Daidone v. FCA Transport LLC
OPINION and ORDER granting Defendant's 20 MOTION for Summary Judgment. Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Action No. 17-CV-10348
HON. BERNARD A. FRIEDMAN
FCA TRANSPORT LLC,
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on defendant’s motion for summary
judgment [docket entry 20]. Plaintiff has responded, defendant has replied, and plaintiff has filed
a supplemental brief. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion
without a hearing.
This is an employment discrimination action. Plaintiff worked for defendant from
1976 until 2015, most recently as a “shift supervisor for dispatch.” Pl.’s Dep. at 39. Plaintiff alleges
that he was discharged because of his age, in violation of the Age Discrimination in Employment
Act (“ADEA”) and the Elliott-Larsen Civil Rights Act (“ELCRA”); because of his disability, in
violation of the Americans with Disabilities Act (“ADA”) and the Persons With Disabilities Civil
Rights Act (“PWDCRA”); and because he requested a leave of absence for medical reasons, in
violation of the Family and Medical Leave Act (“FMLA”). Compl. ¶ 26. For relief, plaintiff seeks
damages, interest, attorney fees, and costs.
Defendant seeks summary judgment on the grounds that plaintiff cannot make out
a prima facie case of discrimination under any of these theories and that, even if he could do so, he
cannot show that defendant’s stated reason for discharging him is pretextual. Under Fed. R. Civ.
P. 56(a), summary judgment is appropriate “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.” “[T]he 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 dispute as to
any material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). Viewing the evidence in the light most favorable to the opposing party, summary
judgment may be granted only if the evidence is so one-sided that a reasonable fact-finder could not
find for the opposing party. See id. at 248-50; Street v. J.C. Bradford & Co., 886 F.2d 1472, 147880 (6th Cir. 1989). In other words, “[a] material issue of fact exists where a reasonable jury,
viewing the evidence in the light most favorable to the non-moving party, could return a verdict for
that party.” Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir. 1990). “The pivotal
question is whether the party bearing the burden of proof has presented a jury question as to each
element of its case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
In his response to defendant’s motion, plaintiff indicates that his age discrimination
claim is based on certain comments he perceived as being ageist and his belief that he was replaced
by a younger worker. Pl.’s Br. at 4-6, 11-12. Plaintiff’s disability discrimination claim is that after
he was injured in an automobile accident in 2011, defendant was slow to give him two requested
accommodations (a telephone headset and a more comfortable chair) and his superiors ridiculed his
request for a telephone headset. Id. at 2-3, 13. Additionally, plaintiff alleges that defendant
discharged him because of his disability. Id. at 13-14. Plaintiff’s FMLA discrimination claim is
based on his allegation that one of his supervisors told him in 2014 that “HR is watching your
FMLA, so watch what you’re doing” and the fact that he was discharged shortly after informing
defendant that “he soon would be applying for intermittent FMLA.” Id. at 4, 10. Regarding pretext,
plaintiff argues that a jury should assess defendant’s stated reason for terminating him (“us[ing]
abusive language toward an employee and in the presence of other employees,” Def.’s Ex. Y)
because no other employees have been discharged for using profanity, Pl.’s Br. 15, and because one
of his supervisors admitted that she violated a workplace rule but was not disciplined. See Pl.’s
Supp. Br. at 2-3.
Having reviewed the parties’ briefs and exhibits, the Court concludes that defendant
is entitled to summary judgment on all of plaintiff’s claims for the following reasons.
Age Discrimination Claim
The parties do not disagree about the legal standards applicable to this claim, which
the Sixth Circuit has summarized as follows:
The ADEA states that “[i]t shall be unlawful for an
employer—... to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff
may bring an age discrimination claim by either showing direct
evidence of discrimination or through the use of circumstantial
evidence. See Martin v. Toledo Cardiology Consultants, Inc., 548
F.3d 405, 410 (6th Cir. 2008). [Plaintiff] does not allege any direct
evidence of age discrimination, so we must look at circumstantial
evidence and apply the McDonnell Douglas burden-shifting
framework. Wexler v. White's Fine Furniture, Inc., 317 F.3d 564,
570–74 (6th Cir. 2003). Under this analysis, the employee first has
the burden to prove a prima facie case. Id. at 574. If he succeeds, the
employer must show a legitimate, nondiscriminatory reason for the
adverse employment action. Id. If a satisfactory response is made, the
employee has the burden to rebut this reason by proving that it was
merely pretext for age discrimination. Id. Ultimately, this requires
showing by a preponderance of the direct or circumstantial evidence
that “but for” his age, the employee would not have suffered the
adverse action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78,
129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).
