# Chan v. PNC Bank, National Association

> District Court, N.D. Ohio · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10373257

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** March 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10373257

## How later opinions describe it (automated extraction)

- holding that where Plaintiff did not receive a bonus because her employment was terminated for a “legitimate, nondiscriminatory reason,” this was not an adverse employment action
- holding that discrimination claims brought under Title VII and Ohio state law are examined using the same legal framework

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BILLY CHAN, ) CASE NO. 1:21-cv-00938
)
Plaintiff, ) JUDGE DAVID A. RUIZ
)
v. )
)
PNC BANK, NATIONAL )
ASSOCIATION, ) MEMORANDUM OPINION AND ORDER
)
Defendant. )

This matter is before the Court upon Defendant PNC Bank, National Association’s
Motion for Summary Judgment. (R. 20). For the following reasons, the Motion is GRANTED.
I. Procedure
Plaintiff Billy Chan filed a civil Complaint in the Cuyahoga County Court of Common
Pleas alleging multiple claims against Defendant, his former employer. (R. 1-1). Specifically,
Plaintiff alleges Ohio state law claims of discrimination based on race and national origin, as
well as unlawful retaliation for Plaintiff’s engagement in a protected activity. (Id., PageID# 29–
33 ¶¶ 276–311). Defendant removed the case to this Court on the basis of diversity jurisdiction.
(R. 1, PageID# 2–4 ¶¶ 5–14).1
Now pending is Defendant’s Motion for Summary Judgment, pursuant to Federal Rule of
Civil Procedure 56. (R. 20; R. 21). Plaintiff has filed an Opposition and Defendant a Reply. (R.
29; R. 30). The matter is fully briefed.

1 This action, previously assigned to another District Court Judge, was reassigned to the
undersigned on February 20, 2022.
II. Facts2
A. Plaintiff’s Employment
Plaintiff, who is Chinese, began working for Defendant in 2006, but the pertinent facts
relevant to the instant dispute between the parties begin in 2016. (R. 1-1, PageID# 11 ¶¶ 9–12).
For the 2016 work year, Plaintiff’s direct manager, Yan Chang, issued Plaintiff mid-year and
end-of-year performance reviews indicating that Plaintiff only “Meets Some Expectations.” (Id.,
PageID# 12, 16 ¶¶ 23–26, 77–78; R. 21, PageID# 182–184; R. 22-1, Chan Depo., PageID# 242–
244, 246–247, R. 22-2, PageID# 313–327). Approximately three months after his 2016 mid-year
review, Plaintiff was instructed to stop working on a particular project involving commercial
models and monitoring. (R. 22-2, Chan Depo. Ex. 5, PageID# 318; R. 29-9, PageID# 1266).
Plaintiff alleges that his 2016 bonus was reduced by 80%. (R. 22-7, Olenak Dep. Ex. 7, PageID#
482; R. 21, PageID# 192). In early 2017, Defendant transferred Plaintiff to the Anti-Money
Laundering Department. (R. 28-6, Chang Depo., PageID# 1055–1057; R. 29, PageID# 1195).
On February 24, 2017, Plaintiff filed a complaint of workplace discrimination with

human resources. (R. 22-7, Olenak Depo. Ex. 5, PageID# 479; R. 28-2, Olenak Depo., PageID#
724–726; R. 21, PageID# 191–192; R. 29, PageID# 1195). On September 11, 2017, Plaintiff was
issued another mid-year performance review, this one indicating that he “Does Not Meet
Expectations.” (R. 22-1, Chan Depo., PageID# 251–252; R. 22-2, Chan Depo. Ex. 7, PageID#
328–334; R. 21, PageID# 185). Defendant contends that in light of this poor performance review,
Plaintiff was advised that he was required to work in person at Defendant’s National City Center
in Cleveland. (R. 21, PageID# 186; R. 22-4, Escofil Decl., PageID# 372 ¶ 6; R. 28-7, Escofil

