               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0271n.06
                           Filed: April 19, 2006

                                          No. 05-1162

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


MICHAEL YOUNG,                                          )
                                                        )       ON APPEAL FROM THE
       Plaintiff-Appellant,                             )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE EASTERN
              v.                                        )       DISTRICT OF MICHIGAN
                                                        )
OAKLAND COUNTY,                                         )
                                                        )
      Defendant-Appellee.                               )
___________________________________________



BEFORE: NELSON, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

       PER CURIAM.

       In this action alleging employment discrimination on account of race in violation of 42

U.S.C. § 2000e-2(a) (“Title VII”), and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”),

MICH. COMP. LAWS ANN. § 37.2202 (2001), plaintiff Michael Young claims that defendant Oakland

County, Michigan, discriminated against him on the basis of race by failing to interview and hire

him for the position of Chief Community Corrections Field Operations Manager. The district court

granted defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure

56(c). We affirm.

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No. 05-1162
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       The following factual background is taken from the district court’s concise and thorough

recitation of the facts as set forth in its opinion and order granting defendant’s motion for summary

judgment:

       Defendant uses an equal employment opportunity policy, an affirmative action
       policy, and a system of merit rules for filling vacancies in county positions.
       Following these policies, Defendant announced an opening for the position of Chief
       Community Corrections Field Operations on January 14, 2002. Although experience
       with the criminal justice system was not listed as a requirement for obtaining the job,
       the description quite clearly indicated that, as alluded to by the position’s title, a
       great portion of the job dealt with the criminal justice system. The description was
       as follows:

               Under limited direction, is responsible for supervising Pretrial
               Service unit employees and support staff. Reviews reports
               concerning the status of inmates housed in the Oakland County Jail.
               Assists the court in the more complex bonding considerations and
               other alternatives. Prepares and presents regular reports based on
               program statistics to appropriate officials. Monitors the Pretrial
               Services program budget. Responds to and initiates correspondence
               to a variety of individuals within the criminal justice system.
               Participates in developing, implementing, and updating policies and
               procedures for the consistent operation of Pretrial Services including
               the customized database Pretrial on Line [sic]. Assists with
               establishing long range goals and strategies for the division. Assists
               the manager in the development of the division budget and in the
               presentation to the Board of Commissioners and related committees.
               Assists the manager in the development of the state grant application.
               Functions as a liaison concerning the Pretrial Services Program to
               various committees and agencies.

       Def. Mot., Ex. 3. As the job description indicates, the position of Chief Community
       Corrections Field Operations requires more than mere interaction with the criminal
       justice system, or even the managing of criminal justice employees. The position is
       responsible for the formation of policies and procedures and the actual development
       of the Pretrial Services. Whoever is hired must serve as Pretrial Service’s liaison to
       other agencies, be responsible for inmates in the Oakland County Jail, and assist the



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      Oakland County Court with complex bond issues. Needless to say, criminal justice
      experience would be a significant asset in such a position.

      The position’s minimum qualifications, however, were a master’s degree in public
      or business administration, criminal justice, social work, sociology, psychology, or
      related areas; and at least four years full-time case work or related work experience
      involving interviewing, investigating and counseling practices, procedure and
      techniques, and a valid driver’s license. Id. Experience in the criminal justice field,
      then, was not listed as a requirement as such.

      Plaintiff, who has a master’s degree in business administration and twenty-one years
      of employment at General Motors Corporation, applied for the position on March 1,
      2002. Initially, Plaintiff was rejected because he did not meet the minimum
      qualifications. In response to this rejection, Plaintiff hand delivered a letter which
      he characterized as a formal appeal. Defendant replied in writing that Plaintiff’s
      application was rejected because he appeared to lack the required caseload and
      counseling experience. The letter explained that Plaintiff’s application would
      nevertheless be accepted, because Defendant would consider information Plaintiff
      had submitted in a prior application. Plaintiff has applied for numerous positions
      with Defendant, but has only obtained one interview to date.

      Defendant then asked Plaintiff to complete the next step in the process, which was
      a training and experience questionnaire. The questionnaire consisted of four
      questions. Based on the completed questionnaire, Plaintiff was informed on
      March 28, 2002, that he had passed the Chief Community Corrections Field
      Operations examination with a final score of 100 and his “rank on the eligible list
      [was] ‘Top Five.’” Pl. Resp., Ex. G. According to Defendant, anyone who answered
      yes to all four questions received a score of 100 and was placed on the “Top Five”
      list. In fact, there were twenty-nine candidates who scored 100 on the exam and
      were placed in what Defendant calls the “Top Five” eligible list.