To make out a prima facie case of age discrimination using
circumstantial evidence, the employee must show that he (1) is a
member of the protected class; (2) was subject to an adverse
employment action; (3) was qualified for the position he held; and (4)
was replaced by someone outside the protected class. Geiger v.
Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009).
Terre v. Hopson, 708 F. App’x 221, 224 (6th Cir. 2017). “The same analysis governs [ADEA and
ELCRA] claims.” Bondurant v. Air Line Pilots Ass’n, Int’l, 679 F.3d 386, 394 (6th Cir. 2012).
Plaintiff does not contend that he has any direct evidence that he was discharged
because of his age. Nor may the comments he identified at his deposition as showing anti-age bias
be viewed as direct evidence of discrimination. For instance, plaintiff testified that the human
resources representative at the facility where he worked, Stacey Simonson, “always in meetings
would say, ‘And how many years do you have in at Chrysler again?’” Pl.’s Dep. at 191. But when
pressed, plaintiff could provide only one example when Simonson made such a comment. During
a discussion of the company’s policy regarding which employees “were supposed to go out to the
accident scene [when] [t]here was a death,” plaintiff thought that “it’s always been the . . . safety
department” that should go, while Simonson believed the policy required plaintiff to do so. Id. at
192-93. Simonson’s question – “How many years have you worked here?” – is not direct evidence
of discrimination because it does not require the conclusion that defendant discriminated against
plaintiff because of his age. Rather, the comment could be construed as a criticism of plaintiff’s
unfamiliarity with the policy despite his many years of service for the company. Likewise, plaintiff
indicated that Simonson sometimes asked similar questions – “So how many years does Steve
Daidone have with Chrysler?”– in meetings where the topic was “[o]n how to do certain things.”
Pl.’s Dep. at 193.
Plaintiff did point to one possibly ageist comment by Ross Sharp, who allegedly
“used to call me ‘Old man. You can’t get out of the chair. Why don’t you just retire.’” Pl.’s Dep.
at 197. However, plaintiff testified that Sharp was a fellow co-worker who “wanted my job,” not
a supervisor. Id. Plaintiff did not report the comment, and he acknowledged that none of his
supervisors made ageist comments. Id. at 199.
Since plaintiff has no direct evidence of age discrimination, the McDonnell-Douglas
analytical framework applies. Plaintiff has failed to state a prima facie case of age discrimination
because he has not produced any evidence that he “was replaced by someone outside the protected
class.” Terre, 708 F. App’x at 224. In his response to the instant motion, plaintiff asserts that
“Defendant replaced Plaintiff with a person 30 years younger than him [Ex. 1, Daidone Deposition
Exhibit 26].” Pl.’s Br. at 6, 11. The cited deposition exhibit is not attached to either party’s brief,
and the only reference to it during plaintiff’s deposition appears on p. 315, where plaintiff identified
the exhibit as his “EEOC Intake Questionnaire.” In short, there is nothing in this record beyond
plaintiff’s mere allegation that he was replaced by a younger worker. There is no testimony or other
evidence identifying plaintiff’s replacement and the replacement’s age. Defendant is entitled to
summary judgment on plaintiff’s age discrimination claims due to plaintiff’s failure to state a prima
The Sixth Circuit has summarized the standards governing plaintiff’s failure-toaccommodate claim as follows:
To establish a prima facie case of disability discrimination under the
ADA for failure to accommodate, [plaintiff] must show that: “(1) she
is disabled within the meaning of the Act; (2) she is otherwise
qualified for the position, with or without reasonable accommodation;
(3) her employer knew or had reason to know about her disability; (4)
she requested an accommodation; and (5) the employer failed to
provide the necessary accommodation.” Johnson v. Cleveland City
Sch. Dist., 443 Fed.Appx. 974, 982–83 (6th Cir. 2011) (citing
DiCarlo v. Potter, 358 F.3d 408, 419 (6th Cir. 2004) ). “Once a
plaintiff establishes a prima facie case, the burden shifts to the
employer to demonstrate that any particular accommodation would
impose an undue hardship on the employer.” Id. at 983 (citing
DiCarlo, 358 F.3d at 419).
Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 603 (6th Cir. 2018). “The
PWDCRA substantially mirrors the ADA,” Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012),
and the parties have not shown that plaintiff’s PWDCRA claim should be analyzed under a different
This prong of plaintiff disability discrimination claim is untimely. Plaintiff testified
that he was injured in an automobile accident in April 2011 and that he returned to work at the end
of August 2011. Pl.’s Dep. at 68, 223. The accommodations he requested were a telephone headset
and a more comfortable chair, both of which defendant provided by the end of November 2011. Id.
at 226, 231, 238-39. Under the ADA, plaintiff had 300 days to file a complaint with the EEOC and
then 90 days after receiving a right-to-sue letter to commence a civil action. See Fritz v.
Financialedge Cmty. Credit Union, 835 F. Supp. 2d 377, 383 (E.D. Mich. 2011). Under the
PWDCRA, plaintiff had to bring suit within three years of the date his cause of action accrued. See
Hunter-Ford v. Visteon Corp., 2009 WL 3190479, at *5 (E.D. Mich. Sept. 28, 2009). Assuming
defendant’s alleged slowness in providing the requested accommodations was actionable, plaintiff’s
failure-to-accommodate claims accrued by November 2011. But plaintiff did not file a complaint
with the EEOC until five years later, in September 2016, see Def.’s Ex. Z, and he did not commence
the instant action until February 2017. Therefore, plaintiff failure-to-accommodate claims under
both the ADA and the PWDCRA are plainly time-barred. The Court shall grant summary judgment
for defendant on this claim on this basis.
Plaintiff also claims that defendant discharged him because of his disability. Because
plaintiff has no direct evidence that defendant discharged him on this basis, the following standards
govern this claim under the ADA:
To make a prima facie showing of wrongful discharge through
circumstantial evidence, [plaintiff] must show that 1) he is disabled,
2) he is “otherwise qualified for the position,” 3) he “suffered an
adverse employment decision,” 4) [defendant] “knew or had reason
to know” of [plaintiff’s] disability, and 5) the “position remained
open while the employer sought other applicants or the disabled
individual was replaced.” Whitfield v. Tennessee, 639 F.3d 253,
258–59 (6th Cir. 2011) (quoting Macy v. Hopkins Cnty. Sch. Bd. of
Educ., 484 F.3d 357, 365 (6th Cir. 2007)). “[O]nce a plaintiff makes
out a prima facie case, the burden shifts to the defendant to articulate
a non-discriminatory explanation for the employment action[.]” Id.
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The plaintiff must then show
that the defendant’s explanation is pretextual. Id.
Cady v. Remington Arms Co., 665 F. App’x 413, 419 (6th Cir. 2016). Again, the Court shall use the
same standard in analyzing this claim under the PWDCRA.
This claim fails because plaintiff has not shown that he was “disabled” when
defendant discharged him. Under the ADA, a disability is defined as “(A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a record
of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).
Similarly, under the PWDCRA disability is defined as a “determinable physical or mental
characteristic of an individual, which may result from . . . injury . . . or functional disorder, if the
characteristic . . . (A) . . . substantially limits 1 or more of the major life activities of that individual”
or a history of or being regarded as having such a characteristic. Mich. Comp. Laws § 37.1103(d).
Plaintiff claims to be disabled because, as a result of his automobile accident in April
2011, he has shoulder and back pain and walks with a limp. Pl.’s Dep. at 68-69, 220-21. The only
“physical impairment” plaintiff has identified in connection with this claim is his sore hip, which
causes him to limp. While walking is a major life activity under both the ADA and the PWDCRA,
see 29 C.F.R. § 1630.2(i), Stevens v. Inland Waters, Inc., 220 Mich. App. 212, 217-18 (1996)
(adopting the federal definition), plaintiff has not shown that his ability to walk is “substantially
limited.” Plaintiff worked full time from August 2011, when he returned to work following his
accident, until he was discharged in December 2015. He plays golf regularly, does yoga, drives a
car, does laundry, washes dishes, runs errands, and coached all of his son’s sports teams (basketball,
baseball, and soccer) until his son outgrew them. Pl.’s Dep. at 66-71. In light of this evidence, no
reasonable jury could find that plaintiff’s ability walk is substantially limited. See Black v. Roadway
Express, Inc., 297 F.3d 445, 451 (6th Cir. 2002) (affirming summary judgment for defendant
because plaintiff was not substantially limited by a knee injury, which restricted his ability to walk
and caused him to limp); Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997)
(“[M]oderate difficulty or pain experienced while walking does not rise to the level of a disability.”).
Therefore, defendant is entitled to summary judgment on plaintiff’s claims that defendant discharged
him because of his disability, as plaintiff has not made out a prima facie case.
Plaintiff’s FMLA retaliation claim is governed by the following standards:
The statute prohibits an employer from retaliating against an
employee for exercising her right to FMLA leave. 29 U.S.C. §
2615(a)(2). When a plaintiff attempts to establish an FMLA
retaliation claim based on circumstantial evidence, the McDonnell
Douglas framework governs. See generally McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);
see, e.g., Edgar v. JAC Products, Inc., 443 F.3d 501, 507–08 (6th Cir.
2006). Under this framework, the plaintiff bears the initial burden of
showing a prima facie case: (1) the employee was carrying out an
activity protected by the FMLA, (2) her employer knew she was
exercising her rights under the FMLA, (3) the employer took adverse
action against the employee, and (4) a causal link existed between the
protected activity and adverse action. Donald v. Sybra, Inc., 667 F.3d
757, 761 (6th Cir. 2012). If the employee establishes a prima facie
case, the burden shifts to the employer to offer a legitimate,
non-discriminatory reason for the adverse action. See Skrjanc v.
Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). If
the employer offers such a reason, the burden shifts back to the
employee to show that the articulated reason is a pretext to mask
Cooley v. E. Tenn. Human Res. Agency, Inc., 2017 WL 6547387, at *6 (6th Cir. Dec. 22, 2017).
As noted above, this claim is based on the fact that “immediately before his
termination, Plaintiff let Defendant know he soon would be applying for intermittent FMLA leave
to care for his very ill step-father.” Pl.’s Resp. at 4, 10. Plaintiff testified that three weeks before
his termination he told Simonson that “come January 1st  I’m going to go on FMLA for my
. . . stepfather.” Pl.’s Dep. at 206. Simonson’s response, which plaintiff found offensive, was “Oh,
we’re all going through that.” Id. Plaintiff also testified that sometime in 2014 one of his
supervisors, Jennifer O’Bey, told him “HR is watching your FMLA, so watch what you’re doing.”
Id. at 203. Plaintiff acknowledged that defendant granted all of his previous requests for FMLA
leave, in 2011, 2012, 2013, and 2014,which plaintiff used to care for his ill wife.1 Id. at 46-49.
Plaintiff testified that he did not request FMLA leave to care for his wife after 2014
because she moved to Florida. Pl.’s Dep. at 50-51.
For present purposes, the Court shall assume that plaintiff has met the first three
elements of a prima facie case. Nonetheless, plaintiff’s FMLA retaliation claim fails because he has
presented no evidence of a causal link between his stated intention to request FMLA leave and his
discharge three weeks later. No reasonable jury could interpret Simonson’s reaction – “Oh, we’re
all going through that” – as showing hostility to plaintiff’s request. Moreover, plaintiff has not
shown that Simonson was involved in the decision to discharge him, and Simonson testified that this
decision was made by “operating management,” i.e., Marty DiFiore, Bill Dooley, and Jennifer
O’Bey, and that she herself was not involved in the decision. Rogowski (nee Simonson) Dep. at 2425. Further, plaintiff testified that DiFiore “[n]ever got involved” with plaintiff’s FMLA requests,
that Dooley “told me he’d help me with anything I need” regarding his FMLA requests, and that
O’Bey “never said anything either way” regarding his FMLA leave or leave requests. Pl.’s Dep. at
Aside from Simonson’s allegedly hostile response to plaintiff’s intention to apply for
FMLA leave, all plaintiff has shown regarding causation is the comment allegedly made by O’Bey
in 2014 that “HR is watching your FMLA, so watch what you’re doing,” which plaintiff assumed
to be a reference to Simonson, as she was the only HR manager at the facility where plaintiff
worked. Pl.’s Dep. at 203-04. Even assuming this comment is evidence of anti-FMLA animus,
either by O’Bey or Simonson (who, as noted, was not involved in the discharge decision), it is
simply too remote in time to have any probative value regarding causation. Temporal proximity
alone suffices to make a prima facie showing of causation only if the protected activity and the
adverse employment action are “very close in time.” Mickey v. Zeidler Tool & Die Co., 516 F.3d
516, 525 (6th Cir. 2008). In the present case, plaintiff was discharged at least one year after O’Bey
made this comment, well beyond the “very close” temporal proximity required by Mickey.
