                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0909n.06
                           Filed: December 20, 2006

                                           No. 04-6499

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT




GERARD A. BAILEY,                                        )
                                                         )       ON APPEAL FROM THE
       Plaintiff-Appellant,                              )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
v.                                                       )       DISTRICT OF KENTUCKY
                                                         )
PAPA JOHN’S USA, INC.                                    )                          OPINION
                                                         )
       Defendant-Appellee.                               )




BEFORE:        MERRITT and MOORE, Circuit Judges; COLLIER, District Judge.*

       CURTIS L. COLLIER, District Judge. Plaintiff-Appellant Gerard Bailey (“Bailey”)

appeals the district court’s grant of Defendant-Appellee Papa John’s USA, Inc. (“Papa-John’s”)

motion for summary judgment. Although we do not agree with the district court’s analysis, we

AFFIRM the District Court’s grant of summary judgment because Bailey is unable to show Papa

John’s reason for terminating Bailey’s employment was mere pretext for discrimination.




       The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
       *


of Tennessee, sitting by designation.
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

                                  I. FACTS AND PROCEDURE

        The facts of the case have been recited in full in the district court’s opinion below and are

fully incorporated here. On March 18, 2002, Bailey sued his former employer, Papa John’s, shortly

after being terminated from his position as general manager of a Papa John’s restaurant in Oak

Grove, Kentucky. Bailey, an African-American, claimed his termination was a result of race-based

discrimination.1 On February 2, 2004, following the completion of discovery, Papa John’s moved

for summary judgment.2

        In Papa John’s reply brief on the motion for summary judgment, Papa John’s conceded

Bailey met the first, second and fourth criteria required for a Title VII claim. Bailey is a member of

a protected class (he is African-American), was subjected to an adverse employment action (he was

terminated) and was replaced by a person outside the protected class (a white store manager). Papa

John’s asserted, and the district court found, Bailey failed to introduce sufficient evidence to raise

a genuine issue of material fact as to the third criteria for a Title VII claim, that is, Bailey must have

been qualified for the position at the time.

        Accordingly, on November 15, 2004, the district court granted Papa John’s motion for



        1
         Bailey also claimed he was illegally denied compensation for overtime worked, in violation
of the Fair Labor Standards Act, 29 U.S.C. § 207(a). Bailey does not pursue an appeal of the district
court’s grant of summary judgment on his Fair Labor Standards Act claim.

        As the district court’s opinion on the summary judgment motion pointed out, Papa John’s
        2


summary judgment motion relied heavily on Bailey’s own admissions during his deposition,
including: (1) Bailey was not meeting Papa John’s performance expectations; (2) Papa John’s
expectations were not unreasonable; and (3) Bailey never heard racial remarks at any time during
his employment with Papa John’s.

                                                   -2-
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

summary judgment. Citing Bailey’s long history of sub-par performance and Papa John’s reasonable

expectations, the district court concluded Bailey did not present a prima facie case because there was

no genuine issue of material fact as to whether Bailey was meeting Papa John’s expectations at the

time of his termination. This decision was based primarily upon Bailey’s continued failure to meet

Papa John’s established profitability goals and Bailey’s refusal to agree to a performance

improvement plan. On December 13, 2004, Bailey timely appealed the district court’s grant of

summary judgment with respect to the Title VII claim.



                                 II. STANDARD OF REVIEW

       The Court reviews de novo a district court’s order granting summary judgment. Smith v.

Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is proper where “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Initially, the burden is on the moving party to

conclusively show no genuine issues of material fact exist, Leary v. Daeschner, 349 F.3d 888, 897

(6th Cir. 2003), and the Court must view the evidence and draw all reasonable inferences therefrom

in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). However, the

nonmoving party is not entitled to a trial merely on the basis of allegations, but must come forward

with some significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S.

317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the nonmoving party fails to make a

                                                 -3-
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

sufficient showing on an essential element of its case with respect to which it has the burden of

proof, the moving party is entitled to summary judgment. Id. at 323, 106 S. Ct. at 2552.

       The Court determines whether sufficient evidence has been presented to make the issue of

fact a proper jury question, but does not weigh the evidence, judge the credibility of witnesses, or

determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.

