           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Anthony v. BTR Automotive                 No. 01-6028
        ELECTRONIC CITATION: 2003 FED App. 0278P (6th Cir.)                    Sealing Systems, Inc.
                    File Name: 03a0278p.06
                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                   COUNSEL
                  FOR THE SIXTH CIRCUIT                                   ARGUED: Stephen Talbert Hyder, Maryville, Tennessee,
                    _________________                                     for Appellant. Robert O. Sands, OGLETREE, DEAKINS,
                                                                          NASH, SMOAK & STEWART, Atlanta, Georgia, for
 LAWRENCE E. ANTHONY , JR.,       X                                       Appellee. ON BRIEF: Stephen Talbert Hyder, Maryville,
                                   -                                      Tennessee, for Appellant. Robert O. Sands, OGLETREE,
         Plaintiff-Appellant,                                             DEAKINS, NASH, SMOAK & STEWART, Atlanta,
                                   -
                                   -   No. 01-6028                        Georgia, for Appellee.
            v.                     -
                                    >                                        BERTELSMAN, D. J., delivered the opinion of the court,
                                   ,                                      in which CLAY, J., joined. COLE, J. (pp. 20-22), delivered
 BTR AUTOMOTIVE SEALING            -                                      a separate concurring opinion.
 SYSTEMS, INC.                     -
           Defendant-Appellee. -                                                             _________________
                                   -
                                  N                                                              OPINION
       Appeal from the United States District Court                                          _________________
    for the Eastern District of Tennessee at Knoxville.
     No. 00-00315—James H. Jarvis, District Judge.                          BERTELSMAN, District Judge. Plaintiff Lawrence E.
                                                                          Anthony, Jr., appeals the district court’s grant of summary
                   Argued: December 5, 2002                               judgment to defendant on Anthony’s claims for race and age
                                                                          discrimination under Title VII of the Civil Rights Act of
              Decided and Filed: August 8, 2003                           1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in
                                                                          Employment Act of 1967, 29 U.S.C. § 621 et seq., 42 U.S.C.
           Before: COLE and CLAY, Circuit Judges;                         § 1981, and the Tennessee Human Rights Act. For the
            BERTELSMAN, Senior District Judge.*                           reasons set forth, this court AFFIRMS the district court.
                                                                                             Factual Background
                                                                             Plaintiff Lawrence E. Anthony, Jr., a black male over the
                                                                          age of forty, was hired by defendant at the age of nineteen.
                                                                          Beyond high school, Anthony attended the University of
                                                                          Tennessee at Martin for approximately one year before his
                                                                          employment with the defendant. Anthony does not possess
    *
     The Honorable William O. Bertelsman, Senior United States District   a college degree or Certified Quality Engineer “CQE” status.
Judge for the Eastern District of Kentucky, sitting by designation.

                                  1
No. 01-6028                      Anthony v. BTR Automotive               3    4    Anthony v. BTR Automotive                  No. 01-6028
                                       Sealing Systems, Inc.                       Sealing Systems, Inc.

  Defendant BTR Automotive Sealing Systems, Incorporated                      with BTR, he spent twenty-two years in the quality laboratory
(“BTR”)1 manufactures door seals for new automobiles,                         under the supervision of Debbie Massey.
primarily sold to the “Big Three” automobile makers –
General Motors, Ford and Chrysler. BTR has historically had                      Anthony maintains that, early in his employment, BTR’s
three operations on site: the mixing plant and the extrusion                  then-vice president for technical operations, John McManus,
plant2 located within one building, and the finishing plant3                  a graduate from the National College of Polymer Technology
located a few yards away. Each of the three operations had                    in London, taught Anthony directly from class notebooks.
separate laboratories.                                                        Anthony contends a jury should have been permitted to hear
                                                                              how this early experience in Anthony’s employment “set the
  Anthony appeals the grant of summary judgment to BTR                        tone” for his loyalty and enthusiasm for the company during
on his claims that BTR’s refusal to promote him on four                       his employment and ultimately demonstrates that he was
separate occasions was discriminatory based on his race and                   indeed qualified for the promotions.
age.4 He also appeals the grant of summary judgment by the
district court four days before trial because by that time he                   The four promotions at issue include: (1) a job given to
had already expended money on witness per diem and service                    Tim Wilham in late 1997; (2) a job given to Mark Ledbetter
fees for the trial.                                                           in June of 1998 ; (3) a job given to Leann Abston in
                                                                              December of 1998; and (4) a job given to Rusty Kreyling in
  Anthony argues that he was a long-time faithful employee                    August of 1999. The facts of each promotion follow.
