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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0401P (6th Cir.)

File Name: 03a0401p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

CAROLYN CARTER,

Plaintiff-Appellant,

v.

UNIVERSITY OF TOLEDO,

Defendant-Appellee.

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No. 02-3842

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 01-07307—David A. Katz, District Judge.

Argued: October 22, 2003

Decided and Filed: November 12, 2003 

Before: KEITH, DAUGHTREY, and GILMAN, Circuit

Judges.

_________________

COUNSEL

ARGUED: John D. Franklin, LAW OFFICES OF JOHN D.

FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant.

Cheryl F. Wolff, SPENGLER NATHANSON, Toledo, Ohio,

for Appellee. ON BRIEF: John D. Franklin, LAW

OFFICES OF JOHN D. FRANKLIN & ASSOCIATES,

Toledo, Ohio, for Appellant. Cheryl F. Wolff, Theodore M.

2 Carter v. University of Toledo No. 02-3842

Rowen, SPENGLER NATHANSON, Toledo, Ohio, for

Appellee.

_________________

OPINION

_________________

RONALD LEE 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

REVERSEthe 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,
No. 02-3842 Carter v. University of Toledo 3

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

4 Carter v. University of Toledo No. 02-3842

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

bargainingagreements, 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. §§ 2000(e)-2000(e)-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
No. 02-3842 Carter v. University of Toledo 5

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 considerthose 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 (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

(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, 630 N.E.2d 669, 674

(Ohio 1994). To establish a Title VII employment

6 Carter v. University of Toledo No. 02-3842

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 decisionmaking 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.
No. 02-3842 Carter v. University of Toledo 7

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 (1973),

and refined by Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981), applies. Johnson, 319 F.3d at

865-66. The plaintiff must first present a prima facie case of

discrimination. Id. at 866. Establishing a prima facie case

creates a rebuttable presumption of discrimination, and the

burden then shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for taking the challenged

employment action. Id. If the defendant satisfies this burden,

the plaintiff “must then prove that the proffered reason was

actually a pretext to hide unlawful discrimination.” Id.

(internal citation omitted).

To establish a prima facie case of discrimination, a plaintiff

must show that (1) she is a member of a protected group,

(2) she was subject to an adverse employment decision,

(3) she was qualified for the position, and (4) she was

replaced by a person outside of the protected class. Kline v.

Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997).

The University does not dispute that Carter could establish a

prima facie case of race discrimination.

In response, however, the University offered the following

“legitimate, nondiscriminatory reasons” for not retaining

Carter as a visiting professor:

1. Carter did not apply for a regular tenure track faculty

position in the EDAS program when one was

advertised in 2000.

2. Carter, whose regional educational experience was

based upon her work in Michigan, did not have the

appropriate Ohio connections to aid in University

recruiting.

8 Carter v. University of Toledo No. 02-3842

3. Carter spent approximately half of her time in the

1999-2000 academic year providing consulting

services to the operators of charter schools in

Detroit.

4. Carter was occasionally unavailable to students due

to her charter school activities.

The burden thus shifted back to Carter to show that the

University’s reasons were pretextual. St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 508 (1993). Determining

whether the reasons proffered by an employer are pretextual

requires a heightened examination of “the specific proofs and

rebuttals of discriminatory motivation the parties have

introduced.” Id. at 516. To demonstrate pretext, a plaintiff

may show that the defendant’s proffered reason “(1) has no

basis in fact, (2) did not actually motivate the defendant’s

challenged conduct, or (3) was insufficient to warrant the

challenged conduct.” Seay v. Tennessee Valley Auth., 339

F.3d 454, 463 (6th Cir. 2003) (internal citations omitted).

Carter puts forth two arguments as to why the University’s

proffered reasons for not renewing her contract “did not

actually motivate the defendant’s challenged conduct.” See id.

