        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206             2    Carter v. University of Toledo              No. 02-3842
    ELECTRONIC CITATION: 2003 FED App. 0401P (6th Cir.)
                File Name: 03a0401p.06                      Rowen, SPENGLER NATHANSON, Toledo, Ohio, for
                                                            Appellee.
UNITED STATES COURT OF APPEALS                                                  _________________
              FOR THE SIXTH CIRCUIT                                                 OPINION
                _________________                                               _________________

 CAROLYN CARTER ,                X                            RONALD LEE GILMAN, Circuit Judge. Dr. Carolyn
                                  -                         Carter, who is African-American, brought suit against her
         Plaintiff-Appellant,                               former employer, the University of Toledo, alleging that the
                                  -
                                  -  No. 02-3842            University failed to renew her contract as a visiting professor
           v.                     -                         because of her race. The district court granted the
                                   >                        University’s motion for summary judgment, concluding that
                                  ,                         Carter had failed to show any direct evidence of
 UNIVERSITY OF TOLEDO,            -
         Defendant-Appellee. -                              discrimination and had also failed to establish that the
                                                            legitimate, nondiscriminatory reasons given by the University
                                 N                          for not renewing her contract were a pretext to disguise racial
      Appeal from the United States District Court          discrimination. For the reasons set forth below, we
      for the Northern District of Ohio at Toledo.          REVERSE the judgment of the district court and REMAND
     No. 01-07307—David A. Katz, District Judge.            for further proceedings consistent with this opinion.

               Argued: October 22, 2003                                         I. BACKGROUND

        Decided and Filed: November 12, 2003                  The University of Toledo hired Carter in January of 1996
                                                            as an Assistant Professor of Curriculum and Instruction in the
 Before: KEITH, DAUGHTREY, and GILMAN, Circuit              University’s College of Education. Carter’s assistant
                    Judges.                                 professorship was a tenure-track faculty position. In October
                                                            of 1996, the University’s Personnel Committee recognized
                  _________________                         Carter as having shown “good progress in her teaching,
                                                            professional activities and service.”        The Personnel
                       COUNSEL                              Committee unanimously recommended that her faculty
                                                            appointment be renewed. Professor James R. Gress, the
ARGUED: John D. Franklin, LAW OFFICES OF JOHN D.            chairman of Carter’s department, echoed the Committee’s
FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant.         sentiments in his support for Carter’s reappointment.
Cheryl F. Wolff, SPENGLER NATHANSON, Toledo, Ohio,
for Appellee. ON BRIEF: John D. Franklin, LAW                 As a result of these favorable recommendations, the
OFFICES OF JOHN D. FRANKLIN & ASSOCIATES,                   University renewed Carter’s appointment for two years and
Toledo, Ohio, for Appellant. Cheryl F. Wolff, Theodore M.   awarded her a merit pay increase. Carter, however,

                            1
No. 02-3842             Carter v. University of Toledo      3    4    Carter v. University of Toledo               No. 02-3842

