               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0756n.06

                                          No. 13-2391                                  FILED
                                                                                  Oct 01, 2014
                                                                             DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

ROSETTUS WEEKS,

       Plaintiff-Appellant,
v.
                                                     ON APPEAL FROM THE UNITED
STATE OF MICHIGAN, DEPT. OF                          STATES DISTRICT COURT FOR THE
COMMUNITY HEALTH,                                    EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellee.




BEFORE:        CLAY and STRANCH, Circuit Judges; BLACK, District Judge. 

       CLAY, Circuit Judge. Plaintiff Rosettus Weeks appeals from the district court’s order

granting summary judgment to Defendant, State of Michigan Department of Community Health,

on Plaintiff’s discrimination and retaliation claims. Plaintiff’s complaint, which alleges that

Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) et seq.

(“Title VII”), arises out of Defendant’s decision to appoint Carol Holden (“Holden”), a white

female, to the position of Director of the Center for Forensic Psychiatry (“CFP”) (hereinafter,

“the CFP Director position”) in February 2010. Plaintiff alleges that he was not selected for this

position on account of his race and national origin, and in retaliation for filing an EEOC

complaint and discrimination lawsuit against Defendant in 2008. For the reasons set forth below,



       
         The Honorable Timothy S. Black, United States District Judge for the Southern District
of Ohio, sitting by designation.
                                                                         Weeks v. State of Michigan
                                                                                       No. 13-2391
we REVERSE the district court’s order granting summary judgment to Defendant and

REMAND the case to the district court for further proceedings.

                                         BACKGROUND

 I.    PLAINTIFF’S BACKGROUND AND EMPLOYMENT HISTORY

       Plaintiff is a black male from Liberia. He has worked for the State of Michigan since

1984, and has been with the Michigan Department of Community Health since 1988. Plaintiff

has a background in management, accounting, and finance, including an MBA from Wayne State

University. He is also a licensed CPA.

       Plaintiff has held a variety of administrative and managerial roles with the Department of

Community Health. Two of these positions are particularly noteworthy: first, Plaintiff worked

as Director of the Huron Valley Center from 1999 to 2005 and, second, Plaintiff worked as

Director of Walter P. Reuther Psychiatric Hospital (“Walter Reuther Hospital”) from June 2006

through June 2008.

 II.   PREVIOUS DISCRIMINATION COMPLAINTS AND LAWSUIT

       This is Plaintiff’s second lawsuit against Defendant.         The facts and circumstances

surrounding Plaintiff’s previous litigation are highly relevant to his current lawsuit:

       In July 2005, while working in central administration for the Department of Community

Health, Plaintiff applied for the position of State Bureau Administrator, a Level 18 position. On

September 11, 2005, Cynthia Kelley (“Kelley”), a white female, was selected for the position

notwithstanding the fact that Kelley did not meet the minimum requirements for a Level 18

position. Plaintiff filed a Technical Complaint with the Civil Service Commission challenging

Kelley’s appointment. Kelley was removed from the position after it was determined that she

lacked the requisite credentials. Following Kelley’s removal from the position, Defendant re-



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                                                                       Weeks v. State of Michigan
                                                                                     No. 13-2391
established the position as a Level 17 position and again conducted a selection process to fill it.

Kelley was once again selected for the position.

       Shortly after Kelley was re-appointed, Plaintiff filed another Technical Complaint

challenging Kelley’s appointment. This dispute was ultimately settled pursuant to a settlement

agreement, reached in May 2006, which provided that Plaintiff would withdraw his Technical

Complaint and would be appointed as Director of Walter Reuther Hospital effective June 4,

2006. Plaintiff accepted this role, and worked in this capacity for almost two years.

       In May 2008, Defendant once again solicited internal applications for the position of

State Bureau Administrator, a Level 18 position.        Plaintiff applied, but was not selected.

Defendant instead gave the promotion to Kelley, who had by that point achieved the requisite

credentials that she had previously lacked for a Level 18 position.

       One month later, Plaintiff was reprimanded and laterally reassigned to the position of

Division Director of Reimbursement and Revenue Enhancement for the Michigan Department of

Community Health after he was accused of improperly handling a patient abuse incident at

Walter Reuther Hospital.

