NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 05a0965n.06
                                  Filed: December 14, 2005

                                                   No. 04-4380


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

TONDA SIGALL-DRAKULICH,

       Plaintiff-Appellant,

v.                                                               ON APPEAL FROM THE UNITED
                                                                 STATES DISTRICT COURT FOR THE
CITY OF COLUMBUS,                                                SOUTHERN DISTRICT OF OHIO

       Defendant-Appellee.

                                                        /




BEFORE:         SILER and CLAY, Circuit Judges; MILLS, District Judge.*

       CLAY, Circuit Judge. Plaintiff, Tonda Sigall-Drakulich, appeals the district court’s grant

of summary judgment to Defendant City of Columbus on Plaintiff’s Title VII and Ohio Revised

Code Chapter 4112 claims. Plaintiff alleges that the City of Columbus intentionally discriminated

against Plaintiff on the basis of Plaintiff’s gender when the City failed to promote Plaintiff and

instead promoted a male candidate into the available position. Because Plaintiff has failed to

produce more than a scintilla of evidence that the City’s reason for Plaintiff’s nonpromotion was

pretextual, this Court affirms the district court’s grant of summary judgment in this case.




       *
        Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by designation.
                                           No. 04-3465

                                        BACKGROUND

I.     Procedural History

       Plaintiff filed an action in United States District Court for the Southern District of Ohio on

April 22, 2002 and amended her complaint on September 23, 2002. The amended complaint alleged

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, Ohio Revised Code

Chapter 4112, and state tort and civil conspiracy laws. The amended complaint named as defendants

the City of Columbus and the City of Columbus Civil Service Commission, along with City of

Columbus employees Barbara Gates McGrath, Chester Christie, and Michael Vance.

       Defendants filed their answers to Plaintiff’s complaint on February 4, 2003 and moved for

summary judgment on March 5, 2004 on all claims. Plaintiff opposed the motions for dismissal only

with respect to the Title VII and state law gender discrimination claims against the City of

Columbus, Defendant in the appeal at bar. The district court granted Defendants’ motions for

summary judgment in their entirety on August 11, 2004. Plaintiff timely filed her notice of appeal

on September 8, 2004.

II.    Substantive Facts

       The facts revolve around the City of Columbus’s decision to create and fill a new position

of citywide Occupational Safety and Health Manager (“Safety Manager”). The City first posted

the position in May 1999, and as initially posted, the position had as minimum requirements two

years experience managing an occupational safety and health program and certification either as a

Safety Professional (CSP) or Industrial Hygienist (CIH).

       A City of Columbus selection committee screened applicants for the position in late 1999.



                                                 2
                                             No. 04-3465

The selection panel consisted of Eugene Brundige, Chief Labor Negotiator and Deputy Director of

Human Resources; Al Skinner, Chief Steward for the American Federation of State, County and

Municipal Employees Ohio Council (“AFSCME”); Mike Vance, President of the Columbus

Municipal Association of Government Employees (“CMAGE”); and Laura Raica, Employee

Benefits/Risk Manager. Brundige’s office had primary responsibility to fill the position. Mike

Vance’s union represented City supervisory and managerial personnel. Al Skinner’s union

represented City nonsupervisory civilian employees, the largest contingent of City employees.

Additional City of Columbus personnel participated in interviews of a subset of candidates,

including Thomas Finnegan, an industrial hygienist. Eugene Brundige, as the Department of Human

Resources representative, was charged with overseeing the reorganization of the City’s safety

management program, including the hiring of the City Safety Manager.

        Plaintiff applied for the position in September 1999. At the time, Plaintiff had 31 years of

public sector experience, most of it in the safety and health fields, and the requisite CSP

certification. Since 1993 Plaintiff had held the position of Department Safety Coordinator in the

City’s Department of Parks and Recreation. Plaintiff had designed and developed a number of

occupational health and safety programs during her career, some of which received state-wide

recognition. The employee ultimately offered the job by the City, Rick Brewer, also submitted his

application for the position at this time, but did not make it past the initial review of resumés because

he lacked one of the required certifications.

