Reynolds v. FCA US LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

LARRY REYNOLDS, CASE NO. 3:20 CV 12

Plaintiff,

v. JUDGE JAMES R. KNEPP II

FCA US LLC,

MEMORANDUM OPINION AND

Defendant. ORDER

INTRODUCTION

This case arises out of Plaintiff Larry Reynolds’s claims that his former employer,

Defendant FCA US LLC, committed race discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e and age discrimination in violation of the Age

Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. See Doc. 1. This Court has

jurisdiction pursuant to 28 U.S.C. § 1331. Currently pending before the Court is Defendant’s

Motion for Summary Judgment (Doc. 18), which Plaintiff opposes (Doc. 20), and to which

Defendant has replied (Doc. 21). For the reasons discussed below, Defendant’s motion is

GRANTED.

BACKGROUND

Viewing the facts in the light most favorable to Plaintiff, the background of this case is as

follows:

Parties Involved

Plaintiff, who is African-American, was originally hired in April 1998 as a full-time

production operator at Defendant’s Toledo Machining Plant (“TMP”), where Defendant

manufactures steering columns and torque converters. (Plaintiff’s Depo., at 31)1. Throughout his

tenure with Defendant, Plaintiff was a member of the United Automobile, Aerospace, and

Agricultural Workers of America Local 1435 (the “UAW”). Id. at 35. At all relevant times,

Plaintiff’s employment was governed by a collective bargaining agreement between Defendant

and the UAW as well as a local contract with Defendant. Id. at 35-36. As part of the terms and

conditions governing his employment, Plaintiff had an obligation to comply with Defendant’s

Standards of Conduct and other workplace policies. Id. at 36. One such policy was Defendant’s

Policy No. 3-6, which states in relevant part:

FCA US LLC does not tolerate harassment of any kind in the workplace that has

the effect of interfering with a person’s work performance or creating an

intimidating, hostile, or offensive work environment including harassment based

on a person’s race, color, sex, sexual orientation, gender identity, transgender

status, age, protected veteran status, marital status, religion, national origin,

disability status, or genetic information.

. . .

This policy specifically prohibits sexual harassment. “Sexual harassment” means

unwelcome physical or verbal conduct that is either of a sexual nature, or directed

to a person because of that person’s sex, when . . . [s]uch conduct creates an

intimidating, hostile, or offensive work environment.

(Doc. 16-3, at 1-2). Policy 3-6 encourages any employee who experiences or witnesses behavior

in the workplace they believe violates the policy to report it to Defendant, but they may also file

a complaint to the Equal Employment Opportunity Commission (“EEOC”) or similar state

agency (here, the Ohio Civil Rights Commission (“OCRC”)). Id. at 2. Throughout his tenure at

1. Plaintiff’s deposition is located at ECF Doc. 16-1. All references thereto are to the internal

deposition page number, rather than the ECF page number.

TMP, Plaintiff amassed several suspensions and violations of Defendant’s policies. (Doc. 16-5);

(Plaintiff’s Depo., at 42-43).2

May 2018 Complaint Against Plaintiff

In May 2018, one of Plaintiff’s coworkers, Tamika Hill,3 alleged Plaintiff harassed her

during “some confrontation in [the TMP] break room” by yelling sexually offensive phrases and

profanity, and gesticulating towards her to indicate he was talking to her. (Hermanutz Depo., at

7)4; (Doc. 20-6, at 3). A union committeeman presented the allegation to Defendant’s Labor

Relations Supervisor, Phil Hermanutz. (Doc. 20-6, at 3). In addition to the break room

allegations, Hill alleged Plaintiff had posted a petition to the local union Facebook group seeking

to remove Hill from her job, though Hermanutz was unsure of the details of the petition and did

not recall seeing it posted anywhere on the TMP premises. (Hermanutz Depo., at 7). Upon

receiving Hill’s statement, Hermanutz interviewed witnesses present at the time of the break

room incident and drafted a summary finding. Id. at 8. However, Hermanutz was unable to “find

any conclusive information because the people [he] interviewed did not hear anything . . . [or]

see anything”, and thus he could not “substantiate . . . [Hill’s] allegations.” Id. at 8-9. Though the

investigation did not amount to any formal discipline, Hermanutz warned Plaintiff not to retaliate

or treat Hill in an unprofessional manner. Id. at 9-10.

