                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1041n.06

                                           No. 11-3655

                          UNITED STATES COURT OF APPEALS                                  FILED
                               FOR THE SIXTH CIRCUIT                                   Sep 28, 2012
                                                                                DEBORAH S. HUNT, Clerk

CHARLOTTE BECK,                                  )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )   ON APPEAL FROM THE UNITED
v.                                               )   STATES DISTRICT COURT FOR THE
                                                 )   NORTHERN DISTRICT OF OHIO
BUCKEYE PIPELINE SERVICES CO.,                   )
                                                 )
       Defendant-Appellee.                       )



       Before: CLAY and SUTTON, Circuit Judges; RICE, District Judge.*


       SUTTON, Circuit Judge. Charlotte Beck sued her employer, Buckeye Pipeline Services Co.,

alleging that the company discriminated against her based on gender and age when it discharged her

as part of a company-wide reduction in force. The district court granted summary judgment to

Buckeye. We affirm.


                                                I.


       In spring 2009, Buckeye assembled ten company leaders as part of a “design team” to reform

the company’s organizational structure. R. 28-4 at 2 (Page ID #158). The new structure focused on

decentralized, team-based leadership rather than centralized, top-down control, id. at 2–4 (Page ID



       *
         The Honorable Walter Herbert Rice, United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 11-3655
Beck v. Buckeye Pipeline Services Co.

#158–60), and promoted “accountability, flexibility, adaptability, [and] teamwork” among

employees. Id. at 3–4 (Page ID #159–60).


       After revamping the company’s organization, the design team created a new system for

evaluating employees. Id. at 3–4. The team assigned each employee two ratings: an “A” rating that

assessed the employee’s “[s]kill [p]otential,” and a “B” rating that assessed the employee’s “[a]bility

to [w]ork [i]n and [p]romote [t]he [n]ew [c]ulture,” which included things like whether the employee

was “[a] good listener and communicator,” “willing to work in a team,” “proactive and accountable,”

and able to “make good judgments about priorities without close supervision.” R.28-2 at 8–9 (Page

ID #151–52). The team required at least two people with knowledge of the employee to present their

views and to “cite specific examples of behaviors that supported a proposed grade.” R.28-4 at 4

(Page ID #160). An employee could earn a score ranging from zero to four for each rating with four

being the highest. Id. The matrix combined the scores by multiplying the A score by ten points and

the B score by fifteen points and adding the two values together, creating one hundred potential

points. Id. at 9 (Page ID #152). The team decided that the company would not retain any employee

who received fewer than sixty points. Id.


       In late June and early July 2009, the design team split into smaller groups to conduct the

employee evaluations. R.28-3 at 2–3 (Page ID #155–56); R.28-21 at 88–89 (Page ID #1129–39).

Five people—Carl Ostach, Rick Bishop, Roger Hatch, Mark Johnson and Bill Serra—evaluated the

employees who worked at Buckeye’s Lima, Ohio locations, R.28-21 at 83 (Page ID #1124), which

included Beck, a twelve-hour operator at Buckeye’s Lima Station. Id. at 6 (Page ID #162); R.28-12

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at 49 (Page ID #605). At that time, Beck, fifty years old, had worked at Buckeye for over sixteen

years. R.28-13 at 17 (Page ID #760); R.28-14 at 2 (Page ID #764); R.28-4 at 6 (Page ID #162). She

was the only woman among the eight twelve-hour operators at Lima Station. R.29-1 at 127 (Page

ID #1317); R.28-21 at 33–34 (Page ID #1074–75).


       Three members of the five-person group—Ostach, Bishop and Johnson—provided

information about Beck’s performance. R.28-21 at 100, 106, 110 (Page ID #1141, 1147, 1151).

