1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0401P (6th C ir.) File Name: 03a04 01p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
C AROLYN C ARTER ,

Plaintiff- Appellant

,

v.

U NIVERSITY O F T OLEDO , Defendant-Appellee. X

- - - -
> , - - N 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

Befor e: KEI TH, DAUG

HTREY, a

nd GI LMAN , Circuit Judges.

_________________ COUNSEL

ARGUED: John D. Franklin, LAW OFFICES OF JOHN D. FRA NKLIN & ASSOCI

ATES, Tole do, Ohio, f

or Appel lant. Ch er yl F. Wolff, SPENGLER NATHANSON, Toledo, Ohio, for A ppel lee. ON BRI EF: John D. Franklin, LAW OFFICES OF JOHN D. FR ANK LI N & ASSOCI

ATES, Toledo, Ohi o, for Appell ant. Cheryl F. Wolff, Theodore M. 2 Carter v. University of Toledo No. 02-3842

Rowen, SPENGLER NATHANSON, To led o, Ohio, for Appellee.

_________________

OPINION

_________________ RONA LD LEE GIL MA N, Ci rc ui t J ud ge . D r. Ca ro lyn Carter, who is African-American, brou gh t suit against her former employer, the Unive

rsity of Toledo, alleg

ing that the Universi ty failed to renew her contract as a visiting professor because of her r

ace. Th e dist

rict c ourt granted the University’smotion for

summary judgment, concluding that Car ter had failed to show any direct evidenc e o f discrimination and had also failed to establish that the le gi timate, nondiscr

iminatory reasons given b y th e University for not renewing her

contract were a

pretext to disguise racial discriminati on. For the reasons set forth below, we REVERSE the judgment of the district

court and REMAND for further proceedings c onsistent with this opinion.

I. BACKGROUND

T he U niversity of Toledo hired Ca rter in January of 1996
as an Assistant Professor of Curriculum and Instr uction in the University’sCollege of Education. Carter’s assistant profess orship was a

tenure-track faculty

position. In October of 1996, the Unive rsity’s Personnel Committee recog nized Ca rter as having shown “good prog ress in her teach ing
, profess ion al activities and service.” The Personnel Committee unanimous ly r ecommen ded that h

er fac ulty appointment

be renewed. Prof

esso r James R. Gress, the chairman of Carter’s department, echoed the C ommittee’s sentiment s in his supp ort for Ca rter’s r eappoint ment.
As a result of these favorable r ecomme ndations, the Universi ty renewe d Carter ’s appoin tment for two years a

nd awarded her a merit pay

increa se. Carter, however,No. 02-3842 Carter v. University of Toledo 3

voluntar ily resigned from her

tenure-track faculty

position in May of 1997 to take an administrative position in the Jackson, Michigan school dist rict. She left the University in July of 1997 afte r teach ing the f irst of the summer sc

hool sessi ons.
D u e to anothe

r chang e in car

eer pla ns, Carte r returned to the University of

Toledo a s a

visiting faculty membe

r for the 1999-2000 academic y

ear. Dr. Charlene Czerniak, who was thenInterim Dean of the Colleg e o f Education, extended Carter an offer for the visiting professorship i n th e Educational Administra tion and Sup ervision

(EDAS) program in th e Coll ege of E ducation’s Department of Foundations and Le a dership. Carter accepted the appointment

in the EDAS program, as did three other visiting profess ors—L ouis Barsi, B renda Lanclos, a nd Richar

d St. John—who were all Caucasian.

T he University did not renew Ca rter’s visiting-professor app ointmentaf

te r t he 19 99 -2 00 0 a ca de mi c ye ar . In Ju ly o f 2000, Carter sent an e-mail message t o Czerniak inquiring about the renewa l of her c ontract

with the University for

the following yea

r. C zerniak responded that the University had met its hiri

ng nee ds for the

ye ar and w ould

notbe extending Carter’ s appointm ent.
Carte r was not the only visiting profe ssor whose contract
was not renewed for the 2000-2001 acade mic year. Neithe r St. John, who lik

e Carter was teac hing in th e EDAS pr

ogram, nor Mary Anne

Stibbe, a visiting professor in the College of Education’ s Department of Curriculum and Psy chological Studies, were reappointed for 2000-2001. Both St. John and Stibbe are Caucasian.

