Staci Russell v. Three Pillars

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0067n.06
Case No. 21-1481
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
) FILED
STACI RUSSELL, Feb 07, 2022
)
) DEBORAH S. HUNT, Clerk
Plaintiff - Appellant,
)
)
v. ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
)
THREE PILLARS, EASTERN DISTRICT OF MICHIGAN
)
)
Defendant - Appellee.
)
BEFORE: GIBBONS, READLER, and MURPHY, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. After serving as Academic Dean for
Cornerstone Health High School for more than three years, Staci Russell was moved to Dean of
Students, a position she previously occupied. Soon thereafter, the principal position became
vacant. Russell did not apply or indicate interest in the position, and Three Pillars, Inc. d/b/a
Cornerstone Education Group (“Cornerstone”) selected a male to fill the position temporarily.
Russell sued under Title VII and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), alleging
that Cornerstone discriminated against her on the basis of sex when it demoted her and failed to
promote her. The district court granted summary judgment to Cornerstone. We affirm.
I
Cornerstone, a Michigan charter school management company, operates five public
academies in the state. On July 30, 2012, Russell started her employment as a Course Manager at
Cornerstone Health High School (“the high school” or “the school”). Russell later served as Dean
No. 21-1481, Russell v. Three Pillars, Inc.
of Students and, temporarily, interim principal before she was named Academic Dean on July 13,
2016. Scott Humphrey, a male, was hired as the school’s other Academic Dean in July 2016.
On July 1, 2019, Grand Valley State University, the authorizing entity for the high school,
“award[ed] only a three-year charter contract because of [the school’s] weaker-than-desired
performance.” DE 30-2, Kimball Dep., Page ID 977. The high school “was identified as one of
the weaker schools within GVSU’s charter portfolio.” Id. Cornerstone subsequently hired Lisa
Key as Chief Academic Officer to oversee educational programs. Jared Davis, then-principal of
the high school and direct supervisor of Russell and Humphrey, reported directly to Key. Key
believed “the high school did not have the optimum leadership that it needed” and insisted
leadership should spend eighty percent of their time on “instructional leadership” and twenty
percent of their time on “management.” DE 28-5, Key Dep., Page ID 519, 521–22, 528. In August,
Key observed that Russell spent more time on management tasks instead of her Academic Dean
responsibilities. Key had conversations with Davis about her concerns that Russell “was not doing
an academic dean job” and, as a result, “the school was not getting the support that they needed.”
Id. at 529.
On November 23, 2019, Key sent an email to members of Cornerstone’s executive
leadership team indicating a “need to . . . move forward with leadership changes to improve
outcomes” at the high school. DE 28-10, Key Email, Page ID 598. She wrote that she “discovered
early on . . . that the [high school] lacks the proper leadership as well as academic and instructional
support it requires to be successful.” Id. Key intended to move Russell to Dean of Students “to
assist with student behavior and culture,” which she hoped “would be a better fit for [Russell’s]
skills and/or . . . would improve her performance.” Id. Asserting that “instructional leadership is
not where [Russell]’s skill set is,” Key said she “can’t afford to not support the teachers and
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students as we work to improve student progress and achievement.” Id. Key indicated that moving
Russell to Dean of Students was “step one of [her] plans.” Id. On November 26, 2019, Russell
was advised of Cornerstone’s decision to move her to Dean of Students. Her compensation and
benefits did not change. Russell officially accepted the position on December 3, 2019 and started
the position on December 9, 2019.
On December 6, 2019, Cornerstone fired Davis and named Phillip Price, already principal
at Cornerstone’s Lincoln-King High School, interim principal. After Price decided he no longer
wished to serve as principal of two schools, Humphrey, who had indicated his desire to become
principal, began serving as interim principal on December 16, 2019. Cornerstone posted the
principal position that same day. Russell did not apply or indicate interest. Humphrey applied
and interviewed for the position but was not selected. On January 24, 2020, Cornerstone
announced it was combining Cornerstone Health High School and Lincoln-King High School and
that Price would be principal of the combined school. Ernestine Sanders was selected to serve as
interim principal of Cornerstone Health High School until the end of the 2019 to 2020 school year.
Russell filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on January 7, 2020. She alleged she was discriminated against on the
basis of race1 and sex “[o]n December 9, 2019,” when she “was demoted to Dean of Students.”
DE 28-17, EEOC Charge, Page ID 622. The EEOC closed its file and issued a “Notice of Right
to Sue.” Russell sued under Title VII and Michigan’s ELCRA, alleging she was discriminated
against on the basis of sex when she was demoted and denied promotion to principal. The district
court granted summary judgment to Cornerstone and dismissed Russell’s claims. Russell timely
appealed.
1
Although Russell indicated discrimination on the basis of race in her EEOC charge, she did not file a race
discrimination claim in the district court.
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No. 21-1481, Russell v. Three Pillars, Inc.
II
We review a district court’s grant of summary judgment de novo. City of Wyandotte v.
Consol. Rail Corp., 262 F.3d 581, 585 (6th Cir. 2001). 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). All facts and inferences are “consider[ed] . . . in the
light most favorable to the nonmovant.” City of Wyandotte, 262 F.3d at 585. “Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (quotation marks and citation omitted). “The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III
Russell argues Cornerstone discriminated against her on the basis of sex in demoting her
to Dean of Students and in failing to promote her to principal in violation of Title VII and the
ELCRA. Russell does not present direct evidence of discrimination. Absent direct evidence of
discrimination, sex discrimination claims based on circumstantial evidence are analyzed under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). First,
Russell has the burden of establishing a prima facie case of discrimination. Burdine, 450 U.S. at252–53. If Russell makes a prima facie case, “the burden shifts” to Cornerstone “to articulate
some legitimate, nondiscriminatory reason” for the adverse employment decision. Id. at 253(quoting McDonnell Douglas, 411 U.S. at 802). If Cornerstone meets that burden, Russell must
prove Cornerstone’s offered reason was pretextual and not the true reason for the action. Id.-4-
No. 21-1481, Russell v. Three Pillars, Inc.
Russell has “the ultimate burden of persuading the court that she has been the victim of intentional
discrimination.” Id. at 256. Russell’s ELCRA claims are analyzed using the same evidentiary and
burden-shifting framework as her Title VII claims. Humenny v. Genex Corp., 390 F.3d 901, 906
(6th Cir. 2004).
A
The district court found Russell established a prima facie case of sex discrimination on her
demotion claim, and Cornerstone had a legitimate, non-discriminatory reason for the demotion
that Russell could not prove was pretextual. We assume, without deciding, that Russell established
a prima facie case of sex discrimination on her demotion claim. Cornerstone thus has the burden
to provide a “legitimate, non-discriminatory reason for the adverse employment action.” White v.
Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). Cornerstone’s “explanation of its
legitimate reasons must be clear and reasonably specific” and supported by “admissible evidence
which would allow the trier of fact rationally to conclude that the employment decision [was not]
motivated by discriminatory animus.” Burdine, 450 U.S. at 257–58.
Cornerstone asserts Russell was moved to Dean of Students due to poor performance.
Grand Valley State University had awarded Cornerstone “only a three-year charter contract
because of its weaker-than-desired performance.” DE 30-2, Kimball Dep., Page ID 977. Key
believed the school “lack[ed] the proper leadership as well as academic and instructional support
it require[d] to be successful” and needed “leadership changes to improve outcomes.” DE 28-10,
Key Email, Page ID 598. Moving Russell to Dean of Students was “step one” of Key’s “plans of
improvement.” Id. Key determined Russell did not have strengths in instructional leadership,
which was essential for an Academic Dean. She discovered Russell spent more than twenty
percent of her time on management tasks, such as “spending time on schedules, enrolling students,
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No. 21-1481, Russell v. Three Pillars, Inc.
management duties, [and] subbing.” DE 28-5, Key Dep., Page ID 521–22, 539. Key saw no
evidence Russell “was doing those things that she was supposed to do at the capacity she was
supposed to do them.” Id. at 528.
Poor performance is a legitimate, non-discriminatory reason for an adverse employment
decision. See Stransberry v. Air Wis. Airlines Corp., 651 F.3d 482, 488 (6th Cir. 2011).
Cornerstone’s proffered reasons are “clear and reasonably specific” and could lead a jury to
rationally find that moving Russell to Dean of Students was “not . . . motivated by discriminatory
animus.” Burdine, 450 U.S. at 257–58. We find Cornerstone has met its burden to articulate a
legitimate, non-discriminatory reason for its employment decision.
Russell now has the burden of proving that Cornerstone’s “proffered reason was not its
true reason, but merely a pretext for discrimination.” Baxter Healthcare, 533 F.3d at 391–92.
