File Na me: 12a1116n.06 NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON

No. 10-4161 UNITED STAT ES COURT OF AP P EALS FOR THE SI XTH CI RCUI T

NOEL WI L L I AMS, Plaintiff-Appellant,

v. KI MBERL Y Z URZ , in her officia l and persona l capa cities; OHI O DEPARTMENT OF COMMERCE, Def endants-A

ppellees. ON APPEAL FROM THE UNI TED STATES DI STRI CT C O U R T F O R T H E SOUTHERN DI STRI CT OF OHI O

/ BEF ORE: KEI TH, MARTI N, and B OGGS, Circuit J udg es. BO YCE F. MARTI

N, J R., Circuit J udg e. No el W illiams sued the Ohio Depa rtment of Commerce and its Direc to r , K imbe rly Z urz. Wil liams asser ted violations of fede ral and state statutes prohibiting discrimination and reta liatory actions based on rac e and speec h protec ted by the First Amendment to the Unit ed S t at es C onstitut ion. The dist rict court g rante d the Defenda nts’ motion for summary judgme nt on all claims. For the following rea sons, we AF F IRM the judgme nt of the district court. I. W illiams beg an working for the Depa rtment as a para leg al assistant in the Division of S ec u ri t i es in 1994. Thoug h her position chang ed over the y ear s, Wil liams worke d in th e s am eNo. 10-4161

W illiams v. Zurz

, et al. Pag e 2 division until her termination. Since 2004, Wil liams has also been the President of the Central Ohio Chapter of the National Association for the Advanc ement of Colored People (“N AACP”). As a state employ ee, Wil liams was also a member of the Ohio Civil Service Employ ee Association, AFSCME L ocal 11. On May 24, 2007, the De p a r tm e n t’s Chief I nformation Offic er lear ned that another employ ee of the Depa

rtment, Roz land Flax, had likely acc essed secur ed files perta ining to Ohio’s For eclosure Task For ce and forwa

rded the files to Wil liams. The For eclosure Task For ce was cre ated in Marc h 2007 by Gover

nor Ted Strickland a

nd chair ed by

Z urz. The files ac cesse d belong ed to Z urz. The Chief I nformation Offic er repor ted the incident to Chase Canfield, the Depa rt m en t ’s Human Resource s Direc tor, who re ported the inc ident to Z urz. On May 25, Flax and Wil liams wer e place d on paid administrative leave pending the
outcome of an internal investigation into the acc essing of Z urz’s files. By l et t er , W i l l iams was place d on administrative leave and dire cted to r emain at home in a “wor k-re ady ” status dur ing her reg ular schedule d work hours, in acc ordanc e with Depa rtment policy

. Canfield conducte d the i n t er nal investiga

tion, during which he found that Wil liams had not eng ag ed in miscon d u ct b y

rec eiving the files beca

use the files wer e not actua lly secur ed and wer e acc essible to the majority of

users within the Depa

rtment. I n the course of the investigation, an analy sis of Wil liams’s computer

reve aled that Wil liams eng aged in a “hig h deg ree of non-work- rela ted I nterne t acc ess.” The Depa rtment’s Computer Use Policy prohibited non-work- relat ed I n t ernet use and Wil liams had previously been disciplined for computer misuse in 2006 when she emailed a pornog raphic car toon to a cowor

ker.No. 10-4161

W illiams v. Zurz

, et al. Pag e 3 On J une 4, 2007, while Wil liams was still on administrative leave , Wil liams met with J ohn Hase ley , the Ohio Gover

nor’s Chief of Staff. Acc ording to Williams, a t this meeting she spoke to Hase ley about her conce rns reg arding disparities in minorit y h i ri n g, promotion, rete ntion, and discipline in the Depa

rtment, and sug g ested names of minorities, including herse lf, for inclusion on the For eclosure Task F orce . On J uly 13, Canfield interviewe d Wil liams in connec tion with his investigation, which had expanded to include a revie w of the new suspected violations of the Computer Use Policy and other suspected policy violations. Canfield—who had appar ently lear ned about Wil liams’s meeting with Hase ley —asked Wil liams about her email use, the timing of her meeting with Hase ley as it rela ted
to her reg ular work hours, and other suspected infrac tions of Depa rtment policy