of BTR with a good work record, including never missing a
day of work or being tardy. During his twenty-seven years                                 The promotion given to Tim Wilham
                                                                                 In 1997, Debbie Massey, laboratory supervisor of the
                                                                              extrusion plant and supervisor to Anthony, transferred to the
                                                                              company’s Rockford, Maryland office. Massey had a
    1
      BTR has been sold and is known now as Metzeler Automo tive              Bachelor of Science degree from the University of Tennessee
Profile Systems.                                                              with an additional year of education in chemistry and
    2
                                                                              psychology. In addition to supervising Anthony, Massey
      In the extrusion plant after raw compounds and raw materials are        supervised two other employees in the finishing and extrusion
blended together at the mixing plant to form rubber, the rubber compound      plant laboratories. Anthony had no responsibilities in the
is run through an extrusion dye. This subjects the rubber to heat and
pressure. T he final product is primarily door seals.                         finishing plant. While Anthony was primarily performing lab
                                                                              tests for the extrusion lines, Massey was covering duties in a
    3
      The finishing plant is where extruded materials are taken and           variety of locations, including incoming materials as well as
molded together, coated, and various secondary operations performed           the finishing plant.
prior to packaging for shipment to the customer.
                                                                                Anthony maintains that he performed all supervisory and
    4
      At the district court level Anthony also sou ght relief for claims of   nonsupervisory duties in the laboratory when there was no
discrimination for adverse employment actions related to his pay. The         supervisor after Massey was transferred. Anthony submitted
district court found the pay claims were barred for failure to include them   his resume to Denny Moore, the human resources manager,
in his EEOC action. Anthony did not appeal this ruling.
No. 01-6028                Anthony v. BTR Automotive       5    6       Anthony v. BTR Automotive                         No. 01-6028
                                 Sealing Systems, Inc.                  Sealing Systems, Inc.

to apply for Massey’s position. Moore told Anthony that         preferred someone with a college degree, technical
BTR was not looking to fill the position as a laboratory        background or CQE credentials to succeed Wilham, instead
supervisor and, instead, wanted to fill it with someone who     of a lab supervisor. BTR further contends that prior
was a CQE or who had a technical decree.                        experience within the automotive supply industry to the “Big
                                                                Three” automakers was considered a plus.
  The job was given to Tim Wilham, a white male under the
age of forty. He did not have a college degree and was not a       In May of 1998, Patrick Hood was employed as a quality
CQE. Wilham began working for BTR as a production               manager while BTR was undergoing an attempt to improve
supervisor in December of 1994.                                 its quality standards and regain a “Ford Q1" status. This
                                                                status would require the implementation of the new standard
   In 1997, Wilham had been assigned to work as a supervisor    of quality within the industry, designated as QS-9000.5 BTR
in the mixing plant. The mixing plant employees objected to     maintains that it needed to change its approach to quality
Wilham’s presence because of a previous arrangement             oversight by attempting to identify the root cause of
between BTR and the union that a supervisor would not be        problems, rather than testing materials after the fact.
assigned to this particular group of employees. J.W. Burton,
the operations manager, and Terry Brosi, the general              Hood hired Mark Ledbetter, a white male under the age of
manager, conceded to the employees’ request for Wilham’s        forty, to fill the position in June of 1998. Ledbetter had a
removal, which was determined not to be through any fault of    CQE status, a technical education, and experience within the
Wilham. Because Wilham was an experienced supervisor for        automotive industry. Ledbetter’s job comprised more than
BTR, the company did not want to terminate him. According       just supervising the extrusion lab. His duties also included
to BTR, Brosi and Burton assigned Wilham to Massey’s            identifying and solving problems, conducting designs of
former position as a laboratory supervisor because there was    experiments, performing statistical studies to bring processes
no other place to put him. This was considered only a           in control, and generally identifying and developing better
temporary placement for Wilham until another position was       test procedures.
available for him.
                                                                             The promotion given to Leann Abston
  Moore testified that neither Wilham nor Anthony was
qualified for the position. However, Brosi and Burton made        Ledbetter quit after five months to take another job in
the promotion decision. After Wilham’s initial period in the    November of 1998. At that time Leann Abston, a white
laboratory, the company decided it was not going to work out    female under the age of forty, replaced him as the quality
and that Wilham was not qualified. Within a few months he       engineer responsible for the projects which Ledbetter had
was transferred to another position.                            been doing as well as supervising Anthony in the extrusion
                                                                lab. Abston was a CQE who had been employed by BTR
          The promotion given to Mark Ledbetter
  After Wilham was moved out of the position, BTR                   5
maintains it determined that it would seek candidates for the         The QS-9000 system is a set of standards adopted by the automotive
position who were qualified as quality engineers. BTR           industry to ensure that all suppliers are held accountable to the same set
                                                                of stand ards governing their production, rep orting, and systems.
No. 01-6028                Anthony v. BTR Automotive       7    8        Anthony v. BTR Automotive                        No. 01-6028
                                 Sealing Systems, Inc.                   Sealing Systems, Inc.

