                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0028n.06
                                 Filed: January 12, 2005

                                              No. 03-1916

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


HELEN KAY SMITH, CYNTHIA BROOKS,

        Plaintiffs-Appellants,

                v.                                                     On Appeal from the United
                                                                       States District Court for the
SERVICE EMPLOYEES INTERNATIONAL                                        Eastern District of Michigan
UNION, LOCAL 79, AFL-CIO; TOM WOODRUFF;
DAVID MOTT; DEBBIE SCHNEIDER, Individually
and in Their Official Capacities, Jointly and
Severally,

        Defendants-Appellees.


                                                                 /

Before:         GUY and ROGERS, Circuit Judges; DOWD, District Judge.*

        RALPH B. GUY, JR., Circuit Judge.                 Plaintiffs, Helen Kay Smith and Cynthia

Brooks, appeal from the grant of summary judgment in favor of defendant, Service

Employees International Union, Local 79, AFL-CIO (SEIU), in this employment race

discrimination case brought under Title VII of the federal Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-1, and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws




        *
          The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 03-1916                                                                                  2

Ann. § 37.2101 (2004). After review of the record, the arguments, and the applicable law,

we affirm.

                                              I.

       Smith and Brooks, African American women, were both employed at SEIU. On

appeal, Smith pursues her race discrimination claims relating to (1) SEIU’s decision to hire

Smith in 2000 as a senior organizer in training rather than as a senior organizer, (2) SEIU’s

decision not to promote her in 2001 to organizing coordinator, and (3) SEIU’s termination

of her employment in 2001.        Brooks pursues only her claim that SEIU unlawfully

discriminated against her by terminating her employment in 2002.

       SEIU is a labor organization that serves as the umbrella organization for separate,

autonomous local union affiliates. SEIU employs approximately 200 field organizers and

support staff throughout North America. The SEIU organizers work with the separate

organizing staffs of the local union affiliates. Smith and Brooks were employed in SEIU’s

central region that is composed of 12 Midwestern states, including Michigan and Illinois.

       There are four nonsupervisory organizer positions at SEIU: (1) organizer in training,

an entry-level position; (2) organizer, the basic, line-level organizing position; (3) senior

organizer in training, a position typically one year in length designed to train organizers how

to, among other things, manage larger and more complex organizing campaigns; and (4)

senior organizer, a position for those expected to play a leadership role in managing larger

and more complex campaigns in coordination with the staff and elected officers of the local

union affiliates. All of these positions are considered nonmanagerial, and they are covered
No. 03-1916                                                                                               3

by a collective bargaining agreement between SEIU and the Union of Union Representatives,

an independent union representing SEIU’s employees.

        The next two positions in the organization chart are the organizing coordinator and

then the regional director of organizing, both of which are supervisory, nonbargaining unit

positions.

        At the times relevant to this case, Tom Woodruff was the executive vice president of

SEIU and was responsible for overseeing all activities of the central region. Debbie

Schneider was the assistant to the executive vice president and functioned as staff director or

chief of staff of the central region. Tony Condra was the regional director of organizing for

the central region.

A.      Factual History Relating to Smith

        Prior to working at SEIU, Smith worked as the assistant business agent, an intern

organizer, assistant director of organizing, and then organizing director for one of SEIU’s

local union affiliates. In May 2000, Condra recommended Smith be hired by SEIU as a

senior organizer. Smith, however, was hired as a senior organizer in training. SEIU provided

evidence that Smith was brought in at this lower position because (1) she had only three years

and four months of professional organizing experience,1 (2) her experience was at a local

affiliate with an uneven record of training and developing organizers, and (3) her experience

was limited to nursing homes. SEIU felt that Smith’s experience best qualified her for the




        1
        Smith claims she had five years of experience, but over a year and a half was in an unpaid capacity.
SEIU does not view volunteer work as a substitute for full-time paid organizing experience for hiring and
promotion purposes.
No. 03-1916                                                                                              4

even lower organizer position, but decided to hire her as a senior organizer in training based

on Condra’s recommendation.2

        Smith claims that Condra recommended Smith be given a two-step promotion to

organizing coordinator in March 2001, when she was still a senior organizer in training.3

Condra then recommended Smith be given a one-step promotion to senior organizer, which

she received in July 2001. In August, Robin Clark, a white woman, was placed in a

coordinator position for the central region. SEIU offered evidence that the coordinator

position was opened to allow Clark to return to her previously held coordinator position after

serving with an SEIU local union affiliate for one year.

