Opinion
No. 00-74424
November 7, 2002
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
1. Introduction
This is an employment case claiming age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., and Michigan's Elliot-Larsen CiviL Rights Act (ELCRA), MSA § 3.548(101) et seq. Plaintiff Howard Sherman (Sherman) alleges that defendant DaimlerChrysler Corporation (DCC) did not promote him to a supervisory position in April, 2000 because of his age, 55 at the time, and in retaliation for his previous suit against DCC for age discrimination. He also claims that DCC has an ongoing pattern and practice of discrimination against him based on his age. For relief he seeks lost wages and benefits, lost past and future retirement benefits, compensatory damages, punitive and exemplary damages, interest, costs, attorney fees, an order directing DCC to place him in the position he would have held had there been no discrimination, an injunction prohibiting DCC from any further acts of discrimination, and other equitable relief that appears appropriate.
Sherman said at oral argument that his suit also encompassed DCC's failure to promote him in 1999. His complaint mentions only the 2000 position and his response in opposition to DCC's motion for summary judgment discusses only the failure to promote him for the 2000 position. The failure to promote in 1999 is therefore not a separate claim, though the facts relating to it are relevant to the claim of an ongoing pattern and practice of discrimination.
Before the Court is DCC's motion for summary judgment. For the reasons that follow, DOG's motion is GRANTED.
Both parties are admonished for failing to follow the Court Motion Practice Guidelines, See http://www.mied.uscourts.gov/_practices/cohn/toc.htm.
II. Factual Background
The following material facts are gleaned from the parties' papers.
A. Background Information
Sherman was born April 8, 1945. DCC (then ChrysLer) hired Sherman in June or July of 1988 as an entry level Product Engineer in the Steering and Suspension Department. In 1991 he became a Steering System Coordinator.
In approximately 1991 DCC began a new system of self-nomination for job openings. DCC posted position openings internally, and workers could self-nominate by submitting an application for the position electronically. Sherman applied for over 12 promotions from 1991 to 2000, all of which were awarded to younger applicants.
In September 1995 Sherman applied for and received a transfer out of Steering and Suspension to Liberty Technical Affairs as a Product/Project Engineer. In that position, Sherman supervised and annually reviewed three or four contract designers and lab technicians. He did not have authority to hire or fire anyone. Sherman applied for and received another transfer in September 1999, this time to "Advance Vehicle Engineering's at the Chrysler Tech Center where he worked as a Product Engineer.
Sherman filed a complaint with the Equal Employment Opportunity Commission (EEOC) on April 8, 1994, alleging that he was passed over for promotion because of his age. After receiving a poor performance review on January 24, 1995, he filed a complaint with the EEOC on February 1, 1995 alleging that his performance review was an act of retaliation for his 1994 complaint and was also based on age discrimination.
On June 13, 1997, Sherman filed an age discrimination and retaliation lawsuit with the district court (Sherman I) based on DCC's failure to promote him on several separate occasions and his negative performance review. Howard Sherman v. Chrysler Corp., Case No. 97-73105. Chrysler was awarded summary judgment on Sherman's claim of age discrimination with regard to the performance review and his ELCRA claims based on incidents that had occurred prior to June 23, 1994, because those claims were barred by the three-year Michigan statute of limitations. On March 20, 2000 the district court dismissed Sherman's ADEA claims as to all incidents of failure to promote, except one incident in 1994, based on failure to exhaust his administrative remedies. It also granted summary judgment on Sherman's claims concerning denials of lateral transfers because they did not show an adverse employment action. Sherman's remaining claims of age discrimination and retaliation based on the failure to promote for three specific positions were tried to a jury in July 2000. The jury found for Chrysler on all claims, and the judgment was affirmed by the Sixth Circuit Court of Appeals. Sherman v. Chrysler Corp., 2002 WL 31074591 (6th Cir. Sept 16, 2002).
B. DCC's Alleged Policy of Preferring to Promote Women, Minorities, and Younger Engineers
Sherman says he observed a company practice of promoting women, minorities, and younger persons for available engineering positions. He also says that Senior Engineer Al Cherundolo (Cherundolo) told him in 2000 that Senior Human Resources Generalist Chris Doan (Doan) admitted that such a policy existed. In affidavits, however, both Cherundolo and Doan deny that they ever made such statements.
