White v. Baxter Healthcare Corp.

Citation533 F.3d 381
Decision Date03 July 2008
Docket NumberNo. 07-1626.,07-1626.
PartiesTodd A. WHITE, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
533 F.3d 381
Todd A. WHITE, Plaintiff-Appellant,
No. 07-1626.
United States Court of Appeals, Sixth Circuit.
Argued: March 12, 2008.
Decided and Filed: July 3, 2008.

[533 F.3d 384]

ARGUED: Chrisdon F. Rossi, Law Offices of Gary Rossi, Bloomfield Hills, Michigan, for Appellant. Noah A. Finkel, Seyfarth Shaw, Chicago, Illinois, for Appellee. ON BRIEF: Gary A. Rossi, Law Offices of Gary Rossi, Bloomfield Hills, Michigan, for Appellant. Noah A. Finkel, Seyfarth Shaw, Chicago, Illinois, for Appellee.

Before KEITH, CLAY, and GILMAN, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. GILMAN, J. (pp. 406-11), delivered a separate opinion concurring in part and dissenting in part.


CLAY, Circuit Judge.

Plaintiff, Todd A. White ("White"), an African-American, appeals the district court's grant of summary judgment in favor of Defendant, Baxter Healthcare Corporation ("Baxter"), on White's employment discrimination claims brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2000), Section 101 of the Civil Rights Act of 1991, 42 U.S.C. § 1981 (2000), and Michigan's Elliot-Larsen Civil Rights Act (the "Elliot-Larsen Act"), Mich. Comp. Laws § 37.2101 et seq. (2002). In particular, White contends that he has presented sufficient evidence for a jury to conclude that he was discriminated against on the basis of his race when Baxter (1) failed to promote him, and (2) downgraded his 2004 performance evaluation. We agree, and, for the reasons that follow, we REVERSE the district court's grant of Baxter's motion for summary judgment and REMAND the case for trial.


Baxter, a subsidiary of Baxter International, Inc., produces and sells medical

533 F.3d 385

technologies related to the blood and circulatory systems. In April of 1998, Baxter purchased White's former employer, Ohmeda Pharmaceutical Products, Inc. ("Ohmeda"), and merged it into Baxter's Anesthesia, Critical Care, and Oncology ("ACCO") division. Since then, White has been a sales representative at Baxter, selling proprietary and generic pharmaceutical products to anesthesia professionals.1 In January of 2001, White was promoted to the position of Teaching Center Specialist ("TCS"), a specialized sales representative who sells products to larger hospitals that run teaching programs and who is held to a higher standard of product knowledge and teaching skills.

During his first six years at Baxter, White was primarily supervised by Baxter Regional Manager Richard Clark ("Clark"), who also served as White's supervisor at Ohmeda prior to its merger with Baxter. White has not alleged, and the record does not reflect, that Clark harbors any discriminatory animus toward African-Americans. Beginning January 1, 2004, White was required to report to Tim Phillips ("Phillips"), Baxter Regional Manager of Northern Teaching Center Specialists, as his primary supervisor. Clark and Phillips, in turn, reported to Carl Gold ("Gold"), the ACCO Area Vice President for Sales for the eastern half of the United States.

Soon after Phillips became his supervisor, White began to notice signs of a discriminatory animus toward African-Americans on the part of Phillips. For example, according to White, when he complained to Phillips about scheduling a work meeting on the Martin Luther King, Jr. holiday, Phillips responded by telling White that "nobody wants to be around a black man." J.A. at 106. Phillips had allegedly made a similar comment — "no one wants to work with a black man" — when talking about workforce diversity with another Baxter employee, Jacinta Toland, on a previous occasion. J.A. at 633. White also noted that, during one of their conversations, Phillips had referred to an African-American sales representative as "that black girl," rather than referring to her by her name, Tanisha Gabriel, or by her position title. Likewise, Phillips would occasionally answer White's calls in jest by saying "White, Todd" instead of calling White by just his first name as he would with other employees. Finally, White was disturbed when Phillips circulated an e-mail to Baxter employees which showed an image of Osama Bin Laden morphing into O.J. Simpson and which contained the subject line "I KNEW IT!!! I KNEW IT!!! I KNEW IT!!!"

