                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0062n.06
                            Filed: January 23, 2006

                                            No. 04-6008

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


KEVIN GOLDEN,                          )
                                       )
      Plaintiff-Appellant,             )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE WESTERN
                                       )                  DISTRICT OF TENNESSEE
TOWN OF COLLIERVILLE ET AL.,           )
                                       )                          OPINION
      Defendants-Appellees.            )
_______________________________________)


Before: MOORE and SUTTON, Circuit Judges, and BUNNING,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Kevin Golden (“Golden”)

appeals from the district court’s grant of summary judgment to the defendants in a case raising

procedural due process and equal protection claims pursuant to 42 U.S.C. § 1983 as well as state

civil-conspiracy and other claims.1 Golden, who is white, claims that he was offered but then denied

a promotion to the position of fire lieutenant because of his race. William Boone (“Boone”), a

firefighter who is black, was promoted to the lieutenant position instead of appellant. The appellees




       *
       The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
       1
         Golden initially also brought Title VII, substantive due process, defamation, and intentional
infliction of emotional distress claims, but did not contest the defendants’ motion for summary
judgment on these claims.
argue that Boone was promoted because he ranked above Golden in the testing and interview

process. We AFFIRM the district court’s judgment in favor of defendants.

                                       I. BACKGROUND

       The following facts are undisputed. In December 2000, the Town of Collierville approved

the opening of an additional firehouse, which created three additional fire lieutenant positions to

staff the station. Applicants meeting the requirements and submitting their applications by the

deadline then submitted to a four-part test developed by a private testing company and also

interviewed with appellee Richard Arwood (“Arwood”), who at the time was the Assistant Fire

Chief. Golden, Boone, and eight other firefighters applied for the positions. Of these ten applicants,

two including Boone were black, and eight including Golden were white. After the testing and

interview process was complete, Boone was ranked third and Golden was ranked fourth. In an

October 2001 memo, Arwood advised the lieutenant candidates of their scores relative to the other

candidates.

       In late November 2001, appellee Fire Chief Dennis Rutledge (“Rutledge”) met with Golden

and told him that even though he had finished fourth in the testing and interview process behind

Boone, it was Rutledge’s intention to recommend Golden for a promotion to lieutenant over Boone.

Golden contends that in this conversation Rutledge unequivocally told him that Rutledge was

promoting Golden to the third lieutenant position, effective the following month. Golden alleges

that Rutledge told him that Rutledge did not think Boone was ready for promotion. Rutledge claims

that at that time, due to the closeness of the scores of Boone and Golden, it was Rutledge’s desire

to promote Golden over Boone even though Golden was ranked fourth, because Rutledge believed

that Golden had more experience “riding out of rank” as a lieutenant than did Boone.


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       Word of Rutledge’s conversation with Golden spread within the fire department. Boone,

who knew from Arwood’s memo that he ranked third ahead of Golden, was upset by the rumors that

Golden would be promoted over him, and so Boone filed a grievance with the town administrator,

appellee James Lewellen (“Lewellen”). After listening to Boone’s concerns, Lewellen contacted

Rutledge and advised Rutledge that pursuant to Collierville Ordinance Section 12.07, when a

grievance is filed, the results of the final promotion process “shall be deferred pending resolution

of the grievance.” Joint Appendix (“J.A”) at 113 (Lewellen Aff. at ¶¶ 19-21). Rutledge told

Lewellen that experience riding out of rank was the factor that led him to prefer Golden over Boone.

Lewellen became concerned, because experience riding out of rank had not been listed as a factor

to be considered in the May 2001 memo outlining the promotion process, and so Lewellen sought

the advice of a town attorney, who advised him that it would not be appropriate to base a promotion

on a factor that was not disclosed to the candidates. Lewellen advised Rutledge of the attorney’s

recommendation, and Rutledge then advised Lewellen that Rutledge would recommend the top three

ranked lieutenant candidates, which included Boone but not Golden, for the promotion. Lewellen

approved the promotion of those three firefighters on December 12, 2001, and by memo dated

December 14, 2001, Rutledge advised all fire department personnel that the three would be

promoted.

