NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0759n.06 No. 11-5040 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RAYMOND DA VI S, SR ., P laintif f-App ellant,

v. CI TY OF CL ARKSVI L L E, Defendan t-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE
O P I N I O N

Before: SILER and MOORE, Circuit Judges; VAN TATENHOVE, District Judge. *
KA REN NELSO N MOORE, Circuit Judge. When Ray mond Davis, a domestic-violence investiga tor for the City of Clarksville (“City ”), first sued his employ er in 2006 for rac ial discrimination in the workplac e, the City settled the case . Two y ear s later, Davis was terminated for alleg edly making false statements in an incident repor t. Davis ag ain sued the City raising claims of unlawful employ

ment discrimination and reta liation under fede ral and s tate law. This time the district court g rante d summary judgme nt to the City on all claims, and Davis now appea ls. For the following rea sons, we AF F IRM

. I. BACKG ROUND Davis, an Afric an Americ an male, worke d for the City of Cl a r k s ville Police Depa

rtment from 1993 until his termination in Marc h 2009. Fr om 2000 until the time of his te rmination, Davis was

T h e Ho n o rable Gre g ory F. Van Tatenhove , United States District J udg e for the Eastern * District of Ke ntucky , sitti ng by desig nation.No. 11-5040

Davis v. City of Clarksville
employ ed as a domestic-violence investi gat o r. On J anuar y 13, 2006, Davis sued the City of Clarksville alleg ing rac i al d i scrimination and a rac ially hostile work environment. Davis and the City settled in Marc h 2007, and Davis continued his employ ment with the City

. Alonzo Ansley was appointed as the interim Chief of Police on F ebrua ry 1, 2007, and was eventua lly appointed Chief of Police on September

25, 2007. R. 17-3 (Ansley Aff. at ¶ 2) (Pag e I D #94). Davis claims that since he settled his 2006 lawsuit, the rac ially hostile work environment has continued. Both on appea l and below he provides a litany of rac ial epithets and derog atory
comments overhe ard within the C larksville P o l i ce Depa rtment. Appellant Br. at 5-9; R. 27 (Pl.’s Opp. to Summ. J

. at 3-4) (Pag e I D #591-92). Davis does not dispute, howeve r, that these incidents

are the same ones that he identified in his initial lawsuit and that virtually all of them occur red befor e

or during 2006. Since Ansley beca me Chief, Davis identifies o n l y t wo i nstance s of offe nsive

rema rks at work that he claims went unpunished: a rac ist text mess age t h at ci rc u lated in the depar tment and a rac ially derog atory rema rk by Mike Parr, a member of the command staff. See Appellant B r. at 10-11; R. 27 (Pl.’s Opp. to Summ. J . at 5) (Pag e I D # 593). 1 Davis also claims that his work was overly scrutinized on three separ ate occa sions since the settlement: (1) in Fe bruar y 2008 he inquired why office rs did not arr est the primary ag g ressor in a

Davis cites solely to Chief Ansl ey ’s deposit ion as support for b o t h o f t hese incidents, but 1 Chief Ansley in his deposition g oes on to expl ain that he did not hea r about the te x t messag e until much later and never investiga ted it beca use it was never repor

ted internally and he had never seen evidenc e of it. R. 29-1 (Ansley Dep. at 39-42) (Pag e I D #636-39). Chief Ansley admits that Mike Parr was not disciplined, but explains that the comment was thoroug hly investiga ted and deter

mined to be a misconstrue d movie ref ere nce not a

rac ial slur. Id. at 51-52 (Pag e I D # 640-41). 2No. 11-5040

Davis v. City of Clarksville

domestic-violence repor

t and was told no action would be taken; (2) in J uly 2008 he waited an extra day to complete an investiga tion and was acc used of n o t d o i n g h i s job, and he was questioned
reg arding why he used an i n corr ect case number on his repor t; and (3) in J anuar

y 2009 he investiga ted a rape but ultimately deter mined one had not occur

red and was then questioned about his decision. R. 17-1 (Resps. to I nterrog s. at 2-3) ( Pag e I D #71-72). He admits, howeve r, t hat he

rec eived no discipline or adver se employ ment action as a result of any of these incidents, including when he provided an incorre ct case number. When Davis explained that h e wa s j u s t u s i ng the number g iven to him by a fellow off i ce r, h i s ex p lanation of the mistake was acc epted and no disciplinary