since October 1991 in various quality engineer/supervisor       ever designated as a laboratory supervisor. The other three
positions within the quality assurance department. She had      were quality engineers.
a significant educational background, including an
engineering degree and a master’s degree in business              Hood also testified concisely in his deposition that BTR
administration. She also had previous automotive experience     wanted someone with a technical degree or a CQE status for
with the Ford Motor Company.                                    the position. Hood was also looking for someone with
                                                                experience in statistical studies, experiment design, QS-9000
  Abston had been selected for a reduction in force in early    administration, one-on-one customer problem solving, and
1998. After she contested this decision, she was reinstated     PPAPs.6 The persons hired after Wilham all had these or
during late 1998. Since Ledbetter departed about the same       equivalent qualifications according to Hood.
time, Abston was given Ledbetter’s position because BTR
had agreed to return Abston to work. While Hood testified         Hood testified that the majority of Anthony’s job included
that Abston was technically qualified to perform the job, he    the testing of parts and entering the data. Anthony also filed
did have reservations about her personality and her             certain documentation in regard to the QS-9000 as a clerk
absenteeism from work. Nonetheless, he was told by the          would. He had never done any statistical studies or designed
acting interim general manager at that time that Abston was     any experiments. According to Hood, Anthony “[s]imply
coming back to work in quality engineering.                     wasn’t qualified, hands down.” When asked to summarize
                                                                why Anthony was not qualified, Hood testified in his
          The promotion given to Rusty Kreyling                 deposition:
  Abston resigned in August of 1999, and Rusty Kreyling             [H]e doesn’t have a technical degree, number one, he
was hired permanently in early 1999 to work as a quality            doesn’t have a certified quality engineer by his name, he
technician in the finishing plant. Kreyling was considered          hasn’t done root cause problem solving involving design
highly qualified by Hood because of his degree in statistics        of experiments, he doesn’t have the statistical knowledge
from the University of Tennessee and his advanced                   to do more than – anymore than input data into a
knowledge of statistics.      Kreyling was not a CQE.               computer and hit a button and have it print out.
Nonetheless, because of his statistics degree, Hood testified       Analyzing what that data means, he doesn’t have any
that Kreyling was more qualified than other CQEs with whom          background in that.
he had worked in the past.
                                                                (J.A. at 272).
  BTR’s reasons for not promoting Anthony after Wilham
                     was transferred
  While Hood was aware of Anthony’s interest in a
laboratory supervision position, he explained to Anthony that
he had no such position available after Wilham was moved.
Wilham was the only one of the individuals above who was             6
                                                                      PPAPs are “part approval pro cesses” which mea ns getting new p arts
                                                                app roved.
No. 01-6028                 Anthony v. BTR Automotive         9    10   Anthony v. BTR Automotive                    No. 01-6028
                                  Sealing Systems, Inc.                 Sealing Systems, Inc.

                     Standards of Review                           every State and Territory to make and enforce contracts . . . as
                                                                   is enjoyed by white citizens. . . .” 42 U.S.C. § 1981. Section
   A court of appeals reviews the grant of summary judgment        1981 thus prohibits racial discrimination in the making of
de novo. Bowman v. Shawnee State Univ., 220 F.3d 456, 461          contracts and affords a federal remedy against racial
(6th Cir. 2000). Summary judgment is proper only if there is       discrimination in private employment. Johnson v. Ry.
no genuine issue as to any material fact and the moving party      Express Agency, Inc., 421 U.S. 454, 460-61, 95 S. Ct. 1716,
is entitled to judgment as a matter of law. Fed. R. Civ. P.        44 L. Ed. 2d 295 (1975). In 1989, however, the Supreme
56(c); see Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th       Court held that while the “make and enforce contracts”
Cir. 1990). “Rule 56(c) mandates the entry of summary              language of § 1981 proscribed discriminatory hiring, it did
judgment, after adequate time for discovery and upon motion,       not proscribe discriminatory termination or other
against a party who fails to make a showing sufficient to          discriminatory actions occurring after the employment
establish the existence of an element essential to that party’s    relationship was formed. Patterson v. McLean Credit Union,
case, and on which that party will bear the burden of proof at     491 U.S. 164, 177-78, 109 S. Ct. 2363, 105 L. Ed. 2d 132
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.    (1989).
2548, 91 L. Ed. 2d 265 (1986). In conducting the summary
judgment analysis, this court must view all inferences to be         In the wake of Patterson, Congress passed the Civil Rights
drawn from the underlying facts in the light most favorable to     Act of 1991, which amended § 1981 by designating its
the nonmoving party. See Gen. Elec. Co. v. G. Siempelkamp          original text, quoted above, as subsection (a) and by adding
GmgH & Co., 29 F.3d 1095, 1097-98 (6th Cir. 1994).                 a new subsection (b) to define the term “make and enforce”
                                                                   contracts to include “[t]he making, performance,
  On the granting of summary judgment so close to trial in         modification, and termination of contracts, and the enjoyment
regard to the district court’s controlling its docket, the court   of all benefits, privileges, terms, and conditions of the
of appeals reviews such for an abuse of discretion. See            contractual relationship.” See 42 U.S.C. § 1981(b). This
generally Guillory v. Domtar Indus., Inc., 95 F.3d 1320 (5th       amendment effectively reversed Patterson and permitted the
Cir. 1996).                                                        use of § 1981 to challenge alleged race discrimination not
                                                                   only in the formation of the employment relationship, but in
                           Analysis                                “post-formation” employment actions as well.
