              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 14a0893n.06

                                 Case No. 13-6603
                                                                        FILED
                        UNITED STATES COURT OF APPEALS               Dec 03, 2014
                                                                DEBORAH S. HUNT, Clerk
                             FOR THE SIXTH CIRCUIT


KARL TARTT,                                )
                                           )
      Plaintiff-Appellant,                 )
                                           )        ON APPEAL FROM THE UNITED
v.                                         )        STATES DISTRICT COURT FOR
                                           )        THE MIDDLE DISTRICT OF
WILSON COUNTY, TENNESSEE,                  )        TENNESSEE
                                           )
      Defendant-Appellee.                  )
                                           )
                                           )


BEFORE: MERRITT, WHITE, and DONALD, Circuit Judges.

      BERNICE BOUIE DONALD, Circuit Judge. Appellant Karl Tartt sued

Wilson County, Tennessee for refusing to hire him under alleged discriminatory

policies prohibited by Title VII of the Civil Rights Act of 1964 and the Tennessee

Human Rights Act. In December 2008, Tartt submitted a job application to the

Wilson County Animal Control department, indicating he was interested in

“Animal Control/open position.”     When the co-located Solid Waste Disposal

department hired white applicants the following year, Tartt filed a Charge of

Discrimination against the County with the Equal Employment Opportunity
Case No. 13-6603
Tartt v. Wilson Cnty., Tenn.

Commission in August 2009. He filed this suit in federal court soon thereafter.

Wilson County moved for summary judgment, arguing that Tartt had not

established a prima facie case under either the disparate-treatment or disparate-

impact theories of discrimination under Title VII. The district court agreed, and

granted the County summary judgment on all of Tartt’s claims. For the reasons

that follow, we AFFIRM.

                               I.   BACKGROUND

       A.      Factual Background

       Appellant Karl Tartt1 lives in Rutherford County, Tennessee.      Appellee

Wilson County, located just north of Rutherford County, operates a landfill. Two

of Wilson County’s departments have offices at the landfill site: Animal Control

and Solid Waste Disposal. According to a signed charge filed with the Equal

Employment Opportunity Commission (“EEOC”), Tartt went to the landfill offices

in December 2008 “to apply for the job of animal control officer.” (R.110-2,

Page ID #1614. See also R.1, Page ID #11 and R.13, Page ID #76.) Heather

Christian, the receptionist, greeted him. Tartt secretly recorded his conversation

with Christian as well as conversations he had with other employees at the site

thereafter.    (R.49-1, Page ID #609.)     Tartt requested a job application, and

Christian asked him, “What do you want, Animal Control or. . .” and Tartt replied,
1
 There were two plaintiffs in the case before the district court. Plaintiff Cedric
Jennings chose not to appeal.
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“Yes.” (Id. at Page ID #611 (omission in original)). The office has separate

applications for Animal Control positions and for Solid Waste positions. Tartt

filled out an application for Animal Control, writing at the top, “Animal

Control/open position.” (Id.) He asked if his application would be kept on file if

he did not get the position, and Christian responded that it would.         (R.53-1,

Page ID #641.) Tartt returned his completed application and left.2

       The following month, Tartt called three times to ask about the status of his

application. (R.53-1, Page ID #643-47.) He recorded each call. On two of these

calls, Tartt reiterated he was interested in a job in Animal Control. (Id. at Page ID

#643, 646.) During his final call, he was connected with Cindy Lynch, who

manages hiring for both Animal Control and Solid Waste Disposal. She asked

what position he was interested in, and he responded that he had applied for

Animal Control. (Id. at 646.) Lynch told him that while they would accept

applications any time, they did not presently have any positions open. (Id.) Tartt

told Lynch there had been an open position when he applied. (Id.) She responded

that the last open position had been open six or seven months prior. (Id. at Page ID

2
 As noted by the district court, neither Tartt nor Wilson County has retained a copy
of his application. Tartt stated he received a copy at the time he applied, but that
he could not locate it later. (R.49-1, Page ID #611.) Tartt also stated that he
“thought he sent it to his attorney,” but counsel could not locate it. (Id.) Despite
policies mandating that departments retain copies of employment applications,
Wilson County has not presented a copy of the application from its records. (R.26,
Page ID #251.)
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#646-47.) Tartt asked if the Department still had his application on file; Lynch

replied that the applications were kept at another location, and assured him she

would check. (Id. at Page ID #647.)

