Kostic v. United Parcel Service, Inc.

Filing 62

MEMORANDUM OPINION. Signed by District Judge Eli J. Richardson on 3/31/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

IVAN KOSTIC,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.

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NO. 3:18-cv-00556
JUDGE RICHARDSON

MEMORANDUM OPINION
Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 43,
“Motion”), accompanied by a Memorandum of Law in support thereof (Doc. No. 45). Plaintiff
filed a Response (Doc. No. 50), Defendant filed a Reply (Doc. No. 53), Plaintiff filed a Sur-Reply
(Doc. No. 58), and Defendant filed a Response to Plaintiff’s Sur-Reply (Doc. No. 59). Plaintiff
also filed a Response to Defendant’s Statement of Undisputed Facts (which included Plaintiff’s
Statement of Additional Material Facts) (Doc. No. 49), and Defendant responded to that statement
of additional material facts (Doc. No. 54). For the reasons set forth herein, the Motion will be
granted in part and denied in part.
BACKGROUND
Plaintiff Kostic was born in Leskovac, Serbia1 in 1972 and moved to Canada when he was
three years old. He resided in Canada until 2002, when he moved to Middle Tennessee. (Doc. No.

1

In 1972, Leskovac, like all of what is today Serbia, was part of the now-defunct Socialist Federal
Republic of Yugoslavia, which comprised the area covered by the now-existing independent
nations of Slovenia, Croatia, Montenegro, Bosnia & Herzegovina, North Macedonia (which, in a
matter of true diplomatic importance and controversy, until recently was formally known either as

54 at ¶¶ 1, 4). Plaintiff became a U.S. citizen on October 24, 2013. (Doc. No. 48-1 at 4-5 [Dep. at
9-10]). From January 2005 until June 2008, Plaintiff worked as a permanent part-time employee
of Defendant UPS as a delivery truck loader. (Doc. No. 54 at ¶ 6). On June 12, 2008, Plaintiff
became a full-time employee of Defendant as a “package car driver.” (Id. at ¶ 7). Plaintiff identifies
his race as Eastern European (Doc. No. 49 at ¶ 3) and his national origin as Serbia(n). (Id. at ¶ 4).
On July 17, 2017, Defendant discharged Plaintiff for “failing to treat his supervisors with
dignity and respect.” (Doc. No. 49 at ¶ 41). Plaintiff alleges that Defendant discriminated against
him because of his race and national origin and subjected him to a hostile work environment.
Plaintiff further maintains that he was fired because of his race and national origin and in retaliation
for his protected activity of filing grievances and calling the Human Resources hotline about the
alleged racial and national origin discrimination and harassment against him.

the Republic of Macedonia or the Former Yugoslav Republic of Macedonia), and Serbia; it also
includes the area comprising Kosovo, which historically has been part of Serbia but is now
recognized as an independent state by approximately 100 nations (including the United States but
not Serbia). The undersigned notes, as is a matter of public record, that approximately a decade
ago he served overseas with the United States government for 19 months in Serbia (with official
business taking him elsewhere in Eastern Europe as well). The undersigned can state
unequivocally that such experience has left him with a firm understanding of issues surrounding
the nationality and (alleged) race upon which Plaintiff claims he was discriminated against, but
the experience has not left him predisposed to be biased either in favor of or against either party
in this matter. Likewise, the undersigned does not rely herein on any impressions he has regarding
matters Serbian or Eastern European beyond those he believes subject to judicial notice anyway—
including whether, as Defendant suggests, alleged comments of which Plaintiff complains are
objectively unrelated to Serbia, Eastern Europe, or both and thus objectively do not implicate
Plaintiff’s claimed national origin or race. To the extent the undersigned conveys any other
impressions, he does not rely on them but rather notes them merely to help underscore his
understanding of applicable issues and, relatedly, the reality that if Plaintiff’s theories of racial
discrimination and national origin discrimination make no sense to him, it is not because he is
ignorant regarding Eastern Europe or Serbia but rather because the theories are objectively nonsensical.
2

Plaintiff’s Complaint (Doc. No. 1) asserts the following claims: COUNT I - discrimination
in violation of Title VII based upon race and national origin; COUNT II – hostile work
environment in violation of Title VII based upon race and national origin; COUNT III – retaliation
for protected activity in violation of Title VII; COUNT IV – racial discrimination in violation of
42 U.S.C. § 1981; and COUNT V – discrimination in violation of the Tennessee Human Rights
Act (“THRA”) based upon race and national origin.2
SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “By its very terms,
this standard provides 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 material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary
under applicable law is of no value in defeating a motion for summary judgment. See id. at 248.
On the other hand, “summary judgment will not lie if the dispute about a material fact is
‘genuine[.]’” Id.
A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect
the outcome of the suit under the governing substantive law.” Anderson, 477 U.S. at 248. A

The Complaint also alleges “Counts” for punitive damages and attorneys’ fees and expenses of
litigation, but such Counts set forth requested remedies, not claims. The first paragraph of the
Complaint also alleges that Defendant is liable to Plaintiff under Tennessee common law, but the
facts asserted in the Complaint do not specifically address liability under common law; moreover,
liability under Tennessee common law is not asserted in any of the Counts, and the Complaint
does not identify what Tennessee common law was allegedly violated.
3
2

genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).
The party bringing the summary judgment motion has the initial burden of identifying
portions of the record that demonstrate the absence of a genuine dispute over material facts.
Pittman v. Experian Information Solutions, Inc., 901 F.3d 619, 627-28 (6th Cir. 2018). If the
summary judgment movant meets that burden, then in response the non-moving party must set
forth specific facts showing that there is a genuine issue for trial. Id. at 628.
A party asserting that a fact cannot be or genuinely is disputed—i.e., a party seeking
summary judgment and a party opposing summary judgment, respectively—must support the
assertion by citing to materials in the record, including, but not limited to, depositions, documents,
affidavits or declarations. Fed. R. Civ. P. 56(c)(1)(A). In reviewing a motion for summary
judgment, this court must view the evidence in the light most favorable to the non-moving party.
Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020) (quoting Anderson, 477 U.S. at 248).
Likewise, the court should view the facts and draw all reasonable inferences in favor of the nonmoving party. Pittman, 901 F.3d at 628. Credibility judgments and weighing of evidence are
improper. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above,
where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id.
The court determines whether sufficient evidence has been presented to make the issue of fact a
proper jury question. Id. The mere existence of a scintilla of evidence in support of the non-moving
party’s position will be insufficient to survive summary judgment; rather, there must be evidence
upon which the jury could reasonably find for the non-moving party. Rodgers v. Banks, 344 F.3d
587, 595 (6th Cir. 2003).

4

To obtain summary judgment on Title VII or THRA claims3, a defendant either (i) must
show that there is no genuine issue of material fact as to at least one of the elements of the
plaintiff’s prima facie case and it is entitled to judgment as a matter of law on that element; or, if
it fails to do that, (ii) make an evidentiary showing4 that there was a legitimate, nondiscriminatory
reason for its alleged actions and then show that there is no genuine issue of material fact as to
pretext and that it is entitled to judgment as a matter of law on that issue. The plaintiff, on the other
hand, to avoid summary judgment, (i) must present sufficient evidence to demonstrate a genuine
issue of material fact as to any elements of his prima facie case as to which the defendant met its
initial burden to show the lack of a genuine issue of material fact; and also (ii) show that the
defendant (a) cannot make an evidentiary showing of a legitimate, nondiscriminatory reason for
its alleged actions, or (b) demonstrate that there is a genuine issue of material fact as to pretext.5
DISCRIMINATION
Title VII and the THRA prohibit discrimination based on, inter alia, national origin. 42
U.S.C. § 2000e-2; Tenn. Code Ann. § 4-21-102(4). By contrast, Section 1981 prohibits
discrimination on the basis of race but not discrimination on the basis of national origin. See Saint
Francis College v. Al–Khazraji, 481 U.S. 604, 613 (1987); Amini v. Oberlin Coll., 259 F.3d 493,

3

This same burden of proof applies for Section 1981 claims. Wyatt v. Nissan N. Am., Inc., No.
3:17-cv-1545, 2019 WL 6682197, at *3 (M.D. Tenn. Dec. 6, 2019).
4

To be clear, the requirement here is not merely to articulate a legitimate reason, but also (as
discussed below) to present evidence that the articulated legitimate reason was in fact the reason.
As indicated below, courts’ reference to a plaintiff’s requirement to show “pretext” is actually a
requirement to show not just pretext (i.e., that the claimed reason was provided to conceal the real
reason) but also to show that the real reason was of an unlawful, discriminatory nature.
5

5

502 (6th Cir. 2001) (“The Supreme Court has held in Saint Francis College that only claims of
racial, as opposed to national origin, discrimination are cognizable under § 1981.”).6
Plaintiff alleges disparate treatment because of his race and national origin in violation of
Title VII, the THRA, and Section 1981. As noted above, Plaintiff contends that his race is “Eastern
European” and his national origin is Serbia(n). The Court will address Plaintiff’s race claim first.
A. Race
Plaintiff asserts that he is of the “Eastern European” race. (Doc. No. 53 at 2-3). However,
Plaintiff does not define, identify, or explain what the “Eastern European” race is and what its
features are that make it a distinct race, although he does claim that it is different from the
Caucasian race. (Doc. No. 49 at 4). For reasons unknown, Defendant does not challenge the
characterization of “Eastern European” as a race for purposes of Section 1981. But whether a
purported race is actually a race for purposes of Section 1981 is an issue of law for the court. Vill.
of Freeport v. Barrella, 814 F.3d 594, 616 (2d Cir. 2016) (“As a matter of law, ‘Hispanic’ is a race
for purposes of § 1981”). Therefore, a court can resolve such issue even if (for whatever reason)
the defendant did not raise it, and the Court will do so here. And the undersigned simply cannot
accept the claim that “Eastern European” is a cognizable race for purposes of the antidiscrimination statutes.7

