Carolyn Carter v. University of Toledo

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0401P (6th Cir.)
File Name: 03a0401p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CAROLYN CARTER,
Plaintiff-Appellant,
v.
UNIVERSITY OF TOLEDO,
Defendant-Appellee.
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
Before: KEITH, DAUGHTREY, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: John D. Franklin, LAW OFFICES OF JOHN D.
FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant.
Cheryl F. Wolff, SPENGLER NATHANSON, Toledo, Ohio,
for Appellee. ON BRIEF: John D. Franklin, LAW
OFFICES OF JOHN D. FRANKLIN & ASSOCIATES,
Toledo, Ohio, for Appellant. Cheryl F. Wolff, Theodore M.
2 Carter v. University of Toledo No. 02-3842
Rowen, SPENGLER NATHANSON, Toledo, Ohio, for
Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Dr. Carolyn
Carter, who is African-American, brought suit against her
former employer, the University of Toledo, alleging that the
University failed to renew her contract as a visiting professor
because of her race. The district court granted the
University’s motion for summary judgment, concluding that
Carter had failed to show any direct evidence of
discrimination and had also failed to establish that the
legitimate, nondiscriminatory reasons given by the University
for not renewing her contract were a pretext to disguise racial
discrimination. For the reasons set forth below, we
REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.
I. BACKGROUND
The University of Toledo hired Carter in January of 1996
as an Assistant Professor of Curriculum and Instruction in the
University’s College of Education. Carter’s assistant
professorship was a tenure-track faculty position. In October
of 1996, the University’s Personnel Committee recognized
Carter as having shown “good progress in her teaching,
professional activities and service.” The Personnel
Committee unanimously recommended that her faculty
appointment be renewed. Professor James R. Gress, the
chairman of Carter’s department, echoed the Committee’s
sentiments in his support for Carter’s reappointment.
As a result of these favorable recommendations, the
University renewed Carter’s appointment for two years and
awarded her a merit pay increase. Carter, however,

-- 1 of 7 --

No. 02-3842 Carter v. University of Toledo 3
voluntarily resigned from her tenure-track faculty position in
May of 1997 to take an administrative position in the Jackson,
Michigan school district. She left the University in July of
1997 after teaching the first of the summer school sessions.
Due to another change in career plans, Carter returned to
the University of Toledo as a visiting faculty member for the
1999-2000 academic year. Dr. Charlene Czerniak, who was
then Interim Dean of the College of Education, extended
Carter an offer for the visiting professorship in the
Educational Administration and Supervision (EDAS)
program in the College of Education’s Department of
Foundations and Leadership. Carter accepted the
appointment in the EDAS program, as did three other visiting
professors—Louis Barsi, Brenda Lanclos, and Richard St.
John—who were all Caucasian.
The University did not renew Carter’s visiting-professor
appointment after the 1999-2000 academic year. In July of
2000, Carter sent an e-mail message to Czerniak inquiring
about the renewal of her contract with the University for the
following year. Czerniak responded that the University had
met its hiring needs for the year and would not be extending
Carter’s appointment.
Carter was not the only visiting professor whose contract
was not renewed for the 2000-2001 academic year. Neither
St. John, who like Carter was teaching in the EDAS program,
nor Mary Anne Stibbe, a visiting professor in the College of
Education’s Department of Curriculum and Psychological
Studies, were reappointed for 2000-2001. Both St. John and
Stibbe are Caucasian.
Barsi and Lanclos, the other two EDAS visiting professors,
were rehired for the following academic year, but not in the
EDAS program. Three new visiting professors were hired in
the EDAS program for the 2000-2001 academic year. One
was Bunk Adams, who is African-American, and the other
4 Carter v. University of Toledo No. 02-3842
two were Sandra McKinley and Robin Rayfield, both
Caucasian.
When she had not heard anything about the renewal of her
visiting professorship, Carter contacted Dr. Earl Murry, the
University’s Vice Provost. Murry’s duties as Vice Provost
included acting as chief negotiator for the faculty’s collective
bargaining agreements, coordinating faculty recruiting, hiring,
training, and orientation, advising the Provost on tenure and
promotions, reviewing salary matters, and ensuring
compliance with affirmative action requirements. According
to Carter, Murry said that he would investigate the matter and
get back to her. When Murry did not promptly get in touch
with Carter, she called him back to ask whether he had any
information about the renewal of her contract.
Murry told Carter that he had not yet discussed the issue
with Czerniak, and then, according to Carter, volunteered that
“[Czerniak] is trying to whitewash the college of education
and I am not going to let her do this.” Carter also asserts that
Murry “told me that [Czerniak] was trying to get rid of the
black professors and that he was in a struggle with her
involving the appointment of an additional black professor.”
When she contacted him a third time to find out whether her
appointment would be renewed, Carter claims that Murry said
“I don’t know what’s going on, they’re a bunch of racists over
there.” Murry denies making any of these statements.
Carter sued the University of Toledo in June of 2001. She
alleged that the University discriminated against her because
of her race in violation of 42 U.S.C. §§ 2000(e)-2000(e)-17
(Title VII), 42 U.S.C. § 1981, and Ohio Revised Code
§ 4112.02 and § 4112.99. Carter also claimed that the
University subjected her to a racially hostile work
environment in violation of Title VII and Ohio law. The
University moved for summary judgment, arguing that Carter
had failed to present either direct or circumstantial evidence
of racial discrimination, and asserting that her hostile work