Russell can “succeed in this either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Burdine, 450 U.S. at 256. Pretext is indirectly demonstrated
“by showing that the employer’s stated reason for the adverse employment action either (1) has no
basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer’s action.”
Baxter Healthcare, 533 F.3d at 393. It can also be demonstrated by “evidence which challenges
the reasonableness of the employer’s decision ‘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. (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir. 2003) (en banc)).
Russell disputes that her performance was poor, particularly because issues concerning her
performance were not brought to her attention before she was moved to Dean of Students and
because the management tasks for which Key criticized her were performed at the direction of her
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No. 21-1481, Russell v. Three Pillars, Inc.
supervisor. Russell’s view of her own performance, however, does not establish pretext if
Cornerstone “reasonably relied on the particularized facts then before it.” Smith v. Chrysler Corp.,
155 F.3d 799, 807 (6th Cir. 1998); see also Bacon v. Honda of Am. Mfg., Inc., 192 F. App’x 337,
345 (6th Cir. 2006). “[T]he key inquiry is whether the employer made a reasonably informed and
considered decision before taking an adverse employment action.” Smith, 155 F.3d at 807.
Further, Russell’s disagreement with Cornerstone’s “honest business judgment regarding [her]
work does not create sufficient evidence of pretext in the face of the substantial evidence that
[Cornerstone] had a reasonable basis to be dissatisfied.” Majewski v. Automatic Data Processing,
Inc., 274 F.3d 1106, 1116 (6th Cir. 2001).
After missing this court’s already-extended deadline to correctly file a reply brief, Russell
moved for leave to file a reply brief on December 3, 2021, citing clerical error, and attached a
proposed reply brief. Cornerstone filed a response in opposition, arguing Russell did not establish
good cause under Federal Rule of Appellate Procedure 26(b) and that permitting the proposed
reply brief would wrongfully expand the record on appeal. Regardless of whether Russell
established good cause, Cornerstone is correct that Russell seeks to wrongfully expand the record
on appeal. Russell includes a screenshot of a November 24, 2019 email sent by Frey-Greathouse
and a November 25, 2019 email sent by Russell, and argues the emails establish pretext. Neither
email was introduced into evidence or filed with the district court, so we cannot consider them.
We deny Russell’s motion for leave to file a reply brief.
Russell presents no evidence from which the jury could reasonably find that Cornerstone’s
proffered reason was not based in fact, was not the actual reason, or was insufficient to explain its
employment decision. See Baxter Healthcare, 533 F.3d at 393. Russell’s arguments do not cast
doubt on the reasonableness of Cornerstone’s decision or prove “she has been the victim of
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No. 21-1481, Russell v. Three Pillars, Inc.
intentional discrimination.” Burdine, 450 U.S. at 256. She has not established that Cornerstone
offered “a false explanation” for its decision. Stansberry, 651 F.3d at 488. Cornerstone “made a
reasonably informed and considered decision” before moving Russell to Dean of Students. Smith,
155 F.3d at 807. We find Russell did not establish Cornerstone’s proffered reason for her demotion
was pretextual.
B
The district court found that Russell failed to exhaust her administrative remedies as
required under Title VII because she did not present her failure to promote claim to the EEOC.
Parties alleging violations of Title VII must first exhaust administrative remedies by filing a charge
with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d
724, 731 (6th Cir. 2006). A party’s EEOC charge must be “sufficiently precise to identify the
parties, and to describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b).
Russell cannot bring a claim in her lawsuit that she did not include in her EEOC charge. Younis
v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010). Her pro se complaint must be
“liberally construed to encompass all claims reasonably expected to grow out of the charge of
discrimination.” Randolph, 453 F.3d at 732 (quotation marks and citation omitted).
Russell filed her EEOC charge on January 7, 2020. She listed December 9, 2019, as the
earliest and latest date(s) discrimination took place and did not mark the box to indicate the
discrimination was a continuing action. She alleged:
On December 9, 2019, I was demoted to Dean of Students. A white male, who was
also an Academic Dean was promoted to Interim Principal. The two positions of
Academic Dean are currently being advertised. I was not given an explanation of
why I was demoted.
I believe I was demoted, and discriminated against, because of my Sex-Female.
DE 28-17, EEOC Charge, Page ID 622.
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No. 21-1481, Russell v. Three Pillars, Inc.
