Arendale v. Memphis Cty ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0116p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
MICHAEL J. ARENDALE,
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No. 07-5230
v.
,
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CITY OF MEMPHIS, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 05-02190—J. Daniel Breen, District Judge.
Argued and Submitted: January 29, 2008
Decided and Filed: March 20, 2008
Before: SILER, CLAY, and COOK, Circuit Judges.
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COUNSEL
ARGUED: Amber Isom-Thompson, KIESEWETTER, WISE, KAPLAN & PRATHER, Memphis,
Tennessee, for Appellee. ON BRIEF: James Edward King, Jr., ESKINS KING, Memphis,
Tennessee, for Appellant. Amber Isom-Thompson, Robert D. Meyers, KIESEWETTER, WISE,
KAPLAN & PRATHER, Memphis, Tennessee, for Appellee.
CLAY, J., delivered the opinion of the court, in which SILER, J., joined. COOK, J. (p. 18),
delivered a separate opinion concurring in part and concurring in the judgment.
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OPINION
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CLAY, Circuit Judge. Plaintiff Michael Arendale is a white police officer employed by the
Memphis Police Department. He appeals the district court’s grant of summary judgment in favor
of Defendant City of Memphis (“The City”) in this civil rights suit brought under 42 U.S.C. §§ 1981
and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Tennessee
Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq. For the reasons that follow, the
district court’s decision granting summary judgment in favor of the City is AFFIRMED.
STATEMENT OF FACTS
Plaintiff Michael Arendale is a self-described “White American citizen” who has been an
officer with the Memphis Police Department (“MPD”) since 1990. (J.A. 17–18) He alleges that he
1
No. 07-5230 Arendale v. City of Memphis Page 2
was given less desirable assignments than his African-American colleagues, that ill-treatment of him
by an African-American supervisor created a hostile work environment, that he was illegally
suspended from work after an altercation with that same supervisor, and that he was retaliated
against after he filed a charge with the EEOC.
In August 2002, after more than twelve years working in the MPD’s North Precinct, Plaintiff
sought a transfer to the Northeast Precinct, which he believed to be a “better work location” because
“[t]he demographic area was a lot better.” (J.A. 29, 49) Plaintiff was granted the transfer, and was
assigned to the 7 a.m. to 3 p.m. shift. At the time relevant to this case, Plaintiff was supervised by
Lieutenant Andre Cox, who is African-American. Also during this time, the Northeast Precinct’s
acting commander was Major Danny Cooper, and the Deputy Chief of the MPD was M.J. Wright.
Both Major Cooper and Chief Wright are white.
A. Arendale’s Assignments
Upon arriving at the Northeast Precinct, Plaintiff’s first assignment was the “extra board.”
Extra board officers do not have continuing responsibility for a specific geographic area or “ward,”
but instead are assigned to fill in for officers who call in sick or who are otherwise unable to patrol
their assigned wards. Although Plaintiff admitted in a deposition that new officers in a precinct are
typically assigned to the extra board so that they can “become familiar with the entire precinct,” he
also testified that he was assigned to the extra board for three months, which he believes is an
“abnormally long amount of time” for a veteran officer to have this assignment. (J.A. 293, 295)
According to testimony by Major Cooper, an officer’s assignment to a ward or the extra board is
normally determined by the officer’s lieutenant, although the lieutenant’s commander might
occasionally intervene if the commander “saw a problem.” (J.A. 432)
Plaintiff was eventually assigned to Ward 828, a ward he believes is “one of the better and
less stressful wards in the Northeast 1Precinct.” (Plaintiff’s Br. at 4) On May 8, 2003, however,
Plaintiff was reassigned to Ward 822. According to Plaintiff, he was informed by Lieutenant Cox
that the decision to reassign him came from a meeting of precinct command officers, and was made
because they believed “crime was running rampant in 828 and [Plaintiff] wasn’t doing anything to
curtail it . . . .” (J.A. 304) This testimony was corroborated by that of Major Cooper, who said that
he personally made the decision to move Plaintiff out of Ward 828 due to a large number of
complaints from ward residents that the officers in that ward were not sufficiently attentive to their
duties.
B. Alleged Harassment
Plaintiff also alleges that various altercations between himself and Lieutenant Cox amounted
to racially motivated harassment. According to Plaintiff, Lieutenant Cox would often call Plaintiff
into his office and criticize him for incorrectly completing accident reports. Plaintiff testified that
at least once a week, Cox would “berate me about my ability to write a report that I had been doing
for 12, 13 years.” (J.A. 63–64) Plaintiff also claimed that Cox treated other white officers in the
same way, but that black officers did not receive this treatment. When asked how he knew that
Cox’s criticism was limited to white officers, however, Plaintiff admitted that it was “[j]ust my
observation.” (J.A. 64)
1
In his brief, Plaintiff claims that Lieutenant Cox replaced him and his partner “with two African American
rookie police officers . . . .” (Plaintiff’s Br. 4) The only evidence in the record to support this claim, however, is the
affidavit of Plaintiff’s partner, Officer Jeff Chaudoin, who does state that Lieutenant Cox assigned three African-
American officers to Ward 828, but not until several months after Plaintiff and Chaudoin were reassigned.
No. 07-5230 Arendale v. City of Memphis Page 3
In his deposition, Lieutenant Cox testified that at the time he was working at the Northeast
Precinct, the MPD had recently changed the format of its offense reports, and that “numerous
officers” had problems complying with the new forms. (J.A. 86–87) Cox further testified that, to
ensure compliance with federal reporting regulations, the MPD put pressure on lieutenants to ensure
that the forms were completed correctly, and even threatened consequences to lieutenants whose
subordinates did not comply. As a relatively junior lieutenant, Cox testified that he was particularly
concerned that he could face disciplinary charges for non-compliance. Lieutenant Cox added that
several officers, both white and African-American, had complained about his insistence that the
reports be filled out correctly, and he named three black officers who had lodged such complaints.
No testimony or other statements from these officers appear in the record.
In addition to his claims that Lieutenant Cox harassed him by criticizing his accident reports,
Plaintiff also alleges that two additional incidents constituted racially motivated harassment. In June
of 2003, Plaintiff claims, he was called into Cox’s office and accused of leaving a crime scene
unattended, when in fact it was a different officer who had left the crime scene.2 Plaintiff admits,
however, that after he told Lieutenant Cox that Cox was accusing the wrong officer, Cox eventually
left the office, verified Plaintiff’s statement and admitted that Plaintiff was correct. While Plaintiff
adds that Cox then “just started on something else berating me and telling me I handled that all
wrong,” Plaintiff does not explain the subject of this new accusation. (J.A. 310)
Additionally, Plaintiff alleges he was harassed by Lieutenant Cox after an incident involving
a different crime scene. According to Plaintiff, he and his partner arrived at the scene of an
attempted aggravated robbery and discovered a knife which had been used in the crime. Both men
stood by the knife to guard it. Although Cox said nothing to either officer upon his arrival at the
crime scene, Plaintiff says that the next day Lieutenant Cox “began berating me about standing at
the crime scene, looking at a knife and that [sic] it did not take two officers to watch the knife.”
