McIntosh v. Greater Cleveland Regional Transit Authority

Filing 39

Opinion and Order. Defendant's Motion for Summary Judgment (Related doc # 34 ) is denied. Judge Christopher A. Boyko on 3/22/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRYAN MCINTOSH,

)
)
Plaintiff,
)
)
vs.
)
)
GREATER CLEVELAND REGIONAL )
TRANSIT AUTHORITY,
)
)
Defendant.
)

CASE NO. 1:16CV1680
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant Greater Cleveland Regional Transit
Authority’s (“RTA”) Motion for Summary Judgment. (ECF # 34). For the following reasons,
the Court denies Defendant’s Motion.
Plaintiff’s Amended Complaint
According to his Amended Complaint, Plaintiff Bryan McIntosh (“McIntosh”) was hired
by RTA as a Quality Assurance Associate (“QA”) in August of 2014. McIntosh is an AfricanAmerican male and a Muslim. McIntosh was one of four QA’s who reported to supervisor Frank
Campbell (“Campbell”). The other three QA’s were Caucasian. McIntosh alleges Campbell
treated him differently than his Caucasian counterparts. McIntosh alleges Campbell required
him to submit weekly QA visit forms for the entire time he was under Campbell’ supervision.
McIntosh contends that either Campbell did not require the visit forms from the Caucasian QA’s

at all or did not require the forms from the Caucasian QA’s after they had been employed for six
months. Campbell reprimanded McIntosh for QA visit form violations.
Campbell attempted to enforce a strict start time policy with McIntosh even though
McIntosh was a salaried employee exempt from a rigid start time under RTA’s flex time policy.
Under the flex time policy, exempt employees may start their work days between the hours of
6:00 and 9:00 a.m. so long as they worked a full eight hour day. In spite of this policy, Campbell
reprimanded McIntosh for attendance or tardiness issues. RTA policy prohibited taking adverse
actions against salaried employees for attendance/tardiness issues. Campbell did not reprimand
Caucasian QA’s for attendance/tardiness issues.
McIntosh alleges Campbell “spied” on him during work, monitoring him more closely
than the Caucasian QA’s. This was noticed by other RTA employees. Campbell also monitored
McIntosh’s social media posts, commenting on them at work and even printing one and showing
it to others at RTA. Campbell did not review the social media posts of the Caucasian QA’s.
In March of 2015, McIntosh was on a business trip with Campbell when Campbell
allegedly made remarks in McIntosh’s presence disparaging Muslims. According to McIntosh,
Campbell stated that the “Quran is going to replace the Bible” and that “Muslims are taking over
the world and they should all just be nuked and wiped out.” In April of 2015, McIntosh filed a
Complaint with the EEOC alleging that Campbell harassed and discriminated against McIntosh
based on McIntosh’s religion. McIntosh subsequently amended his EEOC Complaint to add a
claim of race discrimination. On May 7, 2015, RTA and Campbell were notified of the
McIntosh Complaint. Upon being notified of McIntosh’s EEOC Complaint, RTA suspended
McIntosh the following day based on an unsubstantiated charge and set a pre-termination

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hearing.

McIntosh had the charge dismissed, returned to work and subsequently filed a

retaliation claim with the EEOC against RTA. RTA placed McIntosh on decision-making leave
(“DML”)which McIntosh contends was the equivalent of a final written warning. McIntosh
alleges he had no prior disciplinary actions that would justify such disciplinary action.
Thereafter, McIntosh requested a transfer but was denied.
The EEOC investigation found Campbell had trouble communicating with minority
employees, many of whom felt disrespected by Campbell. As a result of the investigation,
Campbell was required to attend professional development courses.
As part of his job duties, McIntosh was scheduled to go to California to inspect buses that
RTA intended to purchase. After denying his transfer, McIntosh contends RTA further retaliated
against him by cancelling his California trips, sending three other Quality Assurance
representatives to California and placing McIntosh on lower valued work.
McIntosh was required to report to Dan Dietrich in addition to Campbell. McIntosh
knew Dietrich and Campbell were friends. Dietrich, as Campbell before him, tried to discipline
McIntosh for attendance/tardiness issues but was told by RTA management McIntosh was not
subject to discipline for alleged attendance concerns. Dietrich instead assigned McIntosh lower
value work. McIntosh contends a Caucasian employee refused to do a specs review job but was
not disciplined. Instead, RTA made McIntosh do the job the Caucasian employee refused to do.
In September 2015, after another suspension, McIntosh’s employment with RTA was terminated
for purportedly approving a shipment of brakes without inspecting them. The brakes were either
defective or the wrong size. McIntosh asserts the claim was never substantiated. McIntosh
alleges retaliation, race and religious discrimination claims under federal and Ohio law.

