United States District Court, N.D. Illinois, Eastern Division
June 13, 2005.
LINH THANONGSINH, Plaintiffs,
SCHOOL DISTRICT U-46 AND HANAN JAVETZ, individually and in his official capacity, Defendants.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant School District
U-46's ("District") and Defendant Hanan Javetz's ("Javetz")
motion for summary judgment. For the reasons stated below, we
grant Defendants' motion for summary judgment in its entirety.
The District is made up of fifty-three schools in the state of
Illinois, including Oakhill Elementary School ("Oakhill").
Plaintiff Linh Thanongsinh ("Thanongsinh"), who refers to himself
as "an Asian-American male of Chinese and Laotian descent," (A.
Compl. Par. 10), began working for the District in October of 1991. Thanongsinh contends that he was awarded a Group V Head
Custodian position ("Group V position") at Oakhill in 1996,
although the District claims that he did not achieve the Group V
position status until 2002.
In 2002, the District and Education Support Services
Organization ("Union"), the union that represented Thanongsinh,
began contract negotiations. During the negotiations the District
and the Union agreed to phase out the Group V positions at the
District's elementary schools through a certification process and
through natural attrition.
The final collective bargaining agreement in 1992 ("CBA"),
negotiated by the District and the union, contained the procedure
for conducting the certification for Group V positions. Under the
procedure, a participant was first given a written test and was
required to score at least a fifty. If the participant scored at
least a fifty on the written test, the participant could proceed
onward and take the "hands-on" portion of the certification
process and the participant would receive another score for that
test. In order for a participant to be certified, the average of
the two test scores of the participant had to be at least
seventy. If a participant did not achieve certification on the
first try, the participant could begin anew and start the
certification process again.
Thanongsinh took the written test for certification on November
8, 2002, and he received a score of 55. Thanongsinh then took the
"hands-on" test on March 14, 2003, which was administered by Ron
Dugo and Defendant Javetz. Thanongsinh received a score of 66.62
for the "hands-on" test, and since his average score was 60.81, which was below 70, he did not receive certification as
required under the CBA. Thanongsinh claims that Javetz purposely
gave Thanongsinh a low score because of Thanongsinh's race, so
that Thanongsinh would fail the certification process.
On May 3, 2003, Thanongsinh began the certification process
again. He scored a 46 on the written test, and, as required by
the CBA, he could not proceed to the "hands-on" test because the
score was below 50. On June 24, 2003, the District informed
Thanongsinh that since he had failed to achieve certification,
his job was declassified to a Category 2 Custodian as of July 1,
2003. On September 26, 2003, Thanongsinh began the certification
process for the third time and scored a 35.91 on the written test
which once again, under the CBA procedures, disqualified him for
the "hands-on" test.
In the instant action Thanongsinh has filed an amended
complaint which alleges violations of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.
(Count I), and violations of 42 U.S.C. § 1981 ("Section 1981")
Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, reveals that there
is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). In seeking a grant of summary judgment the moving party
must identify "those portions of `the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This
initial burden may be satisfied by presenting specific evidence
on a particular issue or by pointing out "an absence of evidence
to support the non-moving party's case." Id. at 325. Once the
movant has met this burden, the non-moving party cannot simply
rest on the allegations in the pleadings, but, "by affidavits or
as otherwise provided for in [Rule 56], must set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for
summary judgment is not simply a "metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when "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);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.
2000). The court must consider the record as a whole, in a light
most favorable to the non-moving party, and draw all reasonable
inferences that favor the non-moving party. Anderson,
477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th
Cir. 2000). DISCUSSION
I. Title VII Claims
Defendants move for summary judgment on the Title VII claim. If
an employer in a Title VII discrimination case brings a motion
for summary judgment, the plaintiff can proceed under the direct
or indirect approach in order to defeat the motion. Pafford v.
Herman, 148 F.3d 658, 665 (7th Cir. 1998). Under the direct
approach, the plaintiff can show through direct or circumstantial
evidence that the alleged harmful action of the employer was
"motivated by an impermissible purpose, such as [his] race or
national origin." Id.
