Teenier v. Charter Communications, LLC
OPINION AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT 14 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-13226
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
CHARTER COMMUNICATIONS, LLC,
UNITED STATES MAGISTRATE JUDGE
PATRICIA T. MORRIS
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
On September 7, 2016, Terry Teenier (“Plaintiff”) filed a complaint against
Charter Communications, LLC (“Defendant”). Dkt. No. 1. Plaintiff’s complaint
alleges that Defendant violated the Family and Medical Leave Act (FMLA) by
retaliating against Plaintiff for exercising FMLA rights. 29 C.F.R. § 825.220(c). Id.
Presently before the Court is Defendant’s Motion for Summary Judgment,
filed on June 15, 2017. Dkt. No. 14. Plaintiff filed a response on July 6, 2017, Dkt.
No. 16, and Defendant replied on July 20, 2017, Dkt. No. 17. Upon review of the
briefing, the Court concludes that oral argument will not aid in the resolution of the
instant motion. Accordingly, the Court will resolve Defendant’s present motion on
the briefs. See E.D. Mich. LR 7.1(f)(2).
For the reasons discussed herein, the Court GRANTS Defendant’s Motion
for Summary Judgment .
Plaintiff began working for a subcontractor of Defendant in the late 1990s,
Dkt. No. 16-2, p. 3 (Pg. ID 505), but quit voluntarily in October 2000, Dkt. No. 1412, p. 18 (Pg. ID 453). Plaintiff returned to Defendant’s employment in 2005 and
was eventually promoted to a position as the Manager of Field Audit and Technical
Quality Assuarance, supervising approximately 56 people. Dkt. No. 16-3; Dkt. No.
16-2, p. 10 (Pg. ID 512).
Around May or June 2014, there was an effort by some of Defendant’s
employees to unionize with The International Brotherhood of Electrical Workers.
See Dkt. No. 14-8, p. 4 (Pg. ID 388). Defendant’s management sought to prevent
unionization, see Dkt. No. 16-10, and managers took part in a series of phone
conferences on union avoidance. See Dkt. No. 16-11 (providing calendar
invitations for phone conferences from July 14, 2014 to August 11, 2014).1
Plaintiff asserts in his deposition that these calls continued until the
termination of his employment in October 2014, but his own exhibits do not
contain evidentiary support for that allegation. Compare Dkt. No. 16-2, p. 19 (Pg.
ID 521) (stating that, “[t]he calls continued up until [his] termination,” but also
admitting that he does not remember when the last call occurred) with Dkt. No. 1611 (providing August 11, 2014 as the last phone conference).
Plaintiff alleges that he was told by a superior to isolate four employees
under his supervision because of their suspected union involvement. Dkt. No. 16-2,
p. 22 (Pg. ID 524). These four employees—James DeBeau, Jonathan French, Kent
Payne, and Raymond Schoof—were all audit technicians who reported to Shawn
Felker, a supervisor under Plaintiff. Id. at 22–25 (Pg. ID 524–27). Plaintiff
complied with the request to isolate these employees by reassigning them to more
remote locations for two to three weeks. Id. Plaintiff also reassigned DeBeau,
French, and Schoof from Felker’s supervision to another supervisor, Rob Lothian,
in the beginning of September. Id. at 26; Dkt. No. 14-9, p. 13 (Pg. ID 403).
On Friday, September 19, 2014, Lothian approached Defendant’s Human
Resources Generalist Stephanie Peters with concerns about Plaintiff. Dkt. No. 149, pp. 12–15 (Pg. ID 402–05). Lothian expressed concern about the employees
who had been transferred from Felker’s team to his team because he had heard that
these audit technicians performed below their productivity targets, which would
reflect poorly on him. Id. at 13–14. Lothian was particularly concerned that these
employees were less productive because of their friendship with Plaintiff, who
Lothian believed pulled employees away to perform “special projects” of nonwork-related activities on company time. Id. at 14. Lothian provided an example of
the men laying sod at Schoof’s home during work hours, photographs of which he
said he saw on Felker’s cell phone. Id. Peters told Lothian to “continue to be
observant and report directly to” her, as she would “involve the appropriate
individuals.” Dkt. No. 14-9, p. 15 (Pg. ID 405).
