Campbell v. University of Akron

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0770n.06
Filed: October 17, 2006

No. 05-4528

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT CAMPBELL, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
THE UNIVERSITY OF AKRON, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )

Before: ROGERS and GRIFFIN, Circuit Judges; and OBERDORFER, District Judge.*
ROGERS, Circuit Judge. Plaintiff-Appellant Robert Campbell appeals the district court’s

order granting summary judgment to Defendant-Appellee The University of Akron. Campbell, an

employee of the University, brought claims of racial discrimination, retaliation, and racial

harassment against the University for disciplinary actions it took against him since the settlement of

his prior discrimination, retaliation, and harassment lawsuit against the University, and for the

University’s repeated failure to promote him. The district court held that Campbell could not

establish a prima facie case of racial discrimination or retaliation with respect to each of the

disciplinary actions the University took against him, and with respect to all but one of the promotions

he was denied. The district court held, in the alternative, that even if Campbell could establish a

*
The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
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Campbell v. University of Akron

prima facie case with respect to these adverse employment actions, the University had presented

legitimate, non-discriminatory reasons for its actions that were not rebutted by Campbell as pretext.

The district court held that Campbell did establish a prima facie case with respect to one promotion

he was denied where the University had not yet filled the position, but held that Campbell could not

rebut the University’s legitimate, non-discriminatory reason as pretext. Finally, the district court

held that Campbell did not establish a prima facie case of racial harassment.

The district court properly granted summary judgment in favor of the University except with

respect to claims based on three instances of minor discipline. Although Campbell cannot establish

a prima facie case of discrimination or harassment with respect to several of the disciplinary actions

the University took against him, as well as the University’s failure to promote him, he can establish

a prima facie case with respect to three disciplinary actions the University took against him—a

verbal warning for violating a safety-lock policy, and an oral warning and a written warning for

violating a lunch-break policy. The University concedes that these actions were adverse employment

actions under Title VII. The University presents sufficient legitimate, non-discriminatory reasons

for each warning, but Campbell presents enough evidence to rebut the University’s reasons as

pretext. We uphold the remaining determinations of the district court.

Background

Robert Campbell has worked at the University as a Certified Master Heating Ventilation and

Air Conditioning (“HVAC”) Technician in the University’s Physical Facilities Operation Center

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(“PFOC”) since 2002. Prior to 2002, Campbell worked at the University as a Master HVAC

Technician. Campbell is the only African-American in the HVAC shop, a division within the PFOC,

and only one of two Certified Master HVAC Technicians.

On August 28, 2002, Campbell settled a lawsuit with the University, releasing the University

from claims of discrimination and racial harassment and retaliation. Campbell alleges that he

continues to experience racial discrimination, racial harassment, and retaliation.

Disciplinary Actions the University Took Against Campbell

Since the settlement of Campbell’s previous lawsuit, the University has disciplined Campbell

on five separate occasions. Campbell has been disciplined for committing insubordination, twice

violating the PFOC lunch-break policy, violating the PFOC “lockout/tagout” procedures, and

falsifying records.

Insubordination

First, in 2003, the PFOC issued Campbell a verbal warning for insubordination because of

his conduct toward his supervisor, Robert Kraus. During a “coaching session” with Kraus, Campbell

allegedly “refused to discuss the subject” of the coaching session, and “acted in an inappropriate

fashion,” requiring Kraus to end the session prematurely. J.A. 38 (Aff. of Robert Kraus at ¶¶3-6).

The University contends that in 2004, a white employee was also given a verbal warning for

insubordination toward his supervisor.

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Lunch breaks

Second, the PFOC disciplined Campbell for violating its lunch-break policy in 2003 and

2004. The PFOC requires an employee to take his lunch break from 11-11:30 a.m. each day, and

to call his supervisor if he cannot take his break at the scheduled time.

In 2003, the PFOC issued a verbal warning to Campbell for taking his lunch break later than

the scheduled time without receiving permission. Campbell had been working out (i.e., lifting

weights) with James Carstarphen, an African-American Master Electrician within the PFOC, and

James Stewart, an HVAC Master Technician at the University’s Department of Residence Life and

Housing, who was not a PFOC employee at the time. The PFOC also issued a verbal warning to

Carstarphen.

In 2004, Campbell received a written warning for, again, taking his lunch break later than the

scheduled time without first receiving permission. Campbell had been working out with Tim

Howard (a white PFOC employee), Carstarphen, and Stewart. Campbell and Carstarphen both

received written warnings, because for each it was his second offense, whereas Howard received a

verbal warning because this was his first offense. After a grievance hearing, the PFOC dropped

Campbell’s written warning, and notified Campbell that if he took a late lunch again without asking

permission, he would be suspended.

The University points out that “[i]n 2004, a Caucasian employee was disciplined for the same

issue [of violating the lunch-break policy]” and that “other Caucasian employees received discipline

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during the fiscal years of 2000-2003.” J.A. 44 (Aff. of Sandra Smith). Campbell presents evidence

that this policy is rarely enforced, including affidavits and deposition testimony of white employees

stating that they have frequently violated the policy without being punished. J.A. 165 (Aff. of Tim

Howard at ¶¶ 13-14); 168 (Aff. of Carl Myers at 2); 171 (Aff. of James Stewart at ¶¶ 19-22).

Campbell also points to evidence that Kraus has, on multiple occasions, falsely reported to

Joseph Gregor, Director of Physical Facilities at the University, that Campbell returned late from

lunch. J.A. 164 (Aff. of Tim Howard at ¶¶ 10-12). Finally, Campbell presents evidence that he was

being “watched” by Gregor; Sandra Smith, Associate Director, Administration of the PFOC; and

Kraus “because of his prior lawsuit and for voicing his opinions about his treatment.” J.A. 162 (Aff.

of James Carstarphen at 2).

