Opinion
Case Number 02-10177-BC.
April 29, 2003.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Wayne Szagesh, was fired from his job at the Kaumagraph Flint Corporation on September 12, 2001 when he failed to show up for work. The defendant claims that the termination was for violation of the defendant's attendance policy, but the plaintiff has alleged that he was fired in retaliation for complaints he made to management based on gender and disability discrimination. The defendant has moved for summary judgment seeking dismissal of the plaintiff's four-count complaint alleging violations of the Americans with Disabilities Act and Title VII of the Civil Rights Act, and the state analogues of those federal statutes. The Court held a hearing on the motion on April 21, 2003 in open court where the parties presented their arguments through counsel. The Court finds that the record contains no direct evidence of retaliation by the defendant, and that the plaintiff has not brought forth circumstantial evidence sufficient to create a material fact issue from which a jury could conclude that his termination from employment was motivated by the defendant's retaliation against him for asserting rights protected by the legislation mentioned earlier. The Court therefore will grant the motion and dismiss the case.
I.
Defendant Kaumagraph Flint Corporation manufactures dashboard display components for the automobile industry at its Millington, Michigan plant, where it employs about 160 employees. The plaintiff had been employed there since 1995. He hired in as an hourly production worker, and was promoted to the position of production coordinator in 1999.
Kaumagraph has an official attendance policy, a copy of which is contained in its employee manual. According to the policy, an employee who is absent or tardy without justification receives an "occurrence" for the infraction. The accumulation of occurrences within a revolving twelve-month period leads to progressively more severe discipline: after the first two occurrences employees receive notification of the violation; a written warning is issued after the third occurrence; a one-day suspension is imposed after the fourth occurrence; and the employee can be discharged after the fifth occurrence. The defendant asserts, without contradiction, that it applies this policy to all its employees. The plaintiff admits that he was aware of the policy and its progressive discipline features.
It is undisputed that the plaintiff accrued several violations in the twelve-month period from July 2000 to July 2001. He received his third occurrence when he left early on June 22, 2001 without personal time available to cover his absence. The plaintiff knew that he risked an occurrence when he left early that day. In accordance with the defendant's policy, the plaintiff was given a written warning on June 26, 2001 indicating three occurrences within a twelve-month period. The plaintiff acknowledged that he knew at that time that he was two occurrences away from possible termination.
The plaintiff received four additional occurrences in early July 2001 because of the manner in which Kaumagraph decided to administer its attendance policy during the model change-over period. The plant shuts down for about a week each year in the month of July to reset its production line. Kaumagraph had required its employees to reserve 32 hours of vacation time to cover that week. Employees were notified of their obligation to reserve personal time for the shutdown through notices posted on the employee bulletin board. However, beginning in July 2000, employees who failed to reserve adequate time for the shutdown were to receive one occurrence for their oversight. The plaintiff did not actually reserve time for the shutdown in July of 2000, but he was not given an occurrence because, as explained in a July 19, 2000 memorandum, the company excused his breach of policy since he had exhausted his personal time off before the company posted the shutdown notice on March 31, 2000 and prior to the announcement of the new enforcement provision. However, the July 19 memorandum to the plaintiff explained that "disciplinary action will result" if the plaintiff failed to reserve adequate time for the July 2001 shutdown. The plaintiff denies ever having received the July 19 memorandum.
The company changed its attendance policy again in the Spring of 2001; Kaumagraph decided to issue one occurrence for each day that an employee failed to reserve sufficient time during the July 2001 shutdown. Kaumagraph believed that this policy was more consistent with the occurrence rules for other absences, and felt that its employees had adequate notice of the need to preserve vacation for the shutdown week. No written notice was provided to employees of this change.
Both the plaintiff and his wife, who was also employed by Kaumagraph, failed to reserve sufficient time for the shutdown, and they each received four occurrences. Six other Kaumagraph employees were similarly cited. The plaintiff testified that all three employees he knew who failed to reserve sufficient time for the shutdown received multiple occurrences.
