                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0493n.06

                                            No. 12-3931

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                      FILED
                                                                                      Jul 08, 2014
                                                                                 DEBORAH S. HUNT, Clerk
GRAHAM LYNCH,                                              )
                                                           )
       Plaintiff-Appellant,                                )       ON APPEAL FROM THE
                                                           )       UNITED STATES DISTRICT
               v.                                          )       COURT FOR THE NORTHERN
                                                           )       DISTRICT OF OHIO
ITT EDUCATIONAL SERVICES, INC., aka ITT                    )
Technical Institute; TONY DAROSA,                          )
                                                           )
       Defendants-Appellees.                               )
                                                           )



BEFORE: DAUGHTREY, McKEAGUE, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Plaintiff Graham Lynch appeals the district court’s grant of summary judgment in favor of

defendants ITT Educational Services (“ITT”) and Tony Darosa in this case involving claims of age

and race discrimination under state and federal law. The district court determined that Lynch failed

to establish a prima facie case of employment discrimination because there is no evidence that ITT

treated a similarly situated employee outside the protected class more favorably. Further, the district

court determined that Lynch failed to show that the articulated reason for his termination was

pretextual. For the following reasons, we affirm.
No. 12-3931
Lynch v. ITT Educ. Srvs., Inc., et al.


                                                   I.

       ITT is a group of colleges that provides higher education to students in specific technical

areas of vocation. The Accrediting Council for Independent Colleges and Schools (“ACICS”) sets

minimum requirements that must be met for the college or school to obtain and maintain

accreditation. For associate’s degree programs, ACICS requires instructors teaching courses other

than general education to hold a bachelor’s degree and “be assigned based on their major and minor

academic preparation and/or related experience.” Nonetheless, ACICS encourages colleges such

as ITT to impose more stringent faculty qualification requirements, and institutions are expected to

comply with standards even as they change over time. Allegedly as a measure to avoid jeopardizing

its accreditation, ITT requires all instructors to hold a bachelor’s degree in a “related area” to their

teaching subject and have earned at least fifteen semester hours in “the subject” of their teaching.

       In June 2006, ITT hired Lynch as an adjunct instructor at its Warrensville Heights campus

to teach courses in information technology (“IT”), including computer programming, network

database design, and operating systems. Lynch is an African-American and was born in 1939. He

holds a bachelor’s degree in Civil Engineering from Ohio University and an MBA from Pepperdine

University. His education did not include any IT courses specifically, but he used advanced

computing to complete his MBA coursework, such as operations research, forecasting models,

statistical inferences and correlations, and regression analyses.

       Lynch’s work experience relating to computing is extensive. While in the United States Air

Force performing work as a civil engineer, Lynch “had a couple of courses in computer



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programming and how to interact with the base supply computer.” He also “received certificates

on how to use the computer system to plan construction and maintenance and planning using

program evaluation review techniques and critical path methods.” In addition, Lynch underwent

computer training while working as a marketing representative for IBM. During his employment

with IBM, Lynch “help[ed] customers get their computers up and running and programmed.” As

a data processing manager at Albert A. Webb Associates, Lynch “was responsible for the computing

systems and all the software and everything associated with computing.” While working for the

Eastern Michigan Water District, he set up programming for sending out utility bills, water analysis,

land planning, and payroll. While working for a manufacturer of precision instruments and gun

sights for strategic weapons, Lynch managed and implemented the business, accounting, payroll,

and financial management aspects of the company’s computer system at corporate headquarters.

In addition to installing the software and building the computer system from the ground up, Lynch

trained accountants and other staff on how to use and control the computing system. His other past

employers include the County of Riverside and Science Application International Corporation; both

positions required extensive computer knowledge. As far as teaching experience, Lynch has been

an adjunct instructor in the areas of IT, computer science, and business at Riverside Community

College, Chapman, and Brown Mackie College.

       Nonetheless, Lynch admitted at his deposition that a bachelor’s degree in Civil Engineering

is not related to IT: “[IT] has to do with all the realm of computers, networks, [and] multi media”

and “civil engineering has to do with construction, dams, roads, [and] highways.” He also admitted



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that he has not earned fifteen semester hours in the subject of IT. Thus, he acknowledged that he

does not meet the requirements to teach IT at ITT. Yet, as Lynch explained, “I was still hired.

Somebody found me fit.”

       Allegedly, Lynch’s lack of credentials was not discovered until nearly two years after his

hire during a routine audit in preparation for a visit and accreditation review by ACICS. At the time,

Ann Contiguglia was the school director of the Warrensville Heights campus, and Ronald

McClendon was the dean. McClendon, who is African-American, recalls Contiguglia approaching

him with a complaint from a student that Lynch had made racial remarks in the classroom.

