Spencer J. Carter, Iii v. Toyota Tsusho America, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0620n.06
No. 12-5384
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SPENCER J. CARTER, III,
Plaintiff - Appellant,
v.
TOYOTA TSUSHO AMERICA, INC.,
Defendant - Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
BEFORE: WHITE and DONALD, Circuit Judges; VARLAN, Chief District Judge.*
HELENE N. WHITE, Circuit Judge. Plaintiff Spencer J. Carter, III (Carter), appeals the
district court’s grant of summary judgment in favor of his former employer, Defendant Toyota
Tsusho America, Inc. (TAI), dismissing Carter’s race- and age-based employment discrimination
claims brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.
§ 2000e–2(a)(1), the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1), and
the Kentucky Civil Rights Act (KCRA), Ky. Rev. Stat. Ann. § 344.040(1). We AFFIRM.
The Honorable Thomas A. Varlan, Chief United States District Judge for the Eastern District*
of Tennessee, sitting by designation.

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I.
A.
1. TAI hires Carter to manage its information technology department
TAI supplies steel and related materials to the car manufacturing industry. Prior to joining
TAI, Carter had nearly twenty years of management experience in information technology (IT). One
of TAI’s officers, William Wiener, interviewed Carter for employment and recommended him for
hire. In January 2002, TAI hired Carter as the general manager of its IT department, based at TAI’s
Georgetown, Kentucky location. In this position, Carter was “responsible for directing, organizing,
planning and controlling the IT [d]epartment in accomplishing TAI goals and objectives across all
locations. This include[d] coordinating with and guiding other departments to achieve the most
productive and cost effective solutions to their IT projects.” Carter’s leadership position required
him to manage the day-to-day operations of the department. As Carter confirmed at his deposition,
the position also required him to have a vision to translate TAI goals and objectives into action.
Shortly after TAI hired Carter, Wiener became the company’s chief operating officer and
Carter’s direct supervisor. Wiener acted as Carter’s supervisor until December 2007, which is when
Carter began indirectly reporting to Wiener through Larry Keiser, the supervisor who ultimately
recommended Carter’s termination to Wiener.
Wiener’s office was based in New York and he traveled to Georgetown on a monthly basis.
According to Carter, Wiener rated his job performance as meeting expectations or better. However,
Wiener testified that he had given Carter only “midline” ratings on performance reviews, and stated
that Carter had not met the company’s expectations for several years.
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TAI did not produce written reviews that Carter alleges exist. TAI maintains that such
written reviews never existed. Carter thus points to his salary increases as evidence that he met or
exceeded company standards. Under TAI performance standards, employees are rated as
outstanding, exceeding expectations, meeting expectations, or below expectations. An employee’s
salary increase is determined based on a weighted formula that takes into account the score from the
employee’s individual performance rating, as well as ratings for that employee’s section and the
overall company rating. For IT employees, the individual rating (consisting of an alpha or numeric
score issued by the employee’s supervisor) has the most weight.
Carter started at TAI with an annual salary of approximately $110,000. From 2003 to 2007,
Carter received the following annual percentage increases in his salary:
2003: 5.00 percent ($115,499.80)
2004: 3.45 percent ($119,483.936)
2005: 3.61 percent ($123,800.04)
2006: 3.30 percent ($127,885.47)
2007: 3.50 percent ($132,361.01)
Under company guidelines, employees who perform below exceptions would receive salary
increases of about two percent or less. By contrast, employees evaluated as exceeding expectations
would be entitled to a 3.6 to 4.4 percent salary increase, with a 3.5 percent target increase for all
employees meeting expectations.
2. Executive coaching
In early 2007, Wiener referred Carter to an outside consultant, Lisa Morgan, for executive
coaching. Morgan testified that TAI paid about $10,000 for the six-month program, the coaching
for Carter was not punitive, and a company does not usually invest in coaching unless it feels that
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the employee will be part of its future. The coaching program has two phases: assessment and
development. During the assessment phase, Morgan conducted a 360 Degree Feedback Evaluation
Report (360 Report or the report) regarding Carter’s leadership practices based on responses from
Wiener, as well as Carter’s colleagues and subordinates. The report indicated that Carter’s weakest
skills involved “strategy integration with visioning, strategic thinking, and managing change.”