In regards to a Title VII claim which is based upon a failure
to promote, for a prima facie case a plaintiff must establish
that he was: "(1) a member of a protected class; (2) qualified
for the position sought; (3) rejected for the position; and (4)
treated less favorably than a similarly situated candidate
outside h[is] protected class." Butts v. Aurora Health Care,
Inc., 387 F.3d 921, 924 (7th Cir. 2004).
If a prima facie case is established, there is a rebuttable
presumption of discrimination and the employer is required to
offer a "legitimate, non-discriminatory reason for the adverse
employment action." Cianci v. Pettibone Corp., 152 F.3d 723,
726 (7th Cir. 1998). If the employer provides such a reason, the
plaintiff must then show that the reason alleged by the employer
is merely a pretext for discrimination. Id. Thanongsinh does
not have sufficient evidence to proceed under the direct approach
and will need to proceed under the indirect approach. See Jordan
v. City of Gary, 396 F.3d 825, 832 (7th Cir. 2005) (stating
that "[t]o prove discrimination via direct evidence "essentially requires an
admission by the decision-maker that his actions were based on
the prohibited animus . . . [and that] [i]t should not be
surprising that in today's politically correct workplace
environment such admissions are rarely, if ever, made or
encountered. . . ."). In the instant action Defendants concede
that Thanongsinh is a member of a protected class.
A. Rejection for the Position
Defendants concede that Thanongsinh failed to achieve
certification on his first attempt during which Javetz allegedly
discriminated against him and Defendants admit that Thanongsinh's
job status was eventually downgraded due to Thanongsinh's failure
to achieve certification. Defendants thus took an adverse
employment action against Thanongsinh when they downgraded his
status. However, the record is also clear that Defendants gave
Thanongsinh every opportunity to achieve certification after the
alleged discrimination. Thanongsinh was allowed to take the
written test on two more occasions and he failed the written
In fact, Thanongsinh expressly admits pursuant to Local Rule
56.1 that "he did not prepare for the second certification test"
despite the fact that the principal of Oakhill "offered to assist
Mr. Thanongsinh in preparing for the test . . . [and] offered to
help him organize a study group." (R SF 44, 45). Thanongsinh also
admits pursuant to Local Rule 56.1 that "he did not study or
prepare for the third certification test." (R SF 51). Thus, the responsibility for
Thanongsinh's failure on his second and third attempts at the
certification process can be placed squarely on the shoulders of
Thanongsinh. Thanongsinh, through his own lack of diligence,
failed to achieve certification on his second and third attempts
which resulted in the declassification of his position. Thus,
although Thanongsinh has argued that the first "hands-on" test
scoring was unfair, that test at best resulted in only a
temporary action by the District. Thanongsinh admits that he was
given the second opportunity to achieve certification even before
the declassification of his position (R SF 43, 47), and that he
was given an opportunity after the downgrade to achieve
certification (R SF 48), which would have allowed him to regain
his Class V position status.
B. Whether Thanongsinh was Qualified
Defendants contend that Thanongsinh was not qualified for the
Group V position. A plaintiff is required to show that he was
qualified at the time of the adverse employment action. Hong v.
Children's Memorial Hospital, 993 F.2d 1257, 1262 (7th Cir.
1993). Defendants' only argument on this issue is that
Thanongsinh was not qualified because he failed in all three of
his attempts to attain certification. (Mem. 6). Pursuant to Local
Rule 56.1 Thanongsinh admits that he attempted to obtain
certification on three separate occasions and that he received a
failing score on all three attempts. (R SF 14, 36, 43, 46, 48,
50). Thanongsinh was given every opportunity to achieve
certification. The fact that on two of his three attempts he could not even proceed past the written portion of the
certification process which tests his knowledge of the
requirements for a Group V position is a clear indication that he
was not qualified for the position.
C. Similarly Situated Employees
Defendants argue that Thanongsinh has not pointed to similarly
situated employees outside the protected class that were treated
more favorably than him. An employee is similarly situated if the
employee "is one who is `directly comparable to [the plaintiff]
in all material respects.'" Rogers v. City of Chicago,
320 F.3d 748, 755 (7th Cir. 2003) (quoting Grayson v. O'Neill,
308 F.3d 808, 819 (7th Cir. 2002)); see also Jordan, 396 F.3d 825,
833 (7th Cir. 2005) (phrasing the fourth element of the prima
facie case as requiring a plaintiff to show that "the position
was granted to a person outside the protected class who is
similarly or less qualified than the plaintiff."); Snipes v.