Locks

Third, in December 2004, the PFOC disciplined Campbell for violating the PFOC

“lockout/tagout procedure”—a new policy that was implemented on December 1, 2004. The PFOC

designates certain locks for “lockout/tagout.” Locks that are designated for “lockout/tagout” may

only be used to lock out stored or kinetic energy—in other words, they may only be used on a

machine with stored or kinetic energy that is turned off, to prevent the machine from being turned

back on and possibly causing injury. The PFOC has a written policy to this effect and requires all

employees to receive training.

The PFOC issued a verbal warning to Campbell for improperly using one of these

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Campbell v. University of Akron

“lockout/tagout” locks to secure a ladder. The PFOC rescinded the warning after Campbell agreed

to complete and passed another training course in “lockout/tagout” procedures.

The University contends that in October 2004, a white employee was given a verbal warning

for violating the “lockout/tagout” policy. Campbell claims that after he was disciplined for violating

the policy, he personally observed locks belonging to PFOC superintendents being used on lockers,

in violation of the policy. Kraus stated that although such locks had been used on lockers in the past,

these locks were not used on lockers after the new policy was adopted. Campbell also points to

statements by other PFOC employees that the locks are commonly used improperly and no discipline

comes from it. J.A. 162 (Aff. of James Carstarphen at 2-3); 165 (Aff. of Tim Howard at ¶¶ 17-18);

167 (Aff. of Carl Myers at 1); 172 (Aff. of James Stewart at ¶ 23-25).

Falsifying records

Finally, the PFOC disciplined Campbell for allegedly filling out an inaccurate timecard for

February 1, 2005. On his timecard, Campbell wrote that he was working from 11 a.m. until 1 p.m.

Both the University and Campbell agree that Campbell was at the weight room at some point during

this time, with Campbell claiming that he was in the weight room for only five-to-ten minutes before

he was called away on a job. Campbell also claims that videotape evidence against him was

falsified. Campbell received a ten-day suspension for this action. The University presented evidence

that “[t]here have been Caucasian PFOC employees suspended and recommended for termination

by the PFOC for falsification of records” and that “Caucasian PFOC employees have been suspended

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Campbell v. University of Akron

for 10 days for rules violations.” J.A. 45 (Aff. of Sandra Smith ¶ 16).

Failure to Promote

Campbell alleges that on four separate occasions he was denied a promotion. Campbell did

not apply for the first position, interim Superintendent of the HVAC Shop, but did apply for the other

three positions.

Interim Superintendent

First, in late 2002, Campbell was not promoted to interim Superintendent of the HVAC Shop,

a position that went instead to Kraus, who shortly before had been promoted to a full-time zone

superintendent position. The PFOC did not post the interim Superintendent position because,

according to Gregor, he wanted a full-time superintendent in the position, and there was not enough

time or money to go through the ordinary process of posting the opening and interviewing

candidates. Campbell claims that the failure to post this position “wasn’t fair” but acknowledged

that he did not believe that it was racial discrimination. J.A. 77. Kraus was subsequently given the

Superintendent position on a full-time basis because, according to Gregor, Kraus had recently gone

through the interview process to become a zone superintendent, and thus had the qualifications

necessary for the position.

After Kraus was given the full-time position, Campbell complained to the University’s EEO

Officer. Campbell claims that he then suffered harassment in the form of additional jobs that others

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did not want to do and complaints about the amount of time he would spend on jobs (including an

official investigation).

Superintendent of Maintenance

Second, Campbell applied for a position as Superintendent of Maintenance at the Student

Recreation Center. This position, which was not within the PFOC, was awarded to Richard Grizer,

a white man. Campbell alleged that he was denied this promotion because he is African-American.

The University claims that it hired Grizer over Campbell because Campbell was less qualified, had

less experience (particularly “with buildings trades issues and . . . pool operations”), and was not a

“Certified Pool Operator.” J.A. 62 (Aff. of Charles Kunsman at ¶¶ 6-7). The University also claims

that being a “Certified Pool Operator” was a minimum requirement for the position.1 Campbell

admits that he did not know the qualifications or background of Grizer, but thought that the hiring

was on the basis of race because Grizer was white, and because his treatment during the application

process “wasn’t fair.” J.A. 103 (Dep. of Robert Campbell at 127-28).2

2004 Building Maintenance Zone Superintendent

Third, in December 2004, Campbell interviewed for the position of Building Maintenance

1
Campbell claims that he has six years of experience in pool maintenance. The University
claims that Campbell took the course to become a Certified Pool Operator, but failed that course.
2
For example, Campbell alleges that a University employee told him to take the certification
course, which cost $200, but he was told that someone had been hired on the day he took the
certification test. J.A. 103.

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Zone Superintendent within the PFOC. The committee that interviewed the candidates, which

included Kraus, determined that James Miller, who is white, was the most qualified applicant.3 The

committee concluded that Miller “interviewed very well and possesses the leadership, experience

and knowledge necessary” for the position, and stated that his “dedication, strong work ethic,

supervision experience, knowledge of the campus and public relation skills” made him the first

choice for the position. J.A. 47 (Def.’s Mot. for Summ. J., Ex. B-1). Campbell claims that Miller

was not qualified because he “almost electrocuted himself” and he “used to hang lights up

[incorrectly] and they’d fall on students.” J.A. 99 (Dep. of Robert Campbell at 110-11). Campbell

claims that the hiring of Miller over himself constituted racial discrimination because he was the

most qualified applicant and because Miller is white.

2005 Building Maintenance Zone Superintendent

Finally, in April 2005, Campbell interviewed for the position of Building Maintenance Zone

Superintendent (in a different zone within the PFOC). The interview committee ranked John

Gromofsky, who is white, as the most qualified applicant, concluding that he “interviewed very well

and possesses the leadership, experience and knowledge necessary” for the position, and noted that

he “demonstrates excellent communication skills, is very professional earning the respect of his peers

and University colleagues” and is a “team player.” J.A. 51 (Def.’s Mot. for Summ. J., Ex. B-2). The

3
The committee did not rank Campbell as one of the top three applicants, and noted that
although Campbell “interviewed well,” he needed “to develop his communication and leadership
skills.” J.A. 47-49 (Def.’s Mot. for Summ. J., Ex. B-1).