Barsi and Lanc los, the other two EDAS visiting p rofessors, were rehired for the following acade mic year, but

not in the EDAS program. Three

new visiting professors were hired in the E DAS program for the 2000-2001 acade mic year. One was Bunk Adams, who is African-American, a nd the other 4 Carter v. University of Toledo No. 02-3842

two were Sand ra McKin ley and Robin Ra

yf ield, both Caucasian.

When she had not heard any thing about the renewal of her visiting professorship, Carter co ntacted Dr. Earl Murry , the University’sVice Provo st . Murry ’s duties a s Vice Provost included acting as chief negotiator f or the faculty’ s collective bargaining agree

me nts, coordinating faculty rec ruiti ng, hiring
, training, and orientation, advising the Provost on tenure and promotion s, reviewing salary matters, and ensuring compliance with

affirmative action requirements. According to Carter, Murry

said that he would in

vestiga te the matter

and get back to her. When Murry did n ot pr omptly get in touch with Carter, she ca lle d him back to ask whether he had any informat ion about t

he rene wal of he r contra ct. Murry told Ca rte r that he had not ye

t discussed the issue with Czerniak, and then, accord ing to Carter, volunteered that “[Czerniak] is trying to whitewa sh the college of education and I am not going to let her

do this.” Carter also asserts that Murry “told me that [Czern i ak] was trying to g et rid of the black profess ors 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 ma

king an y of these sta tements.
Carter sued the University of Tole do in June of 2001. She alleged that the U

niversity discriminated ag ainst her because of her race in violation of 42 U.S.C. §§ 2000(e)-2000(e)-17 (TitleVII

), 42 U.S.C. § 1981 , and Ohio Revised Code § 4112.02 and § 4112.99. Carter also claimed tha t t he Universi ty subj ected her to a racially hostile work environment

in violation of Ti tle VII and Ohio law. The Universi ty moved for

summary judgmen t, arguing that Carter had failed to present either direct or circumstantial evidence of racial discrimination, and asserting that her hosti le workNo. 02-3842 Carter v. University of Toledo 5

environment claim s were wi thout meri

t becaus e she had not present ed any evidenc e support

ing thes e claims.

InJune of 2002, the district court granted the University ’s motion for summa

ry judgmen t. Carter filed a ti mely appeal. Inher briefs on appeal, however, Carter doe s not address the districtcourt’s rulingon her cl aims of a r acially hostile work environment. We therefor e consider t hose arguments waived. See Farm Labor

Org. Comm . v. Ohio S

tate Highway Patrol
, 308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is well established that an issu e not rai sed in a party’ s briefs may be deemed waived.”).

II. ANALY SIS

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. 20 02) . 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 judgme

nt, the districtcourt

must construe all reasonable inference s in favor of the nonmoving party

. Ma tsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). The cent ral issue is “ whether the evidence presents a suff icient disagreement to require

submission to a jury

or wheth er it is
so one-sided

that one party must preva il as a matter of

law.” Anderson v. Liberty Lob by, I nc. , 477 U.S. 242, 251-52 (1986).

B. Direct evidence of discrimination

We shall con sider Car ter’s f ede ral and state-law discrimination claims under the Title VII

framework

because Ohio’s requirements are the same a s und er federal law. See Ohio Civil Rights Comm’n v. Ingram , 630 N.E.2d 669, 67 4 (Oh io 1994). To establish a Title VII employment 6 Carter v. University of Toledo No. 02-3842

discrimination cl aim, C arter was required to either “pre sent direct evidence of discrimination or introduce circumstantial evidence that w oul d allow an inference of discriminatory treatm ent.” Johnson v. Kroger Co. , 319 F.3d 858, 864-65 (6th Cir. 2003). C arter ar gues tha t the alle ged co mments made by Murry constitute

direct evidence of discrimination. She points to three comments purpor tedly made by

him: (1) that Czern

iak was “ try ing to wh it ewas h the College of Education” faculty, (2)

that Murr

y w as struggling with Czerniak to appoint

African-American professors, a nd (3) tha t “the decision-makers at

the College of Education are a bunch of racists.”

