*1 govern office should for the Detroit CIS CSPA, and that CIS’s
purposes noncompliance regulatory with the
alleged petition “stamped that a be
requirement receipt” the time and date of actual
show “regarded properly filed
so as stamped,” C.F.R.
when so 103.2(a)(7)(i), unfairly deprived him of immediate relative visa clas-
eligibility for and 8
sification under CSPA U.S.C.
§ 1255. circumstances, these we hold that
Under explanation BIA acted without rational
and therefore abused its discretion de
nying Ahmed’s motion to remand to the IJ application consideration of his
for further adjustment for qualification immediate status, a pri where Ahmed established Alizoti, sought.
ma facie
for the relief
case
4
III.
Therefore, reasons, foregoing for the we review,
grant petition vacate the removal, and remand to the BIA
order proceedings
for further consistent with opinion. ARENDALE,
Michael J.
Plaintiff-Appellant, MEMPHIS,
CITY OF Defendant-
Appellee.
No. 07-5230. Appeals,
United States Court of
Sixth Circuit.
Argued and Submitted: Jan. and Filed: March
Decided *3 Isom-Thompson, Amber
ARGUED: Kiesewetter, Wise, Prather, Kaplan & Tennessee, Memphis, Appellee. for ON Jr., King, BRIEF: James Edward Eskins Tennessee, King, Appellant. for Memphis, Isom-Thompson, Mey- Amber Robert D. ers, Kiesewetter, Wise, Prather, & Kaplan Tennessee, Memphis, Appellee. SILER, CLAY, COOK, Before: Judges. Circuit CLAY, J., a “better work location” because opinion “[t]he delivered the (J.A. a lot demographic area was better.” SILER, J., COOK, court, joined. in which transfer, granted Plaintiff was 607), separate opinion (p. J. delivered assigned p.m. a.m. to and was the 7 concurring in the concurring part case, shift. At the time relevant to this judgment. by Lieutenant An- supervised Plaintiff was Cox, African-American. Also dre who is OPINION time, during the Northeast Precinct’s CLAY, Judge. Circuit acting Major Danny commander was Coo- Arendale is a white Plaintiff Michael per, Deputy and the Chief of the MPD was Memphis police employed officer Wright. Major Cooper M.J. Both *4 appeals He the dis- Department. Police Wright Chief are white. in summary judgment grant trict court’s Assignments A. Arendale’s (“The City Memphis Defendant favor of un- City”) brought in civil suit this Precinct, Upon arriving at the Northeast §§ 1981 and Title VII der U.S.C. assignment Plaintiffs first was the “extra 1964, 42 Rights of the Act of U.S.C. board.” Extra board officers do not have Civil continuing responsibility specific geo- for a seq., 2000e et Human and the Tennessee “ward,” graphic area or but instead are (“THRA”), Ann. Rights Act Tenn.Code fill in in assigned to for officers who call seq. 4-21-101 et For reasons patrol sick or who are otherwise unable to follow, grant- the district court’s decision assigned Plaintiff Although their wards. in favor ing summary judgment deposition admitted in a that new officers is AFFIRMED. in precinct typically assigned are to the they extra board so that can “become fa- OF FACTS STATEMENT miliar with entire he also precinct,” Plaintiff Michael Arendale is a self-de- assigned testified that he was to the extra American citizen” who has scribed “White months, board for three which he believes Memphis been an officer with the Police “abnormally long is an amount of time” for (“MPD”) (J.A. Department since 1990. assignment. a veteran officer to have this 17-18) alleges given He that he was less (J.A. 295) testimony by According to African- assignments desirable than his Major Cooper, assignment an officer’s to that ill-treatment of colleagues, American normally ward or the extra board is deter- by supervisor him an African-American lieutenant, although mined the officer’s environment, created a hostile work might lieutenant’s commander occa- illegally suspended he was from work after sionally if intervene the commander “saw a supervisor, an altercation with that same 432) (J.A. problem.” and that he was retaliated after he eventually assigned charge filed a with the EEOC. Ward a ward he believes is “one of the In August after more than twelve better and less stressful wards in the years in North working (Plaintiffs 4) the MPD’s Pre- Northeast Precinct.” Br. at cinct, sought a transfer to the 8, 2003, however, May On Plaintiff was Precinct, reassigned According Northeast which he believed to Ward 822.1 brief, partner, 1. In his Plaintiff claims that Lieutenant affidavit of Plaintiff's Officer Jeff replaced partner Chaudoin, Cox him and his "with two who does state that Lieutenant Cox police African American rookie officers...." assigned three officers to African-American (Plaintiff's only Br. evidence in the claim, however, support record to is the Plaintiff, he was informed Lieutenant dinates did comply. not As a relatively reassign that the decision to him came junior lieutenant, Cox Cox testified that he was meeting precinct from a command offi- particularly concerned that he could face cers, they and was made because believed disciplinary charges for non-compliance. running rampant “crime was 828 and Lieutenant Cox added that several offi- doing anything wasn’t to curtail [Plaintiff] cers, African-American, both white