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(Cite as: 2005 WL 643363 (S.D.Ind.))

United States District Court,

S.D. Indiana, Indianapolis Division.

Chief John CROW DOG, Plaintiff,

v.

THE CITY OF INDIANAPOLIS, Mona Salem, Maureen Stapleton, Vaneeta Kumar,

Defendants.

No. 1:03-CV-0849-SEB-VSS.

March 18, 2005.

D. Robert Webster, Bamberger & Feibleman, Indianapolis, IN, for Plaintiff.

Robin M. Lybolt and Allison Wells Gritton, Indianapolis, IN, for Defendants.

ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and DENYING PLAINTIFF'S

MOTION TO STRIKE

BARKER, J.

*1 This matter comes before us on Defendant's Motion for Summary Judgment on Plaintiff's employment discrimination claims brought pursuant to Title VI and Title VII of the Civil Rights Act of 1965, 42. U.S.C. § 2000 et seq. The plaintiff, Chief John Crow Dog ("Chief Crow Dog"), alleges that his employer, the City of Indianapolis ("the City"), pays him less and has disciplined him unfairly on the impermissible basis of his national origin and religion. The Complaint also alleges the City discriminated against him when it cited him for zoning violations in 1994 and denied him improved working conditions. Plaintiff also asks us to strike a portion of the defendant's evidence in support of the summary judgment motion. For the reasons that follow, we GRANT Defendant's motion as to all claims and DENY Plaintiff's Motion to Strike.

I. Factual Background

The following facts are either uncontested or stated in a light most favorable to the plaintiff. All are supported by admissible evidence in the record.

Chief Crow Dog--formerly John W. Crazyhorse  [FN1]--is a Native American by national origin as well as religion. He holds the positions of "Indian priest," "traditional Tribal Chief," "Yuwipi Medicine Man," and is a delegate to the Human Rights Commission of the United Nations. Compl. ¶ 14. The Chief is a long time employee in the economic housing division of the Department of Metropolitan Development ("DMD"), where he was hired in April 1991 as a rehabilitation specialist. Def.'s Br. p. 3. In 2002, Chief Crow Dog went to the EEOC with his complaints of discriminatory discipline and compensation.

FN1. The plaintiff changed his name in 1997 and has alerted the Court that some of the City's records may use his former name. Pl.'s Aff. ¶ 2.

A. Chief Crow Dog's Salary History.

Chief Crow Dog was hired in 1991 at an annual salary of $18,160.20, a figure consistent with the salary range in place at that time. His job involves estimating the budgets for residential and commercial construction projects, approving all bids from approved contractors, inspecting construction projects for compliance with state regulations as well as federal financing rules, and issuing completion certificates which triggers payment of contractors. Pl.'s Aff. ¶ 4

It does not appear that the nature of his job duties has changed over the years, although his position was reclassified and re-named in 1994 when the City adopted a new compensation system for non-bargaining unit employees, such as plaintiff. The scale of salary grades and quartiles for all job classifications with the City are set out in the Employee Manual. Specifically, the policy states: "Salary grades have been assigned to all job classifications. Each grade has an established minimum, quartile and maximum salary range." Def.'s Mot. for Summ. J.; Ex. A, p. 6; Pierce Decl. ¶ 5. As a result of the new system, the plaintiff's job title changed from rehabilitation "specialist" to "inspector" and the post was assigned a salary grade of 3 and a salary quartile of 1. The salary range associated with that grade was $17,377 to $34,754, and because his salary ($19,639.88) fell within the range, no adjustment was made. Def.'s Br. at 3; Ex. E.

*2 In 1997, Chief Crow Dog's salary grade was raised to 4 (quartile of 1) and his pay increased to $25,000. Five years later, in 2002, his salary was raised to $28,826.72 with no change to his salary grade and quartile. Id. at 4; Exs. F, G.

There are three other employees in Chief Crow Dog's division who earn more than he does while allegedly performing the same or similar work. First, Doug Tevebaugh ("Tevebaugh") was hired as a rehabilitation inspector on May 12, 1997 at a salary grade of 4 and quartile of 1. Tevebaugh's salary in 2002 was $ 27,882.40, almost a thousand dollars less than Plaintiff's salary. It appears, however, that he was paid more than Plaintiff for a few months immediately after he was hired, [FN2] although it is an established fact that in 2002 he earned less than Plaintiff. Def.'s Br. at 5; Pierce Decl., Ex. H.; Pl.'s Resp. at 4.