(J.A. 775)
On February 4, 2004, Plaintiff was reassigned to the extra board. Shortly thereafter, on
February 20, 2004, he filed a charge with the EEOC alleging both race and age discrimination
against Lieutenant Cox.
C. Insubordination Charges
On April 15, 2004, Plaintiff was assigned to the front desk at the Northeast Precinct. As the
desk officer, Plaintiff was required to follow a one page set of “desk procedures,” which include a
requirement that “officers working the desk . . . will be aware of who is at the location, whether it
is visitors, or officers and will monitor any visitors and will not allow visitors in unauthorized
areas.” (J.A. 108) While at the desk, Plaintiff was approached by Charles Allred, who identified
himself as a retired police officer and asked if he could look at some of the pictures on the precinct
walls. In Plaintiff’s own words, the following exchange then occurred:
I caught some motion coming from my left side and I looked up and it was
Lieutenant Cox coming. And he said in just a hostile manner, is that man down there
with you? I said, no sir. He said, well, who is he? I said, he’s a retired police
officer, he’s here to do a report and he asked if he could look at the pictures on the
wall while I finished this report and I said okay. He said, has anybody ever told you
about letting people go back there? I said, no, sir. I said he’s a retired police officer.
I said, you know, what’s the big deal? [Lieutenant Cox said w]ell, I want you to
write me a memo on what he is doing back there. Well, at that specific moment, that
2
In an affidavit, Plaintiff alleges that the officer who actually left the crime scene is African-American. (J.A.
774)
No. 07-5230 Arendale v. City of Memphis Page 4
was about the most ridiculous thing I have ever heard in my life, and I am on the
phone trying to take a report. I said, Lieutenant Cox . . . I don’t have time to write
you a memo for that.
(J.A. 330–331)
Lieutenant Cox relieved Plaintiff of duty, and Plaintiff was eventually sent home. While there
is some dispute as to whether Plaintiff was sent home because he lacked the required equipment to
be reassigned to the field, or because Major Cooper observed Plaintiff and believed he was too visibly
angry to be entrusted with police work, three facts about this incident are undisputed. First,
Lieutenant Cox told Plaintiff to write a memo. Second, Plaintiff expressly refused to do so. Third,
Plaintiff did not bring his pistol belt to work, a violation of MPD regulations.
Lieutenant Cox charged Plaintiff with insubordination for failing to comply with his
instructions, and with neglect of duty for Plaintiff’s failure to bring his pistol belt to work.3 Under
MPD regulations, an officer commits insubordination when they “display disrespect to, or disregard
for, a supervisory member of this department, either on or off duty. This includes cases of verbal
abuse, abruptness, or rudeness toward a superior or failure to promptly and courteously respond to
suggestions, counseling, or disciplining of a superior officer.” (J.A. 110) Lieutenant Cox alleged
that Plaintiff committed insubordination when he failed to identify retired Officer Allred upon request
by Cox, appeared unaware of Allred’s location and was “asked several times about the individual
[but] purposely ignored” these requests. (J.A. 109-110). Lieutenant Cox also charged that Plaintiff
was insubordinate when he refused to write a memo as instructed.
D. Plaintiff’s Discipline Hearing and Appeal
A discipline hearing was held before Major Cooper on June 28, 2004. During this hearing,
Plaintiff alleged that Lieutenant Cox was “picking on him,” and he brought up past incidents
including the dispute over his ward assignments. (J.A. 114) Afterward, Major Cooper sustained the
charge of insubordination, noting that he had personally observed Plaintiff immediately after the
incident and that “his anger showed on his face and he was so upset that he was in no condition to
work at the desk or in the field.” (J.A. 113) Major Cooper also rejected the allegations that
Lieutenant Cox was treating Plaintiff unfairly, adding that “some of the things that Officer Arendale
was upset about, such as his car assignment, were administrative decisions or matter[s] of policy and
[were] not because Lt. Cox was ‘picking on him.’” (J.A. 114) Plaintiff was suspended from duty for
eight days on the insubordination charge, and two days for neglect of duty.
Plaintiff appealed this suspension to Deputy Chief Wright, and an appeal hearing was held
on September 17, 2004. During that hearing, Plaintiff admitted that he refused to write the memo as
instructed by Lieutenant Cox. Nevertheless, Plaintiff’s representative at the hearing argued that he4
deserved a shorter suspension because he had only been disciplined one other time by the MPD.
Chief Wright sustained both charges against Plaintiff, but reduced his overall suspension to four days
and ordered him to attend anger management classes.
3
Plaintiff concedes that he was required to wear his pistol belt while on duty, and does not contest this charge.
4
The record is somewhat unclear on Plaintiff’s prior disciplinary record. While his representative stated that
Plaintiff had only one “sustained charge[]” prior to the incident with Lieutenant Cox, (J.A. 116,) Plaintiff testified in a
deposition that he had previously received “a written reprimand and an oral reprimand.” (J.A. 270) In his deposition
testimony, however, Plaintiff only described in detail one disciplinary incident, which involved him accidentally
discharging a shotgun while he was working on it in his office.
No. 07-5230 Arendale v. City of Memphis Page 5
E. Procedural History
On April 21, 2004, Plaintiff filed another EEOC charge, claiming the April 15, 2004 incident
was in retaliation for his previous EEOC complaint. This charge was amended on July 1, 2004 to
include his suspension.
The instant case was filed in the Western District of Tennessee on March 10, 2005, alleging
disparate treatment, hostile work environment and retaliation in violation of § 1981; violation of his
Equal Protection rights pursuant to § 1983; retaliation and hostile work environment under the THRA
and retaliation under Title VII. On October 25, 2006, the district court granted summary judgment
to the City and dismissed this case in its entirety. This appeal followed.
DISCUSSION
Standard of Review
A district court’s grant of summary judgment is reviewed de novo. Farhat v. Jopke, 370 F.3d
580, 587 (6th Cir. 2004). Such a grant should be affirmed when “the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact” as to
an essential element of the non-moving party’s case. Fed. R. Civ. P. 56(c). An issue of fact is
“genuine” if a reasonable person could return a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). After the moving party has satisfied its burden, the
burden shifts to the non-moving party to set forth “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). When no
genuine issues of material fact exist, this Court reviews de novo the district court’s conclusions of
substantive law. Farhat, 370 F.3d at 588.
Analysis
I. The Implied Cause of Action Contained in § 1981 Does Not Provide For Municipal
Liability
Plaintiff first raises several claims under § 1981, which provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens, and shall be subject5 to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other.” § 1981(a). While § 1981
does not expressly afford a cause of action to private parties, the Supreme Court held in Runyon v.