McClendon spoke with Lynch and the student, and to McClendon’s satisfaction, the claim was

baseless. Nonetheless, Contiguglia maintained that “[h]e’s got to go.” Asked whether he believed

age or race played a factor in Lynch’s termination, McClendon stated: “I don’t know specifically

that race or age was a factor in the way that [Contiguglia] treated him, but I do believe that [she] had

a certain set of behaviors and demeanor with black male faculty that would cause me to believe that

she either took us very much for granted or that she didn’t value us very much.” Asked why he

thought Contiguglia undervalued black male faculty, McClendon said that she talked

“condescendingly, aggressively, and at times with flirtation” to them. In McClendon’s opinion,

Contiguglia treated black males differently.

       Ronald Lewellen replaced McClendon as dean in October 2008. Contiguglia told Lewellen,

as she had told McClendon, that Lynch had to go. Asked whether he had ever heard Contiguglia

make negative comments regarding Lynch’s age or race, Lewellen testified, “[m]aybe some



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comments about his age, but I don’t recall . . . anything that I could say that’s definitely racial.”

Nevertheless, Lewellen believes that age and race played a factor in Lynch’s termination and that

Contiguglia used Lynch’s alleged lack of qualifications as an excuse to fire him. He recalls rumors

going around that Contiguglia “didn’t particularly care for [Lynch]” and had “some professional

jealousy in regard to [his] positive relationships with students.” According to Lewellen, Contiguglia

“was not respected or liked very much by professionals” because of her fiery temper. Lewellen

thinks that Contiguglia’s decision to terminate Lynch was personal as opposed to professional.

       But Contiguglia was not the final decision-maker. Contiguglia reported to Darosa, the

district manager, who she claims would have made the decision to terminate Lynch. Further,

Contiguglia was herself fired on November 12, 2008, several days before Lynch’s termination.

       According to Darosa, he decided to terminate Lynch because he did not meet the job

requirements imposed by ITT or ACICS. He discovered Lynch’s lack of qualifications after being

approached by the dean and director of the Warrensville Heights campus during a visit. No other

employees falling short of the requirements were brought to Darosa’s attention. Darosa reviewed

Lynch’s resume, saw that he did not meet the job requirements, and concluded that a mistake must

have been made in hiring him in the first place. During a meeting with Lynch, Darosa asked Lynch

if there was anything missing on his resume that would qualify him to teach IT. Lynch thought that

his experience should be enough, but he admitted that his academic transcripts did not qualify him

to teach IT. No comment was made about Lynch’s age or race during the meeting. Indeed, Lynch




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could not identify any comment made about his age or race during the entire course of his

employment with ITT.

       Following this meeting, Darosa talked with the national director, Gary Carlson, and the HR

department. Carlson agreed with Darosa that Lynch was not qualified from the time he was first

hired. According to Carlson, even though Lynch taught for two years and received great ratings,

it was proper to terminate him because he did not meet the qualifications to be an IT instructor. The

HR department inquired whether Lynch was qualified to teach any other courses. According to

Darosa, at the time, there were no available positions that Lynch was qualified to teach. Although

Lynch claims that he was qualified to teach business, he did not request to be transferred, and there

is no evidence that such an opening existed. Ultimately, Darosa recommended Lynch’s termination,

and the HR department issued a termination letter dated November 17, 2008, which provides:

“After a review of your academic qualifications we have determined that you do not meet the

minimum qualifications to teach in your current subject matter area.”

       Lynch identifies John Donnenwirth as a similarly situated individual whom ITT retained.

Donnenwirth, who also teaches IT, is white and was born in 1960, making him twenty-one years

younger than Lynch. Donnenwirth earned a bachelor’s degree in Mathematics from Ohio State

University and a master’s degree in Business Administration from Dominican University. Despite

that neither Mathematics nor Business Administration is related to IT, it was never determined that

Donnenwirth was unqualified to teach IT. Unlike Lynch, however, Donnenwirth has earned fifteen

semester hours in the subject of IT.



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       Lynch filed a complaint in the district court against ITT and Darosa, raising claims of age

and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Chapter 4112 of

the Ohio Revised Code. ITT and Darosa moved for summary judgment, seeking dismissal of all of

Lynch’s claims. The district court granted the motion. It ruled that Lynch failed to establish the

fourth prima facie element, reasoning that Donnenwirth is not similarly situated because he meets

the coursework requirement and has several professional certifications in the area of his teaching.

It also found that Lynch failed to demonstrate pretext. According to the district court, Lynch did

not satisfy the requirements of the job description, and the only evidence of discriminatory animus

that he offered was mere personal belief, conjecture, and speculation. This appeal followed.

                                                II.