Ostach described Beck as someone who “complained about the way things were scheduled, [and]

complained about directions that the controllers were giving in Lima,” and who resisted the

implementation of new safety programs. R.28-21 at 100–05 (Page ID #1141–46). Bishop said that

Beck “was not much of a team-player” because she frequently refused to fill in for other operators,

and she had twice failed to address problems inherited from other operators, which had to be

corrected after her shift. R.28-6 at 5–6 (Page ID #175–76). Johnson said Beck “was not particularly

cooperative with the Control Center, and . . . was slow to respond to its requests.” R.28-3 at 3 (Page

ID #155). He also said that, “[r]ather than working with the Control Center to find solutions to

problems, Ms. Beck tended to state that the problem was not her responsibility,” which Johnson

thought meant Beck “likely would not thrive in the new environment, which placed a particularly

high value on teamwork.” Id. Based on this information, the five-person group gave Beck an A

score of two and a B score of one, which added up to thirty-five points. R.28-2 at 5 (Page ID #148).

Because Beck’s score fell well below the sixty-point threshold for remaining at Buckeye, the




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Beck v. Buckeye Pipeline Services Co.

company fired her (and 139 other employees) on June 20, 2009. R.28-4 at 6 (Page ID #162). A

younger, male employee with less experience was assigned to Beck’s position as a 12-hour operator.


       Beck sued Buckeye, alleging gender and age discrimination under Ohio law. Ohio Rev. Code

§§ 4112.02, 4112.99. The district court granted summary judgment to Buckeye.


                                                II.


       Ohio courts apply the federal burden-shifting framework set forth in McDonnell-Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973), to discrimination claims filed under Ohio law. Helmick

v. Cincinnati Word Processing, Inc., 543 N.E.2d 1212, 1215 n.2 (Ohio 1989). For purposes of

reviewing the district court’s summary judgment ruling, the parties agree that Beck has made a prima

facie case and that Buckeye has offered a legitimate, non-discriminatory reason for firing Beck: the

company-wide reduction in force. Appellant Br. at 13; Appellee Br. at 18. That puts the burden on

Beck to show that Buckeye’s proffered rationale for firing her was a pretext for discrimination,

Upshaw v. Ford Motor Co., 576 F.3d 576, 586 (6th Cir. 2009), a not inconsiderable burden given

that in reduction-in-force cases “the most common legitimate reasons for the discharge are the work

force reductions” themselves. Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990); see

also Southworth v. N. Trust Sec. Inc., 960 N.E.2d 473, 480 (Ohio Ct. App. 2011) (“[I]n a [reduction

in force], qualified employees are going to be discharged.”). Acknowledging that a reduction in

force would be a legitimate reason to discharge her, she claims nonetheless that “numerous




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circumstances tend to show that [her] termination was motivated by age and/or gender

discrimination.” Appellant Br. at 20. We disagree.


        Beck submits that the design team’s reliance on “subjective criteria” in selecting her for

termination permits the inference that she was “singl[ed] out” because of her age and gender.

Appellant Br. at 13. Subjective criteria, it is true, sometimes make it difficult to distinguish between

lawful and unlawful employment actions, and they deserve “careful[] scrutin[y].” Rowe v. Cleveland

Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir. 1982). But “flexibility in

determining individual components of a matrix score does not indicate discrimination.” Browning

v. Dep’t of the Army, 436 F.3d 692, 697 (6th Cir. 2009) (quoting Brown v. EG&G Mound Applied

Tech., Inc., 117 F. Supp. 2d 671, 680 (S.D. Ohio 2000)). The question “is whether the subjective

criteria were used to disguise discriminatory action.” Grano v. Dep’t of Dev. of Columbus, 699 F.2d

836, 837 (6th Cir. 1983).


        Beyond her general concern about subjective criteria, Beck does not challenge as

discriminatory any of the specific criteria the design team used to evaluate her: whether an employee

was “a good listener and communicator[,] . . . willing to work in a team[,] . . . accepts

accountability[,] . . . [and] works with speed, energy and efficiency.” R.28-2 at 9 (Page ID #152).

Nor could she. None of these criteria discriminates based on gender or age.


        Beck instead argues that application of these criteria to her was a pretext for discrimination

because the design team’s evaluation conflicted with the assessment of her immediate supervisor,


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Beck v. Buckeye Pipeline Services Co.

Kevin Dansby. Dansby was not a member of the design team, but Bishop solicited his opinion about

the employees he supervised. Dansby, it is true, said Beck was a good employee. But he said the

same thing about all of his charges. He “told [Bishop] . . . everybody on the list that I thought were

good performers.” R.31 at 105 (Page ID #1524). And when “asked if [he] had to phase out some

employees, who would [he] phase out[,] . . . [he] said none of them,” because “they were all good

performers and . . . [he] wouldn’t phase out any employee.” Id. at 105–06 (Page ID #1524–25).

