NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0520n.06 No. 11-3075 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
PAULTOTH, Plaintiff-Appellant,

v. CI TY OF TOL EDO; MI CHAEL J
. NAVARRE, in his officia l capa city as Chief, Toledo Police Depa rtment; R OB ERT REI

NB OL T, in his officia l capa city as Direc tor, Depa

rtment of Public Safety , Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR T H E N O RT HERN DI STRI CT OF OH I O

BEF ORE: BOG GS and GRI FF I N, Circuit J udg es; and B ARZ I LAY, Judge. * GRI FF I N, Circuit J udg e. Paul Toth appea ls the district court’s entry of summary judgme nt on hi s claims of employ ment discrimination. We affirm. I
. Paul Toth, a Cauca sian male, has been a patrolman with the Toledo Police Depa rtment since 2000. Throug hout his tenure , he has rec eived sever al awa rds and co mmendations for his public service . Unfortunately , he has a lso been disciplined for some rathe r ser ious offense s.

The Honora

ble J udit h M
. B a r zi la y , Senior J udg e, United States Court of I nternational Trade , * sitti ng by desig nation.No. 11-3075

Toth v. Cit

y of Toledo
I n J uly 2007, Toth pleade d no contest t o administrative charg es of “Conduct S ubservient” and “Willful Violation of any law of the State of Ohio or ordinanc e o f t h e C i t y of Toledo.” The char g es arose from a citiz en complaint made by Dar nell Gipson. Gipson was video r ecor ding the

arr est of a suspe ct when T oth and another office r confr onted and later arr ested him. Acc ording to Gipson, Toth and the other office r used excessive forc e by applying pressure to the handcuf fs for no
rea son. During an investigation into Gipson’s all eg ations of excessive use of forc e and willful violation that arose from the incident, i t was discovered that Toth had tape d over G ipson’s ear lier
rec ordi n g o f t h e arr est. Toth denied purposely destroying evidenc e of the incident, but evidenc e offe red at a hear ing on the char g e showed otherwise. Although the char g es for excessive use of forc e and willful violati o n we re not sustained, Toth pleade d no contest to the char g es stemming from
era sure of the video rec ording

. He agree d to a fifty -day suspension, with twenty -five of the day s held in abey ance for two y ear s. I n October 2007, Toth pleade d no contest to a d mi n is tr a ti v e c h a r g e s of “Conduct Unbec oming

an Offic er.” This c harg e arose out of a complaint filed by a fellow serg eant who alleg ed that Toth used excessive forc e and abused his authority during the arr est of a suspect following a traff ic stop for loud m u s i c. Be cause this was Toth’s second alleg ed major violation of Department rules in a period spanning less than four months, he was place d o n re s t ri ctive duty , pending the out come of the investigation. He was order ed to surre nder his badg e, police ca p , we ap o n , and police identification car d, and was prohibited from eng ag ing in police-r elated outside employ ment. He was also assig ned to the I nvestig ative Service s Division, wher e he perf ormed tasks such as filing closed
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y of Toledo

case s and org anizing files. Althoug h orig inally char g ed with “Abuse of Authority ,” Toth pleade d
no contest to “Conduct Unbec oming an Offic er.” He ag ree d to a thirty -day suspension, with fiftee n of t he day s held i n abey

ance for two y ear s. I n addition, his employ ment was terminated, with the termination held in abe y ance for thre e y ear s. I n 2006, Toth sat for the written serg eant examination. He did well, rec eiving the ei ghth highe st score am o n g the forty -eig ht who took the test. The selec tion proce ss for promotion to serg eant involves consideration of various fac tors, including the applicant’ s oral-inter view scor e, written-e x erc ise score , educa tion, sick-time usag e, previous perf ormanc e eval u ations, leng th of service , and disciplinary rec ord. The decision-make r has discretio n in e v a lu a ti n g a n d b a la ncing these criter ia. Police Chief Michae l Nava rre , the decision-make r here , testified that he never g ave specia l consideration to minorities, fema les, or persons with disabiliti es, with respe ct to promotion to serg eant. Twelv e office rs wer e promoted to serg eant betwee n J uly 2006 and Marc h 2008 – eleve n wer e Cauca sian and one was Afric an-A merica n. I n J une 2010, five more office rs wer e promoted; three
wer e Cauc asian a

nd two wer e Af

rica n-Amer ican. Toth ha s not been promoted. I n J une 2009, Toth sued t he City of Toledo, Navar

re, and Robert R einbolt, Direc tor of t he Depa rtment of Public Safety for Toledo, claiming that they discriminated ag ainst him on the basis 1
Toth sued Nava