         Before Tartt submitted his application in December 2008, the most recent

open position in Animal Control had been in July 2008. (R.26, Page ID #250.)

That position was advertised in a local newspaper in August 2008. (Id.) In

September 2008, the Department hired Nick Forbes on a part-time basis and

promoted him to full-time status the following month. (Id. at Page ID # 251.)

Forbes continued in this capacity as late as May 2012, and the department has not

hired another Animal Control Officer since his hiring. (Id.)

         B.    Procedural History

         Tartt filed a Charge of Discrimination against Wilson County with the

EEOC in August 2009. (R.110-2, Page ID #1614.) In December 2009, Tartt and

another plaintiff3 filed this action against the county in federal court, alleging

claims of race discrimination under both disparate-treatment and disparate-impact

theories in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the

Tennessee Human Rights Act (“THRA”), and 42 U.S.C. §§ 1981 and 1983.

(R.1, Page ID #15-17.) Plaintiffs also sought class certification regarding their

disparate-impact claims, which the court ultimately denied. Wilson County sought

3
    See supra note 1.
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summary judgment on the remaining individual claims, which the district court

granted. Tartt now appeals.

                                II.    ANALYSIS

       A.      Standard of Review

       We review de novo a district court’s grant of summary judgment. Loyd v.

St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014) (citing Kalich v.

AT&T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012)). Summary judgment is

properly granted if the record, construed in the light most favorable to the non-

moving party, presents no genuine issue of material fact and the movant is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a); Jones v. Sandusky Cnty.,

541 F. App’x 653, 659 (6th Cir. 2013) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986)). Material facts for summary judgment purposes are

those “that might affect the outcome of the suit under the governing law.” Jones,

541 F. App’x at 659 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)

(internal quotation marks omitted)).

       The movant bears the initial burden of demonstrating that no genuine issue

exists regarding a material fact. Harvey v. Campbell Cnty., 453 F. App’x 557, 560

(6th Cir. 2011) (citing Celotex Corp., 477 U.S. at 323). The nonmoving party must

then set forth specific facts to show that a material fact is in dispute.

Fed. R. Civ. P. 56(c). A dispute exists “if the evidence is such that a reasonable

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jury could return a verdict for the nonmoving party.” Jones, 541 F. App’x at 659

(quoting Anderson, 477 U.S. at 248). Thus, the fact in question must be essential

to the cause of action at bar; “[t]he mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment.” Flones v. Beaumont Health Sys., 567 F. App’x 399, 404

(6th Cir. 2014) (emphasis removed) (internal quotation marks omitted) (citing

Anderson, 477 U.S. at 247-48).

       B.      Disparate-treatment claim under Title VII4

       Wilson County is entitled to summary judgment on Tartt’s disparate-

treatment claim under Title VII because he fails to establish a prima facie case of

discrimination. Title VII prohibits employers from failing or refusing to hire any

individual “because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). Courts have recognized two types of claims

under Title VII: disparate-treatment claims and disparate-impact claims.

Serrano v. Cintas Corp., 699 F.3d 884, 892 (6th Cir. 2012) (quoting Huguley v.

Gen. Motors Corp., 52 F.3d 1364, 1370 (6th Cir. 1995)). Disparate-treatment

claims      involve intentionally discriminatory employment       practices.     Id.

4
 Tartt also brought his claims under 42 U.S.C. §§ 1981 and 1983. The elements of
a prima facie case and the burden-shifting framework followed by courts in
adjudicating such claims are the same as those in cases under Title VII. See, e.g.,
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993). We therefore
proceed with the Title VII analysis for both sets of claims.
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Accordingly, a plaintiff asserting a disparate-treatment claim must prove an

employer’s discriminatory motive and connect that motive to a particular adverse

employment decision.           Id. (citing Int’l Bhd. of Teamsters v. United States,

431 U.S. 324, 335-36 n.15 (1977)). A plaintiff may prove discriminatory intent

through direct or circumstantial evidence. Id. (citing Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 511-12 (2002); Foster v. Cuyahoga Cnty. Bd. of Comm’rs, No. 97-

3504, 1998 WL 57481, at *1 (6th Cir. Feb. 3, 1998)).