On Sunday, September 21, 2014, Plaintiff’s father became ill and was
admitted to the hospital. Dkt. No. 14-12, p. 10 (Pg. ID 445). Plaintiff took the
following week off work and his father passed away on Friday, September 26,
2014. Id. Plaintiff’s supervisor, Greg Culver, approved his leave, telling him to “do
what you need to do, you have plenty of vacation and sick time.” Dkt. No. 14-12,
p. 10 (Pg. ID 445).
While Plaintiff was on leave, Lothian updated Peters on September 24, 2016
and September 26, 2014 regarding the special projects issue he first mentioned on
September 19, 2014. Dkt. No. 14-9, p. 15 (Pg. ID 405). Lothian reported that
DeBeau stated he was approved to work on a special project: work on a haunted
house owned by one of Defendant’s preferred vendors, Pat Jozeska of Complete
Auto. Id. Lothian told Peters that DeBeau allegedly said Plaintiff was taking care
of his numbers so the time spent on this non-work activity would not hurt his
performance. Id. Lothian said he contacted Plaintiff and Plaintiff told him that “this
is the last one [of the special projects]—I promise.” Id. at 16. Lothian also said that
Felker was also frustrated with the special projects, but did not want TJ to lose his
job. Id. Lothian was not sure that Felker would be honest in the investigation, and
that Schoof and DeBeau were close friends with TJ outside work. Id.
Shortly after Peters’s conversation with Lothian on Friday, September 26,
2014, Culver called Peters to relay a call he had just received from Plaintiff. Id.
Culver told Peters that Plaintiff had talked about Lothian being paranoid and that
he planned to speak with him when he returned. Id. Peters told Culver about what
Lothian had reported to her, and the two agreed to meet the following Monday to
discuss their concerns. Id.
When Plaintiff returned to work that morning, he could not get ahold of
Lothian. Dkt. No. 16-2, p. 30 (Pg. ID 532). When Plaintiff found Lothian later, he
thought Lothian was acting abnormally and avoiding eye contact. Id. Someone in
the dispatch office alerted Plaintiff that Culver was in the office that day, and
Plaintiff went to look for him. Id. at 31–32. Plaintiff questioned Culver about why
he was present in the office without notifying Plaintiff and asked him who was
being investigated. Id. at 33–34. Since Culver would not disclose who was being
investigated, Plaintiff concluded that he was the target of the investigation. Id. at
Plaintiff emailed Culver an apology later in the day and notified him that he
would be taking additional time off for bereavement leave. Id. at 35. Plaintiff took
from September 29, 2014 to October 3, 2014 off as bereavement leave. Dkt. No.
14-12, p. 16 (Pg. ID 451). When approving Plaintiff’s bereavement leave, Culver
told Plaintiff to take care of his father and wished him well. Dkt. No. 14-12, p. 11
(Pg. ID 446). By Plaintiff’s admission, Culver did not say anything that suggested
Plaintiff would not be allowed to take leave. Id. at 10–11.
Between Monday, September 29, 2014 and Wednesday, October 8, 2014,
Peters met with ten employees, including Plaintiff, to investigate the allegations
made by Lothian. Dkt. No. 14-9, pp. 16–29 (Pg. ID 406–19). Felker denied
knowing of any non-work-related projects being completed on company time, but
acknowledged that DeBeau had gone to the haunted house while his company
vehicle was being repaired at Complete Auto. Dkt. No. 14-9, pp. 16–17 (Pg. ID
406–07). Schoof also denied that any employees were performing non-work tasks
while on the clock, and stated that the sod had been installed at his house in the
evening after work. Id. at 18–19. DeBeau stated that he had performed a sweep of
an apartment complex and spent a day verifying addresses, which he considered to
be “special projects.” Id. at 19–20. He also had visited the haunted house to look at
plumbing while his company truck was being repaired. Id. French stated that he
had previously picked up boxes near a college campus, which he considered a
“special project,” and that Lothian had told French about rumors of employees
laying sod on company time. Id. at 20–21. Kent Payne and Aaron Rhodes were
also unaware of any non-work-related activities being performed on company time.
Id. at 22–24.
Peters interviewed Plaintiff on Monday, October 6, 2014. Dky. No. 14-9, pp.
