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affirming the district court's grant of summary judgment to the defendants on the pro se plaintiff's hostile work environment and retaliation claims, where the plaintiff failed to specifically address the defendants' arguments in response to their summary judgment motion
Summary of this case from Nykoriak v. City of HamtramckOpinion
No. 12-4329
08-08-2013
ANTHONY T. CAMPBELL, Plaintiff-Appellant, v. JEFF HINES, Environmental Administrator, Ohio Environmental Protection Agency; MIKE STARKEY, Environmental Manager for the Division of Emergency and Remedial Response, Ohio Environmental Protection Agency; BRIAN NICKEL, Environmental Supervisor for the Division of Emergency and Remedial Response, Ohio Environmental Protection Agency; SCOTT J. NALLY, Director, Ohio Environmental Protection Agency, Defendants-Appellees.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
ORDER
Before: SILER, CLAY, and KETHLEDGE, Circuit Judges.
Anthony T. Campbell, a pro se Ohio resident, appeals a district court judgment dismissing his civil rights complaint filed pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e; 42 U.S.C. § 1983; and state law. This case has been referred to a panel of the court pursuant to Federal Rule of Appellate Procedure 34(a)(2)(C). Upon examination, we unanimously agree that oral argument is not needed. Fed. R. App. P. 34(a).
Campbell, an African American, is an employee of the Ohio Environmental Protection Agency (EPA). From 1999 through 2006, Campbell worked as an Environmental Specialist II on the "Mound" site. As the work at the Mound site neared completion, Campbell and his supervisor, Brian Nickel, discussed transfer options and Campbell's job duties were subsequently updated to include continued review of the Mound site, but with 40% of his work now being in the Emergency Response (ER) unit. The other members of the ER unit included Jim Crawford, Dale Farmer, and Dave Combs; Nickel remained Campbell's direct supervisor. In late 2006, Campbell began training as an on-scene coordinator (OSC), which included "shadowing" Crawford and Farmer. In 2007, Crawford developed a training program for Campbell to assist with Campbell's knowledge of the ER duties. However, by the end of 2007, Crawford expressed concern that Campbell had not improved his work performance or his report writing skills.
In 2008, both Crawford and Nickel expressed concerns with Campbell's ability to perform as an OSC, and met with Campbell to set goals for improvement in his work. In addition, Crawford developed a written ER guidance test, based on a similar test that he had administered to two employees in the 1990s, including Farmer, which Campbell was required to pass. Campbell objected to the test, but passed it with a score of 72% on his second attempt. In August 2009, Nickel prepared Campbell's performance evaluation, giving him an overall rating of "unsatisfactory." Campbell appealed his performance evaluation, filed a grievance, and challenged the ER guidance test as discriminatory. Campbell's appeal and grievance were denied, but the negative evaluation was removed from his personnel file. In 2009, Nickel, Mike Starkey, and Jeff Hines decided to remove Campbell's ER duties after consulting with Crawford and an employee from the ER central office, and concluding that Campbell had not significantly improved his work performance or knowledge of his duties. Campbell's job description was amended to change 40% of his work from the ER unit to "remedial response work," with a resulting reduction in overtime pay. Thereafter, Campbell filed a charge of discrimination with the Equal Employment Opportunity Commission.
In December 2010, Campbell sued the Director of the Ohio EPA, Scott Nally, as well as Nickel, Starkey, and Hines. In his amended complaint, Campbell asserted four claims: (1) race discrimination in violation of Ohio Revised Code Chapter 4112; (2) denial of his substantive due process and equal protections rights, under 42 U.S.C. § 1983; and (3) race discrimination in violation of Title VII; and (4) retaliation in violation of Title VII. On July 14, 2011, the district court granted the defendants' motion to dismiss, in part, and the case proceeded on Campbell's Title VII claims against the defendants in their official capacities and Campbell's § 1983 equal protection claim against the defendants in their individual capacities.
Thereafter, the defendants filed a motion for summary judgment and Campbell responded. The district court granted summary judgment to the defendants on Campbell's disparate treatment and disparate impact claims. The district court also concluded that Campbell had abandoned his hostile work environment, retaliation, and equal protection claims because his response to the defendants' motion for summary judgment consisted of conclusory allegations and because he failed to respond to the defendants' argument that they are entitled to qualified immunity.