2. Plaintiff’s disciplinary record indicates he was disciplined for, inter alia, “Intimidating

Others”, “Threatening Others”, “Using Abusive Language to Others”, and “Disorderly Conduct”.

(Doc. 16-5).

3. Though Plaintiff and Hill offered varying descriptions of the nature of their prior relationship,

it is undisputed the two had a “fallout” in early 2018, which led Plaintiff to draft the Facebook

petition calling for Hill’s termination. (Plaintiff’s Depo, at 25-26, 31-32).

4. Hermanutz’s deposition is located at ECF Doc. 20-7.

October 2018 Complaint Against Plaintiff

Hermanutz did not hear about any subsequent incidents between Plaintiff and Hill in the

months following the May 2018 investigation. (Hermanutz Depo., at 11). However, in October

2018, Hill again complained of Plaintiff to Hermanutz, who began another investigation into

Plaintiff’s conduct. Id. at 11-12; see also Doc. 20-6, at 4. As with the May 2018 investigation,

Hermanutz interviewed witnesses identified by Hill but was unable to substantiate Hill’s claims

due to lack of witness corroboration. (Hermanutz Depo., at 12). During the investigation, Hill

provided Hermanutz with pornographic images and explicit messages she claimed Plaintiff sent

her in December 2017 and January 2018, but Hermanutz did not consider them as part of his

findings because “[his] main focus was what was happening [at] the plant on the premises”. Id. at

12-13; (Doc. 20-6, at 4).

After Hermanutz informed Hill informed her claims could not be substantiated, Hill filed

both a police report and a Charge of Discrimination with the OCRC in November 2018. See Doc.

20-6, at 11. Defendant’s Manager of EEO Compliance and Governance, Dorothy Williams,

subsequently retained outside counsel to “conduct a third-party, neutral investigation of the

allegations”. (Doc. 16-16).5

Outside Counsel Report and Plaintiff’s Termination

As part of her investigation into Hill’s complaint, Defendant’s outside investigator

interviewed eight witnesses, including Plaintiff and Hill. (Doc. 20-6, at 2). The investigator also

reviewed text and Facebook messages between Plaintiff and Hill, investigation notes from

Hermanutz and Human Resources Manager Ronda May, and summaries of witness statements

previously obtained by Hermanutz and May. Id.

5. Attorney Kathleen J. Sanz of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. conducted the

investigation. (Doc. 20-6, at 1).

During his interview with the investigator, Plaintiff admitted to both sending

pornographic images to Hill via Facebook and text message and posting the Facebook petition to

have Hill removed from her job, wherein he referred to Hill as a “Hood Rat” and a “THOT”.6 Id.

at 6-7; see also Plaintiff’s Depo., at 214-15, 221-22 (admitting the same). Plaintiff also admitted

to the investigator (and later confirmed in his deposition) that he and other coworkers

“typical[ly]” engage in “shop talk” in the break room, which usually involves profane and

sexually explicit comments. (Doc. 20-6, at 7); (Plaintiff’s Depo., at 130). Ultimately, the

independent investigator concluded Plaintiff violated Defendant’s Policy 3-6 by (1) sending

sexually explicit messages to Hill; (2) posting a petition that contained derogatory terms about

Hill to Facebook; and (3) using profanity and sexually explicit language in the break room. (Doc.

20-6, at 1).

After the investigator submitted her Investigation Summary Report to Williams on

January 16, 2019, Defendant adopted the investigator’s findings and terminated Plaintiff

effective February 1, 2019 for his violations of Policy 3-6. (Doc. 20-6, at 1); (Doc. 16-11).

Plaintiff’s union (the UAW) subsequently filed a grievance on Plaintiff’s behalf, after which the

UAW and Defendant settled on reinstating Plaintiff to allow him to retire rather than terminating

him. (Plaintiff’s Depo., at 222-23); (Hermanutz Depo., at 17-18); (Doc. 16-13). However,

Plaintiff did not accept this settlement and instead filed a Charge of Discrimination with the

OCRC on April 18, 2019, alleging both race and age discrimination. (Plaintiff’s Depo., at 230-

31); (Doc. 16-14). As evidence to support his charge, Plaintiff submitted to the OCRC “a list of

[sixteen] names from previous cases that were similar to [his] case.” (Doc. 20-2). Ultimately, the

OCRC found no probable cause that Defendant engaged in any unlawful discriminatory practice

6. According to the investigator, “THOT” is a colloquial acronym for “That Ho Over There.” See

Doc. 20-6, at 2, 5.

against Plaintiff; this finding was adopted by the EEOC in its Dismissal and Notice of Rights,

issued on October 10, 2019. See Doc. 1-2.

