                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0317p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                             Plaintiffs-Appellants, -
 RHODA GRIZZELL, et al.,
                                                      -
                                                      -
                                                      -
                                                          No. 05-3026
           v.
                                                      ,
                                                       >
 CITY OF COLUMBUS DIVISION OF POLICE, et al.,         -
                            Defendants-Appellees. -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                 No. 02-00883—Edmund A. Sargus, Jr., District Judge.
                                        Argued: November 30, 2005
                                  Decided and Filed: August 25, 2006
            Before: GUY and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Samuel N. Lillard, MOWERY & YOUELL, Dublin, Ohio, for Appellants. Paula J.
Lloyd, COLUMBUS CITY ATTORNEY’S OFFICE, Columbus, Ohio, for Appellees. ON BRIEF:
Samuel N. Lillard, Dianne D. Einstein, MOWERY & YOUELL, Dublin, Ohio, for Appellants.
Paula J. Lloyd, Pamela J. Gordon, COLUMBUS CITY ATTORNEY’S OFFICE, Columbus, Ohio,
for Appellees.
                                            _________________
                                                OPINION
                                            _________________
        JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants, twelve Caucasian male and
four Caucasian female officers of the Columbus Police Department (“CPD”), claim that they were
denied promotions to the rank of sergeant on account of their race and gender. Plaintiffs brought
suit against the City of Columbus’s Division of Police and CPD Chief James G. Jackson, alleging
that they were discriminated against in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and Ohio law. Plaintiffs argue that Jackson, who is an African-
American male, chose to promote nine officers to the rank of sergeant using a 1999 eligibility list
rather than a 2001 eligibility list because the use of the 1999 list ensured the promotion of three
African-American officers. Despite intricate civil service rules regulating the CPD’s promotional

        *
         The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
No. 05-3026            Grizzell, et al. v. City of Columbus, et al.                                Page 2


process, plaintiffs claim that Jackson effectively manipulated the civil service rules by choosing the
timing of the decision to promote. The district court granted defendants’ motion for summary
judgment. Plaintiffs timely appealed. For the following reasons, we affirm the district court’s
decision.
                                                    I.
        In November 2001, the CPD promoted nine officers to the rank of sergeant. Promotions to
the rank of sergeant are subject to Columbus’s civil service rules, the Columbus city charter, Ohio
law, and the union contract between the city and the Fraternal Order of Police (“FOP”). The process
of promotion involves numerous steps. To begin the process, the CPD determines that a vacancy
exists. If there is a vacancy, the police chief generally has the discretion to fill a position or to leave
the position vacant. The police chief also has the discretion to decide when to fill the vacancy.
Once the police chief decides to fill a vacancy, the CPD submits a “request for certification,” which
defines the type and number of positions available, to the Department of Public Safety (“DPS”). The
Director of the DPS is the legal “appointing authority” for any CPD promotions under the civil
service rules. The DPS director may approve the request for certification and forward it to the Civil
Service Commission (“CSC”). Upon receipt of the request for certification, the CSC certifies a
sufficient number of candidate names to fill the vacancies.
         Candidates are certified for promotion in order of their ranking on a preexisting “eligibility
list.” The officers are ranked on the eligibility list according to a combination of their seniority and
scores on a required civil service exam. Each eligibility list is valid for only two years. Candidates
who remain on an eligibility list when that list expires, but who wish to be considered for future
promotions, must retake the civil service exam. The certified candidates are then ranked on a
“certification list” in the same order that they appeared on the active eligibility list. The CSC sends
this certification list back to the DPS. The candidates on the certification list then undergo a PACE
(Promotional, Assessment, Career Evaluation) review to ensure that they are suitable for promotion.
If the PACE review reveals an area of concern, the candidate may be required to attend an interview
with a PACE reviewing board. The police chief receives a copy of the final PACE review. After
consideration of the PACE review, the police chief recommends candidates from the certification
list for promotion. The DPS director then reviews the police chief’s recommendations and appoints
chosen individuals.
