NOT RECOMMENDED FOR PUBLICATION File Name: 22a0504n.06
No. 22-3141
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
LABORERS’ INTERNATIONAL ) FILED ) Dec 07, 2022 UNION OF NORTH AMERICA, Local ) DEBORAH S. HUNT, Clerk 894, ) Plaintiff, ) ) ALPHA SOUARE, ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR Plaintiff-Appellant, ) THE NORTHERN DISTRICT OF ) OHIO v. ) ) OPINION KENNY/OBAYASHI V, A Joint Venture; ) KENNY CONSTRUCTION COMPANY; ) OBAYASHI CORPORATION, ) ) Defendants-Appellees. )
Before: BOGGS, STRANCH, and THAPAR, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Kenny Construction Company, Obayashi
Corporation, and their unincorporated joint venture, Kenny/Obayashi V (collectively,
“Kenny/Obayashi”), hired Alpha Souare, a Black man and Guinean immigrant, in early December
2017. He reported to the Ohio Canal Interceptor Tunnel Project in Akron, Ohio, where he worked
for a single shift of construction work and was laid off, along with a group of other new employees
that included white workers. Souare sued Kenny/Obayashi under Ohio law, alleging a claim for
national origin discrimination and a claim for a hostile work environment based on race.1 The
district court granted Kenny/Obayashi’s motion for summary judgment in full. Souare appeals.
1 The other plaintiffs initially named in the complaint, including Laborers’ International Union, Local 894, reached a settlement with Kenny/Obayashi, stipulated to dismissal of their claims with prejudice, and are no longer in the case. No. 22-3141, Laborers Int’l Union et al. v. Kenny/Obayashi, et al.
Upon full review of the record and the parties’ briefs, we are not persuaded that the district
court erred. Based on the thorough analysis of the district court, issuing a detailed opinion of this
court would be duplicative and serve no useful purpose. Accordingly, we AFFIRM the district
court’s judgment and adopt the reasoning of its Memorandum of Opinion and Order dated January
31, 2022, with one exception.
The district court did not fully address Souare’s argument that his discrimination claim
could be proven with direct evidence. It held only that, “[a]bsent direct evidence of
discrimination,” it “must employ the burden shifting framework established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” But intentional
discrimination can be proved by either direct or circumstantial evidence, and “a plaintiff need only
prove one or the other, not both.” See Hedrick v. W. Rsrv. Care Sys., 355 F.3d 444, 453 (6th Cir.
2004) (quoting Kline v. Tenn. Valley Auth., 128 F.3d 337, 348–49 (6th Cir. 1997)). We address
here the statements that Souare identified on appeal and which he contends constitute direct
evidence of national origin discrimination.
We review a district court’s grant of summary judgment de novo. Geiger v. Tower Auto.,
579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A material fact is one “that might affect the outcome of the suit,” and
a genuine dispute exists “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary
judgment stage, “we do not judge credibility or weigh conflicting evidence; instead, we believe
the evidence of the nonmoving party, and draw ‘all justifiable inferences’ in his favor.” Briggs v.
Univ. of Cincinnati, 11 F.4th 498, 507 (6th Cir. 2021) (quoting Anderson, 477 U.S. at 255). Ohio
-2- No. 22-3141, Laborers Int’l Union et al. v. Kenny/Obayashi, et al.
Revised Code § 4112 claims are subject to the same standards as federal Title VII claims. See
Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio C.R. Comm’n, 421 N.E.2d 128, 131
(Ohio 1981).
The district court summarized the factual background in full and it need not be recounted
here. See Local 894 Laborers’ Int’l Union of N. Am. v. Kenny/Obayashi V, No. 5:19CV2221, 2022
WL 294839, at *1 (N.D. Ohio Jan. 31, 2022). On appeal, Souare points to the following three
statements that he argues the district court should have treated as direct evidence of national origin
discrimination:
• Night shift foreman Terry Quinn’s statement: “I don’t give a fuck about blacks. It’s my way or the highway.” • A statement by another foreman, identified in the record only as “Curtis”: “shit, ain’t no African going to be on this ship.” • An unnamed, bald supervisor’s statement: “this is not an African job.”