STANDARD OF REVIEW

Summary judgment is appropriate where there is “no genuine issue as to any material

fact” and “the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

When considering a motion for summary judgment, the Court must draw all inferences from the

record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or

determine the truth of any matter in dispute; rather, the Court determines only whether the case

contains sufficient evidence from which a jury could reasonably find for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the

burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be

discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of

evidence to support the nonmoving party’s case.” Id. Further, the nonmoving party has an

affirmative duty to direct the Court's attention to those specific portions of the record upon which

it seeks to rely to create a genuine issue of material fact. See Fed R. Civ. P. 56(c)(3) (noting the

court “need consider only the cited materials”).

DISCUSSION

Plaintiff’s Complaint alleges age discrimination in violation of the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621, et seq., and racial discrimination in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The Court addresses each in turn.

Age Discrimination

Plaintiff alleges age discrimination under the Age Discrimination in Employment Act, 29

U.S.C. §§ 621, et seq., contending Defendant terminated him because of his age (59 years old at

the time of termination). See Doc. 1, at 3-4. In its Motion for Summary Judgment, Defendant

asserts Plaintiff has not presented any evidence demonstrating he was replaced with a younger

worker or treated less favorably than similarly-situated non-protected employees, and thus

cannot meet his prima facie burden on this claim. (Doc. 18, at 9-10). In his opposition, Plaintiff

“concedes that his age discrimination claim lacks factual support,” and purports to “withdraw[]”

the claim. (Doc. 20, at 12). Thus, because Plaintiff admittedly lacks evidence to support his age

discrimination claim, summary judgment must be granted. See Fed. R. Civ. P. 56(c).

Race Discrimination

Plaintiff next asserts race discrimination under Title VII, 42 U.S.C. § 2000e. (Doc. 1, at

4-5). He contends he was replaced by an individual of a different race upon termination and that

Caucasian employees were disciplined to a lesser degree in “substantially similar situations.” See

id. at 5. Plaintiff further alleges the purported reason for his termination, violation of Policy 3-6,

was “false and pretextual.” See id.

Title VII expressly prohibits employers from treating employees differently according to

their race. See 42 U.S.C. § 2000e-2(a)(1). When a plaintiff does not put forth direct evidence of

racial discrimination, this Court applies the burden-shifting analysis established by McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973) and later modified by Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). This framework places the initial burden on

Plaintiff to establish his prima facie case. Burdine, 450 U.S. at 252-53 (citing McDonnell

Douglas, 411 U.S. at 802). To satisfy this burden, the plaintiff must show “(1) [he] was a

member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she

was qualified for the position; and (4) he or she was replaced by someone outside the protected

class or was treated differently than similarly-situated, non-protected employees.” Wright v.

Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006) (internal citations and quotations

omitted). If the plaintiff can establish a prima facie case, the burden shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for the termination. Burdine, 450 U.S. at 252-53

(citing McDonnell Douglas, 411 U.S. at 802). If the defendant articulates such a reason, the

burden shifts back to the plaintiff to demonstrate the proffered reason was a mere pretext for

discrimination. Id. at 253.

Prima Facie Case

Defendant contends it is entitled to summary judgment because Plaintiff has no evidence

to create a genuine issue of material fact regarding the fourth prong of his prima facie case. (Doc.

18, at 10-11). Specifically, Defendant asserts Plaintiff has not shown he was treated differently

than similarly situated employees of a different race. Id. at 11-12; see also Doc. 20, at 7.

Plaintiff responds he has identified “other employees [who] received lesser discipline for

violations of policy 3-6,” including “a supervisor [who] was charged for [violation of Policy 3-6]

but nothing came up.” (Doc. 20, at 7).

To satisfy the similarly-situated prong, the Sixth Circuit historically required plaintiffs to

point to “comparable[]” employees who are “similarly-situated in all respects”, meaning

individuals who “have dealt with the same supervisor, have been subject to the same standards

and have engaged in the same conduct without such differentiating or mitigating circumstances

that would distinguish their conduct or the employer’s treatment of them for it.” Mitchell v.

Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992) (emphasis added). The Sixth Circuit has since

clarified that “[a] court’s formulation of the similarly-situated inquiry should not be exceedingly

narrow”, and individuals are considered similarly situated “if they are similar (though not

identical) in all relevant respects.” Lynch v. ITT Educ. Servs., Inc., 571 F. App’x 440, 444 (6th

Cir. 2014) (citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.

1998)) (emphasis added). Thus, “the appropriate test is to look at [the Mitchell] factors relevant

to the factual context, as opposed to a requirement that a plaintiff demonstrate similarity in all

respects.” Jackson v. FedEx Corp. Servs., 518 F.3d 388, 396 (6th Cir. 1998) (internal citations

omitted).

Plaintiff attempts to identify similarly situated employees in two ways. First, he cites his

deposition testimony regarding a Caucasian employee “who was harassing this one chick,” and

whom he “think[s] [] got a week off work.” See Doc. 20, at 7; Plaintiff’s Depo., at 236-38.

Second, he references a letter he sent to the OCRC that lists the names of sixteen other

employees who allegedly received more favorable treatment for similar incidents. (Doc. 20, at 7)

(citing Doc. 20-2). Defendant objects to this evidence. First, it argues Plaintiff’s deposition

testimony on this point is inadmissible and based on hearsay because Plaintiff admitted “he was

not working at TMP when the situation . . . occurred, he has ‘no idea’ who made the decision to

discipline the employee involved, and he has no personal knowledge about the nature of the

alleged harassment.” (Doc. 18, at 11) (quoting Plaintiff’s Depo., at 237). Second, it argues the

OCRC letter is insufficient to establish differential treatment because it does not identify the race

of these listed individuals nor any information about who their supervisors were or the standards

to which they were held. (Doc. 21, at 3). The Court agrees with Defendant.

First, as to the identified Caucasian employee, Plaintiff admitted in his deposition he did

not witness the alleged incident, nor did he have personal knowledge as to who suspended the

employee, or what the actual suspension term was. See Plaintiff’s Depo., at 239 (“Q: Okay. So

you [Plaintiff] don’t have any personal knowledge as to the facts of what occurred, right? A: No.

I don’t have -- no. Based on what I heard. I’m only going by what I heard.”). Plaintiff moreover

confessed his source for this information was “rumors” relayed to him by a senior manager. See

id. at 238-29. Because Plaintiff admittedly has no personal knowledge of the treatment of this

employee, his testimony is plainly hearsay and thus cannot be considered by the Court as

evidence for deciding a summary judgment motion. See, e.g., Tranter v. Orick, 460 F. App’x

513, 514 (6th Cir. 2012) (“It is well established that a court may not consider hearsay when

deciding a summary judgment motion.”) (citations omitted); see also Fed. R. Evid. 602 (“A

witness may testify to a matter only if evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter.”).7

Even if it were admissible on this point, Plaintiff’s testimony is insufficient to support the

similarly-situated prong. Indeed, Plaintiff admitted in his testimony he did not work in the same

department as the Caucasian employee he alleges received more favorable treatment than him.

(Plaintiff’s Depo., at 241). Plaintiff further admitted he was unaware of “who made the decision

to discipline” the Caucasian employee and lacked personal knowledge of how long the

employee’s actual suspension was. Id. at 237, 239. Because employees being compared must be

similarly-situated “in all relevant respects,” Plaintiff’s identification of this Caucasian

employee—even if admissible—would not support his prima facie case because it is unclear how

the employee is similar in any respect to Plaintiff. See Lynch, 571 F. App’x at 444.

Second, Plaintiff’s other main piece of evidence—his letter to the OCRC—likewise does

not satisfy his burden on the similarly-situated prong. See Doc. 20-2. The letter, sent to the

7. Plaintiff himself admits on three instances in his opposition brief that his deposition testimony

regarding other employees is “somewhat hazy”. (Doc. 20, at 4, 7, 10).