The plaintiff and his wife had therefore accrued seven occurrences for the twelve-month period in question, justifying discharge. Instead of termination, Kaumagraph elected to impose a five-day suspension upon all individuals who had exceeded their occurrence limit because of the July shutdown, with the proviso that "any more occurrences within this twelve month period will result in automatic termination." The plaintiff acknowledged this condition of the suspension at the time.
The circumstances underlying the plaintiff's complaints of discrimination and retaliation transpired around the time that the plaintiff was accumulating his attendance policy occurrences. The plaintiff came to Kaumagraph in 1995 without the sight in one eye as a result of a childhood accident. He alleges that sometime after the Fall of 2000 when Jeff Muska became his supervisor, Muska criticized an inspection job the plaintiff had performed by commenting that the plaintiff should "open his good eye." Muska admitted in his deposition to making some comment to the effect that the plaintiff "could have seen that with [his] bad eye" after the plaintiff missed a defect that Muska thought should have been obvious to him. The plaintiff claims that Muska made similar comments on other unspecified occasions, but Muska did not recall making any other comment of this nature.
The plaintiff also alleges that female employees received preferential treatment from Muska, pointing to an one occasion on April 26, 2001 when the plaintiff was given an occurrence for his absence on April 5, 2001 while he attended his uncle's funeral. The plaintiff testified that female employees were permitted to take off time without penalty to attend a different funeral. On June 26, 2001, the plaintiff received another occurrence for violating attendance rules because he left before the end of his shift on June 22, 2001. The plaintiff had asked Muska for permission to leave early that day and make up the time later, but Muska refused. The plaintiff left anyway. The plaintiff testified that he felt Muska was being unfair, as he had allowed a female employee to leave for three hours on June 14, 2001 without making up the time. Muska confirmed that he had indeed allowed a female employee to leave on that day without making up time.
It is undisputed that on June 25, 2001, the plaintiff went to Kaumagraph's human resources administrator, Heather Gust, to complain about Muska's conduct, both as to his comments relating to the plaintiff's physical impairment (monocular vision) and perceived preferential treatment of females. After conducting an investigation, Gust concluded that while "there is a lot going on second shift that is inappropriate," "I do not believe that Wayne [Szagesh] has been singled out and treated any differently because he is a man." Gust Investigation Notes, Def.'s Summ. J. Ex. J, at D00225-231. This conclusion was substantiated in part by conversations with co-workers Linda Evans, Dawn Gross, Beth Henry, and Don Sebert, all of whom the plaintiff had suggested she consult. Gust's notes indicate that these employees all stated that while Muska was lenient, Szagesh also had received his fair share of breaks from Muska.
In her notes, Gust also questions the timing of the plaintiff's complaint, noting that, despite the passage of several weeks since Muska's allegedly offensive comment, the plaintiff chose to complain shortly before he was to be cited for reserving insufficient time for the July 2001 shutdown. The defendant cites to depositions suggesting that the plaintiff's motivation for complaining about Muska was the upcoming shutdown. See Muska Tr. at 51-53 (reporting the plaintiff to have stated that he "felt his back was against [the] wall and he had to do something"); Beth Henry (Palasty) Tr. at 10-11 (stating that the plaintiff had said he wanted to have "his behind covered" and "to make sure he was going to be able to keep his job"). The plaintiff denies making any such comments, and the Court therefore does not consider them in adjudicating the defendant's motion for summary judgment, since the Court must view the evidence in the light most favorable to the nonmoving party. After Gust informed Szagesh of the results of her investigation, the plaintiff told her he figured she would not uncover anything and that he would likely now be the target of retaliation. Gust testified that she responded to this comment by inquiring why Szagesh then had bothered to complain.
