Lawrence E. Anthony, Jr. v. Btr Automotive Sealing Systems, Inc.

*The Honorable William O. Bertelsman, Senior United States District
Judge for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0278P (6th Cir.)
File Name: 03a0278p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LAWRENCE E. ANTHONY, JR.,
Plaintiff-Appellant,
v.
BTR AUTOMOTIVE SEALING
SYSTEMS, INC.
Defendant-Appellee.
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No. 01-6028
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 00-00315—James H. Jarvis, District Judge.
Argued: December 5, 2002
Decided and Filed: August 8, 2003
Before: COLE and CLAY, Circuit Judges;
BERTELSMAN, Senior District Judge.*
2 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
_________________
COUNSEL
ARGUED: Stephen Talbert Hyder, Maryville, Tennessee,
for Appellant. Robert O. Sands, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, Atlanta, Georgia, for
Appellee. ON BRIEF: Stephen Talbert Hyder, Maryville,
Tennessee, for Appellant. Robert O. Sands, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, Atlanta,
Georgia, for Appellee.
BERTELSMAN, D. J., delivered the opinion of the court,
in which CLAY, J., joined. COLE, J. (pp. 20-22), delivered
a separate concurring opinion.
_________________
OPINION
_________________
BERTELSMAN, District Judge. Plaintiff Lawrence E.
Anthony, Jr., appeals the district court’s grant of summary
judgment to defendant on Anthony’s claims for race and age
discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq., 42 U.S.C.
§ 1981, and the Tennessee Human Rights Act. For the
reasons set forth, this court AFFIRMS the district court.
Factual Background
Plaintiff Lawrence E. Anthony, Jr., a black male over the
age of forty, was hired by defendant at the age of nineteen.
Beyond high school, Anthony attended the University of
Tennessee at Martin for approximately one year before his
employment with the defendant. Anthony does not possess
a college degree or Certified Quality Engineer “CQE” status.

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
3
1BTR has been sold and is known now as Metzeler Automo tive
Profile Systems.
2In the extrusion plant after raw compounds and raw materials are
blended together at the mixing plant to form rubber, the rubber compound
is run through an extrusion dye. This subjects the rubber to heat and
pressure. T he final product is primarily door seals.
3The finishing plant is where extruded materials are taken and
molded together, coated, and various secondary operations performed
prior to packaging for shipment to the customer.
4At the district court level Anthony also sought relief for claims of
discrimination for adverse employment actions related to his pay. The
district court found the pay claims were barred for failure to include them
in his EEOC action. Anthony did not appeal this ruling.
Defendant BTR Automotive Sealing Systems, Incorporated
(“BTR”)1 manufactures door seals for new automobiles,
primarily sold to the “Big Three” automobile makers –
General Motors, Ford and Chrysler. BTR has historically had
three operations on site: the mixing plant and the extrusion
plant2 located within one building, and the finishing plant3
located a few yards away. Each of the three operations had
separate laboratories.
Anthony appeals the grant of summary judgment to BTR
on his claims that BTR’s refusal to promote him on four
separate occasions was discriminatory based on his race and
age.4 He also appeals the grant of summary judgment by the
district court four days before trial because by that time he
had already expended money on witness per diem and service
fees for the trial.
Anthony argues that he was a long-time faithful employee
of BTR with a good work record, including never missing a
day of work or being tardy. During his twenty-seven years
4 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
with BTR, he spent twenty-two years in the quality laboratory
under the supervision of Debbie Massey.
Anthony maintains that, early in his employment, BTR’s
then-vice president for technical operations, John McManus,
a graduate from the National College of Polymer Technology
in London, taught Anthony directly from class notebooks.
Anthony contends a jury should have been permitted to hear
how this early experience in Anthony’s employment “set the
tone” for his loyalty and enthusiasm for the company during
his employment and ultimately demonstrates that he was
indeed qualified for the promotions.
The four promotions at issue include: (1) a job given to
Tim Wilham in late 1997; (2) a job given to Mark Ledbetter
in June of 1998 ; (3) a job given to Leann Abston in
December of 1998; and (4) a job given to Rusty Kreyling in
August of 1999. The facts of each promotion follow.