OCRC on June 18, 2019 as part of the OCRC investigation into Plaintiff’s charges prior to the

commencement of this action, purports to provide “a list of names from previous cases that were

similar to [Plaintiff’s] case.” Id. “[N]ames” are all the letter provides, however. The letter does

not specify the race, employment position, or any identifiable characteristics of these individuals

named, nor does it provide any information regarding the alleged conduct or punishment the

individuals received. See id. Absent evidence of the race of the individuals, the letter cannot

provide evidence of “similarly-situated, non-protected employees.” Wright, 455 F.3d at 706

(emphasis added). Moreover, because the Court is left to wonder how the named individuals

were similarly-situated in any respect to Plaintiff, the letter certainly cannot provide the

necessary evidence that these individuals were similarly-situated “in all relevant respects.”

Lynch, 571 F. App’x at 444 (emphasis added). The OCRC letter therefore amounts to no more

than conclusory allegations that are insufficient to establish a prima facie case and survive

summary judgment. See, e.g., Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009)

(conclusory allegations are insufficient to defeat a summary judgment motion).

Finally, Plaintiff cites, without explanation, a collection of letters from Defendant to the

OCRC in which Defendant refutes the alleged incidents involving coworkers listed in Plaintiff’s

letter to the OCRC (Doc. 20-2). See Doc. 20, at 7 (citing Doc. 20-3). Though Defendant makes

no argument regarding these letters in its Motion or Reply, the letters still do not support

Plaintiff’s prima facie burden. Specifically, even though the OCRC letters provide some context

as to the circumstances surrounding disciplinary actions against Plaintiff’s coworkers, they lack

information regarding each coworkers’ race. See Doc. 20-3.8 Thus, as with Plaintiff’s OCRC

8. On the contrary, Defendant’s responses to the OCRC point out how the individuals cited by

Plaintiff are not similarly situated to Plaintiff. See, e.g., Doc. 20-3, at 4 (discussing how one of

the incidents Plaintiff cites involved racial slurs as opposed to Plaintiff’s alleged conduct).

letter, this evidence fails to support Plaintiff’s prima facie burden because it does not provide

evidence of “similarly-situated, non-protected employees.” Wright, 455 F.3d at 706 (emphasis

added).

In sum, none of the evidence Plaintiff cites to support his similarly-situated argument is

sufficient to satisfy the fourth prong of a prima facie case for racial discrimination under the

McDonnell Douglas / Burdine burden-shifting framework established. Summary judgment is

thus warranted on Plaintiff’s racial discrimination claim based on this evidentiary failure alone.

See Fed. R. Civ. P. 56(c). For clarity’s sake, however, the Court will address the second and third

steps of the burden-shifting framework below.

Legitimate, Non-Discriminatory Reason

Assuming, arguendo, Plaintiff established a prima facie case, the burden would shift to

Defendant to articulate a legitimate, non-discriminatory reason for terminating Plaintiff. Burdine,

450 U.S. at 252-53 (citing McDonnell Douglas, 411 U.S. at 802). This is a deferential burden “of

production, not of persuasion,” as Defendant must “simply explain[] what [it] has done or

produce[] evidence of legitimate nondiscriminatory reasons.” Upshaw v. Ford Motor Co., 576

F.3d 576, 585-86 (6th Cir. 2009) (internal citations and quotations omitted). Defendant has

clearly satisfied this burden by offering a legitimate, non-discriminatory reason for Plaintiff’s

termination: he violated Defendant’s Policy No. 3-6. See Doc. 16-11.

Pretext

The burden would then shift back to Plaintiff to prove by a preponderance of evidence

that Defendant’s proffered reason was a pretext for discrimination. Burdine, 450 U.S. at 253.

Plaintiff can establish pretext by showing Defendant’s justification “(1) has no basis in fact; (2)

did not actually motivate [his] termination; or (3) was insufficient to warrant [his] termination.”

Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 502 (6th Cir. 2007) (internal citations

omitted). “[A] reason cannot be a pretext for discrimination unless it is shown both that the

reason was false, and that discrimination was the real reason.” Seeger v. Cincinnati Bell Tel.

Co., 681 F.3d 274, 285 (6th Cir. 2012) (internal alteration, citation, and quotation omitted). Thus,

at this stage, Plaintiff retains the ultimate burden of producing “sufficient evidence from which

the jury could reasonably reject [Defendant’s] explanation and infer that [Defendant]

intentionally discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.

2003) (internal citations and quotations omitted).