Morgan testified that vision and strategy were very important skills for Carter to develop to be an
effective manager. Further, Morgan stated that the report revealed a “significant gap” between how
Carter viewed himself and how his coworkers viewed him. Carter rated himself higher than Wiener
and his coworkers rated him on questions regarding leadership, building relationships, results
orientation, and strategy. Although Carter received some positive feedback from coworkers on the
report’s open-ended questions, the report also included the following feedback as suggestions for
Carter to be more effective: “team builder”; “be more decisive”; “provide leadership in how to
improve the overall organization with IT technology advances”; “communicate more with staff”;
“pay careful attention to morale issues”; “gives the ‘impression’ that he has his best interest in mind
rather than the department”; “higher focus on leadership”; and “better execution of projects and
special requirements.”
Following the assessment, Carter and Morgan prepared a “development plan” that identified
the following areas for improvement: visioning and strategic thinking, inspirational leadership, and
managing change and building commitment. However, they did not implement the development
plan because Morgan shifted her focus to address Wiener’s immediate concerns about Carter’s
leadership of the IT department. Among the specific issues that triggered Wiener’s concerns were
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wires hanging from a conference room ceiling at the Georgetown location (a problem that fell under
the IT department’s responsibility and that had not been fixed for eight months) and that he felt that
he had to monitor two of Carter’s projects “very intensely” to make sure that IT users were satisfied.
To address Wiener’s concerns, Carter and Morgan developed a new plan to address Carter’s
communication, execution, and organization skills: the C.E.O. plan. Carter devised the plan’s title
and presented the plan to Wiener. Carter testified that these were three areas in which he intended
to improve and Wiener had told him that he needed improvement. In addition to general objectives,
the plan listed specific issues that Carter needed to address (such as hiring staff for vacant positions
and reviewing certain contracts) or had just recently addressed (such as ensuring that boardrooms
were properly equipped for meetings and eliminating clutter). At his deposition, Carter did not
dispute that Wiener had expressed concerns that he lacked a vision or strategy for the IT department.
3. Carter’s accomplishments
Carter emphasizes that he undertook several initiatives during his tenure at TAI, such as:
1) switching the company from using LotusNotes to Outlook; 2) creating a help-desk system to track
IT help-desk tickets and user complaints; 3) changing the company’s server provider, resulting in
lower costs and better risk-management; and 4) implementing “failover” systems for power loss.
Also, he annually accomplished the IT department’s budget priorities. With respect to the
company’s help-desk statistics, Carter emphasizes that the declining number of help-desk tickets
showed that he had been successful in improving IT functions. From 2007 to 2008, the company
experienced an overall, slight downward trend in help-desk tickets, with a significant drop in tickets
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in late 2008 compared to 2007. The company generally considered help-desk statistics as a positive
indicator of IT performance.
4. Unfavorable employee feedback
In September 2007, Carter received the results of TAI’s 2007 Viewpoint Employee Opinion
Survey that summarized responses from twenty-six IT employees. A similar survey had been
conducted in 2003. The 2007 survey contained the following unfavorable responses for Carter’s IT
department:
• Do you often get conflicting orders or instructions and as a result often do not know what
you are supposed to do?
Carter’s department decreased from 53 percent favorable in 2003 to 31 percent
favorable in 2007.
• How satisfied are you with the morale in your division?
Carter’s department decreased from 26 percent favorable in 2003 to 23 percent
favorable in 2007.
• How satisfied are you with the job performance of your department head?
Carter’s department decreased from 44 percent favorable in 2003 to 27 percent
favorable in 2007.
At his deposition, Carter did not dispute the unfavorable nature of these responses. He
testified that, in response to the survey results, he had changed the coffee and lighting in the
department, and had built a picnic table, but he did not recall doing anything more specific.
5. Keiser becomes Carter’s supervisor and unfavorably rates Carter’s leadership skills
In late 2007, TAI modified the IT department’s reporting structure. Specifically, the IT
department began reporting indirectly to Wiener through Keiser, who was assigned to the position
of vice president/general manager of management systems, internal audit and consulting. As a result
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of this change, Keiser became Carter’s direct supervisor in December 2007. Upon being assigned
the new position, Keiser’s office was right down the hall from Carter at TAI’s Georgetown,
Kentucky location, whereas Wiener had been based in New York.
