                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0380n.06
                                                                                        FILED
                                         No. 10-5193
                                                                                   Jun 06, 2011
                         UNITED STATES COURT OF APPEALS
                                                                             LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT


MICHAEL TODD HIGHFILL,                          )
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
THE CITY OF MEMPHIS,                            )   WESTERN DISTRICT OF TENNESSEE
                                                )
       Defendant-Appellee.                      )




       Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Michael Todd Highfill

appeals the district court’s grant of summary judgment to the City of Memphis in this civil-

rights action alleging that his termination from his position as a Memphis firefighter was

racially motivated, in violation of 42 U.S.C. §§ 1981 and 1983. The City maintains that

Highfill was terminated due to his failure to complete his Firefighter II certification within 36

months, a condition of his employment contract. Highfill, who is Caucasian, contends that

African-American firefighters who also failed their certification exams were provided with

tutors and given additional time to complete their certifications.


       Initially, the City challenged the timeliness of Highfill’s reverse-discrimination claims,

and the district court held that the section 1983 claims were barred by the statute of
No. 10-5193
Highfill v. City of Memphis

limitations. However, the court found that the claims based on section 1981 jurisdiction

were timely, and the defendant concedes this point on appeal. We therefore pretermit

further review of this question.


       The district court also found that Highfill had failed to establish a prima facie case

of discrimination because he did not prove, first, that he was qualified for continued

employment at the time of his termination and, second, that similarly-situated African-

American firefighters were treated more favorably than he. The district court made

additional rulings below but review of those questions – such as the existence of

“background circumstances” to support this reverse-discrimination claim and the plaintiff’s

allegation of pretext – becomes unnecessary in the absence of a prima facie case. We

conclude that the record supports the district court’s grant of summary judgment and,

therefore, affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND


       Highfill was hired as a firefighter and paramedic by the City of Memphis in April

2001. Under the terms of Highfill’s employment agreement, he was required to complete

his Firefighter I certification within 12 months of the date of his hire and his Firefighter II

certification within 36 months of the date of his hire. He successfully completed his

Firefighter I certification exam in July 2001. Although he passed the practical portion of his

Firefighter II certification exam in May 2003, he failed to pass the written portion despite

the fact that he took the test twice. His passing score for the practical portion of the

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Highfill v. City of Memphis

Firefighter II certification exam expired one year later, in May 2004. In August 2004,

Highfill took that portion of the Firefighter II certification exam again, but this time he did

not pass it, nor did he complete the other portion of the Firefighter II exam.


       Highfill was not dismissed immediately but, following a hearing on October 11, 2004,

he was terminated from employment with the City on October 22, 2004, just over three-

and-a-half years from the date of his hire. Highfill filed this action in July 2007, claiming

racial discrimination motivated his dismissal.


                                       DISCUSSION


       We review the district court’s grant of summary judgment de novo. See Wimbush

v. Wyeth, 619 F.3d 632, 636 (6th Cir. 2010). The court’s order must be upheld if there is

no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). We review the evidence in the light most favorable to the

non-moving party, but in order to defeat a motion for summary judgment, that party is

nevertheless required to “come forward with ‘specific facts showing that there is a genuine

issue for trial.’" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986), (quoting Fed. R. Civ. P. 56 (e)). "The mere existence of a scintilla of evidence in

support of the plaintiff's position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986).



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Highfill v. City of Memphis

       Section 1981 proscribes discrimination on the basis of race in the making or

enforcement of contracts and provides, in pertinent part:


       (a) Statement of equal rights


       All persons within the jurisdiction of the United States shall have the same
       right in every State and Territory to make and enforce contracts, to sue, be
       parties, give evidence, and to the full and equal benefit of all laws and
       proceedings for the security of persons and property as is enjoyed by white
       citizens, and shall be subject to like punishment, pains, penalties, taxes,
       licenses, and exactions of every kind, and to no other.


       (b) “Make and enforce contracts” defined


       For purposes of this section, the term “make and enforce contracts” includes
       the making, performance, modification, and termination of contracts, and the
       enjoyment of all benefits, privileges, terms, and conditions of the contractual
       relationship.


42 U.S.C. §§ 1981(a) and (b). Section 1981 liability attaches to a municipal defendant only

if the allegedly discriminatory actions are based on official municipal policy or custom. See

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989) (“Thus to prevail on his claim

for damages against the [defendant], petitioner must show that the violation of his ‘right to

make contracts’ protected by § 1981 was caused by a custom or policy”).


       In this case, the district court granted the City’s motion for summary judgment on

Highfill’s discrimination claims because it found that Highfill failed to establish a prima facie

case of discrimination. In order to make out a prima facie case of reverse discrimination,


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Highfill v. City of Memphis

a litigant must show that: (1) he is a member of a protected class; (2) he was qualified for

the job; (3) he experienced an adverse employment action; and (4) he was replaced by a

person outside the protected class or he was treated differently than a similarly situated

non-protected employee. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). In a reverse-discrimination case, circuit precedent adds as an requirement that the

plaintiff must demonstrate “background circumstances [to] support the suspicion that the

defendant is that unusual employer who discriminates against the majority.” Leadbetter v.