The districtcourt began

its analysis by

considering whether
or not Carter would be allowed to tes tify as t o these comments

allegedly

made by Murry . We do not need to address this evide

ntia ry is sue with regard to our analy sis of the dire ct -eviden

ce arg ument, how ever, be cause e ven if Murry’s comments are admissible as nonhearsay , they do not constitute direct e vidence of discr imination a

gainst Cart er under co ntrolling Sixth Circuit precede

nt.
This court has held that comments made b y in div iduals who are not involved in the decision -ma king pro cess regarding the plaintiff’s employment do not constitute direct evidence of discrimination. See Hopson v. DaimlerChrysler Corp., 306 F.3d 4 27, 433 (6 th Cir. 2002 ) (holdin g that a company manage r’s opinion that “r

ace wa s a fa ctor” in the company’s

decision not to promote the plaintiff was not direct evidence for purposes of the plaintiff’sdiscrimination claim because the manager ha d “ no involvement in the decisionmaking process

with resp ect to the particular jobs at issue”). Murry was not a decision-maker with regard to the renewal of C arter’s visiting professorship. His statements therefor e cannot be considered direct evidence of ra cial discrimination against Carter.No. 02-3842 Carter v. University of Toledo 7

C. Circumstantial evidence

Where a plaintiff fails to pre sent direct evidence of discrimination, the burden- shiftin g framework f

irst artic ulate d in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and re fined by Texas Department of Community Affairs v. Burdine
, 450 U.S. 248 (1981), applies. Johnson , 319 F.3d at 865-66. The plain

tiff must f irst present a prima f acie ca se of discrimination. Id. at 866. Estab l ishing a prima fa cie cas e creates a rebuttable presumption of discrimination , andthe burden then shifts

to the defendant to articulate a legitimate, nondiscriminatory

r eason for taking the challeng ed employment

action. Id. If the defenda

ntsatisfie s this burden, the plaintiff “must then prove that the proffered rea son was actually a pretext to hide unla wful discrimi nation .” Id. (internal citation omitted).

To establish

a prima facie case of

discrimination, a plaintiff must show that (1) she is a member of a protec ted gr oup, (2) she was s

ubject to an adve rse emp loymen

t decision, (3) she was qualified for the pos ition, and (4) she was replaced by a person ou

tside of the protected class. Kline v. Tenne ssee Valley Auth. , 128 F.3d 337, 349 (6th Cir. 19 97)

. The University does not dispute that Carter could establish a prima facie case of race

discrimination.

Inresponse, however, the University offe red the following “legitimate, nondiscr

iminatory reaso n s” for not retaining Carter as a visiting professor:

1. Carter

did not app ly f

or a reg ular ten ure tra ck facu lty position in the EDAS prog ram when one was advertised in 2000.

2. Carter, whose regional educational experi enc e was based upon

her wor k in Michig an, did

not have the appropr iate Ohio connec ti ons to aid i n Univer sity recrui ting. 8 Carter v. University of Toledo No. 02-3842

3. Carter

spent appr oximat ely half of he r time in the 1999 -20 00 academic y

ear providing consulting service s to the oper

ators of charte r schools in Detroit.

4. Carter

was occasionally

unavaila ble to students due to her charter sc

hool acti vities.

The burden thus shifted bac k to Carter to show that the University’sr easo ns were pretextua

l. St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 508 (1993). Determini n g whether the reasons proffered by

an employer a

re pretextual requires a heightened examination of “the specific proofs and rebutta ls of discriminatory motiva tion the parties have introduced.” Id. at 516. To demonstrate pretext, a pl ai ntiff may show that the defendant’s proffer ed reas o n “(1) has no basis in fact, (2) did not actually motivate the def

en dant’s challen ged

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 arg uments as to why the University ’s proffered reasons for not renewing her c ont r act “did not act ually motivate the defendant’s challenged c ondu ct.” See id

. First, sh e contends that Mu rry’s a lleged comments concerning the “bunch of racists” at t he University and Czerniak’ s purported attempt to “whitewash the faculty ” show that the above reasons were pretextua l. Second, Carter points out that two similarly situated Caucasian visiting prof essors in the EDAS program had their contracts re newed.