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Campbell v. University of Akron

committee ranked Campbell as the third most qualified applicant, but noted that the committee

would not consider him if the first-choice applicant refused the position. The committee concluded

that Campbell “interviewed well providing accurate answers to all of the interview questions,” but

that he “was not the most qualified candidate and deficient in his supervisory experience and

leadership skills.” J.A. 51. Gregor acknowledged that Campbell was qualified for the position, but

stated that Campbell was not the most qualified candidate and was no longer under consideration

for the position.

With respect to each of these positions, Campbell claims that he “was and is one of the most

qualified employees” in the PFOC. See Campbell’s Br. at 8. Stewart, Campbell’s former supervisor,

claimed that “Robert Campbell was more qualified to be a supervisor than was Rob Kraus[e].” J.A.

169-70 (Aff. of James Stewart at ¶¶ 2, 7, 13). Finally, Carstarphen stated that when he asked his

supervisor, Mark Coontz, why Campbell had been denied the Zone Supervisor positions, Coontz

stated that “as long as Gregor and that outfit are in charge there would be no brown skinned

supervisors.” J.A. 163 (Aff. of James Carstarphen at 3). Carstarphen also stated that Coontz told

him to “watch out when Robert Campbell” was with him because Campbell was being “watched”

and “target[ed]” by Gregor, Smith, and Kraus. J.A. 162 (Aff. of James Carstarphen at 2).

Procedural History

The district court granted the University’s motion for summary judgment on all

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counts—racial discrimination, retaliation, and racial harassment. The district court held that none

of the disciplinary actions taken against Campbell—for committing insubordination, violating the

lunch-break policy, violating the “lockout/tagout” policy, and falsifying records—constituted racial

discrimination. For each form of discipline, the court held that Campbell failed to establish a prima

facie case of discrimination because he could not show that similarly-situated white employees were

treated more favorably than Campbell. For each form of discipline, the district court also held that,

assuming that Campbell could establish a prima facie case of discrimination, the University provided

a legitimate, non-discriminatory reason for the discipline that Campbell failed to show was pretext.

The district court also held that the University’s failure to promote Campbell, on each of four

occasions, was not racial discrimination. The court first held that Coontz’s comment that under

current management there would not be any “brown skinned supervisors” was not direct evidence

of discrimination. The court then held that Campbell failed to establish a prima facie case of

discrimination with respect to the University’s failure to promote him to the interim Superintendent

position in 2002, the Manager of Maintenance position in 2004, and the Zone Superintendent

position in 2004, because Campbell failed to show that these positions were given to less qualified

non-minorities. The court also held that even if Campbell were able to establish a prima facie case,

the University presented legitimate, non-discriminatory reasons for not promoting Campbell, and

Campbell did not rebut these reasons as pretext. Finally, with respect to the 2005 Zone

Superintendent position, the district court held that although Campbell established a prima facie case

because the position remained unfilled, the University again presented legitimate, non-discriminatory

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reasons for not promoting Campbell that he did not rebut as pretext.

On Campbell’s retaliation claims, the district court first held that Campbell’s alleged direct

evidence of retaliation (Coontz’s comment that management was targeting and watching Campbell)

was insufficient to establish a prima facie case because the evidence was a conclusory statement by

a non-decision-maker. The court then held that Campbell’s indirect evidence was insufficient to

establish a prima facie case of retaliation because Campbell could not show a causal connection

between the adverse employment actions and Campbell’s exercise of protected activity.4

Finally, the district court granted summary judgment to the University on Campbell’s claims

of racial harassment. The district court found that Campbell’s Response to the University’s Motion

for Summary Judgment failed to address this claim, and consequently reviewed only the sufficiency

of the University’s argument. The court found that Campbell’s allegations that he is often forced

to work alone and gets less favorable work assignments were not supported by evidence, and there

was no evidence that these alleged forms of harassment were based on Campbell’s race nor that they

interfered with his work performance.

Discussion

4
The district court also reiterated its rejection of Campbell’s arguments that the University
treated white employees differently, for the same reasons given in its discussion of Campbell’s
discrimination claims.

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This court reviews the district court’s order granting summary judgment de novo. Wright v.

Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). A motion for summary judgment may be

granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c). Summary

judgment is not appropriate “if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Campbell’s

evidence is to be believed, and all “justifiable inferences” are drawn in his favor. See id. at 255.

1. Discrimination

It is unlawful under Title VII for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Such

discrimination in the making and enforcing contracts is prohibited under 42 U.S.C. § 1981. In the

context of employment discrimination, the analysis of claims under § 1981 is identical to that under

Title VII. Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir. 2004).

To succeed in his race discrimination claims, Campbell must navigate the familiar

McDonnell Douglas burden-shifting test. See Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir.

2001). First, Campbell has the burden to establish a prima facie case of racial discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Second, if Campbell makes such

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Campbell v. University of Akron

a prima facie showing of discrimination, the University then has the burden “to articulate some

legitimate, nondiscriminatory reason” for the adverse employment action. See id. at 802;

Braithwaite, 258 F.3d at 493. Finally, if the University successfully articulates a legitimate,

nondiscriminatory reason for the adverse employment action, Campbell has the burden to show that

the University’s reason for the adverse employment action is pretext for what is, in essence, unlawful

racial discrimination. See McDonnell Douglas, 411 U.S. at 804; Braithwaite, 258 F.3d at 493.

Campbell “can demonstrate pretext by showing that the [University’s] proffered reason (1) has no

basis in fact, (2) did not actually motivate the [University’s] challenged conduct, or (3) was

insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th

Cir. 2000).

a. Discipline

Campbell has presented sufficient evidence to establish a prima facie case of discrimination

with respect to the discipline he received for violating the PFOC lunch-break and “lockout/tagout”

policies,5 and is able to rebut the University’s purported legitimate, non-discriminatory reasons for

the discipline as pretext. Campbell is not, however, able to establish a prima facie case of

5
For reasons that are not entirely clear, the University does not contest that the disciplinary
actions the PFOC took against Campbell were “adverse employment actions” actionable under Title
VII. Therefore, we do not decide that issue, and assume for purposes of this opinion that these
disciplinary actions do constitute “adverse employment actions.” Compare Haynes v. Level 3
Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006) (“A written warning may be an adverse
employment action only if it effects a significant change in the plaintiff’s employment status.”);
Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005) (holding that written warnings were not
adverse employment actions in that case for either discrimination or retaliation purposes).