Gilley, 385 F.3d 683, 690 (6th Cir. 2004) (internal quotation marks omitted). Once a

plaintiff successfully meets all the requirements for a prima facie case, the burden of

production then shifts to the defendant to offer a legitimate, non-discriminatory reason for

terminating the plaintiff. See Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981)). If the defendant meets this burden, the burden of production once again

shifts to the plaintiff to demonstrate that the proffered reason is false or pretextual. Id.


       The district court found that Highfill failed to establish three of the elements of his

prima facie case: (1) that he was qualified for his position, (2) that similarly-situated

firefighters were treated more favorably than he was treated, and (3) that there existed

background circumstances sufficient to support the suspicion that the City of Memphis is

that unusual employer that discriminates against the majority. On appeal and especially

at oral argument, Highfill’s counsel argued forcefully against the “background

circumstances” requirement, contending – as some of our opinions have suggested – that

it “imposes a more onerous standard for plaintiffs who are white or male than for their

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Highfill v. City of Memphis

non-white or female counterparts." Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796,

801 n. 7 (6th Cir.1994); see also Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 257 (6th

Cir. 2002) ("We share the concern that . . . the potential application of a heightened

pleading standard could be the difference between granting and denying summary

judgment."). In this case, however, the presence or absence of background circumstances

need not be determined, because it is clear that the evidence fully supports the district

court’s rulings with regard to the plaintiff’s qualification for the position and the City’s

treatment of similarly-situated minority fire-department employees (“comparators”).


       In determinating whether a plaintiff has presented sufficient evidence of qualification

to support a prima facie case, only the plaintiff's objective qualifications are relevant. See

Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003) (en banc)

(“The prima facie burden of showing that a plaintiff is qualified can therefore be met by

presenting credible evidence that his or her qualifications are at least equivalent to the

minimum objective criteria required for employment in the relevant field.”). The record

does contain several instances of deposition testimony that suggest that Highfill was a

proficient employee. The most objective statement of the required qualifications for

Highfill’s position, however, was Highfill’s employment contract. See Alexander v.

CareSource, 576 F.3d 551, 563-64 (6th Cir. 2009) (“[Defendant]'s job description amounts

to evidence of the minimum job qualifications”). That contract clearly states that

successfully completing the Firefighter II certification within 36 months of the date of his

hire was a requirement of Highfill’s position. Hence, by failing to attain this certification,

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Highfill v. City of Memphis

Highfill failed to “demonstrate[] possession of the required general skills.” Wexler, 317 F.3d

at 576.


       The brief Highfill filed on appeal appears to concede this point, but he contends,

even so, that African-American employees were given additional time and tutoring support

in order to pass the required exam. But Highfill has presented no evidence that with the

additional time or support allegedly provided to the African-American firefighters, he would

have been able to complete the certification successfully. In fact, the record seems to

suggest the opposite, given the fact that he failed the practical portion of the Firefighter II

certification exam a year after initially passing it.


       The district court also found that Highfill did not satisfy another requirement of his

prima facie case of racial discrimination: proof that similarly-situated African-American

employees were treated more favorably than he. In order to be considered “similarly

situated” for purposes of comparison, the employment situation of the comparator must be

similar to that of the plaintiff in all relevant aspects. See Ercegovich v. Goodyear Tire &

Rubber Co., 154 F.3d 344, 352-53 (6th Cir. 1998).


       Highfill provides a lengthy list of potential comparators. However, with respect to

the crux of his claim, i.e., that African-American employees were given additional time and

support to complete the Firefighter certification requirement, there were only three relevant

comparators: Torian Thomas, Cassandra Brown, and Shawn Jackson. Although Highfill

argues that African-American employees had disciplinary infractions that are arguably

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Highfill v. City of Memphis

more serious than failure to pass the certification exams, his discrimination claim rests on

the assertion that other African-American employees were treated differently than he was

for purposes of the certification exams and, thus, unrelated information about other types

of infractions by fellow employees is not relevant for purposes of comparison. See

Leadbetter, 385 F.3d at 691 (“The similarities between the plaintiff and the [comparator]

must exist in all relevant aspects of their respective employment circumstances.

Differences in job title, responsibilities, experience, and work record can be used to

determine whether two employees are similarly situated.”) (internal citations and quotations

omitted).


       The first of the three relevant comparators was Torian Thomas, an African-American

firefighter who was hired subsequent to Highfill’s termination. Thomas failed to pass his

Firefighter I certification exam within the one-year limit, although this result was due

specifically to his inability to pass the Hazardous Materials Awareness portion of the

Firefighter I exam, an element of the exam that was not required at the time of Highfill took

the Firefighter I exam. The record indicates that Thomas was offered tutoring to aid in

mastering the hazardous materials portion of the exam but that such tutoring never

occurred. Thomas subsequently passed the exam and was retained as an employee.