-- 2 of 7 --

No. 02-3842 Carter v. University of Toledo 5
environment claims were without merit because she had not
presented any evidence supporting these claims.
In June of 2002, the district court granted the University’s
motion for summary judgment. Carter filed a timely appeal.
In her briefs on appeal, however, Carter does not address the
district court’s ruling on her claims of a racially hostile work
environment. We therefore consider those arguments waived.
See Farm Labor Org. Comm. v. Ohio State Highway Patrol,
308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is well established
that an issue not raised in a party’s briefs may be deemed
waived.”).
II. ANALYSIS
A. Standard of review
We review a district court’s grant of summary judgment de
novo. Therma-Scan, Inc. v. Thermoscan, Inc. 295 F.3d 623,
629 (6th Cir. 2002). Summary judgment is proper where
there exists no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). In considering a motion for summary judgment, the
district court must construe all reasonable inferences in favor
of the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central
issue is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).
B. Direct evidence of discrimination
We shall consider Carter’s federal and state-law
discrimination claims under the Title VII framework because
Ohio’s requirements are the same as under federal law. See
Ohio Civil Rights Comm’n v. Ingram, 630 N.E.2d 669, 674
(Ohio 1994). To establish a Title VII employment
6 Carter v. University of Toledo No. 02-3842
discrimination claim, Carter was required to either “present
direct evidence of discrimination or introduce circumstantial
evidence that would allow an inference of discriminatory
treatment.” Johnson v. Kroger Co., 319 F.3d 858, 864-65
(6th Cir. 2003). Carter argues that the alleged comments
made by Murry constitute direct evidence of discrimination.
She points to three comments purportedly made by him:
(1) that Czerniak was “trying to whitewash the College of
Education” faculty, (2) that Murry was struggling with
Czerniak to appoint African-American professors, and (3) that
“the decision-makers at the College of Education are a bunch
of racists.”
The district court began its analysis by considering whether
or not Carter would be allowed to testify as to these
comments allegedly made by Murry. We do not need to
address this evidentiary issue with regard to our analysis of
the direct-evidence argument, however, because even if
Murry’s comments are admissible as nonhearsay, they do not
constitute direct evidence of discrimination against Carter
under controlling Sixth Circuit precedent.
This court has held that comments made by individuals
who are not involved in the decision-making process
regarding the plaintiff’s employment do not constitute direct
evidence of discrimination. See Hopson v. DaimlerChrysler
Corp., 306 F.3d 427, 433 (6th Cir. 2002) (holding that a
company manager’s opinion that “race was a factor” in the
company’s decision not to promote the plaintiff was not direct
evidence for purposes of the plaintiff’s discrimination claim
because the manager had “no involvement in the decision-
making process with respect to the particular jobs at issue”).
Murry was not a decision-maker with regard to the renewal of
Carter’s visiting professorship. His statements therefore
cannot be considered direct evidence of racial discrimination
against Carter.