        After an external candidate was offered and then declined the position, Plaintiff was one of

three candidates given final interviews in with Carolyn Nellon, the City Director of Human



                                                   3
                                              No. 04-3465

Resources. The Director of Human Resources is the appointing authority for the Department,

holding the sole authority to hire and promote employees within the Department of Human

Resources, the department into which the successful candidate would ultimately be hired. No offers

were extended at that time. A September 14, 2000 memorandum from the selection committee to

the Director of Human Resources, detailing the selection process, notes that the committee declined

to recommend any of the finalists for the position at the time — 1) Plaintiff, 2) Keith Nichols

(another City employee), and 3) an external contender — due to deficiencies in the applicants’

“diplomacy and scope of experience, leadership skills exhibited in the present position, and relative

inexperience, respectively.” (J.A. at 77.)1

       In January 2000 the then-Director of Human Resources, Carolyn Nellon, left her position and

was replaced by Chester Christie in February 2000. Christie reports that Brundige informed him that

the reorganization program was aimed at the civilian safety programs, that the effort was a

cooperative one between the City and AFSCME, and that union support of the selected manager

would be essential to the reorganization’s success. Christie also reports that Brundige shared a

memorandum received from Al Skinner, the AFSCME Chief Steward, that opined that neither

Plaintiff nor the other City employee-applicant for the position, Keith Nichols, would be suitable




       1
         Plaintiff contends that the authenticity of this memorandum is suspect because 1) the
letterhead refers to Carolyn Nellon as Director of Human Resources when, at the time of the
memorandum, Chester Christie was actually Director; 2) the memorandum refers to Eugene
Brundige as a member of the selection committee when Brundige had, in fact, retired by that time;
and 3) the memorandum refers to Plaintiff’s lack of diplomacy when a committee member, Mike
Vance, did not recall discussing such topic during committee deliberations.

                                                  4
                                            No. 04-3465

as Safety Manager, and asked the City to continue the search process.2

       In early 2000, Christie learned that programming for occupational health and industrial

hygiene was already being performed by the City Department of Health. In a subsequent

conversation with Brundige about revising the position description to reflect the changed scope

(eliminating occupational health and industrial hygiene from the position responsibilities), Christie

also recalls that Brundige advised Christie that the position’s current minimum qualifications would

impede the City’s ability to “attract individuals who could fulfill the needs of the position and that

unless we expanded the pool of applicants we would have difficulty filling the position.” (J.A. at

102.) Accordingly, Christie directed Brundige to work with the City Civil Service Commission to

revise the position scope and minimum qualifications.

       In June 2000 the Civil Service Commission recommended a change to the position’s scope

and minimum qualifications. The changes initially did away with the certification requirements in

their entirety and replaced them with requirements for a bachelor’s degree and four years experience.

The memorandum from the Civil Service Commission staff to its Commissioners recommending

the qualifications change stated that:

       [t]his request is a result of a nationally focused recruitment that has been ongoing for
       the past year that has been unable to yield any qualified candidates to fill this
       position. Although [the Department of Human Resource’s] recruitment revealed
       several very interested and credible candidates, none have had the certification that
       is required at the time of application.




       2
        Plaintiff also challenges the authenticity of this memorandum because 1) it appears to be
the second page of a facsimile transmission, and 2) it was dated between the tenure of Carolyn
Nellon and Chester Christie, a period of time during which the “hiring process would have been put
on hold.” (J.A. at 16-17.)

                                                  5
                                            No. 04-3465

(J.A. at 68.) Barbara Gates McGrath, the Executive Director of the Civil Service Commission,

stated that when she learned that several candidates indeed had presented the requisite certification,

she “looked into it.     Based on my review, I believe this statement to be the result of a

miscommunication between the Department of Human Resources and my staff.” (J.A. at 92.) A

contemporaneous letter from Christie to the President Pro-tem of the Columbus City Council noted

that “[t]he intent in amending the minimum qualifications is to broaden the scope of viable

prospective candidates we are able to attract . . . .” (J.A. at 152.)

       The changed position description and minimum qualifications were scheduled for discussion

at the July 2000 public meeting of the Civil Service Commission. Plaintiff intended to speak against

the changes at the meeting. The discussion of the position, however, was pulled from the meeting’s

agenda before Plaintiff had an opportunity to speak.