and (J.A. 304) testimony it” This was cor- complained had about his insistence that Major Cooper, roborated that of who the reports correctly, be filled out and he personally said made the decision named three black officers who lodged had to move Plaintiff out of due Ward 828 such complaints. No testimony or other large complaints number of from ward res- statements from these officers appear that the idents officers that ward were the record. sufficiently attentive to their duties. In addition to his claims Lieutenant Cox harassed him criticizing his acci- Alleged B. Harassment reports, dent alleges Plaintiff also that two Plaintiff also alleges various alterca- additional incidents racially constituted tions between himself and Lieutenant Cox motivated harassment. In June of racially amounted to motivated harass- *5 claims, Plaintiff he was called into Cox’s Plaintiff, According ment. to Lieutenant office and accused of a leaving crime scene Cox would often call Plaintiff into his office unattended, when in fact it awas different and criticize him incorrectly completing for officer who had left the crime scene.2 reports. accident Plaintiff testified that at admits, however, Plaintiff that after he week, least once a Cox would “berate me told Lieutenant Cox that Cox was accusing my ability report about to write a that I officer, the wrong eventually Cox left the (J.A. doing years.” had been for office, verified Plaintiffs statement and ad- 63-64) Plaintiff also claimed that Cox mitted that Plaintiff was correct. While treated other white officers the same “just Plaintiff adds that Cox then started way, but black officers did not receive something on else berating telling me and this treatment. When asked how he knew me I wrong,” handled that all Plaintiff that Cox’s criticism was limited to white explain subject does not of this new officers, however, Plaintiff admitted that it (J.A. 310) accusation. (J.A. 64) “[j]ust my was observation.” Additionally, alleges Plaintiff he was ha- In deposition, his Lieutenant Cox testi- rassed Lieutenant Cox after an incident fied at working the time he was at a involving different crime scene. Accord- Precinct, the Northeast the MPD had re- Plaintiff, ing to partner and his arrived cently changed the format of its offense attempted aggravated the scene of an reports, and that “numerous officers” had robbery and a knife discovered which had problems complying with the new forms. been used in the crime. Both men stood (J.A. 86-87) that, Cox further testified to guard the knife to it. Although Cox compliance ensure with federal reporting nothing said upon either officer his ar- regulations, put pressure MPD on scene, says rival at the crime Plaintiff lieutenants to ensure that the forms were completed correctly, day “began the next Lieutenant Cox and even threatened berat- consequences ing scene, to lieutenants standing whose subor- me about at the crime affidavit, alleges
Ward but not until several months after In an Plaintiff that the offi- actually cer who left the reassigned. crime scene is Afri- Plaintiff and Chaudoin were (J.A. 774) can-American. ment, it did not that was about the most ridiculous looking [sic] at a knife and life, the knife.” I thing my to watch I have ever heard take two officers (J.A. 775) phone trying report. am on the to take a said, I Lieutenant ... I don’t have Cox 4, 2004, February Plaintiff was reas- On that. you time to write memo for Shortly there- signed to the extra board. (J.A. 330-331) after, February he filed alleging both race charge with the EEOC Plaintiff of Lieutenant Cox relieved against Lieutenant age discrimination eventually duty, and sent Cox. dispute home. there is some as to While home because whether was sent Charges C. Insubordination required equipment to be he lacked assigned April Plaintiff was On field, Major reassigned to the or because at the Pre- to the front desk Northeast Cooper observed Plaintiff and believed he officer, cinct. As the desk Plaintiff was visibly angry was too to be entrusted with required page to follow a one set of “desk work, police three facts about this incident requirement include a procedures,” which First, undisputed. are Lieutenant Cox working the desk ... will be “officers Second, told Plaintiff to write a memo. location, aware of who is at the whether it Plaintiff expressly refused do so. visitors, any or officers and will monitor Third, bring pistol Plaintiff did not his belt not allow visitors in unau- visitors and will work, regulations. a violation of MPD (J.A. 108) areas.” at the thorized While charged Lieutenant Cox Plaintiff with desk, approached by Plaintiff was Charles failing comply insubordination for Allred, who identified himself as retired instructions, neglect duty his and with if police officer and asked he could look at pistol to bring Plaintiffs failure his belt *6 pictures precinct on the walls. some to regulations, work.3 Under MPD of words, following In Plaintiffs own ex- they ficer commits insubordination when change then occurred: to, for, “display disrespect disregard or coming my caught I some motion from supervisory department, member of this up I it left side and looked