McCrary, 427 U.S. 160 (1976), that private defendants may be held liable under its provisions. Id.
at 174–175. Plaintiff claims that § 1981 also contains an implicit cause of action against
municipalities that engage in racial discrimination in employment. In Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701 (1989), however, the Supreme Court held that § 1981’s implicit cause of action does
not extend to suits brought against state actors. Id. at 732. While Plaintiff argues that a 1991
amendment to § 1981 overruled Jett, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071,
1071–72 (1991), we disagree.
A. Jett
Jett presented a similar set of facts to the instant case. In Jett, a white football coach and
schoolteacher was reassigned on the recommendation of an African-American principal. 491 U.S.
5
Although the express language of § 1981 suggests that its protection does not extend to “white citizens,” the
Supreme Court has held that white plaintiffs may state a claim under § 1981. See McDonald v. Santa Fe Trail Transp.
Co., 427 U.S. 273, 286–87 (1976).
No. 07-5230 Arendale v. City of Memphis Page 6
at 706–707. Alleging race discrimination, the coach sued the school district under § 1981. Id. In
a decision dismissing this § 1981 claim, the Supreme Court held that, even though § 1981 creates an
implicit cause of action against private defendants, state actors such as the school district may not be
sued directly under that statute. Id. at 731–32.
In so holding, the Supreme Court also held that a dichotomy exists between rights and
remedies created by federal statute. When Congress creates a right, but provides no means of
enforcing that right, then a private cause of action is implicit in the rights-creating statute. See id.
(“In the context of the application of § 1981 and § 1982 to private actors, we had little choice but to
hold that aggrieved individuals could enforce this prohibition, for there existed no other remedy to
address such violations of the statute.” (emphasis and internal quotations removed)). On the other
hand, when a rights-creating statute contains no express cause of action, but a means of enforcing that
right is contained elsewhere in federal law, then the Court must examine whether Congress intended
to create multiple means of vindicating the same right. See id. at 732 (“[W]hatever the limits of the
judicial power to imply or create remedies, it has long been the law that such power should not be
exercised in the face of an express decision by Congress concerning the scope of remedies available
under a particular statute.”); see also Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“The judicial
task is to interpret the statute Congress has passed to determine whether it displays an intent to create
not just a private right but also a private remedy.”)
Applying this method of statutory interpretation, Jett first looked to the express language of
both § 1981 and § 1983. While § 1981 is “completely silent” on the issue of whether or not it creates
a private cause of action against state actors, § 1983, as originally enacted, provides that any person
who, under color of law, deprives another of a right secured by law “shall . . . be liable to the party
injured in any action at law, suit in equity, or other proper proceeding for redress . . . .” Jett, 491 U.S.
at 712, 723. In other words, the language of § 1983 creates a cause of action for persons deprived
of any civil right, including the “rights guaranteed by § 1981.” Id. at 733. Accordingly, Jett fell into
the category of cases where a rights-creating statute (§ 1981) contains no express cause of action, but
a means of enforcing that right is contained elsewhere in federal law (§ 1983). Therefore, a plurality
of the Court determined that it must consider “the text and history of both the Civil Rights Act of
1866 and the Civil Rights Act of 1871, the precursors of §§ 1981 and 1983 respectively” to determine
whether Congress intended to create multiple means of vindicating the rights created by § 1981.6 Id.
at 712.
In an extensive discussion of the legislative history of §§ 1981 and 1983, the plurality
determined that § 1983 “was designed to expose state and local officials to a new form of liability.”
Id. at 723 (quoting Newport v. Fact Concerts, Inc., 453 U.S. 247, 259 (1981)). According to Jett,
“[b]oth proponents and opponents in the House viewed [§ 1983] as working an expansion of federal
jurisdiction. Supporters continually referred to the failure of the state courts to enforce federal law
designed for the protection of the freedman, and saw [§ 1983] as remedying this situation by
interposing the federal courts between the State and citizens of the United States.” Id. at 725. In
other words, the framers of the 1871 bill which became § 1983 believed such a bill was necessary
because no federal cause of action already existed to protect against civil rights violations by state
6
While Justice Scalia joined the judgment and most of the opinion of the Court in Jett, he indicated in a two
sentence separate opinion that he did not join the portions of the opinion which rely on legislative history. 491 U.S. at
738 (Scalia, J., concurring in part and concurring in the judgment). Justice Scalia’s opinion does not expressly address
whether a private cause of action against state actors exists under § 1981, but instead suggests that, even if such a cause
of action exists, it does not protect any rights not already encompassed by § 1983. See id. at 738–39 (opinion of Scalia,
J.) (“To hold that the more general provisions of 42 U.S.C. § 1981 establish a mode of liability for a particular category
of offense by municipalities that is excluded from the closely related statute . . . would violate the rudimentary principles
of construction that the specific governs the general . . . .”) Four Justices joined a dissenting opinion by Justice Brennan.
Id. at 739 (Brennan, J., dissenting).
No. 07-5230 Arendale v. City of Memphis Page 7
actors. Such a belief would only be possible, however, if a private cause of action against state actors
was not already created by the 1866 bill which became § 1981. See id. at 734 (“[T]he 42d Congress
which enacted the precurser [sic] of § 1983 thought that it was enacting the first, and at that time the
only, federal damages remedy for the violation of federal constitutional and statutory rights by state
government actors.”)
B. The 1991 Amendment to § 1981
Two years after the decision in Jett, Congress enacted the Civil Rights Act of 1991, which
added two new subsections to § 1981:
(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.
(c) Protection against impairment
The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.
§ 1981 (b) & (c). Plaintiff now argues that the language contained in new subsection (c) is intended
to ensure that “§ 1981 rights are to receive parallel protections against state actors and private actors,”
thus extending § 1981's implied cause of action against private defendants to violations committed
by state defendants. Federation of African American Contractors v. City of Oakland, 96 F.3d 1204,
1213 (9th Cir. 1996).
The circuits are split on whether subsection (c) creates a private cause of action against state
actors, thus overruling the Supreme Court’s decision in Jett. Compare id. with Bolden v. City of
Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006) (“[S]ubsection (c) . . . hardly confronts the holding in
Jett.”); Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000) (“[Section] 1981 makes clear
that the section creates a right that private or state actors may violate but does not itself create a
remedy for that violation.”); Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995)
(“[S]ubsection (c) did not purport to overrule Jett’s holding with respect to municipal liability . . . .”).
In order to determine which side of this split the Sixth Circuit will join, this Court must determine
whether subsection (c) “displays an intent to create not just a private right but also a private remedy.”
Sandoval, 532 U.S. at 286. Such an inquiry reveals that § 1981(c) does not provide Plaintiff with the
cause of action he seeks.
1. Section 1981(c)’s Statutory Language
This Court’s exploration of the intent behind § 1981(c) must begin with “the text and
structure” of the statute. Id. at 288. Subsection (c) provides that “[t]he rights protected by [§ 1981]
are protected against impairment by nongovernmental discrimination and impairment under color of
State law.” § 1981(c). According to the Ninth Circuit, “by including language that explicitly protects
§ 1981 rights from ‘impairment’ by both private and governmental entities, the amendment makes
clear that Congress intended a comparable scope of protection against each type of defendant.”
Federation, 96 F.3d at 1213. While § 1981(c)’s express language does indeed establish that
individuals possess equal rights under § 1981 against both private and state discrimination, such
rights-creating language does not answer the question of whether civil rights plaintiffs enjoy the same
remedy regardless of the identity of the defendant. See Butts, 222 F.3d at 894.
No. 07-5230 Arendale v. City of Memphis Page 8
As the Supreme Court explained in Jett, a dichotomy exists between rights and remedies. Just
because a statute includes rights-creating language does not mean that it also provides a private cause
of action to persons deprived of those rights, so long as Congress has also provided an effective
means of vindicating the right elsewhere in federal law. See Jett, 491 U.S. at 731 (“That we have
read [§ 1981] to reach private action and have implied a damages remedy to effectuate the declaration
of rights contained in that provision does not authorize us to do so in the context of the ‘state action’
portion of § 1981, where Congress has established its own remedial scheme.”) Accordingly, the fact
that § 1981(c) establishes equal rights for parties suing private and state defendants does not, on its
own, establish a private cause of action. Nevertheless, the absence of an express cause of action is
also not dispositive of the scope of § 1981(c), and a congressional intent to create an implied cause
of action may be inferred from other sources, such as the legislative history of a statute. Id. at 712
(plurality opinion); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 571 (1979) (examining
legislative history to determine if an implied cause of action is created by statute).
2. Section 1981(c)’s Legislative History
Subsections (b) and (c) of § 1981 were both added by the Civil Rights Act of 1991. Pub. L.
No. 102-166, 105 Stat. at 1071–72. The Civil Rights Act of 1991 was enacted for the express
purpose of “respond[ing] to recent decisions of the Supreme Court by expanding the scope of relevant
civil rights statutes in order to provide adequate protection to victims of discrimination.” 105 Stat.
at 1071. Congress believed that recent decisions by the Supreme Court had “cut back dramatically
on the scope and effectiveness of civil rights protections,” leaving what remained of historic civil
rights legislation “[in]adequate to deter unlawful discrimination or to compensate victims of
intentional discrimination.” H.R. Rep. No. 102–40(I), at 18 (1991), reprinted in 1991 U.S.C.C.A.N
549, 556. Much of the Act is intended to “restor[e] the civil rights protections that were so
dramatically limited” by these Supreme Court decisions. Id. Accordingly, this Court’s inquiry must
focus on whether Jett was one of the decisions which “so dramatically limited” civil rights as to
justify a corrective Act of Congress.
A brief review of the Act’s legislative history reveals that Jett was not one of the decisions
Congress sought to correct. Instead, the Act’s amendments to § 1981 were intended to overrule the
Supreme Court’s decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (“Patterson
II”).
Patterson II decided two questions which are relevant to the enactment of the Civil Rights
Act of 1991. First, although § 1981 protects against race discrimination in the “mak[ing] and
enforce[ment]” of contracts, id. at 176, Patterson II narrowly construed this language to encompass
only “the formation of a contract” and “efforts to impede access to the courts or obstruct nonjudicial
methods of adjudicating disputes . . . .” Id. at 176-77. Second, the Court considered whether to
overrule Runyon v. McCrary’s holding that § 1981 “prohibits racial discrimination in the making and
enforcement of private contracts.” Id. at 171 (quoting Runyon, 427 U.S. at 168) (emphasis added).
The Court’s decision to consider this second issue surprised even some of the Justices
themselves. See Patterson v. McLean Credit Union, 485 U.S. 617, 619 (1988) (“Patterson I”)7
(Blackmun, J., dissenting) (“The Court’s determination now to reach out to reconsider that prior
decision and everything that has been built upon it, is neither restrained, nor judicious, nor consistent
with the accepted doctrine of stare decisis.”); id. at 621 (Stevens, J., dissenting) (“The Court’s
spontaneous decision to reexamine our holding in Runyon v. McCrary, is certain to engender
7
Patterson II contains the Court’s substantive analysis of the questions presented in that case. Patterson I was
a brief order, issued after the first round of oral arguments, which ordered the parties to brief and argue the question of
“[w]hether or not the interpretation of 42 U.S.C. § 1981 adopted by this Court in Runyon v. McCrary, 427 U.S. 160, 96
S. Ct. 2586, 49 L. Ed. 2d 415 (1976), should be reconsidered?” Patterson I, 485 U.S. at 617.
No. 07-5230 Arendale v. City of Memphis Page 9
widespread concern in those segments of our population that must rely on a federal rule of law as a
protection against invidious private discrimination.” (internal citations omitted)). Furthermore, while
the Court eventually chose not to overrule Runyon, a majority of the Justices joined an opinion that
relied exclusively on the doctrine of stare decisis as their rationale for this decision. Patterson II,
491 U.S. at 171–176.
The legislative history of § 1981(b) and (c) reveals that both subsections are directed at the
Supreme Court’s decision in Patterson II. Section 1981(b) expressly overruled Patterson II’s
interpretation of the words “make and enforce,” establishing that “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.” § 1981
(b); see also H.R. Rep. No. 102–40(II), at 37 (“The impact of Patterson has been disastrous. Last
year, the Committee took notice that more than 200 Section 1981 race discrimination claims had been
dismissed because of Patterson.”) Read in context with § 1981(b), § 1981(c) is best understood as
also addressing the Supreme Court’s decision in Patterson II.
The legislative history on §1981(c) indicates that it was “intended to codify Runyon v.
McCrary,” H.R. Rep. No. 102-40(II), at 37; see Bolden, 441 F.3d at 1136 (holding that Congress
intended § 1981(c) to codify Runyon); Butts, 222 F.3d at 894 (same); Dennis, 55 F.3d at 156 n.1
(same); Federation, 96 F.3d at 1212 (same), and indeed such an interpretation of subsection (c) is
consistent with the judicial history of § 1981. Subsection (c) was enacted in the exact same
legislation as subsection (b), and subsection (b)’s facial language reveals that it was intended to
overrule part of the Supreme Court’s decision in Patterson II. See § 1981(b) (defining the words
“make and enforce contracts”). Patterson II’s interpretation of the words “make and enforce
contracts,” which was overruled by § 1981(b), was not the only issue in that case, however. The
Court also considered overruling Runyon, and a majority of the Court even suggested that Runyon
was on life-support, kept alive only by the doctrine of stare decisis. Patterson II, 491 U.S. at
171–176. Section 1981(c) reflects Congress’ determination that stare decisis provided an inadequate
firewall against a future Supreme Court decision obviating the rights recognized by Runyon; nothing
in § 1981(c)’s history or text indicates that Congress intended it to serve some other purpose.