2 The following recitation of facts is undisputed unless otherwise indicated.
D epo., PageID# 1150).
On September 14, 2017, Defendant issued Plaintiff a written warning due to his job
performance and placed him on a performance improvement plan. (R. 22-1, Chan Depo.,
PageID# 260; R. 22-2, Chan Depo. Ex 10, PageID# 335–348). On or about September 19, 2017,
Plaintiff filed a complaint of discrimination and retaliation against Defendant with the Equal
Employment Opportunity Commission (EEOC), and the EEOC subsequently informed
Defendant of Plaintiff’s complaint. (R. 1-1, PageID# 22–23 ¶¶ 174–177; R. 28-2, PageID# 730–
732; R. 28-7, Escofil Depo., PageID# 1158–1159). On December 14, 2017, Defendant placed
Plaintiff on probation for purportedly failing to make material improvements in his job
performance since his mid-year performance review. (R. 21, PageID# 186; R. 22-2, Chan Depo.
Ex. 12, PageID# 349–353).
B. Plaintiff’s Alleged Misrepresentations and Termination
In January 2018, Plaintiff’s then-manager Virag Masuraha told Employee Relations
Specialist Tiana Escofil that he was concerned Plaintiff was not working out of his assigned PNC

office despite being advised of this requirement following his prior performance review. (R. 28-
7, Escofil Depo., PageID# 1150; R. 22-4, Escofil Decl., PageID# 372 ¶ 6). As a result, Escofil
obtained Plaintiff’s security badge swipe records for the prior three months and found that he had
only reported to the National City Center office on five days in November 2017, three days in
December 2017, and six days in January 2018. (R. 28-7, Escofil Depo., PageID# 1149–1153; R.
22-4, Escofil Decl., PageID# 372 ¶ 6; R. 22-4, Escofil Decl. Ex. D, PageID# 399, 409–411; R.
22-1, Chan Depo., PageID# 273–275).
On February 5, 2018, Escofil had a telephone conversation with Plaintiff, during which
Plaintiff allegedly told Escofil that he knew he was required to work from the National City
C enter Office, that he had not sought his manager’s permission to work elsewhere, and that he
worked almost daily from this required location. (R. 22-1, Chan Depo., PageID# 232; R. 22-4,
Escofil Decl., PageID# 372–373 ¶ 7; R. 22-4, Escofil Decl. Ex. D, PageID# 404–406). Escofil
then told Plaintiff that his badge swipe records did not support his statement that he worked from
his required location daily, and Plaintiff then admitted that he worked entire days from home
without permission. (R. 22-4, Escofil Decl., PageID# 372–373 ¶ 7; R. 22-4, Escofil Decl. Ex. D,
PageID# 399, 404–406; R. 22-1, Chan Depo., PageID# 231–232; R. 22-3, Escofil Depo.,
PageID# 365–366).
Later that day, Escofil called Plaintiff again, this time informing him that he had been
placed on paid administrative leave; Defendant intended to dismiss him for “dishonesty and poor
performance.” (R. 22-4, Escofil Decl., PageID# 372–374 ¶¶ 7–9; R. 22-4, Escofil Decl. Ex. D,
PageID# 406; R. 22-1, Chan Depo., PageID# 232–233). That evening, Plaintiff sent an email
complaint to several of Defendant’s executives. (R. 22-1, Chan Depo., PageID# 237–238; R. 22-
4, Escofil Decl., PageID# 373–374 ¶ 9).

