                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0161n.06

                                           No. 10-3980

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED

MARYGENE BALDWIN,                           )                                     Feb 08, 2012
                                            )                               LEONARD GREEN, Clerk
              Plaintiff-Appellant,          )
                                            )
v.                                          )
                                            )               ON APPEAL FROM THE
WRIGHT PATTERSON AIR FORCE BASE, )                          UNITED STATES DISTRICT
et al.                                      )               COURT FOR THE SOUTHERN
                                            )               DISTRICT OF OHIO
              Defendants,                   )
                                            )
and                                         )
                                            )
MICHAEL WYNNE, Secretary, Department of )
the Air Force, Department of Defense United )
States of America,                          )
                                            )
              Defendant-Appellee.           )



BEFORE: SUHRHEINRICH, SUTTON and COOK, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. African American MaryGene Baldwin sued for gender,

age, and race discrimination after Defendant Wright Patterson Air Force Base (WPAFB) (1) declined

to promote her; and (2) assigned her to be a standby door guard at a time she was already scheduled

to attend a class that was a precondition of future promotion. Finding that she failed to present

evidence that WPAFB’s proffered business justification for her non-promotion was pretextual, and

that she failed to demonstrate that the scheduling of her door guard duty amounted to an adverse


                                                1
employment action, the district court granted WPAFB’s motion for summary judgment. We

AFFIRM.

                                         I. Background

       WPAFB hired Baldwin as a GS-9/12 civil service employee in 1981.1 In 1983, Baldwin

began serving WPAFB as a volunteer Equal Employment Opportunity (EEO) Counselor, a collateral

duty she held until the use of all volunteer counselors was discontinued in 2008. By 1985, Baldwin

had been promoted to GS-12. Baldwin was still serving as a GS-12 when Ms. Michelle Corcoran

became her supervisor in the Spring of 2005.

                               A. August 2005 Non-Promotion

       Shortly after Corcoran’s transfer into Baldwin’s division, Corcoran announced she was filling

an open GS-13 position. Although Baldwin had been unsuccessful in seeking promotion to GS-13

roles in the past, Corcoran encouraged her to apply. There were twenty-seven qualified applicants

for the position. Twelve, including Baldwin, were GS-12s eligible for promotion. Fifteen were

existing GS-13s seeking a position transfer.

       Using a pre-printed score sheet, Corcoran ascribed each candidate points for their education

and experiences relative to the principal functions of the GS-13 position. Baldwin earned a base

score of fifty-seven points, which Corcoran reduced by three points for Baldwin’s consistently

declining performance reviews. Faith Heckler, the chosen candidate, earned a base score of sixty-

seven points. Corcoran increased Heckler’s base score by thirteen points for her experience as a

temporary GS-13 (three points) and her partial-completion of Air Command and Staff College (ten



       1
        The term “GS” refers to the General Schedule, the typical pay scale used for U.S. civilian
employees.

                                                2
points). Thus, Heckler’s score exceeded Baldwin’s at the base and adjusted levels. Heckler is

younger than Baldwin and is Caucasian.

       Ms. Heckler’s selection was announced on August 1, 2005. Baldwin admits she did not

initially believe the decision was discriminatory. Her perception changed, however, after Stephanie

Lee from the WPAFB Employee Relations Office allegedly explained why Baldwin had not been

chosen. Baldwin says Lee told her that Corcoran did not promote Baldwin because she neither had

a master’s degree nor professional military education. Baldwin, in fact, has a master’s degree in

elementary education and completed Air Command and Staff College. The inconsistencies between

her qualifications and Corcoran’s alleged reason for her non-promotion caused Baldwin to believe

that Corcoran disregarded her credentials when she completed the candidates’ score sheets, and that

the decision not to promote her was discriminatory.

       Following her conversation with Lee, Baldwin attempted to file a complaint with the EEO

office. Baldwin’s Initial Counseling Information Form, dated October 3, 2005, certifies that she first

contacted an EEO Counselor concerning her non-promotion on September 21, 2005.2 As Baldwin

waited more than 45 days after learning of her non-promotion to contact the EEO Office, no

investigation was conducted and Baldwin’s claim was dismissed as untimely under 29 C.F.R. §

1614.107(a)(2).

                                   B. Door Guard Assignment

       In late September, after Baldwin’s non-promotion and the EEO office’s dismissal of her

discrimination complaint, Baldwin’s division became required to submit a list of employees who


       2
           Baldwin now disputes that she waited until September 21, 2005 to contact an EEO
Counselor, claiming that she spoke with a Counselor over the phone on September 15, 2005 but was
told the two could not meet until six days later.

                                                  3
would stand guard at their building’s doorways in case of a heightened security alert or exercise.

Corcoran scheduled Baldwin as a standby guard weekday mornings from 6:00 a.m. to 8:00 a.m.

Baldwin raised her displeasure with the potential conflict between this duty and an English course

Corcoran had “insisted” Baldwin take as a condition of future promotion. The class was taught two

days a week from 8:00 a.m. to 10:00 a.m. According to Baldwin, Corcoran responded that the

conflict was “not her concern” and subsequently threatened Baldwin with charges of insubordination,

up to and including termination, for raising the issue.

