                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0769n.06

                                              No. 08-2295

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                             FILED
                                                                                         Dec 07, 2009
BRIDGET RAY,                                                                       LEONARD GREEN, Clerk

        Plaintiff-Appellant,

                v.                                                       On Appeal from the United
                                                                         States District Court for the
OAKLAND COUNTY CIRCUIT COURT,                                            Eastern District of Michigan
                                                                         at Detroit
        Defendant-Appellee.


                                                                  /

Before:         GUY, CLAY, and WHITE, Circuit Judges.

        RALPH B. GUY, JR., Circuit Judge.                      Plaintiff Bridget1 Ray is a long-term

employee of defendant Oakland County Circuit Court who filed federal and state race

discrimination claims against her employer after she was passed over for a new position.

Plaintiff challenges the district court’s grant of summary judgment for defendant, asserting

that she established both her prima facie case and pretext on the part of defendant. Finding

that plaintiff presented no evidence that the reasons given by defendant for its promotion

decision were actually pretext for discrimination, we affirm.

                                                     I.




        1
         Although “Bridget” has been used throughout this litigation, the record reveals the correct spelling
is “Bridgett.”
No. 08-2295                                                                               2

       Plaintiff, who is African-American, was hired by defendant as a part-time clerical

trainee in the Oakland County Probate Court in March 1991. She received numerous

promotions through the years until 2002, when she was appointed Probate Specialist, which

is her current position.   During those years, plaintiff completed both associate’s and

bachelor’s degrees, as well as an MBA from Lawrence Technological University.

       In late 2006, defendant underwent a reorganization and created and announced a new

position called Court Clerk Coordinator. The announcement was made by Kevin Oeffner,

Oakland County Circuit Court Administrator, via email directed to all Circuit and Probate

Court employees. The position stated “required minimum qualifications” of a two-year

Associate’s degree; one year of court records processing; successful completion of

examination and physical; and completion of the probationary period. The posting also listed

“desirable qualifications,” including “[c]onsiderable knowledge of procedures related to

court proceedings and appropriate documentation;” and “[c]onsiderable knowledge of

statutory requirements associated with court processing.” Furthermore, the job description

portion of the posting gave a “general summary” of the position:

       Under limited supervision, assists in training and overseeing the work of
       Judicial Court Clerks, the visiting judge clerks, students, and interns.
       Promotes the orderly flow of court proceedings and related documentation.
       Assists in supervising the accuracy of journal entries, and other court
       processes. Ensures the collection of fees by overseeing the performance of
       related procedures in a timely manner. Participates in the committees related
       to the implementation of special projects. Assists with training judicial court
       clerks in all aspects of judicial proceedings. Includes docket management,
       docket reporting, and processing paperwork. Participates in the recruitment,
       selection, and training of judicial court clerks. Coordinates clerk coverage for
       the Family Division and Civil/Criminal Division Judges. Assists with training
       staff of Clerk Register’s Office in criminal procedure practices, assists Court
No. 08-2295                                                                                                 3

        and Court Administrator’s Office in providing reports for State Court
        Administrative Office (SCAO).

        Sixteen applicants, including plaintiff, sought the position in response to the initial

email announcement. Plaintiff was the only Probate Court employee to apply. Jennifer

Clark, Supervisor Clerk Support, selected five of the 16 applicants for interviews, and

plaintiff was not one of the five.2           Clark and Gwynne Starkey, Circuit Court Chief-

Civil/Criminal Division, conducted the interviews. One of the five interviewed was Laura

Hutson, a Judicial Court Clerk, who was ultimately selected for the position.

        After conducting the interviews, defendant reposted the position as an “Open

Competitive Examination,” requiring the completion of an Oakland County Merit System

employment application. Over 100 applications were submitted after this posting. Plaintiff

did not re-submit her application. Jennifer Clark received a “Certification of Eligibles” list

from the Human Resources office, which narrowed the contenders to 13.3 She chose to

recommend Laura Hutson, who was on the list, for the position. Her recommendation was

accepted by the final decision maker, Oeffner, and Clark did not conduct further interviews.

        Plaintiff filed suit in district court in November 2007, following the receipt of her

right-to-sue letter from the EEOC, claiming race discrimination under Title VII and the

Michigan Elliott-Larsen Civil Rights Act. The district court granted defendant’s motion for

        2
         Plaintiff notes that all five were white females, which is not disputed by defendant. Clark testified
at her deposition that she had not worked with plaintiff, who worked for the Probate Court, and was not
aware of plaintiff’s race. She also testified that she did not choose the two men (one white and one African-
American) who applied for the position, because she had worked with each of them and found their work
mediocre.
        3
         These were the 13 applicants who received a test score of 100 and provided official college
transcripts.
No. 08-2295                                                                                               4

summary judgment in August 2008, and denied plaintiff’s subsequent motion for

reconsideration. This timely appeal followed.

