Deon Colvin v. V E T E R A N S A D M I N I S T R A T I O Nmedical Center

The Honorable Danny C. Reeves, United States District Judge for the Eastern District of*
Kentucky, sitting by designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0454n.06
No. 08-4518
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEON COLVIN,
Plaintiff-Appellant,
v.
V E T E R A N S A D M I N I S T R A T I O N
MEDICAL CENTER,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*
DANNY C. REEVES, District Judge. Deon Colvin appeals the district court’s grant of
summary judgment in favor of Veterans Administration Medical Center (VAMC) on his claim that
VAMC violated Title VII of the Civil Rights Act by terminating his employment because of his race.
For the following reasons, we affirm the district court’s decision.
I.
Colvin, who is African-American, began working as a staff pharmacist at VAMC’s Wade
Park Medical Facility in Cleveland, Ohio, in June 2002. His first assignment, following a seven-
week orientation, was to the midnight shift. On this schedule, he was the only pharmacist on duty

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at the facility between the hours of midnight and 8:00 a.m. Early in his employment at the Wade
Park facility, Colvin had difficulty filling prescriptions in a timely manner. He also, by his own
admission, made some mistakes during this initial period, including filling an order for ten syringes
of injectable morphine with ten boxes of ten syringes each; failing to indicate dosage information
on an insulin prescription; and failing to detect and fix an error in a physician’s order for heparin,
completing the order for hourly injections of the drug instead of a continuous drip. Each of these
mistakes was documented and brought to Colvin’s attention. Colvin, who had previously worked
in retail pharmacies, attributes these early errors to his lack of experience in a hospital environment
and notes that they were not repeated.
Lance Norris, who is white, began working as a staff pharmacist at VAMC’s Wade Park
facility on the same day as Colvin and went through the same orientation. He and Colvin had the
same immediate supervisor, Henry Armbruster. While Colvin was on the midnight shift, Norris
worked days. Armbruster and two VAMC employees who worked with both Colvin and Norris
observed that the two pharmacists had similar problems processing orders on time. Statistical
reports show that Colvin outperformed Norris in several areas, including inspections, patient
counseling, and number of prescriptions filled.
After four weeks on the midnight shift, Colvin was moved to the day shift due to his
unsatisfactory performance. According to two co-workers, Colvin’s work improved following this
change in schedule. Colvin does not recall any further criticism of his work performance until April
2003, when Armbruster informed him that he had insufficient knowledge regarding drugs and their
uses and did not process prescriptions quickly enough. On May 23, 2003, Armbruster completed

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a performance appraisal in which he rated Colvin’s performance “unacceptable” in the areas of
clinical activities and medication distribution. Colvin was also given an overall performance rating
of “unacceptable.” On May 28, 2003, a few days before the end of Colvin’s one-year probationary
period, VAMC terminated his employment. Norris, meanwhile, received no “unacceptable” ratings
on his performance appraisal, and his employment with VAMC was not terminated.
Following his termination, Colvin filed a complaint against VAMC alleging breach of
implied contract, intentional infliction of emotional distress, promissory estoppel, racial
discrimination under Title VII of the Civil Rights Act of 1964, and racial discrimination in violation
of Ohio law. VAMC moved for summary judgment on the ground that Norris was not similarly
situated to Colvin and, as a result, Colvin could not make out a prima facie case of discrimination.
In the alternative, VAMC argued that even if all the elements of a prima facie discrimination case
were met, Colvin could not show that its stated reasons for firing him were pretextual. The district
court granted VAMC’s motion, finding that “Colvin and Norris, while similar in many respects, are
not similar in all relevant respects because their errors are not of comparable seriousness.” Colvin
v. Veterans Admin. Med. Ctr., No. 1:04-CV-2476, 2008 U.S. Dist. LEXIS 81250, at *8 (N.D. Ohio
Oct. 14, 2008). Therefore, the court concluded, Norris was not similarly situated to Colvin, and
Colvin could not establish the final element of a prima facie discrimination case. Id. at *15.
Colvin filed a pro se appeal seeking reversal of the summary judgment and remand for trial.
He makes a number of arguments regarding the district court’s application of the summary judgment
standard and asserts that the court’s factual determination regarding the seriousness of his errors was
incorrect. In particular, Colvin maintains that under VAMC’s performance standards, there is no

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such thing as a “serious” or “significant” mistake, and that because he and Norris were both
performing up to VAMC’s standards, they must be similarly situated.
II.
A. Judicial Notice
Before reaching the merits of Colvin’s appeal, we must address his motion to take judicial
notice. Colvin asks the panel to consider a July 2003 finding by the Ohio Department of Job and
Family Services that his termination was not justified. As a result of this determination, Colvin was
deemed eligible for unemployment benefits for the week ending May 31, 2003. Because the Ohio
agency’s decision is a fact “capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b), we grant Colvin’s motion.
However, the agency’s conclusion is not dispositive and, in fact, is of no help to Colvin. As
explained below, we do not reach the inquiry to which such information would be relevant.
B. Summary Judgment
A district court’s grant of summary judgment is reviewed de novo. Wright v. Murray Guard,
Inc., 455 F.3d 702, 706 (6th Cir. 2006) (citing DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004)).
An order granting summary judgment must be affirmed “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). However,
“[s]ummary judgment is inappropriate . . . ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