First, she contendsthatMurry’s alleged comments concerning

the “bunch of racists” at the University and Czerniak’s

purported attempt to “whitewash the faculty” show that the

above reasons were pretextual. Second, Carter points out that

two similarly situated Caucasian visiting professors in the

EDAS program had their contracts renewed.

Carter’s stronger argument is that Murry’s alleged

comments demonstrate that theUniversity’sproffered reasons

did not actually motivate its conduct. To analyze Carter’s

argument on this point, we must decide whether Carter would

be allowed to testify at trial regarding Murry’s alleged

comments. If the comments are deemed to be hearsay, then

the evidence could not be considered on summary judgment.

See Jacklyn v. Schering-Plough Healthcare Prods. Sales
No. 02-3842 Carter v. University of Toledo 9

Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“Hearsay evidence

may not be considered on summary judgment.”). Whether the

proffered evidence is hearsay under the Federal Rules of

Evidence is a question of law that we review de novo. Id.

The district court found that Murry’s alleged comments as

offered by Carter in her deposition were admissible as

nonhearsay under Rule 801(d)(2)(D) of the Federal Rules of

Evidence. This rule provides, in relevant part, that a

“statement is not hearsay if . . . [t]he statement is offered

against a party and is . . . a statement by the party’s agent or

servant concerning a matter within the scope of the agency or

employment, made during the existence of the relationship.”

Although the district court concluded that the alleged

comments would be admissible as nonhearsay, it reasoned

that the purported remarks were too isolated to show pretext

on the part of the University.

The University defends the district court’s basis for

discounting the proffered testimony, but also argues that the

alleged comments do not satisfy the requirements of Rule

801(d)(2)(D) because “[t]he record is clear that Murry had

nothing to do with the College of Education’s substantive

decisions regarding the hiring and retention of visiting

professors.” Its position appears to be that only statements

made by declarants who are direct decision-makers

concerning the adverse employment action at issue can

qualify as nonhearsay under Rule 801(d)(2)(D).

The University cites Hill v. Spiegel, Inc., 708 F.2d 233 (6th

Cir. 1983), to support its argument. In Hill, the court

discussed the application of Rule 801(d)(2)(D) in an age

discrimination case. Spiegel, the well-known mail order

company, had terminated Emery Hill, who was 56 years old

at the time and a regional manager of Spiegel’s catalog-order

division. In appealing an adverse jury verdict against it,

Spiegel argued that the admission of testimony given by

Matthew Baker was erroneous. Baker, a former district

manager at Spiegel, testified on Hill’s behalf to conversations

10 Carter v. University of Toledo No. 02-3842

that he had had with other Spiegel employees about Hill’s

termination. According to Baker, three Spiegel employees

told him that Hill had been discharged because of his age.

The court held that “there was no basis for finding that the

statements of these declarants concerned ‘a matter within the

scope of [their] agency,’” reasoning that there was no

evidence that any of the declarants were involved in the

decision to terminate Hill. Id. at 237 (alteration in original).

At first glance the holding appears to support the

University’s argument that only comments by direct decisionmakers can qualify as nonhearsay under Rule 801(d)(2)(D).

The court’s analysis, however, went beyond the simple

question of whether the declarants were direct decisionmakers. It looked to the scope of each declarant’s

employment and noted that there was one “about whose

duties and responsibilities [the plaintiff] testified he was

uncertain,” a second who became a regional manager of

Spiegel’s catalog order division after Hill was discharged,

and a third whose job was unrelated to Hill’s. Id. The court

concluded that “[t]he mere fact that each of these men was a

‘manager’ within the expansive Spiegel organization is

clearly insufficient to establish that matters bearing upon

Hill’s discharge were within the scope of their employment.”

Id. Whether a statement qualifies as nonhearsay under Rule

801(d)(2)(D), therefore, goes beyond simply determining if

the declarant is a direct decision-maker with regard to the

adverse employment action.

In addition to Hill, two other Sixth Circuit cases support

this broader reading of Rule 801(d)(2)(D). This court rejected

an employer’s argument that statements made by someone

who was not a direct decision-maker were irrelevant in

Johnson v. Kroger Co., 319 F.3d 858, 868 (6th Cir. 2003).