rre and Reinbolt only i n t h ei r o fficial capa cities as ag ents of the City of 1 Toledo, so the action is one only ag ainst the City of Toledo. See Matthews v. Jones , 35 F.3d 1046, 1049 (6th Cir. 1994) (“A suit ag ainst an individual in his officia l capa city is the equivalent of a suit ag ainst the g overnme ntal entity .”); see also Kentucky v. Graham , 473 U.S. 159 , 1 6 5 -66 (1985) (“O fficia l-ca

pacity suits

. . . g ener ally repr esent only another way of plea ding a

n action aga inst an - 3 -No. 11-3075

Toth v. Cit

y of Toledo
of his rac e when they disciplined him in 2007 and when they did not promote him to serg eant. He
asser ted cause s of action under Ohio Rev. Code § 4112.99 and 42 U.S.C. § 1983. Def endants moved for summary judgme nt on all of Toth’s cl ai m s at the close of discovery

. A mag istrate judge
rec ommended g ranting defe ndants’ motion. Over Toth’s objections, the district c ourt adopted the
rec ommendation and ente red summar y judgme nt in defenda

nts’ favor

. Toth timely

appea led. I I
. We revie w de novo a district court’s g rant of summary judgme nt. Longaberger Co. v. Kolt , 586 F.3d 459, 465 (6th Cir. 2009). Summary judgme nt is proper “if the movant shows that there is
no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 5 6 (a ); see also Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). When deter mining whether the m o v an t h as met this burden, we view the evidenc e in the light most favor able to the nonmoving party
. Smith W holesale Co. v. R.J. Rey nolds Tobacco Co. , 477 F.3d 854, 861 (6th Cir. 2007). I I I
. T o th has not addre ssed the portion of the district court’s decision enter ing summa r y ju d g me nt
on his state-law claim. Acc ording ly , this claim is abandone d, and we do not addre ss it. See Music

v. Arrowood Indem

. Co. , 632 F.3d 284, 286 n.1 (6th Cir. 2011). The only claim befor e us is the one under § 1983. entity of which a

n office r is an ag ent.” ( citation and interna l quotation marks omitted)). - 4 -No. 11-3075

Toth v. Cit

y of Toledo

A. Toth cla i m s t h at defe ndants violated the Equal Protection Clause of the Four teenth Amendment when they discriminated ag ainst him on the basis of rac e by disciplining him and later fa i ling to promote him to serg eant. His claims are broug ht pursuant to 42 U.S.C. § 1 9 8 3
. Def endants contend that, beca use these claims are predic ated upon employ ment discrimination, they
are pree mpted by Title VI I of the fede ral Civil Rights Act of 1964. They ref ere nce our statement in Day v. W ayne County Board of

Auditors , 749 F.2d 1199 (6th Cir. 1984), that Title VI I “provide s the exclusive reme dy when the only § 1983 cause of action is ba sed on a violation of Title VI I .” Id. at 1204. Def

endants have misread Day
. Day involved a unique situation, not prese nt here , wher e the plaintiff sued under Title VI I and § 1983 for conduct that only violated Title VI I
. The district court found that the plaintiff’s employ er demoted him in reta liation f or filing complaints with the Equal Employ ment Opportunity Commi ssion, a violation of Title VI I ’s anti-re taliation provision, but not of the Constit ution or another fede ral statute. I t awa rded injunctive relief that was permitted by Title VI I , but denied the plaintiff’s reque st under § 1983 for damag es. On appea l, we aff irmed the denial of damag es soug ht under § 1983, holding that Title VI I , which did not allow for the damag es soug ht, aff orded the sole reme dy for a plaintiff who claims that the defendant viol ated only Title VI I , and not the Constitution or another fede ral statute. We de termined that it would be anomalous to hold that, wher e “ the onl

y unlaw ful employm ent pr actice consists o f the violat ion of a right create d by
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y of Toledo
Titl e VII , the plaintiff can by -pass all of the administrative proce sses of Title VI I and g o direc tly into court under § 1983.” Id. at 1204 (empha sis added)