                                                    II.

A.      Plaintiff’s Claims and Standard of Review

        Plaintiff claims that defendant’s treatment of her in the promotion process constituted

illegal discrimination on the basis of race under both Title VII and Michigan’s Elliott-Larsen

Civil Rights Act.4 To maintain a Title VII claim where there is no direct evidence of

discrimination, the plaintiff’s indirect evidence is considered under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Chen v.

Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). First, if the plaintiff establishes her

prima facie case, a presumption of unlawful discrimination arises; the burden of production

then shifts to the defendant for the articulation of a legitimate, nondiscriminatory reason for

its action. Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citing

McDonnell Douglas, 411 U.S. at 802), Grizzell v. City of Columbus Div. of Police, 461 F.3d

711, 719-20 (6th Cir. 2006).

        Once the explanation for the adverse action is given, the plaintiff then “must prove

that the legitimate reasons offered by defendant[] were in fact a pretext for discrimination.”

Id. at 720 (citing DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004)). The ultimate burden

of persuading the fact finder remains with the plaintiff. See Blair v. Henry Filters, Inc., 505

F.3d 517, 524 (6th Cir. 2007).

        4
         Elliott-Larsen claims are subject to the same analysis as those brought under Title VII. Sutherland
v. Mich. Dept. of Treasury, 344 F.3d 603, n.4 (6th Cir. 2003).
No. 08-2295                                                                                 5

       This case does not involve direct evidence of race discrimination. The district court

determined, applying the McDonnell Douglas framework to both plaintiff’s federal and state

claims, that she could not establish a prima facie case of race discrimination. It declined to

address defendant’s argument concerning pretext.

       We review the district court’s summary judgment decision de novo. White v. Baxter

Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008), cert. denied, 129 S. Ct. 2380 (2009).

Summary judgment is appropriately entered where “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). The facts and any inferences are viewed in the light most favorable to the non-moving

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

non-moving party may not rest upon its mere allegations or denials of the adverse party’s

pleadings, but rather must set forth specific facts showing that there is a genuine issue for

trial.” Risch v. Royal Oak Police Dept., 581 F.3d 383, 390 (6th Cir. 2009) (citations

omitted).

B.     Prima Facie Case

       The familiar four-part McDonnell Douglas test for a prima facie case of

discriminatory failure to promote requires the plaintiff to demonstrate that (1) she is a

member of a protected class; (2) she applied for and was qualified for the promotion; (3) she

was considered for and was denied the promotion; and (4) other similarly qualified

employees who are not members of the protected class received promotions at the time she
No. 08-2295                                                                                                    6

was denied a promotion. Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir.

2003) (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1020-21 (6th Cir. 2000)).

        Defendant does not contest that plaintiff is a member of a protected class or that she

was qualified for the position she sought. Rather, defendant argued on summary judgment

that plaintiff did not apply for the position, having failed to submit an application after the

reposting, and that the recipient of the position, Laura Hutson, was not similarly situated to

plaintiff. The district court agreed.5

        Concerning the issue of the lack of an application, plaintiff points to her rejection

letter, which simply stated she was not chosen because another person was better suited for

the position, not because she failed to apply for the position.6 She asserts that she was not

“advised” of the requirement to re-apply, and the fact that only five of the 16 initial

applicants re-applied “support[s] the reasonable inference that some persons were told that

they had to re-apply to be considered further, but others were not similarly advised.” Plaintiff

also asserts that because she was not offered an interview when she was one of 16 applicants,

it would have been no different had she applied after the reposting.7 We note that Hutson

        5
          The district court based its ruling on defendant’s “similarly situated” argument, and did not address
the issue of the need for a second application. The district court also noted, in conclusion, that there was no
evidence that any decision maker was aware of plaintiff’s race, and thus there could be no inference of
discrimination.
        6
          This does not appear in the list of exhibits to defendant’s motion for summary judgment, and
plaintiff did not submit exhibits with her response brief. Plaintiff did not submit exhibits until after the
district court had already ruled on the motion for summary judgment and plaintiff’s motion for
reconsideration. Those untimely exhibits were struck from the record by the district court.
        7
         Plaintiff also makes a confusing argument that the defendant had never employed an African-
American person in the position of “Court Clerk Coordinator,” to which defendant responds that it had not
employed anyone in the position, as it was newly created. It is unclear to which position plaintiff is referring,
and the 45-person list plaintiff includes in her brief is not a part of the record below because plaintiff’s
No. 08-2295                                                                                                  7

was hired after the second posting, to which she responded, but this was in part on the basis

of an interview Hutson had as a result of her initial application. We agree with plaintiff that

the lack of a second application should not be fatal to her claim.8

         Turning to the “similarly situated” prong of the McDonnell Douglas framework for

a failure to promote claim, defendant argues that Hutson’s seven years of experience as a