A. Whether Anthony met the statute of limitations under 42            Thus, the 1991 amendments to § 1981 created “liabilities
   U.S.C. § 1981                                                   that had no legal existence before the 1991 Act was passed.”
                                                                   Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, 114 S.
  We first address BTR’s argument that Anthony’s § 1981            Ct. 1510, 1519-20, 128 L. Ed. 2d 274 (1994); see also Harris
claim is barred by Tennessee’s one-year statute of limitations.    v. Allstate Ins. Co., 300 F.3d 1183, 1186-87 (10th Cir. 2002)
                                                                   (“The Civil Rights Act of 1991 . . . essentially created a new
  Anthony asserted his discrimination claims, in part, under       cause of action to challenge an employer’s discriminatory
42 U.S.C. § 1981. Originally enacted in 1870, § 1981               post-formation conduct.”); Young v. Sabbatine, No. 97-5169,
provides in pertinent part that “[a]ll persons within the          1998 WL 136559, at *3 (6th Cir. Mar. 19, 1998) (noting that
jurisdiction of the United States shall have the same right in
No. 01-6028                 Anthony v. BTR Automotive         11    12    Anthony v. BTR Automotive                    No. 01-6028
                                  Sealing Systems, Inc.                   Sealing Systems, Inc.

the 1991 amendments were “not merely restorative” but                 The Third Circuit, in 2000, discussed three different
created new substantive liabilities) (citing Rivers, supra).        approaches that courts have taken. Zubi v. AT&T Corp., 219
                                                                    F.3d 220, 222 (3d Cir. 2000). Summarized briefly, they are:
  This review of the history of 42 U.S.C. § 1981 is essential       (1) that claims created by the Civil Rights Act of 1991
to the analysis of which statute of limitations applies to          amending § 1981 should be subject to the new four-year
§ 1981 claims such as those asserted in this case.                  statute of limitations, but all other claims remain subject to
                                                                    the state “borrowed” period; (2) that all § 1981 claims
  Section 1981 does not contain its own statute of limitations.     accruing after the passage of 28 U.S.C. § 1658 are now
In Goodman v. Lukens Steel Co., 482 U.S. 656, 661, 107 S.           subject to the four-year limitations period; and (3) that the
Ct. 2617, 2620, 96 L. Ed. 2d 572 (1987), the Supreme Court          Civil Rights Act of 1991 merely amended an existing law and
held that federal courts should select the most appropriate or      was not a new enactment for purposes of 28 U.S.C. § 1658,
analogous state statute of limitations to apply to § 1981           and thus all § 1981 claims remain subject to the state
claims. The Sixth Circuit thus held that the limitations period     “borrowed” limitations period. Id.
for § 1981 actions in Tennessee was the state’s one-year
limitation period set forth in Tenn. Code Ann. § 28-3-104.            The Third, Seventh, and Eighth Circuits presently hold that
See Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th            28 U.S.C. § 1658 does not apply to any claims under § 1981,
Cir. 1992).                                                         whether arising under its original text or under the 1991
                                                                    amendments. See Jones, 305 F.3d at 728; Madison v. IBP,
  However, on December 1, 1990, Congress passed 28                  Inc., 257 F.3d 780, 798 (8th Cir. 2001), vacated on other
U.S.C. § 1658, a general statute of limitations applicable to all   grounds, 536 U.S. 919, 122 S. Ct. 2583, 153 L. Ed. 2d 773
federal statutes enacted after that date, which states in           (2002) (mem.); Zubi, 219 F.3d at 225.
pertinent part: “Except as otherwise provided by law, a civil
action arising under an Act of Congress enacted after the date        In contrast, the Tenth Circuit recently held that 28 U.S.C.
of enactment of this section may not be commenced later than        § 1658&s four-year statute of limitations applies to § 1981
4 years after the cause of action accrues.” 28 U.S.C. § 1658        claims that were created by the 1991 amendments (e.g.,
(emphasis added).                                                   claims under § 1981(b)). See Harris, 300 F.3d at 1191. The
                                                                    Eleventh Circuit has been presented with the issue but has not
  The question of how, if at all, the passage of 28 U.S.C.          ruled on it. See Taylor v. Ala. Intertribal Council Title IV
§ 1658 affected the statute of limitations for § 1981 claims is     J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001) (affirming
one that has divided the federal courts. See Harris, 300 F.3d       dismissal of § 1981 claims on qualified immunity grounds
at 1187 (noting that the federal courts “have split in              and not reaching statute of limitations issue), cert. denied, 535
determining which statute of limitations applies to suits           U.S.1066, 122 S. Ct. 1936, 152 L. Ed. 2d 841 (2002) (mem.).
