NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0127n.06
No. 17-1818 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT TRESHA K. NEFF, Plaintiff-Appellant,

v. CITY OF EAST LANSING, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

Before: SILER and LARSEN, Circu it Judges; BLACK, District Judge. * LARSEN, Circuit Judge. Contending that she was overlooked for promotions and denied training, tuition reimbursement, and favorable assi gnments and scheduling because of her sex, plaintiff Tresha Neff sued he r employer, defendant City of East Lansing, alleging sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et
seq. , and the Michigan Elliott-Larsen Civil Ri ghts Act (ELCRA), Mich. Comp. Laws § 37.2102 et seq . The district court grante d summary judgment to the City on all claims. We AFFIRM.
I. The City has employed Neff as a police officer in the East Lansing Police Department (ELPD) since 1994. When Neff initi ated this case in 2016, she held the rank of sergeant, having last been promoted in 2011. While the case was pending below, the City promoted Neff to

* The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio, sitting by designation.No. 17-1818 Neff v. City of East Lansing

-2- lieutenant. Neff claims that throughout her employment, the City denied her training opportunities, tuition reimbursement, and favo rable scheduling and assignments, while it afforded those perks to male employees. Neff al so claims that, prior to her promotions to sergeant and lieutenant, the City had on numerous occasions passed her over for promotions in favor of male candidates. The only promotion decisions before this Court, however, occu rred in 2013 and 2014, when the City promoted Officer Stephen Gonz alez and Officer Scot Sexton, respectively, over Neff and other candidates. 1 Police Chief Juli Liebler, the decision-maker for both promotion decisions, explained in a swor n declaration that she considered both “measurable” and “immeasurable” qualifications wh en deciding whom to promote. 2 She stated, “‘Measurable’ qualifications are qualifications I can see on a re sume, like a candidate’s education or years of experience; or qualifications I can see in a perf ormance evaluation, like competency.” On the other hand, “‘[i]mmeasurable’ quali fications are qualifications that are not so easy to see on paper, and they include qualifications like bei ng a good leader, setting a good example for others, making sacrifices for the ELPD, being proactive, doing more than just the minimum, working well with peers, and earning the respect of your co-workers.” Liebler also stated that most candidates had similar “measur able” qualifications, so it was often the “immeasurable” qualifications that distinguished the candida tes. She believed that “‘immeasurable’

1 The district court concluded that Neff’s Title VII claims for denial of promotions occurring prior to January 8, 2015, and all such ELCRA cl aims occurring prior to January 25, 2013, were time-barred, and that any argum ent related to a promotion in 2016 was not before the court because Neff did not include the promotion in her complaint. On appeal, Neff does not challenge these conclusions and, as such, has forfeited any argument to the contrary. See Kovacic v. Cuyahoga Cty. Dep’t of Children & Family Servs. , 606 F.3d 301, 307 (6th Cir. 2010).

2 Under the parties’ collective bargaining agreement, she had discretion to make promotions based on “length of service, quality of service and supervisory potential.”No. 17-1818 Neff v. City of East Lansing

-3- qualifications, like leadership, respect of co-worke rs, being engaged in a nd willing to sacrifice for the job, become more important in lieu tenant and captain promotions, because those command officers perform primarily supervisory and administrative duties, and less actual police work.” Liebler explained that when she promoted Gonzalez over Neff and other candidates in 2013, most candidates had similar “measurable” qua lifications, but that Gonzalez had a slight advantage in terms of education because he al ready had one master’s degree and was working on another. Moreover, she believed that in term s of “immeasurable” quali fications, Gonzalez was the most qualified: “he was a good supervisor, was very level-headed, made good job decisions, was supportive of the administration, and was very engaged in the job.” Informal feedback from other officers told Liebler that Gonzalez was well -respected by his co-workers and subordinates. Liebler “decided that Mr. Gonzalez’s superior le adership skills outweighed the other candidates’ seniority and experience, because it was his leadership skills that would make him a good lieutenant, not having a few more years of policing experience.” For the 2014 promotion of Sexton over Neff a nd other candidates, all candidates again had similar “measurable” qualifications, but it was the “immeasurable” qualifications that distinguished Sexton from the re st. Based on her observations of Sexton’s performance as a supervisor, Liebler believed that he “was a good supervisor that was committed and engaged in the job, regularly mentored his subordinates , and was good at follow ing through on tasks and being proactive, sometimes solving problems before he was even asked to do so.” She further stated that he made sacrifices for the ELP D and set a good example by working at undesirable times and working often.No. 17-1818 Neff v. City of East Lansing