Campbell has filed a timely appeal, reasserting his claims that the defendants' (a) failure to properly train or supervise him and their race-based evaluation practices subjected him to disparate treatment, (b) arbitrary ER guidance test had a disparate impact on African Americans, (c) conduct created a hostile work environment, (d) transfer of his ER duties constituted retaliation for his complaints about the evaluation procedures, and (e) actions violated his right to equal protection. Finally, Campbell argues that the district court improperly required him to present more evidence than is required in order to survive summary judgment.
We review de novo the district court's grant of summary judgment. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010). Summary judgment is appropriate when the evidence presented 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). The moving party bears the burden of showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The party opposing a motion for summary judgment "'may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted); see Fed. R. Civ. P. 56(c).
To establish a Title VII violation, a plaintiff may rely on direct or circumstantial evidence. See, e.g., Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012). Where, as here, the plaintiff does not base his claim on direct evidence, his circumstantial evidence is analyzed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. See, e.g., Chattman, 686 F.3d at 346-47; Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008). Under that framework: (1) the plaintiff must first establish a prima facie case of discrimination; (2) the burden then shifts to the defendant to offer a legitimate, non-discriminatory basis for its actions; and (3) if the defendant does so, the burden returns to the plaintiff to establish that the employer's proffered reason is a pretext. See, e.g., Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). Under the third prong, the pretext analysis focuses on "a commonsense inquiry: did the employer fire the employee for the stated reason or not? . . . At the summary judgment stage, the issue is whether the plaintiff has produced evidence from which a jury could reasonably doubt the employer's explanation. " Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009).
Campbell's Title VII disparate treatment claim fails under that framework. To establish a prima facie claim of disparate-treatment discrimination under Title VII, a plaintiff must prove: "(1) membership in the protected class; (2) that he or she suffered from an adverse action; (3) that he or she was qualified for the position; and (4) that he or she was treated differently from similarly situated members of the unprotected class." Chattman, 686 F.3d at 347 (internal quotation marks omitted). Campbell argued that the defendants engaged in a pattern of disparate supervision practices based on his race, which included requiring only him to take an allegedly arbitrary test concerning his knowledge of his job duties, failing to properly train and supervise him, failing to provide him with performance evaluations, refusing to allow him to take his car home as other ER employees were permitted, and requiring him to file an insurance claim when his laptop was stolen even though other employees were simply reimbursed by the EPA. Campbell submitted an affidavit and the deposition testimony of Hansel and Nordstrom to support his allegations that he was not being properly trained and supervised and that he was the only employee required to take the ER Guidance test.
Although Campbell alleged facts sufficient to establish the first three elements of a disparate treatment claim, he failed to establish that he was treated differently than similarly situated members of the unprotected class. Campbell failed to establish that the other employees in the ER unit — Crawford, Farmer, and Combs — were similarly situated to him because they had significantly more experience in the ER unit than he had, and there is no evidence that they displayed similar work performance deficiencies.
Even assuming that Campbell established a prima facie case of disparate treatment, the defendants articulated legitimate, non-discriminatory motives for his negative performance evaluation, the need for administering the ER Guidance test, and for eventually removing his ER duties. Specifically, the defendants presented ample evidence that Crawford, the most senior OSC and lead worker in the ER unit, repeatedly expressed his concern that Campbell was unable to satisfactorily perform his OSC duties. Campbell's supervisor, Nickel, also expressed his belief that Campbell could not adequately perform his OSC duties. Although Campbell argued that he did not receive proper training and supervision, the record reflects that the defendants discussed their concerns over his job performance with him on numerous occasions, and that they produced training documents and established training goals and objectives designed to improve his knowledge of his job duties and improve his report writing skills. Furthermore, Crawford began meeting with Campbell weekly from October 1, 2008, through December 11, 2008, to discuss any progress in Campbell's work performance.