brought under the amended version of § 1981"); see also
Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 728 (7th            Several years ago, we recognized this question but did not
Cir. 2002) (noting division among circuits and holding that 28      have occasion to resolve it. Sabbatine, 1998 WL 136559, at
U.S.C. § 1658 does not apply to § 1981 claims), cert. granted,      *3. Again last year, we were presented with the issue but
__ U.S. __, 123 S. Ct. 2074 (2003).                                 explicitly declined to express a view on the merits because we
                                                                    did not have jurisdiction. See Smith v. County of Hamilton,
No. 01-6028                      Anthony v. BTR Automotive             13     14   Anthony v. BTR Automotive                    No. 01-6028
                                       Sealing Systems, Inc.                       Sealing Systems, Inc.

34 Fed. Appx. 450, 455, No. 00-4290, 2002 WL 655524 (6th                      four-year statute of limitations to § 1981 claim alleging
Cir. Apr. 19, 2002) (unpublished).7                                           racially discriminatory termination); Rodgers v. Apple South,
                                                                              Inc., 35 F. Supp. 2d 974, 976-77 (W.D. Ky. 1999) (holding
  In Sabbatine, the plaintiff invoked § 1981 to allege that his               that four-year statute of limitations should apply to all § 1981
employer had created a racially discriminatory hostile work                   claims). But see Coleman v. Shoney’s, Inc., 145 F. Supp. 2d
environment and that it had failed to promote him on account                  934, 938 (W.D. Tenn. 2001) (holding that § 1658 does not
of his race. 1998 WL 136559, at *1. The district court                        apply to any claim under § 1981).
dismissed the § 1981 claims as untimely under the one-year
statute of limitations borrowed from Kentucky. Id. at *3. We                     We now hold that the four-year statute of limitations set
reversed and remanded, stating that the district court should                 forth in 28 U.S.C. § 1658 does indeed apply to § 1981 claims
consider the application of the four-year limitation period in                insofar as they arise under the portion of the statute enacted
28 U.S.C. § 1658 in light of the 1991 amendments to § 1981.8                  by the Civil Rights Act of 1991. That legislation
Id.                                                                           undisputably created new legal rights that did not exist prior
                                                                              to its passage. See Rivers, 511 U.S. at 313, 114 S. Ct. at
  Several district courts within this circuit have since held                 1519-20. Section 1981 claims premised upon alleged
that the four-year limitations period of 28 U.S.C. § 1658                     discriminatory actions occurring after the formation of the
should now apply to § 1981 claims, in whole or in part. See                   employment relationship, such as the failures to promote at
Kinley v. Norfolk Southern Ry. Co., 230 F. Supp. 2d 770, 776                  issue in this case, are thus actionable under § 1981 only by
(E.D. Ky. 2002) (applying four-year limitations period to                     virtue of legislation enacted after December 1, 1990, and by
failure to promote claims); Brown v. Jenny Craig Weight Loss                  its terms 28 U.S.C. § 1658 therefore applies to them.
Ctr., No. C-1-97-0211, 2000 WL 989918 (S.D. Ohio May 2,
2000) (holding that four-year statute of limitations should                      In this regard, we are in agreement with the reasoning of
apply to all portions of § 1981); Miller v. Fed. Express Corp.,               the Tenth Circuit in Harris, supra. We also agree, as
56 F. Supp. 2d 955, 964-65 (W.D. Tenn. 1999) (applying                        expressed in Harris, that the fact that this statutory
                                                                              construction results in “post-formation” § 1981 claims being
                                                                              subject to a four-year limitations period and “formation”
    7
                                                                              claims remaining subject to the borrowed state limitations
       W e note that the Supreme Co urt recently granted certiorari in the    period does not change this analysis. 300 F.3d at 1193. As
Jones case out of the Seventh Circuit, indicating that it will likely soon    the Tenth Circuit noted, “courts routinely apply different
resolve the issue. See Jones v. R.R. Donnelley & Sons, Inc., 305 F.3d 717
(7th Cir. 20 02), cert. granted, __ U.S. __, 123 S . Ct. 2074 (2003 ).
                                                                              statutes of limitations to different claims, including claims
Nonetheless, this panel must proceed to address the issue in this case as     made within a single lawsuit.” Id. Particularly within the
best it can based on the authorities currently available.                     realm of employment law, where rights may be, and are
                                                                              typically, asserted under both federal and state law, litigants
    8
      On remand, the district co urt con cluded that 28 U.S.C. § 1 658 did    and courts routinely deal with differing limitations periods for
extend the statute of limitations for the plaintiff’s § 1981 claims to four   related causes of action. While this result may not yield the
years. See Young v. Sabbatine, No. 99-6 336 , 200 0 W L 18 886 72, at *2      greatest simplicity, it does reflect what we believe to be the
n.2 (6th Cir. Dec. 19, 2000) (so noting, and holding that the Sixth Circuit
had no jurisdiction to consider the issue on this second appeal because the
                                                                              most faithful reading of these statutes.
employer did not file a notice of cross-appeal to preserve the issue).
