                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0788n.06
                           Filed: October 23, 2006

                                            No. 05-4441

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JOHN S. PEACE and WILLIAM                         )
WALKER,                                           )
                                                  )
       Plaintiffs-Appellants,                     )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR
RANDALL WELLINGTON,                               )   THE NORTHERN DISTRICT OF
                                                  )   OHIO
       Defendant-Appellee.                        )



Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants John S. Peace (Peace)

and William Walker (Walker) appeal the district court’s grant of summary judgment for

defendant-appellee Randall Wellington on plaintiffs’ claims of disparate impact under Title VII

of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e

et seq. (Title VII), and violation of their constitutional rights under 42 U.S.C. § 1983 (§ 1983).

The district court held that Peace and Walker brought forth no evidence to support a prima facie

case of disparate impact and also failed to set forth sufficient evidence to establish a genuine

issue of material fact that a constitutional violation occurred or that Wellington was responsible

for such a violation. For the following reasons, we affirm the district court’s judgment.



                                                  1
                                                 I.

       Plaintiffs Peace and Walker are African-American and employed by the Mahoning

County Sheriff’s Department (MCSD). Defendant Wellington is the duly elected Sheriff of

Mahoning County, Ohio. Peace and Walker, as employees of the MCSD, are members of a

bargaining unit represented by the Fraternal Order of Police/Ohio Labor Council, Inc. (FOP), and

their employment with MCSD is governed by a Collective Bargaining Agreement (CBA). Under

Article 36 of the most recent CBA, the parties agreed to eliminate the rank of corporal within the

MCSD. Article 36 of the CBA, in relevant part, states:

       Corporals who opt not to take the Sergeants test or who fail the test, shall be returned
       to the rank of Deputy with no loss of pay and with credit for Departmental seniority
       as a Deputy. Corporals who opt to not take the Sergeants test will be placed into the
       Deputies rank in order of their departmental seniority after the promotions to the rank
       of Sergeant have been filled. Any Corporal who passes this test with a composite
       score of seventy percent (70%) or better shall be promoted to the rank of Sergeant.
       Such promotion shall take place prior to any deputy being promoted to the rank of
       Sergeant.

Accordingly, any corporal who achieved a score of 70 percent or higher would automatically be

promoted to the rank of sergeant, while any corporal who did not obtain a score of 70 percent or

higher or opted not to take the exam would be demoted to the rank of deputy but without a loss

of pay or departmental seniority.

       Wellington distributed study material for the promotion examination in the spring of

2001 to Peace, Walker, and all other members of the MCSD who planned to take the

examination. Wellington did not participate in the creation, administration, or scoring of the

promotion examination. After one rescheduling, the examination was administered on

September 29, 2001. Forty-nine deputies and eight corporals, including Peace and Walker,

                                                  2
ultimately took the exam. Forty deputies who took the exam passed with a composite score of 70

percent or higher. Of the eight corporals who took the test, four passed and four failed. Peace

and Walker were two of the four corporals who failed the promotion examination.

       Despite failing the examination, Peace and Walker were not immediately demoted. On

February 14, 2002, however, MCSD Deputy Joseph Hood filed a grievance requesting that an

arbitrator order Wellington to demote the corporals who failed the exam to the rank of deputy.

The arbitrator ultimately found that the parties had mutually agreed to the elimination of the rank

of corporal from the organizational structure of the MCSD, that four corporals had failed the

examination, and that there were no conditions precedent to the demotion of those who failed.

Accordingly, the arbitrator directed Sheriff Wellington to demote the corporals who either failed

or opted not to take the examination.

       On December 6, 2002, Peace, Walker, and the two other corporals who failed the

examination filed a complaint against the MCSD in the Mahoning County Common Pleas Court

seeking a permanent injunction barring the MCSD from implementing the arbitrator’s judgment,

along with punitive damages. On February 24, 2003, the Court of Common Pleas adopted the

opinion of the Magistrate Judge Eugene Fehr and dismissed plaintiffs’ complaint for failure to

state a claim upon which relief could be granted.

       On December 30, 2002, the same plaintiffs, including Peace and Walker, filed an unfair

labor practice charge against the FOP with the Ohio State Employment Relation Board

(OSERB), alleging that the FOP violated Ohio Revised Code § 4117.11(B)(6) by failing to




                                                 3
represent their interests during negotiations and failing to process their grievance.1 Following an

investigation, on April 9, 2003, the OSERB dismissed the charge with prejudice for lack of

probable cause to believe that an unfair labor practice had been committed by the FOP and as

untimely filed.