It is not lost on the Court that the concept of someone’s “race” for purposes of Section 1981 (or
Title VII) overlaps to a degree with the concept of “national origin” for purpose of Title VII. See
Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1387 n.7 (10th Cir. 1991) (“We are
cognizant, however, that often the line between national origin discrimination claims under Title
VII and racial discrimination claims under § 1981 is ‘not a bright one.’”) (quoting Saint Francis
College, 481 U.S. at 614 (Brennan, J., concurring)).
6

7

The undersigned would not be the first federal judge to decline to accept unequivocally at face
value the claim that “Eastern European” is a cognizable race for purpose of the kinds of anti6

“Title VII does not define the term ‘race.’ And, in the more than 50 years since Title VII
was enacted, the EEOC [Equal Employment Opportunity Commission] has not seen fit to issue a
regulation defining the term.” EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1026 (11th Cir.
2016). So the question naturally arises as to what is meant by “race” for purposes of Title VII. The
Court could pontificate at some length about the various different judicial takes on this issue, see,
e.g., id. at 1026-30, and then announce its take. Fortunately, it need not do so here to dispose of
Plaintiff’s claim that “Eastern European” is a race. Whatever it means to be a “race,” it is axiomatic
that the members of a “race” have personal attributes in common; that is what makes them
members of a common race.8 Courts and commentators may disagree about what particular
common personal attributes define a particular race and make persons with those attributes a
member of such race, but there can be no question that it is these commonalities that enable persons
sharing them to be classified as members of the same particular race.
The problem for Plaintiff is that he has not shown any personal attributes that members of
the “Eastern European” race would all have in common beyond the sheer geographic location of
themselves (or their ancestors). And in the Court’s view this is not nearly enough; indeed, as

discrimination statutes at issue here. In Zavalidroga v. Oneida Cty. Sheriff’s Dept., No. 6-11-CV277, 2012 WL 1068844 (N.D.N.Y. Mar. 29, 2012), the court stated that “[w]hile it is questionable
whether Eastern Europeans constitute a distinct racial group, the Court need not resolve the issue
on this motion.” Id. at *8 (citation omitted). Thus, the court accepted only arguendo “for the
purpose of [a motion to dismiss] that Eastern European heritage constitutes a ‘race’ under section
1981.” Id. at *13.
8

Courts and commentators may disagree about what kinds of common personal characteristics
should be considered in identifying a race. Is it only physical (including genetic) characteristics,
or is it also cultural characteristics? As for physical characteristics, is it only immutable physical
characteristics, or is it also mutable characteristics? But again, there is no question it is common
personal characteristics of certain kinds that place individuals into a particular “race.”
7

discussed below, the specification of this geographic location merely serves to highlight the lack
of commonality of personal attributes of persons associated with this geographic location.
One might be tempted to say that Eastern Europeans at least have in common the fact that
they are “white” and then ask whether this is sufficient for “Eastern Europeans” to be a “race” to
which Plaintiff belongs. But there are multiple problems with this. To begin with, Plaintiff does
not indicate whether, by “Eastern Europeans,” he is referring to (a) whatever denizens (of whatever
variety) happen to live now in “Eastern Europe” (whatever “Eastern Europe” means); or (b)
persons descended from the traditional or indigenous inhabitants of “Eastern Europe.” If he has
(a) in mind, then of course “Eastern Europeans” thus defined would not all have in common the
characteristic of being white; not all of today’s denizens of “Eastern Europe” (and indeed of any
large geographical region) are “white.” If Plaintiff has (b) in mind, which seems more likely given
the connotations of the word “race,” perhaps all such “Eastern Europeans” would be “white,” but
Plaintiff himself can hardly complain about being discriminated against based on being an “Eastern
European” in that sense, because he explicitly denies considering himself “white” (or
“Caucasian”); in opposing the Motion, Plaintiff quotes his own deposition for the proposition that
he “‘does not identify as Caucasian’, and does not consider himself ‘white’.” (Doc. No. 49 at 4)
(citations omitted).9 So Plaintiff is asserting that he is “Eastern European” despite not being

Plaintiff appears to attempt to directly contrast being “white” with being Serbian. (Doc. No. 49
at 4) (directly juxtaposing the notion of being “white” or “Caucasian” on the one hand with being
of “Serbian heritage” and “speaking Serbian” on the other hand). The Court is at a loss here. It is
clear in context that when Plaintiff refers to “Serbian” here, he is talking about traditional, ethnic
Serbian—and not, for example, “Serbian” in the sense of being a citizen or resident of the Republic
of Serbian as members of many ethnic groups (such as Roma) are without being traditionally,
ethnically Serbian. But there is simply no contrast between being traditionally and ethnically
Serbian and being “white” or Caucasian. Ethnic Serbs are a Slavic people, which are indeed a
9

8

“white,” which leaves the Court guessing at what kind of persons, with what common
characteristics, Plaintiff has in mind when he refers to “Eastern Europeans.” The Court simply
cannot tell and indeed cannot fathom what he possibly has in mind here.
Whatever Plaintiff’s theory of a cognizable “Eastern European” race, it was doomed to
failure. The notion of “Eastern Europe” is an ambiguous and amorphous one. Take Plaintiff’s
stated country of national origin, for example. Certainly Serbia is often said to be in “Eastern
Europe.” But there is no consensus—and certainly no authoritative or official view—on whether
Serbia is properly considered to be in “Eastern Europe,” “Southeastern Europe,” or “Central

“white” and “Caucasian” people any way one (one knowledgeable, that is, about ethnic Serbs and
the narrowest use of the terms “white” or “Caucasian”) looks at it.
The Court notes that he believes that the observations (and the facts implied) in the prior
paragraph, in addition to being in his view entirely undisputable based on his 19 months living in
Serbia, are subject to judicial notice.
The Court can only speculate as to why Plaintiff would seek to assert a non-sensical
distinction between being of “Serbian heritage” and being white (or Caucasian). Perhaps Plaintiff’s
incentive derives from case law suggesting the importance to a Section 1981 claim of the plaintiff
belonging to a non-“white” race. For example, courts have treated “Hispanic” as a race for
purposes of Section 1981 because Hispanic people are often perceived as non-white. See, e.g.,
Mojica v. Advance Auto Parts, Inc., Civ. No. 15-1418, 2016 WL 107844, at *4 (E.D. Pa. Jan. 11,
2016). And other times plaintiffs have been unsuccessful precisely because they have not alleged
(or supported with evidence, as the case may be) that they are perceived as non-white. For example,
in Dominici v. Reading Hosp./Tower Health, No. 5:18-cv-04181, 2020 WL 2898658 (E.D. Pa.
June 3, 2020), the plaintiff claimed she was discriminated against on the basis of being European
and/or Italian, but she did not allege that she was perceived as a non-white. The court found that
Section 1981 offered her no relief because she did not belong to a racial minority. Id. at *15; see
also Petrone v. Reading, 541 F. Supp. 735, 738-39 (E.D. Pa. 1982) (dismissing plaintiff's § 1981
claim, which was predicated upon his Italian heritage, because “there is no allegation that plaintiff
is generally perceived as a non-white”).
The upshot is that Plaintiff has an incentive to be non-white for purposes of Section 1981
claim in particular. And he has an incentive to be (as is undisputed anyway) of Serbian heritage
for purposes of his national-origin discrimination claims. Plaintiff (or, perhaps, maybe only his
counsel) seems not to understand that these two incentives conflict in that to be Serbian in the
traditional sense is to be “white” and “Caucasian,” even if there is some variation in the
pigmentation of skin across ethnic Serbs as a whole.
9

Europe.” Speaking more generally, although there arguably is something resembling a consensus
as to the contours of the eastern boundary of Europe (a boundary with Asia, of course)—which
would presumably include the eastern boundary of Eastern Europe—there is nothing close to a
generally recognized southern or western boundary of Eastern Europe. This is all to say that when
a race is defined in terms of “Eastern Europe,” it is defined in terms of something undefined and,
at this point, undefinable. This by itself does not mean that “Eastern European” is not a race; the
Court understands that, even for “races” that are widely recognized as races, there can be
disagreement at the metaphorical margins as to who is properly included in the race and what is
properly associated with the race. But uncertainty as to what is “Eastern Europe” certainly casts
doubt on any assertion that “Eastern European” is a definable race, especially since Plaintiff
himself ties his national origin back to a place that is by no means universally considered “Eastern
European.”
In perhaps its broadest conception, “Eastern Europe” spans from Greece in the Southwest
to the northernmost part of Russia just west of the Ural Mountains. Without question, this area not
only is geographically vast, but also encompasses a very diverse array of cultures, religions,
languages and groups of peoples (traditionally and as of today) of different general physical and
genetic characteristics. The area includes not only Greeks and Russians (as suggested above), but
Romanians and Poles also, for instance. Merely to cite these exemplary countries is to reveal the
diversity of personal characteristics involved.
Presumably, if a narrower conception of “Eastern Europe” is adopted, the diversity would
be correspondingly reduced. But Plaintiff still would have a problem under such narrower
conception because many narrower conceptions of “Eastern Europe” indisputably exclude Serbia,
thus leaving the Court to wonder what he means by “Eastern Europe.” And even the tightest “core”
10

group of Eastern European countries surely would include, for example, Poland, the Czech
Republic, and Hungary. Considerable diversity exists between inhabitants of these countries as
well.
All of these observations really are to the same effect. No matter how broadly one might
construe the notion of race, the notion of Eastern Europe is too vague, and the commonalities that
would define an “Eastern European” race are too illusory, for the Court to countenance “Eastern
European” as a race. And, as discussed above, what would appear to be perhaps the best candidate
for a genetic commonality—being white or Caucasian—cannot support Plaintiff’s theory of an
Eastern European race that includes him, because his position is that he lacks this genetic trait. For
these reasons, the Court finds as a matter of law that “Eastern European” is not a “race” for
purposes of Title VII or Section 1981.
To the extent the Court is relying sua sponte on its own rationale here (as Defendant does
not specifically contest the notion that “Eastern European” is a race), the Court perceives that it
has the authority to do so, as noted above, inasmuch as the question of whether a claimed race is
in fact a race for purposes of anti-discrimination statutes is one of law for the court. Vill. of
Freeport, 814 F.3d at 607 (“We disagree with the District Court’s ultimate decision to treat the
existence vel non of a Hispanic ‘race’ as a question of fact. The meaning of the word ‘race’ in Title
VII is, like any other question of statutory interpretation, a question of law for the court.”), quoted
in Catastrophe Mgmt. Sols., 852 F.3d at 1026. And so, as noted, the Court decides sua sponte as
a matter of law that “Eastern European” is not a race.10