No. 01-6028                     Anthony v. BTR Automotive             15     16     Anthony v. BTR Automotive                            No. 01-6028
                                      Sealing Systems, Inc.                         Sealing Systems, Inc.

B. Whether the district court erred in granting summary                        In order to make a prima facie case based upon a failure to
   judgment to BTR on Anthony’s claims of racial and age                     promote, Anthony must prove that (1) that he is a member of
   discrimination9                                                           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
   Anthony alleges discrimination by BTR’s refusal to                        similarly-situated person who was not in the plaintiff’s
promote him allegedly based on his race and age. In order to                 protected class received the job.10 Thurman v. Yellow Freight
establish employment discrimination, Anthony must either                     Sys., Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); see also
present direct evidence of discrimination or introduce                       Burdine, 450 U.S. at 254 (citing McDonnell Douglas, 411
circumstantial evidence that would allow an inference of                     U.S. 792). Cf. Seay v. TVA, No. 01-5953 (6th Cir. 2003).
discriminatory treatment. Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc). Anthony                                          The Wilham promotion
relies on circumstantial evidence and presents no direct
evidence.                                                                       Anthony, as an African-American over the age of forty,11
                                                                             is indeed within the protected race and age classes. He
  The burden-shifting approach under McDonnell Douglas                       applied for the promotion, but it was denied to him. It is the
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d                   remaining requirements of a prima facie case that are at issue
668 (1973), which was later refined in Texas Dept. of                        on the Wilham promotion.
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089,
67 L. Ed. 2d 207 (1981), applies to the present case. Under                     On whether he was considered for the promotion, Denny
this framework, Anthony faces the initial burden of presenting               Moore, the human resources manager, testified that Anthony
a prima facie case of discrimination. The establishment of a                 gave him his resume. At that time BTR was not looking for
prima facie case creates a rebuttable presumption of                         a laboratory supervisor, the position which Anthony sought.
discrimination and requires BTR to articulate some
legitimate, nondiscriminatory reason for taking the challenged
action. BTR’s burden is only one of production, not                               10
                                                                                    W e note that in Farm er v. Cleveland Pub. Power, 295 F.3d 593,
persuasion. Gray v. Toshiba Am. Consumer Prods., Inc., 263                   603 (6th Cir. 2002) and Roh v. Lakeshore Estates, Inc., 241 F.3d 491, 497
F.3d 595, 599 (6th Cir. 2001) (citing Burdine, 450 U.S. at                   (6th Cir. 20 01), this Court stated that the fourth prong could be met if the
253, 101 S. Ct. at 1093). The ultimate burden of persuasion                  position went to a less-qualified applicant who was not a member of the
remains with Anthony. Id. If BTR produces legitimate                         protected group. This standard conflicts with or ignores prior published
                                                                             decisions of this Court using the “similarly situated” standard. See, e.g.,
nondiscriminatory reasons, Anthony must prove BTR’s                          Nguyen v. City of Cleveland, 229 F.3d 559 , 562 -63 (6 th Cir. 2000 ); Allen
reasons are a pretext for discrimination.                                    v. Mich. Dep ’t of Corr., 165 F.3d 405 , 410 (6th C ir. 199 9); Betkerur v.
                                                                             Aultman Hosp. Ass’n, 78 F .3d 1 079 , 109 5 (6th Cir. 1996 ); Ercegovich v.
                                                                             Goodyear Tire & Rubber Co., 154 F.3d 344 , 352 (6th C ir. 199 8); Brown
                                                                             v. Tenn., 693 F.2d 600 , 603 (6th C ir. 198 2). We, therefore, decline to
                                                                             adopt the “less-qualified” language used in Farmer and Roh because it
                                                                             deviates from prior precedent.
    9
      Anthony’s claims of discrimination under different statutes require         11
the same standards of proof and therefore will not be analyzed separately.          Anthony was forty-three years of age when the first promotion
See Wade v. Knoxville Utils. Bd., 259 F.3d 45 2, 464 (6th Cir. 2001).        went to Wilham.
No. 01-6028                        Anthony v. BTR Automotive               17     18    Anthony v. BTR Automotive                    No. 01-6028
                                         Sealing Systems, Inc.                          Sealing Systems, Inc.

