                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0459n.06

                                         Case No. 16-6613

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Aug 07, 2017
TREY MANSFIELD,                                        )                     DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellant,                            )
                                                       )         ON APPEAL FROM THE
v.                                                     )         UNITED STATES DISTRICT
                                                       )         COURT FOR THE MIDDLE
CITY OF MURFREESBORO,                                  )         DISTRICT OF TENNESSEE
                                                       )
       Defendant-Appellee.                             )
                                                                           OPINION

Before: BOGGS, MOORE, and McKEAGUE, Circuit Judges.

       BOGGS, Circuit Judge. Trey Mansfield, a police officer and K-9 handler for the

Murfreesboro Police Department, sued the City of Murfreesboro for retaliation under the Fair

Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964. His claim: when a

new Sergeant position was announced for the K-9 unit and another officer was selected for the

post, Mansfield was denied the promotion as retaliation for his previous involvement in proposed

litigation to collect unpaid wages for mealtime breaks, for his criticism of changes to shift

scheduling, and for his support of another officer who had alleged sex discrimination by Major

David Hudgens. More generally, Mansfield alleges that Major Hudgens was a “monster” who

would, in the presence of other officers, say things like, “I think I’ll fuck with Trey Mansfield

today,” or—in response to Mansfield’s assertion that the new schedule would make childcare

difficult—“I guess your precious little princess will have to fucking deal with it.”
Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


       The district court granted summary judgment for the City, holding that Mansfield had

neither direct evidence of retaliation nor circumstantial evidence that would support an inference

of retaliation under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). The

officer chosen for the new Sergeant position was the highest-scoring applicant according to a

numeric ranking system employed as part of the City’s evaluation guidelines, and the officer

chosen was already a Sergeant in another unit. Mansfield, on the other hand, was the fourth-

ranked applicant out of eight. And Major Hudgens had recused himself from the promotion

board responsible for selecting the new Sergeant. Thus, while Mansfield may well have deep-

seated and genuine disputes with Major Hudgens, Mansfield cannot show a genuine dispute of

material fact to overcome the City’s motion for summary judgment.

       We therefore affirm the judgment of the district court.

                                                I

       As a threshold matter, we consider whether we have jurisdiction. Mansfield’s cause of

action was consolidated with that of another officer, Gregg Brown, and pretrial litigation in

Brown’s case remains ongoing, raising the question whether the summary-judgment order in

Mansfield’s case is a “final” decision from which Mansfield may now appeal.                   See

28 U.S.C. § 1291. We have held that when a court consolidates two cases on its own, unlike

when plaintiffs amend their pleadings to join actions that were initially brought separately, the

consolidated cases “remain separate actions,” thus allowing appeal from a final judgment in one

action even if litigation in the other remains ongoing. Beil v. Lakewood Eng’g & Mfg. Co.,

15 F.3d 546, 551 (6th Cir. 1994) (“[A] case which is disposed on summary judgment is

appealable pursuant to 28 U.S.C. § 1291 despite the fact that the case with which it is

consolidated has not been disposed.”); see also Klyce v. Ramirez, 852 F.2d 568, 1988 WL 74155,



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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


at *3 (6th Cir. 1988) (unpublished table decision) (dismissing appeal where plaintiff’s amended

complaint consolidated claims previously brought in five separate complaints and where order

appealed from had only dismissed claims against some of the defendants named in the amended

complaint).   Here, the district court consolidated Mansfield’s case with Brown’s over the

opposition of both plaintiffs. Thus, under Beil, the two cases remain separate actions, and our

court has appellate jurisdiction to review the summary-judgment order in Mansfield’s case.

                                                II

       Mansfield has worked for the City since 1999 and has been a K-9 officer since 2008. In

2011, Mansfield signed a petition to opt into a proposed collective-action lawsuit against the City

that would have alleged violations of the FLSA because the City was allegedly improperly

deducting time for mealtime breaks from officers’ paychecks. In 2012, the City agreed to

change its pay policies, avoiding litigation. Major Hudgens was aware of the policy changes,

and the City agrees with Mansfield that Mansfield’s participation in the proposed action was

protected activity under FLSA.

