                                      File Name: 07a0266n.06
                                        Filed: April 10, 2007

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                             No. 06-3905

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

IHAB ELGABI,

          Plaintiff-Appellant,

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
TOLEDO AREA              REGIONAL        TRANSIT            COURT FOR THE NORTHERN
AUTHORITY,                                                  DISTRICT OF OHIO

          Defendant-Appellee.


                                                        /

Before:          MERRITT and MARTIN, Circuit Judges; FORESTER, District Judge.*

                                              OPINION

          BOYCE F. MARTIN, JR., Circuit Judge. Ihab Elgabi brought suit against the Toledo Area

Regional Transit Authority (“TARTA”), alleging violations of Title VII of the Civil Rights Act, as

well as related state law claims, based on his discharge as a probationary TARTA employee. The

district court granted summary judgment on behalf of TARTA, the decision from which Elgabi

appeals, and that we now affirm.

                                                   I.

          The district court set forth the following facts in its summary judgment opinion:

          *
       The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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       Ihab Elgabi (“Elgabi”) is of Egyptian national origin. Elgabi applied for employment
       as a driver with [TARTA] and completed an application for employment in that
       regard on March 7, 2002. On the application, Elgabi listed a social security number
       ending in 9726. He responded to the questions on the application as follows:

              Other than for traffic violations, have you been convicted in a court
              of law? (Elgabi answered) “No.”
              Have you had any moving violations? (Elgabi answered) “No.”

       At the end of the application, just above his signature, was the following statement:

              Do you fully understand that for the first 90 days of your
              employment, beginning with your In-Service Date, you will be on
              probation, which means that your continued employment will be at
              the discretion of TARTA? Yes: (to which Elgabi wrote yes and initialed).

              Do you authorize TARTA to make any investigation/background
              check it considers necessary in regard to your application? Yes: (to
              which Elgabi wrote yes and initialed).

              I certify that such information contained in this application and all
              supporting documents is correct to the best of my knowledge and
              understand that falsification of employment records is grounds for
              dismissal regardless of the date such falsification is discovered.

       Under this last statement, Elgabi signed his name and dated his application.

       On March 15, 2002, TARTA requested an independent criminal background and
       driving history be conducted by Data Research, Inc. TARTA provided Data
       Research with the information provided by Elgabi on his application. The report did
       not reveal any criminal or traffic offenses and covered the three years preceding the
       application.

       In June 2002, Elgabi was hired into TARTA’s June training class and the effective
       date of his employment was June 24, 2002. At that time he was promoted from a
       driver trainee to a part-time driver.

       According to Elgabi, shortly after his employment at TARTA began, he also applied
       for a position with the Toledo Public Schools (“TPS”). In the application with TPS,
       Elgabi also used the same social security number as provided to TARTA and agreed
       to a criminal background check with the Federal Bureau of Investigation (“FBI”).
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Elgabi v. Toledo Area Regional Transit Authority
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       The FBI check revealed a criminal conviction for domestic violence and an arrest for
       a firearms violation. Elgabi was informed by TPS that he was ineligible for
       employment due to his domestic violence conviction.

       The director of TARTA’s transportation, John Stewart, was advised by TPS about
       Elgabi’s background check and the information was deemed “disturbing.” (Gerald
       Bowsher Dep., p. 34.) Ultimately, TARTA acquired the information from TPS and
       confirmed it with the Oregon Police Department. Additionally, TARTA discovered
       conviction for a traffic offense. Gerald Bowsher (“Bowsher”), TARTA’s Director
       of Human Resources also asked for a meeting with the FBI to review the data.
       Thereafter, Bowsher and the acting superintendent of TARTA, Gerald Austin
       (“Austin”) made the decision to terminate Elgabi based upon falsification of his
       employment application. (Id., pp. 43-44.). Elgabi was terminated from his
       employment effective September 12, 2002.

       The station supervisor, Timothy Butler, escorted Elgabi from the property and
       reported that Elgabi stated that he [Elgabi] “was a trained weapon and bomb
       specialist and what Mr. Bowsher did was wrong.” (Bowsher Aff., P6.). Based upon
       this statement, Bowsher posted Elgabi’s photograph with the following statement:
       “Attention: If you should see this man on TARTA property you are to notify a
       supervisor immediately. Name: Ihab Elgabi. Former Operator # 1706.” (Bowsher
       Dep., p. 51.).

       After Elgabi’s termination, the local ABC affiliate, Channel 13’s I-Team undertook
       an investigation regarding the criminal records of TARTA drivers. Channel 13
       advised TARTA that based upon its research, eighteen drivers had prior criminal and
       traffic offenses. TARTA then undertook its own investigation and determined that
       four of the eighteen drivers had not completely disclosed their criminal histories and
       those four drivers were terminated. A subsequent investigation by TARTA and
       unrestricted as to time, resulted in additional terminations of five drivers for
       falsification of their application.

