                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0593n.06

                                           No. 13-6433


                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                             Aug 04, 2014
                                                                             DEBORAH S. HUNT, Clerk
PAT CHANDLER,

       Plaintiff-Appellant,
v.
                                                      ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
REGIONS BANK,
                                                      MIDDLE DISTRICT OF TENNESSEE
       Defendant-Appellee.




BEFORE:        KEITH, CLAY, and McKEAGUE, Circuit Judges.

       CLAY, Circuit Judge.       Plaintiff Pat Chandler appeals the district court’s grant of

summary judgment in favor of Plaintiff’s former employer, Defendant Regions Bank, on

Plaintiff’s gender discrimination and retaliation claims. Plaintiff alleges that Defendant violated

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e (“Title VII”), and the Tennessee

Human Rights Act, Tenn. Code. Ann. § 4-21-101, et. seq. (“THRA”) by implementing

employment practices that favor female employees, and by retaliating against Plaintiff for

complaining about this alleged discrimination. For the reasons that follow, we AFFIRM the

district court’s grant of summary judgment in favor of Defendant.

                                        BACKGROUND

       Plaintiff worked as a Mortgage Loan Originator (“MLO”) at Defendant Regions Bank

from November 2008 until his resignation in June 2011. In this position, Plaintiff’s duties
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included generating mortgage leads, assisting customers with selecting among the various loan

programs, and gathering required documentation to complete the mortgage loan application.

Plaintiff was also responsible for submitting the completed mortgage application to a loan

processor and underwriter, who finalized and closed the loan.

       Defendant maintains line of business (“LOB”) relationships between MLOs and its bank

branches. At the time he was hired, Plaintiff was assigned three branches in the Rutherford

County Mortgage Production Office. After one of Plaintiff’s branches closed, Plaintiff was left

with two branches.     Plaintiff contends that branch allocations were made at the ultimate

discretion of Gayle Kindig. The number of branches assigned to each MLO varies, and appears

to range from as few as one to as many as nine.

       In December 2010, Plaintiff sent an e-mail to his supervisor, Joseph Campopiano, in

which he requested a change in his branch assignments. Plaintiff wrote that, in order to meet his

minimum production standards, he would either need to be assigned additional branches to

increase his volume, or be transferred to a more affluent area with a higher average loan amount.

Plaintiff specifically requested that he be assigned to a large branch in Goodlettsville, Tennessee,

where there was a vacancy. Defendant assigned Plaintiff to a “small rural branch” in Franklin,

Kentucky.    Plaintiff considered the Franklin branch to be a “booby door prize.”               The

Goodlettsville branch was allocated to Lee Mingo, a male MLO.

       Plaintiff felt that the allocation of branches at Regions was inequitable and

discriminatory. He complained that male MLOs received fewer, and less desirable, branch

assignments than certain female MLOs. Plaintiff contends female employees sometimes had two

or three times more branches assigned to them as male employees. Sandy Glass, a female MLO,

had nine branches assigned to her, while Plaintiff at one time had only two. Plaintiff also



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contends that female MLOs Debbie Large and Becky Lynch had a greater number of branches

than Plaintiff. Neither party has submitted any data regarding the actual number of branches

assigned to any MLO, other than the deposition testimony of Ellie Teed, who testified that she

had three branches as of the date of her deposition, but had, at other times during her

employment, been assigned as few as one branch.

       Plaintiff also took issue with Defendant’s system for “internal referrals”––branch

employees’ referral of walk-in customers. Defendant employs an “open architecture” referral

system, meaning that branch employees are permitted to refer potential mortgage customers to

any MLO in the company, and not obligated to send referrals to the MLO assigned their

particular branch. Branch employees receive a small incentive for making internal mortgage

referrals, but the amount of the incentive is the same regardless of to which MLO they refer the

potential customer.

       Joyce Mungle, the branch manager at one of Plaintiff’s assigned branches, typically

referred potential loan customers to Ellie Teed, a female MLO, rather than to Plaintiff. Mungle

testified that she referred potential loan customers to Teed instead of Plaintiff because she had

received complaints about Plaintiff’s customer service. Plaintiff disputes the contention that he

provided poor customer service, and contends that he had a stellar customer service ranking.