       On May 16, 2003, Wellington posted a letter titled “Demotion of Corporals” that

provided notice that the four corporals who failed the examination, including Peace and Walker,

would be demoted to the rank of deputy, effective May 18, 2003, with pay in accordance with the

CBA agreement. On September 17, 2003 seven of the deputies who passed the promotion

examination were promoted to the rank of sergeant pursuant to Article 36 of the CBA, effective

September 21, 2003.

       On February 26, 2004, both Peace and Walker filed charges of discrimination against the

MCSD with the Ohio Civil Rights Commission (OCRC). On July 22, 2004, the OCRC

determined that no evidence had been discovered during the course of its investigation that

would substantiate either that Peace and Walker were demoted or denied promotion to sergeant

on the basis of race. The OCRC concluded that there was no probable cause to believe that the

MCSD engaged in any unlawful discriminatory practice under Ohio Revised Code § 4112.02.2


       1
          Section 4117.11(B)(6) of the Ohio Revised Code provides that it is an “unfair labor
practice for an employee organization, its agents, or representatives, or public employees to, . . .
[f]ail to fairly represent all public employees in a bargaining unit.”
       2
         Section 4112.02 of the Ohio Revised Code provides “[i]t shall be an unlawful
discriminatory practice . . . [f]or any employer, because of the race, color, religion, sex, national
origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire,
or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or indirectly related to employment.” OHIO

                                                   4
        On January 19, 2005, Peace and Walker filed a complaint in the Northern District of Ohio

against Wellington in his official capacity as sheriff. Peace and Walker brought three separate

claims: (1) a disparate treatment claim, citing unlawful discrimination based on race in violation

of Title VII; (2) a disparate impact claim, also based on Title VII; and (3) a § 1983 claim citing

failure to promote and their demotion from the rank of corporal to the rank of deputy in violation

of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.3

        The district court held that Peace and Walker failed to establish a prima facie case of

disparate impact under Title VII. The district court also found that Peace and Walker failed to set

forth sufficient evidence to establish a genuine issue of material fact as to whether a

constitutional violation actually occurred or whether Wellington was responsible for any such

violation. Accordingly, the court granted Wellington summary judgment on both the Title VII

and § 1983 claims. On October 5, 2005, the district court dismissed with prejudice plaintiffs’

complaint in its entirety.

        Peace and Walker filed a timely notice of appeal to this court on October 24, 2005.

                                                 II.

        This court reviews the grant of summary judgment de novo. DiCarlo v. Potter, 358 F.3d

408, 414 (6th Cir. 2004). Summary judgment is appropriate if “the pleadings, depositions,



REV . CODE   ANN . § 4112.02(A).
        3
        Peace and Walker limit their appeal to their Title VII disparate impact claim and § 1983
claim. Issues raised in the district court, yet not raised on appeal, are considered abandoned and
not reviewable on appeal. Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Dixon v.
Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004).

                                                  5
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 judgment

as a matter of law.” Fed. R. Civ. P. 56(c). If, on the other hand, “a reasonable jury could return a

verdict for the nonmoving party,” summary judgment for the moving party is inappropriate.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the district court's

decision, this court draws all justifiable inferences in favor of the non-moving party. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin[.]” 42

U.S.C. § 2000e-2(a)(1). There are two principal means of proving employer discrimination under

Title VII: disparate treatment and disparate impact. Huguley v. Gen. Motors Corp., 52 F.3d

1364, 1370 (6th Cir. 1995). As previously noted, we deal only with a disparate impact claim in

this appeal.

       Disparate impact causes of action penalize employment practices that are “fair in form

but discriminatory in operation.” Phillips v. Cohen, 400 F.3d 388, 397 (6th Cir. 2005) (internal

quotation marks and citation omitted). Accordingly, the disparate impact analysis is intended to

ensure that employers do not use seemingly neutral decision-making mechanisms that in actuality

tend to eliminate a greater portion of otherwise qualified members of a protected group than they

do members of other groups. Id. Unlike disparate treatment, disparate impact does not require a

showing of discriminatory motive, as the claim “is based on statistical evidence of systematic


                                                 6
discrimination (i.e., a pattern or practice which results in discrimination).” Huguley, 52 F.3d at

1370.