FN2. Plaintiff states on page 4 of his Response Brief that Tevebaugh out-earned him for five months in 1997 and attaches Tevebaugh's payroll records as supporting evidence. He does not, however, authenticate or identify the payroll records as a condition precedent to their admissibility. Defendant does not object to the evidence.

Glenn Graber ("Graber") was also hired as a rehabilitation inspector in 1997, shortly after Tevebaugh's hiring, but was paid considerably more ($34,000) and assigned to a salary grade of 4 and a quartile of 3. Def.'s Ex. I. According to DMD supervisor Steve Kerzan ("Kerzan"), he recommended Graber for this salary classification and annual salary following a very strong interview and because of his job experience and organizational skills. Kerzan also felt that Graber should be considered the "lead inspector." Kerzan Decl. ¶¶ 2-3; Ex. J.

Sean Murray ("Murray") was hired in February 1996 as "Senior Building Inspector." In 2002, his position was classified as grade 5, quartile 3 and he earned $54,092 a year. Pierce Decl. ¶ 15; Ex. L. Plaintiff alleges he and Murray do exactly the same work, despite the difference in job titles and salary classifications. Pl.'s Aff. ¶¶ 4, 8.

B. Chief Crow Dog's Disciplinary History.

Chief Crow Dog was disciplined twice in 2001 and once in 2002 for violating the City's policy with respect to acceptable employee conduct. The policy, and accompanying disciplinary schedule, are set out in the City's Employee Manual, a copy of which was given to Plaintiff prior to any of the incidents complained of here. Def.'s Exhibits. A, D.

Section V of the policy relates to "Courtesy and Respect," two rules of which are relevant to the plaintiff's disciplinary history: (A) "Being discourteous or disrespectful to members of the public, fellow employees, subordinates or supervisors"; and (B) "Using defamatory, disruptive, threatening, or obscene language or gestures." Id.

In April 2001, Chief Crow Dog received a verbal reprimand for reportedly using profanity with a co-worker on March 2, 2001, as well as a written reprimand for a reported incident of being disrespectful of a citizen business vendor on March 20, 2001. Def.'s Exhibits. M, N. Both instances were considered violations of Rules A and B in Section V of the conduct policy. Def.'s Br. at 5. At the time of the disciplinary action, Chief Crow Dog lodged his grievance with the City, and today still disputes that these incidents ever occurred. Pl.'s Resp. at 3.

*3 On March 18, 2002, Chief Crow Dog was suspended for five (5) days, again for discourteous conduct. Plaintiff, along with Graber, Tevabaugh, Kerzan and other City employees attended a meeting on March 7, 2002, during which the subject of minority contractors was raised. An attendee at the meeting complained to the City that Chief Crow Dog made repeated generalizations and derogatory comments about female and African-American contractors. Plaintiff challenged the disciplinary action and disputed the characterization of his comments as derogatory. Chief Crow Dog's DMD co-workers apparently agreed with him and gave him written statements in support of his subsequent grievance, stating that his comments about women or African-Americans with whom he worked related specifically to job performance and not generally to race or gender. Pl.'s Aff. ¶ 10; Designation of Evidence; Witness Statements.

Under the policy, the violation warranted a suspension rather than a reprimand because it was deemed a "Rule B" violation. Having successfully challenged the disciplinary action, a grievance panel on August 26, 2002 determined that Chief Crow Dog had violated "Rule A" rather than "Rule B" and recommended rescission of the suspension in favor of a written reprimand. The suspension was subsequently rescinded. Def.'s Ex. O.

C. The EEOC Charge of Discrimination.

Chief Crow Dog filed an EEOC charge of discrimination on the basis of national origin on June 28, 2002 (prior to the successful resolution in August of his grievance). Although he listed the period of discrimination as August 28, 2001 to June 28, 2002, his complaint includes that the City discriminated against him with respect to salary as early as 1997. In the EEOC charge, Chief Crow Dog stated that "even though I complained to management, it was not until January 2002 that I got my salary raised from $21,000 to $28,826.72, when Glenn Graber and Doug Tevebaugh were hired at $25,000 at the time of hire." The plaintiff initially believed he was underpaid in 1997 and continued to believe that at the time of the filing of his EEOC complaint, stating that "White Rehab Specialists" Graber, Tevebaugh and Murray were consistently paid more than he, despite his January 2002 pay raise. In addition, Chief Crow Dog alleged the City had unfairly disciplined him for comments he made at the meeting on March 18, 2002, especially since his co-worker, Graber, had made similar comments and gone undisciplined. Def.'s Mot. for Summ. J, Attachment 2; EEOC Charge.

