Raymond DAVIS, Sr., Plaintiff-Appellant, v. CITY OF CLARKSVILLE, Defendant-Appellee.
No. 11-5040.
United States Court of Appeals, Sixth Circuit.
July 13, 2012.
492 F. App‘x 572
III. CONCLUSION
Becausе Ohio law does not create a liberty interest in parole, Jergens‘s
OPINION
KAREN NELSON MOORE, Circuit Judge.
When Raymond Davis, a domestic-violence investigator for the City of Clarksville (“City“), first sued his employer in 2006 for racial discrimination in the workplace, the City settled the case. Two years later, Davis was terminated for allegedly making false statements in an incident report. Davis again sued the City raising claims of unlawful employment discrimination and retaliation under federal and state law. This time the district court granted summary judgment to the City on all claims, and Davis now appeals. For the following reasons, we AFFIRM.
I. BACKGROUND
Davis, an African American male, worked for the City of Clarksville Police Department from 1993 until his termination in March 2009. From 2000 until the time of his termination, Davis was employed as a domestic-violence investigator. On January 13, 2006, Davis sued the City of Clarksville alleging racial discrimination and a racially hostile work environment. Davis and the City settled in March 2007, and Davis continued his employment with the City. Alonzo Ansley was aрpointed as the interim Chief of Police on February 1, 2007, and was eventually appointed Chief of Police on September 25, 2007. R. 17-3 (Ansley Aff. at 12) (Page ID # 94).
Davis claims that since he settled his 2006 lawsuit, the racially hostile work environment has continued. Both on appeal and below he provides a litany of racial epithets and derogatory comments overheard within the Clarksville Police Department. Appellant Br. at 5-9; R. 27 (Pl.‘s Opp. to Summ. J. at 3-4) (Page ID # 591-92). Davis does not dispute, however, that these incidents are the same ones that he identified in his initial lawsuit and that virtually all of them occurrеd before or during 2006. Since Ansley became Chief, Davis identifies only two instances of offensive remarks at work that he claims went unpunished: a racist text message that circulated in the department and a racially derogatory remark by Mike Parr, a member of the command staff. See Appellant Br. at 10-11; R. 27 (Pl.‘s Opp. to Summ. J. at 5) (Page ID # 593).1
Davis also claims that his work was overly scrutinized on three separate occasions since the settlement: (1) in February 2008 he inquired why officers did not arrest the primary aggressor in a domestic-violence report and was told no action would be taken; (2) in July 2008 he waited an extra day to complete an investigation and was accused of not doing his job, and he was questioned regarding why he used an incorrect case number on his report; and (3) in January 2009 he investigated a rape but ultimately determined one had not occurred and was then questioned about his decision. R. 17-1 (Resps. to
The main fact dispute, however, arises over an attempted traffic stop on December 17, 2008. Davis was driving northbound on Highway 41A in an unmarked police vehicle when he observed a white Caravan, driving at a high rate of speed, run the traffic light at the intersection with Cunningham Lane. R. 34-1 (Davis Dep. at 62-66) (Page ID # 696-97). Davis attempted to conduct a traffic stop of the vehicle, including flashing his blue lights and at one point exiting his vehicle and aрproaching the van in an effort to get the driver to stop. See R. 17-1 (Resps. to Interrogs. at 17) (Page ID # 86). When the vehicle instead ran through another light, Davis testified at his deposition that he got back in his vehicle, activated his sirens, and radioed the police dispatch. R. 34-1 (Davis Dep. at 77-80) (Page ID # 700). Dispatch instructed him to “back off” and notify the Oak Grove police department, which Davis did. R. 17-1 (Resps. to Interrogs. at 17) (Page ID # 86).
During the incident, a civilian driver named Lisa Hendrickson called 911 at approximately the same time as Davis was on the phone with dispatch. Compare R. 17-11 (Davis Call Log) (Page ID # 182) with id. (Hendrickson Call Log) (Page ID # 183). In the call, she indicates that an undercover officer had just tried to stop a vehicle at an intersection on Fort Campbell Boulevard (another name for Highway 41A) near the military base and had pulled a gun on the subject at the light. R. 17-11 (Hendrickson Call Log) (Page ID # 183). She later identified the location as the light near a Mapco Express and one of the gates to Fort Campbell, which she agreed was Jack Miller Boulevard. R. 17-10 (Pre-Decision Hr‘g Tr. at 147-48) (Page ID # 176). Davis maintains that he was not near Jack Miller Boulevard during the incident and that this witness must have observed a different white Caravan or a different officer exit his vehicle and draw his weapon. See R. 32 (Pl.‘s Stmt. Facts at 6) (Page ID # 672) (“The witness identified an officer other than Plaintiff.“).
