NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0694n.06

Case No. 19-4101

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAMELA HARRIS,

Plaintiff-Appellant,

v.

CITY OF AKRON, OHIO,

Defendant-Appellee.

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE 

NORTHERN DISTRICT OF 

OHIO

BEFORE: COOK, BUSH, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. Pamela Harris, an African American female, 

was a seasonal employee for the City of Akron, for which she had worked since 1994. 

Harris filed several complaints against the City with the Equal Employment 

Opportunity Commission and Ohio Civil Rights Commission, alleging various 

instances of discrimination and retaliation. The only claim here pertains to her 2014 

application for a permanent position as a landscaper. Harris claims that the City 

discriminated against her when it hired Mark Hodas, a Caucasian male, instead of 

her. But she cannot show an issue of material fact that would allow a reasonable jury 

to decide the case in her favor. Thus, we AFFIRM the district court’s grant of 

summary judgment.
Case No. 19-4101, Harris v. City of Akron

2

I. Background

Pamela Harris, an African American female, was a temporary laborer for the 

City of Akron from 1994 until 2017. Her performance evaluations reflected a mixture 

of negative, neutral, and positive reviews throughout her time there. In 2013, Harris 

applied for a permanent position as a landscaper in response to the City’s hiring 

notice. The City gave an examination to the applicants, and Harris placed seventh 

out of twelve. After three rounds of interviews, the City hired those who had scored 

first, third, and fourth on the exam. 

For a fourth round of interviews, the City invited Harris, Mark Hodas, and 

Troy Cross. After Cross withdrew, the City added Patrick Goodhart to the list of 

interviewees. Kevin Miller and Paul Burnett interviewed Harris. She alleges that the 

interview lasted for less than fifteen minutes and that Miller commented that “he 

[already] had someone he wanted to hire for the job, but that person did not work 

overtime.” (R. 32-13, PageID 369.) The City ultimately hired Mark Hodas, who had 

scored second on the exam. The City stated that it hired Hodas, in part, because of 

his previous work at a landscaping company and his experience with spraying 

herbicide.

1

1 Harris argues that Hodas’ experience in herbicide spraying cannot provide 

the basis for summary judgment because it is hearsay, since Kevin Miller learned 

about the experience from Hodas in the interview. But the only use for this 

information is to show the hiring motive, which makes this evidence solely about the 

effect it had on the City officials. This means that it is not hearsay in this context.

See Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009).
Case No. 19-4101, Harris v. City of Akron

3

In May 2018, Harris filed an amended complaint alleging age, race, and gender 

discrimination under Title VII, the Age Discrimination in Employment Act of 1967 

(ADEA), and Ohio Revised Code § 4112.02(A). She alleged multiple instances of hiring 

and employment discrimination, and she also alleged retaliation in violation of Title 

VII based on an unrelated incident. After discovery, the City moved for summary 

judgment, which the District Court granted. On appeal, Harris raises only the race 

and gender discrimination claims arising from the 2013–2014 permanent landscaper 

selection. 

Harris argues that the City discriminated against her when it gave a 

permanent landscaper position to a Caucasian male applicant instead of her. She 

points specifically to the fact that the City rejected Hodas three times before hiring 

him for the position, meaning that the City did not invoke its discretion to remove 

him from the eligibility list after three failed applications.2 She also suggests that the 

City’s previous rejection of Hodas even when he scored well means that the scores on 

the exams were not really the main motivating factor for hiring. She also notes that 

her interview was with two Caucasian males, that it was subjective and perfunctory, 

and that the City offered no records of the internal decision-making process. Finally, 

she argues that the City’s decision to add a fourth applicant into the interview round 

deviated from normal City policy and further undermines the City’s claim of 

neutrality.

2 She did not allege how often the City exercised this discretion or that they 

had previously used this discretion in a discriminatory way.
Case No. 19-4101, Harris v. City of Akron

4

The City responds by noting that, not only is the decision to exclude an 

applicant after three rejections a discretionary call, but that it was three distinct 

divisions that rejected Hodas before—specifically, the Parks Maintenance Division, 

the Highway Maintenance Division, and the Street Cleaning Division. They also state 

that adding the fourth candidate was in keeping with the “Rule of Three,” which 

required them to certify a pool of three applicants. 

II. Standard of Review

We review de novo a district court’s order granting summary judgment, 

affirming if the “depositions, answers to interrogatories, and admissions on file, 

together with the affidavits” show that no genuine issue of material fact exists and 

that “the movant is entitled to judgment as a matter of law.” Upshaw v. Ford Motor 

Co., 576 F.3d 576, 584 (6th Cir. 2009) (quoting Moses v. Providence Hosp. & Med. 

Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009)). We view the evidence in the light most 

favorable to the nonmoving party. Id. But the nonmoving party must provide evidence 

from which a rational trier of fact could find in its favor. See Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986).

When a party moving for summary judgment does not have the ultimate 

burden of proof, it must show a lack of evidence supporting the other party’s case. See 

White v. Baxter Healthcare Corp., 533 F.3d 381, 389–90 (6th Cir. 2008) (citing Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To survive summary judgment, the party 

with the ultimate burden must show more than “some metaphysical doubt as to the 

material facts.” Id. at 390 (quotation marks and citation removed). This does not 
Case No. 19-4101, Harris v. City of Akron

5

allow the party to “rest upon its mere allegations or denials of the adverse party’s 

pleadings,” but requires it to “set forth specific facts showing that there is a genuine 

issue for trial.” Id.

III. Analysis

When a plaintiff uses circumstantial evidence to show discrimination, courts 

apply the McDonnell Douglas / Burdine framework. See id. at 391. That analysis 

starts with requiring the plaintiff to establish a prima facie case of discrimination.

Id. If she does, then the employer must come forward with evidence of a legitimate, 

nondiscriminatory reason for the employment action it took. Id. Finally, if the 

employer does so, the plaintiff must show that the employer’s proffered reason is 

merely a pretext for discrimination. Id. at 391–92. “Although the burdens of 

production shift, the ultimate burden of persuading the trier of fact that the 

defendant intentionally discriminated against the plaintiff remains at all times with 

the plaintiff.” Id. at 392.

A. Prima Facie Case

A prima facie case requires four components: that the employee: 1) “is a 

member of a protected class”; 2) “was qualified for the job”; 3) “suffered an adverse 

employment decision”; and 4) “was replaced by a person outside the protected class 

or treated differently than similarly situated non-protected employees.” Arendale v. 

City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008). 

The parties have agreed that Harris showed a prima facie case of 

discrimination because 1) she is an African American female, 2) she applied for and 
Case No. 19-4101, Harris v. City of Akron

6

did not receive the permanent landscaper position, 3) she earned a spot on the list of 

eligible candidates, and 4) a Caucasian male received the job. Establishing a prima 

facie case is not difficult, and it creates a “presumption that the employer unlawfully 

discriminated against the employee.” Wixson v. Dowagiac Nursing Home, 87 F.3d 

164, 169 (6th Cir. 1996) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 

248, 254 (1981)). This presumption does not shift the burden of proof, but only the 

burden of producing some evidence of permissible motive. See Burdine, 450 U.S. at 

256 n.8.

B. Legitimate, Nondiscriminatory Reason

Once the plaintiff presents a prima facie case of discrimination, the burden of 

production falls on the defendant to articulate a “legitimate, non-discriminatory 

reason for the adverse employment action.” White, 533 F.3d at 391. This is not a 

burden to “persuade the court that it was actually motivated by the proffered 

reasons.” Burdine, 450 U.S. at 254. The defendant only has to present “clear and 

reasonably specific” reasons that will “frame the factual issue with sufficient clarity 

so that the plaintiff will have a full and fair opportunity to demonstrate pretext.” Id.

at 258, 255–56. 