voluntarily resigned from her tenure-track faculty position in   two were Sandra McKinley and Robin Rayfield, both
May of 1997 to take an administrative position in the Jackson,   Caucasian.
Michigan school district. She left the University in July of
1997 after teaching the first of the summer school sessions.        When she had not heard anything about the renewal of her
                                                                 visiting professorship, Carter contacted Dr. Earl Murry, the
  Due to another change in career plans, Carter returned to      University’s Vice Provost. Murry’s duties as Vice Provost
the University of Toledo as a visiting faculty member for the    included acting as chief negotiator for the faculty’s collective
1999-2000 academic year. Dr. Charlene Czerniak, who was          bargaining agreements, coordinating faculty recruiting, hiring,
then Interim Dean of the College of Education, extended          training, and orientation, advising the Provost on tenure and
Carter an offer for the visiting professorship in the            promotions, reviewing salary matters, and ensuring
Educational Administration and Supervision (EDAS)                compliance with affirmative action requirements. According
program in the College of Education’s Department of              to Carter, Murry said that he would investigate the matter and
Foundations and Leadership.            Carter accepted the       get back to her. When Murry did not promptly get in touch
appointment in the EDAS program, as did three other visiting     with Carter, she called him back to ask whether he had any
professors—Louis Barsi, Brenda Lanclos, and Richard St.          information about the renewal of her contract.
John—who were all Caucasian.
                                                                    Murry told Carter that he had not yet discussed the issue
  The University did not renew Carter’s visiting-professor       with Czerniak, and then, according to Carter, volunteered that
appointment after the 1999-2000 academic year. In July of        “[Czerniak] is trying to whitewash the college of education
2000, Carter sent an e-mail message to Czerniak inquiring        and I am not going to let her do this.” Carter also asserts that
about the renewal of her contract with the University for the    Murry “told me that [Czerniak] was trying to get rid of the
following year. Czerniak responded that the University had       black professors and that he was in a struggle with her
met its hiring needs for the year and would not be extending     involving the appointment of an additional black professor.”
Carter’s appointment.                                            When she contacted him a third time to find out whether her
                                                                 appointment would be renewed, Carter claims that Murry said
  Carter was not the only visiting professor whose contract      “I don’t know what’s going on, they’re a bunch of racists over
was not renewed for the 2000-2001 academic year. Neither         there.” Murry denies making any of these statements.
St. John, who like Carter was teaching in the EDAS program,
nor Mary Anne Stibbe, a visiting professor in the College of        Carter sued the University of Toledo in June of 2001. She
Education’s Department of Curriculum and Psychological           alleged that the University discriminated against her because
Studies, were reappointed for 2000-2001. Both St. John and       of her race in violation of 42 U.S.C. §§ 2000(e)-2000(e)-17
Stibbe are Caucasian.                                            (Title VII), 42 U.S.C. § 1981, and Ohio Revised Code
                                                                 § 4112.02 and § 4112.99. Carter also claimed that the
  Barsi and Lanclos, the other two EDAS visiting professors,     University subjected her to a racially hostile work
were rehired for the following academic year, but not in the     environment in violation of Title VII and Ohio law. The
EDAS program. Three new visiting professors were hired in        University moved for summary judgment, arguing that Carter
the EDAS program for the 2000-2001 academic year. One            had failed to present either direct or circumstantial evidence
was Bunk Adams, who is African-American, and the other           of racial discrimination, and asserting that her hostile work
No. 02-3842              Carter v. University of Toledo       5    6    Carter v. University of Toledo             No. 02-3842

environment claims were without merit because she had not          discrimination claim, Carter was required to either “present
presented any evidence supporting these claims.                    direct evidence of discrimination or introduce circumstantial
                                                                   evidence that would allow an inference of discriminatory
  In June of 2002, the district court granted the University’s     treatment.” Johnson v. Kroger Co., 319 F.3d 858, 864-65
motion for summary judgment. Carter filed a timely appeal.         (6th Cir. 2003). Carter argues that the alleged comments
In her briefs on appeal, however, Carter does not address the      made by Murry constitute direct evidence of discrimination.
district court’s ruling on her claims of a racially hostile work   She points to three comments purportedly made by him:
environment. We therefore consider those arguments waived.         (1) that Czerniak was “trying to whitewash the College of
See Farm Labor Org. Comm. v. Ohio State Highway Patrol,            Education” faculty, (2) that Murry was struggling with
308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is well established     Czerniak to appoint African-American professors, and (3) that
that an issue not raised in a party’s briefs may be deemed         “the decision-makers at the College of Education are a bunch
waived.”).                                                         of racists.”
                       II. ANALYSIS                                  The district court began its analysis by considering whether
                                                                   or not Carter would be allowed to testify as to these
A. Standard of review                                              comments allegedly made by Murry. We do not need to
                                                                   address this evidentiary issue with regard to our analysis of
   We review a district court’s grant of summary judgment de       the direct-evidence argument, however, because even if
novo. Therma-Scan, Inc. v. Thermoscan, Inc. 295 F.3d 623,          Murry’s comments are admissible as nonhearsay, they do not
629 (6th Cir. 2002). Summary judgment is proper where              constitute direct evidence of discrimination against Carter
there exists no genuine issue of material fact and the moving      under controlling Sixth Circuit precedent.
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). In considering a motion for summary judgment, the          This court has held that comments made by individuals
district court must construe all reasonable inferences in favor    who are not involved in the decision-making process
of the nonmoving party. Matsushita Elec. Indus. Co. v.             regarding the plaintiff’s employment do not constitute direct
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central          evidence of discrimination. See Hopson v. DaimlerChrysler
issue is “whether the evidence presents a sufficient               Corp., 306 F.3d 427, 433 (6th Cir. 2002) (holding that a
disagreement to require submission to a jury or whether it is      company manager’s opinion that “race was a factor” in the
so one-sided that one party must prevail as a matter of law.”      company’s decision not to promote the plaintiff was not direct
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52              evidence for purposes of the plaintiff’s discrimination claim
(1986).                                                            because the manager had “no involvement in the decision-
                                                                   making process with respect to the particular jobs at issue”).
B. Direct evidence of discrimination                               Murry was not a decision-maker with regard to the renewal of
                                                                   Carter’s visiting professorship. His statements therefore
  We shall consider Carter’s federal and state-law                 cannot be considered direct evidence of racial discrimination
discrimination claims under the Title VII framework because        against Carter.
Ohio’s requirements are the same as under federal law. See
Ohio Civil Rights Comm’n v. Ingram, 630 N.E.2d 669, 674
(Ohio 1994). To establish a Title VII employment
No. 02-3842              Carter v. University of Toledo          7   8        Carter v. University of Toledo           No. 02-3842