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McIntosh subsequently dismissed with prejudice his religious discrimination claims under
federal and Ohio law.
RTA’s Motion for Summary Judgment
According to RTA, McIntosh was terminated for poor performance, not for any unlawful
discriminatory or retaliatory motive. RTA’s Motion provides in great detail McIntosh’s alleged
attendance/tardiness violations. According to RTA, McIntosh was subject to the RTA’s flextime policy. That policy allows employees to choose a start time between 6:00-9:00 a.m. It does
not allow employees to come in whenever they choose between those hours on any given day.
McIntosh chose a start time of 6:00 a.m. Within the first three weeks he was late five of his first
twelve days. Over his one year employment, RTA contends McIntosh was late or absent over
fifty times. Within one month of McIntosh’s employment, Campbell issued him a written
warning for performance and attendance infractions. McIntosh kept pushing his start time later
and later and had several discussions with Campbell for his routine tardiness and failure to
timely provide weekly visit reports. Campbell assigned McIntosh a project that after one year
McIntosh still had failed to complete. Dan Dietrich asked McIntosh why he failed to show up
for work on March 23, 2015, without calling in. McIntosh told Dietrich he used it as a comp
day, which Dietrich informed McIntosh required prior approval. Campbell issued another
written reprimand on April 14, 2015, for McIntosh missing deadlines, McIntosh then filed his
EEOC Complaint. On April 30, 2015, before he knew that McIntosh had filed a Complaint with
the EEOC against him, Campbell requested that McIntosh be placed on Decision Making Leave
(“DML”). A DML is a last chance agreement wherein an employee must meet all the
requirements of his or her job for twelve months or face termination. After a meeting between

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Campbell, his supervisor and RTA’s Labor Relations representatives to discuss placing
McIntosh on DML, Labor Relations recommended termination. However, before termination
was implemented, RTA learned of McIntosh’s EEOC Complaint. On May 8, 2015, RTA
suspended McIntosh pending a pre-termination hearing, which was held May 13, 2015. As a
result, RTA placed McIntosh on a DML and had him report to Dan Dietrich while McIntosh’s
EEOC Complaint was investigated. In July 2015, Dietrich reported little or no improvement in
McIntosh’s performance. In August, Dietrich gave McIntosh a written performance directives
memo outlining expectations for McIntosh. Dietrich told McIntosh he was not meeting
expectations. McIntosh’s attendance and performance issues persisted during Dietrich’s
supervision of McIntosh. The final straw was McIntosh approved brake kits that video evidence
shows he failed to even open, let alone inspect. He was subsequently terminated.
According to RTA, the above attendance and performance issues provided sufficient nondiscriminatory and non-retaliatory reasons for McIntosh’s termination. RTA argues McIntosh
has no direct evidence of discrimination or retaliation. RTA concedes McIntosh may be able to
meet his prima facie burden but contends that McIntosh is unable to demonstrate pretext under
any of the three accepted methods. Because its reasons for terminating McIntosh relate to his
performance and attendance issues and not his race or his engaging in protected activities, RTA
is entitled to summary judgment on McIntosh’s claims.
McIntosh’s Brief in Opposition
McIntosh does not assert that he has direct evidence of discrimination, but instead relies
on indirect evidence to establish his claims. McIntosh challenges the very basis of his discipline
under the RTA flex-time policy which he contends he did not violate. McIntosh describes the