Judicial Court Clerk, by itself, sufficiently differentiates the two candidates. 9 Defendant

examines the requirements of the position as articulated by Clark in deposition, such as

         not just looking at the cases that are on the judge’s docket making sure that
         they have next event dates and things like that, but actually digging deeper into
         the docket, looking to see if procedure and policies are being followed as far
         as, let’s say, for example, a criminal docket, are jailers being processed faster
         than bailers, how does the judge schedule their dockets, do they have pretrials,
         do they go right from arraignment to pretrial to trial, you know, things like
         that.

There is no evidence in the record that plaintiff had any such experience, and, as defendant

notes, plaintiff would have had no criminal docket experience as an employee of the Probate

Court.

         Plaintiff argues that Hutson was not even qualified for the position, having no “degree

at all.” However, Hutson was only a few credits short of a bachelor’s degree at the time of

her application. Defendant asserts that a practice known as “underfilling,” where a person


exhibits were struck from the record.
         8
         Although we do not dispose of the case on this basis, we note that Clark could only select a
candidate from among those applications which were submitted pursuant to the second advertisement of the
opening.
         9
        Defendant devotes significant briefing to pointing out errors in plaintiff’s brief, such as plaintiff’s
statement that there are no facts in the record showing Hutson’s duties as a Judicial Court Clerk, where
Hutson’s resume was an exhibit to the motion for summary judgment.
No. 08-2295                                                                                               8

lacking educational requirements could be hired but not paid at the level of the position until

the requirements were completed, could have allowed for the hiring of such an individual,

which is not disputed by plaintiff.10 Plaintiff does not contend that allowing Hutson to fill

the position with a degree pending completion was an exception to defendant’s normal

practice.

        Alternatively, plaintiff cites to her deposition transcript in arguing that she was

similarly situated to Hutson, asserting she also had the experience that was required for the

position. Specifically, plaintiff argues she had the required “docket management experience”

by pointing to the following sections of her deposition:

        Q [by counsel for defendant]: – you’re not using docket to refer to any of the
        materials in the files that you went over, is that correct?

        A: That’s not correct, no.

        Q: Okay. Explain it to me, then.

        A: We – even as Probate Register and as a Probate – Deputy Probate Register,
        a Probate Specialist, we’re the ones who initially start the case. We assign
        court dates.

        Q: Uh-huh.

        A: As well as, we have the responsibility to set cases on the docket, to take
        cases off a docket. That – all of that is in docket management.

        Q: Okay.

        A: We’re the ones – we have the – we have the authority to adjourn cases.
        We were assigned at some point to adjourn – we have – only Deputy Probate


        10
          Plaintiff also points to a white candidate who applied after the initial posting, Jean Harroun, an
employee in the Case Management Office, who plaintiff argues did not have the educational experience
required for the job, yet was interviewed for the position.
No. 08-2295                                                                               9

       Registers II have the authority to adjourn the case, and my – this – my
       coworkers who are under me were not able to do that. They had to come to
       myself or another coworker in the same classification in order to get it
       authorized.

       Q: What were the circumstances under which you were free to adjourn a case?

       A: We could adjourn a case – at one point we had a list of reasons that were
       allowed to be adjourned, and we could base that on those set of reasons.
       There’s also another situation on there at the Court’s discretion that we could
       use as well as a reason, depending on what someone said to us, basically--

       Q: Okay.

       A: –and we felt it warranted an adjournment.

       ....

       Q [by counsel for plaintiff]: Can you think of anything else that would be
       involved in docket management other than scheduling cases and adjourning
       them and removing them from the docket?

       A: We actually put all of that on the computer. We were the ones that
       input–we create the docket.

       Q: So that is docket management, right?

       A: Yes.

Plaintiff also points to another of her duties as a Probate Specialist to argue she was

“similarly situated” to Hutson:

       Q [by counsel for defendant]: Were you ever assigned to work one-on-one
       with a judicial clerk to show them what to do?