Ill. Dep't. of Corrections, 291 F.3d 460, 463 (7th Cir. 2002)
(indicating that a similarly situated employee is identified by
comparing the employee's "performance, qualifications and
conduct" to the plaintiff's "performance, qualifications and
1. Proper Comparison for Similarly Situated Analysis
In the instant action, all Group V position custodians were
required to take the certification test. Defendants argue that
Thanongsinh would be similarly situated only with Group V position custodians that failed to obtain
certification and that employees that had achieved certification
would not be similarly situated. (Mem. 6). However, as explained
above, the scoring during the certification process by Javetz is
a basic part of the alleged discrimination in this suit.
Thanongsinh does not argue in either his complaint or his briefs
that the certification tests themselves were formulated in a
fashion in order to discriminate against persons of his race.
Rather he argues that he failed to attain certification because
of Javetz's biased scoring and because Javetz did not provide
similar assistance to Thanongsinh that was provided to other test
takers, such as giving them a calming instruction. The essence of
Thanongsinh's claim is that Javetz was biased in favor of
caucasian employees. Thanongsinh attempts to illustrate this
point by providing a breakdown of the passing rates for tests
administered by Javetz for caucasian applicants and minority
applicants. (Ans. 13). Thanongsinh also points to evidence that
Dugo thought that Javetz did not give fair scores to Thanongsinh
and that Javetz had an animosity towards Thanongsinh. (Ans. 8,
12). Thanongsinh also attempts to show that Javetz held the
animosity against Thanongsinh because of his race by showing that
Javetz made a comment about Thanongsinh's ability to speak
English. (Ans. 13). In fact, in the beginning of Thanongsinh's
answer to the instant motion, he states that he "does not
complain about Defendants' decision to administer a hands-on
certification test." (Ans. 1).
Thus, the proper comparison for the similarly situated analysis
in the instant action is between Thanongsinh and other employees
that sought Group V certification that did not share the same racial background as
Thanongsinh, and who achieved certification either through fair
testing or because the employees were given added assistance
which was not provided to Thanongsinh.
2. Similarly Situated Comparison
Thanongsinh identifies two individuals and one group of
individuals as similarly situated employees.
a. Mitchell Cain
Thanongsinh first identifies Mitchell Cain ("Cain") who is a
caucasian employee who took the "hands-on" test and received a
passing score. Thanongsinh contends that Javetz was one of the
persons that administered the test for Cain. Thanongsinh claims
that he was given a lower score on his first "hands-on" test
because he did not have an "M.S.D.S. book," but that Cain was not
given a lower score although Cain also did not have an "M.S.D.S.
book." However, Thanongsinh's contentions are based upon an
unverified score sheet he includes as an exhibit.
In ruling on a summary judgment motion a court can only
consider evidence that either would be admissible at trial or
evidence that represents other evidence or information that would
be admissible at trial. Scott v. Edinburg, 346 F.3d 752,
759-60, 760 n. 7 (7th Cir. 2003). In regards to the score
sheet for Cain's test that is relied upon by Thanongsinh,
Thanongsinh has pointed to no testimony or evidence that would lay a proper foundation for the introduction of the score
sheet at trial. In the testimony of Dugo that Thanongsinh refers
to on this issue, Dugo merely indicated what information he saw
on the paper given to him at the deposition.
For instance, Dugo was asked what was meant by a notation of
"No M.S.D.S. book" on the unverified score sheet when he was
asked "Is it your recollection after looking at this that
Mitchell Cain did not have an M.S.D.S. book for his . . . ."
(Dugo Dep. 59-60). Dugo responded "That's what this looks like
here." (Dugo Dep. 60). Dugo did not state that he recollected
that Cain did not have a book or that he could tell for sure that
Cain did not have a book from the score sheet in front of him.
Dugo did not indicate that the score sheet was Cain's or that he
knew that it was authentic. Dugo was also specifically asked if
he had any recollection as to whether Cain had a book with him
and Dugo responded: "No." (Dugo Dep. 60). Thanongsinh has not
shown that the score sheet or the information on the score sheet
would be inadmissible at trial and any deductions he makes based
upon the score sheet is pure speculation and could not be
considered by the trier of fact. Thus, Thanongsinh's theory that
Cain was given more favorable scoring is based upon pure
speculation and Thanongsinh has not shown that Cain was treated
more favorably than him.
b. Mike DiGioia
Thanongsinh also points to Mike DiGioia ("DiGioia") as a
similarly situated employee. DiGioia was assigned in charge of Oakhill when
Thanongsinh's position was declassified. However, as Thanongsinh
admits pursuant to Local Rule 56.1, DiGioia was a Group 9
Custodian, (R SF 55), and the certification process that
Thanongsinh undertook was for Group V positions. (R SF 7, 11,
14). There is no contention by Thanongsinh that DiGioia ever took
the "hands-on" test and thus no contention that DiGioia was given
unequal treatment during a "hands-on" test or that Javetz helped
administer such a test. Thus, Thanongsinh cannot show that
DiGioia was treated differently than Thanongsinh.
Also, since DiGioia was a Group 9 Custodian he is not similarly
situated as to Thanongsinh. Thanongsinh admits that DiGioia only
"attends to matters at Oakhill one day a week and attends to
other District elementary schools during the remainder of the
week." (R SF 56). DiGioia also testified that his job description
was much different than that of a Group V position.
Thanongsinh also argues that DiGioia was less qualified than
Thanongsinh. This argument might be applicable if Thanongsinh's
allegation of discrimination was based upon DiGioia being chosen
for being in charge of Oakhill instead of Thanongsinh. Even if
such was Thanongsinh's position, Thanongsinh has failed to point
to sufficient evidence for a reasonable trier of fact to conclude
that DiGioia was less qualified than Thanongsinh.
Also, DiGioia was simply placed in charge of Oakhill because
Thanongsinh's position was declassified and thus, DiGioia's
assignment was part of the general plan for Group 9 custodians to take over for the Group V positions.
There is no allegation that the certification process was a
scheme by the District to replace Asian Class V position
individuals such as Thanongsinh with non-Asian Group 9 position
individuals. Thanongsinh does not challenge the appropriateness
of the decision to require certification or the phase out of the
Group V positions and the placement of Group 9 individuals.
Thanongsinh's claim of discrimination is not based upon a
complaint that DiGioia was placed in charge of Oakhill instead of
Thanongsinh. Thanongsinh recognizes that DiGioia was placed in
charge as part of the recognized plan, and Thanongsinh's position
is merely that DiGioia would not have been placed in his current
position if Thanongsinh had not failed to receive certification.
c. Caucasian Applicants Tested with McNamara
Finally, Thanongsinh points to caucasian employees that were
tested by Cathy McNamara ("McNamara"). Thanongsinh claims that
McNamara testified that she always gave a calming instruction to
test takers prior to the "hands-on" test and that since Javetz
had administered tests with McNamara, he had participated in at
least a few tests where such calming instructions were given.
Thanongsinh claims that he received no such calming instructions
before his first "hand-on" test which was administered by Javetz.
However, McNamara merely testified that she told the test takers
to "keep safety in mind" and to "make sure" that they followed
all the steps "required by the book." (M. dep. 94). There is no
indication whatsoever that such a pre-test statement by McNamara would give an unfair advantage to
test takers or would have any material impact on the final test
scores. It was merely how McNamara chose to speak to the test
takers before administering the tests. Secondly, Thanongsinh
asserts in his answer that "McNamara administered the hands-on
test to fifteen white Head Custodians," (Ans. 7), and Thanongsinh
thus implies that McNamara only gave the instructions to
caucasian applicants. However, McNamara was asked during her
deposition in regards to the pre-test statements: "And you would
do that with every custodian testing?" and McNamara responded:
"Yes." (M. dep. 94). Thus, the evidence is clear that had
McNamara administered a test for Thanongsinh or for any
non-Caucasians, she would have given the same calming
instructions. There is no evidence pointed to by Thanongsinh that
Javetz routinely gave such a calming instruction to any test
takers and there is no evidence that McNamara participated in
Thanongsinh's first "hands-on" test. Thus, Thanongsinh, cannot
claim that he was similarly situated with the other applicants
tested by McNamara or was treated differently in any material
manner. Therefore, Thanongsinh has failed to point to sufficient
evidence that a similarly situated employee was treated more
D. Pretext Analysis
Defendants argue that even if Thanongsinh were to establish a
prima facie case, Defendants have presented a legitimate
non-discriminatory reason for the declassification of Thanongsinh's status and Defendants contend
that Thanongsinh has not pointed to sufficient evidence that the
reason is a pretext. Defendants assert that the certification
process was a course of action agreed to by the District and the
Union. Defendants contend that since Thanongsinh failed to
achieve certification it was proper to declassify his status.