In February 2008, Keiser completed Carter’s written performance review, rating him overall
as “M-minus,” i.e., less than meeting expectations:
1) Carter had adequate knowledge of job requirements and understood the technical side of
the IT business, but his managerial side needed strengthening because he often “appear[ed] to be in
reactive mode versus a proactive and planned approach,” “seem[ed] to over[-]exaggerate . . .
situations,” and conveyed a sense of “panic” to IT staff.
2) As to his analytical ability and judgment, Carter was “usually prepared” and most of his
decisions were sound; he was “[v]ery organized in [his] thoughts to a software or hardware issue”
but “[s]ometimes appear[ed] reluctant to react or take action once the issues [were] understood.”
For example, Keiser recommended that Carter should take a more inquisitive approach to certain
issues, such as new board room equipment.
3) On planning and work organization, Carter was “sometimes late in meeting
commitments.” Keiser commented that, although Carter met objectives in his fiscal year-end 2008
budget priorities, improvement could be achieved in planning and organizing daily, weekly, and
monthly objectives; and it appeared that Carter was “being driven rather than being the driver” of
the IT department.
4) On initiative and acceptance of responsibility, Carter was usually not assertive, although
no specific instance was provided.
5) Carter “usually turn[ed] out acceptable work” without many errors. The results of specific
projects were “very favorable.” On the other hand, Keiser commented that Carter should ensure that
configuration of the network was capable of meeting TAI’s requirements before a problem arises;
suggested developing a plan to implement a new version of Microsoft Office, as some employees
were having version problems; and noted that Carter was not active in trying to fill “multiple
positions [that had been] open for months.”
6) Carter reacted positively to assignments. However, Keiser commented that he was
concerned that Carter relied on too much direction from upper management as opposed to having
his own vision for the IT department.
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7) Carter was a “very likable person,” but: a) did not seem to respond as an “internal
consultant” to persons outside of the IT department—for example, with respect to one project, Carter
appeared more concerned about why he should not take on the project rather than seeing “where the
organization is going” and what he could do “to make this the most efficient and positive going
forward”; and b) relied too much on email to contact persons when issues arose instead of
approaching them personally or calling them by phone.
8) Regarding his attitude toward the company, Carter had “nothing but the best intent for the
company” and was a good team player.
In summary, Keiser recommended that Carter develop time management, strategy, and
planning skills; and prepare for being the chief IT executive for a company twice the size in five
years. He also suggested that Carter should be more interactive with IT users. Under employee
comments, Carter objected by emphasizing his accomplishments on certain projects but did not
dispute Keiser’s points.
Around this time, Keiser also attempted to counsel Carter on the original development plan
that Morgan did not implement because Carter’s coaching program had been overhauled to address
Wiener’s immediate concerns. At his deposition, Carter acknowledged that Keiser had provided him
with a number of suggestions on how to improve his image as a leader. In May 2008, Keiser
provided Carter with notes about his leadership performance. Among other items, Keiser
commented that Carter had been late in finalizing a contract, and the IT department lacked a clearly
defined organizational structure and functional responsibilities for employees.
According to Keiser, Carter made some improvement by following his suggestions. Carter
also met the IT department’s budget priorities in 2008, and Keiser was unaware of any IT employees
who had left the department because they were dissatisfied with Carter’s leadership. However, in
June 2008, Wiener received an email complaint from a Japanese IT user company. The user
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expressed frustration with the Georgetown IT department’s handling of several issues, including the
failure to provide a fax number for a new fax machine and an IT employee’s representation that the
issue was on hold; and the mishandling of the user’s IP address, causing the user’s website to
disappear, which issue was not resolved for about one month. Wiener forwarded the email to Keiser,
with instructions for him to review the user’s complaint with Carter and correct the problems.
Keiser, in turn, forwarded the email to Carter, stating that “[t]his unfortunately creates problems . . .
when the [chief operating officer] has to get involved.”
In September 2008, Keiser met with Carter to discuss further suggestions on Carter’s
leadership skills. Specific suggestions included leading morning meetings and walking around the
office to personally talk to staff members. At his deposition, Carter did not dispute Keiser’s
suggestions and testified that he executed them. Nevertheless, Keiser and Wiener continued to
receive IT user complaints expressing frustration about Carter’s responsiveness, including an email
from an affiliate company’s representative stating that it had been nearly two weeks since the
company requested an approximate transition schedule from the IT department but had received
nothing in response, even though Carter had “a rough draft of such a document when [he] visited
previously.”