C. Circumstantial evidence                                               3.    Carter spent approximately half of her time in the
                                                                               1999-2000 academic year providing consulting
   Where a plaintiff fails to present direct evidence of                       services to the operators of charter schools in
discrimination, the burden-shifting framework first articulated                Detroit.
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and refined by Texas Department of Community Affairs v.                  4.    Carter was occasionally unavailable to students due
Burdine, 450 U.S. 248 (1981), applies. Johnson, 319 F.3d at                    to her charter school activities.
865-66. The plaintiff must first present a prima facie case of
discrimination. Id. at 866. Establishing a prima facie case            The burden thus shifted back to Carter to show that the
creates a rebuttable presumption of discrimination, and the          University’s reasons were pretextual. St. Mary’s Honor
burden then shifts to the defendant to articulate a legitimate,      Center v. Hicks, 509 U.S. 502, 508 (1993). Determining
nondiscriminatory reason for taking the challenged                   whether the reasons proffered by an employer are pretextual
employment action. Id. If the defendant satisfies this burden,       requires a heightened examination of “the specific proofs and
the plaintiff “must then prove that the proffered reason was         rebuttals of discriminatory motivation the parties have
actually a pretext to hide unlawful discrimination.” Id.             introduced.” Id. at 516. To demonstrate pretext, a plaintiff
(internal citation omitted).                                         may show that the defendant’s proffered reason “(1) has no
                                                                     basis in fact, (2) did not actually motivate the defendant’s
  To establish a prima facie case of discrimination, a plaintiff     challenged conduct, or (3) was insufficient to warrant the
must show that (1) she is a member of a protected group,             challenged conduct.” Seay v. Tennessee Valley Auth., 339
(2) she was subject to an adverse employment decision,               F.3d 454, 463 (6th Cir. 2003) (internal citations omitted).
(3) she was qualified for the position, and (4) she was
replaced by a person outside of the protected class. Kline v.          Carter puts forth two arguments as to why the University’s
Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997).           proffered reasons for not renewing her contract “did not
The University does not dispute that Carter could establish a        actually motivate the defendant’s challenged conduct.” See id.
prima facie case of race discrimination.                             First, she contends that Murry’s alleged comments concerning
                                                                     the “bunch of racists” at the University and Czerniak’s
  In response, however, the University offered the following         purported attempt to “whitewash the faculty” show that the
“legitimate, nondiscriminatory reasons” for not retaining            above reasons were pretextual. Second, Carter points out that
Carter as a visiting professor:                                      two similarly situated Caucasian visiting professors in the
                                                                     EDAS program had their contracts renewed.
  1.   Carter did not apply for a regular tenure track faculty
       position in the EDAS program when one was                       Carter’s stronger argument is that Murry’s alleged
       advertised in 2000.                                           comments demonstrate that the University’s proffered reasons
                                                                     did not actually motivate its conduct. To analyze Carter’s
  2.   Carter, whose regional educational experience was             argument on this point, we must decide whether Carter would
       based upon her work in Michigan, did not have the             be allowed to testify at trial regarding Murry’s alleged
       appropriate Ohio connections to aid in University             comments. If the comments are deemed to be hearsay, then
       recruiting.                                                   the evidence could not be considered on summary judgment.
                                                                     See Jacklyn v. Schering-Plough Healthcare Prods. Sales
No. 02-3842              Carter v. University of Toledo       9    10   Carter v. University of Toledo               No. 02-3842

Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“Hearsay evidence        that he had had with other Spiegel employees about Hill’s
may not be considered on summary judgment.”). Whether the          termination. According to Baker, three Spiegel employees
proffered evidence is hearsay under the Federal Rules of           told him that Hill had been discharged because of his age.
Evidence is a question of law that we review de novo. Id.          The court held that “there was no basis for finding that the
                                                                   statements of these declarants concerned ‘a matter within the
  The district court found that Murry’s alleged comments as        scope of [their] agency,’” reasoning that there was no
offered by Carter in her deposition were admissible as             evidence that any of the declarants were involved in the
nonhearsay under Rule 801(d)(2)(D) of the Federal Rules of         decision to terminate Hill. Id. at 237 (alteration in original).
Evidence. This rule provides, in relevant part, that a
“statement is not hearsay if . . . [t]he statement is offered        At first glance the holding appears to support the
against a party and is . . . a statement by the party’s agent or   University’s argument that only comments by direct decision-
servant concerning a matter within the scope of the agency or      makers can qualify as nonhearsay under Rule 801(d)(2)(D).
employment, made during the existence of the relationship.”        The court’s analysis, however, went beyond the simple
Although the district court concluded that the alleged             question of whether the declarants were direct decision-
comments would be admissible as nonhearsay, it reasoned            makers. It looked to the scope of each declarant’s
that the purported remarks were too isolated to show pretext       employment and noted that there was one “about whose
on the part of the University.                                     duties and responsibilities [the plaintiff] testified he was
                                                                   uncertain,” a second who became a regional manager of
   The University defends the district court’s basis for           Spiegel’s catalog order division after Hill was discharged,
discounting the proffered testimony, but also argues that the      and a third whose job was unrelated to Hill’s. Id. The court
alleged comments do not satisfy the requirements of Rule           concluded that “[t]he mere fact that each of these men was a
801(d)(2)(D) because “[t]he record is clear that Murry had         ‘manager’ within the expansive Spiegel organization is
nothing to do with the College of Education’s substantive          clearly insufficient to establish that matters bearing upon
decisions regarding the hiring and retention of visiting           Hill’s discharge were within the scope of their employment.”
professors.” Its position appears to be that only statements       Id. Whether a statement qualifies as nonhearsay under Rule
made by declarants who are direct decision-makers                  801(d)(2)(D), therefore, goes beyond simply determining if
concerning the adverse employment action at issue can              the declarant is a direct decision-maker with regard to the
qualify as nonhearsay under Rule 801(d)(2)(D).                     adverse employment action.
   The University cites Hill v. Spiegel, Inc., 708 F.2d 233 (6th     In addition to Hill, two other Sixth Circuit cases support
Cir. 1983), to support its argument. In Hill, the court            this broader reading of Rule 801(d)(2)(D). This court rejected
discussed the application of Rule 801(d)(2)(D) in an age           an employer’s argument that statements made by someone
discrimination case. Spiegel, the well-known mail order            who was not a direct decision-maker were irrelevant in
company, had terminated Emery Hill, who was 56 years old           Johnson v. Kroger Co., 319 F.3d 858, 868 (6th Cir. 2003).
at the time and a regional manager of Spiegel’s catalog-order      The court reasoned that “[a]lthough remarks made by an
division. In appealing an adverse jury verdict against it,         individual who has no authority over the challenged
Spiegel argued that the admission of testimony given by            employment action are not indicative of discriminatory intent,
Matthew Baker was erroneous. Baker, a former district              the statements of managerial-level employees who have the
manager at Spiegel, testified on Hill’s behalf to conversations    ability to influence a personnel decision are relevant.” Id.
No. 02-3842               Carter v. University of Toledo        11   12   Carter v. University of Toledo              No. 02-3842