       We review de novo a district court’s grant of summary judgment. Geiger v. Tower Auto.,

579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper when, viewing the evidence in the

light most favorable to the nonmoving party, there is no genuine issue as to any material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); CareToLive v.

FDA, 631 F.3d 336, 340 (6th Cir. 2011).

                                                A.

       For claims based on circumstantial evidence, a plaintiff alleging that his termination was

discriminatory must establish the following four elements: (1) he is a member of a protected class;

(2) he is qualified for the position in question; (3) he suffered an adverse employment action; and



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(4) he was treated differently than a similarly situated employee outside the protected class.

Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008); see McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). The parties agree that Lynch has established the first three

elements but dispute whether there exists a genuine issue of material fact on the fourth.

        A court’s formulation of the similarly situated inquiry should not be exceedingly narrow.

Jackson v. Fedex Corporate Servs., 518 F.3d 388, 396 (6th Cir. 2008). We consider individuals to

be similarly situated if they are similar (though not identical) in all relevant respects. See

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). Our task is to make

an individualized determination of which factors are relevant based on the factual context of the

case. Id. at 352.

        Given the factual context of this case, we consider it relevant that Lynch is an instructor at

ITT and has neither a bachelor’s degree in a related area nor fifteen semester hours in the subject

of his teaching. Thus, Lynch must identify a younger, Caucasian instructor who has neither a

bachelor’s degree in a related area nor fifteen semester hours in the subject of his or her teaching but

who was retained. For this purpose, Lynch points to Donnenwirth, a younger, white instructor

whom ITT retained.1 Lynch is correct that Donnenwirth’s bachelor’s degree in Mathematics is not

related to IT, just as Lynch’s bachelor’s degree in Civil Engineering is not related to IT. However,

Donnenwirth has earned fifteen semester hours in the subject of IT, whereas Lynch has not. Thus,




              1
                Although Donnenwirth happens to teach IT, the same subject that Lynch taught, we do not
      consider this to be a relevant factor for purposes of the similarly situated inquiry.

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while Donnenwirth may be similarly situated in some relevant respects, he is not similarly situated

in all relevant respects.

        Lynch argues that this analysis is contrary to Jackson, where this court criticized the district

court’s narrow formulation of the similarly situated standard and blind adherence to the employer’s

position regarding which skills and qualifications were relevant. Jackson, 518 F.3d at 396–97.

Unlike the district court in Jackson, however, we have independently determined the relevant factors

after considering the factual context of this case. Moreover, we do not read Jackson to stand for the

inflexible position that an employer’s articulated reason for the termination can never be considered

in the similarly situated inquiry. Indeed, we have held that some overlap in the McDonnell Douglas

analysis is permissible. See White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 243 (6th Cir.

2005) (reviewing the plaintiff’s qualifications when analyzing the second and fourth prongs of the

prima facie case under McDonnell Douglas did not impermissibly conflate them). In this case,

defining similarly situated as having neither a bachelor’s degree in a related area nor fifteen semester

hours in the subject of his or her teaching is not overly narrow. Accordingly, we conclude that there

is no genuine issue as to any material fact that Lynch failed to establish the fourth element of his

prima facie case.2




               2
                 We decline to consider Lynch’s alternative argument, raised for the first time in this appeal, that
      he established the fourth element through evidence that he was replaced by someone outside the protected
      class. See J.C. Wyckoff & Assoc., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1489 (6th Cir. 1991).

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                                                  B.

       Even assuming that Lynch established a prima facie case, the burden of production would

shift to ITT and Darosa to articulate a legitimate nondiscriminatory reason for his termination.

Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir. 2004). Lynch concedes that ITT and Darosa satisfy

this burden. ITT and Darosa assert that Lynch was terminated because he lacks the qualifications

required by the job description to teach IT. The burden would then return to Lynch to show that the

proffered reason is merely a pretext for what is actually a discriminatory firing. Traditionally, this

showing can be made through evidence that: (1) the reason has no basis in fact; (2) the reason does

not actually motivate the adverse employment action; or (3) the reason is insufficient to explain the

adverse employment action. Upshaw v. Ford Motor Co., 576 F.3d 576, 586 (6th Cir. 2009). There

is also support for establishing pretext “by offering evidence that the employer’s proffered reason

. . . was never used in the past to discharge an employee.” Smith v. Chrysler Corp., 155 F.3d 799,

805–06 (6th Cir. 1998).

       Lynch first argues that the articulated reason for his termination has no basis in fact because

he does possess the necessary qualifications. Yet this directly contradicts Lynch’s own admission

that his bachelor’s degree is not related to IT and he has not earned fifteen semester hours of IT.