       One week after the July 2000 Civil Service Commission meeting, the commission again

modified the position requirements to permit either a bachelor’s degree and four years experience

or the requisite CSP or CIH certifications and two years experience. The commission explained that

it was not the intention of the revision to exclude those previously meeting the position’s minimum

qualifications, and that the commission had misunderstood the CSP and CIH requirements

themselves to include a bachelor’s degree. The commission explained that it had since learned that

both the CSP and CIH had clauses which permitted some certification holders to qualify without the

bachelor’s degree.

       The revised employment opening was posted from August 17, 2000 through August 23,

2000. Five days is the default posting period for City of Columbus positions. At that time,



                                                   6
                                                No. 04-3465

additional interviews were done with candidates, including an interview with Rick Brewer. Plaintiff

and Keith Nichols also submitted applications for the revised position, but were not interviewed

again, although Brundige instructed the committee to consider both Plaintiff and Nichols a part of

the current candidate pool. The selection committee then recommended to Christie that Rick Brewer

be selected for the position. Christie then interviewed Brewer, Nichols, and Plaintiff and thereafter

accepted the recommendation of the selection committee, hiring Brewer in March 2001. In making

his final selection, Christie stated that he:

        considered the committee’s recommendation, AFSCME’s opinion, how the
        applicants performed during the interviews with me and the applicant’s education
        and background . . . . I relied heavily on the committee’s recommendation because
        its purpose had been to interview the applicants and make a recommendation. Based
        on the committee’s memorandum both labor and management representatives
        endorsed Rick Brewer. I strongly believed that the Safety Manager had to be able
        to foster a cooperative working relationship between the City and the unions so the
        unions’ support of the candidate was important to me . . . . I also believe Mr. Brewer
        far exceeded the minimum qualifications. In addition to possessing a bachelor’s
        degree he also holds a master of science degree in Safety Management. By contrast,
        [Plaintiff] has a high school diploma.

(J.A. at 104.) At the time of his selection, Brewer had six years experience in occupational health

and safety, certification as a Safety and Health Manager from the Institute for Safety and Health

Management, and the aforementioned Master of Science in Safety Management.

                                            DISCUSSION

I.      PLAINTIFF HAS FAILED TO MAKE A SHOWING THAT DEFENDANT’S
        HIRING RATIONALE WAS PRETEXTUAL

                                          Standard of Review

        This Court reviews a district court’s grant of summary judgment de novo. See DePiero v.

City of Macedonia, 

, 776 (6th Cir. 1999). Summary judgment is appropriate where the

                                                    7
                                            No. 04-3465

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute as to a material

fact is genuine when the “evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” See Anderson v. Liberty Lobby, Inc., 

, 247 (1986). As the party

moving for summary judgment, Defendant bears the burden of showing the absence of a genuine

issue of material fact as to at least one essential element of Plaintiff’s claim. See Celotex Corp. v.

Catrett, 

, 324 (1986). In considering Defendant’s motion for summary judgment, this

Court accepts Plaintiff’s evidence as true and draws all reasonable inferences in her favor. 

the nonmoving party, however, Plaintiff fails to make a sufficient showing on an essential element

of the case with respect to which she has the burden, Defendant is entitled to summary judgment as

a matter of law. Celotex 

.

                                              Analysis

       This Court finds that the district court did not err in finding that Plaintiff has failed to make

a showing that Defendant’s rationale was pretextual.

A.     Title VII and Ohio Rev. Code Chapter 4112

       Ohio courts have held that the evidentiary standards and burdens of proof applicable to a

claimed violation of Title VII likewise apply when determining whether a violation of Ohio Revised

Code Chapter 4112 has occurred.3 See, e.g., Mauzy v. Kelly Servs., Inc., 

, 1276


       3
        The Ohio statute reads:
       It shall be an unlawful discriminatory practice:
       (A) For any employer, because of the race, color, religion, sex, national origin,

                                                  8
                                            No. 04-3465

(Ohio 1996). Consequently, this Court looks to federal case law governing Title VII actions when

evaluating Chapter 4112 claims. See Williams v. Ford Motor Co., 

, 538 (6th Cir.