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discrimination with respect to the discipline he received for committing insubordination and

falsifying records. Because this is a disparate-treatment case, Campbell may establish a prima facie

case of discrimination by showing “(1) that he was a member of a protected class and (2) that for the

same or similar conduct he was treated differently than similarly-situated non-minority employees.”

Mitchell v. Toledo Hospital, 964 F.2d 577, 582-83 (6th Cir. 1992).

i. Warning for Insubordination

The district court correctly held that Campbell did not establish a prima facie case of

discrimination with respect to his discipline for insubordination because he failed to demonstrate that

a similarly-situated white employee was treated less favorably for a similar act of insubordination.

To establish a prima facie case of discrimination, Campbell must show that he was treated differently

than similarly-situated white employees. See id. Campbell has not referred to any evidence in the

record that would suggest that he was treated differently than similarly-situated white employees.

In fact, the University provided evidence that a white employee was given a verbal warning for

insubordination in 2004.

The district court also correctly concluded that, assuming Campbell could make a prima facie

showing, the University had provided a legitimate non-discriminatory reason for the discipline in the

form of evidence that Campbell had been insubordinate. The University presented evidence that

Campbell was insubordinate by refusing to participate in a coaching session with Kraus and by

calling Kraus a “racist” and a “baby face boy.” See J.A. 41.

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Campbell has not presented evidence sufficient to rebut the University’s legitimate, non-

discriminatory reason as pretext. Campbell can “demonstrate pretext by showing that the

[University’s] proffered reason . . . has no basis in fact.” Dews, 231 F.3d at 1021. Campbell argues

only that he was not insubordinate, and provides his own testimony as evidence. However, this court

has held that “the plaintiff’s denial of the defendant’s articulated legitimate reason without producing

substantiation for the denial is insufficient for a race discrimination claim to withstand a motion for

summary judgment.” Mitchell, 964 F.2d at 585. Here, Campbell has failed to present any evidence

to show that the PFOC disciplined him for a reason other than his actual insubordination. He simply

denies that he was insubordinate; that is not sufficient to demonstrate pretext.

In addition, this court has held in an unpublished decision that, in the context of discipline

for violating employer rules, “an employer may successfully rebut any prima facie case of disparate

treatment by showing that it honestly believed that the employee committed the violation.” Harris

v. Elec. Data Sys. Corp., No. 94-1888, 1996 WL 99311, at *6 (6th Cir. Mar. 6, 1996); see also

Braithwaite, 258 F.3d at 493-94. Campbell admits in his deposition testimony that he called Kraus

“home boy” and said that Kraus was acting like a racist, that he raised his voice, and that the purpose

of the meeting never was accomplished because he began an off-topic discussion of Kraus’s abilities

as a PFOC employee. Given these admissions, the University was justified in concluding that

Campbell was being insubordinate. Regardless, Campbell does not challenge the fact that the

University honestly believed that Campbell was being insubordinate.

ii. Warnings for Violating Lunch-break Policy

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Campbell has made a prima facie showing that the discipline that he received for violating

the PFOC lunch-break policy, which required employees to notify their supervisors before taking a

lunch break outside of their allotted time period, was racial discrimination. The PFOC twice

disciplined Campbell for violating the lunch break policy: in 2003 (verbal warning) and in 2004

(written warning). Both times, Campbell took his lunch break outside his scheduled time without

first receiving permission from a supervisor.

Assuming the employment action was sufficiently adverse, see supra note 5, Campbell has

established a prima facie case of discrimination because he has presented evidence that white

employees were treated differently for similar conduct. See Mitchell, 964 F.2d at 582-83. Campbell

presented affidavits of other PFOC employees who claimed that they have violated the lunch break

policy without being disciplined and that the policy is commonly violated without the offenders

being punished. See J.A. 165 (Aff. of Tim Howard at ¶¶ 13-14) (“It was and still is common practice

for PFOC employees to return late from lunch. The only people I know who received any discipline

for returning late from lunch are people like myself who were seen with Robert Campbell.”); 168

(Aff. of Carl Myers at 2) (“I have personally started lunch late and gone over and never been

disciplined.”); 171 (Aff. of James Stewart at ¶¶ 19-22) (“I know that it is common for workers to

return late from their lunch break when they have left late for their lunch break. I was never

disciplined for returning late from lunch. I have never known any white employee who was

disciplined for returning late from lunch.”). The district court rejected this evidence because it

determined that Campbell failed to establish that the PFOC knew that these employees had violated

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the policy, and thus, these employees were not similarly-situated. J.A. 232-34.

Campbell’s evidence is sufficient to permit the inference that the PFOC did indeed have

knowledge of violations of the lunch break policy. On a motion for summary judgment, a court must

believe the plaintiff’s evidence and all “justifiable inferences” are drawn in his favor. See Anderson,

477 U.S. at 255. If a juror were to believe Howard, Myers, and Stewart, and determine that the

lunch-break policy is commonly violated, the juror could easily make the small inferential step that

the PFOC must have known that the policy was being violated.6 See EEOC v. Minneapolis Elec.

Steel Casting Co., 552 F. Supp. 957, 963 (D. Minn. 1982) (finding widespread rule violations

sufficient to establish that employer knew of violations). Such an inference becomes even stronger

when combined with the fact that Kraus admits to having violated the lunch-break policy on multiple

occasions when he was a technician. J.A. 205.