       A: We were assigned as Probate Specialists that if we had a judicial clerk, we
       were told that if they needed anything, if they were new, that it was our job to
       assist them and train them in anything that they needed.
No. 08-2295                                                                                    10

       Q: So basically, then, if a judicial court clerk had a question about something
       and they were in your physical probate area, they could come and ask you.

       A: They were supposed to ask us.

       Q: And who else – who else would they ask besides you?

       A: It was four of us. We’re Probate Specialists, and that was part of our job.

       In making its ruling on summary judgment, the district court noted that “[i]n

Plaintiff’s various capacities in the Probate Court, Plaintiff was neither assigned to a judge

nor did she have direct experience managing a judge’s docket.” It also noted that Clark had

identified prior judicial court clerk experience as among the top criteria for candidates, and

contrasted the seven years of direct judicial clerking experience possessed by Laura Hutson

with plaintiff’s Probate Court experience. The district court found that although plaintiff

had been employed in the court system longer and had more education than Hutson, there

was no issue of material fact as to the similarly situated prong of the McDonnell Douglas

test, as there were significant differences in the “relevant aspects of [their] employment

situation[s].” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)

(emphasis omitted) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th

Cir. 1994)). The court reasoned that although plaintiff may have been qualified for the

position, this did not make her “similarly situated” to all of the other qualified applicants, and

disposed of the case without addressing the issue of pretext.

B.     Pretext

       Even if we were to conclude that the district court erred in finding that plaintiff failed

to make out a prima facie case, we are convinced she can not satisfy the requirement of
No. 08-2295                                                                                             11

establishing pretext.11 A plaintiff shows the proffered reason for the adverse action was

pretextual by demonstrating that the defendant’s reason “(1) has no basis in fact; (2) did not

actually motivate the decision not to promote, or (3) was insufficient to warrant the decision

not to promote.” Grizzell, 461 F.3d at 720 (citing Zambetti v. Cuyahoga Cmty. College, 314

F.3d 249, 255 (6th Cir. 2002)) (citing Manzer v. Diamond Shamrock Chem. Co., 29 F.3d

1078, 1084 (6th Cir. 1994)).

        Defendant cites to deposition testimony of Clark and Starkey to show that they were

looking for Circuit Court courtroom and docketing experience in choosing someone for the

position, and that they both knew Laura Hutson’s work and thought she would be well suited

for the position. Specifically, Ms. Starkey testified that

        [Hutson] had a great deal of experience in running the dockets for her judge.
        I knew her from prior working with her that she was organized. She was very
        efficient. She had worked with us on a couple of other projects that we tried
        to institute.

               When we tried to institute some new procedures with court clerks, she
        had assisted us in developing some procedures and also training other clerks
        on the various procedures that we wanted to do. . . .

        Plaintiff, however, asserts that defendant’s rationale for the selection has shifted

during this litigation, bringing into question the credibility of defendant’s current

explanation. Plaintiff pieces together portions of the answer to her complaint in suggesting

that initially defendant explained that the position was reposted solely to allow judicial court

clerks to apply for the position:



        11
         We may affirm for any reason supported by the record. See Loftis v. United Parcel Serv., Inc., 342
F.3d 509, 514 (6th Cir. 2003).
No. 08-2295                                                                                            12

        ‘[T]he most important selection criterion for the [Court Clerk Coordinator]
        position was docket management experience . . . [and] the position was
        reposted as an open Competitive Examination’ to allow Court Clerks to
        compete for the position.

Plaintiff contrasts this explanation with the explanation in defendant’s brief in support of its

motion for summary judgment, where defendant stated that

        Mr. Oeffner informed Ms. Clark that the Court Clerk Coordinator position
        must be reposted as an open Competitive Examination in order to give those
        Probate Court and Circuit Court employees, who were not in the Merit System,
        the opportunity to be considered for the position.

Plaintiff contends defendant’s explanation was changed only after Ms. Harroun, in discovery,

“testified that Judicial Court Clerks did NOT acquire docket management experience in that

position.” 12 Plaintiff argues that such a “shifting justification” is sufficient evidence of


        12
          Defendant cites to Harroun’s testimony, which indicates that individual judges’ clerks had only
started within the previous six months to have primary responsibility for inputting dates in their judges’
dockets. However, the testimony also shows that judges’ individual clerks had always interacted with the
Case Management Office in planning cases:

        Q: Just briefly, with respect to the docket management, the Case Management Office does
        and did, vis-a-vis, what the judicial court clerks do and did.
           Well, first, let me ask you this: Have you ever had occasion to work as a substitute
        judicial court clerk?
        A: Yes.
        Q: So you have some knowledge of what judicial court clerks do as well.
        A: Quite a bit.
        Q: Do they have contact with the judge’s docket, court docket?
        A: Now they do.
        Q: And didn’t they used to before?
        A: To a point, right. We managed it and told them what needed to be set, what needed to
        be done.
        Q: Okay. So they were familiar with it--
        A: Right. Correct.
        Q: – is that fair to say?
        A: Yes, very fair.
        Q: Would they work with your office in terms of making sure that the judge’s docket ran
        smoothly--
        A: Yes.
        Q: – and was in proper order?
No. 08-2295                                                                                             13

pretext, citing Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002);

Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).13

        This argument lacks merit. First, a thorough reading of the answer to the First

Amended Complaint reveals that the explanation at the time the defendant’s answer was filed

is the same explanation given at the time of the summary judgment motion, i.e., that the

position was reposted to allow individuals who were not a part of the Merit System to apply.

Second, we cannot find that Ms. Harroun’s testimony demonstrated that applicants who were

Judicial Court Clerks had not been exposed to docket management. Although it appears that

the job duties of court clerks had recently changed to involve additional docket management,

it is beyond dispute that court clerks’ jobs had always involved management of courtroom

activities and case schedules.

        In the end, plaintiff has simply not presented evidence of significance to show that the

legitimate, nondiscriminatory reasons stated for the placement of Laura Hutson were actually

pretext for race discrimination. See Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 730 (6th

Cir. 1999). Plaintiff asserts—citing to Farber v. Massillon Board of Education, 917 F.2d




        A: Yep. They always called to see what the numbers were and if we had any that needed
        to be set that we hadn’t contacted them about.
        Q: So it’s fair to say that the Case Management Office traditionally, even before the change
        in the last six months, always worked with judicial court clerks to make sure the judges’
        dockets were in order and ran smoothly; is that correct?
        A: Always.
        13
           In Cicero, an age discrimination case, the explanation for terminating the plaintiff’s position
changed from poor performance, to a decision to fire the entire management team (which in fact, was not
done), to a decision to fire those managers who played a certain role. Cicero, 280 F.3d at 592. In Thurman,
the defendant asserted plaintiff’s work performance problems only after the litigation began, despite
plaintiff’s direct questions about why he was terminated at or around the time of his termination.
No. 08-2295                                                                                   14

1391 (6th Cir. 1990)—that other applicants who were interviewed (i.e., Harroun and Hutson)

did not have the “requisite qualifications,” and that defendant relied on “subjective criteria”

in determining who had the relevant docket management experience. However, unlike

Farber, where the selected candidate for Director of Instruction had no teaching experience,

and the “subjective criteria” were found to be a disguise for discriminatory action, the criteria

in this case were used to select among various qualified applicants. Plaintiff’s unsupported

assertions do not allow her to survive defendant’s motion. See Matsushita, 475 U.S. at 587.

       Regardless of whether the case was properly disposed of on the “similarly situated”

issue, which resulted in the district court’s determination that plaintiff failed to establish a

prima facie case, we find no genuine issue of material fact with respect to the question of

pretext.

       The district court is AFFIRMED.
No. 08-2295                                                                                    15

       CLAY, Circuit Judge, dissenting. Bridget Ray was a qualified African-American

applicant who applied for a promotion to the position of Court Clerk Coordinator at the

Oakland County Circuit Court. Construing the facts in the light most favorable to her, Ray

was passed over for the position for someone who did not facially meet the job’s

qualifications, and the curious circumstances of the application process and shifting

rationales for the position criteria most valued by Defendant indicate that Defendant’s non-

discriminatory reason for not promoting Ray may have been pretextual. For these reasons,

I respectfully dissent.

       The majority’s opinion lays out the relevant facts as stated by the parties but fails to

present them in a light most favorable to Plaintiff, as required on summary judgment. The

majority seems to accept as true everything that Defendant’s various witnesses say and

glosses over the irregularities of the hiring process. The position of clerk court coordinator

was posted as a merit system job. Plaintiff, a long-time Probate Court employee, applied for

the job along with sixteen other people. Jennifer Clark, supervisor of clerk support, decided

to interview five applicants, all of whom were white and had inferior educational credentials to

Plaintiff. Two of the women, including Laura Hutson who was eventually hired, did not facially

meet the educational requirements of the job posting. Following the interviews, Defendant decided

to hire Hutson but determined that she was ineligible for the position because she was not a merit

system employee. To further its objective of selecting Hutson, Defendant reposted the position as

“open competitive examination.” More than 150 people applied. Defendant asserts that it reposted

the position in an effort to make all circuit and probate employees eligible, but when human
No. 08-2295                                                                                          16

resources forwarded the names of the thirteen applicants purportedly most qualified, a list that

included Hutson, Defendant decided not to interview any new applicants and merely hired Hutson.