       Also in 2011, Mansfield met with Major Hudgens to discuss the proposed elimination of

the “Day-Flex Shift” (10:45 a.m. to 7:00 p.m.), which Mansfield had worked, and reassigning

him to the evening shift (1:45 p.m. to 10:00 p.m.). Major Hudgens and others had decided to

reduce the number of shifts from five to three. “At some point during this meeting,” the City

concedes, “Major Hudgens lost his temper and began directing profanity and other

unprofessional statements at Officer Mansfield. Major Hudgens became so angry that Captain

Watkins had to intervene and end the meeting.” Appellee’s Br. 6. Mansfield alleges, and the

City does not seriously dispute, that from this point forward, Major Hudgens regularly behaved

unprofessionally towards Mansfield.



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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


         In January 2012, Mansfield participated in an internal investigation of an allegation that

Major Hudgens had discriminated against another officer based on her sex, for example by

stating that female officers should not join the City’s SWAT team. The investigators found that

Major Hudgens had made inappropriate statements but had not engaged in unlawful harassment

or discrimination. Major Hudgens was admonished not to retaliate against individuals involved

in the investigation. The investigation ended in March 2012.

         In August 2012, Mansfield filed a formal retaliation complaint with the City’s human-

resources department, alleging that Major Hudgens was treating Mansfield in a retaliatory

manner on account of Mansfield’s participation in the proposed FLSA litigation and the sex-

discrimination investigation.          The City again determined that Major Hudgens had made

inappropriate comments but had not engaged in unlawful retaliation. Mansfield’s complaint

about Major Hudgens included the elimination of the day-flex shift, but the City’s investigation

noted both that the schedule change took effect on July 25, 2011, and that Mansfield’s meeting

with Major Hudgens about the schedule change was on July 27, 2011—before the City learned

of the proposed FLSA action (in August 2011) and before Mansfield’s involvement in the sex-

discrimination investigation (in early 2012).

         In August 2013, the City created a new Sergeant position in the K-9 unit at Major

Hudgens’s request. Police Chief Glenn Chrisman issued a memorandum announcing that the

City would be accepting applications for the position, that the successful candidate would be

required to complete K-9 handling training, and that the selection process would be governed by

a policy titled “MPD General Order No. 224—Promotions.”1 Whereas Mansfield seizes upon


         1
          There is some disagreement about a provision in the announcement that stated that the selected applicant
“will supervise the K-9 unit in addition to being a patrol, tracking, or canine handler.” The district court construed
this to mean that the applicant would not necessarily need to be a canine handler. The parties appear to agree,
however, that “patrol,” “tracking,” and “canine” are each distinct types of K-9 handlers. Appellant’s Br. 37;

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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


the announcement as evidence that only an officer who was not already a Sergeant should have

been given the new position (otherwise, it would not be a “promotion”), the City argues, and we

agree, that announcing a “promotion” does not prevent selecting an applicant who is transferring

laterally, and that General Order No. 224 governs both promotions and lateral transfers anyhow.

        Mansfield was one of eight applicants for the position. Five of the applicants, including

Mansfield, were K-9 officers. The applicants included Sergeant Mark Wood, Officer Ryan

Holobaugh (who had also lodged internal complaints against Major Hudgens relating to the

unpaid mealtime breaks), Officer Angela Alexander, Officer Gregg Brown, and three others

apart from Mansfield. Major Hudgens was not on the promotion board, although Major Hudgens

(allegedly on account of his extensive knowledge of K-9 matters) submitted six proposed

interview questions to Chief Chrisman for approval, and five of those questions were forwarded

to the interviewer board to be asked of the applicants.