Plaintiff offers a variety of explanations for why Defendant’s proffered justification was

“insufficient to motivate FCA’s decision to terminate [him]”, repeating many of the same

arguments he uses for his prima facie case. (Doc. 20, at 9). He first asserts Defendant’s proffered

reason is insufficient because the initial investigations by Hermanutz into Hill’s complaints

against Plaintiff “did not find any conclusive information”, thus ostensibly arguing that

Defendant’s reason had no basis in fact. Id. at 10 (quoting Hermanutz Depo., at 8). To prove

pretext under this “no basis in fact” method, Plaintiff must show more than a dispute about the

underlying facts. Under the Sixth Circuit’s “modified honest-belief” doctrine, “for an employer

to avoid a finding that its claimed nondiscriminatory reason was pretextual, the employer must

be able to establish its reasonable reliance on the particularized facts that were before it at the

time the decision was made.” Wright, 455 F.3d at 708 (internal citations and quotations omitted).

After Defendant establishes this, Plaintiff may introduce contrary evidence, but the decision to

terminate need not be optimal, but rather only “reasonably informed and considered”. See id.

As Defendant points out on Reply, that the initial investigations into Plaintiff’s conduct

did not bear any conclusive information is not sufficient to establish a genuine issue of material

fact. See Doc. 21, at 4. On the contrary, following the initial investigations, Plaintiff admitted to

conduct that violated Policy 3-6 during the investigation by outside counsel. See Doc. 20-6, at 1-

2; Plaintiff’s Depo, at 103-12. Given the breadth of information reviewed by outside counsel

during this subsequent investigation and Plaintiff’s own admission that he engaged in the

conduct that was the basis for his termination, Defendant has established it reasonably relied on

particularized facts before it at the time to come to a decision about Plaintiff’s termination. See

Doc. 20-6, at 6-7; Wright, 455 F.3d at 708. It can hardly be said, therefore, that the information

relied upon to terminate Plaintiff had “no basis in fact”. See Abdulnour, 502 F.3d at 502. The

evidence cited by Plaintiff—namely, Hermanutz’s deposition—does not raise an inference strong

enough to overcome the modified honest-belief doctrine and is thus insufficient to prove pretext.

See Wright, 455 F.3d at 708.

Second, Plaintiff attempts to prove pretext by repeating his prima facie argument that

non-African American employees were not terminated for engaging in similar misconduct,

which seemingly goes towards the second method of proving pretext—that the stated reason for

termination was not the actual reason. (Doc. 20, at 10).9 As discussed above, the evidence

underlying this assertion is inadmissible at the summary judgment stage. See Tranter, 460 F.

App’x at 514. Thus, because Plaintiff is left with nothing more than conclusory allegations, he

has not provided evidence to support an inference that racial discrimination was “more likely”

Defendant’s motivation than Defendant’s proffered reason. Smith v. Leggett Wire Co., 220 F.3d

752, 759 (6th Cir. 2000).

Third, Plaintiff attempts to rely on a statement from his union steward, Naomi Martin, to

support the assertion that “Defendant itself had already determined that the allegations against

9. Indeed, this portion of Plaintiff’s argument includes his third repetition of the same alleged

facts. See also Doc. 20, at 4, 7.

Mr. Reynolds were not enough to merit termination.” (Doc. 20, at 10-11) (citing Doc. 20-4).

Defendant makes two arguments on Reply. First, it argues the document is inadmissible at the

summary judgment stage because it is an unsworn statement. (Doc. 21, at 3). Second, it asserts

even if the statement were admissible, it would still “fail[] to demonstrate [Plaintiff] was treated

differently than similarly situated coworkers based on his race.” Id. The Court agrees with

Defendant (Doc. 21, at 3) that, regardless of the statement’s admissibility, the statement says

nothing about why Defendant terminated Plaintiff and instead merely describes Martin’s personal

belief that the incidents between Plaintiff and Hill “never should have gone to HR” (Doc. 20-4).

Martin even admits in the statement “[she] do[es] not direct the work force,” which further

demonstrates the irrelevancy of this evidence to a pretext argument because it provides no

information from which a jury “could reasonably reject [Defendant’s] explanation and infer that

[Defendant] intentionally discriminated against [Plaintiff].” Johnson, 319 F.3d at 866 (internal

citations and quotations omitted).

Fourth, Plaintiff attempts to show pretext by asserting the outside investigation was

insufficient because “not a single witness could definitively attribute any inappropriate statement

about Ms. Hill to [Plaintiff].” (Doc. 20, at 11). Several problems underlie this line of reasoning.