2505, 2511, 91 L. Ed. 2d 202 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003). The

standard for summary judgment mirrors the standard for directed verdict. Anderson, 477 U.S. at 250,

106 S. Ct. at 2511. The Court must decide "whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law." Id. at 251-52, 106 S. Ct. at 2512. There must be some probative evidence from which the

jury could reasonably find for the nonmoving party. If the Court concludes a fair-minded jury could

not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter

a summary judgment. Id.; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).



                                         III. ANALYSIS

A.     Prima facie case

       For claims such as Bailey’s which lack direct evidence of intent to discriminate, the

well-established McDonnell Douglas/Burdine burden-shifting framework applies to claims of

discrimination brought under Title VII. McClain v. NorthWest Community Corrections Center

Judicial Corrections Bd., 440 F.3d 320, 332 (6th Cir. 2006)(citing Mitchell v. Toledo Hosp., 964

F.2d 577, 582 (6th Cir.1992))(referencing McDonnell Douglas Corporation v. Green, 411 U.S. 792

                                                -4-
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

(1973)). “To demonstrate a prima facie case, the plaintiff must show that ‘(1) he or she was a

member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was

qualified for the position; and (4) he or she was replaced by someone outside the protected class or

was treated differently than similarly-situated, non-protected employees.’” Wright v. Murray Guard,

Inc., 455 F.3d 702, 707 (6th Cir. 2006)(quoting DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.

2004)). As mentioned above, it is undisputed Bailey meets the first, second, and fourth elements;

Papa John’s fired Bailey, an African-American, and replaced him with a white manager. Papa

John’s argued, and the district court found, Bailey’s prima facie case fails on the third element

because Bailey’s performance did not satisfy Papa John’s reasonable standards and expectations.

       The district court held Bailey could not establish a prima facie case because he was not

qualified for his job as manager of the Papa John’s store. This conclusion was based upon the

undisputed “underlying facts which, taken together, indicated [Bailey] simply was not performing

to his employer’s reasonable satisfaction.” (Joint Appendix, p. 1005). In support of this conclusion,

the district court pointed out Bailey had a significant, on-going difficulty managing the labor and

food costs to meet Papa John’s profitability goals. Citing Bailey’s long history of sub-par

performance and Papa John’s reasonable expectations, the district court concluded there was no

genuine issue of material fact as to whether Bailey was meeting Papa John’s expectations at the time

of his termination.

       This case is similar to Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564 (6th Cir. 2003).

In Wexler, the district court concluded the plaintiff could not establish a prima facie case because

he was not qualified for his job as a store manager based upon the undisputed fact that the store’s

                                                -5-
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

sales were declining. Id. at 574. This court held the district court’s conclusion was flawed for two

reasons. First, a district court “may not consider the employer's alleged nondiscriminatory reason for

taking an adverse employment action when analyzing the prima facie case” as this would bypass the

burden-shifting analysis and “deprive the plaintiff of the opportunity to show that the

nondiscriminatory reason was in actuality a pretext designed to mask discrimination.” Id. Second,

the Wexler panel found there was “insufficient proof in the record for us to conclude that [the

plaintiff] was unqualified, as a matter of law, because of the store's declining sales.” Id. at 575. The

plaintiff disputed the drop in sales at his store was proof that he was unqualified and argued the

decline in sales was due to factors other than his performance. Id.

         In the present case, the district court’s conclusion Bailey failed to establish a prima facie case

is flawed for the same two reasons the district court’s decision in Wexler was flawed. In considering

Papa John’s reason for taking an adverse employment action when analyzing the prima facie case,

the district court deprived Bailey of the opportunity to show Papa John’s reason for terminating his

employment was a pretext to mask discrimination. Further, there was insufficient proof for the

district court to find, as a matter of law, the failure to meet Papa John’s reasonable expectations were

proof of Bailey’s being unqualified for the job. Bailey, like the plaintiff in Wexler, disputes his

failure to meet Papa John’s expectations was related to his performance and qualifications for the

job and points to various other factors as contributing to his problem with controlling labor and food

costs.

         At the prima facie stage, “a court should focus on a plaintiff's objective qualifications to

determine whether he or she is qualified for the relevant job.” Id. at 575. A plaintiff can meet the

                                                    -6-
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

prima facie burden of showing he or she is qualified “by presenting credible evidence that his or her

qualifications are at least equivalent to the minimum objective criteria required for employment in

the relevant field.” Id. at 575-76. “Although the specific qualifications will vary depending on the

job in question, the inquiry should focus on criteria such as the plaintiff's education, experience in

the relevant industry, and demonstrated possession of the required general skills.” Id. at 576.