10

To the extent that the Court relies herein on facts to support its legal conclusion, the facts are
rather general in nature and are, in the Court’s view, subject to judicial notice as being accurately
and readily determined from sources whose reliability cannot reasonably be questioned. See Fed.
R. Evid. 201(b)(2).
11

And even if the question of whether “Eastern European” is a race were properly considered
a question of fact, the Court believes that it could enter summary judgment based on sua sponte
resolving this question against Plaintiff. The Court has the authority to enter summary judgment
sua sponte so long as the losing party was on notice of the need to come forward with all of its
(material) evidence. See Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 105
(6th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)); see also Fed. R. Civ.
P. 56(f). Here, Plaintiff was on notice that Defendant has asserted that Plaintiff self-identified as
“white” (rather than “Eastern European”) and was in the same “protected class” as his Caucasian
supervisors. (Doc. No. 45 at 2, 6). Here, Plaintiff was on notice of the need to come forward with
evidence to show that he belonged to the “Eastern European” (rather than “white” or “Caucasian”)
race, which necessarily entails coming forward with evidence to establish that such a race exists.
Plaintiff has failed to do so.
For these reasons, Plaintiff cannot show that he was treated differently based on race for
purposes of Title VII, the THRA, or Section 1981. Because a claim under Section 1981 is based
entirely on the plaintiff’s race, Plaintiff’s Section 1981 claim will be dismissed. To the extent
Plaintiff’s Title VII and THRA claims are based upon racial discrimination, those claims will also
be dismissed.
2. National Origin
Plaintiff also asserts claims under Title VII and the THRA grounded on alleged disparate
treatment based on his national origin (Serbian). Plaintiff’s claims for national origin
discrimination will be analyzed in the same manner under Title VII and the THRA. Debra Jodry
v. Fire Door Solutions, LLC, No. 3:20-cv-00243, 2020 WL 7769924, at *3 (M.D. Tenn. Dec. 30,
2020). A plaintiff may establish employment discrimination (including that based on national
12

origin) through direct or indirect evidence. White v. Baxter Healthcare Corp., 533 F.3d 381, 391
n.5 (6th Cir. 2008).
A. Standards: Direct evidence case
Direct evidence is evidence that, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer's actions. McGee v. Food Warming
Equip., Inc., No. 3-14-cv-01776, 2017 WL 587856, at *2 (M.D. Tenn. Feb. 14, 2017). Direct
evidence is composed of only the most blatant remarks, whose intent could mean nothing other
than to discriminate on the basis of some impermissible factor. EEOC v. Publix Super Markets,
Inc., 481 F. Supp. 3d 684, 697 (M.D. Tenn. 2020). Direct evidence of discrimination does not
require a factfinder to draw any inferences in order to conclude that the challenged employment
action was motivated at least in part by prejudice against members of the protected group. Id. at
697-98. Importantly, the evidence must establish not only that the plaintiff's employer was
predisposed to discriminate on the basis of national origin, but also that the employer acted on that
predisposition. Id. at 698; see also Lovell v. Champion Car Wash, LLC, 969 F. Supp. 2d 945, 951
(M.D. Tenn. 2013) (direct evidence of discrimination does not require a factfinder to draw any
inferences in order to conclude that the challenged employment action was motivated at least in
part by prejudice against members of the protected group).
As an exceptionally clear example, hypothetical direct evidence would include testimony
that the defendant’s authorized employee told the plaintiff when terminating him [or her], “You’re
fired because we want to get rid of employees from [a particular foreign country] because we don’t

13

like people from [that country].”11 Discriminatory remarks by a person who played a meaningful
role in the challenged decision, or who had the ability to influence personnel decisions, 12 are
relevant direct evidence of discrimination. Petzel v. Redflex Traffic Sys., Inc., No. 2:12-cv-1066,
2015 WL 3409256, at *4 (S.D. Ohio May 27, 2015). And a corporate decision maker’s express
statement of a desire to remove employees in the protected group also is direct evidence of
discriminatory intent. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
If a plaintiff produces direct evidence of discrimination, the burden shifts to the defendant
to prove that it would have taken the same adverse action against the employee, “even if it had not
been motivated by impermissible discrimination.” Pendleton v. Bob Frensley Chrysler Jeep Dodge
Ram, Inc., No. 3:14 C 02325, 2016 WL 2927983, at *5 (M.D. Tenn. May 19, 2016).
B. Standards: Indirect evidence case
Indirect (or “circumstantial”) evidence, on the other hand, is proof that does not on its face
establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that
discrimination occurred. White, 533 F.3d at 392 n.5. With circumstantial evidence, the Court

11

By way of example, in actual cases, courts have found that (1) a supervisor’s alleged statement
that she chose a particular candidate in order “to maintain racial balance” constituted direct
evidence of discriminatory intent; and (2) a supervisor’s alleged statement that an Italian–
American probationary employee was a “dirty wop” and that there were too many “dirty wops”
working at the facility, constituted direct evidence of national origin discrimination. Giles v.
Wilson Cty. Bd. of Educ., No. 1:17-cv-896, 2018 WL 4680335, at *5 n.4 (M.D. Tenn. Sept. 28,
2018) (citations omitted); Brewer v. New Era, Inc., 564 F. App’x 834, 839 (6th Cir. 2014)
(statements made two months before termination decision that plaintiffs were “too old” and
“needed to retire” were direct evidence of age discrimination).
12

Comments made by individuals who are not involved in the decision-making process regarding
the adverse employment action do not—cannot, under applicable case law—constitute direct
evidence of discrimination. McKibbens v. Metro. Gov’t of Nashville & Davidson Cty., No. 3:17cv-01110, 2018 WL 6696990, at *3 n.5 (M.D. Tenn. Dec. 20, 2018).
14

applies the three-part burden-shifting framework developed in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), as modified by Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981), to determine whether the plaintiff has proffered sufficient evidence to survive
summary judgment. Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606 (6th Cir. 2019). To
succeed under the McDonnell Douglas framework, the plaintiff must first make out a prima facie
case of discrimination by a preponderance of the evidence. Id.
Under this framework, a plaintiff bears the initial burden to establish a prima facie case of
employment discrimination by demonstrating that: (1) he was a member of a protected class; (2)
he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was
replaced by a person outside the protected class or was treated differently than similarly situated,
non-protected employees. Bruce v. Meharry Med. College, No. 3:15-cv-00320, 2016 WL
5920231, at *2 (M.D. Tenn. Oct. 11, 2016).
If and when the plaintiff establishes a prima facie case, the burden shifts to the defendant
to show some legitimate, non-discriminatory explanation for its action(s). Edgar v. JAC Prod.,
Inc., 443 F.3d 501, 508 (6th Cir. 2006). The Supreme Court has prudently cautioned, given the
confusion sometimes discernible in this context, “[t]he nature of the burden that shifts to the
defendant should be understood in light of the plaintiff's ultimate and intermediate burdens.”
Burdine, 450 U.S. at 253. As the Sixth Circuit recently explained:
Establishing a prima facie case is not difficult, and it creates a “presumption that
the employer unlawfully discriminated against the employee.” Wixson v. Dowagiac
Nursing Home, 87 F.3d 164, 169 (6th Cir. 1996) (quoting [Burdine, 450 U.S. at
254]). This presumption does not shift the burden of proof, but only the burden of
producing some evidence of permissible motive. See Burdine, 450 U.S. at 256 n.8,
101 S. Ct. 1089.
Harris v. City of Akron, Ohio, 836 F. App’x 415, 419 (6th Cir. 2020).
15

Thus, as to the existence of legitimate and non-discriminatory reasons for its actions, the
defendant bears only the burden of production and not the burden of persuasion. Garren v. CVS
Rx Servs., Inc., 482 F. Supp. 3d 705, 717 (E.D. Tenn. 2020) (citing Anthony v. BTR Auto. Sealing
Sys., Inc., 339 F.3d 506, 515 (6th Cir. 2003)).13 To meet that burden of mere production, “the
defendant need not persuade the court that it was actually motivated by the proffered reason[s].”
Burdine, 450 U.S. at 254. Rather, “[i]t is sufficient if the defendant's evidence raises a genuine
issue of fact as to whether it discriminated against the plaintiff.” Id. To raise such genuine issue,
“the defendant must clearly set forth, through the introduction of admissible evidence, the reasons
for the plaintiff's rejection[, which] “must be legally sufficient to justify a judgment for the
defendant.” Id. at 255. “The defendant only has to present [evidence of] ‘clear and reasonably
specific’ reasons that will ‘frame the factual issue with sufficient clarity so that the plaintiff will
have a full and fair opportunity to demonstrate pretext.’” Harris, 836 F. App’x at 419 (quoting
Burdine, 450 U.S. at 258).14

13

As suggested herein, the ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains with the plaintiff at all times, throughout
this burden shifting. Burdine, 450 U.S. at 253; Anthony, 339 F.3d at 515. The Court keeps this in
mind, albeit with the caveat that on the instant Motion it does not sit as the trier of fact but instead
concerns itself only with what a reasonable trier of fact could (or could not) find at a hypothetical
trial based on the evidence presented on this Motion. Notably, in seeking to meet its burden, the
plaintiff cannot rely purely on mere personal belief, conjecture and speculation, because they are
insufficient to support an inference of discrimination. Garren, 482 F. Supp. 3d at 717.
14

The bracketed words added by the Court to this quote are significant; they denote the difference
between a burden (a) merely to articulate some non-discriminatory reason that supposedly
motivated the employment decision, and (b) to provide some evidence that there was a nondiscriminatory reason. Both Burdine and Harris (which, as noted was relying on Burdine) make
clear that the employer meets its burden of production only if it presents not merely some statement
of what the reason supposedly was, but rather evidence of what the reason actually was.