        In the fall of 2001, nine CPD sergeants were activated to military duty as a result of their
reserve status following the terrorist attacks of September 11, 2001. The record reflects that, by the
middle of October, there were already eight sergeant vacancies as a result of the call-ups. During
the months of September, October, and November, Jackson held executive staff meetings with his
deputy chiefs in order to determine whether to replace those sergeants on military leave.
         The “1999 eligibility list” was set to expire on November 30, 2001, at which point the “2001
eligibility list” would become the active eligibility list. Deputy Chief Stephen Gammill testified
that, in late October or early November, he had a conversation with Deputy Chief Gary Thatcher,
who administers the promotional process for the CPD. Gammill claims that he told Thatcher that,
if promotions were to be made in November 2001, the decision of which list to use should be made
prior to the release of the 2001 eligibility list to avoid the appearance of impropriety. Gammill also
claims to have advised Thatcher to wait for the new list because there would be higher quality
candidates at the top of the 2001 list as opposed to number 50 through 59 on the 1999 list. Gammill
further testified that, a few days after his initial conversation with Thatcher, Thatcher told Gammill
that Thatcher had spoken with Jackson and that Jackson had decided to use the 2001 list to fill any
vacancies. Thatcher testified on the other hand that he has no recollection of telling Gammill that
Jackson had decided to use the 2001 list.
No. 05-3026           Grizzell, et al. v. City of Columbus, et al.                            Page 3


        In November 2001, Jackson told Mitchell Brown, the DPS director, that there was a need to
make promotions to sergeant. Brown agreed with Jackson’s inclination. Brown asked Brooke
Carnevale, a DPS human resource officer, to investigate promotional options. Carnevale
investigated the idea of “limited promotions,” which allow for the promotion of officers to rank of
sergeant in a limited capacity. If a sergeant returns from military duty, the limited sergeant is
demoted back to his original officer position. The demoted officer can then petition for
reinstatement; if the petition is granted, his name is placed at the top of the new eligibility list
notwithstanding his score on the civil service exam. If a sergeant on military duty does not return
and the limited sergeant remains in the post for one year, the limited sergeant automatically loses
the limited status and becomes a regular sergeant. Carnevale presented the limited promotion option
to Brown and Thatcher, and Thatcher in turn relayed the limited promotion option to Jackson.
Although limited promotions had never before been used for promotions to the “sworn ranks” of
sergeant, lieutenant, commander, or deputy chief, Carnevale explained to Thatcher that using limited
promotions was ideal in the case of military call-ups because of the potential for extended absences
and uncertain dates of return. Moreover, the limited-promotion option would allow all of the
sergeant vacancies to be filled without exceeding the authorized number of total sergeants. Jackson
concurred that limited promotions should be used. Brown testified that he told Jackson that
appointments would be made from the 1999 eligibility list. Jackson and Thatcher both testified that
Jackson directed Thatcher, sometime between November 17 and 19, to proceed with the limited
promotions.
        On November 19, 2001, the 2001 eligibility list was made public, and Jackson called the top
ten police officers on the new list to congratulate them. After the new list was made public, Jackson
met with Thatcher to discuss the promotions. Thatcher testified that Jackson was in a
“decision-making mode” during the meeting. Thatcher testified that he and Jackson discussed the
fact that the timing of the request to fill vacancies would affect whether the 1999 or 2001 list would
be used. Thatcher told Jackson that using the old list would allow three African-American officers
to be promoted to sergeant. Thatcher suggested that this was an opportunity to diversify the rank
of sergeant. Jackson and Thatcher discussed the three African-American officers on the 1999 list.
No other potential candidates, including those on the 2001 list, were discussed at that time.