        On September 28, 2001, Smith’s employment was terminated. The termination letter

gave numerous reasons for the termination, including:

        [Y]ou acted disrespectfully and high-handedly with coworkers, to the point that
        your coworkers asked for a meeting with the Central Region Organizing
        Director this past July to discuss problems they were having with you. The
        most glaring example of your inappropriate behavior occurred on July 13,
        when you got in to [sic] verbal altercations with co-workers Rashida
        Khermohamed and Demetrius Davis. When Rashida stated that she wanted to
        talk to her supervisor, Tony Condra, you pointed your finger in her face saying,
        “Bitch, this is my Mother Fucking man . . . and if you want to talk to Tony, you
        have to go through the chain of command. Talk to me and I’ll talk to Tony.
        I’m your Mother Fucking supervisor and this is my Goddamn man, so you


        2
         SEIU offered evidence that two white applicants with more experience than Smith were hired as
organizers. Maria Wickstrom was hired as an organizer in 1999. She had seven years of professional
organizing experience with the AFL-CIO. Stella Lindsay was hired as an organizer six months before Smith
was hired. Lindsay had 12 years of professional organizing experience with the International Ladies Garment
Workers Union and the Union of Needletrades Industrial & Textile Employees.
        3
         The parties dispute the particulars of the recommendation. SEIU claims Condra asked Woodruff
to authorize the creation of a “roving” organizing coordinator position that he would want either Smith or
Gabe Morgan to fill. Woodruff states he rejected the idea of such a new position. Smith claims approval for
a roving organizing coordinator was not necessary because travel was an expected part of all coordinator
positions.
No. 03-1916                                                                                      5

       better talk to me.” When Demetrius Davis tried to intercede, you then turned
       on him. Your treatment of both Rashida and Demetrius was totally
       unacceptable. Furthermore, you were not Rashida’s supervisor, and she was
       not required to go through you if she wanted to talk to Tony.

       The termination letter also stated that Smith had misrepresented information about

Khermohamed to Byron Hobbs. As a result, Hobbs wrote a memorandum to SEIU on July

31, 2001, asking that Khermohamed be removed from his local affiliate. After he learned

Smith’s representations were false, he rescinded the memorandum. Smith’s termination letter

stated: “Your conduct not only was dishonest, but also undermines your relationship with

coworkers and your and SEIU’s relationship with locals.”

       Finally, the letter accused Smith of failing to participate in training programs or

discuss her development plan, failing to work honestly and respectfully with leaders and staff

of the Local 73HC, and failing to cooperate and meet with Nancy Cross, who was

investigating the July 13 and other incidents on behalf of SEIU.

       When Debbie Schneider made the decision to terminate Smith’s employment, she had

the following information available to her: (1) Cross’s report, which concluded that there was

“no credible information as to what was said to whom” on July 13; (2) a letter of complaint

from Khermohamed describing the July 13 incident; (3) a letter from Davis corroborating

Khermohamed’s account; (4) a memorandum signed by five organizers who contradicted

Smith’s allegation that Khermohamed accused Hobbs of sex discrimination; and (5) a tape

recording made by Davis of a telephone conversation between Davis and Condra in which

Condra asked Davis to give a false account of what had occurred on July 13.4 In the taped

       4
           Smith does not challenge SEIU’s claim that the tape is admissible in federal court.
No. 03-1916                                                                                   6

conversation Condra told Davis “there’s two things I want you to deny . . . [a]nd I’ll cover

your ass.” Condra wanted Davis to “put a letter together . . . and say that you never had a

controversy or a conversation with [Smith], or any kind of disruption with [Smith] –

(inaudible) - - that day . . . and you are clueless that you don’t know what’s going on . . . .”