        In the interview round of the selection process, in October 2013, a seven-member board

interviewed the eight applicants. Two of the seven members ranked Sergeant Wood highest; two

ranked Officer Alexander highest; two ranked Officer Holobaugh highest; one ranked Mansfield

and Officer Brown as tied for first. The applicants then had point scores calculated: the top four

candidates were Sergeant Wood (65.71 out of 100), Alexander (62.17), Holobaugh (62.14), and

Mansfield (61.46). Eight days after the initial interview, Chief Chrisman and two other chiefs

interviewed all eight candidates as well. Sergeant Wood and Officer Holobaugh were selected as

finalists. Sergeant Wood was then chosen for the position.

        Mansfield alleges that the City’s interview process was a “sham”: Major Hudgens and

Captain Alan Smith “solicited” Sergeant Wood’s application and promised him that if he got the

Appellee’s Br. 46 (“a patrol, tracking, or [narcotic/explosive detection] canine handler”). The district court’s
misunderstanding of the phrase is immaterial, however, because the announcement required the successful applicant
to undergo training only after selection—not already to possess the required dog-handling skills.

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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


job, he would get a new car and his choice of dog. Appellant’s Br. 41, 42 n.9. The City

contends that Sergeant Wood was chosen because of his leadership experience and other skills,

and that even though Sergeant Wood did not have K-9 experience (and Mansfield was the senior

K-9 handler), Sergeant Wood was the more qualified candidate for the position.

                                               III

       For the reasons that follow, we affirm the judgment of the district court.

                                                A

       We review the district court’s grant of summary judgment de novo.            See Dodd v.

Donahoe, 715 F.3d 151, 155 (6th Cir. 2013). Summary judgment is appropriate when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We

draw all reasonable inferences in favor of Mansfield. See King v. Harwood, 852 F.3d 568, 578

(6th Cir. 2017). If, on “the record taken as a whole,” no rational trier of fact could find for

Mansfield, then there is no genuine issue for trial, and the City is entitled to summary judgment.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

                                                B

       Mansfield’s Title VII and FLSA retaliation claims are governed by the same framework,

within which Mansfield may prevail upon a showing of either direct evidence of retaliation or

circumstantial evidence of retaliation. See Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th

Cir. 2014) (Title VII retaliation); Adair v. Charter Cty. of Wayne, 452 F.3d 482, 489 (6th Cir.

2006) (FLSA retaliation); Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997) (“[A]

plaintiff may establish discrimination either by introducing direct evidence of discrimination or




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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


by proving inferential and circumstantial evidence which would support an inference of

discrimination.”).

                                                       C

                      Mansfield Does Not Have Direct Evidence of Retaliation

        “[D]irect evidence is that evidence which, if believed, requires the conclusion that

unlawful [behavior] was at least a motivating factor in the employer’s actions.” DiCarlo v.

Potter, 358 F.3d 408, 415 (6th Cir. 2004); see Johnson v. University of Cincinnati, 215 F.3d 561,

577 n.7 (6th Cir. 2000) (finding direct evidence of discrimination where a university president

allegedly said, “[w]e already have two black vice presidents. I can’t bring in a black provost”);

Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (finding no direct evidence of

discrimination where a manager expressed “concern about the potentially detrimental effect on

business of having an African–American comanager”). For Mansfield to prevail under a theory

of direct evidence here, then, Mansfield would have to show both “blatant remarks” revealing the

City’s retaliatory intent, Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013),

and that the retaliatory intent was a motivating factor in the City’s decision not to promote

Mansfield to Sergeant.2

        Mansfield points to Chief Chrisman’s statement that Mansfield had “been openly, vocally

critical of the supervision, management, and administration of the K-9 unit and the police

department” as direct evidence that Mansfield was denied the promotion because of his

involvement in the FLSA matter and the sex-discrimination investigation. The district court

rightly held, however, that Chief Chrisman’s statement, even if believed to be the reason for

denying Mansfield the promotion, does not directly prove that Mansfield’s protected activities

        2
        “When proving a claim through the use of direct evidence, a plaintiff does not have to proceed under the
McDonnell Douglas burden-shifting framework that applies to circumstantial evidence cases.” DiCarlo, 358 F.3d at
415.

