                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0559n.06

                                               No. 14-1162


                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                                FILED
VINCENT MENSAH,                                                )                         Aug 07, 2015
                                                               )                     DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                                   )
                                                               )
v.                                                             )
                                                                        ON APPEAL FROM THE
                                                               )
                                                                        UNITED STATES DISTRICT
MICHIGAN DEPARTMENT OF                                         )
                                                                        COURT FOR THE EASTERN
CORRECTIONS; PATRICIA CARUSO;                                  )
                                                                        DISTRICT OF MICHIGAN
RANDALL HAAS; HUGH WOLFENBARGER,                               )
                                                               )
        Defendants-Appellees.                                  )


BEFORE:         GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge.*

        JULIA SMITH GIBBONS, Circuit Judge. Vincent Mensah brought suit against his

former employer, the Michigan Department of Corrections (“MDOC”), its Director Patricia

Caruso, the Warden of Macomb Correctional Facility (“MCF”) Hugh Wolfenbarger, and the

MCF Deputy Warden Randall Haas, alleging discrimination on the basis of his national origin,

retaliation for engaging in a protected activity, and hostile work environment. He now appeals

the district court’s grant of summary judgment in favor of the defendants on each claim. For the

reasons stated below, we affirm.

                                                      I.

        Vincent Mensah was born in Ghana. From 1997 until he resigned in 2009, he worked as

a Business Manager for MCF.               During the relevant time period, Mensah reported to


        *
           The Honorable Pamela L. Reeves, United States District Judge for the Eastern District of Tennessee,
sitting by designation.

                                                      1
Wolfenbarger. From 2003 to 2009, Mensah filed numerous internal grievances and complaints

with the Equal Employment Opportunity Commission (“EEOC”) and Michigan Department of

Civil Rights against defendants alleging retaliation, hostile work environment, and

discrimination based on national origin.      On June 29, 2009, Mensah filed a Charge of

Discrimination with the EEOC against the defendants alleging the same. On May 19, 2010, the

EEOC issued Mensah a right-to sue-letter on this Charge.

       On August 13, 2010, Mensah filed a complaint in the district court alleging eight

different causes of action against the Department, its Director Patricia Caruso, Warden

Wolfenbarger, and Deputy Warden Haas. The defendants filed a motion to dismiss and the trial

court granted defendants’ motion in part. Defendant Caruso was completely dismissed from the

lawsuit and the only claims remaining were (1) Title VII claims against MDOC; (2) § 1981

claims against Wolfenbarger and Haas; (3) § 1983 equal protection claims against Wolfenbarger

and Haas; and (4) Elliot-Larson Civil Rights Act (“ELCRA”) claims against Wolfenbarger and

Haas. The remaining defendants appealed part of the trial court’s order, and on February 4,

2013, the Sixth Circuit dismissed that appeal in Mensah v. Michigan Dep’t of Corr., 513 F.

App’x 537 (6th Cir. 2013). Following discovery, the defendants filed a motion for summary

judgment seeking dismissal of Mensah’s remaining claims.         The district court granted the

defendants’ motion on all claims. Mensah timely appeals that decision.

                                               II.

       A district court’s order granting summary judgment is reviewed de novo. Wright v.

Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). The district court’s grant of summary

judgment will be affirmed “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that the movant is



                                               2
entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). If the nonmovant

presents evidence that raises a genuine issue of material fact when viewed in the light most

favorable to the nonmoving party, summary judgment is inappropriate. Wright, 455 F.3d at 706.


                                                   A.

        Mensah claims he was discriminated against during his employment at MCF based on his

race and/or national origin because (1) he was denied a request for annual leave; (2) he had to

notify Wolfenbarger, his supervisor, when he arrived to work in the morning and when he left

MCF; (3) he had to carry his ID badge on him while working; (4) Wolfenbarger told other

employees to watch Mensah’s whereabouts; (5) he was not allowed to work flex time; (6) he had

to participate in a drill that involved checking vehicles outside during winter; (7) he had to filter

any instructions he had for an employee under his supervision through Wolfenbarger; (8) he was

given an employee performance evaluation that (a) gave him a “needs improvement” rating,

(b) obliged him to get permission to leave the facility, and (c) prohibited him from emailing

Wolfenbarger; and (9) he was disciplined with a five-day suspension, which was subsequently

reduced to a written reprimand, for being absent during a mobilization drill. Mensah brings all

of these complaints against Wolfenbarger and the MDOC; Mensah only includes Haas in his

complaint concerning the winter security drill.

        Under Title VII and the ELCRA,1 Mensah may prove race and/or national origin

discrimination with circumstantial evidence under the McDonnell-Douglas burden-shifting

framework. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Under that framework,

Mensah must first make out a prima facie case of race or national origin discrimination by


1
  “Cases brought pursuant to the ELCRA are analyzed under the same evidentiary framework used in Title VII
cases.” Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004).