The City explains that it hired Hodas because he had scored higher than Harris 

on the exam and ranked higher than she did on the eligibility list. And it specified 

Hodas’ previous employment experience in landscaping companies as a reason to 

choose Hodas for the permanent landscaper position. These reasons meet the burden 
Case No. 19-4101, Harris v. City of Akron

7

to provide a legitimate, nondiscriminatory reason for its hiring decision under 

Burdine. 

At this point, the presumption of discrimination “drops out” of this case. St. 

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). That is, the employer has met 

the burden of production, and the trial court focuses on whether the plaintiff can meet 

the burden of persuasion. To survive summary judgment, the plaintiff must produce 

enough evidence to “support a prima facie case and to rebut, but not to disprove, the 

defendant’s proffered rationale.” Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 

2012) (citation removed). 

C. Pretext

We next turn to whether Harris has shown that the City’s justifications are 

pretextual. Summary judgment may be inappropriate if the plaintiff rebuts the 

employer’s proffered reasons. The prima facie case and showing of pretext alone could 

present a genuine issue of material fact for the jury because “[p]roof that the 

defendant’s explanation is unworthy of credence is simply one form of circumstantial 

evidence that is probative of intentional discrimination, and it may be quite 

persuasive.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).

But this is not always the case. If the plaintiff “created only a weak issue of 

fact as to whether the employer’s reason was untrue and there was abundant and 

uncontroverted independent evidence that no discrimination had occurred,” then 

summary judgment is appropriate. Griffin, 689 F.3d at 594 (quoting Reeves, 530 U.S. 

at 148). And even if the plaintiff shows pretext, summary judgment is warranted if 
Case No. 19-4101, Harris v. City of Akron

8

“the record conclusively revealed some other, nondiscriminatory reason for the 

employer’s decision.” Reeves, 530 U.S. at 148. This is because finding “pretext for 

discrimination” requires not only that the reasons are pretextual, but also that actual 

discrimination was the true motive. See Hicks, 509 U.S. at 516–19. In either case, 

“the moving party has the right to judgment without the expense of a trial when there 

are no issues of fact left for the trier of fact to determine.” Ackerman v. Diamond 

Shamrock Corp., 670 F.2d 66, 69 (6th Cir. 1982) (citing First Nat’l Bank of Ariz. v. 

Cities Serv. Co., 391 U.S. 253, 284–88 (1968).

A plaintiff can expose an employer’s proffered motives as pretext in three ways. 

The first is that the reasons “had no basis in fact,” such as reasons that are purely 

concocted and conflict with the facts in the record. Ondricko v. MGM Grand Detroit, 

LLC, 689 F.3d 642, 654 (6th Cir. 2012) (quoting Dubey v. Stroh Brewery Co., 185 Mich. 

App. 561, 565 (1990)). The second is when the reasons were “not the actual factors 

motivating the decision,” as when an employer cites a facially valid reason as a mere 

coverup for its true discriminatory motives. Id. Finally, the reasons may be pretextual 

if they are “jointly insufficient to justify the decision.” Id. We do not apply this test so 

rigidly as to obscure the ultimate question of pretext. See Davis v. Cintas Corp., 

717 F.3d 476, 492 (6th Cir. 2013). And to make the showing of pretext, the plaintiff 

must produce “sufficient evidence from which the jury could reasonably reject the 

defendants’ explanation and infer that the defendants intentionally discriminated 

against him.” Upshaw, 576 F.3d at 586 (alterations omitted) (quoting Johnson v. 

Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003)). 
Case No. 19-4101, Harris v. City of Akron

9

Harris’ first claim—that Hodas was not really more qualified than she was and 

that the City chose him only because the alternative was a black woman—challenges

the factual basis of the City’s decision. Because this challenge pertains to the 

candidates’ relative qualifications, Harris presents a factual dispute worthy of trial 

only if the evidence shows that “either (1) the plaintiff was a plainly superior 

candidate, such that no reasonable employer would have chosen the latter applicant 

over the former, or (2) plaintiff was as qualified as if not better qualified than the 

successful applicant, and the record contains other probative evidence of 

discrimination.” Rachells v. Cingular Wireless Emp. Servs., LLC, 732 F.3d 652, 668 

(6th Cir. 2013) (internal quotation marks removed) (quoting Bartlett v. Gates, 421 F. 