Davis prepared several incident reports and arrest-warrant affidavits relating to this incident. In these reports, he explicitly states that “[a]t no time did I unholster my weapon.” R. 17-11 (Internal Report) (Page ID # 181). He also provides inconsistent accounts of when he exited his vehicle. Compare id. (“At 41A/Quinn I exited my vehicle.“) with id. (Incident Report) (Page ID # 187) (“[W]hen vehicle reached 41A/Pkwy affiant notified dispatchers of situation and exited vehicle.“). And the list of which traffic lights the white van ran through also varies from report to report. Compare id. (Internal Report) (Page ID # 181) (citing “Cunningham,” “Quinn,” and “Parkway“) and id. (Incident Report) (Page ID # 187) (same) with id. (12/17/08 Probable Cause Aff.) (Page ID # 192) (citing “Cunningham,” “Quinn,” “Parkway,” and “Ringgold“) and id. (12/18/08 Probable Cause Aff.) (Page ID # 198) (citing “Cunningham,” “Quinn,” “Parkway,” “Ringgold,” and “Lady Marion“); see also R. 34-1 (Davis Dep. at 87) (Page ID # 702) (testifying that he lost visual sight of van “between Ringgold Road and Lady Marion“).
Davis agrees that any time an officer unsuccessfully attempts to stop a vehicle, called a “nonpursuit,”2 the police investi-
Chief Ansley then held a pre-decision hearing, in which Davis was questioned regarding the incident. Davis played the recordings of both his conversation with dispatch and Sergeant Saunders‘s interview with Lisa Hendrickson. Hendrickson was interviewed by Sergeant Saunders on December 29, 2008, and she stated that she cоuld not recall the exact intersection but that it was near a gas station and either Gate One or Gate Three for Fort Campbell. R. 17-10 (Pre-Decision Hr‘g Tr. at 141-42) (Page ID # 175). Saunders asked her if she maybe meant near the Walmart, which is located on Quinn Lane just before 101st Airborne Parkway, and she was adamant that it was closer to the Fort than the Walmart. Id. at 142 (Page ID # 175). He suggested maybe near Gate One and the Mapco Express and she said “Yes.” Id. When Sergeant Saunders later confirmed that this was Jack Miller Boulevard, she again said “Yes.” Id. at 145, 148. She testified that the white Caravan stopped at this light even though nobody was in front of it, but then an undercover police officer stopped his car behind the van, “got out, drew his gun,” and then, when the light turned green, the van took off, and the officer got back in his car and followed. Id. at 148. The officer‘s vehicle was unmarked and had its lights on, but Hendrickson did not hear sirens. Id. at 148-49.
Davis‘s conversation with dispatch was also played, but Davis claims that the version he was given by the County (which he admits is administratively separate from the City) was different from the initial version played to him by Sergeant Saunders. Davis believes that the City doctored the tape to suggest that Davis himself said he was near Jack Miller Boulevard, which was his location reflected in the call log. See R. 17-11 (Davis Call Log) (Page ID # 182) (“traveling nb coming up on jack miller“); R. 17-10 (Pre-Decision Hr‘g Tr. at 129) (Page ID # 172) (transcription of recording: “He just went through another red light at, uh, 41 and Jack Miller.“). Davis conceded to Chief Ansley that it was his voice on the tape, id. at 130 (Page ID # 172), but maintained
The record reflects at least three other officers who were investigated for allegations of untruthfulness during Chief Ansley‘s tenure: Jon Cummings, John Price, and James Moore. Officer Cummings allegedly lied about leaving a conference early. Chief Ansley decided termination was appropriate, and Officer Cummings voluntarily resigned instead. See R. 32 (Pl.‘s Stmt. Facts at ¶¶ 38-39) (Page ID # 678). Officer Price allegedly lied about the number of hours he worked. Chief Ansley again recommended termination and permitted Officer Price to resign voluntarily instead. Id. at ¶ 40 (Page ID # 678). Officer Moore allegedly lied аbout how a department-issued cell phone had been damaged. Officer Moore was given a hearing, during which Chief Ansley concluded that Officer Moore had simply misunderstood the initial question, and the charge of untruthfulness was not sustained. Id. at ¶ 44 (Page ID # 679-80). All three of these officers are Caucasian.4
In March 2009, Davis filed for and obtained a right-to-sue letter from the EEOC challenging his termination on the basis of retaliation. He did not claim that the conduct was a continuing action or identify any other form of discrimination other than retaliation. See R. 17-2 (EEOC Charge) (Page ID # 93). On June 25, 2009, Davis sued the City raising various state and federal employment-discrimination claims.5 The City moved for summary judgment on all claims, which the district court granted.6 Davis appeals the grant of summary judgment on only the claims relating to his termination—unlawful discrimination and retaliation—under federal and state law.