Accordingly, we conclude that § 1981(c) was directed at preserving the Supreme Court’s decision
in Runyon, not, as Plaintiff argues, at overruling Jett.8
Having rejected Plaintiff’s argument that § 1981(c) overrules Jett, this Court has no choice
but to follow Jett as binding authority. Accordingly, we hold that “the express cause of action for
damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights
guaranteed in § 1981 by state governmental units,” Jett, 491 U.S. at 733; no independent cause of
action against municipalities is created by § 1981(c).9
8
This reading of § 1981(c) is bolstered by the fact that, although the Civil Rights Act of 1991 names several
Supreme Court decisions in both its text and legislative history which the act is intended to overrule, neither “even
mention[s] the Supreme Court’s opinion in Jett.” Butts, 222 F.3d at 894.
9
Moreover, even if we were to hold that an implied cause of action exists against municipalities under § 1981,
the only Court of Appeals to hold that such a remedy is implicit in § 1981 also held that the rights protected by § 1981
are coextensive with those already protected by § 1983. See Federation, 96 F.3d at 1214 (“Allowing plaintiffs to bring
suits against municipalities directly under § 1981 to enforce § 1981 rights instead of under § 1983 imposed no
substantive change on federal civil rights law.”)
No. 07-5230 Arendale v. City of Memphis Page 10
II. The District Court Properly Granted Summary Judgment on Defendant’s § 1983
Disparate Treatment Claim
Plaintiff next claims that he suffered disparate treatment on account of his race, in violation
of the Equal Protection Clause. While § 1983 permits suits against municipalities for Equal
Protection claims, “a local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents. Instead, it is when execution of a government’s policy or custom . . .
inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep’t of
Soc. Servs. 436 U.S. 658, 694 (1978). Accordingly, we must determine whether or not the alleged
discrimination occurred as a result of an official City of Memphis policy or custom. Because we
conclude that one alleged act of discrimination was made pursuant to a municipal policy, the merits
of that claim will then be discussed.
A. Municipal Liability
Plaintiff’s allegations of disparate treatment are not a model of clarity.10 Liberally construed,
however, Plaintiff appears to be claiming that his constitutional rights were violated on three separate
occasions. First, Plaintiff claims that Lieutenant Cox, motivated by racial animus, transferred him
out of Ward 828 and replaced him with African-American officers. Second, Plaintiff claims that
Lieutenant Cox falsely accused him and other white officers of incorrectly drafting their accident
reports, but did not make the same accusations of African-American officers. Finally, Plaintiff claims
that the MPD’s investigation of Lieutenant Cox’s insubordination charges, and Plaintiff’s eventual
suspension, were tainted by racial bias.
1. Custom of Inaction
Plaintiff claims that his transfer out of Ward 828 and Lieutenant Cox’s criticism of his
accident reports were both conducted pursuant to a municipal policy or custom because “Major
Cooper[] reveled in the discriminatory acts of Lt. Cox against Mr. Arendale based upon his
acquiescence of same.” (Plaintiff’s Br. at 26) Liberally construed, Plaintiff seems to be arguing that
the City may be held liable under § 1983 for its custom of inaction in failing to respond to Lieutenant
Cox’s alleged discrimination. To state a municipal liability claim under an “inaction” theory,
Plaintiff must establish: (1) the existence of a clear and persistent pattern of discrimination by
municipal employees; (2) notice or constructive notice on the part of the City; (3) the City’s tacit
approval of the unconstitutional conduct, such that its deliberate indifference in its failure to act can
be said to amount to an official policy of inaction; and (4) that the City’s custom was the “moving
force” or direct causal link in the constitutional deprivation. Powers v. Hamilton County Pub.
Defender Comm’n, 501 F.3d 592, 607 (6th Cir. 2007); Doe v. Claiborne County, 103 F.3d 495, 508
(6th Cir. 1996).
In addition to his own allegations against Lieutenant Cox, Plaintiff cites two instances which
he believes establish that the City deliberately ignored Cox’s alleged discrimination. First, Plaintiff
points to an affidavit by his white partner, Officer Chaudoin, who claims that Lieutenant Cox once
denied Chaudoin a day off on the same day that he granted an African-American officer’s request.
Second, Plaintiff notes that another white officer, Joe Giannini, once filed a charge of discrimination
against Lieutenant Cox with the EEOC. Even assuming that these incidents prove impermissible bias
on the part of Lieutenant Cox, and even assuming that they are sufficient to establish a “clear and
10
For example, on page 25 of his brief, Plaintiff says he was treated differently than African-American officers
because “Lt. Cox consistently berated Mr. Arendale and other white officers regarding alleged incorrect drafting of
police reports . . . .” (Plaintiff’s Br. at 25) Two pages later, however, Plaintiff states that “Mr. Arendale does not allege
that the unfounded criticism made by Lt. Cox of the incident reports make up his claim of disparate treatment.”
(Plaintiff’s Br. at 27)
No. 07-5230 Arendale v. City of Memphis Page 11
persistent pattern” of discrimination by Lieutenant Cox, they are insufficient to demonstrate a custom
of inaction on the part of the City.
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 . . . .” Doe, 103 F.3d at 508. Rather, the record must show that the City “consciously
never acted when confronted with its employees’ egregious and obviously unconstitutional conduct.”
Id. Given this standard, none of the incidents Plaintiff cites are sufficient to establish a custom of
inaction on the part of the City.
Officer Chaudoin’s accusation against Lieutenant Cox is easily disposed of. In order to prove
that the City “consciously never acted when confronted with its employees’ . . . conduct,” the record
must show that the City was actually confronted with Lieutenant Cox’s conduct. Id. Plaintiff cites
no evidence, however, indicating that Chaudoin reported Cox’s alleged discrimination in granting
time off requests, nor does he argue that the City was constructively aware of Cox’s alleged
discrimination in granting leave.
Similarly, the allegations of Officer Giannini are also insufficient to demonstrate that the City
failed to act when confronted with evidence of unconstitutional conduct. When a reliable government
agency, tasked with the investigation of alleged constitutional violations, concludes after a thorough
investigation that no violation has occurred, a municipality is permitted to rely on the results of that
investigation. See id. In deposition testimony, Lieutenant Cox testified that he was cleared of any
charges after a substantial investigation by an EEOC attorney. Although Cox does not have personal
knowledge of the full extent of this investigation, he testified that he was required to attend “several
interviews” each lasting “anywhere from 30 minutes to an hour.” Plaintiff does not deny that this
investigation took place, or that Lieutenant Cox was cleared of the allegations leveled against him
by Officer Giannini.
Furthermore, the record does not support Plaintiff’s claim that Lieutenant Cox engaged in
“egregious and obviously unconstitutional conduct” when he transferred Plaintiff out of Ward 828,
or when he criticized Plaintiff for his accident reports. Id. With respect to the transfers, Major
Cooper testified that he—not Lieutenant Cox—made the decision to transfer Plaintiff to a different
ward on account of the large volume of complaints he had received from residents of Ward 828 about
officer responsiveness. Plaintiff presents no evidence to refute this testimony, and indeed Plaintiff
himself testified that he was informed at the time of the transfer that the decision was made at a
meeting of senior management.11 The City has introduced substantial evidence that Major Cooper,
a white supervisor, made the decision to transfer Plaintiff. Plaintiff has raised no allegations that
Cooper was motivated by animus against white people, and indeed his own statements corroborate
Major Cooper’s testimony. Faced with this record, the City cannot be held to have ignored
“egregious and obviously unconstitutional conduct” when Plaintiff was transferred out of Ward 828.
