                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0551n.06

                                          No. 11-5733
                                                                                       FILED
                              UNITED STATES COURT OF APPEALS                      May 29, 2012
                                   FOR THE SIXTH CIRCUIT
                                                                            LEONARD GREEN, Clerk
SAMUEL KARIUKI,                                     )
                                                    )
       Plaintiff-Appellant,                         )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
v.                                                  )       THE EASTERN DISTRICT OF
                                                    )       KENTUCKY
COMAIR, INC.,                                       )
                                                    )
       Defendant-Appellee.                          )



       Before: MARTIN and DAUGHTREY, Circuit Judges; MALONEY, Chief District Judge.*


       PER CURIAM. Samuel Kariuki appeals the district court’s grant of summary judgment to

Comair, Inc., in the employment discrimination action filed by Kariuki pursuant to 42 U.S.C.

§ 2000e et seq. (Title VII) and Kentucky’s anti-discrimination statute, Ky. Rev. Stat. § 344.040.

       Kariuki was born in Kenya and moved to the United States after graduating from high school.

He received an associate’s degree in aviation maintenance and a bachelor’s degree in leadership

development. He is a licensed mechanic. Kariuki was hired by Comair, Inc. in 2004 to work as a

mechanic. In 2006, he applied for a promotion to an avionics technician position. The position

concerned electrical work. When the position was awarded to a Caucasian man born in the United

States, Kariuki filed a complaint with the Equal Employment Opportunity Commission alleging

discrimination. Kariuki subsequently received a right to sue letter from the EEOC.



       *
       The Honorable Paul L. Maloney, Chief United States District Judge for the Western District
of Michigan, sitting by designation.
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       He then filed his civil rights complaint in the district court, alleging that he was denied the

promotion on the basis of his race and national origin. The district court granted Comair’s motion

for summary judgment, precipitating this appeal. We now review the district court’s judgment de

novo. Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005)..

       On appeal, Kariuki contends that the district court erred in finding that he did not apply for

two open positions for avionics technicians. He concedes that the person hired for the position he

listed on his application was more qualified than he, but argues that his application entitled him to

consideration for a second position that was advertised, and that the person awarded that promotion

was less qualified. Kariuki also argues that Comair proffered several different reasons for failing

to promote him, raising an inference that such reasons were a pretext for discrimination.

       In order to establish a prima facie case of discrimination, Kariuki was required to show that

he is a member of a protected class, that he applied and was qualified for the promotion sought, that

he was denied the promotion, and that a non-class member of similar qualifications was promoted

to the position. See Dews v. A.B. Dick Co., 231 F.3d 1016, 1020-21 (6th Cir. 2000). If a prima facie

case is established, the defendant must proffer a non-discriminatory reason for the adverse action.

The plaintiff then has the ultimate burden of showing that the proffered reason is a pretext for

discrimination. Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 547 (6th Cir. 2004).

In this case, the district court found that the person promoted to the position that Kariuki sought was

clearly more qualified. Therefore, Kariuki could not establish the fourth prong of a prima facie case.

       Regarding the second position, the district court found that no prima facie case was

established because Kariuki did not file an application for that position. Kariuki argues that his

application should have qualified him to be considered for that position. Comair argues that, even
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if Kariuki had applied for the position in question, Kariuki has not carried his ultimate burden of

showing that the legitimate reasons proffered by Comair for failing to promote Kariuki to that

position were a pretext for discrimination.

       Kariuki was interviewed following his application by two people, a human resources officer

and the manager of the avionics department. The human resources officer stated that Kariuki was

not promoted because he was not willing to work second shift and because he had no experience

with electrical wiring. The employee who received the promotion was willing to work any shift and

had electrical wiring experience on cars and computers. The manager of the avionics department,

however, stated that Kariuki was not chosen because another manager had informed him of an

occasion when Kariuki used the wrong grease on a part and lied to the manager concerning the

incident. In order to show that these proffered reasons were pretextual, Kariuki must demonstrate

that the reasons had no basis in fact, did not actually motivate the decision, or were insufficient to

motivate the decision. See Abbott v. Crown Motor Co., 348 F.3d 537, 544 (6th Cir. 2003).

       Kariuki disputes the allegation that he was unwilling to work any shift, but the human

resources officer documented that reason in his interview notes. Kariuki also argues that the

employee who was promoted was not more qualified. However, he fails to challenge the reason

proffered by the avionics department manager. Instead, he argues that the sheer number of reasons

proffered by Comair suggests pretext, citing Asmo v. Keane, Inc., 471 F.3d 588, 596 (6th Cir. 2006),

as authority for this position. However, Asmo is distinguishable because the explanation initially

offered was shown to be untrue and was later abandoned. Here, Kariuki has not shown that any of

the reasons are untrue, and Comair has maintained its position. Although the two people who
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                                               -4-

interviewed Kariuki had different reasons for not promoting him, Kariuki did not show that the

proffered reasons were a pretext for discrimination based on his race or national origin.

       The district court’s judgment is affirmed.