“You’re not being of much help here,” Bishop eventually responded. Id. at 108–10 (Page ID

#1527–29).


       Dansby’s unwillingness to criticize any of his employees in connection with a reduction in

force does not cast doubt on the veracity of the experiences that Ostach, Bishop and Johnson

described when evaluating Beck. Despite her argument to the contrary, all three had personally

worked with Beck. R.28-2 at 4–5 (Page ID #147–148); R.28-6 at 2 (Page ID #172); R.28-3 at 3

(Page ID #155); cf. R.28-12 at 53 (Page ID #609). They said she complained often, resisted

direction, responded slowly, was uncooperative and was not a team player. R.28-21 at 100–11 (Page

ID #1141–1152); R.28-2 at 4–6 (Page ID #147–49); R.28-3 at 3 (Page ID #155); R.28-6 at 5–6 (Page

ID #175–76). See Idemudia v. Chase, 434 F. App’x 495, 505 (6th Cir. 2011) (citing specific

examples to support employer’s subjective evaluation). Dansby disagreed with these assessments

at his deposition but never shared his contrary thoughts with Bishop before the team evaluated Beck.

R.31 at 105–10, 127–28 (Page ID #1524–29, 1546–47). Dansby’s satisfaction with Beck’s work

under the old system at any rate does not prove she would succeed under the new system. See Peters


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Beck v. Buckeye Pipeline Services Co.

v. Lincoln Elec. Co., 285 F.3d 456, 474 (6th Cir. 2002). The design team, and only the design team,

was asked to decide what qualities to require of employees in Buckeye’s new management system.


       Beck has one other objection to the team’s evaluation. She says the team knew Bishop had

spoken to Dansby and expected Bishop’s evaluation comments to reflect Dansby’s opinion. By

sharing an opinion that conflicted with Dansby’s, she says Bishop violated the team’s policies for

conducting evaluations. Not true. The team understood Bishop would speak to Dansby, but did not

expect him to be merely a conduit for Dansby’s opinion: in Ostach’s words, Bishop “would give his

input based on what his knowledge was of the employee . . . as well as what the area supervisor’s[,

Dansby’s], input was.” R.28-21 at 84 (Page ID #1125) (emphasis added). The fact that Bishop

communicated a somewhat negative review to the team does not show, as Beck argues, that he

provided “false information . . . by claim[ing] that Dansby [said] Beck [w]as a complainer and not

a team player.” Appellant Br. at 22. There is no evidence in the record to support a finding that

Bishop told the team that Dansby believed that Beck was a complainer and not a team player.

Bishop said Dansby “tended to be a high grader and was reluctant to provide critical comments about

the employees under his supervision. At the same time, [he] was not able to refute the specific

examples of behaviors that I cited to him.” R.28-6 at 5 (Page ID #175). As a result, in presenting

his own evaluation, Bishop was entitled to disregard Dansby’s opinion, which “did not have much

influence in the scoring recommendations” Bishop made to the team. Id. Beck, to say nothing of

every other employee under Dansby’s supervision, may wish that Bishop had adopted Dansby’s

opinion of her, but she cannot complain that he misrepresented it.


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       When all is said and done, the use of subjective evaluation criteria does not by itself show

discrimination, particularly in a reduction in force case. The dissent’s thoughtful conclusion to the

contrary relies primarily on the theory that the reduction in force did not actually motivate Beck’s

discharge. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). To

prevail under this theory, Beck “must show that the sheer weight of the circumstantial evidence of

discrimination makes it more likely than not” that Buckeye terminated her based on a pretext.

Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 503 (6th Cir. 2007) (quotations

omitted). But Beck has no evidence that Buckeye terminated women or older workers at a

disproportionately high rate during the reduction in force; that Buckeye deviated from its normal use

of subjective evaluation procedures; or that Bishop lied about Dansby’s comments. In the absence

of any such evidence, the mere fact that Buckeye used subjective criteria cannot by itself establish

pretext. Browning, 436 F.3d at 697.


                                                III.


       For these reasons, we affirm.