-4- Neff had not displayed similar leadership qualities, according to Liebler. Liebler explained that Neff “would only schedule herself in a way that benefitted her, not the ELPD” by “scheduling herself for just the bare minimum, while also taking advantage of overtime and holiday pay opportunities [and] leaving other officers to work the less desirable times.” Liebler concluded that Neff set a poor example for other officers. 3 Liebler also cited Neff’s lack of communication and follow-through as examples of her deficient leadership and supervisory skills. Finally, Liebler noted that, when deci ding whom to promote in 2014, she asked captains and lieutenants for their views of the candidates; the three who re plied ranked Neff as the least qualified for promotion. Nonetheless, believing that the City’s acti ons against her were based on her sex, not merit, Neff sued the City, raising claims of sex- based disparate treatment in violation of Title VII and the ELCRA. She also raised a claim of sex-ba sed disparate impact in violation of Title VII, asserting that the City’s promotion process syst ematically disfavored women. The City moved for summary judgment on all claims. The district court granted the City’s motion and dismissed the case. Neff appealed to this Court.
II. Only Neff’s disparate-treatment claim for failure to promote is properly before us. 4 That claim is based not on direct evid ence of sex discrimination, but circumstantial evidence, which

3 Chief Jeff Murphy, who took over as chief after Li ebler, likewise had c oncerns that Neff set a “terrible example” for younger officers by her self ish scheduling of vacation time and holiday hours.

4 The district court concluded that Neff had forfeited any argument that the City was not entitled to summary judgment on her disp arate-treatment claims based on denial of training, tuition reimbursement, and favorable scheduling and assi gnments; she had forfeited these claims by not addressing, or only offering perfunctory arguments as to how, she was tr eated differently than similarly situated male employees, a nece ssary predicate to Neff establishing a prima facie caseNo. 17-1818 Neff v. City of East Lansing

-5- means we proceed under the McDonnell Douglas–Burdine test. See Johnson , 215 F.3d at 572. 5 Under that test, Neff “bears the burden of establishing a prima facie claim of discrimination.” White v. Columbus Metro. Hous. Auth. , 429 F.3d 232, 238 (6th. Cir. 2005). But the City conceded below that Neff could establish a prima facie case of discrimination for failure to promote. The burden then shifted to the City “to proffer a legitimate, non-discriminatory reason for the employment decision at issue.” Id. It did: that Neff was not the most qualified candidate. Because the City offered a legitimate, nondiscriminatory reason, Neff bears the burden of establishing that the City’s “state d reason is mere pretext for its true discriminatory motives.” Id. Neff may do so “(1) by showing that the pro ffered reason had no basis in fact; (2) by showing that the proffered reason did not actually motivate the employer’s conduct[;] or (3) by showing that the proffered reason was insuffici ent to warrant the challenged conduct.” Id . at 245. Neff argues that the City’s proffered r eason—that Neff was not the most qualified candidate—has no basis in fact and was insuffi cient to warrant choosin g Gonzalez and Sexton over her. Neff claims that she was the more qualified candidate in both instances in terms of

of discrimination. See Johnson v. Univ. of Cincinnati , 215 F.3d 561, 572–73 (6th Cir. 2000). On appeal, Neff does not challenge the court’s conclu sion that she forfeited these claims, and again fails to address, in anything be yond cursory statements, the City’s argument that she has failed to show that the male employees were similarly situated to her. She thus has forfeited these claims. Kovacic , 606 F.3d at 307. The court also found that Neff had forf eited any argument regarding her disparate-impact claim. Neff now argues th at this was error, c ontending that it was the court’s duty to inquire into the re cord to determine whether genuine issues of fact remained, even absent argument on her part. It was not. See Wardle v. Lexington-Fayette Urban Cty. Gov’t , 45 F. App’x 505, 509 (6th Cir. 2002) (per curiam) (“[A ] district court is not required to search the record to determine whether genuine issues of ma terial fact exist when the non-moving party has failed to point them out.”); Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1479–80 (6th Cir. 1989) (“The trial court no longer has the duty to search the entire r ecord to establish that it is bereft of a genuine issue of material fact.”).

5 ELCRA and Title VII claims are assessed under the same evidentiary framework. See Ondricko v. MGM Grand Detroit, LLC , 689 F.3d 642, 652 (6th Cir. 2012); Sniecinski v. Blue Cross & Blue Shield of Mich ., 666 N.W.2d 186, 193 (Mich. 2003).No. 17-1818 Neff v. City of East Lansing

