                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0127n.06

                                         No. 17-1818

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
TRESHA K. NEFF,                                        )                    Mar 12, 2018
                                                       )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
CITY OF EAST LANSING,                                  )      COURT FOR THE WESTERN
                                                       )      DISTRICT OF MICHIGAN
       Defendant-Appellee.                             )
                                                       )
                                                       )



Before: SILER and LARSEN, Circuit Judges; BLACK, District Judge.*

       LARSEN, Circuit Judge. Contending that she was overlooked for promotions and denied

training, tuition reimbursement, and favorable assignments and scheduling because of her sex,

plaintiff Tresha Neff sued her employer, defendant City of East Lansing, alleging sex

discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et

seq., and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2102

et seq. The district court granted summary judgment to the City on all claims. We AFFIRM.

                                               I.

       The City has employed Neff as a police officer in the East Lansing Police Department

(ELPD) since 1994. When Neff initiated this case in 2016, she held the rank of sergeant, having

last been promoted in 2011. While the case was pending below, the City promoted Neff to


*
 The Honorable Timothy S. Black, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 17-1818
Neff v. City of East Lansing

lieutenant.   Neff claims that throughout her employment, the City denied her training

opportunities, tuition reimbursement, and favorable scheduling and assignments, while it

afforded those perks to male employees. Neff also claims that, prior to her promotions to

sergeant and lieutenant, the City had on numerous occasions passed her over for promotions in

favor of male candidates.

       The only promotion decisions before this Court, however, occurred in 2013 and 2014,

when the City promoted Officer Stephen Gonzalez and Officer Scot Sexton, respectively, over

Neff and other candidates.1 Police Chief Juli Liebler, the decision-maker for both promotion

decisions, explained in a sworn declaration that she considered both “measurable” and

“immeasurable” qualifications when deciding whom to promote.2 She stated, “‘Measurable’

qualifications are qualifications I can see on a resume, like a candidate’s education or years of

experience; or qualifications I can see in a performance evaluation, like competency.” On the

other hand, “‘[i]mmeasurable’ qualifications are qualifications that are not so easy to see on

paper, and they include qualifications like being a good leader, setting a good example for others,

making sacrifices for the ELPD, being proactive, doing more than just the minimum, working

well with peers, and earning the respect of your co-workers.” Liebler also stated that most

candidates had similar “measurable” qualifications, so it was often the “immeasurable”

qualifications that distinguished the candidates.          She believed that “‘immeasurable’


1
  The district court concluded that Neff’s Title VII claims for denial of promotions occurring
prior to January 8, 2015, and all such ELCRA claims occurring prior to January 25, 2013, were
time-barred, and that any argument related to a promotion in 2016 was not before the court
because Neff did not include the promotion in her complaint. On appeal, Neff does not
challenge these conclusions and, as such, has forfeited any argument to the contrary. See
Kovacic v. Cuyahoga Cty. Dep’t of Children & Family Servs., 606 F.3d 301, 307 (6th Cir. 2010).
2
  Under the parties’ collective bargaining agreement, she had discretion to make promotions
based on “length of service, quality of service and supervisory potential.”
                                                -2-
No. 17-1818
Neff v. City of East Lansing

qualifications, like leadership, respect of co-workers, being engaged in and willing to sacrifice

for the job, become more important in lieutenant and captain promotions, because those

command officers perform primarily supervisory and administrative duties, and less actual police

work.”

         Liebler explained that when she promoted Gonzalez over Neff and other candidates in

2013, most candidates had similar “measurable” qualifications, but that Gonzalez had a slight

advantage in terms of education because he already had one master’s degree and was working on

another. Moreover, she believed that in terms of “immeasurable” qualifications, Gonzalez was

the most qualified: “he was a good supervisor, was very level-headed, made good job decisions,

was supportive of the administration, and was very engaged in the job.” Informal feedback from

other officers told Liebler that Gonzalez was well-respected by his co-workers and subordinates.

Liebler “decided that Mr. Gonzalez’s superior leadership skills outweighed the other candidates’

seniority and experience, because it was his leadership skills that would make him a good

lieutenant, not having a few more years of policing experience.”

         For the 2014 promotion of Sexton over Neff and other candidates, all candidates again

had similar “measurable” qualifications, but it was the “immeasurable” qualifications that

distinguished Sexton from the rest. Based on her observations of Sexton’s performance as a

supervisor, Liebler believed that he “was a good supervisor that was committed and engaged in

the job, regularly mentored his subordinates, and was good at following through on tasks and

being proactive, sometimes solving problems before he was even asked to do so.” She further

stated that he made sacrifices for the ELPD and set a good example by working at undesirable

times and working often.