On July 20, 2001, after the plaintiff had served his five-day suspension, the plaintiff testified that Muska, Joan Fackler, Operations Manager, and Shawn Morse, Finishing Unit Manager, met with him to complain about his "attitude," the first instance of such a reprimand in several months. The July 20 meeting was called after the plaintiff informed Morse that he felt he was being discriminated against. The plaintiff also alleges that at this meeting, Fackler told him that "she realizes it's a free country, freedom of speech, but not in that plant; if I complain [about] discrimination or harassment again I would be terminated." Szagesh Dep. at 119. The defendant denies that Fackler made that statement, and points to other comments putting the statement in context that suggest that Fackler was merely telling the plaintiff that complaints of discrimination should not be aired on the plant floor, but rather should be addressed to the human resources department.
Then, on September 11, 2001, Gust and Muska met with the plaintiff to complain about allegedly unacceptable performance and behavior. The plaintiff was also informed at that time that he was being demoted from production coordinator to inspector.
The plaintiff did not report for work on September 12, 2001. The circumstances surrounding this absence are hotly disputed by the parties. Heather Gust claims that she investigated the absence and found that no message had been left indicating a reason for the absence. The plaintiff insists that he did call in with a medical reason. A supervisor, Shawn Morse, confirmed that Szagesh called in with an excuse on at least one occasion, but could not recall the date or whether it related to the September 12 absence. Under Kaumagraph's attendance policy, the plaintiff was subject to two occurrences: one for not showing up, and one for not calling in. Believing that no call had been made, Gust terminated the plaintiff for violation of the attendance policy.
The plaintiff filed this action alleging retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12203, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, the Michigan Persons with Disabilities Act, Mich. Comp. Laws § 37.1602, and the Michigan Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2701. The defendant has moved for summary judgment under Federal Rule of Civil Procedure 56(c), alleging that there is no direct evidence of retaliation, and the plaintiff has not established a prima facie case under the McDonnell-Douglas burden-shifting framework for circumstantial cases. The defendant argues in the alternative that even if a prima facie case is shown, it is undisputed that the plaintiff's violation of the defendant's attendance policy is a legitimate, non-retaliatory reason justifying the discharge, and the plaintiff has not offered sufficient evidence of pretext to create a fact issue for trial.
II.
A motion for summary judgment under Rule 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted). A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999). The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23. The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
The elements of a retaliation claim brought under Title VII are the same as for those claims brought under the ADA. Penny v. United Parcel Service, 128 F.3d 408, 417 (6th Cir. 1997). To establish retaliation, a plaintiff "must show: (1) that he engaged in protected activity; (2) that he suffered adverse employment action; and (3) that a causal connection existed between the protected activity and the adverse action." Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 814 (6th Cir. 1999) (citing Penny, 128 F.3d at 417). The analogous state law claims track these requirements as well. See Meyer v. City of Center Line, 242 Mich. App. 560, 568-69, 619 N.W.2d 182, 188 (2000) (ELCRA retaliation); Bachman v. Swan Harbor Ass'n, 252 Mich. App. 400, 433 n. 26, 653 N.W.2d 415, 436 n. 26 (2002) (PWDCRA retaliation)
The causation element can be established by either direct or circumstantial evidence. Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). When the plaintiff offers direct evidence of retaliation, the employer's claim that it would have terminated the plaintiff even absent the assertion of protected rights becomes an affirmative defense for which the employer has the burden of proof. See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-46 (1989); Johnson v. City of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000). The plaintiff need prove no more to withstand a summary judgment motion. See Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 879 (6th Cir. 1991) (finding that the plaintiff had no need to disprove pretext where she presented, and the fact-finder believed, that her supervisors informed her and told others that their actions were taken in response to her protected activity). "Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Weberg v. Franks, 229 F.3d 514, 522 (6th Cir. 2000).