Later, Condra corroborated Smith’s statement that Davis was the aggressor in the incident.

       Sharon Nelson, an African American woman, was hired as a senior organizer after

Smith was discharged. Smith claims that Nelson was promoted to senior organizer with less

experience than Smith had when she was hired as a senior organizer in training.

B.     Factual History Relating to Brooks

       Brooks was hired at SEIU in 1998 as an organizer in training and promoted to

organizer in 1999. She worked out of the Detroit office of the central region. On October

23, 2001, Brooks received a permanent transfer to the Chicago office effective November 2,

2001. Brooks grieved the transfer. As a result, she received a one-month extension of time

to transfer.

       On November 25, 2001, Brooks asked Schneider for permission to carry 30 days of

2001 vacation leave over into 2002 so that Brooks could take off work from January 2

through February 4, 2002. After learning that Brooks had just taken two weeks off,

Schneider discussed the request with Brooks. Brooks said the two weeks had not been for

vacation but to look for a place in Chicago. Brooks told Schneider that she had found a place

ready to move into during the first week of December.

       On December 5, 2001, Judith McCullough, SEIU’s Operations Manager, sent a letter

to Brooks stating the following:
No. 03-1916                                                                                 7

              I am writing to confirm that you have accepted a permanent transfer to
       Chicago. You told SEIU that you had found permanent housing effective
       December 4, 2001. SEIU will make your permanent transfer to Chicago
       effective on that date.

       In fact, however, Brooks had not obtained permanent housing in Chicago. Instead,

Brooks lived with a cousin in Chicago, at times sleeping on the floor. She states that she did

not want to give up her house in Detroit until the arbitrator made a decision on her transfer

grievance. Brooks did not correct SEIU’s understanding of her agreement to the transfer or

her permanent housing situation.

       Brooks took two extended, paid, sick leaves and did not work in the month of

December 2001. She also used the carried-over vacation days and did not work in the month

of January 2002.

       Brooks’s Michigan physician provided a note stating that Brooks could return to work

on “2/4/02 with no restrictions,” but Brooks did not report for work on February 4. On

February 5, Brooks worked but said she would be out two days because she was sick. The

local union organizing leader reported to Schneider that Brooks said she was commuting from

Michigan and would not be able to routinely work on weekends. Brooks then provided a

doctor’s note dated February 8 saying that Brooks could work only 40 hours a week (seven

to eight hours a day) with two days off a week. Brooks states that she took the last two weeks

of March off as earned compensation time, which was approved by Schneider.

       Schneider scheduled a meeting with Brooks and a union representative on April 1,

2002, and asked Brooks to bring documentation of her move to Chicago. At the meeting,
No. 03-1916                                                                                          8

Brooks told Schneider that she would not give up her house in Detroit until the arbitration of

the grievance was completed.

       On April 5, 2002, Debbie Schneider notified Brooks that she was being discharged.

The termination letter stated that Brooks was discharged because (1) Brooks fraudulently

misled SEIU into believing she had relocated her personal residence to Chicago in order to

collect paid leave she otherwise would not have received, (2) Brooks had refused to do work

an organizer is routinely expected to do, (3) Brooks failed to work effectively with the last

major organizing local in the central region that was willing to work with her.

C.     Procedural History

       Plaintiffs filed their complaint on May 20, 2002, alleging race discrimination in

violation of Title VII and the ELCRA by SEIU, Tom Woodruff, Debbie Schneider, and David

Mott.5 They also claimed retaliation, common law wrongful discharge, and defamation.

Plaintiffs later dismissed or abandoned all claims except the discrimination claims against

SEIU. The district court granted SEIU summary judgment, and this appeal followed.

                                                    II.