24–26 (Pg. ID 414–16). He stated the only special projects he has assigned his
employees were having employees pick up boxes, or having some employees help
others who were not trained in specific areas. Id. He also told Peters that he had
been alerted by other employees that he was currently under investigation. Id.
The only employee whose account cooroborated Lothian’s allegations was
Lucas Watkins, who admitted most of his information was second-hand. Id. at 27.
Watkins stated that Plaintiff covered up numbers to account for employees doing
non-work activities on company time and that “you don’t mess with [Plaintiff],
especially if you aren’t part of the inner circle” of friends Plaintiff had hired. Id.
Peters concluded the investigation on October 8, 2014. Id. at 29–30. She
concluded that where discrepancies existed between Plaintiff’s and Lothian’s
description of events, Lothian’s account was more credible. See Dkt. No. 14-9, p. 8
(Pg. ID 398). Peters thought that Lothian “was always very honest, even if he
thought he was going to be in trouble” and that Lothian “had no reason not to be
honest.” Id. Peters further concluded that Plaintiff had violated Defendant’s Code
of Conduct, Timekeeping Policy, and the Performance Standards in the Charter
Employee Handbook. Dkt. No. 14-9, pp. 29–30 (Pg. ID 419–20).
Peters recommended to her supervisors, Sherry Farquhar and Harth
Goulette, and Plaintiff’s supervisor, Culver, that Plaintiff, Debeau, Felker, French,
and Schoof should all be terminated. Dkt. No. 14-9, pp. 9–10 (Pg. ID 399–400).
Termination was agreed upon. See Dkt. No. 14-4, p. 6 (Pg. ID 360); Dkt. No. 14-9,
pp. 9–10 (Pg. ID 399–400). Culver terminated Plaintiff and the four other
employees on Wednesday, October 14, 2014. Dkt. No. 14-2, pp. 99–107 (Pg. ID
Plaintiff, Debeau, Felker, French, and Schoof filed Unfair Labor Practices
charges against Defendant with the National Labor Relations Board after their
terminations. Dkt. No. 14-5, p. 6 (Pg. ID 366) (DeBeau); Dkt. No. 14-7, p. 7 (Pg.
ID 380) (Felker); Dkt. No. 14-8, p. 6 (Pg. ID 390) (French); Dkt. No. 14-10, p. 8
(Pg. ID 428) (Schoof); Dkt. No. 14-12, p. 30 (Pg. ID 465) (Plaintiff). Plaintiff filed
his ULP charge on January 14, 2015, alleging that Defendant fired him because he
“recently refused to unfairly treat several employees who were involved with
attempts to unionize Charter technicians.” Dkt. No. 14-12, p. 30 (Pg. ID 465)
Plaintiff withdrew his charge after he learned it could be dismissed for lack of
jurisdiction because he was a mangerial employee. Dkt. No. 14-12, p. 17 (Pg. ID
452). He filed this case on September 7, 2016. Dkt. No. 1.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56 “directs that summary judgment shall be
granted if ‘there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’ ” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). The court must view the facts,
and draw reasonable inferences from those facts, in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No
genuine dispute of material fact exists where the record “taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the court
evaluates “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.” Anderson, 477 U.S. at 251–52.
As an initial note, the Court clarifies that its inquiry is limited to whether
Defendant terminated Plaintiff in retaliation for utilizing his rights under the
FMLA. The Court makes no finding as to whether Defendant terminated Plaintiff
because of the union activity of men he supervised, as such activity lies outside the
protections of the FMLA.
Defendant argues that it is entitled to summary judgment on Plaintiff’s only
claim, alleging FMLA retaliation. Dkt. No. 14, p. 18 (Pg. ID 216). First, Defendant
argues that Plaintiff cannot make out a prima facie case of retaliation where he has
no evidence that his leave had any impact on Defendant’s decision to terminate
him. Id. Second, Defendant asserts that Plaintiff has no evidence to suggest that it
did not reasonably believe that Plaintiff violated Defendant’s policy and then lied
about it. The Court finds that Defendant is entitled to summary judgment. A
detailed analysis is below.