In the absence of direct evidence of causation, the McDonnell-Douglas burden-shifting analysis is used in cases brought under Title VII and the ADA, as well as their Michigan state-law analogues. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (Title VII retaliation); Penny, 128 F.3d at 417 (ADA retaliation); Meyer, 242 Mich. App. at 568-69, 619 N.W.2d at 188 (ELCRA retaliation); Bachman, 252 Mich. App. at 433 n. 26, 653 N.W.2d at 436 n. 26 (2002) (PWDCRA retaliation). To prevail under this framework for claims of retaliatory discharge, the plaintiff must present a prima facie case, the defendant then must come forward with legitimate, non-discriminatory reasons for its action, and then the plaintiff must offer evidence that the defendant's justification is a pretext for retaliation. See White v. Burlington N. Santa Fe Ry. Co., 310 F.3d 443, 449 (6th Cir. 2002). A prima facie case is established if the plaintiff, at a minimum, provides evidence from which a reasonable jury could conclude that (1) he engaged in protected activity; (2) the exercise of his protected civil rights was known to the employer; (3) the defendant thereafter discharged him; and (4) circumstances suggest that the discharge was due to the protected activity. See Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990). Under the ELCRA, the causation component must include proof that the protected activity was a "significant factor" in the adverse action taken. Moore v. KUKA Welding Sys. Robots Corp., 171 F.3d 1073, 1080 (6th Cir. 1999).
A.
The plaintiff argues that the statement that he attributes to Operations Manager Joan Fackler that he would be fired if he again complained about discrimination constitutes direct evidence that the company terminated him in retaliation for his discrimination complaints. Although the defendant denies that the statement was made, and offers an alternate explanation for the conversation, the Court accepts the plaintiff's version for the purpose of this motion. Nonetheless, the statement does not constitute direct evidence of retaliation for several reasons. First, the statement was not made as an explanation for the employer's adverse employment action against the plaintiff. Rather, viewing it in the light most favorable to the plaintiff, at most it constituted a threat calculated to discourage future complaints. However, the plaintiff did not complain about discrimination after the July 20, 2001 meeting at which the statement was allegedly made, nor is there any evidence that the defendant perceived any such complaints during that time. Consequently, the plaintiff's termination in September cannot have been the consummation of the threat. Second, there is no evidence that Fackler participated in the decision to terminate the plaintiff. The undisputed testimony is that Heather Gust made the decision on her own. Third, there is no evidence that Gust was aware that Fackler ever made such a comment, and, hence, no link between the comment and the adverse action that occurred two and one-half months in the future.
Even if a jury believed that Fackler threatened future adverse consequences, that evidence would not require the conclusion that the September 2001 termination was motivated by the plaintiff's past assertion of his rights, especially since the triggering event on which the threat focused never occurred. At most, an inference of discrimination might arise, but that is not sufficient to constitute a direct evidence case. Since there is no direct evidence of retaliation, the Court must examine the record to determine whether the plaintiff has established a circumstantial case.
B.
The defendant argues that the plaintiff has not presented a prima facie case because there is no evidence that the plaintiff's termination in September 2001 was causally linked to his June 25, 2001 complaints to Heather Gust, other than the fact that the termination came after the complaints. The defendant concedes that there is sufficient evidence on the other components of a prima facie case, since it is virtually undisputed that the complaints of discrimination constituted protected activity, the employer was aware of the plaintiff's exercise of his protected rights, and the discharge amounted to adverse employment action.