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No. 17-1818
Neff v. City of East Lansing

       Neff had not displayed similar leadership qualities, according to Liebler.           Liebler

explained that Neff “would only schedule herself in a way that benefitted her, not the ELPD” by

“scheduling herself for just the bare minimum, while also taking advantage of overtime and

holiday pay opportunities [and] leaving other officers to work the less desirable times.” Liebler

concluded that Neff set a poor example for other officers.3 Liebler also cited Neff’s lack of

communication and follow-through as examples of her deficient leadership and supervisory

skills. Finally, Liebler noted that, when deciding whom to promote in 2014, she asked captains

and lieutenants for their views of the candidates; the three who replied ranked Neff as the least

qualified for promotion.

       Nonetheless, believing that the City’s actions against her were based on her sex, not

merit, Neff sued the City, raising claims of sex-based disparate treatment in violation of Title VII

and the ELCRA. She also raised a claim of sex-based disparate impact in violation of Title VII,

asserting that the City’s promotion process systematically disfavored women. The City moved

for summary judgment on all claims. The district court granted the City’s motion and dismissed

the case. Neff appealed to this Court.

                                                II.

       Only Neff’s disparate-treatment claim for failure to promote is properly before us.4 That

claim is based not on direct evidence of sex discrimination, but circumstantial evidence, which


3
  Chief Jeff Murphy, who took over as chief after Liebler, likewise had concerns that Neff set a
“terrible example” for younger officers by her selfish scheduling of vacation time and holiday
hours.
4
  The district court concluded that Neff had forfeited any argument that the City was not entitled
to summary judgment on her disparate-treatment claims based on denial of training, tuition
reimbursement, and favorable scheduling and assignments; she had forfeited these claims by not
addressing, or only offering perfunctory arguments as to how, she was treated differently than
similarly situated male employees, a necessary predicate to Neff establishing a prima facie case
                                                -4-
No. 17-1818
Neff v. City of East Lansing

means we proceed under the McDonnell Douglas–Burdine test. See Johnson, 215 F.3d at 572.5

Under that test, Neff “bears the burden of establishing a prima facie claim of discrimination.”

White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 238 (6th. Cir. 2005). But the City

conceded below that Neff could establish a prima facie case of discrimination for failure to

promote. The burden then shifted to the City “to proffer a legitimate, non-discriminatory reason

for the employment decision at issue.” Id. It did: that Neff was not the most qualified candidate.

Because the City offered a legitimate, nondiscriminatory reason, Neff bears the burden of

establishing that the City’s “stated reason is mere pretext for its true discriminatory motives.” Id.

Neff may do so “(1) by showing that the proffered reason had no basis in fact; (2) by showing

that the proffered reason did not actually motivate the employer’s conduct[;] or (3) by showing

that the proffered reason was insufficient to warrant the challenged conduct.” Id. at 245.

       Neff argues that the City’s proffered reason—that Neff was not the most qualified

candidate—has no basis in fact and was insufficient to warrant choosing Gonzalez and Sexton

over her. Neff claims that she was the more qualified candidate in both instances in terms of


of discrimination. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572–73 (6th Cir. 2000). On
appeal, Neff does not challenge the court’s conclusion that she forfeited these claims, and again
fails to address, in anything beyond cursory statements, the City’s argument that she has failed to
show that the male employees were similarly situated to her. She thus has forfeited these claims.
Kovacic, 606 F.3d at 307. The court also found that Neff had forfeited any argument regarding
her disparate-impact claim. Neff now argues that this was error, contending that it was the
court’s duty to inquire into the record to determine whether genuine issues of fact remained, even
absent argument on her part. It was not. See Wardle v. Lexington-Fayette Urban Cty. Gov’t, 45
F. App’x 505, 509 (6th Cir. 2002) (per curiam) (“[A] district court is not required to search the
record to determine whether genuine issues of material fact exist when the non-moving party has
failed to point them out.”); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.
1989) (“The trial court no longer has the duty to search the entire record to establish that it is
bereft of a genuine issue of material fact.”).
5
 ELCRA and Title VII claims are assessed under the same evidentiary framework. See
Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 652 (6th Cir. 2012); Sniecinski v. Blue
Cross & Blue Shield of Mich., 666 N.W.2d 186, 193 (Mich. 2003).

                                                -5-
No. 17-1818
Neff v. City of East Lansing

experience, seniority, and training. “Evidence that the plaintiff was more qualified than the

successful applicant can in some circumstances be sufficient to raise a genuine issue of material

fact that the employer’s proffered explanation is pretextual.” Risch v. Royal Oak Police Dep’t,

581 F.3d 383, 391 (6th Cir. 2009). But in cases such as this, where “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.” Bender v. Hecht’s

Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006).

