explains that this issue never came up during his evaluations. He

received a “satisfactory” rating in January 2015 for “[c]ompletes work assignments” and “[a]bility

to follow through on a plan with minimal or no direction[.]” His ratings in June 2015 moved up

to “commendable” for those two categories. He also received a “commendable” rating for the

category that said, “meets established performance standards[;] does not produce substandard

products or services[.]” And he received “exceptional” and other “commendable” ratings in other,

less relevant categories. (R. 15-3, Evaluations, PageID 145–54.) The closest an evaluation came

to showing that Stokes was not the best fit for the role because DPS still struggled to fill open

teaching positions came from his June 30, 2015 evaluation:




6
 Stokes also argues circumstantial evidence of age discrimination through Vary’s statements that
Hampton was more “enthusias[tic]” and “energetic” than Stokes. (R. 23-18, Vary Dep., PageID
2463.) But as the district court correctly pointed out, the use of “enthusiastic” and “energetic” do
not suffice to create a genuine issue of material fact as to pretext for age discrimination. See
Sander v. Gray Television, 478 F. App’x 256, 266 (6th Cir. 2012); see also Crabbs v. Copperweld
Tubing Prods., 114 F.3d 85, 89 (6th Cir. 1997).


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No. 19-1773, Stokes v. Detroit Public Schools


       Greg would be even more effective if he were more persistent and insightful in
       searching out the root cause of problems he encounters which impact quality and
       operations of TA (e.g., TA team’s inability to accelerate the recruitment time line
       and develop an effective process for screening and on-boarding teachers).

(Id. at 151.) These evaluations support both sides. On one hand, Stokes performed well and had

good evaluations. But at the same time, there is a question whether he filled teaching roles

effectively, such that he was the right candidate for the EDTA job.

       That being said, good evaluations are enough to overcome allegations of poor performance.

See Cicero, 280 F.3d at 591–92 (“While [defendant] now says that [plaintiff] failed in several ways

throughout his employment, it never raised any serious complaints about his performance until

after it fired him.”). Although DPS raised a complaint in that June evaluation, Stokes also received

satisfactory, commendable, and exceptional ratings. So Stokes has shown a genuine issue of

material fact as to whether DPS’s reason—that Stokes was not the best fit for the role because DPS

still struggled to attract teachers—was based in fact. Thus, Stokes establishing a prima facie case

of discrimination, plus his showing of a genuine issue of material fact over the truthfulness of

DPS’s proffered reasons, is enough to survive summary judgment. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (If a plaintiff makes out a prima facie case and

provides “sufficient evidence to find that the employer’s asserted justification is false,” a trier of

fact “may . . . conclude that the employer unlawfully discriminated.” (emphasis added).)7 So we

reverse and remand on his Title VII and ADEA claims.




7
  We recognize that Reeves outlined rare occasions when a prima facie case plus the plaintiff
refuting the employer’s proffered reasons may still result in summary judgment for the employer:



                                                 16
No. 19-1773, Stokes v. Detroit Public Schools


                                                V.

       Unlike Title VII and ADEA claims, in which a plaintiff need only show pretext,

       Michigan law imposes a higher burden on plaintiffs after the employer has
       presented a legitimate, non-discriminatory reason for its employment actions.
       Specifically, Michigan law requires that the plaintiff show that the employer’s
       stated reason is pretext for discrimination. In Lytle, the [Michigan Supreme]
       [C]ourt stated: [D]isproof of an employer’s articulated reason for an adverse
       employment decision defeats summary disposition only if such disproof also raises
       a triable issue that discriminatory animus was a motivating factor underlying the
       employer’s adverse action. In other words, plaintiff must not merely raise a triable
       issue that the employer’s proffered reason was pretextual, but that it was a pretext
       for . . . discrimination.

Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 438–39 (6th Cir. 2002) (third and fourth

alterations in original) (citations omitted) (quoting Lytle v. Malady, 579 N.W.2d 906, 916 (Mich.

1998)). We noted that the Michigan Supreme Court decided Lytle before Reeves but found that

Lytle still seemed to be good law in Michigan. Id. at 439; see Hazle v. Ford Motor Co., 628

N.W.2d 515, 522 (Mich. 2001).

       Here, Stokes has shown no evidence that discriminatory animus motivated DPS’s decision

not to hire Stokes as EDTA. He’s provided no indication that age or gender had anything to do

with the decision.     The best he can point to are Vary’s statements that Hampton was

“enthusias[tic]” and “energetic,” but as described above, statements like that do not create a



       Certainly there will be instances where, although the plaintiff has established a
       prima facie case and set forth sufficient evidence to reject the defendant’s
       explanation, no rational factfinder could conclude that the action was
       discriminatory. For instance, an employer would be entitled to judgment as a matter
       of law if the record conclusively revealed some other nondiscriminatory reason for
       the employer’s decision, or if the plaintiff created only a weak issue of fact as to
       whether the employer’s reason was untrue and there was abundant and
       uncontroverted independent evidence that no discrimination had occurred.
530 U.S. at 148; see Alberty v. Columbus Twp., 730 F. App’x 352, 360 (6th Cir. 2018) (applying
this principle from Reeves in the summary judgment context). But DPS has not shown sufficient
evidence to fall under those exceptions, so Stokes’s prima facie case plus pretext is enough for him
to survive summary judgment.


                                                17
No. 19-1773, Stokes v. Detroit Public Schools


genuine issue of material fact over pretext. So even though Stokes has shown a triable issue for

his Title VII and ADEA claims, he has not for his ELCRA claims because he has shown no

evidence suggesting discriminatory animus.

                                           *       *       *

        Thus, for his Title VII and ADEA claims, Stokes has shown a genuine issue of material

fact as to whether Stokes’s poor interview performance was pretextual because DPS (through

TNTP) decided to offer Hampton the position even before the interview. And there is a genuine

issue of material fact as to pretext for DPS’s claim that Stokes wasn’t the best fit for the job because

he failed to recruit enough teachers. Because Stokes has shown a genuine issue of material fact as

to pretext for all DPS’s proffered reasons, see Smith v. Chrysler Corp., 155 F.3d 799, 806, 809

(6th Cir. 1998), we REVERSE the judgment of the district court as to the Title VII and ADEA

claims and REMAND for further proceedings. But we AFFIRM the district court’s decision as to

the ELCRA claims.




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