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        CLAY, Circuit Judge, dissenting. The majority mischaracterizes the dissent’s argument

as well as the appropriate legal standard to be employed under the circumstances of this case. The

issue is not simply whether the use of subjective criteria, in and of itself, demonstrates discrimination

in a reduction-in-force case. Rather, the issue is whether there is enough evidence, circumstantial

or otherwise, to suggest that discrimination was at least one of the factors motivating Plaintiff’s

termination, under circumstances where discrimination could be masked under the cloak of

subjectivity. White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008); see Griffin v.

Finkbeiner, 689 F.3d 584, 594 n.7 (6th Cir. 2012) (noting that “single-motive and mixed-motive

theories are not distinct claims, but rather different ways of analyzing the same claim” and the

decision about which theory the case involves “may not always occur before the summary-judgment

stage”). See also Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 461 (6th Cir. 2004)

(“[S]ubjective reasons provide ready mechanisms for discrimination.” (internal quotation marks

omitted)).


        Plaintiff Charlotte Beck, who was over fifty years old and the only female twelve-hour

operator at Defendant’s Lima plant, was terminated after sixteen years of well-reviewed, discipline-

free performance. To justify Plaintiff’s termination, Defendant used a system heavily reliant on

subjective criteria. Defendant then applied its system to Plaintiff in a manner inconsistent with its

own established procedures. Furthermore, the record demonstrates that Defendant solicited the input

of Plaintiff’s direct supervisor, then ignored his input when it failed to comport with the negative

reviews of Plaintiff produced by Defendant’s Design Team. Under these circumstances, sufficient


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evidence that Defendant’s decision was pretextual renders this case inappropriate for disposition at

summary judgment. For these reasons, I respectfully dissent.


       In absence of direct evidence of discrimination, the plaintiff must first make out a prima facie

case for discrimination by showing that (1) she is a member of a protected class, (2) she was

subjected to an adverse employment action, (3) she was qualified, and (4) she was replaced by

someone outside of the protected class. Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009);

Helmick v. Cincinnati Word Processing, Inc., 543 N.E.2d 1212, 1215 n.2 (Ohio 1989) (applying

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to discrimination claims filed under

Ohio law). Because Plaintiff’s termination arose as part of a work force reduction, “this [C]ourt has

modified the fourth element to require the plaintiff to provide ‘additional direct, circumstantial, or

statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for

impermissible reasons.’” Geiger, 579 F.3d at 623 (quoting Barnes v. GenCorp, 896 F.2d 1457, 1465

(6th Cir. 1990)); see also Campbell v. PMI Food Equip. Group, Inc., 509 F.3d 776, 785–86 (6th Cir.

2007). After the plaintiff has made out a prima facie case of discrimination, the employer must

present a legitimate, non-discriminatory reason for the termination. Geiger, 579 F.3d at 626. The

burden of production then shifts back to the plaintiff to show that the employer’s proffered

nondiscriminatory reason was pretext. Id.


       Defendant in the instant case concedes that Plaintiff made out her prima facie case, and the

parties agree that the reduction in force satisfies Defendant’s burden of production. See Beck v.

Buckeye Pipe Line Servs. Co., No. 3:10-cv-319, 2011 WL 2076487, at *3 (N.D. Ohio May 25, 2011).

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Accordingly, the sole issue for our review is whether Plaintiff has met her burden of production as

to pretext. The majority concludes that Plaintiff failed to satisfy this burden. In so holding, the

majority confuses Plaintiff’s burden of production with a burden of persuasion, and imposes a

“pretext-plus” standard firmly rejected by the Supreme Court and this Court’s precedents.


        In Reeves v. Sanderson Plumbing Prods., Inc., the Supreme Court established that judgment

as a matter of law for a defendant in an employment discrimination case may be appropriate under

certain circumstances even if the plaintiff satisfies her burdens to show a prima facie case and

pretext. 530 U.S. 133, 148 (2000). Of course, depending on the circumstances, a prima facie case

and a showing of pretext can also support judgment for the plaintiff. Id. at 147–48. Accordingly,

“because a prima facie case and sufficient evidence to reject the employer’s explanation may permit

a finding of liability,” a court “err[s] in proceeding from the premise that [the] plaintiff must always

introduce additional, independent evidence of discrimination.” Id. at 149. Rather, whether judgment

is appropriate remains a heavily-context driven inquiry that “depends on a number of factors . . .