Further, on this record, we are unable to determine independently which courses listed on Lynch’s

transcript count or should count as credits in the subject of IT. And although Lynch focuses on the

fact that he was apparently deemed fully qualified to teach IT at the time of hire, this is not evidence

that the proffered reason for his termination has no basis in fact. Cf. Upshaw, 576 F.3d at 586



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(stating that “an admitted mistake . . . constitutes a legitimate nondiscriminatory reason”). Lynch

also points to alleged comments and actions by Contiguglia, which he argues show ageist and racial

animosity. But such comments and actions are not evidence that Lynch in fact meets the

requirements of the job description, though they could be relevant to another method of proving

pretext. Similarly, the opinions of McClendon and Lewellen that Lynch is sufficiently qualified is

not evidence that Lynch in fact holds a bachelor’s degree in an area related to IT and has earned

fifteen semester hours of IT. Thus, Lynch has failed to demonstrate pretext under the first method.

       Second, Lynch argues that the proffered reason did not actually motivate his termination.

As evidence of this, he claims that the reason for his termination has shifted over the course of this

litigation. But the record reflects, and Lynch previously admitted, that the proffered reason has

always been that he failed to meet the requirements of the job description. Lynch also claims that

comments made by Contiguglia suggest that his termination was actually motivated by age and race.

Contiguglia’s comments, however, were neither ageist nor racist. Indeed, none of the individuals

deposed could recall Contiguglia, or any employee for that matter, ever making a remark relating

to Lynch’s age or race. Accordingly, Lynch has failed to demonstrate pretext under the second

method.

       Third, Lynch argues that the proffered reason is insufficient to explain his termination

because (1) Donnenwirth is similarly situated but was retained, and (2) ITT failed to transfer Lynch

to an open position for which he was qualified. These arguments likewise fail. For the reasons

stated above, Donnenwirth is not similarly situated to Lynch. Further, Lynch has offered no



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evidence, aside from conjecture, that an open position into which he could be transferred existed.

Thus, he has not demonstrated pretext under the third method.

       Lynch last argues that the proffered reason was never used in the past to discharge an

employee. See Smith, 155 F.3d at 805–06. However, ITT offered evidence that it hired Gary

Abramowski but later terminated him upon discovery that his degree was not from an accredited

university as required by the job description. Therefore, Lynch is not the only person who has been

fired for failure to meet the requirements of the job description. And although Abramowski was

terminated after Lynch, as the district court properly reasoned, “his termination occurred well before

the commencement of this law suit and there is no indication that this case influenced that decision

in any way.” Accordingly, under any method, there is no genuine issue as to any material fact that

Lynch has failed to demonstrate pretext.

                                                 III.

       For these reasons, we affirm the district court’s grant of summary judgment.




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MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting.

       Because the record on appeal establishes genuine disputes related to several highly material

facts – including what turned out to be the dispositive issues of fact in this case – summary

judgment was improperly granted against the plaintiff, Graham Lynch, and in favor of the

defendants, ITT Technical Institute, Inc., and Tony Darosa. Even a superficial reading of the

evidence reveals that crucial errors were made by the district court, both by making inappropriate

findings of fact and misapplying relevant law. Given these mistakes of law and the existence of

disputed fact questions that should have gone to a jury, the summary judgment order should not be

sustained. From my colleagues’ decision to the contrary, I respectfully but emphatically dissent.

       In affirming the district court, the majority rests its opinion on the same crabbed, and

frequently incorrect, facts recited in the district court’s decision – many of them distorted because

the district court plainly failed to construe them in the light most favorable to the plaintiff, the

fundamental legal standard in deciding a defendant’s motion for summary judgment. See, e.g.,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the facts were as

straightforward as those set out in the majority opinion, the result they reach would be as easily

substantiated. In my judgment, they simply are not.

       Perhaps the most profound error in the majority’s analysis is its conclusion that in order to

“avoid jeopardizing its accreditation, ITT require[d] all instructors to hold a bachelor’s degree in a

‘related area’ to their teaching subject and to have earned at least fifteen semester hours in ‘the

subject’ of their teaching.” Thus it follows, also according to the majority, that because Lynch had



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“neither a bachelor’s degree in a related area nor fifteen semester hours in [information technology

or IT,] the subject of his . . . teaching,” he was not qualified to teach at ITT and was properly subject

to termination. And, according to the majority, Lynch could not make out a prima facie case of

discrimination because his designated comparator, John Donnenwirth, was qualified to teach at ITT,

given that he had completed 15 semester hours in IT and, thus, was not similarly situated to Lynch.

Finally, the majority posits that even if Lynch could establish a prima facie case, he could not rebut

ITT’s legitimate business reason for his termination, i.e., his lack of qualifications to teach IT.