Direct evidence of discrimination is evidence that “does not require a factfinder to draw
any inferences in order to conclude that the challenged employment action was motivated at least
in part by prejudice against members of the protected group.” Johnson v. Kroger Co., 319 F.3d
858, 865 (6th Cir. 2003). The evidence “must establish not only that the plaintiff’s employer was
predisposed to discriminate on the [protected basis], but also that the employer acted on that
predisposition.” Hein v. All Am. Plywood Co., 232 F.3d 482, 488 (6th Cir. 2000). Critically,
“[a]ny discriminatory statements must come from decisionmakers to constitute evidence of
discrimination.” Geiger, 579 F.3d at 620-21. “Generally, discriminatory comments can qualify
as evidence that a particular decision was discriminatory if the speaker was ‘in a position to
influence the alleged decision.’” Griffin v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) (quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998)).
-3- No. 22-3141, Laborers Int’l Union et al. v. Kenny/Obayashi, et al.
Souare bears the ultimate burden of proving his discrimination claim, which requires facts
that might support a finding that the individuals who made the alleged statements had decision-
making authority or otherwise influenced Kenny/Obayashi’s decision to terminate Souare. See
Geiger, 579 F.3d at 620-21; Griffin, 689 F.3d at 595. To satisfy that standard, Souare points only
to his claim that the speakers held the titles of “foreman” and “supervisor.” Despite the district
court’s extension of the discovery deadline, Souare took only one deposition, and opposed
summary judgment primarily by citing to written discovery responses that he did not sign.2
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NOT RECOMMENDED FOR PUBLICATION File Name: 22a0504n.06
No. 22-3141
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
LABORERS’ INTERNATIONAL ) FILED ) Dec 07, 2022 UNION OF NORTH AMERICA, Local ) DEBORAH S. HUNT, Clerk 894, ) Plaintiff, ) ) ALPHA SOUARE, ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR Plaintiff-Appellant, ) THE NORTHERN DISTRICT OF ) OHIO v. ) ) OPINION KENNY/OBAYASHI V, A Joint Venture; ) KENNY CONSTRUCTION COMPANY; ) OBAYASHI CORPORATION, ) ) Defendants-Appellees. )
Before: BOGGS, STRANCH, and THAPAR, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Kenny Construction Company, Obayashi
Corporation, and their unincorporated joint venture, Kenny/Obayashi V (collectively,
“Kenny/Obayashi”), hired Alpha Souare, a Black man and Guinean immigrant, in early December
2017. He reported to the Ohio Canal Interceptor Tunnel Project in Akron, Ohio, where he worked
for a single shift of construction work and was laid off, along with a group of other new employees
that included white workers. Souare sued Kenny/Obayashi under Ohio law, alleging a claim for
national origin discrimination and a claim for a hostile work environment based on race.1 The
district court granted Kenny/Obayashi’s motion for summary judgment in full. Souare appeals.
1 The other plaintiffs initially named in the complaint, including Laborers’ International Union, Local 894, reached a settlement with Kenny/Obayashi, stipulated to dismissal of their claims with prejudice, and are no longer in the case. No. 22-3141, Laborers Int’l Union et al. v. Kenny/Obayashi, et al.
Upon full review of the record and the parties’ briefs, we are not persuaded that the district
court erred. Based on the thorough analysis of the district court, issuing a detailed opinion of this
court would be duplicative and serve no useful purpose. Accordingly, we AFFIRM the district
court’s judgment and adopt the reasoning of its Memorandum of Opinion and Order dated January
31, 2022, with one exception.
The district court did not fully address Souare’s argument that his discrimination claim
could be proven with direct evidence. It held only that, “[a]bsent direct evidence of
discrimination,” it “must employ the burden shifting framework established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” But intentional
discrimination can be proved by either direct or circumstantial evidence, and “a plaintiff need only
prove one or the other, not both.” See Hedrick v. W. Rsrv. Care Sys., 355 F.3d 444, 453 (6th Cir.
2004) (quoting Kline v. Tenn. Valley Auth., 128 F.3d 337, 348–49 (6th Cir. 1997)). We address
here the statements that Souare identified on appeal and which he contends constitute direct
evidence of national origin discrimination.
We review a district court’s grant of summary judgment de novo. Geiger v. Tower Auto.,
579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A material fact is one “that might affect the outcome of the suit,” and
a genuine dispute exists “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary
judgment stage, “we do not judge credibility or weigh conflicting evidence; instead, we believe
the evidence of the nonmoving party, and draw ‘all justifiable inferences’ in his favor.” Briggs v.