[including] the strength of the plaintiff’s prima facie case, the probative value of the proof that the

employer’s explanation is false, and any other evidence that supports the employer’s case and that

properly may be considered on a motion for judgment as a matter of law.” Id. at 148–49.


        In Blair v. Henry Filters, Inc., we extended the rationale of Reeves to the summary judgment

stage and concluded that “to survive summary judgment a plaintiff need only produce enough

evidence to support a prima facie case and to rebut, but not to disprove, the defendant’s proffered

rationale.” 505 F.3d 517, 532 (6th Cir. 2007). Accordingly, we held that a plaintiff “d[oes] not need

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Beck v. Buckeye Pipeline Services Co.

to produce additional evidence to support a finding of pretext; the evidence that [she] produced in

support of [her] prima facie case may, but will not necessarily, suffice to show a genuine issue of

material fact concerning pretext.” Id.


       A plaintiff can demonstrate pretext by one of the following three showings: “that the

employer’s stated reason for the adverse employment action (1) ha[d] no basis in fact; or (2) was not

the actual reason; or (3) was insufficient to explain the employer’s action.” White, 533 F.3d at 393.

The first category implicates evidence “that the proffered bases for the plaintiff’s discharge never

happened,” while the second category requires that the plaintiff “admit[] the factual basis underlying

the employer’s proffered explanation and further admit[] that such conduct could motivate

dismissal.” Manzer v. Diamond Shamrock Chems., Co., 29 F.3d 1078, 1084 (6th Cir. 1994). The

third category of pretext consists of evidence that other employees, particularly employees outside

the protected class, were not subjected to the same adverse employment decision even though they

engaged in substantially identical conduct to that which allegedly motivated the plaintiff’s

termination. Id.


       In the instant case, Plaintiff proceeded primarily down the second of these paths. She has not

disputed that Defendant was experiencing a company-wide reduction in force at the time of her

termination. However, she questions whether the reduction was the real basis for her dismissal,

given that Defendant never produced a satisfactory explanation for why Plaintiff was selected for

termination instead of one of her younger, male colleagues.              In contesting Defendant’s

explanation—that Plaintiff was terminated because she received low assessment scores from the

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Design Team—Plaintiff raises several compelling challenges to her evaluation. These challenges

create at least a material issue of fact about whether “an illegal motivation was more likely than [the

reason] offered by [Defendant].” Id.


       First, Plaintiff points out that the Ohio courts find it “suspicious” when an employer chooses

“to fire a qualified, older employee [while] retain[ing] younger ones” in a reduction in force.

Hoffman v. CHSHO, Inc., No. CA2004-09-072, 2005 WL 1799307, at *4 (Ohio Ct. App. Aug. 1,

2005) (citing Woodhouse v. Magnolia Hosp., 92 F.3d 248, 253 (5th Cir. 1996)). Under these

circumstances, the Ohio courts require the Defendant “to articulate reasons for singling out an

employee who is within the statutorily-protected class for termination, while retaining [an] employee

who is outside that class.” Id. Defendant has not met this standard.


       As a starting point, it bears mentioning that Defendant has never contended that Plaintiff’s

termination was justified because she was either lacking, or fell appreciably behind her colleagues,

in terms of her objective skills or qualifications. This, together with the other probative evidence

of discrimination in the case, should establish a triable issue as to pretext. Under our precedents,

when a plaintiff demonstrates that she is “as qualified as if not better qualified than [her retained

colleagues],” summary judgment is inappropriate. Provenzano v. LCI Holdings, Inc., 663 F.3d 806,

815 (6th Cir. 2011) (internal citations omitted).