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policy as “Under RTA’s flex time schedule I had to complete eight hours per day. Whether I
completed those eight hours starting at 6:00 a.m. in the morning or at 9:00 a.m. in the morning
or in between.” (McIntosh aff. at para 5). In an interoffice memo dated April 30, 2013 from
Joseph Calabrese, CEO of RTA, to all non-bargaining, exempt employees, it reads in pertinent
part:
...RTA will allow non-bargaining exempt employees to choose, within specified
limits of your department and supervisor, the daily hours of work preferred.
Thus, employees in a particular department or section may have different starting
and finishing times, but will, of course, be required to complete the necesssary
(sic) work of their position....
Also, exempt employees will not be held to the tardy, leave early and occurrence
provisions of the attendance Policy should they need to adjust their daily schedule
to attend to non-RTA business related concerns.
Supervisors need to approve any schedule adjustments prior to any employees
changing their regularly scheduled hours...
In interpreting this policy, McIntosh argues he understood this to mean he could report
on any given day between 6:00 a.m. and 9:00 a.m. so long as he worked eight hours. This
understanding was echoed by other RTA employees. Furthermore, McIntosh contends the flextime policy’s plain language says he should not have been disciplined for violating the
Attendance Policy, yet his being placed on DML was largely related to his attendance issues.
But for being on DML, McIntosh claims he would not have been terminated for failing to inspect
brake pads.
McIntosh further contends his fellow Caucasian QA’s were not written up for attendance
or tardiness violations even though the record shows they incurred a number of such infractions.
Also, they were not required to submit weekly visit forms like McIntosh. Furthermore,
Campbell’s heightened observation of McIntosh and scrutiny of McIntosh’s social media posts,
which Campbell reportedly found racist, show an animus towards McIntosh based on his race.
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RTA placed McIntosh on DML one week after they learned of his EEOC Complaint.
According to McIntosh, this proximity in time evidences a retaliatory intent. Finally, RTA
concedes McIntosh was replaced by a Caucasian.
LAW AND ANALYSIS
Standard of Review
Summary judgment is proper “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.” See Fed. R. Civ. P.
56(a). The burden is on the moving party to conclusively show no genuine issue of material fact
exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d
1339, 1347 (6th Cir. 1994); and the court must view the facts and all inferences in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). Once the movant presents evidence to meet its burden, the nonmoving party
may not rest on its pleadings, but must come forward with some significant probative evidence
to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at 1347. This Court does
not have the responsibility to search the record sua sponte for genuine issues of material fact.
Betkerur v. Aultman Hosp. Ass’n., 78 F.3d 1079, 1087 (6th Cir. 1996); Guarino v. Brookfield
Township Trs., 980 F.2d 399, 404-06 (6th Cir. 1992). The burden falls upon the nonmoving
party to “designate specific facts or evidence in dispute,” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986); and if the nonmoving party fails to make the necessary showing on an
element upon which it has the burden of proof, the moving party is entitled to summary
judgment. Celotex, 477 U.S. at 323. Whether summary judgment is appropriate depends upon
“whether the evidence presents a sufficient disagreement to require submission to a jury or

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whether it is so one-sided that one party must prevail as a matter of law.” Amway Distribs.
Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477
U.S. at 251-52).
Race Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “based on
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Moreover, the Ohio
Supreme Court holds that federal case law interpreting Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq., is applicable to cases involving alleged violations of R.C. Chapter
4112. Plumbers & Steamfitters Comm. v. Ohio Civil Rights Comm., 66 Ohio St.2d 192, 196
(1981). Therefore, the Court will analyze Plaintiff’s federal and state claims under the same
framework.
“In order to establish a Title VII employment discrimination claim, a plaintiff must either
present direct evidence of discrimination or introduce circumstantial evidence that would allow
an inference of discriminatory treatment.” Johnson v. Kroger Co., 319 F.3d 858, 864-865 (6th
Cir. 2003). McIntosh does not offer any direct evidence of discrimination. Instead, he
acknowledges the applicability of the evidentiary framework set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1972) and Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248 (1981). (Plaintiff’s Memorandum in Opposition, ECF DKT # 37 at 13).
To establish a prima facie case for race-based discrimination in violation of Title VII, a
plaintiff must show: “(1) that he is a member of a protected class; (2) that he suffered an adverse
employment action; (3) that he was qualified for the position; and (4) that a similarly-situated
employee outside the protected class or classes was treated more favorably than he.” Younis v.

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Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir. 2010) (citing McDonnell Douglas Corp., 411
U.S. at 802). A plaintiff may also establish a prima facie claim for race discrimination if after
meeting the first three elements he can further show he “was replaced by someone outside of the
protected class.” Coffman v. United States Steel Corp., 185 F. Supp. 3d 977, 984 (E.D. Mich.
2016) quoting Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). The burden at the prima
facie stage is not an onerous one, and it is easily met. Cline v. Catholic Diocese of Toledo, 206
F.3d 651, 660 (6th Cir. 2000).
Upon a prima facie showing of discrimination, the burden shifts to the defendant “to
articulate some legitimate, nondiscriminatory reason” for the employer’s actions. Burdine, 450
U.S. at 253.
“[S]hould the defendant carry this burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination.” Id. At this stage, “the burden of
producing evidence of pretext essentially merges with the burden of persuasion, which always
lies with the plaintiff.” Gragg v. Somerset Technical Coll., 373 F.3d 763, 768 (6th Cir. 2004)
(quoting Wilkins v. Eaton Corp., 790 F.3d 515, 522 (6th Cir. 1986)). A plaintiff may
demonstrate pretext by showing that the defendant’s proffered reason “(1) has no basis in fact,
(2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576
(2003) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).
“For purposes of establishing pretext, a plaintiff must show more than a dispute over the
facts upon which the [adverse action] is based.” Kumar v. Aldrich Chemical, 911 F.Supp.2d

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571, 589 (S.D. Ohio 2012) citing Abdulnour v. Campbell Soup Co., 502 F.3d 496, 502 (6th Cir.
2007). A plaintiff must “put forth evidence which demonstrates that the employer did not
‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment
action.” Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). So long as an employer
honestly believed its proffered reason, an employee cannot show pretext, even if the facts are
later shown to be incorrect. Segel v. Kimberly-Clark Corp., 473 F.App’x 416, 421 (6th Cir.
2012); Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). “[A]bsent a showing that
[Defendants’] ‘explanations are inherently suspect’ or ‘other direct or circumstantial evidence
suggesting that the proffered reasons are not true,’ summary judgment is appropriate.”
Thompson v. Ohio State University, 639 F.App’x. 333, 341-42 (6th Cir. 2016) (quoting Hopson
v. DaimlerChrysler Corp., 306 F.3d 427, 438 (6th Cir. 2002)).
Here, RTA assumes arguendo that McIntosh can meet his prima facie burden,
acknowledging he was a member of a protected class, he suffered an adverse employment
action-i.e. his termination, he was objectively qualified for the job and he was replaced by a
Caucasian male. RTA relies instead on its argument that McIntosh cannot show RTA’s reasons
for McIntosh’s termination were pretextual.
Having conceded for purposes of its Motion that McIntosh can meet his prima facie
burden, the burden shifts to RTA to articulate a legitimate, non-discriminatory reason for the
adverse employment action. RTA has met its own burden by showing McIntosh was tardy or
absent more than fifty times in his year long employment. None of the other QA’s had anywhere
near that number of infractions. Coupled with McIntosh’s failure to timely submit his weekly
visit sheets, failure to timely complete assignments and ultimately failure to even inspect brakes

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he then approved, all present legitimate nondiscriminatory bases for his termination. See
Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531, 546 (6th Cir. 2008) (“Poor performance is a
legitimate, nondiscriminatory reason for terminating a person's employment.” See also Harris v.
Circuit Court, Clerk's Office, Metro. Nashville, 21 F. App'x 431, 433 (6th Cir. 2001)( poor
attendance record was a legitimate non-discriminatory basis for termination.) Having met its
burden, it falls to Plaintiff to establish pretext by one of the three accepted methods- i.e. that
Defendant’s articulated explanation: “(1) has no basis in fact, (2) did not actually motivate the
defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”
Wexler, 317 F.3d at 576.
McIntosh contends there are genuine issues of fact supporting all three bases for showing
pretext. Relying on the Kronos time records RTA used to track employee start and end times,
McIntosh provides time records for the three Caucasian QA’s who also reported to Campbell.
These purportedly show infractions by the other QA’s that resulted in no discipline. McIntosh
further relies on the Kronos time records to show he would show up for work at varying times
but still within the three hour flex-time window he contends was permitted under RTA’s flextime policy. This understanding was shared by fellow RTA employee Glenville Manning
(Manning depo. pg. 24-25):
Q. So your start time as you understood it was 6:00 to 9:00 am whenever you get
in between that time as long as you—obviously, if you get in later, you are
working later in the day?
A. Correct.
John Merriweather, another RTA employee testified on deposition as follows:

