NOT RECOMMENDED FOR PUBLICATION

File Name: 17a0006n.06

No. 16-3175

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TONI HORN,

Plaintiff-Appellant,

v.

CITY OF CLEVELAND,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO

BEFORE: GRIFFIN, WHITE, and DONALD, Circuit Judges.

PER CURIAM. Toni Horn appeals the district court’s grant of summary judgment to the 

City of Cleveland, her employer, on her failure-to-promote, sex-discrimination, and retaliation 

claims. We AFFIRM. 

I.

Horn began employment with the Waste Collection and Disposal division of the City of 

Cleveland’s Department of Public Works in March 1989, as a waste collector. At pertinent 

times, the Waste Collection division was headed by Commissioner Ronnie Owens and General 

Superintendent Anthony Ludwig. Working under Owens and Ludwig were nineteen managers 

consisting of five assistant superintendents, five foremen-I, and nine foremen, located at various 

collection and disposal stations. Horn worked at the Carr Center Station. 

In July 1996, Horn was promoted to Foreman. Around December 2010, Horn was 

appointed Acting Foreman I at the Ridge Road station, where she trained foremen and oversaw 
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waste collectors and drivers. Horn also occasionally filled in for Assistant Superintendent 

Wayne Thornton at the Ridge Station. 

While an Acting Foreman I, Horn was suspended for one day for neglect of duty based 

on an incident on December 5, 2011, when her crew left trash uncollected and she had them 

collect the trash after hours without alerting her supervisor. 

On April 17, 2012, Horn resigned from the Acting Foreman I position in a letter to 

Commissioner Owens stating that she wanted to “go back and continue my position as a waste 

collection foreman.” PID 596, 641. 

Around June 2012, Horn unsuccessfully bid for three Foreman I positions and one 

Assistant Superintendent position. Four men were promoted to those positions. In November 

2012, the Union filed a grievance on Horn’s behalf asserting that the City violated the CBA by 

denying Horn’s bids for promotion. This grievance eventually proceeded to binding arbitration 

in December 2014, as discussed below. In the interim, in late November 2012, Horn filed gender 

discrimination charges with the Equal Employment Opportunity Commission (EEOC) and Ohio 

Civil Rights Commission (OCRC). 

II.

Horn instituted this sex discrimination and retaliation action in September 2013, alleging 

that the City unjustifiably disciplined her and deprived her of promotions based on her sex, and 

retaliated against her by suspending her for filing grievances and EEOC and OCRC charges of 

sex discrimination. In addition, Horn alleges that the City failed and refused to process her 

grievance in retaliation for her EEOC and OCRC charges. 
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Counsel advised the district court at a status conference that Horn’s grievance was 

presented at an arbitration hearing and a final decision was expected in March 2015. On the 

district court’s order that the parties brief why Horn’s complaint should not be dismissed “in 

light of the binding Arbitration proceeding on the identical issues,” PID 143/Order 1/26/15, the 

parties stipulated as follows: 

1. With respect to the arbitration of a union grievance between Plaintiff and the 

City of Cleveland, in which Plaintiff participated on December 16, 2014, no 

decision has been forthcoming from that arbitration as of this date. 

2. Plaintiff and Defendant agree that the issues adjudicated, or which will be 

adjudicated, in that arbitration proceeding, do not bar under the doctrines of 

res judicata or collateral estoppel or otherwise, Plaintiff’s claims in this case. 

PID 147/Stipulation 2/9/15. 

Arbitration of Horn’s Contractual Claim 

The issue before the arbitrator was whether the City violated Article 25 of the Collective 

Bargaining Agreement (CBA), titled “Promotions and Transfers,” by not promoting Horn. 

Article 25 provides in pertinent part:

70. [] The City shall award the vacancy to the most qualified applicant within the 

bargaining unit. Only when the qualifications of two (2) or more applicants are 

equal will the position be awarded on the basis of seniority. All determinations 

regarding qualifications remain within the sole discretion of the City. 

. . .

72. The Employer shall consider the following factors to determine the 

qualifications of the applicants: 

A. Seniority; 

B. Past performance/work-related experience/demonstrated abilities/previous 

temporary transfer; 

C. Work-related experience with another employer (where such information is 

provided by the employee); 

D. Aptitude; 

E. Education/training; 
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F. Prior discipline imposed during the two year period immediately preceding 

the date of the bid notice; 

G. Lack of interest/failure to follow through; 

H. Opinion of supervisors, judgment of applicant’s knowledge, skills and ability; 

I. Past attendance record . . . 

J. Any special requirements reasonably related to the bid position. 

PID 489-91/CBA. 