1. Plaintiff’s FMLA Claim
The FMLA provides an eligible employee up to twelve weeks of leave
within a twelve-month period “[i]n order to care for the spouse, or a son, daughter,
or parent, of the employee, if such spouse, son, daughter, or parent has a serious
health condition.” 29 U.S.C. § 2612(a)(1)(C). This leave must be used to actually
care for an immediate family member whose health condition is sufficiently
serious to warrant FMLA protection. Katoula v. Detroit Entm’t, LLC, 557 F. App’x
496, 498 (6th Cir. 2014); Morris v. Family Dollar Stores of Ohio, Inc., 320 F.
App’x 330, 337 (6th Cir. 2009).
The Sixth Circuit recognizes two distinct theories for FMLA recovery:
(1) the “entitlement” or “interference” theory, under 29 U.S.C. § 2615(a)(1); and
(2) the “retaliation” or “discrimination” theory, under 29 U.S.C. § 2615(a)(2).
Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). In the present
case, Plaintiff only asserts a retaliation claim.
a. Plaintiff’s FMLA Retaliation Claim
The FMLA prohibits employers from discharging or discriminating against
any individual for opposing practices made unlawful by the FMLA. 29 U.S.C.
§ 2615(a)(2). The Sixth Circuit applies the McDonnell Douglas burden-shifting
framework to retaliation claims that turn on circumstantial evidence. Daugherty v.
Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008); see McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case of FMLA retaliation, an employee must
(1) the employee was engaged in an activity protected by the FMLA;
(2) the employer knew that the employee was exercising his or her
rights under the FMLA;
(3) after learning of the employee’s exercise of FMLA rights, the
employer took an employment action adverse to him or her; and
(4) there was a causal connection between the protected FMLA
activity and the adverse employment action.
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012). “A plaintiff’s burden in
establishing a prima facie case is not intended to be an onerous one.” Skrjanc v.
Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). A successfully
pleaded prima facie case of retaliation results in the burden being shifted onto the
employer to present a legitimate, non-discriminatory reason for its decision.
Donald, 667 F.3d at 761. If the employer adequately carries this burden, then the
employee must show that the employer’s stated reasons are mere pretext for
unlawful discrimination in order to survive summary judgment. Id. at 761–62.
i. Whether Plaintiff Engaged In An Activity Protected By The
Based on the arguments presented at the summary judgment stage, it does
not appear that there is a dispute that Plaintiff’s leave from September 22, 2014 to
September 26, 2014 to care for his father’s illness was an FMLA-qualifying
activity.2 Viewing the evidence in the light most favorable to the non-moving
party, the Court finds that Plaintiff’s leave to care for his ill father was an activity
protected by the FMLA.
ii. Whether Defendant Knew Plaintiff Was Exercising His FMLA
Defendant makes some arguments in its Motion for Summary Judgment that
seem to nebulously assert it did not realize Plaintiff’s leave to care for his father
was a FMLA activity because he took paid leave. Dkt. No. 14, p. 25 (Pg. ID 223).
Although Defendant did not flesh out this argument fully, the Court will weigh the
evidence presented on this issue for the sake of clarity.
Defendant never provided Plaintiff with FMLA documents to complete upon
his taking of this leave from September 22nd to September 26th. Dkt. No. 16-2, p.
There is also no dispute that the following week of leave that Plaintiff took
from the afternoon of September 29, 2014 to October 3, 2014, did not qualify as
FMLA leave because Plaintiff’s father had already passed away on September 26,
2014. Plaintiff took this leave as bereavement and vacation leave. Dkt. No. 14-2, p.
112 (Pg. ID 345).
29 (Pg. ID 531). Thus, Defendant did not label this week as official FMLA leave.
Instead, Plaintiff took paid sick leave for this week. Dkt. No. 14-2, p. 5 (Pg. ID
238); Dkt. No. 14-2, p. 112 (Pg. ID 345).
“[T]o invoke the protection of the FMLA, an employee must provide notice
and a qualifying reason for requesting the leave.” Wallace v. FedEx Corp., 764
F.3d 571, 586 (6th Cir. 2014) (alteration in original) (quoting Brohm v. JH Props.,
Inc., 149 F.3d 517, 523 (6th Cir. 1998)). “When an employee seeks leave for the
first time for a FMLA-qualifying reason, the employee need not expressly assert
rights under the FMLA or even mention the FMLA.” 29 C.F.R. § 825.303(b).