. On J uly 26, Z urz sent an email to H asele y inquiring about the “natur e” of Wil liams’s J une 4 meeting with Hase ley

. Katie J ones, the Gover

nor’s Administrative Assistant, responde d to Z urz’s email and—at Hase ley ’s instruction—stated that the meet ing cover ed issues including the Columbus NAACP’s personne l

rec ommendations for positions wit h i n Ohio g overnme nt and for appointments to the For eclosure Task For ce and t h e May 25 letter informing Wil liams that she had been place d on paid administrative leave

. Acc o rd i n g t o t he email from J ones, Wil liams share d a copy of the May 25 letter with Ha seley

. Canfield prepa

red a repor

t of his investigation, which identified instances when Wil liams violated Depa

rtment policy by eng ag ing in non- work-r elated inter net ac cess, working in e x cess of schedule d hours wit hout authorization, and falsify ing her t i m e s h eets. The report concluded t hat, while on administrative leave , Wil liams attended the meeting with Hase ley duri n g h er re g ularlyNo. 10-4161

W illiams v. Zurz

, et al. Pag e 4

s ch ed u l ed work hours, without the prior authorization of her supervisor, in violation of the Depa rtment’s paid administrative leave policy

. Wil liams’s attendanc e at the meeting cause d her to be out of her home i n excess of t he allott ed thi rty minutes of W i l l i am s ’s l u n ch hour. This was in violation of the letter placing W illiams on administrative leave , which require d her to rema in at home, i n work-r eady status, during her leave. There was also conflicting evidenc e about whether she met with her union repr esenta tive during h er reg ular work hours while on leave

. Ba sed on Canfield’s repor

t, Andre w Shuman, the Depa rtment’s L abor Relations Offic er, conducte d a predisciplinary hear ing with Wil liams on Aug ust 15. Shuman rec ommended to Z urz that Wil liams be terminated; Z urz decide d to terminate Wil liams. On Aug ust 30, Z urz terminated Wil liams on four g rounds: (1) insubordination during her paid administrative leave ; (2) violation of the Computer Use Policy ; (3) falsify

ing time sheets; and (4) working in excess o f schedule d hours without authorization. Wil liams g rieve d her termination throug h the Ohio Civil Service Employ ee Association and the applicable collective barg aining ag ree ment. Wil liam Anthony w a s a s s ig n e d to r e p r e sent the Ohio Civil Service Employ ee Association during the arb i t ra t ion of Wil liams’s g rieva nce. Anthony testified that, during this proce ss, he met wi t h Zurz to discuss the possibili ty of Z urz resc inding Wil liam s ’s t ermination. Acc ording to Anthony , Z urz told Anthony that Wil liams “wa s being terminated beca

use [W illiams] has too much ‘powe r’ and that [Zurz] is Direc tor of [t he] Depa rtment of Commerce; that [Zurz] needs to send a mess age t o employ ees that [Zurz] is the one with the ‘powe r.’” Acc ording to Anthony , Z urz also st at ed t h at , “despite the stated rea sons for theNo. 10-4161

W illiams v. Zurz

, et al. Pag e 5 termination, Ms. Wil liams was rea lly being terminated for by passing [Zurz] and g oing to the Offic e of the Gove rnor.” After

arbitra tion, W illiams’s termination was upheld for just cause. On Fe bruar

y 25, 2008, Wil liams filed this action befor e the district court, alleg ing violations of st ate and fede ral law by Z urz, the Depa rtment, and J ohn Does. Wil liams subsequently filed an amende d complaint asser ting additional claims for relief

. Wil liams’s amende d complaint asser ted claims of rac ial discrimination in violation of 42 U.S.C. § 1981; rac ial discrimination, hostile work environment, and reta liation in violation of Ohio law; wrong ful discharg e in violation of Ohio public policy ; d ep ri vation of U.S. Constit utional rig hts in violation of 42 U.S.C. § 1983; conspirac y in violation of 42 U.S.C. § 1985(3); First Amendment re t aliation; and equal protec tion violations of the Ninth and Four

teenth Amendments of the U.S. Constit ution. Z urz and the Depa rtment moved for summary judgme n t on all claims. I n her reply , Wil liams abandone d all claims except those “under section 1981/1983, a nd First Amendment reta liation.” The district cour t gr anted summary judgme nt to Z urz and the Depa rtment, finding that Wil liams could not make the prima fac ie case for her rac e discrimination claims pursuant to sections 1981 and 1983 beca use she did show that she was trea ted differ ently from simil arly situated employ ees and that Wil liams could not preva il on her First Amendment claim beca

use she had failed to demonstrate the require d causa l link betwee n her protec ted activity

and her termination. Subsequently , Wil liams filed a motion seekingrelief from judgme nt, and the district cour t denied the motion. On appe al, Will iams arg ues that the district court e rre d in gr anting summary judgme nt on: (1) her claim of reta liation in violation of the First Amendment; (2) her claim of rac e reta lia t i o n pursuant to se ctions 1981 and 1983; (3) her claim of rac e discrimination pursuant to sections 1981No. 10-4161

W illiams v. Zurz

, et al. Pag e 6 and 1983; and (4) Z urz’s claim of qualified immunit y . Z urz and the Depa rtment arg ue that summary judgme nt on these cla ims was proper . We affir m the judgme nt of the district court. II. This Court “re view[s] a district court’s g rant of s u m mary judgme nt de novo .” Binay v. Bettendorf

, 601 F.3d 640, 646 (6th Cir. 2010). Summary judgme nt is proper if the materia ls in the

rec ord “show[] 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. 56(a)

. “I n deciding a motion for summary judgme nt, the court must view the fac tual evi d en ce and draw all rea sonable infere nces in favor of the nonmoving party .” Banks v. W o l f e C nty. Bd. of Educ. , 330 F.3d 888, 892 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)). A. Ret aliation Wil liams arg ues that the district court wrong fully g rante d summary judgme nt to Def endants

on her First Amendment reta liation and her “expressive association” reta liation claim. She also arg ues that she stated a claim for “ra ce reta liation” pursuant to se ctions 1981 and 1983 that should have survived summary judgme nt. All three of Wil liams’s reta liation claims are based on her

asser tions that she was terminated in reta liation for statements she made during her J une 4 meeting with Hasele y

and for her e x pressive a ssociation with the NAACP. To preva il in a claim of reta liation for activity protec ted by the First Amendment, Wil liams
must show that: “(1) [she] was participa ting in a constitutionally protec ted ac t i v i ty ; (2) the defe ndant’s action injured [ W i l l i am s ] in a way likely to deter a person of ordinary firmness from further participa tion in that activity ; and (3) the adver se action was m o tivated at least in part byNo. 10-4161

W illiams v. Zurz

, et al. Pag e 7 [W illiams’s] protec ted conduct.” Ctr. for Bio-Ethical Reform, Inc. v. Napolit ano , 648 F.3d 365, 371 (6th Cir. 2011). I f t he plainti ff meets this initial burden, it then falls to the employ er to show that it would have re ac h ed the same decision to terminate the employ ee even in the absenc e of the protec ted speec h. Id. Once the employ er prese nts this evidenc e, “summary judgme nt is war rante d if, in light of the evidenc e viewed in the light most favor able to t h e p l ai ntiff, no rea sonable juror could fa il to return a verdic t f or the defe ndant.” Eck

erman v . Tennessee Dep’ t of Safety , 636 F.3d 202, 208 (6th Cir. 2010) . Ex pressive a ssociation reta liation claims follow the same fr amewor k as other First Amendm en t re t ali ation claims, see Ake rs v. McG innis , 352 F.3d 1030, 1036 (6th Cir. 2003), and the claims follow the same fr amewor k reg ardle ss of whethe r raised pursuant to se ction 1981 or 1983. See, e.g. , Hilbert v. Ohio Dep’ t of Rehab. & Corr. , 121 F. App’x 104, 114 (6th Cir. 2005) (applying the same analy tical framework to reta liation claims broug ht p u rs u ant to sections 1981 and 1983). As a public employ ee, Wil liams is entitled to F irst A mendment protec tion if she spoke “as

a citizen” while addre ssing “a matter of public conce rn.” Connick v. Mye rs , 461 U.S. 138, 146-47 (1983); Fox v. Traverse City Area Pub. Schs. Bd. of Educ. , 605 F.3d 345, 349 (6th Cir. 2010). Wil liams must also show that the Depar tment “‘ha d no overr iding state interest in ef ficient public service that would be under mined by [her] speec h.’” Murphy v. Cockrell , 505 F.3d 446, 449 (6th Cir. 2007) (quoting Silberstein v. City of Dayton , 440 F.3d 306, 318 ( 6th Cir. 2006)). Assuming without deciding that Wil liams has demonstrated that s h e en gaged in protec ted activity during her meeting with Hase ley , and beca use her termination was an adver se employ ment action, we consider whether she has established a causa l link betwee n these two events. To establishNo. 10-4161