        Commander Jay Evans, who manages the CPD’s personnel department, testified that, on
November 19, 2001, Thatcher directed him to make the official request for certification. On
November 20, 2000, the CPD submitted its request for certification to the DPS. The request for
certification was for nine limited promotions to the rank of sergeant. On November 21, 2001,
Carnevale sent the request for certification for the nine limited promotions to the CSC, which
received it on November 26, 2001. The CSC certified candidate names from the 1999 eligibility list
and forwarded a certification list to the DPS on November 27, 2001. On November 29, 2001, a
PACE review of the certified candidates was completed by Evans and forwarded to Jackson. On
November 30, 2001, after Carnevale had explained the concept of limited promotions to the
candidates on the certification list, nine police officers on the list were promoted to limited
sergeants.
       Six of the nine limited sergeants served one year and were automatically promoted to
sergeant. The other three limited sergeants were eventually demoted because three sergeants
returned from military duty; however, all three demoted sergeants were reinstated at the top of the
2001 list and were promoted to permanent sergeant positions from the 2001 list.
        In November 1999, eighty officers had started out on the 1999 eligibility list for promotion
to sergeant. By November 2001, forty-nine of those eighty officers had already been promoted or
their names had been removed, making number fifty the top-ranking candidate remaining on the
1999 eligibility list. Thus, the nine promoted officers were ranked numbers fifty through fifty-nine
No. 05-3026            Grizzell, et al. v. City of Columbus, et al.                               Page 4


on the 1999 eligibility list. Of the nine promoted officers, three are African-American officers and
six are Caucasian officers. All nine are males.
         Each plaintiff took the civil service exam in the fall of 2001 and was ranked on the 2001
eligibility list. Plaintiffs were ranked numbers 4, 6, 8, 9, 10, 11, 12, 14, 16, 17, 19, 21, 28, 31, 50,
and 55 on the 2001 eligibility list. Although three plaintiffs were also ranked on the 1999 list, no
plaintiff was ranked highly enough on the 1999 list to receive one of the nine promotions awarded
in November 2001.
        Plaintiffs brought suit in federal district court, asserting that their promotions to the rank of
sergeant were either delayed or prevented as a result of unlawful race or gender discrimination.
Defendants moved for summary judgment, which the district court granted. The district court held
that plaintiffs had not presented direct evidence of discrimination. Although plaintiffs established
a prima facie case of discrimination based on circumstantial evidence, the district court found that
defendants offered a legitimate nondiscriminatory reason for using the 1999 list and that plaintiffs
failed to show that this legitimate nondiscriminatory reason was pretext for discrimination.
                                                   II.
        Before turning to the merits of plaintiffs’ claims, we must address defendants’ argument that
plaintiffs lacked standing to bring their discrimination claims. Three elements are necessary for a
plaintiff to establish standing: (1) injury in fact, (2) a causal relationship between the injury and the
challenged conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.
Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663-64
(1993). Injury in fact means that the injury is concrete and particularized, and actual or imminent,
as opposed to conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
        Defendants argue that plaintiffs lack standing to bring their claims because they cannot show
concrete, particularized injury. According to defendants, plaintiffs have failed to present evidence
that the use of the 1999 list to make limited promotions caused their own promotions to sergeant to
be prevented or even significantly delayed. If the 2001 list had been used to promote officers to
sergeant, however, four of the sixteen plaintiffs would have been in the top nine eligible candidates.
These four plaintiffs would likely have received limited promotions. As for the remaining twelve
plaintiffs, they would have moved up the 2001 eligibility list, if it had been used, as the sergeant
positions were filled from that list. Given that the last promotion to sergeant off of the 1999 list
went to candidate number 59 on that list, and that the lowest ranking plaintiff on the 2001 list was
candidate number 55, it is likely that each of these twelve plaintiffs would have been promoted to
sergeant during the two years in which the 2001 list was active. Thus, use of the 1999 list likely
caused a delay in promotion to sergeant for each of these twelve plaintiffs. In sum, as a result of the
use of the 1999 list, four plaintiffs were prevented from being promoted to sergeant in November
2001, and twelve others were prevented from moving up the 2001 list and their promotions to
sergeant were thereby delayed. We find this alleged injury to be sufficiently concrete and
particularized to satisfy constitutional requirements.