and was duty. on either or off This includes cases coming. Lieutenant Cox And he said in abuse, of verbal or abruptness, rudeness manner, just that man a hostile down toward a or failure to superior promptly said, said, you? there with I no sir. He courteously respond suggestions, and to said, well, I who is he? he’s retired counseling, disciplining superior or officer, police report he’s here to do a (J.A. 110) alleged officer.” Lieutenant Cox he if he could look at the and asked that Plaintiff committed insubordination I pictures on the wall while finished this identify when he failed to retired Officer said, report okay. and I said He has Cox, upon request by appeared Allred un anybody you letting peo- ever told about aware Allred’s location and was “asked said, no, I I ple go back there? sir. several times about the individual said, [but] police said he’s a retired officer. I (J.A. purposely ignored” requests. these know, you big what’s the deal? [Lieu- 109-110). w]ell, charged Lieutenant Cox also you tenant Cox said I want that Plaintiff was insubordinate when he doing write me a memo on what he is Well, at specific back there. mo- refused to write a memo as instructed. required charge. Plaintiff concedes that not contest this duty, pistol wear his belt while on and does Discipline Hearing History D. Plaintiffs E. Procedural Appeal 21, 2004, April On Plaintiff filed another charge, claiming 15, EEOC the April discipline hearing A was held Ma- before incident inwas retaliation previous for his jor Cooper During on June this complaint. EEOC This charge was hearing, alleged that Lieutenant July amended on 2004 to include his him,” “picking brought Cox was on and he suspension. up past including dispute incidents The instant case was filed in the West- (J.A. 114) assignments. over his ward Af- ern District of Tennessee on March terward, Major Cooper sustained the treatment, alleging disparate hostile insubordination, charge noting that he work environment and retaliation viola- personally had observed Plaintiff immedi- 1981; tion of violation of Equal his Pro- ately after the incident and that anger “his 1983; tection pursuant to retalia- showed on his face upset and he was so tion and hostile work environment under that he was in no condition work at the the THRA and retaliation under Title VII. (J.A. 113) Major desk or in the field.” On October the district court Cooper rejected allegations also granted summary judgment to the treating Lieutenant Cox was Plaintiff un- and dismissed this case in entirety. its fairly, adding things that “some of the appeal This followed. about, upset Officer Arendale was such as his car assignment, were administrative DISCUSSION decisions policy matter[s] [were] Standard of Review ” not because Lt. ‘picking Cox was on him.’ A grant district summary court’s (J.A. 114) suspended Plaintiff was from judgment is reviewed de novo. Farhat v. duty eight days for on the insubordination (6th Cir.2004). Jopke, 370 F.3d charge, days neglect duty. and two grant Such a should be affirmed when “the appealed suspension file, discovery and disclosure materials Deputy Wright, and an appeal Chief hear- any affidavits show that there is no ing was held on September 2004. Dur- genuine any issue as to material fact” as to ing that hearing, Plaintiff admitted that he an essential non-moving element of the *7 refused to write the memo as instructed 56(c). party’s case. An Fed.R.Civ.P. is Nevertheless, Lieutenant Cox. “genuine” sue of fact is if a reasonable representative hearing argued at the that person could return a verdict for the non- suspension deserved a shorter because moving party. Liberty Anderson v. Lob only he had been disciplined one other Inc., 242, by, 248, 2505, 477 U.S. 106 S.Ct. time Wright (1986). the MPD.4 Chief sustained 91 moving L.Ed.2d 202 After the Plaintiff, charges against both but reduced party burden, has satisfied its the burden his overall suspension days to four and non-moving party shifts to set forth him anger management ordered to attend “specific that showing gen facts there is a classes. uine issue for trial.” Matsushita Elec. 4. The reprimand record is somewhat unclear on Plain- received "a written and an oral (J.A. 270) prior disciplinary rep- reprimand.” deposition tiff's record. While his In his tes- however, only timony, only resentative stated that Plaintiff had one described in incident, charge[]'' prior disciplinary "sustained to the incident detail one which in- Cox, (J.A. 116,) accidentally discharging Lieutenant Plaintiff testi- volved him a shot- deposition fied in previously gun working that he had while he was on it in his office.
594 A. Jett Corp., Radio U.S. v. Zenith
Indus. Co.
1348,
S.Ct. 2702.
Analysis
the school district under
the coach sued
dismissing
§
In a decision
1981. Id.
Implied
of Action Con-
I. The
Cause
claim,
§
Court held
Supreme
Not Provide
§in
1981 Does
tained
that,
§
im-
though
1981 creates an
even
Liability
Municipal
For
against private defen-
plicit cause of action
dants,
actors such as the school dis-
state
claims under
raises several
first
directly
that
may
trict
not be sued
under
1981,
persons
provides
§
“[a]ll
which
731-32,
statute.