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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


with regard to the FLSA matter and the internal investigation were the reason for denying

Mansfield the promotion—that would require an inferential step, and so Mansfield cannot

prevail on a theory of direct evidence.

                                                 D

               Mansfield Does Not Have Circumstantial Evidence of Retaliation

       In the absence of direct evidence, Mansfield may prove his claims under the burden-

shifting framework of McDonnell Douglas, 411 U.S. at 802–04. “Under McDonnell Douglas,

Plaintiff bears the initial burden to establish a prima facie case of retaliation.” Laster, 746 F.3d

at 730. “If [Plaintiff] succeeds in making out the elements of a prima facie case of retaliation,

the burden of production shifts [to the employer] to articulate a legitimate, non-retaliatory reason

for the termination[]. If the [employer] satisfies its burden of production, the burden shifts back

to [Plaintiff] to show that the reason was a pretext for retaliation. Although the burden of

production shifts between the parties, the [Plaintiff] bear[s] the burden of persuasion through the

process.’” Evans v. Prof’l Transp., Inc., 614 F. App’x 297, 300 (6th Cir. 2015) (emphasis

added) (citation omitted).     Thus, stage one of the McDonnell Douglas analysis requires

Mansfield to make out a prima facie case of retaliation; if, at stage two, the City can assert

legitimate reasons for choosing Sergeant Wood over Mansfield, then, at stage three, Mansfield

would have to show those reasons to be pretextual to prevail.

       “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) his exercise of such protected activity

was known by the defendant; (3) thereafter, the defendant took an action that was materially

adverse to the plaintiff; and (4) a causal connection existed between the protected activity and

the materially adverse action.” Laster, 746 F.3d at 730 (citations omitted). “To establish a prima



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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


facie case of retaliation” under FLSA, similarly, “an employee must prove that (1) he or she

engaged in a protected activity under the FLSA; (2) his or her exercise of this right was known

by the employer; (3) thereafter, the employer took an employment action adverse to her; and

(4) there was a causal connection between the protected activity and the adverse employment

action.” Adair, 452 F.3d at 489.

       Only the fourth element of the prima facie retaliation claims is disputed by the parties:

causation. “In order to establish a causal connection between the protected conduct and the

adverse action, a plaintiff must produce enough evidence of a retaliatory motive such that a

reasonable juror could conclude that the adverse action would not have occurred but for his

engagement in protected activity.” Russell v. Kloeckner Metals Corp., No. 3-13-0316, 2014 WL

1515527, at *3 (M.D. Tenn. Apr. 18, 2014) (citing Dye v. Office of Racing Comm’n, 702 F.3d

286, 205 (6th Cir. 2012)); see Univ. of Tex. Sw. Med. Center v. Nassar, 133 S. Ct. 2517, 2532–33

(2013). But even if Mansfield can demonstrate that there is a genuine issue of material fact as to

causation, he cannot prevail unless he can also demonstrate that there is a genuine issue of

material fact as to whether the City’s reasons for choosing Sergeant Wood were pretextual.

                                           Causation

       As to causation, the district court noted that the K-9 Sergeant selection process did not

begin until over a year after Mansfield had brought his formal complaint against Major Hudgens

for Major Hudgens’s unprofessional behavior, making it unlikely that Mansfield could show

“temporal proximity” between Mansfield’s protected conduct and the denial of Mansfield’s

application for the Sergeant position. See Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,

550 (6th Cir. 2008). Mansfield has, however, cited a laundry list of “facts” (many of which are




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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


more conclusory than factual) that, Mansfield argues, show that his being denied the promotion

was caused by retaliation. This list, as recited in Mansfield’s brief, includes, for example:

         -Chief Chrisman’s admission, under oath, that the City did not promote Officer
         Mansfield because he was outspoken against the administration.

         -The City’s advertisement of the K9 Sergeant position as a promotion, and not a
         lateral transfer.

         -Major Hudgens’s initial justification for the new position, to have a
         knowledgeable person to oversee the unit, and the highly technical nature of any
         K9 officer position.