The Arbitrator issued his ruling in March 2015, sustaining Horn’s grievance in part on 

the basis that the evidence clearly and convincingly showed that Horn was as or more qualified 

for the Foreman I position than the other applicants. 

The arbitrator noted in particular that Nathaniel Mason, one of the men promoted to 

Foreman I, had received a two-day suspension for neglect of duty, insufficiency in work, and 

wasteful use of public supplies or equipment relative to a June 30, 2011, incident in which 

Mason was “observed moving furniture on City time, which is a violation of the City of 

Cleveland’s Policies and Procedures.” PID 624. The Employee Incident Report completed by 

Mason’s superior, Assistant Superintendent Thornton, states that Mason “was observed carrying 

bedding into a resident [sic] house . . . who has five small children and they had nothing to sleep 

on.” PID 625. 

Regarding the Assistant Superintendent position for which Horn had bid, the Arbitrator 

concluded that there was insufficient evidence to show that the City’s decision to select Michael 

Nunn over Horn was arbitrary, an abuse of discretion, or otherwise clearly erroneous. 

City’s Motion for Summary Judgment

On the City’s motion for summary judgment following discovery, the district court 

determined that Horn established a prima facie case of sex discrimination, that the City 
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articulated legitimate, non-discriminatory reasons for not promoting her, and that Horn did not 

meet her burden of showing “that the City’s proffered reasons were insufficient to warrant the 

challenged conduct; thus, she failed to establish pretext.” PID 785. 

As to Horn’s retaliation claim, the district court determined that she failed to establish the 

fourth prima facie element—that there was a causal connection between her EEOC/OCRC 

filings and either her disciplinary suspensions or the alleged delayed processing of her 

grievances. 

III.

This court reviews de novo the district court’s grant of summary judgment. Hawkins v. 

Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008). The district court must construe the 

evidence and draw all reasonable inferences in the nonmoving party’s favor in determining 

“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.” Id. (quoting Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)). 

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating 

against any individual “because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). 

Because Horn relies on circumstantial evidence of discrimination, we apply the burden-shifting 

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 

The district court determined that Horn established a prima facie case, which, in the 

failure-to-promote context, consists of showing that (1) she is a member of a protected class; 

(2) she applied for and was qualified for a promotion; (3) she was considered for and denied the 
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promotion(s); and (4) an individual of similar qualifications who was not a member of the 

protected class received the promotion(s) at the time the plaintiff’s request for promotion was 

denied. White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005). We agree.

The burden then shifted to the City to articulate a legitimate, non-discriminatory reason 

for not promoting Horn. The City met that burden by proffering the following reasons: her past 

performance, prior discipline, and lack of aptitude and follow through. The City also asserted 

that Horn was the only candidate who received negative reviews from her supervisors. Horn 

must therefore “prove by a preponderance of the evidence that the legitimate reasons offered by 

the defendant were not its true reasons, but were a pretext for discrimination.” Texas Dep’t of 

Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 

A plaintiff may establish pretext by showing that the employer’s proffered reason for the 

adverse employment action (1) has no basis in fact, (2) did not actually motivate the action, or 

(3) was insufficient to warrant the action. See e.g., Seeger v. Cincinnati Bell Tel. Co., LLC, 681 

F.3d 274, 285 (6th Cir. 2012). This “three-part test need not be applied rigidly. Rather, ‘pretext 

is a commonsense inquiry: did the employer [fail to promote] the employee for the stated reason 

or not?’” Blizzard v. Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012) (citation and 

alteration omitted). “[A] reason cannot be a pretext for discrimination unless it is shown both 

that the reason was false, and that discrimination was the real reason.” Seeger, 681 F.3d at 285 

(alteration omitted) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Thus, 

regardless of which rebuttal method a plaintiff uses, “[s]he always bears the burden of producing 

sufficient evidence from which the jury could reasonably reject the defendant’s explanation and 

infer that the defendant intentionally discriminated against h[er].” Id. (alterations omitted). 
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A.