16

If the defendant succeeds in doing so, it rebuts the presumption of discrimination raised by
the plaintiff’s establishment of a prima facie case. See id. In that case, the burden shifts back to
the plaintiff to demonstrate that the employer's explanation is a pretext for discrimination. Burdine,
450 U.S. at 255. This resulting burden is one of persuasion, and this burden of persuasion (as to
pretext) at this stage “merges with the ultimate burden of persuading the court that she has been
the victim of intentional discrimination.” Id. at 256. In other words, once the burden has shifted
back to the plaintiff, the plaintiff must show by a preponderance of the evidence 15 that the
defendant’s reasons were not its true reasons and were instead actually a pretext for discrimination.
Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Sch., 974 F.3d 652, 661 (6th Cir. 2020). To defeat
a summary judgment motion in such circumstances, the plaintiff must produce sufficient evidence
from which the jury could reasonably reject the defendant’s explanation and infer that the
defendant intentionally discriminated against him. Braithwaite v. Tinken Co., 258 F.3d 488, 493
(6th Cir. 2001).
A plaintiff can show pretext—or, to be more precise, the first of the two components of
pretext— “by offering evidence that (1) the employer’s stated reason had no basis in fact, (2) the
stated reason did not actually motivate the employer, or (3) the stated reason was insufficient to
warrant the adverse employment action.” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 590
(6th Cir. 2014). “The three-part test need not be applied rigidly. Rather, ‘[p]retext is a
commonsense inquiry: did the employer fire the employee for the stated reason or not?’” Blizzard
v. Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580

The “preponderance of the evidence” standard applicable here is the trial standard. At the
summary judgment stage, as suggested above, the standard is modified, such that the question
becomes whether a reasonable jury could make the required finding by a preponderance.
17
15

F.3d 394, 400 n.4 (6th Cir. 2009)). “Ultimately the plaintiff must produce ‘sufficient evidence
from which a jury could reasonably reject [the employer’s] explanation of why it fired her.’”
Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (quoting Chen, 580 F.3d at 400).
If the plaintiff can do so, he meets his burden of showing that the employer’s stated reason for the
allegedly discriminatory reason was not its true reason.
But something more is required of the plaintiff. That is, the plaintiff must address the
second component of pretext, i.e., that the actual reason was discriminatory. As indicated above,
“[t]o demonstrate pretext, a plaintiff must show both that the employer’s proffered reason was not
the real reason for its action, and that the employer’s real reason was unlawful.”16 EEOC v. Ford
Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993),17 and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)).18 In

16

The required second component seems to coalesce with the required overall showing that the
plaintiff must make to meet his or her overall burden of showing unlawful discrimination.
Presumably, this is what the Supreme Court had in mind when it stated that the plaintiff’s burden
as to pretext “merges” with the plaintiff’s overarching burden as to the discrimination claim as a
whole. Burdine, 450 U.S. at 256.
One might reasonably ask whether St. Mary’s Honor Ctr., which as noted in Ford Motor Co.
required the plaintiff to show both things, effectively overruled Burdine in one respect.
Specifically, this aspect of St. Mary’s seems in tension with Burdine’s statement that the plaintiff
may meet its burden of persuasion as to pretext “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence.” Id. at 256. The dissent in St. Mary’s
certainly saw the tension. But as far as the undersigned can tell, Burdine has never been considered
to have been overruled in any respect, and certainly neither the Supreme Court nor the Sixth Circuit
has shown any compunction about citing Burdine (at least parts of Burdine other than the statement
apparently displaced by St. Mary’s as noted above) in the aftermath of St. Mary’s. The Court is
confident at the very least that the aspects of Burdine upon which the Court relies remain good law
after St. Mary’s Honor Ctr.
17

18

One might ask why it is not enough to speak simply in terms of the requirement to show that the
real reason was retaliation (the second component of pretext) without mentioning a separate
18

other words, if the burden has shifted back to the plaintiff, the plaintiff must show by a
preponderance of the evidence that the defendant’s reasons were not its true reasons and were
instead actually a pretext for retaliation. Kirilenko-Ison, 974 F.3d at 661. “To avoid summary
judgment, then, the [plaintiff] must present evidence from which a reasonable jury could find that
poor performance was not the real reason that [the defendant] terminated [the plaintiff], and that
unlawful retaliation in fact was.” Ford Motor Co., 782 F.3d at 767. In some cases, the evidence
that the defendant’s proffered reason was not the proffered reason will serve equally as evidence
that the real reason was discriminatory, and vice versa. After all, evidence may suggest that the
defendant’s proffered (non-discriminatory) reason was not the real reason precisely because it
suggests that the real reason was discriminatory; likewise, evidence may suggest that the
defendant’s proffered (non-discriminatory) reason was discriminatory precisely because it
suggests that (suspiciously) the proffered reason was not the real reason. But under Sixth Circuit
law, the Court must be mindful to require evidence of both kinds, even if it turns out to all be the
same evidence.
C. Analysis
Plaintiff asserts that during the relevant time period, the supervisors and center managers
who supervised him at UPS were Jeremy Gossett, Wayne Ramko, Billy Bruce, and Josh Peach.
(Doc. No. 49 at ¶ 8). Plaintiff alleges the following actions by his supervisors as direct evidence
of national origin discrimination: threatening to deport Plaintiff on numerous occasions in front of
Plaintiff’s co-workers (Doc. No. 54 at ¶¶ 24-25); asking Plaintiff more than once, in front of co-

requirement to show that the real reason was not the (non-retaliatory) reason proffered by
Defendant (the first component of pretext). After all, the second seems necessarily subsumed in
the first. But the Sixth Circuit has articulated these as separate requirements that each must be
satisfied, and so the Court will proceed accordingly.
19

workers, to produce his “green card” (Id. at ¶¶ 26-27); making fun of Plaintiff’s accent (Id. at ¶ 29);
and using his name in a derogatory manner by calling other drivers “Little Ivan” to insult them.
(Id. at ¶¶ 30-31). Plaintiff also asserts that Union Steward Jeremy Windrow called Plaintiff “scab,
Yankee boy, and wetback” and stated to Plaintiff that Plaintiff was “no different than a n****r
stealing white American jobs from white Americans.” Plaintiff asserts that Bruce, Plaintiff’s
supervisor, openly approved of Windrow’s comments. (Doc. No. 49 at ¶¶ 32-33).
Specifically as to Bruce, Plaintiff asserts the following as direct evidence of national origin
discrimination: commenting to another supervisor that Plaintiff had “terrorist blood” in him, that
Plaintiff had an “Arabic background,” that Plaintiff’s mother was from “Arabic or Middle Eastern
descent,” and that Plaintiff and his family were “on some terrorist watch list” (Doc. No. 54 at
¶¶ 60-62); instructing another employee to “go after” Plaintiff and harass him (Id. at ¶ 67);
laughing and “chalking it up” when he effectively made Plaintiff mad by issuing discipline to him
(Id. at ¶ 70); and asking Plaintiff if he had been drinking any “Siberian vodka” (Id. at ¶ 29). Plaintiff
argues that this evidence shows that Bruce was predisposed to discriminate on the basis of national
origin. Plaintiff also argues that Bruce acted on that predisposition in his treatment of Plaintiff.
(Doc. No. 50 at 10).
Sparing the reader his personal views about such (alleged) malevolent actions and remarks,
the undersigned will stick to the issue at hand. The applicable question is whether such actions and
remarks support a claim of discrimination based on Plaintiff’s Serbian national origin.

20

Defendant argues that Plaintiff cannot show that making threats to deport him, asking about
his “green card,” making fun of his accent,19 calling other drivers “little Ivan,” and asking him
about Siberian vodka were based on his national origin. “National origin,” for purposes of Title
VII, includes not just the country where a person was born, but, “more broadly, the country from
which his or her ancestors came.” Vega v. Vecellio & Grogan, Inc., No. 7:20-cv-00130, 2020 WL
7630709, at *3 (W.D. Va. Dec. 22, 2020) (finding Puerto Rican heritage sufficient for membership
in a protected class through the lens of race, national origin, or both) (citing Espinoza v. Farah
Mfg. Co., 414 U.S. 86, 88 (1973)).20
Title VII does not bar discrimination based on citizenship or residency. Norbuta v. Loctite
Corp., 1 F. App’x 305, 311 (6th Cir. 2001) (evidence of preference for Canadian citizens not
evidence of national origin discrimination), cited in Igwe v. Salvation Army, 790 F. App’x 28, 34
(6th Cir. 2019) (remark about green card “does not lead to an unmistakable intent to discriminate