       In March 2005, Elgabi filed suit against TARTA alleging national origin
       discrimination under Title VII, 42 U.S.C. § 2000e and the Ohio Civil Rights Act,
       Ohio Rev. Code § 4112.02, seeking damages, reinstatement and injunctive relief.

D. Ct. Op. at 1-4.

       In granting summary judgment on behalf of TARTA, the district court reasoned that Elgabi

could not make out a prima facie case under the McDonnell-Douglas/Burdine burden shifting
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framework because he could not show that he was treated differently than similarly situated

employees. D. Ct. Op. at 7-10. It also determined that even had Elgabi made out a prima facie case,

TARTA met its burden of showing a legitimate, non-discriminatory reason for his discharge — to

wit, his lying about past criminal conduct and moving violations on his application — and that

Elgabi could not that this reason was pretextual. D. Ct. Op. at 10-12. The district court noted that

Elgabi’s claims under the Ohio Civil Rights Act essentially subsumed by his Title VII claim, as the

“Ohio Supreme Court has held that the [statute’s] coverage . . . is identical to the coverage of federal

law prohibiting discrimination in the employment context.” D. Ct. Op. at 7 n. 1. Elgabi does not

challenge this determination on appeal.

                                                  II.

       We review a district court’s grant of summary judgment de novo, and must view “the facts

and any inferences that can be drawn from those facts . . . in the light most favorable to the non-

moving party.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1996)). Summary judgment is only

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56).

Weighing of the evidence or making credibility determinations are prohibited at summary judgment

— rather, all facts must be viewed in the light most favorable to the non-moving party. Id.

       Elgabi sought to advance his case with indirect evidence of discrimination under the

McDonnell Douglas-Burdine burden shifting approach. See generally McDonnell Douglas Corp.
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v. Green, 411 U.S. 792 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Under McDonnell Douglas, a plaintiff who cannot present direct evidence can establish a prima facie

case of discrimination where he can show (1) that he was a member of a protected class; (2) that he

was qualified for the position in question; (3) that he was subjected to an adverse job action; and (4)

that he was replaced by a person outside the protected class, or treated less favorably than a similarly

situated person outside the protected class. Johnson v. University of Cincinnati, 215 F.3d 561, 572

(6th Cir. 2000). Where a plaintiff can make such a showing, “a mandatory presumption of

discrimination is created and the burden shifts to the defendant to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.” Id. If the defendant articulates a legitimate,

non-discriminatory basis for the decision, “then the plaintiff must prove that the proffered reason was

actually a pretext to hide unlawful discrimination.” Id. “A plaintiff can refute the legitimate,

nondiscriminatory reason that an employer offers to justify an adverse employment action by

showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the

defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Wexler

v. White’s Fine Furniture, 317 F.3d 564, 576 (en banc) (6th Cir. 2003).

                                                  III.

        Elgabi first challenges the district court’s determination that he did not make out a prima

facie case under McDonnell Douglas. The parties do not dispute the presence of the first three

elements of a prima facie case: Elgabi is part of a protected class due to his Egyptian national origin,

he was qualified for the bus driver position, and he suffered an adverse job action when he was
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Elgabi v. Toledo Area Regional Transit Authority
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terminated. The dispute here turns on whether Elgabi was treated differently than similarly situated

individuals who were not members of the protected class.

       When TARTA conducted its investigation of its employees, prompted in part by the Channel

13 “I-Team” investigation, it eventually determined that 18 of its drivers had significant traffic

violations. Of the eighteen, two had committed traffic infractions while TARTA employees, and had

therefore not falsified their applications. According to TARTA’s Director of Human Resources,

Gerald Bowsher, the agency was not capable of discharging the remaining sixteen employees, who

were less than forthcoming on their applications, because of the adverse affects such a layoff would

have on both bus service and labor-management relations. As a result, TARTA decided to limit the

terminations to those employees who had failed to disclose criminal convictions, allowing it to retain

employees whose applications only omitted past traffic offenses. The terminated employees were

Steven Traudt, Paul Waites, Emory Mitchell and Jose Cardenas. Bowsher also testified that since

1999, TARTA has terminated every employee that it has discovered to have lied about past criminal

history, both before and since Elgabi’s termination.

       Elgabi identifies six of the sixteen TARTA employees who made misrepresentations on their

applications as similarly situated individuals who did not receive adverse job actions. These six

employees fall into two different groups. The first group includes the two other employees, Traudt

and Waites, who lied about past criminal conduct on their applications. Traudt failed to disclose that

he had been convicted for aggravated vehicular homicide, and Waite failed to disclose that he had

been convicted of obstructing official business, and charged but not convicted of disorderly conduct,

carrying a concealed weapon, and domestic violence. When TARTA discovered that Traudt and
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Elgabi v. Toledo Area Regional Transit Authority
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Waite each had a conviction that they failed to disclosed on their application, it fired both men from

their positions. Unlike Elgabi, however, both Traudt and Waites were members of the Amalgamated

Transit Union, and after filing grievances with the Union, both were reinstated to their positions

without backpay or benefits.1

          The second group of employees identified by Elgabi includes those who failed to disclose

moving violations in their applications: John Carswell, Steven Villagomez, Marvin Smith, and

Shawn Turner. Their collective, unreported traffic violations included operation of a vehicle at a

stop sign, failure to control, driving under suspension, and inability to stop an assured clear distance,

among others. Villagomez also failed to report a criminal charge of failing to register a dog or

kennel.