The promotion given to Tim Wilham
In 1997, Debbie Massey, laboratory supervisor of the
extrusion plant and supervisor to Anthony, transferred to the
company’s Rockford, Maryland office. Massey had a
Bachelor of Science degree from the University of Tennessee
with an additional year of education in chemistry and
psychology. In addition to supervising Anthony, Massey
supervised two other employees in the finishing and extrusion
plant laboratories. Anthony had no responsibilities in the
finishing plant. While Anthony was primarily performing lab
tests for the extrusion lines, Massey was covering duties in a
variety of locations, including incoming materials as well as
the finishing plant.
Anthony maintains that he performed all supervisory and
nonsupervisory duties in the laboratory when there was no
supervisor after Massey was transferred. Anthony submitted
his resume to Denny Moore, the human resources manager,

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
5
to apply for Massey’s position. Moore told Anthony that
BTR was not looking to fill the position as a laboratory
supervisor and, instead, wanted to fill it with someone who
was a CQE or who had a technical decree.
The job was given to Tim Wilham, a white male under the
age of forty. He did not have a college degree and was not a
CQE. Wilham began working for BTR as a production
supervisor in December of 1994.
In 1997, Wilham had been assigned to work as a supervisor
in the mixing plant. The mixing plant employees objected to
Wilham’s presence because of a previous arrangement
between BTR and the union that a supervisor would not be
assigned to this particular group of employees. J.W. Burton,
the operations manager, and Terry Brosi, the general
manager, conceded to the employees’ request for Wilham’s
removal, which was determined not to be through any fault of
Wilham. Because Wilham was an experienced supervisor for
BTR, the company did not want to terminate him. According
to BTR, Brosi and Burton assigned Wilham to Massey’s
former position as a laboratory supervisor because there was
no other place to put him. This was considered only a
temporary placement for Wilham until another position was
available for him.
Moore testified that neither Wilham nor Anthony was
qualified for the position. However, Brosi and Burton made
the promotion decision. After Wilham’s initial period in the
laboratory, the company decided it was not going to work out
and that Wilham was not qualified. Within a few months he
was transferred to another position.
The promotion given to Mark Ledbetter
After Wilham was moved out of the position, BTR
maintains it determined that it would seek candidates for the
position who were qualified as quality engineers. BTR
6 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
5The QS-9000 system is a set of standards adopted by the automotive
industry to ensure that all suppliers are held accountable to the same set
of stand ards governing their production, rep orting, and systems.
preferred someone with a college degree, technical
background or CQE credentials to succeed Wilham, instead
of a lab supervisor. BTR further contends that prior
experience within the automotive supply industry to the “Big
Three” automakers was considered a plus.
In May of 1998, Patrick Hood was employed as a quality
manager while BTR was undergoing an attempt to improve
its quality standards and regain a “Ford Q1" status. This
status would require the implementation of the new standard
of quality within the industry, designated as QS-9000.5 BTR
maintains that it needed to change its approach to quality
oversight by attempting to identify the root cause of
problems, rather than testing materials after the fact.
Hood hired Mark Ledbetter, a white male under the age of
forty, to fill the position in June of 1998. Ledbetter had a
CQE status, a technical education, and experience within the
automotive industry. Ledbetter’s job comprised more than
just supervising the extrusion lab. His duties also included
identifying and solving problems, conducting designs of
experiments, performing statistical studies to bring processes
in control, and generally identifying and developing better
test procedures.
The promotion given to Leann Abston
Ledbetter quit after five months to take another job in
November of 1998. At that time Leann Abston, a white
female under the age of forty, replaced him as the quality
engineer responsible for the projects which Ledbetter had
been doing as well as supervising Anthony in the extrusion
lab. Abston was a CQE who had been employed by BTR

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
7
since October 1991 in various quality engineer/supervisor
positions within the quality assurance department. She had
a significant educational background, including an
engineering degree and a master’s degree in business
administration. She also had previous automotive experience
with the Ford Motor Company.
Abston had been selected for a reduction in force in early
1998. After she contested this decision, she was reinstated
during late 1998. Since Ledbetter departed about the same
time, Abston was given Ledbetter’s position because BTR
had agreed to return Abston to work. While Hood testified
that Abston was technically qualified to perform the job, he
did have reservations about her personality and her
absenteeism from work. Nonetheless, he was told by the
acting interim general manager at that time that Abston was
coming back to work in quality engineering.