         Defendants also argue that plaintiffs cannot show that their injuries are fairly traceable to the
challenged conduct because plaintiffs were not ranked highly enough on the 1999 eligibility list to
receive any of the nine promotions in November 2001. The challenged conduct alleged to be
discriminatory, however, is the timing of the decision to promote officers. Thus, assuming for the
moment that there was a discriminatory decision to “time” the promotions, it is clear that plaintiffs’
injuries – not receiving limited promotions in November 1999 or having promotions delayed by
virtue of not moving up the 2001 eligibility list – are causally connected to that decision. The
district court correctly held that plaintiffs had standing to bring their claims. We now turn to the
merits of those claims.
No. 05-3026           Grizzell, et al. v. City of Columbus, et al.                            Page 5


                                                 III.
        This court reviews the grant of summary judgment de novo. DiCarlo v. Potter, 358 F.3d
408, 414 (6th Cir. 2004). Summary judgment will be affirmed if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there [wa]s no genuine issue as to any material fact and that the moving party [wa]s entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). If “a reasonable jury could return a verdict for
the non-moving party,” summary judgment for the moving party is inappropriate. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the district court’s decision, this court
draws all justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
        In order to establish a discrimination claim under Title VII, plaintiffs must produce either
direct or circumstantial evidence of discrimination. DiCarlo, 358 F.3d at 414. Direct evidence, if
believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer's actions. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926
(6th Cir. 1999). Once plaintiffs produce direct evidence of discrimination, the burden shifts to the
employer to show that it would have taken the employment action even in the absence of
discrimination. Id.
                                                  A.
        Plaintiffs argue that they presented direct evidence of discrimination to the district court.
Specifically, they contend that Thatcher’s discussion with Jackson, during which he informed
Jackson that three African-American candidates would receive promotions if the 1999 list was used
and suggested to Jackson that using the 1999 list was an opportunity to diversify the rank of
sergeant, constituted direct evidence of discrimination. Direct evidence is “evidence that proves the
existence of a fact without requiring any inferences.” Rowan v. Lockheed Martin Energy Sys., Inc.,
360 F.3d 544, 548 (6th Cir. 2004). Thatcher’s statements to Jackson do not constitute direct
evidence of discrimination. Even if we assume that Thatcher compared the eligibility lists and
recommended that Jackson use the 1999 list because of the presence of African-American candidates
on that list, finding that Jackson based his decision on the racial composition of the 1999 list still
requires the inference that Jackson agreed with Thatcher’s reasoning and acted on it. Because this
inference is required, the fact that Thatcher discussed the three African-American candidates on the
1999 list with Jackson does not constitute direct evidence of discrimination. The district court
properly held that plaintiffs did not establish discrimination on account of race by direct evidence.
                                                  B.
        We now turn to plaintiffs’ attempts to prove discrimination by use of circumstantial
evidence. Applying the burden shifting framework of McDonnell Douglas Corporation v. Green,
411 U.S. 792, 802 (1973), plaintiffs may set forth a prima facie case of discrimination, at which
point a presumption arises that the employer unlawfully discriminated against plaintiffs. DiCarlo,
358 F.3d at 414. To set forth a prima facie case of discrimination based on a failure to promote,
plaintiffs must show: (1) they are members of a protected class; (2) they applied and were qualified
for promotion; (3) they were considered for and denied the promotion; and (4) other employees of
similar qualifications who were not members of the protected class received promotions. Sutherland
v. Michigan Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003). Additionally, in cases of “reverse
discrimination” where, as here, plaintiffs are not members of a protected class, this court has held
that the plaintiff must demonstrate “background circumstances to support the suspicion that the
defendant is that unusual employer who discriminates against the majority.” Zambetti v. Cuyahoga
Cmty. College, 314 F.3d 249, 255 (6th Cir. 2002) (quoting Murray v. Thistledown Racing Club, Inc.,