action wa s taken. R. 29 (Pl.’s Stmt . Fa cts at 3) ( Pag e I D #669). The main fac t dispute, howeve r, arises over an attempted traff ic stop on Dec ember 17, 2008. Davis wa s driving nor

thbound on Highw ay

41A i n an unmarked pol ice vehicle when he obser ved

a white Carava

n, driving at a h i gh ra te of speed, run the traff ic light at the intersec tion with Cunningha m L ane. R. 34-1 (Da vis Dep. at 62-66) (Pag e I D # 696-97). Davis attempted to conduct

a traff ic stop of the vehicle, including flashing his blue lights and at one point exit ing his vehicle and
appr o ac hing the van in an eff ort to g et the driver to stop. See R. 17-1 (Resps. to I nterrog s. at 17) (Pag e I D #86). When the vehicle instead ran throug h another light, Davis testified at his deposition that he g ot back in his vehicle, activate d his sirens, and radioe d the police dispatch. R. 34-1 (Da vis Dep. at 77-80) (Pag e I D #70 0 ). Di s p at ch i nstructed him to “bac k off” and notify the Oak Grove police depa

rtment, which Da

vis did. R. 17-1 (Resps. to I nterrog s. at 17) (Pag e I D #86).

3No. 11-5040

Davis v. City of Clarksville
During the incident, a civilian driver named L isa Hendr ickson called 911 at approximately the same time as Davis was on the phone with dispatch. Compare R. 17-11 (Da vis Call L og ) (Pag e I D #182) with i d

. (H en d ri ck s on Call L og ) (Pag e I D #183). I n the call, she indicates that an underc over office r had just tried to stop a vehicle at an intersec tion on For t Campbell Boule vard (anothe r name for Hig hway 41A) ne ar the milit ary

base a nd had pull ed a g un on the subject a t the light. R. 17-11 (He ndrickson Call L og ) (Pag e I D #183). She later identified the location as the light

near a Mapco Ex press and one of the gates to For t Campbell, which she ag ree d was J ack Miller Boule vard. R. 17-10 (Pre- Dec ision Hr’g Tr. at 147-48) (Pag e I D #176). Davis maintains that he was
not near J ac k Miller Boule vard during the incident and that this witness must have observe d a differ ent white Carava

n or a differ ent office r exit his vehicle and draw his wea pon. See R. 32 (Pl.’s Stmt . Fa cts at 6) ( Pag e I D #672) (“ The witness identified a n office r other tha

n Plaintiff.”). Davis prepa

red sever al incident repor

ts and arr est-wa

rra nt aff idavits rela ting to this incident.
I n these repor

ts, he expli citly states that “[a]t no time did I unholster my wea pon.” R. 17-11 (I nterna l Report) (Pag e I D #181). He also provides inconsistent acc ounts of wh en h e ex i ted his vehicle. Compare id. (“A t 41A/Quinn I exit ed my vehicle.”) with id. (I ncident Report) (Pag e I D #187) (“[W] hen vehicle rea ched 41A/Pkwy aff iant notified dispatcher s of situation and exit ed vehicle.” ). And the list of which traff ic lights the white van ran throug h also varie s from repor t to repor t. Compare id. (I

nterna l Report) (Pag e I D #181) (citing “Cunning ham,” “Quinn,” and “Parkw ay ”) and id. (I ncident Report) (Pag e I D #187) (same) with id. (12/17/08 Probable Cause Aff.) (Pag e I D #192) (citing “Cunning ham,” “Q uinn,” “Parkw ay ,” and “Ring g old”) and id. (12/18/08 Probable Cause

4No. 11-5040

Davis v. City of Clarksville
Aff.) (Pag e I D #198) (citing “Cunning ham,” “Quinn,” “Park w a y , ” “Ring g old,” and “L ady Marion”) ;

see also R. 34-1 (Da vis Dep. at 87) (Pag e I D #702) (testify ing that he lost visual si gh t of van “betwe en Ring g old Road and L ady Marion”)

. Davis ag ree s that any time an office r unsucce ssfully attempts to stop a vehicle, called a “nonpursuit,” the police investiga te the incident. R. 32 (Pl’s Stmt

