NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0380n.06
FILED
No. 10-5193
Jun 06, 2011
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MICHAEL TODD HIGHFILL, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
THE CITY OF MEMPHIS, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Michael Todd Highfill
appeals the district court’s grant of summary judgment to the City of Memphis in this civil-
rights action alleging that his termination from his position as a Memphis firefighter was
racially motivated, in violation of 42 U.S.C. §§ 1981 and 1983. The City maintains that
Highfill was terminated due to his failure to complete his Firefighter II certification within 36
months, a condition of his employment contract. Highfill, who is Caucasian, contends that
African-American firefighters who also failed their certification exams were provided with
tutors and given additional time to complete their certifications.
Initially, the City challenged the timeliness of Highfill’s reverse-discrimination claims,
and the district court held that the section 1983 claims were barred by the statute of
No. 10-5193
Highfill v. City of Memphis
limitations. However, the court found that the claims based on section 1981 jurisdiction
were timely, and the defendant concedes this point on appeal. We therefore pretermit
further review of this question.
The district court also found that Highfill had failed to establish a prima facie case
of discrimination because he did not prove, first, that he was qualified for continued
employment at the time of his termination and, second, that similarly-situated African-
American firefighters were treated more favorably than he. The district court made
additional rulings below but review of those questions – such as the existence of
“background circumstances” to support this reverse-discrimination claim and the plaintiff’s
allegation of pretext – becomes unnecessary in the absence of a prima facie case. We
conclude that the record supports the district court’s grant of summary judgment and,
therefore, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Highfill was hired as a firefighter and paramedic by the City of Memphis in April
2001. Under the terms of Highfill’s employment agreement, he was required to complete
his Firefighter I certification within 12 months of the date of his hire and his Firefighter II
certification within 36 months of the date of his hire. He successfully completed his
Firefighter I certification exam in July 2001. Although he passed the practical portion of his
Firefighter II certification exam in May 2003, he failed to pass the written portion despite
the fact that he took the test twice. His passing score for the practical portion of the
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Highfill v. City of Memphis
Firefighter II certification exam expired one year later, in May 2004. In August 2004,
Highfill took that portion of the Firefighter II certification exam again, but this time he did
not pass it, nor did he complete the other portion of the Firefighter II exam.
Highfill was not dismissed immediately but, following a hearing on October 11, 2004,
he was terminated from employment with the City on October 22, 2004, just over three-
and-a-half years from the date of his hire. Highfill filed this action in July 2007, claiming
racial discrimination motivated his dismissal.
DISCUSSION
We review the district court’s grant of summary judgment de novo. See Wimbush
v. Wyeth, 619 F.3d 632, 636 (6th Cir. 2010). The court’s order must be upheld if there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). We review the evidence in the light most favorable to the
non-moving party, but in order to defeat a motion for summary judgment, that party is
nevertheless required to “come forward with ‘specific facts showing that there is a genuine
issue for trial.’" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986), (quoting Fed. R. Civ. P. 56 (e)). "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).
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Section 1981 proscribes discrimination on the basis of race in the making or
enforcement of contracts and provides, in pertinent part:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes
the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.
42 U.S.C. §§ 1981(a) and (b). Section 1981 liability attaches to a municipal defendant only
if the allegedly discriminatory actions are based on official municipal policy or custom. See
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989) (“Thus to prevail on his claim
for damages against the [defendant], petitioner must show that the violation of his ‘right to
make contracts’ protected by § 1981 was caused by a custom or policy”).
In this case, the district court granted the City’s motion for summary judgment on
Highfill’s discrimination claims because it found that Highfill failed to establish a prima facie
case of discrimination. In order to make out a prima facie case of reverse discrimination,
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a litigant must show that: (1) he is a member of a protected class; (2) he was qualified for
the job; (3) he experienced an adverse employment action; and (4) he was replaced by a
person outside the protected class or he was treated differently than a similarly situated
non-protected employee. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). In a reverse-discrimination case, circuit precedent adds as an requirement that the
plaintiff must demonstrate “background circumstances [to] support the suspicion that the
defendant is that unusual employer who discriminates against the majority.” Leadbetter v.
Gilley, 385 F.3d 683, 690 (6th Cir. 2004) (internal quotation marks omitted). Once a
plaintiff successfully meets all the requirements for a prima facie case, the burden of
production then shifts to the defendant to offer a legitimate, non-discriminatory reason for
terminating the plaintiff. See Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981)). If the defendant meets this burden, the burden of production once again
shifts to the plaintiff to demonstrate that the proffered reason is false or pretextual. Id.