Accordingly, defendant is entitled to summary judgment on plaintiff’s FMLA retaliation claim due
to plaintiff’s failure to make a prima facie showing of causation between his announced intention
to request FMLA leave and his discharge.
Even if plaintiff had stated a prima facie case as to any of his claims, the Court would
be compelled to grant summary judgment for defendant because plaintiff has failed to show that the
stated reason for discharging him was a pretext for unlawful discrimination or retaliation. The stated
reason was “that you used abusive language toward an employee and in the presence of other
employees.” Def.’s Ex. Y. Plaintiff contends that a jury could disbelieve this explanation because
“Defendant’s workplace is full of profane language [and] . . . no one – other than Plaintiff – has ever
been terminated (or even disciplined) for using profane language in the workplace.” Pl.’s Resp. at
6-7. Plaintiff also contends that a jury could disbelieve defendant’s explanation because O’Bey
admitted at her deposition that she has violated certain workplace rules (e.g., by smoking in a
Chrysler vehicle) without being disciplined. Pl.’s Supp. Br. at 2-3.
When an employer presents a legitimate, non-discriminatory reason for the adverse
employment action at issue, the employee may attempt to
establish pretext by showing that the employer’s proffered reason (1)
has no basis in fact, (2) did not actually motivate the action, or (3)
was insufficient to warrant the action. Seeger, 681 F.3d at 285.
Regardless of the method, the plaintiff must produce sufficient
evidence for the jury to conclude that the employer’s reason was
false, and that discrimination was the real reason. Id. Unlike its role
in establishing a prima facie case, “the law in this circuit is clear that
temporal proximity cannot be the sole basis for finding pretext.”
Donald, 667 F.3d at 763.
Cooley, 2017 WL 6547387, at *7.
In the present case, plaintiff has a documented history of losing his temper and
berating other employees with offensive language. In his 2013 performance review, plaintiff
received a “low” rating for “treat[ing] people with dignity and fairness.” Def.’s Ex. L. Specifically,
this review noted:
His presentation tends to put people on the defensive, and his sage
advice never gets through to the pupils. Steve needs to work on his
coaching skills - to remove the emotion - so that his viewpoints are
considered more strongly. Steve loses patience, especially with
drivers, and by doing so causes disruptions to the Operation. Steve
tends to ‘shoot from the hip’ which al[i]enates Assembly plant
Follow up folks, CGT Maintenance, Safety, Scheduling, and the
Union. Steve needs to find ways to present only the ‘facts,’ and tone
down his emotions in his messages. . . . His treatment of others tends
to diminish the perception that Steve is effectively leading.
On his 2014 performance review, plaintiff again received a “low” rating for
“treat[ing] people with dignity and fairness.” Def.’s Ex. P. This review noted:
Steve has improved in the area of keeping things simple, however he
now needs to improve in the area of acting with integrity. Steve
needs to work on his behavioral patterns to show that he places the
company’s values over his personal objectives. Acting with integrity
means that Steve needs to show others respect. There have been
multiple instances of shouting matches between Steve and his
coworkers over the past year. Steve needs to improve his
interpersonal skills over the next year. . . . Polite communication and
respectable behavior are areas that can help Steve stand out as a
In September 2014 plaintiff was suspended for five days for what plaintiff described
as an “uncharacteristic outburst” that he attributed to “medication I was on.” Pl.’s Dep. at 171-75.
Plaintiff testified he did not remember what he said, but he acknowledged that the reason defendant
gave for his suspension was that he said to the employee, “Why don’t you just fucking quit. If you
don’t know how to do your job, just fucking quit.” Id. at 175.