       In September 2008, Plaintiff filed a charge of discrimination with the EEOC challenging

his reprimand and removal from his position at Walter Reuther Hospital, as well as Kelley’s

selection for the position of State Bureau Administrator. On December 11, 2008, after receiving

notice of his right to sue, Plaintiff filed a lawsuit against Defendant in United States District

Court for the Eastern District of Michigan, alleging that Defendant unlawfully discriminated and

retaliated against him by reprimanding him, removing him from his position as Hospital

Director, and selecting Kelley for the position of State Bureau Administrator in May 2008.

Weeks v. State of Michigan, No. 2:08-CV-15124. The lawsuit survived summary judgment, and



                                                   3
                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
the case proceeded to a jury. Director of the Mental Health and Substance Abuse Administration

Michael Head (“Head”), as well as Kelley, and several other individuals testified at depositions

or during trial. The jury ultimately found in Defendant’s favor, and judgment was entered on

March 2, 2011.

III.   PLAINTIFF’S APPLICATION FOR THE CFP DIRECTOR POSITION

       The CFP Director position became vacant in January 2009––about one month after

Plaintiff filed his first employment discrimination lawsuit. Kelley and Head (Kelley’s direct

supervisor) were responsible for supervising and filling this vacant position.

       Head and Kelley first sought to fill the vacancy on an interim basis. Kelley selected

Holden as the interim Director, and Head sanctioned the appointment. When asked whether he

had any involvement in terms of placing Holden in the position of interim Director, Head

explained during his deposition: “[Kelley] checked it out with me. She wanted to go this route. . .

. I sanctioned it.” [R. 14-12, Head Dep. at 8, Page ID 543.] Holden remained interim Director

for several months until Defendant was ready to fill the position on a permanent basis.

       In December 2009, Defendant changed the official job requirements of the CFP Director

position by attaching a so-called Selective Position Requirement (“SPR”), which required “[t]wo

years of clinical experience as a Psychiatrist, Psychologist, or Physician.” [R. 13-7, Ex. 7, Job

Posting, Page ID 144–45.] Prior to December 2009, like other Level 17 and 18 positions, the

CFP Director position had officially required that any candidate need only possess a Bachelor’s

degree and two years of professional managerial experience or specialist experience, or

equivalent.

       As the district court recognized, “[t]he history of the SPR is important to this case.”

Weeks v. Michigan, 12-CV-11368, 2013 WL 4012796, at *2 (E.D. Mich. Aug. 6, 2013). But the



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                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
district court’s factual statement omits evidence, and ultimately portrays the evidence in the light

most favorable to Defendant, rather than construing the facts in the light most favorable to

Plaintiff, as we are required to do on Defendant’s motion for summary judgment. See Scott v.

Harris, 550 U.S. 372, 378 (2007).

       The district court found as a matter of undisputed fact that Head created the SPR and

directed Tina Smith to submit the SPR request for approval. Weeks, 2013 WL 4012796, at *2–3

(citing [R. 13-18, Ex. 18, Head Dep.]). The district court further found that, after the SPR

request was approved, “Head was responsible for changing the CFP Director position description

to include the clinical experience requirement eventually found in the SPR.” Id. at *2. The court

noted only in passing that “[t]he SPR was also approved by Kelley, as she is the direct supervisor

of all of [D]efendant’s hospital directors.” Id. (citing [R. 13-18, Head Dep. at 12; R. 13-5,

Kelley Dep. at 41.]).

       The district court’s recitation of facts is inaccurate. In fact, Head clearly testified during

his deposition that Kelley created the SPR, and Head merely rubber stamped it. When asked

what his specific role was in terms of creating the SPR, Head replied: “[Kelley] must have

[created the SPR] and I must have approved it. . . . I don’t remember having a lot of discussion

with her about it. . . . I’m guessing I signed off on it.” [R. 13-18, Head Dep., at 30–31, Page ID

364.] Head indicated that Kelley also created the Position Action Request officially requesting

the SPR, and also drafted the written rationale that accompanied the request. Although Head

later clarified that he “agreed with this direction and proposed this direction back in 2008,” he

ultimately admitted that he did not even know what an SPR was, did not remember discussing

the SPR with Kelley or anyone else, and did not know or remember anything about the SPR. [R.

13-18, Head Dep., at 32, Page ID 366.]