6. Termination
In the fall of 2008, Keiser recommended to Wiener that Carter be fired on the basis of his
inability to perform at the level of general manager of IT. Wiener approved Carter’s
discharge—effective January 29, 2009. At the time of Carter’s firing, he was fifty-seven years old.
TAI replaced Carter with a forty-eight year old Caucasian male.
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B.
Carter filed this action, asserting that TAI unlawfully terminated his employment on the basis
of his race and age. The district court granted TAI’s motion for summary judgment. See Carter v.1
Toyota Tsusho Am., Inc., No. 10-cv-132, 2012 WL 786344 (E.D. Ky. March 9, 2012). The court
assumed that Carter established a prima facie case as to both discrimination claims and concluded
that TAI articulated legitimate, non-discriminatory reasons for firing him. Id. at *4–5. The court
dismissed the action on the basis that Carter had failed to offer sufficient evidence to rebut TAI’s
reasons for firing him and thus did not establish a genuine issue for trial. Id. at *6–7. Carter timely
appealed.
II.
A.
“We review de novo the district court’s grant of summary judgment.” Hawkins v. Anheuser-
Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “In considering a motion for summary judgment, the district
court must construe the evidence and draw all reasonable inferences in favor of the nonmoving
party.” Hawkins, 517 F.3d at 332 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)).
Carter also raised a failure-to-promote claim, but he has abandoned that claim on appeal.1
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B.
Carter claims that TAI fired him based on unlawful race and age discrimination, in violation
of the ADEA, Title VII, and the KCRA. See 29 U.S.C. § 623(a)(1) (ADEA); 42 U.S.C.
§ 2000e–2(a)(1) (Title VII); Ky. Rev. Stat. Ann. § 344.040(1)(a) (KCRA). Because Carter does not
present direct evidence of discrimination, his claims under these statutes are analyzed under the
three-step burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003); Williams v. Wal-Mart Stores,
Inc., 184 S.W.3d 492, 495–96 (Ky. 2005) (applying McDonnell Douglas to KCRA age-
discrimination claim); Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 797
(Ky. 2004) (applying McDonnell Douglas to KCRA race-discrimination claim).
Under the first step, Carter must establish a prima facie case of employment discrimination
by showing that: “(1) he is a member of a protected class; (2) he was qualified for his job; (3) he
suffered an adverse employment decision; and (4) he was replaced by a person outside the protected
class or treated differently than similarly situated non-protected employees.” White v. Baxter
Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). “In age discrimination cases, the protected
class includes all workers at least 40 years old and the fourth element is modified to require
replacement not by a person outside the protected class, but merely replacement by a significantly
younger person.” Grosjean, 349 F.3d at 335; see O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 312–13 (1996). Under the second step, once Carter has established a prima facie claim,
“the defendant must ‘articulate some legitimate, nondiscriminatory reason’ for the termination.”
Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (quoting McDonnell Douglas
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Corp., 411 U.S. at 802). “If the defendant meets this burden, then [under the last step] the burden
of production shifts back to the plaintiff to demonstrate that the proffered reason is a pretext.” Id.
(internal quotation marks omitted).
The parties do not dispute that Carter established a prima facie case of race and age
discrimination, or that TAI articulated legitimate, nondiscriminatory reasons for terminating his
employment. The only question before us is whether there is a triable issue as to whether TAI’s
articulated reasons were pretext.
C.
Carter argues that the district court incorrectly applied a “pretext-plus” standard to his claims.
The district court stated:
Plaintiff attempts to demonstrate that the proffered reason was not the actual reason
for his termination. For his claims to survive Defendant’s motion for summary
judgment, Plaintiff is required to provide some proof suggesting that, not only is
Defendant’s proffered reason not the real reason Plaintiff was fired, but that the
actual reason was discrimination. Pierce v. Commonwealth Life Ins. Co., 40 F.3d
796, 804–05 (6th Cir. 1994). “[E]stablishing that the employer’s reason was a
pretext requires that a plaintiff do more than simply impugn the legitimacy of the
asserted justification; in addition, the plaintiff must also adduce evidence of the
employer’s discriminatory animus . . .” Id. (emphasis added) (citing St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 513–15 (1993)). In other words, “[a] reason
cannot be proved to be a pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason.” [Hicks], 509 U.S. at
515 (internal quotation marks omitted) (emphasis in original).
Carter, 2012 WL 786344, at *6 (first alteration in original) (italics corrected to reflect R. 59).