                                                    3
demonstrating that he (i) was a member of a protected class, (ii) was qualified for the position,

(iii) suffered an adverse employment action, and was (iv) “treated differently than similarly

situated non-protected employees.” Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.

2001). Defendants argue that Mensah cannot fulfill the last two elements; we agree.

        “An adverse employment action in the context of a Title VII discrimination claim is a

materially adverse change in the terms or conditions of employment because of the employer’s

actions.” Kuhn v. Washtenaw Cnty., 709 F.3d 612, 625 (6th Cir. 2013) (internal quotation marks

omitted).     Termination, decrease in wage or salary, change in title, diminished material

responsibilities, or a material loss of benefits are all examples of a materially adverse change. Id.

As the district court observed, most of the actions Mensah complains of do not amount to

adverse employment actions. Only the suspension can even arguably be considered a truly

adverse employment action. 2 Assuming without deciding that his suspension, later reduced to a

reprimand, constitutes an adverse employment action, Mensah has not pointed to a similarly

situated employee.

        Before analyzing the final element, we discuss the circumstances leading to Mensah’s

five-day suspension. In July of 2007, MDOC held a mobilization drill at MCF. During this

“emergency preparedness” exercise, the facility was locked down and all individuals were

accounted for. Mensah could not be located despite punching in for his shift earlier that day.

Because of his absence and his alleged failure to cooperate with an investigator regarding the

incident, Mensah received a five-day suspension, which was subsequently reduced to a



        2
            The district court suggests that a performance review plan can constitute an adverse employment action.
While true, this court has made clear that in general a negative performance review unaccompanied by a change of
position or a loss of pay is not an adverse employment action. See White v. Baxter Healthcare Corp., 533 F.3d 381,
402 (6th Cir. 2008). Therefore, we will not consider Mensah’s negative performance evaluation in analyzing his
discrimination claim.

                                                        4
reprimand. However, Joe Wade, another employee also marked absent during the drill, was

never disciplined for his absence.

       Mensah asserts that the district court applied an overly narrow construction of the

similarly situated standard. Specifically, he contends that the district court improperly applied

the standard in Mitchell v. Toledo, 964 F.2d 577, 583 (6th Cir. 1992), by too narrowly construing

its requirement that the employee to whom the plaintiff compares his treatment must be

similarly-situated “in all respects.”    Undoubtedly, this circuit has determined that “the

appropriate test is to look at those factors relevant to the factual context, as opposed to a

requirement that a plaintiff demonstrate similarity in all respects.” Jackson v. FedEx Corporate

Servs., Inc., 518 F.3d 388, 394 (6th Cir. 2008) (citing Ercegovich v. Goodyear Tire and Rubber

Co., 154 F.3d 344, 352 (6th Cir. 1998)). “Courts should not assume . . . that the specific factors

discussed in Mitchell are relevant factors in cases arising under different circumstances,”

Jackson, 518 F.3d at 394 (quoting Ercegovich, 154 F.3d at 352), but should make “an

individualized determination of which factors are relevant based on the factual context of the

case.” Lynch v. ITT Educational Services, Inc., 571 F. App’x 440, 444 (6th Cir. 2014).

       Here, Mensah argues that Wade, an American-born black male, is similarly situated for

purposes of his discrimination claim. Mensah acknowledges that Wade held a different job title

with fewer duties and responsibilities, and also concedes that, unlike Mensah, Wade did not

report to the Warden. However, Mensah contends that the relevant factors here are that Wade

(1) was born in America; (2) was also offsite when the drill was called; and (3) unlike Mensah,

received no discipline.

       Mensah fails to address Wolfenbarger’s testimony that Wade received a counseling

memo as opposed to discipline because he admitted that he was off grounds during the exercise



                                                5
and fully cooperated in the investigation of the matter, whereas Mensah flatly refused to answer

questions or cooperate with the investigation. According to Wolfenbarger, this distinguished the

two infractions and made it appropriate to discipline Mensah but not Wade.

       Here, neither Wade’s position nor his relevant conduct was similar. Mensah was a high

level employee who reported directly to the warden, whereas Wade was not. And Mensah was

uncooperative in the investigation that followed the infraction, whereas Wade fully cooperated.

Given the clear differences in both job responsibilities and conduct between the two employees,

we cannot conclude that Wade is a legitimate comparator for Mensah though both were absent

during the exercise. Because Mensah has failed to present a similarly-situated employee or show

any other meaningful evidence supporting an inference of discrimination, he cannot establish his

prima facie case of employment discrimination.

                                              B.