        As the discussion that follows will show, however, there was at least a dispute of fact about

all of these propositions, and, in some instances, no basis in fact at all to support them. For example,

ITT’s retention of Lynch as an instructor could not have jeopardized the school’s accreditation,

because the faculty standards applied to the instructional positions at ITT by its accrediting body,

the Accrediting Council for Independent Colleges and Schools (ACICS), did not require either a

“degree in a related field” or “fifteen hours in the area of teaching” to qualify in Lynch’s field of

instruction. Instead, the ACICS standards provided that instructors teaching courses such as IT

“shall hold bachelor’s degrees at a minimum and shall be assigned based on their major and minor

academic preparation and/or related experience.” (Emphasis added.) Indeed, even the requirement

of a bachelor’s degree was subject to an exception for “instructors who have demonstrable current

exceptional professional level experience in the assigned field.” Moreover, the ACICS had

inspected Lynch’s credentials on an individual basis in 2007 and registered no objection to his

continuation as an IT instructor at ITT’s facility in Warrensville Heights, Ohio. And, finally, John



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Donnenwirth’s qualifications to teach IT were considered “questionable” even before Lynch’s

credentials came under scrutiny, but Donnenwirth’s qualifications were parallel to Lynch’s, making

him a completely adequate comparator in this case. The only dissimilarities between Lynch and

Donnenwirth were age (and, thus, the relative length of their professional experience) and race.

       What difference does it make to the outcome here that the district court got many of the

material facts wrong and failed to recognize the significance of the disputed facts? The answer is

simple: an accurate view of the record, taking the plaintiff’s evidence and the inferences derived

from that evidence as true, fully supports the existence of a prima facie case and, at the same time,

demonstrates the pretextual nature of the defendants’ articulated rationale for Lynch’s termination.

What is before us is a case that should have been submitted to a jury, as the record plainly shows.

       Indeed, most of the facts set out in the majority opinion support a result contrary to the one

reached by the district court. Those facts reflect that Lynch was hired in 2006 as an adjunct (part-

time) instructor at ITT’s facility in Warrensville Heights and promoted to full-time status within six

months. He was 67 at the time, having initially retired after a remarkable career in technology that

had spanned some four decades and began in 1962, when Lynch graduated from Ohio University

with a bachelor’s degree in civil engineering. Following graduation, he was appointed to the United

States Air Force as a second lieutenant and assigned to systems engineering, where he first

encountered computers and was engaged in “implement[ing computer] application for base civil

engineering functions.” Fascinated by computers, Lynch decided to make this new field his life’s

work. As a result, he left the military in 1968 with the rank of captain and was hired as a manager



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at IBM during the early years of its computer development and sales. There his duties as a “systems

engineer” included “help[ing] clients program and set up their computing systems.” Working in the

burgeoning IT field, Lynch also picked up wide experience, from data processing to the design of

technical networks. Ultimately, he became the head of information technology systems for San

Diego County, California, the eighth largest urban area in the country. Along the way, Lynch

acquired an MBA from Pepperdine University and taught training courses in information technology

in the military and in industry. He also taught academic courses in IT at Chapman University (a

four-year institution), at Riverside Community College in California, and at Brown-Mackie, a

technical/vocational school in Ohio.      During his teaching career, Lynch taught computer

programming, systems design, and networking – all before becoming an instructor at ITT. The

majority concedes that “Lynch’s work experience relating to computing is extensive” but fails to

recognize that the combination of a bachelor’s degree and his “extensive” IT experience was

sufficient to satisfy ACICS’s accreditation standards.

       At ITT, Lynch’s performance reviews were consistently above average, and he was a favorite

with the IT students, many of whom were African-American – as was Lynch. At the time of his

termination from ITT, he was, in fact, the only full-time African-American instructor on the faculty.

       The beginning of the end of his tenure started with a purported “rumor” that he had made

“race” comments in class, as reported to Ronald McClendon, the dean of students (the highest

academic position on campus), by Ann Contiguglia, who was the school’s director (the highest

administrative position). McClendon investigated and could find no basis for Contiguglia’s report,



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but he may not have been surprised by it – according to his testimony, Contiguglia was known to

“undervalue” African-America staff members, speaking condescendingly to them and treating them

differently from other ITT employees. She made her position on Lynch’s continued employment

clear to McClendon, insisting that “[h]e’s got to go,” although the record reflects no basis for her

assertion. There is, for example, no evidence that she considered Lynch unqualified to teach

because of his academic record. McClendon, on the other hand, considered Lynch an asset to ITT,

both because of his academic credentials and his many decades of experience in the “real world.”