The district court’s articulation of the law on this point is understandable given this circuit’s
prior case law, but was nonetheless incorrect. In Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir.
2012), we held that a district court erred by requiring that a plaintiff “offer some evidence that the
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real reason for his termination was discrimination” in addition to the evidence supporting his prima
facie case and a showing of pretext. We explained:
In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court held that
judgment as a matter of law for the defendant in an employment-discrimination case
may be appropriate under certain circumstances even if the plaintiff has made out a
prima facie case of discrimination and has shown pretext. 530 U.S. 133, 148 (2000).
In other circumstances, however, a prima facie case and a showing of pretext can
support a jury verdict for the plaintiff. Id. at 147–48. “[B]ecause a prima facie case
and sufficient evidence to reject the employer’s explanation may permit a finding of
liability, [a court] err[s] in proceeding from the premise that a plaintiff must always
introduce additional, independent evidence of discrimination.” Id. at 149. Applying
the rationale of Reeves to the summary-judgment context, we have held that “to
survive summary judgment a plaintiff need only produce enough evidence to support
a prima facie case and to rebut, but not to disprove, the defendant’s proffered
rationale.” Blair v. Henry Filters, Inc., 505 F.3d 517, 532 (6th Cir. 2007), abrogated
on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), as
recognized in Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009).
The district court thus erred in assuming that [the plaintiff] had to produce
additional evidence of discrimination in order to survive summary judgment.
Summary judgment for the defendant may be appropriate even after the plaintiff has
presented evidence that the defendant’s proffered reason for the termination was false
“if the record conclusively revealed some other, nondiscriminatory reason for the
employer’s decision, or if the plaintiff created only a weak issue of fact as to whether
the employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148.
The district court did not consider any of these factors, but instead, contrary to
Reeves, “proceed[ed] from the premise that a plaintiff must always introduce
additional, independent evidence of discrimination” after showing pretext. Id. at 149.
Id. at 593–94 (internal citations altered; most alterations in original).
In the instant case, the district court quoted language from Hicks, where the Supreme Court
stated that “a reason cannot be proved to be a pretext for discrimination unless it is shown both that
the reason was false, and that discrimination was the real reason.” 509 U.S. at 515 (internal
quotation marks omitted). However, as we observed in Griffin:
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The question in Hicks was whether a showing of pretext “mandates a finding for the
plaintiff,” 509 U.S. at 504, which is a different question from what a plaintiff has to
show to survive summary judgment.
The ultimate question of fact in a Title VII race-discrimination case is, of
course, whether the defendant discriminated against the plaintiff on the basis of race.
Racial animus is not the only inference that can be drawn from evidence that the
proffered reason for an adverse employment action was pretext. Evidence that the
employer’s proffered reason for the termination was not the actual reason thus does
not mandate a finding for the employee, Hicks, 509 U.S. at 511, but is enough to
survive summary judgment, see Blair, 505 F.3d at 532. The jury can decide whether
racial animus was the actual reason for [the plaintiff]’s termination.
689 F.3d at 594 (internal citations altered). Thus, to the extent prior case law suggests that to survive
summary judgment a plaintiff must do more than sufficiently call into question the employer’s
proffered reasons for its employment decision, see, e.g., Pierce, 40 F.3d at 804–05 (applying Hicks
rule to summary judgment), it is no longer the law of this circuit in light of Reeves.
D.
Although the district court misstated the law, this error does not warrant reversal. The court
correctly held that Carter failed to establish pretext. To show pretext at the summary judgment stage,
“the plaintiff 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 his discharge,
or (3) that they were insufficient to motivate discharge.” Manzer v. Diamond Shamrock Chems. Co.,
29 F.3d 1078, 1084 (6th Cir. 1994) (emphasis and internal quotation marks omitted), abrogated on
other grounds by Gross, 557 U.S. 167, as recognized in Geiger, 579 F.3d at 621. “The first type of
showing is easily recognizable and consists of evidence that the proffered bases for the plaintiff’s
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discharge never happened, i.e., that they are factually false.” Manzer, 29 F.3d at 1084 (emphasis and
internal quotation marks omitted). Under the second type of showing,
the plaintiff attempts to indict the credibility of his employer’s explanation by
showing circumstances which tend to prove that an illegal motivation was more
likely than that offered by the defendant. In other words, the plaintiff argues that the
sheer weight of the circumstantial evidence of discrimination makes it “more likely
than not” that the employer’s explanation is a pretext, or coverup.