Horn contends she raised a genuine issue of material fact regarding pretext because she 

was more qualified than other male applicants, but did not get promoted to either Foreman I or 

assistant superintendent. Horn had greater seniority and was a supervisor for much longer than 

other applicants. But seniority matters under the collective bargaining agreement “[o]nly when 

the qualifications of the two (2) or more applicants are equal.” (PID 489). In other words, 

seniority is a “tie breaker.” (PID 431). And as a result of her seniority, Horn also had more onthe-job supervisory experience than other applicants. But others also had supervisory 

experience. 

More importantly, the record makes clear the City did not give this experience much 

weight in light of Horn’s job performance (and as compared to other applicants).1 Commissioner 

Owens made the decision of whom to promote, with the assistance of Ludwig. According to 

Horn, Owens told her that she was not promoted because of discipline she had received while an 

acting Foreman I. A Foreman I’s job duties, are, in Horn’s words, to “oversee the foremen to 

make sure they’re doing their job. . . . [H]e makes sure they get assigned to the right jobs, [a]nd 

he oversees the area getting picked up.” (PID 394). 

On December 5, 2011, while acting as a Foreman I, Horn failed to ensure a particular 

garbage collection route was collected because, she claims, she was unfamiliar with, and had not 

been trained on, the route, despite having a map of the area. The City discovered this failure 

because, and quite coincidentally, Ludwig lived on the route that Horn’s crew missed. Ludwig 

 

1Horn’s “subjective view of her qualifications in relation to those of the other applicants, 

without more, cannot sustain a claim of discrimination.” Hedrick v. W. Reserve Care Sys., 355 

F.3d 444, 462 (6th Cir. 2004). 
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then discovered Horn authorized a crew to pick up the uncollected trash off-the-clock without 

notifying her supervisors of the incident, and questioned whether the City would have discovered 

Horn’s infraction had he not lived where he did. Horn received a one-day suspension. 

This incident weighed heavily against Horn’s requested promotion in regard to three of 

the criteria set forth in the union contract: past performance, aptitude, and prior discipline. It 

appeared that she lacked the basic ability to read routes on a map, attempted to conceal her error, 

and exposed other city workers and the City to possible liabilities by having them collect garbage 

off-the-clock. As a supervisor, commented Ludwig, “she not only has to enforce the policies and 

procedures, . . . she needs to follow them also. And she was negligent in doing that.” (PID 681).

Although Mason had been suspended for two days for moving furniture for a city resident 

using a city truck, Ludwig testified that the distinguishing factor between these incidents is that 

Horn’s infraction involved her supervisory skills: 

But I’m looking at this and it looks like this was him and a vehicle. And 

definitely this is a serious infraction, but we’re also looking at, Ms. Horn had 

multiple people under her supervision that were putting the City at risk. 

(PID 445). Given this distinction, reasonable minds could not view Horn’s suspension and 

Mason’s suspension as comparable. 

The City also discounted Horn’s application for “lack of interest” because after assuming 

an acting Foreman I position in December 2010, she voluntarily stepped down in April 2012—

just a few months before she applied again for the same job. In Ludwig’s view, this “really 

spoke volumes as far as for [her] not wanting to stay in that position.” (PID 435; see also PID 

682). 

Horn initially stepped down from this position by way of a one-sentence letter. She then 

wrote a follow-up letter, detailing her reasoning. In it, she protests that the City promoted a male 
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employee (Michael Nunn) to the Acting Superintendent position instead of her and without 

posting the position because of the failure-to-collect waste incident discussed above. She then 

complains that it was “really unfair” that she was “disciplined for things I have no control over,” 

suggesting that the City’s failure to properly train her led to that discipline. (PID 354-55, 399). 

But she insists that she has always been capable of performing her job duties. 

Ludwig testified that he was unaware of Horn’s letter to Owens. Horn did not depose or 

present an affidavit from Owens, and he was not called to testify at the arbitration hearing. In 

any event, assuming, as the City acknowledged at argument, that Owens, as the addressee, 

received Horn’s letter, the letter does not move the needle with respect to the City’s conclusion 

that Horn lacked interest, or raise the specter of sex discrimination—she stepped down from her 

supervisory position as an Acting Foreman I for the possibility of pursuing the assistant 

superintendent supervisory position, and then reapplied for the Foreman I job shortly thereafter. 

She also testified she did not receive consideration for the assistant superintendent position 

because of the trash collection incident she does not dispute occurred. The City’s determination 

that Horn lacked interest in an Acting Foreman I position is rationally supported. 