App’x 485, 490 (6th Cir. 2010)). 

Nothing in the record suggests that Harris is a more qualified candidate. She 

does not dispute that her score on the exam was lower than Hodas’ score and that he 

had relevant experience for the position that the City sought to fill. And some of 

Harris’ performance reviews from her temporary position with the City were 

mediocre or negative, not unfailingly positive. Even if Harris were as qualified as 

Hodas, she would need “probative evidence of discrimination.” Rachells, 732 F.3d at 

668. This element is missing. The fact that the City had rejected Hodas in the past 

for other positions does not suffice. His prior rejections by separate divisions despite 

his high scores do not make those scores irrelevant to the decision of the City, through 

a different division, to eventually hire him.
Case No. 19-4101, Harris v. City of Akron

10

Harris’ second argument—that the interview was subjective and perfunctory, 

and that the City officials had already chosen another candidate—does not survive

summary judgment either. In some cases, preselection of a candidate can support a 

finding of pretext. Stokes v. Detroit Pub. Schs., 807 F. App’x 493, 503 (6th Cir. 2020)

(citing Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986)). But preselection 

based on qualifications creates no Title VII problem. See Goostree, 796 F.2d at 861. 

Even if the City’s interviewer said that he already had someone he wanted to hire, 

Harris has offered no evidence that the preselection predated the interviewer’s 

knowledge of Hodas’ qualifications, which would be permissible grounds for 

preselection. In fact, she submitted no evidence that the allegedly preselected 

candidate even was Hodas, rather than someone else who was ultimately not hired

because he “did not work overtime.”

Harris correctly notes that “subjective evaluation processes” can be a cover for 

discrimination and call for “close scrutiny” at times. Grano v. Dep’t of Dev. of City of 

Columbus, 699 F.2d 836, 837 (6th Cir. 1983). But the process here was not all 

subjective. The City used the test scores to determine who to interview, and it would 

be reasonable to also use them for the ultimate hiring decision. What’s more, using 

subjective criteria is “not illegal per se.” Id. (affirming judgment for the defendant 

employer). Without more evidence than the subjectivity of the evaluation, a plaintiff 

does not raise a genuine issue of fact over pretext. 

Finally, Harris’ argument that adding the fourth applicant was wrongful also 

does not tend to show any of the three pretext indicators. She introduced no evidence 
Case No. 19-4101, Harris v. City of Akron

11

that the City had deviated from its policy. The City explained, in the record, that it

added the “fourth” candidate to replace the dropped candidate and abide by the Rule 

of Three. 

Only Harris’ subjective belief that the interviewers acted for discriminatory 

reasons could turn the alleged actions here into a violation of Title VII. “Mere 

conjecture that the employer’s explanation is a pretext for intentional discrimination 

is an insufficient basis for denial of summary judgment. A court may not reject an 

employer’s explanation of its action unless there is sufficient basis in the evidence for 

doing so.” Upshaw, 576 F.3d at 587 (quoting Brennan v. Tractor Supply Co., 237 F. 

App’x 9, 19–20 (6th Cir. 2007) (cleaned up)). Because Harris fails to show pretext, we 

affirm the summary judgment. 

Conclusion

Harris cannot show an issue of material fact that merits a jury trial. The City 

chose the second-place applicant over the seventh-place applicant. Harris gives no 

evidence that the choice was racially motivated. She is not so plainly superior to 

Hodas as to rebut the factual basis behind the City’s reasons. She has presented no

supporting evidence that tends to show that the facts the City asserts were not its

true motivation. And all the facts taken in a light most favorable to her do not carry 

an inference of discrimination. Thus, we AFFIRM.