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Q. All right. So if on Tuesday you learn that on Wednesday there is going to be a
meeting that starts at 3:30, then you would just start your day later on
Wednesday?
A. Right, right.
Q. And is it just you would start your day just to ensure that you are still getting
those eight hours?
A. Right.
Q. Have you heard the term flex time or flex schedule?
A. Yes, I have.
Q. What is that? Explain that to me.
MS. MINAHAN : Objection. Go ahead.
A. It is when you have a different work schedule. Some people have flex time
starting at 10:00, and some people have it at 7:00. But it is never the same time, it
is flexible.
Q. Have you always understood that your schedule is flexible, if need be, for
you?
A. Yeah, that is the way I work.
RTA argues these employees did not report to Campbell and worked in different
departments than McIntosh so the testimony is not relevant, yet the flex-time policy covers all
exempt employees and is not limited to QA’s. Therefore, the Court finds the above testimony
and flex-time policy competent evidence of RTA’s flex-time policy as understood by its
employees. As such, it raises an issue of fact whether McIntosh’s reporting to work at varying

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times, so long as it was within the 6:00 a.m.- 9:00 a.m. window, was in violation of the RTA
Attendance Policy.
Furthermore, McIntosh contends the RTA flex policy prohibits discipline of exempt
employees for tardiness or leave issues. The Policy clearly states exempt employees “will not be
held to the tardy, leave early and occurrence provisions of the Attendance Policy should they
need to adjust their daily schedule to attend non-RTA business related concerns.” A plain
reading of the language indicates that McIntosh’s interpretation is plausible from the ambiguous
terminology concerning “non-RTA business related concerns.” McIntosh’s interpretation is
supported by the deposition testimony of Bruce Hampton, Deputy General Manager of Human
Resources at RTA, who testified:
Q. And the information you had available to you, was that simply from the
documentation you had, or were you talking to employees, as well, and getting
additional information?
A. I don't remember if I talked to anybody or not.
Q. Now, when you say some of the discipline was appropriate, which you also
say in your e-mail, did you find that some of the discipline was not appropriate?
A. Yes.
Q. Tell me which discipline you found that was not appropriate that was given to
Mr . Mcintosh.
A. I believe there were some write-ups for being late, and I didn't find that to be
appropriate.
Q. Why did you find that to be inappropriate?

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A. Well, because Mr. McIntosh, as I recall, was a non-bargaining exempt
employee, exempt under the Federal Labor Standards Act, and was not subject to
the tardies and the absence policy that we have here.
Q. So you believe that for any discipline regarding tardies or absences-related
issues for Mr. McIntosh, that he should not have been written up because he was
not subject to the policy that would have allowed him to be written up for that?
A. That’s correct.
(Hampton depo. pgs. 17-18)
The parties spend additional time contesting whether McIntosh was held to a stricter time
reporting standard than the Caucasian QA’s under Campbell. McIntosh points to time records
showing the other QA’s reported at different times on different days or clocked in hours late but
were never written up for doing so. RTA responds that those employees either did not report
more than thirty minutes late as McIntosh repeatedly did, or they used vacation time to cover the
late start time. Regardless of whether there was disparate treatment in punishing employees for
arriving more than thirty minutes outside their scheduled start time, the Court finds that whether
McIntosh was even subject to discipline for his late arrivals is a question of fact for the jury.
Since most, if not all of McIntosh’s reprimands, including his placement on DML, stem largely
from his attendance issues, the jury must determine whether under RTA’s own policy he was
subject to discipline and, if not, by inference whether this was pretext for unlawful
discrimination.
Similarly, it is undisputed that McIntosh was required to submit weekly visit forms for a
longer period of time than his Caucasian QA coworkers. RTA alleges it was due to McIntosh’s

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poor performance, but that poor assessment of his performance was due at least in part to his
attendance issues. Similarly, while he was terminated for failing to inspect defective brakes, the
termination was the result of his being placed on DML. His placement on DML was based in
large part on his attendance issues. Because this is a genuine issue of fact on whether his
conduct merited discipline under the RTA Attendance Policy, McIntosh has met his burden
creating an issue of fact on pretext.
Therefore, for the foregoing reasons the Court denies RTA’s Motion for Summary
Judgment on McIntosh’s race discrimination claims.
Retaliation
Title VII prohibits an employer from retaliating against an employee who has opposed
discriminatory conduct or filed “ a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” In Nguyen v. City of Cleveland, 229
F.3d 559, 563 (6th Cir. 2000), the Sixth Circuit articulated the standard a plaintiff must meet to
establish a prima facie retaliation case:
[A] plaintiff must establish that: (1) she engaged in activity protected by Title
VII; (2) the exercise of her civil rights was known to the defendant; (3) thereafter,
the defendant took an employment action adverse to the plaintiff; and (4) there
was a causal connection between the protected activity and the adverse
employment action.
“Where an adverse employment action occurs very close in time after an employer learns
of a protected activity, such temporal proximity between the events is significant enough to
constitute evidence of a causal connection for the purposes of satisfying a prima facie case of
retaliation.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). However, see
Cooper v. City of North Olmsted, 795 F.2d 1265 (6th Cir. 1986) (temporal proximity period of