. We also stated that the holding did not disturb
our ear lier holding in Grano v. Departme nt of Dev elopment , 637 F.2d 1073 (6th Cir. 1980), that “an employ ee may sue her public employ er under both T itle VI I and § 1983 when the § 1983 violation rests on a claim of infring ement of rig hts g uara nteed by the Constit ution.” Day , 749 F.2d at 1205;

see W oodruff v. Oh ma n , 29 F. App’x 337, 343 (6th Cir. 2002) (“A s Day makes clea r, Title VI I provides the exclusive reme dy only with reg ard to those rig hts that are secur ed by Title VI I but are not protected indepe ndently of Title VII by theConstit ution. ” (e mphasis added) ). Her e, Toth’s § 1983 claims are based not upon violations of Title VI I – indeed, Title VI I is mentioned n o wh er e in his complaint – but instead upon violations of the Constitution’s Equal Protection Clause. Day d o es not fore close Toth from asser ting a claim under § 1983 for alleg ed violations of these rig hts simply beca use he is not also asser

ting a claim under Title VI I
. See, e.g. , W eberg v. Franks , 229 F.3d 514, 522 (6th Cir. 2000); see also Annis v. Cnty. of W estche ster , 36 F.3d 251, 255 (2d Cir. 1 9 9 4 ) (“We

. . . hold that an employ ment discrimination plaintiff alleg ing the viol ation of a constitutional rig ht may bring suit under § 1983 alone, and is not require d to plead
concur rently a violation of Title VI I .”). B. To succe ed on his § 1983 claim, Toth must prove: (1) that he was deprive d of a rig ht secur ed by the Constitut ion or fede ral law s; and (2) that the deprivation was committed by a person acting under color of state law. 42 U.S.C. § 1983; see Parratt v. Taylor , 4 5 1 U. S
. 5 2 7 , 5 3 5 (1981)
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y of Toledo ( overruled on othe r grounds by Daniels v. W illiams , 474 U.S. 327 (1986))

. Only the first eleme nt is disputed here

. To repe at, Toth claims that he was deprive d of his F ourtee nth A mendment rig ht 2 to equal protection under the law wh en d ef en dants disciplined him and later did not promote hi m to serg eant, both times bec ause of his race

. “Proof of rac ially discriminatory intent or purpose is require d to show a violation o f t h e Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev

. Corp. , 429 U.S. 252, 265 (1977). There fore , “[i] n order to e stablish a n equal pr otection violation ag ainst a public employer in a section 1983 action, a plaintiff must show that the employ er made an adver se employ m ent decision ‘with a discriminatory intent and purpose.’ ” Boger v. W ayne Cnty. , 950 F.2d 316, 324-25 (6th Cir. 1991) (citation omitted). The plaintiff must establish that the employ ment decision at issue would not have be en made “but for” t he plainti ff’ s rac e, W eberg , 229 F.3d at 522, which is to say he must prove that “discriminatory intent more likely than not was t h e b asi s of the adver se employ ment action.” Gutzwill er v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988) (citation and internal quotation marks omitted). Toth has prese n t ed n o d i rec t evidenc e of discrimination, so he must prove it throug h circ umstantial evidenc e. A helpful way of proving d iscrimination circ umstantially is throug h the
A municipality

may be held liable a s a “pe rson” under § 1983 only for de privations made 2 pursuant to a policy , prac tice, custom, or proce dure of the municipality

. See Monell v. Dep’ t of Soc. Servs. , 436 U.S. 658, 690 (1978). Def endants contend that Toth cannot demonstrate the exis tence of any policy or custom. We need only addre s s t h e ar gu m ent if we find sufficie nt evidenc e of a constitutional violation. See W hitson v

. Knox Cnty. Bd. of E duc. , No. 10-6240, 2012 WL913708, at *8 (6th Cir. Mar. 20, 2012) (“Without a deprivation, policy does not matter.” ). - 7 -No. 11-3075

Toth v. Cit

y of Toledo
burden- shifting approa ch first articulated in McD onnell Douglas Corp. v. Gree n , 411 U.S. 792 (1973). We look to case s involving claims of disparate treatment under Title VI I for guidance in the equal- protec tion a

naly sis. See Sutherland v. Mich. Dep’ t of Treasury , 344 F.3d 603, 614 ( 6th Cir. 2003); W eberg , 229 F.3d at 522; see also G utzwil ler , 860 F.2d at 1325 (noting that “the showing a plaintiff must make to rec over on a disparate treatment claim under Title VI I mirrors that which must be made to r ecove r on an equal protec tion claim under section 1983”). We a ddress eac h of Toth’s claims separ ately

