Eggelston v. Nexteer Automotive Corp. et al
Filing
39
OPINION and ORDER Granting in Part Defendant's 32 MOTION for Summary Judgment. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ERIC EGGELSTON,
Plaintiff,
v.
Case No. 16-cv-13368
Honorable Thomas L. Ludington
NEXTEER AUTOMOTIVE CORP,
Defendant.
__________________________________________/
OPINION AND ORDER GRANTING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
On September 16, 2016, Plaintiff Eric Eggelston initiated the above-captioned action by
filing his complaint against his former employer, Defendant Nexteer Automotive Corporation,
and his former local union, United Automobile Aerospace and Agricultural Implement Workers
of America, Local 699 (“Local 699” or “the Union”).1 In his complaint Plaintiff alleges that
Defendant Nexteer wrongfully terminated him from his A-bucket position in retaliation for his
exercise of his rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq,
because of his race in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), the Michigan’s ElliottLarsen Civil Rights Act (“ELCRA”), M.C.L. 37.2202, and in retaliation for opposing a violation
of ELCRA in violation of MCL 37.201(a). Defendant Nexteer (hereinafter “Defendant”) moved
for summary judgment on December 21, 2017. Plaintiff responded on January 11, 2018, and
Defendant replied on January 25, 2018. ECF Nos. 32, 35, 36.
1
On November 3, 2016 Defendant Local 699 filed a motion to dismiss Plaintiff’s claims against it pursuant to
Federal Rule of Civil Procedure 12(b)(6). The Court entered an order on January 20, 2017, granting the motion and
dismissing Defendant Local 699.
I.
Plaintiff Eric Eggelston is a resident of Saginaw County, Michigan. On or about July 1,
2010, Plaintiff was hired as an assemblyman by Defendant Nexteer, a corporation domiciled in
Delaware and operating a facility in Saginaw, Michigan. As a result of his employment with
Nexteer, Plaintiff became a member of Local 699, a labor organization domiciled in the state of
Michigan. Local 699 is a local chapter of the International United Automobile Aerospace and
Agricultural Implement Workers of America (“UAW”). He was therefore party to a Collective
Bargaining Agreement (“CBA”) between Defendant Nexteer and Defendant Local 699.
Early into his employment, Plaintiff observed that Local 699 officials were not
adequately representing African-American members in pursuing grievances. Eggleston Dep. at
21-22, ECF No. 35-3. Plaintiff therefore began assisting African-American employees in filing
appeals. On one occasion spanning from late 2010 to early 2011, Plaintiff successfully assisted a
man named Larease Williamson in appealing a wrongful discharge. Id. at 26–29. Prior to
submitting the appeal, Plaintiff spoke with Site Industrial Relations Manager Dereon Pruitt2 in
their church’s parking lot. Id. at 34. Prior to handing Mr. Pruitt the appeal letter, Plaintiff
explained that they had an opportunity to right the wrong. Id. Plaintiff contends that Mr. Pruitt
physically slapped the appeal out of Plaintiff’s hands and stated that Plaintiff had no business in
doing that and demanded that he mind his own business. Id. Plaintiff also contends that other
people in the parking lot had to get in between Mr. Pruitt and Plaintiff and separate them. Id. Mr.
Pruitt denies that this altercation took place. Pruitt Dep. at 7, ECF No. 32-3.
After word got out that Plaintiff successfully assisted Mr. Williamson, other employees
asked Plaintiff to assist them with writing grievances and appeals. Id. at 30. On March 30, 2011 a
union Committeeman, Joseph Laurin, came up behind Plaintiff and threatened him, stating,
2
Mr. Pruitt was a friend of Plaintiff’s who attended his church.
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"Eric, either you stop this bullshit or I’m going to do something to you or about you." Id. at 33,
36; Resp. at 4. Plaintiff attempted to file a complaint about this incident in Defendant’s labor
relations office with representative Amy Schofield. Id. at 36. She told him she would not accept
a complaint regarding the threat, and that Plaintiff would have to go the union. Id. at 37. Plaintiff
pursued his complaint with the union, but they took no action. Id. Plaintiff then sought a personal
protection order from a local court against Mr. Laurin. Id.
On January 6, 2012, Plaintiff filed a racial discrimination complaint with the International
Union. Id. at 38–39. Less than two weeks later, Plaintiff’s supervisor issued him a discipline,
suspending him for the balance of his shift plus two weeks alleging that he stopped the assembly
line. Id. at 40. Plaintiff filed a successful grievance and received back pay. Id. at 41. After
returning from the suspension, Plaintiff was informed that he was banned from Plant 3 and
involuntarily transferred to Plant 4. Id. at 24–25. On April 2, 2012, Plaintiff’s supervisor,
Shannon Decker, issued Plaintiff a discipline for unnecessarily making scrap. 4/2/12 Discipline,
ECF No. 35-8. Ms. Decker asked if this was the first time he had done this. Eggleston Dep. at
66–67. Plaintiff responded affirmatively and Ms. Decker stated that she would recommend a
suspension of the balance of his shift plus one day. Id. About 20 minutes later, Ms. Decker called
back and said she had to give Plaintiff a penalty of the balance of his shift plus 30 days. Id. at 67.
Plaintiff subsequently learned that Ms. Decker had spoken with someone at Labor Relations,
possibly Mr. Pruitt, who gave the directive concerning the penalty. Id. Plaintiff filed a grievance,
and was ultimately returned to work a few days later with back pay, and the discipline was
removed from his record. Id. at 72.
On May 23, 2012, Ms. Decker issued Plaintiff a discipline for unexcused absences from
May 16 to May 18, 2012. 5/23/12 Discipline, ECF No. 35-10. Plaintiff contended that his
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supervisor altered the request by changing May 18 to May 15, and writing “2-days” next to it.
5/25/12 Grievance, ECF No. 35-12; Resp. at 7. Plaintiff was subsequently promoted to a position
in the “A Bucket.” Eggleston Dep. at 75, 78. In 2014, Denny Getgood became the Human
Resources Business Partner supervising Plaintiff’s area. Plaintiff had previously encountered
Getgood in the hallway. On one occasion Getgood asked Plaintiff if he was “still raising hell.”
Id. at 90.