770 F.2d 63, 67 (6th Cir. 1985)) (alteration omitted); see also Sutherland, 344 F.3d at 614-15;.
No. 05-3026                Grizzell, et al. v. City of Columbus, et al.                                            Page 6


         Once plaintiffs establish a prima facie case of discrimination, the burden then shifts to the
defendants to articulate some legitimate, nondiscriminatory reason for the defendants’ action.
DiCarlo, 358 F.3d at 414. If the defendants carry this burden, plaintiffs must prove that the
legitimate reasons offered by defendants were in fact a pretext for discrimination. Id. at 414-15.
A plaintiff establishes pretext by showing that the reason offered by the defendant: (1) has no basis
in fact; (2) did not actually motivate the decision not to promote, or (3) was insufficient to warrant
the decision not to promote. Zambetti, 314 F.3d at 258 (citing Manzer v. Diamond Shamrock Chem.
Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).
         The district court held that plaintiffs established a prima facie case of discrimination based
on a failure to promote. Defendants argue that this decision was erroneous and they urge us to
affirm the district court’s judgment on the basis that plaintiffs cannot establish a prima facie case
of failure to promote. According to defendants, at the time the promotions were made, no plaintiff
was ranked highly enough on the active 1999 list to have received one of the nine promotions. Thus,
defendants argue that plaintiffs were not “qualified for promotion” at the time the decision was made
because they were not ranked highly enough on the 1999 list to be promoted, plaintiffs were not
“considered for” promotion because only those candidates on the 1999 list could be considered for
promotion, and plaintiffs did not possess “similar qualifications” as the promoted candidates because
they were on a different eligibility list. We reject the defendants’ argument that plaintiffs have failed
to establish a prima facie case because they were not ranked highly enough on the 1999 list. As we
have already discussed, the plaintiffs’ claim is that the CPD purposefully chose the time for
initiating the promotional process in order to gain the advantage of using the 1999 eligibility list
rather than the 2001 list so as to benefit certain individuals on account of their race. Therefore,
plaintiffs’ ranking on the 1999 list is not dispositive of their claim.
        We briefly turn to defendants’ argument that plaintiffs cannot show, under the fourth prong
of the prima facie case, that the promotions went to officers outside of plaintiffs’ protected class
because six of the nine officers who received promotions were Caucasian. Of course, three of the
promoted officers were African-American candidates. Although the lists in this case are not easily
categorized as inside or outside the protected class, we think that the proper focus is on the
individuals on the list for whose benefit the alleged discriminatory conduct was undertaken – here,
the African Americans. If the decision to promote at a certain time was made on the basis of race,
such decision was discriminatory notwithstanding the fact that some other Caucasian officers also
benefitted from the decision. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 323 (3d
Cir. 2000) (“[A]n employer does not have to discriminate against all members of a class to illegally
discriminate against a given member of that class.”).
        In sum, plaintiffs met each prong required to establish a prima facie case for failure to
promote.1 The burden therefore shifted to the defendants to articulate some legitimate
nondiscriminatory reason for promoting individuals using the 1999 eligibility list. According to the
defendants, the 1999 list was used because that was the list that was active at the time that the
decision to fill the vacancies was made. By early- or mid-November, Jackson felt that officers
should not have to work any longer without a sergeant and therefore decided that the promotions had
to be made. At that point, to purposefully delay the request for certification until the 2001 list was
effective would have been an improper circumvention of the civil service rules. Moreover, Jackson
believed that using the 1999 list was the fairest thing to do and that it would have been unethical for
him to delay the promotions until the 2001 list became effective.