At most, Horn showed that she was “marginally more qualified than the successful 

candidate[s].” Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006). In resolving 

an ADEA claim in the reduction-in-force context, we held that qualifications evidence will be 

sufficient to raise a question of fact as to pretext if the plaintiff provides other probative evidence 

of discrimination.

2

 Id. at 626-27. This would include, for example, evidence of a workplace 

permeated with frequent degrading remarks about women. See, e.g., Risch v. Royal Oak Police 

 

2

This is especially the case with respect to the assistant superintendent position, as Horn 

makes no argument as to why she was more qualified than the male who received that position, 

Michael Nunn. 
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Dep’t, 581 F.3d 383, 392–93 (6th Cir. 2009). The district court rightly found Horn did not 

present such evidence, dismissing three passing references to her sex: 

She insists that supervisors and managers discriminated against her because she is 

a female. With regard to Kevin Campbell, a Foreman I: “ I was subjected to 

harsh talking. . . . I was just getting – getting – my men was getting taken away 

from me. I was getting harsh treatment. Every day I was coming to work, I was 

getting harsh treatment.”

As to Warren Thornton, her immediate supervisor: 

Q. Was he difficult to work for? 

A. Was he? Yes. 

Q. In what respect? 

A. It was just a . . . It was just like, this is a man’s job. He made it 

hard for women. He was really difficult to work with. 

Q. Was he verbally abusive? 

A. He was not so much verbally abusive, he was just hard on women. 

Q. As opposed to men? 

A. Yes. 

Q. Can you give me an example? 

A. I mean, he would say something like, this is a man’s job. 

Q. In a discouraging manner? 

A. Um-hmm. 

Concerning General Superintendent Ludwig: 

A. Basically, I remember mentioning something to him, saying 

something to him. I know I said something to him in a hostile 

manner, yeah. 

Q. In a hostile manner? 

A. Because I felt he was discriminating to me, yeah, and I told him. 

Q. So you discussed with him the issue that you were not getting the 

proper training in the foreman I position? 

A. No, I didn’t discuss that. 

Q. What did you discuss with him? 

A. I told him that he don’t call me. When I’m on the radio, he don’t 

call me. He would just bypass me and call the men. He just totally 

ignored me, and I knew that, and I told him that. 

There is no probative evidence that Campbell or Thornton had any input into the 

promotion decision. Commissioner Owens was the ultimate decision-maker; but

there is testimony that Ludwig would confer with Owens about the candidates and 

the applicable criteria. Nevertheless, the statements by these three individuals 
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have no context; there is no timeframe provided; and therefore, the intent of the 

speakers is unclear. “Isolated or ambiguous comments are too abstract to be 

considered as circumstantial evidence of discrimination in pretext analysis;” and 

thus, Plaintiff fails, in this regard, to meet her burden of showing pretext by a 

preponderance of the evidence. See Ercegovich v. Goodyear Tire & Rubber Co., 

154 F.3d 344, 355-57 (6th Cir. 1998). 

(PID 782-84). 

Title VII “does not require employers to make perfect decisions, nor forbid them from 

making decisions that others may disagree with. Rather, employers may not hire, fire, or 

promote for impermissible, discriminatory reasons.” Browning v. Dep’t of Army, 436 F.3d 692, 

698 (6th Cir. 2006) (citation omitted). “As we have oft times repeated, ‘it is inappropriate for the 

judiciary to substitute its judgment for that of management.’” Hedrick, 355 F.3d at 462 (6th Cir. 

2004) (citation omitted). Put another way, “[o]ur role is to prevent unlawful hiring practices, not 

to act as a ‘super personnel department’ that second guesses employers’ business judgments.” 

Id. (citation omitted). And in the case of management positions, like those for which plaintiff 

applied, we afford “even greater flexibility in choosing a management-level employee . . . 

because of the nature of such a position.” Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). 

B.

None of Horn’s evidence, read in her favor, supports that a reasonable jury could find 

that the City’s proffered reason for not promoting her was manufactured to conceal 

discrimination. Nor has Horn produced any evidence that the ultimate decision maker, 

Commissioner Owens, held any animus against her on the basis of her sex. The district court 

properly granted the City summary judgment on Horn’s sex-discrimination claim. 
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IV.