. Fa cts at 8) (Pag e I D #674). Chief

2 Ansley testified that the incident first went to I nterna l Affa irs, which t h en sent the incident to the command staff for revie w. R. 17-4 (A n s l ey De p. at 26) (Pag e I D #105). Be cause the command 3 staff believed thi s was in fac t a pursuit and had some conce rns about t he dis cre pancie s in Davis’s
repor ts, Chief Ansley initiated an internal investiga tion. Id. at 27 (Pag e I D #106). He assig ned the

case to L ieutenant Ward, who in turn assig ned it to Serg eant Timothy Saunders in the Professional
I nteg rity Unit for investiga tion. Id. ; see also R. 17-12 (Saunder s Aff. at ¶ 3) (Pag e I D #201). Davis has not acc used Serg eant Saunders of any rac ial animus; in fac t, Saund er s i s o n e o f the Afric an Americ an office rs Davis claims was also subjected to rac ial hostili ties at work. Appellant Br

. at 9. Saunders called L isa Hendr ickson to question her about the events and questioned Davis about the i n consi stence s in his repor t. Saunders’ s finding s wer e turned over to L ieutenant Ash b y , wh o

I f the suspect flee s and the office r then pursues, it would be called a “pursuit.” See R. 29-1 2 (Ansley Dep. a t 25) (Pag e I D #628). Davis claims that the command staff consists of Bill Carney , Fr ank Gra y , Ron Knig ht, and 3 Mike Parr, all office rs that Chief Ansley knew previously demonstrated rac ial animosity

. R. 27 (Pl.’s Opp. to Summ. J

. at 2-3) (Pag e I D #590-91). Chief Ansley testified that the command sta ff a t the time consi s t ed o f Fr ank Gra y , Ron Knig ht, Mike Parr, Craig Gipson, and Rick Stalder. R. 17-4 (Ansley Dep. a t 26) (Pag e I D #105). 5No. 11-5040

Davis v. City of Clarksville

rec ommended that Davis be terminated for untruthfulness. See R. 17-10 (Pre- Dec ision Hr ’g Tr. at 3-4) ( Pag e I D #168). Chief Ansley then held a pre- decision hear ing, in which Davis was questioned reg arding the incident. Davis play ed the rec ording s of both his conver sation with dispatch and Serg eant Saunders’ s interview with L isa Hendr ickson. Hendr ickson was interviewe d by Serg eant Saunders

on Dec ember 29, 2008, and she stated that she could not rec all the exact intersec tion but that it was

near a g as station and either Ga t e One or Gate Three for For t Campbell. R. 17-10 (Pre- Dec ision Hr’g Tr. at 141-42) (Pag e I D #175). Saunders asked h er i f s he may be meant near the Walmart, which is located on Quin L ane just befor e 101st Airborne Parkwa y , and she was adama

nt that it was closer to the For

t than the Walmart. Id. at 142 (Pag e I D #175). He sug g ested may be near Gate One and the Mapco Ex press and she said “Ye s.” Id. When Serg eant Saunders later confirme d that this

was J ack Miller Boule vard, s h e aga in said “Ye s.” Id. at 145, 148. She testified that the white Carava n stopped at this light eve n though nobody was in f ront of it, but then an unde rcove r police office r stopped his car behind the van, “g ot out, drew his g un,” and then, when the light turned g ree n, the van took of

f, and the office r g ot ba ck in his car and followed. Id. at 148. The office r’s vehicle

was unmar

ked and ha d its li g hts on, but Hendrickson did not hea r sirens. Id. at 148-49. Davis’s conver sation with dispatch was also play ed, but Davis claims that the version he was g iven by the County (which he admits is administratively separ ate from the City ) was differ ent from the initial version play ed to him by Serg eant Saunders. Davis believes that the City doctore d the tape
to sug g est that Davis himself said he was near J ack Miller Boule vard, wh i ch wa s h i s location

6No. 11-5040

Davis v. City of Clarksville

ref lected in the call log. See R.17-11 (Da vis Call L og ) (Pag e I D #182) (“tra veling nb coming up on jack miller”); R. 17- 10 (Pre- Dec ision Hr’g Tr. at 129) (Pag e I D #172) (transc ription of rec ording : “He just went throug h another red li gh t at , uh, 41 and J ack Miller.”). Davis conce ded to Chief Ansley that it was his voice on the tape, id. at 130 (Page I D # 1 7 2 ), b u t m aintained that when he called he was at 101s t Airborne Parkwa y and not J ack Mill er Bo u l ev ar d

. R. 17-10 (Pre-Dec ision Hr’g Tr. at 129) (Pag e I D #172). Davis testified at his de position that another office r later radioe d him to ask his location, and only then did Davis state that he was at J ack Miller Boule vard. R. 34-1 (Da vis Dep. at 89) (Pag e I D #703). Davis explained to Chief Ansley that someone must have spliced his words and added sirens to the backg round to cre ate the altere d rec ording