19

The Sixth Circuit recognizes the difference between discriminatory animus motivating accentbased comments directed at an employee and situations when a plaintiff's accent affects his ability
to perform the job effectively, when criticism of English skills does not constitute unlawful
discrimination. Khalaf v. Ford Motor Co., 973 F.3d 469, 487–88 (6th Cir. 2020). The Court notes
that Plaintiff testified in his deposition that his supervisors teased him about the way he pronounced
certain words because of how he learned English at the age of three, in Canada, not because he has
a Serbian accent. (Doc. No. 49 at ¶ 29 and deposition cites therein). To be clear, Plaintiff’s point
was not that he was teased for having a Canadian accent, but he nevertheless was clear that the
teasing was based on his pronunciation of English words (e.g., pronouncing “year” without the
“y”), and not on his speaking English with a Serbian accent. Therefore, Plaintiff has admitted that
the comments about his English-speaking were not related to his asserted national origin.
“The [Equal Employment Opportunity] Commission defines national origin discrimination
broadly as including, but not limited to, the denial of equal employment opportunity because of an
individual's, or his or her ancestor's, place of origin; or because an individual has the physical,
cultural or linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1, cited in Vega,
2020 WL 7630709, at *3.
20

21

[based] upon national origin”); John v. Wal-Mart Stores East, Inc., No. 3:06-CV-138, 2007 WL
3180099, at *7 (E.D. Tenn. Oct. 26, 2007) (comments made by coworkers related only to
plaintiff’s status as an immigrant, an unprotected class, according to the Supreme Court) (citing
Espinoza, 414 U.S. 86 at 95); see also 42 U.S.C. § 2000e-2(a)(1).
Defendant argues that Bruce used the term “Little Ivan” to compare the performance issues
of other drivers to Plaintiff’s performance issues, not in regard to Plaintiff’s national origin. (Doc.
No. 49 at ¶ 30). Plaintiff contends that Bruce used the term “Little Ivan” in a discriminatory
manner, but Ivan is Plaintiff’s name, not his national origin, and Plaintiff has done nothing to
establish that Serbs are associated with being “little.”21 Moreover, the comment about “Siberian
vodka” has nothing to do with Serbia. Siberia is in northern Asia, not Eastern Europe, and is a long
way from Serbia, and Plaintiff does nothing to establish that vodka is associated with Serbia.
Despite Plaintiff’s colorable belief that Bruce was making a failed attempt to reference Serbia,22
the reference to Siberian vodka does not address Plaintiff’s national origin.23

To the contrary, the undersigned’s distinct impression is that Serbs are associated with being
what might be called “strapping.” Reported statistics back up this impression. See
https://www.insider.com/tallest-people-world-countries-ranked-2019-6 (reporting Serbia as
having the sixth-tallest people in the world, i.e., that only five nations have inhabitants with an
average height greater than the average height of Serbs) (last accessed March 30, 2021). The Court
would also add—albeit in an observation to which it does not ascribe substantial weight—that,
whether Bruce knew it or not, “Ivan” is hardly the classic or stereotypical Serbian first name, even
if it is a classic or stereotypical first name for some other nationality.
21

22

The undersigned can say from personal experience that American nationals have been known
occasionally to confuse Serbia with Siberia (and, for that matter, Syria).
23

To the contrary, there is no question at all (and a matter as to which this Court believes it could
take judicial notice) that although vodka is consumed in Serbia, (1) vodka is not specifically
associated with Serbia, and (2) the alcoholic beverage specifically associated with Serbian heritage
(and the heritage of certain neighboring countries) is instead a fruit brandy called rakija (of which
one well-known variant is slivovitz, a plum brandy).
22

In addition, Bruce’s alleged comments to another supervisor that Plaintiff had “terrorist
blood” in him, that Plaintiff had an “Arabic background,” that Plaintiff’s mother was from “Arabic
or Middle Eastern descent,”24 and that Plaintiff and his family were “on some terrorist watch list”
(Doc. No. 54 at ¶¶ 60-62) could not reasonably be interpreted as relating to his national origin
(Serbia). As alleged slurs against someone of Serbian national origin, these alleged “slurs” are
totally misguided.
A reader who is informed about the history of the Serbian people generally may be
perplexed by such alleged comments, as they make jabs that simply make no sense—are totally
inapplicable—to the Serbian people as a whole. The Court believes that the following facts are
undisputable (and would be subject to judicial notice): (1) as with so many peoples around the
world, there is diversity within the Serbian people (also known as and referred to herein
collectively as “Serbs”), but traditionally and ethnically Serbian people as a group have an
identifiable history, geography, and culture; (2) historically, Serbs have had a good deal of contact
with persons of Middle Eastern origin, but historically these were primarily Ottoman Turks, who
were not “Arabic” people; (3) Serbs as a group are absolutely not considered “Middle Eastern” or
“Arabic;” (4) the traditional religion of Serbs is overwhelmingly Orthodox Christian, as practiced
by the Serbian Orthodox Church; (5) Serbs are not, and never have been, associated with terrorism,

Notably, Plaintiff’s national origin claim is not premised in any way on the allegation that he is
perceived as being “Arabic" or “Middle Eastern” and was subject to discrimination based on that
perception. Instead, he claims only that he is actually Serbian and was subject to discrimination on
that basis.
24

23

let alone terrorism of Middle Eastern origin;25 and (6) the Serbian language (with its unique use of
two different alternative alphabets, neither of which is remotely similar to the Arabic alphabet) is
entirely distinct from the Arabic language. The Court realizes that these observations do not
necessarily apply to any particular Serb (including Plaintiff), but they are true of Serbs in general,
historically. Given this history, the alleged comments about Arabic or Middle Eastern descent,
terrorists, and Siberian vodka simply would not implicate Serbian nationality.26
The same is true for Jeremy Windrow’s alleged comments, based on what the Court
believes to be indisputable connotations of the words allegedly used by Windrow. “Scab” appears
to be a clear (albeit, in this context, apparently misplaced) reference to a strikebreaker—a worker
who crosses a picket line in the midst of a strike. The term has nothing to do with any particular
nationality, let alone Serbian nationality. “Yankee” is a term associated with Americans generally
or, alternatively, with Americans from northern states specifically; to say that the term has nothing
to do with Serbian nationality would be an understatement. The term “wetback” is a slur referring
to persons who illegally enter the United States from Mexico by crossing (swimming across) the
Rio Grande River. It is certainly not associated with Serbs generally, nor with the subset
(presumably a very tiny one) of Serbs who enter the United States illegally; to the extent that
“wetback” tends to refer to immigrants of a particular nationality, it is certainly not Serbian

25

War crimes, which are easily distinguishable from terrorism, is another matter. Based on
numerous war crimes convictions of Serbs arising out of the Balkans War of the 1990s, issued by
both various national (including Serbian) courts and the International Criminal Tribunal for the
former Yugoslavia (based in The Hague, Netherlands), Serbs may be associated (fairly or unfairly)
to an extent with war crimes—but not terrorism.
26

Defendant points out this disconnect to some extent (Doc. No. 53 at 3) but not to the degree that
the Court has.
24

immigrants. Finally, the alleged equation of Plaintiff with the N-word, based on his stealing jobs
from white Americans, likewise has nothing to do with Serbian nationality; neither the N-word,
nor (as discussed above) being something other than white are associated with Serbian nationality,
and relatedly any complaint about persons stealing jobs from “white Americans” is by no means a
complaint about Serbs in particular.
From the Court’s research, it appears that there is a dearth of authority regarding whether
a claim of national origin discrimination can be premised on slurs that are simply misguided.27But
this need not trouble the Court, because Plaintiff has not even argued that the slurs against him
were misguided attempts to refer to Serbs in a negative light. The Court is left with merely a
scattered series of insults directed in various directions (including Siberia and the Middle East) but
not once actually at Serbia (or Serbs).
Moreover, the Court notes that threats to deport Plaintiff or questions about his green card
were obviously not actual threats because Plaintiff is and was a United States citizen. Also,
encouraging another supervisor to “go after” Plaintiff and harass him is not, in and of itself, a
national origin-based comment; neither is “chalking it up” or laughing when Bruce made Plaintiff
mad by issuing discipline to him. Finally, the alleged comment by the Union Steward about taking

27

There is authority on the issue of whether a claim of national origin discrimination can be
premised on others’ misguided belief that the plaintiff belongs to a particular national origin when
in fact he or she does not. Some authority suggests that the answer is yes—i.e., that the claim can
be premised on the plaintiff being “perceived as” (rather than actually) having a particular national
origin. But Plaintiff makes no “perceived as” claim; he claims only that he is of Serbian national
origin and was (correctly) perceived that way. Any misperceptions implicated in this case are of a
different case—i.e., as noted, misperceptions about the nature of Serbs and Serbia.

25

jobs away from “white Americans” has nothing to do with Plaintiff’s national origin of Serbia,
since Serbs are also “white.”
The Court finds that these alleged comments and threats are not related to Plaintiff’s
asserted national origin, Serbian. Therefore, they cannot be direct evidence of discrimination for
purposes of Plaintiff’s Title VII and THRA claims based on national origin.28
For purposes of a circumstantial evidence claim, Defendant does not dispute the existence
of the first two elements, i.e., that Plaintiff’s asserted national origin is a protected class or that
Plaintiff was qualified for the position he held with Defendant. Plaintiff asserts that Defendant
subjected him to adverse employment actions via over-supervising him, issuing excessive and
unwarranted disciplinary actions against him, giving him difficult workloads, and terminating his
employment. Defendant argues that unwarranted discipline, over-supervision, and difficult
workloads are not adverse employment actions.
Generally speaking, neither increased surveillance nor discipline, whether warranted or
not, constitutes a material adverse change in the terms of employment in the discrimination context
because those actions do not constitute a significant change in employment status as do things such
as firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits. Rim v. Lab. Mgmt. Consultants, Inc., No. 3:18-cv-00911,
2019 WL 5898633, at *10 (M.D. Tenn. Nov. 12, 2019). The Sixth Circuit has never held that
temporarily increasing an employee's workload is a materially adverse employment action. Courts
v. Correct Care Sols., LLC, No. 3:17-cv-00944, 2019 WL 3425892, at *5 (M.D. Tenn. July 30,

28

The Court also notes that Plaintiff has failed to show that these remarks were made in connection
with the alleged adverse employment actions. “The context in which the comments are made is
also critical. Discriminatory remarks made while implementing an adverse employment action are
likely to reveal animus.” Erwin v. Potter, 79 F. App’x 893, 898 (6th Cir. 2003).
26