Defendant terminated Plaintiff’s employment, upon Escofil’s recommendation, effective
February 22, 2018, allegedly for dishonesty and poor work performance. (R. 22-1, Chan Depo.,
PageID# 276; R. 22-3, Escofil Depo., PageID# 367–368; R. 22-4, Escofil Decl., PageID# 374 ¶
10).
III. Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Quinn v. Eshem, 2016 WL 9709498, at *2 (6th Cir. Dec. 20, 2016). There is a
genuine dispute as to a material fact when the “evidence is such that a reasonable jury could
re turn a verdict for the nonmoving party.” Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018)
(internal quotation marks omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
Non-moving parties may not rest upon the mere allegations in their pleadings nor upon
general allegations that issues of fact may exist. See Bryant v. Commonwealth of Ky., 490 F.2d
1273, 1275 (6th Cir. 1974). In ruling on a motion for summary judgment, the Court must construe
the evidence, as well as any inferences to be drawn from it, in the light most favorable to the
party opposing the motion. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th
Cir. 1990).
IV. Analysis
A. Discrimination
Plaintiff alleges that he was terminated and suffered other adverse employment
consequences due to his race and national origin in violation of Ohio Revised Code §§ 4112.01
and 4112.02(A). (R. 1-1, PageID# 29–31 ¶¶ 276–298). Under § 4112.02(A), it is unlawful “[f]or

any employer, because of the race, color, [or] . . . national origin . . . of any person, to discharge
without just cause, . . . [or] to discriminate against that person with respect to hire, tenure, terms,
conditions, or privileges of employment, or any matter directly or indirectly related to
employment.” Ohio Rev. Code § 4112.02(A).
The Ohio Supreme Court and Sixth Circuit have held that “federal case law interpreting
Title VII [of the Civil Rights Act of 1964] is generally applicable to employment discrimination
claims brought under Ohio Rev. Code § 4112.02.”3 Hightower v. Keystone Automotive Indus.,

3 Title VII’s parallel provision, 42 U.S.C. § 2000e-2(a), provides that “[i]t shall be an unlawful
employment practice for an employer . . . to discharge any individual, or otherwise to
20 23 WL 1412917, at *4 (N.D. Ohio Jan. 31, 2023) (citing Plumbers & Steamfitters Joint
Apprenticeship Comm. v. Ohio Civ. Rts. Comm’n, 421 N.E.2d 128, 131 (Ohio 1981)); Mitchell v.
Toledo Hop., 964 F.2d 577, 582 (6th Cir. 1992) (holding that discrimination claims brought under
Title VII and Ohio state law are examined using the same legal framework). Accordingly, the
Court applies the federal evidentiary framework to resolve Plaintiff’s state discrimination claims.
In the absence of direct evidence of racial discrimination, a plaintiff alleging such a claim
under Title VII must satisfy the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584,
593 (6th Cir. 2007). Under that framework, the plaintiff must first establish a prima facie case of
racial discrimination by demonstrating that “(1) [the plaintiff] is a member of a protected group,
(2) [the plaintiff] suffered an adverse employment action, (3) [the plaintiff] was qualified for the
position, and (4) [the plaintiff] was replaced by a person outside of the protected class or was
treated differently from similarly situated members of the unprotected class.” Michael, 496 F.3d
at 593; see also McDonnell Douglas, 411 U.S. at 802. If the plaintiff satisfies these factors, the

burden shifts to the defendant to produce a legitimate non-discriminatory reason for the alleged
discriminatory action. Smith v. Leggett Wire Co., 220 F.3d 752, 758–59 (6th Cir. 2000). If the
defense offers a legitimate non-discriminatory reason, then the burden shifts back to the plaintiff
to show that this reason is pretextual. Id. A plaintiff can show pretext in three ways: by offering
evidence that the defense’s proffered reasons (i) had no basis in fact, (ii) did not actually
motivate the action, or (iii) were insufficient to motivate the action. Kocsis v. Multi-Care Mgmt.,
Inc., 97 F.3d 876, 883 (6th Cir. 1996); see also Smith v. Chrysler Corp., 155 F.3d 799, 805–06

discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race . . . or national origin.”
(6 th Cir. 1998).
1. Termination
Assuming without deciding that Plaintiff has established a prima facie case of racial
discrimination, his claims still fail as they pertain to his termination. After Defendant proffered a
non-discriminatory reason for his termination Plaintiff bore the burden of establishing that this
reason was pretextual. Since Plaintiff never made such an argument in his briefing, he has
abandoned these claims.
When a motion for summary judgment is “properly made and supported and the
nonmoving party fails to respond with a showing sufficient to establish an essential element of
its case, summary judgment is appropriate.” Blissit v. Fiquris, 345 F. Supp. 3d 931, 937 (S.D.
Ohio 2018) (internal quotation marks omitted) (quoting Stansberry v. Air Wisc. Airlines Corp.,
651 F.3d 482, 486 (6th Cir. 2011)). Under Federal Rule of Civil Procedure 56, a party opposing
summary judgment “may not rely on allegations or denials in its own pleadings but rather must
offer evidence showing a genuine issue for trial.” Elec. Workers’ Ins. Fund v. Applied Bldg.

Techs., Inc., 2010 WL 1136497, at *1 (E.D. Mich. Mar. 22, 2010); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).
Moreover, Federal Rule of Civil Procedure 56(e) provides—and courts in the Sixth
Circuit have similarly held—that if a party “fails to properly address another party’s assertion of
fact,” then the trial court may “consider the fact undisputed for purposes of the motion” and find
abandonment of the non-moving party’s claim. Fed. R. Civ. P. 56(e)(2); Brown v. VHS of Mich.,
Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (“[A] plaintiff is deemed to have abandoned a claim
when a plaintiff fails to address it in response to a motion for summary judgment.”); Clark v.
City of Dublin, 178 F. App’x 522, 524–25 (6th Cir. 2006) (“The District Court also properly
fo und that [the appellant’s response] to the [motion for summary judgment] did not properly
respond to the arguments asserted against his ADEA and ADA claims . . . . The District Court
properly granted summary judgment because the Appellant failed to meet his Rule 56 burden.”);
Justice v. Atchison, 2009 WL 3413914, at *2 (E.D. Ky. Oct. 20, 2009) (“When a party fails to
respond to a motion or argument therein, the Sixth Circuit has held that the lack of response is
grounds for the district court to assume opposition to the motion is waived, and grant the
motion.” (citing Humphrey v. U.S. Att’y Gen.’s Office, 279 F. App’x 328, 331 (6th Cir. 2008))).
Here, Plaintiff never argues that Defendant’s proffered non-discriminatory reason for
Plaintiff’s termination—namely, that Plaintiff misrepresented his work location to Escofil—was
pretextual, so he has abandoned his claim that he was terminated due to his race or national
origin. (R. 21, PageID# 186–189). The closest that Plaintiff comes to broaching the subject of
pretext is his attempt to show that similarly situated employees were treated differently than him
at PNC—in other words, that Defendant’s proffered reason was insufficient to motivate his
termination. (R. 29, PageID# 1199–1201). To demonstrate pretext in this manner, Plaintiff “must

show by a preponderance of the evidence that ‘other employees, particularly employees not in
the protected class, were not fired even though they were engaged in substantially identical
conduct to that which the employer contends motivated its discharge.’” Santiago v. Meyer Tool
Inc., 2023 WL 3886405, at *7 (6th Cir. June 8, 2023) (emphases omitted) (quoting Blizzard v.
Marion Tech. Coll., 698 F.3d 275, 286–87 (6th Cir. 2012)).
Although Plaintiff points to “[a]ll other employees under Chang’s [sic] supervision” that
received higher performance reviews than Plaintiff as similarly situated to him, nowhere does
Plaintiff contend that these colleagues were accused of making misrepresentations to Defendant.
(R. 29, PageID# 1200). Simply put, there is no indication from Plaintiff’s briefing that these
ot her employees engaged in “substantially identical conduct” to him such that they demonstrate
Defendant’s proffered reason for Plaintiff’s termination is pretextual.
By failing to assert pretext, Plaintiff did not adequately respond to Defendant’s proffered
non-discriminatory reason for his termination. Accordingly, Plaintiff’s discrimination claims
pertaining to his termination fails because there is no disputed material issue of fact.
2. Other Alleged Adverse Employment Actions
The remainder of Plaintiff’s discrimination claims—pertaining to his negative
performance reviews, reduction of his 2016 bonus, and reallocation of job duties—also fail as a
matter of law because Plaintiff cannot establish a prima facie case of discrimination. See
McDonnell Douglas, 411 U.S. at 802. Despite Plaintiff’s arguments to the contrary, none of
these measures constitutes an adverse employment action.
An adverse employment action in the context of a Title VII discrimination claim is a
“materially adverse change in the terms or conditions of employment because of the employer’s
actions.” Michael, 496 F.3d at 593 (quoting Allen v. Mich. Dep’t of Corr., 165 F.3d 405, 410 (6th