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four months did not support prima facie inference of retaliation); see also Matricardi v. Astro
Shapes, Inc. 2007 WL 2902918, 14 (N.D.Ohio, 2007) (plaintiff failed to satisfy prima facie
burden of retaliation when temporal proximity period of four months absent other evidence). “In
this circuit, a period of more than four months was found to be too long to support an inference
of causation.” Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 550 (6th Cir. 2008).
“Specifically, the more time that elapses between the protected activity and the adverse
employment action, the more the plaintiff must supplement [her] claim with ‘other evidence of
retaliatory conduct to establish causality.’” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392,
400 (6th Cir. 2010).
“To establish the causal connection required in the fourth prong, a plaintiff must produce
sufficient evidence from which an inference could be drawn that the adverse action would not
have been taken had the plaintiff not filed a discrimination action.” Nguyen, 229 F.3d at 563.
Evidence that the City treated McIntosh differently from similarly situated employees is relevant
to causation.
The parties do not dispute that McIntosh can satisfy his prima facie burden to show he
engaged in a protected activity with the knowledge of RTA. McIntosh filed his EEOC
Complaint in April of 2015. RTA became aware of the filing, at the latest, on May 7, 2015. The
next day RTA suspended McIntosh pending a pre-termination hearing, which was held on May
13, 2015. The hearing resulted in McIntosh being placed on DML.
The parties dispute whether McIntosh suffered an adverse employment action temporally
close in time to RTA’s learning of McIntosh’s EEOC filing. Under Sixth Circuit precedent, “An
adverse employment action ‘constitutes a significant change in employment status, such as

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hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.’” Laster v. City of Kalamazoo, 746 F.3d 714,
727 (6th Cir. 2014) quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257,
141 L.Ed.2d 633 (1998). “Facing heightened scrutiny, receiving frequent reprimands for
breaking selectively enforced policies, being disciplined more harshly than similarly situated
peers, and forced to attend a pre-determination hearing based on unfounded allegations of
wrongdoing might well have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Laster, 746 F.3d at 732.
The Court finds McIntosh has met his prima facie burden showing an adverse
employment action. See Michael v. Caterpiller Financial Services Corp., 496 F.3d 584, (6th Cir.
2007)(holding that placing employee on brief paid administrative leave and 90–day performance
plan meet “relatively low bar” of materially adverse action for purpose of retaliation claim.)
Setting a pre-termination hearing and placing McIntosh on DML within days of learning of his
Complaint was sufficiently close in time to satisfy his prima facie showing a causal connection.
This is coupled with his showing, as discussed previously, that he was reprimanded for violating
a policy that the jury may find he was not subject to discipline for violating.
Again, for the same reasons, RTA can meet its burden of articulating a non-retaliatory
reason for the adverse action. But for the reasons described in the Court’s determination on race
discrimination, McIntosh has presented sufficient evidence of pretext concerning being placed
on a DML for attendance violations and performance issues to defeat summary judgment.
There is another issue for the jury concerning McIntosh’s termination. According to
RTA, McIntosh was subject to termination based solely upon his failure to inspect brakes under

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RTA disciplinary policy. However, McIntosh’s termination letter states, “Since you are on an
active DML, termination is warranted.” It further states, “Based upon the information and
evidence provided, it is this Hearing Officer’s opinion that the failure to conduct a proper QA
inspection warrants formal discipline. Given that you are currently on a DML, the decision to
terminate your employment with GCRTA is substantiated...” (RTA termination letter Sept. 29,
2015 at ECF # 32-14). Thus, the reason RTA gave McIntosh for his termination was due to his
violation while on a DML. Because his DML status is subject to disputed facts, the Court finds
RTA is not entitled to summary judgment on McIntosh’s retaliation claims.
Therefore, for the foregoing reasons, the Court denies RTA’s Motion for Summary
Judgment.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 22, 2018

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