We afford de novo review to a district court‘s grant of summary judgment. Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir. 2004). Under
III. MOTION TO TAKE JUDICIAL NOTICE
As a preliminary matter, we must resolve Davis‘s motion for this court to take judicial notice of certain exhibits not filed in the district court. After failing to attach certain exhibits to his opposition to the City‘s summary-judgment motion, Davis unsuccessfully tried to supplement the record before the district court and this court. See R. 56 (8/24/2011 D. Ct. Order) (denying mоtion to supplement); Davis v. City of Clarksville, No. 11-5040 (6th Cir. Oct. 26, 2011) (order) (denying motion to supplement). Currently pending is a motion by Davis for this court to take judicial notice of the exhibits. We decline to do so.
We may take judicial notice of “a fact that is not subject to reasonable dispute” either because such a fact “is generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
IV. CLAIM OF UNLAWFUL RACIAL DISCRIMINATION
To make out a prima facie case of discrimination under Title VII, a plaintiff must show “(1) that he is a member of a protected group; (2) that he was subject to an adverse employment action; (3) that he was qualified for the position from which he was fired; and (4) that he was treated differently than employees outside of the protected class for the same or similar conduct.” Singfield, 389 F.3d at 561. The parties agree that Davis has satisfied the first three elements—Davis is an African American, his employment was terminated, and he was qualified for his position. The only issue is whether Davis has identified similarly situated employees not of the protected class who were treated differently.
To be similarly situated in the disciplinary context, “the plaintiff and his рroposed comparator must have engaged in acts of comparable seriousness.” Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (internal quotation marks and emphasis omitted). We consider “whether the individuals have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer‘s treatment of them for it.” Id. The plaintiff‘s obligation is not to show an exact correlation with another employee, but instead that “the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself [are] similar in all of the relevant aspects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (internal quotation marks omitted).
The district court held that Davis had failed to identify a non-protected individual “who was investigated for untruthfulness, was ultimately found untruthful, and subsequently retained his position.” R. 46 (D. Ct. Order at 15) (Page ID # 924). We disagree that these were the correct parameters for identifying a similarly situated employee to Davis. Where, as here, the plaintiff disputes that he engaged in
Here, Moore and Davis were both accused of compаrable misconduct—dishonesty to a superior—and their conduct and statements were evaluated by the exact same supervisor, Chief Ansley. We do not consider that the department ultimately found Moore to be merely confused and Davis untruthful because the validity of those findings is what Davis disputes. The plaintiff‘s burden of establishing a prima facie case “is not onerous.” Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). And we “may not consider the employer‘s alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case,” because doing so would deprive Davis of the opportunity of demonstrating that the employer‘s reason was merely pretext. Wexler v. White‘s Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc). Davis has met his burden of establishing a prima facie case because he identified a white officer, Officer Moore, who was also accused of untruthfulness but was not terminated following an investigation into his acts by Chief Ansley.