Campopiano testified that Plaintiff received positive reviews on customer feedback surveys, and

received a score of 100% for customer service in the year 2010. However, Campopiano also

testified that he had, at one time, discussed with Plaintiff his concern that branch managers

thought “customers were getting gouged” by Plaintiff’s aggressive approach to overage charges.

Plaintiff allegedly replied that it was not the branch managers’ responsibility to worry about how

much money he made or what he charged the customers.



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        Plaintiff alleges that the internal referral system at Regions was inherently flawed

because it allowed female branch employees to favor female MLOs at the expense of male

MLOs.      Plaintiff contends that Defendant “fostered an environment of discrimination by

allowing branch managers and employees to refer customers to any MLO, or their favorite MLO,

all the while maintaining that a certain MLO was responsible for each branch.” (R. 42, Response

at 580.)     Plaintiff submits that the “open architecture” referral system “was ripe for

discrimination and it was evident that at least one female employee was referring customers

exclusively to a female MLO, and was permitted to do so.” (Id.)

        Around December 2010, Plaintiff filed a formal complaint with Joseph Campopiano,

Chuck Mander, and Gayle Kindig about the discriminatory assignment of branches as well as the

encouraging of employees at his branch to send leads to female MLOs. Plaintiff then filed

another complaint with Human Resources about the discriminatory practices, and alleges that no

corrective action was taken. On March 3, 2011, the Area Human Resources Manager, Marlene

Akin, met with Plaintiff to discuss his complaints. Akin told Plaintiff that she would look into

his complaints and follow up with him.

        On March 22, 2011, Plaintiff filed an EEOC Charge. He filed a second EEOC Charge on

April 13, 2011. Near the end of April 2011, Campopiano was terminated, and Gayle Kindig

replaced Campopiano as Plaintiff’s direct supervisor.      In one of her initial meetings with

Plaintiff, Kindig informed Plaintiff that she was aware that he had filed a charge with the EEOC.

        Plaintiff contends that the loan approval process became “more hostile” prior to his

resignation in June 2011, and submits that his loans were being “slow walked” through the

process, meaning that his loans took an exceptionally long time to close after he submitted loan

applications to the loan processor. Plaintiff ultimately resigned on June 16, 2011; he contends



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that his resignation was constructive discharge. Plaintiff also alleges that Defendant sabotaged

his job application at a future place of employment by indicating that Plaintiff was “ineligible for

rehire” and giving him a poor review.

       Plaintiff filed a complaint against Defendant in the Middle District of Tennessee on July

24, 2012, alleging violations of Title VII, THRA, and the Civil Rights Act of 1991.1 On August

2, 2013, Defendant filed a motion for summary judgment. Plaintiff filed a response opposing

Defendant’s motion for summary judgment on September 4, 2013, and Defendant filed its reply

twenty days later. On October 1, 2013, the district court granted Defendant’s motion for

summary judgment. Plaintiff timely appealed. On appeal, Plaintiff challenges only the dismissal

of his retaliation and disparate impact discrimination claims.

                                                  DISCUSSION

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

Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). In evaluating Defendant’s motion for summary

judgment, we accept Plaintiff’s evidence as true, and draw all reasonable inferences in Plaintiff’s

favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is

appropriate when the evidence is so lacking or one-sided that a reasonable jury could arrive at

only one conclusion. Id. at 251–52. “The ultimate question is whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Laster, 746 F.3d at 726 (internal quotation marks and

citations omitted.) However, “[t]he mere existence of a scintilla of evidence in support of the

plaintiff’s position is insufficient; there must be evidence on which the jury could reasonably

find for the plaintiff.” Anderson, 477 U.S. at 252.



       1
           Plaintiff initially pled a hostile work environment claim, but that claim was later dropped.

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       1. TITLE VII DISPARATE IMPACT DISCRIMINATION CLAIM

       To establish a prima facie case of discrimination under the disparate impact theory, “a

plaintiff must: (1) identify a specific employment practice; and (2) present data indicating that

the specific practice had an adverse impact on a protected group.” Davis, 717 F.3d at 494; see

also Dunlap v. Tennessee Valley Authority, 519 F.3d 626, 629 (6th Cir. 2008) (describing the

second element as: “the plaintiff . . . through relevant statistical analysis proves that the

challenged practice has an adverse impact on a protected group.”). Plaintiff satisfied the first

element by identifying two specific employment practices: 1) the allegedly arbitrary assignment

of branches, and 2) the allegedly flawed “open architecture” internal referral system. However,

Plaintiff’s claim falls short on the second element because Plaintiff has presented virtually no

statistical data or other evidence indicating that these specific practices had an adverse impact on

male MLOs.