W illiams v. Zurz

, et al. Pag e 8 the third prong , i.e. , causation, Wil liams must “point to specific , nonconclusory alleg ations

rea sonably linking her speec h to employ er discipline.” Rodgers v

. Banks , 344 F.3d 587, 602 (6th Cir. 2003) (interna l quotation marks omitted). “A causa l link can be shown through direc t or ci rc u mstantial evidenc e, including showing temporal proxi mity betwee n eng ag ing in protec ted activi t y and suffe ring an adver se employ ment action that may cre ate an infere nce of causation.” Eck erman , 636 F. 3d at 209. Wil liams contends that she has shown causa tion based on: (1) the temporal proxi mity betwee n Z urz lear ning of the substance of Wil liams’s meeting with Hase ley and Z urz’s decision to terminate Wil liams; and (2) Z urz’s statement to Anthony that “despite the stated

rea sons for the termination, Ms. Wil liams was rea lly being terminated for by passing her and g oing
to the Offic e of the Gover

nor.” Wil liams arg ues that Z urz lear ned about the substance of Wil liams’s meeting with Hasele y

only thirteen da

y s befor e Z urz de cided to te rminate her. Wil liams c ontends that, if Anthony ’s testimony is cre dited, then the rea sons g iven by Z u rz an d the Depa rtment for terminating Wil liams—her violations of Depa rtment policies—ar e pre text ual. “[W ]e have a cce pted tempora l prox imity as a valid basis from which to draw an inferenc e of reta liatory motivation under limit ed circ umstances

. . . . Specifica lly , the more time that elapse s betwee n the protec ted activity and the adver se employ ment action, the more the pl ai n t i ff must supplement [her] claim with other evidenc e of reta liatory conduct to establish causa lity .” Veree cke

v. Huron Valley Sch. Dist. , 609 F.3d 392, 400 (6th Cir. 2010) (citations and internal quotation marks omitted). This Court has found a temporal g ap of only twenty -one day s “is signific ant enoug h to constitute indirect evidenc e of a causa l connec tion so as to cre ate an infere nce of reta liatory motive.” DiCarlo v. Potter , 358 F.3d 408, 422 (6th Cir. 2004). “I n analy zing the fac ts in temporal proxi mityNo. 10-4161

W illiams v. Zurz

, et al. Pag e 9

case s, we have alway s looked at the totality of the circ umstances to deter mine whether an infere nce of reta liatory motive could be drawn,” and we assess eac h case individually

. Veree cke , 609 F.3d at 401. We conclude that Z urz has failed to meet the third prong o f h er reta liation claims beca use

s h e h a s n ot prese nted “spec ific, nonconclusory alleg ations rea sonably linking her speec h to e mp lo y e r discipline.” Rodger

s , 3 4 4 F.3d at 602 (interna l quotation marks omitted). The only evidenc e of what and when Z urz knew about the nature of Wil liams’s meeting with Hase ley is J ones’s email sent

on J uly 26. But Z urz was place d on administrative leave on May 24, well befor e her meeting with Hase ley ; the Department’s investigation, which led t o the di scover y of ot her suspicio u s computer activity and other potential infrac tions, was initiated on May 24. On J uly 13, Canfield met with Wil liams to collect more information about the evidenc e of internet-use violations, the leng th of her meeting with Hase ley , and the other alleg ed infrac tions. On Aug ust 8, t h i rt ee n d ay s afte r Z urz communicated with J ones about the J une 4 meeting , Shuman issued a not e t h at a pre-disciplinary meeting would be held on Aug ust 15. I t was not until Aug ust 28, i n l i gh t o f the pre- disciplinary meeting , that Shuman rec ommended Wil liams be disciplined. Z urz acte d on that rec ommendation and decide d to terminate Wil liams on Aug ust 29. Thus, more than one month had elapse d betwee n the date Z urz rece ived the ema il and the date Z urz decided to ter minate Will iams. “Substantial case law from thi s [ C ] ircuit cautions about the permissibilit y of draw ing an infere nce of causa

tion from temporal proxi mit y al o n e. ” V eree cke , 609 F.3d at 400. This case is distinguishable from others wher e we have found that proxi mity in combination with other fac tors shows causation. For example, we have held that a temporal p ro x imity of three months, inNo. 10-4161