         The Supreme Court has established a three-part burden-shifting test to determine whether

an unlawful disparate impact exists. Albermarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);

Kovacevich v. Kent State Univ., 224 F.3d 806, 830 (6th Cir. 2000). First, the plaintiff must

establish a prima facie case of discrimination, i.e., “that an adverse impact has actually

occurred.” Isabel v. City of Memphis, 404 F.3d 404, 411 (6th Cir. 2005). If the plaintiff

establishes a prima facie case, the employer must then show that the protocol in question has a

“manifest relationship to the employment,” referred to as the “business justification.” Id.; Griggs

v. Duke Power Co., 401 U.S. 424, 431 (1971). If the employer demonstrates such a business

justification, the plaintiff must then show that other potential tests or selection protocols would

serve the employer’s interest without creating the undesirable discriminatory effect. Albermarle,

422 U.S. at 425; Isabel, 404 F.3d at 411.

         Accordingly, Peace and Walker must first establish a prima facie case of discriminatory

impact. To do so, Peace and Walker must: (1) identify a specific employment practice to be

challenged; and (2) demonstrate an “adverse effect” by offering statistical evidence “of a kind or

degree sufficient to show that the practice in question has caused the adverse effect in question.”

Kovacevich, 224 F.3d at 830 (quoting Scales v. J.C. Bradford and Co., 925 F.2d 901, 908 (6th

Cir. 1991)); see also Johnson v. U.S. Dept. of Health and Human Servs., 30 F.3d 45, 48 (6th Cir.

1994).

         The Supreme Court has not specified the type or types of statistical evidence upon which

                                                  7
courts should rely. Isabel, 404 F.3d at 412. A plaintiff who presents a statistical analysis of a

challenged practice under Title VII need not rule out all other potential variables nor prove

discrimination with scientific certainty, Alexander v. Local 496, Laborers’ Int’l Union of N. Am.,

177 F.3d 394, 406 (6th Cir. 1999), but a plaintiff must prove discrimination by a preponderance

of the evidence. Bazemore v. Friday, 478 U.S. 385, 400-01 (1986) (finding that the persuasive

force of a plaintiffs’ statistical regression analysis “will depend in a given case on the factual

context of each case in light of all the evidence presented by both the plaintiff and the

defendant.”).

       Peace and Walker offer virtually no statistical substantiation for their disparate impact

claim. Plaintiffs’ brief includes only two substantive sentences regarding disparate impact, and

both are conclusory. Brief of Plaintiff-Appellants at 10. Peace and Walker emphasize that “75%

of those demoted to deputy were African-American.” Id. Without more, however, it is

impossible to determine whether the promotion examination in fact resulted in a disparate

impact. Peace and Walker offer no evidence regarding the other corporals who took the

promotion examination; we can only speculate that one of the two other corporals who failed the

examination was African-American, based on the statement in the brief. Further, Peace and

Walker put forth no data regarding the deputies who took the promotion examination or of the

total pool of test-takers, so as to permit assessment of the overall impact of the examination.

Because the mere assertion that 75 percent of corporals who failed the examination were African-

American does not meet plaintiffs’ burden, we affirm the district court’s holding that Peace and




                                                  8
Walker failed to establish a prima facie case of disparate impact.4

                                                III.

       In Count III of their complaint, Peace and Walker allege a § 1983 equal protection claim

and cite violation of their rights under the Fourteenth Amendment of the United States

Constitution. To state a viable § 1983 claim, a plaintiff must allege that: (1) he or she was

deprived of a right, privilege, or immunity secured by the Constitution or laws of the United

States; and (2) the deprivation was caused by a person acting under the color of state law. Flagg

Bros., Inc. v. Brooks, 436 U.S. 149, 155-57 (1978); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th

Cir. 2005).

       A successful equal protection claim against a public employer for employment

discrimination requires that the plaintiff show that the employer made an adverse employment

decision “with a discriminatory intent or purpose.” Charles v. Baesler, 910 F.2d 1349, 1356-57

(6th Cir. 1990). Peace and Walker rely solely on their assertion that 75 percent of those demoted

were African-American and have not produced any evidence of discriminatory intent or purpose.

Thus, their § 1983 claim fails.

                                               IV.


       4
         Under the Supreme Court’s three-part burden-shifting test discussed above, if Peace and
Walker had established a prima facie case of disparate impact, Wellington would then be
required to show that the protocol in question has a “manifest relationship to the employment,”
referred to as the “business justification.” Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971);
Isabel v. City of Memphis, 404 F.3d 404, 411 (6th Cir. 2005). Because we find that Peace and
Walker have not established a prima facie case, we do not address the possible business
justification.

                                                 9
       For the foregoing reasons, we affirm the district court’s grant of summary judgment for

defendant Wellington.




                                               10