Sherman also points to the deposition testimony of Jack Broomall (Broomall), Manager of Small Car Platform Steering and Suspension and one of Sherman's supervisors, who stated that DCC thought it was important to develop young people and that one young engineer was promoted over Sherman based in part on his "flair for developing and motivating young people." Sherman argues that DCC also favored young people for recruitment and advertising, with a special preference for candidates fresh out of the Chrysler Institute of Engineering Program. Broomall testified that these students were preferred because of their "exceptional learning abilities" and "growth capability."
William Cornish (Cornish), the supervisor with the authority to choose the applicant for the position at issue here, selected 14 people for positions from 1998 to 2001, and the average age of those people was approximately 36.
The record includes a list of the names of the applicants for each of these positions and the date of birth of the successful applicant, but not the ages of the unsuccessful applicants or any detail about the positions.
C. DCC's Failure to Promote Sherman to Senior Engineer/Supervisor: 1999
DCC internally posted a position opening for "Senior Engineer/Supervisor — Small Car Platform Steering" in 1999, and employees nominated themselves for it. Cornish wrote the "Open Position Notice" describing the position and the necessary applicant qualifications, interviewed the candidates, and selected the person to fill the position. Sherman says he was the most knowledgeable engineer within Chrysler with respect to the steering system used on the job (the Neon) and that he was qualified for the position. He was not afforded an interview, however, and the position was offered in March 1999 to 39 year old Mike Raymond, who had never worked in small car steering and suspension. Cornish exclusively interviewed candidates in their 30s. Cornish also admits he did not know the extent of Raymond's design experience in suspension or steering when he hired him.Cornish says he gave Raymond the position because he had strong supervisor skills, had good experience resolving production problems, and had been a resident engineer in the assembly plant. Garnish said that supervisor skills were important to this position. Sherman did not file a grievance, complaint, or an EEO charge regarding the award of the position to Raymond.
D. DCC's Failure to Promote Sherman to Senior Engineer/Supervisor: 2000
Raymond was later promoted and the same position became vacant in March 2000. Open Position Notice No. 430-93-19965, the posting for the position, remained the same; its description of the work stated, "supervise Chrysler, contract and supplier engineers for the design and development of steering systems, wheels and wheel covers." Cornish was again the decision-maker in filling the position.
There were 34 applicants for the position. There is some question as to who Cornish interviewed, but he definitely interviewed four people and possibly at least two more. He did not interview Sherman. Garnish interviewed only persons in their 3Os for the position, with one exception; the average age of the applicants not interviewed was 43. None of the five applicants over age 45 was interviewed, Cornish then gave 34 year old Michael Weaver the position.
Cornish says he did not interview Sherman because he lacked the skill set and management style for the supervision of the outside contract engineers from TRW, one of DCC's suppliers. Cornish says he had received complaints from TRW employees that Sherman did not give them the latitude they needed to perform detailed design work when they worked with Sherman. Cornish also remembers that he counseled Sherman regarding his managerial approach after receiving the complaints. He also says Sherman's extensive steering engineering experience was not that important because the position involved new car designs that were different from the Neon, the car on which Sherman had considerable experience.
The papers do not indicated the full name of TRW.
Cornish says he gave Weaver the position because he had experience in steering and suspension, exhibited a good "hands-off" supervisor style, and illustrated that he could handle multiple tasks simultaneously. Cornish said that supervisory skills were particularly important to the position and that technical expertise was not as important, so Weaver was a better candidate than Sherman.
Sherman argues that Cornish's stated reasons for passing him over are false. He says Weaver was not as qualified for the position because he had minimal steering experience (which Cornish admits), while Sherman had years of steering experience. Cornish says that the steering gear for the open position was different from that of the Neon, the car on which Sherman had experience. Sherman disputes that statement; he says be steering gears for each car were based on the same model. Sherman also points out that he had more steering experience than any one interviewed.
Sherman also emphasizes that Cornish interviewed younger applicants with significantly less steering experience than he had, including a Mr. Esposito, 35, who had no steering experience. It is DCC's argument, however, that Sherman was an inferior applicant based on his management skills, not his lack of experience, so Sherman's evidence in this regard appears irrelevant.