-6- experience, seniority, and traini ng. “Evidence that the plaint iff was more qualified than the successful applicant can in some circumstances be sufficient to raise a genui ne issue of material fact that the employer’s proffere d explanation is pretextual.” Risch v. Royal Oak Police Dep’t , 581 F.3d 383, 391 (6th Cir. 2009). But in cases such as this, where “t here is little or no other probative evidence of discrimination, to surviv e summary judgment the rejected applicant’s qualifications must be so significantly better than the successful applicant’s qualifications that no reasonable employer would have chosen th e latter applicant over the former.” Bender v. Hecht’s Dep’t Stores , 455 F.3d 612, 627 (6th Cir. 2006). Here, Neff’s only evidence in support of her cl aim is that she has been with the ELPD approximately three years longer than Gonzalez, and approxima tely five years longer than Sexton, and that she took more training classes th an either candidate. This is not enough for Neff to show that the City’s legitimate, nondiscriminatory reason was a mere pretext for discrimination. Like most employers, the ELPD does not grant promotions solely on the basis of an employee’s length of employment. While Li ebler considered the candidates’ education and experience when making her decisions, she found that the candidates were relatively equal as to those criteria. But, as one would expect when promoting an employee to a leadership position, Liebler also considered the candidates’ leadersh ip skills and ability to work with others. See Browning v. Dep’t of the Army , 436 F.3d 692, 696–97 (6th Cir. 2006) (“[E]mploymentdiscrimination laws do not diminish lawful tr aditional management prerogatives in choosing among qualified candidates, and an employer has great flexibility in choosing a managementlevel employee.” (citations and brackets omitted)). Finding, as described above, that Gonzalez and Sexton were superior to Neff in those areas, Liebler promoted them over Neff.No. 17-1818 Neff v. City of East Lansing

-7- Although Neff does not challenge Liebler’s sworn declaration directly, she criticizes the City’s reliance on Gonzalez’s and Sexton’s “immeasurable” qualific ations over her own superior “measurable” qualifications. This Court has recognized “that su bjective evaluation processes intended to recognize merit provide rea dy mechanisms for discrimination.” Grano v. Dep’t of
Dev. , 699 F.2d 836, 837 (6th Cir. 1983). “[T]he legi timacy of the articulated reason for the employment decision is subject to particularly close scrutiny where the evaluation is subjective
. . . .” Id. “The ultimate issue in each case is whethe r the subjective criteria were used to disguise discriminatory action.” Id. But Neff gives the Court little with which to closely scrutinize Liebler’s decisions. She claims that the City cannot articulate what “immeasurable” qualities Gonzalez and Sexton possessed but that Neff did not. Yet Liebler, in fact, did just that, by citing concrete examples, including Neff’s self-serving sc heduling decisions and poor ha ndling of prior projects, to establish that Neff lacked leadership skills th at Gonzalez and Sexton po ssessed. Moreover, Neff does not challenge any of Lieb ler’s conclusions regarding th e subjective qualifications as erroneous or false, or otherwise explain how th e criteria were a disguise for discriminatory action. Neff, therefore, has not contradicted the ev idence offered by the City in support of its legitimate, nondiscriminatory reason for the pr omotion decisions—that Neff was not the most qualified candidate. Although we are to look closely at decisions made on the basis of subjective criteria, Neff has not shown that the use of subjective criteria here was a disguise for discrimination. Id. Instead, all that Neff has offered this Court is her own subjective belief that she was more qualified than othe rs who were promoted and that she was discriminated against based on her sex. That is insufficient to s how pretext and overcome a motion for summaryNo. 17-1818 Neff v. City of East Lansing

-8- judgment. 6 See Mitchell v. Toledo Hosp. , 964 F.2d 577, 584–85 (6th Cir. 1992) (concluding that the plaintiff could not establis h pretext based on statements th at were “nothing more than rumors, conclusory allegations and subjective be liefs which are wholly insufficient evidence to establish a claim of discrimination as a matter of law”); see also Briggs v. Potter , 463 F.3d 507, 516 (6th Cir. 2006) (stating that a plaintiff’s subjective beliefs re garding her “qualifications in relation to those of other app licants, without more, cannot sust ain acclaim of discrimination” (citation omitted)). Neff has failed to meet her bur den of showing pretext, and the district court correctly granted summary judgmen t in the City’s favor on her disparate-treatment claim for failure to promote.
* * * We AFFIRM the judgment of the di strict court in favor of the City.

6 For the same reasons, Neff’s “expert report” is unpersuasive. Although the report concludes that it is “highly probable” that Neff was passe d over for Sexton because of her sex, the report offers only the same argument s that Neff does now—that Neff ha d more experience, seniority, and training. Other peculiarities call into ques tion the strength of the report. The report is unsworn. See Pack v. Damon Corp. , 434 F.3d 810, 815 (6th Cir. 2006 ) (“The [expert report] is unsworn and thus is hearsay, which may not be considered on a motion for summary judgment.”). And the report’s author does not explain his qualifications or why any qualifications that he does have render him able to speak to the i ssue of sex discri mination. Nor, for that matter, does Neff offer any such explanation.