D. The Complaint.

Chief Crow Dog filed his complaint in this litigation on September 18, 2002 in which he alleges the City violated his civil rights both at work and at home by treating him unfairly on the basis of his national origin and religion: Native American. The bases of his Title VII claim are the City's alleged failure to promote him (¶ 34), failure to pay him the same salary as his white co-workers (¶ 31), failure to grant his requests for improved working conditions which impeded his ability to perform adequately (¶ 36), and discriminatory discipline (¶ 35). Chief Crow Dog also advanced Title VI and Section 1981 claims based on the City's actions in 1994, ordering him to cease an important tribal fire ceremony at his home and harassing him for zoning infractions, ostensibly as a guise for discriminating against him on the basis of his religion (¶¶ 42-53). The Court dismissed the Section 1981 claim on March 5, 2003. [FN3]

FN3. Chief Crow Dog together with other plaintiffs originally brought their claims against the City and individual defendants in 1:02-cv-1446- RLY-WTL. The plaintiffs' individual claims were severed on June 6, 2003, and Chief Crow Dog proceeded in this court under cause no. 1:03-cv-0849- SEB-VSS. Chief Crow Dog's Section 1981 claim, as well as an individual capacity claim against Maureen Stapleton, were dismissed on March 5, 2003.

*4 We now consider Chief Crow Dog's remaining claims as advanced in the City's Motion for Summary Judgment.

II. Legal Analysis

A. The Standard on Summary Judgment

Summary judgment is appropriate 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). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir.1998).

On a motion for summary judgment, the burden rests on the moving party, in this case the City, to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the City demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant, Chief Crow Dog, to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in (his) favor on a material question, then the court must enter summary judgment against (him)." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52).

Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of Chief Crow Dog. SeeVenters v. City of Delphi, 123 F.3d 956, 962 (7th Cir.1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. SeeShields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir.1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. SeeCelotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.

B. Plaintiff's Motion to Strike Defendant's Exhibit J.

Chief Crow Dog has moved to strike Exhibit J, a memorandum from Kerzan to supervisor Mark Smith regarding a salary recommendation for Graber, as evidence inadmissible for the purposes of a summary judgment motion. See Fed.R.Civ.P. 56(e). The City has cured the evidentiary deficiency by filing an affidavit in which Kerzan states that Exhibit J is a true and accurate copy of a memorandum he created on April 11, 1997 following a job interview with Graber. Kerzan Decl. ¶ 5. In light of this subsequent filing, we DENY Plaintiff's motion to strike Exhibit J.

C. Title VI Claim.

*5 Chief Crow Dog asserts a Title VI claim, which we must dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. 42 U.S.C. § 2000d. [FN4]

FN4. Title VI of the Civil Rights Act of 1964 provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Chief Crow Dog has come forward with no evidence which would allow us to find in his favor on a theory of intentional discrimination. In order to advance a claim of intentional employment discrimination under Title VI, Chief Crow Dog must allege and be able to show: (1) that the City is a recipient of federal funds; (2) the federal funds are used to provide employment; and (3) the City discriminated against him in his employment on the basis of his national origin. SeeAhern v. Board of Educ. of City of Chicago, 133 F.3d 975, 976-78 (7th Cir.1998). Defendant correctly asserts that Chief Crow Dog alleges no facts in either his EEOC charge or Complaint to support the first two elements, nor has Plaintiff rebutted the City's arguments in its summary judgment motion with any evidence. Instead, he concedes in his response brief that he has no actionable claim under Title VI. We accept this concession and dismiss Chief Crow Dog's claim under Title VI. [FN5]

FN5. Insofar as Plaintiff is alleging that the City has discriminated against him under a disparate impact theory, the Supreme Court's decision in Alexander v. Sandoval also bars recovery under Title VI. The Supreme Court ruled that no private right of action exists to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act. Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).

C. Claims which exceed the scope of the EEOC charge of discrimination.

As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC charge; to do otherwise would frustrate the EEOC's investigatory and conciliatory role, and deprive the employer of notice of the charge. Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir.1994); McGoffney v. Vigo County Div. of Family and Children, 389 F.3d 750 (7th Cir.2004). Plaintiff cannot proceed on the following claims because they exceed the scope of his EEOC charge: (1) employment discrimination on the basis of religion; (2) discriminatory failure to promote; and (3) discriminatory failure to improve working conditions.