Thanongsinh argues that the given reason is a pretext for
discrimination. To show a pretext a plaintiff must show that "the
reason put forth was not a true reason, but a pretext-`a
dishonest explanation, a lie rather than an oddity or an error.'"
Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299 (7th
Cir. 2004) (quoting Kulumani v. Blue Cross Blue Shield Ass'n,
224 F.3d 681, 685 (7th Cir. 2000)). To assess whether a given
reason is a pretext a court must determine "whether the employer
gave an honest explanation of its behavior." Hudson v. Chicago
Transit Authority, 375 F.3d 552, 561 (7th Cir. 2004). A
court does "not `sit as a super-personnel department that
reexamines an entity's business decisions.'" Id. See also Little
v. Illinois Dept. of Revenue, 369 F.3d 1007, 1012 (7th Cir.
2004) (stating that "even if the business decision was
ill-considered or unreasonable, provided that the decision maker
honestly believed the nondiscriminatory reason he gave for the
action, pretext does not exist.").
Thanongsinh has given various reasons as to why Defendants'
given reason should be deemed pretextual. Thanongsinh claims that
since he had already been performing the Group V position duties
it is not believable that he would fail the "hands-on" test which
dealt with the performance of the job. Thanongsinh also points to
testimony by Dugo that indicated that Thanongsinh had performed
tasks for the Group V position prior to his first "hands-on" test. We
disagree that such evidence is an indication of a pretext. Simply
because Thanongsinh had been performing duties for a Group V
position does not mean that he understood them or mean that he
could or should pass the particular test designed by the
District. Also, just because Thanongsinh may have performed and
understood the duties of a Group V position, does not
automatically mean that he would not make mistakes on the test.
To infer that he failed because of some unfair scoring would be
unreasonable and pure speculation.
Thanongsinh also claims that Javetz did not score Thanongsinh
in the same manner as he did for caucasian applicants.
Thanongsinh points to summaries of the percentages of pass rates
according to racial groups. However, such an assertion is pure
speculation on the part of Thanongsinh and is largely irrelevant.
The relevant question is not what racial group received what
scores. Rather the pertinent inquiry is whether all applicants
received fair scores based upon their performance on the tests.
The percentages of pass rates are not such that they would allow
for any reasonable inference that Javetz was biased.
Thanongsinh also argues that there was evidence that Javetz
held an animosity towards Thanongsinh. Thanongsinh points to
Dugo's testimony in support of this proposition. However, Dugo
merely stated that there was "agitation between Hanan and Linh"
during the test because Javetz became frustrated with
Thanongsinh. (Dugo dep. 26). Dugo stated that during the test "it
was a stressful time" and there was "tension in the air between Hanan and Lihn," (Dugo dep. 30-31),
but Dugo did not explain such comments or indicate that the
"stress" and "tension" was anything other than a natural
atmosphere that might develop during a test which is often a
stressful experience for a test taker and could be a stressful
experience for the administrator of the exam if the administrator
becomes frustrated or lacks patience. Dugo does not proceed
onward in this testimony to explain if the tension was because
Javetz disliked Thanongsinh because of his race. Dugo states
nothing during his testimony that would allow one to reasonably
infer that the "stress" and "tension" was due to racial animus by
Finally, Thanongsinh claims that when he confronted Javetz
about the score on the first "hands-on" test, Javetz told him
that he "should learn better English." (Ans. 13). Defendants
contend that Javetz's comment was intended as a helpful hint, but
Thanongsinh claims that it was intended as an insult to
Thanongsinh based on his race. It would be unreasonable to deem
such a comment in the abstract as an insult. Also, regardless,
the comment is not sufficient evidence to meet the pretext
requirement even when considered with the other evidence
mentioned above that was identified by Thanongsinh. Therefore,
even if Thanongsinh could establish a prima facie case he has
not pointed to sufficient evidence that the given reason was a
pretext. E. Individual and Official Capacity Claims Against Javetz
Defendants move for summary judgment on the Title VII
individual capacity and official capacity claims against Javetz.