-- 3 of 7 --

No. 02-3842 Carter v. University of Toledo 7
C. Circumstantial evidence
Where a plaintiff fails to present direct evidence of
discrimination, the burden-shifting framework first articulated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and refined by Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981), applies. Johnson, 319 F.3d at
865-66. The plaintiff must first present a prima facie case of
discrimination. Id. at 866. Establishing a prima facie case
creates a rebuttable presumption of discrimination, and the
burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for taking the challenged
employment action. Id. If the defendant satisfies this burden,
the plaintiff “must then prove that the proffered reason was
actually a pretext to hide unlawful discrimination.” Id.
(internal citation omitted).
To establish a prima facie case of discrimination, a plaintiff
must show that (1) she is a member of a protected group,
(2) she was subject to an adverse employment decision,
(3) she was qualified for the position, and (4) she was
replaced by a person outside of the protected class. Kline v.
Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997).
The University does not dispute that Carter could establish a
prima facie case of race discrimination.
In response, however, the University offered the following
“legitimate, nondiscriminatory reasons” for not retaining
Carter as a visiting professor:
1. Carter did not apply for a regular tenure track faculty
position in the EDAS program when one was
advertised in 2000.
2. Carter, whose regional educational experience was
based upon her work in Michigan, did not have the
appropriate Ohio connections to aid in University
recruiting.
8 Carter v. University of Toledo No. 02-3842
3. Carter spent approximately half of her time in the
1999-2000 academic year providing consulting
services to the operators of charter schools in
Detroit.
4. Carter was occasionally unavailable to students due
to her charter school activities.
The burden thus shifted back to Carter to show that the
University’s reasons were pretextual. St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 508 (1993). Determining
whether the reasons proffered by an employer are pretextual
requires a heightened examination of “the specific proofs and
rebuttals of discriminatory motivation the parties have
introduced.” Id. at 516. To demonstrate pretext, a plaintiff
may show that the defendant’s proffered reason “(1) has no
basis in fact, (2) did not actually motivate the defendant’s
challenged conduct, or (3) was insufficient to warrant the
challenged conduct.” Seay v. Tennessee Valley Auth., 339
F.3d 454, 463 (6th Cir. 2003) (internal citations omitted).
Carter puts forth two arguments as to why the University’s
proffered reasons for not renewing her contract “did not
actually motivate the defendant’s challenged conduct.” See id.
First, she contends that Murry’s alleged comments concerning
the “bunch of racists” at the University and Czerniak’s
purported attempt to “whitewash the faculty” show that the
above reasons were pretextual. Second, Carter points out that
two similarly situated Caucasian visiting professors in the
EDAS program had their contracts renewed.
Carter’s stronger argument is that Murry’s alleged
comments demonstrate that the University’s proffered reasons
did not actually motivate its conduct. To analyze Carter’s
argument on this point, we must decide whether Carter would
be allowed to testify at trial regarding Murry’s alleged
comments. If the comments are deemed to be hearsay, then
the evidence could not be considered on summary judgment.
See Jacklyn v. Schering-Plough Healthcare Prods. Sales

-- 4 of 7 --

No. 02-3842 Carter v. University of Toledo 9
Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“Hearsay evidence
may not be considered on summary judgment.”). Whether the
proffered evidence is hearsay under the Federal Rules of
Evidence is a question of law that we review de novo. Id.
The district court found that Murry’s alleged comments as
offered by Carter in her deposition were admissible as
nonhearsay under Rule 801(d)(2)(D) of the Federal Rules of
Evidence. This rule provides, in relevant part, that a
“statement is not hearsay if . . . [t]he statement is offered
against a party and is . . . a statement by the party’s agent or
servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.”
Although the district court concluded that the alleged
comments would be admissible as nonhearsay, it reasoned
that the purported remarks were too isolated to show pretext
on the part of the University.
The University defends the district court’s basis for
discounting the proffered testimony, but also argues that the
alleged comments do not satisfy the requirements of Rule
801(d)(2)(D) because “[t]he record is clear that Murry had
nothing to do with the College of Education’s substantive
decisions regarding the hiring and retention of visiting
professors.” Its position appears to be that only statements
made by declarants who are direct decision-makers
concerning the adverse employment action at issue can
qualify as nonhearsay under Rule 801(d)(2)(D).
The University cites Hill v. Spiegel, Inc., 708 F.2d 233 (6th
Cir. 1983), to support its argument. In Hill, the court
discussed the application of Rule 801(d)(2)(D) in an age
discrimination case. Spiegel, the well-known mail order
company, had terminated Emery Hill, who was 56 years old
at the time and a regional manager of Spiegel’s catalog-order
division. In appealing an adverse jury verdict against it,
Spiegel argued that the admission of testimony given by
Matthew Baker was erroneous. Baker, a former district
manager at Spiegel, testified on Hill’s behalf to conversations
10 Carter v. University of Toledo No. 02-3842
that he had had with other Spiegel employees about Hill’s
termination. According to Baker, three Spiegel employees
told him that Hill had been discharged because of his age.
The court held that “there was no basis for finding that the
statements of these declarants concerned ‘a matter within the
scope of [their] agency,’” reasoning that there was no
evidence that any of the declarants were involved in the
decision to terminate Hill. Id. at 237 (alteration in original).
At first glance the holding appears to support the
University’s argument that only comments by direct decision-
makers can qualify as nonhearsay under Rule 801(d)(2)(D).
The court’s analysis, however, went beyond the simple
question of whether the declarants were direct decision-
makers. It looked to the scope of each declarant’s
employment and noted that there was one “about whose
duties and responsibilities [the plaintiff] testified he was
uncertain,” a second who became a regional manager of
Spiegel’s catalog order division after Hill was discharged,
and a third whose job was unrelated to Hill’s. Id. The court
concluded that “[t]he mere fact that each of these men was a
‘manager’ within the expansive Spiegel organization is
clearly insufficient to establish that matters bearing upon
Hill’s discharge were within the scope of their employment.”
Id. Whether a statement qualifies as nonhearsay under Rule
801(d)(2)(D), therefore, goes beyond simply determining if
the declarant is a direct decision-maker with regard to the
adverse employment action.
In addition to Hill, two other Sixth Circuit cases support
this broader reading of Rule 801(d)(2)(D). This court rejected
an employer’s argument that statements made by someone
who was not a direct decision-maker were irrelevant in
Johnson v. Kroger Co., 319 F.3d 858, 868 (6th Cir. 2003).
The court reasoned that “[a]lthough remarks made by an
individual who has no authority over the challenged
employment action are not indicative of discriminatory intent,
the statements of managerial-level employees who have the
ability to influence a personnel decision are relevant.” Id.