. 1. To establish a prima fac ie case of reve rse rac e discrimination with respe ct t o an alleg ed adver se employ

ment action such as discipline, the plaintiff m ust demonstrate: (1) backg round circ umsta n c e s to s u p port the suspicion that the defe ndant is that unusual employ er who discriminates ag ainst the majority ; (2) that the plaintiff was qualified for the job; (3) that the plaintiff suffe red an adver se employ

ment action; and (4) that the plaintiff was treated differ ently than simil arly situated employ ees of a differ ent rac e. Romans v. Mich. Dep’ t of Human Servs. , 668 F.3d 826, 837 (6th Cir. 2012). The only

question here is whether T oth satisfies the first and f ourth eleme nts. Wit h respe ct to the first element, defe ndants contend that Toth has not demonstrated backg round circ umstances sug g esting defe ndants discriminate ag ainst the majority with r espec t to punishment. Such circ umsta n ces might exis t wher e, for example, the defe ndant has a history of improperly considering rac e as a fac tor in emp l o y m en t -re lated decisions, wher e the employ er’ s workfor ce is predominantly comprised of minor i t i es , or wher e the person in char g e of making
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y of Toledo employ ment decisions is a minority

. See Zambetti v. Cuyahoga Cmty. Coll. , 314 F.3d 249, 257 (6th Cir. 2002); Hout v. City of Mansfield , 550 F. Supp. 2d 701, 722-23 (N .D. Ohio 2008). Toth points to the fac t that newspa per editorials in the Toledo communi t y p ri o r t o his discipline opined that strained rac e relations cause d riots in Toledo in 2005. T h e s am e ed i t o rials called for investigation a

nd punishment of white office rs who treated Afric an-A merica ns harshly

. Toth believes that the City eventua lly succumbe d to p r e s s u r e from the Afric an-A merica n community when it punished him so sever ely and bega n hiring more Africa

n-Amer icans. Acc ording to Toth, the curr ent may or is Afric an-A merica n, as are the Direc tors of the Offic e of Affir mative Action and the Off ice of Safety , and var ious members of the City ’s B oard of Communi ty

Relations. T hese fac ts are insufficient to cre ate an infere nce of discrimination ag ainst the majority

. T o th has provided no indication of the rac ial makeup of the City ’s employ ees, and no indication that any Afric an-A merica

n employ ee was hired on acc ount of his or her rac e. The simple exis tence of rac ial diversity on the City ’s pay roll does n o t g ive rise to the infere nce that it discriminates ag ainst the majority

. Cf. Sutherland , 344 F.3d at 615-16 (bac kg round circ umstances a re de monstrated whe re Afric an-A merica

ns held 11% of t he relevant posit ion, even though they re p re sented only 5.2% of the qualified workfor ce in the state; persons in traditionally protec ted classes, such as rac ial minorities, fema les, and the disabled, repr esente d 77% of all new hires; and those in a protec ted class held 71% of the rele vant positions). Toth also cannot show that he was punished more sever ely than simil arly situated minority office rs. A plaintiff is “not require d to demonstrate an exact corr elation betwee n himself and others
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Toth v. Cit

y of Toledo
sim i l ar l y s ituated; rathe r, he [m ust] show only that he and his proposed comparators wer e si milar in all rele vant respe cts” and, in the discipl i n ar y contex t, “that he and his proposed compar ators eng ag ed in a cts of compar able seriousness.” Bobo v. United Parc el Serv ., Inc. , 665 F.3d 741, 751 (6th Cir. 2012) (interna l citation omitted). Toth offe rs four patrolmen and one serg eant, all Afric an Americ ans, whom he believ es we re p u n i s hed less sever ely than he was for what he contends was compar able c onduct. Eric Boa rd rec eived written repr imands, counseling , and brief suspensions held in abeyance for offe nses such as “L ate for Duty ,” “F ailure to Kee p Court Appea ranc e,” “Persona l Appea

ranc e,” “L ack of Energ y ,” “Demea nor,”“ Recognition of Command,” and“ Absenc e without L eave .” Toth has failed to show that these offe nses are simil ar i n s ev er i t y to his offe nses for “Conduct Unbec oming an Offic er,” “Conduct Subservient,” and “Willful Violation of Any L aw of the State of Ohio or Ordinance of t h e C i t y o f T oledo.” Nor has Toth shown that the conduct g iving rise to Boa rd’s off enses wa s as serious a s Toth’s willful destruction of evide nce. Offic ers Andre Bills and By ron Daniels wer e char g ed with “Excessive Use of For ce” for an incident involving their arr est of a fourtee n-y ear -old boy

. But the char g es wer e not sustained, so the office rs wer e neve r punished. The y are not appropriate compar ators. Offic er Marlon Shockley was foun d g uilty , afte r a hear ing, of a char g e of “Conduct Unbec oming an Offic er” for fig hting with another person wh i l e o ff d uty
. He was sentenc ed to