Id.
jurisdiction of the United States
within the
also
every
holding,
Supreme
in
In so
Court
right
the same
State
shall have
dichotomy
that a
exists between
Territory
make and enforce con- held
citizens,
created
federal
enjoyed by
white
and remedies
tracts ... as is
Congress
right,
creates a
subject
punishment,
to like
statute. When
and shall be
taxes, licenses,
enforcing
no
provides
and exac- but
means
pains, penalties,
kind,
action is
right,
private
to no other.”5
then a
cause of
every
tions of
1981(a).
implicit
rights-creating
in the
statute. See
express-
§
§ 1981 does not
While
(“In
application
the context of the
ly
private par-
of action to
id.
afford
cause
actors,
§
ties,
private
1982 to
we
Runyon
held
Court
aggrieved
had little choice but to hold that
McCrary, 427
96 S.Ct.
U.S.
(1976),
prohibition,
individuals could enforce this
private
L.Ed.2d 415
defen-
remedy
ad-
provi-
its
for there existed no other
may
dants
held liable under
(em-
174-175,
dress such violations of the statute.”
sions.
Id. at
B.
1991
join,
deter
Circuit will
this Court must
Jett,
decision in
years after the
Two
(c) “displays
subsection
an
mine whether
Act
Rights
the Civil
of
Congress enacted
just
right
private
intent to create not
a
but
1991,
two new subsections
which added
Sandoval,
remedy.”
532
private
also a
§ 1981:
286, 121
inqui
U.S. at
S.Ct. 1511. Such
(b)
de-
“Make and enforce contracts”
1981(c)
§
ry
provide
reveals that
does not
fined
Plaintiff with the cause of action he seeks.
section,
of this
the term
purposes
For
contracts” includes
“make and enforce
1981(c)’s Statutory
1. Section
modification,
making, performance,
Language
contracts, and the
and termination of
of the intent
exploration
This Court’s
benefits,
enjoyment
privileges,
of all
1981(c)
begin
§
“the text
behind
must
with
terms,
conditions of the contractual
Id. at
and structure” of the statute.
relationship.
(c) provides
121
Subsection
(c)
against impairment
Protection
rights protected
that
are
“[t]he
[§ 1981]
rights protected
The
this section are
protected against impairment by nongov-
against
impairment by non-
protected
impairment
ernmental discrimination and
impair-
discrimination and
governmental
1981(c).
§
under color of State law.”
Ac-
ment under color of State law.
Circuit,
cording
“by including
to the Ninth
1981(b)
(c).
argues
§
&
Plaintiff now
§
language
explicitly protects
1981
language
contained
new subsection
rights
‘impairment’ by
private
“
both
from
(c)
§
is intended to ensure that
1981
entities,
governmental
the amendment
parallel protections
rights are to receive
Congress
makes clear that
intended a com-
actors,”
against
private
state actors and
parable scope
protection against
each
extending
implied
thus
1981’s
cause of
Federation,
type of defendant.”
96 F.3d
against private defendants to viola
action
1981(c)’s
express
at 1213.
lan-
While
committed
state defendants. Fed
tions
guage does indeed establish that individu-
American Contractors
eration of African
possess equal rights
als
under
(9th
Oakland,
v.
against
private
both
and state discrimina-
Cir.1996).
tion,
rights-creating language
such
does
are
on whether
split
circuits
subsec
question
not answer the
of whether civil
(c)
private
tion
creates a
cause of action
rights plaintiffs enjoy
remedy
the same
actors, thus
overruling
state
regardless
identity
of the defendant.
Supreme Court’s decision in Jett. Com
Butts, 222
See
F.3d at 894.
pare
City Topeka,
id. with Bolden v.
Jett,
explained
As the
Court
(10th Cir.2006) (“[Subsec
F.3d
dichotomy
a
exists between
(c)
hardly
holding
...
confronts the
tion
a
includes
remedies.
Just because
statute
Jett.”);
Volusia,
County
Butts
rights-creating language does not mean
(11th Cir.2000) (“[Section]
F.3d
provides
private
it also
cause of
makes clear that the section creates a
rights,
persons deprived
action to
those
right
may
vio
private
state actors
long
Congress
provided
so
has also
remedy
late but does not itself create
violation.”);
vindicating
right
effective means of
County
Dennis v.
Jett,
(4th
elsewhere in federal
law. See
n. 1
Fairfax, 55 F.3d
Cir.
(“That
(“[S]ubsection (c)
U.S. at
597
rights
of
in
ate the declaration
contained
Much of the Act is
to
intended
“restor[e]
to do
provision
rights
does
authorize us
protections
civil
that were so
por-
the context of the ‘state action’
dramatically
so
by
limited”
these Supreme
1981,
§
Congress
tion of
where
has estab- Court decisions.