First, even taking the facts in the light most favorable to Plaintiff, Plaintiff’s statement about a

lack of witness corroboration overlooks corroboration from the most important witness: Plaintiff

himself, who admitted to conduct that violated Policy 3-6. See Doc. 20-6, at 1-2; Plaintiff’s

Depo., at 103-12. Second, as Defendant asserts on Reply, it is irrelevant to a pretext inquiry

whether an employer’s ultimate conclusion “is later shown to be mistaken, foolish, trivial, or

baseless” so long as the employer “reasonably and honestly relies on particularized facts in

making an employment decision.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).

Thus, even if Defendant relied on information from outside counsel that was deficient in some

way in hindsight, Plaintiff cannot establish pretext if Defendant’s belief in the information was

reasonable and honest at the time of termination. See id.; see also Miles v. S. Cen. Hum. Res.

Agency, Inc., 946 F.3d 883, 886 (6th Cir. 2020) (“[A]n employer may fire an employee for a

good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its

action is not for a discriminatory reason.”) (internal citations and quotations omitted). Based on

the comprehensive investigation performed by outside counsel and Defendant’s explicit mention

of the investigation in Plaintiff’s termination paperwork, Defendant has established its reliance

on the information available to it was reasonable and honest and Plaintiff has not provided

evidence to the contrary. (Doc. 16-11); (Doc. 20-6); see Chen, 580 F.3d at 400.

Fifth, and finally, Plaintiff attempts to show pretext by asserting Hill engaged in

substantially similar conduct as him but was not disciplined. (Doc. 20, at 12). Specifically,

Plaintiff alleges Hill “also engaged in making explicit statements to [Plaintiff], and responded to

his text messages, but she was not disciplined for doing so.” Id. This assertion is insufficient to

prove pretext. By pointing out Hill’s alleged conduct in comparison to his own, Plaintiff is

ostensibly attempting to argue Defendant’s proffered reason was insufficient to warrant his

termination because similar action was not taken against a similarly-situated employee. See

Gunn v. Senior Servs. of N. Ky., 632 F. App’x 839, 847-48 (6th Cir. 2015). The standard for

proving pretext under this method is akin to the similarly-situated prong of a prima facie

analysis: Plaintiff must “demonstrate that other employees outside of [his] protected class were

not fired, even though they were similarly situated and engaged in substantially identical conduct

to that which the employer contends motivated its decision.” Id. at 848 (citing Smith, 220 F.3d at

762). Plaintiff clearly does not satisfy this burden because, as Defendant points out in Reply, Hill

is also African-American and thus not “outside of [Plaintiff’s] protected class”. Id. Thus, even

taking Plaintiff’s assertion in the light most favorable to him, that Hill may have engaged in such

conduct does not raise an inference that racial discrimination was “more likely” Defendant’s

motivation that Defendant’s proffered reason. See Smith, 220 F.3d at 759.

The legal sufficiency of Plaintiff’s contention aside, that Hill engaged in similar conduct

to Plaintiff is factually unsupported. Plaintiff does not support his assertion regarding Hill with

any record evidence, as there is no indication in the outside counsel’s report that Plaintiff ever

reported Hill “making explicit statements to [him]”. See Doc. 20-6, at 6-7.10 Thus, even if

Plaintiff now testifies to Hill engaging in similar conduct, because the outside investigator never

reported Hill making such statements and Plaintiff has not presented any evidence Defendant

was aware of such, Plaintiff cannot show Defendant failed to “reasonabl[y] rel[y] on the

particularized facts that were before it at the time the decision was made.” See Wright, 455 F.3d

at 708.

Plaintiff offers many purported reasons why his termination was pretextual. Some of

them misstate the facts. Some of them have no bearing on the Sixth Circuit’s standard for

proving pretext. But all of them fail to establish “sufficient evidence from which the jury could

reasonably reject [Defendant’s] explanation and infer that [Defendant] intentionally

discriminated against him.” Johnson, 319 F.3d at 866 (internal quotations and citations omitted).

Therefore, even assuming Plaintiff could establish a prima facie case, the Court would still find

Defendant entitled to summary judgment.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

10. On the contrary, Plaintiff admits Hill specifically told him to stop sending her sexually

explicit messages. (Plaintiff’s Depo., at 113-14).

ORDERED that Defendant’s Motion for Summary Judgment (Doc. 18) be, and the same

hereby is, GRANTED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE