Carter v. University of Toledo

• Decision Date: 12 November 2003
• Docket Number: No. 02-3842.,02-3842.
• Citation: 349 F.3d 269
• Parties: Carolyn CARTER, Plaintiff-Appellant, v. UNIVERSITY OF TOLEDO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

349 F.3d 269

Carolyn CARTER, Plaintiff-Appellant, v. UNIVERSITY OF TOLEDO, Defendant-Appellee.

No. 02-3842.

United States Court of Appeals, Sixth Circuit.

Argued: October 22, 2003.

Decided and Filed: November 12, 2003.

John D. Franklin (argued and briefed), Law Offices of John D. Franklin & Associates, Toledo, OH, for Appellant.

Cheryl F. Wolff (argued and briefed), Theodore M. Rowen (briefed), Spengler Nathanson, Toledo, OH, for Appellee.

Before KEITH, DAUGHTREY, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

Dr. Carolyn Carter, who is African-American, brought suit against her former employer, the University of Toledo, alleging that the University failed to renew her contract as a visiting professor 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 discrimination and had also failed to establish that the legitimate, nondiscriminatory reasons given by the University for not renewing her contract were a pretext to disguise racial discrimination. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

The University of Toledo hired Carter in January of 1996 as an Assistant Professor of Curriculum and Instruction in the University's College of Education. Carter's assistant 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 Committee unanimously recommended that her faculty appointment be renewed. Professor James R. Gress, the chairman of Carter's department, echoed the Committee's sentiments in his support for Carter's reappointment.

As a result of these favorable recommendations, the University renewed Carter's appointment for two years and awarded her a merit pay increase. Carter, however, voluntarily resigned from her tenure-track faculty position in May of 1997 to take an administrative position in the Jackson, Michigan school district. She left the University in July of 1997 after teaching the first of the summer school sessions.

Due to another change in career plans, Carter returned to the University of Toledo as a visiting faculty member for the 1999-2000 academic year. Dr. Charlene Czerniak, who was then Interim Dean of the College of Education, extended Carter an offer for the visiting professorship in the Educational Administration and Supervision (EDAS) program in the College of Education's Department of Foundations and Leadership. Carter accepted the appointment in the EDAS program, as did three other visiting professors — Louis Barsi, Brenda Lanclos, and Richard St. John — who were all Caucasian.

The University did not renew Carter's visiting-professor appointment after the 1999-2000 academic year. In July of 2000, Carter sent an e-mail message to Czerniak inquiring about the renewal of her contract with the University for the following year. Czerniak responded that the University had met its hiring needs for the year and would not be extending Carter's appointment.

Carter was not the only visiting professor whose contract was not renewed for the 2000-2001 academic year. Neither St. John, who like Carter was teaching in the EDAS program, nor Mary Anne Stibbe, a visiting professor in the College of Education's Department of Curriculum and Psychological Studies, were reappointed for 2000-2001. Both St. John and Stibbe are Caucasian.

Barsi and Lanclos, the other two EDAS visiting professors, were rehired for the following academic year, but not in the EDAS program. Three new visiting professors were hired in the EDAS program for the 2000-2001 academic year. One was Bunk Adams, who is African-American, and the other two were Sandra McKinley and Robin Rayfield, both Caucasian.

When she had not heard anything about the renewal of her visiting professorship, Carter contacted Dr. Earl Murry, the University's Vice Provost. Murry's duties as Vice Provost included acting as chief negotiator for the faculty's collective bargaining agreements, coordinating faculty recruiting, hiring, training, and orientation, advising the Provost on tenure and promotions, reviewing salary matters, and ensuring compliance with affirmative action requirements. According to Carter, Murry said that he would investigate the matter and get back to her. When Murry did not promptly get in touch with Carter, she called him back to ask whether he had any information about the renewal of her contract.

Murry told Carter that he had not yet discussed the issue with Czerniak, and then, according to Carter, volunteered that "[Czerniak] is trying to whitewash the college of education and I am not going to let her do this." Carter also asserts that Murry "told me that [Czerniak] was trying to get rid of the black professors and that he was in a struggle with her involving the appointment of an additional black professor." When she contacted him a third time to find out whether her appointment would be renewed, Carter claims that Murry said "I don't know what's going on, they're a bunch of racists over there." Murry denies making any of these statements.

Carter sued the University of Toledo in June of 2001. She alleged that the University discriminated against her because of her race in violation of 42 U.S.C. §§ 2000e-2000e-17 (Title VII), 42 U.S.C. § 1981, and Ohio Revised Code § 4112.02 and § 4112.99. Carter also claimed that the University subjected her to a racially hostile work environment in violation of Title VII and Ohio law. The University moved for summary judgment, arguing that Carter had failed to present either direct or circumstantial evidence of racial discrimination, and asserting that her hostile work environment claims were without merit because she had not presented any evidence supporting these claims.

In June of 2002, the district court granted the University's motion for summary judgment. Carter filed a timely appeal. In her briefs on appeal, however, Carter does not address the district court's ruling on her claims of a racially hostile work environment. We therefore consider those arguments waived. See Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 544 n. 8 (6th Cir.2002) ("It is well established that an issue not raised in a party's briefs may be deemed waived.").

II. ANALYSIS

A. Standard of review

We review a district court's grant of summary judgment de novo. Therma-Scan, Inc. v. Thermoscan, Inc. 295 F.3d 623, 629 (6th Cir.2002). Summary judgment is proper where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the district court must construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Direct evidence of discrimination

We shall consider Carter's federal and state-law discrimination claims under the Title VII framework because Ohio's requirements are the same as under federal law. See Ohio Civil Rights Comm'n v. Ingram, 69 Ohio St.3d 89, 630 N.E.2d 669, 674 (1994). To establish a Title VII employment discrimination claim, Carter was required to either "present direct evidence of discrimination or introduce circumstantial evidence that would allow an inference of discriminatory treatment." Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir.2003). Carter argues that the alleged comments made by Murry constitute direct evidence of discrimination. She points to three comments purportedly made by him: (1) that Czerniak was "trying to whitewash the College of Education" faculty, (2) that Murry was struggling with Czerniak to appoint African-American professors, and (3) that "the decision-makers at the College of Education are a bunch of racists."

The district court began its analysis by considering whether or not Carter would be allowed to testify as to these comments allegedly made by Murry. We do not need to address this evidentiary issue with regard to our analysis of the direct-evidence argument, however, because even if Murry's comments are admissible as nonhearsay, they do not constitute direct evidence of discrimination against Carter under controlling Sixth Circuit precedent.

This court has held that comments made by individuals who are not involved in the decision-making process regarding the plaintiff's employment do not constitute direct evidence of discrimination. See Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir.2002) (holding that a company manager's opinion that "race was a factor" in the company's decision not to promote the plaintiff was not direct evidence for purposes of the plaintiff's discrimination claim because the manager had "no involvement in the decision-making process with respect to the particular jobs at issue"). Murry was not a decision-maker with regard to the renewal of Carter's visiting professorship. His statements therefore cannot be considered direct evidence of racial discrimination against Carter.

C. Circumstantial evidence

Where a plaintiff fails to present direct evidence of discrimination, the burden-shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), applies. Johnson, 319 F.3d at 865-66. The plaintiff must...