Univ. of Cincinnati, 11 F.4th 498, 507 (6th Cir. 2021) (quoting Anderson, 477 U.S. at 255). Ohio
-2- No. 22-3141, Laborers Int’l Union et al. v. Kenny/Obayashi, et al.
Revised Code § 4112 claims are subject to the same standards as federal Title VII claims. See
Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio C.R. Comm’n, 421 N.E.2d 128, 131
(Ohio 1981).
The district court summarized the factual background in full and it need not be recounted
here. See Local 894 Laborers’ Int’l Union of N. Am. v. Kenny/Obayashi V, No. 5:19CV2221, 2022
WL 294839, at *1 (N.D. Ohio Jan. 31, 2022). On appeal, Souare points to the following three
statements that he argues the district court should have treated as direct evidence of national origin
discrimination:
• Night shift foreman Terry Quinn’s statement: “I don’t give a fuck about blacks. It’s my way or the highway.” • A statement by another foreman, identified in the record only as “Curtis”: “shit, ain’t no African going to be on this ship.” • An unnamed, bald supervisor’s statement: “this is not an African job.”
Direct evidence of discrimination is evidence that “does not require a factfinder to draw
any inferences in order to conclude that the challenged employment action was motivated at least
in part by prejudice against members of the protected group.” Johnson v. Kroger Co., 319 F.3d
858, 865 (6th Cir. 2003). The evidence “must establish not only that the plaintiff’s employer was
predisposed to discriminate on the [protected basis], but also that the employer acted on that
predisposition.” Hein v. All Am. Plywood Co., 232 F.3d 482, 488 (6th Cir. 2000). Critically,
“[a]ny discriminatory statements must come from decisionmakers to constitute evidence of
discrimination.” Geiger, 579 F.3d at 620-21. “Generally, discriminatory comments can qualify
as evidence that a particular decision was discriminatory if the speaker was ‘in a position to
influence the alleged decision.’” Griffin v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) (quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998)).
-3- No. 22-3141, Laborers Int’l Union et al. v. Kenny/Obayashi, et al.
Souare bears the ultimate burden of proving his discrimination claim, which requires facts
that might support a finding that the individuals who made the alleged statements had decision-
making authority or otherwise influenced Kenny/Obayashi’s decision to terminate Souare. See
Geiger, 579 F.3d at 620-21; Griffin, 689 F.3d at 595. To satisfy that standard, Souare points only
to his claim that the speakers held the titles of “foreman” and “supervisor.” Despite the district
court’s extension of the discovery deadline, Souare took only one deposition, and opposed
summary judgment primarily by citing to written discovery responses that he did not sign.2
Kenny/Obayashi deposed Souare, but Souare never deposed the foremen or supervisor who were
said to have made the statements. Nor does the record contain the supervisor’s name or official
role.
The only individual that Souare has identified with any kind of decision-making authority
is David Chastka, the person who helped him get hired by Kenny/Obayshi in the first place. But
the record is clear that the bald supervisor who gave Souare his paycheck and told him not to come
back—and who allegedly said, “this is not an African job”—was “not David Chastka.” There is
no evidence or even argument that this supervisor had any decision-making authority over
Souare’s termination. Moreover, Souare testified at his deposition that when he emailed Chastka
following his termination, Chastka responded that “he was not there at that time.” And Souare
agreed that Chastka “didn’t discriminate against [him] or harass [him] in any way.” On this record,
Souare has not sustained his burden.
To be sure, the statements Souare identifies are racist and xenophobic, and do not belong
in the workplace. But isolated remarks made by non-decisionmakers do not qualify as direct
2 The written discovery responses were signed only by his attorney, and not Souare himself. See Fed. R. Civ. P. 33(b)(3), (b)(5) (each interrogatory must be answered “fully in writing under oath” and be signed by the “person who makes the answers”).
-4- No. 22-3141, Laborers Int’l Union et al. v. Kenny/Obayashi, et al.
evidence of discrimination. Geiger, 579 F.3d at 620-21; see also Johnson, 319 F.3d at 865. The
district court did not err in finding that the statements were not direct evidence of discrimination,
but appropriately gave the statements due consideration in its circumstantial evidence analysis.
See Ercegovich, 154 F.3d at 356. We therefore AFFIRM the judgment of the district court and
adopt its opinion, with the above addition, as the opinion of this court.
-5-