Nor does the record support Plaintiff’s claim that the City may be held liable for Lieutenant
Cox’s criticism of his accident reports. Once again, Plaintiff relies entirely on conclusory statements
to support his claim that Cox’s criticism was motivated by racial animus. As his only evidence that
Cox acted impermissibly in criticizing the reports, Plaintiff cites to his own deposition testimony that
“[T]here was no reason . . . to call me in and berate me about a report that was done correct . . . it
couldn’t have been any other reason than race.” (J.A. 312) Plaintiff has presented nothing more than
his own subjective opinion to justify his allegations that the City discriminated against him by
11
Moreover, Major Cooper’s testimony that Plaintiff was not attentive to his duties is corroborated by Plaintiff’s
own statements that he initially sought a transfer to the Northeast Precinct because “the work at the Northeast Precinct
was not as hard or stressful as the other precincts,” (J.A. 29), and that he wanted to remain in Ward 828 because that
ward is “one of the better and less stressful wards in the Northeast Precinct.” (Plaintiff’s Br. at 4)
No. 07-5230 Arendale v. City of Memphis Page 12
allowing Lieutenant Cox to criticize his accident reports. Such conclusory statements are not
sufficient to survive any motion for summary judgment, much less to allow a municipality to be held
liable for the acts of its employees. See Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir.
2004) (“In order to survive a motion for summary judgment, the non-moving party must be able to
show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere
speculation, conjecture, or fantasy.” (internal quotations omitted)).
2. Plaintiff’s Suspension
Although the record does not support municipal liability with respect to Plaintiff’s
reassignment out of Ward 828 and with respect to Lieutenant Cox’s criticism of his accident reports,
the City is potentially liable for its decision to suspend Plaintiff. Generally speaking, a municipality
is not liable under § 1983 for the decisions of its officers. See Pembaur v. City of Cincinnati, 475
U.S. 469, 478 (1986) (“[A] municipality cannot be made liable by application of the doctrine of
respondeat superior.”). When, however, an allegedly unconstitutional decision is made by an official
with “final policy making authority,” then the municipality may be held liable for that official’s
decision, so long as the decision was made by “the official or officials responsible under state law
for making policy in that area of the city's business.” City of St. Louis v. Praprotnik, 485 U.S. 112,
123 (1988). Furthermore, as the Supreme Court explained in Praprotnik, the hallmark of municipal
liability is the finality of the decision being reviewed:
When an official’s discretionary decisions are constrained by policies not of that
official’s making, those policies, rather than the subordinate’s departures from them,
are the act of the municipality. Similarly, when a subordinate’s decision is subject
to review by the municipality’s authorized policymakers, they have retained the
authority to measure the official’s conduct for conformance with their policies. If the
authorized policymakers approve a subordinate's decision and the basis for it, their
ratification would be chargeable to the municipality because their decision is final.
Id. at 127. In other words, even if the allegedly unconstitutional decision is initially made by a
subordinate official, when that decision is appealed to and affirmed by an official with final authority
over a matter, the municipality may be held liable for this affirmance.
Applying this framework to the instant case, it is clear that the City may be held liable for the
final decision of Chief Wright. Although the Memphis City Charter allows a disciplined City
employee who is suspended for more than ten days to appeal this decision to the Civil Service
Commission, neither the charter nor the city code provides an appeal beyond the MPD when a police
officer receives a suspension of ten days or less. Memphis, Tenn. Charter, art. 34, § 247. Turning
then to the MPD’s internal procedures, MPD policy provides for a two stage review of a disciplinary
charge against an officer. Under these procedures, such a disciplinary charge is initially reviewed
by an “Administering Authority.” Memphis Police Dep’t Pol’y and Procedures Manual 3 (2003).12
While an Administering Authority may be of any supervisory rank, no officer below the rank of
“Shift or Squad Major” may suspend another officer, and no officer below the rank of
“Precinct/Bureau Commanding Officer” may issue a suspension greater than three days. Id.
When an Administering Authority sustains a charge of discipline against an officer, that
decision may be appealed to an “Appeal Authority.” Id. Like an Administering Authority, an Appeal
12
Although Plaintiff failed to include the MPD’s policy manual in the record, “whether a particular official has
final policymaking authority is a question of state law,” and thus must be determined by a judge. Praprotnik, 485 U.S.
at 123 (internal quotations omitted). Because the question of whether an official has final policy making authority is a
question of law, this Court is no more constrained by the record than it is forbidden to cite a Supreme Court case not
relied upon by the parties.
No. 07-5230 Arendale v. City of Memphis Page 13
Authority may be of any supervisory rank, provided that they are “a commanding officer or manager
in the same chain of command at a higher level than that of an administering authority who hears
appeals.” Id. Significantly, “the appeal authority shall be the last stage in the departmental review
and appeal procedure.” Id. at 6.
In the instant case, Lieutenant Cox issued a charge of discipline against Plaintiff. This charge
was sustained by Major Cooper, who served as Plaintiff’s Administering Authority. As the
Administering Authority, Major Cooper suspended Plaintiff from duty. Plaintiff then appealed this
decision to Chief Wright, who acted as Plaintiff’s Appeal Authority, and Chief Wright sustained the
suspension. As the Appeal Authority, Chief Wright has final decision making power within the
Memphis Police Department. Id. Furthermore, as neither the Memphis Charter nor the Memphis
City Code provide for further review of Plaintiff’s suspension, Chief Wright had “final policy making
authority” with respect to Plaintiff’s disciplinary charge. Praprotnik, 485 U.S. at 123. Accordingly,
insofar as Plaintiff’s suspension was unconstitutional, the City may be held liable under § 1983 for
the final disciplinary decision of Chief Wright.
B. The Merits of Plaintiff’s Disparate Treatment Claim
Having determined that the City may be held liable under § 1983 for an Appeal Authority’s
decision to suspend an employee for ten days or less, we now turn to the merits of Plaintiff’s claim
that his suspension occurred as a result of racial discrimination. In weighing an employment
discrimination claim asserting disparate treatment under § 1983, this Court applies the familiar
McDonnell Douglas framework applicable in similar cases brought under Title VII. See Weberg v.
Franks, 229 F.3d 514, 522 (6th Cir. 2000) (“[T]his court looks to Title VII disparate treatment cases
for assistance in analyzing race discrimination in the public employment context under § 1983.”)