As for her retaliation claim, Horn maintains that she was unjustly disciplined in May 

2013 because she filed an EEOC/OCRC charge in November 2012. Specifically, Horn was 

suspended for fifteen (non-consecutive) working days based on an April 12, 2013 incident, for 

neglect of duty, conduct unbecoming an employee in the public service, insubordination, and 

“for other failure of good behavior which is detrimental to the service, or for any other act of 

misfeasance, malfeasance, or nonfeasance in office.” PID 321-22. In May 2013, the Union 

grieved that suspension on Horn’s behalf. In August 2013, Horn filed charges with the OCRC 

asserting gender discrimination and retaliation in connection with the fifteen-day suspension.

Title VII prohibits an employer from retaliating against an employee because she “has 

opposed any practice made an unlawful employment practice by this subchapter, or because 

[s]he has made a charge, testified, assisted, or participated in any manner in an investigation, 

proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). A retaliation claim can 

be established either by direct evidence or by circumstantial evidence that would support an 

inference of retaliation. Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). 

Because Horn relies on circumstantial evidence, we analyze her claim under the McDonnell 

Douglas burden-shifting framework. McDonnell-Douglas, 411 U.S. at 802. 

To establish a prima facie case, Horn must show that (1) she engaged in protected 

activity, (2) her exercise of protected rights was known to the City, (3) the City took adverse 

employment action against her, and (4) there was a causal connection between her protected 

activity and the adverse employment action or harassment. Morris v. Oldham Cty. Fiscal Court, 

201 F.3d 784, 792 (6th Cir. 2000). “The burden of proof at the prima facie stage is minimal; all 
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the plaintiff must do is put forth some credible evidence that enables the court to deduce that 

there is a causal connection between the retaliatory action and the protected activity.” Dixon v. 

Gonzales, 481 F.3d 324, 333 (6th Cir. 2007). If Horn carries her burden of establishing a prima 

facie case of retaliation, the burden of production of evidence shifts to the City to articulate some 

legitimate, nondiscriminatory reason for its actions. If the City satisfies its burden, the burden 

shifts back to Horn to demonstrate that the employer’s proffered reason was not the true reason 

for the adverse employment action. Laster, 746 F.3d at 730. “Title VII retaliation claims must 

be proved according to traditional principles of but-for causation,” which “require[ ] proof that 

the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or 

actions of the employer.” Id. at 731 (citation omitted). 

A.

There is no dispute that Horn established the first three prima facie elements. The City 

argued, and the district court agreed, that Horn did not establish the fourth prima facie element—

that there was a causal connection between her protected activity, the filing of her EEOC/OCRC 

charges asserting sex discrimination and retaliation in late November 2012, and the fifteen-day 

suspension imposed in May 2013, five months later. 

During an ongoing investigation by the City of Cleveland prosecutor’s office of a motorvehicle accident in which one of Horn’s crew was involved, Horn went to the accident victim’s 

home and attempted to convince the victim that her crew member was not the cause of the 

accident. The prosecutor’s office learned of Horn’s visit and called Commissioner Randell 
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Scott,3 who issued Horn a fifteen-day suspension as a result. Scott played no part in the 

determinations not to promote Horn and testified at the arbitration hearing that Horn’s failure-topromote complaints played no role in the decision to suspend her. 

B.

As the district court observed, it was Horn’s burden to present sufficient evidence from 

which an inference could be drawn that the City would not have issued the disciplinary 

suspension had she not filed a discrimination charge. Nguyen v. City of Cleveland, 229 F.3d 559, 

563 (6th Cir. 2000). In this regard, evidence that the City treated Horn differently than similarly 

situated employees is relevant to causation. See id. (“Although no one factor is dispositive in 

establishing a causal connection, evidence that defendant treated the plaintiff differently from 

similarly situated employees . . . is relevant to causation.”). Horn’s OCRC charge stated that, to 

her knowledge, no other manager had been issued a fifteen-day suspension within the past 

several years, but she failed to identify any other managerial employee and submitted no 

evidence that another employee received a lesser penalty for a similar infraction, thus the district 

 

3Commissioner Scott replaced Commissioner Owens when Owens retired in late 2012. 

PID 419. Scott testified that he reviewed Horn’s denial-of-promotion grievance while he was 

Acting Commissioner. Scott’s letter to the Union regarding the Step 1 Grievance Hearing stated 

in pertinent part: 

Based upon the facts presented at the grievance hearing, it has been determined 

that under the Local 1099 Contract, (promotions and transfers) Ms. Horn’s 

discipline history during the two year period immediately preceding the date of 

the bid notice for Waste Collection Foreman was weighed by the City for this

position. She was not found to be the best candidate, per the union’s contract 

criteria for said position. Therefore, it has been determined that this grievance has 

no merit and is denied at Step 1. 