       Eventually, McClendon became frustrated with working under Ann Contiguglia and resigned

his position as dean. He was replaced by Ronald Lewellen, who also ran head on into Contiguglia’s

campaign to have Lynch fired. Almost immediately, Lewellen had the impression that her

motivation was “more personal than professional” and became convinced that age as well as race

discrimination was part of the dynamic. Lewellen could not rationalize Contiguglia’s animosity any

other way, because he considered Lynch fully qualified as an IT instructor.

       As previously noted, Lynch’s credentials had been individually scrutinized by ACICS, which

required annual reports from, and made periodic on-site visits to, post-secondary educational

institutions seeking to maintain accreditation. As part of the process, ACICS officials routinely

examined the academic credentials of each faculty member, but they were unable to review Lynch’s

file for ITT’s February 2007 report because his university transcripts were missing from the records

submitted by ITT. As a result, ACICS declined to find ITT in compliance with its accreditation

standards. Lynch’s transcripts were soon located on file at ITT’s headquarters in Carmel, Indiana,



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and forwarded to the ACICS office for inspection. No questions about Lynch’s academic credentials

were raised as a result, indicating that Lynch met the standards set by ACICS for teaching IT. Those

credentials were, of course, the same at the time Lynch was terminated by ITT, except that by then

he also had two years of successful teaching there.

        Nor had any questions arisen about his credentials to teach when he was hired in 2006. He

was interviewed by Henry Jones, Chair of the IT Department at ITT, and Rebecca Browning, who

was then the academic dean at the Warrensville Heights campus. Jones filled out the evaluation

form used in ITT’s hiring process, characterizing Lynch as “exceptional” in every one of some

13 categories on the list – including “education and/or training” and “knowledge of work.” Jones

listed “experience, intelligence, [and] motivation” as the qualities that “make this applicant desirable

for the position” and ended the evaluation by noting that Lynch was “very impressive.” Indeed,

Jones later submitted an affidavit that read: “Mr. Lynch was fully qualified under the criteria of ITT

in the area of Informational Technology. At no time did I question Mr. Lynch’s qualifications, or

anyone else to my knowledge questioned Mr. Lynch’s qualifications.” (Emphasis added.)

        There is no dispute that, despite his myriad credentials to teach, Lynch was abruptly

terminated from his position at ITT. There is, however, a major dispute about the reason for his

termination that impacts both his ability to establish a prima facie case of discrimination and his

ability to establish pretext on the part of ITT in terminating him. The evidence in the record at the

summary judgment stage reflects various explanations for Lynch’s departure, depending on whose

version is credited. Tony Darosa, the person who actually fired Lynch, testified that he alone made



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the decision to terminate. But his testimony concerning the basis for Lynch’s termination shifted

from one explanation to another, suggesting, if not establishing, pretext. See Cicero v. Borg-Warner

Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002) (“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.”); Thurman v. Yellow Freight

Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) (“An employer’s changing rationale for making an

adverse employment decision can be evidence of pretext.”).

       Darosa was an ITT district manager over 11 schools, with an office in Indiana. He visited

the Warrensville Heights campus to meet with the department chairs in mid-November 2008 and

told them that Lynch would be let go. But he also told them to “keep it a secret” until he came back

to Warrensville Heights at the end of the school term, which was two weeks away. Nevertheless,

out of respect for Lynch, at least two of the ITT department chairs told Lynch that he was about to

be fired, but not why – apparently because they had been given no reason. Lynch said that on the

day Darosa returned to campus, December 2, he was escorted to the director’s office by Ron

Lewellen, still the academic dean at that time, to meet with Darosa. But Lewellen did not intend to

stay and wanted no part in Lynch’s termination; instead, he left the room – as Lynch put it, “in

disgust” – slamming the door as he went out. Darosa then informed Lynch that he was being let go,

saying only, “[T]here’s nothing we can do. You are not qualified to teach the courses you are

teaching, period.” As Lynch later commented, “That was it.”



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       Indeed, that actually was it. In the meeting, Darosa did not elaborate on Lynch’s purported

lack of qualifications, nor did he suggest a way in which any deficiency could be remediated.

However, a “memo to file” from ITT’s “human resource partner,” Kim Hansen, dated almost a

month before Lynch was officially told of his termination, indicated that the campus was undergoing

a reduction in force, a process about which apparently none of the non-administrative staff at

Warrensville Heights knew. The memo indicated that Lynch had “been found to not meet the

minimum qualifications to teach in the subject area assigned as a full-time instructor” because he

“has a Bachelors [sic] degree in Electronics,” not IT. The memo concluded, “There is not an

opportunity for Mr. Lynch to teach full-time in Electronics but he will be offered the opportunity

to teach on [a part-time] basis or opt for severance.” Of course, the record shows clearly that

Lynch’s undergraduate degree was not in electronics, that he had never taught electronics, and that

he was not offered a part-time position of any kind when he was terminated as an IT instructor,

although by education he was qualified to teach business administration. Again, the record hints

strongly at pretext.