. R. 17-10 (Pre- Dec ision Hr’g Tr. at 137-39) (Pag e I D #174). Davis admits, howeve r, that neither Chief Ansley nor Serg eant Saunders themselves had acc ess to the rec ording or asked any one to tamper with the rec ording

. R. 32 (Pl.’s Stmt

. Fa cts at 9) (Pag e I D #675). And Davis could offe r Chief Ansley no explanation for how t he recording was altered. At the end of t he hearing , Chief Ansl ey conclude d that Davis had in fac t been dishonest and te rminated him. R. 17-10 (Pre- Dec ision Hr’g at 182) (Pag e I D #180). The rec ord ref

lects at least three other office rs who wer e investiga ted for alleg ations of untruthfulness during Chief Ansley ’s tenure : J on Cummi ng s, J ohn Price, and J ames Moore. Offic er Cummi ng s alleg edly lied about leaving a confe renc e ear ly

. Chief Ansley decide d termination was
ap p ro p ri ate, and Offic er Cummi ng s voluntarily resig ned instead. See R. 32 (Pl.’s Stmt

. Fa cts at ¶¶ 38-39) (Pag e I D #678). Offic er Price alleg edly lied about the number of hours he worke d. Chief Ansley ag ain recommended termination and permitted Offic er P ri ce t o resig n voluntarily instead.

7No. 11-5040

Davis v. City of Clarksville

Id. at ¶ 40 (Pag e I D #678). Offic er Moore alleg edly lied about how a depar tment-issued cell phone had been damag ed. Offic er Moore was g iven a hear ing, during which Chief Ansley conclude d that Offic er Moore had simply misunderstood the initial question, and the char g e of untruthfulness was not sustained. Id. at ¶ 44 (Pag e I D #679-80). A ll three of the se off icer s are Cauca sian. 4
I n Marc h, 2009, Davis filed for and obtained a rig ht-to-sue letter from the EEOC challeng ing his termination on the basis of reta liation. He did not claim that the conduct was a continuing action

or identify any other form of discrimination other than reta liation. See R. 17-2 (EEOC Charg e) (Pag e I D #93). On J une 25, 2009, Davis sued the City raisin g v ar i o u s s t ate and fede ral employmentdiscrimination claims. The City moved for summary judgme nt on al l cl ai m s , which the district 5
court g rante d. Davis appea ls the g rant of summary judgme nt on only the claims rela ting to his 6 termination—unlawful discr imination and retaliation—under fede ral a nd state law.

Davis repe atedly states on appea l and below that “[w]hi t e o ff i cers have been found to be 4 untruthful in an internal investiga tion of misconduct and not terminated by Chie f A n s le y .” Appellant Br

. at 10. Howeve r, the only names he mentions, even on appea l, are “Moore and Bla ckman.” Id. at 18. As noted by the di strict court, there is no evidenc e in the re co rd at al l reg arding an Officer Bla ckman. See R. 46 (D. Ct. Order at 14) (Pag e I D #923). Specifica lly , Davis claimed a rac i al l y h o s t ile work environment and reta liation under 42 5 U.S.C. § 1981, Title VI I of the Civil Rights Act of 1 964, 42 U.S.C. § 2000e, and the Tenne ssee Human Rights Act, Tenn. Code Ann. §§ 4-21-101 and 4-21-401, as well as state-law claims of malicious hara ssment and outrag eous conduc t. Davis conce ded befor e the district court that he d i d not have valid claims of malicious 6 hara ssment and outrag eous conduct under state law or a valid claim under 42 U.S.C. § 1981. R. 27 (Pl.’s Opp. to Summ. J

. at 1 n.1) (Pag e I D #589). Davis also made no arg uments befor e the district court with respe ct to his hostile work environment claim or alleg ations of micro-mana g ing and coldshoulder trea tment. See R. 46 (D. Ct. Orde r at 7-9) (Pag e I D #916-18). Davis does not a ppeal the denial of a

ny of these c laims. 8No. 11-5040

Davis v. City of Clarksville

II. ST ANDAR D OF REVIEW We aff ord de novo revie w to a district court’s g rant of summary judgme nt. Singfield v. Akron
Metro. Hous. Auth. , 389 F.3d 555, 560 (6th Cir. 2004). Under Fe dera l Rule of Civi l P ro ce d ure 56(a) , the moving pa

rty is entitled to summ ary

judgme nt if there a

re no g enuine issues of ma terial fac t and the claims may be resolved as a matter of law. Fe d. R. Civ. P. 56(a)

. On summary judgme nt, we construe the evidenc e in the light most favor able to the non-moving party , here Davis. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). “Credibility deter minations, t h e weig hing of the evidenc e, and the draw ing of leg itimate infere nces from the fac ts are jury functions,
not those of a judge .” Id. Howeve r, once the moving party has put forth sufficie nt ev i d en ce in support of summary judgme nt, the non-moving party must come forwa rd with specific evidenc e to justify sending his claims to trial. Id. at 250.