In July 2015 plaintiff was suspended for ten days for an incident that occurred the
previous month. Def.’s Ex. S. The notice of this suspension stated:
The investigation has concluded that your behavior was inappropriate
and that you used abusive language toward an employee. This
behavior is intolerable from any FCA US LLC employee, but is
especially concerning from a Management employee. You have used
poor judgment and poor supervisory skills that are detrimental to this
A third incident, which led to plaintiff’s termination, occurred in October 2015. In
Stephen was filling-in as a Dispatch Supervisor on October 22, 2015
when a HBU employee, George Rakowiecki, called into the
supervisor desk to remove a maintenance issue with the tractor.
Stephen answered the phone, spoke to George, and put the phone
down on the desk. While the phone was laying on the desk, George
alleges that Stephen said, “that fuck-up Rakowiecki doesn’t want to
work, that fuckin poleck [sic] fucked up the truck so he doesn’t have
to pull any loads”.
This case was investigated on November 2, 2015. The investigation
was conducted by Stacey Simonson, with William Dooley, Terminal
Manager present. Stephen admitted to saying “that fucking George
Rackowiecki, that lazy driver at Sterling.” Stephen denies using the
work “poleck” [sic].
Def.’s Ex. W. Plaintiff was discharged for “us[ing] abusive language toward an employee and in
the presence of other employees.” Def.’s Ex. Y. As noted above, the discharge decision was made
by “operating management,” i.e., Marty DiFiore, Bill Dooley, and Jennifer O’Bey.
Plaintiff testified at length about the widespread use of profanity (“shoptalk”) within
the facility where he worked. According to plaintiff, “Everybody used shoptalk all the time and still
do,” by which he meant frequent use of the “F word” and similar language. Pl.’s Dep. at 108-12.
Plaintiff’s pretext argument is that “nobody else, except me, ever got in any trouble for . . . using
shoptalk.” Id. at 115. Plaintiff also points to Dooley’s and Simonson’s testimony acknowledging
the use of profanity at the plant.
The fact that profanity was common at plaintiff’s workplace does nothing to suggest
that defendant’s reason for discharging plaintiff was a pretext for discrimination or retaliation.
Plaintiff was not fired for using profanity, but for “us[ing] abusive language toward an employee
and in the presence of other employees.” Profanity in an of itself was not the problem, so it is
irrelevant if, as plaintiff claims, defendant never fired anyone for swearing.2 Rather, it was
plaintiff’s use of abusive language and in the presence of others that defendant says led to plaintiff
being discharged. The fact that plaintiff, who was a supervisor, had a documented history of such
behavior – i.e., of loudly treating employees rudely and disrespectfully – further weakens his
argument that a jury could disbelieve the stated reason for his discharge. As plaintiff has failed to
demonstrate pretext, defendant’s nondiscriminatory explanation for discharging him stands
Finally, even if plaintiff had cast any doubt on the truthfulness of defendant’s
explanation for discharging him, defendant would still be entitled to summary judgment. As noted,
It is equally irrelevant that O’Bey smoked in her truck but was not disciplined. Plaintiff
has not explained why all violations of defendant’s standards of conduct should be handled in
the same way. To demonstrate pretext, plaintiff would have to show that defendant did not
discipline supervisors who abused employees as plaintiff did. Importantly, he has not identified
any other supervisors who abused employees (and in the presence of others), and who were
repeatedly counseled to stop doing so, but who were not discharged.
plaintiff’s burden is not only to “produce sufficient evidence for the jury to conclude that the
employer’s reason was false,” but also “that discrimination was the real reason.” Cooley, 2017 WL
6547387, at *7 (citing Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012)).
For the reasons stated above, plaintiff has produced no evidence from which a jury could find that
the “real reason” defendant discharged him was his age, his disability, or his intention to request
Having considered the evidence in the light most favorable to plaintiff, the Court
concludes for the reasons stated above that defendant is entitled to summary judgment on all of
plaintiff’s claims. Accordingly,
IT IS ORDERED that defendant’s motion for summary judgment is granted.
Dated: April 13, 2018
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented
parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the
Notice of Electronic Filing on April 13, 2018.
s/Johnetta M. Curry-Williams
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