Instead, BTR was searching for someone with a degree and                             To make a submissible case on the credibility of BTR’s
CQE status. It is not disputed that Anthony did not have                          explanation, Anthony is “‘required to show by a
these qualifications and was not interviewed. While                               preponderance of the evidence either (1) that the proffered
ordinarily the fact that a candidate did not have the proper                      reasons had no basis in fact, (2) that the proffered reasons did
credentials for a position might excuse the employer from not                     not actually motivate [the employment action], or (3) that
considering him, we continue with the prima facie case                            they were insufficient to motivate [the employment action].’”
because the position was filled by Wilham, who also did not                       Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078,
have the proper credentials. Moore testified that neither                         1084 (6th Cir. 1994) (alteration in original) (citing McNabola
Wilham nor Anthony was qualified for the position. A                              v. Chi. Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)).
plaintiff should not be required to prove that he is qualified to
meet the stated requirements for a position where the selected                      Anthony has failed to show that BTR’s reasons are
candidate likewise does not meet the requirements.12                              pretextual. He does not present any evidence showing BTR’s
                                                                                  reasons were not based in fact or that they were not the real
   On the final prong of the prima facie case, neither Anthony                    reasons for its decision. Anthony only presents his own
nor Wilham met the stated criteria for the actual position BTR                    qualifications on the issue of pretext, and this is insufficient.
sought to fill with a quality engineer, but both had experience
which could make them viable candidates for a laboratory                                        The quality engineer promotions
supervisor. Accordingly, they can be considered similarly
situated for the purposes of reviewing Anthony’s failure-to-                        As to the position after Wilham was moved, BTR only
promote claim. Hence, this Court finds that Anthony has met                       sought out candidates with the necessary qualifications it
his prima facie case.                                                             deemed essential in a quality engineer. The real issue here is
                                                                                  whether Anthony was qualified for the position of quality
  The burden now shifts to BTR to articulate a legitimate,                        engineer. Hood testified that Anthony was not qualified
nondiscriminatory reason for placing Wilham in the position.                      “hands down.” The person BTR wanted for the position was
BTR removed Wilham as supervisor of the mixing plant due                          someone with a technical/statistical background or degree or
to an agreement with the union, and it did not want to                            someone who was a CQE. Experience with the “Big Three”
terminate him. Placing Wilham into Massey’s former                                motor companies was also considered a plus.
position was necessary because BTR did not have any other
position at that time for Wilham. Anthony has presented no                          It is undisputed that Anthony did not have these
evidence to the contrary.                                                         qualifications, while the three persons who received the
                                                                                  promotions did.       Although Anthony argues that his
                                                                                  experience and background made him as well qualified as the
                                                                                  other candidates, we cannot say in the mind of BTR that this
                                                                                  was equivalent to a college degree, a CQE status, or the other
    12
                                                                                  objective qualifications which BTR sought in a quality
        There may be instances where a deviation from the stated criteria         engineer. Accordingly, Anthony was not qualified for the
of a job positio n wou ld result in an inference o f discrimination. See e .g.,   position, and he has failed to establish a prima facie case. See
Briggs v. Anderson, 796 F.2d 1009, 1026 (8th Cir. 1986). Under the                Wexler, 317 F.3d at 576 (holding that in determining whether
particular facts of this case, no such inference is warranted.
No. 01-6028                  Anthony v. BTR Automotive          19    20   Anthony v. BTR Automotive                   No. 01-6028
                                   Sealing Systems, Inc.                   Sealing Systems, Inc.

plaintiff has satisfied qualification prong of prima facie test,                        ____________________
inquiry should focus on objective criteria).
                                                                                          CONCURRENCE
C. Whether the district court abused its discretion in                                  ____________________
   granting summary judgment to BTR four days before
   trial                                                                R. GUY COLE, JR., Circuit Judge, concurring. Anthony’s
                                                                      Title VII and ADEA claims relating to the positions filled by
  Anthony complains because the district court waited until           Wilham and Ledbetter are time-barred and, therefore, no
four days before trial to issue its decision on summary               longer actionable. Likewise, Anthony’s Tennessee Human
judgment. However, trial courts have inherent power to                Rights Act claims relating to the positions obtained by
control their dockets. See, e.g., Gould v. Wood/Chuck                 Wilham, Ledbetter, and Abston are time-barred, as they were
Chipper Corp., Nos. 99-1544, 99-1707, 2000 WL 1234334                 not filed within the one-year statute of limitations period.
(6th Cir. Aug. 25, 2000); Oliva v. Sullivan, 958 F.2d 272 (9th        Finally, under our established precedent, Anthony’s § 1981
Cir. 1992); Edwards v. Cass County, Tex., 919 F.2d 273 (5th           claims are subject to a one-year statute of limitations period.
Cir. 1990); Polk-Osumah v. Wayne County, Mich., 205 F.R.D.            See Wade v. Knoxville Utils. Bd., 259 F.3d 452, 464 (6th Cir.
199 (E.D. Mich. 2001); U.S. v. Reaves, 636 F. Supp. 1575,             2001) (explaining that “[b]ecause § 1981 does not specify a
1578 (E.D. Ky. 1986 ). The timing of trials and docket                statute of limitations, [courts must] apply the one-year
control are matters best left to the discretion of the trial court.   limitations period from Tenn. Code Ann. § 28-3-104.” (citing
In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996).           Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th Cir.