       Significantly, the memo-to-file was far from the only conflicting evidence concerning the

basis for Lynch’s dismissal. Darosa’s inability to stick to one explanation or another was

particularly confounding. He testified that in reaching the decision to fire Lynch, he had reviewed

only Lynch’s “source documents,” by which he meant “resume and transcripts” and nothing else –

including performance evaluations. Those teaching-performance reviews, Darosa maintained,

“wouldn’t necessarily determine whether someone is qualified to teach a course” because “an



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Lynch v. ITT Educ. Srvs., Inc., et al.


evaluation would simply . . . say [how] this person is doing, is performing at a certain level, but it

wouldn’t necessarily qualify someone to teach a course.” Asked if he took “experience in the field”

into consideration, as both the ACICS and the ITT standards permitted, Darosa responded,

“Absolutely, as long as it’s listed on the resume.” But perversely, he later maintained that he had

discounted Lynch’s years of real-world experience because his most recent work was as in

management, referring to Lynch’s position as Chief Information Officer of San Diego County and

as head of IT contract services for BP North America. These positions, Darosa postulated, “would

be too far removed from the lower level help desk person to be an effective [IT] instructor.” What

was needed, Darosa said, was entry-level experience, “hands-on first level experience that he would

be teaching our students.” But, of course, Lynch had picked up exactly that kind of experience in

the various positions he held as he rose to the top in the IT field. Darosa apparently considered

experience as a “lower level help desk person” to better equip an IT instructor than the years of

experience at every performance level that Lynch brought to the task.

       Lynch also had years of experience in the instruction of beginning students like those in his

classes at ITT. Surely his extensive teaching credentials qualified him as an IT instructor, Darosa

was asked. No, he insisted in response, the ACICS standards did not permit consideration of a

candidate’s teaching experience in determining qualifications to teach – even, apparently, when the

teaching experience was both extensive and in the same field. Such a standard would be thoroughly

ludicrous, if true. But, in this case, it was not true. Several of the academic-curriculum experts who

were deposed endorsed teaching experience as particularly relevant to one’s qualifications to teach,



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and at least one ITT document provided that in hiring instructors “teaching experience is preferred.”

       As for Donnenwirth, the comparator, he too lacked a bachelor’s degree in the field of IT,

having majored in mathematics. Donnenwirth maintained that because mathematics is the basis for

“computing,” he should be considered as having a degree in a “related field.” He also claimed to

have 15 hours in the field of IT, but the head of the IT department, Ron Lewellen, testified that

Donnenwirth did not have the necessary hours and had actually been hired on the basis of his work

experience. Lewellen also said that he considered Donnenwirth qualified to teach IT based on his

classroom performance and what Lewellen had seen of “his interaction with students.” Lewellen

considered Lynch qualified to teach IT on the same basis.

       According to Lewellen, Darosa had at one time questioned Donnenworth’s qualifications,

and Donnenwirth himself testified that “they were concerned that [he] didn’t have the academic

qualifications, . . . that [he] didn’t meet the ACICS qualifications to teach IT.” He was saved,

Donnenwith said, by his record of “work experience” and considered his colleague Lynch qualified

as an instructor on the same basis. The reason that both Lynch and Donnenwirth had to be judged

on experience rather than their academic background would certainly be apparent to a jury: when

Lynch entered engineering school in 1958, there was no field of study known as “information

technology.” Perhaps he might have amassed 15 hours in that field two decades later, but by that

time he was considered an expert in the burgeoning area and was actually teaching others, rather

than taking courses himself. Donnenwirth was in college in the early 1980s, in the early years of

“computer science,” but that was not his major field of study. One of the curriculum experts who



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was deposed was asked about substituting work experience for academic credentials in hiring

instructors. He used wind energy as an example: “Yes, th[ere] are new fields, but we do not limit

it. You may have a teacher who may not necessarily have a degree in a specific [new] field . . . [but

has] extraordinary professional experience [in it].” As wind energy is to college curriculum today,

so information technology was in the 1960s and 1970s.

       The only difference between Donnenwirth’s apparent security in his faculty position and

Lynch’s late-blooming lack of security was that Contiguglia never raised a question about

Donnenwirth’s qualifications to teach. On the other hand, she had campaigned to have Lynch

removed from the faculty, perhaps as part of a reduction in force as the human resources memo

suggested, and she succeeded in bringing about his termination. However, the record is replete with

evidence of her animus toward Lynch – animus that was evidently a reflection of her distaste for his

race and age. The record also establishes that Lynch was the only instructor that witnesses could

remember being fired.