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Toth v. Cit

y of Toledo twenty day s’ suspension, with ten day s held in abeyance for two y ear s. Whil e he was punished less 3

sever ely than Toth, Shockley ’s conduct was of a differ ent nature than Toth’s, and there are leg itimate
rea sons why Toth would be punis hed more sever ely

. One of Toth’s cha

rg es arose from what was deter mined to be the willful destruction of evidenc e, a char g e that, unlike fig hting, could jeopar dize Toth’s ability to assist in future criminal prosec utions. Moreove r, all of Toth’s conduct took place in the course of his officia l duty , while Shockley ’s took place while off duty

. Toth’s conduct is thus
more likely to result in the C i t y b ei n g sued or criticized for the conduct of its employ ees, while Shockley ’s off- duty conduct does not leg ally implicate the City

. Cf. W right v. Murray Guard, Inc. , 455 F.3d 702, 710- 11 (6th Cir. 2006). Shockley and Toth ar e not similarly situated. Toth lastly offe rs S er gea n t Dan Br andon, who pleade d g uilty to char g es of “Conduct Unbec oming an Offic er,” “Abuse of Authority in Dea ling with the Public,” and “ Co n d u c t Su b v e r s iv e to the Good Orde r and Discipline of the Depa rtment.” Br andon threatened a store cler k with arr est unless she enga g ed in sexual conduct with him. He also told the clerk th at s he shoul d use drugs. These w ere serious offenses, and they wer e met with a serious punishment: the mayor per sonally terminated Br andon’s employ ment and did not hold the termination in abeyance . Although Br andon was later reinstated afte r he succe s s fu l l y arbitra ted t he decision, that fac t is irrele vant here. What is important is that the City did not punish Br andon less sever ely than Toth for offe nses arg uably of the same de g ree .

His sentenc e was later reduc ed following an appea l to the Civil Service Commi ssion. We 3 consider the initial dis cipline only , beca use Toth did not simi larly appea l his conviction. - 11 -No. 11-3075

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y of Toledo
Toth cannot establish a prima fac ie case of rac e discrimination with respe ct to his discipline. 2. To establish a prima fac ie case of reve rse race discrimination in the contex t of a fa i l u re to promote, the plaintiff must prove: (1) backg round circ umstances that support the suspicion that the defe ndant is that unusual employ er who discriminates ag ainst the majority ; (2 ) that the plaintiff applied for, and was qualified for, a promotion; (3) that the plaintiff was considere d for, and denied, the promotion; and (4) other employ ees o f s i m i l ar qualifications who wer e not members of the majority wer e promoted. Sutherland , 344 F.3d at 614. Toth cannot establish backg round circ umstances demonstrating discrimination ag ainst the majority with respe ct to promotions. Ag ain, there is no evidenc e reg arding the rac ial makeup of the workfor ce and how it compar es to the rac ial composition of the comm u nity from which it hires. Additionally , during the time that Toth was first passed over for a promotion, twelve of the thirteen office rs promoted we re Cauc asian, a s wer e thre e of the five off icer s later pr omoted in J une 2010. Fur thermore , the decision-make r wi t h respect to promotions at the time, Police Chief Michae l Nava rre , is Caucasian. Cf. Zambetti , 314 F.3d at 257 (“[T]he person in char g e of hiringfor CCC, Chief Har

ris, was himself Afric an-A merica n. This i s sufficie nt, in our opinion, to satisfy [t he] ‘bac kg round circ umstances’ require ment.”). Toth also cannot demonstrate that he had qualifications simil ar to a minority patrolman, let alone a patrolman o f a n

y race, who was promoted to serg eant. One of the key fac tors Nava rre considers with respe ct to prom otion is the candidate’s disciplinary rec ord. He has never once
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y of Toledo promoted to serg eant a patrolman who was disciplined for a major offe nse wi t h i n fi v e y ear s of consideration. I n this case , Toth had three violations arising out of two separ ate incidents within a span of four months. Toth has not identified any patrolman who was promoted to serg eant despite a compa rable disciplinary

history

. 4 Toth cannot e stablish a prima fa cie c ase of discriminatory

failure to promote. I V. For these re asons, we a ffirm the judg ment of the district cour t.

I n his reply brief, Toth sug g ests that Anita Madison was promoted despite a more eg reg ious 4 disciplinary history

. The argument is waived and lacks merit reg ardle ss. Even assuming compar able offe nses and disciplines betwee n the two office rs, Madison’s offe nse occur red over s eve n years befor e she was promoted, and the collective barg aining ag ree ment in place provides that major offen s es ar e remove d from an office r’s rec ord afte r five y ear s. Toth, on the other hand, was still within the probationary

period of his punishment when he was c onsidered f or promotion. - 13 -