1999). Thus, a failure by Plaintiff to present enough evidence to create a genuine issue of material

fact as to any element of her federal claim would be simultaneously fatal to her state law claim. This

Court may therefore evaluate both claims concurrently under the Title VII jurisprudence.

B.     Legal Standard for Title VII Disparate Treatment Claims

       Plaintiff alleges intentional discrimination on the part of Defendant in its hiring for the City

Safety Manager. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating

“because of . . . race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (2000). In

a Title VII case, a plaintiff bears the ultimate burden of persuading the factfinder that the defendant

intentionally discriminated against the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 

, 143 (2000). Unlawful discrimination need not be the only reason for an adverse

employment action to violate Title VII, but rather need only be an essential component of an

employer’s mixed motive. Price Waterhouse v. Hopkins, 

, 240-41 (1989). A plaintiff

may carry the burden by 1) introducing direct evidence which shows that in treating a plaintiff

adversely the defendant was motivated by discriminatory intent, or 2) by introducing circumstantial

evidence that supports an inference of discrimination. Logan v. Denny’s, Inc., 

, 566-67

(6th Cir. 2001).



      handicap, age, or ancestry of any person, to discharge without just cause, to refuse
      to hire, or otherwise to discriminate against that person with respect to hire, tenure,
      terms, conditions, or privileges of employment, or any matter directly or indirectly
      related to employment.
Ohio Rev. Code Ann. § 4112.02(A) (2004).

                                                  9
                                            No. 04-3465

        Where, as here, Plaintiff’s evidence is circumstantial, a disparate treatment claim proceeds

through a three-step framework. In a failure to promote situation, Plaintiff bears the initial burden

of making a prima facie case that 1) she is a member of a protected class, 2) she applied for and was

qualified for the position, 3) she was considered for and denied the promotion, and 4) another

employee of similar qualifications who was not a member of the protected class received the

promotion. McDonnell Douglas Corp. v. Green, 

, 802 (1973); Roh v. Lakeshore

Estates, Inc., 

, 497 (6th Cir. 2001). The prima facie test is meant to be a relatively light

burden. Tex. Dep’t of Cmty. Affairs v. Burdine, 

, 253 (1981) (stating that in a Title VII

case “the burden of establishing a prima facie case of disparate treatment is not onerous”).

        If Plaintiff carries that burden, then, in the second step of the framework, Defendant must

produce a legitimate, nondiscriminatory reason for failing to promote Plaintiff. 

. Defendant’s burden is one of production, not persuasion; it involves no credibility

assessment. St. Mary’s Honor Ctr. v. Hicks, 

, 509 (1993).

        If Defendant carries its burden, then, in the final stage in the process, Plaintiff must prove

by a preponderance of the evidence that the defendant’s proffered reason is a mere pretext for

intentional discrimination. 

-43. To survive summary judgment, Plaintiff

must demonstrate both that Defendant’s rationale is incredible and that the true motivation behind

her nonpromotion included intentional discrimination because of her gender. St. Mary’s Honor 

(“[A] reason cannot be proved to be a pretext for discrimination unless it is shown

both that the reason was false, and that discrimination was the real reason.”). From an evidentiary

standpoint, in some (but not all) cases, sufficient evidence of discriminatory intent may come solely



                                                  10
                                             No. 04-3465

from the prima facie case. 

. The factfinder may consider the evidence

and inferences from the plaintiff’s prima facie case, along with other evidence. 

        Methods of disproving the defendant’s reason include demonstrating that the reason 1) had

no basis in fact, 2) was not the actual reason, or 3) was insufficient to explain the defendant's action.