On March 14, 2014, Plaintiff requested FMLA leave for sleep apnea. Id. at 83. On March
27, 2014, Plaintiff submitted FMLA forms, including his medical certification. Id. at 83–84;
Cert. Form, ECF No. 35-14. Mr. Getgood provided Plaintiff with a Designation Notice which
indicated that his leave request was denied on April 7, 2014. Designation Notice, ECF No. 3521. Mr. Getgood did not provide a reason for the denial. Eggleston Dep. at 97, 100. Plaintiff
went through his union to obtain information concerning the reason for the denial of FMLA
leave. Id. Plaintiff testified that he was the only African American that was denied FMLA leave
without a reason. Id. at 106. Plaintiff filed a complaint with the union. Id. at 108–109.
On September 4, 2015, Mr. Getgood informed Plaintiff that he was terminated for theft
from the market.3 Id. at 126. Mr. Getgood interviewed Plaintiff, asking him several questions
about how he paid for food from the market, why he stole items from the market, and whether
Plaintiff was aware of the market’s policies and procedures. Id. at 127. Plaintiff explained that he
typically paid with either a market card or a debit card. Plaintiff also explained that there were no
policies for returns and exchanges, and that he previously filed five complaints relating to the
process for exchanging a bad product. Id. at 129. Plaintiff explained that there were occasions
3
Nexteer contracts with a vending service, Market Twenty 4 Seven, who stocks and maintains an onsite market. The
market is not staffed. Employees are to pay for items at a self-checkout scanner. Market Twenty 4 Seven is a
vending service offered by Continental Café, Inc. (continentalserves.com). During Mr. Getgood’s deposition, he
refers to the market as “Canteen Services.” During Mr. Pruitt’s deposition, he refers to the market as “Continental
Canteen.” They all refer to the same entity. Getgood Decl. at ¶ 3, ECF No. 32-4.
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where he would replace spoiled products, such as sandwiches or salads. Id. at 130–31. Plaintiff
testified that he spoke with someone at an 800 number who forwarded the information to an
employee who stocks the market. Id. Plaintiff testified he spoke with that individual in person
who told him what to do if he purchased a bad item. Id. He testified that he would go in, hold the
product up to the camera and rotate it. Id. He would then place it on the counter at the checkout
kiosk. Id.
He testified regarding one such instance where he had purchased a sandwich that had
gone bad costing about $7.00. When he returned it he no longer wanted a sandwich so he would
take a pop. Id. at 95, 131–32. He would record these transaction in a log he kept in his locker.
Eggleston Dep. at 160.4 On one occasion he spoke with a market representative who offered to
refund his market card. Id. at 134. He wanted a refund on his debit card which they could not
provide, and he was not willing to wait three hours to receive a refund in person. Id. at 134. The
employee authorized him to return the bad item by holding it up to the camera and take a bag of
combos as a replacement. Id. Plaintiff further explained that this was common practice, as there
were frequently many items left on the counter indicating someone had returned them. Id. at 135.
Notwithstanding Plaintiff’s explanation, Mr. Getgood terminated Plaintiff. 9/4/15 Discipline,
ECF No. 35-15.
Mr. Getgood testified that the alleged theft was brought to his attention by members from
loss prevention at Canteen Services. Getgood Dep. at 10, ECF No. 32-5. He met with the
Canteen Services employees as well as Mr. Pruitt. Id. at 11. The Canteen Services employees
“believed they had pictures of the gentleman that was stealing from the Market.” Id. at 10. They
4
The log has not been produced. Plaintiff contends he does not have the log and that it is still in Nexteer’s
possession. Eggleston Dep. at 160. Mr. Getgood did not recall Plaintiff stating that he had property to recover in his
locker after he was terminated, but the standard procedure would have been for a member of management, security,
or the union to gather the terminated employee’s belongings. Getgood Dep. at 33-34.
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did not provide Mr. Getgood copies of those pictures at that time. Id. at 11. Mr. Getgood did not
review the surveillance footage until after Plaintiff was terminated. Id. at 13. Rather, he made the
termination decision based on what Plaintiff reported during the interview. Id. at 23. Plaintiff’s
committeeperson Robert Essenmacher was also at the interview as well as an undisclosed
witness from Nexteer management. Id. at 14.
At the interview, Mr. Getgood asked if Plaintiff had taken anything from the market
without paying. Id. at 15. Plaintiff indicated that he had. Id. “One of his answers was that if he
had bought product, a salad that the lettuce was not good, or something that did not taste good he
would return it. His statement is that he would return it and grab something either that day or a
couple days later.” Id. at 16. According to Mr. Getgood, Plaintiff told him that “he never talked
to anybody from Canteen Services.” Id. During the interview, Mr. Getgood took handwritten
notes, which he typed up afterward and attached to his declaration. The notes contain the
following discussion:
Q11: Is there a time any time that you have taken product without paying?
A11: If I go in and buy a sandwich, if it has bad meat, lettuce, chicken salad, I
take the sandwich back in by the check out, then if I’m hungry right then I’ll grab
something of the same amount or close to it.
Q12: What happens if your not hungry right then?
A12: I’ll come back the next day or a couple of days later and take something of
similar value or different product if they have not restocked.
Q13: Have you ever talked to someone, a member of management?
A13: Shawn when he was in S6. (followed up with Shawn, never talked to Eric
about this.)
Getgood Decl. Ex. 1, ECF No. 32-4 (emphasis added). Based on the context and the
response, it is unclear if Getgood was referring to company management or Canteen Services
management, nor is it clear who Plaintiff was referring to in his response when he identified
“Shawn.”
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Mr. Getgood further testified that Plaintiff was aware of the market’s return policy, and
that Plaintiff in fact told Mr. Getgood what it was: “The policy is there is a white envelope . . .
you fill out your name, what you had purchased, the dollar value, and you turn that in. And then
within three or four days, that actually is returned to you through the Union Rep. Mr. Eggleston
actually told me that.” Id. at 17. Mr. Getgood testified that Plaintiff informed him he never
utilized the market’s return policy, as “it was unreasonable for him to leave any kind of note.” Id.
at 17, 19. Mr. Getgood’s testimony does not conform to his contemporaneous notes:
Q15: How often did you do this?
A15: Salads . . .often
Q16: How many times?
A16: Can’t say, greater than 5.
Q17: You know that there is a resolution process for the satellite area?
A17: Yea, fill out the form 3 or 4 days the Union calls you down.
Q18: The things you have left, did you leave a note, any communication?
A18: I have looked no way to do so. (he reiterated several times he has looked for
ways to communicate).
...
Q21: You return a product. No note. No communication. Returned immediately or
several days taking something of similar value?
A21: No one has ever said anything to me, leaving a note is unreasonable.
...
Q22: Have you asked the union for help? You ran as a committeeman, you know
the grievance process correct?