       Where a plaintiff seeks to prove discriminatory intent based solely on

circumstantial evidence, we apply the three-step, burden-shifting framework of

McDonnell Douglas Corp. v. Green. Laster v. City of Kalamazoo, 746 F.3d 714,

726 (6th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

04 (1973)). Under this framework, a plaintiff must first establish a prima facie

case of discrimination. McDonnell Douglas, 411 U.S. at 802. If he is successful,

then the employer must respond with a legitimate, non-discriminatory reason for

the adverse action in question. Id. The burden then shifts back to the plaintiff to

show that the employer’s stated reason is merely a pretext for discrimination. Id.

at 804. The elements of a prima facie case will depend on the particular facts

underlying a plaintiff’s claim, id. at 802 n.13, and “the key question is always

whether . . . the plaintiff has presented sufficient evidence that he or she suffered

an adverse employment action under circumstances which give rise to an inference
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of unlawful discrimination,” Thompson v. UHHS Richmond Heights Hosp., Inc.,

372 F. App’x 620, 624 (6th Cir. 2010) (quoting Clay v. United Parcel Serv., Inc.,

501 F.3d 695, 703 (6th Cir. 2007) (internal quotation marks omitted)).


       To establish a prima facie case of discrimination here, Tartt must show

“(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a

job for which [Wilson County] was seeking applicants; (iii) that, despite his

qualifications, he was rejected; and (iv) that, after his rejection, the position

remained open and [Wilson County] continued to seek applicants from persons of

[Tartt’s] qualifications.” McDonnell Douglas, 411 U.S. at 802 (emphasis added).

       It is undisputed that Tartt meets the first prong of the test. As an African-

American, he is a member of a racial minority. However, Tartt does not show that

he “applied and was qualified for a position for which [Wilson County] was

seeking applicants,” and thus fails to establish the second prong of the test. Id.

       The uncontroverted evidence shows that Wilson County did not have an

open position in Animal Control at the time Tartt applied in December 2008. The

County had filled the most recent opening three months prior, and there were no

further vacancies until nearly two years later, when Animal Control advertised for

a new director in October 2010. Tartt presents no evidence that Animal Control

had an open position or was seeking applicants when he applied “for the job of

animal control officer” in 2008. (R.110-2, Page ID #1614.)
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       Tartt counters that he applied for any open position the County may have

had, including those that became available in Solid Waste Disposal in the months

following his application. (R.18, Page ID #164.) He supports this interpretation

with the facts that he wrote “Animal Control/open position” at the top of his

application and that he asked more than once if his application was still on file.

Even taking both these facts into account, the record clearly demonstrates that Tartt

applied for a position in Animal Control in December 2008. When he first arrived

at the Department offices, he was asked which application he wanted to fill out,

because there was more than one; he chose the application for Animal Control. On

his follow-up calls, he reiterated his interest in a job for Animal Control. Though

duly informed there were separate applications, Tartt neither mentioned nor

requested an application for a position in Solid Waste Disposal, either in person in

December 2008 or during any of his three phone calls in 2009. All references to

keeping his resume on file took place in the context of a conversation about an

Animal Control position.

       Tartt also specified that he applied for Animal Control in both his EEOC

charge and his first two complaints in this litigation. (R.110-2, Page ID #1614;

R.1, Page ID #11; and R.13, Page ID #76.) These documents contradict his current

argument that he intended to be considered “for any open position.” (Appellant

Br. 37 (emphasis in original).) The Supreme Court has stated that “a party cannot

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create a genuine issue of fact sufficient to survive summary judgment simply by

contradicting his or her own previous sworn statement . . . without explaining the

contradiction.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999).

In his third complaint and now on appeal, Tartt states that the omission was

because “there is not enough room on a[n EEOC] charge sheet to relay all facts of

a case.” (Appellant Reply Br. 3.) While it is true he had to summarize his overall

argument, in a failure-to-hire claim for discrimination, the position(s) for which

plaintiff applies are a fundamental aspect of the claim. Failure to even mention

them in not one, but three documents in the same case strongly suggests Tartt did

not intend to apply outside the Animal Control department when he submitted his

application. And, his subjective intent cannot overcome the absence of any notice

to the County that he sought a position in the Solid Waste Disposal department.

       The Animal Control department only had one opening in the period between

December 2008 and the filing of this case. The district court rightly observed that

“Tartt’s observation that the Animal Control Department posted an opening for a

Director in October 2010 . . . is a red herring. . . . Tartt applied for a position as an

Animal Control Officer, not the Director of the Department.               Among other

problems with Tartt’s argument, Tartt has not shown that he was qualified for the

Director position, which requires [among other things] an applicant to possess and

maintain a valid euthanasia certification.” (R.118, Page ID #3809.)