III. MOTION TO TAKE JUDIC IAL NOTICE As a preliminary matter, we must resolve Davis’s motion for this court to take judicial notice of cer tain exhibi ts not filed in the district court. After failing to at t ac h certain exhibi ts to his opposition to the City ’s s ummary -judg ment motion, Davis unsuccessfully tried t o supplement the

rec ord befor e the district court and this court. See R. 56 (8/24/2011 D. Ct. Orde r) (deny ing motion
to supplement); Davis v. City of Clarksville , No. 11-5040 (6th Cir. Oct. 26, 2011) (orde r) (deny ing motion to supplement). Currently pending is a motion by Davis for this court to take judicial notice of the e x hibits. W e dec line to do so.

9No. 11-5040

Davis v. City of Clarksville

We may take judicial notice of “a fac t that is not subject to rea sonable dispute” either beca use such a fac t “ is g ener ally known” or “ca n be acc urate ly and rea dily deter mined from source s whose

acc urac y cannot rea sonably be questioned.” Fe d. R. Evid. 201(b). Davis asks us to take judicial notice of additional excerpts from the deposition of Chief Ansley as well as his complaint from the 2006 suit and numerous depositions and aff idavits taken from other litigation. See Appellee ’s Opp.
to J udicial Notice at 6-7 (summarizing orig ins of documents). Certainly , we could take judicial notice of the exis tence of these documents as evidenc e that a co m p l aint was in fac t filed or a deposition was in fac t taken. See United States v. Ferguson , 681 F.3d 826, 834 (6th Cir. 2012). But it is not the ex istence of these doc uments that Davis see ks for us to ac knowledg e; ra ther, he seeks
to rely on the substantive fac ts within those exhib i t s , m an y of which are disputed, to support his
appea l. His motion is there fore more proper ly viewed as y et another at t em p t to supplement the

rec ord and is denied for t he reasons set forth in our e arlier order

. See Molnar v. C

are House , 359
F. App’x 623, 625 (6th Cir. 2009) (unpublished opinion) (construing motion for judicial notice on
appea l as motion to suppl ement the r ecor d), cert. de nied , 131 S. Ct . 188 (2010).

IV. CLAIM OF UNLAWF UL RACIAL DISCRIMINA TION Title VI I p ro h i b i t s d iscriminating ag ainst an employ ee on the basis of hi s rac e. 42 U.S.C. § 2000e-2( a)( 1). Where, as here , the p l ai ntiff lacks direc t evidenc e of discriminatory intent, we employ the burden- shifting fra mework established in McD onnell Douglas Corp. v. Gree n , 411 U.S.

10No. 11-5040

Davis v. City of Clarksville

792 (1973), to evalua te his claim. The plaintiff has the initial burden of prese nting evidenc e from 7 which a jury could conclude that the plaintiff has made a prima fac ie s h o wi n g of rac ial discrimination. Risch v. Royal Oak Police Dep’ t , 581 F.3d 383, 391 (6th Cir. 2009). I f the plaintiff
meets t his burden, the employ er has the burden of produci n g ad m i ssible evidenc e of a legitimate, nondiscriminatory rea son for its actions. Id. The plaintiff must then identify evidenc e from which

a jury could conclude that the employ er’ s stated rea son is mere ly a prete x t for rac ial discrimination. Id. At all times the burden of persua sion remains with the plaintiff. Id.
To make out a prima fac ie case of discrimination under Title VI I , a plaintiff must show “(1) that he is a member of a protec ted g roup; (2) that he was subject to an adver se employ ment action; (3) that he was qualified for the position from which he was fired; and (4 ) t h at he was trea ted differ ently than employ ees outside of the protec ted class for the same or simil ar conduct.” Singfield , 389 F.3d at 561. The parties ag ree that Davis has satisfied the first three el em en t s

— Da v i s is an

Davis’s b ri ef discusses the differ ing leg al fra meworks for when a plaintiff has direc t 7 evidenc e or circ umstantial evidenc e. See Appellant Br