       On December 17, 2001, Golden filed his own grievance with Lewellen to stop the promotion

of Boone, alleging irregularities in the promotion process and claiming that Rutledge had already

promoted Golden to the lieutenant position. Although Golden did not mention Boone by name, he




                                                 3
hinted that Boone was not qualified for the promotion.2 In that grievance, Golden did not allege that

the decision to promote Boone was based on race. Again abiding by the town’s ordinance, Lewellen

advised Rutledge to put the promotions on hold pending a resolution of Golden’s grievance.

Lewellen investigated Golden’s grievance and met with several individuals in the fire department,

including those suggested by Golden. During this time, Lewellen and Rutledge also reexamined the

fairness of the promotion process. They discovered several irregularities in how the process had

proceeded. Lewellen discovered that although the May memo to potential applicants outlining the

process stated that a deduction for disciplinary action within the past two years could be made, it did

not allow for consideration of the nature or severity of any disciplinary action. Rutledge also

reexamined the score sheets and discovered several mathematical errors. For instance, Arwood had

shown a zero for disciplinary-point deductions for Boone despite the fact that Boone’s personnel file

contained disciplinary actions on several occasions for late arrival at work. Rutledge also

discovered that Golden’s supervisor had recommended that Golden be suspended in May 2001, but

that, after the promotion process had been announced, Arwood had rescinded this suspension so that

this action would not harm Golden’s chances in the promotion process.

       Rutledge told Lewellen of these irregularities regarding disciplinary actions as well as

Rutledge’s concern that it may appear unfair and subjective. Unlike Golden, Boone and another

firefighter had not had their disciplinary actions rescinded by Arwood to increase their chances of




       2
        The parties now agree that both Golden and Boone possessed the minimum qualifications
necessary for the position of lieutenant at the time the promotions were announced in December of
2001. J.A. at 65-66 (Golden Dep. at 133-34); J.A. at 98 (Rutledge Aff. at ¶ 24).

                                                  4
obtaining the promotion.3 Given the inconsistencies regarding the treatment of disciplinary actions,

Rutledge decided that this factor should not be included, and so he recommended removing

discipline as a factor in the process for all lieutenant candidates. Lewellen agreed. When the testing

and interview scores were recalculated without discipline, Boone remained in the top three, with

Golden ranked fourth, only three-tenths of a point behind Boone. In a letter dated January 30, 2002,

Lewellen advised Golden that he was denying Golden’s grievance and explained the reasons for the

decision. Lewellen then approved the promotion of the top three candidates to lieutenant and

advised fire department personnel of this final decision in a February 11, 2002 memo.

       Golden filed his complaint in this action on December 2, 2002, naming as defendants the

Town of Collierville and James Lewellen, Dennis Rutledge, and Richard Arwood, in their official

and individual capacities. Defendants filed their answer, and discovery ensued. After the discovery

deadline passed in early 2004, defendants filed a motion for summary judgment on all claims. By

order entered on May 27, 2004, the district court granted defendants’ motion, dismissing the two

federal claims and declining to exercise supplemental jurisdiction over the remaining state civil-

conspiracy claim. Golden filed a motion to reconsider, but the district court denied the motion.

Golden filed a timely notice of appeal.




       3
         If discipline was considered, Boone and the other firefighter, who is white, would have
received deductions of 1.7 points for running late, with no consideration of the lack of severity for
these offenses nor of the fact that they had already been penalized for the offenses in the form of
time off without pay and ineligibility for a pay raise for the year in which the suspension had taken
place.

                                                  5
                                           II. ANALYSIS

A. Standard of Review

        We review the district court’s grant of summary judgment de novo, using the same standard

under Federal Rule of Civil Procedure 56(c) used by the district court. Williams v. Mehra, 186 F.3d

685, 689 (6th Cir. 1999) (en banc). “The Court should believe the evidence presented by the

nonmovant, and draw all justifiable inferences in [their] favor.” Cotter v. Ajilon Servs., Inc., 287

F.3d 593, 597 (6th Cir. 2002) (citing Plant v. Morton Int’l, Inc., 212 F.3d 929, 933-34 (6th Cir.