In the Complaint, filed on September 18, 2002, religious grounds are included as a basis for the City's alleged discriminatory treatment of him at home, not in the workplace. Compl. ¶¶ 18-21, 25. In addition, Chief Crow Dog alleges that the City failed to promote him (¶ 34) and to grant his requests for improved working conditions which impede his ability to perform adequately (¶ 36). Nowhere in Chief Crow Dog's EEOC charge of discrimination does he make reference to religious discrimination or to instances of failure to promote or improve his working conditions when requested. Arguably, a "failure to promote" claim reasonably relates to a claim of inadequate pay, but the plaintiff does not come forward with any evidence to support that claim. Thus, even if we considered it within the scope of the EEOC charge, it would necessarily fail for lack of evidentiary support on the defendant's motion for summary judgment. We conclude that Defendant is entitled to summary judgment on the claims alleging religious discrimination, failure to promote and failure to improve working conditions.

*6 As for the allegation of discriminatory discipline, the plaintiff appears to have waived this claim, stating that "he no longer claims that he was disciplined because he is Native American." Pl.s' Resp. at 3. Abandoning this claim, together with the absence of supporting evidence in response to the City's motion for summary judgment, leaves Plaintiff with no genuine issue of material fact on the issue of discriminatory discipline. The City is therefore entitled to summary judgment on this claim as well. [FN6]

FN6. Plaintiff concedes that his only viable Title VII claim is based on allegations of inadequate pay. Pl.'s Resp. at 5.

D. Title VII claim: disparate impact.

To prevail on his claim that he has been unfairly paid under a disparate impact theory, Chief Crow Dog must establish that one or more of the City's facially neutral employment practices has some type of disproportionate impact on his protected class, Native American. Bennett v. Roberts, 295 F.3d 687, 698 (7th Cir.2002).

Chief Crow Dog must identify the specific employment practices that are allegedly responsible for any statistical disparities in pay that he has observed. In addition, he must establish a causal connection between the employment practice and the statistical disparity, typically accomplished by offering "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotion because of their membership in a protected group." (internal citations omitted). Id.

Chief Crow Dog has not identified any specific employment policy or practice that might be responsible for creating lower pay for protected minorities in the DMD. We assume, however, that he refers to the compensation policy which assigns a salary grade and quartile to each job position. Beyond this inference, Plaintiff has not come forward with any evidence that might establish a prima facie case of disparate impact salary discrimination. No evidence has been proffered, for example, that the salary grade/quartile system has a statistically adverse impact on minorities or that the City perpetuates a pattern of discriminatory salary assignments on the basis of ethnicity. We therefore conclude that Plaintiff's disparate impact claim fails as a matter of law and that the City is entitled to summary judgment on this claim as well.

E. Title VII claim; disparate treatment.

Lacking any direct evidence of discrimination, Chief Crow Dog may prove indirectly his claim that the City treated him less favorably than other employees through the burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). If Chief Crow Dog presents sufficient evidence to establish a prima facie case, he will have raised a presumption of discrimination which the City must rebut by producing evidence of a legitimate, nondiscriminatory explanation of its adverse employment action. Assuming it does, Chief Crow Dog must establish that the legitimate, nondiscriminatory reasons proffered by the City were pretextual. To prove pretext, Plaintiff must present admissible evidence from which a trier of fact may reasonably infer that his national origin played a role in the challenged action or that the employer offered a phoney explanation for its adverse employment action. SeeFreeman v. Madison Metropolitan School Dist., 231 F.3d 374 (7th Cir.2000).

*7 In the case at bar, therefore, in order to establish a prima facie case of national origin discrimination using the indirect method, Chief Crow Dog must present evidence that: (1) he is a member of a protected class; (2) he performed his job duties satisfactorily; (3) he suffered an adverse employment action; and (4) the City treated similarly-situated employees outside his protected class more favorably. Brummett v. Lee Enters., Inc., 284 F.3d 742, 744 (7th Cir.2002).

The first and third elements of the prima facie case for inadequate pay are uncontested here: Chief Crow Dog, as a Native American, is a member of a protected class and he received a lower salary than two DMD employees. Def.'s Br. at 8.

Regarding the second element, the City would have us find that Chief Crow Dog was not performing his job duties satisfactorily because he was disciplined three times between 2001 and 2002. Def.'s Br. at 8. Plaintiff has offered no admissible evidence to rebut this contention for the period of August 28, 2001 through June 28, 2002; he simply states in his brief that "Chief Crow Dog, as per his own testimony, was performing adequately." Pl.'s Resp. at 7-8. Even if he had made this assertion in his affidavit, it would be insufficient to create a genuine issue of material fact, because, in the context of summary judgment, an unsupported and rebutted statement is precisely the sort of self-serving and conclusory assertion that cannot create a triable issue of fact which would preclude summary judgment. Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7thCir.2002).