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Colvin was represented by counsel in the district-court proceedings.1
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The burden is on the party seeking summary judgment to establish that no genuine issue of
material fact exists. Id. This burden “‘may be discharged by showing — that is, pointing out to the
district court — that there is an absence of evidence to support the nonmoving party’s case.’” Id.
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986) (other internal quotation marks omitted)). To survive summary judgment, the nonmoving
party must then offer “‘significant[] probative’ evidence in support of its position.” Id. (quoting
Anderson, 477 U.S. at 249-50 (alteration by Wright court)). During review of a district court’s grant
of summary judgment, all evidence is viewed in the light most favorable to the nonmoving party.
Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,
89 L. Ed. 2d 538 (1986)). Moreover, because Colvin is a pro se appellant, his filings are given
liberal construction. See Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines1
v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)).
Colvin’s Title VII racial-discrimination claim must be examined using the burden-shifting
analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973), and modified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). At the first stage of this analysis, the plaintiff
must establish a prima facie case. Burdine, 450 U.S. at 252-53. If the plaintiff can make a prima
facie showing by a preponderance of the evidence, he is entitled to a presumption of discrimination.
Id. at 254. The burden of production then shifts to the defendant, which can overcome the

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Colvin holds a bachelor’s degree in pharmacy from Howard University and has been2
licensed as a pharmacist in Ohio since 1994.
Although Colvin indicates that he originally intended to allege both that a similarly situated3
non-protected employee was treated more favorably and that he was replaced by someone outside
the protected class, for purposes of the present appeal he argues only that he was treated differently
than a similarly situated non-protected employee.
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presumption by showing a “‘legitimate, nondiscriminatory reason’” for its actions. Id. at 253
(quoting McDonnell Douglas, 411 U.S. at 802). If the defendant’s explanation is “legally sufficient
to justify a judgment” in its favor, the plaintiff must demonstrate that the defendant’s stated reason
for the adverse employment action was merely a “pretext for discrimination.” Id. at 253, 255. The
ultimate burden of proving the defendant’s intent to discriminate remains with the plaintiff at all
times. Wright, 455 F.3d at 707 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct.
2742, 125 L. Ed. 2d 407 (1993)).
To make a prima facie showing of discrimination, a plaintiff must establish that he or she (1)
“was a member of a protected class”; (2) “suffered an adverse employment action”; (3) “was
qualified for the position”; and (4) “was replaced by someone outside the protected class or was
treated differently than similarly-situated, non-protected employees.” Id. (citing DiCarlo, 358 F.3d
at 415). Here, the first three elements are not in dispute: Colvin is African-American; his
employment with VAMC was terminated; and he was qualified for the position of staff pharmacist.2
Thus, the only remaining inquiry is whether there is a non-protected employee similarly situated to
Colvin who received more favorable treatment.3

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Colvin maintains that Lance Norris is similarly situated. He notes that he and Norris began
working as staff pharmacists at the Wade Park facility on the same date, received the same
orientation, and answered to the same supervisor (Armbruster). Colvin provided evidence, in the
form of declarations by two VAMC employees who worked with both pharmacists, that he and
Norris had at least one performance problem in common: Annette Douglas, a pharmacy technician
at the Wade Park facility, and Angela Brazile, a staff nurse, stated that both Colvin and Norris had
difficulty filling prescriptions in a timely manner. Minutes from a December 2002 staff meeting also
suggest that Norris contributed to the pharmacy’s overall problem with slow order processing.
Furthermore, Armbruster acknowledged in his affidavit that Norris, like Colvin, “had some
performance issues”; however, the only such issue identified by Armbruster was Norris’ failure to
properly document his actions. The record contains no evidence that Norris committed errors similar
to Colvin’s with regard to filling prescriptions.
This Court has held that “[i]n the disciplinary context, . . . to be found similarly situated, the
plaintiff and his proposed comparator must have engaged in acts of ‘comparable seriousness.’” Id.
at 710 (quoting Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir. 2002)). In assessing the relative
seriousness of the employees’ acts, a court may consider “whether the individuals ‘have dealt with
the same supervisor, have been subject to the same standards[,] and have engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish their conduct
or the employer’s treatment of them for it.’” Id. (quoting Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 352 (6th Cir. 1998) (other internal quotation marks omitted)). While there need
not be an “exact correlation” between the plaintiff and the non-protected employee who was treated