And in Jacklyn v. Schering-Plough Healthcare Products                University places his statements concerning the racial
Sales Corp., 176 F.3d 921, 928 (6th Cir. 1999), this court           composition of the workforce within the ambit of his
considered whether the declarant was “involved in any of the         authority.” Indeed, Murry testified that he ensures that the
critical appraisals of [plaintiff’s] performance that preceded       deans comply with affirmative action requirements when
her leaving work,”—not whether the declarant was a direct            hiring faculty. We agree with the district court’s analysis on
decision-maker—in determining if the declarant’s remarks             this point and conclude that because Carter has shown that
qualified as nonhearsay under Rule 801(d)(2)(D). Being a             Murry’s comments were within the scope of his employment,
direct decision-maker, of course, constitutes strong proof that      Murry’s alleged comments are admissible nonhearsay. Fed.
a statement was made within the scope of employment, but             R. Evid. 801(d)(2)(D).
the “scope of employment” criterion extends beyond direct
decision-makers.                                                        We are thus left with the question of whether the district
                                                                     court erred in discounting Murry’s alleged comments because
  We also note that our prior decisions are consistent with the      they were “isolated.” See, e.g., Ercegovich v. Goodyear Tire
reasoning of the Seventh Circuit in Williams v. Pharmacia,           & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998) (“Isolated
Inc., 137 F.3d 944 (7th Cir. 1998), where the court rejected         and ambiguous comments are too abstract, in addition to
the employer’s argument that                                         being irrelevant and prejudicial, to support a finding of age
                                                                     discrimination.”) (internal quotation marks and citations
  an employee’s statement regarding a particular action of           omitted). The district court gave no explanation for its
  the employer qualifies as a vicarious admission under              conclusion on this point, and we respectfully disagree that the
  Rule 801 only if the employee-declarant was involved in            alleged comments can be so categorized. They were allegedly
  the decisionmaking process leading up to the employer’s            made in direct response to Carter’s inquiries as to why she
  action. . . . The precise reach of Rule 801(d)(2)(D) is            was not rehired. Under these circumstances, we find no
  sometimes difficult to discern, as there has been                  justification to regard them as isolated.
  considerable debate about the justification for classifying
  various admissions as non-hearsay. We are reluctant to               In sum, we conclude that a genuine issue of material fact
  follow [the employer’s] suggestion and read into the rule          exists as to whether Carter can show pretext on the part of the
  a generalized personal involvement requirement,                    University. We recognize that, but for Murry’s alleged
  especially in light of the Advisory Committee’s                    comments, Carter’s claims would not likely survive summary
  admonition that the freedom which admissions have                  judgment. But if the jury were to believe that Murry in fact
  enjoyed . . . from the restrictive influences of . . . the rule    made the remarks attributed to him, then they might find that
  requiring firsthand knowledge . . . calls for generous             the University’s proffered reasons “did not actually motivate
  treatment of this avenue to admissibility.                         the defendant’s challenged conduct.” Seay v. Tennessee
                                                                     Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003). This is a
Id. at 950 (quotation marks and internal citations omitted).         credibility determination that must be resolved by the
                                                                     factfinder, not by the court as a matter of law. We therefore
  The district court distinguished Hill from the instant case        conclude that the district court erred in granting the
by reasoning that “[a]lthough Murry did not have direct              University’s motion for summary judgment.
authority to decide whether Carter’s appointment was
renewed, his oversight of the affirmative action process at the
No. 02-3842            Carter v. University of Toledo   13

                  III. CONCLUSION
  For all of the reasons set forth above, we REVERSE the
district court’s grant of summary judgment in favor of the
University and REMAND for further proceedings consistent
with this opinion.