Sherman also contests Cornish's reasons regarding managerial style. Sherman says TRW employees never complained about him, and furthermore, he says he was not even in the department when TRW was on site and by 1995, the time of the alleged complaints, there was no detailed design work left to be performed and TRW employees were not on site. Sherman also points out that Cornish admits he interviewed younger applicants without knowing the specifics of their backgrounds as supervisors.
E. Later Events
Sherman filed a timely charge of discrimination against DCC with the Equal Employment Opportunity Commission (EEOC) on or about May 12, 2000, complaining of age discrimination and retaliation. In the charge he says that he was deprived of an interview and denied placement in the Senior Engineer/Supervisor — Small Car Platform Steering position that he applied for on March 30, 2000. After receiving a "right to sue" letter from the EEOC, Sherman fled suit on October 4, 2000, asserting violations of the ADEA and the ELCRA.
Earlier, as mentioned above, during July 2000, this Court hosted an eight-day jury trial, Sherman I, in which Sherman unsuccessfully attempted to prove that DCC had discriminated against him by depriving him of certain promotional opportunities, and had retaliated against him for complaining about alleged age discrimination by depriving him of promotional opportunities. See page 3, supra. The parties in Sherman I. agreed that Sherman preserved his right to litigate allegations of discrimination relating to events identified in his May 12, 2000 EEOC charge.
DCC terminated Sherman as part of a reduction in force on March 16, 2001. He was the only person in his group and department that was affected by the reduction.
III. Discussion A. Summary Judgment Standard
Summary judgment is appropriate when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court must decide "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." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In so doing, the Court "must view the evidence in the light most favorable to the non-moving party."Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98. 101 (6th Cir. 1995).
B. Law: ADEA and ERCLA 1. Discrimination
Discrimination in the workplace on the basis of age is prohibited by the ADEA, 29 U.S.C.A. §§ 621 et seq., and ERCLA, MSA § 3.548(101) et seq. The ADEA provides, in relevant part:
It shall be unlawful for an employer-
(1) To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age.29 U.S.C. § 623(a)(1). "A plaintiff who brings a claim under the [ADEA] must prove that age was a determining factor in the adverse employment action taken against him or her," Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir. 1993) ( citing Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229-30 (6th Cir. 1990).
To make out an age discrimination claim under Elliott-Larsen, a plaintiff must ultimately show that age was a determining factor in the employers adverse employment decision, though it need not be the sole, or even main, reason for the adverse action in order to give rise to a cause of action. Matras v. Amoco Oil Co., 424 Mich. 675. 682 (1985). Courts often analogize age discrimination claims under both Elliott-Larsen and the Age Discrimination in Employment Act (ADEA) to Title VII race discrimination claims. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985): Simpson v. Midland-Ross Corp., 823 F.2d 937, 940 (6th Cir. 1987); Town v. Mich. Bell, 455 Mich. 688 (1997). Michigan and the Sixth Circuit apply the same test in ADEA and ELCRA cases. Lytle v. Malady, 458 Mich. 153, 177 (1995).
There are two ways for a plaintiff to establish a case of age discrimination under the ADEA and the ELCRA; a plaintiff can show intentional discrimination (direct evidence) or disparate treatment (circumstantial evidence). Wyothal v. Tex-Tenn Corp., 112 F.3d 243, 246 (6th Cir. 1997); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (applying McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1972), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), to the ADEA). The 6th Circuit has articulated the burden of proof in discrimination cases as follows:
Under the direct evidence approach, once the plaintiff introduces evidence that the employer terminated him because of his race or other protected status, the burden of persuasion shifts to the employer to prove that it would have terminated the plaintiff even had it not been motivated by discrimination. Under the circumstantial evidence approach, the familiar McDonnell Douglas-Burdine tripartite test is employed. This paradigm requires the plaintiff to establish a prima facie case of discrimination.Johnson v. University of Cincinati, 215 F.3d 561, 572-573 (2000) (citations omitted). When a plaintiff can provide direct evidence of discrimination it is unnecessary to employ the burden-shifting analysis of McDonnell-Douglas, Trans World, 469 U.S. at 121; Downey v. Charlevoix County Bd. of Road Commissioners, 227 Mich. App. 621, 633 (1998).
In McDonnell-Douglas, the Supreme Court created a system of shifting burdens for plaintiffs without sufficient direct evidence to make a case, whereby a plaintiff alleging discrimination "must carry the initial burden under the statute of establishing a prima fade case of . . . discrimination." McDonnell-Douglas, 411 U.S. at 802. In order to make out a prima facie case of discrimination, a plaintiff must demonstrate facts sufficient to create a reasonable inference that age discrimination was a "determining factor in the employment decision. Cuddy v. Carmen, 694 F.2d 853, 866-67 (D.C. Cir. 1082): Matras v. Amoco Oil Co., 424 Mich. 675, 682 (1966). A plaintiff can create such an inference by showing that (1) he is a member of a protected class (aged 40 to 70), (2) he was subjected to an adverse employment action, (3) he was qualified for the position, and (4) a younger person filled the position. Woythal, 112 F.3d at 246; Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1996) (translating factors of McDonnell-Douglas to age discrimination); Barnell v. Taubman Co., 203 Mich. App. 110, 120 (1993).
If the plaintiff successfully establishes a prima fade case, the burden of production shifts to the defendant to articulate a non-discriminatory reason for its action. If the defendant comes up with such a reason, the plaintiff must then demonstrate by a preponderance of the evidence that the defendant's proffered reason was a pretext for age discrimination,Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001) (citations omitted); see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).
To show pretext, a plaintiff must show that the employer's reasons lack a basis in fact, that they did not truly motivate the employer, or that they were insufficient to motivate the employer. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1329-30 (6th Cir. 1994). A plaintiff may use statistics to show widespread discrimination, and the Sixth Circuit has held that even a small statistical sample can serve as circumstantial evidence of discrimination. Cicero v. Borg-Warner Automotive, Inc., 280 F.3d 579, 593 (6th Cir. 2002). The plaintiff bears the ultimate burden of proving discrimination, though, and "[t]he factfinder may not . . . focus on the soundness of an employer's business judgment."Chappell v. GTE Prod.s Corp., 803 F.2d 261, 266 (6th Cir. 1986).
2. Retaliation
The same framework is used to make a case for retaliation as for discrimination under the ADEA and ELCRA, except to establish a prima facie case of retaliation, a plaintiff must set forth facts establishing that (1) he was engaged in statutorily protected activity and (2) this participation was a significant factor in an adverse employment decision.Johnson v. Honeywell Info. Sys., Inc., 955 So.2d 409 (6th Cir. 1992);Kocenda v. Detroit Edison Co., 139 Mich. App. 721 (1984). Under the "significant factor" standard, a plaintiff must show more than a causal link between a protected activity and the employer's adverse action because "a factor can be a cause without being significant." Polk v. Yellow Freight Sys., Inc., 801 F.2d 190, 198-99 (6th Cir. 1986). Once an employee establishes a prima facie case, the court determines liability using the McDonnell-Douglas test.
C. Evidence of Prior Discriminatory Acts
As a preliminary matter, the Court must determine what evidence can be considered in weighing the merits of DCC's motion for summary judgment. Sherman claims that DCC had an ongoing pattern and practice of discrimination and has proffered evidence to prove it. DCC says it does not have such a policy and argues that the evidence Sherman has proffered should not be considered. It argues first that anything not mentioned in the EEOC complaint may not be raised now and second that the issues Sherman seeks to prove either were addressed or should have been raised in Sherman I and thus are barred by res judicata and collateral estoppel.
1. ADEA Limitations Regarding Charges as a Bar to the Evidence Under the ADEA, a plaintiff must file a charge of discrimination with the EEOC as a prerequisite to suing in court. 29 U.S.C. § 626(d). The plaintiff's suit may only cover that which is stated the EEOC charge and those claims reasonably expected to grow out of it. Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir. 1992). Sherman's EEOC charge mentions his March, 2000 application for the Senior Engineer/Supervisor position and states that he was discriminated against based on his age and in retaliation for his prior lawsuit. Sherman now says that his 1999 application for the same position and DCC's failure to promote him then are evidence of DCC's pattern and practice of denying him promotional opportunities on account of his age. DCC says that there is nothing in the EEOC charge that would lead to an inference that the alleged discrimination against him was ongoing and therefore the 1999 application should not be considered.Courts read EEOC charges liberally so that a lay plaintiff can have his or her civil rights vindicated. Id. at 676. Even though Sherman did not specifically mention prior acts in the charge, they still are admissible to show an ongoing pattern and practice of discrimination, since that pattern is offered to support the claim of discrimination in the March 2000 application for promotion. See National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2072 (2002).