Cir. 1999)). Adverse employment actions are “typically marked by a ‘significant change in
employment status,’ including ‘hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” Spees v. James
Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010) (quoting White v. Burlington N. & Santa Fe Ry.
Co., 364 F.3d 789, 795 (6th Cir. 2004) (en banc), aff’d 548 U.S. 53 (2006)).
In general, “a negative performance evaluation does not constitute an adverse
employment action unless the evaluation has an adverse impact on an employee’s wages or
salary.” White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008) (quoting Tuttle v.
Metro. Gov't of Nashville, 474 F.3d 307, 322 (6th Cir. 2007)); see also Holt v. Morgan, 79 F.
A pp’x 139, 141 (6th Cir. 2003) (“A performance evaluation that is lower than an employee feels
is warranted is not an adverse employment action sufficient to state a claim of discrimination.”);
Baker v. City of Toledo, 2007 WL 1101254, at *5 (N.D. Ohio Apr. 11, 2007) (holding “if a low
evaluation does not affect an employee’s raise or promotion, it is a de minimis employment
action” and cannot support a prima facie case of discrimination). Plaintiff does not indicate that
his substandard performance reviews had any adverse impact on his wages or salary, so these
reviews—standing on their own—do not constitute adverse employment actions.
Additionally, lowering or eliminating a merit-based bonus is not an adverse employment
action since employees are not entitled to such bonuses. See Primes v. Reno, 190 F.3d 765, 767
(6th Cir. 1999) (citing favorably to Rabonovitz v. Pena, 89 F.3d 482, 488–89 (7th Cir. 1996),
which held that “low performance evaluation and consequent ineligibility for discretionary bonus
[was] not actionable adverse employment action”); Baker v. Pactiv Corp., 2004 WL 812994, at
*3 (N.D. Ill. Apr. 14, 2004) (holding that a merit bonus increase less than the plaintiff had
expected was not an adverse employment action because bonuses are “given on a discretionary

basis” and that they are “not entitlements”); see also Barrett v. Lucent Techs., Inc., 36 F. App’x
835, 843–44 (6th Cir. 2002) (holding that where Plaintiff did not receive a bonus because her
employment was terminated for a “legitimate, nondiscriminatory reason,” this was not an
adverse employment action). Plaintiff’s reliance on HLS Bonding v. Ohio Civil Rights
Commission, 2008 WL 3522994 (Ohio Ct. App. 2008) to support his position to the contrary is
misplaced. (R. 29, PageID# 1200). In that case, the court found that the defendant unlawfully
retaliated against the plaintiff by, inter alia, reducing his pay. HLS Bonding, 2008 WL 3522994,
at *5. But an employee’s pay—unlike a merit bonus—is not subject to an employer’s discretion.
See Michael, 496 F.3d at 594 (“A materially adverse change might be indicated by . . . a
de motion evidenced by a decrease in wage or salary.” (emphases added) (quoting Ford v. Gen.
Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002), abrogated on other grounds, Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). Accordingly, the reasoning in HLS Bonding does
not apply to this case.
Finally, “[r]eassignments without salary or work hour changes do not ordinarily
constitute adverse employment decisions in employment discrimination claims.” Kocsis, 97 F.3d
at 885 (citing Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987)). However, even if a
reassignment is not paired with a salary or work-hour change, “it can nonetheless be considered
an adverse employment action where there is evidence that the employee received ‘a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices that might be unique to a particular situation.’” Spees, 617 F.3d at 391 (quoting
Kocsis, 97 F.3d at 886).
Aside from one email that Plaintiff himself sent on February 24, 2017, saying that “all
[his] work responsibilities . . . are gone,” (R. 29-9, PageID# 1259), the record is bereft of any

