NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0809n.06 No. 10-5275 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J OHN K. H I CKS, Plaintiff-Appellant,

v. CONCORDE CAREER COL L EGE, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE

BEF ORE: SI L ER and KETHL EDGE, Circuit Judges; and A DAMS, District J udg e. *

P ER CURI AM. J ohn K. Hicks appea ls the di strict court’s gr anting summary judgme nt t o Concorde Ca

ree r Colleg e (Concor de). We a ffirm. Hicks f il e d a c o mp la in

t a g a in s t h is former employ er, Concorde Caree r College (“Concor de”) , alleg ing that it discriminated ag ainst him based on his rac e and g ender , cre ated a hostile work environment, and reta liated ag ainst him for filin g a compl aint with the Equal Employ ment Opportunity Commi ssion (EEOC). The district court g rante d summary judgme nt to Concorde. On appea l, Hicks argues that the district court err ed by g ranting summary judgme nt to Concorde and by failing to rule on his motion to s trike ce rtain evide nce. We revie w de novo a district court’s g rant of summary judgme nt. Alspaugh v. McConnell , 643 F.3d 162, 168 (6th C i r. 2 0 1 1 ). S ummary judgme nt is appropr iate “if the movant shows that

The Honora

ble J ohn R

. Adams, United States District J udg e for the Norther n District of * Ohio, sitti ng by

desig nation.No. 10-5275

Hicks v . Concorde Career College 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)

. Hicks first arg

ues t hat t h e d i s t rict court err ed by g ranting summary judgme nt to Concorde

on his claim that Concorde discriminated ag ainst him based on his g ender , in violation of the Equal P ay Act (“EPA” ), by paying him a lower initial salary than it paid to simil arly -situated fe m al e admissions repres en t at i ves. “[T] o establish a prima fac ie case of wag e discrimination under the EPA, plaintiffs must show that an employ er pay s differ ent wag es to employ ees of opposite sexes ‘for equal work on jobs the perf ormanc e of which require s equal skill, eff ort, an d responsibility , and which are performe d under simi lar wor king c onditions.’” Bec k-W ilson v. Principi , 441 F.3d 353, 359 (6th Cir. 2006) (quoting Corning Glass W orks v. Brennan , 417 U.S. 188, 195 (1974))

. “Onc e the plaintiff establishes a prima fac ie case , the defe ndant must prove that the wag e differen t i al i s justified under one of the four aff irmative defe nses set forth under § 206(d)( 1) of the Equal Pay Act: (1) a seniority sy stem; (2) a merit sy stem; (3) a sy stem which measure s ear nin gs b y q u an t ity or quality of production; or (4) any other fa ctor other

than sex.” Id. at 360 (interna l quotation marks and citation omitted). Assuming that Hicks made a prima fac ie showing of wag e discrimination, the district court proper ly g rante d summary judgme nt to Concorde beca use it proved that the wag e differ ential betwee n Hicks and the specifie d fema le admissions repr esenta tiv es wa s j u s t ified on a basis other than g ender

. The decla

rations of Diana Hawkins-Je nks and Cliff Custer demonstrated that Concorde deter mined an individual’s starting salary based on his or her verifia ble rele vant experience and that Hicks was pa id a lower

initial sala

ry than the fema le repr esenta tives who he claims wer e simil arly situated beca

use Concorde could verify only nine months o f Hicks’s prior experience , while it
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Hicks v . Concorde Career College verifie d betwee n five and ten y ear s of prior experience for the fema le repr esenta tives. There is no g enuine dispute as to any materia l fac t conce rning whether the differ ence in pay was due to a fac tor other than g ender

. See Bec k-W ilson , 441 F.3d at 365. Hicks nex t arg

ues t hat t he dis trict court erre d by g rantingsummary judgme nt to Concorde

on his c laim tha t Conc orde discriminated ag ainst him ba sed on his r ace in violation of Title VI I of the C ivil Rights Act of 1964. “[T] o prese nt a claim, either mix ed-motive or single -motive, under Title VI I , a plaintiff must de monstrate that he has suffe red an adver se employ ment action.” W

hite

v. Baxter Healthcare Corp. , 533 F.3d 381, 402 (6th Cir. 2008) (interna l quotation marks omitted). “An adverse employ

ment action is an action by the e m p loy er that constitutes a si g nificant chang e in employ

ment status, such as hiring , firing , failing to prom o t e, rea ssignment with signific antly differ ent responsibilities, or a decision causing a signific ant chang e in benef its.” Id. (interna l quotation marks o m itted). To avoid summary judgme nt, a plaintiff must “demonstra te that an illegitimate discriminatory animus fac tored into the defe ndant’s decisio n t o t ake the adver se employ ment action.” Id. at 401. Hicks failed to demonstrate that a g enuine issue of materia l fac t exis ted conce rning whether his rac e was a fac tor in Concorde’ s employ ment decisions. The undisputed evidenc e demonstrated that any differ ence betwee n Concorde’ s trea tment of Hicks a nd its treatment of Tommy Har rison, his Cauca sian compar ator, was based on differ ence s in their exp er ience , position, and production g oals. Fur

ther, Hicks failed to p re s en t evidenc e that Concorde improperly altere d his “start” require ments on a monthly evaluation form to understate his pe rfor mance . Hicks nex t arg

ues t hat the district court err ed by g ranting summary judgme nt to Concorde

on his claim t hat C oncorde reta liated aga inst h i m fo r fi ling a complaint with the EEOC by g iving
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Hicks v . Concorde Career College him a poor perf

ormanc e revie w and by writing him up for co m p l ai n i n g. To make a prima fac ie showing of reta liation, a plaintiff must demonstrate that he eng ag ed in a protec ted activity and that the defe ndant took an adver se employ ment action ag ainst h i m t h at was causa lly rela ted to the protec ted activity

. Ladd v. Grand Trunk W

. R.R. , 552 F.3d 495, 502 (6th Cir. 2009). I f the plaintiff establishes a prima fac ie case , the defe ndant must offe r a non-discriminatory rea son for the adver se employ ment action. Id. I f the defe ndant does so, the plaintiff must de monstrate that the proff ere d

rea son was mere prete x t. Id. Hicks failed to prese nt evidenc e cre ating a g enuine issue of materia l fac t conce rning whether Concorde’ s proff er ed reasons for its actions wer e mere prete x t. The undisputed evidenc e demonstrated that Hicks’s poor perf ormanc e revie w for 2007 and his writeup

wer e base d on his failure to mee t his production goa ls and his poor work e thic. Hicks nex t arg

ues t hat t he dis trict court erre d by g ranting summary judgme nt to Concorde

on his claim that Concorde cre ated a rac ially hostile work environment. The district court proper ly declined to consider the merits of this claim beca use Hicks failed to addre ss it in either his response to the summary judgme nt motion or his response to Concorde’ s reply brief. See Harper v. Vigilant Ins. Co. , 433 F.3d 521, 528 ( 7th Cir. 2005). Finally , Hicks argues that the district court err ed by failing to rule on his motion to strike an exhibi t showing that he had filed a prior discrimination lawsuit that had been dismiss ed. The district court’s failure to rule on the motion constituted, at m o s t , h ar m less err or beca use the exhibi t was irrele vant t o the claims at i ssue and the di strict court did not rely on it in adjudicating Concorde’ s summary judgme nt motion. Acc ording ly , we a ffirm the district c ourt’s judg ment.

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