                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 08a0035n.06
                               Filed: January 9, 2008

                                                Case No. 06-6435

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

 ALETHA WILLS,                                                  )
                                                                )
             Plaintiff-Appellant,                               )
                                                                )        ON APPEAL FROM THE
                    v.                                          )        UNITED STATES DISTRICT
                                                                )        COURT FOR THE WESTERN
 PENNYRILE RURAL ELECTRIC                                       )        DISTRICT OF KENTUCKY
 COOPERATIVE CORPORATION, d/b/a                                 )
 PENNYRILE RURAL ELECTRIC                                       )
 COOPERATIVE,                                                   )
                                                                )
             Defendant-Appellee.                                )

 _______________________________________

BEFORE: BATCHELDER and GILMAN, Circuit Judges; STAFFORD*, District Judge.

         ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Aletha Wills (“Wills”)

filed suit in federal court against Defendant-Appellee Pennyrile Rural Electric Cooperative

Corporation (“Pennyrile”) alleging employment discrimination based on race in violation of Title

VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2, and the Kentucky Civil Rights Act, KRS §

344.040. The district court granted summary judgment in favor of Pennyrile, finding that Wills

could not establish a prima facie case of race discrimination. Because we find that Wills failed to

present any evidence that Pennyrile subjected her to an adverse employment action, we AFFIRM.

                                                          I.


         *
         The Honorable W illiam H. Stafford, United States District Judge for the Northern District of Florida, sitting
by designation.
                                                 A.

       Wills, an African-American woman, began working at Pennyrile as a customer service

representative on July 2, 2001. She worked the 7:30am-4:30pm shift at Pennyrile, with the last 30

minutes of her shift devoted exclusively to operating the switchboard.

       At some point, Wills became involved in a volunteer capacity with the Hopkinsville Human

Relations Commission. In March 2004, Wills asked her supervisor, Vicky Palmer (“Palmer”), for

permission to leave work ten minutes early on the first Tuesday of every month for her Committee

meeting, which started at 4:30pm. Palmer relayed that request to Pennyrile President and CEO Eston

Glover (“Glover”). Glover explained to Wills that, because the first week of the month is

Pennyrile’s busiest, and because a significant number of calls come in between 4:00pm and 4:30pm,

Pennyrile could not afford to let Wills leave ten minutes early.

       Wills was upset by Glover’s refusal to allow her to leave early because Pennyrile let other

employees leave early for similar reasons. Specifically, at the time of Wills’s request, Pennyrile was

permitting Emily Pyle, a white employee, to leave work 30 minutes early on the fourth Monday of

every month to attend a museum board meeting. On October 4, 2004, however, Pennyrile stopped

the practice of allowing employees to leave work early.

       Wills filed an Equal Employment Opportunity Commission (“EEOC”) complaint on January

11, 2005, with the Hopkinsville Human Relations Commission (“Commission”), alleging race

discrimination. In an attempt to resolve the dispute, Glover met with Bernard Standard, director of

the Commission. During that meeting, Glover told Standard that Pennyrile would be willing to let

Wills leave early if the Commission would meet on a different day, during a less busy time of the

month. Glover also offered Pennyrile’s conference room, free of charge, for the Commission’s


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meetings so that Wills could get off work at 4:30pm and just walk down the hall to her meeting.

Wills refused to accept either of those alternatives, saying that the only acceptable solution would

be Pennyrile’s permitting her to leave 10 minutes early on the first Tuesday of every month.

       The Commission forwarded Wills’s complaint to the EEOC, which attempted to mediate the

dispute. Pennyrile agreed to mediation, but Wills did not. Wills informed the EEOC investigator

that she would not settle her dispute unless Pennyrile fired Glover, Palmer, and human resources

manager Michele Small. On May 13, 2005, the EEOC issued a right-to-sue letter.

                                                  B.

       Wills filed this complaint, which also contained other causes of action that are not relevant

to this appeal, on August 11, 2005. Pennyrile then filed a motion for summary judgment on all of

Wills’s claims, contending that there was no genuine issue of material fact and that Wills had not

established a prima facie case of race discrimination. The district court granted Pennyrile’s motion

for summary judgment on October 3, 2006. Wills timely appealed.

                                  II. STANDARD OF REVIEW

       We review de novo a district court’s grant of summary judgment, using the same standard

applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc).

Summary judgment is proper 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.” Fed. R. Civ.

P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the

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




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       In order to defeat a summary judgment motion, the nonmoving party must present “sufficient

evidence to create a genuine issue of material fact.” Prebilich-Holland v. Gaylord Entm’t Co., 297

F.3d 438, 442 (6th Cir. 2002) (citing Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990)).

The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby,

Inc., 447 U.S. 242, 252 (1986). That is, the nonmoving party must present evidence sufficient to

permit a reasonable jury to find in its favor. Id. Entry of summary judgment is appropriate “against

a party who fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Hartsel v. Keys, 87 F.2d 1472, 1477 (6th Cir. 1989).