                                                 5
                                                                       Weeks v. State of Michigan
                                                                                     No. 13-2391
        After Head signed off on Kelley’s SPR request, it was submitted for approval by the Civil

Service Commission, an independent entity. SPRs are typically used to narrow educational

requirements, such as requiring a Bachelor’s degree in a specific major area rather than requiring

more advanced educational credentials, so the proposed SPR was “unusual.”              [R. 14-14,

Robinson Dep. at 15, Page ID 567.] Due to the unusual nature of Defendant’s request, Human

Resources analyst Jeanette Robinson sought approval from her supervisor, Susan Cooper.

Cooper, in turn, brought the SPR request to her supervisor, Matt Fedorchuk, for further review.

After conferring with Fedorchuk, Cooper approved the SPR for the CFP Director position on

December 14, 2009.

        On January 15, 2010, the permanent opening for the CFP Director position was posted

internally within the department. It was classified as a Level 17 State Administrator position, but

also contained the additional SPR criteria, requiring “[t]wo years of clinical experience as a

Psychiatrist, Psychologist, or Physician.” [R. 13-7, Ex. 7, Job Posting, Page ID 144–45.]

        The job description reads as follows:

        Position is responsible for the overall planning, direction and day-to-day
        operation of a state operated mental health hospital/center. Work is performed
        under executive direction and within general policies and procedures of the
        Department of Community Health. Responsibilities require employee to exercise
        extensive independent judgment in developing and implementing approaches to
        clinical and administrative program administration. The employee is required to
        plan and direct all aspects of the operation in conformance with general
        guidelines, clinical standards, policies and law, within the funding authorization
        provided.

[Id.]

        Plaintiff applied for the position on February 2, 2010. He was one of seven candidates

who applied. The applicant pool was apparently filtered down to two final candidates: Plaintiff

and Holden, but Plaintiff was rejected after it was determined that he did not meet the SPR

                                                6
                                                                      Weeks v. State of Michigan
                                                                                    No. 13-2391
criteria attached to the position. In fact, of the seven applicants, Holden was the only one who

met the SPR criteria.

        Holden has a Master’s Degree and Ph.D. in Clinical Psychology from the University of

Michigan. She worked in “progressive positions of responsibility for over twenty-three years at

the Forensic Center, beginning as a staff psychologist through Director of Evaluation Services.”

[R. 13-9, Holden C.V., Page ID 151.] Unlike Plaintiff, Holden did not have any prior experience

directing a hospital facility.

        On February 22, 2010, Holden was appointed to the CFP Director position.

IV.     PROCEDURAL HISTORY

        Plaintiff filed a Technical Complaint with the Civil Service Commission on February 18,

2010, alleging that the selection process for the CFP Director position––specifically, the

inclusion of a Selective Position Requirement (“SPR”) demanding two years of clinical

experience––was designed to exclude him from consideration for the position.             Plaintiff

requested that the SPR be revoked and that the appointment process be set aside. On March 12,

2010, the Civil Service Commission denied Plaintiff's grievance for lack of standing; because

Plaintiff did not possess the qualifications required to satisfy the approved SPR, he was not

deemed to be a “candidate.” [R. 14-19, Ex. 19, EEOC Position Letter at 2, Page ID 595.]

        Plaintiff appealed to the Employment Relations Board (“ERB”). In a decision dated July

1, 2010, the ERB ruled, in part, that the SPR was “improperly approved” in violation of Civil

Service Regulation 4.01, which forbids SPRs to require a more advanced degree than required by

the state position level, and that the SPR therefore must be set aside. [Id. at 3] The ERB further

found that Plaintiff was qualified for the position without the SPR, and was thereby a

“candidate” such that he had standing to contest the selection process. [Id.] The ERB remanded



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                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
the case to a Technical Review Officer (“TRO”) to address the merits of Plaintiff’s complaint,

and to determine if the entire selection process should be set aside.

       In a decision dated August 26, 2010, the TRO found that, although the SPR was

improperly approved, it did not cause a fatal flaw in the selection process such that Holden

should be removed from the position after performing “satisfactorily” for six months. [R. 13-12,

TRO Decision at 8, Page ID 207.]

       On July 26, 2010, Plaintiff filed a charge of discrimination against Defendant with the

EEOC. The EEOC declined to pursue the charge, and Plaintiff received notice of right to sue on

January 3, 2012. On March 26, 2012, Plaintiff filed a complaint against Defendant in the Eastern

District of Michigan, alleging violations of Title VII. On May 1, 2013, Defendant filed a motion

for summary judgment. On May 22, 2013, Plaintiff filed a response opposing Defendant’s

motion for summary judgment, and Defendant filed its reply on June 5, 2013. After conducting

a hearing on July 24, 2013, the district court granted Defendant’s motion for summary judgment

by order dated August 6, 2013. Weeks v. Michigan, 12-CV-11368, 2013 WL 4012796, at *9

(E.D. Mich. Aug. 6, 2013). Plaintiff filed a motion for reconsideration on August 20, 2013,

which the district court denied on September 19, 2013. Plaintiff timely appealed.

                                          DISCUSSION

                     STANDARD OF REVIEW AND RULE 56(a) FRAMEWORK

       Under Fed. R. Civ. P. 56(a), summary judgment is appropriate only “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.” A genuine issue of material fact exists when there are disputes over facts that

might affect the outcome of the lawsuit. White v. Baxter Healthcare Corp., 533 F.3d 381, 389

(6th Cir. 2008).



                                                 8
                                                                       Weeks v. State of Michigan
                                                                                     No. 13-2391
       We review de novo a district court’s order granting summary judgment. Laster v. City of

Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). “In reviewing the district court’s grant of

summary judgment, this Court must view all the facts and the inferences drawn therefrom in the

light most favorable to the nonmoving party,” which in this case is Plaintiff. Shazor v. Prof’l

Transit Mgmt., Ltd., 744 F.3d 948, 955 (6th Cir. 2014). “The ultimate question is whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Laster, 746 F.3d at 726 (quotation

marks and citations omitted.)

                                                ANALYSIS

I.     PLAINTIFF’S DISCRIMINATION CLAIMS

       Title VII provides that it shall be unlawful for an employer “to discharge any individual,

or otherwise to discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race . . .” 42 U.S.C. §

2000e-2(a)(1). A plaintiff may establish a claim of discrimination either by introducing direct

evidence of discrimination or by proving inferential and circumstantial evidence that would

support an inference of discrimination. Shazor, 744 F.3d at 955. Where, as here, the claim is

based on circumstantial evidence, we employ the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Tex. Dep’t of Community

Affairs v. Burdine, 450 U.S. 248 (1981) (clarifying McDonnell Douglas burden-shifting

framework).

       Under McDonnell Douglas, Plaintiff bears the initial burden of establishing a prima facie

case of discrimination. Laster, 746 F.3d at 727. If Plaintiff succeeds in making out the elements

of a prima facie case, the burden of production shifts to Defendant to “articulate some legitimate,



                                                9
                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
nondiscriminatory reason” for its actions. Id. If Defendant satisfies its burden of production, the

burden shifts back to Plaintiff to demonstrate that the proffered reason was not the true reason for

the adverse action. Id.

       1. Prima facie case

       For the reasons explained by the district court, a reasonable jury could find that the CFP

Director position is properly classified as a promotion. “In a failure to promote employment

discrimination case, the Sixth Circuit has modified the elements of the test to fit the specific

context.” White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005) (citing

Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000)). To establish a prima facie

case of discrimination based on failure to promote under Nguyen, which is the governing

precedent, Plaintiff must show, by a preponderance of the evidence, that: 1) he is a member of a

protected class; 2) he applied for and was qualified for a promotion; 3) he was considered for and

was denied the promotion; and 4) an individual of similar qualifications who was not a member

of the protected class received the job at the time Plaintiff’s request for the promotion was

denied. Nguyen, 229 F.3d at 562–63; see also White, 429 F.3d at 240. The “modified . . .

elements” set forth in Nguyen apply to Plaintiff’s claim. White, 429 F.3d at 240.

       There is no dispute that Plaintiff, a black male from Liberia, is a member of a protected

class. Nor is there any dispute that Plaintiff was qualified for the position. The dispute in this

case is limited to the fourth element: whether an individual of “similar qualifications” who was

not a member of the protected class received the job. This element is a proxy for causation.

       In assessing whether Plaintiff has satisfied the fourth element of the Nguyen test, we

“conduct an independent review of the relative qualifications” of Plaintiff and Holden “based on

the evidence presented.” White, 429 F.3d at 243. In analyzing this element, we make “some



                                                10
                                                                         Weeks v. State of Michigan
                                                                                       No. 13-2391
comparison of qualifications . . . but not the sort of close comparison that might include

consideration of the employer’s evaluation of subjective traits or other details about why the non-

protected person was in fact selected over the plaintiff.” Id. at 242 n.6.

       Having independently reviewed the relative qualifications of Plaintiff and Holden, we

find that there is, at a minimum, a genuine dispute as to whether Plaintiff and Holden are

similarly qualified, and disagree with the district court’s determination that Holden was the

objectively better-qualified candidate. Holden’s 23 years of clinical experience, while certainly

impressive, are not directly relevant to the CFP Director position––an administrative position

with no clinical responsibilities––and do not compel the conclusion that Holden was the

objectively superior candidate for the position.      To the contrary, Holden’s relative lack of

experience in hospital management and administration could lead a jury to conclude that Plaintiff

was the superior candidate. Even including her experience as interim Director, Holden had less

than one year of experience running a hospital. In contrast, Plaintiff already had eight years of

prior experience as a Hospital Director, during which time he performed the exact same job

duties and responsibilities associated with the CFP Director position. Moreover, Plaintiff had a

strong educational background in management, finance, and accounting. While their relative

qualifications were unquestionably different, we cannot say with certainty that one candidate was

objectively superior for the CFP Director position. Because a reasonable jury could find that

Plaintiff was at least as well-qualified as Holden, Plaintiff has satisfied his burden of proof on the

fourth element.

       Plaintiff has presented evidence to support the presence of all four elements of the

Nguyen test. Accordingly, Plaintiff has carried his burden of establishing a prima facie case.




                                                 11
                                                                          Weeks v. State of Michigan
                                                                                        No. 13-2391
          2. Legitimate, nondiscriminatory reason

          Defendant sets forth two arguments that are best understood as providing “legitimate

business reasons” for the decision to appoint Holden instead of Plaintiff. First, Defendant

contends that “Holden was the strongest applicant and the natural choice to lead the Forensic

Center.” Def.’s Br. at 25. For the reasons discussed above, we cannot conclude that Holden

was, indisputably, the objectively stronger applicant. This is a factual question for a jury to

decide.

          Normally, we would give some measure of deference to an employer’s business

judgment in selecting one candidate over another, see Hedrick v. W. Reserve Care Sys., 355 F.3d

444, 462 (6th Cir. 2004) (emphasizing that the role of federal courts is “to prevent unlawful

hiring practices, not to act as a super personnel department that second guesses employers’

business judgments”) (quotation marks omitted), but in this case, Defendant never exercised any

“business judgment;” Holden was selected by default––she was the only candidate who met the

invalid SPR requirement. The applicant pool was narrowed from seven candidates to two:

Plaintiff and Holden, and Plaintiff was subsequently eliminated for his failure to meet the SPR

criteria. The TRO, EEOC, and district court provided post hoc rationalizations for Holden’s

appointment, but Defendant never actually compared the two candidates. Under these facts,

there is nothing to implicate any concern over “second guessing” an employer’s business

judgment.

          Defendant next argues that, even if Plaintiff had not been rejected on the basis that he did

not meet the SPR criteria, Plaintiff’s application would have been rejected because Defendant

had in place from 2008 through 2011 a “department-wide policy” requiring Hospital Directors to

have clinical experience as a psychiatrist, psychologist, or physician. Defendant claims that



                                                  12
                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
Head created this policy in 2008, and that it was subsequently abandoned in 2011 when Head

retired. But Defendant has not produced any reliable evidence that such a policy ever existed.

The district court cited Head’s deposition testimony as support, but Head never expressly stated

that he implemented a formal policy requiring clinical experience. Rather, Head explained that

he felt, generally, based on his knowledge and experience, that “clinical direction of a hospital is

better than non-clinical direction. . . . All other things being equal, you want to pick a clinical

person to be the Director of a hospital. It’s not just kind of an arbitrary job.” [R.14-12, Head

Dep. at 39, Page ID 546.] The key words here are all other things being equal. Without

knowing how much weight Defendant would have put on Holden’s clinical experience, and

without any evidence that Defendant actually had a formal policy of requiring clinical

experience, we cannot say with certainty that Plaintiff would not have been selected for the job.