. at 14-16. Howeve r, Davis does not purport to have direc t evidenc e of rac i al an i m u s behind his termination, and he himself applies the McD onnell Douglas burden- shifting framework for circ umstantial evidenc e to his own claims. We also note that despite consistently using the single -motive fra mework on appea l and befor e the district c ourt, Davis occa sionally states that rac e was “a motivating fac tor” in his termination. See Appellant Br

. at 16; R. 27 (Pl.’s Opp. to Summ. J

. at 8-9) (Pag e I D #597-98); but see R. 1 (Compl. at ¶ 18) (Pag e I D #3) (“Plaintiff’s termination was . . . motivated by his rac e.”) ; Appellant Br

. at 25 (“D efe ndant’s rac e and prior prosec ution .

. . wer e the motivating fac tors in his trea tment.”). Title VI I mix ed-motive claims are revie wed using a more plaintiff-fr iendly standard on summary judgme nt, not the McD onnell Douglas fra mework. W hite v. Baxter Healthcare Corp. , 533 F.3d 381, 400-02 (6th Cir. 200 8 ), ce r t

. denied , 129 S. Ct. 2380 (2009). Howeve r, in light of Davis’s own application of McD onnell Douglas to his claims, his inconsistent lang uag e sug g esting either a single motive or a mix ed motive, and his failure to challeng e the district court’s trea tment of his claims as single -motive, we do not tre at his claim as one of mix ed motive under

42 U.S.C. § 2000e-2(m). 11No. 11-5040

Davis v. City of Clarksville

Afric an Americ an, his employ ment was terminated, and he was qualified for his position. The only issue is whether Davis has identified simil arl y s i t u at ed employ ees not of the protec ted class who

wer e tre ated diff

ere ntly

. To be simil arly situated in the disciplinary context, “th e p la in ti f f a n d h is p r o p o sed compar ator
must have eng ag ed in acts of compar able seriousness.” W right v. Murray Guard, Inc. , 455 F.3d 702, 710 (6th Cir. 2 0 0 6 ) (i nterna l quotation marks and emphasis omitted). We consider “whe ther the individuals have dealt with the same supervisor, have been subject to the same standards and have
eng ag ed in the same conduct without such differ entiating or mitigating circ u m s t an ce s that would distinguish their conduct or the employ er’ s trea tment of them for it.” Id. The plaintiff’s obliga tion is not to show an exact corr elation with another emp l o y ee , b u t instead that “the plaintiff and the employ ee with whom the plaintiff seeks to compar e himself or herse lf [are] si m i l ar in all of the relev ant aspec ts.” Ercegov ich v. Goody ear Tire & Rubber Co. , 154 F.3d 344, 352 (6th Cir. 1998) (interna l quotation marks omitted). The district court held that Davis had failed to identify a non-protec ted individual “who was investiga ted for u n t ru t h ful ness, was ultimately found untruthful, and subsequently reta ined his position.” R. 46 (D. Ct. Orde r at 15) (Pag e I D #924). We disagre e t h at t h es e we re the corr ect
p ar ameter s for identify ing a simil arly situated employ ee to Davis. Where, as here , the plain t i ff disputes that he eng ag ed in the conduct for which he was disc i p l i n ed, the principles of summary judgme nt counsel ag ainst considering the truth of the alleg ed misconduct in identify ing a simil arly situated individual. As we did in W right , a case wher e the p l ai n tiff also disputed the underly ing

12No. 11-5040

Davis v. City of Clarksville

fac ts, we must instead focus on the simil arities of the alleged misconduct. See W right , 455 F.3d at 710. We ultimately held that “Wrig ht and Br adley [were] not simil arly situated beca use their alleg ed
acts of misconduct are of a very differ ent nature , and there are leg itimate rea sons why [t he employ er] would” p u n i s h each di ffe rently if the allege d misconduct wer e found true. Id. ; see also Martin v. Toledo Cardiology Consultant s, Inc. , 548 F.3d 405, 411-12 (6th Cir. 2008) (holding improper to rely on defe ndant’s ver sion of fac ts when identify ing similarly situated employ ees)

. Her e, Moore and Davis wer e both acc used of comparable misconduct—dishonesty to a

s u p erior—and their conduct and statements wer e evalua ted by the exact same supervisor, Ch i ef Ansley