Accordingly,
Id.
this
scheme.”)
lished its own remedial
Accord-
inquiry
Court’s
on
must focus whether Jett
1981(c)
ingly,
§
the fact that
establishes was
of the
one
decisions which “so dramat-
equal rights
suing
and
parties
private
ically limited” civil rights as to justify a
not,
own,
es-
state defendants does
its
Act of Congress.
corrective
of
private
tablish
cause
action. Never-
A brief
legislative
review of the Act’s
theless,
of an express
the absence
cause of history reveals that Jett was not one of the
dispositive
scope
action is also not
of the
of
Congress
decisions
to
sought
correct.
In
1981(c),
congressional
§
and a
intent
to
stead,
§
the Act’s amendments to
1981
may
an implied
create
cause of action
be were intended to
Supreme
overrule the
sources,
inferred from
other
such
decision in
Court’s
Patterson v. McLean
712,
legislative history of a statute.
Id.
Union,
164, 109
491
2363,
Credit
U.S.
S.Ct.
opinion);
(plurality
H.R.Rep. No.
at 18
re- S.Ct.
Court’s determination
Bolden,
every
40(11), 37;
Plaintiff must establish: the existence Municipal Liability A. of a persistent pattern clear and of dis (2) by municipal employees; crimination allegations disparate treat- notice part or constructive notice on the clarity.10 ment are not a model of Liberal- (3) construed, City; City’s tacit however, approval ly appears Plaintiff conduct, claiming rights that his constitutional unconstitutional such that its Moreover, brief, page example, even were to if we hold that an For on 25 of his implied exists cause of action munici- says differently was treated than palities only Ap- § under Court of because African-American officers "Lt. Cox peals remedy implicit to hold that such a consistently Arendale berated Mr. and other § rights protected by 1981 also held that the alleged regarding white officers incorrect § already are coextensive with those (Plaintiff's drafting police reports....” Br. Federation, protected by § 1983. See later, however, 25) pages Two (“Allowing bring plaintiffs at 1214 suits allege states that "Mr. Arendale does not against municipalities directly under the unfounded made criticism Lt. Cox of rights to enforce instead of under reports up make incident his claim of imposed change no substantive (Plaintiff’s disparate treatment.” Br. at law.”) civil federal conduct,” must ... the record ployees’ act in its failure to indifference deliberate actually confronted policy City an official that the was amount to show be said to can (4) City’s custom Plain- inaction; that the conduct. Id. Lieutenant Cox’s causal “moving however, force” or direct evidence, indicating tiff cites no link deprivation. constitutional in the reported alleged dis- Cox’s Chaudoin County Pub. v. Hamilton Powers requests, granting time off Defend crimination (6th Comm’n, Cir. F.3d er that the was con- argue nor does he County, 103 F.3d 2007); Doe v. Claiborne alleged discrimi- structively aware Cox’s Cir.1996). (6th 495, 508 leave. granting nation in *13 allegations own In addition to his Similarly, allegations the of Officer Gian- Cox, Plaintiff cites two Lieutenant against to demonstrate nini are also insufficient establish that which he believes instances act when confronted City that the failed to alleged deliberately ignored Cox’s City of unconstitutional conduct. evidence First, points discrimination. agency, government a reliable When partner, Officer by his white an affidavit alleged investigation with the tasked Chaudoin, Lieutenant Cox who claims that violations, a concludes after constitutional day a off on the once denied Chaudoin investigation that no violation thorough an African- day granted that he same occurred, municipality permitted a is has Second, Plain request. American officer’s investigation. rely on the results of officer, white Joe tiff that another *14 does the support Nor record Plaintiffs (1986) (“[A] L.Ed.2d 452 City that the may claim be held hable for cannot be municipality by ap made liable Lieutenant Cox’s criticism his accident plication of the doctrine of respondeat su reports. again, Once Plaintiff relies en When, perior.”). however, an allegedly to tirely conclusory support statements unconstitutional decision is an by made that his claim Cox’s criticism was motivat policy official “final making with authori only racial by ed animus. As his evidence ty,” then municipality may the held be acted impermissibly criticizing that Cox decision, long liable for that official’s so as reports, depo the Plaintiff cites to own his the by decision was made or “the official “[Tjhere testimony sition that no rea was responsible officials under state for law ... to call me in me son and berate about making policy city’s that area of the ... report was done correct it City business.” St. Louis v. Praprot any couldn’t have been reason than other nik, 108 S.Ct. (J.A. 312) presented race.” Plaintiff has (1988). Furthermore, L.Ed.2d 107 the nothing more than subjective opin his own explained in Praprotnik, Court justify ion his the allegations City to the of municipal