         -Officer Mansfield’s involvement and leadership within the K9 unit prior to
         creation of the K9 Sergeant position, and the description of him by his former
         supervisor, Captain Watkins, as the “acting sergeant” of the unit.

         [. . .]

         -Major Hudgens’s stark change in attitude towards the K9 unit and Officer
         Mansfield and his treatment of Officer Mansfield with the utmost disrespect
         within days of learning of the proposed meal break matter.

         -Major Hudgens’s memorandum complaining about salary compression issues
         caused by the new meal break policy, highlighting the fact that lieutenants now
         make more money than higher-ranked captains.

         -Chief Chrisman’s opposition to the policy change, statement that he would not
         pay an officer to eat, and repeated reminders to Sergeant Campbell about the
         policy’s financial impact on the City, causing Sergeant Campbell to lodge a
         complaint with the City Manager.

         [. . .]

         -Crude statements made by Major Hudgens to Officer Mansfield, such as “the K-
         9 field is dead in the water”; “the K-9 field won’t move forward until I’m fucking
         ready for it to and that’s going to be a fucking long time;” and that he wanted to
         remove the letter “k” and the number “9” from his vocabulary.

Appellant’s Br. 30–33.3

         3
           Mansfield has offered this list of facts in support of the proposition that “[a] reasonable jury could
determine from this proof that Officer Mansfield was denied the K9 Sergeant position because of his protected
activity”—i.e., in support of his causation argument. Appellant’s Br. 33 (emphasis added). Some of the omitted
items in this list are more clearly relevant to Mansfield’s pretext argument, so we will address them in the context of
that argument, infra.

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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


        Given that “the burden of establishing a prima facie case in a retaliation action is not

onerous, but one easily met,” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000), we

will assume without deciding that Mansfield has met this burden, and we will proceed to the

second and third stages of the McDonnell Douglas framework.

                                                   Pretext

        The district court held that at the second stage of McDonnell Douglas, the City had

articulated a legitimate reason to give Sergeant Wood the position, and that at the third stage,

Mansfield could not meet his burden of demonstrating that the City’s reasons for choosing Wood

(inter alia, his leadership experience) were pretextual. Mansfield v. City of Murfreesboro, Tenn.,

No. 3:14-cv-01396, 2016 WL 5724208, at *4 (M.D. Tenn. Sept. 30, 2016). We agree.

        Mansfield believes that Sergeant Wood’s status as a Sergeant before applying for the K-9

position actually helps Mansfield make his case (indeed, Mansfield argues that the “most glaring

proof” of pretext is that the K-9 position “was presented as a promotion, not a lateral transfer,”

Appellant’s Br. 40). Mansfield also points to the fact that when the City created other Sergeant

positions, it promoted officers from within the unit. Appellant’s Br. 13. The City presented

competent evidence that Sergeant Wood was selected for his leadership experience, however,

and Mansfield has not presented any authority to support the proposition that offering a new

position (even one styled as a “promotion”) to a candidate seeking a lateral transfer is evidence

of pretext for denying the position to other candidates.

        Mansfield further argues that Major Hudgens “hand-picked” Sergeant Wood for the job,

Appellant’s Br. 11, but that would not—even if true—cut against the City’s legitimate reasons

for choosing Sergeant Wood.4


        4
           The City contends that any of the testimony that Mansfield alleges would prove the existence of this
promise is inadmissible hearsay (the testimony is from another officer recounting what Sergeant Wood heard Major

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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


        Mansfield further notes that another officer heard an assistant chief say to another chief,

“All we have to do is come up with a good reason why we promoted Wood. Don’t worry about

it.” But the City notes that this statement (or one like it) was made only after Mansfield had filed

a claim with the EEOC, and that it in that context, it is simply a true statement made in

preparation for an EEOC mediation—it would require either speculation or more evidence from

Mansfield to establish that the assistant chief was referring to fabricating a reason as opposed to

articulating a reason why Sergeant Wood was given the job.