The district court found that Highfill failed to establish three of the elements of his
prima facie case: (1) that he was qualified for his position, (2) that similarly-situated
firefighters were treated more favorably than he was treated, and (3) that there existed
background circumstances sufficient to support the suspicion that the City of Memphis is
that unusual employer that discriminates against the majority. On appeal and especially
at oral argument, Highfill’s counsel argued forcefully against the “background
circumstances” requirement, contending – as some of our opinions have suggested – that
it “imposes a more onerous standard for plaintiffs who are white or male than for their
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non-white or female counterparts." Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796,
801 n. 7 (6th Cir.1994); see also Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 257 (6th
Cir. 2002) ("We share the concern that . . . the potential application of a heightened
pleading standard could be the difference between granting and denying summary
judgment."). In this case, however, the presence or absence of background circumstances
need not be determined, because it is clear that the evidence fully supports the district
court’s rulings with regard to the plaintiff’s qualification for the position and the City’s
treatment of similarly-situated minority fire-department employees (“comparators”).
In determinating whether a plaintiff has presented sufficient evidence of qualification
to support a prima facie case, only the plaintiff's objective qualifications are relevant. See
Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003) (en banc)
(“The prima facie burden of showing that a plaintiff is qualified can therefore be met by
presenting credible evidence that his or her qualifications are at least equivalent to the
minimum objective criteria required for employment in the relevant field.”). The record
does contain several instances of deposition testimony that suggest that Highfill was a
proficient employee. The most objective statement of the required qualifications for
Highfill’s position, however, was Highfill’s employment contract. See Alexander v.
CareSource, 576 F.3d 551, 563-64 (6th Cir. 2009) (“[Defendant]'s job description amounts
to evidence of the minimum job qualifications”). That contract clearly states that
successfully completing the Firefighter II certification within 36 months of the date of his
hire was a requirement of Highfill’s position. Hence, by failing to attain this certification,
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Highfill failed to “demonstrate[] possession of the required general skills.” Wexler, 317 F.3d
at 576.
The brief Highfill filed on appeal appears to concede this point, but he contends,
even so, that African-American employees were given additional time and tutoring support
in order to pass the required exam. But Highfill has presented no evidence that with the
additional time or support allegedly provided to the African-American firefighters, he would
have been able to complete the certification successfully. In fact, the record seems to
suggest the opposite, given the fact that he failed the practical portion of the Firefighter II
certification exam a year after initially passing it.
The district court also found that Highfill did not satisfy another requirement of his
prima facie case of racial discrimination: proof that similarly-situated African-American
employees were treated more favorably than he. In order to be considered “similarly
situated” for purposes of comparison, the employment situation of the comparator must be
similar to that of the plaintiff in all relevant aspects. See Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 352-53 (6th Cir. 1998).
Highfill provides a lengthy list of potential comparators. However, with respect to
the crux of his claim, i.e., that African-American employees were given additional time and
support to complete the Firefighter certification requirement, there were only three relevant
comparators: Torian Thomas, Cassandra Brown, and Shawn Jackson. Although Highfill
argues that African-American employees had disciplinary infractions that are arguably
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more serious than failure to pass the certification exams, his discrimination claim rests on
the assertion that other African-American employees were treated differently than he was
for purposes of the certification exams and, thus, unrelated information about other types
of infractions by fellow employees is not relevant for purposes of comparison. See
Leadbetter, 385 F.3d at 691 (“The similarities between the plaintiff and the [comparator]
must exist in all relevant aspects of their respective employment circumstances.
Differences in job title, responsibilities, experience, and work record can be used to
determine whether two employees are similarly situated.”) (internal citations and quotations
omitted).
The first of the three relevant comparators was Torian Thomas, an African-American
firefighter who was hired subsequent to Highfill’s termination. Thomas failed to pass his
Firefighter I certification exam within the one-year limit, although this result was due
specifically to his inability to pass the Hazardous Materials Awareness portion of the
Firefighter I exam, an element of the exam that was not required at the time of Highfill took
the Firefighter I exam. The record indicates that Thomas was offered tutoring to aid in
mastering the hazardous materials portion of the exam but that such tutoring never
occurred. Thomas subsequently passed the exam and was retained as an employee.
After Thomas failed to attain his Firefighter II certification, however, he was terminated one
month after his three-year probation period lapsed.