W illiams v. Zurz

, et al. Pag e 10 combination with incre ased scrutiny of the employ ee by the employ er, is sufficie nt to show causa tion
at t he sum mary judgme nt stag e. See Hamilton v. Gen’l Elec. Co. , 556 F.3d 428, 435-36 (6 t h Cir. 2009). We have also found t hat a tem p o ra l p ro x imity of j ust under three months , in combination with ver b al t h reats of termination, was enoug h to demonstrate a causa l link. See Tuttl e v. Metro. Gov’ t of Nashville , 474 F.3d 307, 321 (6th Cir. 2007). I n d ee d , we h ave found that temporal proxi mity alone is “enoug h to constitute evidenc e of a causa l connec tion for t he purposes of satisfy ing a prima fac ie case of reta liation” only when “an adver se employ ment action occur s very close in time afte r an employ er lear n s of a protec ted activity .” Mick ey v. Z eidler T ool & Die C o. , 516 F.3d 516, 525 (6th Cir. 2008) (finding temporal proxi mity to be sufficie nt evidenc e of causa tion wher e termination occur

red on the same day as employ er lear ned of protec ted conduct)

. “B ut wher e

some time elapse s betwee n when the employ er lear ns of a protec ted activity and the subsequent adver se employ

ment action, the employ ee must c ouple tempora l prox imity with other evide nce of
reta liatory conduct to establish causa lity .” Id. ; see also Hafford v. Seidner , 183 F.3d 506, 515 (6th Cir. 1999) (finding that temporal proxi mity of “two to five months” betwee n protec ted conduct and adver se action is insufficient); Cooper v. City of North Olmsted , 795 F.2d 1265, 1272 (6th Cir. 1986) (finding that, wher e employ er filed disciplinary notices only wee k s af ter protec ted conduct and discharg ed plaintiff within four months of the protec ted conduct, temporal proxi mity is insufficient to support an infer ence of re taliation). I n this case, while Z urz knew that Will iams had convey ed personne l r ecommendations for positions within the Ohio g overnme nt and on the For eclosure Task For ce on behalf of the Columbus NAACP, there is no evidenc e bey ond the one-month temporal proxi mity that this speec h was a fac torNo. 10-4161

W illiams v. Zurz

, et al. Pag e 11 in Z urz’s decision t o fire Wi lliams. Additionally , the concern about Wil liams’s computer misus e preda tes her alleg ed protec ted activity

. Fur thermore , there is no evidenc e that Z urz had knowledg e of any of the criticisms Wil liams all ege d l y v o iced ag ainst her employ er during her meeting with Hase ley

. Unlike case s wher e we have found that temporal proxi mit y in combination with other fac tors demonstrates causation, here W illiams has not identified evidence o utside of t he temporal g ap to show causation. Given the circ umstances here —the lack of evidenc e showing that Z urz knew of any rac ially motivated conce rns articula ted by Wil liams during her meeting with Hase ley , and the fac t that an investigation into the misconduct for which Wil liams was ultima t el y t erminate d was alre ady underw ay well befor e the alleg edly protec ted statements wer e made—we conclude that the temporal proximit y

alone he re doe s not show causa tion. Z urz’s statement t hat W illiams had “too much pow er ” an d “j u s t leapf rog g ed over

. . . just
went over [Zurz] and went to the Gover nor’s office , ran try ing to g et her job back,” does not sug g est that Wil liams was terminated in reta liation for any alleg ed First Amendment activity

. I ndeed, g iven that Wil liams has not provided evidenc e showing that Z urz or others in the Depa rtment wer e awa

re of any part of Wil liams’s conver sation with Haseley that may have ha d to do with discrimination, diversity , or disparate trea tment, and in light of the evidenc e befor e us, this statement can only

rea sonably be interpre ted to ref er to Z urz’s frustra tion that Wil liams rai s ed t h e issue of her administrative leave with Hasele y . Viewing the evidenc e in the light most fa vorable to Williams, she has not established fac ts

rea sonably linking her alleg ed First Amendment ac t i vity to Z urz’s decision to terminate her employ ment