The burden therefore shifts to the City to offer admissible evidence of a legitimate, nondiscriminatory reason for terminating Davis‘s employment. Clay v. United Parcel Serv., Inc., 501 F.3d 695, 705-06 (6th Cir. 2007). The City has satisfied its burden because it has identified the City‘s policy against dishonesty, past instances of termination basеd on dishonesty, and a basis in the record for its belief that Davis was dishonest: the inconsistent reports he filed and the eyewitness testimony that conflicted with Davis‘s version of events. The burden thus shifts back to Davis to offer evidence sufficient for a jury to find that the employer‘s reason was pretext.
A plaintiff may demonstrate pretext by showing “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer‘s action, or (3) that they were insufficient to motivate the employer‘s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). To survive summary judgment, Davis “must produce sufficiеnt evidence from which a jury could reasonably reject” the City‘s explanation why it fired him. Id. Here, Davis challenges the factual basis underlying his termination. He has testified under oath at his deposition that he was not dishonest; he did not draw a gun when pursuing the white van, and he was not at the same intersection as the eyewitness who saw an officer draw his weapon. Although the City has certainly presented ample evidence to counter Davis‘s testimony—the independent eyewitness account and the alleged recording of Davis putting him at Jack Miller Boulevard—we will not question Davis‘s crеdibility in reviewing summary judgment. Anderson, 477 U.S. at 255.
Even when a plaintiff has demonstrated an issue of fact regarding the va-
Here, the City has offered evidence that it conducted a reasonable investigation and relied on particularized facts in terminating Davis for dishonesty. The City appointed Timothy Saunders, an officer with no past history of racial animus, to investigate the allegation of untruthfulness and interview Davis and the potential eyewitness. Numerоus reports written by Davis himself, which he does not claim were doctored, present inconsistent information about the incident on December 17, 2008. There is a recording of Davis stating in his own voice that he was at a different location. Chief Ansley conducted a two-day pre-decision hearing during which Davis was allowed to fully explain his version of the events and his reasons for believing that the dispatch record of his call was altered. Chief Ansley also heard the recording of Sergeant Saunders‘s call with Lisa Hendrickson, the third-party witness, who testified that she saw an officer in an unmarked vehicle attempt to pull over a white van by exiting his car with his weapon drawn. Davis did not dispute attempting to pull over a white van and at one point exiting his car and approaching the driver. Chief Ansley also had access to the call logs of both Davis and Hendrickson suggesting that the incidents were at or near the same time. On the basis of this evidence, the City determined that Davis was untruthful about the events on December 17, 2008, and terminated his employment.
The City is not required to be factually correct in its assessment of Davis‘s behavior so long as the City has an “honestly held belief in a nondiscriminatory reason supported by particularized facts after a reasonably thorough investigation.” Wright, 455 F.3d at 709 (holding employer had honest belief based on thoroughness of investigation). Although Davis has consistently maintained that he was never dishonest, he has not challenged the sufficiency of Saunders‘s or Ansley‘s investigation or the process that he received leading up to his termination. Furthermore, Davis has “offered no evidence to indicate that [the City] made its decision on grounds other than those offered.” Id. at 709. The City has adequately identified particularized facts supporting the thoroughness of its investigation and its honestly held belief that Davis was untruthful and not merely mistaken.
Because we review summary judgment de novo, we may affirm on any ground presented in the record. City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d 244, 251 (6th Cir. 1994). Therefore, although we disagree with the district court‘s determination that Davis failed to establish a prima facie case of discrimination, we nonetheless affirm the grant of summary judgment in favor of the City on Davis‘s claims of racial discrimination under Title VII. His claims under the Tennessee Human Rights Act (“THRA“) must therefore fail as well. Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 993 (6th Cir. 1999) (holding THRA claims apply same framework as Title VII).
We employ the same burden-shifting framework to retaliation claims as we do to employment-discrimination claims. Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009). This means that even if Davis establishes a prima facie case of retaliation, he would still be required to establish pretext because the City has articulated a legitimate, nondiscriminatory reason for his termination. As discussed above, the City has defeated any inference of pretext because the City has sufficiently demonstrated a reasonably held belief based on particularized faсts that Davis had been untruthful. We therefore need not consider whether the district court properly concluded that Davis had failed to make a prima facie showing on the element of causation. Summary judgment is appropriate on Davis‘s retaliation claims under federal and state law as well. Chen, 580 F.3d at 402.
VI. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court‘s grant of summary judgment to the defendant.