A22: Never asked the Union directly
...
Q25: Eric, do you have anything to add?
A25: I have never stolen anything from Nexteer or any of its vendors, period. I’m
not aware of any return policy. I have looked.
Getgood Decl. Ex. 1, ECF No. 32-4 (emphasis added). Based on this discussion it is
unclear if the “resolution process for the satellite area” refers to the Union grievance process or
to the market’s return policy, or if they are the same thing. Thus, it is unclear if Plaintiff was only
aware of a union grievance policy, or of the market’s return policy, or both. Plaintiff specifically
stated he was not aware of a return policy. Exhibit 2-4 of the Getgood Declaration includes
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Continental Canteen’s refund request form, comment forms, and a comment box. ECF No. 32-4.
Plaintiff specifically testified, however, that “there is no policies for returns or exchanges.
There’s no written policy, there’s nothing posted in the store. And I have filed five complaints as
it relates to how do we in our plant return an item or exchange an item that is bad.” Eggleston
Dep. at 131. Based on what Plaintiff said in the interview, Mr. Getgood terminated him for
violation of shop rule two: “theft or misappropriation of property of employees or of the
Company.” Id. at 21; Shop Rules, ECF No. 35-17.
Greg Ledger, a Caucasian male employee, was terminated for stealing a pop. Pruitt Dep.
at 19. Dave Smith, also a Caucasian male employee, was terminated for stealing plates for a
party. Id. Mr. Ledger and Mr. Smith were both later reinstated under a “Last Chance Agreement”
which was negotiated with the union. Id. at 20-21. Mr. Pruitt was “involved” in Mr. Ledger and
Mr. Smith receiving last chance agreements.5 Id. at 21-22. Mr. Pruitt met with the union
chairperson, Bob Glaser, in response to Plaintiff’s grievance, and Mr. Glaser asked for a Last
Chance Agreement for Plaintiff as well. Id. at 21. Mr. Pruitt did not agree to give Plaintiff a Last
Chance Agreement, because he didn’t believe that the case warranted it. Id.
When asked why Mr. Ledger and Mr. Smith were treated differently than Plaintiff, Mr.
Pruitt responded, “well at the end of my investigation looking into those cases, they didn’t
actually steal.” Id. at 22. Mr. Pruitt was asked “Do you know how it came to be that they were, I
guess, incorrectly accused of engaging in theft?” Id. at 31. Mr. Pruitt responded that Mr. Smith
had taken plates from the cafeteria in response to a request from his supervisor to “bring them up
for some kind of celebration.” Id. at 31. With respect to Mr. Ledger, Mr. Pruitt responded that
“Ledger was in there getting some fountain – he discovered he gets fountain pop whenever he’s
5
It is unclear who was responsible for their termination. Mr. Getgood, the Human Resource Business Partner who
terminated Plaintiff, was not involved in the termination of Mr. Ledger or Mr. Smith nor was he involved in the
grievance process related to their terminations. Getgood Decl. at ¶ 12, ECF No. 32-4.
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in there working, so that’s why.” Id. When asked “who said that he gets fountain pop whenever
he’s in there working?” Mr. Pruitt “the cafeteria did.” Id. When asked why they were given a
Last Chance Agreement, and not just returned to work, Mr. Pruitt responded “that was the
agreement I made with the union. Ledger had been fired before, and had Dave Smith been fired
before.” Id. at 22. Mr. Pruitt was unclear if the cafeteria was affiliated with Continental Canteen
or “Sutherlands.” Id.
When asked if there were any other allegations against Mr. Ledger or Mr. Smith, Mr.
Pruitt responded “not that I can recall.” Id. at 30. Plaintiff testified that he had the following
conversation with Mr. Ledger following his termination: “I called him up. The -the Union
president said, ‘Eric, this is some bullshit and they know it. But they getting rid of you, so you
wouldn't run for election.’ He gave me Greg Ledger's phone number. So I called Greg up and I
was like, ‘Man, what's- what happened to you?’ And he said, ‘Hey, they fired me for theft like I
heard they did you and then they brought me back on a last chance grievance.’ I said. ‘Greg,
what was you doing?’ He said ‘I went to use my key, I go In the store and every day I would get
me a Coca-Cola.’” Eggleston Dep. at 153-154.
Mr. Pruitt testified that upon reviewing the surveillance footage, he determined that
Plaintiff did indeed steal. Id. at 22-23. Mr. Pruitt testified that the market had a process for
returning spoiled food, involving filling out a card and waiting for a refund. Id. at 23. He testified
that he knows that is the process because “it’s in the market,” and further testified that he has
used the market. Id. Although he had never personally submitted a refund request, he knows that
people have been refunded. Id. The meeting minutes from the Step 5 grievance meeting reflects
the following summary:
Plant 4:
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9353 – Eric Egleston – Union – Discharge SR. 2 stealing from the market. Other EEs
were returned that had stolen from the market. Need the zip drive with the video. Mngt.
Disp. = Dereon states the other two who were brought back for stealing were the last two
to return for theft. This EE stole hundreds of dollars’ worth of food.
ECF No. 19.
II.
A motion for summary judgment should be granted 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). The moving party has the initial burden of identifying where to look
in the record for evidence “which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the opposing party who must set out specific facts showing “a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation
omitted). “The party opposing summary judgment cannot rest on its pleading or allegations, to
prevail, they must present material evidence in support of their allegations.” Leonard v.
Robinson, 477 F.3d 347 (6th Cir. 2007) (citing Celotex Corp v. Catrett, 477 U.S. 317 (1986)).
The Court must view the evidence and draw all reasonable inferences in favor of the non-movant
and determine “whether the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52.
III.
A.
A plaintiff can establish a prima facie case of race discrimination by relying on direct or
indirect evidence of discrimination. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985); Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir.1985). Where a Plaintiff relies
on indirect evidence, the McDonnell Douglas burden shifting framework applies, and a Plaintiff
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must show 1) he was a member of a protected class, (2) he suffered an adverse employment
action, (3) he was qualified for the position, and (4) that adverse employment action occurred
under circumstances giving rise to an inference of discrimination. In re Rodriguez, 487 F.3d
1001, 1008 (6th Cir. 2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972).
The fourth element of the prima facie case can be established by showing that the plaintiff was
replaced by a person outside his protected class, or was treated differently than a similarly
situated person of a different class for the same or similar conduct. Mitchell v. Toledo Hosp., 964
F.2d 577, 582–83 (6th Cir. 1992).