Proximity of time between notice and adverse employment action usually, by itself, will not provide sufficient evidence of causation to survive summary judgment. Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818, 826 (6th Cir. 2002). Compare id. with Ford v. Gen. Motors Corp., 305 F.3d 545, 555 (6th Cir. 2002) (finding temporal proximity sufficient where Title VII retaliation started immediately after the protected conduct occurred) and Johnson v. Univ. of Cincinnati, 215 F.3d at 582-83 (finding prima facie case for retaliation made when alleged retaliatory activity started the same day the complaint was made). However, the combination of proximity in time with other evidence, such as that, following the protected activity, the plaintiff was treated differently from similarly-situated individuals, can suggest a causal connection sufficient to establish a prima facie case of retaliation. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). This so-called "timing-plus" test can be satisfied by hostile comments from supervisors, but such comments are not probative of causation unless the supervisor in question was part of the process that led to the adverse action suffered. See Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000) (collecting Sixth Circuit cases on this rule, and finding that discriminatory comments made by co-workers other than the those who terminated the plaintiff were not probative of causation); see also Ercegovish v. Goodyear Tire Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998) ("An isolated discriminatory remark made by one with no managerial authority over the challenged personnel decisions is not considered indicative of . . . discrimination."); cf. id. at 355 (noting that "the discriminatory remarks of those who may have influenced the decision not to reassign the plaintiff to other positions in the company may be relevant when the plaintiff challenges the motive behind that decision"). It must be remembered, however, that the hurdle erected by the prima facie case requirement is not a high one. It is intended primarily to weed out the most frivolous cases.
The prima facie requirement for making a Title VII claim "is not onerous," Burdine, 450 U.S. at 253, and poses "a burden easily met." Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987). The prima facie phase "merely serves to raise a rebuttable presumption of discrimination by `eliminating the most common nondiscriminatory reasons for the [employer's treatment of the plaintiff].'" Hollins v. Atlantic Co., 188 F.3d 652, 659 (6th Cir. 1999) (quoting Burdine, 450 U.S. at 253-54). It is "only the first stage of proof in a Title VII case," and its purpose is simply to "force [a] defendant to proceed with its case." EEOC v. Avery Dennison Corp., 104 F.3d 858, 861-62 (6th Cir. 1997). This division of intermediate evidentiary burdens is not meant to stymie plaintiffs, but simply serves to "bring the litigants and the court expeditiously and fairly to the ultimate question." Burdine, 450 U.S. at 253.Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000). In particular, Cline warns against using the defendant's rationale for discharging the plaintiff to discount the causal connection analysis in determining whether a prima facie case has been made. Id. at 660-61 ("[W]hen assessing whether a plaintiff has met her employer's legitimate expectations at the prima facie stage of a termination case, a court must examine plaintiff's evidence independent of the nondiscriminatory reason `produced' by the defense as its reason for terminating plaintiff.")
Here, the plaintiff brings forth evidence, when viewed in the light most favorable to him, that suggests that his relationship with management took a turn for the worse after he made his complaints of discrimination. He was criticized for having a bad attitude. His work was scrutinized more closely. He was told in a meeting with his supervisors that further complaints would result in termination. He was accused of insubordination. All of this occurred in the three months that intervened between his initial complaint and his termination. The Court believes that this evidence combined with the proximity of the complaints to the adverse action raises a sufficient suggestion of causation to make out a prima facie case, and to require the defendant to come forward with a legitimate reason for the discharge.
C.
The defendant, of course, contends that its well-documented and uniformly enforced attendance policy provides the basis for the plaintiff's termination. It insists that the plaintiff was well above his occurrence quota, that he had been warned of the consequences, and that his failure to report to work on September 12, 2001 was more than ample justification for the ultimate employment sanction. The Court agrees, and therefore turns to the question of whether the plaintiff has offered evidence sufficient to create a fact question on which reasonable minds might differ on whether the defendant's justification for firing the plaintiff was really a pretext for retaliation. See Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 599 (6th Cir. 2001).
A plaintiff can demonstrate pretext " by showing that the 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." Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (citation omitted). A leading Sixth Circuit case, Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078 (6th Cir. 1994), provides a thorough gloss on each of these methods of proving pretext:
The first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiff's discharge never happened, i.e., that they are "factually false." Baxter Healthcare, 13 F.3d at 1123-24. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibility of the employer's proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed "a suspicion of mendacity." Hicks, 509 U.S. at ___, 113 S.Ct. at 2749. As Hicks teaches, such a showing permits, but does not require, the factfinder to infer illegal discrimination from the plaintiff's prima facie case.