      According to Defendant, the names on the “Top Five” list are not ranked and are
      listed in random order, and the fact that Plaintiff’s name appeared second on the list
      had no meaning. Of the twenty-nine “Top Five” candidates, there were nine
      Caucasian females, nine Caucasian males, six African American females, four
      African American males, and one male of unidentified race. Six persons were
      interviewed for the position. All six interviews were conducted on March 25, 2002.
      The interviews were conducted before Plaintiff finished proving his eligibility.
      Plaintiff first appeared on the eligible list when it was in its fourth revision, which



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       revision was sent out on April 3, 2002. Defendant’s merit rules allow for the best
       candidate to be hired at any time during the interview and hiring process.

       Of the six interviewed, three were African American females, two were Caucasian
       males, and one was a Caucasian female. Three of the six had no direct criminal
       justice experience. Ultimately, one of the six, a Caucasian male, Robert Gatt, was
       hired. Mr. Gatt’s application materials demonstrated that he possessed extensive
       experience in the criminal justice system, whereas Plaintiff’s application materials
       demonstrated that he possessed no experience in the field. Defendant maintains that
       it has an obligation to hire the best candidate for the job regardless of race or any
       other factor.

       Defendant believes that the “Top Five” misnomer is what caused Plaintiff to believe
       that he was passed over for the position on account of his race. Plaintiff, himself,
       sees no reason other than race why he could be placed in the top five yet not receive
       an interview when Defendant interviewed six candidates. Plaintiff points out that the
       Affirmative Action report prepared by the county for both 2001 and 2002 indicates
       that the classification and department for which Plaintiff applied had not met the goal
       for utilizing minorities. However, Defendant’s obligations under its affirmative
       action policy are not requirements, but goals. Furthermore, the information on race
       supplied by the candidates is used for statistical purposes only, and those making the
       hiring decision are not informed of a candidate’s race prior to the interview, though
       they do know generally that minorities have applied.

                                                  II.

       Plaintiff filed a charge of discrimination with the Michigan Department of Civil Rights and

the Equal Employment Opportunity Commission (“EEOC”) and defendant was duly notified of a

forthcoming investigation. Nevertheless, the EEOC district director subsequently advised defendant

that the investigation was being terminated because plaintiff had requested a “notice of right to sue.”

       On June 12, 2003, plaintiff filed the present action in district court, alleging race

discrimination in violation of Title VII and Michigan’s ELCRA arising out of his attempts to gain

employment with defendant and its failure to hire him. Following the close of discovery, defendant



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moved for summary judgment. The district court granted defendant’s motion and dismissed

plaintiff’s case with prejudice, ruling that plaintiff failed to present any evidence of direct

discrimination and, also, failed to carry the prima facie burden required of the alternative method

of demonstrating discrimination by the presentation of circumstantial evidence. Specifically, the

district court held that, in light of his extensive criminal justice background, Gatt was better

qualified for the vacant position than plaintiff, who had no such experience; thus, plaintiff was

unable to make the requisite showing that he was similarly situated in all relevant aspects of his

employment circumstances with Gatt. The district court further concluded that even if plaintiff

satisfied his prima facie burden, defendant articulated a legitimate, nondiscriminatory reason for

hiring Gatt, namely, his superior qualifications, and plaintiff failed to demonstrate that this reason

was pretextual. Plaintiff now timely appeals from the judgment entered in favor of defendant.

                                                 III.

       This Court reviews a district court’s grant of summary judgment de novo. Black v. Roadway

Express, Inc., 297 F.3d 445, 448 (6th Cir. 2002). Pursuant to Federal Rule of Civil Procedure 56(c),

summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there exists no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Id. In considering a

motion for summary judgment, the district court must construe all reasonable inferences in favor of

the nonmoving party. Detroit Water Team Joint Venture v. Agric. Ins. Co., 371 F.3d 336, 338 (6th

Cir. 2004).    “[O]nce the movant of a summary judgment motion satisfies its burden by



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demonstrating the absence of a genuine issue of material fact, the nonmoving party must produce

specific facts demonstrating a genuine issue of fact for trial if it is to withstand summary judgment.”

Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 832 (6th Cir. 2005) (internal quotation

omitted). A dispute over a material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Accordingly, when a reasonable jury could not find that the nonmoving party is entitled to

a verdict, there is no genuine issue for trial and summary judgment is appropriate. Id. “The mere

existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there

must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at

252; Cox v. Ky. Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).