If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory rationale for the adverse employment
action. In re Rodriguez, 487 F.3d at 1008. Once the employer does so, the burden shifts back to
the plaintiff to demonstrate that the articulated reason is a mere pretext for discrimination.
Claims of race discrimination brought under the ELCRA are analyzed under the same standards
as claims of race discrimination brought under Title VII.” Phillips v. UAW Int’l, 149 F. Supp. 3d
790, 806 (E.D. Mich. 2016) (quoting Dotson v. Norfolk S. R.R. Co., 52 Fed. App’x 655, 657 (6th
Cir. 2002)).
B.
i.
Because Plaintiff offers no direct evidence of racial discrimination, the burden shifting
framework established in McDonnell Douglas applies. In re Rodriguez, 487 F.3d 1001, 1008 (6th
Cir. 2007) (citing McDonnell Douglas Corp., 411 U.S. at 802). The parties do not dispute, nor
can it reasonably be disputed, that Plaintiff has met the first three elements of his prima facie
case for racial discrimination: 1) he was a member of a protected class (African-American), (2)
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he suffered an adverse employment action, and (3) he was qualified for the position. In re
Rodriguez, 487 F.3d at 1008. The disagreement centers on whether he has met the fourth
element, namely whether he was treated differently than similarly situated employees for the
same or similar conduct.
Plaintiff’s argument is straightforward: “Plaintiff submits that he was treated less
preferentially than Mr. Ledger and Mr. Smith,6 who were both accused of engaging in the same
misconduct, violation of Shop Rule 2, but were returned to work on a last chance agreement by
Mr. Pruitt.” Resp. at 35. Defendant contends that “Eggleston’s two alleged ‘comparators’ were
not similarly situated because they dealt with a different decision-maker, worked in a different
department, and did not engage in conduct of comparable seriousness to Eggleston.” Mot. at 12,
ECF No. 32. Defendant further argues that “it is undisputed that Nexteer treated them the same
as Eggleston by terminating their employment when Nexteer believed they had engaged in
theft.” Id.
As Defendant correctly notes, “It is fundamental that to make a comparison of a
discrimination plaintiff’s treatment to that of non-minority employees, the plaintiff must show
that the ‘comparables’ are similarly-situated in all respects.” Mitchell v. Toledo Hosp., 964 F.2d
577, 583 (6th Cir. 1992); see also Town v. Mich. Bell Tel. Co., 568 N.W.2d 64, 70 (Mich. 1997).
The plaintiff and the comparators “must 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.” Mitchell, 964 F.2d at 583.
6
Plaintiff testified that Mr. Ledger and Mr. Smith are both Caucasian men. Eggleston Dep. at 52, 150. Defendant
did not dispute this testimony.
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First, it is not dispositive that Plaintiff and his comparators worked in different
departments and had different supervisors, as the Sixth Circuit has recognized:
Indeed, we have held, relying on Ercegovich, that a plaintiff claiming racial
discrimination was similarly situated to a non-protected employee even though
the two individuals worked in different ... departments and had different
supervisors .... The fact that the two individuals had different supervisors did not
prevent them from being deemed similarly situated, we reasoned, because all of
the people involved in the decision-making process, including Plaintiffs
immediate supervisor and the department manager, were well-aware of the
discipline meted out to past violators, including [the non-protected employee],
who had violated the policy on at least two occasions.
McMillan v. Castro, 405 F.3d 405, 413–414 (6th Cir. 2005) (emphasis in original) (internal
citations and quotations omitted). Importantly, the fact that Plaintiff and his comparators had
different supervisors is not dispositive here. The relevant fact is that they dealt with the same
supervisor. That is, Plaintiff dealt with the same decision maker as Mr. Ledger and Mr. Smith
with respect to the post termination grievance. The facts giving rise to the claim of disparate
treatment relate to the reinstatement of Mr. Ledger and Mr. Smith, and the refusal to reinstate
Plaintiff. Mr. Pruitt was a key decision maker, if not the only decision maker, with respect to the
decision to reinstate Mr. Ledger and Mr. Smith. Indeed, he testified that he was “involved” with
the decision. Pruitt Dep. at 21. He further testified that “at the end of my investigation looking
into those cases, they didn’t actually steal.” Id. at 22. Mr. Pruitt was also the key decision maker
with respect to Plaintiff’s request for reinstatement. Mr. Pruitt met with the union chairperson,
Bob Glaser, in response to Plaintiff’s grievance, and Mr. Glaser asked for a Last Chance
Agreement for Plaintiff as well. Id. at 21. Mr. Pruitt did not agree to give Plaintiff a Last Chance
Agreement because he concluded that Plaintiff stole. Id.7
7
Defendant argues in its reply brief that the Court has “already dismissed Eggleston’s claims related to the
grievance process.” Reply. at 2, ECF No. 36 (emphasis). This is an overly broad statement. In fact, the Court only
dismissed Plaintiff’s claims against the union for failure to adequately represent him and for retaliation. ECF No. 18.
Dismissal of these claims against the Union has no effect on Plaintiff’s racial discrimination claim against Nexteer
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Defendant also argues that “Eggleston’s conduct was also vastly dissimilar to Smith’s
and Leger’s. Leger took fountain pop from the Market Place while he was working there, and
Smith took supplies for a company function . . . By Contrast, on nine separate occasions over a
period of four days, Eggleston took eleven items from the Market Place without paying for
them.” Mot. at 13. Defendant further notes that “after Smith and Leger filed grievances
contesting their terminations, Pruitt investigated further and concluded that neither Smith nor
Leger had actually stolen any items. Nexteer therefore returned them to work.” Id. Indeed,
Defendant produced a flash drive containing video footage of Plaintiff taking items without
paying for them. Eggleston Dep. Ex. 12.
With respect to Mr. Smith, Defendant’s argument is well taken. Mr. Pruitt explained that
he determined Mr. Smith was in fact not stealing the plates but was taking them for use at a
company function, and did so at the direction of a supervisor. Pruitt Dep. at 31. On these facts,
no reasonable jury could determine that Plaintiff was similarly situated to Mr. Smith.
However, there does not appear to be any material difference between Plaintiff’s conduct
and Mr. Ledger’s conduct. The items Plaintiff took were generally limited to soda, snacks, and
comparable items. This is not meaningfully different from Mr. Ledger taking a fountain pop each
day he worked in the cafeteria. It is unclear from the record how long Mr. Ledger had been
working the cafeteria and how long he had been engaging in his practice of taking a fountain pop
each time he worked. Indeed, it is entirely possible based on the record that the value of fountain
pop Mr. Ledger took exceeded the value of the items Plaintiff took.8 In any event, Plaintiff need
not prove that he engaged in identical conduct to establish that he was similarly situated to Mr.
for Pruitt’s failure to grant him a last chance agreement during union negotiations. Defendant also asserts that Mr.
