                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0727n.06

                                                  No. 13-2569                                          FILED
                                                                                                Sep 16, 2014
                               UNITED STATES COURT OF APPEALS                               DEBORAH S. HUNT, Clerk
                                    FOR THE SIXTH CIRCUIT


SUSAN PHILBRICK,                             )
   Plaintiff-Appellant,                      )
                                             )
                                             )        ON APPEAL FROM THE UNITED STATES DISTRICT
                    v.                       )        COURT FOR THE EASTERN DISTRICT OF
                                             )        MICHIGAN
                                             )
                                             )
ERIC HOLDER, JR.,                            )                                OPINION
Attorney General,                            )
                                             )
      Defendant-Appellee.                    )

        Before: COOK and GRIFFIN, Circuit Judges; and RICE, District Judge.*

        RICE, District Judge. Susan Philbrick, an employee of the United States Marshals

Service, appeals from the district court’s order granting Attorney General Eric Holder, Jr.=s,

motion for summary judgment. She maintains that she was discriminated against on the basis of

sex and race when she was passed over for a promotion in 2009. She also maintains that she was

discriminated against on the basis of sex and was retaliated against for having filed a complaint of

discrimination with the Equal Employment Opportunity Commission when she was passed over

for a subsequent promotion in 2011. For the reasons set forth below, we AFFIRM IN PART and

REVERSE AND REMAND IN PART.

                                                         I.

        Susan Philbrick, a white female, has been employed by the United States Marshals Service

(AUSMS@) since 1989. She served as a Supervisory Deputy United States Marshal in the Western

District of Michigan from 1998 until 2001, and has served in that same role in the Eastern District

         *The Honorable Walter H. Rice, United States District Judge for the Southern District of Ohio, sitting by
designation.
Case No. 13-2569, Philbrick v. Holder

of Michigan since 2002. In April of 2009, Philbrick applied for a position as Assistant Chief

Deputy U.S. Marshal (AACDUSM@) in the Eastern District of Michigan.

       Pursuant to the Merit Promotion Selection Process, after a vacancy is posted, the Human

Resources division of the USMS develops a list of the best qualified candidates for that position.

Each applicant is assigned a numerical score based on education, experience, training, and awards.

This score is combined with the applicant=s score on the merit promotion examination to create a

package score. This package score is used only to develop a list of the best qualified candidates; it

is not shared with anyone else involved in the hiring decision. The best qualified candidates then

participate in a structured interview, during which they are evaluated by a three-person panel for

perception, decisiveness, judgment, leadership, organization and planning, adaptability,

interpersonal skills, and oral communication.

       The U.S. Marshal for the district where the vacancy exists then reviews the resumes and

interview ratings of the best qualified candidates, ranks them, and makes a recommendation to the

Career Board. The Career Board consists of USMS law enforcement employees appointed by the

Director of the USMS (Athe Director@). It meets about four times each year and reviews the

recommendations for 45-100 job vacancies at each meeting. In order to expedite the process, the

chairperson of the Career Board assigns one APresenter@ for each vacancy. The Presenter is

charged with reviewing the resumes, interview ratings, and the Marshal=s recommendation for the

open position, and making his or her own recommendation to Career Board. In turn, the Career

Board makes a recommendation to the Director, who makes the final decision.

       When Philbrick applied for the ACDUSM position in 2009, she had the highest package

score of all of the applicants. In addition, her supervisor, Marshal Robert Grubbs, ranked her first


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Case No. 13-2569, Philbrick v. Holder

among the five best qualified applicants and recommended that she be hired. Grubbs ranked

Thomas Smith second and Roberto Robinson third.

       Robert Fagan, the chairperson of the Career Board, assigned himself as the Presenter for

this position. Fagan, however, did not follow Marshal Grubbs= recommendation. Instead, he

recommended Roberto Robinson, a Hispanic male, for the position. The Career Board and

Director John Clark followed suit, and Robinson was hired as the ACDUSM for the Eastern

District of Michigan. On July 27, 2009, Philbrick filed a complaint with the Equal Employment

Opportunity Commission (AEEOC@), alleging that she was denied the promotion based on race and

gender discrimination.

       In November of 2009, Philbrick became the subject of an Internal Affairs investigation

after being accused of improperly recommending her niece for a position with the agency. This

investigation was still ongoing in January of 2011 when Roberto Robinson received another

promotion and was appointed Chief Deputy U.S. Marshal in the Northern District of Ohio. When

the opening for his ACDUSM position in the Eastern District of Michigan was posted, Philbrick

again applied.

       On January 31, 2011, the EEOC commenced a hearing on Philbrick=s charge of

discrimination arising from her non-promotion in April of 2009. At that hearing, Marshal Grubbs

was harshly cross-examined by counsel for the agency concerning his motives for recommending

Philbrick for the promotion and the procedures he followed. The hearing was continued until

March 28, 2011.

       In the meantime, on March 4, 2011, Marshal Grubbs recommended Mark Jankowski, a

white male, for the open ACDUSM position. Grubbs ranked Philbrick third among the best



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Case No. 13-2569, Philbrick v. Holder

qualified candidates, behind Jankowski and ACandidate 85.@ Grubbs then received notice that,

due to Philbrick=s pending EEO charge, the position would be held in abeyance pending

completion of those proceedings.

        Grubbs was subsequently given a new list of best qualified candidates for the ACDUSM

position. This time, he ranked Jankowski first and Philbrick second. John Clark was assigned as

the Presenter.1 Clark recommended Jankowski to the Career Board. In turn, the Career Board

recommended Jankowski to Director Stacia Hylton, who appointed Jankowski to fill the position.

        On September 19, 2011, Philbrick filed another complaint with the EEOC, alleging gender

discrimination and retaliation in connection with the most recent failure to promote her. Philbrick

later filed suit against her employer, Attorney General Eric Holder, Jr. Her Amended Complaint

alleged race and gender discrimination in connection with her 2009 non-promotion and gender

discrimination and retaliation in connection with her 2011 non-promotion.

        The district court granted the Attorney General=s motion for summary judgment in its

entirety, finding no genuine issue of material fact on any of Philbrick=s claims. Philbrick now

appeals that decision.

                                                        II.

        We review de novo a district court’s ruling on a motion for summary judgment. Bickley v.

Dish Network, LLC, 751 F.3d 724, 728 (6th Cir. 2014). Federal Rule of Civil Procedure 56(a)

provides that summary judgment is proper Aif the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.@ We must view

facts in the record and reasonable inferences that can be drawn from those facts in the light most

        1
            This John Clark is not the same John Clark who was the Director of the USMS when Robinson was hired in
2009.