       We review de novo the district court’s grant of summary judgment. See, e.g., Smith

v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when

there are no issues of material fact in dispute, and the moving party is entitled to judgment

as a matter of law. FED. R. CIV. P. 56(c). In deciding a motion for summary judgment, the

court must view the factual evidence and draw all reasonable inferences in favor of the



       5
           Mott was the staff director who oversaw SEIU’s program to recruit and train organizers.
No. 03-1916                                                                                  9

nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

       Because neither Smith nor Brooks presented direct evidence of racial discrimination,

the McDonnell Douglas burden shifting approach applies to this case under both Title VII and

the ELCRA. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hazle v. Ford Motor

Co., 628 N.W.2d 515, 520-21 (Mich. 2001). Under the McDonnell Douglas framework, the

plaintiff faces the initial burden of presenting a prima facie case of discrimination. Vaughn

v. Watkins Motor Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002). The establishment of a

prima facie case creates a rebuttable presumption of discrimination and requires the defendant

to articulate some legitimate, nondiscriminatory reason for taking the challenged adverse

employment action. Id. If the defendant is able to satisfy this burden, the plaintiff must then

prove that the proffered reason was actually a pretext to hide unlawful discrimination. Id.

A.     Smith - Failure to Hire as Senior Organizer

       The district court held that Smith’s Title VII claim that SEIU unlawfully discriminated

against her when it failed to hire her as a senior organizer was time barred. On appeal, Smith

pursues this claim only under the ELCRA. We find that Smith did not meet her burden of

proving that SEIU’s legitimate nondiscriminatory reasons for hiring her as a senior organizer

in training were pretextual.

       An employee may demonstrate pretext with evidence of how the employer treated

similarly situated employees outside the protected class. Lytle v. Malady, 579 N.W.2d 906,

917 (Mich. 1998). To show that an employee was similarly situated, the plaintiff must prove

that all of the relevant aspects of her employment situation were nearly identical to those of
No. 03-1916                                                                                  10

another employee’s employment situation. Town v. Mich. Bell Tel. Co., 568 N.W.2d 64, 70

(Mich. 1997). A plaintiff cannot survive summary judgment by relying only on subjective

statements that she was more qualified than someone else to receive a certain position. Hazle,

628 N.W.2d at 527-28. Instead, the plaintiff must show that there is a genuine issue of

material fact as to whether discriminatory animus motivated the employer, not whether the

employer was wise, shrewd, prudent, or competent. Id. at 527.

       Smith states that seven other employees were hired or promoted to the senior organizer

position with equal or fewer qualifications than she had. Karen Backus, Tanya Boone, Renee

Watkins, Mary Beth Tinker, Greg Maron, Joseph Geevarghese, and Robin Clark. SEIU

offered unrebutted evidence that Backus, Watkins, and Tinker were not hired as senior

organizers. Backus was hired as an international representative; Watkins and Tinker were

hired as nurse specialists. All three received these positions because of their experience and

training as nurses. Smith argues that it is appropriate to compare the senior organizer position

to the international representative and nurse specialist positions because the salaries were all

paid out of the same budget. We don’t find this argument to be persuasive. In any event,

Smith was not similarly situated to these three employees because she was not a nurse.

       Smith also was not similarly situated to Boone, Maron, and Clark because they had

more professional organizing experience. Smith had only a little more than three years of

professional organizing experience. Boone and Maron had five years of professional

experience. Clark had four years of professional organizing experience; and, in addition, she

had worked with a large national union, as opposed to a local organization.
No. 03-1916                                                                              11

       Finally, Geevarghese, an Asian-American male, had a few months less professional

organizing experience than Smith, but he had worked for seven months with the SEIU, as

opposed to a local organization, before being hired as a senior organizer. Thus, he also was

not similarly situated to Smith because of his prior tenure at SEIU. The district court,

therefore, properly granted summary judgment on this claim.