         1
           Because we agree with the district court’s holding that plaintiffs failed to present evidence of pretext, we need
not determine whether the plaintiffs have satisfied the background circumstances requirement of reverse discrimination
– an issue not reached by the district court.
No. 05-3026                Grizzell, et al. v. City of Columbus, et al.                                            Page 7


       Plaintiffs argue that the defendants’ proffered legitimate nondiscriminatory reason –
compliance with the civil service rules – for the use of the 1999 list was a pretext for race and gender
discrimination. Plaintiffs have failed, however, to come forward with evidence that would allow a
reasonable jury to conclude that the civil service rules were not the legitimate reason behind the use
of the 1999 list. Completely lacking from the extensive record before us is any evidence that
Jackson, in deciding when to promote candidates, placed any weight on race.
         Plaintiffs place inordinate weight on the meeting between Jackson and Thatcher in which
the three African-American candidates on the 1999 list were discussed. Although Thatcher told
Jackson that the 1999 list had three African-American candidates and use of the 1999 list
represented an opportunity to diversify the rank of sergeant, there is no evidence that Jackson
compared the two lists or even knew the racial composition of the 2001 list. In fact, Thatcher
testified that the 2001 list was not discussed at the meeting. It is therefore difficult to understand
how Jackson could have made a race-based comparison between the eligibility lists. Indeed, without
some comparison of the lists, Jackson may have believed that using the 2001 list would have been
an equal or better opportunity to diversify the rank of sergeant. Although plaintiffs suggest that
Jackson knew the racial composition of the 2001 list because the list had been made public and
Jackson had called the first ten officers on the 2001 list to congratulate them, drawing such an
inference would be unreasonable. Jackson and Thatcher testified that Jackson had no first-hand
knowledge of the top-ranking individuals on the 2001 list. There are over 1800 officers in the
Columbus police department. Any suggestion that Jackson somehow knew the race of the 2001
candidates by calling them is purely speculative. Most important, however, even if we could infer
that Jackson knew the racial composition of the 1999 and 2001 lists, his knowledge of some of the
candidates’ race is not indicative of discriminatory conduct. Indeed, as we focus on the civil service
system’s use of eligibility lists, it is easy to lose sight of the fact that most employers know the races
of their employees. That Jackson may have known the candidates’ races does not alleviate the
plaintiffs’ burden of providing evidence that he acted on the basis of that knowledge. No evidence
exists on which a reasonable jury could conclude that Jackson’s conduct was racially motivated.
        Gammill’s testimony does not change our analysis. Gammill testified at his deposition that
he told Thatcher that Jackson should make a decision as to which eligibility list to use before the
2001 list was made public because, that way, no one could later claim that Jackson compared the
two lists. Gammill also testified that he told Thatcher that Jackson should use the 2001 list because
it consisted of better candidates and that Thatcher responded by telling Gammill that Jackson had
decided to use the 2001 list. The district court refused to consider Gammill’s testimony concerning
what Jackson told Thatcher because it was inadmissible hearsay. The district court characterized
Gammill’s testimony as hearsay within hearsay, requiring exceptions for both levels of hearsay
under Fed. R. Evid. 805. With regard to Jackson’s statements, the 2district court recognized that
these statements are party admissions under Fed. R. Evid. 801(d)(2). The district court would not
consider Thatcher’s statements to Gammill, however, because these statements were hearsay not
within any exception. We disagree. In our view, Thatcher’s statements also constitute party
admissions. Thatcher is an agent of a party under Fed. R. Evid. 801(d)(2)(D). “Rule 801(d)(2)(D)
is designed to bind the employer where one of its managerial employees makes a statement within
the scope of the employee’s duties as a manager.” Barner v. Pilkington N. Am., Inc., 399 F.3d 745,
750 (6th Cir. 2005); see also Carter v. Univ. of Toledo, 349 F.3d 269, 275 (6th Cir. 2003) (“‘[S]cope
of employment’ criterion extends beyond direct decision-makers.”); Hill v. Spiegel, Inc., 708 F.2d
233, 237 (6th Cir. 1983) (“[I]t is necessary . . . to show, to support admissibility, that the content of
the declarant’s statement concerned a matter within the scope of his agency”). In this case,

         2
           The district court specifically stated that Jackson’s statements “may be admissible as a statement against
interest under Fed. R. Evid. 801(d)(2).” Although the district court referred to the correct evidentiary rule, it mislabeled
Jackson’s statements as against interest. In fact, Jackson’s statement is a party admission, which is not hearsay and thus
not required to fit within an exception.