       As the majority notes, this case deals with indirect evidence of racial discrimination and

should be analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). While the district court held that Ray did not present a prima facie

case, the majority does not reach that issue and instead rests its holding on its determination that Ray

did not demonstrate pretext. Ray undoubtedly made out a prima facie case for racial discrimination

– which the district court failed to recognize because of the improper weight it accorded to

Defendant’s evidence. Furthermore, I disagree with the majority’s pretext analysis and find that the

irregularities of the application process and Defendant’s shifting emphasis on the importance of

docket management experience raises issues that should be decided by a jury.

       A.      Defendant Established a Prima Facie Case

       To establish a prima facie case for failure to promote, a plaintiff 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 the plaintiff’s request for

the promotion was denied. Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000). Both

parties agree that Ray is part of a protected class and that she was considered for and denied the

promotion. While Defendant disputes whether Ray actually applied, I agree with the majority’s

determination that Ray’s actions in applying for the job were sufficient.

       The district court found against Ray on the similarly situated prong by reading the similarly

situated criteria way too broadly and by uncritically accepting Defendant’s own rationale for its

actions. “The burden of establishing a prima facie case of disparate treatment is not onerous.”
No. 08-2295                                                                                    17

Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The requirement of

making out a prima facie case is not “meant to stymie plaintiffs, but simply serves to ‘bring

the litigants and the court expeditiously and fairly to the ultimate question.’” Cline v.

Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000) (quoting Burdine, 450 U.S.

at 253). “An exact correlation with the comparable employee is not required.” Barnes v.

City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005).

       The district court’s decision made two erroneous determinations on the issue of

whether the two individuals being compared were “similarly situated.” First, it determined

that the different jobs held by Hutson and Ray at the time they applied meant that they were

not similarly situated. Second, it impermissibly relied on the non-discriminatory reasons

proffered by Defendant that should be considered at the pretext stage of the analysis.

       The first mistake is based on too broad an extension of Pierce v. Commonwealth Life

Ins. Co., 40 F.3d 796 (6th Cir. 1994). That case held that: “In order for two or more

employees to be considered similarly-situated for the purpose of creating an inference of

disparate treatment in a Title VII case, the plaintiff must prove that all of the relevant aspects

of his employment situation are ‘nearly identical’ to those of the . . .employees who he

alleges were treated more favorably.” Id. at 802. While Hutson and Ray had different jobs,

the differences between their positions do not necessarily mean that hiring one over the other

automatically indicates the absence of discrimination. The employees in Pierce were

different in a much more material way. Pierce involved a male employee’s reverse sex

discrimination claim based on a demotion he received for violating the company’s sexual
No. 08-2295                                                                                    18

harassment policy, while a female employee who also violated the policy was not disciplined.

The crucial difference between the two, however, was that Pierce was a supervisor, and his

actions could have made the company itself liable. The differences between a circuit court

and a probate court employee are not so material.

       Under the district court’s overly broad reading of Pierce, Ray could never have set

forth a claim for racial discrimination. She was the only probate employee who applied for

the position. By the district court’s reasoning, no candidate hired by Defendant could be

similarly situated to Ray. Therefore, absent direct evidence of racial discrimination,

Defendant’s decision not to promote Ray would be entirely shielded from scrutiny under

Title VII no matter what the actual motivation of those in charge of hiring.

       Even read more narrowly, the district court’s analysis remains equally flawed. The

district court found that Ray’s superior educational record and additional experience in a

variety of court-related jobs “cannot create a substantial issue of material fact as to this prong

because those qualifications are not equivalent to Court Clerk experience.” The district court

determined that nothing in Ray’s resume could match court clerk experience. The district

court’s analysis means Defendant could have appointed a poor performing, highly

unqualified court clerk and still prevailed at the summary judgment stage because Ray did

not have “equivalent” court clerk experience. For instance, the district court’s opinion would

have been identical had Defendant promoted Markian Karpinsky, a male court clerk who

applied for the position. According to Defendant, Karpinsky was not interviewed because

Clark “considered his job performance to be mediocre, he made errors, and made
No. 08-2295                                                                                 19

inappropriate use of county property.” (Def. Br. at 14.) Despite this dismal evaluation, the

district court’s holding would apply with equal force had it hired Karpinsky instead of

Hutson. It is incredible to imagine that a plaintiff could not make out a Title VII case when

she was qualified for the position, and a defendant promoted instead a clearly unqualified

employee.