. We do not consider that the depar tment ultimately found Moore to be mere ly confuse d and Davis untruthful beca

use the validity of those finding s is what Davis disputes. The plaintiff’s burden of establishing a prima fac ie case “is not onerous.” Tex. Dep’ t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981). And we “may not consider the employ er’ s alleg ed nondiscriminatory rea son for taking an adver se employ

ment action when analy

zing the prima fac ie case ,” beca use doing so would deprive Davis of the opportunity of demonstrating that the employ er’ s rea son was mere ly prete x t. W exle r v. W hite’s Fine Furniture, Inc. , 317 F.3d 564, 574 (6th Cir. 2003) (en banc)

. Davis has met his burden of e stablishing a pr ima fac ie ca se bec ause he identified a white offic er, O ffice r Moore , who was also acc used of untruthfulness but w as not terminated following an investiga tion into his acts by Chief Ansley

. The burden there fore shifts to the City to offe r admissib le evidenc e of a leg itimate, nondiscriminatory rea son for terminating Davis’s employ ment. Clay v. United Parcel Serv. , 501 F.3d

13No. 11-5040

Davis v. City of Clarksville
695, 705-06 (6th Cir. 2007). The Ci ty has satis fi ed i t s b u rd en beca use i t has i dentified the City ’s policy ag ainst dishonesty , past instances of termination based on dishonesty , and a basis in the rec ord for its belief that Davis was dishonest: the inconsistent repor ts he filed and the ey ewitness testimony that conflicted with Davis’s version of events. The burden thus shifts back to Davis to offe r evidenc e suff

icient for a

jury to find that the employ er’ s rea son was pre text

. A plaintiff may demonstrate prete x t by showing “(1) that the proff ere d rea sons had no basis in fac t, (2) that the proff

ere d rea sons did not actua lly motivate the employ er’ s action, or (3) that they

wer e insuffic ient to motivate the employ er’ s action.” Chen v. Dow Chem. Co. , 580 F.3d 394, 400 (6 th Cir. 2009). To survive summary judgme nt, Davis “must produce sufficie nt evidenc e fr o m which a jury could rea sonably reje ct ” t h e City ’s explanation why it fired him. Id. Her e, Davis challeng es the fac tual basis underly ing his termination. He has testified under oath at his deposition that he was not dishonest; he did not draw a g un when pursuing the white van, and he was not at the

same intersec tion as the ey ewitness who saw an office r draw his wea po n . Although the City has

cer tainly prese nted ample evidenc e to counter Da v i s’s testimony —the independe nt ey ewitness

acc ount and the alleg ed rec ording of Davis putti n g h i m at J ack Miller Boule vard—w e will not question Davis’s cr edibility in review ing summar

y judgme nt. Anderson , 477 U.S. at 255.
Even when a plaintiff has demonstrated an issue of fac t reg arding the validity of the fac tual b asi s underly ing his termination, an employ er may still defe at an infere nce of prete x t if it can demonstrate that it held an “honest belief” in its rea son s fo r t aking the adver se action. Smith v. Chrysler Corp. , 155 F.3d 799, 807-08 (6th Cir. 1998). “When an employ er rea sonably and honestly

14No. 11-5040

Davis v. City of Clarksville

relies on particula

rized fac ts in making an employ ment decision, it is entitled to summary judgme nt

on prete x t even if its c onclusion is la ter shown to be mistaken, foolish, trivial, or basele ss.” Chen , 580 F.3d at 401 (interna l quotation marks omitted). The City ’s investiga tion need not be perf

ect so long as the decision was “a rea sonably informed and considere d” one. W right , 455 F.3d at 708. The employ er bear s the b u rd en o f identify ing the particula rized fac ts that it rea sonably relied upon in order to rebut the infe renc e of pr etext. Clay , 501 F.3d a t 714-15.
Her e, the City has offere d evidenc e that it conducte d a reasonable inves t i gation and relied

on particula

rized fac ts in terminating Davis for dishonesty

. The City appointed Timothy Saunders, an officer with no past history

of racial animus, to investiga te t he allegation of unt ruthfulness and interview Davis and the potential ey ewitness. Numerous reports written b y Davis hi mself, which he does not claim wer e doctore d, prese nt inconsistent information about the incident on Dec ember 17, 2008. There is a rec ording of Davis stating in his own voice that he was at a differ ent location. Chief Ansley conducte d a t wo -day pre- decision hear ing during which Davis was allowed to fully explain his version of the events and his rea sons for believing that the dispatch rec ord of his call was altere d. Chief Ansley also hear d the rec ording of Serg eant Saunders’ s call with L isa Hendr ickson, the third-par

ty witness, who testified that she saw an office r in an unmarke d vehicle attempt to pull

over a white van by exit ing his car with his wea pon draw n. Davis did not dispute attempting to pull

over a white van and at one point exit ing his car and approa ching the driver. Chief Ansley also had

acc ess to the call logs of both D avis and Hendr ickson sug g esting that the incidents wer e at or near