No. 05-3026           Grizzell, et al. v. City of Columbus, et al.                              Page 8


Thatcher’s statements were made within the scope of his agency. Thatcher was the deputy chief –
one of only five deputy chiefs reporting directly to Jackson – charged with managing the
promotional process for the CPD. When he spoke on the subject of promotions, he was speaking
within the scope of his employment.
       Our conclusion that Thatcher’s statements were not hearsay does not mean that those
statements constitute evidence of discrimination. Gammill did not offer any insight into why
Jackson allegedly had decided to use the 2001 list, and Gammill readily admitted that he did not
know why the 1999 list was ultimately used. Moreover, nothing in Gammill’s testimony calls into
question Jackson’s assertion that he chose not to delay the promotional process because a delay
would have been unfair and unethical. In short, Gammill’s testimony, although admissible, cannot
support an inference of discrimination.
        Plaintiffs also argue that they were more qualified than those candidates who received
promotion. Although consciously choosing a less-qualified candidate may constitute evidence of
pretext, see Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 577 (6th Cir. 2003) (citing Aka
v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc)), it is undisputed that all of the
employees ranked on an eligibility list are in fact qualified to be promoted. Indeed, it would defeat
the purpose of the civil service rules if the CPD could simply elect to forego consideration and
promotion of candidates ranked below a certain arbitrary number on an eligibility list. Indeed,
plaintiff Powell and Snyder were ranked numbers 55 and 59 on the 2001 list yet, as we have already
held, their standing to pursue their claims depends on our acceptance of their argument that their
chances of promotion did not expire until November 30, 2003. Finally, although an employer’s
choice of a less-qualified candidate may constitute evidence of discrimination in some instances,
even assuming that the plaintiffs were somehow more qualified than those on the 1999 list, the
relative qualifications of the candidates does not impugn Jackson’s belief that he effectively lacked
a choice in candidates.
        Plaintiffs also argue that the timing of the decision is suspicious, given that the request for
certification followed the release of the 2001 list. No reasonable inference of discrimination can be
drawn from the timing of the decision, however. All of the vacancies existed prior to the release of
the 2001 list. Indeed, plaintiffs offer evidence that the promotions were initially delayed. Plaintiffs
also do not challenge that Jackson and the CPD were aware that promotions would have to be made
in the weeks leading up to November 30, 2001. Although plaintiffs argue that Jackson’s timing was
suspicious, they fail to explain how Jackson could have legally and ethically delayed the promotions
until the 2001 list became active.
         Plaintiffs also argue that pretext has been shown by the fact that the November 2001
promotions deviated from the CPD’s past practice in a number of respects. Plaintiffs’ claim that the
CPD’s past practice was to delay promotions when an active list was set to expire is without support
in the record. Lieutenant Mark Gramlich, who works for the CPD’s personnel bureau, testified that
promotions are typically made right up until the expiration of an eligibility list. In response to
Gramlich’s testimony, plaintiffs rely only on the deposition testimony of William Capretta, the FOP
lodge president. Referring to the CPD’s past practices, Capretta said, “They’ll let an old list die on
out if it’s a day or two.” (emphasis added) However, plaintiffs have produced no evidence of an
occasion when the list was allowed to “die out” and Capretta could not recall a specific instance in
which it did. Nor do plaintiffs dispute that Jackson made the decision to promote no later than
November 19, 2001. Thus, even assuming the truth of Capretta’s statement, the CPD’s “past
practice” of letting a list “die” with a day or two remaining before it expires is readily
distinguishable from the situation here, where nine vacancies arose over the course of a few months
and were ultimately filled with more than ten days remaining on the life of the active eligibility list.