Instead, the FMLA requires only that the employee “provide sufficient information
for an employer to reasonably determine whether the FMLA may apply to the
leave request.” Id. “The employee’s burden is not heavy.” Wallace, 764 F.3d at
586. Rather, the employer bears the burden of obtaining any additional required
information that may be needed to establish eligibility. 29 C.F.R. § 825.303(b).
Viewing the evidence in the light most favorable to the non-moving party,
Plaintiff gave Defendant sufficient information to shift the burden to Defendant to
provide him with FMLA documents or obtain additional information. Accordingly,
the Court finds Plaintiff adequately established that Defendant knew or should
have known that he was taking FMLA-qualifying leave from September 22, 2014
iii. Whether There Was A Causal Connection Between Plaintiff’s
FMLA Activity And The Adverse Employment Action
This final factor requires Plaintiff to provide sufficient evidence that a
reasonable jury could find a causal connection between Plaintiff’s FMLA activity
and the adverse action taken by Defendants. Donald, 667 F.3d at 761.
In the Sixth Circuit, “proximity in time between the protected activity and
the adverse employment action may constitute evidence of a causal connection.”
Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007). The relevant timeframe
for the Court’s consideration is the “ ‘time after an employer learns of a protected
activity,’ not the time after the plaintiff’s FMLA leave expires.”3 Bush v. Compass
Grp. USA, Inc., No. 16-6258, 2017 WL 1097140, at *10 (6th Cir. Mar. 23, 2017).
“Specifically, the more time that elapses between the protected activity and the
adverse employment action, the more the plaintiff must supplement his claim with
As happens periodically in the Sixth Circuit, there is conflicting precedent on
this issue. Compare Bush v. Compass Grp. USA, Inc., 683 F. App’x 440, 452 (6th
Cir. 2017) (“However, contrary to Bush’s implicit assumption, the relevant
timeframe for us to consider in determining whether there was a causal connection
between the plaintiff’s FMLA leave and the adverse employment action is the
‘time after an employer learns of a protected activity,’ not the time after the
plaintiff’s FMLA leave expires.”) with Judge v. Landscape Forms, Inc., 592 F.
App’x 403, 410 (6th Cir. 2014) (“However, we have measured temporal proximity
from the date FMLA leave expired, not just when the employee first requested it,
for the purposes of measuring temporal proximity.”). Since neither case is
published, overruled, or explicitly distinguished from the other, the Court will err
on the side of caution by adopting the standard stated in the more recent decision
(Bush), which cited to published, rather than unpublished, precedent.
‘other evidence of retaliatory conduct to establish causality.’ ” Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010) (quoting Mickey v. Zeidler
Tool & Die Co., 516 F.3d 516, 524–25 (6th Cir. 2008)).
Plaintiff argues that causal connection is demonstrated by the proximity of
his termination to his FMLA-qualifying leave and because Defendant did not
adequately comply with FMLA notice obligations.4 Dkt. No. 1, p. 14 (Pg. ID 14).
Plaintiff notified Defendant of his intent to take FMLA-qualifying leave on
Sunday, September 21, 2014. Dkt. No. 14-12, p. 10 (Pg. ID 445). Defendant
terminated Plaintiff 23 days later on Wednesday, October 14, 2014. Dkt. No. 14-2,
pp. 99–107 (Pg. ID 332–40).
For the purposes of this motion, the Court will assume without deciding that
the few short weeks between Plaintiff’s request for FMLA-qualifying leave and his
termination are sufficient to make a prima facie showing of a causal connection.5
Plaintiff cites to Scorsone v. Wal-Mart Stores, Inc., Case No. 13-cv-14418,
2014 2207002 (E.D. Mich. May 28, 2014) in support of its second point. The
Scorsone order addresses a motion to dismiss, which utilizes a different standard
than a summary judgment motion. This unpublished district court case is
inapplicable to the present proceedings.
As Bush addressed in a footnote, there is a perplexing and unresolved split in
circuit precedent as to whether “temporal proximity evidence is sufficient to both
establish a prima facie showing of FMLA retaliation, and rebut an employer’s
proffered non-discriminatory reasons for the adverse employment action, or it is
insufficient to do either.” 683 F. App’x at 451 n.5 (6th Cir. 2017). Unfortunately,
despite addressing the fact that this conflict exists, Bush did not provide any
guidance as to how it should be resolved. See id.
See Johnson v. Fifth Third Bank, No. 16-1111, 2017 WL 1244879, at *5 (6th Cir.