       Defendant also relies on the more applicable White v. Columbus Metro. Hous. Auth.,

429 F.3d 232 (6th Cir. 2005). In that case, a female employee did not receive a promotion.

A male employee was promoted instead, and the court found that some comparison between

the two employees was necessary at the prima facie stage of the case.

       Engaging in such a comparison does not impermissibly conflate the two stages
       of the McDonnell Douglas test, for just as the court must independently review
       the plaintiff’s qualifications in determining whether the plaintiff has met the
       second prong of her prima facie burden, so too does the court conduct an
       independent review of the relative qualifications of the plaintiff and the person
       selected for the position based on the evidence presented in order to determine
       whether the plaintiff has satisfied the fourth prong of her prima facie burden.


Id. at 243. In that case, the court analyzed the two applicant’s experience and found that the

plaintiff was not as qualified as the person promoted for the position.

       The problem with Defendant’s argument on this point is that Ray is only less qualified

than Hutson if you accept Defendant’s testimony about what it valued in a Court Clerk

Coordinator. The need to rely on Defendant’s purported preferences for the position make

this case readily distinguishable from White. The district judge noted that “Clark identified

prior Court Clerk experience as being one of her top criteria for a successful candidate.” The

relative weight assigned by Clark to a candidate’s qualifications and attributes are irrelevant
No. 08-2295                                                                              20

in determining whether Ray made out a prima facie case. “[A] court misapplies the structure

of McDonnell Douglas by holding that [plaintiff] fails at the prima facie stage due to

defendant’s nondiscriminatory reason.” Cline, 206 F.3d at 661. Clark’s stated preferences

for what she most valued in an applicant should be considered in the second and third steps

of the McDonnell Douglas framework.

       Defendant makes no argument for Hutson’s supposedly superior qualifications

without specifically referencing the stated preferences of Clark or other decision-makers.

On the terms of the job posting itself, the only deficiency of either employee was actually

Hutson’s lack of a formal degree. Absent countervailing evidence from Defendant, Ray was

actually passed over for a position for which she had the qualifications in favor of someone

who facially did not meet those qualifications. It would pervert the McDonnell Douglas

framework to find that such a situation cannot constitute discrimination merely because the

two applicants worked in different court departments. Even accepting Hutson as qualified,

it is unclear who would be the better employee, the one with superior education and long-

term court experience or the one with slightly more direct experience. Similarly situated

supervisors could reasonably prefer either applicant. Clark later claimed that she preferred

what she thought to be the more relevant experience, but to consider Clark’s testimony runs

afoul of the admonition in Cline that a court should not consider the non-discriminatory
No. 08-2295                                                                                      21

reason offered by a defendant at the prima facie stage. For these reasons, it is apparent that

Ray easily presents a prima facie case.1

       B.      Defendant’s Non-Discriminatory Reason May Have Been Pretextual

       Ray concedes that Defendant has offered a nondiscriminatory reason for hiring

Hutson. The burden then shifts to Plaintiff to “produce sufficient evidence from which the

jury may reasonably reject the employer’s explanation.” Warfield v. Lebanon Corr. Inst., 181

F.3d 723, 730 (6th Cir. 1999) (quoting Manzer v. Diamond Shamrock Chemicals Co., 29

F.3d 1078, 1083 (6th Cir. 1994)). “Pretext may be established ‘either directly by persuading

the [trier of fact] that a discriminatory reason more likely motivated the employer or

indirectly by showing that the employer’s proffered explanation is unworthy of credence.’”

White v. Baxter Healthcare Corp., 533 F.3d 381, 392 (6th Cir. 2008) (quoting Burdine, 450

U.S. at 256.) “A plaintiff will usually demonstrate pretext by showing that the employer's

stated reason for the adverse employment action either (1) has no basis in fact, (2) was not

the actual reason, or (3) is insufficient to explain the employer’s action.” Id. at 393. In

addition, “shifting justifications over time calls the credibility of those justifications into

question.” Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002).

       Viewed in the light most favorable to Plaintiff, the oddities of the application process

and Defendant’s assertions about the importance of “docket management experience” would




       1
          While the majority does not reach the issue of prima facie case, it is troubling that the
district court’s flawed analysis is uncritically presented by the majority without comment. If the
majority wanted to base its decision solely on pretext, it would have been better served to omit its
recitation of the parties’ positions and the district court’s unsound analysis.
No. 08-2295                                                                                        22

allow a reasonable jury to find that Defendant’s nondiscriminatory reasons were pretextual.2

As stated above, the application process did not proceed in an orderly or credible manner.