The promotion given to Rusty Kreyling
Abston resigned in August of 1999, and Rusty Kreyling
was hired permanently in early 1999 to work as a quality
technician in the finishing plant. Kreyling was considered
highly qualified by Hood because of his degree in statistics
from the University of Tennessee and his advanced
knowledge of statistics. Kreyling was not a CQE.
Nonetheless, because of his statistics degree, Hood testified
that Kreyling was more qualified than other CQEs with whom
he had worked in the past.
BTR’s reasons for not promoting Anthony after Wilham
was transferred
While Hood was aware of Anthony’s interest in a
laboratory supervision position, he explained to Anthony that
he had no such position available after Wilham was moved.
Wilham was the only one of the individuals above who was
8 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
6PPAPs are “part approval pro cesses” which mea ns getting new parts
app roved.
ever designated as a laboratory supervisor. The other three
were quality engineers.
Hood also testified concisely in his deposition that BTR
wanted someone with a technical degree or a CQE status for
the position. Hood was also looking for someone with
experience in statistical studies, experiment design, QS-9000
administration, one-on-one customer problem solving, and
PPAPs.6 The persons hired after Wilham all had these or
equivalent qualifications according to Hood.
Hood testified that the majority of Anthony’s job included
the testing of parts and entering the data. Anthony also filed
certain documentation in regard to the QS-9000 as a clerk
would. He had never done any statistical studies or designed
any experiments. According to Hood, Anthony “[s]imply
wasn’t qualified, hands down.” When asked to summarize
why Anthony was not qualified, Hood testified in his
deposition:
[H]e doesn’t have a technical degree, number one, he
doesn’t have a certified quality engineer by his name, he
hasn’t done root cause problem solving involving design
of experiments, he doesn’t have the statistical knowledge
to do more than – anymore than input data into a
computer and hit a button and have it print out.
Analyzing what that data means, he doesn’t have any
background in that.
(J.A. at 272).

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
9
Standards of Review
A court of appeals reviews the grant of summary judgment
de novo. Bowman v. Shawnee State Univ., 220 F.3d 456, 461
(6th Cir. 2000). Summary judgment is proper only if there is
no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); see Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th
Cir. 1990). “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986). In conducting the summary
judgment analysis, this court must view all inferences to be
drawn from the underlying facts in the light most favorable to
the nonmoving party. See Gen. Elec. Co. v. G. Siempelkamp
GmgH & Co., 29 F.3d 1095, 1097-98 (6th Cir. 1994).
On the granting of summary judgment so close to trial in
regard to the district court’s controlling its docket, the court
of appeals reviews such for an abuse of discretion. See
generally Guillory v. Domtar Indus., Inc., 95 F.3d 1320 (5th
Cir. 1996).
Analysis
A. Whether Anthony met the statute of limitations under 42
U.S.C. § 1981
We first address BTR’s argument that Anthony’s § 1981
claim is barred by Tennessee’s one-year statute of limitations.
Anthony asserted his discrimination claims, in part, under
42 U.S.C. § 1981. Originally enacted in 1870, § 1981
provides in pertinent part that “[a]ll persons within the
jurisdiction of the United States shall have the same right in
10 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens. . . .” 42 U.S.C. § 1981. Section
1981 thus prohibits racial discrimination in the making of
contracts and affords a federal remedy against racial
discrimination in private employment. Johnson v. Ry.
Express Agency, Inc., 421 U.S. 454, 460-61, 95 S. Ct. 1716,
44 L. Ed. 2d 295 (1975). In 1989, however, the Supreme
Court held that while the “make and enforce contracts”
language of § 1981 proscribed discriminatory hiring, it did
not proscribe discriminatory termination or other
discriminatory actions occurring after the employment
relationship was formed. Patterson v. McLean Credit Union,
491 U.S. 164, 177-78, 109 S. Ct. 2363, 105 L. Ed. 2d 132
(1989).
In the wake of Patterson, Congress passed the Civil Rights
Act of 1991, which amended § 1981 by designating its
original text, quoted above, as subsection (a) and by adding
a new subsection (b) to define the term “make and enforce”
contracts to include “[t]he making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the
contractual relationship.” See 42 U.S.C. § 1981(b). This
amendment effectively reversed Patterson and permitted the
use of § 1981 to challenge alleged race discrimination not
only in the formation of the employment relationship, but in
“post-formation” employment actions as well.