Pruitt is not responsible for the union’s decision to withdraw his grievance. This overlooks the importance of Mr.
Pruitt’s decision to reinstate Mr. Ledger and Mr. Smith, and his decision not to reinstate Plaintiff.
8
More importantly, as will be discussed below, the value of the items taken was not considered by Mr. Pruitt in
making his decision. Pruitt Dep. at 20.
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Ledger. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (“The
plaintiff need not demonstrate an exact correlation with the employee receiving more favorable
treatment in order for the two to be considered ‘similarly-situated’”); Martin v. Toledo
Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008) (“The district court’s framing of
the similarly-situated standard is too narrow and necessitates an exact correlation not required by
the law of this circuit. The prima facie showing is not intended to be onerous.”). It is sufficient
that Plaintiff has produced evidence that he and Mr. Ledger were terminated for theft, filed a
grievance, and that Mr. Pruitt gave Mr. Ledger a last change agreement but not Plaintiff.
ii.
If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory rationale for the adverse employment
action. In re Rodriguez, 487 F.3d at 1008. Here, Defendant has articulated a legitimate, nondiscriminatory reason for the decision not to reinstate Plaintiff. Mr. Pruitt testified that he did not
agree to give Plaintiff a Last Chance Agreement because he determined that Plaintiff stole. Pruitt
Dep. at 21. He made this determination by looking at the video evidence. Id. at 23. Indeed, the
video evidence showed Plaintiff taking several items without paying over a period of several
days. Furthermore, Mr. Pruitt had personal knowledge of the return policy based on his own use
of the market. Id. He testified that the return policy involved filling out a card if a customer is
dissatisfied with a product and waiting for a refund. Id. Thus, Mr. Pruitt articulated a legitimate,
non-discriminatory reason for the adverse action.
iii.
Once the employer does so, the burden shifts back to the plaintiff to demonstrate that the
articulated reason is a mere pretext for discrimination. In re Rodriguez, 487 F.3d 1001 (6th Cir.
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2007). Plaintiff can demonstrate pretext in three ways: 1) by showing that the proffered reasons
had no basis in fact; 2) that the proffered reasons did not actually motivate the adverse decision,
or 3) that the proffered reasons were insufficient to motivate the adverse decision. Scuderi v.
Monumental Life Ins. Co., 344 F. Supp. 2d 584, 595 (E.D. Mich. 2004); Manzer v. Diamond
Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (overruling on other grounds
recognized by Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009)).
a.
Plaintiff cannot show that the proffered reason had no basis in fact. Mr. Pruitt was asked
about the investigation he conducted to determine whether Plaintiff actually stole, and he
responded that he reviewed the video evidence. Pruitt Dep. at 22–23. The video evidence shows
Plaintiff taking items without paying for them. Eggleston Dep. Ex. 12, ECF No. 32-2 (produced
via flash drive). Mr. Pruitt testified that the market had a process where you can fill out a card
and get money returned to you if you’re not satisfied with the product. Pruitt Dep. at 23. He
knew this was the process because “it’s in the market.” Id.
Plaintiff has an extensive explanation as to why this does not prove that he stole anything.
Plaintiff contends he spoke with a market employee who informed him it was acceptable for him
to return an expired item by holding it up to the camera, placing it on the counter, and taking a
replacement item. Eggleston Dep. at 130-33. He explained that if he wasn’t hungry at the time he
returned the item he would return the next day or a couple days later and take something.
Getgood Decl. Ex. 1, ECF No. 32-4. He allegedly would record these transaction in a log he kept
in his locker to ensure that everything was accounted for. Eggleston Dep. at 160. He contends
that this is why the video evidence shows him taking items without paying for them. 157–182.
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He also contends that the video evidence does not fully capture all relevant events, as it omits
instances of him returning items. Id.
Nevertheless, the relevance of Plaintiff’s explanation is limited. The issue is not whether
Plaintiff is guilty or innocent of stealing from the market. The issue is whether Defendant
reasonably believed he was stealing from market. That is, an employer is entitled to “reasonably
and honestly rel[y] on a particularized set of facts in making an employment decision” even if it
is “later shown to be mistaken, foolish, trivial, or baseless.” Chen v. Dow Chem. Co., 580 F.3d
394, 401 (6th Cir. 2009). Thus, the issue is not whether Plaintiff was stealing from the market,
but whether Mr. Pruitt had sufficient justification to believe that Plaintiff was doing so.
Plaintiff’s justification for his conduct is only relevant to the extent it was explained to Mr. Pruitt
and impacted the basis for his reasonable belief.
Plaintiff has not provided any evidence regarding what explanation, if any, was provided
to Mr. Pruitt during the grievance process. Mr. Pruitt testified that he determined Plaintiff stole
based on the video evidence of Plaintiff taking items without paying for them on numerous
occasions. Pruitt Dep. at 21. Even if it were reasonable to assume that Mr. Pruitt became aware
of Plaintiff’s explanation at some point during the grievance process, this still does not establish
the existence of a jury question on whether Mr. Pruitt’s decision had a basis in fact. Mr. Pruitt
testified that he had personal knowledge of the existence of a return/refund process that other
employees had successfully used. Id. at 23. That refund process did not involve employees
taking it upon themselves to determine whether they were entitled to a refund for an item, nor did
it involve employees taking replacement items at their discretion. Rather, the process involved
the employee filling out a card indicating that they were dissatisfied with a product and waiting
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for the market to issue a refund. Id. Plaintiff’s conduct in the videos clearly does not comport
with this refund process. Thus, Mr. Pruitt’s decision had a basis in fact.
b.
Nevertheless, Plaintiff can establish pretext via the third method set forth in Manzer,
namely that the proffered reasons were insufficient to motivate the adverse decision. Manzer v.
Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994). This showing
“ordinarily consists of evidence that other employees, particularly employees not in the protected
class,” were not subject to an adverse decision “even though they engaged in substantially
identical conduct to that which the employer contends motivated” the adverse decision. Manzer,
29 F.3d at 1084.
It is worth noting at the outset that much of the following discussion involves arguments
advanced by the parties in their discussion of Plaintiff’s prima facie case. However, given the
relatively light burden to establish his prima facie case, and the absence of a requirement that
Plaintiff prove an exact correlation between himself and his comparators, much of the parties’
discussion on this point is more appropriately directed at the pretext analysis. See Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (“The plaintiff need not
demonstrate an exact correlation with the employee receiving more favorable treatment in order
for the two to be considered “similarly-situated”); Martin v. Toledo Cardiology Consultants,
Inc., 548 F.3d 405, 412 (6th Cir. 2008) (“The district court’s framing of the similarly-situated
standard is too narrow and necessitates an exact correlation not required by the law of this
circuit. The prima facie showing is not intended to be onerous.”).
Notably, in Hollins, the plaintiff met her prima facie case by establishing that white
women who engaged in the same conduct as the plaintiff, namely violation of the employer’s
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grooming policy, were not subject to the adverse decision. Hollins v. Atl. Co., 188 F.3d 652, 660
(6th Cir. 1999). The employer then relied on that very grooming policy as its legitimate, nondiscriminatory reason for the adverse decision. Id. The plaintiff then argued that the proffered
reason was pretextual in that it was insufficient to motivate the discharge. Id. The plaintiff relied
on the same evidence of disparate treatment, arguing that she was singled out for violating the
grooming policy, whereas her white counterparts were not. The court found that the plaintiff had
“raised a question of fact regarding whether [the employer’s] grooming policy – which [plaintiff]
claims was not applied to the white women - was a pretext for the employer’s treatment of
Hollins.” Id.
Similarly, Eggleston identified disparate treatment as evidence establishing his prima
facie case of race discrimination. Specifically, he asserted that his white counterparts had also
engaged in theft, but that they were later reinstated with a last chance agreement. Defendant
identified that same theft as its legitimate, non-discriminatory reason for the decision. At the
pretext stage, Plaintiff asserted that he was treated less preferentially than Mr. Ledger for
engaging in theft.
Defendant attempts to explain the reason for the disparate treatment. Defendant argues
that Eggleston’s conduct was “vastly dissimilar to Smith’s and Leger’s. Leger took fountain pop
from the Market Place while he was working there, and Smith took supplies for a company
function . . . By Contrast, on nine separate occasions over a period of four days, Eggleston took
eleven items from the Market Place without paying for them.” Mot. at 13. Defendant further
notes that “after Smith and Leger filed grievances contesting their terminations, Pruitt
investigated further and concluded that neither Smith nor Leger had actually stolen any items.
Nexteer therefore returned them to work.” Id. Indeed, Defendant produced a flash drive
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containing video footage of Plaintiff taking items without paying for them. Eggleston Dep. Ex.
12.
As discussed above, there does not appear to be any material difference between the
value of the items stolen by Plaintiff and Mr. Ledger.9 At best there is an unresolved question
regarding how many fountain pops Mr. Ledger stole. Indeed, it is entirely possible that the value
of the items he took exceeded the value of the items Plaintiff took. More importantly, the value
of the items stolen was not a basis for Mr. Pruitt’s decision not to reinstate Plaintiff. Indeed,
when asked “do you have any understanding or knowledge of the value of the food Mr.
Eggleston’s alleged to have stolen?” Mr. Pruitt responded “no.” Pruitt Dep. at 20. An employer
cannot make post-hoc rationalizations for an adverse employment decisions by identifying
factors that were never considered by the decision maker in the first instance. See Cutcher v.
Kmart Corp., 364 F. App'x 183, 189 (6th Cir. 2010); Weeks v. Michigan, Dep't of Cmty. Health,
587 F. App'x 850, 857 (6th Cir. 2014). Thus, Defendant cannot rely on the “seriousness” of the
alleged offenses to explain the disparate treatment when Mr. Pruitt never considered that factor.
In fact, Mr. Pruitt was very clear that the reason for treating the gentleman differently had
nothing to do with the seriousness of the alleged offenses. Rather, the difference in treatment was
a result of his determination as to whether an offense occurred at all. He testified that he
determined Plaintiff “stole” and Mr. Ledger “didn’t actually steal.” Pruitt Dep. at 21–22. Mr.
Pruitt was questioned about how he made this determination. His responses yield virtually no
helpful information, and certainly would not preclude a jury from finding that his proffered
reason was pretextual:
9
Additionally, Mr. Pruitt testified that Mr. Ledger had also been fired on another occasion, though the
circumstances of that were unclear. Pruitt Dep. at 22. Mr. Ledger was apparently reinstated on that occasion as well.
The fact that he had previously been fired further calls into question why he was given more preferential treatment
than Plaintiff.
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Q: How did you discover that they didn’t actually engage in theft?
A: Based on my conversations with the Union, with the actual cafeteria service, whatnot.
Q: Did you –
A: I think one was a supervisor of Dave Smith, also.
Q: Do you know how it came to be that they were, I guess, incorrectly accused of
engaging in theft?
A: Yeah, they were in there working, in the cafeteria, and they was doing some work in
there, I don’t know what the work exactly was, and so the supervisor for Dave Smith
asked him to bring some plates up for some kind of celebration. I don’t know what it was;
I don't know if it was a holiday or whatever. And so he took the plates out of there based
on the request that he got from his boss. Ledger was in there getting some fountain – he
discovered he gets fountain pop whenever he’s in there working, so that’s why.
Q: Who said that he gets fountain pop whenever he’s in there working?
A: The cafeteria did.
Pruitt Dep. at 30–31. It is unclear what Mr. Pruitt meant when he said it was discovered that Mr.
Ledger “gets fountain pop whenever he’s in there working, so that’s why.” Id. Perhaps Mr. Pruitt
meant he discovered that Mr. Ledger is in fact entitled to a complimentary pop whenever he
works the cafeteria, and therefore no theft had taken place. This discovery could have been made
during Mr. Pruitt’s conversations with “the cafeteria service” and “whatnot.” Id. On the other
hand Mr. Pruitt might have meant something else. Perhaps Mr. Pruitt meant that upon
discovering Mr. Ledger was only stealing fountain pop, Mr. Pruitt determined that Mr. Ledger’s
theft was too insignificant to warrant termination. It is unclear which interpretation is correct.
Furthermore, if the former is the correct interpretation, it would be reasonable for Mr. Ledger to
- 21 -
have been cleared of all wrongdoing and immediately reinstated. However, his return had to be
negotiated with the union pursuant to a “Last Chance Agreement.” Mr. Pruitt was questioned
about this, and he was less than informative:
A: Well, at the end of my investigation looking into those cases, they
didn’t actually steal.