          The district court was correct that Elgabi failed to establish the fourth prong of his prima

facie case. Considering the second group first, Elgabi clearly is not similarly situated to the four

employees who were retained despite failing to disclose traffic violations, because he did more than

fail to disclose traffic violations. He failed to disclose a criminal conviction for violent conduct,

which TARTA could quite reasonably determine to be more troubling than past moving violations.

The very cases upon which Elgabi relies undermine his position. We have held that “to be deemed

‘similarly-situated’ in the disciplinary context, ‘the individuals with whom the plaintiff seeks to

compare his/her treatment must have dealt with the same supervisor, have been subject to the same

standards and have engaged in the same conduct without such differentiating or mitigating


          1
       Although it is not apparent from the parties’ briefs, it would seem that Mitchell and
Cardenas were not reinstated, which likely explains why Elgabi focuses his argument only on Traudt
and Waite.
No. 06-3905
Elgabi v. Toledo Area Regional Transit Authority
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circumstances that would distinguish their conduct or the employer’s treatment of them for it.’”

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).2 Clearly there are

differentiating circumstances that distinguish Elgabi’s conduct from those of the employees who

failed to disclose moving violations alone: he omitted criminal convictions from his application and

they did not. Therefore they were not similarly situated.

       The district court also correctly determined that Elgabi did not establish the fourth element

of his prima facie case through comparisons to Traudt or Waites. These two employees were

similarly situated to Elgabi in that both failed to disclose past criminal convictions in their job

applications. Also like Elgabi, however, both were terminated by TARTA. Although Elgabi makes

much of the fact that both were later reinstated to their positions, this is simply a consequence of

their union membership and the grievance process, as well as their non-probationary status. Thus



       2
         It may be worth noting that opinions of this Court have cautioned against conflating the
fourth prong of the prima facie case — comparison to similarly situated individuals — with the
subsequent inquiry regarding whether the employer’s proffered justification for the adverse job
action is pretextual. See White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 242 (6th Cir. 2005)
(“[W]e are mindful of the fact that prior Sixth Circuit case law warns against conflating the first
(prima facie case) and second (articulation of a legitimate non-discriminatory reason) steps in the
McDonnell-Douglas analysis.”); see also id. at 247 (Moore, J., concurring) (arguing that the panel
majority’s analysis in fact conflated the two steps, and that the plaintiff had made out a prima facie
case). This concern is based on the fact that the prima facie case is “not onerous” and is usually
“easily met.” Cline v .Catholic Diocese, 206 F.3d 651, 660 (6th Cir. 1999). It would seem that this
concern is particularly relevant in cases where an employment decision is based on the relevant
qualifications of different employees. See, e.g., White, 429 F.3d at 242. Thus, where qualifications
are roughly similar, an employer’s decision to select a given employee based on her qualifications
might be a legitimate, non-discriminatory, non-pretextual basis from the challenged decision, but it
would not automatically defeat the plaintiff’s prima facie case. See id. at 247 (Moore, J.,
concurring). Where the challenged decision is disciplinary in nature, however, the concern of
conflating the steps of the McDonnell-Douglas analysis are met so long as there are clear distinctions
in the conduct of the employees in question.
No. 06-3905
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for purposes of reinstatement, Elgabi was not similarly situated to Traudt and Waites. In focusing

on their position post-termination, these three employees were clearly not similarly situated. As

TARTA points out, we have found probationary status to be a relevant consideration for the

similarly-situated inquiry. See Cooper v. North Olmsted, 795 F.2d 1265, 1270-71 (6th Cir. 1986)

(“A probationary period of employment permits a company to weed out or eliminate undesirable

employees. The opportunity to dismiss more readily those new employees whose job performance

is unsatisfactory is particularly important to [a municipal bus line]. As a common carrier, [the

municipal bus line] has the duty of exercising the highest standard of care for the safety of its

passengers. Probationary bus drivers therefore do not stand on equal footing with permanent drivers,

and cannot be considered to be similarly situated.” (internal citations omitted)).

       Because neither Traudt nor Waites were similarly situated to Elgabi, the district court was

correct that this comparison does not help Elgabi establish the fourth element of his prima facie case,

and in granting TARTA’s summary judgment motion on this basis. We therefore affirm the

disposition for this reason. Because Elgabi failed to make out a prima facie case of discrimination

under Title VII, we find it unnecessary to assess whether TARTA’s proffered explanation for his

discharge was pretextual.