liability hallmark the is allowing discriminated him by finality being decision reviewed: Lieutenant Cox to criticize his accident reports. conclusory Such are discretionary statements When an official’s deci not sufficient to survive motion any by policies for sions are constrained summary judgment, to much allow a making, policies, less that official’s those municipality to be held liable for acts rather than the departures subordinate’s employees. them, v. Philip of its See Lewis from are the act municipali (6th Inc., Similarly, Morris Cir. ty. when a de subordinate’s (“In 2004) subject order to survive a motion for cision is review the munici summary judgment, non-moving party pality’s they policymakers, authorized probative must be able to show authority sufficient have retained the to measure Moreover, (J.A. 29), Major Cooper's testimony precincts,” ful as the other and that Plaintiff was not attentive duties is to his he wanted remain in Ward 828 because corroborated Plaintiff’s own statements that ward "one of the better and is less stress- initially sought a transfer to the (Plain- ful the Northeast wards in Precinct.” Northeast Precinct because “the work at the tiff's Br. at Precinct or Northeast was not as hard stress- cer, may appealed to an that decision conformance conduct for the official’s an Authority.” If the authorized Id. Like Adminis- “Appeal policies. their with may Appeal Authority a subordinate’s approve tering Authority, policymakers it, their ratifi- rank, for provided and the basis any supervisory decision be of the munic- chargeable to cation would be manag- they commanding “a officer are is final. their decision because ipality at a chain of command er the same administering words, level than that of an higher In other 108 S.Ct. Id. Signifi- Id. authority appeals.” who hears unconstitutional deci- allegedly even if the authority shall be the cantly, appeal made subordinate “the initially sion is appealed is official, that decision review and stage departmental when in the last final au- by an official and affirmed Id. at 6. appeal procedure.” matter, municipality thority over a case, In the instant Lieutenant Cox this affirmance. for may be held liable Plain charge discipline against issued a to the instant framework Applying this Major charge sustained tiff. This may case, City be held it clear that as Plaintiffs Adminis Cooper, who served final decision of Chief liable Administering Authority. As the tering Memphis Wright. Although the Plain Authority, Major Cooper suspended City employee disciplined allows Charter appealed then duty. tiff from days than ten for more suspended who is Wright, who acted as decision to Chief to the Civil Service appeal this decision Appeal Authority, and Chief Commission, charter nor the neither the suspension. As Wright sustained beyond the appeal city provides code *15 final Authority, Wright Chief has Appeal a sus- officer receives police MPD when a the making power within Mem decision Memphis, or less. days of ten pension Furthermore, Id. phis Department. Police 34, Charter, Turning § 247. art. Tenn. nor the Memphis neither the Charter procedures, internal then to the MPD’s for further Memphis City provide Code stage for a two re- provides policy MPD suspension, Chief review of Plaintiffs an charge against disciplinary view of a making authority” Wright policy had “final such a procedures, officer. Under these disciplinary respect to Plaintiffs initially reviewed charge is disciplinary at charge. Praprotnik, 485 U.S. Authority.” Memphis “Administering an Plain Accordingly, insofar as Procedures Manu- Dep’t. Pol’y Police unconstitutional, the suspension was tiffs (2003).12 Au- Administering an al 3 While § City may be held liable under rank, no any supervisory thority may of decision of Chief disciplinary the final Squad rank of “Shift or officer below the officer, Wright. may another Major” suspend rank of no officer below the “Precinct/Bu- Dispa- Plaintiffs B. The Merits of may a Commanding Officer” issue
reau rate Treatment Claim days. three Id. suspension greater than City may be Having determined that the Authority Administering sus- an When Appeal an an held liable under 1983 for discipline against offi- charge tains a of omitted). question the of the tations Because Although failed to include record, making policy whether an official has final policy "whether MPD’s manual the law, authority question no policymaking a this Court is particular final is a official has law,” by the record than it is more constrained authority question a of state thus is Praprotnik, cite a Court case not by judge. forbidden to must be determined (internal upon by parties. quo- relied the S.Ct. 915 485 U.S. at ” Authority’s employ- suspend Murray decision to status.’ v. Racing Thistledown less, days Club, (6th turn to Inc., Cir.1985) ee for ten we now the suspen- claim his merits Plaintiffs Lanphear (quoting v. Prokop, 703 F.2d as a result of discrimi- sion occurred racial (D.C.Cir.1983)). 