Q: Okay. So why were they given a Last Chance Agreement, why weren’t
they just returned to work?
A: That was the agreement I made with the Union. Ledger had been fired
before, and Dave Smith had been fired before.
...
Q: Do you know if the Last Chance Agreements for Mr. Ledger and Mr.
Smith specifically state that they did not steal?
A: I don’t recall exactly what the wording is on that document.
Q: Okay. And I believe I asked you earlier, you know, if they had not
actually committed theft, why they were given discipline, and I believe
you said that was what you negotiated with the union, or words to that
effect. I don’t know if I have the exact quote.
MR. BARDELLI: I’d just object; it was asked and answered. You
could refer back to his answer, prior answer.
(BY MR. KELLY): What I wanted to clarify is why did you
negotiate with the Union for a Last Chance Agreement if the two
individuals didn’t engage in theft?
MR. BARDELLI: Object to the form of the question. I think –
we’ll have to go back and look at his testimony, whether or not it
mischaracterizes it. So I’ll object to the foundation too, but go
ahead and answer if you can.10
THE WITNESS: That’s the settlement we came up with.
...
10
The objection is without merit. The question was proper as rephrased by Mr. Kelly at page 29:7-9. Mr. Kelly did
not mischaracterize the previous testimony. The question was not asked and answered. The previous question was
(after deponent indicated Mr. Ledger and Mr. Smith did not steal) “Okay then why were they given a Last Chance
Agreement, why weren’t they just returned to work?” Id. at 22. The deponent’s response was “that was the
agreement I made with the union.” The new question at 29:7-9 was “why did you negotiate with the union for a last
chance agreement if the two individuals didn’t engage in theft?.”
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Q: So did you offer, or did you demand that they sign a Last Chance
Agreement in exchange for them getting returned to work?
A: That was the agreement that was made, that they sign Last Chance
Agreements.
Q: Okay. What brought that up?
A: That’s what we negotiated. That’s the agreement we came to.
Q: Okay. I want to know the process that led up to that?
A: I don’t know whose idea, or who said Last Chance First, if that’s
what you’re getting at. I can just tell you, that’s what we agreed to.
Id. at 22, 29–30. Mr. Pruitt’s testimony does not explain why an agreement for Mr. Ledger’s
reinstatement had to be negotiated if he was in fact innocent of all wrongdoing. The specific
provisions of the “Last Chance Agreement” are not known by the Court, as the agreement has
not been produced. The general nature of the agreement, however, seems self-explanatory. It
implies that misconduct has occurred, and that no further misconduct will be tolerated by the
employer. In other words, this is Mr. Ledger’s “last chance.” This is inconsistent with Mr.
Pruitt’s testimony that his investigation revealed no theft by Mr. Ledger. Furthermore, Mr. Pruitt
offered no clear explanation for the specific conduct that Mr. Ledger engaged in, namely taking
fountain pop, and how that did not constitute theft.11 A question of fact therefore remains as to
whether Mr. Ledger engaged in substantially identical conduct to Plaintiff but was nonetheless
treated more preferentially. See Manzer, 29 F.3d at 1084. Thus, a reasonable jury could find that
Mr. Pruitt’s proffered reason for denying Plaintiff reinstatement was pretextual. Accordingly,
Defendant’s motion for summary judgment will be denied.
11
In contrast, as explained above, he provided an explanation for Mr. Smith’s conduct. With respect to Mr. Smith,
he explained that he was not stealing the plates but was taking them for use at a company function, and did so at the
direction of a supervisor. Pruitt Dep. at 31.
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IV.
A.
The Michigan Elliott-Larsen Civil Rights Act prohibits retaliation or discrimination
against an individual because that person has opposed a violation of the act. MCL § 37.2701(a).
To establish a prima facie case of ELCRA retaliation, a plaintiff must show that: (1) he engaged
in protected activity; (2) the protected activity was known to the defendant; 3) the defendant took
adverse employment action against the plaintiff; and 4) that there was a causal connection
between the protected activity and the adverse employment action. Barrett v. Kirtland Cmty.
Coll., 245 Mich. App. 306, 315 (2001); Garg v. Macomb Cty. Cmty. Mental Health Servs., 696
N.W.2d 646, 653 (Mich. 2005). “To establish causation, the plaintiff must show that his
participation in activity protected by the CRA was a ‘significant factor’ in the employer’s
adverse employment action, not just that there was a causal link between the two. Barrett, 245
Mich. App. at 315 (2001) (quoting Jacklyn v. Schering–Plough Healthcare Products Sales
Corp., 176 F.3d 921, 929 (C.A.6, 1999).
B.
Plaintiff has never been clear on what “violation of the act” he contends he opposed.
Paragraph 111 of his complaint simply states that “Plaintiff engaged in activity protected by the
Act by opposing a violation of the Act.” ECF No. 1. In his deposition, Plaintiff stated that he is
referring to “helping employees with either their grievances and/or appeals.” ECF No. 191.
Defendant argues that Plaintiff has not explained how helping employees file grievances
involved opposing a violation of the act. Mot. at 7. Indeed, Plaintiff provides limited information
regarding these grievances. He stated that he began helping African-American employees file
grievances because he noticed a pattern that the Union was not giving them sufficient
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representation. Eggleston Dep. at 21-22. This speaks only to Plaintiff’s motivation for helping
employees file grievances, as well as the Union’s alleged conduct in failing to represent AfricanAmericans. This provides no information regarding the underlying grievances themselves, and
what alleged violation of the ELCRA Nexteer was engaged in that Plaintiff helped employees
oppose.
The Williamson appeal is the only instance Plaintiff provides any specific information
about. Plaintiff produced a copy of the Williamson appeal, which states “I am filing this appeal
due to an unfair, unjust, excessive wrongful discharge by management.” ECF No. 35-4. Plaintiff
contends the appeal opposed racial discrimination, but does not support this assertion. Resp. at
17. Even assuming Plaintiff was engaged in protected activity by helping Williamson file this
appeal, Plaintiff still does not establish a prima facie case. Mr. Pruitt did indeed testify that he
knew about the Williamson appeal. Pruitt Dep. at 7. However, Plaintiff furnishes no evidence of
causal connection between that appeal and the adverse decision. Temporal proximity does not
establish that connection where the appeal was filed in November of 2010, and the adverse
decision occurred approximately five years later. Miller v. CVS Pharmacy, Inc., 779 F. Supp. 2d
683, 695 (E.D. Mich. 2011) (“the passage of eighteen months or more between her most recent
complaints of mistreatment or discrimination and her discharge tends to undermine, rather than
support, any notion that there was a causal connection between the two.”).