       The legal standard for determining discrimination under Title VII and the Age

Discrimination in Employment Act is well-known. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-03 (1973). A plaintiff must first establish a prima facie case of discrimination, either

by direct evidence or indirectly by circumstantial evidence. To accomplish the latter, the plaintiff

must show that he or she (1) is a member of a protected class; (2) suffered an adverse employment

action; (3) was nevertheless qualified for the position; and (4) was replaced by someone outside the

class or was treated differently from similarly-situated employees who were not members of the



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protected class. Id. Once the plaintiff’s prima facie case is established, the burden falls on the

defendant to articulate a legitimate, non-discriminatory reason for the adverse action, and – at that

point – the burden shifts back to the plaintiff to show that the defendant’s articulated reason is a

pretext for discrimination. Id. at 803-04.

       There is no question that, under the McDonnell Douglas framework, Lynch was a member

of two protected classes based on his age and race. There is no question that he suffered an adverse

employment action. A full review of the record also establishes, as the district court found, that

Lynch was fully qualified for the position at issue or – at a minimum – that his qualification to teach

at ITT was a matter of disputed fact. Moreover, whether Lynch was treated differently from a

similarly-situated employee who was not a member of the protected classes was obviously disputed

and should have gone to the jury. We have held repeatedly that Title VII plaintiffs are “not required

to demonstrate an exact correlation between [themselves] and others similarly situated” but, instead,

“ha[ve] to show only that [they] and [their] proposed comparators were similar in all relevant

respects.” Bobo v. UPS, 665 F.3d 741, 751 (6th Cir. 2012). In this case, the record is replete with

evidence of Lynch and Donnenwirth’s “similarity in all relevant respects.”

       The claim of discrimination in this case cannot be brushed aside by a simple declaration that

Lynch was not qualified based on his “admission” while being deposed that he did not have the

requisite 15 semester hours of study in IT. The statement he made in this regard has been taken out

of context, both by the district court and by the majority here. Based on evidence in the record, the

jury could find either that Lynch did have the requisite 15 semester hours or their equivalent or that



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he was not required to have the 15 semester hours because he was fully qualified on the basis of

work experience in the field of IT.

        Indeed, when Darosa was forced to concede that, based on experience, Lynch met the ACICS

standards for teaching courses other than those in general education, he changed tactics and claimed

for the first time that ITT’s standards were higher that those necessary to achieve ACICS

accreditation and that Lynch did not meet the ITT standards. But this claim conflicted with Darosa’s

previous testimony that he had terminated Lynch because Lynch did not meet the ACICS

requirements, which put ITT at risk of losing its ACICS accreditation.

        Moreover, the claim regarding the heightened ITT standards was supported only by an

untitled job description form that met the ACICS requirements for teaching general education

courses but clearly did not fit the criteria necessary to teach “courses other than general education,”

such as IT. The critical difference between the two classifications was whether work experience

could be taken into account as a substitute for a related bachelor’s degree and 15 hours of course

work (no, in the case of general education teachers; yes, in the case of those teaching courses other

than general education). Allowance for work experience appears nowhere in the submitted job

description form. Obviously, a jury could find that the proffered form did not apply to IT

instructors.

        Thus, the issue comes down to proving the fourth prong of the McDonnell Douglas standard

and to resolving the matter of pretext. In my judgment, this case is one in which the same evidence

that establishes that fourth prong of Lynch’s prima facie case also satisfies Lynch’s burden of



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establishing pretext. It seems obvious that Lynch has satisfied the requirements in Manzer v.

Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994), overruled on other grounds

by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 179-80 (2009), by showing “that the proffered

reasons had no basis in fact,” given that Lynch did meet the ACICS/ITT standards for IT instructors,

and also that the reason given for termination “were insufficient to motivate discharge,” given that

Donnenwirth was similarly situated and was not terminated. But, at the very least, the record

establishes genuine issues of material fact that should prevent a grant of summary judgment and be

resolved by a jury.

       This circuit has developed an unfortunate practice of resolving the overwhelming majority

of civil rights cases that come before us by routinely affirming summary judgment granted to

defendants by the district courts, thereby depriving arguably meritorious plaintiffs of their day in

court. It is time that we adopted a more respectful approach, one that recognizes that employment

actions are inherently fact-based. In doing so, we would honor the admonition of the Supreme Court

that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In this case, the evidence clearly did not point in only one direction but

was susceptible to reasonable inferences in Lynch’s favor on the issues of age and race

discrimination. The district court, however, plainly engaged in credibility determinations, weighed

the evidence in favor of the moving party, and repeatedly misstated facts apparent from the record.

Because the majority has put a stamp of approval on the unfortunate result, I respectfully dissent.



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