indication that Plaintiff’s workplace responsibilities significantly diminished during the course of
his employment. As far as the Court can glean from the evidence before it, the extent of the
changes in Plaintiff’s responsibilities amounted to (i) being asked to “not engage in the
Champion C&I Models” and “[a]ny SME related monitoring” (id., PageID# 1266), and (ii) his
transfer to the Anti-Money Laundering department in early 2017 (id., PageID# 1195). But these
alterations of responsibilities, without any other evidence, do not support an argument that
Plaintiff’s responsibilities were so severely diminished as to constitute an adverse employment
action. Indeed, the Head of Consumer Lending and Asset Resolution at Defendant, Lakhbir
Lamba—whose deposition testimony Plaintiff cites to support this argument—did not comment
on whether the changes to Plaintiff’s job constituted a removal of responsibilities. (R. 28-3,
Lamba Depo., PageID# 778, 827–834; R. 29, PageID# 1194).
Plaintiff has failed to establish that any of the consequences that he suffered at work were
adverse employment actions for the purposes of his discrimination claims. Accordingly,
Plaintiff’s discrimination claims fail in their entirety.
B. Retaliation
Plaintiff’s lone remaining claim is for unlawful retaliation in violation of Ohio Revised
Code § 4112.02(I), which provides that it is “unlawful discriminatory practice” for “any person
to discriminate in any manner against any other person because that person has opposed any
unlawful discriminatory practice defined in this section or because that person has made a
charge, testified, assisted, or participated in any manner in any investigation, proceeding, or
hearing under sections 4112.01 to 4112.07 of the Revised Code.” Ohio Rev. Code § 4112.02(I).
Plaintiff charges that Defendant unlawfully retaliated against him due to his engagement in three
separate protected activities: (i) his first internal complaint, dated February 24, 2017; (ii) the

complaint that Plaintiff filed with the EEOC on or around September 19, 2017; and (iii) the
email complaint Plaintiff sent to several of Defendant’s executives following his telephone
conversation with Escofil, on February 5, 2018.
The McDonnell Douglas framework also applies to retaliation claims,4 and Plaintiff once
again bears the initial burden of establishing a prima facie case, which can be done by showing

4 As before, the Court may look to federal law when analyzing the state law retaliation claim.
See Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501, 510 (6th Cir. 2016) (“Ohio courts have
held that federal law provides the applicable analysis for reviewing retaliation claims brought
under Ohio Rev. Code § 4112.02(I).” (internal quotation marks omitted) (alteration omitted)
(quoting Baker v. Buschman Co., 713 N.E.2d 487, 491 (Ohio Ct. App. 1998)) (citing Plumbers,
421 N.E.2d at 131).
“( 1) that he engaged in a protected activity; (2) that the defendant had knowledge of his protected
conduct; (3) that the defendant took an adverse employment action towards him; and (4) that
there was a causal connection between the protected activity and the adverse employment
action.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008) (quoting Weigel v.
Baptist Hosp. of E. Tenn., 302 F.3d 367, 381 (6th Cir. 2002)). If the plaintiff establishes a prima
facie case, the burden shifts to the defendant to articulate a non-discriminatory reason for its
actions. Id. at 526. If the defendant articulates such a reason, the plaintiff must then show that the
defendant’s stated reason is merely pretextual. Id.
As an initial matter, any potential adverse employment actions that Plaintiff experienced
prior to the filing of his first internal complaint on February 24, 2017, are outside the scope of
Plaintiff’s unlawful retaliation claim because those actions could not have been caused by
Plaintiff’s engagement in a protected activity. Therefore, to the extent that Plaintiff asserts his
retaliation claim regarding any of the following actions, such claim fails: (i) his mid-year and
end-of-year 2016 substandard performance reviews, which were issued on September 1, 2016,