PID 584. 
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court properly granted summary judgment on her claim that the City unjustly disciplined her in 

retaliation for her protected activity. 

Horn did not argue below, nor does she on appeal, that she established a causal 

connection between her protected activity in November 2012 and the fifteen-day suspension 

issued in May 2013 based on temporal proximity. 

We conclude that the district court properly determined that Horn presented insufficient 

evidence of a causal connection between her protected activity and the fifteen-day suspension, 

the fourth prima facie element of her retaliation claim, and thus properly dismissed that claim.

V.

Horn’s final argument is that she “has been denied the regular and timely processing of 

her grievances that might have remedied her situation, all for the reason that she filed charges 

with the EEOC.” Appellant Br. 23; PID 742. 

The district court acknowledged that resolution of Horn’s failure-to-promote grievance 

took years (from approximately November 2012 until March 2015, when the Arbitrator issued 

his ruling). The CBA provides that “prompt adjustment of grievances is desirable . . .” PID 507. 

As the district court noted, however, the term “prompt” is not defined in the CBA. The district 

court determined, and Horn does not dispute, that “[i]t is obvious that the EEOC charges and the 

instant lawsuit inserted delays into the process,” and that Horn provided no evidence of what a 

typical timeframe is for processing a grievance of this kind. The district court remarked that “the 

Arbitrator found, without assessing blame, that the ‘delay undoubtedly was influenced by the 

pending court litigation that involves similar factual issues relative to the denial of the Grievant’s 
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promotional bids,’” and that Horn’s contentions that the procedural delays evidenced retaliatory 

animus “are defeated by her own stipulation at the Arbitration Hearing: ‘The parties stipulated 

that all procedural and substantive requirements of the grievance/arbitration provisions and the 

CBA were complied with.’” PID 641/Arbitrator Op.; PID 790/Dist Ct. Op. 

We agree with the district court and affirm the dismissal of Horn’s retaliation claim 

asserting untimely processing of grievances. 

VI.

For the reasons stated, we AFFIRM the district court’s grant of summary judgment to the 

City of Cleveland. 
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HELENE N. WHITE, Circuit Judge (concurring in part and dissenting in part). I agree 

with the majority’s disposition of Horn’s retaliation claims, but respectfully dissent regarding her 

sex discrimination claim.

I.

The parties agree that Horn is the only woman in the history of the City of Cleveland’s 

Waste Collection and Disposal Division to have held a Foreman position. She was promoted to 

Foreman in 1996. Fourteen years later, in December 2010, she was appointed Acting Foreman I 

at the Ridge Road station (not her usual station), where she also occasionally filled in for the 

Assistant Superintendent, Wayne Thornton. 

After holding the Acting Foreman I position for about one year, Horn was suspended for 

one day based on an incident on December 5, 2011, when one of the crews she supervised left 

trash uncollected and she had the crew collect the trash after hours without advising her 

supervisor. 

On April 17, 2012, Horn notified then-Commissioner Ronnie Owens in writing that she 

was resigning the Acting Foreman I position, “I Toni Horn will like to relinquish my position as 

a Foreman I at Ridge Road and therefore go back and continue my position as a waste collection 

Foreman.” PID 596. By letter dated April 19, 2012, Commissioner Owens advised that he 

accepted Horn’s request and that, effective April 18, 2012, she was to report to her former 

position as Foreman of District 120. PID 597. Commissioner Owens carbon copied Horn’s 

personnel file. That same day, Horn clarified in a letter to Commissioner Owens why she 

resigned: a male under her supervision had been promoted to Assistant Superintendent while she 
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was on vacation and she had not been informed that an Assistant Superintendent position was 

open:

First, . . . I am not removing myself from the position because I cannot perform 

the job because I can and have been doing so. I have been in the position . . . for 

eleven months and have been a foreman for 15 years so I am fully aware of the 

policies and procedures as a foreman. As Acting Foreman 101, I have been in 

charge of running the Station whenever the Assistant Superintendent Warren 

Thornton would be off for any reason, . . . I ran the station well. What I don’t 

seem to understand is why when I returned from vacation there were changes 

made in which Asst. Superintendent Warren Thornton was transferred out, and 

Michael Nunn was placed into the position . . . when I was just working over him 

[Nunn] as Foreman 101.