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Case No. 13-2569, Philbrick v. Holder

favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We do not weigh evidence, assess credibility of

witnesses, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

                                                  III.

          Title VII of the Civil Rights Act of 1964 prohibits federal agencies from employment

discrimination Abased on race, color, religion, sex, or national origin.@ 42 U.S.C. ' 2000eB16(a).

It is a violation of Title VII to fail to promote an employee because of his or her membership in a

protected class. See, e.g., White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir.

2005).

          A plaintiff may establish a claim of discrimination either by presenting direct evidence of

discrimination or by presenting circumstantial evidence that would support an inference of

discrimination. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). Where, as here,

the claim is based on circumstantial evidence, we use the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802B04, 93 S. Ct. 1817, 36 L. Ed.2d 668

(1973).

          Under that framework, a plaintiff must first establish a prima facie case of discrimination,

the elements of which vary slightly depending on the theory asserted. To establish a prima facie

case of discrimination based on a Afailure to promote@ theory, 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 was denied the promotion; and (4) an
          individual of similar qualifications who was not a member of the protected class
          received the job at the time plaintiff's request for the promotion was denied.




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Case No. 13-2569, Philbrick v. Holder

White, 429 F.3d at 240. A plaintiff=s burden at the prima facie stage is Anot onerous.@ Tex. Dep't

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed.2d 207 (1981).

       If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the

defendant to offer evidence of a legitimate, nondiscriminatory reason for its adverse action. If the

defendant satisfies its burden, the burden shifts back to the plaintiff to identify evidence from

which a reasonable jury could find that the stated reason is a pretext for discrimination. Pretext is

demonstrated Aby 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.@ Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).

       In order Ato survive summary judgment, a plaintiff need only produce enough evidence to

support a prima facie case and to rebut, but not to disprove, the defendant=s proffered rationale.@

Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012) (quoting Blair v. Henry Filters, Inc.,

505 F.3d 517, 532 (6th Cir. 2007)). The plaintiff is not required to also produce evidence that

discrimination was the real reason for the adverse employment action. Id. See also Hamilton v.

Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (A[W]e do not routinely require plaintiffs to

submit evidence over and above rebutting the employer=s stated explanation in order to avoid

summary judgment.@) (internal quotation marks omitted). As the Supreme Court noted in Reeves

v. Sanderson Plumbing Products, Inc.:

       [A] plaintiff's prima facie case, combined with sufficient evidence to find that the
       employer's asserted justification is false, may permit the trier of fact to conclude
       that the employer unlawfully discriminated.
       This is not to say that such a showing by the plaintiff will always be adequate to
       sustain a jury's finding of liability. Certainly there will be instances where, although
       the plaintiff has established a prima facie case and set forth sufficient evidence to
       reject the defendant's explanation, no rational factfinder could conclude that the
       action was discriminatory.

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Case No. 13-2569, Philbrick v. Holder


530 U.S. 133, 148, 120 S. Ct. 2097, 2109, 147 L. Ed. 2d 105 (2000).

                                                A.

       Philbrick maintains that she was discriminated against on the basis of race and gender in

connection with the 2009 ACDUSM promotion when Roberto Robinson, a Hispanic male, was

selected instead of her.

       1. Reverse Race Discrimination

       The district court granted summary judgment in favor of the Attorney General on

Philbrick=s reverse race discrimination claim. Noting that A[a]n employer cannot intentionally

discriminate against an individual on the basis of race if he is unaware of that individual's race,@

Johnson v. N.W. Airlines, No. 94-1076, 1995 WL 242001, at *3 (6th Cir. Apr. 24, 1995), the court

found that Philbrick had failed to create a genuine issue of material fact concerning whether

Director John Clark, the ultimate decision-maker, knew that she was Caucasian. Philbrick

claimed that she had briefly met Clark on one occasion several years earlier. Clark, however,

testified that he had no memory of meeting her.

       On appeal, Philbrick argues that because Presenter Fagan was the de facto decision-maker,

the relevant question is whether Fagan knew that she was Caucasian. See Staub v. Proctor Hosp.,

131 S. Ct. 1186, 1192 (2011) (discussing the Acat=s paw@ theory of liability). Although she does

not allege that Fagan knew her personally, she claims that Fagan should have inferred that she was

Caucasian based solely on USMS workforce demographic statistics.              Workforce statistics,

however, are insufficient to create a genuine issue of material fact concerning whether Fagan knew

that Philbrick was Caucasian. The district court properly found that Philbrick failed to create a

genuine issue of disputed fact concerning whether the decision-makers were aware of her race.

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Case No. 13-2569, Philbrick v. Holder

       When Robinson was selected for the position instead of Philbrick, Grubbs speculated that

perhaps the agency was trying to right past wrongs in terms of discrimination against minorities.

Fagan allegedly knew that Robinson was Hispanic because Robinson was formerly in Fagan=s

chain-of-command. Fagan and Clark admit that diversity is considered in every hiring decision

but contend that Robinson was selected not because of his race but because of his superior

qualifications.

       Even if the decision-makers did know that Philbrick was Caucasian, summary judgment

would still be warranted on this claim. Given that this is a case involving a claim of reverse race

discrimination, Philbrick faces a higher burden. In order to establish a prima facie case of reverse

race discrimination, she must show Abackground circumstances [to] support the suspicion that the

defendant is that unusual employer who discriminates against the majority.@            Zambetti v.

Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir. 2002) (quoting Murray v. Thistledown Racing

Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)). Here, Philbrick presented no evidence to support

such a finding.

       For all of these reasons, the district court properly granted summary judgment in favor of

the Attorney General on Philbrick=s claim of reverse race discrimination.

       2. Gender Discrimination

       Philbrick also argues that she was discriminated against in connection with the

2009 promotion on the basis of her gender. Because she has no direct evidence of gender

discrimination, the McDonnell Douglas burden-shifting framework applies.            The first three

elements of Philbrick=s prima facie case are undisputed. At issue is whether Philbrick and

Robinson had similar qualifications for the ACDUSM position.


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Case No. 13-2569, Philbrick v. Holder

The Attorney General argued that Philbrick could not establish a prima facie case of

discrimination because she could not show that she and Robinson were similarly qualified. The

district court assumed, without deciding, that Philbrick had established a prima facie case of

discrimination and moved on to the next stages of the McDonnell Douglas analysis.

       On appeal, the Attorney General contends that, because Philbrick cannot satisfy the fourth

element of her prima facie case, the district court need not have inquired any further. He invites

the court to engage in a detailed comparison of the relative qualifications of Philbrick and

Robinson. However, at the prima facie stage, the court compares the qualifications of the two

applicants in very general terms, leaving the more rigorous analysis for the later stages of the

McDonnell Douglas test. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 813B14 (6th Cir.