       3. Pretext

       Even if Defendant had produced evidence of a formal policy requiring clinical

experience, Plaintiff has raised a genuine dispute of fact as to whether the stated reason is

pretextual. A plaintiff may establish that a proffered reason is a mere pretext by showing that 1)

the stated reason had no basis in fact; 2) the stated reason was not the actual reason; or 3) the

stated reason was insufficient to explain Defendant’s action. Scott v. Goodyear Tire & Rubber

Co., 160 F.3d 1121, 1126 (6th Cir. 1998); Wheeler v. McKinley Enterprises, 937 F.2d 1158,

1162 (6th Cir. 1991). Put simply, the pretext inquiry considers whether “the legitimate reasons

offered by the defendant were not its true reasons, but were a pretext for discrimination.”

Burdine, 450 U.S. at 253.

       A jury could find Defendant’s proffered reason was pretextual because, in addition to

having no written evidence of this policy, “the only time this alleged policy was used was when



                                                13
                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
the Plaintiff was rejected for the position in 2010.” Pl.’s Br. at 22. The former 30-year

incumbent of the position, Bill Meyer, would not have qualified under the newly-established

SPR because he did not have a clinical degree or any experience as a clinician. Moreover,

Defendant does not typically require its Directors to have a clinical background. Three out of the

five Directors do not have clinical backgrounds, including one recent hire. Richard Young, a

white male who was hired for the position of Director at Walter Reuther Hospital in April 2013,

has only a Bachelor’s degree in political science and a Master’s degree in health administration.

The district court attempted to justify these inconsistencies on the basis of their timing and other

circumstances. These justifications are arguments to be made before a jury, not undisputed facts

for the purposes of summary judgment. A reasonable jury could believe that the alleged policy

requiring clinical experience was a tactical excuse to intentionally exclude Plaintiff from

qualifying for the promotion. As Plaintiff notes, Defendant had good reason to believe that

Plaintiff would apply for the promotion, and irrefutably knew that Plaintiff lacked a clinical

background.

           Plaintiff has presented sufficient evidence to raise genuine disputes of material fact.

Accordingly, summary judgment on Plaintiff’s discrimination claim was improper.

 II.   PLAINTIFF’S RETALIATION CLAIM

       Title VII also prohibits discriminating against an employee because that employee has

engaged in conduct protected by Title VII. See 42 U.S.C. § 2000e-3(a). As with a Title VII

discrimination claim, a Title VII retaliation claim can be established “either by introducing direct

evidence of retaliation or by proffering circumstantial evidence that would support an inference

of retaliation.” Imwalle, 515 F.3d at 543. Here, Plaintiff has done the latter. Thus, we analyze

Plaintiff’s retaliation claim under the familiar burden-shifting framework of McDonnell Douglas.



                                                14
                                                                         Weeks v. State of Michigan
                                                                                       No. 13-2391
411 U.S. 792. Id. at 544.

       To establish a prima facie case of retaliation under Title VII, Plaintiff must demonstrate

that (1) he engaged in activity protected by Title VII; (2) Defendants knew that Plaintiff engaged

in the protected activity; (3) Defendant took an action that was “materially adverse” to Plaintiff; 1

and (4) a causal connection existed between the protected activity and the materially adverse

action. Laster, 746 F.3d at 730. Title VII retaliation claims “must be proved according to

traditional principles of but-for causation,” which “requires proof that the unlawful retaliation

would not have occurred in the absence of the alleged wrongful action or actions of the

employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).

       There is no dispute that Plaintiff engaged in protected activity by filing an EEOC

complaint in 2009, and by bringing a lawsuit against Defendant, which was pending from

December 2008 until March 2011. Nor is there any dispute that Defendant was aware of

Plaintiff’s protected activity.   Furthermore, the district court correctly found that rejecting

Plaintiff’s application for the CFP Director position is a material adverse action for purposes of

his retaliation claim regardless of whether the Court classifies the position as a lateral transfer or

a promotion, since “the denial of a transfer opportunity for which he was qualified may dissuade

a reasonable worker from making ... a charge of discrimination, and rises above the level of petty

slights and minor annoyances.” Weeks v. Michigan, 2013 WL 4012796, at *7 (quotation marks

and citations omitted). The only disputed element of Plaintiff’s retaliation claim is causation.