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As previously noted, Colvin was fired after receiving “unacceptable” ratings on his4
performance appraisal. According to Armbruster’s comments on that appraisal, Colvin had
“insufficient knowledge of hospital pharmacy,” was “too slow processing orders,” and made “too
many errors.” Conversely, Norris received no ratings of “unacceptable.” Armbruster noted on
Norris’ appraisal form that documentation was “something [for Norris] to work on,” but that Norris
did “good work overall.”
Colvin points out, and the district court acknowledged, that these three mistakes occurred5
early in his employment with VAMC when he was working the midnight shift “and are therefore
more expected or understandable.” Colvin, 2008 U.S. Dist. LEXIS at *15. However, the reasons
behind the errors are not relevant to the determination of whether Colvin and Norris are similarly
situated, since despite their identical start dates, there is no evidence that Norris made any such
“rookie mistakes.” Likewise, whether Colvin did or did not continue to make such errors during the
remainder of his employment with VAMC might be relevant at the pretext stage of the McDonnell
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more favorably, the plaintiff must demonstrate that he and his proposed comparator are “similar in
‘all of the relevant aspects.’” Ercegovich, 154 F.3d at 352 (quoting Pierce v. Commonwealth Life
Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (emphasis added by Ercegovich court)). The court must
“make an independent determination as to the relevancy of a particular aspect of the plaintiff’s
employment status and that of the non-protected employee.” Id.
Because Colvin and Norris received starkly different performance evaluations and VAMC
cited disciplinary problems as the reason for Colvin’s dismissal, whether the two employees engaged
in the same conduct is a relevant factor. See Wright, 455 F.3d at 710. Taken in the light most4
favorable to Colvin, the evidence shows that both he and Norris had problems filling prescriptions
on time. The similarities with respect to their conduct end there, however. Colvin admits that he
erroneously dispensed ten times the ordered amount of a controlled substance, failed to include
relevant dosage information on a prescription, and neglected to catch a physician’s error regarding
how a drug should be administered. Although Colvin argues that these mistakes — made early in5

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Douglas/Burdine analysis but is of no help to him for purposes of establishing the “similarly
situated” element of a prima facie case.
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his employment with VAMC and not repeated — are not as serious or significant as VAMC claims,
he nonetheless has not demonstrated that Norris “engaged in the same conduct.” There is no
evidence that Norris committed similar errors in filling prescriptions.
Again, while Colvin is not required to show that his proposed comparator’s actions were
identical to his own, Norris’ conduct was of a different nature than Colvin’s, and that difference is
relevant. See id. (plaintiff and proposed comparator “cannot be considered similarly situated . . .
because they engaged in different conduct, and the differences in their conduct are relevant”).
Regardless of whether Colvin’s mistakes resulted in any actual harm, errors in filling prescriptions
could easily injure a patient or expose VAMC to liability. Norris’ failure to complete paperwork
does not carry the same obvious safety and legal risks. See id. at 711 (employer “is permitted to
consider its legal obligations” when making employment decisions); Ruth v. Children’s Med. Ctr.,
940 F.2d 662 (table), 1991 U.S. App. LEXIS 19062, at *23 (6th Cir. 1991) (pharmacists not
similarly situated where both committed medication errors, but “[plaintiff’s] error differed in both
type and severity of potential consequences”). No improper weighing of evidence is necessary to
reach the conclusion that Norris’ and Colvin’s disciplinary problems were not of comparable
seriousness. The potential harm from their respective actions is sufficiently different to distinguish
their conduct and their treatment by VAMC. See Wright, 455 F.3d at 710 (finding plaintiff and
proposed comparator “not similarly situated because their alleged acts of misconduct are of a very
different nature, and there are legitimate reasons why [the employer] would treat them differently”).

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Colvin urges this Court to consider VAMC’s performance standards, arguing that since his
three identified errors were within the range of acceptable performance under the standards and
Norris’ performance was also acceptable as measured by the standards, they must be similarly
situated. However, while the fact that both Norris and Colvin met VAMC’s performance standards
makes them similar on a superficial level, it does not show that they engaged in the same conduct.
Colvin’s errors in filling prescriptions and Norris’ lapses in documentation are qualitatively different
things. Moreover, even if all actions deemed acceptable under VAMC’s performance standards were
considered the “same conduct,” the amount of harm that could have resulted from Colvin’s and
Norris’ respective disciplinary violations is a “differentiating or mitigating circumstance[] that would
distinguish their conduct or [VAMC’s] treatment of them for it.” Id. (quoting Ercegovich, 154 F.3d
at 352 (internal quotation marks omitted)).
Because Colvin has not identified a similarly situated non-protected employee who received
more favorable treatment, he cannot establish a prima facie case of racial discrimination. We
therefore do not reach the question of pretext under the McDonnell Douglas/Burdine analysis.
Colvin’s evidence and arguments regarding whether his termination was justified — e.g., the finding
of the Ohio Department of Job and Family Services that it was not — need not be addressed.
III.
We AFFIRM the district court’s grant of summary judgment in favor of VAMC.

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