and February 3, 2017, respectively (R. 22-2, Chan Depo. Ex. 5, PageID# 318; id., Chan Depo.
Ex. 6, PageID# 327); (ii) the reduction of his 2016 bonus, which occurred prior to his first
internal complaint (see, e.g., R. 29-9, PageID# 1253; R. 22-7, Olenak Depo. Ex. 5, PageID#
479–483); and (iii) the alleged reduction of his workplace responsibilities, which were detailed in
emails dated February 24, 2017, and prior (R. 29-9, PageID# 1253, 1266). Accordingly, this
leaves just two possible alleged retaliatory actions that were listed in Plaintiff’s Complaint: his
substandard mid-year 2017 performance review and his placement on administrative leave and
subsequent termination in February 2018. The Court starts with the latter since it is the heart of
Plaintiff’s claim.
In support of his retaliation claim, Plaintiff makes the sole argument in his summary
judgment briefing that because he can demonstrate temporal proximity between his protected
activities and his termination, he has satisfied the causation prong for a prima facie case. (R. 29,
PageID# 1202–1203). Setting aside for the moment that causation is merely a necessary, not
sufficient, factor for establishing a prima facie case—and even that establishing a prima facie
case, by itself, does not mean a claim survives summary judgment—Plaintiff has not satisfied the
causation requirement.
Although temporal proximity between an adverse action and protected activity may serve
as evidence of retaliation, such evidence standing alone is typically insufficient to establish a
causal connection for a retaliation claim. Tuttle, 474 F.3d at 321. As summarized by the Sixth
Circuit in Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008), where an adverse
employment action “occurs very close in time after an employer learns of a protected activity,
such temporal proximity between the events is significant enough to constitute evidence of a
causal connection for the purposes of satisfying a prima facie case of retaliation.” However,

when “some time elapses” between when the employer learns of a protected activity and the
subsequent adverse employment action, the employee “must couple temporal proximity with
other evidence of retaliatory conduct to establish causality.” Id. (citing Little v. BP Exploration
& Oil Co., 265 F.3d 357, 365 (6th Cir. 2001)).
Although there is no bright line rule for the amount of time that may elapse between a
protected activity and an adverse employment action before there is a lack of temporal
proximity, the Sixth Circuit has noted that cases in which courts have found a prima facie case
based on temporal proximity have generally involved periods of less than six months. Id. at 524
n.3. That being said, courts have also rejected temporal proximity arguments for periods of less
th an six months. See, e.g., Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986)
(“The mere fact that [the plaintiff] was discharged four months after filing a discrimination claim
is insufficient to support an inference of retaliation.”). Furthermore, “‘an intervening legitimate
reason’ to take an adverse employment action ‘dispels an inference of retaliation based on
temporal proximity.’” Kuhn v. Washtenaw Cty., 709 F.3d 612, 628 (6th Cir. 2013) (quoting
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012)).
Plaintiff has failed to establish temporal proximity between any of his alleged protected
activities and his subsequent placement on administrative leave and eventual termination.
Plaintiff’s first internal complaint of discrimination, filed on February 24, 2017, predated his
termination by nearly one year; and his EEOC complaint, filed on or around September 19, 2017,
did so by approximately five months. Apparently conceding that too much time had passed
between these two activities and his termination for him to establish causation based solely on
temporal proximity, Plaintiff’s argument focuses on the short amount of time that elapsed
between his email complaint to Defendant’s executives, dated February 5, 2018, and his