Carter ’s stronger argument is that Murry ’s alleged comments

demonstr ate that t he University’s proffer ed reasons did not actually mot

ivate its conduct. To analyze Carte r’s argument on this poin

t, we must decide whether Carter would be allowed to testify at trial re garding Murry ’s alleged comments. If thecomme nts are deemed to be hearsay , then the evidence could not

be consider

ed on summa

ry judgmen t. See Jacklyn v. Schering-Plough Healthcare Prods. SalesNo. 02-3842 Carter v. University of Toledo 9

Corp. , 176 F.3d

921, 927 (6th Cir. 1999) (“Hearsay evidence may notbe considered on

summary judgme

nt.”). Whether the proffered evidence is hea rsay 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

depos i tion were admissible as nonhearsay

under Rule 801(d)(2)(D) of the Feder al Rules of Evidence. This rule provides, in relevan t part, tha t a “statement

is not hearsay if . . . [t]he stateme nt is offered agains ta party a

nd is . . . a statement

by the party’s a

gent or servant concerning a matter within the scope of the agency or employ ment, made duringthe existence of the relationship.” Alth ough the district court conclud e d that the alleged comments

would be admissible as non hea rsay, it rea soned that the purported remarks were too isolated to show pretext
on th e p ar t o f t he Un iv er si ty.
The University defe

nds the district court’s ba sis fo r di sc ou nt in g t he pr of

fe re d t es ti mo ny, but also argues that the alleged comments d

o not satis fy

the requ irements of Rule 801(d)(2)(D ) becau se “[t]he record is clear that Murry had nothing to do with th e Colleg e of Educ ation’s su bstanti v e decisions regarding the hiring and retention of visiting professors.” Its pos ition a ppears t o be that only

statemen ts mad e by declar

ants who are direct decision-maker s concer nin g the adverse employ ment action at issue can qualify as nonhea

rsay under

Rule 801(d)(2)(D).

The Universi

ty c ites Hill

v. Spiegel, Inc. , 708 F.2d

233 (6th Cir. 1983), to suppor t its argument. In Hill , the court disc ussed the ap plica tion of Rul e 801( d)(2)( D) in a n age discrimination case. Spiegel, the well-known mail order
co mp an y, had terminated Emery Hill, wh o was 56 y

ears old at the time and a regional manager

of Spiegel’s catalog-orde r division. In appealing

an adverse

jury verdict agains t it, Spiegel argued that the admission of testimony given by Matthew Bake r 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 ha d with

other Spiegel employ

ees about Hill’s t e rmination. According to Baker, thre e Spiegel employ ees told him that Hill ha d been discharged beca use of his age. The court he ld that “th ere was no basis for finding that the statemen ts of thesedeclarants concerned ‘a ma tter within the scop e of [their] agency ,’” reasoning that there was no evidence that any of the de clarant s were involved in the decision to terminate Hill. Id. at 237 (alteration in original).

At first glance the ho lding appears to support the University’sargument that only comments by

direct decisionmakers can qua

lify as nonhe arsa

y u nder Rule 801(d)(2)(D). T he court’s analy sis, however, went bey ond the simpl e question of whether the declarants were direct deci si onmake rs. I t looked to the scope of each declarant’s employment

and noted

that ther

e was one

“about w

hose du ties a nd responsibilities [the plaintiff] testified he was uncertain,” a second who became a reg ional manager of Spiegel’s c a talog order division after Hill was discharged, and a third whose jo b w as unrelated to Hill’s. Id. The court concluded that “[t]he mere fact tha t each of these me n was a ‘manager’ within the

expansive

Spiege l o rganiza

tion is cl early insufficient to establish that matters bearing upon Hill’s discharge were within the scope of their employment.” Id. Whether

a stateme nt qualifi es as nonhearsay under Rul e 801(d)(2)(D), ther efore, goes be yon d simply determin ing if the declarant is a direct decision-maker with re gard to t he adverse employ

ment action.