       Mensah next argues that the district court incorrectly granted summary judgment in favor

of the defendants on his hostile-work environment claim. To establish a prima facie case of a

hostile work environment based on race and/or national origin, Mensah must demonstrate that:

“(1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the

harassment was based on plaintiff’s protected status; (4) the harassment was sufficiently severe

or pervasive to affect a term, condition, or privilege of employment; and (5) the employer knew

or should have known about the harassing conduct but failed to take corrective or preventative

actions.” Fullen v. City of Columbus, 514 F. App’x 601, 606–07 (6th Cir. 2013) cert. denied sub

nom. Arnold v. City of Columbus, Ohio, 134 S. Ct. 532 (2013). “Conduct that is not severe or

pervasive enough to create an objectively hostile or abusive work environment—an environment

that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.” Harris



                                                 6
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Factors to be considered include “the frequency of

the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a

mere offensive utterance; and whether it reasonably interferes with an employee’s work

performance.” Id. at 23. “A discriminatorily abusive work environment . . . can and often will

detract from employees’ job performance.” Id. at 21.

       Mensah alleges that the same actions that serve as the basis for his discrimination claim

support his hostile work environment claim. The panel must ask whether this conduct, when

taken in totality, is “sufficiently severe or pervasive to alter the conditions of [Mensah’s]

employment and create an abusive working environment.”            Williams v. CSX Transp. Co.,

643 F.3d 502, 512 (6th Cir. 2011). Like the district court, we find Mensah has failed to muster

facts from which a reasonable jury could conclude that, based on the totality of the

circumstances, he was subjected to a hostile work environment. Most of the conduct on which

Mensah relies, except possibly the suspension and the poor review, amounted to mere

inconveniences. The record suggests the existence of an interpersonal conflict between Mensah

and Wolfenbarger, but Mensah has failed to show that Wolfenbarger’s behavior was connected

to or motivated by national origin and/or racial animus. Notably, Mensah cannot point to any

explicit references to race or national origin. As a result, Mensah cannot demonstrate the third

and fourth element of a prima facie case of a hostile work environment.

                                                C.

       Finally, Mensah claims, rather perfunctorily, that Wolfenbarger’s interference with the

administrative processing of the charges amounted to “severe or pervasive retaliatory harassment




                                                7
by a supervisor.”3 (Appellant’s Br. 30) (quoting Hunter v. Sec’y of U.S. Army, 565 F.3d 986,

995 (6th Cir. 2009)).

         To establish a prima facie case of retaliation, Mensah must show that (1) he engaged in

protected activity; (2) the defendant knew of the protected activity; (3) “defendant thereafter took

adverse employment action against the plaintiff, or the plaintiff was subjected to severe or

pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between

the protected activity and the adverse employment action or harassment.” Hunter, 585 F.3d at

996 (internal quotation marks omitted). Mensah must be able to show but-for causation, i.e.,

“proof that the unlawful retaliation would not have occurred in the absence of the alleged

wrongful action or actions of the employer.” Univ. of Texas S.W. Med. Ctr. v. Nassar, 133 S. Ct.

2517, 2533 (2013).

         Here, because Mensah filed numerous internal EEO charges of which Wolfenbarger was

aware, the first and second elements of the prima facie case are easily satisfied. With regards to

the third prong—whether there was an adverse employment action—Mensah alleges that it is

satisfied because Wolfenbarger prevented Mensah’s                           charges     from being processed

administratively. But Mensah has not cited any evidence in the record that suggests his access to

internal grievance procedures was limited or that his complaints were inappropriately processed.

As such, this court finds that Mensah was not subjected to an adverse employment action.




         3
           The district court order points out Mensah’s other allegations of retaliation: “[Mensah] says Wofenbarger
retaliated against him while he worked at MCF by: (1) denying his request for annual leave in 2005; (2) condoning
and participating in the 2007 mobilization drill at MCF that resulted in his discipline; (3) initiating an investigation
against him in January 2008; (4) issuing the ‘needs improvement’ employee performance evaluation; and (5) writing
a memo to him and the Regional Prison Administration saying that [Mensah] should not have told other employees
about the reduction in force.” We could find no mention of these allegations in his response to the motion for
summary judgment, nor does Mensah mention these alleged instances of retaliation in his appellate brief.
Consequently, we will not address them here.


                                                           8
       Alternatively, Mensah contends that the third element is also established by

Wolfenbarger’s severe or retaliatory harassment because of the “pervasive restrictions” placed

on Mensah, and Wolfenbarger’s “refusal[] to extend [Mensah] . . . professional consideration or

courtesy.” Unfortunately, however, he fails to point to anything in the record that might support

severe and retaliatory harassment, and our court will not “mine a summary judgment record

searching for nuggets of factual disputes to gild a party’s argument.” Gilbert v. Des Moines Area

Cmty. Coll., 495 F.3d 906, 915 (8th Cir. 2006). Consequently, because Mensah cannot prove the

third element his prima facie case for retaliation must fail.

                                                 III.

       For the foregoing reasons, the district court’s grant of summary judgment is affirmed.




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