2019). Conduct that does not amount to a materially adverse employment action includes close
supervision and written warnings. Andrews v. Lockheed Martin Energy Sys., Inc., No. 3:06-CV42, 2006 WL 2711818, at *11 (E.D. Tenn. Sept. 21, 2006); Johnson v. United Parcel Serv., Inc.,
117 F. App’x 444, 451 (6th Cir. 2004) (close supervision); Williams v. AP Parts, Inc., 252 F. Supp.
2d 495, 498 (N.D. Ohio 2003) (written warnings).29
Discipline can constitute an adverse employment action if it effects a “materially adverse
change in the terms and conditions of [plaintiff’s] employment.” Williams, 252 F. Supp. 2d at 49798. Plaintiff argues that the “warning letters” he received served as a foundation to issue intent-todischarge letters under the “progressive discipline” provisions of his collective bargaining
agreement (“CBA”). (Doc. No. 50 at 17, n.7). Defendant has represented that a May 23, 2017
warning letter issued to Plaintiff for failure to treat a supervisor (Ramko) with dignity and respect
“served as the first step in the progressive discipline process under the CBA for the later issuance
of an intent-to-discharge letter on July 13, 2017 for refusal to obey a direct instruction.”30 (Doc.
No. 49 at ¶ 13). Defendant also contends that the July 13, 2017 intent-to-discharge letter served as
the prerequisite for Bruce to serve the July 17, 2017 intent-to-discharge letter that resulted in
Plaintiff’s termination. (Doc. No. 54 at ¶ 85).

The Court notes that the Williams court did state that “disciplinary write-ups” can be adverse
employment actions when they affect an employee’s opportunity for promotion and pay raises or
place the employee on probation. Williams, 252 F. Supp. 2d at 498.
29

30

According to Defendant, the July 13, 2017 intent-to-discharge letter was never acted upon
because the July 17, 2017 intent-to-discharge letter resulted in Plaintiff’s termination. (Doc. No.
49 at ¶ 13).

27

The Court agrees that the alleged over-supervision and difficult workloads are not adverse
employment actions for purposes of Plaintiff’s discrimination claims.31 Plaintiff has demonstrated
a genuine issue of material fact, however, as to whether the warning letters and intent-to-discharge
letters, as part of Defendant’s progressive discipline process, constituted adverse employment
actions, 32 and Plaintiff’s termination was certainly an adverse employment action.
With regard to his termination, Defendant contends that Plaintiff cannot show that similarly
situated, non-Serbian employees were treated differently.33 Defendant argues that Plaintiff has not
shown that any non-Serbian driver failed, in a similar manner, to treat his or her supervisor with
dignity and respect and yet was not terminated. Defendant admits, however, that Plaintiff is the
only package car driver at UPS’s Murfreesboro Center to ever lose his job for “failure to treat a

31

In its Reply, Defendant argues that Plaintiff waived his excessive workload and over-supervision
claims by not raising them or sufficiently arguing them in his response to the Motion. (Doc. No.
53 at n. 11). The Court need not address this argument, because it does not view these alleged
actions as representing adverse employment actions. As for excessive discipline, Plaintiff did
address that claim in his response. (Doc. No. 50 at 17, n.7).
32

Supervisor Ramko explained in his deposition that the May 23, 2017 warning letter was used in
Defendant’s “line of progressive discipline” as a foundation for the termination of Plaintiff’s
employment. (Doc. No. 48-6 at 40 [Dep. at 160]). The May 23rd warning letter states that it is
“official notice that further instances of your failure to treat your supervisor with dignity and
respect will result in further disciplinary action up to or including discharge.” (Doc. No. 43-5; Doc.
No. 48-5 at 44 [Dep. at 174]). As noted above, Defendant has stated that the July 13, 2017 intentto-discharge letter served as the prerequisite for Bruce to serve the July 17, 2017 intent-todischarge letter, which was the letter that resulted in Plaintiff’s termination. (Doc. No. 54 at ¶ 85).
There is at least a genuine question of fact as to whether these warning letters and intent-todischarge notices essentially “built upon” each other and led to Plaintiff’s firing.
33

Plaintiff does not argue that he was replaced by someone outside the protected class. (Doc. No.
49 at ¶ 57).

28

supervisor with dignity and respect.”34 Plaintiff points to the case of Josh Johnson, a non-Serbian
package car driver; according to Plaintiff, Johnson “cussed, yelled at, and verbally and physically
threatened Ramko (a supervisor) on one particular occasion, such that the two men had to be
“broken up” before they got into a fight, and yet never received any type of discipline, let alone
termination. (Doc. No. 54 at ¶ 86).35 Plaintiff has carried his burden to show that there are genuine
issues of material fact as to whether similarly situated employees outside the protected national
origin class were treated differently in terms of discipline and termination, and thus for summary
judgment purposes, he has successfully established his prima facie case as to the alleged
discriminatory acts of unwarranted and excessive discipline and termination.36
Defendant also asserts that even if (as the Court has found) Plaintiff could establish a prima
facie case of discrimination, he has not provided any evidence of pretext. As noted, Plaintiff has
no obligation to show pretext unless Defendant first shows a legitimate, non-discriminatory reason

34

Although Defendant asserts that non-protected employees were disciplined for failure to treat
supervisors with respect, it admits that Plaintiff is the only employee who was terminated for that
behavior. (Doc. No. 54 at ¶¶ 52-53).
35

Defendant reserved the right to challenge these facts at trial but did not dispute them for purposes
of summary judgment. (Doc. No. 54 at ¶ 86).
36

Defendant claims that Plaintiff failed to file a grievance disputing his termination within the tenday period allowed by his applicable collective bargaining agreement and that was the reason his
termination became permanent. There are multiple issues of fact with regard to the final intent-todischarge letter issued to Plaintiff, including whether Plaintiff was ever served with the corrected
copy (the parties do not dispute that the initial letter was issued on July 17, 2017, but it was dated
July 13, 2017) and whether Plaintiff appropriately grieved the intent-to-discharge letter that
resulted in his termination. (Doc. No. 49 at ¶¶ 41-45, 48; Doc. No. 48-1 at 40-41, 65 [Dep. at 150155 and 251-252]; Doc. No. 49-1 at 7 (“The notice was never protested by the grievant because
he, nor the steward received a copy from the Company.”)). The factfinder here will have to
determine any relevant facts surrounding this issue.

29

for its actions. Defendant’s articulated reason for terminating Plaintiff’s employment was that he
failed to treat his supervisors with dignity and respect by sending Supervisors Woodruff and Peach
an offensive text message on July 14, 2017.37 That text specifically stated:
Hey, man, when you go to church Sunday please stand in front of your congregation
and tell them how you robbed a man of his family time today & tell them that 2
drivers had heat stroke but the next day you put 215 stops on a driver & made him
go back out to do more work! Please do that for me Sunday & tell me what they
say. One day we will all stand in front of God & his holy son & have to answer for
everything, big & small. Please let me know what your church tells you! God bless.
(Doc. No. 49 at ¶ 38). It is no exaggeration to say that a reasonable employer could take this text
as conveying an accusation that its supervisors had committed an egregious and mortal sin. A
reasonable employer could determine, entirely irrespective of the employee’s membership in a
protected class, that the employee’s sending of such a text was intolerable and grounds for
termination. The Court finds without difficulty that (i) the proffered reason is legitimate and not
discriminatory; and (ii) Defendant has presented evidence sufficient to support a finding that this
proffered legitimate reason was the actual reason. Thus, burden shifts to Plaintiff to show that the
proffered reason actually was a pretext.
In summary, as the Court has indicated above, the alleged discriminatory comments by
Plaintiff’s supervisors here were not based upon Plaintiff’s national origin, and Plaintiff has not
come forward with any additional evidence of discriminatory motive based upon national origin.
Therefore, the Court finds that Plaintiff has not demonstrated a genuine issue of material fact as to
whether Defendant’s legitimate, non-discriminatory reason was pretext for national origin

37

The text was sent after Plaintiff allegedly had an excessive workload and requested help from
both Woodruff and Peach, who did not provide that help, and Plaintiff completed his delivery route
late. (Doc. No. 49 at ¶ 37).
30

discrimination, neither has he shown that the real reason for Defendant’s actions was his national
origin. Therefore, Defendant is entitled to summary judgment on Plaintiff’s Title VII and THRA
national origin discrimination claims, and those claims will be dismissed.38
HOSTILE WORK ENVIRONMENT
Plaintiff’s hostile work environment claim is based upon Title VII race and national origin.
See Complaint (Doc. No. 1) at Count II. Because the Court has found no valid Title VII claim
based upon race and no discriminatory comments based upon national origin, Plaintiff’s hostile
work environment claim based upon these two protected classifications also fails.
Therefore, Defendant’s Motion will be granted as to Plaintiff’s hostile work environment
claim, and that claim will be dismissed.
RETALIATION
1. Direct Evidence
For a plaintiff to prevail under a theory of direct evidence of retaliation, he would have to
show both “blatant remarks” revealing the defendant’s retaliatory intent and that the retaliatory
intent was a motivating factor in the defendant’s adverse employment action toward him.
Mansfield v. City of Murfreesboro, 706 F. App’x 231, 235–36 (6th Cir. 2017). As indicated above,
direct evidence is evidence that, if believed, requires the conclusion that unlawful discrimination
(or, here, retaliation) was at least a motivating factor in the employer's actions. McGee, 2017 WL
587856, at *2. Direct evidence is composed of only the most blatant remarks, whose intent could
mean nothing other than to discriminate (or retaliate) on the basis of some impermissible factor.