. This Circuit has adopted the “honest belief” rule, and Plaintiff cannot

demonstrate pretext merely by showing that Defendant’s hiring rationale was “mistaken, foolish,

trivial, or baseless,” Smith v. Chrysler Corp., 

, 806 (6th Cir. 1998), so long as

Defendant honestly believed in the rationale and based this belief on particularized facts before it

at the time, 

C.      The District Court’s Decision

        The district court held that Plaintiff had established her prima facie case because she was

able to show that she 1) was a member of a protected class (female), 2) was qualified for and applied

for the Safety Manager position, 3) was considered for and denied the position, and 4) a white male

with arguably similar qualifications was hired instead. The district court also held, however, that

the City had set forth legitimate, nondiscriminatory reasons for its hiring actions and produced the

associated, requisite evidence. The bulk of the lower court’s decision focuses on whether Plaintiff

made a sufficient showing that there exists a genuine issue of material fact as to whether the City’s

reasons were merely a pretext for discrimination. The district court concluded that Plaintiff failed

to carry her burden in making a sufficient showing that Defendant’s reasons were mere pretext for

intentional discrimination against Plaintiff because of her gender. Plaintiff appeals this finding on

pretext.



                                                   11
                                            No. 04-3465

D.     Plaintiff’s Evidence of Pretext

       Plaintiff may carry her burden of pretext at the summary judgment stage if she can produce

enough evidence to create a genuine issue of material fact about whether the City’s reasons 1) have

no basis in fact, 2) are not the actual reasons, or 3) are insufficient to explain the hiring of Brewer

in lieu of Plaintiff. 

. This evidence must be such that a “jury may reasonably

reject the employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 

, 1083

(6th Cir. 1994).

       To carry her burden, Plaintiff challenges each of Director Christie’s proffered rationales for

his hiring decision — the recommendation of the selection committee, union opposition, the

applicants’ performance during interviews, and the applicants’ education and background. Plaintiff

both challenges the documentation relied on by Christie for his hiring decision, and, by extension,

the credibility of Christie’s reliance on that documentation in reaching his hiring decision. In

addition, Plaintiff alleges that a jury could reasonably infer that Christie’s hiring rationale is

pretextual in light of the entirety of the circumstances surrounding Christie’s direction to amend the

position qualification.

       1.      The Recommendation of the Selection Committee

       Plaintiff argues that the authenticity of the selection committee’s recommendation

memorandum of September 14, 2000 is suspect because 1) the letterhead refers to Carolyn Nellon

as Director of Human Resources when, at the time of the memorandum, Chester Christie was

actually Director; 2) the memorandum refers to Eugene Brundige as a member of the selection

committee when Brundige had, in fact, retired by that time; and 3) the memorandum refers to



                                                  12
                                            No. 04-3465

Plaintiff’s lack of diplomacy when a committee member, Mike Vance, did not recall discussing such

during committee deliberations. The City argues that it was common practice to use up old

letterhead and that the memorandum clearly refers to Christie as the Director of Human Resources.

       Two of the three alleged problems with the memorandum do not, in fact, provide any

evidence going to the authenticity of the memorandum. The reference to Brundige was in the

background section of the memorandum in the context of a discussion of the first round of

interviews in 1999 and does not allude to Brundige’s current employment position with the City.

Brundige had, in fact, retired just at the end of August 2000, near the conclusion of the selection

committee’s process. Second, the fact that Vance could not recall in his deposition testimony, taken

almost four years after the fact, whether the committee discussed Plaintiff’s lack of diplomacy at the

time is not evidence that the memorandum lacks authenticity.

       Plaintiff correctly points out that the City fails to provide any evidence that City departments

regularly use old letterhead. In this respect, Plaintiff does point to an incongruity in Defendant’s

evidence that this Court should consider. Standing alone, however, this Court believes that this

piece of evidence is insufficient to create a genuine issue of material fact regarding the

memorandum’s authenticity.

       2.      Union Opposition

       Christie states that he relied, in part, on Skinner’s representation that AFSCME did not

support Plaintiff’s candidacy for the position. Plaintiff contests Christie’s reliance on the Skinner

representation because Plaintiff questions the authenticity of the memorandum in which this

representation was communicated because 1) it appears to be the second page of a facsimile



                                                 13
                                            No. 04-3465

transmission; 2) it was dated between the tenure of Carolyn Nellon and Chester Christie, a period

of time during which the “hiring process would have been put on hold;” and 3) Skinner never

“voiced his disapproval of [Plaintiff] during the interview panel’s discussion of the merits of the

various applicants.” (Pl. Br. at 16-17.)