2. Res Judicata and Collateral Estoppel as a Bar to the Evidence DCC argues that allegations of a discriminatory pattern and practice based upon events occurring prior to July 2000 are barred by res judicata and collateral estoppel because of the decision in Sherman I. Sherman, however, argues that these doctrines do not apply since he is now trying to show an ongoing pattern or practice of discrimination, and in Sherman I he was only trying to show individual incidents of discrimination.A claim is barred by the res judicata effect of prior litigation if all of the following elements are present: (1) a final decision on the merits by a court of competent jurisdiction: (2) a subsequent action between the same parties or their `privies'; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.Browning v. Levy, 283 F.3d 761, 771-772 (6th Cir. 2002) (quotingBittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997) (internal quotations omitted); see also York v. Wayne Co. Sheriff, 157 Mich. App. 417, 422 (1967). "[T]he doctrine of collateral estoppel prevents a party from relitigating factual issues resolved against it in a prior proceeding where there has been a final judgment on the merits."Pacific Employers Ins. Co. v. Sav-a-Lot of Winchester, 291 F.3d 392, 399 (6th Cir, 2002); see also Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322. 326 (1979).
The parties dispute whether the claim of a "pattern or practice" of discrimination made in this case is a justification for addressing factual issues that either were, or arguably should have been, addressed in Sherman I. It is unnecessary to resolve this dispute, however. Sherman has not presented any argument making out a pattern or practice of discrimination as a separate legal claim, as a plaintiff might in a hostile work environment claim. Rather, he is trying to establish the pattern to bolster his argument that DCC discriminated on the particular occasion for which he is suing, the failure to promote in April, 2000. Res judicata and collateral estoppel bar the relitigation of issues, not the admission of evidence. While the trial here may not relitigate the issue of the discrimination claimed in Sherman I and possibly may not address the issue of whether there was a pattern or practice of discrimination prior to July 2000, the Court (and a jury) may consider evidence of an ongoing policy of discrimination in deciding whether or not there was discrimination in the failure to promote in April, 2000.See National R.R., 122 S.Ct. at 2072.
Shermans complaint appears to present a separate claim for a pattern and practice of discrimination, but his response in opposition to DCC's motion for summary judgment treats the pattern and practice simply as evidence to bolster his discrete claim of discrimination in 2000.
D. Sherman's Claim for Failure to Promote in 2000 1. Direct Evidence
Sherman argues that he does not need to use the McDonnell-Douglas test because he has sufficient direct evidence of discrimination to take his case to a jury. The only evidence he presents, however, is DCC's alleged admission that it preferred to promote women, minorities, and younger engineers. This evidence is inadmissible hearsay, since it relies on what Sherman says Cherundolo told him that Doan told Cherundolo. There is insufficient direct evidence favoring Sherman to survive summary judgment. Sherman must rely on the McDonnell-Douglas shifting burden test to infer discrimination in denying him the April, 2000 promotion and take his case to a jury.
2. Indirect Evidence: McDonnel-Douglas Test a. Prima Facie Case i. Discrimination
DCC does not dispute that Sherman is a member of a protected class, that he suffered an adverse employment decision in not receiving the April, 2000 promotion, or that a younger person, Weaver, received the position he sought DCC does argue, however, that Sherman cannot make out a prima facie case because he cannot show that he was qualified for the position. Sherman says that it is uncontested that he was qualified for the position and even insists he was most qualified for the position. referring particularly to his extensive steering experience.
DCC says Sherman did not have sufficient management skills to handle the position. It also says that while Sherman may have had the most experience on the Neon steering design engineering, he had little suspension design experience or broad vehicle development experience, both of which were considered qualifications for the position he sought.