The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. The plaintiff's attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it "more likely than not" that the employer's explanation is a pretext, or coverup.
If the bare bones elements of a plaintiff's prima facie case were sufficient to make this showing, however, the entire "burden shifting" analysis of McDonnell Douglas and its successors would be illusory. No case could ever be culled out after the prima facie stage and every case would have to be determined by a jury. We do not believe that this was the intent of Congress or the outcome envisioned by the Supreme Court in its long line of cases implementing employment discrimination legislation. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce additional evidence of . . . discrimination.Manzer, 29 F.3d at 1084.
Subsequent Sixth Circuit decisions have developed Manzer's analysis of the pretext requirement. For example, in Johnson v. Kroger Co., a case dealing with employment discrimination based on race, the employer responded to the employee's prima facie case of discrimination by setting forth the legitimate reason for discharge that the plaintiff, a store manager, was not competently performing his duties. The court found that pretext could not be shown via the first method — the reason has no basis in fact — because "Kroger employees working under [the supervisor in question] documented instances of unsatisfactory conditions . . . even after [the plaintiff] had been told about the problems." 319 F.3d at 866. The third method — the conduct was insufficient to justify the action — was similarly unavailing. Although the plaintiff had shown that other managers with quality problems had not been fired, none of those individuals worked under the supervisor in question, thus rendering their experiences unpersuasive to demonstrate differing treatment of similarly situated individuals. The second method, however, bore fruit. One of the plaintiff's supervisors had specifically opined that having a black manager would negatively affect business. Although this individual was not the ultimate decision-maker on the plaintiff's termination, he nonetheless consulted with the decision-maker on a regular basis about the plaintiff and his job performance. Coupled with evidence of racial jokes being told in the workplace, the court concluded that sufficient evidence of pretext had been demonstrated to entitle the plaintiff to a trial.
Also noteworthy is Gray v. Toshiba American Consumer Products, in which the Sixth Circuit reversed a jury verdict for the plaintiff and directed entry of judgment for the defendant. There, the plaintiff was fired after she was warned not to provoke a physical altercation at her workplace, but did so anyway. The Sixth Circuit first concluded that such behavior plainly justified the plaintiff's termination. 263 F.3d at 600-01. It then found no evidence from which a jury could have concluded that the termination was a pretext for discrimination. The first option was unavailable because the plaintiff had provided no evidence that she did not commit the assault charged or that she was not warned against doing it. The third option was also not pertinent, as the plaintiff provided no evidence of other employees not being fired after engaging in premeditated assaults on other employees. Because the plaintiff had adduced no additional evidence of discrimination aside from her prima facie case, the second option similarly could not support a finding of pretext. Id. at 602.
Noncompliance with an attendance policy is a legitimate reason to discharge an employee. See Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 378 (6th Cir. 2002) (noting that the plaintiff's "poor attendance" record was one of the reasons advanced for her termination, and affirming lower court's finding that no pretext had been demonstrated). The plaintiff does not dispute this. Accordingly, the question is whether the plaintiff has presented any evidence from which a jury could conclude it more likely than not that the defendant's discharge of the plaintiff was motivated by discrimination, not his attendance problems.
The plaintiff claims to have satisfied all three possible methods of demonstrating pretext. First, he contends that the reason for discharge has no basis in fact because both he and Shawn Morse testified that he in fact did call in on September 12, 2001 to report his medical absence. The defendant responds that the call-in dispute is a red herring, and that by failing to appear on September 12, the plaintiff already was guaranteed one occurrence. Whether the plaintiff called in or not was relevant only to whether he received a second occurrence for failing to explain his absence as well. Because the plaintiff needed only one occurrence to be discharged, the dispute over whether the plaintiff called in on September 12 is not material to the question of pretext.