        Finally, Mansfield cites ample evidence of Major Hudgens’s boorish behavior and

unprofessional remarks. Appellant’s Br. 30–33. And the City does not deny that Major Hudgens

exerted major influence over the police department’s day-to-day operation. But Mansfield has

provided insufficient evidence to back up his assertion that “Major Hudgens ha[d] enough power

to single-handedly decide who will be promoted,” Appellant’s Br. 35, let alone that Major

Hudgens acted on such power, for a reasonable jury to conclude from this evidence that Sergeant

Wood’s selection for the position was mere pretext for denying the position to Mansfield.

        The district court thus properly granted summary judgment for the City.

                                                    IV

        As we have stated before, “employers are generally ‘free to choose among qualified

candidates’” in making their employment decisions. Bender v. Hecht’s Dept. Stores, 455 F.3d

612, 626 (6th Cir. 2006) (quoting Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)). “The law

does not require employers to make perfect decisions, nor forbid them from making decisions

Hudgens tell him), and that Major Hudgens, Sergeant Wood, and Captain Smith all deny such a promise was made
anyhow. “Hearsay evidence may not be considered on summary judgment.” Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999). Our court has interpreted Fed. R. Evid.
801(d)(2)(D) broadly enough, however, to include an employee’s statements about his employer’s employment
decisions to be statements “within the scope of his employment” that are admissible as nonhearsay against the
employer. See Carter v. Univ. of Toledo, 349 F.3d 269, 275–76 (6th Cir. 2003). Accordingly, we will assume
without deciding that Mansfield’s evidence that Major Hudgens wanted Sergeant Wood to apply for the position
would be admissible and is thus properly considered on summary judgment.

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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


that others may disagree with.” Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996). Rather, a

rejected applicant “must show that a reasonable jury could conclude that the actual reasons

offered by the defendant were a mere pretext . . . , not that other reasonable decision-makers

might have retained the [rejected applicant].” Rowan v. Lockheed Martin Energy Sys., 360 F.3d

544, 550 (6th Cir. 2004) (affirming district court’s grant of summary judgment to employer in

age-discrimination case). Here, Mansfield has failed to present a genuine issue of material fact

as to pretext.

        Were we to hold otherwise, we would implicitly be endorsing a simple method for any

employee to win at least a day in federal court if not a windfall: engage in protected labor or

other activity (vocally enough that everyone in the organization knows about it), apply for (and

fail to secure) a promotion, and sue, claiming retaliation. In the absence of direct evidence of

retaliation, the McDonnell Douglas framework provides a sufficiently wide opening for a

potential litigant to bring a retaliation claim based on circumstantial evidence of retaliation—but

to reverse the district court here and hold that Mansfield has demonstrated a fact question as to

pretext here would widen that opening into a gulf, in a way that the law does not require and that

our precedents caution against.

        The district court’s summary-judgment order is AFFIRMED.




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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


       KAREN NELSON MOORE, Circuit Judge, dissenting. When, shortly a year after he

filed a formal complaint against the Murfreesboro Police Department, senior K-9 Officer Trey

Mansfield was passed over for a promotion to Sergeant of the K-9 unit in favor of an officer with

no previous K-9 unit experience by a department Major who was known to say things like, “I

think I’ll fuck with Trey Mansfield today,” what was Mansfield to think? What is a fact-finder

to do when faced with evidence that, shortly after Mansfield filed a retaliation claim with the

EEOC, an assistant police chief was heard saying, “[a]ll we have to do is come up with a good

reason of why we promoted Wood [and not Mansfield]”? The majority seemingly answers both

questions with the same response offered by Assistant Chief Roy Fields: “Don’t worry about it.”

R. 38-5 (Campbell Dep. at 37) (Page ID #999). Because I disagree with the majority and find

unpersuasive its conclusion that “to reverse the district court here and hold that Mansfield has

demonstrated a fact question as to pretext here would” impermissibly widen the McDonnell

Douglas framework “in a way that the law does not require and that our precedents caution

against,” Maj. Op. at 13, I respectfully dissent.