2011). In this case, Philbrick and Robinson both had considerable training and experience, both

were on the list of Abest qualified@ candidates, and both were ranked among the top three

candidates by Marshal Grubbs. Under these circumstances, the district court properly assumed,

without deciding, that Philbrick had established a prima facie case of gender discrimination.2 Id.

at 814 (holding that although the candidates had different strengths and weaknesses, their

education and experience made them similarly qualified for purposes of a prima facie case).



       2
         The district court also properly refused to address the Attorney General=s argument that
Philbrick could not establish a prima facie case of gender discrimination because she admitted that
Thomas Smith, a similarly-situated male whom Grubbs ranked second, was also passed over for
the promotion in favor of Robinson. Citing Zambetti, 314 F.3d at 255, the Attorney General
argued that, under the fourth prong of the prima facie case, Philbrick must show that a
similarly-situated male, i.e., Thomas Smith, was treated differently than she was. For purposes of
establishing a prima facie case, however, the relevant question is whether Philbrick and
RobinsonCthe person who was selected for the positionCpossessed similar qualifications. See
Provenzano, 663 F.3d at 814 (AIn a failure to promote claim, the emphasis in the fourth element is
on the relative qualifications of the plaintiff and the employee who actually received the promotion.@).

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   Case No. 13-2569, Philbrick v. Holder

          The district court then found that the Attorney General had articulated a legitimate,

   non-discriminatory reason for selecting Robinson for the ACDUSM position. More specifically,

   the Attorney General presented evidence that Robinson was selected because he had better

   interview scores and was perceived to have a more well-rounded background. The district court

   then concluded that Philbrick had failed to present sufficient evidence from which a reasonable

   jury could find that the proffered reason was pretextual. It therefore granted summary judgment

   in favor of the Attorney General on Philbrick=s claim of gender discrimination.

          On appeal, Philbrick argues that genuine issues of material fact preclude summary

   judgment on this claim.      We agree.     Philbrick maintains that she was the better qualified

   candidate and should have been selected instead of Robinson. In Ash v. Tyson Foods, Inc., 546

   U.S. 454, 457, 126 S. Ct. 1195, 163 L. Ed.2d 1053 (2006), the Supreme Court held that

   Aqualifications evidence may suffice, at least in some circumstances, to show pretext.@ In most

   situations, an employer wants to hire the best qualified candidate. If an applicant is significantly

   better qualified than the competition, but not selected, it can be inferred that discrimination played

   a part in the decision. Hamilton, 666 F.3d at 1352 (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,

   1294 (D.C. Cir. 1998) (en banc)).

          ARelative qualifications establish triable issues of fact as to pretext where the
          evidence shows that either (1) the plaintiff was a plainly superior candidate, such
          that no reasonable employer would have chosen the latter applicant over the
          former, or (2) plaintiff was as qualified as if not better qualified than the successful
          applicant, and the record contains >other probative evidence of discrimination.=@
          Bartlett v. Gates, 421 Fed. Appx. 485, 490B91 (6th Cir. 2010) (citing Bender v.
          Hecht's Dep't Stores, 455 F.3d 612, 627B28 (6th Cir. 2006)).

Provenzano, 663 F.3d at 815.




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Case No. 13-2569, Philbrick v. Holder

        Here, Philbrick=s claim survives summary judgment because she was the plainly superior

candidate. As previously noted, Philbrick=s package score was the highest of all of the applicants,

although this fact was not shared with any of the relevant decision-makers.               Admittedly,

Robinson performed better than Philbrick in the interview. Philbrick received five Aaverage@ and

three Aweak@ interview ratings; Robinson received five Astrong@ and three Aaverage@ ratings.

However, because these ratings are inherently subjective, they deserve careful scrutiny. Rowe v.

Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir. 1982).

        After reviewing the interview scores and the resumes, Marshal Grubbs recommended that

Philbrick be selected for the job. She had twenty years of experience with the USMS, including

eleven years as a Supervisory Deputy U.S. Marshal and a stint as Acting ACDUSM. Not only

had she worked as a supervisor in two different districts, but she had significant supervisory

experience in each of the areas that the ACDUSM job entails: judicial security, court security,

prisoner operations, enforcement, and asset forfeiture.        She had also performed numerous

collateral duties.    Moreover, she had initiated and implemented the Detroit Fugitive

Apprehension Team, which was very successful. Grubbs also factored in Philbrick=s strong

leadership skills, interpersonal skills, and dedication to the job, along with her existing ties to the

District.

        In comparison to Philbrick, Robinson had only twelve years of experience with the USMS

and only three years of experience as a Supervisory Deputy U.S. Marshal. He had not performed

nearly as many collateral duties as Philbrick and had no ties to the Eastern District of Michigan.

He had little or no experience supervising judicial security or enforcement. However, he had

assisted in evacuation, rescue, and recovery efforts during the 9/11 terrorist attacks, was a training


                                                  11
Case No. 13-2569, Philbrick v. Holder

officer for TDY Inspectors at USMS headquarters, and acted as a Contract Officer Technical

Representative. In addition, he had Top Secret clearance and was working as a Supervisory

Deputy U.S. Marshal in a large sub-office in Fort Lauderdale.

        Even if Robinson arguably had a broader overall range of experience than Philbrick did,

she clearly had significantly more relevant supervisory experience.             From an objective

standpoint, she was a plainly superior candidate, such that no reasonable employer would have

chosen Robinson over her. As such, there is a triable issue of fact as to pretext. Provenzano,

663 F.3d at 815. This is particularly true, given Fagan=s concession at the EEOC hearing that

Philbrick was better qualified than Robinson.

        Even if Philbrick was not the Aplainly superior@ candidate, she was at least as qualified as

Robinson, there is other evidence in the record from which a reasonable jury could find that the

Attorney General=s explanation for selecting Robinson is unworthy of belief. See Hamilton, 666

F.3d at 1352 (noting that other flaws in the employer=s explanation may also be indicative of

pretext).

        Evidence shows that 91B96% of the time, the Presenter adopts the U.S. Marshal=s

recommendation, the Career Board adopts the Presenter=s recommendation, and the Director

adopts the Career Board=s recommendation. Although no one is bound by the recommendation

made at the lower level, it is the exception rather than the rule that the candidate recommended by

the Marshal is not selected to fill the position. Grubbs testified that on the few occasions that his

recommendation was not followed, he was contacted to discuss the applicants before any final

decision was made. In this case, no one contacted him before rejecting his recommendation.

These procedural irregularities are not determinative, but they do arouse suspicion of pretext.