Under this burden-shifting framework:
[A] plaintiff must first set forth a prima facie case of discrimination. The burden
then shifts to the employer to articulate some legitimate, nondiscriminatory reason
for its actions. If the employer carries this burden, the plaintiff must then prove by
a preponderance of the evidence that the reasons offered by the employer were a
pretext for discrimination. The ultimate burden of persuasion remains at all times
with the plaintiff.
Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir. 2001) (internal quotations and citations
omitted).
Generally speaking, a plaintiff alleging employment discrimination in employee discipline
must make a four-part showing in order to set forth a prima facie case of discrimination: “1) he is a
member of a protected class; 2) was qualified for the job; 3) he suffered an adverse employment
decision; and 4) was replaced by a person outside the protected class or treated differently than
similarly situated non-protected employees.” Id. at 406. Where, as here, a plaintiff alleges “reverse
discrimination”—that is, he is a member of the majority claiming employment discrimination—the
plaintiff bears the burden of “demonstrating that he was intentionally discriminated against ‘despite
his majority status.’” Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)
(quoting Lanphear v. Prokop, 703 F.2d 1311, 1315 (D.C. Cir. 1983)). Accordingly, the first prong
of the prima face case is adapted to require the plaintiff to prove “background circumstances [to]
support the suspicion that the defendant is that unusual employer who discriminates against the
majority.” Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003) (internal
quotations omitted). Similarly, to satisfy the fourth prong, Plaintiff must show that the City treated
differently similarly situated employees of a different race. Id.
No. 07-5230 Arendale v. City of Memphis Page 14
Plaintiff is a seventeen-year veteran of the MPD, and the City does not contest that he is
qualified for his job as a police officer. Similarly, the City does not contest—and could not
reasonably do so—that Plaintiff’s suspension from duty constitutes an “adverse employment
decision.” Accordingly, this case rests upon the first and fourth prongs of the prima facie case:
whether Plaintiff has shown background circumstances to support the suspicion that the City is that
unusual employer who discriminates against the majority, and whether Plaintiff was treated
differently than similarly situated non-white employees. Id.
Recent Sixth Circuit precedent suggests, in the context of reverse discrimination claims, that
the mere fact that an adverse employment decision was made by a member of a racial minority is
sufficient to establish the first prong of the prima facie case. See Zambetti v. Cuyahoga Cmty. Coll.,
314 F.3d 249, 257 (6th Cir. 2002) (“[T]he person in charge of hiring for CCC, Chief Harris, was
himself African-American. This is sufficient, in our opinion, to satisfy Murray’s ‘background
circumstances’ requirement.”) Even if this Court were to assume that Lieutenant Cox exerted
sufficient13influence over his white supervisors to impute his alleged racial animus onto them,
however, Plaintiff still has not demonstrated that he was treated differently than similarly situated
non-white employees.
Lieutenant Cox testified that he has never “brought charges for poor performance” against
an African-American officer. (J.A. 563) Plaintiff claims that this alone is sufficient to demonstrate
that Cox “did not treat African[-]American officers the same,” and therefore justifies a holding that
the City is liable. (Plaintiff’s Br. at 25) This argument, however, relies on a faulty comparison.
Superficial similarities between a disciplined employee and his colleagues are not sufficient
to show a prima facie case of discrimination. While “[t]he plaintiff need not demonstrate an exact
correlation with the employee receiving more favorable treatment in order for the two to be
considered ‘similarly-situated;’ . . . the plaintiff and the employee with whom the plaintiff seeks to
compare himself or herself must be similar in all of the relevant aspects.” Ercegovich, 154 F.3d at
352 (internal quotations omitted). Plaintiff, however, offers no examples of minority officers who
engaged in conduct potentially warranting discipline, but who received a lesser sanction than the one
Plaintiff himself received. Though it may be true that Lieutenant Cox has not filed charges of
discipline against a non-white officer, this alone is insufficient to show a prima facie case. Rather,
Plaintiff must show that a minority officer engaged in similarly-sanctionable conduct, but received
a less severe sanction. Id. Having failed to make such a showing, Plaintiff’s disparate treatment
claim cannot survive summary judgment.
C. Conclusion
Although Plaintiff’s suspension was ratified by an official with final policy making authority,
Plaintiff has failed to show a prima facie case of disparate treatment. Accordingly, the decision of
the district court granting summary judgment on Plaintiff’s disparate treatment claim is affirmed.
13
When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor
was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held
liable under a “rubber-stamp” or “cat’s paw” theory of liability. See Ercegovich v. Goodyear Tire & Rubber Co., 154
F.3d 344, 355 (6th Cir. 1998) (“[T]he discriminatory remarks of those who may have influenced the decision not to
reassign the plaintiff to other positions in the company may be relevant when the plaintiff challenges the motive behind
that decision.”); id. (holding that the remarks of a company official who did not make an ultimate employment decision
still provided proof of discriminatory motive when that official “was in a position to shape the attitudes, policies, and
decisions of the division’s managers”). The term “cat’s paw” derives from a fable in which a monkey tricks a cat into
scooping chestnuts out of a fire so that the monkey can “eagerly gobble[] them up, leaving none left for the cat.” EEOC
v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006). “Today the term ‘cat’s paw’ refers to ‘one used by
another to accomplish his purposes.’” Id. (quoting Webster’s Third New International Dictionary Unabridged 354
(2002)).
No. 07-5230 Arendale v. City of Memphis Page 15
III. The District Court Correctly Granted Summary Judgment on Defendant’s Hostile
Environment Claim
Plaintiff next argues that his alleged mistreatment by Lieutenant Cox created a hostile work
environment. To establish a prima facie case and move forward with this claim, Plaintiff must
overcome four hurdles. First, Plaintiff must prove “background circumstances [to] support the
suspicion that the defendant is that unusual employer who discriminates against the majority.”
Sutherland, 344 F.3d at 614. Additionally, Plaintiff must show that he was subjected to unwanted
racial harassment, that the harassment was based on race, and that the harassment “had the effect of
unreasonably interfering with [his] work performance by creating an intimidating, hostile, or
offensive work environment . . . .” Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). We
believe that no reasonable jury could determine that Plaintiff was harassed because of his race.
In order to survive summary judgment, Plaintiff cannot rely on conjecture or conclusory
accusations. See Lewis, 355 F.3d at 533 (“In order to survive a motion for summary judgment, the
non-moving party must be able to show sufficient probative evidence [that] would permit a finding
in [his] favor on more than mere speculation, conjecture, or fantasy.” (internal quotations omitted)).
Yet Plaintiff’s allegations of racially motivated harassment rest entirely on several statements which
are either conclusory or raise no inference of racial animus. Specifically, Plaintiff claims that “Lt.
Cox began a barrage of racial harassment that occurred weekly that [sic] centered around Mr.