The court reasoned that “[a]lthough remarks made by an

individual who has no authority over the challenged

employment action are not indicative of discriminatory intent,

the statements of managerial-level employees who have the

ability to influence a personnel decision are relevant.” Id.
No. 02-3842 Carter v. University of Toledo 11

And in Jacklyn v. Schering-Plough Healthcare Products

Sales Corp., 176 F.3d 921, 928 (6th Cir. 1999), this court

considered whether the declarant was “involved in any of the

critical appraisals of [plaintiff’s] performance that preceded

her leaving work,”—not whether the declarant was a direct

decision-maker—in determining if the declarant’s remarks

qualified as nonhearsay under Rule 801(d)(2)(D). Being a

direct decision-maker, of course, constitutes strong proof that

a statement was made within the scope of employment, but

the “scope of employment” criterion extends beyond direct

decision-makers.

We also note that our prior decisions are consistent with the

reasoning of the Seventh Circuit in Williams v. Pharmacia,

Inc., 137 F.3d 944 (7th Cir. 1998), where the court rejected

the employer’s argument that

an employee’s statement regarding a particular action of

the employer qualifies as a vicarious admission under

Rule 801 only if the employee-declarant was involved in

the decisionmaking process leading up to the employer’s

action. . . . The precise reach of Rule 801(d)(2)(D) is

sometimes difficult to discern, as there has been

considerable debate about the justification for classifying

various admissions as non-hearsay. We are reluctant to

follow [the employer’s] suggestion and read into the rule

a generalized personal involvement requirement,

especially in light of the Advisory Committee’s

admonition that the freedom which admissions have

enjoyed . . . from the restrictive influences of . . . the rule

requiring firsthand knowledge . . . calls for generous

treatment of this avenue to admissibility.

Id. at 950 (quotation marks and internal citations omitted).

The district court distinguished Hill from the instant case

by reasoning that “[a]lthough Murry did not have direct

authority to decide whether Carter’s appointment was

renewed, his oversight of the affirmative action process at the

12 Carter v. University of Toledo No. 02-3842

University places his statements concerning the racial

composition of the workforce within the ambit of his

authority.” Indeed, Murry testified that he ensures that the

deans comply with affirmative action requirements when

hiring faculty. We agree with the district court’s analysis on

this point and conclude that because Carter has shown that

Murry’s comments were within the scope of his employment,

Murry’s alleged comments are admissible nonhearsay. Fed.

R. Evid. 801(d)(2)(D).

We are thus left with the question of whether the district

court erred in discounting Murry’s alleged comments because

they were “isolated.” See, e.g., Ercegovich v. Goodyear Tire

& Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998) (“Isolated

and ambiguous comments are too abstract, in addition to

being irrelevant and prejudicial, to support a finding of age

discrimination.”) (internal quotation marks and citations

omitted). The district court gave no explanation for its

conclusion on this point, and we respectfully disagree that the

alleged comments can be so categorized. They were allegedly

made in direct response to Carter’s inquiries as to why she

was not rehired. Under these circumstances, we find no

justification to regard them as isolated.

In sum, we conclude that a genuine issue of material fact

exists as to whether Carter can show pretext on the part of the

University. We recognize that, but for Murry’s alleged

comments, Carter’s claims would not likely survive summary

judgment. But if the jury were to believe that Murry in fact

made the remarks attributed to him, then they might find that

the University’s proffered reasons “did not actually motivate

the defendant’s challenged conduct.” Seay v. Tennessee

Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003). This is a

credibility determination that must be resolved by the

factfinder, not by the court as a matter of law. We therefore

conclude that the district court erred in granting the

University’s motion for summary judgment.
No. 02-3842 Carter v. University of Toledo 13

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the

district court’s grant of summary judgment in favor of the

University and REMAND for further proceedings consistent

with this opinion.