After Thomas failed to attain his Firefighter II certification, however, he was terminated one

month after his three-year probation period lapsed.




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Highfill v. City of Memphis

       The second of the three, Cassandra Brown, was an African-American firefighter who

was hired in July 2004. Two months later, in September 2004, she was deployed with the

military before completing her Firefighter I certification. When she returned from military

service in September 2006, she was temporarily assigned to work at the Firefighter

Museum until a new recruit class began in March 2007. She subsequently received her

Firefighter I certification in September 2007. She then had until March 2010 to complete

her Firefighter II certification, but neither the record nor the briefs on appeal indicate

whether she was successful.


       The third and final comparator was Shawn Jackson, an African-American firefighter

who was given a 90-day extension in which to get his Firefighter I certification. The record

shows, however, that after he received his Firefighter I certification, he then received his

Firefighter II certification with three years of the date of his hire, as stipulated in his

employment contract.


       Obviously, none of the comparators discussed above was similarly situated to

Highfill. Although each of them was given additional time to pass the Firefighter I exam,

they were not given extra time or support in passing the Firefighter II certification exam.

Moreover, there is nothing in the record to suggest that Highfill needed extra time to pass

his Firefighter I certification or that he would have been denied extra time to gain his

Firefighter I certification if he had requested it. The only comparator who, like Highfill,

failed to attain his Firefighter II certification within three years of hire, Torian Thomas, was


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No. 10-5193
Highfill v. City of Memphis

likewise terminated for that reason. Further, Thomas was terminated approximately one

month after his three-year period expired, whereas Highfill was not terminated until almost

six months after his three-year probation period had expired, suggesting that Highfill was

treated more leniently than Thomas, not more harshly.


       Moreover, Cassandra Brown’s failure to attain her Firefighter I certification within

one year of her initial date of hire was due to intervening military service. Discounting this

time period, the record shows that she attained her Firefighter I certification within one year

of restarting her recruit training. As a result, although she technically was afforded more

time to attain her Firefighter I certification, her intervening military service makes her an

inappropriate comparator. See Arendale v. City of Memphis, 519 F.3d 587, 604 (6th Cir.

2008) (“Superficial similarities between a disciplined employee and his colleagues are not

sufficient to show a prima facie case of discrimination.”).


       In summary, none of the department employees who were alleged to be similarly

situated to Highfill for purposes of the firefighter-certification requirement were treated

more favorably than white firefighters. In fact, the record shows that Highfill may have

received special consideration when he was kept on for six months beyond the expiration

of his three-year probation period.


       Furthermore, even if Highfill could demonstrate that a similarly-situated employee

had been treated more favorably than he, the record is devoid of proof that any

constitutional deprivation that he suffered was a result of a “a custom or policy within the

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Highfill v. City of Memphis

meaning of Monell [v. New York City Department of Social Services, 436 U.S. 658 (1978),]

and subsequent cases.” Jett, 491 at 735-736. In order to be actionable, an alleged

deprivation of rights must have resulted either from “policies which affirmatively

command[ed] that it occur” or from “acquiescence in a longstanding practice or custom

which constitutes the ‘standard operating procedure’ of the local governmental entity.” Id.

at 737 (citations omitted). In other words, the municipality must be the “moving force”

behind the deprivation in order to be liable for violations under § 1981. See Kentucky v.

Graham, 473 U.S. 159, 166 (1985).


       In the two instances in which African-American firefighters were given short

extensions in which to attain their Firefighter I certification, the extensions were not granted

pursuant to a policy that the City of Memphis created, nor were they examples of a practice

so pervasive as to constitute a “custom.” Nevertheless, as further evidence of a policy or

custom of reverse discrimination, Highfill points to a few deposed witnesses who personally

believed that African-Americans were treated more favorably than their Caucasian

counterparts, but their testimony was vague and non-specific and clearly lacked sufficient

weight to serve as evidence of pervasive discrimination. See Arendale, 519 F.3d at 600

(“In order to establish that the City's ‘failure to act can be said to amount to an official policy

of inaction,’ the evidence must demonstrate more than just ‘a collection of sloppy, or even

reckless, oversights . . . .’ Rather, the record must show that the City ‘consciously never

acted when confronted with its employees' egregious and obviously unconstitutional

conduct.’”) (internal citations omitted). Highfill has simply not presented evidence sufficient

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Highfill v. City of Memphis

to suggest the existence of discrimination against white firefighters, much less establish

that the City of Memphis was the moving force behind a policy of discrimination or that

such discrimination went unaddressed by the City despite its pervasiveness.


                                       CONCLUSION


       Because the record fully supports the district court’s decision that the plaintiff did not

establish a prima facie case of discrimination, we AFFIRM the district court’s judgment

granting summary judgment to the defendant.




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