2000)). Summary judgment is proper when an opposing party has had adequate time for discovery

and yet “fails to make a showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). We review a district court’s dismissal of pendent state law claims for

abuse of discretion. DePiero v. City of Macedonia, 180 F.3d 770, 790 (6th Cir. 1999).

B. Discussion

        1. Procedural Due Process Claim

        Golden argues that he had a property interest in a promotion to lieutenant, and that

Collierville’s decision to promote Boone over him violated the Due Process Clause of the Fourteenth

Amendment. In order to establish a procedural due process claim in a § 1983 action, Golden must

establish that he: (1) had a life, liberty, or property interest protected by the Due Process Clause;

(2) that he was deprived of his protected interest within the meaning of the Due Process Clause; and

(3) that the state did not afford him adequate procedural rights prior to depriving him of his protected

interest. Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999). The district court assumed arguendo

that Golden could establish a property interest, but held that he failed at the third element because


                                                   6
he was unable to show the inadequacy of state-law remedies. Because we hold that Golden is unable

to establish the first element by identifying a protected property interest, we decline to address the

second and third elements.

       Golden claims that he has a constitutionally protected property interest in the promotion to

lieutenant. Citing Woolsey v. Hunt, 932 F.2d 555, 562 (6th Cir. 1991), Golden argues that his

constitutionally protected property interest in a promotion was created by his November 2001

conversation with Rutledge, in which Golden claims Rutledge actually promoted him to lieutenant,

effective the following month. Golden claims that this conversation created an “implied contract

or mutually explicit understanding” sufficient to create a property interest in the promotion

deserving of Fourteenth Amendment protection. Id. “To have a property interest in a benefit, a

person clearly must have more than an abstract need or desire for it. He must have more than a

unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of

Regents v. Roth, 408 U.S. 564, 577 (1972). We have held that “[i]f an official has unconstrained

discretion to deny the benefit, a prospective recipient of that benefit can establish no more than a

‘unilateral expectation’ to it.” Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409-410 (6th Cir.

2002). Thus Golden “can have no legitimate claim of entitlement to a discretionary decision.”

Richardson v. Township of Brady, 218 F.3d 508, 517 (6th Cir. 2000). In order to assert a property

interest in receiving a promotion, Golden “must point to some policy, law, or mutually explicit

understanding that both confers the benefit and limits the discretion of the [Town] to rescind the

benefit.” Med. Corp., 296 F.3d at 410 (emphasis added).

       Golden is unable to meet this burden. For even if we were persuaded that his conversation

with Rutledge effectively conferred the benefit of the promotion, Golden has not provided any


                                                  7
evidence that the terms of that conversation limited the defendants’ discretion to rescind the

promotion. Id. Golden admits that even when the department’s decision to promote the first and

second-ranked lieutenant candidates was made public within the department via email, that email

stated that the promotions were “proposed” and not final. J.A. at 329 (Golden Dep. at 94). Any

suggestion that a promotion discussed during Golden’s private conversation with Rutledge would

be final and unalterable when promotions publicly circulated in an announcement are merely

proposed is nonsensical. Furthermore, the defendants’ grievance procedure makes clear that the

department retains the discretion to place on hold and ultimately deny a promotion after it is

proposed. It is undisputed that the filing of a grievance procedure under Collierville Ordinance

§ 12.07 stays any final promotion; Golden himself relied upon this stay procedure when filing his

grievance after the decision to promote Boone was announced. The defendants’ discretion to rescind

a proposed promotion is not limited to the extent that Med Corp requires in order for a property

interest to be created. Golden has not identified a cognizable property interest, and therefore the

district court properly dismissed his procedural due process claim.