Although Campbell argued that he was the only ER employee required to take the Guidance test, Crawford averred that he designed the test to focus Campbell on attaining knowledge of the job, and that he based the test on a similar one that he had administered to Farmer in the 1990s. Despite the measures taken to assist Campbell, Nickel and Crawford continued to express dissatisfaction with Campbell's performance of his duties. Another ER supervisor, James Mehl, also expressed concern over Campbell's work in an email to Nickel. In December 2008, Crawford prepared a report describing Campbell's work performance and the lack of any significant improvement. Crawford provided the report to Nickel, and eventually, Nickel, Starkey, and Hines decided to remove Campbell's ER duties based on his unsatisfactory work performance. The district court properly concluded that the defendants' evidence articulated a legitimate, non-discriminatory reason for removing Campbell's ER duties. Moreover, Campbell failed to present any evidence from which a jury could reasonably doubt that the defendants removed his ER duties based on his sub-par work performance. See Chen, 580 F.3d at 400 n.4. Therefore, the district court properly granted summary judgment to the defendants on Campbell's disparate treatment claim.
The district court also properly granted summary judgment to the defendants on Campbell's Title VII disparate impact claim. Campbell argues that the defendants required him to pass the ER Guidance test, a test that he argues was arbitrary and was not designed to assess his potential job performance. "Disparate impact cases typically are concerned with facially neutral practices or standards that in fact work to place a disproportionate burden on a discrete group of employees who are protected under Title VII." Lynch v. Freeman, 817 F.2d 380, 383 (6th Cir. 1987). The Supreme Court has formulated a three-part burden-shifting test to ascertain whether an unlawful disparate impact exists in any specific case. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Isabel v. City of Memphis, 404 F.3d 404, 411-12 (6th Cir. 2005). "First, the plaintiff must establish a prima facie case of discrimination-i.e., the plaintiff must establish that an adverse impact has occurred. If the plaintiff succeeds, the employer must show that the protocol in question has 'a manifest relationship to the employment'-the so-called 'business justification.'" Isabel, 404 F.3d at 411 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)). "If the employer succeeds, the plaintiff must then show that other tests or selection protocols would serve the employer's interest without creating the undesirable discriminatory effect." Id. at 411.
A prima facie case is established when: "(1) plaintiff identifies a specific employment practice to be challenged; and (2) through relevant statistical analysis proves that the challenged practice has an adverse impact on a protected group." Id. (citing Johnson v. U.S. Dep't of Health & Human Servs., 30 F.3d 45, 48 (6th Cir. 1994)). It is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is "responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988).
The district court properly concluded that Campbell's disparate impact claim fails because Campbell did not present sufficient allegations, statistical or otherwise, to show that being required to pass the ER Guidance test had a disparate impact on African Americans. First, Campbell acknowledged that the test was not part of a normal evaluation "practice" in the ER unit. Second, Campbell was the only African American employed in the ER unit, and therefore he cannot provide any statistical evidence that requiring him to pass the test had an adverse impact on a protected group.
The district court properly concluded that Campbell had abandoned his hostile work environment and retaliation claims. In their motion for summary judgment, the defendants argued that Campbell had failed to allege facts stating a prima facie case of hostile work environment or retaliation because (a) Campbell's allegations of being "micro-managed" were insufficient to show that the defendants had subjected him to racial harassment or intimidation which created an offensive work environment, and (b) he did not show a causal connection between his alleged protected activity, challenging the requirement that he take the ER Guidance test, and the removal of his ER duties because the protected activity occurred approximately one year before his ER duties were removed. Campbell failed to specifically address these arguments in his response, and he failed to present anything more than conclusory allegations in support of these claims. In light of Campbell's failure to address the defendants' arguments in his response to the summary judgment motion, the district court properly declined to consider the merits of the claims. See Hicks v. Concorde Career Coll., 449 F. App'x 484, 487 (6th Cir. 2011); Clark v. City of Dublin, 178 F. App'x 522, 524-25 (6th Cir. 2006); see also Harper v. Vigilant Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005). Likewise, the district court properly declined to address the merits of Campbell's equal protection claim, because he failed to respond to the defendants' argument that they were entitled to qualified immunity.
Finally, Campbell presents no arguments challenging the district court's July 2011 order dismissing certain claims. Therefore, those claims are considered abandoned and are not reviewable. See Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 618 n.1 (6th Cir. 2008).
Accordingly, we affirm the district court's judgment. Fed. R. App. P. 34(a)(2)(C).
ENTERED BY ORDER OF THE COURT
/s/
Clerk