Thus, the 1991 amendments to § 1981 created “liabilities
that had no legal existence before the 1991 Act was passed.”
Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, 114 S.
Ct. 1510, 1519-20, 128 L. Ed. 2d 274 (1994); see also Harris
v. Allstate Ins. Co., 300 F.3d 1183, 1186-87 (10th Cir. 2002)
(“The Civil Rights Act of 1991 . . . essentially created a new
cause of action to challenge an employer’s discriminatory
post-formation conduct.”); Young v. Sabbatine, No. 97-5169,
1998 WL 136559, at *3 (6th Cir. Mar. 19, 1998) (noting that

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
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the 1991 amendments were “not merely restorative” but
created new substantive liabilities) (citing Rivers, supra).
This review of the history of 42 U.S.C. § 1981 is essential
to the analysis of which statute of limitations applies to
§ 1981 claims such as those asserted in this case.
Section 1981 does not contain its own statute of limitations.
In Goodman v. Lukens Steel Co., 482 U.S. 656, 661, 107 S.
Ct. 2617, 2620, 96 L. Ed. 2d 572 (1987), the Supreme Court
held that federal courts should select the most appropriate or
analogous state statute of limitations to apply to § 1981
claims. The Sixth Circuit thus held that the limitations period
for § 1981 actions in Tennessee was the state’s one-year
limitation period set forth in Tenn. Code Ann. § 28-3-104.
See Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th
Cir. 1992).
However, on December 1, 1990, Congress passed 28
U.S.C. § 1658, a general statute of limitations applicable to all
federal statutes enacted after that date, which states in
pertinent part: “Except as otherwise provided by law, a civil
action arising under an Act of Congress enacted after the date
of enactment of this section may not be commenced later than
4 years after the cause of action accrues.” 28 U.S.C. § 1658
(emphasis added).
The question of how, if at all, the passage of 28 U.S.C.
§ 1658 affected the statute of limitations for § 1981 claims is
one that has divided the federal courts. See Harris, 300 F.3d
at 1187 (noting that the federal courts “have split in
determining which statute of limitations applies to suits
brought under the amended version of § 1981"); see also
Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 728 (7th
Cir. 2002) (noting division among circuits and holding that 28
U.S.C. § 1658 does not apply to § 1981 claims), cert. granted,
__ U.S. __, 123 S. Ct. 2074 (2003).
12 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
The Third Circuit, in 2000, discussed three different
approaches that courts have taken. Zubi v. AT&T Corp., 219
F.3d 220, 222 (3d Cir. 2000). Summarized briefly, they are:
(1) that claims created by the Civil Rights Act of 1991
amending § 1981 should be subject to the new four-year
statute of limitations, but all other claims remain subject to
the state “borrowed” period; (2) that all § 1981 claims
accruing after the passage of 28 U.S.C. § 1658 are now
subject to the four-year limitations period; and (3) that the
Civil Rights Act of 1991 merely amended an existing law and
was not a new enactment for purposes of 28 U.S.C. § 1658,
and thus all § 1981 claims remain subject to the state
“borrowed” limitations period. Id.
The Third, Seventh, and Eighth Circuits presently hold that
28 U.S.C. § 1658 does not apply to any claims under § 1981,
whether arising under its original text or under the 1991
amendments. See Jones, 305 F.3d at 728; Madison v. IBP,
Inc., 257 F.3d 780, 798 (8th Cir. 2001), vacated on other
grounds, 536 U.S. 919, 122 S. Ct. 2583, 153 L. Ed. 2d 773
(2002) (mem.); Zubi, 219 F.3d at 225.
In contrast, the Tenth Circuit recently held that 28 U.S.C.
§ 1658&s four-year statute of limitations applies to § 1981
claims that were created by the 1991 amendments (e.g.,
claims under § 1981(b)). See Harris, 300 F.3d at 1191. The
Eleventh Circuit has been presented with the issue but has not
ruled on it. See Taylor v. Ala. Intertribal Council Title IV
J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001) (affirming
dismissal of § 1981 claims on qualified immunity grounds
and not reaching statute of limitations issue), cert. denied, 535
U.S.1066, 122 S. Ct. 1936, 152 L. Ed. 2d 841 (2002) (mem.).