Apr. 5, 2017) (finding that a two week period between the plaintiff notifying her
employer of FMLA leave and her termination was sufficient to make a prima facie
showing of causal connection). Nevertheless, as address below, this temporal
proximity is insufficient, by itself, to establish pretext.
iv. Whether Defendants Articulated A Legitimate,
Discriminatory Reason For Terminating Plaintiff
If a plaintiff states a prima facie case of FMLA retaliation, the burden shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. See Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).
To meet its burden, Defendant “must clearly set forth, through the introduction of
admissible evidence, reasons for its actions which, if believed by the trier of fact,
would support a finding that unlawful [retaliation] was not the cause of the
employment action.” Id. at 571 (quoting Tex. Dept. of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)).
Here, Defendant presented evidence that prior to Plaintiff’s FMLAqualifying leave, an employee supervised by Plaintiff reported Plaintiff and other
coworkers for completing non-work-related tasks while on company time.
Following several weeks of investigation and nearly two dozen interviews,
Defendant’s Human Resources Department concluded that Lothian’s allegations
were meritorious and that Plaintiff and other employees were being untruthful.
Defendant terminated Plaintiff and four employees he supervised on the same day.
Without citing to any case law, Plaintiff alleges that this reason cannot hold
because there is conflicting evidence as to who made the decision to terminate.
Dkt. No. 16, pp. 30–31 (Pg. ID 496–97). After reviewing the exhibits, it is clear to
the Court that there was no dispute of fact as to whether Plaintiff’s supervisors and
Human Resources employees believed that Plaintiff should be terminated and the
difference in testimony has not created a question of material fact. See Dkt. No. 144, p. 6 (Pg. ID 360); Dkt. No. 14-9, pp. 9–10 (Pg. ID 399–400); see also Anderson,
477 U.S. at 252 (concluding “that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of
Plaintiff also alleges in his response that Peters and Lothian doctored the
investigation as a cover-up after the fact, but has not provided any evidence other
than his conclusory statements as to this suspicion. Dkt. No. 16, pp. 32–33 (Pg. ID
498–99). He has not provided testimony or emails from any individuals with
firsthand knowledge of the investigation timeline to create an issue of material fact
as to the veracity of the investigation dates. See Arendale v. City of Memphis, 519
F.3d 587, 605 (6th Cir. 2008) (“In order to survive summary judgment, Plaintiff
cannot rely on conjecture or conclusory accusations.”).
Thus, the Court finds that Defendant has carried its burden of demonstrating
a legitimate, nondiscriminatory reason for terminating Plaintiff.
v. Whether Defendants’ Reason Was Pretext For Discrimination
A plaintiff may rebut a defendant’s showing of legitimate nondiscriminatory
reason by showing that this reason was mere pretext, designed to mask retaliation.
Singleton v. Select Specialty Hosp.-Lexington, Inc., 391 F. App’x 395, 400 (6th
Cir. 2010). “To demonstrate pretext at the summary judgment stage, the plaintiff
must show by a preponderance of the evidence either (1) that the employer’s
proffered reasons for the adverse employment action had no basis in fact, (2) that
the proffered reasons were not the true reason, or (3) that they were insufficient to
motivate discharge.” Rhoades v. Standard Parking Corp., 559 F. App’x 500, 502
(6th Cir. 2014).
The Sixth Circuit has described rebuttal under the second manner of proving
pretext as when:
[T]he plaintiff attempts to indict the credibility of his employer’s
explanation by showing circumstances which tend to prove that an
illegal motivation was more likely than that offered by the defendant.
In other words, the plaintiff argues that the sheer weight of the
circumstantial evidence of discrimination makes it “more likely than
not” that the employer’s explanation is a pretext, or cover-up.
Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994),
overruled on other grounds by, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009). “[A]s long as an employer has an honest belief in its proffered
nondiscriminatory reason,” an employee cannot establish pretext simply because
the reason is ultimately shown to be incorrect. Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). An employer has an honest
belief in its rationale when it “reasonably relied ‘on the particularized facts that
were before it at the time the decision was made.’ ” Id. (quoting Smith v. Chrysler
Corp., 155 F.3d 799, 807 (6th Cir. 1998)). “An employer’s reason for discharge
does not have to be a good reason . . . to escape liability,” so long as it is “based on
grounds not proscribed by the statute.” Hoffman v. Prof’l Med Team, 394 F.3d 414,
422 (6th Cir. 2005).