B.     Smith - Failure to Promote

       Smith also claims racial discrimination in SEIU’s failure to give her a two-step

promotion from senior organizer in training to organizing coordinator. To establish a prima

facie case of racial discrimination based upon a failure to promote, Smith must demonstrate

that: (1) she is a member of a protected class; (2) she applied for and was qualified for a

promotion; (3) she was considered for and denied the promotion; and (4) other employees of

similar qualifications who were not members of the protected class received promotions at

the time Smith’s request for promotion was denied. Nguyen v. City of Cleveland, 229 F.3d

559, 562-63 (6th Cir. 2000).

       SEIU argues that Smith failed to establish a prima facie case because there were no

vacant coordinator positions in March 2001. Thus, SEIU claims Smith never applied for and

was never denied a promotion. Smith responds that a position must have been open which

she was denied because in August 2001, Clark was placed in a coordinator position in the

central region. Even if we accept Smith’s reasoning, Smith has not established a prima facie

case because Clark was not similarly situated.

       For two employees to be considered similarly-situated, the similarities between the

plaintiff and the other employee must exist “in all relevant aspects of their respective
No. 03-1916                                                                                12

employment circumstances.” Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004)

(internal quotation marks and citation omitted). Differences in job title, responsibilities,

experience, and work record can be used to determine whether two employees are similarly

situated. Id.

         We conclude that Clark was not similarly situated to Smith because Clark had previous

experience as an organizing coordinator. Thus, Clark was not promoted to the coordinator

position. Instead, she was returning to a position she held before leaving to work for a local

union affiliate. Because Smith failed to present evidence sufficient to raise a genuine issue

of material fact to establish that she was treated differently than a similarly situated

nonprotected employee, we affirm the district court’s grant of summary judgment on Smith’s

failure-to-promote claim.

C.       Smith - Discharge

         In order to establish a prima facie case of discriminatory discharge, Smith must show

that (1) she is a member of a protected class, (2) she was terminated from her employment,

(3) she was qualified for the position in question, and (4) she was replaced by a nonprotected

person or a similarly situated nonprotected employee was treated more favorably.

McDonnell Douglas, 411 U.S. at 802; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.

1992).

         We affirm the grant of summary judgment on Smith’s discriminatory discharge claim

because she failed to submit sufficient evidence to establish the fourth element of a prima

facie case. Smith does not argue that a similarly situated employee was treated more

favorably, and she failed to prove that she was replaced by someone outside the protected
No. 03-1916                                                                                13

class. Smith asserts that Nelson’s promotion to organizer was a sham and an attempt by

SEIU to appear racially neutral in terminating Smith. She fails to point to any evidence in

the record, however, regarding Nelson’s qualifications or experience. Bald assertions are

insufficient to create a genuine issue of material fact. FED. R. CIV. P. 56(e); Bryant v.

Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974) (holding that an opponent to a summary

judgment motion may not rest merely upon “conclusory and unsupported allegations, rooted

in speculation”).

       Even if she had established a prima facie case, summary judgment was nonetheless

proper because Smith failed to show that SEIU’s proffered reasons were pretextual.

Schneider stated that one of the reasons for Smith’s discharge was her disrespectful treatment

of fellow employees. One of the specific examples Schneider cited was the July 13 incident

with Khermohamed. Smith argues that the overwhelming evidence shows that she was not

involved in an altercation with Khermohamed.

       A plaintiff can meet his burden of showing pretext by producing evidence that the

employer’s proffered reason for his discharge was false. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 147 (2000). We have adopted an “honest belief” rule with regard

to an employer’s proffered reason for discharging an employee. Majewski v. Automatic Data

Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). “[A]s long as an employer has an

honest belief in its proffered nondiscriminatory reason for discharging an employee, the

employee cannot establish that the reason was pretextual simply because it is ultimately

shown to be incorrect.” Id. The employer has an honest belief in its reasons if the employer
No. 03-1916                                                                                         14

reasonably relied “on the particularized facts that were before it at the time the decision was

made.” Id. (internal quotation marks and citation omitted).