Several years ago, we recognized this question but did not
have occasion to resolve it. Sabbatine, 1998 WL 136559, at
*3. Again last year, we were presented with the issue but
explicitly declined to express a view on the merits because we
did not have jurisdiction. See Smith v. County of Hamilton,

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
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7W e note that the Supreme Co urt recently granted certiorari in the
Jones case out of the Seventh Circuit, indicating that it will likely soon
resolve the issue. See Jones v. R.R. Donnelley & Sons, Inc., 305 F.3d 717
(7th Cir. 20 02), cert. granted, __ U.S. __, 123 S . Ct. 2074 (2003 ).
Nonetheless, this panel must proceed to address the issue in this case as
best it can based on the authorities currently available.
8On remand, the district co urt concluded that 28 U.S.C. § 1 658 did
extend the statute of limitations for the plaintiff’s § 1981 claims to four
years. See Young v. Sabbatine, No. 99-6336 , 200 0 W L 18 886 72, at *2
n.2 (6th Cir. Dec. 19, 2000) (so noting, and holding that the Sixth Circuit
had no jurisdiction to consider the issue on this second appeal because the
employer did not file a notice of cross-appeal to preserve the issue).
34 Fed. Appx. 450, 455, No. 00-4290, 2002 WL 655524 (6th
Cir. Apr. 19, 2002) (unpublished).7
In Sabbatine, the plaintiff invoked § 1981 to allege that his
employer had created a racially discriminatory hostile work
environment and that it had failed to promote him on account
of his race. 1998 WL 136559, at *1. The district court
dismissed the § 1981 claims as untimely under the one-year
statute of limitations borrowed from Kentucky. Id. at *3. We
reversed and remanded, stating that the district court should
consider the application of the four-year limitation period in
28 U.S.C. § 1658 in light of the 1991 amendments to § 1981.8
Id.
Several district courts within this circuit have since held
that the four-year limitations period of 28 U.S.C. § 1658
should now apply to § 1981 claims, in whole or in part. See
Kinley v. Norfolk Southern Ry. Co., 230 F. Supp. 2d 770, 776
(E.D. Ky. 2002) (applying four-year limitations period to
failure to promote claims); Brown v. Jenny Craig Weight Loss
Ctr., No. C-1-97-0211, 2000 WL 989918 (S.D. Ohio May 2,
2000) (holding that four-year statute of limitations should
apply to all portions of § 1981); Miller v. Fed. Express Corp.,
56 F. Supp. 2d 955, 964-65 (W.D. Tenn. 1999) (applying
14 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
four-year statute of limitations to § 1981 claim alleging
racially discriminatory termination); Rodgers v. Apple South,
Inc., 35 F. Supp. 2d 974, 976-77 (W.D. Ky. 1999) (holding
that four-year statute of limitations should apply to all § 1981
claims). But see Coleman v. Shoney’s, Inc., 145 F. Supp. 2d
934, 938 (W.D. Tenn. 2001) (holding that § 1658 does not
apply to any claim under § 1981).
We now hold that the four-year statute of limitations set
forth in 28 U.S.C. § 1658 does indeed apply to § 1981 claims
insofar as they arise under the portion of the statute enacted
by the Civil Rights Act of 1991. That legislation
undisputably created new legal rights that did not exist prior
to its passage. See Rivers, 511 U.S. at 313, 114 S. Ct. at
1519-20. Section 1981 claims premised upon alleged
discriminatory actions occurring after the formation of the
employment relationship, such as the failures to promote at
issue in this case, are thus actionable under § 1981 only by
virtue of legislation enacted after December 1, 1990, and by
its terms 28 U.S.C. § 1658 therefore applies to them.
In this regard, we are in agreement with the reasoning of
the Tenth Circuit in Harris, supra. We also agree, as
expressed in Harris, that the fact that this statutory
construction results in “post-formation” § 1981 claims being
subject to a four-year limitations period and “formation”
claims remaining subject to the borrowed state limitations
period does not change this analysis. 300 F.3d at 1193. As
the Tenth Circuit noted, “courts routinely apply different
statutes of limitations to different claims, including claims
made within a single lawsuit.” Id. Particularly within the
realm of employment law, where rights may be, and are
typically, asserted under both federal and state law, litigants
and courts routinely deal with differing limitations periods for
related causes of action. While this result may not yield the
greatest simplicity, it does reflect what we believe to be the
most faithful reading of these statutes.

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
15
9Anthony’s claims of discrimination under different statutes require
the same standards of proof and therefore will not be analyzed separately.