To establish the insufficiency of Defendants’ proffered reasons under the
third manner of proving pretext, Plaintiff must show by a preponderance of the
evidence that “other employees, particularly employees not in the protected class,
were not fired even though they were engaged in substantially identical conduct to
that which the employer contends motivated its discharge of [Plaintiff].” Rhoades,
559 F. App’x at 505 (quoting Manzer, 29 F.3d at 1084).
As to the first means of demonstrating pretext, Plaintiff has not shown by a
preponderance of the evidence that Defendant’s proffered reasons for the adverse
employment action had no basis in fact. Defendant relied on the facts provided in
interviews with two employees, Lothian and Watkins, finding these employees to
be more credible at the time than the others interviewed. An employer’s reason for
termination does not need to be correct, so long as there is at least some factual
evidence to support the reason at the time of termination.
Plaintiff has similarly not shown by a preponderance of the evidence that
Defendant’s proffered reasons were not the true reason and that the true reason
related to his FMLA-qualifying leave. Here, the Court was unable to find any
statements in the record that connect Plaintiff’s FMLA leave to his termination.
Plaintiff states his supervisor encouraged him to take the time he needed when his
father was ill and then passed away. Dkt. No. 14-12, pp. 10–11 (Pg. ID 445–46)
(“He typed . . . do what you have to do to take care of your family.” “I know he
replied . . . once again, take care of your father. I hope all is well.”). Plaintiff
similarly admits that no one ever told him that Defendant terminated him for taking
FMLA leave. Dkt. No. 14-12, p. 17 (Pg. ID 452).
Thus, Plaintiff appears to rely entirely on temporal proximity between his
FMLA leave and termination to establish a causal connection. See Dkt. No. 14-12,
p. 11 (Pg. ID 446); Dkt. No. 16-2, p. 36 (Pg. ID 538) (“Q: Okay. Tell me what he
did. A: Well, he terminated me. Shortly after I came back from . . . what should
have been FMLA leave and bereavement, a week later I was terminated. Or
approximately a week later.”). It is true that “suspicious timing is a strong indicator
of pretext when accompanied by some other, independent evidence.” DeBoer v.
Musashi Auto Parts, Inc., 124 F. App’x 387, 393 (6th Cir. 2005). However, the
Sixth Circuit has previously concluded that a one-month difference between
notification of leave and discharge is insufficient on its own to establish evidence
of pretext. Skrjanc, 272 F.3d at 317.
Plaintiff has provided the Court with some evidence that may establish a
question of fact as to whether his termination was attributable to Defendant’s fear
of unionization. While a reasonable jury could possibly conclude that union-related
concerns were the true reason for terminating Plaintiff, Plaintiff has not provided
any evidence—other than temporal proximity—that his termination even tenuously
related to his FMLA-qualifying leave. Without more evidence relating specifically
to his FMLA-qualifying leave, Plaintiff has not demonstrated by a preponderance
of the evidence that Defendant’s decision was pretext for FMLA retaliation.
Finally, Plaintiff has not demonstrated by a preponderance of the evidence
that he was treated any differently than similarly situated employees outside the
protected class. There is no evidence that Defendant treated the four other
employees terminated on the same day as Plaintiff, based on the same allegations,6
French is the only exception. Defendant terminated French for his conduct
during the interviews, rather than any allegations that he performed non-workrelated activities on company time. See Dkt. No. 14-9, p. 30 (Pg. ID 420) (“Jon
any differently than Plaintiff because these employees had not recently taken
Absent additional evidence that the adverse employment action was based
on impermissible FMLA discrimination, such as differential treatment of similarly
situated individuals who did not take FMLA leave, a reasonable jury could not
infer that Defendant discriminated against Plaintiff based on his FMLA leave. See
Turner, 854 F.3d at 929. The Court grants summary judgment to Defendant.
For the reasons stated herein, the Court will GRANT Defendant’s Motion
for Summary Judgment .
Dated: August 28, 2017
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
French was disrespectful and uncooperative when questioned during the
investigation. Jon French intentionally and deliberately communicated dishonest
information, including information intended to damage another employee’s . . .
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