                                                 IV.

       In Seay v. Tennessee Valley Authority, 339 F.3d 454, 463 (6th Cir. 2003), this Court

reiterated the well-established standard of proof required in Title VII cases:

       To avoid a grant of summary judgment on a Title VII claim, a plaintiff must either
       provide direct evidence of discrimination or establish a prima facie case, which
       creates an inference of discrimination based on circumstantial evidence. Talley v.
       Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1248 (6th Cir. 1995) (citations omitted). A
       prima facie case requires a plaintiff to show (1) that he is a member of a protected
       class; (2) that he applied for, and did not receive, a job; (3) that he was qualified for
       the job; and (4) that a similarly-situated person who was not in the plaintiff’s
       protected class received the job. Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160,
       1166 (6th Cir. 1996); see also Tex. Dep’t of Comty Affairs v. Burdine, 450 U.S. 248,
       253-54 & n.6, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas
       Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

       Once the plaintiff establishes a prima facie case, the burden shifts to the defendant
       to offer a legitimate, nondiscriminatory reason for the adverse employment action

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No. 05-1162
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       at issue. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411
       U.S. at 802, 93 S.Ct. 1817). If the defendant satisfies that burden, then the burden
       of production shifts back to the plaintiff to show that the defendant’s proffered
       reason is a pretext for discrimination. Id. (citing McDonnell Douglas, 411 U.S. at
       804, 93 S.Ct. 1817). “A plaintiff can demonstrate pretext by showing that the
       proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s
       challenged conduct, or (3) was insufficient to warrant the challenged conduct.”
       Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 434 (6th Cir. 2002) (quoting Dews
       v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000) (internal citation and quotation
       marks omitted)).

       The same test is applied to claims of unlawful race discrimination under Michigan’s ELCRA.

Sutherland v. Mich. Dept. of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003); Hazle v. Ford Motor

Co., 628 N.W.2d 515, 520-21 (Mich. 2001).

       Here, there is a dearth of direct evidence showing discrimination. With regard to a case

based on circumstantial evidence, the parties do not dispute that plaintiff has satisfied the first two

elements of a prima facie claim pursuant to the McDonnell Douglas framework: (1) he is a member

of a protected class, and (2) he applied for, and did not receive, a job. Despite defendant’s argument

to the contrary, the district court found that plaintiff had established the third prima facie element,

i.e., that he was qualified for the position, but concluded that plaintiff failed to adequately

demonstrate the fourth, similarly-situated prong of a prima facie case, opining in pertinent part:

       Although Plaintiff met the minimum qualifications for the position, so did twenty-
       three other candidates who had made it on to the final eligibility list. Consequently,
       Defendant asserts that it was allowed to form additional qualifications and review the
       application materials for those additional qualifications. Barbara Hankey, who
       performed the interviews and the final hiring decision, and was promoted from the
       position herself, made it her goal to fill the position with someone who had criminal
       justice experience.




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       Whether or not creating additional requirements is an acceptable procedure, the
       Court concludes that while Plaintiff has established that he was initially qualified for
       the job, he has not established that he was similarly situated with Mr. Gatt, the
       person whom Defendant decided to hire. It is obvious that the position of Chief
       Community Corrections Field Operations Manager entails working within the
       criminal justice system. A candidate with criminal justice experience is simply more
       qualified than a candidate with no such experience, and the two are not similarly
       situated.

       Plaintiff’s contention that Defendant could not know whether Mr. Gatt was more
       qualified than Plaintiff without interviewing Plaintiff lacks merit. The application
       procedures prior to the interview stage provided ample opportunity to discover the
       type of work experience possessed by each candidate. Plaintiff lacked any criminal
       justice experience and, given the position’s job description, no reasonable jury could
       conclude that Plaintiff was similarly situated with Mr. Gatt when it came to selecting
       the most qualified candidate for the position of the Chief of Community Corrections
       Field Operations. Thus, Plaintiff has not made out a prima facie case of
       discrimination.

       We agree. In Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994), we

explained that in order to be considered “similarly situated” for purposes of creating an inference

of disparate treatment, a plaintiff must “prove that all of the relevant aspects of his employment

situation are ‘nearly identical’ to those of the [non-minority] employee[] who he alleges [was]

treated more favorably” (emphasis added). “Courts . . . should make an independent determination

as to the relevancy of a particular aspect of the plaintiff’s employment status and that of the non-

protected [successful applicant].” Ercegovich v. Goodyear Rubber & Tire Co., 154 F.3d 344, 352

(6th Cir. 1998).