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         Based on the record, Tartt cannot show that he “applied and was qualified

for a job for which [Wilson County] was seeking applicants.”             McDonnell

Douglas, 411 U.S. at 802.        He has not established a prima facie case of

discrimination under a disparate-treatment theory under Title VII. Accordingly,

Wilson County is entitled to summary judgment.

         C.    Disparate-impact claim under Title VII5

         Tartt bases his disparate-impact claim on “Wilson County’s policy and

practice of not advertising job openings and instead refering [sic] such jobs to

white friends and families.” (Appellant Br. 33.) Wilson County is also entitled to

summary judgment on Tartt’s disparate-impact claim under Title VII because he

fails to identify with particularity how he personally has been harmed by the

County’s alleged discriminatory practices.       “Title VII prohibits employment

practices that are ‘fair in form but discriminatory in action.’” Dunlap v. Tenn.

Valley Auth., 519 F.3d 626, 629 (6th Cir. 2008) (quoting Griggs v. Duke Power

Co., 401 U.S. 424, 431 (1971)).       While disparate-treatment claims require a

showing of an employer’s discriminatory intent, disparate-impact claims do not.

Id. Instead, a plaintiff must show that “a facially neutral employment practice falls

more harshly on one group than another and that the practice is not justified by




5
    See supra note 4.
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business necessity.” Id. (citing Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 92

(6th Cir. 1982)).

       Disparate-impact claims are evaluated under a three-part, burden-shifting

framework.      See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);

Dunlap, 519 F.3d at 629. Under this framework, a plaintiff must first establish a

prima facie case of discrimination. Albemarle, 422 U.S. at 425. “If he succeeds,

the employer must show that the protocol in question has ‘a manifest relationship

to the employment’—the so-called ‘business necessity’ justification.” Dunlap,

519 F.3d at 629 (citing Griggs, 401 U.S. at 431). The plaintiff must then show that

other methods could accomplish the same goals “without creating the

discriminatory effect.” Id. (citing Albemarle, 422 U.S. at 425).

       To establish a prima facie case of discrimination on a disparate-impact

theory, a plaintiff must 1) identify a specific employment practice to be challenged

and 2) prove through relevant statistical analysis that the challenged practice has an

adverse impact on a protected group. Id. (citing Johnson v. U.S. Dep’t of Health &

Human Servs., 30 F.3d 45, 48 (6th Cir. 1994)). We have found that, under the

basic principles of legal standing, the plaintiff must also have “‘a personal stake in

the outcome of the controversy’ and that the plaintiff must have suffered some real

or threatened injury.” Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 577

(6th Cir. 2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Thus, a

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plaintiff making an individual disparate-impact claim for discrimination must show

“that the challenged policy directly disadvantaged him in some fashion.”           Id.

(citing Bowdish v. Cont’l Accessories, Inc., No. 91-1548, 1992 WL 133022, at *5

(6th Cir. June 12, 1992) (“An individual plaintiff in an employment discrimination

case must present some evidence that demonstrates that his or her individual

discharge was the result of discrimination.” (emphasis in original)) (holding that

“[w]hatever the validity of [plaintiffs’] disparate impact claims . . . the plaintiffs

[could] not show that the policies injured them personally, and therefore their

claim must fail”).

       The district court found against Tartt and entered summary judgment for

Wilson County on the basis of this last requirement. While Tartt alleges a number

of instances of racial discrimination perpetrated by officers of Wilson County, he

does not show that he a) applied for a position outside the Animal Control

department—in which there were no open positions when he applied or for months

thereafter—or b) that the County’s alleged racist practices injured him in some

concrete way.       Tartt thus lacks standing to proceed under a disparate-impact

theory.

       On appeal, Tartt urges us to relax the requirements for a prima facie case.

He argues that under the district court’s analysis, it would be impossible for him to

establish standing. The County does not advertise most job openings; instead, it

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fills vacancies through nepotism and by word-of-mouth. Without advertisement,

Tartt could not reasonably have known of other available positions and have

applied for them. As such, he was denied a fair opportunity to compete for those

jobs, and was never able to reach the stage of a concrete adverse employment

decision.