                                                    I.

       It is a “fundamental principle that at the summary judgment stage, reasonable inferences

should be drawn in favor of the nonmoving party.” Tolan v. Cotton, 134 S. Ct. 1861, 1868

(2014). “Summary judgment obviates the need for a trial when there is no genuine dispute of

material fact and the moving party is entitled to judgment as a matter of law.” Brown v.

Chapman, 814 F.3d 447, 464 (6th Cir. 2016) (citing Fed. R. Civ. P. 56(a)). We have previously

held that “[a] genuine dispute of material fact exists if ‘there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.’” Id. (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986)). In evaluating “whether a genuine dispute of material



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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


fact exists, the court must pierce the pleadings and assess the proof as represented in depositions,

answers to interrogatories, admissions, and affidavits that are part of the record.” Id. It is a

bedrock principle of any summary-judgment analysis that “the court must view the facts in the

light most favorable to the non-moving party.” Id. (citing Scott v. Harris, 550 U.S. 372, 378

(2007)).

                                                II.

       Because the majority assumes without deciding that Mansfield established a prima facie

case of retaliation, the burden shifts to the City to provide a legitimate, nondiscriminatory reason

that Mansfield was not promoted. The City argues that Wood’s experience and performance

during the job-application process demonstrated that he was a more qualified applicant than

Mansfield. Thus, the burden shifts back to Mansfield to establish that the City’s articulated

reason for not selecting Mansfield is pretext for discrimination. Pierson v. Quad/Graphics

Printing Corp., 749 F.3d 530, 539 (6th Cir. 2014). An employee may demonstrate that an

employer’s stated reason for taking an adverse employment action was pretext by showing “that

the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s

challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Id. (quoting

Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (en banc)).

       On the record before us, the evidence is clear that at some point after Mansfield filed a

complaint with the EEOC, Assistant Chief Roy Fields was overheard saying “[a]ll we have to do

is come up with a good reason of why we promoted Wood.” R. 38-5 (Campbell Dep. at 37)

(Page ID #999) (emphasis added). I believe that this quotation alone creates a factual dispute

about whether the City’s stated reason actually motivated its decision to promote Wood instead

of Mansfield because it suggests that the rationale offered by the department may have changed



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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


or shifted over time. But we need not look at the facts out of context; Fields’s quotation coupled

with “Major Hudgens’s boorish behavior and unprofessional remarks” toward Mansfield and

Hudgens’s “major influence over the police department’s day-to-day operation” creates a

genuine dispute of material fact regarding the true reasons behind Mansfield not being promoted.

Maj. Op. at 12. We have previously held that:

       Shifting justifications over time calls the credibility of those justifications into
       question. By showing that the defendants’ justification for firing him changed
       over time, [the plaintiff] shows a genuine issue of fact that the defendants’
       proffered reason was not only false, but that the falsity was a pretext for
       discrimination.

Pierson, 749 F.3d at 540 (quoting Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir.

2002)). Although it is possible that the department chose Wood over Mansfield for perfectly

legitimate and legal reasons, the quote about coming up with a reason for the decision could lead

a reasonable jury to conclude that the department shifted its reasons over time. Because “[s]uch

shifting justifications raise an inference that the proffered reasons are false and are pretext for

discrimination,” I conclude that summary judgment on the question of pretext is therefore

improper. Id. at 541.

                                                III.

       Finally, I emphasize the procedural posture of this case. We are reviewing this case on a

motion for summary judgment. Our role is not to try the case. The question before us is only

whether Mansfield has provided evidence sufficient to create a material factual dispute. Because

we must view the facts in the light most favorable to Mansfield, the non-movant, and because we

must draw all reasonable inferences in Mansfield’s favor, we should find that summary judgment

is improper. Because jurors of reason could disagree about why Wood was promoted and




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Case No. 16-6613, Trey Mansfield v. City of Murfreesboro


Mansfield was not, summary judgment should not be granted. I would therefore reverse the

district court’s order granting summary judgment to the City and remand for further proceedings.




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