The University, though, argues that the fact that Howard, who is white, was disciplined for

violating the lunch break policy is evidence that similarly situated employees were treated equally.7

However, Howard claims that the only time he was disciplined for violating the lunch break policy

6
The University presents evidence that a white employee was disciplined for violating the
lunch policy in 2004. This appears to refer to Howard, who was with Campbell when Campbell
violated the policy. The University also presents evidence that other white employees were punished
from 2000-03, but does not provide numbers or dates. In light of the attestations of Howard, Myers,
and Stewart, a reasonable jury could still believe that Campbell was being treated differently than
white employees.
7
The fact that Howard received a verbal warning whereas Campbell received a written
warning is immaterial because this was Howard’s first offense and Campbell’s second. Campbell
also received only a verbal warning after his first offense.

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was when he was with Campbell. Campbell also presents evidence showing that Gregor, Kraus, and

Smith were targeting him, and that Kraus was spying on him when he would work out during his

lunch break. If a juror believed this evidence, he or she could conclude that Howard was only

punished because of his association with Campbell, or that he was only punished to avoid what

would have been an otherwise unavoidable appearance of discrimination.

Campbell has also demonstrated that the University’s purported legitimate, non-

discriminatory reason for Campbell’s discipline—Campbell’s violation of the lunch-break

policy—was pretext. To demonstrate pretext, Campbell may demonstrate that the University’s

reason “was insufficient to warrant [the University’s] challenged conduct.” Dews, 231 F.3d at 1021.

Campbell has done this by providing evidence that could show that the PFOC knew about

widespread violations of the rule, but only chose to punish Campbell. See Perry v. McGinnis, 209

F.3d 597, 602 (6th Cir. 2000) (noting that evidence of discipline of black employee for rule

violations for which other employees were not disciplined supports argument that violation of rule

was pretext for discipline); cf. McDonnell Douglas, 411 U.S. at 804 (stating that failure to fire white

employees who engaged in same act that was employer’s purported reason for firing black employee

could be evidence of pretext). Therefore, Campbell has met his burden of establishing pretext.

iii. Warning for Violating “Lockout/tagout” Procedures

Campbell also established a prima facie case of discrimination with respect to the verbal

warning he received for violating the PFOC “lockout/tagout” policy by using a “lockout/tagout” lock

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to secure a ladder because he presented evidence that he is the only PFOC employee to have been

disciplined for violating the policy and that other employees frequently violate the policy without

being disciplined. See Mitchell, 964 F.2d at 582-83. Carstarphen claimed that “lockout/tagout”

locks “are used for many purposes including locking up equipment, ladders, generators, tools, tool

boxes, and lockers.” J.A. 162. Stewart claimed that he had used “lockout/tagout” locks improperly

in the past without being disciplined, and that the locks are “routinely and customarily” used

improperly, yet the only employee he knows of who was punished for it is Campbell. J.A. 172. In

addition, Campbell claims to have personally observed the improper use of “lockout/tagout” locks

on lockers after he was disciplined.

The University argues that evidence that white employees had violated the policy without

punishment is insufficient to establish a prima facie case because these employees were not

similarly-situated in that (1) there was no evidence that these employees were ever caught and not

disciplined; and (2) Campbell did not show that these employees violated the new policy (instituted

in December 2004) instead of the old policy. Although the question is close, the record shows

sufficient evidence to get past summary judgment. First, a reasonable juror could infer from

evidence that employees “routinely and customarily” used “lockout/tagout” locks improperly and

from evidence that Campbell personally observed these locks being used in the open on lockers, that

management was aware that other employees were violating the policy. Second, a reasonable juror

could infer from Campbell’s evidence that white employees continued to use “lockout/tagout” locks

improperly under the new policy. Campbell claims to have personally observed improper use of the

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No. 05-4528
Campbell v. University of Akron

locks after he was punished under the new policy. J.A. 87. Also, the claims of widespread misuse

of locks by Stewart and Carstarphen, although not explicitly stating a time frame, permit an inference

that the misuse of the locks continued after the new policy was adopted in December 2004. For

example, Stewart stated in an affidavit dated July 29, 2005, that these locks “were and are routinely

and customarily” misused in the PFOC. Therefore, Campbell’s evidence is sufficient to establish

a prima facie case of racial discrimination.

Campbell also successfully rebuts the University’s purported legitimate, non-discriminatory

reason for the discipline—violation of the “lockout/tagout” policy—as pretext.8 Campbell may

demonstrate pretext by showing that the University’s proffered reason “was insufficient to warrant

[the University’s] challenged conduct.” Dews, 231 F.3d at 1021. Campbell’s evidence that

similarly-situated white employees were not disciplined for violating the “lockout/tagout” policy is

sufficient to permit a finding of pretext. See Perry, 209 F.3d at 602.

iv. Suspension for Falsifying Records

The district court correctly held that Campbell’s ten-day suspension in February 2005 does

not establish a prima facie case of racial discrimination. To establish a prima facie case of

discrimination, Campbell must show that he was treated differently than similarly-situated white

8
The University argues that evidence that a white employee was punished in 2004 shows that
similarly situated employees were treated similarly. However, in light of Campbell’s evidence that
the “lockout/tagout” policy was routinely violated by white employees who were not disciplined,
there is still a genuine issue of material fact for the jury.

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No. 05-4528
Campbell v. University of Akron

employees. See Mitchell, 964 F.2d at 582-83. The only evidence Campbell refers this court to is his

claim that the videotape which served as evidence in Campbell’s disciplinary hearing was altered

or falsified. See J.A. 92-93. Campbell has not alleged that white employees who were caught

falsifying records were not similarly disciplined. Therefore, Campbell failed to establish a prima

facie case of discrimination.

The district court also correctly concluded that, even had Campbell established a prima facie

case of discrimination, the University presented a legitimate, non-discriminatory reason for the

discipline that Campbell has not shown to be pretext. The University presented evidence that white

employees, in fact, have been suspended and recommended for termination for falsifying records.