       It is true that other circuits have modified the standards for a prima facie

case where, as here, “the hiring process itself, rather than just the decision-making

behind the process, is implicated in the discrimination claim or is otherwise

suspect.” E.E.O.C. v. Metal Servs. Co., 892 F.2d 341, 349 (3d Cir. 1990). Tartt

cites a number of cases in other jurisdictions that have relaxed one or another

element of the prima facie case to allow plaintiffs to survive summary judgment or

other preliminary dispositions of their case. However, we note that in each case—

including cases that Tartt cites—the court took leave to do so explicitly based on

specific evidence of the impact the alleged practices had on the plaintiffs in the

case. See, e.g., Gaines v. Boston, 998 F. Supp. 91, 108 (D. Mass 1998) (finding

certain plaintiffs could challenge a company’s policy of hiring friends and family

of current, white staffers and using a separate hiring process for those applicants);

Metal Servs. Co., 892 F.2d at 350 (finding in a disparate treatment case that

plaintiffs established a prima facie case where they had applied to specific

positions through appropriate channels and were repeatedly passed over for white

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applicants who were hired by word of mouth); Carmichael v. Birmingham Saw

Works, 738 F.2d 1126, 1133 (11th Cir. 1984) (finding in a disparate treatment case

that an employer “has a duty to consider all those who might reasonably be

interested” where the record clearly showed that the plaintiff had repeatedly

communicated his interest in a specific job to the employer and the employer used

informal means to hire for open positions); Cox v. Am. Cast Iron Pipe Co.,

784 F.2d 1546, 1560 (11th Cir. 1986) (“[N]onapplicants may be entitled to relief

where the employer’s clear policy of exclusion would make an application a

useless exercise[, but that result] requires two distinct determinations: that the

nonapplicant would have applied but for discrimination and that he would have

been discriminatorily rejected had he applied.” (quoting Teamsters, 431 U.S. at

367-68)).

       Taken together, these cases demonstrate that loosening the requirements of

the prima facie case can at times be necessary to obtain justice under Title VII.

However, Tartt has not presented evidence that he has such a case. As the district

court concluded, Tartt applied for a position that was advertised; this was the sole

position for which he applied. We therefore affirm the district court’s grant of

summary judgment to Wilson County on the disparate-impact claim.




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       D.      Application under the Tennessee Human Rights Act

       Tartt also alleged discrimination under the THRA. Specifically, Tartt argues

that we must employ the summary judgment standard articulated by the Supreme

Court of Tennessee in Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn.

2010). Under Gossett, “a party moving for summary judgment must produce

evidence or refer to evidence in the record that affirmatively negates an essential

element of the nonmoving party’s claim or shows that the nonmoving party cannot

prove an essential element of the claim at trial.” Id. at 782 (quoting Mills v.

CSX Transp., Inc., 300 S.W.3d 627, 631 (Tenn. 2009) (internal quotation marks

omitted)). The district court found this argument to be moot, because soon after

Gossett was published, the Tennessee state legislature abrogated the case by

statute. See Tenn. Code Ann. § 4-21-311(e). On appeal, Tartt responds that the

legislature explicitly intended for the law to apply to “causes of action accruing on

or after June 10, 2011.” See Weaver v. Diversicare Leasing Corp., No. E2013-

01560-COA-R3CV, 2014 WL 3734579 (Tenn. Ct. App. July 28, 2014) (citing

2011 Tenn. Pub. Acts 461; Coleman v. Humane Society of Memphis, No. W2012–

02687–COA–R9–CV, 2014 WL 587010 at *8 n. 7 (Tenn. Ct. App. Feb. 14, 2014)).

In this case, Tartt’s causes of action accrued no later than August 2009, when he

filed his complaint with the EEOC. Under the fundamentals of Erie Doctrine, he



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says, we must therefore apply Gossett’s summary judgment framework in

evaluating Wilson County’s motion.

       Tartt’s argument is unavailing. We have already considered cases similar to

Tartt’s and found that federal law—i.e., the McDonnell Douglas framework—

applies. See Scola v. Publix Supermarkets, Inc., 557 F. App’x 458, 463-65 (6th Cir.

2014) (holding that while a plaintiff’s THRA cause of action accrued before

Gossett had been abrogated, the Gossett standard was procedural, and therefore the

federal McDonnell Douglas standard was appropriate for a federal court sitting in

diversity). We have therefore properly addressed Tartt’s THRA claims under the

Title VII analysis above, and affirm the district court’s finding that the Gossett

standard does not apply in Tartt’s case.

                               III.   CONCLUSION
       For the reasons stated above, we AFFIRM the district court’s grant of

summary judgment in favor of Wilson County.




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