       2. Equal Protection Claim

       Golden also argues that defendants’ failure to promote him violated the Equal Protection

Clause of the Fourteenth Amendment. We analyze § 1983 equal protection claims under the

framework governing Title VII discrimination claims. Sutherland v. Mich. Dep’t of Treasury, 344

F.3d 603, 614 (6th Cir. 2003). The district court properly analyzed this case as a failure-to-promote

case. In a reverse-discrimination, failure-to-promote case, this court has held that in order to state

a prima facie case, a plaintiff must demonstrate: (1) “background circumstances [to] support the

suspicion that the defendant is that unusual employer who discriminates against the majority”; (2)


                                                  8
“that he applied and was qualified for a promotion”; (3) “that he was considered for and denied the

promotion”; and (4) “that the defendant treated differently employees who were similarly situated

but were not members of the protected class.” Sutherland, 344 F.3d at 614; see also Zambetti v.

Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir. 2002). The district court granted summary

judgment on this claim because that appellant could not demonstrate that the Collierville fire

department is one of the unusual employers that discriminates against the majority.

       The undisputed facts show that Golden has not been able to meet this first element. Golden

has not provided any evidence of background circumstances to support his assertion that defendants

discriminate against white employees. The entire upper management of the Collierville fire

department is white. Of the fifteen fire lieutenants, only two (including Boone) are black. Of the

fifteen drivers, only two are black. Further, it is undisputed that Collierville does not have any type

of affirmative action plan. Additionally, the record is rich with Golden’s admissions that he does

not believe that the decision to promote Boone instead of him was motivated by race. Golden

agreed that he had no reason to believe that Arwood did anything in the promotional process to

discriminate against white employees. He admitted that he does not have any evidence to suggest

that administrator Lewellen wanted to promote Boone because he is black. Golden further admitted

that he does not believe that Lewellen, Rutledge, or Arwood intended to discriminate against him.

When asked whether he had any reason to believe that appellees discussed taking any action against

him because he is white, he stated, “[N]o, I wouldn’t believe that at all.” J.A. at 88 (Golden Dep.

at 236). Golden stated that he doesn’t “think black or white had anything to do with” promoting

Boone. J.A. at 88 (Golden Dep. at 236). Instead, Golden claims that he believes defendants

promoted Boone over him because they perceived Boone as litigious, and defendants were afraid


                                                  9
Boone “would make a racial issue” out of not being promoted. J.A. at 88-89 (Golden Dep. at 236-

37).

       Contrary to Golden’s assertion that defendants were engaging in reverse discrimination, the

district court concluded that the undisputed facts, including Arwood’s rescission of Golden’s

suspension and Rutledge’s desire to promote Golden over the higher-ranked Boone, indicates that

defendants initially intended to discriminate against the minority rather than the majority. The

record suggests that defendants became aware of this discriminatory inclination and decided to

rectify the situation by promoting the three highest ranking candidates, regardless of race. We agree

with the district court’s conclusion that defendants’ desire to avoid discrimination against minorities

is insufficient to support an inference that they discriminate against the majority. Because Golden

has not offered any evidence of “background circumstances” that suggest defendants discriminate

against the majority, he has not established a prima facie case of reverse discrimination, and the

district court did not err in dismissing his equal protection claim.

       Golden’s other equal protection theory, that he was differentially treated as a “class of one”

without a rational basis, also fails. Appellant Br. at 24 (citing Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000)). The fact that Boone was ranked above Golden after the testing and

interviews is a rational basis for promoting Boone.

       3. State Civil-Conspiracy Claim

       Finally, Golden appeals the district court’s dismissal without prejudice of his pendent state

civil-conspiracy claim due to the lack of a viable federal claim. District courts have the discretion

to dismiss pendent state-law claims where all federal claims have been dismissed. 28 U.S.C.

§ 1367(c)(3). Because we are not remanding any of plaintiff’s constitutional claims for further


                                                  10
consideration, there is “no utility in sending back to the district court a single issue that turns upon

state law and which would be better resolved by the courts” of the state in question. DePiero v.

Macedonia, 180 F.3d 770, 790 (6th Cir. 1999). The district court did not abuse its discretion in

declining to hear Golden’s state civil-conspiracy claim.

                                        III. CONCLUSION

        For the reasons explained above, we AFFIRM the district court’s judgment in favor of the

defendants with regards to Golden’s procedural due process and equal protection claims, and

AFFIRM the dismissal of his state civil-conspiracy claim without prejudice.




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