1311, 1315 Accordingly, weighing In dis- employment nation. the prong prima first of the case is face disparate claim asserting crimination adapted require plaintiff the prove applies under treatment this Court “background circumstances support [to] McDonnell frame- Douglas the familiar the suspicion the defendant is that applicable brought in similar work cases employer unusual who discriminates Franks, under Title VII. See v. Weberg majority.” the Sutherland (6th Cir.2000) (“[T]his F.3d court Mich. Dep’t Treasury, 344 F.3d disparate to Title treatment looks VII (6th Cir.2003) (internal quotations omit- analyzing cases for assistance in race dis- ted). Similarly, satisfy the fourth public crimination the con- employment prong, Plaintiff must City show that the 1983.”) text under Under this burden- differently treated similarly em- situated shifting framework: ployees of a different race. Id. prima must plaintiff first set forth [A] a seventeen-year Plaintiff is veteran case of facie discrimination. The burden MPD, City and the does not contest shifts to employer then to articulate job that he qualified for his police as a legitimate, nondiscriminatory some rea- Similarly, officer. City con- does not employer for its actions. If son not reasonably test —and could do so—that burden, carries this must plaintiff suspension from duty constitutes prove by preponderance then employment an “adverse Ac- decision.” evidence the reasons offered case cordingly, this rests first upon the employer pretext were a for discrimina- and fourth prongs prima case: facie tion. The ultimate burden persuasion whether Plaintiff has shown background plaintiff. remains all times with the to support suspicion circumstances Express v. Fed. Corp., Newman F.3d that the is that employer unusual who *16 (6th Cir.2001) (internal quotations against majority, discriminates omitted). and citations differently whether Plaintiff was treated Generally speaking, plaintiff a al similarly employ- than situated non-white employment in leging discrimination em ees. Id. discipline ployee four-part must make a precedent Recent Circuit suggests, Sixth showing in order to set forth a prima facie in the context reverse discrimination “1) a case of discrimination: he member is claims, mere fact that an adverse 2) class; protected of a for qualified was employment decision was made a mem 3) job; employ he suffered adverse minority ber of a racial sufficient 4) decision; ment and was a replaced prong establish the first of the prima person protected outside the or treat class facie Cmty. case. See Zambetti v. Cuyahoga differently similarly ed than non- situated (6th Cir.2002) Coll., Where, protected employees.” Id. at 406. (“[T]he person charge of for here, hiring plaintiff a alleges “reverse dis CCC, Harris, Chief was himself African- is, crimination” —that he member of is a sufficient, opin American. This is in our majority claiming employment discrim ion, satisfy Murray’s, ‘background cir plaintiff burden ination —the bears the requirement.”) “demonstrating intentionally that he cumstances’ Even if this was against ‘despite majority discriminated his to assume that Cox Court were Lieutenant charges of has not filed his white Lieutenant Cox influence over sufficient exerted alleged officer, racial impute his a non-white discipline against supervisors however,13 them, Plaintiff still animus onto prima a alone is insufficient to show facie that he was treated has not demonstrated Rather, that a Plaintiff must show case. similarly situated non- than differently similarly-sanc- engaged minority officer employees. white conduct, a less severe but received tionable a Having has failed to make such testified sanction. Id. Lieutenant Cox charges poor perform- “brought disparate treatment showing, never Plaintiffs an African-American.officer. ance” summary judgment. cannot survive claim (J.A. 563) alone is claims that this Plaintiff “did not Cox to demonstrate
sufficient
C. Conclusion
officers
African [-JAmeriean
treat
rati-
Although
suspension
Plaintiffs
same,”
justifies
holding
a
and therefore
making
policy
an official with final
fied
(Plaintiffs Br. at
that the
is liable.
a
failed to show
authority,
has
however,
a
relies on
argument,
This
treatment.
disparate
case of
prima facie
faulty comparison.
district
Accordingly, the
.decision
similarities between
Superficial
on
granting summary judgment
court
colleagues
and his
disciplined employee
claim is af-
disparate
treatment
prima
are not sufficient to show
facie
firmed.
plain
“[t]he
While
case of discrimination.
an exact correla
tiff need not demonstrate
Correctly
III. The District
Court
more fa
receiving
employee
tion with the
Summary Judgment
Granted
the two to
in order for
vorable treatment
Defendant’s Hostile Environment
‘similarly-situated;’ ...
be considered
Claim
employee with whom the
plaintiff and the
argues
Plaintiff next
that his al
or her
compare
himself
plaintiff seeks
leged
mistreatment
Lieutenant Cox
the relevant
similar in all of
self must be
To
created a hostile work environment.