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Case No. 13-2569, Philbrick v. Holder

       A reasonable jury could find that Fagan was the de facto decision-maker in this case. As

was usually the case, his recommendation was followed by the Career Board and by the Director.

Although the Career Board and the Director have access to the same application materials the

Presenter does, evidence shows that their review of those materials is generally not nearly as

thorough as the Presenter=s.    Here, Director Clark testified that if the Career Board had

recommended Philbrick, he would have followed that recommendation.

In Fagan=s notes for his presentation to the Career Board, he wrote that he was recommending

Robinson rather than Philbrick because Philbrick had worked her whole career in Detroit and had

not interviewed as well, and because Robinson was more well-rounded, having served as a

Supervisory Deputy U.S. Marshal in Miami and Fort Lauderdale and at USMS headquarters.

Fagan has subsequently admitted that he mistakenly overlooked Philbrick=s supervisory

experience in the Western District of Michigan.        He has also admitted that Robinson=s

supervisory experience pales in comparison to Philbrick=s, and that Robinson had no major

accomplishments comparable to Philbrick=s initiation of the fugitive task force. At the EEOC

hearing, Fagan conceded that Philbrick was Athe more qualified@ candidate.

       Fagan nevertheless attempted to justify his recommendation by citing to alleged flaws in

Philbrick=s resume and Grubbs=s recommendation.       In hindsight, he argues that Philbrick=s

application did not adequately highlight all of her accomplishments, and that Grubbs=s

recommendation was Atoo vague.@ He testified that but for these inadequacies, he Awould have

definitely, definitely recommended Ms. Philbrick.@     Fagan admits, however, that based on

Philbrick=s resume, and particularly her service as an Acting ACDUSM, he could infer the breadth




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Case No. 13-2569, Philbrick v. Holder

of her experience. As to the claim that Grubbs=s recommendation was Atoo vague,@ Fagan admits

that he has sometimes chosen candidates with much less specific recommendations.

       Typically, the court allows an employer wide leeway in determining relevant hiring

criteria, particularly when selecting management personnel. See Browning v. Dep=t of the Army,

436 F.3d 692, 698 (6th Cir. 2006). Nevertheless, the court will not blindly accept an employer=s

alleged business judgment in the face of a claim of discrimination. Wexler v. White=s Fine

Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003).

       Under the Ahonest belief@ rule, if the employer honestly, but mistakenly, believes in the

proffered reason given for the hiring decision at issue, then the employee cannot establish the

requisite pretext. Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). However, in order

to establish an honestly held belief, the employer must produce evidence that it made a Areasonably

informed and considered decision.@ Id. at 807. If the asserted business judgment is so Aridden

with error@ that the employer could not have honestly relied on it, pretext may be shown. In re

Lewis, 845 F.2d 624, 633 (6th Cir. 1988) (quoting Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir.

1980)). See also Smith, 155 F.3d at 807 (noting that the relevant inquiry is whether the error was

Atoo obvious to be unintentional@).

       Here, Philbrick has presented sufficient evidence from which a reasonable jury could find

that Fagan did not make a reasonably informed and considered decision that Robinson was the

better qualified candidate, and that the proffered reason for selecting Robinson is unworthy of

belief. Fagan=s summary rejection of Grubbs=s recommendation, his significant oversights in

comparing the qualifications of the two candidates, and his shifting explanations for why he

recommended Robinson instead of Philbrick, combine to create triable issues of fact.           See


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Case No. 13-2569, Philbrick v. Holder

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

changing rationale for making an adverse employment decision can be evidence of pretext.@).

       According to the dissent, the irregularities in the selection process, Fagan=s oversights

concerning Philbrick=s qualifications, and his alleged reasons for not accepting Grubbs=s

recommendation do not constitute evidence of illegal discrimination, but are instead

Aqualifications evidence, repurposed by plaintiff as evidence of discrimination.@ We disagree.

As this court held in Jenkins v. Nashville Public Radio, 106 F. App=x 991 (6th Cir. 2004), cited and

distinguished by the court in Bender, 455 F.3d at 627, evidence of Airregularities in the application

and selection process@ and Ainconsistencies in the reasons given by [the employer] for not hiring

[plaintiff],@ along with Aevidence of her allegedly superior qualifications, which, if believed by the

trier of fact, could lead to the conclusion@ that the plaintiff was discriminated against, is sufficient

to raise a genuine issue of material fact concerning pretext. Jenkins, 106 F. App=x at 995.

       Admittedly, Philbrick points to little evidence of a gender-based discriminatory animus.

Nevertheless, as the Supreme Court noted in Reeves, Aonce the employer's justification has been

eliminated, discrimination may well be the most likely alternative explanation, especially since the

employer is in the best position to put forth the actual reason for its decision.@ 530 U.S. at 147.

Although this is a close call, we must draw all reasonable inferences in Philbrick=s favor. It may

be inferred that the relevant decision-makers knew that Philbrick was a female based on her first

name, Susan. In light of Fagan=s admission that Philbrick had superior qualifications, we believe

that a reasonable jury could find that Philbrick was a victim of gender discrimination. We

therefore reverse the district court’s order granting summary judgment in favor of the Attorney

General on Philbrick=s claim of gender discrimination in connection with the 2009 promotion.


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Case No. 13-2569, Philbrick v. Holder

                                               B.

       Philbrick also maintains that she was again discriminated against on the basis of gender

when she was passed over for the ACDUSM promotion in 2011, this time in favor of Mark

Jankowski. Grubbs recommended that Jankowski be offered the position. Presenter John Clark

and the Career Board concurred in that recommendation, as did Director Stacia Hylton.

       Again, the district court appears to have assumed, without deciding, that Philbrick could

establish a prima facie case of gender discrimination. The court found that the Attorney General

had articulated legitimate, non-discriminatory reasons for hiring Jankowski instead of Philbrick, in

that Grubbs believed that Jankowski was better qualified. He touted Jankowski=s experience,

leadership abilities, judgment, and organizational skills. Presenter Clark also testified that, in his

opinion, Jankowski had a stronger resume. Grubbs further believed that Philbrick was ineligible

for promotion due to the pending Internal Affairs investigation involving her niece.

       The district court found that Philbrick had failed to establish a genuine issue of material

fact as to whether the proffered reasons were pretextual. On appeal, Philbrick argues that the

district court erred in so finding. Notably, however, Philbrick devotes very little of her appellate

brief to this claim of gender discrimination.         She concedes that, with respect to the 2011

promotion, her Aprincipal contention@ is that she was denied the promotion in retaliation for filing

her EEOC charge.