There is potentially a triable issue of fact if we consider the events which occurred prior to September 1, 2001, that is to say, 300 days prior to the date Plaintiff filed his EEOC Charge. [FN7] Plaintiff has asserted a continuing violation charge, but the City argues that Chief Crow Dog's Title VII discrimination claims predating September 1, 2001 are time-barred. Def.'s Br. at 9; Pl.'s Resp. at 5-6. The continuing violation doctrine allows a Title VII plaintiff to obtain relief for an otherwise time-barred discriminatory act by linking it with a discriminatory act occurring within the limitations period. Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.2000). Chief Crow Dog claims that every paycheck that delivered less salary to him, a minority, than was paid to a similarly situated white co-worker, is actionable under Title VII. SeeReese v. Ice Cream Specialist, Inc., 347 F.3d 1007 (7th Cir.2003). In Reese, the court found significant the fact that plaintiff had been promised a raise that he never received, while his white co-workers did. The City argues here, in contrast, that no such unfulfilled promise occurred with respect to Chief Crow Dog, yet we are not so sure. Chief Crow Dog offers a July 1997 memo from Kerzan to Mark Smith in which Kerzan recommends increasing Chief Crow Dog's salary from $21,498.88 to $29,055.00, based on his considerable construction experience, dedication to his job, responsibility for training new inspectors, and lack of adequate salary adjustments in the preceding seven (7) year period. Pl.'s Evidence; Kerzan Memo. We are impeded in our consideration of this memorandum, however, because it is currently an unauthenticated document and thus is inadmissable hearsay. If this were the sole obstacle to defeating summary judgment, we would provide Chief Crow Dog with an opportunity to overcome this evidentiary deficiency under Rule 56(f). [FN8] However, because the plaintiff faces greater legal obstacles to success on the merits of his Title VII claim, we see no value in his rehabilitation of the defective submission by filing an authenticating affidavit.

FN7. An employment discrimination plaintiff in Indiana, as a general rule, must file an administrative charge within 300 days of the occurrence of the event that forms the basis of his complaint. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994).

FN8. Rule 56(f) of the Federal Rules of Civil Procedure states:

"Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

*8 Chief Crow Dog's prima facie case founders more substantially on the fourth element, the preferential treatment of non-minority co-workers. He offers three comparators: Tevebaugh, Graber and Murray. To meet his burden of demonstrating that a similarly situated employee was treated more favorably, Chief Crow Dog must show that there is someone who is directly comparable in all material respects. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002)

Chief Crow Dog states that he, Tevebaugh, Graber and Murray all "do the same work." Pl.'s Aff. ¶ 4. No other evidence in the record supports this purely subjective assessment, and subjective beliefs alone cannot create triable issues of fact to preclude summary judgment. SeeMcMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir.1989)

Indeed, the admissible evidence indicates otherwise. First, Tevebaugh is the only DMD rehabilitation inspector who is directly comparable to Chief Crow Dog because he was hired in 1997 at a salary grade of 4 and quartile of 1 and remains in that position. In 2002, Tevebaugh's salary was $ 27,882.40, almost a thousand dollars less than Plaintiff's salary. It does appear, however, that for a brief period he was paid more than the plaintiff, but these few months came immediately after he was hired. For the vast majority of the alleged discriminatory period, Tevebaugh has not out-earned Plaintiff and therefore is meaningless as a comparator here.

Neither are the remaining employees directly comparable to Chief Crow Dog. Graber is in a higher salary quartile and Murray is in a higher salary grade and quartile (grade 5, quartile 3). The City offers unrebutted testimony that Graber was placed in a higher quartile position at the time he was hired and offered a salary of $34,000 because of his demonstrated job experience, strong interview and organizational skills. Def.'s Ex. K. In addition, Murray holds a different position from Chief Crow Dog--he is a Senior Building Inspector. Their salary differentials are clearly based on factors other than national origin.

Finally, Chief Crow Dog does not raise a triable issue as to the City's proffered legitimate, non-discriminatory reasons for it salary decisions. He makes no discernible argument that the City's reasons for starting Graber at a higher salary, for example, were pretextual. We mention these factors despite our not being required to shift the burden to the City to show that it acted pursuant to legitimate work-related policies, with respect to salary assignments or even disciplinary actions since. Chief Crow Dog has simply failed to establish a prima facie case of disparate treatment. These failures defeat his Title VII claim as a matter of law.

Conclusion

For the reasons outlined above, we GRANT Defendant's Motion for Summary Judgment on all Plaintiff's employment discrimination claims brought pursuant to both Title VI and Title VII and DENY Plaintiff's Motion to Strike.