581 F.3d 383 (6th Cir. 2009), 08-1883, Risch v. Royal Oak Police Dept.

Docket Nº:08-1883.
Citation:581 F.3d 383
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:Karyn RISCH, Plaintiff-Appellant, v. ROYAL OAK POLICE DEPARTMENT, Defendant-Appellee.
Attorney:Richard I. Lippitt, Law Office of Richard I. Lippitt, P.C., Milford, Michigan, for Appellant. Karen M. Daley, Cummings, McClorey, Davis & ACHO, P.L.C., Livonia, Michigan, for Appellee. Richard I. Lippitt, Law Office of Richard I. Lippitt, P.C., Milford, Michigan, for Appellant. Karen M. Daley, Cu...
Judge Panel:Before: SILER, MOORE, and GRIFFIN, Circuit Judges. MOORE, J., delivered the opinion of the court, in which SILER, J., joined. GRIFFIN, J. (pp. 394-399), delivered a separate dissenting opinion. GRIFFIN, Circuit Judge, dissenting.
Case Date:September 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 383

581 F.3d 383 (6th Cir. 2009)

Karyn RISCH, Plaintiff-Appellant,

v.

ROYAL OAK POLICE DEPARTMENT, Defendant-Appellee.

No. 08-1883.

United States Court of Appeals, Sixth Circuit.

September 23, 2009

Argued: Aug. 4, 2009.

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[Copyrighted Material Omitted]

Page 385

ARGUED:

Richard I. Lippitt, Law Office of Richard I. Lippitt, P.C., Milford, Michigan, for Appellant.

Karen M. Daley, Cummings, McClorey, Davis & ACHO, P.L.C., Livonia, Michigan, for Appellee.

ON BRIEF:

Richard I. Lippitt, Law Office of Richard I. Lippitt, P.C., Milford, Michigan, for Appellant.

Karen M. Daley, Cummings, McClorey, Davis & Acho, P.L.C., Livonia, Michigan, for Appellee.

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which SILER, J., joined. GRIFFIN, J. (pp. 394-399), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Karyn Risch (" Risch" ) appeals the district court's grant of summary judgment in favor of Defendant-Appellee Royal Oak Police Department (" the Department" ), on Risch's gender-discrimination claim brought pursuant to Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § § 2000e et seq. In 2005, Risch, a uniformed patrol officer and seventeen-year veteran of the Department, was passed over for a promotion to the position of detective in favor of two male applicants who had lower scores than Risch under the promotion system used by the Department. The district court found that Risch had failed to raise a genuine issue of fact concerning whether the Department's proffered reason for not promoting Risch was a pretext for gender discrimination. Because Risch had arguably superior qualifications than the two successful applicants and has produced other probative evidence of gender discrimination,

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we REVERSE the district court's grant of summary judgment to the Department on Risch's gender-discrimination claim and REMAND for further proceedings.

I. BACKGROUND

Risch is a uniformed patrol officer who has been employed by the Department for seventeen years. On several occasions between 2001 and 2005, Risch applied for a promotion within the Department and was passed over by Police Chief Theodore Quisenberry (" Quisenberry" ) in favor of male candidates who had received lower scores under the civil-service-promotion system used by the Department.1 Under that system, a candidate for promotion in the Department must first score 70% or higher on a written examination. Candidates who meet that minimum requirement are then given an overall numerical score based upon a weighted scale: 70% for written examinations, 20% for performance reviews conducted by the Department, and 10% for seniority. Once each candidate is given a numerical score, the City of Royal Oaks Civil Service Board creates a ranked list of candidates that is presented to the Police Chief. Pursuant to the city's civil-service ordinance, the Police Chief must fill each vacancy by choosing one of the top three scorers on the promotion list. When there is more than one vacancy, the number of eligible candidates who may be chosen by the Police Chief increases by one for each additional vacancy. Thus, when there are two vacancies, the Police Chief may choose from among the top four scorers on the promotion list to fill those vacancies. Promotion lists generally remain valid for one year but may be extended for an additional six months upon a request by the Police Chief.

In June 2002, Risch was ranked second on a promotion list for detective, but Quisenberry chose a male candidate who was ranked third, Donald Swiatkowski. In January 2003, Risch was again ranked second on a promotion list-this time for the position of sergeant. This list was effective from January 30, 2003, through January 30, 2004, and included four other candidates, all of whom were male. Quisenberry filled three vacancies during this period, again passing over Risch in favor of male candidates. In August 2003, Quisenberry promoted Gordon Young, the first-ranked candidate, and in January 2004, Quisenberry promoted Thomas Goad and David Clemens, the third-and fourth-ranked candidates respectively, whose lower test scores and fewer years of service resulted in lower total scores than Risch.