Id. (emphasis omitted). Carter does not assert that TAI’s articulated reasons were insufficient under
the third type of showing.
1. There is no triable issue whether TAI’s proffered reasons have a factual basis
Contrary to Carter’s argument, TAI’s proffered reasons for firing him have a factual basis.
Carter’s argument on this point primarily consists of his assertions that he had led the IT department
through successful projects; had met and exceeded the expectations of his first supervisor, Wiener;
and, before working at TAI, had a successful work history in the IT field. He does not, however,
dispute the evidence TAI cites in support of its proffered reasons. The 2007 Viewpoint Employee
Opinion Survey contained unfavorable responses regarding Carter’s leadership of the IT department,
including a mere twenty-seven percent satisfaction rate with Carter’s performance as the department
head. At his deposition, Carter did not dispute the unfavorable nature of the survey response.
Further, although the 360 Report was a confidential document during Carter’s employment (and thus
its results cannot be cited as a reason for his termination), the report corroborates TAI’s position that
Carter had perceived leadership deficiencies before Keiser became his direct supervisor, and that
Wiener viewed Carter’s leadership abilities less favorably than Carter asserts.
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Although the parties disagree about the reason Wiener asked Carter to participate in
executive coaching, the district court properly concluded that such dispute was immaterial. Carter
does not dispute that the coaching program was overhauled, early on, to address Wiener’s immediate
concerns. At his deposition, Carter conceded that Wiener had felt that he needed improvement in
several leadership skills. Carter also conceded that Wiener had expressed concerns that he lacked
a vision or strategy for the IT department. Moreover, Carter has not proffered evidence to refute
specific instances of his alleged deficient performance.
Given TAI’s evidence supporting its reasons for firing Carter and Carter’s failure to identify
any material dispute as to the falsity of such evidence, his focus on his accomplishments is more
properly brought under the second type of pretext showing.
2. There is no triable issue whether TAI’s proffered reasons did not actually motivate its
decision
Employers are entitled to “greater flexibility” in management-level employment decisions,
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987), and we do not “act[] as a super personnel
department, overseeing and second guessing employers’ business decisions.” Bender v. Hecht’s
Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006) (internal quotation marks omitted). However, “[w]e
recognize . . . that decisions made on the basis of subjective criteria, such as whether an employee
is an effective manager, can provide a ready mechanism for discrimination, and thus such decisions
are carefully scrutinized.” Idemudia v. J.P. Morgan Chase, 434 F. App’x 495, 504–05 (6th Cir.
2011) (unpublished) (internal quotation marks omitted); see Hedrick v. W. Reserve Care Sys., 355
F.3d 444, 461 (6th Cir. 2004). “An employer’s business judgment . . . is not an absolute defense to
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unlawful discrimination.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003)
(en banc). “[T]he reasonableness of an employer’s decision may be considered to the extent that
such an inquiry sheds light on whether the employer’s proffered reason for the employment action
was its actual motivation.” Id. To show pretext on this basis, Carter must show that TAI’s “business
decision was so lacking in merit as to call into question its genuineness.” Hartsel v. Keys, 87 F.3d
795, 800 (6th Cir. 1996) (internal quotation marks omitted).
Carter points to evidence suggesting that he met and possibly even exceeded company
expectations in some respects. For example, both Keiser and Wiener spoke of Carter’s positive
qualities, and Keiser conceded that TAI suffered no objective harm from having Carter as the IT
department head. Although there is a factual dispute over whether Wiener gave Carter favorable
written reviews, Carter asserts that: 1) his salary increases from 2003 to 2007 reflect that Wiener2
As to the purported reviews, the district court stated:2
Plaintiff urges the [c]ourt to make an adverse inference from what [he] alleges is
Defendant’s spoliation of Carter’s previous favorable performance reviews, rendered
by Mr. Wiener. The [c]ourt notes that, even if favorable written reviews are
presumed to exist . . . the [c]ourt’s resolution of this issue does not change.
Carter, 2012 WL 786344, at *7 n.1. In a footnote in the background section of his opening brief,
Carter reasserts that TAI “withheld or discarded” favorable reviews he received from 2002 to 2007.