J.A. 45. Campbell’s mere allegation that the evidence against him was altered is insufficient to show

pretext. Mitchell, 964 F.2d at 585 (holding that “the plaintiff’s denial of the defendant’s articulated

legitimate reason without producing substantiation for the denial is insufficient for a race

discrimination claim to withstand a motion for summary judgment”).

b. Failure to Promote

Campbell fails to establish racial discrimination with respect to the University’s failure to

promote him. Campbell attempts to use both direct and indirect evidence to establish discrimination.

See Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003).

Campbell’s supposed direct evidence of discrimination with respect to the University’s

failure to promote him is insufficient. “[D]irect evidence is that evidence which, if believed, requires

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No. 05-4528
Campbell v. University of Akron

the conclusion that unlawful discrimination was at least a motivating factor in the employer’s

actions.” Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 926 (6th Cir.

1999). If Campbell can establish direct evidence of discrimination, the University then has the

burden to show that it would have taken the same adverse employment action without the motivation

of discrimination. See id. Here, Campbell’s direct evidence of discrimination is that Carstarphen

attested that his supervisor, Coontz, said that “as long as Gregor and that outfit are in charge there

would be no brown skinned supervisors.” J.A. 162.

The district court held that this was not direct evidence of discrimination because the record

contradicts Coontz’s statement and because Coontz was not a decision-maker with respect to the

promotions Campbell did not receive. Coontz’s statement is not direct evidence of discrimination

because it is presented as simply Coontz’s opinion of the motives behind the PFOC’s management

decisions. The record does not suggest that Coontz based this statement on any objective evidence

such as statements made by Gregor or other management officials within the PFOC. This court has

held that “[m]ere personal beliefs, conjecture and speculation are insufficient to support an inference

of” discrimination. Chappell v. GTE Products Corp., 803 F.2d 261, 268 (6th Cir. 1986) (age

discrimination); Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 724 (6th Cir. 2006)

(racial discrimination). Therefore, Coontz’s conclusory comment is not sufficient direct evidence

of discrimination.9

9
For the same reason, we also reject Campbell’s argument that Coontz’s comment is indirect
evidence of discrimination.

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No. 05-4528
Campbell v. University of Akron

Campbell also presented indirect evidence of discrimination with respect to the University’s

failure to promote him on four separate occasions. Campbell can establish a prima facie case if he

shows that “(1) [he] is a member of a protected class; (2) [he] applied for and was qualified for a

promotion; (3) [he] was considered for and was denied the promotion; and (4) an individual of

similar qualifications who was not a member of the protected class received the job at the time

[Campbell’s] request for the promotion was denied.” White v. Columbus Metro. Housing Auth., 429

F.3d 232, 240 (6th Cir. 2005).

i. Interim Superintendent

First, Campbell cannot establish a prima facie case of discrimination with respect to the

University’s failure to promote him to the interim position of Zone Superintendent in 2002. To

establish a prima facie case, Campbell must show that his qualifications for the position were similar

to Kraus’s. Campbell has not alleged that he had similar qualifications, only that Kraus was not as

qualified as he was, according to his own opinion, and the opinion of Stewart (the former supervisor

of both Campbell and Kraus). Furthermore, the evidence Campbell presents is not the objective

evidence of qualifications required for establishing a prima facie case. See Wexler, 317 F.3d at 575

(“At the prima facie stage, a court should focus on a plaintiff’s objective qualifications to determine

whether he or she is qualified for the relevant job.”).

The district court also correctly held that, even if Campbell were able to establish a prima

facie case, the University’s explanation that Kraus was promoted because he was already a

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No. 05-4528
Campbell v. University of Akron

supervisor was not shown by Campbell to be pretext. Gregor testified at his deposition that the

reason the position was not posted was because Kraus volunteered, and Kraus was hired because

there was a need for someone to fill that position quickly. Campbell has not provided any evidence

to suggest that this reason was pretext.

ii. Superintendent of Maintenance

Second, the district court correctly held that Campbell failed to satisfy his burden of

establishing a prima facie case of racial discrimination with respect to the University’s failure to

promote him to Manager of Maintenance for the Department of Student Recreation and Wellness

Services in 2004. Campbell cannot show that he had qualifications similar to the person who was

given the job, Richard Grizer. One of the minimum requirements for the job was that the applicant

be a “Certified Pool Operator or equivalent.” J.A. 61, 64. Campbell was not a “Certified Pool

Operator,” and, in fact, failed the test to become one.10 Campbell has not alleged that Grizer is not

a “Certified Pool Operator” or is otherwise unqualified for the position.

Even if Campbell were able to establish a prima facie case, he has not shown that the

University’s reason for promoting Grizer instead of him—the fact that Campbell was not a “Certified

Pool Operator”—was pretext. In his deposition testimony, Campbell, when asked why he thought

10
Campbell argues that he has similar qualifications because he has six years of experience
in pool maintenance. But the fact that Campbell did not pass the certification exam suggests that his
experience was not the equivalent of actual certification. Regardless, because Campbell cannot rebut
as pretext the University’s legitimate non-discriminatory reason for hiring Grizer, he still cannot
prevail on this claim.

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No. 05-4528
Campbell v. University of Akron

the University’s failure to promote him to this position was racial discrimination, only answered that

it was because Grizer is white and that he was led to believe that he could take the certification

course and be considered for the job. This evidence is insufficient to show pretext because it is not

evidence that the employer’s legitimate, nondiscriminatory reason for hiring Grizer “(1) has no basis

in fact, (2) did not actually motivate the [University’s] challenged conduct, or (3) was insufficient

to warrant the challenged conduct.” See Dews, 231 F.3d at 1021.

iii. 2004 Building Maintenance Zone Superintendent

Third, the district court correctly held that Campbell failed to establish a prima facie case of

discrimination with respect to his lack of promotion to the position of Building Maintenance Zone

Superintendent in December 2004. The court held that Campbell did not establish a prima facie case

because he failed to present evidence showing how he was more qualified than James Miller, the

white man who got the job.