       Significantly, this conclusion is only bolstered by the fact that Defendant has all but admitted

that the decision to terminate Plaintiff was based entirely on subjective criteria. The Design Team’s


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Beck v. Buckeye Pipeline Services Co.

evaluation process contained two components: an objective qualification component (worth roughly

forty percent of the employee’s score), and a subjective component (worth the remaining sixty

percent). Beck, 2011 WL 2076487, at *1–2. The objective portion, known as the “A” score,

measured the employee’s “technical ability or the physical ability to perform a particular task;”

whereas the “B” score represented whether the employee would “fit in” with Defendant’s “new

culture,” as judged by “being accountable for [one’s] actions, taking initiative, being a team player,

[and] having an entrepreneurial outlook.” Id. Defendant conceded at oral argument that Plaintiff’s

“A” score was within the range of the employees who were retained by the company. However,

Defendant provided no explanation for why it valued its subjective component over the objective

component, or why it chose this substantially subjective approach over alternatives that would be

less open to criticism. Rather, it is apparent from the record that Defendant deliberately used a

system which did not emphasize objective factors, such as education or training credentials, seniority

in the company, or simple technical skills. Any of these factors, or a simple recalibration of the “A”

and “B” scores might have removed or reduced subjectivity in the selection process.


         This Court has repeatedly emphasized that decisions made on the basis of subjective

criteria, such as whether an employee is a team player or whether she would fit into a new corporate

culture, can “provide a ready mechanism for discrimination,” and thus should be “carefully

scrutinized.” Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir.

1982); see also Hedrick, 355 F.3d at 461 (6th Cir. 2004). Although being a “team player” may have

been an important consideration for Defendant in carrying out its reduction in force, it should not


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be treated as an absolute defense to what may amount to unlawful discrimination. Idemudia v.

Chase, 434 F. App’x 495, 504–505 (6th Cir. 2011) (citing Wexler v. White’s Fine Furniture, 317

F.3d 564, 576 (6th Cir. 2003)). Additionally, the majority has far too quickly dismissed the

inconsistencies committed by the Design Team in performing Plaintiff’s assessment. Plaintiff has

provided credible evidence from which to infer that she did not receive a review by the required

number of individuals, that the individuals who reviewed her were not sufficiently familiar with her

work performance, and—most damning of all—that the Design Team solicited, and then deliberately

disregarded, a favorable review of Plaintiff’s performance by her direct supervisor when they found

they had insufficient information to complete Plaintiff’s review under the Design Team process. The

majority’s abrupt discharge of this last piece of evidence is particularly problematic, because it

ignores the legitimate possibility that Plaintiff’s supervisor—who was a supervisor over only twelve

employees—gave all of his employees favorable reviews simply because they all were performing

favorably, and not because he was incapable of properly evaluating them. Yet in spite of this

evidence, the majority claims that Plaintiff has not shown that Defendant “deviated from its normal

use of subjective evaluation procedures.” Maj. Op. at 8.


        The majority further faults Plaintiff for failing to prove “that Buckeye terminated women or

older workers at a disproportionately high rate during the reduction in force.” Id. While such

evidence would have been beneficial to Plaintiff’s case, it is simply not required in light of the other

evidence that she has put forward to rebut Defendant’s proffered rationale for terminating her. See

Geiger, 579 F.3d at 623 (requiring a plaintiff in a reduction-in-force case to adduce “additional


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direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the

plaintiff for discharge for impermissible reasons” (emphasis added) (internal quotation marks

omitted)).


        Despite citation to Rowe’s requirement of careful scrutiny in subjective-criteria cases, the

majority does nothing to embrace Rowe’s charge to carefully scrutinize employment decisions based

on subjective evaluations “in order to prevent abuse.” 690 F.2d at 93. Instead, the majority glibly

accepts Defendant’s emphasis on subjective criteria as a valid business judgment. The majority’s

inattention to Defendant’s use of subjective criteria is only magnified by the procedural posture of

this case. After all, the validity of a subjective review is an issue of fact ultimately best left to the

fact-finder. Ray v. Oakland Cnty. Circuit Court, 355 F. App’x 873, 885–86 (6th Cir. 2009). And

if we view the facts in Plaintiff’s favor—as we must on summary judgment—the competing accounts

about Plaintiff’s subjective qualifications suggest the need for a far more diligent inquiry than has

been indulged by the majority here.


        Given the above, clear disputes of material fact remain as to pretext. Because Plaintiff should

not be shouldering the entire burden of proving actual intentional discrimination at the summary

judgment stage, this case was prematurely decided. Accordingly, I respectfully dissent.




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