15No. 11-5040

Davis v. City of Clarksville

the same time. On the basis of this evidenc e, the City deter mined that Davis was untruthful about the eve nts on Dece mber 17, 2008, a nd terminated his employ ment. The City is not require d to be fac tually corr ect in its assessment of Davis’s behavior so long
as t he C i ty has an “honestly held belief in a nondis criminatory rea son supported by particula rized fac ts af t er a reasonably thoroug h investiga tion.” W right , 455 F.3d at 709 (holding employ er had honest belief based on thoroug hness of investiga tion). Although Davis has consistently maintained that he was never dishonest, he has n o t ch al l en ged the sufficie ncy of Saunders’ s or Ansley ’s investiga tion or the proce ss that he rec eived leading up to his termination. Fur thermore , Davis has “off ere d no evidenc e to indicate that [t he City ] made its decision on g rounds other than those offe red.” Id. at 7 0 9

. The City has adequately identified particula rized fac ts supporting the thoroug hness of its investiga tion and its honestly held belief that Davis was untruthful and not

mere ly mistaken.
Be cause we revie w summary judgme nt de novo, we may aff irm on any g round prese nted in the rec ord. City Mgmt. C o r p
. v. U.S. Chem. Co. , 43 F.3d 244, 251 (6th Cir. 1994). There fore , alth oug h we disag ree with the district court’s deter mination that Davis failed to establish a prima fac ie ca se of discr imination, we nonetheless a ffirm the g rant of summary judgme nt in f avor of the City on Davis’s claims of rac ial discrimination under T i t l e VI I

. His claims under the Tenne ssee Human Rights Act (“TH RA”) must there fore fail as well. Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc. , 173 F.3d 988, 993 (6th Cir. 1999) (holding THRA claims apply same fr amewor

k as Title VI I ).

16No. 11-5040

Davis v. City of Clarksville

V. CLAIM OF UNLAWF UL RETALIATI ON Title VI I and the Tenne ssee Human Rights Act also both prohibit reta liating ag ainst someone who complains about rac ial discrimination. 42 U.S.C. § 2000e-3; Tenn. Code Ann. § 4-21-301. To state a pr ima fac ie claim of r etaliation under Title VI I or the THRA, a pla intiff must show that (1) he eng ag ed in conduct protec ted by Title VI I ; (2) his protec ted conduct was known to the defe ndant; (3) the defe ndant there afte r took an adver se action ag ainst the plaintiff; and (4) a causa l connec tion linked the protec ted activity and the adver se action. Arendale v. City of Mem phis , 519 F.3d 587, 606 (6th Cir. 2008) (apply ing Title VI I fra mework for THR A cl ai m s). The parties conce de that the plaintiff has met his burden on the first three elements: Davis’s lawsuit was protec ted conduct, the defe ndant knew of the lawsuit, and the plaintiff was terminated afte r the filing of the lawsuit. The only issue on appea l is whether Davis demonstrated a materia l issue o f fac t reg arding a causa l

connec tion between D avis’s lawsuit and his termination.
We employ the same burden- shifting fra mework to reta liati o n claims as we do to employ ment-discrimination claims. Ladd v. Grand Trunk W

. R.R., Inc. , 552 F.3d 495, 502 (6th Cir. 2009). This means that even if Davis establishes a prima fac ie case of reta liation, he would still be require d to establish prete x t beca use the City has articula ted a leg itimate, nondiscriminatory rea son for his termination. As discussed above, the City has defe ated any infere nce of prete x t beca use the City has sufficie ntly demonstrated a rea sonably held belief based on particula rized fac ts that Davis had been untruthful. We there fore need not consider whether the district court proper ly conclude d that Da v i s h ad failed to make a prima fac ie showing on the element of causa tion. Summary

17No. 11-5040

Davis v. City of Clarksville
judgme nt is appropr iate on Davis’s reta liation claims under fede ral and state law as well. Chen , 580 F.3d a t 402. VI. CONCLUSION
F o r th e a f oreme ntioned rea sons, we AF F IRM the district court’s g rant of summary judg me n t to the defe ndant.

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