No. 05-3026                Grizzell, et al. v. City of Columbus, et al.                                             Page 9


        Plaintiffs also claim that the November 2001 promotions were “suspicious” because they
involved limited rather than regular promotions; they deviated from past practice in that no advance
information was provided to the candidates and there was no announcement of the promotions in
the daily bulletin; and the promotions occurred in the middle of a pay period, which was atypical.
 Again, we note that many of these claims of “suspicious” irregularities are simply not supported
on the record. For example, plaintiffs claim in their brief that “Capretta believes that [Jackson and
Brown] did not notify him of their plans for the promotions because they feared he would try to
prevent them from occurring.” In actuality, when Capretta was asked if it would be rare for Jackson
not to mention the upcoming promotions to him, Capretta said, “Not for Chief Jackson probably
because he’s not real talkative and stuff on things, and – but, you know, that wasn’t the reason I was
in there [meeting with Jackson].” Likewise, the only record evidence cited by plaintiffs in support
of their claim that promotions do not normally occur in the middle of a pay period is the
unsubstantiated statement of one of the individual plaintiffs. Plaintiffs’ claim that the use of limited
promotions were somehow related to the promotion of minorities is untenable. The only evidence
in the record is that the “limited promotion” option was championed by Carnevale at the DPS, not
the CPD. Nowhere have plaintiffs alleged that Carnevale or Brown acted based on a racially
discriminatory motivation. Even if we were to credit plaintiffs’ claims absent proper evidentiary
support, such alleged irregularities do not create an inference of discrimination. The use of limited
promotions, the rush to complete the process once the decision was made, and the lack of ceremonial
pomp are explained by the fact that these vacancies arose suddenly and in large numbers following
the terrorist attacks of September 11, 2001. It is also obvious that the vacancies arose at an
inopportune time, just before the eligibility lists were set to change. Nonetheless, all of the evidence
indicates that the promotions were made in accord with the civil rules and in a fairly typical fashion.
We are therefore unable to infer a discriminatory motivation from the process and timing itself.3
        Finally, the opinions of Gammill, Evans, and Gramlich that the decision to use the 1999 list
was, or may have been, based on race does not constitute evidence of pretext. It is well settled that
“[m]ere personal beliefs, conjecture and speculation are insufficient to support an inference of []
discrimination.” Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) (quoting Chappell
v. GTE Products Corp., 803 F.2d 261, 268 (6th Cir. 1986)) (first alteration in original).
        Plaintiffs have failed to present any evidence that Jackson acted on the impermissible basis
of race and not the permissible basis of the civil service rules’ requirements and his ethical
obligations in accordance therewith. The district court’s decision to grant summary judgment to
defendants on plaintiffs’ claims of racial discrimination was therefore correct.
                                                            IV.
        Plaintiffs presented no evidence, aside from their claims that the use of limited promotions
and the actual promotional process departed from past practice, that the decision to use the 1999 list
was a pretext for gender discrimination. The district court therefore properly granted summary
judgment on the gender discrimination claims.




         3
           This conclusion is supported by the arbitrator’s finding that the promotional appointments did not violate the
contract or any binding past practice. The arbitrator explained that although the 1999 list expired before the appointments
were made, it was valid on the date that the eligibles were certified. The arbitrator added that to certify as eligible
officers who were not on the unexpired list but were on the not-yet-effective list would have resulted in a false
certification, prematurely using the new list and effectively shortening the life of the existing list to something less than
the required two years.
No. 05-3026          Grizzell, et al. v. City of Columbus, et al.                         Page 10


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