       Here, where the value of a criminal justice background in relation to the position at issue is

self-evident, the district court properly determined that plaintiff was not similarly situated to Gatt,

whose employment application indicated that he not only met the general criteria for the position,

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but also was a police sergeant with twenty-seven years of experience on the police force. Plaintiff

had no such experience. The factor of criminal justice experience, while not mentioned in the job

announcement as a specific requirement for the job, is certainly a “relevant” consideration in the

discretionary hiring process for the position of Chief Community Corrections Field Operations

officer. As we recently noted in Browning v. Dept. of the Army, 436 F.3d 692, 696-97 (6th Cir.

2006):

         [T]his court has held that employers are not rigidly bound by the language in a job
         description. Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987). As explained in Wrenn,
         employment-discrimination laws do “not diminish lawful traditional management
         prerogatives in choosing among qualified candidates,” and an employer has “great
         [ ] flexibility in choosing a management-level employee.” Id. at 502 (holding that
         an employer can consider factors external to a job description when selecting among
         qualified candidates (citation and quotation marks omitted). The Wrenn court further
         held that “the employer’s motivation, not the applicant’s perceptions, or even an
         objective assessment [ ] of what qualifications are required for a particular position,”
         is key to the discrimination inquiry. Id. at 502. See also Aka v. Washington Hospital
         Center, 156 F.3d 1284, 1297 n.15 (D.C. Cir. 1998), where the D.C. Circuit observed
         that[:]

         “reasonable employers do not ordinarily limit their evaluation of applicants to a
         mechanistic checkoff of qualifications required by the written job descriptions.
         Obviously, they will take additional credentials into account, if those credentials
         would prove useful in performing the job.”

         Here, defendant followed all requirements of the merit system rules and affirmative action

and equal employment opportunity policies in the hiring process for the Chief of Community

Corrections Field Operations position. Plaintiff has presented no evidence that defendant improperly

judged the qualifications of the candidates or made the hiring selection with underlying illegal

motivations. Although plaintiff alleges Title VII and ELCRA mandated that he be afforded an



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interview, there simply is no such requirement. The department head, Ms. Hankey, acted within

“lawful traditional management prerogatives in choosing among qualified candidates.” Wrenn, 808

F.2d at 502. In doing so, she winnowed down the application pool to the most qualified candidates

and interviewed six applicants, three of whom were minorities. She unequivocally testified that she

chose not to interview plaintiff in light of his complete lack of criminal justice experience.

Conversely, Gatt’s extensive criminal justice background tipped the scales heavily in his favor.

       It is readily apparent from the record that Gatt was better qualified for the position than

plaintiff. “So long as its reasons are not discriminatory, an employer is free to choose among

qualified candidates.” Id. at 502. See, e.g., Nickell v. Memphis Light, Gas & Water Div., 16 F.

App’x 401, 402-03 (6th Cir. 2001) (unpublished) (concluding that because the plaintiff was less

qualified in all relevant respects for the vacant position than the successful applicant, he failed to

demonstrate that he was similarly situated and thus did not make out a prima facie Title VII case),

cert. den. 536 U.S. 922 (2002); cf., White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 243-44

(6th Cir. 2005), and Leadbetter v. Gilley, 385 F.3d 683, 691-92 (6th Cir. 2004) (both concluding in

context of failure to promote discrimination claims that because the successful candidates had

superior experience and qualifications regarding material and relevant aspects of vacant job

openings, plaintiffs were not similarly situated to successful candidates as required to meet the

fourth prong of the prima facie burden). Under the present circumstances, summary judgment was

appropriately granted to defendant.




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                                               V.

       For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor

of defendant.




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        DAVID A. NELSON, Circuit Judge, concurring in judgment. It seems to me that the

plaintiff probably carried his not-very-arduous burden of establishing a prima facie case. Three of

the six people selected for job interviews had never worked in the criminal justice system, and that

fact, coupled with the failure of the county to list criminal justice experience as a requirement for

the job, suggests to me that the county itself assumed that a qualified applicant without criminal

justice experience could be comparable to a qualified applicant with such experience. The county

articulated a legitimate reason for its final selection, however, and I agree with the district court that

the stated reason was not shown to have been a pretext for race discrimination. This conclusion is

consistent with our recent decision in Browning v. Dept. of the Army, 436 F.3d 692 (6th Cir. 2006),

a case that was resolved at the final stage of the burden-shifting analysis. I would affirm the

judgment in the present case on the same basis.




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