       Baldwin promptly filed an EEO complaint, alleging that Corcoran’s scheduling of her door

guard duties and subsequent threat of insubordination was discriminatory. Nonetheless, Baldwin

admitted in an affidavit to the EEO Investigator that she filed the complaint with the sole purpose

of making the EEO Office investigate her time-barred failure-to-promote claim. She also conceded

that the door guard duty was merely an obligation to be on standby, and that it had not actually

conflicted with her class schedule. Not surprisingly, the EEO Office dismissed Baldwin’s complaint.

       Following the dismissal of her EEO complaint, Baldwin brought suit against WPAFB in the

Federal District Court for the Southern District of Ohio. The Magistrate issued a Report and

Recommendation (R&R) finding that, among the eight claims raised in her complaint, only

Baldwin’s aforementioned claims of gender, age, and race discrimination regarding her non-

promotion and the scheduling of her door guard duties were properly presented for adjudication. The

district court adopted the Magistrate’s R&R and full discovery was conducted on Baldwin’s

discrimination claims. At the close of discovery, WPAFB moved for summary judgment. Finding

that Baldwin’s non-selection claim had not been administratively exhausted and, in any event, both




                                                 4
claims failed on the merits, the district court granted WPAFB’s motion and entered judgment in its

favor on July 7, 2010. Baldwin appeals the district court’s order.

                                             II. Analysis

       We review de novo a district court’s entry of summary judgement. Gallagher v. Croghan

Colonial Bank, 89 F.3d 275, 276-77 (6th Cir. 1996) (citing Harrow Prods., Inc. v. Liberty Mut. Ins.

Co., 64 F.3d 1015, 1019 (6th Cir. 1995)). Summary judgment is proper if there is no genuine issue

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

R. Civ. P. 56(c).

       Before us is Baldwin’s allegation that WPAFB discriminated against her based on her age

and race, in violation of Ohio and federal law.3 For some types of claims, the Age Discrimination

in Employment Act (ADEA) and Title VII require “materially different” analyses. Gross v. FBL

Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343, 2348 (2009). However, where a plaintiff

presents only circumstantial evidence of discrimination, our analysis under the two statutes largely

overlaps. See Geiger v. Tower Automotive, 579 F3d 614, 622 (6th cir. 2009).             Moreover, the

elements of discrimination are the same under Ohio law and Title VII. Graham v. Best Buy Stores,

L.P., 298 F. App’x 487, 493 n.5 (6th Cir. 2008) (internal citations omitted). Thus, one standard

applies to all of Baldwin’s claims.

        Baldwin admits she lacks direct evidence of WPAFB’s alleged discrimination. Accordingly,

we apply the familiar McDonnell-Douglas burden shifting framework. See McDonnell-Douglas

Corp. v. Green, 411 U.S. 792 (1973). Under this framework, Baldwin must first present a prima


       3
          Baldwin has presented no evidence of gender discrimination and does not allude to it in
her brief. Accordingly, we, like the district court, understand her to have forfeited this aspect of her
claim.

                                                   5
facie case for discrimination by showing that: (1) she belongs to a protected class; (2) she was

qualified for the job at issue; (3) she suffered an adverse employment action; and (4) she was treated

differently than similarly situated non-protected person(s). See, e.g., id. at 802 (Title VII);

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998) (ADEA); Policastro

v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th Cir. 2002) (citing Mitchell v. Toledo Hosp., 964

F.2d 577, 582 (6th Cir. 1992) (Title VII)). Once Baldwin makes her prima facie case, the burden

of production shifts to WPAFB to proffer a legitimate, nondiscriminatory reason for the adverse

employment action. Id. Thereafter, the burden returns to Baldwin to show that WPAFB’s

explanation is pretextual by showing: “(1) that the proffered reasons had no basis in fact, (2) that the

proffered reasons did not actually motivate [its] action, or (3) that they were insufficient to motivate

[its] action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). “The key question is

always whether, under the particular facts and context of the case at hand, the plaintiff has presented

sufficient evidence that he or she suffered an adverse employment action under circumstances which

give rise to an inference of unlawful discrimination.” Macy v. Hopkins County Sch. Bd. of Educ.,

484 F.3d 357, 365 (6th Cir. 2007) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981)).

                                 A. August 2005 Non-Promotion

         Baldwin contends that the district court erred in finding that her August, 2005 non-selection

claim was not timely filed with the EEO Office and, therefore, was not administratively exhausted.

She also claims the court erred in concluding that she failed to demonstrate pretext. Because we

agree that Baldwin’s non-selection claim fails on the merits, we need not address the exhaustion

issue.


                                                   6
       WPAFB concedes that Baldwin has established a prima facie case for race and age

discrimination in her non-selection for the August, 2005 promotion. In turn, WPAFB proffers a

legitimate business purpose for the adverse employment action, i.e., that Heckler’s score sheet

demonstrated that she was more qualified than Baldwin.