Second, the plaintiff claims that there is evidence that his absences did not motivate the discharge decision because he was scrutinized more closely after his complaint than before, he was going to be demoted, and Fackler told him he would be discharged if he again complained about discrimination. The Fackler comment, even if it actually occurred, is immaterial because no evidence has been introduced rebutting Gust's testimony that she made the decision to terminate Szagesh's employment without consulting Fackler, and that Fackler, unlike the supervisor in Johnson, was not consulting with Gust about Szagesh's performance as an employee. So characterized, Fackler's comment would at best be a stray remark by a non-decisionmaker, which is not enough to demonstrate pretext. See Smith, 220 F.3d at 759.
The plaintiff's concerns about being more closely scrutinized are not particularly persuasive given his own admission that being reprimanded for his attitude had occurred previously and the reality that he was subject to closer scrutiny as a result of the last-chance agreement by which Kaumagraph gave him yet another opportunity to keep his job even though the attendance policy authorized termination after the July violations. More importantly, recycling suspiciously-timed events is not enough to carry the case into the jury room; rather, where the plaintiff takes the second road to proving pretext — i.e., admitting the sufficiency of the employer's rationale but arguing that it nonetheless was not the motivating factor in his dismissal — the plaintiff must move beyond his prima facie case to provide overwhelming circumstantial evidence of discrimination. See Manzer, 29 F.3d at 1084 (noting that the plaintiff in this instance argues that "the sheer weight" of the circumstantial evidence allows a fact-finder to question the employer's stated rationale). This, the plaintiff has failed to do.
Finally, the plaintiff claims that his absence on September 12 was insufficient to warrant his termination because he should only have received one occurrence for the 2001 shutdown and one for failing to appear on the 12th, totaling four occurrences, which is insufficient for termination. He argues that the real reason the company changed its policy in 2001 to assign four occurrences for failing to reserve enough leave time to cover the 32-hour period instead of one occurrence, as was done the previous year, was to set up the plaintiff for a discharge. The Court cannot accept this contention, since there is no evidence of any such motivation on the part of Kaumagraph, and the implausibility of the argument removes the inference beyond the realm of reason. It is clear that the policy for the 2001 shutdown — assigning one occurrence for each day of vacation not preserved — was established well in advance of July 2001 and consistently applied to employees who did not comply with company policy. There is no suggestion in the record that the defendant's hostility toward the plaintiff was so intense as to cause them to inflict collateral damage on other employees who were swept within the clutch of the new policy so that it could seal the fate of the plaintiff. Further, after the policy change swelled the plaintiff's occurrence aggregate to seven, Kaumagraph still did not fire him, but gave him one more chance. The plaintiff therefore actually accrued seven occurrences — three for previous violations and four for the non-holiday working days for which he did not reserve vacation time.
Even if this Court were to ignore the record in this case and conclude that only one occurrence should have been assigned for July 2001, the plaintiff's argument would fail both as a matter of law and arithmetic. The plaintiff had three occurrences, not two, before July 2001. Reserving insufficient time for the shutdown would be a fourth occurrence under the old policy, and not reporting for work on September 12 would have been a fifth, thus justifying termination under the defendant's attendance policy. The defendant's proffered reason for termination would have been sufficient without accounting for the disputed occurrence assigned for failing to notify the company of the September 12 absence, or assigning multiple occurrences for the July plant shutdown breach.
The Court finds, therefore, that the plaintiff has failed to come forward with evidence of pretext which is sufficient to create a genuine issue of material fact on the element of causation. There is no direct evidence of retaliation, and the plaintiff has not made out a circumstantial case that withstands summary judgment.
III.
Although the plaintiff has come forward with evidence establishing a prima facie case in his retaliation claims, he has not proved that the defendant's legitimate reason for firing him — violating the company attendance policy — is a pretext for retaliation.
Accordingly, it is ORDERED that the defendant's motion for summary judgment [dkt #26] is GRANTED.
It is further ORDERED that the plaintiff's complaint is DISMISSED WITH PREJUDICE.