. Be cause Wil liams has failed to establish a causa l link sufficie nt to show that herNo. 10-4161

W illiams v. Zurz

, et al. Pag e 12 alleg ed F irst Amendment ac tivity was a motivating fa ctor in her discharg e, she ha s failed to make

a prima fac ie showing of reta liation for protec ted activity ; we find that the district court did not err in gr anting the Def

endants’ motion for summar y judgme nt on the reta liation claims. Wil liams also argues that the district cour t erre d in failing to addre ss her “rac e retaliation” claim pleade d pursuant to sections 1981 and 1983. The district court did not addre ss any reta liation claims raised pursuant t o sections 1981 and 1983 in its order g ranting the Defenda nts’ motion for summary judgme nt. I n its denial of Will iams’s motion for relief from judg ment, the district court explained that it did not addre ss any such claim beca use it found W illiams’s claims under section 1981 and 1983 wer e plea ded as discr imination claims and not as retaliation claims. Acc ording to Wil liams, she alleg ed “ra ce reta liation” by Def endants in response to Wil liams’s “ra is[ ing] conce rns about discrimi n ation ag ainst Afric an-A merica ns in state g overnme nt” during her meeting with Hase ley , and in response to her expressive association with the NAACP

. As ex p l ained above, Wil liams has failed to demonstrate a causa l connec tion—a require d element o f an y retaliation claim—betwe en her statements to Hase ley , her association with the NAACP, and her termination. There fore , we aff

irm the district court’s judgme nt g ranting the Def endan t s ’ m otion for summary judgme nt on Wi lliams’s retaliation claims, including her “ rac e re taliation” claim. B. Race Discrim ination Wil liams claims that her termination was motivated by discriminatory animus based on her

ra ce and by her raising conce rns about discrimination ag ainst Afric an-A merica ns in t h e Oh i o g overnme nt. She arg ues t h at t h e district court err ed both by dismiss ing her claim of rac e discrimination and by failing to resolve her discrimination cl ai m s under the mix ed-motiveNo. 10-4161

W illiams v. Zurz

, et al. Pag e 13 framework. Def

endants arg ue that the mix ed-motive a naly sis applied to Title VI Iclaims does not apply to claims broug ht pursuant to section 1981. Gene rally , discrimination claims raised pursuant to sections 1981 and 1983 are g overne d by the leg al fra

mework used to analy

ze claims under Title VI I o f t h e C i v il Rights Act of 1964. See Smith v

. City of Salem, Ohio , 378 F.3d 566, 577 (6th Cir. 2004) (apply ing the Title VI I framework
to section 1983 claims); W ade v. Knoxville Utils. Bd. , 259 F.3d 452, 464 (6th Cir. 2001) (applying the Title VI I fra

mework to section 1981 claims). Section 1981 prohibits rac ial discrimination as well

as “discrimination based on association with or advoca cy for non-whites.” B a r r et t v. W hirlpool Corp. , 556 F.3d 502, 512 (6th Cir. 2009). To show discrimination, the plaintiff must prese nt either “dire ct evidenc e of discriminatio n ” o r “cir cumstantial evidenc e that would allow an infere nce of discriminatory trea tment.” Anthony v. BTR Auto. Sealing Sys., Inc. , 339 F.3d 506, 514 (6th Cir. 2003). “Discr imination claims broug ht pursuant to [Tit le VI I ] are traditionally cate g orized as either

s in g le

- mo ti v e c laims, i.e. , wher e an illegitimate rea son motivated an employ ment d e c is io n , o r mi xe d

motive claims, i.e. , wher e both l egi t i m ate and illegitimate rea sons motivated the employ er’ s decision.” W

hite v. Bax ter Healthcare Corp. , 533 F.3d 381, 396 ( 6th Cir. 2008). The district court analy

zed Wil liams’s claim as a single -motive claim. The court deter mined Wil liams failed to come f orwa rd with dir ect evidenc e of discrimination—a finding Wil liams does
not challeng e on appea l—and t here fore analy zed Wi lliams’s race discrimination claims under the tripartite burden- shifting fra mework first announce d by the U.S. Supreme Court in Mc Do n n ell Douglas Corp. v. Green , 411 U.S. 792 (1973). The dist rict court deter mined that Wil liams failed
to show a prima fac ie case of rac e d i scrimination. The district court applied the same analy sis toNo. 10-4161