At first, the position was listed as a merit position. Hutson was not a merit system employee.

Nonetheless, she not only applied for the job but was interviewed and chosen as the top

applicant. Having chosen Hutson, Defendant apparently realized that the job needed to be

posted as “open competitive examination” in order for Hutson to be eligible. When the

position was reposted, more than 150 applicants applied. Thirteen were forwarded to Clark

as the most qualified applicants, but rather than interview any of them, she simply

recommended Hutson. This series of events is irregular, to say the least. One is left to

wonder why Hutson applied in the first place if she was not eligible for the position. After

the job was reposted, 154 applicants applied, and it appears that at least thirty-three were

current Oakland County employees. These people apparently realized they were ineligible

for the first application. (R-14, Defendant’s Motion for Summary Judgment, Exhibit 6).

       Furthermore, only six of the 15 original applicants reapplied, indicated the majority

of those applicants may have become discouraged by the arbitrariness and irregularity of the

application process. The record is not clear which of the original applicants were merit

system employees and which were not.              In any case, when the first posting proved

ineffective, Defendant effectively undertook a sham proceeding that induced over 150

applicants, when it probably had already determined that Hutson would receive the job. This

       2
         Plaintiff also argues that the lack of education of both Hutson and another applicant who was
interviewed is evidence of racial discrimination. Defendant has attempted to explain two policies,
counting hours towards a bachelor’s degree as equivalent to an associate’s and “underfilling,” in
order to justify these deviations.
No. 08-2295                                                                                 23

whole process may have been a contrivance to give the job to Hutson, not in and of itself a

violation of Title VII unless motivated by invidious discrimination, but the irregularity

suggests improper subjectivity, and “subjective reasons provide ‘ready mechanisms for

discrimination.’” Hedrick v. Western Reserve Care System, 355 F.3d 444, 461 (6th Cir.

2004) (quoting Grano v. Dep’t of Dev. of City of Columbus, 699 F.2d 836, 837 (6th Cir.

1983)). Whether the subjectivity was based on race is an issue of fact best left to the fact-

finder.

          Equally problematic is Defendant’s amorphous reliance on “docket-management”

experience. In its answer to Ray’s complaint, Defendant stated that: “the most important

selection criteria for the [Court Clerk Coordinator] position was docket management

experience, which Plaintiff did not have.”        (Answer ¶ 7.)     This answer is extremely

problematic and lacking in credibility where Defendant was so set on hiring Hutson that it

underwent a sham second application process. Hutson, one would think, would therefore

have exemplary docket management experience. Another applicant, Jean Harroun, testified

that at the time of Hutson’s promotion, the Circuit Court Record Specialists, and not the court

clerks, were responsible for maintaining the judges’ dockets.

          The majority attempts to dismiss this testimony by stating that: “Although it appears

that the job duties of court clerks had recently changed to involve additional docket

management, it is beyond dispute that court clerks’ jobs had always involved management

of courtroom activities and case schedules.” Majority Op. at 13. Contrary to the majority’s

unwarranted conclusion, Harroun testified that court clerks were familiar with the docket but
No. 08-2295                                                                                   24

that the case management employees “managed [the docket] and told [court clerks] what

needed to be set, what needed to be done.” This level of “docket management experience”

is very similar to Plaintiff’s. Ray testified that in her position she could schedule and adjourn

cases and that she put the information into the computer to create the docket. Despite this

similarity to Hutson’s experience, Clark allegedly rejected Ray in part because Clark did not

“ see any courtroom experience or docket management experience, and that’s really what I

was focusing on.” A reasonable jury could find that Ray’s docket management experience

was at least similar to Hutson’s. Considering this was Defendant’s “most important selection

criteria,” it is troubling in the extreme that the rejected African-American employee’s docket

management experience was not that dissimilar from that of the white employee who was

hired.

         At best, it appears that Clark wished to hire Hutson, a white woman, as Court Clerk

Coordinator. The resulting job search involved several irregularities, and Defendant’s desire

to hire Hutson has made it necessary for Defendant to struggle to clearly articulate its

supposedly objective criteria. The obvious focus on Hutson may or may not involve racial

discrimination, but the oddities surrounding the hiring, the inability to rely on objective

criteria, and the failure to even grant an interview to a qualified African-American employee

could allow a jury to find that the decision was racially motivated. For these reasons, I

respectfully dissent.