Ultimately, then, what doomed Plaintiff’s prospects on his direct-evidence case (the fact that
Plaintiff did not demonstrate animus based on his national origin) is what doomed his indirectevidence case, albeit only at the last stage of the analysis of his indirect-evidence case.
31
38

Publix, 481 F. Supp. 3d at 697. Direct evidence does not require a factfinder to draw any inferences
in order to conclude that the challenged employment action was motivated at least in part by
discrimination or retaliation. Id.at 697-98. Importantly, the evidence must establish not only that
the plaintiff’s employer was predisposed to discriminate (retaliate), but also that the employer
acted on that predisposition. Id. at 698.
Plaintiff asserts that the following alleged remarks of Bruce are direct evidence of Bruce’s
retaliatory animus39 towards him: stating to other managers that he was “going to figure out a way
to get Ivan Kostic fired” and “we have to find a way to get [Ivan Kostic] gone” (Doc. No. 54 at
¶¶ 65-66); stating that he was “going to get Ivan back for filing grievances and calling the 800 line
on [Bruce]” (Id. at 64); and calling Gossett using the speaker phone after he fired Plaintiff and
saying “We got him!” (Id. at ¶ 132).40 Defendant has agreed to treat as undisputed, for purposes
of summary judgment, Plaintiff’s claim that Bruce in fact made these remarks. Bruce was the
supervisor who issued the intent-to-discharge letter that led to Plaintiff’s termination. (Doc. No.
54 at ¶ 110).
The Court finds that these remarks constitute direct evidence of retaliation by Bruce
because they require the drawing of no inferences to reach the conclusion that Bruce wished to

Courts use the word “retaliation” interchangeably with “discrimination” with respect to direct
evidence standards. In other words, in the context of a claim of retaliation, retaliation is covered
by the broader term, “discrimination.” For example, in Weigel v. Baptist Hosp. of E. Tenn., 302
F.3d 367, 383 (6th Cir. 2002), the court stated: “We conclude that Ensworth's deposition comments
do not constitute direct evidence of retaliation. When determining whether proffered evidence
constitutes direct evidence of discrimination, we consider whether the evidence, if believed,
compels the conclusion that retaliatory animus played a part in the challenged decision.”
39

40

Defendant did not dispute these facts for purposes of summary judgment but reserved the right
to challenge them if the case proceeds to trial. (Doc. No. 54 at ¶¶ 64-66 and 132).
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retaliate against Plaintiff for complaining about alleged violations of Title VII. In particular,
Bruce’s statement that he was going to find a way to get Plaintiff back for filing grievances and
calling the 800 line (hereinafter, “primary statement”) directly reflects an intent to retaliate. If the
factfinder were to find that Bruce actually made the primary statement (and meant what he said),
the primary statement requires a conclusion by the factfinder that retaliation was at least a
“motivating factor” for Bruce’s actions. So the primary statement constitutes direct evidence, and
the other statements referenced above are also direct evidence insofar as they tend to show that, as
indicated by the primary statement, Bruce indeed desired to terminate Plaintiff (based on what that
primary statement suggests was retaliatory animus). At a minimum, these statements successfully
demonstrate a genuine issue of material fact as to whether Bruce’s decision to fire Plaintiff was
based on a desire to retaliate against Plaintiff for his many grievances.41 The Court finds that the
alleged statements by Bruce qualify as “direct evidence” of retaliation.
Defendant argues that these statements cannot serve as direct evidence of discrimination
because they were not made in connection with Plaintiff’s termination or any disciplinary action.
In other words, though all of these statements plainly refer to desired or potential termination of
Plaintiff at some point, Defendant claims they were not connected with the actual termination or
discipline of Plaintiff that eventually occurred at particular junctures. Defendant relies on the
accepted principle that statements and facts unrelated to the decisional process itself are generally
not probative of discrimination. Allen v. Braithwaite, No. 2:18-cv-02778, 2020 WL 3977671, at

41

Defendant does not dispute, for purposes of summary judgment, that it was aware that Plaintiff
filed at least 40 grievances from 2014 through 2017 claiming harassment and discrimination in the
workplace. Defendant also does not dispute that Plaintiff made six phone calls to Defendant’s
Human Resources 800 line claiming harassment and discrimination directed at him by Bruce plus
three such phone calls claiming retaliation by Bruce. (Doc. No. 54 at ¶¶ 165, 168-69).
33

*8 (W.D. Tenn. July 14, 2020). The person (other than Plaintiff) who testified about Bruce making
these allegedly retaliatory statements is Joshua James, a package center supervisor for Defendant.
As reflected by his deposition transcript (Doc. No. 48-3), James testified about many derogatory
things he heard Bruce say about Plaintiff, including the above-referenced statements that Plaintiff
asserts are direct evidence of retaliation. James agreed that Bruce made these statements in the
weeks and days leading up to August 2017 (the month Plaintiff was fired). (Dep. at 38). Although
there may be questions of fact as to exactly how closely related (in time or otherwise) the alleged
retaliatory comments were to the relevant intent-to-discharge letters and Plaintiff’s termination,
the Court finds that they were sufficiently close for purposes of being direct evidence of Bruce’s
retaliatory motive.
Here, the Court finds that a jury reasonably could believe this direct evidence of Bruce’s
retaliatory animus. As Plaintiff’s supervisor, Bruce was the decision-maker who terminated his
employment with Defendant. Plaintiff has presented direct evidence of retaliation, and the burden
shifts to Defendant to prove that it would have terminated Plaintiff even if it had not been
motivated by retaliation.42 As the summary judgment movant, Defendant could not obtain
summary judgment unless its proof was so strong that a jury would have to accept that the
termination in fact was for some other reason. Defendant does not even try to meet that very heavy
burden with regard to Plaintiff’s direct-evidence retaliation theory; Defendant argues simply that
Plaintiff has no direct evidence of retaliation, without alternatively addressing whether Defendant
would have terminated Plaintiff anyway—a question that will fall to the jury to answer (if the jury

42

If a plaintiff produces direct evidence of discrimination, the burden shifts to the defendant to
prove that it would have taken the same adverse action against the employee, “even if it had not
been motivated by impermissible discrimination.” Pendleton, 2016 WL 2927983, at *5.
34

gets that far, by crediting Plaintiff’s direct evidence). Where a plaintiff produces credible direct
evidence of retaliation, “in the absence of an alternative, non-discriminatory explanation for that
evidence, there exists a genuine issue of material fact suitable for submission to the jury without
further analysis by the court.” Norbuta, 1 F. App’x at 311–12.
3. Circumstantial Evidence
Alternatively, even if not direct evidence of retaliation, the above-described retaliatory
comments are sufficient circumstantial evidence of retaliation to raise genuine issues of material
fact. To state a retaliation claim based on circumstantial evidence, a plaintiff must allege plausible
facts that: (1) he engaged in protected conduct;43 (2) the defendant had knowledge of this protected
activity; (3) the defendant thereafter took an employment action adverse to the plaintiff; and (4)
there was a causal connection between the protected activity and the adverse employment action.
Shallenberger v. CoreCivic-Trousdale Turner Corr. Ctr., No. 3:19-cv-00900, 2020 WL 869984,
at *4 (M.D. Tenn. Feb. 21, 2020).
To demonstrate the third requirement, a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, which in the Title VII retaliation
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination. Jones v. Vilsack, No. 3:15-cv-01006, 2020 WL 3264085, at *6 (M.D.
Tenn. June 17, 2020). This requirement is different from, and less onerous than, the requirement
for showing a materially adverse action in the Title VII discrimination context. Id. In particular,
unlike Title VII’s anti-discrimination provision, the anti-retaliation provision of Title VII is not

Protected conduct includes “oppos[ing] any practice made an unlawful employment practice by
[Title VII],” or “ma[king] a charge, testif[ying], assist[ing] or participat[ing] in any manner in an
investigation, proceeding, or hearing under [Title VII].” 28 U.S.C. § 2000e–3(a).
43

35

limited to discriminatory actions that affect the terms and conditions of employment. Id. (citing
Rogers v. Henry Ford Health Syst., 897 F.3d 763, 775-76 (6th Cir. 2018)).
It is undisputed that Plaintiff engaged in at least some protected activity and that Defendant
knew about such protected activity (although Defendant minimizes the amount of protected
activity, as discussed below).44 It is also undisputed that Defendant issued intent-to-discharge
letters and ultimately fired Plaintiff, which are materially adverse employment actions in the antiretaliation context, inasmuch as a reasonable employee might forego making a charge of
discrimination in order to avoid them. In addition, as discussed below, Plaintiff asserts materially
adverse, post-employment, retaliatory actions taken by Defendant against him. For purposes of the
Motion, the only element actually in dispute is the fourth, whether there was a causal connection
between Plaintiff’s protected activity and his termination.
A plaintiff making a retaliation claim under Title VII must establish that his or her protected
activity was a but-for cause of the alleged adverse action by the employer. Robinson v. MGM
Grand Detroit, LLC, 821 F. App’x 522, 528 (6th Cir. 2020). Plaintiff may show a “but for” cause
sufficient for opposing a motion for summary judgment by producing “sufficient evidence from
which an inference could be drawn that the adverse action would not have been taken had plaintiff
not [engaged in protected activity].” Rizzo v. Wilkie, Civ. No. 17-95-DLB-CJS, 2020 WL 6947480,
at *7 (E.D. Ky. Nov. 25, 2020) (quoting Nguyen, 229 F.3d at 563). At the prima facie stage, this
burden “is not onerous,” and can be met through evidence that the defendant treated the plaintiff

As noted above, Defendant does not dispute that from 2014 through Plaintiff’s termination,
Plaintiff filed 40 grievances and called the HR 800 line to voice harassment and discrimination
directed to him by Billy Bruce specifically in the workplace on at least six separate occasions.
(Doc. No. 48-11 at 14).
44