W illiams v. Zurz

, et al. Pag e 14 both her section 1981 and section 1983 discrimination claims. Wil liams arg ues that the application of the McD onnell Douglas fra mewor k t o h er d iscrimination claim was err or beca use the district court should have instead applied a mix ed-motive a

naly sis. I n case s involving circ umstantia l e v id e n c e , th is Circ uit has long applied the tripartite burdenshifting McD onnell Douglas fra mework. See, e.g. , W

hite , 533 F.3d at 391. Under McD o n n ell Douglas , “[t] he burden is first on the plaintiff t o demonstrate a prima fac ie case of rac e discrimination; it then shifts to the employ er to off er a leg itimate, non-discriminatory explanation for its actions; finally , the burden shif t s b ac k to the plaintiff to show prete x t— i.e. , that the employ er’ s explanation was fabr icated to conce al an illega l motive.” Chen v. Dow Chem. Co. , 580 F.3d 394, 400 (6th Cir. 2009). I n Dese rt Palace, Inc. v. C osta , 539 U.S. 90, 100-01 (2003), howeve r, the United States Supreme Court made clea r that plaintiffs can pursue mix ed-motive Title VI I claims based solely on circ umstantial evidenc e. Subsequent to Dese rt Palace , our Circuit stated that the McD onnell Douglas standard “does not apply to the summary judgme nt analy sis of [t hese] Title VI I mix ed-motive claims.” W hite , 533 F.3d at 400. I nstead, to overc ome a defe ndant’s motion for summary judgme nt, “a Title VII p l ai n t iff asser ting a mix ed-motive claim need only produce evidenc e s u ff

i ci en t to convince a jury that: (1) the defe ndant took an adver se employ ment action ag ainst the pl aintiff; and (2) ‘rac e, color, relig ion, sex, or nat i o nal origin was a motivating factor’ for the de fenda

nt’s adver se employ

ment action. Id . (quoting 42 U.S.C. § 2000e-2(m))

. Wil liams arg ues that t h e mix ed-motive standard is appropr iate in this case and that McD onnell Douglas does not app ly to her claim. Although this Court has repe atedly stated that section 1981 and Title VI I share the same prima fac ie test, this Court has also held that, while Dese rtNo. 10-4161

W illiams v. Zurz

, et al. Pag e 15 Palace establishes a mix ed-motive standard for Title VI I cl ai m s , i t “does not modify McD onnell Douglas in em p loy

ment discrimination lawsuits filed under [section] 1981.” Aquino v. Honda of America, I

nc. , 158 F. App’ x 667, 676 (6th Cir. 2005) (pe r curiam); but see Bobo v. United Parcel Serv., Inc. , 665 F.3d 741, 757 (6th Cir. 2012) (apply ing the mix ed-motive standard to claims raised pursuant to section 1981 and Title VI I ). Reg ardle ss of whether we analy ze Wil liams’s claims under the mix ed-motive standard articula ted in Dese rt P alace or the burden- shifting framework of McD onnell Douglas , Wil liams has failed to mee t her burde n to overc ome Def endants’ motion for summary judgme nt on her ra ce disc rimination claims. “[T] he ultimate question at s u m m ary judgme nt on a mix ed-motive case is whether the plaintiff has presen t ed evidenc e, direc t or circ umstantial, from which a rea sonable jury could logic ally infer that a protec ted char acte ristic was a motivating factor in the defe ndant’s adver se employ ment action ag ainst the plaintiff.” W right v. Murray Guard, Inc. , 455 F.3d 702, 713 (6th Cir. 2006) (alterations om itted) (c i t at i o n and int erna l quotation marks omi tted). Wil liams arg ues first that Z urz’s statement to Anthony that Wil liams was terminated beca use “she has too much ‘powe r’” shows that rac ial discrimination was a motivating fac tor in Z urz’s decision to terminate Wil liams. As noted above, howeve r, Z urz’s alleg ed statements to Anthony wer e u n re l at ed to rac e. I ndeed, Anthony testified that Z urz stated that she was upset that Wil liams “lea pfrog g ed” over Z urz by g oing
to the Gover