       Schneider relied on the following particularized facts in making the termination

decision: (1) Khermohamed and Davis signed statements accusing Smith of verbally abusing

Khermohamed on July 13; (2) Condra had asked Davis to falsely report the July 13 incident,

which undermined his credibility when he gave a statement stating that Davis, not Smith, was

being verbally abusive that day; (3) a meeting had been called by coworkers to discuss

complaints about Smith’s treatment of fellow employees; and (4) several organizers signed

a statement denying that Khermohamed ever accused Hobbs of sex discrimination. Smith has

failed to present any evidence to refute Schnieder’s honest belief that Smith engaged in

inappropriate conduct toward her fellow employees that justified her discharge.

       Smith argues that Khermohamed’s letter should have been discounted because she was

a disgruntled employee,6 and it was unreasonable to discount Condra’s eyewitness account

of the July 13 incident. Even if we were to accept this reasoning, this is not enough to prove

that Schneider’s decision to terminate Smith for inappropriate treatment of fellow employees

was unreasonable or pretextual. Smith does not discount the evidence of her false statements

to Hobbs and the complaints of other organizers about her mistreatment of them. This

information supports Schneider’s decision to terminate Smith because of her inappropriate

treatment of her fellow employees. Moreover, it was not unreasonable for Schneider to

question the credibility of Condra’s statement in the face of not only Khermohamed’s


       6
         Condra attempted to discharge Khermohamed on August 6, the day she wrote her letter describing
the July 13 incident, but Condra’s decision was overruled by his superiors.
No. 03-1916                                                                               15

statement but also Davis’s statement, as well as the tape recording where Condra asked Davis

to lie about what happened on July 13. Because Smith failed to meet her burden of proving

SEIU’s proffered reasons for her termination were pretextual, we affirm the grant of summary

judgment.

D.     Brooks - Discharge

       In response to Brooks’s unlawful discrimination claim, SEIU offered evidence that one

of its reasons for terminating Brooks’s employment was that she misled SEIU into believing

that she had relocated to Chicago in order to collect paid leave she otherwise would not have

received. Brooks argues that the evidence in the record reveals that she never told anyone

she had acquired permanent housing in Chicago.          She argues that the district court

impermissibly made a credibility determination. The question is not whether Brooks’s

evidence was credible. The question is whether SEIU honestly believed in its proffered

nondiscriminatory reason for discharging Brooks. Majewski, 274 F.3d at 1117.

       The undisputed evidence shows that during a telephone conversation Brooks told

Schneider that she had found a place in Chicago that would be available on December 5. She

now explains that while she said she had found a house that would be available on December

5, she never said that she had actually purchased that house. On December 5, however, SEIU

sent a letter to Brooks confirming that Brooks had told SEIU that she had found permanent

housing. Brooks never corrected what she has now shown was a misunderstanding. Brooks’s

assertion that she did not actually tell anyone that she had permanent housing in Chicago is

insufficient to call into question SEIU’s honest belief that she did.        No credibility

determination is needed to reach this conclusion. Nor are we persuaded by Brooks’s
No. 03-1916                                                                                                16

contention that SEIU should have known she had not purchased a home in Chicago because

she did not apply for a moving expense benefit or stipend. Because we find that Brooks has

not met her burden of raising a genuine issue of material fact as to whether SEIU’s reasons

for discharging her were pretextual, we affirm the grant of summary judgment.7

        AFFIRMED.




        7
          In the statement of facts, Brooks alludes to two arguments that she does not develop in the argument
section of the brief. First, she states that a white female, Stella Lindsey, applied for and received multiple
weeks of medical leave, decided not to transfer, and was laid off rather than discharged. SEIU responds that
Lindsey was not similarly situated because there was no evidence that Lindsey misled SEIU with respect to
her transfer decision. Second, Brooks challenges the statement in her termination letter that she was not
welcomed at any central region locals. She does this by arguing that the letters must have been solicited by
Schneider because the letters from the locals were all written within a few weeks of each other just before
Brooks’s termination. Schneider stated in an affidavit that she asked for written confirmation from the locals
after receiving information verbally in prior meetings.