See Wade v. Knoxville Utils. Bd., 259 F.3d 45 2, 464 (6th Cir. 2001).
B. Whether the district court erred in granting summary
judgment to BTR on Anthony’s claims of racial and age
discrimination9
Anthony alleges discrimination by BTR’s refusal to
promote him allegedly based on his race and age. In order to
establish employment discrimination, Anthony must either
present direct evidence of discrimination or introduce
circumstantial evidence that would allow an inference of
discriminatory treatment. Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc). Anthony
relies on circumstantial evidence and presents no direct
evidence.
The burden-shifting approach under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973), which was later refined in Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089,
67 L. Ed. 2d 207 (1981), applies to the present case. Under
this framework, Anthony faces the initial burden of presenting
a prima facie case of discrimination. The establishment of a
prima facie case creates a rebuttable presumption of
discrimination and requires BTR to articulate some
legitimate, nondiscriminatory reason for taking the challenged
action. BTR’s burden is only one of production, not
persuasion. Gray v. Toshiba Am. Consumer Prods., Inc., 263
F.3d 595, 599 (6th Cir. 2001) (citing Burdine, 450 U.S. at
253, 101 S. Ct. at 1093). The ultimate burden of persuasion
remains with Anthony. Id. If BTR produces legitimate
nondiscriminatory reasons, Anthony must prove BTR’s
reasons are a pretext for discrimination.
16 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
10W e note that in Farm er v. Cleveland Pub. Power, 295 F.3d 593,
603 (6th Cir. 2002) and Roh v. Lakeshore Estates, Inc., 241 F.3d 491, 497
(6th Cir. 20 01), this Court stated that the fourth prong could be met if the
position went to a less-qualified applicant who was not a member of the
protected group. This standard conflicts with or ignores prior published
decisions of this Court using the “similarly situated” standard. See, e.g.,
Nguyen v. City of Cleveland, 229 F.3d 559 , 562 -63 (6 th Cir. 2000 ); Allen
v. Mich. Dep ’t of Corr., 165 F.3d 405 , 410 (6th C ir. 199 9); Betkerur v.
Aultman Hosp. Ass’n, 78 F.3d 1 079 , 109 5 (6th Cir. 1996 ); Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344 , 352 (6th C ir. 199 8); Brown
v. Tenn., 693 F.2d 600 , 603 (6th C ir. 198 2). We, therefore, decline to
adopt the “less-qualified” language used in Farmer and Roh because it
deviates from prior precedent.
11Anthony was forty-three years of age when the first promotion
went to Wilham.
In order to make a prima facie case based upon a failure to
promote, Anthony must prove that (1) that he is a member of
a protected class; (2) that he applied for, and did not receive,
a job; (3) that he was qualified for the job; and (4) that a
similarly-situated person who was not in the plaintiff’s
protected class received the job.10 Thurman v. Yellow Freight
Sys., Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); see also
Burdine, 450 U.S. at 254 (citing McDonnell Douglas, 411
U.S. 792). Cf. Seay v. TVA, No. 01-5953 (6th Cir. 2003).
The Wilham promotion
Anthony, as an African-American over the age of forty,11
is indeed within the protected race and age classes. He
applied for the promotion, but it was denied to him. It is the
remaining requirements of a prima facie case that are at issue
on the Wilham promotion.
On whether he was considered for the promotion, Denny
Moore, the human resources manager, testified that Anthony
gave him his resume. At that time BTR was not looking for
a laboratory supervisor, the position which Anthony sought.

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
17
12There may be instances where a deviation from the stated criteria
of a job position would result in an inference of discrimination. See e.g.,
Briggs v. Anderson, 796 F.2d 1009, 1026 (8th Cir. 1986). Under the
particular facts of this case, no such inference is warranted.
Instead, BTR was searching for someone with a degree and
CQE status. It is not disputed that Anthony did not have
these qualifications and was not interviewed. While
ordinarily the fact that a candidate did not have the proper
credentials for a position might excuse the employer from not
considering him, we continue with the prima facie case
because the position was filled by Wilham, who also did not
have the proper credentials. Moore testified that neither
Wilham nor Anthony was qualified for the position. A
plaintiff should not be required to prove that he is qualified to
meet the stated requirements for a position where the selected
candidate likewise does not meet the requirements.12
On the final prong of the prima facie case, neither Anthony
nor Wilham met the stated criteria for the actual position BTR
sought to fill with a quality engineer, but both had experience
which could make them viable candidates for a laboratory
supervisor. Accordingly, they can be considered similarly
situated for the purposes of reviewing Anthony’s failure-to-
promote claim. Hence, this Court finds that Anthony has met
his prima facie case.