Russell mentioned her alleged demotion three times in her charge but did not include any
facts related to her allegation that Cornerstone discriminated against her by failing to promote her
to principal. Her listed date of discrimination does not encompass her failure to promote claim, as
none of the relevant promotion events occurred on December 9, 2019—Davis was fired and Price
was named interim principal on December 6, 2019, and Humphrey was selected as interim
principal on December 16, 2019.
As the district court found, “Russell’s failure to promote claim is not one reasonably
expected to grow out of her EEOC charge, which is limited to a single employment action—i.e.,
her alleged demotion to Dean of Students—that occurred on a single day.” DE 33, Order, Page
ID 1156–57 (emphases added). The facts included with respect to Russell’s charged demotion
claim would not “prompt the EEOC to investigate” the different, uncharged failure to promote
claim. Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). The
facts are not “sufficiently precise . . . to describe generally the action . . . complained of”—here,
Cornerstone’s failure to promote her to principal. 29 C.F.R. § 1601.12(b). Russell thus did not
exhaust her administrative remedies for her Title VII failure to promote claim.
C
The district court found that Russell did not establish a prima facie case on her ELCRA
failure to promote claim because she did not apply for the vacant principal position. Unlike Title
VII, the ELCRA does not require exhaustion of administrative remedies. See M.C.L. § 37.2202.
The ELCRA prohibits an employer from “discriminat[ing] against an individual with respect to
employment, compensation, or a term, condition, or privilege of employment, because of religion,
race, color, national origin, age, sex, height, weight, or marital status.” M.C.L. § 37.2202(1)(a).
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As noted, ELCRA claims are subject to the same burden-shifting framework as Title VII claims.
Humenny, 390 F.3d at 906.
To establish a prima facie case for her failure to promote claim, Russell must show: “(1) she
belongs to a protected class; (2) she applied for and was qualified for the position; (3) she was
considered for and denied the position despite her qualifications; and (4) an individual of similar
qualifications who was not a member of the protected class received the promotion.” Crane v.
Mary Free Bed Rehab. Hosp., 634 F. App’x 518, 524 (6th Cir. 2015).
Russell concedes she did not apply for the vacant principal position. If a plaintiff fails to
apply for the position at issue, there are two situations where her discrimination claim can still
succeed: (1) when the employer’s history of “gross and pervasive discrimination” creates an
“atmosphere of futility” and (2) when “the employer promotes employees into the position[] in
question without asking for applications or posting the opening so that employees could apply for
the position[].” Wanger v. G.A. Gray Co., 872 F.2d 142, 145–46 (6th Cir. 1989) (citation omitted);
see also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 367–68 (1977).
Russell argues her demotion to the Dean of Students position created an atmosphere of
futility, but that event alone does not equate to “gross and pervasive discrimination.” Wanger,
872 F.2d at 145 (citation omitted). She also points out that Cornerstone had never hired a female
high school principal. However, Russell herself served as interim principal from June 7, 2015, to
July 20, 2015. Russell cannot establish an atmosphere of futility because she points to no evidence
of gross and pervasive discrimination on the basis of sex. See e.g., Int’l Bhd. of Teamsters,
431 U.S. at 337–38 (finding the plaintiff established gross and pervasive discrimination using
statistical evidence and “the testimony of individuals who recounted over 40 specific instances of
discrimination”).
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No. 21-1481, Russell v. Three Pillars, Inc.
Russell also argues that her failure to apply should be excused because Cornerstone
“abandon[ed] [its] hiring process for the principal position and named Phillip Price the next
principal” after Russell filed her EEOC charge of discrimination. CA6 R. 18, Appellant Br., at 34.
However, Price was named interim principal on December 6, 2019, immediately after Davis was
fired. Russell did not file her EEOC charge until January 7, 2020. While Cornerstone did
immediately name Price and later Humphrey interim principal without asking for applications,
they soon thereafter posted the principal position and interviewed for it. Russell never applied or
interviewed for the position, nor did she indicate interest. While Cornerstone named Price
principal of the combined high school on January 24, 2020, after Russell filed her EEOC charge,
Russell does not provide evidence showing that Cornerstone’s decision to combine two high
schools and name Price principal of the combined school occurred as a result of her filing an EEOC
charge. Russell thus did not establish a prima facie case of discriminatory failure to promote.
IV
Russell cannot prove Cornerstone’s proffered reason for her demotion was pretextual. She
failed to exhaust her administrative remedies for her failure to promote claim as required under
Title VII. Finally, she did not apply for the principal position and thus cannot establish a prima
facie case on her ELCRA failure to promote claim. We affirm.
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