While a finder of fact might agree with DCC that Sherman was not the most qualified applicant for the position, he appears to have at least the minimum qualifications for it. Cornish admitted in his deposition that Sherman was qualified to apply for the position, though he said he was not good enough to be interviewed. Sherman has therefore made a prima facie case of discrimination.
ii. Retaliation
Neither party has presented any arguments on the retaliation claim, but instead have limited their arguments to the discrimination claim.
Sherman's EEOC complaint and lawsuit were clearly statutorily protected activities. Sherman has provided no evidence, though, that these activities were a significant factor in Cornish's decision not to choose him. He has therefore not made a prima facie case for retaliation.
b. Non-Discriminatory Reason
DCC has net its burden to show a legitimate, non-discriminatory business reason for preferring Weaver for the April, 2000 position. Cornish believed that the ability to supervise vendor or supplier engineers was critical to the position and he was of the opinion that Sherman would not be good at it; he was of the opinion that Weaver did have a good management style. Weaver also had a background in both suspension design and steering design, whereas Sherman's experience was lacking in suspension design. There is sufficient evidence to support DCC's position that it had a legitimate reason not to promote Sherman.
c. Pretext
The burden now shifts back to Sherman to show pretext. DCC argues there is no evidence of pretext because Sherman's only real claim regarding qualifications is that he had more steering design experience, yet there is no basis for saying that superior steering design experience was the critical factor in the decision. While DCC concedes Sherman's technical skills, it says that management skills were more important for this position than technical expertise. DCC explains that Sherman's lack of management skills and experience with suspension systems were the reasons he did not get the position.
Sherman has not presented sufficient evidence to rebut DCC's stated reasons. Sherman has tried to impeach Cornish's stated reason for not choosing him by pointing out errors in the dates that Cornish gave for when TRW engineers complained about Sherman. These errors are not enough to establish pretext, as Cornish did not rely solely on the complaints of the TRW engineers in making his determination that Sherman would not be a good manager Cornish worked with Sherman previously and considered him to lack the skills necessary to manage a group of mixed engineers. DCC is entitled to rely on Cornish's judgment in this regard. Importantly, Sherman has not presented any evidence that he actually had a good management style or that others at DCC considered him to have a good management style. Additionally, Sherman has not presented evidence that he had suspension experience as required by the job specification.
Sherman implies that he has caught Cornish in a lie and that is enough to establish pretext. A rational jury could not find pretext based solely on Cornish's failure to remember the timing of oral complaints made over five years ago.
Sherman's only other evidence to show pretext is inadmissible. The alleged statement by Doan to Cherundolo is hearsay, and Sherman's list of 235 promotions awarded by DCC, which he claims shows a pattern of discrimination, was excluded in Sherman I as unreliable. See March 9, 2000 Order Regarding Motions in Limine in Sherman I; see also Tinker v. Sears, Roebuck Co., 127 F.3d 519, 524 (6th Cir. 1997) ("For statistics to be valid and helpful in a discrimination case, both the methodology and the explanatory power of the statistical analysis must be sufficient to permit an inference of discrimination." citing Simpson v. Midland Ross Corp., 823 F.2d 937, 944 (6th Cir. 1987), internal quotations omitted).
Sherman has provided no information regarding the number and ages of product engineers who qualified for and sought promotions, nor did he provide any information regarding the methodology to arrive at the proffered data.
IV. Conclusion
The Court did not consider DCC's failure to promote Sherman in 1999 as a separate claim, but it considered evidence of that failure to promote, as well as other evidence of past discrimination, as support for Sherman's claim that there was an ongoing pattern and practice of discrimination. Sherman's claim of an ongoing pattern and practice, in turn, was not considered as an independent claim, but rather as support for his claim of a discrete instance of discrimination in 2000.
Sherman did not present sufficient direct evidence of discrimination to make a case of discrimination or retaliation without using theMcDonnell-Douglas test. Following the burden-shifting approach required by that test, Sherman did make a prima facie case for discrimination, but he did not make a prima facie case for retaliation. DCC presented a non-discriminatory reason for not promoting Sherman, namely that he was not considered a good manager. Sherman did not present sufficient evidence to show pretext.
SO ORDERED.