I n addit ion to Hill , two other Sixth Circuit cases support this broader reading

of Rule 801(d)(2)(D). This court rejected
anemployer’s

argum ent that statements made by someone who wa s not a direc t decision -maker were ir releva nt in Johnson v. Kroger

Co ., 31 9 F.3d 858, 868 (6th Cir. 2003). The court re asoned that “[a]ltho ugh re marks ma

de by an individual who has no author ity over the cha llenged employment actio n are not indicativ e of discriminator y in tent, the statements of manager ia l-level employee s who have the ability to influence a personnel decision are re levant .” Id.No. 02-3842 Carter v. University of Toledo 11

A nd in Jacklyn v. Schering-Plough Healthcare Produc t s Sales Corp. , 176 F.3d 921, 928 (6th Cir. 1 999), this court considered

whether the decl arant wa s “involve d in any of the critical apprais als of [pla

intif f’s] performance that precede d her leaving work,”—not wh ethe r the declarant was a direct decision -maker

—in determin ing if th e decla

rant ’s remarks qual ified as non hearsa y under Ru le 801 (d)(2) (D). Bei ng a direct decision-maker, of course, constitutes strong proof that
a stateme nt was made within the scope of employ ment, but the “scope o f emp lo ym ent” criterion extends bey ond direct decision -maker s.
We also note that our prior decisions are consistent with the reasoningof the Seventh Circui t inWilliams v. Pharmacia, Inc. , 137 F.3d 944 (7th Cir. 1998), wher e the court rejected the employer’ s argument that

anemployee’s

statement

regarding a par

ticular action of the employer qualifie s as a vi ca rious admission under Rule 801 only if the employ ee-declarant

was involv ed in the decision

making processleading up to the employ er’s act ion. . . . The precise reach of Rule 801(d)(2)(D) i s sometimes difficult to discern, as there has been considerab l e debate about the justification for classify ing various admissions as non-hearsay . We are relucta nt to follow [the employer’s] sugg estion and rea d into the rule
a gener alized pe

rsonal in

volvemen t require

ment, especia lly in li gh t of

the Advisory Committee’s admonition that the freedom which admissions ha v e enjoyed

. . . fromthe restr

ictive inf luences of . . . the rule requiringfirsthand knowledge . . . calls for g ene ro us tr ea tm en t o f t hi s a ve nu e t o a dm is si bi li ty.
Id. at 950 (quotation marks and internal citations omitted).

The district court distinguished Hill from the i n stant case by reasoning that “[a]ltho ugh Mu rry did not have dire ct authority to decide whet

her C arter’s appointment was renewed, his oversight of the affirmative action process at the 12 Carter v. University of Toledo No. 02-3842

Universi ty places his statements concerning the rac ial composition of the workforce within the am bit o f his authority.”

Indeed, M

ur ry testified that he e

nsures that the deans co mp ly w ith affirmative action requirements when hiring fa cu lt y. We agre e with the district court’s analy sis on this point and conclude that becau se Carte r has shown that Murry’s comments were within

the scope of his emp loy

ment, Murry’s alleged comme nts are admissible nonhearsay . Fed. R. Evid. 801(d)(2)(D).

We are thus l eft with the question of whether the district court erred in discounting

Murry’s alleg ed

comments b ecause they were “isolated.” See, e.g., Ercegovich v. Goodyear Tire & Rubber Co. , 154 F .3 d 344, 355 (6th Cir. 1998) (“Isolated and ambiguo us commen

ts are too abst rac t, in additi on to being irrelevant and prejudicial, to suppor t a find ing of a ge discrimination.”) (inte rn al quotation marks and citations omitted). The d ist rict cou rt gave no explana

tion for it s conclusionon this poin

t, and we respec tfully

disagree that

the alleged comments can be so categorized. They were allege dly made in direc t respons e to Carte r’s inquirie s as to why she
was not rehired. Under the se circumstances, we find no justification to regard them as isolated.

Insum, we conclude tha

t a genuine issue of material fact exists as to whether Carter can show pretext on the part of the Un iv er si ty. We recognize that, but for Murry ’s alleged comments, Carter’ s claims would not likely survive summary judg m ent. But if the jury we re to believe that Murry

in fact made the remark s attribut ed to him, then they might find that the University’sproffe

red rea sons “did n

ot actua lly m otivate the defendant’s challenged conduc t.” Seay v. Tennessee Valle yAuth. , 339 F.3d

454, 463 ( 6th Cir. 200 3). This is a credibi lity

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 Universi ty’ s motion for

summary judgmen t.No. 02-3842 Carter v. University of Toledo 13

III. CONCL USION

For all of th e reasons set forth above, we REVERSE the d istr ict court’s grant of summary judgment in favor of the Universi ty and REMAND for further proceedings c onsistent with this opinion.