Finally, Risch was ranked third on a promotion list for the position of detective that was effective from March 4, 2004, through September 4, 2005. 2 Quisenberry filled three vacancies during this period, but once again passed over Risch in favor of male candidates. In June 2005, Quisenberry promoted Perry Edgell and Michael Moore (" Moore" ), the second- and fourth-ranked candidates respectively, and in August

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2005 Quisenberry promoted Keith Spencer (" Spencer" ), the fifth-ranked candidate. Although Risch's exam and performance-evaluation scores were slightly lower than those of Moore and Spencer, Risch's significantly greater seniority gave her a total score of 81.72, putting her ahead of both Moore (81.47) and Spencer (81.24). Quisenberry explained in an affidavit that he decided which candidates to promote to the position of detective in 2005 based upon " service and performance as demonstrated by their performance evaluations, test scores, initiative and leadership qualities." Record on Appeal (" ROA" ) at 133 (Quisenberry Aff. at 2). According to Quisenberry, " Risch was not selected for promotion because the other officers in the eligibility list had better test scores, better performance evaluations and demonstrated more initiative and leadership qualities." Id. Notably absent from the list of factors that Quisenberry says he considered is seniority-the criterion that lifted the overall score of seventeen-year-veteran Risch over Moore and Spencer.

The 2004-2005 promotion list reflected that Risch had received slightly lower scores than Moore and Spencer in recent semi-annual performance evaluations. In her April 2003 review, for instance, Risch received a total performance rating of 79.5 and an unsatisfactory score for cooperation with associates. Risch's supervising officer commented that Risch was " not very motivated" and was " too vocal with her negative opinions of the department," but added that Risch " kn[ew] her job" and had " improved her report writing efforts." ROA at 66 (Risch Rating Form 4/24/03 at 1). Still, Risch's April 2003 performance rating of 79.5 was only slightly lower than Moore's April 2003 rating of 82.0, and Risch outscored Moore in several categories, including judgment, quality of work, and public contacts. Similarly, although Risch's April 2003 overall performance rating was somewhat lower than Spencer's April 2003 rating, Risch outperformed Spencer in quality of work, knowledge of work, and public contacts. Risch received similar ratings on subsequent performance reviews in October 2003 3 (total rating 80.7) and October 2004 4 (76.9) and received only one unsatisfactory score in each of these reviews.

Risch received significantly higher performance ratings between 1996 and 2000 than she did between 2001 and 2005 when she was attempting to gain a promotion. Between 1996 and 2000, Risch consistently scored in the high 80s and low 90s, with a low of 86.6 and a high of 91.9. By contrast, between 2001 and 2005, Risch generally scored in the low 80s, with a low of 76.9 and a high of 85.2.

The Department consists of a rank-and-file staff of around sixty officers, around thirteen or fourteen of whom are female, and a command staff of around fifteen or sixteen individuals with managerial roles,

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including the Police Chief, the Deputy Chief, and several lieutenants, sergeants, and detectives. Between 2001 and 2005, only one female officer, Lynn Barron (" Barron" ), served on the command staff. Barron was promoted to the command staff position of sergeant in 2002, but for reasons that are unclear in the record took early retirement and left the Department by 2005. Apart from Barron, Risch was evidently the only female officer who appeared on promotion lists during the first five years of Quisenberry's tenure.

Risch testified in her deposition that under Quisenberry's tenure the Department was permeated by an atmosphere of hostility toward female officers and that female officers seeking promotions were held to a higher standard than male officers. Risch recalled hearing numerous comments such as " the chief [will] never have a female in the command staff," and " [n]one of you [female officers] will ever go anywhere." ROA at 96 (Risch Dep. Tr. at 75). Risch also testified that she had heard a " majority" of male officers say that women do not belong in the police force. Id. Risch observed that negative comments about female officers were so common in the Department that " you just ... get used to it ... you don't think about jotting them down, it's just something that happens all the time." Id. According to Risch, the Department was permeated by " an overall little boys club" in which female officers were " held higher to a different standard than ... male[s]." ROA at 99 (Risch Dep. Tr. at 175).

Risch also identified particular incidents in which command officers made degrading comments about women and gave preference to male officers when assigning work. Risch testified that a male sergeant named Clemens, who was later promoted to lieutenant, called it " bitching" when Risch raised a concern about " neatness and how things were filed" and suggested a possible improvement. ROA at 96 (Risch Dep. Tr. at 73-74). Risch also testified that Lieutenant Donald Foster (" Foster" ) discriminated against female officers when he assigned work. According to Risch, when assigning extra duties, Foster "...

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