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The second of the three, Cassandra Brown, was an African-American firefighter who
was hired in July 2004. Two months later, in September 2004, she was deployed with the
military before completing her Firefighter I certification. When she returned from military
service in September 2006, she was temporarily assigned to work at the Firefighter
Museum until a new recruit class began in March 2007. She subsequently received her
Firefighter I certification in September 2007. She then had until March 2010 to complete
her Firefighter II certification, but neither the record nor the briefs on appeal indicate
whether she was successful.
The third and final comparator was Shawn Jackson, an African-American firefighter
who was given a 90-day extension in which to get his Firefighter I certification. The record
shows, however, that after he received his Firefighter I certification, he then received his
Firefighter II certification with three years of the date of his hire, as stipulated in his
employment contract.
Obviously, none of the comparators discussed above was similarly situated to
Highfill. Although each of them was given additional time to pass the Firefighter I exam,
they were not given extra time or support in passing the Firefighter II certification exam.
Moreover, there is nothing in the record to suggest that Highfill needed extra time to pass
his Firefighter I certification or that he would have been denied extra time to gain his
Firefighter I certification if he had requested it. The only comparator who, like Highfill,
failed to attain his Firefighter II certification within three years of hire, Torian Thomas, was
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likewise terminated for that reason. Further, Thomas was terminated approximately one
month after his three-year period expired, whereas Highfill was not terminated until almost
six months after his three-year probation period had expired, suggesting that Highfill was
treated more leniently than Thomas, not more harshly.
Moreover, Cassandra Brown’s failure to attain her Firefighter I certification within
one year of her initial date of hire was due to intervening military service. Discounting this
time period, the record shows that she attained her Firefighter I certification within one year
of restarting her recruit training. As a result, although she technically was afforded more
time to attain her Firefighter I certification, her intervening military service makes her an
inappropriate comparator. See Arendale v. City of Memphis, 519 F.3d 587, 604 (6th Cir.
2008) (“Superficial similarities between a disciplined employee and his colleagues are not
sufficient to show a prima facie case of discrimination.”).
In summary, none of the department employees who were alleged to be similarly
situated to Highfill for purposes of the firefighter-certification requirement were treated
more favorably than white firefighters. In fact, the record shows that Highfill may have
received special consideration when he was kept on for six months beyond the expiration
of his three-year probation period.
Furthermore, even if Highfill could demonstrate that a similarly-situated employee
had been treated more favorably than he, the record is devoid of proof that any
constitutional deprivation that he suffered was a result of a “a custom or policy within the
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meaning of Monell [v. New York City Department of Social Services, 436 U.S. 658 (1978),]
and subsequent cases.” Jett, 491 at 735-736. In order to be actionable, an alleged
deprivation of rights must have resulted either from “policies which affirmatively
command[ed] that it occur” or from “acquiescence in a longstanding practice or custom
which constitutes the ‘standard operating procedure’ of the local governmental entity.” Id.
at 737 (citations omitted). In other words, the municipality must be the “moving force”
behind the deprivation in order to be liable for violations under § 1981. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985).
In the two instances in which African-American firefighters were given short
extensions in which to attain their Firefighter I certification, the extensions were not granted
pursuant to a policy that the City of Memphis created, nor were they examples of a practice
so pervasive as to constitute a “custom.” Nevertheless, as further evidence of a policy or
custom of reverse discrimination, Highfill points to a few deposed witnesses who personally
believed that African-Americans were treated more favorably than their Caucasian
counterparts, but their testimony was vague and non-specific and clearly lacked sufficient
weight to serve as evidence of pervasive discrimination. See Arendale, 519 F.3d at 600
(“In order to establish that the City's ‘failure to act can be said to amount to an official policy
of inaction,’ the evidence must demonstrate more than just ‘a collection of sloppy, or even
reckless, oversights . . . .’ Rather, the record must show that the City ‘consciously never
acted when confronted with its employees' egregious and obviously unconstitutional
conduct.’”) (internal citations omitted). Highfill has simply not presented evidence sufficient
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to suggest the existence of discrimination against white firefighters, much less establish
that the City of Memphis was the moving force behind a policy of discrimination or that
such discrimination went unaddressed by the City despite its pervasiveness.
CONCLUSION
Because the record fully supports the district court’s decision that the plaintiff did not
establish a prima facie case of discrimination, we AFFIRM the district court’s judgment
granting summary judgment to the defendant.
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