In contrast to the racially discriminatory comments White heard from Phillips, his experience at Baxter prior to being supervised by Phillips was one in which he generally received positive recognition for his outstanding sales performance. In 2000, White was awarded membership in Baxter's Distinguished Sales Club ("DSC") which is reserved for the top five percent of Baxter sales representatives in the country. Likewise, in 2001, White was placed in a TCS position, the highest sales position within Baxter. Finally, in 2003, White received a Sales Achievement Award and won a company-paid trip for being within the top twenty percent of sales representatives in the country. White was rated as "Meeting Expectations"

533 F.3d 386

in the years 2001 and 2002, and achieved the higher "Exceeding Expectations" rating in 2000 and 2003.2

Hoping to use his strong sales background to help Baxter's ACCO division perform even better, White applied for the position of ACCO Midwest Regional Manager in September of 2004. This was White's first, and only, application for a Regional Manager position at Baxter. Baxter had never previously hired any African-American managers (either regional or higher-ranked supervisors) within its ACCO division.

Gold was responsible for making the final hiring decision for the Regional Manager position. He enlisted Daryl Martin ("Martin"), Baxter Human Resources Director, and Carl Kunz ("Kunz"), ACCO Vice President for Sales for the western half of the United States, to assist him. Phillips was not formally involved in the Regional Manager selection process. However, according to Phillips, he encouraged White to apply for the position and told Gold that White would be "a good fit" for the job. J.A. at 175. Phillips also testified that he talked to Kunz about White's application, but his testimony does not indicate what was said during the conversation. Gold confirms that he spoke with Phillips about White. Yet, according to Gold, although Phillips had presented White as a potential management candidate in an internal development process called the Organized Talent Review ("OTR"), Phillips had "never really discussed the fact that [White] could move into a manager role." J.A. at 638.

As part of their selection process for the Regional Manager position, Gold, Martin, and Kunz interviewed White and four other candidates: Stacy Hord, Brett Corrick, Carey Redd, and Maggie Freed ("Freed"). White was the only African-American and the only applicant with a masters degree.3 Freed, on the other hand, was the only woman interviewed for the position, and the only applicant who had not previously been a Baxter sales representative. In addition to interviewing the candidates, Gold, Martin, and Kunz also reviewed their resumes and prior performance evaluations and spoke to their regional managers. After the interviews were complete, Gold, Martin, and Kunz each ranked the candidates on their own before proceeding to a group discussion of them. All three interviewers ranked White last among the applicants. By contrast, the interviewers all ranked Freed as the top candidate. Freed was subsequently promoted to the Regional Manager position.

In their depositions, Gold, Martin, and Kunz explained their reasons for ranking White and Freed in the manner that they did. While each interviewer described Freed as enthusiastic, well-prepared, and ready for management, none of them expressed a concern that Freed was the only candidate lacking experience as a Baxter sales representative. Kunz noted that Freed had some prior experience in hiring, training, and managing people. Gold likewise found Freed to be "a person who's

533 F.3d 387

extremely energetic, talking about the business in a positive way, talking about the company in a positive way, the great cheerleader for her people." J.A. at 641. Gold also noted that Freed "had done some homework" and "knew the personnel in that central north — central Midwest region." Id. Finally, Gold indicated that he had been impressed by the fact that Freed "had a plan in place to try to move the business forward right out of the gate" with specific goals of where she needed to go in the next thirty, sixty, and ninety days. Id. Neither Gold, Martin, nor Kunz commented on Freed's lack of sales experience.

In contrast to Freed, the interviewers viewed White as "extremely aggressive." J.A. at 354. They also expressed concerns about his alleged lack of management experience. They observed that, in his evaluations, White "was not referred to as a team player." J.A. at 638. They further claimed that White interviewed poorly, purportedly coming across as "confrontational" and not focused on the bigger picture of how to "turn the region around" and "move the business forward." J.A. at 640. In particular, Gold noted that White had asked him "what have I [Gold] done to promote cultural diversity within the company," and explained that "I would have rather him told me what he was going to do, you know, what his plan was — plan of action, where he thought this business was going to do [sic], what he thought he would do in the region to change things because he knew the situation." J.A. at 354.

In late September of 2004, White was informed that he had not received the Regional Manager position. A few months later, White received more bad news in the form of his 2004 performance evaluation.

As a Baxter employee, White was subject to both mid-year and year-end performance reviews. In these reviews, Baxter employees are evaluated in terms of "performance management objectives"...

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