We cannot say that the district court’s granting summary              1992)). Today, the majority supplants the well-established
judgment four days before trial was an abuse of discretion,           rule that the statute of limitations for § 1981 claims must be
considering the heavy caseloads under which the district              borrowed from an analogous state statute insofar as that rule
courts labor. Plaintiff is better off than he would be if the         applies to claims “aris[ing] under the portion of [§ 1981]
district court had granted judgment as a matter of law at the         enacted by the Civil Rights Act of 1991.” I write separately
close of plaintiff’s evidence.                                        because I believe there are no claims that arise under the
                                                                      portion of § 1981 enacted under the Civil Rights Act of 1991,
  For the reasons stated, we AFFIRM the district court.               and because I believe 28 U.S.C. § 1658 was not intended to
                                                                      apply to § 1981 as amended or otherwise.
                                                                         Although, § 1981(b) allows new causes of action in that it
                                                                      allows plaintiffs to bring previously unavailable claims –
                                                                      claims arising out of discriminatory conduct that occurs after
                                                                      the private employment relationship is formed – § 1981(b)
                                                                      alone cannot give rise to these causes of action. Instead,
                                                                      § 1981(b) defines the phrase “make and enforce contracts” as
                                                                      that phrase is used in § 1981(a). Specifically, as the majority
                                                                      notes, in reaction to the Supreme Court’s decision in
                                                                      Patterson v. McLean Credit Union, 491 U.S. 164 (1987),
No. 01-6028                    Anthony v. BTR Automotive            21     22   Anthony v. BTR Automotive                  No. 01-6028
                                     Sealing Systems, Inc.                      Sealing Systems, Inc.

§ 1981(b) was added to define that phrase more broadly than                borrowing analogous state statutes of limitations for federal
it had previously been defined. However, § 1981(a), entitled               causes of action that do not contain their own limitations
“Statement of equal rights,” is still the source of substantive            periods.” Id. at 725 (citing H.R. Rep. No. 101-734, at 24).
rights in the statute. Because § 1981(b) is merely definitional,           Moreover, § 1658 “was also concerned with disrupting
it functions only to broaden the scope of causes of action that            litigants’ settled expectations.” Id. (explaining that, to
arise under § 1981(a). Section 1981(b) does not, in and of                 address this concern, Congress made § 1658 prospective). I
itself, provide the basis for any causes of action. Therefore,             agree with the Seventh Circuit that the conclusion that
the “new causes of action” that are now permitted as a result              § 1658’s four-year limitation period does not apply to § 1981
of the inclusion of § 1981(b) are actually § 1981(a) claims.               post-formation claims is consistent with Congress’s two
Thus, I would find that § 1981 post-formation claims simply                purposes in enacting § 1658. Id. at 726-27. Likewise, I
arise under § 1981(a), which is a statute enacted prior to the             believe that the legislative history of § 1981 supports this
effective date of 28 U.S.C. § 1658, December 1, 1990. This                 conclusion. Id. at 727 (citing H.R. Rep. No. 102-40(I), at 63
finding renders the § 1658 limitations period inapplicable to              (1991), U.S. Code Cong. & Admin. News 1991, at 601).
§ 1981 post-formation claims.
                                                                              Thus, I would find that Anthony’s § 1981 claims relating to
  Alternatively, even assuming that a post-formation claim                 the positions filled by Wilham, Ledbetter, and Abston, but not
arises under both § 1981(a) and (b),1 § 1658 is at least                   Kreyling, are time-barred. With respect to the claims that are
ambiguous as to whether Congress intended its “catchall”                   not time barred, Anthony’s Title VII, ADEA, and § 1981
four-year statute of limitations to apply to these claims. The             claims relating to the position filled by Kreyling and
language of § 1658 simply does not address the eventuality                 Anthony’s Title VII and ADEA claims relating to the position
when a cause of action “aris[es] under” two different “Acts of             filled by Abston, I would deny these claims on the merits for
Congress,” one enacted before and one enacted after                        the reasons stated by the majority.
December 1, 1990. See Jones v. R.R. Donnelley & Sons, Co.,
305 F.3d 717, 724 (7th Cir. 2002). Thus, I would look
beyond the plain language of § 1658 to determine whether it
was intended to apply to post-formation § 1981 claims.
  The legislative histories of § 1658 and the Civil Rights Act
of 1991 suggest that Congress did not intend § 1658’s four-
year limitation period to apply to § 1981 post-formation
claims. As the Seventh Circuit explained, § 1658 was enacted
to “alleviate the uncertainty inherent in the practice of


    1
      For the reasons described above, I believe that no claim will ever
arise solely under § 1981(b). However, for purposes of argum ent, I will
concede that a § 1 981 post-formation claim could be viewed as arising
under both subsections (a) and (b) of § 1981.