                                         III. ANALYSIS

       Wills brings her action for racial discrimination in employment under both Title VII of the

1964 Civil Rights Act and the Kentucky Civil Rights Act. Title VII makes it unlawful — among

other things — for an employer to discriminate against any individual with respect to the terms,

conditions, and privileges of employment, on the basis of race. 42 U.S.C. § 2000e-2(a) (2007). We

apply the same analysis to Wills’s state and federal claims because the Kentucky Civil Rights Act

mirrors Title VII. Smith v. Leggett Wire Co., 220 F.3d 752, 738 (6th Cir. 2000) (citing Kentucky

Commission on Human Rights v. Kentucky, 586 S.W.2d 270, 271 (Ky. Ct. App. 1979)).

       Wills contends that Pennyrile’s refusal to allow her to leave work ten minutes early on the

first Tuesday of every month was because of her race. Wills has presented no direct evidence —

such as a Pennyrile policy or a specific statement by a superior — that Pennyrile’s action was

because of her race. Rather, she has attempted to prove her claim by circumstantial evidence.




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(Although her brief on appeal claims that she relies on direct evidence, the evidence she refers to is

purely circumstantial.).

       A Title VII plaintiff who has no direct evidence of racial discrimination, must follow the

burden-shifting approach set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)

and later modified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53

(1981). Wright v. Murray Guard, 455 F.3d 702, 706 (6th Cir. 2006). Hence, the plaintiff must first

establish a prima facie case of discrimination, Burdine, 450 U.S. at 252-53, and, if she succeeds in

doing so, she is entitled to a presumption that the employer discriminated against her, Dicarlo v.

Potter, 358 F.3d 408, 414 (6th Cir. 2004) (citing Burdine, 450 U.S. at 254). The burden of

production then shifts to the employer, who must articulate a legitimate, nondiscriminatory reason

for the adverse treatment of which the employee complains. Id. (internal citations omitted). If the

employer articulates a legitimate reason for its actions, the burden shifts back to the plaintiff to

demonstrate that the employer’s articulated reasons were merely a pretext, and not the true motive

for the employer’s actions. Id. at 414-15 (citing Burdine, 450 U.S. at 253). The plaintiff, however,

bears the ultimate burden of persuasion, which requires that she demonstrate by a preponderance of

the evidence that the employer acted with the intent to discriminate. St. Mary’s Honor Court v.

Hicks, 509 U.S. 502, 511 (1993). We turn first to the question of whether Wills established a prima

facie case of race discrimination.

       To establish a prima facie case of employment discrimination, Wills must show that: (1) she

was a member of a protected class at the time of the discrimination; (2) she suffered an adverse

employment action; (3) she was qualified for her position; and (4) she was treated differently than

a similarly situated, non-protected employee. Wright, 455 F.3d at 707 (citing DiCarlo, 358 F.3d at


                                                  5
415). Pennyrile does not dispute that Wills is a protected racial minority, or that Wills was qualified

for her job at the time of its refusal to allow her to leave work early. Pennyrile does dispute that it

subjected Wills to an adverse employment action and that it treated a similarly situated, non-

protected employee differently than it treated Wills.

       In order to demonstrate that Pennyrile subjected her to an adverse employment action, Wills

must show that Pennyrile changed the terms or conditions of her employment in a way that was

materially adverse to her. Hollins v. Atlantic Co., 188 F.3d 652, 662. To be materially adverse, a

change must be of the magnitude of a termination of employment, a demotion, a decrease in salary,

a material loss of benefits; it must be more than a mere inconvenience. Id. (citing Crady v. Liberty

National Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). Employment actions that

are de minimis are not materially adverse, and are not actionable under Title VII. Bowman v.

Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000).

       Wills claims that she suffered an adverse employment action because Pennyrile did not allow

her to leave work ten minutes early one day per month, which caused her to be late to the

Commission meetings. In the summary judgment proceedings before the district court, Wills cited

no case authority in support of the proposition that requiring an employee to work the regular hours

of her job, with the result that the employee must be late to a voluntary community service meeting,

is an adverse employment action. Nor does Wills provide any case law in support of that proposition

in her brief on appeal. Wills’s brief on appeal not only fails to cite a single case even discussing

adverse actions by employers, it is entirely devoid of authority and argument regarding this element

of the prima facie case.




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       The district court held that Pennyrile’s refusal to permit Wills to leave ten minutes early one

day each month was an inconvenience at most, and was not an adverse employment action. The

court therefore concluded that Wills had failed to establish that element of her prima facie case. We

find no error in the district court’s conclusion; indeed, in our view, the action of which Wills

complains may not rise to the level of de minimis.

       Because Wills cannot show that she suffered an adverse employment action, she cannot

establish a prima facie case of race discrimination. We therefore hold that the district court correctly

granted summary judgment to Pennyrile.

                                        IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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