Nguyen v. City of Cleveland

• Citation: 229 F.3d 559
• Decision Date: 04 May 2000
• Docket Number: No. 99-3200,99-3200
• Parties: (6th Cir. 2000) Pram Nguyen, Plaintiff-Appellant, v. City of Cleveland, Defendant-Appellee. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 559

229 F.3d 559 (6th Cir. 2000)

Pram Nguyen, Plaintiff-Appellant, v. City of Cleveland, Defendant-Appellee.

No. 99-3200

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 4, 2000

Decided and Filed: October 11, 2000

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 97-00651--Patricia A. Gaughan, District Judge. [Copyrighted Material Omitted] Edward G. Kramer, KRAMER & ASSOCIATES, Cleveland, Ohio, for Appellant.

Claudette Walcott, CITY OF CLEVELAND LAW DEPARTMENT, OFFICE OF DIRECTOR OF LAW, Cleveland, Ohio, for Appellee.

Before: BATCHELDER, MOORE, and BEEZER^*, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Plaintiff-Appellant, Pram Nguyen, brought three separate lawsuits against the City of Cleveland alleging that the City's denial of his promotion bids violated Title VII because (1) the City discriminated against him on the basis of his national origin, and (2) the City retaliated against him for filing a grievance and EEOC complaints. The three lawsuits were consolidated into one, and the City moved for summary judgment on all of the failure to promote claims as well as the retaliation claim. The district court granted the City's motion with respect to Nguyen's retaliation claim and some of his claims for failure to promote. The remaining claims were tried to a jury, which found in favor of the City on each of them. Mr. Nguyen's timely appeal is limited to the district court's grant of summary judgment in favor of the City of Cleveland. Thus, the only claims presented on appeal are Mr. Nguyen's allegations of discrimination based upon the City's failure to promote him to the position of Deputy Commissioner for the Division of the Environment or the position of Chief of Enforcement, and the City's failure to promote him in retaliation for his engaging in a protected activity.

I. Background

Pram Nguyen is Vietnamese. He earned his B.S. in Chemical Engineering from Ohio University in 1990. After graduation, he went to work for the Allegheny County (Pennsylvania) Health Department as "Project Leader/Air Pollution Specialist." He worked in Pennsylvania until he was hired by the City of Cleveland as an Air Pollution Control Engineer ("APC I") on August 9, 1993, and he was subsequently promoted to the position of APC II on November 7, 1994.

Although Nguyen was promoted to APC II, he was dissatisfied with the pay increase he received with the promotion. Toward the end of 1995, he filed a grievance claiming the City violated the union contract by failing to award him the proper pay with his promotion. The grievance was denied. Nguyen then filed an EEOC charge and a subsequent federal lawsuit on the alleged pay disparity. That action was dismissed for failure to state a claim.

During the 1995-1996 time frame, Nguyen bid on several promotional opportunities within his department at the City of Cleveland. He was not awarded any of these promotions. He filed EEOC claims and subsequent federal lawsuits with respect to each of these positions claiming discrimination because he is Vietnamese and because the City retaliated against him for filing the grievance and various EEOC complaints.

II. Applicable Law

This court reviews de novo a district court's grant of summary judgment. See Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 409 (6th Cir. 1999). Summary judgment is proper 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. P. 56(c). When reviewing a motion for summary judgment, we must view all of the evidence and any inferences that may be drawn from that evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)).

Generally speaking, a plaintiff in a race discrimination action "has the burden of proving by a preponderance of the evidence a prima facie case." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). After proving the existence of a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-3 (1973). If the defendant meets this burden, the plaintiff must then show that the defendant's articulated reason is a pretext for discrimination. Id.

A. Discrimination by failing to promote

In order to set forth a claim of discrimination, a plaintiff must show that he has suffered an adverse employment action; that is, he must establish that he has suffered a "materially adverse" change in the terms or conditions of employment because of the employer's action. See Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir. 1996). For the purposes of Title VII, a failure to promote is an adverse employment action. See Hale v. Cuyahoga County Welfare Dep't, 891 F.2d 604,606 (6th Cir. 1989).

In order to establish a prima facie case of racial discrimination based upon a failure to promote, the plaintiff must demonstrate 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 denied the promotion; and (4) other employees of similar qualifications who were not members of the protected class received promotions at the time the plaintiff's request for promotion was denied. See Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1095 (6th Cir. 1996); Brown v. Tennessee, 693 F.2d 600,603 (6th Cir. 1982). Alternatively, a plaintiff can establish a prima facie case by presenting direct evidence of discriminatory intent. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion). For example, a facially discriminatory employment policy or a corporate decision maker's express statement of a desire to remove employees in the protected group is direct evidence of discriminatory intent. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 379-80 (6th Cir. 1993). In direct evidence cases, once a plaintiff shows that the prohibited classification played a motivating part in the employment decision, the burden of both production and persuasion shifts to the employer to prove that it would have terminated the employee even if it had not been motivated by impermissible discrimination. Price Waterhouse, 490 U.S. at 244-45; Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994).

B. Retaliation

In order to establish a prima facie case of retaliation, a plaintiff must establish that: (1) he engaged in activity protected by Title VII; (2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. See Harrison v. Metropolitan Gov't, 80 F.3d 1107, 1118 (6th Cir. 1996) (citing Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987)).

To establish the causal connection required in the fourth prong, a plaintiff must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997); Jackson v. RKO Bottlers, 743 F.2d 370, 377 (6th Cir. 1984). Although no one factor is dispositive in establishing a causal connection, evidence that defendant treated the plaintiff differently from similarly situated employees or that the adverse action was taken shortly after the plaintiff's exercise of protected rights is relevant to causation. See Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir. 1987). The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met. See Avery, 104 F.3d at 861.

III. Analysis

A. The Position of Deputy Commissioner

The City of Cleveland originally posted the Deputy Commissioner position in the fall of 1994. Eric Myles (a black man) was selected to fill the position. It is undisputed that Nguyen did not apply for the position when it was posted. Because the City had suffered some unexpected budget cuts, funding for the position was not available in 1994. When funds were actually acquired for the position, in 1995, the department again offered the position to Mr. Myles. Myles accepted and assumed the position in October, 1995.

The district court held that Nguyen failed to establish a prima facie discrimination case with respect to the Deputy Commissioner position because, although he met three of the four prongs required, he did not demonstrate that he had applied for the position or that his failure to apply should be excused under Wanger v. G.A. Gray Co. 872 F.2d 142 (6th Cir. 1989). Specifically, the district court explained:

The City also argues that plaintiff cannot make out a prima facie case for the position of Deputy Commissioner because the plaintiff did not apply for the position. . . . The Sixth Circuit, however, has recognized that in certain situations it is not necessary for a Title VII plaintiff to apply for a position in order to assert a claim. . . . Wanger v. G.A. Gray Co., 872 F.2d 142 (6th Cir. 1989). Plaintiff admitted in his deposition that he never applied for the position of Deputy Commissioner. (Nguyen Dep. at 186.) Relying on Wanger, plaintiff contends that his application was not necessary because the City "did not publish notice of [the] vacant position," "and the record is clear that Plaintiff would have applied had he known of the posting, or that submission of his application would have been fruitless." (Pltf. Opp....