       The district court found that Plaintiff failed to make a prima facie showing of causation.

We disagree. The fact that Kelley––the very individual whose preferential treatment Defendant



       1
           Alternatively, Plaintiff may show that he “was subjected to severe or pervasive
retaliatory [or other discrimination-based] harassment by a supervisor.” Morris v. Oldham
County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).
                                                 15
                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
challenged in an EEOC Complaint and federal lawsuit––was instrumental in selecting Holden

over Plaintiff for the position immediately raises some level of suspicion.         The deposition

testimony establishes that Kelley was not only primarily responsible for selecting Holden for the

interim position, but also for creating and formally submitting the SPR, and for ultimately hiring

Holden for the permanent position. This entire process took place over the course of a year from

January 2009––when Holden was appointed on an interim basis, giving her a leg-up for being

permanently selected to fill the role––to December 2009 when the SPR was created and the

position was formally posted. Kelley had been removed from her position only a year earlier as

a result of Plaintiff’s complaint of discrimination, and Plaintiff’s lawsuit was still ongoing at the

time that Kelley passed over Plaintiff for the position. In the Sixth Circuit, “temporal proximity

alone can be enough” to establish causation. Montell v. Diversified Clinical Services, 757 F.3d

497, 505 (6th Cir. 2014).

       The district court gave hefty consideration to the effect of the Civil Service

Commission’s independent approval of the SPR on Plaintiff’s case. We disagree with the district

court’s determination that the Civil Service Commission’s independent approval of the SPR

necessarily breaks the chain of causation. It is true that Jeanette Robinson, Susan Cooper, and

Matt Fedorchuk, three individuals in HR who are not alleged to have any discriminatory or

retaliatory motive, approved Kelley’s SPR request. See Weeks, 2013 WL 4012796, at *7.

However, subsequent ratification of a seemingly-objective SPR cannot insulate Defendant from

liability if the SPR was actually created with discriminatory intent. If Robinson and Cooper had

independently created the SPR, then their lack of discriminatory or retaliatory intent surely

would be dispositive. But where Robinson and Cooper merely failed to realize that the SPR was

impermissible, their error does not necessarily break the chain of causation.



                                                 16
                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
        Finally, inasmuch as Defendant argues that Plaintiff cannot establish causation because

Holden was the objectively superior candidate due to her qualifications or Plaintiff’s blemished

work history, we find that this is a question of fact that is not well suited for summary

disposition. It is impossible to say that Holden was unquestionably the best candidate for the

position; her relative lack of relevant directorial experience could raise a question in a reasonable

juror’s mind. Excluding Holden’s clinical background––for whatever it may be worth––Plaintiff

appears to have been the better-qualified candidate. While a jury could find that Holden’s

clinical background and other qualifications make up for her relative lack of experience

compared to Plaintiff, this conclusion is not compelled by the evidence and is improper on

summary judgment. Holden was an impressive candidate, to be sure, and it is not difficult to

provide a post-hoc justification for her appointment; but neither is it difficult to argue that an

unbiased employer may have found Plaintiff better suited for the directorship. A reasonable jury

could believe that but for Plaintiff’s protected activity, Plaintiff would have been selected for the

CFP position. Plaintiff has presented sufficient facts to create a genuine dispute of material fact

on the element of causation, and has carried his burden of establishing a prima facie case of

retaliation.

        As explained above, there is a genuine factual dispute as to whether or not Defendant’s

proffered reasons are pretextual. Accordingly, summary judgment was improper on Plaintiff’s

retaliation claim.

                                         CONCLUSION

        The district court erred in granting summary judgment on Plaintiff’s Title VII

discrimination and retaliation claims. Viewed in the light most favorable to Plaintiff, the facts

are sufficient to create a genuine dispute of material fact as to whether Defendant impermissibly



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                                                                        Weeks v. State of Michigan
                                                                                      No. 13-2391
failed to promote Plaintiff because of his race or national origin, or in retaliation for Plaintiff’s

2008 employment discrimination lawsuit. Moreover, there is a genuine factual dispute as to

whether Defendant’s “legitimate business reason” for selecting Holden over Plaintiff was

pretextual. Therefore, we REVERSE the district court’s order granting summary judgment to

Defendant on Plaintiff’s discrimination and retaliation claims and REMAND the case to the

district court for further proceedings.




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