subsequent termination on February 22, 2018. (R. 29, PageID# 1202–1203). But Plaintiff offers
no reason why the Court should cherry pick only his latest alleged protected activity for the
purposes of determining whether there is temporal proximity between that activity and his
termination; indeed, it appears that the complaints raised in the February 2018 email regarding
Plaintiff’s alleged mistreatment were similar to the issues raised in his February 2017 internal
complaint and September 2017 EEOC complaint. (R. 29, PageID# 1196). That being the case,
the Court finds that the temporal connection between Plaintiff’s February 2018 email complaint
and his termination to be tenuous at best, since Defendant did not retaliate against either of his
prior, similar complaints with a swift termination. Therefore, Plaintiff has failed to satisfy the
ca usation requirement and has not established a prima facie case of retaliation.
Moreover, Plaintiff’s attempts to satisfy causation fail for an even more fundamental
reason. As the Court explained above regarding his discrimination claim, Plaintiff has not
rebutted Defendant’s proffered legitimate, non-discriminatory reason for Plaintiff’s placement on
administrative leave and subsequent termination—his work performance and misrepresentations
to Escofil on February 5, 2018, about working in the office. Indeed, Plaintiff made these alleged
misrepresentations to Escofil, and was consequently placed on paid administrative leave with the
intention of termination, hours before he sent his email complaint to Defendant’s executives. (R.
22-4, Escofil Decl. Ex. D, PageID# 404–405 (noting that Plaintiff made misrepresentations to
Escofil at approximately 1:30 p.m. on February 5, 2018); id., PageID# 406 (noting that Escofil
contacted Plaintiff and advised him that he was being placed on paid leave on the same day at
approximately 5:00 p.m.); R. 22-1, Chan Depo. PageID# 237 (Chan’s testimony that he sent an
email complaint to Defendant’s executives at approximately 9:40 p.m. on the same day)). Not
only does Plaintiff’s dishonesty “dispel an inference of retaliation” based on temporal proximity

because it is a legitimate ground for his placement on administrative leave and subsequent
termination, Plaintiff never rebutted this non-discriminatory reason as pretext for his dismissal.
Therefore, Plaintiff has not carried his burden pursuant to the final step of the McDonnell
Douglas framework. Accordingly, Plaintiff’s unlawful retaliation claim as it pertains to his
placement on administrative leave and subsequent termination fails.
All that remains is Plaintiff’s retaliation claim as it pertains to his 2017 mid-year
performance evaluation, as well as Defendant’s ensuing written warning and performance
development plan. Because the review was conducted on or around September 11, 2017, and the
written warning and development plan were issued three days later, the only protected activity
th at could have resulted in retaliation was Plaintiff’s February 2017 internal complaint. (R. 22-2,
Chan Depo. Ex. 7, PageID# 329–334; R. 22-2, Chan Depo. Ex. 10, PageID# 336–339; R. 22-2,
Chan Depo. Ex. 11, PageID# 341–348). But again, Plaintiff has failed to satisfy the causation
prong of a prima facie case. Plaintiff’s substandard work performance was well-documented

prior to 2017, so a legitimate reason for his poor mid-year 2017 review is simply that Plaintiff
did not meet the expectations of his job. The mere fact that Plaintiff filed an internal complaint
approximately seven months prior to the issuance of his 2017 review does not sufficiently
establish causation. Therefore, the remainder of Plaintiff’s unlawful retaliation claim also fails.
V.Conclusion
Defendant’s Motion for Summary Judgment (R. 20) is GRANTED for the foregoing
reasons. Therefore, this action is DISMISSED with prejudice.
IT IS SO ORDERED.

s/ David A. Ruiz
David A. Ruiz
United States District Judge
Date: March 28, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10373257. Public record. Not legal advice.