       In this case, looking at the evidence in the light most favorable to Bailey, he did possess the

minimum objective qualifications for employment in the field.

B.     Pretext

       As the district court found Bailey did not sustain his burden of establishing a prima facie

case, the district court did not consider the matter further. Since this Court concludes Bailey

sustained his burden of establishing a prima facie case, the burden then shifts to Papa John’s to

articulate a legitimate, nondiscriminatory reason for Bailey's termination. McClain, 440 F.3d at 332.

If Papa John’s articulated such a reason, the burden returns to Bailey to produce evidence from

which a jury could find that Papa John's stated reason is not credible and is a mere pretext for

discrimination. Tysinger v. Police Dept. of City of Zanesville, 463 F.3d 569, 576 (6th Cir. 2006).

       In briefing the summary judgment motion, the parties both argued to the district court what

should happen if the district court found Bailey sustained his burden of establishing a prima facie

case.3 Papa John's reply brief at the summary judgment stage stated "the basis for Papa John's



       3
        At oral argument, Bailey agreed that he had notice and opportunity to demonstrate pretext
below and had no further evidence.


                                                 -7-
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

decision to discharge Bailey was two-fold: (1) Bailey's refusal to respond to his superiors' questions

regarding the ‘integrity issues’ and his unwillingness to accept the performance improvement plan;

and (2) Bailey’s persistent issues with food and labor costs up through his discharge.” (Joint

Appendix, p. 205). Upon Bailey’s refusal to cooperate in the performance improvement plan and

his refusal to discuss the letter alleging “integrity issues” in a meeting with the regional vice

president, area supervisor and district manager, Bailey’s employment was terminated.

       To demonstrate Papa John’s stated reasons for terminating Bailey’s employment was

pretextual, Bailey must show the reasons offered by Papa John’s for his discharge either: (1) have

no basis in fact; (2) did not actually motivate Papa John’s decision to terminate Bailey’s

employment; or (3) were insufficient to warrant Bailey’s termination. Tysinger, 463 F.3d at 576.

Bailey’s response brief (at the summary judgment stage) states the following in arguing Papa John’s

reason is pretextual:

       The Defendant has indicated that the Plaintiff’s termination was nondiscriminating
       as it was based upon his work performance. The Plaintiff worked for the defendant
       for five and half [sic] (5 1/2) years, and the only written evaluation that the Defendant
       utilized to substantiate their claim is the evaluation of 9-2-1996, approximately a year
       and a half after the Plaintiff began his tenure with the Defendant. See, Plaintiff’s
       Affidavit. No other written evaluations were produced or referenced to indicate that
       the Plaintiff continued with a negative performance in the store.

(Joint Appendix, p. 857). As the facts underlying Bailey’s failure to meet Papa John’s expectations

are undisputed and Papa John’s has fired other managers for failing to meet the same standards,4 it

seems Bailey’s argument invokes the second prong.


       4
        At oral argument, Papa John’s counsel pointed out the manager who was hired to replace
Bailey was also eventually fired for failing to meet Papa John’s standards.

                                                 -8-
No. 04-6499
Gerard Bailey v. Papa John’s USA, Inc.

       This court does not find Bailey’s argument persuasive. Even if the September 1996

evaluation was the only written documentation offered, there are substantial facts outlined in

Bailey’s own deposition, as well as the depositions of Bailey’s supervisor and district manager,

which show Papa John’s was dissatisfied with Bailey’s store’s performance and actively tried to help

Bailey improve the store’s profitability. Once their efforts to help failed and Bailey refused to sign

the performance improvement plan or even discuss the “integrity issues” Bailey vaguely made

reference to in his letter, Bailey’s employment was terminated. Nothing of Bailey’s argument

addresses this evidence or produces any evidence contradicting it. In short, Bailey offers no evidence

demonstrating the undisputed facts in the record showing Bailey’s performance did not meet Papa

John’s standards did not motivate Papa John’s decision to discharge Bailey. Further, Bailey failed

to proffer any evidence that discrimination was the real reason for his discharge. As such, summary

judgment is proper on Bailey’s Title VII claim.



                                       IV. CONCLUSION

       Because Bailey failed to show Papa John’s reason for terminating Bailey was mere pretext

for discrimination, we AFFIRM the District Court’s grant of summary judgment for Papa John’s.




                                                  -9-