       For the reasons set forth in the next section of this opinion, we find that Philbrick has

presented sufficient evidence from which a reasonable jury could find that the proffered reasons

for hiring Jankowski were pretextual. Nevertheless, this is one of those cases discussed in Reeves

where Aalthough the plaintiff has established a prima facie case and set forth sufficient evidence to


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Case No. 13-2569, Philbrick v. Holder

reject the defendant's explanation, no rational factfinder could conclude that the action was

discriminatory.@ 530 U.S. at 148.

       Indeed, the only evidence of gender discrimination identified by Philbrick is Grubbs=s

statement that Jankowski is a Astronger field general.@ Philbrick maintains that this indicates sex

stereotyping. This singular characterization is woefully insufficient to create a genuine issue of

material fact concerning whether Philbrick was denied the promotion because she is a woman.

Moreover, the fact that Grubbs recommended Philbrick for the promotion in 2009 cuts against a

finding that he had a discriminatory animus in recommending Jankowski in 2011. In Wexler, we

held that one can infer a lack of discrimination from the fact that the same individual both hired

and fired the employee. 317 F.3d 564, 572B73 (6th Cir. 2003). This Asame actor@ inference can

logically be extended to this situation.    Having previously recommended Philbrick for the

2009 promotion, it can be inferred that Grubbs, whose 2011 recommendation was adopted by the

ultimate decision-maker, had no gender-based discriminatory animus.

       For these reasons, we affirm the district court’s decision to grant summary judgment in

favor of the Attorney General on Philbrick=s claim of gender discrimination in connection with the

2011 failure to promote.

                                             IV.

       Finally, Philbrick alleges that she was passed over for the 2011 promotion in retaliation for

having filed a charge of race and gender discrimination with the EEOC in 2009. Title VII makes

it unlawful for an employer to retaliate against an employee because that employee opposed a

discriminatory practice or made a charge of discrimination. 42 U.S.C. ' 2000e-3(a). As with a




                                                17
Case No. 13-2569, Philbrick v. Holder

claim of discrimination, a plaintiff may establish a claim of retaliation either through direct or

circumstantial evidence, using the same McDonnell Douglas burden-shifting framework.

       In the absence of direct evidence of retaliation, a plaintiff may establish a prima facie case

of retaliation under Title VII by demonstrating that: A(1) he engaged in activity protected by Title

VII; (2) his exercise of such protected activity was known by the defendant; (3) thereafter, the

defendant took an action that was >materially adverse= to the plaintiff; and (4) a causal connection

existed between the protected activity and the materially adverse action.@ Laster v. City of

Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quoting Jones v. Johanns, 264 F. App=x 463, 466

(6th Cir. 2007). With respect to the Acausal connection,@ the plaintiff must establish that Abut for@

the protected activity, the materially adverse action would not have occurred. Univ. of Tex. S.W.

Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2532B33 (2013).

       If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer

to articulate a legitimate, non-retaliatory reason for the adverse action. If the defendant satisfies

its burden, the plaintiff must then demonstrate that the stated reason is pretextual. Laster,

746 F.3d at 730.

       Here, the first three elements of the prima facie case are undisputed. The district court,

however, found insufficient evidence of any causal connection between Philbrick=s filing of the

EEOC charge and the failure to promote her in 2011. Philbrick argued that Grubbs testified at her

EEOC hearing on January 31, 2011, and was subject to harsh cross-examination by counsel for the

USMS concerning the allegedly improper bases for Grubbs=s recommendation that Philbrick be

hired for the ACDUSM position in 2009 and Grubbs=s alleged failure to follow agency

interviewing policies.      Grubbs was also chastised for having told Philbrick of his


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Case No. 13-2569, Philbrick v. Holder

recommendation before the Director made a final decision. Other USMS employees were also

required to testify at the hearing. Less than five weeks after the hearing, on March 4, 2011,

Grubbs submitted his recommendation for the again-vacant ACDUSM position. This time, he

ranked Philbrick third, below Jankowski and Candidate 85. Philbrick maintains that Grubbs felt

pressured by his superiors to recommend someone other than her.

        The district court acknowledged that, in some cases, temporal proximity between the

adverse employment action and the protected activity may be enough to establish the requisite

causal connection. See, e.g., Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)

(AWhere an adverse employment action occurs very close in time after an employer learns of a

protected activity, such temporal proximity between the events is significant enough to constitute

evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.@).

        The district court found, however, that the adverse employment action at issue did not

occur until July of 2011, when Director Hylton made the final decision to hire Jankowski instead

of Philbrick. This widened the temporal gap from five weeks to six months, which the court

found to be too long to establish the requisite causal connection. The court further noted that

Grubbs revised his rankings in May of 2011, upgrading Philbrick=s ranking from third to second.

        On appeal, Philbrick argues that the district court erred in finding that she had failed to

create a genuine issue of material fact concerning the requisite causal connection. We agree. As

an initial matter, the district court erred in establishing July of 2011, the date the final decision was

made to hire Jankowski, as the date of the adverse employment action. In Hamilton, the court

held that it was appropriate to consider when the employer Atook a first step toward the adverse

action.@   666 F.3d at 1358.       In this case, the Afirst step@ was Grubbs=s March 4, 2011,


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Case No. 13-2569, Philbrick v. Holder

recommendation, when he ranked Philbrick third, behind Jankowski and Candidate 85. The fact

that he subsequently revised his recommendation, ranking her second, behind Jankowski, is

largely irrelevant given that Jankowski was still his top pick and that Presenter Clark, the Career

Board, and Director Hylton all followed his recommendation.

       Therefore, the question is whether the five-week gap between the January 31, 2011,

hearing, and the March 4, 2011, initial recommendation is close enough to establish a causal

connection. Standing alone, probably not. A[W]here some time elapses between when the

employer learns of a protected activity and the subsequent adverse employment action, the

employee must couple temporal proximity with other evidence of retaliatory conduct to establish

causality.@ Mickey, 516 F.3d at 525. See also Montell v. Diversified Clinical Servs., Inc., BF.3dB,

2014 WL 2898525, at *6 (6th Cir. June 27, 2014) (noting that Acombining temporal proximity with

other evidence of retaliatory conduct is enough to establish a causal connection@).

       Notably, the court may also consider evidence of pretext to buttress this prong of the prima

facie case. In Cantrell v. Nissan North America Inc., 145 F. App=x 99, 107 n.2 (6th Cir. 2005), we

noted the Aoverlap between the causal connection requirement and a showing that the proffered

reason for termination was not the actual reason,@ and held that, in retaliation cases, the same type

of evidence may be used to prove both.