Arendale writing and/or submitting allegedly improper incident reports . . . .” (Plaintiff’s Br. at 34)
He alleges that Lieutenant Cox “racially harassed” him when he moved him out of Ward 828, and
that Cox further “racially harassed” him “when he could14not justify the alleged performance reasons
why he move [sic] Mr. Arendale out of [W]ard 828.” (Id. at 34-35) Plaintiff claims that Cox
“continued to racially harass” him when he “falsely accused Mr. Arendale of leaving an accident
scene,” and while Plaintiff concedes that Lieutenant Cox eventually admitted that he was mistaken
in this accusation, Plaintiff further alleges that Cox “continued to racially harass and berate” him
when Cox subsequently criticized Plaintiff regarding an unknown issue. (Id. at 35) Accompanying
none of these allegations, however, is actual evidence of racial animus. Rather, Plaintiff supports
each allegation only with a citation to his own testimony stating his personal opinion that he was the
victim of racial harassment.15 Conclusory assertions, supported only by Plaintiff’s own opinions,
cannot withstand a motion for summary judgment. See Travelodge Hotels, Inc. v. Govan, 155 F.
App’x 235, 237 (6th Cir. 2005) (holding that briefs which are “simply filled with conclusory
allegations . . . failed to present sufficient evidence” to withstand summary judgment); Ackerman v.
Diamond Shamrock Corp., 670 F.2d 66, 70 (6th Cir. 1982); see also Fed. R. Evid. 701 (limiting
opinion testimony by lay witnesses).
In addition to these statements supported only by his own opinion, Plaintiff also alleges that
Lieutenant Cox falsely accused Plaintiff of cursing, yelling, and throwing papers during the April 15,
2004 incident which led to his suspension, and that Lieutenant Cox had no proper grounds to require
14
Plaintiff also claims that he was replaced in Ward 828 by African-American officers. The only evidence in
the record that black officers were assigned to Ward 828, however, is the affidavit of Plaintiff’s partner, Officer
Chaudoin, who states that Lieutenant Cox assigned three African-American officers to Ward 828 several months after
Plaintiff was assigned to a different ward. The fact that African-Americans wound up with Plaintiff’s preferred ward
assignment months after Plaintiff was transferred hardly raises an inference that Plaintiff’s assignments were motivated
by racial animus. Moreover, even if Lieutenant Cox did wish to reassign Plaintiff for racially motivated reasons, Plaintiff
has submitted no evidence to rebut Major Cooper’s testimony that Cooper—not Cox—personally made the decision to
reassign Plaintiff out of Ward 828.
15
Plaintiff also alleges that “Lt. Cox racially harassed Mr. Arendale when he filed the statement of charges for
insubordination . . . .” (Plaintiff’s Br. at 36) This conclusory statement, however, is not supported by any citation to
the record, and we were unable to find any support in the record for this allegation. Accordingly, it may be discounted.
See Lewis, 355 F.3d at 533.
No. 07-5230 Arendale v. City of Memphis Page 16
him to write a memo about why a retired police officer was wandering the building. To support his
first allegation, Plaintiff cites to Major Cooper’s testimony that Lieutenant Cox accused Plaintiff of
cursing, and to the affidavits of two witnesses who state that they do not recall any such cursing. To
support the second allegation, Plaintiff cites the testimony of Cooper and another police major, both
of whom state that a retired police officer should be permitted to look at pictures, so long as the desk
officer was aware of the retired officer’s location. Glaringly absent from Plaintiff’s evidence,
however, is anything which might raise an inference of racially motivated harassment. While
Plaintiff’s evidence might allow a reasonable jury to determine that Lieutenant Cox overreacted, or
that he does not particularly like Plaintiff, or even that Cox may have at times behaved obnoxiously,
it provides no support for Plaintiff’s conclusory allegations of racial animus. Title VII does not
create a “general civility code” in the workplace; it forbids racially motivated harassment. Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998). Absent proof of such impermissible bias, Plaintiff’s
hostile environment claim cannot survive summary judgment. Accordingly, the decision of the
district court granting summary judgment on this claim is affirmed.
IV. The District Court Properly Granted Summary Judgment on Defendant’s Retaliation
Claims
Finally, Plaintiff alleges that Lieutenant Cox created the April 15, 2004 conflict which led to
Plaintiff’s suspension, and that Major Cooper affirmed Cox’s charges against Plaintiff, in retaliation
against Plaintiff’s February 21, 2004 EEOC filing. He brings this claim of unlawful retaliation under
both Title VII and the THRA. Because the Tennessee “legislature intended the THRA to be
coextensive with federal law,” a retaliation claim under both statutes follows the same analysis.
Phillips v. Interstate Hotels Corp. No. L07, 974 S.W.2d 680, 683 (Tenn. 1998).
To establish a prima facie case of retaliation, 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.” Nguyen v.
City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). While temporal proximity between an assertion
of Title VII rights and an adverse employment action provides highly probative evidence of a causal
connection, “temporal proximity alone will not support an inference of retaliatory discrimination
when there is no other compelling evidence.” Id. at 566.
Plaintiff claims that “the fact that the retaliatory events occur [sic] just two months after the
EEOC charge of discrimination is enough by itself to support the causal connection element.”
(Plaintiff’s Br. at 43) This is simply a misstatement of the law. Absent other evidence of retaliation,
Plaintiff’s retaliation claim must fail. Nguyen, 229 F.3d at 563 As his sole additional evidence of
retaliatory intent, Plaintiff again refers to his own testimony, this time citing his own statement that
an MPD captain told him that Major Cooper was “out to get him for filing EEOC charges of
discrimination in February 2004.” (J.A. 929) The district court, however, excluded this statement
as inadmissable hearsay, and Plaintiff does not challenge this exclusion on appeal. Faced with no
additional competent evidence of retaliation, we hold that the district court properly granted summary
judgment to the City.
CONCLUSION
The district court properly granted summary judgment to the City on each of Plaintiff’s
claims. Under the Supreme Court’s holding in Jett, § 1981 does not create a private cause of action
against a municipality. 491 U.S. at 732. Because we conclude that no Supreme Court case or Act
of Congress has overturned this holding, we have no choice but to reject Plaintiff’s § 1981 claims.
Similarly, Plaintiff’s other claims lack merit. Both his disparate treatment and hostile environment
claims require a showing that City employees were motivated by racial animus, but the record
No. 07-5230 Arendale v. City of Memphis Page 17
provides no evidence that the alleged ill-treatment of Plaintiff was influenced by his race. Plaintiff’s
retaliation claim also fails because Plaintiff relies almost entirely on inadmissible hearsay evidence
in support of this claim. Inasmuch as Plaintiff’s § 1981 claim fails as a matter of law, and no
reasonable jury could find facts supporting Plaintiff’s additional claims, we AFFIRM the district
court’s decision granting summary judgment to the City.
No. 07-5230 Arendale v. City of Memphis Page 18
_______________________________________________________________
CONCURRING IN PART AND CONCURRING IN THE JUDGMENT
_______________________________________________________________
COOK, Circuit Judge, concurring in part and concurring in the judgment. I concur in the
judgment and opinion of the court with the exception of its analysis of and reliance on the Civil
Rights Act of 1991’s legislative history.