The burden now shifts to BTR to articulate a legitimate,
nondiscriminatory reason for placing Wilham in the position.
BTR removed Wilham as supervisor of the mixing plant due
to an agreement with the union, and it did not want to
terminate him. Placing Wilham into Massey’s former
position was necessary because BTR did not have any other
position at that time for Wilham. Anthony has presented no
evidence to the contrary.
18 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
To make a submissible case on the credibility of BTR’s
explanation, Anthony is “‘required to show by a
preponderance of the evidence either (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate [the employment action], or (3) that
they were insufficient to motivate [the employment action].’”
Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078,
1084 (6th Cir. 1994) (alteration in original) (citing McNabola
v. Chi. Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)).
Anthony has failed to show that BTR’s reasons are
pretextual. He does not present any evidence showing BTR’s
reasons were not based in fact or that they were not the real
reasons for its decision. Anthony only presents his own
qualifications on the issue of pretext, and this is insufficient.
The quality engineer promotions
As to the position after Wilham was moved, BTR only
sought out candidates with the necessary qualifications it
deemed essential in a quality engineer. The real issue here is
whether Anthony was qualified for the position of quality
engineer. Hood testified that Anthony was not qualified
“hands down.” The person BTR wanted for the position was
someone with a technical/statistical background or degree or
someone who was a CQE. Experience with the “Big Three”
motor companies was also considered a plus.
It is undisputed that Anthony did not have these
qualifications, while the three persons who received the
promotions did. Although Anthony argues that his
experience and background made him as well qualified as the
other candidates, we cannot say in the mind of BTR that this
was equivalent to a college degree, a CQE status, or the other
objective qualifications which BTR sought in a quality
engineer. Accordingly, Anthony was not qualified for the
position, and he has failed to establish a prima facie case. See
Wexler, 317 F.3d at 576 (holding that in determining whether

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
19
plaintiff has satisfied qualification prong of prima facie test,
inquiry should focus on objective criteria).
C. Whether the district court abused its discretion in
granting summary judgment to BTR four days before
trial
Anthony complains because the district court waited until
four days before trial to issue its decision on summary
judgment. However, trial courts have inherent power to
control their dockets. See, e.g., Gould v. Wood/Chuck
Chipper Corp., Nos. 99-1544, 99-1707, 2000 WL 1234334
(6th Cir. Aug. 25, 2000); Oliva v. Sullivan, 958 F.2d 272 (9th
Cir. 1992); Edwards v. Cass County, Tex., 919 F.2d 273 (5th
Cir. 1990); Polk-Osumah v. Wayne County, Mich., 205 F.R.D.
199 (E.D. Mich. 2001); U.S. v. Reaves, 636 F. Supp. 1575,
1578 (E.D. Ky. 1986 ). The timing of trials and docket
control are matters best left to the discretion of the trial court.
In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996).
We cannot say that the district court’s granting summary
judgment four days before trial was an abuse of discretion,
considering the heavy caseloads under which the district
courts labor. Plaintiff is better off than he would be if the
district court had granted judgment as a matter of law at the
close of plaintiff’s evidence.
For the reasons stated, we AFFIRM the district court.
20 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
____________________
CONCURRENCE
____________________
R. GUY COLE, JR., Circuit Judge, concurring. Anthony’s
Title VII and ADEA claims relating to the positions filled by
Wilham and Ledbetter are time-barred and, therefore, no
longer actionable. Likewise, Anthony’s Tennessee Human
Rights Act claims relating to the positions obtained by
Wilham, Ledbetter, and Abston are time-barred, as they were
not filed within the one-year statute of limitations period.
Finally, under our established precedent, Anthony’s § 1981
claims are subject to a one-year statute of limitations period.
See Wade v. Knoxville Utils. Bd., 259 F.3d 452, 464 (6th Cir.
2001) (explaining that “[b]ecause § 1981 does not specify a
statute of limitations, [courts must] apply the one-year
limitations period from Tenn. Code Ann. § 28-3-104.” (citing
Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th Cir.