Thanongsinh concedes that Defendants are entitled to summary
judgment on the individual capacity claim. (Ans. 14, n. 5). In
regards to the Title VII official capacity claim, such a claim is
synonymous with a claim against the public entity itself since
Javetz was employed by the District. See Gossmeyer v. McDonald
128 F.3d 481, *494 (7th Cir. 1997) (stating that "[a]n
official capacity claim against an individual defendant
constitutes a claim against the government entity itself.").
Since the District is named as a Defendant, the claim against
Javetz in his official capacity is redundant. Therefore, we grant
Defendants' motion for summary judgment on the Title VII
individual capacity claim and Title VII official capacity claim
II. Section 1981 Claims
Defendants move for summary judgment on the Section 1981 claims
against the District and against Javetz in both his official and
A. Claim against District and Official Capacity Claim against
For a Section 1981 claim against a government body, a plaintiff
is required to "show that the violation of h[er] `right to make
contracts' protected by § 1981 was caused by a custom or policy
within the meaning of Monell and subsequent cases." Looper v. Maintenance Serv., Inc. v. City of Indianapolis,
197 F.3d 908, 913 (7th Cir. 1999); see also Smith v. Chicago
School Reform Bd. of Trustees, 165 F.3d 1142, 1148-49 (7th
Cir. 1999) (stating that "recovery against a governmental body
under § 1981 may not be based on respondeat superior" and that
"[t]he plaintiff must show that the body's official policy or
custom was discriminatory."). In regards to the Section 1981
claim against Javetz in his official capacity, such a claim is
synonymous with a claim against the public entity itself since
Javetz was employed by the District. Gossmeyer,
128 F.3d at 494. In the instant action, Thanongsinh has failed to allege or
point to evidence of a policy or practice by the District that is
a basis for the alleged discrimination against him in violation
of Section 1981. Looper, 197 F.3d at 913. Therefore,
Thanongsinh has failed to establish that either the District or
Javetz, in his official capacity, discriminated against
Thanongsinh in violation of Section 1981. Gossmeyer,
128 F.3d at 494.
B. Individual Capacity Claim against Javetz
In order to establish a claim under Section 1981, a plaintiff
"must show that (1) [he] [is] a member? of a racial minority;
(2) the defendant had an intent to discriminate on the basis of
race; and (3) the discrimination concerned one or more of the
activities enumerated in the statute (i.e., the making and
enforcing of a contract)." Morris v. Office Max, Inc.
89 F.3d 411, 413 (7th Cir. 1996). Thanongsinh has not pointed to any
discrimination other than the alleged biased scoring by Javetz on the first "hands-on" test. Accordingly, Thanongsinh has not
pointed to sufficient evidence to prove that Javetz intended to
discriminate against Thanongsinh because of his race. Morris,
89 F.3d at 413. Thanongsinh attempts to support his Section 1981
claim against Javetz by arguing that Javetz was a policy maker at
the District because he helped design the certification process.
However, even if that were true, it is of no moment in the
instant action because, as explained above, Thanongsinh has not
challenged the content of the District's certification process.
Further, Thanongsinh has failed to point to sufficient evidence
that shows that Javetz's alleged conduct towards Thanongsinh
"concerned" the "making and enforcing of a contract." Morris,
89 F.3d at 413. Therefore, we grant the District's motion for
summary judgment on the Section 1981 claim against Javetz in his
Based on the foregoing anglais, we grant Defendants' motion for
summary judgment in its entirety.
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