Campbell does not point to any evidence in the record showing that he and Miller had similar

qualifications for the Superintendent position. Campbell only makes the conclusory statement that

he was the most qualified applicant and states that Miller once “almost electrocuted himself” and

“used to hang lights up [incorrectly] and they’d fall on students.” J.A. 99. First, Campbell’s

statement that he was the most qualified applicant cannot establish a prima facie case of

discrimination because personal beliefs are insufficient to support an inference of discrimination.

Chappell, 803 F.2d at 268. Second, Campbell’s deposition testimony that Miller made mistakes in

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No. 05-4528
Campbell v. University of Akron

the past is also insufficient because Campbell does not show how those mistakes made during the

course of Miller’s employment as a technician relate to his qualifications as a supervisor, and

Campbell’s testimony does not concern the types of objective qualifications this court examines to

determine whether a prima facie case has been established. See Wexler, 317 F.3d at 575-76 (stating

that with regard to consideration of the plaintiff’s qualifications, “the inquiry should focus on criteria

such as the plaintiff’s education, experience in the relevant industry, and demonstrated possession

of the required general skills”).

Even if Campbell were able to establish a prima facie case of discrimination, the district court

correctly held that Campbell could not rebut as pretext the University’s legitimate, non-

discriminatory reasons for choosing Miller over Campbell. The University offered as evidence a

memorandum summarizing the selection committee’s assessment of each candidate for the position

as well as the committee’s recommendations. The committee determined that Miller “interviewed

very well and possesses the leadership, experience and knowledge necessary” for the position, and

stated that his “dedication, strong work ethic, supervision experience, knowledge of the campus and

public relation skills” made him the first choice for the position. The committee also determined that

although Campbell “interviewed well,” he “needs to develop his communication and leadership

skills.” Campbell has failed to present additional evidence showing that these reasons were

pretextual.

iv. 2005 Building Maintenance Zone Superintendent

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No. 05-4528
Campbell v. University of Akron

Fourth, even though Campbell established a prima facie case of discrimination with respect

to the University’s failure to promote him to Superintendent in 2005 because the position remains

unfilled,11 see McDonnell Douglas, 411 U.S. at 802; White, 429 F.3d at 240 n.3, the district court

correctly concluded that the University presented a legitimate, non-discriminatory reason for failing

to promote Campbell, which was not rebutted by a showing that the reason was pretextual. The

University again presented a memorandum summarizing the selection committee’s assessment of

each candidate for the position and the committee’s recommendations. The committee concluded

that John Gromofsky, a white male, was the most qualified candidate because he “interviewed very

well and possesses the leadership, experience and knowledge necessary” for the position, and he

“demonstrates excellent communication skills, is very professional earning the respect of his peers

and University colleagues” and is a “team player.” The committee ranked Campbell as the third

most qualified applicant, but noted that it would not consider him if the first-choice applicant refused

the position. The committee concluded that Campbell “interviewed well providing accurate answers

to all of the interview questions,” but that he “was not the most qualified candidate and deficient in

his supervisory experience and leadership skills.” Campbell has failed to present any evidence

suggesting that these reasons were pretextual, other than the conclusory statement that “[t]he fact that

positions are left unfilled, rather than filled by a qualified black man, more than raised the specter

11
The selection committee made its recommendations to Smith on April 22, 2005. Gregor
acknowledged that the position had not yet been filled during his deposition testimony taken May
13, 2005, but stated that John Gromofsky, the committee’s first choice, was still under consideration
for the position. It is not clear from the record whether this position still remained unfilled at the
time of the district court’s decision, or remains unfilled today.

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No. 05-4528
Campbell v. University of Akron

of pretext.” Campbell’s Br. at 23.

c. Unfavorable Job Assignments

We decline to address Campbell’s argument that the fact that he was assigned to “dirtier”

jobs and forced to work alone more frequently than other employees constituted discrimination,

because Campbell failed to make this argument until his Reply Brief to this court. This court has

held that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005).

Nowhere in Campbell’s initial Brief or his Response to the University’s Motion for Summary

Judgment does Campbell argue that the University discriminated against him by giving him less

favorable assignment or requiring him to work alone more often than other employees. Campbell’s

mention of this argument in his Reply Brief is insufficient to avoid waiving the argument.12 See, e.g.,

American Trim, L.L.C. v. Oracle Corp., 383 F.3d 462, 477 (6th Cir. 2004).

2. Retaliation

Campbell has established a prima facie case of retaliation with respect to the discipline he

received for violating the PFOC lunch-break and “lockout/tagout” policies. Although the University

presents legitimate, non-discriminatory reasons for Campbell’s discipline, Campbell successfully

rebuts these reasons as pretext.

12
For the same reasons, any argument that Campbell’s receipt of unfavorable job assignments
constituted retaliation is also waived.

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No. 05-4528
Campbell v. University of Akron

To establish a prima facie case of retaliation under Title VII and § 1981, Campbell must

show that “(1) he engaged in activity protected by Title VII; (2) this exercise of protected rights was

known to [the University]; (3) [the University] thereafter took adverse employment action against

[Campbell]; and (4) there was a causal connection between the protected activity and the adverse

employment action.”13 Ford v. General Motors Corp., 305 F.3d 545, 552-53 (6th Cir. 2002).

The University concedes the first three elements of the prima facie case.14 University’s Br.

at 32. Therefore, the only element in dispute is whether there was a causal connection between the

protected activity (Campbell’s filing of complaints and previous lawsuit against the University) and

the adverse employment action (the University’s discipline of and failure to promote Campbell). To

establish a causal connection, Campbell must show either (1) temporal proximity between his

exercise of protected rights and adverse employment actions, alone; or (2) temporal proximity in

addition to disparate treatment.

13
Campbell also claims that Coontz’s comments that no brown-skinned employee would be
promoted while Gregor was in charge, and that Gregor and other PFOC management were targeting
Campbell, are direct evidence of retaliation. We reject Campbell’s argument for the same reasons
stated above with respect to Campbell’s claims of racial discrimination. Coontz’s comments reflect
only conclusory statements of opinion and are not admissible evidence to show discrimination or
retaliation.
14
Again, the University concedes the adverse action element of the retaliation claim with
respect to verbal reprimands and warnings. In Burlington Northern & Santa Fe Railway Co. v.
White, – U.S. –, 126 S. Ct. 2405, 2414-16 (2006), the Supreme Court recognized that the standard
for retaliation is not as high as the standard for discrimination under Title VII. The Court held that,
to prove retaliation, “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, ‘which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’” Id. at 2415 (quoting
Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).