1992)). Today, the majority supplants the well-established
rule that the statute of limitations for § 1981 claims must be
borrowed from an analogous state statute insofar as that rule
applies to claims “aris[ing] under the portion of [§ 1981]
enacted by the Civil Rights Act of 1991.” I write separately
because I believe there are no claims that arise under the
portion of § 1981 enacted under the Civil Rights Act of 1991,
and because I believe 28 U.S.C. § 1658 was not intended to
apply to § 1981 as amended or otherwise.
Although, § 1981(b) allows new causes of action in that it
allows plaintiffs to bring previously unavailable claims –
claims arising out of discriminatory conduct that occurs after
the private employment relationship is formed – § 1981(b)
alone cannot give rise to these causes of action. Instead,
§ 1981(b) defines the phrase “make and enforce contracts” as
that phrase is used in § 1981(a). Specifically, as the majority
notes, in reaction to the Supreme Court’s decision in
Patterson v. McLean Credit Union, 491 U.S. 164 (1987),

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No. 01-6028 Anthony v. BTR Automotive
Sealing Systems, Inc.
21
1For the reasons described above, I believe that no claim will ever
arise solely under § 1981(b). However, for purposes of argum ent, I will
concede that a § 1 981 post-formation claim could be viewed as arising
under both subsections (a) and (b) of § 1981.
§ 1981(b) was added to define that phrase more broadly than
it had previously been defined. However, § 1981(a), entitled
“Statement of equal rights,” is still the source of substantive
rights in the statute. Because § 1981(b) is merely definitional,
it functions only to broaden the scope of causes of action that
arise under § 1981(a). Section 1981(b) does not, in and of
itself, provide the basis for any causes of action. Therefore,
the “new causes of action” that are now permitted as a result
of the inclusion of § 1981(b) are actually § 1981(a) claims.
Thus, I would find that § 1981 post-formation claims simply
arise under § 1981(a), which is a statute enacted prior to the
effective date of 28 U.S.C. § 1658, December 1, 1990. This
finding renders the § 1658 limitations period inapplicable to
§ 1981 post-formation claims.
Alternatively, even assuming that a post-formation claim
arises under both § 1981(a) and (b),1 § 1658 is at least
ambiguous as to whether Congress intended its “catchall”
four-year statute of limitations to apply to these claims. The
language of § 1658 simply does not address the eventuality
when a cause of action “aris[es] under” two different “Acts of
Congress,” one enacted before and one enacted after
December 1, 1990. See Jones v. R.R. Donnelley & Sons, Co.,
305 F.3d 717, 724 (7th Cir. 2002). Thus, I would look
beyond the plain language of § 1658 to determine whether it
was intended to apply to post-formation § 1981 claims.
The legislative histories of § 1658 and the Civil Rights Act
of 1991 suggest that Congress did not intend § 1658’s four-
year limitation period to apply to § 1981 post-formation
claims. As the Seventh Circuit explained, § 1658 was enacted
to “alleviate the uncertainty inherent in the practice of
22 Anthony v. BTR Automotive
Sealing Systems, Inc.
No. 01-6028
borrowing analogous state statutes of limitations for federal
causes of action that do not contain their own limitations
periods.” Id. at 725 (citing H.R. Rep. No. 101-734, at 24).
Moreover, § 1658 “was also concerned with disrupting
litigants’ settled expectations.” Id. (explaining that, to
address this concern, Congress made § 1658 prospective). I
agree with the Seventh Circuit that the conclusion that
§ 1658’s four-year limitation period does not apply to § 1981
post-formation claims is consistent with Congress’s two
purposes in enacting § 1658. Id. at 726-27. Likewise, I
believe that the legislative history of § 1981 supports this
conclusion. Id. at 727 (citing H.R. Rep. No. 102-40(I), at 63
(1991), U.S. Code Cong. & Admin. News 1991, at 601).
Thus, I would find that Anthony’s § 1981 claims relating to
the positions filled by Wilham, Ledbetter, and Abston, but not
Kreyling, are time-barred. With respect to the claims that are
not time barred, Anthony’s Title VII, ADEA, and § 1981
claims relating to the position filled by Kreyling and
Anthony’s Title VII and ADEA claims relating to the position
filled by Abston, I would deny these claims on the merits for
the reasons stated by the majority.

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