429 F.3d 232 (6th Cir. 2005), 03-4219, White v. Columbus Metropolitan Housing Authority

Docket Nº:03-4219.
Citation:429 F.3d 232
Party Name:Dawn WHITE, Plaintiff-Appellant, v. COLUMBUS METROPOLITAN HOUSING AUTHORITY, Defendant-Appellee.
Case Date:November 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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429 F.3d 232 (6th Cir. 2005)

Dawn WHITE, Plaintiff-Appellant,



No. 03-4219.

United States Court of Appeals, Sixth Circuit.

November 14, 2005

Argued: November 5, 2004.

Appeal from the United States District Court for the Southern District of Ohio at Columbus, No. 01-00836—George C. Smith, District Judge.

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Mark S. Granger, GRANGER & BIGGERMAN, Columbus, Ohio, for Appellant.

Robert Garrett Cohen, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for Appellee.


Mark S. Granger, GRANGER & BIGGERMAN, Columbus, Ohio, for Appellant.

Robert Garrett Cohen, John Lowe IV, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for Appellee.

Before: MOORE and GIBBONS, Circuit Judges; MILLS, District Judge.[*]


GIBBONS, Circuit Judge.

Dawn White, an employee of Columbus Metropolitan Housing Authority ("CMHA"), applied and was rejected for the position of CMHA's Manager of Safety and Crime Prevention. White brought suit against CMHA alleging that she was not selected for the position because of her gender, in violation of Title VII, 42 U.S.C. § 2000e et seq. and Ohio Revised Code § 4112.02. She also asserted a claim of intentional infliction of emotional distress under Ohio law. The district court granted CMHA's motion for summary judgment, finding that (1) White failed to present any evidence of direct discrimination; (2) White failed to present evidence sufficient to meet her prima facie burden using circumstantial evidence; (3) CMHA had proffered a legitimate, nondiscriminatory reason for failing to hire White; and (4)White failed to show that CMHA's proffered reason was pretextual.

For the following reasons, we affirm the district court's grant of summary judgment in favor of CMHA.


CMHA is a public housing authority created pursuant to Ohio Revised Code § 3735.27 et seq. for the purpose of "provid[ing] safe and sanitary housing accommodations to families of low income." Ohio Rev. Code § 3735.31. CMHA operates and manages housing communities in Franklin County and employs several hundred

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employees to manage them. Among these employees, CMHA employs its own safety and crime prevention personnel to ensure a safe environment within its communities.

In late August of 1998, the position of Manager of Safety and Crime Prevention for CMHA became available. The Manager of Safety and Crime Prevention coordinates crime prevention and safety programs throughout CMHA, supervises the CMHA security personnel, investigates any allegations of criminal activity on CMHA property, and maintains relations with local law enforcement agencies. CMHA posted a notice of the job opening internally and also advertised the position in the local newspaper. The job description listed the specific qualifications sought for the position, including a bachelor's degree (with a stated preference for Criminal Justice majors), knowledge of investigative, legal, and safety procedures, seven to ten years of experience in the safety/investigative field with prior supervisory experience, and strong oral and written communication skills. The internal job posting set the application deadline as September 8, 1998.

White, an employee of CMHA, submitted an application for the position on September 3, 1998. White graduated from Bowling Green State University in 1978 with a major in sociology and a minor in psychology. White had been employed by CMHA since 1991 as a Safety and Crime Prevention Coordinator. In response to White's application, CMHA sent her a letter on November 4, 1998, indicating that she was not chosen for an interview, as the hiring committee had "decided to continue [the] search for the most qualified candidate for the position." CMHA ultimately hired Robert Walker to fill the position of Manager of Safety and Crime Prevention. Walker was an external candidate with more than seventeen years of experience in crime prevention and safety program coordination as a military police officer in the United States Army, a private investigator, and in various positions, including security supervisor, at Faith Missions, Inc., a homeless shelter.

On August 30, 2001, White filed a complaint against CMHA, claiming that CMHA unlawfully discriminated against her on the basis of her sex in violation of Title VII, 42 U.S.C. § 2000e and Ohio Revised Code §§ 4112.02 and 4112.99. White also asserted a state law claim for intentional infliction of emotional distress. Both CMHA and White filed motions for summary judgment. The District Court for the Southern District of Ohio granted defendant's summary judgment motion and denied plaintiff's summary judgment motion. The district court found that White failed to produce evidence sufficient to establish a case of sex discrimination using direct evidence. The district court also found that White's claim of sex discrimination under the McDonnell-Douglas test used for circumstantial evidence failed because it found that Walker was better qualified than White as a matter of law, thus making it impossible for White to meet the fourth element of the McDonnell-Douglas prima facie case requirement. Further, the district court found that CMHA had produced a legitimate non-discriminatory reason for its decision not to hire White for the position, and found that White was unable to satisfactorily rebut CMHA's proffered reason. The district court, having ruled against White on her federal claims, declined to exercise supplemental jurisdiction over her state law claims. On September 5, 2003, White timely filed a notice of appeal.1

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This court reviews a district court's decision granting summary judgment de novo. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). Under Rule 56(c) of the Federal Rules of Civil P rocedure, summary judgment is appropriate if "'the 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 judgment as a matter of law.'" Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir. 2003) (quoting Fed. R. Civ. P. 56(c)). A dispute over a material fact is "'genuine'" if "a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the district court's decision granting summary judgment, 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).

A plaintiff can establish a claim of sex discrimination under Title VII by producing either direct or circumstantial evidence of discrimination. DiCarlo, 358 F.3d at 414. "[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Jacklyn v. Schering-P lough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Once the plaintiff has produced credible direct evidence, the burden shifts to the employer to show that it would have taken the employment action of which the plaintiff complains even in the absence of discrimination. Id.

When a plaintiff proceeds on her claim using circumstantial evidence, she bears the burden of establishing a prima facie claim of discrimination under the tripartite McDonnell-Douglas framework. See DiCarlo, 358 F.3d at 414 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Once the plaintiff establishes a prima facie claim, the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for the employment decision at issue. Seay v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003). If the defendant is able to meet this burden, the plaintiff must establish that the defendant's stated reason is mere pretext for its true discriminatory motives. Id.


On appeal, White claims that the district court erred in finding that she failed to produce any direct evidence of discrimination as a matter of law. White urges that two comments made by two different members of the interview committee satisfactorily establish a claim of direct discrimination.

First, White cites the statement that Darryl Miles, a member of the interview committee, allegedly made to White in responding to her inquiry as to why she was not selected for the position. In this conversation, Miles allegedly stated that "[the hiring committee] wanted a grass roots guy . . . [a]nd that Mr. Walker interviewed well." White asserts that the

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phrase "grass roots guy" establishes a claim of direct discrimination, because the statement indicates that the hiring committee was looking exclusively for a male candidate to fill the position. The district court determined that, in this context, the word "guy" was gender-neutral.

We find that Miles' alleged statement, standing alone, does not constitute direct evidence of discrimination. Isolated and ambiguous comments are insufficient to support a finding of direct discrimination. Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993). The comment at issue occurred after Walker had already been selected to fill the position. This comment, which is fairly innocuous under any set of circumstances, does not appear to be a statement indicating that the committee was biased toward men or unwilling to consider a female to fill the position, as White claims. Rather, this statement, allegedly made in the course of Miles'...

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