(in
Ercegovich,
In addition charges Plain opinion, Major Cooper own affirmed Cox’s only by his supported falsely Plaintiff, against Cox that Lieutenant in retaliation alleges tiff also cursing, yelling, and 21, of filing. accused Plaintiff February Plaintiffs EEOC April the during throwing papers retaliation this claim of unlawful brings He suspension, and to his incident which led Be- and the THRA. under both Title VII proper no had that Lieutenant Cox “legislature intended the Tennessee cause him to write a memo require grounds to with federal the THRA to be coextensive officer was wan why police a retired about law,” stat- a retaliation claim under both support To his first building. dering the v. analysis. Phillips utes follows the same Major Cooper’s cites to allegation, Plaintiff L07, 974 Corp. Hotels No. Interstate accused testimony that Lieutenant Cox (Tenn.1998). 680, S.W.2d affidavits of and to the cursing, Plaintiff of case prima To establish facie they do not state that two witnesses who retaliation, that: Plaintiff must establish support To any cursing. such recall “(1) activity protected by engaged Plaintiff cites testi allegation, second (2) VII; of his civil Title exercise major, police mony Cooper and another (3) defendant; rights was known to the police that a retired state both of whom thereafter, employ took an the defendant at pic to look permitted officer should plaintiff; action adverse to the ment tures, the desk officer was long as so (4) connection between there was a causal officer’s location. the retired aware of activity em protected adverse evidence, Plaintiffs Glaringly from absent City Nguyen action.” v. ployment however, might raise an anything which (6th Cleveland, Cir. racially motivated harass inference 2000). temporal proximity between al While might evidence Plaintiffs ment. While and an of Title VII jury a reasonable to determine assertion low overreacted, that he high employment provides Lieutenant Cox adverse action Plaintiff, or even particularly not like does a causal connec ly probative evidence of may have at times behaved ob that Cox tion, proximity alone will “temporal for Plain support no noxiously, provides it retaliatory discrim support inference racial ani conclusory allegations of tiffs compelling no other ination when there is “general does not create mus. Title VII evidence.” Id. it forbids civility workplace; in the code” that “the fact that Plaintiff claims Faragher racially motivated harassment. just retaliatory occur two [sic] events Raton, Boca charge of discrim months after EEOC (1998). 141 L.Ed.2d 118 S.Ct. support enough ination is itself bias, impermissible of such proof
Absent
(Plaintiffs
causal connection element.”
claim cannot
hostile environment
a misstatement of
simply
Br. at
This is
summary judgment. Accordingly,
survive
other evidence of retalia
the law. Absent
granting
court
the decision of the district
tion,
claim must fail.
Plaintiffs retaliation
claim is af
summary judgment on this
As
addi
Nguyen,
ever, KING, Plaintif-Appellant, Sean excluded this statement as inadmissi- hearsay, and Plaintiff does not chal- ble lenge appeal. Faced with exclusion on AMBS, Kevin Township Columbia additional competent
no evidence of retali- Officer, ation, Police in his prop- we hold that the district court individual capacity, Defendant-Appellee. erly granted summary judgment to the City. No. 06-2054.
CONCLUSION United of Appeals, States Court properly granted The district court sum- Sixth Circuit.
mary judgment to the on each of Argued: April Plaintiffs claims. Under Jett, holding in Court’s does not Decided and March Filed: private of action against create cause municipality. U.S.
2702. Because we that no conclude Su- Congress Court case or Act of
preme has we holding,
overturned this have no choice reject
but 1981 claims.
Similarly, Plaintiffs other claims lack mer- Both disparate
it. his treatment and hos- require
tile environment a showing claims City employees motivated by were animus, record provides
racial but the no alleged
evidence ill-treatment of
Plaintiff was influenced his race. Plain-
tiffs retaliation claim also fails because entirely
Plaintiff relies almost on inadmis- hearsay in support
sible evidence of this
claim. Inasmuch as Plaintiffs law,
claim fails as a matter and no jury
reasonable could find facts supporting claims,
Plaintiffs additional we AFFIRM district granting court’s decision sum-
mary judgment City. to the
COOK, Judge, concurring part Circuit concurring judgment. concur in judgment opinion
I court exception analysis with the of its Rights reliance on the Civil Act of legislative history.
1991’s
notes
testimony, Lieuten-
deposition
id.
In
See
Giannini,
charge
of discrimina
once filed
that he was cleared of
ant Cox testified
Cox with the
against Lieutenant
tion
investiga-
after a substantial
any charges
assuming that
these inci
Even
EEOC.
Although
attorney.
an EEOC
Cox
tion
part
on the
impermissible bias
prove
dents
personal knowledge
have
does not
Cox,
assuming
and even
of Lieutenant
investigation,
of this
he testified
full extent
a “clear and
they are sufficient to establish
required to attend “several
that he was
pattern” of discrimination
persistent
“anywhere from
lasting
interviews” each
Cox, they
insufficient to
are
Lieutenant
an hour.” Plaintiff does not
30 minutes to
of inaction on the
demonstrate
custom
place,
took
or
deny
investigation
that this
City.
part of the
cleared of the
that Lieutenant Cox was
City’s
establish that
In order to
against
him
Officer
allegations leveled
amount to an
“failure to act can be said to
Giannini.
inaction,”
the evidence
policy
official
Furthermore,
sup-
the record does not
just
more than
“a collec-
must demonstrate
claim that Lieutenant Cox
port Plaintiffs
reckless, over-
sloppy,
or even
tion
”
un-
“egregious
obviously
Rather,
engaged
Doe,