In his response, Plaintiff explains: “Plaintiff engaged in protected activity over the course
of several years. Plaintiff did oppose racial discrimination early in his career, including through
assisting with Mr. Williamson’s appeal. However, two more relevant activities exist for the
summary judgment stage.” Resp. at 17. Plaintiff breezes past his theory that helping others file
grievances was the conduct giving rise to his ELCRA retaliation claim. He then directs the
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Court’s attention to two additional facts that he contends support his retaliation claim. “First,
Plaintiff complained directly to Mr. Getgood that he was going to file a complaint of racial
discrimination against him.” ECF No. 18 (citing Eggleston Dep. at 105-06). Plaintiff offers no
explanation for how informing someone of an intention to file a race discrimination complaint,
as opposed to the filing of a complaint, constitutes protected activity. With absolutely no other
information provided about this alleged statement he made to Mr. Getgood, it is simply not
possible to ascertain what Plaintiff is even arguing, much less determine whether he has met a
prima facie case of ELCRA retaliation.
Next, Plaintiff notes that on October 14, 2015, he filed a Charge of Discrimination with
the Michigan Department of Civil Rights and Equal Employment Opportunity Commission.
Resp. at 18. Plaintiff contends that “there is a gap of approximately three months between
Plaintiff’s filing of the Charge of Discrimination and the records documenting Mr. Pruitt’s
decision not to return Plaintiff back to work.” Id. Plaintiff asserts that the evidence of close
temporal proximity supports a finding of causation. He further asserts that disparate treatment of
himself and Mr. Ledger and Mr. Smith (who did not file discrimination charges) supports a
finding of causation. However, Plaintiff’s argument skips from addressing the protected activity
to addressing causation, and omits an important step. Mr. Pruitt must have been aware of the
discrimination charges filed with the Michigan Department of Civil Rights and the EEOC when
he made the adverse decision. Plaintiff does not even attempt to identify any evidence in the
record that Mr. Pruitt had such knowledge at the time he made his decision. Nor does Plaintiff
attempt to identify evidence in the record establishing when Mr. Pruitt’s decision was made. It
appears the decision was made some time close to the step 5 grievance meeting, if not at the
meeting itself. This was the meeting attended by Mr. Getgood, Mr. Pruitt, various other
- 26 -
management officials, and the union Bargaining Chair, Bob Glaser. Eggleston Dep. at 140; Step
5 Grievance Meeting, ECF No. 35-19. The meeting minutes read as follows:
9353 – Eric Eggleston – Union Discharge SR. 2 stealing from the market. Other
EEs were returned that had stolen from the market. Need the zip drive with the
video. Mngt. Disp = Dereon states the other two who were brought back for
stealing were the last two
to return for theft. This EE stole hundreds of
dollars’ worth of food.
The meeting took place on January 16, 2016, roughly three months after Plaintiff filed
discrimination charges with the Michigan Department of Civil Rights and the EEOC. Even
assuming the decision not to bring Plaintiff back was made at this meeting, Plaintiff has not
established that Mr. Pruitt knew of the discrimination charges at that time. Mr. Pruitt was asked
if he “reviewed any materials Nexteer submitted to the Michigan Department of Civil Rights.”
And he responded “the only material that I may have submitted was something that was asked
directly to me.” Pruitt Dep. at 28. He was also asked “do you have any responsibility in
providing answers back to the Michigan Department of Civil Rights as it relates to their
investigation of complaints Mr. Eggleston filed?” and he responded “the legal department
handles those.” Id. at 26. He was asked “if Nexteeer provided an explanation to the Michigan
Department of Civil Rights as to why Mr. Ledger and Mr. Smith received Last Chance
Agreements was different or the same as your explanation today.” He replied “I would have to
see the paperwork that you’re referring to.” Id. at 28. This testimony does not establish that Mr.
Pruitt knew about the discrimination charges when he made his decision not to give Plaintiff a
last chance agreement. Accordingly, Plaintiff has not met his prima facie case, and summary
judgment will be granted for Defendant on the ELCRA retaliation claim.
- 27 -
V.
A.
The Family and Medical Leave Act (FMLA) makes it unlawful for an employer to
“interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided
under this subchapter,” or to retaliate or discriminate against an employee for doing so. 29
U.S.C.A. § 2615(a)(1)-(2). “Absent direct evidence of unlawful conduct, FMLA-retaliation
claims are evaluated according to the tripartite burden-shifting framework announced
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Bryson v. Regis Corp., 498 F.3d
561, 570 (6th Cir. 2007). This framework was set forth above at section III.A.
B.
Eggleston requested FMLA leave in March of 2014, over 18 months prior to his
termination and the decision not to reinstate him. Eggleston Dep. at 83. Defendant correctly
notes that “[T]he more time that elapses between the protected activity and the adverse
employment action, the more the plaintiff must supplement his claim with other evidence of
retaliatory conduct to establish causality.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392,
400 (6th Cir. 2010). Defendant also correctly notes that the Supreme Court has observed
“[a]ction taken . . . 20 months later suggests, by itself, no causality at all.” Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 274 (2001). In support of the FMLA claim, Plaintiff’s response brief
offers one page of legal standards and three sentences of perfunctory analysis. He reasserts the
argument above that disparate treatment “is relevant to causation.” Resp. at 20 (citing Flones v.
Beaumont Health Sys., 567 F. App'x 399, 408 (6th Cir. 2014)). First, Flones did not involve a
claim for FMLA retaliation. Secondly, relevancy and sufficiency are not equivalent. Disparate
treatment alone is not sufficient to establish his prima facie case, particularly when there is no
- 28 -
evidence that the disparate treatment at issue had anything to do with FMLA leave requests, as
opposed to racial considerations and alleged theft. Second, Plaintiff argues that retaliation is a
cognizable FMLA claim. The fact that retaliation is a cognizable claim does nothing to establish
Plaintiff’s prima facie case. Accordingly, summary judgment will be granted for Defendant on
the FMLA retaliation claim.
VI.
Accordingly, it is ORDERED that Defendant’s motion for summary judgment, ECF No.
32, is GRANTED in part, and DENIED in part, as follows:
DENIED as to Counts I and III of Plaintiff’s complaint (ECF No. 1)
GRANTED as to Counts II and IV of Plaintiff’s complaint (ECF No. 1).
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 4, 2018
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 4, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager
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