       Baldwin claims that WPAFB’s purported reliance on the candidates’ score sheets is

pretextual because (1) Corcoran incorrectly calculated her base score and (2) then compounded this

intentional error by discriminatorily removing points from Baldwin’s score and adding points to

Heckler’s score. In essence, Baldwin claims that the supposedly objective score sheet was used as

a tool to facilitate discrimination. We disagree.

                                    1. Base Score Calculation

       To begin, Baldwin’s base score was not incorrectly calculated. She raises three reasons why

it was, and we address these in turn.4

       First, Baldwin claims she was entitled to five additional points for a Management Leadership

Training Course. During her deposition, she identified the course as “EEO training 2000.” Hardly

a unique qualification, “EEO training 2000” is a class required of all pre-2000 Air Force employees

and one for which neither she nor Heckler received credit. Had Baldwin received credit for this

course, Heckler would have as well; accordingly, Corcoran’s failure to award Baldwin the

challenged five points had no detrimental affect on her candidacy.




       4
          Though she claimed the precipitant of her EEO filing was Corcoran’s failure to credit her
master’s degree and professional military education, she clearly received the prescribed twenty points
for her master’s degree in elementary education, plus an additional ten points for her training at Air
Command and Staff College. Baldwin does not challenge this point allocation on appeal.

                                                    7
        Baldwin next alleges she was denied five points for a Finance and Budget course she

completed. She does not dispute that the score sheets limited credit for this and similar courses to

those taken within the last ten years. Nevertheless, she has identified only classes taken in the 1980s.

Clearly, her purported qualification falls outside of the category parameters and Corcoran did not

wrongly deny her credit for it.

        Baldwin argues that discrimination can be subtle, and intimated that we might infer it from

the fact that the relevant ten-year limitation was added in Corcoran’s handwriting, rather than pre-

printed on the score sheets themselves. While such an annotation may be troubling in a different

context, it had no discriminatory effect in this case. First, it was written on both candidates’ score

sheets. Second, Baldwin has not alleged that the restrictions had a disparate impact on her and

Heckler’s candidacy, such as by showing that unlike Baldwin, Heckler had not taken any of the listed

classes within the last ten years. Third, Baldwin’s argument is a double-edged sword. Baldwin

earned five points for her relevant experience as a GS-12 in a category limited, but for Corcoran’s

handwritten addition of “or GS-12,” to candidates (such as Heckler) who had previously served as

a GS-13.

        Finally, Baldwin claims she was entitled to one point for each of two performance awards

she earned in 1986 and 1989. Like her Finance and Budget course, however, Baldwin’s awards are

simply too dated to have warranted credit on her GS-13 job application. Baldwin does not contest

that the printed portion of the score sheet expressly limits credit to awards earned within the five

years prior to application, yet claims she is entitled to points for awards earned more than three times

that long ago. These two notions oppose each other, and Corcoran was again correct to withhold the

relevant points from Baldwin’s score.


                                                   8
                             2. Discretionary Score Adjustments

       On her second argument of pretext, Baldwin contends that Corcoran arbitrarily and

discriminatorily added and removed points from Baldwin’s and Heckler’s base scores, further

increasing the gap between the two candidates. Baldwin is correct that Corcoran reduced her score

by three points for declining performance appraisals and raised Heckler’s score by thirteen points,

three for her experience serving as a temporary GS-13 and ten for being in the process of completing

Air Command and Staff College. Nevertheless, these adjustments do not show discrimination.

       Although Baldwin appropriately observes that a purely discretionary determination made

apart from and irrespective of objective criteria might not be reasonably construed as a “legitimate

business purpose” for an employer’s adverse employment action, that principle does not apply here.

First, the additional criteria used by Corcoran to adjust the candidates’ base scores, while not pre-

printed on the score sheet itself, reflected legitimate considerations in Corcoran’s decision, e.g.,

weighing candidates’ past performance and considering relevant experience serving as a GS-13.

More importantly, the adjustments were irrelevant to the outcome of the competition. Heckler’s

score was higher than Baldwin’s at the base and adjusted levels. Accordingly, even if Corcoran’s

modifications were inappropriate, they had no bearing on Baldwin’s non-promotion.

                                 B. Door Guard Assignment

       Baldwin’s second claim is that Corcoran discriminated against her by forcing her to take an

English course as a condition of promotion but maliciously assigning her to door guard duty at the

same time so that she could not complete both requirements, potentially subjecting her to a poor

evaluation and insubordination discipline up to and including termination. Again, we disagree.




                                                 9
       As a preliminary matter, Baldwin admits she alleged her door guard schedule was

discriminatory only to circumvent the forty-five-day limitation on her failure-to-promote claim. In

any event, Baldwin fails to show how Corcoran’s scheduling of her job duties was an adverse

employment action. See Kocsis v. Multi-Care Management., Inc., 97 F.3d 876, 885 (6th Cir. 1996).

She concedes that her door guard schedule was for standby purposes only, and that this contingent

duty never actually conflicted with her class attendance. We concur with the district court that

Baldwin “has simply presented unsupported allegations rooted in speculation” and that these

allegations cannot withstand summary judgment.

                                         III. Conclusion

       For the reasons stated, we AFFIRM the judgment of the district court.




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