He relies on his own assertion that he received written reviews and the fact that Keiser has received
written reviews. He then cites spoilation cases that concern missing evidence instructions and
adverse inferences drawn against a party that engages in spoilation. Generally, an argument raised
in a footnote without further development is deemed waived. See United States v. Johnson, 440 F.3d
832, 845–46 (6th Cir. 2006). In any event, even assuming that Carter preserved this argument and
that written reviews once existed, the fact that Wiener may have favorably rated Carter’s work earlier
does not obviate the fact that Wiener was also critical of Carter’s management skills and does not
establish that Carter continued to meet the company’s legitimate expectations.
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favorably viewed his performance, as salary increases were generally tied to performance; 2) the3
company invested $10,000 in providing him with executive coaching—arguably a sign that the
company saw him as having long-term potential; and 3) he implemented successful IT changes
during his tenure, such as the help-desk tracking system.
Nevertheless, that Carter had been a successful employee and may have even exceeded
company expectations in certain respects does not establish that TAI’s proffered reasons for firing
him were unreasonable, let alone pretext for illegal discrimination. Even if Wiener rated him
favorably in the past, this does not establish that Carter continued to meet company expectations.
See Wright v. Sears, Roebuck & Co., 81 F. App’x 37, 42–43 (6th Cir. 2003) (unpublished)
(explaining that positive reviews from prior managers did not demonstrate that the plaintiffs had met
the legitimate expectations of new management); cf. Strickland v. Fed. Exp. Corp., 45 F. App’x 421,
424 (6th Cir. 2002) (unpublished) (noting, in the context of determining whether a plaintiff is
qualified, that prior favorable reviews may suffer from “staleness,” as the employee’s performance
may change or the employer’s expectations may change). Further, Carter does not dispute that
Wiener also criticized his leadership ability and that the coaching program was overhauled due to
Wiener’s immediate concerns about his management skills. To the extent Carter characterizes
Keiser’s criticisms as subjective, he does not dispute the specific instances of his perceived
deficiencies or the objective evidence such as the 2007 Viewpoint Employee Opinion Survey.
For three of five years while under Wiener’s supervision, Carter’s salary increases were at3
or below the 3.5 percent target increase for employees meeting expectations, which is more
consistent with Wiener’s testimony that he gave Carter “midline” performance ratings.
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No. 12-5384
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Moreover, the evidence does not otherwise suggest a discriminatory motive. At his
deposition, Carter conceded that neither Wiener nor Keiser made offensive race- or age-based
comments to him. Also, Morgan testified that his supervisors wanted him to succeed. Insofar as
Carter opines that Keiser’s overlooking of his accomplishments was based on a discriminatory
motive, conclusory allegations are insufficient to sustain a claim. See Mitchell v. Toledo Hosp., 964
F.2d 577, 585 (6th Cir. 1992). And the district court correctly observed a more plausible reason for
Keiser’s criticism of Carter’s management skills:
Aside from the fact that TAI had grown and its IT needs had expanded, the [c]ourt
notes what it finds to be a logical explanation for Plaintiff’s feeling that Keiser, as
opposed to Mr. Wiener, was especially critical of Plaintiff’s work performance. Prior
to Keiser’s becoming Vice President/General Manager of Management Systems,
Internal Audit and Consulting, Plaintiff’s direct supervisor was located in New York
while Plaintiff was working in Georgetown, Kentucky. Although Plaintiff saw
Wiener occasionally, the interaction between the two men was limited and was
mainly through email and telephone calls. Wiener’s absence from the company’s
Georgetown location made it impossible for him to monitor Plaintiff’s day-to-day
performance to the same degree as Keiser, once he became Plaintiff’s supervisor.
Carter, 2012 WL 786344, at* 7.
Also, Carter overlooks the fact that his termination was not solely in Keiser’s hands.
Although Keiser recommended Carter’s termination to Wiener, it was ultimately Wiener—the TAI
officer who recommended Carter’s initial hire—who approved Carter’s termination. We do not
conclude that a supervisor’s discriminatory motive is obviated when upper management approves
an employee’s termination; however, given the prior relationship between Wiener and Carter, and
that Carter’s case for pretext centers on his alleged good performance under Wiener, Wiener’s
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approval of Carter’s termination undercuts the argument that there was a discriminatory motive for
TAI’s termination decision.
In conclusion, Carter has failed to create a triable issue on pretext, and he cannot proceed to
trial based on a subjective disagreement with TAI’s business judgment. See Hedrick, 355 F.3d at
462.
III.
For the foregoing reasons, we AFFIRM the district court’s judgment.
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