       The evidence in this case consists of: 1) the affidavit of Human Resources professional

Rena Ramsey, and attached exhibit (a compilation of internal referral data); and 2) deposition

testimony from Plaintiff, Chuck Mader, Joseph Campopiano, Gayle Kindig, Ellie Teed, and

Joyce Mungle. The only statistical evidence presented with regard to the internal referral policy

is Exhibit A––a spreadsheet tallying the total number of internal referrals received by each MLO.

As the district court correctly observed, “the numbers of referrals do not reflect a noticeable

discrepancy between male and female MLOs.” Chandler v. Regions Bank, No. 3-12-0767, 2013

WL 5503139 at *3 (M.D. Tenn. Oct. 1, 2013). To the contrary, as Rena Ramsey stated in her

sworn affidavit, Defendant’s “records for the period in question do not indicate that female

MLOs, as a group, are being treated differently from male MLOs, as a group, with respect to

internal referrals within the Rutherford County group.” (R. 33-9, Ex. 9, at 407.) Apart from



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Exhibit A and his own deposition testimony, Plaintiff did not submit any other evidence––

statistical or otherwise––to support his claim that male MLOs are disproportionately

disadvantaged by the internal referral policies.      Similarly, Plaintiff has not submitted any

statistical evidence or other data about branch allocations apart from the testimony of Ellie Teed

and himself. The deposition testimony does not support the finding that the discretionary system

of branch allocations had a disparate impact on males. In fact, Ellie Teed testified that she was

allotted fewer branches than Plaintiff. Plaintiff’s unsupported contention that certain female

MLOs were assigned to a greater number of branches is insufficient to satisfy Plaintiff’s burden

of production. Without more evidence to support Plaintiff’s allegation that the system of branch

allocations had a disparate impact on male MLOs, a jury could not find that the system was

discriminatory.

       Plaintiff argues that the law does not require that he present statistics in order to make a

prima facie showing on his disparate impact claim. In Lynch, we held that a plaintiff was “not

required to prove her case by statistics.” 817 F.2d at 387. We observed: “Both §§ 703(a)(1) and

(a)(2) speak in terms of ‘any individual.’ The focus of § 703(a)(1) is discriminatory treatment of

any individual, and of § 703(a)(2) discriminatory consequences,” id. at 388, and stated: “While

Title VII plaintiffs may be able to prove some disparate impact cases by statistics, that is not the

only avenue available,” id. at 387–88. In Lynch, the plaintiff presented credible expert testimony

explaining the disparate impact on female employees, which served as an alternative “avenue” to

support the plaintiff’s claim. In this case, unlike Lynch, not only did Plaintiff present no

statistical evidence to support his claim, but he presented no evidence of any kind to support a

jury finding that the specified policies had a disparate impact on male employees. Moreover,

Plaintiff has not alleged that Defendant withheld this information, and has provided no other



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reason for this Court to overlook the paucity of evidence in this case. Accordingly, the district

court properly dismissed this claim.

       It is true that “[t]he evidentiary requirements of a prima facie case of discrimination are

not onerous.” Lynch v. Freeman, 817 F.2d 380, 388 (6th Cir. 1987), but Plaintiff has produced

virtually no evidence upon which a jury could conclude that Defendant’s policies had a disparate

impact on male MLOs. Defendant, on the other hand, has produced evidence suggesting that the

challenged policies did not impose a disproportionate burden on male MLOs. Plaintiff could

have attempted to compile additional data to support his disparate impact claims during the

discovery period, but that period has expired. In light of the paucity of evidence to support

Plaintiff’s disparate impact claim, the district court did not err in granting Defendant’s motion

for summary judgment.

       2. TITLE VII RETALIATION CLAIM

       Because Plaintiff has not presented direct evidence of retaliation, we analyze his claim

under the burden-shifting framework of McDonnell Douglas, 411 U.S. 792. See Laster, 746

F.3d at 730. Plaintiff bears the initial burden to establish a prima facie case of retaliation. If he

succeeds in making out the elements of a prima facie case, “the burden of production of evidence

shifts to [Defendant] to articulate some legitimate, non-discriminatory reason for its actions.”

Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (internal quotation marks omitted) If

Defendant satisfies its burden of production, the burden shifts back to Plaintiff to demonstrate

that Defendant’s proffered reason was not the true reason for the action. Id. Although the

burden of production shifts between the parties, Plaintiff bears the burden of persuasion

throughout the process. Id.




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       To establish a prima facie case of retaliation under both Title VII and THRA, Plaintiff

must demonstrate that: (1) he engaged in activity protected by Title VII; (2) his exercise of such

protected activity was known by Defendant; (3) thereafter, Defendant took an action that was

“materially adverse” to the plaintiff; and (4) a causal connection existed between the protected

activity and the materially adverse action. Laster, 746 F.3d at 730; see also Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006) (modifying the third element to require a

“materially adverse action” rather than an “adverse employment action”). The first two elements

of Plaintiff’s prima facie case are not disputed.

       The district court erred in analyzing the third element of Plaintiff’s retaliation claim. In

assessing this element, the district court referred back to its analysis of Plaintiff’s discrimination

claim, stating:

       This Court has already found . . . that Plaintiff has not demonstrated that he
       suffered an adverse employment action. Neither the alleged “slow walking” nor
       the accusations of forgery (which were eventually dropped) constitutes an adverse
       employment action for these purposes.

Chandler, 2013 WL 5503139 at *4. As we recently stated in Laster, “[t]he ‘materially adverse

action’ element of a Title VII retaliation claim is substantially different from the ‘adverse

employment action’ element of a Title VII . . . discrimination claim.” 746 F.3d at 719 (citing

Burlington N., 548 U.S. at 59). To establish the third element of a retaliation claim, Plaintiff

need only show that “the challenged action . . . well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68 (internal

quotation marks and citations omitted). The burden of showing that Plaintiff was subjected to

adverse action is “less onerous” in the context of a retaliation claim than in the context of a

discrimination claim; actions which are not “adverse” for purposes of a discrimination claim may

nevertheless qualify as such for purposes of a retaliation claim.         Laster, 746 F.3d at 732.

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Accordingly, the district court erred in finding that the alleged “slow walking,” and other actions

could not constitute “material adverse action” for the purposes of Plaintiff’s retaliation claim.

        Nevertheless, Plaintiff’s claim must fail––not because the alleged actions cannot form the

basis of a retaliation claim as a matter of law, but because Plaintiff has failed to produce any

evidence that many of these actions even occurred, as a matter of fact, or that they occurred as a

result of Plaintiff’s protected activity.

        First, Plaintiff has not produced any evidence to support his allegation that his loans were

being “slow walked.” Apart from his own assertion, Plaintiff has not submitted a modicum of

evidence showing that his loans took longer than average to process. To the contrary, the record

shows that delays in loan processing had been an ongoing problem for all MLOs, and not only

Plaintiff. Moreover, Plaintiff admits that several of his loans were delayed due to the fact that

Plaintiff submitted applications that were incomplete.       Plaintiff also failed to produce any

evidence that the pace of his loans was influenced by individuals who were aware of Plaintiff’s

protected activities. There is no evidence from which a jury could conclude that the underwriters

who were allegedly “slow-walking” Plaintiff’s loans had any retaliatory motive or knowledge of

Plaintiff’s protected activity or that Plaintiff’s supervisors encouraged any delays. Accordingly,

there is insufficient evidence to support the notion that Plaintiff’s loans were “slow walked” in

retaliation for engaging in protected activity.

        Plaintiff’s remaining subclaims––his allegations that Defendant failed to investigate his

complaints of discrimination, denied him assignment to a branch that he desired, and sabotaged

his application for future employment––fail because Plaintiff cannot show that there was any

causal connection between his protected activity and the alleged adverse actions. Retaliation

claims “must be proved according to traditional principles of but-for causation.” Univ. of Texas



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Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). Because Plaintiff has not proffered

evidence sufficient to raise an inference that his protected activity was the likely reason for the

adverse action, EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (quoting

Zanders v. National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990)), Plaintiff’s

retaliation claim must fail.

                                        CONCLUSION

       For the reasons set forth above, we AFFIRM the district court’s grant of summary

judgment in favor of Defendant.




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