       In this Court’s opinion Plaintiff’s “evidence” going to the authenticity of the memorandum

is not evidence on this point at all. The date of the memorandum raises no issues as to its

authenticity. While the date is between the tenure of Nellon and Christie, the memorandum was

addressed to Brundige, who was still heading up the Department’s efforts to fill the position, and

who was overseeing the Department as Deputy Director during this interim period. Plaintiff does

not dispute Brundige’s role here. Furthermore, the fact that Vance cannot recall Skinner voicing any

objections to Plaintiff in the selection committee’s meeting does not go to the memorandum’s

authenticity. Finally, Plaintiff produces no evidence to call into question Skinner’s signature on the

memorandum, only that the memorandum appears to be the second page of a facsimile. This is not

evidence going to the memorandum’s authenticity.

       Plaintiff also challenges Christie’s reliance on the Skinner memorandum. Plaintiff alleges

that AFSCME disapproval is an insufficient reason for hiring Brewer in lieu of Plaintiff because at

the time of the hiring process Plaintiff was an elected board member of CMAGE and had been

recommended for the position by the president of the City of Columbus firefighters’ union. This

contention by Plaintiff, however, does not raise a genuine issue of material fact. The position was

aimed at civilian workforce safety programs, and AFSCME represented the largest number of City

civilian employees. The firefighter’s union was not on the selection committee, as AFSCME was,



                                                 14
                                             No. 04-3465

and the CMAGE representative, Mike Vance, concurred in the recommendation for Brewer.

Moreover, Plaintiff does not produce evidence that Christie is dissembling about his reliance on the

memorandum.

        3.      Interview Performance

        Plaintiff also alleges that it is implausible that Christie’s interview with Plaintiff could form

a rational basis for rejecting Plaintiff’s candidacy. Plaintiff contends that Christie failed to inquire

into Plaintiff’s knowledge, skills, or abilities, or request documentation as to Plaintiff’s

qualifications for the position. Plaintiff argues that Christie did not, therefore, perform an

“interview” with Plaintiff and that a reasonable jury could infer from the “pro-forma” nature of the

interview that it was insufficient to inform his decision-making process.

        Plaintiff is asking this Court to venture into the territory of telling employers the form and

extent of hiring interviews. This Court avers that it would be inappropriate to interfere with a

manager’s prerogative to conduct interviews in the form and fashion with which he or she sees fit,

so long as the form and fashion do not implicate impermissible discrimination. See Smith v. Leggett

Wire Co., 

, 763 (6th Cir. 2000).        Plaintiff does not allege that Christie made any

discriminatory remarks or allusions during the interview. Plaintiff has failed to produce evidence

that Defendant’s reliance on Plaintiff’s interview performance was pretextual.

        4.      Education and Background

        Plaintiff alleges that a jury could reasonably infer that Defendant’s reliance on Brewer’s

educational attainment was pretextual in light of Plaintiff’s extensive experience. Plaintiff alleges

that no reasonable hiring official could find Brewer more qualified than Plaintiff. Plaintiff



                                                   15
                                            No. 04-3465

misconstrues the evidence before this Court. Christie does not assert that Brewer’s experience is

more extensive than Plaintiff.     Rather, Christie notes that Brewer far exceeded the minimum

requirements for the position, given his experience and educational attainments, and further noted,

by comparison, Plaintiff’s high school diploma. The City never represented that it would hire the

most experienced candidate without consideration of other factors.             Rather, education and

experience were only two of a number of factors considered by Christie. Plaintiff has not introduced

any evidence, beyond Plaintiff’s own opinion, that Brewer was not qualified for the position. This

Court has consistently held that it will not second-guess the business acuity underlying

management’s personnel decisions. See 

.

