                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0809n.06
                                                                                         FILED
                                            No. 10-5275                             Dec 05, 2011
                           UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

JOHN K. HICKS,                                        )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )     ON APPEAL FROM THE
v.                                                    )     UNITED STATES DISTRICT
                                                      )     COURT FOR THE WESTERN
CONCORDE CAREER COLLEGE,                              )     DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellee.                            )
                                                      )




       BEFORE: SILER and KETHLEDGE, Circuit Judges; and ADAMS, District Judge.*


       PER CURIAM. John K. Hicks appeals the district court’s granting summary judgment to

Concorde Career College (Concorde). We affirm.

       Hicks filed a complaint against his former employer, Concorde Career College (“Concorde”),

alleging that it discriminated against him based on his race and gender, created a hostile work

environment, and retaliated against him for filing a complaint with the Equal Employment

Opportunity Commission (EEOC). The district court granted summary judgment to Concorde. On

appeal, Hicks argues that the district court erred by granting summary judgment to Concorde and by

failing to rule on his motion to strike certain evidence.

       We review de novo a district court’s grant of summary judgment. Alspaugh v. McConnell,

643 F.3d 162, 168 (6th Cir. 2011). Summary judgment is appropriate “if the movant shows that


       *
        The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 10-5275
Hicks v. Concorde Career College

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a).

       Hicks first argues that the district court erred by granting summary judgment to Concorde

on his claim that Concorde discriminated against him based on his gender, in violation of the Equal

Pay Act (“EPA”), by paying him a lower initial salary than it paid to similarly-situated female

admissions representatives. “[T]o establish a prima facie case of wage discrimination under the

EPA, plaintiffs must show that an employer pays different wages to employees of opposite sexes ‘for

equal work on jobs the performance of which requires equal skill, effort, and responsibility, and

which are performed under similar working conditions.’” Beck-Wilson v. Principi, 441 F.3d 353,

359 (6th Cir. 2006) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). “Once

the plaintiff establishes a prima facie case, the defendant must prove that the wage differential is

justified under one of the four affirmative defenses set forth under § 206(d)(1) of the Equal Pay Act:

(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or

quality of production; or (4) any other factor other than sex.” Id. at 360 (internal quotation marks

and citation omitted).

       Assuming that Hicks made a prima facie showing of wage discrimination, the district court

properly granted summary judgment to Concorde because it proved that the wage differential

between Hicks and the specified female admissions representatives was justified on a basis other

than gender. The declarations of Diana Hawkins-Jenks and Cliff Custer demonstrated that Concorde

determined an individual’s starting salary based on his or her verifiable relevant experience and that

Hicks was paid a lower initial salary than the female representatives who he claims were similarly

situated because Concorde could verify only nine months of Hicks’s prior experience, while it

                                                 -2-
No. 10-5275
Hicks v. Concorde Career College

verified between five and ten years of prior experience for the female representatives. There is no

genuine dispute as to any material fact concerning whether the difference in pay was due to a factor

other than gender. See Beck-Wilson, 441 F.3d at 365.

       Hicks next argues that the district court erred by granting summary judgment to Concorde

on his claim that Concorde discriminated against him based on his race in violation of Title VII of

the Civil Rights Act of 1964. “[T]o present a claim, either mixed-motive or single-motive, under

Title VII, a plaintiff must demonstrate that he has suffered an adverse employment action.” White

v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008) (internal quotation marks omitted).

“An adverse employment action is an action by the employer that constitutes a significant change

in employment status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.” Id. (internal

quotation marks omitted). To avoid summary judgment, a plaintiff must “demonstrate that an

illegitimate discriminatory animus factored into the defendant’s decision to take the adverse

employment action.” Id. at 401.

       Hicks failed to demonstrate that a genuine issue of material fact existed concerning whether

his race was a factor in Concorde’s employment decisions. The undisputed evidence demonstrated

that any difference between Concorde’s treatment of Hicks and its treatment of Tommy Harrison,

his Caucasian comparator, was based on differences in their experience, position, and production

goals. Further, Hicks failed to present evidence that Concorde improperly altered his “start”

requirements on a monthly evaluation form to understate his performance.

       Hicks next argues that the district court erred by granting summary judgment to Concorde

on his claim that Concorde retaliated against him for filing a complaint with the EEOC by giving

                                                -3-
No. 10-5275
Hicks v. Concorde Career College

him a poor performance review and by writing him up for complaining. To make a prima facie

showing of retaliation, a plaintiff must demonstrate that he engaged in a protected activity and that

the defendant took an adverse employment action against him that was causally related to the

protected activity. Ladd v. Grand Trunk W. R.R., 552 F.3d 495, 502 (6th Cir. 2009). If the plaintiff

establishes a prima facie case, the defendant must offer a non-discriminatory reason for the adverse

employment action. Id. If the defendant does so, the plaintiff must demonstrate that the proffered

reason was mere pretext. Id. Hicks failed to present evidence creating a genuine issue of material

fact concerning whether Concorde’s proffered reasons for its actions were mere pretext. The

undisputed evidence demonstrated that Hicks’s poor performance review for 2007 and his writeup

were based on his failure to meet his production goals and his poor work ethic.

       Hicks next argues that the district court erred by granting summary judgment to Concorde

on his claim that Concorde created a racially hostile work environment. The district court properly

declined to consider the merits of this claim because Hicks failed to address it in either his response

to the summary judgment 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 erred by failing to rule on his motion to strike an

exhibit showing that he had filed a prior discrimination lawsuit that had been dismissed. The district

court’s failure to rule on the motion constituted, at most, harmless error because the exhibit was

irrelevant to the claims at issue and the district court did not rely on it in adjudicating Concorde’s

summary judgment motion.

       Accordingly, we affirm the district court’s judgment.




                                                 -4-