I was never informed of any opening whether it be acting or not, of the 

Assistant Superintendent position. The reason I was told during a grievance 

hearing on April 16, 2012 for not receiving the position is because I supposedly 

left some garbage out in District 110. A district I was never properly trained in 

because I always had to train other acting Foremans [sic] in District 130. It is 

really unfair that I continuously get disciplined for things I have no control over 

as Acting Foreman 101. All I am asking is that I be provided the same 

opportunity the two other Senior Foreman one’s [sic] (James Grant & Tim 

Owens) received seeing that I am the next Senior Foreman.

I would like to be considered for the position as Asst. Superintendent or Foreman 

101 . . . when it is properly posted, I can receive proper training in all districts, 

and am no longer just acting in these positions.

PID 598-99; 4/19/12 letter.

In June 2012, several months after resigning the Acting Foreman position, Horn 

unsuccessfully bid for three Foreman I positions and one Assistant Superintendent position. 

Four men were promoted to those positions.1

 

1 Vincent Callahan, Nathaniel Mason, and Kevin Campbell were promoted to Foreman I, 

and Michael Nunn was promoted to Assistant Superintendent.
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II.

The district court concluded that the City made a reasonably informed and considered 

decision not to promote Horn given her disciplinary record, which the court deemed unlike the 

lesser disciplinary infractions of the men selected. The district court also concluded that Horn’s 

record, disciplinary and otherwise, demonstrated a lack of interest and aptitude. PID 784-85.

To demonstrate pretext at the summary judgment stage, Horn must show by a 

preponderance of the evidence either 1) that the City’s proffered reasons for not promoting her 

had no basis in fact, 2) that the proffered reasons were not the true reason, or 3) that they were 

insufficient to motivate the failure to promote her. See Wexler v. White’s Fine Furniture, Inc., 

317 F.3d 564, 576 (6th Cir. 2003). 

Viewing the facts in a light most favorable to Horn, she presented sufficient evidence for 

a reasonable factfinder to reject the City’s proffered reasons for denying her promotions, e.g., 

find them unworthy of credence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 

147 (2000) (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the 

employer’s asserted justification is false, may permit the trier of fact to conclude that the 

employer unlawfully discriminated . . . . ”). First, she had the most seniority of any candidate 

and had held a managerial position much longer than Mason, whose resume states that he 

became a foreman in 2011. Second, she had prior experience as an Acting Foreman I and had 

filled in for Assistant Superintendent Thornton, neither of which are indicated on Mason’s 

resume. PID 613-14. Third, reasonable minds could differ regarding whether Horn’s one-day

disciplinary suspension for neglect of duty is, as Ludwig testified, “the most severe” among the 

applicants; rather, Mason’s two-day suspension for neglect of duty, insufficiency in work, and 
No. 16-3175

Horn v. City of Cleveland

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wasteful use of equipment could be found more severe. The district court improperly found as 

fact that “Mason’s use of a City truck for non-City business during work hours . . . did not reflect 

on his ability to perform a Foreman’s tasks.” PID 785. Fourth, Ludwig’s perception that Horn 

lacked interest and follow through because she declined a non-managerial promotional 

opportunity to a Transfer Station Attendant, which the district court assumed as fact, PID 786, is 

without record support. As the arbitrator observed, Horn maintained that she was never offered 

the position and there is no evidence any interview took place. PID 643. Fifth, Ludwig’s 

perception that Horn lacked interest because she resigned her Acting Foreman I position, which 

the district court determined “rationally justified Defendant’s view that Plaintiff lacked interest 

or showed a failure to follow through,” PID 785, was based on Horn’s two sentence letter to 

Commissioner Owens, and not her explanatory letter of two days later to Commissioner Owens, 

which explained that she was resigning the position because a male had been promoted to 

Assistant Superintendent when she had no opportunity to bid on that position and while she was 

away on vacation. As the arbitrator noted, there is no indication that Horn’s complaints of 

discrimination in her explanatory letter to Commissioner Owens were ever investigated. 

The district court improperly made factual findings and weighed credibility when it 

determined that the City made a reasonably informed and considered decision not to promote 

Horn. Along with her prima facie case, Horn presented sufficient evidence from which a factfinder could find the City’s proffered rationales for not promoting her were unworthy of belief. I 

would thus reverse the grant of summary judgment on Horn’s sex discrimination claim.