5.      The Entirety of the Circumstances

        Plaintiff argues that the sum of the circumstances give rise to an inference that Defendant’s

hiring rationale is pretextual. Plaintiff relies heavily on the fact that despite being qualified at the

time of her interview, after the ascendancy of Christie, a male, into the hiring position, the minimum

qualifications underwent a modification which permitted Brewer, also a male, to qualify for the

position when he was previously not deemed qualified. Plaintiff argues that the sequence of events

raises a genuine issue of material fact about whether this modification was intended to discriminate

against Plaintiff because of her gender. Plaintiff implies that had Carolyn Nellon remained Director

of Human Resources, Plaintiff would have been hired and no modification to the qualifications

would have been made.

        Plaintiff makes a myriad of arguments about the timeline of the qualifications modification,

the strongest of which lies with the false assertion in the Civil Service Commission staff



                                                  16
                                           No. 04-3465

recommendation memorandum that the national recruitment effort had “failed to yield any qualified

candidates” for the position. While the Civil Service Commission Executive Director explains that

this statement was a result of a miscommunication between departments, the inconsistency is real

evidence going to the truth behind the City’s rationale for the qualifications modification. None of

Plaintiff’s other issues with the timeline, however, support the contention that the modification was

part of a plan to discriminate. The fact that the Health Department was concerned about the removal

of the certification requirement does not undermine the Department’s asserted rationale for the

modification (to attract a broader array of viable candidates). Neither does Plaintiff present any

evidence to counter Defendant’s rationale for the removal of the position discussion at the July 2000

Civil Service Commission meeting (that the matter had been settled). Finally, Plaintiff points to the

original modification to the position which would have removed Plaintiff’s eligibility for the

position. Plaintiff presents no evidence, however, that Defendant’s explanation for this modification

— its misunderstanding that the CSP and CIH certifications required a bachelor’s ab initio — was

false. In any event, Defendant revised its modification to the position to include applicants in

Plaintiff’s position before reposting the opening.

6.     Summary of Plaintiff’s Evidence of Pretext

       Based on the foregoing analysis, this Court understands Plaintiff to have produced two pieces

of evidence in support of pretext, 1) the old letterhead going to the authenticity of the selection

committee recommendation memorandum, and 2) the false assertion in the Civil Service

Commission memorandum that no qualified candidates had been found for the position. Neither

piece of evidence is dispositive and both are countered by Defendant in the form of deposition



                                                 17
                                           No. 04-3465

testimony and affidavits.

        The old letterhead is insufficient to create a genuine issue of material fact as to the

memorandum’s authenticity. Christie gave a statement under oath that the memorandum is a true

and correct copy of what he received on that date. The memorandum is initialed and is consistent

with deposition testimony of Vance and the affidavit of Christie. The memorandum was kept in the

ordinary course of business. The use of 9-month old letterhead is insufficient to override these

indicia of reliability.

        The incorrect assertion in the Civil Service Commission memorandum is a closer issue. The

inconsistency between the statement therein and the undisputed concession that Plaintiff was

qualified for the Safety Manager position is some evidence going to Plaintiff’s claim, despite

Defendant’s explanation for the statement.        In this Court’s opinion, however, this single

inconsistency amounts only to a scintilla of evidence when viewed in the context of the evidentiary

record as a whole. This evidence is not sufficient such that a “jury may reasonably reject the

employer’s explanation.” 

.

        Moreover, Plaintiff has failed to make a showing that Defendant’s true motivation was

discriminatory. None of Plaintiff’s evidence points to gender discrimination. Plaintiff has alleged

no statements or references by Defendant management or employees which go to gender

discrimination or even animus. Plaintiff relies exclusively on the fact that a white male ultimately

received the promotion. Yet another white male, Keith Nichols, was affected in the same way as

Plaintiff throughout the hiring process. In fact, Keith Nichols was the successful candidate’s direct

supervisor prior to the candidate’s promotion. Plaintiff points to the entirety of the circumstances



                                                 18
                                            No. 04-3465

surrounding the hiring process, but this Court has held that temporal proximity, standing alone, is

“insufficient in and of itself to establish that the employer’s nondiscriminatory reason” was, in fact,

pretextual. Skrjanc v. Great Lakes Power Serv. Co., 272 F3d 309, 317 (6th Cir. 2001).

                                          CONCLUSION

       For the foregoing reasons, this Court AFFIRMS the district court’s grant of summary

judgment for Defendant.




                                                  19