       Drawing all reasonable inferences in favor of Philbrick and considering not only the

temporal proximity but also the evidence that the proffered reason for hiring Jankowski was

pretextual, as discussed below, we find that there is a genuine issue of material fact concerning the

requisite causal connection. Based on the evidence presented, a reasonable jury could find that,

but for the fact that Philbrick filed the EEOC charge of discrimination, Grubbs would have


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Case No. 13-2569, Philbrick v. Holder

recommended her for the ACDUSM vacancy, and she would have been selected for the job.

Presenter Clark testified that he would have concurred had Grubbs recommended Philbrick

instead. Likewise, Director Hylton testified that she would have selected Philbrick had the Career

Board so recommended. We therefore conclude that Philbrick has established a prima facie case

of retaliation.

        The Attorney General satisfied his burden of articulating legitimate, non-retaliatory

reasons for selecting Jankowski instead of Philbrick. As noted earlier, Grubbs cited two such

reasons: (1) Jankowski was better qualified; and (2) Grubbs believed that Philbrick was ineligible

for promotion due to the pending Internal Affairs investigation.

        Where the employer asserts more than one reason for the adverse employment decision,

the plaintiff must prove that each reason is pretextual. Smith, 155 F.3d at 806. With respect to

the first reason asserted, Jankowski=s allegedly superior qualifications, Philbrick seeks to establish

pretext by showing that this did not actually motivate the decision. She contends that the

circumstantial evidence makes it more likely than not that retaliation was the true reason she was

not promoted. Philbrick maintains that, based on the harsh cross-examination Grubbs endured by

USMS counsel at the EEOC hearing, he felt compelled to recommend someone else for the

vacancy.

        In March of 2011, Grubbs ranked Philbrick not only behind Jankowski, but also behind

Candidate 85, whose qualifications were clearly inferior to hers. Notably, when he revised his

rankings in May of 2011, Grubbs ranked Candidate 85 behind Candidate 84, who had no

supervisory experience at all. Philbrick notes that Grubbs initially denied ranking her below




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Case No. 13-2569, Philbrick v. Holder

Candidate 85 but was later forced to admit that he had. These rather suspicious rankings and

Grubbs=s attempted cover-up support a finding of pretext.

       There is other evidence from which a reasonable jury could find that Grubbs=s proffered

reasons for ranking Jankowski above Philbrick are unworthy of belief. Although Grubbs testified

that Deputy U.S. Marshal Lori Ciotti told him that she favored Jankowski over Philbrick, Ciotti

denies that Grubbs ever asked for her opinion. Grubbs also testified that USMS employee Russ

Tithof complained to him that Philbrick spent too much time in the gym and delegated supervisory

duties to subordinates. Tithof, however, denied making those statements.

       Chief Deputy U.S. Marshal James Andreski, who had supervised both Jankowski and

Philbrick in the past, told Grubbs that he thought that Philbrick was the better candidate. Even

though Andreski would be supervising whichever applicant was selected, Grubbs did not tell him

that he planned to recommend Jankowski instead. When Philbrick was passed over the second

time for a promotion, Andreski expressed his belief that Asomething stinks.@

       Viewing all of this evidence in light most favorable to Philbrick and drawing all reasonable

inferences in her favor, we find a genuine issue of material fact as to whether the Attorney

General=s claim that Jankowski was the better qualified candidate is pretextual.

       The court then turns to Grubbs=s second asserted reason for making the recommendation he

did. Grubbs testified that the Anumber one@ reason he recommended Jankowski over Philbrick

was his firm, but ultimately mistaken, belief that she was ineligible for a promotion because of the

pending internal affairs investigation concerning her niece. As previously noted, the Ahonest

belief@ rule is a viable defense only if the employer made a Areasonably informed and considered

decision.@ Smith, 155 F.3d at 807B08.


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Case No. 13-2569, Philbrick v. Holder

       Philbrick has presented evidence that even though she and ACDUSM Commins both asked

Grubbs to check to see if the pending investigation disqualified Philbrick from being considered

for promotion, Grubbs made no such inquiry. She also presented evidence that although Grubbs

later claimed that he was told by the Chief of Internal Investigations and by Human Resources

officers that Philbrick would be ineligible for a promotion, they have denied making any such

statements to Grubbs, and they agree that Philbrick would, in fact, be eligible for promotion

despite the pending investigation. Finally, Philbrick notes that even though Grubbs maintains

that she was ineligible for promotion, he did not tell her that. Instead, he actively misled her into

believing that she was a serious contender for the ACDUSM position despite the ongoing

investigation. Based on this evidence, a reasonable jury could find that Grubbs did not honestly

believe that the Internal Affairs investigation rendered Philbrick ineligible for promotion.

       Grubbs maintains that even if he thought that Philbrick was eligible for promotion, he

would have recommended Jankowski anyway based on his superior credentials. For reasons

previously discussed, there is a triable issue of fact concerning whether this proffered reason is

worthy of belief.

       Given that we find genuine issues of material fact with respect to a causal connection and

pretext, we reverse the district court’s order granting summary judgment in favor of the Attorney

General on Philbrick=s retaliation claim.

                                               V.

       In conclusion, we AFFIRM the district court’s order granting summary judgment in favor

of Defendant-Appellee Attorney General Eric Holder, Jr., with respect to Plaintiff-Appellant

Susan Philbrick=s claim of reverse race discrimination in connection with the 2009 promotion and



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Case No. 13-2569, Philbrick v. Holder

her claim of gender discrimination in connection with the 2011 promotion.         However, we

REVERSE the district court’s order granting summary judgment in favor of the Attorney General

with respect to Philbrick=s claim of gender discrimination in connection with the 2009 promotion

and her claim of retaliation in connection with the 2011 promotion, and REMAND for further

proceedings consistent with this opinion.




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Case No. 13-2569, Philbrick v. Holder

       GRIFFIN, Circuit Judge, concurring in part and dissenting in part.

       Balancing an employee’s right against illegal discrimination against the employer’s

prerogative to make fundamental managerial decisions regarding whom to hire, fire, and promote

is a central concern in employment discrimination cases. Our judicial duty requires us to reverse

violations of the law, not to place a thumb on the scale in favor of a particular employment

outcome. Indeed, we have cautioned our courts against adopting the “illegitimate role of acting

as . . . ‘super personnel department[s],’” when attempting to strike this balance. Bender v.

Hecht’s Dept. Stores, 455 F.3d 612, 627 (6th Cir. 2006) (citation omitted). In my view, the

majority crosses this line by impermissibly “overseeing and second guessing [the] employer[’s]

business decisions.” Id. Accordingly, I respectfully concur in part and dissent in part. I would

affirm the summary judgment granted in favor of the attorney general on all claims.

                                                 I.