36

differently from similarly situated employees or that the adverse action was taken shortly after the
plaintiff's exercise of protected rights. George v. Youngstown State Univ., 966 F.3d 446, 459 (6th
Cir. 2020).
Seeking to limit Plaintiff’s option for drawing a connection between protected activity and
adverse action, Defendant argues that the only grievance that qualified as protected activity in this
case is the May 3, 2017 grievance, which alleged that Plaintiff was made fun of, bothered, harassed
and discriminated against by Billy Bruce “for the way I talk & because of the country I come
from.” (Doc. No. 49-9).45 That grievance also included the statement “it sucks to be an immigrant
at UPS!” (Id.) Plaintiff has also provided evidence, however, that he filed a grievance on July 6,
2017 (11 days before his termination) that stated: “Bill Bruce continues to harass & humiliate me
in front of hourly’s because of a skin condition I have & because I’m an immigrant. I want Bill
Bruce to be terminated for racism & discrimination before I go to channel 4 news to let people
know what immigrants go through at UPS!” (Doc. No. 49-13).46
Plaintiff also filed a grievance on June 2, 2016 (Doc. No. 49-21) that stated “I am
continuously being harassed by Billy Bruce because of my workers comp injury & because of my

45

Two weeks later, Bruce sent a letter to his supervisors (including the Division Manager)
complaining that Plaintiff was “erratic and unstable” and “continuously causes problems at work
and acts in a paranoid manner.” Bruce stated: “It is my genuine belief that he could be a danger to
himself and others. What can we do?” (Doc. No. 54 at ¶ 75).
On July 13, 2017, Bruce sent an email to Defendant’s Human Resources Operations Manager,
Division Manager, and Communications Supervisor about Plaintiff’s July 6th grievance, leaving
out the part about Bruce’s harassment and humiliation of Plaintiff and Plaintiff wanting Bruce
fired and, instead, focusing on the part about Plaintiff contacting Channel 4 news. (Doc. No. 54 at
¶ 88). Also on July 13, 2017, Bruce issued an intent-to-discharge letter to Plaintiff, based upon
Plaintiff’s alleged failure to obey an instruction from a supervisor (Woodruff) and for allegedly
calling Woodruff “stupid.” (Doc. No. 49 at ¶ 13; Doc. No. 43-11).
46

37

nationality & because I’m on the 9.5 list. I want UPS, HR & Labor management to take all this
harassment by Billy very serious & move Billy out of M’boro!” (Id.).
In addition, Plaintiff asserts that Defendant continued to take retaliatory actions against
him, even after he was fired (on August 25, 2017), when Defendant’s security supervisor called
911 emergency dispatch and reported that Plaintiff had made threats and “had weapons on him.”47
This call resulted in two officers being dispatched to Plaintiff’s home. (Doc. No. 54 at ¶¶ 134,
138). The officers found nothing—including weapons—to support the allegations made in the 911
emergency call. (Id. at ¶¶ 143-44). Defendant admits these facts, for purposes of summary
judgment, as well as admitting that the dispatched officer stated, “These were serious accusations”
made against Plaintiff and the investigation revealed “nothing that showed any kind of harm or
hurt to himself or anybody else.” (Id. at ¶ 147). 48
Both the Supreme Court and the Sixth Circuit have recognized that former employees are
protected against retaliation under Title VII. See Downs v. United States Postal Serv., No. 3:19cv-00057-RGJ, 2019 WL 3947921, at *4 (W.D. Ky. Aug. 21, 2019) (citing Robinson v. Shell Oil
Co., 519 U.S. 337, 339 (1997) and EEOC v. Ohio Edison Co., 7 F.3d 541, 544 (6th Cir. 1992)). In
EEOC v. Outback Steakhouse of Florida, Inc., 75 F. Supp. 2d 756 (N.D. Ohio 1999), the court
held that the anti-retaliation provision of Title VII is not limited to retaliation affecting

47

Plaintiff asserts, and Defendant does not dispute for purposes of this Motion, that someone
(whose name escaped Davis) was standing next to Davis and feeding him information about
Plaintiff while Davis was speaking with 911 dispatch on that day. (Doc. No. 54 at ¶ 136).
48

Defendant argues that Plaintiff has waived any claim based on post-employment actions by
failing to cite them in his response. Plaintiff cited these allegations in his Statement of Undisputed
Facts, however, and they are further alleged evidence of retaliation, and the Court will consider
this evidence for purposes of summary judgment.

38

employment terms but may include other forms of retaliation that are allegedly adverse to the
employee or former employee. Id. at 758. The court concluded that the kind of discrimination
prohibited by the anti-retaliation statute cannot be limited simply to a change in employment status.
Id.49 While the Sixth Circuit has not addressed this precise issue, the majority of courts, including
the Supreme Court, have been willing to construe Title VII (and companion provisions under the
Fair Labor Standards Act and the ADEA) broadly in order not to frustrate the purpose of these
Acts, which is to prevent employers from inducing aggrieved employees “quietly to accept
[unlawful] conditions” due to “fear of economic retaliation.” See Mitchell v. Robert DeMarco
Jewelry, Inc., 361 U.S. 288, 292 (1960); Ohio Edison, 7 F.3d at 544-45.50 This Court is persuaded
by the foregoing analysis and, like the court in Outback Steakhouse, concludes that the antiretaliation provisions of Title VII and the THRA cannot be exclusively limited to adverse actions
that effect changes in the employment relationship.

“The reasoning for this is simple: nothing in the plain language of the statute admits of such a
qualification, and there is nothing in the statute which the court finds ambiguous. Title VII states
that employers cannot discriminate against employees in retaliation for employees' participation
in claims brought under the statute.” Outback, 75 F. Supp. 2d at 758. Furthermore, the court
reasoned that, although the substantive provisions of Title VII clearly limited actionable
discrimination to claims that are related to employment, the anti-retaliation provision “contains no
such qualifiers, prohibiting only discrimination that takes place because an employee has ‘made a
charge, testified, assisted, or participated’ in actions under Title VII. The inclusion of qualifying
language in Title VII’s substantive provision, and its exclusion in the anti-retaliation provision,
implies that a retaliatory act need not be employment-related in order to be actionable under Title
VII.” Id.
49

50

The Court notes that very recently, the Sixth Circuit reiterated the principle that excluding former
employees from the protections of Title VII would “effectively vitiate much of the protection
afforded by [the statute]” because it would deter reporting to the government and “provide a
perverse incentive for employers to fire employees who might bring Title VII claims.” United
States ex rel. Felten v. William Beaumont Hosp., No. 20-1002, slip. op. at 9 (6th Cir. Mar.31,
2021).
39

Moreover, Title VII’s anti-retaliation provision, unlike its anti-discrimination provision, is
not limited to discriminatory actions that affect the terms and conditions of employment. Jones,
2020 WL 3264085, at *6. Again, to demonstrate a materially adverse employment action for
purposes of a retaliation claim, a plaintiff must show that the challenged action well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination or retaliation;
obviously, this persuasive effect can be imparted by actions unrelated to the terms and conditions
of employment as such. Id. In short, in the retaliation context, an employer’s materially adverse
action need not be an employment action (as opposed to an action post-dating employment or
otherwise unrelated to employment).
Therefore, the evidence of Defendant’s post-employment activity, calling the 911
Emergency Dispatch to send officers to Plaintiff’s home, can be considered as part of the alleged
retaliation by Defendant. The Court finds that, taken together, the above-cited evidence creates
genuine issues of material fact as to the connection between Plaintiff’s grievances and the adverse
employment actions against him.
Consequently, the burden of proof shifts to Defendant to articulate a legitimate,
nondiscriminatory reason for its decisions and, if it does so, the burden shifts back to Plaintiff to
show pretext. As set forth earlier, Defendant has articulated a legitimate, non-discriminatory
reason for firing Plaintiff: his (alleged) failure to treat his supervisors with dignity and respect. The
burden thus shifts to Plaintiff to show pretext.
The Court will not restate the legal framework for pretext, as it is carefully delineated above
(with regard to discrimination), other than to note that case law reflects the applicability of the
same principles in the context of a retaliation claim. E.g., Kirilenko-Ison, 974 F.3d at 661. Thus,
at the summary judgment stage, a plaintiff must show sufficient evidence from which a reasonable
40

jury could conclude that the stated reason was the not true reason, and that instead unlawful
retaliation actually was.51
Given the totality of all this evidence, including the alleged remarks showing retaliatory
animus and the intent-to-discharge letters52 issued in close temporal connection with Plaintiff’s
grievances, Plaintiff has sufficiently demonstrated a genuine issue of material fact as to whether
Defendant’s reason for firing him was pretext for retaliation i.e., a false reason stated in lieu of an
actual retaliatory reason. The Court has found that Plaintiff submitted direct evidence of retaliation
sufficient to take this claim to a jury; but alternatively, he has carried his burden as to circumstantial
evidence on his retaliation claim, for purposes of summary judgment, and Defendant’s motion
related to Plaintiff’s retaliation claim will be denied.
CONCLUSION
For the reasons set forth herein, Defendant’s Motion for Summary Judgment (Doc. No. 43)
will be granted in part and denied in part. Summary judgment is granted to Defendant as to
Plaintiff’s claims under Section 1981, Plaintiff’s claims under Title VII and the THRA for racial
and national origin discrimination, and Plaintiff’s Title VII hostile work environment claim based
upon race and national origin. Summary judgment is denied as to Plaintiff’s claim for retaliation,
and that claim remains for trial.

In a Family and Medical Leave Act retaliation case, the Sixth Circuit has stated: “The central
issue raised by the retaliation theory . . . is ‘whether the employer took the adverse action because
of a prohibited reason or for a legitimate nondiscriminatory reason.’” Seeger v. Cincinnati Bell
Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012).
51

Bruce issued another intent-to-discharge letter, after the one upon which Plaintiff’s termination
was based, on August 1, 2017, for “repeated failure to follow instructions on the proper appearance
guidelines.” (Doc. No. 54 at ¶ 43).
41
52

An appropriate Order will be entered.

________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

42