nor’s office to “try [] to g et her job back” while on administrative leave

. Z urz’s
statements to Anthony , even when interpre ted in the light most favor able to Wil liams, do not rela te to Wi lliams’s race or her

association with the NAA CP.No. 10-4161

W illiams v. Zurz

, et al. Pag e 16 Wil liams also arg ues that the short time betwee n when Z urz lear ned about t h e n ature of Wil li am s’s meeting with Hase ley and when Z urz decide d to terminate Wil liams is evidenc e of discriminatory m o t i v e. The only evidenc e in the rec ord about Z urz’s knowledg e of Wil liams’s meeting with Hasele y

is the J uly 26 email to Z urz f rom J ones. J ones indicate s that, at the June 24 meeting , Wil liams convey ed to Hase ley the Columbus NAA C P ’s recommendations for positions within the Ohio g overnme nt and for appointment s t o t h e Foreclosure Task For ce. Wil liams also provided a copy of her adminis trative-le ave notice to Hase ley

. The email does not ref er to the

conce rns that Wil liams alleg edly convey ed about the lack of minority repr esenta tion in upper- level manag ement in the Depa rtment, on the For eclosure Task For ce, or in the Ohio g overnme nt m o re g ener ally

. Moreove r, by the time J ones sent the email, Wil liams had been on leave for over a month, and the Depa

rtment had alre ady identified and beg un an investigation into the infrac tions for which she was ultimately terminated. The investigation of Wil liams’s computer usag e had been initiated

on May 24, sever al wee ks befor e Wil liams met with Hase ley

. As explained above in the context of Z urz’s reta liation claim, the one-month proxi mity betwee n Z urz lear ning about the natu re of Wil liams’s meeting with Hase ley and Z urz’s subsequent decision to terminate Wil liams is not enoug h by i tself to cre ate a question of fac t about Z urz’s motive for terminating Wil liams. Cf. Mick ey , 516 F.3d at 525 (stating , in the context of a reta liation claim, that “whe re some time elapse s betwee n when the employ er lear ns of a protec ted activity and the subsequent adver se employ ment action, the employ ee must couple temporal proxi mity with other evidenc e of reta liatory conduct to establish causa lity .”). Be cause Wil liams has not established a g enuine issue of m ater ial fac t as t o whether an unlawful fac tor motivated her termination as require d under the mix ed-motive standard,No. 10-4161

W illiams v. Zurz

, et al. Pag e 17 any err or i n the di strict court’s refusa l to apply a mi x ed-motive standard t o this claim would have been ha rmless. L ik e w is e , Wi ll ia

ms ’ s c la im s f

a il s w hen analy zed as a single -motive claim. Under McD onnell Douglas , Wil liams must establish a prima fac ie case of discrimination by showing that: (1) she was

a member of a protec ted class; (2) she suffe red an adver se employ ment action; (3) she was qualified for the position; and (4) she was repla ced by som eo n e o u t side the protec ted class or was trea ted differ ently than simil arly situated, non-protec ted employ ees. See Murray Guard , 455 F.3d at 707. Z urz and the Depa

rtment conce de that Wil liams has met her burden on the first t h re e o f t h e four elements. Willi ams has made no eff ort in the district court or on a ppeal to make a showingof the fourth element, and so she has failed to state a prima fac ie case of discrimination. See id. at 709-10. We conclude that t h e d i s t ri ct court did not err in g ranting summary judgme nt to Def endants on Wil liams’s claims of ra cial discrimination. C. Quali fi ed Im m uni ty Be cause Wil l i am s has not demonstrated that a violation of her constitutional or statutory rig h t s occur

red, we ag ree with the district court that Z urz is entitled to qualified immunit y . See Pearson v. Callahan , 555 U.S. 223, 231 (2009) (“The doctrine of qualified immunit y protec ts g overnme nt officia ls from liability for civil damag es insofar as their conduct does not violate clea rly established statutory or con s t itutional rig hts of which a rea sonable person would have known.” (interna l quotation marks omitted)). I I I

. For the fore g oing r easons, the judg ment of the district cour t is AF F IRMED

.