-- 5 of 7 --

No. 02-3842 Carter v. University of Toledo 11
And in Jacklyn v. Schering-Plough Healthcare Products
Sales Corp., 176 F.3d 921, 928 (6th Cir. 1999), this court
considered whether the declarant was “involved in any of the
critical appraisals of [plaintiff’s] performance that preceded
her leaving work,”—not whether the declarant was a direct
decision-maker—in determining if the declarant’s remarks
qualified as nonhearsay under Rule 801(d)(2)(D). Being a
direct decision-maker, of course, constitutes strong proof that
a statement was made within the scope of employment, but
the “scope of employment” criterion extends beyond direct
decision-makers.
We also note that our prior decisions are consistent with the
reasoning of the Seventh Circuit in Williams v. Pharmacia,
Inc., 137 F.3d 944 (7th Cir. 1998), where the court rejected
the employer’s argument that
an employee’s statement regarding a particular action of
the employer qualifies as a vicarious admission under
Rule 801 only if the employee-declarant was involved in
the decisionmaking process leading up to the employer’s
action. . . . The precise reach of Rule 801(d)(2)(D) is
sometimes difficult to discern, as there has been
considerable debate about the justification for classifying
various admissions as non-hearsay. We are reluctant to
follow [the employer’s] suggestion and read into the rule
a generalized personal involvement requirement,
especially in light of the Advisory Committee’s
admonition that the freedom which admissions have
enjoyed . . . from the restrictive influences of . . . the rule
requiring firsthand knowledge . . . calls for generous
treatment of this avenue to admissibility.
Id. at 950 (quotation marks and internal citations omitted).
The district court distinguished Hill from the instant case
by reasoning that “[a]lthough Murry did not have direct
authority to decide whether Carter’s appointment was
renewed, his oversight of the affirmative action process at the
12 Carter v. University of Toledo No. 02-3842
University places his statements concerning the racial
composition of the workforce within the ambit of his
authority.” Indeed, Murry testified that he ensures that the
deans comply with affirmative action requirements when
hiring faculty. We agree with the district court’s analysis on
this point and conclude that because Carter has shown that
Murry’s comments were within the scope of his employment,
Murry’s alleged comments are admissible nonhearsay. Fed.
R. Evid. 801(d)(2)(D).
We are thus left with the question of whether the district
court erred in discounting Murry’s alleged comments because
they were “isolated.” See, e.g., Ercegovich v. Goodyear Tire
& Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998) (“Isolated
and ambiguous comments are too abstract, in addition to
being irrelevant and prejudicial, to support a finding of age
discrimination.”) (internal quotation marks and citations
omitted). The district court gave no explanation for its
conclusion on this point, and we respectfully disagree that the
alleged comments can be so categorized. They were allegedly
made in direct response to Carter’s inquiries as to why she
was not rehired. Under these circumstances, we find no
justification to regard them as isolated.
In sum, we conclude that a genuine issue of material fact
exists as to whether Carter can show pretext on the part of the
University. We recognize that, but for Murry’s alleged
comments, Carter’s claims would not likely survive summary
judgment. But if the jury were to believe that Murry in fact
made the remarks attributed to him, then they might find that
the University’s proffered reasons “did not actually motivate
the defendant’s challenged conduct.” Seay v. Tennessee
Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003). This is a
credibility determination that must be resolved by the
factfinder, not by the court as a matter of law. We therefore
conclude that the district court erred in granting the
University’s motion for summary judgment.

-- 6 of 7 --

No. 02-3842 Carter v. University of Toledo 13
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
district court’s grant of summary judgment in favor of the
University and REMAND for further proceedings consistent
with this opinion.

-- 7 of 7 --