       Here, Neff’s only evidence in support of her claim is that she has been with the ELPD

approximately three years longer than Gonzalez, and approximately five years longer than

Sexton, and that she took more training classes than either candidate. This is not enough for

Neff to show that the City’s legitimate, nondiscriminatory reason was a mere pretext for

discrimination. Like most employers, the ELPD does not grant promotions solely on the basis of

an employee’s length of employment. While Liebler considered the candidates’ education and

experience when making her decisions, she found that the candidates were relatively equal as to

those criteria. But, as one would expect when promoting an employee to a leadership position,

Liebler also considered the candidates’ leadership skills and ability to work with others. See

Browning v. Dep’t of the Army, 436 F.3d 692, 696–97 (6th Cir. 2006) (“[E]mployment-

discrimination laws do not diminish lawful traditional management prerogatives in choosing

among qualified candidates, and an employer has great flexibility in choosing a management-

level employee.” (citations and brackets omitted)). Finding, as described above, that Gonzalez

and Sexton were superior to Neff in those areas, Liebler promoted them over Neff.




                                                -6-
No. 17-1818
Neff v. City of East Lansing

          Although Neff does not challenge Liebler’s sworn declaration directly, she criticizes the

City’s reliance on Gonzalez’s and Sexton’s “immeasurable” qualifications over her own superior

“measurable” qualifications. This Court has recognized “that subjective evaluation processes

intended to recognize merit provide ready mechanisms for discrimination.” Grano v. Dep’t of

Dev., 699 F.2d 836, 837 (6th Cir. 1983). “[T]he legitimacy of the articulated reason for the

employment decision is subject to particularly close scrutiny where the evaluation is subjective

. . . .” Id. “The ultimate issue in each case is whether the subjective criteria were used to

disguise discriminatory action.” Id.

          But Neff gives the Court little with which to closely scrutinize Liebler’s decisions. She

claims that the City cannot articulate what “immeasurable” qualities Gonzalez and Sexton

possessed but that Neff did not. Yet Liebler, in fact, did just that, by citing concrete examples,

including Neff’s self-serving scheduling decisions and poor handling of prior projects, to

establish that Neff lacked leadership skills that Gonzalez and Sexton possessed. Moreover, Neff

does not challenge any of Liebler’s conclusions regarding the subjective qualifications as

erroneous or false, or otherwise explain how the criteria were a disguise for discriminatory

action.

          Neff, therefore, has not contradicted the evidence offered by the City in support of its

legitimate, nondiscriminatory reason for the promotion decisions—that Neff was not the most

qualified candidate. Although we are to look closely at decisions made on the basis of subjective

criteria, Neff has not shown that the use of subjective criteria here was a disguise for

discrimination. Id. Instead, all that Neff has offered this Court is her own subjective belief that

she was more qualified than others who were promoted and that she was discriminated against

based on her sex. That is insufficient to show pretext and overcome a motion for summary


                                                 -7-
No. 17-1818
Neff v. City of East Lansing

judgment.6 See Mitchell v. Toledo Hosp., 964 F.2d 577, 584–85 (6th Cir. 1992) (concluding that

the plaintiff could not establish pretext based on statements that were “nothing more than

rumors, conclusory allegations and subjective beliefs which are wholly insufficient evidence to

establish a claim of discrimination as a matter of law”); see also Briggs v. Potter, 463 F.3d 507,

516 (6th Cir. 2006) (stating that a plaintiff’s subjective beliefs regarding her “qualifications in

relation to those of other applicants, without more, cannot sustain acclaim of discrimination”

(citation omitted)). Neff has failed to meet her burden of showing pretext, and the district court

correctly granted summary judgment in the City’s favor on her disparate-treatment claim for

failure to promote.

                                              ***

       We AFFIRM the judgment of the district court in favor of the City.




6
  For the same reasons, Neff’s “expert report” is unpersuasive. Although the report concludes
that it is “highly probable” that Neff was passed over for Sexton because of her sex, the report
offers only the same arguments that Neff does now—that Neff had more experience, seniority,
and training. Other peculiarities call into question the strength of the report. The report is
unsworn. See Pack v. Damon Corp., 434 F.3d 810, 815 (6th Cir. 2006) (“The [expert report] is
unsworn and thus is hearsay, which may not be considered on a motion for summary
judgment.”). And the report’s author does not explain his qualifications or why any
qualifications that he does have render him able to speak to the issue of sex discrimination. Nor,
for that matter, does Neff offer any such explanation.
                                                -8-