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No. 05-4528
Campbell v. University of Akron

First, Campbell possibly may establish a prima facie case with evidence of only temporal

proximity. However, this court has not before held that a difference in time of six months or more

is short enough—without more evidence—to permit an inference of retaliation. See Nguyen v. City

of Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000) (“[P]revious cases that have permitted a prima

facie case to be made based on the proximity of time have all been short periods of time, usually less

than six months.”). The only action Campbell alleges as retaliation that occurred within six months

of his settlement on August 28, 2002, or his EEOC complaint on October 10, 2003, was the

discipline for his lunch break in Fall 2003, which is discussed below. Campbell does not appear to

allege that the University’s failure to promote him to interim Supervisor in late 2002 was in

retaliation for his lawsuit, which is consistent with the fact that Campbell had not previously

expressed interest in a promotion (i.e., the University could not have retaliated against Campbell by

denying him a promotion it did not know he wanted).

Second, Campbell can establish a prima facie case of retaliation with respect to the

University’s discipline of him for violating the lunch-break and “lockout/tagout” policies by

evidence of close temporal proximity combined with evidence of disparate treatment. See Moore

v. KUKA Welding Systems & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999) (holding that causal

connection “may be established by demonstrating that the adverse action was taken shortly after

plaintiff filed the complaint and by showing that he was treated differently from other employees”).

The only adverse employment actions for which Campbell has made a prima facie showing

that he was treated differently from other employees were the discipline for his violation of the

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No. 05-4528
Campbell v. University of Akron

“lockout/tagout” and lunch-break policies.15 Campbell’s discipline for violating the lunch-break

policy came in Fall 2003 and Fall 2004. His discipline for violating the lockout/tagout policy came

in December 2004. At most, the discipline for all three violations of PFOC policy came just over

one year after an adverse employment action. This temporal nexus, when combined with evidence

of disparate treatment, appears sufficient to permit a reasonable juror to infer that the discipline was

retaliatory. See, e.g., Little v. BP Exploration & Oil Co., 265 F.3d 357, 365 (6th Cir. 2001) (holding

as sufficient a time difference of less than a year between one EEOC complaint and plaintiff’s

suspension and termination, and three months between a second EEOC complaint and plaintiff’s

suspension and termination, combined with evidence of disparate treatment and evidence that the

employer encouraged employees to make false allegations against plaintiff); Harrison v. Metro Gov’t

of Nashville, 80 F.3d 1107, 1119 (6th Cir. 1996) (holding as sufficient a time difference of, at most,

fifteen months, combined with evidence that employees who testified at plaintiff’s EEOC hearing

feared retaliation for doing so and comments by supervisor that “suggested he would not hesitate to

run employees out of his department”).

Once Campbell establishes a prima facie case of retaliation, the same burden-shifting

McDonnell Douglas test applied above with respect to discrimination controls. See Singfield v.

Akron Metro. Housing Authority, 389 F.3d 555, 563-64 (6th Cir. 2004). Because the test and

15
Campbell also presents evidence that he was being spied on by Kraus and Kraus’s wife.
See J.A. 164 (Aff. of Tim Howard at ¶ 9) (“Kraus[e] had to go out of his way to watch Campbell.
If Kraus[e] was not available, Kraus[e]’s wife, April Kraus[e], who works at the [place where
Campbell works out during lunch], monitored us from [the] security camera system and kept
Kraus[e] informed.”). This evidence, if anything, makes the prima facie case of retaliation stronger.

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No. 05-4528
Campbell v. University of Akron

analysis remain the same, the outcome regarding each alleged form of retaliation is the same as the

outcome regarding each alleged form of discrimination. Therefore, Campbell can rebut as pretext

the University’s purported legitimate reasons for disciplining Campbell for violation of the

“lockout/tagout” and lunch-break policies, but not for his insubordination and falsification of his

timecard, nor for the University’s failure to promote him.

3. Harassment

Campbell waived his right to appeal the district court’s grant of summary judgment to the

University on Campbell’s claims of racial harassment.16 Again, this court has held that “issues

adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed waived.” Dillery, 398 F.3d at 569. Although the word “harassment” is sprinkled throughout

Campbell’s Brief to this court, Campbell’s Brief does not have a separate section devoted to racial

harassment, does not state the legal standard for prevailing on a claim of racial harassment (even

though it does for the discrimination and retaliation claims), and does not refer to a single case that

illustrates why his alleged treatment by the University constitutes racial harassment. The fact that

Campbell’s Brief is devoid of analysis of racial harassment even after the district court concluded

that Campbell had not responded to the University’s summary judgment motion makes the

16
The district court also determined that Campbell failed to address this claim in his Response
to the University’s Motion for Summary Judgment. J.A. 248.

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No. 05-4528
Campbell v. University of Akron

conclusion that Campbell has abandoned his racial harassment claim even stronger.17 Therefore,

we hold that Campbell waived his right to appeal that part of the district court’s order granting

summary judgment to the University on his racial harassment claims.

Conclusion

Finally, we note that our disposition of this case reflects only the smallest of disagreements

with the district court below: we conclude that evidence of widespread rules violations permits a

rational juror to infer that an employer knew about the rules violations. We do not make that

inference here, but decide only that it is for a jury to decide. For the reasons stated above, we

REVERSE, in part, the judgment of the district court and REMAND this matter for further

proceedings consistent with this opinion.

17
Also, in his Reply Brief to this court, Campbell fails to respond to the University’s analysis
of Campbell’s racial harassment claim, which consists of, in full: “Campbell abandoned this
argument below and does not appear to have revived it here.” See University’s Br. at 41.

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