       First, turning to plaintiff’s 2009 failure-to-promote claim, I disagree with the majority that

plaintiff has shown pretext based on her “plainly” superior qualifications. The leading Sixth

Circuit case addressing qualifications evidence in employment is Bender v. Hecht’s Department

Stores. Bender was decided shortly after Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). In Ash,

the Supreme Court addressed the Eleventh Circuit’s standard that “[p]retext can be established

through comparing qualifications only when the disparity in qualifications is so apparent as to

virtually jump off the page and slap you in the face.” Id. at 456–57 (emphasis added; citation

omitted). The Court rejected this formulation, noting that it had previously held, in Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981), that an employer

misjudging an applicant’s qualifications “may be probative” of whether the employer’s reasons for



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Case No. 13-2569, Philbrick v. Holder

the employment decision were pretext for discrimination. Id. at 457. Accordingly, the Ash

Court held that “qualifications evidence may suffice, at least in some circumstances, to show

pretext.” Id. However, the Court declined to “define more precisely what standard should

govern pretext claims based on superior qualifications.” Id. at 458.

        Bender addressed a relative-qualifications pretext claim post-Ash. Our court in Bender

explained that “acknowledging that evidence of comparative qualifications ‘may be probative’ of

pretext is a far cry from holding that such evidence is itself sufficient in all cases to raise a genuine

issue of fact of discriminatory motive.” Bender, 455 F.3d at 626. Bender thus explained what

was required of a plaintiff in a relative-qualifications case:

        Whether qualifications evidence will be sufficient to raise a question of fact as to
        pretext will depend on whether a plaintiff presents other evidence of
        discrimination. In the case in which a plaintiff does provide other probative
        evidence of discrimination, that evidence, taken together with evidence that the
        plaintiff was as qualified as or better qualified than the successful applicant, might
        well result in the plaintiff’s claim surviving summary judgment. On the other
        hand, in the case in which there is little or no other probative evidence of
        discrimination, to survive summary judgment the rejected applicant’s
        qualifications must be so significantly better than the successful applicant’s
        qualifications that no reasonable employer would have chosen the latter applicant
        over the former. In negative terms, evidence that a rejected applicant was as
        qualified or marginally more qualified than the successful candidate is insufficient,
        in and of itself, to raise a genuine issue of fact that the employer’s proffered
        legitimate, non-discriminatory rationale was pretextual.

Id. at 626–27 (citation omitted; emphasis added). See also id. at 627 (“[W]hen qualifications

evidence is all (or nearly all) that a plaintiff proffers to show pretext, the evidence must be of

sufficient significance itself to call into question the honesty of the employer’s explanation.”).

        In other words, a plaintiff may demonstrate pretext based on qualifications evidence using

one of two methods: (1) by showing that she was so significantly more qualified than the other

candidate that no reasonable employer would have chosen the other candidate (in which case other

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Case No. 13-2569, Philbrick v. Holder

evidence of discrimination is not required); or (2) by showing that she was as qualified or slightly

more qualified than the other candidate (in which case other evidence of discrimination is

required).

       Here, plaintiff Susan Philbrick argues that her “qualifications superiority was significant

enough to alone” demonstrate pretext.        In addition, she contends that the record contains

sufficient “other evidence” demonstrating illegal discrimination. The majority appears to accept

both arguments, holding that plaintiff prevails under the “so significantly better” standard and also

under the “other evidence” approach. I respectfully disagree.

       First, the evidence does not show that Philbrick’s qualifications were “so significantly

better than [Robinson’s] qualifications that no reasonable employer would have chosen” her over

Robinson. Bender, 455 F.3d at 627. Curiously, the majority concedes that Robinson had a

“broader overall range of experience” than Philbrick, yet simultaneously holds that plaintiff was

the “plainly superior candidate.” I agree with the majority that Robinson had a broader range of

experience than plaintiff—it is precisely for this reason that I disagree with the majority’s

conclusion. Philbrick’s and Robinson’s relative employment histories demonstrate that each had

significant experience. For example, although Robinson had worked for the Marshals Service for

eight fewer years than plaintiff, Robinson had nonetheless worked for the Marshals Service for

twelve years—hardly an insignificant amount of time. Although the majority accepts that

plaintiff had significantly more supervisory experience than Robinson, this is not altogether clear,

as career board member Fernando Karl testified that Robinson’s and plaintiff’s “overall

managerial experience . . . was fairly equal.”




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Case No. 13-2569, Philbrick v. Holder

       Moreover, even assuming that Philbrick had more supervisory experience than Robinson

and, having worked there for some time, had more ties to the particular district, Robinson had a

wider breadth of experiences. For example, Robinson had worked as a supervisor in a sub-office,

whereas plaintiff had not. Robinson worked with the Deputy Attorney General, whereas plaintiff

did not. Robinson had experience working at headquarters; plaintiff did not. He had assisted in

the recovery efforts following the September 11, 2001, terrorist attacks; plaintiff did not. Also,

Robinson was fluent in Spanish, whereas plaintiff’s resume listed no special language skills.

Robinson had experience working as a contract officer technical representative (COTR),

managing a $2.8 million contract, whereas plaintiff had no COTR experience and did not indicate

on her resume that she had managed any large budget amount. Furthermore, Robinson had a top

secret clearance; plaintiff did not. Finally, Robinson had worked in five different offices: Fort

Lauderdale, Miami, Arlington, Washington, and New York City. By contrast, Philbrick had

worked only in Michigan.

       Importantly, Philbrick concedes that Robinson’s interview scores were “significantly

higher” than hers. Indeed, Robinson had five “strong” interview ratings and three “average,”

whereas plaintiff had three “weak” interview ratings and five “average.”            Regarding this

consideration, Robinson was clearly the superior candidate. As every employer knows, personal

one-on-one interviews are a crucial part of the hiring process. While the scoring of an interview is

largely subjective, the significance of the human interaction between a supervisor and prospective

employee should not be discounted. Effective and productive interpersonal relationships are

important in many positions, including the Marshals Service.




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Case No. 13-2569, Philbrick v. Holder

       Finally, although the majority makes much of the fact that Philbrick’s composite merit

promotion scores were higher than Robinson’s, this fact is immaterial because no one with

decisionmaker authority was aware of those scores.

       Based on this record, I conclude that Philbrick’s qualifications were not “so significantly

better” than Robinson’s that it would have been unreasonable for the Marshals Service to select

Robinson over her. This is not to say that plaintiff was unqualified. Indeed, a reasonable

employer could easily have concluded that Philbrick was the better candidate for the position.

However, absent illegal discrimination, this is the employer’s prerogative. As we held in Bender,

“[i]f two reasonable decisionmakers could consider the candidates’ qualifications and arrive at

opposite conclusions as to who is more qualified, then clearly one candidate’s qualifications are

not significantly better than the other’s.” Bender, 455 F.3d at 628.

       Because I agree with the district court’s ruling that Philbrick was only “as qualified or

marginally more qualified” than Robinson, the next inquiry is whether the record contains the

additional requirement of “other probative evidence of discrimination.”            Id. at 626, 627.

Philbrick and the majority rely on several facts as “other probative evidence of discrimination,”

including: (1) that the Marshal’s recommendation is “usually” followed by the career board and

the director; (2) that Presenter Fagan admitted to overlooking plaintiff’s supervisory experience;

and (3) characterizing Marshal Grubbs’ assessment of plaintiff’s credentials as flawed. But, this

is not evidence of illegal discrimination. Rather, this evidence relates to Philbrick’s qualifications

or the hiring process. This is qualifications evidence, repurposed by plaintiff as evidence of

discrimination. In other words, plaintiff attempts to use qualifications evidence in two ways:




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Case No. 13-2569, Philbrick v. Holder

both as evidence of her qualifications, and as evidence of discrimination. Our case law requires

more.

        Specifically, we require “other” evidence of discrimination, beyond evidence merely

probative of plaintiff’s qualifications or the process of hiring. For example, in Risch v. Royal Oak

Police Department, 581 F.3d 383, 392–93 (6th Cir. 2009), this court found pretext where the

female plaintiff was roughly as qualified as the ultimately-promoted male candidate and where the

plaintiff’s coworkers made statements related to her gender. Similarly, in Bartlett v. Gates,

421 F. App’x 485, 491–92 (6th Cir. 2010), the plaintiff presented evidence that he was as qualified

as the selected candidate, and that his superiors had made discriminatory remarks. In Bartlett, we

concluded that the discriminatory remarks, when combined with the plaintiff’s qualifications

evidence, were enough to survive summary judgment.           Id.   In contrast, Philbrick cites no

authority in which this court has repackaged qualifications evidence and deemed it sufficient as

“other probative evidence of discrimination.”

        In my view, this record is devoid of “other evidence of discrimination” similar to those

found in other cases. In this regard, plaintiff points to no discriminatory remarks from her

supervisors or coworkers regarding her sex. Nor is there any other additional evidence of

discrimination from which a factfinder could infer that Robinson was selected because of an

impermissible bias against plaintiff based on her sex. The inference of sex discrimination that

Philbrick claims lacks any evidentiary support and, in my view, is based solely on speculation and

conjecture.

        In conclusion, on this record, there is insufficient direct or circumstantial evidence from

which a reasonable jury could conclude that the presenter, career board, or director intentionally



                                                30
Case No. 13-2569, Philbrick v. Holder

discriminated against Susan Philbrick because of her sex. As the Supreme Court has held, the

“ultimate question” in employment discrimination cases is whether the plaintiff was the “victim of

intentional discrimination.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 153

(2000). Plaintiff failed to present sufficient evidence to answer that question in the affirmative.

In this case, which the majority concedes is a “close call,” my colleagues have assumed the role of

a super personnel committee by second-guessing a legitimate personnel decision of the Marshals

Service. For these reasons, I respectfully dissent regarding plaintiff’s sex discrimination claim.

                                                  II.

         I also dissent from the majority’s conclusion regarding plaintiff’s 2011 Title VII retaliation

claim.

         The elements of a retaliation claim are similar but distinct from those of a
         discrimination claim. To establish a prima facie case of retaliation under Title
         VII, Plaintiff must demonstrate that: (1) he engaged in activity protected by Title
         VII; (2) his exercise of such protected activity was known by the defendant;
         (3) thereafter, the defendant took an action that was “materially adverse” to the
         plaintiff; and (4) a causal connection existed between the protected activity and the
         materially adverse action.

Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quotation marks omitted). “Title

VII retaliation claims ‘must be proved according to traditional principles of but-for causation,’

which ‘requires proof that the unlawful retaliation would not have occurred in the absence of the

alleged wrongful action or actions of the employer.’” Id. at 731 (quoting Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2014)).

         I agree with the majority that the dispositive issue is causation. The parties and the

majority make much of the “temporal proximity” aspect of causation, discussing whether the five

weeks—or six months, depending on where the line is drawn—between the EEOC action and the



                                                   31
Case No. 13-2569, Philbrick v. Holder

hiring decision was sufficient to establish causation. In my judgment, this line of reasoning is

immaterial because plaintiff cannot establish causation.

       To prove causation, plaintiff must demonstrate that but for her EEOC complaint, she would

have been promoted instead of the ultimately successful candidate.             Assuming arguendo

plaintiff’s position that the career board and director would have rubber-stamped whichever

candidate Marshal Grubbs ranked first among applicants, Philbrick must still show that she should

have been ranked first but for her EEOC complaint. She does not do so. Plaintiff makes much of

the fact that she was initially ranked third behind the less-qualified Candidate 85 and that Grubbs

subsequently revised his rankings, placing plaintiff second. But it does not follow from the fact

that Grubbs revised his rankings making plaintiff second that he would have ranked her first but

for her EEOC complaint. Accordingly, the fact that Grubbs revised his rankings does nothing to

answer whether plaintiff would have been promoted but for her EEOC complaint. Indeed,

plaintiff was never ranked first. Nor does plaintiff argue that she should have been ranked

first—although she argues that she was “overwhelmingly superior[]” to Candidate 85, she never

appears to dispute that Jankowski was a qualified candidate for the job.1 Instead, she requests

that we do her work for her, suggesting that Grubbs’ revision in rankings was indicative of some

wrongdoing in a vague sense, leaving it to us to fill in the blanks with a finding of illegal

discrimination. But it is plaintiff’s burden to establish that her protected activity was the but-for

cause of the adverse employment action against her, and absent evidence or a reasonable inference


1For  example, plaintiff argues that “[t]he question not addressed by the District Court which the
jury was prevented from answering, is why would Grubbs . . . rank Candidate 85 . . . above
[plaintiff ?]” This illustrates perfectly plaintiff’s and the majority’s specious reasoning. Where
plaintiff ranked relative to Candidate 85 is immaterial. What matters for purposes of establishing
but-for causation is where plaintiff ranked relative to Jankowski, the top-ranked candidate.

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Case No. 13-2569, Philbrick v. Holder

that she would have been ranked first except for her EEOC complaint, I cannot conclude that

plaintiff has met that burden.

                                               III.

       For these reasons, I respectfully concur in part and dissent in part. I would affirm the

judgment of the district court.




                                                33
